Exhibit 10.1


 


 


SEALED
AIR CORPORATION


 






 


NOTE
PURCHASE AGREEMENT


 










 

















 


SEALED
AIR CORPORATION


 


NOTE
PURCHASE AGREEMENT


 


THIS NOTE
PURCHASE AGREEMENT (the “Agreement”) is made as of the 6th
day of February, 2009 (the “Effective Date”)
by and among SEALED AIR CORPORATION, a Delaware corporation (the “Company”), and DAVIS
SELECTED ADVISERS, L.P., GEICO INDEMNITY COMPANY and GENERAL RE LIFE CORPORATION (individually, a “Purchaser” and collectively, the “Purchasers”).


 


The parties hereby agree
as follows:


 


1.                                      AMOUNT
AND TERMS OF THE LOAN


 


1.1                               The
Loan.  Subject to the terms of this
Agreement, each Purchaser agrees to lend to the Company the amount set forth
opposite each such Purchaser’s name on the Schedule of Purchasers (each, a “Loan Amount”) against the issuance
and delivery by the Company of a promissory note or notes for the Loan Amount
(each, a “Note” and collectively, the “Notes”), which Notes will be issued
under an indenture (the “Indenture”)
in substantially the form attached hereto as Exhibit A and which will have
the benefit of registration rights under a registration rights agreement (the “Registration Rights Agreement”) in
substantially the form attached hereto as Exhibit B.


 


2.                                      THE
CLOSING


 


2.1                               Closing
Date.  The closing of the purchase
and sale of the Notes (the “Closing”)
shall be held on the Effective Date, or at such other time as the Company and
the Purchasers shall agree (the “Closing Date”).


 


2.2                               Delivery.  At the Closing (i) each Purchaser will
deliver to the Company or to its order such Purchaser’s Loan Amount as
indicated on the Schedule of Purchasers by wire transfer of immediately
available funds for the account of the Company to account number: 5800393034 at
Bank of America NA, New York, NY, ABA number: 026009593, Reference:  Senior Note Proceeds; and (ii) the
Company shall issue and deliver to each Purchaser Notes through the facilities
of The Depository Trust Company in favor of such Purchaser payable in the
principal amount of such Purchaser’s Loan Amount.


 


3.                                      REPRESENTATIONS,
WARRANTIES AND COVENANTS OF THE COMPANY


 


The
Company hereby represents and warrants to each Purchaser as follows:


 


3.1                               Organization
and Good Standing.  The Company is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware.  The
Company has the requisite corporate power and authority to conduct its business
as it is presently being conducted and to own and operate its properties and
assets.  The Company is duly qualified to
transact business and is in good standing in each jurisdiction in which failure
to so


 


1

















 


qualify would have a material adverse effect on the
Company and its subsidiaries considered as one entity.


 


3.2                               Corporate
Power. 
The Company has and will have at the Closing Date all requisite
corporate power and authority to execute and deliver this Agreement, the
Indenture, the Notes and the Registration Rights Agreement and to carry out and
perform its obligations under the terms of this Agreement, the Indenture, the
Notes and the Registration Rights Agreement.


 


3.3                               Authorization.  All corporate action on the part of the
Company necessary for the authorization, execution, delivery and performance of
this Agreement by the Company and the performance of the Company’s obligations
hereunder, including the issuance and delivery of the Notes, has been taken or
will be taken prior to the issuance of the Notes.  This Agreement, the Indenture, the Notes and
the Registration Rights Agreement, when executed and delivered by the Company,
shall constitute valid and binding obligations of the Company enforceable
against the Company in accordance with their terms, except as such
enforceability may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors’ rights generally, (ii) general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law) and (iii) with respect to rights to indemnity, federal and state
securities laws.


 


3.4                               Governmental
Consents.  All consents, approvals,
orders, or authorizations of, or registrations, qualifications, designations,
declarations, or filings with, any governmental authority, required on the part
of the Company in connection with the valid execution and delivery of this
Agreement, the Indenture and the Registration Rights Agreement, the offer, sale
and issuance of the Notes and the consummation of any other transaction
contemplated hereby (except such additional steps as may be required by the
Securities and Exchange Commission or the Financial Industry Regulatory
Authority in connection with transactions contemplated by the Registration
Rights Agreement, or such additional steps as may be necessary to qualify the
Notes for public offering under state securities or Blue Sky laws) shall have
been obtained and will be effective at the Closing.


