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AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT
BY AND AMONG
SHOREWOOD ASIA VENTURES, LTD.
AND
WESTVACO WORLDWIDE DISTRIBUTION S.A.
MARCH __, 1999
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AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT
AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT dated as of
the ___ day of March, 1999 by and among Shorewood Asia Ventures, Ltd., a private
company limited by shares organized under the laws of Bermuda ("SPC"), the sole
shareholders of which are SPC (Bermuda) Ltd., a Bermuda corporation and SPC
Asia, Ltd., a Bermuda corporation (together, "Shorewood Asia"), each of which is
a wholly-owned subsidiary of Shorewood Packaging Corporation., a Delaware
corporation ("Shorewood"), Shorewood, Westvaco Worldwide Distribution S.A., a
Swiss corporation ("Purchaser") and a wholly-owned subsidiary of Westvaco Corp.,
a Delaware corporation ("Westvaco"), and Westvaco.
W I T N E S S E T H:
WHEREAS, Shorewood Packaging China Ventures Ltd. is a private
company limited by shares organized under the Laws of the Republic of Mauritius
("Shorewood Mauritius"); Shorewood Packaging (GUANGZHOU) Co., Ltd., is a company
established in the People's Republic of China ("Shorewood Guangzhou"); as of the
Closing Date, SPC's share capital will consist of common shares (the "Common
Shares") and preferred shares (the "Preferred Shares"; together, the "Shares");
and as of the Closing Date, Shorewood Asia will be the beneficial and record
owner of all of the issued and outstanding Shares;
WHEREAS, Shorewood Guangzhou was formed to engage in the
business (the "China Business") of operating and maintaining a manufacturing
facility for paperboard folding carton packaging located in Guangzhou, Guangdong
Province, China (the "Facility"); the Facility is presently under construction,
and became operational in the Fall of 1998;
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WHEREAS, on or prior to the Closing Date (as hereinafter
defined), Shorewood expects to cause (i) SPC to become the sole beneficial and
record holder of all of the issued and outstanding equity securities of
Shorewood Mauritius and (ii) Shorewood Mauritius to become the sole beneficial
and record holder of all of the issued and outstanding equity securities of
Shorewood Guangzhou (the transaction described in clause (ii) to be referred to
herein as the "Guangzhou Ownership Change" and the transactions described in
clauses (i) and (ii) to be referred to herein jointly as the "Corporate
Restructuring");
WHEREAS, Purchaser wishes to subscribe for and purchase from
SPC, and SPC wishes to issue to Purchaser, that number of shares of capital
stock of SPC (the "WWD Shares") which shall, after giving effect to such
issuance, represent in the aggregate forty-five percent (45%) of the issued and
outstanding Common Shares of SPC and forty-five percent (45%) of the issued and
outstanding Preferred Shares of SPC, respectively, on the terms and conditions
set forth herein;
WHEREAS, Shorewood has advanced or loaned, or has committed to
advance or loan, various monies to Shorewood Guangzhou (such loans to be herein
referenced to as the "Shorewood Loans") pursuant to a Shareholder's Revolving
Loan Facility Contract, dated as of March 1, 1997 in the form previously
delivered to Purchaser (the "Loan Document");
WHEREAS, on or prior to the Closing Date, all rights under the
Loan Document shall have been assigned to, and all obligations under the Loan
Document shall have been assumed by, Shorewood Mauritius (said transaction, the
"Assignment and Assumption");
WHEREAS, Shorewood has exceeded, or is presently expected to
exceed, the total investment amount for the Facility previously approved by the
State Administration of Foreign Exchange of the People's Republic of China
("SAFE"); and Shorewood intends to seek approval to increase such total
investment amount up to US $50,000,000 (the "Investment Amount Increase");
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WHEREAS, the parties hereto have mutually determined and
agreed that the Chinese Authority Approval (as defined herein) is required to
implement the Guangzhou Ownership Change and the Investment Amount Increase, as
described in this Agreement; and
WHEREAS, the original agreement among the parties concerning
the subject matter hereof (the "Original Agreement") was executed as of October
16, 1998; and the parties are now desirous of amending and restating the
Original Agreement in its entirety, and replacing it with this Agreement, for
the purpose of, among other things, providing that Purchaser will acquire the
WWD Shares by original issuance from SPC rather than by assignment and transfer
from Shorewood Asia.
1. PURCHASE AND SALE OF SHARES
1.1 Purchase Price. The purchase price (the "Purchase Price")
to be paid by Purchaser for the WWD Shares is that amount which, as at the
Closing Date, is equal to forty-five percent (45%) of Shorewood's Project Costs
(as defined in Section 9) to date plus US $5 Million; but in no event shall the
Purchase Price exceed US $25.25 Million. The Purchase Price shall be paid, and
Westvaco shall cause Purchaser to pay the Purchase Price, to SPC at the Closing
in United States Dollars by wire transfer of immediately available funds to an
account(s) designated by Shorewood.
