SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): January 10, 1995
SEALED AIR CORPORATION
(Exact name of registrant as specified in its charter)
State or other jurisdiction of incorporation: Delaware
Commission File Number 1-7834
I.R.S. Employer Identification Number 22-1682767
Address of principal executive offices: Park 80 East
Saddle Brook, New Jersey
07663-5291
Registrant's telephone number, including area code: (201) 791-7600
Former name or former address, if changed since last report: Not applicable
<PAGE>
Item 2. Acquisition or Disposition of Assets.
On January 10, 1995, Sealed Air Corporation ("Sealed
Air") acquired Trigon Industries Limited, a privately owned New
Zealand corporation ("Trigon"), pursuant to a Share Purchase
Agreement dated as of January 10, 1995 (the "Share Purchase
Agreement") among Sealed Air, Trigon, Sealed Air Holdings (NZ)
Limited, a wholly owned New Zealand subsidiary of Sealed Air
("Holdings"), and James William Ferguson Foreman and Diane
Shirley Foreman (the "Trigon Shareholders") and certain related
transactions, in exchange for 882,930 newly-issued shares (the
"Sealed Air Shares") of Sealed Air's common stock, par value
$0.01 per share ("Sealed Air Common Stock"), which Sealed Air
Shares were issued pursuant to an exemption from registration
under the Securities Act of 1933, as amended (the "Securities
Act"), and $25,496,000 in cash. The cash portion of the purchase
price was paid by borrowings by Sealed Air and certain of its
subsidiaries under available lines of credit, including primarily
borrowings under the Credit Agreement dated as of June 8, 1994,
as amended, among Sealed Air, certain of its subsidiaries,
Bankers Trust Company, as agent, and various financial
institutions. The acquisition price was determined based upon
Sealed Air's investigation and evaluation of the business of
Trigon and arms'-length negotiations, and the number of shares of
Sealed Air Common Stock issued in the acquisition was determined
based upon a formula set forth in the Share Purchase Agreement.
Sealed Air has agreed with the Trigon Shareholders to
register the Sealed Air Shares for resale under the Securities
Act as promptly as such registration may be effected and to use
reasonable commercial efforts to keep such registration effective
until January 10, 1998. At the election of the Trigon
Shareholders, within 30 days after such registration becomes
effective,
1
<PAGE>
they may cause all or any portion of the Sealed Air
Shares to be deposited with a mutually acceptable brokerage firm
or other financial institution. With respect to all sales of the
Sealed Air Shares so deposited and sold within the subsequent 90
days (or reasonable extensions thereof), if the aggregate amount
realized (net of all reasonable costs and expenses) upon the sale
of such Sealed Air Shares is less than the aggregate value of
such shares based upon their Average Closing Market Price
(approximately $35.70 (U.S.) per share) expressed in New Zealand
Dollars determined at the time of their issuance pursuant to the
Share Purchase Agreement, then Sealed Air and Holdings are
obligated to pay the Trigon Shareholders cash in New Zealand
Dollars in an amount equal to the amount of such deficiency.
However, if such aggregate amount realized (net of all reasonable
costs and expenses) upon the sale of such Sealed Air Shares
exceeds such aggregate value at the time of their issuance,
Holdings is entitled to receive the amount of such excess from
the Trigon Shareholders. Pursuant to the Share Purchase
Agreement, Sealed Air and Holdings are obligated, against tender
of the Sealed Air Shares to or upon the instructions of Sealed
Air, to pay the Trigon Shareholders an amount in cash in New
Zealand Dollars equal to the value of the Sealed Air Shares based
upon the Average Closing Market Price at the time of their
issuance if the registration of the Sealed Air Shares does not
become effective within 90 days after January 10, 1995 for any
reason other than the fault of the Trigon Shareholders or their
representatives.
Trigon is engaged primarily in the manufacture and sale
of flexible packaging materials sold primarily for food
packaging, durable envelope products for the banking, security
and courier industries, and specialty adhesive products in
Australasia, Europe and the United States. Trigon employs
approximately 730 people in six manufacturing facilities in New
2
<PAGE>
Zealand, England and the United States and in administrative,
research and sales offices in Australia and Germany. Sealed Air
intends to combine Trigon's business with Sealed Air's other
protective and specialty packaging businesses.
Sealed Air believes that the acquisition of Trigon will
enable Sealed Air to expand its protective and specialty
packaging product lines and the geographical scope of its
operations and will give Sealed Air access to additional
manufacturing technology and research and development
capabilities.
Item 5. Other Events.
Unaudited consolidated condensed balance sheets as of
December 31, 1994 and 1993 and the related unaudited consolidated
condensed statements of earnings for each of the years in the
two-year period ended December 31, 1994 for Sealed Air are being
filed herewith as part of Item 7. Certain of such financial
information was included in Sealed Air's press release dated
January 19, 1995 reporting its operating results for 1994.
Item 7. Financial Statements and Exhibits.
(a) Financial Statements of Businesses Acquired.
The financial statements and financial information of
Trigon filed herewith are listed in the Index to Financial
Statements and Pro Forma Financial Information beginning on page
F-1.
(b) Unaudited Financial Information of Sealed Air.
The unaudited consolidated condensed balance sheets and
the related unaudited consolidated condensed statements of
earnings of Sealed Air filed herewith are listed in the Index to
Financial Statements and Pro Forma Financial Information
beginning on page F-1.
3
<PAGE>
(c) Pro Forma Financial Information.
The pro forma financial information filed herewith is
listed in the Index to Financial Statements and Pro Forma
Financial Information beginning on page F-1.
(d) Exhibits.
Exhibit Number Description
2 Share Purchase Agreement dated as of January
10, 1995 among Sealed Air Corporation, Trigon
Industries Limited, Sealed Air Holdings (NZ)
Limited, a wholly owned New Zealand
subsidiary of Sealed Air, James William
Ferguson Foreman and Diane Shirley Foreman.
4.1 Consent to Credit Agreement among Sealed Air,
certain of its subsidiaries, various
financial institutions and Bankers Trust
Company, as agent, dated as of December 7,
1994.
4.2 Amendment No. 1 to Credit Agreement among
Sealed Air, certain of its subsidiaries,
various financial institutions and Bankers
Trust Company, as agent, dated as of January
3, 1995.
24 Consent of Ernst & Young to the incorporation
by reference into Sealed Air's Registration
Statements on Form S-3, File No. 33-53751,
File No. 33-55739, File No. 33-66716 and File
No. 33-68614, and Registration Statement on
Form S-8, File No. 33-41734, of their report
on page F-19 of this Current Report on Form 8-
K.
4
<PAGE>
Signatures
Pursuant to the requirements of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be
signed on its behalf by the undersigned hereunto duly authorized.
SEALED AIR CORPORATION
(Registrant)
By WILLIAM V. HICKEY
William V. Hickey
Executive Vice President
Date: January 24, 1995
5
INDEX TO FINANCIAL STATEMENTS AND
PRO FORMA FINANCIAL INFORMATION
Page
Number
A. Consolidated Financial Statements of Trigon Industries
Limited
Consolidated Income Statement for the year to
June 30, 1994 F-2
Consolidated Balance Sheet as at June 30, 1994 F-3
Notes to the accounts F-4
Consolidated Statement of Cash Flows for the year
ended June 30, 1994 F-18
Report of Independent Chartered Accountants dated
August 26, 1994 (December 21, 1994 as to certain
information in notes 16, 23 and 24) F-19
B. Unaudited Interim Financial Information of Trigon
Industries Limited
Consolidated Income Statements for the quarters ended
September 30, 1994 and 1993 F-20
Consolidated Balance Sheet as of September 30, 1994 F-21
Notes to unaudited interim consolidated financial information F-22
C. Unaudited Financial Information of Sealed Air Corporation
(certain information previously presented in the Company's
press release made public on January 19, 1995)
Unaudited Consolidated Condensed Statement of Earnings
for the years ended December 31, 1994 and 1993 F-23
Unaudited Consolidated Condensed Balance Sheet,
December 31, 1994 and 1993 F-24
Notes to unaudited consolidated condensed financial information F-25
D. Unaudited Pro Forma Condensed Consolidating Financial Information
Unaudited Pro Forma Condensed Consolidating Statement of
Earnings for the year ended December 31, 1994 F-26
Unaudited Pro Forma Condensed Consolidating Balance Sheet,
December 31, 1994 F-27
Notes to Unaudited Pro Forma Condensed Consolidating Financial
Information F-29
F-1
<TABLE>
FINANCIAL STATEMENTS 1
<CAPTION>
TRIGON INDUSTRIES LIMITED CONSOLIDATED INCOME STATEMENT
For the Year to 30 June 1994 Notes 1994 1993
$000 $000
<S> <C> <C> <C>
SALES REVENUE 16 123,293 118,136
OPERATING EARNINGS 2 9,702 9,021
Income Taxes (Payable) Credit 3 (3,694) (3,552)
NET PROFIT After Tax and
Available For Appropriation 6,008 5,469
Share of Associated Company Results 4 0 47
Minority Interests (89) (70)
RETAINED EARNINGS Brought Forward 14,362 10,684
Transfer from Reserves 230 32
Dividends Declared 13 (2,000) (1,800)
RETAINED EARNINGS Carried Forward 18,511 14,362
This statement is to be read in conjunction with the Notes on pages 3 to 16
F-2
</TABLE>
<TABLE>
FINANCIAL STATEMENTS 2
TRIGON INDUSTRIES LIMITED CONSOLIDATED BALANCE SHEET
As At 30 June 1994
<CAPTION>
Notes 1994 1993
$000 $000
<S> <C> <C> <C>
SHAREHOLDERS FUNDS
Share Capital 5 5,000 5,000
Reserves 6 10,311 12,288
Retained Earnings 18,511 14,362
Total Shareholders Funds 33,822 31,650
Minority Interests 232 170
TOTAL CAPITAL FUNDS EMPLOYED 34,054 31,820
LIABILITIES
Bank Overdraft 11 1,650 3,434
Accounts Payable 14,292 12,201
Current Portion Term Liabilities 12 1,562 1,052
Provision For Tax 94 720
Provision For Dividend 13 1,250 1,100
Total Current Liabilities 18,848 18,507
Provision For Deferred Tax 522 149
Term Liabilities And Provisions 12 26,277 22,759
TOTAL LIABILITIES 45,647 41,415
79,701 73,235
ASSETS
Liquid Funds 0 0
Accounts Receivable 9 21,654 22,368
Inventories 10 14,490 15,279
Total Current Assets 36,144 37,647
Fixed Assets 7 43,515 35,535
Investments 8 42 53
TOTAL ASSETS 79,701 73,235
Equity Ratio 42.7% 43.5%
Equity Ratio Excluding Atlanta 45.7%
Director c\J. W. F. Foreman Director c\Reno Wijnstok
This statement is to be read in conjunction with the Notes on pages 3 to 16
F-3
</TABLE>
NOTES TO THE ACCOUNTS 3
1) STATEMENT OF ACCOUNTING POLICIES
General Accounting Policies
The general accounting principles recognised as appropriate for the
measurement and reporting of earnings and financial position on an
historical cost basis are followed by the Group, with the exception
that certain fixed assets have been revalued. Accrual accounting
is used to match revenue and expenses. Reliance is placed upon the
fact that the Group is a going concern.
Particular Accounting Policies
The following particular accounting policies which materially
affect the measurement of profit and the financial position have
been applied:
PRINCIPLES OF CONSOLIDATION
The Consolidated Financial Statements include the holding company
and all its subsidiaries accounted for using the purchase method.
All significant intercompany transactions are eliminated on
consolidation.
ASSOCIATE COMPANIES
These are companies in which the Trigon Industries Limited Group
has shareholdings of between twenty and fifty per cent or less.
The accounts of associate companies have been reflected in the
consolidated accounts on an equity accounting basis which shows the
Group's share of profits in the consolidated income statement, and
its share of post acquisition increases or decreases in net assets,
in the consolidated balance sheet.
INVENTORY VALUATION
Inventory is valued at the lower of cost and net realisable value.
For raw materials, cost is determined on a weighted average basis,
and for work in progress and manufactured inventory, cost includes
materials and direct labour, plus an appropriate proportion of
manufacturing overhead.
ACCOUNTS RECEIVABLE
Accounts Receivable are included at expected realisable values
based upon experience and information available at balance date.
INCOME TAX
The income tax expense charged to the consolidated income statement
includes both the current year expense and the income tax effects
of timing differences calculated using the liability method.
Tax effect accounting is applied on a comprehensive basis to all
timing differences. A debit balance in the deferred tax account,
arising from timing differences or income tax benefits from income
tax losses, is recognised only if there is virtual certainty of
realisation.
F-4
NOTES TO THE ACCOUNTS 4
FIXED ASSETS AND DEPRECIATION
Fixed Assets are stated at cost or at a valuation determined by
independent registered valuers in accordance with professional
valuation standards in each country of operation.
Fixed Assets are depreciated on a straight line basis over their
anticipated useful lives. For major classes of Fixed Assets, the
expected useful lives are:
Buildings 40 -100 years
Plant and Machinery 10-25 years
Vehicles 3-5 years
Furniture and Fittings 5-10 years
LEASING
Group subsidiaries lease certain plant and equipment and land and
buildings.
Finance leases, which effectively transfer to the entity
substantially all of the risks and benefits incidental to ownership
of the leased item, are capitalised at the present value of the
minimum lease payments. The leased assets and corresponding
liabilities are disclosed and the leased assets are depreciated
over the period the entity is expected to benefit from their use.
Operating lease payments, where the lessors effectively retain
substantially all the risks and benefits of ownership of the leased
items, are included in the determination of the operating earnings
in equal instalments over the lease term.
FINANCIAL INSTRUMENTS
On balance sheet financial instruments are generally recorded at
fair market value.
The company is party to financial instruments with off balance
sheet risk to reduce exposure to fluctuations in foreign currency
exchange and interest rates. These include foreign exchange
forward contracts and option contracts. Any gains or losses
arising from valuing these contracts at the appropriate rates at
balance date are recorded for financial purposes according to the
type of transaction hedged.
FOREIGN CURRENCIES
Transactions in foreign currencies are converted at the New Zealand
rate of exchange ruling at the date of the transaction. Monetary
assets and liabilities denominated in foreign currencies and the
financial statements of independent foreign subsidiaries have been
translated at rates ruling at balance date or at forward rates
where applicable.
Exchange gains and losses are recognised in the Income Statement
except for exchange differences arising from the translation of the
net investment in independent foreign subsidiaries which are taken
directly to the Foreign Currency Translation Reserve.
CHANGES TO ACCOUNTING POLICIES
There have been no changes in accounting policies during the year
ended 30 June 1994. All policies have been applied on bases
consistent with those used in previous years.
F-5
<TABLE>
NOTES TO THE ACCOUNTS 5
<CAPTION>
1994 1993
$000 $000
<S> <C> <C>
2) OPERATING EARNINGS
In arriving at Operating Earnings from
Continuing Operations, the following items
have been included.
Earnings from Trading 20,832 17,609
Less : Audit Fees (202) (200)
Depreciation (5,134) (4,659)
Directors Fees (133) (54)
Interest - Loans (1,740) (1,831)
Interest - Other (1,484) (346)
Interest - re Lease of Fixed Assets (357) (253)
Operating Leases (2,080) (1,245)
Operating Earnings from Continuing Operations 9,702 9,021
3) PROVISION FOR INCOME TAX
Prima facie taxation (on Earnings from Continuing
Operations less Abnormal Items) 3,259 3,025
Permanent Adjustments 490 614
Adjustment for available Tax Losses brought forward (55) (87)
Adjustment for Dividends Received 0 0
Income Tax expense (credit) 3,694 3,552
The taxation charge is represented by:
Current Taxation 3,321 3,069
Deferred Taxation 373 483
3,694 3,552
Prima facie income tax has been arrived at using tax rates applicable in the country of operation.
NZ 33 % (1993 33 %), Aust 33 % (1993 39 %), UK 33 % (1993 35 %), US 35 % (1993 35 %),
Germany 35 % (1993 35 %).
There are no material income tax losses to carry forward.
F-6
</TABLE>
<TABLE>
<CAPTION> 1994 1993
$000 $000
<S> <C> <C>
4) ASSOCIATED COMPANIES
The share of Profits of Associated Companies
represents the results of the Groups interests
as follows:
50% of Flexipak Private Ltd - Singapore
Pre Tax 0 75
Tax 0 (26)
Post Tax 0 49
The 50% shareholding in Flexipak Private Ltd
was sold at 31 December 1992 for the net asset value
16% of PSE - France (1993 25%)
Pre Tax 0 (2)
Tax 0 0
Post Tax 0 (2)
Total Post Tax 0 47
TIL's ownership in PSE was diluted during 1994 by
way of a capital injection from other shareholders.
Trigon did not participate in the capital injection.
As a result of this reduction PSE is no longer
classified as an Associate Company.
5) SHARE CAPITAL
Authorised, Issued and Paid Up Capital
6,945,282 A ordinary shares of $0.50 each 3,473 3,473
1,272,918 B ordinary shares of $0.50 each 636 636
1,781,800 C preference shares of $0.50 each 891 891
All shares issued rank equally as to dividend,
with the C shares having preference to the
repayment of Capital.
5,000 5,000
F-7
</TABLE>
<TABLE>
NOTES TO THE ACCOUNTS 7
<CAPTION>
1994 1993
6) RESERVES $000 $000
<S> <C> <C>
CAPITAL
Fixed Asset Revaluation A 10,256 10,900
Share Premium Account 403 403
Capital Reserve on sale of assets 308 308
10,967 11,611
REVENUE
Revenue Reserve B 638 696
Foreign Currency Translation Reserve C (1,294) (19)
(656) 677
10,311 12,288
The net movements in the Reserves are
as follows :
A) The land sold at Telford during 1994 had previously been revalued by
(British pound) 153,300. Machinery was sold for a loss of $173,000.
There was also a foreign exchange loss on the UK revaluation of $52,000.
B) Grants received from the UK Government relating to development and investments
in the UK. Enterprise Zone at Telford, are amortised over the life of the assets
for which the grant was earned. During 1993/94 (British pound)33,200 was written back.
C) The Foreign Currency Translation Reserve reflects the change in the net investment
in offshore subsidiaries. The movement results from changes in exchange rates due
to the strengthening of the NZ dollar.
7) FIXED ASSETS
Land At Valuation 1,491 2,054
Buildings At Valuation 11,430 5,640
Accumulated Depreciation (334) (211)
Book Value 11,096 5,429
Plant & Machinery At Cost or Valuation 47,440 40,687
Accumulated Depreciation (19,883) (16,070)
Book Value 27,557 24,617
Equipment, Vehicles & Other at Cost or Valuation 7,025 7,340
Accumulated Depreciation (3,654) (3,905)
Book Value 3,371 3,435
Net Carrying Value 43,515 35,535
Leased Assets
Included in Fixed Assets are assets costing $8,222,100 which are financed by lease
arrangements. These are made up of Land and Buildings at Atlanta costing $5,216,000
(BV = $5,216,000), Plant and Machinery costing $1,985,200 (Acc Depn = $1,058,500 BV
= $926,700) and Equipment and Vehicles costing $1,020,900 (Acc Depn = $499,000 BV
= $521,900).
F-8
</TABLE>
NOTES TO THE ACCOUNTS 8
<TABLE>
<CAPTION>
Valuation
Freehold Land and Buildings and major items of Plant & Machinery (Extrusion, Printing and
Conversion Machines) were revalued on 31 December 1991 by the following registered valuers:
Edward Rushton New Zealand Ltd
Brian Rushton Ltd (UK)
Frank Innes Ltd (UK)
American Appraisal Associates (USA)
These assets were revalued using the 'existing use' valuation basis.
1994 1993
$000 $000
<S> <C> <C>
8) INVESTMENTS
Interest in subsidiary companies at cost (Note 18) 0 0
Amounts due from subsidiary companies 0 0
Interests in associated companies (Note 19)
At cost 16 16
Share of increase in Net Assets 26 37
42 53
Total Investments 42 53
9) ACCOUNTS RECEIVABLE
Trade Receivables, Bills Receivable, Sundry
Deposits and Prepayments 21,397 20,969
Loans to Shareholders / Employee Trust 257 1,399
21,654 22,368
10) INVENTORIES
Raw Materials 4,510 5,291
Work in Progress 2,489 2,676
Finished Goods 7,491 7,139
Goods in Transit 0 173
14,490 15,279
F-9
</TABLE>
<TABLE>
NOTES TO THE ACCOUNTS 9
1994 1993
$000 $000
<S> <C> <C>
11) BANK OVERDRAFT
Lloyd's Bank (UK) 1,938 3,563
Miscellaneous Bank Balances 903 304
Secured by way of floating charges and/or
guarantees over company undertakings.
2,841 3,867
Less Liquid Funds (1,191) (433)
1,650 3,434
Interest rates applicable to overdrafts vary
within the range of 6.00% to 12.00%.
12) TERM LIABILITIES AND PROVISIONS
Hire Purchase Contracts 441 2,094
Mortgages 0 3,374
Term Loans & Capitalised Leases 27,398 18,343
27,839 23,811
Term Liabilities are repayable as follows:
Current Portion payable within 12 months 1,562 1,052
Long Term Portion payable after 12 months 26,277 22,759
27,839 23,811
All term loans are secured by way of debenture,
mortgage or other specific charges over assets.
Interest rates applicable to term loans and
mortgages vary within the following range:
Term Loans 5.60% - 7.75%
Hire Purchase 7.88% - 11.30%
Repayable as follows:
One to Two Years 18,398 17,394
Two to Three Years 178 1,392
Three to Four Years 160 802
Four to Five Years 160 791
Five Years + 7,381 2,380
26,277 22,759
13) DIVIDENDS
Interim Dividend Declared and Paid 750 700
Final Dividend Proposed 1,250 1,100
2,000 1,800
F-10
</TABLE>
<TABLE>
NOTES TO THE ACCOUNTS 10
<CAPTION>
14) RECONCILIATION OF NET PROFIT AFTER
TAXATION WITH CASH INFLOW FROM 1994 1993
OPERATING ACTIVITIES $000 $000
<S> <C> <C>
Reported surplus after taxation and before including
share of retained surplus of associate 6,008 5,469
Add non-cash items:
Depreciation 5,134 4,659
Movement in deferred taxation 373 483
Unrealised foreign currency translation losses 127 725
5,634 5,867
Gross Cash Flow From Operating Activities 11,642 11,336
Movement in working capital:
Increase (decrease) in trade creditors 2,091 (3,626)
Increase (decrease) in taxation payable (626) (656)
(Increase) decrease in debtors 714 (3,326)
(Increase) decrease in inventory 789 (919)
2,968 (8,527)
Net Cash Inflow From Operating Activities 14,610 2,809
</TABLE>
<TABLE>
<CAPTION>
15) COMMITMENTS 1994 1993
$000 $000
<S> <C> <C>
(Other than provided for in accounts)
Contracts for capital expenditure 5,045 635
Operating lease commitments
less than one year 2,791 2,223
between one and two years 2,428 1,915
between two and five years 5,165 4,605
greater than five years 9,404 7,695
19,788 16,438
24,833 17,073
F-11
</TABLE>
<TABLE>
NOTES TO THE ACCOUNTS 11
<CAPTION>
16) SEGMENT INFORMATION
Industry Segments Packaging Other Elimination Consolidated
1994 1993 1994 1993 1994 1993 1994 1993
<S> <C> <C> <C> <C> <C> <C> <C> <C>
External Sales 111,944 104,513 11,349 13,623 123,293 118,136
Inter segment Sales 41 0 1,161 1,384 (1,202) (1,384) 0 0
Total Sales 111,985 104,513 12,510 15,007 (1,202) (1,384)123,293 118,136
Segment Result 9,838 7,844 1,683 1,164 11,521 9,008
Unallocated Expenses & Taxation (5,513) (3,539)
Group Operating Profit 6,008 5,469
Segment Assets 72,655 65,618 3,694 3,171 76,349 68,789
Unallocated Assets 3,351 4,447
Total Assets 79,700 73,236
</TABLE>
<TABLE>
<CAPTION>
Geographic Segments New Zealand Australia United States Europe Elimination Consolidated
1994 1993 1994 1993 1994 1993 1994 1993 1994 1993 1994 1993
$000 $000 $000 $000 $000 $000 $000 $000 $000 $000 $000 $000
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
External Sales 50,847 48,375 12,075 9,503 23,737 22,536 36,634 37,722 123,293 118,136
Inter segment Sales 11,795 10,301 0 0 0 0 428 0 (12,223)(10,301) 0 0
Total Sales 62,642 58,676 12,075 9,503 23,737 22,536 37,062 37,722 (12,223)(10,301) 123,293 118,136
Segment Result 5,169 5,433 (23) 224 2,795 2,549 1,761 577 0 238 9,702 9,021
Unallocated Expenses & Taxation (3,694) (3,552)
Group Operating Profit 6,008 5,469
Segment Assets 35,530 35,624 5,279 4,584 14,989 7,648 23,902 25,380 0 0 79,700 73,236
</TABLE>
<TABLE>
<CAPTION>
The group operates predominantly in one industry - packaging, and in four geographical areas- New Zealand,
Australia, United States and Europe. The packaging operations comprise the manufacture and distribution of food
packaging products and plastic envelopes. The group also provides other ancillary products to industry. Intersegment
sales are generally at market price and are payable on normal commercial terms and conditions.
F-12
NOTES TO THE ACCOUNTS 12
<S> <C> <C>
17) CONTINGENT LIABILITIES
There are no contingent liabilities at Balance Date.
18) GROUP COMPANIES (All companies have a June Balance Date)
Name of Company Principal Activity Percentage Paid Up
Held
Holding Company
Trigon Industries Limited Overall control of Group Operations NZ$5,000,000
Subsidiary Companies
Trigon Packaging Systems Manufacture and marketing of packaging systems, 100% NZ$400,000
(NZ) Limited flexible packaging and Telflex envelopes
Trigon Engineering Limited Contract, develop and manufacture flexible 100% NIL
packaging systems equipment
Danco (NZ) Limited Manufacture of self-adhesive tapes 95.25% NZ$146,000
Foreman Investments Limited Property owning 100% NZ$300,000
Trigon Packaging Systems European Holding Company and property owning 100% UK(pound)575,000
(Europe) Limited
Trigon Packaging Systems Manufacture and marketing of packaging systems 100% UK(pound)100
(UK) Limited and flexible packaging
Trigon Cambridge Limited Manufacture and marketing of envelopes in UK 100% UK(pound)500,000
Trigon Packaging Corporation Manufacture and marketing of envelopes in USA 100% US$55,000
Trigon Verpackungssysteme Marketing of packaging systems and flexible 100% DM450,000
GmbH packaging in Europe
Trigon Packaging Systems Marketing of packaging systems, flexible packaging 100% A$50,000
(Australia) Pty Limited and Telflex envelopes in Australia
Trigon Consumer Products Non-trading 100% NZ$750,000
Limited
Trigon Finance Limited Non-trading 100% NIL
Tri-Vinyl Limited Non-trading 100% NZ$10,000
Pak-Line Distributors Limited Non-trading 100% NIL
Tri-Engle Systems Limited Non-trading 100% NZ$5,000
(Shares owned by Trigon Packaging (NZ) Ltd)
Balance Date = 30/06/94
</TABLE>
<TABLE>
19) ASSOCIATE COMPANIES
TIL's ownership in PSE was diluted during 1994 by way of a capital injection from other shareholders.
Trigon did not participate in the capital injection. As a result of this reduction PSE is no longer
classified as an associate company.
F-13
NOTES TO THE ACCOUNTS 13
20) RELATED PARTY TRANSACTIONS
During the year there have been no material transactions with related parties.
No related party debts have been written off or forgiven during the year.
21) FINANCIAL INSTRUMENTS
CREDIT RISK
Financial instruments which potentially subject the Group to credit risk principally consist of bank
balances, debtors and financial guarantees.
The Group performs credit evaluations on all customers requiring credit and generally does not
require collateral.
The Group continuously monitors the credit quality of the major international financial institutions
that are counter parties to its off balance sheet financial instruments and does not anticipate non
performance by the counter parties.
1994 1994
The fair value of the financial instruments as at balance date are:
Amount Value
$'000 $'000
Bank Balances (1,650) (1,650)
Accounts Receivable 21,654 21,654
Short Term Debt (1,562) (1,562)
Long Term Debt (26,277) (26,277)
Accounts Payable (14,292) (14,292)
Forward Exchange Contracts 0 10
The following methods and assumptions were used to estimate the fair value of each class of financial
instrument:
Bank Balances, Accounts Receivable, Short Term Debt and Accounts Payable
The carrying amounts of these balances are equivalent to their fair value.
Long Term Debt
The fair value of long term debt is estimated based on current market interest rates available to the
Group for debt of similar maturities.
Forward Exchange Contracts
The fair value of the profit or loss of forward exchange contracts is estimated based on the quoted
market price of these instruments. Total contracts outstanding at balance date were $3,007,266.
OFF BALANCE SHEET RISKS
Currency and interest rate swaps may be employed to convert foreign currency borrowing into New
Zealand dollar liabilities and to manage currency and interest rate exposure. In addition, foreign
currency forward exchange contracts and option agreements are used to manage other foreign
currency exposure. Fluctuations in foreign currency exchange rates and interest rates give rise
to market risk.
CONCENTRATION OF CREDIT RISK
Financial instruments which potentially subject the Group to concentrations of credit risk consist
principally of cash and debtors.
Concentrations of credit risk with respect to debtors are limited due to the large number of
customers included in the Group's customer base.
F-14
NOTES TO THE ACCOUNTS 14
22) EMPLOYEE SHARE OWNERSHIP PLAN
The company operates an Employee Share Ownership Plan (ESOP) under which current employees of the
Trigon Group are eligible. The ESOP consists of both custodial and beneficially held shares managed
by appointed Trustees under whose control voting rights are vested. Voting rights rank pari passu
with other shares. The directors of Trigon Industries Ltd have the power to appoint and/or remove
trustees. At June 1994 the ESOP held custodially 1,843,843 shares and beneficially 5,002 shares
fully paid at a total cost of $924,423.
1994
<S> <C>
Abbreviated Statement of Earnings $'000
Income
Dividends Received 55
Interest Received from Employees 92
Revenue from Share Transactions 694
Total Income 841
Expenses
Audit Fees 2
Interest Paid 57
Total Expenses 59
Net Income Before Tax 782
Taxation Expense 11
Net Income After Tax 771
Accumulated Funds Brought Forward 334
Transfer to Reserves (694)
Accumulated Funds Carried Forward 411
Abbreviated Balance Sheet
Assets
Shares in Trigon Industries Ltd 19
Advances to Executives 881
Advance to Trigon Industries Ltd 1,266
Total Assets 2,166
Liabilities
Accruals 2
Provision for Taxation 7
Provision for Diminution in Value of Shares 447
Total Liabilities 456
Equity Funds
Accumulated Funds 411
General Reserve 1,299
Total Equity Funds 1,710
Total Equity Funds and Liabilities 2,166
F-15
NOTES TO THE ACCOUNTS 15
23) SIGNIFICANT EVENTS AFTER BALANCE DATE
On 29 November 1994 a letter of intent was signed with Sealed Air Corporation ("SAC"), a company
incorporated in the United States of America, whereby SAC will acquire 100% of the shares of Trigon
Industries Limited. It is proposed that the sale and purchase agreement will be signed on January 10,
1995. The directors do not currently envisage any event occurring that will prevent the acquisition
proceeding as scheduled.
On the date of and in relation to the acquisition certain employees of Trigon Industries Limited will
be entitled to compensation for loss of office.
The consummation of the acquisition will result in the net assets of Trigon Industries Limited
exceeding those at 30 June 1994.
24) SUMMARY OF SIGNIFICANT DIFFERENCES BETWEEN NEW ZEALAND GENERALLY
ACCEPTED ACCOUNTING PRINCIPLES AND UNITED STATES GENERALLY ACCEPTED
ACCOUNTING PRINCIPLES
The consolidated financial statements are prepared in accordance with accounting principles generally
accepted in New Zealand ("NZ GAAP"), which differs in certain significant respects from generally
accepted accounting principles in the United States("US GAAP"). The significant differences are detailed
below.
(a) Revaluations
Under NZ GAAP, certain properties and plant have been revalued. Resulting changes in values are
included, as Shareholders' equity, in the Asset Revaluation Reserve. US GAAP would not allow
revaluation of these assets. Depreciation has been calculated for accounting purposes on the full
revalued amount.
(b) Declared Dividends
NZ GAAP requires dividends declared by the Board of Directors after the end of an accounting period,
but in respect of that accounting period, to be deducted from Retained Earnings at the end of the
accounting period. Under US GAAP, such dividends are provided in the period in which they are
proposed by the Board of Directors.
(c) Statement of Cashflows
Under NZ GAAP, bank overdrafts are included within cash on hand. US GAAP requires bank overdrafts
to be classified as a financing activity.
(d) Foreign Exchange
Under NZ GAAP, the financial statements of foreign subsidiaries, which are denominated in a foreign
currency are translated into NZ dollars at the exchange rate ruling at balance sheet date. Under US
GAAP, the earnings statement of such financial statements would be translated at an average of the rates
that prevailed during the year.
F-16
NOTES TO THE ACCOUNTS 16
(e) Capitalisation of Interest Cost relating to the Construction of Property, Plant and Equipment
Under US GAAP, interest cost incurred in connection with the expenditures for the construction of fixed
assets is required to be capitalised during the period required to prepare the fixed asset for its intended
use. NZ GAAP allows capitalisation of interest for a similar period but does not require capitalisation to
occur.
(f) US GAAP and Securities Exchange Commission (SEC) Disclosures
The financial statements have been prepared under NZ GAAP. However, if the financial statements
had been prepared to comply with US GAAP and SEC disclosure requirements, additional
financial statement disclosures would need to be made.
F-17
</TABLE>
<TABLE>
C O N S O L I D A T E D S T A T E M E N T O F C A S H F L O W S 17
<CAPTION>
For the Year Ended 30 June 1994 Notes 1994 1993
$000 $000
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Cash was Provided From:
Receipts from Customers 126,699 114,882
Cash was Applied To:
Payments to Suppliers 77,815 80,009
Payments to Employees 27,115 26,409
Taxation Paid 3,578 3,049
Interest Paid 3,581 2,606
112,089 112,073
NET CASH FLOWS FROM OPERATING ACTIVITIES 14,610 2,809
CASH FLOWS FROM INVESTING ACTIVITIES
Cash was Provided From:
Proceeds from Sale of Fixed Assets 125 779
Proceeds from Sale of Associate Company 0 528
Proceeds from Loans and Advances 0 3,793
125 5,100
Cash was Applied To:
Purchase of Fixed Assets 8,150 8,699
Repayment of Loans and Advances 1,188 0
9,338 8,699
NET CASH FLOWS FROM INVESTING ACTIVITIES (9,213) (3,599)
CASH FLOWS FROM FINANCING ACTIVITIES
Cash was Provided From:
Finance Leases 0 1,576
Sale of Shares 2,182 0
2,182 1,576
Cash was Applied To:
Finance Leases 3,945 0
Dividends Paid 1,850 1,550
5,795 1,550
NET CASH FLOWS FROM FINANCING ACTIVITIES (3,613) 26
NET INCREASE (DECREASE) IN CASH HELD 1,784 (764)
ADD OPENING CASH BROUGHT FOWARD (3,434) (2,670)
CLOSING CASH (1,650) (3,434)
This statement is to be read in conjunction with the Notes on Pages 3 to 16
F-18
</TABLE>
Auditor's Report
To the Shareholders of
Trigon Industries Limited
We have audited the financial statements on pages 1 to 17. The
financial statements provide information about the past financial
performance and financial position of the group as at 30 June 1994.
This information is stated in accordance with the accounting
policies set out on pages 3 to 4.
