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EXHIBIT 99.1
Contribution Agreement dated as of January 5, 1995 by and between Printpack,
Inc. and Orflex Ltd.
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This Contribution Agreement (the "Agreement") is made as of the 5th day of
January, 1995 by and between Printpack, Inc., a Georgia corporation
("Printpack"), and ORFLEX Ltd, an Ohio limited liability company, ("Orflex").
WHEREAS, Printpack desires to contribute to the capital of Orflex certain
assets, business and operations of Printpack relating to Printpack's flexible
packaging converting plant located at 000 Xxxx Xxxxxxxxx Xxxxxxxxx in
Cincinnati, Ohio (the "Cincinnati Plant") as a capital contribution in
connection with Printpack's forty-nine percent (49%) membership interest in
Orflex and Orflex desires to acquire the Cincinnati Plant on such basis, all as
provided in this Agreement.
NOW, THEREFORE, in consideration of the mutual representations,
warranties, terms, conditions and covenants contained herein, the parties agree
as follows:
ARTICLE I
CAPITAL CONTRIBUTION
1.1 CONTRIBUTION OF ASSETS.
(a) On the terms and subject to the conditions of this Agreement, except
for the Excluded Assets (defined hereinafter), Printpack hereby contributes to
Orflex and Orflex hereby accepts all of Printpack's tangible and intangible
assets, properties and rights used as of the date of this Agreement in the
ordinary course of operations of the Cincinnati Plant (the "Assets"), including
without limitation the following:
(i) all of Printpack's inventories, supplies and parts relating to
the Cincinnati Plant, either on hand or in transit (the "Inventories");
(ii) all of Printpack's right, title and interest in all machinery,
equipment and furniture located at the Cincinnati Plant, including
without limitation the machinery, equipment and furniture listed on
Exhibit 1.1(a)(ii) attached hereto except for that included in Excluded
Assets;
(iii) all of Printpack's fee simple interest in real property
located at 000 Xxxx Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxx Xxxxxx,
Xxxx 00000, as more fully described on Exhibit 1.1(a)(iii) attached
hereto, including all buildings,
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structures, fixtures and improvements located thereon or related thereto
(the "Real Property");
(iv) all rights of Printpack with respect to its contracts with the
customers identified on Exhibit 1.1(a)(iv) attached hereto including all
rights relating to unfilled or partially-filled purchase orders and
commitments of such customers except for those contracts included in
Excluded Assets;
(v) all rights of Printpack with respect to purchase orders for raw
materials, supplies, and inventories for the Cincinnati Plant to the
extent necessary or desirable to satisfy the unfilled or partially-filled
purchase orders and commitments of the customers identified on Exhibit
1.1(a)(iv) attached hereto;
(vi) all rights of Printpack with respect to the leases, contracts,
and commitments listed on Exhibit 1.1(a)(vi) attached hereto;
(vii) all books, records, files, data and other information of
Printpack relating solely to the assets, business and operations of the
Cincinnati Plant (except to the extent such information relates to the
Excluded Assets); and
(viii) all rights in and to all licenses, permits, franchises,
approvals, authorizations, consents, and registrations issued by any
governmental agency (collectively, "Authorities"), issued or granted to
or held by Printpack relating solely to the Cincinnati Plant, including
but not limited to all Authorities listed on Exhibit 1.1(a)(viii)
attached hereto but only to the extent that such Authorities can be
transferred by Printpack.
(b) Printpack is retaining and not contributing, transferring, conveying
or assigning to Orflex any of the following assets (the "Excluded Assets"):
(i) any cash of Printpack relating to the Cincinnati Plant;
(ii) any accounts receivable of Printpack relating to the Cincinnati
Plant and arising from goods shipped prior to the Closing Date (defined
hereinafter);
(iii) any of the machinery and equipment listed on Exhibit
1.1(b)(iii) attached hereto;
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(iv) any rights of Printpack relating to its contracts with
customers of the Cincinnati Plant other than the customers identified on
Exhibit 1.1(a)(iv) attached hereto;
(v) any rights of Printpack relating to the contracts listed on
Exhibit 1.1(b)(v) attached hereto (the "Excluded Contracts");
(vi) any rights in the name "Printpack" or any variation thereof or
any other trademark or name used by Printpack;
(vii) any assets, properties or rights of Printpack relating to
Printpack's businesses and operations other than the Cincinnati Plant; or
(viii) any raw materials related to the Cincinnati Plant; or
(ix) any work-in-process or finished goods inventories relating to
the Cincinnati Plant.
1.2 ASSUMPTION OF CERTAIN LIABILITIES.
(a) In connection with the contribution of the Assets to Orflex, Orflex
hereby assumes only the following liabilities and obligations of Printpack (the
"Assumed Liabilities"):
(i) obligations of Printpack due after the Closing Date and incurred
in the ordinary course for the sale and delivery of products to the
customers identified on Exhibit 1.1(a)(iv) attached hereto (but excluding
any obligation or liability for non-performance, default or breach prior
to the Closing); and
(ii) obligations of Printpack under the leases, contracts and
commitments listed on Exhibit 1.1(a)(vi) attached hereto.
