-----BEGIN PRIVACY-ENHANCED MESSAGE-----
Proc-Type: 2001,MIC-CLEAR
Originator-Name: webmaster@www.sec.gov
Originator-Key-Asymmetric:
MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen
TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB
MIC-Info: RSA-MD5,RSA,
FuYh3zSMMrnPG0ZKfm6sJsJ1NnV33xMQu7uU1z2T/paWX8k2AJDn/U60/ILupidU
xXOvM3JY1g3a/TvRY/LOEg==
<SEC-DOCUMENT>0000912057-01-008064.txt : 20010326
<SEC-HEADER>0000912057-01-008064.hdr.sgml : 20010326
ACCESSION NUMBER: 0000912057-01-008064
CONFORMED SUBMISSION TYPE: 10-K405
PUBLIC DOCUMENT COUNT: 11
CONFORMED PERIOD OF REPORT: 20001231
FILED AS OF DATE: 20010323
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: SEALED AIR CORP/DE
CENTRAL INDEX KEY: 0001012100
STANDARD INDUSTRIAL CLASSIFICATION: UNSUPPORTED PLASTICS FILM & SHEET [3081]
IRS NUMBER: 650654331
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: 10-K405
SEC ACT:
SEC FILE NUMBER: 001-12139
FILM NUMBER: 1578061
BUSINESS ADDRESS:
STREET 1: PARK 80 EAST
CITY: SADDLE BROOK
STATE: NJ
ZIP: 07663-5291
BUSINESS PHONE: 2017917600
MAIL ADDRESS:
STREET 1: PARK 80 EAST
CITY: SADDLE BROOK
STATE: NJ
ZIP: 07663-5291
FORMER COMPANY:
FORMER CONFORMED NAME: WR GRACE & CO/DE
DATE OF NAME CHANGE: 19961015
FORMER COMPANY:
FORMER CONFORMED NAME: GRACE HOLDING INC
DATE OF NAME CHANGE: 19960805
</SEC-HEADER>
<DOCUMENT>
<TYPE>10-K405
<SEQUENCE>1
<FILENAME>a2040779z10-k405.txt
<DESCRIPTION>10-K405
<TEXT>
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM 10-K
(MARK ONE)
<TABLE>
<C> <S>
/X/ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
</TABLE>
FOR THE FISCAL YEAR ENDED DECEMBER 31, 2000
OR
<TABLE>
<C> <S>
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
</TABLE>
FOR THE TRANSITION PERIOD FROM ______________ TO ______________
COMMISSION FILE NUMBER 1-12139
------------------------
SEALED AIR CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 65-0654331
(State or other jurisdiction (I.R.S. Employer Identification Number)
of incorporation or organization)
PARK 80 EAST, SADDLE BROOK, NEW JERSEY 07663-5291
(Address of principal executive offices) (Zip code)
</TABLE>
Registrant's telephone number, including area code: (201) 791-7600
------------------------
Securities registered pursuant to Section 12(b) of the Act:
<TABLE>
<S> <C>
TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH REGISTERED
- --------------------------------------------- ---------------------------------------------
Common Stock, par value $0.10 per share New York Stock Exchange, Inc.
Series A Convertible Preferred Stock, par New York Stock Exchange, Inc.
value $0.10 per share
</TABLE>
------------------------
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes /X/ No / /
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. /X/
The aggregate market value of the registrant's Common Stock held by
non-affiliates of the registrant on March 21, 2001 was approximately
$2,900,000,000.
The number of outstanding shares of the registrant's Common Stock as of
March 21, 2001 was 83,625,503.
DOCUMENTS INCORPORATED BY REFERENCE: Portions of the registrant's 2000
Annual Report to Stockholders are incorporated by reference into Parts I and II
of this Form 10-K. Portions of the registrant's definitive proxy statement for
its 2001 Annual Meeting of Stockholders are incorporated by reference into
Part III of this Form 10-K.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART I
ITEM 1. BUSINESS
Sealed Air Corporation (the "Company"), operating through its subsidiaries,
is engaged in the manufacture and sale of a wide range of food, protective and
specialty packaging products.
The Company conducts substantially all of its business through two direct
wholly owned subsidiaries, Cryovac, Inc. and Sealed Air Corporation (US). These
two subsidiaries directly and indirectly own substantially all of the assets of
the business and conduct operations themselves and through subsidiaries around
the globe. References herein to the Company include, collectively, the Company
and its subsidiaries, except where the context indicates otherwise.
SEGMENTS
The Company operates in two reportable business segments: (i) food packaging
products and (ii) protective and specialty packaging products, described more
fully below. Information concerning the Company's reportable segments appears in
Note 3 of the Notes to Consolidated Financial Statements in Item 8 of this
Annual Report on Form 10-K, which information is incorporated herein by
reference.
FOOD PACKAGING PRODUCTS
The Company's principal food packaging products are its flexible materials
and related systems marketed primarily under the Cryovac-Registered Trademark-
brand for a broad range of perishable food applications. This segment also
includes the Company's rigid packaging and absorbent pads (foam and solid
plastic trays and containers for the packaging of a wide variety of food
products and absorbent pads used for the packaging of meat, fish and poultry).
The products in this segment are primarily sold to food processors, distributors
and food service businesses.
FLEXIBLE MATERIALS AND RELATED SYSTEMS
The Company produces a variety of high-performance proprietary flexible
films, bags and associated packaging equipment marketed and sold primarily under
the Cryovac-Registered Trademark- brand that are used to package a broad range
of perishable foods such as fresh meat, smoked and processed meat, cheese,
poultry, processed and prepared foods (including soups and sauces for
restaurants and institutions) and produce.
Cryovac-Registered Trademark- food packaging products include shrink bags,
shrink films and laminated films sold for food packaging applications. Shrink
bags and films are co-extruded, multi-layered, shrinkable plastic bags and films
that, when exposed to heat, mold themselves to the shape of the product.
Laminated films are multi-layered, non-shrinkable plastic materials used to
package perishable foods and shelf-stable products such as syrups and toppings.
Films and bags are sold in barrier and permeable forms, depending on the extent
to which it is desirable that oxygen or other gases pass through the material.
For fresh-cut produce, the Company produces films that permit gases to pass
through at various rates, thereby matching the varying respiration rates of
different vegetables and permitting longer shelf life.
The Company's food packaging equipment offerings include (i) dispensing and
loading units to package foods in shrink, vacuum or vacuum skin packages, which
can utilize the Company's films and bags; (ii) form-fill-seal units to package
foods in pouches, which can be made using the Company's films; (iii) shrink
tunnels; (iv) bagging systems; and (v) auxiliary equipment. Systems are marketed
to the food processing industry under the Cryovac-Registered Trademark-
trademark and other trademarks.
RIGID PACKAGING AND ABSORBENT PADS
The Company manufactures and sells polystyrene foam and solid plastic trays
and containers that are used for the packaging of a wide variety of food
products. Supermarkets and food processors use these products to protect and
display fresh meat, poultry, produce and other food products. The Company also
manufactures and sells absorbent pads used for food packaging, including its
Dri-Loc-Registered Trademark-
<PAGE>
absorbent pads. The Company's trays and pads are often used together. The
Company's case ready packaging customers, principally meat and poultry
processors, purchase trays, pads and specially designed films and packaging
equipment to centrally package meat and poultry products prior to shipment to
the supermarket. Case ready packages are virtually ready for the meat case upon
arrival at the retail store. During 2000, the Company purchased Dolphin
Packaging plc ("Dolphin") to support the Company's case ready packaging business
in Europe. In addition to foam and solid plastic trays, Dolphin manufactures and
sells containers for customers in the food service, dairy, fruit and salad
businesses, among others. The Dolphin acquisition was not material to the
Company's consolidated financial statements.
PROTECTIVE AND SPECIALTY PACKAGING PRODUCTS
The Company's protective and specialty packaging products include its
cushioning and surface protection products and certain other products. The
Company's protective and specialty packaging products and systems are primarily
sold to distributors and manufacturers. The products in this segment enable the
end users to provide a high degree of protection in packaging their items, by
means of cushioning or surface protection, or a combination thereof, as well as
void fill. The Company also offers sterilized medical bags and films for use
with medical products.
CUSHIONING AND SURFACE PROTECTION PRODUCTS
The Company manufactures and markets Bubble Wrap-Registered Trademark- and
AirCap-Registered Trademark- air cellular packaging materials, which consist of
air encapsulated between two layers of plastic film, each containing a barrier
layer to retard air loss, that form a pneumatic cushion to protect products from
damage through shock or vibration during shipment. The Company's
Cryovac-Registered Trademark- performance shrink films are sold for non-food
product display and merchandising applications. These films are used to
"shrink-wrap" a wide assortment of industrial and consumer products. The
Company's Instapak-Registered Trademark- polyurethane foam packaging systems
(which consist of proprietary blends of polyurethane chemicals, high performance
polyolefin films and specially designed dispensing equipment) provide protective
packaging for a wide variety of products. CelluPlank-Registered Trademark- plank
foams and Stratocell-Registered Trademark- laminated polyethylene foams are
generally sold by the Company to fabricators and converters. The Company also
manufactures thin polyethylene foams in roll and sheet form under the trademarks
Cell-Aire-Registered Trademark- and Cellu-Cushion-Registered Trademark-.
Korrvu-Registered Trademark- packaging is the Company's suspension and retention
product offering. The Company's insulation products are made with foil-faced air
cellular materials.
The Company manufactures and markets Jiffy-Registered Trademark- protective
mailers and other durable mailers and bags that are made in several standard
sizes and are used for mailing or shipping a wide variety of items. The
Company's protective mailers include lightweight, tear-resistant paper mailers
marketed under various trademarks, including Jiffylite-Registered Trademark- and
Mail Lite-Registered Trademark-, lined with air cellular cushioning material.
These products also include the widely used Jiffy-Registered Trademark- padded
mailers made from recycled kraft paper padded with macerated recycled newspaper.
The Company's durable mailers and bags, made of plastic, are marketed under the
ShurTuff-Registered Trademark-, Trigon-Registered Trademark-, Lab
Pak-Registered Trademark-, Keepsafe-TM- and Tuffgard-Registered Trademark- brand
names. The Company manufactures recycled kraft, tissue and crepe paper for use
as a raw material in the manufacture of the Company's protective mailer and food
packaging products. The Company also manufactures and sells paper packaging
products under the trademarks Kushion Kraft-Registered Trademark-, Custom
Wrap-TM-, Jiffy Packaging-Registered Trademark-, Padwrap-Registered Trademark-
and Void Kraft-TM-. In certain foreign countries, the Company produces
loose-fill polystyrene packaging for sale to customers in those countries.
The Company offers inflatable packaging systems, including its Rapid
Fill-Registered Trademark- system, which consists of a compact, portable
inflator and self-sealing inflatable plastic bags, and its Fill-Air-TM- system,
which converts rolls of polyethylene film into continuous perforated chains of
air-filled cushions. The Company's innovative VistaFlex-Registered Trademark-
inflatable packaging system, which consists of a microprocessor-controlled
inflation system and inflatable cushions, produces air-filled cushions designed
for each
2
<PAGE>
particular packaging application. The Company produces and markets converting
systems that convert certain of the Company's packaging materials, including air
cellular cushioning materials, thin polyethylene foam and paper packaging
materials, into sheets of a pre-selected size and quantity or, for the Company's
recycled kraft paper, into paper dunnage material. The Company also offers
shrink-wrap equipment for use with shrink films. During 2000, the Company
acquired Shanklin Corporation, a leading provider of high-performance shrink
film packaging equipment, which complements the Company's broad line of high
performance shrink-films. The Shanklin acquisition was not material to the
Company's consolidated financial statements.
OTHER PRODUCTS
The Company manufactures and sells a number of non-packaging products,
including specialty adhesive tapes, solar collectors and covers for swimming
pools, recycled kraft, tissue and crepe paper, and certain products related to
the elimination and neutralization of static electricity.
FOREIGN OPERATIONS
The Company operates in the United States and in 45 other countries, and its
products are distributed in those countries as well as in other parts of the
world. In recent years, the Company has extended its protective packaging
operations into countries where the Company previously had established food
packaging operations, including several European, Latin American and
Asia/Pacific countries and South Africa, and has also extended its protective
packaging operations into Israel. In maintaining its foreign operations, the
Company runs the risks inherent in such operations, including those of currency
fluctuations. Information on currency exchange risks is incorporated by
reference in Item 7A of this Annual Report on Form 10-K. Financial information
about geographic areas, including net sales and total long-lived assets, for
each of the years in the three-year period ended December 31, 2000 appears in
Note 3 of the Notes to Consolidated Financial Statements incorporated by
reference in Item 8 of this Annual Report on Form 10-K, which information is
incorporated herein by reference.
MARKETING, DISTRIBUTION AND CUSTOMERS
The Company employs over 1,300 sales and technical support representatives
in the countries in which it operates who market the Company's products through
a large number of distributors, fabricators and converters as well as directly
to end users. In the United States and certain other countries, the Company has
separate sales and marketing groups for many of its product lines. These groups
often work together to develop market opportunities for the Company's products.
To support the Company's food packaging customers, the Company has food
science laboratories in a number of locations that assist customers in
identifying the appropriate food packaging materials and systems to meet their
needs. The Company also offers customized graphic design services to its food
packaging and mailer customers.
To assist its marketing efforts for its protective and specialty packaging
products and to provide specialized customer services, the Company maintains
packaging laboratories in many of its United States and foreign facilities.
These laboratories are staffed by professional packaging engineers and equipped
with drop-testing and other equipment used to develop and test cost-effective
package designs to meet the particular protective and specialty packaging
requirements of each customer.
The Company has no material long-term contracts for the distribution of its
products. In 2000, no customer or affiliated group of customers accounted for as
much as 10% of the Company's consolidated net sales.
3
<PAGE>
Although net sales of both food packaging products and protective and
specialty packaging products tend to be slightly higher in the fourth quarter,
the Company does not consider seasonality to be a material factor to its
consolidated business.
COMPETITION
Competition for most of the Company's packaging products is based primarily
on packaging performance characteristics, service and price. Since competition
is also based upon innovations in packaging technology, the Company's ongoing
research and development programs are intended to enable the Company to maintain
technological leadership. Certain companies producing competing products are
well established and may have greater financial resources than the Company.
There are a number of competing manufacturers of food packaging products,
including companies offering similar products that operate on a global basis, as
well as those that operate in a region or single country. Competing
manufacturers produce a wide variety of food packaging based on plastic, paper,
metals and other materials. The Company believes that it is one of the leading
suppliers of flexible food packaging materials and related systems in the
principal geographic areas in which it offers those products and one of the
leading suppliers of absorbent pads for food products to supermarkets and
poultry processors in the United States.
The Company's protective and specialty packaging products compete with
similar products made by others and with a number of other packaging materials
that are used to provide protection against damage to the packaged product
during its shipment and storage. Competitive materials include various forms of
paper packaging products, expanded plastics, corrugated die cuts, loosefill
packaging materials, strapping, envelopes, reinforced bags, boxes and other
containers and various corrugated materials. Heavy-duty applications of the
Company's Instapak-Registered Trademark- packaging and its plank and laminated
foam products also compete with various types of molded foam plastics,
fabricated foam plastics and mechanical shock mounts and with wood blocking and
bracing systems. The Company believes that it is one of the leading suppliers of
air cellular cushioning materials containing a barrier layer, shrink films for
industrial and commercial applications, protective mailers and polyurethane foam
packaging systems in the geographic areas in which it sells these products.
RAW MATERIALS
The raw materials utilized in the Company's operations generally have been
readily available on the open market and in most cases are available from
several suppliers. Some materials used in the Company's protective packaging
products are reprocessed from scrap generated in the Company's manufacturing
operations or obtained through participation in recycling programs. The
principal raw materials used in the Company's food packaging products include
polyolefin and other resins and films, paper and wood pulp products and blowing
agents used in foam packaging products. The principal raw materials used in the
Company's protective and specialty packaging products include raw materials
similar to those used in its food packaging products, as well as polyurethane
chemicals. The Company also offers a wide variety of specialized packaging
equipment, some of which it manufactures (or has manufactured to its
specifications), some of which it assembles and some of which it purchases from
other suppliers.
PRODUCT DEVELOPMENT
The Company maintains a continuing effort to develop new products and
improvements to its existing products and processes as well as new packaging and
non-packaging applications for its products. From time to time the Company also
acquires promising new packaging designs or techniques developed by others and
commercializes them. In recent years, the Company has instituted ongoing
programs of joint research and development projects combining the technical
capabilities of its food
4
<PAGE>
packaging operations and its protective and specialty packaging operations. The
Company incurred expenses of $54,264,000 related to Company-sponsored research
and development in 2000, compared with $56,452,000 during 1999, and $57,524,000
during 1998.
PATENTS AND LICENSES
The Company is the owner or licensee of a number of United States and
foreign patents and patent applications that relate to certain of its products,
manufacturing processes and equipment. The Company's patents, licenses and
trademarks collectively provide a competitive advantage. No single patent or
license alone, however, provides the Company with such an advantage. Rather, the
Company believes that its success depends primarily on its marketing,
engineering and manufacturing skills and on its ongoing research and development
efforts. The Company believes that the expiration or unenforceability of any of
such patents, applications or licenses would not be material to the Company's
business or financial position.
ENVIRONMENTAL MATTERS
The Company, like other manufacturers, is subject to various laws, rules and
regulations in the countries, jurisdictions and localities in which it operates
regulating the discharge of materials into the environment or otherwise relating
to the protection of the environment. The Company believes that compliance with
current environmental laws and regulations has not had a material effect on the
Company's capital expenditures or financial position.
In some jurisdictions in which the Company's packaging products are sold or
used, laws and regulations have been adopted or proposed that seek to regulate,
among other things, recycled or reprocessed content, sale or disposal of
packaging materials. In addition, customer demand for packaging materials that
are viewed as being "environmentally responsible" and that minimize the
generation of solid waste continues to evolve. While these issues can be a
competitive factor in the marketplace for packaging materials, the Company
maintains active programs designed to comply with these laws and regulations, to
monitor their evolution, and to meet such customer demand.
The Company also supports its customers' interests in eliminating waste by
offering or participating in collection programs for certain of the Company's
products or product packaging and for materials used in certain of the Company's
products, and, when possible, materials collected through these collection
programs are reprocessed and either reused in the Company's protective packaging
operations or offered to other manufacturers for use in other products.
EMPLOYEES
At December 31, 2000, the Company had approximately 17,750 employees
worldwide.
ITEM 2. PROPERTIES
The Company's food packaging products are produced in 46 manufacturing
facilities (14 in North America, 15 in Europe, 5 in Latin America, 11 in the
Asia Pacific region, and 1 in South Africa). Protective and specialty packaging
products are produced in 72 manufacturing facilities (32 in North America, 20 in
Europe, 6 in Latin America, 12 in the Asia Pacific region, and 2 in South
Africa). Several of the Company's manufacturing facilities serve both segments.
Certain of these facilities are for converting operations. The Company occupies
other facilities containing sales, distribution, technical, warehouse or
administrative functions at a number of locations in the United States and in
various foreign countries.
In the United States, the Company's food packaging products are manufactured
at facilities in California, Indiana, Iowa, Missouri, New York, North Carolina,
Pennsylvania, South Carolina and Texas.
5
<PAGE>
Its protective and specialty packaging products are manufactured at facilities
in California, Connecticut, Georgia, Illinois, Indiana, Massachusetts,
Mississippi, New Jersey, New York, North Carolina, Pennsylvania, South Carolina,
Texas and Washington. Because of the light but voluminous nature of the
Company's air cellular, polyethylene foam and protective mailer products,
significant freight savings may be realized by locating manufacturing facilities
for these products near customers. To realize the benefit of such savings, the
Company has facilities for manufacturing these products in various locations in
proximity to customers.
The Company owns the large majority of its manufacturing facilities, certain
of which are owned subject to mortgages or similar financing arrangements. The
balance of the Company's manufacturing facilities are located in leased
premises. The Company's manufacturing facilities are usually located in general
purpose buildings in which the Company's specialized machinery for the
manufacture of one or more products is contained. The Company believes that its
manufacturing facilities are well maintained, suitable for their purposes, and
adequate for the Company's needs.
ITEM 3. LEGAL PROCEEDINGS
On March 31, 1998, the Company completed a multi-step transaction (the
"Cryovac Transaction"). As part of that transaction, the Cryovac packaging
business ("Cryovac"), held by various direct and indirect subsidiaries of the
Company, was separated from the remaining business, and the Company and one of
its subsidiaries borrowed approximately $1,260,000,000. The remaining business,
which received the borrowed funds referred to in the preceding sentence, was
then contributed to a company now known as W. R. Grace & Co. ("New Grace"),
whose shares were distributed to the Company's stockholders. As a result, New
Grace became a separate publicly owned company. The Company and its subsidiary
retained the obligation to repay such borrowed funds. A subsidiary of the
Company then merged into the former Sealed Air Corporation ("old Sealed Air"),
which changed its name to Sealed Air Corporation (US). References to "Grace"
herein refer to the Company and its then subsidiaries before the Cryovac
Transaction. The agreements pursuant to which the Cryovac Transaction was
carried out are referred to herein as the "Transaction Agreements."
In connection with the Cryovac Transaction, New Grace and its subsidiaries
retained all liabilities of Grace, whether accruing or occurring before or after
the Cryovac Transaction, other than liabilities arising from or relating to
Cryovac's operations. The liabilities retained by New Grace include, among
others, liabilities relating to asbestos-containing products previously
manufactured or sold by Grace subsidiaries, including its primary U.S. operating
subsidiary, which has operated for decades and has been a subsidiary of New
Grace since the Cryovac Transaction. The Transaction Agreements provided that,
should any claimant seek to hold the Company, including any of its subsidiaries,
responsible for liabilities of New Grace or its subsidiaries, including such
asbestos-related liabilities, New Grace and its subsidiaries would indemnify and
defend the Company.
Since the beginning of 2000, the Company has been served with a number of
lawsuits alleging that, as a result of the Cryovac Transaction, the Company is
responsible for alleged asbestos liabilities of New Grace and its subsidiaries,
certain of which are also named as co-defendants in these actions. As of
March 21, 2001, pending actions include eight purported class action lawsuits
and thirteen personal injury lawsuits. These cases are all in the pre-trial
stage, and none has been resolved through judgment, settlement or otherwise. The
purported class action lawsuits include the following:
TENNISON V. W. R. GRACE & COMPANY, ET AL., filed in February 2000 and
pending in the U.S. District Court, District of Montana, Missoula Division.
The relief sought includes environmental remediation and restoration,
property damages and punitive damages arising from vermiculite mining and
processing operations formerly owned and operated by Grace in Libby, Montana
that allegedly resulted in asbestos contamination of the surrounding area.
The putative class consists of
6
<PAGE>
owners of improved private properties within a 12 mile radius of the
courthouse in Libby, Montana.
GRENFELL V. W. R. GRACE & COMPANY, ET AL., filed in February 2000 and
pending in the Multidistrict Litigation (MDL) 875 in the U.S. District
Court, Eastern District of Pennsylvania. The relief sought includes medical
monitoring and punitive damages arising from alleged asbestos-contaminated
vermiculite mining and processing operations formerly owned and operated by
Grace in Libby, Montana. The putative class consists of residents and former
residents who lived, for at least one year since 1930, within a 12 mile
radius of the courthouse in Libby, Montana, and employees who worked for at
least one year at the local vermiculite processing plant and members of
their households.
BARBANTI V. W. R. GRACE & COMPANY-CONN., ET AL., filed in March 2000 and
pending in the Superior Court, State of Washington, County of Spokane. The
relief sought includes identification of affected properties, notification
of class members, a remediation fund, punitive damages and other relief. The
complaint is brought on behalf of owners or occupiers of real property
located in the State of Washington in which Zonolite Attic Insulation has
been installed and alleges that such insulation contains
asbestos-contaminated vermiculite. Although the class has been certified,
New Grace and the Company have requested discretionary appellate review of
the class certification ruling.
PRICE V. W. R. GRACE & COMPANY, ET AL., filed in April 2000, and HUNTER V.
W. R. GRACE & COMPANY, ET AL., filed in July 2000, both of which are pending
in MDL 1376 in the U.S. District Court, District of Massachusetts. In both
cases, the purported class consists of owners or occupiers of real property
located in the United States in which Zonolite Attic Insulation has been
installed. The relief sought includes identification of affected properties,
notification to purported class members, funds for research, a remediation
program, punitive damages and other relief.
CHAKARIAN V. W. R. GRACE & COMPANY, ET AL., filed in May 2000 and pending in
the MDL 875 in the U.S. District Court, Eastern District of Pennsylvania.
The purported class consists of all employees who worked for three months or
more at any Grace plant that processed vermiculite and members of their
households. The relief sought includes medical monitoring, research funds,
and warnings to the purported class.
MCMURCHIE V. W. R. GRACE & COMPANY-CONN., ET AL., filed October 2000 and
pending in the District Court, Fourth Judicial District, County of Hennepin,
Minnesota. The purported class consists of owners or occupiers of real
property located in the State of Minnesota in which vermiculite attic
insulation has been installed. The relief sought includes identification of
affected properties, warnings to the purported class, research funds, and
other relief.
ABNER, ET AL., V. W. R. GRACE & COMPANY, ET AL., filed in September 2000 and
pending in the Superior Court of California, County of San Francisco. The
purported class consists of all persons who have lawsuits on file in the
United States that are pursuing unsatisfied personal injury or wrongful
death claims against any of the defendants based on asbestos exposure. Other
defendants include New Grace and related companies, Merrill Lynch, Pierce,
Fenner & Smith Inc., Credit Suisse First Boston Corp., National Medical
Care, Inc., and Fresenius Medical Care, Inc., and related companies. The
plaintiffs allege that the Cryovac Transaction and an earlier 1996
transaction between Grace and Fresenius AG constitute fraudulent
conveyances, result from civil conspiracies and constitute unfair business
practices. Relief sought includes an accounting for all transfers of assets
of Grace and proceeds from the distribution of such assets and receipt of
fees in connection with such transactions, a declaration that both
transactions were fraudulent transfers, establishment of a constructive
trust on all assets transferred in such transactions and a determination
that the defendants are jointly and severally responsible for damages equal
to the
7
<PAGE>
full fair market value of all assets transferred in connection with such
transactions, among other remedies.
Plaintiffs in the personal injury lawsuits seek damages for personal injury or
wrongful death related to alleged exposures to asbestos-containing products.
While the allegations that are directed to the Company in all of the cases
mentioned above vary, these actions all appear to allege that the Cryovac
Transaction was a fraudulent transfer or gave rise to successor liability.
In addition, the Company has been advised that plaintiffs in a substantial
number of Ohio state court asbestos-related personal injury lawsuits have been
granted permission to amend their complaints to add the Company as an additional
defendant. However, the Company has not been served in any of such actions and
lacks further information about these actions.
The Company believes that it is well-positioned to defend the allegations
against it in any asbestos-related actions. Neither old Sealed Air nor Cryovac
has ever produced or sold any asbestos-containing products. To the extent that
the Company is named in any asbestos-related actions, the Company intends to
defend its interests vigorously. However, an adverse outcome could have a
material adverse effect on the Company's results of operations or consolidated
financial position. While it is not possible to predict the outcome of any
litigation, based on the facts known to the Company, the Company does not
believe that an adverse outcome is probable. Thus, in accordance with generally
accepted accounting principles, the Company has not recorded any liability in
its financial statements for these actions.
The Company's legal defense costs to date (including costs paid by New Grace
under the Transaction Agreements) have not been material. In late January 2001,
New Grace announced that it was reviewing the strategic and operating issues
associated with continuing to defend asbestos litigation through the court
system versus seeking a resolution of such litigation through reorganization
under Chapter 11 of the U.S. Bankruptcy Code. If New Grace were to file under
Chapter 11 of the Bankruptcy Code, that would not alter the Company's views
expressed in the preceding paragraph. However, if New Grace files under Chapter
11 or fails to indemnify and defend the Company, the Company could incur
additional asbestos-related costs that could become material to the Company's
results of operations or consolidated financial position.
The Company's worldwide operations are subject to environmental laws and
regulations which, among other things, impose limitations on the discharge of
pollutants into the air and water and establish standards for the treatment,
storage and disposal of solid and hazardous wastes. The Company reviews the
effects of environmental laws and regulations on its operations and believes
that it is in substantial compliance with all material applicable environmental
laws and regulations.
At December 31, 2000, the Company was a party to, or otherwise involved in,
several federal and state government environmental proceedings and private
environmental claims for the cleanup of Superfund or other sites. The Company
may have potential liability for investigation and clean up of certain of such
sites. At most of such sites, numerous companies, including either the Company
or one of its predecessor companies, have been identified as potentially
responsible parties ("PRPs") under Superfund or related laws. It is the
Company's policy to provide for environmental cleanup costs if it is probable
that a liability has been incurred and if an amount which is within the
estimated range of the costs associated with various alternative remediation
strategies is reasonably estimable, without giving effect to any possible future
insurance proceeds. As assessments and cleanups proceed, these liabilities are
reviewed periodically and adjusted as additional information becomes available.
At December 31, 2000, such environmental related provisions were not material.
While it is often difficult to estimate potential liabilities and the future
impact of environmental matters, based upon the information currently available
to the Company and its experience in dealing with such matters, the Company
believes that its potential future liability with respect to such sites is not
material to the Company's results of operations or consolidated financial
position.
8
<PAGE>
The Company is also involved in various other legal actions incidental to
its business. Company management believes, after consulting with counsel, that
the disposition of these other legal proceedings and matters will not have a
material effect on the Company's results of operations or consolidated financial
position.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of the Company's stockholders during the
fourth quarter of 2000.
EXECUTIVE OFFICERS OF THE REGISTRANT
The information appearing in the table below sets forth the current position
or positions held by each executive officer of the Company, his or her age as of
March 15, 2001, the year in which he or she was first elected to the position
currently held with the Company or with old Sealed Air (as indicated in the
footnote to the table), and the year in which he or she was first elected an
officer of the Company or of old Sealed Air (as indicated in the footnote to the
table).
All of the Company's officers serve at the pleasure of the Board of
Directors. All officers have been employed by the Company or its subsidiaries
for more than five years except for Mr. Van Riper, who was elected Senior Vice
President and Chief Financial Officer of the Company effective July 1, 1998.
Previously Mr. Van Riper was a partner in the accounting firm of KPMG LLP, which
was the independent auditor for old Sealed Air for many years prior to the
Cryovac Transaction and has acted
9
<PAGE>
as the independent auditor for the Company since the Cryovac Transaction. There
are no family relationships among any of the Company's officers or directors.
<TABLE>
<CAPTION>
NAME AND AGE AS OF FIRST ELECTED TO FIRST ELECTED
CURRENT POSITION MARCH 15, 2001 CURRENT POSITION* AN OFFICER*
- ---------------------------------------------------- -------------- ----------------- -------------
<S> <C> <C> <C>
William V. Hickey................................... 56 2000 1980
President, Chief Executive Officer and Director
Robert A. Pesci..................................... 55 1997 1990
Senior Vice President
Daniel S. Van Riper................................. 60 1998 1998
Senior Vice President and Chief Financial Officer
Jonathan B. Baker................................... 48 1994 1994
Vice President
James A. Bixby...................................... 57 1990 1990
Vice President
Mary A. Coventry.................................... 47 1994 1994
Vice President
Jean-Luc Debry...................................... 55 1992 1992
Vice President
James P. Mix........................................ 49 1994 1994
Vice President
Manuel Mondragon.................................... 51 1999 1999
Vice President
J. Stuart K. Prosser................................ 55 1999 1999
Vice President
Abraham N. Reichental............................... 44 1994 1994
Vice President
Hugh L. Sargant..................................... 52 1999 1999
Vice President
Horst Tebbe......................................... 60 1998 1986
Vice President
Alan S. Weinberg.................................... 59 1998 1998
Vice President
Tod S. Christie..................................... 42 1999 1999
Treasurer
Jeffrey S. Warren................................... 47 1996 1996
Controller
H. Katherine White.................................. 55 1998 1996
General Counsel and Secretary
</TABLE>
- ------------------------
* Messrs. Christie, Mondragon, Prosser, Sargant, Van Riper and Weinberg were
first appointed to executive officer positions after the Cryovac
Transaction. All other persons listed in the table were executive officers
of old Sealed Air prior to the Cryovac Transaction.
10
<PAGE>
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
The information appearing under the caption "Capital Stock Information" in
the Company's 2000 Annual Report to Stockholders is incorporated herein by
reference.
ITEM 6. SELECTED FINANCIAL DATA
The information appearing under the caption "Selected Financial Data" in the
Company's 2000 Annual Report to Stockholders is incorporated herein by
reference.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS AND
FINANCIAL CONDITION
The information appearing under the caption "Management's Discussion and
Analysis of Results of Operations and Financial Condition" in the Company's 2000
Annual Report to Stockholders is incorporated herein by reference.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The information appearing under the caption "Management's Discussion and
Analysis of Results of Operations and Financial Condition--Quantitative and
Qualitative Disclosures about Market Risk" in the Company's 2000 Annual Report
to Stockholders is incorporated herein by reference.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
See Index to Consolidated Financial Statements and Schedule on page F-2 of
this Annual Report on Form 10-K.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
Not applicable.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Part of the information required in response to this Item is set forth in
Part I of this Annual Report on Form 10-K under the caption "Executive Officers
of the Registrant," and the balance will be set forth in the Company's Proxy
Statement for its 2001 Annual Meeting of Stockholders under the captions
"Information Concerning Nominees" and "Section 16(a) Beneficial Ownership
Reporting Compliance." All such information is incorporated herein by reference.
ITEM 11. EXECUTIVE COMPENSATION
The information required in response to this Item will be set forth in the
Company's Proxy Statement for its 2001 Annual Meeting of Stockholders under the
captions "Directors' Compensation," "Summary Compensation Table" and
"Compensation Committee Interlocks and Insider Participation." Such information
is incorporated herein by reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information required in response to this Item will be set forth in the
Company's Proxy Statement for its 2001 Annual Meeting of Stockholders under the
caption "Voting Securities." Such information is incorporated herein by
reference.
11
<PAGE>
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required in response to this Item will be set forth in the
Company's Proxy Statement for its 2001 Annual Meeting of Stockholders under the
caption "Summary Compensation Table." Such information is incorporated herein by
reference.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(a) DOCUMENTS FILED AS A PART OF THIS ANNUAL REPORT ON FORM 10-K:
(i) FINANCIAL STATEMENTS AND FINANCIAL STATEMENT SCHEDULE
See Index to Consolidated Financial Statements and Schedule on page F-2 of
this Annual Report on Form 10-K.
(ii) EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
- -------------- ------------------------------------------------------------
<S> <C>
2.1 Distribution Agreement dated as of March 30, 1998 among the
Company, W. R. Grace & Co.-Conn. ("Grace-Conn."), and New
Grace. [Exhibit 2.2 to the Company's Current Report on Form
8-K, Date of Report March 31, 1998, File No. 1-12139, is
incorporated herein by reference.]
3.1 Amended and Restated Certificate of Incorporation of the
Company as currently in effect.
3.2 Amendments to the Certificate of Incorporation, effective
December 28, 2000.
3.3 Amended and Restated By-Laws of the Company as currently in
effect.
3.4 Amendments to the By-Laws of the Company, effective
November 2, 2000.
3.5 Amendment to the By-Laws of the Company, effective February
8, 2001.
10.1 Employee Benefits Allocation Agreement dated as of March 30,
1998 among the Company, Grace-Conn. and New Grace. [Exhibit
10.1 to the Company's Current Report on Form 8-K, Date of
Report March 31, 1998, File No. 1-12139, is incorporated
herein by reference.]
10.2 Tax Sharing Agreement dated as of March 30, 1998 by and
among the Company, Grace-Conn. and New Grace. [Exhibit 10.2
to the Company's Current Report on Form 8-K, Date of Report
March 31, 1998, File No. 1-12139, is incorporated herein by
reference.]
