SEALED AIR CORP/DE Item 1A Risk Factors Introduction Investors should carefully consider the risks described below before making an investment decision |
These are the most significant factors that make investing in the Company risky; however, they are not the only factors that should be considered in making an investment decision |
This Annual Report on Form 10-K also contains and may incorporate by reference from the Companyapstas Proxy Statement for its 2006 Annual Meeting of Stockholders, or from exhibits, forward-looking statements that involve risks and uncertainties |
The Companyapstas actual results could differ materially from those anticipated in these forward-looking statements as a result of many factors, including the risks faced by the Company described below and elsewhere in this Annual Report on Form 10-K or in documents incorporated by reference in this report |
The Companyapstas business, financial condition or results of operations could be materially adversely affected by any of these risks |
The trading price of the Companyapstas securities could decline due to any of these risks, and investors in the Companyapstas securities may lose all or part of their investment |
Asbestos Litigation and Related Litigation If the settlement of the asbestos claims that the Company has agreed to is not implemented, the Company will not be released from the various asbestos-related, fraudulent transfer, successor liability, and indemnification claims made against it arising from a 1998 transaction with W R Grace & Co |
Further, the Company has been served with a complaint in a lawsuit seeking class action status concerning the Companyapstas public disclosures regarding these asbestos-related claims |
The Company is also a defendant in a number of asbestos-related actions in Canada arising from Graceapstas activities in Canada prior to 1998 |
On November 27, 2002, the Company reached an agreement in principle with the Official Committee of Asbestos Personal Injury Claimants and the Official Committee of Asbestos Property Damage Claimants appointed to represent asbestos claimants in the W R Grace & Co |
bankruptcy case to resolve all current and future asbestos-related claims made against the Company and its affiliates |
The settlement will also resolve the fraudulent transfer claims and successor liability claims, as well as indemnification claims by Fresenius Medical Care Holdings, Inc |
and affiliated companies in connection with the Cryovac transaction |
The Cryovac transaction was a multi-step transaction, completed on March 31, 1998, which brought the Cryovac packaging business and the former Sealed Air Corporationapstas business under the common ownership of the Company |
The parties to the agreement in principle signed a definitive settlement agreement as of November 10, 2003 consistent with the terms of the agreement in principle |
On June 27, 2005, the US Bankruptcy Court for the District of Delaware, where the Grace bankruptcy case is pending, signed an order approving the definitive settlement agreement |
Although Grace is not a party to the settlement agreement, under the terms of the order, Grace is directed to comply with the settlement agreement subject to limited exceptions |
If the settlement agreement does not become effective, either because Grace fails to emerge from bankruptcy or because Grace does not emerge from bankruptcy with a plan of reorganization that is consistent with the terms of the settlement agreement, then the Company will not be released from the various asbestos-related, fraudulent transfer, successor liability, and indemnification claims made against the Company and its affiliates noted above, and all of these claims would remain pending and would have to be resolved through other means, such as through agreement on alternative settlement terms or trials |
In that case, the Company could face liabilities that are 8 _________________________________________________________________ significantly different from its obligations under the settlement agreement |
The Company cannot estimate at this time what those differences or their magnitude may be |
In the event these liabilities are materially larger than the current existing obligations, they could have a material adverse effect on the Companyapstas financial condition and results of operations |
Although Grace filed a proposed plan of reorganization with the bankruptcy Court in January 2005, the Company cannot predict when a final plan of reorganization will become effective or whether the final plan will be consistent with the terms of the settlement agreement |
The Company is a defendant in the case of Senn v |
This lawsuit seeks class action status on behalf of all persons who purchased or otherwise acquired securities of the Company during the period from March 27, 2000 through July 30, 2002 |
The lawsuit names the Company and five current and former officers and directors of the Company as defendants |
One of these individuals and the Company remain as defendants after a partial grant of the defendants &apos motion to dismiss the action |
