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EXHIBIT 10.7
EXECUTION COPY
CONTRIBUTION, ASSIGNMENT AND ASSUMPTION AGREEMENT
CONTRIBUTION, ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of
May 31, 1999, between American National Can Company, a Delaware corporation
("ANC") and Pechiney Plastic Packaging, Inc., a Delaware corporation ("Pechiney
Plastics").
W I T N E S S E T H:
WHEREAS, in addition to certain beverage can operations, ANC
is engaged in certain plastic packaging operations including, without
limitation, flexible packaging, plastic bottles and plastic and laminated tubes
(the "Business");
WHEREAS, ANC has caused Pechiney Plastics to be organized as a
new corporation to receive the Business, and certain assets and liabilities
associated therewith;
WHEREAS, ANC desires to contribute, transfer and assign to
Pechiney Plastics, and Pechiney Plastics desires to acquire from ANC, the
Business, including all of its assets, subject to the liabilities thereof,
except as otherwise provided herein;
WHEREAS, in consideration for the transfer by ANC of such
assets and liabilities to Pechiney Plastics, Pechiney Plastics agrees to issue
to ANC 45 shares of common stock (the "Stock"), such Stock, together with the 5
shares of stock currently owned by ANC representing all of the issued and
outstanding shares of capital stock of Pechiney Plastics immediately after
giving effect to such issuance;
WHEREAS, the exchange of the assets and liabilities described
herein for the Stock is intended to qualify as transfer described in Section 351
of the Internal Revenue Code of 1986, as amended (the "Code");
WHEREAS, following the contribution, pursuant to a Stock
Purchase Agreement, ANC will distribute stock of Pechiney Plastics to Pechiney
in exchange for ANC stock (the "Distribution");
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements and covenants contained herein, the parties hereto agree as
follows:
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ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms. The following terms shall
have the meanings defined for such terms in the Sections of this Agreement set
forth below:
"Action" means any action, suit, arbitration, inquiry, proceeding
or investigation by or before any Governmental Authority.
"Affiliate" means, with respect to any specified Person, any other
Person that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such specified
Person.
"Agreement" means this Contribution, Assignment and Assumption
Agreement, including any amendments hereto and each Schedule and Exhibit
attached hereto.
"Ancillary Agreements" means the Intellectual Property Assignment,
all deeds, any other agreements or conveyance documents referred to in this
Agreement or necessary or desirable to effectuate the transfers provided for in
this Agreement, and any agreements providing for transitional, corporate or
shared services between the parties.
"Business Intellectual Property" means all of the Contributed
Trademarks and Contributed Patents and all other Intellectual Property primarily
used or intended to be primarily used in the conduct of the Business and which
is owned by ANC or licensed or sublicensed by ANC from a third party, in each
case, other than the Excluded Intellectual Property.
"Contributed Patents" means the patents set forth in Schedule
1.01A.
"Contributed Trademarks" means the trademarks set forth in
Schedule 1.01B.
"Distribution Date" means the date on which the Distribution
occurs.
"Encumbrance" means any security interest, pledge, mortgage, lien
(including, without limitation, environmental and tax liens), charge,
encumbrance, adverse claim, preferential arrangement, or restriction of any
kind, including, without limitation, any arrangement, restriction on the use,
voting, transfer, receipt of income or other exercise of any attributes of
ownership.
"Environment" means surface waters, ground waters, soil,
subsurface strata and ambient air.
"Environmental Claims" means any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of non-compliance or violation,
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investigations, proceedings, consent orders or consent agreements relating in
any way to any Environmental Law or any Environmental Permit (hereinafter
"Claims"), including, without limitation, (a) any and all Claims by Governmental
Authorities for enforcement, cleanup, removal, response, remedial or other
actions or damages pursuant to any applicable Environmental Law and (b) any and
all Claims by any Person seeking damages, contribution, indemnification, cost
recovery, compensation or injunctive relief resulting from a Release of
Hazardous Materials or arising from alleged injury or threat of injury to
health, safety or the Environment.
"Environmental Laws" means any Law, now or hereafter in effect and
as amended, and any judicial or administrative interpretation thereof, including
any judicial or administrative order, consent decree or judgment, relating to
the Environment, health, safety or Hazardous Materials.
"Environmental Permits" means all Permits required under any
applicable Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"ERISA Affiliate" means, with respect to any person, another
person who is treated as a single employer with such person within the meaning
of Section 414 of the Code, without giving effect to Section 1563(b)(3) of the
Code.
"Governmental Authority" means any United States federal, state or
local or any foreign government, governmental, regulatory or administrative
authority, agency or commission or any court, tribunal, or judicial or arbitral
body.
"Governmental Order" means any order, writ, judgment, injunction,
decree, stipulation, determination or award entered by or with any Governmental
Authority.
"Hazardous Materials" means (a) petroleum and petroleum products,
radioactive materials, asbestos in any form that is or could become friable,
urea formaldehyde foam insulation, transformers or other equipment that contain
polychlorinated biphenyls, and radon gas, (b) any other chemicals, materials or
substances defined as or included in the definition of "hazardous substances",
"hazardous wastes", "hazardous materials", "extremely hazardous wastes",
"restricted hazardous wastes", "toxic substances", "toxic pollutants",
"contaminants" or "pollutants", or words or similar import, under any applicable
Environmental Law, and (c) any other chemical, material or substance exposure to
which is regulated by any Governmental Authority.
"Indemnitee" means either an ANC Indemnitee or a Pechiney Plastics
Indemnitee.
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"Intellectual Property" means any (a) inventions, ideas and
conceptions of inventions, whether or not patentable, whether or not reduced to
practice, and whether or not yet made the subject of a pending patent
application or applications, (b) all United States, international and foreign
statutory invention registrations, patents, patent registrations and patent
applications (including, without limitation, all reissues, divisions,
continuations, continuations-in-part, extensions and reexaminations thereof) and
all rights therein provided by international treaties or conventions and all
improvements to the inventions disclosed in each such registration, patent or
application, (c) trademarks, service marks, certification marks, collective
marks, trade dress, logos, domain names, product configurations, trade names,
business names, corporate names and other source identifiers, whether or not
registered and whether or not currently in use, including all common law rights,
and registrations and applications for registration thereof, including, but not
limited to, all marks registered in the United States Patent and Trademark
Office or in any office or agency of any State or Territory thereof or of any
foreign country, and all rights therein provided by international treaties or
conventions, and all reissues, extensions and renewals of any of the foregoing,
(d) copyrighted works, copyrights, whether or not registered, and registrations
and applications for registration thereof in the United States and any foreign
country, and all rights therein provided by international treaties or
conventions, (e) moral rights (including, without limitation, rights of
paternity and integrity), and waivers of such rights by others, (f) confidential
and proprietary information, including know-how, trade secrets, manufacturing
and production processes and techniques, research and development information,
technical data, financial, marketing and business data, pricing and cost
information, business and marketing plans, and customer and supplier lists and
information, (g) copies and tangible embodiments of all the foregoing, in
whatever form or medium, (h) all rights to obtain and rights to register
trademarks and copyrights, and (i) all rights to xxx or recover and retain
damages and costs and attorneys' fees for past, present and future infringement
of any of the foregoing.
"Intellectual Property Assignment" means the Intellectual Property
Assignment Agreement, to be executed and delivered with this Agreement
substantially in the form attached as Exhibit A to this Agreement.
"Inventories" means all inventory, merchandise, works in process,
finished goods, and raw materials, packaging, supplies and other personal
property related to the Business, maintained, held or stored by or for the
Business and any prepaid deposits for any of the same.
"Law" means any federal, state, local or foreign statute, law
ordinance, regulation, rule, code, order requirement or rule of common law.
"Loss" means either an ANC Loss or a Pechiney Plastics Loss.
"Person" means any individual, partnership, limited liability
company, firm, corporation, association, trust, unincorporated organization or
other entity, as well as any
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syndicate or group that would be deemed to be a person under Section 13(d)(3) of
the Securities Exchange Act of 1934, as amended.
"Permits" means any permit, license, authorization, certificate,
exemption or approval of Governmental Authorities.
"Receivables" means any and all accounts receivable, notes and
other amounts receivable from third parties, including, without limitation,
customers and employees, arising from the conduct of the Business whether or not
in the ordinary course, together with any unpaid financing charges accrued
thereon.
"Release" means any disposing, discharging, injecting, spilling,
leaking, leaching, dumping, emitting, escaping, emptying, seeping, placing and
the like into or upon any land or water or air or otherwise entering the
Environment.
"Separation Date" means the date as of which ANC and Pechiney
Plastics cease to be treated as ERISA Affiliates or, in the case of any action
provided for in this Agreement to be taken with respect to any ANC Benefit Plan
or any pension or welfare benefit plan to be established by Pechiney Plastics,
such other date as may be mutually agreed by ANC and Pechiney Plastics.
"Subsidiaries" means the corporations, limited liability
companies, partnerships, associations and other entities specified in Schedule
1.01C.
"Tax" or "Taxes" means any and all taxes, fees, levies, duties,
tariffs, imposts, and other charges of any kind (together with any and all
interest, penalties, additions to tax and additional amounts imposed with
respect thereto) imposed by any government or taxing authority, including,
without limitation: taxes or other charges on or with respect to income,
franchises, windfall or other profits, gross receipts, property, sales, use,
capital stock, payroll, employment, social security, workers' compensation,
unemployment compensation, or net worth; taxes or other charges in the nature of
excise, withholding, ad valorem, stamp, transfer, value added, or gains taxes;
license, registration and documentation fees; and customs' duties, tariffs, and
similar charges, or arising under any Tax Law or agreement, including without
limitation, any joint venture or partnership agreement or any tax
indemnification agreement.
"Tax Separation Date" means the date of this Agreement.