(b) Except for the Assumed Liabilities, Orflex is not assuming any
liability or obligation of Printpack whatsoever, including without limitation
any liabilities or obligations with respect to the following (the "Nonassumed
Liabilities"):
(i) any customers of the Cincinnati Plant other than the customers
identified on Exhibit 1.1(a)(iv) attached hereto;
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(ii) any federal, state or local taxes, imposts, levies or other charges;
(iii) employee benefits (including, without limitation, COBRA rights),
wage or benefit increases, pension, welfare, benefit or retirement plans or
arrangements, severance pay, accrued vacation, sick pay or other paid timeoff;
(iv) any claim, litigation, obligation, liability, judgment or expense
regarding any product or good sold or shipped by Printpack prior to the Closing
Date, whether based on contract, tort, or breach of warranty, express or
implied; or
(v) damage or injury to person or property, or otherwise.
1.3 CAPITAL ACCOUNT. In recognition of the contribution of the Assets to
Orflex by Printpack, and the covenant not to compete set forth in Section 4.2
hereof Printpack shall have a credit to its capital account equal to $5,300,000
in Orflex which the members of Orflex have agreed is the fair value of
Printpack's contribution.
1.4 THE CLOSING. The closing of the contribution of the Assets and
Printpack's acquisition of its forty-nine percent (49%) membership interest in
Orflex (the "Closing") is taking place simultaneously with the execution of
this Agreement on January 5, 1995 and shall be deemed effective as of the close
of business this day (the "Closing Date").
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF PRINTPACK
Except as disclosed by Printpack to Orflex in writing in the Disclosure
Schedule attached hereto (the "Disclosure Schedule") (which disclosure with
respect to any warranty or repreesnation shall be considered disclosure with
respect to all warranties and representations), Printpack hereby represents and
warrants to Orflex as follows:
2.1 ORGANIZATION. Printpack is a corporation duly organized, validly
existing and in good standing under the laws of the State of Georgia with all
requisite corporate power and authority to own, lease and operate its
properties and to carry on its business as it is now being conducted and is
duly licensed and qualified to do business in and is in good standing in Ohio
and all other jurisdictions in which the conduct of its business or the
ownership or leasing of its properties requires it to be licensed or qualified
to do business
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and where the failure to be so qualified would materially adversely affect the
Cincinnati Plant or the Assets.
2.2 AUTHORITY. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by Printpack's Board of Directors. No other corporate proceedings
on the part of Printpack or its shareholders are necessary to authorize this
Agreement or the consummation of the transactions contemplated hereby. This
Agreement and each other agreement executed by Printpack and contemplated
hereby are valid and binding obligations of Printpack, enforceable in
accordance with their terms, except as may be affected by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or affecting
creditors' rights generally or by equitable principles.
2.3 NO CONFLICT. Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby will (i) violate or
conflict with, or require any consent under, or result in a breach of any
provision of, or constitute a default (or an event which, with notice or lapse
of time or both, would constitute a default) under, or result in the
termination of, or accelerate the performance required by, or result in the
creation of any lien, security interest, charge or encumbrance upon any of the
Assets under any of the terms, conditions or provisions of the Articles of
Incorporation or Bylaws of Printpack, or of any note, bond, mortgage,
indenture, deed of trust, license, agreement or other instrument or obligation
to which Printpack is a party, or by which Printpack, the Assets or the
Cincinnati Plant may be bound or affected, or (ii) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to Printpack, the
Assets or the Cincinnati Plant, except in either event for such breaches or
violations that would not have a material adverse effect on Printpack, the
Assets or the Cincinnati Plant. No consent or approval by, notice to or
registration with any governmental authority is required on the part of
Printpack prior to the Closing in connection with the execution and delivery by
Printpack of this Agreement or the consummation by Printpack of any of the
transactions contemplated hereby.
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2.4 FINANCIAL STATEMENTS.
(a) Printpack has previously delivered to Orflex (i) the unaudited balance
sheets of the Cincinnati Plant at June 25, 1994 and June 26, 1993 and the
related unaudited statements of income for each of the two fiscal years then
ended, and (ii) the unaudited balance sheet of the Cincinnati Plant at November
18, 1994 and the related unaudited statement of income for the five month
period then ended (the financial statements referred to in clauses (i) and (ii)
are collectively referred to as the "Financial Statements"). Except as set
forth in the Disclosure Schedule, the Financial Statements fairly present in
all material respects, respectively, the financial condition and results of
operations of the Cincinnati Plant at such dates and for such periods then
ending and have been prepared in accordance with and accurately reflect the
books and records of the Cincinnati Plant.
(b) Except as and to the extent reflected or disclosed in the balance
sheet of the Cincinnati Plant at November 18, 1994, except as set forth on the
Disclosure Schedule, Printpack did not have any material liability or
obligation relating to the Cincinnati Plant of any nature (whether accrued,
absolute, contingent or otherwise and whether due or to become due) as of such
date.
2.5 ASSETS NECESSARY TO THE BUSINESS. Except for the Excluded Assets, the
Assets being sold hereunder are all of the assets and rights that are being
used in or are reasonably necessary to carry on the business and operations of
the Cincinnati Plant as presently conducted.
