Exhibit 10(c)


 


EXECUTION VERSION


 




 





 


SHARE PURCHASE
AGREEMENT


 


 










 


 


Between


 


 


Bemis Company, Inc.


 


And


 


 


Pechiney Plastic
Packaging, Inc.


 


Dated as of July 5,
2009


 




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  
	
   

  
	
  DEFINITIONS

  
	
   

  	
   

  	
   

  
	
  SECTION 1.01.

  	
  Certain
  Defined Terms

  	
  1

  
	
  SECTION 1.02.

  	
  Interpretation
  and Rules of Construction

  	
  6

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  
	
   

  
	
  PURCHASE AND SALE

  
	
   

  	
   

  	
   

  
	
  SECTION 2.01.

  	
  Purchase
  and Sale of the Shares

  	
  8

  
	
  SECTION 2.02.

  	
  Issuance
  Amount

  	
  8

  
	
  SECTION 2.03.

  	
  Closing

  	
  9

  
	
  SECTION 2.04.

  	
  Closing
  Deliveries by the Company

  	
  9

  
	
  SECTION 2.05.

  	
  Closing
  Deliveries by the Investor

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  
	
   

  
	
  REPRESENTATIONS AND WARRANTIES OF THE COMPANY

  
	
   

  	
   

  	
   

  
	
  SECTION 3.01.

  	
  Organization
  and Authority of the Company

  	
  10

  
	
  SECTION 3.02.

  	
  Capitalization;
  Ownership of Shares

  	
  11

  
	
  SECTION 3.03.

  	
  No
  Conflict

  	
  11

  
	
  SECTION 3.04.

  	
  Governmental
  and Stockholder Consents and Approvals

  	
  12

  
	
  SECTION 3.05.

  	
  SEC
  Reports; Sarbanes-Oxley Act

  	
  12

  
	
  SECTION 3.06.

  	
  Litigation

  	
  13

  
	
  SECTION 3.07.

  	
  Compliance
  with Laws; Permits

  	
  13

  
	
  SECTION 3.08.

  	
  Environmental
  Matters

  	
  14

  
	
  SECTION 3.09.

  	
  Taxes

  	
  14

  
	
  SECTION 3.10.

  	
  No
  Material Adverse Change

  	
  15

  
	
  SECTION 3.11.

  	
  Investment
  Company Act

  	
  15

  
	
  SECTION 3.12.

  	
  Solvency

  	
  15

  
	
  SECTION 3.13.

  	
  NYSE
  Listing

  	
  15

  
	
  SECTION 3.14.

  	
  Share
  Register

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  
	
   

  
	
  REPRESENTATIONS AND WARRANTIES OF THE INVESTOR

  
	
   

  	
   

  	
   

  
	
  SECTION 4.01.

  	
  Organization
  and Authority of the Investor

  	
  16

  



 

















 


	
  SECTION 4.02.

  	
  No
  Conflict

  	
  16

  
	
  SECTION 4.03.

  	
  Governmental
  Consents and Approvals

  	
  16

  
	
  SECTION 4.04.

  	
  Securities,
  Investment, Accredited Investor

  	
  17

  
	
  SECTION 4.05.

  	
  Investor’s
  Independent Investigation

  	
  17

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  
	
   

  
	
  CERTAIN ADDITIONAL AGREEMENTS OF THE PARTIES

  
	
   

  	
   

  	
   

  
	
  SECTION 5.01.

  	
  Conduct
  of Business Prior to the Closing

  	
  18

  
	
  SECTION 5.02.

  	
  Access
  to Information

  	
  19

  
	
  SECTION 5.03.

  	
  Confidentiality

  	
  19

  
	
  SECTION 5.04.

  	
  Further
  Action; HSR Notification

  	
  19

  
	
  SECTION 5.05.

  	
  Notice
  of Developments

  	
  20

  
	
  SECTION 5.06.

  	
  Legends

  	
  20

  
	
  SECTION 5.07.

  	
  Lost,
  Stolen, Destroyed or Mutilated Securities

  	
  21

  
	
  SECTION 5.08.

  	
  NYSE
  Listing

  	
  21

  
	
  SECTION 5.09.

  	
  Registration
  and Registered Offerings

  	
  21

  
	
  SECTION 5.10.

  	
  Call
  Provision

  	
  22

  
	
  SECTION 5.11.

  	
  Replacement
  Equity Financing

  	
  23

  
	
  SECTION 5.12.

  	
  Rights
  to Purchase Additional Shares of Common Stock

  	
  23

  
	
  SECTION 5.13.

  	
  Lock-Up

  	
  24

  
	
  SECTION 5.14.

  	
  Standstill

  	
  24

  
	
  SECTION 5.15.

  	
  Transfer
  Restrictions

  	
  25

  
	
  SECTION 5.16.

  	
  Termination
  of Rights Agreement

  	
  25

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  
	
   

  
	
  CONDITIONS TO CLOSING

  
	
   

  	
   

  	
   

  
	
  SECTION 6.01.

  	
  Conditions
  to Obligations of the Company

  	
  25

  
	
  SECTION 6.02.

  	
  Conditions
  to Obligations of the Investor

  	
  26

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  
	
   

  
	
  INDEMNIFICATION

  
	
   

  
	
  SECTION 7.01.

  	
  Survival
  of Representations, Warranties, Covenants and Agreements

  	
  27

  
	
  SECTION 7.02.

  	
  Indemnification
  by the Company

  	
  27

  
	
  SECTION 7.03.

  	
  Indemnification
  by the Investor

  	
  28

  
	
  SECTION 7.04.

  	
  Limits
  on Indemnification

  	
  28

  
	
  SECTION 7.05.

  	
  Notice
  of Loss; Third Party Claims

  	
  29

  
	
  SECTION 7.06.

  	
  Remedies

  	
  30

  
	
  SECTION 7.07.

  	
  Subrogation

  	
  30

  



 

















 


	
  ARTICLE VIII

  
	
   

  
	
  TERMINATION, AMENDMENT AND WAIVER

  
	
  SECTION 8.01.

  	
  Termination

  	
  30

  
	
  SECTION 8.02.

  	
  Effect
  of Termination

  	
  31

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  
	
   

  
	
  GENERAL PROVISIONS

  
	
   

  	
   

  	
   

  
	
  SECTION 9.01.

  	
  Expenses

  	
  31

  
	
  SECTION 9.02.

  	
  Notices

  	
  31

  
	
  SECTION 9.03.

  	
  Public
  Announcements

  	
  32

  
	
  SECTION 9.04.

  	
  Severability

  	
  32

  
	
  SECTION 9.05.

  	
  Entire
  Agreement

  	
  32

  
	
  SECTION 9.06.

  	
  Assignment

  	
  32

  
	
  SECTION 9.07.

  	
  Amendment

  	
  33

  
	
  SECTION 9.08.

  	
  Waiver

  	
  33

  
	
  SECTION 9.09.

  	
  Third
  Party Beneficiaries

  	
  33

  
	
  SECTION 9.10.

  	
  Currency

  	
  33

  
	
  SECTION 9.11.

  	
  Specific
  Performance

  	
  33

  
	
  SECTION 9.12.

  	
  Governing
  Law

  	
  33

  
	
  SECTION 9.13.

  	
  Waiver
  of Jury Trial

  	
  34

  
	
  SECTION 9.14.

  	
  Counterparts

  	
  34

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Registration
  Rights Agreement

  	
  A-1

  
	
   

  	
   

  	
   

  
	
  Exhibit B

  	
  Substance of Legal Opinion from the Company’s Counsel

  	
  B-1

  



 

















 


THIS
SHARE PURCHASE AGREEMENT (this “Agreement”), is made and entered into as
of July 5, 2009, between Bemis Company, Inc., a Missouri corporation
(the “Company”), and Pechiney Plastic Packaging, Inc., a Delaware
corporation (the “Investor”) (each a “Party” and together the “Parties”).


 


WHEREAS,
on or about the date of this Agreement, the Company and the Investor (inter
alia) have entered into that certain Sale and Purchase Agreement, dated July 5,
2009 (the “Transaction Agreement”);


 


WHEREAS,
pursuant to the Transaction Agreement, the Investor has agreed or will agree,
among other things, to transfer the PPPI Sale Business (as defined below) to
the Company, on the terms and subject to the conditions set forth therein and
in this Agreement;


 


WHEREAS,
pursuant to the Transaction Agreement, the Investor has agreed, if requested by
the Company, that the Company may satisfy in part the consideration payable to
the Investor in respect of the PPPI Sale Business by issuing to the Investor
shares of the common stock, par value $0.10 per share (“Common Stock”),
of the Company with a value of up to $200 million, such shares representing no
more than 19.9% of the issued and outstanding Common Stock immediately prior to
such issuance, on the terms and subject to the conditions set forth therein and
in this Agreement; and


 


WHEREAS,
concurrently with Closing, the Company will enter into a registration rights
agreement with the Investor (the “Registration Rights Agreement”),
substantially in the form attached hereto as Exhibit A.


 


NOW,
THEREFORE, in consideration of the premises and the mutual agreements and
covenants hereinafter set forth, and intending to be legally bound, the Company
and the Investor hereby agree as follows:


 


ARTICLE I


 


DEFINITIONS


 


SECTION 1.01.      Certain
Defined Terms.  For purposes of this
Agreement:


 


“Action”
means any litigation, action, suit, demand, complaint, charge, binding
arbitration or other legal, administrative or judicial proceeding.


 


“Affiliate”
means, in relation to any person, any other person Controlling, Controlled by
or under common Control with that person.


 


“Assets”
means the assets and properties of the Company and its Subsidiaries.


 

















 


“beneficial
ownership,” “beneficially owned” or “own beneficially” shall
have the meaning set forth in Rule 13d-3 (without regard to the 60-day
provision in paragraph (d)(1)(i)) under the Exchange Act.


 


“Benefit
Plans” means all employee benefit plans (as defined in Section 3(3) of
ERISA whether or not subject to ERISA) and all bonus (including change in
control or other transaction bonus), stock option, stock purchase, restricted
stock, incentive, deferred compensation, retiree medical or life insurance,
pension, retirement, supplemental retirement, severance or other benefit plans,
programs or arrangements, and all employment, termination, severance or other
contracts or agreements, arrangements or understandings, (a) to which the
Company is a party, (b) with respect to which the Company has any
obligation or (c) which are maintained, contributed to or sponsored by the
Company for the benefit of any current or former employee, officer or director
of the Company.


 


“Business
Day” means a day when banks are generally open for business in the State of
New York and the City of London.


 


“Closing
Date” has the meaning ascribed to such term in the Transaction Agreement.


 


“Code”
means the United States Internal Revenue Code of 1986, as amended.


 


“Confidentiality Agreement” means that certain
letter agreement, dated as of June 11, 2008, among the Company, Rio Tinto
plc, Rio Tinto Alcan Inc. and Amcor Limited.


 


“control”
(including the terms “controlled by” and “under common control with”),
with respect to the relationship between or among two or more Persons, means
the possession, directly or indirectly, or as trustee, personal representative
or executor, of the power to direct or cause the direction of the affairs or
management of a Person, whether through the ownership of voting securities, as
trustee, personal representative or executor, by contract or otherwise.


 


“Director”
means a member of the Board of Directors of the Company.


