-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, GRKp7eQQKULzrihD4SqFKHvDb476/jm5yHK9/6CVhKRorpxCI4MIIou9/shtey4n T2woI5KAV+yoSorZDK+Q9Q== 0000950144-07-009245.txt : 20071012 0000950144-07-009245.hdr.sgml : 20071012 20071012161356 ACCESSION NUMBER: 0000950144-07-009245 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20071012 DATE AS OF CHANGE: 20071012 GROUP MEMBERS: ANTHONY A. TAMER GROUP MEMBERS: BAYSIDE OPPORTUNITY ADVISORS, L.L.C. GROUP MEMBERS: BAYSIDE OPPORTUNITY FUND, L.P. GROUP MEMBERS: H.I.G.-GPII, INC. GROUP MEMBERS: OHIO PLASTICS FINANCING, INC. GROUP MEMBERS: OHIO PLASTICS RECOVERY, LTD. GROUP MEMBERS: SAMI W. MNAYMNEH SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: MILACRON INC CENTRAL INDEX KEY: 0000716823 STANDARD INDUSTRIAL CLASSIFICATION: SPECIAL INDUSTRY MACHINERY, NEC [3559] IRS NUMBER: 311062125 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-40853 FILM NUMBER: 071169778 BUSINESS ADDRESS: STREET 1: 2090 FLORENCE AVENUE STREET 2: PO BOX 63716 CITY: CINCINNATI STATE: OH ZIP: 45206 BUSINESS PHONE: 5134875000 MAIL ADDRESS: STREET 1: 2090 FLORENCE AVENUE STREET 2: P.O. BOX 63716 CITY: CINCINNATI STATE: OH ZIP: 45206 FORMER COMPANY: FORMER CONFORMED NAME: CINCINNATI MILACRON INC /DE/ DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: CINCINNATI MILACRON HOLDINGS INC DATE OF NAME CHANGE: 19830503 FORMER COMPANY: FORMER CONFORMED NAME: CINCINNATI MILLING MACHINE CO DATE OF NAME CHANGE: 19600201 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: OHIO PLASTICS, LLC CENTRAL INDEX KEY: 0001411078 IRS NUMBER: 208599366 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 1001 BRICKELL BAY DRIVE STREET 2: 26TH FLOOR CITY: MIAMI STATE: FL ZIP: 33131 BUSINESS PHONE: 305-379-8686 MAIL ADDRESS: STREET 1: 1001 BRICKELL BAY DRIVE STREET 2: 26TH FLOOR CITY: MIAMI STATE: FL ZIP: 33131 SC 13D 1 g09897sc13d.htm SCHEDULE 13D Schedule 13D
 

     
 
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934
(Amendment No.  )*

MILACRON INC.
(Name of Issuer)
COMMON STOCK, $0.01 PAR VALUE
(Title of Class of Securities)
598709103
(CUSIP Number)
Ohio Plastics, LLC
c/o Bayside Capital, Inc.
1001 Brickell Bay Drive, 27th Floor
Miami, Florida 33131
Attention: John Bolduc
Telephone: (305) 379-2322
with copies to:
     
Bayside Capital, Inc.
1001 Brickell Bay Drive, 27th Floor
Miami, Florida 33131
Attention: Richard H. Siegel, Esq.
Telephone: (305) 379-2322 		  Greenberg Traurig, LLP
77 West Wacker Drive, Suite 2500
Chicago, Illinois 60601
Attention: Paul Quinn, Esq.
Telephone: (312) 456-8400
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
October 2, 2007
(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 
 

 

                     
CUSIP No.
  
598709103 
   Page  
2 
   of   
16 

 

           
1   NAMES OF REPORTING PERSONS

OHIO PLASTICS, LLC
     
     
2   CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
  (a)   o 
  (b)   o 
     
3   SEC USE ONLY
   
   
     
4   SOURCE OF FUNDS (SEE INSTRUCTIONS)
   
  AF; OO
     
5   CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
   
  o
     
6   CITIZENSHIP OR PLACE OF ORGANIZATION
   
  Delaware
       
  7   SOLE VOTING POWER
     
NUMBER OF   3,285,714(see Item 5)(1)
       
SHARES 8   SHARED VOTING POWER
BENEFICIALLY    
OWNED BY  
       
EACH 9   SOLE DISPOSITIVE POWER
REPORTING    
PERSON   3,285,714(see Item 5)(1)
       
WITH 10   SHARED DISPOSITIVE POWER
     
   
     
11   AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
   
  3,285,714(see Item 5)(1)
     
12   CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
   
  o
     
13   PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
   
  29.3% OF COMMON STOCK (2)
     
14   TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
   
  OO
(1) Shares reported are shares of common stock on a fully diluted, as-converted basis (excluding accrued but unpaid dividends).
(2) Based on (i) 5,508,129 shares of common stock of Milacron Inc. outstanding on July 31, 2007 as disclosed in Milacron’s Quarterly Report on Form 10-Q that was filed with the Securities and Exchange Commission on August 6, 2007 and (ii) 5,714,286 shares of common stock issuable upon conversion of all of the shares of 6.0% Series B Convertible Preferred Stock.

 

                     
CUSIP No.
  
598709103 
   Page  
3 
   of   
16 

 

           
1   NAMES OF REPORTING PERSONS

OHIO PLASTICS RECOVERY, LTD.
     
     
2   CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
  (a)   o 
  (b)   o 
     
3   SEC USE ONLY
   
   
     
4   SOURCE OF FUNDS (SEE INSTRUCTIONS)
   
  AF; OO
     
5   CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
   
  o
     
6   CITIZENSHIP OR PLACE OF ORGANIZATION
   
  CAYMAN ISLANDS
       
  7   SOLE VOTING POWER
     
NUMBER OF   3,285,714(see Item 5)(1)
       
SHARES 8   SHARED VOTING POWER
BENEFICIALLY    
OWNED BY  
       
EACH 9   SOLE DISPOSITIVE POWER
REPORTING    
PERSON   3,285,714(see Item 5)(1)
       
WITH 10   SHARED DISPOSITIVE POWER
     
   
     
11   AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
   
  3,285,714(see Item 5)(1)
     
12   CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
   
  o
     
13   PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
   
  29.3% OF COMMON STOCK(2)
     
14   TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
   
  CO
(1) Beneficial ownership of the shares of common stock of Milacron Inc. referred to herein is being reported hereunder solely because the reporting person may be deemed to beneficially own such shares as a result of its membership of Ohio Plastics, LLC.
(2) Based on (i) 5,508,129 shares of common stock of Milacron Inc. outstanding on July 31, 2007 as disclosed in Milacron’s Quarterly Report on Form 10-Q that was filed with the Securities and Exchange Commission on August 6, 2007 and (ii)  5,714,286 shares of common stock issuable upon conversion of all of the shares of 6.0% Series B Convertible Preferred Stock.

 

                     
CUSIP No.
  
598709103 
   Page  
4 
   of   
16 

 

           
1   NAMES OF REPORTING PERSONS

OHIO PLASTICS FINANCING, INC.
     
     
2   CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
  (a)   o 
  (b)   o 
     
3   SEC USE ONLY
   
   
     
4   SOURCE OF FUNDS (SEE INSTRUCTIONS)
   
  WC; OO
     
5   CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
   
  o
     
6   CITIZENSHIP OR PLACE OF ORGANIZATION
   
  DELAWARE
       
  7   SOLE VOTING POWER
     
NUMBER OF   3,285,714(see Item 5)(1)
       
SHARES 8   SHARED VOTING POWER
BENEFICIALLY    
OWNED BY  
       
EACH 9   SOLE DISPOSITIVE POWER
REPORTING    
PERSON   3,285,714(see Item 5)(1)
       
WITH 10   SHARED DISPOSITIVE POWER
     
   
     
11   AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
   
  3,285,714(see Item 5)(1)
     
12   CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
   
  o
     
13   PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
   
  29.3% OF COMMON STOCK(2)
     
14   TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
   
  CO
(1) Beneficial ownership of the shares of common stock of Milacron Inc. referred to herein is being reported hereunder solely because the reporting person may be deemed to beneficially own such shares as a result of its indirect ownership of Ohio Plastics, LLC.
(2) Based on (i) 5,508,129 shares of common stock of Milacron Inc. outstanding on July 31, 2007 as disclosed in Milacron’s Quarterly Report on Form 10-Q that was filed with the Securities and Exchange Commission on August 6, 2007 and (ii)  5,714,286 shares of common stock issuable upon conversion of all of the shares of 6.0% Series B Convertible Preferred Stock.

 

                     
CUSIP No.
  
598709103 
   Page  
5 
   of   
16 

 

           
1   NAMES OF REPORTING PERSONS

BAYSIDE OPPORTUNITY FUND, L.P.
     
