EXHIBIT 4.18
DATED 27 SEPTEMBER 2004
RMC GROUP p.l.c.
and
CEMEX UK LIMITED
_______________________________________
IMPLEMENTATION AGREEMENT
_______________________________________
Xxxxxxxxx and May
Xxx Xxxxxxx Xxx
Xxxxxx XX0X 0XX
(RRO)
CONTENTS
PAGE
1. Interpretation 1
2. Press Announcement 5
3. Implementation and Documentation 5
4. Conduct of Business 8
5. Representations, Warranties and Covenants 10
6. Inducement Fee 11
7. Termination 11
8. Notices 12
9. Remedies and Waivers 13
10. Invalidity 13
11. No Partnership 13
12. Time of Essence 14
13. Contracts (Rights of Third Parties) Xxx 0000 14
14. Entire Agreement 14
15. Assignment 14
16. Announcements 14
17. Costs and Expenses 15
18. Counterparts 15
19. Choice of Governing Law 15
20. Jurisdiction 15
SCHEDULE 1 17
SCHEDULE 2 18
This Agreement is made 27 September, 2004
BETWEEN:
(1) RMC GROUP p.l.c. (incorporated in England and Wales No. 249776) of
Xxxxx Xxxxx, Xxxxxxxxxxx Xxxx, Xxxxxx, Xxxxx, Xxxxxx XX00 0XX (the
"Company"); and
(2) CEMEX UK LIMITED (incorporated in England and Wales with registered
no. 05196131) of 0 Xxxxx Xxxxxxx, Xxxxxx XX0X 0XX (the "Offeror").
WHEREAS
(A) The Offeror is a subsidiary of Omega and intends to announce a
takeover offer for the Company to be implemented by way of, and the
Company has agreed to implement, a scheme of arrangement of the
Company, on the terms and subject to the conditions set out in the
Press Announcement.
(B) The parties wish to enter into this Agreement to set out certain
mutual commitments to implement the scheme of arrangement described in
paragraph (A) above and certain matters relating to the conduct of
business of the Company and its Group.
WHEREBY IT IS AGREED as follows:
1. Interpretation
1.1 In this Agreement (but not in Schedule 1), the following terms have
the following meanings:
"Clearances" means all consents, clearances, permissions and
waivers as may be necessary, and all filings and
waiting periods as may be necessary, from or
under the laws, regulations or practices applied
by any relevant Competition Authority in
connection with the implementation of the
Acquisition, the Scheme or the Offer and
references to Clearances having been satisfied
shall be construed as meaning that the foregoing
have been obtained on terms satisfactory to the
Offeror or, where appropriate, made or expired;
"Competition means any relevant government, governmental,
Authority" national, supranational, competition or antitrust
body or other authority, in any jurisdiction,
which is responsible for applying merger control
or other competition or antitrust legislation or
regulation in such jurisdictions;
"Conditions" means the conditions set out in Appendix I to the
Press Announcement;
"Confidentiality means the Confidentiality Agreement relating to
Agreement" the Acquisition dated 23 September 2004 between
the parties hereto;
"Court Hearing" the hearing by the Court of the petition to
sanction the Scheme under Section 425 of the
Companies Act and to confirm the reduction of
capital provided for by the Scheme under Section
137 of the Companies Act;
"Directors" means the board of directors of the Company from
time to time; "Effective Date" means the date
upon which:
(A) the Scheme becomes effective in accordance
with its terms; or
(B) if the Offeror elects to implement the
Acquisition by way of the Offer, the Offer
becomes or is declared unconditional in all
respects;
"EGM Resolutions" means the resolutions to be proposed at the
Extraordinary General Meeting in connection with
the Scheme to approve certain amendments to the
Articles of Association of the Company for the
purposes of approving and implementing the
Scheme, the reduction of capital and such other
matters as may be agreed between the Company and
the Offeror as necessary or desirable for the
purposes of implementing the Scheme;
"Exchange Act" means the Securities Exchange Act of 1934, as
amended;
"Group" means, in relation to any person, its
subsidiaries, subsidiary undertakings and holding
companies and the subsidiaries and subsidiary
undertakings of any such holding company;
"Inducement Fee" means (pound)23,870,000 plus a sum equal to any
amount of VAT for which the Offeror is liable to
account on any supply made pursuant to this
Agreement, provided that in no event shall the
inducement fee payable by the Company pursuant to
clause 6 less the part of such amount as is paid
in respect of VAT and is recoverable by the
Company or another member of the VAT group of
which the Company is a member exceed
(pound)23,870,000;
"Offer Document" means the document to be despatched to (amongst
others) Bromo Shareholders pursuant to which the
Offer would be made;
"Offer Price" means 855 xxxxx per Bromo Share;
"Personnel" means, in relation to any person, its board of
directors, members of their immediate families,
related trusts and persons connected with them,
as such expressions are construed in accordance
with the Code;
"Press Announcement" means the draft Press Announcement set out in
Schedule 1;
"Registrar" means the Registrar of Companies for England and
Wales;
"Scheme Document" means the document to be despatched to (amongst
others) Bromo Shareholders setting out the full
terms of the Scheme and, where the context so
admits, includes any form of proxy, election,
notice, application, affidavit, court document or
other document required in connection with the
Scheme;
"Third Party means an offer or proposal (as amended or revised
Transaction" from time to time):
(A) made by a third party, which is not acting in
concert with the Offeror, or the announcement of
an intention to make an offer, (whether or not
subject to any pre-conditions and howsoever
implemented) for the entire issued share capital
of the Company or any class thereof (other than
those shares owned or contracted to be acquired
by the person making such offer and its
associates, within the meaning of section 430(E)
of the Companies Act), pursuant to Rule 2.5 of
the Code; or
(B) by the Company or to holders of the shares of
the Company which involves, in any such case, a
change of control of the Company (other than the
acquisition of control by the Offeror and/or a
person acting in concert with the Offeror) or
which involves the disposal of any interest in a
material part of the business of the Company or
its Group (other than to the Offeror and/or a
person acting in concert with the Offeror);
"Timetable" means the indicative timetable for implementation
of the Scheme and despatch of the Scheme Document
set out in Schedule 2; and
"Working Hours" means 9.30 a.m. to 6.30 p.m. on a Business Day.
