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[EXHIBIT 10.1]
ASSET ACQUISITION AND
FACILITY USE AGREEMENT
THIS ASSET ACQUISITION AND FACILITY USE AGREEMENT (the "Agreement") is made
the 13th day of April, 2000.
B E T W E E N:
SCHMALBACH-LUBECA PLASTIC CONTAINERS USA, INC., a Delaware
corporation, having its principal place of business at 10521 Highway
M-52, Manchester, Michigan 48158 ("S-L")
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BCB USA CORP., a Georgia corporation, having its principal place of
business at 5405 Cypress Center Drive, Suite 100, Tampa, Florida,
33609 ("BCB").
WHEREAS, S-L, BCB and BCB's ultimate parent company, Cott Corporation
("CC", with BCB and CC hereinafter collectively referred to as "Cott") are
parties to a certain Memorandum of Agreement dated February 17, 2000
("Memorandum") and Supply Agreement of even date herewith ("Supply Agreement")
relating to the sale by BCB to S-L of certain equipment, inventory and other
assets relating to the production of polyethylene terephthalate ("P.E.T.")
preforms and containers, and the supply by S-L to BCB and CC of such preforms
and containers from and after the date on which such sale is completed; and
WHEREAS, in order to give effect to the Memorandum, S-L desires to purchase
such assets from BCB, utilize certain of BCB's existing facilities and hire
certain of BCB's employees; and
WHEREAS, attached to the Memorandum is Schedule "A" ("Memorandum Schedule
A") which outlines the terms of such purchase and sale, facility use and
employee hiring as more fully set forth herein; and
WHEREAS, the parties desire to enter into this Agreement in order to more
completely set forth the purchase and sale of the Purchased Assets (as
hereinafter defined) and facility use arrangement outlined in Memorandum
Schedule A.
NOW THEREFORE THE PARTIES AGREE AS FOLLOWS:
1. MEMORANDUM SCHEDULE A.
(a) Memorandum Schedule A is attached hereto and, for purposes of this
Agreement, is referred to as "Schedule A". Schedule A is incorporated
herein and made part hereof by the references to it hereinbelow. It is
understood that Schedule A contains provisions related to the Supply
Agreement as well as the asset acquisition, facility use and employee
hiring relating to this Agreement. The provisions relating to the
Supply Agreement are the subject of a separate agreement between the
parties and are not incorporated into this Agreement by any of the
references hereinbelow.
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(b) Provisions in Schedule A which relate to the subject matter of this
Agreement but which are not otherwise referenced in the body of this
Agreement are hereby incorporated by reference and are part of this
Agreement.
(c) In the event of a conflict between the terms and conditions of the
body of this Agreement and Schedule A, the terms and conditions in the
body of this Agreement shall govern.
2. PURCHASE AND OPERATION OF INJECTION AND BLOW MOLDING ASSETS.
(a) S-L hereby purchases:
(i) the injection molding assets at BCB's Leland, North Carolina
facility and the blow molding assets at BCB's San Antonio, Texas,
Tampa, Florida and Wilson, North Carolina facilities (all of such
facilities being hereinafter collectively described as the
"Facilities"), upon the terms and conditions set forth in Section
2.0 of Schedule A;
(ii) all additional assets set forth in Section 2.1.3.1 of Schedule A,
it being acknowledged that BCB's inventories of raw and packaging
materials described therein (collectively, the "Inventories")
include, without limitation, raw and packaging materials located
at outside warehouses or stored in trailers, as well as
inventories in transit; and
(iii) all preforms which have been produced by Cott as of the date
hereof but which are to be blow molded into containers by S-L
pursuant to the terms of the Supply Agreement,
and all of such assets are herein collectively described as the
"Purchased Assets").
Exhibit C hereto ("New Exhibit C") supersedes and replaces Exhibit C
to Schedule A.
(b) In addition to the warranties of Cott set forth in Schedule A relating
to the Purchased Assets, and except as otherwise confirmed to S-L in
writing, Cott hereby warrants and represents that the assets appearing
on New Exhibit C have not been moved or relocated from the facilities
where they were located as of the date of the Memorandum.