10.3 Restricted Stock Plan for Non-Employee Directors of the
Company. [Annex E to the Company's Proxy Statement for the
1998 Annual Meeting of Stockholders is incorporated herein
by reference.]*
10.4 Grace 1996 Stock Incentive Plan, as amended.[Exhibit 10.1 to
the Quarterly Report on Form 10-Q of Grace for the quarter
ended March 31, 1997, File No. 1-12139, is incorporated
herein by reference.]*
10.5 Grace 1994 Stock Incentive Plan, as amended.[Exhibit 10.6 to
the Current Report on Form 8-K filed October 10, 1996 of
Grace, File No. 1-12139, is incorporated herein by
reference.]*
</TABLE>
12
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
- -------------- ------------------------------------------------------------
<S> <C>
10.6 Grace 1989 Stock Incentive Plan, as amended. [Exhibit 10.5
to the Current Report on Form 8-K filed October 10, 1996 of
Grace, File No. 1-12139, is incorporated herein by
reference.]*
10.7 Grace 1986 Stock Incentive Plan, as amended. [Exhibit 10.4
to the Current Report on Form 8-K filed October 10, 1996 of
Grace, File No. 1-12139, is incorporated herein by
reference.]*
10.8 Form of Contingent Stock Purchase Agreement--Section 162(m)
Officer.*
10.9 Form of Contingent Stock Purchase Agreement--Officer.
[Exhibit 10.2 to the Company's Quarterly Report on Form 10-Q
for the quarter ended September 30, 2000, File No. 1-12139,
is incorporated herein by reference.]*
10.10 Form of Restricted Stock Purchase Agreement.[Exhibit 4.4 to
the Company's Registration Statement on Form S-8,
Registration No. 333-59195, is incorporated herein by
reference.]*
10.11 Global Revolving Credit Agreement (5-year) dated as of March
30, 1998 among the Company, certain of its subsidiaries
including Cryovac, Inc., ABN AMRO Bank N.V., Bankers Trust
Company, Bank of America National Trust and Savings
Association, NationsBank, N. A., and the other banks party
thereto. [Exhibit 10.3 to the Company's Current Report on
Form 8-K, Date of Report March 31, 1998, File No. 1-12139,
is incorporated herein by reference.]
10.12 Global Revolving Credit Agreement (364-day) dated as of
March 30, 1998 among the Company, certain of its
subsidiaries including Cryovac, Inc., ABN AMRO Bank N.V.,
Bankers Trust Company, Bank of America National Trust and
Savings Association, NationsBank, N. A., and the other banks
party thereto. [Exhibit 10.4 to the Company's Current Report
on Form 8-K, Date of Report March 31, 1998, File No.
1-12139, is incorporated herein by reference.]
10.13 First Amendment, dated as of March 16, 1999, to Global
Revolving Credit Agreement (5-year), among the Company,
certain of the Company's subsidiaries as borrowers and
guarantors thereunder, ABN AMRO Bank N.V., as Administrative
Agent, and certain other banks party thereto. [Exhibit 10.1
to the Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1999, File No. 1-12139, is
incorporated herein by reference.]
10.14 First Amendment, dated as of March 16, 1999, to Global
Revolving Credit Agreement (364-day), among the Company,
certain of the Company's subsidiaries as borrowers and
guarantors thereunder, ABN AMRO Bank N.V., as Administrative
Agent, and certain other banks party thereto. [Exhibit 10.2
to the Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1999, File No. 1-12139, is
incorporated herein by reference.]
10.15 Second Amendment, dated as of June 2, 1999, to Global
Revolving Credit Agreement (5-year), among the Company,
certain of the Company's subsidiaries as guarantors and/ or
borrowers thereunder, ABN AMRO Bank N.V., as Administrative
Agent, and certain other banks party thereto. [Exhibit 10.1
to the Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1999, File No. 1-12139, is
incorporated herein by reference.]
</TABLE>
13
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
- -------------- ------------------------------------------------------------
<S> <C>
10.16 Second Amendment, dated as of June 2, 1999, to Global
Revolving Credit Agreement (364-day), among the Company,
certain of the Company's subsidiaries as guarantors and/or
borrowers thereunder, ABN AMRO Bank N.V., as Administrative
Agent, and certain other banks party thereto. [Exhibit 10.2
to the Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1999, File No. 1-12139, is
incorporated herein by reference.]
10.17 Third Amendment, dated as of March 24, 2000, to Global
Revolving Credit Agreement (364-day), among the Company,
certain of the Company's subsidiaries as borrowers and
guarantors thereunder, ABN AMRO Bank N.V., as Administrative
Agent, and certain other banks party thereto. [Exhibit 10.1
to the Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 2000, File No. 1-12139, is
incorporated herein by reference.]
10.18 Agreement dated as of April 6, 1999, between the Company and
J. Gary Kaenzig, Jr. [Exhibit 10.3 to the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30,
1999, File No. 1-12139, is incorporated herein by
reference.]*
10.19 Consulting Agreement, dated as of February 29, 2000, between
the Company and T. J. Dermot Dunphy. [Exhibit 10.1 to the
Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2000, File No. 1-12139 is incorporated
herein by reference.]*
10.20 Agreement, dated as of December 13, 2000, between the
Company and Leonard R. Byrne.*
10.21 Sealed Air Corporation Performance-Based Compensation
Program, as approved by the Company's stockholders. [Annex A
to the Company's Proxy Statement for the 2000 Annual Meeting
of Stockholders is incorporated herein by reference.]*
10.22 Contingent Stock Plan of the Company, as amended. [Exhibit
10.1 to the Company's Quarterly Report on Form 10-Q for the
quarter ended September 30, 2000, File No. 1-12139 is
incorporated herein by reference.]*
10.23 Form of Compensation Deferral Agreement. [Exhibit 10.3 to
the Company's Quarterly Report on Form 10-Q for the Quarter
ended September 30, 2000, File No. 1-12139 is incorporated
herein by reference.]*
13 Portions of the Company's 2000 Annual Report to Stockholders
that are incorporated by reference into this Annual Report
on Form 10-K.
21 Subsidiaries of the Company.
23 Consent of KPMG LLP.
</TABLE>
- ------------------------
* Compensatory plan or arrangement of management required to be filed as an
exhibit to this report on Form 10-K.
(b) REPORTS ON FORM 8-K:
The Company furnished the following report under Item 9 of Form 8-K during
the fiscal quarter ended December 31, 2000:
<TABLE>
<CAPTION>
DATE OF REPORT DISCLOSURE
- -------------- ----------
<S> <C>
November 14, 2000 Item 9 Regulation FD disclosure of a
presentation by executives of the
Company about Sealed Air Corporation.
</TABLE>
14
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
<TABLE>
<S> <C> <C>
SEALED AIR CORPORATION
(Registrant)
By /s/ WILLIAM V. HICKEY
-----------------------------------------
William V. Hickey
Date: March 23, 2001 PRESIDENT AND CHIEF EXECUTIVE OFFICER
</TABLE>
Pursuant to the requirements of the Securities Exchange Act of 1934, this report
has been signed below by the following persons on behalf of the registrant and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C> <C>
By /s/ WILLIAM V. HICKEY President, Chief Executive Officer and March 23, 2001
---------------------------- Director (Principal Executive Officer)
William V. Hickey
By /s/ DANIEL S. VAN RIPER Senior Vice President and Chief Financial March 23, 2001
---------------------------- Officer (Principal Financial Officer)
Daniel S. Van Riper
By /s/ JEFFREY S. WARREN Controller (Principal Accounting Officer) March 23, 2001
----------------------------
Jeffrey S. Warren
By /s/ HANK BROWN Director March 23, 2001
----------------------------
Hank Brown
By /s/ JOHN K. CASTLE Director March 23, 2001
----------------------------
John K. Castle
By /s/ LAWRENCE R. CODEY Director March 23, 2001
----------------------------
Lawrence R. Codey
By /s/ T. J. DERMOT DUNPHY Director March 23, 2001
----------------------------
T. J. Dermot Dunphy
By /s/ CHARLES F. FARRELL, JR. Director March 23, 2001
----------------------------
Charles F. Farrell, Jr.
By /s/ SHIRLEY A. JACKSON Director March 23, 2001
----------------------------
Shirley A. Jackson
By /s/ ALAN H. MILLER Director March 23, 2001
----------------------------
Alan H. Miller
By /s/ JOHN E. PHIPPS Director March 23, 2001
----------------------------
John E. Phipps
</TABLE>
15
<PAGE>
SEALED AIR CORPORATION
CONSOLIDATED FINANCIAL STATEMENTS AND SCHEDULE
YEARS ENDED DECEMBER 31, 2000, 1999 AND 1998
F-1
<PAGE>
SEALED AIR CORPORATION AND SUBSIDIARIES
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS AND SCHEDULE
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Independent Auditors' Report................................ *
Financial Statements:
Consolidated Statements of Earnings for the years ended
December 31, 2000, 1999 and 1998....................... *
Consolidated Balance Sheets--December 31, 2000 and
1999................................................... *
Consolidated Statements of Equity for the years ended
December 31, 2000, 1999 and 1998....................... *
Consolidated Statements of Cash Flows for the years
ended December 31, 2000, 1999 and 1998................. *
Consolidated Statements of Comprehensive Income for the
years ended December 31, 2000, 1999 and 1998........... *
Notes to Consolidated Financial Statements.............. *
Independent Auditors' Report on Schedule.................... F-3
Consolidated Schedule:
II--Valuation and Qualifying Accounts....................... F-4
</TABLE>
- ------------------------
* The information required appears on pages 26 through 54 of the Company's
2000 Annual Report to Stockholders and is incorporated by reference into
this Annual Report on Form 10-K.
All other schedules are omitted, as the required information is inapplicable
or the information is presented in the consolidated financial statements or
related notes.
F-2
<PAGE>
INDEPENDENT AUDITORS' REPORT ON SCHEDULE
The Board of Directors
Sealed Air Corporation:
Under date of January 25, 2001, we reported on the consolidated balance sheets
of Sealed Air Corporation and subsidiaries as of December 31, 2000 and 1999, and
the related consolidated statements of earnings, equity, cash flows, and
comprehensive income for each of the years in the three-year period ended
December 31, 2000, as contained in the 2000 Annual Report to Shareholders of
Sealed Air Corporation. These consolidated financial statements and our report
thereon are incorporated by reference in this Annual Report on Form 10-K. In
connection with our audits of the aforementioned consolidated financial
statements, we also audited the related consolidated financial statement
schedule as listed in the accompanying index. This financial statement schedule
is the responsibility of the Company's management. Our responsibility is to
express an opinion on this financial statement schedule based on our audits.
In our opinion, such financial statement schedule, when considered in relation
to the basic consolidated financial statements taken as a whole, presents
fairly, in all material respects, the information set forth therein.
<TABLE>
<S> <C> <C>
/s/ KPMG LLP
KPMG LLP
Short Hills, New Jersey
January 25, 2001
</TABLE>
F-3
<PAGE>
SEALED AIR CORPORATION AND SUBSIDIARIES
SCHEDULE II
Valuation and Qualifying Accounts
Years Ended December 31, 2000, 1999 and 1998
(In thousands of dollars)
<TABLE>
<CAPTION>
ADDITIONS
-------------------------
BALANCE AT CHARGED TO CHARGED BALANCE AT
BEGINNING COSTS AND TO OTHER END
DESCRIPTION OF YEAR EXPENSES ACCOUNTS (1) DEDUCTIONS (2) OF YEAR
- ----------- ---------- ---------- ------------ -------------- ----------
<S> <C> <C> <C> <C> <C>
Year ended December 31, 2000
Allowance for doubtful accounts.... 21,396 3,783 627 (4,635) 21,171
====== ====== ===== ====== ======
Year ended December 31, 1999
Allowance for doubtful accounts.... 17,945 6,662 1,936 (5,147) 21,396
====== ====== ===== ====== ======
Year ended December 31, 1998
Allowance for doubtful accounts.... 7,256 11,300 5,539 (6,150) 17,945
====== ====== ===== ====== ======
</TABLE>
- ------------------------
(1) In 1998, primarily allowance for doubtful accounts of old Sealed Air
acquired on March 31, 1998.
(2) Primarily accounts receivable balances written off.
F-4
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-3.1
<SEQUENCE>2
<FILENAME>a2040779zex-3_1.txt
<DESCRIPTION>EX-3.1
<TEXT>
<PAGE>
Exhibit 3.1
(Unofficial Composite Copy through filing of December 28, 2000)
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
SEALED AIR CORPORATION
FIRST: The name of the corporation is Sealed Air Corporation (the
"CORPORATION").
SECOND: The registered office of the Corporation in the State of
Delaware is to be located at The Prentice-Hall Corporation System, Inc., 1013
Centre Road, Wilmington, New Castle County, Delaware 19805. Its registered agent
at such address is The Prentice-Hall Corporation System, Inc.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is 450,000,000, consisting of 400,000,000 shares of
Common Stock, par value $0.10 per share (the "COMMON STOCK"), and 50,000,000
shares of Preferred Stock, par value $0.10 per share (the "PREFERRED STOCK").
The Preferred Stock may be issued from time to time in one or more
series. The powers, designations, preferences and other rights and
qualifications, limitations or restrictions of the Preferred Stock of each
series shall be such as are stated and expressed in this Article Fourth and, to
the extent not stated and expressed herein, shall be such as may be fixed by the
Board of Directors (authority so to do being hereby expressly granted) and
stated and expressed in a resolution or resolutions adopted by the Board of
Directors providing for the initial issue of Preferred Stock of such series.
Such resolution or resolutions shall (a) fix the dividend rights of holders of
shares of such series, (b) fix the terms on which stock of such series may be
redeemed if the shares of such series are to be redeemable, (c) fix the rights
of the holders of stock of such series upon dissolution or any distribution of
assets, (d) fix the terms or amount of the sinking fund, if any, to be provided
for the purchase or redemption of stock of such series, (e) fix the terms upon
which the stock of such series may be converted into or exchanged for stock of
any other class or classes or of any one or more series of Preferred Stock if
the shares of such series are to be convertible or exchangeable, (f) fix the
voting rights, if any, of the shares of such series and (g) fix such other
powers, designations, preferences and relative, participating, optional or other
special rights, and qualifications, limitations or restrictions thereof desired
to be so fixed.
<PAGE>
Except to the extent otherwise provided in the resolution or
resolutions of the Board of Directors providing for the initial issue of shares
of a particular series or expressly required by law, holders of shares of
Preferred Stock of any series shall be entitled to one vote for each share
thereof so held, shall vote share for share with the holders of the Common Stock
without distinction as to class and shall not be entitled to vote separately as
a class or series of a class. The number of shares of Preferred Stock authorized
to be issued may be increased or decreased from time to time by the affirmative
vote of the holders of a majority of the voting power of the then outstanding
Voting Stock, and the holders of the Preferred Stock shall not be entitled to
vote separately as a class or series of a class on any such increase or
decrease. For the purposes of this Amended and Restated Certificate of
Incorporation, "Voting Stock" shall mean the outstanding shares of capital stock
of the Corporation entitled to vote generally in the election of directors.
All shares of any one series of Preferred Stock shall be identical with
each other in all respects except that shares of any one series issued at
different times may differ as to the dates from which dividends thereon shall
accumulate, and all series of Preferred Stock shall rank equally and be
identical in all respects except as specified in the respective resolutions of
the Board of Directors providing for the initial issue thereof.
Subject to the prior and superior rights of the Preferred Stock as set
forth in any resolution or resolutions of the Board of Directors providing for
the initial issuance of any particular series of Preferred Stock, such dividends
(payable in cash, stock or otherwise) as may be determined by the Board of
Directors may be declared and paid on the Common Stock from time to time out of
any funds legally available therefor and the Preferred Stock shall not be
entitled to participate in any such dividend.
One series of Preferred Stock authorized hereby shall be Series A
Convertible Preferred Stock, as follows:
1. NUMBER OF SHARES AND DESIGNATION. 28,289,714 shares of Preferred
Stock of the Corporation shall constitute a series of Preferred Stock designated
as Series A Convertible Preferred Stock (the "SERIES A PREFERRED STOCK"). The
number of shares of Series A Preferred Stock may be increased (to the extent of
the Corporation's authorized and unissued Preferred Stock) or decreased (but not
below the number of shares of Series A Preferred Stock then outstanding) by
further resolution duly adopted by the Board of Directors and the filing of a
certificate of increase or decrease, as the case may be, with the Secretary of
State of Delaware.
2. RANK. The Series A Preferred Stock shall, with respect to payment of
dividends, redemption payments and rights upon liquidation, dissolution or
winding up of the affairs of the Corporation, (i) rank senior and prior to the
Common Stock and each other class or series of equity securities of the
Corporation, whether currently issued or issued in the future, that by its terms
ranks junior to the Series A Preferred Stock (whether with respect to payment of
dividends, redemption payments or rights upon liquidation, dissolution or
winding up of the affairs of the Corporation) (all of such equity securities,
including the Common Stock, are collectively referred to herein as the "JUNIOR
SECURITIES"), (ii) rank on a parity with each other class or series of equity
securities of the Corporation (other than the
2
<PAGE>
Common Stock), whether currently issued or issued in the future, that does not
by its terms expressly provide that it ranks senior to or junior to the Series A
Preferred Stock (whether with respect to payment of dividends, redemption
payments or rights upon liquidation, dissolution or winding up of the affairs of
the Corporation) (all of such equity securities are collectively referred to
herein as the "PARITY SECURITIES"), and (iii) rank junior to each other class or
series of equity securities of the Corporation, whether currently issued or
issued in the future, that by its terms ranks senior to the Series A Preferred
Stock (whether with respect to payment of dividends, redemption payments or
rights upon liquidation, dissolution or winding up of the affairs of the
Corporation) (all of such equity securities are collectively referred to herein
as the "SENIOR SECURITIES"). The respective definitions of Junior Securities,
Parity Securities and Senior Securities shall also include any rights or options
exercisable or exchangeable for or convertible into any of the Junior
Securities, Parity Securities or Senior Securities, as the case may be.
3. DIVIDENDS.
(a) The holders of shares of Series A Preferred Stock shall be entitled
to receive, when, as and if declared by the Board of Directors, out of funds
legally available for the payment of dividends, cash dividends at the annual
rate of $2.00 per share. Such dividends shall be payable quarterly in arrears,
in equal amounts, on April 1, July 1, October 1 and January 1 of each year
(unless such day is not a Business Day (as defined below), in which event such
dividends shall be payable on the next succeeding Business Day), commencing July
1, 1998 (each such payment date being a "DIVIDEND PAYMENT DATE" and from the
date of issuance until the first Dividend Payment Date and each such quarterly
period thereafter being a "DIVIDEND PERIOD"). Dividends on shares of Series A
Preferred Stock shall be cumulative from the date of issue, whether or not in
any Dividend Period there shall be funds of the Corporation legally available
for the payment of dividends. The amount of dividends payable for each full
Dividend Period shall be computed by dividing the annual dividend rate by four.
The amount of dividends payable on the Series A Preferred Stock for the initial
Dividend Period, or for any other period shorter or longer than a full Dividend
Period, shall be computed on the basis of a 360-day year of twelve 30-day
months. As used herein, the term "BUSINESS DAY" means any day except a Saturday,
Sunday or day on which banking institutions are legally authorized to close in
the City of New York.
(b) Each dividend shall be payable to the holders of record of shares
of Series A Preferred Stock as they appear on the stock records of the
Corporation at the close of business on such record dates (each, a "DIVIDEND
PAYMENT RECORD DATE"), which shall be not more than 60 days nor less than 10
days preceding the Dividend Payment Date thereof, as shall be fixed by the Board
of Directors. Accrued and unpaid dividends for any past Dividend Periods may be
declared and paid at any time, without reference to any Dividend Payment Date,
to holders of record on such date, not more than 60 days nor less than 10 days
preceding the payment date thereof, as may be fixed by the Board of Directors.
No interest, or sum of money in lieu of interest, shall be payable in respect of
any dividend payment or payments on the Series A Preferred Stock that may be in
arrears.
3
<PAGE>
(c) Except as described in the next succeeding sentence, so long as any
shares of Series A Preferred Stock are outstanding, (i) no dividends shall be
declared or paid or set apart for payment, or other distribution declared or
made, on any Parity Securities for any period unless the Corporation has paid or
contemporaneously pays or declares and sets apart for payment on the Series A
Preferred Stock all accrued and unpaid dividends for all Dividend Periods
terminating on or prior to the date of payment of such dividends, and (ii) no
dividends shall be declared or paid or set apart for payment, or other
distribution declared or made, on the Series A Preferred Stock for any Dividend
Period unless the Corporation has paid or contemporaneously pays or declares and
sets apart for payment on any Parity Securities all accrued and unpaid dividends
for all dividend payment periods terminating on or prior to the Dividend Payment
Date for such dividends. Unless and until dividends accrued but unpaid in
respect of all past Dividend Periods with respect to the Series A Preferred
Stock and all past dividend periods with respect to any Parity Securities at the
time outstanding shall have been paid in full or a sum sufficient for such
payment is set apart, all dividends declared by the Corporation upon shares of
Series A Preferred Stock and upon all Parity Securities shall be declared
ratably in proportion to the respective amounts of dividends accrued and unpaid
on the Series A Preferred Stock and Parity Securities.
(d) So long as any shares of Series A Preferred Stock are outstanding,
no dividends shall be declared or paid or set apart for payment, or other
distribution declared or made, upon any Junior Securities (other than dividends
or distributions paid in shares of, or options, warrants or rights to subscribe
for or purchase shares of Junior Securities), nor shall any Junior Securities be
redeemed, purchased or otherwise acquired (other than a redemption, purchase or
other acquisition of shares of Common Stock made for purposes of any employee or
director incentive or benefit plans or arrangements of the Corporation or any
subsidiary of the Corporation) for any consideration (nor shall any moneys be
paid to or made available for a sinking fund for the redemption of any shares of
any such Junior Securities) by the Corporation, directly or indirectly (except
by conversion into or exchange for Junior Securities), unless in each case (i)
the full cumulative dividends on all outstanding shares of Series A Preferred
Stock and any other Parity Securities shall have been paid or set apart for
payment for all past Dividend Periods with respect to the Series A Preferred
Stock and all past dividend periods with respect to such Parity Securities and
(ii) sufficient funds shall have been paid or set apart for the payment of the
dividend for the current Dividend Period with respect to the Series A Preferred
Stock and for the current dividend period with respect to such Parity
Securities.
(e) The Corporation shall not, directly or indirectly, make any payment
on account of any purchase, redemption, retirement or other acquisition of any
Parity Securities (other than for consideration payable solely in Junior
Securities) unless all accrued and unpaid dividends on the Series A Preferred
Stock for all Dividend Payment Periods ending on or before such payment for such
Parity Securities shall have been paid or declared and set apart for payment.
(f) If at any time the Corporation issues any Senior Securities and the
Corporation shall have failed to declare and pay or set apart for payment
accrued and unpaid
4
<PAGE>
dividends on such Senior Securities, in whole or in part, then (except to the
extent allowed by the terms of the Senior Securities) no dividends shall be
declared or paid or set apart for payment on the Series A Preferred Stock unless
and until all accrued and unpaid dividends with respect to the Senior
Securities, including the full dividends for the then-current dividend period,
shall have been declared and paid or set apart for payment.
4. LIQUIDATION PREFERENCE.
(a) The liquidation preference for the shares of Series A Preferred
Stock shall be $50.00 per share, plus an amount equal to the dividends accrued
and unpaid thereon, whether or not declared, to the payment date (the
"LIQUIDATION VALUE").
(b) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the holders of shares of Series A
Preferred Stock (i) shall not be entitled to receive the Liquidation Value of
such shares until payment in full or provision has been made for the payment in
full of all claims of creditors of the Corporation and the liquidation
preferences for all Senior Securities, and (ii) shall be entitled to receive the
Liquidation Value of such shares before any payment or distribution of any
assets of the Corporation shall be made or set apart for holders of any Junior
Securities. Subject to clause (i) above, if the assets of the Corporation are
not sufficient to pay in full the Liquidation Value payable to the holders of
shares of Series A Preferred Stock and the liquidation preference payable to the
holders of any Parity Securities, then such assets, or the proceeds thereof,
shall be distributed among the holders of shares of Series A Preferred Stock and
any such other Parity Securities ratably in accordance with the Liquidation
Value for the Series A Preferred Stock and the liquidation preference for the
Parity Securities, respectively. Upon payment in full of the Liquidation Value
to which the holders of shares of Series A Preferred Stock are entitled, the
holders of shares of Series A Preferred Stock will not be entitled to any
further participation in any distribution of assets of the Corporation.
(c) Neither a consolidation or merger of the Corporation with or into
any other entity, nor a merger of any other entity with or into the Corporation,
nor a sale or transfer of all or any part of the Corporation's assets for cash,
securities or other property shall be considered a liquidation, dissolution or
winding up of the Corporation within the meaning of this Section 4.
5
<PAGE>
5. REDEMPTION.
(a) OPTIONAL REDEMPTION. The Series A Preferred Stock shall not be
redeemable prior to March 31, 2001. During the period from March 31, 2001 until
March 31, 2003, the Corporation may redeem at its option shares of Series A
Preferred Stock in accordance with this Section 5 only if the last reported
sales price of a share of Common Stock in its principal trading market for any
20 trading days within a period of 30 consecutive trading days ending on the
trading day prior to the date of mailing the notice of redemption is at least
$70.6563 (subject to equitable adjustment in circumstances giving rise to
adjustment of the Conversion Price under Section 7(c)). At any time on or after
March 31, 2001, to the extent the Corporation shall have funds legally available
to redeem shares of Series A Preferred Stock and if permitted by the immediately
preceding sentence, the Corporation may redeem shares of Series A Preferred
Stock, in whole or in part, at the option of the Corporation, at the applicable
cash redemption price per share set forth below for any redemption during the
12-month period beginning on March 31 of the year indicated:
<TABLE>
<CAPTION>
YEAR REDEMPTION PRICE PER SHARE
<S> <C>
2001 $51.40
2002 $51.20
2003 $51.00
2004 $50.80
2005 $50.60
2006 $50.40
2007 $50.20
Thereafter $50.00
</TABLE>
PLUS, in each case, an amount equal to the dividends accrued and unpaid thereon,
whether or not declared, up to but not including the redemption date. From and
after March 31, 2008, the Corporation may redeem shares of Series A Preferred
Stock, at any time in whole or in part, at the option of the Corporation, at a
cash redemption price per share of $50.00 PLUS an amount equal to the dividends
accrued and unpaid thereon, whether or not declared, up to but not including the
redemption date.
(b) MANDATORY REDEMPTION. To the extent the Corporation shall have
funds legally available for such payment, on March 31, 2018 (the "MANDATORY
REDEMPTION DATE"), the Corporation shall redeem all outstanding shares of Series
A Preferred Stock at a redemption price of $50.00 per share in cash, together
with accrued and unpaid dividends thereon, whether or not declared, up to but
not including such redemption date, without interest. If the Corporation is
unable or shall fail to discharge its obligation to redeem all outstanding
shares of Series A Preferred Stock on the Mandatory Redemption Date (the
"MANDATORY REDEMPTION OBLIGATION"): (i) dividends on the Series A Preferred
Stock shall continue to accrue, without interest, in accordance with Section 3,
and (ii) the Mandatory Redemption
6
<PAGE>
Obligation shall be discharged as soon thereafter as the Corporation is able to
discharge such Mandatory Redemption Obligation. If and for so long as any
Mandatory Redemption Obligation with respect to the Series A Preferred Stock
shall not be fully discharged on the Mandatory Redemption Date, the Corporation
shall not (x) directly or indirectly, redeem, purchase, or otherwise acquire any
Parity Securities or discharge any mandatory or optional redemption, sinking
fund or other similar obligation in respect of any Parity Securities (except in
connection with a redemption, sinking fund or other similar obligation to be
satisfied pro rata with the Series A Preferred Stock) or (y) declare or pay or
set apart for payment any dividends or other distributions upon any Junior
Securities, or, directly or indirectly, discharge any mandatory or optional
redemption, sinking fund or other similar obligation in respect of any Junior
Securities.
6. PROCEDURES FOR REDEMPTION.
(a) If fewer than all of the outstanding shares of Series A Preferred
Stock are to be redeemed pursuant to Section 5, the shares shall be redeemed on
a PRO RATA basis (according to the number of shares of Series A Preferred Stock
held by each holder, with any fractional shares rounded to the nearest whole
share) or in such other manner as the Board of Directors may determine, as may
be prescribed by resolution of the Board of Directors. Notwithstanding the
provisions of Section 5 and this Section 6, unless full cumulative cash
dividends (whether or not declared) on all outstanding shares of Series A
Preferred Stock shall have been paid or contemporaneously are declared and paid
or set apart for payment for all Dividend Periods terminating on or prior to the
applicable redemption date, none of the shares of Series A Preferred Stock shall
be redeemed, and no sum shall be set aside for such redemption, unless shares of
Series A Preferred Stock are redeemed pro rata.
(b) In the event of a redemption of shares of Series A Preferred Stock
pursuant to Section 5, notice of such redemption shall be given by first class
mail, postage prepaid, mailed not less than 15 days nor more than 60 days prior
to the redemption date, to each holder of record of the shares to be redeemed at
such holder's address as the same appears on the stock register of the
Corporation; PROVIDED that neither the failure to give such notice nor any
defect therein shall affect the validity of the giving of notice for the
redemption of any share of Series A Preferred Stock to be redeemed, except as to
the holder to whom the Corporation has failed to give said notice or except as
to the holder whose notice was defective. Each such notice shall state: (i) the
redemption date; (ii) the number of shares of Series A Preferred Stock to be
redeemed and, if fewer than all the shares held by such holder are to be
redeemed, the number of shares to be redeemed from such holder; (iii) the
redemption price; (iv) the place or places where certificates for such shares
are to be surrendered for payment of the redemption price; and (v) that
dividends on the shares to be redeemed will cease to accrue on such redemption
date. Any notice mailed in the manner herein provided shall be conclusively
presumed to have been duly given whether or not the holder receives the notice.
(c) If a notice of redemption has been given pursuant to Section 6(b)
and if, on or before the redemption date, the funds necessary for such
redemption (including all
7
<PAGE>
dividends on the shares of Series A Preferred Stock to be redeemed that will
accrue to but not including the redemption date) shall have been set aside by
the Corporation, separate and apart from its other funds, in trust for the PRO
RATA benefit of the holders of the shares so called for redemption, then on the
redemption date, notwithstanding that any certificates for such shares have not
been surrendered for cancellation, (i) dividends shall cease to accrue on the
shares of Series A Preferred Stock to be redeemed, (ii) the holders of such
shares shall cease to be stockholders with respect to those shares, shall have
no interest in or claims against the Corporation by virtue thereof and shall
have no voting or other rights with respect thereto, except the conversion
rights provided in Section 7 (in accordance with Section 6(e)) and the right to
receive the monies payable upon such redemption, without interest thereon, upon
surrender (and endorsement, if required by the Corporation) of their
certificates, and (iii) the shares evidenced thereby shall no longer be
outstanding. Subject to applicable escheat laws, any monies so set aside by the
Corporation and unclaimed at the end of two years from the redemption date shall
revert to the general funds of the Corporation, after which reversion the
holders of such shares so called for redemption shall look only to the general
funds of the Corporation for the payment of the redemption price, without
interest. Any interest accrued on funds so deposited shall belong to the
Corporation and be paid thereto from time to time.
(d) Upon surrender in accordance with the Corporation's notice of
redemption of the certificates for any shares so redeemed (properly endorsed or
assigned for transfer, if the Board of Directors shall so require and the notice
shall so state), such shares shall be redeemed by the Corporation at the
redemption price aforesaid. In case fewer than all the shares represented by any
such certificate are redeemed, a new certificate shall be issued representing
the unredeemed shares without cost to the holder thereof.
(e) If a notice of redemption has been given pursuant to Section 6(b)
and any holder of shares of Series A Preferred Stock shall, prior to the close
of business on the Business Day preceding the redemption date, give written
notice to the Corporation pursuant to Section 7 of the conversion of any or all
of the shares to be redeemed held by the holder (accompanied by a certificate or
certificates for such shares, duly endorsed or assigned to the Corporation, and
any necessary transfer tax payment, as required by Section 7), then such
redemption shall not become effective as to such shares to be converted and such
conversion shall become effective as provided in Section 7, whereupon any funds
deposited by the Corporation for the redemption of such shares shall (subject to
any right of the holder of such shares to receive the dividend payable thereon
as provided in Section 7) immediately upon such conversion be returned to the
Corporation or, if then held in trust by the Corporation, shall automatically
and without further corporate action or notice be discharged from the trust.
7. CONVERSION.
(a) RIGHT TO CONVERT.
8
<PAGE>
(i) Subject to the provisions of this Section 7, each holder
of shares of Series A Preferred Stock shall have the right, at any time
and from time to time, at such holder's option, to convert any or all
of such holder's shares of Series A Preferred Stock, in whole or in
part, into fully paid and non-assessable shares of Common Stock at the
conversion price of $56.525 per share of Common Stock, subject to
adjustment as described in Section 7(c) (as adjusted, the "CONVERSION
PRICE"). The number of shares of Common Stock into which a share of the
Series A Preferred Stock shall be convertible (calculated as to each
conversion to the nearest 1/1,000,000th of a share) shall be determined
by dividing $50.00 by the Conversion Price in effect at the time of
conversion.
(ii) If shares of Series A Preferred Stock are called for
redemption in accordance with Section 5(a), the right to convert shares
so called for redemption shall terminate at the close of business on
the Business Day immediately preceding the date fixed for redemption
unless the Corporation shall default in making payment of the amount
payable upon such redemption, in which case the conversion rights for
such shares shall continue.
(b) MECHANICS OF CONVERSION.
(i) To exercise the conversion right, the holder of shares of
Series A Preferred Stock to be converted shall surrender the
certificate or certificates representing such shares at the office of
the Corporation (or any transfer agent of the Corporation previously
designated by the Corporation to the holders of Series A Preferred
Stock for this purpose) with a written notice of election to convert
completed and signed, specifying the number of shares to be converted.
Unless the shares issuable upon conversion are to be issued in the same
name as the name in which such shares of Series A Preferred Stock are
registered, each share surrendered for conversion shall be accompanied
by instruments of transfer, in form satisfactory to the Corporation,
duly executed by the holder or the holder's duly authorized attorney
and an amount sufficient to pay any transfer or similar tax in
accordance with Section 7(b)(vii). As promptly as practicable after the
surrender by the holder of the certificates for shares of Series A
Preferred Stock as aforesaid, the Corporation shall issue and shall
deliver to such holder, or on the holder's written order to the
holder's transferee, a certificate or certificates for the whole number
of shares of Common Stock issuable upon the conversion of such shares
and a check payable in an amount corresponding to any fractional
interest in a share of Common Stock as provided in Section 7(b)(viii).
(ii) Each conversion shall be deemed to have been effected
immediately prior to the close of business on the first Business Day
(the "CONVERSION DATE") on which the certificates for shares of Series
A Preferred Stock shall have been surrendered and such notice received
by the Corporation as aforesaid. At such time on the Conversion Date:
9
<PAGE>
(w) the person in whose name or names any certificate
or certificates for shares of Common Stock shall be issuable
upon such conversion shall be deemed to have become the holder
of record of the shares of Common Stock represented thereby at
such time;
(x) such shares of Series A Preferred Stock shall no
longer be deemed to be outstanding and all rights of a holder
with respect to such shares surrendered for conversion shall
immediately terminate except the right to receive the Common
Stock and other amounts payable pursuant to this Section 7;
(y) in lieu of dividends on such Series A Preferred
Stock pursuant to Section 3, such shares of Series A Preferred
Stock shall participate equally and ratably with the holders
of shares of Common Stock in all dividends paid on the Common
Stock; and
(z) the right of the Corporation to redeem such
shares of Series A Preferred Stock shall terminate, regardless
of whether a notice of redemption has been mailed as
aforesaid.
All shares of Common Stock delivered upon conversion of the Series A
Preferred Stock will, upon delivery, be duly and validly issued and
fully paid and non-assessable, free of all liens and charges and not
subject to any preemptive rights.
(iii) Holders of shares of Series A Preferred Stock at the
close of business on a Dividend Payment Record Date shall be entitled
to receive the dividend payable on such shares on the corresponding
Dividend Payment Date notwithstanding the conversion thereof following
such Dividend Payment Record Date and prior to such Dividend Payment
Date. However, shares of Series A Preferred Stock surrendered for
conversion during the period between the close of business on any
Dividend Payment Record Date and the opening of business on the
corresponding Dividend Payment Date (except shares converted after the
issuance of a notice of redemption during such period, which shall be
entitled to such dividend on the Dividend Payment Date) must be
accompanied by payment of an amount equal to the dividend payable on
such shares on such Dividend Payment Date; PROVIDED that
notwithstanding such surrender of shares for conversion after such
Dividend Payment Record Date, the holders thereof at the close of
business on such Dividend Payment Record Date shall be entitled to
receive the dividend payable on such shares on the corresponding
Dividend Payment Date. A holder of shares of Series A Preferred Stock
on a Dividend Payment Record Date who (or whose transferee) tenders any
such shares for conversion into shares of Common Stock on such Dividend
Payment Date will receive the dividend payable by the Corporation on
such shares of Series A Preferred Stock on such date, and the
converting holder need not include payment of the amount of such
dividend upon surrender of shares of Series A Preferred Stock for
conversion.
10
<PAGE>
(iv) Except as provided in clause (iii) above and in Section
7(c), the Corporation shall make no payment or adjustment for accrued
and unpaid dividends on shares of Series A Preferred Stock, whether or
not in arrears, on conversion of such shares or for dividends in cash
on the shares of Common Stock issued upon such conversion.
