-----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, DtsdAMmba6Wdbw9g90gR7EeUFho3WdflbvE65qwHAyH3LVDPb0WFg6LdIXUCk3Bf 7XFhgnWuBRkP+JKQEXVZuw== 0000950131-02-004253.txt : 20021112 0000950131-02-004253.hdr.sgml : 20021111 20021108181106 ACCESSION NUMBER: 0000950131-02-004253 CONFORMED SUBMISSION TYPE: SC 13E3 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20021112 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: BWAY CORP CENTRAL INDEX KEY: 0000943897 STANDARD INDUSTRIAL CLASSIFICATION: METAL CANS [3411] IRS NUMBER: 363624491 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: SC 13E3 SEC ACT: 1934 Act SEC FILE NUMBER: 005-48540 FILM NUMBER: 02814895 BUSINESS ADDRESS: STREET 1: 8607 ROBERTS DR STREET 2: STE 250 CITY: ATLANTA STATE: GA ZIP: 30350 BUSINESS PHONE: 4045870888 MAIL ADDRESS: STREET 1: 8607 ROBERTS DRIVE SUITE 250 CITY: ATLANTA STATE: GA ZIP: 30350 FORMER COMPANY: FORMER CONFORMED NAME: BROCKWAY STANDARD HOLDINGS CORP DATE OF NAME CHANGE: 19950413 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: BWAY CORP CENTRAL INDEX KEY: 0000943897 STANDARD INDUSTRIAL CLASSIFICATION: METAL CANS [3411] IRS NUMBER: 363624491 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: SC 13E3 BUSINESS ADDRESS: STREET 1: 8607 ROBERTS DR STREET 2: STE 250 CITY: ATLANTA STATE: GA ZIP: 30350 BUSINESS PHONE: 4045870888 MAIL ADDRESS: STREET 1: 8607 ROBERTS DRIVE SUITE 250 CITY: ATLANTA STATE: GA ZIP: 30350 FORMER COMPANY: FORMER CONFORMED NAME: BROCKWAY STANDARD HOLDINGS CORP DATE OF NAME CHANGE: 19950413 SC 13E3 1 dsc13e3.txt SCHEDULE 13E-3 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13E-3 RULE 13e-3 TRANSACTION STATEMENT UNDER SECTION 13(e) OF THE SECURITIES EXCHANGE ACT OF 1934 BWAY Corporation - -------------------------------------------------------------------------------- (Name of Issuer) BWAY Corporation BCO Holding Company BCO Acquisition, Inc. BWAY Finance Corp. Kelso Investment Associates VI, L.P. KEP VI, LLC Jean-Pierre Ergas Warren Hayford Mary Lou Hayford Kevin Kern Thomas Eagleson Kenneth Roessler Jeffrey O'Connell - -------------------------------------------------------------------------------- (Names of Person(s) Filing Statement) Common Stock, par value $.01, and related Preferred Share Purchase Rights - -------------------------------------------------------------------------------- (Title and Class of Securities) 056039100 - -------------------------------------------------------------------------------- (CUSIP Number) Kevin Kern James J. Connors II BWAY Corporation BCO Holding Company 8607 Roberts Drive, Suite 250 BCO Acquisition, Inc. Atlanta, GA 30350 BWAY Finance Corp. (770) 645-4800 Kelso Investment Associates VI, L.P. KEP VI, LLC 320 Park Avenue New York, NY 10022 (212) 751-3939 - -------------------------------------------------------------------------------- (Name, Address and Telephone Numbers of Person Authorized to Receive Notices and Communications on Behalf of Person(s) Filing Statement) Copies to: James S. Rowe Brian R. Boch Kirkland & Ellis 200 East Randolph Drive Chicago, IL 60601 (312) 861-2000 and Margaret A. Davenport Debevoise & Plimpton 919 Third Avenue New York, NY 10022 (212) 909-6000 This statement is filed in connection with (check the appropriate box): a. [X] The filing of solicitation materials or an information statement subject to Regulation 14A (S)(S) 240.14a-1 through 240.14b-2), Regulation 14C (S)(S) 240.14c-1 through 240.15c-101) or Rule 13e-3(c) (S) 240-13e-3(c)) under the Securities Exchange Act of 1934. b. [_] The filing of a registration statement under the Securities Act. c. [_] A tender offer. d. [_] None of the above. Check the following box if the soliciting materials or information statement referred to in checking box (a) are preliminary copies: [X] Calculation of Filing Fee Transaction Valuation* Amount of Filing Fee** $195,632,051 $17,999 - -------------------------------------------------------------------------------- * Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined): The proposed maximum aggregate value of the transaction for purposes of calculating the filing fee is $195,632,051. The filing fee was determined by adding (a) the product of (i) the 8,708,626 shares of Common Stock that are proposed to be retired or exchanged in the merger and (ii) the merger consideration of $20.00 to be paid with respect to each share of Common Stock outstanding immediately prior to the merger, plus (b) $21,459,531 expected to be paid upon cancellation or exchange of outstanding options (the "Total Consideration"). ** The filing fee equals the product of 0.000092 multiplied by the Total Consideration. [X] Check the box if any part of the fee is offset as provided by Section 240.0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. Amount Previously Paid: $17,999 Form or Registration No.: Preliminary Proxy Statement on Schedule 14A Filing Party: BWAY Corporation Date Filed: November 8, 2002 Neither the Securities and Exchange Commission nor any state securities commission has: (i) approved or disapproved this transaction, (ii) passed on the merits or fairness of this transaction or (iii) passed upon the adequacy or accuracy of the disclosure in this document. Any representation to the contrary is a criminal offense. INTRODUCTION This Rule 13e-3 transaction statement on Schedule 13E-3 (this "Schedule 13E-3") is being filed with the Securities and Exchange Commission (the "SEC") by (1) BWAY Corporation, a Delaware corporation ("BWAY"), (2) BCO Holding Company, a Delaware corporation ("BCO Holding"), (3) BCO Acquisition, Inc., a Delaware corporation ("BCO Acquisition"), (4) BWAY Finance Corp., a Delaware corporation ("BWAY Finance"), (5) Kelso Investment Associates VI, L.P., a Delaware limited partnership ("KIA VI"), (6) KEP VI, LLC, a Delaware limited liability company ("KEP VI"), (7) Jean-Pierre Ergas, (8) Warren Hayford, (9) Mary Lou Hayford, (10) Kevin Kern, (11) Thomas Eagleson, (12) Kenneth Roessler and (13) Jeffrey O'Connell. This Schedule 13E-3 relates to the Agreement and Plan of Merger (the "Merger Agreement"), dated as of September 30, 2002, by and among BWAY, BCO Holding and BCO Acquisition. If the Merger Agreement and the merger transaction contemplated thereby (the "Merger") are approved by BWAY's stockholders and the other conditions to the closing of the Merger are satisfied or waived, BCO Acquisition will be merged with and into BWAY, with BWAY being the surviving corporation. After the Merger, BCO Holding will own all of the capital stock of BWAY, and BCO Holding will be owned by affiliates of Kelso & Company, L.P. ("Kelso"), a New York based sponsor of private equity transactions, and certain members of BWAY's senior management team. Immediately prior to the Merger, each of Jean-Pierre Ergas, Warren Hayford, Mary Lou Hayford, Kevin Kern, Thomas Eagleson, Kenneth Roessler and Jeffrey O'Connell (the "Continuing Investors") will exchange some of their shares of BWAY common stock or some of their BWAY stock options for equity interests in BCO Holding. Each Continuing Investor will sell or "cash-out" the remainder of his or her current equity interests in BWAY in the Merger. Each Continuing Investor's shares of BWAY common stock, including the shares underlying his or her BWAY stock options, will be valued at $20.00 per share. As a result of the Merger, BWAY will be a privately held company and there will be no public market for its common stock. BWAY will also apply to the New York Stock Exchange for the delisting of shares of BWAY common stock and to the SEC for the deregistration of BWAY common stock under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). BWAY, however, will likely be required to resume filing periodic reports with the SEC as a result of its issuing debt securities registered under the Securities Act of 1933, as amended. Concurrently with the filing of this Schedule 13E-3, BWAY is filing with the SEC a preliminary proxy statement on Schedule 14A pursuant to Section 14(a) of the Exchange Act (the "Proxy Statement") relating to a special meeting of stockholders of BWAY. At the meeting, stockholders of BWAY will consider and vote upon a proposal to approve and adopt the Merger Agreement and the Merger. The information in the Proxy Statement, including all annexes thereto, is hereby expressly incorporated by reference into this Schedule 13E-3, and the responses to each item are qualified in their entirety by the provisions of the Proxy Statement and the annexes thereto. As of the date hereof, the Proxy Statement is in preliminary form and is subject to completion or amendment. Capitalized terms used but not defined in this Schedule 13E-3 shall have the meanings given to such terms in the Proxy Statement. The information contained in this Schedule 13E-3 and/or the Proxy Statement concerning BWAY was supplied by BWAY and none of the other filing persons takes responsibility for the accuracy of such information. Similarly, the information contained in this Schedule 13E-3 and/or the Proxy Statement concerning each filing person other than BWAY was supplied by each such filing person and no other filing person, including BWAY, takes responsibility for the accuracy of any information not supplied by such filing person. ITEM 1. Summary Term Sheet. Regulation M-A Item 1001 The information set forth in the Proxy Statement under the caption "Summary Term Sheet" is incorporated herein by reference. ITEM 2. Subject Company Information. Regulation M-A Item 1002 (a) Name And Address. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Summary - The Companies Information Concerning BWAY (b) Securities. The information set forth in the Proxy Statement under the caption "The Special Meeting - Record Date; Voting Rights" is incorporated herein by reference. (c) Trading Market And Price. The information set forth in the Proxy Statement under the caption "Market Prices And Dividend Information" is incorporated herein by reference. (d) Dividends. The information set forth in the Proxy Statement under the caption "Market Prices And Dividend Information" is incorporated herein by reference. (e) Prior Public Offerings. None. (f) Prior Stock Purchases. