-----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, PreuZAD6EIPaDKOPUJy9w5EDSBhepaSRU6dsg1CPnzXlqF8TKLMmBmwKMgPtFjO6 quT5OFFZwiF4leoar4QaxQ== 0000919463-00-000005.txt : 20000525 0000919463-00-000005.hdr.sgml : 20000525 ACCESSION NUMBER: 0000919463-00-000005 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 14 CONFORMED PERIOD OF REPORT: 20000509 ITEM INFORMATION: ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 20000524 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BERRY PLASTICS CORP CENTRAL INDEX KEY: 0000919463 STANDARD INDUSTRIAL CLASSIFICATION: PLASTICS PRODUCTS, NEC [3089] IRS NUMBER: 351813706 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 033-75706 FILM NUMBER: 642454 BUSINESS ADDRESS: STREET 1: 101 OAKLEY ST STREET 2: P O BOX 959 CITY: EVANSVILLE STATE: IN ZIP: 47710 BUSINESS PHONE: 8124242904 MAIL ADDRESS: STREET 1: PO BOX 959 CITY: EVANSVILLE STATE: IN ZIP: 47706-0959 FILER: COMPANY DATA: COMPANY CONFORMED NAME: POLY SEAL CORP CENTRAL INDEX KEY: 0000079401 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 520892112 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 000-00000 FILM NUMBER: 642455 BUSINESS ADDRESS: STREET 1: P O BOX 959 CITY: EVANSVILLE STATE: IN ZIP: 47706 BUSINESS PHONE: 8124299278 MAIL ADDRESS: STREET 1: P O BOX 959 CITY: EVANSVILLE STATE: IN ZIP: 47706 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BPC HOLDING CORP CENTRAL INDEX KEY: 0000919465 STANDARD INDUSTRIAL CLASSIFICATION: PLASTICS PRODUCTS, NEC [3089] IRS NUMBER: 351814673 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 033-75706-01 FILM NUMBER: 642456 BUSINESS ADDRESS: STREET 1: 101 OAKLEY ST STREET 2: P O BOX 959 CITY: EVANSVILLE STATE: IN ZIP: 47710 BUSINESS PHONE: 8124242904 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BERRY IOWA CORP CENTRAL INDEX KEY: 0000919467 STANDARD INDUSTRIAL CLASSIFICATION: PLASTICS PRODUCTS, NEC [3089] IRS NUMBER: 421382173 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 033-75706-02 FILM NUMBER: 642457 BUSINESS ADDRESS: STREET 1: 101 OAKLEY ST STREET 2: PO BOX 959 CITY: EVANSVILLE STATE: IN ZIP: 47706-0959 BUSINESS PHONE: 8124242904 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BERRY TRI PLAS CORP CENTRAL INDEX KEY: 0001011391 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 561949250 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 333-64599-01 FILM NUMBER: 642458 BUSINESS ADDRESS: STREET 1: 101 OAKLEY ST CITY: EVANSVILLE STATE: IN ZIP: 47710 MAIL ADDRESS: STREET 1: PO BOX 959 CITY: EVANSVILLE STATE: IN ZIP: 47706-0959 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BERRY STERLING CORP CENTRAL INDEX KEY: 0001075619 STANDARD INDUSTRIAL CLASSIFICATION: PLASTICS PRODUCTS, NEC [3089] IRS NUMBER: 541749681 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 333-64599-11 FILM NUMBER: 642459 BUSINESS ADDRESS: STREET 1: 101 OAKLEY ST STREET 2: P O BOX 959 CITY: EVANSVILLE STATE: IN ZIP: 47710 BUSINESS PHONE: 8124242904 MAIL ADDRESS: STREET 1: PO BOX 959 CITY: EVANSVILLE STATE: IN ZIP: 47706-0959 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PACKERWARE CORP CENTRAL INDEX KEY: 0001075620 STANDARD INDUSTRIAL CLASSIFICATION: PLASTICS PRODUCTS, NEC [3089] IRS NUMBER: 480759852 STATE OF INCORPORATION: KS FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 333-64599-05 FILM NUMBER: 642460 BUSINESS ADDRESS: STREET 1: 101 OAKLEY ST STREET 2: P O BOX 959 CITY: EVANSVILLE STATE: IN ZIP: 47710 BUSINESS PHONE: 8124242904 MAIL ADDRESS: STREET 1: PO BOX 959 CITY: EVANSVILLE STATE: IN ZIP: 47706-0959 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BERRY PLASTICS DESIGN CORP CENTRAL INDEX KEY: 0001075621 STANDARD INDUSTRIAL CLASSIFICATION: PLASTICS PRODUCTS, NEC [3089] IRS NUMBER: 621689708 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 333-64599-07 FILM NUMBER: 642461 BUSINESS ADDRESS: STREET 1: 101 OAKLEY ST STREET 2: P O BOX 959 CITY: EVANSVILLE STATE: IN ZIP: 47710 BUSINESS PHONE: 8124242904 MAIL ADDRESS: STREET 1: PO BOX 959 CITY: EVANSVILLE STATE: IN ZIP: 47706-0959 FILER: COMPANY DATA: COMPANY CONFORMED NAME: VENTURE PACKAGING INC CENTRAL INDEX KEY: 0001075622 STANDARD INDUSTRIAL CLASSIFICATION: PLASTICS PRODUCTS, NEC [3089] IRS NUMBER: 510368479 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 333-64599-08 FILM NUMBER: 642462 BUSINESS ADDRESS: STREET 1: 101 OAKLEY ST STREET 2: P O BOX 959 CITY: EVANSVILLE STATE: IN ZIP: 47710 BUSINESS PHONE: 8124242904 MAIL ADDRESS: STREET 1: PO BOX 959 CITY: EVANSVILLE STATE: IN ZIP: 47706-0959 FILER: COMPANY DATA: COMPANY CONFORMED NAME: VENTURE PACKAGING MIDWEST INC CENTRAL INDEX KEY: 0001075623 STANDARD INDUSTRIAL CLASSIFICATION: PLASTICS PRODUCTS, NEC [3089] STATE OF INCORPORATION: OH FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 333-64599-09 FILM NUMBER: 642463 BUSINESS ADDRESS: STREET 1: 101 OAKLEY ST STREET 2: P O BOX 959 CITY: EVANSVILLE STATE: IN ZIP: 47710 BUSINESS PHONE: 8124242904 MAIL ADDRESS: STREET 1: PO BOX 959 CITY: EVANSVILLE STATE: IN ZIP: 47706-0959 FILER: COMPANY DATA: COMPANY CONFORMED NAME: VENTURE PACKAGING SOUTHEAST INC CENTRAL INDEX KEY: 0001075624 STANDARD INDUSTRIAL CLASSIFICATION: PLASTICS PRODUCTS, NEC [3089] STATE OF INCORPORATION: SC FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 333-64599-03 FILM NUMBER: 642464 BUSINESS ADDRESS: STREET 1: 101 OAKLEY ST STREET 2: P O BOX 959 CITY: EVANSVILLE STATE: IN ZIP: 47710 BUSINESS PHONE: 8124242904 MAIL ADDRESS: STREET 1: PO BOX 959 CITY: EVANSVILLE STATE: IN ZIP: 47706-0959 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NIM HOLDINGS LTD CENTRAL INDEX KEY: 0001075625 STANDARD INDUSTRIAL CLASSIFICATION: PLASTICS PRODUCTS, NEC [3089] FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 333-64599-04 FILM NUMBER: 642465 BUSINESS ADDRESS: STREET 1: 101 OAKLEY ST STREET 2: P O BOX 959 CITY: EVANSVILLE STATE: IN ZIP: 47710 BUSINESS PHONE: 8124242904 MAIL ADDRESS: STREET 1: PO BOX 959 CITY: EVANSVILLE STATE: IN ZIP: 47706-0959 FILER: COMPANY DATA: COMPANY CONFORMED NAME: KNIGHT PLASTICS INC CENTRAL INDEX KEY: 0001075626 STANDARD INDUSTRIAL CLASSIFICATION: PLASTICS PRODUCTS, NEC [3089] IRS NUMBER: 352056610 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 333-64599-13 FILM NUMBER: 642466 BUSINESS ADDRESS: STREET 1: 101 OAKLEY ST STREET 2: P O BOX 959 CITY: EVANSVILLE STATE: IN ZIP: 47710 BUSINESS PHONE: 8124242904 MAIL ADDRESS: STREET 1: PO BOX 959 CITY: EVANSVILLE STATE: IN ZIP: 47706-0959 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AEROCON INC /DE/ CENTRAL INDEX KEY: 0001075629 STANDARD INDUSTRIAL CLASSIFICATION: PLASTICS PRODUCTS, NEC [3089] IRS NUMBER: 351948748 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 333-64599-10 FILM NUMBER: 642467 BUSINESS ADDRESS: STREET 1: 101 OAKLEY ST STREET 2: P O BOX 959 CITY: EVANSVILLE STATE: IN ZIP: 47710 BUSINESS PHONE: 8124242904 MAIL ADDRESS: STREET 1: PO BOX 959 CITY: EVANSVILLE STATE: IN ZIP: 47706-0959 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NORWICH INJECTION MOULDERS LTD CENTRAL INDEX KEY: 0001075630 STANDARD INDUSTRIAL CLASSIFICATION: PLASTICS PRODUCTS, NEC [3089] IRS NUMBER: 351948748 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 333-64599-02 FILM NUMBER: 642468 BUSINESS ADDRESS: STREET 1: 101 OAKLEY ST STREET 2: P O BOX 959 CITY: EVANSVILLE STATE: IN ZIP: 47710 BUSINESS PHONE: 8124242904 MAIL ADDRESS: STREET 1: PO BOX 959 CITY: EVANSVILLE STATE: IN ZIP: 47706-0959 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CARDINAL PACKAGING INC CENTRAL INDEX KEY: 0001093665 STANDARD INDUSTRIAL CLASSIFICATION: PLASTICS PRODUCTS, NEC [3089] IRS NUMBER: 341396561 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 333-85739-14 FILM NUMBER: 642469 BUSINESS ADDRESS: STREET 1: 101 OAKLEY ST STREET 2: P O BOX 959 CITY: EVANSVILLE STATE: IN ZIP: 47710 BUSINESS PHONE: 8124242904 MAIL ADDRESS: STREET 1: PO BOX 959 CITY: EVANSVILLE STATE: IN ZIP: 47706-0959 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CPI HOLDING CORP CENTRAL INDEX KEY: 0001093666 STANDARD INDUSTRIAL CLASSIFICATION: PLASTICS PRODUCTS, NEC [3089] IRS NUMBER: 341820303 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 033-75706-01 FILM NUMBER: 642470 BUSINESS ADDRESS: STREET 1: PO BOX 959 CITY: EVANSVILLE STATE: IN ZIP: 47710 BUSINESS PHONE: 8124242904 MAIL ADDRESS: STREET 1: PO BOX 959 CITY: EVANSVILLE STATE: IN ZIP: 47706-0959 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BERRY PLASTICS ACQUISITION CORP CENTRAL INDEX KEY: 0001094726 STANDARD INDUSTRIAL CLASSIFICATION: PLASTICS PRODUCTS, NEC [3089] STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 333-85739-17 FILM NUMBER: 642471 BUSINESS ADDRESS: STREET 1: 101 OAKLEY ST STREET 2: P O BOX 959 CITY: EVANSVILLE STATE: IN ZIP: 47710 BUSINESS PHONE: 8124242904 MAIL ADDRESS: STREET 1: PO BOX 959 CITY: EVANSVILLE STATE: IN ZIP: 47706-0959 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NORWICH ACQUISITION LTD CENTRAL INDEX KEY: 0001094729 STANDARD INDUSTRIAL CLASSIFICATION: PLASTICS PRODUCTS, NEC [3089] STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 333-85739-16 FILM NUMBER: 642472 BUSINESS ADDRESS: STREET 1: 101 OAKLEY ST STREET 2: P O BOX 959 CITY: EVANSVILLE STATE: IN ZIP: 47710 BUSINESS PHONE: 8124242904 MAIL ADDRESS: STREET 1: PO BOX 959 CITY: EVANSVILLE STATE: IN ZIP: 47706-0959 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BERRY PLASTICS ACQUISITION CORP III CENTRAL INDEX KEY: 0001114652 STANDARD INDUSTRIAL CLASSIFICATION: PLASTICS PRODUCTS, NEC [3089] STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 033-75706-05 FILM NUMBER: 642473 BUSINESS ADDRESS: STREET 1: 101 OAKLEY ST STREET 2: P O BOX 959 CITY: EVANSVILLE STATE: IN ZIP: 47710 BUSINESS PHONE: 8124242904 MAIL ADDRESS: STREET 1: PO BOX 959 CITY: EVANSVILLE STATE: IN ZIP: 47706-0959 8-K 1
SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported) MAY 9, 2000 Commission File Number 33-75706 BERRY PLASTICS CORPORATION (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 35-1813706 (State or other jurisdiction (IRS employer of incorporation or organization) identification number) BPC HOLDING CORPORATION (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 35-1814673 (State or other jurisdiction (IRS employer of incorporation or organization) identification number) BERRY IOWA CORPORATION (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 42-1382173 (State or other jurisdiction (IRS employer of incorporation or organization) identification number) BERRY TRI-PLAS CORPORATION (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 56-1949250 (State or other jurisdiction (IRS employer of incorporation or organization) identification number) BERRY STERLING CORPORATION (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 54-1749681 (State or other jurisdiction (IRS employer of incorporation or organization) identification number) AEROCON, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 35-1948748 (State or other jurisdiction (IRS employer of incorporation or organization) identification number) PACKERWARE CORPORATION (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 48-0759852 (State or other jurisdiction (IRS employer of incorporation or organization) identification number) BERRY PLASTICS DESIGN CORPORATION (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 62-1689708 (State or other jurisdiction (IRS employer of incorporation or organization) identification number) VENTURE PACKAGING, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 51-0368479 (State or other jurisdiction (IRS employer of incorporation or organization) identification number) VENTURE PACKAGING MIDWEST, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 34-1809003 (State or other jurisdiction (IRS employer of incorporation or organization) identification number) VENTURE PACKAGING SOUTHEAST, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 57-1029638 (State or other jurisdiction (IRS employer of incorporation or organization) identification number) NIM HOLDINGS LIMITED (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE N/A (State or other jurisdiction (IRS employer of incorporation or organization) identification number) BERRY PLASTICS U.K. LIMITED (f/k/a Norwich Injection Moulders Limited) (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) ENGLAND AND WALES N/A (State or other jurisdiction (IRS employer of incorporation or organization) identification number) KNIGHT PLASTICS, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 35-2056610 (State or other jurisdiction (IRS employer of incorporation or organization) identification number) CPI HOLDING CORPORATION (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 34-1820303 (State or other jurisdiction (IRS employer of incorporation or organization) identification number) CARDINAL PACKAGING, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) OHIO 34-1396561 (State or other jurisdiction (IRS employer of incorporation or organization) identification number) NORWICH ACQUISITION LIMITED (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) ENGLAND AND WALES N/A (State or other jurisdiction (IRS employer of incorporation or organization) identification number) POLY-SEAL CORPORATION (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 52-0892112 (State or other jurisdiction (IRS employer of incorporation or organization) identification number) BERRY PLASTICS ACQUISITION CORPORATION II (f/k/a Berry Plastics Acquisition Corporation) (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE N/A (State or other jurisdiction (IRS employer of incorporation or organization) identification number) BERRY PLASTICS ACQUISITION CORPORATION III (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE N/A (State or other jurisdiction (IRS employer of incorporation or organization) identification number)
101 OAKLEY STREET EVANSVILLE, INDIANA 47710 (Address of principal executive offices including Zip Code) (812) 424-2904 (Registrant's telephone number, including area code)
ITEM 2.ACQUISITION OR DISPOSITION OF ASSETS. On May 9, 2000, Berry Plastics Corporation (the "Registrant"), a Delaware corporation and wholly-owned subsidiary of BPC Holding Corporation (the "Holding"), acquired (the "Acquisition") all of the outstanding capital stock of Poly-Seal Corporation ("Poly-Seal") through a merger of Berry Plastics Acquisition Corporation ("BPAC"), a wholly-owned subsidiary of Berry Plastics, with and into Poly- Seal. Poly-Seal was the surviving corporation. Pursuant to the terms of the Agreement and Plan of Merger, dated as of May 5, 2000 (the "Agreement"), among the Registrant, BPAC, Poly-Seal, and certain shareholders of Poly-Seal, the aggregate consideration paid, including amounts required to pay indebtedness, was $57.3 million, subject to adjustment. A copy of the Agreement is filed as Exhibit 2.1 hereto, and such document is hereby incorporated by reference herein. Pursuant to the Escrow Agreement dated as of May 9, 2000 (the "Escrow Agreement"), among the Registrant, Poly- Seal, Michael C. Larned, Michael D. deMilt, certain shareholders of Poly-Seal and Old National Trust Company, $1.2 million in cash is being held in escrow for an eighteen-month period to satisfy certain indemnification obligations. At the end of the eighteen-month period, the remaining balance, if any, will be paid to the shareholders of Poly-Seal. A copy of the Escrow Agreement is filed as Exhibit 99.1 hereto, and such document is hereby incorporated by reference herein. In order to finance a portion of the consideration delivered in connection with the Acquisition, Holding issued, pursuant to a Preferred Stock and Warrant Purchase Agreement dated as of May 9, 2000 (the "Preferred Agreement") by and among Holding, Chase Venture Capital Associates, LLC ("CVCA") and The Northwestern Mutual Life Insurance Company ("Northwestern"), 1,000,000 shares of Series A-1 Preferred Stock in a private placement (the "Preferred Placement") for an aggregate price of $25 million. In connection with the Preferred Placement, Holding issued warrants to purchase 25,997 shares of its Series B Non-Voting Common Stock. Holding also extended the expiration period of currently outstanding warrants to purchase Series B Non-Voting Common Stock and Series B Voting Common Stock held by CVCA and Northwestern to May 9, 2006. A copy of the Series A-1 Preferred Agreement is filed as Exhibit 4.1 hereto, and such document is hereby incorporated by reference herein. The Registrant financed the remaining portion of the consideration delivered in connection with the Acquisition through a new term loan under its credit facility with Banc of America N.A., which was amended and restated. Further details of the Acquisition are provided in a press release issued by the Registrant, which is filed as Exhibit 99.2 hereto, and such document is hereby incorporated by reference herein. ITEM 5. OTHER EVENTS. The Registrant and its subsidiaries supplemented the Indentures dated July 6, 1999, August 24, 1998 and April 21, 1994 (collectively, the "Indentures") through a First Supplemental Indenture, a Third Supplemental Indenture and a Ninth Supplemental Indenture, respectively (collectively the "Supplemental Indentures"). Under the Supplemental Indentures, Poly-Seal and Berry Plastics Acquisition Corporation III, a wholly owned subsidiary of the Registrant, entered into guarantees under the Indentures. The Supplemental Indentures are filed as Exhibits 4.8, 4.9 and 4.10 hereto, and such documents are hereby incorporated by reference herein. ITEM 7.FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS. (a)and (b) The financial statements and pro forma financial information that are required to be included herein are not so included, and such statements and information shall be filed not later than August 2, 2000. (c) Exhibits
EXHIBIT NO. REFERENCE 2.1 Merger Agreement dated as of May 5, 2000 among the Registrant, BPAC, Filed herewith Poly-Seal, and certain shareholders of Poly-Seal 4.1 Series A-1 Preferred Stock Purchase Agreement dated as of May 9, 2000 Filed herewith among Holding, CVCA and Northwestern 4.2 Warrant No. CBNV-1 to purchase 15,599 shares of Series B Non-Voting Filed herewith Common Stock issued to CVCA 4.3 Warrant No. CBNV-2 to purchase 10,398 shares of Series B Non-Voting Filed herewith Common Stock issued to Northwestern 4.7 Amended and Restated Warrant No. 5 to purchase 5,623 shares of Class B Filed herewith Voting Common Stock issued to CVCA 4.6 Amended and Restated Warrant No. 6 to purchase 17837 shares of Class B Filed herewith Non-Voting Common Stock issued to CVCA 4.5 Amended and Restated Warrant No. 7 to purchase 3,749 shares of Series Filed herewith B Voting Common Stock issued to Northwestern 4.4 Amended and Restated Warrant No. 8 to purchase 11,891 shares of Series Filed herewith B Non-Voting Common Stock issued to Northwestern 4.8 First Supplemental Indenture to the Indenture dated July 6, 1999, as Filed herewith supplemented, among Holding, the Registrant, the subsidiaries of the Registrant, and United States Trust Company of New York, as trustee 4.9 Third Supplemental Indenture to the Indenture dated August 24, 1998, Filed herewith as supplemented, among Holding, the Registrant, the subsidiaries of the Registrant, and United States Trust Company of New York, as trustee 4.10 Ninth Supplemental Indenture to the Indenture dated April 21, 1994, as Filed herewith supplemented, among Holding, the Registrant, the subsidiaries of the Registrant, and United States Trust Company of New York, as trustee 99.1 Escrow Agreement dated as of May 9, 2000 among the Registrant, Poly- Filed herewith Seal, Michael Larned, Michael D. deMilt, certain Shareholders of Poly-Seal and Old National Trust Company 99.2 Press release Filed herewith
SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. BERRY PLASTICS CORPORATION BPC HOLDING CORPORATION BERRY IOWA CORPORATION BERRY TRI-PLAS CORPORATION BERRY STERLING CORPORATION AEROCON, INC. PACKERWARE CORPORATION BERRY PLASTICS DESIGN COROPRATION VENTURE PACKAGING, INC. VENTURE PACKAGING MIDWEST, INC. VENTURE PACKAGING SOUTHEAST, INC. KNIGHT PLASTICS, INC. CPI HOLDING CORPORATION CARDINAL PACKAGING, INC. POLY-SEAL CORPORATION BERRY PLASTICS ACQUISITION CORPORATION II BERRY PLASTICS ACQUISITION CORPORATION III May __, 2000 By:/S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary of the entities listed above (Principal Financial and Accounting Officer) NIM HOLDING LIMITED BERRY PLASTICS U.K. LIMITED NORWICH ACQUISITION LIMITED By:/S/ JAMES M. KRATOCHVIL James M. Kratochvil Director of the entities listed above (Principal Financial and Accounting Officer)
EXHIBIT INDEX EXHIBIT NO. DESCRIPTION 2.1 Merger Agreement dated as of May 5, 2000 among the Registrant, BPAC, Poly-Seal, and certain shareholders of Poly-Seal 4.1 Series A-1 Preferred Stock Purchase Agreement dated as of May 9, 2000 among Holding, CVCA and Northwestern 4.2 Warrant No. CBNV-1 to purchase 15,599 shares of Series B Non-Voting Common Stock issued to CVCA 4.3 Warrant No. CBNV-2 to purchase 10,398 shares of Series B Non-Voting Common Stock issued to Northwestern 4.4 Amended and Restated Warrant No. 5 to purchase 5,623 shares of Class B Voting Common Stock issued to CVCA 4.5 Amended and Restated Warrant No. 6 to purchase 17837 shares of Class B Non-Voting Common Stock issued to CVCA 4.6 Amended and Restated Warrant No. 7 to purchase 3,749 shares of Series B Voting Common Stock issued to Northwestern 4.7 Amended and Restated Warrant No. 8 to purchase 11,891 shares of Series B Non-Voting Common Stock issued to Northwestern 4.8 First Supplemental Indenture to the Indenture dated July 6, 1999, as supplemented, among Holding, the Registrant, the subsidiaries of the Registrant, and United States Trust Company of New York, as trustee 4.9 Third Supplemental Indenture to the Indenture dated August 24, 1998, as supplemented, among Holding, the Registrant, the subsidiaries of the Registrant, and United States Trust Company of New York, as trustee 4.10 Ninth Supplemental Indenture to the Indenture dated April 21, 1994, as supplemented, among Holding, the Registrant, the subsidiaries of the Registrant, and United States Trust Company of New York, as trustee 99.1 Escrow Agreement dated as of May 9, 2000 among the Registrant, Poly-Seal, Michael Larned, Michael D. deMilt, certain Shareholders of Poly-Seal and Old National Trust Company 99.2 Press Release
EX-2.1 2 _____________________________________ AGREEMENT AND PLAN OF MERGER among BERRY PLASTICS ACQUISITION CORPORATION, BERRY PLASTICS CORPORATION, POLY-SEAL CORPORATION and THE SHAREHOLDERS OF POLY-SEAL CORPORATION NAMED HEREIN Dated as of May 5, 2000 _____________________________________ TABLE OF CONTENTS PAGE AGREEMENT AND PLAN OF MERGER .......................................... 1 PRELIMINARY STATEMENTS................................................. 1 ARTICLE I THE MERGER; EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS.............................. 1 Section 1.1. The Merger........................................... 1 Section 1.2. Closing.............................................. 2 Section 1.3. Effect of the Merger................................. 2 Section 1.4. Certificate of Incorporation and Bylaws of the Surviving Corporation............................... 2 Section 1.5. Directors and Officers of the Surviving Corporation......................................... 2 Section 1.6. Effect on Capital Stock.............................. 2 Section 1.7. Certain Defined Terms................................ 4 Section 1.8. Determination of Adjustments......................... 7 Section 1.9. Payments.............................................11 Section 1.10. Escrows.............................................13 Section 1.11. Payment of Indebtedness, Capital Lease Obligations and Transaction Expense Amounts.........14 Section 1.12. No Duplication......................................14 ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SHAREHOLDER PARTIES.......................................15 Section 2.1. Due Execution and Delivery, Etc......................15 Section 2.2. No Violation.........................................16 Section 2.3. Capital Stock........................................16 Section 2.4. Organization of the Company..........................17 Section 2.5. Consents and Approvals...............................18 Section 2.6. Financial Statements.................................18 Section 2.7. Absence of Certain Changes...........................18 Section 2.8. Absence of Undisclosed Liabilities...................19 Section 2.9. Litigation...........................................19 Section 2.10. Compliance with Applicable Law, Permits.............19 Section 2.11. Environmental Matters...............................20 Section 2.12. Intellectual Property...............................21 Section 2.13. Employee Benefit Plans..............................21 Section 2.14. Employees and Labor Relations.......................23 Section 2.15. Taxes...............................................24 Section 1.16. Material Contracts..................................25 Section 2.17. Suppliers, Distributors and Customers...............26 Section 2.18. Assets Necessary to Business........................26 Section 2.19. Tangible Personal Property..........................26 Section 2.20. Real Property.......................................27 i Section 2.21. Insurance...........................................28 Section 2.22. Related Party Transactions..........................28 Section 2.23. Accounts and Notes Receivable.......................28 Section 2.24. Disclosure..........................................29 Section 2.25. Brokers.............................................29 ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE PARENT and MERGER SUB.......................................................29 Section 3.1. Organization and Authority of Parent and Merger Sub.................................................29 Section 3.2. No Violation.........................................30 Section 3.3. Consents and Approvals...............................30 Section 3.4. Investment...........................................30 Section 3.5. Legal Proceedings....................................30 Section 3.6. Solvency, Etc........................................30 Section 3.7. Brokers..............................................30 ARTICLE IV COVENANTS...................................................31 Section 4.1. Conduct of the Business..............................31 Section 4.2. Access to Information by Parent......................33 Section 4.3. Reasonable Efforts...................................33 Section 4.4. Stock Options........................................34 Section 4.5. Collective Bargaining Agreement......................34 Section 4.6. Access to Records by Shareholders....................34 Section 4.7. Certain Limitations on Representations and Warranties..........................................35 Section 4.8. Supplemental Schedules...............................36 Section 4.9. Guarantee by Parent..................................36 Section 4.10. Further Assurances..................................36 Section 4.11. Certain Tax Matters.................................36 Section 4.12. Termination of Affiliate Transactions...............40 Section 4.13. Notice of Prospective Breach........................40 Section 4.14. Release.............................................41 Section 4.15. Disclosure of Information...........................41 Section 4.16. Negotiation with Others; Disposition and Voting of Securities......................................41 Section 4.17. Use of Name.........................................43 ARTICLE V CONDITIONS...................................................43 Section 5.1. Conditions to Each Party's Obligations...............43 Section 5.2. Conditions to Obligations of the Parent and Merger Sub.................................................43 Section 5.3. Conditions to Obligations of the Shareholder Parties and the Company.............................45 Section 5.4. Waiver...............................................46 ARTICLE VI TERMINATION AND AMENDMENT...................................46 Section 6.1. Termination..........................................46 Section 6.2. Effect of Termination................................47 Section 6.3. Amendment............................................48 ii ARTICLE VII SURVIVAL; INDEMNIFICATION..................................48 Section 7.1. Survival Periods.....................................48 Section 7.2. Indemnification......................................48 Section 7.3. Certain Limitations..................................49 Section 7.4. Claims...............................................51 Section 7.5. Exclusive Remedy.....................................52 Section 7.6. Adjustments..........................................52 Section 7.7. No Contribution from the Corporation or the Surviving Corporation...............................52 Section 7.8. Tax Claims...........................................52 ARTICLE VIII MISCELLANEOUS.............................................54 Section 8.1. Shareholder Party Representatives....................54 Section 8.2. Notices..............................................54 Section 8.3. Headings.............................................56 Section 8.4. Counterparts.........................................56 Section 8.5. Entire Agreement; Assignment.........................56 Section 8.6. Governing Law........................................56 Section 8.7. Specific Performance.................................57 Section 8.8. Press Releases.......................................57 Section 8.9. Binding Nature; No Third Party Beneficiaries.........57 Section 8.10. Severability........................................57 Section 8.11. Certain Interpretive Matters and Definitions........57 Section 8.12. Payment of Expenses.................................58 Section 8.13. Remedies............................................58 Section 8.14. Independence of Covenants and Representations and Warranties.........................................58 iii SCHEDULES AND EXHIBITS Schedule 1.7(ix) Closing CapEx Amount Schedule 1.7(xi) Closing Working Capital Amount Schedule 1.7 (xiv) Estimated Adjustment Amount Schedule 1.7(xvii) Estimated Tax Amount Schedule 1.8(a) Pro Forma Net Working Capital Calculation Schedule 2.2(a) No Violation -- Shareholder Parties Schedule 2.2(b) No Violation -- Company Schedule 2.3(a) Company Common Stock Schedule 2.3(b) Stock Option Plan Schedule 2.3(c) Title to Shares Schedule 2.4(b) Subsidiaries and other Equity Interests Schedule 2.6 Financial Statements Schedule 2.7 Absence of Certain Changes Schedule 2.8 Absence of Undisclosed Liabilities Schedule 2.9 Litigation Schedule 2.10 Compliance with Applicable Law Schedule 2.11 Environmental Matters Schedule 2.12 Intellectual Property Schedule 2.13(a),(d),(e)&(f) Employee Benefit Plans Schedule 2.15(a),(b),(c)&(e) Taxes Schedule 2.16 Material Contracts Schedule 2.17 Suppliers, Distributors and Customers Schedule 2.19 Tangible Personal Property Schedule 2.20 Real Property Schedule 2.21 Insurance Schedule 2.22(b) Related Party Transactions Schedule 2.23 Accounts and Notes Receivable Schedule 4.1 Conduct of Business Schedule 4.12 Termination of Affiliate Transactions Schedule 8.1 Principal Shareholders Schedule 8.11 Certain Interpretive Matters and Definitions Exhibit A Form of Escrow Agreement Exhibit B Form of Opinion of Counsel to Shareholder Parties and Company Exhibit C Form of Opinion of Counsel to Parent and Merger Sub iv TABLE OF DEFINED TERMS TERM SECTION Actual Unpaid Amount............................... 4.11(a)(iii) Accountant's Determination......................... 1.8(c) Accounting Firm.................................... 1.8(c) Actual CapEx Amount................................ 1.7(i) Actual Tax Liability............................... 4.11(d) Additional Escrow Amount............................1.7(ii) Affiliate.......................................... 2.22(a) Aggregate Merger Consideration..................... 1.7(iii) Agreement.......................................... Introductory Paragraph Applicable Percentage.............................. 1.7(iv) Audited Financial Statements....................... 2.6 Best Knowledge of the Company...................... 8.11(a) Business........................................... Preliminary Statements Business Day....................................... 1.7(v) Buyer Group........................................ 7.2(a) CapEx Overpayment Amount........................... 1.8(e)(i) CapEx Underpayment Amount.......................... 1.8(e)(ii) CapEx Target....................................... 1.7(vi) Capital Lease Obligations.......................... 1.7(vii) Capital Lease Obligations Amount................... 1.7(viii) Certificate of Merger.............................. 1.2 Closing............................................ 1.2 Closing Date....................................... 1.2 Closing Date Payment Amount........................ 1.7(x) Closing Date Balance Sheet......................... 1.8(a) Closing Working Capital Amount..................... 1.7(xi) Code............................................... 2.13 Company............................................ Introductory Paragraph Company Common Stock............................... 1.6(a)(ii) Compensation Deductions............................ 4.11(a)(iv) Confidentiality Agreement.......................... 4.2(a) Consulting and Non-Competition Agreement........... 5.2(q) Covered Refund..................................... 4.11(b) Credited Prepayments............................... 4.11(b) deMilt Receivable.................................. 2.22(a) Damages............................................ 7.2(a) December Balance Sheet............................. 2.6 DGCL............................................... 1.1 Dissenting Shareholder............................. 1.6(c) Effective Time..................................... 1.2 Employee Plans..................................... 2.13(a) Environmental Law.................................. 2.11(b) v ERISA.............................................. 2.13(a) ERISA Affiliate.................................... 2.13(d)(iii) Escrow Agent....................................... 1.10(a) Escrow Adjustment Amount Account................... 1.10(c) Escrow Agreement................................... 1.10(a) Escrow Amount...................................... 1.10(a) Escrow Expense Account............................. 1.10(d) Escrow Expense Amount.............................. 1.7(xii) Escrow Holdback Account............................ 1.10(a) Escrow Holdback Amount............................. 1.7(xiii) Escrow Holdback Fund............................... 1.10(a) Escrow Tax Account................................. 1.10(e) Estimated Adjustment Amount........................ 1.7(xiv) Estimated CapEx Overpayment Amount................. 1.7(xv) Estimated CapEx Underpayment Amount................ 1.7(xvi) Estimated Tax Amount............................... 1.7(xvii) Estimated Working Capital Overpayment Amount....... 1.7(xviii) Estimated Working Capital Underpayment Amount...... 1.7(xix) Exclusive Period................................... 4.16(a) Fair Market Value Per Share........................ 4.4 Final Separate Return Year......................... 4.11(a)(i) Final Separate Return Year Tax Returns............. 4.11(a)(ii) Financial Statements............................... 2.6 Financing Documents................................ 3.6 Franchise Taxes.................................... 1.7(xx) GAAP............................................... 2.6 Governmental Entity................................ 2.4(a) Hazardous Substance................................ 2.11(c) Herdrich Receivable................................ 2.22(a) HSR Act............................................ 2.5(a) Income Taxes....................................... 1.7(xxi) Indebtedness....................................... 1.7(xxii) Indemnified Party.................................. 7.4(a) Indemnifying Party................................. 7.4(a) Intellectual Property.............................. 2.12(b) Knowledge of the Company........................... 8.11(a) Law................................................ 2.4(a) Leased Real Property............................... 2.20 Liability.......................................... 2.8 Liens.............................................. 2.3(c) Material Adverse Effect............................ 2.4(a) Merger............................................. 1.1 Merger Sub......................................... Introductory Paragraph Merger Sub Common Stock............................ 1.6(i) Names.............................................. 4.17 Net Working Capital................................ 1.7(xxiii) vi Nonresponsive Shareholder.......................... 4.11(a)(iv) Notice of Disagreement............................. 1.8(b) Owned Real Property................................ 2.20 Outstanding Company Common Stock................... 1.6(a)(ii) Overpayment Amount................................. 1.8(d)(ii) Parent............................................. Introductory Paragraph Parent Adjustment Amounts.......................... 1.8(f) Permitted Liens.................................... 2.19 Per Share Merger Consideration..................... 1.6(a)(ii) Post-Closing 1999 Returns.......................... 4.11(d) Potential Transaction.............................. 4.16(a) Purchase Price..................................... 1.2 Rate............................................... 1.9(c) Real Property...................................... 2.20 Refund............................................. 4.11(b) Related Documents.................................. 1.7(xxiv) Schroders.......................................... 2.25 Shareholder Adjustment Amounts..................... 1.8(g) Shareholder Parties................................ Introductory Paragraph Shareholder Payments Escrow Account................ 1.10(b) Shareholder Party Representatives.................. Introductory Paragraph Statement.......................................... 1.8(a) Stock Option....................................... 4.4 Stock Option Plan.................................. 2.3(b) Straddle Year...................................... 4.11(a)(ii) Straddle Year Tax Returns.......................... 4.11(a)(ii) Subsidiary......................................... 2.4(b) Survival Date...................................... 7.1 Surviving Corporation.............................. 1.2 Surviving Corporation Common Stock................. 1.6(a)(i) Tax................................................ 2.15(g) Tax Claim.......................................... 7.8 Tax Return......................................... 2.15(g) Third Party Claim.................................. 7.4(e) Transaction Expense Amounts........................ 1.7(xxv) Underpayment Amount................................ 1.8(d)(i) Unused Expense Amount.............................. 1.7(xxvi) Working Capital Target............................. 1.7(xxvii) vii AGREEMENT AND PLAN OF MERGER AGREEMENT AND PLAN OF MERGER (this "AGREEMENT"), dated as of May 5, 2000, among Berry Plastics Corporation, a Delaware corporation (the "PARENT") , Berry Plastics Acquisition Corporation, a Delaware corporation ("MERGER SUB"), Poly-Seal Corporation, a Delaware corporation (the "COMPANY"), the individuals and trusts who are shareholders of the Company listed in the signature pages to this Agreement (such shareholders being collectively referred to as the "SHAREHOLDER PARTIES"), and Michael C. Larned and Michael D. deMilt, as representatives of the Shareholder Parties (the "SHAREHOLDER PARTY REPRESENTATIVES"). PRELIMINARY STATEMENTS A. The Company is engaged in the business of manufacturing and selling plastic caps and closures and related activities (the "BUSINESS"). B. The Board of Directors of each of the Parent and the Company have determined that the acquisition of the Company, upon the terms and subject to the conditions set forth herein, pursuant to a merger whereby Merger Sub will be merged with and into the Company, is in the best interests of their respective companies and shareholders. C. Merger Sub is a wholly-owned subsidiary of Parent created solely for the purpose of effecting the transactions contemplated hereby and which will conduct no other activity and will be merged with and into the Company. D. The parties hereto desire to make certain representations, warranties, covenants and agreements in connection with this Agreement and the transactions contemplated hereby. E. The Shareholder Party Representatives are to act as representatives of the Shareholder Parties for certain purposes hereunder. NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth below, the parties agree as following: ARTICLE I THE MERGER; EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS Section 1.1 The Merger. Subject to the terms and provisions of this Agreement and in accordance with Subchapter IX of the Delaware General Corporation Law (the "DGCL"), at the Effective Time (as defined in section 1.2), Merger Sub shall be merged with and into the Company (the "MERGER"). As a result of the Merger, the separate corporate existence of Merger Sub shall cease and the Company shall continue as the surviving corporation (the "SURVIVING CORPORATION"). Section 1.2 Closing. The closing of the Merger (the "CLOSING") will take place at 10:00 a.m. at the offices of O'Sullivan, Graev and Karabell LLP, 30 Rockefeller Plaza, New York, New York, 10112 (or at such other place or time as the parties mutually agree in writing) on a date to be specified by Parent and the Company, which shall be no later than the third Business Day after satisfaction or, if permissible, waiver of the conditions set forth in Article V (the time and date of the Closing being referred to herein as the "CLOSING DATE"), unless another date is agreed to by Parent and the Company. On the Closing Date, a Certificate of Merger with respect to the Merger in such form as is required by the DGCL (the "CERTIFICATE OF MERGER") shall be duly prepared, executed and delivered to the Secretary of State of the State of Delaware for filing, as provided in the DGCL. The Merger shall become effective at the later of the time of filing of the Certificate of Merger or at such time as is agreed upon by the parties and specified in the Certificate of Merger (the "EFFECTIVE TIME"). Section 1.3. Effect of the Merger. Upon becoming effective, the Merger shall have the effects set forth in the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all properties, rights, privileges, powers and franchises of Merger Sub and the Company shall vest in the Surviving Corporation, and all debts, liabilities and duties of Merger Sub and the Company shall become the debts, liabilities and duties of the Surviving Corporation. Section 1.4. Certificate of Incorporation and Bylaws of the Surviving Corporation. From and after the Effective Time, and until changed or amended as provided by law, the Certificate of Incorporation of the Company and Bylaws of Merger Sub as in effect immediately prior to the Effective Time shall be the Certificate of Incorporation and Bylaws, respectively, of the Surviving Corporation. Section 1.5. Directors and Officers of the Surviving Corporation. The directors of Merger Sub immediately prior to the Effective Time shall be the initial directors of the Surviving Corporation, each to hold office in accordance with the Certificate of Incorporation and Bylaws of the Surviving Corporation. The officers of Merger Sub immediately prior to the Effective Time shall be the initial officers of the Surviving Corporation, each to hold office in accordance with the Certificate of Incorporation and Bylaws of the Surviving Corporation. Section 1.6. Effect on Capital Stock. (a) As of the Effective Time, by virtue of the Merger and without any action on the part of any holder thereof: (i)Each share of Common Stock, par value $.01 per share, of Merger Sub ("MERGER SUB COMMON STOCK") issued and outstanding immediately prior to the Effective Time shall be converted into and become one fully paid and non-assessable share of Common Stock, par value $.01 per share, of the Surviving Corporation ("SURVIVING CORPORATION COMMON STOCK"), so that, after the Effective Time, the Parent will be the holder of all of the issued and outstanding shares of 2 Surviving Corporation Common Stock. From and after the Effective Time, each outstanding certificate representing Merger Sub Common Stock shall be deemed for all purposes to evidence ownership of and to represent the same number of shares of Surviving Corporation Common Stock. After the Effective Time, a certificate or certificates evidencing shares of Surviving Corporation Common Stock shall be issued by the Surviving Corporation in exchange for the certificate or certificates which formerly represented all of the issued and outstanding shares of Merger Sub Common Stock, which shall then be cancelled. (ii)Each share of Common Stock, par value $0.005 per share, of the Company ("COMPANY COMMON STOCK") issued and outstanding immediately prior to the Effective Time ("OUTSTANDING COMPANY COMMON STOCK") (except Outstanding Company Common Stock held by Dissenting Shareholders as defined in Section 1.6(c), if any, or held by the Company as set forth in Section 1.6(a)(iii)) shall be converted into and become the right to receive, from and after the Effective Time in accordance with the terms and provisions of this Agreement and the Escrow Agreement (as defined below), the Aggregate Merger Consideration divided by the total number of shares of Outstanding Company Common Stock, and shall otherwise cease to be outstanding, shall be cancelled and retired and cease to exist. From and after the Effective Time, the holders of certificates representing Outstanding Company Common Stock (each a "SHAREHOLDER" and collectively, the "SHAREHOLDERS") shall cease to have any rights as stockholders of the Company, except for the right to receive the Aggregate Merger Consideration in respect of such Outstanding Company Common Stock at the times and in the manner provided in this Agreement and the Escrow Agreement and except for such rights, if any, as they may have pursuant to the DGCL. (iii)Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time and owned directly or indirectly by the Company (whether as treasury stock or otherwise) shall, by virtue of the Merger and without any action on the part of the holder thereof, be canceled and no consideration shall be delivered in exchange therefor. (iv)Each authorized but unissued share of Company Common Stock immediately prior to the Effective Time shall be canceled. (b)__As of the Effective Time, by virtue of the Merger and without any action on the part of any party, the stock transfer books of the Company shall be closed and no transfer of Company Common Stock shall thereafter be made. (c)__Notwithstanding anything in this Agreement to the contrary, to the extent required by the DGCL, any Outstanding Company Common Stock held by a person who validly asserts and perfects appraisal rights pursuant to Section 262 of the DGCL (a "DISSENTING SHAREHOLDER") shall not be converted as described in Section 1.6(a)(ii), but shall be converted into the right to receive such consideration as may be determined to be due to such Dissenting Shareholder pursuant to Section 262 of the 3 DGCL. If, after the Effective Time, such Dissenting Shareholder withdraws his demand or fails to perfect or otherwise loses his rights as a Dissenting Shareholder to payment of fair value, in any case pursuant to the DGCL, each of the shares of Outstanding Company Common Stock of such Dissenting Shareholder shall be deemed to be converted as of the Effective Time into the right to receive those amounts set forth in Section 1.6(a)(ii). Section 1.7. Certain Defined Terms. As used herein, the following terms shall have the following respective meanings: (i)"ACTUAL CAPEX AMOUNT" means the aggregate amount of capital expenditures made or accrued for during the period from January 1, 1999 through the Closing Date (excluding any capital expenditures made by the Company not set forth on the latest capital expenditure budget delivered on or prior to the date hereof to the Parent) and set forth on the Statement; (ii)"ADDITIONAL ESCROW AMOUNT" means the Escrow Holdback Amount MINUS the amount, if any, required to be paid out to satisfy Damages with respect to which payments may be made from the Escrow Holdback Account under the Escrow Agreement; (iii)"AGGREGATE MERGER CONSIDERATION" means the net amount of (i) the Closing Date Payment Amount, PLUS (ii) the Underpayment Amount, if any, PLUS (iii) the CapEx Underpayment Amount, if any, PLUS (iv) the Additional Escrow Amount, if any, PLUS (v) any amounts to which Shareholders may be entitled under Sections 4.11(a)(iii), 4.11(a)(iv), 4.11(b) and 4.11(d), PLUS (vi) the Unused Expense Amount, if any, LESS (vii) the Overpayment Amount, if any, and LESS (viii) the CapEx Overpayment Amount, if any; (iv)"APPLICABLE PERCENTAGE" in respect of any Shareholder or Shareholders means the fraction, expressed as a percentage, of which the numerator is the total number of shares of Outstanding Company Common Stock owned of record by such Shareholder or Shareholders and the denominator is the total number of shares of Outstanding Company Common Stock of all Shareholders; (v)"BUSINESS DAY" means any day other than a Saturday or a Sunday or a day on which banking institutions in the State of New York are authorized or obligated by law or executive order to be closed; (vi)"CAPEX TARGET" means the sum of (1) $5,175,000 plus (2) $8,300 per day during the period between January 1, 2000 and the Closing Date; (vii)"CAPITAL LEASE OBLIGATIONS" means the obligations of the Company, on a consolidated basis, to pay rent or other amounts under any lease of (or other arrangement covering the right to use) real or personal property, which obligations are required to be classified and accounted for as capital leases on a 4 consolidated balance sheet of the Company as of such date computed in accordance with GAAP, consistently applied with the Financial Statements; (viii)"CAPITAL LEASE OBLIGATIONS AMOUNT" means the aggregate amount required to satisfy and pay off all liabilities and obligations (including any prepayment penalties) arising under any Capital Lease Obligations to the extent not satisfied and paid off prior to the Closing; (ix)"CLOSING CAPEX AMOUNT" means the aggregate amount of capital expenditures actually made or accrued for by the Company during the period between January 1, 1999 and the Closing Date estimated in good faith by the Company as set forth in Schedule 1.7(ix) hereto or, if the Closing Date shall not occur on or prior to May 9, 2000, as set forth in a revised Schedule to be delivered by the Shareholder Party Representatives to the Parent at least one Business Day prior to the Closing Date; (x)"CLOSING DATE PAYMENT AMOUNT" means the net amount equal to (i) $57,312,230.84, (ii) MINUS the aggregate amount of Indebtedness of the Company to the extent not satisfied and paid off prior to the Closing, (iii) MINUS the Capital Lease Obligations Amount, (iv) MINUS the Estimated Tax Amount, (v) MINUS the Escrow Holdback Amount, (vi) MINUS the Estimated CapEx Overpayment Amount, if any, (vii) MINUS the Estimated Working Capital Overpayment Amount, if any, (viii) MINUS the Escrow Expense Amount and (ix) MINUS the Transaction Expense Amounts; (xi)"CLOSING WORKING CAPITAL AMOUNT" means the amount of Net Working Capital as of the Closing Date estimated in good faith by the Company, calculated on a basis consistent with, and using the same accounting policies, practices and procedures used in preparing the Working Capital Target (but including cash, which was not included in the determination of the Working Capital Target), and set forth on Schedule 1.7(xi) hereto or, if the Closing Date shall not occur on or prior to May 9, 2000, as set forth in a revised Schedule to be delivered by the Shareholder Party Representatives to the Parent at least one Business Day prior to the Closing Date; (xii)"ESCROW EXPENSE AMOUNT" means $200,000; (xiii)"ESCROW HOLDBACK AMOUNT" means $1,200,000; (xiv)"ESTIMATED ADJUSTMENT AMOUNT" means the sum of (A) the Estimated Working Capital Underpayment Amount, if any, PLUS (B) the Estimated CapEx Underpayment Amount, if any, as set forth in Schedule 1.7(xiv) hereto or, if the Closing Date shall not occur on or prior to May 9, 2000, as set forth in a revised Schedule to be delivered by the Shareholder Party Representatives to the Parent at least one Business Day prior to the Closing Date; 5 (xv)"ESTIMATED CAPEX OVERPAYMENT AMOUNT" means the amount equal to the difference, but only to the extent that such amount, if any, is greater than zero, of (A) the CapEx Target minus (B) the Closing CapEx Amount; (xvi)"ESTIMATED CAPEX UNDERPAYMENT AMOUNT" means the amount equal to the difference, but only to the extent that such amount, if any, is greater than zero, of (A) the Closing CapEx Amount minus (B) the CapEx Target; (xvii)"ESTIMATED TAX AMOUNT" means the good faith estimated amount of the accrued but unpaid liability of the Company, as of the Closing Date, for Income Taxes and Franchise Taxes in respect of any Final Separate Return Year and the portion of any Straddle Year ending on the Closing Date as set forth on Schedule 1.7(xvii) hereto, or if the Closing Date shall not occur on or prior to May 9, 2000, as set forth in a revised Schedule to be delivered by the Company to the Parent at least one Business Day prior to the Closing Date; (xviii)"ESTIMATED WORKING CAPITAL OVERPAYMENT AMOUNT" means the amount equal to the difference, but only to the extent that such amount, if any, is greater than zero, of (A) the Working Capital Target minus (B) the Closing Working Capital Amount; (xix)"ESTIMATED WORKING CAPITAL UNDERPAYMENT AMOUNT" means the amount equal to the difference, but only to the extent that such amount, if any, is greater than zero, of (A) the Closing Working Capital Amount minus (B) the Working Capital Target; (xx)"FRANCHISE TAXES" means franchise, net worth, capital or similar Taxes; (xxi)"INCOME TAXES" means Taxes on income (whether based on or measured by gross or net income) or in the nature of an income tax or imposed in lieu thereof; (xxii)"INDEBTEDNESS" means the aggregate amount (including the current portions thereof), net of cash and cash equivalents, of all (i) indebtedness for money borrowed from others and purchase money indebtedness (other than accounts payable in the ordinary course), (ii) indebtedness of the type described in clause (i) above guaranteed in any manner by the Company, or in effect guaranteed, directly or indirectly, in any manner by the Company through an agreement, contingent or otherwise, to supply funds to, or in any other manner invest in, the debtor, or to purchase indebtedness, or to purchase and pay for property if not delivered or pay for services if not performed, primarily for the purpose of enabling the debtor to make payment of the indebtedness or to assure the owners of the indebtedness against loss, but excluding endorsement of checks and other instruments in the ordinary course, (iii) all indebtedness of the type described in clause (i) above secured by any Lien upon property owned by the Company, even though the Company has not in any manner become liable for the 6 payment of such indebtedness, and (iv) all interest expense accrued but unpaid, and all prepayment premiums on, or relating to, any of such indebtedness, including, but not limited to, the obligations arising under the loan agreements referred to in Schedule 2.2(b); (xxiii)"NET WORKING CAPITAL" means current assets minus current liabilities, determined in accordance with generally accepted accounting principles consistently applied, as reflected on the Closing Date Balance Sheet, adjusted as necessary so that CURRENT ASSETS shall include only: cash, cash equivalents, accounts receivable (net of reserves and less the amounts due from Affiliates/Supply-Line, Inc.), inventory (net of reserves) and prepaid expenses (less any prepaid pension cost), and CURRENT LIABILITIES shall include only: accounts payable, accrued wages, benefits, salaries and commissions, and all other accruals, as of the Closing Date, including accruals for Taxes (including real estate and similarly based taxes to the extent allocable to the period ending on the Closing Date, determined on a per diem basis) that are not yet due and payable (federal, state and local); PROVIDED, HOWEVER, that Net Working Capital (A) shall not take into account as a current liability any accruals for (1) Income Taxes or (2) Franchise Taxes, (B) shall not take into account as a current asset any refund or other item in respect of any Income Tax or Franchise Tax, (C) shall not include as a current liability the current portion of Indebtedness and Capital Lease Obligations and (D) shall not include as a current liability the additional vacation accrual reflected in general ledger account #604; (xxiv)"RELATED DOCUMENTS" means, collectively, the Certificate of Merger and the Escrow Agreement; (xxv)"TRANSACTION EXPENSE AMOUNTS" means (i) $1,910,400 payable to Schroders and (ii) $540,000 payable to Dewey Ballantine LLP in connection with the transactions contemplated by this Agreement; (xxvi)"UNUSED EXPENSE AMOUNT" means the Escrow Expense Amount MINUS amounts required to be paid out to the Shareholder Party Representatives from the Escrow Expense Account as provided in the Escrow Agreement; and (xxvii)"WORKING CAPITAL TARGET" means $12,891,500. Section 1.8. Determination of Adjustments. (a)__Within 120 calendar days after the Closing Date, the Parent shall cause the Surviving Corporation to prepare and deliver to the Shareholder Party Representatives (as representatives of the Shareholder Parties) (i) the unaudited consolidated balance sheet of the Company and its subsidiaries as of the close of business on the Closing Date (the "CLOSING DATE BALANCE SHEET"), which shall present fairly the consolidated financial condition of the Company as of the close of business on the Closing Date and which shall be prepared in accordance with GAAP and on a basis consistent with, and using the same accounting policies, practices and procedures used in 7 preparing the December Balance Sheet (as defined in Section 2.6) to the extent such policies, practices and procedures are in accordance with GAAP, and (ii) a statement (the "STATEMENT") setting forth the Net Working Capital and the Actual CapEx Amount which shall be prepared on a basis consistent with, and using the same accounting policies, practices and procedures used in preparing, the Working Capital Target (except with respect to the inclusion of cash, which was not included in the determination of the Working Capital Target) and the Closing CapEx Amount. Attached hereto as Schedule 1.8(a)is a PRO FORMA calculation of Net Working Capital, based on the December Balance Sheet assuming that the Closing Date occurred on December 31, 1999. The parties acknowledge and agree that such Schedule (i) reflects the general ledger accounts to be included in determining Net Working Capital (except that the parties acknowledge that the $1,850,000 Note Receivable referred to therein has been paid and, accordingly, will not be reflected, as such, as a current asset), (ii) has been calculated on a basis consistent with, and using the same accounting policies and procedures used in preparing, the Working Capital Target and (iii) reflects the manner in which the parties agree that the actual Net Working Capital as of the close of business on the Closing Date shall be calculated. (b)__During the 30 calendar day period following receipt of the Closing Date Balance Sheet and the Statement by the Shareholder Party Representatives (and thereafter during the 45 calendar day period referred to in Section 1.8(c), if applicable) the Shareholder Parties, Shareholder Party Representatives and their independent auditors shall have reasonable on site access during normal business hours to the properties, books, records, schedules, analyses and working papers of the Parent and the Surviving Corporation and be permitted to review and make copies reasonably required of the working papers and any schedules, analyses and other documentation of the Parent, the Surviving Corporation and their independent auditors relating to the Closing Date Balance Sheet and the Statement. The Closing Date Balance Sheet and the Statement shall become final and binding upon the parties on the thirtieth calendar day following delivery thereof, unless the Shareholder Party Representatives give written notice of their disagreement with the Closing Date Balance Sheet and/or the Statement ("NOTICE OF DISAGREEMENT") to the Parent prior to such date. Any Notice of Disagreement shall (i) specify in reasonable detail the nature of any disagreement so asserted, and (ii) only include disagreements based on mathematical errors or based on the Closing Date Balance Sheet or the Statement not being prepared in accordance with this Agreement. If a Notice of Disagreement complying with the preceding sentence is received by the Parent in a timely manner, then the Closing Date Balance Sheet and the Statement (as revised in accordance with clause (x) or (y) below) shall become final and binding upon the parties on the earlier of (x) the date the Shareholder Parties and the Parent resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement or (y) the date any disputed matters are finally resolved in writing by the Accounting Firm (as defined below). (c)__During the 45 calendar day period following the delivery of a Notice of Disagreement that complies with the preceding paragraph, the Shareholder Parties and the Parent shall seek in good faith to resolve in writing any differences which they may have with respect to the matters specified in the Notice of Disagreement. 8 During such period the Parent, the Surviving Corporation and their representatives shall be permitted to review and make copies reasonably required of the working papers and any schedules, analyses and any other documentation of the Shareholder Parties, the Shareholder Party Representatives and their independent auditors relating to the preparation of the Notice of Disagreement. If, at the end of such 30-day period, the Shareholder Parties and the Parent have not so resolved such differences, the Shareholder Parties and the Parent shall submit to Arthur Andersen or, in the event for any reason Arthur Andersen is unwilling or unable to act or the Parent and the Shareholder Party Representatives otherwise agree (it being understood that no party has any unilateral right to object to the retention of Arthur Andersen for purposes of this Section 1.8), such other nationally recognized accounting firm as the Parent and Shareholder Party Representatives shall mutually designate (the "ACCOUNTING FIRM") for review and resolution any and all matters which remain in dispute and which were properly included in the Notice of Disagreement. The Shareholder Parties and the Parent shall use reasonable efforts to cause the Accounting Firm to render a decision resolving the matters in dispute within 30 calendar days following the submission of such matters to the Accounting Firm. The Closing Date Balance Sheet and the Statement will be deemed to be as determined by the Accounting Firm. Such determination (the "ACCOUNTANTS' DETERMINATION") shall be (A) in writing, (B) furnished to the Shareholder Party Representatives and Parent as soon as practicable after the items in dispute have been referred to the Accounting Firm, (C) made in accordance with the provisions of this Section 1.8 and (D) nonappealable and incontestable by any Shareholder, the Surviving Corporation, the Parent and each of their respective Affiliates and successors and not subject to collateral attack for any reason, absent manifest error. Notwithstanding any of the foregoing to the contrary, the Parent shall not be prejudiced by the delivery of the Closing Date Balance Sheet and the Statement and the Shareholder Parties shall not be prejudiced by the delivery of the Notice of Disagreement and neither the Parent nor the Shareholder Parties shall be precluded from raising any issues, objections or adjustments not previously raised at any time prior to either the Accountant's Determination or the final determination of the matters contemplated by this Section 1.8. The Shareholder Parties, the Parent and the Surviving Corporation agree that judgment may be entered upon the determination of the Accounting Firm in any court having jurisdiction over the party against which such determination is to be enforced. Except as specified in the following sentence, the cost of any arbitration (including the fees and expenses of the Accounting Firm) pursuant to this Section 1.8 shall be borne by the Shareholder Parties and the Parent in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportionate allocations shall also be determined by the Accounting Firm at the time the determination of the Accounting Firm is rendered on the merits of the matters submitted. The fees and expenses of the Parent's and Surviving Corporation's independent auditors incurred in connection with the preparation of the Closing Date Balance Sheet and the Statement and the review by them of any Notice of Disagreement shall be borne by the Parent and the Surviving Corporation, and the fees and expenses of the Shareholder Parties' independent auditors incurred in connection with any review by them of the Closing Date Balance Sheet and the Statement shall be borne by the Shareholders. 9 (d)__(i) If the Net Working Capital plus the Estimated Working Capital Overpayment Amount, if any, is greater than the Working Capital Target (the amount of such excess being referred to herein as the "UNDERPAYMENT AMOUNT"), then the Shareholders shall be entitled to receive, as part of the Aggregate Merger Consideration, the Underpayment Amount and, within five (5) Business Days following the final determination of the Net Working Capital, the Surviving Corporation shall pay, or cause to be paid, to the Shareholders an amount equal to the Underpayment Amount, such payments to the Shareholders to be made to each Shareholder in accordance with such Shareholder's Applicable Percentage. (ii)If the Net Working Capital plus the Estimated Working Capital Overpayment Amount, if any, is less than the Working Capital Target (the amount of such shortfall being referred to herein as the "OVERPAYMENT AMOUNT"), then the Surviving Corporation shall be entitled to receive the Overpayment Amount and, within five (5) Business Days following the final determination of the Net Working Capital, the Shareholders shall pay, or cause to be paid, to the Surviving Corporation the Shareholder's respective Applicable Percentages of the Overpayment Amount. (e)__(i)If the CapEx Target less the Estimated CapEx Overpayment Amount, if any, is greater than the Actual CapEx Amount (the amount of such excess being referred to herein as the "CAPEX OVERPAYMENT AMOUNT"), then the Surviving Corporation shall be entitled to receive the CapEx Overpayment Amount and, within five (5) Business Days following the final determination of the Actual CapEx Amount, the Shareholders shall pay, or cause to be paid, to the Surviving Corporation the Shareholder's respective Applicable Percentages of the CapEx Overpayment Amount. (ii)If the CapEx Target less the Estimated CapEx Overpayment Amount, if any, is less than the Actual CapEx Amount (the amount of such shortfall being referred to herein as the "CAPEX UNDERPAYMENT AMOUNT"), then the Shareholders shall be entitled to, as part of the Aggregate Merger Consideration, the CapEx Underpayment Amount and, within five (5) Business Days following the final determination of the Actual CapEx Amount, the Surviving Corporation shall pay, or cause to be paid, to the Shareholders an amount equal to the CapEx Underpayment Amount, such payments to the Shareholders to be made to each Shareholder in accordance with such Shareholder's Applicable Percentage. (f)__If any of the Overpayment Amount and the CapEx Overpayment Amount, in each case, if any (collectively, the "PARENT ADJUSTMENT AMOUNTS"), is not satisfied within five (5) Business Days, such Parent Adjustment Amounts may, at the option of the Parent, to the extent of any remaining unsatisfied amount, be satisfied out of the Escrow Holdback Account and Parent the Shareholder Party Representative shall execute and deliver to the Escrow Agent joint written instructions directing the Escrow Agent to (i) pay such Parent Adjustment Amounts to the Surviving Corporation out of the Escrow Holdback Account and (ii) after payment of any amounts to be paid from the 10 Escrow Adjustment Amount Account to the Shareholders as contemplated in Section 1.8(g), if any, release any funds contained in the Escrow Adjustment Amount Account to the Surviving Corporation. Within 15 days after the date the Parent Adjustment Amounts are paid to the Surviving Corporation from the Escrow Holdback Account pursuant to the immediately preceding sentence, the Shareholders, in accordance with their Applicable Percentages, shall deliver to the Escrow Agent an amount equal to the Parent Adjustment Amounts to replenish the Escrow Holdback Account. Nothing contained in this subparagraph shall be construed as an election of remedies by Parent and the Surviving Corporation and the Parent and the Surviving Corporation shall have and retain all other rights and remedies existing in their favor at law or in equity for a breach of the provisions of this Section 1.8. (g)__If any of the Underpayment Amount and the CapEx Underpayment Amount, in each case, if any (collectively, the "SHAREHOLDER ADJUSTMENT AMOUNTS"), is not satisfied within five (5) Business Days, such Shareholder Adjustment Amounts may, at the option of the Shareholder Party Representatives be satisfied out of the Escrow Adjustment Amount Account and the Parent and the Shareholder Party Representatives shall execute and deliver to the Escrow Agent joint written instructions directing the Escrow Agent to (i) pay such Shareholder Adjustment Amounts to the Shareholders, such payment to be made to each Shareholder in accordance with such Shareholder's Applicable Percentage and (ii) release the balance of the Escrow Adjustment Amount Account, if any, to the Surviving Corporation. Nothing contained in this subparagraph shall be construed as an election of remedies by any Shareholder or the Shareholder Party Representatives and the Shareholders and Shareholder Party Representatives shall have and retain all other rights and remedies existing in their favor at law or in equity for breach of the provisions of this Section 1.8. (h)__Parent and the Surviving Corporation agree that following the Closing they shall not take any actions which would affect the Closing Date Balance Sheet or the Statement with respect to the accounting books and records of the Company on which the Closing Date Balance Sheet or the Statement is to be based that are not consistent with the Company's past practices. Section 1.9. Payments. (a)__From time to time, on and after the Closing Date, the Parent shall make available and pay, or cause to be made available and to be paid, cash in amounts and at the times necessary for the prompt payment of all amounts payable to the Shareholders or to be placed into escrow as provided in this Agreement. (b)__The Aggregate Merger Consideration shall be paid as follows: (i)At the Effective Time, each Shareholder shall become entitled to receive, upon surrender by such Shareholder of the certificate(s) which immediately prior to the Effective Time represented the Outstanding Company Common Stock held by such Shareholder, from the Shareholder Payments Escrow Account in accordance with Section 1.10(b) and the applicable provisions 11 of the Escrow Agreement, such Shareholder's Applicable Percentage (based on the certificates so surrendered) of the Closing Date Payment Amount; (ii)The Overpayment Amount, the Underpayment Amount, the CapEx Overpayment Amount, and the CapEx Underpayment Amount, in each case, if any, shall be paid in accordance with Section 1.8 and the applicable provisions of the Escrow Agreement; (iii)The Additional Escrow Amount, if any, shall be paid from the Escrow Holdback Account in accordance with Section 1.10(a) and the applicable provisions of the Escrow Agreement; (iv)The Unused Expense Amount, if any, shall be paid from the Escrow Expense Account in accordance with Section 1.10(d) and the applicable provisions of the Escrow Agreement; and (v)Amounts payable pursuant to Sections 4.11(a)(iii), 4.11(a)(iv), 4.11(b) and 4.11(d) shall be paid in accordance with such Sections, Section 1.10(e) and the applicable provisions of the Escrow Agreement. (c)__Any payments to be made to the Shareholders pursuant to this Article I (including payments payable pursuant to this Article I contemplated by Section 4.11) shall be made by wire transfer of immediately available funds to the Escrow Agent for payment to the Shareholders in accordance with the provisions of the Escrow Agreement or directly to the Shareholders in the same manner as payments from the Escrow Agent to the Shareholders as provided in the Escrow Agreement. (d)__Except as provided in the Escrow Agreement, no interest will be paid or will accrue on the Closing Date Payment Amount payable upon the surrender of any certificates representing Outstanding Company Common Stock. Until surrendered as contemplated by Section 1.9(b) and the Certificate of Merger, each certificate representing a share of Outstanding Company Common Stock shall be deemed, at and after the Effective Time, to represent only the right to receive upon such surrender cash as contemplated by this Article I, the Certificate of Merger and the DGCL. (e)__In the event that (A) the Shareholders owe any amounts or are obligated to make any payments to the Parent, the Surviving Corporation or any of their Affiliates under the provisions of Article I of this Agreement (with respect to any adjustment to the Aggregate Merger Consideration or otherwise) and (B) the Parent or the Surviving Corporation owes any amount or is obligated to make any payment to the Shareholders under the provisions of Article I of this Agreement (with respect to any adjustment to the Aggregate Merger Consideration or otherwise), then such amounts shall be netted and payment of such net amount shall be made by the appropriate party (whether by release of amounts held in escrow in accordance with this Agreement or otherwise). (f)__If any certificate which immediately prior to the Effective Time represented Outstanding Company Common Stock shall have been lost, stolen or 12 destroyed, upon the making of an affidavit of that fact by the Shareholder claiming such certificate to be lost, stolen or destroyed and the provision by such Shareholder of such indemnity against any claim that may be made with respect to such certificate as the Surviving Corporation may reasonably require, such Shareholder shall be entitled to receive all payments to which such Shareholder would be entitled upon the actual surrender of such certificate. Section 1.10. Escrows. (a)__The Escrow Holdback Amount shall be placed in a separate escrow account (the "ESCROW HOLDBACK ACCOUNT"), by wire transfer of immediately available funds on the Closing Date to the Escrow Holdback Account. The Escrow Holdback Amount shall be delivered to Old National Trust Company (the "ESCROW AGENT"), to be held and released by the Escrow Agent in accordance with the Escrow Agreement in substantially the form of Exhibit A hereto (the "ESCROW AGREEMENT") to be entered into by the Surviving Corporation, the Shareholder Parties, the Shareholder Party Representatives, the Parent and the Escrow Agent on the Closing Date. The Escrow Agreement shall provide that the Escrow Holdback Amount, together with net interest and earnings thereon (collectively, the "ESCROW HOLDBACK FUND"), will be held in escrow until the date that is sixteen months from the Closing Date, unless otherwise released earlier, to satisfy (i) any indemnification claims hereunder, as more fully described in the Escrow Agreement, (ii) any decrease in the Aggregate Merger Consideration pursuant to Section 1.8(f), 4.11(a)(iii) or 4.11(d), or (iii) any fees or expenses payable from the Escrow Account as provided in Section 8.12(a). (b)__The Closing Date Payment Amount shall be placed in a separate escrow account (the "SHAREHOLDER PAYMENTS ESCROW ACCOUNT"), by wire transfer of immediately available funds on the Closing Date to the Shareholder Payments Escrow Account, to be held, together with net interest and earnings thereon, by the Escrow Agent and released to Shareholders in accordance with the Escrow Agreement. (c)__The Estimated Adjustment Amount, if any, shall be placed in a separate escrow account (the "ESCROW ADJUSTMENT AMOUNT ACCOUNT"), by wire transfer of immediately available funds on the Closing Date to the Escrow Adjustment Amount Account, to be held, together with net interest and earnings thereon, by the Escrow Agent and released to the Shareholders or to the Surviving Corporation in accordance with the provisions of Sections 1.8(f), 1.8(g) and the Escrow Agreement. (d)__The Escrow Expense Amount shall be placed in a separate escrow account (the "ESCROW EXPENSE ACCOUNT"), by wire transfer of immediately available funds on the Closing Date to the Escrow Expense Account, to be held, together with net interest and earnings thereon, by the Escrow Agent and released to the Shareholder Party Representatives and/or the Shareholders in accordance with the provisions of the Escrow Agreement. (e)__Amounts from time to time payable pursuant to Sections 4.11(a)(iii), 4.11(a)(iv), 4.11(b) and 4.11(d) shall be placed in a separate escrow account 13 (the "ESCROW TAX ACCOUNT"), by wire transfer of immediately available funds to the Escrow Tax Account when due, to be held, together with net interest and earnings thereon, by the Escrow Agent and released to the Shareholders in accordance with the provisions of the Escrow Agreement. Section 1.11. PAYMENT OF INDEBTEDNESS, CAPITAL LEASE OBLIGATIONS AND TRANSACTION EXPENSE AMOUNTS. (a)__On the Closing Date, the Parent shall direct the lenders who will be providing the financing for the transactions contemplated hereby to deliver to the holders of Indebtedness and Capital Lease Obligations (subject to Section 1.11(b) below) an amount sufficient to repay all Indebtedness and Capital Lease Obligations outstanding as of the Closing Date, with the result that immediately following the Closing (subject to Section 1.11(b) below) there will be no further monetary obligations of the Company with respect to any Indebtedness or Capital Lease Obligations outstanding immediately prior to the Closing. On the Closing Date, the Company will provide the Parent, Merger Sub and such lenders with customary pay-off letters from all holders of Indebtedness and Capital Lease Obligations in form and substance satisfactory to the Parent, and make arrangements satisfactory to the Parent for such holders to provide to the Parent recordable form mortgage and lien releases, canceled notes, trademark and patent assignments and other documents reasonably requested by the Parent simultaneously with or promptly following the Closing. (b)__In the event that the Parent and the Company mutually agree to not pay off one or more Capital Lease Obligations at the Closing, then such Capital Lease Obligation(s) shall not be paid off and the aggregate outstanding principal amount due on such Capital Lease Obligation(s) as of the Closing Date (exclusive of any prepayment premiums or penalties) shall be used to reduce the Capital Lease Obligations Amount and decrease the purchase price and determine the Closing Date Payment Amount pursuant to the provisions of Section 1.7 hereof. (c) On the Closing Date, the Parent shall cause the lenders who will be providing the financing for the transactions contemplated hereby to pay the Transaction Expense Amounts. Section 1.12. No Duplication. Notwithstanding any provision to the contrary contained in this Agreement, all adjustments to be made in the determination of the Aggregate Merger Consideration, including the calculation of the Overpayment Amount, the Underpayment Amount, the CapEx Overpayment Amount, the CapEx Underpayment Amount and the Additional Escrow Amount, shall be made without duplication. 14 ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SHAREHOLDER PARTIES Subject to the terms and conditions of this Agreement (including Section 4.7), the Company and each of the Shareholder Parties jointly and severally represent and warrant to the Parent and Merger Sub with respect to the matters provided for in Sections 2.1(b), 2.2(b), 2.3(a), 2.3(b), 2.4, 2.5(b) and 2.6 through 2.25, and each of the Shareholder Parties severally (and, but only to the extent contemplated by the proviso to Section 7.2(a), jointly) represent and warrant to the Parent and Merger Sub as to such Shareholder Party (and such Shareholder Party's Company Common Stock) but not (except as contemplated by the proviso to Section 7.2(a)) as to any other Shareholder Party (or any such other Shareholder Party's Company Common Stock) with respect to the matters provided for in Sections 2.1(a), 2.2(a), 2.3(c) and 2.5(a), as follows: Section 2.1. DUE EXECUTION AND DELIVERY, ETC. (a)__Each Shareholder Party has all necessary power and authority (corporate or otherwise) to execute and deliver this Agreement and the Related Documents and to consummate the transactions contemplated by this Agreement and the Related Documents. The execution, delivery and performance of this Agreement and the Related Documents by each Shareholder Party and the consummation by each Shareholder Party of the transactions contemplated by this Agreement and the Related Documents have been duly authorized by all necessary action on the part of such Shareholder Party and no other proceedings on the part of such Shareholder Party are necessary to authorize this Agreement or the Related Documents or for such Shareholder to consummate the transactions contemplated by this Agreement or the Related Documents. This Agreement and the Related Documents have been duly and validly executed and delivered by each Shareholder Party and constitute legal, valid and binding obligations of such Shareholder, enforceable against such Shareholder Party in accordance with their respective terms, except as enforcement hereof may be limited by applicable bankruptcy, insolvency or other similar laws affecting the enforcement of creditors rights in general, moratorium laws or general principles of equity. If such Shareholder Party is a trust, such trust is a validly created and existing trust under applicable state law. (b)__The Company has all necessary corporate power and authority to execute and deliver this Agreement and the Related Documents to which it is a party. The execution, delivery and performance of this Agreement and the Related Documents by the Company and the consummation by the Company of the transactions contemplated by this Agreement and the Related Documents have been duly authorized by all necessary corporate action on the part of the Company and, except for the approval of this Agreement and the transactions contemplated herein by shareholders of the Company in accordance with the DGCL, no other proceedings on the part of the Company are necessary to authorize this Agreement or the Related Documents or for the Company to consummate the transactions contemplated by this Agreement or the Related Documents. 