As filed with the Securities and Exchange Commission on December 19, 2003
Registration No. 333-108544
==============================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
AMENDMENT NO. 2
TO
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 (I.R.S. Employer
of 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, and (Name, address, including zip code,
telephone number, including area code, of and telephone number, including
registrant's principal executive offices) area code, of 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. [_] _______________
CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum Amount of
Title of Each Class of Amount to be Offering Price per Aggregate Registration
Securities to be Registered Registered(1) Unit(2) Offering Price Fee(3)
--------------------------- --------------- ------------------ ---------------- ------------
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.
(3) Fee previously paid.
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.
[Flag]
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 DECEMBER 19, 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 "Securities Act").
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 14.
Our common stock is listed for trading on the New York Stock Exchange
under the symbol "SEE." On December 18, 2003, the last reported sale price of
the common stock was $53.50 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 3.
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
SUMMARY.............................................................................................1
RISK FACTORS........................................................................................3
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS...........................................5
USE OF PROCEEDS.....................................................................................6
SELLING STOCKHOLDERS................................................................................7
PLAN OF DISTRIBUTION...............................................................................14
LEGAL MATTERS......................................................................................15
EXPERTS............................................................................................15
INCORPORATION OF DOCUMENTS BY REFERENCE............................................................15
WHERE YOU CAN FIND MORE INFORMATION................................................................16
_______________
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.
i
SUMMARY
Company Overview
Sealed Air Corporation is a holding company that, operating through
its subsidiaries, is a leading global manufacturer of a wide range of food,
protective and specialty packaging products.
Our principal food packaging products include a wide range of
high-performance materials including shrink film and shrink bag products,
non-shrink laminate products and packaging systems marketed primarily under
the Cryovac(R) trademark for packaging a broad range of perishable foods.
These products also include polystyrene foam and solid plastic trays and
containers, and absorbent pads used for the packaging, protection and display
of meat, poultry, produce and other food products.
Our protective and specialty packaging products include Bubble
Wrap(R) and AirCap(R) air cellular cushioning materials, Instapak(R)
polyurethane foam packaging systems, extruded and laminated plank polyethylene
foams sold under the Stratocell(R) and other trademarks, Cell-Aire(R)
polyethylene foam, a wide range of protective and durable mailers and bags
sold under a variety of tradenames including the widely recognized Jiffy(R)
trademark, shrink and non-shrink films, Korrvu(R) suspension packaging, and
certain paper based protective packaging materials and packaging systems.
The Offering
The purpose of this offering is to enable stockholders who obtain
shares of our common stock issued upon the conversion of the Notes to resell
such shares. Holders of the Notes may, subject to certain conditions, 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, subject to
anti-dilution adjustments in certain circumstances. The shares of common stock
issuable upon the conversion of the Notes may be sold by the selling
stockholders from time to time directly by the selling stockholders or,
alternatively, through underwriters, broker-dealers or agents. See "Plan of
Distribution."
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.
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. Also, the
selling stockholders 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. In no event will any distribution of the shares of common
stock covered by this prospectus take the form of an underwritten offering
without our prior agreement.
Asbestos Settlement
On November 27, 2002, we reached an agreement in principle with the
appropriate parties to resolve all current and future asbestos-related claims
made against the Company and its affiliates in connection with the Cryovac
Transaction. The settlement will also resolve the fraudulent transfer claims,
as well as indemnification claims by Fresenius that had been made against us
in connection with the Cryovac Transaction. On December 3, 2002, our Board of
Directors approved the agreement in principle. We were advised that both of
the Committees had approved the agreement in principle as of December 5, 2002.