"Transferred Employees" means all (a) employees of the Business
who become employees of Pechiney Plastics as of the Transfer Date and (b) other
employees of ANC who become employees of Pechiney Plastics as of the Transfer
Date pursuant to the mutual agreement of ANC and Pechiney Plastics.
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"U.S. GAAP" means United States generally accepted accounting
principles and practices in effect from time to time applied consistently
throughout the periods involved.
SECTION 1.02. Other Defined Terms. The following terms shall have
meanings defined for such terms in the Sections of this Agreement set forth
below:
Term Section
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ANC Preamble
ANC Benefit Plans 8.01(b)
ANC Deferred Plans 8.01(b)
ANC Indemnitee 11.02
ANC Loss 11.02
ANC RBEP 8.01(b)
Assumed Liabilities 3.01
Assumed OPEB Obligations 8.03(a)
Business Recitals
Code Recitals
Contributed Assets 2.01
Contributed Real Property 2.01(n)
Discount Percentage 11.04(a)(ii)
Distribution Recitals
Excluded Assets 2.02
Excluded Intellectual Property 2.02(c)
Excluded Liabilities 3.03
Pechiney Plastics Preamble
Pechiney Plastics Indemnitee 11.01
Pechiney Plastics Loss 11.01
Pechiney Plastics Participants 3.02(a)
Post-Tax Separation Date Taxes 9.01
Post-Retirement Welfare Plans 3.02(a)
Pre-Tax Separation Date Taxes 9.01
Registration Statement 8.01(d)
SARs 8.07(a)
Savings Plans 8.01(e)
Stock Recitals
Tax Benefit Item 11.04(a)(ii)
Tax Cost Item 11.04(a)(ii)
Third Party Claims 11.03
Transfer Date 8.01(a)
Transfer Taxes 9.02
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ARTICLE II
CONTRIBUTION AND ASSIGNMENT OF ASSETS
SECTION 2.01. Contribution, Transfer and Assignment of Assets and
Properties. ANC does hereby sell, assign, transfer, convey, grant, bargain, set
over, release, deliver and confirm unto Pechiney Plastics, its successors and
assigns, as a capital contribution, the entire right, title and interest of ANC
to and in all of the assets, properties, goodwill and business of every kind and
description (excepting only Excluded Assets as set forth in Section 2.02
hereof), wherever located, whether real, personal or mixed, tangible or
intangible, directly or indirectly owned by ANC, or to which it is directly or
indirectly entitled and, in any case, belonging to or used primarily or intended
to be used primarily in the Business, as they exist on the date hereof
(collectively referred to as the "Contributed Assets"), including, without
limitation, all right, title and interest of ANC in, to and under:
(a) the Business as a going concern;
(b) all machinery, equipment, tools, furniture and fixtures,
office equipment and other tangible personal property primarily used or
held for use by ANC at the locations at which the Business is
conducted, or otherwise owned or held by ANC primarily for the conduct
of the Business;
(c) all vehicles and rolling stock primarily used in the Business;
(d) all contracts (written or oral), agreements, leases,
commitments, and sales and purchase orders, and under all commitments,
bids and offers (to the extent such offers are transferable) to the
extent primarily used or intended to be primarily used in the Business
including, without limitation, confidential agreements, engagement
letters, leases and subleases for personal property, plans,
instruments, licenses, registrations, certificates of occupancy,
permits relating primarily to the Business, and any and all prepayments
or deposits made for, or in connection with, any of the foregoing;
(e) all Inventories primarily used or intended to be used in the
Business;
(f) all Receivables, to the extent related to the Business;
(g) all of ANC's right, title and interest in, to and under the
Business Intellectual Property;
(h) computer software, including, without, limitation, source
code, object code, objects, comments, screens, user interfaces, report
formats, templates, memos, buttons and icons, and all files, data,
documentation and other materials related thereto, but only to the
extent owned by ANC and used exclusively in the conduct of the
Business;
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(i) all books of account, general, financial, tax and personnel
records, invoices, shipping records, supplier lists, correspondence and
other documents, records and files primarily used in, or primarily
relating to, the Business, other than organization documents, minute
and stock record books and the corporate seal of ANC;
(j) all goodwill of ANC relating to the Business;
(k) all claims, causes of action, choses in action, rights of
recovery and rights of set-off of any kind (including rights to
insurance proceeds and rights under and pursuant to all warranties,
representations and guarantees made by suppliers of products, materials
or equipment, or components thereof), primarily pertaining to or
primarily, arising out of the Business, except to the extent any of the
foregoing relates to the Excluded Assets or the Excluded Liabilities;
(l) all sales and promotional literature, customer lists and other
sales-related materials designed for and intended to be used in the
Business by ANC;
(m) all municipal, state and federal franchises, permits,
licenses, agreements, waivers and authorizations held primarily for, or
used primarily in connection with, or required for, the Business, to
the extent transferable;
(n) all of ANC's right, title and interest in and to all of the
real property and the rights in the leasehold interests (to the extent
assignable) set forth in Schedule 2.01(n), together with all buildings
and other structures, facilities or improvements currently or hereafter
located thereon, all fixtures, systems, equipment and items of personal
property attached or appurtenant thereto, and all easements, licenses
rights and appurtenances relating to the foregoing (the "Contributed
Real Property");
(o) all of ANC's rights to, and interests in, the Subsidiaries;
(p) all bank lockboxes related to the Business; and
(q) except for the Excluded Assets, all of ANC's right, title and
interest on the date of this Agreement in, to and under all other
assets, rights and claims of every kind and nature primarily used or
intended to be primarily used in the operation of the Business.
SECTION 2.02. Excluded Assets. The following are, and Pechiney
Plastics understands and acknowledges that the following are, specifically
excluded from the assets, properties, goodwill and business contributed, sold,
transferred and assigned to Pechiney Plastics pursuant to Section 2.01 of this
Agreement (the "Excluded Assets"):
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(a) any rights to or claims for tax refunds credits or similar
benefits relating to the Business or the Contributed Assets
attributable to periods ending, or an event occurring, on or prior to
the Tax Separation Date;
(b) all cash, cash equivalents and bank accounts owned by ANC;
(c) all right, title and interest of ANC in and to (i) all
trademarks, trademark registrations and trademark applications owned by
ANC that are not Contributed Trademarks, including without limitation,
the name "American National Can Company" or any derivation thereof and
ANC's logo or any logo or symbol identical or confusingly similar to
such logo, or the logo of any ANC predecessor, and (ii) all other
Intellectual Property owned by ANC or used by ANC in advertising,
promotional material, packaging material or other material and not used
primarily in connection with the sale, offer or distribution of
products bearing or embodying the Contributed Trademarks or not
otherwise used primarily in, or held primarily for the benefit of, the
Business ("Excluded Intellectual Property");
(d) all rights of ANC under this Agreement and the Ancillary
Agreements; and
(e) subject to Section 7.06 of this Agreement, all insurance
policies of ANC and all rights of ANC with respect to insurance
coverage, insurance claims and under insurance policies.
ARTICLE III
ASSUMPTION OF LIABILITIES
SECTION 3.01. Assumption of Liabilities. Subject to the terms and
conditions of this Agreement, Pechiney Plastics hereby assumes and agrees to
pay, fulfill, perform or otherwise discharge when due any and all of the debts,
liabilities and obligations of ANC (whether fixed or contingent, matured or
unmatured, arising by law or by contract or otherwise, on or prior to the date
hereof or hereafter) (the "Assumed Liabilities") to the extent relating to the
Business or the Contributed Assets, other than the liabilities set forth in
Section 3.02 below. The Assumed Liabilities include, without limitation:
(a) any and all liabilities in respect of Environmental Claims
relating to or arising out of the Business or the Contributed Assets;
(b) obligations and liabilities in respect of employee and
employee benefits matters to the extent set forth in Article VIII;
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(c) any and all liabilities in respect of any pending or
threatened litigation, claims, suits, actions, investigations,
indictments, or proceedings to which ANC is or may become a party or
any of the Contributed Assets is or may become subject (other than
those relating to, or arising out of, the patent infringement
litigation, claims and proceedings involving the Viskase Corporation
and ANC, in respect of which Pechiney Plastics has agreed to indemnify
ANC under Section 11.02(iii) of this Agreement), arising out of, or
relating to, the conduct of the Business, including, without
limitation, the litigations set forth in Schedule 3.01(c);
(d) all liabilities and obligations relating to the Contributed
Real Property;
(e) all letters of credit, guarantees or other financial
accommodations which support any Assumed Liabilities or Contributed
Assets; and
(f) all liabilities of the general type reflected in the December
31, 1998 Pro-Forma Balance Sheet set forth in Schedule 3.01(f),
recognizing that such Balance Sheet is only illustrative of the
liabilities of the Business that may exist as of the date of this
Agreement and further recognizing that it does not necessarily reflect
all contingent liabilities relating to the Business.
SECTION 3.02. Excluded Liabilities. Notwithstanding Section 3.01,
Pechiney Plastics shall have no liability or obligation whatsoever for, and
shall not assume by virtue of this Agreement or otherwise, any of the following
(the "Excluded Liabilities"):
(a) any liability for Tax arising from or with respect to the
Contributed Assets or the operations of the Business which is incurred
in or attributable to any period of time ending on or before the Tax
Separation Date;
(b) any liabilities relating to or arising out of the Excluded
Assets; and
(c) other than relating to the Contributed Assets and the Assumed
Liabilities, all debts and obligations of ANC not primarily related to,
or primarily arising out of, the conduct of the Business.