The plaintiffapstas principal allegations against the defendants are that during the above period the defendants materially misled the investing public, artificially inflated the price of the Companyapstas common stock by publicly issuing false and misleading statements and violated US Generally Accepted Accounting Principles, or GAAP, by failing to properly account and accrue for the Companyapstas contingent liability for asbestos claims arising from past operations of Grace |
The plaintiffs seek compensatory damages and other relief |
If the Court determines that the Company is liable in this case, the Company could be required to pay substantial damages, which the Company cannot estimate at this time and which could have a material adverse effect on the Companyapstas financial condition and results of operations |
Since November 2004, the Company and specified subsidiaries have been named as defendants in a number of cases, including a number of putative class actions, brought in Canada as a result of Graceapstas alleged marketing, manufacturing or distributing of asbestos or asbestos-containing products in Canada |
Grace has agreed to defend and indemnify the Company and its subsidiaries in these cases |
The Canadian cases are currently stayed, and Graceapstas proposed plan of reorganization provides for payment of these claims and enforcement of the plan of reorganization in the Canadian courts |
However, if Graceapstas final plan does not make the same provisions or if the Canadian courts refuse to enforce Graceapstas final plan in the Canadian courts, and if in addition Grace is unwilling or unable to defend and indemnify the Company and its subsidiaries in these cases, then the Company could be required to pay substantial damages, which the Company cannot estimate at this time and which could have a material adverse effect on the Companyapstas financial condition and results of operations |
For further information concerning these matters, see Note 16, "e Commitments and Contingencies, "e of the Notes to the Consolidated Financial Statements, which is contained in Item 8 of Part II of this Annual Report on Form 10-K, under "e Asbestos Settlement and Related Costs, "e "e Cryovac Transaction, "e and "e Contingencies Related to the Cryovac Transaction "e |
Raw Materials and Energy Raw material pricing, availability and allocation by suppliers as well as other energy-related costs may negatively impact the Companyapstas results of operations, including its profit margins |
During 2005, petrochemical-based raw material and other energy-related costs escalated as a result of strong market demand, exacerbated by the hurricanes in the Gulf Coast of the United States |
This negatively impacted the Companyapstas profit margins |
Natural disasters such as hurricanes, as well as political instability and terrorist activities, may negatively impact the production or delivery capabilities of refineries and natural gas and petrochemical suppliers in the future |
That could lead to increased prices for the Companyapstas raw materials, curtailment of supplies and allocation of raw materials by the Companyapstas suppliers, which could reduce revenues and profit margins and harm relations with its customers, and which could have a material adverse effect on the Companyapstas financial condition and results of operations |
9 _________________________________________________________________ Animal and Food-Related Health Issues The effects of animal and food-related health issues such as bovine spongiform encephalopathy, also known as "e mad cow "e disease, foot-and-mouth disease and avian influenza or "e bird-flu, "e as well as other health issues affecting the food industry, may lead to decreased revenues for the Company |
The Company manufactures and sells food packaging products, among other products |
Various health issues affecting the food industry have in the past and may in the future have a negative effect on the sales of food packaging products |
Outbreaks of animal diseases such as mad cow or foot-and-mouth disease, for example, may lead governments to restrict exports and imports of potentially affected animals and food products, leading to decreased demand for the Companyapstas products and possibly also to the culling or slaughter of significant numbers of the animal population otherwise intended for food supply |
Also, consumers may change their eating habits as a result of perceived problems with certain types of food |
These restrictions and changes may lead to reduced sales of food packaging products by the Company, which could have a material adverse effect on the Companyapstas financial condition and results of operations |
Global Operations The global nature of the Companyapstas operations in the United States and in fifty foreign countries exposes it to numerous risks that could materially adversely affect its financial condition and results of operations |
The Company operates in the United States and in 50 other countries, and its products are distributed in those countries as well as in other parts of the world |