2.6 TITLE TO PROPERTIES AND CONDITION.
(a) Printpack has good and marketable title to the Assets free and clear
of all mortgages, liens, pledges, charges, claims or encumbrances.
(b) The buildings, improvements, furniture, fixtures, leaseholds and
equipment of Printpack as a whole are in structural and operating condition
sufficient for Printpack's present operations and use, reasonable wear and tear
excepted and are in conformity in all material respects with all applicable
laws, ordinances and regulations, including without limitation all building and
zoning laws, ordinances and regulations,
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except with respect to environmental matters for which representations are set
forth in Section 2.8.
2.7 INVENTORIES. The Inventories of Printpack are accounted for on a
first-in/first-out basis, lower of cost or market. The Inventories of
Printpack are merchantable, readily usable and salable in the ordinary and
usual course of business and are written down to net realizable market value.
Any unsalable, excess or slow-moving inventory has been written down to net
realizable value.
2.8 ENVIRONMENTAL MATTERS.
(a) Except as set forth on the Disclosure Schedule, (i) Printpack has not
received any claim, notice, order, directive, or information request relating
to the Cincinnati Plant from the United States Environmental Protection Agency
(the "EPA"), or any state environmental protection authority or agency ("State
EPA") or from any other agency or branch of local, state or federal government
("Environmental Agency" and "Environmental Agencies") alleging any violation of
any federal or state environmental law, ordinance, regulation or order
applicable to the facilities or operations of the Cincinnati Plant
("Environmental Laws"), or any claim or notice from any private corporation or
person alleging any violation of any Environmental Laws, within the five years
immediately preceding the date hereof; (ii) to the knowledge of Printpack, no
investigation, administrative order, consent order, agreement, litigation or
settlement with respect to any release of hazardous substances to the
environment (as defined by the Comprehensive Environment Response, Compensation
and Liability Act, 42 U.S.C. Section Section 9601 et seq.) is proposed,
threatened, or anticipated, with respect to the facilities or operations of the
Cincinnati Plant; (iii) all environmental facility, operating and other
permits, registrations and authorizations ("Environmental Permits") required
for the Cincinnati Plant by any Environmental Agency have been obtained and are
in effect; (iv) to the knowledge of Printpack, Printpack has complied with and
is not in material default under any Environmental Law with respect to the
Cincinnati Plant and (v) to the knowledge of Printpack, none of the facilities
or operations of the Cincinnati Plant have been contaminated by hazardous waste
(as defined by the Resource Conservation and
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Recovery Act 42 U.S.S. Section Section 6901 et seq.), nor has the Cincinnati
Plant been used for solid or hazardous waste storage or disposal, and none of
the facilities or operations of the Cincinnati Plant have contaminated
neighboring real estate or waters with hazardous substances. To the knowledge
of Printpack, there are no underground storage tanks or asbestos materials in
or upon any of the properties or facilities of the Cincinnati Plant, whether
owned or leased.
2.9 LICENSES, PERMITS, ETC. All Authorities are valid and in full force
and effect. No proceeding or action with respect to the suspension,
cancellation or any other aspect of any Authority is pending or, to the
knowledge of Printpack, threatened; and, to the knowledge of Printpack, no
basis exists therefor. None of the operations, processes or products of
Printpack infringe or violate the rights of any third party. Printpack does
not know of any operations or processes conducted or products sold by any third
party that infringe or violate the rights of Printpack with respect to the
operations, processes or products of the Cincinnati Plant. No license for any
technology, patent, process or other similar intangible right is required for
the operation of the Cincinnati Plant as it is currently being operated by
Printpack.
2.10 EMPLOYEE BENEFIT PLANS.
(a) For purposes of this Section 2.10 the term "ERISA" means the Employee
Retirement Income Security Act of 1974, as amended, the term "Code" means the
Internal Revenue Code of 1986, as amended, the terms "employee welfare benefit
plan" and "employee pension benefit plan" have the meanings set forth in ERISA
Sections 3(1) and 3(2), respectively, and the term "employee fringe benefit
plan" means any plan, program or arrangement under which one or more employees
or former employees of Printpack receive benefits (other than regular salary or
wages) and which is not considered an employee pension benefit plan or employee
welfare benefit plan under ERISA.
(b) Notwithstanding any other provision or implication herein to the
contrary, Orflex does not assume (i) any employee pension benefit plan,
employee welfare benefit plan, or employee fringe benefit plan maintained by
Printpack or in which any employee of the Cincinnati Plant has ever
participated, (ii) any obligation or liability
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(whether current or contingent) of Printpack under any such plan, or (iii)
any obligation or liability (whether current or contingent) of Printpack or
any affiliate employer of Printpack with respect to any employee pension
benefit plan, employee welfare benefit plan, or employee fringe benefit plan
maintained by such an affiliated employer or in which any employee of such an
affiliated employer has ever participated; and there is no material obligation
or liability under any such employee pension benefit plan, employee welfare
benefit plan, or employee fringe benefit plan for which Orflex could become
responsible as a result of this Agreement or the transactions contemplated
hereby.
2.11 TAX MATTERS. Printpack has timely filed all federal, state and local
tax returns required to be filed by Printpack with respect to the Cincinnati
Plant and all such returns are complete and correct in all material respects.
