Exhibit 2.2
AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT
AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT, dated as of
October 7, 2004 (this "Amendment"), among Xxxxxx Packaging Company, L.P., a
Delaware limited partnership ("Buyer"), Xxxxxx Acquisition Corp., a Delaware
corporation and a wholly owned subsidiary of Buyer ("GPAC"), OI Plastic
Products FTS, Inc., a Delaware corporation ("Seller") and an indirect wholly
owned subsidiary of Xxxxx-Illinois, Inc., a Delaware corporation ("O-I"),
Xxxxx-Xxxxxxxx Plastic Products Inc., a Delaware corporation (the "Company")
and an indirect wholly owned subsidiary of O-I and O-I. Buyer, GPAC, Seller and
O-I are collectively referred to herein as the "Parties" and each individually
as a "Party."
W I T N E S S E T H:
WHEREAS, Buyer, Seller and O-I have previously entered into a
Stock Purchase Agreement, dated as of July 28, 2004 (as the same may be amended
from time to time, the "Stock Purchase Agreement"), pursuant to which O-I and
Seller have agreed to sell to Buyer, and Buyer has agreed to purchase from
Seller, all of the issued and outstanding shares of Capital Stock of the
Company, upon the terms and subject to the conditions set forth therein;
WHEREAS, in order to implement the Australian Restructuring
(as defined in the Stock Purchase Agreement) contemplated pursuant to Section
7.4(b) of the Stock Purchase Agreement, at or prior to the Closing Date, Seller
will cause the transfer of the ownership interests of (a) OI Australia Inc., a
Delaware corporation, Continental PET Holdings Pty. Ltd., a company limited by
shares incorporated in New South Wales, Australia, ACI America Holdings Inc., a
Delaware corporation, and ACI Ventures, Inc., a Delaware corporation, to Seller
or any Affiliate of Seller (other than the Company or any of its Subsidiaries)
and (b) Continental PET Technologies, Inc., a Delaware corporation, to the
Company;
WHEREAS, pursuant to Section 1.6 of the Stock Purchase
Agreement, Buyer, Xxxxxx Packaging Holdings B.V., a Netherlands besloten
vennootschap met beperkte aansprakelijkheid (private limited liability company)
("Xxxxxx BV"), a wholly owned subsidiary of GPAC, O-I, Seller and
Xxxxx-Illinois International B.V., a Netherlands besloten vennootschap met
beperkte aansprakelijkheid (private limited liability company) ("O-I
International BV"), an indirect wholly owned subsidiary of O-I, will enter into
a Securities Purchase Agreement, dated as of October __, 2004 (as the same may
be amended from time to time, the "Dutch Agreement"), pursuant to which O-I
will cause O-I International BV to sell to Xxxxxx BV, and Xxxxxx BV will
purchase from O-I International BV, all of the issued and outstanding shares of
Capital Stock of Xxxxx-Illinois Plastics B.V., a Netherlands besloten
vennootschap met beperkte aansprakelijkheid (private limited liability company)
("O-I BV"), upon the terms and subject to the conditions set forth therein;
WHEREAS, Buyer, Seller and O-I have determined not to enter
into the Resin Purchase Agreement as contemplated by Section 5.5(c) of the
Stock Purchase Agreement;
WHEREAS, O-I has failed to deliver the resignations of
certain officers and directors of the Company or its Subsidiaries as required
pursuant to Section 1.5(b)(iii) of the Stock Purchase Agreement and has
requested that Buyer waive such failure;
WHEREAS, pursuant to Section 10.7 of the Stock Purchase
Agreement, Buyer desires to assign to GPAC the right to acquire all of the
issued and outstanding shares of Capital Stock of the Company under the Stock
Purchase Agreement and the Parties desire to evidence such assignment as set
forth herein;
WHEREAS, pursuant to the Stock Purchase Agreement, Seller,
O-I and Buyer have agreed that Seller's Health Care Business shall be retained
by O- I or its Affiliates;
WHEREAS, the agreements listed on Exhibit A hereto (the
"HealthCare Agreements") relate to the Health Care Business and should have
been assigned to O-I or an Affiliate of O-I (other than the Company or any of
its Subsidiaries) before the Closing;
WHEREAS, the Health Care Agreements have not been assigned
and remain in the name of the Company;
WHEREAS, the Parties desire to cause such Health Care
Agreements to be assigned by the Company to Xxxxx-Illinois HealthCare Packaging
Inc., a Delaware corporation and an indirect wholly owned subsidiary of O-I
("O-I Healthcare"); and
WHEREAS, the Parties desire to amend the Stock Purchase
Agreement in such respects and to evidence certain other agreements among the
Parties as set forth herein.
NOW, THEREFORE, the Parties hereby agree as follows:
1. Defined Terms. Capitalized terms used herein but not
otherwise defined herein shall have the meanings ascribed to such terms in the
Stock Purchase Agreement.
2. Amendments to the Stock Purchase Agreement. The Stock
Purchase Agreement is hereby amended as set forth in this Section 2.
(a) Section 1.5 of the Stock Purchase Agreement is hereby
amended by deleting clause (b) (i) thereof.
(b) Section 1.5 of the Stock Purchase Agreement is hereby
further amended by adding the following clause (c) thereof:
"(c) At the Closing, O-I and Seller shall deliver, or cause
one or more of their Affiliates to deliver, to GPAC:
(i) stock certificates evidencing the Stock duly
endorsed, for transfer to GPAC or accompanied by
stock powers duly executed in blank and with any
required stock Transfer Tax stamps affixed thereto;
and
(ii) such other documents and instruments as counsel
for Buyer, GPAC and Seller mutually agree to be
reasonably necessary to consummate the transactions
described herein."
