Commitments and Contingencies | 9 Months Ended | ||||||||||||||
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Sep. 30, 2011 | |||||||||||||||
Commitments and Contingencies [Abstract] | |||||||||||||||
Commitments and Contingencies |
(13) Commitments and Contingencies
Cryovac Transaction Commitments and Contingencies
Settlement Agreement and Related Costs
On November 27, 2002, we reached an agreement in principle with the Committees appointed to
represent asbestos claimants in the bankruptcy case of W. R. Grace & Co., known as Grace, to
resolve all current and future asbestos-related claims made against the Company and our affiliates
in connection with the Cryovac transaction described below (as memorialized by the parties in the
Settlement agreement and as approved by the Bankruptcy Court, the “Settlement agreement”). The
Settlement agreement will also resolve the fraudulent transfer claims and successor liability
claims, as well as indemnification claims by Fresenius Medical Care Holdings, Inc. and affiliated
companies, in connection with the Cryovac transaction. On December 3, 2002, our Board of Directors
approved the agreement in principle. We received notice that both of the Committees had approved
the agreement in principle as of December 5, 2002. The parties subsequently signed the definitive
Settlement agreement as of November 10, 2003 consistent with the terms of the agreement in
principle. For a description of the Cryovac transaction, asbestos-related claims and the parties
involved, see “Cryovac Transaction” “Discussion of Cryovac Transaction Commitments and
Contingencies,” “Fresenius Claims,” “Canadian Claims” and “Additional Matters Related to the
Cryovac Transaction” below.
We recorded a pre-tax charge of approximately $850 million as a result of the Settlement
agreement on our condensed consolidated statement of operations for the year ended December 31,
2002. The charge consisted of the following items:
Settlement agreement and related costs reflected legal and related fees for Settlement-related
matters of $0.2 million for the three months ended September 30, 2011, $0.8 million for the nine
months ended September 30, 2011, zero for the three months ended September 30, 2010, and $0.6
million for the nine months ended September 30, 2010, which are included in other income (expense),
net, on our condensed consolidated statements of operations.
Cryovac Transaction
On March 31, 1998, we completed a multi-step transaction that brought the Cryovac packaging
business and the former Sealed Air Corporation’s business under the common ownership of the
Company. These businesses operate as subsidiaries of the Company, and the Company acts as a holding
company. As part of that transaction, the parties separated the Cryovac packaging business, which
previously had been held by various direct and indirect subsidiaries of the Company, from the
remaining businesses previously held by the Company. The parties then arranged for the contribution
of these remaining businesses to a company now known as W. R. Grace & Co., and the Company
distributed the Grace shares to the Company’s stockholders. As a result, W. R. Grace & Co. became a
separate publicly owned company. 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, which became a subsidiary of the Company and changed
its name to Sealed Air Corporation (US).
Discussion of Cryovac Transaction Commitments and Contingencies
In connection with the Cryovac transaction, Grace and its subsidiaries retained all
liabilities arising out of their operations before the Cryovac transaction, whether accruing or
occurring before or after the Cryovac transaction, other than liabilities arising from or relating
to Cryovac’s operations. Among the liabilities retained by Grace are liabilities relating to
asbestos-containing products previously manufactured or sold by Grace’s subsidiaries prior to the
Cryovac transaction, including its primary U.S. operating subsidiary, W. R. Grace & Co. — Conn.,
which has operated for decades and has been a subsidiary of Grace since the Cryovac transaction.
The Cryovac transaction agreements provided that, should any claimant seek to hold the Company or any of its subsidiaries responsible
for liabilities retained by Grace or its subsidiaries, including the asbestos-related liabilities,
Grace and its subsidiaries would indemnify and defend us.
Since the beginning of 2000, we have been served with a number of lawsuits alleging that, as a
result of the Cryovac transaction, we are responsible for alleged asbestos liabilities of Grace and
its subsidiaries, some of which were also named as co-defendants in some of these actions. Among
these lawsuits are several purported class actions 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. Neither
the former Sealed Air Corporation nor Cryovac, Inc. ever produced or sold any of the
asbestos-containing materials that are the subjects of these cases. None of these cases has reached
resolution through judgment, settlement or otherwise. As discussed below, Grace’s Chapter 11
bankruptcy proceeding has stayed all of these cases.
