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EXHIBIT 99.1
STOCK PURCHASE AGREEMENT
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THIS STOCK PURCHASE AGREEMENT (this "Agreement") is entered
into as of this 3rd day of December, 1996, by and among Kirtland Capital
Partners II L.P., an Ohio limited partnership (the "Buyer"), PVC Container
Corporation, a Delaware corporation (the "Company"), and Xxxxx Anstalt, a
Liechtenstein anstalt (the "Seller").
RECITALS
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A. The Company has 7,004,705 shares of common stock,
par value $.01 per share (the "Shares"), issued and outstanding;
and
B. The Seller is the sole record and beneficial owner
of 4,367,415 Shares (the "Purchase Shares"); and
C. The Seller is willing to sell, and the Buyer is
willing to purchase, all of the Purchase Shares on the terms set
forth herein;
OPERATIVE PROVISIONS
--------------------
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants, conditions and agreements
herein contained, and intending to be legally bound, the parties hereto hereby
agree as follows:
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ARTICLE I
PURCHASE AND SALE OF THE PURCHASE SHARES
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1.1 SALE OF THE PURCHASE SHARES. At the Closing (as
hereinafter defined), the Seller shall sell, convey, transfer and deliver to the
Buyer and the Buyer shall purchase and acquire from the Seller, the Purchase
Shares free and clear of any and all liens, pledges, charges, proxies, equities,
encumbrances, contracts, commitments, title retention agreements, restrictions
on transfer (except under applicable securities laws), security interests,
warrants, options, rights or adverse claims of others of any nature with respect
thereto (collectively, the "Liens").
1.2 PURCHASE PRICE. At the Closing and in consideration for
the Purchase Shares, the Buyer shall pay to the Seller the aggregate sum of U.S.
$17,469,660 (the "Purchase Price") by wire transfer of immediately available
funds to such account of the Seller as the Seller shall specify in writing to
the Buyer.
ARTICLE II
CLOSING AND CLOSING DATE
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2.1 THE CLOSING. The closing of the transactions contemplated
by this Agreement (the "Closing") shall take place at the offices of Xxxxx, Day,
Xxxxxx & Xxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx on December 12, 1996
subject to the satisfaction or waiver of each of the conditions set forth in
Article IX hereof or such other time and place as the Buyer, the
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Company and the Seller shall agree (such date is referred to in this Agreement
as the "Closing Date").
2.2 DELIVERIES AT THE CLOSING. At the Closing, (a) the Seller
shall deliver to the Buyer the various certificates, instruments and documents
referred to in Section 6.1 hereof, (b) the Company shall deliver to the Buyer
the various certificates, instruments and documents referred to in Section 6.3
hereof, and (c) the Buyer shall deliver to the Seller the Purchase Price as
provided in Section 6.2 hereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
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The Seller hereby represents and warrants to the Buyer
as follows:
3.1 CORPORATE STATUS. The Seller is an anstalt duly organized,
validly existing and in good standing under the laws of Liechtenstein. The
Seller has all requisite power and authority to own, lease and operate its
properties and to carry on its business as now being conducted. The Seller has
heretofore made available to the Buyer true, correct and complete copy of its
Statutes.
3.2 AUTHORITY AND CAPACITY FOR AGREEMENTS. The Seller has all
requisite power, authority and capacity to execute and deliver this Agreement
and to carry out and perform its obligations hereunder. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary corporate
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action on the part of the Seller. This Agreement has been duly executed and
delivered by the Seller and constitutes the valid and legally binding obligation
of the Seller enforceable in accordance with its terms except that the
enforcement hereof may be limited by (a) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally and (b) general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or in equity).
3.3 NONCONTRAVENTION. Neither the execution, delivery and
performance by the Seller of this Agreement and the consummation (in accordance
with the terms hereof) of the transactions contemplated hereby, nor compliance
by the Seller with any of the provisions hereof will violate, conflict with, or
result in (with or without the giving of notice or the lapse of time or both) a
default under or a breach or violation of, any provision of (a) the Statutes of
the Seller, (b) any mortgage, indenture, lease, contract, deed, agreement or
other instrument to which the Seller is a party or by which it is bound or to
which any of its properties or assets is subject, (c) any law, rule or
regulation of any governmental body (whether domestic or foreign), or (d) any
order, judgment or decree of any court or other governmental body (whether
domestic or foreign). Except as otherwise provided in SCHEDULE 3.3 attached
hereto, no consent, approval, authorization, order, filing, registration,
declaration or qualification of or with any court, governmental body (whether
domestic or foreign) or third person is required to be obtained
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by or on behalf of the Seller in connection with the execution and delivery of
this Agreement or the consummation of the transactions contemplated hereby.
3.4 TITLE TO THE PURCHASE SHARES. The Seller is the sole
record and beneficial owner of the Purchase Shares, free and clear of any and
all Liens. The Purchase Shares represent (a) all of the Shares owned, directly
or indirectly, by the Seller or any of its Affiliates (as hereinafter defined),
and (b) 63% of the issued and outstanding Shares. Each of the Purchase Shares
has been duly and validly authorized and issued and is fully paid and
non-assessable. Neither the Seller nor any of its Affiliates has, directly or
indirectly, any outstanding rights, options, warrants, conversion rights, calls,
puts or agreements of any nature to purchase or acquire any Shares from the
Company or any other person or entity. The Seller is not a party to any (a)
voting trust, proxy, or other agreement or understanding with respect to the
voting of any of the Shares, or (b) option, warrant, purchase right or other
contract or commitment that requires the Seller to sell, transfer or otherwise
dispose of any of the Purchase Shares (other than pursuant to this Agreement).
Upon the delivery of and payment for the Purchase Shares as provided in this
Agreement, the Buyer shall acquire good, marketable and valid title to the
Purchase Shares, free and clear of any and all Liens. For purposes of this
Agreement, "Affiliate" of any person or entity means any person or entity
directly or indirectly controlling, controlled by, or under common control with,
any such person or entity.
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3.5 NO BROKERS. Neither the Seller nor any Affiliate of the
Seller has retained or been approached by any broker, finder or agent in
connection with this Agreement or the transactions contemplated hereby.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
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The Company hereby represents and warrants to the Buyer as
follows:
4.1 CORPORATE STATUS. The Company is a corporation duly
organized, validly existing and in good standing under the laws of Delaware. The
Company is duly qualified to do business as a foreign corporation and is in good
standing in the jurisdictions set forth on SCHEDULE 4.1 attached hereto, which
are the only jurisdictions in which the Company is required to be so qualified.
