AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 5, 2003
REGISTRATION NO.
===============================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
SEALED AIR CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Delaware 65-0654331
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
H. Katherine White
Sealed Air Corporation
Park 80 East Park 80 East
Saddle Brook, New Jersey 07663 Saddle Brook, New Jersey 07663
(201) 791-7600 (201) 791-7600
(Address, including zip code, (Name, address, including zip
and telephone number, including code, and telephone number,
area code, of registrant's including area code, of
principal executive offices) agent for service)
copy to:
Robert M. Chilstrom, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036-6522
(212) 735-3000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As
soon as practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [_]
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CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(1) UNIT(2) PRICE REGISTRATION FEE
- --------------------------- ------------- ------------------ ------------------ ----------------
Common Stock, $0.10 par
value per share 6,160,708 $48.40 $298,178,267.20 $24,122.62
(1) Pursuant to Rule 416 under the Securities Act, this registration
statement also covers such additional shares as may hereafter be
offered or issued to prevent dilution resulting from stock splits,
stock dividends, recapitalizations or certain other capital
adjustments.
(2) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457(c) under the Securities Act of
1933, as amended, based on the average ($48.40) of the high and low
prices ($48.75 and $48.05, respectively) for a share of common stock as
reported on the New York Stock Exchange on August 28, 2003.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION
8(A), MAY DETERMINE.
This preliminary prospectus is not complete and may be changed. These shares
may not be sold until the registration statement filed with the U.S.
Securities and Exchange Commission is effective. This preliminary prospectus
is not an offer to sell nor does it seek an offer to buy these shares in any
jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED SEPTEMBER 5, 2003
PRELIMINARY PROSPECTUS
[LOGO]
SEALED AIR CORPORATION
6,160,708 SHARES OF COMMON STOCK
This prospectus relates to the offer and sale from time to time of up
to 6,160,708 shares of common stock, $0.10 par value per share, of Sealed Air
Corporation, a Delaware corporation, by the selling stockholders named herein,
plus such additional shares of common stock as may be issuable pursuant to
anti-dilution adjustments, in the manner and under the circumstances described
under "Plan of Distribution." Such shares of common stock are issuable upon
the conversion of our 3% Convertible Senior Notes due 2033 (the "Notes"). We
have agreed with the selling stockholders that we will pay all expenses
incident to the registration of such shares of common stock under the
Securities Act of 1933, as amended.
The selling stockholders may sell the shares of common stock described
in this prospectus in a number of different ways and at varying prices. For
additional information on the methods of sale, you should refer to the section
entitled "Plan of Distribution" beginning on page 11.
Our common stock is listed for trading on the New York Stock Exchange
under the symbol "SEE." On September 4, 2003, the last reported sale price
of the common stock was $49.70 per share.
Our corporate offices are located at Park 80 East, Saddle Brook, New
Jersey 07663. Our telephone number is (201) 791-7600.
---------------
INVESTING IN OUR COMMON STOCK INVOLVES RISKS. SEE THE SECTION ENTITLED
"RISK FACTORS" BEGINNING ON PAGE 1.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR
PASSED UPON THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
---------------
The date of this prospectus is , 2003.
TABLE OF CONTENTS
PAGE
SECTION TITLE NUMBER
- ------------- ------
Risk Factors.......................................................... 1
Cautionary Statement Regarding Forward-Looking Statements............. 3
Business.............................................................. 5
Use of Proceeds....................................................... 5
Selling Stockholders.................................................. 5
Plan of Distribution.................................................. 11
Legal Matters......................................................... 12
Experts............................................................... 12
Incorporation of Documents by Reference............................... 12
Where You Can Find More Information................................... 13
---------------
YOU SHOULD RELY ONLY ON THE INFORMATION INCORPORATED BY REFERENCE OR
PROVIDED IN THIS PROSPECTUS AND ITS SUPPLEMENT(S). WE HAVE NOT AUTHORIZED
ANYONE TO PROVIDE YOU WITH DIFFERENT INFORMATION. YOU SHOULD NOT ASSUME THAT
THE INFORMATION IN THIS PROSPECTUS OR ANY SUPPLEMENT IS ACCURATE AS OF ANY
DATE OTHER THAN THE DATE ON THE FRONT OF THOSE DOCUMENTS. THIS PROSPECTUS DOES
NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY THE
SECURITIES IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE
SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION.
RISK FACTORS
You should carefully consider the risks described below, in addition
to the other information contained in this prospectus and the documents
incorporated by reference in this prospectus, before making an investment
decision. The risks described below are not the only ones we face. Additional
risks described below under "Cautionary Statement Regarding Forward-Looking
Statements" and other risks that are not currently known to us or that we
currently do not consider to be material may also impair our business
operations and financial condition.
Our business, financial condition or results of operations could be
materially adversely affected by any of these risks. The trading price of our
common stock could decline due to any of these risks, and you may lose all or
part of your investment.
This prospectus also contains or incorporates by reference
forward-looking statements that involve risks and uncertainties. Our actual
results could differ materially from those anticipated in these
forward-looking statements as a result of certain factors, including the risks
faced by us described below and elsewhere in this prospectus or in documents
incorporated by reference in this prospectus.
IF THE SETTLEMENT OF THE ASBESTOS LITIGATION THAT WE HAVE AGREED TO IN
PRINCIPLE IS NOT APPROVED AND IMPLEMENTED, WE WILL NOT BE OBLIGATED TO MAKE
THE PAYMENTS REQUIRED UNDER THE SETTLEMENT AGREEMENT UPON THE EFFECTIVENESS OF
THE BANKRUPTCY PLAN OF REORGANIZATION OF W.R. GRACE & CO. ("NEW GRACE"), IN
WHICH EVENT WE WILL NOT BE RELEASED FROM THE ASBESTOS-RELATED CLAIMS MADE
AGAINST US.
On November 27, 2002, we reached an agreement in principle with the
Official Committee of Asbestos Personal Injury Claimants and the Official
Committee of Asbestos Property Damage Claimants (the "Committees") prosecuting
the claims against us and our wholly owned subsidiary Cryovac, Inc. to resolve
all current and future asbestos-related claims arising from the Cryovac
Transaction. The "Cryovac Transaction" was a multi-step transaction, completed
on March 31, 1998, which brought the Cryovac packaging business and the former
Sealed Air Corporation under the common ownership of the Company. The
settlement will also resolve all fraudulent transfer claims, as well as
indemnification claims by Fresenius Medical Care Holdings, Inc. and affiliated
companies, that had been made against us in connection with the Cryovac
Transaction. On the same day, the court entered an order confirming that an
amicable resolution of the disputes among the parties had been reached and
that counsel for the Company and the Committees had agreed and bound the
parties to the terms of this agreement in principle. Our Board of Directors
approved this agreement in principle on December 3, 2002, and we were advised
that the Committees approved this agreement in principle as of December 5,
2002. We recorded a charge of $850.1 million reflecting our liability for this
settlement and related expenses in our consolidated statement of operations
for the year ended December 31, 2002. The parties are jointly engaged in the
process of drafting a definitive settlement agreement consistent with the
terms of the agreement in principle. Once signed by the appropriate parties,
the settlement agreement will be presented to the court for approval and will
eventually be incorporated into New Grace's plan of reorganization and,
assuming approval by New Grace's creditors as part of the approval of the plan
of reorganization, will then be implemented.
The settlement, upon approval and implementation in the New Grace
bankruptcy, will provide that, upon the effective date of New Grace's plan of
reorganization and our delivery of the shares and payment of the cash provided
for by the settlement agreement, all present and future asbestos-related
claims against us and our affiliates that arise from alleged asbestos
liabilities of New Grace and its affiliates (including former affiliates that
became our affiliates through the Cryovac Transaction) will be channeled to
and become the responsibility of one or more trusts to be established under
Section 524(g) of the Bankruptcy Code as part of New Grace's plan of
reorganization. The settlement will provide that we and our affiliates will
receive releases of all such claims. As a condition to our obligation to make
the payments required by the settlement, New Grace's plan of reorganization
must be consistent with the terms of the settlement, including provisions for
the trusts and releases referred to above and for an injunction barring the
prosecution of any asbestos-related claims against us and our affiliates. It
is expected that the order approving the settlement agreement will also
provide that the stay of proceedings brought against us outside the bankruptcy
court alleging liability for asbestos related claims will continue through the
effective date of New Grace's plan of reorganization, after which we will be
released from the liabilities asserted in those proceedings and their
continued prosecution against us will be enjoined. If the conditions to our
obligations to make payments and otherwise perform the settlement agreement
are not satisfied or waived by us, we are not obligated to make those
payments. If we do not make those payments, the settlement agreement will not
be effective and we will not be released from the claims made against us.