15 This Agreement and the Related Documents have been duly and validly executed and delivered by the Company and, subject to such shareholder approval, constitute legal, valid and binding obligations of the Company, enforceable in accordance with their respective terms, except as enforcement hereof may be limited by applicable bankruptcy, insolvency or other similar laws affecting the enforcement of creditors' rights in general, moratorium laws or general principles of equity. Section 2.2. No Violation. (a)__Subject to the shareholder approval referred to in Section 2.1(b) and except as set forth on Schedule 2.2(a), neither the execution, delivery or performance of this Agreement or the Related Documents by any Shareholder Party nor the consummation by any Shareholder Party of the transactions contemplated by this Agreement or the Related Documents nor compliance by any Shareholder Party with any of the provisions hereof or thereof will (i) conflict with or result in any breach of any provision of the certificate of incorporation or by-laws (or similar governing instrument or organizational document) of such Shareholder Party, (ii) result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation or acceleration or loss of material benefit) under, any of the terms, conditions or provisions of any note, lease, license, contract or agreement to which such Shareholder Party is a party or by which such Shareholder Party may be bound or (iii) violate any order, writ, injunction, decree, statute, treaty, rule or regulation applicable to such Shareholder Party. (b)__Subject to the shareholder approval referred to in Section 2.1(b) and to receipt of consents and/or waivers under the agreements listed in Schedules 2.2(a) and 2.2 (b), neither the execution and delivery of this Agreement or the Related Documents by the Shareholders Parties or the Company nor the consummation by the Shareholder Parties or the Company of the transactions contemplated by this Agreement or the Related Documents nor compliance by any Shareholder Party or the Company with any of the provisions of this Agreement or the Related Documents will (i) conflict with or result in any breach of any provision of the certificate of incorporation or by-laws (or similar governing instrument or organizational document) of the Company, (ii) result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation or acceleration or loss of material benefit) under, any of the terms, conditions or provisions of any note, lease, license, contract or agreement to which the Company is a party or by which the Company may be bound or (iii) violate any order, writ, injunction, decree, statute, treaty, rule or regulation applicable to the Company. Section 2.3. Capital Stock. (a)__Schedule 2.3(a) sets forth the total number of outstanding shares of Company Common Stock of the Company and the number and percentage of shares of Company Common Stock held by each Shareholder. Such shares constitute all of the issued and outstanding shares of capital stock of the Company. Each of such shares is 16 duly authorized, validly issued, fully paid and nonassessable and free of preemptive rights. (b)__Other than pursuant to the Poly-Seal Corporation 1997 Stock Option Plan (the "STOCK OPTION PLAN") attached as Schedule 2.3(b), there are no options, warrants, rights or agreements or other commitments obligating the Company to issue or sell any shares of capital stock, or any security convertible into or exercisable or exchangeable for any such shares of capital stock. No option granted under the Stock Option Plan is outstanding other than as set forth in Schedule 2.3(b). (c)__Except as set forth in Schedule 2.3(c), each of the Shareholder Parties has, and at the Closing will have, good and valid title (both of record and beneficially) to the shares of Company Common Stock held by such Shareholder Party, free and clear of any Liens. There are no voting trusts, proxies or other agreements restricting the voting, dividend rights or disposition of the Shares held by any Shareholder Parties. As used in this Agreement, the term "LIEN" means and includes security interests, mortgages, lines, pledges, charges, easements, reservations, restrictions, equities, rights of way, options, rights of first refusal and all other encumbrances, whether or not relating to the extension of credit or the borrowing of money. Section 2.4. ORGANIZATION OF THE COMPANY. (a)__The Company is a corporation duly organized, validly existing and in good standing under the laws of Delaware and has all requisite corporate power and authority to own, lease or operate its properties and to carry on its business as now being conducted. The Company is duly qualified or licensed to do business and in good standing in each jurisdiction in which the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification or licensing necessary, except in such jurisdictions where the failure to be so duly qualified or licensed and in good standing would not have a Material Adverse Effect. As used in this Agreement, "MATERIAL ADVERSE EFFECT" means a change or effect or any event, action, occurrence, condition or omission that could reasonably be expected to result in a change or effect on the Business or the Company that, in the aggregate with all other similar changes or effects, is materially adverse to the business, assets, condition (financial or otherwise) or results of operations of the Business taken as a whole, but shall not include any changes or effects relating to or resulting from (i) general economic, political or market conditions, (ii) changes in any statute, law, ordinance, regulation, rule, code, order or other requirement or rule of law (each, a "LAW") or in the interpretation of any Law by any court of competent jurisdiction or any governmental, regulatory or administrative authority, agency or commission (a "GOVERNMENTAL ENTITY"), or (iii) changes in GAAP (as hereinafter defined) affecting the transactions contemplated by this Agreement or compliance with the terms hereof. (b)__The Company has had no Subsidiaries since December 31, 1999. Schedule 2.4(b) sets forth a list of all entities which were Subsidiaries of the Company within the past five years. As used herein, a "SUBSIDIARY" of an entity means any entity in 17 which the specified entity directly or indirectly owns 50% or more of the general voting interest. Except as listed in Schedule 2.4(b), the Company does not own, directly or indirectly, any capital stock or other ownership or participation interest in any entity. Section 2.5. CONSENTS AND APPROVALS. (a)__No filing with, and no permit, authorization, consent or approval of any Governmental Entity is necessary for execution, delivery or performance by the Shareholder Parties of this Agreement, except (i) for the filing of the Certificates of Merger, (ii) for the applicable requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), or (iii) as a result of facts or circumstances particular to the Company, Merger Sub or the Parent. (b)__No filing with, and no permit, authorization, consent or approval of any Governmental Entity is necessary for execution, delivery or performance by the Company of this Agreement, except (i) for the filing of the Certificate of Merger, (ii) for the applicable requirements of the HSR Act or (iii) as a result of facts or circumstances particular to the Shareholder Parties, Merger Sub or the Parent. Section 2.6 Financial Statements. Attached as Schedule 2.6 are the audited consolidated balance sheet of the Company and its Subsidiaries as of December 31, 1999 (the "DECEMBER BALANCE SHEET") and as of December 31, 1998, and the related audited consolidated statements of operations, stockholders' equity and cash flows for the years then ended (collectively, the "FINANCIAL STATEMENTS"). The Financial Statements (i) are in accordance with the books and records of the Company and (ii) present fairly, in all material respects, the consolidated financial position of the Company and its Subsidiaries as of the dates thereof and the consolidated results of operations of the Company and its Subsidiaries for the periods covered thereby, in conformity with United States generally accepted accounting principles ("GAAP"), except as described in Schedule 2.6 hereto or in the notes to the Financial Statements. Section 2.7. Absence of Certain Changes. Except as set forth in Schedule 2.7 and except as a result of matters permitted or required by this Agreement, since December 31, 1999 through the date of this Agreement (i) the Company has conducted the Business in the ordinary course consistent with past practice, (ii) the Company has not taken any action which would have constituted a violation of Section 4.1(d) if Section 4.1(d) had applied since December 31, 1999 (other than the payment on March 6, 2000 of the ordinary dividend of $0.06 per share to Shareholders of record at March 3, 2000), (iii) the Company has not experienced any material damage, destruction, or loss (whether or not covered by insurance) to its properties, and (iv) the Company has not suffered any other Material Adverse Effect. None of the Shareholder Parties shall have any liability for a breach of the representations and warranties contained in this Section 2.7, if (i) the facts and circumstances giving rise to such breach are the subject matter of another representation or warranty set forth in this Article II, (ii) such other representation or warranty is qualified by notice, knowledge (including Knowledge of the Company or Best Knowledge of the Company), materiality (including Material Adverse Effect) or such other qualification as is contained in such other representation or warranty, and (iii) 18 such facts and circumstances would not result in a breach of such other representation or warranty as qualified. Section 2.8. Absence of Undisclosed Liabilities. Except as set forth in Schedule 2.8, other than with respect to Taxes (which are addressed in Section 2.15), and except as a result of matters permitted or required by this Agreement, as of the date of this Agreement, the Company has no Liabilities (as defined below) of a type required to be reflected on a balance sheet prepared in accordance with GAAP, except (a) Liabilities reflected on the Financial Statements (including any notes thereto) or in the Schedules hereto, (b) Liabilities incurred after December 31, 1999 in the ordinary course of business (other than any Liability arising from breach of contract, breach of warranty, tort, infringement or violation of any law or any action, suit or other legal proceeding), and (c) Liabilities (other than any Liability arising from breach of contract) under contracts which have arisen in the ordinary cause of business or under any contract disclosed under Section 2.16. Other than as reflected in the Schedules hereto, there are no loss contingencies (as such term is used in Financial Accounting Standards Board in March 1975) of or affecting the Company which are not adequately provided for or disclosed on the balance sheet of the Company and its Subsidiaries as of December 31, 1999 included in the Financial Statements (the "December Balance Sheet") (or the notes thereto), or the books and records of the Company for subsequent periods, in each case to the extent required by GAAP. None of the Shareholder Parties shall have any liability for a breach of the representations and warranties contained in this Section 2.8, if (i) the facts and circumstances giving rise to such breach are the subject matter of another representation or warranty set forth in this Article II, (ii) such other representation or warranty is qualified by notice, knowledge (including Knowledge of the Company or Best Knowledge of the Company) materiality (including Material Adverse Effect) or such other qualification as is contained in such other representation or warranty and (iii) such facts and circumstances would not result in a breach of such other representation or warranty as qualified. As used herein, "LIABILITY" means any liability or obligation, whether known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated and whether due or to become due, regardless of when asserted. Section 2.9. Litigation. Except as set forth in Schedule 2.9, other than with respect to Taxes (which are addressed in Section 2.15), as of the date of this Agreement, there is no suit (in law or equity), claim, action, proceeding or investigation pending against the Company or any Subsidiary before any Governmental Entity or, to the Knowledge of the Company, threatened against the Company or any Subsidiary. Neither the Company nor any Subsidiary is subject to, or in default under the terms of, any judgment, order or decree of any Governmental Entity specifically applicable to the Company or any Subsidiary. Section 2.10. Compliance with Applicable Law, Permits. Schedule 2.10 hereto sets forth a true and complete list of all material permits, licenses, variances, exemptions, orders, approvals and authorizations of all Governmental Entities held by the Company. 19 The Company possesses all material permits, licenses, variances, exemptions, orders, approvals and authorizations of all Governmental Entities necessary for the lawful conduct of the Business substantially as it is currently conducted and (b) the Business is being conducted in compliance in all material respects with all applicable laws. This Section 2.10 does not relate to matters with respect to (i) environmental matters, which are the subject of Section 2.11, (ii) benefits and employment matters, which are the subject of Section 2.13 and (iii) Taxes, which are the subject of Section 2.15. Section 2.11. ENVIRONMENTAL MATTERS. (a)__Except as set forth in Schedule 2.11, (i) the Company and its Subsidiaries have complied and are in compliance with all applicable Environmental Laws (as defined below) in all material respects, (ii) no Hazardous Substances (as defined below) are present at or have been disposed on or released or discharged onto, under or from any of the properties currently or formerly owned, leased or operated by the Company or its Subsidiaries (including soils, groundwater, surface water, buildings or other structures) in violation of or so as to give rise to any Liability (contingent or otherwise) or any investigatory, corrective or remedial obligation of the Company under any Environmental Law, (iii) the Company and its Subsidiaries have not disposed of or arranged for the disposal of any Hazardous Substances at any property in violation of or so as to give rise to any Liability (contingent or otherwise) or any investigatory, corrective or remedial obligation of the Company under any Environmental Law, (iv) neither the Company nor the Shareholder Parties have received any written notice, demand, letter request for information or claim alleging that the Company is or may be in violation of or liable or potentially responsible under any Environmental Law, (v) there are no underground storage tanks at any facility or property owned or operated by the Company, (vi) neither the Company nor any of its Subsidiaries has expressly assumed or undertaken any liability, including, without limitation, any obligation for corrective or remedial action, of any other person relating to Environmental Law; and (vii) the Company has made available to Parent all environmental audits, reports and other material environmental documents relating to the Company's, its Subsidiaries, or their respective Affiliates or predecessors' past or current properties, facilities or operations which are in its possession or under its reasonable control. (b)__As used herein, the term "ENVIRONMENTAL LAW" means any international, national, regional, federal, state, municipal or local law, regulation, order, judgement, decree or common law or other requirements of any Governmental Entity, as in effect prior to, on or after the date hereof relating to the protection of the environment (including, without limitation, natural resources) or workplace or human health or safety, including the manufacture, introduction into commerce, export, import, handling, use, presence, disposal or release of any Hazardous Substance. (c)__As used herein, the term "HAZARDOUS SUBSTANCE" means any pollutant, contaminant, hazardous waste, acutely hazardous waste, radioactive waste, infectious waste, toxic substance or hazardous substance or other material, substance or waste with respect to which liability or standards of conduct may be imposed pursuant to any Environmental Law. 20 (d)__The Shareholder Parties' and the Company's representations and warranties regarding environmental matters are limited to those contained in this Section 2.11. Section 2.12. INTELLECTUAL PROPERTY. (a)__Schedule 2.12 lists or describes all patents, registered copyrights and trademarks and applications therefor and material unregistered trademarks used in the conduct of the Business as of the date hereof and all material license agreements pursuant to which the Company is licensee in respect of any patents, trademarks or other Intellectual Property (as defined below) used in the conduct of the Business as of the date hereof. The Company owns or has the right to use all Intellectual Property as is necessary to conduct its business substantially in the same manner as currently conducted; none of the Shareholder Parties, the Company or any Subsidiary has received written notice from any third party regarding any actual or potential infringement by the Company or any Subsidiary of any Intellectual Property of any third party or written notice from any third party regarding any assertion or claim challenging the validity of any such Intellectual Property; the current conduct of the Business does not, to the Knowledge of the Company, conflict with any Intellectual Property of any third party; and, to the Knowledge of the Company, no third party is infringing the Intellectual Property of the Company. (b)__As used herein, the term "INTELLECTUAL PROPERTY" includes all patents, registered and unregistered trademarks, trade names, copyrights, service marks and registrations and applications therefor, know-how, trade secrets, proprietary processes and formulae, confidential information, franchises, licenses, inventions, instructions, marketing materials, trade dress, logos and designs and all available documentation and media constituting, describing or relating to the foregoing, including, without limitation, manuals, memoranda and records. (c)__The Shareholder Parties' representations and warranties regarding Intellectual Property and Intellectual Property matters are limited to those contained in this Section 2.12. Section 2.13. EMPLOYEE BENEFIT PLANS. (a)__Schedule 2.13(a) contains a complete list of all employee benefit plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), all employment and severance agreements, and all bonus, stock option, stock purchase, incentive, deferred compensation, supplemental retirement, severance and other similar employee benefit plans, programs and agreements, in each case that is sponsored, maintained, contributed to or required to be contributed to by the Company, or to which the Company is a party for the benefit of any current or former employee of the Company (together, the "EMPLOYEE PLANS"). (b)__The Shareholder Parties or the Company have delivered or made available to the Parent accurate and complete copies of the following with respect to the 21 Employee Plans, to the extent applicable: (i) plan documents and amendments thereto, (ii) summary plan descriptions, (iii) trust documents, insurance contracts and other funding instruments, (iv) the most recently prepared financial statement and actuarial report, (v) the most recently filed annual report and (vi) determination letters received from the Internal Revenue Service. (c)__All Employee Plans have been administered and operated in compliance in all material respects with the requirements of ERISA, the Internal Revenue Code of 1986, as amended (the "CODE") and all other applicable Laws. Each Employee Plan that is intended to be qualified under Section 401(a) of the Code has received a determination letter from the Internal Revenue Service stating that it is so qualified, and such determination letter has not been revoked. There have been no "prohibited transactions" within the meaning of Section 4975 of the Code or Section 406 of ERISA involving any of the Employee Plans that could subject the Company to any material penalties or taxes. (d)__Except as set forth on Schedule 2.13(d): (i)The Company has made all contributions under the Employee Plans required to be made under the terms of such plans and applicable law, including the payment of premiums required to be made to the PBGC, other insurance premiums and in the case of all Employee Plans that are pension plans within the meaning of Section 3(2) of ERISA, all employee contributions have been remitted to the appropriate trusts or accounts on a timely basis. (ii)Each Employee Plan that is subject to the minimum funding requirements of Section 412 of the Code is in compliance with such requirements, and no Employee Plan has a minimum funding variance or waiver under Section 412(d) of the Code. (iii)Neither the Company, its subsidiaries, nor any trade or business that, together with the Company or any of its subsidiaries, would be deemed a "single employer" under Section 4001(b) of ERISA (an "ERISA AFFILIATE") has any liability under Title IV of ERISA including, without limitation, with respect to previously terminated Employee Plans (other than for the payment of premiums to the Pension Benefit Guaranty Corporation) and, to the Best Knowledge of the Company, no condition exists that presents a material risk to the Company of incurring any liability under such Title. (iv)Neither the Company nor any of its subsidiaries participates in any multiemployer plan (as defined in Section 3(37) of ERISA), nor has the Company, its subsidiaries or any ERISA Affiliate incurred any withdrawal liability to a multiemployer plan that has not been satisfied in full. (e)__Except as set forth on Schedule 2.13(e), no actual or, to the Knowledge of the Company, threatened disputes, lawsuits, claims (other than routine claims for benefits), investigations or audits by any person or Governmental Entity have 22 been filed or, to the Knowledge of the Company, are pending with respect to the Employee Plans or the Company in connection with any Employee Plan or the fiduciaries or administrators thereof. (f)__Except as set forth in Schedule 2.13(f), there is no contract, agreement, plan or arrangement covering any person that, individually or collectively, could give rise to the payment of any amount that would not be deductible by the Company by reason of Section 280G of the Code. (g)__No "reportable event" (within the meaning of Section 4043 of ERISA) has occurred with respect to any Employee Plan, within the last three years, for which the notice requirement has not been waived under Section 4043 of ERISA or the regulations thereunder, other than as a result of the transactions contemplated herein. (h)__The Company and its ERISA Affiliates have neither made nor agreed to make, nor are required to make (other than to bring any Employee Plan into compliance with ERISA or the Code) any changes in benefits that would substantially increase the costs of maintaining any of the Employee Plans. (i)__No Employee Plan currently maintained by the Company is or was a "multiple employer plan" (within the meaning of section 413 of the Code). (j)__To the Knowledge of the Company, with respect to any Employee Plan, there has not been any act or omission by the Company or any of its ERISA Affiliates that has given rise to or could be reasonably expected to give rise to any fines, penalties or related charges under ERISA or the Code for which the Company could be liable, except as would not be reasonably likely to have a Material Adverse Effect. (k)__The present value of all accrued benefits (whether or not vested) under each Employee Plan subject to Title IV of ERISA do not exceed, and will not exceed, as of the Closing Date, the then current fair market value of the assets of such Employee Plan (for purposes of determining the present value of accrued benefits under the Employee Plans, the actuarial assumptions and methods used under each Employee Plan for the most recent plan valuation date shall be used). Section 2.14. Employees and Labor Relations. Except as set forth on Schedule 2.14, there is (i) no unfair labor practice, grievance or labor arbitration proceeding pending, or to the Best Knowledge of the Company, threatened against the Company relating to the Business, (ii) no strike, labor dispute, slowdown, work stoppage, picketing, boycott or other labor dispute pending or threatened against the Business (other than grievances in the ordinary course) and (iii) no dispute as to union representational status with regard to the employees of the Business. To the Best Knowledge of the Company, the Company is in compliance in all material respects with all applicable Laws regarding employment, employment practices, terms and conditions of employment, the retention of independent contractors and leased employees, equal employment opportunity, collective bargaining, wages, hours and withholding. 23 Section 2.15. TAXES. (a)__Except as set forth in Schedule 2.15, (i) the Company and each Subsidiary has timely filed (taking into account extensions) all Tax Returns (as hereinafter defined) required to have been filed under applicable Laws and such Tax Returns were true, correct and complete in all material respects; (ii) all Taxes (as hereinafter defined), including, without limitation, any Taxes shown to be due on such Tax Returns, that are required to have been paid have been timely paid; (iii) no deficiency for any amount of Tax has been asserted or assessed in writing by a taxing authority against the Company or any Subsidiary that has not been settled or paid; (iv) neither the Company nor any Subsidiary has requested an extension of time in which to file a Tax Return otherwise currently due and neither the Company nor any Subsidiary has consented to extend the time in which any Tax may be assessed or collected by any taxing authority; (v) there are no audits, examinations, lawsuits or other administrative or judicial proceedings relating to Taxes of the Company or any Subsidiary and neither the Company nor any Subsidiary has been notified in writing by any taxing authority (x) that any issues have been raised with respect to any Tax Return, or (y) that they intend to perform an audit with respect to any Tax Return; and (vi) the Company and each Subsidiary have complied with all applicable Laws relating to withholding and payment of Taxes. (b)__Schedule 2.15 lists all income Tax Returns filed with respect to the Company and any Subsidiaries for tax periods ended on or after December 31, 1996. (c)__Except as set forth in Schedule 2.15, (i) the Company is not and has never been a party to any tax sharing, tax indemnity or similar agreements; (ii) the Company has no liability for Taxes of any other Person under Treasury regulations section 1.1502-6, as a transferee or successor, by contract or otherwise; and (iii) there are no requests for rulings or determinations relating to the Company pending with any taxing authority; (d)__Neither the Company nor any of its Subsidiaries (A) is treated as or has made an election to be treated as a "consenting corporation" under Section 341(f) of the Code or (B) is, or has been, a "personal holding company" within the meaning of Section 542 of the Code; (e)__Except as set forth in Schedule 2.15, neither the Company nor any of its Subsidiaries has agreed to or has been required to make any adjustments or changes to its accounting methods that would give rise to an adjustment pursuant to Section 481 of the Code either on, before or after the Closing Date, and the Internal Revenue Service has not proposed in writing any such adjustments or changes in the accounting methods of the Company or any of its Subsidiaries; (f)__Except as set forth in Schedule 2.15, no written claim has ever been made by any taxing authority in a jurisdiction in which the Company and its Subsidiaries do not file Tax Returns that the Company is or may be subject to taxation by that jurisdiction; and 24 (g)__For the purposes hereof, (i) the term "TAX" means any income, gross receipts, profits, capital stock, franchise, unemployment, property, ad valorem, stamp, excise, occupation, sales, use, transfer, import, export, value added, employment, social security or other similar tax imposed by any domestic or foreign taxing authority, and any interest or penalties in respect of the foregoing; and (ii) the term "TAX RETURN" means any report, statement, declaration or document with respect to Taxes. Section 2.16. MATERIAL CONTRACTS. (a)__Schedule 2.16 lists the following notes, leases, licenses, contracts or binding agreements (as used in this Section 2.16, "CONTRACTS") to which the Company, as of the date of this Agreement, is a party or is bound: (i)each contract relating to the borrowing of money, guarantee of obligations of others or to the mortgaging, pledging or otherwise placing an encumbrance or Lien on any asset or group of assets of the Company or any Subsidiary in each case in an amount exceeding $50,000 and which is not reflected in the December Balance Sheet; (ii)each contract that materially limits the freedom of the Company to compete in its lines of business or with any person or in any geographical area or otherwise to conduct its business as presently conducted; (iii)each collective bargaining or union contract; (iv)each contract for the purchase of capital equipment, materials or supplies, except those contracts terminable without material penalty on 30 or fewer days' notice and those involving payment of less than $100,000 per year; (v)each contract for the acquisition or disposition of material assets, other than in the ordinary course of business; (vi)each contract relating to the leasing of material real property; (vii)each contract with any health maintenance organization or other healthcare provider involving the annual payment of at least $25,000; (viii)each contract which involves the receipt or payment of more than $50,000 per year, except for customer purchase orders and raw material purchase orders and those contracts terminable without material penalty on 30 or fewer days' notice; (ix)each employment agreement or other contract for the employment of any officer, director or employee or other person, whether on a full- time, part-time, consulting or other basis; (x)each contract or agreement with any current officer, director, "affiliate" or "associate" (as such terms are defined in Rule 12b-2 under the 25 Securities Exchange Act of 1934, as amended) of the Company not otherwise listed in response to any other clause of this Section 2.16(a); (xi)each contract for the lending or investing of funds of the Company (other than funds under Employee Plans); and (xii)each other contract not in the ordinary course of business which could reasonably be determined to be material to the Business. (b)__The Company is not (and, to the Knowledge of the Company, nor is any other party) in breach or default in any material respect, and no event has occurred which would constitute (with or without due notice or lapse of time or both) a breach or default in any material respect, or give rise to any right of termination, cancellation or acceleration, under any contract listed in Schedule 2.16 and each such contract is a valid and binding obligation of the Company and, to the Knowledge of the Company, each other party thereto, enforceable against such persons in accordance with its terms. Section 2.17. Suppliers, Distributors and Customers. Schedule 2.17 sets forth a listing of each of the entities which are, calculated on the basis of payments made by or payments received by the Company for the 12-month period ended December 31, 1999, (A) the five largest (by dollar volume) raw material suppliers of the Company, (B) the five largest (by dollar volume) distributors of the Company and (C) the five largest (by dollar volume) customers of the Company. Except as set forth in Schedule 2.17, since the date of the December Balance Sheet, no supplier, distributor or customer that is listed in Schedule 2.17 has stopped or materially decreased, or has given notice to the Company that it will stop or materially decrease, the rate of business done with the Company, whether as a result of the transactions contemplated hereby or otherwise (it being understood that no assurance is given that any such supplier, distributor or customer will continue to do business with the Company or that the rate of such business will not decrease). The Company believes that its relationship with the customers listed in Schedule 2.17 is generally good and, except as indicated in Schedule 2.17, that no material disagreement or dispute exists between the Company and any such customer. Section 2.18. Assets Necessary to Business. The assets and properties of the Company include all of the assets and properties necessary for the conduct of the Business in substantially the manner as it is currently conducted. Section 2.19. Tangible Personal Property. Except (a) with respect to the Owned Real Property and the Leased Real Property (which are the subject of Section 2.20), (b) as listed or described on Schedule 2.19, and (c) for assets sold in the ordinary course of business since the date of the December Balance Sheet, the Company owns all material tangible assets reflected on the December Balance Sheet as owned by the Company or thereafter purchased or acquired by the Company, free and clear of all Liens except for (i) Liens that are listed or described on Schedule 2.19, (ii) mechanics', carriers', workers', repairmen's, landlord's, warehouse or other Liens arising or incurred in the ordinary course of business of the Business securing amounts that are not delinquent, (iii) Liens for taxes, assessments and other similar governmental charges which are not due and 26 payable or which may thereafter be paid without penalty or which are listed or described on any Schedule, and (iv) Liens that arise under zoning, land use and other similar Laws and other imperfections of title or encumbrances, if any, which do not materially affect the marketability of the property subject thereto and do not materially impair the use of the property subject thereto in the Business as presently conducted. (The items referred to in clauses (i) through (iv) of the immediately preceding sentence being "PERMITTED LIENS.") Section 2.20. Real Property. Schedule 2.20 lists all real property owned in fee by the Company (the "OWNED REAL PROPERTY") or leased by the Company (the "LEASED REAL PROPERTY" and, together with the Owned Real Property, collectively, the "REAL PROPERTY"). (a)__The Company has title to the Owned Real Property and title to the leasehold interests in the Leased Real Property (subject to the terms of the applicable leases, subleases and related instruments governing its interests therein, as listed on Schedule 2.20), free and clear of all Liens other than (i) Liens listed or described on Schedule 2.20, (ii) Permitted Liens, and (iii) easements, covenants, rights-of-way and other encumbrances or restrictions, whether recorded or referred to in an applicable lease or unrecorded, which do not materially impair the continued use of the property subject thereto in the Business as presently conducted. The leases and subleases related to the Leased Real Property are valid and subsisting leases or subleases which are in full force and effect. (b)__With respect to the Real Property, except as set forth on Schedule 2.20: (i)no portion of any Owned Real Property and, to the Best Knowledge of the Company, no portion of any Leased Real Property is subject to any pending condemnation proceeding or proceeding by any public or quasi- public authority and there is no threatened condemnation or proceeding with respect thereto; (ii)the Company is the owner and holder of all the leasehold estates purported to be granted by the leases relating to the Leased Real Property and each lease is in full force and effect and constitutes a valid and binding obligation of the Company; (iii)no notice of any increase in the assessed valuation of any Owned Real Property and no notice of any contemplated special assessment in respect of any Owned Real Property has been received by the Company since December 31, 1999; (iv)there are no contracts, written or oral, to which the Company is a party, granting to any party or parties the right of use or occupancy of any portion of the parcels of the Real Property; and (v)there are no parties (other than the Company or their lessees disclosed pursuant to paragraph (iii) above) in possession of the Real Property. 27 Section 2.21. Insurance. Schedule 2.21 sets forth a true and complete list of all policies of insurance held or maintained by the Company (specifying the insurer, amount of coverage, type of insurance, policy number and any pending claims thereunder). All such insurance policies are in full force and effect and the Company has not received any notice of cancellation with respect thereto. The Company has maintained such or similar types of insurance coverage at all times during the last three years. With respect to each policy of insurance listed on Schedule 2.21: (i) all premiums due through the date of this Agreement with respect thereto are currently paid and are not subject to adjustment other than as a result of normal policy year audits, and, to the Knowledge of the Company, no Person is in default in any respect with respect to its obligations under any such policy, and to the Best Knowledge of the Company, no basis exists that would give any insurer under any such policy the right to cancel or unilaterally reduce or limit the stated coverages contained in such policy or relieve the insurer under any such policy of its obligations to satisfy in full any claim thereunder and (ii) the Company has not received any notice that such policy has been or shall be canceled or terminated or will not be renewed on substantially the same terms as are now in effect or the premium on such policy shall be materially increased on the renewal thereof. Section 2.22. Related Party Transactions. (a)__Except for (i) arrangements or relationships contemplated by this Agreement, (ii) arrangements or relationships between the Company and Shareholder Parties who are or were employees, officers or directors of the Company pursuant to contracts, agreements and Employee Plans referred to herein (including the Stock Option Plan) or listed in any of the Schedules hereto, (iii) service by employees in such capacity in the ordinary course of business, (iv) service by certain of the Shareholder Parties as officers of the Company and/or on the Board of Directors of the Company, and (v) indebtedness to the Company of Michael (and Susanne) deMilt in the principal amount of $42,359.47 (the "DEMILT RECEIVABLE") and of William Herdrich in the principal amount of $206,025.33 (the "HERDRICH RECEIVABLE"), no employee, officer, director or Shareholder or any person controlled by, controlling or under common control with, or related by blood or marriage to, any employee, officer, director or Shareholder (each an "AFFILIATE") has engaged or been involved in any material business arrangement or relationship with the Company within the last 12 months and none of employees, officers, directors or Shareholders of the Company or any of their respective Affiliates owns any material asset, tangible or intangible, which is used in the business of the Company. (b)__Except as set forth on Schedule 2.22, there are no vehicles, boats, aircraft, apartments or other residential or recreational properties or facilities owned or operated by the Company for executive, administrative or sales purposes or any social club memberships owned or paid for by the Company or any Subsidiary. Section 2.23. Accounts and Notes Receivable. All accounts receivable and notes receivable owing to the Company represent valid and enforceable claims arising from bona fide transactions made in the ordinary course of business. Except as set forth on Schedule 2.23, as of May 1, 2000, there is (i) no account debtor or note debtor delinquent 28 in its payment by more than 90 days, (ii) no account debtor or note debtor has refused or, to the Knowledge of the Company, threatened to refuse to pay its obligations for any reason, (iii) to the Knowledge of the Company, no account debtor or note debtor that is insolvent or bankrupt and (iv) no account receivable or note receivable pledged to any third party by the Company. Section 2.24. Disclosure. The representations and warranties of the Company and the Shareholder Parties contained in this Agreement, including the Schedules hereto, do not contain any untrue statement of a material fact or omit to state any material fact necessary to make any such representation or warranty, in light of the circumstances under which it is made, not misleading. Section 2.25. Brokers. No broker, investment banker, financial advisor or other person, other than Schroder & Co. Inc. ("SCHRODERS"), the fees and expenses of which are the obligation of the Company and, subject to the provisions of Section 8.12, will be paid by the Company, is entitled to any broker's, finder's, financial advisor's or other similar fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of any Shareholder Party. ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE PARENT AND MERGER SUB Subject to the terms and conditions of this Agreement, the Parent and Merger Sub, jointly and separately, represent and warrant to the Company and the Shareholders as follows: Section 3.1. Organization and Authority of Parent and Merger Sub. Each of the Parent and Merger Sub is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all necessary corporate power and authority to execute and deliver this Agreement and the Related Documents and to consummate the transactions contemplated by this Agreement and the Related Documents. The execution, delivery and performance of this Agreement and the Related Documents by each of the Parent and Merger Sub and the consummation by each of the Parent and Merger Sub of the transactions contemplated by this Agreement and the Related Documents have been duly authorized by all necessary corporate action on the part of the Parent and Merger Sub and no other corporate proceedings on the part of either the Parent or Merger Sub are necessary to authorize this Agreement or the Related Documents or for the Parent or Merger Sub to consummate the transactions contemplated by this Agreement or the Related Documents. This Agreement and the Related Documents have been duly and validly executed and delivered by each of the Parent and Merger Sub and constitute legal, valid and binding obligations of each of the Parent and Merger Sub, enforceable against each of the Parent and Merger Sub in accordance with their respective terms, except as enforcement thereof may be limited by applicable bankruptcy, insolvency, or other similar laws affecting the enforcement of creditors rights in general, moratorium laws or general principles of equity. 29 Section 3.2. No Violation. Neither the execution, delivery or performance of this Agreement or the Related Documents by the Parent or Merger Sub nor the consummation by the Parent or Merger Sub of the transactions contemplated by this Agreement or the Related Documents nor compliance by the Parent or Merger Sub with any of the provisions hereof or thereof will (i) conflict with or result in any breach of any provision of the certificates of incorporation or by-laws (or similar governing instrument or organizational document) of the Parent or Merger Sub, (ii) result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation or acceleration) under, any of the terms, conditions or provisions of any note, lease, license contract or agreement to which the Parent or Merger Sub is a party or by which the Parent or Merger Sub may be bound or (iii) violate any order, writ, injunction, decree, statute, treaty, rule or regulation applicable to the Parent or Merger Sub. Section 3.3. Consents and Approvals. No filing with, and no permit, authorization, consent or approval of, any Governmental Entity, is necessary for execution, delivery or performance by the Parent or Merger Sub of this Agreement, except (i) for the filing of the Certificate of Merger, (ii) for the applicable requirements of the HSR Act, or (iii) as a result of facts or circumstances particular to the Shareholder Parties or the Company. Section 3.4. Investment. Parent is acquiring the capital stock of the Surviving Corporation solely for the purpose of investment and not with a view to any resale or distribution thereof in violation of any applicable securities Law. Section 3.5. Legal Proceedings. There is no suit, claim, action, proceeding or investigation pending, or to the knowledge of the Parent or Merger Sub, threatened against the Parent or Merger Sub affecting, or which may affect, the Parent's or Merger Sub's ability to perform its obligations under this Agreement. Section 3.6. Solvency, Etc. Neither the Parent nor Merger Sub is, and after giving effect to the financing obligations undertaken in connection with this Agreement and to the transactions contemplated hereby, including the payment of the Aggregate Merger Consideration, none of the Parent, Merger Sub or the Surviving Corporation will be, insolvent, left with unreasonably small or impaired capital or indebted beyond its ability to pay such debts as they mature. Section 3.7. Brokers. No broker, investment banker, financial advisor or other person is entitled to any broker's, finder's, financial advisor's or other similar fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Parent or Merger Sub or any Subsidiary or Affiliate of the Parent or Merger Sub. 30 ARTICLE IV COVENANTS Section 4.1. CONDUCT OF THE BUSINESS. (a)__During the period from the date hereof to the Closing, the Company shall, except as otherwise expressly provided in this Agreement, operate only in the ordinary course of business, consistent with past custom and practice (including the collection of receivables, the payment of payables and the maintenance of supplies). The Company shall use all commercially reasonable efforts to preserve intact the present organization of the Business, keep available the services of officers and directors, and preserve the Company's relationships with customers, suppliers and others having significant business dealings with the Business. (b)__During the period from the date hereof to the Closing, the Company shall use commercially reasonable efforts to maintain the assets of the Company in customary repair, order and condition, maintain insurance reasonably comparable to that in effect on the date of the December Balance Sheet, replace in accordance with past practice inoperable or worn out assets with assets of comparable quality and, in the event of a casualty, loss or damage to any of such assets or properties prior to the Closing Date for which the Company is insured or the condemnation of any assets or properties, either repair or replace such assets or property or, if the Parent or Merger Sub agrees, cause the Company or such Subsidiary to retain such insurance or condemnation proceeds. (c)__The Company will promptly inform the Parent in writing of any variances from the representations and warranties contained in Section 2 of which the Company becomes aware between the date hereof and the Closing Date. (d)__Without limiting the generality of the foregoing, and except as set forth in Schedule 4.1 or as otherwise expressly provided in this Agreement, from the date of this Agreement to the Closing, the Company shall not, without the prior written consent of the Parent (which consent shall not be unreasonably withheld or delayed): (i)amend or propose to amend its certificate of incorporation or by- laws (or other similar organizational documents); (ii)except for the issuance of Company Common Stock upon the exercise of options granted under the Stock Option Plan, issue, deliver, pledge, encumber or sell, or authorize or propose the issuance, delivery, pledge, encumbrance or sale of any shares of capital stock of the Company, or any securities convertible into, or exchangeable for, any such shares, or rights, warrants or options to acquire any such shares of capital stock or other convertible securities or propose any change in its equity capitalization; (iii)other than as contemplated in Section 4.4, (w) make any payment directly or indirectly to any Shareholder other than in such Shareholder's capacity 31 as an employee, officer or director of the Company, (x) declare, set aside, make or pay any dividend or other distribution in respect of its capital stock, (y) redeem, repurchase or otherwise acquire any of its securities, other than as contemplated in Section 4.4, or (z) split, combine or reclassify any of its capital stock; (iv)acquire or dispose of any material assets, securities, rights or other properties or interests unless in the ordinary course of business consistent with past practice; (v)other than in the ordinary course of business or to fund any payment to be made as contemplated in Section 4.4, (x) incur or assume any material indebtedness or issue or sell any debt securities or rights to acquire any debt securities, (y) assume, guarantee, endorse or otherwise become liable for the obligations of any other person or (z) make any loans, advances or capital contributions to, or investments in, any other person; (vi)enter into, adopt, amend or terminate any employee benefit plan, increase the compensation or fringe benefits of any officer or employee of the Company or pay any benefit not required by any existing plan, except in the ordinary course of business or as may be required by applicable law or existing contractual arrangements or as necessary to carry out this Agreement (including Section 4.4); (vii)enter into or amend any employment or severance agreement with any employee, adopt, enter into or amend any collective bargaining agreement, except in the ordinary course of business or as may be required by applicable Law or existing contractual arrangements; (viii)enter into, amend, accelerate or terminate any contract except in the ordinary course of business or as contemplated by this Agreement; (ix)engage in any transactions with Affiliates other than in the ordinary course of business; (x)make any Tax elections or settle or compromise any Tax Liability; (xi)other than as contemplated under this Agreement and the Related Documents, create, establish or acquire any Subsidiary or acquire or agree to acquire by merging or consolidating with, or by purchasing any material portion of the capital stock or assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof; (xii)delay or postpone the payment of accounts payable and other obligations and liabilities or accelerate the collection of accounts receivable, other than in the ordinary course of business consistent with past custom and practice; or 32 (xiii)other than in the ordinary course of business, take or cause to be taken any action which is designed or intended to have the effect of discouraging customers, employees, suppliers, lessors and other associates of the Company from maintaining the same business relationships with the Company after the date of this Agreement as were maintained with the Company prior to the date of this Agreement. Section 4.2. Access to Information by Parent. (a)__Prior to the Closing, the Company shall, upon reasonable notice, afford to the officers, employees, accountants, counsel and other representatives of the Parent (i) reasonable access during normal business hours to executive personnel of the Company and to all properties, books, records (including tax returns filed and those in preparation) of the Company relating to the Business, and furnish promptly to the Parent all information concerning the business, properties and personnel of the Business as the Parent may reasonably request, (ii) full access to the audit work papers and other records of the independent certified public accountants of the Company, (iii) the opportunity to review such financial and operating data and other information with respect to the Business as the Parent or Merger Sub may from time to time reasonably request and (iv) access to the customers of the Company under mutually agreeable circumstances. All such information shall be kept confidential pursuant to the Confidentiality Agreement dated September 29, 1999 between the Parent and the Company (the "CONFIDENTIALITY AGREEMENT"). (b)__Notwithstanding the foregoing, neither the Company nor the Shareholder Parties shall be required to disclose, or cause the disclosure of, any information with respect to which the Company or the Shareholder Parties, as the case may be, reasonably believe may violate applicable law. Section 4.3. REASONABLE EFFORTS. (a)__Upon the terms and subject to the conditions of this Agreement (including, without limitation, Section 4.3(c)), each of the parties hereto shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement as promptly as practicable, including, but not limited to, (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the transactions contemplated by this Agreement and the taking of such actions as are necessary to obtain any requisite approvals, consents, orders, exemptions or waivers by any Governmental Entity, including making the filings pursuant to the HSR Act within 10 business days of the date hereof, and (ii) using all reasonable efforts to cause the satisfaction of all conditions to Closing. Each party shall promptly consult with the other with respect to, provide any necessary information with respect to and as reasonably necessary provide the other (or its counsel) copies of, all filings made by such party with any Governmental Entity or any other information supplied by such party to a Governmental Entity in connection with this Agreement and the transactions contemplated by this Agreement. 33 (b)__Each party hereto shall promptly inform the others of any communication from any Government Entity regarding any of the transactions contemplated by this Agreement. If any party receives a request for additional information or documentary material from any such Government Entity with respect to the transactions contemplated by this Agreement, then such party will endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. (c)__Parent, the Company and the Shareholder Parties agree and acknowledge that they each shall use their commercially reasonable efforts to obtain any required clearances under any antitrust law (including, without limitation, the HSR Act) and the Parent will pay and be responsible for all filing fees payable in connection therewith. The Parent, the Company and the Shareholder Parties shall promptly take all commercially reasonable actions to avoid and eliminate any impediment, and to secure any required clearances, under any antitrust law to the consummation of the transactions contemplated hereby, it being understood that such action shall not include any sale or divestiture of any business or assets. The Parent, the Company and the Shareholder Parties shall use commercially reasonable efforts to prevent the entry of any order or injunction that would prevent or delay the consummation of the transactions contemplated hereby and, if any such order or injunction is issued, take all steps, including the appeal thereof, the posting of a bond or the steps contemplated by the immediately preceding sentence, to vacate, modify or suspend such injunction as to permit the consummation of the transactions contemplated hereby as promptly as practicable. Section 4.4. Stock Options. Each outstanding stock option pursuant to the Stock Option Plan (each, a "STOCK OPTION") shall be cancelled prior to Closing, and each holder of any Stock Option, whether or not then vested or exercisable, shall be paid by the Company for each such Stock Option an amount in cash (less any required tax withholdings) determined by multiplying (i) the excess, if any, of the Fair Market Value Per Share (as hereinafter defined) over the applicable exercise price of such Stock Option by (ii) the number of shares of Company Common Stock subject to such Stock Option. For the purposes hereof, "FAIR MARKET VALUE PER SHARE" shall mean the fair value of such shares, on a fully diluted basis, as determined by the Board of Directors as contemplated by the Stock Option Plan. Section 4.5. Collective Bargaining Agreement. Parent agrees that, as of the Closing Date, it shall cause the Surviving Corporation to (i) recognize USWA Local 6967, as the exclusive collective bargaining representative of the Surviving Corporation's bargaining unit employees, and (ii) honor in accordance with its terms the collective bargaining agreement dated April 21, 1997 between USWA Local 6967 and the Company. Section 4.6. Access to Records by Shareholders. Parent and Company agree that, from and after the Closing for a period of six years, the Shareholder Party Representatives and their attorneys, agents, accountants and designees may have such 34 reasonable access to the books and records of the Business and such right to make copies thereof as the Shareholder Party Representatives and their attorneys, agents, accountants and designees may reasonably deem necessary. Any such examination shall be performed at the place where such books and records are regularly maintained, shall be conducted during normal business hours, and shall be done in a reasonable manner so as to minimize the disruption and interference with normal business activities. Such access shall extend only insofar as such books and records relate to the Shareholders or events arising on or prior to the Closing Date with respect to the Business or the Shareholders. Parent shall ensure that no such books and records are destroyed for a period of at least six years from the Closing Date. After such six-year period, at least 90 calendar days' prior written notice to such effect shall be given to the Shareholder Representatives, who shall be given an opportunity during such 90-day period, at their own cost and expense, to remove and retain all or any part of such books and records they may select. Section 4.7. CERTAIN LIMITATIONS ON REPRESENTATIONS AND WARRANTIES. (a)__Each of the parties hereby acknowledges and agrees that no party has relied or will rely upon any document or written or oral information previously furnished to or discovered by it or its representatives, including, without limitation, the Information Memorandum prepared by the Company and Schroders, as financial advisor to the Company, any information provided to the Parent or Merger Sub pursuant to any presentation by or on behalf of the Shareholder Parties, the Company or Schroders in connection with the transactions contemplated herein or any financial projection or forecast delivered to the Parent or Merger Sub with respect to the revenues or profitability which may arise from the operation of the Business after the Closing Date, other than this Agreement (including the Schedules and Exhibits hereto). With respect to any projection or forecast delivered by or on behalf of Schroders, the Company or any of the Shareholder Parties to the Parent or Merger Sub, each of the Parent and Merger Sub acknowledges that (A) there are uncertainties inherent in attempting to make such projections and forecasts, (B) it is familiar with such uncertainties, and (C) Parent is acquiring the Business as a going concern, and has prepared its own financial forecasts for the Business. (b)__Except as expressly stated herein, in the Related Documents and in the Schedules hereto, neither the Company nor any of the Shareholder Parties makes any representations or warranties with respect to the Business, the Company Common Stock, or the transactions contemplated hereby or the events giving rise thereto. (c)__Notwithstanding any other provision hereof, (i) the inclusion of an item in a Schedule will not be deemed an admission that such item represents a material exception or fact, event or circumstance or that such item would result in a Material Adverse Effect and (ii) the representations and warranties made in this Agreement by the Shareholder Parties and the Company will be deemed for all purposes to be qualified by the disclosures made in the Schedules, it being understood that any disclosure made on a Schedule shall be deemed to be included on any other Schedule if such disclosure could reasonably be expected to be pertinent to the representation and warranty to which such other Schedule relates. 35 Section 4.8. Supplemental Schedules. The Shareholder Parties may (but will not be required to), from time to time prior to two days before the Closing, by notice in accordance with this Agreement, supplement or amend any Schedule, including, without limitation, one or more supplements or amendments to correct any matter which would otherwise constitute a breach of any representation, warranty or covenant herein contained; PROVIDED, HOWEVER, that subject to the following sentence, no such supplement or amendment will affect the rights or obligations of the parties to this Agreement. Notwithstanding any other provision hereof, no such supplement or amendment will affect the Parent's or Merger Sub's right not to complete the transactions contemplated hereby in the circumstances specified in Section 5.2(a) or otherwise under this Agreement, but, if the Closing occurs, any such supplement or amendment of any Schedule will be effective to cure and correct for all purposes (including, without limitation, Article VII) any breach of any representation, warranty or covenant which would have existed by reason of the Shareholder Parties' not having made such supplement or amendment. Section 4.9. Guarantee by Parent. The Parent hereby unconditionally guarantees the full and timely performance by Merger Sub, and from and after the Effective Time by the Surviving Corporation, of all of Merger Sub's and Surviving Corporation's respective obligations under this Agreement (including the obligation to pay the Per Share Merger Consideration) and hereby irrevocably waives all suretyship defenses (other than satisfaction and payment) that otherwise may now or in the future be available to the Parent in connection therewith. Without limiting the generality or effect of the foregoing, the Parent will cause Merger Sub, and from and after the Effective Time, the Surviving Corporation, (a) to perform in accordance with the terms of this Agreement all covenants to be performed by Merger Sub or the Surviving Corporation, as the case may be, and (b) to have cash on hand and other capital resources sufficient to discharge on a timely basis all of Merger Sub's and the Surviving Corporation's respective obligations hereunder. Section 4.10. Further Assurances. From time to time after the Closing, without additional consideration, the parties will execute and deliver such further instruments and take such other action as may be necessary to make effective the transactions contemplated by this Agreement. Section 4.11. Certain Tax Matters. (A)__PREPARATION OF FINAL SEPARATE RETURN YEAR INCOME AND FRANCHISE TAX RETURNS, ETC. (i)Parent and the Shareholder Parties agree that, for U.S. federal income tax purposes, the current taxable year of the Company shall end on and as of the Closing Date (the "FINAL SEPARATE RETURN YEAR"). In the event, as to any state or local jurisdiction, an election or other action is required to be taken to terminate the Company's taxable year on the Closing Date, Parent shall (or shall cause the Company to) make such election or take such action. 36 (ii)Parent shall cause the Company to prepare and shall timely file (A) all applicable Income and Franchise Tax Returns for the Company's Final Separate Return Year ("FINAL SEPARATE RETURN YEAR TAX RETURNS") and (B) as to any state or local jurisdiction that will not permit a Tax Return filed on the basis that the taxable year terminated on the Closing Date, all applicable Income and Franchise Tax Returns ("STRADDLE YEAR TAX RETURNS") for the taxable year of the Company that includes but does not end on the Closing Date (a "STRADDLE YEAR"), on a basis consistent with past practices of the Company and applicable law. At least forty-five (45) days prior to the due date for filing any such Tax Return (and prior to the filing of such Tax Return), Parent shall provide drafts of such Tax Returns as prepared by Parent and Company to the Shareholder Party Representatives for their review and comment. Further, in the case of any Straddle Year Tax Return, Parent shall set forth its proposed allocation of the total Taxes shown as due on the draft Tax Return for the Straddle Year between the period ended on the Closing Date (for which the Shareholders shall be accountable) and the period following the Closing Date (for which Parent and the Company shall be accountable). Such allocation shall be a specific allocation, so as to reflect, as nearly as possible, the outcome had the Company's taxable year in fact ended on the Closing Date. If the Shareholder Party Representatives, within fifteen (15) days after delivery of such draft Tax Returns (and proposed allocation, if any), notify Parent that they object to any items in such draft Tax Returns (or proposed allocation), the parties shall proceed in good faith to resolve the disputed items and, if they are unable to do so within ten (10) days of such notification, the disputed items shall be resolved by the Accounting Firm prior to the due date for filing such Tax Returns. Upon resolution of all disputed items, the affected Tax Returns shall be finalized on a basis reflecting such resolution, which shall be conclusive as between the parties. The costs, fees and expenses of the Accounting Firm shall be borne equally by Parent, on the one hand, and the Shareholders, on the other. (iii)If the sum of (A) the Income and Franchise Taxes for all Final Separate Return Years as reflected on the Final Separate Return Year Tax Returns net of any estimated tax payments and other payments made within, or credits attributable to, the period ended on the Closing Date in respect thereof, plus (B) the portion of any Income Taxes and Franchise Taxes in respect of Straddle Years as reflected on the Straddle Year Tax Returns determined to be allocable to the Shareholders net of any estimated tax payments and other payments made within, or credits attributable to, the period ended on the Closing Date in respect of Straddle Year Income and Franchise Taxes (such sum being referred to herein as the "ACTUAL UNPAID AMOUNT") is greater than the Estimated Tax Amount, such excess shall be treated as a decrease in Aggregate Merger Consideration and shall be paid out of the Escrow Holdback Account pursuant to Section 1.10(a), or, if no funds are available to be paid from such Account, then the Shareholders shall pay to Parent the amount by which the Actual Unpaid Amount exceeds the Estimated Tax Amount. If the Estimated Tax Amount exceeds the Actual Unpaid Amount (including by such amount as the Actual Unpaid Amount may be less than zero), then, pursuant to section 4.11(e), Parent shall pay to the Shareholders the amount by which the Estimated Tax Amount exceeds the Actual Unpaid Amount. Such payment by the Shareholders or Parent, as the case may be, shall be made within 15 days after the timely filing of the last of the affected Tax Returns. In all events, the Shareholders shall have no responsibility for payment and remittal of the Taxes due with 37 the Final Separate Return Year Tax Returns and the Straddle Year Tax Returns, which, to the contrary, solely shall be the responsibility of Parent and the Company, which Parent hereby covenants to discharge or cause to be discharged on a timely basis. (iv)Parent acknowledges and agrees that payments to employees of the Company pursuant to Section 4.4 are expected to give rise to significant deductions in respect of the Company's Final Separate Return Year (and the portion of the period ended on the Closing Date with respect to any Straddle Years) and that, without limitation of paragraph (b) below, the Shareholders specifically bargained for the payment to them, as additional Purchase Price, of the amount of any refunds or setoffs of Taxes, as and when received (or, in the case of any setoffs, realized) by the Company subsequent to the Closing Date, attributable to a carryback of any net operating loss from the Final Separate Return Year (or any Straddle Year), relating to any such deductions allowable to the Company in respect of the exercise or cancellation of employee stock options and any other severance or change in control payments to existing or former employees of the Company (collectively, "COMPENSATION DEDUCTIONS") or relating to any other deductions reportable in the Final Separate Return Year Tax Returns, or in the case of any Straddle Year Tax Returns, properly allocable to the portion of the period ended on the Closing Date. Parent agrees, at the Shareholder's expense, to cause the Company to file such Tax Returns and refund claims on a timely basis as may be necessary to effectuate the foregoing, and, within 15 days after such refund is received (or such setoff is realized), pursuant to Section 4.11(e), shall make, or cause the Company to make, the payments to the Shareholders contemplated hereby; PROVIDED, that the Company shall withhold payment from any Shareholder not otherwise a Shareholder Party that has not agreed in writing to incur the obligations described in the second paragraph of Section 4.11(b), requiring the return to the Company of any amounts previously remitted to such party in respect of Refunds, if the Tax item to which the Refund relates is successfully challenged (a "NONRESPONSIVE SHAREHOLDER"), it being understood that any Shareholder who properly signs and submits a Letter of Transmittal as contemplated in the Escrow Agreement shall not be treated as a Nonresponsive Shareholder and shall agree to incur such obligation. Any such Tax Returns and refund claims shall be subject to review and comment by the Shareholder Party Representatives as set forth in subparagraph (ii) above. Consistent with the foregoing, without duplication of Section 4.11(a)(iii) above, Parent further agrees to promptly remit to the Shareholders the amount of any reduction in Straddle Year Taxes, and other state and local Income and Franchise Taxes, for which Parent otherwise is accountable attributable solely to the actual use of the Compensation Deductions to offset income of the Company, the Parent or any Affiliate thereof, assuming that all other items of loss or expense are used to offset such income prior to the use of such Compensation Deductions. (b)__REMITTAL OF REFUNDS TO SHAREHOLDERS. Any refunds of Taxes (over and above those addressed in clause (iv) of subparagraph (a) above) of the Company (including interest paid thereon) for any taxable period (or portion thereof) ended on or before the Closing Date resulting from income, losses, deductions, credits or other tax items generated by the Company during taxable periods (or portions thereof) ended on or prior to the Closing Date and any amount that would have been so refunded but for its application by way of setoff or credit ("REFUND") that has not already been paid or 38 credited to the Shareholders shall be for the account of the Shareholders and, pursuant to Section 4.11(e), Parent shall cause the Company to remit to the Shareholders the amount of any and all such Refunds within 15 days after the Refund is received (or otherwise applied); PROVIDED, that the Company may withhold payment to any Nonresponsive Shareholder. Parent shall cause the Company to file for and obtain any and all such Refunds that it shall have identified to be available (neither Parent nor the Company being under an affirmative obligation to identify any Refunds, however). In the event any refund, setoff, credit or reduction in respect of Taxes as to which the Company has made any payments to a Shareholder pursuant to this subparagraph (b) or subparagraph (a)(iv) above (a "COVERED REFUND") shall be challenged successfully by any taxing authority upon audit, each Shareholder so having previously received any payments in respect thereof shall be obligated to repay the Company the amounts previously remitted to him in respect thereof; PROVIDED, HOWEVER, that such Shareholder (through the Shareholder Party Representatives) shall have been given the opportunity to contest the taxing authority's proposed denial of the Covered Refund pursuant to Section 7.8 hereof, treating such Shareholder as an "Indemnifying Party" and the Company as an "Indemnified Party" for such purpose. (c)__AMENDED RETURNS. Unless otherwise required by law, neither Parent nor the Company shall file any amended Tax Return relating to a taxable period of the Company ended on or before, or that includes, the Closing Date without the prior written consent of the Shareholder Party Representatives. (d)__PREPARATION OF 1999 INCOME AND FRANCHISE TAX RETURNS, ETC. With respect to any federal, state and local Income and Franchise Tax Returns of the Company for the year ended December 31, 1999 that have not been filed by the Closing Date ("POST-CLOSING 1999 RETURNS"), Parent shall cause the Company to prepare and shall timely file such Tax Returns, on a basis consistent with past practices of the Company and applicable law. At least forty-five (45) days prior to the final due date (with extensions) for filing any such Post-Closing 1999 Returns (and prior to the filing of any such Post-Closing 1999 Returns) Parent shall provide drafts of such Tax Returns as prepared by Parent and Company to the Shareholder Party Representatives for their review and comment. If the Shareholder Party Representatives, within fifteen (15) days after delivery of such draft Tax Returns, notify Parent that they object to any items in such draft Tax Returns, the parties shall proceed in good faith to resolve the disputed items and, if they are unable to do so within ten (10) days of such notification, the disputed items shall be resolved by the Accounting Firm prior to such due date for filing such Tax Returns. Upon resolution of all disputed items, the affected Post- Closing 1999 Returns shall be finalized on a basis reflecting such resolution, which shall be conclusive as between the parties. To the extent that the sum of (i) estimated taxes paid by the Company with respect to the Post-Closing 1999 Returns, (ii) payments made by the Company upon filing any extensions relating to such Tax Returns (excluding any such payments made after the Closing Date) and (iii) amounts of overpayments from prior tax years applied to such Tax Returns (the sum of (i), (ii) and (iii), the "CREDITED PREPAYMENTS") exceeds the actual Tax liability for the taxable year as reflected on the Post-Closing 1999 Returns (the "ACTUAL TAX LIABILITY"), pursuant to Section 4.11(e), 39 Parent shall pay such excess to the Shareholders within fifteen (15) days after the timely filing of the last of such Tax Returns. If the Actual Tax Liability exceeds the Credited Prepayments, such excess shall be a set off against any amounts owed by Parent to the Shareholders pursuant to Section 4.11(a)(iii) or (iv), and, to the extent not so used, shall be treated as a decrease in Aggregate Merger Consideration and shall be paid out of the Escrow Holdback Account pursuant to Section 1.10(a), or, if no funds are available to be paid from such Account, the Shareholders shall pay such excess to Parent within fifteen (15) days after the timely filing of the last of the Separate Return Year Tax Returns and Straddle Year Tax Returns. In all events, the Shareholders shall have no responsibility for payment and remittal of the Taxes due with the Post-Closing 1999 Returns, which, to the contrary, solely shall be the responsibility of Parent and the Company, which Parent hereby covenants to discharge or cause to be discharged on a timely basis. The costs, fees and expenses of the Accounting Firm shall be borne equally by Parent, on the one hand, and the Shareholders, on the other. (e)__PAYMENTS BY PARENT OR THE COMPANY. Any payments to be made by Parent or the Company to the Shareholders pursuant to this Section 4.11 shall be made directly to the Escrow Agent, as contemplated in Section 2(d) of the Escrow Agreement, for the purpose of remittal to the Shareholders pursuant to Section 8 of the Escrow Agreement. (f)__FILING EXPENSES. All out-of-pocket expenses incurred in filing (i) Final Separate Return Year Tax Returns, (ii) Post-Closing 1999 Returns and (iii) any tax return, claim for a refund or other tax filing for tax benefits or tax refunds to be paid to the Shareholders, and one- half of the out-of-pocket expenses incurred in filing Straddle Year Tax Returns, shall be borne by the Shareholders. Section 4.12. Termination of Affiliate Transactions. The Company and each Shareholder Party agrees that, effective as of the Closing and without any further action by the Company, the Surviving Corporation or any Shareholder, the Company and the Surviving Corporation shall be released from any and all obligations and liabilities under agreements, business arrangements or other relationships with such Shareholder Party and its Affiliates entered into prior to the Closing, except for obligations and liabilities under this Agreement and the Related Documents, obligations to the Shareholder Parties in their capacities as employees (including under Benefit Plans) or as officers or directors (including indemnification obligations), obligations to Shareholder Parties under the agreements contemplated by Sections 5.2(p) and 5.2(q) and arrangements set forth on Schedule 4.12, and all such agreements, business arrangements and other relationships so released shall have no further force or effect. Section 4.13. Notice of Prospective Breach. Each party shall promptly notify the other parties in writing (it being understood that notification to or from the Shareholder Parties shall be accomplished by notification to or from the Shareholder Party Representatives) upon the occurrence, or failure to occur, of any event, which occurrence or failure to occur would be reasonably likely to cause (i) any representation or warranty contained in this Agreement to be untrue or inaccurate at any time from the date of this Agreement to the Closing as if such representation and warranty were made at such time 40 or (ii) any failure of any party hereto to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it under this Agreement. Section 4.14. Release. (a)__Each Shareholder Party hereby irrevocably releases and forever discharges the Company (for the benefit of the Surviving Corporation and its shareholders), effective from and after the Effective Time, of and from all manner of actions, causes of action, suits, rights, debts, dues, sums of money, accounts, bonds, bills, covenants, contracts, controversies, omissions, promises, variances, trespasses, damages, liabilities, judgments, executions, claims and demands whatsoever, in law or in equity which against the Company such Shareholder Party ever had, now has or which it hereafter can, shall or may have, whether known or unknown, suspected or unsuspected, matured or unmatured, fixed or contingent, for, upon or by reason of any matter or cause arising at any time on or prior to the Closing (unless occasioned by fraud or willful misconduct or gross negligence); PROVIDED, HOWEVER, that the foregoing provisions shall not apply to obligations and liabilities under this Agreement and the Related Documents, obligations to the Shareholder Parties in their capacities as employees (including under Benefit Plans) or as officers or directors (including indemnification obligations), obligations to Shareholder Parties under the agreements contemplated by Sections 5.2(p) and 5.2(q) and arrangements set forth on Schedule 4.12. (b)__Each Shareholder Party specifically represents and warrants to the Company that such Shareholder Party has not assigned any claim to be released as set forth in paragraph (a) above, and agrees to indemnify and hold harmless the Company from and against any and all losses or damages arising from or in any way related to (i) any such assignment, and (ii) any action by any third party arising from or in any way related to the relationship among such Shareholder Party and the Company which is the subject of this Section 4.14. Section 4.15. Disclosure of Information. From and after the Closing, the Shareholder Parties shall not use or disclose to any Person any Confidential Information for any reason or purpose whatsoever, nor shall they make use of any of the Confidential Information for their own purposes or for the benefit of any Person except the Company, the Parent, Merger Sub, the Surviving Corporation or any Affiliate thereof; PROVIDED, HOWEVER, that the foregoing shall not be deemed to restrict or prohibit use or disclosure of any Confidential Information as required by law or judicial process or in connection with the enforcement, or otherwise to give effect to, the provisions of this Agreement and the Related Documents. As used in this Agreement, "CONFIDENTIAL INFORMATION" means Intellectual Property of the Company and all information of a proprietary or confidential nature relating to the Company or the Business, excluding any information that (i) as of the Closing Date, is in the public domain, (ii) after the Closing Date enters the public domain through no wrongful action or inaction on the part of any Shareholder Party or (iii) is communication to a Shareholder Party by a third party under no duty of secrecy or confidentiality to the Company or the Parent. Section 4.16. Negotiation with Others; Disposition and Voting of Securities. 41 (a)__During the period from the date hereof to the earlier of the Closing or the termination of this Agreement pursuant to Section 6.1 (the "EXCLUSIVE PERIOD"), the Company and the Shareholder Parties shall deal exclusively with the Parent and Merger Sub regarding the acquisition of or investment in the Company, whether by way of merger, purchase of capital stock, purchase of assets or otherwise (a "POTENTIAL TRANSACTION") and, without the prior written consent of the Parent, neither the Company nor any Shareholder Party shall, directly or indirectly, (i) solicit, initiate discussions with or engage in negotiations with any Person (whether such negotiations are initiated by the Company or any Shareholder Party or otherwise), other than the Parent and its Affiliates or a party designated by the Parent, relating to a Potential Transaction, (ii) provide information or documentation with respect to the Company, any Subsidiary or the Business to any Person, other than the Parent and its Affiliates or a party designated by the Parent, relating to a Potential Transaction or (iii) enter into an agreement with any Person, other than the Parent, Merger Sub or any Affiliate thereof, providing for any Potential Transaction. The Company and the Shareholder Parties represent to the Parent that they are not legally bound to negotiate or enter into a Potential Transaction with any person other than the Parent. (b)__During the Exclusive Period, each Shareholder Party shall, as to himself, herself or itself, and the Company, except as contemplated by this Agreement, shall: (i)without the prior written consent of the Parent, refrain from transferring, selling or assigning to any Person, or agreeing in any manner to transfer, sell or assign to any Person, or pledge, encumber, deposit in a voting trust or grant a proxy (other than for purposes of effectuating the transactions contemplated by this Agreement and the Related Documents and other than with respect to the granting of any proxy to, or entering into any voting trust with, any Principal Shareholder or in the normal course of corporate governance which is not intended to impede or delay the transactions contemplated by this Agreement) with respect to, any securities of the Company presently or hereafter owned or controlled by him, her or it; and (ii)vote the shares of capital stock of the Company presently or hereafter owned or controlled by such Shareholder Party or the Company (or any other security which has voting rights) against any merger (other than the Merger), consolidation, sale of assets, reorganization, recapitalization, liquidation or winding up of the Company at every meeting of shareholders of the Company called therefor and at every adjournment thereof (or withhold consent in writing to any such action proposed to be taken by written consent in lieu of a meeting). (c)__The parties recognize and acknowledge that a breach by the Company or any Shareholder Party of this Section 4.16 will cause irreparable and material loss and damage to the Parent and Merger Sub as to which they will not have an adequate remedy at law or in damages. Accordingly, each party acknowledges and agrees that the issuance of an injunction or other equitable remedy is an appropriate remedy for any such breach. 42 Section 4.17. Use of Name. From and after the Closing, the Shareholder Parties shall not allege or assert that the name "Poly-Seal", "Moldcraft", "Supply-Line" or any substantially similar variants thereof (the "NAMES") have not become distinctive and unique and none of the Shareholder Parties shall allege or assert that the Names have not obtained secondary meaning, identifying the Names or any variant thereof as the source of goods associated with such Name. The Shareholder Parties undertake in this Agreement as a matter of contract to refrain, from and after the Closing, from, (A) owning any interest, directly or indirectly, in, or becoming associated with or otherwise lending any aid or support to, any Person (other than the Surviving Corporation, the Parent or any Affiliate thereof) using the Names or (B) performing any service or offering any goods identified with the Names in a manner that is likely to cause confusion in the minds of ordinary purchasers, except on behalf of the Surviving Corporation, the Parent of any Affiliate thereof. In connection therewith, it is agreed that the undertaking under this Section 4.17 is of a special and unique nature, the loss of which cannot be adequately compensated for in damages by an action at law, and that the breach or threatened breach of the provisions of this Section 4.17 would cause the Surviving Corporation, the Parent and their Affiliates irreparable harm. In the event of any such breach, the Surviving Corporation and the Parent shall be entitled, as a matter of right, to injunctive and other equitable relief without waiving any other rights which they may have to damages or otherwise. ARTICLE V CONDITIONS Section 5.1. Conditions to Each Party's Obligations. The respective obligation of each party to effect the transactions contemplated by this Agreement shall be subject to the satisfaction or waiver of the following conditions: (a)__No statute, rule, regulation, order, decree or injunction shall have been enacted, entered, promulgated or enforced by a Governmental Entity which prohibits the consummation of the transactions contemplated by this Agreement shall be in effect. (b)__All material consents and approvals of any Governmental Entity required for the consummation of the transactions contemplated by this Agreement shall have been obtained. Section 5.2. Conditions to Obligations of the Parent and Merger Sub. The obligation of the Parent and Merger Sub to effect the transactions contemplated by this Agreement are further subject to the satisfaction or waiver of the following conditions: (a)__The representations and warranties of the Company and the Shareholder Parties in this Agreement shall be true and correct in all material respects (except for those qualified by materiality which shall be true and correct in all respects) at and as of the Closing Date with the same effect as though such representations and warranties had been made at and as of such time, provided that any representations and 43 warranties that speak as of a specific date or time need only be true and correct in all material respects, or, in the case of any such representation or warranty qualified by materiality, in all respects, as of such specific date or time. (b)__The Shareholder Parties and the Company shall have performed in all material respects all obligations required to be performed by them under this Agreement at or prior to the Closing, including, without limitation, approval of the Merger by the Shareholders as required under the DGCL. (c)__The Parent and Merger Sub shall have received certificates signed by the Shareholder Party Representatives (on behalf of the Shareholder Parties) and by the President and the Chief Financial Officer of the Company to the effects set forth in clauses (a) and (b) above. (d)__Parent shall have obtained on terms and conditions satisfactory to the Parent in its sole discretion all of the financing needed in order to consummate the transactions contemplated hereby. (e)__The Shareholder Parties and the Company shall have delivered or caused to be delivered an opinion of counsel in form and substance substantially as set forth in Exhibit B, addressed to the Parent and Merger Sub and dated as of the Closing Date. (f)__No Material Adverse Effect shall have occurred between the date hereof and the Closing Date. (g)__Each of the Parent, Surviving Corporation, the Shareholder Party Representatives and the Escrow Agent shall have executed and delivered the Escrow Agreement. (h)__The Parent and the Surviving Corporation shall have received the written resignations, effective the Effective Time, of Michael C. Larned (as Chairman of the Board of Directors of the Company), Michael D. deMilt (as Secretary and Director of the Company), Pieter V.C. Litchfield (as Treasurer and Director of the Company), William Herdrich (as President and Director of the Company) and Robert Weilminster (as Vice-President Finance and Administration of the Company). (i)__The Parent and Merger Sub shall have received duly executed letter agreements in form and substance reasonably satisfactory to the Parent, Merger Sub and their counsel, providing for (i) the payment and cancellation of all of the Indebtedness and Capital Lease Obligations as of the Closing Date and (ii) the release of any Lien on the assets of the Company and its Subsidiaries relating thereto. (j)__The Parent and Merger Sub shall have received certified copies of the resolutions of the Company's board of directors and the Shareholders, approving the Merger, this Agreement, all other documents contemplated hereby and the consummation of the transactions contemplated hereby. 44 (k)__The Company shall have delivered to the Parent and Merger Sub an officer's certificate certifying the Company's Charter, the Company's By-laws and the incumbency of each officer executing on behalf of the Company this Agreement or any agreement or instrument contemplated hereby. (l)__The Company shall have delivered to the Parent and Merger Sub certificates of the Secretaries of State of the States of Delaware and Maryland, dated as of the Closing Date (or as close thereto as reasonably practicable), certifying as to the good standing and non- delinquent status of the Company. (m)__The Company shall have delivered to the Parent a certificate, dated as of the Closing Date, certifying that the Company is not, and has not in the last five years been, a United States real property holding corporation as defined in Section 897(c)(2) of the Code. (n)__The Company shall have delivered to the Parent and Merger Sub a copy of the HSR Act pre-merger notification form filed by the Trust U/W/O Edward S. Litchfield in connection with the consummation of the transactions contemplated hereby. (o)__The Shareholder Party Representatives shall have delivered to the Parent the Schedules contemplated by Sections 1.7(ix), 1.7(xi), 1.7(xiv) and 1.7(xvii). (p)__Parent and Merger Sub shall have received counterparts of the Employment Agreements between the Surviving Corporation and each of Robert C. Weilminster and Dale Finley, each dated as of the Closing Date, duly executed by each of Robert C. Weilminster and Dale Finley. (q)__Parent and Merger Sub shall have received counterparts of the Consulting and Non-Competition Agreement between the Surviving Corporation and William J. Herdrich, dated as of the Closing Date (the "CONSULTING AND NON-COMPETITION AGREEMENT"), duly executed by William J. Herdrich. (r)__The Parent shall have received evidence reasonably satisfactory to the Parent of the repayment in full (including accrued interest) of the deMilt Receivable and the Herdrich Receivable. Section 5.3. Conditions to Obligations of the Shareholder Parties and the Company. The obligation of the Company to effect the transactions contemplated by this Agreement are further subject to the Company's and the Shareholder Parties' satisfaction or waiver of the following conditions: (a)__The representations and warranties of the Parent and Merger Sub in this Agreement shall be true and correct in all material respects at and as of the Closing Date with the same effect as though such representations and warranties had been made at and as of such time, other than representations and warranties that speak as of a specific date or time (which need only be true and correct in all material respects as of such date or time). 