PURCHASE AGREEMENT
PURCHASE AGREEMENT, dated as of September 13, 1996 (the
"Agreement"), by and among BG Holdings I, Inc., a Delaware corporation
("BGHI"), BG Holdings II, Inc., a Delaware corporation ("BGHII"),
Saint-Gobain Holdings I Corp., a Delaware corporation ("Purchaser"),
Saint-Gobain Corporation, a Pennsylvania corporation ("SGC"), and
Ball-Foster Glass Container Co., L.L.C. (formerly Foster-Ball, L.L.C.), a
limited liability company organized under the laws of the State of Delaware
(the "Company"). BGHI and BGHII are collectively referred to herein as
"Sellers"; the Company, SGC and Purchaser are collectively referred to
herein as the "Purchaser Entities." Capitalized terms not otherwise defined
herein are used as defined in the LLC Agreement (as defined below).
WHEREAS, Sellers and Purchaser are parties to that certain Amended
and Restated Limited Liability Company Agreement, dated as of June 26, 1995
(as amended to date, the "LLC Agreement"), pursuant to which Sellers and
Purchaser have associated themselves as members of the Company; and
WHEREAS, Sellers are the record and beneficial owners of Interests
in the Company and Sellers desire to sell and Purchaser desires to purchase
all of Sellers' Interests (the "Seller Interests") in the Company
(collectively representing a 42% Ordinary Interest in the Company) on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements
contained herein, the parties hereto agree as follows:
1. Purchase and Sale of Seller Interests. Subject to the terms and
conditions of this Agreement, and in reliance upon the representations,
warranties and covenants contained herein, at the Closing described in
Section 2 hereof, Sellers will sell, assign, transfer and convey to
Purchaser, and Purchaser will purchase from Sellers, all of the Seller
Interests, free and clear of all liens, claims or encumbrances of whatever
nature (collectively, "Liens"). In consideration of the aforesaid sale,
Purchaser will pay to Sellers at the Closing the aggregate of $190 million
in cash (the "Purchase Price"), $95 million of which shall be paid to BGHI
and $95 million of which shall be paid to BGHII. In the event that the
Purchase Price is not paid to Sellers prior to October 15, 1996 and the
conditions to Closing set forth in Section 7(a) and 7(c) have been
satisfied or waived, from and after the later of October 15, 1996 or the
date all such conditions have been satisfied or waived, Purchaser shall pay
to Sellers interest on the full amount of the Purchase Price at a rate per
annum equal to the then prime rate as published by Citibank N.A. until such
time as the Purchase Price and all interest accrued thereon is paid in
full.
2. Closing. The Closing shall be held at the office of Skadden,
Arps, Slate, Meagher & Flom, 333 West Wacker Drive, Chicago, Illinois
60606 as soon as practicable (but in no event more than five business days)
after satisfaction or waiver of the conditions to Closing set forth in
Section 7 hereof at 10:00 A.M., local time, or at such other time and place
as may be agreed to by the parties hereto.
3. Deliveries at the Closing. At the Closing, (a) Sellers will
deliver to Purchaser (i) such documents, if any, that are necessary to vest
in Purchaser good and valid title to the Seller Interests and (ii)
resignations of each of the Seller's Representatives from the Members
Committee, effective as of the Closing; and (b) Purchaser will deliver the
Purchase Price by wire transfer of immediately available funds to an
account or accounts designated by Sellers.