     
2   CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
  (a)   o 
  (b)   o 
     
3   SEC USE ONLY
   
   
     
4   SOURCE OF FUNDS (SEE INSTRUCTIONS)
   
  AF; OO
     
5   CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
   
  o
     
6   CITIZENSHIP OR PLACE OF ORGANIZATION
   
  DELAWARE
       
  7   SOLE VOTING POWER
     
NUMBER OF   3,285,714(see Item 5)(1)
       
SHARES 8   SHARED VOTING POWER
BENEFICIALLY    
OWNED BY  
       
EACH 9   SOLE DISPOSITIVE POWER
REPORTING    
PERSON   3,285,714(see Item 5)(1)
       
WITH 10   SHARED DISPOSITIVE POWER
     
   
     
11   AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
   
  3,285,714(see Item 5)(1)
     
12   CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
   
  o
     
13   PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
   
  29.3% OF COMMON STOCK(2)
     
14   TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
   
  PN
(1) Beneficial ownership of the shares of common stock of Milacron Inc. referred to herein is being reported hereunder solely because the reporting person may be deemed to beneficially own such shares as a result of its indirect ownership of Ohio Plastics, LLC.
(2) Based on (i) 5,508,129 shares of common stock of Milacron Inc. outstanding on July 31, 2007 as disclosed in Milacron’s Quarterly Report on Form 10-Q that was filed with the Securities and Exchange Commission on August 6, 2007 and (ii)  5,714,286 shares of common stock issuable upon conversion of all of the shares of 6.0% Series B Convertible Preferred Stock.

 

                     
CUSIP No.
  
598709103 
   Page  
6 
   of   
16 

 

           
1   NAMES OF REPORTING PERSONS

BAYSIDE OPPORTUNITY ADVISORS, L.L.C.
     
     
2   CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
  (a)   o 
  (b)   o 
     
3   SEC USE ONLY
   
   
     
4   SOURCE OF FUNDS (SEE INSTRUCTIONS)
   
  AF; OO
     
5   CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
   
  o
     
6   CITIZENSHIP OR PLACE OF ORGANIZATION
   
  DELAWARE
       
  7   SOLE VOTING POWER
     
NUMBER OF   3,285,714(see Item 5)(1)
       
SHARES 8   SHARED VOTING POWER
BENEFICIALLY    
OWNED BY  
       
EACH 9   SOLE DISPOSITIVE POWER
REPORTING    
PERSON   3,285,714(see Item 5)(1)
       
WITH 10   SHARED DISPOSITIVE POWER
     
   
     
11   AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
   
  3,285,714(see Item 5)(1)
     
12   CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
   
  o
     
13   PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
   
  29.3% OF COMMON STOCK (2)
     
14   TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
   
  OO
(1) Beneficial ownership of the shares of common stock of Milacron Inc. referred to herein is being reported hereunder solely because the reporting person may be deemed to beneficially own such shares as a result of its indirect ownership of Ohio Plastics, LLC.
(2) Based (i) on 5,508,129 shares of common stock of Milacron Inc. outstanding on July 31, 2007 as disclosed in Milacron’s Quarterly Report on Form 10-Q that was filed with the Securities and Exchange Commission on August 6, 2007 and (ii)  5,714,286 shares of common stock issuable upon conversion of all of the shares of 6.0% Series B Convertible Preferred Stock.

 

                     
CUSIP No.
  
598709103 
   Page  
7 
   of   
16 

 

           
1   NAMES OF REPORTING PERSONS

H.I.G.-GPII, INC.
     
     
2   CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
  (a)   o 
  (b)   o 
     
3   SEC USE ONLY
   
   
     
4   SOURCE OF FUNDS (SEE INSTRUCTIONS)
   
  AF;OO
     
5   CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
   
  o
     
6   CITIZENSHIP OR PLACE OF ORGANIZATION
   
  DELAWARE
       
  7   SOLE VOTING POWER
     
NUMBER OF   3,285,714(see Item 5)(1)
       
SHARES 8   SHARED VOTING POWER
BENEFICIALLY    
OWNED BY  
       
EACH 9   SOLE DISPOSITIVE POWER
REPORTING    
PERSON   3,285,714(see Item 5)(1)
       
WITH 10   SHARED DISPOSITIVE POWER
     
   
     
11   AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
   
  3,285,714(see Item 5)(1)
     
12   CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
   
  o
     
13   PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
   
  29.3% OF COMMON STOCK (2)
     
14   TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
   
  CO
(1) Beneficial ownership of the shares of common stock of Milacron Inc. referred to herein is being reported hereunder solely because the reporting person may be deemed to beneficially own such shares as a result of its indirect ownership of Ohio Plastics, LLC.
(2) Based on (i) 5,508,129 shares of common stock of Milacron Inc. outstanding on July 31, 2007 as disclosed in Milacron’s Quarterly Report on Form 10-Q that was filed with the Securities and Exchange Commission on August 6, 2007 and (ii)  5,714,286 shares of common stock issuable upon conversion of all of the shares of 6.0% Series B Convertible Preferred Stock.

 

                     
CUSIP No.
  
598709103 
   Page  
8 
   of   
16 

 

           
1   NAMES OF REPORTING PERSONS

SAMI W. MNAYMNEH
     
     
2   CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
  (a)   o 
  (b)   o 
     
3   SEC USE ONLY
   
   
     
4   SOURCE OF FUNDS (SEE INSTRUCTIONS)
   
  AF; OO
     
5   CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
   
  o
     
6   CITIZENSHIP OR PLACE OF ORGANIZATION
   
  UNITED STATES
       
  7   SOLE VOTING POWER
     
NUMBER OF  
       
SHARES 8   SHARED VOTING POWER
BENEFICIALLY    
OWNED BY   3,285,714(see Item 5)(1)
       
EACH 9   SOLE DISPOSITIVE POWER
REPORTING    
PERSON  
       
WITH 10   SHARED DISPOSITIVE POWER
     
    3,285,714(see Item 5)(1)
     
11   AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
   
  3,285,714(see Item 5)(1)
     
12   CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
   
  o
     
13   PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
   
  29.3% OF COMMON STOCK(2)
     
14   TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
   
  IN
(1) Beneficial ownership of the shares of common stock of Milacron Inc. referred to herein is being reported hereunder solely because the reporting person may be deemed to beneficially own such shares as a result of its indirect ownership of Ohio Plastics, LLC.
(2) Based on (i) 5,508,129 shares of common stock of Milacron Inc. outstanding on July 31, 2007 as disclosed in Milacron’s Quarterly Report on Form 10-Q that was filed with the Securities and Exchange Commission on August 6, 2007 and (ii)  5,714,286 shares of common stock issuable upon conversion of all of the shares of 6.0% Series B Convertible Preferred Stock.

 

                     
CUSIP No.
  
598709103 
   Page  
9 
   of   
16 

 

           
1   NAMES OF REPORTING PERSONS

ANTHONY A. TAMER
     
     
2   CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
  (a)   o 
  (b)   o 
     
3   SEC USE ONLY
   
   
     
4   SOURCE OF FUNDS (SEE INSTRUCTIONS)
   
  AF; OO
     
5   CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
   
  o
     
6   CITIZENSHIP OR PLACE OF ORGANIZATION
   
  UNITED STATES
       
  7   SOLE VOTING POWER
     
NUMBER OF  
       
SHARES 8   SHARED VOTING POWER
BENEFICIALLY    
OWNED BY   3,285,714(see Item 5)(1)
       
EACH 9   SOLE DISPOSITIVE POWER
REPORTING    
PERSON  
       
WITH 10   SHARED DISPOSITIVE POWER
     
    3,285,714(see Item 5)(1)
     
11   AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
   
  3,285,714(see Item 5)(1)
     
12   CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
   
  o
     
13   PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
   
  29.3% OF COMMON STOCK(2)
     
14   TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
   
  IN
(1) Beneficial ownership of the shares of common stock of Milacron Inc. referred to herein is being reported hereunder solely because the reporting person may be deemed to beneficially own such shares as a result of its indirect ownership of Ohio Plastics, LLC.
(2) Based on (i) 5,508,129 shares of common stock of Milacron Inc. outstanding on July 31, 2007 as disclosed in Milacron’s Quarterly Report on Form 10-Q that was filed with the Securities and Exchange Commission on August 6, 2007 and (ii)  5,714,286 shares of common stock issuable upon conversion of all of the shares of 6.0% Series B Convertible Preferred Stock.

 

                     
CUSIP No.
  