45 (b)__Each of the Parent and Merger Sub shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing. (c)__The Company and the Shareholder Party Representatives shall have received a certificate from the President of each of the Parent and Merger Sub to the effects set forth in clauses (a) and (b) above. (d)__The Parent and Merger Sub shall have delivered or caused to be delivered an opinion of counsel in form and substance substantially as set forth in Exhibit C, addressed to the Company and to the Shareholder Party Representatives (as representatives of the Shareholder Parties). (e)__Each of the Parent, Merger Sub and the Escrow Agent shall have executed and delivered the Escrow Agreement. (f)__The Shareholder Party Representatives and the Company shall have received certified copies of the resolutions of the Parent and Merger Sub's board of directors, approving the Merger, this Agreement, all other documents contemplated hereby and the consummation of the transactions contemplated hereby. (g)__The Parent and Merger Subs shall have delivered to the Shareholder Party Representatives and the Company an officer's certificate certifying the Parent and Merger Sub's Charter, the Parent and Merger Sub's By-laws and the incumbency of each officer executing this Agreement or any agreement or instrument contemplated hereby. (h)__The Parent and Merger Subs shall have delivered to the Shareholder Party Representatives and the Company certificates of the Secretary of State of the State of Delaware, dated as of the Closing Date (or as close thereto as reasonably practicable), certifying as to the good standing and non-delinquent status of such entity. Section 5.4. Waiver. Any of the foregoing conditions in this Article V may be waived or the time for performance thereof extended (i) insofar as it is a condition to the obligations of the Parent and Merger Sub, by the Parent and Merger Sub at their option and (ii) insofar as it is a condition to the obligations of the Company and the Shareholder Parties, by the Company and the Shareholder Party Representatives at their option. ARTICLE VI TERMINATION AND AMENDMENT Section 6.1. Termination. This Agreement may be terminated at any time prior to the Closing by: (a)__mutual written consent of the Shareholder Party Representatives, the Company, the Parent and Merger Sub; 46 (b)__the Company or the Shareholder Party Representatives if the Closing shall not have occurred on or before May 9, 2000 (unless the failure to consummate the Closing shall be due to the action or failure to act of the Company or the Shareholder Parties); (c)__Parent if the Closing shall not have occurred on or before May 31, 2000 or such other date mutually agreed upon in writing by the parties hereto (unless the failure to consummate the Closing shall be due to the action or failure to act of Parent and/or Merger Sub); (d)__the Company or the Shareholder Party Representatives or the Parent if any court of competent jurisdiction or other competent Governmental Entity shall have issued a statute, rule, regulation, order, decree or injunction or taken any other action permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement and such statute, rule, regulation, order, decree or injunction or other action shall have become final and nonappealable; (e)__the Parent, if there has been a breach by the Company or any Shareholder Party of any representation, warranty, covenant or agreement set forth in this Agreement on the part of the Company or any Shareholder Party which breach is material and which such party fails to cure within 10 Business Days after notice thereof is given by the Parent (except no cure period shall be provided for a breach which by its nature cannot be cured), or within 30 Business Days after notice thereof is given if such party, using its reasonable best efforts, cannot cure said breach within said 10-Business Day period; or (f)__the Company or the Shareholder Party Representatives, if there has been a breach by the Parent or Merger Sub of any representation, warranty, covenant or agreement set forth in this Agreement on the part of the Parent or Merger Sub which breach is material and which such party fails to cure within 10 Business Days after notice thereof is given by the Company or the Shareholder Party Representatives (except no cure period shall be provided for a breach which by its nature cannot be cured), or within 30 Business Days after notice thereof is given if such party, using its reasonable best efforts, cannot cure said breach within said 10-Business Day period. Section 6.2. Effect of Termination. In the event of the termination and abandonment of this Agreement pursuant to Section 6.1 hereof, this Agreement shall forthwith become void and have no effect, without any liability on the part of any party hereto or its affiliates (including trustees, directors, officers or stockholders); PROVIDED, HOWEVER, that the Confidentiality Agreement shall survive in accordance with the terms and conditions provided for therein and this Section 6.2 and Article VIII shall survive the termination of this Agreement; and PROVIDED, FURTHER, that the liability of any party for any breach by such party of the representations, warranties, covenants or agreements of such party set forth in this Agreement occurring prior to the termination of this Agreement shall survive the termination of this Agreement and, in addition, in the event of any action for breach of contract in the event of a termination of this Agreement, the 47 prevailing party shall be reimbursed by the other party to the action for reasonable attorneys' fees and expenses relating to such action. Section 6.3. Amendment. This Agreement may be amended or modified at any time by the parties hereto, but only by an instrument in writing signed on behalf of each of the Parent, Merger Sub, the Shareholder Party Representatives and the Company. ARTICLE VII SURVIVAL; INDEMNIFICATION Section 7.1. Survival Periods. All representations and warranties of the parties contained in Article II and Article III of this Agreement shall survive until the date which is sixteen months after the Closing Date, and, if notice of a claim (setting forth in reasonable detail the facts, circumstances and basis of the claim) is provided by such date, shall survive until the final resolution thereof, provided that: (i) the representations and warranties in Section 2.13 shall survive until the fourth anniversary of the date of the Closing Date; (ii) the representations and warranties contained in Section 2.15 shall survive the Closing Date until the date that is 30 days after the expiration of the statute of limitations, if any, applicable to the matters set forth therein; and (iii) the representations and warranties contained in Sections 2.1, 2.3, 2.4 and 2.25 shall survive the Closing Date without any time limit. The covenants and other agreements of the parties contained in this Agreement shall survive the Closing Date until they are otherwise terminated, whether by their terms or as a matter of applicable law. The date upon which any representation, warranty, covenant or other agreement contained herein shall terminate, if any, is referred to as the "SURVIVAL DATE", and the parties acknowledge that, in the event that a claim is made under this Article VII with respect to any representation, warranty, covenant or other agreement contained herein prior to the applicable Survival Date, such representation, warranty, covenant or other agreement shall survive until such time as such claim is resolved (whether hereunder, judicially or otherwise). Section 7.2. Indemnification. Subject to the other provisions of this Article VII, from and after the Closing: (a)__Each Shareholder Party agrees severally, and not jointly (except to the limited extent contemplated below), to indemnify and hold harmless the Parent, Merger Sub, the Surviving Corporation and their respective Affiliates, trustees, employees, officers, directors, agents and other representatives (collectively, the "BUYER GROUP") from and against any and all costs or expenses (including reasonable attorneys' and accountant's and other professional fees), judgments, fines, penalties, losses, shortages, claims, assessments, Taxes incurred as a result of the receipt of indemnification payments, Liability and damages, net of (I) any Tax benefits actually realized as of the time the indemnification payment is made due to the events giving rise thereto and (II) the net present value of any future Tax benefits to be realized (as reasonably estimated by Parent in good faith) due to the events giving rise to an indemnification payment hereunder (collectively, "DAMAGES") it may suffer, sustain or incur as a result of the untruth, inaccuracy or breach of any representation or warranty of 48 such Shareholder Party contained in Sections 2.1(a), 2.2(a), 2.3(c) and 2.5(a); PROVIDED, HOWEVER, that notwithstanding the foregoing, each of the Trust U/W/O Edward S. Litchfield and The Philip A. Litchfield Trust U/A/D 12/30/96 (but not any of the other Shareholder Parties) shall be jointly and severally liable to the Buyer Group in respect of Damages the Buyer Group may suffer, sustain or incur as a result of any untruth, inaccuracy or breach of any such representation or warranty by either of such trusts (but not as to any other Shareholder Party). (b)__The Shareholder Parties, jointly and severally, shall indemnify and hold harmless the Buyer Group from and against any Damages incurred by them that arise out of (i) any inaccuracy or breach of any representation or warranty contained herein made by the Company or the Shareholder Parties (other than the representations and warranties contained in Sections 2.1(a), 2.2(a), 2.3(c) and 2.5(a)) or in the certificate delivered pursuant to Section 5.2(c), (ii) failure to perform any covenant or obligation made by the Shareholder Parties or the Company (but not the Surviving Corporation) in this Agreement; or (iii) any amounts to which any Dissenting Shareholder shall become entitled on account of the exercise of such Dissenting Shareholders' rights under Section 262 of the DGCL to the extent such amounts exceed the amounts to which such Dissenting Shareholder otherwise would be entitled pursuant to the terms and provisions of this Agreement. (c)__The Parent and the Surviving Corporation, jointly and severally, shall indemnify and hold harmless the Shareholders and their Affiliates, trustees, beneficiaries, agents (including the Shareholder Party Representatives) and other representatives, from and against any Damages actually incurred by them that arise out of (i) any breach of any representation or warranty herein made by the Parent or Merger Sub; or (ii) failure to perform any covenant or obligation made by the Parent or Merger Sub in this Agreement. (d)__Michael deMilt, severally, shall indemnify the Buyer Group for any amount owed and not received by the Company in respect of the deMilt Receivable. William Herdrich, severally, shall indemnify the Buyer Group for any amount owed and not received by the Company in respect of the Herdrich Receivable. Section 7.3. CERTAIN LIMITATIONS. (a)__Notwithstanding any provision to the contrary contained in this Agreement, none of the Shareholder Parties shall be obligated to indemnify the Buyer Group for any Damages, other than any Damages as to which the substantive basis for the claim relates to Tax ("Tax Damages"), pursuant to Section 7.2(b)(i) unless and until the dollar amount of all Damages (excluding Tax Damages) for which the Shareholder Parties, but for this Section 7.3(a) (but after giving effect to Sections 7.3(c) and 7.3(d)), would otherwise be liable pursuant to Section 7.2(b)(i) equals in the aggregate $680,000, and then only for the excess over such amount; PROVIDED, HOWEVER, that in no event shall the limitation set forth in this Section 7.3(a) apply to (i) the rights of the Buyer Group under Section 7.2(b)(i) with respect to the representations and warranties set forth in 49 Sections 2.1(b), 2.3(a), 2.3(b), 2.4(a) and 2.25 or (ii) any willful breach by the Company or the Shareholder Parties of any representation or warranty contained in Article II. (b)__Notwithstanding any provision to the contrary contained in this Agreement, the maximum aggregate amount of Damages (including Tax Damages) payable pursuant to Section 7.2(b)(i) by the Shareholder Parties shall not exceed $11,600,000; PROVIDED, HOWEVER, that in no event shall the limitation set forth in this Section 7.3(b) apply to (i) the rights of the Buyer Group under Section 7.2(b)(i) with respect to the representations and warranties set forth in Sections 2.1(b), 2.3(a), 2.3(b), 2.4(a) and 2.25 or (ii) any willful breach by the Company or the Shareholder Parties of any representation or warranty contained in Article II. (c)__Notwithstanding any provision to the contrary contained in this Agreement, Damages shall not include and no Person will have any obligation under Section 7.2(a) or 7.2(b) in respect of any lost profits or consequential, incidental, indirect, special or punitive damages. (d)__Notwithstanding any provision to the contrary contained in this Agreement, in no event shall any Shareholder Party have any obligation under Section 7.2(a) and Section 7.2(b) for any Damages to the extent such Damages have been taken into account in determining any adjustment to the Aggregate Merger Consideration under Article I (including any payment pursuant to Section 4.11). (e)__Notwithstanding any provision to the contrary contained in this Agreement, the maximum liability of each of Pieter V. C. Litchfield, Michael C. Larned, Michael deMilt, William Herdrich and Robert Weilminster for any Damages pursuant to Section 7.2(b) shall in no event exceed in any particular case such individual's Applicable Percentage of the total amount of Damages for which indemnification may be claimed pursuant to such Section (after giving effect to Sections 7.3(a), 7.3(b), 7.3(c), 7.3(d) and 7.3(f)). (f)__Notwithstanding any provision to the contrary contained in this Agreement, no Indemnifying Parties shall have any obligation to indemnify any Indemnified Party under this ARTICLE VII for any Damages that are actually recovered by the Indemnified Party from any third party (including any amounts recovered under insurance policies), and in the event of a recovery by such Indemnified Party subsequent to an indemnification payment being made the Indemnified Party shall reimburse the Indemnifying Party to the extent of such amount actually recovered. (g)__ Notwithstanding any provision to the contrary contained in this Agreement, in no event shall any claim be made pursuant to Section 7.2(c) based on any breach of any representation or warranty contained in Section 3.7 unless the Parent or the Surviving Corporation shall be the subject of a bankruptcy proceeding under the United States Bankruptcy Code, as amended. 50 Section 7.4. CLAIMS. (a)__The persons to whom indemnification is provided hereunder are referred to herein as the "INDEMNIFIED PARTIES" and the persons providing indemnification are referred to as the "INDEMNIFYING PARTIES." (b)__The parties shall cooperate with each other with respect to resolving any claim or liability which one party may be obligated to provide indemnification hereunder, including making all reasonable efforts to mitigate or resolve any claim or liability. If the Indemnified Party does not make such efforts, the Indemnifying Party shall not be obligated to provide indemnification for any Damages that could reasonably be expected to have been avoided if such party had made such efforts. (c)__If an Indemnified Party intends to seek indemnification pursuant to this Article VII, such Indemnified Party shall promptly notify the Indemnifying Party in writing of such claim. The Indemnified Party will provide the Indemnifying Party with prompt notice of any third party claim in respect of which indemnification is sought. The failure to provide either such notice (PROVIDED that it is given within the survival period provided for in Section 7.1) will not affect any rights hereunder except to the extent the Indemnifying Party is materially prejudiced thereby. Any such notice shall set forth in reasonable detail the facts, circumstances and basis of the claim. (d)__Any obligation of any Shareholder Party to indemnify the Buyer Group (other than on account of any inaccuracy or breach of any representation or warranty contained in Sections 2.1(a), 2.2(a), 2.3(c) and 2.5(a)) shall be satisfied (i) first, in cash, from the Escrow Holdback Account, and the Shareholder Party Representatives and the Parent shall execute joint written instructions to the Escrow Agent directing the Escrow Agent to make payment to the Surviving Corporation or the appropriate member of the Buyer Group and (ii) second, in cash, from the Shareholder Parties liable therefor by payment to the Surviving Corporation or the appropriate member of the Buyer Group. Any obligation of any Shareholder Party to indemnify the Buyer Group on account of any inaccuracy or breach of any representation or warranty contained in Section 2.1(a), 2.2(a), 2.3(c) or 2.5(a) shall be satisfied, in cash, from the Shareholder Party or the Shareholder Parties liable therefor. (e)__If such claim involves a claim by a third party (other than with respect to Taxes) (a "THIRD PARTY CLAIM") against the Indemnified Party, the Indemnifying Party may assume, through counsel of its own choosing and at its own expense, the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith (including by furnishing such information as the Indemnifying Party may reasonably request); PROVIDED, that the Indemnified Party may participate in such defense through counsel chosen by it, at its own expense; PROVIDED, HOWEVER, that the Indemnifying Parties shall not have the right to assume the defense of any Third Party Claim, notwithstanding the giving of such written acknowledgment, if (i) the claim seeks only an injunction or other equitable relief, (ii) the Indemnified Parties shall have been advised by counsel that there are one or more legal or equitable defenses available to 51 them which are different from or in addition to those available to the Indemnifying Parties, and, in the reasonable opinion of the Indemnified Parties, counsel for the Indemnifying Parties could not adequately represent the interests of the Indemnified Parties because such interests could be in conflict with those of the Indemnifying Parties, (iii) such action or proceeding involves, or could have a material effect on, any material matter beyond the scope of the indemnification obligation of the Indemnifying Parties or (iv) the Indemnifying Parties shall not have assumed the defense of the Third Party Claim in a timely fashion; PROVIDED, FURTHER, HOWEVER, that the Indemnifying Parties shall nonetheless be permitted to participate in (but not control) the defense of such Third Party Claim through counsel of their choosing, at their own expense. The Indemnified Party shall not pay or settle, or admit any liability with respect to, any claim without the Indemnifying Party's prior written consent, unless the Indemnifying Party is contesting a claim pursuant to the terms hereof but is failing to do so in good faith. The Indemnifying Party will not settle any claim without the Indemnified Party's prior written consent if such settlement would materially restrict the operation of the Business. If the Indemnifying Party is not contesting such claim in good faith, then the Indemnified Party may, upon at least 10 days' notice to the Indemnifying Party (unless the Indemnifying Party shall assume such settlement or defense within such 10 day period), conduct and control, through counsel of its own choosing and at the expense of the Indemnifying Party, the settlement or defense thereof, and the Indemnifying Party shall cooperate with it in connection therewith. The failure of the Indemnified Party to participate in, conduct or control such defense shall not relieve the Indemnifying Party of any obligation it may have hereunder. Section 7.5. Exclusive Remedy. Following the Closing, the provisions of this Article VII shall be the exclusive remedy for monetary damages with regard to the matters covered hereby, provided that nothing herein shall relieve any party from any liability for fraud. Section 7.6. Adjustments. To the extent permitted by law, the parties will treat all indemnity payments as adjustments to the Aggregate Merger Consideration and liabilities for indemnified Losses as having been in existence as of the Closing Date. Section 7.7. No Contribution from the Corporation or the Surviving Corporation. The obligations of the Shareholder Parties to indemnify the Buyer Group pursuant to the terms of this Agreement are primary obligations of the Shareholder Parties, subject to the limitations set forth herein. The Shareholder Parties hereby waive any rights to seek or obtain indemnification or contribution from the Company or the Surviving Corporation for Damages as a result of any breach by the Company of any representation, warranty or covenant contained in this Agreement. Section 7.8. Tax Claims. The Indemnified Party shall promptly notify the Indemnifying Party in writing of the commencement of any claim, audit, examination, or other proposed change or adjustment relating to Taxes of which it or any of its affiliates (including the Company) has been informed in writing by any taxing authority which may affect the liability of the Indemnifying Party under Section 7.2 (each, a "TAX CLAIM"). Such notice shall describe the asserted Tax Claim in reasonable detail and shall 52 include copies of any notices and other documents received from any taxing authority in respect of any such asserted Tax Claim. If notice of a Tax Claim is not given by the Indemnified Party to the Indemnifying Party within a sufficient period of time to allow the Indemnifying Party to effectively contest such Tax Claim, or in reasonable detail to apprise the Indemnifying Party of the nature of the Tax Claim or if the Indemnified Party otherwise fails to follow the requirements of this Section 7.8, the Indemnifying Party shall not be liable to the Indemnified Party, any of its affiliates or any of their respective officers, directors, employees, stockholders, agents or representatives and the amount of any indemnity payment pursuant to Section 7.2 shall be reduced, to the extent that the Indemnifying Party is harmed or its position is actually prejudiced as a result thereof. With respect to any Tax Claim (other than a Tax Claim relating to a Straddle Year), at the Indemnifying Party's election (to be made not later than 10 business days following the Indemnifying Party's receipt of a notification of a Tax Claim from the Indemnified Party), the Indemnifying Party shall have the sole right to represent the Company's interests in any Tax audit or administrative or court proceeding and to employ counsel of its choice, and, without limiting the foregoing, may in its sole discretion pursue or forego any and all administrative appeals, proceedings, hearings and conferences with any taxing authority with respect thereto, and may, in its sole discretion, either pay the Tax claimed and sue for a refund where applicable law permits such refund suits or contest the Tax Claim in any permissible manner PROVIDED, the Indemnifying Party shall not settle any claim without the Indemnified Party's prior written consent (not to be unreasonably withheld or delayed) if such settlement would materially affect the tax liability of the Company for any period commencing after the Closing Date. Subject to the foregoing, the Indemnifying Party may settle any issues and take any other actions in its discretion in connection with such audit or proceedings. The Indemnified Party may participate in such defense through counsel chosen by it, at its own expense. The Indemnified Party shall cooperate fully with the Indemnifying Party (including, but not limited to, by granting to the Indemnifying Party a power of attorney reasonably necessary to represent the Company in any such audit or proceeding and by causing the Company, at the Indemnifying Party's reasonable request, to take such requested actions in the defense against or compromise of any claim in any Tax audit or proceeding which the Indemnifying Party controls pursuant hereto), timely make available to the Indemnifying Party all data and other information reasonably requested by the Indemnifying Party in connection with such audit or proceedings, make employees available on a mutually convenient basis to provide additional information or explanation of any material provided hereunder or to testify at proceedings relating to such Tax Claim and facilitate the Indemnifying Party's participation in the contest of all Tax Claims. In no case shall the Indemnified Party or any of its affiliates or any of their respective officers, directors, employees, stockholders, agents or representatives settle or otherwise compromise any Tax Claim without the Indemnifying Party's prior written consent. With respect to a Tax Claim relating to a Straddle Year, Parent and the Shareholder Parties shall jointly control all proceedings and neither party shall settle or otherwise compromise such Tax Claim without the other party's prior written consent. 53 ARTICLE VIII MISCELLANEOUS Section 8.1. Shareholder Party Representatives. Following the signing of this Agreement, the Shareholder Party Representatives, acting individually or jointly, shall, in addition to being authorized to take any action which they are specifically authorized or permitted to take pursuant to this Agreement or the Escrow Agreement, be authorized to act for and on behalf of each of the Shareholders listed on Schedule 8.1 hereto (the "Principal Shareholders") with respect to this Agreement and the Escrow Agreement, including, without limitation, in all instances where the Principal Shareholders or any of them are required or permitted to give any approval or consent or to take any other action under this Agreement or the Escrow Agreement. The Parent, Merger Sub, the Company and the Surviving Corporation shall not be responsible for the proper application by the Shareholder Party Representatives of any payment, assignment, instrument or other delivery made to the Shareholder Party Representatives, including payment to the Shareholder Party Account, for the benefit of any of the Principal Shareholders or for the Shareholder Party Representatives' compliance with the terms and provisions of this Agreement or the Escrow Agreement and shall be entitled to rely conclusively upon the actions of the Shareholder Party Representatives as actions for and on behalf of the Principal Shareholders with respect to this Agreement and the Escrow Agreement. Notwithstanding anything to the contrary contained herein, neither of the Shareholder Party Representatives shall be required to take, or liable for failing to take, any action not expressly required to be taken by the Shareholder Party Representatives pursuant to the terms of this Agreement and in no event shall either of the Shareholder Party Representatives be personally responsible or liable for any obligation or liability hereunder or under the Escrow Agreement of any Shareholder or other party hereto or for the proper application by any Principal Shareholder or any other person of any payment, assignment, instrument or other delivery made by either of the Shareholder Party Representatives to such Principal Shareholder or other person. Wherever in this Agreement or in the Escrow Agreement the Shareholder Party Representatives are authorized or permitted to take any action, such action may be taken by either or both of them and the act of either of them shall be deemed to be the act of both, and the Parent, Merger Sub, Surviving Corporation and Escrow Agent shall be entitled to rely upon any such action accordingly. Section 8.2. Notices. All notices and other communications hereunder shall be in writing and shall be deemed given upon receipt by the parties at the following addresses (or at such other address for a party as shall be specified by like notice): 54 (a)__if to the Parent and/or Merger Sub, to: Berry Plastics Corporation 101 Oakley Street Evansville, Indiana 47710 Attention: James M. Kratochvil Telecopy: (812) 421-9604 with a copy to: O'Sullivan Graev & Karabell, LLP 30 Rockefeller Plaza New York, New York 10112 Attention: Michael J. O'Brien Telecopy: (212) 408-2420 (b)__if to the Company, to: Poly-Seal Corporation 1810 Portal Street Baltimore, Maryland 21224-6512 Attention: William Herdrich Telecopy: (410) 633-1928 with a copy to: the Shareholder Parties, as provided hereinbelow. (c)__if to the Shareholder Parties or Shareholder Party Representatives, to: Michael C. Larned as Shareholder Party Representative 178 Farms Road Stamford, Connecticut, 06903 Telecopy: (203) 986-1522 and/or Michael D. deMilt as Shareholder Party Representative 62 Woodmere Road Stamford, Connecticut, 06905 55 Telecopy: (203) 986-1522 with a copy to: Dewey Ballantine LLP 1301 Avenue of the Americas New York, New York 10019-6092 Attention: Brian J. Morris Telecopy: 212-259-6333 Section 8.3. Headings. The headings herein are inserted for convenience only and are not intended to be part of or to affect the meaning or interpretation of this Agreement. Section 8.4. Counterparts. This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same instrument. Any counterpart or other signature to this Agreement or any Related Document that is delivered by facsimile shall be deemed for all purposes as constituting good and valid execution and delivery by such party of this Agreement or such Related Document. Section 8.5. Entire Agreement; Assignment. (a)__This Agreement and the Exhibits (in their executed form) and Schedules hereto, the Related Documents and the documents and certificates delivered in connection herewith constitute the entire agreement among the parties hereto with respect to the subject matter hereof, and supersede all prior and contemporaneous agreements and understandings, both written and oral, including, without limitation, the Letter of Intent dated January 3, 2000, as amended, among the parties with respect to the subject matter hereof. (b)__This Agreement shall not be assigned by a party hereto without the prior written consent of the other parties hereto; PROVIDED, HOWEVER, that anything contained herein to the contrary notwithstanding, the Parent and Merger Sub may, without the prior written consent of any other parties, assign any or all of its rights and interests hereunder to any lender or lenders providing financing for the transactions contemplated hereby; PROVIDED, FURTHER, HOWEVER, that no such assignment shall relieve the Parent or Merger Sub from any of its obligations or liabilities hereunder. Section 8.6. Governing Law. This agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to any applicable conflicts of law principles. The parties hereto expressly and irrevocably (i) consent to the exclusive jurisdiction of the federal and state courts sitting in New York, (ii) agree not to bring any action related to this agreement or the transactions contemplated hereby in any other court (except to enforce the judgment of such courts), (iii) agree not to object to venue in such courts or to claim that such forum is inconvenient and (iv) agree that notice 56 or the service of process in any proceeding shall be properly served or delivered if delivered in the manner contemplated by Section 8.2 hereof. Final judgment by such courts shall be conclusive and may be enforced in any manner permitted by law. In addition, each of the parties hereto waives any right to trial by jury with respect to any claim or proceeding related to or arising out of this agreement or any of the transactions contemplated hereby. Section 8.7. Specific Performance. The parties hereto agree that if any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached, irreparable damage would occur, no adequate remedy at law would exist and damages would be difficult to determine, and that the parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy at law or equity. Section 8.8. Press Releases. Prior to the Closing, no party will issue or cause the publication of any press release or other public announcement with respect to this Agreement or the transactions contemplated hereby without the prior consent of the Shareholders and the Parent, which consent will not be unreasonably withheld; PROVIDED, HOWEVER, that nothing herein will prohibit any party from issuing or causing publication of any such press release or public announcement to the extent that such party determines such action to be required by Law or the rules of any national stock exchange applicable to it or its Affiliates, in which event the party making such determination will, if practicable in the circumstances, use reasonable efforts to allow the other parties reasonable time to comment on such release or announcement in advance of its issuance. Section 8.9. Binding Nature; No Third Party Beneficiaries. This Agreement shall be binding upon and inure solely to the benefit of each party hereto and their respective successors, assigns, trustees, heirs and estates, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other person or persons any rights, benefits or remedies of any nature whatsoever under or by reason of this Agreement. Section 8.10. Severability. This Agreement shall be deemed severable and the invalidity or unenforceability of any term or provision of this Agreement shall not affect the validity or enforceability of this Agreement or of any other term hereof, which shall remain in full force and effect. Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited or unenforceable in a given jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction. Section 8.11. CERTAIN INTERPRETIVE MATTERS AND DEFINITIONS. (a)__Unless the context otherwise requires, (i) all references to Sections, Schedules or Exhibits are to Sections, Schedules or Exhibits of or to this Agreement, (ii) each accounting term not otherwise defined in this Agreement has the meaning assigned to it in accordance with GAAP, (iii) "or" is disjunctive but not necessarily exclusive, (iv) 57 words in the singular include the plural and VICE VERSA, (v) all reference to "$" or dollar amounts will be to lawful currency of the United States of America, (vi) the phrase "KNOWLEDGE OF THE COMPANY" means the actual knowledge of the persons listed on Schedule 8.11 (the Parent, Merger Sub and the Surviving Corporation hereby expressly acknowledging that such persons are under no obligation to conduct any particular inquiry for purposes of any matter to which such phrase applies) and (vii) the phrase "BEST KNOWLEDGE OF THE COMPANY" means that knowledge that the individuals listed in Schedule 8.11 actually have or could have obtained after making such inquiry as reasonable business persons in the respective positions of such individuals would have made with respect to the matter to which such phrase applies. (b)__No provision of this Agreement will be interpreted in favor of, or against, any of the parties hereto by reason of the extent to which any such party or its counsel participated in the drafting thereof or by reason of the extent to which any such provision is inconsistent with any prior draft hereof or thereof. Section 8.12. Payment of Expenses. Whether or not the transactions contemplated by this Agreement shall be consummated, each party hereto shall pay its own fees and expenses incident to preparing for, entering into and carrying out this Agreement, except as expressly otherwise provided in this Agreement; PROVIDED, HOWEVER, that, in the event the Merger is consummated, all fees and expenses incurred by the Company and the Shareholders incident to preparing for, entering into and carrying out this Agreement (including, without limitation, all expenses of attorneys, accountants, tax advisors, brokers and investment bankers (including Schroders and Dewey Ballantine LLP)), shall, unless and to the extent such fees and expenses are taken into account in determining the Aggregate Adjustment Amount, be borne by the Shareholders and not the Parent, Merger Sub or the Surviving Corporation. To the extent not determinable at the Closing Date, any such fees and expenses which are the responsibility of the Shareholders shall be paid by the Shareholders, PRO RATA based on their respective Applicable Percentages, subsequent to the Closing Date (and, to the extent not so paid, may be withdrawn by the Surviving Company from the Escrow Account). Section 8.13. Remedies. Subject to the provisions of Sections 7.5 and 6.2, the parties shall each have and retain all other rights and remedies existing in their favor at law or equity, including, without limitation, any actions for specific performance and/or injunctive or other equitable relief (including, without limitation, the remedy of rescission) to enforce or prevent any violations of the provisions of this Agreement. Section 8.14. Independence of Covenants and Representations and Warranties. Subject to the provisions hereof (including Section 4.7), (i) all covenants hereunder shall be given independent effect so that if a certain action or condition constitutes a default under a certain covenant, the fact that such action or condition is permitted by another covenant shall not affect the occurrence of such default, unless expressly permitted under an exception to such initial covenant and, (ii) all representations and warranties hereunder shall be given independent effect so that if a particular representation or warranty proves to be incorrect or is breached, the fact that another representation or warranty concerning 58 the same or similar subject matter is correct or is not breached will not affect the incorrectness of or a breach of a representation and warranty hereunder. 59
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above. BERRY PLASTICS ACQUISITION CORPORATION By: /S/ JAMES M. KRATOCHVIL Name:James M. Kratochvil Title:Executive Vice President, Chief Financial Officer, Treasurer and Secretary BERRY PLASTICS CORPORATION By: /S/ JAMES M. KRATOCHVIL Name:James M. Kratochvil Title:Executive Vice President, Chief Financial Officer, Treasurer and Secretary POLY-SEAL CORPORATION By: /S/ MICHAEL C. LARNED Name:Michael C. Larned Title:Chairman of the Board THE SHAREHOLDER PARTIES TRUST U/W/O EDWARD S. LITCHFIELD By:/S/ PIETER V. C. LITCHFIELD Name:Pieter V. C. Litchfield Title:Trustee By:/S/ MICHAEL D. DEMILT Name:Michael D. deMilt Title:Trustee
60 THE PHILIP A. LITCHFIELD 1996 REVOCABLE TRUST U/A/D 12/30/96 By:/S/ PHILIP A. LITCHFIELD Name:Philip A. Litchfield Title:Trustee By:/S/ MICHAEL C. LARNED Name:Michael C. Larned Title:Trustee By:/S/ MICHAEL D. DEMILT Name:Michael D. deMilt Title:Trustee /S/ PIETER V. C. LITCHFIELD Pieter V. C. Litchfield /S/ MICHAEL C. LARNED Michael C. Larned /S/ MICHAEL D. DEMILT Michael D. deMilt /S/ WILLIAM HERDRICH William Herdrich /S/ ROBERT WEILMINSTER Robert Weilminster 61 THE SHAREHOLDER PARTY REPRESENTATIVES /S/ MICHAEL C. LARNED Michael C. Larned /S/ MICHAEL D. DEMILT Michael D. deMilt 62 EX-4.1 3 PREFERRED STOCK AND WARRANT PURCHASE AGREEMENT dated as of May 9, 2000 by and among BPC HOLDING CORPORATION, CHASE VENTURE CAPITAL ASSOCIATES, LLC, and THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY TABLE OF CONTENTS PAGE ARTICLE I DEFINED TERMS 1 Section 1.1. Defined Terms.......................................1 Section 1.2. Additional Terms....................................6 Section 1.3. Construction........................................7 ARTICLE II PURCHASE AND SALE TERMS 7 Section 2.1. Purchase and Sale; Purchase Price...................7 Section 2.2. The Merger..........................................7 Section 2.3. The Closing.........................................7 Section 2.4. Payment and Delivery................................7 Section 2.5. Restrictive Legend..................................8 Section 2.6. Use of Proceeds.....................................8 ARTICLE III CLOSING CONDITIONS 8 Section 3.1. Conditions of the Purchasers and the Company........8 Section 3.1.1. Execution of This Agreement and All Related Documents.........................................8 Section 3.1.2. Issuance and Purchase of the Units................8 Section 3.1.3. Merger Effective; Amended and Restated Certificate of Incorporation......................9 Section 3.1.4. Merger Consideration..............................9 Section 3.1.5. No Litigation, etc................................9 Section 3.1.6. Environmental Report..............................9 Section 3.1.7. Approvals, etc....................................9 Section 3.1.10. All Proceedings to be Satisfactory...............9 Section 3.1.11. Reasonable Satisfaction of Parties and Counsel...9 Section 3.2. Conditions of the Purchasers.......................10 Section 3.2.1. Representations and Warranties to be True and Correct; Certificate of Officer of the Company....10 Section 3.2.2. Supporting Documents.............................10 Section 3.2.3. Legal Opinion from Counsel for the Company.......11 Section 3.2.4. Delivery of SBA Forms............................11 Section 3.2.5. [Intentionally Omitted]..........................11 Section 3.2.6. Credit Facility..................................11 Section 3.2.7. The Merger.......................................11 Section 3.3. Conditions of the Company.........................12 Section 3.3.1. Representations and Warranties to be True and Correct..........................................12 Section 3.3.2. The Merger.......................................12 Section 3.4. Conditions of Northwestern.........................12 Section 3.4.1. Purchase Permitted By Applicable Law, etc........12 Section 3.4.2. Private Placement Number.........................12 (i) ARTICLE IV REPRESENTATIONS AND WARRANTIES 12 Section 4.1. Representations and Warranties of the Company......12 Section 4.1.1. Corporate Existence..............................13 Section 4.1.2. Power and Authority..............................13 Section 4.1.3. Enforceability, etc..............................13 Section 4.1.4. Capitalization...................................13 Section 4.1.5. Consents, Approvals and Non-Contravention........14 Section 4.1.6. Pro Forma Balance Sheet..........................15 Section 4.1.7. SEC Reports and Financial Statements.............15 Section 4.1.8. Material Adverse Change..........................15 Section 4.1.9. Events Subsequent to the Date of the Last Financial Statement..............................15 Section 4.1.10. Absence of Undisclosed Liabilities..............16 Section 4.1.11. Taxes...........................................16 Section 4.1.12. Litigation......................................17 Section 4.1.13. Insurance.......................................17 Section 4.1.14. Conflicts of Interests..........................17 Section 4.1.15. Other Relationships.............................18 Section 4.1.16. Licenses; Compliance with Laws, Other Agreements, etc.................................18 Section 4.1.17. Intellectual Property Rights and Government Approvals.......................................18 Section 4.1.18. Investment Company Act..........................19 Section 4.1.19. Brokers, etc....................................19 Section 4.1.20. Private Sale....................................19 Section 4.1.21. Disclosure......................................19 Section 4.1.23. Customers and Suppliers.........................19 Section 4.1.24. Employee Matters and Benefits...................20 Section 4.1.25. Environmental Matters...........................22 Section 4.1.26. Lending Activities..............................23 Section 4.1.27. Title to Properties.............................24 Section 4.1.28. Condition and Sufficiency of Assets.............24 Section 4.1.29. Real Property...................................24 Section 4.2. [Intentionally Omitted]............................25 ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS 25 Section 5.1. Representations and Warranties of the Purchaser....25 Section 5.1.1. Power and Authority..............................25 Section 5.1.2. Enforceability, etc..............................25 Section 5.1.3. Purchase for Investment..........................26 Section 5.1.4. Financial Matters................................26 Section 5.1.5. Access to Personnel and Materials................26 Section 5.1.6. Brokers, etc.....................................26 ARTICLE VI COVENANTS 26 Section 6.1. [Intentionally Omitted]............................26 Section 6.2. Post-Closing Date Covenants of the Company.........26 Section 6.2.1. Use of Proceeds..................................26 (ii) Section 6.2.2. Inspection of Property...........................26 Section 6.2.3. Compliance with Agreements.......................27 Section 6.2.4. Affirmative Covenants............................27 Section 6.2.5. SBIC Regulatory Provisions.......................28 Section 6.2.6. Regulatory Compliance Cooperation................28 Section 6.2.7. Further Assurances...............................29 Section 6.2.8. Reservation and Authorization of Common Stock....29 Section 6.2.9. Financial Statements; Information................29 Section 6.2.10. Form 1099.......................................30 ARTICLE VIA REGISTRATION RIGHTS IN RESPECT OF REGISTRABLE SECURITIES 30 Section 6A.1 Notice.............................................30 Section 6A.2 Proration...........................................30 Section 6A.3 Registration Procedures............................31 Section 6A.4 Holdback on Sales..................................33 Section 6A.5 Expenses...........................................33 ARTICLE VIB [INTENTIONALLY OMITTED] 33 ARTICLE VIC INDEMNIFICATION IN RESPECT OF REGISTRATION RIGHTS 33 Section 6C.1 Indemnification by the Company.....................33 Section 6C.2 Indemnification by the Sellers.....................34 Section 6C.3 Notices of Claims, etc.............................35 Section 6C.4 Contribution.......................................36 ARTICLE VII TERMINATION 36 Section 7.1. Termination........................................36 Section 7.2. Effect of Termination..............................37 ARTICLE VIII MISCELLANEOUS 37 Section 8.1. Payment of Costs and Expenses......................37 Section 8.2. [Intentionally Omitted]............................37 Section 8.3. Brokerage..........................................38 Section 8.4. [Intentionally Omitted]............................38 Section 8.5. Assignment; Parties in Interest....................38 Section 8.6. Notices.............................................38 Section 8.7. No Waiver..........................................38 Section 8.8. Amendment..........................................38 Section 8.9. Survival of Representations, Warranties, Covenants and Agreements...........................38 Section 8.10. Governing Law.....................................38 Section 8.11. Specific Performance..............................39 Section 8.12. Entire Understanding..............................39 (iii) Section 8.13. Counterparts......................................39 EXHIBITS Exhibit A Amended and Restated Certificate of Incorporation of the Company Exhibit B Form of Warrant Exhibit C-1 Form of Merger Agreement Exhibit C-2 Form of Certificate of Merger SCHEDULES Schedule I Purchaser Information Schedule II Addresses For Notice Schedule III Capitalization Schedule of the Company Schedule IV Consents Relating to the Purchasers PREFERRED STOCK AND WARRANT PURCHASE AGREEMENT This PREFERRED STOCK AND WARRANT PURCHASE AGREEMENT, dated as of May 9, 2000 (as amended or otherwise modified from time to time, this "AGREEMENT"), is made by and among BPC HOLDING CORPORATION, a Delaware corporation (the "COMPANY"), CHASE VENTURE CAPITAL ASSOCIATES, L.P., a California limited partnership ("CVCA") and THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY ("NORTHWESTERN" and, together with CVCA, the "PURCHASERS".) W I T N E S E T H: WHEREAS, the Company intends to acquire Poly-Seal Corporation in a merger transaction (the "MERGER"), and has formed a subsidiary, Berry Plastics Acquisition Corporation, a Delaware corporation ("MERGERCO") in connection therewith; WHEREAS, in order to provide a portion of the financing for the consummation of the Merger, the Company proposes to enter into the transactions contemplated by this Agreement; WHEREAS, the Purchasers desire to purchase an aggregate of (i) 1,000,000 shares of Preferred Stock, and (ii) warrants in the form attached hereto as EXHIBIT B entitling the holder or holders thereof to purchase, on certain terms and conditions, an aggregate of 25,997 shares of Class B Non-Voting Common Stock, at a purchase price of $0.01 per share, subject to adjustment as provided therein (the "WARRANTS" and, together with the Preferred Stock, the "PURCHASED SECURITIES"), all on the terms and subject to the conditions set forth in this Agreement; WHEREAS, the Company desires to issue and sell the Purchased Securities to the Purchasers, on the terms and subject to the conditions set forth in this Agreement; NOW, THEREFORE, based upon the foregoing and the mutual covenants and agreements herein contained, and for other good and sufficient consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows: ARTICLE I DEFINED TERMS Section 1.1. DEFINED TERMS . Capitalized terms used but not otherwise defined in this Agreement shall have the meaning assigned to such terms in the Merger Agreement. When used in this Agreement, the following terms shall have the following meanings: "AFFILIATE" means, with respect to any specified Person, any other Person which, directly or indirectly, controls, is under common control with, or is owned or controlled by, such specified Person. For purposes of this definition, (i) "control" means, with respect to any specified Person, either (x) the beneficial ownership of more than 30 percent of any class of equity securities or (y) the power to direct the management or policies of the specified Person through the ownership of voting securities, by contract, voting agreement or otherwise, and (ii) the terms "controlling", "control with" and "controlled by", etc., shall have meanings correlative to the foregoing. "AMENDED AND RESTATED CERTIFICATE OF INCORPORATION" means the Amended and Restated Certificate of Incorporation of the Company in the form attached hereto as EXHIBIT A and filed in Delaware on the date hereof, as amended from time to time in accordance with the requirements hereof. "AMENDMENT TO STOCKHOLDERS AGREEMENT" means the First Amendment dated as of May 9, 2000 to the Stockholders Agreement. "BERRY" means Berry Plastics Corporation, a wholly-owned subsidiary of the Company. "BY-LAWS" means the by-laws of the Company, as amended from time to time in accordance with the requirements hereof and thereof. "CERTIFICATE OF MERGER" means the Certificate of Merger, dated as of the Closing Date, by and between Mergerco and Poly-Seal Corporation, in substantially the form of EXHIBIT C-2 hereto. "CLASS A COMMON STOCK" means the Company's Class A Voting Common Stock and Class A Non-Voting Common Stock. "CLASS A NON-VOTING COMMON STOCK" means the Company's Class A Non- Voting Common Stock, par value $.01 per share. "CLASS A VOTING COMMON STOCK" means the Company's Class A Voting Common Stock, par value $.01 per share. "CLASS B COMMON STOCK" means the Company's Class B Voting Common Stock and Class B Non-Voting Common Stock. "CLASS B NON-VOTING COMMON STOCK" means the Company's Class B Non- Voting Common Stock, par value $.01 per share. "CLASS B VOTING COMMON STOCK" means the Company's Class B Voting Common Stock, par value $.01 per share. "CLASS C COMMON STOCK" means the Company's non-voting Class C Common Stock, par value $.01 per share. "CODE" means the Internal Revenue Code of 1986, as amended. "COMMON STOCK" means the Class A Common Stock, the Class B Common Stock and the Class C Common Stock and any other classes of common stock of the Company hereafter authorized in accordance with the requirements hereof and of the Stockholders Agreement. 2 "CREDIT FACILITY" means the Third Amended and Restated Financing and Security Agreement by and among Berry Plastics Corporation, NIM Holdings Limited, Berry Plastics UK Limited, Bank of America, N.A., Fleet Capital Corporation, General Electric Capital Corporation, Heller Financial, Inc., PNC Bank, National Association and Bank of America, N.A. dated as of May 9, 2000, INCLUDING ANY RELATED NOTES, GUARANTEES, COLLATERAL DOCUMENTS, INSTRUMENTS AND AGREEMENTS EXECUTED IN CONNECTION THEREWITH, AND IN EACH CASE AS AMENDED, MODIFIED, RENEWED, REFUNDED, REPLACED OR REFINANCED FROM TIME TO TIME WHICH INCLUDES THE ADDITION, SUBSTITUTION OR REPLACEMENT OF ANY OR ALL LENDERS THEREUNDER UNDER THE SAME OR ANY REPLACEMENT AGREEMENT. "DGCL" means the General Corporation Law of the State of Delaware. "ENVIRONMENTAL LAW" means any law which relates to or otherwise imposes liability or standards of conduct concerning discharges, emissions, releases or threatened releases of noises, odors or any pollutants, contaminants or hazardous or toxic wastes, substances or materials, whether as matter or energy, into ambient air, water, or land, or otherwise relating to the manufacture, processing, generation, distribution, use, treatment, storage, disposal, cleanup, transport or handling of pollutants, contaminants, or hazardous or toxic wastes, substances or materials, including the Comprehensive Environmental Response, Compensation and Liability Act of 1980 and the Superfund Amendments and Reauthorization Act of 1986 (together, as amended, "CERCLA"), the Resource Conservation and Recovery Act of 1976, as amended, the Toxic Substances Control Act of 1976, as amended, the Federal Water Pollution Control Act Amendments of 1972, the Clean Water Act of 1977, as amended, any so-called "Superlien" law, and any other similar Federal, state or local Law. "ENVIRONMENTAL PERMIT" means any permit, license, approval, consent or other authorization required by or pursuant to any applicable Environmental Law. "ERISA" means the Employee Retirement Income Security Act of 1974, as amended, or any successor law thereto. "EVENT OF NONCOMPLIANCE" has the meaning provided in the Stockholders Agreement. "GOVERNMENTAL AUTHORITY" means the government of the United States or any foreign country or any state or political subdivision thereof and any entity, body or authority exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government. "HAZARDOUS MATERIAL" means (a) any "hazardous substance", as defined by CERCLA; (b) any "hazardous waste", as defined by the Resource Conservation and Recovery Act, as amended; (c) any petroleum product or fractions thereof; or 3 (d) any pollutant or contaminant or hazardous, dangerous or toxic chemical, material or substance within the meaning of any other applicable Federal, state or local law, regulation, ordinance or requirement (including consent decrees and administrative orders) relating to or imposing liability or standards of conduct concerning any hazardous, toxic or dangerous waste, substance or material, all as now or at any time hereafter in effect. "HOLDER" means any Purchaser or any of its permitted successors and assigns, other than the Company or any of its Subsidiaries holding any Preferred Stock. "INDEBTEDNESS" means, with respect to any Person, any indebtedness of such Person, whether or not contingent, in respect of borrowed money or evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof) or representing Capital Lease Obligations (as defined in the Amended and Restated Certificate of Incorporation) or the balance deferred and unpaid of the purchase price of any property or representing Hedging Obligations (as defined in the Amended and Restated Certificate of Incorporation), except any such balance that constitutes an accrued expense or trade payable, if and to the extent any of the foregoing indebtedness (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet of such Person prepared in accordance with GAAP, and also includes, to the extent not otherwise included, the Guarantee (as defined in the Amended and Restated Certificate of Incorporation) of any Indebtedness of such Person or any other Person. "INTERESTS" means any evidence of equity ownership of any Person, whether represented by common stock, preferred stock, securities convertible into, exchangeable or exercisable for the purchase or other acquisition of common stock or preferred stock (including convertible or exchangeable debentures, warrants and options), trust certificates or general or limited partnership interests. "INTERNATIONAL" means Atlantic Equity Partners International II, L.P., a Delaware limited partnership domiciled in the Cayman Islands. "LIEN" means any mortgage, lien (except for any lien for taxes not yet due and payable), charge, restriction, pledge, security interest, option, lease or sublease, claim, right of any third party, easement, encroachment or encumbrance. "LOSSES" means all losses, claims, damages, liabilities, costs (including any costs of investigation and reasonable attorneys' fees) and expenses. "MATERIAL ADVERSE EFFECT" means, with respect to any Person, any fact, event, change, circumstance or effect that has or is reasonably likely to have a materially adverse effect on the business, financial condition, results of operations or, to the actual knowledge of such Person, prospects of such Person and its Subsidiaries, taken as a whole. "MERGER AGREEMENT" means the Agreement and Plan of Merger, dated as of May 5, 2000, by and among Mergerco, Berry, Poly-Seal Corporation and the Shareholder Parties, in substantially the form of EXHIBIT C-1 hereto. 4 "OTHER FINANCING DOCUMENTS" means the Credit Facility and any agreements and documents related thereto. "PERSON" means any individual, corporation, general or limited partnership, joint venture, association, limited liability company, joint stock company, trust, business trust, bank, trust company, estate (including any beneficiaries thereof), unincorporated organization, cooperative, association or governmental branch, authority, agency or political subdivision thereof. "PREFERRED STOCK" means the Series A-1 Senior Cumulative Preferred Stock of the Company, par value $.01 per share. "PURCHASED SECURITIES" has the meaning specified in the recitals of this Agreement. "REGISTRABLE SECURITIES" means the Preferred Stock, the Warrants and the Warrant Stock, PROVIDED that as to any particular shares of Preferred Stock, Warrants or Warrant Stock, once issued such securities shall cease to be Registrable Securities when (i) a registration statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been disposed of in accordance with such registration statement, (ii) they shall have been distributed to the public pursuant to Rule 144 or have become eligible for sale pursuant to paragraph (k) of Rule 144 or (iii) they shall have ceased to be outstanding. "RELATED DOCUMENTS" means the Amended and Restated Certificate of Incorporation, the Warrants, the Merger Agreement, the Certificate of Merger and the Amendment to Stockholders Agreement. "RESTATED CERTIFICATE OF INCORPORATION" means the Company's amended and restated certificate of incorporation filed with the Secretary of State of the State of Delaware on December 20, 1990 (amending and restating the certificate of incorporation of the Company filed on December 11, 1990), as further amended by the amended and restated certificate of incorporation filed on April 19, 1994, as further amended by the certificate of amendment filed on May 5, 1995, as further amended by the certificate of amendment filed June 14, 1996. "RESTRICTED SECURITIES" means (i) the Preferred Stock, (ii) the Warrants, (iii) the Warrant Stock and (iv) any securities issued with respect to the securities specified in the foregoing clauses (i), (ii) or (iii) by way of a stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization. Any security referred to in the preceding sentence shall cease to be a Restricted Security when it has (a) been disposed of pursuant to an effective registration statement under the Securities Act, (b) become eligible for sale pursuant to paragraph (k) of Rule 144 or (c) otherwise been transferred and new certificates therefor not bearing the legend set forth in Section 2.5 have been issued. "STOCKHOLDERS AGREEMENT" means the Stockholders Agreement, dated as of June 18, 1996, among the Company, CVCA, International, the institutional investors named therein, certain members of management of the Company and CVCA and Northwestern as holders of Preferred Stock with respect to certain provisions thereof, as amended from time to time pursuant to its terms. 5 "SUBSIDIARY" or "SUBSIDIARIES" of any Person means any corporation or other entity of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other Persons performing similar functions are at the time directly or indirectly owned or controlled by such Person or one or more Subsidiaries of such Person. "`33 ACT" or "SECURITIES ACT" means the Securities Act of 1933, as amended, and the rules and regulations issued in respect thereto. "`34 ACT" or "EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, and the rules and regulations issued in respect thereto. "UNITS" has the meaning specified in Section 2.1 of this Agreement. "WARRANTS" has the meaning specified in the recitals of this Agreement. "WARRANT STOCK" means all shares of Class B Non-Voting Common Stock issuable from time to time upon exercise of the Warrants. Section 1.2. ADDITIONAL TERMS . The following terms shall have the meanings indicated or referred to in the following Sections of this Agreement: TERM SECTION Agreement Preamble Approval 4.1.5(a) Balance Sheet 4.1.9 Blue Sky Laws 4.1.4(d) Capitalization Schedule 3.1.3 CERCLA definition of Environmental Law Closing 2.3 Closing Date 2.3 Company Preamble CVCA Preamble Employee Benefit Plans 4.1.24(b) Financial Statements 4.1.7(b) GAAP 4.1.7(b) Indemnified Seller 6C.1 Intellectual Property 4.1.17 Licenses 4.1.16 Merger 1st Recital Mergerco 1st Recital Northwestern Preamble Proceeding 6C.3 Purchase Price 2.1 Purchasers Preamble Regulatory Problem 6.2.6(b) SBA Compliance Document 3.2.4 SBIC Holder 6.2.5(a) 6 SEC 4.1.7(a) SEC Reports 4.1.7(a) Seller 6A.1 Seller Notice 6A.1 Section 1.3. CONSTRUCTION. . When used herein, the masculine form of words includes the feminine and the neuter and vice versa, and, unless the context otherwise requires, the singular form of words includes the plural and vice versa. The words "herein", "hereof", "hereunder" and other words of similar import when used in this Agreement refer to this Agreement as a whole, and not to any particular section or subsection. ARTICLE II PURCHASE AND SALE TERMS Section 2.1. PURCHASE AND SALE; PURCHASE PRICE . Subject to the terms of this Agreement, the Company agrees to authorize, issue and sell to the Purchasers, and the Purchasers severally agree to purchase from the Company, (i) an aggregate of 1,000,000 shares of Preferred Stock and (ii) Warrants to purchase an aggregate of 25,997 shares of Class B Non-Voting Common Stock (subject to adjustment). Shares of the Preferred Stock and the Warrants shall be issued and sold to the Purchasers in units (the "UNITS"), each Unit consisting of 1,000 shares of Preferred Stock and Warrants to purchase 25.997 shares of Class B Non-Voting Common Stock. The purchase price for each Unit shall be $25,000, for an aggregate purchase price of $25,000,000 (the "PURCHASE PRICE"), payable in immediately available funds at the Closing in the manner provided in Section 2.4. Each Purchaser will purchase the number of Units set forth opposite the name of such Purchaser on SCHEDULE I hereto. Section 2.2. THE MERGER . Subject to the terms of this Agreement, the Company shall effect the Merger at the Closing in accordance with the terms of the Merger Agreement. Section 2.3. THE CLOSING . The closing of the purchase and sale of the Units and the consummation of the Merger shall take place at the offices of O'Sullivan, Graev & Karabell, LLP, located at 30 Rockefeller Plaza, New York, New York 10112 or at such other location as the Company and the Purchasers may designate (the "CLOSING"). The Closing shall occur on or before May 9, 2000, or such later date as the Company and the Purchasers may designate (the "CLOSING DATE"). It is the intention of the parties hereto that the Closing Date shall occur simultaneously with the issuance of the Units hereunder. Section 2.4. PAYMENT AND DELIVERY . At the Closing, each Purchaser will deliver the portion of the Purchase Price set forth opposite such Purchaser's name on SCHEDULE I hereto by wire or interbank transfer in immediately available funds to an account designated in writing by the Company prior to the Closing Date, against delivery by the Company to each of the Purchasers of (i) one or more (as designated by such Purchaser) duly executed stock certificates evidencing the number of shares of Preferred Stock to be purchased by such Purchaser (as set forth on SCHEDULE I hereto) and (ii) the duly executed warrant certificates, in such numbers as may be requested by each of the Purchasers, evidencing Warrants to purchase the aggregate number of shares of Class B Non-Voting Common Stock set forth opposite 7 such Purchaser's name on SCHEDULE I hereto, each such certificate to be dated the Closing Date and registered in the name of such Purchaser or its nominee. Section 2.5. RESTRICTIVE LEGEND. In addition to any legend required by the DGCL, each certificate evidencing the Preferred Stock and the Warrants issued at the Closing will bear, and each certificate representing a Restricted Security will bear, a legend in the following terms: "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, AND ACCORDINGLY, SUCH SECURITIES MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH THE REGISTRATION OR QUALIFICATION PROVISIONS OF APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR APPLICABLE EXEMPTIONS THEREFROM." WHENEVER ANY PARTICULAR SECURITY CEASES TO BE A RESTRICTED SECURITY, THE HOLDER THEREOF SHALL BE ENTITLED TO RECEIVE FROM THE COMPANY, WITHOUT EXPENSE, NEW SECURITIES OF LIKE TENOR, NOT BEARING THE ABOVE LEGEND. Section 2.6. USE OF PROCEEDS . The Company shall use the net cash proceeds received from the Credit Facility and the sale of the Units solely for purposes of effecting the Merger, funding the Aggregate Merger Consideration and paying the costs, expenses and fees incurred in connection therewith. ARTICLE III CLOSING CONDITIONS Section 3.1. CONDITIONS OF THE PURCHASERS AND THE COMPANY . The obligation of each of the Purchasers to purchase, and the obligation of the Company to issue and sell, the Units, as applicable, and the obligation of the Company to effect the Merger on the Closing Date, shall be subject to satisfaction of the following conditions on or prior to such date (unless otherwise specified below): Section 3.1.1. EXECUTION OF THIS AGREEMENT AND ALL RELATED DOCUMENTS . The Company, Mergerco, each of the Purchasers, the Shareholder Parties and all other requisite parties shall have duly authorized and executed copies of this Agreement, each Related Document, each Other Financing Document and each other agreement, document or instrument related hereto or thereto, to which any such Person is a party, required in connection with the consummation of the transactions contemplated hereby and thereby. This Agreement, each such Related Document, each such Other Financing Document and each other related agreement, document or instrument shall remain in full force and effect. Section 3.1.2. ISSUANCE AND PURCHASE OF THE UNITS . The Company shall have duly issued and delivered applicable certificates to each of the Purchasers representing the number of shares of Preferred Stock and Warrants purchased by each of the Purchasers as provided in ARTICLE II hereof and the Purchasers shall have purchased and 8 paid for such Preferred Stock and Warrants of the Company to be purchased by them pursuant to such ARTICLE II. Section 3.1.3. MERGER EFFECTIVE; AMENDED AND RESTATED CERTIFICATE OF INCORPORATION The Certificate of Merger and the Amended and Restated Certificate of Incorporation of the Company shall have been filed with the Secretary of State of Delaware in accordance with Delaware law and be in effect. Immediately after giving effect to the Closing and the consummation of the transactions contemplated hereby, the Company's capitalization shall be as set forth on SCHEDULE III hereto (the "CAPITALIZATION SCHEDULE"). Section 3.1.4. MERGER CONSIDERATION Upon the effectiveness of the Merger, the Company shall have paid the Closing Date Payment Amount to the Shareholder Payments Escrow Account pursuant to the Merger Agreement and shall have made the escrow deposits required by the Merger Agreement. Section 3.1.5. NO LITIGATION, ETC No litigation, arbitration, governmental investigation or proceeding shall, as of the Closing Date, be pending or, to the knowledge of the Company, threatened, which seeks to enjoin or otherwise prevent the consummation of, or to recover any damages or obtain relief as a result of, the transactions contemplated by this Agreement, the other Related Documents, the Other Financing Documents or any other material agreement related hereto or thereto. Section 3.1.6. ENVIRONMENTAL REPORT The Purchasers shall have received and reviewed a Phase I and Phase II environmental assessment for each parcel of real property owned or leased by Poly-Seal Corporation, each of which environmental assessment has been performed by a reputable and recognized environmental consulting firm acceptable to the Purchasers and has revealed no material Hazardous Materials Contamination (as defined in the Credit Facility) or material violations of any Environmental Laws, and shall otherwise be in all respects acceptable to the Purchasers. Section 3.1.7. APPROVALS, ETC. All Approvals set forth on ITEM 4.1.5 ("Consents and Approvals") of the Disclosure Schedule hereto shall have been obtained or otherwise satisfied, and all applicable waiting or appeal periods with respect thereto shall have passed, in each case to the satisfaction of each of the Purchasers. Section 3.1.8. [Intentionally Omitted] Section 3.1.9. [Intentionally Omitted] Section 3.1.10. ALL PROCEEDINGS TO BE SATISFACTORY (a) All corporate and other proceedings to be taken by the Company in connection with the transactions contemplated hereby, (b) the other Related Documents and the Other Financing Documents, and (c) all documents incident thereto, shall be satisfactory in form and substance to the Purchasers and their counsel, and the Purchasers and said counsel shall have received all such counterpart originals or certified or other copies of such documents as they may reasonably request. Section 3.1.11. REASONABLE SATISFACTION OF PARTIES AND COUNSEL All instruments applicable to the issuance and sale of the Preferred Stock and the Warrants and the other transactions contemplated 9 hereby and by the Credit Facility shall be reasonably satisfactory to the parties hereto and thereto and their respective counsel. Section 3.2. CONDITIONS OF THE PURCHASERS The obligations of each of the Purchasers to purchase the Units shall be further subject to the satisfaction of the following conditions on or prior to such date (unless otherwise specified below): Section 3.2.1. REPRESENTATIONS AND WARRANTIES TO BE TRUE AND CORRECT; CERTIFICATE OF OFFICER OF THE COMPANY The representations and warranties contained in ARTICLE IV, as well as the representations and warranties set forth in Article IV of the Credit Facility, shall be true and correct in all material respects (except with respect to any such representation or warranty that contains an express materiality limitation, in which case such representation or warranty shall be true and correct in all respects) on and as of the Closing Date with the same effect as though such representations and warranties had been made on and as of the Closing Date (except to the extent that any such representations and warranties specifically apply to a prior date). The Company shall have delivered to each of the Purchasers a certificate of its chief executive or chief financial officer certifying that (i) the representations and warranties set forth herein and therein are in fact true and correct as stated above, (ii) the Company has performed or complied with all agreements and conditions contained herein which are required to be performed or complied with by it on or before the Closing Date, (iii) Berry has performed or complied with all agreements and conditions contained in the Credit Facility and (iv) each of the conditions set forth in SECTIONS 3.1 and 3.2 has been satisfied. Section 3.2.2. SUPPORTING DOCUMENTS On or prior to the Closing Date, the Purchasers and their counsel shall have received copies of the following supporting documents: (a) (i) copies of the Company's Amended and Restated Certificate of Incorporation, certified as of the Closing Date by the Secretary of State of the State of Delaware, (ii) a certificate of said Secretary of State, dated as of a recent date, as to the due incorporation and good standing of the Company and its Subsidiaries and listing all documents of the Company on file with said Secretary of State, and (iii) a facsimile, telegram or telex from said Secretary as of the close of business on the business day preceding the Closing Date as to the continued good standing of the Company; (b) [Intentionally Omitted]; (c) a certificate of the Secretary of the Company, dated the Closing Date and certifying: (i) that attached thereto is a true and complete copy of the By-laws of the Company as in effect on the date of such certification; (ii) that attached thereto is a true and complete copy of resolutions adopted by the Board of Directors of the Company authorizing the execution, delivery and performance of this Agreement, each of the Related Documents and each of the Other Financing Documents, the issuance, sale and delivery of the Preferred Stock and Warrants to the Purchasers by the Company, and that all such resolutions are still in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereunder and thereunder; (iii) that the Company's Restated Certificate of Incorporation has not been amended (other than by the amendment and restatement of the Company's Restated Certificate of Incorporation by the Amended and Restated Certificate of Incorporation) since the date of the certificate delivered pursuant to 10 CLAUSE (a)(ii) above; and (iv) the incumbency and specimen signature of each officer of the Company executing this Agreement, each of the Related Documents, each of the Other Financing Documents, the stock certificate or certificates representing the Preferred Stock, Warrants and any certificate or instrument furnished pursuant hereto or thereto, and a certification by another officer of the Company as to the incumbency and signature of the officer signing the certificate referred to in this CLAUSE (C); and (d) [Intentionally Omitted]; (e) such additional supporting documents, instruments, certificates, opinions and other information with respect to the operations and affairs of the Company as the Purchasers or their counsel may reasonably request. All such documents shall be satisfactory in form and substance to the Purchasers and their counsel. Section 3.2.3. LEGAL OPINION FROM COUNSEL FOR THE COMPANY On the Closing Date, each of the Purchasers shall have received the written opinion of O'Sullivan, Graev & Karabell, LLP, counsel for the Company, in form and substance satisfactory to each of the Purchasers and their counsel. Section 3.2.4. DELIVERY OF SBA FORMS. In the event that any Purchaser is a licensed Small Business Investment Company under the Small Business Investment Act of 1958, as amended, the Company shall have provided such Purchaser with all information necessary for such Purchaser to prepare the Portfolio Financing Report on Form 1031 (the "SBA COMPLIANCE DOCUMENT"), and all of the information set forth in the SBA Compliance Document shall be true and correct in all respects. Section 3.2.5. [Intentionally Omitted] Section 3.2.6. CREDIT FACILITY The terms of the Credit Facility shall be satisfactory to each of the Purchasers, the Credit Facility shall be in full force and effect, the Purchasers shall have received copies of the documents comprising the Credit Facility and the Company shall have borrowed not more than $70 million thereunder. Section 3.2.7. THE MERGER. (a) The Merger shall have been completed and closed prior to or simultaneously herewith in accordance with the Merger Agreement and all applicable laws. (b) The Purchasers shall have received photocopies of all Merger documents executed, delivered and/or furnished in connection with the Merger, together with a certificate signed by an Officer of the Company certifying that the Merger Agreement and the other Merger documents furnished to the Purchasers are true, correct, in full force and effect and the provisions thereof have not been in any way modified, amended or waived, except as otherwise disclosed 11 in writing to and consented to by the Purchasers on or before the date of this Agreement. Section 3.3. CONDITIONS OF THE COMPANY The obligations of the Company to effect the Merger and to sell Units shall be further subject to satisfaction of the following conditions on or prior to such date: Section 3.3.1. REPRESENTATIONS AND WARRANTIES TO BE TRUE AND CORRECT The representations and warranties contained in ARTICLE V shall be true and correct on and as of the Closing Date with the same effect as though such representations and warranties had been made on and as of such date (except to the extent that any such representations and warranties specifically apply to a prior date). Section 3.3.2. THE MERGER The Merger shall have been completed and closed prior to or simultaneously herewith in accordance with the Merger Agreement and all applicable laws. Section 3.4. CONDITIONS OF NORTHWESTERN The obligations of Northwestern to purchase the Units shall be further subject to the satisfaction of the following conditions on or prior to the Closing Date (unless otherwise specified below): Section 3.4.1. PURCHASE PERMITTED BY APPLICABLE LAW, ETC. On the Closing Date, the purchase of Units by Northwestern shall (i) be permitted by the laws and regulations of each jurisdiction to which Northwestern is subject, without recourse to provisions (such as Section 1405(a)(8) of the New York Insurance Law) permitting limited investments by insurance companies without restriction as to the character of the particular investment, (ii) not violate any applicable law or regulation (including, without limitation, Regulation G, T or X of the Board of Governors of the Federal Reserve System) and (iii) not subject Northwestern to any tax, penalty or liability under or pursuant to any applicable law or regulation, which law or regulation was not in effect on the date hereof. Section 3.4.2. PRIVATE PLACEMENT NUMBER A Private Placement number issued by Standard & Poor's CUSIP Service Bureau (in cooperation with the Securities Valuation Office of the National Association of Insurance Commissioners) shall have been requested for the Preferred Stock and Warrants. ARTICLE IV REPRESENTATIONS AND WARRANTIES Section 4.1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY The Company represents and warrants to each of the Purchasers, as of the date hereof and the Closing Date, after giving effect to the transactions contemplated to occur thereon (except to the extent any of the following representations or warranties specifically apply or relate to a prior date, in which event the Company represents and warrants such representations and warranties to be true and correct as of such prior date), as follows: 12 Section 4.1.1. CORPORATE EXISTENCE Each of the Company and each of its Subsidiaries is a corporation duly incorporated, validly existing and in good standing under the laws of the jurisdiction set forth for such corporation on ITEM 4.1.1 ("Company and Existing Subsidiaries (Name, Jurisdiction of Incorporation)") of the Disclosure Schedule hereto, and is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction in which the ownership or use of its assets or properties, or the conduct or nature of its business, makes such qualification necessary, except where the failure to so qualify would not constitute a Material Adverse Effect. The Company has all requisite corporate power and authority to conduct its business and own its properties as now conducted and owned. Attached as EXHIBIT A hereto is a true and complete copy of the Company's Amended and Restated Certificate of Incorporation, as in effect and as on file with the Secretary of State of the State of Delaware as of the Closing Date after giving effect to the Merger. Section 4.1.2. POWER AND AUTHORITY The Company has all requisite corporate power and authority, and has taken all required corporate and other action necessary, to execute, deliver and perform this Agreement, all Related Documents, all Other Financing Documents to which the Company is a party and to effect the Merger, each as herein and therein provided. Except as disclosed on ITEM 4.1.2 ("Power and Authority") of the Disclosure Schedule hereto, none of the foregoing actions will (i) violate any provision of the Company's By-laws, Restated Certificate of Incorporation prior to the Merger or Amended and Restated Certificate of Incorporation following the Merger, (ii) result in the breach of or constitute a default under any contract, agreement or instrument to which the Company or any of its Subsidiaries is a party or by which it or any of them is bound, (iii) result in the creation or imposition of any lien, claim or encumbrance on any asset of the Company or any of its Subsidiaries (except as contemplated by the Related Documents or the other Financing Documents), (iv) give any Person rights to terminate any contracts or agreements with the Company or any of its Subsidiaries or otherwise to exercise rights against the Company or any of its Subsidiaries or (v) violate any Approval or any order, writ, judgment, injunction, decree, statute, rule or regulation of any court, tribunal or governmental entity applicable to or bearing upon the Company or any of its Subsidiaries or any of their respective assets or business, except, in the case of each of clauses (ii), (iii), (iv) and (v) above, for occurrences that would not in the aggregate constitute a Material Adverse Effect. Section 4.1.3. ENFORCEABILITY, ETC. Each of this Agreement, each of the Related Documents and each of the Other Financing Documents to which the Company is a party has been duly executed and delivered by the Company and constitutes the legal, valid and binding obligation of the Company enforceable against it in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance or other similar laws affecting the enforcement of creditors' rights generally and general equitable principles. Section 4.1.4. CAPITALIZATION Assuming that all transactions contemplated hereunder have been consummated (including the issuance and sale of the Preferred Stock and the Warrants and consummation of the Merger) as of the Closing Date: 13 (a) the Capitalization Schedule sets forth a true and complete statement of the capitalization of the Company and each of its Subsidiaries as of the Closing Date, including a list of all holders of Interests of or in the Company and its Subsidiaries (and the amount and type of such Interests); (b) except as set forth on the Capitalization Schedule, neither the Company nor any of its Subsidiaries has issued any Interests, nor are any Interests (or any rights to acquire or purchase any Interests) outstanding; (c) [Intentionally Omitted]; (d) The 25,997 shares of Class B Non-Voting Common Stock issuable upon the exercise of the Warrants will have been duly authorized and reserved for issuance upon exercise of the Warrants and, when issued upon such exercise and payment of the exercise price thereof in accordance with the terms of the Warrants, will have been duly authorized, validly issued and will be fully paid and nonassessable and will be delivered to the holder(s) of the Warrants free and clear of any liens, encumbrances, pre-emptive rights, escrows, options, rights of first refusal or other agreements, arrangements, commitments, understandings or obligations, whether written or oral, or any other restrictions affecting rights and other incidents of record and beneficial ownership, other than (i) as set forth herein, and (ii) restrictions on transferability imposed generally under the `33 Act and under the securities laws of the several states and the rules and regulations issued in respect thereof (such state laws, rules and regulations, being, collectively, "BLUE SKY LAWS"); and (e) [Intentionally Omitted]. Except as set forth on ITEM 4.1.1 ("Company and Existing Subsidiaries (Name, Jurisdiction of Incorporation)") of the Disclosure Schedule hereto, the Company has no Subsidiaries. The Company owns 100% of all issued and outstanding shares of capital stock of its Subsidiaries, and owns no capital stock, other securities or Interests, or rights or obligations to acquire the same, of any other Person. Section 4.1.5. CONSENTS, APPROVALS AND NON-CONTRAVENTION Except as set forth on ITEM 4.1.5 ("Consents and Approvals") of the Disclosure Schedule hereto, neither the execution, delivery and performance by the Company of this Agreement, any Related Documents or any of the Other Financing Documents to which it is a party, nor the consummation of any transaction related hereto or thereto, nor the issuance, sale or delivery of the Common Stock issued on exercise of the Warrants, the Preferred Stock or Warrants will: (a) require any consent, approval, license, permit, waiver or other authorization of, filing or taking of any other action with, or notice to, any Person, including any local, state or federal governmental agency, authority, branch or instrumentality (collectively, an "APPROVAL"), except where the failure to obtain an Approval would not in the aggregate constitute a Material Adverse Effect; or (b) violate any of the Company's, or any of its Subsidiaries', Licenses, except where such violation would not in the aggregate constitute a Material Adverse Effect. 