The Company continues to expand its global presence as net sales outside the United States in 2005 made up approximately 52prca of the Companyapstas total net sales |
Additionally the Company has 75 manufacturing facilities and approximately 9cmam500 employees located outside the United States |
As a result of its global operations, the Company is exposed to economic, political, business and market conditions in the geographic areas in which it conducts business |
Changes in domestic or foreign laws, rules or regulations, or governmental or agency actions, can negatively affect the Companyapstas ability to carry on its business |
Governments may impose restrictive or protective import/export requirements as well as other trade measures that may have a negative impact on the Company |
Some of the countries in which the Companyapstas subsidiaries operate have significantly different laws on the enforcement of intellectual property and contract rights |
As a global entity, the Company may also have greater exposure to the acts and effects of war or terrorism |
The Company is exposed to market risk from fluctuations in foreign currency exchange rates |
The Company may use financial instruments from time to time to manage exposure to foreign exchange rate fluctuations, which use exposes the Company to counterparty credit risk for nonperformance |
Additionally, some of the Companyapstas subsidiaries may operate in countries that have highly inflationary economies |
Global Manufacturing Strategy The Company will begin the first phase of a new global manufacturing strategy |
While too soon to reasonably estimate, the costs of the global manufacturing strategy could exceed the benefits if market forces or other outside influences negatively impact the execution and fulfillment of the strategy |
The Company has announced that it will begin the first phase of a new global manufacturing strategy |
This strategy would include an expansion of the Companyapstas global production capabilities in developing markets around the world, as well as a realignment of its existing production into manufacturing centers of excellence |
The goal of this multi-year program is to further improve the Companyapstas operating efficiencies, lower its overall cost structure and implement new technologies more 10 _________________________________________________________________ effectively |
There are risks inherent in the undertaking of such a program, including the stability and sustainability of developing markets, shifts in customer preferences, competitive forces and technologies, cost overruns and unanticipated consequences, any of which could have a material adverse effect on the Companyapstas financial condition and results of operations |
Reliance on Subsidiaries The Companyapstas subsidiaries hold substantially all of its assets and liabilities and conduct substantially all of its operations, and as a result the Company relies on distributions or advances from its subsidiaries |
The Company conducts substantially all of its business through two direct wholly-owned subsidiaries, Cryovac, Inc |
These two subsidiaries directly and indirectly own substantially all of the assets of the Companyapstas business and conduct operations themselves and through other subsidiaries around the globe |
Therefore, the Company depends on distributions or advances from its subsidiaries to meet its debt service and other obligations and to pay dividends with respect to shares of its common stock |
Contractual provisions, laws or regulations to which the Company or any of its subsidiaries may become subject, as well its subsidiaries &apos financial condition and operating requirements, may reduce funds available for service of its indebtedness, dividends, and general corporate purposes |
Volatility of Stock Price, Volume Sales and Large Holdings The price of the Companyapstas common stock historically has experienced significant price and volume fluctuations, which may make it difficult for investors to resell the common stock, and the sale of substantial amounts of the Companyapstas common stock could adversely affect the price of the common stock |
One shareholder has been identified as having sole voting and dispositive power with respect to 29cmam196cmam437 shares, or approximately 35dtta87prca, of the Companyapstas common stock, and another shareholder has been identified as having sole dispositive power with respect to 8cmam902cmam500 shares, or approximately 10dtta9prca, of the Companyapstas common stock |
The market price of the Companyapstas common stock historically has experienced and may continue to experience significant price and volume fluctuations similar to those experienced by the broader stock market in recent years |
In addition, the Companyapstas announcements of its quarterly operating results, future developments relating to the W R Grace bankruptcy, additional asbestos or other litigation against the Company, the effects of animal and food-related health issues, spikes in raw material and energy-related costs, changes in general conditions in the economy or the financial markets and other developments affecting the Company, its affiliates or its competitors could cause the market price of the common stock to fluctuate substantially |