While the allegations in these actions directed to us vary, these actions all appear to allege
that the transfer of the Cryovac business as part of the Cryovac transaction was a fraudulent
transfer or gave rise to successor liability. Under a theory of successor liability, plaintiffs
with claims against Grace and its subsidiaries may attempt to hold us liable for liabilities that
arose with respect to activities conducted prior to the Cryovac transaction by W. R. Grace & Co. —
Conn. or other Grace subsidiaries. A transfer would be a fraudulent transfer if the transferor
received less than reasonably equivalent value and the transferor was insolvent or was rendered
insolvent by the transfer, was engaged or was about to engage in a business for which its assets
constitute unreasonably small capital, or intended to incur or believed that it would incur debts
beyond its ability to pay as they mature. A transfer may also be fraudulent if it was made with
actual intent to hinder, delay or
defraud creditors. If a court found any transfers in connection with the Cryovac transaction to be
fraudulent transfers, we could be required to return the property or its value to the transferor or
could be required to fund liabilities of Grace or its subsidiaries for the benefit of their
creditors, including asbestos claimants. We have reached an agreement in principle and subsequently
signed the Settlement agreement, described below, that is expected to resolve all these claims.
In the Joint Proxy Statement furnished to their respective stockholders in connection with the
Cryovac transaction, both parties to the transaction stated that it was their belief that Grace and
its subsidiaries were adequately capitalized and would be adequately capitalized after the Cryovac
transaction and that none of the transfers contemplated to occur in the Cryovac transaction would
be a fraudulent transfer. They also stated their belief that the Cryovac transaction complied with
other relevant laws. However, if a court applying the relevant legal standards had reached
conclusions adverse to us, these determinations could have had a materially adverse effect on our
consolidated financial condition and results of operations.
On April 2, 2001, Grace and a number of its subsidiaries filed petitions for reorganization
under Chapter 11 of the U.S. Bankruptcy Code in the U.S. Bankruptcy Court in the District of
Delaware. Grace stated that the filing was made in response to a sharply increasing number of
asbestos claims since 1999.
In connection with its Chapter 11 filing, Grace filed an application with the Bankruptcy Court
seeking to stay, among others, all actions brought against the Company and specified subsidiaries
related to alleged asbestos liabilities of Grace and its subsidiaries or alleging fraudulent
transfer claims. The court issued an order dated May 3, 2001, which was modified on January 22,
2002, under which the court stayed all the filed or pending asbestos actions against us and, upon
filing and service on us, all future asbestos actions. No further proceedings involving us can
occur in the actions that have been stayed except upon further order of the Bankruptcy Court.
Committees appointed to represent asbestos claimants in Grace’s bankruptcy case received the
court’s permission to pursue fraudulent transfer and other claims against the Company and its
subsidiary Cryovac, Inc., and against Fresenius, as discussed below. The claims against Fresenius
are based upon a 1996 transaction between Fresenius and W. R. Grace & Co. — Conn. Fresenius is not
affiliated with us. In March 2002, the court ordered that the issues of the solvency of Grace
following the Cryovac transaction and whether Grace received reasonably equivalent value in the
Cryovac transaction would be tried on behalf of all of Grace’s creditors. This proceeding was
brought in the U.S. District Court for the District of Delaware (Adv. No. 02-02210).
In June 2002, the court permitted the U.S. government to intervene as a plaintiff in the
fraudulent transfer proceeding, so that the U.S. government could pursue allegations that
environmental remediation expenses were underestimated or omitted in the solvency analyses of Grace
conducted at the time of the Cryovac transaction. The court also permitted Grace, which asserted
that the Cryovac transaction was not a fraudulent transfer, to intervene in the proceeding. In July
2002, the court issued an interim ruling on the legal standards to be applied in the trial,
holding, among other things, that, subject to specified limitations, post-1998 claims should be
considered in the solvency analysis of Grace. We believe that only claims and liabilities that were
known, or reasonably should have been known, at the time of the 1998 Cryovac transaction should be
considered under the applicable standard.