14 Section 4.1.6. PRO FORMA BALANCE SHEET The pro forma balance sheet set forth on ITEM 4.1.6 ("Pro Forma Balance Sheet") of the Disclosure Schedule hereto fairly presents in all material respects the financial condition of the Company and its Subsidiaries on a consolidated basis as of the date of the Balance Sheet, giving effect to the consummation of the transactions contemplated hereby and by the Related Documents and the Other Financing Documents as if such transactions had been consummated as of such date. ITEM 4.1.6 ("Pro Forma Balance Sheet") of the Disclosure Schedule also sets forth a pro forma consolidating balance sheet of each of the Company and its Subsidiaries. Section 4.1.7. SEC REPORTS AND FINANCIAL STATEMENTS (a) The Company has filed all forms, reports and documents required to be filed with the Securities and Exchange Commission ("SEC") since December 31, 1994, and has made available to the Purchasers (i) its Annual Reports on Form 10-K for the 1998 and 1999 fiscal years, (ii) all other reports, information and registration statements filed by the Company with the SEC since December 31, 1998 and (iii) all amendments and supplements to all such reports, information and registration statements filed by the Company with the SEC (collectively, the "SEC REPORTS"). The SEC Reports (1) were prepared in accordance with the requirements of the Securities Act or the Exchange Act, as the case may be, and the rules and regulations promulgated thereunder and (2) did not at the time they were filed (or if amended or superseded by a filing prior to the date of this Agreement, then on the date of such filing) contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. As of the date of filing of the last SEC Report, there was no contract or agreement that was required to be filed as an exhibit thereto which had not been filed as such, and, other than the Related Documents, since such date there has been no contract or agreement that would have to be included in any SEC Reports filed thereafter. True and complete copies of each SEC Report, including all exhibits thereto, have been made available to the Purchasers. (b) Except as set forth on Item 4.1.7 ("FINANCIAL STATEMENTS") of the Disclosure Schedule hereto, each of the consolidated financial statements (including, in each case, any related notes thereto) (the "FINANCIAL STATEMENTS") contained in the SEC Reports (i) was prepared in accordance with generally accepted accounting principles ("GAAP") applied on a consistent basis throughout the periods involved (except as may be expressly described in the notes thereto) and (ii) fairly presents the consolidated financial position of the Company and its Subsidiaries as at the respective dates thereof and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements included in the Company's Form 10- Q reports were or are subject to normal and recurring year-end adjustments. Section 4.1.8. MATERIAL ADVERSE CHANGE Except as set forth on ITEM 4.1.8 ("Material Adverse Change") of the Disclosure Schedule hereto, since the date of the last audited Financial Statement, (i) there has been no material adverse change in the assets, liabilities or financial condition of the Company and its Subsidiaries from that reflected in such audited Financial Statement, except for changes in the ordinary course of business individually or in the aggregate and (ii) there has been no event that would result in a Material Adverse Effect. Section 4.1.9. EVENTS SUBSEQUENT TO THE DATE OF THE LAST FINANCIAL STATEMENT Since the date of the last audited Financial Statements, except as contemplated by this Agreement or as set forth in the balance sheet 15 included in the Company's Form 10-K for the period ending January 1, 2000 (the "BALANCE SHEET") or ITEM 4.1.9 ("Subsequent Events") of the Disclosure Schedule hereto, neither the Company nor any of its Subsidiaries has (i) issued any stock, bond or other corporate security other than in connection with the exercise of options issued pursuant to the Company's 1996 Stock Option Plan, (ii) borrowed any amount or incurred or become subject to any material liability (absolute, accrued or contingent), except liabilities under the Credit Facility, current liabilities incurred and liabilities under contracts entered into in the ordinary course of business, (iii) discharged or satisfied any lien or encumbrance or incurred or paid any obligation or liability (absolute, accrued or contingent) other than current liabilities shown on the Balance Sheet and current liabilities incurred since the date of the Balance Sheet in the ordinary course of business, (iv) declared or made any payment or distribution to stockholders or purchased or redeemed any of its capital stock (other than repurchases from employees permitted under the Other Financing Documents or any Indenture of the Company), (v) except in connection with the transactions contemplated by the Credit Facility, mortgaged, pledged or subjected to any lien or encumbrance any of its assets, tangible or intangible, other than liens for current real property taxes not yet due and payable, (vi) sold, assigned or transferred any of its tangible assets except in the ordinary course of business, or cancelled any debt or claim owed to the Company or any such Subsidiary except in the ordinary course of business, (vii) sold, assigned, transferred or granted any exclusive license with respect to any patent, trademark, trade name, service mark, copyright, trade secret or other intangible asset, (viii) suffered any substantial loss of property or waived any right of substantial value other than in the ordinary course of business, (ix) made any change in officer compensation except in the ordinary course of business and consistent with past practice, (x) made any material change in the manner of business or operations of the Company and its Subsidiaries taken as a whole, (xi) entered into any transaction except in the ordinary course of business or as otherwise contemplated hereby or (xii) entered into any commitment, obligation, understanding or other arrangement, contingent or otherwise, to effect, directly or indirectly, any of the foregoing. Section 4.1.10. ABSENCE OF UNDISCLOSED LIABILITIES Since the date of the last audited Financial Statement, neither the Company nor any of its Subsidiaries had any material loss contingency (as defined in Statement of Financial Accounting Standards No. 5), whether matured or unmatured, fixed or contingent, which is not fully reflected or provided for on the Balance Sheet or disclosed in a footnote thereto, except (i) obligations to perform under commitments or other obligations incurred in the ordinary course of business, (ii) tax and related liabilities which have been disclosed pursuant to ITEM 4.1.11 ("Taxes") of the Disclosure Schedule hereto and (iii) other liabilities as set forth on ITEM 4.1.10 ("Liabilities") of the Disclosure Schedule hereto or in the SEC Reports filed prior to the date hereof. Section 4.1.11. TAXES Except as set forth on ITEM 4.1.11 ("Taxes") of the Disclosure Schedule hereto, the Company has accurately completed and filed or will file within the time prescribed by law (including extensions of time approved by the appropriate taxing authority) all tax returns and reports required to be filed on behalf of the Company and each of its Subsidiaries with the Internal Revenue Service, the State of Delaware, any other states or governmental subdivisions and all foreign countries and has paid all taxes, interest, penalties, assessments or deficiencies shown to be due (or, to the knowledge of the Company, claimed by such authority or jurisdiction to be due) on or in respect of such tax returns and reports. The Company knows of (i) no other federal, state, county, municipal or foreign taxes (or other liabilities in respect thereof) 16 which are due and payable by the Company or any of its Subsidiaries which have not been so paid, (ii) no other material federal, state, county, municipal or foreign tax returns or reports which are required to be filed which have not been so filed, (iii) no other unpaid assessment for additional taxes or penalties for any fiscal period or any basis thereof and (iv) no material tax lien, whether imposed by any Federal, state, county, municipal or foreign taxing authority, outstanding against the assets or business of the Company or any of its Subsidiaries. The federal income tax returns of the Company and its Subsidiaries have been audited for the Company's 1991, 1992 and 1993 fiscal years and the state income tax returns of the Company and its Subsidiaries are currently being audited. Proper and accurate amounts have been withheld by the Company and its Subsidiaries from their respective employees for all periods in compliance with the tax, social security and any employment withholding provisions of applicable federal and state law, and proper and accurate federal and state returns have been filed by the Company for all periods for which returns were due with respect to employee income tax withholding, social security and unemployment taxes for the Company and its Subsidiaries, and the amounts shown thereon to be due and payable have been paid in full or provision therefor included on the books of the Company in accordance with and to the extent required by GAAP. The Company has not made any election under Section 341(f) of the Code. Section 4.1.12. LITIGATION Except as set forth on ITEM 4.1.12 ("Litigation") of the Disclosure Schedule hereto, there are no actions, suits, proceedings, orders, investigations or claims pending or, to the knowledge of the Company, threatened against or affecting the Company or any of its Subsidiaries, any of their respective assets or businesses or any of their respective directors or employees, at law or in equity, before any court, arbitration panel, tribunal or governmental department, commission, board, bureau, agency or instrumentality which would be required to be disclosed pursuant to Item 103 of SEC Regulation S-K in an Annual Report on Form 10-K being filed on the date hereof. Section 4.1.13. INSURANCE Except as set forth on ITEM 4.1.13 ("Insurance") of the Disclosure Schedule hereto, the Company holds valid policies in full force and effect covering all of the insurance required to be maintained by it pursuant to SECTION 6.2.4(G) hereof. Section 4.1.14. CONFLICTS OF INTERESTS Except as set forth on ITEM 4.1.14 ("Conflict of Interest") of the Disclosure Schedule hereto, neither the Company, nor any Subsidiary, nor, to the knowledge of the Company, any of their respective officers, employees, agents or any other Person acting on behalf of the Company or any such Subsidiary has, directly or indirectly, given or agreed to give any money, gift or similar benefit (other than legal price concessions to customers in the ordinary course of business) to any customer, supplier, employee or agent of a customer or supplier, or official or employee of any governmental agency or instrumentality of any government (domestic or foreign) or other Person who was, is, or may be in a position to help or hinder the business of the Company or any of its Subsidiaries (or assist in connection with any actual or proposed transaction) which (i) could reasonably be expected to subject the Company or any of its Subsidiaries to any damage or penalty in any civil, criminal or governmental litigation or proceeding, (ii) if not given in the past, could reasonably be expected to constitute a Material Adverse Effect, or (iii) if not continued in the future, could reasonably be expected to constitute a Material Adverse Effect. 17 Section 4.1.15. OTHER RELATIONSHIPS Except as set forth on ITEM 4.1.15 ("Other Relationships") of the Disclosure Schedule hereto, to the knowledge of the Company (a) the officers of the Company and its Subsidiaries have no interest (other than as non-controlling holders of securities of a publicly-traded company), either directly or indirectly, in any Person (whether as an employee, officer, director, shareholder, agent, independent contractor, security holder, creditor, consultant or otherwise) that presently (i) provides any services or designs, produces or sells any products or product lines, or engages in any activity which is the same, similar to or competitive with any activity or business in which the Company or any of its Subsidiaries is now engaged, (ii) is a supplier of, customer of, creditor of, or has an existing contractual relationship with, the Company or any of its Subsidiaries, or (iii) has any direct or indirect interest in any asset or property used by the Company or any of its Subsidiaries or any property, real or personal, tangible or intangible, that is necessary or desirable for the conduct of the business of the Company or any of its Subsidiaries; and (b) no current or former stockholder, director, officer or employee of the Company or any of its Subsidiaries, nor any Affiliate of any such Person, is at present, or has, since January 1, 1998, been, directly or indirectly through his affiliation with any other Person, a party to any transaction (other than as an employee) with the Company or any of its Subsidiaries providing for the furnishing of services by, or rental of real or personal property from, or otherwise requiring cash payments to any such person. Section 4.1.16. LICENSES; COMPLIANCE WITH LAWS, OTHER AGREEMENTS, ETC. Except as set forth on ITEM 4.1.16 ("Licenses") of the Disclosure Schedule hereto, the Company and its Subsidiaries have all franchises, permits, licenses and other rights, including, without limitation, all Approvals (governmental and otherwise), which are necessary or required for the conduct of the business of the Company and its Subsidiaries as currently conducted and as contemplated to be conducted (pursuant to the Merger) (collectively, the "LICENSES"), except where the failure to obtain such Licenses would not in the aggregate constitute a Material Adverse Effect. The Company knows of no basis upon which the renewal of any Licenses would be denied in the future. Each such License has been validly issued and is in full force and effect, and neither the Company nor any of its Subsidiaries is in violation of any such License, except where such violations would not in the aggregate constitute a Material Adverse Effect. Section 4.1.17. INTELLECTUAL PROPERTY RIGHTS AND GOVERNMENT APPROVALS Except as set forth on ITEM 4.1.17(A) ("Intellectual Property Rights") of the Disclosure Schedule hereto, the Company and its Subsidiaries have all patents, trademarks, service marks, trade names, copyrights, rights or licenses to use the same, and any and all applications therefor (collectively, the "INTELLECTUAL PROPERTY"), necessary to permit the Company and its Subsidiaries to conduct their business as currently conducted and as contemplated to be conducted, except where the failure to own or hold any Intellectual Property would not in the aggregate constitute a Material Adverse Effect. Except as set forth on ITEM 4.1.17(A) of the Disclosure Schedule hereto, neither the Company nor any of its Subsidiaries has received any formal or informal notice of infringement or other complaint that any of their operations infringe any rights under any Intellectual Property or any other proprietary rights of any other Person, nor does the Company or any of its Subsidiaries have any reason to believe that there has been any such 18 infringement that would constitute a Material Adverse Effect. Except as set forth on ITEM 4.1.17(B) ("Royalties and Other Fees") of the Disclosure Schedule hereto, no royalties, honorariums or fees are or will be payable by the Company or any of its Subsidiaries to any other Person by reason of the ownership or use by any of them of any Intellectual Property. Section 4.1.18. INVESTMENT COMPANY ACT The Company is not, and immediately after any Closing will not be, an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act. Section 4.1.19. BROKERS, ETC. Except as set forth on ITEM 4.1.19 ("Brokers") of the Disclosure Schedule hereto, the Company has not dealt with, nor is the Company obligated to pay any fee or commission in connection with, any broker, finder or other similar Person in connection with the offer or sale of the Preferred Stock or the Warrants or any of the transactions contemplated by this Agreement, any Related Document or any Other Financing Document. Section 4.1.20. PRIVATE SALE In connection with the Merger, the Company has not, either directly or through any agent, offered any Warrants, Preferred Stock or any other securities to, or solicited any offers to acquire any Warrants, Preferred Stock or any other Interests or securities from, or otherwise approached, negotiated or communicated in respect of any Warrants, Preferred Stock or any other Interests or securities with, any Person in such a manner as to require that the offer or sale of any such securities be registered pursuant to the `33 Act or any Blue Sky Laws. Section 4.1.21. DISCLOSURE Neither this Agreement, any Related Document, any Other Financing Document nor any of the exhibits, schedules or attachments hereto or thereto contain any untrue statement of a material fact or omits a material fact necessary to make each statement contained herein or therein not misleading; PROVIDED, HOWEVER, that with respect to any of the financial projections included therein the Company represents and warrants only that such projections were based upon assumptions reasonably believed by the Company to be reasonable and fair as of the date the projections were prepared in the context of the Company's history and current and reasonably foreseeable business conditions. Section 4.1.22. CONTRACTS AND COMMITMENTS. Except as described therein, ITEM 4.1.22 ("Contracts and Commitments") of the Disclosure Schedule hereto, sets forth a complete and correct list of all outstanding Indebtedness of the Company and its Subsidiaries as of the Closing Date. Neither the Company nor any Subsidiary is in default and no waiver of default is currently in effect, in the payment of any principal or interest on any Indebtedness of the Company or such Subsidiary and no event or condition exists with respect to any Indebtedness of the Company or any Subsidiary the outstanding principal amount of which exceeds $100,000 that would permit (or that with notice or the lapses of time, or both, would permit) one or more Persons to cause such Indebtedness to become due and payable before its stated maturity or before its regular scheduled dates of payment. Section 4.1.23. CUSTOMERS AND SUPPLIERS Set forth on ITEM 4.1.23 ("Customers and Suppliers") of the Disclosure Schedule hereto is a list of the ten largest customers of the Company and its Subsidiaries for each of the two most recent fiscal years, and set forth opposite the name of each such customer is the percentage of consolidated net sales attributable to such customer. Such 19 Disclosure Schedule also lists any additional current customers which the Company anticipates may be among the ten largest customers for the current fiscal year. Since the date of the Balance Sheet, no material supplier of the Company or any of its Subsidiaries has indicated that it shall stop, or materially decrease the rate of, supplying materials, products or services to the Company or any such Subsidiary, and, except as set forth on ITEM 4.1.23 of the Disclosure Schedule, no customer listed on the aforementioned Disclosure Schedule has indicated that it shall stop, or materially decrease the rate of, buying materials, products or services from the Company or any such Subsidiary. Section 4.1.24. EMPLOYEE MATTERS AND BENEFITS. (a) GENERAL. Except as set forth in the SEC Reports filed prior to the date hereof or on ITEM 4.1.24 ("Employee Benefit Plans") of the Disclosure Schedule hereto, neither the Company nor any of its Subsidiaries is a party to, participates in or has any liability (contingent or otherwise) with respect to: (i) any "employee welfare benefit plan" or "employee pension benefit plan" (as those terms are respectively defined in sections 3(1) and 3(2) of ERISA), other than a "multiemployer plan" (as defined in section 3(37) of ERISA); (ii) any retirement or deferred compensation plan, incentive compensation plan, stock plan, unemployment compensation plan, vacation pay, severance pay, bonus or benefit arrangement, insurance or hospitalization program or any other fringe benefit arrangements for any current or former employee, director, consultant or agent, whether pursuant to contract, arrangement, custom or informal understanding, which does not constitute an employee benefit plan (as defined in section 3(3) of ERISA); or (iii) any contract for the employment of any officer, individual employee or other Person on a full-time, part-time, consulting or other basis providing annual compensation in excess of $100,000 per annum. (b) PLAN DOCUMENTS AND REPORTS. A true and correct copy of each of the plans, arrangements, and agreements listed on ITEM 4.1.24 ("Employee Benefit Plans") of the Disclosure Schedule hereto (referred to hereinafter as "EMPLOYEE BENEFIT PLANS"), and all contracts relating thereto, or to the funding thereof, including, without limitation, all trust agreements, insurance contracts, administration contracts, investment management agreements, subscription and participation agreements, and recordkeeping agreements, each as in effect on the date hereof, has been made available to the Purchasers. In the case of any Employee Benefit Plan which is not in written form, an accurate description of such Employee Benefit Plan as in effect on the date hereof has been made available to the Purchasers. (c) COMPLIANCE WITH LAWS; LIABILITIES. Except as set forth in ITEM 4.1.24 ("Employee Benefit Plans") of the Disclosure Schedule hereto and except for cases that would not in the aggregate constitute a Material Adverse Effect (it being understood that for the purposes of this Section 4.1.24 only, Material Adverse Effect shall not exclude any unfunded liabilities under any Employee Benefit Plans), as to all Employee Benefit Plans: 20 (i) All Employee Benefit Plans comply and have been administered in form and in operation in all material respects with all applicable requirements of law, and no event has occurred which will or could reasonably be expected to cause any such Employee Benefit Plan to fail to comply with such requirements and no notice has been issued by any governmental authority questioning or challenging such compliance. (ii) All Employee Benefit Plans which are employee pension benefit plans comply in form and in operation with all applicable requirements of sections 401(a) and 501(a) of the Code; there have been no amendments to such plans which are not the subject of a favorable determination letter issued with respect thereto by the Internal Revenue Service; and, to the knowledge of the Company, no event has occurred which will or could reasonably be expected to give rise to disqualification of any such plan under such sections or to a tax under section 511 of the Code. (iii) None of the assets of any Employee Benefit Plan that is qualified under Sections 401(a) and 501(a) of the Code is invested in employer securities or employer real property. (iv) There have been no "prohibited transactions" (as described in section 406 of ERISA or section 4975 of the Code) with respect to any Employee Benefit Plan and neither the Company nor any Subsidiary has engaged in any prohibited transaction. (v) There have been no acts or omissions which have given rise to or could reasonably be expected to give rise to fines, penalties, taxes or related charges under section 502 of ERISA or Chapters 43, 47 or 68 of the Code for which the Company or any Subsidiary may be liable. (vi) None of the payments contemplated by the Employee Benefit Plans would, in the aggregate, constitute excess parachute payments (as defined in section 280G of the Code (without regard to subsection (b)(4) thereof)). (vii) There are no actions, suits or claims (other than routine claims for benefits) pending or, to the Company's knowledge, threatened involving any Employee Benefit Plan or the assets thereof and, to the knowledge of the Company, no facts exist which could reasonably be expected to give rise to any such actions, suits or claims (other than routine claims for benefits). (viii) No Employee Benefit Plan is subject to Title IV of ERISA. (ix) Each Employee Benefit Plan which constitutes a "group health plan" (as defined in section 607(1) of ERISA or section 4980B(g)(2) of the Code), including any plans of current and former affiliates which must be taken into account under sections 4980B and 414(t) of the Code or section 601 of ERISA, has been operated in compliance with applicable law, including 21 coverage requirements of section 4980B of the Code and section 601 of ERISA to the extent such requirements are applicable. (x) Neither the Company nor any Subsidiary has any liability or contingent liability for providing, under any Employee Benefit Plan or otherwise, any post-retirement medical or life insurance benefits, other than statutory liability for providing group health plan continuation coverage under Part 6 of Title I of ERISA and section 4980B of the Code. (xi) Actuarially adequate accruals for all obligations under the Employee Benefit Plans are reflected in the financial statements of the Company and such obligations include a pro rata amount of the contributions and the Pension Benefit Guaranty Corporation premiums which would otherwise have been made in accordance with past practices and applicable law for the plan years which include the Closing Date. (xii) There has been no act or omission that would impair the ability of the Company and its Subsidiaries (or any successor thereto) to unilaterally amend or terminate any Employee Benefit Plan. (d) MULTIEMPLOYER PLANS. Neither the Company nor any Subsidiary contributes to, has contributed to, or has any liability or contingent liability with respect to a multiemployer plan. Section 4.1.25. ENVIRONMENTAL MATTERS . Except as disclosed on ITEM 4.1.25 ("Environmental Matters") of the Disclosure Schedule hereto and except as would not be required to be disclosed in an Annual Report on Form 10-K with respect to the Company filed on the date hereof: (a) the business, operations and facilities (whether owned or leased) of the Company and its Subsidiaries, and all existing uses of and activities on or at any of the properties or facilities (whether owned or leased) of the Company and its Subsidiaries, are, to the Company's knowledge, in material compliance with all Environmental Laws in effect as of the date hereof, and no condition exists or event has occurred which, with or without notice or the passage of time or both, would constitute a violation of or give rise to any Lien under any Environmental Law; provided, however, that, with respect to any property or facility which is leased by the Company or any of its Subsidiaries, if the lessor of such leased property or facility has leased a portion thereof to a Person other than the Company or any of its Subsidiaries, the Company makes no representation or warranty under this clause (a) as to such other Person or other leased portion; (b) the Company and its Subsidiaries are in possession of all Environmental Permits necessary or desirable for the conduct or operation of its business (or any part thereof), and are in material compliance with all of the requirements, conditions and limitations included in such Environmental Permits; (c) to the Company's knowledge, there is no, and the Company and its Subsidiaries have not used or stored any, Hazardous Material in, on, 22 or at any of the properties or facilities now owned or leased by the Company or its Subsidiaries except for inventories of substances which are used or are to be used in the ordinary course of business (which inventories have been stored, used and disposed of in accordance with all applicable Environmental Laws and Environmental Permits, including all so-called "Right To Know Laws"); (d) the Company and its Subsidiaries have not received any notice, whether formal or informal, from any Governmental Authority or any other Person that any past or present aspect of the business, operations or facilities (whether owned or leased) of the Company or its Subsidiaries is in violation of any Environmental Law or Environmental Permit, or that the Company or its Subsidiaries is responsible or liable (or potentially responsible or liable) for the investigation, cleanup or remediation of any Hazardous Materials at any location; (e) the Company and its Subsidiaries have not at any time deposited or incorporated any Hazardous Material into, on, beneath, or adjacent to any property except in compliance in all material respects with all applicable Environmental Laws and in a manner which does not create any liability under Environmental Law; (f) the Company and its Subsidiaries are not the subject of any litigation or proceedings in any forum, judicial or administrative, involving a demand for damages, injunctive relief, penalties, or other potential liability with respect to violations of or liability under any Environmental Law; (g) the Company and its Subsidiaries timely filed all reports and notifications required to be filed with respect to all of their operations, properties and facilities (whether owned or leased) and have generated and maintained all required records and data under all applicable Environmental Laws; (h) neither the Company, its Subsidiaries nor, to the knowledge of the Company, any predecessor thereof has transported or arranged for the transportation of any Hazardous Material to any location which is listed or proposed for listing on the National Priorities List pursuant to CERCLA or on any similar state list; and (i) no condition exists or, to the knowledge of the Company, existed in the past, or event has occurred, with respect to any property that is currently or was at any time owned or leased by the Company or its Subsidiaries, or, to the knowledge of the Company, any predecessor to the Company or its Subsidiaries that is likely, with or without notice, passage of time or both, to give rise to any present or future liability of the Company or its Subsidiaries pursuant to any Environmental Law. Section 4.1.26. LENDING ACTIVITIES Except as disclosed on ITEM 4.1.26 ("Lending Activities") of the Disclosure Schedule, neither the Company nor any of its Subsidiaries currently or is expected to have a loan facility, credit facility, debt financing, line of credit or other extension of credit from any depository institution owned by The Chase Manhattan Corporation. 23 Section 4.1.27. TITLE TO PROPERTIES Except as disclosed in the SEC Reports filed prior to the date hereof or on ITEM 4.1.27 ("Title to Properties") of the Disclosure Schedule hereto, the Company and its Subsidiaries have, and on the Closing Date will have, good (and, with respect to real property, marketable) title to, and are, and on the Closing Date will be, the lawful owner of, (a) all of the tangible and intangible assets, properties and rights used in connection with the business of the Company and its Subsidiaries (except for those assets, properties and rights that the Company leases or otherwise has the right to use or as to which the failure to own or possess title would not reasonably be expected to have a Material Adverse Effect) and (b) all of the tangible and intangible assets, properties and rights reflected as owned by the Company and its Subsidiaries in the Financial Statements or the SEC Reports filed prior to the date hereof or ITEM 4.1.28 ("Assets") of the Disclosure Schedule hereto or ITEM 4.1.29 ("Real Property") of the Disclosure Schedule hereto (other than assets leased under the leases set forth in ITEM 4.1.28 ("Assets") of the Disclosure Schedule hereto or ITEM 4.1.29 ("Real Property") of the Disclosure Schedule hereto and assets disposed of in the ordinary course of business since the date of such Financial Statements or the most recently filed SEC Report). Section 4.1.28. CONDITION AND SUFFICIENCY OF ASSETS Except as disclosed on ITEM 4.1.28 ("Assets") of the Disclosure Schedule hereto, all of the tangible assets and properties of the Company and its Subsidiaries, whether real or personal, owned or leased, are in generally good operating condition and repair (with the exception of normal wear and tear), and are free from defects (other than such minor defects as do not either interfere with the intended use thereof in the conduct of normal operations), except where the failure to conform to such condition would not in the aggregate constitute a Material Adverse Effect. Immediately after the Closing Date, the Company and its Subsidiaries shall own or have the right to use all the assets, properties, rights, know-how, key personnel, processes and ability which are required for or currently used in connection with the operation of their business as presently conducted, except where the failure to have a right to use or own any thereof would not have a Material Adverse Effect. Section 4.1.29. REAL PROPERTY ITEM 4.1.29 ("Real Property") of the Disclosure Schedule hereto contains an accurate and complete list, as of the date of this Agreement, of all fee interests in real property and buildings and structures of the Company and its Subsidiaries. The Company and its Subsidiaries have good and indefeasible title in fee simple to all of the real property and buildings specified as owned by them in such ITEM 4.1.29 ("Real Property") of the Disclosure Schedule hereto, and have such title in all such listed real property and buildings as is required for the conduct of the business of the Company and its Subsidiaries, as presently conducted, in each case free and clear of all encumbrances, except: (A) Liens for taxes, easements or governmental charges or levies if the same shall not at the time be delinquent or thereafter can be paid without penalty, or are being contested in good faith by appropriate proceedings and are not material to the Company or its Subsidiaries; (B) such imperfections of title, if any, as do not individually or in the aggregate materially detract from the value or marketability of such real property as presently used or materially interfere with such real property's present, or to the knowledge of the Company, proposed use, or that in the aggregate would have a Material Adverse Effect; and 24 (C) Liens under the Other Financing Documents. EXCEPT AS SET FORTH IN ITEM 4.1.29 ("Real Property") of the Disclosure Schedule hereto, all of the buildings and structures to the extent owned by the Company or its Subsidiaries are in good operating condition and repair, suitable for the purposes for which they are being used and each has adequate rights of ingress and egress for the operation of the business of the Company and its Subsidiaries in the ordinary course of business. To the Company's knowledge, no building or structure to the extent owned by the Company or its Subsidiaries, or any appurtenance thereto or equipment therein, or the operation or maintenance thereof, violates any restrictive covenants or any provisions of any federal, state, local or foreign law, ordinance or zoning regulation, or encroaches on any property owned by others, except to the extent any such violation or encroachment would not (i) materially interfere with the use or adversely affect the value of such building, structure or appurtenance or (ii) have a Material Adverse Effect. No condemnation proceeding is pending or, to the knowledge of the Company, threatened with respect to any of the real property listed in ITEM 4.1.29 ("Real Property") of the Disclosure Schedule hereto nor to the knowledge of the Company, is any change in any of the foregoing laws, ordinances or regulations pending or threatened, which proceeding or change could reasonably be expected to materially interfere with the use or materially adversely affect the value of any of the real property listed in ITEM 4.1.29 ("Real Property") of the Disclosure Schedule hereto. Section 4.2. [Intentionally Omitted] ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS Section 5.1. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER Each of the Purchasers, severally, but not jointly, represents and warrants to the Company, as of the date hereof and the Closing Date, as follows: Section 5.1.1. POWER AND AUTHORITY Such Purchaser has full power and authority and has taken all required corporate action necessary to permit it to execute and deliver this Agreement and any Related Documents, Other Financing Documents and other documents or instruments related hereto or thereto that such Purchaser is a party to, and to carry out the terms hereof and thereof. None of the foregoing actions will (i) violate any provision of such Purchaser's by-laws, charter or other similar corporate documents, if applicable, (ii) result in the breach of or constitute a default under any contract, agreement or instrument to which such Purchaser is a party or by which it is bound or (iii) violate any order, writ, judgment, injunction, decree, statute, rule or regulation of any court, tribunal or governmental entity or authority applicable to or bearing upon such Purchaser or any of its assets or business, except for any such occurrences that would not constitute a Material Adverse Effect. Section 5.1.2. ENFORCEABILITY, ETC. This Agreement and each of the Related Documents to which such Purchaser is a party has been duly executed and delivered by the Purchaser and constitutes the legal, valid and binding obligation of such Purchaser enforceable against it in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, 25 reorganization, fraudulent conveyance or other similar laws affecting the enforcement of creditors' rights generally and general equitable principles. Section 5.1.3. PURCHASE FOR INVESTMENT Such Purchaser is purchasing the Purchased Securities for its own account and with no intention of distributing or reselling said Purchased Securities or any part thereof in any transaction that would be in violation of the securities laws of the United States of America or any state thereof. Section 5.1.4. FINANCIAL MATTERS Such Purchaser represents and warrants to the Company that it understands that the purchase of the Purchased Securities involves substantial risk and that such Purchaser's financial condition and investments are such that it is in a financial position to hold the Units and any Common Stock issued upon exercise of the Warrants for an indefinite period of time and to bear the economic risk of, and withstand a complete loss of, its investment in the Units and any Common Stock issued upon exercise of the Warrants. Such Purchaser represents that it is an "accredited investor" as that term is defined in Regulation D promulgated under the Securities Act, and that such Purchaser is a sophisticated investor, capable of evaluating the merits and risks of investing in the Company. Section 5.1.5. ACCESS TO PERSONNEL AND MATERIALS During the negotiation of the transactions contemplated herein, such Purchaser and its representatives have been afforded access to the Company's financial statements and records, have been afforded an opportunity to ask such questions of the Company's officers and employees concerning the Company's business, operations, financial condition, assets, liabilities and other relevant matters, and have been given all such information as has been requested, in order to evaluate the merits and risks of the prospective investment contemplated herein. Section 5.1.6. BROKERS, ETC. Such Purchaser has not dealt with any broker, finder or other similar Person in connection with the offer or sale of the Purchased Securities or any of the transactions contemplated by this Agreement as a result of which the Company would be obligated to pay any fee or commission. ARTICLE VI COVENANTS Section 6.1. [Intentionally Omitted] Section 6.2. POST-CLOSING DATE COVENANTS OF THE COMPANY The Company covenants and agrees that, at all times from and after the Closing Date, it shall perform, observe and comply with the covenants set forth in this SECTION 6.2. Section 6.2.1. USE OF PROCEEDS The Company shall use the proceeds of the sale of the Preferred Stock and Warrants only for the purposes described in SECTION 2.6 hereof. Section 6.2.2. INSPECTION OF PROPERTY Provided such Persons having access shall maintain the confidentiality of the information to which they have access, the Company shall permit any representatives designated by the Purchasers upon reasonable notice and during normal business hours, to (i) visit and 26 inspect any of the properties of the Company and its Subsidiaries, (ii) examine the corporate and financial records of the Company and its Subsidiaries and make copies thereof or extracts therefrom and (iii) discuss the affairs, finances and accounts of the Company and its Subsidiaries with the officers, key employees and independent accountants of the Company and its Subsidiaries. Section 6.2.3. COMPLIANCE WITH AGREEMENTS The Company shall perform, observe and comply, in all material respects, with all agreements, covenants and other obligations set forth herein, in the Related Documents, the Other Financing Documents, the Amended and Restated Certificate of Incorporation, By-laws and each other agreement, document or instrument related thereto by which the Company is bound. Section 6.2.4. AFFIRMATIVE COVENANTS The Company shall, and shall cause each Subsidiary to: (a) use all commercially reasonable efforts to cause to be done all things necessary to maintain, preserve and renew its corporate existence, all material Licenses, Approvals, authorizations and permits necessary to the conduct of its business, except where the failure to do so will not have a Material Adverse Effect; (b) maintain and keep its properties in good repair, working order and condition, and from time to time make all necessary repairs, renewals and replacements, so that its businesses may be properly conducted at all times; (c) pay and discharge when payable all taxes, assessments and governmental charges imposed upon its properties or upon the income or profits therefrom (in each case before the same becomes delinquent and before penalties accrue thereon) and all claims for labor, materials or supplies to the extent to which the failure to pay or discharge such obligations would reasonably be expected to have a material adverse effect upon the financial condition of the Company and its Subsidiaries, taken as a whole, unless and to the extent that the same are being contested in good faith and by appropriate proceedings and adequate reserves (as determined in accordance with GAAP, consistently applied) have been established on its books with respect thereto; (d) comply with all other material obligations which it incurs pursuant to any contract or agreement as such obligations become due to the extent to which the failure to so comply would reasonably be expected to have a material adverse effect upon the financial condition of the Company and its Subsidiaries, taken as a whole, unless and to the extent that the same are being contested in good faith and by appropriate proceedings and adequate reserves (as determined in accordance with GAAP, consistently applied) have been established on its books with respect thereto; (e) comply in all material respects with all applicable laws, rules and regulations of all governmental authorities, the violation of which would reasonably be expected to have a material adverse effect upon the financial condition of the Company and its Subsidiaries taken as a whole; 27 (f) maintain proper books of record and account which fairly present its financial condition and results of operations and make provisions on its financial statements for all such proper reserves as in each case are required in accordance with GAAP, consistently applied; and (g) maintain in full force and effect a policy or policies of standard comprehensive general liability insurance underwritten by a U.S. insurance company insuring its properties and business against such losses and risks, and in such amounts, as are adequate for its business and as are customarily carried by entities of similar size engaged in the same or similar business (such policies shall include property loss insurance policies, with extended coverage, sufficient in amount to allow the replacement of any of its tangible properties which might be damaged or destroyed by the risks or perils normally covered by such policies). Section 6.2.5. SBIC REGULATORY PROVISIONS. (a) The Company shall notify each Holder which is a SBIC (a "SBIC HOLDER") as soon as practicable (and, in any event, not later than 15 days) prior to taking any action after which the number of record holders of the Company's voting stock would be increased from fewer than 50 to 50 or more, and the Company shall notify each SBIC Holder of any other action or occurrence after which the number of record holders of the Company's voting stock was increased (or would increase) from fewer than 50 to 50 or more, as soon as practicable after the Company becomes aware that such other action or occurrence has occurred or is proposed to occur. (b) The Company shall give CVCA thirty (30) days prior notice before taking any affirmative steps which would cause the representations in SECTION 4.1.26 to be untrue, and the Company shall use its best efforts to notify CVCA promptly at any time in which the Company reasonably believes the representations contained in SECTION 4.1.26 to be untrue, whether as a result of the Company's affirmative actions or otherwise. Section 6.2.6. REGULATORY COMPLIANCE COOPERATION. (a) In the event that any SBIC Holder determines that it has a Regulatory Problem (as defined below), to the extent reasonably necessary, such SBIC Holder shall have the right to transfer its Warrants, Common Stock issued upon exercise of the Warrants and/or Preferred Stock to any (x) Affiliate or (y) to the extent an Event of Non-Compliance has not occurred and is not then continuing, with the consent of the Company (which consent shall not be unreasonably delayed or withheld), an unaffiliated third party without regard to any restrictions on transfer set forth in this Agreement or the Related Documents other than federal and state securities law restrictions (provided that the transferee agrees to acquire and assume the rights and obligations of such SBIC Holder under this Agreement), and the Company shall take all such actions as are reasonably requested by such SBIC Holder in order to (i) effectuate and facilitate such transfer by such SBIC Holder of any securities of the Company then held by such SBIC Holder to such Person, (ii) permit such SBIC Holder (or any of its Affiliates) to exchange all or any portion of voting Common Stock then held by it on a share-for-share basis for shares of a class of nonvoting Common Stock of the Company, which nonvoting Common Stock shall be identical in all respects to such voting Common Stock, except that such non-voting Common Stock shall be nonvoting and shall be convertible into voting Common Stock on such terms as are requested by such SBIC Holder in light of regulatory considerations then prevailing, (iii) continue and preserve the respective allocation of the voting interests 28 with respect to the Company arising out of the SBIC's ownership of voting securities and/or provided for in the Stockholders Agreement before the transfers and amendments referred to above (including entering into such additional agreements as are reasonably requested by such SBIC Holder to permit any Person(s) designated by such SBIC Holder to exercise any voting power which is relinquished by such SBIC Holder, and (iv) amend this Agreement, the Amended and Restated Certificate of Incorporation, and any other related documents, agreements or instruments to effectuate and reflect the foregoing. (b) For purposes of this Agreement, a "REGULATORY PROBLEM" means any set of facts or circumstances wherein it has been asserted by any governmental regulatory agency (or any SBIC Holder reasonably believes in good faith that there is a substantial risk of such assertion) that such SBIC Holder and its Affiliates are not entitled to hold, or exercise any significant right with respect to, any securities issued by the Company. Section 6.2.7. FURTHER ASSURANCES The Company will use its commercially reasonable efforts to cure promptly any defects in the creation and issuance of the Preferred Stock, Warrants and Common Stock issued upon exercise of Warrants, and in the execution and delivery of this Agreement. The Company, at its expense, will promptly execute and deliver to the Purchasers upon reasonable request all such other and further documents, agreements and instruments in compliance with or pursuant to its covenants and agreements herein, and will make any recordings, file any notices, and obtain any consents as may be reasonably necessary or appropriate in connection therewith. Section 6.2.8. RESERVATION AND AUTHORIZATION OF COMMON STOCK (a) The Company shall at all times reserve and keep available for issue upon the exercise or conversion of Warrants such number of its authorized but unissued shares of Common Stock as will be sufficient to permit the exercise in full of all outstanding Warrants. (b) Before taking any action which would result in an adjustment in the number of shares of Common Stock comprising a Stock Unit (as defined in the Warrants) or which would cause an adjustment reducing the Exercise Price (as defined in the Warrants) per share of Common Stock below the then par value, if any, of the shares of Common Stock issuable upon exercise of the Warrants, the Company shall take any corporate action which is necessary in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock free and clear of any liens upon the exercise of all the Warrants immediately after the taking of such action. (c) The Company will list on each national securities exchange (including Nasdaq) on which any Common Stock may at any time be listed, subject to official notice of issuance upon exercise of the Warrants, and will maintain such listing of, all shares of Common Stock from time to time issuable upon the exercise of the Warrants. SECTION 6.2.9. FINANCIAL STATEMENTS; INFORMATION (a) The Company shall provide the Purchasers with all financial statements and information pursuant to Section 2.4 of the Stockholders Agreement as if each Purchaser was a "Qualified Holder" as defined thereunder. 29 (b) The Company shall provide the Purchasers with all financial statements and other information provided to the lenders pursuant to the Credit Facility. Section 6.2.10. FORM 1099 After having made due inquiry, the Company will not take the position in any respect for federal, state or local income tax purposes that there is any actual or constructive dividend paid to any holder of Preferred Stock based on the terms thereof (other than in connection with distributions in respect of, or redemptions of, Preferred Stock paid in cash), unless advised by counsel or the Company's independent accountants in writing that there is no reasonable basis for the Company to take the position adopted in this Section 6.1.10. ARTICLE VIA REGISTRATION RIGHTS IN RESPECT OF REGISTRABLE SECURITIES Section 6A.1 NOTICE If at any time on or after the Closing Date, the Company proposes to effect the registration of all or any part of any equity securities of the Company, whether as a primary registration or as a registration of securities requested by a stockholder, under the Securities Act, the Company shall promptly, and in any event at least 30 days prior to the effective date of the proposed registration statement, give written notice of such proposed registration to all holders of Registrable Securities. Each holder of Registrable Securities that wishes to register any of its Registrable Securities (each, a "SELLER") shall, within 20 days after receipt of such notice from the Company, deliver to the Company a notice (a "SELLER NOTICE") stating that such Seller wishes to participate in such offering and setting forth the number of shares of Registrable Securities that such Seller desires to include in such offering. The Company thereupon shall as expeditiously as possible use its best efforts (or in the case of the Company's initial registered public offering of equity securities under the Securities Act, reasonable efforts) to effect the registration under the Securities Act of such shares of Registrable Securities, subject in all cases to a determination by the managing underwriter, or financial adviser, as the case may be, that the registration of such Registrable Securities will not jeopardize the success of the proposed offering. Section 6A.2 PRORATION If the underwriter (or, if the offering is not underwritten, an independent financial advisor to the Company) determines that marketing factors require a limitation on the number of securities to be offered and sold in the offering, including securities requested to be offered and sold by Sellers, there shall be included in the offering only that number of securities that the underwriter, or financial advisor, as the case may be, believes will not jeopardize the success of the offering. Any reduction in the number of securities to be so offered shall be pro-rata among the Sellers and all other Persons (other than the Company or securityholders who are exercising "demand" registration rights), proposing to sell securities pursuant to such offering, based on the number of securities originally proposed to be sold by each such person. NOTHING CONTAINED HEREIN SHALL BE CONSTRUED TO LIMIT IN ANY WAY THE COMPANY'S RIGHT, IN ITS SOLE DISCRETION, TO WITHDRAW ANY REGISTRATION STATEMENT BEFORE SUCH REGISTRATION STATEMENT BECOMES EFFECTIVE OR TO POSTPONE THE OFFERING OF SECURITIES CONTEMPLATED BY ANY SUCH REGISTRATION STATEMENT. 30 SECTION 6A.3 REGISTRATION PROCEDURES If and whenever the Company is required by the provisions of Section 6A.1 hereof to use its best efforts, or reasonable efforts, as the case may be, to effect the registration of any Registrable Securities under the Securities Act, the Company shall, as expeditiously as possible, (i) prepare and file with the SEC a registration statement with respect to such securities and use its best efforts (or reasonable efforts, as applicable) to cause such registration statement to become and remain effective for a period of not less than 120 days in the case of the Company's initial registration of equity securities under the Securities Act and 90 days in the case of any subsequent registration, or such shorter period as is necessary to permit the sale of such securities in accordance with the plan of distribution chosen by the Seller or Sellers and the underwriter; (ii) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all securities covered by such registration statement; (iii) furnish to each Seller such numbers of copies of a prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents, as such Seller may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Seller; (iv) use its best efforts to register or qualify the securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions within the United States as each Seller shall reasonably request, and do such other reasonable acts and things as may be requested of it to enable such Seller to consummate the public sale or other disposition in such jurisdictions of the securities owned by such Seller, except that the Company shall not for any such purpose be required to (i) qualify to do business as a foreign corporation in any jurisdiction wherein it is not so qualified, (ii) subject itself to taxation in any jurisdiction solely by reason of such registration or qualification or (iii) consent to general service of process in any jurisdiction; (v) use its best efforts to cause the securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Seller or Sellers thereof to consummate the disposition of such securities, except that the Company shall not for any such purpose be required to (i) qualify to do business as a foreign corporation in any jurisdiction wherein it is not so qualified, (ii) subject itself to taxation in any jurisdiction solely by reason of such registration or qualification or (iii) consent to general service of process in any jurisdiction; (vi) notify each Seller of any securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the Company's becoming aware that the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact 31 required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing (upon receipt of which each Seller agrees to forthwith cease making offers and sales of such securities pursuant to such prospectus and to deliver to the Company any copies of such prospectus then in the possession of such Seller), and at the request of any such Seller promptly prepare and furnish to such Seller a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing; (vii) make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve months, but not more than eighteen months, beginning with the first full calendar month after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 promulgated thereunder (or any successor provision); (viii) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC; (ix) use its best efforts to list such securities on any securities exchange on which similar securities then issued by the Company are then listed, or, if not so listed, on a national securities exchange (including the Nasdaq stock market), if the listing of such securities is then permitted under the rules of such exchange; (x) provide a transfer agent and registrar for all the securities covered by such registration statement not later than the effective date of such registration statement; (xi) enter into such agreements (including an underwriting agreement in customary form containing without limitation customary indemnity and contribution provisions for the benefit of the underwriter or underwriters and the Seller or Sellers) and take such other actions as the Seller or Sellers shall reasonably request in order to expedite or facilitate the disposition of such securities; (xii) make available for inspection by any Seller of securities covered by such registration statement, by any underwriter participating in any disposition to be effected pursuant to such registration statement and by any attorney, accountant or other agent retained by any such Seller or any such underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Company's officers, directors and employees to supply all information reasonably requested by any such Seller, underwriter, attorney, accountant or agent in connection with such registration statement; and (xiii) permit any Seller of securities covered by such registration statement to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Seller should be included. 32 IF ANY SUCH REGISTRATION OR COMPARABLE STATEMENT REFERS TO ANY SELLER BY NAME OR OTHERWISE AS THE HOLDER OF ANY SECURITIES OF THE COMPANY, THEN SUCH SELLER SHALL HAVE THE RIGHT TO REQUIRE (A) THE INSERTION THEREIN OF LANGUAGE, IN FORM AND SUBSTANCE SATISFACTORY TO SUCH SELLER, TO THE EFFECT THAT THE HOLDING BY SUCH SELLER OF SUCH SECURITIES IS NOT TO BE CONSTRUED AS A RECOMMENDATION BY SUCH SELLER OF THE INVESTMENT QUALITY OF THE COMPANY'S SECURITIES COVERED THEREBY AND THAT SUCH HOLDING DOES NOT IMPLY THAT SUCH SELLER WILL ASSIST IN MEETING ANY FUTURE FINANCIAL REQUIREMENTS OF THE COMPANY, OR (B) IN THE EVENT THAT SUCH REFERENCE TO SUCH SELLER BY NAME OR OTHERWISE IS NOT REQUIRED BY THE SECURITIES ACT, THE DELETION OF THE REFERENCE TO SUCH SELLER. The Company may require each holder of Registrable Securities to, and each such holder, as a condition to including Registrable Securities in such registration, shall, furnish the Company with such information and affidavits regarding such holder and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration. If so required, each holder of Registrable Securities participating in an underwritten public offering shall enter into and perform its obligations under an underwriting agreement, as well as a custody agreement and power of attorney, all in usual and customary form. Section 6A.4 HOLDBACK ON SALES The Company and the Purchasers hereby agree on and after the Closing Date not to effect any public sale or distribution of any securities similar to those registered in accordance with Section 6A.3 hereof during the 14 day period prior to, and during the 180 day period beginning on, the effective date of any registration statement (except as part of such registration statement). Section 6A.5 EXPENSES All expenses incurred in complying with this Article VIA, including, without limitation, all registration, filing, securities exchange listing fees and fees of any applicable stock exchange, all registration, filing, qualification and other fees and expenses of complying with securities or blue sky laws of any jurisdiction, all word processing, duplicating and printing expenses, messenger and delivery expenses, and the fees and disbursements of counsel and accountants for the Company, the reasonable fees and disbursements of one counsel for the Seller or the Sellers (to be chosen by the Seller or by the Sellers holding a majority of the Preferred Stock to be included by Sellers in a registration statement), expenses of any special audits incident to or required by any such registration, shall be paid by the Company; provided, that in no event shall the Company be required to pay any underwriting discounts, commissions or fees attributable to the sale of Registrable Securities by a Seller hereunder. ARTICLE VIB [INTENTIONALLY OMITTED] ARTICLE VIC INDEMNIFICATION IN RESPECT OF REGISTRATION RIGHTS SECTION 6C.1 INDEMNIFICATION BY THE COMPANY In the event of any registration by the Company of any of its Registrable Securities pursuant to Article 6A, the Company shall, and 33 hereby agrees to, to the full extent permitted by applicable law, indemnify and hold harmless each seller of Registrable Securities pursuant to Article 6A ("each, an INDEMNIFIED SELLER"), and their respective general or limited partners, directors, officers, employees and each other Person, if any, who controls such Indemnified Seller within the meaning of the Securities Act, against any Losses to which any such Indemnified Seller or any such other Person may become subject under the Securities Act or otherwise, insofar as such Losses (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the applicable registration statement, any preliminary prospectus, final prospectus or summary prospectus contained therein, or any amendment or supplement thereto, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in the light of the circumstances under which they were made) not misleading, and the Company will reimburse the Indemnified Sellers and each such other Person for any legal or any other expenses reasonably incurred by them in connection with investigating or defending any such Loss (or action or proceeding in respect thereof); PROVIDED that the Company shall not be liable in any such case to the extent that any such Loss (or action or proceeding in respect thereof) arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, preliminary prospectus, final prospectus, summary prospectus, amendment or supplement in reliance upon and in conformity with written information furnished to the Company by the Indemnified Seller specifically for use in the preparation thereof; PROVIDED FURTHER, however that with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus, the indemnity agreement contained in this paragraph shall not apply to the extent that any such Loss results from the fact that a current copy of the prospectus was not sent or given to the person asserting any such Loss at or prior to the written confirmation of the sale of the securities concerned to such person if the Company had prior thereto given the Indemnified Seller the notice referred to in Section 6A.3(vi) and provided to such Indemnified Seller a supplemented or amended prospectus as contemplated by Section 6A.3(vi) and such current copy of the prospectus would have cured the defect giving rise to such Loss. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such seller or any such other Person, and shall survive the transfer of such securities by such seller. The Company shall also indemnify each other Person who participates (including as an underwriter) in the offering or sale of Registrable Securities, their partners, officers, directors, employees and each other Person, if any, who controls any such participating Person within the meaning of the Securities Act to the same extent as provided above with respect to Indemnified Sellers. SECTION 6C.2 INDEMNIFICATION BY THE SELLERS Each Indemnified Seller, as a condition to including its securities in the applicable registration statement, shall, to the full extent permitted by law, indemnify and hold harmless the Company, its directors, officers, employees, agents and each other Person, if any, who controls the Company within the meaning of the Securities Act, against any Losses to which the Company or any such other Person may become subject under the Securities Act or otherwise, insofar as such Losses (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such registration statement, any preliminary prospectus, final prospectus or summary prospectus contained therein, or any amendment or supplement thereto, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein 34 (in the case of a prospectus, in the light of the circumstances under which they were made) not misleading, if such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company by such Indemnified Seller specifically for use in the preparation thereof; PROVIDED, HOWEVER, that the obligation to provide indemnification pursuant to this Section 6C.2 shall be several, and not joint and several, among each of the Indemnified Sellers on the basis of the number of securities included by each in the applicable registration statement and the aggregate amount which may be recovered from any holder of securities pursuant to the indemnification provided for in this Section 6C.2 in connection with any sale of Registrable Securities shall be limited to the total proceeds received by such holder from the sale of such securities. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Company or any such other Person and shall survive the transfer of such securities by an Indemnified Seller. SECTION 6C.3 NOTICES OF CLAIMS, ETC. Promptly after receipt by a party entitled to indemnity under this Article 6C of notice of the commencement of any action or proceeding (including a governmental action or proceeding) involving a claim referred to in Section 6C.1. or 6C.2 (a "PROCEEDING"), such indemnified party will, if a claim in respect thereof is to be made against a person obligated to provide indemnity under this Article 6C pursuant to such provisions, give written notice to the latter (in the manner provided in Section 8.6 hereof) of the commencement of such Proceeding; but the omission so to notify the indemnifying party will not relieve the indemnifying party from any liability which the indemnifying party may have to any party entitled to indemnity under this Article 6C except to the extent that the indemnifying party is materially prejudiced thereby. The indemnifying party shall have the right, exercisable by giving written notice to an indemnified party promptly after the receipt of written notice from such indemnified party of such Proceeding, to assume, at its expense, the defense of any such Proceeding with counsel reasonably satisfactory to such indemnified party; PROVIDED, HOWEVER, that an indemnified party shall have the right to employ separate counsel in any such Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (1) the indemnifying party agrees to pay such fees and expenses, (2) the indemnifying party fails to assume promptly the defense of such Proceeding or fails to employ counsel reasonably satisfactory to such indemnified party or (3) the indemnified party shall have been advised by counsel, in its reasonable judgment, that there is reasonably likely to be a conflict between the positions of such indemnified party and any other party represented by such counsel in such Proceeding which makes it improper, under generally acceptable standards of professional conduct, for the same counsel to represent both the indemnified party and such other party; PROVIDED that the indemnifying party shall not, in connection with any one such Proceeding or separate but substantially similar or related Proceedings, be liable for the fees and expenses of more than one separate firm of attorneys for all such indemnified parties. The indemnifying party will not be subject to any liability for any settlement made without its consent (which will not be unreasonably delayed or withheld); PROVIDED that, if such Proceeding is settled with its written consent or if there shall be a final judgment for the claimant or plaintiff in such Proceeding, the indemnifying party shall indemnify and hold harmless the indemnified party from and against any Losses by reason of such settlement or judgment for which such indemnified party would be entitled to indemnification hereunder. The indemnifying party shall not, without the consent of an indemnified party, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release, in form and 35 substance satisfactory to such indemnified party, from all liability in respect of such Proceeding for which such indemnified party would be entitled to indemnification hereunder. Section 6C.4 CONTRIBUTION If the indemnification provided for in this Article 6C is unenforceable although available to an indemnified party in respect of any Losses referred to therein or is insufficient to hold an indemnified party harmless for any Losses in respect of which the provisions of Section 6C.1 and/or 6C.2 would otherwise apply by their terms, then the indemnifying party shall contribute to the aggregate amount paid or payable by the indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party on the other hand in connection with statements or omissions which resulted in such Losses, as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or the indemnified party and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The amount paid by an indemnified party as a result of the Losses referred to above shall be deemed to include any legal and other expenses reasonably incurred by such indemnified party in connection with investigating or defending any Loss which is the subject of this paragraph. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6C.4 were to be determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. ARTICLE VII TERMINATION Section 7.1. TERMINATION (a) This Agreement may be terminated at any time prior to the Closing: (i) by mutual consent of the Company and the Purchasers; (ii) by either the Company or the Purchasers if the Closing shall not have occurred by May 31, 2000; PROVIDED, HOWEVER, that the failure to consummate the transactions contemplated hereby is not a result of the failure by the party so electing to terminate this Agreement to perform any of its obligations hereunder; (iii) by either the Company or the Purchasers if a material breach of any provision of this Agreement has been committed by a party other than the party so electing and such breach has not been satisfied, cured or waived; or 36 (iv) by the Company or the Purchasers, if any of the respective conditions to such Person's performance set forth in SECTION 3.1, 3.2 or 3.3 hereof, as applicable, have not been satisfied or waived as of the Closing Date or if satisfaction of any such a condition is or becomes impossible (other than through the failure of the Person seeking to terminate this Agreement pursuant to this CLAUSE (IV) to comply with any of its respective obligations under this Agreement). (b) If the Closing has not occurred on or prior to May 31, 2000, this Agreement shall automatically terminate unless the parties hereto unanimously agree, in writing on or prior to such date, to postpone such termination. Section 7.2. EFFECT OF TERMINATION If this Agreement shall be validly terminated pursuant to SECTION 7.1, all obligations, representations and warranties of the parties hereto under this Agreement shall terminate and there shall be no liability of any party to another party, except as otherwise expressly provided herein. ARTICLE VIII MISCELLANEOUS Section 8.1. PAYMENT OF COSTS AND EXPENSES If the Closing occurs, the Company agrees to pay on demand all reasonable expenses of each of the Purchasers (including the reasonable fees and out-of-pocket expenses of Milbank, Tweed, Hadley & McCloy, special counsel to the Purchasers) in connection with: (a) the evaluation of the transactions contemplated hereunder; the review, negotiation, preparation, execution and delivery of this Agreement and the Related Documents and the review of the Other Financing Documents, in each case including schedules and exhibits, and any other documents, agreements or instruments related hereto or thereto; the evaluation of the transactions thereunder; and any amendments, waivers, consents, supplements or other modifications hereto or thereto as may from time to time hereafter be required, whether or not the transactions contemplated hereby are consummated; and (b) the preparation and/or review of the form of any document or instrument relevant to the transactions contemplated hereby, by the Related Documents, the Other Financing Documents or any other document or instrument related hereto or thereto. THE COMPANY FURTHER AGREES TO PAY, AND TO SAVE THE PURCHASERS HARMLESS FROM ALL LIABILITY FOR, ANY STAMP OR OTHER SIMILAR TAXES WHICH MAY BE PAYABLE IN CONNECTION WITH THE EXECUTION OR DELIVERY OF THIS AGREEMENT, THE ISSUANCE AND SALE OF PREFERRED STOCK OR WARRANTS OR THE COMMON STOCK ISSUABLE UPON EXERCISE OF THE WARRANTS. THE COMPANY ALSO AGREES TO REIMBURSE EACH PURCHASER UPON DEMAND FOR ALL REASONABLE OUT-OF-POCKET EXPENSES (INCLUDING ATTORNEYS' FEES AND LEGAL EXPENSES) INCURRED BY SUCH PURCHASER IN CONNECTION WITH SUCH PURCHASER'S ENFORCEMENT OF THE COMPANY'S OBLIGATIONS HEREUNDER OR UNDER THE RELATED DOCUMENTS. Section 8.2. [Intentionally Omitted] 37 Section 8.3. BROKERAGE Each party hereto will indemnify and hold harmless the others against and in respect of any claim for brokerage or other commission relative to this Agreement or to the transaction contemplated hereby, based in any way on agreements, arrangements or understandings made or claimed to have been made by such party with any third party. Section 8.4. [Intentionally Omitted] Section 8.5. ASSIGNMENT; PARTIES IN INTEREST Neither this Agreement nor any right, interest or obligation hereunder may be assigned by the Company, without the prior written consent of the Purchasers (which consent shall not be unreasonably withheld), and any attempt to do so will be void. Except as set forth in the preceding sentence, all covenants, agreements, rights and obligations contained in or arising out of this Agreement by or on behalf of any of the parties hereto shall bind and inure to the benefit of the respective legal representatives, successors and assigns of the parties hereto whether so expressed or not. Section 8.6. NOTICES All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement or any Related Document shall be in writing and shall be deemed to have been given when delivered personally to the recipient, sent to the recipient by reputable express courier service (charges prepaid), mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid, or sent by telecommunications facsimile. Such notices, demands and other communications shall be sent to the Company and the Purchasers at the addresses (or facsimile numbers) set forth below their respective names on SCHEDULE II hereto or to such other address (or facsimile number) or to the attention of such other Person as the recipient party has specified by prior written notice to the sending party. Section 8.7. NO WAIVER No failure to exercise and no delay in exercising any right, power or privilege granted under this Agreement shall operate as a waiver of such right, power or privilege. No single or partial exercise of any right, power or privilege granted under this Agreement shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies provided in this Agreement are cumulative and are not exclusive of any rights or remedies provided by law. Section 8.8. AMENDMENT This Agreement may be modified or amended only by a writing signed by or on behalf of the Company and the Purchasers. SECTION 8.9. SURVIVAL OF REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS The representations, warranties, covenants and agreements contained in this Agreement or any other instrument delivered pursuant to this Agreement shall survive the Closing hereunder. Section 8.10. GOVERNING LAW The corporate law of Delaware shall govern all issues concerning the relative rights of the Company and its shareholders. All other issues hereunder shall be governed by and construed in accordance with the procedural and substantive laws of the State of New York without regard for its conflicts of laws rules. The Company agrees that it may be served with process in the State of New York and any action for breach of this Agreement may be prosecuted against it in the courts of that State. 38 SECTION 8.11. SPECIFIC PERFORMANCE Damages in the event of breach of this Agreement by either the Company or the Purchasers would be difficult, if not impossible, to ascertain, and it is therefore agreed that the Company and the Purchasers, in addition to and without limiting any other remedy or right it may have, will have the right to an injunction or other equitable relief in any court of competent jurisdiction, enjoining any such breach, and enforcing specifically the terms and provisions hereof, and the Company and the Purchasers hereby waive any and all defenses it may have on the ground of lack of jurisdiction or competence of the court to grant such an injunction or other equitable relief. The existence of this right will not preclude the Company or the Purchasers from pursuing any other rights and remedies at law or in equity which the Company or the Purchasers may have. SECTION 8.12. ENTIRE UNDERSTANDING This Agreement expresses the entire understanding of the parties and supersedes all other prior and contemporaneous agreements and undertakings of the parties with respect to the subject matter of this Agreement. Section 8.13. COUNTERPARTS This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which taken together shall constitute one agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal as of the date first above written. BPC HOLDING CORPORATION By: /S/ JAMES M. KRATOCHVIL Name: James M. Kratochvil Title: Executive Vice President, Chief Financial Officer, Treasurer and Secretary CHASE VENTURE CAPITAL ASSOCIATES, LLC By: Chase Capital Partners, its Investment Manager By: /S/ RICK WATERS Name: Rick Waters Title: General Partner - Mezzanine THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY By: /S/ RICHARD A. STRAIT Name: Richard A. Strait Title: Its Authorized Representative DISCLOSURE SCHEDULE ITEM 4.1.1 Company and Existing Subsidiaries (Name, Jurisdiction of Incorporation) ITEM 4.1.2 Power and Authority ITEM 4.1.5 Consents and Approvals ITEM 4.1.6 Pro Forma Balance Sheet ITEM 4.1.7 Financial Statements ITEM 4.1.8 Material Adverse Change ITEM 4.1.9 Subsequent Events ITEM 4.1.10 Liabilities ITEM 4.1.11 Taxes ITEM 4.1.12 Litigation ITEM 4.1.13 Insurance ITEM 4.1.14 Conflict of Interest ITEM 4.1.15 Other Relationships ITEM 4.1.16 Licenses ITEM 4.1.17(a) Intellectual Property Rights ITEM 4.1.17(b) Royalties and Other Fees ITEM 4.1.19 Brokers ITEM 4.1.22 Contracts and Commitments ITEM 4.1.23 Customers and Suppliers ITEM 4.1.24 Employee Benefit Plans ITEM 4.1.25 Environmental Matters ITEM 4.1.26 Lending Activities ITEM 4.1.27 Title to Properties ITEM 4.1.28 Assets ITEM 4.1.29 Real Property SCHEDULE I PURCHASER INFORMATION
INVESTOR UNITS SERIES A-1 NON-VOTING WARRANT PURCHASE PRICE PREFERRED STOCK ($) SHARES Chase Venture Capital 600 600,000 15,599 15,000,000 Associates, LLC The Northwestern 400 400,000 10,398 10,000,000 Mutual Life Insurance Company
SCHEDULE II ADDRESSES If to the Company: BPC Holding Corporation 101 Oakley Street P.O. Box 959 Evansville, IN 47706-0959 Telecopier: (812) 421-9604 Attention: Mr. Martin R. Imbler with copies to: First Atlantic Capital, Ltd. O'Sullivan, Graev & Karabell, LLP 135 East 57th Street 30 Rockefeller Plaza 29th Floor 41st Floor New York, NY 10022 New York, NY 10112 Telecopier: (212) 750-0954 Telecopier: (212) 408-2420 Attention: Mr. Roberto Buaron Attention: Michael J. O'Brien, Esq. If to Chase Venture Capital Associates, LLC: Chase Venture Capital Associates, LLC 380 Madison Avenue 12th Floor New York, New York 10017 Telecopier: (212) 622-3950 Attention: John M.B. O'Connor with copies to: Milbank, Tweed, Hadley & McCloy LLP One Chase Manhattan Plaza New York, New York 10005 Telecopier: (212) 530-0219 Attention: John T. O'Connor, Esq. If to Northwestern: The Northwestern Mutual Life Insurance Company 720 East Wisconsin Avenue Milwaukee, Wisconsin 53202 Telecopier: (414) 299-7124 Attention: Securities Department SCHEDULE III CAPITALIZATION SCHEDULE OF THE COMPANY SCHEDULE IV CONSENTS RELATING TO THE PURCHASERS None. EX-4.2 4 WARRANT THE TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE CONDITIONS SPECIFIED IN THAT CERTAIN PREFERRED STOCK AND WARRANT PURCHASE AGREEMENT DATED AS OF MAY 9, 2000 (THE "PURCHASE AGREEMENT"), BY AND AMONG BPC HOLDING CORPORATION, A DELAWARE CORPORATION (THE "ISSUER"), CHASE VENTURE CAPITAL ASSOCIATES, LLC AND THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, AS SUCH PURCHASE AGREEMENT MAY BE MODIFIED AND SUPPLEMENTED AND IN EFFECT FROM TIME TO TIME, AND NO TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE SHALL BE VALID OR EFFECTIVE UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED. A COPY OF THE PURCHASE AGREEMENT IS ON FILE AND MAY BE INSPECTED AT THE PRINCIPAL EXECUTIVE OFFICE OF THE ISSUER. THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND BY THE PROVISIONS OF THE PURCHASE AGREEMENT. THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, AND ACCORDINGLY, SUCH SECURITIES MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH THE REGISTRATION OR QUALIFICATION PROVISIONS OF APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR APPLICABLE EXEMPTIONS THEREFROM. No. of Stock Units: 15,599 Warrant No. CBNV-1 WARRANT to Purchase Class B Non-Voting Common Stock of BPC HOLDING CORPORATION THIS IS TO CERTIFY THAT CHASE VENTURE CAPITAL ASSOCIATES, LLC, or its registered assigns, is entitled to purchase in whole or in part from time to time from BPC Holding Corporation, a Delaware corporation (the "ISSUER"), at any time on and after the Effective Date (as hereinafter defined), but not later than 5:00 p.m., New York time, on May 9, 2010 (the "EXPIRATION DATE"), 15,599 Stock Units (as hereinafter defined and subject to adjustment as provided herein) at a purchase price of $0.01 per Stock Unit (the "EXERCISE PRICE"), subject to the terms and conditions provided herein and in the Purchase Agreement (as hereinafter defined). This Warrant is issued pursuant to the Preferred Stock and Warrant Purchase Agreement dated as of May 9, 2000 (as modified and supplemented and in effect from time to time, the "PURCHASE AGREEMENT") between the Issuer, Chase Venture Capital Associates, LLC and The Northwestern Mutual Life Insurance Company. SECTION 1. CERTAIN DEFINITIONS. (a) Each capitalized term used herein without definition shall have the meaning assigned thereto (or incorporated by reference) in the Purchase Agreement and in the Exhibits thereto. (b) As used herein, the following terms shall have the following meanings (all terms defined in this Section 1 or in other provisions of this Warrant in the singular to have the same meanings when used in the plural and vice versa): "AFFILIATE" means, with respect to any specified Person, any other Person which, directly or indirectly, controls, is under common control with, or is owned or controlled by, such specified Person. For purposes of this definition, (i) "control" means, with respect to any specified Person, either (x) the beneficial ownership of more than 30 percent of any class of equity securities or (y) the power to direct the management or policies of the specified Person through the ownership of voting securities, by contract, voting agreement or otherwise and (ii) the terms "controlling", "control with" and "controlled by", etc., shall have meanings correlative to the foregoing. "BOARD" shall mean the Board of Directors of the Issuer. "BUSINESS DAY" shall mean any day on which commercial banks are not authorized or required to close in New York City. "CLASS B COMMON STOCK" means, the Issuer's Class B Non-Voting Common Stock, $.01 par value per share, or any other common stock or other securities receivable thereon, or into which the Class B Common Stock is convertible or exchangeable, as a result of any recapitalization, reclassification, merger or consolidation of, or deposition of assets by, the Issuer. "COMMON STOCK" shall mean the Common Stock of the Issuer, of any class or series whatsoever, or any other common stock or other securities receivable thereon, or into which the Common Stock is convertible or exchangeable, as a result of any recapitalization, reclassification, merger or consolidation of, or disposition of assets by, the Issuer. "CURRENT MARKET PRICE", shall mean, with respect to a share of Common Stock as of any date (a) for a period of 30 Business Days after the date of the IPO, the offering price of such Common Stock or (b) in any other case (i) the fair market value per share of such Common Stock, as reasonably determined in good faith by the Board, using an appropriate valuation method, assuming an arms-length sale to an independent party of all of the Common Stock of the Issuer, without giving regard to the lack of liquidity of such Common Stock due to any restrictions contained in the Stockholders Agreement, the Purchase Agreement or otherwise or any discount for minority interests and assuming the conversion or exchange of all securities then outstanding which are convertible into or exchangeable for such Common Stock and the exercise of all rights and warrants (including the Warrants) then outstanding and exercisable to purchase shares of such Common Stock or securities convertible into or exchangeable for shares of such Common Stock, or (ii) if there shall be a public market for such Common Stock, the average of the daily market prices for each day during the 30 consecutive trading days commencing 45 Business Days before such date as of which such a price can be 2 established in the manner set forth below. The market price for each such Business Day shall be the last sale price on such day as reported in the Consolidated Last Sale Reporting System or as quoted on Nasdaq, or if such last sale price is not available, the average of the closing bid and asked prices as reported in either such system, or in any other case the higher bid price quoted for such day as reported by The Wall Street Journal and the National Quotation Bureau pink sheets. "EFFECTIVE DATE" shall mean the date set forth on the signature page of this Warrant. "EXERCISE NOTICE" shall have the meaning assigned to such term in Section 2 hereof. "EXERCISE PRICE" shall have the meaning assigned to such term in the first paragraph of this Warrant. "EXPIRATION DATE" shall have the meaning assigned to such term in the first paragraph of this Warrant. "HOLDER" shall mean the registered holder of this Warrant. "INCLUDE" and "INCLUDING" shall be construed as if followed by the phrase ", without being limited to,". "INDEPENDENT FINANCIAL EXPERT" shall mean an investment banking firm of recognized national standing chosen by the Issuer which is not an Affiliate of Atlantic Equity Partners International II, L.P. or an Affiliate or a Stockholder of the Issuer and which is satisfactory to the holders of a majority in interest of the Warrants and the Warrant Stock. "IPO" shall mean the Issuer's first firm commitment underwritten public offering involving the sale of Common Stock of the Issuer, pursuant to an effective registration statement under the Securities Act. "ISSUER" shall have the meaning assigned to such term in the first paragraph of this Warrant. "PERSON" means any individual, corporation, general or limited partnership, joint venture, association, limited liability company, joint stock company, trust, business trust, bank, trust company, estate (including any beneficiaries thereof), unincorporated organization, cooperative, association or governmental branch, authority, agency or political subdivision thereof. "PURCHASE AGREEMENT" shall have the meaning assigned to such term in the second paragraph of this Warrant. "REGULATION Y" shall mean Regulation Y promulgated by the Board of Governors of the Federal Reserve System (12 C.F.R.