4. Sellers' Representations and Warranties. Each Seller hereby
represents and warrants to Purchaser as follows:
(a) Each Seller is a corporation, duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation. Each Seller has the full corporate power and authority to
execute, deliver and carry out the terms and provisions of this Agreement
and consummate the transactions contemplated hereby, and has taken all
necessary corporate and stockholder action to authorize the execution,
delivery and performance of this Agreement;
(b) This Agreement has been duly and validly executed and
delivered by each Seller and constitutes a valid and binding obligation of
each Seller, enforceable against each Seller in accordance with its terms,
subject to applicable principles of equity, bankruptcy, reorganization,
insolvency or other laws affecting the enforcement of creditors' rights
generally;
(c) Each Seller is the sole record and beneficial owner of the
Seller Interests owned by it (each representing a twenty-one percent (21%)
Ordinary Interest in the Company) and has good and valid title to such
Seller Interests, free and clear of all Liens and any other limitation or
restriction on the right to vote, sell or otherwise dispose of such Seller
Interests (except as provided in the LLC Agreement or required by
applicable law) and will transfer and deliver to Purchaser at the Closing
valid title to such Seller Interests, free and clear of any Lien and any
such other limitation or restriction (except as provided in the LLC
Agreement or required by applicable law);
(d) Neither Seller owns any Preferred Interest and there is no
balance in either Seller's Preferred Interest Account;
(e) The execution and delivery of this Agreement by each
Seller does not, and the performance by each Seller of its obligations
hereunder will not, constitute a violation of, conflict with or result in a
default under, (i) the certificate of incorporation or by-laws, or the
other constituent documents, as the case may be, of such Seller, (ii) any
contract, commitment, agreement, understanding, arrangement or
restriction of any kind to which such Seller is a party or by which such
Seller is bound, or any license, franchise, permit or similar authorization
held by such Seller or (iii) any judgment, injunction, decree or order
applicable to such Seller, except for such violations, conflicts or
defaults which do not have a material adverse effect on Sellers' ability to
consummate the transactions contemplated hereby, nor is any Seller required
to obtain the approval of any person (except for any such approval the
failure of which to obtain would not have a material adverse effect on
Sellers' ability to consummate the transactions contemplated hereby) to
effect the sale of the Seller Interests as contemplated hereby;
(f) Except as would not have a material adverse effect on
Sellers' ability to consummate the transactions contemplated hereby,
neither the execution and delivery of this Agreement nor the performance by
any Seller of its obligations hereunder will violate any law, rule or
regulation applicable to such Seller or require any consent or approval of,
other action by or filing with or notice to, any public body or authority
under any provision of law applicable to such Seller other than notices or
filings pursuant to the federal securities laws or the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the "HSR Act"); and
(g) There is no action, suit, investigation or proceeding
pending against, or to the knowledge of either Seller threatened against or
affecting, either Seller or any of their respective properties before any
court or arbitrator or any governmental body, agency or official which in
any manner challenges or seeks to prevent, enjoin, alter or materially
delay the transactions contemplated by this Agreement.
5. Purchaser's Representations and Warranties. Each Purchaser
Entity hereby represents and warrants to Sellers as follows:
(a) Each Purchaser Entity is a corporation or a limited
liability company, duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or formation. Each
Purchaser Entity has the full power and authority to execute, deliver and
carry out the terms and provisions of this Agreement and consummate the
transactions contemplated hereby, and has taken all necessary action to
authorize the execution, delivery and performance of this Agreement;
(b) This Agreement has been duly and validly authorized,
executed and delivered by each Purchaser Entity and constitutes a valid and
binding agreement of such Purchaser Entity, enforceable in accordance with
its terms, subject to applicable principles of equity, bankruptcy,
reorganization, insolvency or other laws affecting the enforcement of
creditors' rights generally;
(c) The execution and delivery of this Agreement by each
Purchaser Entity does not, and the performance by such Purchaser Entity of
its obligations hereunder will not, constitute a violation of, conflict
with or result in a default under, (i) the certificate of incorporation or
by-laws, or the other constituent documents, as the case may be, of such
Purchaser Entity, (ii) any contract, commitment, agreement, understanding,
arrangement or restriction of any kind to which such Purchaser Entity is a
party or by which such Purchaser Entity is bound or any license, franchise,
permit or similar authorization held by such Purchaser Entity, or (iii) any
judgment, injunction, decree or order applicable to such Purchaser Entity,
except for such violations, conflicts or defaults which do not have a
material adverse effect on Purchaser's ability to consummate the
transactions contemplated hereby, nor is such Purchaser Entity required to
obtain the approval of any person (except for any such approval the failure
of which to obtain would not have a material adverse effect on Purchaser's
ability to consummate the transactions contemplated hereby) to effect the
purchase of the Seller Interests as contemplated hereby;
(d) Except as would not have a material adverse effect on
Purchaser's ability to consummate the transactions contemplated hereby,
neither the execution and delivery of this Agreement nor the performance by
any Purchaser Entity of its obligations hereunder will violate any law,
rule or regulation applicable to such Purchaser Entity or require any
consent or approval of, other action by or filing with or notice to, any
public body or authority under any provision of law applicable to such
Purchaser Entity other than notices or filings pursuant to the federal
securities laws or the HSR Act; and
(e) There is no action, suit, investigation or proceeding
pending against, or to the knowledge of any Purchaser Entity threatened
against or affecting, any Purchaser Entity before any court or arbitrator
or any governmental body, agency or official which in any manner challenges
or seeks to prevent, enjoin, alter or materially delay the transactions
contemplated by this Agreement.
6. Certain Other Agreements.
(a) Termination of Liability.