 


“Enforcement
Limitation” means any applicable bankruptcy, reorganization, insolvency,
moratorium or other similar Law affecting creditor’s rights generally and
principles governing the availability of equitable remedies.


 


“Environmental
Laws” means any and all Laws as in effect at Closing applicable to the
Company which regulate the storage, treatment, release, disposal, emission or
discharge of Hazardous Matter and remedies with respect to Harm from Hazardous
Matter, including the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. § 9601 et seq., the Federal Water
Pollution Control Act, 33 U.S.C. § 1251 et seq., the Resource Compensation and
Recovery Act of 


 


2

















 


1976, 42 U.S.C. § 6901 et seq., the Clean Air Act, 42
U.S.C. § 7401 et seq., the Emergency Planning and Community Right-to-Know Act,
42 U.S.C. § 11001 et seq., and the Toxic Substances Control Act, 15 U.S.C. §
2601 et seq., and similar Laws in any other jurisdiction in which the Company
conducts business.


 


“Equity
Commitment” means US$200,000,000.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended, and any rules and
regulations promulgated thereunder.


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and any rules and
regulations promulgated thereunder.


 


“GAAP”
means United States generally accepted accounting principles and practices of
the Financial Accounting Standards Board (and its predecessors) and the
American Institute of Certified Public Accountants otherwise specified, as in
effect on the date hereof or, with respect to any financial statements, as in
effect on the date of the relevant financial statement.


 


“Governmental
Authority” means any governmental authority or governmental agency with
power to issue legally binding orders or directions or to enact or promulgate
primary or secondary legislation.


 


“Governmental
Order” means any order, writ, judgment, injunction, decree, stipulation,
determination or award entered by or with any Governmental Authority.


 


“Hazardous
Substance” means any substance, material, liquid, solid, gas or other
matter of whatsoever nature, which is an actual or likely cause of or is
otherwise capable of causing harm or damage to, or other interference with, the
environment, is listed, defined, designated or classified as hazardous,
radioactive, toxic, a pollutant, a contaminant, or otherwise regulated, under
any Environmental Laws or any applicable Laws concerning health and safety
matters, including petroleum, oil and all derivatives thereof or synthetic
substitutes thereof and asbestos or asbestos-containing materials.


 


“HSR
Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended, and any rules and regulations promulgated thereunder.


 


“Indemnified
Party” means an Investor Indemnified Party pursuant to Section 7.02 or
a Company Indemnified Party, pursuant to Section 7.03, as the case may be.


 


“Indemnifying
Party” means the Company pursuant to Section 7.02 or the Investor
pursuant to Section 7.03, as the case may be.


 


“Intellectual
Property” means all rights in and in relation to: patents, trade marks, service
marks, domain names, design rights, copyright, inventions, trade secrets,
research 


 


3

















 


and development, confidential know-how and other
intellectual property which, in each case, is protected by law (whether
statutory or otherwise).


 


“Law” means any , national, federal, state,
provincial, regional, local, municipal or other law, treaty, constitution,
statute, executive order, injunction, judgment or decree and any primary or
secondary legislation enacted or promulgated by a Governmental Authority acting
within its powers, including any rules and regulations promulgated by any
such Governmental Authority.


 


“Longstop
Date” has the meaning ascribed to such term in the Transaction Agreement
(as the same may be extended).


 


“Material
Adverse Effect” means a material adverse effect on (i) the financial
position or business of the Company and its Subsidiaries taken as a whole or (ii) the
validity or enforceability of this Agreement or the rights or remedies of the
Investor hereunder; provided that Material Adverse Effect shall not include any
change resulting solely from the entry into or announcement of the Transaction
Agreement or the announcement or consummation of any of the transactions
contemplated thereby.


 


“Material
Contracts” means any contract or other arrangement to which the Company or
any of its Subsidiaries is a party (other than this Agreement) for which
breach, nonperformance, cancellation or failure to renew could reasonably be
expected to have a Material Adverse Effect.


 


“Material
Subsidiary” means at any time a Subsidiary which as of such time meets the
definition of a “significant subsidiary” contained as of the date hereof in
Regulation S-X issued by the SEC.


 


“Own
or Control” shall mean (a) ownership of record, (b) beneficial
ownership or (c) the power to direct, by agreement, agency or in any other
manner, the voting of shares of Common Stock.


 


“Person”
means any individual, partnership, firm, corporation, limited liability
company, association, trust, unincorporated organization or other entity, as
well as any syndicate or group that would be deemed to be a person under Section 13(d)(3) of
the Exchange Act.


 


“PPPI
Sale Business” has the meaning ascribed to such term in the Transaction
Agreement.


 


“Rights
Agreement” means the Rights Agreement, dated as of July 29, 1999,
between the Company and Wells Fargo Bank, National Association (formerly known
as Wells Fargo Bank Minnesota, National Association, itself formerly Norwest
Bank Minnesota, National Association).


 


4

















 


“SEC”
means the United States Securities and Exchange Commission and any successor
thereto.


 


“Securities
Act” means the Securities Act of 1933, as amended, and any rules and
regulations promulgated thereunder.


 


“Solvent” means, with respect to a Person on a
particular date, that on such date: (a) (i) the present fair market value and present
fair saleable value of such Person’s assets exceeds (A) the amount of all
its debts and liabilities (including contingent, subordinated, unmatured,
unliquidated and other liabilities) and (B) the amount required to pay
such Person’s liabilities on all its debts and liabilities (including
contingent, subordinated, unmatured, unliquidated and other liabilities) as
they become absolute and matured; (ii) such Person is able to realize upon
its assets and pay its debts and other liabilities (including contingent,
subordinated, unmatured, unliquidated and other liabilities), as they become
absolute and matured; (iii) such Person is not incurring, and does not
propose or intend to, and does not believe that it will, incur, debts or
liabilities beyond its ability to pay as such debts and liabilities mature; (iv) such
Person is not engaged, and does not propose or intend to engage, in any
business or transaction for which its property would constitute unreasonably
small capital; (v) such Person is not a defendant in any civil action that
would result in a judgment that it is or would become unable to satisfy; (vi) such
Person is not insolvent or undercapitalized for purposes of any bankruptcy or
insolvency Law applicable to such Person; and (vii) such Person has not
admitted in writing its inability to pay its debts as they fall due or any of
the foregoing; and (b) such Person has not (i) made a general
assignment for the benefit of creditors or an offer of settlement, extension or
composition to its creditors generally, (ii) filed any voluntary petition
in bankruptcy, suffered the filing of any involuntary petition in bankruptcy by
its creditors, filed or suffered the filing of an insolvency or reorganization
petition, otherwise instituted any insolvency proceedings or sought any relief
under any laws relating to the relief from debts or the protection of debtors
generally, (iii) suffered the appointment of a custodian, receiver,
administrator, trustee or similar officer, or a secured party, to take
possession or control of, or the attachment or other judicial seizure of, any
or all of its assets or revenues; or (iv) taken any other actions, and no
other actions or steps have been taken or legal proceedings been started or
threatened against such Person, for its winding-up, dissolution, administration
or reorganization or for the appointment of a custodian, receiver, administrator,
liquidator, trustee or similar officer of it or of any or all of its assets or
revenues.  For purposes of this
definition (A) “present fair market value”, “present fair saleable value”
and “liabilities” (including liabilities contingent or otherwise) have the
meanings assigned to such terms under applicable federal and state Laws
governing determination of the insolvency of debtors, (B) “debt”
means liability on a “claim”, and (C) “claim” means any (x) right
to payment, whether or not such a right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured or (y) right to an equitable remedy
for breach of performance if such breach gives rise to a right to payment,
whether or not such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured or unmatured, disputed, undisputed, secured or unsecured.


 


5

















 


“Stock
Incentive Plans” means the Bemis Company, Inc. 1994 Stock Incentive
Plan, amended and restated as of August 4, 1999, the Bemis Company, Inc.
2001 Stock Incentive Plan, amended and restated as of January 1, 2008, the
Bemis Company, Inc. 2007 Stock Incentive Plan, amended and restated as of January 1,
2008, and the Bemis Investment Incentive Plan, amended and restated as of January 1,
2006.


 


“Subsidiary”
of a Person means (i) any corporation more than 50% of the outstanding
securities having ordinary voting power of which shall at the time be owned or
controlled, directly or indirectly, by such Person or by one or more of its
Subsidiaries or by such Person and one or more of its Subsidiaries, or (ii) any
partnership, limited liability company, association, joint venture or similar
business organization more than 50% of the ownership interests having ordinary
voting power of which shall at the time be so owned or controlled.


 


“Tax
Returns” means any report, return, declaration, claim for refund, or
information return or statement related to Taxes, including any schedule or
attachment thereto, and including any amendment thereof.


 


“Taxes”
means all taxes, levies, duties, imposts, charges and withholdings having the
character of taxation, whether of the United States or elsewhere, imposed by any
national, state, federal, cantonal, municipal or local government or any other
governmental or regulatory authority, body or instrumentality, including taxes
on gross or net income, profits or gains, taxes on receipts, sales, use,
occupation, franchise, transfer, value added, real property, environmental
(including taxes imposed under Section 59A of the Code), withholding and
personal property and social security and all other employment related taxes,
together with all penalties, charges, additions to tax and interest relating to
any of them, regardless of whether the liability arises as a result of
membership of a consolidated, combined, unitary or other group, by contractual
obligation or otherwise.


 


“Transaction
Agreement” has the meaning set forth in the Recitals of this Agreement.


 


SECTION 1.02.                Interpretation and Rules of
Construction.  In this Agreement,
except to the extent otherwise provided or that the context otherwise requires:


 


(a)         when
a reference is made in this Agreement to an Article, Section, Exhibit or
Schedule, such reference is to an Article or Section of, or an Exhibit or
Schedule to, this Agreement unless otherwise indicated;


 


(b)        the
table of contents and headings for this Agreement are for reference purposes
only and do not affect in any way the meaning or interpretation of this
Agreement;


 


6
















 


(c)                          whenever the words “include,” “includes”
or “including” are used in this Agreement, they are deemed to be followed by
the words “without limitation”;


 


(d)                         the words “hereof,” “herein” and “hereunder”
and words of similar import, when used in this Agreement, refer to this
Agreement as a whole and not to any particular provision of this Agreement;


 


(e)                          all terms defined in this Agreement have
the defined meanings when used in any certificate or other document made or
delivered pursuant hereto, unless otherwise defined therein;


 


(f)                            the definitions contained in this
Agreement are applicable to the singular as well as the plural forms of such
terms;


 


(g)                         any Law defined or referred to herein or
in any agreement or instrument that is referred to herein means such Law or
statute as from time to time amended, modified or supplemented, including by
succession of comparable successor Laws;


 


(h)                         references to a Person are also to its
successors and permitted assigns;


 


(i)                             the use of “or” is not intended to be
exclusive unless expressly indicated otherwise;


 


(j)                             any statement in this Agreement qualified
by the expression so far as the Company is aware or to the best of the Company’s
knowledge or any similar expression shall be deemed to be made on the basis of
the knowledge, as at the date of this Agreement or the Closing Date, as the
case may be, of the “named executive officers” (as defined in the Company’s
proxy statement for its annual meeting of shareholders held on May 7,
2009, as filed with the SEC), such knowledge being their actual knowledge and
the knowledge they should have, having made due and careful enquiry of the
relevant subject matter;


 


(k)                          References to any indemnity or covenant
to pay (the “Payment Obligation”) being given on an after-tax basis means
that in calculating the amount payable pursuant to such indemnity or covenant
to pay (the “Payment”) if such amount (or any part thereof) is
chargeable to any tax (or would be so chargeable but for any relief available
against the amount otherwise so chargeable (where relief includes any losses,
credits, deductions, rebates or other reliefs available to the payee or any of
its Affiliates, as the case maybe)), the amount so payable shall be increased
so as to ensure that, after taking into account the tax chargeable (or which
would be chargeable) on such amount (including any increased or additional
amount) and any tax credit, repayment or other tax benefit which is available
to the indemnified party or person entitled to receive the Payment (in either
case the “Recipient”) solely as a result of the matter giving rise to
the Payment Obligation or as a result of receiving the Payment (which tax and
tax credit, 


 


7

















 


repayment or other tax benefit is to be determined by the Recipient
acting in good faith and is to be certified as such to the party making the
Payment), the Recipient is in the same position as it would have been in if the
matter giving rise to the Payment Obligation had not occurred, provided that if a Recipient receives a payment which has
been increased to take account of any tax chargeable or which would have been
chargeable and the Recipient subsequently receives and retains a tax credit,
repayment or other tax benefit arising solely as a result of the matter giving
rise to the Payment Obligation or receipt of the Payment, the Recipient shall
repay such amount (if any) as will leave it in the same position as it would
have been in had the matter giving rise to the Payment Obligation not occurred;
and


 


(l)                             all terms used herein but not otherwise
defined shall have the meanings set forth in the Transaction Agreement.


