1
Exhibit 2.2
Reorganization Agreement dated as of July 1, 1996 by and among Printpack
Holdings, Inc., Printpack, Inc., Printpack Enterprises, Inc. and Printpack
Illinois, Inc.
2
ARTICLE 1 THE REORGANIZATION 2
1.1 Transfer of Equity Interests in U.K. 2
1.2 Transfer of Printpack Stock to Enterprises 2
1.3 Transfer of Intellectual Property and Empaques Equity
Interest to IHC 2
1.4 Transfer of North American Assets to Printpack 2
1.5 Assumption of Liabilities 2
1.6 Issuance of Enterprises Stock 3
1.7 Transfer of Printpack Intellectual Property and Illinois Assets 3
ARTICLE 2 ADDITIONAL AGREEMENTS 3
2.1 Intercorporate Services Agreement 3
2.2 Tax Allocation Agreement 3
2.3 License Agreement(s) 3
2.4 Transfer Taxes; Other Costs 3
2.5 Resale Restrictions 3
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF HOLDINGS 4
3.1 Organization, Power and Authority 5
3.2 Consents and Approvals; No Conflict or Violation 5
3.3 Capital Stock 5
3.4 Governmental Proceedings or Litigation 5
3.5 Investment Intent 5
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF ENTERPRISES 6
4.1 Organization, Power and Authority 6
4.2 Consent and Approvals; No Conflict or Violation 6
4.3 Capital Stock 6
4.4 North American Assets 6
4.5 Enterprises' Intellectual Property 7
4.6 Title to Empaques Shares 7
4.7 Governmental Proceedings or Litigation 7
4.8 Investment Intent 7
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF PRINTPACK 7
5.1 Organization, Power and Authority 7
5.2 Consents and Approvals; No Conflict or Violation 8
5.3 Capital Stock 8
5.4 Title to U.K. Entities Equity Interests 8
5.5 U.K. Entities Receivable 8
5.6 Printpack Intellectual Property; Illinois Assets 8
5.7 Governmental Proceedings or Litigation 9
ARTICLE 6 REPRESENTATIONS AND WARRANTIES OF IHC 9
6.1 Organization, Power and Authority 9
6.2 Consents and Approvals; No Conflict or Violation 9
6.3 Capital Stock 9
6.4 Governmental Proceedings or Litigation 9
6.5 Investment Intent 10
ARTICLE 7 CLOSING; CONDITIONS TO CLOSING 10
7.1 Time of Closing 10
7.2 Conditions to Closing 10
7.3 Transactions and Documents at Closing 11
ARTICLE 8 MISCELLANEOUS 12
8.1 Survival 12
8.2 Further Assurances 12
8.3 Amendment and Modification 13
8.4 Waiver of Compliance; Consents 13
8.5 Binding Effect; No Third Party Beneficiaries 13
8.6 Notices 13
8.7 Governing Law 13
8.8 Entire Agreement 13
8.9 Multiple Counterparts 13
8.10 Invalidity, Inconsistency or Conflict 13
8.11 Captions and References 14
8.12 Specific Performance 14
8.13 Assignment of Contracts, Rights, Etc. 14
3
REORGANIZATION AGREEMENT
THIS REORGANIZATION AGREEMENT (this "Agreement") is made and entered
into by and among PRINTPACK HOLDINGS, INC., a Delaware corporation
("Holdings"); PRINTPACK, INC., a Georgia corporation ("Printpack"); PRINTPACK
ENTERPRISES, INC., a Georgia corporation ("Enterprises"); and PRINTPACK
ILLINOIS, INC., an Illinois corporation ("IHC") to have effect from the
beginning of the parties' fiscal year 1997.
RECITALS:
Holdings owns approximately 99.7 percent of the outstanding common
stock of Printpack and approximately 90.8 percent of the outstanding common
stock of Enterprises. Printpack owns all of the outstanding common stock of
IHC.
The Boards of Directors of Holdings, Printpack, Enterprises and IHC
deem it advisable and in the best interests of Holdings, Printpack, Enterprises
and IHC and their respective shareholders and stockholders to undertake, among
other things, the following: (i) Printpack will distribute to Holdings
Printpack's interests (both the equity interest and the intercompany account
receivable) in the U.K. Entities (as hereinafter defined); (ii) Holdings will
transfer, convey and contribute to Enterprises all of the shares of Printpack
common stock held by Holdings as contemplated by ss.351 of the Internal Revenue
Code of 1986, as amended (the "Code"); (iii) Enterprises will issue additional
shares of its common stock to Holdings; (iv) Enterprises will transfer, convey
and contribute to IHC, as contemplated by ss. 351 of the Code, all of
Enterprises' intellectual property and Enterprises' one (1) percent equity
interest in Empaques Printpack De Mexico, S.A. De C.V., a Mexican corporation
("Empaques"); (v) Enterprises will transfer, convey and contribute to
Printpack, as contemplated by ss. 351 of the Code, all of Enterprises' North
American Assets (as hereinafter defined); (vi) Printpack will assume all of the
liabilities of Enterprises associated with the North American Assets and the
Enterprises Intellectual Property and issue to Enterprises additional shares of
Printpack's common stock; and (vii) Printpack will transfer, convey and
contribute to IHC, as contemplated by ss. 351 of the Code, Printpack's
intellectual property and the real estate constituting Printpack's Elgin,
Illinois plant and all tangible personal property located at or used in
connection with the operation of such plant.