(c) Section 2.3(b) of the Stock Purchase Agreement is
hereby amended by adding the following to the end thereof:
"; provided, however, that OI Australia Inc., a Delaware
corporation, ACI America Holdings, Inc., a Delaware
corporation, ACI Ventures, Inc., a Delaware corporation, and
Continental PET Holdings Pty. Ltd., a company limited by
shares incorporated in New South Wales, Australia, shall also
be deemed to be Retained Subsidiaries."
(d) Section 2.3(c) of the Stock Purchase Agreement is
hereby amended by adding the following to the end thereof:
"; provided, however, that Continental PET Technologies,
Inc., a Delaware corporation ("CPT") shall be deemed to be a
"Specified Subsidiary. "
(e) Section 2.5(c) of the Stock Purchase Agreement is
hereby amended by adding the following to the end thereof:
"The stock certificates delivered to Buyer on the date hereof
represent all of the issued and outstanding shares of Capital
Stock of the Company and each of its Subsidiaries."
(f) Section 2.13 of the Stock Purchase Agreement is hereby
amended by adding the following clause (s) at the end thereof:
"(s) Seller has received an acceptance by the Internal
Revenue Service of its duly executed Form 8832 certifying
that the Company made a valid election effective December 14,
2000 under Treasury Regulation 301.7701-3(c) for PET
Technologies Limited, UK electing disregarded entity status
for U.S. income tax purposes. Seller has requested a copy of
such acceptance from the Internal Revenue Service and shall
provide to Buyer a copy of such acceptance promptly upon
receipt."
(g) Section 5.5 of the Stock Purchase Agreement is hereby
amended by deleting clause (c) thereof.
(h) Section 5.5(d) of the Stock Purchase Agreement is
hereby amended by adding the word "and" following the words "Transition
Services Agreement" therein and deleting the words "and the Resin Purchase
Agreement" therein.
(i) Section 5.13(b) of the Stock Purchase Agreement is
hereby amended by adding the words "or Buyer or any of its Affiliates"
following the words "transfer and deliver to the Company or any of its
Subsidiaries" therein.
(j) Section 8.2 of the Stock Purchase Agreement is hereby
amended by inserting the following parenthetical after the phrase "as of the
Closing Date" in the second sentence thereof:
"(or, if such benefits are initially provided under the
Transition Services Agreement, then as of the date such
benefits are no longer provided under the Transition Services
Agreement)"
(k) Section 8.11 of the Stock Purchase Agreement is hereby
amended by inserting the following sentences at the end thereof:
"Notwithstanding anything in this Article VIII to the
contrary, to the extent so provided in the Transition
Services Agreement, Business Employees shall continue to
participate in Parent Plans until December 31, 2004 and such
continued participation shall be considered to be in
compliance with and, not in breach of any of, Buyer's
obligations under Article VIII."
(l) Section 9.2(b) is hereby amended and restated in its
entirety as follows:
"Seller and O-I, jointly and severally, shall indemnify,
defend and hold the Buyer Indemnified Parties harmless from
and against all Losses asserted against, imposed upon or
incurred by the Buyer Indemnified Parties directly or
indirectly, in connection with, by reason of, relating to, or
resulting from any obligation or liability arising out of (i)
the assets, properties, liabilities, business or operations
of O-I and its Affiliates (other than the Company and its
Subsidiaries), other than Seller's ownership of the Stock,
(ii) the Health Care Agreements, and (iii) any actions taken
without the express written consent of Buyer by any
Non-Resigning Employee prior to the time such Non-Resigning
Employee resigns or is removed from office."
(m) Section 10.4(c) of the Stock Purchase Agreement is
hereby amended by inserting the words "or GPAC" following the word "Buyer"
therein.
3. Australian Restructuring. Pursuant to Section 7.4(b) of
the Stock Purchase Agreement and in order to effect the Australian
Restructuring contemplated thereby, at or prior to the Closing Date, Seller
shall, and O-I shall or shall cause Seller to, sell, convey, assign, transfer
and deliver: (i) to Seller or any of Seller's Affiliates (other than the
Company or any of its Subsidiaries), all of the issued and outstanding shares
of Capital Stock of (1) OI Australia Inc., a Delaware corporation, (2)
Continental PET Holdings Pty. Ltd., a company limited by shares incorporated in
New South Wales, Australia, (3) ACI America Holdings Inc., a Delaware
corporation, and (4) ACI Ventures, Inc., a Delaware corporation, and (ii) to
the Company, free and clear of all Liens, all of the issued and outstanding
shares of Capital Stock of CPT.
4. Dutch Acquisition.
(a) Pursuant to Section 1.6 of the Stock Purchase
Agreement, Buyer, GPAC, Xxxxxx BV, O-I, Seller and O-I International BV, will
enter into the Securities Purchase Agreement, dated as of October __, 2004, in
substantially the form attached as Exhibit B hereto (as the same may be amended
from time to time, the "Dutch Agreement"), pursuant to which O-I will cause O-I
International BV to sell to Xxxxxx BV, and Xxxxxx BV will purchase from O-I
International BV, as part of the Purchase Price and for no additional
consideration, all of the issued and outstanding shares of Capital Stock of O-I
BV, upon the terms and subject to the conditions set forth therein.