With the fraudulent transfer trial set to commence on December 9, 2002, on November 27, 2002,
we reached an agreement in principle with the Committees prosecuting the claims against the Company
and Cryovac, Inc., to resolve all current and future asbestos-related claims arising from the
Cryovac transaction. On the same day, the court entered an order confirming that the parties had
reached an amicable resolution of the disputes among the parties and that counsel for us and the
Committees had agreed and bound the parties to the terms of the agreement in principle. As
discussed above, the agreement in principle called for payment of nine million shares of our common
stock and $513 million in cash, plus interest on the cash payment at a 5.5% annual rate starting on
December 21, 2002 and ending on the effective date of an appropriate plan of reorganization in the
Grace bankruptcy, when we are required to make the payment. These shares are subject to customary
anti-dilution provisions that adjust for the effects of stock splits, stock dividends and other
events affecting our common stock, and as a result, the number of shares of our common stock that
we will issue increased to eighteen million shares upon the two-for-one stock split in March 2007.
On December 3, 2002, the Company’s Board of Directors approved the agreement in principle. We
received notice that both of the Committees had approved the agreement in principle as of December
5, 2002. The parties subsequently signed the definitive Settlement agreement as of November 10,
2003 consistent with the terms of the agreement in principle. On November 26, 2003, the parties
jointly presented the definitive Settlement agreement to the U.S. District Court for the District
of Delaware for approval. On Grace’s motion to the U.S. District Court, that court transferred the
motion to approve the Settlement agreement to the Bankruptcy Court for disposition.
On June 27, 2005, the Bankruptcy Court signed an order approving the Settlement agreement.
Although Grace is not a party to the Settlement agreement, under the terms of the order, Grace is
directed to comply with the Settlement agreement subject to limited exceptions. The order also
provides that the Court will retain jurisdiction over any dispute involving the interpretation or
enforcement of the terms and provisions of the Settlement agreement. We expect that the Settlement
agreement will become effective upon Grace’s emergence from bankruptcy pursuant to a plan of
reorganization that is consistent with the terms of the Settlement agreement.
On June 8, 2004, we filed a motion with the U.S. District Court for the District of Delaware,
where the fraudulent transfer trial was pending, requesting that the court vacate the July 2002
interim ruling on the legal standards to be applied relating to the fraudulent transfer claims
against us. We were not challenging the Settlement agreement. The motion was filed as a protective
measure in the event that the Settlement agreement is ultimately not approved or implemented;
however, we still expect that the Settlement agreement will become effective upon Grace’s emergence
from bankruptcy with a plan of reorganization that is consistent with the terms of the Settlement
agreement.
On July 11, 2005, the Bankruptcy Court entered an order closing the proceeding brought in 2002
by the committees appointed to represent asbestos claimants in the Grace bankruptcy proceeding
against us without prejudice to our right to reopen the matter and renew in our sole discretion our
motion to vacate the July 2002 interim ruling on the legal standards to be applied relating to the
fraudulent transfer claims against us.
As a condition to our obligation to make the payments required by the Settlement agreement,
any final plan of reorganization must be consistent with the terms of the Settlement agreement,
including provisions for the trusts and releases referred to below and for an injunction barring
the prosecution of any asbestos-related claims against us. The Settlement agreement provides that,
upon the effective date of the final plan of reorganization and payment of the shares and cash, all
present and future asbestos-related claims against us that arise from alleged asbestos liabilities
of Grace and its affiliates (including former affiliates that became our affiliates through the
Cryovac transaction) will be channeled to and become the responsibility of one or more trusts to be
established under Section 524(g) of the Bankruptcy Code as part of a final plan of reorganization
in the Grace bankruptcy. The Settlement agreement will also resolve all fraudulent transfer claims
against us arising from the Cryovac transaction as well as the Fresenius claims described below.