OUR SUBSIDIARIES HOLD SUBSTANTIALLY ALL OF OUR ASSETS AND LIABILITIES
AND CONDUCT SUBSTANTIALLY ALL OF OUR OPERATIONS, WHICH COULD RESTRICT OUR
ABILITY TO PAY DIVIDENDS.
We conduct substantially all of our business through two direct
wholly-owned subsidiaries, Cryovac, Inc. and Sealed Air Corporation (US).
These two subsidiaries directly and indirectly own substantially all of the
assets of our business and conduct operations themselves and through other
subsidiaries around the globe. Therefore, we depend on distributions or
advances from our subsidiaries to meet our debt service and other obligations
and to pay dividends, if any, with respect to shares of our common stock.
Contractual provisions, laws or regulations to which we or any of our
subsidiaries may become subject, as well as any subsidiary's financial
condition and operating requirements, may reduce funds available for
dividends, service of our indebtedness and general corporate purposes.
THE PRICE OF OUR COMMON STOCK HISTORICALLY HAS EXPERIENCED SIGNIFICANT
PRICE AND VOLUME FLUCTUATIONS, WHICH MAY MAKE IT DIFFICULT FOR YOU TO RESELL
THE COMMON STOCK, AND THE SALE OF SUBSTANTIAL AMOUNTS OF OUR COMMON STOCK
COULD ADVERSELY AFFECT THE PRICE OF OUR COMMON STOCK.
The market price of our common stock historically has experienced and
may continue to experience significant price and volume fluctuations similar
to those experienced by the broader stock market in recent years. Generally,
the fluctuations experienced by the broader stock market have affected the
market prices of securities issued by many companies for reasons unrelated to
their operating performance and may adversely affect the price of our common
stock. In addition, our announcements of our quarterly operating results,
future developments in the settlement of the asbestos litigation against us,
changes in general conditions in the economy or the financial markets and
other developments affecting us, our affiliates or our competitors could cause
the market price of our common stock to fluctuate substantially.
In addition, the sale of substantial amounts of our common stock could
adversely affect its price. As of June 30, 2003, 1,114,647 shares of common
stock were reserved for issuance under our contingent stock plan and
directors' stock plan and options to purchase 293,639 shares of our common
stock were outstanding (all of which were exercisable). In addition, as of
June 30, 2003, 9 million shares of our common stock were reserved for issuance
pursuant to the settlement of the asbestos litigation upon the effectiveness
of a plan of reorganization in the bankruptcy of New Grace. The sale or the
availability for sale of a large number of shares of our common stock in the
public market could adversely affect the price of our common stock.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
Certain statements that we have made in this prospectus and in the
documents incorporated by reference herein, and in future oral and written
statements that we make may be forward-looking. These statements include
comments as to our beliefs and expectations as to future events and trends
affecting our business, our results of operations and our financial condition.
These forward-looking statements are based upon our management's current
expectations concerning future events and discuss, among other things,
anticipated future performance and future business plans. Forward-looking
statements are identified by such words and phrases as "expects," "intends,"
"believes," "will continue," "plans to," "could be," "estimates" and similar
expressions. Forward-looking statements are necessarily subject to risks and
uncertainties, many of which are outside our control, which could cause actual
results to differ materially from such statements.
We recognize that we are subject to a number of risks and
uncertainties that may affect our future performance, such as:
o economic, political, business and market conditions in the
geographic areas in which we conduct business;
o factors affecting the customers, industries and markets that use
our packaging materials and systems;
o competitive factors;
o production capacity;
o raw material availability and pricing;
o changes in energy-related expenses;
o disruptions in energy supply or communications;
o changes in the value of foreign currencies against the U.S.
dollar;
o changes in interest rates, credit availability and ratings;
o the effect on us of new pronouncements by accounting
authorities;
o our ability to hire, develop and retain talented employees
worldwide;
o our development and commercialization of successful new
products;
o our accomplishments in entering new markets and acquiring and
integrating new businesses;
o our access to financing and other sources of capital;
o the success of our key information systems projects;
o the magnitude and timing of our capital expenditures;
o our inventory management proficiency;
o changes in our relationships with customers and suppliers;
o the approval and implementation of a definitive settlement
agreement with the Official Committee of Asbestos Personal
Injury Claimants, the Official Committee of Asbestos Property
Damage Claimants and any other appropriate parties in the
New Grace bankruptcy proceeding;
o other effects on us of the bankruptcy filing by New Grace and
its subsidiaries;
o other legal proceedings and claims (including environmental
matters) involving us;
o the effects of animal and food-related health issues (including
bovine spongiform encephalopathy (BSE or "mad-cow" disease) and
foot-and-mouth disease) as well as other health issues affecting
trade;
o acts and effects of war or terrorism; and
o changes in domestic or foreign laws, rules or regulations, or
governmental or agency actions (including the effects of federal
asbestos legislation, if enacted).
Except as required by the federal securities laws, we do not undertake
any obligation to update publicly or revise any forward-looking statement,
whether as a result of new information, future events or otherwise.
BUSINESS
Sealed Air Corporation is a holding company that, operating through
its subsidiaries, is engaged in the manufacture and sale of a wide range of
food, protective and specialty packaging products.
We conduct substantially all of our business through two direct
wholly-owned subsidiaries, Cryovac, Inc. and Sealed Air Corporation (US).
These two subsidiaries directly and indirectly own substantially all of the
assets of our business and conduct operations themselves and through
subsidiaries around the globe. References in this discussion of our business
include, collectively, the Company and its subsidiaries, except where the
context indicates otherwise.
USE OF PROCEEDS
The shares of common stock offered hereby are being registered for
resale by the selling stockholders identified in this prospectus. See "Selling
Stockholders." We will not receive any proceeds from the sale of such shares
by the selling stockholders. All net proceeds from the sale of such shares
will go to the stockholders that offer and sell their shares.
SELLING STOCKHOLDERS
We issued the Notes in the aggregate principal amount of $431.25
million in July 2003 in transactions carried out pursuant to Rule 144A under
the Securities Act of 1933, as amended (the "Securities Act"). The Notes are
restricted securities that are not covered by this prospectus and are not
otherwise registered under the Securities Act. Accordingly, the Notes may not
be offered or sold except in compliance with the registration requirements of
the Securities Act and all other applicable securities laws, or pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act and any other applicable securities laws.
Holders of the Notes may convert the Notes into 6,160,708 shares of
our common stock at a conversion rate of 14.2857 shares per $1,000 principal
amount of the Notes (which is equal to a conversion price of $70.00 per
share), subject to anti-dilution adjustments as described below (the
"Conversion Rate"). The 6,160,708 shares of common stock covered by this
Prospectus, plus such additional shares of common stock as may be issuable
pursuant to anti-dilution adjustments, are issuable upon the conversion of the
Notes by the selling stockholders and, following their issuance, may be sold
by the selling stockholders in the manner and under the circumstances
described under "Plan of Distribution."
At the time the Notes were issued, we entered into a registration
rights agreement with the initial purchasers of the Notes that provided that
we would file the registration statement, of which this prospectus forms a
part, to register for resale by holders of the Notes all the underlying shares
of our common stock that they would acquire upon conversion of the Notes if
they have requested to be shown as selling stockholders covered by the
registration statement. To the extent that holders of Notes have not requested
us to include in such registration statement shares of common stock issuable
upon conversion of Notes that they hold, we are obligated to do so promptly
following their request to do so. Under the registration rights agreement, we
agreed to indemnify the selling stockholders and each person, if any, who
controls the selling stockholders against certain liabilities, including
liabilities under the Securities Act, and the selling stockholders have agreed
to indemnify us, our directors, our officers and each person, if any, who
controls us against certain liabilities, including liabilities under the
Securities Act.