The Company has all requisite power and authority to own, lease and operate its
properties and to carry on its business as now being conducted. The Company has
heretofore made available to the Buyer true, correct and complete copies of its
Certificate of Incorporation and By-Laws.
4.2 SUBSIDIARIES. SCHEDULE 4.2 attached hereto identifies each
entity in which the Company owns, directly or indirectly, any shares of capital
stock or other equity securities (collectively, the "Subsidiaries"). SCHEDULE
4.2 includes for each Subsidiary (a) the name of such Subsidiary, (b) the
authorized capital stock of such Subsidiary and the number of shares of such
stock owned, directly or indirectly, by
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the Company, and (c) the jurisdiction of incorporation of such Subsidiary. All
of the issued and outstanding shares of capital stock of each Subsidiary are
duly authorized, validly issued, fully paid and nonassessable. No bonds,
debentures, notes or other instruments or evidence of indebtedness having the
right to vote (or convertible into, or exercisable or exchangeable for,
securities having the right to vote) on any matters on which stockholders of any
Subsidiary may vote ("Subsidiary Voting Debt") are issued or outstanding. Except
as set forth in SCHEDULE 4.2, there are outstanding: (a) no shares of capital
stock, Subsidiary Voting Debt or other voting securities of any Subsidiary; (b)
no securities of any Subsidiary convertible into, or exchangeable or exercisable
for, shares of capital stock of any Subsidiary, Subsidiary Voting Debt or other
voting securities of any Subsidiary, and (c) no options, warrants, calls, puts,
rights (including, without limitation, preemptive rights), commitments or
agreements to which any Subsidiary is a party or by which it is bound, in any
case obligating any Subsidiary to issue, deliver, sell, purchase, redeem or
acquire, or cause to be issued, delivered, sold, purchased, redeemed or
acquired, additional shares of capital stock of any Subsidiary or other voting
securities of any Subsidiary, or obligating any Subsidiary to grant, execute or
enter into any such option, warrant, call, put, right, commitment or agreement.
Except as otherwise disclosed on SCHEDULE 4.2 attached hereto, the Company,
directly or indirectly, has good and marketable title to, and is the sole legal
and beneficial owner of, all of the issued and outstanding
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shares of capital stock of each Subsidiary, free and clear of any and all Liens.
Each Subsidiary is duly incorporated, validly existing and in good standing
under the laws of the jurisdiction of its incorporation as set forth on SCHEDULE
4.2 and is duly qualified to do business as a foreign corporation and is in good
standing in the jurisdictions set forth on SCHEDULE 4.2 attached hereto, which
are the only jurisdictions in which any such Subsidiary is required to be
qualified. Each Subsidiary has all requisite power and authority to own, lease
and operate its properties and to carry on its business as now being conducted.
4.3 AUTHORITY AND CAPACITY FOR AGREEMENT. The Company has all
requisite power, authority and capacity to execute and deliver this Agreement
and to carry out and perform its obligations hereunder. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary corporate action on the part
of the Company. This Agreement has been duly executed and delivered by the
Company and constitutes the valid and legally binding obligation of the Company
enforceable in accordance with its terms except that the enforcement hereof may
be limited by (a) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights generally
and (b) general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity).
4.4 NONCONTRAVENTION. Neither the execution, delivery and
performance by the Company of this Agreement and the
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consummation (in accordance with the terms hereof) of the transactions
contemplated hereby, nor compliance by the Company with any of the provisions
hereof will violate, conflict with, or result in (with or without the giving of
notice or the lapse of time or both) a default under or a breach or violation
of, any provision of (a) the Certificate of Incorporation or By-Laws of the
Company, (b) any mortgage, indenture, lease, contract, deed, agreement or other
instrument to which the Company is a party or by which it is bound or to which
any of its properties or assets is subject, (c) any law, rule or regulation of
any governmental body (whether domestic or foreign), or (d) any order, judgment
or decree of any court or other governmental body (whether domestic or foreign).
Neither the Company nor any of its Subsidiaries is a party to or otherwise bound
by any agreement or other instrument providing for the payment of any benefit as
a result of the consummation of the transactions contemplated hereby. Except as
otherwise provided in SCHEDULE 4.4 attached hereto, no consent, approval,
authorization, order, filing, registration, declaration or qualification of or
with any court, governmental body (whether domestic or foreign) or third person
is required to be obtained by or on behalf of the Company in connection with the
execution and delivery of this Agreement or the consummation of the transactions
contemplated hereby.
4.5 CAPITAL STRUCTURE. The authorized capital stock of the
Company consists solely of (a) 10,000,000 shares of common stock, par value $.01
per share, of which 7,004,705 are issued and outstanding, and (b) 1,000,000
shares of preferred stock, par
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value $1.00 per share, of which none are issued and outstanding. There are no
employment, executive termination or similar agreements providing for the
issuance of any shares of capital stock of the Company. No bonds, debentures,
notes or other instruments or evidence of indebtedness having the right to vote
(or convertible into, or exercisable or exchangeable for, securities having the
right to vote) on any matters on which the Company's stockholders may vote (the
"Company Voting Debt") are issued or outstanding. Except as set forth in this
Section 4.5, there are outstanding: (a) no Shares, Company Voting Debt or other
voting securities of the Company; (b) no securities of the Company convertible
into, or exchangeable or exercisable for, Shares, Company Voting Debt or other
voting securities of the Company; and (c) no options, warrants, calls, puts,
rights (including, without limitation, preemptive rights), commitments or
agreements to which the Company is a party or by which it is bound, in any case
obligating the Company to issue, deliver, sell, purchase, redeem or acquire, or
cause to be issued, delivered, sold, purchased, redeemed or acquired, additional
shares of capital stock or any Company Voting Debt or other voting securities of
the Company, or obligating the Company to grant, extend or enter into any such
option, warrant, call, put, right, commitment or agreement. There are not any
stockholder agreements, voting trusts or other agreements or understandings to
which the Company is a party or by which it is bound relating to the voting of
any Shares that will limit in any way the
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solicitation of proxies by or on behalf of the Company from, or the casting of
votes by, the stockholders of the Company.