 


ARTICLE II


 


PURCHASE AND SALE


 


SECTION 2.01.                 Purchase and Sale of the Shares. 
Upon the terms and subject to the conditions of this Agreement, at the
Closing, contemporaneously with the Closing as defined in the Transaction
Agreement, the Company shall issue, sell and deliver to the Investor, and the
Investor shall accept and acquire from the Company, a number of shares of
Common Stock determined in accordance with Section 2.02 (such shares of Common
Stock purchased pursuant to this Agreement, the “Shares”) as
satisfaction in part of the consideration payable to the Investor in respect of
the PPPI Sale Business in accordance with the Transaction Agreement.


 


SECTION 2.02.                 Issuance Amount.


 


(a)                                  Number of Shares. 
The number of shares of Common Stock to be issued pursuant to Section 2.01
shall be a number equal to the Share Consideration divided
by the Price Per Share, each as defined below.


 


(b)                                 Share Consideration. 
The consideration for the Shares (the “Share Consideration”)
shall be the amount specified in a notice delivered by the Company to the
Investor in accordance with Article 2.15(a) of the Transaction
Agreement, provided that such amount shall in no case exceed the Equity
Commitment and shall be subject to downward adjustment as set forth in
paragraph (d) below.  The Share
Consideration (i) reflects the portion of the consideration payable by the
Company for the PPPI Sale Business to be paid in kind in Shares in accordance
with the Transaction Agreement and (ii) will be paid in kind by the
transfer by the Investor of all or part of the PPPI Sale Business in accordance
with the Transaction Agreement.


 


(c)                                  Price Per Share. 
The price per Share (the “Price Per Share”) shall be an amount
equal to 95% of the volume-weighted average of the per share prices of the
Company’s Common Stock as reported on the New York Stock Exchange, Inc.
(the 


 


8

















 


“NYSE”)
composite transactions reporting system (as reported in the Eastern Edition of
The Wall Street Journal or, if not reported thereby, another authoritative
source) for ten consecutive trading days ending at the close of the trading day
prior to the Closing Date (the “VWAP”).


 


(d)                                 If the number of shares of Common Stock
calculated as set forth above exceeds 19.9% of the number of issued and
outstanding shares of Common Stock of the Company immediately prior to such
issuance, the Investor and the Company may mutually agree to reduce the Share
Consideration to yield a number of shares of Common Stock, calculated in
accordance with paragraph (a) above, constituting 19.9% of the number of
shares of Common Stock of the Company immediately prior to such issuance.  Any reduction in the Share Consideration and
number of shares by the Investor pursuant to this Section 2.02(d) shall
not reduce the Initial Asset Consideration, Initial Share Consideration,
Cross-Group Loan Purchase Price or Final Consideration (each as defined in the
Transaction Agreement) or any other consideration or amount payable by the
Company pursuant to the Transaction Agreement.


 


SECTION 2.03.                                              Closing.  Subject to
the terms and conditions of this Agreement, the issuance, sale and purchase of
the Shares contemplated by this Agreement shall take place at a closing (the “Closing”)
to occur simultaneously with the Closing under the Transaction Agreement on the
Closing Date; provided that the Closing shall
occur no later than the Longstop Date.


 


SECTION 2.04.                                              Closing Deliveries by the Company. 
At the Closing, the Company shall deliver or cause to be delivered to
the Investor:


 


(a)                          stock certificates evidencing the Shares
registered in the name of the Investor (or such other Affiliate of the Investor
as the Investor shall designate), which stock certificates may have a legend as
provided in Section 5.06;


 


(b)                         executed counterpart of the Registration
Rights Agreement;


 


(c)                          a cross-receipt for the Share
Consideration in exchange for the Shares;


 


(d)                         evidence of the amendment to, termination
or expiration of the Rights Agreement;


 


(e)                          a true and complete copy, certified by
the Secretary or an Assistant Secretary of the Company, of the resolutions duly
and validly adopted by the Board of Directors of the Company (the “Board”)
evidencing its authorization of the execution and delivery of this Agreement,
the Registration Rights Agreement and the consummation of the transactions
contemplated hereby and thereby;


 


(f)                            a certificate of good standing issued by the
Secretary of State of the State of Missouri certifying that the Company has
legal existence and is in good standing;


 


9

















 


(g)                         a legal opinion from the Company’s
counsel in a form and substance reasonably satisfactory to the Investor
addressing the items identified in Exhibit B hereto; and


 


(h)                         a certificate of a duly authorized
officer of the Company certifying as to the matters set forth in Section 6.02(b).


 


SECTION 2.05.                                              Closing Deliveries by the Investor. 
At the Closing, the Investor shall deliver or cause to be delivered to
the Company:


 


(a)                          all Material Deliverables (as defined in
the Transaction Agreement) with respect to the PPPI Sale Business in accordance
with the Transaction Agreement as part of the Closing (as defined therein);


 


(b)                         executed counterpart of the Registration
Rights Agreement;


 


(c)                          a cross-receipt for the Share
Consideration in exchange for the Shares; and


 


(d)                         a true and complete copy, certified by
the Secretary or an Assistant Secretary of the Investor, of the resolutions
duly and validly adopted by the Board of Directors of the Investor evidencing
its authorization of the execution and delivery of this Agreement, the
Registration Rights Agreement and the consummation of the transactions
contemplated hereby and thereby.


 


ARTICLE III


 


REPRESENTATIONS AND WARRANTIES 

OF THE COMPANY


 


As an
inducement to the Investor to enter into this Agreement, the Company hereby
represents and warrants to the Investor, as of the date hereof and as of the
Closing Date or, if a representation or warranty is made as of a specified
date, as of such date, as follows:


 


SECTION 3.01.                                              Organization and Authority of the
Company.


 


(a)                          The Company and each Material Subsidiary
is duly organized, validly existing, and in good standing under the Laws of the
jurisdiction of its formation, has all power and authority to carry on its
business as now being conducted and to own its properties and is duly licensed
or qualified and in good standing in each other jurisdiction in which its
properties are located or in which failure to qualify would materially and
adversely affect the conduct of its business.


 


10

















 


(b)                         The execution, delivery and performance
by the Company of this Agreement and the Registration Rights Agreement are
within the Company’s corporate power and have been duly authorized by all
necessary corporate action.


 


(c)                          This Agreement and upon its execution,
the Registration Rights Agreement, constitute valid and binding obligations of
the Company, enforceable against the Company in accordance with their terms,
except to the extent enforceability may be limited by any Enforcement
Limitation.


 


SECTION 3.02.                                              Capitalization; Ownership of Shares.


 


(a)                          The authorized capital stock of the
Company consists of 500,000,000 shares of Common Stock and 2,000,000 shares of
preferred stock, par value $1.00 per share (“Preferred Stock”).  As of May 8, 2009, 99,923,718 shares of
Common Stock were issued and outstanding, all of which are validly issued,
fully paid and nonassessable and were not issued in violation of any preemptive
rights.  Except for issuances in the
ordinary course of business consistent with past practice pursuant to the Stock
Incentive Plans, (i) since May 8, 2009, the Company has not issued or
sold any shares of Common Stock and (ii) there are no options, warrants,
convertible securities or other rights, agreements, arrangements or commitments
relating to the Shares or obligating either the Company or any Subsidiary to
issue, sell or purchase any shares of Common Stock, or any other interest in,
the Company.  There are no shares of
Preferred Stock issued or outstanding, and none are reserved for issuance other
than shares reserved for issuance pursuant to the Rights Agreement.


 


(b)                         The issuance of the Shares has been duly
authorized by all necessary corporate action on the part of the Company, and no
approval of the Company’s stockholders is required under any Law or under the
regulations and policies of any securities exchange in connection therewith.
Upon the issuance and sale of the Shares, such Shares will (A) be duly
authorized by all necessary corporate action on the part of the Company, (B) be
validly issued, fully paid and nonassessable, and (C) not have been issued
in violation of any preemptive or other similar right.  There are no voting trusts, stockholder
agreements, proxies or other agreements or understandings in effect with
respect to the voting or transfer of any of the Shares.


 


SECTION 3.03.                                              No Conflict. 
As of the date hereof (assuming that any applicable waiting period under
the HSR Act has expired or been terminated) the execution and delivery of this
Agreement and the Registration Rights Agreement by the Company do not, and as
of the Closing Date the execution, delivery and performance of this Agreement
and the Registration Rights Agreement by the Company do not and will not
contravene, or constitute a default under, any provision of applicable Law, any
Material Contract or the certificate or articles of incorporation or by-laws of
the Company, or any judgment, order, decree, agreement or instrument binding on
the Company or its Assets.


 


11

















 


SECTION 3.04.                                              Governmental and Stockholder Consents and
Approvals.  Assuming that any applicable waiting period
under the HSR Act has expired or been terminated, no approval, consent or
authorization of or filing or registration with any Governmental Authority is
necessary for the execution or delivery by the Company of this Agreement or the
Registration Rights Agreement or for the performance by the Company of any of
the terms or conditions hereof or thereof, except for such approvals, consents
or authorizations (copies of which have been or will be delivered to the Investor)
as have been obtained or will be obtained on or before the Closing Date.  As of the Closing Date all approvals,
consents and authorizations of and all filings and registrations with any
Governmental Authority necessary for the execution, delivery and performance by
the Company of any of the terms or conditions of this Agreement or the
Registration Rights Agreement will have been obtained or made and will be in
full force and effect, other than such filings and registrations that the
Registration Rights Agreement expressly contemplates will occur after the
Closing Date.  No approval by the holders
of any class or series of the Company’s capital stock is necessary for such
execution, delivery or performance.


 


SECTION 3.05.                                              SEC Reports; Sarbanes-Oxley Act.


