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Exhibit 10.15
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement") is made
and entered into as of February 5, 1997, by and between ANCHOR GLASS CONTAINER
CORPORATION, a Delaware corporation ("Assignor"), and ANCHOR GLASS ACQUISITION
CORPORATION, a Delaware corporation ("Assignee").
WITNESSETH:
WHEREAS, Assignor has entered into an Asset Purchase Agreement with
Consumers Packaging Inc., a corporation organized under the federal laws of
Canada ("Consumers"), and Xxxxx-Xxxxxxxx Glass Container Inc., a Delaware
corporation ("OI"), dated as of December 18, 1996 (the "Asset Purchase
Agreement") with respect to the sale by Assignor to Consumers and OI of
substantially all of the assets of Assignor on the terms and conditions
specified in the Asset Purchase Agreement. Capitalized terms used herein but not
otherwise defined herein shall have the meanings given them in the Asset
Purchase Agreement; and
WHEREAS, as contemplated by the Asset Purchase Agreement, pursuant
to an Assignment and Assumption Agreement dated February 5, 1997, Consumers has
assigned all of its rights under the Asset Purchase Agreement to Assignee and
has caused Assignee to assume all of' the liabilities and obligations of
Consumers under the Asset Purchase Agreement; and
WHEREAS, Assignor has sold, assigned and transferred to Assignee,
and Assignee has purchased from Assignor, all of Assignor's right, title and
interest in and to the Purchased Assets (other than the OI Assets ) and Assignee
has assumed the Assumed Liabilities (other than the OI Assumed Liabilities); and
WHEREAS, pursuant to Section 9.01(a) of the Asset Purchase
Agreement, Consumers agreed to cause Assignee to assume sponsorship of the
Seller Defined Benefit Plans, (and assume the liability for any required
contributions with respect thereto accrued but not paid as of the Closing Date)
and the Seller Defined Contribution Plans, as well as the trusts maintained in
connection with such plans; and
WHEREAS, pursuant to Section 9.01(b) of the Asset Purchase
Agreement, Consumers agreed to cause Assignee to assume sponsorship of the
Anchor Glass Container Corporation Non-Qualified Additional Credited Service and
ERISA Excess Plan and the Diamond Bathhurst, Inc. Preferred Compensation Plan,
as well as the "rabbi trust" maintained in connection therewith; and
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WHEREAS, pursuant to Section 9.02(a) of the Asset Purchase Agreement,
Consumers agreed to cause Assignee to assume sponsorship of certain Employee
Plans and Benefit Arrangements;
NOW, THEREFORE, for and in consideration of the sale of the
Purchased Assets (other than the OI Assets) by Assignor to Assignee, the
assumption of the Assumed Liabilities (other than the OI Assumed Liabilities) by
Assignee and the receipt by Assignor of the Estimated Purchase Price and other
good and valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, Assignor and Assignee hereby agree as follows:
1. Assumption of Sponsorship. Assignee hereby assumes sponsorship
of: (i) the Anchor Glass Container Corporation Service Retirement Plan (the
"Service Retirement Plan"), the Pension Plan for Hourly Employees of Xxxxxxxxx
Glass Company and Associated Companies, (the "Xxxxxxxxx Hourly Plan") and the
Anchor Glass Container Corporation Retirement Plan for Salaried Employees (the
"Salaried Employees Plan") (collectively, the "Defined Benefit Plans"); (ii) the
Anchor Glass Container Corporation Salaried Savings Plan (the "Salaried Savings
Plan") and the Anchor Glass Container Corporation Hourly Employees Supplemental
Retirement Plan (the "Hourly Supplemental Retirement Plan") (collectively the
"Defined Contribution Plans"); (iii) the Anchor Glass Container Corporation
Non-Qualified Additional Credited Service and ERISA Excess Plan and the Diamond
Bathhurst, Inc. Preferred Compensation Plan (the "Nonqualified Plans"); (iv) the
Anchor Glass Container Corporation Group Insurance Plan for All Employees,
including insured health and/or life polices (HMOs Hourly Life Insurance,
Salaried Life Insurance, Dependent Life Insurance), self-insured plans (Hourly
Plan: Passive PPO or Comprehensive Major Medical, Dental; Salaried Plan: PPO,
Dental), Retiree Benefits (Salaried employees: life insurance, secondary program
to medicare or comprehensive medical plan; Hourly (AFGWU): life insurance and
medicare supplement program), short-term disability benefits for Hourly and
Salaried employees; (v) the Anchor Glass Container Corporation Travel Accident
Plan; (vi) the Anchor Glass Container Corporation Long-Term Disability Plan;
(vii) the Anchor Glass Container Corporation Health Care Flexible Spending
Account Plan; (viii) the Anchor Glass Container Corporation Dependent Care
Flexible Spending Account Plan; (ix) the Anchor Glass Container Corporation
Flexible Benefits Plan; (x) the Anchor Glass Container Corporation Medical and
Dental Cafeteria Plan; (xi) the Anchor Glass Container Corporation Health Care
Flexible Spending Account Plan for AFGWU Hourly Employees; (xii) the Anchor
Glass Container Corporation Medical and Dental Cafeteria Plan for AFGWU and GMP
Hourly Employees; and (xiii) the Anchor Glass Container Corporation
Executive/Key Employee Retention Plan (collectively the "Plans").