Directors' Responsibilities
The directors are responsible for the preparation of financial
statements which comply with generally accepted accounting practice
and give a true and fair view of the financial position of the
group as at 30 June 1994 and of the results of its operations and
cash flows for the year ended on that date.
Auditor's Responsibilities
It is our responsibility to express an independent opinion on the
financial statements presented by the directors and report our
opinion to you.
Basis of Opinion
An audit includes examining, on a test basis, evidence relevant to
the amounts and disclosures in the financial statements. It also
includes assessing:
- - - the significant estimates and judgments made by the directors
in the preparation of the financial statements; and
- - - whether the accounting policies are appropriate to the group
circumstances, consistently applied and adequately disclosed.
We conducted our audit in accordance with generally accepted
auditing standards in New Zealand. We planned and performed our
audit so as to obtain all the information and explanations which we
considered necessary in order to provide us with sufficient
evidence to give reasonable assurance that the financial statements
are free from material misstatements, whether caused by fraud or
error. In forming our opinion we also evaluated the overall
adequacy of the presentation of information in the financial
statements.
Our firm carries out other assignments for the group in the area of
taxation advice. The firm has no other relationship with, or
interest in, the company or any of its subsidiaries.
Unqualified Opinion
We have obtained all the information and explanations we have
required.
In our opinion:
- - - proper accounting records have been kept by the company as far
as appears from our examination of those records; and
- - - the financial statements on pages 1 to 17:
- - - comply with generally accepted accounting practice in New
Zealand; and
- - - give a true and fair view of the financial position of
the group as at 30 June 1994 and the results of its
operations and cash flows for the year ended on that date
so far as concerns members of the company.
Our audit was completed on 26 August 1994 (21 December 1994 as to
certain information in Notes 16, 23 and 24) and our unqualified
opinion is expressed as at that date.
c/Ernst & Young
Ernst & Young
Auckland, New Zealand
F-19
<TABLE>
<CAPTION>
Trigon Industries Limited
Consolidated Income Statement
For the quarters ended September 30, 1994 and 1993
(In thousands of New Zealand dollars)
(Prepared in accordance with New Zealand
generally accepted accounting principles)
(Unaudited)
September 30,
1994 1993
<S> <C> <C>
Sales $ 28,364 $ 28,435
Cost of sales 15,111 14,820
Gross profit 13,253 13,615
Other income 18 245
Total gross profit 13,271 13,860
Overheads:
Manufacturing 4,196 4,317
Depreciation 1,295 1,142
Warehouse & distribution 639 615
Selling & marketing 2,237 2,262
Administration 3,573 4,154
Finance costs 630 566
Total overheads 12,570 13,056
Net income before income taxes 701 804
Income taxes payable 266 494
Net income after income taxes 435 310
Less minority interests 23 18
Net income to Trigon Industries
on an equity basis 412 292
Retained earnings brought forward 18,511 14,361
Retained earnings carried forward $ 18,923 $ 14,653
See accompanying notes to unaudited interim consolidated financial information.
F-20
</TABLE>
<TABLE>
<CAPTION>
Trigon Industries Limited
Consolidated Balance Sheet
September 30, 1994
(In thousands of New Zealand dollars)
(Prepared in accordance with New Zealand
generally accepted accounting principles)
(Unaudited)
September 30, 1994
<S> <C>
Shareholders' funds
Share capital $ 5,000
Reserves 10,193
Retained earnings 18,923
Total shareholders funds 34,116
Minority interests 255
Shareholders equity 34,371
Liabilities
Accounts payable 13,813
Current portion term liabilities 1,874
Provision for tax 95
Provision for dividend 1,250
Total current liabilities 17,032
Provision for deferred tax 555
Term liabilities and provisions 27,236
Total liabilities 44,823
79,194
Assets
Cash 103
Accounts receivable 20,151
Inventories 15,177
Total current assets 35,431
Fixed assets, net 43,721
Investments 42
Total assets $ 79,194
See accompanying notes to unaudited interim consolidated financial information.
F-21
</TABLE>
Trigon Industries Limited
Notes to Unaudited Interim Consolidated Financial Information
For the Quarters Ended September 30, 1994 and 1993
(Prepared in accordance with New Zealand
generally accepted accounting principles)
(1) Presentation of Interim Financial Statements
The consolidated financial information presented as of
September 30, 1994 and for the quarters ended September 30, 1994
and 1993 has been prepared from the books and records of Trigon
Industries Limited without audit. The accounting policies used are
consistent with those used in the previous published annual
financial as at June 30, 1994 which were prepared in accordance
with New Zealand generally accepted accounting principles.
(2) Commitments and Contingencies
Commitments as of September 30, 1994 are not materially
different to those at June 30, 1994 other than a payment having
been made for plant and equipment totaling $740,000 (New Zealand).
No significant contingent liabilities exist at September 30,
1994.
F-22
<TABLE>
<CAPTION>
SEALED AIR CORPORATION AND SUBSIDIARIES
CONSOLIDATED CONDENSED STATEMENTS OF EARNINGS
For the years ended December 31, 1994 and 1993
(In thousands of U.S. dollars except share data)
(Unaudited)
1994 1993
<S> <C> <C>
Net sales $519,186 $451,694
Cost of sales 327,423 282,147
Gross profit 191,763 169,547
Marketing, administrative and development
expenses 107,854 95,434
Operating profit 83,909 74,113
Other income (expense):
Interest expense (19,363) (28,828)
Other, net (3,343) 176
(22,706) (28,652)
Earnings before taxes 61,203 45,461
Income taxes 23,987 19,547
Earnings before cumulative effect of
accounting change and early extinguishment
of subordinated notes 37,216 25,914
Cumulative effect of accounting change - 1,459
Early extinguishment of subordinated notes,
net of income taxes (5,576) -
Net earnings $ 31,640 $ 27,373
Earnings (loss) per share:
Before cumulative effect of accounting
change and early extinguishment of
subordinated notes $ 1.87 $ 1.32
Cumulative effect of accounting change - 0.08
Early extinguishment of subordinated notes (0.28) -
Net earnings $ 1.59 $ 1.40
Weighted average number of common
shares outstanding (000) 19,942 19,584
See accompanying notes to unaudited consolidated condensed financial information.
F-23
</TABLE>
<TABLE>
<CAPTION>
SEALED AIR CORPORATION AND SUBSIDIARIES
CONSOLIDATED CONDENSED BALANCE SHEETS
December 31, 1994 and 1993
(In thousands of U.S. dollars)
(Unaudited)
1994 1993
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 11,153 $ 19,392
Accounts receivable, less allowance
for doubtful accounts of $3,970 in
1994 and $2,675 in 1993 91,321 66,966
Inventories 38,259 32,035
Other current assets 11,098 9,768
Total current assets 151,831 128,161
Property and equipment, net 136,170 120,750
Intangible assets, net of accumulated
amortization 29,357 16,538
Other assets 13,759 14,369
Total assets $331,117 $279,818
Liabilities and shareholders' equity (deficit)
Current liabilities:
Notes payable and current installments
of long-term debt $ 30,508 $ 15,618
Accounts payable 43,009 22,908
Income taxes payable 16,577 11,040
Accrued interest and other current
liabilities 45,970 44,767
Total current liabilities 136,064 94,333
Long-term debt, less current installments 155,293 190,058
Deferred credits - income taxes and other
non-current liabilities 28,748 24,846
Total liabilities 320,105 309,237
Shareholders' equity (deficit):
Common stock 201 199
Additional paid-in capital 114,686 108,361
Retained earnings (deficit) (106,036) (137,676)
Accumulated translation adjustment 6,126 5,063
Deferred compensation and cost of
treasury stock (3,965) (5,366)
Total shareholders' equity (deficit) 11,012 (29,419)
Total liabilities and shareholders'
equity $331,117 $279,818
See accompanying notes to unaudited consolidated condensed financial information.
F-24
</TABLE>
SEALED AIR CORPORATION AND SUBSIDIARIES
Notes to Unaudited Consolidated Condensed Financial Information
December 31, 1994 and 1993
(1) Principles of Consolidation
The consolidated financial statements include the accounts of
Sealed Air Corporation and its subsidiaries (the "Company"). All
significant intercompany transactions and balances have been
eliminated in consolidation. In management's opinion, all
adjustments necessary for a fair presentation of the results of
operations for the year ended December 31, 1994 have been made.
For further financial information refer to the Company's Annual
Report on Form 10-K for the year ended December 31, 1993 and
Quarterly Reports filed on Form 10-Q for the fiscal quarters ended
March 31, June 30 and September 30, 1994.
(2) Early Redemption of Subordinated Notes
On June 8, 1994, the Company entered into a credit agreement with
Bankers Trust Company, as agent, and a syndicate of banks and
called for redemption all of its outstanding $170,000,000 12-5/8%
Senior Subordinated Notes (the "12-5/8% Notes") at a price of
104.734% of their aggregate principal amount together with accrued
interest to the date of redemption. The 12-5/8% Notes were
redeemed on July 8, 1994 from the proceeds of a $100 million term-
loan borrowing and $78 million of revolving credit borrowings under
such credit agreement. The early redemption of the 12-5/8% Notes
resulted in an after-tax charge to earnings of $5,576,000, or $.28
per share, in the second quarter of 1994, reflecting the 4.734%
call premium due on the redemption of the 12-5/8% Notes and the
write-off of the related unamortized deferred financing costs.
(3) Acquisitions
In May 1994, the Company acquired the outstanding capital stock of
Delsopak, S.A. of France and an exclusive license and option to
purchase certain patents. In July 1994, the Company acquired the
outstanding capital stock of Hereford Paper and Allied Products
Limited of England. In September 1994, the Company acquired the
outstanding capital stock of Emballasje-Teknikk A/S of Norway. In
December 1994, the Company acquired the outstanding capital stock
of SPIC Srl of Italy. These transactions, each of which was
effected in exchange for shares of the Company's common stock
and/or cash, were not material to the Company's consolidated
financial statements.
F-25
<TABLE>
<CAPTION>
SEALED AIR CORPORATION AND SUBSIDIARIES
Unaudited Pro Forma Condensed Consolidating Statement of Earnings
For the year ended December 31, 1994
(In thousands of U.S. dollars except per share data)
The following unaudited pro forma condensed consolidated statement of earnings has been prepared as if the acquisition of Trigon
Industries Limited, discussed in Note 1 of the notes to pro forma condensed consolidating financial information, had occurred on
January 1, 1994. This unaudited pro forma statement of earnings for the year ended December 31, 1994 combines the consolidated
statement of earnings of the Company for the year ended December 31, 1994 with the consolidated income statement of Trigon
Industries Limited for the twelve months ended September 30, 1994. The statement gives effect to adjustments necessary to account
for the acquisition as a purchase.
Trigon
Sealed Air Industries Adjustments
Corporation Limited(Note 4) (Note 3) Pro Forma
<S> <C> <C> <C> <C>
Net sales $519,186 $ 72,343 $ $591,529
397 (b)
Cost of sales 327,423 46,199 (515)(d) 373,504
Gross profit 191,763 26,144 118 218,025
Marketing, administrative and 4,243 (b)
development expenses 107,854 18,600 (3,040)(d) 127,657
Operating profit 83,909 7,544 (1,085) 90,368
Other income (expense):
Interest expense (19,363) (1,425) (1,333)(e) (22,121)
Other, net (3,343) 62 (3,281)
(22,706) (1,363) (1,333) (25,402)
Earnings before income taxes 61,203 6,181 (2,418) 64,966
Income taxes 23,987 2,048 (119)(f) 25,916
Earnings before extraordinary item $ 37,216 $ 4,133 $ (2,299) $ 39,050
Earnings per share before extra-
ordinary item $ 1.87 $ 1.88
Weighted average number of common
shares outstanding during the period
and as adjusted to give effect to the
issuance of shares for the acquisition
of Trigon Industries Limited (000) 19,942 883 20,825
See accompanying notes to unaudited pro forma condensed consolidating financial information. Letter references under
"Adjustments" refer to Note 3.
F-26
</TABLE>
<TABLE>
<CAPTION>
SEALED AIR CORPORATION AND SUBSIDIARIES
Unaudited Pro Forma Condensed Consolidating Balance Sheet
December 31, 1994
(In thousands of U.S. dollars)
The following unaudited pro forma condensed consolidated balance sheet has been prepared as if the acquisition of Trigon
Industries Limited, discussed in Note 1 of the notes to unaudited pro forma condensed consolidating financial information, had
occurred on December 31, 1994. This balance sheet combines the consolidated balance sheet of the Company at December 31, 1994
with the consolidated balance sheet of Trigon Industries Limited at September 30, 1994, giving effect to adjustments necessary to
account for the acquisition as a purchase.
Trigon
Sealed Air Industries Adjustments
Corporation Limited(Note 4) (Note 3) Pro Forma
<S> <C> <C> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 11,153 $ 62 $ $ 11,215
Accounts receivable, less allowance
for doubtful accounts 91,321 12,146 103,467
Inventories 38,259 9,147 47,406
Other current assets 11,098 0 11,098
Total current assets 151,831 21,355 0 173,186
Property and equipment at cost, net
of accumulated depreciation and
amortization 136,170 21,396 5,872 (a) 163,438
Intangible assets, net of accumu-
lated amortization 29,357 0 28,999 (a) 58,356
Other assets 13,759 25 12,798 (a) 26,582
$331,117 $ 42,776 $ 47,669 $421,562
F-27
(continued)
</TABLE>
<TABLE>
<CAPTION>
SEALED AIR CORPORATION AND SUBSIDIARIES
Unaudited Pro Forma Condensed Consolidating Balance Sheet (continued)
Trigon
Sealed Air Industries Adjustments
Corporation Limited(Note 4) (Note 3) Pro Forma
<S> <C> <C> <C> <C>
LIABILITIES AND SHAREHOLDERS'
EQUITY (DEFICIT)
Notes payable and current install-
ments of long-term debt $ 30,508 $ 1,127 $ 6,630 (c) $ 38,265
Accounts payable 43,009 8,325 51,334
Accrued interest and other accrued
liabilities 45,970 0 45,970
Income taxes payable 16,577 57 16,634
Total current liabilities 136,064 9,509 6,630 152,203
Long-term debt, less current
installments 155,293 16,415 25,496 (a) 197,204
Other non-current liabilities 28,748 720 154 (a) 29,622
Total liabilities 320,105 26,644 32,280 379,029
Shareholders' equity:
Common stock 201 3,014 (3,005)(a) 210
Additional paid-in capital 114,686 243 31,269 (a) 146,198
(6,630)(c)
Retained earnings (deficit) (106,036) 13,571 (6,941)(a) (106,036)
Accumulated translation adjustment 6,126 (850) 850 (a) 6,126
14,977 15,978 15,543 46,498
Less deferred compensation and cost
of common stock held as treasury
stock (3,965) 0 (3,965)
Minority interest 0 154 (154)(a) 0
Shareholders' equity 11,012 16,132 15,389 42,533
$331,117 $ 42,776 $ 47,669 $421,562
See accompanying notes to unaudited pro forma condensed consolidating financial information. Letter references under
"Adjustments" refer to Note 3.
F-28
</TABLE>
SEALED AIR CORPORATION AND SUBSIDIARIES
Notes to Unaudited Pro Forma Condensed Consolidating Financial
Information
December 31, 1994
Note 1 Acquisition
On January 10, 1995, Sealed Air Corporation (the "Company")
acquired all of the outstanding capital stock of Trigon Industries
Limited, a privately-owned, New Zealand corporation ("Trigon") in
exchange for 882,930 shares of the Company's common stock at a
price of approximately $35.70 per share and $25,496,000 in cash.
The cash portion of the purchase price was paid by borrowings by
the Company and certain of its subsidiaries under available lines
of credit, including primarily borrowings under the Company's
Credit Agreement dated June 8, 1994 with Bankers Trust Company, as
agent, and the financial institutions party thereto (the "1994
Credit Agreement").
Note 2 Basis of Presentation
The pro forma condensed consolidating statement of earnings
for the year ended December 31, 1994 combines the consolidated
statement of earnings of the Company for the year ended December
31, 1994 with the consolidated income statement of Trigon for the
year ended September 30, 1994. The pro forma condensed
consolidating balance sheet at December 31, 1994 combines the
consolidated balance sheet of the Company at December 31, 1994 with
the consolidated balance sheet of Trigon at September 30, 1994. The
Trigon consolidated income statement for the year ended September
30, 1994 and the consolidated Trigon balance sheet at September 30,
1994 have been prepared in accordance with United States generally
accepted accounting principles (see note 4).
Note 3 Pro Forma Adjustments
The pro forma financial information gives effect primarily
to:
(a) The preliminary allocation of the excess of the purchase
price of the acquisition of Trigon over the historical net assets
after payment of the pre-acquisition dividend to the Trigon
shareholders. This allocation is based upon the results of studies
which are in the process of being completed. The preliminary
allocation is as follows (in thousands of U.S. dollars):
Purchase price $57,017
Historical net assets after payment of
a pre-acquisition dividend to the
Trigon shareholders (see note (c)) 9,348
Excess of purchase price over historical
net assets acquired 47,669
Adjustments of historical costs to fair value:
Property and equipment 5,872
Non-compete agreements 12,798
Trademarks 6,079
Excess of cost over net assets acquired $22,920
F-29
SEALED AIR CORPORATION AND SUBSIDIARIES
Notes to Unaudited Pro Forma Condensed Consolidating
Financial Information (continued)
December 31, 1994
Note 3 Pro Forma Adjustments (continued)
(b) Amortization of the excess of cost over fair value of net
assets acquired to be amortized over its estimated life (20 years),
amortization of trademarks acquired to be amortized over their
estimated average useful lives (15 years), amortization of non-
compete agreements related to the acquisition to be amortized over
the lives of the agreements (5 years), and depreciation of property
and equipment reflecting acquisition value.
(C) Pre-acquisition dividend to Trigon shareholders.
(D) Specific cost reductions which management expects to realize
from the combined operations of the two companies.
(E) Interest expense from the borrowings by the Company and
certain of its subsidiaries, including borrowings under the 1994
Credit Agreement, used to finance the acquisition.
(F) Tax benefit of pro forma adjustments net of non-deductible
charges.
(continued)
F-30
<TABLE>
<CAPTION>
SEALED AIR CORPORATION AND SUBSIDIARIES
Notes to Unaudited Pro Forma Condensed Consolidating Financial Information (continued)
Note 4 New Zealand - United States Adjustments
The reconciliation of the condensed consolidated income statement of Trigon Industries Limited prepared in accordance with New
Zealand generally accepted accounting principles (NZ GAAP) to United States generally accepted accounting principles (US GAAP) is
as follows:
For the twelve months ended September 30, 1994
Trigon Industries Trigon Industries Trigon Industries
Limited Limited Limited
NZ GAAP Adjustments US GAAP US GAAP (vi)
(NZ $000) (NZ $000) (NZ $000) (US $000)
<S> <C> <C> <C> <C>
Net sales 124,117 1,156 (iii) 125,273 72,343
15,158 (i)
(659)(ii)
Cost of sales 64,816 685 (iii) 80,000 46,199
Gross profit 59,301 (14,028) 45,273 26,144
Overheads 49,644 (49,644)(i) 0 0
32,112 (i)
Marketing, administrative (229)(ii)
and development expenses 0 325 (iii) 32,208 18,600
Operating profit 9,657 3,408 13,065 7,544
Other income(expense) net:
(2,481)(i)
16 (ii)
Interest expense 0 (2)(iii) (2,467) (1,425)
Other, net 0 107 (i) 107 62
0 (2,360) (2,360) (1,363)
Earnings before interest
and taxes 9,657 1,048 10,705 6,181
Income taxes 3,498 49 (iii) 3,547 2,048
Net income 6,159 999 7,158 4,133
(continued)
F-31
</TABLE>
<TABLE>
<CAPTION>
SEALED AIR CORPORATION AND SUBSIDIARIES
Notes to Unaudited Pro Forma Condensed Consolidating Financial Information (continued)
Note 4 New Zealand - United States Adjustments (continued)
The reconciliation of the condensed consolidated balance sheet of Trigon Industries Limited prepared in accordance with New
Zealand generally accepted accounting principles (NZ GAAP) to United States generally accepted accounting principles (US GAAP) is
as follows:
As of September 30, 1994
Trigon Trigon Trigon
Industries Industries Industries
Limited Limited Limited
NZ GAAP Adjustments US GAAP US GAAP(vi)
(NZ $000) (NZ $000) (NZ $000) (US $000)
<S> <C> <C> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents 103 103 62
Accounts receivable, less
allowance for doubtful
accounts 20,151 20,151 12,146
Inventories 15,177 15,177 9,147
Total current assets 35,431 0 35,431 21,355
Property and equipment at cost,
net of accumulated depreciation
and amortization 43,721 (8,220)(iv) 35,501 21,396
Other assets 42 42 25
79,194 (8,220) 70,974 42,776
LIABILITIES AND SHAREHOLDERS'
EQUITY
Current liabilities:
Notes payable and current
installments of long-term debt 1,874 1,874 1,127
Accounts payable 13,813 13,813 8,325
Provision for dividend 1,250 (1,250)(v) 0 0
Income taxes payable 95 95 57
Total current liabilities 17,032 (1,250) 15,782 9,509
Long-term debt, less current
installments 27,236 27,236 16,415
Other non-current liabilities 555 638 (v) 1,193 720
Total liabilities 44,823 (612) 44,211 26,644
Shareholders' equity
Common stock 5,000 5,000 3,014
Additional paid-in capital 0 402 (v) 402 243
(10,878)(iv)
Reserves 10,193 685 (v) 0 0
2,658 (iv)
Retained earnings 18,923 936 (v) 22,517 13,571
Accumulated translation adjustment 0 (1,411)(v) (1,411) (850)
34,116 (7,608) 26,508 15,978
Minority interest 255 255 154
Shareholders' equity 34,371 (7,608) 26,763 16,132
79,194 (8,220) 70,974 42,776
(continued)
F-32
</TABLE>
SEALED AIR CORPORATION AND SUBSIDIARIES
Notes to Unaudited Pro Forma Condensed Consolidating Financial
Information (continued)
Note 4 New Zealand - United States Adjustments (continued)
(i) Reclassification of income and expense items to conform to US
GAAP.
(ii) Adjustment of depreciation expense related to the revaluation
of property and equipment, and adjustment of depreciation expense
on capitalized interest related to constructed equipment.
(iii) Adjustment to give effect to the translation of the
operations of Trigon's foreign subsidiaries using a weighted
average exchange rate for the period. Under NZ GAAP, such
operations were translated using the closing foreign exchange rate
at the end of the period.
(iv) Adjustment of cost and accumulated depreciation, net, to
historical cost (under NZ GAAP property and equipment has been
periodically revalued to approximate fair value) and
capitalize interest related to constructed equipment, net of
related accumulated depreciation.
(v) Reclassification of asset, liability and shareholders' equity
items to conform to US GAAP, principally for provision for dividend
and deferred revenue.
(Vi) In accordance with Financial Accounting Standards Board
Statement No. 52, all balance sheet accounts are translated at the
September 30, 1994 exchange rate, and income statement items are
translated at a weighted average of month-end exchange rates during
the twelve months ended September 30, 1994.
F-33
EXHIBIT 2
TRIGON INDUSTRIES LIMITED
SHARE PURCHASE AGREEMENT
AGREEMENT dated as of 10 January, 1995, among SEALED
AIR HOLDINGS (NZ) LIMITED, a New Zealand corporation
("Holdings"), TRIGON INDUSTRIES LIMITED, a New Zealand
corporation (the "Company"), JAMES WILLIAM FERGUSON FOREMAN and
DIANE SHIRLEY FOREMAN (each a "Selling Shareholder" and together
the "Selling Shareholders"), and SEALED AIR CORPORATION, a
Delaware corporation ("Sealed Air").
WITNESSETH:
WHEREAS, the Company has an issued and paid up capital
of 6,945,282 A ordinary shares (the "A Shares"), 1,272,918 B
ordinary shares (the "B Shares"), and 1,781,800 C preference
shares (the "C Shares"), each with a nominal value of $0.50 (NZ),
the A Shares, the B Shares and the C Shares being herein
collectively referred to as "Company Capital Stock");
WHEREAS, the Selling Shareholders own, or will at the
time of the Closing (as defined in Section 2(a)) own, all of the
issued and outstanding shares of Company Capital Stock (the
"Outstanding Company Shares"); and
WHEREAS, Holdings desires to purchase the Outstanding
Company Shares from the Selling Shareholders, and the Selling
Shareholders desire to sell the Outstanding Company Shares to
Holdings;
NOW, THEREFORE, in consideration of the mutual
covenants herein contained and other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Purchase and Sale of Company Capital Stock.
(a) Purchase Price. Subject to the terms and
conditions contained in this Agreement, on the Closing Date (as
hereinafter defined), Holdings shall purchase from the Selling
Shareholders, and the Selling Shareholders shall sell to
Holdings, the Outstanding Company Shares for a consideration of
$68,888,000 (NZ) (the "Purchase Price"), amounting to a price of
$6.8888(NZ) per share (the "Price Per Share") for each
outstanding A Share, B Share and C Share.
(b) Payment of the Purchase Price. Holdings shall
satisfy the Purchase Price by delivering to the Selling
Shareholders or to a trust to be formed by them under the laws of
New Zealand for the purpose of holding the Sealed Air Shares, the
sole trustees of which shall be citizens and residents of New
Zealand (the "Sealed Air Share Trust") or to a New Zealand
registered and resident company, Griton Holdings Limited
("Griton"), or The New Zealand Guardian Trust Company Limited in
its capacity as escrow agent pursuant to Section 2(b)(iii)
("Escrow Agent") (i) a number of whole shares (each a "Sealed Air
Share") of Sealed Air's Common Stock, par value $0.01 (U.S.) per
share ("Sealed Air Common Stock"), having an aggregate value
determined pursuant to Section 1(c) of up to $49,888,000 (NZ) and
(ii) cash for the balance of the Purchase Price. The portion of
the Purchase Price to be paid in Sealed Air Shares shall be
reduced by the product of (x) the portion of the Price Per Share
to be paid in Sealed Air Shares and (y) the number of Outstanding
Company Shares beneficially owned by citizens or residents of the
United States or the United Kingdom for the benefit of whom an
offer not involving Sealed Air Shares is made pursuant to Section
3(c)(viii) by the Selling Shareholders, and such amount of the
Purchase Price shall be paid in cash.
(c) Determination and Allocation of Sealed Air Shares.
(i) The aggregate number of whole Sealed Air
Shares to be delivered in exchange for the portion of
the Purchase Price to be paid in Sealed Air Shares
shall be determined by (x) multiplying the portion of
the Purchase Price to be paid in Sealed Air Shares by
the Exchange Rate (as hereinafter defined) and (y)
dividing such product by the Average Closing Market
Price (as hereinafter defined) and rounding the
quotient to the nearest whole share. The term "Average
Closing Market Price" shall mean the average of the
closing market prices for Sealed Air Common Stock as
reported in the Eastern Edition of The Wall Street
Journal for each of the five days on which such shares
are traded on the New York Stock Exchange ("Trading
Days") immediately preceding the date which is seven
Trading Days before the Closing Date, on which date
such price shall be determined. The term "Exchange
Rate" shall mean the spot rate U.S. Dollar equivalent
of the New Zealand Dollar as reported in the Eastern
Edition of The Wall Street Journal at the close of
business on the date on which the Average Closing
Market Price is determined.
(ii) The number of whole Sealed Air Shares to be
delivered to each Selling Shareholder shall be
determined by multiplying the aggregate number of
Sealed Air Shares determined pursuant to clause (i)
above by a fraction, the numerator of which shall be
the number of Outstanding Company Shares held of record
by such Selling Shareholder and the denominator of
which will be the aggregate number of Outstanding
Company Shares.
(d) Fractional Shares. No fractional Sealed Air
Shares shall be issued or delivered to any Selling Shareholder or
to the Sealed Air Share Trust or Griton or the Escrow Agent. If
a fractional share of Sealed Air Common Stock would be issuable
to any Selling Shareholder or the Sealed Air Share Trust or
Griton or the Escrow Agent, such Selling Shareholder or the
Sealed Air Share Trust or Griton or the Escrow Agent as the case
may be shall be entitled to receive in lieu thereof, an amount of
cash determined by multiplying the Average Closing Market Price
(expressed in New Zealand Dollars calculated in accordance with
the Exchange Rate) by the fraction of a share of Sealed Air
Common Stock to which such person would otherwise have been
entitled.
(e) Certain Agreements Relating to the Resale of
Sealed Air Shares.
(i) Within thirty (30) days after the effective date
of the Registration Statement (as defined in Section 8(b)),
the Selling Shareholders shall cause Sealed Air and Holdings
to be notified of the number of Sealed Air Shares that are
desired to be sold with the benefit of this Section 1(e),
which shall in any event include all the Sealed Air Shares
to be delivered to The New Zealand Guardian Trust Company
Limited as escrow agent in accordance with Section
2(b)(iii), and shall cause such Sealed Air Shares to be
deposited with a brokerage firm or other financial
institution of international standing reasonably acceptable
to Sealed Air.
(ii) Such brokerage firm of other financial institution
shall be directed to sell the Sealed Air Shares deposited
with it on an orderly basis within 90 days after the date on
which such Sealed Air Shares are deposited in accordance
with the plan of distribution set forth in the Registration
Statement as referred to in Section 8(b) and to hold the net
proceeds of such sales, and the Selling Shareholders shall
cause such brokerage firm or other financial institution to
deliver to each of them and to Sealed Air a copy of each
confirmation of the sale of such Sealed Air Shares.
(iii) At the end of such ninety (90) day period or on
such other date as Sealed Air and the Selling Shareholders
shall mutually agree, after all of such Sealed Air Shares
shall have been sold, the aggregate net proceeds of the sale
of such shares, as reflected in such confirmations, shall be
computed and shall be converted into New Zealand Dollars at
the spot rate New Zealand Dollar equivalent of the U.S.
Dollar as reported in the Eastern Edition of The Wall Street
Journal at the close of business on the last business day
immediately prior to the date on which such computation is
made. If the net proceeds in New Zealand Dollars of the
sale of such shares divided by the number of shares sold
exceeds the Average Closing Market Price (expressed in New
Zealand Dollars, calculated in accordance with the Exchange
Rate), then the Selling Stockholders shall cause such
brokerage firm or other financial institution to pay such
excess amount to Holdings. If the net proceeds in New
Zealand Dollars of the sale of such shares divided by the
number of shares sold is less than the Average Closing
Market Price (expressed in New Zealand Dollars calculated in
accordance with the Exchange Rate), Holdings shall promptly
after the calculation of the amount of such shortfall pay
the amount of such shortfall to the Selling Shareholders or
to the Sealed Air Share Trust or Griton or the Escrow Agent
in New Zealand Dollars, such that the total amount received
by them in New Zealand Dollars in respect of the sale of
such shares shall equal the number of Sealed Air Shares sold
multiplied by the Average Closing Market Price (expressed in
New Zealand Dollars, calculated in accordance with the
Exchange Rate).
(iv) The Selling Shareholders shall cause Sealed Air
and Holdings to be advised from time to time of the number
of Sealed Air Shares covered by the Registration Statement
that have been sold or otherwise disposed of pursuant to
this subsection (e). If at the end of such ninety (90) day
period any of such Sealed Air Shares shall not have been
sold solely as a result of adverse market conditions and not
as a result of any decision to delay such sale beyond such
90th day, the ninety (90) day period shall be extended for
such period of time as shall be reasonably necessary to
provide for an orderly disposition of such Sealed Air
Shares.
2. Closing.
(a) Time and Place of Closing. The Closing under this
Agreement (the "Closing") shall take place, unless Sealed Air and
the Selling Shareholders agree upon another date or place, at the
offices of Bell Gully Buddle Weir, 17th Floor, The Auckland Club
Tower, 34 Shortland Street, Auckland 1, New Zealand, at 10:00
A.M., local time, on a date (the "Closing Date") to be mutually
agreed upon by Sealed Air and the Selling Shareholders as
promptly as practicable after the conditions set forth in Section
3 shall have been satisfied, which date shall, unless otherwise
agreed, be not later than 31 March, 1995. In the event that no
Closing is held on or before such date, other than by reason of
default of any of the parties this Agreement shall become void
and of no effect with no liability on the part of any party
hereto except that the provisions of Sections 9(a) and 9(c) shall
survive any such termination. Sealed Air, Holdings, the Company
and the Selling Shareholders shall each use their reasonable
commercial efforts to cause the conditions set forth in Section 3
to be satisfied as promptly as practicable after the execution of
this Agreement and in any event prior to the Closing.
(b) Exchange of Stock Certificates; Method of Payment.
At the Closing, subject to the satisfaction or waiver on or
before the Closing Date of the conditions set forth in Section 3:
(i) the Selling Shareholders shall cause to be
delivered to Holdings certificates representing all of
the outstanding A Shares, B Shares and C Shares
together with duly executed share transfers and
evidence, in form and substance satisfactory to Sealed
Air and Holdings, of the passing of an appropriate
resolution of the directors of the Company approving
the share transfers and authorizing the issuance of new
share certificates covering the Outstanding Company
Shares to Holdings; and
(ii) subject to Section 2(b)(iii), Holdings shall
deliver to each Selling Shareholder (A) a certificate,
registered in the name of such Selling Shareholder, for
the number of whole Sealed Air Shares to be issued to
such Selling Shareholder, which certificate shall bear
the legend provided for in Section 8(a)(vi), (B)
payment of cleared funds to an account nominated by
such Selling Shareholder for the balance of the
Purchase Price for the shares of Company Capital Stock
owned by such Selling Shareholder as provided in
Section 1 of this Agreement, (C) evidence of the
passing of all resolutions of the directors of Sealed
Air necessary in order for the Sealed Air Shares to be
issued, and (D) a legal opinion from Sealed Air's
counsel to the effect that the Sealed Air Shares have
been validly issued and are non-assessable.
Notwithstanding the foregoing, the Selling Shareholders
may direct Holdings to deliver a certificate in respect
of the Sealed Air Shares to be issued to the Selling
Shareholders registered in the name of Sealed Air Share
Trust or Griton, subject to the trustees of the Sealed
Air Share Trust or Griton (as the case may require)
having executed a deed of covenant in favour of
Holdings and Sealed Air in a form reasonably acceptable
to Sealed Air agreeing to be bound by all the
declarations and obligations of the Selling
Shareholders under this Agreement which relate to
receipt of the Sealed Air Shares, including without
limitation the acknowledgement set forth in Section
8(a). Delivery of such certificates to the Sealed Air
Share Trust or Griton in accordance with this clause
(ii) shall constitute full and complete discharge of
the obligation of Holdings to deliver to the Selling
Shareholders the Sealed Air Shares in respect of which
such certificate is issued.
(iii) the following shall be delivered to The New
Zealand Guardian Trust Company Limited, as stakeholder,
to be held in accordance with the terms of the escrow
agreement substantially in the form attached hereto as
Exhibit H (X) a portion of the cash amount to be paid
to the Selling Shareholders in part satisfaction of the
Purchase Price which equals the sum of NZ$5,000,000
multiplied by the proportion which the number of
Outstanding Company Shares beneficially owned by
citizens or residents of the United States or the
United Kingdom for the benefit of whom an offer not
involving Sealed Air Shares is made pursuant to Section
3(c)(viii) by the Selling Shareholders bears to the
total number of Outstanding Company Shares, and (Y) a
certificate in respect of such number of the whole
Sealed Air Shares to be issued to the Selling
Shareholders in part satisfaction of the Purchase Price
as when multiplied by the Average Closing Market Price
(expressed in New Zealand dollars, calculated in
accordance with the Exchange Rate) equals the sum of
NZ$5,000,000 less the amount referred to in paragraph
(X) of this Section 2(b)(iii). Delivery of such cash
and such certificate to The New Zealand Guardian Trust
Company Limited shall constitute full and complete
discharge of the obligation of Holdings to deliver to
the Selling Shareholders such cash and the Sealed Air
Shares to which such certificate relates.