4.6 SEC FILINGS. Each report, schedule, registration statement
and definitive proxy statement filed by the Company (the "Company SEC
Documents") with the Securities and Exchange Commission (the "SEC") complied in
all material respects with the requirements of the Securities Act of 1933, as
amended (the "Securities Act"), or the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), as the case may be, and the rules and regulations
of the SEC promulgated thereunder applicable to such Company SEC Documents. None
of the Company SEC Documents contained any untrue statement of material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading. The financial statements of the Company included in the
Company SEC Documents complied as to form in all material respects with the
published rules and regulations of the SEC with respect thereto, were prepared
in accordance with generally accepted accounting principals ("GAAP") applied on
a consistent basis during the periods involved and present fairly, in all
material respects, in accordance with applicable requirements of GAAP the
consolidated financial position of the Company and its consolidated subsidiaries
as of their respective dates and the consolidated results of operations and the
consolidated cash flows of the Company and its consolidated subsidiaries for the
periods presented therein.
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4.7 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as disclosed
in the Company SEC Documents, since September 30, 1996, the business of the
Company has been carried on only in the ordinary and usual course and there has
not been any adverse change in its business, results of operations or financial
condition.
4.8 COMPLIANCE WITH APPLICABLE LAWS. To the knowledge of the
Company, the Company and its Subsidiaries hold all permits, licenses, variances,
exemptions, orders, franchises and approvals of all governmental bodies
necessary for the lawful conduct of their respective businesses (the "Company
Permits"). To the knowledge of the Company and except as disclosed in the
Company SEC Documents, the businesses of the Company and its Subsidiaries are
not being conducted in violation of any law, ordinance or regulation of any
governmental body. To the knowledge of the Company, no investigation or review
by any governmental body with respect to the Company or any of its Subsidiaries
is pending or threatened.
4.9 LITIGATION. To the knowledge of the Company and except as
disclosed in the Company SEC Documents, there is no suit, action or proceeding
pending or threatened against or affecting the Company or any Subsidiary of the
Company, nor is there any written judgement, decree, injunction, rule or order
of any governmental body or arbitrator outstanding against the Company or any
Subsidiary of the Company, which is reasonably likely to result in a material
adverse effect on the Company or its ability to consummate the transactions
contemplated hereby.
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4.10 TAXES. (a) To the knowledge of the Company, except as set
forth in SCHEDULE 4.10(A), (i) all Tax (as hereinafter defined) returns,
statements, reports and forms (including estimated tax or information returns
and reports) required to be filed with any Taxing Authority (as hereinafter
defined) with respect to any Pre-Closing Tax Period (as hereinafter defined) by
or on behalf of the Company or any Subsidiary (collectively, the "Returns")
have, to the extent required to be filed on or before the date hereof, been
filed when due in accordance with all applicable laws; (ii) as of the time of
filing, the Returns correctly reflected the facts regarding the income,
business, assets, operations, activities and status of the Company and its
Subsidiaries; (iii) all Taxes shown as due and payable on the Returns that have
been filed have been timely paid, or withheld and remitted to the appropriate
Taxing Authority; (iv) the reserves established for Taxes with respect to the
Company and its Subsidiaries for any Pre-Closing Tax Period (including any
Pre-Closing Tax Period for which no Return has yet been filed) reflected on the
books of the Company and its Subsidiaries (excluding any provision for deferred
income taxes) are adequate in accordance with GAAP; (v) neither the Company nor
any Subsidiary is delinquent in the payment of any Tax or has requested any
extension of time within which to file any Return except for extensions granted
as a matter of right; (vi) neither the Company nor any Subsidiary (or any member
of any affiliated, consolidated, combined or unitary group of which the Company
or any Subsidiary is or has been a member) has granted
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any extension or waiver of the statute of limitations period applicable to any
Return, which period (after giving effect to such extension or waiver) has not
yet expired; (vii) there is no action, suit or proceeding now pending and no
claim, audit or investigation now pending or any action, suit, claim, audit or
investigation threatened against or with respect to the Company or any
Subsidiary in respect of any Tax; (viii) neither the Company nor any Subsidiary
owns any interest in real property in the State of New York or in any other
jurisdiction in which a Tax is imposed on the transfer of a controlling interest
in an entity that owns any interest in real property; (ix) none of the Company,
any Subsidiary or any other person on behalf of the Company or any Subsidiary
has entered into any agreement or consent pursuant to Section 341(f) of the
Code; (x) there are no Liens for Taxes upon the assets of the Company or any
Subsidiary except Liens for current Taxes not yet due; (xi) neither the Company
nor any Subsidiary will be required to include any adjustment in taxable income
for any Post-Closing Tax Period (as hereinafter defined) under Section 481(c) of
the Code (or any similar provision of the Tax laws of any jurisdiction) as a
result of a change in method of accounting for a Pre-Closing Tax Period or
pursuant to the provisions of any agreement entered into with any Taxing
Authority with regard to the Tax liability of the Company or any Subsidiary for
any Pre-Closing Tax Period; and (xii) neither the Company nor any Subsidiary has
been a member of an affiliated, consolidated, combined or unitary group or
participated in any other arrangement whereby any income,
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revenues, receipts, gain or loss of the Company or any Subsidiary was determined
or taken into account for Tax purposes with reference to or in conjunction with
any income, revenues, receipts, gain, loss, asset or liability of any other
person or entity. To the knowledge of the Company, except as set forth on
SCHEDULE 4.10(A), neither the Company nor any of its Subsidiaries is a party to
or bound by any agreement providing for the allocation or sharing of Taxes with
any entity which is not, either directly or indirectly, a Subsidiary of the
Company (a "Tax Sharing Agreement").
(b) SCHEDULE 4.10(b) contains a list of all jurisdictions
(whether foreign or domestic) to which any Tax imposed on overall net income is
properly payable by the Company or any Subsidiary. The Company has previously
delivered or made available to Buyer true, correct and complete copies of its
federal income tax returns for each of the fiscal years ended December 31, 1990
through December 31, 1995.