ARTICLE IV
ISSUANCE OF THE SHARES
SECTION 4.01. Issuance of Stock. As of the date hereof,
Pechiney Plastics has authorized 100 shares of Common Stock, no par value. In
exchange for the Contributed Assets and the Assumed Liabilities being
transferred to Pechiney Plastics pursuant to this Agreement Pechiney Plastics
shall issue to ANC, effective as of the date hereof, the Stock, which, together
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with the 5 shares of stock currently owned by ANC, will represent all of the
issued and outstanding shares of capital stock of Pechiney Plastics immediately
after giving effect to such issuance. Pechiney Plastics agrees to cause a
certificate for such Stock to be issued to ANC as of the date hereof. Such
Stock, when issued, will be fully paid and non-assessable.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF ANC
ANC represents, warrants and agrees that:
SECTION 5.01. Corporate Organization and Qualification. ANC (a) is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware; (b) has the corporate power to own and to carry
on the Business as now being conducted by it and is duly qualified to do
business and in good standing in various jurisdictions (c) is in compliance with
all provisions of its Certificate of Incorporation and By-Laws as they relate
directly to the transactions contemplated hereunder.
SECTION 5.02. Authorization of Transaction. The execution and
delivery of this Agreement and all other instruments and documents contemplated
herein by ANC, and the contribution, assignment, sale and transfer of the
Contributed Assets contemplated herein, have been duly authorized by all
necessary corporate action of ANC.
SECTION 5.03. Absence of Restrictions. Subject to the provisions
of Article VII hereof, to the best knowledge of ANC, neither the execution or
delivery of this Agreement by ANC, nor the fulfillment of or compliance with the
terms hereof by ANC, will result in the creation of any lien, security interest,
charge or encumbrance upon any of the Contributed Assets, other than any lien,
security interest, charge or encumbrance that may be created under the terms of
any contracts or agreements transferred pursuant to this Agreement. This
Agreement, the Ancillary Agreements and all other instruments and documents
contemplated herein, when executed, will constitute the legal, valid and binding
obligations of ANC, enforceable in accordance with their terms.
SECTION 5.04. Title to Contributed Assets, Etc. ANC believes it
has good and marketable title to all property included in the Contributed
Assets, with full power to sell, transfer and assign the same, free and clear of
any security interest, lien, mortgage, pledge, encumbrance, charge or
restriction.
SECTION 5.05. Disclaimer of Merchantability or Fitness of
Contributed Assets. Each party hereto further understands and agrees that there
are no warranties, express or implied, as to the merchantability or fitness of
any of the Contributed Assets transferred by ANC pursuant
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to this Agreement or any Ancillary Agreement, and that all Contributed Assets
will be transferred on an "AS IS, WHERE IS" basis.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF PECHINEY PLASTICS
Pechiney Plastics represents, warrants and agrees that:
SECTION 6.01. Organization. Pechiney Plastics is a corporation
duly formed, validly existing and in good standing under the laws of the State
of Delaware. This Agreement constitutes the legal, valid and binding obligation
of Pechiney Plastics, enforceable in accordance with its terms.
SECTION 6.02. Authorization of Transaction. The execution and
delivery of this Agreement and all other instruments and documents contemplated
herein by Pechiney Plastics, and the assumption of the Assumed Liabilities
contemplated herein, have been duly authorized by all necessary corporate action
of Pechiney Plastics. Neither the execution nor delivery of this Agreement nor
the fulfillment of nor compliance with the terms hereof will conflict with or
result in a breach of the terms, conditions or provisions of or constitute a
default under or any agreement or instrument to which Pechiney Plastics is a
party.
ARTICLE VII
COVENANTS OF THE PARTIES
SECTION 7.01. Further Assurances. ANC and Pechiney Plastics shall
use all reasonable efforts to: (a) take or cause to be taken all actions, and to
do or cause to be done all things reasonably necessary, proper or advisable,
under any applicable Law, agreement or otherwise, to consummate and make
effective the transactions contemplated hereby, including without limitation
using commercially reasonable efforts to obtain any consents and approvals from,
enter into any amendatory agreements with and make any applications,
registrations or filings with, any third Person or any Governmental Authority
necessary or desirable in order to consummate the transfers contemplated hereby
or to carry out the purposes of this Agreement, and (b) execute and deliver such
further agreements, instruments and documents and take such other actions as the
other party may reasonably request in order to consummate the transfers
contemplated hereby and effectuate the purposes of this Agreement.
SECTION 7.02. Consents, Permits, Etc. To the extent that any of
the contracts, leases, agreements, licenses, permits, plans, commitments or
other binding arrangements relating to the Contributed Assets (in this Section
7.02 called "agreements") that hereby are assumed by or assigned to Pechiney
Plastics are not assumable or assignable without the consent of another
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party, this Agreement shall not constitute an assignment or an attempted
assignment thereof if such assignment or attempted assignment would constitute a
breach thereof. ANC and Pechiney Plastics agree to use reasonable best efforts
to obtain (which will not include the payment of money or expenditures by ANC)
the consent of the other party to any such agreements to their assumption by or
assignment to Pechiney Plastics in all cases in which such consent is required
for such assumption or assignment. If such consent is not obtained, each of the
parties hereto agrees to cooperate with the other in any reasonable arrangement
designed to enable ANC to perform its obligations under, and to provide for
Pechiney Plastics the benefits of, any such agreements, including enforcement at
the cost, and for the account, of Pechiney Plastics of any and all rights of ANC
against the other party thereto arising out of the non-performance, breach or
cancellation thereof by such other party or otherwise. ANC will promptly pay to
Pechiney Plastics when received all monies received by ANC under any such
agreements.
SECTION 7.03. Books and Records. (a) ANC agrees that it shall
preserve and keep all books and records in respect of the Business in ANC's
possession for retention periods consistent with the ANC Records Management
Program. During such retention periods, duly authorized representatives of
Pechiney Plastics shall, upon reasonable notice, have access thereto during
normal business hours to examine, inspect and copy such books and records.
(b) If, in order properly to prepare documents required to be
filed with Governmental Authorities or its financial statements, it is necessary
that either party hereto or any successors be furnished with additional
information relating to the Business, the Contributed Assets or the Assumed
Liabilities, and such information is in the possession of the other party hereto
or any of its Affiliates, such party agrees to use its best efforts to furnish
such information to such other party, at the cost and expense of the party being
furnished such information.
SECTION 7.04. Confidentiality. Each party agrees to, and will
cause its agents, representatives, Affiliates, employees, officers and directors
to (i) treat and hold as confidential (and not disclose or provide access to any
Person to) all information relating to trade secrets, processes, patent or
trademark applications, product development, price, customer and supplier lists,
pricing and marketing plans, policies and strategies, operations methods,
product development techniques, business acquisition plans, new personnel
acquisition plans and any other confidential information related solely to the
business of the other party, (ii) in the event that either party or its
respective agents, representatives, Affiliates, employees, officers or directors
becomes legally compelled to disclose any such information, provide the other
party with prompt written notice of such requirement so that the other party may
seek a protective order or other remedy or waive compliance with this Section
7.04 and (iii) in the event that such protective order or other remedy is not
obtained, or the other party waives compliance with this Section 7.04, furnish
only that portion of such confidential information which is legally required to
be provided and exercise all reasonable efforts to obtain assurances that
confidential treatment will be accorded such information; provided, however,
that this sentence shall not apply to any information that, at the time of
disclosure, is available publicly and was not disclosed in breach of
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this Section 7.04 by either party or its respective agents, representatives,
Affiliates, employees, officers or directors.
SECTION 7.05. Use of Names. Pechiney Plastics acknowledges and
agrees that, notwithstanding anything to the contrary in this Agreement, it is
not acquiring pursuant to this Agreement, and shall have, no interest in or to
the name "American National Can Company", "Nacanco" or "ANC" or any trademark,
service xxxx, trade dress, logo, trade name or corporate name similar or related
thereto, and shall not use any such name, trademark, service xxxx, trade dress,
logo, trade name or corporate name in any capacity or for any purpose except as
expressly provided for in this Agreement and the Ancillary Agreements; provided
that for a transitional period not to exceed 120 days from the Distribution
date, Pechiney Plastics shall have the right to use the signs, advertising,
promotional materials, packaging materials and supplies (including, without
limitation, stationery, cartons and labels), and other materials remaining in
its possession or under its control, and to sell the existing Inventory
transferred by ANC and the Subsidiaries to Pechiney Plastics pursuant to this
Agreement; provided, however, that Pechiney Plastics shall use such materials
and supplies and sell such inventories prior to introducing Pechiney Plastics'
own materials and supplies.
SECTION 7.06. Insurance. Up to 12:01 a.m. on the day after the
Distribution date, ANC and the Subsidiaries will maintain insurance with respect
to the Contributed Assets and Assumed Liabilities generally comparable to the
standalone insurance that ANC maintains as of the date of this Agreement.
Effective 12:01 a.m. on the day after the Distribution date, the Contributed
Assets and Assumed Liabilities shall cease to be insured by ANC's or the
Subsidiaries' insurance policies, such that (i) with respect to insurance
coverage written on an "occurrence basis," ANC and the Subsidiaries will have no
liability for occurrences which take place on and after 12:01 a.m. on the day
after the Distribution date and (ii) with respect to insurance coverage written
on a "claims made basis," ANC and the Subsidiaries will have no liability for
claims made after 12:01 a.m. on the day after the Distribution date.
SECTION 7.07. Ancillary Agreements. The parties shall cooperate in
good faith to prepare, execute, deliver and, when appropriate, file or cause to
be filed with a Governmental Authority, the Ancillary Agreements as promptly as
practicable after the date hereof.
ARTICLE VIII
EMPLOYEE MATTERS
SECTION 8.01. General Employment Matters. (a) As of June 30, 1999
(or such other date as may be mutually agreed by ANC and Pechiney Plastics
occurring after the date hereof and no later than the Separation Date) (the
"Transfer Date"), all Transferred Employees shall become employed by Pechiney
Plastics. The initial compensation (base salary or wage
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level) of each Transferred Employee shall be the same as his or her compensation
(base salary or wage level) immediately prior to the Transfer Date. Nothing in
this Agreement shall give any Transferred Employee any right to continued
employment with Pechiney Plastics or ANC beyond the Transfer Date.