(c) Delivery Constitutes Affirmation. The delivery to
Holdings pursuant to Section 2(b)(i) of such certificates for the
Outstanding Company Shares shall constitute an affirmation by
each Selling Shareholder that (i) the representations and
warranties of such Selling Shareholder contained in this
Agreement remain true and accurate on the Closing Date with the
same force and effect as if made on such date (except as affected
by the transactions contemplated by this Agreement and except to
the extent that any such representations and warranties have been
made as of a specified date, in which case such delivery shall
constitute an affirmation that such representations and
warranties were true on such date) and (ii) such Selling
Shareholder has duly performed or caused to be performed all
covenants, conditions and obligations to be performed or
satisfied under this Agreement by such Selling Shareholder on or
before the Closing Date.
3. Conditions to the Closing.
(a) Conditions to Sealed Air's and Holdings'
Obligations. The obligations of Sealed Air and Holdings to
effect the Closing are subject to the satisfaction, on or before
the Closing Date, of the following conditions (any of which may
be waived in whole or in part by Sealed Air and Holdings in their
sole discretion):
(i) Declaration of Dividend. The Company shall
have declared and paid a cash dividend of up to $1.10
(NZ) for each A Share, B Share and C Share.
(ii) Intellectual Property Assignment Agreement.
The Intellectual Property Assignment Agreement
substantially in the form attached hereto as Exhibit B
(the "Intellectual Property Assignment Agreement")
shall have been duly executed and delivered by the
Company, shall constitute the Company's valid and
legally binding obligation enforceable against the
Company in accordance with its terms, and the
transactions contemplated thereby shall have been
consummated.
(iii) U.S. Share Purchase Agreement. The Trigon
Packaging Corporation Share Purchase Agreement
substantially in the form attached hereto as Exhibit C
(the "U.S. Share Purchase Agreement") shall have been
duly executed and delivered by the Company, shall
constitute the Company's valid and legally binding
obligation enforceable against the Company in
accordance with its terms, and the transactions
contemplated thereby shall have been consummated.
(iv) U.K. Share Purchase Agreement. The Trigon
Packaging Systems (Europe) Limited Share Purchase
Agreement substantially in the form attached hereto as
Exhibit D (the "U.K. Share Purchase Agreement") shall
have been duly executed and delivered by the Company,
shall constitute the Company's valid and legally
binding obligation enforceable against the Company in
accordance with its terms, and the transactions
contemplated thereby shall have been consummated.
(v) Non-Competition Agreements. Non-Competition
Agreements substantially in the forms attached hereto
as Exhibit E-1 and Exhibit E-2 (collectively, the "Non-
Competition Agreements") shall have been duly executed
and delivered by each Selling Shareholder and shall
constitute their valid and legally binding obligations
enforceable against them in accordance with their
respective terms.
(vi) Consulting Agreement. A Consulting
Agreement substantially in the form attached hereto as
Exhibit F (the "Consulting Agreement") shall have been
duly executed and delivered by Emerald Group Limited
and shall constitute its valid and legally binding
obligations enforceable against it in accordance with
its terms.
(vii) Due Diligence. Sealed Air and Holdings
shall have completed a due diligence review of the
Company and its Subsidiaries including without
limitation a financial review by KPMG Peat Marwick of
their financial condition and tax situation and
environmental reviews of the facilities and operations
of the Company and its Subsidiaries, which reviews and
audits shall not have disclosed any matter not
previously disclosed to Sealed Air and Holdings by the
Company or the Selling Shareholders and accepted by
Sealed Air which may reasonably be considered to have a
material adverse effect on the business, properties or
condition, financial or otherwise, of the Company and
its Subsidiaries taken as a whole.
(viii) Advances and Loans. No advances or loans
by the Company or any Subsidiary to any Selling
Shareholder or to any person who but for the
transactions contemplated by Section 3(c)(viii) would
have been a shareholder of the Company shall be
outstanding.
(ix) Accuracy of Representations and Warranties.
The representations and warranties of the Selling
Shareholders and the Company contained in this
Agreement, the Ancillary Agreements (as defined below)
and the Related Agreements (as defined below) 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, the Ancillary
Agreements and the Related Agreements 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). As used
in this Agreement, the term "Ancillary Agreements"
shall mean the Non-Competition Agreements and the
Consulting Agreements, collectively, and the term
"Related Agreements" shall mean the Intellectual
Property Assignment Agreement, the U.S. Share Purchase
Agreement and the U.K. Share Purchase Agreement,
collectively. No claim may be made against the Selling
Shareholders by Sealed Air and Holdings pursuant to
Section 6 of this Agreement in respect of any matter
which Sealed Air and Holdings were aware prior to
Closing and which would have entitled Sealed Air and
Holdings to refuse to perform their obligation to
effect Closing in accordance with this clause (ix)
where Sealed Air and Holdings elected not to exercise
such right to refuse to perform such obligation.
(x) Performance of Agreements. The Selling
Shareholders and the Company shall have duly performed,
on or before the Closing Date, all covenants and
obligations to be performed by them under this
Agreement and the Related Agreements.
(xi) Resignation of Directors of the Company and
its Subsidiaries. Sealed Air and Holdings shall have
received, in writing, the resignations dated the
Closing Date of such of the directors of the Company
and its Subsidiaries as Sealed Air shall have
requested.
(xii) Opinions of Counsel. Sealed Air and
Holdings shall have received from Bell Gully Buddle
Weir, solicitors for the Company and the Selling
Shareholders, a written opinion dated the Closing Date,
in the form set forth in Exhibit G, and opinions of
United States and United Kingdom counsel to
substantially the same effect.
(xiii) Accounting Matters. Sealed Air shall have
received from Ernst & Young the following documents:
(v) A letter, dated the Closing Date, in
form and substance satisfactory to Sealed Air and
its counsel to the effect that in the opinion of
the firm, as independent certified public
accountants with respect to the Company and its
Subsidiaries, the audited consolidated financial
statements of the Company examined by such firm
and required to be included by Sealed Air in a
Current Report on Form 8-K pursuant to the United
States Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder
with respect to the transactions contemplated by
this Agreement (the "Form 8-K") comply as to form
in all material respects (except for the absence
of supporting schedules required by Regulation S-
X) with the applicable accounting requirements
under the Securities Act and the applicable rules
and regulations thereunder including without
limitation Regulation S-X or, if so requested by
Sealed Air, the rules and regulations thereunder
applicable to the financial statements of foreign
businesses required by proposed Regulation 210-
05(c) of Regulation S-X;
(w) An independent accountant's review
report in the form specified by U.S. Statement of
Accounting Standards No. 71 or such other form as
shall be approved by Sealed Air; and
(x) A manually signed accountants' report
complying with Rule 2-02 of Regulation S-X for
each audited financial statement required to be
included by Sealed Air in the Form 8-K.
(y) A manually signed consent of Ernst &
Young to the incorporation by reference of the
foregoing financial statements in each currently
effective registration statement of Sealed Air.
(z) An undertaking by Ernst & Young to
furnish to Sealed Air such additional manually
signed consents and manually signed accountants'
reports with respect to such financial statements
as may on or after the Closing Date be requested
by Sealed Air.
(xiv) Transfer of Shares. The Selling
Shareholders shall have procured the transfer of all
shares in each of the Subsidiaries of the Company not
held by the Company or any of its Subsidiaries at the
date of this Agreement to a nominee of Sealed Air.
(xv) No Material Damage. Neither the Company nor
any Subsidiary shall have suffered any damage,
destruction or loss (whether or not covered by
insurance) which materially or adversely affects or
could materially or adversely affect its condition
(financial or otherwise), properties, assets, business
or operations, or the prospects of the Company and its
Subsidiaries taken as a whole.
(b) Conditions to the Selling Shareholders'
Obligations. The obligations of the Selling Shareholders to
effect the Closing are subject to the satisfaction, on or before
the Closing Date, of the following conditions (any of which may
be waived in whole or in part by the Selling Shareholders):
(i) Consummation of the Related Agreements.
Sealed Air and its Affiliates shall have consummated
the transactions contemplated by the Related
Agreements.
(ii) Performance of Agreements. Sealed Air and
Holdings shall have duly performed all covenants and
obligations to be performed by them under this
Agreement on or before the Closing Date.
(iii) Security. Sealed Air shall have provided
to the Selling Shareholders such security as Sealed Air
and the Selling Shareholders shall have agreed against
the obligations of Holdings under sections 1(e)(iii)
and 8(f).
(c) Other Conditions to the Closing. The obligations
of the parties to consummate the Closing shall be subject to the
satisfaction, on or before the Closing Date, of the following
conditions (any of which may be waived in whole or in part with
the mutual consent of the parties):
(i) Corporate Approvals. Sealed Air's and
Holdings' Boards of Directors shall have approved the
transactions contemplated by this Agreement, and the
Company shall have obtained all corporate approvals
necessary to consummate the transactions contemplated
by this Agreement, the Ancillary Agreements and the
Related Agreements.
(ii) Consents of Third Parties. Each of the
parties shall have obtained such consents from third
parties as shall be required in order to permit them to
perform their obligations under this Agreement, the
Ancillary Agreements and the Related Agreements.
(iii) Listing of Sealed Air Shares. The Sealed Air
Shares shall have been authorized for listing on the
New York Stock Exchange upon official notice of
issuance.
(iv) Permits and Approvals. All permits and
approvals from any governmental body, governmental
agency or regulatory authority required, for the lawful
consummation of the transactions contemplated by this
Agreement, including without limitation the approval of
the New Zealand Overseas Investment Commission, shall
have been obtained and shall remain in full force and
effect, and any applicable waiting periods under the
U.S. Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended, shall have expired.
(v) Litigation, Etc. No legal proceeding shall
be pending or overtly threatened, or any basis for such
a proceeding asserted, before a court or by any
governmental body, governmental agency or regulatory
authority of any jurisdiction or before any arbitrator
or any other person directed against the consummation
of any of the transactions contemplated by this
Agreement which, in the reasonable opinion of Sealed
Air and the Selling Shareholders, makes it
impracticable or inadvisable to proceed with the
transactions contemplated by this Agreement, the
Ancillary Agreements and the Related Agreements.
(vi) Consents of Contracting Parties.
Undertakings shall have been obtained from all persons
who are parties to any contract, commitment or
arrangement with the Company or any of its Subsidiaries
which is material to the business of the Company and
its Subsidiaries taken as a whole, and who would have
the right to cancel, terminate earlier than would
otherwise have been the case or adversely modify such
contract, commitment or arrangement as a result of any
of the transactions contemplated by this agreement,
that they will not exercise such right.
(vii) FATA Approval. The consent of the Treasurer
under the Foreign Acquisitions and Takeovers Act 1975
(Commonwealth) (Australia) ("FATA") to the proposed
acquisition by Holdings of the Outstanding Company
Shares shall have been obtained. The Treasurer is to
be deemed to have so consented: (y) if Holdings
receives written notice from the Treasurer or on his
behalf, to the effect that the acquisition of the
Outstanding Company Shares is not objected to under the
FATA (such notice being free of any conditions); or (z)
if ten days have elapsed from the day the Treasurer
ceased to be empowered to make any order under Part II
of the FATA in relation to the proposed acquisition
because of lapse of time, notice of the proposed
acquisition of the Outstanding Company Shares having
been given to the Treasurer under the FATA.
(viii) Takeover Offer. The Selling Shareholders
shall have acquired pursuant to an offer made in
compliance with the Companies Amendment Act 1963 and
any other applicable securities or other laws of any
relevant jurisdiction, all shares of Company Capital
Stock not previously owned by them.
4. Representations, Warranties and Covenants of the
Selling Shareholders.
Each Selling Shareholder represents and warrants to and
covenants with Sealed Air and Holdings as follows:
(a) Legal Authority. Such Selling Shareholder has, or
will on the Closing Date have, full power, authority, and legal
right to sell, assign and transfer the Outstanding Company Shares
owned by such Selling Shareholder and to enter into this
Agreement and to perform such Selling Shareholder's obligations
hereunder. The execution, delivery and performance by the
Company of this Agreement and the Related Agreements have been
duly authorised by all requisite corporate action.
(b) Ownership and Title. The Selling Shareholders
are, or on the Closing Date will be, the sole record owners of
all of the outstanding shares of Company Capital Stock free and
clear of all restrictions on transfer, liens, claims, equities,
security interests and encumbrances of any kind or nature
whatsoever, (collectively "Encumbrances") and delivery of such
shares by such Selling Shareholder to Holdings on the Closing
Date as contemplated in Section 2(b)(i) will transfer to Holdings
good and marketable title thereto free and clear of all
Encumbrances.
(c) Enforceability. This Agreement is, and such
Selling Shareholder's Ancillary Agreements upon their execution
and delivery by such Selling Shareholder will be, such Selling
Shareholder's legal, valid and binding obligations, enforceable
against such Selling Shareholder in accordance with their terms.
(d) Non-Contravention. The execution, delivery and
performance of this Agreement and the Ancillary Agreements by
such Selling Shareholder, and the execution, delivery and
performance of this Agreement and the Related Agreements, by the
Company and its Subsidiaries (as defined in Section 5(e)), as the
case may be, will not (with or without notice or lapse of time or
both) conflict with, result in any breach of, or constitute a
default under or cause the acceleration of, give rise to or
create any right of termination, permit the imposition of any
tax, result in the reassessment of any property or require any
consent, approval or other action of any third party, court or
governmental authority pursuant to any provision of any charter,
bylaw, resolution, mortgage, indenture, or other agreement or
instrument, lien, license, permit, judgment, decree, statute,
ordinance, rule, regulation, proceeding or order or any other
restriction of any kind or character to which such Selling
Shareholder, the Company or such subsidiary or their respective
properties is a party or by which such Selling Shareholder is
bound or affected, the effect of which is material (having regard
to the transaction contemplated by this Agreement or such Related
Agreement as the case may be).
5. Additional Representations, Warranties and
Covenants of the Selling Shareholders.
The Selling Shareholders represent and warrant to and
covenant with Sealed Air and Holdings as follows:
(a) Organization, Standing, Etc. The Company and each
of its Subsidiaries is a duly organized and validly existing
corporation in good standing under the laws of its jurisdiction
of incorporation and, to the best of the knowledge of the Selling
Shareholders 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. To the best knowledge of the
Company and the Selling Shareholders, neither the Company nor any
Subsidiary is required to be qualified as a foreign corporation
in any jurisdiction, and neither the Company nor any Subsidiary
owns, leases nor operates property (real or personal) in any
other jurisdiction in which the failure to so qualify could have
any material adverse effect on the business, properties or
condition, financial or otherwise, of the Company and its
Subsidiaries taken as a whole.
(b) Capitalization. The Company has an issued and
paid-up capitalization of 6,945,282 A Shares, 1,272,918 B Shares
and 1,781,800 C Shares, each with a nominal value of $0.50 (NZ).
The outstanding shares of Company Capital Stock are fully paid,
and no other payments are due or payable to the Company or any
other person on or in respect of such shares.
(c) Charter Documents and Bylaws. The Company has
delivered to Sealed Air and Holdings a true, correct and complete
copy of the charter or other constituent documents (including all
amendments thereto) of the Company and each of its Subsidiaries.
No action or proceeding is pending or contemplated for the
amendment of the charter documents or other constituent documents
of the Company or any of its Subsidiaries or, to the best of the
knowledge of the Selling Shareholders, for the dissolution or
liquidation of the Company or any of its Subsidiaries.
(d) Outstanding Options, Warrants or Other Rights.
Neither the Company nor any Subsidiary has outstanding any
option, warrant or other right permitting or requiring it or
others to issue, purchase or convert any obligation into shares
of Company Capital Stock, the capital stock of such Subsidiary
nor any other security and has not agreed to issue or sell any
shares of Company Capital Stock, capital stock of such Subsidiary
or any other security. Each of the Selling Shareholders hereby
unconditionally and irrevocably waives all rights of pre-emption
or similar rights over any of the Outstanding Company Shares
conferred on such Selling Shareholder by the Articles of
Association of the Company or in any other way.
(e) Subsidiaries of the Company. The Company has
provided to Sealed Air and Holdings a correct and complete list
setting forth (i) the name and jurisdiction of incorporation of
each Subsidiary, (ii) the number of shares of each class of
capital stock of each Subsidiary authorized, issued and
outstanding, and (iii) the number of shares of each class of
capital stock of each Subsidiary owned by the Company and each
other shareholder of such Subsidiary. All of the outstanding
shares of capital stock of each Subsidiary are validly issued,
fully paid and non-assessable with no liability attaching to the
ownership thereof. Except as has been disclosed to Sealed Air
and Holdings, no shares of capital stock of any Subsidiary are
held in the treasury of such Subsidiary. The Company, and each
Subsidiary which owns capital stock in any other Subsidiary, has
valid legal title to all of the outstanding shares of capital
stock of each Subsidiary owned by it, and such shares are owned
by the Company or such Subsidiary, as the case may be, free and
clear of all Encumbrances. There are no voting trusts or other
agreements or understandings with respect to the voting or
transfer of the capital stock of any Subsidiary. The
Subsidiaries listed on such list are the only Subsidiaries of the
Company. The Company has provided to Sealed Air and Holdings a
correct and complete list of each jurisdiction in which each such
Subsidiary is qualified to do business as a foreign corporation.
For purposes of this Agreement, the term "Subsidiary" means any
corporation or other business entity in which the Company or any
other Subsidiary, directly or indirectly, owns or has the
ability, or had the ability before giving effect to the
transactions contemplated by this Agreement, to control 50% or
more of the equity interest.
(f) Financial Statements. The Company has delivered
to Sealed Air and Holdings (i) audited consolidated financial
statements of the Company and its Subsidiaries including any
related notes thereto and the reports thereon of Ernst & Young,
independent certified public accountants, for the five fiscal
years of the Company ended June 30, 1994 (containing consolidated
balance sheets as of the end of each such fiscal year and the
related consolidated statements of income for the fiscal years
ended on such dates) and (ii) unaudited consolidated balance
sheets of the Company as of September 30, 1994 and the related
consolidated statements of income and cash flows for the three-
month period then ended. The foregoing audited consolidated
financial statements have been prepared in accordance with
applicable New Zealand legislation and accounting principles so
as to give a fair view of the consolidated financial position,
results of operations and cash flows of the Company and its
Subsidiaries as of the dates and for the respective periods
indicated, and the foregoing unaudited financial statements have
been prepared on a basis consistent with previous management
accounts of the Company for prior periods. To the best of the
knowledge of the Selling Shareholders, there is no basis for the
assertion against the Company or any of its Subsidiaries of any
contingent liability or obligation or any indebtedness of any
nature not adequately noted, reflected or reserved against in
such financial statements which would have or be likely to have a
material adverse effect on the consolidated financial position of
the Company and its Subsidiaries taken as a whole.
(g) Certain Changes or Events. Since June 30, 1994,
except as contemplated by this Agreement, as disclosed to Sealed
Air and Holdings or as consented to expressly in writing by
Sealed Air and Holdings:
(i) to the best of the Company's and the Selling
Shareholders' knowledge, neither the Company nor any of
its Subsidiaries has 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 to the Company
and its Subsidiaries taken as a whole;
(ii) to the best of the Company's and the Selling
Shareholders' knowledge the business of the Company and
its Subsidiaries has been carried on in a normal basis
and in accordance with previous practice and will be so
carried on until the Closing; and
(iii) neither the Company nor any Subsidiary has
disposed of any assets other than in the ordinary
course of business, effected any change in its capital
structure, paid any dividend or incurred any
indebtedness other than pursuant to the lines of credit
in effect at June 30, 1994; or
(iv) to the best of the Company's and the Selling
Shareholders' knowledge, neither the Company nor any
Subsidiary has suffered any damage, destruction or
property loss, other than any damage destruction or
loss in respect of which the relevant Company or
Subsidiary has been fully compensated by receipt of
insurance proceeds, which materially and adversely
affects or could materially and adversely affect its
condition (financial or otherwise), properties, assets,
business or operations, or the prospects of the Company
and its Subsidiaries taken as a whole.
As used herein, the term "material adverse change" shall mean:
(x) a material and adverse change or a change which is
likely to be material and adverse in the consolidated
financial position or operations of the Company and its
Subsidiaries taken as a whole; or
(y) a material and adverse change or a change which is
likely to be material and adverse in the ability or
willingness of the Company and its Subsidiaries taken
as a whole to perform and comply with their obligations
under any agreement to which they are a party or
obligations to which they are subject.
(h) Title to Properties; Liens
(i) The Company and each of its Subsidiaries has
good and marketable title to, or valid and subsisting
leasehold interests in, all of its material properties
and assets, real and personal, tangible and intangible.
Except as has been disclosed to Sealed Air and
Holdings, such properties and assets are subject to no
mortgage, 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 the
Company or any of its Subsidiaries. There is not under
any lease of material real or personal property to
which the Company or any of its Subsidiaries is a party
any existing material default or event of default or
event which with notice or lapse of time or both would
constitute a material default.
(ii) For the purposes of this clause (ii), the
following definitions shall apply:
(x) "Environmental Law" shall mean any law
relating or pertaining to the Environment or the
health or safety of the public or workers; and
(y) "Environment" shall mean the environment
or surroundings including (without limitation) air
(including without limitation that within
buildings or natural or man-made structures,
whether above or below ground), water (including
without limitation territorial, coastal and inland
waters and natural water and drains and sewers),
and land (including without limitation sealed or
riverbed under any water as described above,
surface land and subsurface land).
The Company and its Subsidiaries have:
(A) Acted in accordance with the best
practice from time to time in relation to all
matters and practices affecting or which
might affect the Environment; and
(B) To the best of the knowledge of the
Selling Shareholders, the Company and its
Subsidiaries have obtained and complied with
all consents, approvals and permits,
desirable or advisable under Environmental
Law in relation to the business and
operations of the Company or its
Subsidiaries.
(iii) To the best of the knowledge of the Selling
Shareholders, the operations of the Company and its
Subsidiaries comply in all material respects with all
applicable zoning laws, ordinances and regulations
except for such as would not have a materially adverse
effect on the financial condition or operations of the
Company and its Subsidiaries taken as a whole.
(i) Adequacy of Patents and Other Rights. The
information disclosed to Sealed Air and Holdings by the Selling
Shareholders has included a true and complete list of:
(x) all patents, patent applications, trademarks,
trade names, copyrights or any other intellectual property
(A) owned or otherwise held in the name of the Company or
any Subsidiary of the Company or (B) owned by or otherwise
held in the name of third parties (and licensed to or
otherwise used by the Company or any Subsidiary); and
(y) all licenses, assignments and agreements to which
the Company, any Subsidiary of the Company or any Selling
Shareholder is a party relating to any patent, patent
application, trademark, trade name, copyright, process,
design, trade secret, know-how, technology or any other
intellectual property used in the business of the Company or
any Subsidiary.
To the best of the knowledge of the Company and the Selling
Shareholders, (A) the foregoing items are, and prior to the
Closing will be, beneficially owned and registered in the name of
the Company or one of its Subsidiaries free and clear of any
Encumbrances, (B) neither the Company nor any Subsidiary of the
Company in any material respect has infringed or is infringing,
or has engaged or is engaging in any unauthorized use or
misappropriation of, any patent, trademark, trade name,
copyright, process, design, invention, trade secret, know-how,
technology or other intellectual property used or usable in the
business of the Company or any Subsidiary of the Company that is
owned by or belongs to any third party, and (C) except as has
been disclosed to Sealed Air and Holdings, there is no pending or
threatened claim of such nature against the Company or any
Subsidiary of the Company.
(j) Litigation, Etc. Except as disclosed to Sealed
Air and Holdings, there are no actions, suits, proceedings or
investigations pending or, to the best of the knowledge of the
Company or the Selling Shareholders, threatened against or
affecting the Company, any Subsidiary of the Company or any of
the Selling Shareholders, at law or in equity, before any court,
commission, board, bureau, agency, instrumentality or other
governmental authority or before any arbitrator that are or are
likely to be materially adverse to the Company and its
Subsidiaries taken as a whole. To the best of the knowledge of
the Company and the Selling Shareholders, there are no claims
that are or are likely to be materially adverse to the Company
and its Subsidiaries taken as a whole that have not been asserted
against the Company, any Subsidiary of the Company or any of the
Selling Shareholders that are probable of assertion.
(k) Governmental Consents, Etc. Except for such as
shall have been acquired prior to the Closing, none of the
Company, any Subsidiary or any Selling Shareholder is required to
obtain any consent, approval or authorisation of any governmental
authority in connection with the execution, delivery and
performance of this Agreement or any Ancillary Agreement or
Related Agreement or the consummation of the transactions
contemplated by this Agreement or any Ancillary Agreement or
Related Agreement.
(l) Compliance With Law. The Company and each of its
Subsidiaries hold all registrations, licenses, franchises,
permits and authorisations necessary for the lawful conduct of
their respective businesses as now being conducted and as
proposed by them to be conducted and have conducted their
respective businesses so as to comply, and to the best of the
knowledge of the Company and the Selling Shareholders have
complied and are complying 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 its products) of all
federal, national, state, local and foreign governmental bodies,
agencies and subdivisions and regulatory authorities having,
asserting or claiming jurisdiction over them or over any part of
their operations and are not in violation of any thereof, except
for such registrations, licenses, franchises, permits and
authorisations, the lack of which, and for such statutes, laws,
ordinances, rules and regulations, non-compliance with or
violations of which (or the curing thereof), in any one case or
in the aggregate, would not have a materially adverse effect on
the assets, liabilities, earnings, business, prospects or
condition (financial or otherwise) of the Company and its
Subsidiaries taken as a whole or impair the ability of the
Company, any of its Subsidiaries or any of the Selling
Shareholders to consummate the transactions contemplated by this
Agreement or any of the Ancillary Agreements or Related
Agreements.
(m) Existing Contracts. To the best of the knowledge
of the Selling Shareholders, all material contracts, agreements,
leases, licenses and understandings to which the Company or any
of its Subsidiaries is a party or by which any of their
respective properties or assets are bound or affected (true,
correct and complete copies of which have been delivered or made
available to Sealed Air and Holdings) are in full force and
effect and no material default, or event which with notice or
lapse of time or both would constitute a material default, exists
in respect thereof on the part of the Company or any of its
Subsidiaries. The Company has provided to Sealed Air and
Holdings a true and complete list of all contracts and
arrangements between the Company or any of its Subsidiaries and
any director or officer of the Company or any of its
Subsidiaries, any Affiliate of the Company or any of its
Subsidiaries or any Associate of any such director, officer or
Affiliate.
(n) Taxes, Etc.
(i) For the purposes of this clause (n) and of
Section 6, "Taxation" means all forms of taxation and
all other statutory, governmental or local governmental
impositions, duties, levies, tariffs and rates, whether
imposed or payable in New Zealand or elsewhere, and
includes any reassessment thereof, and all penalties,
fines, interest, costs and expenses in connection with
any of the foregoing.
(ii) The Company and each of its Subsidiaries has
filed or will prior to the Closing Date file within the
time prescribed by law (including extensions of time
approved by the appropriate taxing authority) all
Taxation and information returns and reports required
to be filed with the Governments of New Zealand,
Australia, the United Kingdom, Germany, the United
States of America and with each other national, state,
local or other taxing jurisdiction in which the Company
or any of its Subsidiaries is incorporated, transacts
business or owns, leases or operates property (real or
personal), or in which the failure to file such returns
or pay any Taxation could have any materially adverse
impact on the business, properties or condition,
financial or otherwise, of the Company or any of its
Subsidiaries, and with all governmental units thereof,
and has paid in full or made adequate provision, for,
or made a reasonable estimate in management accounts
of, the payment of all Taxation, interest, penalties,
assessments or deficiencies due or claimed to be due,
provided that in relation to national, state, local or
other jurisdictions in which the Company or any of its
Subsidiaries transacts business only, this warranty
shall be limited to the best of the knowledge of the
Selling Shareholders. There is and will be no material
omission, deficiency, error, misstatement or
misrepresentation in any Taxation or information return
or report filed for any year or period ending on or
prior to the Closing Date. True and complete copies of
all such Taxation and information returns and reports
and related documents have been made available if
requested, and when requested have been furnished, to
Sealed Air and Holdings. Neither the Company nor any
of its Subsidiaries has waived the statute of
limitations in connection with the filing of Taxation
and information returns and reports of the payment of
Taxation to the appropriate taxing authority nor has
any of them received any notice of any failure to file
a Taxation or information return or report claimed to
be required to be filed that has not been filed. The
audited consolidated financial statements of the
Company referred to in Section 5(f) contain adequate
provision for all income, franchise, real property,
personal property, value added, goods and services and
all other Taxation of the Company and each of its
Subsidiaries, including interest and penalties in
respect thereof, required to have been accrued or for
which the Company or any of its Subsidiaries may be
liable as of the respective dates thereof. Neither the
Company nor any of its Subsidiaries has been notified
of any examination in relation to Taxation nor to the
best of the Selling Shareholder's knowledge is the
subject of any pending or threatened examination in
relation to Taxation nor are a party to any proceeding
or inquiry by any governmental authority for the
assessment or the proposed assessment or for the
collection of Taxation, or interest or penalties with
respect thereto, nor has any claim for the assessment
or proposed assessment or for the collection of
Taxation, or interest or penalties with respect
thereto, been asserted against the Company or any of
its Subsidiaries. There are no liens for Taxation that
is due and unpaid on any of the properties or assets of
the Company or any of its Subsidiaries. The New
Zealand income tax returns of the Company have not been
audited by the Inland Revenue Department for any fiscal
years of the Company ended on or after June 30, 1993.
The results of all prior audits and investigations by
the Inland Revenue Department and other relevant
Taxation authorities are properly reflected in the
foregoing financial statements and any deficiencies
proposed or assessed have been paid.
(o) No Brokers or Finders. Except as has been
disclosed to Sealed Air and Holdings no person or entity is
entitled to any brokerage commission, finder's fee or other like
payment from the Company or any of its Subsidiaries or any
Selling Shareholder for which Sealed Air or the Company would be
liable in connection with the transactions contemplated by this
Agreement, any Ancillary Agreement or any Related Agreement.
(p) Employee Benefit Plans.
(i) The Company and the Selling Shareholders have
provided to Sealed Air and Holdings a true and complete
list of all employee benefit and welfare plans of, or
other fringe benefits provided by, the Company or any
of its Subsidiaries, including superannuation, pension,
profit-sharing, thrift, savings, bonus, retirement,
vacation, life insurance, health insurance, sickness
disability, medical and death benefit plans.
(ii) To the best of the knowledge of the Selling
Shareholders, the Company and each of its Subsidiaries
has complied, and will until the Closing comply, with
all its obligations under each superannuation, pension,
profit-sharing or other retirement scheme
(collectively, the "Superannuation Schemes") to which
they are parties, and the Superannuation Schemes have
been managed in compliance with all the requirements of
the trust deed or other constituent documents under
which they are established and with all relevant
provisions of the Income Tax Act 1976 or other
applicable laws.
(iii) To the best of the knowledge of the Selling
Shareholders, all contributions to the Superannuation
Schemes payable by the Company or any of its
Subsidiaries and the members have to date been, and
will until the Closing be, duly paid.
(iv) To the best of the knowledge of the Selling
Shareholders, the Superannuation Schemes are, and will
on the Closing be, funded to an extent which is
sufficient to meet the benefits prospectively and
contingently payable to the members of the
Superannuation Schemes.
(v) To the best of the knowledge of the Selling
Shareholders, neither the Company nor any Subsidiary
has any liability for providing retirement life and
medical benefits coverage to the active or retired
employees of the Company or any Subsidiary.
(q) Related Agreements. The representations and
warranties of the parties to the Related Agreements other than
Sealed Air contained therein or in any document or instrument
delivered to Sealed Air thereunder are true and correct and will
be true and correct on the Closing Date as if made on that date.
6. Indemnification.
(a) Indemnification.
(i) Subject to the terms and conditions set forth
in this Section 6, the Selling Shareholders hereby
agree that they will indemnify and save harmless Sealed
Air, Holdings, the Company, each Subsidiary, each
Affiliate of Sealed Air, and each of their directors,
officers, employees and agents (collectively, the
"Indemnitees") from and against any and all losses,
liabilities, fines, penalties, interest, taxes,
settlements, awards, judgments, claims, damages and
expenses (including reasonable attorneys' fees and
expenses) (collectively "Losses") incurred by any
Indemnitee by reason of, or arising out of any breach
of this Agreement including, without limitation, any
breach or inaccuracy at the time it is made of any
representation or warranty contained in Section 4 or
Section 5 of this Agreement, other than Section 5(q).
(ii) No Losses may be claimed by Sealed Air or
Holdings except in the case of the representations and
warranties contained in Sections 4(a), 4(b), 4(c),
6(a)(vi) and 7(g), unless the amount of each individual
Loss in respect of which a claim is made exceeds the
sum of NZ$100,000 (a "Qualifying Loss"), and the amount
of each Qualifying Loss when added to the amount of all
other Qualifying Losses exceeds the sum of
NZ$1,000,000. When that level of Losses is reached,
all Qualifying Losses claimed, not just Qualifying
Losses for the amount in excess of NZ$1,000,000, may be
claimed.
(iii) Notwithstanding the foregoing, except in
the case of the representations and warranties
contained in Sections 4(a), 4(b), 4(c), 6(a)(vi) and
7(g), the maximum liability of the Selling Shareholders
for Losses pursuant to this Section 6 shall be limited
to the $5,000,000(NZ) delivered to the Escrow Agent in
accordance with section 2(b)(iii).
(iv) If after the Selling Shareholders have made
a payment to any Indemnitee in respect of a claim under
Section 6, any of the Indemnitees receives a payment
from another source in respect of that claim, then the
Indemnitee will promptly following receipt of such
payment in cleared funds pay immediately or procure the
immediate payment to the Selling Shareholders of an
amount equal to the net amount of such payment (after
tax).
(v) If the Selling Shareholders are liable to an
Indemnitee in respect of any matter arising under or in
connection with this Agreement, the amount payable by
the Selling Shareholders will be assessed after taking
into account any saving in taxation to any of the
Indemnitees as a result of the liability, claim or
other payment or indebtedness of the Indemnitee, in
respect of which the liability of the Selling
Shareholders arose.
(vi) Notwithstanding any other provision of this
Agreement, the Selling Shareholders shall pay to
Holdings by way of a reduction in the Purchase Price
the amount of any Losses (calculated on an after tax
basis) incurred by the Company or any Subsidiary in
connection with the termination of the employment of
the managing director of Danco NZ Limited or any claims
arising therefrom, which amounts if determined before
the Closing shall be deducted from the Purchase Price,
and if determined after the Closing shall be paid to
Holdings by way of partial refund of the Purchase
Price. The provisions of this section 6(a)(vi) shall
not apply to the payment of monies and the transfer of
the motor vehicle (including any obligation to pay
fringe benefit tax arising from the transfer of the
motor vehicle) by Danco (NZ) Limited to Ross Galloway
pursuant to an agreement dated 16 December 1994.
(b) Liability for Indemnification. Except in the case
of the representations and warranties contained in Sections 4(a),
4(b), 4(c), 6(a)(vi) and 7(g), (which shall survive the Closing
for an unlimited period of time), the Selling Shareholders shall
not be liable for indemnity under this Section 6:
(i) for any Losses unless a Notice of Claim (as
defined in Section 6(c)) has been given to the Selling
Shareholders by Sealed Air on or prior to the second
anniversary of the Closing Date and, if the parties
have not otherwise reached agreement relating to any
claim in respect of which Sealed Air seeks to enforce
the indemnity, unless proceedings for determination of
such claim, whether before any court, arbitrator or
tribunal are filed by Sealed Air or Holdings (as the
case may require) within 60 days after such second
anniversary;
(ii) for any Losses arising out of (x) any
particular matter as to which the nature and existence
of such matter shall have been fully and fairly
disclosed to Sealed Air prior to the Closing hereunder;
and (y) any matter provided for under this Agreement or
done or omitted to be done after the date of this
Agreement with the prior consent of Sealed Air or in
accordance with the terms of this Agreement.