(v) The Corporation covenants that it will at all times
reserve and keep available, free from preemptive rights, such number of
its authorized but unissued shares of Common Stock as shall be required
for the purpose of effecting conversions of the Series A Preferred
Stock. Prior to the delivery of any securities which the Corporation
shall be obligated to deliver upon conversion of the Series A Preferred
Stock, the Corporation shall comply with all applicable federal and
state laws and regulations which require action to be taken by the
Corporation.
(vi) The Corporation will pay any and all documentary stamp or
similar issue or transfer taxes payable in respect of the issuance or
delivery of shares of Common Stock on conversion of the Series A
Preferred Stock pursuant hereto; PROVIDED that the Corporation shall
not be required to pay any tax which may be payable in respect of any
transfer involved in the issuance or delivery of shares of Common Stock
in a name other than that of the holder of the Series A Preferred Stock
to be converted, and no such issuance or delivery shall be made unless
and until the person requesting such issuance or delivery has paid to
the Corporation the amount of any such tax or has established, to the
satisfaction of the Corporation, that such tax has been paid.
(vii) In connection with the conversion of any shares of
Series A Preferred Stock, no fractions of shares of Common Stock shall
be issued, but in lieu thereof the Corporation shall pay a cash
adjustment in respect of such fractional interest in an amount equal to
such fractional interest multiplied by the Daily Price (as defined
below) per share of Common Stock on the Conversion Date. In the absence
of a Daily Price, the Board of Directors shall in good faith determine
the current market price on such basis as it considers appropriate, and
such current market price shall be used to calculate the cash
adjustment. As used herein, "DAILY PRICE" means (w) if the shares of
such class of Common Stock are then listed and traded on the New York
Stock Exchange, Inc. ("NYSE"), the closing price on such day as
reported on the NYSE Composite Transactions Tape; (x) if the shares of
such class of Common Stock are not then listed and traded on the NYSE,
the closing price on such day as reported by the principal national
securities exchange on which the shares are listed and traded; (y) if
the shares of such class of Common Stock are not then listed and traded
on any such securities exchange, the last reported sale price on such
day on the National Market of the National Association of Securities
Dealers, Inc. Automated Quotation System ("NASDAQ"); or (z) if the
shares of such class of Common Stock are not then traded on the NASDAQ
National Market, the average of the highest reported bid and lowest
reported asked price on such day, as reported by NASDAQ.
11
<PAGE>
(c) ADJUSTMENTS TO CONVERSION PRICE. The Conversion Price shall be
adjusted from time to time as follows:
(i) If, at any time after the date of issuance of the Series A
Preferred Stock, the Corporation shall (A) pay a dividend or make a
distribution on any class of its capital stock in shares of its Common
Stock, (B) subdivide its outstanding shares of Common Stock into a
greater number of shares or (C) combine its outstanding shares of
Common Stock into a smaller number of shares, the Conversion Price in
effect immediately prior thereto shall be adjusted as provided below so
that the Conversion Price thereafter shall be determined by multiplying
the Conversion Price at which the shares of Series A Preferred Stock
were theretofore convertible by a fraction, the numerator of which
shall be the number of shares of Common Stock outstanding immediately
prior to such action, and the denominator of which shall be the number
of shares of Common Stock outstanding immediately following such
action. Such adjustment shall be made whenever any event listed above
shall occur and shall become effective retroactively immediately after
the record date in the case of a dividend and immediately after the
effective date in the case of a subdivision or combination.
(ii) If, at any time after the date of issuance of the Series
A Preferred Stock, the Corporation shall issue rights or warrants to
all holders of its Common Stock entitling them (for a period expiring
within 45 days after the record date for determining stockholders
entitled to receive such rights or warrants) to subscribe for or
purchase shares of Common Stock at a price per share less than the
current market price per share of Common Stock at the record date
therefor (as determined in accordance with the provisions of Section
7(c)(iv)), the "CURRENT MARKET PRICE"), or in case the Corporation
shall issue to all holders of its Common Stock other securities
convertible into or exchangeable for Common Stock for a consideration
per share of Common Stock deliverable upon conversion or exchange
thereof less than the Current Market Price, then the Conversion Price
in effect immediately prior thereto shall be adjusted as provided below
so that the Conversion Price therefor shall be equal to the price
determined by multiplying (A) the Conversion Price at which shares of
Series A Preferred Stock were theretofore convertible by (B) a fraction
of which the numerator shall be the sum of (1) the number of shares of
Common Stock outstanding on the date of issuance of the convertible or
exchangeable securities, rights or warrants and (2) the number of
additional shares of Common Stock that the aggregate offering price for
the number of shares of Common Stock so offered would purchase at the
Current Market Price per share of Common Stock, and of which the
denominator shall be the sum of (1) the number of shares of Common
Stock outstanding on the date of issuance of such convertible or
exchangeable securities, rights or warrants and (2) the number of
additional shares of Common Stock offered for subscription or purchase,
or issuable upon such conversion or exchange. Such adjustment shall be
made whenever such convertible or exchangeable securities, rights or
warrants are issued, and shall become effective immediately after the
record date for the determination of stockholders entitled to
12
<PAGE>
receive such securities. However, upon the expiration of any right or
warrant to purchase Common Stock, the issuance of which resulted in an
adjustment in the Conversion Price pursuant to this Section 7(c)(ii),
if any such right or warrant shall expire and shall not have been
exercised, the Conversion Price shall be recomputed immediately upon
such expiration and effective immediately upon such expiration shall be
increased to the price it would have been (but reflecting any other
adjustments to the Conversion Price made pursuant to the provisions of
this Section 7(c) after the issuance of such rights or warrants) had
the adjustment of the Conversion Price made upon the issuance of such
rights or warrants been made on the basis of offering for subscription
or purchase only that number of shares of Common Stock actually
purchased upon the exercise of such rights or warrants. No further
adjustment shall be made upon exercise of any right, warrant,
convertible security or exchangeable security if any adjustment shall
have been made upon issuance of such security.
(iii) If, at any time after the date of issuance of the Series
A Preferred Stock, the Corporation shall distribute to all holders of
its Common Stock (including any dividend paid in connection with a
consolidation or merger in which the Corporation is the continuing
corporation) any shares of capital stock of the Corporation or its
subsidiaries (other than Common Stock) or evidences of its
indebtedness, cash or other assets (excluding dividends payable solely
in cash that may from time to time be fixed by the Board of Directors,
or dividends or distributions in connection with the liquidation,
dissolution or winding up of the Corporation) or rights or warrants to
subscribe for or purchase any of its securities or those of its
subsidiaries or securities convertible or exchangeable for Common Stock
(excluding those securities referred to in Section 7(c)(ii)), then in
each such case the Conversion Price in effect immediately prior thereto
shall be adjusted as provided below so that the Conversion Price
thereafter shall be equal to the price determined by multiplying (A)
the Conversion Price in effect on the record date mentioned below by
(B) a fraction, the numerator of which shall be the Current Market
Price per share of Common Stock on the record date mentioned below less
the then fair market value (as determined by the Board of Directors,
whose good faith determination shall be conclusive) as of such record
date of the assets, evidences of indebtedness or securities so paid
with respect to one share of Common Stock, and the denominator of which
shall be the Current Market Price per share of Common Stock on such
record date; PROVIDED, HOWEVER, that in the event the then fair market
value (as so determined) so paid with respect to one share of Common
Stock is equal to or greater than the Current Market Price per share of
Common Stock on the record date mentioned above, in lieu of the
foregoing adjustment, adequate provision shall be made so that each
holder of shares of Series A Preferred Stock shall have the right to
receive the amount and kind of assets, evidences of indebtedness, or
securities such holder would have received had such holder converted
each such share of Series A Preferred Stock immediately prior to the
record date for such dividend. Such adjustment shall be made whenever
any such payment is made, and shall become
13
<PAGE>
effective retroactively immediately after the record date for the
determination of stockholders entitled to receive the payment.
(iv) For the purpose of any computation under Sections
7(c)(ii) or 7(c)(iii), the Current Market Price per share of Common
Stock at any date shall be deemed to be the average Daily Price for the
30 consecutive trading days commencing 35 trading days before the day
in question.
(v) No adjustment in the Conversion Price shall be required
unless the adjustment would require an increase or decrease of at least
1% in the Conversion Price then in effect; PROVIDED, HOWEVER, that any
adjustments that by reason of this Section 7(c)(v) are not required to
be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Section 7(c) shall
be made to the nearest cent.
(vi) In the event that, at any time as a result of an
adjustment made pursuant to Section 7(c)(i) or 7(c)(iii), the holder of
any shares of Series A Preferred Stock thereafter surrendered for
conversion shall become entitled to receive any shares of the
Corporation or its subsidiaries, other than shares of the Common Stock,
thereafter the number of such other shares so receivable upon
conversion of any share of Series A Preferred Stock shall be subject to
adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the Common
Stock contained in Sections 7(c)(i) through 7(c)(v), and the other
provisions of this Section 7 with respect to the Common Stock shall
apply on like terms to any such other shares.
(vii) Whenever the Conversion Price is adjusted, as herein
provided, the Corporation shall promptly file with the transfer agent
for the Series A Preferred Stock a certificate of an officer of the
Corporation setting forth the Conversion Price after the adjustment and
setting forth a brief statement of the facts requiring such adjustment
and a computation thereof. The certificate shall be PRIMA FACIE
evidence of the correctness of the adjustment. The Corporation shall
promptly cause a notice of the adjusted Conversion Price to be mailed
to each registered holder of shares of Series A Preferred Stock.
(viii) In case of any reclassification of the Common Stock,
any consolidation of the Corporation with, or merger of the Corporation
into, any other entity, any merger of another entity into the
Corporation (other than a merger that does not result in any
reclassification, conversion, exchange or cancellation of outstanding
shares of Common Stock of the Corporation), any sale or transfer of all
or substantially all of the assets of the Corporation or any compulsory
share exchange pursuant to which share exchange the Common Stock is
converted into other securities, cash or other property, then lawful
provision shall be made as part of the terms of such transaction
whereby the holder of each share of Series A Preferred Stock then
outstanding shall have the right thereafter, during the period such
share
14
<PAGE>
shall be convertible, to convert such share only into the kind and
amount of securities, cash and other property receivable upon the
reclassification, consolidation, merger, sale, transfer or share
exchange by a holder of the number of shares of Common Stock of the
Corporation into which a share of Series A Preferred Stock would have
been convertible immediately prior to the reclassification,
consolidation, merger, sale, transfer or share exchange. The
Corporation, the person formed by the consolidation or resulting from
the merger or which acquires such assets or which acquires the
Corporation's shares, as the case may be, shall make provisions in its
certificate or articles of incorporation or other constituent documents
to establish such rights and to ensure that the dividend, voting and
other rights of the holders of Series A Preferred Stock established
herein are unchanged, except as permitted by Section 9 and applicable
law. The certificate or articles of incorporation or other constituent
documents shall provide for adjustments, which, for events subsequent
to the effective date of the certificate or articles of incorporation
or other constituent documents, shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 7. The
provisions of this Section 7(c)(viii) shall similarly apply to
successive reclassifications, consolidations, mergers, sales, transfers
or share exchanges.
(d) OPTIONAL REDUCTION IN CONVERSION PRICE. The Corporation may at its
option reduce the Conversion Price from time to time by any amount for any
period of time if the period is at least 20 days and if the reduction is
irrevocable during the period. Whenever the Conversion Price is so reduced, the
Corporation shall mail to holders of record of the Series A Preferred Stock a
notice of the reduction at least 15 days before the date the reduced Conversion
Price takes effect, stating the reduced Conversion Price and the period it will
be in effect. A voluntary reduction of the Conversion Price does not change or
adjust the Conversion Price otherwise in effect for purposes of Section 7(c).
8. STATUS OF SHARES. All shares of Series A Preferred Stock that are at
any time redeemed pursuant to Section 5 or converted pursuant to Section 7 and
all shares of Series A Preferred Stock that are otherwise reacquired by the
Corporation shall (upon compliance with any applicable provisions of the laws of
the State of Delaware) have the status of authorized but unissued shares of
Preferred Stock, without designation as to series, subject to reissuance by the
Board of Directors as shares of any one or more other series.
9. VOTING RIGHTS.
(a) The holders of record of shares of Series A Preferred Stock shall
not be entitled to any voting rights except as hereinafter provided in this
Section 9 or as otherwise provided by law.
(b) The holders of the shares of Series A Preferred Stock (i) shall be
entitled to vote with the holders of the Common Stock on all matters submitted
for a vote of holders of Common Stock (voting together with the holders of
Common Stock as one class), (ii) shall be entitled to a number of votes equal to
the number of votes to which shares of Common
15
<PAGE>
Stock issuable upon conversion of such shares of Series A Preferred Stock would
have been entitled if such shares of Common Stock had been outstanding at the
time of the applicable vote and related record date and (iii) shall be entitled
to notice of any stockholders' meeting in accordance with the Certificate of
Incorporation and Bylaws of the Corporation.
(c) If and whenever six quarterly dividends (whether or not
consecutive) payable on the Series A Preferred Stock have not been paid in full
or if the Corporation shall have failed to discharge its Mandatory Redemption
Obligation on or after the Redemption Date, the number of directors then
constituting the Board of Directors shall be increased by two and the holders of
shares of Series A Preferred Stock, together with the holders of shares of every
other series of preferred stock upon which like rights to vote for the election
of two additional directors have been conferred and are exercisable (resulting
from either the failure to pay dividends or the failure to redeem) (any such
other series is referred to as the "PREFERRED SHARES"), voting as a single class
regardless of series, shall be entitled to elect the two additional directors to
serve on the Board of Directors at any annual meeting of stockholders or special
meeting held in place thereof, or at a special meeting of the holders of the
Series A Preferred Stock and the Preferred Shares called as hereinafter
provided. Whenever all arrears in dividends on the Series A Preferred Stock and
the Preferred Shares then outstanding shall have been paid and dividends thereon
for the current quarterly dividend period shall have been paid or declared and
set apart for payment, or the Corporation shall have fulfilled its Mandatory
Redemption Obligation, as the case may be, then the right of the holders of the
Series A Preferred Stock and the Preferred Shares to elect such additional two
directors shall cease (but subject always to the same provisions for the vesting
of such voting rights in the case of any similar future arrearages in six
quarterly dividends or failure to fulfill any Mandatory Redemption Obligation),
and the terms of office of all persons elected as directors by the holders of
the Series A Preferred Stock and the Preferred Shares shall forthwith terminate
and the number of the Board of Directors shall be reduced accordingly. At any
time after such voting power shall have been so vested in the holders of shares
of Series A Preferred Stock and the Preferred Shares, the secretary of the
Corporation may, and upon the written request of any holder of Series A
Preferred Stock (addressed to the secretary at the principal office of the
Corporation) shall, call a special meeting of the holders of the Series A
Preferred Stock and of the Preferred Shares for the election of the two
directors to be elected by them as herein provided, such call to be made by
notice similar to that provided in the Bylaws of the Corporation for a special
meeting of the stockholders or as required by law. If any such special meeting
required to be called as above provided shall not be called by the secretary
within 20 days after receipt of any such request, then any holder of shares of
Series A Preferred Stock may call such meeting, upon the notice above provided,
and for that purpose shall have access to the stock records of the Corporation.
The directors elected at any such special meeting shall hold office until the
next annual meeting of the stockholders or special meeting held in lieu thereof
if such office shall not have previously terminated as above provided. If any
vacancy shall occur among the directors elected by the holders of the Series A
Preferred Stock and the Preferred Shares, a successor shall be elected by the
Board of Directors, upon the nomination of the then-remaining director elected
by the holders of the Series A Preferred Stock and the Preferred
16
<PAGE>
Shares or the successor of such remaining director, to serve until the next
annual meeting of the stockholders or special meeting held in place thereof if
such office shall not have previously terminated as provided above.
(d) So long as any shares of Series A Preferred Stock are outstanding:
(i) the Corporation shall not, without the written consent or
affirmative vote at a meeting called for that purpose by holders of at
least 66-2/3% of the outstanding shares of Series A Preferred Stock,
voting as a single class, amend, alter or repeal any provision of the
Corporation's Certificate of Incorporation (by merger or otherwise) so
as to materially and adversely affect the preferences, rights or powers
of the Series A Preferred Stock; PROVIDED that any such amendment,
alteration or repeal to create, authorize or issue any Junior
Securities or Parity Securities, or any security convertible into, or
exchangeable or exercisable for, shares of Junior Securities or Parity
Securities, shall not be deemed to have any such material adverse
effect;
(ii) the Corporation shall not, without the written consent or
affirmative vote at a meeting called for that purpose of at least
66-2/3% of the votes entitled to be cast by the holders of shares of
Series A Preferred Stock and of all other series of Preferred Stock
upon which like rights to vote upon the matters specified herein have
been conferred and are exercisable, voting as a single class regardless
of series, create, authorize or issue any Senior Securities, or any
security convertible into, or exchangeable or exercisable for, shares
of Senior Securities; and
(iii) the Corporation shall not, without the written consent
or affirmative vote at a meeting called for that purpose of at least a
majority of the votes entitled to be cast by the holders of shares of
Series A Preferred Stock and of all other series of Preferred Stock
upon which like rights to vote upon the matters specified herein have
been conferred and are exercisable, voting as a single class regardless
of series, create, authorize or issue any new class of Parity
Securities; PROVIDED that this clause (iii) shall not limit the right
of the Corporation to issue Parity Securities in connection with any
merger in which the Corporation is the surviving entity;
PROVIDED that no such consent or vote of the holders of Series A Preferred Stock
shall be required if at or prior to the time when such amendment, alteration or
repeal is to take effect, or when the issuance of any such securities is to be
made, as the case may be, all shares of Series A Preferred Stock at the time
outstanding shall have been called for redemption by the Corporation and the
funds necessary for such redemption shall have been set aside in accordance with
Sections 5 and 6.
(e) The consent or votes required in Sections 9(c) and 9(d) shall be in
addition to any approval of stockholders of the Corporation which may be
required by law or pursuant to any provision of the Corporation's Certificate of
Incorporation or Bylaws, which approval
17
<PAGE>
shall be obtained by vote of the stockholders of the Corporation in the manner
provided in Section 9(b).
10. NO OTHER RIGHTS.
(a) The shares of Series A Preferred Stock shall not have any relative,
participating, optional or other special rights and powers except as set forth
herein or as may be required by law.
FIFTH: The Corporation is to have perpetual existence.
SIXTH: The private property of the stockholders shall not be subject to
the payment of the corporate debts to any extent whatever except as otherwise
provided by law.
SEVENTH: In furtherance, and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized:
A. To adopt, amend or repeal the by-laws of the Corporation;
B. To authorize and cause to be executed mortgages and liens,
with or without limit as to amount, upon the real and personal property
of the Corporation;
C. To authorize the guaranty by the Corporation of securities,
evidences of indebtedness and obligations of other persons,
corporations and business entities; and
D. By resolution adopted by a majority of the whole board, to
designate one or more committees, each committee to consist of two or
more of the directors of the Corporation, which, to the extent provided
in the resolution, shall have and may exercise the powers of the Board
of Directors in the management of the business and affairs of the
Corporation and may authorize the seal of the Corporation to be affixed
to all papers which may require it. Such committee or committees shall
have such name or names as may be determined from time to time by
resolution adopted by the Board of Directors. The Board of Directors
may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any
meeting of the committee. The members of any such committee present at
any meeting and not disqualified from voting may, whether or not they
constitute a quorum, unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any absent or
disqualified member.
All corporate powers of the Corporation shall be exercised by the Board of
Directors except as otherwise provided herein or by law.
18
<PAGE>
EIGHTH: Any property of the Corporation constituting less than all of
its assets including goodwill and its corporate franchise, deemed by the Board
of Directors to be not essential to the conduct of the business of the
Corporation, may be sold, leased, exchanged or otherwise disposed of by
authority of the Board of Directors. All of the property and assets of the
Corporation including its goodwill and its corporate franchises, may be sold,
leased or exchanged upon such terms and conditions and for such consideration
(which may be in whole or in part shares of stock and/or other securities of any
other corporation or corporations) as the Board of Directors shall deem
expedient and for the best interests of the Corporation, when and as authorized
by the affirmative vote of the holders of a majority of the voting power of the
then outstanding Voting Stock given at a stockholders' meeting duly called for
that purpose upon at least 20 days notice containing notice of the proposed
sale, lease or exchange.
NINTH: A director or officer of the Corporation shall not be
disqualified by his office from dealing or contracting with the Corporation
either as a vendor, purchaser or otherwise, nor shall any transaction or
contract of the Corporation be void or voidable by reason of the fact that any
director or officer or any firm of which any director or officer is a member or
any corporation of which any director or officer is a stockholder, officer or
director, is in any way interested in such transaction or contract, provided
that such transaction or contract is or shall be authorized, ratified or
approved either (1) by a vote of a majority of a quorum of the Board of
Directors or of a committee thereof, without counting in such majority any
director so interested (although any director so interested may be included in
such quorum), or (2) by a majority of a quorum of the stockholders entitled to
vote at any meeting. No director or officer shall be liable to account to the
Corporation for any profits realized from any such transaction or contract
authorized, ratified or approved as aforesaid by reason of the fact that he, or
any firm of which he is a member or any corporation of which he is a
stockholder, officer or director, was interested in such transaction or
contract. Nothing herein contained shall create liability in the events above
described or prevent the authorization, ratification or approval of such
contracts in any other manner permitted by law.
TENTH: Any contract, transaction or act of the Corporation or of the
Board of Directors which shall be approved or ratified by a majority of a quorum
of the stockholders entitled to vote at any meeting shall be as valid and
binding as though approved or ratified by every stockholder of the Corporation;
but any failure of the stockholders to approve or ratify such contract,
transaction or act, when and if submitted, shall not be deemed in any way to
invalidate the same or to deprive the Corporation, its directors or officers of
their right to proceed with such contract, transaction or act.
ELEVENTH: Each person who is or was or has agreed to become a director
or officer of the Corporation, and each such person who is or was serving or who
has agreed to serve at the request of the Board of Directors or an officer of
the Corporation as an employee or agent of the Corporation or as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, including service with respect to employee benefit
plans (including the heirs, executors, administrators or estate of
19
<PAGE>
such person), shall be indemnified by the Corporation, in accordance with the
by-laws of the Corporation, to the fullest extent permitted from time to time by
the General Corporation Law of the State of Delaware as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights than said law permitted prior to such amendment) or any other applicable
laws as presently or hereafter in effect. Without limiting the generality or the
effect of the foregoing, the Corporation may enter into one or more agreements
with any person which provide for indemnification greater than or different from
that provided in this ARTICLE ELEVENTH. Any amendment or repeal of this ARTICLE
ELEVENTH shall not adversely affect any right or protection existing hereunder
in respect of any act or omission occurring prior to such amendment or repeal.
TWELFTH: A director of the Corporation shall not be personally liable
to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (1) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (2) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (3) under Section 174 of the General Corporation Law
of the State of Delaware, or (4) for any transaction from which the director
derived an improper personal benefit. Any amendment or repeal of this ARTICLE
TWELFTH shall not adversely affect any right or protection of a director of the
Corporation existing hereunder in respect of any act or omission occurring prior
to such amendment or repeal.
THIRTEENTH: Whenever a compromise or arrangement is proposed between
this corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this corporation under
Section 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this corporation under
Section 279 of Title 8 of the Delaware Code, order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of this corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of this corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders, of this corporation, as the case
may be, and also on this corporation.
FOURTEENTH: Meetings of stockholders and directors may be held within
or without the State of Delaware, as the by-laws may provide. The books of
account of the Corporation may be kept (subject to any provision contained in
the statutes) outside the State of Delaware at such place or places as may be
designated from time to time by the Board of
20
<PAGE>
Directors or in the by-laws of the Corporation. Elections of directors need not
be by written ballot unless the by-laws of the Corporation shall so provide.
FIFTEENTH: Subject to the rights of the holders of any series of
Preferred Stock or any other series or class of stock as set forth in this
Amended and Restated Certificate of Incorporation to elect additional directors
under specific circumstances, whenever the vote of stockholders at a meeting
thereof is required or permitted to be taken for or in connection with any
corporate action, the meeting and vote of stockholders may be dispensed with if
a written consent to such corporate action is signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted; provided that prompt notice
must be given to all stockholders of the taking of corporate action without a
meeting and by less than unanimous written consent.
SIXTEENTH: Each director, other than those who may be elected by the
holders of any series of Preferred Stock or any other series or class of stock
as set forth in this Amended and Restated Certificate of Incorporation, shall
hold office until a successor is elected at the next succeeding annual meeting
of stockholders and qualified or until such director's earlier resignation or
removal. Regardless of the foregoing sentence, in the case of directors
designated as Class I directors elected at the annual meeting of stockholders
held in 1999, such directors shall hold office until a successor is elected at
the annual meeting of stockholders held in 2002 and qualified or until such
director's earlier resignation or removal, and in the case of directors
designated as Class III directors prior to the annual meeting of stockholders
held in 1999, such directors shall hold office until a successor is elected at
the annual meeting of stockholders held in 2001 and qualified or until such
director's earlier resignation or removal.
SEVENTEENTH: The Corporation reserves the right to amend, alter, change
or repeal any provision contained in this certificate of incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
21
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-3.2
<SEQUENCE>3
<FILENAME>a2040779zex-3_2.txt
<DESCRIPTION>EX-3.2
<TEXT>
<PAGE>
Exhibit 3.2
CERTIFICATE OF RETIREMENT
OF
CERTAIN PREFERRED STOCK
OF
SEALED AIR CORPORATION
(Pursuant to Section 243 of the General Corporation Law of the State of
Delaware)
SEALED AIR CORPORATION, a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "Corporation"),
DOES HEREBY CERTIFY THAT:
FIRST: At a meeting of the Board of Directors of the Corporation a
resolution was duly adopted which resolved that all shares of Series A
Convertible Preferred Stock of the Corporation that are issued but not
outstanding as of the close of business on December 8, 2000 shall be and are
retired as shares of such Series A Convertible Preferred Stock.
SECOND: Pursuant to such resolution, the Corporation has retired
7,732,137 shares of its Series A Convertible Preferred Stock.
THIRD: The Certificate of Incorporation of the Corporation prohibits
the reissuance of the above shares of Preferred Stock as shares of that Series A
Convertible Preferred Stock, and provides that such shares shall have the status
of authorized but unissued shares of Preferred Stock, without designation as to
series, subject to reissuance by the Board of Directors of the Corporation as
shares of any one or more other series.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
signed by William V. Hickey, its authorized President and Chief Executive
Officer, and attested to by H. Katherine White, its Secretary, this 28th day of
December, 2000.
SEALED AIR CORPORATION
[Seal] By: /s/ WILLIAM V. HICKEY
---------------------------
William V. Hickey
President and
ATTEST: Chief Executive Officer
/s/ H. KATHERINE WHITE
- ---------------------------
H. Katherine White
Secretary
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-3.3
<SEQUENCE>4
<FILENAME>a2040779zex-3_3.txt
<DESCRIPTION>EXHIBIT 3.3
<TEXT>
<PAGE>
Exhibit 3.3
Amended and Restated By-Laws of Sealed Air Corporation as currently in effect.
AMENDED AND RESTATED BY-LAWS
OF
SEALED AIR CORPORATION
AS AMENDED FEBRUARY 8, 2001
ARTICLE 1
OFFICES
SECTION 1.01. REGISTERED OFFICE. The registered office of the
Corporation shall be in Wilmington, Delaware.
SECTION 1.02. OTHER OFFICES. The Corporation may also have offices
at such other places within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE 2
MEETINGS OF STOCKHOLDERS
SECTION 2.01. PLACE. Meetings of the stockholders shall be held at
such place either within or without the State of Delaware as shall be designated
from time to time by the Board of Directors.
SECTION 2.02. ANNUAL MEETINGS. Annual meetings of stockholders
shall, unless otherwise provided by the Board of Directors, be held on the third
Friday in May each year if not a legal holiday, and if a legal holiday, then on
the next full business day following, at 10:00 A.M., at which the stockholders
shall elect directors, vote upon the ratification of the selection of the
independent auditors selected for the Corporation for the then current fiscal
year of the Corporation, and transact such other business as may properly be
brought before the meeting.
SECTION 2.03. NOTICE OF ANNUAL MEETINGS. Written notice of the
annual meeting, stating the place, date and hour thereof, shall be given to each
stockholder entitled to vote thereat not less than ten nor more than sixty days
before the date of the meeting.
SECTION 2.04. LIST OF STOCKHOLDERS. The officer who has charge of
the stock ledger of the Corporation shall prepare and make or cause to be
prepared and made, at least ten days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at said meeting, arranged in
alphabetical order with the address of and the
<PAGE>
number of voting shares registered in the name of each. Such list shall be open
for ten days prior to the meeting to the examination of any stockholders, for
any purpose germane to the meeting, during ordinary business hours, either at a
place within the city where the meeting is to be held, which place shall be
specified in the notice of meeting, or, if not so specified, at the place where
the meeting is to be held, and shall be produced and kept at the time and place
of said meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
SECTION 2.05. SPECIAL MEETINGS. Special meetings of the
stockholders may be called by the chief executive officer or the president or by
resolution of the Board of Directors and, subject to the procedures set forth in
this section, shall be called by the chief executive officer or the secretary at
the request in writing of stockholders owning a majority of the voting power of
the then outstanding Voting Stock. Any such resolution or request shall state
the purpose or purposes of the proposed meeting. Such meeting shall be held at
such time and date as may be fixed by the Board of Directors. The Board of
Directors may postpone fixing the time and date of a special meeting to be held
at the request of stockholders in order to allow the secretary to determine the
validity of such request, PROVIDED, that if such request is determined to be
valid, then the Board of Directors shall fix the date of such special meeting to
be no later than 90 days after such determination. For the purposes of these
By-laws, the term "Voting Stock" shall have the meaning of such term set forth
in the Certificate of Incorporation or, if not defined therein, "Voting Stock"
shall mean the outstanding shares of capital stock of the Corporation entitled
to vote generally in the election of directors.
SECTION 2.06. NOTICE OF SPECIAL MEETINGS. Written notice of a
special meeting of stockholders, stating the place, date, hour and purpose
thereof, shall be given by the secretary to each stockholder entitled to vote
thereat, not less than ten nor more than sixty days before the date fixed for
the meeting.
SECTION 2.07. BUSINESS TRANSACTED. Business transacted at any
special meeting of stockholders shall be limited to the purposes stated in the
notice.
SECTION 2.08. QUORUM. The holders of a majority of the voting
power of the then outstanding Voting Stock, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or the
Certificate of Incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, so long as the adjournment is not for more than thirty days and a
new record date is not fixed for the adjourned meeting, until a quorum shall be
present or represented. If a quorum shall be present or represented at such
adjourned meeting, any business may be transacted which might have been
transacted at the original meeting. When specified business is to be voted on by
a class or series of stock voting as a class,
2
<PAGE>
the holders of a majority of the voting power of the shares of such class or
series shall constitute a quorum of such class or series for the transaction of
such business.
SECTION 2.09. VOTE REQUIRED. When a quorum is present at any
meeting, the vote of the holders of a majority of the voting power of the Voting
Stock present in person or represented by proxy shall decide any questions
brought before such meeting, except as otherwise provided by statute or the
Certificate of Incorporation.
SECTION 2.10. PROXIES, ETC. Except as otherwise provided by
statute or the Certificate of Incorporation, each stockholder shall at every
meeting of the stockholders be entitled to one vote in person or by proxy for
each share of the capital stock having voting power held by such stockholder,
but no proxy shall be voted or acted upon after three years from its date,
unless the proxy provides for a longer period. No proxy or power of attorney to
vote shall be used to vote at a meeting of the stockholders unless it shall have
been filed with the secretary of the meeting when required by the inspectors of
election.
SECTION 2.11. INSPECTORS OF ELECTION. In advance of any meeting
of the stockholders, the Board of Directors or the presiding officer of such
meeting shall appoint two or more inspectors of election to act at such
meeting or at any adjournments thereof and make a written report thereof. One
or more persons may also be designated by the Board of Directors or such
presiding officer as alternate inspectors to replace any inspector who fails
to act. If no inspector or alternate is able to act at a meeting of
stockholders, the presiding officer of such meeting shall appoint one or more
inspectors to act at such meeting. No director or nominee for the office of
director at such meeting shall be appointed an inspector of election. Each
inspector, before entering on the discharge of the inspector's duties, shall
first take and sign an oath faithfully to execute the duties of inspector at
such meeting with strict impartiality and according to the best of such
person's ability. The inspectors of election shall, in accordance with the
requirements of the Delaware General Corporation Law, (i) ascertain the
number of shares outstanding and the voting power of each, (ii) determine the
shares represented at the meeting and the validity of proxies and ballots,
(iii) count all votes and ballots, (iv) determine and retain for a reasonable
period and file with the secretary of the meeting a record of the disposition
of any challenges made to any determination by the inspectors, and (v) make
and file with the secretary of the meeting a certificate of their
determination of the number of shares represented at the meeting and their
count of all votes and ballots. The inspectors may appoint or retain other
persons or entities to assist the inspectors in the performance of the duties
of the inspectors.
SECTION 2.12. NOTICE OF STOCKHOLDER NOMINATION AND STOCKHOLDER
BUSINESS. At an annual meeting of the stockholders, only such persons who are
nominated in accordance with the procedures set forth in this section shall be
eligible to stand for election as directors and only such business shall be
conducted as shall have been brought before the meeting in accordance with the
procedures set forth in these By-laws.
3
<PAGE>
Nominations of persons for election to the Board of Directors of the Corporation
and the proposal of business to be considered by the stockholders at an annual
meeting of stockholders may be made (i) pursuant to the Corporation's notice of
meeting, including matters covered by Rule 14a-8 under the Securities and
Exchange Act of 1934, as amended (the "Exchange Act"), (ii) by or at the
direction of the Board of Directors or (iii) by any stockholder of the
Corporation who was a stockholder of record at the time of giving of notice by
the stockholder as provided in this section, who is entitled to vote at the
meeting, and who complies with the notice provision set forth in this section. A
notice of the intent of a stockholder to make a nomination or to bring any other
matter before an annual meeting must be made in writing and received by the
secretary of the Corporation no earlier than the 119th day and not later than
the close of business on the 45th day prior to the first anniversary of the date
of mailing of the Corporation's proxy statement for the prior year's annual
meeting. However, if the date of the annual meeting has changed by more than 30
days from the date it was held in the prior year or if the Corporation did not
hold an annual meeting in the prior year, then such notice must be received a
reasonable time before the Corporation mails its proxy statement for the annual
meeting. Every such notice by a stockholder shall set forth (i) the name and
address of such stockholder as they appear on the Corporation's books and the
class and number of shares of the Corporation's Voting Stock that are owned
beneficially and of record by such stockholder, (ii) a representation that the
stockholder is a holder of the Corporation's Voting Stock and intends to appear
in person or by proxy at the meeting to make the nomination or bring up the
matter specified in the notice; (iii) with respect to notice of an intent to
make a nomination, a description of all arrangements or understandings among the
stockholder and each nominee and any other person or persons (naming such person
or persons) pursuant to which the nomination or nominations are to be made by
the stockholder, and such other information regarding each nominee proposed by
such stockholder as would have been required to be included in a proxy statement
filed pursuant to the proxy rules of the Securities and Exchange Commission had
each nominee been nominated by the Board of Directors of the Corporation; and
(iv) with respect to notice of an intent to bring up any other matter, a
description of the matter, the reasons for conducting such business at the
meeting and any material interest of the stockholder in the matter. Notice of
intent to make a nomination shall be accompanied by the written consent of each
nominee to be named in a proxy statement as a nominee and to serve as director
of the Corporation if so elected. Except as otherwise provided by law or by the
Certificate of Incorporation, the presiding officer of the meeting shall have
the power and authority to determine whether a nomination or any business
proposed to be brought before the meeting was made or proposed, as the case may
be, in accordance with the procedures set forth in this By-law and whether such
matter is an appropriate subject for stockholder action under applicable law,
and, if it was not, to declare that such proposal or nomination shall be
disregarded. Notwithstanding the foregoing provisions of this section, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this section. Nothing in this section shall be deemed to affect any
rights of stockholders to request inclusion of proposals in the
4
<PAGE>
Corporation's proxy statement in accordance with Rule 14a-8 under the Exchange
Act or the holders of any series of preferred stock to elect directors under
circumstances specified in the Certificate of Incorporation.
SECTION 2.13. NOTICE BY ELECTRONIC TRANSMISSION. Without limiting
the manner by which notice otherwise may be given effectively to stockholders,
any notice to stockholders given by the Corporation under any law, the
Certificate of Incorporation or these By-laws shall be effective if given by a
form of electronic transmission then consented to by the stockholder to whom the
notice is given.