Printpack has made timely payment of all such taxes, levies, imposts or other
charges when due and payable and has paid all interest, penalties, deficiencies
and assessments, if any, heretofore levied or assessed against it. To the
knowledge of Printpack, Printpack has duly withheld, collected and timely paid
over or held for payment to the proper governmental authorities all taxes and
other amounts required to be withheld or collected by it with respect to the
Cincinnati Plant.
2.12 LITIGATION. Except as set forth on the Disclosure Schedule, there is
no action, dispute, claim, litigation, arbitration, investigation or other
proceeding, at law or in equity or by or before any court or governmental or
administrative body (U.S. or foreign), pending or, to the knowledge of
Printpack, threatened against Printpack with respect to its business,
properties, operations or personnel of the Cincinnati Plant or the transactions
contemplated by this Agreement. The Cincinnati Plant is not subject to (i) any
judicial, governmental or agency judgment, decree or order in which Printpack
is or was a named party, or (ii) any other such judgment, decree or order that
materially affects the Cincinnati Plant or the Assets.
2.13 CONTRACTS, AGREEMENTS, ETC. Together, Exhibit 1.1(a)(vi) and Exhibit
1.1.(b)(v) list all leases, contracts and commitments (written or oral) of
Printpack relating to the Cincinnati Plant, under which there are remaining
obligations or duties, contingent
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or otherwise (except those leases, contracts and commitments that are
terminable pursuant to the terms thereof and without penalty, on 30 days or
less notice and involve payments or obligations of Printpack of $5,000 or less
in the aggregate). All such leases, contracts and commitments that are listed
on Exhibit 1.1(a)(vi) are valid and in full force and effect with respect to
Printpack and, to the best of Printpack's knowledge, with respect to each other
party thereto, and no breach or default (or event or condition, which after
notice or lapse of time, or both would constitute a breach or default) by
Printpack or, to the knowledge of Printpack, by any other party thereto, exists
with respect thereto.
2.14 COMPLIANCE WITH LAWS. Printpack has complied with and is currently
complying with all laws, statutes, orders, rules and judgments and, to the best
of Printpack's knowledge, all regulations, policies, and guidelines of any
federal, state, local or applicable foreign court or governmental or
administrative body or agency relating to the Cincinnati Plant or the Assets,
except for such non-compliance that would not have a material adverse effect on
Assets or the Cincinnati Plant, and except with respect to environmental
matters for which representations are made in Section 2.8.
2.15 INSURANCE. The Disclosure Scheduled sets forth a correct and
complete list of all policies of insurance in effect with respect to the
Cincinnati Plant and which have been in effect during the three-year period
prior to the Closing Date. The Disclosure Schedule also sets forth a list of
all claims for any insured loss in excess of $5,000 per occurrence filed by
Printpack with respect to the Cincinnati Plant during the three-year period
prior to the Closing Date, including but not limited to workers' compensation,
automobile and general product liability claims. Printpack has not been denied
any insurance or indemnity bond and no insurance carrier has cancelled or
reduced any insurance coverage of Printpack with respect to the Cincinnati
Plant. Printpack has not received any notice from any insurer or agent of any
intent to cancel or reduce any insurance coverage or that any substantial
improvement or other expenditure with respect to the Cincinnati Plant is
necessary in order to continue such insurance.
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2.16 FEES OR COMMISSIONS. Printpack has not employed any broker, agent or
finder or incurred any liability for any brokerage fees, agent's commissions or
finder's fees or other similar obligations in connection with the transactions
contemplated hereby.
2.17 CERTAIN CUSTOMERS. During the last twelve months, the aggregate
amount of all invoices issued to the customers identified on Exhibit 1.1(a)(iv)
attached hereto was not less than $1,500,000.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF ORFLEX
3.1 ORGANIZATION. Orflex is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Ohio.
Orflex is duly licensed and qualified to do business and is in good standing in
Ohio and all other jurisdictions in which Orflex's operation of the Cincinnati
Plant as of the day immediately following the Closing Date will require it to
be licensed or registered and where the failure to be so licensed or qualified
would materially adversely affect the Cincinnati Plant or the Assets.
3.2 AUTHORITY. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by the Members of Orflex. No other company proceedings on the part
of Orflex are necessary to authorize this Agreement or the consummation of the
transactions contemplated hereby. This Agreement and each other agreement
executed by Orflex and contemplated hereby are valid and binding obligations of
Orflex enforceable in accordance with their terms, except as may be affected by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or affecting creditors' rights generally or by equitable principles.
3.3 FEES OR COMMISSIONS. Orflex has not employed any broker, agent or
finder or incurred any liability for any brokerage fees, agent's commissions or
finder's fees or similar obligation in connection with the transactions
contemplated hereby.