(iii) for any breach of or claim arising under any
representation, warranty, indemnity, covenant or
undertaking given by the Selling Shareholders under
this Agreement which arises directly or indirectly from
or as a consequence of the execution or implementation
of the Related Agreements by the parties to those
agreements.
(c) Indemnity Claims. The procedures set forth in
this subsection (c) shall govern the enforcement by Sealed Air
and Holdings of all claims for indemnification pursuant to this
Section 6.
(i) Notice of Claim. If any matter shall arise
which, in the opinion of Sealed Air and Holdings,
constitutes or may give rise to a Loss subject to
indemnification by the Selling Shareholders as provided
in this Agreement (an "Indemnity Claim"), Sealed Air
and Holdings shall give prompt written notice (a
"Notice of Claim") of such Indemnity Claim to the
Selling Shareholders, setting forth the relevant facts
and circumstances of such Indemnity Claim and an
estimate of the Losses in respect of which such
Indemnity Claim is made in reasonable detail, and shall
advise the Selling Shareholders periodically thereafter
as to developments coming to the attention of Sealed
Air and Holdings materially affecting any matter
relating to such Indemnity Claim; provided, however,
that any failure on the part of Sealed Air or Holdings
to give a Notice of Claim on a timely basis shall not
limit or otherwise affect any rights of Sealed Air,
Holdings or any other Indemnitee under this Section 6,
unless such failure is prejudicial to the Selling
Shareholders.
(ii) Third Party Claims. If any Indemnity Claim
is based upon any claim, demand, suit or action of any
third party against Sealed Air, Holdings, the Company
or any Subsidiary (a "Third Party Claim"), then:
(x) If the Losses in respect of which such
Indemnity Claim is made exceed $5,000,000 (NZ),
Sealed Air and Holdings may undertake to defend
such Third Party Claim themselves. If Sealed Air
and Holdings so undertake themselves the defense
of the Third Party Claim, (i) they shall permit
the Selling Shareholders, at their sole expense,
to participate in (but not control) such defense,
and shall not settle or compromise such Third
Party Claim without the consent of the Selling
Shareholders (which shall not be unreasonably
withheld or delayed so long as there is a
certificate or opinion from a legal counsel having
recognised skill in respect of the legal issues in
dispute in the jurisdiction in which the
settlement or compromise is made to the effect
that such settlement or compromise is in the best
interests of Sealed Air, Holdings, the Company or
any of its Subsidiaries, as the case may be,
having regard to the likelihood or not of such a
claim being successfully enforced or defended) and
(ii) the Selling Shareholders shall make available
to Sealed Air and Holdings any documents and
materials in the possession of the Selling
Shareholders that may be necessary or helpful to
the defense of such Third Party Claim, and shall
otherwise cooperate with Sealed Air, Holdings, the
Company or any of its Subsidiaries, as the case
may be, to the extent requested by Sealed Air and
Holdings.
(y) If the Losses in respect of which such
Indemnity Claim is made do not exceed $5,000,000
(NZ), or if Sealed Air and Holdings do not
undertake to defend such Third Party Claim
themselves in accordance with clause (x), the
following provisions shall apply:
(A) Sealed Air and Holdings shall
forthwith give notice of such Third Party
Claim (including reasonable details) to the
Selling Shareholders and shall not make any
payment or admission of liability in respect
of the Third Party Claim, or take any other
steps which may in any way prejudice the
defence thereof, without the prior written
consent of the Selling Shareholders, which
shall not be unreasonably withheld.
(B) Sealed Air and Holdings shall
ensure that Selling Shareholders may at the
Selling Shareholders' option, in the name of
the company concerned, conduct all
negotiations and prosecute or defend any
proceedings relating to the Third Party
Claim, and that for such purpose Sealed Air
and Holdings shall procure that the company
concerned will make available to the Selling
Shareholders all such information, books and
records, and give such other co-operation, as
the Selling Shareholders may reasonably
require for the purpose.
(C) Subject to the limitations
contained in this Section 6, the Selling
Shareholders shall upon final determination
of the Third Party Claim fully discharge at
their own expense all Losses of the
Indemnities with respect to such Third Party
Claim, and shall be entitled, in their sole
discretion and at their sole expense, but
without any liability of Sealed Air or
Holdings or any other Indemnitee therefor, to
compromise or settle such Third Party Claim
upon terms acceptable to the Selling
Shareholders so long as the compromise or
settlement: (X) entails a delivery to the
Indemnitees of a general release in form and
substance satisfactory to Sealed Air and
Holdings, by the party or parties that
asserted such Third Party Claim; (Y)
requires only the payment of money to such
party or parties and does not provide for the
imposition of any liability, requirement or
restriction of any Indemnitee, and (Z) Is
otherwise reasonably satisfactory to Sealed
Air and Holdings.
(z) If such Third Party Claim relates solely
to a tax matter or an intellectual property
matter, Sealed Air and Holdings will defend
such Third Party Claim themselves, and in
connection therewith (i) they shall permit
the Selling Shareholders, at their sole
expense, to participate in (but not control)
such defense, and shall not settle or
compromise such Third Party Claim without the
consent of the Selling Shareholders (which
shall not be unreasonably withheld or delayed
so long as there is a certificate or opinion
from a legal counsel having recognized skill
in respect of the legal issues in dispute in
the jurisdiction in which the settlement or
compromise is made to the effect that such
settlement or compromise is in the best
interests of Sealed Air, Holdings, the
Company or any of its Subsidiaries, as the
case may be, having regard to the likelihood
or not of such a claim being successfully
enforced or defended) and (ii) the Selling
Shareholders shall make available to Sealed
Air and Holdings any documents and materials
in the possession of the Selling Shareholders
that may be necessary or helpful to the
defense of such Third Party Claim, and shall
otherwise co-operate with Sealed Air,
Holdings, the Company or any of its
Subsidiaries, as the case may be, to the
extent reasonably requested by Sealed Air and
Holdings. Without limiting any of their
other rights arising out of this Section 6
with respect to such Third Party Claim, if
the amount in dispute with respect to such
matter exceeds $100,000(NZ), Sealed Air and
Holdings shall be entitled to be reimbursed
for the reasonable amount of all fees and
expenses of counsel and all other
professional or legal costs of defense of
such Third Party Claim from the amounts
deposited with the Escrow Agent without
regard to the limitations set forth in
Section 6(a)(ii).
(iii) Resolution of Conflicts. With respect to
any Notice of Claim that does not involve a Third Party
Claim, the chief executive officer of Sealed Air and
the Selling Shareholders shall negotiate in good faith
for the purpose of achieving a resolution of
responsibility for the resolution of the claim in
respect of which such Notice of Claim was given. If
such resolution is not achieved the disagreement shall
be referred to arbitration in accordance with the
Arbitration Act (NZ) and its amendments.
(iv) Copies of Information The Selling
Shareholders shall be entitled to retain copies of all
information relating to the Company and its
Subsidiaries supplied by the Selling Shareholders or
the Company to Sealed Air or Holdings prior to Closing
provided that all such copies (x) shall be held by Bell
Gully Buddle Weir on behalf of the Selling Shareholders
(y) shall be used only for the purpose of defending any
claims made against the Selling Shareholders pursuant
to Section 6 and (z) shall be destroyed upon the
expiration of the period within which claims may be
made pursuant to Section 6, or after resolution of then
existing claims whichever is later.
(d) Claims. The rights of every person falling within
the definition of Indemnitees in Section 6(a) to claim against
the Selling Shareholders for breach of any representation,
warranty or covenant of the Selling Shareholders under Sections
2(c), 4, 5 and 7(a) of this Agreement shall be pursuant only to
the provisions of this Section 6, to the exclusion of all other
rights.
(e) Indemnity Payment. Any obligations of the Selling
Shareholders to pay to any Indemnitee the amount of any claim
under this Section 6 other than any claim made in respect of a
breach by the Selling Shareholders of their obligations under
Sections 4(a), 4(b), 4(c) and 7(g) shall be deferred until the
Escrow Agent shall have received the moneys delivered to the
Escrow Agent in accordance with Section 1(e)(iii) on account of
the sale of the Sealed Air Shares in respect of which a
certificate has been delivered to the Escrow Agent in accordance
with Section 2(b)(iii), or other moneys in accordance with
Section 8(f) if the Registration Statement does not become
effective.
(f) Environmental Contamination. Notwithstanding any
other provision of this Section 6 (except for the provisions of
Section 6(a)(iii) which will continue to apply to this
Section 6(f)) the Selling Shareholders will reimburse the
Indemnitees for the costs and expenses and any Losses associated
with the remediation of the contamination identified as item (i)
of the Danco (NZ) Limited section of the executive summary to the
environmental audit provided to Sealed Air and Holdings by Tonkin
& Taylor (draft December 1994) a copy of which has been provided
to the Selling Shareholders by Sealed Air ("the Contamination")
upon the following terms and conditions:
(t) The Selling Shareholders have identified the
sum of $1,388,000 (NZ) of the Purchase Price
(derived from the sale of Sealed Air Shares)
to be available to them, and held by the
trustees of the Sealed Air Share Trust, to
meet the costs and expenses of the Selling
Shareholders in carrying out and completing
the takeover offer in respect of the former
Trigon Shareholders and the costs and
expenses of and associated with the sale of
the Outstanding Company Shares to Sealed Air
and Holdings ("the Fund").
(u) It is anticipated by the Selling Shareholders
that after payment of all such costs and
expenses referred to in (a) above, there will
remain in the Fund approximately $600,000
(NZ). The Selling Shareholders agree to hold
not less than $300,000 (NZ) in the Fund until
the matters provided for in this Section 6(f)
have been finally resolved and all
obligations under this Section 6(f) have been
satisfied.
(v) The Selling Shareholders, in consultation
with Sealed Air and Holdings, shall identify
the works (and their expected cost)
reasonably required to remove the
Contamination in accordance with New Zealand
standards for industrial properties and
obtain from Sealed Air its approval of such
works and their expected cost (which approval
shall not be unreasonably withheld).
(w) At the option of Sealed Air, and subject to
subparagraphs (e) and (f) below, either:
(i) the Selling Shareholders shall pay to
Danco (NZ) Limited on an after tax basis
an amount equal to the after tax
expected cost of carrying out such works
as established under paragraph (c) above
and such payment shall be in full and
final settlement of any claim the
Indemnities may have arising under this
Section 6(f); or
(ii) the Selling Shareholders shall carry out
such works established under paragraph
(c) above at the cost of Danco (NZ)
Limited and then the Selling
Shareholders shall immediately reimburse
to Danco (NZ) Limited the after tax cost
to Danco (NZ) Limited of those works and
such payment shall be in full and final
settlement of any claim the Indemnities
may have arising under this Section
6(f).
(x) Where there is an obligation upon the Selling
Shareholders to make a payment to Danco (NZ)
Limited pursuant to this Section 6(f), they
shall make that payment:
(x) first, from the monies available in the
Fund after all other costs and expenses
for which the Fund is established have
been first paid (including any costs and
expenses associated with resolving the
matters arising under this paragraph
(f)) up to a maximum of $300,000(NZ);
and
(y) secondly, without regard for any other
provisions of this Section 6 except for
Section 6(a)(iii), as to any balance
from the amount held by the Escrow Agent
in accordance with Section 2(b)(iii).
(y) Notwithstanding the foregoing provisions of this
Section 6(f), if in the opinion of Messrs Bell
Gully Buddle Weir and Russell McVeagh McKenzie
Bartleet & Co, the Contamination shall be the
ultimate responsibility of one or more third
parties, then, at the request of the Selling
Shareholders, Sealed Air and Holdings shall cause
Danco (NZ) Limited to pursue its remedies against
such third parties with all due speed and
efficiency and in consultation with the Selling
Shareholders, and the Selling Shareholders shall
pay or reimburse Danco (NZ) Limited for its
expenses (including the fees and expenses of
counsel) or other Losses incurred in connection
therewith.
(z) Sealed Air, Holdings and the Selling Shareholders
shall cooperate in an endeavour to achieve a
solution satisfactory to all of them. Sealed Air
and Holdings shall make available and shall
procure Danco (NZ) Limited to make available to
the Selling Shareholders all reports, information
and documents affecting the Contamination or the
rights and obligations of any person relating to
the Contamination and shall procure Danco (NZ)
Limited to grant all reasonable access to the
affected site in favour of the Selling
Shareholders and their advisors and experts for
the purpose of carrying out tests, inspections and
taking samples.
7. Certain Agreements.
(a) Conduct of Business of the Company and its
Subsidiaries Prior to the Closing, etc. Prior to the Closing,
except as contemplated by this Agreement or as may be expressly
approved in writing by Sealed Air, the Selling Shareholders:
(i) will cause the Company and each of its
Subsidiaries to operate its business only in the usual,
regular and ordinary manner consistent with the
Company's and such Subsidiary's past practices and, to
the extent consistent with such operation, will use
their best efforts to (a) preserve the present business
organization of the Company and each of its
Subsidiaries intact, (b) keep available the services of
the present officers and employees of the Company and
each of its Subsidiaries, and (c) preserve the present
relationships of the Company and each of its
Subsidiaries with persons having business dealings with
them;
(ii) will not permit the Company or any of its
Subsidiaries to amend, modify or terminate any
agreement material to the operation of its business as
currently conducted or to enter into any new or
additional agreements relating to the manufacture or
sale of its products with any third parties other than
orders taken in the ordinary course of business and
agreements consistent with past practice;
(iii) will cause the Company and each of its
Subsidiaries to maintain all of its properties in
customary repair, order and condition and to maintain
adequate insurance upon all of its properties, at least
in such amounts and of such kinds comparable to that in
effect on the date of this Agreement;
(iv) will cause the Company and each of its
Subsidiaries to maintain its 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, rules and regulations applicable
to it and to the conduct of its business;
(v) will not permit any amendment to be made in
the charter documents or bylaws of the Company or any
of its Subsidiaries or permit the Company or any of its
Subsidiaries to merge or consolidate with, or to sell
any of its assets to, any other corporation or change
the character of its business;
(vi) other than to the extent necessary to
facilitate payment of the cash dividend referred to in
Section 3(a)(i) and an interim dividend not exceeding
$0.02(NZ) per Outstanding Company Share on a fully
imputed basis as agreed between the parties, will not
permit (x) any change to be made in the number of
shares of the Company Capital Stock issued and
outstanding, (y) any change to be made in the number of
shares of the capital stock of any Subsidiary issued
and outstanding, or (z) any option, warrant or any
other right to purchase or to convert any obligation
into shares of Company Capital Stock or shares of the
capital stock of any Subsidiary to be granted or made
by the Company or any of its Subsidiaries;
(vii) other than to the extent necessary to
facilitate payment of the cash dividend referred to in
Section 3(a)(i) and an interim dividend not exceeding
$0.02(NZ) per Outstanding Company Share on a fully
imputed basis as agreed between the parties, will not
permit (A) any dividend or other distribution or
payment to be declared, paid or made by the Company or
any of its Subsidiaries in respect of Company Capital
Stock or capital stock of such Subsidiary after the
date of this Agreement and prior to the Closing Date,
(B) the Company or any of its Subsidiaries to make any
purchase, redemption or other acquisition of any
outstanding shares of Company Capital Stock or capital
stock of a Subsidiary, or (C) any payment to any
Selling Shareholder or any Affiliate or Associate of
any Selling Shareholder (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;
(viii) will not permit the Company or any of its
Subsidiaries to encumber or mortgage any of its
properties or assets or to enter into any transaction
or to make or enter into any contract or commitment
which is not in the ordinary course of business, nor
will the Principal Selling Shareholder permit the
Company or any of its Subsidiaries 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 properties, or to enter
into any arrangement, agreement or undertaking
(including, without limitation, employment agreements
with executives), or to pay or promise to pay any bonus
or special compensation to employees, except in
accordance with existing employment agreements, or to
modify, amend or terminate any bonus, pension, profit-
sharing, compensation, insurance or other similar plan,
agreement, trust, fund or arrangement for the benefit
of employees;
(ix) will promptly take, and shall cause the
Company and each of its Subsidiaries to take, such
actions as shall be necessary to satisfy the conditions
set forth in Section 3 requiring action on the part of
any of the Selling Shareholders or on the part of the
Company or any of its Subsidiaries; and
(x) 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 Company or any of its Subsidiaries, nor any
Selling Shareholder, nor any of their respective
Affiliates or Associates shall solicit inquiries or
proposals or participate in any negotiations
concerning, or provide any person with any information
in connection with, any acquisition or purchase by
merger, consolidation, sale of stock or assets or
otherwise of all or substantially all of the assets or
capital stock of the Company, and the Selling
Shareholders and the Company will notify Sealed Air
immediately if any such inquiries or proposals are
received by any of them.
(b) Delivery of Documents. Any document required to
be delivered under the terms of this Agreement shall be
accompanied by a writing signed by or on behalf of the party upon
whom the obligation to so deliver such document is placed, which
writing shall expressly refer to the Section of this Agreement
pursuant to which the document is being delivered.
(c) Delivery of Minute Books and Corporate Records.
The Selling Shareholders shall cause the minute books and
corporate records of the Company and its Subsidiaries 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 on the Closing Date.
(d) Listing of the Sealed Air Shares. Sealed Air
shall submit to the New York Stock Exchange, prior to the
Closing, 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 Company and the Selling Shareholders will
cooperate with Sealed Air in the preparation and submission of
such listing application as Sealed Air may reasonably request,
and hereby consent to the inclusion therein of the financial
statements described in Section 5(f) 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.
(e) Sealed Air Guaranty. Sealed Air shall cause
Holdings to duly and timely perform its obligations under this
Agreement and hereby unconditionally and irrevocably (i)
guarantees the full and faithful performance by Holdings of each
and every obligation of Holdings under this Agreement, and (ii)
indemnifies the Selling Shareholders from and against any loss or
damage which they may suffer as direct result of the breach by
Holdings of any of its obligations under this Agreement. In the
event of any failure by Holdings to perform any of such
obligations, the Selling Shareholders shall provide notice
thereof to Sealed Air, specifying the nature of the default and
Sealed Air shall have a reasonable period not to exceed ten (10)
days after the date of such notice within which to cure such
default or to cause Holdings to cure such default, and, in the
event that Holdings or Sealed Air shall fail to cure such default
within such ten (10) day period, Sealed Air shall thereupon
perform the obligation of Holdings specified in such notice.
Sealed Air represents and warrants to the Selling Shareholders
that it has all necessary corporate power and authority to
undertake the obligations set forth in this Section 7(e) and that
such obligations are legal, valid and binding and enforceable in
accordance with their terms.
(f) Foreman Investments Limited Name. Promptly
following the Closing, Holdings will cause the corporate name of
Foreman Investments Limited to be changed to a name that does not
use the name Foreman, and the Selling Shareholders may thereafter
use the name Foreman Investments Limited for any purpose that is
consistent with the Non-Competition Agreements.
(g) Trigon Employee Share Trust. As soon as
practicable, the Company shall give directions to the trustees of
the Trigon employee share trust to distribute (after allowing for
all taxation liability) all moneys held by such trust after
satisfying existing entitlements of present beneficiaries, and
the Selling Shareholders shall procure that such proceeds, net of
taxes, which the Selling Shareholders warrant shall be not less
than $1,800,000 (NZ), shall be paid to the Company.
Contemporaneously with such payment, the Company shall pay to
such trustees any amounts owed by the Company to such trustees in
their capacity as trustees of such trust. The direction to such
trustees shall not require such trustees to make such a
distribution prior to completion of the transactions referred to
in Section 1(e).
8. Representations, Warranties and Covenants with
Respect to the Sealed Air Shares; Registration of
the Sealed Air Shares; and Restrictions on
Transfer.
(a) Each Selling Shareholder acknowledges to Sealed
Air that:
(i) Such Selling Shareholder has received a copy
of Sealed Air's Annual Report on Form 10-K as filed
with the Securities and Exchange Commission (without
the exhibits thereto), and of Sealed Air's Annual
Report to Stockholders, each for the year ended
December 31, 1993, a copy of Sealed Air's Proxy
Statement dated March 30, 1994 for the Annual Meeting
of Sealed Air's stockholders held on May 20, 1994, and
a copy of Sealed Air's Quarterly Reports on Form 10-Q
for the quarters ended September 30, 1994, and such
Selling Shareholder has had access to such other public
information regarding the business and financial
affairs of Sealed Air as such Selling Shareholder has
deemed necessary to enable such Selling Shareholder to
make an informed investment decision with respect to
the acquisition of the Sealed Air Shares.
(ii) Such Selling Shareholder has such experience
in business and financial matters so as to be able to
evaluate independently the merits and risks of an
investment in the Sealed Air Shares to be acquired by
such Selling Shareholder, and such Selling Shareholder
is able to bear the economic risk of an investment in
the Sealed Air Shares to be acquired by such Selling
Shareholder including, without limiting the generality
of the foregoing, the risk of losing all or any part of
such Selling Shareholder's investment in the Sealed Air
Shares to be acquired by such Selling Shareholder and
the inability of selling or otherwise transferring or
disposing of the Sealed Air Shares to be acquired by
such Selling Shareholder for an indefinite period of
time, other than in compliance with the Securities Act
and the rules and regulations thereunder.
(iii) Such Selling Shareholder has been afforded
an opportunity to ask questions about and receive
answers in response concerning the business and
financial affairs of Sealed Air from representatives of
Sealed Air and the opportunity to obtain any additional
publicly available information that such Selling
Shareholder desired with respect to Sealed Air.
(iv) Such Selling Shareholder is acquiring the
Sealed Air Shares to be acquired by such Selling
Shareholder for such Selling Shareholder's own account
or for the account of the Sealed Air Share Trust and
the beneficiaries thereof or Griton for the purpose of
investment and not with a view to or for sale in
connection with the distribution thereof within the
meaning of the Securities Act and the rules and
regulations promulgated thereunder, nor with any
present intention of distributing or selling the Sealed
Air Shares to be acquired by such Selling Shareholder
other than in compliance with the Securities Act and
the rules and regulations thereunder (which for the
purposes of this Agreement shall include sales of
Sealed Air Shares pursuant to the Registration
Statement (as defined in Section 8(b)).
(v) Any acquisition of Sealed Air Shares by such
Selling Shareholder pursuant to this Agreement will be,
at the time of acquisition, for such Selling
Shareholder's own account or for the account of the
Sealed Air Trust and the beneficiaries thereunder or
Griton and such Selling Shareholder will hold or will
cause the trustees of the Sealed Air Share Trust or
Griton (as the case may be) to hold any Sealed Air
Shares received by such Selling Shareholder or the
Sealed Air Share Trust or Griton pursuant to this
Agreement for such Selling Shareholder's own account,
or for the account of the Sealed Air Share Trust or
Griton, and not with a view to any resale or
distribution thereof in any manner not in compliance
with the Securities Act and the rules and regulations
thereunder. Such Selling Shareholder agrees with
Sealed Air that:
(x) none of such Selling Shareholder, any
trustee of the Sealed Air Share Trust or Griton is
either a citizen or a resident of the United
States;
(y) there is no, and at the Closing Date
there will not be any, plan or intention on the
part of such Selling Shareholder or the Sealed Air
Share Trust or Griton to sell or otherwise dispose
of Sealed Air Shares other than in compliance with
the Securities Act and the rules and regulations
thereunder; and
(z) none of such Selling Shareholder the
Sealed Air Share Trust or Griton will offer to
sell, sell or otherwise dispose of any Sealed Air
Shares except (A) pursuant to an effective
registration statement under the Securities Act
and, unless an exemption from qualification is
available, an effective qualification under the
Blue Sky laws of such states of the United States
in which such Sealed Air Shares are offered, sold
or disposed of, (B) in compliance with Rule 144
under the Securities Act and with any applicable
exemptions from qualification under the Blue Sky
laws of any states in the United States in which
such Sealed Air Shares are offered, sold or
disposed of, or (C) in a transaction that, in the
opinion of securities counsel reasonably
satisfactory to Sealed Air (which counsel may be
Messrs Lowenstein, Sandler, Kohl, Fisher and
Boylan, special U.S. counsel to the Selling
Shareholders), does not require registration of
such Sealed Air Shares under the Securities Act
and does not require qualification under the Blue
Sky laws of any states in the United States in
which such Sealed Air Shares are offered, sold or
disposed of.
(vi) Subject to Sections 8(a)(vii) and 8(e),
unless (x) Sealed Air shall have obtained an opinion of
securities counsel reasonably satisfactory to it that
such legend is not necessary under the Securities Act
or (y) such shares are sold pursuant to the
Registration Statement in accordance with Section 8(b),
the certificates representing Sealed Air Shares issued
at the Closing (and any certificate representing Sealed
Air Common Stock issued in exchange therefor or any
certificate representing Sealed Air Shares sold in
compliance herewith) will bear a legend in
substantially the following form:
"The Shares represented by this
Certificate have not been registered under
the Securities Act of 1933, but have been
issued or transferred to the registered owner
pursuant to an exemption from registration
thereunder. No transfer or assignment of any
such shares shall be valid or effective, and
the issuer of these shares shall not be
required to give any effect to any transfer
or attempted transfer or assignment of these
shares, including, without limitation, a
transfer by operation of law, unless (a) the
issuer shall have first obtained an opinion
of counsel satisfactory to it that the shares
may be transferred without
registration under such Act, (b)
the shares are sold in compliance
with Rule 144 under such Act and
the issuer has been supplied with
documentation indicating compliance
with Rule 144, or (c) the shares
are registered under such Act."
Sealed Air agrees that within twelve (12) business days
after receipt of any opinion referred to in the legend
described above, it will (A) use its reasonable
commercial efforts to cause its transfer agent to issue
certificates without such legend or (B) notify the
registered holder supplying such opinion that such
opinion is not reasonably satisfactory to Sealed Air.
No such legend shall be endorsed on any such
certificates which, when issued, are no longer subject
to the restrictions described in such legend. The
Selling Shareholders agree that Sealed Air may give
such stop-transfer orders as may be necessary or
desirable to its transfer agent to implement or reflect
the provisions of this Section with respect to the
Sealed Air Shares.
(vii) upon the earlier to occur of (i) the
effective date of the Registration Statement (as
defined below) and (ii) the third anniversary of the
Closing, (X) the Selling Shareholders shall be entitled
to exchange the certificates representing their shares
of Sealed Air Common Stock for certificates of like
tenor containing no restrictive legend, and (Y) Sealed
Air shall rescind any stop-transfer instructions given
to the transfer agent for the Sealed Air Common Stock
with respect to such shares of Sealed Air Common Stock.
(viii) prior to the filing of the Registration
Statement, the Selling Shareholders shall inform Sealed
Air of the States in the United States in which they
desire to effect sales of the Sealed Air Shares in
order that Sealed Air may duly and in a timely manner
make any necessary Blue Sky filings or obtain any
necessary Blue Sky qualifications, which Sealed Air
covenants to do.
(b) Registration Pursuant to Rule 415. As soon as
practicable after the Closing Date and in no event later than
thirty (30) days after the date by which the Selling Shareholders
shall have supplied Sealed Air with all information and materials
with respect to the Company and the Selling Shareholders required
in connection with the filing by Sealed Air of the registration
statement referred to in this Section, Sealed Air will file a
registration statement (the "Registration Statement") pursuant to
Rule 415 of the regulations under the Securities Act relating to
the Sealed Air Shares issued to the Selling Shareholders and use
its reasonable commercial efforts to make the Registration
Statement become effective and qualify the Sealed Air Shares
under the Blue Sky laws of such states of the United States or of
the securities laws of such other jurisdictions as may be
reasonably requested, as promptly as practicable after such
filing; provided 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 or other jurisdiction where it
is not so subject. Sealed Air agrees to use its reasonable
commercial efforts to duly and in a timely manner file all
reports required to be filed pursuant to the Securities Exchange
Act 1934, as amended, and the rules and regulations thereunder,
and to keep the Registration Statement effective until the third
anniversary of the Closing Date. The description of the plan of
distribution in the Registration Statement shall be in
substantially the form delivered to and approved by the Selling
Shareholders prior to the execution of this Agreement, with such
changes therein as may be required by the United States
Securities and Exchange Commission or as may otherwise be
required to enable the Registration Statement to comply with the
Securities Act and the rules and regulations thereunder. The
Selling Shareholders will not be entitled to any other rights
with respect to registration of the Sealed Air Shares. Promptly
following request therefor, from time to time, the Selling
Shareholders shall advise Sealed Air of the number of Sealed Air
Shares covered by the Registration Statement that remain held by
them and shall request any former Company shareholder receiving
Sealed Air Shares pursuant to this Agreement or pursuant to the
takeover offer described in Section 3(c)(viii) to similarly
advise Sealed Air.
(c) Expenses. Subject to the limitations contained in
this Section 8(c) and except as otherwise specifically provided
in this Section 8, the entire costs and expenses of the
registration and qualification pursuant to Section 8(b) shall be
borne by Sealed Air. Such costs and expenses shall include the
fees and expenses of counsel for Sealed Air and of its
accountants, all other costs and expenses of Sealed Air incident
to the preparation, printing and filing under the Securities Act
of the Registration Statement and all amendments and supplements
thereto, the cost of furnishing copies of each preliminary
prospectus, each final prospectus and each amendment or
supplement thereto to underwriters, dealers and the Selling
Shareholders, and the costs and expenses (including fees and
disbursements of counsel, and National Association of Securities
Dealers, Inc. and listing fees) incurred by Sealed Air in
connection with the qualification of the Sealed Air Shares under
the Blue Sky laws of various jurisdictions. Notwithstanding the
above, Sealed Air shall not be required to pay any underwriting
or brokerage discounts, fees or commissions or any fees of
counsel for the Selling Shareholders in connection with the
registration or any sale pursuant to Section 8(b).
(d) Procedures. In the case of each registration or
qualification pursuant to Section 8(b), Sealed Air will keep the
Selling Shareholders advised in writing as to the initiation of
proceedings for such registration and qualification and as to the
completion thereof, and will advise the Selling Shareholders,
upon request, of the progress of such proceedings.
(e) Legend on Certificates. Upon and at any time
during the effectiveness of the Registration Statement, each
Selling Shareholder may deliver the certificates for the Sealed
Air Shares issued to such Selling Shareholder containing the
legend set forth in Section 8(a)(vi), together with a request
that new certificates not bearing such legend and representing
such Sealed Air Shares be issued to such Selling Shareholder in
exchange for such legended certificates. Such request shall set
forth such Selling Shareholder's understanding and agreement that
delivery by Sealed Air of such unlegended certificates shall not
release such Selling Shareholder from his obligations under this
Agreement or any certificate or agreement delivered pursuant
hereto or under the Securities Act. Promptly 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 subject to and as
provided in Section 8(a)(vi). Each Selling Shareholder agrees
that if, at any time after receiving such unlegended
certificates, the Registration Statement is not effective, such
Selling Shareholder will thereafter sell such Sealed Air Shares
in compliance with Rule 144 under the Securities Act, and such
Selling Shareholder 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 Section 8(a)(vi)
may be issued to such Selling Shareholder in exchange therefor.
In the event that after having been advised that the Registration
Statement has ceased to be effective, any Selling Shareholder
makes any disposition of Sealed Air Shares other than in
compliance with Rule 144 under the Securities Act or such other
exemption as may, in the opinion of Sealed Air's counsel, be
available from time to time pursuant to the Securities Act and
applicable state securities laws, such Selling Shareholder will
indemnify and hold harmless Sealed Air, its officers and
directors and any other person who controls Sealed Air within the
meaning of the Securities Act 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 Securities Act or
otherwise as a result of such disposition.
(f) Registration Statement Not Effective In the
event that the Registration Statement shall not have been
declared effective by the US Securities and Exchange Commission
within ninety (90) days after the Closing for any reason other
than the failure of the Selling Shareholders or their attorneys,
accountants or agents to provide information that is required to
be included in the Registration Statement with respect to them,
Sealed Air shall, promptly following demand therefor, cause
Holdings to pay to the Selling Shareholders, the Sealed Air Share
Trust, Griton or the Escrow Agent, as their interests may appear,
an amount in New Zealand Dollars equal to the product of the
number of the Sealed Air Shares delivered at the Closing and the
Average Closing Market Price (expressed in New Zealand Dollars
calculated at the Exchange Rate) against the delivery of the
Sealed Air Shares to or upon the instructions of Sealed Air.
9. General.
(a) Expenses. Whether or not the transactions
contemplated by this Agreement shall become effective, except as
already agreed between the parties, each of Sealed Air, Holdings,
the Company and the Selling Shareholders shall pay their own
expenses incidental to the negotiation and preparation for
Closing of this Agreement, the Related Agreements and the
Ancillary Agreements.
(b) Corporate Examination; Investigations. From time
to time prior to the Closing Date, Sealed Air may, through its
officers, employees, attorneys, accountants, agents and
representatives, investigate the properties and assets, examine
the books, records and financial condition and subject to the
approval of the Selling Shareholders, which shall not be
unreasonably withheld, consult with officers, employees,
attorneys, accountants, agents and representatives (whether or
not currently employed or retained) of the Company and its
Subsidiaries, and with the Company's suppliers, licensees and
customers, to the extent that Sealed Air deems necessary or
advisable to investigate the business or affairs of the Company
and its Subsidiaries or to verify the representations and
warranties of the Selling Shareholders contained in this
Agreement, the Ancillary Agreements and the Related Agreements,
the information contained in other documents and information
provided to Sealed Air by the Selling Shareholders or the Company
and its Subsidiaries, and the compliance by the Company and the
Selling Shareholders with their obligations contained in this
Agreement, the Ancillary Agreements and the Related Agreements.
Such investigation, examination and consultation shall be done at
reasonable times and under reasonable circumstances, and the
Selling Shareholders shall cause the Company and its directors,
officers, employees, independent public accountants, counsel and
other representatives to cooperate fully therewith.
(c) Execution in Counterparts. This Agreement may be
executed in one or more counterparts (including facsimile
copies), each of which shall be deemed an original, but all of
which together shall constitute one and the same document.
(d) 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 recorded
delivery 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 Holdings, to:
Russell McVeagh McKenzie Bartleet & Co
The Shortland Centre
51-53 Shortland Street
Auckland, New Zealand
Attention: John Collings/Ian Narev
Facsimile: (9) 367 8596
If to any Selling Shareholder, to such Selling
Shareholder at the address set forth on Exhibit A
with a copy to:
Bell Gully Buddle Weir
34 Shortland Street
Auckland, New Zealand
Attention: Phil Taylor/Brynn Gilbertson
Facsimile: (9) 309 3312
If to the Company, to:
Trigon Industries Limited
317 Sunset Road, Mairangi Bay
Auckland, New Zealand
Attention: Peter Stanes/Reno Wijnstok
Facsimile No.: (9) 479 1305
If 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.: (201) 703-4205
The address of any party to this Agreement may be changed at any
time by written notice to the other parties to this Agreement.
(e) 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. No waiver by a party
hereto of any breach or default of any provision hereof or of any
condition to the obligations of such party shall be deemed to
constitute a waiver by such party of breach of, default under or
failure to satisfy such provision or condition on a future
occasion or any of its other rights and remedies hereunder or
under applicable law.
(f) 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.
(g) 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.
(h) Governing Law. The execution, validity,
construction and performance of this Agreement shall be governed
by and construed in accordance with the laws of New Zealand,
without giving effect to principles of conflicts of laws. The
courts of New Zealand shall have non-exclusive jurisdiction in
relation to any legal proceedings arising out of the transactions
contemplated by this Agreement.