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Market Prices And Dividend Information Transactions in Shares of Common Stock by Certain Persons ITEM 3. Identity and Background of Filing Person. Regulation M-A Item 1003 (a) Name And Address. The following sets forth the name, address and telephone number of the filing persons: BWAY Corporation, the subject company 8607 Roberts Drive, Suite 250 Atlanta, GA 30350 (770) 645-4800 BCO Holding Company BCO Acquisition, Inc. BWAY Finance Corp. Kelso Investment Associates VI, L.P. KEP VI, LLC 320 Park Avenue, 24th Floor New York, NY 10022 (212) 751-3939 Jean-Pierre Ergas, Chairman and Chief Executive Officer of BWAY Warren Hayford, Vice Chairman and Director of BWAY Mary Lou Hayford, stockholder of BWAY Kevin Kern, Vice President of Administration and Chief Financial Officer of BWAY Thomas Eagleson, Executive Vice President Manufacturing/Engineering of BWAY Kenneth Roessler, Executive Vice President Sales and Marketing of BWAY Jeffrey O'Connell, Vice President and Treasurer of BWAY c/o BWAY Corporation 8607 Roberts Drive, Suite 250 Atlanta, GA 30350 (770) 645-4800 The following sets forth the names and titles of the directors and executive officers of BWAY. The business address and telephone number of each such person listed is: c/o BWAY Corporation, 8607 Roberts Drive, Suite 250, Atlanta, GA 30350, (770) 645-4800. Jean-Pierre Ergas, Chairman and Chief Executive Officer Kevin Kern, Vice President of Administration and Chief Financial Officer Thomas Eagleson, Executive Vice President Manufacturing/Engineering Kenneth Roessler, Executive Vice President Sales and Marketing Warren Hayford, Vice Chairman and Director Thomas Donahoe, Director Alexander Dyer, Director John Jones, Director John Puth, Director John Stirrup, Director The following sets forth the names and titles of the directors and executive officers of BCO Holding, BCO Acquisition and BWAY Finance. The business address and telephone number of each such person listed is: c/o Kelso & Company, L.P., 320 Park Avenue, 24th Floor, New York, NY 10022, (212) 751-3939. Thomas R. Wall, IV, President and Director David I. Wahrhaftig, Vice President, Treasurer and Director James J. Connors II, Vice President, Secretary and Director Stanley de J. Osborne, Vice President, Assistant Treasurer and Assistant Secretary Howard A. Matlin, Vice President The following sets forth the name, address and telephone number of the general partner of KIA VI: Kelso GP VI, LLC c/o Kelso & Company, L.P. 320 Park Avenue, 24th Floor New York, NY 10022 (212) 751-3939 The following sets forth the names and titles of each managing member of Kelso GP VI, LLC and KEP VI. The business address and telephone number of each such person listed is: c/o Kelso & Company, L.P., 320 Park Avenue, 24th floor, New York, NY 10022, (212) 751-3939. Frank T. Nickell, President and Chief Executive Office, Managing Member Thomas R. Wall, IV, Managing Member George E. Matelich, Managing Member Michael B. Goldberg, Managing Member David I. Wahrhaftig, Managing Member Frank K. Bynum, Jr., Managing Member Philip E. Berney, Managing Member BCO Holding, BCO Acquisition, BWAY Finance, KIA VI and KEP VI do not believe that they are affiliates of BWAY at this time. They filed this Schedule 13E-3 solely in light of their relationship with the Continuing Investors and the fact that they have noticed that in some instances involving similar transactions, persons similarly situated to them have filed a Schedule 13E-3. BCO Holding, BCO Acquisition, BWAY Finance, KIA VI and KEP VI do not believe this relationship, which consists of (1) an understanding with each Continuing Investor concerning the exchange of some of such Continuing Investor's shares of BWAY common stock or BWAY stock options for equity interests in BCO Holding immediately prior to the Merger and (2) the agreement of each of Mr. Ergas, Mr. Hayford and Mrs. Hayford to vote to approve and adopt the Merger Agreement and the Merger, renders BCO Holding, BCO Acquisition, BWAY Finance, KIA VI or KEP VI an affiliate of BWAY. (b) Business And Background Of Entities. The information set forth in the Proxy Statement under the captions "Summary - The Companies," "Information Concerning BWAY" and "Information Concerning BCO Holding, BCO Acquisition, BWAY Finance and Other Participating BWAY Affiliates" is incorporated herein by reference. KIA VI, a Delaware limited partnership, and KEP VI, a Delaware limited liability company, are private investment funds formed by Kelso. Kelso GP VI, LLC is a Delaware limited liability company, the principal business of which is serving as the general partner of KIA VI. (c) Business And Background Of Natural Persons. The following sets forth the business and background of each executive officer and director of BWAY. The current business address and telephone number of each such person is c/o BWAY Corporation, 8607 Roberts Drive, Suite 250, Atlanta, GA 30350, (770) 645-4800. Jean-Pierre Ergas became Chairman and Chief Executive Officer of BWAY in January 2000. Mr. Ergas has served as a director of BWAY since August 1995 and served as Vice-Chairman of the BWAY board from July 1999 to December 1999. Mr. Ergas served as Executive Vice President, Europe of Alcan Aluminium Limited, President of Alcan Europe Limited, Executive Chairman of British Alcan Aluminium plc and Chief Executive Officer of Alcan Deutschland GmbH from June 1996 to December 1999. Mr. Ergas served as Senior Advisor to the Chief Executive Officer of Alcan Aluminium Limited from January 1995 to June 1996 and served as a Trustee in Residence of DePaul University from February 1994 to December 1994. Prior thereto, Mr. Ergas served as Senior Executive Vice President of Pechiney S.A. and as a member of the Pechiney Group Executive Committee from 1987 to January 1994 and also held several management positions with various subsidiaries of Pechiney S.A., serving as: Chief Executive Officer of American National Can Company from 1989 to January 1994 and Chairman of the Board from 1991 to January 1994; Chief Executive Officer of Cegedur Pechiney from 1982 to 1988 and Chairman of the Board from 1987 to 1988; Chief Executive Officer of Cebal S.A. from 1974 to 1982 and Chairman of the Board during 1982; and Marketing Manager for Pechiney Aluminum from 1967 to 1974. Mr. Ergas is a trustee of DePaul and AUP Universities and a director of Dover Corporation and Compagnie Plastic Omnium. Mr. Ergas is a citizen of the United States. Kevin Kern has been Vice President of Administration and Chief Financial Officer of BWAY since February 2001. From May 1995 until February 2001, Mr. Kern served as Vice President, Corporate Controller of BWAY. From 1991 to May 1995, Mr. Kern was Controller of McKechnie Plastics Components, Inc. From 1981 to 1991, Mr. Kern was employed by Ernst & Young, most recently as a Senior Audit Manager from 1988 to 1991. Mr. Kern is a citizen of the United States. Thomas Eagleson has served as Executive Vice President Manufacturing/Engineering of BWAY since July 2000. Prior thereto, Mr. Eagleson held the positions of Senior Vice President of American National Can from 1993 to 1998, Vice President Manufacturing Food/General Line from 1990 to 1993, Vice President Manufacturing Beverage from 1988 to 1990, Vice President Metal Integration Metal Container from 1987 to 1988, Vice President Manufacturing Food/General Line of National Can Corp from 1985 to 1987 and Manager of Manufacturing Food/General Line of National Can Corp from 1983 to 1985. From 1970 to 1983, Mr. Eagleson held positions of increasing responsibility within the manufacturing organization of National Can Corp. Mr. Eagleson is a citizen of the United States. Kenneth Roessler has served as Executive Vice President of Sales and Marketing of BWAY since March 2000. From June 1993 to February 2000, Mr. Roessler served in various senior management positions with Southcorp Packaging USA, including Vice President of Sales and Marketing from 1998 to February 2000, Vice President and General Manager from 1995 to 1998 and Vice President and Chief Financial Officer from June 1993 through 1995. Prior to June 1993, Mr. Roessler held senior management positions with Berwind Corporation. Mr. Roessler is a citizen of the United States. Warren Hayford became non-executive Vice-Chairman of the Board of BWAY in December 1999. From 1989 until December 1999, Mr. Hayford served as Chairman of the Board and Chief Executive Officer of BWAY. Mr. Hayford has held a number of senior positions within the packaging industry over the past 35 years including President and Chief Operating Officer of Gaylord Container Corporation ("Gaylord"), a manufacturer of paper packaging products, 1986 to 1988, and Vice Chairman of Gaylord, 1988 through 1992. Mr. Hayford also served as a director of Gaylord from 1986 to 2002. Prior to Gaylord, Mr. Hayford served as President and a director of Gencorp, Inc., President and a director of Navistar International Corporation and Executive Vice President and a director of the Continental Group, Inc. Mr. Hayford is a citizen of the United States. Thomas Donahoe has served as a director of BWAY since August 1996. Mr. Donahoe was a partner in the accounting firm Price Waterhouse LLP (the "Firm") from 1970 until he retired in June 1996. As a partner in the Firm, Mr. Donahoe held a variety of positions including: Managing Partner-Operations of the Firm's Audit Business Advisory Practice, July 1995 to June 1996; Vice Chairman of the Firm, 1988 to June 1995; member of the Price Waterhouse World Firm General Council, 1985 to June 1995; Managing Partner of the Great Lakes Region, 1978 to June 1995; member of the Firm's Management Committee, 1978 to June 1995; member of the Firm's Policy Board, 1976 to June 1995; and Managing Partner of the Chicago Office, 1976 to June 1994. Mr. Donahoe is a director of Andrew Corporation and NICOR Inc. Mr. Donahoe also serves as a Director or Trustee of a number of not-for-profit entities, including: Chicago Botanic Garden, Chicago Central Area Committee, Executive Service Corp. of Chicago, Kohl's Children's Museum and Rush-Presbyterian-St. Luke's Medical Center. Mr. Donahoe is a citizen of the United States. Alexander Dyer has served as a director of BWAY since August 1995. Mr. Dyer served as Chairman of Bunzl plc from May 1993 to July 1996 and currently serves as its Deputy Chairman and as Chairman of its Remuneration Committee. Mr. Dyer retired from The BOC Group plc in January 1996, having served as its Chief Executive Officer and Deputy Chairman, in which capacities he served from November 1993 to January 1996. Prior thereto, Mr. Dyer served as Managing Director-Gases of The BOC Group plc from 1989 to 1993 and worked for Air Products and Chemicals Inc. for 26 years, serving most recently as Executive Vice President responsible for worldwide gases and equipment businesses from 1987 to 1989. Mr. Dyer is a citizen of the United States. John Jones has served as a director of BWAY since August 1996. From 1989 until his retirement in 1996, Mr. Jones served as Chairman, President and CEO of CBI Industries, Inc. Mr. Jones is a director of Amsted Industries, Inc., NICOR Inc. and Valmont Industries, Inc. Mr. Jones also serves as Trustee or Director on a number of not-for-profit entities, including Rush-Presbyterian-St. Luke's Medical Center. Mr. Jones is a citizen of the United States. John Puth has served as a director of BWAY since August 1995. Since December 1987, Mr. Puth has served as President of J.W. Puth Associates, an industrial consulting firm. From 1983 to 1987, Mr. Puth was Chairman and President of Clevite Industries, Inc., a manufacturer of industrial products. From 1975 to 1983, Mr. Puth was President and Chief Executive Officer of Vapor Corporation. Mr. Puth is a director of A.M. Castle & Co., L.B. Foster Company and US Freightways Corporation as well as several privately-held corporations. Since October 1998, Mr. Puth has been a general partner of BVCF III & IV Institutional Venture Capital Funds. Mr. Puth is a citizen of the United States. John Stirrup has served as a director of BWAY since 1989. Mr. Stirrup served as an independent consultant of BWAY from June 2000 until December 2001. Mr. Stirrup served as President and Chief Operating Officer of BWAY from 1995 to June 2000 and from 1989 to 1995 Mr. Stirrup served as President and Chief Operating Officer of Brockway Standard, Inc., which at the time was BWAY's principal operating subsidiary. Mr. Stirrup joined Brockway, Inc. (later acquired by Owens-Illinois Corporation) in 1980 and held a variety of positions including: Group Vice President of Metal & Plastic Packaging, Corporate Purchasing and Regional Airlines of Brockway, Inc., 1985 to 1988; Vice President of Sales and Marketing Brockway Glass Containers of Brockway, Inc., 1983 to 1985; Vice President of Operations Brockway Glass Containers of Brockway, Inc., 1981 to 1983; and Vice President of Manufacturing Brockway Glass Containers of Brockway, Inc., 1980 to 1981. Prior to joining Brockway, Inc., Mr. Stirrup held several positions at Kerr Glass Manufacturing Corp., including Vice President of Manufacturing. Mr. Stirrup is a citizen of the United States. The following sets forth the business and background information of each of Mary Lou Hayford and Jeffrey O'Connell. The current business address and telephone number of each such person is c/o BWAY Corporation, 8607 Roberts Drive, Suite 250, Atlanta, GA 30350, (770) 645-4800. Mary Lou Hayford is the wife of Warren