225), or any successor regulation. 3 "SECURITIES ACT" shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder. "STOCKHOLDER" shall mean any Person who directly or indirectly owns any shares of Common Stock (including Warrant Stock). "STOCK UNIT" shall mean one share of Class B Common Stock, as such Class B Common Stock is constituted on the date hereof, and thereafter shall mean such number of shares (including any fractional shares) of Class B Common Stock and other securities, cash or other property as shall result from the adjustments specified in Section 4 hereof. "WARRANT HOLDER" shall mean any Person who acquires Warrants or Warrant Stock pursuant to the provisions of the Purchase Agreement, including any transferees of Warrants or Warrant Stock. "WARRANT STOCK" shall mean all shares of Class B Common Stock issuable from time to time upon exercise of the Warrants. "WARRANTS" shall mean the warrants originally issued by the Issuer pursuant to the Purchase Agreement (of which this Warrant is one), evidencing rights to purchase up to the aggregate amount of Stock Units set forth therein, and all Warrants issued upon transfer, division, or combination of, or in substitution for, such Warrants. SECTION 2. EXERCISE OF WARRANT. On and after the Effective Date and until 5:00 p.m., New York time, on the Expiration Date, the Holder may exercise this Warrant, on one or more occasions, on any Business Day, in whole or in part, by delivering to the Issuer, at its office maintained for such purpose pursuant to Section 5.01 hereof, (a) a written notice of the Holder's election to exercise this Warrant, which notice shall specify the number of Stock Units to be purchased (the "EXERCISE NOTICE"), (b) payment of the Exercise Price (payable as set forth below) for the number of Stock Units as to which this Warrant is being exercised, and (c) this Warrant. The Exercise Price shall be payable (a) in cash or by certified or official bank check payable to the order of the Issuer or by wire transfer of immediately available funds to the account of the Issuer or (b) by delivery of this Warrant Certificate to the Issuer for cancellation in accordance with the following formula: in exchange for each share of Class B Common Stock issuable on exercise of each Warrant represented by this Warrant Certificate that is being exercised, such holder shall receive such number of shares of Class B Common Stock as is equal to the product of (i) the number of shares of Class B Common Stock issuable upon exercise of the Warrants being exercised at such time multiplied by (ii) a fraction, the numerator of which is the Current Market Price per share of Class B Common Stock at such time minus the Exercise Price per share of Class B Common Stock at such time, and the denominator of which is the Current Market Price per share of Class B Common Stock at such time. Upon receipt thereof, the Issuer shall, as promptly as practicable and in any event within five Business Days thereafter, execute or cause to be executed and deliver or cause to be delivered to the Holder a stock certificate or certificates representing the aggregate number of shares of Warrant Stock and other securities issuable upon such exercise and any other property to which such Holder is entitled. 4 The stock certificate or certificates for Warrant Stock so delivered shall be in such denominations as may be specified in the Exercise Notice and shall be registered in the name of the Holder or such other name or names as shall be designated in such Exercise Notice. Such stock certificate or certificates shall be deemed to have been issued and the Holder or any other Person so designated to be named therein shall be deemed to have become a holder of record of such shares, including, to the extent permitted by law and to the extent such shares represent voting stock of the Issuer, the right to vote such shares or to consent or to receive notice as a Stockholder, as of the date on which the last of the Exercise Notice, payment of the Exercise Price and this Warrant is received by the Issuer as aforesaid. If this Warrant shall have been exercised only in part, the Issuer shall, at the time of delivery of the certificate or certificates representing Warrant Stock and other securities, execute and deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased Stock Units called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant, or, at the request of the Holder, appropriate notation may be made on this Warrant and the same returned to the Holder. All shares of Class B Common Stock issuable upon the exercise of this Warrant shall, upon payment therefor in accordance herewith, be duly and validly issued, fully paid and nonassessable and free and clear of any liens, charges or other encumbrances of any nature. The Issuer shall not be required to issue a fractional share of Class B Common Stock upon exercise of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Issuer shall pay (at the time this Warrant is exercised for all shares of Class B Common Stock remaining subject hereto) a cash adjustment in respect of such final fraction in an amount equal to the same fraction of the Current Market Price per share of Class B Common Stock on the date of exercise. SECTION 3. TRANSFER, DIVISION AND COMBINATION. (a) Notwithstanding anything herein to the contrary, no holder of Warrants subject to the provisions of Regulation Y shall transfer any Warrants or shares of Warrant Stock held by it, if, as a result of such transfer or the right to effect such transfer, such holder would be deemed under Regulation Y to have the power to exercise, directly or indirectly, a controlling influence over the management or policies of the Issuer (and, for purposes of this restriction, a reasoned opinion of counsel to such holder (which is based on facts and circumstances deemed appropriate by such counsel) to the effect that such holder does not exercise such a controlling influence shall be conclusive). For the purposes of this Section 3(a), a holder of Warrants will not be deemed to be subject to Regulation Y to the extent such holder is entitled to hold the Warrants pursuant to 12 C.F.R.
225.22(c)(4). (b) Subject to the foregoing, this Warrant and all rights hereunder are transferable (subject to any restrictive legends hereon), in whole or in part, upon surrender of this Warrant to the Issuer, together with a written assignment of this Warrant duly executed by the Holder hereof or such holder's agent or attorney. Such written assignment shall be in the form of the Assignment Form attached as Annex B hereto. Upon such surrender the Issuer shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees and in the denominations specified in such instrument of assignment, and the original Warrant shall promptly be canceled. 5 (c) This Warrant may be exchanged for other Warrants of the same series upon presentation to the Issuer, together with a written notice specifying the denominations in which new Warrants are to be issued, signed by the Holder hereof. The Issuer shall execute and deliver a new Warrant or Warrants to the holder in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice. The Issuer shall pay all expenses, taxes (including transfer taxes) and other charges payable in connection with the preparation, issuance and delivery of the Warrants, including any transfer or exchange thereof. (d) The Issuer shall maintain books for the registration and transfer of the Warrants, and shall allow each holder of Warrants to inspect such books at such reasonable times as such holder shall request. SECTION 4. ADJUSTMENTS. (a) DIVIDENDS, DISTRIBUTIONS AND PURCHASES. (i) If at any time the Issuer shall pay any dividend or make any other distribution to holders of its Common Stock of any cash, evidence of indebtedness or other property of any nature whatsoever (other than as provided in subsections (b), (c)(i)(A) and (d)(i)(A) hereof), the Issuer shall at the same time pay or distribute to each holder of Warrants (whether or not such holder exercises such Warrants) the cash, evidence of indebtedness or other property such holder would have been entitled to receive if such holder had exercised such Warrants immediately prior to the record date for such dividend or distribution. (ii) If at any time the Issuer shall propose to purchase or redeem any shares of its Common Stock (other than shares of Class B or Class C Common Stock validly repurchased or redeemed, solely as permitted by the terms of the Senior Secured Note Indenture (as defined in the Amended and Restated Certificate of Incorporation), pursuant to any management equity subscription, stockholders or stock option agreement) for cash, evidence of indebtedness or other property of any nature whatsoever, the Issuer shall deliver to each holder of Warrants which are by their terms then exercisable for shares of Warrant Stock a notice of such proposed purchase or redemption, and each such holder shall, at its option, have the right to require the Issuer to at the same time purchase or redeem Warrants and shares of Warrant Stock owned by such holder, in the same proportion as the number of shares of Common Stock to be so purchased or redeemed bears to the total number of shares of Common Stock outstanding at such time, on the same terms and conditions as the proposed purchase or redemption of such other Common Stock and for the same consideration per Warrant or share of Warrant Stock, as the case may be, as is paid to the holders of such other Common Stock for each share of Common Stock so redeemed or purchased, minus, in the case of Warrants, the exercise price of the Warrants to be so purchased or redeemed. (b) SUBDIVISIONS AND COMBINATIONS. If at any time the Issuer shall (i) take a record of the holders of its Common Stock for the purpose of entitling them to receive a dividend or other distribution of Common Stock; 6 (ii) subdivide or reclassify its outstanding shares of Common Stock into a larger number of shares of Common Stock; or (iii) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stock; then immediately after the occurrence of any such event the number of shares of Warrant Stock comprising a Stock Unit shall be adjusted so as to equal the number of shares of Warrant Stock which such holder would have been entitled to receive if such holder had exercised the Warrant immediately prior to the occurrence of such event. (c) ISSUANCE OF COMMON STOCK. In case at any time the Issuer (i)(A) shall take a record of the holders of its Common Stock for the purpose of entitling them to subscribe for or purchase shares of any class or series of Common Stock or (B) shall otherwise sell or issue any such securities and (ii) the consideration per share of Common Stock to be paid upon such issuance or subscription is less than the Current Market Price per share of Common Stock on such record date, then the number of shares of Warrant Stock comprising a Stock Unit shall be adjusted to be that number determined by multiplying the number of shares of Warrant Stock comprising a Stock Unit immediately prior to such record date by a fraction (not to be less than one) (i) the numerator of which shall be equal to the product of (A) the number of shares of Common Stock outstanding after giving effect to such issuance, distribution, subscription or purchase and (B) the Current Market Price per share of Common Stock determined immediately before such record date and (ii) the denominator of which shall be equal to the sum of (A) the product of (1) the number of shares of Common Stock outstanding immediately before such record date and (2) the Current Market Price per share of Common Stock determined immediately before such record date and (B) the aggregate consideration to be received by the Issuer for the total number of shares of Common Stock to be issued, distributed, subscribed for or purchased. Aggregate consideration for purposes of the preceding clause (B) shall be determined as follows: In case any shares of Common Stock shall be issued or sold for cash, the consideration received therefor shall be deemed to be the amount payable to the Issuer therefor. In case any shares of Common Stock shall be issued or sold for a consideration other than cash payable to the Issuer, the consideration received therefor shall be deemed to be the fair value of such consideration as determined by the Board. In case any shares of Common Stock shall be issued in connection with any merger of another corporation into the Issuer, the amount of consideration therefor shall be deemed to be the fair value as determined by the Board of such portion of the assets of such merged corporation as the Board shall determine to be attributable to such shares of Common Stock. (d) ISSUANCE OF OTHER SECURITIES, RIGHTS OR OBLIGATIONS. In case at any time the Issuer (i)(A) shall take a record of the holders of its Common Stock for the purpose of entitling them to subscribe for or purchase options to purchase or rights to subscribe for Common Stock or securities directly or indirectly convertible into or exchangeable for Common Stock (or options or rights with respect to such securities) or (B) shall otherwise issue or sell any such options, rights or securities and (ii) the consideration per share for which Common Stock is deliverable upon exercise of such options or rights or conversion or exchange of such securities (determined by dividing (x) the total amount received or receivable by the Issuer in consideration of the issuance of or subscription for such options, rights or securities, plus the minimum 7 aggregate amount of premiums (if any) payable to the Issuer upon such exercise, conversion or exchange, by (y) the total maximum number of shares of Common Stock necessary to effect the exercise, conversion or exchange of all such options, rights or securities) shall be less than the Current Market Price per share of Common Stock on such record date or sale or issuance date, as the case may be, then the number of shares of Warrant Stock comprising a Stock Unit shall be adjusted to be that number determined by multiplying the number of shares of Warrant Stock comprising a Stock Unit immediately prior to such date by a fraction (not to be less than one) (i) the numerator of which shall be equal to the product of (A) the total maximum number of shares of Common Stock outstanding after giving effect to the assumed exercise or conversion of all such options, rights or securities and (B) the Current Market Price per share of Common Stock determined immediately before such date and (ii) the denominator of which shall be equal to the sum of (A) the product of (1) the number of shares of Common Stock outstanding immediately before such date and (2) the Current Market Price per share of the Common Stock determined immediately before such date and (B) the aggregate consideration per share (determined as set forth in subsection (ii)(x) and (y) above) for which Common Stock is deliverable upon exercise conversion or exchange of such options, rights or securities. Aggregate consideration for purposes of the preceding clause (B) shall be determined as follows: In case any options, rights or convertible or exchangeable securities (or options or rights with respect thereto) shall be issued or sold, or exercisable, convertible or exchangeable for cash, the consideration received therefor shall be deemed to be the amount payable to the Issuer (determined as set forth in subsection (ii)(x) and (y) above) therefor. In case any such options, rights or securities shall be issued or sold, or exercisable, convertible or exchangeable for a consideration other than cash payable to the Issuer, the consideration received therefor (determined as set forth in subsection (ii)(x) and (y) above) shall be deemed to be the fair value of such consideration as determined by the Board, after deduction therefrom of any expenses incurred or any underwriting commissions or concessions or discounts paid or allowed by the Issuer in connection therewith. In case any such options, rights or securities shall be issued or sold, or exercisable, convertible or exchangeable in connection with any merger of another corporation into the Issuer, the amount of consideration therefor shall be deemed to be the fair value as determined by the Board of such portion of the assets of such merged corporation as the Board shall determine to be attributable to such options, rights or securities. The Current Market Price per share of Common Stock shall be determined as set forth in Section 5.05 hereof. (e) SUPERSEDING ADJUSTMENT. If, at any time after any adjustment in the number of shares of Warrant Stock comprising a Stock Unit shall have been made on the basis of the issuance of any options or rights, or convertible or exchangeable securities (or options or rights with respect to such securities) pursuant to subsection (d) hereof: (i) the options or rights shall expire prior to exercise or the right to convert or exchange any such securities shall terminate; or (ii) the consideration per share for which shares of Common Stock are issuable pursuant to the terms of such options or rights or convertible or exchangeable securities shall be increased or decreased, other than under or by reason of provisions designed to protect against dilution; 8 such previous adjustment shall be rescinded and annulled. Thereupon, a recomputation shall be made of the effect of such options or rights or convertible or exchangeable securities with respect to shares of Common Stock on the basis of (A) treating the number of shares of Common Stock, if any, theretofore actually issued or issuable pursuant to the previous exercise, conversion or exchange of such options, rights or securities as having been issued on the date or dates of such exercise, conversion or exchange and for the consideration actually received and receivable therefore, and (B) treating any such options, rights or securities which then remain outstanding as having been granted or issued immediately after the time of such increase or decrease for the consideration per share for which shares of Common Stock are issuable upon exercise, conversion or exchange of such options, rights or securities. To the extent called for by the foregoing provisions of this Section 4(e) on the basis aforesaid, a new adjustment in the number of shares of Warrant Stock comprising a Stock Unit shall be made, determined using the Current Market Price used at the time of the original determination, which new adjustment shall supersede the previous adjustment so rescinded and annulled. If the exercise, conversion or exchange price provided for in any such option, right or security shall decrease at any time under or by reason of provisions designed to protect against dilution, then in the case of the delivery of shares of Common Stock upon the exercise, conversion or exchange of any such option, right or security, the Stock Unit purchasable upon the exercise of a Warrant shall forthwith be adjusted in the manner which would have obtained had the adjustment made upon issuance of such option, right or security been made upon the basis of the issuance of (and the aggregate consideration received for) the shares of Common Stock delivered as aforesaid. (f) OTHER PROVISIONS APPLICABLE TO ADJUSTMENTS UNDER THIS SECTION. The following provisions shall be applicable to the making of adjustments of the number of shares of Warrant Stock comprising a Stock Unit: (i) The sale or other disposition of any issued shares of Common Stock owned or held by or for the account of the Issuer shall be deemed to be an issuance thereof for purposes of this Section. (ii) In computing adjustments under this Section, fractional interests in Common Stock shall be taken into account to the nearest one-thousandth of a share. (iii) If the Issuer shall take a record of the holders of its Common Stock for the purpose of entitling them to receive a dividend or distribution or subscription or purchase rights and shall, thereafter and before the distribution thereof, legally abandon its plan to pay or deliver such dividend, distribution, subscription or purchase rights, then thereafter no adjustment shall be required by reason of the taking of such record and any such adjustment previously made in respect thereof shall be rescinded and annulled. 9 (g) MERGER, CONSOLIDATION OR DISPOSITION OF ASSETS. If the Issuer shall merge or consolidate with another corporation, or shall sell, transfer or otherwise dispose of all or substantially all of its assets to another corporation and pursuant to the terms of such merger, consolidation or disposition of assets, cash, shares of common stock or other securities of the successor or acquiring corporation, or property of any nature is to be received by or distributed to the holders of Common Stock of the Issuer, then each holder of Warrants which are by their terms then exercisable shall, at such holder's election, have the right to receive (whether or not such holder exercises such Warrants) the amount it would have been entitled to receive if such holder had exercised such Warrants immediately prior to the occurrence of such merger, consolidation or disposition of assets, net of the exercise price of such Warrants. In case of any such merger, consolidation or disposition of assets in which the foregoing election is not made, the successor or acquiring corporation (and any affiliate thereof issuing securities) shall expressly assume the due and punctual observance and performance of each and every covenant and condition of this Warrant to be performed and observed by the Issuer and all of the obligations and liabilities hereunder, subject to such modifications as may be deemed appropriate (as determined by resolution of the Board and reasonably acceptable to the holders of a majority in interest of the Warrants) in order to provide for adjustments of Stock Units which shall be as nearly equivalent as practicable to the adjustments provided for in this Section. The foregoing provisions shall similarly apply to successive mergers, consolidations and dispositions of assets. (h) OTHER ACTION AFFECTING COMMON STOCK. If at any time or from time to time the Issuer shall take any action affecting its Common Stock, other than an action described in any of the foregoing subsections of this Section or an action taken in the ordinary course of the Issuer's business and consistent with past practice, then, unless in the reasonable opinion of the Board such action will not have a material adverse effect upon the rights of the holders of the Warrants, the number of shares of Warrant Stock comprising a Stock Unit shall be adjusted in such manner and at such time as the Board shall in good faith determine to be equitable in the circumstances, but no such adjustment shall decrease the number of shares of Warrant Stock comprising a Stock Unit. (i) NOTICE OF ADJUSTMENTS. Whenever the number of shares of Warrant Stock comprising a Stock Unit shall be adjusted pursuant to this Agreement, the Issuer shall forthwith obtain a certificate signed by a firm of independent accountants of recognized national standing selected by the Issuer, setting forth, in reasonable detail, the event requiring the adjustment and the method by which such adjustment was calculated and specifying the number of shares of Warrant Stock comprising a Stock Unit, after giving effect to such adjustment or change. The Issuer shall promptly cause a signed copy of such certificate to be delivered to each holder of Warrants. The Issuer shall keep at its office copies of all such certificates and cause the same to be available for inspection at said office during normal business hours by any holder of Warrants or any prospective purchaser of Warrants designated by the registered holder hereof. (j) NOTICE OF CERTAIN CORPORATE ACTION. If the Issuer shall propose (i) to pay any dividend to the holders of its Common Stock or to make any other distribution to the holders of its Common Stock; (ii) to offer to the holders of its Common Stock rights to subscribe for or to purchase any additional shares of Common Stock (or options or rights with respect thereto); (iii) to effect any reclassification of its Common Stock; (iv) to otherwise issue any Common Stock or other securities; (v) to effect any capital reorganization; (vi) to effect any consolidation, 10 merger or sale, transfer or other disposition of all or substantially all of its assets; or (vii) to effect the liquidation, dissolution or winding up of the Issuer, then, in each such case, the Issuer shall give to each holder of Warrants a notice of such proposed action, which shall specify the date on which a record is to be taken for the purposes of such dividend, distribution or rights offer, or the date on which such reclassification, issuance, reorganization, consolidation, merger, sale, transfer, disposition, liquidation, dissolution or winding up is to take place and the date of participation therein by the holders of Common Stock, if any such date is to be fixed, and shall also set forth such facts with respect thereto as shall be reasonably necessary to indicate the effect of such action on the Common Stock, and the number of shares of Warrant Stock which will comprise a Stock Unit after giving effect to any adjustment which will be required as a result of such action. Such notice shall be so given in the case of any action covered by clause (i) or (ii) above at least 20 days prior to the record date for determining holders of the Common Stock for purposes of such action, and in the case of any other such action, at least 20 days prior to the date of the taking of such proposed action or the date of participation therein by the holders of Common Stock, whichever shall be the earlier. (k) NO ADJUSTMENT NECESSARY. Anything to the contrary herein notwithstanding, no adjustment to the number of shares of Warrant Stock comprising a Stock Unit shall be made as a result of, or in connection with, the issuance of shares of Common Stock, or options or warrants to purchase shares of Common Stock, to management at fair market value (as determined by the Board in its reasonable judgment) in an amount up to 12% of the outstanding shares of Common Stock on June 12, 1996, on a fully diluted basis. SECTION 5. MISCELLANEOUS. 5.01 OFFICE OF ISSUER. So long as any of the Warrants remains outstanding, the Issuer shall maintain an office in the continental United States of America where the Warrants may be presented for exercise, transfer, division or combination as in this Warrant provided. Such office shall be at c/o 101 Oakley Street, Evansville, Indiana 47710, unless and until the Issuer shall designate and maintain some other office for such purposes and give notice thereof to all Warrant Holders. 5.02 NOTICES GENERALLY. Any notices and other communications pursuant to the provisions hereof shall be sent in accordance with the provisions of Section 8.6 of the Purchase Agreement. 5.03 GOVERNING LAW. The corporate law of the State of Delaware shall govern all issues concerning the relative rights of the Issuer and its Stockholders. All other issues hereunder shall be governed by and construed in accordance with the procedural and substantive laws of the State of New York without regard for its conflicts of laws rules. The Issuer agrees that it may be served with process in State of New York and any action for breach of this Warrant may be prosecuted against it in the courts of that State. 5.04 LIMITATION OF LIABILITY. No provision hereof, in the absence of affirmative action by the Holder to purchase shares of Class B Common Stock, and no mere enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the 11 Exercise Price or as a Stockholder of the Issuer, whether such liability is asserted by the Issuer, by any creditor of the Issuer or any other Person. 5.05 DETERMINATION OF CURRENT MARKET PRICE PER SHARE OF COMMON STOCK. The Current Market Price per share of Common Stock shall in each instance initially be determined by the Issuer in accordance with the provisions of the definition of Current Market Price in Section 1 hereof. The Issuer shall notify the Holders of such determination. If the holders of a majority in interest of the Warrants disagree with the determination of the Issuer, the Issuer shall appoint an Independent Financial Expert to determine the Current Market Price per share of Common Stock and the determination of the Independent Financial Expert shall govern for purposes of determining the adjustment pursuant to this Section. The Issuer shall notify each holder of Warrants of the final determination of the Current Market Price per share of Common Stock. The Issuer shall pay the fees and expenses of the Independent Financial Expert. 5.06 REGISTRATION RIGHTS. The holders of this Warrant shall be entitled to the benefit of the provisions of Article 6A and Article 6C of the Purchase Agreement with regard to the registration for sale of the Warrant Stock. 12 IN WITNESS WHEREOF, the Issuer has duly executed this Warrant. Dated: May 9, 2000 BPC HOLDING CORPORATION By: /S/ JAMES KRATOCHVIL Name: James Kratochvil Title: Executive Vice President, Chief Financial Officer, Treasurer and Secretary Annex A to Warrant FORM OF EXERCISE (To be executed by the registered holder hereof) The undersigned registered owner of this Warrant irrevocably exercises this Warrant for the purchase of Stock Units of the Issuer, and herewith makes payment therefor, all at the price and on the terms and conditions specified in this Warrant, and requests that (i) certificates and/or other instruments covering such Stock Units be issued in accordance with the instructions given below and (ii) if such Stock Units shall not include all of the Stock Units to which the Holder is entitled under this Warrant, that a new Warrant of like tenor and date for the unpurchased balance of the Stock Units issuable hereunder be delivered to the undersigned. Dated: __________________ ________________________________ (Signature of Registered Holder) Instructions for issuance and registration of Stock Units: _______________________________ Name of Registered Holder (please print) Social Security or Other Identifying Number: _________________________ Please deliver certificate to the following address: ____________________________________ Street _____________________________________ City, State and Zip Code Annex B to Warrant FORM OF ASSIGNMENT (To be executed by the registered holder hereof) FOR VALUE RECEIVED the undersigned registered owner of this Warrant hereby sells, assigns and transfers unto the assignee named below all the rights of the undersigned under this Warrant with respect to the number of Stock Units covered thereby set forth hereinbelow unto: Number of NAME OF ASSIGNEE ADDRESS STOCK UNITS Dated:__________________ ________________________________ (Signature of Registered Holder) ________________________________ Name of Registered Holder (Please Print) Witness: ______________________ EX-4.3 5 WARRANT THE TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE CONDITIONS SPECIFIED IN THAT CERTAIN PREFERRED STOCK AND WARRANT PURCHASE AGREEMENT DATED AS OF MAY 9, 2000 (THE "PURCHASE AGREEMENT"), BY AND AMONG BPC HOLDING CORPORATION, A DELAWARE CORPORATION (THE "ISSUER"), CHASE VENTURE CAPITAL ASSOCIATES, LLC AND THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, AS SUCH PURCHASE AGREEMENT MAY BE MODIFIED AND SUPPLEMENTED AND IN EFFECT FROM TIME TO TIME, AND NO TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE SHALL BE VALID OR EFFECTIVE UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED. A COPY OF THE PURCHASE AGREEMENT IS ON FILE AND MAY BE INSPECTED AT THE PRINCIPAL EXECUTIVE OFFICE OF THE ISSUER. THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND BY THE PROVISIONS OF THE PURCHASE AGREEMENT. THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, AND ACCORDINGLY, SUCH SECURITIES MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH THE REGISTRATION OR QUALIFICATION PROVISIONS OF APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR APPLICABLE EXEMPTIONS THEREFROM. No. of Stock Units: 10,398 Warrant No. CBNV-2 WARRANT to Purchase Class B Non-Voting Common Stock of BPC HOLDING CORPORATION THIS IS TO CERTIFY THAT THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, or its registered assigns, is entitled to purchase in whole or in part from time to time from BPC Holding Corporation, a Delaware corporation (the "ISSUER"), at any time on and after the Effective Date (as hereinafter defined), but not later than 5:00 p.m., New York time, on May 9, 2010 (the "EXPIRATION DATE"), 10,398 Stock Units (as hereinafter defined and subject to adjustment as provided herein) at a purchase price of $0.01 per Stock Unit (the "EXERCISE PRICE"), subject to the terms and conditions provided herein and in the Purchase Agreement (as hereinafter defined). This Warrant is issued pursuant to the Preferred Stock and Warrant Purchase Agreement dated as of May 9, 2000 (as modified and supplemented and in effect from time to time, the "PURCHASE AGREEMENT") between the Issuer, Chase Venture Capital Associates, LLC and The Northwestern Mutual Life Insurance Company. SECTION 1. CERTAIN DEFINITIONS. (a) Each capitalized term used herein without definition shall have the meaning assigned thereto (or incorporated by reference) in the Purchase Agreement and in the Exhibits thereto. (b) As used herein, the following terms shall have the following meanings (all terms defined in this Section 1 or in other provisions of this Warrant in the singular to have the same meanings when used in the plural and vice versa): "AFFILIATE" means, with respect to any specified Person, any other Person which, directly or indirectly, controls, is under common control with, or is owned or controlled by, such specified Person. For purposes of this definition, (i) "control" means, with respect to any specified Person, either (x) the beneficial ownership of more than 30 percent of any class of equity securities or (y) the power to direct the management or policies of the specified Person through the ownership of voting securities, by contract, voting agreement or otherwise and (ii) the terms "controlling", "control with" and "controlled by", etc., shall have meanings correlative to the foregoing. "BOARD" shall mean the Board of Directors of the Issuer. "BUSINESS DAY" shall mean any day on which commercial banks are not authorized or required to close in New York City. "CLASS B COMMON STOCK" means, the Issuer's Class B Non-Voting Common Stock, $.01 par value per share, or any other common stock or other securities receivable thereon, or into which the Class B Common Stock is convertible or exchangeable, as a result of any recapitalization, reclassification, merger or consolidation of, or deposition of assets by, the Issuer. "COMMON STOCK" shall mean the Common Stock of the Issuer, of any class or series whatsoever, or any other common stock or other securities receivable thereon, or into which the Common Stock is convertible or exchangeable, as a result of any recapitalization, reclassification, merger or consolidation of, or disposition of assets by, the Issuer. "CURRENT MARKET PRICE", shall mean, with respect to a share of Common Stock as of any date (a) for a period of 30 Business Days after the date of the IPO, the offering price of such Common Stock or (b) in any other case (i) the fair market value per share of such Common Stock, as reasonably determined in good faith by the Board, using an appropriate valuation method, assuming an arms-length sale to an independent party of all of the Common Stock of the Issuer, without giving regard to the lack of liquidity of such Common Stock due to any restrictions contained in the Stockholders Agreement, the Purchase Agreement or otherwise or any discount for minority interests and assuming the conversion or exchange of all securities then outstanding which are convertible into or exchangeable for such Common Stock and the exercise of all rights and warrants (including the Warrants) then outstanding and exercisable to purchase shares of such Common Stock or securities convertible into or exchangeable for shares of such Common Stock, or (ii) if there shall be a public market for such Common Stock, the average of the daily market prices for each day during the 30 consecutive trading days commencing 45 Business Days before such date as of which such a price can be 2 established in the manner set forth below. The market price for each such Business Day shall be the last sale price on such day as reported in the Consolidated Last Sale Reporting System or as quoted on Nasdaq, or if such last sale price is not available, the average of the closing bid and asked prices as reported in either such system, or in any other case the higher bid price quoted for such day as reported by The Wall Street Journal and the National Quotation Bureau pink sheets. "EFFECTIVE DATE" shall mean the date set forth on the signature page of this Warrant. "EXERCISE NOTICE" shall have the meaning assigned to such term in Section 2 hereof. "EXERCISE PRICE" shall have the meaning assigned to such term in the first paragraph of this Warrant. "EXPIRATION DATE" shall have the meaning assigned to such term in the first paragraph of this Warrant. "HOLDER" shall mean the registered holder of this Warrant. "INCLUDE" and "INCLUDING" shall be construed as if followed by the phrase ", without being limited to,". "INDEPENDENT FINANCIAL EXPERT" shall mean an investment banking firm of recognized national standing chosen by the Issuer which is not an Affiliate of Atlantic Equity Partners International II, L.P. or an Affiliate or a Stockholder of the Issuer and which is satisfactory to the holders of a majority in interest of the Warrants and the Warrant Stock. "IPO" shall mean the Issuer's first firm commitment underwritten public offering involving the sale of Common Stock of the Issuer, pursuant to an effective registration statement under the Securities Act. "ISSUER" shall have the meaning assigned to such term in the first paragraph of this Warrant. "PERSON" means any individual, corporation, general or limited partnership, joint venture, association, limited liability company, joint stock company, trust, business trust, bank, trust company, estate (including any beneficiaries thereof), unincorporated organization, cooperative, association or governmental branch, authority, agency or political subdivision thereof. "PURCHASE AGREEMENT" shall have the meaning assigned to such term in the second paragraph of this Warrant. "REGULATION Y" shall mean Regulation Y promulgated by the Board of Governors of the Federal Reserve System (12 C.F.R.
225), or any successor regulation. 3 "SECURITIES ACT" shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder. "STOCKHOLDER" shall mean any Person who directly or indirectly owns any shares of Common Stock (including Warrant Stock). "STOCK UNIT" shall mean one share of Class B Common Stock, as such Class B Common Stock is constituted on the date hereof, and thereafter shall mean such number of shares (including any fractional shares) of Class B Common Stock and other securities, cash or other property as shall result from the adjustments specified in Section 4 hereof. "WARRANT HOLDER" shall mean any Person who acquires Warrants or Warrant Stock pursuant to the provisions of the Purchase Agreement, including any transferees of Warrants or Warrant Stock. "WARRANT STOCK" shall mean all shares of Class B Common Stock issuable from time to time upon exercise of the Warrants. "WARRANTS" shall mean the warrants originally issued by the Issuer pursuant to the Purchase Agreement (of which this Warrant is one), evidencing rights to purchase up to the aggregate amount of Stock Units set forth therein, and all Warrants issued upon transfer, division, or combination of, or in substitution for, such Warrants. SECTION 2. EXERCISE OF WARRANT. On and after the Effective Date and until 5:00 p.m., New York time, on the Expiration Date, the Holder may exercise this Warrant, on one or more occasions, on any Business Day, in whole or in part, by delivering to the Issuer, at its office maintained for such purpose pursuant to Section 5.01 hereof, (a) a written notice of the Holder's election to exercise this Warrant, which notice shall specify the number of Stock Units to be purchased (the "EXERCISE NOTICE"), (b) payment of the Exercise Price (payable as set forth below) for the number of Stock Units as to which this Warrant is being exercised, and (c) this Warrant. The Exercise Price shall be payable (a) in cash or by certified or official bank check payable to the order of the Issuer or by wire transfer of immediately available funds to the account of the Issuer or (b) by delivery of this Warrant Certificate to the Issuer for cancellation in accordance with the following formula: in exchange for each share of Class B Common Stock issuable on exercise of each Warrant represented by this Warrant Certificate that is being exercised, such holder shall receive such number of shares of Class B Common Stock as is equal to the product of (i) the number of shares of Class B Common Stock issuable upon exercise of the Warrants being exercised at such time multiplied by (ii) a fraction, the numerator of which is the Current Market Price per share of Class B Common Stock at such time minus the Exercise Price per share of Class B Common Stock at such time, and the denominator of which is the Current Market Price per share of Class B Common Stock at such time. Upon receipt thereof, the Issuer shall, as promptly as practicable and in any event within five Business Days thereafter, execute or cause to be executed and deliver or cause to be delivered to the Holder a stock certificate or certificates representing the aggregate number of shares of Warrant Stock and other securities issuable upon such exercise and any other property to which such Holder is entitled. 4 The stock certificate or certificates for Warrant Stock so delivered shall be in such denominations as may be specified in the Exercise Notice and shall be registered in the name of the Holder or such other name or names as shall be designated in such Exercise Notice. Such stock certificate or certificates shall be deemed to have been issued and the Holder or any other Person so designated to be named therein shall be deemed to have become a holder of record of such shares, including, to the extent permitted by law and to the extent such shares represent voting stock of the Issuer, the right to vote such shares or to consent or to receive notice as a Stockholder, as of the date on which the last of the Exercise Notice, payment of the Exercise Price and this Warrant is received by the Issuer as aforesaid. If this Warrant shall have been exercised only in part, the Issuer shall, at the time of delivery of the certificate or certificates representing Warrant Stock and other securities, execute and deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased Stock Units called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant, or, at the request of the Holder, appropriate notation may be made on this Warrant and the same returned to the Holder. All shares of Class B Common Stock issuable upon the exercise of this Warrant shall, upon payment therefor in accordance herewith, be duly and validly issued, fully paid and nonassessable and free and clear of any liens, charges or other encumbrances of any nature. The Issuer shall not be required to issue a fractional share of Class B Common Stock upon exercise of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Issuer shall pay (at the time this Warrant is exercised for all shares of Class B Common Stock remaining subject hereto) a cash adjustment in respect of such final fraction in an amount equal to the same fraction of the Current Market Price per share of Class B Common Stock on the date of exercise. SECTION 3. TRANSFER, DIVISION AND COMBINATION. (a) Notwithstanding anything herein to the contrary, no holder of Warrants subject to the provisions of Regulation Y shall transfer any Warrants or shares of Warrant Stock held by it, if, as a result of such transfer or the right to effect such transfer, such holder would be deemed under Regulation Y to have the power to exercise, directly or indirectly, a controlling influence over the management or policies of the Issuer (and, for purposes of this restriction, a reasoned opinion of counsel to such holder (which is based on facts and circumstances deemed appropriate by such counsel) to the effect that such holder does not exercise such a controlling influence shall be conclusive). For the purposes of this Section 3(a), a holder of Warrants will not be deemed to be subject to Regulation Y to the extent such holder is entitled to hold the Warrants pursuant to 12 C.F.R.