ARTICLE 3
DIRECTORS
SECTION 3.01. NUMBER Subject to the rights of the holders of any
series or class of stock to elect directors under specified circumstances as
provided by the Certificate of Incorporation, the number of directors which
shall constitute the whole Board of Directors shall be fixed from time to time
by resolution of the Board of Directors, but no decrease in the number of
directors effected by any such resolution shall change the term of any director
in office at the time that any such resolution is adopted. The directors shall
be elected at the annual meeting of the stockholders, except as otherwise
provided by statute, the Certificate of Incorporation or Section 3.02 of these
By-laws, and each director shall hold office until a successor is elected and
qualified or until such director's earlier resignation or removal. Directors
need not be stockholders.
SECTION 3.02. VACANCIES. Vacancies and newly created directorships
resulting from any increase in the authorized number of directors may be filled
by a majority of the directors then in office, though less than a quorum, or by
a sole remaining director, and, except as otherwise provided by statute or the
Certificate of Incorporation, each of the directors so chosen shall hold office
until the next annual election and until a successor is elected and qualified or
until such director's earlier resignation or removal.
SECTION 3.03. AUTHORITY. The business of the Corporation shall be
managed by or under the direction of its Board of Directors, which shall
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute, by the Certificate of Incorporation or by these
By-laws directed or required to be exercised or done by the stockholders or are
not by these By-laws or by resolution of the Board of Directors or a committee
thereof, in either case not inconsistent with the statutes, the Certificate of
Incorporation or these By-laws, authorized or directed to be done by the
officers of the Corporation.
5
<PAGE>
SECTION 3.04. PLACE OF MEETING. The Board of Directors of the
Corporation or any committee thereof may hold meetings, both regular and
special, either within or without the State of Delaware.
SECTION 3.05. ANNUAL MEETING. A regular meeting of the Board of
Directors shall be held immediately following the adjournment of the annual
meeting of stockholders. No notice of such meeting shall be necessary to the
directors in order legally to constitute the meeting, provided a quorum be
present. In the event such meeting is not so held, the meeting may be held at
such time and place as shall be specified in a notice given as hereinafter
provided for special meetings of the Board of Directors.
SECTION 3.06. REGULAR MEETINGS. Except as provided in Section
3.05, regular meetings of the Board of Directors may be held without notice at
such time and at such place as shall from time to time be determined by the
Board of Directors.
SECTION 3.07. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the chief executive officer or the president and
shall be called by the chief executive officer or the secretary on the written
request of at least two directors. Notice of special meetings of the Board of
Directors shall be given to each director at least three calendar days before
the meeting if by mail or at least the calendar day before the meeting if given
in person or by telephone, facsimile, telegraph, telex or similar means of
electronic transmission. The notice need not specify the business to be
transacted.
SECTION 3.08. EMERGENCY MEETINGS. In the event of an emergency
which in the judgment of the chief executive officer or the president requires
immediate action, a special meeting may be convened without notice, consisting
of those directors who are immediately available in person or by telephone and
can be joined in the meeting in person or by conference telephone. The actions
taken at such a meeting shall be valid if at least a quorum of the directors
participates either personally or by conference telephone.
SECTION 3.09. QUORUM; VOTE REQUIRED. At meetings of the Board of
Directors, a majority of the directors at the time in office shall constitute a
quorum for the transaction of business and the act of a majority of the
directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors. If a quorum shall not be present at any meeting of the
Board of Directors, the directors present thereat may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
SECTION 3.10. ORGANIZATION. The chief executive officer shall
preside at meetings of the Board of Directors.
6
<PAGE>
SECTION 3.11. COMMITTEES. The Board of Directors may, by
resolution adopted by a majority of the whole Board of Directors, designate one
or more committees, each committee to consist of two or more of the directors of
the Corporation. All committees may authorize the seal of the Corporation to be
affixed to all papers which may require it. To the extent provided in any
resolution or by these By-laws, subject to any limitations set forth under the
laws of the State of Delaware and the Certificate of Incorporation, any such
committee shall have and may exercise any of the powers and authority of the
Board of Directors in the management of the business and affairs of the
Corporation. Such committee or committees shall have such name or names as may
be determined from time to time by resolution adopted by the Board of Directors.
Unless the Board of Directors designates one or more directors as alternate
members of any committee, who may replace any absent or disqualified member at
any meeting of the committee, the members of any such committee present at any
meeting and not disqualified from voting may, whether or not they constitute a
quorum, unanimously appoint another member of the Board of Directors to act at
the meeting in the place of any absent or disqualified member of such committee.
At meetings of any such committee, a majority of the members or alternate
members of such committee shall constitute a quorum for the transaction of
business, and the act of a majority of members or alternate members present at
any meeting at which there is a quorum shall be the act of the committee.
SECTION 3.12. MINUTES OF COMMITTEE MEETINGS. The committees shall
keep regular minutes of their proceedings and, when requested to do so by the
Board of Directors, shall report the same to the Board of Directors.
SECTION 3.13. ACTION BY WRITTEN CONSENT. Any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if a written consent thereto is
signed by all members of the Board of Directors or of such committee, as the
case may be, and such written consent is filed with the minutes of proceedings
of the Board of Directors or committee.
SECTION 3.14. PARTICIPATION BY CONFERENCE TELEPHONE. The members
of the Board of Directors or any committee thereof may participate in a meeting
of the Board of Directors or such committee by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other and such participation shall constitute presence
in person at such meeting.
SECTION 3.15. COMPENSATION OF DIRECTORS. The directors may be paid
their expenses of attendance at each meeting of the Board of Directors or of any
special or standing committee thereof. The Board of Directors may establish by
resolution from time to time the fees to be paid to each director who is not an
officer or employee of the Corporation or any of its subsidiaries for serving as
a director of the Corporation, for serving on any special or standing committee
of the Board of Directors, and for attending meetings of the Board of Directors
or of any special or standing committee thereof. No
7
<PAGE>
such payment shall preclude any such director from serving the Corporation in
any other capacity and receiving compensation therefor.
ARTICLE 4
NOTICES
SECTION 4.01. GIVING OF NOTICE. Notices to directors and
stockholders mailed to them at their addresses appearing on the books of the
Corporation shall be deemed to be given at the time when deposited in the United
States mail.
SECTION 4.02. WAIVER OF NOTICE. Whenever any notice is required to
be given under the provisions of the statutes or of the Certificate of
Incorporation or of these By-laws, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent to notice. Attendance of a person at
a meeting shall constitute a waiver of notice of such meeting except when the
person attends a meeting for the express purpose of objecting, at the beginning
of the meeting, to the transaction of any business because the meeting is not
lawfully called or convened.
ARTICLE 5
OFFICERS
SECTION 5.01. SELECTION OF OFFICERS. The officers of the
Corporation shall be chosen by the Board of Directors at its first meeting after
each annual meeting of stockholders and shall be a chief executive officer, who
shall be a director, a president, one or more vice presidents and a secretary.
The Board of Directors may appoint such other officers, assistant officers and
agents as it may determine. Any number of offices may be held by the same
person.
SECTION 5.02. POWERS AND DUTIES IN GENERAL. The officers,
assistant officers and agents shall each have such powers and perform such
duties in the management of the affairs, property and business of the
Corporation, subject to the control and limitation by the Board of Directors, as
is designated by these By-Laws and as generally pertain to their respective
offices, as well as such powers and duties as may be authorized from time to
time by the Board of Directors.
SECTION 5.03. TERM OF OFFICE, ETC. The officers of the Corporation
shall hold office at the pleasure of the Board of Directors. Each officer shall
hold office until a successor is elected and qualified or until such officer's
earlier resignation or removal. Any officer may resign at any time upon written
notice to the Corporation. Any officer elected or appointed by the Board of
Directors may be removed at any time by the Board
8
<PAGE>
of Directors. Any vacancy occurring in any office of the Corporation by death,
resignation, removal or otherwise shall be filled by the Board of Directors.
SECTION 5.04. CHIEF EXECUTIVE OFFICER. The chief executive officer
of the Corporation shall preside at all meetings of the stockholders, shall have
the responsibility for the general and active management and control of the
affairs and business of the Corporation, shall perform all duties and have all
powers which are commonly incident to the office of chief executive or which are
delegated to the chief executive officer by the Board of Directors, and shall
see that all orders and resolutions of the Board of Directors are carried into
effect. The chief executive officer shall have the authority to sign all
certificates of stock, bonds, deeds, contracts and other instruments of the
Corporation that are authorized and shall have general supervision and direction
of all of the other officers and agents of the Corporation.
SECTION 5.05. PRESIDENT. The president, who may also be the
chief executive officer of the Corporation, shall perform all duties and have
all powers which are commonly incident to the office of president or which
are delegated to the president by the Board of Directors, and shall see that
all orders and resolutions of the Board of Directors are carried into effect.
In the absence or disability of the chief executive officer, the president
shall perform the duties and exercise the powers of the chief executive
officer. The president shall have the authority to sign all certificates of
stock, bonds, deeds, contracts and other instruments of the Corporation that
are authorized.
SECTION 5.06. VICE PRESIDENTS. The vice presidents shall act under
the direction of the chief executive officer and in the absence or disability of
both the chief executive officer and the president shall perform the duties and
exercise the powers of the chief executive officer. They shall perform such
other duties and have such other powers as the chief executive officer or the
Board of Directors may from time to time prescribe. The Board of Directors may
designate one or more executive or senior vice presidents or may otherwise
specify the order of seniority of the vice presidents, and in that event the
duties and powers of the chief executive officer shall descend to the vice
presidents in such specified order of seniority.
SECTION 5.07. SECRETARY. The secretary shall act under the
direction of the chief executive officer. Subject to the direction of the chief
executive officer, the secretary shall attend all meetings of the Board of
Directors and all meetings of the stockholders and record the proceedings in a
book to be kept for that purpose, and the secretary shall perform like duties
for the standing committees of the Board of Directors when requested to do so.
The secretary shall give, or cause to be given, notice of all meetings of the
stockholders and special meetings of the Board of Directors, shall have charge
of the original stock books, stock transfer books and stock ledgers of the
Corporation, and shall perform such other duties as may be prescribed by the
chief executive officer or the Board of Directors. The secretary shall have
custody of the seal of the Corporation and
9
<PAGE>
cause it to be affixed to any instrument requiring it, and when so affixed, it
may be attested by the secretary's signature. The Board of Directors may give
general authority to any other officer to affix the seal of the Corporation and
to attest the affixing by such officer's signature.
SECTION 5.08. ASSISTANT SECRETARIES. The assistant secretaries in
order of their seniority, unless otherwise determined by the chief executive
officer or the Board of Directors, shall, in the absence or disability of the
secretary, perform the duties and exercise the powers of the secretary. They
shall perform such other duties and have such other powers as the chief
executive officer or the Board of Directors may from time to time prescribe.
ARTICLE 6
CERTIFICATES OF STOCK
SECTION 6.01. ISSUANCE. The stock of the Corporation shall be
represented by certificates, PROVIDED that the Board of Directors may provide by
resolution for any or all of the stock to be uncertificated shares.
Notwithstanding any resolution by the board of directors providing for
uncertificated shares, every holder of stock in the Corporation represented by
certificates and, upon request, every holder of uncertificated shares in the
Corporation shall be entitled to have a certificate signed by, or in the name of
the Corporation by, the chairman or vice chairman of the board, if any, or the
president or a vice president and the treasurer or an assistant treasurer or the
secretary or an assistant secretary of the Corporation, certifying the number of
shares owned by such holder in the Corporation.
SECTION 6.02. FACSIMILE SIGNATURES. If a certificate is
countersigned (a) by a transfer agent other than the Corporation or its
employee, or (b) by a registrar other than the Corporation or its employee, the
signatures of the officers of the Corporation may be facsimiles. In case any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall cease to be such officer, transfer
agent or registrar before such certificate is issued, it may be issued with the
same effect as if he were such officer, transfer agent or registrar at the date
of issue. The seal of the Corporation or a facsimile thereof may, but need not,
be affixed to certificates of stock.
SECTION 6.03. LOST CERTIFICATES, ETC. The Corporation may
establish procedures for the issuance of a new certificate of stock in place of
any certificate theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed and may in connection therewith require, among other things,
the making of an affidavit of that fact by the person claiming the certificate
of stock to be lost, stolen or destroyed and the giving by such person to the
Corporation of a bond in such sum as may be specified pursuant to such
procedures as indemnity against any claim that may be made against the
Corporation with respect to the certificate alleged to have been lost, stolen or
destroyed.
10
<PAGE>
SECTION 6.04. TRANSFER. Upon surrender to the Corporation or the
transfer agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation, if it shall be satisfied that
all provisions of the Certificate of Incorporation, the By-laws and the laws
regarding the transfer of shares have been duly complied with, to issue a new
certificate to the person entitled thereto or provide other evidence of the
transfer, cancel the old certificate and record the transaction upon its books.
SECTION 6.05. REGISTERED STOCKHOLDERS. The Corporation shall be
entitled to recognize the person registered on its books as the owner of shares
to be the exclusive owner for all purposes including voting and dividends, and
the Corporation shall not be bound to recognize any equitable or other claim to
or interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided
by the laws of Delaware.
SECTION 6.06. RECORD DATE FOR CONSENTS. In order that the
Corporation may determine the stockholders entitled to consent to corporate
action in writing without a meeting, the Board of Directors may fix, in advance,
a record date, which record date shall not be more than ten days after the date
upon which the resolution fixing the record date is adopted by the Board of
Directors. Any stockholder of record seeking to have the stockholders authorize
or take corporate action by written consent shall, by written notice to the
secretary, request the Board of Directors to fix a record date. The Board of
Directors shall promptly, but in all events within ten days after the date on
which such request is received, adopt a resolution fixing the record date. If no
record date has been fixed by the Board of Directors within ten days after the
receipt of such request and no prior action by the Board of Directors is
required by applicable law, then the record date shall be the first date on
which a signed written consent setting forth the action taken or proposed to be
taken is delivered to the Corporation by delivery to its headquarters office to
the attention of the secretary. Delivery shall be by hand or certified or
registered mail, return receipt requested. If no record date has been fixed by
the Board of Directors and prior action by the Board of Directors is required by
applicable law, the record date for determining stockholders entitled to consent
shall be at the close of business on the date on which the Board of Directors
adopts the resolution taking such prior action. The Board of Directors may
postpone action by written consent in order to allow the secretary to conduct a
reasonable and prompt investigation to ascertain the legal sufficiency of the
consents. The secretary may designate an independent inspector of election to
conduct such investigation.
SECTION 6.07. RECORD DATES. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors may fix, in
advance, a record date, which shall not be more than sixty or less
11
<PAGE>
than ten days before the date of such meeting, and not more than sixty days
prior to any other action. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment
of the meeting; PROVIDED, HOWEVER, that the Board of Directors may fix a new
record date for the adjourned meeting.
ARTICLE 7
MISCELLANEOUS
SECTION 7.01. DECLARATION OF DIVIDENDS. Dividends upon the shares
of the capital stock of the Corporation may be declared and paid by the Board of
Directors from the funds legally available therefor. Dividends may be paid in
cash, in property, or in shares of the capital stock of the Corporation.
SECTION 7.02. RESERVES. The directors of the Corporation may set
apart out of any of the funds of the Corporation available for dividends a
reserve or reserves for such purposes as the directors shall think conducive to
the interest of the Corporation, and the directors may modify or abolish any
such reserve.
SECTION 7.03. FISCAL YEAR. The fiscal year of the Corporation
shall be fixed by resolution of the Board of Directors.
SECTION 7.04. CORPORATE SEAL. The corporate seal shall have
inscribed thereon the name of the Corporation, the year of its organization and
the words "Corporate Seal, Delaware". The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or in any other manner reproduced.
ARTICLE 8
INDEMNIFICATION
SECTION 8.01. IN GENERAL. Any person who was or is a party or is
threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he or a person of whom he is the legal representative, is or
was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation or for its benefit as a director,
officer, employee or agent of another corporation, or as its representative in a
partnership, joint venture, trust or other enterprise, shall be indemnified and
held harmless to the fullest extent legally permissible under and pursuant to
any procedure specified in or pursuant to the General Corporation Law of the
State of Delaware, as amended from time to time, from and against any and all
expenses, liabilities and losses (including without limitation attorney's fees,
judgments, fines and amounts paid or to be
12
<PAGE>
paid in settlement) actually and reasonably incurred or suffered by such person
in connection therewith. Such right of indemnification shall be a contract right
which may be enforced in any manner desired by such person. Such right of
indemnification shall not be exclusive of any other right which such directors,
officers, employees, agents or representatives may have or hereafter acquire
and, without limiting the generality of the foregoing, they shall be entitled to
their respective rights of indemnification under any by-law, agreement, vote of
stockholders or the Board of Directors, provision of law or otherwise, as well
as their rights under this Article.
SECTION 8.02. INSURANCE. The Board of Directors may cause the
Corporation to purchase and maintain insurance on behalf of any person who is or
was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation or as its representative in a partnership, joint
venture, trust or other enterprise against any liability asserted against such
person and incurred in any such capacity, or arising out of such status, whether
or not the Corporation would have the power to indemnify such person against
such liability.
SECTION 8.03. ADDITIONAL INDEMNIFICATION. The Board of Directors
may from time to time adopt further by-laws with respect to indemnification and
may amend these By-laws and such by-laws to provide at all times the fullest
indemnification permitted by the General Corporation Law of the State of
Delaware, as amended from time to time.
ARTICLE 9
AMENDMENTS
SECTION 9.01. BY THE STOCKHOLDERS. Except as otherwise provided by
statute or the Certificate of Incorporation, these By-laws may be amended by the
affirmative vote of the holders of at least a majority of the voting power of
the then outstanding Voting Stock, voting together as a single class at any
annual or special meeting of the stockholders, PROVIDED that notice of intention
to amend shall have been contained in the notice of the meeting.
SECTION 9.02. BY THE BOARD OF DIRECTORS. The Board of Directors by
a majority vote of the whole Board of Directors at any meeting may amend these
By-laws, including by-laws adopted by the stockholders, but the stockholders
may, except as otherwise provided by statute or the Certificate of
Incorporation, from time to time specify particular provisions of the By-laws
which shall not be amended by the Board of Directors.
13
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-3.4
<SEQUENCE>5
<FILENAME>a2040779zex-3_4.txt
<DESCRIPTION>EXHIBIT 3.4
<TEXT>
<PAGE>
Exhibit 3.4
Amendments to the By-Laws of Sealed Air Corporation, effective November 2, 2000
RESOLVED that Sections 2.05, 3.07, 3.08, 3.10 and
6.01 of the By-Laws of the Corporation shall be and are
amended to read in their entirety as shown below:
SECTION 2.05. SPECIAL MEETINGS. Special
meetings of the stockholders may be called by the
chief executive officer or the president or by
resolution of the Board of Directors and, subject to
the procedures set forth in this section, shall be
called by the chief executive officer or the
secretary at the request in writing of stockholders
owning a majority of the voting power of the then
outstanding Voting Stock. Any such resolution or
request shall state the purpose or purposes of the
proposed meeting. Such meeting shall be held at such
time and date as may be fixed by the Board of
Directors. The Board of Directors may postpone fixing
the time and date of a special meeting to be held at
the request of stockholders in order to allow the
secretary to determine the validity of such request,
PROVIDED, that if such request is determined to be
valid, then the Board of Directors shall fix the date
of such special meeting to be no later than 90 days
after such determination. For the purposes of these
By-laws, the term "Voting Stock" shall have the
meaning of such term set forth in the Certificate of
Incorporation or, if not defined therein, "Voting
Stock" shall mean the outstanding shares of capital
stock of the Corporation entitled to vote generally
in the election of directors.
SECTION 3.07. SPECIAL MEETINGS. Special
meetings of the Board of Directors may be called by
the chief executive officer or the president and
shall be called by the chief executive officer or the
secretary on the written request of at least two
directors. Notice of special meetings of the Board of
Directors shall be given to each director at least
three calendar days before the meeting if by mail or
at least the calendar day before the meeting if given
in person or by telephone, facsimile, telegraph,
telex or similar means of electronic transmission.
The notice need not specify the business to be
transacted.
SECTION 3.08. EMERGENCY MEETINGS. In the
event of an emergency which in the judgment of the
chief executive officer or the president requires
immediate action, a special meeting may be convened
without notice, consisting of those directors who are
immediately available in person or by telephone and
can be joined in the meeting in person or by
conference telephone. The actions taken at such a
meeting
<PAGE>
shall be valid if at least a quorum of the directors
participates either personally or by conference
telephone.
SECTION 3.10. ORGANIZATION. The chief
executive officer shall preside at meetings of the
Board of Directors.
SECTION 6.01. ISSUANCE. The stock of the
Corporation shall be represented by certificates,
PROVIDED that the Board of Directors may provide by
resolution for any or all of the stock to be
uncertificated shares. Notwithstanding any resolution
by the board of directors providing for
uncertificated shares, every holder of stock in the
Corporation represented by certificates and, upon
request, every holder of uncertificated shares in the
Corporation shall be entitled to have a certificate
signed by, or in the name of the Corporation by, the
chairman or vice chairman of the board, if any, or
the president or a vice president and the treasurer
or an assistant treasurer or the secretary or an
assistant secretary of the Corporation, certifying
the number of shares owned by such holder in the
Corporation.
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-3.5
<SEQUENCE>6
<FILENAME>a2040779zex-3_5.txt
<DESCRIPTION>EXHIBIT 3.5
<TEXT>
<PAGE>
Exhibit 3.5
Amendment to the By-Laws of Sealed Air Corporation, effective
February 8, 2001.
RESOLVED that a new Section 2.13 shall be and is
added to the By-Laws of the Corporation that shall read as
follows:
SECTION 2.13. NOTICE BY ELECTRONIC
TRANSMISSION. Without limiting the manner by which
notice otherwise may be given effectively to
stockholders, any notice to stockholders given by the
Corporation under any law, the Certificate of
Incorporation or these By-laws shall be effective if
given by a form of electronic transmission then
consented to by the stockholder to whom the notice is
given.
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.8
<SEQUENCE>7
<FILENAME>a2040779zex-10_8.txt
<DESCRIPTION>EXHIBIT 10.8
<TEXT>
<PAGE>
Exhibit 10.8
SECTION 162(M) OFFICER
CONTINGENT STOCK PURCHASE AGREEMENT
AGREEMENT dated as of between SEALED AIR CORPORATION, a Delaware
corporation (the "Corporation"), and (the "Employee").
The Employee is now an officer of the Corporation and has been selected by
the Organization and Compensation Committee (the "Committee") of the Board of
Directors of the Corporation as one who is in a position to make a significant
contribution to the growth and success of the Corporation. Pursuant to the
Contingent Stock Plan of Sealed Air Corporation (the "Plan"), the Corporation
desires to provide an incentive to the Employee which will permit him to share
directly in the growth of the Corporation and to further identify his interests
with those of the stockholders of the Corporation.
NOW, THEREFORE, the Corporation and the Employee mutually agree as
follows:
SECTION 1. PURCHASE AND SALE OF STOCK
Subject to the terms and conditions hereinafter set forth, the Corporation
hereby sells to the Employee and the Employee purchases from the Corporation * *
shares of the $0.10 par value Common Stock of the Corporation ("Common Stock")
for a purchase price of $1.00 per share (subject to adjustment pursuant to
Section 7 of the Plan) (the "Issue Price"), receipt of which the Corporation
hereby acknowledges. The Corporation will deliver to the Employee a certificate
representing such shares of Common Stock within a reasonable time after
execution of this Agreement.
1
<PAGE>
SECTION 2. REPRESENTATION
The Corporation represents that all shares of Common Stock issued pursuant
to this Agreement will be duly authorized, validly issued, fully-paid and
nonassessable.
SECTION 3. REPURCHASE OPTION AND PERIOD OF RESTRICTION
During the period beginning on the date of this Agreement and ending on
the third anniversary of such date (the "Option Period"), the Common Stock
issued pursuant to this Agreement shall be subject to an option (the "Repurchase
Option") in favor of the Corporation to reacquire such Common Stock at a price
per share equal to the Issue Price. The Corporation shall have the right to
extend the period during which the Repurchase Option may become exercisable (the
"Extended Option Period") for such number of the shares (the "Extended Option
Shares") covered by this Agreement as shall be determined as described below.
Such right, which may be exercised more than once, shall be exercised by notice
(the "Extension Notice") to the Employee no later than the end of the Option
Period for the first Extended Option Period, or the then-current Extended Option
Period for any subsequent Extended Option Period, of the number of shares that
the Corporation designates as Extended Option Shares that shall remain subject
to the Repurchase Option through the next Extended Option Period. The number of
shares so designated as Extended Option Shares shall be determined by the
Corporation in its sole discretion based upon its estimate of the number of
shares then remaining subject to the Repurchase Option for which the related
compensation expense may exceed the Corporation's deduction limit under Section
162(m) of the Internal Revenue Code (based upon the assumption that the Employee
is a "covered employee" as that term is defined in such Section) for the taxable
year in which the Option Period or the then-current Extended Option Period, as
the case may be, ends after estimating all other compensation expected to be
paid to the Employee for such year.
2
<PAGE>
The term "Extended Option Period" shall mean, with respect to the first Extended
Option Period, the period ending on March 1 of the taxable year next following
the taxable year in which the Option Period ends or such later date as the
Corporation may designate in the first Extension Notice and, with respect to
each subsequent Extended Option Period, shall mean the period ending on March 1
of the next succeeding taxable year or such later date as the Corporation may
designate in the applicable Extension Notice. None of the shares of Common Stock
issued pursuant to this Agreement nor any interest therein shall be sold,
transferred or encumbered until the Repurchase Option as to such shares may no
longer become exercisable. The Repurchase Option shall become exercisable during
the Option Period or any Extended Option Period, as the case may be, upon the
termination of employment of the Employee with the Corporation or any of its
subsidiaries other than as a result of the Employee's death or permanent and
total disability.
SECTION 4. EXERCISE OF THE REPURCHASE OPTION
The Repurchase Option shall be exercised in whole or in part by the
Corporation, if at all, by its sending written notice of such exercise to the
Employee at the address specified in or pursuant to Section 10 within 120 days
after the Employee's termination of employment. Such notice, which may be
delivered in person or sent by registered or certified mail, postage prepaid, or
by any other delivery service that provides written confirmation of delivery,
shall also set forth the address to which and the date on which the certificates
representing the Common Stock in respect of which the Repurchase Option is being
exercised, duly endorsed for transfer, should be sent, unless such certificates
are being held by the Corporation. The date specified shall not be less than ten
days nor more than thirty days from the date of such notice. The Employee or his
successor in interest with respect to such shares shall have no further rights
as a stockholder from and after the date so specified in such notice and agrees
that the Common Stock represented by
3
<PAGE>
such certificate shall be deemed canceled and returned to the treasury of the
Corporation and that the Employee will have no further incidents of ownership,
including the right to receive dividends or other distributions. If the
certificates are duly delivered in accordance with the written notice, the
Corporation shall promptly send to the Employee its check in the amount of the
Issue Price for such shares. The Corporation shall affix to the certificates any
required stock transfer stamps. If the certificates are not so delivered, the
Corporation shall deposit the required amount of payment in an escrow account in
the name of the Employee to be held therein until such certificates are
delivered to the Corporation and the Corporation shall immediately advise its
transfer agent of such action. In addition, if the certificates are not so
delivered, the Employee shall repay to the Corporation any dividends or other
distributions which may have become payable of record on or after the date on
which the Employee was required to deliver the certificates to the Corporation
and agrees to reimburse the Corporation all of its expenses (including
attorneys' fees) incurred in connection with any steps the Corporation may take
to cancel the certificates or to obtain the repayment of such dividends or other
distributions, or both.
SECTION 5. LEGEND ON STOCK CERTIFICATES
Every certificate of Common Stock issued pursuant to this Agreement shall,
so long as the restrictions described in Section 3 remain in effect as to any of
the shares covered by such certificate, bear a legend in substantially the
following form:
This certificate and the shares represented hereby are held
subject to the terms of the Contingent Stock Plan of Sealed Air
Corporation which Plan provides that the shares issued pursuant
thereto are subject to an option in favor of Sealed Air Corporation
to reacquire such shares at a price which may be significantly lower
than their fair market value and that neither such shares nor any
interest therein may be sold, transferred or encumbered until the
expiration of such option. If such option is exercised, the holder
of the shares represented by this certificate will have no further
rights with respect to such shares and this certificate will be
deemed void. A copy of the Contingent Stock Plan is available
4
<PAGE>
for inspection at the executive offices of Sealed Air Corporation.
and shall have in effect a stop-transfer order with respect thereto. Upon
expiration of the Repurchase Option as to any of the shares covered by a
certificate of Common Stock issued pursuant to this Agreement, the Employee may
surrender to the Corporation the certificate representing such shares in
exchange for a new certificate or certificates free of such legend for the
shares for which the Repurchase Option has expired, PROVIDED that the
Corporation shall issue a certificate or certificates bearing such legend for
any of the shares covered by the surrendered certificate for which the
Repurchase Option has not yet expired.
SECTION 6. GOVERNMENT AND OTHER REGULATIONS AND RESTRICTIONS
The obligations of the Corporation to issue Common Stock upon execution of
this Agreement shall be subject to all applicable laws, rules and regulations
and to such approvals by governmental agencies as may be required. The Employee
consents to the imprinting of the following legend on any certificate or
certificates evidencing such shares and to the entry of a stop-transfer order
with respect thereto in the records of the Corporation's transfer agent:
The shares represented by this certificate may be sold, transferred
or otherwise disposed of only if registered under the Securities Act of
1933, as amended, or if in the opinion of counsel to Sealed Air
Corporation, an exemption from registration is available.
SECTION 7. REGISTRATION OF SHARES
The Corporation shall be under no obligation to register any shares of
Common Stock under the Securities Act of 1933.
SECTION 8. NO RIGHTS IN COMMON STOCK
The Employee shall not have any interest in or be entitled to any voting
rights or dividends or other rights or privileges of stockholders of the
Corporation with respect to any shares of Common Stock issued pursuant to this
Agreement until the shares of Common Stock
5
<PAGE>
are actually issued to the Employee and then only from the date the Employee
becomes the record owner thereof.
SECTION 9. INJUNCTIVE RELIEF
In addition to any other rights or remedies available to the Corporation
as a result of the breach of the Employee's obligations hereunder, the
Corporation shall be entitled to enforcement of such obligations by an
injunction or a decree of specific performance from a court with appropriate
jurisdiction and, in the event that the Corporation is successful in any suit or
proceeding brought or instituted by the Corporation to enforce any of the
provisions of this Agreement or on account of any damages sustained by the
Corporation by reason of the violation by the Employee of any of the terms and
conditions of this Agreement to be performed by the Employee, the Employee
agrees to pay to the Corporation all costs and expenses including attorneys'
fees reasonably incurred by the Corporation.
SECTION 10. NOTICES
Any notice which either party hereto may be required or permitted to give
to the other shall be in writing and, except as otherwise required herein, may
be delivered personally or by mail to the Corporation at Park 80 East, Saddle
Brook, New Jersey 07663, attention of the Secretary of the Corporation, or to
the Employee at the address set forth below or at such other address as either
party may designate by notice to the other.
SECTION 11. SUBSIDIARIES
The subsidiaries of the Corporation referred to in this Agreement are
those corporations, joint ventures or other entities in which the Corporation
owns, directly or indirectly, in the aggregate at least 50 percent of the voting
power of the classes of stock of such entity entitled to
6
<PAGE>
vote and those partnerships, joint ventures and other entities in which the
Corporation owns, directly or indirectly, a 50% or more interest in the capital
account or earnings.
SECTION 12. ADJUSTMENTS
In the event of changes in the Common Stock of the Corporation after the
date of this Agreement by reason of any stock dividend, split-up, combination of
shares, reclassification, recapitalization, merger, consolidation,
reorganization, or liquidation: (a) the Repurchase Option and the restrictions
described in Section 3 and the requirement of a legend on stock certificates as
described in Sections 5 and 6 shall apply to any securities issued in connection
with any such change in respect of Common Stock issued pursuant to this
Agreement, and (b) appropriate adjustments shall be made by the Committee as to
(i) the number of shares to be delivered and the price per share to be paid by
the Corporation upon the exercise, in whole or in part, of the Repurchase
Option, (ii) the number of shares to be delivered and the Issue Price where such
change occurs after the date of this Agreement but before the date the stock
covered by this Agreement is delivered, and (iii) the number and class of shares
available under the Plan in the aggregate.
SECTION 13. SUCCESSORS
The provisions of this Agreement shall be binding upon and inure to the
benefit of all successors of the Employee, including, without limitation, his
estate and the executors, administrators or trustees thereof, his heirs and
legatees and any receiver, trustee in bankruptcy or representative of his
creditors.
SECTION 14. CORPORATION'S RIGHT TO TERMINATE EMPLOYMENT
Nothing contained in this Agreement shall confer upon the Employee a right
to continue in the employ of the Corporation or any of its subsidiaries or
interfere in any way with the right
7
<PAGE>
of the Corporation or any of its subsidiaries to terminate the employment of the
Employee at any time, with or without cause.
SECTION 15. PAYMENT OF WITHHOLDING TAX
If, in the opinion of counsel for the Corporation, any federal, state or
local taxes or any other charges may now or later be required by law to be
withheld by the Corporation or one of its subsidiaries from the wages or salary
of the Employee by reason of this Agreement or otherwise with respect to the
Common Stock governed hereby, the Employee agrees to pay to the Corporation or
such subsidiary, as the case may be, on five days written demand from the
Corporation or such subsidiary an amount equal to such withholding tax or
charge.
SECTION 16. ACTION BY CORPORATION
Neither the existence of this Agreement nor the issuance of Common Stock
pursuant hereto shall impair the right of the Corporation or its stockholders to
make or effect any of the adjustments, recapitalizations or other changes in the
Common Stock referred to in Section 12, any change in the Corporation's
business, any issuance of debt obligations or stock by the Corporation or any
grant of options with respect to stock of the Corporation.
SECTION 17. INTERPRETATION
The Employee agrees that all questions of interpretation and
administration of this Agreement shall be determined by the Committee in its
sole discretion and such determination shall be final, binding and conclusive
upon him. If the Committee is not acting, its functions shall be performed by
the Board of Directors of the Corporation, and each reference in this Agreement
to the Committee shall, in that event, be deemed to refer to the Board of
Directors.
8
<PAGE>
SECTION 18. APPLICABLE LAW
This Agreement shall be governed and construed in accordance with the laws
of the State of Delaware.
SECTION 19. TERMS AND CONDITIONS OF CONTINGENT STOCK PLAN OF SEALED AIR
CORPORATION
The authority of the Corporation to enter into this Agreement and the
issuance of shares of Common Stock pursuant hereto is derived exclusively from
the Plan and from a resolution of the Committee granting the Employee the right
to purchase shares of Common Stock pursuant to the Plan (the "Resolution"). In
the event that any terms or conditions of this Agreement are in conflict with
any terms or conditions of the Plan or of the Resolution, the terms and
conditions of the Plan or Resolution shall control.
IN WITNESS WHEREOF, the Corporation has caused this Agreement to be duly
executed under its corporate seal and the Employee has hereunto set his hand and
seal, all as of the day and year first above written.
SEALED AIR CORPORATION
By
----------------------------------
[Corporate Seal]
Attest:
- --------------------------------
Secretary
------------------------------[L.S.]
Employee
Address of Employee:
-----------------------------------
9
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.20
<SEQUENCE>8
<FILENAME>a2040779zex-10_20.txt
<DESCRIPTION>EXHIBIT 10.20
<TEXT>
<PAGE>
Exhibit 10.20
AGREEMENT AND RELEASE
December 13, 2000
TO: Leonard R. Byrne
FROM: William V. Hickey
This memorandum sets forth our agreement related to your leaving employment with
Sealed Air Corporation and its subsidiary, Cryovac Inc. (collectively "Sealed
Air").
1. EMPLOYMENT
We confirm that your last date of active employment will be June 30,
2001. Your salary will continue until that date and your active Sealed
Air employee benefit coverages will also continue until that date
(provided you continue to pay any required premiums). Also, certain
benefit coverages will continue during the period that you are
receiving severance payments (see Section 3). If you have any questions
regarding Sealed Air employee benefits, please refer to the appropriate
Summary Plan Descriptions or call Don Watt at Sealed Air's Park 80
Office in Saddle Brook, New Jersey.
You have advised that you will resign as an officer of Sealed Air
Corporation (and from all positions you hold as officer or director of
any of Sealed Air Corporation's subsidiaries) as of December 31, 2000,
and that you do not wish to be considered a candidate for appointment
to any of these positions at any time thereafter, even though you will
continue to serve as an employee until June 30, 2001.