 


3.5                               Private
Offering by the Company.  Neither the
Company nor anyone acting on its behalf has offered the Notes or any similar
securities for sale to, or solicited any offer to buy any of the same from, or
otherwise approached or negotiated in respect thereof with, any person other
than the Purchasers, each of which has been offered the Notes as a private sale
for investment.  Neither the Company nor
anyone acting on its behalf has taken, or will take, any action that would
subject the issuance or sale of the Notes to the registration requirements of
the Securities Act of 1933, as amended (the “1933
Act”), or to the registration requirements of any securities or
blue sky laws of any applicable jurisdiction.


 


3.6                               Offering.  Assuming the accuracy of the representations
and warranties of the Purchasers contained in Section 4 hereof, the offer,
issue, and sale of the Notes are and will be exempt from the registration
requirements of the 1933 Act, and have been registered or qualified (or are
exempt from registration and qualification) under the registration, permit, or
qualification requirements of all applicable state securities laws.


 


2

















 


3.7                               Non-Contravention.
The execution and delivery by the Company, and the performance by the Company
of its obligations under, this Agreement, the Indenture, the Notes and the
Registration Rights Agreement will not contravene any provision of applicable
law or the certificate of incorporation or by-laws of the Company or any
agreement or other instrument binding upon the Company that is material to the
Company and its subsidiaries taken as a whole, or any judgment, order or decree
of any governmental body, agency or court having jurisdiction over the Company
or any subsidiary.


 


3.8                               Information
Requirement. While any of the Notes remain “restricted securities” within
the meaning of the 1933 Act, the Company will make available, upon request, to
any seller of such Notes the information specified in Rule 144A(d)(4) under
the 1933 Act, unless the Company is then subject to Section 13 or 15(d) of
the Securities Exchange Act of 1934, as amended.


 


4.                                      REPRESENTATIONS
AND WARRANTIES AND COVENANTS OF THE PURCHASERS


 


4.1                               Purchase
for Own Account.  Each Purchaser
represents that it is acquiring the Notes solely for its own account and
beneficial interest or for the account and beneficial interest of another entity
that is (i) a “qualified institutional buyer” (“QIB”)
within the meaning of Rule 144A of the 1933 Act and (ii) named on
Schedule 1 hereto, in each case, for investment and not for sale or with a view
to distribution of the Notes or any part thereof, that it or such account has
no present intention of selling (in connection with a distribution or
otherwise), granting any participation in, or otherwise distributing the same,
and does not presently have reason to anticipate a change in such intention.


 


4.2                               Information
and Sophistication.  Without
lessening or obviating the representations and warranties of the Company set
forth in Section 3, each Purchaser on its own behalf, and on behalf of any
account for which it is purchasing Notes, hereby: (i) acknowledges that it
has received all the information it has requested from the Company that it
considers necessary or appropriate for deciding whether to acquire the Notes, (ii) represents
that it has had an opportunity to ask questions and receive answers from the
Company regarding the terms and conditions of the offering of the Notes and to
obtain any additional information necessary to verify the accuracy of the
information given such Purchaser and (iii) further represents that it has
such knowledge and experience in financial and business matters that it is
capable of evaluating the merits and risk of this investment.


 


4.3                               Ability
to Bear Economic Risk.  Each
Purchaser on its own behalf, and on behalf of any account for which it is
purchasing Notes, acknowledges that investment in the Notes involves a high
degree of risk, and represents that it is able, without materially impairing
its financial condition, to hold the Notes for an indefinite period of time and
to suffer a complete loss of its investment.


 


4.4                               Further
Limitations on Disposition.  Without
in any way limiting the representations set forth above, each Purchaser on its
own behalf, and on behalf of any account for which it is purchasing Notes,
further agrees not to make any disposition of all or any portion of the Notes
unless and until:


 


3

















 


(a)                                  There
is then in effect a Registration Statement under the 1933 Act covering such
proposed disposition and such disposition is made in accordance with such Registration
Statement; or


 


(b)                                  The
Purchaser shall have notified the Company of the proposed disposition and shall
have furnished the Company with a detailed statement of the circumstances
surrounding the proposed disposition, and if reasonably requested by the
Company, such Purchaser shall have furnished the Company with an opinion of
counsel, reasonably satisfactory to the Company, that such disposition will not
require registration under the 1933 Act, or any securities or blue sky laws of
any applicable jurisdiction.