 


(a)                          Since January 1, 2008, the Company
has timely filed all documents required to be filed with the SEC pursuant to
Sections 13(a), 14(a) or 15(d) of the Exchange Act (the “SEC
Reports”).  The SEC Reports, when
they were filed with the SEC, conformed in all material respects to the
requirements of the Exchange Act and the rules and regulations of the SEC
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make such statements, in the light of the circumstances in
which they were made, not misleading.


 


(b)                         Each of the consolidated financial
statements (including, in each case, any notes thereto) contained in the SEC
Reports was prepared in accordance with GAAP applied on a basis consistent with
the past practices of the Company and its Subsidiaries (except as may be
indicated in such statements or the notes thereto) and each fairly presents, in
all material respects, the consolidated financial position, results of
operations and cash flows of the Company and its consolidated subsidiaries as
of the respective dates thereof and for the respective periods indicated
therein except as otherwise noted therein (including, in each case, in any notes
thereto, and subject, in the case of unaudited statements, to normal period-end
adjustments).


 


(c)                          The records, systems, controls, data and
information of the Company and its Subsidiaries are recorded, stored,
maintained and operated under means (including any electronic, mechanical or
photographic process, whether computerized or not) that are under the exclusive
ownership and direct control of the Company or the Subsidiaries or their
accountants (including all means of access thereto and therefrom). The Company (i) has
implemented and maintains disclosure controls and procedures (as defined in Rule 13a-15(e) under
the Exchange Act) to ensure that material information 


 


12

















 


relating to the Company, including its Subsidiaries, is made known to
the chief executive officer and the chief financial officer of the Company by
others within those entities, and (ii) has disclosed, based on its most
recent evaluation prior to the date on which this representation is made or
repeated, to the Company’s outside auditors and the audit committee of the
Company’s board of directors (A) any significant deficiencies and material
weaknesses in the design or operation of internal controls over financial
reporting (as defined in Rule 13a-15(f) under the Exchange Act) that,
individually or in the aggregate, could reasonably be expected to adversely
affect the Company’s ability to record, process, summarize and report financial
information and (B) any fraud, whether or not material, that involves
management or other employees who have a significant role in the Company’s
internal controls over financial reporting. To the knowledge of the Company,
there is no reason that its outside auditors and its chief executive officer
and chief financial officer will not be able to give the certifications and
attestations required pursuant to the rules and regulations adopted
pursuant to Section 404 of the Sarbanes-Oxley Act of 2002, without
qualification, when next due.


 


(d)                         The Company maintains a standard system
of accounting established and administered in accordance with GAAP in all
material respects.  The Company and its
Subsidiaries maintain a system of internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are executed in
accordance with management’s general or specific authorizations, (ii) transactions
are recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain asset accountability, (iii) access to
assets is permitted only in accordance with management’s general or specific
authorization, and (iv) the recorded accountability for assets is compared
with the existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.


 


SECTION 3.06.                                              Litigation. 
There are no Actions pending or, to the knowledge of the Company,
threatened against or affecting the Company or any Subsidiary by, in or before
any Governmental Authority which could reasonably be expected to have a Material
Adverse Effect.  Other than any liability
disclosed in the SEC Reports, neither the Company nor any Subsidiary has any
contingent liabilities which are material to the Company and its Subsidiaries
taken as a whole.


 


SECTION 3.07.                                              Compliance with Laws; Permits.


 


(a)                          The Company and each of its Material
Subsidiaries has conducted its businesses in compliance with all applicable
Laws, except where (i) the failure to be in compliance could not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect or (ii) the necessity of compliance, or the failure to
comply, therewith is being contested in good faith by appropriate proceedings.


 


(b)                         The Company and each of its Material
Subsidiaries have all permits, licenses, 
authorizations, orders and approvals of, and have made all filings,
applications and registrations with, any Governmental Authorities that are
required in order to carry 


 


13

















 


on their businesses as presently conducted, except where the failure to
have such permits, licenses, authorizations, orders and approvals or the
failure to make such filings, applications and registrations, individually or
in the aggregate, could not reasonably be expected to have a Material Adverse
Effect; and all such permits, licenses, certificates of authority, orders and
approvals are in full force and effect and, to the knowledge of the Company, no
suspension or cancellation of any of them is threatened, and all such filings,
applications and registrations are current, except where such absence,
suspension or cancellation, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.


 


(c)                          Each Benefit Plan has been operated in
all material respects in accordance with its terms and the requirements of all
applicable Laws.  The Company has
performed all material obligations required to be performed by it under, is not
in any material respect in default under or in material violation of, and, to
the Company’s knowledge, there is no material default or violation by any party
to, any Benefit Plan.  No Action is
pending or, to the Company’s knowledge, threatened with respect to any Benefit
Plan (other than claims for benefits in the ordinary course of business) and,
to the knowledge of the Company, no fact or event exists that could give rise
to any such Action.


 


(d)                         The Company has fulfilled its obligations
under the minimum funding standards of ERISA and the Code with respect to each
Benefit Plan and is in compliance in all material respects with the presently
applicable provisions of ERISA and the Code, and has not incurred liabilities
which are due and payable aggregating in excess of $5,000,000 to a Benefit Plan
under Title IV of ERISA.


 


SECTION 3.08.                                              Environmental Matters. 
In the ordinary course of its business, the Company conducts an ongoing
review of the effect of Environmental Laws on the business, operations and
properties of the Company and its Subsidiaries, in the course of which it
identifies and evaluates associated liabilities and costs (including any
capital or operating expenditures required for clean-up or closure of
properties presently or previously owned, any capital or operating expenditures
required to achieve or maintain compliance with environmental protection
standards imposed by Law or as a condition of any license, permit or contract,
any related constraints on operating activities, including any periodic or
permanent shutdown of any facility or reduction in the level of or change in the
nature of operations conducted thereat, any costs or liabilities in connection
with off-site disposal of wastes or Hazardous Substances, and any actual or
potential liabilities to third parties, including employees, and any related
costs and expenses).  On the basis of
such review, the Company has reasonably concluded that such associated
liabilities and costs, including the costs of compliance with Environmental
Laws, will not have a Material Adverse Effect.


 


SECTION 3.09.                                              Taxes.  (i) All
Tax Returns that are required to be filed on or before the Closing Date by or
with respect to the Company and each of its Subsidiaries have been or will be
timely filed on or before the Closing Date, and all such 


 


14

















 


Tax Returns are or will be true and complete in all
material respects; (ii) all Taxes shown to be due on the Tax Returns
referred to in clause (i) have been or will be timely paid in full; (iii) all
material deficiencies asserted or material assessments made as a result of
examinations by the Internal Revenue Service or other tax authorities have been
paid in full or (a) are being contested in good faith and (b) have
been properly reflected in accordance with U.S. GAAP in the SEC Reports; (iv) no
examination of any of the Tax Returns referred to in clause (i) are
currently pending; (v) no outstanding waivers of statutes of limitation
have been given with respect to any Taxes of the Company or any of its
Subsidiaries; (vi) the Company will not be required, as a result of (A) a
change in accounting method for a Tax period beginning on or before Closing, to
include any adjustment under Section 481(c) of the Code (or any
similar provision of state, local, or foreign law) in taxable income for any
Tax period beginning on or after the Closing Date, or (B) any “closing
agreement” as described in Section 7121 of the Code (or any similar
provision of state, local, or foreign law), to include any item of income in or
exclude any item of deduction from any Tax period beginning on or after the
Closing; (vii) there are no Liens on any of the assets of the Company or
any of its Subsidiaries that arose in connection with any failure (or alleged
failure) to pay any Tax; (viii) the Company and its Subsidiaries have
never been members of an affiliated, combined, consolidated or unitary Tax
group for purposes of filing any Tax Return, other than, for purposes of filing
consolidated U.S. Federal income tax returns, a group of which the Company was
the common parent; and (ix) no closing agreements, private letter rulings,
technical advance memoranda or similar agreement or rulings have been entered
into or issued by any taxing authority with respect to the Company or any of
its Subsidiaries.


 


SECTION 3.10.                                              No Material Adverse Change. 
Since March 31, 2009, and except as disclosed in the Company’s
Annual Report on Form 10-K for the year ended December 31, 2008 or
any Exchange Act filings made by the Company since December 31, 2008 and
except as contemplated by the Transaction Agreement, no event, circumstance or
change has occurred that has caused or evidences, either in any case or in the
aggregate, a Material Adverse Effect with respect to the Company and its
Subsidiaries, taken as a whole.


 


SECTION 3.11.                                              Investment Company Act. 
Neither the Company nor any Subsidiary is an “investment company” or a
company “controlled” by an “investment company”, within the meaning of the
Investment Company Act of 1940.


 


SECTION 3.12.                                              Solvency.  The Company
and its Subsidiaries, on a consolidated basis, are Solvent.


 


SECTION 3.13.                                              NYSE Listing. 
The outstanding shares of Common Stock are listed on the NYSE and the
Shares will, upon issuance, be listed on the NYSE.


 


SECTION 3.14.                                              Share Register. 
At all material times, the register of ownership of the Shares of the
Company is and will be situated in the United States.


 


15

















 


ARTICLE IV


 


REPRESENTATIONS AND WARRANTIES 

OF THE INVESTOR


 


As an
inducement to the Company to enter into the Agreement, the Investor hereby
represents and warrants to the Company as of the date hereof as follows:


 


SECTION 4.01.                                              Organization and Authority of the
Investor.


 


(a)                          The Investor is duly organized, validly
existing, and in good standing under the Laws of the jurisdiction of its formation,
has all power and authority to carry on its business as now being conducted and
to own its properties and is duly licensed or qualified and in good standing in
each other jurisdiction in which its properties are located or in which failure
to qualify would materially and adversely affect the conduct of its business.


 


(b)                         The execution, delivery and performance
by the Investor of this Agreement and the Registration Rights Agreement are
within the Investor’s corporate power and have been duly authorized by all
necessary corporate action.


 


(c)                          This Agreement and upon its execution,
the Registration Rights Agreement, constitute valid and binding obligations of
the Investor, enforceable against the Investor in accordance with their terms,
except to the extent enforceability may be limited by any Enforcement
Limitation.


 


SECTION 4.02.                                              No Conflict. 
As of the date hereof (assuming that any applicable waiting period under
the HSR Act has expired or been terminated) the execution and delivery of this
Agreement and the Registration Rights Agreement by the Investor do not, and as
of the Closing Date the execution, delivery and performance of this Agreement
and the Registration Rights Agreement by the Investor do not and will not
contravene, or constitute a default under, any provision of applicable Law, any
Material Contract or the certificate or articles of incorporation or by-laws of
the Investor, or any judgment, order, decree, agreement or instrument binding
on the Investor or its Assets.


 


SECTION 4.03.                                              Governmental Consents and Approvals. 
Assuming that any applicable waiting period under the HSR Act has
expired or been terminated, no approval, consent or authorization of or filing
or registration with any Governmental Authority or body is necessary for the
execution, delivery or performance by the Investor of this Agreement or the
Registration Rights Agreement or for the performance by the Investor of any of
the terms or conditions hereof or thereof, except for such approvals, consents
or authorizations (copies of which have been delivered to the Company) as have
been obtained or will be obtained on or before the Closing Date.  As of the Closing Date all approvals,
consents and authorizations of and all filings and representations with any 


 


16

















 


Governmental Authority necessary for the execution,
delivery and performance by the Investor of any of the terms or conditions of
this Agreement or the Registration Rights Agreement will have been obtained or
made and will be in full force and effect.