3.4 NO CONFLICT. Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby will (i) violate or
conflict with, or require any consent under, or result in a breach of any
provision of, or constitute a default
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(or an event which, with notice or lapse of time or both, would constitute a
default) under, or result in the termination of, or accelerate the performance
required by, the terms, conditions or provisions of the Articles of
Organization, Bylaws or Operating Agreement of Orflex, or of any note, bond,
mortgage, indenture, deed of trust, license, agreement or other instrument or
obligation to which Orflex is a party, or by which Orflex may be bound or
affected, or (ii) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to Orflex, except in either event for such breaches or
violations that would not have a material adverse effect on Orflex, the Assets
or the Cincinnati Plant. No consent or approval by, notice to or registration
with any governmental authority is required on the part of Orflex prior to
Closing in connection with the execution and delivery by Orflex of this
Agreement or the consummation by Orflex of any of the transactions contemplated
hereby.
3.5 LITIGATION. There is no action, dispute, claim, litigation,
arbitration, investigation or other proceeding, at law or in equity or by or
before any court of governmental or administrative body (U.S. or foreign),
pending or, to the knowledge of Orflex, threatened against Orflex with respect
to its business, properties, operations or personnel or the transactions
contemplated by this Agreement. Orflex is not subject to any judicial,
governmental or agency judgment, decree or order.
ARTICLE IV CERTAIN
UNDERSTANDINGS AND AGREEMENTS
4.1 NONCOMPETITION. In connection with the contribution of Assets to
Orflex, for a period of five years from and after the Closing Date, without the
prior written consent of Orflex, Printpack will not in any manner, directly or
indirectly, engage in or operate, own, manage, control, join or participate in
the ownership, management, operation or control of:
(i) any manufacturing plant or facility engaged in the manufacture
of flexible packaging located within a 100 mile radius of the Cincinnati
Plant, or
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(ii) any minority owned business that engages in the manufacture,
sale, distribution, marketing or promotion of flexible packaging in the
continental United States or such other geographic area as is found by a
court of competent jurisdiction to be reasonably necessary for the
protection of Orflex.
Printpack agrees that the remedy at law for any breach by it of any of the
foregoing will be inadequate, and that Orflex will be entitled to injunctive
relief for any such breach.
4.2 TRANSITION OF CERTAIN CUSTOMERS. Printpack agrees to cooperate with
Orflex and to take all action reasonably requested by Orflex to insure a smooth
and orderly transition, from Printpack to Orflex, of each of the customers
identified on Exhibit 1.1(a)(iv) attached hereto.
4.3 VALUE OF ASSETS. The parties agree that the fair value of the Assets
and the covenant not to compete set forth in Section 4.1 hereof is $5,300,000
in the aggregate and the parties agree to mutually agree as to the values of
the various categories of assets as soon as practicable.
4.4 FURTHER ASSURANCES. From time to time after the Closing, at Orflex's
request and without further consideration, Printpack will execute and deliver
such other instruments of conveyance and transfer and take such other action as
Orflex may reasonably request to effectively convey, transfer to and vest in
Orflex and to put Orflex in possession and operating control of all or any part
of the Assets and operations of the Cincinnati Plant.
ARTICLE V
SURVIVAL OF REPRESENTATIONS AND
WARRANTIES INDEMNIFICATION
5.1 NATURE AND SURVIVAL OF REPRESENTATIONS; COVENANTS. The
representations and warranties of Printpack contained in Article II of this
Agreement shall survive the Closing Date and shall expire as follows:
(a) the representations and warranties in Sections 2.6(a) and 2.11
shall not expire until the expiration of the applicable statute of
limitations; and
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(b) the representations and warranties contained in all other Sections
shall expire on the second anniversary of the Closing Date;
provided, however, that any representation and warranty which is the subject of
a claim asserted in writing by Orflex prior to such expiration date shall
survive with respect to such claim until the final resolution thereof. The
covenants of the parties contained herein shall survive the Closing Date and
shall not expire until the expiration of the longest applicable statute of
limitations. The representations and warranties of Orflex made in Article III
of this Agreement shall survive the Closing Date and shall not expire until the
second anniversary of the Closing Date.
5.2 INDEMNIFICATION.
(a) Printpack will indemnify and hold harmless Orflex from, against and in
respect of (i) the Nonassumed Liabilities, and (ii) any and all actions, suits,
proceedings, claims, demands, assessments, losses, liabilities, damages,
deficiencies, judgments, costs and expenses (including the reasonable fees and
expenses of Orflex's legal counsel in connection therewith or in connection
with enforcement of this indemnification) arising out of any misrepresentation
or breach of warranty or any default in the due observance of any agreement by
Printpack hereunder or the Nonassumed Liabilities.
(b) Orflex agrees to indemnify and hold harmless Printpack from, against
and in respect of (i) the Assumed Liabilities, and (ii) any and all actions,
suits, proceedings, claims, demands, assessments, losses, liabilities, damages,
deficiencies, judgments, costs and expenses (including the reasonable fees and
expenses of Printpack's legal counsel in connection therewith or in connection
with the enforcement of this indemnification) arising out of any
misrepresentation or breach of warranty or any default in the due observance of
any agreement of Orflex hereunder or the Assumed Liabilities.
5.3 PROCEDURES.
(a) Any party seeking indemnification hereunder (an "Indemnified Party")
agrees to give the party from which indemnification is sought hereunder (the
"Indemnifying Party") prompt written notice of any action, claim, demand,
discovery of fact, proceeding, suit or other facts or circumstances for which
such Indemnified Party
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intends to assert a right to indemnification under this Agreement (a "Claim").