(i) Upon the execution of this Agreement, neither Seller
nor any of their affiliates shall have any obligation to the
Company under the LLC Agreement to make any capital contribution
or other payment to the Company (including any capital
contribution that would otherwise be due from Sellers under
Section 3.2(d) of the LLC Agreement as a result of any Net
Adjustment Amount) unless the Closing does not occur and this
Agreement is terminated in accordance with its terms, in which
case Sellers shall be obligated to make any capital contribution
or other payment required to be made by them in accordance with
the terms of the LLC Agreement. Except as otherwise provided in
Section 6(c)(iv)(A) hereof, upon consummation of the Closing,
neither Seller nor any of their respective affiliates shall have
any liability or obligation of any kind or nature to the Company
or its Members under the LLC Agreement and, effective as of the
Closing, except as otherwise provided in Section 6(c)(iv)(A)
hereof, each of SGC, SGH and the Company hereby releases and
forever discharges each Seller and their respective affiliates
from all of their liabilities and obligations under the LLC
Agreement.
(ii) Except as otherwise provided in Sections 6(b) and
6(c)(iv)(B) and (C) hereof, upon consummation of the Closing,
neither the Company nor Purchaser shall have any liability or
obligation of any kind or nature to either Seller or any of their
respective affiliates under the LLC Agreement (including, but
not limited to, any obligation to make any distribution or other
payment to either Seller pursuant to Article 5 of the LLC
Agreement) and, except as otherwise provided in Sections 6(b) and
6(c)(iv)(B) and (C) hereof, each Seller hereby releases and
forever discharges Purchaser, the Company and their respective
affiliates from all of their liabilities and obligations under the
LLC Agreement.
(b) Certain Tax Matters. The Sellers' distributive
share of the Company's income or loss for the taxable year in which the
Closing takes place shall be determined based on a closing of the Company's
books as of the close of business on the last business day prior to the
Closing. Notwithstanding the sale of the Sellers Interests to Purchaser,
Sellers will receive all distributions pursuant to Section 5.1(a) of the LLC
Agreement in respect of any taxes incurred or to be incurred by Sellers or
their affiliates as a result of Sellers' ownership of interests in the Company
through the Closing and without regard to the limitations set forth in the
penultimate sentence of Section 5.1(a) of the LLC Agreement. At the Closing,
the Company will pay to Sellers in cash by wire transfer of immediately
available funds the amount of $8,377,018, representing all distributions with
respect to taxes which have not been paid as of the Closing and are required
to be paid pursuant to Section 5.1(a) of the LLC Agreement on or before the
Closing without regard to the limitations set forth in the penultimate
sentence of such Section 5.1(a). No Purchaser Entity shall have any
responsibility with respect to any federal, state or local tax of the Sellers
arising as a result of the Sale by Sellers of their Seller's Interest to
Purchaser.
(c) LLC Agreement.
(i) The parties hereto agree that notwithstanding the
provisions of Sections 10.1(a) and 15.5 of the LLC Agreement or
any other section of the LLC Agreement, the purchase and sale of
the Seller Interests pursuant to this Agreement, which are not
being consummated pursuant to the provisions of Article 10 or
Article 11 of the LLC Agreement, are expressly permitted.
(ii) The parties hereto (A) acknowledge that Purchaser is
currently a Member and therefore need not be admitted as a Member
in connection with its purchase of the Seller Interests and (B)
agree that the provisions of Section 10.10(c) of the LLC Agreement
shall not apply to the purchase and sale of the Seller Interests
pursuant to this Agreement, that the purchase by Purchaser of the
Seller Interests will be valid without compliance with the
provisions of Section 10.10 and that Purchaser will succeed to the
rights and obligations of Sellers but not Ball Parent under the
Transaction Documents.
(iii) Each Seller acknowledges that upon consummation of
the Closing, such Seller shall have assigned all of its Seller
Interests to Purchaser and, in accordance with Section 18-702 of
the Delaware Limited Liability Company Act, 6 Del. C. ss.ss.
18-101 et seq. and Section 10.10 of the LLC Agreement, such Seller
shall cease to be a Member, to have any obligations or liabili-
ties of a Member or to have the power to exercise any rights or
powers of a Member except as provided in Section 6(c)(iv) below.
(iv) The parties hereto acknowledge that (A) the
provisions of Section 9.1 of the LLC Agreement shall continue to
be applicable to Sellers for a period of three years after the
Closing in accordance with the terms thereof, (B) Sellers and any
Indemnified Parties related to Sellers shall continue to be
entitled to the benefits of Article 14 of the LLC Agreement (and
specifically shall be indemnified and held harmless from and
against any losses, claims, damages or expenses relating to the
proposed acquisition by the Company of Anchor Glass Container
Corporation, regardless of whether arising before or after the
Closing) and (C) Sellers shall continue to be entitled to the
benefits of Article 7 of the LLC Agreement with respect to periods
during which Sellers were Members of the Company.