598709103 
   Page  
10 
   of   
16 
SCHEDULE 13D
     This Statement of Beneficial Ownership on Schedule 13D (this “Schedule 13D”) is being filed in connection with the Securities Purchase Agreement (the “Purchase Agreement”), dated as of October 2, 2007, by and between Ohio Plastics, LLC, a Delaware limited liability company (“Ohio Plastics”), and Glencore Finances AG (“Glencore”).
     Pursuant to the Purchase Agreement, on October 2, 2007 (the “Closing Date”), Ohio Plastics acquired from Glencore an aggregate of 287,500 shares (the “Shares”) of 6.0% Series B Convertible Preferred Stock of Milacron Inc., a Delaware corporation (the “Issuer”), (the “Preferred Stock”), which on the date of this filing is convertible into 3,285,714 shares of common stock, $0.01 par value (the “Common Stock”), in exchange for total consideration in cash of $17,937,500, or $62.3913 per share of Preferred Stock.
     Among other things, each share of Preferred Stock (i) has a liquidation preference of $200, (ii) is convertible into 11.42857 shares of Common Stock at a price of $17.50 per share, (iii) entitles the holder thereof to vote on all matters put to a vote of stockholders of the Issuer, voting together with the holders of the Common Stock and existing Preferred Stock as a single class and (iv) entitles the holder thereof, voting together with the other holders of the Preferred Stock, to designate a majority of the board of directors. On the date hereof, Ohio Plastics owns 57.50% of the outstanding shares of Preferred Stock.
     The foregoing summary is qualified in its entirety by the full text of the Purchase Agreement, a complete and accurate copy of which is attached hereto as Exhibit 99.2 and incorporated in its entirety herein by reference.
ITEM 1. SECURITY AND ISSUER
     This Schedule 13D relates to the Common Stock. The Issuer’s principal executive offices are located at 2090 Florence Avenue, Cincinnati, Ohio 45026.
ITEM 2. IDENTITY AND BACKGROUND
     (a), (b) and (c) This Schedule 13D is being filed jointly by (i) Ohio Plastics, (ii) Ohio Plastics Recovery, Ltd., a Cayman Islands exempted company (“OPR”), (iii) Ohio Plastics Financing, Inc., a Delaware corporation (“OPF”), (iv) Bayside Opportunity Fund, L.P., a Delaware limited partnership (“Bayside Opportunity Fund”), (v) Bayside Opportunity Advisors, L.L.C., a Delaware limited liability company (“Bayside Advisors”), (vi) H.I.G.-GPII, Inc., a Delaware corporation (“HIG GP”), (vii) Sami W. Mnaymneh, an individual and (viii) Anthony A. Tamer, an individual (collectively, the “Reporting Persons”).
1. Ohio Plastics
     Ohio Plastics was formed for the specific purpose of consummating the purchase of the Preferred Stock and the other transactions contemplated by the Purchase Agreement. The principal place of business of Ohio Plastics, which also serves as its principal office, is 1001 Brickell Bay Drive, 27 th Floor, Miami, Florida 33131. The members of Ohio Plastics are OPR and OPF (collectively, the “Members”). OPF is the manager of Ohio Plastics.
     The name, place of organization (or citizenship for natural persons), principal business (or occupation for natural persons) and address of principal office (or residence or business address for natural persons) for each member is set forth below:
Members
             
    Place of        
    Organization or   Principal Business   Address of Principal Office or
Name   Citizenship   or Occupation   Residence or Business Address
Ohio Plastics Recovery, Ltd.
  Cayman Islands   Holding Company   1001 Brickell Bay Drive,
 
          27th Floor, Miami,
 
          Florida 33131
 
            
Ohio Plastics Financing, Inc.
  Delaware   Holding Company   1001 Brickell Bay Drive,
 
          27th Floor, Miami,
 
          Florida 33131

 

 

                     
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2. OPR
     OPR is a Cayman Islands exempt company that beneficially owns directly and indirectly through its 100% ownership of OPF (which owns 100% of the preferred units of Ohio Plastics and all of the common units of Ohio Plastics not owned by OPR), 100% of the outstanding units of Ohio Plastics OPR’s principal business is as a holding company. The following table sets forth the names, addresses and principal occupations of the directors and executive officers of OPR:
Directors and Executive Officers
         
Name   Address   Principal Occupation
Anthony A. Tamer
  1001 Brickell Bay Drive,   Managing Partner of H.I.G. Capital, L.L.C.
Director, Co-President
  27th Floor, Miami,    
 
  Florida 33131    
 
        
Sami W. Mnaymneh
  1001 Brickell Bay Drive,   Managing Partner of H.I.G. Capital, L.L.C.
Director, Co- President
  27th Floor, Miami,    
 
  Florida 33131    
3. OPF
     OPF is a Delaware corporation that beneficially owns 100% of the preferred units of Ohio Plastics and 20% of the outstanding common units of Ohio Plastics. OPF’s principal business is as a holding company. OPR is the sole stockholder of OPF. The principal place of business of OPF, which also serves as its principal office, is 1001 Brickell Bay Drive, 27th Floor, Miami, Florida 33131. The following table sets forth the names, addresses and principal occupations of the directors and executive officers of OPF:
Directors and Executive Officers
         
Name   Address   Principal Occupation
John Bolduc
  1001 Brickell Bay Drive,   Managing Director of Bayside Capital, Inc.
President
  27th Floor, Miami,    
 
  Florida 33131    
 
        
Tiffany Kosch
  1001 Brickell Bay Drive,   Principal of Bayside Capital, Inc.
Vice President and Secretary
  27th Floor, Miami,    
 
  Florida 33131    
4. Bayside Opportunity Fund
     Bayside Opportunity Fund is a Delaware limited partnership, and its principal business is as a private equity fund. Bayside Opportunity Fund beneficially owns the majority of the outstanding stock of OPR. The principal place of business of Bayside Opportunity Fund, which also serves as its principal office, is 1001 Brickell Bay Drive, 27th Floor, Miami, Florida 33131. As discussed below, Bayside Advisors is the general partner of Bayside Opportunity Fund.
5. Bayside Advisors
     Bayside Advisors is a Delaware limited liability company, and its principal business is as a private equity management company. Bayside Advisors is the general partner of Bayside Opportunity Fund. The principal place of business of Bayside Advisors, which also serves as its principal office, is 1001 Brickell Bay Drive, 27th Floor, Miami, Florida 33131. As discussed below, HIG GP is the manager of Bayside Advisors.

 

 

                     
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6. HIG GP
     HIG GP is a Delaware corporation, and its principal business is to serve as an investment management company. HIG GP is the manager of Bayside Advisors. The principal business address of HIG GP, which also serves as its principal office, is 1001 Brickell Bay Drive, 27th Floor, Miami, Florida 33131. The following table sets forth the names, addresses and principal occupations of the directors and executive officers of HIG GP:
         
Name   Address   Principal Occupation
Anthony A. Tamer
  1001 Brickell Bay   Managing Partner of H.I.G. Capital, L.L.C.
Co-President, Director
  Drive, 27th Floor,    
 
  Miami, Florida 33131    
 
        
Sami W. Mnaymneh
  1001 Brickell Bay   Managing Partner of H.I.G. Capital, L.L.C.
Co-President, Director
  Drive, 27th Floor,    
 
  Miami, Florida 33131    
7. Sami W. Mnaymneh and Anthony A. Tamer
     Messrs. Sami Mnaymneh and Anthony Tamer are the co-founders and co-managing partners of H.I.G. Capital, L.L.C., a private equity firm. Additionally, Messrs. Tamer and Mnaymneh are the shareholders of HIG GP.
     (d) and (e) During the last five years, no Reporting Person nor, to the best knowledge of the Reporting Persons, any other person identified in response to this Item 2, has been convicted in any criminal proceeding (excluding traffic violations or similar misdemeanors) or was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction resulting in a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws, or finding any violation with respect to such laws.
     (f) Each natural person identified in this Item 2 is a citizen of the United States.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
     On October 2, 2007, Ohio Plastics acquired the Shares in connection with the closing of the transactions contemplated by the Purchase Agreement. The total consideration paid for the purchase of the Preferred Stock was $17,937,500.
     The acquisition of the Preferred Stock was funded from the working capital of Bayside Opportunity Fund and its affiliates. Bayside Opportunity Fund and its affiliates have access to short term credit facilities, which Bayside Opportunity Fund uses in the ordinary course of its investing activities. Such credit facilities are repaid using capital commitments from limited partners of Bayside Opportunity Fund.
ITEM 4. PURPOSE OF TRANSACTION
     Ohio Plastics made the investment decision to acquire the Preferred Stock and beneficial ownership of the Common Stock because, in its judgment, the Preferred Stock represents an attractive investment opportunity. On the Closing Date, the closing price of the Common Stock, which the Preferred Stock is convertible into, on the NYSE was $6.97 per share. As a result of its purchases of the Preferred Stock, based on (i) 5,508,129 shares of Common Stock outstanding on July 31, 2007 (as disclosed in the Issuer’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission (“SEC”) on August 6, 2007) and (ii) 5,714,286 shares of common stock issuable upon conversion of all of the shares of 6.0% Series B Convertible Preferred Stock, Ohio Plastics, as of the date hereof, beneficially owns 29.3% of the outstanding shares of Common Stock (on an as-converted basis).
     The information set forth in the Introduction is incorporated in this Item 4 by reference.