The Settlement agreement provides that we will receive releases of all those claims upon payment.
Under the agreement, we cannot seek indemnity from Grace for our payments required by the
Settlement agreement. The order approving the Settlement agreement also provides that the stay of
proceedings involving us described above will continue through the effective date of the final plan
of reorganization, after which, upon implementation of the Settlement agreement, we will be
released from the liabilities asserted in those proceedings and their continued prosecution against
us will be enjoined.
In January 2005, Grace filed a proposed plan of reorganization (the “Grace Plan”) with the
Bankruptcy Court. There were a number of objections filed. The Official Committee of Asbestos
Personal Injury Claimants (the “ACC”) and the Asbestos PI Future Claimants’ Representative (the
“FCR”) filed their proposed plan of reorganization (the “Claimants’ Plan”) with the Bankruptcy
Court in November 2007. On April 7, 2008, Grace issued a press release announcing that Grace, the
ACC, the FCR, and the Official Committee of Equity Security Holders (the “Equity Committee”) had
reached an agreement in principle to settle all present and future asbestos-related personal injury
claims against Grace (the “PI Settlement”) and disclosed a term sheet outlining certain terms of
the PI Settlement and for a contemplated plan of reorganization that would incorporate the PI
Settlement (as filed and amended from time to time, the “PI Settlement Plan”).
On September 19, 2008, Grace, the ACC, the FCR, and the Equity Committee filed, as
co-proponents, the PI Settlement Plan and several exhibits and associated documents, including a
disclosure statement (as filed and amended from time to time, the “PI Settlement Disclosure
Statement”), with the Bankruptcy Court. Amended versions of the PI Settlement Plan and the PI
Settlement Disclosure Statement have been filed with the Bankruptcy Court from time to time. The PI
Settlement Plan, which supersedes each of the Grace Plan and the Claimants’ Plan, remains pending
and has not become effective. The committee representing general unsecured creditors and the
Official Committee of Asbestos Property Damage Claimants are not co-proponents of the PI Settlement
Plan. As filed, the PI Settlement Plan would provide for the establishment of two asbestos trusts
under Section 524(g) of the United States Bankruptcy Code to which present and future
asbestos-related claims would be channeled. The PI Settlement Plan also contemplates that the terms
of the Settlement agreement will be incorporated into the PI Settlement Plan and that we will pay
the amount contemplated by the Settlement agreement. On March 9, 2009, the Bankruptcy Court entered
an order approving the PI Settlement Disclosure Statement (the “DS Order”) as containing adequate
information and authorizing Grace to solicit votes to accept or reject the PI Settlement Plan, all
as more fully described in the order. The DS Order did not constitute the Bankruptcy Court’s
confirmation of the PI Settlement Plan, approval of the merits of the PI Settlement Plan, or
endorsement of the PI Settlement Plan. In connection with the plan voting process in the Grace
bankruptcy case, we voted in favor of the PI Settlement Plan that was before the Bankruptcy Court.
We will continue to review any amendments to the PI Settlement Plan on an ongoing basis to verify
compliance with the Settlement agreement.
On June 8, 2009, a senior manager with the voting agent appointed in the Grace bankruptcy case
filed a declaration with the Bankruptcy Court certifying the voting results with respect to the PI
Settlement Plan. This declaration was amended on August 5, 2009 (as amended, the “Voting
Declaration”). According to the Voting Declaration, with respect to each class of claims designated
as impaired by Grace, the PI Settlement Plan was approved by holders of at least two-thirds in
amount and more than one-half in number (or for classes voting for purposes of Section 524(g) of
the Bankruptcy Code, at least 75% in number) of voted claims. The Voting Declaration also discusses
the voting results with respect to holders of general unsecured claims (“GUCs”) against Grace,
whose votes were provisionally solicited and counted subject to a determination by the Bankruptcy
Court of whether GUCs are impaired (and, thus, entitled to vote) or, as Grace contends, unimpaired
(and, thus, not entitled to vote). According to the Voting Declaration, more than one half of
voting holders of GUCs voted to accept the PI Settlement Plan, but the provisional vote did not
obtain the requisite two-thirds dollar amount to be deemed an accepting class in the event that
GUCs are determined to be impaired. To the extent that GUCs are determined to be an impaired
non-accepting class, Grace and the other plan proponents have indicated that they would
nevertheless seek confirmation of the PI Settlement Plan under the “cram down” provisions contained
in Section 1129(b) of the Bankruptcy Code.