As of November 10, 2003, the parties signed a definitive settlement agreement
consistent with the
1
terms of the agreement in principle. On November 26, 2003, the definitive
settlement agreement was presented to the court for approval and will
eventually be incorporated into W. R. Grace & Co.'s ("New Grace") 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. For a
description of the Cryovac Transaction, the asbestos-related and other claims
and the parties involved, as well as the charges recorded by us in connection
with the settlement, see "Asbestos Settlement and Related Costs," "Cryovac
Transaction" and "Contingencies Related to the Cryovac Transaction" contained
in our quarterly report filed on Form 10-Q for the quarterly period ended
September 30, 2003, which is incorporated by reference into this prospectus,
and the discussion below under "Risk Factors."
Recapitalization
On July 18, 2003, we completed the redemption of all of our Series A
convertible preferred stock, which was financed by the issuance through
private offerings in July 2003 of $400 million principal amount of 5.625%
senior notes due July 15, 2013, $450 million principal amount of 6.875% senior
notes due July 15, 2033, and $431.25 million principal amount of 3%
convertible senior notes due June 30, 2033.
Headquarters
Our principal executive offices are located at Park 80 East, Saddle
Brook, New Jersey 07663, and our telephone number is (201) 791-7600.
2
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. See also the "Cautionary Statement Regarding Forward-Looking
Statements" below.
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
is not approved and implemented we will not be released from the various
asbestos-related, fraudulent transfer and indemnification claims made against
us. Further, we have been served with a complaint in a lawsuit seeking class
action status against us concerning our public disclosures regarding the
asbestos litigation.
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. As of November 10, 2003, the parties
signed a definitive settlement agreement consistent with the terms of the
agreement in principle. On November 26, 2003, the definitive settlement
agreement was presented to the court for approval and will eventually be
incorporated into W. R. Grace & Co.'s ("New Grace") 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. We expect the order
approving the settlement agreement will also extend the stay of all
proceedings brought against us outside the bankruptcy court for any asbestos
related claims through the effective date of New Grace's plan of
reorganization.
The definitive settlement agreement, 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 payment of the settlement amount, which
includes nine million shares of our common stock (subject to adjustment) and
$512.5 million in cash plus interest on the cash payment at a 5.5% annual rate
from December 21, 2002 until the date the settlement amount is paid, all
present and future asbestos related
3
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
from all asbestos-related claims, including fraudulent transfer claims, brought
against us by the Committees, as well as various indemnification claims made
against us. We will not be obligated to pay the settlement amount unless, among
other things, New Grace's plan of reorganization is consistent with the terms
of the settlement, including provisions for the trusts and liability releases
referred to above, and including an injunction barring the future prosecution
of any asbestos related claims against us and our affiliates. We do not know
when New Grace's plan of reorganization will be presented to the court for
approval, nor do we know at this time whether the plan of reorganization will
be consistent with the terms of the settlement or if the other conditions on
our obligation to pay the settlement amount will be met. If these conditions
are not satisfied or not waived by us, we will not be obligated to pay the
settlement amount. However, if we do not pay the settlement amount, we will not
be released from the various asbestos-related, fraudulent transfer, and
indemnification claims made against us noted above, and all of these claims
would remain pending and would have to be resolved through other means, such as
through agreement on alternative settlement terms or trials.
On September 15, 2003, a plaintiff filed the case of Senn v. Hickey,
et al. (Case No. 03-CV-4372) in the U.S. District Court for the District of
New Jersey (Newark). This lawsuit seeks class action status on behalf of all
persons who purchased or otherwise acquired our securities during the period
from March 27, 2000 through July 30, 2002 (the "Class Period"). The lawsuit
names us and certain of our current and former officers and directors as
defendants. The lawsuit makes a number of allegations against the defendants,
including allegations that during the Class Period the defendants materially
misled the investing public, artificially inflated the price of our common
stock by publicly issuing false and misleading statements and violated
Generally Accepted Accounting Principles by failing to accrue for our
contingent liability for asbestos claims arising from past operations of New
Grace. The lawsuit seeks compensatory damages and other relief. We intend to
defend the lawsuit vigorously, since we believe that we properly disclosed our
contingent liability for New Grace's asbestos claims. Although we believe that
we should have no liability in this lawsuit, at this time we cannot estimate
the likelihood or potential costs of an unfavorable outcome.