The Notes are convertible before the close of business on June 30,
2033 only under the following circumstances: (1) during any calendar quarter
commencing after September 30, 2003, if the closing sale price of the
Company's common stock exceeds 120% of the conversion price for at least 20
trading days in the 30 consecutive trading days ending on the last trading day
of the preceding calendar quarter (which is currently equivalent to a closing
sale price of $84.00 per share); (2) during any period in which (i) the
long-term credit rating assigned to the Notes by Standard & Poor's Rating
Services, a division of the McGraw-Hill Companies ("Standard and Poor's") or
Moody's Investors Services, Inc. ("Moody's") is lower than BB+ or Ba2,
respectively, (ii) either Standard & Poor's or Moody's no longer rates the
Notes or has withdrawn or suspended such rating, or (iii) the Notes are not
assigned a rating by both Standard & Poor's and Moody's; (3) during the five
business day period immediately after any five consecutive trading day period
in which the trading price per $1,000 principal amount of Notes for each day
of that period was less than 98% of the product of the closing sale price of
our common stock and the Conversion Rate; provided, however, the Notes are not
so convertible after June 30, 2028 if on any trading day during such five day
measurement period the closing sale price of shares of our common stock was
between 100% and 120% of the then current conversion price (which will equal
$1,000 divided by the Conversion Rate as of such date); (4) if the Notes have
been called for redemption; (5) if we distribute to all holders of our common
stock (i) rights entitling them to purchase, for a period expiring within 45
days, our common stock at less than the current market price or (ii) assets,
debt securities or certain rights to purchase our securities, which
distribution has a per share value exceeding 5% of the closing sale price of
our common stock on the day preceding the declaration date for such
distribution; or (6) in the event we are a party to a consolidation, merger,
binding share exchange or sale of all or substantially all of our assets, in
each case pursuant to which our common stock would be converted into cash,
securities or other property.
The Conversion Rate will be adjusted if we:
o issue common stock as a dividend or distribution on our common
stock;
o issue to all holders of common stock rights or warrants to
purchase our common stock at a price per share that is less than
the then current market price of our common stock;
o subdivide or combine our common stock;
o distribute to all holders of our common stock shares of our
capital stock, evidences of indebtedness or assets, including
cash and securities but excluding rights, warrants and common
stock dividends or distributions specified above; provided that
if we distribute capital stock of, or similar equity interests
in, a subsidiary or other business unit of ours, the Conversion
Rate will be adjusted based on the market value of the
securities so distributed relative to the market value of our
common stock, in each case based on the average closing sales
prices of those securities for the 10 trading days commencing on
and including the fifth trading day after the date on which
"ex-dividend trading" commences for such distribution on the New
York Stock Exchange or such other national or regional exchange
or market on which the securities are then listed or quoted; and
o or one of our subsidiaries, make a payment in respect of a
tender offer or exchange offer for our common stock to the
extent that the cash and value of any other consideration
included in the payment per share of common stock exceeds the
current market price per share of common stock on the trading
day next succeeding the last date on which tenders or exchanges
may be made pursuant to such tender or exchange offer.
This prospectus also covers any additional shares of common stock that
become issuable in connection with any of the foregoing events.
The following table is based on information furnished to us by or on
behalf of the selling stockholders as of September 4, 2003. For purposes of
presenting beneficial ownership data in the table, we have assumed that the
selling stockholders will convert all of the Notes that they beneficially own
and sell all of the shares of common stock issued upon conversion of such
Notes and that no selling stockholder will acquire additional Notes or shares
of common stock issuable upon the conversion thereof after the date on the
cover page of this prospectus.
As of the date set forth on the cover of this prospectus, none of the
Notes has been converted into our common stock. We do not know if, when, or in
what amount the selling stockholders may convert any Note into common stock or
offer such common stock for resale. There can be no assurance that any of the
conditions that would permit conversion of the Notes will be satisfied or
that, if such conditions are satisfied, the selling stockholders will convert
any of the Notes that they beneficially own or sell any or all of the shares
of common stock acquired upon conversion of such Notes that are covered by
this prospectus.
Since September 4, 2003, each selling stockholder identified below
may have sold, transferred or otherwise disposed of all or a portion of the
Notes that such selling stockholder beneficially owns in a transaction exempt
from the registration requirements of the Securities Act. Information
concerning the selling stockholders may change from time to time, and any
changed information will be set forth in supplements to this prospectus to the
extent required by the rules and regulations under the Securities Act. In
addition, as discussed above, the Conversion Rate, and therefore the number of
shares of our common stock issuable upon conversion of the Notes, is subject
to adjustment. Accordingly, the number of shares of common stock issuable upon
such conversion may increase or decrease.
The following table sets forth as of September 4, 2003:
o the names of the selling stockholders who have requested that
their shares be included in this registration statement by
completing the questionnaire required under the registration
rights agreement (we will update this table following receipt of
further notification by the selling stockholders);
o the number of shares of common stock issuable upon the
conversion of the Notes that are beneficially owned by each of
the selling stockholders;
o the number of shares of common stock issuable upon the
conversion of the Notes that are being offered by the selling
stockholders in this prospectus; and
o the number of shares of common stock held by the selling
stockholders as a group.
Unless set forth in the following table or the footnotes thereto, to
our knowledge, none of the selling stockholders has or since September 4,
2000 has had, any material relationship with us or any of our predecessors or
affiliates, and none of the selling stockholders beneficially owns, as of
September 4, 2003, in excess of 1% of our outstanding common stock.
As of August 31, 2003, there were 84,934,205 shares of our common
stock issued and outstanding.
COMMON
COMMON STOCK COMMON STOCK TO BE
BENEFICIALLY STOCK BENEFICIALLY PERCENTAGE
OWNED AS OF OFFERED IN OWNED AFTER OF ALL
SEPTEMBER 4, THIS THIS COMMON
NAME 2003(1) PROSPECTUS(1) OFFERING(1) STOCK(2)
---- ------- ------------- ----------- --------
Advisory Convertible Arbitrage Fund 1 L.P.(3) 14,285 14,285 -- --
Arbitex Master Fund, L.P.(4) 671,427 671,427 -- --
Aviva Life Insurance Co.(5) 28,571 28,571 -- --
Banc of America Securities LLC 185,714 185,714 -- --
Bank of America Pension Plan(6) 42,857 42,857 -- --
Barclays Global Investors Limited(6) 3,571 3,571 -- --
Bear Stearns Securities Corp. 128,571 128,571 -- --
Black Diamond Convertible Offshore LDC(7) 31,114 31,114 -- --
Black Diamond Offshore Ltd. (7) 17,357 17,357 -- --
BP Amoco PLC Master Trust (8) 5,871 5,871 -- --
Consulting Group Capital Markets Fund(6) 14,285 14,285 -- --
Convertible Securities Fund (9) 857 857 -- --
Credit Suisse First Boston Europe Limited 996 996 -- --
Deephaven Domestic Convertible Trading Ltd. 105,642 105,642 -- --
Deep Rock & Co. (6) 52,857 52,857 -- --
Double Black Diamond Offshore LDC (7) 91,071 91,071 -- --
Gaia Offshore Master Fund Ltd. 17,142 17,142 -- --
General Motors Welfare Benefit Trust(6) 17,142 17,142 -- --
GMAM Group Pension Trust (6) 61,428 61,428 -- --
Guggenheim Portfolio Co. XV, LLC (10) 7,142 7,142 -- --
Hotel Union and Hotel Industry of Hawaii
Pension Plan (8) 2,285 2,285 -- --
JMG Capital Partners LP (11) 139,285 139,285 -- --
JMG Triton Offshore Fund LTD (12) 139,285 139,285 -- --
John Deere Pension Trust (6) 33,571 33,571 -- --
Lyxor Master Fund 28,571 28,571 -- --
Lyxor/Gaia II Fund Ltd 5,714 5,714 -- --
Morgan Stanley Convertible Securities Trust 28,571 28,571 -- --
Nations Convertible Securities Fund (9) 141,999 141,999 -- --
NMS Services (Cayman), Inc.(13) 71,428 71,428 -- --
Nomura Securities Intl Inc. 28,571 28,571 -- --