(b) As of the Transfer Date, Pechiney Plastics will
participate in each of the employee benefit plans (including all retirement
plans, welfare benefit plans and deferred compensation plans) which, immediately
prior to the Transfer Date, cover employees of ANC who are Transferred Employees
(collectively, the "ANC Benefit Plans"). As a participating employer under the
ANC Benefit Plans, Pechiney Plastics shall grant to the ANC ERISA Committee and
to the ANC Retirement Board the same powers, rights, duties and responsibilities
to act on behalf of Pechiney Plastics with respect to the ANC Benefit Plans as
are stated in the July 6, 1994 resolution of the Board of Directors of American
National Can Company setting forth the powers, rights, duties and
responsibilities of the ANC ERISA Committee and the ANC Retirement Board to act
on behalf of ANC with respect to such plans. ANC shall take all necessary action
so that Pechiney Plastics will be designated a "successor employer" for purposes
of the ANC Benefit Plans (including, without limitation, the American National
Can Company Severance Pay Plan For Salaried Employees), so that the Transferred
Employees will not be deemed to have had a separation of service from ANC or a
termination of employment from ANC merely because they are transferred to
Pechiney Plastics or because Pechiney Plastics and ANC cease to be ERISA
Affiliates.
(c) Pechiney Plastics shall withdraw as a participating employer
from each ANC Benefit Plan as of the Separation Date. Except as otherwise
provided in this Agreement, as of the Separation Date Pechiney Plastics:
(i) shall assume sponsorship of, and all liabilities relating to:
(A) the American National Can Company Pension Plan for
Cleveland Hourly Employees;
(B) the American National Can Company Retirement Plan for
Bargaining Employees of Illinois;
(C) the American National Can Company Pension Plan for
Organized Pressroom Employees of American National Can, Mt.
Xxxxxx, Ohio Plant;
(D) the American National Can Company Pension Plan for
U.P.I.U. Local 271 Employees, Xx. Xxxxxx, Ohio; and
(E) the 1987 Performance Plastics Deferred Compensation Plan;
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and of any other ANC Benefit Plans that ANC and Pechiney Plastics
mutually agree should be subject to this clause (i); and
(ii) shall establish "mirror" plans that will provide the same
level of benefits (as in effect immediately prior to the Separation
Date) for the Transferred Employees and their eligible dependents and
beneficiaries as those provided under the ANC Benefit Plans other than
those described in the foregoing clause (i).
(d) Prior to the Separation Date, ANC and Pechiney Plastics will
enter into an agreement to reflect the "mirror offset" arrangements described in
Note 12 to the combined financial statements of American National Can Group,
Inc. included in its Registration Statement on Form S-1, SEC File No. 333-76699
(the "Registration Statement"). Such agreement will provide, among other things,
for an amendment to the American National Can Company Combined Pension Plan and
for the establishment by Pechiney Plastics of certain "mirror offset" plans
covering the Transferred Employees.
(e) Effective as of the Separation Date, Transferred Employees
shall no longer participate in the American National Can Company Capital
Accumulation Plan, the American National Can Company Retirement and Savings Plan
for Non-Union Employees, and the American National Can Company Retirement and
Savings Plan for Union Employees (collectively, the "Savings Plans"). Effective
as of the Separation Date, Pechiney Plastics shall establish pursuant to Section
8.01(c) above "mirror" defined contribution plans intended to be qualified under
Sections 401(a) and 401(k) of the Code and related trusts intended to be exempt
from taxation under Section 501(a) of the Code (except to the extent that such
"mirror" plans and related trusts have previously been established by ANC and
are assumed by Pechiney Plastics in accordance with Section 8.01(c)(i)). As soon
as practicable following the Separation Date, ANC shall cause to be transferred
from the Savings Plans to such defined contribution plans and related trusts, as
Pechiney Plastics shall direct, assets equal to the account balances as of the
transfer date of the Transferred Employees who participate in the Savings Plans
(with subsequent "true up" adjustment, if necessary). ANC shall amend the
Savings Plans to fully vest accounts of all Transferred Employees as of the
Separation Date.
(f) In connection with all employee pension benefit plans and
employee welfare benefit plans assumed or to be established by Pechiney Plastics
pursuant to this Agreement, Pechiney Plastics shall credit Transferred Employees
for all periods of service with ANC prior to the Transfer Date for all purposes,
to the same extent that such service was credited under the applicable ANC
Benefit Plan. In addition, any welfare plan that Pechiney Plastics establishes
hereto shall take account of amounts credited against deductibles for 1999 prior
to the Separation Date under the corresponding ANC Benefit Plan, as well as of
amounts charged against out-of-pocket or other annual or other (including
lifetime) limitations under the corresponding ANC Benefit Plan prior to the
Separation Date. Pechiney Plastics will cause the waiver of any waiting periods
or pre-existing condition limitations or exclusions that otherwise
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might apply to Transferred Employees (or their eligible dependents or
beneficiaries) under the terms of the "mirror" plans established pursuant to
Section 8.01(c), to the extent that such periods, limitations or exclusions
would not have applied to the Transferred Employees (and their eligible
dependents and beneficiaries) had they continued to participate in the ANC
Benefit Plans after the Separation Date.
SECTION 8.02. Collective Bargaining. (a) As of the Transfer Date,
ANC shall assign to Pechiney Plastics, and Pechiney Plastics shall assume, all
collective bargaining agreements covering the Transferred Employees as of such
date, which collective bargaining agreements are listed in Schedule 8.02. This
assumption shall not restrict any right Pechiney Plastics may have with respect
to such agreements.
(b) Pechiney Plastics shall recognize all labor organizations
which, as of the Transfer Date, represent any Transferred Employees.
(c) Without limiting the generality of Pechiney Plastics's
obligations as stated above, Pechiney Plastics shall provide Transferred
Employees the terms and conditions of whose employment is subject to collective
bargaining agreements with the wages, benefits and terms and conditions of
employment required by such agreements.
(d) To the extent required under any collective bargaining
agreement or otherwise required by law, Pechiney Plastics shall notify the
relevant collective bargaining representative of the assignment and assumption
provided for herein.
SECTION 8.03. OPEB Obligations. (a) As of the date hereof, ANC
delegates and assigns to Pechiney Plastics, and Pechiney Plastics assumes and
accepts obligations and responsibility for, all of ANC's obligations and
liabilities to provide post-retirement health care and life insurance benefits
to the Transferred Employees and former employee groups listed in Schedule 8.03
(the "Assumed OPEB Obligations") under the welfare benefit plans identified in
such Schedule (the "Post-Retirement Welfare Plans").
(b) Pechiney Plastics acknowledges and agrees that from the date
hereof it will be the primary obligor with respect to the Assumed OPEB
Obligations and agrees to perform fully and in timely fashion all of its
obligations under the Assumed OPEB Obligations, in the same manner and to the
same extent that ANC would have been required to perform such obligations if ANC
had retained the Assumed OPEB Obligations. Except as otherwise provided in this
Agreement, from and after the date hereof, ANC assigns to Pechiney Plastics all
of its rights and powers with respect to the administration and (to the extent
permitted under the terms of the Post-Retirement Welfare Plans and applicable
law, including ERISA) the amendment and termination of the Post-Retirement
Welfare Plans as they apply to the Transferred Employees and former employees
the liabilities with respect to whom are included in the Assumed OPEB
Obligations, together with the eligible dependents and beneficiaries of such
employees.
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(c) As of the date hereof, Pechiney Plastics will establish
benefit plans (including, where appropriate, by assuming sponsorship of existing
Post-Retirement Welfare Plans of ANC) that will provide the benefits the
obligation to provide which are included in the Assumed OPEB Obligations. The
establishment (or assumption) of such benefit plans shall not in any way
restrict any right Pechiney Plastics may have to amend or terminate such plans.
Pechiney Plastics will prepare and distribute any notices required under
applicable law advising interested parties of its assumption of the Assumed OPEB
Obligations.
SECTION 8.04. ANC Deferred Plans. (a) Participation by Transferred
Employees in future benefit accruals under:
(i) the American National Can Company Non-Qualified Deferred
Compensation Plan;
(ii) the American National Can Company Retirement Benefit
Equalization Plan (the "ANC RBEP"); and
(iii) the American National Can Company Deferred Incentive
Compensation Plan (collectively with the plans referred to in clauses
(i) and (ii) above, the "ANC Deferred Plans")
shall cease as of the Separation Date. Prior to the Separation Date, ANC will
amend each of the ANC Deferred Plans to provide that a transfer of employment
from ANC to Pechiney Plastics in connection with the transactions contemplated
by this Agreement will not constitute a termination of employment or otherwise
confer on any participant in such plans the right to receive any early payment
or other distribution. As of the Separation Date, Pechiney Plastics will assume
liability:
(I) for all benefits under the ANC RBEP in respect of the
Transferred Employees, former salaried employees of the Business
who became eligible for long-term disability benefits on or after
January 1, 1989, and their respective designated beneficiaries, it
being understood that ANC will retain all liabilities under such
plan in respect of former employees of the Business who have
retired or otherwise have terminated employment prior to the
Separation Date and their designated beneficiaries; and
(II) for all benefits under the ANC Deferred Plans (other than the
ANC RBEP) in respect of the Transferred Employees, the former
employees of the Business who have retired or otherwise have
terminated employment prior to the Separation Date and former
salaried employees of the Business who became eligible for
long-term disability benefits on or after January 1, 1989,
together with their respective designated beneficiaries.