 

 

                     
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     Ohio Plastics intends to have its director nominees constitute a majority of the Series B Preferred Stock nominees of the Board of Directors of the Issuer (the “Board”). On the Closing Date, pursuant to the Purchase Agreement, four existing members of the Board resigned and four new members were designated to the Board by Ohio Plastics.
     The foregoing summary is qualified in its entirety by the full text of the Purchase Agreement, a complete and accurate copy of which is attached hereto as Exhibit 99.2 and incorporated in its entirety in this Item 4 by reference.
     Except as set forth herein or as would occur in connection with and upon completion of any of the actions and matters discussed in this Item 4, no Reporting Person has any present plan or proposal which would relate to or result in any of the matters set forth in subparagraphs (a)-(j) of Item 4 of Schedule 13D.
     The Reporting Persons intend to closely monitor and evaluate the Issuer’s business, financial performance and prospects and its investments in the Issuer on a continuing basis. Depending on various factors, including, without limitation, the Issuer’s financial performance, the market price of the Common Stock, changes in law or government regulations, tax considerations, developments affecting the Issuer and its prospects, conditions in the securities markets, general economic and industry conditions, and international geopolitical events, the Reporting Persons may consider various courses of action with respect to the Issuer, its Board and its management and may exercise any and all of its respective rights as a stockholder of the Issuer. Such actions may include, without limitation, and the Reporting Persons reserve the right to effect (or seek to effect), at any time and from time to time in any single transaction or series of transactions, the following:
     (i) purchasing additional shares of the Common Stock or Preferred Stock on the open market, in privately negotiated transactions, or otherwise;
     (ii) selling some or all of the Reporting Persons’ shares of Common Stock or Preferred Stock on the open market (with respect to Common Shares), in privately negotiated transactions, or otherwise;
     (iii) compositional changes to the Board as described herein and otherwise;
     (iv) material changes in the Issuer’s business or corporate structure;
     (v) material changes in the present capitalization or dividend policy of the Issuer;
     (vi) changes to the Issuer’s certificate of incorporation, bylaws and other organizational documents;
     (vii) changes in the Issuer’s corporate governance policies and practices and with respect to its business plan and operating strategies;
     (viii) extraordinary corporate transactions, including, without limitation, mergers, acquisitions, dispositions, recapitalizations, sales or transfers of assets, reorganizations or liquidations involving the Issuer; and
     (ix) taking all such additional actions as the Reporting Persons deem necessary or advisable to effectuate the foregoing objectives, and which the Reporting Persons believe are reasonably related thereto.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
     (a) — (b) The information contained on the cover pages of this Schedule 13D and the response to Item 2 of this Schedule 13D are incorporated herein by reference. Ohio Plastics is the beneficial owner of 287,500 shares of Preferred Stock (3,285,714 shares of Common Stock on an as-converted basis, representing, on an as-converted basis, approximately 29.3% of the common stock based on (i) 5,508,129 shares of Common Stock of the Issuer outstanding on July 31, 2007 as disclosed in the Issuer’s Quarterly Report on Form 10-Q that was filed with the SEC on August 6, 2007 and (ii) 5,714,286 shares of common stock issuable upon conversion of all of the shares of 6.0% Series B Convertible Preferred Stock. OPF owns a minority of the outstanding common units of Ohio Plastics, all of the outstanding preferred units of Ohio Plastics and is the sole manager of Ohio Plastics and thus may be deemed to directly have sole power to direct the voting and disposition of the Shares held by Ohio Plastics. OPR, a Member of Ohio Plastics, owns a majority of the outstanding common units of Ohio Plastics and all of the outstanding shares of OPF and thus may be deemed to indirectly have sole power to direct the voting and disposition of the Shares held by Ohio Plastics. Bayside Opportunity Fund owns a

 

 

                     
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majority of the outstanding common stock of OPR and thus may be deemed to indirectly have sole power to direct the voting and disposition of the Shares held by Ohio Plastics. Bayside Advisors is the general partner of Bayside Opportunity Fund and thus may be deemed to indirectly have sole power to direct the voting and disposition of the Shares held by Ohio Plastics. HIG GP is the manager of Bayside Advisors and thus may be deemed to indirectly have sole power to direct the voting and disposition of the Shares held by Ohio Plastics. Messrs. Mnaymneh and Tamer control HIG GP and thus may be deemed to indirectly share power to direct the voting, except to the extent of its or his primary interest in the Shares, and disposition of the Shares held by Ohio Plastics. Each of Ohio Plastics Recovery, Ohio Plastics Financing, Bayside Opportunity Fund, Bayside Advisors, HIG GP and Messrs. Mnaymneh and Tamer disclaim beneficial ownership of the Shares.
     (c) The information contained in the Introduction and Item 4 are incorporated herein by reference.
     (d) - (e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER
Joint Filing Agreement
     Pursuant to Rule 13d-1(k)(1) promulgated under the Exchange Act, the Reporting Persons have entered into an agreement with respect to the joint filing of this Schedule 13D, and any amendment or amendments hereto.
Purchase Agreement
     The information set forth in the Introduction and Item 4 is incorporated in this Item 6 by reference. Under the Purchase Agreement, Ohio Plastics agreed to purchase 287,500 shares of Preferred Stock from Glencore for $62.3913 per share.
     The Purchase Agreement required that as a condition to closing at least four members of the Board resigned, and four new members were designated to the Board by Ohio Plastics at the time of closing. The purchase of the Shares occurred on October 2, 2007.
     In addition to obligations undertaken by each party to the Purchase Agreement to use commercially reasonable efforts to consummate and make effective the transactions contemplated thereby, the parties have also agreed to provide each other with certain rights of indemnification.
Director Fee Agreement
     The Issuer and Bayside Capital, Inc., an affiliate of Bayside Opportunity Fund, have entered into a Director Fee Agreement whereby the Issuer shall pay only cash consideration to any members of the Board that are employees of Bayside Capital, Inc. or any of its affiliates.
Acknowledgement of Restrictions and Voting Agreement
     In connection with the purchase of the Shares, Ohio Plastics and Glencore entered into an Acknowledgement of Restrictions pursuant to which Ohio Plastics acknowledged and agreed that the Shares remain subject to certain voting restrictions and an irrevocable proxy set forth in the Voting Agreement dated as of October 2, 2007 by and among the Issuer and Glencore (the “Voting Agreement”). The Voting Agreement secures Glencore’s commitment to vote the Shares which it may be entitled to vote at a specially called meeting of the Issuer’s shareholders in favor of certain amendments to the Issuer’s charter.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
     
Exhibit 99.1
  Joint Filing Agreement, dated as of October 2, 2007, made among the Reporting Persons.
 
    
Exhibit 99.2
  Securities Purchase Agreement, dated as of October 2, 2007, by and between Ohio Plastics and Glencore.
 
    
Exhibit 99.3
  Certificate of Designation of Voting Powers, Designation, Preferences and Relative, Participating, Optional and Other Special Rights, and Qualifications, Limitations and Restrictions, of 6% Series B Convertible Preferred Stock of Milacron (incorporated by reference from Exhibit 10.49 to the Annual Report on Form 10-K filed by Milacron for the fiscal year ended December 31, 2003).
 
    
Exhibit 99.4
  Certificate of Designation of Voting Powers, Designation, Preferences and Relative, Participating, Optional and Other Special Rights, and Qualifications, Limitations and Restrictions, of Series C Preferred Stock of Milacron (incorporated by reference from Exhibit 10.49 to the Annual Report on Form 10-K filed by Milacron for the fiscal year ended December 31, 2003).
 
    
Exhibit 99.5
  Registration Rights Agreement, dated as of March 12, 2004, by and among Milacron, Glencore Finance and Mizuho International (incorporated by reference from Exhibit 10.50 to the Annual Report on Form 10-K filed by Milacron for the fiscal year ended December 31, 2003).
 
    
Exhibit 99.6
  Acknowledgement of Restrictions between Ohio Plastics and Glencore.
 
    
Exhibit 99.7
  Voting Agreement, dated as of October 2, 2007, between Milacron and Glencore (incorporated by reference from Exhibit 10.22 to the Current Report on Form 8-K filed by Milacron on October 5, 2007).

 

 

                     
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SIGNATURE
     After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
Dated: October 12, 2007
         
  OHIO PLASTICS, LLC

By: OHIO PLASTICS FINANCING, INC.
Its: MANAGER
 		  
  By:   /s/ John Bolduc    
    Name:   John Bolduc    
    Title:   President   
 
         
  OHIO PLASTICS RECOVERY, LTD.
 		  
  By:   /s/ Anthony A. Tamer    
    Name:   Anthony A. Tamer    
    Title:   Director   
 
         
  OHIO PLASTICS FINANCING, INC.
 		  
  By:   /s/ John Bolduc    
    Name:   John Bolduc    
    Title:   President   
 
         
  H.I.G.-GPII, INC.
 		  
  By:   /s/Anthony A. Tamer    
    Name:   Anthony A. Tamer    
    Title:   President   
 
         
  BAYSIDE OPPORTUNITY ADVISORS, L.L.C.