The parties wish to provide for certain additional matters as described
herein; and
The transactions and additional matters described in this Agreement are
subject to receipt of required consents and approvals and the satisfaction of
certain other conditions, all as described in this Agreement.;
NOW, THEREFORE, in consideration of the foregoing and the mutual
warranties, representations, covenants and agreements set forth herein and
contained in
4
any agreement or other document executed in connection with this Agreement, the
parties agree as follows:
ARTICLE 1
THE REORGANIZATION
1.1 TRANSFER OF EQUITY INTEREST IN U.K. Entities and Receivable from
U.K. Entities. Subject to the terms and conditions hereof, at Closing (as
hereinafter defined), Printpack agrees to distribute and convey to Holdings,
and Holdings agrees to acquire from Printpack, all right, title and interest of
Printpack in and to: (a) all of the issued and outstanding share capital of
Printpack Holdings, Ltd., organized under the laws of the United Kingdom
("PHL"), and Printpack Europe, Ltd., organized under the laws of the United
Kingdom ("PEL") (PHL and PEL are sometimes referred to collectively as the
"U.K. Entities") owned and held of record by Printpack, which has an estimated
fair value of zero; and (b) all amounts owed to Printpack by the U.K. Entities,
which amounts are reflected on the books and records of Printpack as
intercompany receivables and which have an aggregate face amount equal to
approximately $56,500,000 and an estimated fair value of zero (the "U.K.
Receivables").
1.2 TRANSFER OF PRINTPACK STOCK TO ENTERPRISES. Subject to the terms
and conditions hereof, at Closing, Holdings agrees to assign, transfer, convey,
deliver and contribute to Enterprises as contemplated by ss.351 of the Code,
and Enterprises agrees to acquire from Holdings, all right, title and interest
of Holdings in and to the 3,018,982 shares of the common stock of Printpack
(the "Printpack Common Stock") owned and held of record by Holdings.
1.3 TRANSFER OF INTELLECTUAL PROPERTY AND EMPAQUES EQUITY INTEREST
TO IHC. Subject to the terms and conditions hereof, at Closing, Enterprises
agrees to assign, transfer, convey, deliver and contribute to IHC as
contemplated by ss.351 of the Code, and IHC agrees to acquire from Enterprises:
(i) all right, title and interest of Enterprises in and to all trademarks (both
registered and unregistered), patents, inventions covered by patent
applications, copyrighted works, trade secrets, know-how, confidential
information and other intellectual property owned by Enterprises (collectively,
the "Enterprises Intellectual Property"); and (ii) all right, title and
interest of Enterprises in and to the outstanding equity capital of Empaques
owned and held of record by Enterprises.
1.4 TRANSFER OF NORTH AMERICAN ASSETS TO PRINTPACK. Subject to the
terms and conditions hereof, at Closing, Enterprises agrees to assign,
transfer, convey, deliver and contribute to Printpack as contemplated by ss.351
of the Code, and Printpack agrees to acquire from Enterprises, all right, title
and interest of Enterprises in and to the operating assets of Enterprises
located in the United States, other than the Enterprises Intellectual Property,
(collectively, the "North American Assets").
1.5 ASSUMPTION OF LIABILITIES; Issuance of Printpack Stock. In part
consideration of the transfers and conveyances contemplated hereinabove, at
Closing,
- 2 -
5
Printpack agrees to: (a) assume and timely pay all liabilities and perform all
obligations of Enterprises associated with the North American Assets and the
Enterprises Intellectual Property (the "Assumed Liabilities"); and (b) issue to
Enterprises 1,189,850 shares of Printpack common stock.
1.6 ISSUANCE OF ENTERPRISES STOCK. In part consideration of the
transfers and conveyances contemplated hereinabove, at Closing, Enterprises
agrees to issue to Holdings 7,975,499 shares of the no par value per share
common stock of Enterprises (the "Enterprises Common Stock").