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To the extent that an ANC Deferred Plan is an individual account plan, the
balance of each Transferred Employee's account thereunder as of the Separation
Date shall become the opening balance of his or her account in the "mirror"
non-qualified deferred plan established by Pechiney Plastics in accordance with
Section 8.01(c).
(b) As soon as practicable after the end of the month in which the
Separation Date occurs, ANC will make a cash payment to Pechiney Plastics in an
amount equal to the product obtained by multiplying:
(i) the fair value, determined as of the end of the month in which
the Separation Date occurs, of the assets held in that certain grantor
trust established pursuant to the Trust Agreement, effective July 1,
1998, between American National Can Company and Boston Safe Deposit and
Trust Company, as trustee; by
(ii) 0.088 (such amount being the ratio of (A) the value of the
liabilities under the ANC RBEP assumed by Pechiney Plastics as stated
in the most recent actuarial valuation report (as of January 1, 1998)
to (B) the total value of all liabilities under the ANC RBEP as stated
in such report).
SECTION 8.05. Certain Other Plans and Benefits. This Section 8.05
sets forth the understanding of ANC and Pechiney Plastics concerning the
allocation of responsibility for certain employee benefits. Assumption of
liabilities by Pechiney Plastics pursuant to this Section 8.05 shall in each
instance be effective as of the Separation Date.
(a) Pechiney Plastics will assume all liabilities under the
American National Can Company 25-year Survivorship Plan and the American
National Can Company 10-Year Survivorship Plan in respect of the Transferred
Employees and former salaried employees of the Business who became eligible for
long-term disability benefits on or after January 1, 1989.
(b) Pechiney Plastics will be responsible for all claims by
Transferred Employees and former salaried employees of the Business who became
eligible for long-term disability benefits on or after January 1, 1989 (and
their eligible dependents and beneficiaries) incurred on or after the Separation
Date, or incurred prior to the Separation Date but not reported until on or
after the Separation Date, for the following types of benefits:
(i) medical and dental;
(ii) reimbursement of expenses under medical spending and eligible
dependent care accounts (Section 125 plans); and
(iii) life insurance.
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As soon as practicable after the end of the month in which the Separation Date
occurs, ANC will transfer to Pechiney Plastics an amount of cash equal to the
aggregate net medical spending and eligible dependent care account balances of
the Transferred Employees as of the Separation Date.
(c) (i) Pechiney Plastics will assume liability for health and
other welfare benefits (including, as applicable, medical benefit
continuation, life insurance, retiree medical plan coverage to age 65
and post-retirement medical coverage, if eligible) provided under the
ANC Benefit Plans to Transferred Employees and former salaried
employees of the Business who became eligible for long-term disability
benefits on or after January 1, 1989. Liability for benefits accrued
under any retirement plan of ANC by any such former salaried employee
through the Separation Date will remain with ANC (except as otherwise
specified in Sections 8.03, 8.04 and 8.05(a), (b), (e), (f) and (g)),
whereas Pechiney Plastics shall be responsible for any such benefit
accrued on or after the Separation Date.
(ii) Pechiney Plastics will assume liability for all long-term
disability benefits provided under the ANC Benefit Plans to any former
hourly employees of the ANC plant located in Minneapolis, Minnesota who
are eligible for such benefits as of the Separation Date.
(d) Except for retirement benefits which are retained by ANC as
provided in Section 8.01(d), Pechiney Plastics shall assume liability for all
benefits provided under the ANC Benefit Plans to Transferred Employees who are
eligible to receive short-term disability benefits as of the Separation Date.
(e) With respect to "COBRA" continuation coverage: (i) ANC shall
retain all obligations to provide such coverage to former salaried employees of
the Business who have elected or are eligible to elect COBRA continuation
benefits as of the Separation Date; and (ii) Pechiney Plastics shall assume all
obligations to provide such coverage to former hourly employees of the Business
who have elected or are eligible to elect COBRA continuation as of the
Separation Date.
(f) Pechiney Plastics will assume liability for all worker's
compensation benefits payable to Transferred Employees or former employees of
the Business who are eligible for such benefits as of the Separation Date.
(g) Pechiney Plastics will assume liability for all vacation
accruals of the Transferred Employees under the ANC Benefit Plans, determined as
of the Separation Date.
SECTION 8.06. "Mirror" Plans. Benefits for which Pechiney Plastics
is responsible pursuant to Sections 8.04 and 8.05 above will be provided
pursuant to the "mirror"
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plans that Pechiney Plastics will establish in accordance with Section 8.01(c)
in respect of the corresponding ANC plans.
SECTION 8.07. Bonus and Other Incentive Arrangements. (a) All
outstanding stock appreciation rights ("SARs") based on Pechiney American
Depositary Shares and granted to Transferred Employees pursuant to any ANC
long-term incentive plan prior to the Separation Date shall be assumed under
"mirror" long-term incentive plans established by Pechiney Plastics under
Section 8.01(c). As so assumed, such SARs shall remain outstanding in accordance
with their terms, except that each SAR shall constitute an obligation of
Pechiney Plastics, rather than of ANC. No such SAR shall be forfeited solely on
account of a transfer of the grantee's employment from ANC to Pechiney Plastics,
and for purposes of the vesting provisions of any SAR, service with ANC shall
count as service with Pechiney Plastics.
(b) Liability for all bonus, incentive and similar arrangements of
ANC in which any Transferred Employee participates for 1999, or for any other
performance period which includes the Separation Date, shall be assumed by
Pechiney Plastics as of the Separation Date.
SECTION 8.08. General Matters. (a) In fulfilling its obligations
with respect to the employee liabilities assumed hereunder (including without
limitation the Assumed OPEB Obligations), Pechiney Plastics covenants and agrees
to comply with all provisions of applicable law, including without limitation
ERISA. Pechiney Plastics further covenants and agrees that, at any time and from
time to time following the date hereof, it will promptly execute and deliver, or
cause to be executed and delivered, to ANC all such further instruments and take
all such further action as may be reasonably necessary or appropriate to more
effectively assume such liabilities or otherwise to confirm or carry out the
provisions and intent of this Agreement.
(b) To the extent that benefits liability for which is assumed by
Pechiney Plastics hereunder (including benefits under any Post-Retirement
Welfare Plan) are provided under a policy or contract issued to ANC by an
insurance company or other provider of welfare benefits, ANC shall make
reasonable efforts to cause such provider to continue coverage for Transferred
Employees and former employees of the Business and their eligible dependents and
beneficiaries. ANC will retain the reserves under any policy or contract
currently issued to ANC.
(c) Except (i) for benefits for which the liability or
responsibility is provided for herein and (ii) as provided in the agreement
referred to in Section 8.01(d), Pechiney Plastics shall be responsible for any
and all employment, compensation and benefit liabilities with respect to all
Transferred Employees and former employees of the Business (including but not
limited to Transferred Employees and former employees of the Business who, as of
the Separation Date, are on leave of absence, long-term disability, short-term
disability or layoff with recall rights) and eligible dependents and
beneficiaries of those persons.
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ARTICLE IX
TAX MATTERS
SECTION 9.01. Taxes; General. Any liability or other obligation
for any and all Taxes imposed or otherwise assessed on or with respect to the
Contributed Assets or the operations of the Business, including the
Subsidiaries, for any taxable period or portion thereof ending on or before the
Tax Separation Date ("Pre-Tax Separation Date Taxes") shall be for the account
of ANC and ANC shall indemnify and hold harmless Pechiney Plastics against any
such Pre-Tax Separation Date Taxes. Any liability or other obligation for any
and all Taxes imposed or otherwise assessed on or with respect to the
Contributed Assets or the operations of the Business, including the
Subsidiaries, for any taxable period or portion thereof beginning after the Tax
Separation Date ("Post-Tax Separation Date Taxes") shall be for the account of
Pechiney Plastics and Pechiney Plastics shall indemnify and hold harmless ANC
against any such Post-Tax Separation Date Taxes.
SECTION 9.02. Conveyance Taxes. ANC and Pechiney Plastics shall
each be 50% liable for any real property transfer or gains, sales, use,
transfer, value added, stock transfer, and stamp taxes, and any similar taxes
which become payable in connection with the transaction contemplated hereby
("Transfer Taxes"), and each party shall prepare and timely file all forms and
documents required to be filed in respect of such Transfer Taxes that are the
primary responsibility of such party under applicable Law.
SECTION 9.03. Section 351 Reporting Requirements. ANC shall
prepare and file any and all records, information statements and reporting
statements required to be prepared or filed under Treasury Regulation Section
1.351-3. Pechiney Plastics shall have the right to review and comment on any
such items prior to filing.
SECTION 9.04. Tax Benefits. ANC agrees that it will not take any
tax deduction or claim any other Tax benefit in respect of any Assumed Liability
paid by Pechiney Plastics. In the event that Pechiney Plastics pays any Assumed
Liability and ANC derives a net Tax benefit from such payment, then ANC shall
pay Pechiney Plastics the amount of any net Tax benefit actually realized by ANC
arising from the payment by Pechiney Plastics within 30 days after such Tax
benefit is actually realized by ANC. In computing the amount of any such Tax
benefit, ANC shall be deemed to recognize all other items of loss, deduction or
credit before recognizing any item arising from the payment of an Assumed
Liability. For purposes of this Section 9.04, ANC shall be deemed to have
"actually realized" a net Tax benefit to the extent that, and at such time as,
the amount of Taxes payable (including Taxes payable on an estimated basis) by
ANC is reduced below the amount of Taxes that ANC would be required to pay but
for the payment of such Assumed Liability. If any payments are made pursuant to
this Section 9.04 and the amount of such payment required by this Section 9.04
would have been different if the computation of such payment were made at a
later time (because of final settlements or final dispositions of audit
adjustments, administrative or judicial proceedings, amended returns, the
execution of Form 870-
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AD or successor forms or other reasons), then the amount of such payment shall
be recomputed by ANC and Pechiney Plastics at such later time by taking into
account such subsequent events and the parties shall make an adjusting payment
between each other as is appropriate because of such recomputation within 15
business days of their agreement as to the amount of such adjusting payment. For
purposes of this Section 9.04, references to ANC or Pechiney Plastics shall
include any subsidiary of ANC or Pechiney Plastics (as the case may be) and any
group which has ANC or Pechiney Plastics (as the case may be) or any such
subsidiary as a member and that files a Tax return on a combined, consolidated
or unitary basis.