1.2 Additional Payments. (a) At the Closing, the Purchaser
shall, and Westvaco shall cause the Purchaser to, pay to SPC an amount equal to
forty-five percent (45%) of the Shorewood Override Contributions (as defined in
Section 9), if any, in United States Dollars by wire transfer of immediately
available funds to an account or accounts designated by Shorewood.
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(b) Purchaser shall have no obligation to reimburse SPC or
Shorewood in respect of amounts loaned or contributed by Shorewood, directly or
indirectly through the other Shorewood Entities, prior to the Closing in
connection with the China Business which are neither Shorewood Override
Contributions nor Shorewood Project Costs.
(c) Notwithstanding anything to the contrary contained in this
Article 1, Purchaser may credit against the amounts otherwise payable by it at
Closing pursuant to this Section 1 an amount equal to forty-five percent (45%)
of the Net Operating Gains (as defined in Section 9), if any, of the Shorewood
China Entities (as defined in Section 3.3).
(d) The amounts to be paid to or credited against the various
parties at Closing shall be based initially upon the amounts of the Shorewood
Project Costs as of the Closing Date, Shorewood Override Contributions and Net
Operating Gains (Losses) estimated in the Officer's Certificate, subject to
adjustment after the Closing as provided below. Shorewood shall deliver to
Westvaco no later than ten (10) business days prior to the Closing a good faith
estimate of the amounts of the Shorewood Project Costs as of the Closing Date,
Shorewood Override Contributions and Net Operating Gains (Losses) which will be
shown in the Officer's Certificate (the "Estimated Officer's Certificate").
Shorewood and Westvaco hereby endeavor and agree, as soon as practicable after
the Closing, to jointly review the calculations of the Shorewood Project Costs,
Shorewood Override Contributions and Net Operating Gains (Losses) contained in
the Officer's Certificate to determine whether further adjustments to the
Purchase Price or other applicable payments or credits hereunder are necessary,
with a view to completing all adjustments by August 2, 1999. If they so
determine, the Purchase Price or other applicable payments or credits hereunder
shall be adjusted, either upward or downward, and thus Purchaser shall either
pay SPC additional consideration or receive from SPC a refund, as applicable.
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(e) If Westvaco and Shorewood are unable to agree on any
adjustment to the Purchase Price or other applicable payment or credit hereunder
proposed by either one of them, then either one of them, by written notice to
the other, which written notice shall specify the nature of the dispute and
shall provide in reasonable detail the facts or accounting principles upon which
such dispute is based, may submit such dispute for resolution in accordance with
the arbitration procedures set forth in this paragraph. Thereafter, Westvaco and
Shorewood shall use their best efforts to resolve such disagreement. If Westvaco
and Shorewood are unable to resolve any disagreement within twenty (20) days
after the receiving party's receipt of such notice of disagreement, then either
Westvaco or Shorewood (the "Submitting Party") may submit such disagreement to a
certified independent public accounting firm that is nationally recognized (the
"Independent Accounting Firm") and mutually agreeable to Westvaco and Shorewood
upon notice thereof (an "Arbitration Notice") to the other party. If Westvaco
and Shorewood cannot agree upon such election within ten (10) business days
after the Submitting Party's Arbitration Notice is received by the other party,
the Independent Accounting Firm shall be selected by lot from among the other
national public accounting firms in the United States, excluding Deloitte &
Touche LLP and Pricewaterhouse Coopers LLP and their respective Affiliates. The
Independent Accounting Firm will be instructed to use its best efforts to render
its decision as to all items in dispute within thirty (30) days of submission.
The decision of the Independent Accounting Firm shall be final and binding upon
all parties hereto and the amounts paid by Purchaser at the Closing shall be
adjusted, either upward or downward, and thus Purchaser shall either pay to SPC
additional consideration or receive from SPC a refund, in accordance with any
upward or downward adjustment in the amount of the Shorewood Project Costs as of
the Closing Date, Shorewood Override Contributions or Net Operating Gains
(Losses) as determined by the
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Independent Accounting Firm. Each party shall bear its own expenses, including
expenses of its accountants and attorneys in connection with the resolution of
any such dispute, and the fees and expenses of the Independent Accounting Firm
shall be paid by the parties as determined by the Independent Accounting Firm.
(f) During the period beginning on the date Shorewood delivers
the Estimated Officer's Certificate to Westvaco and ending on the date that the
final adjustments to the amounts to be paid by or credited against the various
parties hereunder are determined in accordance with this Section, and during the
period of any dispute within the contemplation of Section 1.2(e), Shorewood
shall: (i) provide Westvaco and its authorized representatives with reasonable
access, during normal business hours and upon reasonable prior written notice,
to all relevant books, records (including work papers, schedules and memoranda),
facilities and employees of Shorewood involved in the preparation of the
Estimated Officer's Certificate and the Officer's Certificate and (ii) cooperate
with Westvaco and its authorized representatives, as they may reasonably
request, including the provision on a timely basis of relevant information used
in preparing the Estimated Officer's Certificate and the Officer's Certificate.