The failure to give timely notice hereunder will not relieve the Indemnifying
Party from its obligations hereunder except that the Indemnifying Party will
not be obligated to pay any costs incurred solely as a result of such notice
not being so given.
(b) The Indemnifying Party shall be entitled to assume the control or
defense of any Claim or matter asserted by a third party or settle or
compromise any Claim by a third party for which the Indemnified Party is
entitled to indemnification hereunder.
(c) Any legal counsel employed by an Indemnifying Party shall be
reasonably acceptable to the Indemnified Party.
(d) The Indemnified Party shall be entitled to participate in the defense
of any such action with its own counsel and at its own expense. If the
Indemnifying Party does not assume the defense of any such Claim or matter
resulting therefrom in accordance with the terms hereof, (i) the Indemnified
Party may defend such Claim in such a manner as it may deem appropriate,
including settling such Claim on such terms as the Indemnified Party may deem
appropriate after giving at least five (5) days' notice of the same to the
Indemnifying Party (provided, however, that the right to receive such notice
does not include or imply any right to approve or object thereto), and (ii) in
any action by the Indemnified Party seeking indemnification from the
Indemnifying Party in accordance with the provisions of this Section, the
Indemnifying Party shall not be entitled to contest or raise any defense to the
amount or nature of any such settlement or judgment.
(e) The Indemnifying Party shall not be required to indemnify the
Indemnified Party unless the amount of any Claim, when aggregated with all
other such Claims of such Indemnified Party, shall exceed $50,000 (the
"Minimum Aggregate Liability Amount"), at which time Claims may be asserted for
all amounts including amounts below the Minimum Aggregate Liability. In no
event shall the Indemnifying Party be obligated to pay Claims asserted by the
Indemnified Party exceeding in the aggregate $5,300,000.
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ARTICLE VI
MISCELLANEOUS
6.1 EXPENSES; TRANSFER TAXES, ETC. Orflex and Printpack each shall pay
their respective costs, fees and expenses incurred in connection with this
Agreement and the transactions contemplated hereby, including without
limitation all fees of legal counsel and accountants.
6.2 PUBLICITY. Neither party shall issue any press release or public
announcement of any of the transactions contemplated by this Agreement, except
as may be mutually agreed to in writing by the parties.
6.3 NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given, if
delivered in person, telegraphed, telexed or mailed by certified or registered
mail, return receipt requested and postage prepaid as follows:
If to Orflex: ORFLEX LTD
000 Xxxx Xxxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxx 00000
Attn: Xxxxx Xxxxxxxxx
with a copy to: Xxxxxxxx & Shohl
1900 Chemed Center
000 X. Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
If to Printpack: Printpack, Inc.
0000 Xxxxxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn: Vice President-Finance
with a copy to: Xxxxxx & Bird
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx
- 16 -
18
6.4 GENERAL.
(a) This Agreement and the attached exhibits and schedules constitute the
entire agreement and understanding of the parties in respect of the
transactions contemplated hereby and supersede all prior agreements,
arrangements and understandings. This Agreement may be amended or modified
only in a writing signed by the parties hereto.
(b) This Agreement may be executed in any number of counterparts, and each
such counterpart hereof shall be deemed to be an original instrument, but all
such counterparts together shall constitute but one agreement.
(c) This Agreement shall be governed by and construed in accordance with
the laws of the State of Ohio.
(d) Any of the terms and conditions of this Agreement may be waived at any
time and from time to time in writing by the party entitled to the benefit
thereof without affecting any other terms and conditions of this Agreement.
The waiver by either party hereto of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent
breach.
(e) The section and paragraph headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(f) This Agreement shall be binding upon, inure to the benefit of, and be
enforceable by, the respective successors and permitted assignees of the
parties hereto. Except as otherwise expressly provided herein, nothing
expressed or implied herein is intended or shall be construed to confer upon or
give any person, firm or corporation, other than the parties hereto, any right
or remedy hereunder or by reason hereof.
(g) The invalidity or unenforceability of any term or provision of this
Agreement shall not affect the validity or enforceability of any of the
remaining terms or provisions hereof.
(h) This Agreement may not be assigned by either party, whether by
operation of law or otherwise, without the written consent of the other party
hereto.
- 17 -
19
IN WITNESS WHEREOF, Orflex and Printpack have caused this Agreement to be
duly executed and delivered on the day and year first written above.
ORFLEX LTD
Witness: /s/ Christopher Che By: /s/ Xxxxx Xxxxxxxxx
------------------------ ---------------------------
Name: Christopher Che Title: President
-------------------------- -------------------------
PRINTPACK, INC.
Witness: /s/ X.X. Xxxxx By: /s/ R. Xxxxxxx Xxxxxxx
------------------------ ---------------------------
Name: Xxxxxxx X. Xxxxx Title: Vice President - Finance
-------------------------- -------------------------
- 18 -
20
EXHIBIT 1.1(a)(ii)
21
EXHIBIT 1.1(a)(iii)
That land situated in the City of Forest Park, County of Xxxxxxxx, State of
Ohio, Springfield Township, and being more particularly described as follows:
Being all of Lots Numbered Five (5), Six (6) and Seven (7) of Northland Park
Subdivision, Block "A", Part 1, as recorded in Plat Book 107, pages 15 through
18, of the Plat Records of Xxxxxxxx County, Ohio Recorder's Office.