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.
4
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. In addition,
our announcements of our quarterly operating results, future developments in
the settlement of the asbestos litigation against us, the effects of animal
and food-related health issues, spikes in raw material and energy-related
costs, 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 September 30, 2003, 1,061,956 shares
of common stock were reserved for issuance under our contingent stock plan and
directors' stock plan and options to purchase 278,572 shares of our common
stock were outstanding (all of which were exercisable). In addition, as of
September 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.
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.
5
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.
The shares of common stock offered hereby are issuable upon the
conversion of the Notes. The Notes were issued in July 2003, at which time we
issued a total of $1,281.25 million of senior notes, including $431.25 million
of the Notes, in transactions that were exempt from registration under Rule
144A and other available exemptions under the Securities Act. On July 18,
2003, the net proceeds from these offerings and additional cash on hand were
used to redeem our Series A convertible preferred stock at the redemption
price of $51.00 per share for which we used $1,298.1 million of cash plus an
amount equal to dividends accrued from July 1, 2003 through July 17, 2003 for
which we used $2.4 million of cash.
6
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. 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 in certain circumstances (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:
o during any calendar quarter commencing after September 30, 2003,
if the closing sale price of our 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;
o 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;
o 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;
7
o if the Notes have been called for redemption; or
o upon the occurrence of certain corporate events.
We have the option to redeem the Notes beginning July 2, 2007 at a
price equal to 101.286% of their aggregate principal amount declining ratably
to 100% of their aggregate principal amount on June 30, 2010.
The holders of the Notes have the option to require us to repurchase
the Notes on June 30 of 2010, 2013, 2018, 2023 and 2028 or upon the occurrence
of a fundamental change in or a termination of trading of our common stock at
a price equal to 100% of their principal amount, plus accrued and unpaid
interest.
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 December 18, 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 December 18, 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 December 18, 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;
8
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 December 18, 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
December 18, 2003, in excess of 1% of our outstanding common stock.
As of November 30, 2003 there were 85,079,384 shares of our common
stock issued and outstanding.
COMMON STOCK COMMON STOCK TO
BENEFICIALLY BE BENEFICIALLY
OWNED AS OF COMMON STOCK OWNED AFTER PERCENTAGE OF
December 18, OFFERED IN THIS THIS ALL COMMON
NAME 2003 (1) PROSPECTUS (1) OFFERING (1) STOCK (2)
---- ------------- --------------- --------------- -------------
Advisory Convertible Arbitrage Fund (I) L.P. (3) 14,285 14,285 -- --