(c) For purposes of this Agreement, (i) "Tax" shall mean (a)
any net income, alternative or add-on minimum tax, gross income, gross receipts,
sales, use, ad valorem, value added, transfer, franchise, profits, license,
withholding on amounts paid to or by the Company or any Subsidiary, payroll,
employment, excise, severance, stamp, occupation, premium, property,
environmental or windfall profit tax, custom, duty or other tax, governmental
fee or other like assessment or charge of any kind whatsoever, together with any
interest, penalty, addition to tax or additional amount imposed by any
governmental authority
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(domestic or foreign) responsible for the imposition of any such tax (a "Taxing
Authority"), (b) any liability of the Company or any Subsidiary for the payment
of any amounts of any of the types described in clause (a) above as a result of
being a member of an affiliated, consolidated, combined or unitary group, or
being a party to any agreement or arrangement whereby liability of the Company
or any Subsidiary for payment of such amounts was determined or taken into
account with reference to the liability of any other person, and (c) liability
of the Company or any Subsidiary for the payment of any amounts as a result of
being party to any Tax Sharing Agreement or with respect to the payment of any
amounts of any of the foregoing types as a result of any express or implied
obligation to indemnify any other person; (ii) "Pre-Closing Tax Period" shall
mean any Tax period (or portion thereof) ending on or before the close of
business on the Closing Date; and (iii) "Post-Closing Tax Period" shall mean any
Tax period (or portion thereof) ending after the close of business on the
Closing Date.
4.11 PENSION AND BENEFIT PLANS; ERISA.
To the knowledge of the Company, SCHEDULE 4.11 attached
hereto contains a true and complete list of each "employee benefit plan," as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), maintained, contributed to or required to be contributed
to by the Company or any of its Subsidiaries for the benefit of current, former
and retired employees (the "Company ERISA Plans") and each other material plan,
contract, program or arrangement
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maintained, contributed to or required to be contributed to by the Company or
any of its Subsidiaries for the benefit of current, former and retired employees
and directors (the "Company Benefit Arrangements"). To the knowledge of the
Company, each Company ERISA Plan and each Company Benefit Arrangement complies
in all material respects with its terms and all applicable laws, including
ERISA, and no "reportable event," "prohibited transaction" or breach of
fiduciary duty (within the meaning of ERISA) or termination has occurred with
respect to any Company ERISA Plan under circumstances which present a risk of
any material liability to any governmental authority or other person. To the
knowledge of the Company, none of the Company ERISA Plans or Company Benefit
Arrangements is a "multiemployer plan" as defined in Section 4001(a)(3) of ERISA
or a "multiple employee plan" within the meaning of Section 413(c) of the Code
or Section 4063 of ERISA. To the knowledge of the Company, no event has occurred
which would cause the Company to incur (i) any liability to the Pension Benefit
Guaranty Corporation under Section 4069 of ERISA or (ii) any withdrawal
liability to a "multiemployer plan." Copies or descriptions of each Company
ERISA Plan and Company Benefit Arrangement (and, where applicable, the most
recent summary plan description, actuarial report, determination letter, annual
report (Form 5500) and trust agreement relating to such Company ERISA Plan and
Company Benefit Arrangement), and such other information as has been reasonably
requested by Buyer, have been made available to Buyer for review prior to the
date hereof. To the knowledge of the Company, each Company ERISA Plan and each
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Company Benefit Arrangement intended to qualify under section 401(a) of the
Code, is so qualified, and each trust maintained in connection with each such
plan is tax exempt under Code ss. 501(a). To the knowledge of the Company, the
Internal Revenue Service ("IRS") has issued favorable determination letters with
respect to the qualification of each qualified Company ERISA Plan and each
qualified Company Benefit Arrangement and related trust, and the IRS has not
taken any action to revoke any such letter. To the knowledge of the Company, if
and to extent applicable, no Company ERISA Plan and no Company Benefit
Arrangement has or has incurred an accumulated funding deficiency within the
meaning of ERISA section 302 or Code section 412, nor has any waiver of the
minimum funding standards of ERISA section 302 and Code section 412 been
requested of or granted by the IRS with respect to any Company ERISA Plan or
Company Benefit Arrangement, nor has any lien in favor of any such plan arisen
under Code section 412(n) or ERISA section 302(f). To the knowledge of the
Company, with respect to any insurance policy providing funding for benefits
under any Company ERISA Plan or Company Benefit Arrangement, there is no
liability of the Company in the nature of a retroactive rate adjustment, loss
sharing arrangement, or other actual or contingent liability, there will be no
such liability arising wholly or partially out of events occurring prior to the
execution of this Agreement, nor would there be any such liability if the
Company cancelled such policy as of the execution of this Agreement.
4.12 ENVIRONMENTAL MATTERS.
(a) For purposes of this Agreement:
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(i) "Environmental Law" means any applicable law
regulating or prohibiting Releases into any part of the
environment (indoor or outdoor), or pertaining to the
protection of natural resources or the environment including,
without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act ("CERCLA") (42 U.S.C. section
9601, et seq.), the Hazardous Materials Transportation Act (49
U.S.C. section 1801, et seq.), the Resource Conservation and
Recovery Act (42 U.S.C. section 6901, et seq.), the Clean
Water Act (33 U.S.C. section 1251, et seq.), the Clean Air Act
(33 U.S.C. section 7401, et seq.), the Toxic Substances
Control Act (15 U.S.C. section 7401, et seq.) and the Federal
Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. section
136, et seq.), and the regulations promulgated pursuant
thereto, and any such applicable state or local statutes, and
the regulations promulgated pursuant thereto, as such laws are
in effect on the date hereof;
(ii) "Hazardous Material" means any substance,
material or waste which is regulated by any public or
governmental body in the jurisdictions in which the Company or
any of its Subsidiaries conducts business, or the United
States, including, without limitation, any material or
substance which is defined as a "hazardous waste," "hazardous
material," "hazardous substance," "extremely hazardous waste,"
"restricted hazardous waste," "contaminant," "toxic waste" or
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"toxic substance" under any provision of any Environmental
Law;
(iii) "Release" means any release, spill, effluent,
emission, leaking, pumping, injection, deposit, disposal,
discharge, dispersal, leaching or migration into the indoor or
outdoor environment, including, without limitation, any
property owned, operated or leased by the Company or any of
its Subsidiaries; and
(iv) "Remedial Action" means all actions, including,
without limitation, any capital expenditures, required by a
governmental body or required under any Environmental Law, or
voluntarily undertaken to (a) clean up, remove, treat, or in
any other way ameliorate or address any Hazardous Materials or
other substance in the indoor or outdoor environment; (b)
prevent the Release or threat of Release, or minimize the
further Release of any Hazardous Material so it does not
endanger or threaten to endanger the public health or welfare
of the indoor or outdoor environment; (c) perform preremedial
studies and investigations or post-remedial monitoring and
care pertaining or relating to a Release; or (d) achieve or
maintain compliance with any Environmental Law.