Oppenheimer Convertible Securities Fund 2,857 42,857 -- --
People Benefit Life Insurance Company Teamsters(6) 77,142 77,142 -- --
Quattro Fund Limited 31,999 31999 -- --
Ramius Capital Group, LLC (10) 7,142 7,142 -- --
Ramius Master Fund, LTD (10) 46,428 46,428 -- --
Ramius Partners II, LP (10) 3,571 3,571 -- --
Ramius, LP (10) 1,428 1,428 -- --
RBC Alternative Assets LP (14) 2,857 2,857 -- --
RCG Baldwing, LP (10) 5,714 5,714 -- --
RCG Latitude Master Fund, LTD (10) 46,428 46,428 -- --
RCG Multi Strategy Master Fund, LTD (10) 14,285 14,285 -- --
Retail Clerics Pension Trust (6) 58,571 58,571 -- --
Retail Clerics Pension Trust #2 (6) 50,714 50,714 -- --
S.A.C. Capital Associates, LLC (15) 21,428 21,428 -- --
Sage Capital 54,285 54,285 -- --
Sphinx Convertible Arb Fund SPC (8) 3,613 3,613 -- --
SSI Blended Market Neutral L.P. (8) 3,671 3,671 -- --
St. Albans Partners LTD. (6) 93,571 93,571 -- --
The Coast Fund, L.P. (16) 107,142 107,142 -- --
Thrivent Financial for Lutherans 35,714 35,714 -- --
Topanga XI (13) 5,714 5,714 -- --
Van Kampen Harbor Fund (17) 28,571 28,571 -- --
Viacom Inc. Pension Plan Master Trust (8) 199 199 -- --
White River Securities L.L.C. (18) 128,571 128,571 -- --
Worldwide Transactions Ltd (7) 3,314 3,314 -- --
WPG Convertible Arbitrage Overseas Master Fund (19) 11,428 11,428 -- --
WPG MSA Convertible Arbitage Fund (19) 2,857 2,857 -- --
Xavez Convertible Arbitrage 5 Fund (10) 10,714 10,714 -- --
Yield Strategies Fund I, L.P. (6) 24,285 24,285 -- --
Zurich Institutional Benchmark Management 7,999 7,999 -- --
Zurich Institutional Benchmarks 14,428 14,428 -- --
Master Fund Ltd.(8)
TOTAL 3,038,106 3,038,106 -- --
- ----------------
1. For each selling stockholder, this number represents the number of
shares of common stock that would be beneficially owned by such
selling stockholder after the conversion of the Notes beneficially
owned by such selling stockholder as of September 4, 2003, assumes
that the selling stockholders will sell all shares of common stock
offered by them under this prospectus, and further assumes that all of
the Notes have been converted.
2. For each selling stockholder, this number represents the percentage of
common stock that would be owned by such selling stockholder after
completion of the offering, based on the number of shares of common
stock outstanding as of September 4, 2003 and assuming all the
Notes beneficially owned by such selling stockholder as of September
4, 2003, have been converted.
3. We have been advised that Advisory Convertible Arbitrage L.L.C. is
affiliated with American Express Company.
4. We have been advised that Mr. Clark Hunt and Mr. Jonathan Bren may be
deemed the beneficial owners of these shares by virtue of their voting
control and investment discretion with respect to these shares.
5. We have been advised that Mr. David Clott may be deemed the beneficial
owner of these shares by virtue of his voting control and investment
discretion with respect to these shares.
6. We have been advised that Camden Asset Management may be deemed the
beneficial owner of these shares by virtue of its voting control and
investment discretion with respect to these shares.
7. We have been advised that Mr. Clint D. Carlson may be deemed the
beneficial owner of these shares by virtue of his control of Carlson
Capital, L.P., which has voting control and investment discretion with
respect to these shares.
8. We have been advised that Mr. John Gottfurcht, Mr. George Douglas and
Ms. Amy Jo Gottfurcht may be deemed the beneficial owners of these
shares by virtue of their control of SSI Investment Management, which
has voting control and investment discretion with respect to these
shares.
9. We have been advised that these funds are affiliated with Banc of
America Capital Management, LLC.
10. We have been advised that Mr. Alex Adair may be deemed the beneficial
owner of these shares by virtue of his voting control and investment
discretion with respect to these shares.
11. We have been advised that JMG Capital Partners, L.P. is a California
limited partnership and of the following additional information: Its
general partner is JMG Capital Management, LLC, a Delaware limited
liability company and an investment adviser registered with the
Securities and Exchange Commission. JMG Capital Partners, L.P. has
voting and dispositive power over JMG Capital Partners, L.P.'s
investments, including the registrable securities. The equity
interests of JMG Capital Management, LLC are owned by JMG Capital
Management, Inc., a Delaware corporation, and Asset Alliance Holding
Corp., a Delaware corporation. Jonathan M. Glaser is the executive
officer and director of JMG Capital Management Inc. and has sole
investment discretion over JMG Capital Partners, L.P.'s portfolio
holdings.
12. We have been advised that JMG Triton Offshore Fund, LTD is an
international business company under the laws of the British Virgin
Islands and of the following additional information: The fund's
investment manager is Pacific Assets Management LLC, a Delaware
limited liability company. Pacific Assets Management LLC is an
investment adviser registered with the Securities and Exchange
Commission and has voting and dispositive power over the fund's
investments, including the registrable securities. The equity interest
of the Pacific Assets Management LLC are owned by Pacific Capital
Management, Inc., a Delaware corporation, and Asset Alliance Holding
Corp., a Delaware corporation. The equity interests of Pacific Capital
Management, Inc. are owned by Messrs. Roger Richter, Jonathan M.
Glaser and Daniel A. David and Messrs. Glaser and Richter have sole
investment discretion over the fund's portfolio holdings.
13. We have been advised that NMS Services (Cayman) Inc. is an indirect
wholly owned subsidiary of Bank of America Corporation. Topanga XI is
a wholly-owned subsidiary of NMS Services (Cayman) Inc.
14. We have been advised that RBC Alternative Assets LP is a wholly owned
subsidiary of RBC Alternative Assets Inc., which is an indirect wholly
owned subsidiary of the Royal Bank of Canada.
15. We have been advised that S.A.C. Capital Advisors, LLC, a Delaware
limited liability company and S.A.C. Capital Management, LLC, a
Delaware limited liability company share all investment and voting
power with respect to the securities held by S.A.C. Capital
Associates, LLC, and that Mr. Steven A. Cohen controls both entities.
16. We have been advised that David E. Smith and Christopher D. Petitt may
be deemed the beneficial owners of these shares by virtue of their
control of Coast Offshore (Cayman) Management LTD, which has voting
control and investing discretion with respect to these shares.
17. We have been advised that Van Kampen Asset Management Inc. is Van
Kampen Harbor Fund's investment advisor and it has discretionary
authority over the fund's portfolio and that Van Kampen Asset
Management is affiliated with Morgan Stanley & Co.
18. We have been advised that Messrs. Yan Erlikh and David Liebowitz may
be deemed the beneficial owners of these shares by virtue of their
voting control and investment discretion with respect to these shares.
19. We have been advised that Ms. Sheri Kaplan may be deemed the
beneficial owner of these shares by virtue of her voting control and
investment discretion with respect to these shares.
PLAN OF DISTRIBUTION
We are registering the shares of common stock covered by this
prospectus for resale by the selling stockholders. The term "selling
stockholders" as used in this section of the prospectus refers to the selling
stockholders listed above, or their pledgees, donees, transferees, or any of
their successors in interest.
Following conversion of the Notes, such shares of common stock may be
sold from time to time directly by the selling stockholders or, alternatively,
through underwriters, broker-dealers or agents. If shares of the common stock
obtained upon conversion are sold through underwriters, broker-dealers or
agents, the selling stockholders will be responsible for underwriting
discounts or commissions or agent's commissions. Such common stock may be sold
in one or more transactions at fixed prices, at prevailing market prices at
the time of sale, at varying prices determined at the time of sale or at
negotiated prices. Such sales may be effected in transactions (which may
involve block transactions) (i) on any national securities exchange or
quotation service on which the common stock may be listed or quoted at the
time of sale, (ii) in the over-the-counter market, (iii) in transactions
otherwise than on such exchanges or services or in the over-the-counter
market, or (iv) through the writing of options. In connection with sales of
the common stock or otherwise, the selling stockholders may enter into hedging
transactions with broker-dealers, which may in turn engage in short sales of
the common stock in the course of hedging positions they assume. The selling
stockholders may also sell common stock short and deliver common stock to
close out short positions, or loan or pledge common stock to broker-dealers
that in turn may sell such securities.