In addition, the sale of substantial amounts of the Companyapstas common stock could adversely affect its price |
According to a Schedule 13G/A filed with the Securities and Exchange Commission, or SEC, dated as of December 31, 2005, Davis Selected Advisers, LP reported sole voting and investment power with respect to 29cmam196cmam437 shares, or approximately 35dtta87prca, of the outstanding shares of the Companyapstas common stock, and according to a Schedule 13G/A filed with the SEC, dated as of February 6, 2006, Capital Research and Management Company reported sole dispositive power with respect to 8cmam902cmam500 shares, or approximately 10dtta9prca, of the Companyapstas outstanding common stock |
In addition, as of December 31, 2005, 2cmam403cmam903 shares of common stock were reserved for issuance under the Companyapstas contingent stock plan and directors &apos stock plan, and options to purchase 89cmam761 shares of the common stock were outstanding, all of which options were exercisable |
Moreover, as of December 31, 2005, nine million shares of the Companyapstas common stock were reserved for issuance pursuant to the settlement of the asbestos litigation upon the effectiveness of a plan of reorganization in the bankruptcy of W R Grace |
The sale 11 _________________________________________________________________ or the availability for sale of a large number of shares of the Companyapstas common stock in the public market could adversely affect the price of the common stock |
While the Schedules 13G/A filed by Davis Selected Advisers and Capital Research and Management indicate that the referenced shares of the Companyapstas common stock were not acquired for the purpose of changing or influencing the control of the Company, if either stockholder were to change its purpose of holding the Companyapstas common stock from investment to attempting to influence the management of the Company, these concentrations of the Companyapstas common stock could potentially negatively impact the Company and the price of its common stock |
Cautionary Statement Regarding Forward-Looking Statements Some of the Companyapstas statements in this report, in documents incorporated by reference into this report and in the Companyapstas future oral and written statements, may be forward-looking |
These statements reflect the Companyapstas beliefs and expectations as to future events and trends affecting the Companyapstas business, its financial condition and its results of operations |
These forward-looking statements are based upon the Companyapstas current expectations concerning future events and discuss, among other things, anticipated future performance and future business plans |
Forward-looking statements are identified by such words and phrases as "e anticipates, "e "e believes, "e "e could be, "e "e estimates, "e "e expects, "e "e intends, "e "e plans to, "e "e will "e and similar expressions |
Forward-looking statements are necessarily subject to risks and uncertainties, many of which are outside the control of the Company, which could cause actual results to differ materially from these statements |
In addition to the most significant risk factors described above, the following are important factors that the Company believes could cause actual results to differ materially from those in the Companyapstas forward-looking statements: • legal and environmental proceedings, claims and matters involving the Company; • factors affecting the customers, industries and markets that use the Companyapstas packaging materials and systems; • competitive factors; • changes in the Companyapstas relationships with customers and suppliers; • changes in tax rates, laws and regulations; • changes in interest rates, credit availability and ratings; • the Companyapstas ability to hire, develop and retain talented employees worldwide; • the Companyapstas development and commercialization of successful new products; • the Companyapstas accomplishments in entering new markets and acquiring and integrating new businesses; • the Companyapstas access to financing and other sources of capital; • the costs and success of the Companyapstas key information systems projects; • disruptions to data or voice networks; • the magnitude and timing of the Companyapstas capital expenditures and the ultimate value generated from those expenditures; • the costs and results of any exit and disposal activities and restructuring programs that the Company may undertake; • the Companyapstas working capital management proficiency; 12 _________________________________________________________________ • the effect on the Company of new pronouncements by regulatory and accounting authorities; • natural disasters, health crises, epidemics and pandemics; and • the effects of proposed federal asbestos legislation, if enacted |
Except as required by the federal securities laws, the Company undertakes no obligation to publicly update or revise any forward-looking statement, whether as a result of new information, future events or otherwise |