1.7 TRANSFER OF PRINTPACK INTELLECTUAL PROPERTY AND ILLINOIS ASSETS.
Subject to the terms and conditions hereof, at Closing, Printpack agrees to
assign, transfer, convey, deliver and contribute to IHC as contemplated by
ss.351 of the Code, and IHC agrees to acquire from Printpack, all right, title
and interest of Printpack in and to all: (i) trademarks (both registered and
unregistered), patents, inventions covered by patent applications, copyrighted
works, trade secrets, know-how, confidential information and other intellectual
property owned by Printpack (collectively, the "Printpack Intellectual
Property"); (ii) the real property constituting Printpack's Elgin, Illinois
plant, together with all tangible personal property and intangible property
located at such plant or used in connection therewith (collectively, the
"Illinois Assets").
ARTICLE 2
ADDITIONAL AGREEMENTS
2.1 INTERCORPORATE SERVICES AGREEMENT. At Closing, Printpack and
IHC shall enter into an Intercorporate Services Agreement in substantially the
form attached hereto as Exhibit 2.1 (the "Services Agreement").
2.2 TAX ALLOCATION AGREEMENT. At Closing, Holdings, Enterprises,
Printpack and IHC shall enter into a Tax Allocation Agreement in substantially
the form attached hereto as Exhibit 2.2 (the "Tax Allocation Agreement").
2.3 LICENSE AGREEMENT(S). At Closing, Printpack, Holdings,
Enterprises, Empaques, Printpack Receivables Funding Corp. and IHC shall enter
into license agreements in substantially the respective forms attached hereto
as Exhibit 2.3 (the "License Agreements").
2.4 TRANSFER TAXES; OTHER COSTS. Printpack shall be responsible
for any documentary transfer taxes and any sales, use or other taxes, other
than income taxes based on a party's income, imposed by reason of the
transactions contemplated hereunder.
2.5 RESALE RESTRICTIONS; Stock Legends. It is understood and
acknowledged that the shares of Printpack common stock and Enterprises common
stock to be issued or conveyed hereunder will not be registered under the
Securities Act of 1933, as amended (the "1933 Act"), the Georgia Securities Act
of 1973, as amended, or the securities or
- 3 -
6
blue sky laws of any other state, but will be issued in reliance upon certain
exemptions from registration thereunder, that the statutory basis for such
exemption is dependent upon each party's undertaking to acquire such shares for
purposes of investment only and without the intent of participating directly or
indirectly in a distribution thereof, and that by reason of the exemptions to
be relied upon in connection with their issuance, such shares will not be
freely transferable, any proposed sale or other disposition of such shares may
be prohibited, and any resales or other dispositions will in any event be
subject to significant restrictions. Accordingly, each party acquiring shares
hereunder agrees that it will not dispose of any of any shares so acquired
unless such disposition does not violate the 1933 Act and any applicable state
securities or blue sky laws or regulations, or such shares have been validly
registered under the 1933 Act and any and all applicable state securities or
blue sky laws. Each certificate for shares of Printpack common stock or
Enterprises common stock issued or conveyed hereunder shall bear a legend in
substantially the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("FEDERAL ACT"), THE
GEORGIA SECURITIES ACT OF 1973, AS AMENDED ("GEORGIA ACT") OR ANY OTHER
STATE SECURITIES OR BLUE SKY LAWS. THESE SECURITIES HAVE BEEN ISSUED IN
RELIANCE UPON EXEMPTIONS PROVIDED UNDER THE FEDERAL ACT AND UPON THE
EXEMPTION PROVIDED BY SECTION 10-5-9(13) OF THE GEORGIA ACT. THESE
SHARES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY AND MAY NOT BE
OFFERED FOR SALE, HYPOTHECATED, SOLD OR TRANSFERRED IN THE ABSENCE OF
(I) AN EFFECTIVE REGISTRATION STATEMENT WITH RESPECT TO THE SHARES
UNDER THE GEORGIA ACT, OR AN OPINION OF COUNSEL SATISFACTORY TO THE
CORPORATION THAT THE TRANSACTION BY WHICH SUCH SHARES WILL BE OFFERED
FOR SALE, HYPOTHECATED, SOLD OR TRANSFERRED IS EXEMPT UNDER THE GEORGIA
ACT OR IS OTHERWISE IN COMPLIANCE WITH THE GEORGIA ACT, AND (II) AN
EFFECTIVE REGISTRATION STATEMENT WITH RESPECT TO THE SHARES UNDER THE
FEDERAL ACT AND ANY OTHER APPLICABLE STATE LAW, OR AN OPINION OF
COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION IS
NOT REQUIRED."