ARTICLE X
POWER OF ATTORNEY
SECTION 10.01. ANC hereby constitutes and appoints Pechiney
Plastics, its successors and assigns, the true and lawful attorney and attorneys
of ANC, with full power of substitution, in the name of Pechiney Plastics or in
the name and stead of ANC, but on behalf of, for the benefit of, and at the
expense of Pechiney Plastics:
(a) to collect, demand and receive any and all Contributed Assets
transferred hereunder and to give receipts and releases for and in
respect of the same;
(b) to institute and prosecute in ANC's name, or otherwise, at the
expense and for the benefit of Pechiney Plastics any and all actions,
suits or proceedings, at law, in equity or otherwise, which Pechiney
Plastics may deem proper in order to collect, assert or enforce any
claim, right or title of any kind in or to the Contributed Assets
hereby assigned to Pechiney Plastics or intended so to be, to defend or
compromise any and all such actions, suits or proceedings in respect of
any of such Contributed Assets, and to do all such acts and things in
relation thereto as Pechiney Plastics shall deem advisable for the
collection or reduction to possession of any of such Contributed
Assets;
(c) to take any and all other reasonable actions designed to vest
more fully in Pechiney Plastics the Contributed Assets hereby assigned
to Pechiney Plastics or intended so to be and in order to provide for
Pechiney Plastics the benefit, use, enjoyment and possession of such
Contributed Assets.
ANC acknowledges that the foregoing powers are coupled with an
interest and shall be irrevocable by it or upon its subsequent dissolution or in
any manner or for any reason. Pechiney Plastics shall be entitled to retain for
its own account any amounts collected pursuant to the foregoing powers,
including any amounts payable as interest with respect thereto. ANC shall from
time to time pay to Pechiney Plastics, when received, any amounts which shall be
received directly or indirectly by ANC (including amounts received as interest)
in respect of any Contributed Assets sold, assigned or transferred to Pechiney
Plastics pursuant hereto.
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ARTICLE XI
INDEMNIFICATION
SECTION 11.01. Indemnification of Pechiney Plastics by ANC.
Subject to the terms and conditions of this Article XI, ANC agrees to indemnify,
defend and hold harmless Pechiney Plastics, its officers, directors, employees,
agents, successors and permitted assigns (each, an "Pechiney Plastics
Indemnitee") from and against any and all liabilities, losses, damages, claims,
costs and expenses, interest, awards, judgments and penalties (including,
without limitation, reasonable attorney's fees and expenses) actually suffered
or incurred by them (each, a "Pechiney Plastics Loss") resulting from, based
upon, or arising out of:
(i) the inaccuracy or untruth of any representation or warranty of
ANC contained in or made pursuant to this Agreement;
(ii) a breach of or failure to perform any covenant or agreement
of ANC made in this Agreement;
(iii) the Excluded Assets; and
(iv) the Excluded Liabilities.
SECTION 11.02. Indemnification of ANC by Pechiney Plastics.
Subject to the terms and conditions of this Agreement, Pechiney Plastics agrees
to indemnify, defend and hold harmless ANC, its officers, directors, employees,
agents, successors and permitted assigns (each, an "ANC Indemnitee") from and
against any and all liabilities, losses, damages, claims, costs and expenses,
interest, awards, judgments and penalties (including, without limitation,
reasonable attorney's fees and expenses) actually suffered or incurred by them
(each, an "ANC Loss") resulting from, based upon, or arising out of:
(i) the inaccuracy or untruth of any representation or warranty of
Pechiney Plastics contained in or made pursuant to this Agreement;
(ii) a breach of or failure to perform any covenant or agreement
of Pechiney Plastics made in this Agreement;
(iii) any and all liabilities relating to, or arising out of, the
patent infringement litigation instituted against ANC in the U.S.
District Court for the Northern District of Illinois in December 1993
by Viskase Corporation, the declaratory judgment action brought by ANC
against Viskase in May 1999, and various proceedings in the U.S. Patent
Office relating to the Viskase patents which are the subject of such
actions; and
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(iv) the Assumed Liabilities.
SECTION 11.03. Indemnification Procedures. An Indemnitee shall
give the indemnifying party notice of any matter which an Indemnitee determines
has given or could give rise to a right of indemnification under this Agreement,
within 60 days of such determination, stating the amount of the Loss, if known,
and method of computation thereof, and containing a reference to the provisions
of this Agreement in respect of which such right of indemnification is claimed
or arises. Subject to Section 11.04(b), the obligations and liabilities of the
indemnifying party under this Article XI with respect to Losses arising from
claims of any third party which are subject to the indemnification provided for
in this Article XI ("Third Party Claims") shall be governed by the following
additional terms and conditions: if an Indemnitee shall receive notice of any
Third Party Claim, the Indemnitee shall give the indemnifying party notice of
such Third Party Claim within 30 days of the receipt by the Indemnitee of such
notice; provided, however, that the failure to provide such notice shall not
release the indemnifying party from any of its obligations under this Article XI
except to the extent the indemnifying party is materially prejudiced by such
failure and shall not relieve the indemnifying party from any other obligation
or liability that it may have to any Indemnitee otherwise than under this
Article XI. If the indemnifying party acknowledges in writing its obligation to
indemnify the Indemnitee hereunder against any Losses that may result from such
Third Party Claim, then the indemnifying party shall be entitled to assume and
control the defense of such Third Party Claim at its expense and through counsel
of its choice upon notice of its intention to do so to the Indemnitee within 30
days of the receipt of such notice from the Indemnitee; provided, however, that
if there exists or is reasonably likely to exist a conflict of interest that
would make it inappropriate in the judgment of the Indemnitee for the same
counsel to represent both the Indemnitee and the indemnifying party, then the
Indemnitee shall be entitled to retain its own counsel (which shall not in any
way limit or restrict the right of the indemnifying party under this Section
11.03 to assume and control such Third Party Claim), in each jurisdiction for
which the Indemnitee determines counsel is required, at the expense of the
indemnifying party. In the event the indemnifying party exercises the right to
undertake any such defense against any such Third Party Claim, the Indemnitee
shall cooperate with the indemnifying party in such defense and make available
to the indemnifying party, at the indemnifying party's expense, all witnesses,
pertinent records, materials and information in the Indemnitee's possession or
under the Indemnitee's control relating thereto as is reasonably required by the
indemnifying party. Similarly, in the event the Indemnitee is, directly
conducting or participating in the defense against any such Third Party Claim,
the indemnifying party shall cooperate with the Indemnitee in such defense and
make available to the Indemnitee, at the indemnifying party's expense, all such
witnesses, records, materials and information in the indemnifying party's
possession or under the indemnifying party's control relating thereto as is
reasonably required by the Indemnitee. No Third Party Claim may be settled by
the indemnifying party without the written consent of the Indemnitee, unless the
settlement only requires payment of money damages which will be indemnified.
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SECTION 11.04. Adjustments for Taxes. (a) (i) Except as provided
in Section 11.04(a)(ii) in respect of an ANC Loss, the amount of any Loss shall
be: (i) increased to take into account any net Tax cost actually incurred by the
Indemnitee arising from any payments by the indemnifying party (grossed up to
take into account the net Tax cost actually incurred by the Indemnitee arising
from such increase), and (ii) reduced to take account of any net Tax benefit
actually realized by the Indemnitee arising from the incurrence or payment of
any such Loss. In computing the amount of such Tax cost or Tax benefit, the
Indemnitee shall be deemed to recognize all other items of income, gain, loss,
deduction or credit before recognizing any item arising from the receipt or
accrual of any indemnity payment hereunder with respect to a Loss or the
incurrence or payment of any amount indemnified against in respect of a Loss,
except that, in the case of an ANC Loss, ANC shall be deemed to recognize any
Tax deduction or other Tax benefit arising from the incurrence or payment of any
such ANC Loss before recognizing any other items of loss, deduction (including,
without limitation, carryforwards of net operating losses from prior periods) or
credit or other Tax benefit for tax years or portions thereof starting in 2004
and thereafter. For purposes of this Agreement, the Indemnitee shall be deemed
to have "actually incurred" or "actually realized" a net Tax cost or a net Tax
benefit to the extent that and at such time as, the amount of Taxes payable
(including Taxes payable on estimated basis) by such Indemnitee is increased
above or reduced below, as the case may be, the amount of Taxes that such
Indemnitee would be required to pay, but for the receipt or accrual of the
indemnity payment or the incurrence or payment of such indemnified amount, as
the case may be. Any indemnity payment made hereunder shall be increased or
reduced to reflect any such net Tax cost (including gross-up) or net Tax benefit
and payment shall be made to reflect such increase or reduction between the
Indemnitee and the indemnifying party within 30 days after the Indemnitee has
actually realized such Tax cost or benefit. For purposes of this Section
11.04(a)(i), references to an Indemnitee shall include any subsidiary of such
Indemnitee and any group which has such Indemnitee or any such subsidiary as a
member and that files a Tax return on a combined, consolidated or unitary basis.