Allstate Insurance Company (4) 14,285 14,285 -- --
Allstate Life Insurance Company (4) 14,285 14,285 -- --
American Investors Life Insurance Co. (5) 8,571 8,571 -- --
AmerUs Life Insurance Co. (5) 78,571 78,571 -- --
Arbitex Master Fund, L.P. (6) 399,999 399,999 -- --
Aviva Life Insurance Co. (7) 31,428 31,428 -- --
Banc of America Securities LLC (8) 185,714 185,714 -- --
Bank of America Pension Plan (9) 42,857 42,857 -- --
Bankers Life Insurance Company of New York (5) 1,428 1,428 -- --
Barclays Global Investors Limited (9) 3,571 3,571 -- --
Bear, Stearns & Co. Inc. (10) 166,071 166,071 -- --
Black Diamond Convertible Offshore
LDC (11) 31,114 31,114 -- --
Black Diamond Offshore Ltd. (11) 17,357 17,357 -- --
BP Amoco PLC Master Trust (12) 5,871 5,871 -- --
CGNU Life Fund (7) 11,428 11,428 -- --
Chrysler Corporation Master Retirement Trust
(13) 50,142 50,142 -- --
Citigroup Global Markets Inc. 18,642 18,642 -- --
Commercial Union Life Fund (7) 14,285 14,285 -- --
Consulting Group Capital Markets Fund (9) 14,285 14,285 -- --
Convertible Securities Fund (14) 857 857 -- --
Credit Suisse First Boston Europe Limited 996 996 -- --
D.E. Shaw Investment Group, L.P. (15) 42,857 42,857 -- --
D.E. Shaw Valence Portfolios, L.P. (15) 171,428 171,428 -- --
Daimler Chrysler Corp Emp. #1 Pension Trust
dtd 4/1/89 (16) 41,428 41,428 -- --
Davidson Kempner Institutional
Partners (17) 78,142 78,142 -- --
Davidson Kempner International
Limited (17) 89,428 89,428 -- --
Davidson Kempner Partners (17) 43,285 43,285 -- --
9
[Table continued]
DB Equity Opportunities Master Portfolio 71,428 71,428 -- --
Deam Convertible Arbitrage 35,714 35,714 -- --
Deephaven Domestic Convertible
Trading Ltd. 105,642 105,642 -- --
Deep Rock & Co. (9) 52,857 52,857 -- --
Delta Air Lines Master Trust - CV (13) 20,642 20,642 -- --
Delta Pilots Disability and Survivorship Trust
- CV (13) 9,999 9,999 -- --
Dodeca Fund, L.P. (5) 25,142 25,142 -- --
Double Black Diamond Offshore LDC (11) 91,071 91,071 -- --
Family Service Life Insurance Co. (18) 4,285 4,285 -- --
Franklin and Marshall College (16) 3,114 3,114 -- --
FrontPoint Convertible Arbitrage Fund L.P. (19) 28,571 28,571 -- --
Gaia Offshore Master Fund Ltd. 17,142 17,142 -- --
General Motors Welfare Benefit Trust (9) 17,142 17,142 -- --
GLG Market Neutral Fund 107,142 107,142 -- --
GMAM Group Pension Trust (9) 61,428 61,428 -- --
Guardian Life Insurance Co. (18) 122,857 122,857 -- --
Guardian Pension Trust (18) 14,285 14,285 -- --
Guggenheim Portfolio Co. XV, LLC (20) 7,142 7,142 -- --
Hotel Union and Hotel Industry of Hawaii
Pension Plan (12) 2,285 2,285 -- --
IL Annuity and Insurance Co. (5) 382,928 382,928 -- --
Inflective Convertible Opportunity Fund I,
L.P. (13) 571 571 -- --
JMG Capital Partners LP (21) 139,285 139,285 -- --
JMG Triton Offshore Fund LTD (22) 139,285 139,285 -- --
John Deere Pension Trust (9) 33,571 33,571 -- --
Lyxor Master Fund 28,571 28,571 -- --
Lyxor/Gaia II Fund Ltd 5,714 5,714 -- --
M.H. Davidson & Co. (17) 3,428 3,428 -- --
Microsoft Corporation (13) 32,785 32,785 -- --
MLQA Convertible Securities Arbitrage (23) 107,142 107,142 -- --
Morgan Stanley Convertible Securities Trust 28,571 28,571 -- --
Motion Picture Industry Health Plan - Active
Member Fund (13) 5,142 5,142 -- --
Motion Picture Industry Health Plan - Retiree
Member Fund (13) 3,428 3,428 -- --
Nations Convertible Securities Fund (14) 141,999 141,999 -- --
NMS Services (Cayman), Inc. (24) 142,857 142,857 -- --
Nomura Securities Intl Inc. 28,571 28,571 -- --
Norwich Union Life and Pensions (7) 21,428 21,428 -- --