(b) Buyer, GPAC, O-I and Seller agree that for all
purposes under the Stock Purchase Agreement, (i) the Dutch Agreement shall be
deemed to be a "Foreign Subsidiary Purchase Agreement" and an "Additional
Agreement" as such terms are used in the Stock Purchase Agreement, and (ii) O-I
BV shall be deemed to be a "Subsidiary" of the Company as such term are used in
the Stock Purchase Agreement.
5. Assignment to GPAC. Buyer hereby assigns to GPAC (the
"Assignment"), all of its rights under the Stock Purchase Agreement to acquire
all of the issued and outstanding shares of Capital Stock of the Company;
provided, however, that Buyer shall remain liable to perform all of its
obligations under the Stock Purchase Agreement, including the obligations to
fund the full amount of the Purchase Price. GPAC hereby accepts the Assignment
and agrees to be bound by the terms of the Stock Purchase Agreement to the
extent of the Assignment as if it were an original signatory thereto.
6. Non-Resigning Employees. Exhibit C hereto sets forth a
list of existing officers and directors of the Company and each of its
Subsidiaries that have not resigned or been removed in accordance with the
provisions of Section 1.5(b)(iii) of the Stock Purchase Agreement (the
"Non-Resigning Employees"). In consideration of the agreements herein set
forth, Buyer hereby waives the failure of O-I and Seller to comply with their
obligations under Section 1.5(b) of the Stock Purchase Agreement. Buyer agrees
to use its efforts to remove the Non-Resigning Employees as soon after the
Closing as is reasonably practicable.
7. Assignment of Health Care Agreements.
(a) Effective as of the date hereof, the Company hereby
assigns to O-I Healthcare all of the Company's rights and interests under the
Health Care Agreements, and O-I Healthcare hereby accepts such assignment.
(b) Effective as of the date hereof, O-I Healthcare hereby
accepts and assumes all obligations of the Company under the Health Care
Agreements.
8. Miscellaneous. This Amendment is limited precisely as
written and shall not be deemed to be an amendment to any other term or
condition of the Stock Purchase Agreement or any of the documents referred to
therein. Wherever the Stock Purchase Agreement is referred to in the Stock
Purchase Agreement or in any other agreements, documents and instruments, such
reference shall be to the Stock Purchase Agreement, as amended hereby. Except
as specifically amended hereby, the terms and conditions of the Stock Purchase
Agreement shall remain in full force and effect.
9. Counterparts. This Amendment may be executed in any number
of counterparts (including by means of facsimile), each of which shall be
deemed to be an original, and all of which together shall be deemed to be one
and the same instrument. Delivery of an executed counterpart of a signature
page to this Amendment by facsimile shall be effective as delivery of a
manually executed counterpart of this Amendment.
10. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the Laws of the State of New York.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, each Party has duly executed and
delivered this Amendment as of the date first above written.
XXXXXX PACKAGING COMPANY, L.P.
By: GPC OPCO GP LLC, ITS GENERAL PARTNER
/s/Xxxx X. Xxxxxxxx
By:______________________________
Name: Xxxx X. Xxxxxxxx
Title: Chief Financial Officer, Treasurer
and Secretary
XXXXXX PACKAGING ACQUISITION CORP.
/s/Xxxx X. Xxxxxxxx
By:______________________________
Name: Xxxx X. Xxxxxxxx
Title: Chief Financial Officer,
Treasurer and Secretary
OI PLASTIC PRODUCTS FTS, INC.
/s/Xxxxx X. Xxxxxxx
By:______________________________
Name: Xxxxx X. Xxxxxxx
Title: Vice President
XXXXX-XXXXXXXX PLASTIC PRODUCTS INC.
/s/Xxxxx X. Xxxxxxx
By:______________________________
Name: Xxxxx X. Xxxxxxx
Title: Vice President
XXXXX-ILLINOIS, INC.
/s/Xxxxx X. Xxxxxxx
By:______________________________
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President, General
Counsel and Secretary
Exhibit A
HEALTH CARE AGREEMENTS
Agreement by and between Xxxxxx Packaging and Xxxxx-Xxxxxxxx Plastics Products
Inc. re exclusivity for the BIDS closure, dated March 10, 2000
License Agreement by and between Plastics and The Dow Chemical Company, dated
January 16, 1998
License Agreement by and between Plastics and Reckitt & Xxxxxx Inc., dated
September 21, 1994
International License Agreement by and between Toyo Seikan Kaisha, Limited and
Plastics, dated July 1, 1987
License Termination Agreement by and between Plastics and Carnaudmetalbox S.A.,
dated June 29, 1996 and related correspondence with United Closures & Plastics
PLC - Norwich
Supply Agreement by and between Bayer Corporation and Xxxxx-Xxxxxxxx Plastics
Products Inc., on behalf of itself and on behalf of Xxxxx-Illinois Closure Inc.