(i) Captions; Gender; Etc. The captions of this
Agreement are for convenience of reference only and shall not
affect in any manner any of the terms, covenants or conditions
hereof. Words of the masculine gender shall mean and include
correlative words of the feminine and neuter genders and words
importing the singular number shall mean and include the plural
number and vice versa.
(j) Conduct of Business of 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 Sealed Air in the conduct of its
business or, after the Closing, to require Sealed Air to preserve
the corporate existence or separate identity of the Company.
(k) Furnishing of Information. Prior to the Closing,
Sealed Air will afford to the Selling Shareholders, 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 additional publicly available
information (to the extent Sealed Air has such information or can
acquire it without unreasonable effort or expense) that the
Selling Shareholders may reasonably request concerning the Sealed
Air Shares to be issued pursuant to this Agreement.
(l) References to "Best Knowledge". The phrase "to
the best knowledge of the Company or such Selling Shareholder",
when used in this Agreement with respect to a statement,
representation or warranty, means that, at the time such
statement, representation or warranty was made, confirmed or
deemed to have been made or confirmed, the Company or such
Selling Shareholder, as the case may be, had, after reasonable
investigation, reasonable ground to believe and no reasonable
basis not to believe, and did in fact believe, that such
statement, representation or warranty was true and that there was
no omission to state therein a material fact required to be
stated therein in order to make such statement, representation or
warranty not misleading. In determining for this purpose what
constitutes reasonable investigation and reasonable ground for
belief, the standard of reasonableness shall be that required of
a prudent man in the management of his own property.
(m) Announcements. Except as may be required by law
or by the requirements of the New York Stock Exchange no party
shall make, or shall cause or permit the Company or any person,
entity, employee or agent associated with the Company or any
Selling Shareholder to make, any announcement, written or oral,
of or relating to the transactions contemplated by this Agreement
without the prior written approval of the other parties.
(n) Further Assurances and Cooperation. All parties
shall, from time to time at or after the Closing, execute and
deliver such further instruments and documents and take such
further actions as may be necessary or appropriate in order to
vest in Holdings good title to the Outstanding Company Shares or
in order to evidence or facilitate any of the transactions
referred to in this Agreement, any Related Agreement or any
Ancillary Agreement.
(o) Severability. The invalidity or unenforceability
of any one or more provisions of this Agreement shall not affect
the validity or enforceability of the remaining provisions of
this Agreement or any part thereof.
(p) Consents of Holdings and Sealed Air. Any consent
given or waiver of any term, covenant or condition of this
Agreement made, by either Sealed Air or Holdings shall be deemed
to constitute consent given, or waiver made, by the other.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed pursuant to due authorisation as of
the date first above written.
SEALED AIR HOLDINGS (NZ) LIMITED
By WILLIAM V. HICKEY
Name: William V. Hickey
Title: Director
TRIGON INDUSTRIES LIMITED
By JAMES WILLIAM FERGUSON FOREMAN
Name:
Title:
DIANE FOREMAN
Name:
Title:
SEALED AIR CORPORATION
By T. J. DERMOT DUNPHY
Name:
Title:
JAMES WILLIAM FERGUSON FOREMAN
DIANE SHIRLEY FOREMAN
EXHIBIT B
INTELLECTUAL PROPERTY ASSIGNMENT AGREEMENT
AGREEMENT dated as of 9 January 1995 between TRIGON
INDUSTRIES LIMITED, TRIGON PACKAGING SYSTEMS (NZ) LIMITED, and
TRI-ENGLE SYSTEMS LIMITED, corporations organized and existing
under the laws of New Zealand (together "Trigon Companies"), and
SEALED AIR CORPORATION, a Delaware corporation ("Sealed Air").
WITNESSETH:
WHEREAS, the Trigon Companies are the owners of the
trademarks and tradenames and applications for trademarks and
tradenames listed in Annex A to this Agreement (the "Marks"); and
WHEREAS, Sealed Air desires to acquire the Marks from
the Trigon Companies, and the Trigon Companies desire to transfer
and assign to Sealed Air all of the Trigon Companies' rights,
titles and interests in and to the Marks upon and subject to the
terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual
covenants herein contained, and other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Assignment of the Marks. Subject to the terms
and conditions contained in this Agreement, Sealed Air shall
acquire from the Trigon Companies, and the Trigon Companies shall
transfer and assign to Sealed Air, all of the Trigon Companies'
rights, titles and interests in and to the Marks for an aggregate
purchase price of $9,500,000 (NZ) the ("Purchase Price") payable
as provided in Section 2.
2. Payment of the Purchase Price. The Purchase Price
shall be paid on the Closing Date (as defined below) in cash, by
wire transfer to the account of Trigon Industries Limited or by
delivery to Trigon Industries Limited of a bank check against
delivery to Sealed Air of assignments of the Marks and all
relevant certificates of registration in recordable form, duly
executed by the Trigon Companies and acknowledged (collectively,
the "Assignments"). The Purchase Price shall be apportioned
among the Trigon Companies as determined by the Trigon Companies.
Trigon Industries Limited is hereby authorised to receive the
Purchase Price on behalf of all the Trigon Companies, and payment
to Trigon Industries Limited shall be good discharge to Sealed
Air.
3. Closing. The Closing under this Agreement (the
"Closing") shall take place, unless Sealed Air and the Trigon
Companies agree upon another date or place, at the offices of
Bell Gully Buddle Weir, 15th Floor, The Auckland Club Tower, 34
Shortland Street, Auckland 1, New Zealand, at 10:00 A.M., local
time, on a date (the "Closing Date") to be mutually agreed upon
after the conditions set forth in Section 4 shall have been
satisfied, which date shall, unless otherwise agreed, not be
later than 31 March, 1995. The parties each agree to use all
reasonable commercial efforts to cause the conditions set forth
in Section 4 to be satisfied as promptly as practicable.
Notwithstanding the foregoing, in the event that the Closing does
not occur on or before 31 March, 1995 other than by reason of the
default of any of the parties, Sealed Air or the Trigon Companies
may, upon written notice to the other, terminate this Agreement
without liability to any of the other parties hereto.
3. Conditions to Closing.
(a) Conditions to Sealed Air's Obligations. The
obligation of Sealed Air to acquire the Marks hereunder is
subject to the satisfaction, at or before the Closing, of the
conditions that:
(i) Accuracy of Representations and Warranties.
All of the representations and warranties of the Trigon
Companies set forth in this Agreement shall be true and
accurate at the time of the Closing as if made at such
time.
(ii) Execution and Delivery of Assignments. The
Trigon Companies shall have duly executed and delivered
the Assignments and all relevant certificates to Sealed
Air.
(b) Conditions to the Trigon Companies' Obligations.
The obligation of the Trigon Companies to transfer and assign the
Marks hereunder is subject to the tender by Sealed Air, at or
before the Closing, of payment to the Purchase Price.
4. Representations and Warranties of the Trigon
Companies. The Trigon Companies jointly and severally represent
and warrant to Sealed Air that:
(a) Legal Authority. The Trigon Companies have, and
will at the time of Closing have, full legal right, power and
authority to sell, assign and transfer the Marks to Sealed Air.
(b) Ownership and Title. The Marks are, and at the
time of the Closing will be, owned by the Trigon Companies free
and clear of all restrictions on transfer, liens, claims,
equities, security interests, licenses, royalty and similar
agreements and encumbrances of any kind or nature, and the
delivery of the Assignments by the Trigon Companies at the
Closing as contemplated in Section 2 will transfer to Sealed Air
good and marketable title thereto free and clear of all
restrictions on transfer, claims, liens, equities, security
interests, licenses, royalty and similar agreements and
encumbrances of any kind or nature whatsoever. In particular,
without limiting the generality of this clause, the Trigon
Companies shall procure that prior to closing there shall be no
lien over any of the Marks pursuant to any global security
agreement to which the Trigon Companies are parties.
(c) Enforceability. This Agreement is, and upon their
execution and delivery by the Trigon Companies each of the
Assignments will be, the Trigon Companies' legal, valid and
binding obligations, enforceable against the Trigon Companies in
accordance with their respective terms.
(d) Non-Contravention. The execution, delivery and
performance of this Agreement by the Trigon Companies 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, judgment,
decree, statute, ordinance, rule, regulation, proceeding or order
or any other restriction of any kind or character to which any of
the Trigon Companies is a party or by which he or any of his
properties are bound or affected; provided that it will be
necessary to file the Assignments in the relevant Patent and
Trademark Offices of the jurisdictions in which such Marks have
been registered or applications for the registration thereof have
been filed.
(e) No Other Marks. The Marks to be assigned
hereunder constitute, and at the Closing hereunder will
constitute, all of the Trigon Companies' rights, titles, and
interests in and to all trademarks, tradenames and service marks
owned by the Trigon Companies and used or useful in their
business.
(f) Rights of Others. The Marks do not, and are not
likely to, infringe or impair in any way any intellectual
property or other rights of any other party.
(g) No Disputes. There are no disputes or claims
alleged or threatened in respect of any of the Marks.
(h) Recordations. The Assignments, when executed and
delivered by the Trigon Companies, will be in form suitable for
recording in the Patent and Trademark Office of the jurisdictions
in which the Marks are registered or in which registrations of
the Marks have been applied for.
5. Further Assurances. The Trigon Companies shall
execute and deliver such further documents, instruments and
assurances and take such other and further actions as Sealed Air
may reasonably request in order to effectuate the assignments
contemplated hereby and to better establish or evidence Sealed
Air's rights in and to the Marks assigned hereunder. The Trigon
Companies hereby irrevocably appoint Sealed Air as their duly
authorised attorney-in-fact and agent for the purpose, after the
Closing, of executing, filing and recording any further
documents, instruments and assurances and of taking such other
and further actions as may be necessary to effectuate the
assignments contemplated hereby and to better establish or
evidence Sealed Air's rights in and to the Marks assigned
hereunder.
6. Miscellaneous.
(a) Binding Effect. This Agreement shall be binding
upon the respective successors and assigns of the parties hereto.
(b) Governing Law. The execution, validity,
construction and performance of this Agreement shall be governed
by and construed in accordance with the laws of New Zealand,
without giving effect to the principles of conflicts of law. The
courts of New Zealand shall have non-exclusive jurisdiction in
relation to any legal proceedings arising out of the transactions
contemplated by this Agreement.
(c) Captions, Etc. The captions of this Agreement are
for convenience of reference only and shall not affect in any
manner any of the terms, covenants or conditions hereof. Words
of the masculine gender shall mean and include correlative words
of the feminine and neuter genders and words importing the
singular number shall mean and include the plural number and vice
versa.
(d) Counterparts. This Agreement may be executed in
multiple counterparts (including facsimile copies), each of which
shall be deemed an original, but all of which together shall
constitute one and the same document.
(e) References to Trigon Companies. Reference in this
Agreement to the Trigon Companies shall where the context so
requires be construed as references to each of the Trigon
Companies.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed pursuant to due authorisation as of
the date and year first above written.
TRIGON INDUSTRIES LIMITED
By
Name:
Title:
Name:
Title:
TRIGON PACKAGING SYSTEMS (NZ)
LIMITED
By______________________________
Name:
Title:
TRI-ENGLE SYSTEMS LIMITED
By______________________________
Name:
Title:
SEALED AIR CORPORATION
By
Name:William V Hickey
Title:Senior Vice President-
Finance
Annex A
Intellectual Property To Be Assigned
[to be furnished]
EXHIBIT C
TRIGON PACKAGING CORPORATION
SHARE PURCHASE AGREEMENT
AGREEMENT dated as of 9 January, 1995 among SEALED AIR
CORPORATION, a Delaware corporation ("Sealed Air"), and TRIGON
INDUSTRIES LIMITED, a company organized and existing under the
laws of New Zealand ("Trigon").
WITNESSETH:
WHEREAS, TRIGON PACKAGING CORPORATION, a Washington
Corporation ("TPC"), has authorized capitalization of 300,000
shares of preferred non-voting stock and 50,000 shares of common
voting stock, all of which shares of preferred non-voting stock
and 6,000 of which shares of common voting stock are issued and
fully paid ("TPC Capital Stock");
WHEREAS, Trigon owns all of the issued and fully paid
shares of TPC Capital Stock (the "Outstanding TPC Shares");
WHEREAS, on the terms and subject to the conditions set
forth in this Agreement, Trigon has agreed to sell the
Outstanding TPC Shares to Sealed Air, and Sealed Air desires to
purchase all of the Outstanding TPC Shares from Trigon;
NOW, THEREFORE, the parties agree as follows:
1. Purchase and Sale.
(a) Purchase Price. Subject to the terms and
conditions contained in this Agreement, on the Closing Date (as
hereinafter defined), Sealed Air shall purchase from Trigon, and
Trigon shall sell to Sealed Air, the Outstanding TPC Shares,
which shares shall, on the Closing Date, constitute all of the
issued and fully paid shares of TPC Capital Stock, in exchange
for $11,400,000 (US) (the "Purchase Price").
(b) Payment of the Purchase Price. The Purchase Price
shall be paid on the Closing Date in cash, by wire transfer to
the account of Trigon or by delivery to Trigon of a bank check.
2. Closing.
(a) Time and Place of Closing. The Closing under this
Agreement (the "Closing") shall take place, unless Sealed Air and
Trigon agree upon another date or place, at the offices of Bell
Gully Buddle Weir, 15th Floor, The Auckland Club Tower, 34
Shortland Street, Auckland 1, New Zealand, at 10:00 A.M., local
time, on a date (the "Closing Date") to be mutually agreed upon
after the conditions set forth in Section 3 shall have been
satisfied, which date shall, unless otherwise agreed, not be
later than 31 March, 1995. The parties each agree to use all
reasonable commercial efforts to cause the conditions set forth
in Section 3 to be satisfied. Notwithstanding the foregoing, in
the event that the Closing does not occur on or before 31 March,
1995, other than by reason of the default of one of the parties,
either Sealed Air or Trigon may, upon written notice to the
other, terminate this Agreement without liability to any of the
other parties hereto.
(b) Exchange of Stock Certificates; Method of Payment.
At the Closing, subject to the satisfaction on or
before the Closing Date of the conditions set forth in Section 3:
(i) Trigon shall deliver to Sealed Air
certificates for the Outstanding TPC Shares, duly
endorsed for transfer to Sealed Air, which certificates
shall represent all of the then issued and fully paid
shares of TPC Capital Stock; and
(ii) Sealed Air shall deliver to Trigon an amount
in cash equal to the Purchase Price as provided for in
Section 1(b).
(c) Delivery Constitutes Affirmation. The delivery to
Sealed Air pursuant to Section 2(b) of the certificates for the
Outstanding TPC Shares shall constitute an affirmation by Trigon
(i) that the representations and warranties of Trigon contained
in this Agreement are true and accurate on the Closing Date and
(ii) that Trigon has duly performed or caused to be performed all
covenants, conditions and obligations to be performed or
satisfied on or before such date under this Agreement by Trigon
or TPC.
3. Conditions to the Closing.
(a) Conditions to Sealed Air's Obligations. The
obligations of Sealed Air to effect the Closing and to purchase
the Outstanding TPC Shares are subject to the satisfaction, on or
before the Closing Date, of the following conditions:
(i) Due Diligence. Sealed Air shall have
completed a due diligence review of TPC including
without limitation a financial review or audit by KPMG
Peat Marwick of TPC's consolidated financial condition
and tax situation and environmental reviews of the
facilities and operations of TPC and its Subsidiaries,
which reviews and audits shall be satisfactory to
Sealed Air in its sole discretion.
(ii) Accuracy of Representations and Warranties.
The representations and warranties of Trigon contained
in this Agreement shall be true and accurate on the
Closing Date as if made on such date (except as
affected by the transactions contemplated by this
Agreement and except to the extent that any such
representations and warranties have been made as of a
specified date, in which case such representations and
warranties shall have been true and accurate as of such
specified date).
(iii) Performance of Agreements. Trigon shall have
duly performed, and shall have caused TPC to duly
perform, on or before the Closing Date all covenants
and obligations to be performed by them under this
Agreement.
(iv) Opinions of Counsel. Sealed Air shall have
received a written opinion dated the Closing Date in
form and substance reasonably satisfactory to Sealed
Air from Chism Jacobson & Johnson, counsel to Trigon
and TPC, dated the Closing Date as to such matters as
Sealed Air may reasonably request.
(v) Satisfaction of Sealed Air's Counsel. All
legal aspects of the transactions contemplated by this
Agreement shall be accomplished in a manner
satisfactory to Sealed Air's counsel.
(b) Conditions to Trigon's Obligations. The
obligations of Trigon to sell the Outstanding TPC Shares and to
effect the Closing are subject to the satisfaction, on or before
the Closing Date, of the condition that Sealed Air shall have
duly performed all covenants and obligations to be performed by
it under this Agreement on or before the Closing Date.
(c) Other Conditions to the Closing. The obligations
of the parties to consummate the Closing shall be subject to the
satisfaction, on or before the Closing Date, of the following
conditions (any of which may be waived in whole or in part with
the mutual consent of Sealed Air and Trigon):
(i) Corporate Approvals. Sealed Air's Board of
Directors shall have approved the transactions
contemplated by this Agreement, and Trigon shall have
obtained all corporate approvals necessary to
consummate the transactions contemplated by this
Agreement.
(ii) Consents of Third Parties. Each of the
parties shall have obtained such consents from third
parties as shall be required in order to permit them to
perform their obligations under this Agreement.
(iii) Permits and Approvals. All permits and
approvals from any governmental agency or regulatory
authority required for the lawful consummation of the
transactions contemplated by this Agreement shall have
been obtained and shall remain in full force and
effect, and any applicable waiting period under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended, shall have expired.
(iv) Litigation, Etc. No legal proceeding shall
be pending or overtly threatened, or any basis for such
a proceeding asserted, before any court or by any
governmental agency or regulatory authority of any
jurisdiction directed against the consummation of any
of the transactions contemplated by this Agreement
which, in the reasonable opinion of Sealed Air and
Trigon, makes it impracticable or inadvisable to
proceed with the transactions contemplated by this
Agreement.
(v) Consents of Contracting Parties. Undertakings
shall have been obtained from all persons who are
parties to any contract, commitment or arrangement with
TPC which is material to TPC's business, and who would
have the right to cancel, terminate earlier than would
otherwise have been the case or adversely modify such
contract, commitment or arrangement as a result of any
of the transactions contemplated by this agreement,
that they will not exercise such right.
4. Representations, Warranties and Covenants of
Trigon. Trigon represents and warrants to and covenants with
Sealed Air as follows:
(a) Legal Authority. Trigon has the full legal right,
power and authority to sell, assign and transfer the Outstanding
TPC Shares.
(b) Ownership and Title. The Outstanding TPC Shares
are, and at the time of their transfer to Sealed Air will be,
free and clear of all restrictions on transfer, liens, claims,
equities, security interests and encumbrances of any kind or
nature whatsoever, and delivery of such shares to Sealed Air as
provided in Section 2(b) will transfer to Sealed Air 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) Enforceability. This Agreement is Trigon's legal,
valid and binding obligation, enforceable against Trigon in
accordance with its terms.
(d) Non-Contravention. The execution, delivery and
performance of this Agreement by Trigon 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, judgment, decree, statute,
ordinance, rule, regulation, proceeding or order or any other
restriction of any kind or character to which Trigon is a party
or by which Trigon is bound or affected.
(e) Organization, Standing, Etc. TPC is a duly
incorporated, validly existing corporation in good standing under
the laws of the State of Washington 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. TPC is qualified to transact business as a foreign
corporation in each jurisdiction in which it owns, leases or
operates any real property and in each other jurisdiction in
which the failure to so qualify could have any material adverse
effect on the business, properties or condition, financial or
otherwise, of TPC.
(f) Capitalization. TPC has an authorized
capitalization of 300,000 shares of preferred non-voting stock
and 50,000 shares of common voting stock all of which shares of
preferred non-voting stock and 6,000 of which shares of common
voting stock are issued and fully paid with no personal liability
attaching to the ownership thereof. No shares of TPC Capital
Stock are held in treasury. The outstanding shares of TPC
Capital Stock are free of any pledge, charge, security or claim
of any third party whatsoever.
(g) Charter Documents. Trigon has delivered to Sealed
Air and Sealed Air a true, correct and complete copy of the
charter documents (including all amendments thereto) of TPC and
any Subsidiary (as defined below). No action or proceeding is
pending or contemplated for the amendment of the charter
documents of TPC or any of its Subsidiaries or for the
dissolution or liquidation of TPC or any of its Subsidiaries.
(h) Outstanding Options, Warrants or Other Rights.
There are no outstanding options, warrants or other rights
permitting or requiring Trigon or others to purchase or convert
any obligation into shares of TPC Capital Stock, TPC has not
agreed to issue, nor has it authorized the issuance of, any
shares of TPC Capital Stock, and there are no undertakings or
commitments to increase the capital stock of TPC. There are no
voting trusts or other agreements or understandings with respect
to the voting or transfer of shares of TPC Capital Stock and
shares of TPC Capital Stock are not subject to any pre-emptive
rights, rights of first refusal or similar rights.
(i) Subsidiaries. Trigon has provided to Sealed Air
in writing a correct and complete list setting forth (i) the name
and jurisdiction of incorporation of each Subsidiary of TPC, (ii)
the number of shares of each class of capital stock of each such
Subsidiary authorized, issued and outstanding, and (iii) the
number of shares of each class of capital stock of each
Subsidiary owned by Trigon. All of the outstanding shares of
capital stock of each such Subsidiary are validly issued, fully
paid and non-assessable with no personal liability attaching to
the ownership thereof. Except as disclosed by Trigon to Sealed
Air in writing prior to the date of this Agreement, no shares of
capital stock of any Subsidiary of TPC are held in the treasury
of such Subsidiary. TPC has valid legal title to all of the
outstanding shares of capital stock of each Subsidiary shown on
such list as being owned by it, and such shares are owned by TPC
free and clear of all restrictions on transfer, liens, claims,
equities, encumbrances or security interests of any kind or
nature whatsoever. There are no voting trusts or other
agreements or understandings with respect to the voting or
transfer of the capital stock of any Subsidiary, and there are no
existing pre-emptive rights, rights of first refusal, options,
warrants, calls or commitments of any character relating to any
of the authorized or issued shares of capital stock of any
Subsidiary. The Subsidiaries listed in such list are the only
Subsidiaries of TPC, and each such Subsidiary is a corporation
duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation, has all requisite
corporate power and authority to own, lease and operate its
properties and to carry on its business as now being conducted or
proposed by it to be conducted and is duly qualified and in good
standing in each jurisdiction in which it owns, leases or
operates real property and in each other jurisdiction in which
the failure to so qualify could have any material adverse impact
on the business, properties or condition, financial or otherwise,
of TPC and such Subsidiary taken as a whole. Trigon has provided
to Sealed Air in writing a correct and complete list of each
jurisdiction in which each such Subsidiary is so qualified. For
purposes of this Agreement, the term "Subsidiary" means any
corporation or other business entity in which TPC or any other
Subsidiary, directly or indirectly, owns or has the ability to
control 50% or more of the equity interest.
(j) Record Ownership. Trigon is the registered holder
and beneficial owner of all of the outstanding shares of TPC
Capital Stock.
(k) Financial Statements. Trigon has delivered to
Sealed Air (i) audited consolidated financial statements of TPC
including any related notes thereto and any reports thereon for
each of the five fiscal years ended June 30, 1994, and (ii)
unaudited consolidated financial statements of TPC for the fiscal
period ended September 30, 1994. Except as has been disclosed to
Sealed Air and Sealed Air in writing, such financial statements
have been prepared in accordance with generally accepted
accounting principles consistently applied and fairly present the
financial position, income and changes in consolidated financial
position of TPC 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 TPC 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 the respective dates of such financial statements TPC and
its Subsidiaries had no obligations or liabilities of any nature
not reflected in and adequately reserved against on such balance
sheets as required by generally accepted accounting principles
consistently applied to be so reflected or reserved against. To
the best of the knowledge of Trigon, there is no basis for the
assertion against TPC and its Subsidiaries of any material
liability or obligation not adequately reflected in or reserved
against in such financial statements.
(l) Certain Changes or Events. Since June 30, 1994,
neither TPC nor any of its Subsidiaries 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;
(ii) declared, 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;
(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 additional Indebtedness for
borrowed money, except pursuant to lines of credit
existing at June 30, 1994, or issued or sold any debt
securities;
(v) mortgaged, pledged or subjected to any lien,
lease, security interest or other charge or
encumbrance, or granted any option with respect to any
of its properties or assets, tangible or intangible;
(vi) acquired or disposed of any assets or
properties of material value;
(vii) forgiven or cancelled any debts or claims or
waived any material rights;
(viii) entered into any material transaction other
than in the ordinary course of business;
(ix) granted to any 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 June 30, 1994 (other than
normal periodic salary reviews in amounts consistent
with past practices) or any severance or termination
pay (other than in minor amounts consistent with past
practices), or entered into any written employment
agreement or arrangement with any person;
(x) entered into, adopted or amended in any
respect any collective bargaining agreement or adopted
or amended any fringe benefit, bonus, profit-sharing,
compensation, stock option, pension, retirement,
deferred compensation, insurance or other similar plan,
agreement, trust, fund or arrangement for the benefit
of employees (whether or not legally binding);
(xi) suffered any damage, destruction or loss
(whether or not covered by insurance) which materially
and adversely affects or could materially and adversely
affect its condition (financial or otherwise),
properties, assets, business, operations or prospects
envisioned by it;
(xii) suffered any loss of employees or customers
that materially and adversely affects or could
materially and adversely affect it; or
(xiii) incurred any material liability or obligation
(fixed or contingent) except (A) liabilities and
obligations in the ordinary course of business and (B)
other liabilities and obligations not exceeding
$250,000 (NZ) in the aggregate.
(m) Title to Properties; Liens. Each of TPC and its
Subsidiaries has good and marketable title to, or valid and
subsisting leasehold interests in, all of its 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 TPC
and its Subsidiaries as now 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
disclosed by Trigon to Sealed Air in writing prior to the date of
this Agreement, 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 TPC
and its Subsidiaries, and each of TPC and its Subsidiaries is in
exclusive and undisputed occupation of the whole of its real
properties. There is not under any lease of real or personal
property to which TPC and its Subsidiaries 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, nor is there
any actual or contingent liability under any lease of real or
personal property except for such liabilities as have been
disclosed by Trigon to Sealed Air in writing. Trigon has
provided to Sealed Air in writing a true and complete list and
brief description of all real and material personal properties
owned or leased by TPC or its Subsidiaries, 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 Trigon 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 and other laws and regulations
relating to the discharge of materials into the environment and
to the disposal of solid, toxic, hazardous and other wastes),
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 TPC or its Subsidiaries.
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 TPC and its Subsidiaries in the conduct of their business are
in good operating condition and repair. Neither TPC nor its
Subsidiaries has, since deduction of title to Sealed Air's
solicitors, entered into any transaction affecting the title to
any of the real properties owned by TPC or its Subsidiaries.
(n) Patents and Other Rights. Except as disclosed by
Trigon to Sealed Air in writing prior to the date of this
Agreement, there are no:
(i) patents, patent applications, inventions as
to which either TPC or its Subsidiaries has 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
TPC or its Subsidiaries or (B) owned by or otherwise
held in the name of third parties in which TPC or its
Subsidiaries has any interest by license or otherwise;
or
(ii) licenses, assignments and agreements to which
TPC or its Subsidiaries 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
TPC or its Subsidiaries.
To the best of the knowledge of Trigon, neither TPC nor its
Subsidiaries has infringed, 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 TPC or its Subsidiaries, and there is
no basis nor would there be any basis for the assertion of any
claim against TPC or its Subsidiaries of such infringement,
unauthorized use or misappropriation. There is no pending or
threatened claim of such nature against TPC or its Subsidiaries.
There are no items of the type described in clauses (i) and (ii)
that are required or are being used to carry on the business of
TPC or its Subsidiaries substantially as now conducted.
(o) Litigation, Etc. Except as disclosed by Trigon to
Sealed Air in writing prior to the date of this Agreement, there
are no actions, suits, proceedings or investigations pending or,
to the best of the knowledge of Trigon, threatened against or
affecting TPC or its Subsidiaries, at law or in equity, before
any court, commission, board, bureau, agency, instrumentality or
other governmental authority. To the best of the knowledge of
Trigon, there are no claims that have not been asserted against
TPC or its Subsidiaries that are probable of assertion.
(p) Governmental Consents, Etc. Except for such as
are disclosed in this Agreement or have been disclosed by Trigon
to Sealed Air in writing prior to the date of this Agreement, all
of which will be obtained on or before the Closing Date, neither
Trigon, TPC nor any of their Subsidiaries is required to obtain
any consent, approval or authorisation 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.
(q) Disclosure. Neither this Agreement, nor the
financial statements referred to in Section 4(k), nor any other
document, certificate, schedule or written statement furnished to
Sealed Air or Sealed Air by or on behalf of TPC, its Subsidiaries
or Trigon 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 known or which in the exercise
of reasonable care should be known by Trigon to be necessary in
order to make the statements contained herein or therein not
misleading.
(r) Compliance With Other Instruments, Etc. Except
for the consents disclosed by Trigon to Sealed Air in writing
prior to the date of this Agreement, which consents will be
obtained prior to the Closing, the execution, delivery and
performance of this Agreement by Trigon and the performance by
TPC and its Subsidiaries of the obligations that Trigon has
agreed hereunder to cause them to perform under this Agreement
will not conflict with, result in any breach of, or constitute a
default under or cause the acceleration of, or require any
permit, approval, consent or other action by any other person
pursuant to any provision of any charter, bylaw, mortgage,
indenture, lien, license, permit, lease, option or other material
agreement or instrument, judgment, decree, ordinance, regulation,
proceeding or order or any other restriction of any other kind or
character to which TPC or its Subsidiaries is a party or by which
TPC or its Subsidiaries or any of their respective properties may
be bound or affected.
(s) Compliance With Law. Each of TPC and its
Subsidiaries holds all registrations, licenses, franchises,
permits and authorisations necessary for the lawful conduct of
its business and has conducted its business so as to comply, and
to the best knowledge of Trigon has complied and is 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 agencies or other bodies with jurisdiction
over it or over any part of its operations and is not in
violation of any thereof, except for such registrations,
licenses, franchises, permits and authorisations, the lack of
which, and for such statutes, laws, ordinances, rules and
regulations, non-compliance with or violations of which (or the
curing thereof), in any one case or in the aggregate, would not
have a materially adverse effect on the assets, liabilities,
earnings, business, prospects or condition (financial or
otherwise) of TPC or its Subsidiaries or impair Trigon s ability
or the ability of TPC or its Subsidiaries to consummate the
transactions contemplated by this Agreement.
(t) Existing Contracts. All material contracts,
agreements, leases, licenses and understandings to which TPC or
its Subsidiaries is a party (true, correct and complete copies of
which have been delivered or made available to 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 TPC or its Subsidiaries or, to the
best of the knowledge of Trigon, the other parties thereto.
Except as disclosed by Trigon to Sealed Air in writing prior to
the date of this Agreement, neither TPC nor its Subsidiaries is a
party to nor does it have 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 may not be cancelled by it on less than 90 days
notice, (vi) contract for the purchase or provision of goods or
services by TPC or its Subsidiaries for an aggregate price in
excess of $250,000 (NZ) per contract, (vii) contract or
commitment for capital expenditures in excess of $250,000 (NZ) in
the aggregate, (viii) contract continuing over a period of more
than one year from its date, (ix) mortgage, loan or credit
agreement, (x) contract requiring consent to the transactions
contemplated by this Agreement, (xi) contract to act as an agent
of any person, (xii) guarantee of the obligations of any other
person, (xiii) contract for the distribution, sale or marketing
of its products by others, or (xiv) any other material contract,
agreement or understanding, written or oral, affecting TPC or its
Subsidiaries whether or not TPC or its Subsidiaries is a party
thereto.
(u) Taxes, Etc. TPC and each of its Subsidiaries has
filed or will file within the time prescribed by law (including
extensions of time approved by the appropriate taxing authority)
all tax and information returns and reports required to be filed
with the United States of America and with each state, local or
other taxing jurisdiction in which TPC or any of its Subsidiaries
is incorporated, transacts business or owns, leases or operates
property (real or personal), or in which the failure to file such
returns or pay taxes could have any materially adverse impact on
the business, properties or condition, financial or otherwise, of
TPC or any of its Subsidiaries, and with all governmental units
thereof, and has paid in full or made adequate provision for the
payment of all taxes, interest, penalties, assessments or
deficiencies shown to be due or claimed to be due on or in
respect of such tax and information returns and reports. There
is and will be no omission, deficiency, error, misstatement or
misrepresentation in any tax or information return or report
filed for any year or period ending on or prior to the Closing
Date. True and complete copies of all such tax and information
returns and reports and related documents have been made
available, and when requested have been furnished, to Sealed Air.
Neither TPC nor any of its Subsidiaries has consented to the
extension of time in respect of any applicable statute of
limitations in connection with the filing of tax and information
returns and reports of the payment of taxes to the appropriate
taxing authority nor has any of them received any notice of any
failure to file a tax or information return or report claimed to
be required to be filed that has not been filed. The financial
statements of TPC contain adequate provision for all income,
franchise, real property, personal property, value added and all
other taxes of TPC and each of its Subsidiaries, including
interest and penalties in respect thereof, required to have been
accrued or for which TPC or any of its Subsidiaries may be liable
as of the respective dates thereof. Neither TPC nor any of its
Subsidiaries is the subject of any pending or threatened tax
examination nor are a party to any proceeding or inquiry by any
governmental authority for the assessment or the proposed
assessment or for the collection of taxes, or interest or
penalties with respect thereto, nor has any claim for the
assessment or proposed assessment or for the collection of taxes,
or interest or penalties with respect thereto, been asserted
against the Company or any of its Subsidiaries. There are no
liens for taxes that are due and unpaid on any of the properties
or assets of the Company or any of its Subsidiaries. The United
States Federal income tax returns of TPC have not been audited by
the United States Internal Revenue Service for any fiscal years
of the Company ended on or after June 30, 1990, which are the
only fiscal years which are open and subject to audit or for
which the statutes of limitations for claims for tax deficiencies
have not yet expired. The results of all prior audits by the
Internal Revenue Service are properly reflected in the foregoing
financial statements and any deficiencies proposed or assessed
have been paid.
(v) Insurance. Trigon has provided to Sealed Air in
writing a true and complete list and a brief description of all
insurance policies currently in force with respect to the
business and assets of TPC or its Subsidiaries together with the
premiums currently paid thereon. Each of TPC and its
Subsidiaries is in compliance with all of the provisions of such
insurance policies and is 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.
(w) Employee Benefits.
(i) Trigon has provided to Sealed Air in writing
a true and complete list of all employee benefit and
welfare plans of, or other fringe benefits provided by,
TPC or its Subsidiaries, including pension, profit-
sharing, thrift, savings, bonus, retirement, vacation,
life insurance, health insurance, sickness, disability,
and death benefit plans.
(ii) TPC has not and does not maintain or
contribute to, and has not participated in or agreed to
participate in, or otherwise become obligated with
respect to, any Multi-Employer Plan as defined in
Section 4001(a)(3) of the Employee Income Security Act
of 1974, as amended, 29 U.S.C. 1001 et. seq. ("ERISA").
(iii) TPC has no liability for providing retiree
life and medical benefits coverage to TPC's active or
retired employees.