Hayford, the Vice-Chairman of the BWAY board. Mrs. Hayford is a citizen of the United States. Jeffrey O'Connell has been Vice President and Treasurer of BWAY since May 1997 and has served as Secretary of BWAY since May 2001. From June 1996 to May 1997, Mr. O'Connell served as Assistant Treasurer of BWAY. From June 1995 to June 1996, Mr. O'Connell served as Vice President of Finance of Macmillan Bloedel Packaging Inc. From October 1994 to June 1995, Mr. O'Connell served as Director of Financial Planning of BWAY. Prior thereto, Mr. O'Connell served as Vice President of Administration of Mead Coated Board Division of The Mead Corporation. Mr. O'Connell is a citizen of the United States. The following sets forth the business and background of each executive officer and director of BCO Holding, BCO Acquisition and BWAY Finance. The current principal business address and telephone number of each such person listed is c/o Kelso & Company, L.P., 320 Park Avenue, 24th Floor, New York, NY 10022, (212) 751-3939. Thomas R. Wall, IV joined Kelso in 1983. His current title is Managing Director. Mr. Wall is a director of the following: (i) Citation Corporation (since 1999; a foundry products company), 2 Office Park Circle, Suite 204, Birmingham, AL 35223; (ii) Consolidated Vision Group, Inc. (since 1997; an eyeglass and contact lens business), c/o America's Best Contacts and Eyeglasses, 7255 Crescent Boulevard, Route 130, Pennsauken, NJ 08110; (iii) Key Components, Inc. (since 2000; a manufacturer of furniture, locks, electrical and mechanical components), c/o Millbrook Capital Management, 152 West 57th Street, 17th Floor, New York, NY 10019; (iv) Mitchell Supreme Fuel Company (since prior to 1997; a fuel, oil and gas supplier to residences and businesses), 532 Freeman Street, Orange, NJ 07050; (v) Mosler, Inc. (since prior to 1997; a security company), 8509 Berk Boulevard, Hamilton, OH 45015; (vi) Peebles, Inc. (since 1995; a department store), One Peebles Street, South Hill, VA 23970-5001; (vii) TransDigm Inc. (since 1993; a solution provider for aerospace component applications), 26380 Curtiss Wright Parkway, Richmond Hts., OH 44143; and (viii) 21st Century Newspapers, Inc. (since 1997; a newspaper and related publications group), 48 West Huron, Pontiac, MI 48342. Mr. Wall was a director of the following: (i) Charter Communications Entities (from prior to 1997 to 1998; a cable television company), 12444 Powerscourt Drive, Suite 400, St. Louis, MO 63131; (ii) Cygnus Publishing, Inc. (from 1997 to 2001; a trade publication company), 405 Central Avenue, Suite 300, St. Petersburg, FL 33701; (iii) Hillside Broadcasting of North Carolina Holding Corp. (from 1995 to 1998; a television station), Two Park Place, 1888 Emery Street, 2nd Floor, Atlanta, GA 30318; (iv) AMF Bowling, Inc. (from prior to 1997 to July, 2002; an owner/operator of bowling centers and manufacturer/marketer of bowling products), 8100 AMF Drive, Richmond, VA 23111; and (v) iXL Enterprises, Inc. (from 1995 to 2001; an internet professional services provider), 1888 Emery Street, NW, Atlanta, GA 30318. He is also a trustee of Choate Rosemary Hall. Mr. Wall is a citizen of the United States. David I. Wahrhaftig joined Kelso in 1987 and has served as a Managing Director since 1998. Prior to becoming a Managing Director, his title was Vice President. Mr. Wahrhaftig is a director of the following: (i) Consolidated Vision Group, Inc. (since 1997; an eyeglass and contact lens business), c/o America's Best Contacts and Eyeglasses, 7255 Crescent Boulevard, Route 130, Pennsauken, NJ 08110; (ii) Endo Pharmaceuticals, Inc. (since 1997; a pharmaceutical company), 100 Painters Drive, Chadds Ford, PA 19317); and (iii) Unilab Corporation (since 1999; a medical testing laboratories company), 18448 Oxnard Street, Tarzana, CA 91356). Mr. Wahrhaftig was a director of Humphreys Inc. (from prior to 1997 to 2001; a men's belt manufacturer), 2009 West Hastings Street, Chicago, IL 60608-1123. Mr. Wahrhaftig is a citizen of the United States. James J. Connors II has been Vice President and General Counsel of Kelso since 1993. Mr. Connors was a director of Scient, Inc. (from June 2002 until October 2002; an internet professional services provider), 405 Lexington Avenue, 26/th/ Floor, New York, NY 10174. Mr. Connors is a citizen of the United States. Howard A. Matlin joined Kelso in 1997. His current title is Vice President and Chief Financial Officer. Mr. Matlin is a citizen of the United States. Stanley de J. Osborne joined Kelso in 1998. His current title is Associate. From 1996 to 1998, Mr. Osborne worked as an associate at Summit Partners, a global private equity and venture capital firm with offices at 222 Berkeley Street, 18/th/ Floor, Boston, Massachusetts 02116. Mr. Osborne is a citizen of the United States. The following sets forth the business and background of each managing member of Kelso GP VI, LLC and KEP VI. The current principal business address and telephone number of each such person listed is c/o Kelso & Company, L.P., 320 Park Avenue, 24th floor, New York, NY 10022, (212) 751-3939. Frank T. Nickell joined Kelso in 1977. His current title is President and Chief Executive Officer. Mr. Nickell is a director of the following: (i) The Bear Stearns Companies Inc. (since 1993; a financial services company), 383 Madison Avenue, New York, NY 10179; (ii) BlackRock, Inc. (since 1999; a financial and risk management company), 40 East 52nd Street, New York, NY 10022; (iii) Earle M. Jorgensen Company (since 1993; a specialty metal distributor), 3050 E. Birch Street, Brea, CA 92821; and (iv) Peebles, Inc. (since 1995; a department store), One Peebles Street, South Hill, VA 23970-5001. Mr. Nickell was a director of Charter Communications Entities (from prior to 1997 to 1998; a cable television company), 12444 Powerscourt Drive, Suite 400, St. Louis, MO 63131. He is also a member of The Board of Visitors of the University of North Carolina and a trustee of the NYU Hospitals Center. Mr. Nickell is a citizen of the United States. Thomas R. Wall, IV: see description under directors and executive officers of BCO Holding and BCO Acquisition, above. George E. Matelich joined Kelso in 1985. His current title is Managing Director. Mr. Matelich is a director of FairPoint Communications, Inc. (since 1997; a world telephone company), 521 East Morehead Street, Suite 250, Charlotte, NC 28202. Mr. Matelich was a director of the following: (i) Charter Communications Entities (from prior to 1997 to 1998; a cable television company), 12444 Powerscourt Drive, Suite 400, St. Louis, MO 63131 and (ii) Humphreys Inc. (from prior to 1997 to 2001; a men's belt manufacturer), 2009 West Hastings Street, Chicago, IL 60608-1123. He is also a trustee of the University of Puget Sound. Mr. Matelich is a citizen of the United States. Michael B. Goldberg has been a Managing Director of Kelso since 1991. Mr. Goldberg is a director of the following: (i) ArmKel, LLC (since 2001; a marketer and manufacturer of branded personal care consumer products), c/o Church & Dwight Co., Inc., 469 North Harrison Street, Princeton, NJ, 08543-5297; (ii) Consolidated Vision Group, Inc. (since 1997; a eyeglass and contact lens business), c/o America's Best Contacts and Eyeglasses, 7255 Crescent Boulevard, Route 130, Pennsauken, NJ 08110; (iii) Endo Pharmaceuticals, Inc. (since 1997; a pharmaceutical company), 100 Painters Drive, Chadds Ford, PA 19317; (iv) Hilite Holdings, LLC (since 1999; an automotive parts supplier), c/o Carreras, Kestner & Co., Terminal Tower, 50 Public Square, 32nd Floor, Cleveland, OH 44113; (v) HCI Direct, Inc. (since 1994; a direct manufacturer of hosiery), 3369 Progress Drive, Bensalem, PA 19020; and (vi) Unilab Corporation (since 1999; a medical testing laboratory company), 18448 Oxnard Street, Tarzana, CA 91356. He also serves as a member of the Phoenix House Foundation Board of Directors and The Wilson Council of the Woodrow Wilson International Center for Scholars. Mr. Goldberg is a citizen of the United States. David I. Wahrhaftig: see description under directors and executive officers of BCO Holding and BCO Acquisition, above. Frank K. Bynum, Jr. joined Kelso in 1987 and has served as Managing Director since 1998. Prior to becoming a Managing Director, his title was Vice President. Mr. Bynum is a director of the following: (i) Plant America, Inc. (since September 24, 2002; a developer of web sites for the "green industry"), 4350 North Fairfax Drive, Ste. 33, Arlington, VA 22203; (ii) CDT Acquisition Corp. (since 1999; a developer and manufacturer of display screens), Greenwich House, Madingley Rise, Madingley Road, Cambridge, England CB3-OHJ, UK; (iii) Citation Corporation (since 1999; a foundry products company), 2 Office Park Circle, Suite 204, Birmingham, AL 35223; (iv) eMarkets, Inc. (since 1999; software and online tools for agrifoods industry), 1606 Golden Aspen Drive, Suite 108, Ames, IA 50010; (v) FairPoint Communications, Inc. (since 1997; a world telephone company), 521 East Morehead Street, Suite 250, Charlotte, NC 28202; and (vi) 21st Century Newspapers, Inc. (since 1997; a newspaper and related publications group), 48 West Huron, Pontiac, MI 48342. Mr. Bynum was a director of the following: (i) HCI Direct, Inc. (from 1994 to May 2002; a direct manufacturer of hosiery), 3369 Progress Drive, Bensalem, PA 19020; (ii) Scient, Inc. (formerly known as IXL Enterprises, Inc.) (from 1995 to 2002; an internet professional services provider), 405 Lexington Avenue, 26/th/ Floor, New York, NY 10174; (iii) Cygnus Publishing, Inc. (from 1997 to 2001; a trade publication company), 405 Central Avenue, Suite 300, St. Petersburg, FL 33701 and (iv) Hillside Broadcasting of North Carolina Holding Corp. (from 1995 to 1998; a television station), Two Park Place, 1888 Emery Street, 2nd Floor, Atlanta, GA 30318. He is also a trustee of Prep for Prep. Mr. Bynum is citizen of the United States. Philip E. Berney has been a Managing Director of Kelso since 1999. From 1993 to 1999, he was a Senior Managing Director and Head of the High Yield Capital Markets group at Bear, Stearns & Co. (a financial services company), 383 Madison Avenue, New York, NY 10179. Mr. Berney is a director of the following: (i) ArmKel, LLC (since 2001; a marketer and manufacturer of branded personal care consumer products), c/o Church & Dwight Co., Inc., 469 North Harrison Street, Princeton, NJ, 08543-5297; (ii) CDT Acquisition Corp. (since 1999; a developer and manufacturer of display screens), Greenwich House, Madingley Rise, Madingley Road, Cambridge, England CB3-OHJ, UK; and (iii) Key Components, LLC. (since 2000; a manufacturer of furniture, locks, electrical and mechanical components), c/o Millbrook Capital Management, 152 West 57th Street, 17th Floor, New York, NY 10019. Mr. Berney is a citizen of the United States. During the last five years, none of the persons or entities referred to in this Item 3 has been (i) convicted in a criminal proceeding (excluding traffic violations and similar misdemeanors) or (ii) a party to any judicial or administrative proceeding that resulted in a judgment, decree or final order enjoining the person from future violations of, or prohibiting activities subject to, federal or state securities laws, or a finding of any violation of federal or state securities laws. ITEM 4. Terms of the Transaction. Regulation M-A Item 1004 (a) Material Terms. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Summary Term Sheet Questions and Answers about the Merger Summary Special Factors The Merger Agreement The Special Meeting Annex A - Agreement and Plan of Merger, dated as of September 30, 2002. (c) Different Terms. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Summary Term Sheet Questions and Answers about the Merger Summary - Effects of the Merger Summary - Post-Merger Ownership and Control Summary - Interests of Certain Persons in the Merger Special Factors - Effects of the Merger Special Factors - Post-Merger Ownership and Control Special Factors - Purposes, Reasons and Plans for BWAY After the Merger Special Factors - Interests of Certain Persons in the Merger The Merger Agreement - Structure of the Merger The Merger Agreement - Effect of the Merger on the Capital Stock and Stock Options of BWAY and BCO Acquisition (d) Appraisal Rights. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Summary Term Sheet Questions and Answers about the Merger Summary - Rights of Dissenting Stockholders Special Factors - Reasons for the Merger; Recommendation of the Special Committee and the Board of Directors Special Factors - Position of Participating Affiliates as to Fairness of the Merger Special Factors - Rights of Dissenting Stockholders The Merger Agreement - Dissenters' Rights Annex C - Section 262 of the Delaware General Corporation Law (e) Provisions For Unaffiliated Security Holders. None. (f) Eligibility For Listing Or Trading. Not applicable. ITEM 5. Past Contacts, Transactions, Negotiations and Agreements. Regulation M-A Item 1005 (a) Transactions. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Special Factors - Background of the Merger Special Factors - Interests of Certain Persons in the Merger Transactions in Shares of Common Stock by Certain Persons (b) Significant Corporate Events. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Summary Term Sheet Summary Special Factors - Background of the Merger Special Factors - Certain Projected Financial Information Prepared by BWAY's Management Special Factors - Interests of Certain Persons in the Merger The Merger Agreement The Voting Agreements Transactions in Shares of Common Stock by Certain Persons (c) Negotiations Or Contacts. The information set forth in the Proxy Statement under the caption "Special Factors - Background of the Merger" is incorporated herein by reference. (e) Agreements Involving The Subject Company's Securities. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Summary Term Sheet Questions and Answers about the Merger Summary - Effects of the Merger Summary - Post-Merger Ownership and Control Summary - Interests of Certain Persons in the Merger Special Factors - Effects of the Merger Special Factors - Post-Merger Ownership and Control Special Factors - Purposes, Reasons and Plans for BWAY after the Merger Special Factors - Interests of Certain Persons in the Merger Special Factors - Financing of The Merger Special Factors - Repayment of Indebtedness Special Factors - Financial Advisory Agreement The Merger Agreement The Voting Agreements The Special Meeting Security Ownership of Certain Beneficial Owners and Management ITEM 6. Purposes of the Transaction and Plans or Proposals. Regulation M-A Item 1006 (b) Use Of Securities Acquired. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Summary Term Sheet Questions and Answers About the Merger Summary - Effects of the Merger Special Factors - Effects of the Merger Special Factors - Post-Merger Ownership and Control Special Factors - Purposes, Reasons and Plans for BWAY after the Merger Special Factors - Interests of Certain Persons in the Merger Special Factors - Rights of Dissenting Stockholders The Merger Agreement - Structure of the Merger The Merger Agreement - Effect of the Merger on the Capital Stock and Stock Options of BWAY and BCO Acquisition The Merger Agreement - Payment for BWAY Common Stock in the Merger The Merger Agreement - Dissenters' Rights (c)(1)-(c)(8) Plans. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Summary Term Sheet Questions and Answers about the Merger Summary Special Factors - Effects of the Merger Special Factors - Post-Merger Ownership and Control Special Factors - Purposes, Reasons and Plans for BWAY after the Merger Special Factors - Interests of Certain Persons in the Merger Special Factors - Financing of the Merger Special Factors - Repayment of Indebtedness Special Factors - Financial Advisory Agreement The Merger Agreement The Voting Agreements The Special Meeting Market Prices and Dividend Information ITEM 7. Purposes, Alternatives, Reasons and Effects. Regulation M-A Item 1013 (a) Purposes. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Summary Term Sheet Questions and Answers about the Merger Special Factors - Effects of the Merger Special Factors - Post-Merger Ownership and Control Special Factors - Background of the Merger Special Factors - Reasons for the Merger; Recommendation of the Special Committee and the Board of Directors Special Factors - Position of Participating Affiliates as to Fairness of the Merger Special Factors - Purposes, Reasons and Plans for BWAY after the Merger (b) Alternatives. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Special Factors - Background of the Merger Special Factors - Reasons for the Merger; Recommendation of the Special Committee and the Board of Directors Special Factors - Purposes, Reasons and Plans for BWAY after the Merger Special Factors - Conduct of the Business of BWAY if the Merger is not Completed (c) Reasons. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Special Factors - Effects of the Merger Special Factors - Post-Merger Ownership and Control Special Factors - Background of the Merger Special Factors - Reasons for the Merger; Recommendation of the Special Committee and the Board of Directors Special Factors - Position of Participating Affiliates as to the Fairness of the Merger Special Factors - Purposes, Reasons and Plans for BWAY after the Merger (d) Effects. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Summary Term Sheet Questions and Answers about the Merger Summary Special Factors The Merger Agreement - Effect of the Merger on the Capital Stock and Stock Options of BWAY and BCO Acquisition The Merger Agreement - Payment for BWAY Common Stock in the Merger The Merger Agreement - Dissenters' Rights The Special Meeting Market Prices and Dividend Information ITEM 8. Fairness of the Transaction. Regulation M-A Item 1014 (a) Fairness. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Summary - Recommendation of the Special Committee and the Board of Directors Summary - Opinion of the Special Committee's Financial Advisor Special Factors - Background of the Merger Special Factors - Reasons for the Merger; Recommendation of the Special Committee and the Board of Directors Special Factors - Opinion of the Special Committee's Financial Advisor Special Factors - Position of Participating Affiliates as to the Fairness of the Merger Special Factors - Purposes, Reasons and Plans for BWAY after the Merger The Special Meeting - Purpose, Time and Place The Special Meeting - Quorum, Required Vote (b) Factors Considered In Determining Fairness. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Summary - Recommendation of the Special Committee and the Board of Directors Summary - Opinion of the Special Committee's Financial Advisor Special Factors - Reasons for the Merger; Recommendation of the Special Committee and the Board of Directors Special Factors - Members of the Special Committee Special Factors - Opinion of the Special Committee's Financial Advisor Special Factors - Position of Participating Affiliates as to the Fairness of the Merger Special Factors - Purposes, Reasons and Plans for BWAY after the Merger Special Factors - Interests of Certain Persons in the Merger (c) Approval Of Security Holders. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Summary Term Sheet Summary - Vote Required The Special Meeting - Record Date; Voting Rights The Special Meeting - Quorum; Required Vote (d) Unaffiliated Representative. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Summary Term Sheet Questions and Answers about the Merger Summary - Recommendation of the Special Committee and the Board of Directors Summary - Opinion of the Special Committee's Financial Advisor Special Factors - Background of the Merger Special Factors - Reasons for the Merger; Recommendation of the Special Committee and the Board of Directors Special Factors - Members of the Special Committee Special Factors - Opinion of the Special Committee's Financial Advisor Special Factors - Position of Participating Affiliates as to the Fairness of the Merger Special Factors - Purposes, Reasons and Plans for BWAY after the Merger (e) Approval Of Directors. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Summary - Recommendation of the Special Committee and the Board of Directors Special Factors - Background of the Merger Special Factors - Reasons for the Merger; Recommendation of the Special Committee and the Board of Directors Special Factors - Members of the Special Committee Special Factors - Opinion of the Special Committee's Financial Advisor The Special Meeting - Purpose, Time and Place (f) Other Offers. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Special Factors - Background of the Merger Special Factors - Reasons for the Merger; Recommendation of the Special Committee and the Board of Directors ITEM 9. Reports, Opinions, Appraisals and Negotiations. Regulation M-A Item 1015 (a) Report, Opinion Or Appraisal. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Summary - Opinion of the Special Committee's Financial Advisor Special Factors - Background of the Merger Special Factors - Reasons for the Merger; Recommendation of the Special Committee and the Board of Directors Special Factors - Opinion of the Special Committee's Financial Advisor Annex B - Opinion of William Blair & Company, L.L.C. (b) Preparer And Summary Of The Report, Opinion Or Appraisal. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Summary - Opinion of the Special Committee's Financial Advisor Special Factors - Background of the Merger Special Factors - Reasons for the Merger; Recommendation of the Special Committee and the Board of Directors Special Factors - Opinion of the Special Committee's Financial Advisor Annex B - Opinion of William Blair & Company, L.L.C. (c) Availability Of Documents. The reports, opinions or appraisal referenced in this Item 9 will be made available for inspection and copying at the principal executive offices of BWAY during its regular business hours by any interested holder of BWAY common stock or any representative who has been designated in writing. ITEM 10. Source and Amount of Funds or Other Consideration. Regulation M-A Item 1007 (a)-(d) Source Of Funds; Conditions; Expenses; Borrowed Funds. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Summary Term Sheet Questions and Answers about the Merger Special Factors - Post-Merger Ownership and Control Special Factors - Interests of Certain Persons in the Merger Special Factors - Financing of the Merger Special Factors - Interests of Certain Persons in the Merger Special Factors - Financial Advisory Agreement Special Factors - Estimated Fees and Expenses The Merger Agreement - Financing Covenants ITEM 11. Interest in Securities of the Subject Company. Regulation M-A Item 1008 (a) Securities Ownership. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Special Factors - Post-Merger Ownership and Control Security Ownership of Certain Beneficial Owners and Management Transactions in Shares of Common Stock by Certain Persons (b) Securities Transactions. The information set forth in the Proxy Statement under the caption "Transactions in Shares of Common Stock By Certain Persons" is incorporated herein by reference. ITEM 12. The Solicitation or Recommendation. Regulation M-A Item 1012 (d) Intent To Tender Or Vote In A Going-Private Transaction. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Summary Term Sheet Questions and Answers about the Merger Summary - Interests of Certain Persons in the Merger Special Factors - Effects of the Merger Special Factors - Post-Merger Ownership and Control Special Factors - Interests of Certain Persons in the Merger The Merger Agreement - Effects of the Merger on the Capital Stock and Stock Options of BWAY and BCO Acquisition The Voting Agreements The Special Meeting - Record Date; Voting Rights The Special Meeting - Quorum; Required Vote (e) Recommendation Of Others. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Summary Term Sheet Questions and Answers about the Merger Summary - Recommendation of the Special Committee and the Board of Directors Special Factors - Reasons for the Merger; Recommendation of the Special Committee and the Board of Directors Special Factors - Position of Participating Affiliates as to the Fairness of the Merger Special Factors - Purposes, Reasons and Plans for BWAY after the Merger Special Factors - Interests of Certain Persons in the Merger The Voting Agreements The Special Meeting - Purpose, Time and Place ITEM 13. Financial Statements. Regulation M-A Item 1010 (a) Financial Information. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Summary - Selected Historical Consolidated Financial Data Additional Information - Where You Can Find More Information In addition, the information set forth in the Consolidated Financial Statements included in BWAY's Current Report on Form 8-K filed on November 8, 2002 is incorporated herein by reference. (b) Pro Forma Information. Not applicable. ITEM 14. Persons/Assets, Retained, Employed, Compensated or Used. Regulation M-A Item 1009 (a) Solicitations Or Recommendations. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Summary Term Sheet Questions and Answers about the Merger Summary - Reasons for the Merger; Recommendation of the Special Committee and the Board of Directors Summary - Opinion of the Special Committee's Financial Advisor Special Factors - Background of the Merger Special Factors - Reasons for the Merger; Recommendation of the Special Committee and the Board of Directors Special Factors - Opinion of the Special Committee's Financial Advisor Special Factors - Interests of Certain Persons in the Merger Special Factors - Potential Fraudulent Conveyance Challenge to the Merger Special Factors - Estimated Fees and Expenses The Merger Agreement - Conditions to the Merger The Special Meeting - Purpose, Time and Place The Special Meeting - Proxies; Solicitation Annex B - Opinion of William Blair & Company, L.L.C. (b) Employees And Corporate Assets. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference: Summary Term Sheet Summary - Interests of Certain Persons in the Merger Special Factors - Post-Merger Ownership and Control Special Factors - Background of the Merger Special Factors - Interests of Certain Persons in the Merger The Special Meeting - Proxies; Solicitation ITEM 15. Additional Information. Regulation M-A Item 1011 (b) Other Material Information. The entirety of the Proxy Statement, including all annexes thereto, is incorporated herein by reference. ITEM 16. EXHIBITS. Regulation M-A Item 1016 (a)(1) Letter to Stockholders. (1) (a)(2) Notice of Special Meeting of Stockholders. (1) (a)(3) Preliminary Proxy Statement. (1) (b)(1) Senior Secured Credit Facility Commitment Letter, dated September, 30 2002, by and among BCO Acquisition and Deutsche Bank Trust Company Americas. (b)(2) Bridge Loan Commitment Letter, dated September 30, 2002, by and among BCO Holding, BCO Acquisition and Deutsche Bank Trust Corporation. (c)(1) Opinion of William Blair & Company, L.L.C., dated as of September 30, 2002. (2) (d)(1) Exchange Agreement, dated September 30, 2002, by and among BCO Holding and Jean-Pierre Ergas. (3) (d)(2) Exchange Agreement, dated September 30, 2002, by and among BCO Holding and Warren Hayford. (3) (d)(3) Exchange Agreement, dated September 30, 2002, by and among BCO Holding and Mary Lou Hayford. (3) (d)(4) Exchange Agreement, dated September 30, 2002, by and among BCO Holding and Thomas Eagleson. (3) (d)(5) Exchange Agreement, dated September 30, 2002, by and among BCO Holding and Kevin Kern. (3) (d)(6) Exchange Agreement, dated September 30, 2002, by and among BCO Holding and Jeffrey O'Connell. (3) (d)(7) Exchange Agreement, dated September 30, 2002, by and among BCO Holding and Kenneth Roessler. (3) (d)(8) Voting Agreement, dated September 30, 2002, by and among BCO Holding and Jean-Pierre Ergas. (4) (d)(9) Voting Agreement, dated September 30, 2002, by and among BCO Holding and Warren Hayford. (4) (d)(10) Voting Agreement, dated September 30, 2002, by and among BCO Holding and Mary Lou Hayford. (4) (f) Section 262 of the Delaware General Corporation Law. (5) (g) None. ___________________ (1) Incorporated herein by reference to the Preliminary Proxy Statement on Schedule 14A filed on November 8, 2002. (2) Incorporated herein by reference to Annex B to the Preliminary Proxy Statement of Schedule 14A filed on November 8, 2002. (3) Incorporated herein by reference to the Schedule 13D filed by BCO Holding Company on October 10, 2002. (4) Incorporated herein by reference to the Form 8-K filed by BWAY Corporation on October 3, 2002. (5) Incorporated herein by reference to Annex C to the Preliminary Proxy Statement of Schedule 14A filed on November 8, 2002. SIGNATURES After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Date: November 8, 2002 BWAY CORPORATION /s/ Jean-Pierre Ergas ------------------------- Name: Jean-Pierre Ergas Title: Chairman and Chief Executive Officer BCO HOLDING COMPANY /s/ James J. Connors II ------------------------- Name: James J. Connors II Title: Vice President BCO ACQUISITION, INC. /s/ James J. Connors II ------------------------- Name: James J. Connors II Title: Vice President BWAY FINANCE CORP. /s/ James J. Connors II ------------------------- Name: James J. Connors II Title: Vice President KELSO INVESTMENT ASSOCIATES VI, L.P., BY: KELSO GP VI, LLC, ITS GENERAL PARTNER /s/ David I. Wahrhaftig ------------------------- Name: David I. Wahrhaftig Title: Managing Member KEP VI, LLC /s/ David I. Wahrhaftig ------------------------- Name: David I. Wahrhaftig Title: Managing Member JEAN-PIERRE ERGAS /s/ Jean-Pierre Ergas -------------------------- Name: Jean-Pierre Ergas WARREN HAYFORD /s/ Warren Hayford -------------------------- Name: Warren Hayford MARY LOU HAYFORD /s/ Mary Lou Hayford -------------------------- Name: Mary Lou Hayford KEVIN KERN /s/ Kevin Kern -------------------------- Name: Kevin Kern THOMAS EAGLESON /s/ Thomas Eagleson -------------------------- Name: Thomas Eagleson KENNETH ROESSLER /s/ Kenneth Roessler -------------------------- Name: Kenneth Roessler JEFFREY O'CONNELL /s/ Jeffrey O'Connell -------------------------- Name: Jeffrey O'Connell EX-99.(B)(1) 3 dex99b1.txt SENIOR SECURED CREDIT FACILITY COMMITMENT LETTER EXHIBIT (b)(1) CONFIDENTIAL September 30, 2002 BCO ACQUISITION, INC. c/o Kelso & Company 320 Park Avenue New York, New York 10022 Attention: Thomas R. Wall, IV David Wahrhaftig Stanley de J. Osborne Ladies and Gentlemen: BCO Acquisition, Inc. ("MergerCo") has advised Deutsche Bank Trust Company Americas ("DBTCo") that it intends (a) to acquire (the "Acquisition") a previously identified target corporation ("Jupiter") by effecting the merger (the "Merger") of MergerCo with and into Jupiter, and (b) concurrently with the Acquisition, to effect the repurchase of a majority of Jupiter's outstanding subordinated notes (the "Existing Note Repurchase"). MergerCo has further advised DBTCo that the aggregate cash proceeds paid in connection with the Acquisition and the Existing Note Repurchase will be approximately $331,000,000, and that the total financing requirements for the Acquisition and Existing Note Repurchase (including, without limitation, related transaction fees and expenses and the ongoing working capital requirements of Jupiter and its wholly-owned subsidiaries after the Acquisition) will be provided through: (i) a common equity investment of not less than $101,000,000 (including a rollover investment of existing common equity) in BCO Holding Company, of which MergerCo is a wholly-owned subsidiary (the cash proceeds of which will be contributed to MergerCo), provided, that, the cash portion of this $101,000,000 may be reduced (by an amount up to $10,000,000) by the amount of any reduction in (x) actual transaction expenses as opposed to projected transaction expenses and/or (y) actual total bank debt to be repaid at closing as opposed to the projected amount of such bank debt (the "Equity Investment"), (ii) $190,000,000, of newly issued unsecured senior or subordinated notes or other obligations or other junior securities or obligations (the "Notes"), and (iii) Jupiter's existing $90,000,000 senior secured revolving credit facility (the "Existing Revolving Credit Facility"), amended and restated to accommodate the Acquisition, Existing Note Repurchase, Equity Investment and issuance of the Notes (collectively, the "Related Transactions"), or, if requested by MergerCo, a new $90,000,000 senior secured revolving credit facility (the "New Revolving Credit Facility" and, together with the Existing Revolving Credit Facility, hereinafter referred to as the "Revolving Credit Facility") (with a total commitment under the Revolving Credit Facility of not less than $90,000,000, and no more than $40,000,000 to be funded thereunder at closing, after giving effect to the Related Transactions). DBTCo is pleased to commit, subject to the terms and conditions described herein, to provide the Revolving Credit Facility by causing the amendment and restatement of the Existing Revolving Credit Facility to accommodate the Related Transactions, or, in the alternative, at your election, by extending the New Revolving Credit Facility to Jupiter, in each case after giving effect to the Related Transactions. Proceeds of the Revolving Credit Facility shall be used: (a) if the New Revolving Credit Facility is extended, to repay the outstanding debt of Jupiter under the Existing Revolving Credit Facility; (b) to pay a portion of the purchase price for the Acquisition and Existing Note Repurchase, and (c) to provide financing for the ongoing working capital and general corporate purposes of Jupiter and its wholly-owned subsidiaries. DBTCo's commitment hereunder to provide the Revolving Credit Facility is delivered substantially on the basis set forth herein and in the Summary Term Sheet attached hereto as Exhibit A (the "Term Sheet"). DBTCo's commitment hereunder shall terminate automatically upon the earlier to occur of (a) the close of business on February 28, 2003, unless on or prior thereto, the Credit Agreement and all other Credit Documents (in each case as defined below) have been executed and delivered to all parties, or (b) receipt by DBTCo of a written notice from MergerCo requesting such termination (which notice shall be irrevocable). Our commitment is specifically subject to the negotiation of a definitive amended and restated credit agreement or credit agreement, as the case may be (the "Credit Agreement") and other definitive legal documentation with respect to the Revolving Credit Facility (collectively, including the Credit Agreement, herein referred to as the "Credit Documents") reflecting the applicable terms and conditions set forth herein and otherwise in form and substance reasonably satisfactory to DBTCo and its counsel. In consideration of DBTCo's commitment with respect to the Revolving Credit Facility, MergerCo agrees as follows: (a) (i) if our commitment hereunder is terminated by MergerCo, or otherwise terminates pursuant to the terms hereof, in each case for any reason, to reimburse DBTCo promptly upon demand following the date of such termination for all reasonable costs and expenses incurred by DBTCo, any of its affiliates or any of their respective successors and assigns, including, without limitation, Deutsche Bank AG and Deutsche Bank Securities Inc. (collectively, its "Affiliates"), in connection with any