 


SECTION 4.04.                                              Securities, Investment, Accredited
Investor.


 


(a)                          The Investor acknowledges that the Shares
have not been, and will not be, except pursuant to this Agreement and the
Registration Rights Agreement, registered under the Securities Act or under any
state securities laws, are being offered and sold in reliance upon federal and
state exemptions for transactions not involving any public offering and will
contain the legends restricting transfer set forth in Section 5.06 of this
Agreement.


 


(b)                         The Investor is acquiring the Shares
hereunder, solely for investment, solely for Investor’s own account and not
with a view to, or for resale in connection with, any distribution (other than
a transfer to an Affiliate in accordance with and subject to the requirements
of Section 5.13 or distribution pursuant to an effective registration
statement as contemplated by this Agreement and the Registration Rights
Agreement) or other disposition thereof in violation of the Securities Act or
any applicable state securities law.


 


(c)                          The Investor has received certain
information concerning the Company and has had the opportunity to obtain
additional information as desired in order to evaluate the merits and the risks
inherent in holding the Shares. Investor is able to bear the economic risk and
lack of liquidity inherent in holding the Shares.


 


(d)                         The Investor is an “accredited investor”
as defined in Rule 501 promulgated under the Securities Act.


 


(e)                          Investor has such knowledge and experience
in financial and business matters as to be capable of evaluating the merits and
risks of an investment in the Shares and has had access to sufficient
information regarding the Company and its business and condition to make an
informed decision to purchase the Shares.


 


SECTION 4.05.                                              Investor’s Independent Investigation. 
The Investor has had access to, and is relying exclusively on, such
financial and other information (including the business, financial condition,
prospects, creditworthiness, status and affairs of the Company) concerning the
Company and the Shares including, without limitation, the information noted
above, as it has deemed necessary in connection with its decision to take up
the Shares, and its investment decision is based upon its own judgment, due
diligence and analysis.  In connection
with the foregoing, the Investor and its representatives acknowledge that they
have received information containing “forward-looking statements” (as defined
in the Private Securities Litigation Reform Act of 1995, and within the meaning
of Section 27A of the Securities Act and Section 21E of the Exchange
Act).  There are uncertainties inherent
in those forward-looking statements, and the Investor is familiar with such
uncertainties.


 


17
















 


ARTICLE V


 


CERTAIN ADDITIONAL AGREEMENTS OF THE PARTIES


 


SECTION 5.01.               Conduct of Business Prior to the Closing. 
The Company covenants and agrees that between the date hereof and the
Closing, the Company shall, and shall cause each Subsidiary to, conduct its
business in the ordinary course in all material respects.  The Company covenants and agrees that,
between the date hereof and the Closing, without the prior written consent of
the Investor, neither the Company nor any Subsidiary will:


 


(a)         adopt
or propose any change to its certificate of incorporation or bylaws (or similar
organizational documents), except for the termination of the Rights Agreement
in accordance with Section 5.16;


 


(b)        other
than pursuant to the Transaction Agreement, acquire a material amount of assets
from any other Person outside of the ordinary course of business or merge or
consolidate with any other Person;


 


(c)         sell,
lease, license, abandon, let lapse or otherwise dispose of any material assets
or property or any Intellectual Property (whether or not material) except (i) pursuant
to existing contracts or commitments or (ii) in the ordinary course of
business;


 


(d)        issue
or sell any shares of Common Stock or any securities convertible into or
exchangeable for shares of Common Stock, or any warrants, rights or options to
acquire shares of Common Stock or enter into any transaction having an economic
effect similar to that of a sale of shares of Common Stock other than (i) grants
or sales of Common Stock, restricted stock units, or options to purchase Common
Stock pursuant to the Stock Incentive Plans in the ordinary course of business
consistent with past practice or in connection with any new hires consistent
with past practice, (ii) shares of Common Stock issued upon exercise or vesting
of employee stock options or restricted stock units that are outstanding at the
date hereof or upon exercise or vesting of employee stock options or restricted
stock units that are granted after the date hereof pursuant to the Stock
Incentive Plans in the ordinary course of business consistent with past
practice, (iii) shares of Common Stock issued upon conversion of any
convertible securities outstanding as of the date hereof or (iv) shares of
Common Stock issued pursuant to Section 5.11 of this Agreement;


 


(e)         (i) make
or change any Tax election, (ii) change any annual tax accounting period, (iii) adopt
or change any method of tax accounting except as required by Applicable Law, (iv) materially
amend any Tax Returns, (v) enter into any material closing agreement, (vi) settle
any material Tax claim, audit or assessment, (vii) surrender any right to
claim a material Tax refund, offset or other reduction in Tax liability; or


 


18

















 


(f)         agree
to take any of the actions specified in Sections 5.01(a)-(e), except as
contemplated by this Agreement and the Registration Rights Agreement.


 


SECTION 5.02.               Access to Information.  From the date
of this Agreement and through the Closing, upon reasonable notice, the Company
shall cause its officers, directors, employees, agents, representatives,
accountants and counsel, and shall cause its Subsidiaries and each of its
Subsidiaries’ officers, directors, employees, agents, representatives,
accountants and counsel to: (a) afford the officers, employees, agents,
accountants, counsel, and representatives of the Investor reasonable access,
during normal business hours, to the offices, properties, other facilities,
books and records of the Company and each of its Subsidiaries and to those
officers, directors, employees, agents, accountants and counsel of the Company
and of each of its Subsidiaries who have any knowledge relating to the Company,
or any of its Subsidiaries and (b) furnish to the officers, employees,
agents, accountants, counsel and representatives of the Investor such
additional financial and operating data and other information regarding the
assets, properties, liabilities and goodwill of the Company, its Subsidiaries
and their respective businesses as the Investor may from time to time
reasonably request. Notwithstanding anything to the contrary in this Agreement,
the Company shall not be required to disclose any information to the Investor
if such disclosure would, in the Company’s reasonable discretion, (i) cause
significant competitive harm to its business and the business of its
Subsidiaries if the transactions contemplated hereby are not consummated, (ii) jeopardize
any attorney-client or other legal privilege or (iii) contravene any
applicable Laws, fiduciary duty or binding agreement entered into prior to the
date hereof.


 


SECTION 5.03.               Confidentiality.  All
information furnished to a party or its advisor by a party or its advisor in
connection with the transactions contemplated hereby shall be subject to, and
the recipient of such information shall hold all such information in confidence
in accordance with, the provisions of the Confidentiality Agreement.


 


SECTION 5.04.               Further Action; HSR Notification.


 


(a)         The
Investor shall use its reasonable best efforts to take, or cause to be taken,
all appropriate action to do, or cause to be done, all things necessary, proper
or advisable under applicable Law, and to execute and deliver such documents
and other papers as may be required to carry out the provisions of this
Agreement or otherwise to consummate and make effective the transactions
contemplated by this Agreement as promptly as practicable, including (i) obtaining
from Governmental Authorities all consents, approvals, authorizations,
qualifications and orders as are necessary for the consummation of the
transactions contemplated hereby and (ii) promptly making all necessary
filings, and thereafter making any other required submissions, with respect to
this Agreement required under applicable Law. 
Notwithstanding anything in this Agreement or the Transaction Agreement
to the contrary, in no event will the Investor or its Affiliates be obligated
to propose or agree to accept any undertaking or condition, to enter into any
consent decree, to make any divestiture, or take any other action that, in the 


 


19

















 


reasonable judgment of the Investor could be expected to limit the
right of the Investor or its Affiliates to own or operate all or any portion of
the businesses or assets it or its Affiliates will continue to own following
the closing of the transactions contemplated by the Transaction Agreement.


 


(b)        Without
limiting the generality of the foregoing, the Investor shall comply with the
provisions of Article 4.5(b) of the Transaction Agreement as if such
provisions applied in connection with the transactions contemplated both by the
Transaction Agreement and by this Agreement.


 


(c)         The
Company shall comply with the provisions of Article 4.5(a) of the
Transaction Agreement as if such provisions applied in connection with the
transactions contemplated both by the Transaction Agreement and by this
Agreement.


 


SECTION 5.05.               Notice of Developments.  Prior to the
Closing, the Company shall promptly notify the Investor in writing of all
events, circumstances, facts and occurrences arising subsequent to the date of
this Agreement which could result in any breach of a representation or warranty
or covenant of the Company in this Agreement or which could have the effect of
making any representation or warranty of the Company in this Agreement untrue
or incorrect.


 


SECTION 5.06.               Legends.


 


(a)         Certificates
for the Shares shall bear a legend in substantially the following form:


 


“NO SALE, OFFER TO SELL, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THE
SHARES REPRESENTED BY THIS CERTIFICATE SHALL BE MADE UNLESS A REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND APPLICABLE STATE
SECURITIES LAWS WITH RESPECT TO SUCH SHARES IS THEN IN EFFECT OR PURSUANT TO
RULE 144 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNLESS THE HOLDER
OBTAINS AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH
DISPOSITION MAY BE EFFECTED WITHOUT VIOLATION OF THE SECURITIES ACT OF
1933, AS AMENDED, AND APPLICABLE STATE SECURITIES LAWS.


 


THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
RESTRICTIONS SET FORTH IN THE SHARE PURCHASE AGREEMENT DATED JULY 5, 2009 (THE “AGREEMENT”).  THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT
BE SOLD OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE AGREEMENT.  ANY SALE OR OTHER TRANSFER NOT IN COMPLIANCE
WITH THE AGREEMENT WILL BE NULL AND VOID.”


 


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(b)        Any
holder of Shares may request the Company to remove any or all of the legends
described in this Section 5.06 from the certificates evidencing such
Shares by submitting to the Company such certificates, together with evidence
reasonably satisfactory to the Company to the effect that (i) such Shares
are eligible for sale or have been sold pursuant to Rule 144 under the
Securities Act or (ii) such legend or legends are no longer required under
the Securities Act.


 


SECTION 5.07.               Lost, Stolen, Destroyed or Mutilated Securities. 
Upon receipt of evidence reasonably satisfactory to the Company of the
loss, theft, destruction or mutilation of any certificate for any security of
the Company and, in the case of loss, theft or destruction, upon delivery of an
undertaking by the holder thereof to indemnify the Company (and, if requested
by the Company, the delivery of an indemnity bond sufficient in the judgment of
the Company to protect the Company from any loss it may suffer if a certificate
is replaced), or, in the case of mutilation, upon surrender and cancellation
thereof, the Company will issue a new certificate for an equivalent number of
shares or another security of like tenor, as the case may be.


 


SECTION 5.08.               NYSE Listing.  The Company
shall use its reasonable best efforts to cause the Shares to be approved for
listing on the NYSE, subject to official notice of issuance, prior to the
Closing.


 


SECTION 5.09.               Registration and Registered Offerings.


 


(a)         Subject
to the provisions of the Registration Rights Agreement, the Company shall file
an automatically effective WKSI Shelf Registration Statement on Form S-3
(the “Registration Statement”) covering the shares of Common Stock as
soon as practicable but no later than 10 calendar days from the Closing, for
resale by the Investor, subject only to the selling restrictions set forth in
the Registration Rights Agreement and in Section 5.13 of this
Agreement.  The Company shall pay the
registration fees and the costs of providing customary comfort letters and
opinions of the Company’s counsel.