(c) With respect to Section 2.1.4 of Schedule A, in the event any of the
equipment is not in good working condition as of the date hereof, and
S-L discovers that fact, and notifies Cott in writing, within thirty
(30) days following the date hereof of the condition of such
equipment, then, at Cott's option, Cott shall either repair or replace
such equipment in a timely manner, failing which such equipment shall
be removed from New Exhibit C, in which case the net book value of the
Purchased Assets shall be adjusted downward accordingly.
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(d) It is understood and agreed that the Purchased Assets include such
trade secrets and other intangible intellectual property as are
necessary to enable S-L to supply preforms and bottles pursuant to the
Supply Agreement which are similar to those currently produced by BCB
with the Purchased Assets at the weights at which they are currently
being produced (but not any other intellectual property, including,
without limitation, any patents or applications for lightweighting).
3. TOTAL PURCHASE PRICE.
(a) The total purchase price for all of the Purchased Assets, excluding
the Inventories, is Fourteen Million Two Hundred and Ninety Thousand
Seven Hundred and Twenty-Eight Dollars and Seventy-Six Cents
($14,290,728.76). Upon the closing of the transactions contemplated
herein, S-L shall pay the purchase price for such Purchased Assets in
full, by wire transfer of funds, in accordance with BCB's wiring
instructions which have been previously provided to S-L.
(b) The purchase price for the Inventories shall be established based on a
count taken by the parties, using the valuations attached hereto as
Schedule 3(b). Within seven days following the date hereof, S-L shall
pay the purchase price for the Inventories in full, by wire transfer
of funds, in accordance with BCB's wiring instructions which have been
previously provided to S-L.
4. HART-SCOTT-RODINO FILINGS.
The parties acknowledge they have filed and supplied, or caused to be filed
and supplied, all notifications and information required to be filed or supplied
by any of them in connection with the transactions contemplated under the
Memorandum, Schedule A and this Agreement pursuant to the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, and early termination of the thirty (30) day
waiting period was granted by the Federal Trade Commission on March 3, 2000.
5. ASSUMED LIABILITIES.
With the exception of any liabilities expressly assumed by S-L in Schedule
A or in any agreements or instruments delivered in connection with the
Memorandum, Schedule A or this Agreement, S-L assumes no liabilities or other
obligations of Cott. S-L acknowledges and confirms that it hereby assumes, and
agrees to indemnify, defend and save harmless BCB from and against, all of the
outstanding liabilities of BCB set out on Exhibits B (excluding any items
already in the purchase price for the Inventories) and D (other than those
expressed on Exhibit D to be retained by Cott) to the Memorandum which relate to
the injection molding and blow molding operations conducted by BCB, including,
without limitation, orders for raw and/or packaging materials in transit and not
yet received at any of the Facilities.
6. DOCUMENTS TO BE DELIVERED CONTEMPORANEOUSLY WITH THE ENTERING INTO OF THIS
AGREEMENT.
(a) BCB shall execute and deliver to S-L a Bill of Sale in form and
substance acceptable to S-L, acting reasonably, fully executed,
conveying, selling, transferring and delivering to S-L all of the
assets set forth on Exhibits B and C to Schedule A, free and clear of
any liens or encumbrances.
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(b) BCB shall obtain releases of all liens on the assets and present those
to S-L at or prior to the date hereof.
(c) BCB shall provide S-L will all files, documents, records and drawings
relating to the Purchased Assets which are in the possession of BCB,
including the maintenance history of the assets and any operating
manuals and instructions.
(d) BCB and S-L shall execute the requisite documentation to effect the
assignment of the Leland lease to S-L in accordance with the terms and
conditions of Section 9.2 of Schedule A.
(e) BCB and S-L shall execute the requisite documentation to effect the
assignment of the Ball License Agreement in accordance with the terms
and conditions of Section 2.1.6 of Schedule A.
(f) Each of Cott and S-L shall deliver such other consents and approvals
as are contemplated by Schedule A or as are otherwise necessary in
order to enable S-L to carry out the intent of this Agreement and the
Supply Agreement.
(g) Cott shall deliver a certificate stating that BCB is not a "foreign
person" within the meaning of Section 1445 of the Internal Revenue
Code, such certificate being in the form set forth in the Treasury
Regulations thereunder.
(h) Cott shall deliver an acknowledgement in favour of S-L from BCB's
direct and indirect parent corporations (i.e. Cott USA Corp. and Cott
Holdings Inc.) that none of them shall permit the business of BCB to
be sold unless the obligations of BCB under the Memorandum, this
Agreement, the Supply Agreement and any other agreements contemplated
hereby or by any of such other agreements are assigned to and assumed
by the buyer.