(b) To the knowledge of the Company, the operations of the
Company and its Subsidiaries have complied and currently comply with all
Environmental Laws. Except as set forth in
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SCHEDULE 4.12 attached hereto, neither the Company nor any of its Subsidiaries
has received any notice with respect to any of its facilities of any alleged
violation of any Environmental Law or any possible liability or remediation
obligation arising under any Environmental Law.
(c) To the knowledge of the Company, the Company and its
Subsidiaries are not subject to any outstanding orders, judgments, agreements or
contracts with or issued by any governmental body or other person respecting (i)
Environmental Laws, (ii) Remedial Action or (iii) any Release or threatened
Release of a Hazardous Material except as described in SCHEDULE 4.12 attached
hereto.
4.13 NO BROKERS. Neither the Company nor any Affiliate of the
Company has retained or been approached by any broker, finder or agent in
connection with this Agreement or the transactions contemplated hereby.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE BUYER
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The Buyer hereby represents and warrants to the Seller and
the Company as follows:
5.1 CORPORATE STATUS. The Buyer is a limited partnership duly
formed and existing under the laws of the State of Ohio.
5.2 AUTHORITY AND CAPACITY FOR AGREEMENT. The Buyer has all
requisite power, authority and capacity to execute and deliver this Agreement
and to carry out and perform its
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obligations hereunder. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary partnership action on the part of the Buyer. This Agreement has
been duly executed and delivered by the Buyer and constitutes the valid and
legally binding obligation of the Buyer enforceable in accordance with its terms
except that the enforcement hereof may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (b) general principles of equity
(regardless of whether enforceability is considered in a proceeding at law or in
equity).
5.3 NONCONTRAVENTION. Neither the execution, delivery and
performance by the Buyer of this Agreement and the consummation (in accordance
with the terms hereof) of the transactions contemplated hereby, nor compliance
by the Buyer with any of the provisions hereof will violate, conflict with, or
result in (with or without the giving of notice or the lapse of time or both) a
default under or a breach or violation of, any provision of (a) the Buyer's
certificate of limited partnership or agreement of limited partnership, (b) any
mortgage, indenture, lease, contract, deed, agreement or other instrument to
which the Buyer is a party or by which it is bound or to which any of its
properties or assets is subject, (c) any law, rule or regulation of any
governmental body (whether domestic or foreign), or (d) any order, judgment or
decree of any court or other governmental body (whether domestic or foreign).
Except as otherwise provided
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in SCHEDULE 5.3 attached hereto, no consent, approval, authorization, order,
filing, registration, declaration or qualification of or with any court,
governmental body or third person is required to be obtained by or on behalf of
the Buyer in connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby.
5.4 NO BROKERS. Except for Xxxxxx X. Xxxxxx, neither the Buyer
nor any Affiliate of the Buyer has retained or been approached by any broker,
finder or agent in connection with this Agreement or the transactions
contemplated hereby. All of the fees and expenses of Xxxxxx X. Xxxxxx due and
payable on account of this Agreement and the transactions contemplated hereby
shall be borne by the Buyer.
5.5 INVESTMENT. The Buyer is purchasing the Purchase Shares
for its own account and not with a view to the distribution thereof in violation
of the Securities Act or the rules and regulations promulgated thereunder.
ARTICLE VI
CLOSING DELIVERIES
------------------
6.1 DELIVERIES BY THE SELLER. At the Closing, the
Seller shall deliver to the Buyer the following documents:
(a) One or more certificates representing the Purchase Shares,
duly endorsed (or with duly executed stock powers attached) for transfer to the
Buyer with all transfer taxes, if any, paid, and free of any restrictive legends
except legends, if any, reflecting the limitations on the transferability of the
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securities represented thereby which result from the fact that such securities
have not been registered under the Securities Act;
(b) A receipt for payment of the Purchase Price duly executed
by the Seller;
(c) A certified copy of the resolutions of a Director of the
Seller authorizing the execution, delivery and performance of this Agreement;
and
(d) An opinion of counsel to the Seller and the Company in a
form mutually acceptable to the Buyer and such counsel.
6.2 DELIVERIES BY THE BUYER. At the Closing, the Buyer shall
deliver to the Seller the Purchase Price in the manner contemplated by Section
1.2 hereof.
6.3 DELIVERIES BY THE COMPANY. At the Closing, the Company
shall deliver to the Buyer the following documents:
(a) Counterpart signature pages to (i) a Registration Rights
Agreement by and between the Buyer and the Company in a form to be agreed upon
between the Buyer and the Company on or prior to the Closing Date (the
"Registration Rights Agreement") and (ii) a Consulting Agreement by and between
Kirtland Capital Corporation, an Affiliate of the Buyer ("KCC"), and the Company
in a form to be agreed upon between the Buyer and the Company on or prior to the
Closing Date (the "Consulting Agreement"), each duly executed by the Company;
(b) A certified copy of the resolutions of the Board of
Directors of the Company authorizing the execution, delivery
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and performance of this Agreement, the Registration Rights Agreement and the
Consulting Agreement; and
(c) A certificate, in form and substance satisfactory to
Buyer, pursuant to Treas. Reg. Section 1.897-2(g)(1)(i)(A) providing that the
Purchase Shares do not constitute equity interests of a United States real
property holding corporation.
ARTICLE VII
PRE-CLOSING COVENANTS
---------------------
Between the date of this Agreement and the Closing Date, the
Buyer, the Seller and the Company shall, as applicable, perform the following:
7.1 GENERAL. Each of the Buyer, the Seller and the Company
shall use their respective reasonable best efforts to take all actions and to do
all things necessary, proper or advisable to consummate and make effective the
transactions contemplated by this Agreement (including satisfying the closing
conditions set forth in Article IX hereof).
7.2 BUSINESS IN ORDINARY COURSE. The Company shall carry on
its operations (and those of its Subsidiaries) substantially in the same manner
as heretofore conducted. The Company shall not make or institute any material
change in the methods of manufacture, management, accounting or operation of the
Company or its Subsidiaries.
7.3 CONTRACTS AND COMMITMENTS. The Company shall not (and
shall not permit any of its Subsidiaries to) enter into any contract or
commitment or engage in any transaction, not in the
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usual and ordinary course of business and consistent with the past operation of
the Company.