 


4.5                               Qualified
Institutional Buyer Status.  Each
Purchaser represents that it is a QIB.


 


4.6                               Brokers
and Finders.  Each Purchaser on its
own behalf, and on behalf of any account for which it is purchasing Notes,
represents and warrants that it has not employed or retained any broker,
finder, financial advisor, investment banker or other person or entity who
might be entitled to any brokerage, finder’s or other fee or commission or
similar charges in connection with the transactions contemplated by this
Agreement.


 


4.7                               Authorization.  Each Purchaser represents that (i) it
has full power and authority to enter into this Agreement, (ii) all
corporate action on the part of such Purchaser necessary for the authorization,
execution, delivery and performance of this Agreement by such Purchaser and the
performance of such Purchaser’s obligations hereunder has been taken, (iii) this
Agreement, when executed and delivered by such Purchaser, shall constitute a
valid and binding obligation of such Purchaser enforceable against such
Purchaser in accordance with its terms, except as such enforceability may be
limited by (i) applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors’ rights
generally, (ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and (iii) with
respect to rights to indemnity, federal and state securities laws.


 


4.8                               Authorization
on Behalf of Accounts. Each  Purchaser
signing this Agreement is acquiring the Notes for its own account or for the
accounts of one or more entities as to which the Purchaser is authorized to
make the acknowledgements, representations and warranties contained herein, and
to enter into this Agreement.


 


4.9                               Further
Assurances.  Each Purchaser agrees
and covenants that at any time and from time to time it will promptly execute
and deliver to the Company such further instruments and documents and take such
further action as the Company may reasonably require in order to carry out the
full intent and purpose of this Agreement and to comply with state or federal
securities laws or other regulatory approvals.


 


5.                                      MISCELLANEOUS


 


5.1                               Binding
Agreement.  The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective successors and
assigns of the parties.  Nothing in this
Agreement, expressed or implied, is intended to confer upon any third party any
rights,


 


4

















 


remedies, obligations, or liabilities under or by
reason of this Agreement, except as expressly provided in this Agreement.


 


5.2                               Governing
Law.  This Agreement shall be
governed by, and construed in accordance with, the laws of the State of New York.


 


5.3                               Counterparts.  This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.


 


5.4                               Titles
and Subtitles.  The titles and
subtitles used in this Agreement are used for convenience only and are not to
be considered in construing or interpreting this Agreement.


 


5.5                               Notices.
All notices required or permitted hereunder shall be in writing and shall be
deemed effectively given: (a) upon personal delivery to the party to be
notified, (b) when sent by confirmed telex or facsimile if sent during
normal business hours of the recipient, if not, then on the next business day, (c) five
(5) days after having been sent by registered or certified mail, return
receipt requested, postage prepaid, or (d) one (1) day after deposit
with a nationally recognized overnight courier, specifying next day delivery,
with written verification of receipt. 
All communications shall be sent to the Company at Sealed Air Corporation,
200 Riverfront Boulevard, Elmwood Park, New Jersey 07407, telephone number
(201) 703-4110, facsimile number (201) 703-4219, Attention: Chief Financial
Officer, with copies to: (a) Sealed Air Corporation, 200 Riverfront
Boulevard, Elmwood Park, New Jersey 07407, telephone number
(201) 703-4145, facsimile number (201) 703-4231, Attention: General
Counsel, and (b) Skadden, Arps, Slate, Meagher & Flom LLP, Four
Times Square, New York, New York 10036, telephone number (212) 735-3000,
facsimile number (212) 735-2000, Attention: Robert Chilstrom, and to the
respective Purchasers at Davis Selected Advisers, L.P., 2949 East Elvira Road, Suite 101,
Tucson, AZ 85756, telephone number: (520) 434-3771, facsimile number: (520)
434-3770, Attention: Thomas Tays, Chief Legal Officer; Geico Indemnity Company,
c/o Berkshire Hathaway Inc., 1440 Kiewit Plaza, Omaha, NE 68131, telephone
number: (402) 978-5429, facsimile number: (402) 346 3375, Attention: Mark D.
Millard; and General Re Life Corporation, c/o Berkshire Hathaway Inc., 1440
Kiewit Plaza, Omaha, NE 68131, telephone number: (402) 978-5429, facsimile
number: (402) 346 3375, Attention: Mark D. Millard or at such other address as
the Company or such Purchasers may designate by ten (10) days advance
written notice to the Purchasers, in the case of the Company, or to the
Company, in the case of a Purchaser.