(i) S-L shall deliver an acknowledgement in favor of BCB and Cott from
S-L's direct and indirect parent corporations that none of them shall
permit the business of S-L to be sold unless the obligations of S-L
under the Memorandum, this Agreement, the Supply Agreement and any
other agreements contemplated hereby or by any of such other
agreements are assigned to and assumed by the buyer.
(j) S-L shall deliver a written commitment to Cott to share S-L initiated
non-proprietary product improvements, such as improved barrier, design
innovations, etc., as contemplated by Section 11.0 of Schedule A.
(k) S-L shall deliver resale (tax exemption) certificates relating to the
sale of inventories for Texas, North Carolina and Florida.
7. FACILITY USE.
(a) LELAND, NORTH CAROLINA - Use of the Leland facility will be in
accordance with Section 9.0 of Schedule A, and the terms and
conditions of the lease of the Leland facility.
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(b) SAN ANTONIO, TAMPA AND WILSON - Use of these facilities will be in
accordance with Section 16.0 of Schedule A. In particular, BCB agrees
to provide S-L with such reasonable access to these facilities as is
required in order to carry out S-L's obligations under the Supply
Agreement and S-L shall not do anything or refrain from taking any
action that would cause BCB to be in breach of the terms of the leases
of either the Wilson or Tampa facility, or the
acknowledgements/consents delivered by the landlords of such
facilities in connection with the use by S-L thereof. In addition, S-L
shall:
(i) obtain Cott's written approval prior to making any changes to the
configuration of any of the equipment or the portion of any of
the facilities that is occupied by S-L that would affect the
filling operations conducted in such facilities by Cott; and
(ii) provide reasonable advance written notice to Cott's plant manager
that representatives of any customers of S-L will be attending at
any of such facilities at the request or invitation of S-L and
S-L agrees not to disclose any information to any of its
customers that would reasonably be considered confidential or
proprietary to Cott.
8. OPTION TO PURCHASE.
In the event of the early termination or expiration of the Supply
Agreement, BCB has the option to purchase the assets in accordance with Section
2.1.8 of Schedule A. Such option shall be exercisable by BCB by delivery of a
written notice to S-L:
(a) not later than seven (7) days following the end of the Term; or
(b) if this Agreement is terminated prior to the end of the Term, not
later than sixty (60) days following the date of termination.
If BCB elects not to purchase some or all of the assets, BCB agrees to provide
S-L a reasonable period of time to remove and relocate the assets.
9. HIRING OF EMPLOYEES.
(a) S-L agrees to use its best efforts to hire certain of BCB's employees
as set forth in Section 2.1.9 of Schedule A, all subject to the other
relevant terms and conditions of Schedule A.
(b) BCB agrees to provide S-L will all relevant files and data regarding
such employees and agrees to fully cooperate with S-L to the extent
S-L must indemnify, defend and save harmless BCB pursuant to the last
paragraph of Section 2.1.9 of Schedule A.
10. BULK SALES LAW.
In connection with the transactions contemplated hereby, S-L waives
compliance with the provisions of any applicable bulk sales law provided that
BCB and CC agree to
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indemnify , defend and save harmless S-L from any liability incurred as a result
of the failure to so comply.
11. SALES AND USE TAX.
All sales (including, without limitation, bulk sales) use, value added,
documentary, stamp, gross receipts, registrations, transfer, conveyance, excise,
recording, and other similar taxes and fees arising out of or in connection with
or attributable to the transactions effected pursuant to this Agreement shall be
borne by S-L.
12. MISCELLANEOUS.
(a) This Agreement made between S-L and Cott shall be binding upon and
shall inure to the benefit of the successors and assigns of the
parties hereto, but, other than in connection with a sale of the
business of any of such parties to any person other than a competitor
of the other party, neither Cott nor S-L shall assign any right or
interest in this Agreement or delegate any obligation under this
Agreement without prior written consent of the other party, which
consent may be arbitrarily or unreasonably withheld by such party in
its sole and unfettered discretion. Any attempted assignment or
delegation, other than in connection with a sale of the business of
any of any of such parties to any person other than a competitor of
the other party, without permission shall be wholly void and
ineffective for all purposes.