7.4 SALE OF CAPITAL ASSETS. Except for the sale or other
disposition of excess or obsolete equipment in the usual and ordinary course of
business consistent with the past operation of the Company and its Subsidiaries,
the Company and its Subsidiaries will not sell or otherwise dispose of any
capital asset relating to the Company and its Subsidiaries.
7.5 NO GENERAL INCREASES. The Company will not (and will
cause each of its Subsidiaries not to) grant any general or uniform increase in
the rates of pay of employees of the Company or any Subsidiary, nor grant any
general or uniform increase in the benefits under any bonus or pension plan or
other employee-related contract or commitment. The Company shall not increase
the compensation payable or to become payable to any officer or other salaried
employee with a base salary in excess of $50,000 per year or increase any bonus,
insurance, pension or other benefit plan, payment or arrangement made to, for or
with any such officer or salaried employee.
7.6 PRESERVATION OF ORGANIZATION. The Company shall (and
shall cause each of its Subsidiaries to) use its reasonable best efforts to
preserve the business organization of the Company and each of its Subsidiaries,
to keep available the present key officers and employees of the Company and its
Subsidiaries and to preserve the present relationships of the Company and its
Subsidiaries with its suppliers and customers and others having business
relations with the Company and its Subsidiaries.
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7.7 FULL ACCESS. The Company shall permit representatives of
the Buyer to have full access at all reasonable times to all of the facilities,
properties, personnel, books and records of the Company and each of its
Subsidiaries to permit the Buyer to complete its due diligence examination of
the Company and each of its Subsidiaries. Without limiting the generality of the
foregoing sentence, (a) the Buyer and its representatives may conduct a Phase I
environmental assessment of any of the facilities maintained by the Company or
any of its Subsidiaries, and (b) the Company shall provide the Buyer with a copy
of its monthly financial statements as promptly as possible following the
preparation of such statements, all of which shall be prepared in accordance
with GAAP applied on a consistent basis during the periods involved and shall
present fairly, in all material respects, in accordance with applicable
requirements of GAAP the consolidated financial position of the Company and its
consolidated subsidiaries as of their respective dates and the consolidated
results of operations and the consolidated cash flows of the Company and its
consolidated subsidiaries for the periods presented therein.
7.8 EXCLUSIVITY. Neither the Seller nor any Affiliate of the
Seller shall solicit, initiate, encourage the submission of, provide any
information in connection with or negotiate any proposal or offer from any
person or entity, or provide any information in connection with or negotiate any
unsolicited offer or proposal, relating to any acquisition or purchase of the
Purchase Shares or similar transaction or business combination
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involving the Purchase Shares or the Company. The Seller shall notify the Buyer
promptly if any person makes any proposal, offer, inquiry or contact with
respect to any of the foregoing.
7.9 TAX MATTERS. The Company shall notify the IRS pursuant to
Treas. Reg. Section 1.897-2(h)(2) informing the IRS that the Company has
provided to the Seller a certificate indicating that the Purchase Shares do not
constitute equity interests of a United States real property holding
corporation.
ARTICLE VIII
POST-CLOSING COVENANTS
----------------------
8.1 CONFIDENTIALITY. From and after the Closing Date, the
Seller shall retain in confidence, and require its directors, officers,
employees, consultants, professional representatives and agents to retain in
confidence, all information, financial or otherwise, which it has received
relating to the Company's business, assets, financial condition, operations or
prospects. The Seller shall deliver promptly to the Company or destroy, at the
request and option of the Company, all tangible embodiments (and all copies) of
confidential information that is in its possession. Notwithstanding the
foregoing provisions of this Section 8.1, the Seller shall not be precluded from
disclosing any information specified in this Section 8.1 to the extent required
by law.
8.2 BOARD OF DIRECTORS. (a) Promptly following the Closing
Date, the Company shall (i) increase the size of the Board of Directors of the
Company to up to seven persons and
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(ii) subject to compliance with Section 14(f) of the Exchange Act, cause up to
five persons designated by the Buyer (the "KCP Directors") to be nominated to
the Company's Board of Directors. Promptly following the Closing Date and
subject to compliance with Section 14(f) of the Exchange Act and any other
applicable law, the Company shall take, at the Company's expense, all lawful
action necessary to effect the nomination and election of the KCP Directors,
including, without limitation, mailing to the Company's stockholders the
information required by Section 14(f) of the Exchange Act and Rule 14f-1
promulgated thereunder (the "Information Statement").
(b) None of the information supplied or to be supplied in
writing by the Company expressly for inclusion or incorporation by reference in
the Information Statement will, at the time the Information Statement is first
published, sent or given to the holders of the Shares, and at any time it is
amended or supplemented, contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they are made,
not misleading.
8.3 ADDITIONAL ASSISTANCE. From time to time after the Closing
Date, the Seller and the Company, at their own expense, shall execute and
deliver, or cause to be executed and delivered, such other instruments,
conveyances and transfers and take, or cause to be taken, such other actions as
the Buyer may reasonably request in order to fully carry out and consummate the
transactions included or provided for in this Agreement.