1.3 Instruments of Transfer. At the Closing, (a) SPC shall,
and Shorewood shall cause SPC to deliver one or more certificates representing
the WWD Shares purchased hereunder registered in the name of the Purchaser and
(b) Purchaser shall, and Westvaco shall cause Purchaser to, execute and deliver
to SPC subscription documents in the form of Exhibit 1.3 hereto.
2. CLOSING
2.1 Closing. The closing (the "Closing") of the sale and
purchase of the WWD Shares and the other transactions contemplated hereunder
shall occur as promptly as practicable, but not later than ten (10) business
days following satisfaction or waiver of the conditions set forth
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in Sections 6 and 7 (the "Closing Date"), at the offices of Xxxxx Xxxx LLP, 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at or about 10:00 A.M. local time or at
such other time and place as is agreed to in writing by the parties hereto.
3. REPRESENTATIONS AND WARRANTIES OF SELLER. SPC and Shorewood, jointly
and severally, represent and warrant to the Purchaser as follows:
3.1 Due Formation and Qualification. Each of Shorewood, SPC,
Shorewood Mauritius, Shorewood Asia and Shorewood Guangzhou (together, the
"Shorewood Entities") is an entity duly formed, validly existing and in good
standing under the laws of the jurisdiction of its formation, and, has all
requisite power and authority to own, lease and operate its assets, properties
and business and to conduct its business as now being and as heretofore
conducted.
3.2 Authority to Execute and Perform Documents. Each of SPC
and Shorewood has the full legal right and power and all authority and approval
required to enter into, execute and deliver the "JV Documents" (as hereinafter
defined) and to perform fully its obligations thereunder including, without
limitation, the obligation to convey the Shares to Purchaser, free and clear of
all Liens (as hereinafter defined). The JV Documents have been, or will be at
the Closing, duly executed and delivered by SPC and Shorewood, if it is a party
thereto, and are, or will be when and as executed, the valid and binding
obligation of SPC and Shorewood, if it is a party thereto, enforceable in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, moratorium, reorganization or similar laws
from time to time in effect which affect creditors' rights generally and by
general principles of equity regardless of whether such enforceability is
considered in a proceeding in equity or at law. The execution and delivery of
the JV Documents, the consummation of the transactions contemplated thereby and
the performance by SPC and Shorewood of each of the JV Documents to which it is
a party in
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accordance with its terms and conditions will not require the approval, consent
of, waiver, order or authorization of, or registration, declaration or filing
with, any foreign, federal, state, county, local or other governmental or
regulatory body or the approval or consent of any other person except for the
Chinese Authority Approval. Upon delivery of and payment for the WWD Shares
herein provided, Purchaser will acquire good and valid title thereto, free and
clear of any Lien.
3.3 Capitalization. As of the Closing Date, (a) Shorewood Asia
will be the sole record and beneficial holder of all outstanding equity
securities of SPC and no class of capital stock other than the Common Shares and
the Preferred Shares will be authorized or outstanding; (b) SPC will be the sole
record and beneficial holder of all outstanding equity securities of Shorewood
Mauritius and no class of capital stock other than common shares will be
authorized or outstanding; (c) Shorewood Mauritius will be the sole record and
beneficial holder of all outstanding equity securities of Shorewood Guangzhou;
and (d) there will be as at that time no authorized or outstanding options,
warrants, subscription calls, rights, commitments, conversion rights, plans or
other agreements of any character obligating either SPC, Shorewood Asia,
Shorewood Mauritius or Shorewood Guangzhou (collectively, the "Shorewood China
Entities") to authorize, issue, deliver, sell or redeem any of their respective
securities or other instruments or rights or participations convertible thereto,
except for the right of SPC to redeem the Preferred Shares in accordance with
the Bye-Laws of SPC upon the occurrence of certain events described therein.
3.4 Compliance with Laws. To the best knowledge of SPC and
Shorewood, none of the Shorewood China Entities or Shorewood is in violation of
(i) any applicable order, judgment, injunction, award or decree where such
violation would have a Material Adverse Effect (as hereinafter defined) or (ii)
any applicable law, ordinance or regulation or permit or license or any other
requirement of any governmental or regulatory body, court or arbitrator
applicable to the
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China Business where such violation would have a Material Adverse Effect, except
that Shorewood has exceeded, or is presently expected to exceed, the total
investment amount for the Facility previously approved by SAFE and the Chinese
Authority Approval is required for the Investment Amount Increase, which
approval has not yet been obtained, and other regulatory filings may be required
in connection with the Corporate Restructuring, which filings have not yet been
made. The parties acknowledge and confirm that, as of this date, the Chinese
Authority Approval required to implement the Guangzhou Ownership Change has been
obtained, which approval is attached hereto as Schedule 3.4.