In no event will any distribution of the shares of common stock
covered by this prospectus take the form of an underwritten offering without
the prior agreement of the Company.
Because the selling stockholders may be deemed to be "underwriters"
within the meaning of Section 2(11) of the Securities Act, the selling
stockholders will be subject to the prospectus delivery requirements of the
Securities Act, which may include delivery through the facilities of the New
York Stock Exchange pursuant to Rule 153 under the Securities Act. We have
informed the selling stockholders that the anti-manipulative provisions of
Regulation M promulgated under the Exchange Act may apply to their sales in
the market.
The selling stockholders also may resell all or a portion of the
shares in open market transactions in reliance upon and in compliance with
Rule 144 under the Securities Act.
Upon being notified by a selling stockholder that any material
arrangement has been entered into with a broker-dealer for the sale of shares
through a block trade, special offering, exchange distribution or secondary
distribution or a purchase by a broker or dealer, we will file a supplement to
this prospectus, if required, pursuant to Rule 424(b) under the Securities
Act, disclosing:
o the name of such selling stockholder and of the participating
broker-dealer(s);
o the number of shares involved;
o the price at which such shares were sold;
o the commissions paid or discounts or concessions allowed to such
broker-dealer(s), where applicable;
o that such broker-dealer(s) did not conduct any investigation to
verify the information set out or incorporated by reference in
this prospectus; and
o any other facts material to the transaction.
LEGAL MATTERS
The validity of the common stock to be offered by this prospectus is
being passed on for us by Skadden, Arps, Slate, Meagher & Flom LLP.
EXPERTS
The consolidated financial statements and the related financial
statement schedule of Sealed Air Corporation as of December 31, 2002 and 2001,
and for each of the years in the three-year period ended December 31, 2002,
have been incorporated by reference herein in reliance upon the report of KPMG
LLP, independent accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing. The audit report
covering the December 31, 2002, consolidated financial statements refers to
the Company's adoption of Statement of Financial Accounting Standards No. 142,
"Goodwill and Other Intangible Assets," as of January 1, 2002.
INCORPORATION OF DOCUMENTS BY REFERENCE
The Securities and Exchange Commission (the "SEC") allows us to
"incorporate by reference" certain of our publicly filed documents into this
prospectus, which means that information included in these documents is
considered part of this prospectus. The following documents filed by us with
the SEC are incorporated by reference into this prospectus:
o our annual report on Form 10-K for the year ended December 31,
2002;
o our quarterly reports on Form 10-Q for the quarters ended March
31, 2003 and June 30, 2003;
o our Proxy Statement on Schedule 14A for our 2003 annual meeting
of stockholders;
o our current reports on Form 8-K filed on April 9, 2003, April 14,
2003, April 23, 2003, June 27, 2003, July 3, 2003 and July 23,
2003; and
o the description of our common stock contained in our Joint Proxy
Statement/Prospectus filed as part of our Registration Statement
on Form S-4, declared effective on February 13, 1998.
All documents filed by us with the SEC pursuant to Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), after the date of this prospectus and prior to the
termination of the offering covered by this prospectus will be deemed to be
incorporated by reference into this prospectus and to be a part of the
prospectus from the date of filing of such documents. Any statement contained
in this prospectus or in any document incorporated or deemed to be
incorporated by reference into this prospectus shall be deemed to be modified
or superseded for purposes of this prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is or
is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this prospectus.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC under the Exchange Act. The registration
statement of which this prospectus forms a part and these reports, proxy
statements and other information can be inspected and copied at the Public
Reference Room maintained by the SEC at Room 1024, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the SEC's regional offices at 500
West Madison Street, Suite 1400, Chicago, Illinois 60661 and at 233 Broadway,
New York, New York 10279. Copies of these materials may also be obtained from
the SEC at prescribed rates by writing to the Public Reference Room maintained
by the SEC at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549. You may obtain information on the operation of the Public
Reference Room by calling the SEC at 1-800-SEC-0330.
We have filed with the SEC a registration statement on Form S-3 under
the Securities Act with respect to this offering. This prospectus, which forms
a part of the registration statement, does not contain all the information
included in the registration statement and the attached exhibits.
The SEC maintains an Internet site at http://www.sec.gov that contains
reports, proxy and information statements, and other information regarding us.
The reports, proxy and information statements, and other information about us
can be downloaded from the SEC's website and can also be inspected and copied
at the offices of the New York Stock Exchange, Inc., 11 Wall Street, New York,
New York 10005.
We will provide, without charge to each person, including any
beneficial owner, to whom this prospectus is delivered, upon written or oral
request of such person, a copy of any and all of the information that has been
or may be incorporated by reference in this prospectus, other than exhibits to
such documents (unless such exhibits are specifically incorporated by
reference into such documents). Such requests should be directed to Director
of Corporate Communications, Sealed Air Corporation, Park 80 East, Saddle
Brook, New Jersey 07663, telephone number (201) 791-7600.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses payable by the
registrant in connection with the sale of the shares of common stock being
registered. All amounts are estimates except the Securities and Exchange
Commission registration fee.
Legal fees and expenses $ 50,000.00
Accounting fees and expenses $ 25,000.00
SEC registration fee $ 24,122.62
Miscellaneous expenses $ 5,000.00
------------
Total $104,122.62
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware
(the "General Corporation Law") provides that: (1) under certain circumstances
a corporation may indemnify a director or officer made party to, or threatened
to be made party to, any civil, criminal, administrative or investigative
action, suit or proceeding (other than an action by or in the right of the
corporation) because such person is or was a director, officer, employee or
agent of the corporation, or because such person is or was so serving another
enterprise at the request of the corporation, against expenses, judgments,
fines and amounts paid in settlement reasonably incurred by such person in
connection with such action, suit or proceeding, if such person acted in good
faith and in a manner such person reasonably believed to be in or not opposed
to the best interests of the corporation, and, with respect to criminal cases,
had no reasonable cause to believe such person's conduct was unlawful; (2)
under certain circumstances a corporation may indemnify a director or officer
made party to, or threatened to be made party to, any action or suit by or in
the right of the corporation for judgment in favor of the corporation because
such person is or was a director, officer, employee or agent of the
corporation, or because such person is or was so serving another enterprise at
the request of the corporation, against expenses reasonably incurred by such
person in connection with the defense or settlement of such action or suit if
such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the corporation; and
(3) a director or officer shall be indemnified by the corporation against
expenses reasonably incurred by such person in connection with and to the
extent that such person has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in the preceding
clauses, or in defense of any claim, issue or matter therein.
Under Article ELEVENTH of the Company's Amended and Restated
Certificate of Incorporation and Article 8 of the Company's By-Laws,
indemnification of directors and officers is provided for to the fullest
extent permitted under the General Corporation Law. Article TWELFTH of the
Company's Amended and Restated Certificate of Incorporation eliminates the
liability of directors for monetary damages for breach of fiduciary duty as
directors, except for liability (1) for any breach of the director's duty of
loyalty to the Corporation or its stockholders, (2) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation
of law, (3) under Section 174 of the General Corporation Law, or (4) for any
transaction from which the director derived an improper personal benefit. The
General Corporation Law, the Company's Amended and Restated Certificate of
Incorporation and the By-Laws of the Company permit the purchase by the
Company of insurance for indemnification of directors and officers. The
Company currently maintains directors and officers liability insurance.
The foregoing summary of Section 145 of the General Corporation Law,
Articles ELEVENTH and TWELFTH of the Amended and Restated Certificate of
Incorporation of the Company and Article 8 of the By-Laws of the Company is
qualified in its entirety by reference to the relevant provisions of Section
145, the relevant provisions of the Company's Unofficial Composite Amended and
Restated Certificate of Incorporation, which is attached hereto as Exhibit
3.1, and the relevant provisions of the Company's By-Laws, which are
incorporated herein by reference to Exhibit 3.3 to the Company's Annual Report
on Form 10-K for the year ended December 31, 2000, File No. 1-12139.