collateral audits and asset appraisals obtained by DBTCo in connection herewith, provided, that, notwithstanding the foregoing, to the extent (and only to the extent) that MergerCo has received a "bust-up" fee and/or expense reimbursement from Jupiter, MergerCo shall reimburse DBTCo promptly upon demand following the date of such termination for all reasonable costs, fees and expenses described in clause (a)(ii) herein below); and (ii) in the event the Closing Date occurs, to reimburse DBTCo promptly upon the Closing Date, for all reasonable costs and expenses incurred by DBTCo or any of its Affiliates in connection with the negotiation, preparation, review, execution, delivery, collection and enforcement of this commitment letter, the Credit Documents and any other documentation contemplated hereby or thereby, which shall include, without limitation, (x) the reasonable fees and expenses of attorneys and paralegals, (y) out-of-pocket expenses of personnel of DBTCo and its Affiliates, including the costs and expenses described in the foregoing clause (a)(i), and (z) all reasonable fees from outside sources, taxes (other than income taxes), assessments and duties; (the costs and expenses referred to in the foregoing paragraphs (i) and (ii) being herein referred to as the "Expenses"); (b) whether or not the Credit Documents are executed or the transactions contemplated herein and therein are consummated, to defend, indemnify and hold harmless DBTCo and its Affiliates, directors, officers, employees, persons controlling or controlled by or under common control with any of them and any attorneys and agents of any of the foregoing (collectively, the "Indemnified Persons") from and against any and all losses, claims, damages, costs and expenses (including, without limitation, reasonable out-of-pocket attorneys' and other legal fees, costs and expenses) ("Losses") to which any of the Indemnified Persons becomes subject, whether direct or indirect, that result or arise from or relate to any claim, litigation, or any other proceeding, whether threatened or initiated, arising from or in connection with or related to this commitment letter, the Revolving Credit Facility, any of the Credit Documents, the Related Transactions or any other matter contemplated hereby or thereby (including, without limitation, all reasonable costs involved in connection with any subpoena or other governmentally-sanctioned request for the production of documents or witnesses in any case or proceeding, whether involving an Indemnified Person as a party or otherwise); provided, however, that no Indemnified Person shall be indemnified for any losses, claims, damages, costs or expenses of any kind which a court in a final judgment no longer subject to appeal shall determine have arisen from the willful misconduct or gross negligence of any Indemnified Person; (c) to cooperate (and to use reasonable efforts to cause Jupiter to cooperate) in all reasonable respects with the Agent in its completion of the syndication of the Revolving Credit Facility, promptly providing such information and other assistance as shall be reasonably requested from time to time by the Agent in connection therewith; and (d) whether or not the Credit Documents are executed or the transactions contemplated herein and therein are consummated, that, prior to termination of DBTCo's commitment hereunder, MergerCo shall furnish DBTCo with such information about MergerCo and, to the extent available to MergerCo, Jupiter, as DBTCo reasonably requests from time to time, and that all of such and any other information, materials or analysis furnished to DBTCo, or developed by DBTCo, prior to or after the date hereof in connection with the Revolving Credit Facility and the Related Transactions, including information bearing on the creditworthiness of Jupiter and its affiliates (collectively, "Information"), may be shared by DBTCo with its Affiliates in connection with the Revolving Credit Facility, provided that none of such Information shall be used or disclosed by DBTCo or any of its Affiliates in any manner which would violate any confidentiality agreement referred to herein below in this paragraph or applicable law, including, without limitation, applicable securities laws. It is understood and agreed that this paragraph shall serve as a nondisclosure agreement within the meaning of Regulation FD, as adopted by the United States Securities and Exchange Commission. You also confirm that, subject to the foregoing, and to the compliance by DBTCo and its Affiliates with any confidentiality agreement entered into between MergerCo, on the one hand, and DBTCo or any of its Affiliates, on the other hand, and any confidentiality agreement between Jupiter, on the one hand, and Kelso & Company, on the other hand, in connection with the transactions contemplated hereby, you have no objection to discussions between DBTCo's personnel and the Affiliates' personnel concerning you, Jupiter, the Information, the Revolving Credit Facility, the Related Transactions or any other potential transaction between you and any of the Affiliates or Jupiter and any of the Affiliates, as the case may be. Subject to the fourth to last paragraph of this Commitment Letter, the obligations of MergerCo contained in the foregoing subparagraphs (a) and (b), respectively, shall remain in full force and effect whether or not definitive Credit Documents are executed and delivered and notwithstanding the termination of this commitment letter. The foregoing agreement shall be in addition to any rights that DBTCo or any other Indemnified Person may have at common law or otherwise, including, but not limited to, any right to contribution. If for any reason the foregoing indemnification is unavailable to any Indemnified Person or is insufficient to hold such Indemnified Person harmless as to the extent contemplated in the preceding paragraphs, then MergerCo shall contribute to the amount paid or payable to the Indemnified Person as a result of such Losses as is appropriate to reflect the relative benefits received by MergerCo on the one hand and the applicable Indemnified Person on the other, as well as any other relevant equitable considerations Notwithstanding the foregoing, MergerCo shall not be liable under any circumstance to contribute any amounts to any Indemnified Person under this commitment letter or otherwise, except to the extent and under such circumstances as MergerCo would have been obligated to indemnify such Indemnified Person pursuant to paragraph (b) above if such indemnification provisions were enforceable under applicable law. MergerCo hereby represents and warrants to DBTCo that, to its knowledge, (i) the Information (other than the Financial Statements and Projections (as each such term is defined herein below)) which has been or is hereafter furnished by or on behalf of MergerCo to DBTCo in connection with the transactions contemplated hereby, taken as a whole, will not, when furnished, contain any untrue statement of a material fact or omit to state a material fact known to you necessary in order to make the statements therein not misleading in light of the circumstances under which such statements are made; (ii) all financial statements of any person or entity (the "Financial Statements") that have been or will be made available to DBTCo by MergerCo fairly present the consolidated financial position, the consolidated results of operations, the changes in stockholder equity, the cash flow and the other information included therein, as the case may be, for such person or entity for the periods or as of the dates therein set forth, in each case in accordance with the generally acceptable accounting principles ("GAAP") consistently applied during the periods involved, except as otherwise noted therein and except that the unaudited financial statements are subject to normal year end adjustments and lack footnotes and other presentation items required for full disclosure under GAAP; and (iii) all financial projections concerning Jupiter that have been or are hereafter made available to DBTCo by MergerCo in connection with the transactions contemplated hereby (the "Projections") have been, or in the case of Projections made available after the date hereof, will be prepared in good faith based upon assumptions believed by you at the time of preparation to be reasonable; it being understood that the Projections are subject to significant uncertainties and contingencies (many of which are beyond MergerCo's control) and that no assurances can be given that such Projections will be realized. In addition, MergerCo agrees that, for so long as DBTCo shall have a commitment hereunder to provide the Revolving Credit Facility, MergerCo will advise DBTCo promptly of all developments materially affecting MergerCo or Jupiter of which MergerCo becomes aware. MergerCo further agrees that neither DBTCo, the Affiliates nor any of their respective directors, officers, employees, agents, attorneys or affiliates shall be liable in respect of the transactions contemplated by this commitment letter or the Credit Documents on any theory of liability for indirect or consequential damages. This commitment letter constitutes the entire agreement between DBTCo and MergerCo, and supersedes all other agreements between DBTCo and MergerCo, in each case with respect to the subject matter hereof. This commitment letter shall not be assignable by MergerCo without the prior written consent of DBTCo and may not be amended or any provision hereof waived or modified except by an instrument in writing signed by MergerCo and DBTCo. MergerCo's representations, warranties, covenants and obligations under this commitment letter, other than the provisions hereof relating to MergerCo's ongoing assistance in connection with the syndication of the Revolving Credit Facility and the provisions set forth in the immediately preceding paragraph, shall automatically terminate and be superseded by the provisions of the Credit Documents upon the initial funding thereunder, whereupon MergerCo shall automatically be released from all liabilities and obligations hereunder. DBTCo's commitment to provide the Revolving Credit Facility on the terms and conditions set forth in this commitment letter and the Term Sheet is specifically contingent upon the execution and delivery (by facsimile) back to DBTCo of this commitment letter and the accompanying letter agreements (collectively, the "fee letter"), in each case by 5:00 p.m. Chicago time on October 4, 2002. This commitment letter may be executed in counterparts which, when taken together, shall constitute an original. Any such counterpart which may be delivered by facsimile transmission shall be deemed the equivalent of an originally signed counterpart and shall be fully admissible in any enforcement proceedings regarding this commitment letter. Pursuant to New York General Obligations Law Section 5-1401, this commitment letter shall be governed by and construed in accordance with the internal laws and decisions of the State of New York. Please indicate your acceptance of and agreement to the foregoing by signing and returning the enclosed copy of this letter (together with the accompanying fee letter pertaining hereto) to Deutsche Bank Trust Company Americas, 233 South Wacker Drive, 84/th/ Floor, Chicago, Illinois 60606, Attention: Frank Fazio. Sincerely, DEUTSCHE BANK TRUST COMPANY AMERICAS By: /s/ Albert Fischetti ------------------------------ Name: Albert Fischetti Title: Director READ AND AGREED TO this 30th day of September, 2002 BCO ACQUISITION, INC. By: /s/ James J. Connors II ------------------------------ Name: James J. Connors II Title: Vice President EX-99.