3.5 No Breach. The execution, delivery and performance of the
JV Documents have not and the consummation of the transactions contemplated
thereby will not (i) violate, conflict with or result in a breach of any of the
provisions of the organizational documents or similar instruments of SPC or
Shorewood, (ii) violate, conflict with or result in the breach of any of the
terms of, result in a material modification of, or otherwise give any other
contracting party the right to terminate, or constitute (or with notice or lapse
of time or both constitute) a default (by way of substitution, notation or
otherwise) under, any instrument, contract or other agreement to which SPC or
Shorewood is or was a party or by or to which either of them or any of their
assets or properties may be bound or subject, (iii) violate any order, writ,
judgment, injunction, award or decree of any court, arbitrator or governmental
or regulatory body against, or binding upon, SPC or Shorewood or upon the
securities, properties or business of either SPC or Shorewood; or (iv) except
for the matters referenced in the last proviso of Section 3.4, violate any
statute, law or regulation of any jurisdiction as such statute, law or
regulation relates to SPC or Shorewood, the Shares, or, to the best knowledge of
SPC and Shorewood, the China Business.
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3.6 Litigation; Actions and Proceedings. There are no
outstanding orders, judgments, injunctions, awards or decrees of any court,
governmental or regulatory body or arbitration tribunal against or involving
either Shorewood Asia, Shorewood Mauritius or Shorewood Guangzhou; and there are
no outstanding orders, judgments, injunctions, awards or decrees of any court,
governmental or regulatory body or arbitration tribunal against Shorewood which
would have a material adverse effect on the ability of SPC or Shorewood to
consummate the transactions contemplated hereby. There are no actions, suits or
claims (including construction claims) or legal, administrative or arbitral
proceedings or, to the knowledge of SPC or Shorewood, investigations pending or,
to the knowledge of SPC, threatened in writing against or involving Shorewood,
Shorewood Asia, Shorewood Mauritius or Shorewood Guangzhou or any of their
respective properties or assets, that individually or in the aggregate, could
have a Material Adverse Effect.
3.7 Consents. Except for the Chinese Authority Approval, each
required filing or registration with, or consent, approval or other action of,
any governmental department, commission, board, bureau, agency or
instrumentality has been made, received, or taken, as the case may be, in
connection with the valid execution, delivery and performance of the JV
Documents by SPC and Shorewood.
3.8 Finders and Investment Bankers. None of the Shorewood
Entities, nor any of their respective managers, officers or directors, have
employed any broker or finder or incurred any liability for any brokerage fees,
commissions or finders' fees in connection with the transactions contemplated
hereby.
3.9 SPC Knowledge. Notwithstanding anything to the contrary
set forth in this Section 3 or elsewhere in this Agreement, the qualification of
any representation, warranty or
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statement made by or in respect of either SPC or Shorewood or both SPC and
Shorewood, whether set forth in this Section 3 or in an exhibit or schedule
referenced in this Section 3 or anywhere else in this Agreement by use of the
words "to SPC's knowledge", "to Shorewood's knowledge", "to SPC's best
knowledge", "to Shorewood's best knowledge", "known to SPC" or "known to
Shorewood" or words to that effect means that, after reasonable inquiry with the
personnel having supervisory responsibility over the matter at hand, no
information has come to the knowledge of either Xxxx X. Xxxxx, Xxxxxx Xxxxx,
Xxxxxx Xxxxxxx, Xxxxxxx Xxxxx, Xxxxx Xxxxxxxxx, Xxxxxx "Xxx" Xxxxxx or Xxxxx
Xxxxxxxx.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER
The Purchaser and Westvaco jointly and severally represent and
warrant to SPC and Shorewood as follows:
4.1 Due Organization. Each of Purchaser and Westvaco is an
entity duly formed and validly existing under the laws of its jurisdiction of
incorporation and has full power and lawful authority to own, lease and operate
its assets, properties and business and to carry on its business as now being
and as heretofore conducted.
4.2 Purchase for Investment; Speculative Investment. Purchaser
is purchasing the Shares for its own account, for investment and not for resale
or distribution. Purchaser acknowledges that an investment in the Shares
involves special, speculative and substantial risk because, among other things,
the China Business is at a formative stage, the Facility has not yet commenced
operations and Shorewood Guangzhou presently has no customers or sales or
operating history and the political and economic climate in China remains
uncertain and unpredictable. Purchaser further represents that it has made the
determination to enter into this Agreement based upon its own independent
evaluation and assessment of the present and
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prospective business prospects of the China Business and has not relied on, or
been induced to enter into this Agreement on account of, any representation or
warranty of any kind, whether oral or written, express or implied, except for
such representations and warranties of SPC and Shorewood as are specifically set
forth in this Agreement and the other JV Documents.
4.3 Compliance with Laws. Neither Westvaco nor Purchaser is in
violation of any applicable order, judgment, injunction, award or decree where
such violation would have a material adverse effect on the ability of Purchaser
or Westvaco to consummate the transactions contemplated hereby. Neither Westvaco
nor Purchaser is in violation of any federal, state or local law, ordinance or
regulation or any other requirement of any governmental or regulatory body,
court or arbitrator applicable to its business where such violation would have a
material adverse effect on the ability of Purchaser or Westvaco to consummate
the transactions contemplated hereby.