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF HOLDINGS
Holdings hereby represents and warrants as follows:
- 4 -
7
3.1 ORGANIZATION, POWER AND AUTHORITY. Holdings is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware. Holdings has all necessary corporate power and authority and
has taken all requisite corporate action necessary to enter into this
Agreement, consummate the transactions contemplated hereby and perform its
obligations hereunder. This Agreement has been duly executed by Holdings and
constitutes the legal, valid and binding obligation of Holdings, enforceable
against Holdings in accordance with its terms (except to the extent that
enforcement is affected by laws pertaining to bankruptcy, reorganization,
insolvency, and creditors' rights and by the availability of injunctive relief,
specific performance, and other equitable remedies).
3.2 CONSENTS AND APPROVALS; NO CONFLICT OR VIOLATION. No consent,
approval or authorization of, or registration, declaration or filing with, any
governmental or regulatory authority, or any other person or entity, is
required to be made or obtained by Holdings in connection with the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby will
result in: (i) a violation of or a conflict with any provision of the
Certificate of Incorporation or the Bylaws of Holdings; (ii) a breach of, or a
default under, any term or provision of any contract, agreement, indebtedness,
lease, commitment, license, franchise, permit, authorization or concession to
which Holdings is a party; or (iii) a violation by Holdings of any statute,
rule, regulation, ordinance, code, order, judgment, writ, injunction, decree or
award applicable to it.
3.3 CAPITAL STOCK. The shares of Printpack Common Stock to be
conveyed to Enterprises by Holdings hereunder have been duly authorized and
validly issued and are fully paid and nonassessable. Holdings has, and shall
convey to Enterprises, good and marketable title to the shares of Printpack
Common Stock, free and clear of all claims, liens, restrictions, security
interests or encumbrances of any kind (other than restrictions on transfer of
such shares under applicable securities laws).
3.4 GOVERNMENTAL PROCEEDINGS OR LITIGATION. No action by any
governmental authority has been instituted or threatened which questions the
validity or legality of the transactions contemplated hereby.
3.5 INVESTMENT INTENT. With respect to the shares of Enterprises
common stock to be issued to Holdings as contemplated in Section 1.6 above,
and the outstanding shares of the U.K. Entities to be transferred to Holdings as
contemplated in Section 1.1 above, Holdings represents and warrants that it is
the sole party in interest in its participation in this Agreement and is
acquiring such shares of Enterprises common stock and such outstanding shares
of the U.K. Entities solely for investment for its own account, with no present
agreement, understanding, intent or arrangement to subdivide, sell, assign, or
transfer any part or all of such shares, or any interest therein, to any other
person.
- 5 -
8
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF ENTERPRISES
Enterprises hereby represents and warrants as follows:
4.1 ORGANIZATION, POWER AND AUTHORITY. Enterprises is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Georgia. Enterprises has all necessary corporate power and authority
and has taken all requisite corporate action necessary to enter into this
Agreement, consummate the transactions contemplated hereby and perform its
obligations hereunder. This Agreement has been duly executed by Enterprises and
is a legal, valid and binding obligation of Enterprises, enforceable against
Enterprises in accordance with its terms (except to the extent that enforcement
is affected by laws pertaining to bankruptcy, reorganization, insolvency, and
creditors' rights and by the availability of injunctive relief, specific
performance, and other equitable remedies).
4.2 CONSENTS AND APPROVALS; NO CONFLICT OR VIOLATION. Except as
specified in Exhibit 4.2 hereto, no consent, approval or authorization of, or
registration, declaration or filing with, any governmental or regulatory
authority, or any other person or entity, is required to be made or obtained by
Enterprises in connection with the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby. Neither
the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby will result in: (i) a violation of or a
conflict with any provision of the Amended and Restated Articles of
Incorporation or the Bylaws of Enterprises; (ii) a breach of, or a default
under, any term or provision of any contract, agreement, indebtedness, lease,
commitment, license, franchise, permit, authorization or concession to which
Enterprises is a party; or (iii) a violation by Enterprises of any statute,
rule, regulation, ordinance, code, order, judgment, writ, injunction, decree or
award applicable to it.
4.3 CAPITAL STOCK. The authorized capital stock of Enterprises
consists of 15,000,000 shares of common stock, without par value. All of the
shares of Enterprises common stock to be issued to Holdings hereunder have
been and will be, upon issuance, duly authorized, validly issued, fully paid
and non assessable.
4.4 NORTH AMERICAN ASSETS. Enterprises has, and will convey to
Printpack, good and marketable title to the North American Assets, free and
clear of all claims, liens, restrictions, security interests or encumbrances of
any kind, except for those that do not, individually or in the aggregate,
materially adversely affect the use of the North American Assets in the
business of Enterprises and will not so affect the use of the North American
Assets in the business of Printpack. All of the North American Assets are
transferred "as is" and "where is" without warranty of any kind except for the
warranty of title contained in this Section 4.4.