and Xxxxx-Xxxxxxxx Glass Container Inc., dated May 1, 1998
Supply Agreement by and between Roche Diagnostics Corporation and Plastics,
effective as of May 21, 2001
Supply Agreement by and between Alcon Manufacturing Limited and Plastics, on
behalf of itself, O-I Xxxxxxxx Plastics and Closure, dated March 1, 1992
Agreement by and between Xxxxxx Laboratories and Plastics, dated September 30,
1997
Supply Agreement by and between Forest Laboratories and Xxxxx-Illinois,
effective as of July 1, 2002
Business Agreement by and between American Pharmaceutical Partners and
Xxxxx-Xxxxxxxx, dated January 9, 2001
Supply Agreement by and between Plastics and American Home Products
Corporation, acting by and through its Wyeth-Ayerst Laboratories Division,
(undated), 2000 (unsigned)
Supply Agreement by and between Steris Corporation and Plastics, dated March 1,
2001
Supply Agreement by and between Pfizer Inc. and Plastics and Closure, dated
January 1, 2001
Packaging Supply Agreement by and between Merck & Co. Inc. and Plastics and
Closure, dated December 12, 2001
Supply Agreement by and between Bausch & Lomb Incorporated and Plastics and
Closure, dated March 28, 2002
Agreement between Plastics and TricorBraun, dated May 3, 2002 (unsigned)
Supply Agreement by and between Xxxxxx Laboratories, Xxxx Products Division and
Plastics, dated July 28, 2004 (unsigned)
Distribution Agreement by and between Plastics and All Pak, dated October 18,
2000
Exhibit B
DUTCH AGREEMENT
SECURITIES PURCHASE AGREEMENT
among
XXXXXX PACKAGING HOLDINGS B.V.,
XXXXXX PACKAGING COMPANY, L.P.,
XXXXX-ILLINOIS INTERNATIONAL B.V.,
OI PLASTIC PRODUCTS FTS, INC.
and
XXXXX-ILLINOIS, INC.
Dated as of October __, 2004
TABLE OF CONTENTS
Page
ARTICLE I
Definitions
1.1 Definitions........................................................1
ARTICLE II
THE Purchase; CERTAIn related matters
2.1 The Purchase.......................................................2
2.2 Purchase Price.....................................................2
2.3 Closing............................................................2
2.4 Dutch Closing Deliveries...........................................3
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF O-I AND SELLER
3.1 Due Organization...................................................3
3.2 Authorization and Validity of this Agreement.......................3
3.3 No Conflict........................................................4
3.4 Capitalization; Ownership of Stock.................................4
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF buyer
4.1 Due Organization...................................................5
4.2 Authorization and Validity of this Agreement.......................5
4.3 No Conflict........................................................5
ARTICLE V
COVENANTS
5.1 Indemnification....................................................5
ARTICLE VI
CONDITIONS PRECEDENT
6.1 Conditions Precedent to Obligations of Parties.....................6
ARTICLE VII
Miscellaneous
7.1 Survival...........................................................6
7.2 Termination........................................................6
7.3 Fees and Expenses..................................................6
7.4 Notices............................................................6
7.5 Entire Agreement...................................................7
7.6 No Third Party Beneficiaries.......................................8
7.7 Assignability......................................................8
7.8 Amendment and Modification; Waiver.................................8
7.9 Section Headings; Table of Contents................................8
7.10 Severability.......................................................9
7.11 Counterparts.......................................................9
7.12 Enforcement........................................................9
7.13 Choice of Forum....................................................9
7.14 Waiver of Jury Trial...............................................9
7.15 Governing Law.....................................................10
7.16 Interpretation....................................................10
7.17 English Version and Documents.....................................10
EXHIBITS
Exhibit A:........Form of Deed of Transfer
SECURITIES PURCHASE AGREEMENT (this "Agreement"), dated as of October
___, 2004, among (a) Xxxxxx Packaging Holdings B.V., a Netherlands besloten
vennootschap met beperkte aansprakelijkheid (private limited liability
company) ("Xxxxxx BV"), a wholly owned subsidiary of Xxxxxx Packaging Company,
L.P., a Delaware limited partnership ("Xxxxxx"), (b) Xxxxxx, (c)
Xxxxx-Illinois International B.V., a Netherlands besloten vennootschap met
beperkte aansprakelijkheid (private limited liability company) ("O-I
International BV"), a wholly owned subsidiary of Xxxxx-Illinois, Inc., a
Delaware corporation ("O-I"), (d) O-I and (e) OI Plastic Products FTS, Inc., a
Delaware corporation ("O-I Plastic" and, together with O-I International BV
and O-I, the "Seller Parties") and a wholly owned subsidiary of O-I. Xxxxxx
BV, Xxxxxx, O-I International BV, O-I Plastic and O-I are collectively
referred to herein as the "Parties" and each individually as a "Party."
W I T N E S S E T H:
WHEREAS, Xxxxxx, O-I Plastic and O-I have entered into a Stock
Purchase Agreement, dated as of July 28, 2004, as amended by the Amendment No.
1 thereto, dated as of on October 7, 2004, among Xxxxxx, Xxxxxx Packaging
Acquisition Corp., a Delaware corporation, O-I Plastic and O-I (as amended and
as may be further amended, modified or supplemented from time to time, the
"Stock Purchase Agreement"), pursuant to which O-I and O-I Plastic have agreed
to sell to Xxxxxx, and Xxxxxx has agreed to purchase from O-I Plastic, all the
issued and outstanding shares of Capital Stock of Xxxxx-Xxxxxxxx Plastic
Products Inc., a Delaware corporation ("Xxxxx-Xxxxxxxx"), upon the terms and
subject to the conditions set forth therein;
WHEREAS, O-I International BV owns 185 shares of common stock, par
value (euro)100.00 per share, of Xxxxx-Illinois Plastics B.V., a Netherlands
besloten vennootschap met beperkte aansprakelijkheid (private limited
liability company) ("O-I BV"), constituting all of the issued and outstanding
shares of Capital Stock of O-I BV (all such shares being referred to herein as
the "Shares");
WHEREAS, pursuant to Section 1.6 of the Stock Purchase Agreement, O-I
desires to cause O-I International BV to sell to Xxxxxx BV, and Xxxxxx desires
to cause Xxxxxx BV to purchase from O-I International BV, the Shares upon the
terms and subject to the conditions set forth in this Agreement; and
WHEREAS, each Party has all requisite corporate or other power and
authority to enter into this Agreement and, upon the terms and subject to the
conditions in this Agreement, consummate the transactions contemplated hereby.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth in this
Agreement, and for other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the Parties, intending to be
legally bound, hereby agree as follows:
ARTICLE I
Definitions
1.1 Definitions. Capitalized terms used in this Agreement but not
otherwise defined herein shall have the meanings ascribed to such terms in the
Stock Purchase Agreement. Xxxxxx, O-I and O-I Plastic agree that for all
purposes under the Stock Purchase Agreement, (a) this Agreement shall be
deemed to be a "Foreign Subsidiary Purchase Agreement" and an "Additional
Agreement" as such terms are used in the Stock Purchase Agreement and (b) O-I
BV shall be deemed to be a "Subsidiary" of Xxxxx-Xxxxxxxx as such terms are
used in the Stock Purchase Agreement.