4.4 No Breach. The execution, delivery and performance of the
JV Documents and the consummation of the transactions contemplated thereby will
not (i) violate, conflict with or result in a breach of any of the provisions of
the certificate of formation or other applicable instrument of the Purchaser or
Westvaco; (ii) violate, conflict with or result in the breach of any of the
terms of, result in a material modification of, or otherwise give any other
contracting party the right to terminate, or constitute (or with notice or lapse
of time or both constitute) a default (by way of substitution, novation or
otherwise) under, any instrument, contract or other agreement to which Purchaser
or Westvaco is a party or by or to which they or any of their respective assets
or properties may be bound or subject; (iii) violate any order, writ, judgment,
injunction, award or decree of any court, arbitrator or governmental or
regulatory body against, or binding upon, Purchaser or Westvaco; or (iv) violate
any statute, law or regulation of any jurisdiction as such statute, law or
regulation relates to the Purchaser or Westvaco.
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4.5 Consents. Each required filing or registration with, or
consent, approval or other action of, any governmental department, commission,
board, bureau, agency or instrumentality has been made, received, or taken, as
the case may be, in connection with the valid execution, delivery and
performance of the JV Documents by Purchaser and Westvaco.
4.6 Finders and Investment Bankers. Neither Purchaser nor
Westvaco has employed any broker or finder or incurred any liability for any
brokerage fees, commissions or finders' fees in connection with the transactions
contemplated hereby.
5. COVENANTS AND AGREEMENTS. The parties covenant and agree as
follows:
5.1 Consent to Jurisdiction and Service of Process. Any legal
action, suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby may be instituted in any state or federal court
located in New York County, State of New York, and each party agrees not to
assert, by way of motion, as a defense, or otherwise, in any such action, suit
or proceeding, any claim that it is not subject personally to the jurisdiction
of such court, that its property is exempt or immune from attachment or
execution, that the action, suit or proceeding is brought in an inconvenient
forum, that the venue of the action, suit or proceeding is improper or that this
Agreement or the subject matter hereof may not be enforced in or by such court.
Each party further irrevocably submits to the non-exclusive jurisdiction of any
such court in any such action, suit or proceeding. SPC hereby appoints Xxxxxx
Xxxxx, Esq., General Counsel, Shorewood Packaging Corporation, at its offices at
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and Purchaser hereby appoints Xxxx X.
Xxxxxxxxxxxx, Corporate Secretary, Westvaco Corp., Westvaco Building, 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (or at each such person's or entity's office at
such other address as such person or entity hereafter furnishes to the other
parties) as such party's authorized agent to accept and acknowledge on such
party's behalf service of any and all process
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that may be served in any such action, suit or proceeding. Any and all service
of process and any other notice in any such action, suit or proceeding shall be
effective against any party if given personally or by registered or certified
mail, return receipt requested, or by any other means of mail that requires a
signed receipt, postage prepaid, mailed to such party as herein provided.
Nothing herein contained shall be deemed to affect the right of any party to
serve process in any manner permitted by law or to commence legal proceedings or
otherwise proceed against any other party in any jurisdiction other than New
York. Each of the parties hereto hereby irrevocably waives the right to a jury
trial in respect of any proceeding or claim arising under the JV Documents.
5.2 Public Announcements. Neither Purchaser nor Westvaco nor
any Shorewood Entity shall, without the prior consent of the others, make any
public statement, announcement or release to trade publications or to the press,
or make any statements to any competitor, customer or any third party, with
respect to the JV Documents except to the extent that any party is advised by
its counsel that a public statement is required by law, in which event such
party may make appropriate public disclosure upon prior notice to the other
parties.
5.3 Further Assurances. Each of the parties shall execute such
documents or other papers and take such further actions as may be reasonably
required or desirable to carry out the provisions hereof and the transactions
contemplated hereby. Each such party shall use its reasonable efforts to fulfill
or obtain the fulfillment of the conditions to Closing.
5.4 Conduct of China Business Before Closing. From the date
hereof until the Closing Date, Shorewood shall, and shall cause each of the
other Shorewood Entities to, (a) operate the China Business in the ordinary
course and (b) refrain from taking any action which would require a material
change or addition to or a deletion from the disclosures of SPC and Shorewood
contained in Section 3. Except as may be required to effect the Corporate
Restructuring or the
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Assignment and Assumption, Shorewood shall not, without the prior written
consent of Purchaser, permit or cause any of the Shorewood China Entities to:
(a) except as may be required to comply with any
valid and mandatory government regulation, amend its charter documents or
by-laws;
(b) except for the issuance of securities
contemplated by the Corporate
Restructuring, issue stock;
(c) merge, consolidate, liquidate or dissolve;
(d) acquire or make a substantial investment in
another business;
(e) change the number of its directors;
(f) change its independent auditors;
(g) incur indebtedness in excess of US$500,000 in the
aggregate at anytime outstanding, other than purchases on credit in the ordinary
course of business and Shorewood Project Costs and Shorewood Override
Contributions;
(h) enter into transactions with Affiliates, except
that Shorewood or any of its Affiliates may provide services or personnel at
cost or goods or equipment at fair market value to such Shorewood China Entity
without restriction hereunder;
(i) sell a material portion of its assets;
(j) distribute property or cash to the holders of its
equity; provided that SPC may, and is hereby expressly authorized to, declare a
dividend issuable to the holders of record of the Preferred Shares and the
Common Shares as of the instant immediately preceding the Closing, out of the
contributed surplus of SPC, in an amount equal to the Purchase Price (as the
same may be adjusted from time to time pursuant to Section 1.2(d) or (e)), which
dividend shall be payable out of proceeds of the Purchase Price when and as same
are available; or
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(k) commence or settle litigation other than in the
ordinary course of business.