(ii) In the event the parties agree in writing on or before the
Distribution Date on a discount percentage (the "Discount Percentage") which
shall be used to compute the Discounted Tax Rate (as defined below), then the
amount of any ANC Loss indemnified against by Pechiney Plastics pursuant to
Section 11.02 shall be: (A) increased by (1) the product of the amount of any
taxable income to ANC arising from the receipt or accrual of an indemnity
payment from Pechiney Plastics for any ANC Loss and the Discounted Tax Rate and
(2) the amount of any other item of income or gain (each a "Tax Cost Item")
which increases the Tax liability of ANC to the extent the Tax Cost Item is
attributable to the receipt or accrual of an indemnity payment by Pechiney
Plastics in respect of an ANC Loss; and (B) reduced by (1) the product of the
amount of any income tax deduction for ANC arising from the incurrence or
payment of any such ANC Loss and the Discounted Tax Rate and (2) the amount of
any other Tax credit, benefit, or similar item, including without limitation, an
increase in the tax basis for ANC in its shares of Pechiney Plastics prior to
the Distribution Date, (each a "Tax Benefit Item"), that reduces the Tax
liability of ANC to the extent the Tax Benefit Item is attributable to the
incurrence or payment of any such ANC
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Loss or payment of an amount indemnified against by Pechiney Plastics in respect
of such ANC Loss. In the case of any Tax, the Discounted Tax Rate shall mean the
product of the Discount Percentage and the maximum marginal statutory rate for
such Tax for corporations (exclusive of any surtax or other marginal rate
imposed in lieu of a surtax to eliminate the benefit of lower rates) in effect
for the Tax period to which the taxable income or tax deduction for ANC is taken
into account in computing its Tax liability. If the parties cannot agree in
writing on the Discount Percentage on or before the Distribution Date, then this
Section 11.04(a)(ii) shall have no force and effect and Section 11.04(a)(i)
shall control. For purposes of this Section 11.04(a)(ii) references to ANC shall
include any subsidiary of ANC and any group which has ANC or any subsidiary of
ANC as a member and that files a Tax return on a combined, consolidated or
unitary basis.
(iii) If any indemnity payments are made pursuant to Section 11.01
or 11.02 (as adjusted pursuant to this Section 11.04(a)) and the amount of the
adjustment required by this Section 11.04(a) would have been different if the
computation of such indemnification payment were made at a later time (because
of final settlements or final dispositions of audit adjustments, administrative
or judicial proceedings, amended returns, the execution of Form 870-AD or
successor forms or other reasons), then the amount of such adjustment shall be
recomputed by the Indemnitee and the indemnifying party at such later time by
taking into account such subsequent events and the parties shall make an
adjusting payment between each other as is appropriate because of such
recomputation within 15 business days of their agreement as to the amount of
such adjusting payment. The Indemnitee and the indemnifying party shall notify
each other promptly of any change or event that would give rise to such a
recomputation of an adjustment as required by this Section 11.04(a).
(b) ANC shall consult with Pechiney Plastics and ANC and Pechiney
Plastics shall jointly determine the Tax treatment by ANC of any indemnity
payment, loss, expense or other amount indemnified against by Pechiney Plastics
provided that neither ANC nor Pechiney Plastics shall be required to take a
position on any Tax return for which there is no reasonable basis. The parties
shall report the payments consistent with the treatment as determined by them
for Tax purposes. In the event that ANC and Pechiney Plastics differ on the Tax
treatment for an item and ANC takes a position on its Tax return as requested by
Pechiney Plastics, Pechiney Plastics will pay and indemnify ANC for the interest
and penalties imposed on ANC as a result of a successful challenge by a Taxing
authority to the position taken by ANC at Pechiney Plastics' request and the
parties will enter into an agreement (reasonably satisfactory to each) by which
Pechiney Plastics will indemnify ANC against any net incremental Tax cost to ANC
without duplication of adjustments provided under Section 11.04(a).
(c) (i) ANC shall notify Pechiney Plastics promptly (and in any
event within seven business days) after receipt by ANC of written notice of any
demand or claim or information request by a Taxing authority relating to the Tax
treatment of an indemnity payment, loss, expense or other amount indemnified
against by Pechiney Plastics or other item used to make the
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computations required by Section 11.04(a) or (b). Such notice shall contain
factual information (to the extent known to ANC) describing the asserted tax
treatment in reasonable detail and shall include copies of any notice or other
document received from any Taxing authority.
(ii) If Pechiney Plastics requests within 30 days (or sooner if
the nature of the proposed adjustment so requires) after the notice by ANC
referred to in Section 11.04(c)(i) above that a proposed adjustment in respect
of Taxes be contested, ANC shall contest the proposed adjustment in good faith
by appropriate administrative and/or judicial processes, as directed by Pechiney
Plastics; provided, that (i) ANC shall determine the court of competent
jurisdiction in which to contest the proposed adjustment either before or after
payment of the Tax asserted to be payable as a result thereof, (ii) Pechiney
Plastics shall control with counsel selected by Pechiney Plastics (provided,
that such counsel is not reasonably objected to by ANC) the prosecution of any
contested adjustment or asserted deficiency arising from any amount indemnified
against by Pechiney Plastics, (iii) Pechiney Plastics shall keep ANC informed as
to the progress of any administrative or judicial contest or litigation and, if
requested by ANC, shall consult with ANC's tax counsel, and (iv) Pechiney
Plastics shall not settle, compromise or otherwise concede the adjustment or
deficiency that Pechiney Plastics is contesting without the consent of ANC,
which consent shall not be unreasonably withheld. ANC shall not be required to
take any action pursuant to this Section 11.04(c)(ii) in respect of a contest
relating to an amount indemnified against by Pechiney Plastics unless Pechiney
Plastics shall have agreed to pay (with no net after-Tax cost to ANC) all
penalties, interest and additions to tax that ANC may incur in connection with
contesting such proposed adjustment. Pechiney Plastics shall pay all
out-of-pocket expenses and costs relating to a contest of an adjustment relating
to an amount indemnified against by Pechiney Plastics, including but not limited
to fees for attorneys, accountants, expert witnesses or other consultants
retained by (or selected or controlled by) Pechiney Plastics incurred at any
time during which Pechiney Plastics is controlling and directing the proceeding
in respect of which such fees are incurred.
(iii) If asserted liabilities unrelated to the matters
contemplated herein become grouped with contests arising hereunder, the parties
shall use their respective best efforts to cause the contest arising hereunder
to be the subject of a separate proceeding. If such severance is not possible,
Pechiney Plastics shall control the prosecution of any contested adjustment or
asserted deficiency arising from or otherwise attributable to an amount
indemnified against or an indemnity payment by Pechiney Plastics, and any Tax
items related thereto, and ANC shall have sole discretion to determine the court
of competent jurisdiction in which to contest the proposed adjustment either
before or after payment of the tax asserted to be payable, provided that ANC
shall not settle, compromise or otherwise concede any such contested adjustment
or asserted deficiency without the consent of Pechiney Plastics. If ANC pays a
disputed amount of Taxes resulting from an amount indemnified against or
indemnity payment by Pechiney Plastics, and files claim or brings suit for
refund, Pechiney Plastics shall advance the disputed amount of Taxes (but only
to the extent of the portion of such disputed Taxes as is attributable to the
amount indemnified against or indemnity payment by Pechiney Plastics) to
ANC within 15 business
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days of such payment of disputed Taxes by ANC. If ANC subsequently receives a
refund, credit or offset, of all or a part of the amount of disputed Taxes
advanced by Pechiney Plastics, ANC shall promptly pay (and in any event within
15 business days) to Pechiney Plastics an amount equal to the portion of such
refund, credit, or offset attributable to the amount indemnified against by
Pechiney Plastics together with any interest received (including by credit or
offset) by ANC from the Taxing authority with respect to such portion. With
respect to matters arising hereunder controlled by Pechiney Plastics, and where
deemed necessary by Pechiney Plastics, ANC shall authorize by appropriate powers
of attorney such persons as Pechiney Plastics shall designate to represent ANC,
with respect to such matters.
SECTION 11.05. Survival of Indemnities. The obligations of ANC and
Pechiney Plastics under this Article XI shall survive the sale or other transfer
by any of them of any assets or businesses or the assignment by any of them of
any assumed liabilities, with respect to any Loss of any Indemnitee related to
such assets, businesses or liabilities.
ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.01. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Illinois, applicable
to contracts executed in and to be performed entirely within that state.
SECTION 12.02. Currency. Unless otherwise specified in this
Agreement, all references to currency, monetary values and dollars set forth
herein mean United States (U.S.) Dollars and all payments hereunder shall be
made in United States Dollars.
SECTION 12.03. Specific Performance. Each of the parties
acknowledges that money damages would not be a sufficient remedy for any breach
of this Agreement and that irreparable harm would result if this Agreement were
not specifically enforced. Therefore, the rights and obligations of the parties
under this Agreement shall be enforceable by a decree of specific performance
issued by any court of competent jurisdiction, and appropriate injunctive relief
may be applied for and granted in connection therewith. A party's right to
specific performance shall be in addition to all other legal or equitable
remedies available to such party.
SECTION 12.04. Waiver of Jury Trial. Each of the parties
irrevocably waives to the extent permitted by law all rights to trial by jury in
any action, proceeding or counterclaim arising out of or relating to this
Agreement.
SECTION 12.05. Headings. The article and section headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
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SECTION 12.06. Entire Agreement. This Agreement and the Ancillary
Agreements embody the entire agreement and understanding of the parties hereto
in respect of the subject matter contained herein and therein and supersede all
prior agreements and understandings between the parties with respect to the
subject matter hereof and thereof.
SECTION 12.07. Severability. If any one or more provisions
contained in this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement, but
this Agreement shall be construed as if such invalid, illegal, or unenforceable
provision had never been contained herein.