22
EXHIBIT 1.1(a)(iv)
Classic Games Coronet Foods
Xxxxx Paper Farmers Cheese
Grecian Delight Gulf States Paper
Hercon Labs Hill & Xxxxxx
Xxxx Bros. MPI Labels
Xxx. Xxxxxxx'x Cookies Xxxxx Foods
Old Fashion Meats Safeway Stores (Carthage, MO; Lawrence, KS)
Stanford Seed Sureco
3 Sigma Voxcom
Wallingford Coffee National Oats
Conwood Tobacco OLMARK Packaging
Fugi Foods Pet Specialties
Xxxxxx Enforcer Products
XxXxx Baking Xxxxxx Xxxxx
Xxxxx, Inc. Coronet Foods
Kapak Corp Trigon Packaging Corp.
Becharas Coffee Coffee Bean, Inc.
Xxxxxxxxx Raisins Indian Harvest
Savannah Foods Sunwest Foods
Comet Xxxx XX Plastics
Xxxxxxx Xxxx Xxx Pacific Bag/Vipco Coffee
Xxxx X. Daily Enjoy Foods International
Country Coffee Xxxxxx & Co.
Westlan Foods Xxxxx Coffee
Quoin Industrial Xxxxxxx Foods Co.
Salt Creek Bar S Foods
Doneli Foods Loveland Foods
Pillsbury Xxxxx & Xxxxx Xxxxx
Xxxx'x Coffee Packaging Corp of America
Tillamook Country Smoker
Xxxx & Co.
American Candy
Eastern Foods
Xxxxxxx Packaging
Sony Magnetic Products
Xxxxxxx Xxxxxx'x Gourmet
Nitritte
Maxell
Package Services
23
EXHIBIT 1.1(a)(vi)
Zee Medical 0-000-000-0000 4401 A Xxxxx Drive Xxxx Xxxxxx
0-000-000-0000 Xxxxxxxx, XX 00000
CG&E 632-3622 Acct. # 1194620220 Xxxx Xxxxxxxx
Xxx Xxxxxxxxx
Xxxxx Fargo System #s 1608125-1 000-000-0000
1608126-1 0-000-000-0000
Pitney Xxxxx 0-000-000-0000 Acct # 18803520206
UPS 000-00-00 Shipper # 484-071
Professional Maint. 579-1152 Acct # 0989-2
Marathon 0-000-000-0000 Acct # 62 011 55 774
FED EX 0-000-000-0000 Acct # 0000-0000-0
Chemical Waste 0-000-000-0000 Acct # 615 615 5004382
Mgmt.
BP Oil 0-000-000-0000 Acct # 029-152-269-6
Compensation 0-000-000-0000 See Attached
Consultants
3S Systems 772-1301 Vender # 20040
Xxxxxx Scale 591-1335 No Acct. #
Applied Process 489-9831
Tech (H2O Treatment)
Xxxxxxxxx Vending See Attached
Workers Comp
Unemployment
Terminix 851-4800 Acct. # 100591-2
Xxxxxx Xxxx # 000-00000
00
XXX Xxx 563-9400 Acct # 001-00596
Aramark 731-1500 Acct # 714764000
BCIS 829-1950 Acct # PRI0270
Cinti Xxxx 566-5050 Acct # 513 825 4800 800
AT&T 0-000-000-0000 Acct # 131 053-0245-723
(800 Service)
Xxxxxx Xxxx # 0000
XXXX (Xxxxxx) 0-000-000-0000 Acct # 9547456-001
Omnifax Service 621-9931
Cinti Water Works 352-1999 Acct # 0000-0000-00
000-0000 000 Northland
AT&T 0-000-000-0000 Acct # 0000-000-0000
(Long Distance)
Outstanding purchase orders placed by Printpack in the ordinary course of
business.
Lease of duPont readymount mounter.
25
EXHIBIT 1.1(a)(viii)
Hazardous Waste Generator Number 0HD004239703
Worker's Compensation Identification Number [Orflex will need it's own Worker's
Compensation Identification Number]
Permit Numbers:
1431170674K009 - Extrusion Laminator & Coater, #31 Xxxx
1431170674K010 - Extrusion Laminator & Coater, #32 Xxxx
1431170674K004 - Flexigraphic Press w/ incinerator, #3 CI Press
1431170674K005 - Flexigraphic Press & Laminator w/ incinerator, #4 CI Press
1431170674K006 - Flexigraphic Press & Coater Laminator w/ incinerator, #5 CI Press
1431170674K007 - Flexigraphic Press & Laminator w/ incinerator, #6 CI Press
1431170674K011 - Six Color Flexigraphic Printing Press, #8 CI Press
1431170674L001 - Parts Washer
431170674T001-T004 - Wash Up Tanks
[Business License?] [OrfFlex will need it own business license.]
Federal Employer Identification Number [Orflex will need its own FEIN.]