225.22(c)(4). (b) Subject to the foregoing, this Warrant and all rights hereunder are transferable (subject to any restrictive legends hereon), in whole or in part, upon surrender of this Warrant to the Issuer, together with a written assignment of this Warrant duly executed by the Holder hereof or such holder's agent or attorney. Such written assignment shall be in the form of the Assignment Form attached as Annex B hereto. Upon such surrender the Issuer shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees and in the denominations specified in such instrument of assignment, and the original Warrant shall promptly be canceled. 5 (c) This Warrant may be exchanged for other Warrants of the same series upon presentation to the Issuer, together with a written notice specifying the denominations in which new Warrants are to be issued, signed by the Holder hereof. The Issuer shall execute and deliver a new Warrant or Warrants to the holder in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice. The Issuer shall pay all expenses, taxes (including transfer taxes) and other charges payable in connection with the preparation, issuance and delivery of the Warrants, including any transfer or exchange thereof. (d) The Issuer shall maintain books for the registration and transfer of the Warrants, and shall allow each holder of Warrants to inspect such books at such reasonable times as such holder shall request. SECTION 4. ADJUSTMENTS. (a) DIVIDENDS, DISTRIBUTIONS AND PURCHASES. (i) If at any time the Issuer shall pay any dividend or make any other distribution to holders of its Common Stock of any cash, evidence of indebtedness or other property of any nature whatsoever (other than as provided in subsections (b), (c)(i)(A) and (d)(i)(A) hereof), the Issuer shall at the same time pay or distribute to each holder of Warrants (whether or not such holder exercises such Warrants) the cash, evidence of indebtedness or other property such holder would have been entitled to receive if such holder had exercised such Warrants immediately prior to the record date for such dividend or distribution. (ii) If at any time the Issuer shall propose to purchase or redeem any shares of its Common Stock (other than shares of Class B or Class C Common Stock validly repurchased or redeemed, solely as permitted by the terms of the Senior Secured Note Indenture (as defined in the Amended and Restated Certificate of Incorporation), pursuant to any management equity subscription, stockholders or stock option agreement) for cash, evidence of indebtedness or other property of any nature whatsoever, the Issuer shall deliver to each holder of Warrants which are by their terms then exercisable for shares of Warrant Stock a notice of such proposed purchase or redemption, and each such holder shall, at its option, have the right to require the Issuer to at the same time purchase or redeem Warrants and shares of Warrant Stock owned by such holder, in the same proportion as the number of shares of Common Stock to be so purchased or redeemed bears to the total number of shares of Common Stock outstanding at such time, on the same terms and conditions as the proposed purchase or redemption of such other Common Stock and for the same consideration per Warrant or share of Warrant Stock, as the case may be, as is paid to the holders of such other Common Stock for each share of Common Stock so redeemed or purchased, minus, in the case of Warrants, the exercise price of the Warrants to be so purchased or redeemed. (b) SUBDIVISIONS AND COMBINATIONS. If at any time the Issuer shall (i) take a record of the holders of its Common Stock for the purpose of entitling them to receive a dividend or other distribution of Common Stock; 6 (ii) subdivide or reclassify its outstanding shares of Common Stock into a larger number of shares of Common Stock; or (iii) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stock; then immediately after the occurrence of any such event the number of shares of Warrant Stock comprising a Stock Unit shall be adjusted so as to equal the number of shares of Warrant Stock which such holder would have been entitled to receive if such holder had exercised the Warrant immediately prior to the occurrence of such event. (c) ISSUANCE OF COMMON STOCK. In case at any time the Issuer (i)(A) shall take a record of the holders of its Common Stock for the purpose of entitling them to subscribe for or purchase shares of any class or series of Common Stock or (B) shall otherwise sell or issue any such securities and (ii) the consideration per share of Common Stock to be paid upon such issuance or subscription is less than the Current Market Price per share of Common Stock on such record date, then the number of shares of Warrant Stock comprising a Stock Unit shall be adjusted to be that number determined by multiplying the number of shares of Warrant Stock comprising a Stock Unit immediately prior to such record date by a fraction (not to be less than one) (i) the numerator of which shall be equal to the product of (A) the number of shares of Common Stock outstanding after giving effect to such issuance, distribution, subscription or purchase and (B) the Current Market Price per share of Common Stock determined immediately before such record date and (ii) the denominator of which shall be equal to the sum of (A) the product of (1) the number of shares of Common Stock outstanding immediately before such record date and (2) the Current Market Price per share of Common Stock determined immediately before such record date and (B) the aggregate consideration to be received by the Issuer for the total number of shares of Common Stock to be issued, distributed, subscribed for or purchased. Aggregate consideration for purposes of the preceding clause (B) shall be determined as follows: In case any shares of Common Stock shall be issued or sold for cash, the consideration received therefor shall be deemed to be the amount payable to the Issuer therefor. In case any shares of Common Stock shall be issued or sold for a consideration other than cash payable to the Issuer, the consideration received therefor shall be deemed to be the fair value of such consideration as determined by the Board. In case any shares of Common Stock shall be issued in connection with any merger of another corporation into the Issuer, the amount of consideration therefor shall be deemed to be the fair value as determined by the Board of such portion of the assets of such merged corporation as the Board shall determine to be attributable to such shares of Common Stock. (d) ISSUANCE OF OTHER SECURITIES, RIGHTS OR OBLIGATIONS. In case at any time the Issuer (i)(A) shall take a record of the holders of its Common Stock for the purpose of entitling them to subscribe for or purchase options to purchase or rights to subscribe for Common Stock or securities directly or indirectly convertible into or exchangeable for Common Stock (or options or rights with respect to such securities) or (B) shall otherwise issue or sell any such options, rights or securities and (ii) the consideration per share for which Common Stock is deliverable upon exercise of such options or rights or conversion or exchange of such securities (determined by dividing (x) the total amount received or receivable by the Issuer in consideration of the issuance of or subscription for such options, rights or securities, plus the minimum 7 aggregate amount of premiums (if any) payable to the Issuer upon such exercise, conversion or exchange, by (y) the total maximum number of shares of Common Stock necessary to effect the exercise, conversion or exchange of all such options, rights or securities) shall be less than the Current Market Price per share of Common Stock on such record date or sale or issuance date, as the case may be, then the number of shares of Warrant Stock comprising a Stock Unit shall be adjusted to be that number determined by multiplying the number of shares of Warrant Stock comprising a Stock Unit immediately prior to such date by a fraction (not to be less than one) (i) the numerator of which shall be equal to the product of (A) the total maximum number of shares of Common Stock outstanding after giving effect to the assumed exercise or conversion of all such options, rights or securities and (B) the Current Market Price per share of Common Stock determined immediately before such date and (ii) the denominator of which shall be equal to the sum of (A) the product of (1) the number of shares of Common Stock outstanding immediately before such date and (2) the Current Market Price per share of the Common Stock determined immediately before such date and (B) the aggregate consideration per share (determined as set forth in subsection (ii)(x) and (y) above) for which Common Stock is deliverable upon exercise conversion or exchange of such options, rights or securities. Aggregate consideration for purposes of the preceding clause (B) shall be determined as follows: In case any options, rights or convertible or exchangeable securities (or options or rights with respect thereto) shall be issued or sold, or exercisable, convertible or exchangeable for cash, the consideration received therefor shall be deemed to be the amount payable to the Issuer (determined as set forth in subsection (ii)(x) and (y) above) therefor. In case any such options, rights or securities shall be issued or sold, or exercisable, convertible or exchangeable for a consideration other than cash payable to the Issuer, the consideration received therefor (determined as set forth in subsection (ii)(x) and (y) above) shall be deemed to be the fair value of such consideration as determined by the Board, after deduction therefrom of any expenses incurred or any underwriting commissions or concessions or discounts paid or allowed by the Issuer in connection therewith. In case any such options, rights or securities shall be issued or sold, or exercisable, convertible or exchangeable in connection with any merger of another corporation into the Issuer, the amount of consideration therefor shall be deemed to be the fair value as determined by the Board of such portion of the assets of such merged corporation as the Board shall determine to be attributable to such options, rights or securities. The Current Market Price per share of Common Stock shall be determined as set forth in Section 5.05 hereof. (e) SUPERSEDING ADJUSTMENT. If, at any time after any adjustment in the number of shares of Warrant Stock comprising a Stock Unit shall have been made on the basis of the issuance of any options or rights, or convertible or exchangeable securities (or options or rights with respect to such securities) pursuant to subsection (d) hereof: (i) the options or rights shall expire prior to exercise or the right to convert or exchange any such securities shall terminate; or (ii) the consideration per share for which shares of Common Stock are issuable pursuant to the terms of such options or rights or convertible or exchangeable securities shall be increased or decreased, other than under or by reason of provisions designed to protect against dilution; 8 such previous adjustment shall be rescinded and annulled. Thereupon, a recomputation shall be made of the effect of such options or rights or convertible or exchangeable securities with respect to shares of Common Stock on the basis of (A) treating the number of shares of Common Stock, if any, theretofore actually issued or issuable pursuant to the previous exercise, conversion or exchange of such options, rights or securities as having been issued on the date or dates of such exercise, conversion or exchange and for the consideration actually received and receivable therefore, and (B) treating any such options, rights or securities which then remain outstanding as having been granted or issued immediately after the time of such increase or decrease for the consideration per share for which shares of Common Stock are issuable upon exercise, conversion or exchange of such options, rights or securities. To the extent called for by the foregoing provisions of this Section 4(e) on the basis aforesaid, a new adjustment in the number of shares of Warrant Stock comprising a Stock Unit shall be made, determined using the Current Market Price used at the time of the original determination, which new adjustment shall supersede the previous adjustment so rescinded and annulled. If the exercise, conversion or exchange price provided for in any such option, right or security shall decrease at any time under or by reason of provisions designed to protect against dilution, then in the case of the delivery of shares of Common Stock upon the exercise, conversion or exchange of any such option, right or security, the Stock Unit purchasable upon the exercise of a Warrant shall forthwith be adjusted in the manner which would have obtained had the adjustment made upon issuance of such option, right or security been made upon the basis of the issuance of (and the aggregate consideration received for) the shares of Common Stock delivered as aforesaid. (f) OTHER PROVISIONS APPLICABLE TO ADJUSTMENTS UNDER THIS SECTION. The following provisions shall be applicable to the making of adjustments of the number of shares of Warrant Stock comprising a Stock Unit: (i) The sale or other disposition of any issued shares of Common Stock owned or held by or for the account of the Issuer shall be deemed to be an issuance thereof for purposes of this Section. (ii) In computing adjustments under this Section, fractional interests in Common Stock shall be taken into account to the nearest one-thousandth of a share. (iii) If the Issuer shall take a record of the holders of its Common Stock for the purpose of entitling them to receive a dividend or distribution or subscription or purchase rights and shall, thereafter and before the distribution thereof, legally abandon its plan to pay or deliver such dividend, distribution, subscription or purchase rights, then thereafter no adjustment shall be required by reason of the taking of such record and any such adjustment previously made in respect thereof shall be rescinded and annulled. 9 (g) MERGER, CONSOLIDATION OR DISPOSITION OF ASSETS. If the Issuer shall merge or consolidate with another corporation, or shall sell, transfer or otherwise dispose of all or substantially all of its assets to another corporation and pursuant to the terms of such merger, consolidation or disposition of assets, cash, shares of common stock or other securities of the successor or acquiring corporation, or property of any nature is to be received by or distributed to the holders of Common Stock of the Issuer, then each holder of Warrants which are by their terms then exercisable shall, at such holder's election, have the right to receive (whether or not such holder exercises such Warrants) the amount it would have been entitled to receive if such holder had exercised such Warrants immediately prior to the occurrence of such merger, consolidation or disposition of assets, net of the exercise price of such Warrants. In case of any such merger, consolidation or disposition of assets in which the foregoing election is not made, the successor or acquiring corporation (and any affiliate thereof issuing securities) shall expressly assume the due and punctual observance and performance of each and every covenant and condition of this Warrant to be performed and observed by the Issuer and all of the obligations and liabilities hereunder, subject to such modifications as may be deemed appropriate (as determined by resolution of the Board and reasonably acceptable to the holders of a majority in interest of the Warrants) in order to provide for adjustments of Stock Units which shall be as nearly equivalent as practicable to the adjustments provided for in this Section. The foregoing provisions shall similarly apply to successive mergers, consolidations and dispositions of assets. (h) OTHER ACTION AFFECTING COMMON STOCK. If at any time or from time to time the Issuer shall take any action affecting its Common Stock, other than an action described in any of the foregoing subsections of this Section or an action taken in the ordinary course of the Issuer's business and consistent with past practice, then, unless in the reasonable opinion of the Board such action will not have a material adverse effect upon the rights of the holders of the Warrants, the number of shares of Warrant Stock comprising a Stock Unit shall be adjusted in such manner and at such time as the Board shall in good faith determine to be equitable in the circumstances, but no such adjustment shall decrease the number of shares of Warrant Stock comprising a Stock Unit. (i) NOTICE OF ADJUSTMENTS. Whenever the number of shares of Warrant Stock comprising a Stock Unit shall be adjusted pursuant to this Agreement, the Issuer shall forthwith obtain a certificate signed by a firm of independent accountants of recognized national standing selected by the Issuer, setting forth, in reasonable detail, the event requiring the adjustment and the method by which such adjustment was calculated and specifying the number of shares of Warrant Stock comprising a Stock Unit, after giving effect to such adjustment or change. The Issuer shall promptly cause a signed copy of such certificate to be delivered to each holder of Warrants. The Issuer shall keep at its office copies of all such certificates and cause the same to be available for inspection at said office during normal business hours by any holder of Warrants or any prospective purchaser of Warrants designated by the registered holder hereof. (j) NOTICE OF CERTAIN CORPORATE ACTION. If the Issuer shall propose (i) to pay any dividend to the holders of its Common Stock or to make any other distribution to the holders of its Common Stock; (ii) to offer to the holders of its Common Stock rights to subscribe for or to purchase any additional shares of Common Stock (or options or rights with respect thereto); (iii) to effect any reclassification of its Common Stock; (iv) to otherwise issue any Common Stock or other securities; (v) to effect any capital reorganization; (vi) to effect any consolidation, 10 merger or sale, transfer or other disposition of all or substantially all of its assets; or (vii) to effect the liquidation, dissolution or winding up of the Issuer, then, in each such case, the Issuer shall give to each holder of Warrants a notice of such proposed action, which shall specify the date on which a record is to be taken for the purposes of such dividend, distribution or rights offer, or the date on which such reclassification, issuance, reorganization, consolidation, merger, sale, transfer, disposition, liquidation, dissolution or winding up is to take place and the date of participation therein by the holders of Common Stock, if any such date is to be fixed, and shall also set forth such facts with respect thereto as shall be reasonably necessary to indicate the effect of such action on the Common Stock, and the number of shares of Warrant Stock which will comprise a Stock Unit after giving effect to any adjustment which will be required as a result of such action. Such notice shall be so given in the case of any action covered by clause (i) or (ii) above at least 20 days prior to the record date for determining holders of the Common Stock for purposes of such action, and in the case of any other such action, at least 20 days prior to the date of the taking of such proposed action or the date of participation therein by the holders of Common Stock, whichever shall be the earlier. (k) NO ADJUSTMENT NECESSARY. Anything to the contrary herein notwithstanding, no adjustment to the number of shares of Warrant Stock comprising a Stock Unit shall be made as a result of, or in connection with, the issuance of shares of Common Stock, or options or warrants to purchase shares of Common Stock, to management at fair market value (as determined by the Board in its reasonable judgment) in an amount up to 12% of the outstanding shares of Common Stock on June 12, 1996, on a fully diluted basis. SECTION 5. MISCELLANEOUS. 5.01 OFFICE OF ISSUER. So long as any of the Warrants remains outstanding, the Issuer shall maintain an office in the continental United States of America where the Warrants may be presented for exercise, transfer, division or combination as in this Warrant provided. Such office shall be at c/o 101 Oakley Street, Evansville, Indiana 47710, unless and until the Issuer shall designate and maintain some other office for such purposes and give notice thereof to all Warrant Holders. 5.02 NOTICES GENERALLY. Any notices and other communications pursuant to the provisions hereof shall be sent in accordance with the provisions of Section 8.6 of the Purchase Agreement. 5.03 GOVERNING LAW. The corporate law of the State of Delaware shall govern all issues concerning the relative rights of the Issuer and its Stockholders. All other issues hereunder shall be governed by and construed in accordance with the procedural and substantive laws of the State of New York without regard for its conflicts of laws rules. The Issuer agrees that it may be served with process in State of New York and any action for breach of this Warrant may be prosecuted against it in the courts of that State. 5.04 LIMITATION OF LIABILITY. No provision hereof, in the absence of affirmative action by the Holder to purchase shares of Class B Common Stock, and no mere enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the 11 Exercise Price or as a Stockholder of the Issuer, whether such liability is asserted by the Issuer, by any creditor of the Issuer or any other Person. 5.05 DETERMINATION OF CURRENT MARKET PRICE PER SHARE OF COMMON STOCK. The Current Market Price per share of Common Stock shall in each instance initially be determined by the Issuer in accordance with the provisions of the definition of Current Market Price in Section 1 hereof. The Issuer shall notify the Holders of such determination. If the holders of a majority in interest of the Warrants disagree with the determination of the Issuer, the Issuer shall appoint an Independent Financial Expert to determine the Current Market Price per share of Common Stock and the determination of the Independent Financial Expert shall govern for purposes of determining the adjustment pursuant to this Section. The Issuer shall notify each holder of Warrants of the final determination of the Current Market Price per share of Common Stock. The Issuer shall pay the fees and expenses of the Independent Financial Expert. 5.06 REGISTRATION RIGHTS. The holders of this Warrant shall be entitled to the benefit of the provisions of Article 6A and Article 6C of the Purchase Agreement with regard to the registration for sale of the Warrant Stock. 12 IN WITNESS WHEREOF, the Issuer has duly executed this Warrant. Dated: May 9, 2000 BPC HOLDING CORPORATION By: /S/ JAMES KRATOCHVIL Name: James Kratochvil Title: Executive Vice President, Chief Financial Officer, Treasurer and Secretary Annex A to Warrant FORM OF EXERCISE (To be executed by the registered holder hereof) The undersigned registered owner of this Warrant irrevocably exercises this Warrant for the purchase of Stock Units of the Issuer, and herewith makes payment therefor, all at the price and on the terms and conditions specified in this Warrant, and requests that (i) certificates and/or other instruments covering such Stock Units be issued in accordance with the instructions given below and (ii) if such Stock Units shall not include all of the Stock Units to which the Holder is entitled under this Warrant, that a new Warrant of like tenor and date for the unpurchased balance of the Stock Units issuable hereunder be delivered to the undersigned. Dated: __________________ ________________________________ (Signature of Registered Holder) Instructions for issuance and registration of Stock Units: _______________________________ Name of Registered Holder (please print) Social Security or Other Identifying Number: _________________________ Please deliver certificate to the following address: ____________________________________ Street _____________________________________ City, State and Zip Code Annex B to Warrant FORM OF ASSIGNMENT (To be executed by the registered holder hereof) FOR VALUE RECEIVED the undersigned registered owner of this Warrant hereby sells, assigns and transfers unto the assignee named below all the rights of the undersigned under this Warrant with respect to the number of Stock Units covered thereby set forth hereinbelow unto: Number of NAME OF ASSIGNEE ADDRESS STOCK UNITS Dated:__________________ ________________________________ (Signature of Registered Holder) ________________________________ Name of Registered Holder (Please Print) Witness: ______________________ EX-4.4 6 AMENDED AND RESTATED WARRANT THE TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE CONDITIONS SPECIFIED IN THAT CERTAIN PREFERRED STOCK AND WARRANT PURCHASE AGREEMENT DATED AS OF JUNE 12, 1996 (THE "PURCHASE AGREEMENT"), BY AND AMONG BPC HOLDING CORPORATION, A DELAWARE CORPORATION (SUCCESSOR IN INTEREST TO BPC MERGERCO, INC.) (the "ISSUER"), BPC MERGERCO, INC., A DELAWARE CORPORATION ("MERGERCO"), CHASE VENTURE CAPITAL ASSOCIATES, LLC (FORMERLY KNOWN AS CHASE VENTURE CAPITAL ASSOCIATES, L.P.) AND THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY ("NORTHWESTERN"), AS SUCH PURCHASE AGREEMENT MAY BE MODIFIED AND SUPPLEMENTED AND IN EFFECT FROM TIME TO TIME, AND NO TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE SHALL BE VALID OR EFFECTIVE UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED. A COPY OF THE PURCHASE AGREEMENT IS ON FILE AND MAY BE INSPECTED AT THE PRINCIPAL EXECUTIVE OFFICE OF THE ISSUER. THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND BY THE PROVISIONS OF THE PURCHASE AGREEMENT. THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, AND ACCORDINGLY, SUCH SECURITIES MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH THE REGISTRATION OR QUALIFICATION PROVISIONS OF APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR APPLICABLE EXEMPTIONS THEREFROM. No. of Stock Units: 5,623 Warrant No. 5 WARRANT to Purchase Class B Common Stock of BPC HOLDING CORPORATION THIS IS TO CERTIFY THAT CHASE VENTURE CAPITAL ASSOCIATES, LLC, or its registered assigns, is entitled to purchase in whole or in part from time to time from BPC Holding Corporation a Delaware corporation (the "ISSUER"), at any time on and after the Effective Date (as hereinafter defined), but not later than 5:00 p.m., New York time, on May 9, 2010 (the "EXPIRATION DATE"), 5,623 Stock Units (as hereinafter defined and subject to adjustment as provided herein) at a purchase price of $0.01 per Stock Unit (the "EXERCISE PRICE"), subject to the terms and conditions provided herein and in the Purchase Agreement (as hereinafter defined). This Amended and Restated Warrant ("Warrant") is issued pursuant to the Preferred Stock and Warrant Purchase Agreement dated as of June 12, 1996 (as modified and supplemented and in effect from time to time, the "PURCHASE AGREEMENT") between the Issuer, Mergerco, Chase Venture Capital Associates, LLC and Northwestern. SECTION 1. CERTAIN DEFINITIONS. (a) Each capitalized term used herein without definition shall have the meaning assigned thereto (or incorporated by reference) in the Purchase Agreement and in the Exhibits thereto. (b) As used herein, the following terms shall have the following meanings (all terms defined in this Section 1 or in other provisions of this Warrant in the singular to have the same meanings when used in the plural and vice versa): "AFFILIATE" means, with respect to any specified Person, any other Person which, directly or indirectly, controls, is under common control with, or is owned or controlled by, such specified Person. For purposes of this definition, (i) "control" means, with respect to any specified Person, either (x) the beneficial ownership of more than 30 percent of any class of equity securities or (y) the power to direct the management or policies of the specified Person through the ownership of voting securities, by contract, voting agreement or otherwise and (ii) the terms "controlling", "control with" and "controlled by", etc., shall have meanings correlative to the foregoing. "BOARD" shall mean the Board of Directors of the Issuer. "BUSINESS DAY" shall mean any day on which commercial banks are not authorized or required to close in New York City. "CLASS B COMMON STOCK" means, the Issuer's Class B Voting Common Stock, $.01 par value per share, or any other common stock or other securities receivable thereon, or into which the Class B Common Stock is convertible or exchangeable, as a result of any recapitalization, reclassification, merger or consolidation of, or deposition of assets by, the Issuer. "COMMON STOCK" shall mean the Common Stock of the Issuer, of any class or series whatsoever, or any other common stock or other securities receivable thereon, or into which the Common Stock is convertible or exchangeable, as a result of any recapitalization, reclassification, merger or consolidation of, or disposition of assets by, the Issuer. 2 "CURRENT MARKET PRICE", shall mean, with respect to a share of Common Stock as of any date (a) for a period of 30 Business Days after the date of the IPO, the offering price of such Common Stock or (b) in any other case (i) the fair market value per share of such Common Stock, as reasonably determined in good faith by the Board, using an appropriate valuation method, assuming an arms-length sale to an independent party of all of the Common Stock of the Issuer, without giving regard to the lack of liquidity of such Common Stock due to any restrictions contained in the Stockholders Agreement, the Stock Purchase Agreement, the Purchase Agreement or otherwise or any discount for minority interests and assuming the conversion or exchange of all securities then outstanding which are convertible into or exchangeable for such Common Stock and the exercise of all rights and warrants (including the Warrants) then outstanding and exercisable to purchase shares of such Common Stock or securities convertible into or exchangeable for shares of such Common Stock, or (ii) if there shall be a public market for such Common Stock, the average of the daily market prices for each day during the 30 consecutive trading days commencing 45 Business Days before such date as of which such a price can be established in the manner set forth below. The market price for each such Business Day shall be the last sale price on such day as reported in the Consolidated Last Sale Reporting System or as quoted in the National Association of Securities Dealers Automated Quotation System, or if such last sale price is not available, the average of the closing bid and asked prices as reported in either such system, or in any other case the higher bid price quoted for such day as reported by The Wall Street Journal and the National Quotation Bureau pink sheets. "EFFECTIVE DATE" shall mean the date set forth on the signature page of this Warrant. "EXERCISE NOTICE" shall have the meaning assigned to such term in Section 2 hereof. "EXERCISE PRICE" shall have the meaning assigned to such term in the first paragraph of this Warrant. "EXPIRATION DATE" shall have the meaning assigned to such term in the first paragraph of this Warrant. "HOLDER" shall mean the registered holder of this Warrant. "INCLUDE" and "INCLUDING" shall be construed as if followed by the phrase ", without being limited to,". "INDEPENDENT FINANCIAL EXPERT" shall mean an investment banking firm of recognized national standing chosen by the Issuer which is not an Affiliate of Atlantic Equity Partners International II, L.P. or an Affiliate or a Stockholder of the 3 Issuer and which is satisfactory to the holders of a majority in interest of the Warrants and the Warrant Stock. "IPO" shall mean the Issuer's first firm commitment underwritten public offering involving the sale of Common Stock of the Issuer, pursuant to an effective registration statement under the Securities Act. "ISSUER" shall have the meaning assigned to such term in the first paragraph of this Warrant. "PERSON" means any individual, corporation, general or limited partnership, joint venture, association, limited liability company, joint stock company, trust, business trust, bank, trust company, estate (including any beneficiaries thereof), unincorporated organization, cooperative, association or governmental branch, authority, agency or political subdivision thereof. "PURCHASE AGREEMENT" shall have the meaning assigned to such term in the second paragraph of this Warrant. "REGULATION Y" shall mean Regulation Y promulgated by the Board of Governors of the Federal Reserve System (12 C.F.R.
225), or any successor regulation. "SECURITIES ACT" shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder. "STOCKHOLDER" shall mean any Person who directly or indirectly owns any shares of Common Stock (including Warrant Stock). "STOCK UNIT" shall mean one share of Class B Common Stock, as such Class B Common Stock is constituted on the date hereof, and thereafter shall mean such number of shares (including any fractional shares) of Class B Common Stock and other securities, cash or other property as shall result from the adjustments specified in Section 4 hereof. "WARRANT HOLDER" shall mean any Person who acquires Warrants or Warrant Stock pursuant to the provisions of the Purchase Agreement, including any transferees of Warrants or Warrant Stock. "WARRANT STOCK" shall mean all shares of Class B Common Stock issuable from time to time upon exercise of the Warrants. "WARRANTS" shall mean the warrants originally issued by the Issuer pursuant to the Purchase Agreement (of which this Warrant is one), evidencing rights to purchase up to the aggregate amount of Stock Units set forth therein, and all 4 Warrants issued upon transfer, division, or combination of, or in substitution for, such Warrants. SECTION 2. EXERCISE OF WARRANT. On and after the Effective Date and until 5:00 p.m., New York time, on the Expiration Date, the Holder may exercise this Warrant, on one or more occasions, on any Business Day, in whole or in part, by delivering to the Issuer, at its office maintained for such purpose pursuant to Section 5.01 hereof, (a) a written notice of the Holder's election to exercise this Warrant, which notice shall specify the number of Stock Units to be purchased (the "EXERCISE NOTICE"), (b) payment of the Exercise Price (payable as set forth below) for the number of Stock Units as to which this Warrant is being exercised, and (c) this Warrant. The Exercise Price shall be payable (a) in cash or by certified or official bank check payable to the order of the Issuer or by wire transfer of immediately available funds to the account of the Issuer or (b) by delivery of this Warrant Certificate to the Issuer for cancellation in accordance with the following formula: in exchange for each share of Class B Common Stock issuable on exercise of each Warrant represented by this Warrant Certificate that is being exercised, such holder shall receive such number of shares of Class B Common Stock as is equal to the product of (i) the number of shares of Class B Common Stock issuable upon exercise of the Warrants being exercised at such time multiplied by (ii) a fraction, the numerator of which is the Current Market Price per share of Class B Common Stock at such time minus the Exercise Price per share of Class B Common Stock at such time, and the denominator of which is the Current Market Price per share of Class B Common Stock at such time. Upon receipt thereof, the Issuer shall, as promptly as practicable and in any event within 5 Business Days thereafter, execute or cause to be executed and deliver or cause to be delivered to the Holder a stock certificate or certificates representing the aggregate number of shares of Warrant Stock and other securities issuable upon such exercise and any other property to which such Holder is entitled. The stock certificate or certificates for Warrant Stock so delivered shall be in such denominations as may be specified in the Exercise Notice and shall be registered in the name of the Holder or such other name or names as shall be designated in such Exercise Notice. Such stock certificate or certificates shall be deemed to have been issued and the Holder or any other Person so designated to be named therein shall be deemed to have become a holder of record of such shares, including, to the extent permitted by law and to the extent such shares represent voting stock of the Issuer, the right to vote such shares or to consent or to receive notice as a Stockholder, as of the date on which the last of the Exercise Notice, payment of the Exercise Price and this Warrant is received by the Issuer as aforesaid. If this Warrant shall have been exercised only in part, the Issuer shall, at the time of delivery of the certificate or certificates 5 representing Warrant Stock and other securities, execute and deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased Stock Units called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant, or, at the request of the Holder, appropriate notation may be made on this Warrant and the same returned to the Holder. All shares of Class B Common Stock issuable upon the exercise of this Warrant shall, upon payment therefor in accordance herewith, be duly and validly issued, fully paid and nonassessable and free and clear of any liens, charges or other encumbrances of any nature. The Issuer shall not be required to issue a fractional share of Class B Common Stock upon exercise of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Issuer shall pay (at the time this Warrant is exercised for all shares of Class B Common Stock remaining subject hereto) a cash adjustment in respect of such final fraction in an amount equal to the same fraction of the Current Market Price per share of Class B Common Stock on the date of exercise. SECTION 3. TRANSFER, DIVISION AND COMBINATION. (a) Notwithstanding anything herein to the contrary, no holder of Warrants subject to the provisions of Regulation Y shall transfer any Warrants or shares of Warrant Stock held by it, if, as a result of such transfer or the right to effect such transfer, such holder would be deemed under Regulation Y to have the power to exercise, directly or indirectly, a controlling influence over the management or policies of the Issuer (and, for purposes of this restriction, a reasoned opinion of counsel to such holder (which is based on facts and circumstances deemed appropriate by such counsel) to the effect that such holder does not exercise such a controlling influence shall be conclusive). For the purposes of this Section 3(a), a holder of Warrants will not be deemed to be subject to Regulation Y to the extent such holder is entitled to hold the Warrants pursuant to 12 C.F.R.
225.22(c)(4). (b) Subject to the foregoing, this Warrant and all rights hereunder are transferable (subject to any restrictive legends hereon), in whole or in part, upon surrender of this Warrant to the Issuer, together with a written assignment of this Warrant duly executed by the Holder hereof or such holder's agent or attorney. Such written assignment shall be in the form of the Assignment Form attached as Annex B hereto. Upon such surrender the Issuer shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees and in the denominations specified in such instrument of assignment, and the original Warrant shall promptly be canceled. 6 (c)This Warrant may be exchanged for other Warrants of the same series upon presentation to the Issuer, together with a written notice specifying the denominations in which new Warrants are to be issued, signed by the Holder hereof. The Issuer shall execute and deliver a new Warrant or Warrants to the holder in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice. The Issuer shall pay all expenses, taxes (including transfer taxes) and other charges payable in connection with the preparation, issuance and delivery of the Warrants, including any transfer or exchange thereof. (d)The Issuer shall maintain books for the registration and transfer of the Warrants, and shall allow each holder of Warrants to inspect such books at such reasonable times as such holder shall request. SECTION 4. ADJUSTMENTS. (a) DIVIDENDS, DISTRIBUTIONS AND PURCHASES. (i) If at any time the Issuer shall pay any dividend or make any other distribution to holders of its Common Stock of any cash, evidence of indebtedness or other property of any nature whatsoever (other than as provided in subsections (b), (c)(i)(A) and (d)(i)(A) hereof), the Issuer shall at the same time pay or distribute to each holder of Warrants (whether or not such holder exercises such Warrants) the cash, evidence of indebtedness or other property such holder would have been entitled to receive if such holder had exercised such Warrants immediately prior to the record date for such dividend or distribution; (ii) If at any time the Issuer shall propose to purchase or redeem any shares of its Common Stock (other than shares of Class B or Class C Common Stock validly repurchased or redeemed, solely as permitted by the terms of the Senior Secured Note Indenture, pursuant to any management equity subscription, stockholders or stock option agreement) for cash, evidence of indebtedness or other property of any nature whatsoever, the Issuer shall deliver to each holder of Warrants which are by their terms then exercisable for shares of Warrant Stock a notice of such proposed purchase or redemption, and each such holder shall, at its option, have the right to require the Issuer to at the same time purchase or redeem Warrants and shares of Warrant Stock owned by such holder, in the same proportion as the number of shares of Common Stock to be so purchased or redeemed bears to the total number of shares of Common Stock outstanding at such time, on the same terms and conditions as the proposed purchase or redemption of such other Common Stock and for the same consideration per Warrant or 7 share of Warrant Stock, as the case may be, as is paid to the holders of such other Common Stock for each share of Common Stock so redeemed or purchased, minus, in the case of Warrants, the exercise price of the Warrants to be so purchased or redeemed. (b) SUBDIVISIONS AND COMBINATIONS. If at any time the Issuer shall (i) take a record of the holders of its Common Stock for the purpose of entitling them to receive a dividend or other distribution of Common Stock; (ii) subdivide or reclassify its outstanding shares of Common Stock into a larger number of shares of Common Stock; or (iii) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stock; then immediately after the occurrence of any such event the number of shares of Warrant Stock comprising a Stock Unit shall be adjusted so as to equal the number of shares of Warrant Stock which such holder would have been entitled to receive if such holder had exercised the Warrant immediately prior to the occurrence of such event. (c) ISSUANCE OF COMMON STOCK. In case at any time the Issuer (i)(A) shall take a record of the holders of its Common Stock for the purpose of entitling them to subscribe for or purchase shares of any class or series of Common Stock or (B) shall otherwise sell or issue any such securities and (ii) the consideration per share of Common Stock to be paid upon such issuance or subscription is less than the Current Market Price per share of Common Stock on such record date, then the number of shares of Warrant Stock comprising a Stock Unit shall be adjusted to be that number determined by multiplying the number of shares of Warrant Stock comprising a Stock Unit immediately prior to such record date by a fraction (not to be less than one) (i) the numerator of which shall be equal to the product of (A) the number of shares of Common Stock outstanding after giving effect to such issuance, distribution, subscription or purchase and (B) the Current Market Price per share of Common Stock determined immediately before such record date and (ii) the denominator of which shall be equal to the sum of (A) the product of (1) the number of shares of Common Stock outstanding immediately before such record date and (2) the Current Market Price per share of Common Stock determined immediately before such record date and (B) the aggregate consideration to be received by the Issuer for the total number of shares of Common Stock to be issued, distributed, subscribed for or purchased. Aggregate consideration for purposes of the preceding clause (B) shall be determined as follows: In case any shares of Common Stock shall be issued or sold for cash, the consideration received therefor 8 shall be deemed to be the amount payable to the Issuer therefor. In case any shares of Common Stock shall be issued or sold for a consideration other than cash payable to the Issuer, the consideration received therefor shall be deemed to be the fair value of such consideration as determined by the Board. In case any shares of Common Stock shall be issued in connection with any merger of another corporation into the Issuer, the amount of consideration therefor shall be deemed to be the fair value as determined by the Board of such portion of the assets of such merged corporation as the Board shall determine to be attributable to such shares of Common Stock. (d) ISSUANCE OF OTHER SECURITIES, RIGHTS OR OBLIGATIONS. In case at any time the Issuer (i)(A) shall take a record of the holders of its Common Stock for the purpose of entitling them to subscribe for or purchase options to purchase or rights to subscribe for Common Stock or securities directly or indirectly convertible into or exchangeable for Common Stock (or options or rights with respect to such securities) or (B) shall otherwise issue or sell any such options, rights or securities and (ii) the consideration per share for which Common Stock is deliverable upon exercise of such options or rights or conversion or exchange of such securities (determined by dividing (x) the total amount received or receivable by the Issuer in consideration of the issuance of or subscription for such options, rights or securities, plus the minimum aggregate amount of premiums (if any) payable to the Issuer upon such exercise, conversion or exchange, by (y) the total maximum number of shares of Common Stock necessary to effect the exercise, conversion or exchange of all such options, rights or securities) shall be less than the Current Market Price per share of Common Stock on such record date or sale or issuance date, as the case may be, then the number of shares of Warrant Stock comprising a Stock Unit shall be adjusted to be that number determined by multiplying the number of shares of Warrant Stock comprising a Stock Unit immediately prior to such date by a fraction (not to be less than one) (i) the numerator of which shall be equal to the product of (A) the total maximum number of shares of Common Stock outstanding after giving effect to the assumed exercise or conversion of all such options, rights or securities and (B) the Current Market Price per share of Common Stock determined immediately before such date and (ii) the denominator of which shall be equal to the sum of (A) the product of (1) the number of shares of Common Stock outstanding immediately before such date and (2) the Current Market Price per share of the Common Stock determined immediately before such date and (B) the aggregate consideration per share (determined as set forth in subsection (ii)(x) and (y) above) for which Common Stock is deliverable upon exercise conversion or exchange of such options, rights or securities. Aggregate consideration for purposes of the preceding clause (B) shall be determined as follows: In case any options, rights or convertible or exchangeable securities (or options or rights with respect thereto) shall be issued or sold, or exercisable, convertible or exchangeable for cash, the 9 consideration received therefor shall be deemed to be the amount payable to the Issuer (determined as set forth in subsection (ii)(x) and (y) above) therefor. In case any such options, rights or securities shall be issued or sold, or exercisable, convertible or exchangeable for a consideration other than cash payable to the Issuer, the consideration received therefor (determined as set forth in subsection (ii)(x) and (y) above) shall be deemed to be the fair value of such consideration as determined by the Board, after deduction therefrom of any expenses incurred or any underwriting commissions or concessions or discounts paid or allowed by the Issuer in connection therewith. In case any such options, rights or securities shall be issued or sold, or exercisable, convertible or exchangeable in connection with any merger of another corporation into the Issuer, the amount of consideration therefor shall be deemed to be the fair value as determined by the Board of such portion of the assets of such merged corporation as the Board shall determine to be attributable to such options, rights or securities. The Current Market Price per share of Common Stock shall be determined as set forth in Section 5.05 hereof. (e) SUPERSEDING ADJUSTMENT. If, at any time after any adjustment in the number of shares of Warrant Stock comprising a Stock Unit shall have been made on the basis of the issuance of any options or rights, or convertible or exchangeable securities (or options or rights with respect to such securities) pursuant to subsection (d) hereof: (i) the options or rights shall expire prior to exercise or the right to convert or exchange any such securities shall terminate; or (ii) the consideration per share for which shares of Common Stock are issuable pursuant to the terms of such options or rights or convertible or exchangeable securities shall be increased or decreased, other than under or by reason of provisions designed to protect against dilution; such previous adjustment shall be rescinded and annulled. Thereupon, a recomputation shall be made of the effect of such options or rights or convertible or exchangeable securities with respect to shares of Common Stock on the basis of (A)treating the number of shares of Common Stock, if any, theretofore actually issued or issuable pursuant to the previous exercise, conversion or exchange of such options, rights or securities as having been issued on the date or dates of such exercise, conversion or exchange and for the 10 consideration actually received and receivable therefore, and (B)treating any such options, rights or securities which then remain outstanding as having been granted or issued immediately after the time of such increase or decrease for the consideration per share for which shares of Common Stock are issuable upon exercise, conversion or exchange of such options, rights or securities. To the extent called for by the foregoing provisions of this Section 4(e) on the basis aforesaid, a new adjustment in the number of shares of Warrant Stock comprising a Stock Unit shall be made, determined using the Current Market Price used at the time of the original determination, which new adjustment shall supersede the previous adjustment so rescinded and annulled. If the exercise, conversion or exchange price provided for in any such option, right or security shall decrease at any time under or by reason of provisions designed to protect against dilution, then in the case of the delivery of shares of Common Stock upon the exercise, conversion or exchange of any such option, right or security, the Stock Unit purchasable upon the exercise of a Warrant shall forthwith be adjusted in the manner which would have obtained had the adjustment made upon issuance of such option, right or security been made upon the basis of the issuance of (and the aggregate consideration received for) the shares of Common Stock delivered as aforesaid. (f) OTHER PROVISIONS APPLICABLE TO ADJUSTMENTS UNDER THIS SECTION. The following provisions shall be applicable to the making of adjustments of the number of shares of Warrant Stock comprising a Stock Unit: (i) The sale or other disposition of any issued shares of Common Stock owned or held by or for the account of the Issuer shall be deemed to be an issuance thereof for purposes of this Section. (ii) In computing adjustments under this Section, fractional interests in Common Stock shall be taken into account to the nearest one-thousandth of a share. (iii) If the Issuer shall take a record of the holders of its Common Stock for the purpose of entitling them to receive a dividend or distribution or subscription or purchase rights and shall, thereafter and before the distribution thereof, legally abandon its plan to pay or deliver such dividend, distribution, subscription or purchase rights, then thereafter no adjustment shall be required by reason of the taking of such record and any such adjustment previously made in respect thereof shall be rescinded and annulled. 11 (g) MERGER, CONSOLIDATION OR DISPOSITION OF ASSETS. If the Issuer shall merge or consolidate with another corporation, or shall sell, transfer or otherwise dispose of all or substantially all of its assets to another corporation and pursuant to the terms of such merger, consolidation or disposition of assets, cash, shares of common stock or other securities of the successor or acquiring corporation, or property of any nature is to be received by or distributed to the holders of Common Stock of the Issuer, then each holder of Warrants which are by their terms then exercisable shall, at such holder's election, have the right to receive (whether or not such holder exercises such Warrants) the amount it would have been entitled to receive if such holder had exercised such Warrants immediately prior to the occurrence of such merger, consolidation or disposition of assets, net of the exercise price of such Warrants. In case of any such merger, consolidation or disposition of assets in which the foregoing election is not made, the successor or acquiring corporation (and any affiliate thereof issuing securities) shall expressly assume the due and punctual observance and performance of each and every covenant and condition of this Warrant to be performed and observed by the Issuer and all of the obligations and liabilities hereunder, subject to such modifications as may be deemed appropriate (as determined by resolution of the Board and reasonably acceptable to the holders of a majority in interest of the Warrants) in order to provide for adjustments of Stock Units which shall be as nearly equivalent as practicable to the adjustments provided for in this Section. The foregoing provisions shall similarly apply to successive mergers, consolidations and dispositions of assets. (h) OTHER ACTION AFFECTING COMMON STOCK. If at any time or from time to time the Issuer shall take any action affecting its Common Stock, other than an action described in any of the foregoing subsections of this Section or an action taken in the ordinary course of the Issuer's business and consistent with past practice, then, unless in the reasonable opinion of the Board such action will not have a material adverse effect upon the rights of the holders of the Warrants, the number of shares of Warrant Stock comprising a Stock Unit shall be adjusted in such manner and at such time as the Board shall in good faith determine to be equitable in the circumstances, but no such adjustment shall decrease the number of shares of Warrant Stock comprising a Stock Unit. (i) NOTICE OF ADJUSTMENTS. Whenever the number of shares of Warrant Stock comprising a Stock Unit shall be adjusted pursuant to this Agreement, the Issuer shall forthwith obtain a certificate signed by a firm of independent accountants of recognized national standing selected by the Issuer, setting forth, in reasonable detail, the event requiring the adjustment and the method by which such adjustment was calculated and specifying the number of shares of Warrant Stock comprising a Stock Unit, after giving effect to such adjustment or change. The 12 Issuer shall promptly cause a signed copy of such certificate to be delivered to each holder of Warrants. The Issuer shall keep at its office copies of all such certificates and cause the same to be available for inspection at said office during normal business hours by any holder of Warrants or any prospective purchaser of Warrants designated by the registered holder hereof. (j) NOTICE OF CERTAIN CORPORATE ACTION. If the Issuer shall propose (i) to pay any dividend to the holders of its Common Stock or to make any other distribution to the holders of its Common Stock; (ii) to offer to the holders of its Common Stock rights to subscribe for or to purchase any additional shares of Common Stock (or options or rights with respect thereto); (iii) to effect any reclassification of its Common Stock; (iv) to otherwise issue any Common Stock or other securities; (v) to effect any capital reorganization; (vi) to effect any consolidation, merger or sale, transfer or other disposition of all or substantially all of its assets; or (vii) to effect the liquidation, dissolution or winding up of the Issuer, then, in each such case, the Issuer shall give to each holder of Warrants a notice of such proposed action, which shall specify the date on which a record is to be taken for the purposes of such dividend, distribution or rights offer, or the date on which such reclassification, issuance, reorganization, consolidation, merger, sale, transfer, disposition, liquidation, dissolution or winding up is to take place and the date of participation therein by the holders of Common Stock, if any such date is to be fixed, and shall also set forth such facts with respect thereto as shall be reasonably necessary to indicate the effect of such action on the Common Stock, and the number of shares of Warrant Stock which will comprise a Stock Unit after giving effect to any adjustment which will be required as a result of such action. Such notice shall be so given in the case of any action covered by clause (i) or (ii) above at least 20 days prior to the record date for determining holders of the Common Stock for purposes of such action, and in the case of any other such action, at least 20 days prior to the date of the taking of such proposed action or the date of participation therein by the holders of Common Stock, whichever shall be the earlier. (k)NO ADJUSTMENT NECESSARY. Anything to the contrary herein notwithstanding, no adjustment to the number of shares of Warrant Stock comprising a Stock Unit shall be made as a result of, or in connection with, the issuance of shares of Common Stock, or options or warrants to purchase shares of Common Stock, to management at fair market value (as determined by the Board in its reasonable judgment) in an amount up to 12% of the outstanding shares of Common Stock on the Closing Date, on a fully diluted basis. 13 SECTION 5. MISCELLANEOUS. 5.01 OFFICE OF ISSUER. So long as any of the Warrants remains outstanding, the Issuer shall maintain an office in the continental United States of America where the Warrants may be presented for exercise, transfer, division or combination as in this Warrant provided. Such office shall be at c/o 101 Oakley Street, Evansville, Indiana 47710, unless and until the Issuer shall designate and maintain some other office for such purposes and give notice thereof to all Warrant Holders. 5.02 NOTICES GENERALLY. Any notices and other communications pursuant to the provisions hereof shall be sent in accordance with the provisions of Section 8.6 of the Purchase Agreement. 5.03 GOVERNING LAW. The corporate law of the State of Delaware shall govern all issues concerning the relative rights of the Issuer and its Stockholders. All other issues hereunder shall be governed by and construed in accordance with the procedural and substantive laws of the State of New York without regard for its conflicts of laws rules. The Issuer agrees that it may be served with process in State of New York and any action for breach of this Warrant may be prosecuted against it in the courts of that State. 5.04 LIMITATION OF LIABILITY. No provision hereof, in the absence of affirmative action by the Holder to purchase shares of Class B Common Stock, and no mere enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the Exercise Price or as a Stockholder of the Issuer, whether such liability is asserted by the Issuer, by any creditor of the Issuer or any other Person. 5.05 DETERMINATION OF CURRENT MARKET PRICE PER SHARE OF COMMON STOCK. The Current Market Price per share of Common Stock shall in each instance initially be determined by the Issuer in accordance with the provisions of the definition of Current Market Price in Section 1 hereof. The Issuer shall notify the Holders of such determination. If the holders of a majority in interest of the Warrants disagree with the determination of the Issuer, the Issuer shall appoint an Independent Financial Expert to determine the Current Market Price per share of Common Stock and the determination of the Independent Financial Expert shall govern for purposes of determining the adjustment pursuant to this Section. The Issuer shall notify each holder of Warrants of the final determination of the Current Market Price per share of Common Stock. The Issuer shall pay the fees and expenses of the Independent Financial Expert. 5.06 REGISTRATION RIGHTS. The holders of this Warrant shall be entitled to the benefit of the provisions of Article 6A 14 and Article 6C of the Purchase Agreement with regard to the registration for sale of the Warrant Stock. 15 IN WITNESS WHEREOF, the Issuer has duly executed this Amended and Restated Warrant. Dated: May 9, 2000 BPC HOLDING CORPORATION By: /S/ JAMES M. KRATOCHVIL Name: James M. Kratochvil Title: Executive Vice President, Chief Financial Officer, Treasurer and Secretary Annex A to Warrant FORM OF EXERCISE (To be executed by the registered holder hereof) The undersigned registered owner of this Amended and Restated Warrant ("Warrant") irrevocably exercises this Warrant for the purchase of Stock Units of the Issuer, and herewith makes payment therefor, all at the price and on the terms and conditions specified in this Warrant, and requests that (i) certificates and/or other instruments covering such Stock Units be issued in accordance with the instructions given below and (ii) if such Stock Units shall not include all of the Stock Units to which the Holder is entitled under this Warrant, that a new Warrant of like tenor and date for the unpurchased balance of the Stock Units issuable hereunder be delivered to the undersigned. Dated: __________________ ________________________________ (Signature of Registered Holder) Instructions for issuance and registration of Stock Units: ________________________________ Name of Registered Holder (please print) Social Security or Other Identifying Number: _________________________ Please deliver certificate to the following address: ____________________________________ Street _____________________________________ City, State and Zip Code Annex B to Warrant FORM OF ASSIGNMENT (To be executed by the registered holder hereof) FOR VALUE RECEIVED the undersigned registered owner of this Amended and Restated Warrant hereby sells, assigns and transfers unto the assignee named below all the rights of the undersigned under this Warrant with respect to the number of Stock Units covered thereby set forth hereinbelow unto: Number of NAME OF ASSIGNEE ADDRESS STOCK UNITS Dated:__________________ ________________________________ Signature of Registered Holder ________________________________ Name of Registered Holder (Please Print) Witness: ______________________ EX-4.5 7 AMENDED AND RESTATED WARRANT THE TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE CONDITIONS SPECIFIED IN THAT CERTAIN PREFERRED STOCK AND WARRANT PURCHASE AGREEMENT DATED AS OF JUNE 12, 1996 (THE "PURCHASE AGREEMENT"), BY AND AMONG BPC HOLDING CORPORATION, A DELAWARE CORPORATION (SUCCESSOR IN INTEREST TO BPC MERGERCO, INC.) (the "ISSUER"), BPC MERGERCO, INC., A DELAWARE CORPORATION ("MERGERCO"), CHASE VENTURE CAPITAL ASSOCIATES, LLC (FORMERLY KNOWN AS CHASE VENTURE CAPITAL ASSOCIATES, L.P.) AND THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY ("NORTHWESTERN"), AS SUCH PURCHASE AGREEMENT MAY BE MODIFIED AND SUPPLEMENTED AND IN EFFECT FROM TIME TO TIME, AND NO TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE SHALL BE VALID OR EFFECTIVE UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED. A COPY OF THE PURCHASE AGREEMENT IS ON FILE AND MAY BE INSPECTED AT THE PRINCIPAL EXECUTIVE OFFICE OF THE ISSUER. THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND BY THE PROVISIONS OF THE PURCHASE AGREEMENT. THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, AND ACCORDINGLY, SUCH SECURITIES MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH THE REGISTRATION OR QUALIFICATION PROVISIONS OF APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR APPLICABLE EXEMPTIONS THEREFROM. No. of Stock Units: 17,837 Warrant No. 6 WARRANT to Purchase Class B Common Stock of BPC HOLDING CORPORATION THIS IS TO CERTIFY THAT CHASE VENTURE CAPITAL ASSOCIATES, LLC, or its registered assigns, is entitled to purchase in whole or in part from time to time from BPC Holding Corporation, a Delaware corporation (the "ISSUER"), at any time on and after the Effective Date (as hereinafter defined), but not later than 5:00 p.m., New York time, on May 9, 2010 (the "EXPIRATION DATE"), 17,837 Stock Units (as hereinafter defined and subject to adjustment as provided herein) at a purchase price of $0.01 per Stock Unit (the "EXERCISE PRICE"), subject to the terms and conditions provided herein and in the Purchase Agreement (as hereinafter defined). This Amended and Restated Warrant ("Warrant") is issued pursuant to the Preferred Stock and Warrant Purchase Agreement dated as of June 12, 1996 (as modified and supplemented and in effect from time to time, the "PURCHASE AGREEMENT") between the Issuer, Mergerco, Chase Venture Capital Associates, LLC and Northwestern. SECTION 1. CERTAIN DEFINITIONS. (a) Each capitalized term used herein without definition shall have the meaning assigned thereto (or incorporated by reference) in the Purchase Agreement and in the Exhibits thereto. (b) As used herein, the following terms shall have the following meanings (all terms defined in this Section 1 or in other provisions of this Warrant in the singular to have the same meanings when used in the plural and vice versa): "AFFILIATE" means, with respect to any specified Person, any other Person which, directly or indirectly, controls, is under common control with, or is owned or controlled by, such specified Person. For purposes of this definition, (i) "control" means, with respect to any specified Person, either (x) the beneficial ownership of more than 30 percent of any class of equity securities or (y) the power to direct the management or policies of the specified Person through the ownership of voting securities, by contract, voting agreement or otherwise and (ii) the terms "controlling", "control with" and "controlled by", etc., shall have meanings correlative to the foregoing. "BOARD" shall mean the Board of Directors of the Issuer. "BUSINESS DAY" shall mean any day on which commercial banks are not authorized or required to close in New York City. "CLASS B COMMON STOCK" means, the Issuer's Class B Non-Voting Common Stock, $.01 par value per share, or any other common stock or other securities receivable thereon, or into which the Class B Common Stock is convertible or exchangeable, as a result of any recapitalization, reclassification, merger or consolidation of, or deposition of assets by, the Issuer. "COMMON STOCK" shall mean the Common Stock of the Issuer, of any class or series whatsoever, or any other common stock or other securities receivable thereon, or into which the Common Stock is convertible or exchangeable, as a result of any recapitalization, reclassification, merger or consolidation of, or disposition of assets by, the Issuer. "CURRENT MARKET PRICE", shall mean, with respect to a share of Common Stock as of any date (a) for a period of 30 Business Days after the date of the IPO, the offering price of 2 such Common Stock or (b) in any other case (i) the fair market value per share of such Common Stock, as reasonably determined in good faith by the Board, using an appropriate valuation method, assuming an arms-length sale to an independent party of all of the Common Stock of the Issuer, without giving regard to the lack of liquidity of such Common Stock due to any restrictions contained in the Stockholders Agreement, the Stock Purchase Agreement, the Purchase Agreement or otherwise or any discount for minority interests and assuming the conversion or exchange of all securities then outstanding which are convertible into or exchangeable for such Common Stock and the exercise of all rights and warrants (including the Warrants) then outstanding and exercisable to purchase shares of such Common Stock or securities convertible into or exchangeable for shares of such Common Stock, or (ii) if there shall be a public market for such Common Stock, the average of the daily market prices for each day during the 30 consecutive trading days commencing 45 Business Days before such date as of which such a price can be established in the manner set forth below. The market price for each such Business Day shall be the last sale price on such day as reported in the Consolidated Last Sale Reporting System or as quoted in the National Association of Securities Dealers Automated Quotation System, or if such last sale price is not available, the average of the closing bid and asked prices as reported in either such system, or in any other case the higher bid price quoted for such day as reported by The Wall Street Journal and the National Quotation Bureau pink sheets. "EFFECTIVE DATE" shall mean the date set forth on the signature page of this Warrant. "EXERCISE NOTICE" shall have the meaning assigned to such term in Section 2 hereof. "EXERCISE PRICE" shall have the meaning assigned to such term in the first paragraph of this Warrant. "EXPIRATION DATE" shall have the meaning assigned to such term in the first paragraph of this Warrant. "HOLDER" shall mean the registered holder of this Warrant. "INCLUDE" and "INCLUDING" shall be construed as if followed by the phrase ", without being limited to,". "INDEPENDENT FINANCIAL EXPERT" shall mean an investment banking firm of recognized national standing chosen by the Issuer which is not an Affiliate of Atlantic Equity Partners International II, L.P. or an Affiliate or a Stockholder of the Issuer and which is satisfactory to the holders of a majority in interest of the Warrants and the Warrant Stock. 3 "IPO" shall mean the Issuer's first firm commitment underwritten public offering involving the sale of Common Stock of the Issuer, pursuant to an effective registration statement under the Securities Act. "ISSUER" shall have the meaning assigned to such term in the first paragraph of this Warrant. "PERSON" means any individual, corporation, general or limited partnership, joint venture, association, limited liability company, joint stock company, trust, business trust, bank, trust company, estate (including any beneficiaries thereof), unincorporated organization, cooperative, association or governmental branch, authority, agency or political subdivision thereof. "PURCHASE AGREEMENT" shall have the meaning assigned to such term in the second paragraph of this Warrant. "REGULATION Y" shall mean Regulation Y promulgated by the Board of Governors of the Federal Reserve System (12 C.F.R.
225), or any successor regulation. "SECURITIES ACT" shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder. "STOCKHOLDER" shall mean any Person who directly or indirectly owns any shares of Common Stock (including Warrant Stock). "STOCK UNIT" shall mean one share of Class B Common Stock, as such Class B Common Stock is constituted on the date hereof, and thereafter shall mean such number of shares (including any fractional shares) of Class B Common Stock and other securities, cash or other property as shall result from the adjustments specified in Section 4 hereof. "WARRANT HOLDER" shall mean any Person who acquires Warrants or Warrant Stock pursuant to the provisions of the Purchase Agreement, including any transferees of Warrants or Warrant Stock. "WARRANT STOCK" shall mean all shares of Class B Common Stock issuable from time to time upon exercise of the Warrants. "WARRANTS" shall mean the warrants originally issued by the Issuer pursuant to the Purchase Agreement (of which this Warrant is one), evidencing rights to purchase up to the aggregate amount of Stock Units set forth therein, and all Warrants issued upon transfer, division, or combination of, or in substitution for, such Warrants. 4 SECTION 2. EXERCISE OF WARRANT. On and after the Effective Date and until 5:00 p.m., New York time, on the Expiration Date, the Holder may exercise this Warrant, on one or more occasions, on any Business Day, in whole or in part, by delivering to the Issuer, at its office maintained for such purpose pursuant to Section 5.01 hereof, (a) a written notice of the Holder's election to exercise this Warrant, which notice shall specify the number of Stock Units to be purchased (the "EXERCISE NOTICE"), (b) payment of the Exercise Price (payable as set forth below) for the number of Stock Units as to which this Warrant is being exercised, and (c) this Warrant. The Exercise Price shall be payable (a) in cash or by certified or official bank check payable to the order of the Issuer or by wire transfer of immediately available funds to the account of the Issuer or (b) by delivery of this Warrant Certificate to the Issuer for cancellation in accordance with the following formula: in exchange for each share of Class B Common Stock issuable on exercise of each Warrant represented by this Warrant Certificate that is being exercised, such holder shall receive such number of shares of Class B Common Stock as is equal to the product of (i) the number of shares of Class B Common Stock issuable upon exercise of the Warrants being exercised at such time multiplied by (ii) a fraction, the numerator of which is the Current Market Price per share of Class B Common Stock at such time minus the Exercise Price per share of Class B Common Stock at such time, and the denominator of which is the Current Market Price per share of Class B Common Stock at such time. Upon receipt thereof, the Issuer shall, as promptly as practicable and in any event within 5 Business Days thereafter, execute or cause to be executed and deliver or cause to be delivered to the Holder a stock certificate or certificates representing the aggregate number of shares of Warrant Stock and other securities issuable upon such exercise and any other property to which such Holder is entitled. The stock certificate or certificates for Warrant Stock so delivered shall be in such denominations as may be specified in the Exercise Notice and shall be registered in the name of the Holder or such other name or names as shall be designated in such Exercise Notice. Such stock certificate or certificates shall be deemed to have been issued and the Holder or any other Person so designated to be named therein shall be deemed to have become a holder of record of such shares, including, to the extent permitted by law and to the extent such shares represent voting stock of the Issuer, the right to vote such shares or to consent or to receive notice as a Stockholder, as of the date on which the last of the Exercise Notice, payment of the Exercise Price and this Warrant is received by the Issuer as aforesaid. If this Warrant shall have been exercised only in part, the Issuer shall, at the time of delivery of the certificate or certificates representing Warrant Stock and other securities, execute and 5 deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased Stock Units called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant, or, at the request of the Holder, appropriate notation may be made on this Warrant and the same returned to the Holder. All shares of Class B Common Stock issuable upon the exercise of this Warrant shall, upon payment therefor in accordance herewith, be duly and validly issued, fully paid and nonassessable and free and clear of any liens, charges or other encumbrances of any nature. The Issuer shall not be required to issue a fractional share of Class B Common Stock upon exercise of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Issuer shall pay (at the time this Warrant is exercised for all shares of Class B Common Stock remaining subject hereto) a cash adjustment in respect of such final fraction in an amount equal to the same fraction of the Current Market Price per share of Class B Common Stock on the date of exercise. SECTION 3. TRANSFER, DIVISION AND COMBINATION. (a) Notwithstanding anything herein to the contrary, no holder of Warrants subject to the provisions of Regulation Y shall transfer any Warrants or shares of Warrant Stock held by it, if, as a result of such transfer or the right to effect such transfer, such holder would be deemed under Regulation Y to have the power to exercise, directly or indirectly, a controlling influence over the management or policies of the Issuer (and, for purposes of this restriction, a reasoned opinion of counsel to such holder (which is based on facts and circumstances deemed appropriate by such counsel) to the effect that such holder does not exercise such a controlling influence shall be conclusive). For the purposes of this Section 3(a), a holder of Warrants will not be deemed to be subject to Regulation Y to the extent such holder is entitled to hold the Warrants pursuant to 12 C.F.R.
225.22(c)(4). (b) Subject to the foregoing, this Warrant and all rights hereunder are transferable (subject to any restrictive legends hereon), in whole or in part, upon surrender of this Warrant to the Issuer, together with a written assignment of this Warrant duly executed by the Holder hereof or such holder's agent or attorney. Such written assignment shall be in the form of the Assignment Form attached as Annex B hereto. Upon such surrender the Issuer shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees and in the denominations specified in such instrument of assignment, and the original Warrant shall promptly be canceled. 6 (c)This Warrant may be exchanged for other Warrants of the same series upon presentation to the Issuer, together with a written notice specifying the denominations in which new Warrants are to be issued, signed by the Holder hereof. The Issuer shall execute and deliver a new Warrant or Warrants to the holder in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice. The Issuer shall pay all expenses, taxes (including transfer taxes) and other charges payable in connection with the preparation, issuance and delivery of the Warrants, including any transfer or exchange thereof. (d)The Issuer shall maintain books for the registration and transfer of the Warrants, and shall allow each holder of Warrants to inspect such books at such reasonable times as such holder shall request. SECTION 4. ADJUSTMENTS. (a) DIVIDENDS, DISTRIBUTIONS AND PURCHASES. (i) If at any time the Issuer shall pay any dividend or make any other distribution to holders of its Common Stock of any cash, evidence of indebtedness or other property of any nature whatsoever (other than as provided in subsections (b), (c)(i)(A) and (d)(i)(A) hereof), the Issuer shall at the same time pay or distribute to each holder of Warrants (whether or not such holder exercises such Warrants) the cash, evidence of indebtedness or other property such holder would have been entitled to receive if such holder had exercised such Warrants immediately prior to the record date for such dividend or distribution; (ii) If at any time the Issuer shall propose to purchase or redeem any shares of its Common Stock (other than shares of Class B or Class C Common Stock validly repurchased or redeemed, solely as permitted by the terms of the Senior Secured Note Indenture, pursuant to any management equity subscription, stockholders or stock option agreement) for cash, evidence of indebtedness or other property of any nature whatsoever, the Issuer shall deliver to each holder of Warrants which are by their terms then exercisable for shares of Warrant Stock a notice of such proposed purchase or redemption, and each such holder shall, at its option, have the right to require the Issuer to at the same time purchase or redeem Warrants and shares of Warrant Stock owned by such holder, in the same proportion as the number of shares of Common Stock to be so purchased or redeemed bears to the total number of shares of Common Stock outstanding at such time, on the same terms and conditions as the proposed purchase or redemption of such other Common Stock 7 and for the same consideration per Warrant or share of Warrant Stock, as the case may be, as is paid to the holders of such other Common Stock for each share of Common Stock so redeemed or purchased, minus, in the case of Warrants, the exercise price of the Warrants to be so purchased or redeemed. (b) SUBDIVISIONS AND COMBINATIONS. If at any time the Issuer shall (i) take a record of the holders of its Common Stock for the purpose of entitling them to receive a dividend or other distribution of Common Stock; (ii) subdivide or reclassify its outstanding shares of Common Stock into a larger number of shares of Common Stock; or (iii) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stock; then immediately after the occurrence of any such event the number of shares of Warrant Stock comprising a Stock Unit shall be adjusted so as to equal the number of shares of Warrant Stock which such holder would have been entitled to receive if such holder had exercised the Warrant immediately prior to the occurrence of such event. (c) ISSUANCE OF COMMON STOCK. In case at any time the Issuer (i)(A) shall take a record of the holders of its Common Stock for the purpose of entitling them to subscribe for or purchase shares of any class or series of Common Stock or (B) shall otherwise sell or issue any such securities and (ii) the consideration per share of Common Stock to be paid upon such issuance or subscription is less than the Current Market Price per share of Common Stock on such record date, then the number of shares of Warrant Stock comprising a Stock Unit shall be adjusted to be that number determined by multiplying the number of shares of Warrant Stock comprising a Stock Unit immediately prior to such record date by a fraction (not to be less than one) (i) the numerator of which shall be equal to the product of (A) the number of shares of Common Stock outstanding after giving effect to such issuance, distribution, subscription or purchase and (B) the Current Market Price per share of Common Stock determined immediately before such record date and (ii) the denominator of which shall be equal to the sum of (A) the product of (1) the number of shares of Common Stock outstanding immediately before such record date and (2) the Current Market Price per share of Common Stock determined immediately before such record date and (B) the aggregate consideration to be received by the Issuer for the total number of shares of Common Stock to be issued, distributed, subscribed for or purchased. Aggregate consideration for purposes of the preceding clause (B) shall be 8 determined as follows: In case any shares of Common Stock shall be issued or sold for cash, the consideration received therefor shall be deemed to be the amount payable to the Issuer therefor. In case any shares of Common Stock shall be issued or sold for a consideration other than cash payable to the Issuer, the consideration received therefor shall be deemed to be the fair value of such consideration as determined by the Board. In case any shares of Common Stock shall be issued in connection with any merger of another corporation into the Issuer, the amount of consideration therefor shall be deemed to be the fair value as determined by the Board of such portion of the assets of such merged corporation as the Board shall determine to be attributable to such shares of Common Stock. (d) ISSUANCE OF OTHER SECURITIES, RIGHTS OR OBLIGATIONS. In case at any time the Issuer (i)(A) shall take a record of the holders of its Common Stock for the purpose of entitling them to subscribe for or purchase options to purchase or rights to subscribe for Common Stock or securities directly or indirectly convertible into or exchangeable for Common Stock (or options or rights with respect to such securities) or (B) shall otherwise issue or sell any such options, rights or securities and (ii) the consideration per share for which Common Stock is deliverable upon exercise of such options or rights or conversion or exchange of such securities (determined by dividing (x) the total amount received or receivable by the Issuer in consideration of the issuance of or subscription for such options, rights or securities, plus the minimum aggregate amount of premiums (if any) payable to the Issuer upon such exercise, conversion or exchange, by (y) the total maximum number of shares of Common Stock necessary to effect the exercise, conversion or exchange of all such options, rights or securities) shall be less than the Current Market Price per share of Common Stock on such record date or sale or issuance date, as the case may be, then the number of shares of Warrant Stock comprising a Stock Unit shall be adjusted to be that number determined by multiplying the number of shares of Warrant Stock comprising a Stock Unit immediately prior to such date by a fraction (not to be less than one) (i) the numerator of which shall be equal to the product of (A) the total maximum number of shares of Common Stock outstanding after giving effect to the assumed exercise or conversion of all such options, rights or securities and (B) the Current Market Price per share of Common Stock determined immediately before such date and (ii) the denominator of which shall be equal to the sum of (A) the product of (1) the number of shares of Common Stock outstanding immediately before such date and (2) the Current Market Price per share of the Common Stock determined immediately before such date and (B) the aggregate consideration per share (determined as set forth in subsection (ii)(x) and (y) above) for which Common Stock is deliverable upon exercise conversion or exchange of such options, rights or securities. Aggregate consideration for purposes of the preceding clause (B) shall be determined as follows: In case any 9 options, rights or convertible or exchangeable securities (or options or rights with respect thereto) shall be issued or sold, or exercisable, convertible or exchangeable for cash, the consideration received therefor shall be deemed to be the amount payable to the Issuer (determined as set forth in subsection (ii)(x) and (y) above) therefor. In case any such options, rights or securities shall be issued or sold, or exercisable, convertible or exchangeable for a consideration other than cash payable to the Issuer, the consideration received therefor (determined as set forth in subsection (ii)(x) and (y) above) shall be deemed to be the fair value of such consideration as determined by the Board, after deduction therefrom of any expenses incurred or any underwriting commissions or concessions or discounts paid or allowed by the Issuer in connection therewith. In case any such options, rights or securities shall be issued or sold, or exercisable, convertible or exchangeable in connection with any merger of another corporation into the Issuer, the amount of consideration therefor shall be deemed to be the fair value as determined by the Board of such portion of the assets of such merged corporation as the Board shall determine to be attributable to such options, rights or securities. The Current Market Price per share of Common Stock shall be determined as set forth in Section 5.05 hereof. (e) SUPERSEDING ADJUSTMENT. If, at any time after any adjustment in the number of shares of Warrant Stock comprising a Stock Unit shall have been made on the basis of the issuance of any options or rights, or convertible or exchangeable securities (or options or rights with respect to such securities) pursuant to subsection (d) hereof: (i) the options or rights shall expire prior to exercise or the right to convert or exchange any such securities shall terminate; or (ii) the consideration per share for which shares of Common Stock are issuable pursuant to the terms of such options or rights or convertible or exchangeable securities shall be increased or decreased, other than under or by reason of provisions designed to protect against dilution; such previous adjustment shall be rescinded and annulled. Thereupon, a recomputation shall be made of the effect of such options or rights or convertible or exchangeable securities with respect to shares of Common Stock on the basis of (A)treating the number of shares of Common Stock, if any, theretofore actually issued or issuable pursuant to the previous exercise, conversion or exchange of such options, 10 rights or securities as having been issued on the date or dates of such exercise, conversion or exchange and for the consideration actually received and receivable therefore, and (B)treating any such options, rights or securities which then remain outstanding as having been granted or issued immediately after the time of such increase or decrease for the consideration per share for which shares of Common Stock are issuable upon exercise, conversion or exchange of such options, rights or securities. To the extent called for by the foregoing provisions of this Section 4(e) on the basis aforesaid, a new adjustment in the number of shares of Warrant Stock comprising a Stock Unit shall be made, determined using the Current Market Price used at the time of the original determination, which new adjustment shall supersede the previous adjustment so rescinded and annulled. If the exercise, conversion or exchange price provided for in any such option, right or security shall decrease at any time under or by reason of provisions designed to protect against dilution, then in the case of the delivery of shares of Common Stock upon the exercise, conversion or exchange of any such option, right or security, the Stock Unit purchasable upon the exercise of a Warrant shall forthwith be adjusted in the manner which would have obtained had the adjustment made upon issuance of such option, right or security been made upon the basis of the issuance of (and the aggregate consideration received for) the shares of Common Stock delivered as aforesaid. (f) OTHER PROVISIONS APPLICABLE TO ADJUSTMENTS UNDER THIS SECTION. The following provisions shall be applicable to the making of adjustments of the number of shares of Warrant Stock comprising a Stock Unit: (i) The sale or other disposition of any issued shares of Common Stock owned or held by or for the account of the Issuer shall be deemed to be an issuance thereof for purposes of this Section. (ii) In computing adjustments under this Section, fractional interests in Common Stock shall be taken into account to the nearest one-thousandth of a share. (iii) If the Issuer shall take a record of the holders of its Common Stock for the purpose of entitling them to receive a dividend or distribution or subscription or purchase rights and shall, thereafter and before the distribution thereof, legally abandon its plan to pay or deliver such dividend, distribution, 11 subscription or purchase rights, then thereafter no adjustment shall be required by reason of the taking of such record and any such adjustment previously made in respect thereof shall be rescinded and annulled. (g) MERGER, CONSOLIDATION OR DISPOSITION OF ASSETS. If the Issuer shall merge or consolidate with another corporation, or shall sell, transfer or otherwise dispose of all or substantially all of its assets to another corporation and pursuant to the terms of such merger, consolidation or disposition of assets, cash, shares of common stock or other securities of the successor or acquiring corporation, or property of any nature is to be received by or distributed to the holders of Common Stock of the Issuer, then each holder of Warrants which are by their terms then exercisable shall, at such holder's election, have the right to receive (whether or not such holder exercises such Warrants) the amount it would have been entitled to receive if such holder had exercised such Warrants immediately prior to the occurrence of such merger, consolidation or disposition of assets, net of the exercise price of such Warrants. In case of any such merger, consolidation or disposition of assets in which the foregoing election is not made, the successor or acquiring corporation (and any affiliate thereof issuing securities) shall expressly assume the due and punctual observance and performance of each and every covenant and condition of this Warrant to be performed and observed by the Issuer and all of the obligations and liabilities hereunder, subject to such modifications as may be deemed appropriate (as determined by resolution of the Board and reasonably acceptable to the holders of a majority in interest of the Warrants) in order to provide for adjustments of Stock Units which shall be as nearly equivalent as practicable to the adjustments provided for in this Section. The foregoing provisions shall similarly apply to successive mergers, consolidations and dispositions of assets. (h) OTHER ACTION AFFECTING COMMON STOCK. If at any time or from time to time the Issuer shall take any action affecting its Common Stock, other than an action described in any of the foregoing subsections of this Section or an action taken in the ordinary course of the Issuer's business and consistent with past practice, then, unless in the reasonable opinion of the Board such action will not have a material adverse effect upon the rights of the holders of the Warrants, the number of shares of Warrant Stock comprising a Stock Unit shall be adjusted in such manner and at such time as the Board shall in good faith determine to be equitable in the circumstances, but no such adjustment shall decrease the number of shares of Warrant Stock comprising a Stock Unit. (i) NOTICE OF ADJUSTMENTS. Whenever the number of shares of Warrant Stock comprising a Stock Unit shall be adjusted pursuant to this Agreement, the Issuer shall forthwith obtain a certificate signed by a firm of independent accountants of 12 recognized national standing selected by the Issuer, setting forth, in reasonable detail, the event requiring the adjustment and the method by which such adjustment was calculated and specifying the number of shares of Warrant Stock comprising a Stock Unit, after giving effect to such adjustment or change. The Issuer shall promptly cause a signed copy of such certificate to be delivered to each holder of Warrants. The Issuer shall keep at its office copies of all such certificates and cause the same to be available for inspection at said office during normal business hours by any holder of Warrants or any prospective purchaser of Warrants designated by the registered holder hereof. (j) NOTICE OF CERTAIN CORPORATE ACTION. If the Issuer shall propose (i) to pay any dividend to the holders of its Common Stock or to make any other distribution to the holders of its Common Stock; (ii) to offer to the holders of its Common Stock rights to subscribe for or to purchase any additional shares of Common Stock (or options or rights with respect thereto); (iii) to effect any reclassification of its Common Stock; (iv) to otherwise issue any Common Stock or other securities; (v) to effect any capital reorganization; (vi) to effect any consolidation, merger or sale, transfer or other disposition of all or substantially all of its assets; or (vii) to effect the liquidation, dissolution or winding up of the Issuer, then, in each such case, the Issuer shall give to each holder of Warrants a notice of such proposed action, which shall specify the date on which a record is to be taken for the purposes of such dividend, distribution or rights offer, or the date on which such reclassification, issuance, reorganization, consolidation, merger, sale, transfer, disposition, liquidation, dissolution or winding up is to take place and the date of participation therein by the holders of Common Stock, if any such date is to be fixed, and shall also set forth such facts with respect thereto as shall be reasonably necessary to indicate the effect of such action on the Common Stock, and the number of shares of Warrant Stock which will comprise a Stock Unit after giving effect to any adjustment which will be required as a result of such action. Such notice shall be so given in the case of any action covered by clause (i) or (ii) above at least 20 days prior to the record date for determining holders of the Common Stock for purposes of such action, and in the case of any other such action, at least 20 days prior to the date of the taking of such proposed action or the date of participation therein by the holders of Common Stock, whichever shall be the earlier. (k) NO ADJUSTMENT NECESSARY. Anything to the contrary herein notwithstanding, no adjustment to the number of shares of Warrant Stock comprising a Stock Unit shall be made as a result of, or in connection with, the issuance of shares of Common Stock, or options or warrants to purchase shares of Common Stock, to management at fair market value (as determined by the Board in its reasonable judgment) in an amount up to 12% of the 13 outstanding shares of Common Stock on the Closing Date, on a fully diluted basis. SECTION 5. MISCELLANEOUS. 5.01 OFFICE OF ISSUER. So long as any of the Warrants remains outstanding, the Issuer shall maintain an office in the continental United States of America where the Warrants may be presented for exercise, transfer, division or combination as in this Warrant provided. Such office shall be at c/o 101 Oakley Street, Evansville, Indiana 47710, unless and until the Issuer shall designate and maintain some other office for such purposes and give notice thereof to all Warrant Holders. 5.02 NOTICES GENERALLY. Any notices and other communications pursuant to the provisions hereof shall be sent in accordance with the provisions of Section 8.6 of the Purchase Agreement. 5.03 GOVERNING LAW. The corporate law of the State of Delaware shall govern all issues concerning the relative rights of the Issuer and its Stockholders. All other issues hereunder shall be governed by and construed in accordance with the procedural and substantive laws of the State of New York without regard for its conflicts of laws rules. The Issuer agrees that it may be served with process in State of New York and any action for breach of this Warrant may be prosecuted against it in the courts of that State. 5.04 LIMITATION OF LIABILITY. No provision hereof, in the absence of affirmative action by the Holder to purchase shares of Class B Common Stock, and no mere enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the Exercise Price or as a Stockholder of the Issuer, whether such liability is asserted by the Issuer, by any creditor of the Issuer or any other Person. 5.05 DETERMINATION OF CURRENT MARKET PRICE PER SHARE OF COMMON STOCK. The Current Market Price per share of Common Stock shall in each instance initially be determined by the Issuer in accordance with the provisions of the definition of Current Market Price in Section 1 hereof. The Issuer shall notify the Holders of such determination. If the holders of a majority in interest of the Warrants disagree with the determination of the Issuer, the Issuer shall appoint an Independent Financial Expert to determine the Current Market Price per share of Common Stock and the determination of the Independent Financial Expert shall govern for purposes of determining the adjustment pursuant to this Section. The Issuer shall notify each holder of Warrants of the final determination of the Current Market Price per share of Common Stock. The Issuer shall pay the fees and expenses of the Independent Financial Expert. 14 5.06 REGISTRATION RIGHTS. The holders of this Warrant shall be entitled to the benefit of the provisions of Article 6A and Article 6C of the Purchase Agreement with regard to the registration for sale of the Warrant Stock. 15 - - IN WITNESS WHEREOF, the Issuer has duly executed this Amended and Restated Warrant. Dated: May 9, 2000 BPC HOLDING CORPORATION By: /S/ JAMES M. KRATOCHVIL Name: James M. Kratochvil Title: Executive Vice President, Chief Financial Officer, Treasurer and Secretary Annex A to Warrant FORM OF EXERCISE (To be executed by the registered holder hereof) The undersigned registered owner of this Amended and Restated Warrant ("Warrant") irrevocably exercises this Warrant for the purchase of Stock Units of the Issuer, and herewith makes payment therefor, all at the price and on the terms and conditions specified in this Warrant, and requests that (i) certificates and/or other instruments covering such Stock Units be issued in accordance with the instructions given below and (ii) if such Stock Units shall not include all of the Stock Units to which the Holder is entitled under this Warrant, that a new Warrant of like tenor and date for the unpurchased balance of the Stock Units issuable hereunder be delivered to the undersigned. Dated: __________________ ________________________________ (Signature of Registered Holder) Instructions for issuance and registration of Stock Units: ________________________________ Name of Registered Holder (please print) Social Security or Other Identifying Number: _________________________ Please deliver certificate to the following address: ____________________________________ Street _____________________________________ City, State and Zip Code Annex B to Warrant FORM OF ASSIGNMENT (To be executed by the registered holder hereof) FOR VALUE RECEIVED the undersigned registered owner of this Amended and Restated Warrant hereby sells, assigns and transfers unto the assignee named below all the rights of the undersigned under this Warrant with respect to the number of Stock Units covered thereby set forth herein below unto: Number of NAME OF ASSIGNEE ADDRESS STOCK UNITS Dated:__________________ ________________________________ Signature of Registered Holder ________________________________ Name of Registered Holder (Please Print) Witness: ______________________ EX-4.6 8 AMENDED AND RESTATED WARRANT THE TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE CONDITIONS SPECIFIED IN THAT CERTAIN PREFERRED STOCK AND WARRANT PURCHASE AGREEMENT DATED AS OF JUNE 12, 1996 (THE "PURCHASE AGREEMENT"), BY AND AMONG BPC HOLDING CORPORATION, A DELAWARE CORPORATION (SUCCESSOR IN INTEREST TO BPC MERGERCO, INC.) (the "ISSUER"), BPC MERGERCO, INC., A DELAWARE CORPORATION ("MERGERCO"), CHASE VENTURE CAPITAL ASSOCIATES, LLC (FORMERLY KNOWN AS CHASE VENTURE CAPITAL ASSOCIATES, L.P.) ("CVCA") AND THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, AS SUCH PURCHASE AGREEMENT MAY BE MODIFIED AND SUPPLEMENTED AND IN EFFECT FROM TIME TO TIME, AND NO TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE SHALL BE VALID OR EFFECTIVE UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED. A COPY OF THE PURCHASE AGREEMENT IS ON FILE AND MAY BE INSPECTED AT THE PRINCIPAL EXECUTIVE OFFICE OF THE ISSUER. THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND BY THE PROVISIONS OF THE PURCHASE AGREEMENT. THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, AND ACCORDINGLY, SUCH SECURITIES MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH THE REGISTRATION OR QUALIFICATION PROVISIONS OF APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR APPLICABLE EXEMPTIONS THEREFROM. No. of Stock Units: 3,749 Warrant No. 7 WARRANT to Purchase Class B Common Stock of BPC HOLDING CORPORATION THIS IS TO CERTIFY THAT THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, or its registered assigns, is entitled to purchase in whole or in part from time to time from BPC Holding Corporation a Delaware corporation (the "ISSUER"), at any time on and after the Effective Date (as hereinafter defined), but not later than 5:00 p.m., New York time, on May 9, 2010 (the "EXPIRATION DATE"), 3,749 Stock Units (as hereinafter defined and subject to adjustment as provided herein) at a purchase price of $0.01 per Stock Unit (the "EXERCISE PRICE"), subject to the terms and conditions provided herein and in the Purchase Agreement (as hereinafter defined). This Amended and Restated Warrant ("Warrant") is issued pursuant to the Preferred Stock and Warrant Purchase Agreement dated as of June 12, 1996 (as modified and supplemented and in effect from time to time, the "PURCHASE AGREEMENT") between the Issuer, Mergerco, CVCA and The Northwestern Mutual Life Insurance Company. SECTION 1. CERTAIN DEFINITIONS. (a) Each capitalized term used herein without definition shall have the meaning assigned thereto (or incorporated by reference) in the Purchase Agreement and in the Exhibits thereto. (b) As used herein, the following terms shall have the following meanings (all terms defined in this Section 1 or in other provisions of this Warrant in the singular to have the same meanings when used in the plural and vice versa): "AFFILIATE" means, with respect to any specified Person, any other Person which, directly or indirectly, controls, is under common control with, or is owned or controlled by, such specified Person. For purposes of this definition, (i) "control" means, with respect to any specified Person, either (x) the beneficial ownership of more than 30 percent of any class of equity securities or (y) the power to direct the management or policies of the specified Person through the ownership of voting securities, by contract, voting agreement or otherwise and (ii) the terms "controlling", "control with" and "controlled by", etc., shall have meanings correlative to the foregoing. "BOARD" shall mean the Board of Directors of the Issuer. "BUSINESS DAY" shall mean any day on which commercial banks are not authorized or required to close in New York City. "CLASS B COMMON STOCK" means, the Issuer's Class B Voting Common Stock, $.01 par value per share, or any other common stock or other securities receivable thereon, or into which the Class B Common Stock is convertible or exchangeable, as a result of any recapitalization, reclassification, merger or consolidation of, or deposition of assets by, the Issuer. "COMMON STOCK" shall mean the Common Stock of the Issuer, of any class or series whatsoever, or any other common stock or other securities receivable thereon, or into which the Common Stock is convertible or exchangeable, as a result of any recapitalization, reclassification, merger or consolidation of, or disposition of assets by, the Issuer. 2 "CURRENT MARKET PRICE", shall mean, with respect to a share of Common Stock as of any date (a) for a period of 30 Business Days after the date of the IPO, the offering price of such Common Stock or (b) in any other case (i) the fair market value per share of such Common Stock, as reasonably determined in good faith by the Board, using an appropriate valuation method, assuming an arms-length sale to an independent party of all of the Common Stock of the Issuer, without giving regard to the lack of liquidity of such Common Stock due to any restrictions contained in the Stockholders Agreement, the Stock Purchase Agreement, the Purchase Agreement or otherwise or any discount for minority interests and assuming the conversion or exchange of all securities then outstanding which are convertible into or exchangeable for such Common Stock and the exercise of all rights and warrants (including the Warrants) then outstanding and exercisable to purchase shares of such Common Stock or securities convertible into or exchangeable for shares of such Common Stock, or (ii) if there shall be a public market for such Common Stock, the average of the daily market prices for each day during the 30 consecutive trading days commencing 45 Business Days before such date as of which such a price can be established in the manner set forth below. The market price for each such Business Day shall be the last sale price on such day as reported in the Consolidated Last Sale Reporting System or as quoted in the National Association of Securities Dealers Automated Quotation System, or if such last sale price is not available, the average of the closing bid and asked prices as reported in either such system, or in any other case the higher bid price quoted for such day as reported by The Wall Street Journal and the National Quotation Bureau pink sheets. "EFFECTIVE DATE" shall mean the date set forth on the signature page of this Warrant. "EXERCISE NOTICE" shall have the meaning assigned to such term in Section 2 hereof. "EXERCISE PRICE" shall have the meaning assigned to such term in the first paragraph of this Warrant. "EXPIRATION DATE" shall have the meaning assigned to such term in the first paragraph of this Warrant. "HOLDER" shall mean the registered holder of this Warrant. "INCLUDE" and "INCLUDING" shall be construed as if followed by the phrase ", without being limited to,". "INDEPENDENT FINANCIAL EXPERT" shall mean an investment banking firm of recognized national standing chosen by the Issuer which is not an Affiliate of Atlantic Equity Partners International II, L.P. or an Affiliate or a 3 Stockholder of the Issuer and which is satisfactory to the holders of a majority in interest of the Warrants and the Warrant Stock. "IPO" shall mean the Issuer's first firm commitment underwritten public offering involving the sale of Common Stock of the Issuer, pursuant to an effective registration statement under the Securities Act. "ISSUER" shall have the meaning assigned to such term in the first paragraph of this Warrant. "PERSON" means any individual, corporation, general or limited partnership, joint venture, association, limited liability company, joint stock company, trust, business trust, bank, trust company, estate (including any beneficiaries thereof), unincorporated organization, cooperative, association or governmental branch, authority, agency or political subdivision thereof. "PURCHASE AGREEMENT" shall have the meaning assigned to such term in the second paragraph of this Warrant. "REGULATION Y" shall mean Regulation Y promulgated by the Board of Governors of the Federal Reserve System (12 C.F.R.