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ARTICLE IX
CLOSING CONDITIONS
------------------
9.1 CONDITIONS TO OBLIGATIONS OF THE BUYER. The obligation of
the Buyer to consummate the transactions contemplated hereby shall be subject to
satisfaction of each of the following conditions:
(a) the representations and warranties set forth in
Articles III and IV hereof shall be true and correct in all material respects at
and as of the Closing Date;
(b) the Seller and the Company shall have performed and
complied with all of their respective covenants and agreements contained herein
in all material respects;
(c) there shall not be any action, suit or proceeding
pending or threatened before any court or quasijudicial or administrative agency
of any federal, state, local or foreign jurisdiction or before any arbitrator
wherein an unfavorable injunction, judgment, order, decree, ruling or charge
would (i) prevent consummation of any of the transactions contemplated by this
Agreement, (ii) cause any of the transactions contemplated by this Agreement to
be rescinded following consummation, or (iii) affect materially and adversely,
including through the imposition of any divestiture requirement, the right of
the Buyer to own the Purchase Shares or to operate the business of the Company
as presently operated and as presently proposed to be operated (and no such
injunction, judgment, order, decree, ruling or charge shall be in effect);
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(d) the Seller and the Company shall have delivered to
the Buyer a certificate to the effect that each of the conditions specified in
Section 9.1(a), (b) and (c) hereof have been satisfied in all respects;
(e) all applicable waiting periods (and any extensions
thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been
terminated without the objection of any of the relevant federal authorities;
(f) the Buyer shall have completed and shall be
satisfied, in its sole and absolute discretion, with the results of its due
diligence examination of the Company and each of its Subsidiaries;
(g) there shall not have occurred a material adverse
change in the business, operations, properties or assets, liabilities, financial
condition, results of operations or prospects of the Company and its
Subsidiaries taken as a whole;
(h) the Company shall have received notification from
the New Jersey Department of Environmental Protection and Energy satisfactory to
the Buyer in its sole discretion that the sale of the Purchase Shares may
proceed in compliance with the provisions of the New Jersey Industrial Site
Recovery Act without the imposition of any liability against the Company or the
Buyer on account of the transactions contemplated hereby;
(i) the Company and the Seller shall have obtained the
consents identified on SCHEDULES 3.3 and 4.4 attached hereto;
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(j) the Seller shall have executed and delivered to the
Buyer the documents identified in Section 6.1; and
(k) the Company shall have executed and delivered to
the Buyer the documents identified in Section 6.3. The Buyer may waive any
condition specified in this Section 9.1 if it executes a writing so stating at
or prior to the Closing Date.
9.2 CONDITIONS TO OBLIGATION OF THE SELLER AND THE COMPANY.
The obligation of the Seller and the Company to consummate the transactions
contemplated hereby shall be subject to satisfaction of the following
conditions:
(a) the representations and warranties set forth in
Article V shall be true and correct in all material respects at and as of the
Closing Date;
(b) the Buyer shall have performed and complied with
all of its covenants hereunder in all material respects;
(c) there shall not be any action, suit or proceeding
pending or threatened before any court or quasijudicial or administrative agency
of any federal, state, local or foreign jurisdiction or before any arbitrator
wherein an unfavorable injunction, judgment, order, decree, ruling or charge
would (i) prevent the consummation of any of the transactions contemplated by
this Agreement or (ii) cause any of the transactions contemplated by this
Agreement to be rescinded following consummation (and no such injunction,
judgment, order, decree, ruling or charge shall be in effect);
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(d) the Buyer shall have delivered to the Seller a
certificate to the effect that each of the conditions specified in Section 9.2
(a), (b) and (c) hereof have been satisfied in all respects;
(e) all applicable waiting periods (and any extensions
thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been
terminated without the objection of any of the relevant federal authorities; and
(f) the Buyer shall have delivered to the Seller the
Purchase Price.
The Seller or the Company may waive any condition specified in
this Section 9.2 if either executes a writing so stating at or prior to the
Closing.
ARTICLE X
TERMINATION
-----------
10.1 TERMINATION OF AGREEMENT. This Agreement may be
terminated as follows:
(a) by the mutual written consent of the Buyer, the
Seller and the Company at any time prior to the Closing Date;
(b) the Buyer may terminate this Agreement by giving
written notice to the Seller and the Company at any time prior to the Closing if
the Closing has not occurred on or before December 15, 1996, by reason of the
failure of any closing condition contained in Section 9.1 hereof (unless the
failure results primarily from the Buyer itself breaching any of its
representations, warranties, covenants or agreements contained in
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this Agreement); provided, however, that the Buyer may not terminate this
Agreement under this Section 10.1(b) on account of the failure of the conditions
specified in Sections 9.1(e) or (h) until after December 31, 1996;
(c) the Seller may terminate this Agreement by giving
written notice to the Buyer any time prior to the Closing if the Closing has not
occurred on or before December 15, 1996, by reason of the failure of any closing
condition contained in Section 9.2 hereof (unless the failure results primarily
from the Seller or the Company breaching any of their respective
representations, warranties, covenants or agreements contained in this
Agreement); provided, however, that the Seller may not terminate this Agreement
under this Section 10.1(c) on account of the failure of the condition specified
in Section 9.2(e) until after December 31, 1996;
(d) the Buyer may terminate this Agreement if either
the Seller or the Company commits a material breach of any of their respective
representations, warranties, covenants or agreements contained herein; or
(e) the Seller may terminate this Agreement if the
Buyer commits a material breach of any of its representations, warranties,
covenants or agreements contained herein.
10.2 EFFECT OF TERMINATION. If the Buyer, the Seller or the
Company terminate this Agreement pursuant to Section 10.1, all obligations
hereunder shall thereupon terminate without liability of any party hereto to any
other party hereto (except
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for any liability of any party then in breach); provided that the provisions of
(a) Sections 11.2 and 11.3 hereof and (b) that certain Confidentiality
Agreement, dated November 29, 1995, by and between the Company and KCC shall
survive any such termination and shall remain in full force and effect
thereafter.
ARTICLE XI
GENERAL
11.1 NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES. None of
the representations and warranties contained in this Agreement or in any
instrument delivered pursuant to this Agreement shall survive the Closing Date,
except for the representations and warranties contained in Sections 3.4, 3.5,
4.13 and 5.4 hereof, each of which shall survive without limitation as to
duration. The Seller shall indemnify the Buyer from and against any and all
losses, costs, fees and expenses incurred by the Buyer on account of any breach
or violation of the representations and warranties contained in Sections 3.4,
3.5 or 4.13 hereof. The Buyer shall indemnify the Seller and the Company from
and against any and all losses, costs, fees and expenses incurred by the Seller
or the Company on account of any breach or violation of the representation and
warranty contained in Section 5.4 hereof. All of the covenants and agreements
contained in this Agreement shall survive the Closing Date without limitation as
to duration.
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11.2 EXPENSES. The Seller, the Company and the Buyer shall
each bear their separate expenses incurred in connection with this Agreement and
the transactions contemplated hereby.
11.3 PRESS RELEASES AND PUBLIC ANNOUNCEMENTS. None of the
Buyer, the Seller or the Company shall issue any press release or make any
public announcement relating to the subject matter of this Agreement without the
prior written approval of the Buyer, the Seller and the Company.
11.4 WAIVER. Any failure of any party hereto to comply with
any of its obligations, agreements, conditions or covenants herein contained may
be waived only with the prior written consent of the party which is entitled to
the benefits thereof.