- 6 -
9
4.5 ENTERPRISES' INTELLECTUAL PROPERTY. Enterprises has, and will
convey to IHC, good and marketable title to the Enterprises Intellectual
Property, free and clear of all claims, liens, restrictions, security interests
or encumbrances of any kind, except for those that do not, individually or in
the aggregate, materially adversely affect the use of the Enterprises
Intellectual Property in the business of Enterprises and will not so affect the
use of the Enterprises Intellectual Property in the business of IHC. All of the
Enterprises Intellectual Property is transferred "as is" and "where is" without
warranty of any kind except for the warranty of title contained in this Section
4.5.
4.6 TITLE TO EMPAQUES SHARES. The equity capital of Empaques to be
conveyed to IHC by Enterprises hereunder has been duly authorized and validly
issued and is fully paid and nonassessable. Enterprises has, and shall convey
to Printpack, good and marketable title to the Empaques equity capital], free
and clear of all claims, liens, restrictions, security interests or
encumbrances of any kind (other than restrictions on transfer of such shares
under applicable securities laws).
4.7 GOVERNMENTAL PROCEEDINGS OR LITIGATION. No action by any
governmental authority has been instituted or threatened which questions the
validity or legality of the transactions contemplated hereby.
4.8 INVESTMENT INTENT. With respect to the shares of Printpack
Common Stock to be transferred to Enterprises as contemplated in Section 1.2
above and the shares of Printpack common stock to be issued to Enterprises as
contemplated in Section 1.5 above, Enterprises represents and warrants that it
is the sole party in interest in its participation in this Agreement and is
acquiring the shares of Printpack common stock solely for investment for its
own account, with no present agreement, understanding, intent or arrangement to
subdivide, sell, assign, or transfer any part or all of such shares, or any
interest therein, to any other person.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF PRINTPACK
Printpack hereby represents and warrants as follows:
5.1 ORGANIZATION, POWER AND AUTHORITY. Printpack is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Georgia. Printpack has all necessary corporate power and authority and
has taken all requisite corporate action necessary to enter into this
Agreement, to consummate the transactions contemplated hereby and to perform
its obligations hereunder. This Agreement has been duly executed by Printpack
and is a legal, valid and binding obligation of Printpack, enforceable against
Printpack in accordance with its terms (except to the extent that enforcement
is affected by laws pertaining to bankruptcy, reorganization, insolvency, and
creditors' rights and by the availability of injunctive relief, specific
performance, and other equitable remedies).
- 7 -
10
5.2 CONSENTS AND APPROVALS; NO CONFLICT OR VIOLATION. Except as
provided in Exhibit 5.2 hereto, no consent, approval or authorization of, or
registration, declaration or filing with, any governmental or regulatory
authority, or any other person or entity, is required to be made or obtained by
Printpack in connection with the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby. Neither
the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby will result in: (i) a violation of or a
conflict with any provision of the Amended and Restated Articles of
Incorporation or the Bylaws of Printpack; (ii) a breach of, or a default under,
any term or provision of any contract, agreement, indebtedness, lease,
commitment, license, franchise, permit, authorization or concession to which
Printpack is a party; or (iii) a violation by Printpack of any statute, rule,
regulation, ordinance, code, order, judgment, writ, injunction, decree or award
applicable to it.
5.3 CAPITAL STOCK. The authorized capital stock of Printpack
consists of 15,000,000 shares of common stock, $5.00 par value per share. All
of the shares of Printpack common stock to be issued to Enterprises have been
and will be, upon issuance, duly authorized, validly issued, fully paid and non
assessable.
5.4 TITLE TO U.K. ENTITIES EQUITY INTERESTS. Printpack is the
registered and beneficial owner of share capital representing a 30.96% equity
interest in PHL and a 5% equity interest in PEL. Printpack has, and shall
convey to Enterprises at Closing, good and marketable title to such share
capital], free and clear of all claims, liens, restrictions, security interests
or encumbrances of any kind (other than restrictions on transfer of such shares
under applicable securities laws).
5.5 U.K. ENTITIES RECEIVABLE. The U.K. Receivables are valid
obligations of the U.K. Entities and are not subject to any offset or
counterclaim. Printpack has, and shall convey to Holdings at Closing, good and
marketable title to the U.K. Receivables, free and clear of all claims, liens,
restrictions, security interests or other encumbrances of any kind. Except for
the warranty of title contained in this Section 5.5, Printpack makes no
warranty with respect to the U.K. Receivables and the U.K. Receivables were
conveyed "as is" and "where is."