2. Amendment of Plans. Assignor hereby amends the Seller Defined
Benefit Plans and the Seller Defined Contribution Plans as follows:
a) Effective as of the Closing Date, the definition of "Board" in
section 1.15 of the Service Retirement Plan, section 1.06 of the
Salaried Employees Plan, section 1.13 of the Xxxxxxxxx Hourly Plan,
section 1.09 of the Salaried Savings Plan and section
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1.07 of the Hourly Supplemental Retirement Plan is amended to
provide that "(i) with respect to periods prior to February 5, 0000,
"Xxxxx" means the Board of Directors of Anchor or any committee of
such Board of Directors to whom the Board may delegate any of its
powers or functions under the Plan or Trust Agreement, and (ii) with
respect to periods on and after February 5, 0000, "Xxxxx" means the
Board of Directors of Anchor Glass Acquisition Corporation or any
committee of such Board of Directors to whom the Board may delegate
any of its powers or functions under the Plan or under the Trust
Agreement."
b) Effective as of the Closing Date, the first sentence of the
definition of "Employer" in section 1.26 of the Service Retirement
Plan, section 1.11 of the Salaried Employees Plan, section 1.21 of
the Xxxxxxxxx Hourly Plan, section 1.17 of the Salaried Savings Plan
and section 1.15 of the Hourly Supplemental Retirement Plan is
amended to provide that "(i) with respect to periods prior to
February 5, 1997, "Employer" means Anchor Glass Container
Corporation or any other employer who with the consent of the Board
adopts this Plan, and (ii) with respect to periods on and after
February 5, 1997, "Employer" means Anchor Glass Acquisition
Corporation or any other employer who with the consent of the Board
adopts this Plan."
3. Assumption of Liabilities. Assignee hereby assumes and agrees to
pay, honor, perform and discharge on the Closing Date all liabilities (other
than OI Assumed Liabilities) related to the Plans, including liabilities to the
PBGC, which are due and unpaid as of the Closing Date and to pay, honor, perform
and discharge when due all liabilities related to the Plans; provided, however,
that Assignee does not assume any liability for excise tax, related tax, penalty
or interest due to the Internal Revenue Service arising out of the failure of
Assignor to contribute to the Defined Benefit Plans.
4. Excluded Liabilities. Nothing contained herein shall be construed
to effect an assignment by Assignor or assumption by Assignee of the Excluded
Liabilities.
5. Other Benefit Plan Obligations. Nothing contained herein shall be
construed to limit the obligations of Assignee under the Asset Purchase
Agreement, the Collective Bargaining Agreements, applicable law or otherwise
with respect to the Employee Plans and Benefit Arrangements assumed hereunder.
6. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York, without giving effect to
principles of conflicts of law.
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IN WITNESS WHEREOF, each party has caused this Agreement to be
executed by its duly authorized representative as of the date first written
above.
ANCHOR GLASS CONTAINER CORPORATION
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Senior Vice President
ANCHOR GLASS ACQUISITION CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
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Name:
Title:
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