ARTICLE II
THE Purchase; CERTAIn related matters
2.1 The Purchase. Upon the terms and subject to the conditions set
forth in this Agreement, at the Closing, O-I International BV shall, and O-I
shall cause O-I International BV to, sell, convey, assign, transfer and
deliver to Xxxxxx BV the Shares representing the entire issued and outstanding
shares of Capital Stock of O-I BV, free and clear of all Liens.
2.2 Purchase Price. Pursuant to Section 1.6 of the Stock Purchase
Agreement, in consideration for the Shares as part of the Purchase Price and
for no additional consideration, the portion of the Purchase Price (which
portion may be adjusted pursuant to Section 1.3 of the Stock Purchase
Agreement) allocable to O-I International BV for the Shares shall be equal to
U.S. $20.3 million (the "Allocation"). The Parties shall (a) be bound by the
Allocation for purposes of determining any Taxes, (b) timely file all forms
and Tax Returns required to be filed in connection with the Allocation, (c)
prepare and file, and cause its Affiliates to prepare and file, its Tax
Returns on a basis consistent with the Allocation and (d) take no position,
and cause its Affiliates to take no position, inconsistent with the Allocation
on any applicable Tax Return, in any proceeding before any Taxing authority or
in any report made for Tax purposes. In the event that the Allocation is
disputed by any Taxing authority, the Party receiving notice of the dispute
shall promptly notify and consult with the other Party and keep the other
Party reasonably apprised of material developments concerning resolution of
such dispute.
2.3 Closing. The closing of the transactions contemplated hereby (the
"Dutch Closing") shall take place concurrent with the execution and delivery
of this Agreement and the Closing, unless another date, time or place is
agreed to in writing by the Parties. At the Dutch Closing, the Parties shall
cause the Shares to be transferred through the execution of a notarial deed of
transfer in the form attached hereto as Exhibit A (the "Deed of Transfer")
before a civil law notary at the office of Stibbe in Amsterdam, The
Netherlands, or such notary's substitute or successor in office. The Deed of
Transfer shall contain the acknowledgement by O-I BV of such transfer. The
Dutch Closing shall be deemed effective as of 12:01 a.m., New York City time,
on the Closing Date.
2.4 Dutch Closing Deliveries.
(a) Pursuant to the terms of this Agreement and concurrent with the
execution and delivery of this Agreement, Xxxxxx and Xxxxxx BV shall deliver,
or cause one or more of their Affiliates to deliver, to O-I, O-I Plastic or
O-I International BV, as applicable, such documents and instruments as counsel
for Xxxxxx BV and O-I International BV mutually agree to be reasonably
necessary to consummate the transactions described herein.
(b) Pursuant to the terms of this Agreement and concurrent with the
execution and delivery of this Agreement, the Seller Parties shall deliver, or
cause one or more of their Affiliates to deliver, to Xxxxxx or Xxxxxx BV, as
applicable, the following:
(i) the original shareholders' register of O-I BV;
(ii) a duly executed receipt acknowledging receipt by O-I
International BV of consideration for the Shares pursuant to Section
2.2; and
(iii) such other documents and instruments as counsel for
Xxxxxx BV and O-I International BV mutually agree to be reasonably
necessary to consummate the transactions described herein.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF O-I AND SELLER
The Seller Parties, jointly and severally, hereby represent and
warrant to Xxxxxx and Xxxxxx BV as follows:
3.1 Due Organization. O-I International BV is a besloten vennootschap
met beperkte aansprakelijkheid (private limited liability company) duly
organized and validly existing under the Laws of The Netherlands. O-I
International BV has all requisite corporate or other power and authority to
enter into this Agreement and to perform its obligations hereunder.
3.2 Authorization and Validity of this Agreement. The execution,
delivery and performance by O-I International BV of this Agreement and the
consummation by it of the transactions contemplated hereby have been duly
authorized by its board of managing directors and its general meeting of
shareholders and all other necessary corporate and other action on the part of
O-I International BV, and no other corporate or other action on the part of
O-I International BV is necessary for the execution, delivery and performance
by O-I International BV of this Agreement and the consummation by it of the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by O-I International BV and, assuming the due
authorization, execution and delivery by the other Parties, is a legal, valid
and binding obligation of O-I International BV, enforceable against O-I
International BV in accordance with its terms, except to the extent that its
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other Laws relating to or affecting creditors' rights generally
and by general equity principles.