(iv) TPC neither maintains nor contributes to, nor
has it (or any person or entity under "common control"
with TPC, as "common control" is defined in ERISA)
heretofore maintained or contributed to, any "employee
pension benefit plan" as defined in Section 3(2) of
ERISA in which any employee of TPC participates or is
eligible to participate except for TPC's 401(k) plan,
as amended (the "401(k) Plan"). TPC has delivered to
Sealed Air true copies of all Welfare Plans and of the
401(k) Plan or summaries thereof requested by Sealed
Air, and all of such Welfare Plans and the 401(k) Plan
and the administration thereof comply in all material
respects with the requirements of ERISA and all other
laws and regulations applicable thereto, and TPC has
received no notice from any governmental authority of
any failure to so comply which failure has not been
cured. All reports and returns with respect to the
Welfare Plans and the 401(k) Plan required to be filed
with any governmental authority, the failure to so
timely file which could have an adverse effect on TPC
have been timely filed. No "prohibited transaction",
as defined in Section 406 of ERISA or Section 4975 of
the Internal Revenue Code of 1986, as amended (the
"Code"), has occurred with respect to the 401(k) Plan
or any other employee benefit plan or arrangement
contributed to by TPC or any affiliate which is covered
by Title I of ERISA, excluding transactions effected
pursuant to a statutory or administrative exemption.
The 401(k) Plan is qualified under Section 401(a) of
the Code and has been so qualified during the period
since its adoption, and each trust forming a part
thereof is exempt from tax pursuant to Section 401(a)
of the Code. TPC has furnished or will upon request
furnish to Sealed Air copies of the most recent
Internal Revenue Service determination letters with
respect to the 401(k) Plan. All amendments required to
be made in order to bring such Plan into compliance
with the requirements of the Tax Reform Act of 1986 and
subsequent legislation have been duly and timely made
or will be made within the time permitted by Section
401(b) of the Code. Such Plan has been maintained in
compliance with its terms and with the requirements
prescribed by any and all statutes, orders, rules and
regulations, including but not limited to ERISA and the
Code, which are applicable to such Plan.
(x) Miscellaneous.
(i) Trigon has provided to Sealed Air in writing
a true and complete list of the names and current
emoluments of all managerial employees of each of TPC
and its Subsidiaries.
(ii) Trigon has provided to Sealed Air in writing
a true and complete list of (A) each bank and safety
deposit facility in which TPC or its Subsidiaries 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 TPC nor its Subsidiaries has, since
June 30, 1994, permitted any option to renew any
material lease or any material option to purchase any
property to expire unexercised, in whole or in part.
(iv) Trigon has provided to Sealed Air in writing
a true and complete list of all outstanding powers of
attorney granted by TPC or its Subsidiaries 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 disclosed by Trigon to Sealed Air
in writing prior to the date of this Agreement, neither
TPC nor its Subsidiaries has any obligation or
liability, either actual, accrued, accruing or
contingent, as guarantor, surety, cosigner, 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.
5. Certain Agreements.
(a) Conduct of Business of TPC and its Subsidiaries
Prior to the Closing, etc. Prior to the Closing, except as
contemplated by this Agreement or as may be expressly approved in
writing by Sealed Air, Trigon:
(i) will cause each of TPC and its Subsidiaries
to operate its business only in the usual, regular and
ordinary manner;
(ii) will cause each of TPC and its Subsidiaries
to maintain all of its properties in customary repair,
order and condition and to maintain adequate insurance
upon all of its properties, at least in such amounts
and of such kinds comparable to that in effect on the
date of this Agreement;
(iii) will cause each of TPC and its Subsidiaries
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 it and to the conduct of its
business;
(iv) will not permit any amendment to be made in
the charter documents of TPC or its Subsidiaries or
permit TPC or its Subsidiaries 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) except with respect to its Subsidiaries as
contemplated by this Agreement, will not permit any
change to be made in the number of shares of TPC
Capital Stock or its Subsidiaries' Capital Stock issued
and outstanding or any option, warrant or any other
right to purchase of to convert any obligation into
shares of TPC Capital Stock or its Subsidiaries'
Capital Stock to be granted or made by TPC or its
Subsidiaries;
(vi) will not permit (A) any dividend or other
distribution or payment to be declared, paid or made by
TPC or its Subsidiaries in respect of its capital stock
or (B) any purchase, redemption or other acquisition of
any outstanding shares of its capital stock;
(vii) will not permit TPC or its Subsidiaries to
encumber or mortgage any of their 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 Trigon permit TPC
or its Subsidiaries to incur any obligation (contingent
or otherwise) other than in the ordinary course of
business or to transfer, convey or acquire any material
assets or property, or to enter into any arrangement,
agreement or undertaking (including, without
limitation, employment agreements with executives), or
to pay or promise to pay any bonus or special
compensation to employees, except in accordance with
existing employment agreements, or to modify, amend or
terminate any bonus, pension, profit-sharing,
compensation, insurance or other similar plan,
agreement, trust, fund or arrangement for the benefit
of employees;
(viii) will promptly take, and shall cause each
of TPC and its Subsidiaries to take, such actions as
shall be necessary to satisfy the conditions set forth
in Section 3 requiring action on the part of Trigon or
on the part of TPC or its Subsidiaries; 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 and
Sealed Air, neither Trigon, TPC nor its Subsidiaries
shall solicit inquiries or proposals or participate in
any negotiations concerning, or provide any person with
any information in connection with, any acquisition or
purchase by merger, consolidation, sale of stock or
assets or otherwise of all or substantially all of the
assets or capital stock of TPC or its Subsidiaries, and
Trigon will notify Sealed Air 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 Closing, Trigon shall cause the
minute books and corporate records of TPC and its
Subsidiaries 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 Trigon that such minute books and corporate
records are true, correct and complete.
(ii) Upon the Closing Date, such of the directors
of each of TPC and its Subsidiaries as Sealed Air shall
request shall resign and be replaced by designees of
Sealed Air.
6. General.
(a) 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.
(b) Corporate Examination; Investigations. From time
to time prior to the Closing Date, 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 TPC and its Subsidiaries to the extent that Sealed Air deems
necessary or advisable to investigate the business or affairs of
TPC and its Subsidiaries. Sealed Air agrees that, unless and
until the Closing has been consummated, they 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, they will
return to Trigon or to TPC or its Subsidiaries all such data and
information as Trigon shall reasonably request.
(c) Execution in Counterparts. This Agreement may be
executed in one or more counterparts (including facsimile
copies), each of which shall be deemed an original, but all of
which together shall constitute one and the same document.
(d) 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 recorded
delivery mail, return receipt requested, and any such notice
shall become effective when delivered in person, received by
facsimile or when deposited in the mails, to be sent via air
mail, postage prepaid, addressed as follows:
If to Sealed Air, to:
Sealed Air Corporation
Park 80 East
Saddle Brook, New Jersey 07663
Attention: William V. Hickey
Senior Vice President-Finance
Facsimile No.: (201) 703-4113
If to Trigon, to:
Trigon Industries Limited
317 Sunset Road, Mairangi Bay
Auckland, New Zealand
Attention: Peter Stanes/Reno Wijnstok
Facsimile No. (09) 479 1305
The address of any party to this Agreement may be changed at any
time by written notice to the other parties to this Agreement.
(e) 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.
(f) 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.
(g) 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.
(h) Governing Law. The execution, validity,
construction and performance of this Agreement shall be governed
by and construed in accordance with the laws of the State of New
York, United States of America, without giving effect to the
principles of conflicts of law.
(i) Captions; Gender; Etc. The captions of this
Agreement are for convenience of reference only and shall not
affect in any manner any of the terms, covenants or conditions
hereof. Words of the masculine gender shall mean and include
correlative words of the feminine and neuter genders and words
importing the singular number shall mean and include the plural
number and vice versa.
(j) Conduct of Business of 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 Sealed Air or Sealed Air in the conduct
of their businesses.
(k) References to Best Knowledge. The phrase "to the
best knowledge of Trigon" or phrases of similar import, when used
in this Agreement with respect to a statement, representation or
warranty, means that, at the time such statement, representation
or warranty was made, confirmed or deemed to have been made or
confirmed, Trigon had, after reasonable investigation, reasonable
ground to believe and no reasonable basis not to believe, and did
in fact believe, that such statement, representation or warranty
was true and that there was no omission to state therein a
material fact required to be stated therein in order to make such
statement, representation or warranty not misleading. In
determining for this purpose what constitutes reasonable
investigation and reasonable ground for belief, the standard of
reasonableness shall be that required of a prudent man in the
management of his own property.
<PAGE>
IN WITNESS WHEREOF, the parties have duly executed
this Agreement as a deed as of the date first set forth above.
TRIGON INDUSTRIES LIMITED
By _____________________________
Name:
Title:
_____________________________
Name:
Title:
SEALED AIR CORPORATION
By
Name: William V Hickey
Title: Senior Vice President
- Finance
EXHIBIT D
TRIGON PACKAGING SYSTEMS (EUROPE) LIMITED
SHARE PURCHASE AGREEMENT
AGREEMENT dated as of 9 January, 1995 among SEALED AIR
LIMITED, a company incorporated under the laws of England
("SAL"), TRIGON INDUSTRIES LIMITED, a company organized and
existing under the laws of New Zealand ("Trigon"), and SEALED AIR
CORPORATION, a Delaware corporation ("Sealed Air").
WITNESSETH:
WHEREAS, TRIGON PACKAGING SYSTEMS (EUROPE) LIMITED, a
company incorporated under the laws of England ("TPSE"), with its
registered office at Stafford Park, 9 Telford, Shropshire TF33B2,
England, has authorized capitalization of 575,000 ordinary
shares, with a nominal value of 1 pound each ("TPSE Capital
Stock"), all of which shares are issued and fully paid;
WHEREAS, Trigon owns all of the issued and fully paid
shares of TPSE Capital Stock (the "Fully Paid TPSE Shares");
WHEREAS, on the terms and subject to the conditions set
forth in this Agreement, Trigon has agreed to sell the Fully Paid
TPSE Shares to SAL, and SAL desires to purchase all of the Fully
Paid TPSE Shares from Trigon;
NOW, THEREFORE, the parties agree as follows:
1. Purchase and Sale.
(a) Purchase Price. Subject to the terms and
conditions contained in this Agreement, on the Closing Date (as
hereinafter defined), SAL shall purchase from Trigon, and Trigon
shall sell to SAL, the Fully Paid TPSE Shares, which shares
shall, on the Closing Date, constitute all of the issued and
fully paid shares of TPSE Capital Stock, in exchange for
$11,000,000 (NZ) (the "Purchase Price").
(b) Payment of the Purchase Price. The Purchase Price
shall be paid on the Closing Date in cash, by wire transfer to
the account of Trigon or by delivery to Trigon of a bank check.
2. Closing.
(a) Time and Place of Closing. The Closing under
this Agreement (the "Closing") shall take place, unless SAL,
Sealed Air and Trigon agree upon another date or place, at the
offices of Bell Gully Buddle Weir, 15th Floor, The Auckland Club
Tower, 34 Shortland Street, Auckland 1, New Zealand, at 10:00
A.M., local time, on a date (the "Closing Date") to be mutually
agreed upon after the conditions set forth in Section 3 shall
have been satisfied, which date shall be, unless otherwise
agreed, not be later than 31 March, 1995. The parties each agree
to use all reasonable commercial efforts to cause the conditions
set forth in Section 3 to be satisfied. Notwithstanding the
foregoing, in the event that the Closing does not occur on or
before 31 March, 1995 other than by reason of default of either
of the parties, either SAL or Trigon may, upon written notice to
the other, terminate this Agreement without liability to any of
the other parties hereto.
(b) Exchange of Stock Certificates; Method of Payment.
At the Closing, subject to the satisfaction on or
before the Closing Date of the conditions set forth in Section 3:
(i) Trigon shall deliver to SAL certificates for
the Fully Paid TPSE Shares, duly endorsed for transfer
to SAL, which certificates shall represent all of the
then issued and fully paid shares of TPSE Capital
Stock; and
(ii) SAL shall deliver to Trigon an amount in
cash equal to the Purchase Price as provided for in
Section 1(b).
(c) Delivery Constitutes Affirmation. The delivery to
SAL pursuant to Section 2(b) of the certificates for the Fully
Paid TPSE Shares shall constitute an affirmation by Trigon (i)
that the representations and warranties of Trigon contained in
this Agreement are true and accurate on the Closing Date and (ii)
that Trigon has duly performed or caused to be performed all
covenants, conditions and obligations to be performed or
satisfied on or before such date under this Agreement by Trigon
or TPSE.
3. Conditions to the Closing.
(a) Conditions to Sealed Air's and SAL's Obligations.
The obligations of SAL to effect the Closing and to purchase the
Fully Paid TPSE Shares are subject to the satisfaction, on or
before the Closing Date, of the following conditions:
(i) Due Diligence. Sealed Air shall have
completed a due diligence review of TPSE and its
Subsidiaries including without limitation a financial
review or audit by KPMG Peat Marwick of TPSE's
consolidated financial condition and tax situation and
environmental reviews of the facilities and operations
of TPC and its Subsidiaries, which reviews and audits
shall be satisfactory to Sealed Air in its sole
discretion.
(ii) Accuracy of Representations and Warranties.
The representations and warranties of Trigon contained
in this Agreement shall be true and accurate on the
Closing Date as if made on such date (except as
affected by the transactions contemplated by this
Agreement and except to the extent that any such
representations and warranties have been made as of a
specified date, in which case such representations and
warranties shall have been true and accurate as of such
specified date).
(iii) Performance of Agreements. Trigon shall have
duly performed, and shall have caused TPSE to duly
perform, on or before the Closing Date all covenants
and obligations to be performed by them under this
Agreement.
(iv) Opinions of Counsel. Sealed Air and SAL
shall have received a written opinion dated the Closing
Date in form and substance reasonably satisfactory to
Sealed Air from Messrs. Simmons & Simmons, solicitors
for Trigon and TPSE, dated the Closing Date as to such
matters as Sealed Air may reasonably request.
(v) Satisfaction of Sealed Air's Counsel. All
legal aspects of the transactions contemplated by this
Agreement shall be accomplished in a manner
satisfactory to Sealed Air's counsel.
(b) Conditions to Trigon's Obligations. The
obligations of Trigon to sell the Fully Paid TPSE Shares and to
effect the Closing are subject to the satisfaction, on or before
the Closing Date, of the condition that SAL and Sealed Air shall
have duly performed all covenants and obligations to be performed
by them under this Agreement on or before the Closing Date.
(c) Other Conditions to the Closing. The obligations
of the parties to consummate the Closing shall be subject to the
satisfaction, on or before the Closing Date, of the following
conditions (any of which may be waived in whole or in part with
the mutual consent of SAL, Sealed Air and Trigon):
(i) Corporate Approvals. The Boards of Directors
of Sealed Air and SAL shall have approved the
transactions contemplated by this Agreement, and Trigon
shall have obtained all corporate approvals necessary
to consummate the transactions contemplated by this
Agreement.
(ii) Consents of Third Parties. Each of the
parties shall have obtained such consents from third
parties as shall be required in order to permit them to
perform their obligations under this Agreement.
(iii) Permits and Approvals. All permits and
approvals from any governmental agency or regulatory
authority required for the lawful consummation of the
transactions contemplated by this Agreement shall have
been obtained and shall remain in full force and
effect.
(iv) Litigation, Etc. No legal proceeding shall
be pending or overtly threatened, or any basis for such
a proceeding asserted, before any court or by any
governmental agency or regulatory authority of any
jurisdiction directed against the consummation of any
of the transactions contemplated by this Agreement
which, in the reasonable opinion of Sealed Air, SAL and
Trigon, makes it impracticable or inadvisable to
proceed with the transactions contemplated by this
Agreement.
(v) Consents of Contracting Parties.
Undertakings shall have been obtained from all persons
who are parties to any contract, commitment or
arrangement with TPSE or any of its Subsidiaries which
is material to TPSE's business, and who would have the
right to cancel, terminate earlier than would otherwise
have been the case or adversely modify such contract,
commitment or arrangement as a result of any of the
transactions contemplated by this agreement, that they
will not exercise such right.
4. Representations, Warranties and Covenants of
Trigon. Trigon represents and warrants to and covenants with SAL
and Sealed Air as follows:
(a) Legal Authority. Trigon has the full legal right,
power and authority to sell, assign and transfer the Fully Paid
TPSE Shares.
(b) Title. The Fully Paid TPSE Shares are, and at the
time of their transfer to SAL will be, free and clear of all
restrictions on transfer, liens, claims, equities, security
interests and encumbrances of any kind or nature whatsoever, and
delivery of such shares to SAL as provided in Section 2(b) will
transfer to SAL 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) Enforceability. This Agreement is Trigon's legal,
valid and binding obligation, enforceable against Trigon in
accordance with its terms.
(d) Non-Contravention. The execution, delivery and
performance of this Agreement by Trigon 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, judgment, decree, statute,
ordinance, rule, regulation, proceeding or order or any other
restriction of any kind or character to which Trigon is a party
or by which Trigon is bound or affected.
(e) Organization, Standing, Etc. TPSE is a company in
good standing incorporated under the laws of England 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.
(f) Capitalization. TPSE has an authorized
capitalization of 575,000 ordinary shares of TPSE Capital Stock,
nominal value 1 pound per share, all of which are issued and
fully paid with no personal liability attaching to the ownership
thereof. The outstanding shares of TPSE Capital Stock are free
of any pledge, charge, security or claim of any third party
whatsoever.
(g) Charter Documents. Trigon has delivered to Sealed
Air and SAL a true, correct and complete copy of the charter
documents (including all amendments thereto) of TPSE and its
Subsidiaries (as defined in Section 4(i)). No action or
proceeding is pending or contemplated for the amendment of the
charter documents of TPSE or its Subsidiaries or for the
dissolution or liquidation of TPSE or its Subsidiaries.
(h) Outstanding Options, Warrants or Other Rights.
TPSE has no outstanding options, warrants or other rights
permitting or requiring it or others to purchase or convert any
obligation into shares of TPSE Capital Stock, has not agreed to
issue any shares of TPSE Capital Stock, and has not made any
commitment to increase the capital stock of TPSE. Either (i)
there are no voting trusts or other agreements or understandings
with respect to the voting or transfer of shares of TPSE Capital
Stock and shares of TPSE Capital Stock are not subject to any
pre-emptive rights, rights of first refusal or similar rights, or
(ii) Trigon hereby unconditionally and irrevocably waives all
rights of pre-emption or similar rights over any of the shares of
TPSE Capital Stock conferred on shareholders of TPSE by the
charter documents of TPSE or in any other way.
(i) Subsidiaries. Trigon has provided to Sealed Air
and SAL in writing contains a correct and complete list setting
forth (i) the name and jurisdiction of incorporation of each
Subsidiary, (ii) the number of shares of each class of capital
stock of each Subsidiary authorized, issued and outstanding, and
(iii) the number of shares of each class of capital stock of each
Subsidiary owned by TPSE. All of the outstanding shares of
capital stock of each Subsidiary are validly issued and fully
paid with no personal liability attaching to the ownership
thereof. TPSE has valid legal title to all of the outstanding
shares of capital stock of each Subsidiary shown on such list as
being owned by it, and such shares are owned by TPSE free and
clear of all restrictions on transfer, liens, claims, equitable
interests (save for shares held by nominees of TPSE),
encumbrances or security interests of any kind or nature
whatsoever. There are no voting trusts or other agreements or
understandings with respect to the voting or transfer of the
capital stock of any Subsidiary, and there are no existing pre-
emptive rights, rights of first refusal, options, warrants, calls
or commitments of any character relating to any of the authorized
or issued shares of capital stock of any Subsidiary. The
Subsidiaries listed in such list are the only Subsidiaries of
TPSE, and each such Subsidiary is a corporation duly organized,
validly existing and in good standing under the laws of England,
has all requisite corporate power and authority to own, lease and
operate its properties and to carry on its business as now being
conducted or proposed by it to be conducted and is duly qualified
and in good standing in each jurisdiction in which it owns,
leases or operates property (real or personal) and in each other
jurisdiction in which the failure to so qualify could have any
material adverse impact on the business, properties or condition,
financial or otherwise, of such Subsidiary. Trigon has provided
to Sealed Air and SAL in writing a correct and complete list of
each jurisdiction in which each such Subsidiary is so qualified.
For purposes of this Agreement, the term "Subsidiary" means any
corporation or other business entity in which TPSE or any other
Subsidiary, directly or indirectly, owns or has the ability to
control 50% or more of the equity interest.
(j) Record Ownership. Trigon is the registered holder
and beneficial owner of all of the issued shares of TPSE Capital
Stock.
(k) Financial Statements. Trigon has delivered to
Sealed Air and SAL (i) audited consolidated financial statements
of TPSE including any related notes thereto and any reports
thereon for each of the five fiscal years ended June 30, 1994,
and (ii) unaudited consolidated financial statements of TPSE for
the fiscal period ended September 30, 1994. Except as has been
disclosed to Sealed Air and SAL in writing, such financial
statements have been prepared in accordance with generally
accepted accounting principles consistently applied and fairly
present the financial position, income and changes in
consolidated financial position of TPSE 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 TPSE 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 the respective dates of such financial
statements TPSE and its Subsidiaries had no obligations or
liabilities of any nature not reflected in and adequately
reserved against on such balance sheets as required by generally
accepted accounting principles consistently applied to be so
reflected or reserved against. To the best of the knowledge of
Trigon, there is no basis for the assertion against TPSE and its
Subsidiaries of any material liability or obligation not
adequately reflected in or reserved against in such financial
statements.
(l) Certain Changes or Events. Since June 30, 1994,
neither TPSE nor any of its Subsidiaries 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;
(ii) declared, 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;
(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 additional Indebtedness for
borrowed money, except pursuant to lines of credit
existing at June 30, 1994, or issued or sold any debt
securities;
(v) mortgaged, pledged or subjected to any lien,
lease, security interest or other charge or
encumbrance, or granted any option with respect to any
of its properties or assets, tangible or intangible;
(vi) acquired or disposed of any assets or
properties of material value;
(vii) forgiven or cancelled any debts or claims or
waived any material rights;
(viii) entered into any material transaction other
than in the ordinary course of business;
(ix) granted to any 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 June 30, 1994 (other than
normal periodic salary reviews in amounts consistent
with past practices) or any severance or termination
pay (other than in minor amounts consistent with past
practices), or entered into any written employment
agreement or arrangement with any person;
(x) entered into, adopted or amended in any
respect any collective bargaining agreement or adopted
or amended any fringe benefit, bonus, profit-sharing,
compensation, stock option, pension, retirement,
deferred compensation, insurance or other similar plan,
agreement, trust, fund or arrangement for the benefit
of employees (whether or not legally binding);
(xi) suffered any damage, destruction or loss
(whether or not covered by insurance) which materially
and adversely affects or could materially and adversely
affect its condition (financial or otherwise),
properties, assets, business, operations or prospects
envisioned by it;
(xii) suffered any loss of employees or customers
that materially and adversely affects or could
materially and adversely affect it; or
(xiii) incurred any material liability or obligation
(fixed or contingent) except (A) liabilities and
obligations in the ordinary course of business and (B)
other liabilities and obligations not exceeding
$250,000 (NZ) in the aggregate.
(m) Title to Properties; Liens. Each of TPSE and its
Subsidiaries has good and marketable freehold or leasehold title
to, or valid and subsisting leasehold interests in, all of its
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 TPSE and its Subsidiaries as now 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 disclosed by Trigon to Sealed Air and
SAL in writing prior to the date of this Agreement, 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 TPSE and its Subsidiaries, and
each of TPSE and its Subsidiaries is in exclusive and undisputed
occupation of the whole of its real properties. There is not
under any lease of real or personal property to which TPSE and
its Subsidiaries 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, nor is there any actual or contingent
liability under any lease of real or personal property except for
such liabilities as have been disclosed by Trigon to Sealed Air
and SAL in writing prior to the date of this Agreement. Trigon
has provided to Sealed Air and SAL in writing a true and complete
list and brief description of all real and material personal
properties owned or leased by TPSE or its Subsidiaries, 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 Trigon
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 and other laws and
regulations relating to the discharge of materials into the
environment and to the disposal of solid, toxic, hazardous and
other wastes), 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 TPSE or its
Subsidiaries. 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 TPSE and its Subsidiaries in the conduct of
their business are in good operating condition and repair.
Neither TPSE nor its Subsidiaries has, since deduction of title
to SAL's solicitors, entered into any transaction affecting the
title to any of the real properties owned by TPSE or its
Subsidiaries.
(n) Patents and Other Rights. Except as disclosed by
Trigon to Sealed Air and SAL in writing prior to the date of this
Agreement, there are no:
(i) patents, patent applications, inventions as
to which either TPSE or its Subsidiaries has 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
TPSE or its Subsidiaries or (B) owned by or otherwise
held in the name of third parties in which TPSE or its
Subsidiaries has any interest by license or otherwise;
or
(ii) licenses, assignments and agreements to which
TPSE or its Subsidiaries 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
TPSE or its Subsidiaries.
To the best of the knowledge of Trigon, neither TPSE nor its
Subsidiaries has infringed, 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 TPSE or its Subsidiaries, and there
is no basis nor would there be any basis for the assertion of any
claim against TPSE or its Subsidiaries of such infringement,
unauthorized use or misappropriation. There is no pending or
threatened claim of such nature against TPSE or its Subsidiaries.
There are no items of the type described in clauses (i) and (ii)
that are required or are being used to carry on the business of
TPSE or its Subsidiaries substantially as now conducted.
(o) Litigation, Etc. Except as disclosed by Trigon to
Sealed Air and SAL in writing prior to the date of this
Agreement, there are no actions, suits, proceedings or
investigations pending or, to the best of the knowledge of
Trigon, threatened against or affecting TPSE or its Subsidiaries,
at law or in equity, before any court, commission, board, bureau,
agency, instrumentality or other governmental authority. To the
best of the knowledge of Trigon, there are no claims that have
not been asserted against TPSE or its Subsidiaries that are
probable of assertion.
(p) Governmental Consents, Etc. Except for such as
are disclosed in this Agreement or have been disclosed by Trigon
to Sealed Air and SAL in writing prior to the date of this
Agreement, all of which will be obtained on or before the Closing
Date, neither Trigon, TPSE nor any of their Subsidiaries is
required to obtain any consent, approval or authorisation 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.
(q) Disclosure. Neither this Agreement, nor the
financial statements referred to in Section 4(k), nor any other
document, certificate, schedule or written statement furnished to
Sealed Air or SAL by or on behalf of TPSE, its Subsidiaries or
Trigon 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 known or which in the exercise of
reasonable care should be known by Trigon to be necessary in
order to make the statements contained herein or therein not
misleading.
(r) Compliance With Other Instruments, Etc. Except
for the consents disclosed by Trigon to Sealed Air and SAL in
writing prior to the date of this Agreement, which consents will
be obtained prior to the Closing, the execution, delivery and
performance of this Agreement by Trigon and the performance by
TPSE and its Subsidiaries of the obligations that Trigon has
agreed hereunder to cause them to perform under this Agreement
will not conflict with, result in any breach of, or constitute a
default under or cause the acceleration of, or require any
permit, approval, consent or other action by any other person
pursuant to any provision of any charter, bylaw, mortgage,
indenture, lien, license, permit, lease, option or other material
agreement or instrument, judgment, decree, ordinance, regulation,
proceeding or order or any other restriction of any other kind or
character to which TPSE or its Subsidiaries is a party or by
which TPSE or its Subsidiaries or any of their respective
properties may be bound or affected.
(s) Compliance With Law. Each of TPSE and its
Subsidiaries holds all registrations, licenses, franchises,
permits and authorisations necessary for the lawful conduct of
its business and has conducted its business so as to comply, and
to the best knowledge of Trigon has complied and is 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 agencies or other bodies with jurisdiction
over it or over any part of its operations and is not in
violation of any thereof, except for such registrations,
licenses, franchises, permits and authorisations, the lack of
which, and for such statutes, laws, ordinances, rules and
regulations, non-compliance with or violations of which (or the
curing thereof), in any one case or in the aggregate, would not
have a materially adverse effect on the assets, liabilities,
earnings, business, prospects or condition (financial or
otherwise) of TPSE or its Subsidiaries or impair Trigon s ability
or the ability of TPSE or its Subsidiaries to consummate the
transactions contemplated by this Agreement.
(t) Existing Contracts. All material contracts,
agreements, leases, licenses and understandings to which TPSE or
its Subsidiaries is a party (true, correct and complete copies of
which have been delivered or made available to SAL 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 TPSE or its Subsidiaries
or, to the best of the knowledge of Trigon, the other parties
thereto. Except as disclosed by Trigon to Sealed Air and SAL in
writing prior to the date of this Agreement, neither TPSE nor its
Subsidiaries is a party to nor does it have 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, superannuation, 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 may
not be cancelled by it on less than 90 days notice, (vi) contract
for the purchase or provision of goods or services by TPSE or its
Subsidiaries for an aggregate price in excess of
$250,000 (NZ) per contract, (vii) contract or commitment for
capital expenditures in excess of $250,000 (NZ) in the aggregate,
(viii) contract continuing over a period of more than one year
from its date, (ix) mortgage, loan or credit agreement, (x)
contract requiring consent to the transactions contemplated by
this Agreement, (xi) contract to act as an agent of any person,
(xii) guarantee of the obligations of any other person, (xiii)
contract for the distribution, sale or marketing of its products
by others, or (xiv) any other material contract, agreement or
understanding, written or oral, affecting TPSE or its
Subsidiaries whether or not TPSE or its Subsidiaries is a party
thereto.
(u) Taxes, Etc. In this Section 5(u), the definitions
set forth at the end of this Section 5(u) shall apply, and
references to TPSE shall be deemed also to refer separately to
each Subsidiary. References to any legislation (primary or
secondary) shall be deemed to refer also to all legislation
replacing or replaced by such legislation.
Returns, Notices and Records
(i) All returns and computations required to be
made or submitted by TPSE to any fiscal authority and
all notices and information required to be given by
TPSE to any Fiscal Authority have been properly and
duly prepared and punctually made submitted or given
are up-to-date, correct and are not the subject of any
dispute with or inquiry or investigation by any Fiscal
Authority and there are no facts or circumstances
likely to give rise to or be the subject of any such
dispute, inquiry or investigation.
(ii) Formal notice has been duly and properly
given of all claims for or (as the case may be)
disclaimers, elections or surrenders in respect of
Reliefs assumed to have been made for the purposes of
the audited financial statements of TPSE (and the
related notes and reports) for the financial year ended
June 30, 1994 (the "Accounts"), and there are no
claims, disclaimers, elections or surrenders the time
limit for the making or doing of which expires on or
before June 30, 1995.
(iii) All statements and disclosures made to any
Fiscal Authority in connection with any provision of
Fiscal Legislation were when made and remain complete
and accurate.
(iv) TPSE has sufficient records relating to past
events to calculate the Taxation or the Relief which
would arise on any disposal or on the realization of
any assets owned at June 30, 1994 (the "Accounting
Date") or acquired since that date but before the
Closing.
Accounts
(v) The provision or reserve for Taxation in the
Accounts is sufficient to cover:
(A) all liabilities of TPSE for Taxation as
at the Accounting Date (whether or not TPSE has
or may have any right of reimbursement against any
other person); and
(B) all Taxation for which TPSE may after
the Accounting Date become or have become liable
in respect of or by reference to:
(x) any income, profits or gains for
any period which ended on or before the
Accounting Date;
(y) any distributions made on or before
the Accounting Date or provided for in the
Accounts; or
(z) any Event occurring on or before
the Accounting Date.
(vi) The values shown in the Accounts for assets
within the charge to corporation tax on chargeable
gains and the book values of such assets acquired after
the Accounting Date but before the Closing do not
differ materially from the amounts which would be
deductible under Section 38 of The Taxation of
Chargeable Gains Act 1992 (the "1992 Act")
(expenditure) on a disposal of those assets.
(vii) The net values shown in the Accounts for
assets qualifying for capital allowances do not differ
materially from the aggregate amount of expenditure on
those asserts still unallowed but allowable in future
accounting periods for tax purposes.
(viii) Proper and adequate provision has been
made and shown in the Accounts for deferred taxation in
accordance with accounting principles and practices
generally accepted in the United Kingdom and commonly
adopted by companies carrying on businesses similar to
those carried on by TPSE and in particular such
provision is in accordance with all applicable
Statements of Standard Accounting Practice.
Events Since the Accounting Date
(ix) None of the following have occurred since
the Accounting Date:
(A) an Event giving rise to a liability
under Part VIII Taxes Management Act 1970 (charges
on non-residents);
(B) an Event giving rise to a liability
under Part XVII of The Income and Corporation
Taxes Act 1988 (the "Taxes Act") (tax avoidance);
(C) a distribution within the meaning given
by Part VI of the Taxes Act (company
distributions, tax credits, etc.) or within
Section 418 of the Taxes Act;
(D) an acquisition, disposal or supply or
deemed acquisition, disposal or supply of assets,
goods, services or business facilities of any kind
(including a loan of money or a letting, hiring or
licensing of any tangible or intangible property)
for a consideration which is treated for the
purposes of Taxation as different from the actual
consideration;
(E) an Event which results in TPSE being
liable for Taxation for which it is not primarily
liable;
(F) an Event in respect of which a Tax
Liability arises as a result of a failure by TPSE
to deduct or account for Taxation;
(G) a disposal or deemed disposal of capital
assets;
(H) TPSE ceasing or being deemed to cease to
be a member of any group or associated with any
other company for the purposes of Taxation; or
(I) any other Event which gives rise to a
Tax Liability on deemed (as opposed to actual)
income, profits or gains.
Payment of Taxation
(x) TPSE has duly and punctually paid all
Taxation to the extent that the same ought to have been
paid and has not paid or become liable to pay any
penalty or interest charged by virtue of the provisions
of any Fiscal Legislation.
Concessions
(xi) The amount of Taxation chargeable on TPSE
during any accounting period ending on or within six
years before the Accounting Date has not, to any
material extent, depended on any concession, agreement
or other formal or informal arrangement with any Fiscal
Authority, and TPSE has not during any accounting
period ending on or within six years before the
Accounting Date relied on any formal or informal
concession, dispensation or practice (whether general
or specific to TPSE) which purports to modify or
provide exemption from any obligation to make or submit
any computation, notice or return to any Fiscal
Authority.
Continuity of Trade
(xii) Within the period of three years ending
with the date hereof:
(A) TPSE has not discontinued any trade or
made a major change in the nature or conduct of a
trade or business carried on by it;
(B) the scale of activities in any trade
carried on by TPSE has not become small or
negligible; and
(C) no change of ownership of TPSE has taken
place.
Deductions and Withholdings
(xiii) TPSE has made all deductions in respect
of, or on account of, and Taxation from any payments
made by it which it is obliged or entitled to make and
has accounted in full to the relevant Fiscal Authority
for all amounts so deducted.
Distributions
(xiv) Since April 6, 1965 or, if later, the date
of incorporation of TPSE, TPSE has not:
(A) repaid or agreed to repay or redeemed or
agreed to redeem or purchased or agreed to
purchase any of its issued share capital or any
class thereof;
(B) made any repayment of share capital to
which Section 210(1) of the Taxes Act (bonus issue
following repayment of share capital) applies;
(C) issued any share capital as paid up
otherwise than by receipt of new consideration
within the meaning of Part VI of the Taxes Act
(company distributions, tax credits etc.); or
(D) made (nor is it deemed to have made) any
distribution within the meaning of the Taxes Act
except dividends properly authorized and disclosed
in its audited accounts.
Close Company
(xv) The failure by TPSE to obtain from its
Inspector of Taxes confirmation in writing that no
apportionment of its income will be made under Sections
423 to 430 inclusive of, and Schedule 19 to, the Taxes
Act (apportionment of certain income deductions and
interest) in respect of any accounting period
commencing on or before March 31, 1989 and ending
within six years before the date of this Agreement will
not lead to the imposition of any additional Taxation,
or interest or penalties in respect thereof, on TPSE.
(xvi) TPSE has not made any loan, advance or
payment or given any consideration falling within
Sections 419 to 420 or Section 422 of the Taxes Act
(charges to tax in connection with loans).
(xvii) TPSE has not made any payment which falls
to be treated as a distribution under Section 418 of
the Taxes Act (distribution to include certain expenses
of close companies).
(xviii) TPSE is not and has not at any time been
a close investment holding company in respect of any
accounting period.