11.5 NOTICES. All notices shall be in writing and shall be
deemed to have been given three days after the registration if sent by
registered mail, postage prepaid, return receipt requested, or upon delivery by
a nationally recognized overnight courier service or upon confirmation of
receipt if sent by electronic facsimile transmission to the following addresses:
If to the Buyer:
Kirtland Capital Partners II L.P.
0000 XXX Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxx, Day, Xxxxxx & Xxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Xx.
Telecopy No.: (000) 000-0000
If to the Seller:
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Xxxxx Anstalt
Am Xxxxxxxx Xxx 0
0000 Xxxxx, Xxxxxxxxxxxxx
Liechtenstein
Attention: Xxxxxx Xxxxxxx
Telecopy No.: 011 41 075 23228 37
with a copy to:
Xxxx Marks & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Telecopy No.: (000) 000-0000
If to the Company:
PVC Container Corporation
000 Xxxxxxxxxx Xxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telecopy No.: (000) 000-0000
with a copy to:
Xxxx Marks & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Telecopy No.: (000) 000-0000
11.6 CAPTIONS AND PARAGRAPH HEADINGS. Captions and paragraph
headings used herein are for convenience only and are not a part of this
Agreement and shall not be used in construing it.
11.7 ENTIRE AGREEMENT AND AMENDMENT. This Agreement embodies
the entire understanding of the Buyer, the Seller and the Company, and there are
no other agreements or understandings, written or oral, in effect among the
Buyer, the Seller and the Company, relating to the subject matter hereof, unless
expressly referred to by reference herein. This Agreement may be amended or
modified only by an instrument of equal formality signed by
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the Buyer, the Seller and the Company, or their duly authorized agents.
11.8 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Ohio without
regard to the conflicts of law principles thereof.
11.9 SUBMISSION TO JURISDICTION. Any legal action or
proceedings arising out of this Agreement may be brought only in the courts of
the State of Ohio, or in the courts of the United States of America sitting in
the State of Ohio and each of the Buyer, the Seller and the Company, hereto
irrevocably submits to the exclusive jurisdiction of each such court, together
with courts having appellate jurisdiction therefrom, and waives all requirements
of personal jurisdiction or venue with respect thereto, and any writ, judgment
or other notice of legal process shall be sufficiently served on it if delivered
pursuant to Section 11.5 hereof.
11.10 COUNTERPARTS. This Agreement may be executed
simultaneously 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.
11.11 BENEFIT AND ASSIGNMENT. This Agreement shall be binding
upon and inure to the benefit of the Buyer, the Seller and the Company and their
respective successors and assigns. The rights and obligations of the Buyer, the
Seller and the Company hereunder may not be assigned, provided that the Buyer
may assign its right (but not its obligation to pay the Purchase Price) to
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acquire some or all of the Purchase Shares to one or more Affiliates of the
Buyer.
11.12 SEVERABILITY. Any term or provision of this Agreement
that is invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction.
11.13 INCORPORATION OF EXHIBITS AND SCHEDULES. The Exhibits
and Schedules identified in this Agreement are incorporated herein by reference
and made a part hereof.
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IN WITNESS WHEREOF, the Buyer, the Seller and the Company have
duly executed this Agreement on the date first above written.
KIRTLAND CAPITAL PARTNERS II L.P.
By: KIRTLAND CAPITAL CORPORATION,
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: President
XXXXX ANSTALT
By: /s/ Xxxxxx Xxxxxxx
---------------------------
Name: Xxxxxx Xxxxxxx
Title: Director
PVC CONTAINER CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
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Schedule 3.3 of Stock Purchase Agreement by
and among Kirtland Capital Partners II, L.P.,
PVC Container Corporation and Xxxxx Anstalt
Fleet Bank, X.X.
Xxxx-Xxxxx-Xxxxxx Act Clearance
New Jersey Department of Environmental Protection
and Energy Clearance
42
Schedule 4.1 of Stock Purchase Agreement by and
among Kirtland Capital Partners II, L.P.,
PVC Container Corporation and Xxxxx Anstalt
Delaware
New Jersey
Pennsylvania
Illinois
South Carolina
43
Schedule 4.2 of Stock Purchase Agreement by and
among Kirtland Capital Partners II, L.P.,
PVC Container Corporation and Xxxxx Anstalt
Authorized Shares Owned
Name Capital Stock by PVC Jurisdiction
---- ------------- ------------- ------------
Airopak 1,500 Common 100** Delaware
Corporation Stock, no par
Novatec 1,000 Common 1,000 Delaware
Plastics Stock, no par
Chemicals
Co, Inc.
Edge Craft 1,000 Common 100* Delaware
USA, Inc. Stock, $1 par
PVC Container 1,000 Ordinary 1000 X.X.Xxxxxx
International Shares, $1 par Islands
Sales Corp.
Airopak Corporation is authorized to do business in the States of
Pennsylvania and New Jersey.
Novatec Plastics & Chemicals Co., Inc. is authorized to do business in the
State of New Jersey.
Edge Craft USA, Inc. is authorized to do business in the State of New
Jersey.
* 100 shares owned by Edge Craft Ltd.
** only shares issued and outstanding
44
Schedule 4.4 of Stock Purchase Agreement by and
among Kirtland Capital Partners II, L.P.,
PVC Container Corporation and Xxxxx Anstalt
Fleet Bank, X.X.
Xxxx-Xxxxx-Xxxxxx Act Clearance
New Jersey Department of Environmental Protection
and Energy Clearance
45
Schedule 4.10(a) of Stock Purchase Agreement by and
among Kirtland Capital Partners II, L.P.,
PVC Container Corporation and Xxxxx Anstalt
None
46
Schedule 4.10(b) of Stock Purchase Agreement by and
among Kirtland Capital Partners II, L.P.,
PVC Container Corporation and Xxxxx Anstalt
Delaware
New Jersey
Pennsylvania
Illinois
South Carolina
47
Schedule 4.11 of Stock Purchase Agreement by and
among Kirtland Capital Partners II, L.P.,
PVC Container Corporation and Xxxxx Anstalt
PVC Pension Plan for Union Employees
PVC Profit Sharing Savings Plan 401-K
PVC Employee Stock Option Trust Plan
PVC Executive Deferred Compensation Plan
PVC 1996 Incentive Stock Option Plan
48
Schedule 4.12 of Stock Purchase Agreement by and
among Kirtland Capital Partners II, L.P.,
PVC Container Corporation and Xxxxx Anstalt
None