On January 31, 2011, the Bankruptcy Court entered a memorandum opinion (as amended, the
“Memorandum Opinion”) overruling certain objections to the PI Settlement Plan and finding, among
other things, that GUCs are not impaired under the PI Settlement Plan. On the same date, the
Bankruptcy Court entered an order regarding confirmation of the PI Settlement Plan (as amended, the
“Confirmation Order”). As entered on January 31, 2011, the Confirmation Order contained recommended
findings of fact and conclusions of law, and recommended that the U.S. District Court for the
District of Delaware (the “District Court”) approve the Confirmation Order, and that the District
Court confirm the PI Settlement Plan and issue a channeling injunction under Section 524(g) of the
Bankruptcy Code. Thereafter, on February 15, 2011, the Bankruptcy Court issued an order clarifying
its Memorandum Opinion and the Confirmation Order (the “Clarifying Order”). Among other things, the
Clarifying Order provided that any references in the Memorandum Opinion and the Confirmation Order
to a recommendation that the District Court confirm the PI Settlement Plan were thereby amended to
make clear that the PI Settlement Plan was confirmed and that the Bankruptcy Court was requesting
that the District Court issue and affirm the Confirmation Order including the injunction under
Section 524(g) of the Bankruptcy Code. On March 11, 2011, the Bankruptcy Court entered an order
granting in part and denying in part a motion to reconsider the Memorandum Opinion filed by BNSF
Railway Company (the “March 11 Order”). Among other things, the March 11 Order amended the
Memorandum Opinion to clarify certain matters relating to objections to the PI Settlement Plan
filed by BNSF.
Although we are optimistic that, if it were to become effective, the PI Settlement Plan would
implement the terms of the Settlement agreement, we can give no assurance that this will be the
case notwithstanding the Bankruptcy Court’s confirmation of the PI Settlement Plan. The terms of
the PI Settlement Plan remain subject to amendment. Moreover, the PI Settlement Plan is subject to
the satisfaction of a number of conditions which are more fully set forth in the PI Settlement Plan
and include, without limitation, the availability of exit financing and the approval of the PI
Settlement Plan by the District Court. Additionally, various parties appealed or have otherwise
challenged the Memorandum Opinion and the Confirmation Order, and the PI Settlement Plan may be
subject to further appeal or challenge before the District Court or other courts. The appealing
parties have designated various issues to be considered on appeal, including, without limitation,
issues relating to releases and injunctions contained in the PI Settlement Plan. The District Court
held hearings on June 28 and June 29, 2011, to hear oral arguments in connection with appeals of
the Memorandum Opinion and the Confirmation Order. The District Court took the matters under
advisement and has not yet ruled on the appeals.
While the Bankruptcy Court has confirmed the PI Settlement Plan and the District Court held
hearings to consider oral argument relating to appeals of the Memorandum Opinion and the
Confirmation Order, additional proceedings may be held before the District Court or other courts to
consider matters related to the PI Settlement Plan, the Memorandum Opinion, and the Confirmation
Order. We do not know whether or when the District Court will affirm the Memorandum Opinion or the
Confirmation Order or approve the PI Settlement Plan, or whether or when a final plan of
reorganization will become effective. Assuming that a final plan of reorganization (whether the PI
Settlement Plan or another plan of reorganization) is confirmed by the Bankruptcy Court, approved
by the District Court, and does become effective, we do not know whether the final plan of
reorganization will be consistent with the terms of the Settlement agreement or if the other
conditions to our obligation to pay the Settlement agreement amount will be met. If these
conditions are not satisfied or not waived by us, we will not be obligated to pay the amount
contemplated by the Settlement agreement. However, if we do not pay the Settlement agreement
amount, we will not be released from the various asbestos related, fraudulent transfer, successor
liability, and indemnification claims made against us and all of these claims would remain pending
and would have to be resolved through other means, such as through agreement on alternative
settlement terms or trials. In that case, we could face liabilities that are significantly
different from our obligations under the Settlement agreement. We cannot estimate at this time what
those differences or their magnitude may be. In the event these liabilities are materially larger
than the current existing obligations, they could have a material adverse effect on our
consolidated financial condition and results of operations. We will continue to review the Grace
bankruptcy proceedings (including appeals and other proceedings relating to the Memorandum Opinion,
the Confirmation Order, or the PI Settlement Plan), as well as any amendments or changes to the
Memorandum Opinion, the Confirmation Order, or the PI Settlement Plan, to verify compliance with
the Settlement agreement.