225), or any successor regulation. "SECURITIES ACT" shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder. "STOCKHOLDER" shall mean any Person who directly or indirectly owns any shares of Common Stock (including Warrant Stock). "STOCK UNIT" shall mean one share of Class B Common Stock, as such Class B Common Stock is constituted on the date hereof, and thereafter shall mean such number of shares (including any fractional shares) of Class B Common Stock and other securities, cash or other property as shall result from the adjustments specified in Section 4 hereof. "WARRANT HOLDER" shall mean any Person who acquires Warrants or Warrant Stock pursuant to the provisions of the Purchase Agreement, including any transferees of Warrants or Warrant Stock. "WARRANT STOCK" shall mean all shares of Class B Common Stock issuable from time to time upon exercise of the Warrants. "WARRANTS" shall mean the warrants originally issued by the Issuer pursuant to the Purchase Agreement (of which this Warrant is one), evidencing rights to purchase up to the aggregate amount of Stock Units set forth therein, 4 and all Warrants issued upon transfer, division, or combination of, or in substitution for, such Warrants. SECTION 2. EXERCISE OF WARRANT. On and after the Effective Date and until 5:00 p.m., New York time, on the Expiration Date, the Holder may exercise this Warrant, on one or more occasions, on any Business Day, in whole or in part, by delivering to the Issuer, at its office maintained for such purpose pursuant to Section 5.01 hereof, (a) a written notice of the Holder's election to exercise this Warrant, which notice shall specify the number of Stock Units to be purchased (the "EXERCISE NOTICE"), (b) payment of the Exercise Price (payable as set forth below) for the number of Stock Units as to which this Warrant is being exercised, and (c) this Warrant. The Exercise Price shall be payable (a) in cash or by certified or official bank check payable to the order of the Issuer or by wire transfer of immediately available funds to the account of the Issuer or (b) by delivery of this Warrant Certificate to the Issuer for cancellation in accordance with the following formula: in exchange for each share of Class B Common Stock issuable on exercise of each Warrant represented by this Warrant Certificate that is being exercised, such holder shall receive such number of shares of Class B Common Stock as is equal to the product of (i) the number of shares of Class B Common Stock issuable upon exercise of the Warrants being exercised at such time multiplied by (ii) a fraction, the numerator of which is the Current Market Price per share of Class B Common Stock at such time minus the Exercise Price per share of Class B Common Stock at such time, and the denominator of which is the Current Market Price per share of Class B Common Stock at such time. Upon receipt thereof, the Issuer shall, as promptly as practicable and in any event within 5 Business Days thereafter, execute or cause to be executed and deliver or cause to be delivered to the Holder a stock certificate or certificates representing the aggregate number of shares of Warrant Stock and other securities issuable upon such exercise and any other property to which such Holder is entitled. The stock certificate or certificates for Warrant Stock so delivered shall be in such denominations as may be specified in the Exercise Notice and shall be registered in the name of the Holder or such other name or names as shall be designated in such Exercise Notice. Such stock certificate or certificates shall be deemed to have been issued and the Holder or any other Person so designated to be named therein shall be deemed to have become a holder of record of such shares, including, to the extent permitted by law and to the extent such shares represent voting stock of the Issuer, the right to vote such shares or to consent or to receive notice as a Stockholder, as of the date on which the last of the Exercise Notice, payment of the Exercise Price and this Warrant is received by the Issuer as aforesaid. If this Warrant shall have been exercised only in part, the Issuer shall, at the time of delivery of the certificate or 5 certificates representing Warrant Stock and other securities, execute and deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased Stock Units called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant, or, at the request of the Holder, appropriate notation may be made on this Warrant and the same returned to the Holder. All shares of Class B Common Stock issuable upon the exercise of this Warrant shall, upon payment therefor in accordance herewith, be duly and validly issued, fully paid and nonassessable and free and clear of any liens, charges or other encumbrances of any nature. The Issuer shall not be required to issue a fractional share of Class B Common Stock upon exercise of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Issuer shall pay (at the time this Warrant is exercised for all shares of Class B Common Stock remaining subject hereto) a cash adjustment in respect of such final fraction in an amount equal to the same fraction of the Current Market Price per share of Class B Common Stock on the date of exercise. SECTION 3. TRANSFER, DIVISION AND COMBINATION. (a) Notwithstanding anything herein to the contrary, no holder of Warrants subject to the provisions of Regulation Y shall transfer any Warrants or shares of Warrant Stock held by it, if, as a result of such transfer or the right to effect such transfer, such holder would be deemed under Regulation Y to have the power to exercise, directly or indirectly, a controlling influence over the management or policies of the Issuer (and, for purposes of this restriction, a reasoned opinion of counsel to such holder (which is based on facts and circumstances deemed appropriate by such counsel) to the effect that such holder does not exercise such a controlling influence shall be conclusive). For the purposes of this Section 3(a), a holder of Warrants will not be deemed to be subject to Regulation Y to the extent such holder is entitled to hold the Warrants pursuant to 12 C.F.R.
225.22(c)(4). (b) Subject to the foregoing, this Warrant and all rights hereunder are transferable (subject to any restrictive legends hereon), in whole or in part, upon surrender of this Warrant to the Issuer, together with a written assignment of this Warrant duly executed by the Holder hereof or such holder's agent or attorney. Such written assignment shall be in the form of the Assignment Form attached as Annex B hereto. Upon such surrender the Issuer shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees and in the denominations specified in such instrument of assignment, and the original Warrant shall promptly be canceled. 6 (c)This Warrant may be exchanged for other Warrants of the same series upon presentation to the Issuer, together with a written notice specifying the denominations in which new Warrants are to be issued, signed by the Holder hereof. The Issuer shall execute and deliver a new Warrant or Warrants to the holder in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice. The Issuer shall pay all expenses, taxes (including transfer taxes) and other charges payable in connection with the preparation, issuance and delivery of the Warrants, including any transfer or exchange thereof. (d)The Issuer shall maintain books for the registration and transfer of the Warrants, and shall allow each holder of Warrants to inspect such books at such reasonable times as such holder shall request. SECTION 4. ADJUSTMENTS. (a) DIVIDENDS, DISTRIBUTIONS AND PURCHASES. (i) If at any time the Issuer shall pay any dividend or make any other distribution to holders of its Common Stock of any cash, evidence of indebtedness or other property of any nature whatsoever (other than as provided in subsections (b), (c)(i)(A) and (d)(i)(A) hereof), the Issuer shall at the same time pay or distribute to each holder of Warrants (whether or not such holder exercises such Warrants) the cash, evidence of indebtedness or other property such holder would have been entitled to receive if such holder had exercised such Warrants immediately prior to the record date for such dividend or distribution; (ii) If at any time the Issuer shall propose to purchase or redeem any shares of its Common Stock (other than shares of Class B or Class C Common Stock validly repurchased or redeemed, solely as permitted by the terms of the Senior Secured Note Indenture, pursuant to any management equity subscription, stockholders or stock option agreement) for cash, evidence of indebtedness or other property of any nature whatsoever, the Issuer shall deliver to each holder of Warrants which are by their terms then exercisable for shares of Warrant Stock a notice of such proposed purchase or redemption, and each such holder shall, at its option, have the right to require the Issuer to at the same time purchase or redeem Warrants and shares of Warrant Stock owned by such holder, in the same proportion as the number of shares of Common Stock to be so purchased or redeemed bears to the total number of shares of Common Stock outstanding at such time, on the same terms and conditions as the proposed purchase or redemption of such other Common Stock and for the same consideration per 7 Warrant or share of Warrant Stock, as the case may be, as is paid to the holders of such other Common Stock for each share of Common Stock so redeemed or purchased, minus, in the case of Warrants, the exercise price of the Warrants to be so purchased or redeemed. (b) SUBDIVISIONS AND COMBINATIONS. If at any time the Issuer shall (i) take a record of the holders of its Common Stock for the purpose of entitling them to receive a dividend or other distribution of Common Stock; (ii) subdivide or reclassify its outstanding shares of Common Stock into a larger number of shares of Common Stock; or (iii) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stock; then immediately after the occurrence of any such event the number of shares of Warrant Stock comprising a Stock Unit shall be adjusted so as to equal the number of shares of Warrant Stock which such holder would have been entitled to receive if such holder had exercised the Warrant immediately prior to the occurrence of such event. (c) ISSUANCE OF COMMON STOCK. In case at any time the Issuer (i)(A) shall take a record of the holders of its Common Stock for the purpose of entitling them to subscribe for or purchase shares of any class or series of Common Stock or (B) shall otherwise sell or issue any such securities and (ii) the consideration per share of Common Stock to be paid upon such issuance or subscription is less than the Current Market Price per share of Common Stock on such record date, then the number of shares of Warrant Stock comprising a Stock Unit shall be adjusted to be that number determined by multiplying the number of shares of Warrant Stock comprising a Stock Unit immediately prior to such record date by a fraction (not to be less than one) (i) the numerator of which shall be equal to the product of (A) the number of shares of Common Stock outstanding after giving effect to such issuance, distribution, subscription or purchase and (B) the Current Market Price per share of Common Stock determined immediately before such record date and (ii) the denominator of which shall be equal to the sum of (A) the product of (1) the number of shares of Common Stock outstanding immediately before such record date and (2) the Current Market Price per share of Common Stock determined immediately before such record date and (B) the aggregate consideration to be received by the Issuer for the total number of shares of Common Stock to be issued, distributed, subscribed for or purchased. Aggregate consideration for purposes of the preceding clause (B) shall be determined as follows: In case any shares of Common Stock shall be issued or sold for cash, the consideration received therefor shall 8 be deemed to be the amount payable to the Issuer therefor. In case any shares of Common Stock shall be issued or sold for a consideration other than cash payable to the Issuer, the consideration received therefor shall be deemed to be the fair value of such consideration as determined by the Board. In case any shares of Common Stock shall be issued in connection with any merger of another corporation into the Issuer, the amount of consideration therefor shall be deemed to be the fair value as determined by the Board of such portion of the assets of such merged corporation as the Board shall determine to be attributable to such shares of Common Stock. (d) ISSUANCE OF OTHER SECURITIES, RIGHTS OR OBLIGATIONS. In case at any time the Issuer (i)(A) shall take a record of the holders of its Common Stock for the purpose of entitling them to subscribe for or purchase options to purchase or rights to subscribe for Common Stock or securities directly or indirectly convertible into or exchangeable for Common Stock (or options or rights with respect to such securities) or (B) shall otherwise issue or sell any such options, rights or securities and (ii) the consideration per share for which Common Stock is deliverable upon exercise of such options or rights or conversion or exchange of such securities (determined by dividing (x) the total amount received or receivable by the Issuer in consideration of the issuance of or subscription for such options, rights or securities, plus the minimum aggregate amount of premiums (if any) payable to the Issuer upon such exercise, conversion or exchange, by (y) the total maximum number of shares of Common Stock necessary to effect the exercise, conversion or exchange of all such options, rights or securities) shall be less than the Current Market Price per share of Common Stock on such record date or sale or issuance date, as the case may be, then the number of shares of Warrant Stock comprising a Stock Unit shall be adjusted to be that number determined by multiplying the number of shares of Warrant Stock comprising a Stock Unit immediately prior to such date by a fraction (not to be less than one) (i) the numerator of which shall be equal to the product of (A) the total maximum number of shares of Common Stock outstanding after giving effect to the assumed exercise or conversion of all such options, rights or securities and (B) the Current Market Price per share of Common Stock determined immediately before such date and (ii) the denominator of which shall be equal to the sum of (A) the product of (1) the number of shares of Common Stock outstanding immediately before such date and (2) the Current Market Price per share of the Common Stock determined immediately before such date and (B) the aggregate consideration per share (determined as set forth in subsection (ii)(x) and (y) above) for which Common Stock is deliverable upon exercise conversion or exchange of such options, rights or securities. Aggregate consideration for purposes of the preceding clause (B) shall be determined as follows: In case any options, rights or convertible or exchangeable securities (or options or rights with respect thereto) shall be issued or sold, or exercisable, convertible or exchangeable for cash, 9 the consideration received therefor shall be deemed to be the amount payable to the Issuer (determined as set forth in subsection (ii)(x) and (y) above) therefor. In case any such options, rights or securities shall be issued or sold, or exercisable, convertible or exchangeable for a consideration other than cash payable to the Issuer, the consideration received therefor (determined as set forth in subsection (ii)(x) and (y) above) shall be deemed to be the fair value of such consideration as determined by the Board, after deduction therefrom of any expenses incurred or any underwriting commissions or concessions or discounts paid or allowed by the Issuer in connection therewith. In case any such options, rights or securities shall be issued or sold, or exercisable, convertible or exchangeable in connection with any merger of another corporation into the Issuer, the amount of consideration therefor shall be deemed to be the fair value as determined by the Board of such portion of the assets of such merged corporation as the Board shall determine to be attributable to such options, rights or securities. The Current Market Price per share of Common Stock shall be determined as set forth in Section 5.05 hereof. (e) SUPERSEDING ADJUSTMENT. If, at any time after any adjustment in the number of shares of Warrant Stock comprising a Stock Unit shall have been made on the basis of the issuance of any options or rights, or convertible or exchangeable securities (or options or rights with respect to such securities) pursuant to subsection (d) hereof: (i) the options or rights shall expire prior to exercise or the right to convert or exchange any such securities shall terminate; or (ii) the consideration per share for which shares of Common Stock are issuable pursuant to the terms of such options or rights or convertible or exchangeable securities shall be increased or decreased, other than under or by reason of provisions designed to protect against dilution; such previous adjustment shall be rescinded and annulled. Thereupon, a recomputation shall be made of the effect of such options or rights or convertible or exchangeable securities with respect to shares of Common Stock on the basis of (A)treating the number of shares of Common Stock, if any, theretofore actually issued or issuable pursuant to the previous exercise, conversion or exchange of such options, rights or securities as having been issued on the date or dates of such exercise, conversion or exchange and for the 10 consideration actually received and receivable therefore, and (B)treating any such options, rights or securities which then remain outstanding as having been granted or issued immediately after the time of such increase or decrease for the consideration per share for which shares of Common Stock are issuable upon exercise, conversion or exchange of such options, rights or securities. To the extent called for by the foregoing provisions of this Section 4(e) on the basis aforesaid, a new adjustment in the number of shares of Warrant Stock comprising a Stock Unit shall be made, determined using the Current Market Price used at the time of the original determination, which new adjustment shall supersede the previous adjustment so rescinded and annulled. If the exercise, conversion or exchange price provided for in any such option, right or security shall decrease at any time under or by reason of provisions designed to protect against dilution, then in the case of the delivery of shares of Common Stock upon the exercise, conversion or exchange of any such option, right or security, the Stock Unit purchasable upon the exercise of a Warrant shall forthwith be adjusted in the manner which would have obtained had the adjustment made upon issuance of such option, right or security been made upon the basis of the issuance of (and the aggregate consideration received for) the shares of Common Stock delivered as aforesaid. (f) OTHER PROVISIONS APPLICABLE TO ADJUSTMENTS UNDER THIS SECTION. The following provisions shall be applicable to the making of adjustments of the number of shares of Warrant Stock comprising a Stock Unit: (i) The sale or other disposition of any issued shares of Common Stock owned or held by or for the account of the Issuer shall be deemed to be an issuance thereof for purposes of this Section. (ii) In computing adjustments under this Section, fractional interests in Common Stock shall be taken into account to the nearest one-thousandth of a share. (iii) If the Issuer shall take a record of the holders of its Common Stock for the purpose of entitling them to receive a dividend or distribution or subscription or purchase rights and shall, thereafter and before the distribution thereof, legally abandon its plan to pay or deliver such dividend, distribution, subscription or purchase rights, then thereafter no adjustment shall be required by reason of the taking of such record and any such adjustment previously made in respect thereof shall be rescinded and annulled. 11 (g) MERGER, CONSOLIDATION OR DISPOSITION OF ASSETS. If the Issuer shall merge or consolidate with another corporation, or shall sell, transfer or otherwise dispose of all or substantially all of its assets to another corporation and pursuant to the terms of such merger, consolidation or disposition of assets, cash, shares of common stock or other securities of the successor or acquiring corporation, or property of any nature is to be received by or distributed to the holders of Common Stock of the Issuer, then each holder of Warrants which are by their terms then exercisable shall, at such holder's election, have the right to receive (whether or not such holder exercises such Warrants) the amount it would have been entitled to receive if such holder had exercised such Warrants immediately prior to the occurrence of such merger, consolidation or disposition of assets, net of the exercise price of such Warrants. In case of any such merger, consolidation or disposition of assets in which the foregoing election is not made, the successor or acquiring corporation (and any affiliate thereof issuing securities) shall expressly assume the due and punctual observance and performance of each and every covenant and condition of this Warrant to be performed and observed by the Issuer and all of the obligations and liabilities hereunder, subject to such modifications as may be deemed appropriate (as determined by resolution of the Board and reasonably acceptable to the holders of a majority in interest of the Warrants) in order to provide for adjustments of Stock Units which shall be as nearly equivalent as practicable to the adjustments provided for in this Section. The foregoing provisions shall similarly apply to successive mergers, consolidations and dispositions of assets. (h) OTHER ACTION AFFECTING COMMON STOCK. If at any time or from time to time the Issuer shall take any action affecting its Common Stock, other than an action described in any of the foregoing subsections of this Section or an action taken in the ordinary course of the Issuer's business and consistent with past practice, then, unless in the reasonable opinion of the Board such action will not have a material adverse effect upon the rights of the holders of the Warrants, the number of shares of Warrant Stock comprising a Stock Unit shall be adjusted in such manner and at such time as the Board shall in good faith determine to be equitable in the circumstances, but no such adjustment shall decrease the number of shares of Warrant Stock comprising a Stock Unit. (i) NOTICE OF ADJUSTMENTS. Whenever the number of shares of Warrant Stock comprising a Stock Unit shall be adjusted pursuant to this Agreement, the Issuer shall forthwith obtain a certificate signed by a firm of independent accountants of recognized national standing selected by the Issuer, setting forth, in reasonable detail, the event requiring the adjustment and the method by which such adjustment was calculated and specifying the number of shares of Warrant Stock comprising a Stock Unit, after giving effect to such adjustment or change. The Issuer shall promptly cause a signed copy of 12 such certificate to be delivered to each holder of Warrants. The Issuer shall keep at its office copies of all such certificates and cause the same to be available for inspection at said office during normal business hours by any holder of Warrants or any prospective purchaser of Warrants designated by the registered holder hereof. (j) NOTICE OF CERTAIN CORPORATE ACTION. If the Issuer shall propose (i) to pay any dividend to the holders of its Common Stock or to make any other distribution to the holders of its Common Stock; (ii) to offer to the holders of its Common Stock rights to subscribe for or to purchase any additional shares of Common Stock (or options or rights with respect thereto); (iii) to effect any reclassification of its Common Stock; (iv) to otherwise issue any Common Stock or other securities; (v) to effect any capital reorganization; (vi) to effect any consolidation, merger or sale, transfer or other disposition of all or substantially all of its assets; or (vii) to effect the liquidation, dissolution or winding up of the Issuer, then, in each such case, the Issuer shall give to each holder of Warrants a notice of such proposed action, which shall specify the date on which a record is to be taken for the purposes of such dividend, distribution or rights offer, or the date on which such reclassification, issuance, reorganization, consolidation, merger, sale, transfer, disposition, liquidation, dissolution or winding up is to take place and the date of participation therein by the holders of Common Stock, if any such date is to be fixed, and shall also set forth such facts with respect thereto as shall be reasonably necessary to indicate the effect of such action on the Common Stock, and the number of shares of Warrant Stock which will comprise a Stock Unit after giving effect to any adjustment which will be required as a result of such action. Such notice shall be so given in the case of any action covered by clause (i) or (ii) above at least 20 days prior to the record date for determining holders of the Common Stock for purposes of such action, and in the case of any other such action, at least 20 days prior to the date of the taking of such proposed action or the date of participation therein by the holders of Common Stock, whichever shall be the earlier. (k)NO ADJUSTMENT NECESSARY. Anything to the contrary herein notwithstanding, no adjustment to the number of shares of Warrant Stock comprising a Stock Unit shall be made as a result of, or in connection with, the issuance of shares of Common Stock, or options or warrants to purchase shares of Common Stock, to management at fair market value (as determined by the Board in its reasonable judgment) in an amount up to 12% of the outstanding shares of Common Stock on the Closing Date, on a fully diluted basis. 13 SECTION 5. MISCELLANEOUS. 5.01 OFFICE OF ISSUER. So long as any of the Warrants remains outstanding, the Issuer shall maintain an office in the continental United States of America where the Warrants may be presented for exercise, transfer, division or combination as in this Warrant provided. Such office shall be at c/o 101 Oakley Street, Evansville, Indiana 47710, unless and until the Issuer shall designate and maintain some other office for such purposes and give notice thereof to all Warrant Holders. 5.02 NOTICES GENERALLY. Any notices and other communications pursuant to the provisions hereof shall be sent in accordance with the provisions of Section 8.6 of the Purchase Agreement. 5.03 GOVERNING LAW. The corporate law of the State of Delaware shall govern all issues concerning the relative rights of the Issuer and its Stockholders. All other issues hereunder shall be governed by and construed in accordance with the procedural and substantive laws of the State of New York without regard for its conflicts of laws rules. The Issuer agrees that it may be served with process in State of New York and any action for breach of this Warrant may be prosecuted against it in the courts of that State. 5.04 LIMITATION OF LIABILITY. No provision hereof, in the absence of affirmative action by the Holder to purchase shares of Class B Common Stock, and no mere enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the Exercise Price or as a Stockholder of the Issuer, whether such liability is asserted by the Issuer, by any creditor of the Issuer or any other Person. 5.05 DETERMINATION OF CURRENT MARKET PRICE PER SHARE OF COMMON STOCK. The Current Market Price per share of Common Stock shall in each instance initially be determined by the Issuer in accordance with the provisions of the definition of Current Market Price in Section 1 hereof. The Issuer shall notify the Holders of such determination. If the holders of a majority in interest of the Warrants disagree with the determination of the Issuer, the Issuer shall appoint an Independent Financial Expert to determine the Current Market Price per share of Common Stock and the determination of the Independent Financial Expert shall govern for purposes of determining the adjustment pursuant to this Section. The Issuer shall notify each holder of Warrants of the final determination of the Current Market Price per share of Common Stock. The Issuer shall pay the fees and expenses of the Independent Financial Expert. 5.06 REGISTRATION RIGHTS. The holders of this Warrant shall be entitled to the benefit of the provisions of Article 6A 14 and Article 6C of the Purchase Agreement with regard to the registration for sale of the Warrant Stock. 15 IN WITNESS WHEREOF, the Issuer has duly executed this Amended and Restated Warrant. Dated: May 9, 2000 BPC HOLDING CORPORATION By: /S/ JAMES M. KRATOCHVIL Name: James M. Kratochvil Title: Executive Vice President, Chief Financial Officer, Treasurer and Secretary Annex A to Warrant FORM OF EXERCISE (To be executed by the registered holder hereof) The undersigned registered owner of this Amended and Restated Warrant ("Warrant") irrevocably exercises this Warrant for the purchase of Stock Units of the Issuer, and herewith makes payment therefor, all at the price and on the terms and conditions specified in this Warrant, and requests that (i) certificates and/or other instruments covering such Stock Units be issued in accordance with the instructions given below and (ii) if such Stock Units shall not include all of the Stock Units to which the Holder is entitled under this Warrant, that a new Warrant of like tenor and date for the unpurchased balance of the Stock Units issuable hereunder be delivered to the undersigned. Dated: __________________ ________________________________ (Signature of Registered Holder) Instructions for issuance and registration of Stock Units: ________________________________ Name of Registered Holder (please print) Social Security or Other Identifying Number: _________________________ Please deliver certificate to the following address: ____________________________________ Street _____________________________________ City, State and Zip Code Annex B to Warrant FORM OF ASSIGNMENT (To be executed by the registered holder hereof) FOR VALUE RECEIVED the undersigned registered owner of this Amended and Restated Warrant hereby sells, assigns and transfers unto the assignee named below all the rights of the undersigned under this Warrant with respect to the number of Stock Units covered thereby set forth hereinbelow unto: Number of NAME OF ASSIGNEE ADDRESS STOCK UNITS Dated:__________________ ________________________________ Signature of Registered Holder ________________________________ Name of Registered Holder (Please Print) Witness: ______________________ EX-4.7 9 AMENDED AND RESTATED WARRANT THE TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE CONDITIONS SPECIFIED IN THAT CERTAIN PREFERRED STOCK AND WARRANT PURCHASE AGREEMENT DATED AS OF JUNE 12, 1996 (THE "PURCHASE AGREEMENT"), BY AND AMONG BPC HOLDING CORPORATION, A DELAWARE CORPORATION (SUCCESSOR IN INTEREST TO BPC MERGERCO, INC.) (the "ISSUER"), BPC MERGERCO, INC., A DELAWARE CORPORATION ("MERGERCO"), CHASE VENTURE CAPITAL ASSOCIATES, LLC (FORMERLY KNOWN AS CHASE VENTURE CAPITAL ASSOCIATES, L.P.) ("CVCA") AND THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, AS SUCH PURCHASE AGREEMENT MAY BE MODIFIED AND SUPPLEMENTED AND IN EFFECT FROM TIME TO TIME, AND NO TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE SHALL BE VALID OR EFFECTIVE UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED. A COPY OF THE PURCHASE AGREEMENT IS ON FILE AND MAY BE INSPECTED AT THE PRINCIPAL EXECUTIVE OFFICE OF THE ISSUER. THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND BY THE PROVISIONS OF THE PURCHASE AGREEMENT. THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, AND ACCORDINGLY, SUCH SECURITIES MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH THE REGISTRATION OR QUALIFICATION PROVISIONS OF APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR APPLICABLE EXEMPTIONS THEREFROM. No. of Stock Units: 11,891 Warrant No. 8 WARRANT to Purchase Class B Common Stock of BPC HOLDING CORPORATION THIS IS TO CERTIFY THAT THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, or its registered assigns, is entitled to purchase in whole or in part from time to time from BPC Holding Corporation, a Delaware corporation (the "ISSUER"), at any time on and after the Effective Date (as hereinafter defined), but not later than 5:00 p.m., New York time, on May 9, 2010 (the "EXPIRATION DATE"), 11,891 Stock Units (as hereinafter defined and subject to adjustment as provided herein) at a purchase price of $0.01 per Stock Unit (the "EXERCISE PRICE"), subject to the terms and conditions provided herein and in the Purchase Agreement (as hereinafter defined). This Amended and Restated Warrant ("Warrant") is issued pursuant to the Preferred Stock and Warrant Purchase Agreement dated as of June 12, 1996 (as modified and supplemented and in effect from time to time, the "PURCHASE AGREEMENT") between the Issuer, Mergerco, CVCA and The Northwestern Mutual Life Insurance Company. SECTION 1. CERTAIN DEFINITIONS. (a) Each capitalized term used herein without definition shall have the meaning assigned thereto (or incorporated by reference) in the Purchase Agreement and in the Exhibits thereto. (b) As used herein, the following terms shall have the following meanings (all terms defined in this Section 1 or in other provisions of this Warrant in the singular to have the same meanings when used in the plural and vice versa): "AFFILIATE" means, with respect to any specified Person, any other Person which, directly or indirectly, controls, is under common control with, or is owned or controlled by, such specified Person. For purposes of this definition, (i) "control" means, with respect to any specified Person, either (x) the beneficial ownership of more than 30 percent of any class of equity securities or (y) the power to direct the management or policies of the specified Person through the ownership of voting securities, by contract, voting agreement or otherwise and (ii) the terms "controlling", "control with" and "controlled by", etc., shall have meanings correlative to the foregoing. "BOARD" shall mean the Board of Directors of the Issuer. "BUSINESS DAY" shall mean any day on which commercial banks are not authorized or required to close in New York City. "CLASS B COMMON STOCK" means, the Issuer's Class B Non-Voting Common Stock, $.01 par value per share, or any other common stock or other securities receivable thereon, or into which the Class B Common Stock is convertible or exchangeable, as a result of any recapitalization, reclassification, merger or consolidation of, or deposition of assets by, the Issuer. "COMMON STOCK" shall mean the Common Stock of the Issuer, of any class or series whatsoever, or any other common stock or other securities receivable thereon, or into which the Common Stock is convertible or exchangeable, as a result of any recapitalization, reclassification, merger or consolidation of, or disposition of assets by, the Issuer. "CURRENT MARKET PRICE", shall mean, with respect to a share of Common Stock as of any date (a) for a period of 30 Business Days after the date of the 2 IPO, the offering price of such Common Stock or (b) in any other case (i) the fair market value per share of such Common Stock, as reasonably determined in good faith by the Board, using an appropriate valuation method, assuming an arms-length sale to an independent party of all of the Common Stock of the Issuer, without giving regard to the lack of liquidity of such Common Stock due to any restrictions contained in the Stockholders Agreement, the Stock Purchase Agreement, the Purchase Agreement or otherwise or any discount for minority interests and assuming the conversion or exchange of all securities then outstanding which are convertible into or exchangeable for such Common Stock and the exercise of all rights and warrants (including the Warrants) then outstanding and exercisable to purchase shares of such Common Stock or securities convertible into or exchangeable for shares of such Common Stock, or (ii) if there shall be a public market for such Common Stock, the average of the daily market prices for each day during the 30 consecutive trading days commencing 45 Business Days before such date as of which such a price can be established in the manner set forth below. The market price for each such Business Day shall be the last sale price on such day as reported in the Consolidated Last Sale Reporting System or as quoted in the National Association of Securities Dealers Automated Quotation System, or if such last sale price is not available, the average of the closing bid and asked prices as reported in either such system, or in any other case the higher bid price quoted for such day as reported by The Wall Street Journal and the National Quotation Bureau pink sheets. "EFFECTIVE DATE" shall mean the date set forth on the signature page of this Warrant. "EXERCISE NOTICE" shall have the meaning assigned to such term in Section 2 hereof. "EXERCISE PRICE" shall have the meaning assigned to such term in the first paragraph of this Warrant. "EXPIRATION DATE" shall have the meaning assigned to such term in the first paragraph of this Warrant. "HOLDER" shall mean the registered holder of this Warrant. "INCLUDE" and "INCLUDING" shall be construed as if followed by the phrase ", without being limited to,". "INDEPENDENT FINANCIAL EXPERT" shall mean an investment banking firm of recognized national standing chosen by the Issuer which is not an Affiliate of Atlantic Equity Partners International II, L.P. or an Affiliate or a 3 Stockholder of the Issuer and which is satisfactory to the holders of a majority in interest of the Warrants and the Warrant Stock. "IPO" shall mean the Issuer's first firm commitment underwritten public offering involving the sale of Common Stock of the Issuer, pursuant to an effective registration statement under the Securities Act. "ISSUER" shall have the meaning assigned to such term in the first paragraph of this Warrant. "PERSON" means any individual, corporation, general or limited partnership, joint venture, association, limited liability company, joint stock company, trust, business trust, bank, trust company, estate (including any beneficiaries thereof), unincorporated organization, cooperative, association or governmental branch, authority, agency or political subdivision thereof. "PURCHASE AGREEMENT" shall have the meaning assigned to such term in the second paragraph of this Warrant. "REGULATION Y" shall mean Regulation Y promulgated by the Board of Governors of the Federal Reserve System (12 C.F.R.
225), or any successor regulation. "SECURITIES ACT" shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder. "STOCKHOLDER" shall mean any Person who directly or indirectly owns any shares of Common Stock (including Warrant Stock). "STOCK UNIT" shall mean one share of Class B Common Stock, as such Class B Common Stock is constituted on the date hereof, and thereafter shall mean such number of shares (including any fractional shares) of Class B Common Stock and other securities, cash or other property as shall result from the adjustments specified in Section 4 hereof. "WARRANT HOLDER" shall mean any Person who acquires Warrants or Warrant Stock pursuant to the provisions of the Purchase Agreement, including any transferees of Warrants or Warrant Stock. "WARRANT STOCK" shall mean all shares of Class B Common Stock issuable from time to time upon exercise of the Warrants. "WARRANTS" shall mean the warrants originally issued by the Issuer pursuant to the Purchase Agreement (of which this Warrant is one), evidencing 4 rights to purchase up to the aggregate amount of Stock Units set forth therein, and all Warrants issued upon transfer, division, or combination of, or in substitution for, such Warrants. SECTION 2. EXERCISE OF WARRANT. On and after the Effective Date and until 5:00 p.m., New York time, on the Expiration Date, the Holder may exercise this Warrant, on one or more occasions, on any Business Day, in whole or in part, by delivering to the Issuer, at its office maintained for such purpose pursuant to Section 5.01 hereof, (a) a written notice of the Holder's election to exercise this Warrant, which notice shall specify the number of Stock Units to be purchased (the "EXERCISE NOTICE"), (b) payment of the Exercise Price (payable as set forth below) for the number of Stock Units as to which this Warrant is being exercised, and (c) this Warrant. The Exercise Price shall be payable (a) in cash or by certified or official bank check payable to the order of the Issuer or by wire transfer of immediately available funds to the account of the Issuer or (b) by delivery of this Warrant Certificate to the Issuer for cancellation in accordance with the following formula: in exchange for each share of Class B Common Stock issuable on exercise of each Warrant represented by this Warrant Certificate that is being exercised, such holder shall receive such number of shares of Class B Common Stock as is equal to the product of (i) the number of shares of Class B Common Stock issuable upon exercise of the Warrants being exercised at such time multiplied by (ii) a fraction, the numerator of which is the Current Market Price per share of Class B Common Stock at such time minus the Exercise Price per share of Class B Common Stock at such time, and the denominator of which is the Current Market Price per share of Class B Common Stock at such time. Upon receipt thereof, the Issuer shall, as promptly as practicable and in any event within 5 Business Days thereafter, execute or cause to be executed and deliver or cause to be delivered to the Holder a stock certificate or certificates representing the aggregate number of shares of Warrant Stock and other securities issuable upon such exercise and any other property to which such Holder is entitled. The stock certificate or certificates for Warrant Stock so delivered shall be in such denominations as may be specified in the Exercise Notice and shall be registered in the name of the Holder or such other name or names as shall be designated in such Exercise Notice. Such stock certificate or certificates shall be deemed to have been issued and the Holder or any other Person so designated to be named therein shall be deemed to have become a holder of record of such shares, including, to the extent permitted by law and to the extent such shares represent voting stock of the Issuer, the right to vote such shares or to consent or to receive notice as a Stockholder, as of the date on which the last of the Exercise 5 Notice, payment of the Exercise Price and this Warrant is received by the Issuer as aforesaid. If this Warrant shall have been exercised only in part, the Issuer shall, at the time of delivery of the certificate or certificates representing Warrant Stock and other securities, execute and deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased Stock Units called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant, or, at the request of the Holder, appropriate notation may be made on this Warrant and the same returned to the Holder. All shares of Class B Common Stock issuable upon the exercise of this Warrant shall, upon payment therefor in accordance herewith, be duly and validly issued, fully paid and nonassessable and free and clear of any liens, charges or other encumbrances of any nature. The Issuer shall not be required to issue a fractional share of Class B Common Stock upon exercise of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Issuer shall pay (at the time this Warrant is exercised for all shares of Class B Common Stock remaining subject hereto) a cash adjustment in respect of such final fraction in an amount equal to the same fraction of the Current Market Price per share of Class B Common Stock on the date of exercise. SECTION 3. TRANSFER, DIVISION AND COMBINATION. (a) Notwithstanding anything herein to the contrary, no holder of Warrants subject to the provisions of Regulation Y shall transfer any Warrants or shares of Warrant Stock held by it, if, as a result of such transfer or the right to effect such transfer, such holder would be deemed under Regulation Y to have the power to exercise, directly or indirectly, a controlling influence over the management or policies of the Issuer (and, for purposes of this restriction, a reasoned opinion of counsel to such holder (which is based on facts and circumstances deemed appropriate by such counsel) to the effect that such holder does not exercise such a controlling influence shall be conclusive). For the purposes of this Section 3(a), a holder of Warrants will not be deemed to be subject to Regulation Y to the extent such holder is entitled to hold the Warrants pursuant to 12 C.F.R.
225.22(c)(4). (b) Subject to the foregoing, this Warrant and all rights hereunder are transferable (subject to any restrictive legends hereon), in whole or in part, upon surrender of this Warrant to the Issuer, together with a written assignment of this Warrant duly executed by the Holder hereof or such holder's agent or attorney. Such written assignment shall be in the form of the Assignment Form attached as Annex B hereto. Upon such surrender the 6 Issuer shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees and in the denominations specified in such instrument of assignment, and the original Warrant shall promptly be canceled. (c)This Warrant may be exchanged for other Warrants of the same series upon presentation to the Issuer, together with a written notice specifying the denominations in which new Warrants are to be issued, signed by the Holder hereof. The Issuer shall execute and deliver a new Warrant or Warrants to the holder in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice. The Issuer shall pay all expenses, taxes (including transfer taxes) and other charges payable in connection with the preparation, issuance and delivery of the Warrants, including any transfer or exchange thereof. (d)The Issuer shall maintain books for the registration and transfer of the Warrants, and shall allow each holder of Warrants to inspect such books at such reasonable times as such holder shall request. SECTION 4. ADJUSTMENTS. (a) DIVIDENDS, DISTRIBUTIONS AND PURCHASES. (i) If at any time the Issuer shall pay any dividend or make any other distribution to holders of its Common Stock of any cash, evidence of indebtedness or other property of any nature whatsoever (other than as provided in subsections (b), (c)(i)(A) and (d)(i)(A) hereof), the Issuer shall at the same time pay or distribute to each holder of Warrants (whether or not such holder exercises such Warrants) the cash, evidence of indebtedness or other property such holder would have been entitled to receive if such holder had exercised such Warrants immediately prior to the record date for such dividend or distribution; (ii) If at any time the Issuer shall propose to purchase or redeem any shares of its Common Stock (other than shares of Class B or Class C Common Stock validly repurchased or redeemed, solely as permitted by the terms of the Senior Secured Note Indenture, pursuant to any management equity subscription, stockholders or stock option agreement) for cash, evidence of indebtedness or other property of any nature whatsoever, the Issuer shall deliver to each holder of Warrants which are by their terms then exercisable for shares of Warrant Stock a notice of such proposed purchase or redemption, and each such holder shall, at its option, have the right to require the Issuer to at the same time purchase or redeem 7 Warrants and shares of Warrant Stock owned by such holder, in the same proportion as the number of shares of Common Stock to be so purchased or redeemed bears to the total number of shares of Common Stock outstanding at such time, on the same terms and conditions as the proposed purchase or redemption of such other Common Stock and for the same consideration per Warrant or share of Warrant Stock, as the case may be, as is paid to the holders of such other Common Stock for each share of Common Stock so redeemed or purchased, minus, in the case of Warrants, the exercise price of the Warrants to be so purchased or redeemed. (b) SUBDIVISIONS AND COMBINATIONS. If at any time the Issuer shall (i) take a record of the holders of its Common Stock for the purpose of entitling them to receive a dividend or other distribution of Common Stock; (ii) subdivide or reclassify its outstanding shares of Common Stock into a larger number of shares of Common Stock; or (iii) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stock; then immediately after the occurrence of any such event the number of shares of Warrant Stock comprising a Stock Unit shall be adjusted so as to equal the number of shares of Warrant Stock which such holder would have been entitled to receive if such holder had exercised the Warrant immediately prior to the occurrence of such event. (c) ISSUANCE OF COMMON STOCK. In case at any time the Issuer (i)(A) shall take a record of the holders of its Common Stock for the purpose of entitling them to subscribe for or purchase shares of any class or series of Common Stock or (B) shall otherwise sell or issue any such securities and (ii) the consideration per share of Common Stock to be paid upon such issuance or subscription is less than the Current Market Price per share of Common Stock on such record date, then the number of shares of Warrant Stock comprising a Stock Unit shall be adjusted to be that number determined by multiplying the number of shares of Warrant Stock comprising a Stock Unit immediately prior to such record date by a fraction (not to be less than one) (i) the numerator of which shall be equal to the product of (A) the number of shares of Common Stock outstanding after giving effect to such issuance, distribution, subscription or purchase and (B) the Current Market Price per share of Common Stock determined immediately before such record date and (ii) the denominator of which shall be equal to the sum of 8 (A) the product of (1) the number of shares of Common Stock outstanding immediately before such record date and (2) the Current Market Price per share of Common Stock determined immediately before such record date and (B) the aggregate consideration to be received by the Issuer for the total number of shares of Common Stock to be issued, distributed, subscribed for or purchased. Aggregate consideration for purposes of the preceding clause (B) shall be determined as follows: In case any shares of Common Stock shall be issued or sold for cash, the consideration received therefor shall be deemed to be the amount payable to the Issuer therefor. In case any shares of Common Stock shall be issued or sold for a consideration other than cash payable to the Issuer, the consideration received therefor shall be deemed to be the fair value of such consideration as determined by the Board. In case any shares of Common Stock shall be issued in connection with any merger of another corporation into the Issuer, the amount of consideration therefor shall be deemed to be the fair value as determined by the Board of such portion of the assets of such merged corporation as the Board shall determine to be attributable to such shares of Common Stock. (d) ISSUANCE OF OTHER SECURITIES, RIGHTS OR OBLIGATIONS. In case at any time the Issuer (i)(A) shall take a record of the holders of its Common Stock for the purpose of entitling them to subscribe for or purchase options to purchase or rights to subscribe for Common Stock or securities directly or indirectly convertible into or exchangeable for Common Stock (or options or rights with respect to such securities) or (B) shall otherwise issue or sell any such options, rights or securities and (ii) the consideration per share for which Common Stock is deliverable upon exercise of such options or rights or conversion or exchange of such securities (determined by dividing (x) the total amount received or receivable by the Issuer in consideration of the issuance of or subscription for such options, rights or securities, plus the minimum aggregate amount of premiums (if any) payable to the Issuer upon such exercise, conversion or exchange, by (y) the total maximum number of shares of Common Stock necessary to effect the exercise, conversion or exchange of all such options, rights or securities) shall be less than the Current Market Price per share of Common Stock on such record date or sale or issuance date, as the case may be, then the number of shares of Warrant Stock comprising a Stock Unit shall be adjusted to be that number determined by multiplying the number of shares of Warrant Stock comprising a Stock Unit immediately prior to such date by a fraction (not to be less than one) (i) the numerator of which shall be equal to the product of (A) the total maximum number of shares of Common Stock outstanding after giving effect to the assumed exercise or conversion of all such options, rights or securities and (B) the Current Market Price per share of Common Stock determined immediately before such date and (ii) the denominator of which shall be equal to the sum of (A) the product of (1) the number of shares of Common 9 Stock outstanding immediately before such date and (2) the Current Market Price per share of the Common Stock determined immediately before such date and (B) the aggregate consideration per share (determined as set forth in subsection (ii)(x) and (y) above) for which Common Stock is deliverable upon exercise conversion or exchange of such options, rights or securities. Aggregate consideration for purposes of the preceding clause (B) shall be determined as follows: In case any options, rights or convertible or exchangeable securities (or options or rights with respect thereto) shall be issued or sold, or exercisable, convertible or exchangeable for cash, the consideration received therefor shall be deemed to be the amount payable to the Issuer (determined as set forth in subsection (ii)(x) and (y) above) therefor. In case any such options, rights or securities shall be issued or sold, or exercisable, convertible or exchangeable for a consideration other than cash payable to the Issuer, the consideration received therefor (determined as set forth in subsection (ii)(x) and (y) above) shall be deemed to be the fair value of such consideration as determined by the Board, after deduction therefrom of any expenses incurred or any underwriting commissions or concessions or discounts paid or allowed by the Issuer in connection therewith. In case any such options, rights or securities shall be issued or sold, or exercisable, convertible or exchangeable in connection with any merger of another corporation into the Issuer, the amount of consideration therefor shall be deemed to be the fair value as determined by the Board of such portion of the assets of such merged corporation as the Board shall determine to be attributable to such options, rights or securities. The Current Market Price per share of Common Stock shall be determined as set forth in Section 5.05 hereof. (e) SUPERSEDING ADJUSTMENT. If, at any time after any adjustment in the number of shares of Warrant Stock comprising a Stock Unit shall have been made on the basis of the issuance of any options or rights, or convertible or exchangeable securities (or options or rights with respect to such securities) pursuant to subsection (d) hereof: (i) the options or rights shall expire prior to exercise or the right to convert or exchange any such securities shall terminate; or (ii) the consideration per share for which shares of Common Stock are issuable pursuant to the terms of such options or rights or convertible or exchangeable securities shall be increased or decreased, other than under or by reason of provisions designed to protect against dilution; 10 such previous adjustment shall be rescinded and annulled. Thereupon, a recomputation shall be made of the effect of such options or rights or convertible or exchangeable securities with respect to shares of Common Stock on the basis of (A)treating the number of shares of Common Stock, if any, theretofore actually issued or issuable pursuant to the previous exercise, conversion or exchange of such options, rights or securities as having been issued on the date or dates of such exercise, conversion or exchange and for the consideration actually received and receivable therefore, and (B)treating any such options, rights or securities which then remain outstanding as having been granted or issued immediately after the time of such increase or decrease for the consideration per share for which shares of Common Stock are issuable upon exercise, conversion or exchange of such options, rights or securities. To the extent called for by the foregoing provisions of this Section 4(e) on the basis aforesaid, a new adjustment in the number of shares of Warrant Stock comprising a Stock Unit shall be made, determined using the Current Market Price used at the time of the original determination, which new adjustment shall supersede the previous adjustment so rescinded and annulled. If the exercise, conversion or exchange price provided for in any such option, right or security shall decrease at any time under or by reason of provisions designed to protect against dilution, then in the case of the delivery of shares of Common Stock upon the exercise, conversion or exchange of any such option, right or security, the Stock Unit purchasable upon the exercise of a Warrant shall forthwith be adjusted in the manner which would have obtained had the adjustment made upon issuance of such option, right or security been made upon the basis of the issuance of (and the aggregate consideration received for) the shares of Common Stock delivered as aforesaid. (f) OTHER PROVISIONS APPLICABLE TO ADJUSTMENTS UNDER THIS SECTION. The following provisions shall be applicable to the making of adjustments of the number of shares of Warrant Stock comprising a Stock Unit: (i) The sale or other disposition of any issued shares of Common Stock owned or held by or for the account of the Issuer shall be deemed to be an issuance thereof for purposes of this Section. 11 (ii) In computing adjustments under this Section, fractional interests in Common Stock shall be taken into account to the nearest one-thousandth of a share. (iii) If the Issuer shall take a record of the holders of its Common Stock for the purpose of entitling them to receive a dividend or distribution or subscription or purchase rights and shall, thereafter and before the distribution thereof, legally abandon its plan to pay or deliver such dividend, distribution, subscription or purchase rights, then thereafter no adjustment shall be required by reason of the taking of such record and any such adjustment previously made in respect thereof shall be rescinded and annulled. (g) MERGER, CONSOLIDATION OR DISPOSITION OF ASSETS. If the Issuer shall merge or consolidate with another corporation, or shall sell, transfer or otherwise dispose of all or substantially all of its assets to another corporation and pursuant to the terms of such merger, consolidation or disposition of assets, cash, shares of common stock or other securities of the successor or acquiring corporation, or property of any nature is to be received by or distributed to the holders of Common Stock of the Issuer, then each holder of Warrants which are by their terms then exercisable shall, at such holder's election, have the right to receive (whether or not such holder exercises such Warrants) the amount it would have been entitled to receive if such holder had exercised such Warrants immediately prior to the occurrence of such merger, consolidation or disposition of assets, net of the exercise price of such Warrants. In case of any such merger, consolidation or disposition of assets in which the foregoing election is not made, the successor or acquiring corporation (and any affiliate thereof issuing securities) shall expressly assume the due and punctual observance and performance of each and every covenant and condition of this Warrant to be performed and observed by the Issuer and all of the obligations and liabilities hereunder, subject to such modifications as may be deemed appropriate (as determined by resolution of the Board and reasonably acceptable to the holders of a majority in interest of the Warrants) in order to provide for adjustments of Stock Units which shall be as nearly equivalent as practicable to the adjustments provided for in this Section. The foregoing provisions shall similarly apply to successive mergers, consolidations and dispositions of assets. (h) OTHER ACTION AFFECTING COMMON STOCK. If at any time or from time to time the Issuer shall take any action affecting its Common Stock, other than an action described in any of the foregoing subsections of this Section or an action taken in the ordinary course of the Issuer's business and consistent with past practice, then, unless in the reasonable opinion of the Board such action will not have a material adverse effect upon the 12 rights of the holders of the Warrants, the number of shares of Warrant Stock comprising a Stock Unit shall be adjusted in such manner and at such time as the Board shall in good faith determine to be equitable in the circumstances, but no such adjustment shall decrease the number of shares of Warrant Stock comprising a Stock Unit. (i) NOTICE OF ADJUSTMENTS. Whenever the number of shares of Warrant Stock comprising a Stock Unit shall be adjusted pursuant to this Agreement, the Issuer shall forthwith obtain a certificate signed by a firm of independent accountants of recognized national standing selected by the Issuer, setting forth, in reasonable detail, the event requiring the adjustment and the method by which such adjustment was calculated and specifying the number of shares of Warrant Stock comprising a Stock Unit, after giving effect to such adjustment or change. The Issuer shall promptly cause a signed copy of such certificate to be delivered to each holder of Warrants. The Issuer shall keep at its office copies of all such certificates and cause the same to be available for inspection at said office during normal business hours by any holder of Warrants or any prospective purchaser of Warrants designated by the registered holder hereof. (j) NOTICE OF CERTAIN CORPORATE ACTION. If the Issuer shall propose (i) to pay any dividend to the holders of its Common Stock or to make any other distribution to the holders of its Common Stock; (ii) to offer to the holders of its Common Stock rights to subscribe for or to purchase any additional shares of Common Stock (or options or rights with respect thereto); (iii) to effect any reclassification of its Common Stock; (iv) to otherwise issue any Common Stock or other securities; (v) to effect any capital reorganization; (vi) to effect any consolidation, merger or sale, transfer or other disposition of all or substantially all of its assets; or (vii) to effect the liquidation, dissolution or winding up of the Issuer, then, in each such case, the Issuer shall give to each holder of Warrants a notice of such proposed action, which shall specify the date on which a record is to be taken for the purposes of such dividend, distribution or rights offer, or the date on which such reclassification, issuance, reorganization, consolidation, merger, sale, transfer, disposition, liquidation, dissolution or winding up is to take place and the date of participation therein by the holders of Common Stock, if any such date is to be fixed, and shall also set forth such facts with respect thereto as shall be reasonably necessary to indicate the effect of such action on the Common Stock, and the number of shares of Warrant Stock which will comprise a Stock Unit after giving effect to any adjustment which will be required as a result of such action. Such notice shall be so given in the case of any action covered by clause (i) or (ii) above at least 20 days prior to the record date for determining holders of the Common Stock for purposes of 13 such action, and in the case of any other such action, at least 20 days prior to the date of the taking of such proposed action or the date of participation therein by the holders of Common Stock, whichever shall be the earlier. (k)NO ADJUSTMENT NECESSARY. Anything to the contrary herein notwithstanding, no adjustment to the number of shares of Warrant Stock comprising a Stock Unit shall be made as a result of, or in connection with, the issuance of shares of Common Stock, or options or warrants to purchase shares of Common Stock, to management at fair market value (as determined by the Board in its reasonable judgment) in an amount up to 12% of the outstanding shares of Common Stock on the Closing Date, on a fully diluted basis. SECTION 5. MISCELLANEOUS. 5.01 OFFICE OF ISSUER. So long as any of the Warrants remains outstanding, the Issuer shall maintain an office in the continental United States of America where the Warrants may be presented for exercise, transfer, division or combination as in this Warrant provided. Such office shall be at c/o 101 Oakley Street, Evansville, Indiana 47710, unless and until the Issuer shall designate and maintain some other office for such purposes and give notice thereof to all Warrant Holders. 5.02 NOTICES GENERALLY. Any notices and other communications pursuant to the provisions hereof shall be sent in accordance with the provisions of Section 8.6 of the Purchase Agreement. 5.03 GOVERNING LAW. The corporate law of the State of Delaware shall govern all issues concerning the relative rights of the Issuer and its Stockholders. All other issues hereunder shall be governed by and construed in accordance with the procedural and substantive laws of the State of New York without regard for its conflicts of laws rules. The Issuer agrees that it may be served with process in State of New York and any action for breach of this Warrant may be prosecuted against it in the courts of that State. 5.04 LIMITATION OF LIABILITY. No provision hereof, in the absence of affirmative action by the Holder to purchase shares of Class B Common Stock, and no mere enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the Exercise Price or as a Stockholder of the Issuer, whether such liability is asserted by the Issuer, by any creditor of the Issuer or any other Person. 5.05 DETERMINATION OF CURRENT MARKET PRICE PER SHARE OF COMMON STOCK. The Current Market Price per share of Common Stock shall in each instance 14 initially be determined by the Issuer in accordance with the provisions of the definition of Current Market Price in Section 1 hereof. The Issuer shall notify the Holders of such determination. If the holders of a majority in interest of the Warrants disagree with the determination of the Issuer, the Issuer shall appoint an Independent Financial Expert to determine the Current Market Price per share of Common Stock and the determination of the Independent Financial Expert shall govern for purposes of determining the adjustment pursuant to this Section. The Issuer shall notify each holder of Warrants of the final determination of the Current Market Price per share of Common Stock. The Issuer shall pay the fees and expenses of the Independent Financial Expert. 5.06 REGISTRATION RIGHTS. The holders of this Warrant shall be entitled to the benefit of the provisions of Article 6A and Article 6C of the Purchase Agreement with regard to the registration for sale of the Warrant Stock. 15 IN WITNESS WHEREOF, the Issuer has duly executed this Amended and Restated Warrant. Dated: May 9, 2000 BPC HOLDING CORPORATION By: /S/ JAMES M. KRATOCHVIL Name: James M. Kratochvil Title: Executive Vice President, Chief Financial Officer, Treasurer and Secretary Annex A to Warrant FORM OF EXERCISE (To be executed by the registered holder hereof) The undersigned registered owner of this Amended and Restated Warrant ("Warrant") irrevocably exercises this Warrant for the purchase of Stock Units of the Issuer, and herewith makes payment therefor, all at the price and on the terms and conditions specified in this Warrant, and requests that (i) certificates and/or other instruments covering such Stock Units be issued in accordance with the instructions given below and (ii) if such Stock Units shall not include all of the Stock Units to which the Holder is entitled under this Warrant, that a new Warrant of like tenor and date for the unpurchased balance of the Stock Units issuable hereunder be delivered to the undersigned. Dated: __________________ ________________________________ (Signature of Registered Holder) Instructions for issuance and registration of Stock Units: ________________________________ Name of Registered Holder (please print) Social Security or Other Identifying Number: _________________________ Please deliver certificate to the following address: ____________________________________ Street _____________________________________ City, State and Zip Code Annex B to Warrant FORM OF ASSIGNMENT (To be executed by the registered holder hereof) FOR VALUE RECEIVED the undersigned registered owner of this Amended and Restated Warrant hereby sells, assigns and transfers unto the assignee named below all the rights of the undersigned under this Warrant with respect to the number of Stock Units covered thereby set forth herein below unto: Number of NAME OF ASSIGNEE ADDRESS STOCK UNITS Dated:__________________ ________________________________ Signature of Registered Holder ________________________________ Name of Registered Holder (Please Print) Witness: ______________________ EX-4.8 10 FIRST SUPPLEMENTAL INDENTURE The undersigned are executing and delivering this First Supplemental Indenture pursuant to Section 4.13 of the Indenture, dated as of July 6, 1999, as supplemented (the "Indenture"), among Berry Plastics Corporation, BPC Holding Corporation, Berry Iowa Corporation, Berry Tri-Plas Corporation, Berry Sterling Corporation, AeroCon, Inc., PackerWare Corporation, Berry Plastics Design Corporation, Venture Packaging, Inc., Venture Packaging Southeast, Inc., Venture Packaging Midwest, Inc., NIM Holdings Limited, Berry Plastics U.K. Limited (f/k/a Norwich Injection Moulders Limited), Norwich Acquisition Limited, Knight Plastics, Inc., CPI Holding Corporation, Cardinal Packaging, Inc., Berry Plastics Acquisition Corporation II (f/k/a Berry Plastics Acquisition Corporation) and United States Trust Company of New York, as trustee (the "Trustee"). Capitalized terms used herein have the same meanings given in the Indenture unless otherwise indicated. By executing and delivering to the Trustee this First Supplemental Indenture, each of Berry Plastics Acquisition Corporation III, a Delaware corporation, and Poly-Seal Corporation, a Delaware corporation (collectively, the "New Guarantors"), hereby becomes a "Guarantor" under the Indenture and hereby agrees to become a party to, to be bound by, and to comply with the provisions of the Indenture in the same manner as if it were an original signatory to such agreement. Each of the New Guarantors hereby unconditionally guarantees that (i) the principal of and interest on the Notes will be paid in full when due, whether at the maturity or interest payment or mandatory redemption date, by acceleration, call for redemption or otherwise, and interest on the overdue principal of and interest, if any, on the Notes and all other obligations of the Company to the Holders or the Trustee under the Indenture or the Notes will be promptly paid in full or performed, all in accordance with the terms of the Indenture and the Notes and (ii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at maturity, by acceleration or otherwise. The obligations of each of the undersigned to each Holder and to the Trustee pursuant hereto are as expressly set forth in Article 10 of the Indenture which terms are incorporated herein by reference. This is a continuing guarantee and shall remain in full force and effect and shall be binding upon each of the undersigned and its successors and assigns until full and final payment of all of the Company's obligations under the Notes and the Indenture and shall inure to the benefit of the successors and assigns of the Trustee and the Holders and, in the event of any transfer or assignment of rights by any Holder or the Trustee, the rights and privileges herein conferred upon that party shall automatically extend to and be vested in such transferee or assignee, all subject to the terms and conditions hereof. This is a guarantee of payment and not a guarantee of collection. Each of the Company and the Guarantors (hereinafter, collectively, the "Obligors") hereby agrees that all judicial proceedings brought against it arising out of or relating to the Indenture, or any obligations hereunder, may be brought in any State or Federal Court of competent jurisdiction in the State, County and City of New York in the United States of America. By executing and delivering this First Supplemental Indenture, each of the Obligors hereby irrevocably: (i) accepts generally and unconditionally the nonexclusive jurisdiction and venue of such courts, (ii) waives any defense of FORUM NON CONVENIENS; (iii) designates and appoints Joseph S. Levy, or such other persons located in New York State selected by the Obligors from time to time, and agreeing in writing to so serve, as its agent to receive on its behalf service of all process in any such proceedings in any such court, such service being hereby acknowledged by each of the Obligors to be effective and binding service in every respect (with a copy of any such process so served to be mailed by registered mail to each of the Obligors at its address provided that, unless otherwise provided by applicable law, any failure to mail such copy shall not affect the validity of service of such process) and each of the Obligors hereby agrees that service of process sufficient for personal jurisdiction in any action in the State of New York may be made by registered or certified mail, return receipt requested, to it at its address and hereby acknowledges that such service shall be effective and binding in every respect; and nothing herein shall affect the right to serve process in any other manner permitted by law or shall limit the right to bring proceedings against any of the Obligors in the courts of any other jurisdiction; and (iv) agrees that the provisions of this First Supplemental Indenture relating to jurisdiction and venue shall be binding and enforceable to the fullest extent permissible under New York General Obligations Law, Section 5-1402 or otherwise. Any and all payments to be made by any of the undersigned to the Trustee shall be made in U.S. Dollars. If, for the purpose of calculating the amount of any judgment in any court, it is necessary to convert into any other currency (the "Judgment Currency") an amount due in U.S. Dollars under the Indenture, then the conversion shall be made at the discretion of the Trustee, at the rate of exchange prevailing either on the date of default or on the day before the day on which the award or judgment is given (the "Conversion Date"). If there is a change in the rate of exchange prevailing between the Conversion Date and the date of actual payment of the amount due, the undersigned will pay such additional amounts (if any, but in any event, not a lesser amount) as may be necessary to ensure that the amount paid in the Judgment Currency when converted at the rate of exchange prevailing on the date of payment will produce the amount then due in U.S. Dollars. This First Supplemental Indenture may be executed in counterparts. Each signed copy shall be an original, but all of them together represent the same agreement. IN WITNESS WHEREOF, the undersigned have duly executed and delivered this First Supplemental Indenture as of the 9th day of May, 2000.