(xix) TPSE has made no transfer of value such as
is specified in Section 94(1) of the Inheritance Tax
Act 1984 (charge on participators) and there has been
no variation in TPSE's share or loan capital within
Section 98 of that Act (effect of alterations of
capital, etc.).
Base and Written Down Values for Taxation Purposes
(xx) No chargeable gain or profit (disregarding
the effect of any indexation allowance available) would
arise if any asset of TPSE (other than trading stock)
were to be realized on the date hereof for a
consideration equal to the book value thereof shown or
included in the Accounts (or, in the case of any asset
acquired since the Accounting Date, for a consideration
equal to the consideration given for the acquisition)
and in particular (but without limitation) the amount
or value of the consideration for the acquisition of
any asset included in the Accounts is not deemed for
the purposes of Taxation to have been reduced by reason
of any claim made under Sections 152 (roll-over
relief), 153 (assets only partly replaced) or 165
(relief for gifts of business assets) of the 1992 Act
or by reason of the operation of Section 17 (disposals
and acquisitions treated as made at market value), or
Sections 126 to 140 of the 1992 Act (re-organization of
share capital, conversion of securities, etc.).
(xxi) No transaction has been entered into by
TPSE to which the provisions of Section 18
(transactions between connected persons) of the 1992
Act has been or could be applied.
(xxii) TPSE does not hold as an asset any debt
the disposal of which could give rise to a chargeable
gain or allowable loss.
(xxiii) No balancing charge in respect of any
capital allowances claimed or given would arise if any
assets of TPSE were to be realized for a consideration
equal to the amount of the book value thereof as shown
or included in the Accounts (or, in the case of any
asset acquired since the Accounting Date, for a
consideration equal to the consideration given for the
acquisition) and all necessary conditions for all
capital allowances claimed by TPSE were at all material
times satisfied and remain satisfied and TPSE has not
since the Accounting Date become liable for any
balancing charge.
Secondary Liability
(xxiv) No Event has occurred in consequence of
which TPSE is or may be held liable to pay or bear any
Taxation which is primarily chargeable against or
attributable to some person, firm or company other than
TPSE.
Stamp and Capital Duties
(xxv) TPSE has duly paid all capital duty, stamp
duty and stamp duty reserve tax for which it is or has
been or may be made liable and all documents in the
endorsement of which TPSE is or may be interested have
been duly stamped and there is no liability to any
penalty in respect of such duty or tax nor are there
any circumstances or transactions in which TPSE is or
has been a party which may result in TPSE becoming
liable to such penalty.
(xxvi) There are no documents outside the United
Kingdom which if they were brought into the United
Kingdom would give rise to a liability to stamp duty
payable by TPSE.
Anti-avoidance
(xxvii) TPSE has not at any time entered into or
been a party to or otherwise been involved either in
any scheme or arrangement designed wholly or partly for
the purpose of avoiding or deferring Taxation or in any
non-arms' length transaction or other transaction or
arrangement in respect of which there may be
substituted for the actual consideration given or
received any different consideration for the purposes
of any Fiscal Legislation.
Value Added Tax
(xxviii) For the purposes of value added tax
TPSE:
(A) is a taxable person and is registered in
the United Kingdom under Schedule 1 of the Value
Added Tax Act 1994 and is not registered (nor
required to be registered) for local VAT or its
equivalent in any other State;
(B) has complied with all the requirements
of the Value Added Tax Act 1983 and 1994 and all
applicable regulations and orders, has fully
maintained complete, correct and up-to-date
records, invoices and other necessary documents
and has not been required by H.M. Commissioners of
Customs and Excise to give any security; and
(C) has never been treated as a member of a
group of companies and has not made any
application to be so treated.
(xxix) All value added tax for which TPSE was
liable to account on or before the date hereof to H.M.
Commissioners of Customs and Excise has been paid to
them.
(xxx) No circumstances exist whereby TPSE would
or might become liable for value added tax pursuant to
the provisions of Section 47 (agents, etc.) or 48 (tax
representatives) of the Value Added Tax Act 1994.
(xxxi) TPSE has not made any exempt supplies in
consequence of which it is or will be unable to obtain
credit for all input tax paid by it during any value
added tax quarter ending after the Accounting Date.
(xxxii) TPSE has not made and is not otherwise
bound by any election made pursuant to paragraph 2 of
schedule 10 of the Value Added Tax Act 1994.
(xxxiii) TPSE has not been a party to a
transaction to which Article 12 of the Value Added Tax
(Special Provisions) Order 1981, or Article 5 of the
Value Added Tax (Special Provisions) Order 1992
(transfer of business as a going concern) has (or has
purported to have been) applied.
(xxxiv) No asset of TPSE is a capital item the
input tax on which could be subject to adjustment in
accordance with the provisions of Part VA of the Value
Added Tax (General) Regulations 1985.
(xxxv) TPSE has never been subject to any penalty
or liability under any of Sections 60 to 63
(inclusive), 65 or 67 to 69 (inclusive) of the Value
Added Tax Act 1994 and has not been subject to any
penalty or liability nor been given any penalty
liability notice within Section 64 of that Act
(repeated misdeclarations) nor been given any surcharge
liability notice within section 59 of that Act nor been
given a notice within section 66 of that Act nor been
given a warning within section 76(2) of that Act.
(xxxvi) TPSE has no interest in any new or
uncompleted buildings or civil engineering works within
the meaning of Group 1 Schedule 9 of he Value Added Tax
Act 1994.
(xxxvii) TPSE has not been engaged in any
transaction which has resulted or could result in TPSE
being treated as making any supply to itself for value
added tax purposes.
Duties
(xxxviii) All value added tax payable upon the
importation of goods and all excise duties payable to
H.M. Customs & Excise payable in respect of any assets
(including trading stock) imported or owned by TPSE
have been paid in full.
Groups
(xxxix) TPSE has not surrendered or claimed any
amount by way of group relief under the provisions of
Section 402 of the Taxes Act (surrender of relief
between members of groups and consortia) or any advance
corporation tax under the provisions of Section 240 of
the Taxes Act (set-off of company's surplus ACT against
subsidiary's liability to corporation tax).
(xl) TPSE is not (and has not at any time been)
party to a special arrangement as referred to in Inland
Revenue Statement of Practice SP10/93 (Corporation tax
- Pay and File - special arrangements for groups of
companies) dated 8th October 1993.
(xli) No tax is or may become payable by TPSE
pursuant to Section 190 of the 1992 Act (tax on one
member or group recoverable from another member) in
respect of any chargeable gain accruing prior to
Signing.
(xlii) TPSE is not liable (and will not after
Signing become liable) to make:
(A) any payment for group relief (within the
meaning of Section 402(6) of the Taxes Act) or any
payment for advance corporation tax (as mentioned
in Section 240(8) of the Taxes Act);
(B) any refund (in whole or in part) of any
such payment received by TPSE before the Closing.
(xliii) TPSE has not at any time within the
period of six years ending with the date of this
Agreement acquired any asset other than as trading
stock from any other company which at the time of the
acquisition was a member of the same group of companies
as TPSE (as defined in Section 170 of the 1992 Act
(groups of companies; definitions)) and no member of
any group of companies of which TPSE is or has at any
material time been the principal company (as defined in
Section 170 of the 1992 Act (groups of companies;
definitions)) has so acquired any asset.
(xliv) TPSE has not since 10th April 1968 ceased
to be a member of a group of companies for the purposes
of Section 178 or 179 of the 1992 Act (company ceasing
to be member of a group).
(xlv) TPSE has not carried out or participated in
any depreciatory transaction relating to any shares or
securities of a company which are in its beneficial
ownership.
(xlvi) Trigon has provided to Sealed Air and SAL
in writing particulars of all elections made by TPSE
under Section 247 of the Taxes Act (dividends etc. paid
by one member of a group to another) and all such
elections are now in force.
Deductions
(xlvii) TPSE has not made any payment or incurred
any liability to make any payment which could be
disallowed as a deduction in computing the taxable
profits of TPSE or as a charge on TPSE's income.
Inheritance tax
(xlviii) TPSE is not and will not become liable
to be assessed to capital transfer tax or inheritance
tax as donor or donee of any gift or as transferor or
transferee of value (actual or deemed) nor as a result
of any disposition chargeable transfer or transfer of
value (actual or deemed) made by or deemed to be made
by any other person.
(xlix) There is no unsatisfied liability to
capital transfer tax or inheritance tax attached or
attributable to the assets of TPSE or the shares of
TPSE and neither such assets nor such shares are
subject to an Inland Revenue charge.
(l) No person has the power under Section 212 of
the Inheritance Tax Act 1984 (powers to raise tax) to
raise any capital transfer tax or inheritance tax by
sale or mortgage of or by a terminable charge on any of
TPSE's assets or shares.
Foreign Connections and Other Matters
(li) No transaction described in:
(A) Section 765(1) of the Taxes Act
(migration, etc. of companies);
(B) Section 765A of the Taxes Act (movements
of capital between Member States); or
(C) Sections 140, 140A or 140C of the 1992
Act (international asset transfers);
has been carried out or proposed by or in relation to
TPSE.
(lii) TPSE has never been resident outside the
United Kingdom, nor has it ever carried on any trade,
business or other activities outside the United
Kingdom.
(liii) No company over which TPSE had control or
which was a member of the same group of companies as
TPSE has ceased to be resident in the United Kingdom.
(liv) TPSE does not have and never had:
(A) an interest in a controlled foreign
company within the meaning of Section 747 of the
Taxes Act (imputation of chargeable profits and
creditable tax of controlled foreign companies);
or
(B) a material interest in an offshore fund
within the meaning of Chapter V of Part XVII of
the Taxes Act.
(lv) TPSE has not entered into a transaction to
which the provisions of Section 770 of the Taxes Act
(sales, etc. at undervalue or overvalue) could apply.
(lvi) TPSE has not made any claim under Section
584 Taxes Act or Section 29 of the 1992 Act (delayed
remittances).
(lvii) There has not accrued any gain in respect
of which TPSE may be liable to corporation tax on
chargeable gains by virtue of the provisions of
Sections 13 (attribution of gains to members of non-
resident companies) or 87 (attribution of gains to
beneficiaries) of the 1992 Act.
(lviii) No Event has occurred or circumstances
arisen which could give rise to a liability on TPSE:
(A) under Section 132 of the Finance Act
1988 (liability of other persons for unpaid tax)
nor has TPSE been party to any election under
Section 187 of the 1992 Act (postponement of
charge on deemed disposal under Section 185 or
186); or
(B) under Section 191 of the 1992 Act (tax
on non-resident company recoverable from another
member of the group or from controlling director).
(lix) TPSE is not liable to be assessed to tax
under Section 78 of the Taxes Management Act 1970
(method of charging non-residents) and has not received
any such assessment.
(lx) TPSE has not received nor is it entitled to
receive foreign loan interest on which double tax
relief will or may be restricted under the provisions
of Section 798 of the Taxes Act (interest on certain
overseas loans).
As used in this Section 5(u), the following definitions shall
apply:
(i) "Tax Liability" means a liability to make
payment of Taxation (or of an amount in respect of
Taxation).
(ii) "Claim" means any notice, demand,
assessment, letter or other document issued or action
taken by or on behalf of any Fiscal Authority from
which it appears that a Tax Liability is to be or may
come to be imposed on TPSE or that is liable or is
sought to be made liable to make any payment or
increased or further payment to such Fiscal Authority
or is denied or is sought to be denied any Relief or
right to repayment of Taxation (in whole or in part).
(iii) "Deferred Relief" means any Relief which
has been taken into account in computing (and so
reducing) any provision for deferred taxation which
appears in the Accounts (or which, but for the presumed
availability of such Relief, would have appeared in the
Accounts).
(iv) "Event" means any event, act, transaction,
action or omission (whether or not TPSE is a party
thereto) and includes (without limitation) a failure to
take any action which would avoid an apportionment or
deemed distribution of income, the receipt or accrual
of any income, profits or gains, any distribution, any
transfer, payment, loan or advance, and any event which
is deemed to have occurred or is treated or regarded as
having occurred for the purposes of Fiscal Legislation.
(v) "Fiscal Authority" means the Inland Revenue,
HM Customs & Excise or other governmental, statutory,
state, provincial or local government authority, body
or official (whether within or outside the United
Kingdom) involved in the collection or administration
of Taxation.
(vi) "Fiscal Legislation" means any statute,
enactment, law or regulation providing for the
imposition of Taxation.
(vii) "income, profits or gains" includes income,
profits or gains (including capital gains) of any
description or from any source and income profits or
gains which are deemed to be earned, accrued or
received for the purposes of any Taxation.
(viii) "loss" includes in relation to a Relief or
right to repayment of Taxation, the reduction,
modification, claw-back, counter-action, disallowance
or cancellation of or failure to obtain that Relief or
right to repayment of Taxation, and "lost" shall be
construed accordingly.
(ix) "Post-Closing Relief" and "Post-Closing
right to repayment of Taxation" mean, respectively, any
Relief or right to repayment of Taxation which in
either case arises as a consequence of or by reference
to an Event occurring (or deemed to occur) after
Closing and not as a consequence of or by reference to
any Event occurring (or deemed to occur) on or before
the Closing.
(x) "Relief" means any loss, relief, allowance,
exemption, set-off, deduction, credit, or other relief
available in relation to Taxation or to the computation
of income profits or gains for the purposes of Taxation
pursuant to Fiscal Legislation or otherwise but
excluding any right to repayment of Taxation.
(xi) "right to repayment of Taxation" includes in
respect of any Taxation any right to interest and/or
repayment supplement (as defined in Section 825 or 826
of the Taxes Act) in relation to that Taxation.
(xii) "Taxation" means all forms of taxation,
whenever created or imposed, and whether of the United
Kingdom or elsewhere (whether or not such taxation is
directly or primarily chargeable against or payable by
TPSE or attributable directly or primarily to TPSE and
whether or not TPSE shall or may have any right of
recovery from or reimbursement against any other
person) including (without limitation) corporation tax,
advance corporation tax, income tax (including income
tax or amounts equivalent to income tax required to be
deducted or withheld from or accounted for in respect
of any payment) capital gains, tax development, land
tax capital transfer tax, inheritance tax, value added
tax, stamp duty, stamp duty reserve tax, vehicle duty,
general or business rates, water rates, customs &
excise duties, national insurance, social security or
similar contributions and any other taxes, levies,
duties, charges, imposts or withholdings similar to
corresponding with or replaced by any of the foregoing
together with all penalties, fines, charges,
surcharges and interest in relation thereto.
(v) Insurance. Trigon has provided to Sealed Air and
SAL in writing a true and complete list and a brief description
of all insurance policies currently in force with respect to the
business and assets of TPSE or its Subsidiaries together with the
premiums currently paid thereon. Each of TPSE and its
Subsidiaries is in compliance in all material respects with the
provisions of such insurance policies and is not in material
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.
(w) Employee Benefits.
(i) Trigon has provided to Sealed Air and SAL in
writing a true and complete list of all employee
benefit and welfare plans of, or other fringe benefits
provided by, TPSE or its Subsidiaries, including
superannuation, pension, profit-sharing, thrift,
savings, bonus, retirement, vacation, life insurance,
health insurance, sickness, disability, medical and
death benefit plans.
(ii) As to each superannuation scheme (each a
"Pension Plan"),
(A) Full details of such Pension Plan have
been given to Sealed Air and SAL in such form of:
(x) copies of all trust deeds and rules
governing or relating to such Pension Plan;
(y) copies of all explanatory booklets
issued to TPSE's employees or directors or
former employees or former directors
(together called for such purposes of this
Section 5(w)(ii) "Participating Employees")
who are members of such Plan; and
(z) copies of any announcement (whether
oral or written) to Participating Employees
relating to pension matters in respect of
benefit improvements or other amendments not
yet incorporated into such documentation of
such Pension Plan.
(B) There has been no breach of trusts of
such Pension Plan and there are no actions, suits
or claims (other than routine claims for benefits)
outstanding, pending or threatened against such
trustees or administrator of such Pension Plan or
against TPSE or any other employer which
participates in such Pension Plan in respect of
any act, event, omission or other matter arising
out of or in connection with such Pension Plan.
(C) There are not any contributions due to
such Pension Plan from or in respect of
Participating Employees or other payments which
have fallen due but are unpaid.
(D) The benefits payable under such Pension
Plan whether immediate, prospective or contingent,
are solely the benefits which can be provided by
the fund available for each Participating Employee
under such Pension Plan.
(E) Such Pension Plan is either approved by
the Commissioners of Inland Revenue as an exempt
approved scheme for the purposes of Chapter I of
Part XIV of such Income and Corporation Taxes Act
1988 or is capable of receiving such approval,
and, to such best of the knowledge of Trigon,
there are no circumstances which might give the
Inland Revenue reason to withdraw or withhold such
approval.
(F) Such Pension Plan is not a contracted-
out scheme for such purposes of such Pension
Schemes Act 1993.
(G) Such Pension Plan is wholly invested in
insurance policies or contracts issued by Scottish
Widows' Fund and Life Assurance Society, and no
loans have been made out of the assets of such
Pension Plan.
(H) Such Pension Plan is registered with the
Registrar of Pension Schemes and such registration
is complete and up to date and any levy payable
has been paid.
(I) There are no employees who are or who
have been employed on a part-time basis and who
have the right to join such Pension Plan.
(x) Miscellaneous.
(i) Trigon has provided to Sealed Air and SAL in
writing a true and complete list of the names and
current emoluments of all managerial employees of each
of TPSE and its Subsidiaries.
(ii) Trigon has provided to Sealed Air and SAL in
writing a true and complete list of (A) each bank and
safety deposit facility in which TPSE or its
Subsidiaries 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 TPSE nor its Subsidiaries has, since
June 30, 1994, permitted any option to renew any
material lease or any material option to purchase any
property to expire unexercised, in whole or in part.
(iv) Trigon has provided to Sealed Air and SAL in
writing a true and complete list of all outstanding
powers of attorney granted by TPSE or its Subsidiaries
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 disclosed by Trigon to Sealed Air
and SAL in writing prior to the date of this Agreement,
neither TPSE nor its Subsidiaries has any obligation or
liability, either actual, accrued, accruing or
contingent, as guarantor, surety, cosigner, 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.
5. Certain Agreements.
(a) Conduct of Business of TPSE and its Subsidiaries
Prior to the Closing, etc. Prior to the Closing, except as
contemplated by this Agreement or as may be expressly approved in
writing by Sealed Air and SAL, Trigon:
(i) will cause each of TPSE and its Subsidiaries
to operate its business only in the usual, regular and
ordinary manner;
(ii) will cause each of TPSE and its Subsidiaries
to maintain all of its properties in customary repair,
order and condition and to maintain adequate insurance
upon all of its properties, at least in such amounts
and of such kinds comparable to that in effect on the
date of this Agreement;
(iii) will cause each of TPSE and its Subsidiaries
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 it and to the conduct of its
business;
(iv) will not permit any amendment to be made in
the charter documents of TPSE or its Subsidiaries or
permit TPSE or its Subsidiaries 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) except with respect to its Subsidiaries as
contemplated by this Agreement, will not permit any
change to be made in the number of shares of TPSE
Capital Stock or its Subsidiaries' Capital Stock issued
and outstanding or any option, warrant or any other
right to purchase of to convert any obligation into
shares of TPSE Capital Stock or its Subsidiaries'
Capital Stock to be granted or made by TPSE or its
Subsidiaries;
(vi) will not permit (A) any dividend or other
distribution or payment to be declared, paid or made by
TPSE or its Subsidiaries in respect of its capital
stock or (B) any purchase, redemption or other
acquisition of any outstanding shares of its capital
stock;
(vii) will not permit TPSE or its Subsidiaries to
encumber or mortgage any of their 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 Trigon permit
TPSE or its Subsidiaries to incur any obligation
(contingent or otherwise) other than in the ordinary
course of business or to transfer, convey or acquire
any material assets or property, or to enter into any
arrangement, agreement or undertaking (including,
without limitation, employment agreements with
executives), or to pay or promise to pay any bonus or
special compensation to employees, except in accordance
with existing employment agreements, or to modify,
amend or terminate any bonus, pension, profit-sharing,
compensation, insurance or other similar plan,
agreement, trust, fund or arrangement for the benefit
of employees;
(viii) will promptly take, and shall cause each
of TPSE and its Subsidiaries to take, such actions as
shall be necessary to satisfy the conditions set forth
in Section 3 requiring action on the part of Trigon or
on the part of TPSE or its Subsidiaries; 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 and
SAL, neither Trigon, TPSE nor its Subsidiaries shall
solicit inquiries or proposals or participate in any
negotiations concerning, or provide any person with any
information in connection with, any acquisition or
purchase by merger, consolidation, sale of stock or
assets or otherwise of all or substantially all of the
assets or capital stock of TPSE or its Subsidiaries,
and Trigon will notify Sealed Air and SAL immediately
if any such inquiries or proposals are received.
(b) Delivery of Minute Books and Corporate Records:
Resignation of Directors.
(i) Upon the Closing, Trigon shall cause the
minute books and corporate records of TPSE and its
Subsidiaries 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 Trigon that such minute books and corporate
records are true, correct and complete.
(ii) Upon the Closing Date, such of the directors
of each of TPSE and its Subsidiaries as Sealed Air
shall request shall resign and be replaced by designees
of SAL and Sealed Air.
(c) Sealed Air Guarantee. Sealed Air hereby
unconditionally guarantees the full and faithful performance by
SAL of each and every obligation of SAL under this Agreement. In
the event of any failure by SAL to perform any of such
obligations, Trigon shall provide notice thereof to Sealed Air,
specifying the nature of the default and Sealed Air shall have a
period of twenty (20) days after the date of such notice within
which to cure such default or to cause SAL to cure such default,
and, in the event that SAL or Sealed Air shall fail to cure such
default within such twenty (20) day period, Sealed Air shall
thereupon perform the obligation of SAL specified in such notice.
6. General.
(a) 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.
(b) Corporate Examination; Investigations. From time
to time prior to the Closing Date, Sealed Air and SAL 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 TPSE and its Subsidiaries to the extent that Sealed Air or SAL
deem necessary or advisable to investigate the business or
affairs of TPSE and its Subsidiaries. Sealed Air and SAL agree
that, unless and until the Closing has been consummated, they 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, they will
return to Trigon or to TPSE or its Subsidiaries all such data and
information as Trigon shall reasonably request.
(c) Execution in Counterparts. This Agreement may be
executed in one or more counterparts (including facsimile
copies), each of which shall be deemed an original, but all of
which together shall constitute one and the same document.
(d) 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 recorded
delivery mail, return receipt requested, and any such notice
shall become effective when delivered in person, received by
facsimile or when deposited in the mails, to be sent via air
mail, postage prepaid, addressed as follows:
If to Sealed Air, to:
Sealed Air Corporation
Park 80 East
Saddle Brook, New Jersey 07663
Attention: William V. Hickey
Senior Vice President-Finance
Facsimile No.: (201) 703-4205
If to SAL, to:
Sealed Air Limited
Telford Way
Kettering, Northants,
England
Attention: Peter B. Ayrton
Chairman
Facsimile No.: (44) (536) 410576
If to Trigon, to:
Trigon Industries Limited
317 Sunset Road, Mairangi Bay
Auckland, New Zealand
Attention: Peter Stanes/Reno Wijnstok
Facsimile No.: (09) 479 1305
The address of any party to this Agreement may be changed at any
time by written notice to the other parties to this Agreement.
(e) 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.
(f) 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.
(g) 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. Any provision of this Agreement which as not been
performed at or before the Closing or is capable of taking effect
after the Closing shall remain in full force and effect
notwithstanding the Closing.
(h) Governing Law. The execution, validity,
construction and performance of this Agreement shall be governed
by and construed in accordance with the laws of England, without
giving effect to the principles of conflicts of law.
(i) Captions; Gender; Etc. The captions of this
Agreement are for convenience of reference only and shall not
affect in any manner any of the terms, covenants or conditions
hereof. words of the masculine gender shall mean and include
correlative words of the feminine and neuter genders and words
importing the singular number shall mean and include the plural
number and vice versa.
(j) Conduct of Business of Sealed Air and SAL.
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 Sealed Air or SAL in the
conduct of their businesses.
(k) References to Best Knowledge. The phrase "to the
best knowledge of Trigon" or phrases of similar import, when used
in this Agreement with respect to a statement, representation or
warranty, means that, at the time such statement, representation
or warranty was made, confirmed or deemed to have been made or
confirmed, Trigon had, after reasonable investigation, reasonable
ground to believe and no reasonable basis not to believe, and did
in fact believe, that such statement, representation or warranty
was true and that there was no omission to state therein a
material fact required to be stated therein in order to make such
statement, representation or warranty not misleading. In
determining for this purpose what constitutes reasonable
investigation and reasonable ground for belief, the standard of
reasonableness shall be that required of a prudent man in the
management of his own property.
IN WITNESS WHEREOF, the parties have duly executed
this Agreement as a deed as of the date first set forth above.
SEALED AIR LIMITED
By
Name: William V Hickey
Title: Attorney-in-fact
TRIGON INDUSTRIES LIMITED
By______________________________
Name:
Title: Director
______________________________
Name:
Title: Director
SEALED AIR CORPORATION
By
Name: William V Hickey
Title: Senior Vice President -
Finance
EXHIBIT E-1
NON-COMPETITION AGREEMENT
AGREEMENT dated 10 January, 1995 between JAMES WILLIAM
FERGUSON FOREMAN (the "Stockholder"), and SEALED AIR CORPORATION,
a Delaware corporation ("Sealed Air").
WITNESSETH:
WHEREAS, the Stockholder is a director, and a principal
stockholder of TRIGON INDUSTRIES LIMITED, a New Zealand
corporation (the "Company"); and
WHEREAS, as such, the Stockholder has extensive and
valuable knowledge of the businesses of the Company and its
Subsidiaries (including confidential and other information
proprietary to the Company and its Subsidiaries and their
operations, customers, personnel, plans and prospects) and has
been largely responsible for the success of the business
of the Company and its Subsidiaries; and
WHEREAS, the Company has carried on business in the
United Kingdom through Trigon Packaging Systems (Europe) Limited,
a company incorporated under the laws of England, and its
Subsidiaries (collectively "TPSE"), and in the United States
through Trigon Packaging Corporation, a Washington corporation,
and its Subsidiaries (collectively "TPC"); and
WHEREAS, contemporaneously herewith, pursuant to a
Share Purchase Agreement between the Company, the shareholders of
the Company, SEALED AIR HOLDINGS (NZ) LIMITED, a New Zealand
corporation ("Holdings"), and Sealed Air (the "Share Purchase
Agreement"); Holdings is acquiring the Company and certain of
its Subsidiaries; and
WHEREAS, during the discussions and negotiations
between the Stockholder and Sealed Air, concluding with the Share
Purchase Agreement, the Stockholder has gained considerable
knowledge regarding the businesses of Sealed Air and its
Subsidiaries; and
WHEREAS, in order to induce Sealed Air and Holdings to
enter into the Share Purchase Agreement, and to more fully secure
unto Sealed Air, and Holdings and their Affiliates the benefits
of that agreement, Sealed Air has requested that the Stockholder
enter into this Agreement with respect to competition,
confidentiality and related matters, and the Stockholder desires
to enter into this Agreement to induce Sealed Air and Holdings to
enter into and to consummate that agreement; and
WHEREAS, the terms used herein in capitalized form that
are not defined herein are used herein as defined in the Share
Purchase Agreement;
NOW, THEREFORE, in consideration of the payment
referred to in Section 2 hereof, the Stockholder agrees with
Sealed Air as follows:
1. Certain Definitions. In addition to other terms
defined herein, the following terms when used herein shall have
the following meanings:
"Competition" means (a) the design, development,
manufacture, sale or offering or promoting for sale of any
product, process, good or service which is the same as, is
functionally similar to or competes with any product, process,
good or service which the Company, TPC, TPSE or any of their
Subsidiaries has designed, developed, manufactured, sold
or offered or promoted for sale within the two years preceding
the date of this Agreement,(b) any business which is the same as
or substantially similar to or is or would be competitive with
any business which has been conducted by the Company or any of
its Subsidiaries within the two years preceding the date of this
Agreement, and (c) any business involving the manufacture
or sale of air cellular materials, polyethylene foam, mailers or
envelopes of any sort or food packaging products.
"Customer" means any Person to whom any products,
processes, goods or services have been sold or offered for sale,
or from whom purchases thereof have been solicited, by the
Company or any of its Subsidiaries within the two years preceding
the date of this Agreement.
"Employee" means any individual employed by the Company
or any of its Subsidiaries on the date of this Agreement prior to
giving effect to the transactions contemplated by the Share
Purchase Agreement.
"Person" means an individual, corporation, partnership,
joint venture, trust or other entity.
"Restricted Territory" means any of the following
geographic areas (a) in which any product, process, good or
service has been sold or offered or promoted for sale by the
Company, Sealed Air or any of their respective subsidiaries
within the two years preceding the date of this Agreement or (b)
in which the Company, Sealed Air or any of their respective
subsidiaries has planned or proposed within the two years
preceding the date of this Agreement, to sell or promote sales
of any of the products, processes, goods or services of the
Company, Sealed Air or any of their respective subsidiaries:
(i) the entire world;
(ii) any country in which the Company, TPC, TPSE or
any of their respective Subsidiaries has transacted business at
any time during the two (2) years preceding the date of this
Agreement;
(iii) New Zealand, Australia, the United Kingdom,
Germany, and the United States of America;
(iv) any political subdivision of any of the foregoing
countries;
(v) any nation, or political subdivision thereof, in
Europe (west of the western border of the Commonwealth of
Independent States), including without limitation the United
Kingdom, Ireland, France, Spain, the Netherlands, Germany, Italy,
Belgium, Luxembourg, Norway, Sweden and Finland; or
(vi) Japan, Taiwan, Singapore, Malaysia, Hong Kong or
Korea or Thailand.
2. Consideration. In consideration for the covenants
of the Stockholder set forth in this Agreement, Sealed Air agrees
to pay $12,000,000 (NZ) to the Stockholder on the date of this
Agreement, receipt of which is acknowledged by the Stockholder.
3. Covenant Not to Compete. The Stockholder agrees,
for the benefit of Sealed Air and its Subsidiaries and Affiliates
from time to time, that for a period of five (5) years after
the date hereof he will not:
(a) engage in any Competition in any Restricted
Territory; or
(b) directly or indirectly, be or become an employee,
agent or consultant of, or acquire or have any
proprietary or
other equity interest in, or otherwise participate
or assist in
the business of, any person who engages in any
Competition in any
Restricted Territory;
provided that the Stockholder may without violating this covenant
own as a passive investment not in excess of 10% of the
outstanding capital stock of a corporation which engages in
Competition if such capital stock is a security which is actively
traded on an established national securities market.
4. Non-Solicitation. The Stockholder agrees, for the
benefit of Sealed Air and its Subsidiaries and Affiliates from
time to time, that for a period of five (5) years after the date
hereof he will not solicit any Customer for the purpose of any
sale to such Customer of products, processes, goods or services
the sale of which would constitute Competition.
5. Non-Inducement of Employees. The Stockholder
agrees, for the benefit of Sealed Air and its Subsidiaries and
Affiliates from time to time, that he will not without Sealed
Air's prior written consent induce or attempt to induce any
Employee to leave his employment with the Company, TPC, TPSE or
any of their Subsidiaries.
6. Confidentiality. The Stockholder agrees, for the
benefit of Sealed Air and its Subsidiaries and Affiliates from
time to time, that he will not any time disclose to any Person
(other than the Company, TPC, TPSE, Holdings, Sealed Air and
their respective Subsidiaries) any secret or confidential
information, knowledge or data (including without limitation
customer lists, pricing lists, service manuals, trade secrets,
processes, formulae, plans, proposals and other information) of
or belonging to the Company, TPC, TPSE, Sealed Air, Holdings or
their respective Subsidiaries, other than information, knowledge
or data which is publicly known at the time of the intended
disclosure.
7. Specific Performance. The Stockholder acknowledges
that, in view of the nature of the business of the Company and
its Subsidiaries, his past association with such business, the
business objectives of Sealed Air and Holdings in acquiring the
Company and its Subsidiaries and their business and the
consideration paid to the Stockholder therefor, the
restrictions contained in Sections 3 through 6 hereof are
reasonably necessary to protect the legitimate business interest
of Sealed Air and its Affiliates, and that any violation of such
restrictions will result in irreparable injury to Sealed Air and
its Affiliates for which damages will not be an adequate remedy.
The Stockholder therefore acknowledges that if he violates
any such restrictions, Sealed Air and its Affiliates shall be
entitled to preliminary and injunctive relief as well as to an
equitable accounting of earnings, profits and other benefits
arising from such violation.
8. Non-Exclusivity. The rights and remedies of Sealed
Air hereunder are not exclusive of or limited by or in limitation
of any other rights or remedies which Sealed Air may have,
whether at law, in equity, by contract or otherwise, all of which
shall be cumulative. Without limiting the generality of the
foregoing, Sealed Air's rights and remedies hereunder, and the
obligations and liabilities of the Stockholder hereunder, are in
addition to their respective rights, remedies, obligations and
liabilities the general law or any relevant legislative
provisions. This Agreement does not limit, and is not limited
by, any non-compete, confidentiality, invention or similar
agreement which the Stockholder may contemporaneously herewith or
hereafter enter into with Sealed Air or the Company in connection
with any employment, consulting or other arrangement of the
Stockholder with Sealed Air, the Company or any of their
respective Subsidiaries.
9. Severability. Should any provision of this
Agreement or part thereof be held under any circumstances in any
jurisdiction to be invalid or unenforceable, such invalidity or
unenforceability shall not affect the validity or enforceability
of any other provision or other part of such provision, or of
such provision or part thereof under any other circumstances or
in any other jurisdiction.
10. Governing Law. This Agreement is made and entered
into in New Zealand, wherein the Company has its principal office
and wherein the Stockholder resides, and the construction,
validity and enforceability of this Agreement shall be governed
by the laws of New Zealand, without giving effect to the
principles of conflicts of law. The courts of New Zealand shall
have non-exclusive jurisdiction in relation to any legal
proceedings arising out of the transactions contemplated by this
Agreement.
11. Waiver. The rights of Sealed Air hereunder may be
waived only by a writing signed on behalf of Sealed Air by its
President or by a duly authorized Vice President expressly
setting forth the rights so waived and the matters as to which
they are so waived, and any such waiver shall be limited to the
matters expressly set forth in such writing. No failure or delay
of Sealed Air in enforcing any of its rights hereunder at any
time shall constitute or evidence any waiver of such rights.
12. Miscellaneous. This Agreement shall inure to the
benefit of Sealed Air and its successors and assigns. The
captions of this Agreement are for convenience of reference only
and shall not affect in any manner any of the terms, covenants or
conditions hereof. Words of the masculine gender shall mean and
include correlative words of the feminine and neuter genders and
words importing the singular number shall mean in include the
plural number and vice versa. This Agreement may be executed in
multiple counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same
document.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed on the date and year first above
written.
______________________________________
JAMES WILLIAM FERGUSON FOREMAN
Witness:
SEALED AIR CORPORATION
By
Name:William V Hickey
Title:Senior Vice President-Finance
EXHIBIT E-2
NON-COMPETITION AGREEMENT
AGREEMENT dated 10 January, 1995 between DIANE SHIRLEY
FOREMAN (the "Stockholder"), and SEALED AIR CORPORATION, a
Delaware corporation ("Sealed Air").