(B)(2) 4 dex99b2.txt BRIDGE LOAN COMMITMENT LETTER EXHIBIT (b)(2) DEUTSCHE BANK TRUST CORPORATION 31 WEST 52/ND/ STREET NEW YORK, NEW YORK 10019 September 30, 2002 BCO Holding Company BCO Acquisition Inc. c/o Kelso & Company 320 Park Avenue New York, NY 10022 Attention: Thomas R. Wall, IV David Wahrhaftig Stanley De J. Osborne Re: Jupiter Acquisition Financing Commitment Letter Ladies and Gentlemen: We understand that BCO Holding Company ("Holdco") and certain other equity investors reasonably satisfactory to us (collectively, the "Equity Investors") intend to acquire the outstanding capital stock (the "Acquisition") of a company known to both of us as Jupiter (the "Acquired Business") through the merger of a wholly owned subsidiary of Holdco ("Newco") with the Acquired Business. As used herein, "Newco" means BCO Acquisition, Inc. prior to the merger referred to in preceding sentence and thereafter the corporation surviving such merger. We further understand that the funding requirements for the Acquisition (including the refinancing of existing senior subordinated notes of the Acquired Business (the "Refinancing") and related fees and expenses) will be approximately $331 million and such amount, together with ongoing working capital needs, will be provided solely from (i) an existing asset based facility of the Acquired Business (the "Existing Bank Facility") of up to $90 million of which up to $40 million will be drawn on the closing date of the Acquisition (the "Closing Date"), (ii) not less than a $101 million equity investment in Holdco (including rollover equity), the cash proceeds of which shall be contributed as common equity to Newco (the "Equity Financing"); provided that the cash portion of this $101 million may be reduced (by an amount up to $10 million) by the amount of any reduction in (A) actual transaction expenses as opposed to projected transaction expenses and/or (B) actual bank debt to be repaid on the Closing Date as opposed to the pro- -2- jected amount of such bank debt, and (iii) the issuance and sale of Debt Securities (as defined below). The Acquisition, the Refinancing, the borrowing under the Existing Bank Facility or, in lieu thereof, borrowings under a new credit facility as set forth in Section 2(c) (in either case, the "Bank Financing"), the Equity Financing, the bridge loan contemplated by this letter and the issuance and sale of the Debt Securities are herein collectively referred to as the "Transaction". In connection with the Transaction, you have engaged Deutsche Bank Securities Inc. ("DBSI") to sell or place senior debt securities of Newco (the "Debt Securities"). You have requested that Deutsche Bank Trust Corporation (the "Lender") commit to provide to Newco funds in the amount of up to $190 million in the form of a senior bridge loan to be made available as described in Section 1 hereof (the "Bridge Loan"). Accordingly, subject to the terms and conditions set forth or incorporated in this letter, the Lender agrees with you as follows: Section 1. Bridge Loan. The Lender hereby commits, subject to the terms and conditions hereof and in the Summary Term Sheet attached hereto as Exhibit A (the "Term Sheet"), to provide to Newco a senior bridge loan on the Closing Date in the aggregate principal amount of up to $190 million. The proceeds of the Bridge Loan shall be used solely to finance the Acquisition and to pay fees and expenses incurred in connection therewith. The principal terms of the Bridge Loan are summarized in the Term Sheet. Unless the Lender's commitment hereunder shall have been terminated pursuant to Section 7, the Lender shall have the exclusive right to provide the Bridge Loan or other bridge or interim financing required in connection with the Transaction. You hereby represent and covenant that to your knowledge, (a) all information other than Projections and Financial Statements (as defined below) taken as a whole which has been or is hereafter made available to the Lender by you or your representatives in connection with the transactions contemplated hereby (the "Information") will not, when furnished, contain any untrue statement of a material fact or omit to state a material fact known to you and necessary to make the statements contained therein, in the light of the circumstances -3- under which such statements were or are made, not misleading and (b) all financial statements of the Acquired Business (the "Financial Statements") that have been or will be made available to DBSI by Newco fairly present the consolidated financial position, the consolidated results of operations, the changes in stockholder equity, the cash flow and the other information included therein, as the case may be, for the periods or as of the dates therein set forth, in each case in accordance with the generally acceptable accounting principles ("GAAP") consistently applied during the periods involved, except as otherwise noted therein and except that the unaudited financial statements are subject to normal year end adjustments and lack footnotes and other presentation items required for full disclosure under GAAP and (c) all financial projections concerning the Acquired Business that have been or are hereafter made available to the Lender by you or your representatives in connection with the transactions contemplated hereby (the "Projections") have been or, in the case of Projections made available after the date hereof, will be prepared in good faith based upon reasonable assumptions (it being understood that the Projections are subject to significant uncertainties and contingencies, many of which are beyond your control and that no assurance can be given that such Projections will be realized). You agree to supplement the Information and the Projections from time to time, to the extent there is material new information of which you become aware, until the termination of the Lender's commitment hereunder so that the representation and warranty made in the preceding sentence is correct as of such date. In arranging and syndicating the Bridge Loan, the Lender will be using and relying on the Information and the Projections. The Lender shall have the right to designate all or a portion of the Bridge Loan to be a senior subordinated obligation. The representations and covenants contained in this paragraph shall remain effective until a definitive financing agreement is executed or this letter otherwise terminates and thereafter the representations and covenants contained herein shall be terminated and of no further force and effect. Section 2. Financing Documentation. The making of the Bridge Loan will be governed by definitive loan and related agreements and documentation (collectively, the "Financing Documentation") in form and substance reasonably satisfactory to the Lender and to you. The Financing Documentation shall be prepared by Cahill Gordon & Reindel, special counsel to the Lender. The Financing Documentation shall contain such covenants, terms and conditions as are consistent with this letter and the Term Sheet and such other covenants, terms, conditions, representations, warranties, events of default and remedies -4- provisions as shall be reasonably satisfactory to the Lender and you. Section 3. Conditions. The obligation of the Lender under Section 1 of this letter to provide the Bridge Loan is subject to fulfillment of the following conditions: (a) Acquisition Agreement. Newco and the Acquired Business shall have entered into an agreement relating to the Acquisition (the "Acquisition Agreement") on terms and in form and substance reasonably satisfactory to the Lender. The Acquisition Agreement shall not have been amended in any material respect without the Lender's consent, which consent shall not be unreasonably withheld. All conditions precedent to the Acquisition contained in the Acquisition Agreement shall have been performed or complied with in all material respects substantially on the terms set forth therein and not waived without the Lender's consent, which consent shall not be unreasonably withheld and simultaneously with the making of any Bridge Loan, the Acquisition shall have been consummated. (b) Financing Documentation. Newco and the Lender shall have entered into the Financing Documentation relating to the Bridge Loan and the transactions contemplated thereby consistent with this letter and the Term Sheet and otherwise in form and substance reasonably satisfactory to the Lender and Newco. (c) Bank Financing. The Lender shall be reasonably satisfied with the terms and conditions of the Existing Bank Facility, as amended to permit the Transactions. In lieu of satisfying this condition as to the Existing Bank Facility, Newco shall have the option to enter into a new credit facility (the "New Credit Facility") with a commercial lender or lenders or a syndicate of commercial lenders providing for borrowings of up to $90 million on terms and conditions reasonably satisfactory to the Lender (in either case, collectively with all documents and instruments related thereto or delivered in connection therewith, the "Bank Documents"). The Bank Documents shall be in full force and effect and the parties thereto shall be in compliance in all material respects with all material agreements thereunder. The Lender acknowledges the terms of the New Credit Facility set forth in the Commitment Letter dated the date hereof from Deutsche Bank Trust Company Americas are acceptable to the Lender. -5- (d) Existing Senior Subordinated Notes. A majority of the outstanding senior subordinated notes (the "Existing Notes") of the Acquired Business shall have been repurchased, retired, redeemed or otherwise acquired by the Acquired Business or Newco and canceled pursuant to the terms of the governing indenture and such governing indenture shall have been amended to permit the Transaction on terms reasonably satisfactory to the Lender. On the Closing Date, Newco shall have called for redemption the Existing Notes then outstanding. (e) Equity Financing. On or prior to the Closing Date, Holdco shall have received an equity investment of not less than $101 million, which shall be provided by the Equity Investors (including rollover equity) and the cash proceeds thereof shall have been contributed as common equity to Newco; provided that the cash portion of this $101 million may be reduced (by an amount up to $10 million) by the amount of any reduction in (i) actual transaction expenses as opposed to projected transaction expenses and/or (ii) actual bank debt to be repaid at closing as opposed to the projected amount of such bank debt. The terms and conditions of the Equity Financing shall be reasonably satisfactory to the Lender. (f) No Adverse Change or Development, Etc. (i) Nothing shall have occurred since September 30, 2001 (and the Lender shall have become aware of no facts or conditions not previously known to the Lender) which has had or would reasonably be expected to have a material adverse effect on the rights or remedies of the Lender, or on the ability of Newco to perform its obligations to the Lender or which has had or would reasonably be expected to have a materially adverse effect on the business, property, assets, liabilities, financial condition or results of operations or prospects of Newco after giving effect to the Transaction; (ii) a banking moratorium shall not have been declared by New York or United States authorities; and (iii) after the date of this letter, there shall not have been any material change in the financial markets of the United States which in the reasonable judgment of the Lender would materially and adversely affect the ability to sell or place the Debt Securities. (g) Capital Structure. The pro forma consolidated capital structure of Newco, after giving effect to the Transaction, shall be consistent with the capital structure contemplated herein, and other than the Bridge Loan, -6- the Bank Financing and other indebtedness reasonably satisfactory to the Lender, Newco