Under the Registration Rights Agreement (Exhibit 4.2 hereto), the
Company has agreed to indemnify the selling security holders and each person,
if any, who controls each selling security holder against certain liabilities,
including liabilities under the Securities Act of 1933, and the selling
security holders have agreed to indemnify the Company, its directors, its
officers and each person, if any, who controls the Company against certain
liabilities, including liabilities under the Securities Act of 1933.
ITEM 16. EXHIBITS
The following is a list of all exhibits filed as part of this
Registration Statement, including those incorporated by reference.
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
3.1 Unofficial Composite Amended and Restated
Certificate of Incorporation of the Company,
effective August 27, 2003.
3.2 Amendment to the Certificate of Incorporation of
the Company, filed with the Secretary of State of
the State of Delaware on August 27, 2003.
3.3 Amended and Restated By-Laws of the Company as
currently in effect. (Exhibit 3.3 to the
Company's Annual Report on Form 10-K for the year
ended December 31, 2000, File No. 1-12139, is
incorporated herein by reference.)
4.1 Indenture, dated as of July 1, 2003, of the
Company, as Issuer, to SunTrust Bank, as Trustee,
regarding the Notes. (Exhibit 4.2 to the
Company's Quarterly Report on Form 10-Q for the
quarterly period ended June 30, 2003, File No.
1-12139, is incorporated herein by reference.)
4.2 Registration Rights Agreement, dated as of July
1, 2003, between the Company, as Issuer, and the
initial purchasers of the Notes. (Exhibit 4.3 to
the Company's Quarterly Report on Form 10-Q for
the quarterly period ended June 30, 2003, File
No. 1-12139, is incorporated herein by
reference.)
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.
23.1 Consent of KPMG LLP.
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom
LLP (included in Exhibit 5.1).
24.1 Powers of Attorney (included in the signature
page of this Registration Statement).
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) of 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (i) and (ii) above do not apply if
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to Section 13
or Section 15(d) of the Exchange Act of 1934 that are incorporated by
reference in the registration statement.
2. That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
3. To remove from registration by means of a post-effective amendment any
of the securities being registered that remain unsold at the
termination of the offering.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with
the securities being registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be governed by
the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the Township of Saddle Brook, State of New
Jersey, on the 5th day of September 2003.
Sealed Air Corporation
(Registrant)
/s/ William V. Hickey
By: _______________________________________
Name: William V. Hickey
Title: President and Chief Executive Officer
Each person whose signature appears below hereby severally
constitutes, appoints and authorizes H. Katherine White, Jeffrey S. Warren and
Sean E. Dempsey, and each of them, as true and lawful attorneys-in-fact and
agents with full power of substitution and resubstitution for such person and
in such person's name, place and stead, and in any and all capacities to sign
and execute any and all amendments (including pre-effective and post-effective
amendments) to this Registration Statement, and to file the same with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, and hereby grants to such
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done,
as fully to all intents and purposes as such person might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or their substitute or substitutes may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933 this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ William V. Hickey
By: ____________________________ President, Chief Executive Officer September 5, 2003
Name: William V. Hickey And Director (Principal
Executive Officer)
/s/ David H. Kelsey
By: ____________________________ Vice President and Chief Financial September 5, 2003
Name: David H. Kelsey Officer (Principal Financial
Officer)
/s/ Jeffrey S. Warren
By: ____________________________ Controller September 5, 2003
Name: Jeffrey S. Warren (Principal Accounting Officer)
/s/ Hank Brown
By: ____________________________ Director September 5, 2003
Name: Hank Brown
/s/ Michael Chu
By: ____________________________ Director September 5, 2003
Name: Michael Chu
/s/ Lawrence R. Codey
By: ____________________________ Director September 5, 2003
Name: Lawrence R. Codey
/s/ T.J. Dermot Dunphy
By: ____________________________ Director September 5, 2003
Name: T.J. Dermot Dunphy
/s/ Charles F. Farrell, Jr.
By: ____________________________ Director September 5, 2003
Name: Charles F. Farrell, Jr.
/s/ Shirley Ann Jackson
By: ____________________________ Director September 5, 2003
Name: Shirley Ann Jackson
/s/ Kenneth P. Manning
By: ____________________________ Director September 5, 2003
Name: Kenneth P. Manning
/s/ William J. Marino
By: ____________________________ Director September 5, 2003
Name: William J. Marino
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
- ------ ------------
3.1 Unofficial Composite Amended and Restated
Certificate of Incorporation of the Company,
effective August 27, 2003.
3.2 Amendment to the Certificate of Incorporation of
the Company, filed with the Secretary of State of
the State of Delaware on August 27, 2003.
3.3 Amended and Restated By-Laws of the Company as
currently in effect. (Exhibit 3.3 to the
Company's Annual Report on Form 10-K for the year
ended December 31, 2000, File No. 1-12139, is
incorporated herein by reference.)
4.1 Indenture, dated as of July 1, 2003, of the
Company, as Issuer, to SunTrust Bank, as Trustee,
regarding the Notes. (Exhibit 4.2 to the
Company's Quarterly Report on Form 10-Q for the
quarterly period ended June 30, 2003, File No.
1-12139, is incorporated herein by reference.)
4.2 Registration Rights Agreement, dated as of July
1, 2003, between the Company, as Issuer, and the
initial purchasers of the Notes. (Exhibit 4.3 to
the Company's Quarterly Report on Form 10-Q for
the quarterly period ended June 30, 2003, File
No. 1-12139, is incorporated herein by
reference.)
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.
23.1 Consent of KPMG LLP.
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom
LLP (included in Exhibit 5.1).
24.1 Powers of Attorney (included in the signature
page of this Registration Statement).
Exhibit 3.1
-----------
(Unofficial Composite Copy through filing effective August 27, 2003)
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
SEALED AIR CORPORATION
FIRST: The name of the corporation is Sealed Air Corporation (the
"Corporation").
SECOND: The registered office of the Corporation in the State of
Delaware is located at Corporation Service Company, 2711 Centerville Road,
Suite 400, Wilmington, New Castle County, Delaware 19808. Its registered agent
at such address is Corporation Service Company.
THIRD: The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of Delaware.
FOURTH: The total number of shares of stock which the Corporation
shall have authority to issue is 450,000,000, consisting of 400,000,000 shares
of Common Stock, par value $0.10 per share (the "Common Stock"), and
50,000,000 shares of Preferred Stock, par value $0.10 per share (the
"Preferred Stock").
The Preferred Stock may be issued from time to time in one or more
series. The powers, designations, preferences and other rights and
qualifications, limitations or restrictions of the Preferred Stock of each
series shall be such as are stated and expressed in this Article Fourth and,
to the extent not stated and expressed herein, shall be such as may be fixed
by the Board of Directors (authority so to do being hereby expressly granted)
and stated and expressed in a resolution or resolutions adopted by the Board
of Directors providing for the initial issue of Preferred Stock of such
series. Such resolution or resolutions shall (a) fix the dividend rights of
holders of shares of such series, (b) fix the terms on which stock of such
series may be redeemed if the shares of such series are to be redeemable, (c)
fix the rights of the holders of stock of such series upon dissolution or any
distribution of assets, (d) fix the terms or amount of the sinking fund, if
any, to be provided for the purchase or redemption of stock of such series,
(e) fix the terms upon which the stock of such series may be converted into or
exchanged for stock of any other class or classes or of any one or more series
of Preferred Stock if the shares of such series are to be convertible or
exchangeable, (f) fix the voting rights, if any, of the shares of such series
and (g) fix such other powers, designations, preferences and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions thereof desired to be so fixed.