 


(b)        In the
event of any sale pursuant to the Registration Statement by means of an
underwritten offering, the Investor shall select the lead book-running manager
for such offering, and agrees that the Company shall have the right, if it so
chooses, to name a joint active book-running manager reasonably acceptable to
the Investor.  The Company and the
Investor (acting reasonably and in consultation with the active book-running
managers) shall identify and assign roles to other underwriters, allocate
shares within the underwriting syndicate and allocate the elements of the
underwriting spread.  Distribution of the
offering shall be in the discretion of the active book-running manager or
managers, except that the underwriters shall agree with the Company and the
Investor to use reasonable efforts to place the shares in a broad distribution,
subject to the Company’s consent to exceptions (not to be unreasonably withheld
or delayed).  The Company shall pay or
reimburse any underwriting discounts or commissions (except that the Company
shall not be required to pay or reimburse any 


 


21

















 


underwriting discounts or commissions allocated to any lead
book-running manager selected by the Investor) and pay its own costs and
expenses, including fees and expenses of its counsel and accountants.


 


(c)         After
expiration of the Lock-Up Period (as defined below), the Investor shall have “piggy-back”
resale rights in accordance with Section 2(g) of the Registration
Rights Agreement.


 


SECTION 5.10.               Call Provision.  At any time
and from time to time, during the Lock-Up Period (as defined below), the
Company shall have the right, but not the obligation, to purchase from the
Investor or its designee holding the Shares, and the Investor shall have the
obligation, upon the exercise of such right, to procure the sale to the Company
of up to such number of shares of Common Stock as may be purchased by
application of the net proceeds to the Company from a primary offering or
offerings (each a “Primary Offering”) of equity securities of the Company
(the “Call Provision”); provided that (i) any
issuance and sale of equity securities by the Company until the end of the
Lock-Up Period shall be for cash and (ii) in connection with any such
issuance and sale during the Lock-Up Period, the Company shall exercise the
option set forth in this Section and immediately apply any cash received
to repurchase shares from the Investor. 
The purchase price per share shall be: (a) for any repurchase
completed on or before the 45th calendar day following delivery of second
quarter Transferred Business Quarterly Carve-out Accounts (as defined in the
Transaction Agreement), the greater of (1) the Price Per Share (as may be
equitably adjusted to reflect any conversions, reclassifications,
reorganizations, stock dividends, stock splits, reverse splits and similar
events which occur with respect to the Common Stock after the Closing Date) or (2) the
price per share (net of fees, commissions and expenses) realized by the Company
in the Primary Offering; and (b) for any repurchase completed after the
45th calendar day following delivery of second quarter Transferred Business
Quarterly Carve-out Accounts (as defined in the Transaction Agreement), the
greater of (1) the VWAP (as may be equitably adjusted to reflect any
conversions, reclassifications, reorganizations, stock dividends, stock splits,
reverse splits and similar events which occur with respect to the Common Stock
after the Closing Date) or (2) the price per share (net of fees,
commissions and expenses) realized by the Company in the Primary Offering.  For any Primary Offering, the Company shall
determine the pricing and distribution, and underwriting discounts and
commissions for the Primary Offering, and select any underwriters and otherwise
exercise its sole business judgment with regard to the Primary Offering, and
the Company shall not be subject to any duties, express or implied, in favor of
the Investor in its conduct of the Primary Offering.  If the “Use of Proceeds” in the final
prospectus or pricing supplement for the Primary Offering states (and the
Company agrees for the benefit of the Investor) that the net proceeds will
first be used to repurchase shares of Common Stock owned by the Investor before
being applied to any other uses, in full at the purchase price per share
specified above, and such net proceeds are so applied promptly upon receipt
thereof by the Company, then the Investor’s pre-emptive rights provided in Section 5.12
below shall have no application to the Primary Offering.


 


22

















 


SECTION 5.11.               Replacement Equity Financing. 
The Company shall use its reasonable best efforts to obtain as soon as
reasonably practicable replacement equity financing pursuant to this Section 5.11.  At any time prior to the Closing Date, the
Company may issue and sell any securities for cash, provided
that the net proceeds of the sale of any equity securities shall (a) be
earmarked by the Company as funds designated for the Initial Asset
Consideration, Initial Share Consideration, Cross-Group Loan Purchase Price or
Final Consideration (each as defined in the Transaction Agreement) or any other
consideration or amount payable to be paid by the Company pursuant to the
Transaction Agreement and (b) reduce the Investor’s Equity Commitment
hereunder on a dollar-for-dollar basis.


 


SECTION 5.12.               Rights to Purchase Additional Shares of Common Stock.


 


(a)           After Closing and
until the date that the Investor and its Affiliates together cease to own at
least 5% of the outstanding shares of Common Stock of the Company, in the event
that the Company or any of its Subsidiaries proposes to issue or sell shares of
Common Stock, or any securities convertible into or exchangeable for shares of
Common Stock, or any warrants, rights or options to acquire shares of Common
Stock, or to enter into any transaction having an economic effect similar to
that of a sale of shares of Common Stock, in any such case at a price per share
(or implied price per share) lower than the VWAP (as may be equitably adjusted
to reflect any conversions, reclassifications, reorganizations, stock
dividends, stock splits, reverse splits and similar events which occur with
respect to the Common Stock after the date hereof) (the “New Securities”),
the Investor or its designee holding the Shares shall have the right to
purchase from the Company, in accordance with paragraph (b) below, a
number of New Securities such that, after giving effect to the proposed
issuance and sale of New Securities, and any conversion, exchange or exercise
thereof including New Securities issued and sold pursuant to this Section 5.12,
the Investor and its Affiliates together would own the same percentage of the
issued and outstanding shares of Common Stock as it owned prior to such
issuances and sales; provided that
the Investor may not exercise such right to purchase the New Securities in any
such offering in which the “Use of Proceeds” in the final prospectus or pricing
supplement states (and the Company agrees for the benefit of the Investor) that
the net proceeds to the Company shall first be used in full to repurchase
shares of Common Stock pursuant to the Call Provision in Section 5.10
above, before being applied to any other uses, and such net proceeds are so
applied promptly upon receipt thereof by the Company; provided,
further, that the Investor may only
exercise such right to purchase the New Securities to the extent that such
purchases do not require any approval or authorization from the Company’s
shareholders at the time of such purchase. 
The rights of the Investor under this Section 5.12(a) shall
terminate if unexercised within the timeframe referred to in the Notice of
Issuance.


 


(b)           In the event the
Company proposes to issue or sell New Securities for cash, (excluding any
issuance or sale pursuant to the Stock Incentive Plans or any Benefit Plan),
the Company shall give the Investor as much prior written notice as is
reasonably 


 


23

















 


practicable considering the circumstances of the
proposed offering of New Securities, but in no case less than 10 Business Days,
of its intention to issue or sell such New Securities, including the price per
share of Common Stock reflected in the price of the New Securities or the
proposed ranges of prices per share of Common Stock reflected in the price of
the New Securities, the proposed date of issuance or sale of the New
Securities, the time by which the Investor must notify the Company that it
intends to exercise its right to acquire any New Securities pursuant to Section 5.12(a) and
all other material terms and conditions of such issuance or sale (the “Notice
of Issuance”). The Company shall offer any such New Securities to the
Investor on the most favorable terms offered to any other purchaser (it being
understood that, in the case of a public offering, the purchase price shall be
the public offering price and not the price paid by any underwriter).  The Investor shall, prior to the time
specified in the Notice of Issuance, agree to purchase all or a portion of the
New Securities it is entitled to purchase pursuant to Section 5.12(a) above,
for cash and otherwise upon the terms specified in the Notice of Issuance, by
giving written notice to the Company, and stating therein its agreement to
purchase New Securities and the quantity of New Securities to be purchased by
the Investor.  Any shares of Common Stock
purchased in accordance with this Section 5.12 shall be considered Shares
for all purposes of this Agreement.


 


SECTION 5.13.               Lock-Up.  The Investor
will not, during the period ending 180 days after the date of issuance of the
Shares (the “Lock-Up Period”), except in connection with a merger,
business combination, tender or exchange offer, recapitalization,
reorganization, asset purchase or other extraordinary transaction that the
Investor has not initiated, or in connection with the Call Provision described
in Section 5.10 above, (i) offer, pledge, announce the intention to
sell, sell, contract to sell, sell any option or contract to purchase, purchase
any option or contract to sell, grant any option, right or warrant to purchase,
or otherwise transfer or dispose of, directly or indirectly, any of the Shares,
or any securities convertible into or exercisable or exchangeable for the
Shares or (ii) enter into any swap or other agreement that transfers, in
whole or in part, any of the economic consequences of ownership of the Shares,
whether any such transaction described in clause (i) or (ii) above is
to be settled by delivery of the Shares or such other securities, in cash or
otherwise; provided that nothing in the foregoing
shall prohibit the Investor from transferring the Shares to any Affiliate where
the Investor and such Affiliate each agree to be bound by the covenants
applicable to the Investor in this Agreement and provided
further, that any such Affiliate shall make for the benefit of the
Company the representation and warranty set forth in Section 4.04.  In furtherance of the foregoing, the Company
and any duly appointed transfer agent for the registration of transfer of the
securities described herein are hereby authorized to decline to register any
transfer of securities if such transfer would constitute a violation or breach
of this Agreement.


 


SECTION 5.14.               Standstill.  Until the
earlier of (i) 18 months from the Closing Date or (ii) the date the
Investor ceases to own at least 5% of the outstanding shares of the Common
Stock of the Company, the Investor shall not, and shall be responsible for
ensuring that each member of the Seller Group (as defined in the 


 


24

















 


Transaction Agreement) shall not, directly or
indirectly, without the Company’s consent, (i) acquire (other than
pursuant to Section 5.12 above or pursuant to any stock dividend, stock
split, reclassification or similar transaction initiated by the Company) any
additional voting securities of the Company (including any derivative security
thereof); (ii) form or participate in any “group” with respect to any
voting securities of the Company; (iii) engage or otherwise participate in
any proxy solicitation with respect to the Company or propose a nominee for
director of the Company pursuant to SEC Rule 14a-11 before January 1,
2011; (iv) seek to influence or control in any manner whatsoever (other
than by voting of the shares owned by the Investor or withholding of such
votes), alone or in concert with others, the management, board or policies of
the Company; (v) initiate any merger, tender or exchange offer, business
combination, recapitalization, reorganization, asset purchase or other similar
extraordinary transaction involving the Company or any material part of its
securities, assets or properties; (vi) seek to call a special meeting of
the Company’s shareholders; or (vii) publicly disclose any proposal, offer,
intention, plan or arrangement inconsistent with the foregoing; provided that nothing in the foregoing shall prohibit the
Investor from participating (by selling its shares or voting in favor of such
transaction) in a merger, business combination, tender or exchange offer,
recapitalization, reorganization, asset purchase or other extraordinary
transaction that it has not initiated or proposed, other than any proposal made
privately to the Company provided such transaction is endorsed by the Company.


 


SECTION 5.15.               Transfer Restrictions.  Unless the
express terms of this Agreement provide otherwise, the Shares of Common Stock
will be subject to transfer restrictions only as required for compliance with
applicable securities laws.