OCM Convertible Trust (13) 40,357 40,357 -- --
OCM Global Convertible Securities Fund - DC
(13) 2,571 2,571 -- --
Oppenheimer Convertible Securities Fund 42,857 42,857 -- --
Park Avenue Life Insurance Co. (18) 1,428 1,428 -- --
Partner Reinsurance Company Ltd. (13) 17,499 17,499 -- --
People Benefit Life Insurance Company
Teamsters (9) 77,142 77,142 -- --
Privilege Portfolio SICAV (7) 42,857 42,857 -- --
Pyramid Equity Strategies Fund 17,857 17,857 -- --
10
[Table continued]
Quattro Fund Limited 31,999 31,999 -- --
Qwest Occupational Health Trust (13) 5,714 5,714 -- --
Ramius Capital Group (20) 7,142 7,142 -- --
Ramius Master Fund, LTD (20) 46,428 46,428 -- --
Ramius Partners II, LP (20) 3,571 3,571 -- --
Ramius, LP (20) 1,428 1,428 -- --
RBC Alternative Assets LP (25) 2,857 2,857 -- --
RCG Baldwing, LP (20) 5,714 5,714 -- --
RCG Latitude Master Fund, LTD (20) 46,428 46,428 -- --
RCG Multi Strategy Master Fund, LTD (20) 14,285 14,285 -- --
Retail Clerics Pension Trust (9) 58,571 58,571 -- --
Retail Clerics Pension Trust #2 (9) 50,714 50,714 -- --
Sage Capital 55,714 55,714 -- --
Sphinx Convertible Arb Fund SPC (12) 3,613 3,613 -- --
SSI Blended Market Neutral L.P. (12) 3,671 3,671 -- --
St. Albans Partners LTD. (9) 93,571 93,571 -- --
State Employees' Retirement Fund of the State
of Delaware (13) 23,285 23,285 -- --
State Street Bank Custodian For GE Pension
Trust (16) 26,885 26,885 -- --
The Coast Fund, L.P. (26) 107,142 107,142 -- --
Thrivent Financial for Lutherans 35,714 35,714 -- --
Topanga XI (24) 5,714 5,714 -- --
Travelers Indemnity Company - Commercial Lines
(13) 4,428 4,428 -- --
Travelers Indemnity Company - Personal Lines
(13) 2,928 2,928 -- --
UBS O'Connor LLC F/B/O O'Connor Global
Convertible Arbitrage Master Limited 307,142 307,142 -- --
UBS O'Connor LLC F/B/O O'Connor Global
Convertible Portfolio 7,142 7,142 -- --
Van Kampen Harbor Fund (27) 28,571 28,571 -- --
Vanguard Convertible Securities Fund, Inc. (13) 134,499 134,499 -- --
Viacom Inc. Pension Plan Master Trust (12) 199 199 -- --
White River Securities L.L.C. (28) 166,071 166,071 -- --
Worldwide Transactions Ltd (11) 3,314 3,314 -- --
WPG Convertible Arbitrage Overseas Master Fund
(29) 11,428 11,428 -- --
WPG MSA Convertible Arbitrage
Fund (29) 2,857 2,857 -- --
Xavex Convertible Arbitrage 5 Fund (20) 10,714 10,714 -- --
Yield Strategies Fund I, L.P. (9) 24,285 24,285 -- --
Zurich Institutional Benchmark Management 7,999 7,999 -- --
Zurich Institutional Benchmarks Master Fund
Ltd. (12) 14,428 14,428 -- --
TOTAL 5,341,793 5,341,793 -- --
________________
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 December 18, 2003, assumes that the selling stockholders will sell all
shares
11
[Table continued]
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 December 18, 2003 and assuming all the Notes beneficially owned by such selling
stockholder as of December 18, 2003, have been converted.
3. We have been advised that Advisory Convertible Arbitrage L.L.C. general partner of Advisory Convertible
Arbitrage Fund (I) L.P. is an indirect subsidiary of American Express Company.
4. We have been advised that these companies are subsidiaries of The Allstate Corporation.
5. We have been advised that Mr. Thomas J. Ray 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 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.
7. 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.
8. We have been advised that Banc of America Securities LLC is a subsidiary of Banc of America Corporation.
9. 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.