<PAGE>
-2-
2. UNUSED VACATION PAYMENT
You will receive a lump sum payment for any accrued 2001 vacation time
remaining unused as of your last date of active employment in
accordance with Sealed Air's vacation policy. Since you were hired
prior to January 1, 1983, you will also be paid the additional vacation
committed at the time of accrual conversion, if not already paid or
used. This payment for unused vacation will be made in the month
following your last day of active employment and will be subject to
legally required and authorized deductions.
3. SEVERANCE BENEFITS
a.) You will receive one and one-half weeks pay for each year
of service plus an additional 13 weeks for a total of 65 weeks
of severance pay. You will receive severance pay at your
current base pay level of $23,750.00 per month (subject to
legally required and authorized deductions) during the period
commencing immediately after your last date of active
employment and ending on September 27, 2002. Payments will be
made on regularly scheduled payroll dates.
b.) During the period that you are receiving severance pay,
you will continue to be eligible to participate in Sealed
Air's Medical and Dental coverages, provided you continue to
make any required contributions and the plans continue to be
available to employees.
c.) The period that you receive severance payments hereunder
will be considered service and active employment under the W.
R. Grace & Co. Stock Incentive Plans, subject to the approval
of such approach by the Organization and Compensation
Committee (the "Compensation Committee") of the Board of
Directors of Sealed Air Corporation. The period that you
receive severance benefits hereunder will also be considered
continued employment for the purpose of payment of your
deferred compensation account under the Compensation Deferral
Agreement entered into as of September 20, 2000 between you
and Sealed Air Corporation.
The provisions of this Paragraph (c) will put you in the same
position as an active employee who retires on the date your
severance payments ends with regard to the specific plan
provisions mentioned in this Paragraph (c).
You agree that you will be solely responsible for any
federal, state or local income taxes or property taxes that
accrue as a result of the above.
4. CONTINUATION OF MEDICAL AND DENTAL COVERAGE AFTER SEVERANCE PERIOD
<PAGE>
-3-
At the time you are to receive your last severance payment, you will
be notified of your right to elect coverage under the Sealed Air
Medical and Dental Plans by paying the full cost of such coverage
(which is sometimes called "COBRA Coverage") for a period of up to
eighteen months after your severance payments cease. We understand
that you have the right to start coverage under the W. R. Grace & Co.
retiree medical plan whenever you elect such coverage to start. If W.
R. Grace & Co. retiree medical plan should cease to be available to
you (except if you cancel such coverage or stop paying for such
coverage), then you may enroll in Sealed Air's Retiree Medical Plan as
then in effect. Your cost for such retiree medical coverage in Sealed
Air's Retiree Medical Plan will be the full cost of such benefits
rather than the special transitional rate provision that applies to
certain Cryovac employees whose combination of age and service on
March 31, 1998 totaled 70 and more, except that if Sealed Air offers
eligibility at the special transitional rate provision to those
Cryovac employees who met such age and service criterion but are
eligible to participate in the retiree medical plan provided by W. R.
Grace & Co., then you will also be offered such special transitional
rate provision.
5. OTHER BENEFIT PLANS
Your participation in all employee benefit plans and programs other
than those specifically referred to in this Agreement after you are no
longer actively employed shall be governed by the terms of each of
those plans and programs. As noted above, if you have any questions
regarding Sealed Air employee benefits, please refer to the
appropriate Summary Plan Descriptions or call Don Watt at Sealed Air's
Park 80 Office in Saddle Brook, New Jersey.
You will not be eligible for a 2001 contribution to the Profit Sharing
Plan since you will not be actively employed (as provided in that
Plan) on December 31, 2001.
Subject to the provisions of Section 3(c) above, your Deferred
Compensation Accounts will be paid to you in accordance with your
original elections.
6. BONUSES
Your 2000 bonus will be based on the attainment of the goals
established by the Compensation Committee in February 2000 under
Sealed Air's Performance-Based Compensation Program. Assuming those
goals are attained, your 2000 bonus will also be based on your
individual performance and the performance of Sealed Air and the
Cryovac Division during the year 2000. Your 2001 bonus will be
pro-rated based on the months of your active employment during 2001.
Your 2001 bonus objectives will be based on the corporate and business
unit performance for the entire bonus period, as well as your
individual performance during the portion of the year during which you
are actively employed. Your 2001 bonus payment will be made at the
same time as such payments are made to active employees. You will not
be eligible for a bonus for 2002.
<PAGE>
-4-
7. CONTINGENT STOCK AWARD
On April 2, 1998, you were awarded the right to purchase 11,500 shares
of Sealed Air Common Stock under the Contingent Stock Plan of Sealed
Air Corporation. As provided in such Plan, such shares were issued
subject to Sealed Air's right to re-acquire such shares if your
employment ended prior to June 1, 2001. Since your last date of active
employment will be June 30, 2001, Sealed Air's right to repurchase
such shares of Common Stock will expire during your active employment
under the terms of the original award.
In addition, on April 22, 1999, you were awarded the right to purchase
13,500 shares of Sealed Air Common Stock under the Contingent Stock
Plan of Sealed Air Corporation. As provided for in such Plan, such
shares were issued subject to Sealed Air's right to re-acquire such
shares if your employment ended prior to April 22, 2002. The period
ending on April 22, 2002 is referred to in this letter as the
"Repurchase Period". Subject to the approval of the Compensation
Committee, Sealed Air will forego its right to repurchase such shares
of Common Stock upon termination of your employment on the terms and
conditions set forth below.
The 13,500 shares referred to in the preceding paragraph (the
"Retained Shares") will remain subject to Sealed Air's option to
repurchase such shares at your purchase price of $1.00 per share
through the Repurchase Period. Such option will become exercisable
only if you breach any of your obligations referred to in Sections 8
or 11 during the Repurchase Period. You agree that Sealed Air shall
also be entitled to enforce any other rights or remedies available to
it upon such breach. You agree that you will not sell, transfer or
encumber the Retained Shares during the Repurchase Period. You also
agree that Sealed Air may place a legend on the certificate
representing the Retained Shares indicating (1) that during the
Repurchase Period the retained shares cannot be sold, transferred or
encumbered, and (2) that Sealed Air has the right to repurchase the
Retained Shares in the event of your breach of such obligations during
the Repurchase Period. Upon any of the changes in the Common Stock
described in Section 15 of the Contingent Stock Plan, the restriction,
option and legend described in this paragraph shall apply to any
securities issued in connection with any such change in respect to the
Retained Shares. Following expiration of the Repurchase Period, if you
comply with such obligations, you may surrender to Sealed Air the
certificate representing the Retained Shares in exchange for a new
certificate free of the legend or for a statement from Sealed Air
representing the Retained Shares in book entry form free of such
legend.
8. OBLIGATIONS UNDER THE "1969 AGREEMENT" AND STATE LAW
Because of your significant management role in Cryovac's business for
a number of years and your position since March 31, 1998 as one of
Sealed Air Corporation's executive officers, you hold significant
confidential proprietary information of Sealed Air such as information
about the finances, business plans and programs, research and
development
<PAGE>
-5-
projects, products, manufacturing processes, raw materials, suppliers,
customers, marketing and sales of Sealed Air Corporation and Cryovac,
Inc., and their respective subsidiaries, and the predecessor companies
of such companies. You acknowledge and agree that disclosure to or use
by anyone other than Sealed Air of such information could cause
substantial damage to Sealed Air. You also understand and agree that
after you cease to be employed by Sealed Air, you remain subject to
the obligations under the agreement that you signed on July 28, 1969,
with W. R. Grace & Co., a Connecticut corporation (the "1969
Agreement"), except as amended under Section 11 below and except that
Sealed Air Corporation shall be considered the Company under the 1969
Agreement. You also understand that this memo and the 1969 Agreement
will not affect your obligations under the South Carolina Uniform
Trade Secrets Law or any other applicable obligations that may limit
your disclosure or use of Sealed Air's confidential information.
9. RESPONSIBILITIES DURING TRANSITION PERIOD
During a suitable transition period, which shall end no later than the
completion of the severance period, you agree to make yourself
available for reasonable amounts of time to support the smooth
transition of the management of the Cryovac business. Also, through
the completion of your current term as President of the FPA, you will
continue to represent Sealed Air in various industry groups and
activities, including FPA, AMI, National Chicken Council, FPM & SA,
and Clemson University. During this period, Sealed Air will reimburse
you for reasonable and customary travel and entertainment expenses
incurred in such representation consistent with Sealed Air's employee
travel and entertainment expense policy.
10. CONSULTING SERVICES
At the completion of the severance period on September 27, 2002,
Sealed Air may be interested in continuing to utilize your knowledge
and expertise in the business and industry for some period thereafter.
At that time, Sealed Air may retain your services as a consultant for
a period of up to one year at a rate and on terms to be mutually
agreed upon. Neither you nor Sealed Air shall have any obligation to
enter into such a consulting arrangement, however.
11. NON-COMPETITION AGREEMENT
As part of this agreement, and in consideration for the severance
payments to be received, you agree that, except with Sealed Air
Corporation's consent, you will not engage, assist, or have any active
interest in any business (directly or indirectly, individually or in
combination with another or others, or as principal, partner, agent,
contractor, consultant, employee, officer or shareholder of a
corporation or otherwise) which is engaged in manufacturing, producing
and/or selling any product or products that competes with any product
manufactured or sold by Sealed Air Corporation or any of its
subsidiaries in the
<PAGE>
-6-
fields of food packaging or industrial protective packaging through
the end of the severance period, as well as during any additional
period for which you may be retained as a consultant, and for two
years thereafter. This provision shall not prohibit you from being a
shareholder who owns less than five percent of a publicly-traded
company. We agree that this non-competition agreement will replace the
non-competition provision (Section 4(b)) of the 1969 Agreement. Sealed
Air Corporation will give its consent in all cases where it has
received assurances satisfactory to it that its interests will be
properly safeguarded.
12. COMPANY CAR
You will be entitled to retain your company car during the period of
your active employment. You may purchase your company car when you
leave active employment under the terms available to employees who
leave employment in good standing. If you do not choose to purchase
your company car, you can agree to make arrangements to return the car
to Sealed Air no later than July 14, 2001, at the Duncan, South
Carolina location.
13. ENTIRE AGREEMENT AND GOVERNING LAW
This letter and the 1969 Agreement, as amended by this agreement, set
forth the entire agreement between you and Sealed Air concerning the
subject matter as discussed herein. This agreement and release shall
be governed by the laws of the state of South Carolina, without
reference to principles of conflicts of law, regardless of the
jurisdiction in which any action or proceeding may be instituted.
14. GENERAL RELEASE
In consideration for your signing this agreement, you acknowledge and
agree that Sealed Air will provide you with severance payments and
benefits to which you would not otherwise be entitled. You hereby
knowingly and voluntarily release and forever discharge the Sealed Air
Group from all claims that you may have. The Sealed Air Group includes
Sealed Air Corporation, Cryovac, Inc., Sealed Air Corporation (US),
and any and all of their past, present and future affiliates and
subsidiaries. The Sealed Air Group also includes all those entities'
past, present and future employees, officers, directors,
representatives, benefit plans, benefit plan fiduciaries and their
respective successors and assigns, whether acting in their individual
capacities or on behalf of the previously mentioned entities. You
release the Sealed Air Group from any and all claims, demands, causes
of action and liabilities of any kind. Included in this release are
claims that are known or unknown, fixed or contingent, that you may
have or claim to have, now or later, in any and all jurisdictions,
whether domestic or international, including those related in any way
to your employment or your separation from employment with the Sealed
Air Group. This release includes, but is not limited to, any claims
arising under any federal, state or local law prohibiting employment
discrimination based on race,
<PAGE>
-7-
color, national origin, sex, age, religion, disability or veteran
status. The statutory claims being released include, but are not
limited to, claims under Title VII of the Civil Rights Act of 1964,
the Civil Rights Act of 1866, the Civil Rights Act of 1991, the
Federal Rehabilitation Act, the Americans with Disabilities Act, the
Age Discrimination in Employment Act, the Older Workers Benefit
Protection Act, the Employee Retirement Income Security Act and the
South Carolina Human Affairs Law. You agree not to file a lawsuit or
initiate any other action against the Sealed Air Group to assert any
such claims. However, this release does not release your right to
enforce the terms of this Agreement.
Sealed Air releases and forever discharges you from any and all
claims, demands, causes of action and liabilities of any kind which it
may have through the date of the execution of this Agreement,
including but not limited to claims that are known or unknown, fixed
or contingent, that Sealed Air may have or claim to have, in any and
all jurisdictions whether domestic or international. However, Sealed
Air does not release or discharge its rights to enforce this
Agreement, the 1969 Agreement (as amended by this Agreement), the
South Carolina Uniform Trade Secrets Law or any other applicable
obligations that may limit your disclosure or use of Sealed Air's
confidential information.
15. ACKNOWLEDGEMENT
By signing this agreement and release, you acknowledge that:
A. You have carefully read this agreement and release and the 1969
Agreement.
B. You have had at least 21 days to consider signing this agreement
and release.
C. You have been advised to consult with a lawyer of your choice
before signing this agreement and release, and you have had a
reasonable period of time to do so.
D. You are making a voluntary, informed decision in signing this
agreement and release free of duress and coercion, and you realize
that you are forever surrendering important rights in signing this
agreement and release.
E. You understand that this agreement and release will not become
effective until the eighth day following the date on which you sign
it. Until the close of business on the seventh day after you sign it
you may revoke this agreement and release by delivering written
notification of revocation to William V. Hickey, Sealed Air
Corporation, Park 80 East, Saddle Brook, New Jersey 07663. Sealed Air
must receive your written revocation by that date and time. You
understand that if you revoke this agreement and release, you will not
receive any of the severance pay or benefits described in Section 3.
SEALED AIR CORPORATION
By: /s/ William V. Hickey
----------------------------------
<PAGE>
-8-
President and Chief Executive Officer
I HAVE READ THIS AGREEMENT AND RELEASE, I UNDERSTAND IT, AND I AGREE TO BE BOUND
BY ITS TERMS AND CONDITIONS.
By: /s/ Leonard R. Byrne
-----------------------
Leonard R. Byrne
Date: 12/24/00
----------------------
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-13
<SEQUENCE>9
<FILENAME>a2040779zex-13.txt
<DESCRIPTION>EXHIBIT 13
<TEXT>
<PAGE>
Exhibit 13
<TABLE>
<CAPTION>
SELECTED FINANCIAL DATA (1)
(In thousands of dollars, except per share data)
2000 1999 1998 1997 1996
- ----------------------------------------------------------------------------------------------------
CONSOLIDATED STATEMENT OF EARNINGS DATA:
<S> <C> <C> <C> <C> <C>
Net sales (2) $3,067,714 $2,931,853 $2,580,207 $1,875,273 $1,781,659
Gross profit 1,035,304 1,028,722 868,736 646,002 590,596
Operating profit 468,463 452,192 259,332 267,744 173,500
Earnings before income taxes 413,429 395,653 198,947 263,672 169,822
Net earnings 225,319 211,461 73,007 173,732 99,830
Series A convertible
preferred stock dividends(3) 64,266 71,422 53,921
- ----------------------------------------------------------------------------------------------------
Earnings per common share (4)
Basic $ 2.47 $ 1.69 $ 0.04 $ 2.54 $ 0.56
Diluted $ 1.93 $ 1.68 $ 0.02 $ 2.39 $ 0.55
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
CONSOLIDATED BALANCE SHEET DATA:
Working capital $ 202,512 $ 221,130 $ 309,624 $ 343,741 $ 277,583
Total assets 4,048,098 3,855,233 4,039,930 1,646,831 1,702,888
Long-term debt, less current
installments 944,453 665,116 996,526 -- --
Series A convertible
preferred stock (3) 1,392,373 1,761,662 1,791,093 -- --
Total shareholders' equity (5) 753,129 551,030 437,045 1,352,628 1,381,790
- ---------------------------------------------------------------------------------------------------
OTHER DATA:
EBIT (6) $ 477,942 $ 453,779 $ 252,576 $ 263,672 $ 169,822
Depreciation and amortization 219,641 223,399 195,954 111,080 94,380
EBITDA (7) 697,583 677,178 448,530 374,752 264,202
Capital expenditures 114,197 75,080 82,408 101,997 294,503
- ---------------------------------------------------------------------------------------------------
</TABLE>
(1) The Selected Financial Data include the operations of the Cryovac packaging
business (" Cryovac") for all periods presented. The operating results,
cash flows, assets and liabilities of old Sealed Air are included for all
periods subsequent to March 31, 1998. See Note 2 to the Consolidated
Financial Statements.
(2) The Company adopted Emerging Issues Task Force Issue No. 00-10, "Accounting
for Shipping and Handling Fees and Costs," during the fourth quarter of
2000. As a result, shipping costs have been reclassified from the Company's
net sales to its cost of sales in all periods presented. Reported net sales
amounts have increased as a result of this reclassification and cost of
sales amounts are commensurately higher.
(3) The Series A convertible preferred stock pays a cash dividend at an annual
rate of $2.00 per share, payable quarterly in arrears, and is subject to
mandatory redemption on March 31, 2018 at $50 per share, plus any accrued
and unpaid dividends to the extent that it then remains outstanding.
Dividends of $0.50 per share have been declared for each quarter following
the issuance of the shares on March 31, 1998.
(4) Prior to March 31, 1998, Cryovac did not have a separately identifiable
capital structure upon which a calculation of earnings per common share
could be based. In calculating basic and diluted earnings per common share
for periods prior to March 31, 1998, retroactive recognition has been given
to the various actions undertaken in connection with the Cryovac
Transaction. See Note 16 to the Consolidated Financial Statements.
(5) Shareholders' equity for 1996 and 1997 represents the net assets of
Cryovac.
(6) EBIT is defined as earnings before interest expense and provisions for
income taxes.
(7) EBITDA is defined as EBIT plus depreciation, goodwill amortization and
amortization of other intangible assets. EBITDA is a frequently used
measure of a company's ability to generate cash to service its obligations,
including debt service obligations, and to finance capital and other
expenditures. EBITDA does not purport to represent net income or net cash
provided by operating activities, as those terms are defined under
generally accepted accounting principles, and should not be considered as
an alternative to such measurements or as an indicator of the Company's
performance.
17
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS AND FINANCIAL
CONDITION
RESULTS OF OPERATIONS
DISCUSSION AND ANALYSIS OF OPERATING RESULTS
The Company's net sales increased 5% in 2000 compared with 1999 and 14% in 1999
compared with 1998. On a pro forma basis, net sales increased 5% in 1999
compared with 1998 (see Note 4 to the Consolidated Financial Statements).
The increase in net sales in 2000 was due primarily to higher unit volume, the
added net sales of several acquired businesses and higher average selling prices
for certain of the Company's products. Excluding the negative effect of foreign
currency translation, net sales would have increased 9% compared to 1999.
Most of the increase in net sales in 1999 on a consolidated and geographic basis
as well as most of the increase in cost of sales, marketing, administrative and
development expenses and the substantial increase in goodwill amortization were
primarily due to the inclusion of the business of old Sealed Air (see "Cryovac
Transaction" discussed below) in the entire 1999 period, but only in the last
nine months of 1998, and adjustments arising from the Cryovac Transaction. On a
pro forma basis, the increase in net sales in 1999 was due primarily to higher
unit volume. Excluding the negative effect of foreign currency translation, net
sales would have increased 7% in 1999 compared to 1998 on a pro forma basis.
Net sales from North American operations increased 6% in 2000 compared to 1999
and 16% in 1999 compared to 1998. The increase in 2000 was primarily due to
increased unit volume, higher average selling prices for certain products and
the added net sales of several acquired businesses. The increase in 1999 was due
primarily to the Cryovac Transaction. On a pro forma basis, net sales increased
5% in 1999 compared with 1998, primarily due to increased unit volume.
Substantially all of the North American net sales for each year represent net
sales from the United States.
Net sales from foreign operations represented approximately 42% of net sales in
2000, 43% in 1999 and 44% in 1998. Net sales from foreign operations increased
2% in 2000 and 11% in 1999. The increase in 2000 was primarily due to increased
unit volume, the added net sales of several small acquired businesses and, to a
lesser extent, higher average selling prices for certain products partially
offset by the negative impact of foreign currency translation, principally in
Europe. Excluding the negative impact of foreign currency translation, net sales
from foreign operations would have increased 12% in 2000. The increase in 1999
was due primarily to the Cryovac Transaction. On a pro forma basis, net sales
from foreign operations represented 43% of net sales in 1998 and increased 4% in
1999. The pro forma increase in 1999 was primarily due to higher unit volume,
and to a lesser extent, the added net sales of several acquired businesses,
partially offset by the negative effect of foreign currency translation.
Excluding the negative impact of foreign currency translation, net sales from
foreign operations in 1999 would have increased 8% on a pro forma basis.
Net sales of the Company's food packaging segment, which consists primarily of
the Company's Cryovac(R) food packaging products and Dri-Loc(R) absorbent pads,
constituted 60% of net sales in 2000, 61% in 1999 and 66% in 1998. On a pro
forma basis, net sales from the food packaging segment constituted 62% of net
sales in 1998. The balance of the net sales was comprised of products in the
Company's protective and specialty packaging segment, which consists primarily
of the Company's Instapak(R) chemicals and equipment, Cryovac(R) performance
shrink films, air cellular and polyethylene foam surface protection and
cushioning materials and protective and durable mailers and bags.
Net sales of food packaging products increased 3% in 2000 and 5% in 1999. The
increase in 2000 was due to higher unit volume, the added net sales of several
acquired businesses and higher average selling prices for certain of this
segment's products, partially offset by the negative effect of foreign currency
translation. Excluding the negative effect of foreign currency translation, net
sales would have increased 7%. The increase in 1999 was due to higher unit
volume and the Cryovac Transaction, partially offset by the negative effect of
foreign currency translation. On a pro forma basis, net sales increased 3% in
1999 compared to 1998 due primarily to higher unit volume partially offset by
the negative effect of foreign currency translation. Excluding the negative
effect of foreign currency translation, net sales on a pro forma basis would
have increased 6% in 1999.
Among the major classes of products in the food packaging segment, net sales of
flexible packaging materials and related equipment increased modestly in 2000
and 3% in 1999. The increase in 2000 was due primarily to higher unit volume
and, to a lesser extent, higher average selling prices for certain flexible
packaging materials, which was offset by the negative effect of foreign currency
translation. Excluding the negative effect of foreign currency translation, net
sales of flexible packaging materials and related equipment would have increased
5% in 2000. The increase in 1999 was due primarily to higher unit volume and the
Cryovac Transaction, partially offset by the negative effect of foreign currency
translation. On a pro forma basis, net sales increased 2% in 1999 compared to
1998 due primarily to higher unit volume, partially offset by the negative
effect of foreign currency translation. Excluding the negative effect of foreign
currency translation, net sales of flexible packaging materials and related
equipment on a pro forma basis would have increased 5% in 1999. Net sales of
rigid packaging and absorbent products increased 27% in 2000 and 22% in 1999.
18
<PAGE>
The increase in 2000 was due primarily to the added net sales of Dolphin
Packaging plc and other small businesses following their acquisitions, higher
unit volume and higher average selling prices for certain products, partially
offset by the negative effect of foreign currency translation. Excluding the
negative effect of foreign currency translation, net sales of rigid packaging
and absorbent products would have increased 30% in 2000. The increase in 1999
was primarily due to higher unit volume and the Cryovac Transaction. On a pro
forma basis, net sales increased 10% in 1999 compared to 1998 primarily due
to higher unit volume. Foreign currency translation had a minimal effect on
net sales of rigid packaging and absorbent products on a pro forma basis.
The Company currently expects that the recent outbreaks of bovine spongiform
encephalopathy (BSE or "mad-cow" disease) and foot-and-mouth disease that have
affected livestock in Europe and in certain other geographic regions could
result in slower growth or a decline in the net sales of our food packaging
products in those regions in 2001, but the Company believes that their effect on
the Company's business should dissipate as these outbreaks end and the supply of
meat in these regions resumes its normal pattern.
Net sales of protective and specialty packaging products increased 7% in 2000
and 31% in 1999. The increase in 2000 was due primarily to higher unit volume,
the added net sales of several small acquired businesses and certain higher
average selling prices for certain of the segment's products, partially offset
by the negative effect of foreign currency translation. Excluding the negative
effect of foreign currency translation, net sales would have increased 10% in
2000. The increase in 1999 was due to the Cryovac Transaction, increased unit
volume and, to a lesser extent, the added net sales of several small acquired
businesses. On a pro forma basis, net sales increased 7% in 1999 compared to
1998 due primarily to higher unit volume and, to a lesser extent, the added net
sales of several small acquired businesses partially offset by the negative
effect of foreign currency translation. Excluding the negative effect of foreign
currency translation, net sales in this segment on a pro forma basis would have
increased 8% in 1999.
Gross profit as a percentage of net sales was 33.7% in 2000, 35.1% in 1999
and 33.7% in 1998. The decrease in 2000 gross profit as a percentage of net
sales was primarily due to higher raw material prices and energy-related
costs. The increase in gross profit as a percentage of net sales in 1999 was
due to the higher level of net sales and cost reductions arising out of
improvements in the Company's operations, partially offset by certain higher
raw material prices for certain of the Company's products.
Marketing, administrative and development expenses declined 2% in 2000 and
increased 8% in 1999. The decline in 2000 was attributable to cost control
measures and the impact of foreign currency translation. The 1999 increase was
due primarily to the addition of the operating costs of old Sealed Air following
the Cryovac Transaction and integration and information system costs. Marketing,
administrative and development expenses as a percentage of net sales were 16.8%
in 2000, 18.0% in 1999 and 18.8% in 1998.
Goodwill amortization increased in each year primarily due to several small
acquisitions completed during 2000 and 1999. Amortization in the 1999 period
also increased due to amortization related to the Cryovac Transaction for the
entire 1999 period as compared to only the last nine months of 1998.
In 2000, the Company reversed $1,247,000 of its reserve related to the 1998
restructuring program and recognized a restructuring credit, as costs were
modestly less than originally anticipated. Net restructuring costs and asset
impairments were $110,792,000 in 1998. The Company's 1998 restructuring and
other charges, net, reflect a $23,610,000 special credit to operations relating
to the curtailment of certain post-retirement benefits.
Operating profit increased 4% in 2000 and 74% in 1999. These changes reflect an
increase in net sales and the changes in costs and expenses discussed above
which in the 1998 period included the effects of the Cryovac Transaction. Before
giving effect to corporate operating expenses, consisting primarily of goodwill
amortization and restructuring and other charges, net, operating profit of the
Company's food packaging segment constituted 54%, 55% and 60% of operating
profit in 2000, 1999 and 1998, respectively. The balance of operating profit
arose from the Company's protective and specialty packaging segment. Operating
profit as a percentage of net sales was 15.3% in 2000, 15.4% in 1999 and 10.1%
in 1998.
Interest expense increased in both 2000 and in 1999. The increase in 2000 was
primarily due to additional borrowings made in connection with business
acquisitions and stock repurchases made under the Company's stock repurchase
program, and higher weighted average interest rates. The 1999 increase, despite
a net paydown of debt following completion of the Cryovac Transaction, was due
to the indebtedness under the Credit Agreements, discussed below, being
outstanding for the full twelve months of 1999 versus only the last nine months
of 1998.
The changes in other income (expense), net, in each year primarily represents
foreign currency exchange losses and, in 2000, the inclusion of $10,000,000 of
fee income from a third party for the assignment of a pre-existing contract
during the third quarter.
The Company's effective income tax rates were 45.5%, 46.6% and 46.7% in 2000,
1999 and 1998, respectively. These effective tax rates were higher than
statutory rates due primarily to the non-deductibility of goodwill amortization.
The Company expects that its effective tax rate will continue to remain higher
than statutory rates for 2001 due primarily to the non-deductibility of goodwill
amortization for tax purposes. The effective tax rate in 2000 was lower than the
1999 effective tax rate primarily due to a
19
<PAGE>
decline in tax rates in certain countries. The 1998 effective rate noted
above excludes the effects of the $87,182,000 of net restructuring and other
charges and a $26,000,000 special income tax charge for the assumed
repatriation to the U.S. of the portion of the accumulated earnings of the
Company's foreign subsidiaries that were not considered to be permanently
invested in their businesses. Including these items, the effective rate for
1998 was 63.3%.
Net earnings increased 7% to $225,319,000 in 2000 compared to $211,461,000 in
1999, primarily resulting from the Company's higher operating profit in 2000.
Net earnings increased 190% to $211,461,000 in 1999 compared to $73,007,000
in 1998, primarily resulting from the Company's higher operating profit in
1999 and the absence in 1999 of the special income tax charge incurred in
1998 as discussed above. On a pro forma basis, net earnings were $81,492,000
in 1998.
Basic earnings per common share were $2.47 for 2000, $1.69 for 1999 and $0.04
for 1998. On a pro forma basis, basic earnings per common share were $0.14 in
1998. Diluted earnings per common share were $1.93 for 2000, $1.68 for 1999 and
$0.02 for 1998. On a pro forma basis, diluted earnings per common share were
$0.12 in 1998. The basic earnings per common share calculation for 2000, 1999
and 1998 include a per share gain (excess of book value over repurchase price of
preferred stock) of $0.54, $0.02 and $0.02, respectively, attributable to
repurchases of preferred stock in each of the periods. The excess of book value
over the repurchase price of the Company's Series A Preferred Stock is not
included in the calculation of diluted earnings per common share. The diluted
earnings per common share in each period were calculated assuming the conversion
of the shares of preferred stock repurchased during each of the respective
periods in accordance with the Financial Accounting Standards Board's Emerging
Issues Task Force Topic D-53 guidance. Earnings per common share were calculated
in accordance with Staff Accounting Bulletin No. 98, "Computation of Earnings
Per Share," for the 1998 period, since the Company did not have a separately
identifiable capital structure upon which a calculation of earnings per common
share could be based prior to March 31, 1998. Accordingly, net earnings were
reduced for preferred stock dividends (as if such shares had been outstanding
during that year) to arrive at earnings ascribed to common shareholders.
CRYOVAC TRANSACTION
On March 31, 1998, the Company completed a multi-step transaction (the "Cryovac
Transaction"). As part of that transaction, the Cryovac packaging business
("Cryovac"), held by various direct and indirect subsidiaries of the Company,
was separated from the remaining business, and the Company and one of its
subsidiaries borrowed approximately $1,260,000,000. The remaining business,
which received the borrowed funds referred to in the preceding sentence, was
then contributed to a company now known as W. R. Grace & Co. ("New Grace"),
whose shares were distributed to the Company's stockholders. As a result, New
Grace became a separate publicly owned company. The Company and its subsidiary
retained the obligation to repay such borrowed funds. The Company recapitalized
its outstanding shares of common stock into a new common stock and a new
convertible preferred stock. A subsidiary of the Company then merged into the
former Sealed Air Corporation ("old Sealed Air"), which changed its name to
Sealed Air Corporation (US).
RESTRUCTURING PROGRAM
During the third quarter of 1998, the Company announced and began to implement a
restructuring program and recorded a pre-tax charge of $111,074,000 to recognize
the restructuring costs and related asset impairments. The portion of the 1998
restructuring and asset impairment charge applicable to the Company's food
packaging segment amounted to $97,064,000, and the portion applicable to the
protective and specialty packaging segment amounted to $14,010,000.
As part of the restructuring, the Company eliminated approximately 750
positions, or 5% of its then current workforce. As of December 31, 2000, all
restructuring actions including employee severances and asset dispositions had
been substantially completed. During the fourth quarter 2000, the Company
reversed $1,247,000 of the restructuring reserve and recognized a restructuring
credit as costs were modestly less than originally anticipated. There remains to
be paid in future periods approximately $324,000 of the original $43,000,000
estimate of cash outlays. Such remaining outlays principally relate to employee
separation costs which are expected to be paid during 2001.
The Company estimates that approximately $45,000,000 in annual operating cost
savings were realized beginning in the year 2000. The estimated $45,000,000
savings included reductions in depreciation and amortization of approximately
$8,000,000 per annum, which began in the fourth quarter of 1998, and reductions
in cash operating expenses of approximately $37,000,000 per annum that relate
primarily to payroll and related payroll tax and benefit expenses. The
reductions in cash operating expenses began upon elimination of the employee
positions. The Company estimates that approximately $30,000,000 of these cash
operating expense reductions were realized in 1999; these reductions were modest
in amount for 1998. Of the $45,000,000 estimated savings, approximately 40% was
realized from reductions in manufacturing costs and 60% was realized from
reductions in other operating costs. Additional information is included in Note
9 to the Consolidated Financial Statements.
20
<PAGE>
LIQUIDITY AND CAPITAL RESOURCES
The Company's principal sources of liquidity are cash flows from operations and
amounts available under the Company's existing lines of credit, including
principally the Credit Agreements described below.
Net cash provided by operating activities amounted to $329,413,000 in 2000,
$430,354,000 in 1999 and $411,646,000 in 1998. The decrease in 2000 was
primarily due to an increase in net earnings that was more than offset by
changes in operating assets and liabilities in the ordinary course of business.
The increase in 1999 was due to net earnings from the inclusion of the
operations of old Sealed Air for the full twelve months of 1999 as well as
increased net earnings. This increase was partially offset by changes in
operating assets and liabilities in the ordinary course of business, which
included the timing of cash payments related to the restructuring and related
charges.
Net cash used in investing activities amounted to $348,989,000 in 2000,
$97,285,000 in 1999 and $38,316,000 in 1998. In each year, the net cash used in
investing activities was used primarily for capital expenditures and
acquisitions. The increase in net cash used in 2000 was primarily due to the
higher level of capital expenditures and acquisitions in 2000. In 2000, the
Company utilized cash of $237,541,000 to complete various acquisitions. The
increase in net cash used in 1999 was due primarily to the absence in 1999 of
the cash acquired from old Sealed Air in the Cryovac Transaction, which in 1998
more than offset the cash used for other acquisitions and partially offset the
cash used for capital expenditures. The 1999 period also includes $25,811,000 of
cash used to make various small acquisitions.
Capital expenditures were $114,197,000 in 2000, $75,080,000 in 1999 and
$82,408,000 in 1998. Capital expenditures for the Company's food packaging
segment amounted to $75,773,000, $51,307,000 and $48,497,000 in 2000, 1999 and
1998, respectively, and capital expenditures for the protective and specialty
packaging segment amounted to $38,424,000, $23,773,000 and $31,487,000 in 2000,
1999 and 1998, respectively. There were no corporate capital expenditures in
2000 or 1999 compared to $2,424,000 in 1998. The changes in capital expenditures
in each year were primarily due to the management of capital planning and
project spending. The Company currently anticipates that capital expenditures in
2001 will be in the range of $150,000,000.
Net cash provided by financing activities amounted to $7,671,000 in 2000. Net
cash used in financing activities amounted to $367,183,000 in 1999 and
$325,093,000 in 1998. In the 2000 period, the Company incurred net borrowings of
$420,869,000 while in the 1999 period the Company made net debt repayments of
$256,262,000. The net borrowings made in the 2000 period were incurred primarily
to finance a portion of the cost of acquisitions and repurchases of shares of
the Company's outstanding convertible preferred stock and common stock. The net
cash used in financing activities in 1999 and 1998 was used primarily to
refinance or repay outstanding debt, principally under the Credit Agreements, to
pay dividends on the Company's Series A Preferred Stock and to repurchase shares
of the Company's preferred stock and common stock.
During 2000, the Company repurchased 7,384,637 shares of its preferred stock and
494,737 shares of its common stock at a cost of approximately $323,948,000 and
$22,873,000, respectively. During 1999, the Company repurchased 582,400 shares
of its preferred stock and 251,000 shares of its common stock at a cost of
approximately $27,552,000 and $14,189,000, respectively, pursuant to a share
repurchase program adopted by its Board of Directors. As of December 31, 2000,
the total number of shares of preferred stock and common stock authorized to be
repurchased under this program was the equivalent of approximately 16,977,000
shares of common stock on an as-converted basis, of which approximately
8,465,000 had been repurchased, leaving the equivalent of approximately
8,512,000 shares of common stock on an as-converted basis available for
repurchase under the program. The 1999 period also reflects the issuance of the
Senior Notes and the Euro Notes, described below, the net proceeds of which
(approximately $500,491,000) were used to refinance debt under the Credit
Agreements. Cash flows from financing activities in 1998 also reflected the
proceeds from borrowings under the Credit Agreements, offset by the transfer of
funds in connection with the Cryovac Transaction.
At December 31, 2000, the Company had working capital of $202,512,000, or 5% of
total assets, compared to working capital of $221,130,000, or 6% of total
assets, at December 31, 1999. The decline in working capital in 2000 is due to
an increase in short-term borrowings partially offset by an increase in accounts
receivable and inventory and a decrease in accounts payable and accrued
liabilities. The increase in short-term borrowings is primarily attributable to
borrowings associated with business acquisitions completed in 2000 as well as
stock purchases made in conjunction with the Company's stock repurchase program.