By: H.I.G.-GPII, INC.
Its: Manager
 		  
  By:   /s/ Anthony A. Tamer    
    Name:   Anthony A. Tamer    
    Title:   President   
 

 

 

                     
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  BAYSIDE OPPORTUNITY FUND, L.P.

By: BAYSIDE OPPORTUNITY ADVISORS, L.L.C.
Its: General Partner

By: H.I.G.-GPII, INC.
Its: Manager
 		  
  By:   /s/ Anthony A. Tamer    
    Name:   Anthony A. Tamer    
    Title:   President   
 
         
     
  /s/ Sami W. Mnaymneh    
  Sami W. Mnaymneh    
     
 
         
     
  /s/ Anthony A. Tamer    
  Anthony A. Tamer    
     

 

EX-99.1 2 g09897exv99w1.htm EX-99.1 JOINT FILING AGREEMENT Ex-99.1 Joint Filing Agreement
 

         
Exhibit 99.1
Joint Filing Agreement
     In accordance with Rule 13d-1(k) of the Securities Exchange Act of 1934, as amended, the undersigned agree to the joint filing on behalf of each of them of a statement on Schedule 13D with respect to the common stock, par value $0.01 per share of Milacron Inc., and further agree that this Joint Filing Agreement shall be included as an Exhibit to such joint filing. The undersigned further agree that any amendments to such statement on Schedule 13D shall be filed jointly on behalf of each of them without the necessity of entering into additional joint filing agreements.
     The undersigned further agree that each party hereto is responsible for timely filing of such statement on Schedule 13D and any amendments thereto, and for the completeness and accuracy of the information concerning such party contained therein; provided that no party is responsible for the completeness or accuracy of the information concerning any other party unless such party knows or has reason to believe that such information is inaccurate.
     This Joint Filing Agreement may be executed in one more counterparts, each of which shall be deemed to be an original instrument, but all of such counterparts together shall constitute but one agreement.
[Signatures on following page.]

1

 

     IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date set forth below.
Dated: October 12, 2007
         
  OHIO PLASTICS, LLC

By: OHIO PLASTICS FINANCING, INC.
Its: MANAGER
 		  
  By:   /s/ John Bolduc    
    Name:   John Bolduc    
    Title:   President   
 
         
  OHIO PLASTICS RECOVERY, LTD.
 		  
  By:   /s/ Anthony A. Tamer    
    Name:   Anthony A. Tamer    
    Title:   Director   
 
         
  OHIO PLASTICS FINANCING, INC.
 		  
  By:   /s/ John Bolduc    
    Name:   John Bolduc    
    Title:   President   
 
         
  H.I.G.-GPII, INC.
 		  
  By:   /s/ Anthony A. Tamer    
    Name:   Anthony A. Tamer    
    Title:   President   
 
         
  BAYSIDE OPPORTUNITY ADVISORS, L.L.C.

By: H.I.G.-GPII, INC.
Its: Manager
 		  
  By:   /s/ Anthony A. Tamer    
    Name:   Anthony A. Tamer    
    Title:   President   
 
         
  BAYSIDE OPPORTUNITY FUND, L.P.

By: BAYSIDE OPPORTUNITY ADVISORS, L.L.C.
Its: General Partner

By: H.I.G.-GPII, INC.
Its: Manager
 		  
  By:   /s/ Anthony A. Tamer    
    Name:   Anthony A. Tamer    
    Title:   President   
 
         
     
  /s/ Sami W. Mnaymneh    
  Sami W. Mnaymneh    
     
 
         
     
  /s/ Anthony A. Tamer    
  Anthony A. Tamer    
     
 

2

EX-99.2 3 g09897exv99w2.htm EX-99.2 SECURITIES PURCHASE AGREEMENT Ex-99.2 Securities Purchase Agreement
 

Exhibit 99.2
SECURITIES PURCHASE AGREEMENT
     This SECURITIES PURCHASE AGREEMENT (this “Agreement”) is made as of October 2, 2007, by and among Ohio Plastics, LLC., a Delaware limited liability company (“Purchaser”), and Glencore Finance AG, a corporation formed under the laws of Switzerland (the “Seller”). Except as otherwise indicated herein, capitalized terms used herein are defined in Section 6 hereof.
     WHEREAS, Seller owns 287,500 shares of the 6.0% Series B Convertible Preferred Stock (the “Preferred Stock”) of Milacron, Inc., a Delaware corporation (the “Company”); and
     WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires to buy from Seller all of the shares of the Preferred Stock (and all accrued but unpaid or undelivered dividends thereon) held by Seller (the “Sale Transaction”).
     NOW, THEREFORE, in consideration of the mutual covenants and premises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
1. Sale of Preferred Stock.
     (a) Sale of Securities. At the Closing (as defined below) and upon the terms and subject to the conditions set forth in this Agreement, Seller shall sell, transfer, assign and deliver to Purchaser, 287,500 shares of Preferred Stock, representing all of the shares of Preferred Stock owned beneficially and of record by Seller as of the date hereof and as of the Closing (the “Securities”), and Purchaser shall purchase from Seller, all of the right, title, and interest in and to the Securities at a purchase price of $62.39 cash per share (for an aggregate amount of $17,937,500) by wire transfer of immediately available funds to an account designated in writing by Seller (the “Purchase Price”).
     (b) Conditions Precedent to Purchaser’s Obligations. The following conditions to the obligations of the Purchaser to consummate the transactions contemplated hereby, including, without limitation, the delivery of the Purchase Price to the Seller, shall be satisfied or waived on or prior to the Closing:
     (i) The Board of Directors of the Company (the “Board”) shall have duly and irrevocably approved by written resolution (with a copy provided to Purchaser prior to Closing):
     (A) (1) written resignations, effective immediately upon Closing, of no less than four (4) members of the Company’s Board of Directors, with each such resignation delivered to the Company in the manner required by Section 14 of Article III of the Bylaws of the Company (or any successor provision) and applicable law and (2) the filling of the vacancies caused by the resignations contemplated by clause (b)(i)(A)(1) above in the manner required by Section 16 of Article III of the Bylaws of the Company (or any successor provision) and applicable law with the directors identified by the Purchaser at the time of the Closing (the “Purchaser Directors”), in each case, in a manner such that at and after the Closing, the Purchaser Directors shall constitute a majority of the directors nominated and elected by the Series B Holders and the directors elected by the Series B Holders shall constitute a majority of the Board, and
     (B) all other actions required to effectuate the actions and transactions contemplated in Section 1(b)(i)(A) above; and

 

 

     (ii) at the Closing, Purchaser shall have received a certificate executed by an authorized officer of Seller certifying that, as of the Closing Date, each of the representations set forth in Section 3 are true and correct as of the date hereof and all covenants hereunder required to be performed by Seller at or prior to the Closing Date have been so performed.
     (c) Condition Precedent to Seller’s Obligations. As a condition to the obligations of Seller to consummate this transaction, at the Closing, Purchaser shall deliver to Seller a certificate executed by an authorized officer of Purchaser certifying that, as of the Closing Date, each of the representations set forth in Section 4 are true and correct as of the date hereof and all covenants hereunder required to be performed by Purchaser at or prior to the Closing Date have been so performed.
2. Closing. The closing of the transactions contemplated hereby (the “Closing”) shall take place at the offices of Greenberg Traurig, LLP in Chicago, Illinois at 10:00 a.m. (local time) on the second business day after satisfaction (or waiver) of the conditions set forth in Section 1 (other than any such conditions that are not capable of being satisfied until the Closing, but subject to the satisfaction or waiver of those conditions), but in any event upon such satisfaction (or waiver) no later than the End Date (as defined below), or at such other place or on such other date as may be mutually agreeable to Seller and Purchaser. The date of the Closing shall be referred to as the “Closing Date”.
3. Representations, Warranties and Acknowledgments of Seller.
     (a) Seller hereby represents and warrants to Purchaser that:
          (i) Authorization; Ownership. The execution, delivery, and performance of this Agreement and such other documents or certificates contemplated hereby to which Seller is a party have been duly authorized by Seller. All of the Securities are owned of record and beneficially by Seller, and, immediately prior to the Closing, Seller will have good and valid title to the Securities, free and clear of all security interests, adverse claims, liens, pledges, options, encumbrances, charges, agreements, voting trusts, proxies, and other similar arrangements or restrictions whatsoever (each an “Encumbrance” and, collectively, the “Encumbrances”), other than pursuant to the Registration Rights Agreement, and applicable securities laws and, to the actual knowledge of Seller as of the date hereof, were duly authorized and duly and validly issued, fully paid and nonassessable at the time of issuance to Seller.
          (ii) Binding Obligation. This Agreement constitutes a valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium, or other laws affecting creditors’ rights generally and limitations on the availability of equitable remedies.
          (iii) No Breach. The execution and delivery by Seller of this Agreement and such other documents or certificates contemplated hereby, the offering and sale of the Securities hereunder, and the fulfillment of and compliance with the respective terms hereof and thereof by Seller, do not and shall not (A) conflict with or result in a breach of the terms, conditions or provisions of, (B) constitute a default under, (C) result in the creation of any Encumbrance upon the Securities pursuant to, (D) give any third party the right to modify, terminate, or accelerate any obligation under, (E) result in a violation of, or (F) require any authorization, consent, approval, exemption, or other action by or notice to any court or administrative or governmental body pursuant to Seller’s Certificate of Incorporation or bylaws (or similar organizational documents), or any material law, statute, rule, or regulation (including, without limitation, the Securities Act and the rules and regulations of the Securities and Exchange Commission) to which Seller is subject (other than with respect to filings required by the Securities and Exchange Commission in connection with this transaction), or any material agreement, instrument, order, judgment, or decree to which Seller is subject or by which any of their assets are bound.