Fresenius Claims
In January 2002, we filed a declaratory judgment action against Fresenius Medical Care
Holdings, Inc., its parent, Fresenius AG, a German company, and specified affiliates in New York
State court asking the court to resolve a contract dispute between the parties. The Fresenius
parties contended that we were obligated to indemnify them for liabilities that they might incur as
a result of the 1996 Fresenius transaction mentioned above. The Fresenius parties’ contention was
based on their interpretation of the agreements between them and W. R. Grace & Co. — Conn. in
connection with the 1996 Fresenius transaction. In February 2002, the Fresenius parties announced
that they had accrued a charge of $172 million for these potential liabilities, which included
pre-transaction tax liabilities of Grace and
the costs of defense of litigation arising from Grace’s Chapter 11 filing. We believe that we were
not responsible to indemnify the Fresenius parties under the 1996 agreements and filed the action
to proceed to a resolution of the Fresenius parties’ claims. In April 2002, the Fresenius parties
filed a motion to dismiss the action and for entry of declaratory relief in its favor. We opposed
the motion, and in July 2003, the court denied the motion without prejudice in view of the November
27, 2002 agreement in principle referred to above. As noted above, under the Settlement agreement,
we and the Fresenius parties will exchange mutual releases, which will release us from any and all
claims related to the 1996 Fresenius transaction.
Canadian Claims
In November 2004, the Company’s Canadian subsidiary Sealed Air (Canada) Co./Cie learned that
it had been named a defendant in the case of Thundersky v. The Attorney General of Canada, et al.
(File No. CI04-01-39818), pending in the Manitoba Court of Queen’s Bench. Grace and W. R. Grace &
Co. — Conn. are also named as defendants. The plaintiff brought the claim as a putative class
proceeding and seeks recovery for alleged injuries suffered by any Canadian resident, other than in
the course of employment, as a result of Grace’s marketing, selling, processing, manufacturing,
distributing and/or delivering asbestos or asbestos-containing products in Canada prior to the
Cryovac Transaction. A plaintiff filed another proceeding in January 2005 in the Manitoba Court of
The Queen’s Bench naming the Company and specified subsidiaries as defendants. The latter
proceeding, Her Majesty the Queen in Right of the Province of Manitoba v. The Attorney General of
Canada, et al. (File No. CI05-01-41069), seeks the recovery of the cost of insured health services
allegedly provided by the Government of Manitoba to the members of the class of plaintiffs in the
Thundersky proceeding. In October 2005, we learned that six additional putative class proceedings
had been brought in various provincial and federal courts in Canada seeking recovery from the
Company and its subsidiaries Cryovac, Inc. and Sealed Air (Canada) Co./Cie, as well as other
defendants including W. R. Grace & Co. and W. R. Grace & Co. — Conn., for alleged injuries
suffered by any Canadian resident, other than in the course of employment (except with respect to
one of these six claims), as a result of Grace’s marketing, selling, manufacturing, processing,
distributing and/or delivering asbestos or asbestos-containing products in Canada prior to the
Cryovac transaction. Grace and W. R. Grace & Co. — Conn. have agreed to defend, indemnify and hold
harmless the Company and its affiliates in respect of any liability and expense, including legal
fees and costs, in these actions.