All other changes in working capital accounts were in the ordinary course of
business, which included the timing of cash payments. The decline in working
capital in 1999 reflects an increase in short-term borrowings and lower levels
of cash and cash equivalents and inventories. These changes were partially
offset by an increase in notes and accounts receivable as well as a reduction in
other current liabilities relating primarily to payments made during 1999
related to restructuring.
The ratio of current assets to current liabilities (current ratio) was 1.3 at
December 31, 2000 compared with 1.4 at December 31, 1999. The ratio of current
assets less inventory to current liabilities (quick ratio) was 0.8 at December
31, 2000 and 1.0 at December 31, 1999. The decreases in these ratios in 2000
resulted
21
<PAGE>
primarily from the decreases in working capital discussed above.
At both December 31, 2000 and December 31, 1999, the Company's outstanding debt
consisted primarily of borrowings made under the Credit Agreements, the Senior
Notes, and the Euro Notes and certain other loans incurred by the Company's
subsidiaries.
During 1999, the Company issued euro 200,000,000 (approximately $205,000,000, at
the then current exchange rate) aggregate principal amount of 7-year 5.625%
notes (the "Euro Notes") and $300,000,000 aggregate principal amount of 10-year
6.95% senior notes (the "Senior Notes"). The net proceeds from these note
issuances of approximately $500,491,000 in the aggregate were used to refinance
outstanding borrowings under the Credit Agreements. As of December 31, 2000, the
Company had no outstanding interest rate swap agreements open against either of
these issues of debt. At December 31, 1999, the Company had outstanding certain
forward-starting interest rate swap agreements that had the effect of converting
a portion of these fixed rate notes to floating rate debt at U.S.
dollar-denominated rates which ranged from 6.2% to 6.5%, and euro-denominated
rates which ranged from 3.8% to 4.4%.
The Company's two principal credit agreements (the "Credit Agreements") are a
5-year $525,000,000 revolving credit facility that expires on March 30, 2003
(included in long-term debt) and a 364-day $375,000,000 revolving credit
facility that expires on March 26, 2001 (included in short-term borrowings).
The Company intends to replace this expiring credit facility with a new
364-day revolving credit facility on substantially similar terms but in a
lower facility amount than the existing 364-day facility. The Company
believes that the lower facility amount together with its other resources
will be satisfactory for its currently anticipated financing needs. As of
December 31, 2000 and 1999, outstanding borrowings were $456,263,000 and
$160,978,000, respectively, under the 5-year revolving credit facility and
$127,885,000 and $38,342,000, respectively, under the 364-day revolving
credit facility. The Credit Agreements provide that the Company and certain
of its subsidiaries may borrow for various purposes, including the
refinancing of existing debt, the provision of working capital and other
general corporate needs, including acquisitions, repurchase of the Company's
outstanding common and preferred stock and capital expenditures. Amounts
repaid under the Credit Agreements may be reborrowed from time to time. As of
December 31, 2000, facility fees were payable on the total amounts available
under the Credit Agreements and amounted to .095% and .100% per annum under
the 5-year revolving credit facility and the 364-day revolving credit
facility, respectively.
The Company's obligations under the Credit Agreements bear interest at floating
rates. The weighted average interest rate under the Credit Agreements was
approximately 7.0% at December 31, 2000 and 6.0% at December 31, 1999. The
Company had no interest rate and currency swaps outstanding at December 31, 2000
related to its obligations under the Credit Agreements but had certain interest
rate and currency swap agreements outstanding at December 31, 1999. These
agreements had the effect of fixing or adjusting the interest rates on a portion
of such debt. The weighted average interest rate at December 31, 1999 did not
change significantly as a result of these derivative financial instruments.
The Credit Agreements provide for changes in borrowing margins based on
financial criteria and the Company's senior unsecured debt ratings. The Credit
Agreements, Senior Notes and Euro Notes impose certain limitations on the
operations of the Company and certain of its subsidiaries. The Company was in
compliance with these requirements as of December 31, 2000.
At December 31, 2000, the Company had available committed and uncommitted
lines of credit, including those available under the Credit Agreements, of
approximately $1,300,000,000 of which approximately $500,000,000 were unused.
The Series A Preferred Stock votes with the common stock on an as-converted
basis, pays a cash dividend, as declared by the Company's Board of Directors, at
an annual rate of $2.00 per share, payable quarterly in arrears, becomes
redeemable at the option of the Company beginning March 31, 2001, subject to
certain conditions, and will be subject to mandatory redemption on March 31,
2018 at $50.00 per share, plus any accrued and unpaid dividends to the extent
that it then remains outstanding. The Company's preferred stock is convertible
into shares of its common stock at a rate of approximately 0.885 share of common
stock for each share of preferred stock. Because it is subject to mandatory
redemption, the Series A Preferred Stock is classified outside of the
shareholders' equity section of the balance sheet.
The Company's shareholders' equity was $753,129,000 at December 31, 2000
compared to $551,030,000 at December 31, 1999. Shareholders' equity increased in
2000 and 1999 due to the Company's net earnings of $225,319,000 and $211,461,000
and the excess of book value over repurchase price recognized in connection with
the preferred stock repurchases of $45,283,000 and $1,568,000, which were
partially offset by preferred stock dividends of $64,266,000 and $71,422,000 and
by additional foreign currency translation adjustments of $16,258,000 and
$46,678,000, respectively, in such years.
OTHER MATTERS
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Company is exposed to market risk from changes in interest rates and foreign
currency exchange rates, which may
22
<PAGE>
adversely affect its results of operations and financial condition. The
Company seeks to minimize these risks through regular operating and financing
activities and, when deemed appropriate, through the use of derivative
financial instruments. The Company does not purchase, hold or sell derivative
financial instruments for trading purposes.
INTEREST RATES
The fair value of the Company's fixed rate debt varies with changes in interest
rates. Generally, the fair value of fixed rate debt will increase as interest
rates fall and decrease as interest rates rise. At December 31, 2000, the
carrying value of the Company's total debt was $1,236,299,000, of which
$489,607,000 was fixed rate debt. At December 31, 1999, the carrying value of
the Company's total debt was $824,677,000 of which $502,244,000 was fixed rate
debt. The estimated fair value of the Company's total debt, which includes the
cost of replacing the Company's fixed rate debt with borrowings at current
market rates, was approximately $1,159,250,000 at December 31, 2000 compared to
$787,589,000 at December 31, 1999. A hypothetical 10% decrease in interest rates
would result in an increase in the fair value of the total debt balance at
December 31, 2000 of approximately $16,224,000.
The Company uses interest rate swaps to manage its exposure to fluctuations in
interest rates. The Company also uses interest rate collars to reduce the
Company's exposure to fluctuations in the rate of interest by limiting interest
rates to a given range. At December 31, 2000, the Company had an interest rate
collar agreement related to a foreign subsidiary's floating rate indebtedness.
This interest rate collar agreement matures in June 2001, with a notional amount
of approximately $8,000,000 compared with interest rate swap and collar
agreements with a combined aggregate notional amount of $159,000,000 at December
31, 1999. The interest rate swap agreements outstanding at December 31, 1999 had
the effect of converting a portion of the Company's fixed rate debt to floating
rate debt. As of December 31, 2000, the Company did not have a material market
risk exposure due to the interest rate collar agreement.
FOREIGN EXCHANGE CONTRACTS
The Company uses interest rate and currency swaps to limit foreign exchange
exposure and limit or adjust interest rate exposure by swapping certain
borrowings in U.S. dollars for borrowings denominated in foreign currencies. At
December 31, 2000, the Company had no interest rate and currency swap agreements
outstanding compared to an aggregate notional amount of approximately $5,000,000
at December 31, 1999.
The Company uses foreign currency forwards to fix the amount payable on certain
transactions denominated in foreign currencies. At December 31, 2000, the
Company had foreign currency forward contracts with an aggregate notional amount
of approximately $13,800,000 outstanding while at December 31, 1999, the Company
did not have any material foreign currency forward contracts outstanding. The
estimated fair value of these contracts, which represents the estimated net
payment that would be received by the Company in the event of termination of
these contracts based on the then current foreign exchange rates, was
approximately $253,000 at December 31, 2000. A hypothetical 10% adverse change
in foreign exchange rates at December 31, 2000 would cause the Company to pay
approximately $1,159,000 to terminate these contracts.
ENVIRONMENTAL MATTERS
The Company is subject to loss contingencies resulting from environmental
laws and regulations, and it accrues for anticipated costs associated with
investigatory and remediation efforts when an assessment has indicated that a
loss is probable and can be reasonably estimated. These accruals do not take
into account any discounting for the time value of money and are not reduced
by potential insurance recoveries, if any. Environmental liabilities are
reassessed whenever circumstances become better defined and/or remediation
efforts and their costs can be better estimated. These liabilities are
evaluated periodically based on available information, including the progress
of remedial investigations at each site, the current status of discussions
with regulatory authorities regarding the methods and extent of remediation
and the apportionment of costs among potentially responsible parties. As some
of these issues are decided (the outcomes of which are subject to
uncertainties) and/or new sites are assessed and costs can be reasonably
estimated, the Company adjusts the recorded accruals, as necessary. The
Company believes that it has adequately reserved for all probable and
estimable environmental exposures. In connection with the Cryovac
Transaction, certain environmental liabilities of Cryovac were retained by or
assumed by New Grace.
CONTINGENCIES RELATED TO THE CRYOVAC TRANSACTION
In connection with the Cryovac Transaction, New Grace and its subsidiaries
retained all liabilities of Grace, whether accruing or occurring before or after
the Cryovac Transaction, other than liabilities arising from or relating to
Cryovac's operations. The liabilities retained by New Grace include, among
others, liabilities relating to asbestos-containing products previously
manufactured or sold by Grace subsidiaries, including its primary U.S. operating
subsidiary, which has operated for decades and has been a subsidiary of New
Grace since the Cryovac Transaction. The Transaction Agreements provided
23
<PAGE>
that, should any claimant seek to hold the Company, including any of its
subsidiaries, responsible for liabilities of New Grace or its subsidiaries,
including such asbestos-related liabilities, New Grace and its subsidiaries
would indemnify and defend the Company.
Since the beginning of 2000, the Company has been served with a number of
lawsuits alleging that, as a result of the Cryovac Transaction, the Company
is responsible for alleged asbestos liabilities of New Grace and its
subsidiaries, certain of which are also named as co-defendants in these
actions. These actions include several purported class action lawsuits and a
number of personal injury lawsuits. Some plaintiffs seek damages for personal
injury or wrongful death while others seek medical monitoring, environmental
remediation or remedies related to an attic insulation product. While the
allegations in these actions directed to the Company vary, these actions all
appear to allege that the Cryovac Transaction was a fraudulent transfer or
gave rise to successor liability. These cases are all in the pre-trial stage,
and none has been resolved through judgment, settlement or otherwise.
The Company believes that it is well-positioned to defend itself successfully in
any asbestos-related claims against it, including the actions described above.
Neither old Sealed Air nor Cryovac has ever produced or sold any
asbestos-containing products. To the extent that the Company is named in any
asbestos-related actions, the Company intends to defend its interests
vigorously. However, an adverse outcome could have a material adverse effect on
the Company's results of operations or consolidated financial position. While it
is not possible to predict the outcome of any litigation, based on the facts
known to the Company, the Company does not believe that an adverse outcome is
probable. Thus, in accordance with generally accepted accounting principles, the
Company has not recorded any liability in its financial statements for these
actions.
The Company's legal defense costs to date (including costs paid by New Grace
under the Transaction Agreements) have not been material. In late January 2001,
New Grace announced that it was reviewing the strategic and operating issues
associated with continuing to defend asbestos litigation through the court
system versus seeking a resolution of such litigation through reorganization
under Chapter 11 of the U.S. Bankruptcy Code. If New Grace were to file under
Chapter 11 of the Bankruptcy Code, that would not alter the Company's views
expressed in the preceding paragraph. If New Grace files under Chapter 11 or
fails to indemnify and defend the Company, the Company could incur additional
asbestos-related costs that could become material to the Company's results of
operations or consolidated financial position.
In addition to the non-Cryovac liabilities referred to above, New Grace also
agreed to retain certain liabilities of Cryovac and to indemnify the Company
against such liabilities. The Company may remain contingently liable with
respect to certain of such liabilities if New Grace were to fail to indemnify
the Company or file under Chapter 11. Based upon currently available
information, the Company believes that future costs, if any, related to such
liabilities will not have a material adverse effect on the Company's results
of operations or consolidated financial position.
The Company is the guarantor of certain outstanding public debt that was assumed
by New Grace pursuant to the Transaction Agreements. Approximately $8,000,000 of
such debt was outstanding at December 31, 2000. New Grace has indemnified the
Company against any liability arising under such guarantee pursuant to the
Transaction Agreements. However, if New Grace were to file under Chapter 11 of
the Bankruptcy Code, the Company could become responsible for such debt, to the
extent it was then outstanding, under such guarantee.
EURO CONVERSION
On January 1, 1999, eleven of the fifteen members of the European Union (the
"participating countries") established fixed conversion rates between their
existing currencies (the "legacy currencies") and introduced the euro, a single
common non-cash currency. On January 1, 2001, the number of participating
countries increased to twelve with the addition of Greece.
At the beginning of 2002, new euro-denominated bills and coins will be issued to
replace the legacy currencies, and the legacy currencies will be withdrawn from
circulation. By 2002, all companies operating in the participating countries are
required to restate their statutory accounting data into euros as their base
currency.
In 1998, the Company established plans to address the systems and business
issues raised by the euro currency conversion. These issues include, among
others, (a) the need to adapt computer, accounting and other business systems
and equipment to accommodate euro-denominated transactions, (b) the need to
modify banking and cash management systems in order to be able to handle
payments between customers and suppliers in legacy currencies and euros between
1999 and 2002, (c) the requirement to change the base statutory and reporting
currency of each subsidiary in the participating countries into euros during the
transition period, (d) the foreign currency exposure changes resulting from the
alignment of the legacy currencies into the euro, and (e) the identification of
material contracts and sales agreements whose contractual stated currency will
need to be converted into euros.
The Company believes that it will be euro compliant by January 1, 2002. The
Company has implemented plans to accommodate euro-denominated transactions and
to handle euro payments with third party customers and suppliers in the
participating countries. The Company plans to meet the requirement to convert
statutory and reporting currencies to the euro in part by acquiring and
installing new financial software systems and in part by modifying existing
systems. If there are delays in such installation, the Company plans to
24
<PAGE>
pursue alternate means to convert statutory and reporting currencies to the
euro by 2002. The Company expects that its foreign currency exposures will be
reduced as a result of the alignment of legacy currencies, and the Company
believes that all material contracts and sales agreements requiring
conversion will be converted to euros prior to January 1, 2002.
Although additional costs are expected to result from the implementation of the
Company's plans, the Company also expects to achieve benefits in its treasury
and procurement areas as a result of the elimination of the legacy currencies.
Since the Company has operations in each of its business segments in the
participating countries, each of its business segments will be affected by the
conversion process. However, the Company expects that the total impact of all
strategic and operational issues related to the euro conversion and the cost of
implementing its plans for the euro conversion will not have a material adverse
impact on its consolidated financial condition, results of operations or
reportable segments.
RECENTLY ISSUED STATEMENTS OF FINANCIAL ACCOUNTING STANDARDS
In September 2000, the Emerging Issues Task Force ("EITF") issued a consensus
opinion, EITF No. 00-10, "Accounting for Shipping and Handling Fees and
Costs," which became effective in the fourth quarter of 2000. Among other
things, EITF 00-10 prohibits the netting of shipping costs in arriving at net
trade sales. Prior to the issuance of EITF 00-10, the Company had followed
the common practice of netting shipping costs against trade sales in arriving
at net sales. The application of this consensus opinion has required certain
reclassifications to the Company's Consolidated Financial Statements for all
periods prior to 2000. Reported net sales amounts have increased as a result
of reclassifying shipping costs to cost of sales, and cost of sales amounts
are commensurately higher. Operating margins that are stated as a percentage
of net sales have been reduced as a result of this reclassification; however,
this reclassification had no effect on the Company's current or previously
reported operating profit or net earnings amounts.
In June 2000, the Financial Accounting Standard's Board (the "FASB") issued
Statement of Financial Accounting Standards ("SFAS") No. 138, "Accounting for
Certain Derivative Instruments and Certain Hedging Activities - an amendment of
FASB Statement No. 133."
In June 1999, the FASB issued SFAS No. 137, "Accounting for Derivative
Instruments and Hedging Activities - Deferral of the Effective Date of FASB
Statement No. 133." This Statement defers the effective date of SFAS No. 133,
"Accounting for Derivative Instruments and Hedging Activities." SFAS No. 133,
which the Company adopted beginning January 1, 2001, establishes accounting and
operating standards for hedging activities and derivative instruments, including
certain derivative instruments embedded in other contracts. The adoption of SFAS
Nos. 138 and 133 did not have a material effect on the Company's consolidated
financial statements.
FORWARD-LOOKING STATEMENTS
Certain statements made by the Company in this report and in future oral and
written statements by management of the Company may be forward-looking. These
statements include comments as to the Company's beliefs and expectations as to
future events and trends affecting the Company's business, its results of
operations and its financial condition. These forward-looking statements are
based upon management's current expectations concerning future events and
discuss, among other things, anticipated future performance and future business
plans. Forward-looking statements are identified by such words and phrases as
"expects," "intends," "believes," "will continue," "plans to," "could be" and
similar expressions. Forward-looking statements are necessarily subject to
uncertainties, many of which are outside the control of the Company, that could
cause actual results to differ materially from such statements.
While the Company is not aware that any of the factors listed below will
adversely affect the future performance of the Company, the Company recognizes
that it is subject to a number of uncertainties, such as business and market
conditions in the geographic areas in which it conducts business, changes in the
value of the euro and other foreign currencies against the U.S. dollar, the
success of certain information systems projects, factors affecting the
customers, industries and markets that use the Company's packaging materials and
systems, the development and success of new products, the Company's success in
entering new markets, and acquiring and integrating new businesses, timing of
capital expenditures, competitive factors, raw material availability and
pricing, changes in energy-related expenses, changes in the Company's
relationships with customers and suppliers, litigation and claims (including
environmental and asbestos matters) involving the Company, the effect of a
potential bankruptcy filing by W. R. Grace & Co. on the Company, the effects of
foot-and-mouth and mad-cow disease on the Company's customers, changes in
domestic or foreign laws or regulations, or difficulties related to the euro
conversion.
25
<PAGE>
SEALED AIR CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF EARNINGS
Years Ended December 31, 2000, 1999 and 1998
(In thousands of dollars, except for per share data)
<TABLE>
<CAPTION>
2000 1999 1998
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Net sales $ 3,067,714 $2,931,853 $2,580,207
Cost of sales 2,032,410 1,903,131 1,711,471
- -----------------------------------------------------------------------------------------------------
Gross profit 1,035,304 1,028,722 868,736
Marketing, administrative
and development expenses 516,312 527,126 486,160
Goodwill amortization 51,776 49,404 36,062
Restructuring and other (credit) charges, net (1,247) -- 87,182
- -----------------------------------------------------------------------------------------------------
Operating profit 468,463 452,192 259,332
Interest expense (64,513) (58,126) (53,629)
Other income(expense), net 9,479 1,587 (6,756)
- -----------------------------------------------------------------------------------------------------
Earnings before income taxes 413,429 395,653 198,947
Income taxes 188,110 184,192 125,940
- -----------------------------------------------------------------------------------------------------
NET EARNINGS $ 225,319 $ 211,461 $ 73,007
- -----------------------------------------------------------------------------------------------------
Add: Excess of book value over repurchase price of
Series A preferred stock 45,283 1,568 1,798
Less: Series A preferred stock dividends 64,266 71,422 53,921
Less: Retroactive recognition of preferred
stock dividends -- -- 18,011
- -----------------------------------------------------------------------------------------------------
Net earnings ascribed to common shareholders $ 206,336 $ 141,607 2,873
- -----------------------------------------------------------------------------------------------------
Earnings per common share:
Basic $ 2.47 $ 1.69 $ 0.04
Diluted $ 1.93 $ 1.68 $ 0.02
- -----------------------------------------------------------------------------------------------------
</TABLE>
See accompanying Notes to Consolidated Financial Statements.
26
<PAGE>
SEALED AIR CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
December 31, 2000 and 1999
(In thousands of dollars, except share data)
<TABLE>
<CAPTION>
2000 1999
- ------------------------------------------------------------------------------------------------------
ASSETS
Current assets:
<S> <C> <C>
Cash and cash equivalents $ 11,229 $ 13,672
Notes and accounts receivable, net of allowances for doubtful
accounts of $21,171 in 2000 and $21,396 in 1999 505,935 470,046
Inventories 309,116 245,934
Prepaid expenses and other current assets 8,136 9,976
Deferred income taxes 42,664 63,596
- ------------------------------------------------------------------------------------------------------
Total current assets 877,080 803,224
Property and equipment, net 1,032,141 1,023,409
Goodwill, less accumulated amortization of $135,240 in 2000 and
$84,699 in 1999 1,959,909 1,859,958
Deferred income taxes 7,367 8,494
Other assets 171,601 160,148
- ------------------------------------------------------------------------------------------------------
Total Assets $ 4,048,098 $ 3,855,233
======================================================================================================
LIABILITIES, PREFERRED STOCK AND SHAREHOLDERS' EQUITY
Current liabilities:
Short-term borrowings $ 290,428 $ 152,653
Current portion of long-term debt 1,418 6,908
Accounts payable 154,881 175,166
Other current liabilities 227,841 247,367
- ------------------------------------------------------------------------------------------------------
Total current liabilities 674,568 582,094
Long-term debt, less current portion 944,453 665,116
Deferred income taxes 210,581 214,906
Other liabilities 72,994 80,425
- ------------------------------------------------------------------------------------------------------
Total Liabilities 1,902,596 1,542,541
- ------------------------------------------------------------------------------------------------------
Commitments and contingencies (Note 17)
- ------------------------------------------------------------------------------------------------------
Authorized 50,000,000 preferred shares. Series A
convertible preferred stock,$50.00 per share
redemption value, authorized 28,289,714 shares
in 2000 and 36,021,851 in 1999, outstanding
27,847,462 shares in 2000 and 35,233,245 shares
in 1999, mandatory redemption in 2018 1,392,373 1,761,662
- ------------------------------------------------------------------------------------------------------
Shareholders' equity:
Common stock, $.10 par value per share. Authorized
400,000,000 shares; issued 84,352,492 shares in 2000
and 84,135,255 shares in 1999 8,435 8,413
Additional paid-in capital 689,084 632,230
Retained earnings 293,126 132,073
Accumulated translation adjustment (187,779) (171,521)
- ------------------------------------------------------------------------------------------------------
802,866 601,195
- ------------------------------------------------------------------------------------------------------
Less: Deferred compensation 17,073 24,511
Less: Cost of treasury common stock, 706,265
shares in 2000 and
535,356 shares in 1999 31,143 23,652
Less: Minimum pension liability 1,521 2,002
- ------------------------------------------------------------------------------------------------------
Total Shareholders' Equity 753,129 551,030
- ------------------------------------------------------------------------------------------------------
Total Liabilities, Preferred Stock and
Shareholders' Equity $ 4,048,098 $ 3,855,233
======================================================================================================
</TABLE>
See accompanying Notes to Consolidated Financial Statements
27
<PAGE>
SEALED AIR CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF EQUITY
Years Ended December 31, 2000, 1999 and 1998
(In thousands of dollars)
<TABLE>
<CAPTION>
Additional Retained
Common Paid-In Earnings Deferred
Stock Capital (Deficit) Compensation
<S> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------
Balance at
December 31, 1997
- ---------------------------------------------------------------------------------------
Net earnings for
quarter ended March 31, 1998
Net activity with
Grace
Cryovac Transaction
share issuances $8,327 $576,198 $_____ $ (9,649)
Effect of
contingent stock
transactions, net 52 32,073 _____ (19,034)
Shares issued for
non-cash compensation 1 436 _____ _____
Purchase of
preferred stock _____ 1,798 _____ _____
Purchase of common
stock _____ _____ _____ _____
FAS 87 pension
adjustment _____ _____ _____ _____
Foreign currency
translation _____ _____ _____ _____
Net earnings-April 1
through December 31,1998 _____ _____ 45,955 _____
Dividends on
preferred stock _____ _____ (53,921) _____
- ---------------------------------------------------------------------------------------
Balance at
December 31, 1998 8,380 610,505 (7,966) (28,683)
- ---------------------------------------------------------------------------------------
Effect of
contingent stock
transactions, net 25 12,718 _____ 4,172
Shares issued for
non-cash compensation 1 5,107 _____ _____
Exercise of stock
options 6 2,023 _____ _____
Purchase of
preferred stock _____ 1,568 _____ _____
Conversion of
preferred stock 1 309 _____ _____
Purchase of common
stock _____ _____ _____ _____
FAS 87 pension
adjustment _____ _____ _____ _____
Foreign currency
translation _____ _____ _____ _____
Net earnings _____ _____ 211,461 _____
Dividends on
preferred stock _____ _____ (71,422) _____
- ---------------------------------------------------------------------------------------
Balance at
December 31, 1999 8,413 632,230 132,073 (24,511)
- ---------------------------------------------------------------------------------------
Effect of
contingent stock
transactions, net 19 8,607 _____ 7,438
Shares issued for
non-cash compensation 1 2,049 _____ _____
Exercise of stock
options 2 858 _____ _____
Purchase of
preferred stock _____ 45,283 _____ _____
Conversion of
preferred stock _____ 57 _____ _____
Purchase of common
stock _____ _____ _____ _____
FAS 87 pension
adjustment _____ _____ _____ _____
Foreign currency
translation _____ _____ _____ _____
Net earnings _____ _____ 225,319 _____
Dividends on
preferred stock _____ _____ (64,266) _____
- ---------------------------------------------------------------------------------------
Balance at
December 31, 2000 $8,435 $689,084 $293,126 $(17,073)
- ---------------------------------------------------------------------------------------
</TABLE>
See accompanying Notes to Consolidated Financial Statements
CONSOLIDATED STATEMENTS OF EQUITY
Years Ended December 31, 2000, 1999 and 1998
(In thousands of dollars)
<TABLE>
<CAPTION>
Other Comprehensive Income
----------------------------
Treasury Accumulated Minimum Pre-Cryovac
Common Translation Pension Transaction
Stock Adjustment Liability Net Assets Total
<S> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------
Balance at
December 31, 1997 $(130,054) $1,482,682 1,352,628
- -----------------------------------------------------------------------------------------------------------------
Net earnings for
quarter ended
March 31, 1998 27,052 27,052
Net activity with
Grace 23,939 23,939
Cryovac Transaction
share issuances $_____ _____ $_____ (1,533,673) (958,797)
Effect of
contingent stock
transactions, net (182) _____ _____ 12,909
Shares issued for
non-cash compensation _____ _____ _____ 437
Purchase of
preferred stock _____ _____ _____ 1,798
Purchase of common
stock (17,052) _____ _____ (17,052)
FAS 87 pension
adjustment _____ _____ (3,114) (3,114)
Foreign currency
translation _____ 5,211 _____ 5,211
Net earnings-April 1
through December 31,1998 _____ _____ _____ 45,955
Dividends on
preferred stock _____ _____ _____ (53,921)
- -----------------------------------------------------------------------------------------------------------------
Balance at
December 31, 1998 (17,234) (124,843) (3,114) 437,045
- -----------------------------------------------------------------------------------------------------------------
Effect of
contingent stock
transactions, net (16) _____ _____ 16,899
Shares issued for
non-cash compensation 7,787 _____ _____ 12,895
Exercise of stock
options _____ _____ _____ 2,029
Purchase of
preferred stock _____ _____ _____ 1,568
Conversion of
preferred stock _____ _____ _____ 310
Purchase of common
stock (14,189) _____ _____ (14,189)
FAS 87 pension
adjustment _____ _____ 1,112 1,112
Foreign currency
translation _____ (46,678) _____ (46,678)
Net earnings _____ _____ _____ 211,461
Dividends on
preferred stock _____ _____ _____ (71,422)
- -----------------------------------------------------------------------------------------------------------------
Balance at
December 31, 1999 (23,652) (171,521) (2,002) 551,030
- -----------------------------------------------------------------------------------------------------------------
Effect of
contingent stock
transactions, net (23) _____ _____ 16,041
Shares issued for
non-cash compensation 15,405 _____ _____ 17,455
Exercise of stock
options _____ _____ _____ 860
Purchase of
preferred stock _____ _____ _____ 45,283
Conversion of
preferred stock _____ _____ _____ 57
Purchase of common
stock (22,873) _____ _____ (22,873)
FAS 87 pension
adjustment _____ _____ 481 481
Foreign currency
translation _____ (16,258) _____ (16,258)
Net earnings _____ _____ _____ 225,319
Dividends on
preferred stock _____ _____ _____ (64,266)
- -----------------------------------------------------------------------------------------------------------------
Balance at
December 31, 2000 $(31,143) $(187,779) $(1,521) $753,129
- -----------------------------------------------------------------------------------------------------------------
</TABLE>
See accompanying Notes to Consolidated Financial Statements
28
<PAGE>
SEALED AIR CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
Years Ended December 31, 2000, 1999 and 1998
(In thousands of dollars)
2000 1999 1998
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Cash flows from operating activities:
Net earnings $ 225,319 $ 211,461 $ 73,007
Adjustments to reconcile net earnings to cash
provided by operating activities:
Depreciation and amortization of property
and equipment 140,795 146,549 141,457
Goodwill and other amortization 78,846 76,850 54,497
Amortization of bond discount 318 169 --
Non-cash portion of restructuring and
other charges, net (1,247) -- 44,175
Deferred tax provisions 20,361 19,358 24,022
Net loss on disposals of property and
equipment 594 149 1,980
Changes in operating assets and
liabilities, net of
businesses acquired and the
Cryovac Transaction:
Notes and accounts receivable (30,882) (31,141) (31,123)
Inventories (54,710) 21,229 33,110
Other current assets 3,432 670 (926)
Other assets (12,645) 2,041 (15,251)
Accounts payable (23,483) 1,750 7,685
Income taxes payable 966 (16,491) 28,302
Other current liabilities (12,692) (1,477) 45,526
Other liabilities (5,559) (763) 5,185
- ------------------------------------------------------------------------------------------------------
Net cash provided by
operating activities 329,413 430,354 411,646
- ------------------------------------------------------------------------------------------------------
Cash flows from investing activities:
Capital expenditures for property and equipment (114,197) (75,080) (82,408)
Proceeds from sales of property and equipment 2,749 3,606 1,141
Businesses acquired in purchase transactions,
net of cash acquired (237,541) (25,811) 42,951
- ------------------------------------------------------------------------------------------------------
Net cash used in
investing activities (348,989) (97,285) (38,316)
- ------------------------------------------------------------------------------------------------------
Cash flows from financing activities:
Net advances to Grace -- -- (20,369)
Proceeds from long-term debt 661,048 572,831 1,259,221
Payment of long-term debt (369,661) (903,941) (265,606)
Payment of senior debt issuance costs -- (3,412) --
Transfer of funds in the Cryovac Transaction -- -- (1,258,807)
Net proceeds on short-term borrowings 129,482 74,848 21,732
Purchases of treasury common stock (22,873) (14,189) (17,052)
Purchases of preferred stock (323,948) (27,552) (8,202)
Dividends paid on preferred stock (67,880) (71,616) (36,010)
Proceeds from stock option exercises and
other 1,503 5,848 --
- ------------------------------------------------------------------------------------------------------
Net cash provided by (used in)
financing activities 7,671 (367,183) (325,093)
- ------------------------------------------------------------------------------------------------------
Effect of exchange rate changes on cash and cash
equivalents 9,462 2,800 (3,251)
- ------------------------------------------------------------------------------------------------------
Cash and cash equivalents:
Net change during the period (2,443) (31,314) 44,986
Balance, beginning of period 13,672 44,986 --
- ------------------------------------------------------------------------------------------------------
Balance, end of period $ 11,229 $13,672 $44,986
======================================================================================================
</TABLE>
See accompanying Notes to Consolidated Financial Statements.
29
<PAGE>
SEALED AIR CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME
Years Ended December 31, 2000, 1999 and 1998
(In thousands of dollars)
<TABLE>
<CAPTION>
2000 1999 1998
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Net earnings $225,319 $211,461 $ 73,007
Other comprehensive income:
Minimum pension liability, net of an income
tax charge (benefit) of $326, $1,020 and
$(2,360), in 2000, 1999 and 1998, respectively 481 1,112 (3,114)
Foreign currency translation adjustments (16,258) (46,678) 5,211
- ----------------------------------------------------------------------------------------------------
Comprehensive income $209,542 $165,895 $ 75,104
====================================================================================================
See accompanying Notes to Consolidated Financial Statements.
</TABLE>
30
<PAGE>
SEALED AIR CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(In thousands of dollars, except share and per share data)
- --------------------------------------------------------------------------------
NOTE 1 GENERAL
Sealed Air Corporation (the "Company"), operating through its subsidiaries, is
engaged in the manufacture and sale of a wide range of food, protective and
specialty packaging products.
The Company conducts substantially all of its business through two direct wholly
owned subsidiaries, Cryovac, Inc. and Sealed Air Corporation (US). These two
subsidiaries directly and indirectly own substantially all of the assets of the
business and conduct operations themselves and through subsidiaries around the
globe. This corporate structure was established in connection with the Cryovac
Transaction. See Note 4 for a description of the Cryovac Transaction and certain
related terms used in these notes.
NOTE 2 SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
BASIS OF CONSOLIDATION
The consolidated financial statements include the accounts of the Company and
its subsidiaries. All significant intercompany transactions and balances have
been eliminated in consolidation. For periods prior to March 31, 1998 (see Note
4), the financial statements include only the operating results, cash flows,
assets and liabilities of Cryovac. See Note 4 for a description of certain
related allocations prior to the Cryovac Transaction. In the Cryovac
Transaction, the merger of a subsidiary of the Company with old Sealed Air was
accounted for as a purchase of old Sealed Air by the Company on March 31, 1998.
Accordingly, the operating results, cash flows, assets and liabilities of both
Cryovac and old Sealed Air are included in the consolidated financial statements
from March 31, 1998 onward. See Note 4 for unaudited selected pro forma
statement of earnings information for the year ended December 31, 1998.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions
affecting the reported amounts of assets and liabilities (including contingent
assets and liabilities) at the dates of the financial statements and the
reported revenues and expenses during the periods presented. Actual amounts
could differ from those estimates.
REVENUE RECOGNITION
Revenue is recognized upon shipment of goods to customers.
CASH AND CASH EQUIVALENTS
Investments with original maturities of three months or less are considered to
be cash equivalents. The Company's policy is to invest cash in excess of
short-term operating and debt service requirements in such cash equivalents.
These instruments are stated at cost, which approximates market because of the
short maturity of the instruments.
FINANCIAL INSTRUMENTS
The Company has limited involvement with derivative financial instruments
that have off-balance sheet risk. These financial instruments generally
include cross currency swaps, interest rate swaps, caps and collars and
foreign exchange forwards and options relating to the Company's borrowing
and trade activities. Such financial instruments are used to manage the
Company's exposure to fluctuations in interest rates and foreign exchange
rates. The Company does not purchase, hold or sell derivative financial
instruments for trading or speculative purposes. The Company is exposed to
credit risk in the event of the inability of the counterparties to perform
their obligations. However, the
31
<PAGE>
Company seeks to minimize such risk by entering into transactions with
counterparties that are major financial institutions with high credit ratings.
The Company records realized and unrealized gains and losses from foreign
exchange hedging instruments (including cross currency swaps, forwards and
options) differently depending on whether the instrument qualifies for hedge
accounting. Gains and losses on those foreign exchange instruments that qualify
as hedges are deferred as part of the cost basis of the asset or liability being
hedged and are recognized in the statement of earnings in the same period as the
underlying transaction. Realized and unrealized gains and losses on instruments
that do not qualify for hedge accounting are recognized currently in the
statement of earnings.
The Company records the net payments or receipts from interest rate swaps, caps,
collars and the interest rate component of cross currency swaps as adjustments
to interest expense on a current basis. If an interest rate hedging instrument
were terminated prior to the maturity date, any gain or loss would be amortized
into earnings over the shorter of the original term of the derivative instrument
and the underlying transaction.
INVENTORIES
Inventories are stated at the lower of cost or market. The cost of most U.S.
inventories is determined on a last-in, first-out ("LIFO") basis, while the cost
of other inventories is determined on a first-in, first-out ("FIFO") basis.
PROPERTY AND EQUIPMENT
Property and equipment are stated at cost, except for property and equipment
that have been impaired, for which the carrying amount is reduced to estimated
fair value. Significant improvements are capitalized; repairs and maintenance
costs that do not extend the lives of the assets are charged to expense as
incurred. The cost and accumulated depreciation of assets sold or otherwise
disposed are removed from the accounts, and any resulting gain or loss is
included when the assets are disposed.