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          (iv) Capitalization. As of the Closing, (i) to the actual knowledge of Seller, the Preferred Stock represents a majority of the Preferred Stock outstanding (on a fully-diluted basis) and a majority of the voting power of the outstanding Preferred Stock (on a fully-diluted basis) and (ii) the holder of the Securities purchased hereunder owns the requisite number of shares of Preferred Stock to control the rights and privileges under the Certificate of Designation for the Preferred Stock when all holders of the Preferred Stock act as a class, including, without limitation, the ability to elect a majority of the members of the board of directors of the Company. On and after the Closing, Purchaser (as holder of the Securities) is and shall be entitled to receive any and all accrued and unpaid or otherwise undelivered dividends on the Securities.
          (v) Fees. In no case will Purchaser be obligated on or after the Closing for any costs, commissions, expenses or fees incurred for the benefit of Seller by, or otherwise payable to, any investment banker, broker, finder or other intermediary that has been retained by or is authorized to act on behalf of Seller in connection with the transactions contemplated by this Agreement.
          (vi) Company Material Adverse Effect. Since December 31, 2006, to the actual knowledge of Seller, no circumstance, event, occurrence, change or effect has occurred or exists that has had or is reasonably likely to result in a Material Adverse Effect.
     (b) Seller Acknowledgments. Seller acknowledges that both Seller and Purchaser have material, non-public information that does not appear in public filings, and waives its right to assert any claims against the other party on account of such material non-public information other than pursuant to the indemnification provisions of Section 9. Seller acknowledges that, upon the Closing, to the best of Seller’s knowledge, Purchaser shall succeed to all of the rights and obligations of Seller as a “holder” under that certain Registration Rights Agreement, dated March 12, 2004, by and among the Company, Seller and certain other parties named therein pursuant to Section 15 thereof, and no separate express assignment or consent from the Company is required to make the assignment of such rights and obligations thereunder effective.
4. Representations and Warranties of Purchaser.
     (a) Purchaser hereby represents and warrants to Seller that:
     (i) Purchaser (A) is an “accredited investor” (within the meaning of Rule 501(a) promulgated by the Securities and Exchange Commission) or (B) by reason of Purchaser’s business and financial experience, and the business and financial experience of those retained by Purchaser to advise Purchaser with respect to Purchaser’s investment in the Securities being purchased hereunder, Purchaser, together with such advisors, has such knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of the purchase of the Securities and making an informed investment decision with respect thereto;
     (ii) Purchaser is able to bear the economic and financial risk of the purchase of the Securities for an indefinite period of time, and is aware that it may lose the entire amount of its investment;
     (iii) the Purchaser is acquiring the Securities purchased hereunder or acquired pursuant hereto for its own account with the present intention of holding such Securities for investment purposes and that it has no intention of selling such securities in a public distribution in violation of the federal securities laws or any applicable state securities laws;
     (iv) the execution, delivery, and performance of this Agreement and such other documents or certificates contemplated hereby have been duly authorized by Purchaser and do not require Purchaser to obtain any consent or approval that has not been obtained and do not contravene or result in a default under any provision of any law or regulation applicable to Purchaser or other governing documents or any agreement or instrument to which Purchaser is a party or by which Purchaser is bound;

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     (v) this Agreement constitutes the legal, valid and binding obligation of Purchaser, enforceable against Purchaser in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium, or other laws affecting creditors’ rights generally and limitations on the availability of equitable remedies; and
     (vi) in no case will the Seller be obligated on or after the Closing for any costs, commissions, expenses or fees incurred for the benefit of Purchaser by, or otherwise payable to, any investment banker, broker, finder or other intermediary that has been retained by or is authorized to act on behalf of Purchaser in connection with the transactions contemplated by this Agreement.
     (b) Purchaser acknowledges that both Seller and Purchaser have material, non-public information that does not appear in public filings, and waives its right to assert any claims against the other party on account of such material non-public information other than pursuant to the indemnification provisions of Section 9.
5. Covenants.
     Section 5.01. Commercially Reasonable Efforts.
     (a) Except as otherwise provided in this Agreement, each of the parties will use its commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement. In furtherance and not in limitation of the foregoing, each of the parties agrees, provided that no material amount of monies, which in no event shall exceed $100,000, are required to be expended by either of the parties, to (i) take any act, make any undertaking or receive any clearance or approval required by any governmental entity or applicable law and (iii) not to take any action that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated hereby.
     (b) Each of the parties will, and will cause its respective affiliates to, (i) respond as promptly as practicable to any inquiries or requests received from any governmental entity for additional information or documentation, and (ii) not enter into any agreement with any governmental entity not to consummate the transactions contemplated by this Agreement, except with the prior consent of the other party (which shall not be unreasonably withheld or delayed).
     (c) Each party shall (i) promptly notify the other party of any written communication to that party or its affiliates from any governmental entity and, subject to applicable law and except with respect to filings required by the Securities and Exchange Commission, permit the other party to review in advance any proposed written communication to any of the foregoing; (ii) not agree to participate, or to permit its affiliates to participate, in any substantive meeting or discussion with any governmental entity in respect of any filings, investigation or inquiry concerning this Agreement or the transactions contemplated hereby unless it consults with the other party in advance and, to the extent permitted by such governmental entity, gives the other party the opportunity to attend and participate at any such meeting; and (iii) unless otherwise required by law, furnish the other party with copies of all correspondence, filings, and communications (and memoranda setting forth the substance thereof) between it and its affiliates and their respective representatives on the one hand, and any governmental entities or members of their respective staffs on the other hand, with respect to this Agreement and the transactions contemplated hereby.

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     Section 5.02. Certain Filings. The parties shall cooperate with one another and use their commercially reasonable efforts, unless otherwise required by law and except with respect to filings required by the Securities and Exchange Commission, (i) in determining whether any action by or in respect of, or filing with, any governmental entity is required, or any actions, consents, approvals or waivers are required to be obtained from parties to any material contracts, in connection with the consummation of the transactions contemplated by this Agreement and (ii) in taking such actions or making any such filings, furnishing information required in connection therewith and seeking in a timely manner to obtain any such actions, consents, approvals or waivers.
     Section 5.03. Public Announcements. The parties will consult with each other before issuing any press release or making any public statement with respect to this Agreement or the transactions contemplated hereby and, except with respect to filings required by the Securities and Exchange Commission or as may be required by applicable law or any listing agreement with any national securities exchange, will not issue any such press release or make any such public statement prior to such consultation.
     Section 5.04. Notices of Certain Events. The parties shall use commercially reasonable efforts to promptly notify the other of:
     (a) any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement;
     (b) any notice or other communication from any governmental entity in connection with the transactions contemplated by this Agreement; and
     (c) any actions, suits, claims, investigations or proceedings commenced or, to its knowledge, threatened against, relating to or involving or otherwise affecting Purchaser, Seller or any of their respective affiliates that relate to the consummation of the transactions contemplated by this Agreement.
     Section 5.05. Further Assurances. Seller acknowledges and agrees that Purchaser’s delivery of the Purchase Price at Closing to the Seller is in reliance on and induced by the Seller’s agreement to use best efforts to cause the Company to make all filings, promptly after the date of the Annual Meeting, required under applicable securities laws to effectuate the transactions as contemplated herein, including, without limitation, the filing of any proxy materials in accordance with Regulation 14A under the Exchange Act.
6. Definitions. For the purposes of this Agreement, the following terms have the meanings set forth below:
     “Exchange Act” means the Securities and Exchange Act of 1934, as amended from time to time, and all rules and regulations promulgated thereunder.
     “Material Adverse Effect” means any material adverse effect on the business, financial condition, assets, liabilities or results of operations of the Company and its Subsidiaries, taken as a whole, or on the ability of Seller to consummate the transactions contemplated hereby; provided that “material adverse effect” shall not include any matters or actions described in (a) any documents or other written materials furnished to Purchaser by the Company or Seller at any time prior to the Closing Date, (b) any filings made by the Company with the Securities and Exchange Commission (other than with respect to the