7. Conditions to Closing.
(a) The obligations of each party to consummate the Closing
are subject to the conditions that (i) any applicable waiting period under
the HSR Act relating to the transactions contemplated hereby shall have
expired or been terminated and (ii) no provision of any applicable law or
regulation shall prohibit, and no judgment, injunction, order or decree
shall have been entered that prohibits, the consummation of the Closing.
(b) The obligations of Sellers to consummate the Closing are
subject to the conditions that (i) Purchaser shall have performed in all
material respects all of its obligations hereunder required to be performed
by it, (ii) the representations and warranties of Purchaser contained in
this Agreement shall be true and correct as of the Closing as if made as of
such date and (iii) the Company shall have paid all amounts payable
pursuant to that certain letter agreement among the Company, Ball Glass
Container Corporation and Ball Parent of even date herewith (the "Letter
Agreement").
(c) The obligations of Purchaser to consummate the Closing are
subject to the conditions that (i) Sellers shall have performed in all
material respects all of their obligations hereunder required to be
performed by them and (ii) the representations and warranties of Sellers
contained in this Agreement shall be true and correct as of the Closing as
if made as of such date.
8. Termination.
(a) This Agreement may be terminated prior to the Closing (i)
by the mutual written agreement of Purchaser and Sellers, (ii) by either
Purchaser or Sellers, if the Closing shall not have been consummated on or
before December 31, 1996 and the terminating party has not breached any
provisions of this Agreement or (ii) by Purchaser or either Seller if there
shall be any applicable law or regulation that makes consummation of the
transactions contemplated hereby illegal or otherwise prohibited or if
consummation of the transactions contemplated hereby would violate any
nonappealable final order, decree or judgment of any court or governmental
body having competent jurisdiction. The party desiring to terminate this
Agreement shall give notice of such termination to the other parties.
(b) If this Agreement is terminated as permitted by Section
8(a), termination shall be without liability of any party (or any
stockholder, director, officer, employee, agent, consultant or
representative of such party) to the other parties to this Agreement;
provided that if such termination shall result from the failure of any
party to fulfill a condition to the performance of the obligations of the
other parties, failure to perform a covenant of this Agreement or breach by
any party hereto of any representation or warranty or agreements contained
herein, such party shall be fully liable for any and all damages incurred
or suffered by the other parties as a result of such failure or breach. The
provisions of Section 10 shall survive any termination hereof pursuant to
Section 8(a).
9. Public Announcements. The parties agree to consult with each
other before issuing any press release or making any public statement with
respect to this Agreement or the consummation of the transactions
contemplated hereby and, except as may be required by applicable law or the
applicable requirements of any national securities exchange, will not issue
any such press release or make any such public statement without the prior
written consent of the other parties hereto, which consent shall not be
unreasonably withheld or delayed.
10. Expenses. All fees and expenses incurred by the Sellers in
connection with this Agreement, including, but not limited to, brokerage
fees, finder's fees, investment banking fees or legal fees, will be borne
by the Sellers, and all fees and expenses incurred by the Purchaser
Entities in connection with this Agreement, including, but not limited to,
brokerage fees, finder's fees, investment banking fees or legal fees in
connection with this Agreement, will be borne by Purchaser Entities.
11. Miscellaneous.
(a) This Agreement, the Letter Agreement and the letter
agreement among the Company, Purchaser and Ball Parent of even date
herewith (the "Lease Letter") constitute the entire agreement of the
parties hereto and supersede all prior agreements and understandings,
whether oral or written, between the parties hereto with respect to the
subject matter hereof. To the extent the following agreements are not
inconsistent with the agreements referred to in the immediately preceding
sentence, the rights and obligations of the parties under the following
agreements shall remain in full force and effect in the form executed by
the parties and as amended to the date hereof: the Ball Purchase Agreement,
the Parent Sideletters (subject to the provisions of the Lease Letter), the
Macedonia Facilities Lease, effective as of September 16, 1995 between Ball
Parent and the Company, the Trademark and Tradename Agreement, dated
September 15, 1995, between Ball Parent and the Company, the Transition
Services Agreement, dated September 15, 1995, between Ball Parent and the
Company and the Transition Services Agreement, dated September 15, 1995,
between SGC and Ball Parent. This Agreement may not be amended orally, but
only by an instrument in writing signed by each of the parties to this
Agreement.