In connection with the continued operation of the China
Business between the date hereof and the Closing, Shorewood shall confer in good
faith, as Westvaco may reasonably request, with one or more representatives of
Westvaco designated in writing as Westvaco's representatives with respect to the
China Business. Shorewood agrees to use all reasonable efforts to deliver to
Westvaco true and complete copies of the instruments of formation and other
organizational documents of each of Shorewood China Entities as soon as is
reasonably practicable after the date hereof.
6. DELIVERIES BY SPC TO PURCHASER AT CLOSING. At the Closing, the
following deliveries shall be made by SPC and Shorewood to Purchaser, and the
following conditions shall be satisfied, in connection with the execution and
delivery of this Agreement and the consummation of the transactions contemplated
by the JV Documents, except to the extent, if any, waived by Purchaser:
6.1 Delivery of Assignment of WWD Shares. SPC shall have
delivered to Purchaser the certificate or certificates representing the WWD
Shares. SPC shall have paid, or cause to be paid, all transfer and other taxes
required to be paid in connection with the issuance to Purchaser of the WWD
Shares.
6.2 Stockholders' Agreement. Shorewood Asia and SPC shall have
delivered to Purchaser a duly executed counterpart copy of the Members Agreement
of Shorewood Asia Ventures, Ltd. (the "Stockholders' Agreement") attached hereto
as Exhibit 6.2.
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6.3 Representations, Warranties and Covenants. The
representations and warranties of SPC and Shorewood contained in the JV
Documents shall be true in all material respects on and as of the Closing Date
with the same force and effect as though made on and as of the Closing Date,
except for representations and warranties specifically relating to a time or
times other than the Closing Date (which shall be true and correct in all
material respects at such time or times). SPC and Shorewood shall have performed
and complied in all material respects with all covenants and agreements required
by the JV Documents to be performed or complied with by SPC and Shorewood on or
prior to the Closing Date. SPC shall have delivered to Purchaser a certificate,
dated the Closing Date and signed by each of them, to the foregoing effect and
stating that all conditions to Purchaser's obligations hereunder have been
satisfied.
6.4 Transactions Completed; Approval Obtained. (a) The
Assignment and Assumption and the Corporate Restructuring shall have been
completed and (b) the China Authority Approval (as defined below) shall have
been obtained or waived. As used herein, the "China Authority Approval" shall
mean (i) with respect to the Guangzhou Ownership Change, the approval or written
waiver of the Ministry of Foreign Trade and Economic Cooperation of the People's
Republic of China (MOFTEC) or such lesser governmental or regulatory body of the
People's Republic of China or any of its political subdivisions as may be
empowered or authorized under applicable law and regulation then in effect to
grant such approval or waiver and (ii) with respect to the Investment Amount
Increase, the approval or written waiver of the MOFTEC or, if as a result of an
intervening change of law or regulation or interpretation thereof such approval
is no longer necessary, the approval or written waiver (if any is required) of
such other governmental or regulatory body of the People's Republic of China or
the Province of Guangdong or any of their respective political subdivisions as
may be empowered or authorized under applicable law and
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regulation then in effect to grant such approval or waiver. The parties confirm
that the condition of this Section 6.4, as it applies to clause (i) above, has
been discharged and satisfied.
6.5 CFO Certificate. Shorewood shall have delivered to
Purchaser (i) no later than ten (10) business days prior to the Closing the
Estimated Officer's Certificate; and (ii) at or prior to the Closing the
Officer's Certificate.
7. DELIVERIES BY PURCHASER TO SPC AT CLOSING. At the Closing, the
following deliveries shall be made by Purchaser and Westvaco to SPC, and the
following conditions shall be satisfied, in connection with the execution and
delivery of the JV Documents and the consummation of the transactions
contemplated by the JV Documents, except to the extent, if any, waived by SPC:
7.1 Deliverables. Purchaser shall have delivered to SPC a duly
executed counterpart copy of the Stockholders' Agreement signed by Purchaser.