3.3 No Conflict. The execution, delivery and performance by O-I
International BV of this Agreement and the consummation by O-I International
BV of the transactions contemplated hereby: (a) do not violate or conflict
with in any material respect any provision of Law applicable to O-I
International BV or O-I BV or any of their respective properties or assets;
(b) do not require any consent or approval of, or filing with or notice to,
any Governmental Authority under any provision of Law applicable to O-I
International BV or O-I BV; (c) do not violate or conflict with any provision
of the articles of association or similar organizational documents of O-I
International BV or O-I BV; and (d) do not require any consent, approval or
notice under, and do not conflict with, nor will result in the breach or
termination of, or constitute (or but for the passage of time, the giving of
notice or both would constitute) a default or give rise to any right of
payment under, or result (or but for the passage of time, the giving of notice
or both would result) in the acceleration of the performance by O-I
International BV or O-I BV under, or the termination, amendment or
cancellation of, any indenture, mortgage, deed of trust, lease, license,
franchise, contract, agreement or any other similar instrument or obligation
to which O-I International BV or O-I BV is a party or by which either of them,
or any of their respective properties or assets are bound or encumbered.
3.4 Capitalization; Ownership of Stock.
(a) The authorized Capital Stock of O-I BV consists of 900 shares of
common stock, par value (euro)100.00 per share, 185 of which are outstanding
as of the date hereof. O-I International BV is the record and beneficial owner
of the Shares. The Shares represent all of the issued and outstanding shares
of Capital Stock of O-I BV and there are no other authorized shares of or
other interests in the Capital Stock of O-I BV. O-I International BV holds the
Shares free and clear of all Liens. The Shares have been duly authorized and
validly issued and are fully paid and nonassessable. Upon the consummation of
the Purchase, Xxxxxx BV will have good and marketable title to the Shares,
free and clear of all Liens.
(b) There are no (i) outstanding options, warrants, calls, voting
agreements or other rights of any kind relating to the sale, transfer,
issuance or voting of any Capital Stock of any class of, or other ownership
interests in, O-I BV that have been issued, granted or entered into by O-I
International BV or O-I BV or any of their Affiliates or any securities
convertible into or evidencing the right to purchase any Capital Stock of any
class of, or other ownership interests in, O-I BV, (ii) shares of the Capital
Stock of O-I BV reserved for any purpose, (iii) preemptive or similar rights
with respect to the issuance, sale or other transfer (whether present, past or
future) of the Capital Stock of O-I BV or (iv) agreements or other obligations
(contingent or otherwise) that may require O-I BV to repurchase, redeem or
otherwise acquire any of its Capital Stock.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF buyer
Xxxxxx BV hereby represents and warrants to the Seller Parties as
follows:
4.1 Due Organization. Xxxxxx BV is a besloten vennootschap met
beperkte aansprakelijkheid (private limited liability company) duly organized
and validly existing under the Laws of The Netherlands. Xxxxxx BV has all
requisite corporate or other power and authority to enter into this Agreement
and to perform its obligations hereunder.
4.2 Authorization and Validity of this Agreement. The execution,
delivery and performance by Xxxxxx BV of this Agreement and the consummation
by it of the transactions contemplated hereby have been duly authorized by its
board of managing directors and all other necessary corporate or other action
on the part of Xxxxxx BV, and no other corporate and other action on the part
of Xxxxxx BV is necessary for the execution, delivery and performance by
Xxxxxx BV of this Agreement and the consummation by it of the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by Xxxxxx BV and, assuming the due authorization, execution and
delivery by the other Parties, is a legal, valid and binding obligation of
Xxxxxx BV, enforceable against Xxxxxx BV in accordance with its terms, except
to the extent that its enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other Laws relating to or affecting
creditors' rights generally and by general equity principles.
4.3 No Conflict. The execution, delivery and performance by Xxxxxx BV
of this Agreement and the consummation by Xxxxxx BV of the transactions
contemplated hereby: (a) do not violate or conflict with in any material
respect any provision of Law applicable to Xxxxxx BV; (b) do not require any
consent or approval of, or filing with or notice to, any Governmental
Authority under any provision of Law applicable to Xxxxxx BV; (c) do not
violate or conflict with any provision of the articles of association or
similar organizational documents of Xxxxxx BV; and (d) do not require any
consent, approval or notice under, and do not conflict with, nor will result
in the breach or termination of, or constitute (or but for the passage of
time, the giving of notice or both would constitute) a default or give rise to
any right of payment under, or result (or but for the passage of time, the
giving of notice or both would result) in the acceleration of the performance
by Xxxxxx BV under, or the termination, amendment or cancellation of, any
indenture, mortgage, deed of trust, lease, license, franchise, contract,
agreement or any other similar instrument or obligation to which Xxxxxx BV is
a party or by which it, or any of its properties or assets are bound or
encumbered.
ARTICLE V
COVENANTS
5.1 Indemnification.
(a) The obligations of O-I and O-I Plastic to indemnify the Buyer
Indemnified Parties under Article IX of the Stock Purchase Agreement arising
out of or resulting from any breaches of their respective representations and
warranties hereunder shall not be subject to the Basket and Cap.
(b) The obligations of Xxxxxx to indemnify the Seller Indemnified
Parties under Article IX of the Stock Purchase Agreement arising out of or
resulting from any breaches of its representations and warranties hereunder
shall not be subject to the Basket and Cap.
ARTICLE VI
CONDITIONS PRECEDENT
6.1 Conditions Precedent to Obligations of Parties. The respective
obligations of each of the Parties are subject to the satisfaction or waiver,
at or prior to the Closing Date, of each of the conditions precedent set forth
in Article VI of the Stock Purchase Agreement in accordance with the terms
thereof.
ARTICLE VII
Miscellaneous
7.1 Survival. The representations and warranties of the Parties set
forth in Articles III and IV shall survive indefinitely.