Except to the extent otherwise provided in the resolution or
resolutions of the Board of Directors providing for the initial issue of
shares of a particular series or expressly required by law, holders of shares
of Preferred Stock of any series shall be entitled to one vote for each share
thereof so held, shall vote share for share with the holders of the Common
Stock without distinction as to class and shall not be entitled to vote
separately as a class or series of a class. The number of shares of Preferred
Stock authorized to be issued may be increased or decreased from time to time
by the affirmative vote of the holders of a majority of the voting power of
the then outstanding Voting Stock, and the holders of the Preferred Stock
shall not be entitled to vote separately as a class or series of a class on
any such increase or decrease. For the purposes of this Amended and Restated
Certificate of Incorporation, "Voting Stock" shall mean the outstanding shares
of capital stock of the Corporation entitled to vote generally in the election
of directors.
All shares of any one series of Preferred Stock shall be identical
with each other in all respects except that shares of any one series issued at
different times may differ as to the dates from which dividends thereon shall
accumulate, and all series of Preferred Stock shall rank equally and be
identical in all respects except as specified in the respective resolutions of
the Board of Directors providing for the initial issue thereof.
Subject to the prior and superior rights of the Preferred Stock as
set forth in any resolution or resolutions of the Board of Directors providing
for the initial issuance of any particular series of Preferred Stock, such
dividends (payable in cash, stock or otherwise) as may be determined by the
Board of Directors may be declared and paid on the Common Stock from time to
time out of any funds legally available therefor and the Preferred Stock shall
not be entitled to participate in any such dividend.
FIFTH: The Corporation is to have perpetual existence.
SIXTH: The private property of the stockholders shall not be subject
to the payment of the corporate debts to any extent whatever except as
otherwise provided by law.
SEVENTH: In furtherance, and not in limitation of the powers
conferred by statute, the Board of Directors is expressly authorized:
A. To adopt, amend or repeal the by-laws of the Corporation;
B. To authorize and cause to be executed mortgages and
liens, with or without limit as to amount, upon the real and personal
property of the Corporation;
C. To authorize the guaranty by the Corporation of
securities, evidences of indebtedness and obligations of other persons,
corporations and business entities; and
D. By resolution adopted by a majority of the whole board,
to designate one or more committees, each committee to consist of two or
more of the directors of the Corporation, which, to the extent provided
in the resolution, shall have and may exercise the powers of the Board of
Directors in the management of the business and affairs of the
Corporation and may authorize the seal of the Corporation to be affixed
to all papers which may require it. Such committee or committees shall
have such name or names as may be determined from time to time by
resolution adopted by the Board of Directors. The Board of Directors may
designate one or more directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the
committee. The members of any such committee present at any meeting and
not disqualified from voting may, whether or not they constitute a
quorum, unanimously appoint another member of the Board of Directors to
act at the meeting in the place of any absent or disqualified member.
All corporate powers of the Corporation shall be exercised by the Board of
Directors except as otherwise provided herein or by law.
EIGHTH: Any property of the Corporation constituting less than all of
its assets including goodwill and its corporate franchise, deemed by the Board
of Directors to be not essential to the conduct of the business of the
Corporation, may be sold, leased, exchanged or otherwise disposed of by
authority of the Board of Directors. All of the property and assets of the
Corporation including its goodwill and its corporate franchises, may be sold,
leased or exchanged upon such terms and conditions and for such consideration
(which may be in whole or in part shares of stock and/or other securities of
any other corporation or corporations) as the Board of Directors shall deem
expedient and for the best interests of the Corporation, when and as
authorized by the affirmative vote of the holders of a majority of the voting
power of the then outstanding Voting Stock given at a stockholders' meeting
duly called for that purpose upon at least 20 days notice containing notice of
the proposed sale, lease or exchange.
NINTH: A director or officer of the Corporation shall not be
disqualified by his office from dealing or contracting with the Corporation
either as a vendor, purchaser or otherwise, nor shall any transaction or
contract of the Corporation be void or voidable by reason of the fact that any
director or officer or any firm of which any director or officer is a member
or any corporation of which any director or officer is a stockholder, officer
or director, is in any way interested in such transaction or contract,
provided that such transaction or contract is or shall be authorized, ratified
or approved either (1) by a vote of a majority of a quorum of the Board of
Directors or of a committee thereof, without counting in such majority any
director so interested (although any director so interested may be included in
such quorum), or (2) by a majority of a quorum of the stockholders entitled to
vote at any meeting. No director or officer shall be liable to account to the
Corporation for any profits realized from any such transaction or contract
authorized, ratified or approved as aforesaid by reason of the fact that he,
or any firm of which he is a member or any corporation of which he is a
stockholder, officer or director, was interested in such transaction or
contract. Nothing herein contained shall create liability in the events above
described or prevent the authorization, ratification or approval of such
contracts in any other manner permitted by law.
TENTH: Any contract, transaction or act of the Corporation or of the
Board of Directors which shall be approved or ratified by a majority of a
quorum of the stockholders entitled to vote at any meeting shall be as valid
and binding as though approved or ratified by every stockholder of the
Corporation; but any failure of the stockholders to approve or ratify such
contract, transaction or act, when and if submitted, shall not be deemed in
any way to invalidate the same or to deprive the Corporation, its directors or
officers of their right to proceed with such contract, transaction or act.
ELEVENTH: Each person who is or was or has agreed to become a
director or officer of the Corporation, and each such person who is or was
serving or who has agreed to serve at the request of the Board of Directors or
an officer of the Corporation as an employee or agent of the Corporation or as
a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans (including the heirs, executors, administrators or
estate of such person), shall be indemnified by the Corporation, in accordance
with the by-laws of the Corporation, to the fullest extent permitted from time
to time by the General Corporation Law of the State of Delaware as the same
exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than said law permitted prior to such
amendment) or any other applicable laws as presently or hereafter in effect.
Without limiting the generality or the effect of the foregoing, the
Corporation may enter into one or more agreements with any person which
provide for indemnification greater than or different from that provided in
this ARTICLE ELEVENTH. Any amendment or repeal of this ARTICLE ELEVENTH shall
not adversely affect any right or protection existing hereunder in respect of
any act or omission occurring prior to such amendment or repeal.
TWELFTH: A director of the Corporation shall not be personally liable
to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (1) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (2) for
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (3) under Section 174 of the General Corporation
Law of the State of Delaware, or (4) for any transaction from which the
director derived an improper personal benefit. Any amendment or repeal of this
ARTICLE TWELFTH shall not adversely affect any right or protection of a
director of the Corporation existing hereunder in respect of any act or
omission occurring prior to such amendment or repeal.
THIRTEENTH: Whenever a compromise or arrangement is proposed between
this corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this corporation under
Section 291 of Title 8 of the Delaware Code or on the application of trustees
in dissolution or of any receiver or receivers appointed for this corporation
under Section 279 of Title 8 of the Delaware Code, order a meeting of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of this corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of this
corporation as consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of this corporation, as the case may be, and also on this
corporation.
FOURTEENTH: Meetings of stockholders and directors may be held within
or without the State of Delaware, as the by-laws may provide. The books of
account of the Corporation may be kept (subject to any provision contained in
the statutes) outside the State of Delaware at such place or places as may be
designated from time to time by the Board of Directors or in the by-laws of
the Corporation. Elections of directors need not be by written ballot unless
the by-laws of the Corporation shall so provide.
FIFTEENTH: Subject to the rights of the holders of any series of
Preferred Stock or any other series or class of stock as set forth in this
Amended and Restated Certificate of Incorporation to elect additional
directors under specific circumstances, whenever the vote of stockholders at a
meeting thereof is required or permitted to be taken for or in connection with
any corporate action, the meeting and vote of stockholders may be dispensed
with if a written consent to such corporate action is signed by the holders of
outstanding stock having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted; provided that prompt notice
must be given to all stockholders of the taking of corporate action without a
meeting and by less than unanimous written consent.
SIXTEENTH: Each director, other than those who may be elected by the
holders of any series of Preferred Stock or any other series or class of stock
as set forth in this Amended and Restated Certificate of Incorporation, shall
hold office until a successor is elected at the next succeeding annual meeting
of stockholders and qualified or until such director's earlier resignation or
removal.
SEVENTEENTH: The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this certificate of incorporation,
in the manner now or hereafter prescribed by statute, and all rights conferred
upon stockholders herein are granted subject to this reservation.