In April 2001, Grace Canada, Inc. had obtained an order of the Superior Court of Justice,
Commercial List, Toronto (the “Canadian Court”), recognizing the Chapter 11 actions in the United
States of America involving Grace Canada, Inc.’s U.S. parent corporation and other affiliates of
Grace Canada, Inc., and enjoining all new actions and staying all current proceedings against Grace
Canada, Inc. related to asbestos under the Companies’ Creditors Arrangement Act. That order has
been renewed repeatedly. In November 2005, upon motion by Grace Canada, Inc., the Canadian Court
ordered an extension of the injunction and stay to actions involving asbestos against the Company
and its Canadian affiliate and the Attorney General of Canada, which had the effect of staying all
of the Canadian actions referred to above. The parties finalized a global settlement of these
Canadian actions (except for claims against the Canadian government). That settlement, which has
subsequently been amended (the “Canadian Settlement”), will be entirely funded by Grace. The
Canadian Court issued an Order on December 13, 2009 approving the Canadian Settlement. We do not
have any positive obligations under the Canadian Settlement, but we are a beneficiary of the
release of claims. The release in favor of the Grace parties (including us) will become operative
upon the effective date of a plan of reorganization in Grace’s United States Chapter 11 bankruptcy
proceeding. As filed, the PI Settlement Plan contemplates that the claims released under the
Canadian Settlement will be subject to injunctions under Section 524(g) of the Bankruptcy Code. As
indicated above, the Bankruptcy Court entered the Confirmation Order on January 31, 2011 and the
Clarifying Order on February 15, 2011. The Canadian Court issued an Order on April 8, 2011
recognizing and giving full effect to the Bankruptcy Court’s Confirmation Order in all provinces
and territories of Canada in accordance with the Confirmation Order’s terms. Notwithstanding the
foregoing, the PI Settlement Plan has not become effective, and we can give no assurance that the
PI Settlement Plan (or any other plan of reorganization) will be approved by the District Court or
will become effective. Assuming that a final plan of reorganization (whether the PI Settlement Plan
or another plan of reorganization) is approved by the District Court, and does become effective, if
the final plan of reorganization does not incorporate the terms of the Canadian Settlement or if
the Canadian courts refuse to enforce the final plan of reorganization in the Canadian courts, and
if in addition Grace is unwilling or unable to defend and indemnify the Company and its
subsidiaries in these cases, then we could be required to pay substantial damages, which we cannot
estimate at this time and which could have a material adverse effect on our consolidated financial
position and results of operations.
Additional Matters Related to the Cryovac Transaction
In view of Grace’s Chapter 11 filing, we may receive additional claims asserting that we are
liable for obligations that Grace had agreed to retain in the Cryovac transaction and for which we
may be contingently liable. To date, we are not aware of any material claims having been asserted
or threatened against us.
Final determinations and accountings under the Cryovac transaction agreements with respect to
matters pertaining to the transaction had not been completed at the time of Grace’s Chapter 11
filing in 2001. We have filed claims in the bankruptcy proceeding that reflect the costs and
liabilities that we have incurred or may incur that Grace and its affiliates agreed to retain or
that are subject to indemnification by Grace and its affiliates under the Cryovac transaction
agreements, other than payments to be made under the Settlement agreement. Grace has alleged that
we are responsible for specified amounts under the Cryovac transaction agreements. Subject to the
terms of the Settlement agreement, amounts for which we may be liable to Grace may be used to
offset the liabilities of Grace and its affiliates to us. We intend to seek indemnification by
Grace and its affiliates to the extent permissible under law, the Settlement agreement, and the
Cryovac transaction agreements. Except to the extent of any potential setoff or similar claim, we
expect that our claims will be as an unsecured creditor of Grace. Since portions of our claims
against Grace and its affiliates are contingent or unliquidated, we cannot determine the amount of
our claims, the extent to which these claims may be reduced by setoff, how much of the claims may
be allowed, or the amount of our recovery on these claims, if any, in the bankruptcy proceeding.
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