General Permit for Stormwater Discharge.
26
EXHIBIT 1.1(b)(iii)
1. VSAT satellite dish and related controls at the Cincinnati Plant.
2. All IBM data processing terminals and related peripheral equipment
located at the Cincinnati Plant.
3. Cameron slitter, model GP-1004, surface wind, razor & shear, rubber draw
roller, 1000 fpm, S/N N4468.
4. Chairs, desks and other office furnishings transferred to the Cincinnati
sales office prior to September 1, 1994.
27
EXHIBIT 1.1(b)(v)
[Outstanding Contracts for sales of product to Xxxx Bros., Cains Coffee, Gulf
States Paper, Sureco, and Xxxxxx Xxxxx]
28
DISCLOSURE SCHEDULE TO CONTRIBUTION AGREEMENT
DATED AS OF JANUARY 5, 1995
BY AND BETWEEN PRINTPACK INC.
AND ORFLEX LTD
Section 2.4
1. Accrued bonuses: $30,000 at November 18, 1994.
2. Accrued shut-down expense: $2,186,000 at November 18, 1994.
Section 2.5
1. Hewlett-Packard computers used at the Cincinnati Plant are leased and the
leases will continue to be paid by Printpack.
2. The duPont readymount mounter is leased by Printpack from duPont on a trial
basis. Orflex will be required to make its own arrangements with duPont with
regard to this equipment.
Section 2.6
1. Facts which would be disclosed by a comprehensive survey of the premises.
2. Taxes for the first half of 1994 and thereafter. Additions or abatements,
if any, which may be made by legally constituted authorities on account of
errors, omissions, or changes in valuation.
3. Easements and rights-of-way for utility purposes granted to Cincinnati Gas
and Electric Company as set forth in Deed Book 4400, page 1027, Deed Book 4006,
Page 938, Deed Book 3726, Page 770 and in Deed Book 3272, Page 213, Xxxxxxxx
County, Ohio Records. NOTE: There is a partial release of easement set forth
in Deed Book 3726, Page 770, as recorded in Deed Book 4411, Page 1314, Xxxxxxxx
County, Ohio Records.
4. The following easements are set forth on Plat Book 107, Pages 15-18:
A. Part of an existing ten (10) foot sewer easement along the panhandle of
Lot 7; and
B. Part of a forty (40) foot drainage easement located at the northwestern
most corner of Lot 7.
29
5. The following restrictions are set forth on Plat Book 107, Pages 15-18:
A. The Village of Forest Park and the Village of Springdale do not accept
any private drainage easements shown on this plat and the Village of Forest
Park and the Village of Springdale are not obligated to maintain or repair any
channels or installations in said easements. The easement area of each lot and
all improvements in it shall be maintained continuously by the owner of the
lot. Within these easements no structure, planting or other material shall be
placed or permitted to remain which may obstruct, retard or change the
directions of the flow of water through the drainage channel in the easement;
and
B. No part of any driveway or driveway approach within the road
right-of-way shall be installed closer than two (2) feet from any inlet, fire
hydrant, utility pole or guy wire anchor.
6. Matters described in memorandum dated 1/4/95 from Xxxxxx X. Xxxxxxxx,
Xxxxxxx Xxxx and Xxxxxxxx Xxxxxxxxx to Xxxxxx Xxxxxx, Xxxx Xxx.
Section 2.8
Printpack has been named as a possible responsible party with respect to
the following superfund sites. This liability was acquired when the Cincinnati
plant was purchased by Printpack.
Xxxxxxx superfund site; New Albany, Indiana
Seymour superfund site; Seymour, Indiana
Enviro-Chem superfund site; Zionsville, Indiana
Great Lakes sites; Zionsville, Indiana (this is a former asphalt plant site and
is essentially co-located with the Enviro-Chem site. Waste material from
Enviro-Chem was stored here at one time).
"Third site"; Zionsville, Indiana (this site is essentially co-located with the
Enviro-Chem site and is an outgrowth of general contamination in the area).
All environmental matters disclosed in the written report dated December 27,
1994 of a Phase I Evironmental Assessment of the Cincinnati Plant conducted by
Civil & Environmental Consultants, Inc., environmental engineers.
All matters disclosed in memorandum dated 1/4/95 from Xxxxxx X. Xxxxxxxx,
Xxxxxxx Xxxx and Xxxxxxxx Xxxxxxxxx to Xxxxxx Xxxxxx, Xxxx Xxx.
30
Section 2.9
1. The authorities listed on Exhibit 1.1(a)(viii) may not be transferable to
Orflex and may terminate when Printpack no longer operates the Cincinnati
Plant.
All matters disclosed in memorandum dated 1/4/95 from Xxxxxx X. Xxxxxxxx,
Xxxxxxx Xxxx and Xxxxxxxx Xxxxxxxxx to Xxxxxx Xxxxxx, Xxxx Xxx.
Section 2.15
1. The property, general liability, umbrella liability, manufacturing errors
liability, automobile liability and physical damage, inland marine and crime
and fiduciary liability coverage described on the seven (7) attached sheets.
2. No claims in excess of $5,000 per occurrence were filed during the last
three years.