EXHIBIT 3.2
-----------
CERTIFICATE OF ELIMINATION
OF
SERIES A CONVERTIBLE PREFERRED STOCK
OF
SEALED AIR CORPORATION
(Pursuant to Section 151 of the General Corporation Law
of the State of Delaware)
SEALED AIR CORPORATION, a corporation organized and existing under
the General Corporation Law of the State of Delaware (the "Corporation"),
DOES HEREBY CERTIFY THAT:
FIRST: Under Article FOURTH ("Article FOURTH") of the Corporation's
Amended and Restated Certificate of Incorporation, the Corporation has
authority to issue 50,000,000 shares of preferred stock, par value $0.10 per
share ("Preferred Stock").
SECOND: Article FOURTH authorized the Corporation to issue 36,021,851
shares of Preferred Stock designated as Series A Convertible Preferred Stock
("Series A Preferred Stock").
THIRD: Since the original issuance of Series A Preferred Stock, the
Corporation has heretofore filed Certificates of Retirement in the Office of
the Secretary of State of the State of Delaware covering 7,732,137 shares of
Series A Preferred Stock on December 28, 2000; 931,210 shares of Series A
Preferred Stock on December 26, 2001; and 817,985 shares of Series A Preferred
Stock on February 4, 2003 (an aggregate of 9,481,332 shares; collectively, the
"Previous Retirements").
FOURTH: On July 18, 2003, the Corporation redeemed all of the
remaining outstanding shares of Series A Preferred Stock for $51.00 per share
(representing the $50.00 per share liquidation value and a $1.00 per share
redemption premium) plus an amount equal to dividends accrued thereon from
July 1, 2003 through July 17, 2003 pursuant to resolutions that were duly
adopted at a meeting of the Corporation's Board of Directors (the "Board of
Directors").
FIFTH: The shares of capital stock of the Corporation that are
retired pursuant to this Certificate are the 26,540,519 shares of Series A
Preferred Stock that remained authorized after giving effect to the Previous
Retirements. Such shares have an aggregate liquidation value of
$1,327,025,950.00, an aggregate par value of $2,654,051.90, and include all
shares of Series A Preferred Stock (other than the Previous Retirements) that
have been authorized, issued, redeemed, converted or otherwise reacquired by
the Corporation.
SIXTH: The Corporation's Amended and Restated Certificate of
Incorporation prohibits the reissuance of the above shares as shares of Series
A Preferred Stock and provides that upon their redemption, conversion, other
acquisition by the Corporation or retirement, such shares shall have the
status of authorized but unissued shares of Preferred Stock, without
designation as to series, subject to reissuance by the Board of Directors as
shares of any one or more other series.
SEVENTH: After giving effect to the foregoing, no shares of Series A
Preferred Stock are issued or outstanding, the authorized number of shares of
Series A Preferred Stock is reduced to zero, and all such shares are restored
to the status of authorized but unissued shares of Preferred Stock, without
designation as to series, subject to reissuance by the Board of Directors as
shares of any one or more other series in accordance with the Corporation's
Amended and Restated Certificate of Incorporation.
EIGHTH: Pursuant to the provisions of Section 151 of the General
Corporation Law of the State of Delaware, upon the effective date of the
filing of this Certificate, the Corporation's Amended and Restated Certificate
of Incorporation shall be and is further amended so as to effect the
elimination from such certificate of all references to Series A Preferred
Stock.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by William V. Hickey, its authorized President and Chief Executive
Officer, and attested to by H. Katherine White, its Secretary, this 26th day
of August, 2003.
SEALED AIR CORPORATION
[Seal]
By: /s/ William V. Hickey
-------------------------
William V. Hickey
President and
Chief Executive Officer
ATTEST:
/s/ H. Katherine White
- -------------------------
H. Katherine White
Secretary
EXHIBIT 5.1
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036-6522
September 5, 2003
Sealed Air Corporation
Park 80 East
Saddle Brook, New Jersey 07663
Re: Sealed Air Corporation - Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as special counsel to Sealed Air Corporation, a
Delaware corporation (the "Company"), in connection with the preparation of a
Registration Statement on Form S-3 (the "Registration Statement"), filed with
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Act"), on September 5, 2003, relating to the
registration under the Act of 6,160,708 shares (the "Shares") of the Company's
common stock, par value $0.10 per share (the "Common Stock"), initially
issuable upon the conversion of the Notes (as defined below), and of such
additional shares of Common Stock as may thereafter be issuable as a result of
anti-dilution adjustments under the Notes. The Shares are issuable upon the
conversion of $431,250,000 aggregate principal amount of the Company's 3%
Convertible Senior Notes due 2033 (the "Notes"), issued under the Indenture,
dated as of July 1, 2003 (the "Indenture"), between the Company and SunTrust
Bank, as Trustee, which were sold pursuant to the terms of the Purchase
Agreement, dated June 26, 2003 (the "Purchase Agreement"), between the Initial
Purchasers named therein (the "Initial Purchasers") and the Company.
This opinion is being furnished in accordance with the requirements
of Item 601(b)(5) of Regulation S-K under the Act.
In connection with this opinion, we have examined originals or
copies, certified or otherwise identified to our satisfaction, of (i) the
Registration Statement; (ii) the Indenture, (iii) the Purchase Agreement, (iv)
a specimen certificate representing the Common Stock; (v) the form of the
Notes; (vi) the Certificate of Incorporation of the Company, as amended to
date and currently in effect; (vii) the By-laws of the Company, as amended to
date and currently in effect; (viii) resolutions of the Board of Directors of
the Company, adopted at a meeting held on June 13, 2003, and (ix) resolutions
of the special committee of the Board of Directors of the Company, adopted
June 25, 2003. We also have examined originals or copies, certified or
otherwise identified to our satisfaction, of such records of the Company and
such agreements, certificates of public officials, certificates of officers or
other representatives of the Company and others, and such other documents,
certificates and records as we have deemed necessary or appropriate as a basis
for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified, conformed or photostatic copies and
the authenticity of the originals of such latter documents. In making our
examination of executed documents, we have assumed that the parties thereto,
other than the Company, had the power, corporate or other, to enter into and
perform all obligations thereunder and have also assumed the due authorization
by all requisite action, corporate or other, and execution and delivery by
such parties of such documents and the validity and binding effect thereof on
such parties. In rendering the opinion set forth below, we have assumed that
(i) the Shares will be issued upon the conversion of the Notes in accordance
with the terms of the Indenture and the Notes; (ii) the registrar and transfer
agent for the Common Stock will duly register such issuance and countersign
the stock certificates evidencing such Shares; and (iii) such stock
certificates will conform to the specimen certificate examined by us. As to
any facts material to the opinions expressed herein which we have not
independently established or verified, we have relied upon statements and
representations of officers and other representatives of the Company and
others.
Members of our firm are admitted to the bar in the State of New York,
we do not express any opinion as to the laws of any jurisdiction other than
the corporate laws of the State of Delaware, and we do not express any opinion
as to the effect of any other laws on the opinions stated herein.
Based upon and subject to the foregoing, we are of the opinion that
the Shares have been duly authorized by the Company and, when issued upon
conversion of the Notes, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Commission
as an exhibit to the Registration Statement. We also consent to the reference
to our firm under the caption "Legal Matters" in the Registration Statement.
In giving this consent, we do not thereby admit that we are included in the
category of persons whose consent is required under Section 7 of the Act or
the rules and regulations of the Commission.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom LLP
Exhibit 23.1
Independent Auditors' Consent
The Board of Directors
Sealed Air Corporation:
We consent to the use of our report dated January 24, 2003, with respect to
the Consolidated Balance Sheets of Sealed Air Corporation and Subsidiaries as
of December 31, 2002 and 2001, and the related Consolidated Statements of
Operations, Shareholders' Equity, Cash Flows, and Comprehensive (Loss) Income
for each of the years in the three-year period ended December 31, 2002, and
the related schedule, incorporated herein by reference and to the reference to
our firm under the heading "Experts" in the prospectus. Our report on such
consolidated financial statements refers to the Company's adoption of
Statement of Financial Accounting Standards No. 142, "Goodwill and Other
Intangible Assets," as of January 1, 2002.
KPMG LLP
/S/ KPMG LLP
Short Hills, New Jersey
September 4, 2003