7.2 Termination. This Agreement will terminate and the transactions
contemplated hereby will be abandoned immediately, without any further action
of any Party, upon any termination of the Stock Purchase Agreement in
accordance with its terms.
7.3 Fees and Expenses. Whether or not the transactions contemplated
hereby are consummated, except as expressly provided herein, each of the
Parties shall pay its own fees and expenses incident to the negotiation,
preparation, execution and performance of this Agreement, including attorneys',
accountants' and other advisors' fees and the fees and expenses of any agent,
broker, finder, investment banker, financial advisor or agent retained by such
Party in connection with the transactions contemplated by this Agreement.
7.4 Notices. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if delivered personally
or mailed, certified or registered mail with postage prepaid, or sent by
telegram or facsimile, as follows:
(a) if to a Seller Party, to it at:
c/o Owens-Illinois, Inc.
One Seagate
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
with a copy (which shall not constitute notice) to:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxx, Esq.
(b) if to Xxxxxx BV or Xxxxxx, to it at:
c/x Xxxxxx Packaging Company, L.P.
0000 Xxxxxxxx Xxxxxx Xxxx
Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxx, Esq.
Xxxxxxx X. Xxxxxxxxx, Esq.
or to such other Person or address as a Party shall specify by notice in
writing to the other Parties. All such notices, requests, demands, waivers and
communications shall be deemed to have been received on the date of personal
delivery or on the third Business Day after the mailing thereof or, in the
case of notice by facsimile, when receipt thereof is confirmed by telephone.
7.5 Entire Agreement. This Agreement and the Stock Purchase Agreement
(including the Deed of Transfer, Schedules, O-I Disclosure Schedule, Buyer
Disclosure Schedule, Exhibits, Annexes, Additional Agreements and documents
referred to herein and therein) constitute the entire agreement between the
Parties and supersede all prior agreements and understandings, oral and
written, between the Parties with respect to the subject matter hereof.
7.6 No Third Party Beneficiaries. This Agreement shall inure to the
benefit of and be binding upon the Parties and their respective successors and
permitted assigns.
7.7 Assignability. This Agreement or any of the rights, interests or
obligations hereunder shall not be assigned by any of the Parties without the
prior written consent of the other Parties hereto; provided that Xxxxxx BV may,
without the prior written consent of the Seller Parties, assign any or all of
its rights and/or delegate any or all of its obligations to a direct or
indirect wholly owned subsidiary or other Affiliate of Xxxxxx BV; provided,
however, that notwithstanding any such assignment, Xxxxxx BV shall remain
liable to perform all of its obligations hereunder. Notwithstanding anything to
the contrary set forth herein, Xxxxxx, Xxxxxx BV and O-I BV may assign and
transfer to any entity providing financing for the transactions contemplated by
this Agreement or by the Stock Purchase Agreement (or any refinancing of such
financing) as security for such financing all of the interest, rights and
remedies of Xxxxxx BV and O-I BV with respect to this Agreement. The Seller
Parties hereby expressly consent to such assignment. Any such assignment will
be made for collateral security purposes only and will not release or discharge
Xxxxxx BV from any obligations it may have pursuant to this Agreement.
Notwithstanding anything to the contrary set forth herein, Xxxxxx, Xxxxxx BV
and O-I BV may (i) authorize and empower such financing sources to assert,
either directly or on behalf of Xxxxxx, Xxxxxx BV or O-I BV, any claims Xxxxxx,
Xxxxxx BV or O-I BV may have against a Seller Party under this Agreement and
(ii) make, constitute and appoint one agent bank in respect of such financing
(and all officers, employees and agents designated by such agent) as the true
and lawful attorney and agent-in-fact of Xxxxxx, Xxxxxx BV and O-I BV for the
purpose of enabling the financing sources to assert and collect any such
claims. Any purported assignment or delegation in violation of this Section 6.6
shall be null and void.
7.8 Amendment and Modification; Waiver. Subject to applicable Law,
this Agreement may be amended, modified and supplemented by a written
instrument authorized and executed on behalf of the Parties at any time with
respect to any of the terms contained herein. No waiver by any Party of any of
the provisions hereof or any default, misrepresentation or breach of warranty
or covenant hereunder, whether intentional or not, shall be effective and valid
unless explicitly set forth in writing and executed by the Party so waiving.
Except as provided in the preceding sentence, no action taken pursuant to this
Agreement, including any investigation by or on behalf of any Party, shall be
deemed to constitute a waiver by the Party taking such action of compliance
with any representations, warranties, covenants or agreements contained herein
and in any documents delivered or to be delivered pursuant to this Agreement
and in connection with the Dutch Closing. The waiver by any Party of any
default, misrepresentation or breach of warranty or covenant hereunder shall
not operate or be construed as a waiver of any other prior or subsequent
default, misrepresentation or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence.
7.9 Section Headings; Table of Contents. The section headings
contained in this Agreement and the table of contents to this Agreement are
inserted for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
7.10 Severability. If any term or provision of this Agreement shall be
declared by any court of competent jurisdiction to be invalid, illegal, void or
unenforceable, all other terms and provisions of this Agreement shall not be
affected and shall remain in full force and effect, and the validity and
enforceability of the offending term or provision shall not be affected in any
other situation or in any other jurisdiction.
7.11 Counterparts. This Agreement may be executed in any number of
counterparts (including by means of facsimile), each of which shall be deemed
to be an original, and all of which together shall be deemed to be one and the
same instrument. Delivery of an executed counterpart of a signature page to
this Agreement by facsimile shall be effective as delivery of a manually
executed counterpart of this Agreement.