(b) Subject to the terms and conditions of this Agreement, the
parties hereto will use their reasonable best efforts to take, or cause to
be taken, all actions and to do, or cause to be done, all things necessary
or desirable under applicable law and regulations (including, if required
to be filed by such party, the filing by Purchaser and Sellers of a
Notification and Report Form pursuant to the HSR Act with respect to the
transactions contemplated hereby and promptly providing any additional
information that may be requested thereunder) to consummate the
transactions contemplated hereby.
(c) This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and
assigns, including any successor to Purchaser or either Seller or
substantially all of their assets or business, by merger, consolidation,
purchase of assets, purchase of stock or otherwise; provided that no party
may assign, delegate or otherwise transfer any of its rights or obligations
under this Agreement without the consent of each other party hereto except
that Purchaser may assign its rights and obligations hereunder to another
direct or indirect wholly-owned subsidiary of SGC, but such assignment will
not release Purchaser of its obligations hereunder.
(d) Section headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation
of this Agreement.
(e) This Agreement may be executed in any number of
counterparts, each of which shall, when executed, be deemed to be an
original and all of which shall be deemed to be one and the same
instrument.
(f) This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware, without
reference to the conflict of laws principles thereof.
(g) The parties hereby agree that any suit, claim, action or
proceeding relating to or arising under this Agreement shall be brought in
a state court of Delaware (a "Delaware Court"). Each party hereby consents
to personal jurisdiction in any such action brought in any such Delaware
Court, consents to service of process upon it in the manner set forth in
Section 11(h) hereof, and waives any objection it may have to venue in any
such Delaware Court or to any claim that any such Delaware Court is an
inconvenient forum.
(h) All notices and other communications under this Agreement
shall be in writing and delivery thereof shall be deemed to have been made
either (i) if mailed, when received, or (ii) when transmitted by hand
delivery, telegram, telex, telecopier or facsimile transmission, to the
party entitled to receive the same at the addresses indicated below or at
such other address as such party shall have specified by written notice to
the other parties hereto given in accordance herewith:
(1) if to Sellers, addressed to:
BG Holdings I, Inc.
BG Holdings II, Inc.
c/o Ball Packaging Corp.
9300 W. 108th Circle
Westminister, Colorado 80021-3682
Attention: David B. Sheldon, President
(with copies to:)
Skadden, Arps, Slate,
Meagher & Flom
333 West Wacker Drive
Suite 2100
Chicago, Illinois 60606
Attention: Charles W. Mulaney, Jr.
(2) if to Purchaser, addressed to:
Saint-Gobain Holdings I Corp.
c/o Thomas A. Decker
Saint-Gobain Corporation
750 N. Swedesford Road
P.O. Box 860
Valley Forge, PA 19482-7087
Fax: 610-341-7728
(with copies to:)
Saint-Gobain Corporation
750 N. Swedesford Road
P.O. Box 860
Valley Forge, PA 19482-7087
Attention: Thomas A. Decker
Fax: 610-341-7728
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Attention: William L. Rosoff
Fax: (212) 450-4800
(i) Any waiver by any party of a breach of any provision of
this Agreement shall not operate as, or be construed to be a waiver of, any
other breach of such provision or of any breach of any other provision of
this Agreement.
(j) No provision in this Agreement shall constitute any person
a third party beneficiary hereof.
(k) If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction or other authority
to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or
invalidated.
(l) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
(m) SGC hereby guaranties the payment in full of the
obligations of Purchaser hereunder in accordance with the terms hereof.
IN WITNESS WHEREOF, each of the parties hereto has executed or
caused this Agreement to be executed as of the date first above written.
BG HOLDINGS I, INC.
By: /s/ David B. Sheldon
__________________________________
Name: David B. Sheldon
Title: President
BG HOLDINGS II, INC.
By: /s/ David B. Sheldon
__________________________________
Name: David B. Sheldon
Title: President
SAINT-GOBAIN HOLDINGS I CORP.
By: /s/ Thomas A. Decker
_________________________________
Name: Thomas A. Decker
Title: Vice-President
BALL-FOSTER GLASS CONTAINER CO., L.L.C.
By: /s/ Marcello Marazzini
_________________________________
Name: Marcello Marazzini
Title: Senior Vice-President and
Chief Financial Officer
SAINT-GOBAIN CORPORATION
By: /s/ Thomas A. Decker
_________________________________
Name: Thomas A. Decker
Title: Executive Vice-President and
General Counsel