The cost of property and equipment is depreciated over their estimated useful
lives on a straight-line basis as follows: buildings - 20 to 40 years; machinery
and other property and equipment - 3 to 20 years.
GOODWILL AND OTHER INTANGIBLE ASSETS
Goodwill is amortized on a straight-line basis principally over a 40-year
period. Other intangible assets are included in other assets at cost and consist
primarily of patents, licenses, trademarks and non-compete agreements. They are
amortized over the shorter of their legal lives or their estimated useful lives
on a straight-line basis, generally ranging from 3 to 20 years. Identifiable
intangibles individually and in the aggregate comprise less than 5% of the
Company's consolidated assets.
IMPAIRMENT OF LONG-LIVED ASSETS
The Company periodically reviews the carrying value of its long-lived assets
including property and equipment, goodwill and other intangible assets for
impairment whenever events or changes in circumstances indicate that the
carrying amount of such assets may not be fully recoverable. Impairments are
recognized when the expected future undiscounted cash flows derived from such
assets are less than their carrying value. For such cases, losses are recognized
for the difference between the fair value and the carrying amount. The Company
considers various valuation factors, principally discounted cash flows, to
assess the fair values of long-lived assets. Assets to be disposed of by sale or
abandonment, and where management has the current ability to remove such assets
from operations, are recorded at the lower of carrying amount or fair value less
cost of disposition. Depreciation for these assets is suspended during the
disposal period, which is generally less than one year.
STOCK-BASED COMPENSATION
The Company has adopted the disclosure provisions of SFAS No. 123, "Accounting
for Stock-Based Compensation." As permitted by SFAS No. 123, the Company
continues to follow the measurement provisions of Accounting Principles Board
Opinion ("APB") No. 25, "Accounting for Stock Issued to Employees."
FOREIGN CURRENCY TRANSLATION
In non-U.S. locations that are not considered highly inflationary, the balance
sheets are translated at the end of period exchange rates, and statements of
earnings are translated at the average exchange rates during the applicable
period with translation adjustments accumulated in shareholders' equity. Assets
and liabilities of the Company's operations in countries with highly
inflationary economies are translated at the end of period exchange rates,
except that certain financial statement amounts are translated at historical
exchange rates. Items included in statements of earnings of the Company's
operations in countries with highly inflationary economies are translated at
average rates of exchange prevailing during the period, except that certain
financial statement amounts are translated at historical exchange rates.
32
<PAGE>
INCOME TAXES
The Company and its domestic subsidiaries file a consolidated U.S. federal
income tax return. The Company's non-U.S. subsidiaries file income tax returns
in their respective local jurisdictions. During 1998, the Company began
providing for income taxes on that portion of its foreign subsidiaries'
accumulated earnings that management believes are not reinvested indefinitely in
their businesses.
Income taxes are accounted for under the asset and liability method. Deferred
tax assets and liabilities are recognized for the future tax consequences
attributable to differences between the financial statement carrying amounts of
existing assets and liabilities and their respective tax bases and operating
loss and tax credit carryforwards. A valuation allowance is provided when it is
more likely than not that all or some portion of the deferred tax asset will not
be realized. Deferred tax liabilities or assets at the end of each period are
determined using the tax rates then in effect.
RESEARCH AND DEVELOPMENT
Research and development costs are expensed as incurred and amounted to $54,264,
$56,452 and $57,524 in 2000, 1999 and 1998, respectively.
EARNINGS PER COMMON SHARE
Earnings per common share information has been calculated in accordance with
SFAS No. 128, "Earnings Per Share," and for periods prior to March 31, 1998 in
accordance with SAB No. 98, "Computation of Earnings Per Share," since the
Company did not have a separately identifiable capital structure upon which a
calculation of earnings per common share could be based prior to the Cryovac
Transaction.
ENVIRONMENTAL EXPENDITURES
Environmental expenditures that relate to ongoing business activities are
expensed or capitalized, as appropriate. Expenditures that relate to an existing
condition caused by past operations, and which do not contribute to current or
future net sales, are expensed. Liabilities are recorded when the Company
determines that environmental assessments or remediations are probable and that
the cost or a range of costs to the Company associated therewith can be
reasonably estimated.
RECLASSIFICATIONS
In September 2000, the Emerging Issues Task Force ("EITF") issued a consensus
opinion, EITF No. 00-10, "Accounting for Shipping and Handling Fees and Costs",
which became effective in the fourth quarter of 2000. Among other things, EITF
00-10 prohibits the netting of shipping costs in arriving at net trade sales. As
a result of applying this consensus opinion, reported net sales amounts have
increased as a result of reclassifying shipping costs to cost of sales while
cost of sales amounts are commensurately higher. This reclassification had no
effect on the Company's current or previously reported operating profit or net
earnings amounts.
Certain other prior period amounts have been reclassified to conform to the
current year's presentation.
33
<PAGE>
NOTE 3 BUSINESS SEGMENT INFORMATION
The Company operates in two reportable business segments: (i) Food Packaging and
(ii) Protective and Specialty Packaging. The Food Packaging segment comprises
primarily the Company's Cryovac(R) food packaging products. The Protective and
Specialty Packaging segment includes the aggregation of the Company's protective
packaging products, engineered products and specialty products, all of which are
principally for non-food packaging applications.
The Food Packaging segment includes flexible materials and related systems
(shrink film and bag products, laminated films, and packaging systems marketed
primarily under the Cryovac(R) trademark for packaging a broad range of
perishable foods). This segment also includes rigid packaging and absorbent pads
(foam and solid plastic trays and containers for the packaging of a wide variety
of food products and absorbent pads used for the packaging of meat, fish and
poultry). Net sales of flexible materials and related systems were: 2000 -
$1,599,230; 1999 - $1,594,073; and 1998 - $1,545,895. Net sales of rigid
packaging and absorbent pads were: 2000 - $238,064; 1999 - $187,347; and 1998 -
$154,131. Products in this segment are primarily sold to food processors,
distributors and food service businesses.
The Protective and Specialty Packaging segment includes cushioning and surface
protection products (including air cellular cushioning materials, films for
non-food applications, polyurethane foam packaging systems sold under the
Instapak(R) trademark, polyethylene foam sheets and planks, a comprehensive line
of protective and durable mailers and bags, certain paper-based protective
packaging materials, suspension and retention packaging, inflatable packaging,
and packaging systems) and other products. Net sales of cushioning and surface
protection products were: 2000 - $1,199,059; 1999 - $1,113,434; and 1998 -
$850,918. Net sales of other products for 2000, 1999 and 1998 were approximately
1% of consolidated net sales. Products in this segment are primarily sold to
distributors and manufacturers.
<TABLE>
<CAPTION>
2000 1999 (1) 1998 (1)
- ---------------------------------------------------------------------------------------------------
Net sales
<S> <C> <C> <C>
Food Packaging $ 1,837,294 $ 1,781,420 $ 1,700,026
Protective and Specialty Packaging 1,230,420 1,150,433 880,181
- ---------------------------------------------------------------------------------------------------
Total segments $ 3,067,714 $ 2,931,853 $ 2,580,207
===================================================================================================
Operating profit
Food Packaging $ 288,880 $ 286,184 $ 234,814
Protective and Specialty Packaging 249,684 237,332 158,570
- ---------------------------------------------------------------------------------------------------
Total segments 538,564 523,516 393,384
Restructuring and other (charges), net (2) 1,247 -- (87,182)
Corporate operating expenses (including
goodwill amortization of $51,776, $49,404
and $36,062 in 2000, 1999 and 1998,
respectively) (71,348) (71,324) (46,870)
- ---------------------------------------------------------------------------------------------------
Total $ 468,463 $ 452,192 $ 259,332
===================================================================================================
Depreciation and amortization
Food Packaging $ 108,050 $111,253 $111,553
Protective and Specialty Packaging 58,954 61,958 48,214
- ---------------------------------------------------------------------------------------------------
Total segments 167,004 173,211 159,767
Corporate (including goodwill and other
amortization) 52,637 50,188 36,187
- ---------------------------------------------------------------------------------------------------
Total $ 219,641 $ 223,399 $ 195,954
===================================================================================================
</TABLE>
34
<PAGE>
<TABLE>
<CAPTION>
2000 1999 (1) 1998 (1)
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Capital expenditures
Food Packaging $ 75,773 $ 51,307 $ 48,497
Protective and Specialty Packaging 38,424 23,773 31,487
- ---------------------------------------------------------------------------------------------------
Total segments 114,197 75,080 79,984
Corporate -- -- 2,424
- ---------------------------------------------------------------------------------------------------
Total $ 114,197 $ 75,080 $ 82,408
===================================================================================================
Assets (3)
Food Packaging $ 1,361,316 $ 1,292,850 $ 1,453,615
Protective and Specialty Packaging 722,375 695,161 668,896
- ---------------------------------------------------------------------------------------------------
Total segments 2,083,691 1,988,011 2,122,511
Corporate (including goodwill, net of
$1,959,909, $1,859,958 and $1,907,736
in 2000, 1999 and 1998, respectively) 1,964,407 1,867,222 1,917,419
- ---------------------------------------------------------------------------------------------------
Total $4,048,098 $3,855,233 $4,039,930
===================================================================================================
</TABLE>
(1) Certain prior period amounts have been reclassified to conform to the
current year's presentation.
(2) Restructuring and other (charges), net in 2000 includes a non-cash credit of
$1,247 for Food Packaging. The 1998 period includes a $73,172 charge for
Food Packaging (including a net non-cash charge of $46,021) and a $14,010
charge for Protective and Specialty Packaging (including a net non-cash
credit of $1,846).
(3) Plant and equipment facilities and other resources of the Food Packaging
segment are used to manufacture films (non-food applications) for the
Protective and Specialty Packaging segment. A proportionate share of capital
expenditures, assets, depreciation and other costs of manufacturing are
allocated to the Protective and Specialty Packaging segment.
GEOGRAPHIC INFORMATION
<TABLE>
<CAPTION>
2000 1999 1998
- ----------------------------------------------------------------------------------------
Net sales: (4)
<S> <C> <C> <C>
North America $ 1,782,026 $ 1,674,198 $ 1,448,425
Europe 762,271 779,019 714,498
Latin America 225,229 187,110 174,843
Asia Pacific 298,188 291,526 242,441
- ----------------------------------------------------------------------------------------
Total $ 3,067,714 $ 2,931,853 $ 2,580,207
========================================================================================
Total long-lived assets: (4)
North America (5) $ 2,667,156 $ 2,569,071 $ 2,716,288
Europe 307,700 281,951 285,834
Latin America 62,120 58,638 59,292
Asia Pacific 126,675 133,855 123,144
- ----------------------------------------------------------------------------------------
Total $ 3,163,651 $ 3,043,515 $ 3,184,558
========================================================================================
</TABLE>
(4) Net sales attributed to the geographic areas represent trade sales to
external customers. Net sales in North America represent substantially net
sales in the United States. No non-U.S. country has net sales in excess of
10% of consolidated net sales or long-lived assets in excess of 10% of
consolidated long-lived assets.
(5) Includes goodwill, net, of $1,959,909, $1,859,958 and $1,907,736 in 2000,
1999 and 1998, respectively.
35
<PAGE>
NOTE 4 ACQUISITIONS
In 2000 and 1999, the Company made several acquisitions (including the
acquisitions of Dolphin Packaging plc and Shanklin Corporation in the third and
fourth quarters of 2000, respectively). These transactions, which were carried
out in exchange for cash in the aggregate amount of approximately $237,541 in
2000 and $25,811 in 1999, were accounted for as purchases and resulted in
goodwill of approximately $153,000 in 2000 and $6,000 in 1999. This goodwill is
being amortized over periods ranging from 5 to 30 years. These transactions were
not material to the Company's consolidated financial statements.
On March 31, 1998, the Company completed a multi-step transaction (the "Cryovac
Transaction"). As part of that transaction, the Cryovac packaging business
("Cryovac"), held by various direct and indirect subsidiaries of the Company,
was separated from the remaining business, and the Company and one of its
subsidiaries borrowed approximately $1,260,000. The remaining business, which
received the borrowed funds referred to in the preceding sentence, was then
contributed to a company now known as W. R. Grace & Co. ("New Grace"), whose
shares were distributed to the Company's stockholders. As a result, New Grace
became a separate publicly owned company. The Company and its subsidiary
retained the obligation to repay such borrowed funds. The Company recapitalized
its outstanding shares of common stock into a new common stock and a new
convertible preferred stock. A subsidiary of the Company then merged into the
former Sealed Air Corporation ("old Sealed Air"), which changed its name to
Sealed Air Corporation (US). References to "Grace" in these Notes refer to the
Company and its then subsidiaries before the Cryovac Transaction. The agreements
pursuant to which the Cryovac Transaction was carried out are referred to in
these Notes as the "Transaction Agreements."
For accounting purposes, the historical financial statements arising from the
Cryovac Transaction are those of Cryovac, and the merger described above was
treated as a purchase of old Sealed Air by the Company. The Company issued
42,624,246 shares of common stock at a value of $49.52 per share for a purchase
price of $2,141,000, including incurred costs of approximately $30,000, in
exchange for the net assets of old Sealed Air. The fair value of such net assets
included approximately $181,000 of property and equipment, $95,800 of working
capital (including cash of $51,259), and other long-term net liabilities of
approximately $71,500. Resulting goodwill of approximately $1,935,700 is being
amortized over a 40-year period.
<PAGE>
The following table presents selected unaudited pro forma statement of earnings
information for the year ended December 31, 1998 that has been prepared as if
the Cryovac Transaction had occurred on January 1, 1998. Such amounts include
adjustments principally for incremental goodwill amortization and interest
expense and the exclusion of a non-cash inventory charge that resulted from the
turnover of certain of the Company's inventories previously stepped-up to fair
value. This information is not intended to represent what the Company's actual
results would have been for such year if the Cryovac Transaction had occurred on
January 1, 1998.
<TABLE>
<CAPTION>
Year Ended
December 31, 1998
(unaudited)
- --------------------------------------------------------------------------------
Net sales by segment:
<S> <C>
Food Packaging $1,726,496
Protective and Specialty Packaging 1,076,221
- --------------------------------------------------------------------------------
Net sales $2,802,717
================================================================================
Net earnings $ 81,492
================================================================================
Earnings per common share:
Basic $ 0.14
Diluted $ 0.12
================================================================================
</TABLE>
The consolidated statement of earnings for 1998 includes approximately $32,044
of expenses that Grace allocated to Cryovac during the first quarter of 1998.
The following types of expenses were allocated: domestic and international
regional corporate expenses, general, administrative and maintenance services
for facilities Cryovac shared with other Grace businesses, data processing
services provided by Grace's European central processing facility, workers'
compensation and general business insurance premiums and claims. The cost
allocations for these services were determined based on methods that Grace
management considered reasonable.
During 1998, the Company made certain other acquisitions. These transactions,
which were effected in exchange for cash, were accounted for as purchases and
were not material to the Company's consolidated financial statements.
36
<PAGE>
NOTE 5 INVENTORIES
<TABLE>
<CAPTION>
December 31,
- --------------------------------------------------------------------------------------
2000 1999
- --------------------------------------------------------------------------------------
Inventories (at FIFO, which approximates current cost):
<S> <C> <C>
Raw materials $ 72,537 $ 60,596
Work in process 63,798 43,021
Finished goods 193,169 157,341
- --------------------------------------------------------------------------------------
329,504 260,958
Reduction of certain inventories to LIFO basis (20,388) (15,024)
- --------------------------------------------------------------------------------------
Total $ 309,116 $ 245,934
- --------------------------------------------------------------------------------------
</TABLE>
Inventories accounted for on a LIFO basis represented approximately 40% and 46%
of total inventories at December 31, 2000 and 1999, respectively.
NOTE 6 PROPERTY AND EQUIPMENT
<TABLE>
<CAPTION>
December 31,
- -----------------------------------------------------------------------------
2000 1999
- -----------------------------------------------------------------------------
<S> <C> <C>
Land and improvements $ 35,954 $ 29,744
Buildings 404,514 396,716
Machinery and equipment 1,405,119 1,364,454
Other property and equipment 112,184 115,111
Construction-in-progress 85,707 40,106
- -----------------------------------------------------------------------------
2,043,478 1,946,131
Accumulated depreciation and amortization (1,011,337) (922,722)
- -----------------------------------------------------------------------------
Property and equipment, net $ 1,032,141 $ 1,023,409
=============================================================================
</TABLE>
Interest cost capitalized during 2000, 1999 and 1998 was $3,300, $3,000 and
$4,994, respectively.
37
<PAGE>
NOTE 7 OTHER LIABILITIES
<TABLE>
<CAPTION>
December 31,
- -------------------------------------------------------------------------
2000 1999
- -------------------------------------------------------------------------
<S> <C> <C>
Other current liabilities:
Accrued salaries, wages and related costs $ 93,086 $105,811
Accrued restructuring costs (Note 9) 537 5,420
Accrued operating expenses 71,878 76,759
Accrued dividends and interest 29,457 28,497
Income taxes payable 32,883 30,880
- -------------------------------------------------------------------------
Total $227,841 $247,367
=========================================================================
December 31,
- -------------------------------------------------------------------------
2000 1999
- -------------------------------------------------------------------------
Other liabilities:
Other postretirement benefits $ 3,699 $ 4,309
Non-U.S. statutory social security and
pension obligations 31,103 31,625
Other various liabilities 38,192 44,491
- -------------------------------------------------------------------------
Total $72,994 $80,425
=========================================================================
</TABLE>
Non-U.S. statutory social security and pension obligations primarily represent
the present value of the Company's unfunded future obligations for certain
eligible, active non-U.S. employees based on actuarial calculations.
NOTE 8 INCOME TAXES
The components of earnings before income taxes were as follows:
<TABLE>
<CAPTION>
2000 1999 1998
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C>
Domestic $ 310,361 $233,493 $132,448
Foreign 103,068 162,160 66,499
- ----------------------------------------------------------------------------------------
Total $ 413,429 $395,653 $ 198,947
- ----------------------------------------------------------------------------------------
</TABLE>
The components of the provision for income taxes were as follows:
<TABLE>
<CAPTION>
2000 1999 1998
- ------------------------------------------------------------------------------------
<S> <C> <C> <C>
Current tax expense:
Federal $ 96,864 $77,391 $54,249
State and local 23,498 20,455 11,830
Foreign 47,387 66,988 35,839
- ------------------------------------------------------------------------------------
Total current 167,749 164,834 101,918
- ------------------------------------------------------------------------------------
Deferred tax expense:
Federal 14,769 10,371 1,315
State and local 3,668 2,593 283
Foreign 1,924 6,394 22,424
- ------------------------------------------------------------------------------------
Total deferred 20,361 19,358 24,022
- ------------------------------------------------------------------------------------
Total provision $ 188,110 $184,192 $125,940
- ------------------------------------------------------------------------------------
</TABLE>
38
<PAGE>
Deferred tax assets (liabilities) consist of the following:
<TABLE>
<CAPTION>
December 31,
- ----------------------------------------------------------------------------
2000 1999
- ----------------------------------------------------------------------------
<S> <C> <C>
Accruals not yet deductible for tax purposes $ 20,865 $ 26,077
Foreign net operating loss carryforwards and
investment tax allowances 22,772 24,946
Employee benefit items 15,781 20,516
Inventories 13,576 17,617
Research and development 5,877 12,401
Postretirement benefits other than pensions 1,487 1,732
Other 6,911 7,792
- ----------------------------------------------------------------------------
Gross deferred tax assets 87,269 111,081
Valuation allowance (15,049) (15,412)
- ----------------------------------------------------------------------------
Total deferred tax assets 72,220 95,669
- ----------------------------------------------------------------------------
Depreciation and amortization (125,640) (122,032)
Unremitted foreign earnings (38,683) (35,750)
Intangibles (29,891) (34,055)
Pension (19,414) (21,216)
Capitalized interest (12,421) (14,487)
Other (11,539) (10,945)
- ----------------------------------------------------------------------------
Total deferred tax liabilities (237,588) (238,485)
- ----------------------------------------------------------------------------
Net deferred tax liabilities $(165,368) $(142,816)
- ----------------------------------------------------------------------------
</TABLE>
The U.S. federal statutory corporate tax rate reconciles to the Company's
effective tax rate as follows:
<TABLE>
<CAPTION>
2000 1999 1998
- --------------------------------------------------------------------------------------
<S> <C> <C> <C>
Statutory U.S. federal tax rate 35.0% 35.0% 35.0%
State income taxes, net of federal tax benefit 4.3 3.8 4.0
U.S. and foreign taxes on unremitted earnings 0.4 0.9 14.1
Foreign taxes on foreign operations in excess of
U.S. tax rates 0.6 1.8 2.6
Non-deductible expenses, primarily goodwill
amortization 5.2 5.1 7.6
- --------------------------------------------------------------------------------------
Effective tax rate 45.5% 46.6% 63.3%
- --------------------------------------------------------------------------------------
</TABLE>
The Company has concluded that it is more likely than not that the balance of
deferred tax assets, net of the valuation allowance, of $72,220 at December 31,
2000 will be realized based upon anticipated future results. The balance of the
valuation allowance of $15,049 at December 31, 2000 is due to the uncertainty of
the realization of certain foreign deferred tax assets, primarily relating to
foreign investment tax allowances that arose during 1996.
During 1998, the Company began providing for income taxes on that portion of
foreign subsidiaries' accumulated earnings that management believes are not
reinvested indefinitely in their businesses. Such provision resulted in an
income tax charge of $26,000 in respect of such accumulated earnings.
Previously, the Company treated the accumulated earnings of the Company's
foreign subsidiaries as reinvested indefinitely in their businesses, and
therefore no income taxes were provided in the financial statements with respect
to future repatriation of such accumulated earnings.
At December 31, 2000, there were $45,251 of foreign net operating loss
carryforwards ($13,368 tax effected) and $33,587 of investment tax allowances
($9,404 tax effected), the majority of which originated prior to the Cryovac
Transaction, and have no expiration period. New Grace retains the future
benefit, if realized, of such loss carry-forwards and allowances originating
prior to the Cryovac Transaction.
39
<PAGE>
NOTE 9 RESTRUCTURING COSTS AND OTHER CHARGES, NET
Prior to the Cryovac Transaction, Grace began to implement a worldwide program
(the "Pre-1998 Program") focused on streamlining processes and reducing general
and administrative expenses and factory administration costs. Charges recognized
relating to the Pre-1998 Program primarily related to headcount reductions in
Cryovac and the restructuring of Cryovac's European operations in areas such as
working capital management, manufacturing and sales. This program resulted in
the elimination of approximately 400 positions worldwide. As of December 31,
2000, all of these positions had been eliminated.
In connection with the Cryovac Transaction, certain obligations related to
Grace's restructuring program were retained by New Grace. As of March 31, 1998,
the Company's liability with respect to such obligations, amounting to
approximately $7,714 together with related deferred income taxes, was reversed
and accounted for as an equity contribution to the Company from Grace.
After the Cryovac Transaction, the Company conducted a review of its operations
in order to develop a combined operating plan for old Sealed Air and Cryovac.
The review considered organization and business structures and methods, the
nature and extent of manufacturing and business operations in each region of the
world, including assets and resources deployed, and current business and
economic trends. As a result of such review, during the third quarter of 1998,
the Company announced and began implementation of a restructuring program (the
"1998 Program"). Charges to operations arising out of the 1998 Program amounted
to $111,074 and included $39,848 of employee termination costs, for
approximately 750 positions or approximately 5% of its workforce across all
functional areas, $3,441 of exit costs and $67,785 of asset impairments related
to long-lived assets either held for use or held for disposition. The portion of
the 1998 restructuring and asset impairment charge applicable to the Company's
food packaging segment amounted to $97,064 and the portion applicable to the
protective and specialty packaging segment amounted to $14,010. The asset
impairment amount of $67,785 includes write-downs or write-offs of $47,083 for
property, plant and equipment, $13,008 for goodwill, and $7,694 for certain
other long-lived intangible assets. The $67,785 asset impairment charge includes
$20,021 of long-lived assets, primarily machinery and equipment, that have been
disposed and the remaining amount of $47,764 are long-lived assets held for use.
The Company incurred approximately $41,718 of cash outlays to carry out this
restructuring program. These cash outlays include primarily severance and other
personnel related costs, costs of terminating leases and facilities and
equipment disposition costs. During the fourth quarter of 2000, the Company
reversed $1,247 of the liability related to the 1998 Program, as costs were
lower than originally anticipated. As of December 31, 2000, all restructuring
actions related to this program were substantially completed including the
elimination of 744 positions.
The remaining liability of $537 at December 31, 2000 is related to outstanding
employee separation costs which are expected to be paid during 2001.
The following table presents the rollforward of the restructuring liability from
December 31, 1997 to December 31, 2000, including restructuring charges,
spending, reserve reversals and other activity during the three-year period.
<TABLE>
<CAPTION>
Employee Contract
Termi- Plant/ Termi
nation Office -nation
Costs Closures Costs Total
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Restructuring liability at December 31, 1997 $ 10,157 $ 2,786 $ -- $ 12,943
Liability retained by New Grace at
March 31, 1998 (5,015) (2,699) -- (7,714)
Partial reversal of Pre-1998 Program (282) -- -- (282)
1998 Program restructuring charge 39,848 2,291 1,150 43,289
Pre-1998 Program payments (3,516) -- -- (3,516)
1998 Program payments (14,486) (729) (1,150) (16,365)
- ----------------------------------------------------------------------------------------------------------
Restructuring liability at December 31, 1998 26,706 1,649 -- 28,355
Pre-1998 Program payments (951) (56) -- (1,007)
1998 Program payments (21,392) (536) -- (21,928)
- ----------------------------------------------------------------------------------------------------------
Restructuring liability at December 31, 1999 4,363 1,057 -- 5,420
Pre-1998 Program payments (180) (31) -- (211)
1998 Program payments (2,488) (937) -- (3,425)
Partial reversal of 1998 Program (1,158) (89) -- (1,247)
- ----------------------------------------------------------------------------------------------------------
Restructuring liability at December 31, 2000 $ 537 $ -- $ -- $ 537
- ----------------------------------------------------------------------------------------------------------
</TABLE>
40
<PAGE>
NOTE 10 EMPLOYEE BENEFITS AND INCENTIVE PROGRAMS
PROFIT-SHARING AND RETIREMENT SAVINGS PLANS
The Company has a non-contributory profit-sharing plan covering most of the
Company's U.S. employees. Contributions to this plan, which are made at the
discretion of the Board of Directors, may be made in cash, shares of the
Company's common stock, or in a combination of cash and shares of the Company's
common stock. The Company also maintains contributory thrift and retirement
savings plans in which most U.S. employees of the Company are eligible to
participate. The contributory thrift and retirement savings plans generally
provide for Company contributions based upon the amount contributed to the plans
by the participants. Company contributions to or provisions for its
profit-sharing and retirement savings plans are charged to operations and
amounted to $22,004, $31,852 and $22,919 in 2000, 1999 and 1998, respectively.
Shares of common stock issued for a portion of the Company's contribution to its
profit-sharing plan were $13,877 and $8,823 in 2000 and 1999, respectively. In
1998, no shares of common stock were issued to the profit sharing plan.
PENSION PLANS
The Company maintains pension plans for certain U.S. employees, including
certain employees who are covered by collective bargaining agreements. In 1998,
the Company established a pension plan for U.S. employees who were employees of
Cryovac at the time of the Cryovac Transaction and who participated in a prior
pension plan. The new plan is intended to provide restorative benefits to the
extent required, if any, should the Company's assumed profit-sharing plan
benefits be insufficient to provide retiree benefits at least equivalent in
amount to assumed benefits under that prior plan. Pension cost for all U.S.
pension plans charged to operations during 2000, 1999, and for the 1998 period
subsequent to the Cryovac Transaction amounted to $624, $1,088 and $803,
respectively. The balance sheets as of December 31, 2000 and 1999 include the
following items related to such plans: an intangible asset of $1,706 and $1,610,
respectively; accumulated other comprehensive income of $59 and $572,
respectively; an accrued benefit liability of $21 and $599, respectively; and a
prepaid pension asset of $2,510 and $1,964, respectively. The aggregate benefit
obligation at December 31, 2000 and 1999 amounted to $16,802 and $15,369,
respectively, while the fair value of plan assets at such dates amounted to
$15,423 and $14,170, respectively.
Separate calculations of Cryovac's net pension cost within Grace's U.S. pension
plans were performed for the quarter ended March 31, 1998. Cryovac's net pension
cost amounted to $1,092 and consisted of service cost on benefits earned during
the quarter of $1,520, interest cost on benefits earned in prior years of
$3,251, actual return on plan assets of $3,587, deferred gain on plan assets of
$273, and amortization of net gain and prior service costs of $365.
Certain of the Company's non-U.S. employees participate in defined benefit
pension plans. The following presents the Company's funded status for 2000 and
1999 under SFAS No. 132 for its non-U.S. pension plans.
<TABLE>
<CAPTION>
Change in benefit obligation: 2000 1999
- ----------------------------------------------------------------------------
<S> <C> <C>
Benefit obligation at
beginning of period $ 133,206 $ 128,581
Service cost 6,754 6,984
Interest cost 7,390 7,116
Actuarial loss 2,123 2,659
Plan merger 3,275 --
Curtailment loss 1,614 --
Benefits paid (7,881) (8,899)
Employee contributions 1,403 1,282
Foreign exchange impact (10,758) (4,517)
- ----------------------------------------------------------------------------
Benefit obligation at end of period $ 137,126 $ 133,206
============================================================================
Change in plan assets:
- ----------------------------------------------------------------------------
Fair value of plan assets at
beginning of period $160,568 $145,601
Plan merger 2,289 --
Actual return on plan assets 4,980 19,712
Employer contributions 1,982 2,438
Benefits paid (7,881) (8,899)
Employee contributions 1,403 1,282
Foreign exchange impact (12,863) 434
- ----------------------------------------------------------------------------
Fair value of plan assets at end
of period $ 150,478 $ 160,568
- ----------------------------------------------------------------------------
41
<PAGE>
- ----------------------------------------------------------------------------
Funded status: 2000 1999
- ----------------------------------------------------------------------------
Plan assets in excess of benefit
obligation $ 13,352 $ 27,362
Unrecognized net obligation (asset) 335 (212)
Unrecognized net prior service cost 862 706
Unrecognized net actuarial loss 19,364 9,125
- ----------------------------------------------------------------------------
Prepaid pension cost at end of
period $ 33,913 $ 36,981
============================================================================
Amount recognized in the consolidated
balance sheet consists of:
Prepaid benefit cost $ 54,156 $ 57,364
Accrued benefit liability (23,410) (23,646)
Intangible asset 691 493
Accumulated other comprehensive income 2,476 2,770
- ----------------------------------------------------------------------------
Net amount recognized $ 33,913 $ 36,981
============================================================================
</TABLE>
The following presents the Company's pension expense for 2000, 1999 and from
April 1, 1998 to December 31, 1998 under SFAS No. 132 for its non-U.S. pension
plans.
<TABLE>
<CAPTION>
For period
April 1, 1998
Year ended Year ended to
Components of net periodic December 31, December 31, December 31,
benefit cost: 2000 1999 1998
- ------------------------------------------------------------------------
<S> <C> <C> <C>
Service cost $ 6,754 $ 6,984 $ 4,165
Interest cost 7,390 7,116 5,819
Expected return on plan
assets (13,060) (12,169) (9,766)
Amortization of asset (159) (487) (375)
Amortization of prior
service cost 115 106 79
Amortization of net loss 326 1,096 234
- ------------------------------------------------------------------------
Net periodic pension cost $ 1,366 $ 2,646 $ 156
========================================================================
</TABLE>
The projected benefit obligation, accumulated benefit obligation, and fair value
of plan assets for pension plans with accumulated benefit obligations in excess
of plan assets were $32,924, $28,440 and $4,920 as of December 31, 2000,
respectively, and $31,120, $25,428 and $5,007 as of December 31, 1999,
respectively.
The following significant assumptions were used in calculating the pension cost
and funded status presented above:
<TABLE>
<CAPTION>
2000 1999 1998
- -----------------------------------------------------------------------------------
<S> <C> <C> <C>
Discount rate at December 31 5.9% 5.7% 6.3%
Expected long-term rate of return 8.6% 8.6% 8.9%
Rate of compensation increase 3.9% 3.8% 4.0%
- -----------------------------------------------------------------------------------
</TABLE>
42
<PAGE>
NOTE 11 OTHER POSTRETIREMENT BENEFIT PLANS
The Company generally does not offer its employees postretirement benefits other
than certain programs which are required by the foreign countries in which the
Company operates and certain U.S. programs which are fully funded by the
participating retired employees. Such programs are not material to the Company's
consolidated financial statements.
During 1998, the Company amended an existing U.S. postretirement healthcare plan
which had the effect of curtailing benefits for substantially all future
retirees. As a result of this plan curtailment, the Company reflected a credit
to operations and a postretirement liability reduction of $23,610 during the
fourth quarter of 1998. At December 31, 2000 and 1999, the accrued benefit
liability amounted to $3,699 and $4,309, respectively. For the years ended
December 31, 2000 and 1999, there was a net postretirement credit to operations
of $610 and $607, respectively. For the year ended December 31, 1998, the net
periodic postretirement benefit cost was $331. These net periodic postretirement
credits, together with other remaining postretirement healthcare plan
disclosures under SFAS No. 132, are not material to the consolidated financial
statements.
NOTE 12 DEBT
A summary of long-term debt at December 31, 2000 and 1999 follows:
<TABLE>
<CAPTION>
December 31,
2000 1999
- ------------------------------------------------------------------------------------------
<S> <C> <C>
Credit Agreement due March 2003 $ 456,263 $ 160,978
5.625% Euro Notes due July 2006, less discount of $1,056
and $1,317 in 2000 and 1999, respectively 185,145 200,858
6.95% Senior Notes due May 2009, less discount of $1,909
and $2,071 in 2000 and 1999, respectively 298,091 297,929
Other 6,372 12,259
- ------------------------------------------------------------------------------------------
Total 945,871 672,024
Less current installments (1,418) (6,908)
- ------------------------------------------------------------------------------------------
Long-term debt, less current installments $ 944,453 $ 665,116
==========================================================================================
</TABLE>
The Company's two principal credit agreements (as amended, the "Credit
Agreements") are a 5-year $525,000 revolving credit facility that expires on
March 30, 2003 (included in long-term debt) and a 364-day $375,000 revolving
credit facility that expires on March 26, 2001 (included in short-term
borrowings). As of December 31, 2000 and 1999, outstanding borrowings were
$456,263 and $160,978, respectively, under the 5-year revolving credit
facility and $127,885 and $38,342, respectively, under the 364-day revolving
credit facility. The Credit Agreements provide that the Company and certain
of its subsidiaries may borrow for various purposes, including the
refinancing of existing debt, the provision of working capital and other
general corporate needs, including acquisitions, repurchase of the Company's
outstanding common and preferred stock and capital expenditures. Amounts
repaid under the Credit Agreements may be reborrowed from time to time. As of
December 31, 2000, facility fees were payable on the total amounts available
under the Credit Agreements and amounted to 0.095% and 0.100% per annum under
the 5-year revolving credit facility and the 364-day revolving credit
facility, respectively.
The Company's obligations under the Credit Agreements bear interest at floating
rates. The weighted average interest rate under the Credit Agreements was
approximately 7.0% at December 31, 2000 and 6.0% at December 31, 1999. The
Company had no interest rate and currency swaps outstanding at December 31,
2000, but had certain interest rate and currency swap agreements outstanding at
December 31, 1999, related to its obligations under the Credit Agreements. These
agreements had the effect of adjusting the
43
<PAGE>
interest rates on a portion of such debt. The weighted average interest rate
at December 31, 1999 did not change significantly as a result of these
derivative financial instruments.
At December 31, 2000, the Company was not party to any interest rate swaps. At
December 31, 1999, the Company was party to forward-starting interest rate swaps
with an aggregate notional amount of approximately $151,000 with various
expiration dates through November 2004. The interest rate swaps outstanding as
of December 31, 1999 had the effect of converting a portion of the Company's
fixed rate debt to floating rate debt at U.S. dollar-denominated rates which
ranged from 6.2% to 6.5% at December 31, 1999, and euro-denominated rates which
ranged from 3.8% to 4.4% at December 31, 1999.
The Credit Agreements provide for changes in borrowing margins based on
financial criteria and the Company's senior unsecured debt ratings. The Credit
Agreements, Senior Notes and Euro Notes impose certain limitations on the
operations of the Company and certain of its subsidiaries. The Company was in
compliance with these requirements as of December 31, 2000.