1.2 Terms used but not defined expressly herein shall, unless the context
otherwise requires, have the meaning given to them in the Press
Announcement.
1.3 In this Agreement, unless otherwise specified:
(A) references to clauses, sub-clauses and Schedules are to clauses
and sub-clauses of, and Schedules to, this Agreement;
(B) use of any gender includes each other gender;
(C) any word or expression defined in the Companies Act and not
defined in this Agreement shall have the meaning given in the
Companies Act;
(D) when used in this Agreement, the expressions "acting in
concert", "concert parties", "control" and "offer" shall be
construed in accordance with the Code;
(E) references to a "company" shall be construed so as to include
any company, corporation or other body corporate, wherever and
however incorporated or established;
(F) references to a "person" shall be construed so as to include any
individual, firm, company, government, state or agency of a
state, local or municipal authority or government body or any
joint venture, association or partnership (whether or not having
separate legal personality);
(G) a reference to any statute or statutory provision shall be
construed as a reference to the same as it may have been, or may
from time to time be, amended, modified or re-enacted;
(H) any reference to a "day" (including within the phrase "Business
Day") shall mean a period of 24 hours running from midnight to
midnight;
(I) references to times are to London time;
(J) a reference to any other document referred to in this Agreement
is a reference to that other document as amended, revised,
varied, novated or supplemented at any time;
(K) references to the singular include the plural and vice versa;
and
(L) (i) the rule known as the ejusdem generis rule shall not apply
and accordingly general words introduced by the word
"other" shall not be given a restrictive meaning by reason
of the fact that they are preceded by words indicating a
particular class of acts, matters or things; and
(ii) general words shall not be given a restrictive meaning by
reason of the fact that they are followed by particular
examples intended to be embraced by the general words.
1.4 All headings and titles are inserted for convenience only. They are to
be ignored in the interpretation of this agreement.
2. Press Announcement
2.1 The parties shall procure the release of the Press Announcement at or
before 7.00 a.m. on 27 September, 2004 or such other time and date as
may be agreed by the parties.
3. Implementation and Documentation
3.1 The parties undertake to implement the Scheme in accordance with, and
subject to the terms and conditions of, the Press Announcement and, so
far as possible, the Timetable with the overall intention that all
Clearances are satisfied prior to the Court Hearing. Accordingly,
without prejudice to the preceding sentence, each party agrees to use
all reasonable endeavours to, and to procure that its Group and its
directors and its relevant professional advisers assist it to, prepare
all such documents and take all such steps as are necessary or
desirable:
(A) in connection with the Acquisition, the Scheme and the Offer;
and
(B) for the purposes of obtaining all Clearances.
3.2 The Company shall not seek to amend the Scheme or the EGM Resolutions
after despatch of the Scheme Document without the prior written
consent of the Offeror.
3.3 The Offeror will undertake to the Court to be bound by the terms of
the Scheme insofar as it relates to the Offeror, including as to
discharge of the consideration for the Acquisition.