5.6 PRINTPACK INTELLECTUAL PROPERTY; ILLINOIS ASSETS. Printpack
owns or holds a valid leasehold or license interest in and to, and will convey
(or cause to be conveyed) the same to IHC hereunder, in and to the Printpack
Intellectual Property and the Illinois Assets, free and clear of all liens,
restrictions, security interests or encumbrances of any kind, except for such
encumbrances as do not, individually or in the aggregate, materially and
adversely affect the use of the Printpack Intellectual Property and the
Illinois Assets by Printpack or that will, following such conveyance,
materially and adversely affect the use of the Printpack Intangible Property or
the Illinois Assets by IHC.
- 8 -
11
5.7 GOVERNMENTAL PROCEEDINGS OR LITIGATION. No action by any
governmental authority has been instituted or threatened which questions the
validity or legality of the transactions contemplated hereby.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF IHC
IHC hereby represents and warrants as follows:
6.1 ORGANIZATION, POWER AND AUTHORITY. IHC is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Illinois. IHC has all necessary corporate power and authority and has taken all
requisite corporate action necessary to enter into this Agreement, to
consummate the transactions contemplated hereby and to perform its obligations
hereunder. This Agreement has been duly executed by IHC and is a legal, valid
and binding obligation of IHC, enforceable against IHC in accordance with its
terms (except to the extent that enforcement is affected by laws pertaining to
bankruptcy, reorganization, insolvency, and creditors' rights and by the
availability of injunctive relief, specific performance, and other equitable
remedies).
6.2 CONSENTS AND APPROVALS; NO CONFLICT OR VIOLATION. No consent,
approval or authorization of, or registration, declaration or filing with, any
governmental or regulatory authority, or any other person or entity, is
required to be made or obtained by IHC in connection with the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby will
result in: (i) a violation of or a conflict with any provision of the Articles
of Incorporation or the Bylaws of IHC; (ii) a breach of, or a default under,
any term or provision of any contract, agreement, indebtedness, lease,
commitment, license, franchise, permit, authorization or concession to which
IHC is a party; or (iii) a violation by IHC of any statute, rule, regulation,
ordinance, code, order, judgment, writ, injunction, decree or award applicable
to it.
6.3 CAPITAL STOCK. The authorized capital stock of IHC consists of
ten thousand (10,000) shares of common stock, no par value per share, of which,
as of the date of this Agreement and, as of the date of Closing and following
the consummation of the transactions contemplated hereby, one thousand (1,000)
shares will be issued and outstanding. All of the shares of IHC common stock
outstanding have been and will be, upon issuance, duly authorized, validly
issued, fully paid and non assessable.
6.4 GOVERNMENTAL PROCEEDINGS OR LITIGATION. No action by any
governmental authority has been instituted or threatened which questions the
validity or legality of the transactions contemplated hereby.
- 9 -
12
6.5 INVESTMENT INTENT. With respect to the equity interest in Empaques
to be acquired from Printpack as contemplated in Section 1.3 above, IHC
represents and warrants that it is the sole party in interest in its
participation in this Agreement and is acquiring the equity interest in
Empaques solely for investment for its own account, with no present agreement,
understanding, intent or arrangement to subdivide, sell, assign, or transfer
any part or all of such shares, or any interest therein, to any other person.
ARTICLE 7
CLOSING; CONDITIONS TO CLOSING
7.1 TIME OF CLOSING. The closing of the transactions contemplated
hereby (the "Closing") will be held at such time and place as the parties shall
agree promptly following the date on which all of the conditions precedent
specified in this Agreement have been (or can be at Closing) satisfied or
waived by the party or parties permitted to do so. The parties agree that each
of the transactions contemplated by this Agreement is intended to be effective
as of the beginning of each of the parties' fiscal year 1997 and that,
regardless of the date of execution of the instruments and other documents
giving effect to the transactions contemplated hereby, such transactions shall
have effect as of the first day of such fiscal year and as among the parties
hereto the Closing shall be deemed to have occurred as of the first day of such
fiscal year.
7.2 CONDITIONS TO CLOSING. The obligations of the parties to consummate
the transactions contemplated hereby are subject to the satisfaction or waiver,
on or prior to the Closing, of each of the following conditions:
(a) Governmental Consents and Approvals. All approvals and
authorizations of, filings and registrations with, and notifications
to, all federal, state and foreign governmental authorities required
for the consummation of the transactions contemplated hereby shall have
been duly obtained or made and shall be in full force and effect. All
waiting periods required by law shall have expired or been waived by
the appropriate governmental authorities.
(b) Other Consents. All consents and approvals as required
for the consummation of the transactions contemplated hereby shall have
been duly obtained and shall be in full force and effect.