ATTEST: BERRY PLASTICS ACQUISITION CORPORATION III BY: /S/ JAMES M. KRATOCHVIL By: /S/ MARTIN R. IMBLER James M. Kratochvil Executive Vice President, Chief Financial Officer, Martin R. Imbler Treasurer and Secretary President and Chief Executive Officer POLY-SEAL CORPORATION By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary BERRY PLASTICS CORPORATION By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary BPC HOLDING CORPORATION By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary BERRY IOWA CORPORATION By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary BERRY TRI-PLAS CORPORATION By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary BERRY STERLING CORPORATION By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary AEROCON, INC. By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary PACKERWARE CORPORATION By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary BERRY PLASTICS DESIGN CORPORATION By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary VENTURE PACKAGING, INC. By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary VENTURE PACKAGING SOUTHEAST, INC. By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary VENTURE PACKAGING MIDWEST, INC. By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary NIM HOLDINGS LIMITED By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Director BERRY PLASTICS U.K. LIMITED By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Director NORWICH ACQUISITION LIMITED By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Director KNIGHT PLASTICS, INC. By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary CPI HOLDING CORPORATION By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary CARDINAL PACKAGING, INC. By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary BERRY PLASTICS ACQUISITION CORPORATION II (F/K/A BERRY PLASTICS ACQUISITION CORPORATION) By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary
UNITED STATES TRUST COMPANY OF NEW YORK, AS TRUSTEE By: /S/ CYNTHIA CHANEY Name: Cynthia Chaney Title: Assistant Vice President
EX-4.9 11 THIRD SUPPLEMENTAL INDENTURE The undersigned are executing and delivering this Third Supplemental Indenture pursuant to Section 4.13 of the Indenture, dated as of August 24, 1998, as supplemented (the "Indenture"), among Berry Plastics Corporation, BPC Holding Corporation, Berry Iowa Corporation, Berry Tri-Plas Corporation, Berry Sterling Corporation, AeroCon, Inc., PackerWare Corporation, Berry Plastics Design Corporation, Venture Packaging, Inc., Venture Packaging Southeast, Inc., Venture Packaging Midwest, Inc., NIM Holdings Limited, Berry Plastics U.K. Limited (f/k/a Norwich Injection Moulders Limited), Norwich Acquisition Limited, Knight Plastics, Inc., CPI Holding Corporation, Cardinal Packaging, Inc., Berry Plastics Acquisition Corporation II (f/k/a Berry Plastics Acquisition Corporation) and United States Trust Company of New York, as trustee (the "Trustee"). Capitalized terms used herein have the same meanings given in the Indenture unless otherwise indicated. By executing and delivering to the Trustee this Third Supplemental Indenture, each of Berry Plastics Acquisition Corporation III, a Delaware corporation, and Poly-Seal Corporation, a Delaware corporation (collectively, the "New Guarantors"), hereby becomes a "Guarantor" under the Indenture and hereby agrees to become a party to, to be bound by, and to comply with the provisions of the Indenture in the same manner as if it were an original signatory to such agreement. Each of the New Guarantors hereby unconditionally guarantees that (i) the principal of and interest on the Notes will be paid in full when due, whether at the maturity or interest payment or mandatory redemption date, by acceleration, call for redemption or otherwise, and interest on the overdue principal of and interest, if any, on the Notes and all other obligations of the Company to the Holders or the Trustee under the Indenture or the Notes will be promptly paid in full or performed, all in accordance with the terms of the Indenture and the Notes and (ii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at maturity, by acceleration or otherwise. The obligations of each of the undersigned to each Holder and to the Trustee pursuant hereto are as expressly set forth in Article 10 of the Indenture which terms are incorporated herein by reference. This is a continuing guarantee and shall remain in full force and effect and shall be binding upon each of the undersigned and its successors and assigns until full and final payment of all of the Company's obligations under the Notes and the Indenture and shall inure to the benefit of the successors and assigns of the Trustee and the Holders and, in the event of any transfer or assignment of rights by any Holder or the Trustee, the rights and privileges herein conferred upon that party shall automatically extend to and be vested in such transferee or assignee, all subject to the terms and conditions hereof. This is a guarantee of payment and not a guarantee of collection. Each of the Company and the Guarantors (hereinafter, collectively, the "Obligors") hereby agrees that all judicial proceedings brought against it arising out of or relating to the Indenture, or any obligations hereunder, may be brought in any State or Federal Court of competent jurisdiction in the State, County and City of New York in the United States of America. By executing and delivering this Third Supplemental Indenture, each of the Obligors hereby irrevocably: (i) accepts generally and unconditionally the nonexclusive jurisdiction and venue of such courts, (ii) waives any defense of FORUM NON CONVENIENS; (iii) designates and appoints Joseph S. Levy, or such other persons located in New York State selected by the Obligors from time to time, and agreeing in writing to so serve, as its agent to receive on its behalf service of all process in any such proceedings in any such court, such service being hereby acknowledged by each of the Obligors to be effective and binding service in every respect (with a copy of any such process so served to be mailed by registered mail to each of the Obligors at its address provided that, unless otherwise provided by applicable law, any failure to mail such copy shall not affect the validity of service of such process) and each of the Obligors hereby agrees that service of process sufficient for personal jurisdiction in any action in the State of New York may be made by registered or certified mail, return receipt requested, to it at its address and hereby acknowledges that such service shall be effective and binding in every respect; and nothing herein shall affect the right to serve process in any other manner permitted by law or shall limit the right to bring proceedings against any of the Obligors in the courts of any other jurisdiction; and (iv) agrees that the provisions of this Third Supplemental Indenture relating to jurisdiction and venue shall be binding and enforceable to the fullest extent permissible under New York General Obligations Law, Section 5-1402 or otherwise. Any and all payments to be made by any of the undersigned to the Trustee shall be made in U.S. Dollars. If, for the purpose of calculating the amount of any judgment in any court, it is necessary to convert into any other currency (the "Judgment Currency") an amount due in U.S. Dollars under the Indenture, then the conversion shall be made at the discretion of the Trustee, at the rate of exchange prevailing either on the date of default or on the day before the day on which the award or judgment is given (the "Conversion Date"). If there is a change in the rate of exchange prevailing between the Conversion Date and the date of actual payment of the amount due, the undersigned will pay such additional amounts (if any, but in any event, not a lesser amount) as may be necessary to ensure that the amount paid in the Judgment Currency when converted at the rate of exchange prevailing on the date of payment will produce the amount then due in U.S. Dollars. This Third Supplemental Indenture may be executed in counterparts. Each signed copy shall be an original, but all of them together represent the same agreement. IN WITNESS WHEREOF, the undersigned have duly executed and delivered this Third Supplemental Indenture as of the 9th day of May, 2000.
ATTEST: BERRY PLASTICS ACQUISITION CORPORATION III BY: /S/ JAMES M. KRATOCHVIL By: /S/ MARTIN R. IMBLER James M. Kratochvil Executive Vice President, Chief Financial Officer, Martin R. Imbler Treasurer and Secretary President and Chief Executive Officer POLY-SEAL CORPORATION By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary BERRY PLASTICS CORPORATION By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary BPC HOLDING CORPORATION By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary BERRY IOWA CORPORATION By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary BERRY TRI-PLAS CORPORATION By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary BERRY STERLING CORPORATION By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary AEROCON, INC. By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary PACKERWARE CORPORATION By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary BERRY PLASTICS DESIGN CORPORATION By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary VENTURE PACKAGING, INC. By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary VENTURE PACKAGING SOUTHEAST, INC. By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary VENTURE PACKAGING MIDWEST, INC. By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary NIM HOLDINGS LIMITED By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Director BERRY PLASTICS U.K. LIMITED By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Director NORWICH ACQUISITION LIMITED By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Director KNIGHT PLASTICS, INC. By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary CPI HOLDING CORPORATION By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary CARDINAL PACKAGING, INC. By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary BERRY PLASTICS ACQUISITION CORPORATION II (F/K/A BERRY PLASTICS ACQUISITION CORPORATION) By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary
UNITED STATES TRUST COMPANY OF NEW YORK, AS TRUSTEE By: /S/ CYNTHIA CHANEY Name: Cynthia Chaney Title: Assistant Vice President
EX-4.10 12 NINTH SUPPLEMENTAL INDENTURE The undersigned are executing and delivering this Ninth Supplemental Indenture pursuant to Section 4.13 of the Indenture, dated as of April 21, 1994, as supplemented (the "Indenture"), among Berry Plastics Corporation, BPC Holding Corporation, Berry Iowa Corporation, Berry Tri-Plas Corporation, Berry Sterling Corporation, AeroCon, Inc., PackerWare Corporation, Berry Plastics Design Corporation, Venture Packaging, Inc., Venture Packaging Southeast, Inc., Venture Packaging Midwest, Inc., NIM Holdings Limited, Berry Plastics U.K. Limited (f/k/a Norwich Injection Moulders Limited), Norwich Acquisition Limited, Knight Plastics, Inc., CPI Holding Corporation, Cardinal Packaging, Inc., Berry Plastics Acquisition Corporation II (f/k/a Berry Plastics Acquisition Corporation) and United States Trust Company of New York, as trustee (the "Trustee"). Capitalized terms used herein have the same meanings given in the Indenture unless otherwise indicated. By executing and delivering to the Trustee this Ninth Supplemental Indenture, each of Berry Plastics Acquisition Corporation III, a Delaware corporation, and Poly-Seal Corporation, a Delaware corporation (collectively, the "New Guarantors"), hereby becomes a "Guarantor" under the Indenture and hereby agrees to become a party to, to be bound by, and to comply with the provisions of the Indenture in the same manner as if it were an original signatory to such agreement. Each of the New Guarantors hereby unconditionally guarantees that (i) the principal of and interest on the Notes will be paid in full when due, whether at the maturity or interest payment or mandatory redemption date, by acceleration, call for redemption or otherwise, and interest on the overdue principal of and interest, if any, on the Notes and all other obligations of the Company to the Holders or the Trustee under the Indenture or the Notes will be promptly paid in full or performed, all in accordance with the terms of the Indenture and the Notes and (ii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at maturity, by acceleration or otherwise. The obligations of each of the undersigned to each Holder and to the Trustee pursuant hereto are as expressly set forth in Article 10 of the Indenture which terms are incorporated herein by reference. This is a continuing guarantee and shall remain in full force and effect and shall be binding upon each of the undersigned and its successors and assigns until full and final payment of all of the Company's obligations under the Notes and the Indenture and shall inure to the benefit of the successors and assigns of the Trustee and the Holders and, in the event of any transfer or assignment of rights by any Holder or the Trustee, the rights and privileges herein conferred upon that party shall automatically extend to and be vested in such transferee or assignee, all subject to the terms and conditions hereof. This is a guarantee of payment and not a guarantee of collection. Each of the Company and the Guarantors (hereinafter, collectively, the "Obligors") hereby agrees that all judicial proceedings brought against it arising out of or relating to the Indenture, or any obligations hereunder, may be brought in any State or Federal Court of competent jurisdiction in the State, County and City of New York in the United States of America. By executing and delivering this Ninth Supplemental Indenture, each of the Obligors hereby irrevocably: (i) accepts generally and unconditionally the nonexclusive jurisdiction and venue of such courts, (ii) waives any defense of FORUM NON CONVENIENS; (iii) designates and appoints Joseph S. Levy, or such other persons located in New York State selected by the Obligors from time to time, and agreeing in writing to so serve, as its agent to receive on its behalf service of all process in any such proceedings in any such court, such service being hereby acknowledged by each of the Obligors to be effective and binding service in every respect (with a copy of any such process so served to be mailed by registered mail to each of the Obligors at its address provided that, unless otherwise provided by applicable law, any failure to mail such copy shall not affect the validity of service of such process) and each of the Obligors hereby agrees that service of process sufficient for personal jurisdiction in any action in the State of New York may be made by registered or certified mail, return receipt requested, to it at its address and hereby acknowledges that such service shall be effective and binding in every respect; and nothing herein shall affect the right to serve process in any other manner permitted by law or shall limit the right to bring proceedings against any of the Obligors in the courts of any other jurisdiction; and (iv) agrees that the provisions of this Ninth Supplemental Indenture relating to jurisdiction and venue shall be binding and enforceable to the fullest extent permissible under New York General Obligations Law, Section 5-1402 or otherwise. Any and all payments to be made by any of the undersigned to the Trustee shall be made in U.S. Dollars. If, for the purpose of calculating the amount of any judgment in any court, it is necessary to convert into any other currency (the "Judgment Currency") an amount due in U.S. Dollars under the Indenture, then the conversion shall be made at the discretion of the Trustee, at the rate of exchange prevailing either on the date of default or on the day before the day on which the award or judgment is given (the "Conversion Date"). If there is a change in the rate of exchange prevailing between the Conversion Date and the date of actual payment of the amount due, the undersigned will pay such additional amounts (if any, but in any event, not a lesser amount) as may be necessary to ensure that the amount paid in the Judgment Currency when converted at the rate of exchange prevailing on the date of payment will produce the amount then due in U.S. Dollars. This Ninth Supplemental Indenture may be executed in counterparts. Each signed copy shall be an original, but all of them together represent the same agreement. IN WITNESS WHEREOF, the undersigned have duly executed and delivered this Ninth Supplemental Indenture as of the 9th day of May, 2000. ATTEST: BERRY PLASTICS ACQUISITION CORPORATION III BY: /S/ JAMES M. KRATOCHVIL By: /S/ MARTIN R. IMBLER James M. Kratochvil Martin R. Imbler Executive Vice President, President and Chief Executive Chief Financial Officer, Officer Treasurer and Secretary POLY-SEAL CORPORATION By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary BERRY PLASTICS CORPORATION By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary BPC HOLDING CORPORATION By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary BERRY IOWA CORPORATION By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary BERRY TRI-PLAS CORPORATION By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary BERRY STERLING CORPORATION By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary AEROCON, INC. By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary PACKERWARE CORPORATION By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary BERRY PLASTICS DESIGN CORPORATION By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary VENTURE PACKAGING, INC. By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary VENTURE PACKAGING SOUTHEAST, INC. By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary VENTURE PACKAGING MIDWEST, INC. By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary NIM HOLDINGS LIMITED By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Director BERRY PLASTICS U.K. LIMITED By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Director NORWICH ACQUISITION LIMITED By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Director KNIGHT PLASTICS, INC. By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary CPI HOLDING CORPORATION By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary CARDINAL PACKAGING, INC. By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary BERRY PLASTICS ACQUISITION CORPORATION II (F/K/A BERRY PLASTICS ACQUISITION CORPORATION) By: /S/ JAMES M. KRATOCHVIL James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary UNITED STATES TRUST COMPANY OF NEW YORK, AS TRUSTEE By: /S/ CYNTHIA CHANEY Name: Cynthia Chaney Title: Assistant Vice President EX-99.1 13 ESCROW AGREEMENT dated as of May 9, 2000, among BERRY PLASTICS CORPORATION, a Delaware corporation (the "PARENT"), POLY-SEAL CORPORATION, a Delaware corporation (the "COMPANY"), MICHAEL C. LARNED AND MICHAEL D. DE MILT (the "SHAREHOLDER PARTY REPRESENTATIVES"), the trusts and individuals identified in the signature pages hereto as shareholder parties (the "SHAREHOLDER PARTIES") and OLD NATIONAL TRUST COMPANY (the "ESCROW AGENT"). This Escrow Agreement is being executed in accordance with Section 1.10 of the Agreement and Plan of Merger dated as of May 5, 2000 (the "MERGER AGREEMENT"), among the Parent, the Company, Berry Plastics Acquisition Corporation and the Shareholder Parties. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed thereto in the Merger Agreement. In consideration of the mutual covenants contained herein and in the Merger Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: Section 1. APPOINTMENT OF ESCROW AGENT. The Escrow Agent is hereby appointed to act as escrow agent hereunder, and the Escrow Agent agrees to act as such. Section 2. ESCROW FUND AND ESCROW ACCOUNT. (a). On the date hereof, the Parent is delivering to the Escrow Agent by wire transfer of immediately available funds the following sums: $1,200,000 (the "ESCROW HOLDBACK AMOUNT"), $50,421,017.70 (the "SHAREHOLDER PAYMENTS ESCROW AMOUNT"), $544,523.43 (the "ESTIMATED ADJUSTMENT AMOUNT"), $200,000 (the "Escrow Expense Amount"), and $0.00 (the "Escrow Tax Amount"), and the Escrow Agent is accepting such sums for deposit in escrow pursuant to the provisions of this Escrow Agreement. The Escrow Holdback Amount (and additions thereto pursuant to Section 2(c)), the Shareholder Payments Escrow Amount, the Estimated Adjustment Amount, the Escrow Expense Amount and the Escrow Tax Amount (and additions thereto pursuant to Section 2(d)) and interest earned thereon or proceeds derived therefrom, if any, are referred to herein as the "ESCROW HOLDBACK FUND," the "SHAREHOLDER PAYMENTS ESCROW FUND", the "ESTIMATED ADJUSTMENT FUND", the "ESCROW EXPENSE FUND" and the "ESCROW TAX FUND,"respectively, and are collectively referred to herein as the "ESCROW FUNDS". (b). The Escrow Agent shall establish segregated accounts (the "ESCROW HOLDBACK ACCOUNT," the "SHAREHOLDER PAYMENTS ESCROW ACCOUNT," the "ESTIMATED ADJUSTMENT AMOUNT ACCOUNT," the "ESCROW EXPENSE ACCOUNT" and, upon receipt of any funds pursuant to Section 2(d) for deposit into the Escrow Tax Fund, the "ESCROW TAX ACCOUNT"), at its office located at its address set forth in Section 10 hereof in which to hold the Escrow Funds and any securities in which the Escrow Funds may, from time to time, be invested. The Escrow Agent shall keep appropriate records to reflect the current value from time to time of each Escrow Fund, including appropriate adjustments for disbursements and income earned or losses incurred in respect thereof. (c). Pursuant to Section 1.8(f) of the Merger Agreement, the Shareholders may, from time to time, deliver additional funds to the Escrow Agent as additions to the Escrow Holdback Amount and for deposit into the Escrow Holdback Account pursuant to the provisions of this Escrow Agreement. The Escrow Agent shall accept such funds pursuant to the provisions of this Escrow Agreement. (d). Pursuant to Section 4.11 of the Merger Agreement, the Company may, from time to time, deliver additional funds to the Escrow Agent for deposit into the Escrow Tax Account. The Escrow Agent shall accept such funds pursuant to the provisions of this Escrow Agreement. Section 3. INVESTMENTS. (a). The Escrow Agent will invest the Escrow Funds in such Permitted Investments (as hereinafter defined) as directed by the Shareholder Party Representatives from time to time pursuant to written instructions signed by the Shareholder Party Representatives and referencing the desired Permitted Investments and the maturity date thereof. As used in this Escrow Agreement, "PERMITTED INVESTMENTS" means any of the following: i) direct obligations of, or obligations fully guaranteed by, the United States of America or any agency thereof; ii) bonds, debentures, notes or other evidence of indebtedness issued by any of the following agencies: Federal Farm Credit System; Federal Home Loan Bank System; Export-Import Bank of the United States; Federal National Mortgage Association; Government National Mortgage Association; Federal Financing Bank; or any agency or instrumentality of the Federal government which shall be established for the purpose of acquiring the obligations of any of the foregoing or otherwise providing financing therefor; iii) direct and general obligations of, or obligations unconditionally guaranteed by, any state of the United States or political subdivision of such state, but only if (A) such obligations or guarantees are entitled to the full faith and credit of such state or political subdivision of such state, respectively, and such obligations provide that the state or political subdivision has the obligation to repay, in full and on a timely basis, such obligations, and (B) at the time of their purchase under this Escrow Agreement, such obligations are rated in any of the two highest rating categories by a nationally recognized bond rating service; iv) certificates of deposit, whether negotiable or non- negotiable, of any bank, trust company or national banking association, provided that such certificates of deposit shall be (A) issued by a bank, trust company or national banking association having capital stock and surplus of more than $500,000,000, (B) fully insured by the Federal Deposit Insurance Corporation or (C) fully and continuously secured by direct obligations of, or obligations unconditionally guaranteed by, the United States of 2 America, which (1) shall have a market value (exclusive of accrued interest) at all times at least equal to the principal amount of such certificates of deposit, (2) shall be lodged with the Escrow Agent (or any correspondent bank or trust company designated by the Escrow Agent), as custodian, by the bank, trust company or national banking association issuing such certificate of deposit, and (3) the bank, trust company or national banking association issuing each certificate of deposit required to be so secured shall furnish the Escrow Agent with an undertaking satisfactory to it that the aggregate market value of such obligations securing each such certificate of deposit will at all times be an amount equal to the principal amount of each such certificate of deposit (and the Escrow Agent shall be entitled to rely on each such undertaking); v) a readily redeemable interest bearing "money market account" sponsored by a bank described in clause (iv)(A) above and having on the date of such investment total assets of at least $1,000,000,000; any repurchase agreement with any bank or trust company organized under the laws of any state of the United States or any national banking association or any government securities dealer which is listed as reporting to the market statistics division of the Federal Reserve Bank of New York secured by any one or more of the securities described in clauses (i) or (ii) above; vi) readily marketable commercial paper of corporations doing business in and incorporated under the laws of the United States of America or any state thereof or of any corporation that is the holding company for a bank described in clause (iv)(A) above given on the date of such investment a credit rating of at least P-1 by Moody's Investors Service, Inc. or A-1 by Standard & Poor's Corporation, in each case due within 90 days after the date of the making of the investment; and vii) a readily redeemable "money market mutual fund" sponsored by a bank described in clause (iv) (A) above, or a registered broker or dealer described in clause (vi) above, that has and maintains an investment policy limiting its investments primarily to instruments of the types described in clauses (i) through (vii) above and having on the date of such investment total assets of at least $1,000,000,000. (b). Maturities or unexpired terms of maturities of instruments in which the Escrow Fund is invested shall not exceed 90 days. The Escrow Agent is authorized to sell such investments as may be required to make any payment under this Escrow Agreement, and the Escrow Agent shall not be liable for any loss due to early redemption. In the event that no such written instructions are given by the Parent and the Shareholder Party Representatives as to any uninvested portion of the Escrow Funds, such portion shall be invested by the Escrow Agent in commercial paper for a 30-day period given on the date of such investment a credit rating of at least P-1 by Moody's Investors Service, Inc. or A-1 by the Standard & Poor's Corporation; PROVIDED, HOWEVER, that if such period is not available, such portion shall be invested for the closest period of shorter duration. Section 4. RIGHTS TO ESCROW FUNDS. (a). The Escrow Funds shall be for the exclusive benefit of the Buyer Group and/or the Shareholders, as the case may be, and their respective successors, assigns, heirs, 3 administrators and estates, and no other person or entity shall have any right, title or interest therein. Any claim of any person to the Escrow Funds, or any part thereof, shall be subject and subordinate to the prior right thereto of the Buyer Group and/or the Shareholders, as the case may be. (b). It is the intent of the Buyer Group and the Shareholders that each of their respective interests in the Escrow Funds is merely a contingent right to payment from the Escrow Funds, and that neither a voluntary or involuntary case under any applicable bankruptcy, insolvency or similar law nor the appointment of a receiver, trustee, custodian or similar official in respect of any member of the Buyer Group or any Shareholder (any of which is referred to herein as a "BANKRUPTCY EVENT") shall increase its respective interest in the Escrow Funds or affect, modify, convert or otherwise change the contingent nature of its respective right to payment from the Escrow Funds in accordance with the terms of this Escrow Agreement. Accordingly, in order to assure the foregoing result even if it is determined by a court of competent jurisdiction (whether or not in connection with a Bankruptcy Event) that the Parent or any Shareholder has an interest in any of the Escrow Funds that is greater than a contingent right of payment from the Escrow Fund payable in accordance with the provisions hereof, the parties agree as follows: (i) The Parent and the Company hereby grant (effective as of the date hereof) to the Shareholders a first priority security interest in, and hereby pledges and assigns to the Shareholders, all of its right, title and interest in each Escrow Fund to secure the Shareholders' rights and the obligations of the Parent and the Company hereunder. The Escrow Agent hereby agrees to act as bailee and possessory agent on behalf of the Shareholders in respect of the Shareholders' security interest in the rights of the Parent and the Company to the Escrow Funds. The Escrow Agent shall, upon receipt of indemnification satisfactory to it from the Shareholders for its fees and expenses incurred in connection with taking such actions, take all actions as may be reasonably requested in writing of it by the Shareholders to further perfect or maintain the security interest created by the Parent and the Company hereunder in the Escrow Funds. Such security interest shall automatically be released with respect to any funds properly distributed from the Escrow Funds pursuant to the terms of this Escrow Agreement; and (ii) Each Shareholder hereby grants (effective as of the date hereof) to the Parent and the Company a first priority security interest in, and hereby pledges and assigns to the Parent and the Company, all of his respective right, title and interest in each Escrow Fund to secure the rights and such Shareholder's obligations hereunder. The Escrow Agent hereby agrees to act as bailee and possessory agent on behalf of the Parent and the Company in respect of the security interest of the Parent and the Company in the Shareholders' rights to the Escrow Funds. The Escrow Agent shall, upon receipt of indemnification satisfactory to it from the Parent and the Company for its fees and expenses incurred in connection with taking such actions, take all actions as may be reasonably requested in writing of it by the Parent and the Company to further perfect or maintain the security interest created by each Shareholder hereunder in the Escrow Funds. Such security interest shall automatically be released with respect to any funds properly distributed from the Escrow Fund pursuant to the terms of this Escrow Agreement. 4 (c). The parties hereto agree and acknowledge that the establishment and maintenance of the Escrow Funds hereunder is intended to constitute possession of the Escrow Funds for the purposes of perfecting the security interests therein created by this Section 4. Section 5. SURRENDER OF CERTIFICATES; PAYMENTS FOR SURRENDERED CERTIFICATES FROM THE SHAREHOLDER PAYMENTS ESCROW ACCOUNT (a). The Escrow Agent agrees to accept certificates representing shares of Outstanding Company Common Stock (the "SHARES") surrendered to the Escrow Agent and to make payments for such surrendered Shares in accordance with the provisions of this Section 5. (b). On or promptly after the date hereof, it is intended that the Company will mail to each Shareholder who is not a Shareholder Party a notice of merger and appraisal rights which will include, among other things, a Letter of Transmittal (in the form attached hereto as EXHIBIT A, instructing such Shareholders to complete and return the Letter of Transmittal to the Escrow Agent. EXHIBIT B hereto sets forth a list of all Shareholders (including the Shareholder Parties), showing the number of Shares held by each such Shareholder, the Applicable Percentage of each such Shareholder and the certificates (giving certificate numbers) representing such Shares. (c). The Escrow Agent agrees to examine the Letters of Transmittal, certificates representing Shares and other documents delivered or mailed to the Escrow Agent by or for Shareholders, in order to ascertain, to the extent reasonably determinable by the Escrow Agent, whether: (i) The Letters of Transmittal appear to be duly executed and properly completed in accordance with the instructions set forth therein; (ii) the certificates for the Shares appear to be properly surrendered; (iii) the other documents, if any, used in connection with the surrender of the Shares appear to be duly executed and properly completed and in the proper form; and (iv) the certificates for Shares are free of restrictions on transfer or stop orders. (d). In the event that the Escrow Agent ascertains that any Letter of Transmittal or other document has been improperly completed or executed, that any of the certificates for Shares are not in proper form or some other irregularity exits, the Escrow Agent shall attempt to resolve promptly the irregularity and may use its best efforts to contact the appropriate Shareholder by whatever means of communication it deems most expedient in order to correct the irregularity. If the Escrow Agent is unable to correct such irregularity, it shall contact the Company for further instructions. (e). As soon as practicable after surrender to the Escrow Agent of all certificates for Shares registered to a particular Shareholder of record (and only after surrender of all such certificates) and the return of a properly completed and signed Letter of Transmittal relating thereto, the Escrow Agent shall pay from the Shareholder Payments Escrow Account, to such 5 Shareholder, in the manner provided in Section 10, such Shareholder's Applicable Percentage of the Shareholder Payments Escrow Amount, together with such Shareholder(s)Applicable Percentage of the interest accrued thereon and proceeds derived in the Shareholder Payments Escrow Account on such amount from the Closing Date to the date of such payment. (f). The Escrow Agent shall arrange to comply with all requirements under the Tax laws of the United States, including those relating to missing Tax Identification Numbers, and shall file any appropriate reports with the Internal Revenue 6Service (including without limitation, Forms 1099 and 1099B). The Escrow Agent may be required to deduct 31% from cash paid to holders who have not supplied their correct Taxpayer Identification Number or required certification. Such funds will be turned over to the IRS by the Escrow Agent. (g). Letters of Transmittal and telegrams, facsimile transmissions and other materials submitted to the Escrow Agent shall be preserved by the Escrow Agent until delivered to or otherwise disposed of in accordance with the instructions of the Company at or prior to the termination hereof. (h). The Escrow Agent will keep and maintain complete and accurate ledgers showing all shares surrendered and payments made therefor, and will make such ledgers available to the Parent, the Company and the Shareholder Party Representatives upon request. (i). All certificates for Shares surrendered to the Escrow Agent shall be retained by the Escrow Agent and following payment therefor shall be forwarded to the Company, or elsewhere as directed by the Company. (j). Upon receipt of New York State Stock Transfer Tax stamps from the Company, the Escrow Agent shall affix such stamps to certificates for shares surrendered in accordance with the instructions of the Company. Section 6. CLAIMS; PAYMENTS FROM THE ESCROW HOLDBACK ACCOUNT AND THE ESTIMATED ADJUSTMENT AMOUNT ACCOUNT. (a) (i)In the event any member of the Buyer Group asserts a claim for indemnification or satisfaction of Adjustment Amounts under the Merger Agreement, the Parent shall execute and deliver to the Escrow Agent and the Shareholder Party Representatives a written notice to such effect (a "PURCHASER CLAIM NOTICE"; and the claim being asserted in a Purchaser Claim Notice being hereinafter referred to as a "PURCHASER CLAIM") setting forth the nature and details of such Purchaser Claim and the amount thereof (or if not ascertainable, a reasonable maximum amount thereof), describing in reasonable detail the basis of the Shareholder Parties' liability therefor under the Merger Agreement, and instructing the Escrow Agent to deliver, not sooner than 15 days from receipt of the Purchaser Claim Notice, the portion of the Escrow Holdback Fund specified in the Purchaser Claim Notice and in the aggregate equal to the amount of the Purchaser Claim (or, if the amount of the Purchaser Claim to be satisfied from the Escrow Holdback Fund shall be greater than the balance of such Fund, such remaining balance or balances, as the case may be) to the Parent or such other member of the Buyer Group as the Parent may direct in the Purchaser Claim Notice. 6 (ii) The Shareholder Party Representatives may object to any Purchaser Claim Notice by delivering to the Parent and the Escrow Agent, within 14 days after receipt of the Purchaser Claim Notice, a written notice (a "SHAREHOLDER PARTY OBJECTION NOTICE") stating that all or a portion of the amount specified in such Purchaser Claim Notice should not be released to the Parent or such other member of the Buyer Group. The Parent shall deliver to the Shareholder Party Representatives a copy of each Purchaser Claim Notice on or prior to the date of the delivery thereof to the Escrow Agent, and the Escrow Agent shall also deliver a copy thereof to the Shareholder Party Representatives promptly after receipt (provided that the failure of the Escrow Agent to make such delivery to the Shareholder Party Representatives shall not affect the obligation of the Escrow Agent to release funds pursuant to Section 7(a)(ii) below). The Shareholder Party Representatives shall deliver to the Parent a copy of each Shareholder Party Objection Notice on or prior to the date of the delivery thereof to the Escrow Agent, and the Escrow Agent shall also deliver a copy thereof to the Parent promptly after receipt from the Shareholder Party Representatives. (b) (i)In the event that either of the Shareholder Party Representatives asserts a claim for Shareholder Adjustment Amounts under the Merger Agreement, such person shall execute and deliver to the Escrow Agent and the Parent a written notice to such effect (a "SHAREHOLDER PARTY REPRESENTATIVE CLAIM NOTICE"; and the claim being asserted in a Shareholder Party Representative Claim Notice being hereinafter referred to as a "SHAREHOLDER PARTY REPRESENTATIVE CLAIM") setting forth in reasonable detail the nature and details of such Shareholder Party Representative Claim and the amount thereof (or if not ascertainable, a reasonable maximum amount thereof) and instructing the Escrow Agent to deliver, not sooner than 15 days from receipt of the Shareholder Party Representative Claim Notice, that portion of the Estimated Adjustment Fund as shall equal the amount of the Shareholder Party Representative Claim (or, if the amount of the Claim shall be greater than the Estimated Adjustment Fund the balance of the Estimated Adjustment Fund) to the Shareholders, in accordance with their respective Applicable Percentages in the manner provided in Section 10; PROVIDED, HOWEVER, that no amount shall be so released to any Shareholder that has not surrendered all certificates for Shares registered in the name of such Shareholder as contemplated in Section 5 (each a "NONRESPONDING SHAREHOLDER") unless and until such Shareholder has effected such surrender. (ii) The Parent may object to any Shareholder Party Representative Claim Notice by delivering to the Shareholder Party Representatives and the Escrow Agent, within 14 days after receipt of the Shareholder Party Representative Claim Notice, a written notice (a "PARENT OBJECTION NOTICE") stating that all or a portion of the amount specified in such Shareholder Party Representative Claim Notice should not be released to the Shareholder Party Representatives. The Shareholder Party Representatives shall deliver to the Parent a copy of each Shareholder Party Representative Claim Notice on or prior to the date of the delivery thereof to the Escrow Agent, and the Escrow Agent shall also deliver a copy thereof to the Parent promptly after receipt (provided that the failure of the Escrow Agent to make such delivery to the Parent shall not affect the obligation of the Escrow Agent to release funds pursuant to Section 7(a)(iii) below). The Parent shall deliver to the Shareholder Party Representatives a copy of each Parent Objection Notice on or prior to the date of the delivery thereof to the Escrow Agent, and the Escrow Agent shall also deliver a copy thereof to the Shareholder Party Representatives promptly after receipt from the Parent. 7 Section 7. PAYMENTS FROM ESCROW EXPENSE FUND. From time to time until the date that is sixteen months following the date hereof, the Shareholder Party Representatives may deliver to the Escrow Agent requests for funds from the Escrow Expense Account to pay, or reimburse the Shareholder Party Representatives for, (i) expenses, fees, costs and other amounts paid or incurred by the Shareholder Party Representatives in connection with the performance of any of their duties and responsibilities under, or the taking of any action which they are required or permitted to take pursuant to, the Merger Agreement or this Escrow Agreement (including, but without limitation, the retention of independent accountants in connection with the finalization for the Closing Date Balance Sheet and the Statement) and (ii) fees to the Shareholder Party Representatives not to exceed $1,000 per month per Shareholder Party Representative. The Escrow Agent shall be fully entitled to rely on any such request and shall not be required to verify or otherwise determine the accuracy thereof or the reasonableness of any amount requested therein. Promptly (and, in any event within three (3) Business Days) after receipt of any such request, the Escrow Agent shall release to the Shareholder Party Representatives, by wire transfer of immediately available funds to such account as the Shareholder Party Representatives designate in such request, the amount so requested. Section 8. PAYMENTS FROM ESCROW TAX FUND. Promptly (and, in any event within three (3) Business Days) after receipt of any funds for deposit in the Escrow Tax Account as contemplated in Section 2(d), the Escrow Agent shall release to the Shareholders, in accordance with their respective Applicable Percentages in the manner provided in Section 10, the entire balance of the Escrow Tax Fund; PROVIDED, HOWEVER, that no amount shall be so released to any Nonresponding Shareholder unless and until such Shareholder has surrendered all certificates for Shares registered in the name of such Shareholder as contemplated in Section 5. Section 9. RELEASE OF ESCROW FUNDS. (a) The Escrow Agent shall release the Escrow Funds as follows: (i) Promptly upon receipt of joint written instructions, substantially in the form of EXHIBIT C hereto, signed by the Parent (or such other member of the Buyer Group) and the Shareholder Party Representatives ("JOINT INSTRUCTIONS"), in accordance with, from such Escrow Fund and to the persons set forth in such Joint Instructions. (ii) On the 15th day following the receipt of any Purchaser Claim Notice which is received by the Escrow Agent and which is not the subject of a Shareholder Party Objection Notice, the Escrow Agent shall release to the Parent (or such other member of the Buyer Group) such portion of the Escrow Holdback Fund as is claimed in such Purchaser Claim Notice. (iii) On the 15th day following the receipt of any Shareholder Party Representative Claim Notice which is received by the Escrow Agent and which is not the subject of a Parent Objection Notice, the Escrow Agent shall release to the Shareholders, in accordance with their respective Applicable Percentages in the manner provided in 8 Section 10, the portion of the Estimated Adjustment Fund as is claimed in such Shareholder Party Representative Claim Notice; PROVIDED, HOWEVER, that no amount shall be so released to any Nonresponding Shareholder unless and until such Shareholder has surrendered all certificates for Shares registered in the name of such Shareholder as contemplated in Section 5. (iv) On the date which is sixteen months following the date hereof, the Escrow Agent shall release to the Shareholders, in accordance with their respective Applicable Percentages in the manner provided in Section 10, the balance of the Escrow Holdback Fund, if any; PROVIDED, HOWEVER, that no amount shall be so released to any Nonresponding Shareholder unless and until such Shareholder has surrendered all certificates for Shares registered in the name of such Shareholder as contemplated in Section 5. (v) On the first anniversary of the date hereof, the Escrow Agent shall release to the Company, Parent or other member of the Buyer Group the balance of the Shareholder Payments Escrow Amounts, if any; PROVIDED, HOWEVER, that, subject to any applicable statute of limitations and/or escheat laws, no such release of funds shall relieve the Company of any obligations to deliver such amounts to the Shareholders entitled thereto pursuant to the terms of the Merger Agreement. (vi) Amounts shall be released from the Escrow Expense Fund from time to time prior to the date that is sixteen months following the date hereof, as requested by the Shareholder Party Representatives, in accordance with Section 7. On the date that is sixteen months following the date hereof, the Escrow Agent shall release to the Shareholders, in accordance with their respective Applicable Percentages in the manner provided in Section 10, the balance of the Escrow Expense Fund, if any; PROVIDED, HOWEVER, that no amount shall be so released to any Nonresponding Shareholder unless and until such Shareholder has surrendered all certificates for Shares registered in the name of such Shareholder as contemplated in Section 5. (vii) Amounts shall be released from the Escrow Tax Fund from time to time in accordance with Section 8. (b). In the event that the Escrow Agent receives a Shareholder Party Representative Objection Notice from the Shareholder Party Representatives, that portion of the Escrow Holdback Fund that is in dispute as reflected in such Shareholder Party Representative Objection Notice shall be held by the Escrow Agent until the occurrence of one of the following events: (i) Receipt by the Escrow Agent of Joint Instructions instructing the Escrow Agent to release the disputed portion of the Escrow Holdback Fund to such party or parties and in such amount or amounts as is specified in such Joint Instructions; or (ii) Receipt by the Escrow Agent of a written notice (a "CERTIFIED JUDGMENT NOTICE"), substantially in the form of EXHIBIT D hereto, from the Parent (or such other member of the Buyer Group) or the Shareholder Party Representatives 9 certifying that a final, nonappealable court judgment or settlement with respect to the claim covered by the Purchaser Claim Notice is attached to such Certified Judgment Notice, in which case the Escrow Agent shall distribute the disputed portion of the Escrow Holdback Fund in accordance with such judgment on the 30th day following the receipt of any Certified Judgment Notice, unless prior to such date the Escrow Agent receives a written notice (an "APPEAL NOTICE"), substantially in the form of EXHIBIT E hereto, from the party not submitting such Certified Judgment Notice, stating that the judgment has or can and will be appealed. A party delivering a Certified Judgment Notice or an Appeal Notice shall deliver to the other party hereto a copy thereof on or prior to the date of delivery thereof to the Escrow Agent, and the Escrow Agent shall also deliver a copy of each Certified Judgment Notice or Appeal Notice to the party which did not deliver the same promptly after the Escrow Agent's receipt thereof (provided that the failure of the Escrow Agent to make such delivery shall not affect the obligation of the Escrow Agent to release funds pursuant to this Section 9(b)). If the judgment is appealed, no release of the disputed portion of the Escrow Holdback Fund, will be made until delivery of a subsequent Certified Judgment Notice to the Escrow Agent, which notice is not the subject of subsequent Appeal Notice delivered in accordance with this Section 9(b)(ii). (c). In the event that the Escrow Agent receives a Parent Objection Notice or a Shareholder Party Representative Objection Notice, that portion of the Estimated Adjustment Fund that is in dispute as reflected in such Parent Objection Notice or such Shareholder Party Representative Objection Notice shall be held by the Escrow Agent until the occurrence of one of the following events: (i) Receipt by the Escrow Agent of Joint Instructions instructing the Escrow Agent to release the disputed portion of the Estimated Adjustment Fund to such party or parties and in such amount or amounts as is specified in such Joint Instructions; or (ii) Receipt by the Escrow Agent of a Certified Judgment Notice, substantially in the form of EXHIBIT D hereto, from the Parent or the Shareholder Party Representatives certifying that a final, nonappealable court judgment or settlement with respect to the claim covered by the Purchaser Claim Notice or the Shareholder Party Representative Claim Notice is attached to such Certified Judgment Notice, in which case the Escrow Agent shall distribute the disputed portion of the Estimated Adjustment Fund, in accordance with such judgment on the 30th day following the receipt of any Certified Judgment Notice, unless prior to such date the Escrow Agent receives an Appeal Notice, substantially in the form of EXHIBIT E hereto, from the party not submitting such Certified Judgment Notice, stating that the judgment has or can and will be appealed. A party delivering a Certified Judgment Notice or an Appeal Notice shall deliver to the other party hereto a copy thereof on or prior to the date of delivery thereof to the Escrow Agent, and the Escrow Agent shall also deliver a copy of each Certified Judgment Notice or Appeal Notice to the party which did not deliver the same promptly after the Escrow Agent's receipt thereof (provided that the failure of the Escrow Agent to make such delivery shall not affect the obligation of the Escrow Agent to release funds pursuant to this Section 9(c)). If the judgment is appealed, no release of the disputed portion of the 10 Estimated Adjustment Fund, will be made until delivery of a subsequent Certified Judgment Notice to the Escrow Agent, which notice is not the subject of subsequent Appeal Notice delivered in accordance with this Section 9(c)(ii). Section 10. MANNER OF MAKING PAYMENTS TO SHAREHOLDERS. Unless otherwise directed in writing by the Shareholder Party Representatives, the Escrow Agent shall release or pay any amount to be released or paid to Shareholders pursuant to this Agreement: (i) in the case of the shareholders listed on Exhibit F, by wire transfer of immediately available funds to the account of such Shareholder set forth in Exhibit F, or as otherwise designated in writing from time to time by such Shareholder to the Escrow Agent, and (ii) in the case of each other Shareholder, by bank check drawn on Old National Bank personally delivered to such Shareholder or mailed to the address of such Shareholder as set forth in the Letter of Transmittal submitted by such Shareholder as contemplated in Section 5. Section 11. TERMINATION. This Escrow Agreement shall terminate upon the payment by the Escrow Agent of all of the Escrow Funds in accordance with this Escrow Agreement. Notwithstanding any termination of this Escrow Agreement, the provisions of Section 12(c) and any outstanding amounts due under 12(d) hereof shall survive such termination and remain in full force and effect. Section 12. ESCROW AGENT. (a). OBLIGATIONS. (i) The sole obligations of the Escrow Agent are those specifically provided in this Escrow Agreement and the Escrow Agent shall have no liability under, or duty to inquire into, the terms and provisions of any agreement between the parties hereto. The duties of the Escrow Agent are purely ministerial in nature and it shall not incur any liability whatsoever, except for willful misconduct or gross negligence. (ii) The Escrow Agent shall not have any responsibility for the genuineness or validity of any document or other item deposited with it or of any signature thereon reasonably believed by it to be signed by the proper parties and shall not have any liability for acting in accordance with any written instructions or certificates given to it hereunder and reasonably believed by it to be signed by the proper parties. (b). RESIGNATION AND REMOVAL. The Escrow Agent may resign and be discharged from its duties hereunder at any time by giving at least 30 days notice of such resignation to the Parent and the Shareholder Party Representatives, specifying a date upon which such resignation shall take effect; PROVIDED, HOWEVER, that the resigning Escrow Agent shall continue to serve as escrow agent until its successor accepts the Escrow Funds and assumes all responsibilities as escrow agent hereunder. Upon receipt of such notice, a successor escrow agent shall be jointly appointed by the Parent and the Shareholder Party Representatives, such successor escrow agent to become the Escrow Agent hereunder on the resignation date specified in such notice. If an instrument of acceptance by a successor escrow agent shall not have been delivered to the 11 resigning Escrow Agent within 40 days after the giving of such notice of resignation, the resigning Escrow Agent may tender onto the registry or custody of any court of competent jurisdiction any part or all of the Escrow Funds and thereafter be relieved of its duties and obligations hereunder. The Parent and the Shareholder Party Representatives may at any time substitute a new Escrow Agent by giving 30 days written notice thereof to the existing Escrow Agent and paying all fees and expenses of such Escrow Agent incurred to the date of the substitution. (c). INDEMNIFICATION. The Shareholder Parties shall hold the Escrow Agent harmless from, and shall jointly and severally indemnify the Escrow Agent against, any loss, liability, expense (including attorney's fees and expenses), claim or demand (a "LOSS") arising out of or in connection with the performance of its obligations in accordance with the provisions of this Escrow Agreement and which are attributable to any act or omission of the Shareholder Parties or the Shareholder Party Representatives, except for any of the foregoing arising out of the gross negligence or willful misconduct of the Escrow Agent and PROVIDED, THAT, the maximum liability of each of Pieter V.C. Litchfield, Michael C. Larned, Michael D. de Milt, William J. Herdrich and Robert C. Weilminster for any Loss shall not exceed such individual's Applicable Percentage of the total amount of such Loss for which indemnification is to be provided by the Shareholder Parties. The Parent shall hold the Escrow Agent harmless from, and indemnify the Escrow Agent against, any Loss arising out of or in connection with the performance of its obligations in accordance with the provisions of this Escrow Agreement and which are attributable to any act or omission of the Parent, except for any of the foregoing arising out of the gross negligence or willful misconduct of the Escrow Agent. The Parent and the Shareholder Parties shall hold the Escrow Agent harmless from, and indemnify (with one-half to be borne by the Parent and one-half to be borne by the Shareholder Parties) the Escrow Agent against, any Loss arising out of or in connection with the performance of its obligations in accordance with the provisions of this Escrow Agreement and which are not attributable to any act or omission of the Parent, the Shareholder Parties or the Shareholder Party Representatives, except for any of the foregoing arising out of the gross negligence or willful misconduct of the Escrow Agent and PROVIDED, THAT, the maximum liability of each of Pieter V.C. Litchfield, Michael C. Larned, Michael D. de Milt, William J. Herdrich and Robert C. Weilminster for any Loss shall not exceed such individual's Applicable Percentage of the total amount of such Loss for which indemnification is to be provided by the Shareholder Parties. The foregoing indemnities in this paragraph shall survive the resignation or substitution of the Escrow Agent or the termination of this Escrow Agreement. (d). FEES AND EXPENSES OF ESCROW AGENT. For its services hereunder, the Escrow Agent shall be entitled to a one-time fee of $2,500 payable within ten (10) Business Days of receipt by the Parent and the Shareholder Party Representatives of an invoice therefor. No increase in the rate of any fee charged by the Escrow Agent shall be valid hereunder unless previously approved in writing by the Parent and the Shareholder Party Representatives of an invoice therefor. Such fees shall be paid one-half by the Parent and one-half by the Shareholder Party Representatives on behalf of the Shareholder Parties. In addition, the Escrow Agent shall be reimbursed for all reasonable out-of- pocket expenses, disbursements and advances (including, but not limited to postage, courier, overnight mail insurance, money wire transfer, long distance telephone charges, facsimile, stationery and travel expenses), and including reasonable attorneys' fees and reasonable accounting fees, incurred by the Escrow Agent not in the ordinary course of 12 business. The amount of such reimbursement shall be paid one half by the Parent and one half by the Shareholder Party Representatives on behalf of the Shareholder Parties. These fees described in this paragraph (d) do not include extraordinary services which will be priced according to time and scope of duties and shall be previously approved in writing by the Parent and the Shareholder Party Representatives. The fees described in this paragraph (d) shall be deemed earned in full upon receipt by the Escrow Agent, and no portion shall be refundable for any reason, including without limitation, termination of the Escrow Agreement. Section 13. SHAREHOLDER PARTY REPRESENTATIVES. Following the signing of this Escrow Agreement, the Shareholder Party Representatives, acting individually or jointly, shall be authorized to receive any and all payments, assignments, instruments and other deliveries to be made or delivered to the Principal Shareholders pursuant to this Escrow Agreement and to act for and on behalf of each Principal Shareholder with respect to this Escrow Agreement, including, without limitation, in all instances where the Principal Shareholders or any of them are required or permitted to give any approval or consent or to take any other action under this Escrow Agreement. The Parent, Company and the Escrow Agent shall not be responsible for the proper application by the Shareholder Party Representatives of any payment, assignment, instrument or other delivery made to the Shareholder Party Representatives for the benefit of any of the Principal Shareholders or for the Shareholder Party Representatives' compliance with the terms and provisions of this Escrow Agreement and shall be entitled to rely conclusively upon the actions of the Shareholder Party Representatives as actions for and on behalf of the Principal Shareholders with respect to this Escrow Agreement. Notwithstanding anything to the contrary contained herein, neither of the Shareholder Party Representatives shall be required to take, or liable for failing to take, any action not expressly required to be taken by the Shareholder Party Representatives pursuant to the terms of this Escrow Agreement and in no event shall either of the Shareholder Party Representatives be personally responsible or liable for any obligation or liability hereunder of any Shareholder or other party hereto or for the proper application by any Principal Shareholder or any other person of any payment, assignment, instrument or other delivery made by either of the Shareholder Party Representatives to such Principal Shareholder or other person. Wherever in this Escrow Agreement the Shareholder Party Representatives are authorized or permitted to take any action, such action may be taken by either or both of them and the act of either of them shall be deemed to be the act of both, and the Parent, Company and Escrow Agent shall be entitled to rely upon any such action accordingly. Section 14. DISPUTES. If any dispute should arise with respect to the payment or ownership or right of possession of the Escrow Funds, the Escrow Agent is authorized and directed to retain in its possession, without liability to anyone, all or any part of the Escrow Funds until such dispute shall have been settled either by mutual agreement of the parties concerned (including the Parent and the Shareholder Party Representatives) or by the final order, decree or judgment of a court of competent jurisdiction in the United States of America (the time for appeal having expired with no appeal having been taken) in a proceeding to which the Parent (or such other member of the Buyer Group) and the Shareholder Party Representatives are parties, but the Escrow Agent shall be under no duty whatsoever to institute or defend any such proceedings. 13 Section 15. NOTICES. All notices and other communications required hereunder or in connection herewith shall be in writing and shall be deemed to have been duly given if personally delivered or if sent by nationally-recognized overnight courier, by telecopy, or by registered or certified mail, return receipt requested and postage prepaid, addressed as follows: IF TO THE PARENT AND/OR COMPANY, TO: BERRY PLASTICS CORPORATION 101 OAKLEY STREET EVANSVILLE, INDIANA 47710 ATTENTION: JAMES M. KRATOCHVIL TELEPHONE: (812) 421-9604 FACSIMILE: (812) 424-2904; WITH A COPY TO: O'SULLIVAN GRAEV & KARABELL, LLP 30 ROCKEFELLER PLAZA, 41ST FLOOR NEW YORK, NEW YORK 10112 ATTENTION: MICHAEL J. O'BRIEN, ESQ. FACSIMILE: (212) 408-2420 TELEPHONE: (212) 408-2400; IF TO THE SHAREHOLDER PARTY REPRESENTATIVES OR THE SHAREHOLDER PARTIES, TO: MICHAEL C. LARNED 178 FARMS ROAD STAMFORD, CONNECTICUT 06903 FACSIMILE: (203) 986-1522; MICHAEL D. DE MILT 62 WOODMERE ROAD STAMFORD, CONNECTICUT 06905 FACSIMILE (203) 986-1522; WITH A COPY TO: DEWEY BALLANTINE LLP 1301 AVENUE OF THE AMERICAS NEW YORK, NEW YORK 10019-6092 ATTENTION: BRIAN J. MORRIS, ESQ. 14 TELECOPIER: (212) 259-6333. IF TO THE ESCROW AGENT, TO: OLD NATIONAL TRUST COMPANY 420 MAIN STREET EVANSVILLE, INDIANA 47708 ATTENTION: SHANNON MARSHALL FACSIMILE: 812-461-9738; TELEPHONE: 812-461-9741 or to such other address as the parties hereto to whom notice is to be given may have furnished in writing to the other parties hereto. Any such notice or communication shall be deemed to have been received (i) in the case of personal delivery, on the date of such delivery, (ii) in the case of nationally- recognized overnight courier, on the next Business Day after the date when sent, (iii) in the case of telecopy transmission, when received, and (iv) in the case of mailing, on the third Business Day following that on which the piece of mail containing such communication is posted. Section 16. COUNTERPARTS. This agreement may be executed in any number of counterparts and each such counterpart shall be deemed to be an original instrument, but all such counterparts together shall constitute but one agreement. Section 17. GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICTING PROVISION OR RULE (WHETHER OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK TO BE APPLIED. IN FURTHERANCE OF THE FOREGOING, THE INTERNAL LAW OF THE STATE OF NEW YORK WILL CONTROL THE INTERPRETATION AND CONSTRUCTION OF THIS AGREEMENT, EVEN IF UNDER SUCH JURISDICTION'S CHOICE OF LAW OR CONFLICT OF LAW ANALYSIS, THE SUBSTANTIVE LAW OF SOME OTHER JURISDICTION WOULD ORDINARILY APPLY. IT IS THE INTENTION OF THE PARTIES HERETO THAT THE SITUS OF THE ESCROW FUND BE AND IT SHALL BE ADMINISTERED IN THE STATE IN WHICH THE PRINCIPAL OFFICE OF THE ESCROW AGENT FROM TIME TO TIME ACTING HEREUNDER IS LOCATED. 15 Section 18. BENEFITS OF ESCROW AGREEMENT. All the terms and provisions of this Escrow Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Anything contained herein to the contrary notwithstanding, this Escrow Agreement shall not be assignable by any party hereto without the consent of the Parent, the Shareholder Party Representatives and the Escrow Agent; PROVIDED, HOWEVER, that the Parent may assign its rights hereunder to its lenders and their successors and assigns or any other financing source of the Parent, PROVIDED, FURTHER, HOWEVER, that no such assignment shall relieve the Parent from any of its obligations or liabilities hereunder. Section 19. MODIFICATION. This Escrow Agreement shall not be altered or otherwise amended except pursuant to an instrument in writing signed by each of the parties hereto. Section 20. DESCRIPTIVE HEADINGS. The descriptive headings in this Escrow Agreement are for convenience only and shall not control or affect the meaning or construction of any provision hereof. Section 21. ENTIRE AGREEMENT. This Escrow Agreement and the other agreements and documents referenced herein contain all the agreements among the parties with respect to the transactions contemplated hereby and supersede all prior agreements and understandings among the parties with respect thereto. * * * * * 16 IN WITNESS WHEREOF, the parties hereto have caused this Escrow Agreement to be executed and delivered on the date first above written. BERRY PLASTICS CORPORATION By: /S/ JAMES KRATOCHVIL Name: James Kratochvil Title: Executive Vice President, Chief Financial Officer, Treasurer and Secretary POLY-SEAL CORPORATION By: /S/ MICHAEL C. LARNED Name: Michael C. Larned Title: Chairman of the Board OLD NATIONAL TRUST COMPANY By: /S/ SHANNON MARSHALL Name: Shannon Marshall Title: Corporate Accounts Officer SHAREHOLDER PARTY REPRESENTATIVES /S/ MICHAEL D. DE MILT Michael D. de Milt /S/ MICHAEL C. LARNED Michael C. Larned EXHIBIT A LETTER OF TRANSMITTAL EXHIBIT B SHAREHOLDERS See Attached.
SHAREHOLDER CERTIFICATE # NUMBER OF SHARES Applicable PERCENTAGE Michael C. Larned and Michael D. 318 534 534 0.05 deMilt, Trustees of The Evangela del Sandys Burton Revocable Trust u/a/d 11/1/89 c/o The Brooklyn Improvement Co. Michael C. Larned and Michael D. 475 4,534 4,534 0.43 deMilt, Trustees of The Notrub Credit Shelter Trust u/w/o John R. Burton c/o The Brooklyn Improvement Co. John R. Burton, III 339 133 340 133 266 0.03 Michael D. deMilt, Trustee of The 493 2,209 2,209 0.21 Emily K. Larned Trust u/a/d 11/01/95 c/o The Brooklyn Improvement Co. Michael D. deMilt, Trustee 422 1,219 Trust u/a/d 12/27/93 446 450 Marguerita S. Larned 469 540 2,209 0.21 c/o The Brooklyn Improvement Co. Robert B. Hamill and Michael C. 457 8,205 8,205 0.78 Larned, Trustees of The Robert B. Hamill Trust u/a/d 6/20/ 97 Michael C. Larned, Trustee of The 311 2,129 Eric H. Litchfield Trust u/a/d 306 2,129 4,258 0.40 2/5/73 c/o Brooklyn Improvement Co. Michael C. Larned, Trustee of The 321 3,947 3,947 0.38 Eric H. Litchfield Trust u/a/d 11/22/86 c/o Brooklyn Improvement Co. Michael C. Larned, Trustee of The 428 8,205 8,205 0.78 Amelia H. Hopkins Trust u/a/d 8/25/85 c/o The Brooklyn Improvement Co.
Michael C. Larned, Trustee of The 332 241 Ann L. Schofield Trust u/a/d 361 273 08/29/90 381 280 c/o The Brooklyn Improvement Co. 417 425 437 450 460 540 2,209 0.21 Michael C. Larned, Trustee of The 335 241 Beatrice L. Larned Revocable 362 273 Trust u/a/d 3/1/90 382 280 c/o The Brooklyn Improvement Co. 404 425 438 450 461 540 2,209 0.21 Michael C. Larned, Trustee of The 336 241 Matthew S. Litchfield Trust u/a/d 363 273 12/27/79 383 280 c/o The Brooklyn Improvement Co. 405 425 439 450 462 540 2,209 0.21 Michael C. Larned, Trustee of The 499 2,209 2,209 0.21 Gregory H. Litchfield Trust u/a/d 2/12/96 c/o The Brooklyn Improvement Co. Michael C. Larned, Trustee of The 333 241 William S. Litchfield Trust u/a/d 365 273 10/31/81 385 280 c/o The Brooklyn Improvement Co. 407 425 441 450 464 540 2,209 0.21 Michael C. Larned, Trustee of The 331 241 0.21 Carolyn A. Schofield Trust u/a/d 366 273 2/22/86 386 280 c/o The Brooklyn Improvement Co. 408 425 442 450 465 540 2,209
Michael C. Larned, Trustee of The 328 241 Jeremy S. Schofield Trust u/a/d 367 273 6/1/87 387 280 c/o The Brooklyn Improvement Co. 409 425 443 450 466 540 2,209 0.21 Michael C. Larned, Trustee of The 329 241 Jonathan E. Schofield Trust u/a/d 368 273 7/21/91 388 280 c/o The Brooklyn Improvement Co. 410 425 444 450 467 540 2,209 0.21 Michael C. Larned, Trustee of the 330 241 Julia K. Schofield Trust u/a/d 369 273 10/15/82 389 280 c/o The Brooklyn Improvement Co. 411 425 445 450 468 540 2,209 0.21 Pieter V. C. Litchfield 219 5,000 316 3,400 315 3,400 326 241 360 273 380 280 402 425 436 450 459 540 14,009 1.33 Sarah R. Litchfield and Michael 452 2,000 2,000 0.19 C. Larned, Trustees of The Sarah R. Litchfield 1996 Revocable Trust u/a/d 12/30/96 c/o The Brooklyn Improvement Co. Christopher S. Litchfield 312 2,129 305 2,129 323 3,947 8,205 0.78
SHAREHOLDER CERTIFICATE # NUMBER OF SHARES Applicable PERCENTAGE Shirley A. Allen 358 25 357 200 225 0.02 John T. Brown 11 200 153 200 400 0.04 Charles W. Burgess 54 100 55 100 56 100 57 100 58 100 154 500 1,000 0.10 Betty H. Coons, Trustee of The 285 4,999 4,000 0.38 Betty H. Coons Survivor's Trust B u/a/d 8/24/85 Nancy M. Chandler 342 300 300 0.03 Shirley D. Courtney 492 100 126 100 159 200 491 600 1,000 0.10 James A. Dowell, Jr. 138 250 163 250 500 0.05 William E. Freyer 260 400 400 0.04 Kenneth M. Gillman 425 50 50 0.00 Rose Hall 131 50 168 50 100 0.01 Eileen C. House 495 1,000 1,000 0.10 Gilgod C. Iskelov 232 100 235 100 200 0.02
Earl H. Kahl 34 100 71 100 120 100 141 50 171 350 700 0.07 George M. Kresnosky 474 1,250 1,250 0.12 John W. Limbach 74 250 75 250 112 200 179 700 1,400 0.13 Clara Longo 78 100 183 100 200 0.20 Karl G. Mauck 237 100 297 300 400 0.40 Harry Keith Myers 99 100 100 200 140 100 253 100 254 300 212 400 1,200 0.11 Mauro O'Brien 341 300 300 0.03 Catherine Owsianiecki 77 100 189 100 200 0.02 Patricia Rebbert 42 100 200 0.02 192 100 H.B.B. Robinson 93 66 193 66 132 0.01 H. Thomas Sharpe, Jr. 481 4,000 455 2,000 6,000 0.57 Jeana M. Torzilli 128 100 195 100 230 200 400 0.04
Richard K. Wahl 483 228 228 0.02 Norman R. Warrell 484 750 750 0.07 TOTAL NUMBER OF AUTHORIZED SHARES: 1,500,000 TOTAL NUMBER OF OUTSTANDING SHARES: 1,051,578 TOTAL NUMBER OF SHAREHOLDERS: 53
EXHIBIT C [Date] [Escrow Agent] INSTRUCTIONS FOR RELEASE OF ESCROW FUND Ladies and Gentlemen: Reference is made to the Escrow Agreement dated ____________, 2000 (the "ESCROW AGREEMENT"), among Berry Plastics Corporation, Poly-Seal Corporation, the Shareholder Party Representatives and you. Capitalized terms used herein but not otherwise defined shall have the meanings ascribed to them in the Escrow Agreement. In accordance with Section 6(a)(i) of the Escrow Agreement, the undersigned hereby instructs you to disburse [indicate amount] from the [indicate relevant Escrow Fund(s)] to [indicate recipients]. BERRY PLASTICS CORPORATION By: Name: Title: SHAREHOLDER PARTY REPRESENTATIVES ______________________________ Michael D. de Milt _____________________________ Michael C. Larned EXHIBIT D [Date] [ESCROW AGENT] NOTICE OF CERTIFIED JUDGMENT Gentlemen: Reference is made to the Escrow Agreement dated ____________, 2000 (the "ESCROW AGREEMENT"), among Berry Plastics Corporation, Poly-Seal Corporation, the Shareholder Party Representatives and you. Capitalized terms used herein but not otherwise defined shall have the meanings ascribed to them in the Escrow Agreement. In accordance with [Section 9(b)(ii)/Section 9(c)(ii)] of the Escrow Agreement, the undersigned hereby instructs you to disburse from the [Escrow Holdback Fund/Estimated Adjustment Fund] to the persons named in the final court judgment (a certified copy of which is attached hereto) the amounts set forth therein. BERRY PLASTICS CORPORATION By:_____________________________ Name: Title: -or- SHAREHOLDER PARTY REPRESENTATIVES _____________________________ Michael D. de Milt _____________________________ Michael C. Larned EXHIBIT E [Date] [ESCROW AGENT] NOTICE OF APPEAL Gentlemen: Reference is made to the Escrow Agreement dated ____________, 2000 (the "ESCROW AGREEMENT"), among Berry Plastics Corporation, Poly-Seal Corporation, the Shareholder Party Representatives and you. Capitalized terms used herein but not otherwise defined shall have the meanings ascribed to them in the Escrow Agreement. In accordance with [Section 9(b)(ii)/Section 9(c)(ii)] of the Escrow Agreement, the undersigned hereby instructs you not to disburse from the [Escrow Holdback Fund/Estimated Adjustments Fund] to the persons named in the court judgment certified to you as final pursuant to a notice dated _________, 20___ . This judgment is or can and will be appealed. BERRY PLASTICS CORPORATION By:_____________________________ Name: Title: -or- SHAREHOLDER PARTY REPRESENTATIVES _____________________________ Michael D. de Milt _____________________________ Michael C. Larned EXHIBIT F WIRE INSTRUCTIONS See Attached. EX-99.2 14 CONTACT:MARTIN R. IMBLER PRESIDENT & CEO 812/424-2904 BERRY PLASTICS COMPLETES ACQUISITION OF POLY-SEAL FOR IMMEDIATE RELEASE: EVANSVILLE, INDIANA, May 10, 2000 - Berry Plastics Corporation announced today that it has successfully completed its acquisition of Poly-Seal Corporation, headquartered in Baltimore, Maryland. As a result of the acquisition, Poly-Seal becomes a wholly-owned subsidiary of Berry Plastics Corporation. Terms of the transaction were not disclosed. Poly-Seal, with annual net sales in excess of $50 million, is one of the nation's leading manufacturers of injection-molded and compression-molded plastic closures for a wide variety of end-use markets. "We're delighted to complete this important acquisition," said Martin R. Imbler, President and Chief Executive Officer of Berry Plastics. "It is a major step in expanding our participation in the plastic closures business. This is a new market for us, and although it is related to our existing product lines, closures offers an additional growth opportunity as well as the chance to develop innovative new value-added products." Poly-Seal's plant location in Baltimore will become the primary manufacturing point for Berry's U.S. plastic closure business. Berry currently produces plastic closures for the European market at its plant in Norwich, England. Bill Herdrich, former President and Chief Executive Officer of Poly-Seal, will continue to work with Berry Plastics as a Consultant focused on the closures business. Robert Weilminster, former Chief Financial Officer of Poly-Seal, has accepted the position of Plant Manager in charge of all operations at the Baltimore facility. Berry Plastics Corporation is a leading manufacturer and marketer of injection- molded plastic aerosol overcaps, closures, drink cups, rigid thinwall open-top containers and housewares. The company is headquartered in Evansville, Indiana, and, together with its subsidiaries, also has plants in Henderson, Nevada; Iowa Falls, Iowa; Charlotte, North Carolina; York, Pennsylvania; Lawrence, Kansas; Suffolk, Virginia; Monroeville, Ohio; Woodstock, Illinois; Streetsboro, Ohio; Minneapolis, Minnesota; Baltimore, Maryland and Norwich, England. Berry Plastics' principal owners include affiliates of First Atlantic Capital, Chase Capital Partners, Aetna Life Insurance Company and members of Berry's management. -----END PRIVACY-ENHANCED MESSAGE-----