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general matters referred to in the “Risk Factors” provisions of such filings) at any time prior to the closing Date, or (c) any other matter relating to the Company disclosed either verbally by the Seller or in writing to Purchaser by the Company or Seller at any time prior to the Closing Date.
     “Person” means an individual, a corporation, a limited liability company, an association, a joint-stock company, a business trust or other similar organization, a partnership, a joint venture, a trust, an unincorporated organization or a government or any agency, instrumentality or political subdivision thereof.
     “Securities Act” means the Securities Act of 1933, as amended from time to time, and all rules and regulations promulgated thereunder.
     “Securities and Exchange Commission” means the United States Securities and Exchange Commission and any governmental body or agency succeeding to the functions thereof.
     “Subsidiaries” means any corporation or other entity of which the securities or other ownership interests having the voting power to elect a majority of the board of directors or other governing body are, at the time of determination, owned by the Company, directly or through one or more Subsidiaries.
7. Termination.
     Section 7.01. Termination. This Agreement may be terminated and the Sale Transaction may be abandoned at any time prior to the Closing:
     (a) by mutual written agreement of Seller and Purchaser;
     (b) by either of Seller or Purchaser, if:
     (i) the Sale Transaction has not been consummated on or before the date which is 200 days after the date of the Annual Meeting (such date, the “End Date”); provided that the right to terminate this Agreement pursuant to this Section 7.01(b)(i) shall not be available to any party whose breach of any provision of this Agreement results in the failure of the Sale Transaction to be consummated by such time; or
     (ii) there shall be any law or regulation in effect that makes consummation of the Sale Transaction illegal or otherwise prohibited, or any judgment, injunction, order, writ or decree of any governmental entity enjoining Seller or Purchaser from consummating the Sale Transaction is entered and such judgment, injunction, decree or order shall have become final and nonappealable (provided that the right to terminate this Agreement pursuant to this Section 7.01(b)(ii) shall not be available to any party whose material failure to fulfill any obligation under this Agreement, has been the principal cause of or resulted in such judgment, injunction, decree or order).
     (c) by Purchaser, if Seller shall have breached any representation or warranty contained in this Agreement, or failed to perform any obligation, agreement or covenant on the part of Seller set forth in this Agreement, which breach or failure to perform (i) would cause any of the conditions set forth in Section 1(b) not to be satisfied, and (ii) shall not have been cured (if curable) by Seller within 20 business days after written notice from Purchaser (or such longer period during which Seller exercises reasonable best efforts to cure);

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     (d) by Seller, if Purchaser shall have breached any representation or warranty contained in this Agreement or failed to perform any obligation, agreement, or covenant on the part of Purchaser set forth in this Agreement, which breach or failure to perform (i) would cause any of the conditions set forth in Section 1(c) of this Agreement not to be satisfied, and (ii) shall not have been cured (if curable) by Purchaser within 20 business days after written notice from Seller (or such longer period during which Purchaser exercises reasonable best efforts to cure).
     The party desiring to terminate this Agreement pursuant to this Section 7.01 (other than pursuant to Section 7.01(a)) shall give notice of such termination to the other party.
     Section 7.02. Effect of Termination. If this Agreement is terminated pursuant to Section 7.01, this Agreement shall become void and of no effect with no liability on the part of any party (or any shareholder, director, officer, employee, agent, consultant, representative or affiliate of such party) to the other party hereto, provided that, if such termination shall result from the failure of either party to (i) fulfill a condition to the performance of the obligations of the other party or (ii) perform a covenant hereof, such party shall be fully liable for any and all liabilities and damages incurred or suffered by the other party as a result of such failure. The provisions of Section 7.01 and this Section 7.02, shall survive any termination hereof pursuant to Section 7.01.
8. Securities Law Restrictions on Transfer of the Securities. The Securities are restricted securities transferable only pursuant to (i) public offerings registered under the Securities Act, (ii) Rule 144 or Rule 144A of the Securities and Exchange Commission (or any similar rule or rules then in force) if such rule is available and (iii) subject to the conditions specified in the Registration Rights Agreement, any other legally available means of transfer.
9. Indemnification.
     Section 9.01 Survival of Representations and Warranties. The representations and warranties in this Agreement or in any writing delivered by any party to another party in connection with this Agreement shall survive the Closing as follows:
     (a) the representations and warranties in Section 3(a)(i), Section 3(a)(ii), Section 3(a)(iii) and Section 3(a)(iv) shall survive Closing indefinitely; and
     (b) all other representations and warranties in this Agreement or in any writing delivered by any party to another party in connection with this Agreement shall terminate on the date which is 90 days after the Closing;
provided that any representation or warranty in respect of which indemnity may be sought in good faith under Section 9.02 below, and the indemnity with respect thereto, shall survive the time at which it would otherwise terminate pursuant to this Section 9.01 if written notice of the inaccuracy or breach thereof giving rise to such right of indemnity shall have been given to the party (in reasonable detail) against whom such indemnity may be sought prior to such time (regardless of when the losses in respect thereof may actually be incurred). The representations and warranties in this Agreement or in any writing delivered by any party to another party in connection with this Agreement shall survive for the periods set forth in this Section 9.01 and shall in no event be affected by any investigation, inquiry or examination made for or on behalf of any party, or the knowledge of any party’s officers, directors, stockholders, employees or agents (other than as otherwise provided with respect to Section 3(a)(vi)) or the acceptance by any party of any certificate or opinion hereunder. The parties acknowledge that, subject to Section 9.01(a)(ii), indemnification hereunder with respect to the breach of any covenant or agreement contained herein, including any breach of any covenant or agreement contained in Section 1, Section 5, Section 7 or this Section 9, shall not be subject to any time or other limitations (other than those imposed under any applicable statute of limitations).

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     Section 9.02 Indemnification.
     (a) Seller shall indemnify Purchaser and its affiliates, stockholders, officers, directors, employees, agents, partners, representatives, successors and assigns (collectively, the “Purchaser Parties”) and save and hold each of them harmless against and pay on behalf of or reimburse such Purchaser Parties as and when incurred for any loss, liability, cost, damage, deficiency, tax, penalty, fine or expense, whether or not arising out of third-party claims (including interest, penalties, reasonable attorneys’ fees and expenses and all amounts paid in investigation, defense or settlement of any of the foregoing) (collectively, “Losses”), which any such Purchaser Party may suffer, sustain or become subject to, as a result of, in connection with, relating or incidental to or by virtue of: (i) any breach by Seller of any representation or warranty made by the Seller in this Agreement; or (ii) any nonfulfillment or breach of any covenant, agreement or other provision by the Seller under this Agreement (other than with respect to the last sentence of Section 3(b)); provided that Seller’s aggregate liability under clause (a) above (other than with respect to the representations and warranties contained in Section 3(a)(i), Section 3(a)(ii), Section 3(a)(iii) and Section 3(a)(iv)), shall in no event exceed an aggregate amount equal to 10% of the Purchase Price (with it being understood, however, that nothing in this Agreement (including this Section 9.02(a)) shall limit or restrict any of the Purchaser Parties’ right to maintain or recover any amounts in connection with any action or claim based upon fraud or intentional misrepresentation).
     (b) Purchaser agrees to and shall indemnify Seller and its affiliates (other than the Company), stockholders, officers, directors, employees, agents, partners, representatives, and their successors and assigns (“Seller Parties”) and save and hold each of them harmless against and pay on behalf of or reimburse such Seller Parties as and when incurred for any Losses which Seller Parties may suffer, sustain or become subject to, as the result of, in connection with, relating or incidental to or by virtue of (i) any breach by Purchaser of any representation or warranty made by the Purchaser in this Agreement; or (ii) any nonfulfillment or breach of any covenant, agreement or other provision by the Purchaser under this Agreement; provided that Purchaser’s aggregate liability under clause (b)(i) above (other than with respect to the representations and warranties contained in Section 4(a)(iv), Section 4(a)(v) or Section 4(a)(vi)) shall not exceed an aggregate amount equal to 10% of the Purchase Price (with it being understood, however, that nothing in this Agreement (including this Section 9.02(b)) shall limit or restrict any of the Seller Parties’ right to maintain or recover any amounts in connection with any action or claim based upon fraud or intentional misrepresentation).
     (c) Except as otherwise provided herein, any indemnification of the Purchaser Parties or Seller pursuant to this Section 9.02 shall be effected by wire transfer of immediately available funds from Seller or Purchaser, as the case may be, to an account(s) designated by the applicable Purchaser Party or Seller, as the case may be, within ten days after the final determination of a court of competent jurisdiction of the amount of indemnification due hereunder.
     (d) Seller hereby agrees that it shall not make any claim for indemnification against Purchaser, the Company or any of their respective affiliates by reason of the fact that Seller is or was a shareholder, director, officer or agent of the Company or any of its affiliates or is or was serving at the request of the Company or any of its Affiliates as a partner, trustee, director, officer or agent of another entity (whether such claim is for judgments, damages, penalties, fines, costs, amounts paid in settlement, losses, expenses or otherwise and whether such claim is pursuant to any statute, charter document, bylaw, agreement or otherwise) with respect to any action, suit, proceeding, complaint, claim or demand brought by any of the Purchaser Parties against Seller pursuant to this Agreement or applicable law or otherwise, and Seller hereby acknowledges and agrees that it shall not have any claim or right to contribution or indemnity from the Company or any of its affiliates with respect to any amounts paid by it pursuant to this Agreement or otherwise. Effective upon the Closing, Seller hereby irrevocably assigns to Purchaser its rights to any and all claims against the Company arising or relating to events occurring on or prior to