Debt at December 31, 2000 and 1999 also included $162,543 and $114,311,
respectively, of short-term borrowings by certain of the Company's non-U.S.
subsidiaries under committed and uncommitted local lines of credit and $6,372
and $12,259, respectively, of long-term debt incurred by certain of the
Company's U.S. and non-U.S. subsidiaries.
The Company had available lines of credit under the Credit Agreements and
other committed and uncommitted credit facilities of approximately $1,300,000
at December 31, 2000 and 1999, of which approximately $500,000 and $1,100,000
were unused at December 31, 2000 and 1999, respectively. The Company is not
subject to any material compensating balance requirements in connection with
its lines of credit.
Scheduled annual maturities of long-term debt, exclusive of debt discounts, for
the five years subsequent to December 31, 2000 are as follows: 2001 - $1,418;
2002 - $1,377; 2003 - $457,514; 2004 - $830; 2005 - $826; and thereafter -
$486,871.
44
<PAGE>
NOTE 13 FINANCIAL INSTRUMENTS
The Company is required by generally accepted accounting principles to disclose
its estimate of the fair value of material financial instruments, including
those recorded as assets or liabilities in its consolidated financial statements
and derivative financial instruments. The fair value of the Company's Senior
Notes, Euro Notes and Series A convertible preferred stock are based on quoted
market prices. The fair value estimates of the Company's various other debt
instruments were derived by evaluating the nature and terms of each instrument,
considering prevailing economic and market conditions, and examining the cost of
similar debt offered at the balance sheet date. Such estimates are subjective
and involve uncertainties and matters of significant judgment and therefore
cannot be determined with precision. Changes in assumptions could significantly
affect the Company's estimates.
All financial instruments inherently expose the holders to market risk,
including changes in currency and interest rates. The Company manages its
exposure to these market risks through its regular operating and financing
activities and when it considers appropriate, through the use of derivative
financial instruments.
The carrying amounts of current assets and liabilities approximate fair value
due to their short-term maturities. The carrying amounts and estimated fair
values of the Company's material financial instruments at December 31, 2000 and
1999 were as follows:
<TABLE>
<CAPTION>
2000 1999
Carrying Fair Carrying Fair
Amount Value Amount Value
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Financial assets:
Foreign exchange forward
contracts $ -- $ 253 $ -- $ --
- ------------------------------------------------------------------------------------------------------
Financial liabilities:
Debt:
Credit Agreements 584,148 584,148 199,320 199,320
Derivatives -- -- -- (85)
- ------------------------------------------------------------------------------------------------------
Credit Agreements, net 584,148 584,148 199,320 199,235
Senior Notes 298,091 257,832 297,929 273,263
Derivatives -- -- -- 857
- ------------------------------------------------------------------------------------------------------
Senior Notes, net 298,091 257,832 297,929 274,120
Euro Notes 185,145 148,066 200,858 188,545
Derivatives -- -- -- (20)
- ------------------------------------------------------------------------------------------------------
Euro Notes, net 185,145 148,066 200,858 188,525
Other foreign loans 165,114 165,210 123,462 123,853
Derivatives -- -- -- 423
- ------------------------------------------------------------------------------------------------------
Foreign loans, net 165,114 165,210 123,462 124,276
Other loans 3,801 3,994 3,108 2,609
- ------------------------------------------------------------------------------------------------------
Total debt $ 1,236,299 $ 1,159,250 $ 824,677 $ 788,765
======================================================================================================
Series A convertible
preferred stock $ 1,392,373 $ 849,348 $ 1,761,662 $ 1,779,279
======================================================================================================
</TABLE>
45
<PAGE>
The Company uses derivative financial instruments to manage its exposure to
fluctuations in interest rates and foreign exchange rates. The Company does not
purchase, hold or sell derivative financial instruments for trading purposes.
The Company uses interest rate swaps to manage its exposure to fluctuations in
interest rates. At December 31, 2000, the Company was not party to any interest
rate swaps. At December 31, 1999, the Company was party to forward-starting
interest rate swaps with an aggregate notional amount of approximately $151,000
with various expiration dates through November 2004. The forward-starting
interest rate swaps outstanding at December 31, 1999 had the effect of
converting a portion of the Company's fixed rate debt to floating rate debt at
U.S. dollar-denominated rates which ranged from 6.2% to 6.5% at December 31,
1999, and euro-denominated rates which ranged from 3.8% to 4.4% at December 31,
1999.
Interest rate collars are used to reduce the Company's exposure to fluctuations
in interest rates by limiting fluctuations in the rate of interest the Company
pays on a notional amount of debt. At December 31, 2000 and 1999, the Company
was party to an interest rate collar with an aggregate notional amount of
approximately $8,000 with an expiration date of June 2001.
The Company uses interest rate and currency swaps to gain access to additional
sources of international financing while limiting foreign exchange exposure and
limiting or adjusting interest rate exposure by swapping borrowings in U.S.
dollars for borrowings denominated in foreign currencies. At December 31, 2000,
the Company was not party to any interest rate and currency swaps compared with
an aggregate notional amount of approximately $5,000 and various expiration
dates through March 2002 at December 31, 1999.
The Company uses foreign currency forwards to fix the amount payable on
transactions denominated in foreign currencies. At December 31, 2000, the
Company was party to foreign currency forward contracts, maturing through
December 2001, with an aggregate notional amount of approximately $13,800. The
Company was not party to any material foreign currency forwards at December 31,
1999.
The fair values of the Company's various derivative instruments, as advised by
the Company's bankers, generally reflect the estimated amounts that the Company
would receive or pay to terminate the contracts at the reporting date.
Unrealized and realized gains and losses on the Company's financial instruments
and derivatives were not material to the consolidated financial statements in
2000, 1999 or 1998.
The Company is exposed to credit losses in the event of the inability of the
counterparties to its outstanding derivative contracts to perform their
obligations, but it does not expect any counterparties to fail to perform given
their high credit ratings and financial strength. The Company believes that its
exposure to losses in conjunction with its derivative contracts would not be
material in the case of non-performance on the part of the counterparties to
such agreements.
NOTE 14 SHAREHOLDERS' EQUITY
COMMON STOCK
The following is a summary of changes during 2000, 1999 and 1998 in shares of
common stock:
<TABLE>
<CAPTION>
2000 1999 1998
- ------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Changes in common stock:
Number of shares, beginning of year 84,135,255 83,806,361 --
Cryovac Transaction share issuances -- -- 83,272,061
Shares issued for contingent stock 183,050 246,300 522,300
Non-cash compensation 10,800 13,000 12,000
Conversion of preferred stock 1,008 5,483 --
Exercise of stock options 22,379 64,111 --
- ------------------------------------------------------------------------------------------
Number of shares issued, end of year 84,352,492 84,135,255 83,806,361
==========================================================================================
</TABLE>
46
<PAGE>
<TABLE>
<CAPTION>
2000 1999 1998
- ------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Changes in common stock in treasury:
Number of shares held, beginning of year 535,356 494,550 --
Contingent stock forfeited 21,550 15,400 3,550
Purchase of shares during period 494,737 251,000 491,000
Non-cash compensation (60,000) (50,000) --
Profit sharing contribution (285,378) (175,594) --
- ------------------------------------------------------------------------------------------
Number of shares held, end of year 706,265 535,356 494,550
==========================================================================================
</TABLE>
CONTINGENT STOCK PLAN AND DIRECTORS STOCK PLAN
The Company's contingent stock plan provides for the granting to employees of
awards to purchase common stock (during the succeeding 60-day period) for less
than 100% of fair market value at the date of award. Shares issued under the
contingent stock plan ("contingent stock") are restricted as to disposition by
the holders for a period of at least three years after award. In the event of
termination of employment prior to lapse of the restriction, the shares are
subject to an option to repurchase by the Company at the price at which the
shares were issued. Such restriction lapses prior to the expiration of the
vesting period if certain events occur that affect the existence or control of
the Company. The aggregate fair value of contingent stock issued is credited to
common stock and additional paid-in capital accounts, and the unamortized
portion of the compensation is deducted from shareholders' equity. The excess of
fair value over the award price of contingent stock is charged to operations as
compensation expense over a three-year period. Such charges amounted to $16,015,
$15,679 and $10,732 in 2000, 1999 and 1998, respectively.
Non-cash compensation includes shares issued to non-employee directors in the
form of awards under the Company's restricted stock plan for non-employee
directors (the "Directors Stock Plan"). The Directors Stock Plan provides for
annual grants of shares to non-employee directors, and interim grants of shares
to eligible directors elected at other than an annual meeting, at an amount less
than 100% of fair value at date of grant, as all or part of the annual retainer
fees for non-employee directors. Shares issued under this plan are restricted as
to disposition by the holders as long as such holders remain directors of the
Company. The excess of fair value over the price at which shares are issued
under this plan is charged to operations at the date of such grant. Such charges
amounted to $587, $842 and $437 in 2000, 1999 and 1998, respectively.
Amortization expense related to the issuance of 60,000 and 50,000 shares in 2000
and 1999, respectively, of the Company's common stock in exchange for certain
non-employee consulting services was $1,474 and $269, respectively. Such shares
vest ratably over a three to five year period and are amortized on a
straight-line basis.
The Company has adopted only the disclosure provisions of SFAS No. 123,
"Accounting for Stock-Based Compensation," but applies APB No. 25 and related
interpretations in accounting for these plans. Since the compensation cost noted
above is consistent with the compensation cost that would have been recognized
for such plans under the provisions of SFAS No. 123, the pro forma disclosure
requirements under such statement are not applicable for these plans.
A summary of the changes in shares available for the Contingent Stock Plan and
the Directors Stock Plan follows:
<TABLE>
<CAPTION>
2000 1999 1998
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Changes in Contingent Stock Plan shares:
Number of shares available, beginning of year 1,748,550 1,978,450 --
Establishment of plan following the Cryovac
Transaction -- -- 450,450
Increase in shares authorized during the year -- -- 2,049,550
Shares issued for new awards (183,050) (246,300) (522,300)
Contingent stock forfeited 21,550 16,400 750
- ------------------------------------------------------------------------------------------------------
Number of shares available, end of year 1,587,050 1,748,550 1,978,450
- ------------------------------------------------------------------------------------------------------
Weighted average per share market value of
stock on grant date $ 48.96 $ 55.19 $ 58.37
======================================================================================================
</TABLE>
47
<PAGE>
<TABLE>
<CAPTION>
2000 1999 1998
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Changes in Directors Stock Plan shares:
Number of shares available, beginning of year 75,000 88,000 --
Establishment of plan following the Cryovac
Transaction -- -- 100,000
Shares issued for new awards (10,800) (13,000) (12,000)
- ------------------------------------------------------------------------------------------------------
Number of shares available, end of year 64,200 75,000 88,000
- ------------------------------------------------------------------------------------------------------
Weighted average per share market value of
stock on grant date $ 55.31 $ 64.88 $ 36.33
======================================================================================================
</TABLE>
REDEEMABLE PREFERRED STOCK - SERIES A CONVERTIBLE PREFERRED STOCK
The outstanding preferred stock is convertible at any time into approximately
0.885 share of common stock for each share of preferred stock, votes with the
common stock on an as-converted basis, pays a cash dividend, as declared by the
Board of Directors, at an annual rate of $2.00 per share, payable quarterly in
arrears, becomes redeemable at the option of the Company beginning March 31,
2001, subject to certain conditions, and is subject to mandatory redemption on
March 31, 2018 at $50 per share, plus any accrued and unpaid dividends to the
extent such shares remain outstanding. Because it is subject to mandatory
redemption, the convertible preferred stock is classified outside of the
shareholders' equity section of the balance sheet. At its date of issuance, the
fair value of the convertible preferred stock exceeded its mandatory redemption
amount primarily due to the common stock conversion feature of such preferred
stock. Accordingly, the carrying amount of the convertible preferred stock is
reflected in the consolidated balance sheet at its mandatory redemption value.
The following is a summary of changes during 2000, 1999 and 1998 in shares of
the Company's Series A preferred stock:
<TABLE>
<CAPTION>
2000 1999 1998
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Changes in preferred stock:
Number of shares issued, beginning of
year 36,015,645 36,021,851 --
Conversion of preferred stock (1,146) (6,206) --
Cryovac Transaction share issuances -- -- 36,021,851
Retired (7,732,137) -- --
- ---------------------------------------------------------------------------------------------------
Number of shares issued, end of year 28,282,362 36,015,645 36,021,851
- ---------------------------------------------------------------------------------------------------
Changes in preferred stock in treasury:
Number of shares held, beginning of year 782,400 200,000 --
Purchase of shares during period 7,384,637 582,400 200,000
Retired (7,732,137) -- --
- ---------------------------------------------------------------------------------------------------
Number of shares held, end of year 434,900 782,400 200,000
- ---------------------------------------------------------------------------------------------------
</TABLE>
STOCK OPTIONS
Stock option plans in which certain employees of the Company participated were
terminated effective March 31, 1998 except with respect to options that were
still outstanding as of such date. Such options, which were granted at an
exercise price equal to their fair market value on the date of grant, have terms
of up to ten years and one month from the date of grant. No options have been
granted since 1997.
During 2000 and 1999, 22,379 and 64,111 options, respectively, were exercised
with an aggregate exercise price of $860 and $2,029, respectively. At December
31, 2000 and December 31, 1999, 395,116 and 426,066 options, respectively, to
purchase shares of common stock were outstanding at an average per share
exercise price of $37.66 and $37.83, respectively.
48
<PAGE>
The pro forma effect on earnings and earnings per common share of applying SFAS
No. 123 for those options granted to employees prior to termination of the plans
were as follows:
<TABLE>
<CAPTION>
Year Ended December 31,
- ----------------------------------------------------------------------------------------
2000 1999 1998
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C>
Net earnings ascribed to
common shareholders:
As reported $ 206,366 $ 141,607 $ 2,873
Pro forma (1) 206,191 140,867 1,673
- ----------------------------------------------------------------------------------------
Basic earnings per common share:
As reported $ 2.47 $ 1.69 $ 0.04
Pro forma (1) 2.46 1.69 0.02
- ----------------------------------------------------------------------------------------
Diluted earnings per common share:
As reported $ 1.93 $ 1.68 $ 0.02
Pro forma (1) 1.93 1.67 0.00
- ----------------------------------------------------------------------------------------
</TABLE>
(1) These pro forma amounts calculated in accordance with SFAS No. 123 may not
be indicative of future net earnings or earnings per common share effects.
The fair value of 1997 option grants, the last year in which options were
granted before termination of the plans, after giving effect to adjustments
provided for in the Transaction Agreements was estimated using the Black-Scholes
option pricing model with the following historical weighted average assumptions:
dividend yields of 1%; expected volatility of 29%; risk-free interest rates of
6%; and 4 years of expected life.
Based on the above assumptions, the weighted-average fair value of each option
granted in 1997 was $10.60 after giving effect to the Cryovac Transaction.
CRYOVAC TRANSACTION
In connection with the Cryovac Transaction, certain assets and liabilities of
Cryovac were retained by New Grace as contemplated by the Transaction
Agreements. Accordingly, as of March 31, 1998, these assets and liabilities were
accounted for as an equity contribution to the Company from Grace, net of
related deferred income taxes. Certain other assets and liabilities related to
non-U.S. pension plans, deferred income tax liabilities and other items arising
directly from the Cryovac Transaction have been accounted for as a contribution
to, or distribution from, Cryovac.
The following is a summary of the net activity affecting the Company's equity in
connection with the Cryovac Transaction during 1998:
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------
<S> <C>
Assets transferred to the Company $ 81,905
Liabilities retained by New Grace 51,671
Liabilities transferred to the Company (24,926)
Tax adjustment, including deferred taxes (64,342)
Net advances to Grace (20,369)
- ----------------------------------------------------------------------------------------
$ 23,939
========================================================================================
</TABLE>
Prior to the Cryovac Transaction, the Company did not have a separately
identifiable capital structure. Therefore, shareholders' equity prior to
March 31, 1998 represents the net assets of Cryovac.
49
<PAGE>
NOTE 15 SUPPLEMENTARY CASH FLOW INFORMATION
<TABLE>
<CAPTION>
2000 1999 1998
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Interest payments, net of amounts capitalized $ 58,684 51,810 $47,997
Income tax payments 176,235 172,980 80,069
Non-cash items:
Issuance of shares of common stock to the
profit sharing plan $ 13,877 $ 8,823 $ --
</TABLE>
The consolidated statement of cash flows for the year ended December 31, 1998
excludes the following non-cash transactions that were accounted for as changes
in additional paid-in capital:
<TABLE>
<CAPTION>
<S> <C>
Issuance of 36,021,851 shares of Series A convertible
preferred stock and 40,647,815 shares of common stock in
connection with the Cryovac Transaction $ 1,801,093
Net assets of old Sealed Air acquired in the Cryovac
Transaction in exchange for 42,624,246 shares of common stock 2,110,752
Liabilities assumed by the Company, net (7,363)
Liabilities retained by New Grace 51,671
</TABLE>
NOTE 16 EARNINGS PER COMMON SHARE
In calculating basic and diluted earnings per common share, the weighted average
number of common shares used considers the exercise of dilutive stock options in
each year as well as the repurchase of preferred stock in each period. Except as
noted in the table below, the outstanding preferred stock is not assumed to be
converted in the calculation of diluted earnings per common share because the
treatment of the preferred stock as the common stock into which it is
convertible would be anti-dilutive (i.e., would increase earnings per common
share) in those years. In calculating basic and diluted earnings per common
share for 1998, retroactive recognition has been given to the Cryovac
Transaction as if it had occurred on January 1, 1998 in accordance with SAB No.
98. Accordingly, net earnings were reduced in such year for preferred stock
dividends (as if such shares had been outstanding during the first quarter of
1998) to arrive at earnings ascribed to common shareholders. The weighted
average number of outstanding common shares used to calculate basic earnings per
common share in such years was calculated on an equivalent share basis using the
weighted average number of shares of common stock outstanding for the first
quarter of 1998, adjusted to reflect the terms of the Cryovac Transaction.
The following table sets forth the reconciliation of the basic and diluted
earnings per common share computations for the years ended December 31, 2000,
1999 and 1998 (shares in thousands).
<TABLE>
<CAPTION>
2000 1999 1998 (1)
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Basic EPS:
NUMERATOR
- ---------
Net earnings $225,319 $211,461 $ 73,007
Add: Excess of book value over repurchase price
of preferred stock 45,283 1,568 1,798
Less: Preferred stock dividends 64,266 71,422 53,921
Less: Retroactive recognition of preferred stock
dividends -- -- 18,011
- -------------------------------------------------------------------------------------------
Earnings ascribed to common shareholders $206,336 $141,607 $ 2,873
- -------------------------------------------------------------------------------------------
DENOMINATOR
- -----------
Weighted average common shares outstanding -
basic 83,672 83,553 72,997
- -------------------------------------------------------------------------------------------
Basic earnings per common share $ 2.47 $ 1.69 $ 0.04
===========================================================================================
</TABLE>
50
<PAGE>
<TABLE>
<CAPTION>
2000 1999 1998 (1)
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Diluted EPS:
NUMERATOR
- ---------
Earnings ascribed to common shareholders $206,336 $141,607 $ 2,873
Add: Dividends associated with preferred stock
repurchased 8,423 916 316
Less: Excess of book value over repurchase of
preferred stock 45,283 1,568 1,798
- -------------------------------------------------------------------------------------------
Earnings ascribed to common shareholders-diluted $169,476 $140,955 $ 1,391
===========================================================================================
DENOMINATOR
- -----------
Weighted average common shares outstanding -
basic 83,672 83,553 72,997
Effect of assumed exercise of options 90 131 118
Weighted average of preferred stock purchased 4,189 444 158
- -------------------------------------------------------------------------------------------
Weighted average common shares outstanding -
diluted 87,951 84,128 73,273
- -------------------------------------------------------------------------------------------
Diluted earnings per common share $ 1.93 $ 1.68 $ 0.02
===========================================================================================
</TABLE>
(1) Such earnings per common share amounts are not necessarily indicative of the
results that would have occurred had Cryovac been a stand-alone company
prior to the Cryovac Transaction.
NOTE 17 COMMITMENTS AND CONTINGENCIES
The Company is obligated under the terms of various leases covering many of the
facilities that it occupies. The Company accounts for substantially all of its
leases as operating leases. Net rental expense was $23,497, $24,667 and $20,873
for 2000, 1999 and 1998, respectively. Estimated future minimum annual rental
commitments under noncancelable real property leases are as follows: 2001 -
$22,321; 2002 - $17,074; 2003 - $11,492; 2004 - $7,972; 2005 - $5,798; and
subsequent years - $9,407.
In connection with the Cryovac Transaction, New Grace and its subsidiaries
retained all liabilities of Grace, whether accruing or occurring before or after
the Cryovac Transaction, other than liabilities arising from or relating to
Cryovac's operations. The liabilities retained by New Grace include, among
others, liabilities relating to asbestos-containing products previously
manufactured or sold by Grace subsidiaries, including its primary U.S. operating
subsidiary, which has operated for decades and has been a subsidiary of New
Grace since the Cryovac Transaction. The Transaction Agreements provided that,
should any claimant seek to hold the Company, including any of its subsidiaries,
responsible for liabilities of New Grace or its subsidiaries, including such
asbestos-related liabilities, New Grace and its subsidiaries would indemnify and
defend the Company.
Since the beginning of 2000, the Company has been served with a number of
lawsuits alleging that, as a result of the Cryovac Transaction, the Company
is responsible for alleged asbestos liabilities of New Grace and its
subsidiaries, certain of which are also named as co-defendants in these
actions. These actions include several purported class action lawsuits and
a number of personal injury lawsuits. Some plaintiffs seek damages for personal
injury or wrongful death while others seek medical monitoring, environmental
remediation or remedies related to an attic insulation product. While the
allegations in these actions directed to the Company vary, these actions all
appear to allege that the Cryovac Transaction was a fraudulent transfer or
gave rise to successor liability. These cases are all in the pre-trial stage,
and none has been resolved through judgment, settlement or otherwise.
The Company believes that it is well-positioned to defend itself successfully in
any asbestos-related claims against it, including the actions described above.
Neither old Sealed Air nor Cryovac has ever produced or sold any
asbestos-containing products. To the extent that the Company is named in any
asbestos-related actions, the Company intends to defend its interests
vigorously. However, an adverse outcome could have a material adverse effect on
the Company's results of operations or consolidated financial position. While it
is not possible to predict the outcome of any litigation, based on the facts
known to the Company, the Company does not believe that an adverse outcome is
probable. Thus, in accordance with generally accepted accounting principles, the
Company has not recorded any liability in its financial statements for these
actions.
The Company's legal defense costs to date (including costs paid by New Grace
under the Transaction Agreements) have not
51
<PAGE>
been material. In late January 2001, New Grace announced that it was
reviewing the strategic and operating issues associated with continuing to
defend asbestos litigation through the court system versus seeking a
resolution of such litigation through reorganization under Chapter 11 of the
U.S. Bankruptcy Code. If New Grace were to file under Chapter 11 of the
Bankruptcy Code, that would not alter the Company's views expressed in the
preceding paragraph. If New Grace files under Chapter 11 or fails to
indemnify and defend the Company, the Company could incur additional
asbestos-related costs that could become material to the Company's results of
operations or consolidated financial position.
In addition to the non-Cryovac liabilities referred to above, New Grace also
agreed to retain certain liabilities of Cryovac and to indemnify the Company
against such liabilities. The Company may remain contingently liable with
respect to certain of such liabilities if New Grace were to fail to indemnify
the Company or file under Chapter 11. Based upon currently available
information, the Company believes that future costs, if any, related to such
liabilities will not have a material adverse effect on the Company's results
of operations or consolidated financial position.
The Company is the guarantor of certain outstanding public debt that was assumed
by New Grace pursuant to the Transaction Agreements. Approximately $8,000 of
such debt was outstanding at December 31, 2000. New Grace has indemnified the
Company against any liability arising under such guarantee pursuant to the
Transaction Agreements. However, if New Grace were to file under Chapter 11 of
the Bankruptcy Code, the Company could become responsible for such debt, to the
extent it was then outstanding, under such guarantee.
Pursuant to the Transaction Agreements, final determinations and accountings are
necessary with respect to matters pertaining to the Cryovac Transaction. The
Company believes that the final outcome of such matters will not have a material
effect on its consolidated financial position.
The Company's worldwide operations are subject to environmental laws and
regulations which, among other things, impose limitations on the discharge of
pollutants into the air and water and establish standards for the treatment,
storage and disposal of solid and hazardous wastes. The Company reviews the
effects of environmental laws and regulations on its operations and believes
that it is in substantial compliance with all material applicable environmental
laws and regulations.
At December 31, 2000 and 1999, the Company was a party to, or otherwise
involved in, several federal and state government environmental proceedings
and private environmental claims for the cleanup of Superfund or other sites.
The Company may have potential liability for investigation and cleanup of
certain of such sites. At most of such sites, numerous companies, including
either the Company or one of its predecessor companies, have been identified
as potentially responsible parties ("PRPs") under Superfund or related laws.
It is the Company's policy to provide for environmental cleanup costs if it
is probable that a liability has been incurred and if an amount which is
within the estimated range of the costs associated with various alternative
remediation strategies is reasonably estimable, without giving effect to any
possible future insurance proceeds. As assessments and cleanups proceed,
these liabilities are reviewed periodically and adjusted as additional
information becomes available. At December 31, 2000 and 1999, such
environmental related provisions were not material. While it is often
difficult to estimate potential liabilities and the future impact of
environmental matters, based upon the information currently available to the
Company and its experience in dealing with such matters, the Company believes
that its potential future liability with respect to such sites is not
material to the Company's results of operations or consolidated financial
position. The Company is also involved in various other legal actions
incidental to its business. Company management believes, after consulting
with counsel, that the disposition of these other legal proceedings and
matters will not have a material effect on the Company's results of
operations or consolidated financial position.
52
<PAGE>
NOTE 18 INTERIM FINANCIAL INFORMATION (UNAUDITED)
<TABLE>
<CAPTION>
First Second Third Fourth
(Amounts in thousands, except for per share data) Quarter Quarter Quarter Quarter
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
2000
Net sales (1) $741,464 $756,841 $773,255 $796,154
Gross profit 257,989 253,973 253,434 269,908
Net earnings 54,983 53,831 54,714 61,791
Preferred stock dividends 17,097 17,002 15,991 14,176
Earnings per common share - basic (2) 0.49 0.44 0.57 0.97
Earnings per common share -
diluted (2) 0.45 0.44 0.46 0.56
1999
Net sales (1) $700,387 $718,342 $736,639 $776,485
Gross profit 245,698 253,580 257,204 272,240
Net earnings 46,614 51,192 53,712 59,943
Preferred stock dividends 17,910 17,879 17,879 17,754
Earnings per common share - basic (2) 0.34 0.40 0.43 0.52
Earnings per common share -
diluted (2) 0.34 0.40 0.43 0.50
=========================================================================================================
</TABLE>
(1) See Note 2 regarding the reclassification of net sales related to the
adoption of EITF No. 00-10.
(2) The sum of the four quarter's earnings per common share may not equal the
amounts reported for the full year since each period is calculated
separately.
53
<PAGE>
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
To the Board of Directors and Shareholders
of Sealed Air Corporation
We have audited the accompanying consolidated balance sheets of Sealed Air
Corporation and subsidiaries as of December 31, 2000 and 1999, and the related
consolidated statements of earnings, equity, cash flows, and comprehensive
income for each of the years in the three-year period ended December 31, 2000.
These consolidated financial statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on these consolidated
financial statements based on our audits.
We conducted our audits in accordance with auditing standards generally accepted
in the United States of America. Those standards require that we plan and
perform the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the financial position of Sealed Air
Corporation and subsidiaries as of December 31, 2000 and 1999, and the results
of their operations and their cash flows for each of the years in the three-year
period ended December 31, 2000 in conformity with accounting principles
generally accepted in the United States of America.
/s/ KPMG LLP
- -----------
KPMG LLP
Short Hills, New Jersey
January 25, 2001
54
<PAGE>
<TABLE>
<CAPTION>
COMMON STOCK
1999 High Low
<S> <C> <C>
First Quarter $ 56-3/4 $ 46-3/4
Second Quarter $ 68-7/16 $ 48-2/16
Third Quarter $ 65-7/8 $ 51-2/16
Fourth Quarter $ 58-2/16 $ 44-9/16
- ----------------------------------------------------------------------------------------
2000 High Low
First Quarter $ 61-14/16 $ 43-3/8
Second Quarter $ 59-1/2 $ 50-10/16
Third Quarter $ 54-3/4 $ 43-13/16
Fourth Quarter $ 52-1/2 $ 26-6/16
- ----------------------------------------------------------------------------------------
PREFERRED STOCK
1999 High Low
First Quarter $ 55 $ 48
Second Quarter $ 65 $ 48-3/4
Third Quarter $ 62-3/4 $ 50
Fourth Quarter $ 56 $ 46-11/16
- ----------------------------------------------------------------------------------------
2000 High Low
First Quarter $ 57-15/16 $ 43-2/16
Second Quarter $ 56 $ 48
Third Quarter $ 51-15/16 $ 43-1/2
Fourth Quarter $ 50-1/2 $ 29-2/16
- ----------------------------------------------------------------------------------------
</TABLE>
Capital Stock Information
The Company's Common Stock is listed on the New York Stock Exchange (trading
symbol: SEE). The adjacent table sets forth the quarterly high and low sales
prices of the Common Stock for 1999 and 2000. No dividends were paid on the
Common Stock in either year. The Company does not currently intend to begin
paying dividends on its Common Stock. As of March 9, 2001, there were
approximately 10,078 holders of record of the Company's Common Stock.
The Company's Series A Convertible Preferred Stock is also listed on the New
York Stock Exchange (trading symbol: SEE PrA). The adjacent table sets forth the
quarterly high and low sales prices for the Series A Preferred Stock for 1999
and 2000. Quarterly dividends of $0.50 per share were paid on the Preferred
Stock in each year. As of March 9, 2001, there were approximately 8,274 holders
of record of the Preferred Stock.
58
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-21
<SEQUENCE>10
<FILENAME>a2040779zex-21.txt
<DESCRIPTION>EXHIBIT 21
<TEXT>
<PAGE>
EXHIBIT 21
SUBSIDIARIES OF THE COMPANY
The following table sets forth the name and state or other jurisdiction of
incorporation of the Company's subsidiaries. Except as otherwise indicated, each
subsidiary is wholly owned, directly or indirectly, by the Company and does
business under its corporate name.
<TABLE>
<S> <C>
C.B. Packaging LLC Delaware
Creative Packaging Corporation* Japan
Cryovac Australia Pty. Ltd. Australia
Cryovac Brazil Ltda. Brazil
Cryovac Chile Holdings, LLC Delaware
Cryovac China Holdings I, Inc. Cayman Islands, BWI
Cryovac Embalagens Ltda. Brazil
Cryovac Far East Holdings, LLC. Delaware
Cryovac (Gaoming) Co., Ltd.** China
Cryovac Holdings, LLC Delaware
Cryovac Holdings, S.A. de C.V. Mexico
Cryovac, Inc. Delaware
Cryovac India Private Limited India
Cryovac International Holdings, Inc. Delaware
Cryovac Japan K.K. Japan
Cryovac (Malaysia) Sdn. Bhd. Malaysia
Cryovac Packaging Portugal Embalagens, Portugal
Lda.
Cryovac (Philippines) Inc. Philippines
Cryovac Poland Holdings, Inc. Delaware
Cryovac Poland Sp. z.o.o. Poland
Cryovac Rigid Packaging Pty. Ltd. Australia
Cryovac (Singapore) Pte. Ltd. Singapore
Cryovac Systems Hong Kong Limited Hong Kong
Cryovac (Thailand) Limited Thailand
Dolphin Packaging (Cheltenham) Limited England
Dolphin Packaging (Holdings) Limited England
Dolphin Packaging (Holland) B.V. Netherlands
Dolphin Packaging Limited England
Dolphin Packaging Limited Ireland
Drypac Pty. Ltd. Australia
Flightprime Limited England
Invertol S.A. de C.V. Mexico
Kelder Plastibox B.V. Netherlands
Noja Inmobiliaria, S.A. de C.V. Mexico
Omni Supply Inc.** North Carolina
OOO Sealed Air Russia
Polymask Corporation* Delaware
Polypride, Inc. Delaware
Producembal-Producao de Embalagens, Lda Portugal
Reflectix, Inc. Delaware
Sealed Air Africa (Pty) Ltd. South Africa
Sealed Air AG Switzerland
Sealed Air Argentina S.A. Argentina
Sealed Air Australia Pty. Limited Queensland, Australia
Sealed Air Brasil Ltda. Brazil
</TABLE>
<PAGE>
<TABLE>
<S> <C>
Sealed Air Belgium nv Belgium
Sealed Air B.V. Netherlands
Sealed Air (Canada) Inc. Ontario, Canada
Sealed Air Central America, S.A. Guatemala
Sealed Air Chile Industrial Ltda. Chile
Sealed Air Colombia Ltda. Colombia
Sealed Air Corporation (US) Delaware
Sealed Air de Mexico, S.A. de C.V. Mexico
Sealed Air Denmark A/S Denmark
Sealed Air de Venezuela, S.A. Venezuela
Sealed Air Embalagens Ltda. Brazil
Sealed Air Finance B.V. Netherlands
Sealed Air Finance II B.V. Netherlands
Sealed Air Finance Ireland Ireland
Sealed Air Foreign Sales Corp. Barbados
Sealed Air (Gaoming) Packaging Co., Ltd. China
Sealed Air GmbH Germany
Sealed Air Hellas S.A. Greece
Sealed Air Holdings B.V. Netherlands
Sealed Air Holdings (New Zealand) Limited New Zealand
Sealed Air (Hong Kong) Limited Hong Kong
Sealed Air Hungary Ltd. Hungary
Sealed Air International LLC England
Sealed Air Ireland Limited Ireland
Sealed Air (Israel) Ltd. Israel
Sealed Air Japan Limited Nevada
Sealed Air Korea Limited Korea
Sealed Air Limited England
Sealed Air Limited Ireland
Sealed Air LLC Delaware
Sealed Air (Malaysia) Sdn. Bhd. Malaysia
Sealed Air Multiflex GmbH Germany
Sealed Air Norge AS Norway
Sealed Air (New Zealand) Limited New Zealand
Sealed Air Oy Finland
Sealed Air Packaging Holdings (Israel) Israel
Ltd.
Sealed Air Packaging Limited England
Sealed Air Packaging S.A. France
Sealed Air Packaging, S.A. Spain
Sealed Air Packaging (Shanghai) Co., Ltd. China
Sealed Air Packaging Srl Italy
Sealed Air Peru S.R.L. Peru
Sealed Air (Philippines) Inc. Philippines
Sealed Air S.A.S. France
Sealed Air (Singapore) Pte. Limited Singapore
Sealed Air S.L. Spain
Sealed Air Polska Sp. z.o.o. Poland
Sealed Air Srl Italy
Sealed Air s.r.o Czech Republic
Sealed Air Svenska AB Sweden
Sealed Air Taiwan Limited Taiwan
</TABLE>
<PAGE>
<TABLE>
<S> <C>
Sealed Air (Thailand) Limited Thailand
Sealed Air Trucking, Inc. Delaware
Sealed Air Uruguay S.A. Uruguay
Sealed Air Verpackungen GmbH Germany
Shanklin Corporation Delaware
Soinpar Industrial Ltda. Brazil
Tart s.r.o*** Czech Republic
ZAO Sealed Air Kaustik** Russia
</TABLE>
- ------------------------
* The Company directly or indirectly owns 50% of the outstanding shares.
** The Company directly or indirectly owns a majority of the outstanding
shares.
*** The Company directly or indirectly owns less than 50% of the outstanding
shares.
Certain subsidiaries are omitted from the above table. Such subsidiaries, if
considered in the aggregate as a single subsidiary, would not constitute a
significant subsidiary as of December 31, 2000.
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-23
<SEQUENCE>11
<FILENAME>a2040779zex-23.txt
<DESCRIPTION>EXHIBIT 23
<TEXT>
<PAGE>
Exhibit 23
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Sealed Air Corporation:
We consent to incorporation by reference in Registration Statements on Form
S-8 (Nos. 333-50603, 333-59197, 333-59195 and 333-42966) of Sealed Air
Corporation of our reports dated January 25, 2001, relating to the
consolidated balance sheets of Sealed Air Corporation and subsidiaries as of
December 31, 2000 and 1999, and the related consolidated statements of
earnings, equity, cash flows, and comprehensive income for each of the years
in the three-year period ended December 31, 2000, and the related schedule,
which reports appear in or are incorporated by reference in this Annual
Report on Form 10-K.
/s/ KPMG LLP
KPMG LLP
Short Hills, New Jersey
March 23, 2001
</TEXT>
</DOCUMENT>
</SEC-DOCUMENT>
-----END PRIVACY-ENHANCED MESSAGE-----