SECTION 12.08. No Third Party Beneficiaries. Except for the
provisions of Article XI relating to Indemnification, this Agreement shall be
binding upon and inure solely to the benefit of the parties hereto and their
permitted assigns and nothing herein, express or implied, is intended to or
shall confer upon any other Person any legal or equitable right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
SECTION 12.09. Arbitration. (a) Any controversy, claim or dispute
arising out of or in connection with this Agreement or the breach, termination,
enforceability or validity hereof, including without limitation the
determination of the scope or applicability of the agreement to arbitrate set
forth in this Section 12.09, shall be fully and finally determined exclusively
by binding arbitration in accordance with the Commercial Arbitration Rules of
the American Arbitration Association (the "AAA Rules"). The seat of the
arbitration shall be the City of Chicago, State of Illinois. The arbitral
tribunal shall be comprised of three arbitrators appointed in accordance with
the AAA Rules.
(b) No provision of, nor the exercise of any rights under, this
Section 12.09 shall limit the right of any party to request and obtain from a
court of competent jurisdiction in the City of Chicago, State of Illinois (which
shall have exclusive jurisdiction for purposes of this Section 12.09(b)) before,
during or after the pendency of any arbitration, solely for the purpose of
seeking provisional or conservatory remedies in aid of the arbitration,
including, but not limited to, injunctive relief, in accordance with the AAA
Rules. The institution and maintenance of an action or judicial proceeding for,
or pursuit of, provisional or conservatory remedies shall not constitute a
waiver of the right of any party, even if it is the plaintiff, to submit the
dispute to arbitration if such party would otherwise have such right.
(c) Judgment upon the award rendered may be entered in any court
having jurisdiction. The parties hereby expressly consent to the nonexclusive
jurisdiction of the state and federal courts situated in the City of Chicago,
State of Illinois for this purpose and waive objection to the venue of any
proceeding in such court or that such court provides an inconvenient forum.
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(d) Each of the parties shall, subject to the award of the
arbitrators, pay an equal share of the arbitrators' fees. The arbitrators shall
have the power to award recovery of all costs (including attorneys' fees,
administrative fees, arbitrators' fees and court costs) to the prevailing party.
SECTION 12.10. Assignment. This Agreement or any rights or
obligations arising hereunder may not be assigned by operation of Law or
otherwise without the express written consent of ANC and Pechiney Plastics
(which consent may be granted or withheld in the sole discretion of ANC and
Pechiney Plastics); provided, however, that (i) Pechiney Plastics may assign
this Agreement, in whole and not in part, or any of its rights hereunder, to an
Affiliate of Pechiney Plastics, without the consent of ANC (provided that
Pechiney Plastics shall nevertheless remain obligated to perform its obligations
hereunder following any such assignment), and (ii) ANC may assign this
Agreement, in whole and not in part, to a Person who acquires all or
substantially all of the assets and liabilities of ANC, without the consent of
Pechiney Plastics.
SECTION 12.11. Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument and shall become a
binding Agreement when one or more of the counterparts have been signed by each
of the parties and delivered to the other party.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
AMERICAN NATIONAL CAN COMPANY
By:
-----------------------------------
Name:
Title:
PECHINEY PLASTIC PACKAGING, INC.
By:
-----------------------------------
Name:
Title:
33
EXHIBIT A
INTELLECTUAL PROPERTY ASSIGNMENT AGREEMENT
This INTELLECTUAL PROPERTY ASSIGNMENT AGREEMENT (the "Agreement"),
dated as of May 31, 1999, is entered by and between AMERICAN NATIONAL CAN
COMPANY, a Delaware corporation, having a place of business at 0000 X. Xxxx Xxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx ("ANC"), and PECHINEY PLASTIC PACKAGING, INC., a
Delaware corporation, having a place of business at 0000 X. Xxxx Xxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx ("Pechiney Plastics").
WHEREAS, ANC and Pechiney Plastics have entered into a
Contribution, Assignment and Assumption Agreement, dated as of May 31, 1999 (the
"Contribution Agreement");
WHEREAS, the Contribution Agreement requires ANC and Pechiney
Plastics to execute and deliver this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual
agreements and covenants set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
SECTION 1. Definitions. As used in this Agreement, the following
terms shall have the meanings set forth below.
"Patents" means the patents and patent applications set forth
on Schedule A, all reissues, divisions, continuations,
continuations-in-part, extensions and reexaminations thereof, and all
rights therein provided by international treaties or conventions.
"Trademarks" means the trademarks and service marks set forth
on Schedule B, the goodwill of the business symbolized thereby, all
common law rights with respect thereto, all applications and
registrations thereof, all rights therein provided by international
treaties or conventions, and all extensions and renewals thereof.
SECTION 2. Transfer and Assignment of Intellectual Property. ANC
hereby sells, assigns, and transfers to Pechiney Plastics all of its right,
title and interest in and to the Patents, Trademarks, and the goodwill of the
business symbolized by the Trademarks.
SECTION 3. Governmental Filings. ANC shall furnish Pechiney
Plastics with such necessary information and reasonable assistance, including
execution of such other required documents, as Pechiney Plastics may reasonably
request in connection with recording its ownership interest in the Patents and
Trademarks, with any governmental authority.
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SECTION 4. Construction. The parties agree that, to the extent
that any terms or provisions of this Agreement differ or conflict with any
provision or term of the Contribution Agreement, the applicable terms and
provisions of the Contribution Agreement shall control and take precedence.
SECTION 5. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Illinois, United States
of America, without giving effect to the conflicts of law principles thereof.
SECTION 6. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original but all of
which taken together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, ANC has caused this Agreement to be executed
as of the date and year first above written.
AMERICAN NATIONAL CAN COMPANY
By
----------------------------------
Name:
Title:
PECHINEY PLASTIC PACKAGING, INC.
By
----------------------------------
Name:
Title:
36
SCHEDULE A
PATENTS
[Schedule to contain the list of Contributed Patents set
forth in Schedule 1.01A of the Contribution Agreement]
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SCHEDULE B
TRADEMARKS
[Schedule to contain the list of Contributed Trademarks set
forth in Schedule 1.01B of the Contribution Agreement]
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SCHEDULE 1.01A
CONTRIBUTED PATENTS
[see attached list]
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SCHEDULE 1.01B
CONTRIBUTED TRADEMARKS
[see attached list]
40
SCHEDULE 1.01C
SUBSIDIARIES
Name Jurisdiction of Incorporation
---- -----------------------------
ANC-Respire, L.L.C. Illinois
American National Can Canada, Inc. Ontario, Canada
Kenpak, Incorporated California
Guardian Packaging Corporation California
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SCHEDULE 2.01(n)
CONTRIBUTED REAL PROPERTY
[see attached list]
42
SCHEDULE 3.01(c)
CERTAIN ASSUMED LITIGATION LIABILITIES
[see attached list]
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SCHEDULE 3.01(f)
PRO-FORMA BALANCE SHEET
[see attached]
44
SCHEDULE 8.02
PECHINEY PLASTIC PACKAGING, INC.
COLLECTIVE BARGAINING AGREEMENTS
1. Agreement between American National Can Company, on behalf of its
Batavia, IL Bottle Plant and the Union of Needletrades, Industrial and
Textile Employees, A.F.L.-C.I.O., C.L.C. and its Local No. 1557,
effective July 18, 1998 through July 21, 2001.
2. Agreement between American National Can Company, on behalf of its
Batavia, IL Flexible Packaging Plant and the General Teamsters,
Chauffeurs, Salesdrivers & Helpers Union, Local #673, effective
February 1, 1995 through April 30, 1999 and subsequently extended
through May 31, 1999.
3. Agreement between American National Can Company with respect only to
its Menasha Plant in Menasha, Wisconsin; the Neenah Plant and Graphic
Center in Neenah, Wisconsin; and the Des Moines Plant in Des Moines,
Iowa and the Graphic Communications International Union and Locals
#77-P and #727-S, effective July 1, 1998 through June 30, 2001.
4. Agreement between American National Can Company with respect only to
its Graphics Center, located in Neenah, Wisconsin and the Engravers
Chapel of the Graphic Communications International Union and its Fox
Valley Local #77-P, effective November 1, 1997 through October 31,
2000.
5. Agreement between American National Can Company with respect only to
its Minneapolis, Minnesota Plant and the Twin Cities Printing Trades
Union No. 29-C, effective May 1, 1997 through April 30, 2000.
6. Agreement between American National Can Company, Newark, California
Plant, party of the first part, and the Graphic Communications Union
District Council No. 2, Local 388M, party of the second part, effective
August 1, 1997 through July 31, 2001.
7. Agreement between American National Can Company, on behalf of its Saint
Louis Park, Minnesota Flexible Packaging Plant and the Upper Midwest
Local #1-M, Graphic Communications International Union, effective
February 29, 1996 through February 28, 1999.
8. Agreement between American National Can Company with respect to its
Cleveland Operations in Cleveland, Ohio and the United Steelworkers of
America, on behalf of Local Union 15489, effective April 28, 1996
through April 29, 2001.
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9. Agreement between American National Can Company with respect only to
its Neenah Plant, Pilot Plant and Graphics Center in Neenah, Wisconsin;
and its Menasha Plant in Menasha, Wisconsin and the United Paperworkers
International Union and its Local #148, effective August 1, 1996
through July 31, 1999.
10. Agreement between American National Can Company, Menasha, Wisconsin and
the International Association of Machinists and Aerospace Workers and
its Local #1855, effective October 1, 1996 through September 30, 1999.
11. National Master Freight Agreement Covering Over-The-Road and Local
Cartage Employees of Private, Common, Contract and Local Cartage
Carriers, between the Company as a participating employer and the
National Freight Industry Negotiating Committee representing Local
Unions affiliated with the International Brotherhood of Teamsters,
Chauffeurs, Chauffeurs & Helpers Union, and Local Union #563, effective
April 1, 1998 through March 31, 2003.
46
SCHEDULE 8.03
ASSUMED OPEB OBLIGATIONS
[see attached list]