8

 

the Closing Date of any kind or nature whatsoever, whether in its or its representatives’ capacity as a shareholder, officer or director of the Company or any of its affiliates or otherwise, in each case whether absolute or contingent, liquidated or unliquidated, known or unknown, and whether arising under any agreement or understanding (other than this Agreement and any of the other documents executed and delivered in connection herewith) or otherwise at law or equity, and Seller agrees that it shall not seek to recover any amounts in connection therewith or thereunder from the Company or any of its affiliates.
10. General Provisions.
     (a) Expenses. Purchaser and Seller will each bear their respective costs and expenses (including attorneys’ fees and expenses) incurred in connection with the preparation, negotiation, and consummation of this Agreement and the transactions contemplated hereby.
     (b) Notices. Any notice, request, instruction, or other document to be given hereunder by a party hereto shall be in writing and shall be deemed to have been given, (i) when received if given in person, (ii) on the date of transmission if sent by telex, telecopy, or other wire transmission (with answer back confirmation of such transmission), (iii) upon delivery, if delivered by a nationally known commercial courier service providing next day delivery service (such as Federal Express), or (iv) upon delivery, or refusal of delivery, if deposited in the U.S. mail, certified or registered mail, return receipt requested, postage prepaid:
     If to Purchaser, to it at:
Ohio Plastics, LLC
c/o H.I.G. Capital, LLC
1001 Brickell Bay Drive, 26th Floor
Miami, FL 33131
Attention:    John Bolduc
Tiffany Kosch
Facsimile: (305) 379-3655
with a copy to (which shall not constitute notice):

Greenberg Traurig, LLP
77 West Wacker Drive
Suite 2400
Chicago, Illinois 60601
Attention:    E. Paul Quinn
Jeffrey L. Terry
Facsimile: (312) 456-8435
If to the Seller, to it at:
Glencore Finance AG
Baarermattstrasse 3
CH-6341 Baar
Switzerland
Attention: Steven N. Isaacs
Facsimile: 011 41 41 709 2848

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with a copy to (which shall not constitute notice):
Cadwalader, Wickersham & Taft LLP
One World Financial Center
New York, New York 10281
Attention: Matthew M. Weber
Facsimile: (212) 504-6666
     (c) Complete Agreement. This Agreement and those documents expressly referred to herein embody the complete agreement and understanding among the parties and supersede and preempt any prior understandings, agreements or representations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.
     (d) Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.
     (e) Counterparts. This Agreement may be executed simultaneously in two or more counterparts (including by means of facsimile), any one of which need not contain the signatures of more than one party, but all such counterparts taken together shall constitute one and the same Agreement.
     (f) Successors and Assigns. Except as otherwise provided herein, this Agreement shall bind and inure to the benefit of and be enforceable by any of the parties hereto and their respective successors and assigns (including subsequent holders of Securities).
     (g) Descriptive Headings; Interpretation. The descriptive headings of this Agreement are inserted for convenience only and do not constitute a part of this Agreement. The use of the word “including” in this Agreement shall be by way of example rather than by limitation.
     (h) Choice of Law. This Agreement shall be governed by and construed under the laws of the State of Delaware (without regard to conflict of laws principles), all rights and remedies being governed by said laws.
     (i) Venue; Jurisdiction. The parties hereto hereby irrevocably submit to personal jurisdiction of the state or federal court sitting in Wilmington, Delaware over any dispute arising out of or relating to this Agreement or any of the transactions contemplated hereby and each party hereby irrevocably agrees that all claims in respect of such dispute or any suit, action proceeding related thereto may be heard and determined in such courts. The parties hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection which they may now or hereafter have to the laying of venue of any such dispute brought in such court or any defense of inconvenient forum for the maintenance of such dispute. Each of the parties hereto agrees that a judgment in any such dispute may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. To the fullest extent permitted by law, (i) Seller hereby agrees that service of a complaint or other process may be made addressed to The Corporation Trust Company at the address provided below, and designates The Corporation Trust Company at such address as its agent and attorney-in-fact for service of process in the State of Delaware, such designation being irrevocable and coupled with an interest and (ii) Purchaser

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hereby agrees that service of a complaint or other process may be made addressed to The Corporation Trust Company, and designates The Corporation Trust Company at such address as its agent and attorney-in-fact for service of process in the State of Delaware, such designation being irrevocable and coupled with an interest, and such service being agreed by the parties to be sufficient for the service of legal process on each of the respective parties in the State of Delaware:
The Corporation Trust Company
1209 Orange Street
Wilmington, DE 19801
(302) 658-7581
     (j) Third-Party Beneficiary. The provisions hereof are solely for the benefit of the parties hereto and will not give rise to any rights in any other third party.
     (k) Remedies. The parties hereto agree and acknowledge that money damages may not be an adequate remedy for any breach of the provisions of this Agreement and that any party in its sole discretion may apply to any court of competent jurisdiction (without posting any bond or deposit) for specific performance and/or other injunctive relief in order to enforce or prevent any violations of the provisions of this Agreement. Except for remedies that cannot be waived as a matter of law or as otherwise specified in the first sentence of this Section 10(k), if the Closing occurs, indemnification pursuant to Section 9 will be the exclusive remedy for any breach of this Agreement (including any representation, warranty, covenant and agreement contained in this Agreement), other than in respect of claims based on fraud or intentional misrepresentation.
     (l) Amendment and Waiver. The provisions of this Agreement may be amended and waived only with the prior written consent of the parties hereto.
     (m) Waiver of Jury Trial. Each of the parties to this Agreement irrevocably and unconditionally waives the right to a trial by jury in any action, suit, or proceeding arising out of, connected with, or relating to this Agreement, the matters contemplated hereby, or the actions of the parties in the negotiation, administration, performance, or enforcement of this Agreement.
     (n) Delivery by Facsimile; E-mail. This Agreement and each other agreement or instrument entered into in connection herewith or therewith or contemplated hereby or thereby, and any amendments hereto or thereto, to the extent signed and delivered by means of a facsimile machine or e-mail, shall be treated in all manner and respects as an original signed version thereof delivered in person. At the request of any party hereto or to any such agreement or instrument, each other party hereto or thereto shall re-execute original forms thereof and deliver them to all other parties. No party hereto or to any such agreement or instrument shall raise the use of a facsimile machine or e-mail to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a facsimile machine or e-mail as a defense to the formation or enforceability of a contract and each such party forever waives any such defense.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

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     IN WITNESS WHEREOF, the parties hereto have executed this Securities Purchase Agreement on the date first written above.
         
  Ohio Plastics, LLC
 		  
  By:  Ohio Plastics Financing Inc.    
  Its:  Manager
 		  
  By:   /s/ John Bolduc   
    Name:   John Bolduc   
    Its:  Director and President 
 
[Signature Page to Securities Purchase Agreement]

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  Glencore Finance AG
 		  
  By:   /s/ Steven Isaacs                   /s/ Barbara Wolfensberger   
    Name:   Steven Isaacs                 Barbara Wolfensberger  
    Its:  Director                            Director
 
[Signature Page to Securities Purchase Agreement]

13

EX-99.6 4 g09897exv99w6.htm EX-99.6 ACKNOWLEDGEMENT OF RESTRICTIONS EX-99.6 Acknowledgement of Restrictions
 

Exhibit 99.6
Acknowledgement of Restrictions
October 2, 2007
By their execution of this document, Glencore Finance AG (“Glencore”) and Ohio Plastics, LLC (the “Transferee”) hereby acknowledge and agree that the shares of 6% Series B Convertible Preferred Stock of the Company to be transferred by Glencore to the Transferee are subject to certain voting restrictions and an irrevocable proxy set forth in the Voting Agreement dated as of October 2, 2007 by and among the Company and Glencore, a copy of which is attached hereto and incorporated herein by reference.
[Signatures on following page]

 

 

IN WITNESS WHEREOF, the undersigned have executed this Acknowledgement of Restrictions as of the date first written above.
         
  Glencore Finance AG
 		  
  By:   /s/ Steven Isaacs                   /s/ Barbara Wolfensberger   
    Name:   Steven Isaacs                 Barbara Wolfensberger  
    Its:  Director                            Director
 
         
  OHIO PLASTICS, LLC
 		  
     By: Ohio Plastics Financing, Inc.    
    Title: Manager   
       
 
         
     
  By:   /s/ Tiffany Kosch    
    Name:   Tiffany Kosch   
    Title:   Secretary   

 

 

         
Voting Agreement
See attached.

 

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