(c) Corporate Action. The Board of Directors and, where
appropriate, shareholders of each of the parties shall have taken all
corporate action necessary to effectuate the transactions contemplated
hereby, and shall have furnished certified copies of the resolutions
duly adopted by such Boards of Directors and shareholders evidencing
the same.
(d) Representations and Warranties. The representations and
warranties of the parties set forth in this Agreement shall be true and
correct in all
-10-
13
material respects as of the date of Closing with the same effect as
though all such representations and warranties had been made
thereon.
(e) No Injunction; Permissible Transactions. None of the
parties shall be prohibited by any order, ruling, consent decree,
judgment or injunction of a court or regulatory agency of competent
jurisdiction from consummating the transactions contemplated by this
Agreement, and consummation of the transactions contemplated hereby
shall be legally permissible pursuant to applicable law.
7.3 TRANSACTIONS AND DOCUMENTS AT CLOSING.
At the Closing:
(a) All North America Assets consisting of real estate owned by
Enterprises will be transferred and conveyed to Printpack by
appropriate deeds; such deeds will be recorded and the required filing
fees and transfer taxes paid;
(b) The real estate constituting Printpack's Elgin, Illinois
plant will be transferred and conveyed by Printpack to IHC by
appropriate deeds, such deeds will be recorded and the required filing
fees and transfer taxes paid;
(c) All intellectual property of Printpack and Enterprises will
be transferred to IHC and appropriate instruments prepared and executed
for recording in the U.S. Patent and Trademark Office and other
appropriate governmental offices with respect to patents and
trademarks;
(d) All North America Assets consisting of tangible personal
property or intangible personal property (other than intellectual
property) owned by Enterprises will be transferred and conveyed to
Printpack by means of a blanket ▇▇▇▇ of sale, with appropriate resale
certificates or other required documentation;
(e) All North American Assets consisting of real or personal
property leases will be assigned and transferred to Printpack together
with all required lessor and landlord consents and approvals;
(f) All North American Assets consisting of contracts to which
Enterprises is a party will be assigned and transferred to Printpack
together with all required third party consents and approvals.
(g) Existing collective bargaining agreements, if any, to which
Enterprises is a party will be assigned to Printpack, with appropriate
negotiation with the applicable unions;
-11-
14
(h) All licenses of intellectual property rights from third
parties to Enterprises or Printpack will be assigned and transferred to
IHC, together with all required licensor consents and approvals;
(i) To the extent assignable, any governmental licenses or
permits held by Enterprises and relating to the North American Assets
will be assigned or transferred to Printpack or IHC, as appropriate;
(j) Printpack and/or IHC will undertake to obtain new licenses,
permits, registrations and identification numbers, to the extent that
these cannot be transferred from Enterprises or Printpack, including,
without limitation:
(i) state qualifications to transact business as a
foreign corporation in each state other than in the
state of incorporation;
(ii) sales tax numbers and other tax identification
numbers;
(iii) business licenses; and
(iv) state and federal environmental permits and licenses.
(k) Existing insurance coverage held by Enterprises with
respect to the North American Assets (including but not limited to
casualty insurance for assets transferred, liability insurance of
various types, and obligations for coverage related to unemployment and
workers' compensation) will be transferred to Printpack and existing
insurance coverage held by Printpack with respect to the Illinois
assets (including but not limited to casualty insurance for assets
transferred, liability insurance of various types, and obligations for
coverage related to unemployment and worker's compensation) will be
transferred to IHC, or appropriate new insurance coverage obtained by
Printpack and/or IHC.
ARTICLE 8
MISCELLANEOUS
8.1 SURVIVAL. The covenants, agreements, representations and warranties
of the parties hereto contained herein or in any certificate or other writing
delivered pursuant hereto or in connection herewith shall survive the
consummation of the transactions contemplated hereby.
8.2 FURTHER ASSURANCES. Both before and after the Closing, each party
will cooperate in good faith with the other and will take all appropriate
action and execute any documents, instruments or conveyances of any kind which
may be reasonably necessary or advisable to carry out any of the transactions
contemplated hereunder.
-12-
15
8.3 AMENDMENT AND MODIFICATION. This Agreement may be amended,
modified or supplemented only by written agreement of the parties hereto.
8.4 WAIVER OF COMPLIANCE; CONSENTS. Any failure of a party to comply
with any obligation, covenant, agreement or condition herein may be waived by
the other party; provided, however, that any such waiver may be made only by a
written instrument signed by the party granting such waiver, but such waiver or
failure to insist upon strict compliance with such obligation, covenant,
agreement or condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure.
8.5 BINDING EFFECT; NO THIRD PARTY BENEFICIARIES. This Agreement and
all of the provisions hereof shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns.