7.2 Representations and Covenants. The representations and
warranties of Purchaser and Westvaco contained in the JV Documents shall be true
in all material respects on and as of the Closing Date with the same force and
effect as though made on and as of the Closing Date, except for representations
and warranties specifically relating to a time or times other than the Closing
Date (which shall be true and correct in all material respects at such time or
times). Purchaser and Westvaco shall have performed and complied in all material
respects with all covenants and agreements required by the JV Documents to be
performed or complied with by them on or prior to the Closing Date. Purchaser
shall have delivered to SPC a certificate, dated the Closing Date and signed by
one of its officers, to the foregoing effect and stating that all conditions to
SPC's obligations hereunder have been satisfied.
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7.3 Purchase Price. Purchaser shall have delivered to SPC the
Purchase Price and any other payments required to be made by it in accordance
with Sections 1.1 and 1.2.
8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; EARLY TERMINATION;
INDEMNIFICATION.
8.1 Survival of Representative and Warranties; Early
Termination. All representations and warranties contained in this Agreement
shall survive for a period of eighteen (18) months after the Closing Date. This
Agreement may be terminated at any time prior to the Closing Date (a) by mutual
agreement of Westvaco and Shorewood, (b) by Westvaco, by written notice to
Shorewood, if the conditions set forth in Section 6, or any of them, are not
complied with or performed or waived on or before the eighteen (18) month
anniversary of the date of the Original Agreement (through no fault of Westvaco)
or (c) by Shorewood, by written notice to Westvaco, if the conditions set forth
in Section 7, or any of them, are not complied with or performed or waived on or
before the eighteen (18) month anniversary of the date of the Original Agreement
(through no fault of Shorewood).
8.2 Indemnification. (a) Westvaco and Purchaser and their
respective managers, directors, representatives and officers (individually, a
"Westvaco Indemnitee") shall be indemnified and held harmless by Shorewood from
and against any and all losses, claims, damages, liabilities, expenses
(including reasonable legal fees and expenses), judgments, fines, settlements
and other amounts arising from any and all claims, demands, actions, suits or
proceedings, civil, criminal, administrative or investigative, in which the
Westvaco Indemnitee may be involved, or threatened to be involved, as a party or
otherwise by reason of any breach of any representation or warranty made by
Shorewood and SPC contained in Section 3 of this Agreement and (b) Shorewood and
SPC and each of their respective managers, directors, representatives and
officers
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(individually, a "Shorewood Indemnitee") shall be indemnified and held
harmless by Westvaco from and against any and all losses, claims, liabilities,
expenses (including reasonable legal fees and expenses), judgments, fines,
settlements and other amounts arising from any and all claims, demands, actions,
suits or proceedings, civil, criminal, administrative or investigative, in which
the Shorewood Indemnitee may be involved or threatened to be involved, as a
party or otherwise, by reason of any breach of any representation or warranty of
Westvaco and Purchaser contained in Section 4 of this Agreement.
9. CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the definitions hereinafter ascribed to them:
The term "Affiliate" means, with respect to any
party, any entity or individual that directly or indirectly controls, is
controlled by or is under common control with such entity.
(a) "JV Documents" shall mean (i) this Agreement and
(ii) the Stockholders' Agreement. Any reference to a JV Document with respect to
a party means any JV Document to be executed by such party.
(b) "Lien" shall mean any lien, pledge, mortgage,
security interest, claim, lease, charge, option, right of first refusal,
easement, servitude, transfer restriction under any operating or similar
agreement, encumbrance, judgment, order, writ, injunction, award, decree or any
other similar restriction or limitation whatsoever.
(c) "Material Adverse Effect" shall mean a material
adverse effect upon the assets, properties, business, operations, or condition
(financial or otherwise) of the China Business taken as a whole.
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(d) "Officer's Certificate" means a certificate of
Shorewood executed by the Chief Financial Officer of Shorewood, dated the
Closing Date, certifying as to the amount of the Shorewood Project Costs,
Shorewood Override Contributions, and Net Operating Gains (Losses), and
containing a summary description setting forth in reasonable detail how the
respective amounts were derived.
(e) "Interim Period Working Capital Contributions"
means all sums up to an aggregate amount of $15,000,000 loaned or contributed by
Shorewood, directly or indirectly through the other Shorewood Entities, after
the Shorewood Project Costs have been funded in full and prior to the Closing
Date to fund the working capital requirements of the China Business.
(f) "Net Operating Gains (Losses)" means the combined
EBITDA (earnings (losses) before interest, taxes, depreciation and amortization)
of the Shorewood Chinese Entities for the period commencing on the date hereof
and ending on the Closing Date, as reflected in the audited, to the extent
available, and the unaudited, unconsolidated financial statements of the
Shorewood Chinese Entities for the applicable period or periods, and certified
by the Chief Financial Officer of Shorewood as at the Closing Date in the
Officer's Certificate.
(g) "Shorewood Override Contributions" means all
Interim Period Working Capital Contributions plus all other amounts, if any,
loaned or contributed by Shorewood, directly or indirectly through the other
Shorewood Entities, after the Shorewood Project Costs have been funded in full
and prior to the Closing Date (i) to fund capital expenditures of the China
Business, up to an aggregate amount of $750,000 per quarter or (ii) otherwise in
connection with the China Business pursuant to a budget or other instrument or
consent jointly approved by Shorewood and Westvaco.