and its subsidiaries, after giving effect to, and upon consummation of, the Transaction, shall have no outstanding indebtedness for money borrowed. (h) Opinions. As of the Closing Date, the Lender shall have received a legal and other opinions (including with respect to solvency) from persons, and covering matters, reasonably acceptable to the Lender. (i) Due Diligence. DBSI shall have completed and be reasonably satisfied with its continuing environmental due diligence; it being understood and agreed that DBSI has substantially completed all of its environmental due diligence investigation of Jupiter, that DBSI is satisfied with the results of all of its environmental due diligence to date and that DBSI believes it can complete its remaining environmental due diligence, including site assessments by its environmental consultants, in approximately two to three weeks; provided that, if DBSI does not notify you within three weeks from the date of this letter that this condition has not been satisfied, it will be deemed satisfied. (j) Pro Forma Financial Tests. On a pro forma basis after giving effect to the Transaction, (a) Newco and its subsidiaries shall have a ratio of (i) pro forma total indebtedness outstanding on the Closing Date to (ii) pro forma EBITDA (in each case, as defined in a manner reasonably satisfactory to the Lender and you) for the twelve-month period of the Acquired Business ending on the most recent fiscal quarter prior to the Closing Date for which financial statements are available (the "Applicable Period") not to exceed 4.25 to 1 and (b) pro forma EBITDA for the Applicable Period of not less than $54.0 million. All pro forma adjustments shall be reasonably satisfactory to the Lender and you. (k) Minimum Ratings Condition. The Bridge Loan or other unsecured senior long-term debt obligations of Newco (that do not have any credit support by any party other than Newco and its subsidiaries) have received a rating of better than CCC+ by Standard & Poor's and a rating of better than Caa1 by Moody's. (l) Take-Out Bank. You shall have engaged DBSI (the "Take-Out Bank") to publicly offer or privately place the -7- Debt Securities, the proceeds of which will be used either to fund the Acquisition or to prepay in whole or in part the Bridge Loan. Newco shall have prepared an offering memorandum relating to the issuance of the Debt Securities (which offering memorandum shall contain audited, unaudited and pro forma financial statements meeting the requirements of Regulation S-X under the Securities Act of 1933, as amended, of the Acquired Business for the periods required of a registrant on Form S-1) on or before December 31, 2002 and the Take-Out Bank shall have been afforded the opportunity to market (regardless of the status of the market) such Debt Securities pursuant to such offering memorandum for at least a 45-day period; provided, however, that such marketing period shall expire on February 27, 2003 if Newco has delivered such offering memorandum on or before December 31, 2002 and Newco shall otherwise have complied with the provisions of this clause (l). Newco shall have used reasonable commercial efforts to assist the Take-Out Bank in marketing the Debt Securities, including, without limitation, using reasonable commercial efforts to prepare the offering memorandum relating thereto, using reasonable commercial efforts to make senior management of the Acquired Business and other representatives of you and the Acquired Business available (at mutually agreeable times) to participate in meetings with prospective investors and using reasonable commercial efforts to provide such information and assistance as the Take-Out Bank shall have reasonably requested during the course of such marketing process. Section 4. Fee Letter. You agree to comply with the provisions set forth in the fee letter from the Lender to you dated the date hereof (the "Fee Letter"). Section 5. Indemnification and Contribution. You agree to indemnify the Lender and each of its affiliates and each person in control of the Lender and each of its affiliates and the respective officers, directors, employees, agents and representatives of the Lender and its affiliates and control persons, as and to the extent provided in the Indemnity Letter dated the date hereof (the "Indemnity Letter") and attached hereto. Section 6. Expenses. In addition to any fees that may be payable to the Lender hereunder if the Bridge Loan is funded or, if the Transactions are not consummated and we have not breached our obligations hereunder, to the extent Newco receives a "bust-up" fee and/or expense reimbursement sufficient -8- to pay all costs, expenses, fees and disbursements in connection with the transactions contemplated hereby, including any such costs, expenses, fees and disbursements payable pursuant hereto, from the Acquired Business or other third party source, you hereby agree to reimburse the Lender for all reasonable fees and disbursements of legal counsel, including but not limited to the reasonable fees and disbursements of Cahill Gordon & Reindel, the Lender's special counsel, and all of the Lender's reasonable travel and other reasonable out-of-pocket expenses incurred in connection with the Transaction or otherwise arising out of the Lender's commitment hereunder. Section 7. Termination. The Lender's commitment hereunder to provide the Bridge Loan shall terminate, unless expressly agreed to by the Lender in its sole discretion to be extended to another date, on the earlier of (A) February 28, 2003 if no portion of the Bridge Loan has been funded and (B) the termination of the Acquisition Agreement in accordance with the terms thereof. No such termination of such commitment shall affect your obligations under Sections 5 and 6 hereof or this Section 7, which shall survive any such termination. All other provisions of this letter shall terminate upon any such termination of such commitment. Newco's representations, warranties, covenants and obligations under this letter shall automatically terminate and be superseded by the provisions of the definitive Financing Documentation upon the earliest initial funding under such documentation, whereupon Newco shall automatically be released from all liabilities and obligations under this letter. Section 8. Assignment; Syndication. This letter shall not be assignable by any party hereto without the prior written consent of the other parties (other than, in the case of the Lender, to an affiliate of the Lender, it being understood that any such affiliate shall be subject to the restrictions set forth in this letter including without limitation this Section 8); provided, however, that the Lender shall have the right, in its sole discretion, to syndicate the Bridge Loan and its commitment with respect thereto among banks or other financial institutions pursuant to the Financing Documentation or otherwise and to sell, transfer or assign all or any portion of, or interests or participations in, the Bridge Loan and its commitment with respect thereto and any notes issued in connection therewith. You agree to use your reasonable commercial efforts, whether prior to or after the funding date of any Bridge Loan, to assist the Lender in syndicating the Bridge Loan or its commitment with respect thereto, including, without limitation, in connection with (x) the preparation of an infor- -9- mation package regarding the Transaction, including the Information and the Projections described in Section 1 hereof, and (y) meetings and other communications with prospective Lenders, including using reasonable efforts to make senior management of the Acquired Business and other representatives of you and the Acquired Business available (at mutually agreeable times) to participate in such meetings. Section 9. Miscellaneous. THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES GOVERNING CONFLICTS OF LAWS, AND ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, ACTION, SUIT OR PROCEEDING ARISING OUT OF OR CONTEMPLATED BY THIS COMMITMENT LETTER IS HEREBY WAIVED. EACH OF THE LENDER AND YOU HEREBY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF THE FEDERAL AND NEW YORK STATE COURTS LOCATED IN THE CITY OF NEW YORK IN CONNECTION WITH ANY DISPUTE RELATED TO THIS COMMITMENT LETTER OR ANY MATTERS CONTEMPLATED HEREBY. This letter may be executed in any number of counterparts, each of which shall be an original, but all of which shall constitute one instrument. The Lender reserves the right to employ the services of its affiliates (including DBSI) in providing services contemplated by this letter and to allocate, in whole or in part, to its affiliates certain fees payable to the Lender in such manner as the Lender and its affiliates may agree in their sole discretion. You acknowledge that, in connection with this engagement, the Lender may share with any of its affiliates (including DBSI) and such affiliates may share with the Lender (in each case, subject to any confidentiality agreements of DBSI, the Lender, Newco or any of their respective affiliates applicable thereto), any information related to you or your affiliates, the Acquired Business (including information relating to creditworthiness) or the Transaction. This letter and the Term Sheet (collectively, the "Commitment Letter") are furnished for your benefit, and may not be relied upon by any other person or entity. You agree that this Commitment Letter is for your confidential use only and that, except as required by law, neither its existence nor the terms hereof will be disclosed by you to any person other than your officers, directors, employees, accountants, attorneys and other advisors, and then only on a "need to know" basis in connection with the transactions contemplated hereby and on a confidential basis. Notwithstanding the foregoing, following your acceptance of the provisions hereof and your return of an executed counterpart of this Commitment Letter to us as -10- provided below, (i) you shall be permitted to furnish a copy hereof to the Acquired Business and its advisors in connection with the proposed Acquisition, (ii) you may make public disclosure of the existence and amount of the commitments hereunder and of the identity of the Lender, (iii) you may file a copy of this Commitment Letter in any public record in which it is required by law to be filed and (iv) you may make such other public disclosure of the terms and conditions hereof as, and to the extent, you are required by law, in the opinion of your counsel, to make. Except as otherwise required by law or unless the Lender has otherwise consented, you are not authorized prior to your acceptance of this letter as provided below to show or circulate this letter to any other person or entity (other than (x) your legal and financial advisors in connection with your evaluation hereof and (y) to the Acquired Business and its advisors in connection with the proposed Acquisition). -11- If you are in agreement with the foregoing, please sign and return to the Lender at 31 West 52/nd/ Street, New York, New York 10019 the enclosed copy of this letter no later than 6:00 p.m., New York time, on October 4, 2002, whereupon the undertakings of the parties shall become effective to the extent and in the manner provided hereby. This offer shall terminate if not so accepted by you on or prior to that time. Very truly yours, DEUTSCHE BANK TRUST CORPORATION By: /s/ Ryan Zanin ----------------------------------- Name: Ryan Zanin Title: Managing Director Accepted and Agreed to as of the date first above written: BCO HOLDING COMPANY By: /s/ James J. Connors II ---------------------------- Name: James J. Connors II Title: Vice President BCO ACQUISITION INC. By: /s/ James J. Connors II ---------------------------- Name: James J. Connors II Title: Vice President -----END PRIVACY-ENHANCED MESSAGE-----