(b) This Agreement, including the Memorandum, Schedule A, and the Supply
Agreement of even date herewith represent the entire Agreement among
S-L, BCB and CC. The terms and conditions of this Agreement, including
the Memorandum, Schedule A, and the Supply Agreement of even date
herewith, supersede and are in lieu of any and all other prior
agreements and understandings or representations between the parties.
If there is any express conflict between the terms of this Agreement
and the terms of the Memorandum or Schedule A, the terms of this
Agreement shall govern. Notwithstanding the foregoing, any
confidentiality agreements previously entered into between the parties
shall survive in accordance with their respective terms.
(c) No changes in or additions to this Agreement shall be made or be
binding on any party unless made in writing and signed by each party
to this Agreement.
(d) The invalidity or unenforceability of any particular provision of this
Agreement shall not affect the other provisions of this Agreement, and
this Agreement shall be construed in all respects as if such invalid
or unenforceable provision were omitted.
(e) Captions are utilized herein only as a matter of convenience and
reference, and in no way define, limit or describe the scope of this
Agreement or the intent of any provision thereof.
(f) This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without regard to its conflicts of
laws provisions. Each
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of the parties hereby attorns to the non-exclusive jurisdiction of the
courts of the State of Michigan.
(g) Each of the parties hereto will pay and discharge its own expenses and
fees in connection with the negotiations of and entry into this
Agreement and the consummation of the transactions contemplated
hereby.
(h) All notices, request, demands, consents and communications necessary
or required under this Agreement shall be made in the manner specified
in Section 18.1 of the Supply Agreement.
(i) This Agreement may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which
when so executed and delivered shall be an original, but all of which
together shall constitute one and the same instrument, and it shall
not be necessary in making proof of this Agreement to produce or
account for more than one such counterpart.
(j) Unless otherwise expressly indicated, all dollar amounts in this
Agreement refer to lawful currency of the United States.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
SCHMALBACH-LUBECA PLASTIC CONTAINERS USA, INC.
By: /S/ James M. McElyea
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Name: James M. McElyea
Title: VP, General Counsel and Secretary
BCB USA CORP.
By: /S/ Mark Halperin
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Name: Mark Halperin
Title: SVP and Secretary
COTT CORPORATION
By: /S/ Mark Halperin
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Name: Mark Halperin
Title: SVP, General Counsel and Secretary
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SCHEDULE 3(b)
PREFORM PRICE
Made with Cott Resin @ $ O [CONFIDENTIAL TREATMENT REQUESTED]
3L O [CONFIDENTIAL TREATMENT REQUESTED]
2L O [CONFIDENTIAL TREATMENT REQUESTED]
2L O [CONFIDENTIAL TREATMENT REQUESTED]
1L O [CONFIDENTIAL TREATMENT REQUESTED]
Made with S-L Resin
All sizes $ O [CONFIDENTIAL TREATMENT REQUESTED]
Any S-L Resin = O [CONFIDENTIAL TREATMENT REQUESTED]
Any Cott Resin = $ O [CONFIDENTIAL TREATMENT REQUESTED]
Regrind/Reclaim = $ O [CONFIDENTIAL TREATMENT REQUESTED]
Encon Preforms = O [CONFIDENTIAL TREATMENT REQUESTED]
Reusable Packaging $ O [CONFIDENTIAL TREATMENT REQUESTED]
GAYLORDS AND LIDS subject to adjustment for quantity and condition
TIER SHEETS evaluated jointly
WOOD PALLETS
TOP FRAMES
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EXHIBIT "C"
Asset Sale from Cott Beverages USA to Schmalbach-Lubeca
ACCUM. NET
ORIGINAL DEPREC. BOOK
LOCATION DESCRIPTION COST MAR-00 VALUE
Leland, NC Injection Molding Assets 7,503,095.05 1,256,417.21 6,246,677.84
Leland, NC Leasehold improvements 187,910.54 75,823.55 112,086.99
Leland, NC Furniture 47,508.36 25,653.59 19,854.77
San Antonio TX Blow Molding Assets 2,855,544.70 237,987.77 2,617,556.93
Tampa, FL Blow Molding Assets 3,518,529.56 482,244.27 3,036,285.29
Wilson, NC Blow Molding Assets 2,688,664.79 430,397.85 2,258,266.94
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TOTAL 16,799,253.00 2,508,524.24 14,290,728.76
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