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(h) "Shorewood Project Costs" means all direct and
indirect, hard and soft, costs and expenses up to an aggregate amount of
$45,000,000 paid or incurred by Shorewood and the other Shorewood Entities at
any time in connection with the formation and organization of the Shorewood
China Entities, the acquisition of the land rights underlying the Facility and
the construction, build-out, equipping, roll-out and operation of the Facility,
including, without limitation, fees paid to outside consultants, reasonable
travel expenses, deposits, fees paid to attorneys, due diligence expenses,
capitalized interest, working capital, pre-operational SGA, construction costs,
professional fees, acquisition costs, equipment costs and purchases, personnel
recruitment and training costs, capital improvement work, and governmental fees
and assessments.
10. MISCELLANEOUS.
10. Notices. Any notice or other communication required or
permitted hereunder shall be in writing and shall be delivered personally,
telegraphed, telexed, sent by confirmed facsimile transmission or sent by
certified, registered or express mail, postage prepaid. Any such notice shall be
deemed given when so delivered personally, telegraphed, telexed or sent by
facsimile transmission or, if mailed, two days after the date of deposit in the
United States mails, as follows:
(i) if to SPC, to:
c/o Shorewood Packaging
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx, Esq.,
Vice President and General Counsel
Facsimile No.: (000) 000-0000
and a copy to:
Xxxxx Xxxx LLP
000 Xxxx Xxxxxx
00
00
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
(ii) If to Purchaser, to:
Westvaco Corp.
Westvaco Building
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Facsimile No: (000) 000-0000
Any party may by notice given in accordance with this Section
to the other parties designate another address or person for receipt of notices
hereunder.
10.2 Entire Agreement. The JV Documents (including the
schedules) and the collateral agreements executed in connection with the
consummation of the transactions contemplated herein contain the entire
agreement among the parties with respect to the purchase of the WWD Shares and
related transactions, and supersedes all prior agreements, written or oral, with
respect thereto, including, without limitation, the Original Agreement.
10.3 Waivers and Amendments; Non-Contractual Remedies;
Preservation of Remedies. The JV Documents may be amended, superseded, canceled,
renewed or extended, and the terms hereof may be waived, only by a written
instrument signed by the parties or, in the case of a waiver, by the party
waiving compliance. No delay on the part of any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof, nor shall any
waiver on the part of any party of any such right, power or privilege, nor any
single or partial exercise of any such right, power or privilege, preclude any
further exercise thereof or the exercise of any other such right, power or
privilege. The rights and remedies herein provided are cumulative and are not
exclusive of any rights or remedies that any party may otherwise have at law or
in equity.
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10.4 Governing Law. The JV Documents shall be governed and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely within such State (without giving
effect to conflicts of law principles thereof).
10.5 Binding Effect; No Assignment; No Third Party
Beneficiaries. The JV Documents shall be binding upon and inure to the benefit
of the parties and their respective successors, assigns and legal
representatives. Nothing contained herein is intended or shall be construed as
creating third party beneficiaries to. None of the JV Documents is assignable,
except by operation law or as permitted in accordance with the express terms of
any such document or with the consent of all parties thereto.
10.6 Variations in Pronouns. All pronouns and any variations
thereof refer to the masculine, feminine or neuter, singular or plural, as the
context may require.
10.7 Counterparts. The JV Documents may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute one and the same instrument. Each counterpart may consist of a number
of copies hereof each signed by less than all, but together signed by all of the
parties hereto.
10.8 Exhibits and Schedules The Exhibits and Schedules are a
part of this Agreement as if fully set forth herein. All references herein to
Sections, subsections, clauses, Exhibits and Schedules shall be deemed
references to such parts of this Agreement, unless the context shall otherwise
require.
10.9 Headings. The headings in this Agreement are for
reference only, and shall not affect the interpretation of this Agreement.
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10.10 Expenses. Each of the SPC and the Purchaser shall pay
its expenses incident to preparing, entering into and performing the JV
Documents and the transactions contemplated therein, except for an amount equal
to $10,000 constituting the expenses incurred by Shorewood in connection with
the initial draft of the Stockholders' Agreement, which amount shall be treated
for all purposes under the JV Documents as a Shorewood Project Cost.
[INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, each of the parties hereto has executed
this Agreement as of the date first above written.
SHOREWOOD PACKAGING CORPORATION
By:
Name:
Title:
WESTVACO WORLDWIDE DISTRIBUTION S.A.
By:
Name:
Title:
WESTVACO CORPORATION
By:
Name:
Title:
SHOREWOOD ASIA VENTURES, LTD.
By:
Name:
Title:
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PARTIES TO THE ORIGINAL AGREEMENT
SPC (BERMUDA) LTD.
By:
Name:
Title:
SPC ASIA, LTD.
By:
Name:
Title:
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