 


5.6                               Modification;
Waiver.  No modification or waiver of
any provision of this Agreement or consent to departure therefrom shall be
effective unless in writing and approved by the Company and the Purchasers.


 


5.7                               Entire
Agreement.  This Agreement and the
Exhibits hereto constitute the full and entire understanding and agreement
between the parties with regard to the subjects hereof, and no party shall be
liable or bound to any other party in any manner by any representations,
warranties, covenants and agreements except as specifically set forth herein.


 


5

















 


5.8                               Expenses.  Each party shall pay all costs and expenses
that it incurs with respect to the negotiation, execution, delivery and
performance of this Agreement and the transactions contemplated thereby.


 


6

















 


IN WITNESS WHEREOF, the
parties have executed this NOTE PURCHASE AGREEMENT as
of the date first written above.


 


	
   

  	
  COMPANY:

  
	
   

  	
   

  	
   

  
	
   

  	
  SEALED
  AIR CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David H.
  Kelsey

  
	
   

  	
  Name: David H.
  Kelsey

  
	
   

  	
  Title: Senior
  Vice President and

  
	
   

  	
           Chief
  Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  PURCHASERS:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DAVIS
  SELECTED ADVISERS, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas Tays

  
	
   

  	
  Name: Thomas
  Tays

  
	
   

  	
  Title: Chief
  Legal Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GENERAL
  RE LIFE CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark D.
  Millard

  
	
   

  	
  Name: Mark D.
  Millard

  
	
   

  	
  Title:
  Authorized Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
  GEICO
  INDEMNITY COMPANY

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark D.
  Millard

  
	
   

  	
  Name: Mark D.
  Millard

  
	
   

  	
  Title:
  Authorized Signatory

  



 


7

















 


SCHEDULES
AND EXHIBITS


 


Schedule 1:                                   List
of Accounts of Davis Selected Advisers, L.P.


 


Schedule 2:                                   Schedule
of Purchasers


 


Exhibit A:                                            Form of
Indenture


 


Exhibit B:                                              Form of
Registration Rights Agreement


 
















 


SCHEDULE
1


 


List of
Accounts of Davis Selected Advisers, L.P.


 


	
  NAME & ADDRESS

  	
   

  	
  LOAN AMOUNT

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  DAVIS NEW YORK
  VENTURE FUND

  	
   

  	
  105,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SELECTED
  AMERICAN SHARES

  	
   

  	
  25,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  METROPOLITAN SERIES FUND, INC. — DAVIS VENTURE VALUE
  PORTFOLIO

  	
   

  	
  10,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  JOHN HANCOCK
  TRUST — FUNDAMENTAL VALUE TRUST

  	
   

  	
  5,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  JOHN HANCOCK
  FUND II — FUNDAMENTAL VALUE TRUST

  	
   

  	
  5,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  TOTAL

  	
   

  	
  150,000,000

  	
   

  



 

















 


SCHEDULE
2


 


Schedule
of Purchasers


 


	
  NAME

  	
   

  	
  LOAN AMOUNT

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  DAVIS SELECTED ADVISERS, L.P.

  	
   

  	
  $

  	
  150,000,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  GEICO INDEMNITY COMPANY

  	
   

  	
  $

  	
  125,000,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  GENERAL RE LIFE CORPORATION

  	
   

  	
  $

  	
  25,000,000

  	
   

  



 

















 


Exhibit A


 


Form of
Indenture


 

















 


Exhibit B


 


Form of
Registration Rights Agreement