10. We have been advised that Bear, Stearns & Co. Inc. is a subsidiary of The Bear Stearns Companies Inc.
11. 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.
12. 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.
13. We have been advised that Mr. Lawrence Keele may be deemed the beneficial owner of these shares by virtue
of his voting control and investment discretion.
14. We have been advised that Mr. Ed Cassens and Mr. Yanfang C. Yan may be deemed the beneficial owner of
these shares by virtue of its voting control and investment discretion.
15. We have been advised that Mr. Julius Gaudio, Mr. Eric Wepsic and Ms. Anne Dinning may be deemed the
beneficial owner of these shares by virtue of their voting control and investment discretion.
16. We have been advised that Palisade Capital Management, L.L.C. may be deemed the beneficial owner of these
shares by virtue of its voting control and investment discretion.
17. We have been advised that Messrs. Marvin H. Davidson, Scott E. Davidson, Robert J. Brivio, Thomas L.
Kempner, Michael J. Leffel, Stephen M. Dowicz, and Timothy I. Levart may be deemed the beneficial owner
of these shares by virtue of their voting control and investment discretion.
12
[Table continued]
18. We have been advised that Mr. John Murphy may be deemed the beneficial owner of these shares by virtue of
his voting control and investment discretion.
19. We have been advised that FrontPoint Partners LLC may be deemed the beneficial owner of these shares by
virtue of its voting control and investment discretion with respect to these shares. FrontPoint Partners
LLC is the managing member of FrontPoint Convertible Arbitrage Fund GP, LLC, which is the general partner
of FrontPoint Convertible Arbitrage Fund, L.P.
20. 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.
21. 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.
22. 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.
23. We have been advised that Merrill Lynch & Co. Inc. may be deemed the beneficial owner of these shares by
virtue of its voting control and investment discretion.
24. 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.
25. 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.
26. 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.
27. 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.
28. 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.
29. 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.
13
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;
14
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, June 30, 2003 and September 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, July 23, 2003
and November 4, 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.
15
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. 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.
16
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.
Part II-1
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. *
_______________
* Previously filed.
Part II-2
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.
Part II-3
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.
Part II-4
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
Amendment No. 2 to the 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 19th day of December 2003.
Sealed Air Corporation
(Registrant)
By: /s/ William V. Hickey
----------------------
Name: William V. Hickey
Title: President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933 this
Amendment No. 2 to the Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
By: /s/ William V. Hickey President, Chief Executive Officer December 19, 2003
Name: William V. Hickey And Director
(Principal Executive Officer)
By: /s/ David H. Kelsey Vice President and Chief Financial December 19, 2003
Name: David H. Kelsey Officer
(Principal Financial Officer)
By: /s/ Jeffrey S. Warren Controller December 19, 2003
Name: Jeffrey S. Warren (Principal Accounting Officer)
By: /s/ Hank Brown* Director December 19, 2003
Name: Hank Brown
[Signature table continued]
Signature Title Date
--------- ----- ----
By: /s/ Michael Chu* Director December 19, 2003
Name: Michael Chu
By: /s/ Lawrence R. Codey* Director December 19, 2003
Name: Lawrence R. Codey
By: /s/ T.J. Dermot Dunphy* Director December 19, 2003
Name: T.J. Dermot Dunphy
By: /s/ Charles F. Farrell, Jr.* Director December 19, 2003
Name: Charles F. Farrell, Jr.
By: /s/ Shirley Ann Jackson* Director December 19, 2003
Name: Shirley Ann Jackson
By: /s/ Kenneth P. Manning* Director December 19, 2003
Name: Kenneth P. Manning
By: /s/ William J. Marino* Director December 19, 2003
Name: William J. Marino
* By: /s/ H. Katherine White
H. Katherine White
Attorney-in-Fact
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. *
_______________
* Previously filed.
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. /s/ KPMG LLP KPMG LLP Short Hills, New Jersey December 19, 2003