Nothing in this Agreement, expressed or implied, is intended or shall be
construed to confer upon any person other than the parties, any successors and
permitted assigns any rights, remedy or claim under or by reason of this
Agreement or any provision herein contained.
8.6 NOTICES. All notices or other communications to any party to this
Agreement required or permitted hereunder shall be in writing and shall be
deemed to have been duly given or made (i) five days after the date when
deposited, postage prepaid in the United States mail, by registered or
certified mail (return receipt requested) or (ii) when delivered if delivered
by hand or by facsimile (with receipt acknowledged) to a party hereto at the
address set forth below such party's signature on the signature page to this
Agreement (or at such other address for a party as shall be specified by like
notice).
8.7 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the Laws of the State of Georgia (without regard to its
conflicts of law doctrines).
8.8 ENTIRE AGREEMENT. This Agreement, together with all exhibits and
schedules and other documents and instruments referred to herein, embodies the
entire agreement among the parties pertaining to the subject matter hereof and
supersedes all prior agreements, understandings, negotiations and discussions,
whether oral or written, of the parties.
8.9 MULTIPLE COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.10 INVALIDITY, INCONSISTENCY OR CONFLICT. In the event that any one
or more of the provisions contained in this Agreement or in any other
instrument referred to herein, shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, then to the maximum extent permitted
by law, such invalidity, illegality or unenforceability shall not affect any
other provision of this Agreement or any other such instrument. In the event of
any inconsistency or conflict between any provision of this Agreement and any
-13-
16
provision of any other agreement, document or instrument referred to herein,
the provision of this Agreement shall govern.
8.11 CAPTIONS AND REFERENCES. The captions or headings of the Articles
and Sections herein are inserted for convenience of reference only and are not
intended to be a part of or to affect the meaning or interpretation of this
Agreement.
8.12 SPECIFIC PERFORMANCE. Each of the parties acknowledges that money
damages would not be a sufficient remedy for any breach of this Agreement and
that irreparable harm would result if this Agreement were not specifically
enforced. Therefore, the rights and obligations of the parties under this
Agreement shall be enforceable by a decree of specific performance issued by
any court of competent jurisdiction, and appropriate injunctive relief may be
applied for and granted in connection therewith. A party's right to specific
performance shall be in addition to all other legal or equitable remedies
available to such party.
8.13 ASSIGNMENT OF CONTRACTS, RIGHTS, ETC. Notwithstanding anything
contained in this Agreement to the contrary, this Agreement shall not
constitute an agreement by any party hereto to assign any of its right, title
or interest in or to any contract, license, lease, commitment, sales order,
purchase order or other agreement or any claim or right of any benefit arising
thereunder or resulting therefrom if the attempted assignment thereof, without
the consent of a third party thereto, would constitute a breach thereof or in
any way adversely affect the rights of any party hereto. Each party hereto
shall use its reasonable efforts to obtain, and to cooperate with the other
parties hereto in obtaining, any required third party consent to the assignment
or transfer of any such right, title or interest as contemplated by this
Agreement. If such consent is not obtained, the parties hereto shall cooperate
in any reasonable arrangements designed to provide the intended transferee with
the benefits thereunder, including enforcement for the benefit of such intended
transferee of any and all rights of any other party hereto against such third
party arising out of the cancellation by such third party or otherwise.
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be duly executed on their respective behalf by their respective
officers thereunto duly authorized, all as of the day and year first above
written.
[Signatures Appear on the Following Pages]
-14-
17
PRINTPACK HOLDINGS, INC.
By: /s/
------------------------------------------
Its:
-------------------------------------
Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
PRINTPACK, INC.
By: /s/
------------------------------------------
Its:
-------------------------------------
Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
PRINTPACK ENTERPRISES, INC.
By: /s/
-----------------------------------------
Its:
-------------------------------------
Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
-15-
18
PRINTPACK ILLINOIS, INC.
By: /s/
--------------------------------------
Its:
------------------------------
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
-16-
19
Exhibit Description
------- -------------
2.1 Form of Services Agreement
2.2 Form of Tax AllocationAgreement
2.3 Forms of License Agreements
4.2 Consents Required by Enterprises
5.2 Consents Required by Printpack
20
EXHIBIT 4.2
Consents Required by Enterprises
1. Consents of Lenders
2. Consents of Landlords under Leases
3. Consents of Other Parties to Contracts to be Assigned
4. Consents of Licenses Under Intellectual Property Licenses
21
EXHIBIT 5.2
Consents Required by Printpack
1. Consents of Lenders
2. Consents of Landlords Under Leases
3. Consents of Other Parties to Contracts to be Assigned
4. Consents of Licensors Under Intellectual Property Licenses.