7.12 Enforcement. The Parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached.
It is accordingly agreed that the Parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any court of the United States
located in the State of New York, this being in addition to any other remedy to
which they are entitled at law or in equity.
7.13 Choice of Forum. Each Party (a) consents to submit itself to the
personal jurisdiction of the U.S. District Court for the Southern District of
New York or any court of the State of New York located in such district in the
event any dispute arises out of this Agreement or any of the transactions
contemplated hereby, (b) agrees that it will not attempt to deny or defeat such
personal jurisdiction or venue by motion or other request for leave from any
such court and (c) agrees that it will not bring any action relating to this
Agreement or any of the transactions contemplated hereby in any court other
than such courts sitting in the State of New York.
7.14 Waiver of Jury Trial. THE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL
BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY, WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. THE
PARTIES AGREE THAT ANY OF THEM MAY FILE A COPY OF THIS SECTION 6.13 WITH ANY
COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR AGREEMENT
AMONG THE PARTIES IRREVOCABLY TO WAIVE TRIAL BY JURY AND THAT ANY ACTION OR
PROCEEDING WHATSOEVER BETWEEN THEM RELATING TO THIS AGREEMENT OR ANY
TRANSACTION CONTEMPLATED HEREBY SHALL INSTEAD BE TRIED IN A COURT OF COMPETENT
JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
7.15 Governing Law. This Agreement and the rights and duties of the
Parties hereunder shall be governed by, and construed in accordance with, the
Laws of the State of New York.
7.16 Interpretation. When a reference is made in this Agreement to an
Article or Section, such reference shall be to an Article or Section of this
Agreement unless otherwise indicated. Whenever the words "include," "includes"
or "including" are used in this Agreement, they shall be deemed to be followed
by the words "without limitation." The words "hereof," "herein" and "hereunder"
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement. All
terms defined in this Agreement shall have the defined meanings when used in
any certificate or other document made or delivered pursuant hereto unless
otherwise defined therein. The definitions contained in this Agreement are
applicable to the singular as well as the plural forms of such terms and to the
masculine as well as to the feminine and neuter genders of such term. Any
agreement, instrument or statute defined or referred to herein or in any
agreement or instrument that is referred to herein means such agreement,
instrument or statute as from time to time amended, modified or supplemented,
including (in the case of agreements or instruments) by waiver or consent and
(in the case of statutes) by succession of comparable successor statutes and
references to all attachments thereto and instruments incorporated therein.
References to a Person are also to its permitted successors and permitted
assigns.
7.17 English Version and Documents. The English language version of
this Agreement shall be the official version of this Agreement, and in the
event of any inconsistency between the English language version of this
Agreement and any translation of this Agreement into another language, the
English language version of this Agreement shall prevail. All documents,
certificates and instruments to be delivered under or pursuant to any provision
of this Agreement by any of the Parties shall be in the English language or
accompanied by a certified English translation. The English language version of
any such documents, certificates and instruments shall be the prevailing
version in the event of any inconsistency between the English language version
and any other language version of such document.
[Remainder of page intentionally left blank]
WHEREOF, each Party has duly executed and delivered this Agreement as
of the date first above written.
XXXXXX PACKAGING HOLDINGS B.V.
/s/Xxxx X. Xxxxxxxx
By:______________________________
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
XXXXXX PACKAGING COMPANY, L.P.
By: GPC OPCO GP LLC, its General Partner
/s/Xxxx X. Xxxxxxxx
By:______________________________
Name: Xxxx X. Xxxxxxxx
Title: Chief Financial Officer
Treasurer and Secretary
XXXXX-ILLINOIS INTERNATIONAL B.V.
/s/Xxxxx X. Xxxxxxx
By:______________________________
Name: Xxxxx X. Xxxxxxx
Title: Vice President
OI PLASTIC PRODUCTS FTS, INC.
/s/Xxxxx X. Xxxxxxx
By:______________________________
Name: Xxxxx X. Xxxxxxx
Title: Vice President
XXXXX-ILLINOIS, INC.
/s/Xxxxx X. Xxxxxxx
By:______________________________
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
Exhibit C
NON-RESIGNING EMPLOYEES
Xxxxxxx, Xxxxxxxxx X. O-I Plastic Products de Mexico S. d X.X. de C.V. (Director)
Xxxxxxx, Xxxxx A.P. Xxxxxx X.X. de C.V. (Officer)
Continental PET Technologies de Mexico S.A. de C.V. (Officer)
Consultores en Controles S.A. de C.V. (Officer)
Especialidades Technologicas S.A. de C.V. (Officer)
Xxxxx, Xxxxx Xxxxxxx Xxxxxx S.A. de C.V. (Officer)
Continental PET Technologies de Mexico S.A. de C.V. (Officer)
Consultores en Controles S.A. de C.V. (Officer)
Especialidades Technologicas S.A. de C.V. (Officer)
Xxxxxxxx, Xxxxxxx X. Xxxxxx S.A. de C.V. (Officer)
Continental PET Technologies de Mexico S.A. de C.V. (Officer)
Consultores en Controles S.A. de C.V. (Officer)
Especialidades Technologicas S.A. de C.V. (Officer)
Xxxxx, Xxxxxx X. Xxxxxx S.A. de C.V. (Officer)
Continental PET Technologies de Mexico S.A. de C.V. (Officer)
Consultores en Controles S.A. de C.V. (Officer)
Especialidades Technologicas S.A. de C.V. (Officer)