WITNESSETH:
WHEREAS, the Stockholder is a director, and a principal
stockholder of TRIGON INDUSTRIES LIMITED, a New Zealand
corporation (the "Company"); and
WHEREAS, as such, the Stockholder has extensive and
valuable knowledge of the businesses of the Company and its
Subsidiaries (including confidential and other information
proprietary to the Company and its Subsidiaries and their
operations, customers, personnel, plans and prospects) and has
been largely responsible for the success of the business
of the Company and its Subsidiaries; and
WHEREAS, the Company has carried on business in the
United Kingdom through Trigon Packaging Systems (Europe) Limited,
a company incorporated under the laws of England, and its
Subsidiaries (collectively "TPSE"), and in the United States
through Trigon Packaging Corporation, a Washington corporation,
and its Subsidiaries (collectively "TPC"); and
WHEREAS, contemporaneously herewith, pursuant to a
Share Purchase Agreement between the Company, the shareholders of
the Company, SEALED AIR HOLDINGS (NZ) LIMITED, a New Zealand
corporation ("Holdings"), and Sealed Air (the "Share Purchase
Agreement"); Holdings is acquiring the Company and certain of
its Subsidiaries; and
WHEREAS, during the discussions and negotiations
between the Stockholder and Sealed Air, concluding with the Share
Purchase Agreement, the Stockholder has gained considerable
knowledge regarding the businesses of Sealed Air and its
Subsidiaries; and
WHEREAS, in order to induce Sealed Air and Holdings to
enter into the Share Purchase Agreement, and to more fully secure
unto Sealed Air, and Holdings and their Affiliates the benefits
of that agreement, Sealed Air has requested that the Stockholder
enter into this Agreement with respect to competition,
confidentiality and related matters, and the Stockholder desires
to enter into this Agreement to induce Sealed Air and Holdings to
enter into and to consummate that agreement; and
WHEREAS, the terms used herein in capitalized form that
are not defined herein are used herein as defined in the Share
Purchase Agreement;
NOW, THEREFORE, in consideration of the payment
referred to in Section 2 hereof, the Stockholder agrees with
Sealed Air as follows:
1. Certain Definitions. In addition to other terms
defined herein, the following terms when used herein shall have
the following meanings:
"Competition" means (a) the design, development,
manufacture, sale or offering or promoting for sale of any
product, process, good or service which is the same as, is
functionally similar to or competes with any product, process,
good or service which the Company, TPC, TPSE or any of their
Subsidiaries has designed, developed, manufactured, sold
or offered or promoted for sale within the two years preceding
the date of this Agreement,(b) any business which is the same as
or substantially similar to or is or would be competitive with
any business which has been conducted by the Company or any of
its Subsidiaries within the two years preceding the date of this
Agreement, and (c) any business involving the manufacture
or sale of air cellular materials, polyethylene foam, mailers or
envelopes of any sort or food packaging products.
"Customer" means any Person to whom any products,
processes, goods or services have been sold or offered for sale,
or from whom purchases thereof have been solicited, by the
Company or any of its Subsidiaries within the two years preceding
the date of this Agreement.
"Employee" means any individual employed by the Company
or any of its Subsidiaries on the date of this Agreement prior to
giving effect to the transactions contemplated by the Share
Purchase Agreement.
"Person" means an individual, corporation, partnership,
joint venture, trust or other entity.
"Restricted Territory" means any of the following
geographic areas (a) in which any product, process, good or
service has been sold or offered or promoted for sale by the
Company, Sealed Air or any of their respective subsidiaries
within the two years preceding the date of this Agreement or (b)
in which the Company, Sealed Air or any of their respective
subsidiaries has planned or proposed within the two years
preceding the date of this Agreement, to sell or promote sales of
any of the products, processes, goods or services of the
Company, Sealed Air or any of their respective subsidiaries:
(i) the entire world;
(ii) any country in which the Company, TPC, TPSE or
any of their respective Subsidiaries has transacted business at
any time during the two (2) years preceding the date of this
Agreement;
(iii) New Zealand, Australia, the United Kingdom,
Germany, and the United States of America;
(iv) any political subdivision of any of the foregoing
countries;
(v) any nation, or political subdivision thereof, in
Europe (west of the western border of the Commonwealth of
Independent States), including without limitation the United
Kingdom, Ireland, France, Spain, the Netherlands, Germany, Italy,
Belgium, Luxembourg, Norway, Sweden and Finland; or
(vi) Japan, Taiwan, Singapore, Malaysia, Hong Kong or
Korea or Thailand.
2. Consideration. In consideration for the covenants
of the Stockholder set forth in this Agreement, Sealed Air agrees
to pay $8,000,000 (NZ) to the Stockholder on the date of this
Agreement, receipt of which is acknowledged by the Stockholder.
3. Covenant Not to Compete. The Stockholder agrees,
for the benefit of Sealed Air and its Subsidiaries and Affiliates
from time to time, that for a period of five (5) years after
the date hereof she will not:
(a) engage in any Competition in any Restricted
Territory; or
(b) directly or indirectly, be or become an employee,
agent or consultant of, or acquire or have any proprietary or
other equity interest in, or otherwise participate or assist in
the business of, any person who engages in any Competition in any
Restricted Territory;
provided that the Stockholder may without violating this covenant
own as a passive investment not in excess of 10% of the
outstanding capital stock of a corporation which engages in
Competition if such capital stock is a security which is actively
traded on an established national securities market.
4. Non-Solicitation. The Stockholder agrees, for the
benefit of Sealed Air and its Subsidiaries and Affiliates from
time to time, that for a period of five (5) years after the date
hereof she will not solicit any Customer for the purpose of any
sale to such Customer of products, processes, goods or services
the sale of which would constitute Competition.
5. Non-Inducement of Employees. The Stockholder
agrees, for the benefit of Sealed Air and its Subsidiaries and
Affiliates from time to time, that she will not without Sealed
Air's prior written consent induce or attempt to induce any
Employee to leave his employment with the Company, TPC, TPSE or
any of their Subsidiaries.
6. Confidentiality. The Stockholder agrees, for the
benefit of Sealed Air and its Subsidiaries and Affiliates from
time to time, that she will not any time disclose to any Person
(other than the Company, TPC, TPSE, Holdings, Sealed Air and
their respective Subsidiaries) any secret or confidential
information, knowledge or data (including without limitation
customer lists, pricing lists, service manuals, trade secrets,
processes, formulae, plans, proposals and other information) of
or belonging to the Company, TPC, TPSE, Sealed Air, Holdings or
their respective Subsidiaries, other than information, knowledge
or data which is publicly known at the time of the intended
disclosure.
7. Specific Performance. The Stockholder acknowledges
that, in view of the nature of the business of the Company and
its Subsidiaries, her past association with such business, the
business objectives of Sealed Air and Holdings in acquiring the
Company and its Subsidiaries and their business and the
consideration paid to the Stockholder therefor,the restrictions
contained in Sections 3 through 6 hereof are reasonably necessary
to protect the legitimate business interest of Sealed Air and its
Affiliates, and that any violation of such restrictions will
result in irreparable injury to Sealed Air and its Affiliates for
which damages will not be an adequate remedy. The Stockholder
therefore acknowledges that if she violates any such
restrictions, Sealed Air and its Affiliates shall be entitled to
preliminary and injunctive relief as well as to an equitable
accounting of earnings, profits and other benefits arising from
such violation.
8. Non-Exclusivity. The rights and remedies of Sealed
Air hereunder are not exclusive of or limited by or in limitation
of any other rights or remedies which Sealed Air may have,
whether at law, in equity, by contract or otherwise, all of which
shall be cumulative.
Without limiting the generality of the foregoing, Sealed Air's
rights and remedies hereunder,and the obligations and liabilities
of the Stockholder hereunder, are in addition to their respective
rights, remedies, obligations and liabilities the general law or
any relevant legislative provisions. This Agreement does not
limit, and is not limited by, any non-compete, confidentiality,
invention or similar agreement which the Stockholder may
contemporaneously herewith or hereafter enter into with Sealed
Air or the Company in connection with any employment, consulting
or other arrangement of the Stockholder with Sealed Air, the
Company or any of their respective Subsidiaries.
9. Severability. Should any provision of this
Agreement or part thereof be held under any circumstances in any
jurisdiction to be invalid or unenforceable, such invalidity or
unenforceability shall not affect the validity or enforceability
of any other provision or other part of such provision, or of
such provision or part thereof under any other circumstances or
in any other jurisdiction.
10. Governing Law. This Agreement is made and entered
into in New Zealand, wherein the Company has its principal office
and wherein the Stockholder resides, and the construction,
validity and enforceability of this Agreement shall be governed
by the laws of New Zealand, without giving effect to the
principles of conflicts of law. The courts of New Zealand shall
have non-exclusive jurisdiction in relation to any legal
proceedings arising out of the transactions contemplated by this
Agreement.
11. Waiver. The rights of Sealed Air hereunder may be
waived only by a writing signed on behalf of Sealed Air by its
President or by a duly authorized Vice President expressly
setting forth the rights so waived and the matters as to which
they are so waived, and any such waiver shall be limited to the
matters expressly set forth in such writing. No failure or delay
of Sealed Air in enforcing any of its rights hereunder at any
time shall constitute or evidence any waiver of such rights.
12. Miscellaneous. This Agreement shall inure to the
benefit of Sealed Air and its successors and assigns. The
captions of this Agreement are for convenience of reference only
and shall not affect in any manner any of the terms, covenants or
conditions hereof. Words of the masculine gender shall mean and
include correlative words of the feminine and neuter genders and
words importing the singular number shall mean in include the
plural number and vice versa. This Agreement may be executed in
multiple counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same
document.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed on the date and year first above
written.
__________________________
DIANE SHIRLEY FOREMAN
Witness:
SEALED AIR CORPORATION
By
Name:William V Hickey
Title:Senior Vice President-Finance
EXHIBIT H
JAMES WILLIAM FERGUSON FOREMAN and
DIANE SHIRLEY FOREMAN
SEALED AIR CORPORATION and
SEALED AIR HOLDINGS (NZ) LIMITED
THE NEW ZEALAND GUARDIAN TRUST
COMPANY LIMITED
AGREEMENT RELATING TO ESCROW FUND
AGREEMENT dated the 10th day of January 1995
PARTIES
JAMES WILLIAM FERGUSON FOREMAN and DIANE SHIRLEY FOREMAN
(jointly "Foreman")
SEALED AIR CORPORATION and SEALED AIR HOLDINGS (NZ) LIMITED
("SAC" and "Holdings" respectively and jointly "Sealed Air")
THE NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED ("Escrow
Agent")
INTRODUCTION
A. By an agreement dated 10 January 1995 ("Agreement") Foreman
agreed to sell and Holdings agreed to purchase 10,000,000
fully paid shares of NZ 50 cents in Trigon Industries
Limited.
B. The Agreement requires Holdings to satisfy the purchase
price for the shares in Trigon Industries Limited partly by
payment in cash and partly by the delivery to Foreman of
fully paid common stock of SAC.
C. Section 2(b)(iii) of the Agreement requires a certain
proportion of the cash and SAC common stock which would
otherwise be delivered to Foreman to be delivered to the
Escrow Agent to be held pursuant to the provisions of this
agreement.
D. In accordance with section 2(b)(iii) of the Agreement,
Holdings will deliver to the Escrow Agent a certain cash
amount("Cash Amount") and certain ordinary shares of US 1
cent each ("SAC Shares") to be held and applied in
accordance with this agreement.
AGREEMENT
1. Foreman and Sealed Air appoint the Escrow Agent, and the
Escrow Agent accepts appointment, as escrow agent on behalf
of Foreman and Sealed Air upon and subject to the provisions
of this agreement.
2. The parties acknowledge that the purpose of the trusts
created by this agreement is to establish a fund for the
purpose of satisfying claims (if any) which Sealed Air may
assert against Foreman pursuant to the Agreement.
3. The Escrow Agent shall take such steps as may reasonably be
required by Foreman to enable the SAC Shares to be sold in
accordance with section 1(e) of the Agreement and shall hold
the sum:
(a) received by it from the operation of clause 1(e) of the
Agreement; or
(b) received by it from the operation of clause 8(f) of the
Agreement, together with the Cash Amount, in an escrow account in
the joint names of Foreman and Sealed Air and shall hold and
disburse such sum and all interest earned thereon ("Escrow
Fund") in accordance with the provisions of this agreement.
Pending sale of the SAC Shares, the Escrow Agent shall hold the
Cash Amount and the SAC Shares on the same trusts as apply to the
Escrow Fund and the parties acknowledge that the obligation of
the Escrow Agent to make any payments in accordance with clauses
9 and 10 in an amount greater than the Cash Amount is dependent
upon the sale of the SAC Shares. The Escrow Agent shall take
such reasonable steps as may be required by Foreman to join with
Foreman or their nominees in enforcing and obtaining the bnefits
of the provisions of the Letter of Credit provided by Sealed Air
in order to meet the condition to Closing set out in Section
3(b)(iii) of the Sealed Air Agreement, but shall have no other
responsibility or obligation in respect of such Letter of Credit.
4. The Escrow Agent shall hold the Escrow Fund for the
respective rights and interests of Foreman and Sealed Air
pursuant to this agreement and shall not permit any part of
the Escrow Fund to be withdrawn or paid to any person except
in accordance with the terms of this agreement or as may be
required by law.
5. The Escrow Agent shall invest the Escrow Fund in such
investments as may from time to time be directed in writing
by Foreman and SAC jointly and in the absence of a joint
direction, the Escrow Fund will be held on deposit with any
of ANZ Banking Group (New Zealand) Limited, Westpac Banking
Corporation, Bank of New Zealand and The National Bank of
New Zealand Limited. Subject to complying with such
directions, the Escrow Agent shall not be liable to Foreman
or to Sealed Air for any loss of or diminution in any
investment.
6. Notwithstanding any other provision of this agreement, any
part of the Escrow Fund required to be paid by the Escrow
Agent pursuant to this agreement shall be subject to any
deductions or withholdings as may be required by law to be
made by the Escrow Agent or by any person with whom the
Escrow Fund is invested.
7. All amounts paid by the Escrow Agent to Sealed Air pursuant
to this agreement shall be applied on account of any
liability which Foreman may have to Sealed Air pursuant to
the Agreement. The Escrow Agent shall have no obligation to
investigate the application of any funds paid by it to any
person hereunder.
8. Nothing in this agreement shall impose on the Escrow Agent
any obligation to pay to Sealed Air out of the Escrow Fund
any amount which exceeds the aggregate liability of Foreman
to Sealed Air under the Agreement.
9. The Escrow Agent shall pay and apply the Escrow Fund in
accordance with:
(a) written directions signed jointly by Foreman and Sealed
Air; and
(b) the terms of any final judgment, order, declaration,
award or finding of a court or arbitrator of competent
jurisdiction, subject to any appeal or application for
review in respect of such judgment, order, declaration,
award or finding having been determined or the period
for filing of any appeal or application for review
having expired without an appeal or application for
review having been filed.
10. On the second anniversary of the date of Closing under the
Agreement, notice of which shall forthwith be given to the
Escrow Agent, the Escrow Agent shall pay the balance of the
Escrow Fund to Foreman or as Foreman may direct provided
that if, on or before such date, the Escrow Agent receives
written notice from Sealed Air that it has given notice to
Foreman of any claim(s) against Foreman (specifying the
amount of such claim(s)) under or in relation to the
Agreement, the Escrow Agent shall:
(a) hold that part of the balance of the Escrow Fund which
equals the amount of the notified claim(s) and apply it
in accordance with the provisions of clause 9, but upon
the basis that the amount from time to time held after
the expiry of such two year period shall not exceed the
aggregate amount of claims notified by Sealed Air and
remaining unresolved at that time; and
(b) pay the balance of the Escrow Fund to Foreman or as
Foreman may direct.
For the purpose of determining the amount to be retained by
the Escrow Agent pursuant to this clause, the Escrow Agent shall
be entitled to disregard claims notified by Sealed Air unless
proceedings for determination of such claim, whether before any
court, arbitrator or tribunal, are filed by Sealed Air not later
than the date which is 60 days after the second anniversary of
Closing under the Agreement.
11. The Escrow Agent shall not be obliged to ensure compliance
and shall have no liability in the event of non-compliance,
by Foreman or Sealed Air with the provisions of the
Agreement.
12. The Escrow Agent shall be entitled to apply any interest
accrued in respect of the Escrow Fund in or towards payment
of its fees and any costs or expenses incurred by it in
acting as escrow agent and performing its obligations under
this agreement. To the extent that such interest is
insufficient for full payment of the fees of the Escrow
Agent, Foreman and Sealed Air severally agree to pay to the
Escrow Agent the fees set out in the letter from the Escrow
Agent to Trigon Industries Limited dated 15 December 1994.
13. Foreman and Sealed Air shall severally indemnify the Escrow
Agent against any liability, costs and expenses incurred by
it in acting as escrow agent and performing its obligations
under this agreement.
14. The Escrow Agent shall be entitled to rely for all purposes
of this agreement upon any written notice or document
believed by it to be genuine and to have been communicated
or signed by or on behalf of the person by whom it purports
to have been communicated or signed.
15. The Escrow Agent may (without having to account to any other
party to this Agreement), engage in any kind of banking,
trust or other business with any party as if it were not the
Escrow Agent and may accept fees or other consideration for
services in connection with this Agreement or otherwise
without having to account to any other party to this
Agreement.
16. In the event of any dispute as to the obligations of the
Escrow Agent pursuant to this Agreement not resolved by
joint instructions from Foreman and Sealed Air the Escrow
Agent may at any time apply to the court for an order or
directions in relation to the execution and administration
of its powers and duties as the Escrow Agent considers
appropriate. Each of Foreman and Sealed Air severally
agrees to indemnify the Escrow Agent against all reasonable
expenses incurred by it in relation to any such application
or proceedings.
17. This agreement shall not be amended except by a document
signed by each of the parties.
18. This agreement shall be governed by and construed in
accordance with the laws of New Zealand and the parties
submit to the non-exclusive jurisdiction of the courts of
New Zealand in relation to all matters which arise out of or
concern this agreement or the Escrow Fund.
19. Any notices to the Escrow Agent pursuant to this agreement
shall be in writing and shall be delivered to the Escrow
Agent as follows:
The New Zealand Guardian Trust Company Limited
Corporate Trusts
105 Queen Street
(PO Box 1834)
Auckland
Attention: Mr B D Connor
Facsimile: 377 7474
20. In the event of any conflict or inconsistency between the
provisions of this agreement and the provisions of the
Agreement, the provisions of this agreement shall prevail to
the extent of such conflict or inconsistency.
21. This agreement may be executed in counterparts (including
facsimile copies) and, provided that each party has executed
a counterpart, the counterparts together shall constitute a
binding and enforceable agreement between the parties.
22. Each of Foreman and Sealed Air agree that they shall not
take any action which would have the effect, either directly
or indirectly, of delaying, or otherwise preventing the
operation of this agreement in accordance with its spirit
and intent.
23. For the purposes of this agreement, references to "Foreman"
are deemed to be references to James William Ferguson
Foreman and Diane Shirley Foreman jointly and each of them
severally, and references to "Sealed Air" are deemed to be
references to SAC and Holdings jointly and each of them
severally, unless in any case the context otherwise
requires.
EXECUTION
SIGNED by JAMES WILLIAM FERGUSON
FOREMAN in the presence of:
W F Foreman
Witness to signature:
(Signature of witness)
(Occupation)
(Address)
SIGNED by DIANE SHIRLEY FOREMAN in
the presence of:
D S Foreman
Witness to signature:
(Signature of witness)
(Occupation)
(Address)
SIGNED for and on behalf of
SEALED AIR CORPORATION
by:
Name:William V Hickey
Title:Senior Vice President-Finance
SIGNED for and on behalf of
SEALED AIR HOLDINGS (NZ)
LIMITED by:
Name:William V Hickey
Title:Director
EXECUTED under the name and seal of
THE NEW ZEALAND GUARDIAN
TRUST COMPANY LIMITED
in the presence of:
Authorised signatory
Authorised signatory
In the presence of:
Name:
Title:
Address:
The following Exhibits have been omitted. The
Registrant agrees to furnish supplementally a copy of any omitted Exhibit
to the Commission upon request.
Exhibit A Address of Selling Shareholders
Exhibit F Consulting Agreement
Exhibit G Opinion of Bell Gully Buddle Weir
EXHIBIT 4.1
CONSENT TO CREDIT AGREEMENT
CONSENT TO CREDIT AGREEMENT (this "Consent"), dated
as of December 7, 1994, among SEALED AIR CORPORATION, a
Delaware corporation (the "Company"), SEALED AIR B.V., a
corporation organized and existing under the laws of the
Netherlands, SEALED AIR LIMITED, a corporation organized and
existing under the laws of England (each a "Subsidiary
Borrower" and together with the Company, the "Borrowers", and
each a "Borrower"), BANKERS TRUST COMPANY, as Agent (the
"Agent") and the lenders party to the Credit Agreement
referred to below. All capitalized terms used herein and not
otherwise defined herein shall have the respective meanings
provided such terms in the Credit Agreement.
W I T N E S S E T H :
WHEREAS, the Borrowers, various lenders (the
"Banks") and the Agent are parties to a Credit Agreement,
dated as of June 8, 1994 (the "Credit Agreement");
WHEREAS, the Company has signed a letter of intent
to purchase all of the capital stock of Trigon Industries
Limited ("Trigon"), a corporation organized and existing
under the law of New Zealand, for an aggregate consideration
of up to NZ $100,000,000 (the "Trigon Acquisition");
WHEREAS, the Company has formed Sealed Air Holdings
(NZ) Limited, a Wholly-Owned Subsidiary of the Company
organized and existing under the laws of New Zealand ("Sealed
Air New Zealand") to consummate, in part, the Trigon
Acquisition;
WHEREAS, as part of the Trigon Acquisition, the
Company and certain of its other Wholly-owned Subsidiaries
may purchase certain assets of Trigon and its Subsidiaries;
WHEREAS, except for the modifications to the Credit
Agreement provided in Sections 1 and 2 below, the Trigon
Acquisition will be (and the Company shall otherwise satisfy
the requirements of) a Permitted Acquisition;
WHEREAS, as part of the consideration for the
Trigon Acquisition is common stock of the Company, the
Company has agreed to guarantee to the sellers of Trigon a
floor price of the Company's common stock (the "Common Stock
Price Guaranty");
WHEREAS, the Company has requested that the Banks
approve certain modifications to the Credit Agreement to
permit the Trigon Acquisition;
WHEREAS, the Company also has requested that the
Banks approve up to a $25,000,000 increase in the Total
Revolving Loan Commitment;
WHEREAS, the Company has further requested that the
Agent approve Sealed Air New Zealand (and any successor
thereto by merger) as a Subsidiary Borrower under the Credit
Agreement with a Sub-Limit of $50,000,000; and
WHEREAS, in connection with the foregoing, the
parties hereto wish to consent to certain modifications to
the Credit Agreement as herein provided;
NOW, THEREFORE, it is agreed:
1. Notwithstanding anything to the contrary
contained in Sections 8.01 and 8.04 of the Credit Agreement
and in addition to the Liens and Indebtedness otherwise
permitted by such Sections 8.01 and 8.04, the Banks hereby
agree that, in connection with the Trigon Acquisition, Liens
currently existing on the assets of Trigon and its
Subsidiaries and Indebtedness assumed in connection therewith
shall be permitted so long as (i) such Liens do not secure
Indebtedness in an aggregate principal amount greater than
(and such Indebtedness does not exceed in aggregate principal
amount) $18,000,000, (ii) such Liens and such Indebtedness
were not created in contemplation of such acquisition and
(iii) to the extent that any existing assets of Trigon and
its Subsidiaries are purchased by the Company or any of its
other Wholly-Owned Subsidiaries and such assets remain
pledged in support of such existing Indebtedness of Trigon,
there shall be no recourse against the Company or any such
other Wholly-owned Subsidiary in respect of such Indebtedness
other than against the assets so pledged, although the
Company may guaranty (as part of the $18,000,000 of
Indebtedness assumed in connection with the Trigon
Acquisition) up to $3,000,000 in aggregate principal amount
of capital lease obligations of a Domestic Subsidiary of
Trigon.
2. Notwithstanding anything to the contrary
contained in Section 8.01 of the Credit Agreement and in
addition to the Liens otherwise permitted by such Section
8.01, the Banks hereby agree that, in support of the
Company's Common Stock Price Guaranty, the Company or one of
its Subsidiaries may pledge to the sellers of Trigon certain
of the assets acquired as part of the Trigon Acquisition so
long as (i) no other assets of the Company or any of its
Subsidiaries are pledged in connection therewith and (ii)
such pledge only remains in effect for six months from the
date of the consummation of the Trigon Acquisition.
3. The Banks hereby approve up to a $25,000,000
increase in the Total Revolving Loan Commitment, it being
understood and agreed, however, that (i) the Total Revolving
Loan Commitment shall only be increased to the extent that
the Company has accepted a letter from a Bank indicating that
such Bank has agreed to increase its Revolving Loan
Commitment by the amount set forth in such letter, (ii) no
Bank's Revolving Loan Commitment may be increased without the
consent of such Bank, (iii) all such increases must be
effected by January 31, 1995, (iv) all such increases shall
be coordinated with, and shall be subject to the approval of,
the Agent and (v) at the time that any Bank's Revolving Loan
Commitment is so increased the Company and the Subsidiary
Borrowers shall deliver to such Bank a replacement Revolving
Note in the amount of such Bank's increased Revolving Loan
Commitment.
4. The Agent hereby agrees with the Company that
Sealed Air New Zealand (or any Wholly-owned Subsidiary of the
Company into which Sealed Air New Zealand may be merged)
shall become a Subsidiary Borrower under the Credit Agreement
and shall have a Sub-Limit of $50,000,000.
5. In order to induce the Banks to enter into
this Consent, each of the Borrowers hereby represents and
warrants on the Consent Effective Date (as defined below),
both before and after giving effect to this Consent, that
(a) no Default or Event of Default exists and (b) all of the
representations and warranties contained in the Credit
Agreement and the other Credit Documents are true and correct
in all material respects as though made on the Consent
Effective Date.
6. This Consent is limited as specified and shall
not constitute a modification, acceptance or waiver of any
other provision of the Credit Agreement or any other Credit
Document.
7. This Consent may be executed in any number of
counterparts and by the different parties hereto on separate
counterparts, each of which counterparts when executed and
delivered shall be an original, but all of which shall
together constitute one and the same instrument. A complete
set of counterparts shall be lodged with the Company and the
Agent.
8. THIS CONSENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
9. This Consent shall become effective on the
date (the "Consent Effective Date") when the Borrowers, the
Agent and the Required Banks shall have signed a counterpart
hereof (whether the same or different counterparts) and shall
have delivered (including by way of telecopier) the same to
the Agent at its Notice Office.
10. From and after the Consent Effective Date, all
references in the Credit Agreement and each of the Credit
Documents to the Credit Agreement, shall be deemed to be
references to the Credit Agreement as modified hereby.
IN WITNESS WHEREOF, each of the parties hereto
has
caused a counterpart of this Consent to be duly executed and
delivered as of the date first above written.
SEALED AIR CORPORATION
By /s/ William V. Hickey
Title: Senior Vice President -
Finance
SEALED AIR B.V.
By /s/ William V. Hickey
Title: Managing Director
SEALED AIR LIMITED
By /s/ William V. Hickey
Title: Attorney-in-Fact
BANKERS TRUST COMPANY,
Individually and as Agent
By /s/ Dana Klein
Title: Vice President
ABN AMRO BANK N.V. NEW YORK
BRANCH
By /s/ Blaise R. Heid
Title: Group Vice President
By /s/ John B. Logsdon
Title: Assistant Vice President
THE BANK OF NOVA SCOTIA
By /s/ Stephen Lockhart
Title: Senior Manager
COMPAGNIE FINANCIERE DE CIC ET
DE L'UNION EUROPEENNE
By /s/ Sean Mounier
Title: Vice President
By /s/ Marcus Edward
Title: Vice President
NATIONSBANK OF NORTH
CAROLINA, N.A.
By /s/ Scott A. Jackson
Title: Vice President
UNITED JERSEY BANK
By /s/ Lawrence F. Zema
Title: Vice President & Regional
Manager
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By__________________________
Title:
By
Title:
CREDIT LYONNAIS, NEW YORK
BRANCH
By /s/ Robert Ivosevich
Title: Senior Vice President
CORESTATES BANK, N.A.
By /s/ Thomas J. McDonnell
Title: Vice President
THE FIRST NATIONAL BANK OF
BOSTON
By /s/ M. Paula Zaiken
Title: Vice President
FLEET BANK N.A.
By /s/ Dorthy E. Bambach
Title: Senior Vice President
THE NORTHERN TRUST COMPANY
By /s/ Michael L. Bryan
Title: Vice President
TORONTO DOMINION (NEW YORK), INC.
By /s/ Debbie A. Greene
Title: Vice President
Accepted and Agreed:
SEALED AIR HOLDINGS
(NZ) LIMITED
By /s/ William V. Hickey
Title: Director
EXHIBIT 4.2
FIRST AMENDMENT TO CREDIT AGREEMENT
FIRST AMENDMENT TO CREDIT AGREEMENT (this
"Amendment"), dated as of January 3, 1995, among SEALED AIR
CORPORATION, a Delaware corporation (the "Company"), SEALED
AIR B.V., a corporation organized and existing under the laws
of the Netherlands, SEALED AIR LIMITED, a corporation
organized and existing under the laws of England, SEALED AIR
(HOLDINGS) NZ LIMITED, a corporation organized and existing
under the laws of New Zealand (each a "Subsidiary Borrower"
and together with the Company, the "Borrowers", and each a
"Borrower"), BANKERS TRUST COMPANY, as Agent (the "Agent")
and the lenders party to the Credit Agreement referred to
below. All capitalized terms used herein and not otherwise
defined herein shall have the respective meanings provided
such terms in the Credit Agreement.
W I T N E S S E T H :
WHEREAS, the Borrowers, various lenders (the
"Banks") and the Agent are parties to a Credit Agreement,
dated as of June 8, 1994 (as modified through the date
hereof, the "Credit Agreement");
WHEREAS, the Company has signed a letter of intent
to purchase all of the capital stock of Trigon Industries
Limited ("Trigon"), a corporation organized and existing
under the law of New Zealand, for an aggregate consideration
of up to NZ $100,000,000 (the "Trigon Acquisition");
WHEREAS, the Company has formed Sealed Air
(Holdings) NZ Limited, a Wholly-Owned Subsidiary of the
Company organized and existing under the laws of New Zealand
("Sealed Air New Zealand") to consummate, in part, the Trigon
Acquisition;
WHEREAS, as part of the Trigon Acquisition, the
Company and certain of its other Wholly-owned Subsidiaries
may purchase certain assets of Trigon and its Subsidiaries;
WHEREAS, the Banks have consented to the Trigon
Acquisition pursuant to the Consent to Credit Agreement,
dated as of December 7, 1994, among the Borrowers, the Banks
and the Agent (the " Trigon Consent");
WHEREAS, as part of the consideration for the
Trigon Acquisition is common stock of the Company, the
Company has agreed to (i) guarantee to the sellers of Trigon
(the "Sellers") a floor price of the Company's common stock
and (ii) repurchase those shares of common stock of the
Company delivered to the Sellers as part of the consideration
for the Trigon Acquisition in the event that a registration
statement for such shares of common stock shall not have been
declared effective by the SEC (collectively, the "Common
Stock Price Guaranty");
WHEREAS, the Company has requested that the Banks
approve a temporary increase in the sub-limit for the
issuance of Letters of Credit to allow the Company to issue a
Letter of Credit to the Sellers to support the Common Stock
Guaranty; and
WHEREAS, in connection with the foregoing, the
parties hereto wish to amend the Credit Agreement as herein
provided;
NOW, THEREFORE, it is agreed:
1. On and as of the First Amendment Effective
Date (as hereinafter defined) and immediately after giving
effect thereto, Section 2.01(c) of the Credit Agreement is
hereby amended by deleting the first clause (x) appearing
therein and inserting in lieu thereof the following new
clause (x):
"(x) $20,000,000, provided, that for the period
from the First Amendment Effective Date to and including
the one year anniversary of such date, the foregoing
amount may be increased to $50,000,000 so long as during
such period any amount in excess of $20,000,000 is used,
in lieu of a pledge of existing assets of Trigon, solely
to support the Common Stock Price Guaranty or".
2. On and as of the First Amendment Effective Date
and immediately after giving effect thereto, Section 10.01 of
the Credit Agreement is hereby amended by inserting in
appropriate alphabetical order the following new definitions:
"Common Stock Price Guaranty" shall have the meaning
provided in the recitals to the First Amendment.
"First Amendment Effective Date" shall have the
meaning provided in the First Amendment.
"First Amendment" shall mean the First Amendment to
this Agreement, dated as of January 3, 1995, among the
Borrowers, the Banks and the Agent.
"Trigon" shall have the meaning provided in the
recitals to the First Amendment.
3. In order to induce the Banks to enter into
this Amendment, each of the Borrowers hereby represents and
warrants on the First Amendment Effective Date, both before
and after giving effect to this Amendment, that (a) no
Default or Event of Default exists and (b) all of the repre-
sentations and warranties contained in the Credit Agreement
and the other Credit Documents are true and correct in all
material respects as though made on the First Amendment
Effective Date.
4. This Amendment is limited as specified and
shall not constitute a modification, acceptance or waiver of
any other provision of the Credit Agreement or any other
Credit Document.
5. This Amendment may be executed in any number
of counterparts and by the different parties hereto on
separate
counterparts, each of which counterparts when executed
and delivered shall be an original, but all of which shall
together constitute one and the same instrument. A complete
set of counterparts shall be lodged with the Company and the
Agent.
6. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
7. This Amendment shall become effective on the
date (the "First Amendment Effective Date") when the
Borrowers, the Agent and the Required Banks shall have signed
a counterpart hereof (whether the same or different
counterparts)
and shall have delivered (including by way of telecopier) the
same
to the Agent at its Notice Office.
8. From and after the First Amendment Effective
Date, all references in the Credit Agreement and each of the
Credit Documents to the Credit Agreement, shall be deemed to
be references to the Credit Agreement as modified hereby.
IN WITNESS WHEREOF, each of the parties hereto has
caused a counterpart of this Amendment to be duly executed
and delivered as of the date first above written.
SEALED AIR CORPORATION
By__________________________
Title:
SEALED AIR B.V.
By__________________________
Title:
SEALED AIR LIMITED
By__________________________
Title:
SEALED AIR (HOLDINGS) (NZ)
LIMITED
By__________________________
Title:
BANKERS TRUST COMPANY,
Individually and as Agent
By__________________________
Title:
ABN AMRO BANK N.V. NEW YORK
BRANCH
By__________________________
Title:
By__________________________
Title:
THE BANK OF NOVA SCOTIA
By__________________________
Title:
COMPAGNIE FINANCIERE DE CIC ET
DE L'UNION EUROPEENE
By__________________________
Title:
By__________________________
Title:
NATIONSBANK OF NORTH
CAROLINA, N.A.
By__________________________
Title:
UNITED JERSEY BANK
By__________________________
Title:
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By__________________________
Title:
By_________________________
Title:
CREDIT LYONNAIS, NEW YORK
BRANCH
By__________________________
Title:
CORESTATES BANK, N.A.
By__________________________
Title:
THE FIRST NATIONAL BANK OF
BOSTON
By___________________________
Title:
FLEET BANK N.A.
By___________________________
Title:
THE NORTHERN TRUST COMPANY
By____________________________
Title:
TORONTO DOMINION (NEW YORK), INC.
By____________________________
Title:
EXHIBIT 24
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration
Statements (Form S-3 No. 33-53751, No. 33-55739, No. 33-66716,
No. 33-68614; Form S-8 No. 33-41734) of Sealed Air Corporation of
our report dated 26 August 1994 (21 December 1994 as to certain
information in Notes 16, 23 and 24), with respect to the
consolidated financial statements of Trigon Industries Limited
as of 30 June 1994 and for the year ended included in this
Current Report (Form 8-K).
ERNST & YOUNG
Auckland, New Zealand Chartered Accountants
24 January 1995