 


SECTION 5.16.               Termination of Rights Agreement. 
The Company shall cause the termination of the Rights Agreement on or
before the date that is five Business Days after the date hereof and shall not
replace the Rights Agreement with any successor rights agreement without
providing (i) that rights exercisable pursuant to such successor rights
agreement will not be triggered as a result of the transactions contemplated by
this Agreement and (ii) the Shares to be delivered at Closing or in
connection with the exercise of the Investor’s right to purchase additional
shares of Common Stock pursuant to Section 5.12 shall not be considered
for purposes of determining whether the Investor or any of its Affiliates shall
be an “Acquiring Person” (or acquirer with equivalent status) thereunder.


 


ARTICLE VI


 


CONDITIONS TO CLOSING


 


SECTION 6.01.               Conditions to Obligations of the Company. 
The obligations of the Company to consummate the transactions
contemplated by this Agreement shall be subject to the fulfillment or written
waiver, at or prior to the Closing, of each of the following conditions:


 


25
















 


(a)                          Closing Deliveries. 
The items specified in Section 2.05(a) shall have been
delivered to the Company;


 


(b)                         Governmental Approvals. 
Any waiting period (and any extension thereof) under the HSR Act
applicable to the purchase of the Shares contemplated by this Agreement shall
have expired or shall have been terminated; and


 


(c)                          Issuance Amount. 
The number of shares to be acquired by the Investor, taking into account
any reduction of the Share Consideration as agreed by the Parties pursuant to Section 2.02(d),
may not exceed 19.9% of the number of shares of the Common Stock of the Company
immediately prior to such issuance.


 


SECTION 6.02.                                              Conditions to Obligations of the
Investor.  The obligations of the Investor to consummate
the transactions contemplated by this Agreement shall be subject to the
fulfillment or written waiver, at or prior to the Closing, of each of the
following conditions:


 


(a)                          Closing Deliveries. 
The documents specified in Section 2.04 shall have been delivered
to the Investor;


 


(b)                         Representations, Warranties and Covenants.  (i) all
representations and warranties of the Company set forth in this Agreement shall
be true and correct as of the date of this Agreement; (ii) additionally,
the representations and warranties that are set forth in Sections 3.01, 3.02,
3.03, 3.04, 3.05, 3.11, 3.12, 3.13 and 3.14 shall be true and correct as of the
Closing Date, except to the extent that such representations or warranties are
made as of another date, in which case such representations or warranties shall
be true and correct as of such date; and (iii) the covenants and
agreements contained in this Agreement to be complied with by the Company at or
before the Closing shall have been complied with in all material respects;


 


(c)                          [Intentionally omitted.]


 


(d)                         Transaction Agreement.  (i) The
Transaction Agreement shall have been executed by all parties thereto and shall
be in effect, (ii) all conditions to completion of the transactions as
contemplated by the Transaction Agreement shall be satisfied or waived (if
applicable) in accordance with the Transaction Agreement, (iii) there
shall be no breach under the Transaction Agreement by the Company and (iv) the
transactions contemplated by the Transaction Agreement shall occur concurrently
with the Closing as defined in the Transaction Agreement;


 


(e)                          Consents.  All
governmental and third party consents and approvals necessary in connection
with the transactions contemplated hereby (including, without limitation, the
expiry or termination of any applicable waiting period under the HSR Act) shall
have been obtained (without the imposition of any costs or conditions that are
not acceptable to the Investor) and shall remain in effect, and no Law or
Governmental Order (whether temporary, preliminary or permanent) shall be in
effect that makes the 


 


26

















 


transactions contemplated by this Agreement or the Registration Rights
Agreement illegal or otherwise restrains, prevents or imposes materially
adverse conditions upon the consummation of such transactions;


 


(f)                            Debt Financing. 
The Company shall have entered into an agreement or agreements for
additional debt financing in an amount totaling at least $1 billion and (i) all
conditions precedent to such debt financing agreement or agreements other than
the Closing shall be satisfied or waived (if applicable) in accordance with
such agreement or agreements, (ii) there shall be no breach under such
agreement or agreements by the Company and (iii) the amounts totaling at least
$1 billion shall be drawn by the Company concurrently with the Closing;


 


(g)                         Issuance Amount. 
The number of shares to be acquired by the Investor, taking into account
any reduction of the Share Consideration as agreed by the Parties pursuant to Section 2.02(d),
may not exceed 19.9% of the number of shares of the Common Stock of the Company
immediately prior to such issuance; and


 


(h)                         Authorization for Listing. 
The Shares shall have been authorized for listing on the NYSE upon
notice of issuance.


 


ARTICLE VII


 


INDEMNIFICATION


 


SECTION 7.01.                                              Survival of Representations, Warranties,
Covenants and Agreements.


 


(a)                          The representations and warranties of the
Company contained in this Agreement shall survive the Closing and expire on the
date that is 4 months after the first completed calendar year following the
Closing; provided that the representations
contained in Section 3.08 shall survive the Closing and expire on the date
that is 8 years after the Closing Date, the representation contained in Section 3.09
shall survive the Closing and expire with the expiration of the relevant
statutory limitation in relation to the matters giving rise to any claim
arising out of or resulting from a breach of any such representation, and the
representations contained in Sections 3.01, 3.02, 3.03, 3.04 and 3.05 shall
survive indefinitely.  Notwithstanding
the foregoing, no claim shall be made under the representations and warranties
of the Company contained in this Agreement after the expiration of the relevant
statutory limitation in relation to the matters giving rise to any claim.


 


(b)                         All covenants and agreements contained in
this Agreement shall survive in accordance with their terms, except for the
covenants and agreements that are required to be performed prior to the
Closing, which shall terminate at the Closing.


 


SECTION 7.02.                                              Indemnification by the Company. 
The Investor and its Affiliates, officers, directors, employees, agents,
successors and assigns (each, an 


 


27

















 


“Investor Indemnified Party”) shall be
indemnified and held harmless by the Company on an after-tax basis for and
against all losses, damages, liabilities, claims, costs and expenses, interest,
awards, judgments and penalties (including reasonable attorneys’ and
consultants’ fees and expenses) actually suffered or incurred by them without
duplication of any other recovery (hereinafter, a “Loss”), arising out
of or resulting from: (i) the breach of any representation or warranty
made by the Company contained in this Agreement; (ii) the breach of any
covenant or agreement by the Company contained in this Agreement; or (iii) any
untrue or alleged untrue statement of a material fact contained in any
prospectus or other document used in connection with any sale of shares of
Common Stock by or on behalf of the Investor or arising out of or based upon
any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as the same are made in reliance and in conformity with information
furnished in writing to the Company by the Investor or any underwriter or other
distributor selected by the Investor expressly for use therein.


 


SECTION 7.03.                                              Indemnification by the Investor. 
The Company and its Affiliates, officers, directors, employees, agents,
successors and assigns (each, a “Company Indemnified Party”) shall be
indemnified and held harmless by the Investor on an after-tax basis for and
against any and all Losses, arising out of or resulting from: (i) the
breach of any representation or warranty made by the Investor contained in this
Agreement; or (ii) the breach of any covenant or agreement by the Investor
contained in this Agreement; or (iii) any untrue or alleged untrue statement
of a material fact contained in any prospectus or other document used in
connection with any sale of shares of Common Stock by or on behalf of the
Investor or arising out of or based upon any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading and made in reliance and in conformity with information
furnished in writing to the Company by Investor expressly for use therein.


 


SECTION 7.04.                                              Limits on Indemnification.


 


(a)                          No claim may be asserted nor may any
Action be commenced against either party for breach of any representation,
warranty, covenant or agreement contained herein, unless written notice of such
claim or action is received by such party describing in reasonable detail the
facts and circumstances with respect to the subject matter of such claim or
Action on or prior to the date on which the representation, warranty, covenant
or agreement on which such claim or Action is based ceases to survive as set
forth in Section 7.01, irrespective of whether the subject matter of such
claim or action shall have occurred before or after such date.


 


(b)                         For all purposes of this Article VII,
(i) “Losses” shall be net of any insurance or other recoveries actually
received by the Indemnified Party or its Affiliates in connection with the
facts giving rise to the right of indemnification and (ii) the 


 


28

















 


payment in respect of Losses shall be treated, to the extent possible,
as an adjustment to the Share Consideration.


 


SECTION 7.05.                                              Notice of Loss; Third Party Claims.


 


(a)                          An Indemnified Party shall give the
Indemnifying Party notice of any matter which an Indemnified Party has
determined has given or could give rise to a right of indemnification under
this Agreement, within 30 days of such determination, stating the amount of the
Loss, if known, and method of computation thereof, and containing a reference
to the provisions of this Agreement in respect of which such right of indemnification
is claimed or arises.


 


(b)                         If an Indemnified Party shall receive
notice of any Action, audit, claim, demand or assessment (each, a “Third
Party Claim”) against it which may give rise to a claim for Loss under this
Article VII, the Indemnified Party shall give the Indemnifying Party
notice of such Third Party Claim within 30 days of the receipt of such notice; provided, however, that
the failure to provide such notice shall not release the Indemnifying Party
from any of its obligations under this Article VII except to the extent
that such failure adversely affects the ability of the Indemnifying Party to
defend such Third Party Claim. The Indemnifying Party shall be entitled to
assume and control the defense of such Third Party Claim at its expense and
through counsel of its choice if it gives notice of its intention to do so to
the Indemnified Party within 30 days of the receipt of such notice from the
Indemnified Party.  If the Indemnifying
Party elects to undertake any such defense against a Third Party Claim, the
Indemnified Party may participate in such defense at its own expense; provided, however, that
such Indemnified Party shall be entitled to participate in any such defense
with separate counsel at the expense of the Indemnifying Party if (i) so
requested by the Indemnifying Party to participate with separate counsel or (ii) in
the reasonable written opinion of counsel to the Indemnified Party, a conflict
or potential conflict exists between the Indemnified Party and the Indemnifying
Party that would make such separate representation advisable; and provided, further, that
the Indemnifying Party shall not be required to pay for more than one such
counsel for all Indemnified Parties in connection with any Third Party Claim.
The Indemnified Party shall cooperate with the Indemnifying Party in such
defense and make available to the Indemnifying Party, at the Indemnifying Party’s
expense, all witnesses, pertinent records, materials and information in the
Indemnified Party’s possession or under the Indemnified Party’s control
relating thereto as is reasonably required by the Indemnifying Party.  If the Indemnifying Party elects to direct
the defense of any such claim or proceeding, the Indemnified Party shall not
pay, or permit to be paid, any part of such Third Party Claim unless the
Indemnifying Party consents in writing to such payment or unless the
Indemnifying Party withdraws from the defense of such Third Party Claim
(subject to the next sentence) or unless a final judgment from which no appeal
may be taken by or on behalf of the Indemnifying Party is entered against the
Indemnified Party for such Third Party Claim. If the Indemnified Party assumes
the defense of any such claims or proceeding pursuant to this Section 7.05
and proposes to settle such claims or proceeding prior to a final judgment
thereon or to forgo 


 


29

















 


any appeal with respect thereto, then the Indemnified Party shall give
the Indemnifying Party prompt written notice thereof and the Indemnifying Party
shall have the right to participate in the settlement or assume or reassume the
defense of such claims or proceeding. 
Neither the Indemnifying Party nor the Indemnified Party shall, without
the written consent of the other party, settle or compromise any Third Party
Claim or permit a default or consent to entry of any judgment unless the
claimant or claimants and such party provide to such other party an unqualified
release from all liability in respect of the Third Party Claim.


 


SECTION 7.06.                                              Remedies.  The Investor
and the Company acknowledge and agree that (a) following the Closing,
except for fraud, the indemnification provisions of Section 7.02 and Section 7.03
shall be the sole and exclusive remedies of the Investor and the Company for
any breach by the other party of the representations and warranties in this
Agreement and for any failure by the other party to perform and comply with any
covenants and agreements in this Agreement, and (b) anything herein to the
contrary notwithstanding, no breach of any representation, warranty, covenant
or agreement contained herein shall give rise to any right on the part of the
Investor or the Company, after the consummation of the purchase and sale of the
Shares contemplated by this Agreement, to rescind this Agreement or any of the
transactions contemplated hereby.


 


SECTION 7.07.                                              Subrogation. 
After any indemnification payment is made to any Indemnified Party
pursuant to this Article VII, the Indemnifying Party shall, to the extent
of such payment, be subrogated to all rights, if any, of the Indemnified Party
against any third party in connection with the Losses to which such payment
relates.  Without limiting the generality
of the preceding sentence, any Indemnified Party receiving an indemnification
payment pursuant to the preceding sentence shall execute, upon the written
request of the Indemnifying Party, any instrument reasonably necessary to
evidence such subrogation rights.  In any
case where an Indemnified Party recovers from a third party any amount in
respect of a matter for which an Indemnifying Party has indemnified it pursuant
to this Article VII, such Indemnified Party shall promptly pay over to the
Indemnifying Party an amount equal to (a) the amount so recovered (after
deducting therefrom the amount of expenses incurred by the Indemnified Party in
procuring such recovery), minus (b) the excess, if any, of (i) the
amount of the Loss over (ii) any amount previously paid by the
Indemnifying Party to or on behalf of the Indemnified Party in respect of such
claim.


 


ARTICLE VIII


 


TERMINATION, AMENDMENT AND WAIVER


 


SECTION 8.01.                                              Termination. 
This Agreement may be terminated at any time prior to the Closing:


 


30

















 


(a)                          by either the Investor or the Company in
the event that the Transaction Agreement has been terminated; or


 


(b)                         by the mutual written consent of the
Company and the Investor.


 


SECTION 8.02.                                              Effect of Termination. 
In the event of termination of this Agreement as provided in Section 8.01,
this Agreement shall forthwith become void except for Section 5.03, this Section 8.02
and Article IX and there shall be no liability on the part of either party
hereto except (a) as set forth in Sections 5.03 and 9.01 and (b) that
nothing herein shall relieve either party from liability for any material
breach of this Agreement occurring prior to such termination.


 


ARTICLE IX


 


GENERAL PROVISIONS


 


SECTION 9.01.                                              Expenses.  Except as
otherwise specified in this Agreement, all costs and expenses, including fees
and disbursements of counsel, financial advisors and accountants, incurred in
connection with this Agreement and the transactions contemplated by this
Agreement shall be borne by the party incurring such costs and expenses,
whether or not the Closing shall have occurred.


 


SECTION 9.02.                                              Notices.  All notices,
requests, claims, demands and other communications hereunder shall be in
writing and shall be given or made (and shall be deemed to have been duly given
or made upon receipt) by delivery in person, by an internationally recognized
overnight courier service, by facsimile or registered or certified mail
(postage prepaid, return receipt requested) to the respective parties hereto at
the following addresses (or at such other address for a party as shall be
specified in a notice given in accordance with this Section 9.02):


 


(a)                          if to the Company:


 


Bemis Company, Inc.


One Neenah Center, 4th Floor


P.O. Box 669


Neenah, Wisconsin 54957-0669


Fax: 920-527-5040


Attn:  General Counsel


 


with a copy to:


 


Faegre &
Benson LLP


2200 Wells Fargo
Center


90 South Seventh
Street


Minneapolis,
Minnesota 55402


Fax: 612-766-1600


 


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Attn:  James Nicholson


 


(b)                         if to the Investor:


 


Pechiney
Plastic Packaging, Inc.


c/-
Rio Tinto plc


2
Eastbourne Terrace


London


W2 6LG


United
Kingdom


Attention:
The Treasurer


Facsimile:
+44 (0)20 7781 1800


 


with a
copy to:


 


Sullivan &
Cromwell LLP


1 New Fetter Lane


London EC4A 1AN


U.K.


Attention: Tim
Emmerson and George White


Facsimile: +44 (0)20
7959 8950


 


SECTION 9.03.                                              Public Announcements. 
Neither party to this Agreement shall make, or cause to be made, any
press release or public announcement in respect of this Agreement or the
transactions contemplated by this Agreement or otherwise communicate with any
news media without the prior written consent of the other party unless
otherwise required by Law, and the parties to this Agreement shall cooperate as
to the timing and contents of any such press release, public announcement or
communication.


 


SECTION 9.04.                                              Severability. 
Each of the provisions of this Agreement and the Registration Rights
Agreement is severable. If any such provision is held to be or becomes invalid
or unenforceable in any respect under the Law of any jurisdiction, it shall
have no effect in that respect and the parties shall endeavor on a commercially
reasonable basis to replace it in that respect with a valid and enforceable
substitute provision the effect of which is as close to its intended effect as
possible.


 


SECTION 9.05.                                              Entire Agreement. 
This Agreement, the Registration Rights Agreement, the Transaction
Agreement and the Confidentiality Agreement constitute the entire agreement of
the parties hereto with respect to the subject matter hereof and thereof and
supersede all prior agreements and undertakings, both written and oral, between
the Company and the Investor with respect to the subject matter hereof and
thereof.


 


SECTION 9.06.                                              Assignment. 
This Agreement may not be assigned by operation of law or otherwise
without the express written consent of the Company or the 


 


32

















 


Investor (which consent may be granted or withheld in
the sole discretion of the Company or the Investor), as the case may be, except
in the case of an assignment by the Investor to one or more of its Affiliates
where the Investor and such Affiliate or Affiliates each agree to be bound by
the covenants applicable to the Investor in this Agreement.


 


SECTION 9.07.                                              Amendment.  This Agreement
may not be amended or modified except (a) by an instrument in writing
signed by, or on behalf of, the Company and the Investor or (b) by a
waiver in accordance with Section 9.08.


 


SECTION 9.08.                                              Waiver.  Either party
to this Agreement may (a) extend the time for the performance of any of
the obligations or other acts of the other party, (b) waive any
inaccuracies in the representations and warranties of the other party contained
herein or in any document delivered by the other party pursuant hereto or (c) waive
compliance with any of the agreements of the other party or conditions to such
party’s obligations contained herein. 
Any such extension or waiver shall be valid only if set forth in an
instrument in writing signed by the party to be bound thereby.  Any waiver of any term or condition shall not
be construed as a waiver of any subsequent breach or a subsequent waiver of the
same term or condition, or a waiver of any other term or condition of this
Agreement.  The failure of either party
hereto to assert any of its rights hereunder shall not constitute a waiver of
any such rights.


 


SECTION 9.09.                                              Third Party Beneficiaries. 
This Agreement shall be binding upon and inure solely to the benefit of
the parties hereto and their respective successors and permitted assigns and
nothing herein, express or implied, other than the provisions of Article VII
relating to Indemnified Parties, is intended to or shall confer upon any other
Person any legal or equitable right, benefit or remedy of any nature
whatsoever, including any rights of employment for any specified period, under
or by reason of this Agreement.


 


SECTION 9.10.                                              Currency.  Unless
otherwise specified in this Agreement, all references to currency, monetary
values and dollars set forth herein shall mean United States (U.S.) dollars and
all payments hereunder shall be made in United States dollars.


 


SECTION 9.11.                                              Specific Performance. 
Each of the parties hereto agrees that irreparable damage would occur in
the event any provision of this Agreement were not performed in accordance with
the terms hereof and that the parties hereto shall be entitled to seek specific
performance of the terms hereof, in addition to any other remedy at Law or
equity.


 


SECTION 9.12.                                              Governing Law. 
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.  All
Actions arising out of or relating to this Agreement shall be heard and
determined exclusively in any United States federal court sitting in the State
of Delaware; provided, however,
that if such federal court does not have jurisdiction over such Action, such
Action shall be heard 


 


33

















 


and determined exclusively in any Delaware state
court.  Consistent with the preceding
sentence, the parties hereto hereby (a) submit to the exclusive
jurisdiction of any federal or state court sitting in Delaware for the purpose
of any Action arising out of or relating to this Agreement brought by any party
hereto and (b) irrevocably waive, and agree not to assert by way of motion,
defense, or otherwise, in any such Action, any claim that it is not subject
personally to the jurisdiction of the above-named courts, that its property is
exempt or immune from attachment or execution, that the Action is brought in an
inconvenient forum, that the venue of the Action is improper, or that this
Agreement or the transactions contemplated by this Agreement may not be
enforced in or by any of the above-named courts.


 


SECTION 9.13.                                              Waiver of Jury Trial. 
EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO
ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.  EACH OF THE PARTIES HERETO HEREBY (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT
IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.13.


 


SECTION 9.14.                                              Counterparts. 
This Agreement may be executed and delivered (including by facsimile
transmission or other electronic means) in counterparts, and by the different
parties hereto in separate counterparts, each of which when executed shall be
deemed to be an original, but all of which taken together shall constitute one
and the same agreement.


 


[SIGNATURE PAGE FOLLOWS]


 


34

















 


IN
WITNESS WHEREOF, the Company and the Investor have caused this Agreement to be
executed as of the date first written above by their respective officers
thereunto duly authorized.


 


 


	
   

  	
  Bemis
  Company, Inc.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Pechiney Plastic
  Packaging, Inc.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Signature Page to Share
Purchase Agreement


 

















 


Exhibit A


 


Registration
Rights Agreement


 


A-1

















 


Exhibit B


 


Substance of Legal Opinion from
the Company’s Counsel


 


1.                                       The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State of Missouri.


 


2.                                       The Share Purchase Agreement and the Registration
Rights Agreement have been duly authorized, executed and delivered by the
Company.


 


3.                                       The Shares, when issued, will be duly authorized and
validly issued, fully paid and nonassessable and not subject to any pre-emptive
rights.


 


4.                                       The execution, delivery and performance of this
Agreement and the Registration Rights Agreement by the Company do not and will
not contravene, or constitute a default under, any provision of applicable Law,
any Material Contract or the certificate or articles of incorporation or
by-laws of the Company, or any judgment, order, decree, agreement or instrument
binding on the Company or its Assets.


 


5.                                       All regulatory consents, authorizations, approvals and
filings required to be obtained or made by the Company on or prior to the date
hereof under the Federal laws of the United States and the laws of the State of
Missouri for the issuance, sale and delivery of the Shares by the Company to
the Investor in accordance with the Share Purchase Agreement have been obtained
or made.


 


6.                                       The Company is not now, and after giving effect to the
Share Purchase Agreement and the Transaction Agreement would not be, on the
date hereof required to register as an “investment company” under the
Investment Company Act of 1940, as amended.


 


B-1