3.4 The Company will, save as otherwise agreed with the Offeror, take or
cause to be taken all such steps as are necessary to implement the
Scheme in accordance with the Timetable and, in particular, but
without limitation:
(A) the Company will, no later than sixteen days after the date of
this Agreement, issue a Part 8 claim form in order to seek the
Court's permission to convene the Court Meeting and file such
documents as may be necessary in connection therewith;
(B) upon:
(i) the necessary documents being settled with the Court and,
where required, approved by the Offeror under clause 3.8;
and
(ii) the Court making the order necessary for the purpose of
convening the Court Meeting,
the Company shall promptly, and in any event within fourteen
days, publish the requisite documents, including the Scheme
Document, and thereafter in a timely manner, publish and/or post
such other documents and information as the Court or the UK
Listing Authority may approve or require from time to time in
connection with the proper implementation of the Scheme
according to the Timetable;
(C) the Company will convene the Extraordinary General Meeting to be
held immediately following the Court Meeting to consider and, if
thought fit, approve the EGM Resolutions;
(D) following the Court Meeting and the Extraordinary General
Meeting, and assuming the resolutions to be proposed at such
meeting have been passed by the requisite majorities, the
Company shall, as contemplated by Schedule 2 but in consultation
with the Offeror and always with the overall intention that all
Clearances are satisfied prior to the Court Hearing, seek the
sanction of the Court to the Scheme at the Court Hearing and
take all other action necessary to make the Scheme effective;
(E) if the Court so requires or indicates, or if it is necessary to
implement the Scheme, the Company shall reconvene the Court
Meeting and any other necessary shareholder meeting;
(F) as soon as practicable after the sanction of the Court of the
Scheme (including the capital reduction) at the Court Hearing,
and in any event within one Business Day, the Company shall
cause an office copy of the relevant Court Order to be filed
with the Registrar and registered by him;
(G) the Company will not allot or issue any Bromo Shares between
6.00 p.m. on the Business Day before the Court Hearing and the
time at which the Scheme becomes effective; and
(H) the Company will use all reasonable endeavours to ensure that
the steps to be taken between the posting of the Scheme Document
and the Effective Date are undertaken in accordance with a
process agreed with the Offeror and always with the overall
intention that all Clearances are satisfied prior to the Court
Hearing.
3.5 The Company agrees that the Scheme Document shall incorporate a
unanimous and unqualified recommendation of the Directors to Bromo
Shareholders to vote in favour of the Scheme and the EGM Resolutions
except to the extent that the Directors have determined in good faith
with the benefit of legal and financial advice that such
recommendation should not be given or should be withdrawn, modified or
qualified in order to comply with their fiduciary duties.
3.6 The Offeror may elect at any time to implement the Acquisition by way
of the Offer, whether or not the Scheme Document has been despatched.
Provided that the Offer is made in accordance with the terms and
conditions set out in the Press Announcement (and with the
consideration being equal to or greater than that specified in the
Press Announcement), the Company agrees that the Offer Document shall
incorporate a unanimous and unqualified recommendation of the
Directors to the Bromo Shareholders to accept the Offer, except to the
extent that the Directors have determined in good faith with the
benefit of legal and financial advice that such recommendation should
not be given or should be withdrawn, modified or qualified in order to
comply with their fiduciary duties.
3.7 The obligations of the parties to implement the Scheme, or if
applicable the Offer, are subject to satisfaction or, where
permissible, waiver of the Conditions. The Company agrees that it
shall only file the relevant Court Order with the Registrar if all of
the Conditions are satisfied or, where permissible, waived by the
Offeror prior to the grant of the relevant Court Order. The Offeror
shall not be under any obligation to waive or treat as satisfied any
of the conditions in paragraph (b), (c), (e) or (f) of Appendix I to
the Press Announcement until the Clearances are satisfied.
3.8 The Company agrees to co-ordinate the preparation and despatch of the
Scheme Document with the Offeror and only to despatch the Scheme
Document with the consent of the Offeror (which shall not be
unreasonably withheld). Accordingly the Company will submit drafts and
revised drafts of the Scheme Document to the Offeror for review and
comment and shall discuss such comments with the Offeror for the
purposes of preparing revised drafts. The Offeror undertakes to
provide to the Company for the purposes of inclusion in the Scheme
Document all such information about the Offeror, its Group and their
respective Personnel as may reasonably be required by the Company
(having regard to the Code and applicable regulations) for inclusion
in the Scheme Document (including all information that would be
required under the Code or applicable regulations) and to provide all
such other assistance as the Company may reasonably require in
connection with the preparation of the Scheme Document including
access to and ensuring the assistance of its management and that of
Omega and relevant professional advisers.
3.9 The Offeror agrees to co-ordinate the preparation and despatch of the
Offer Document with the Company unless any of the Directors have
determined that the recommendation contemplated by sub-clause 3.6
shall not be given or should be withdrawn, modified or qualified in
order to comply with their fiduciary duties. Subject thereto, the
Offeror will submit drafts and revised drafts of the Offer Document to
the Company for review and comment and shall discuss such comments
with the Company for the purposes of preparing revised drafts.
3.10 (A) The Offeror will procure that its directors, and those of Omega,
accept responsibility for all of the information in the Scheme
Document relating to the Offeror, its Group and its Personnel.
(B) The Company will procure that the Directors accept
responsibility for all of the information in the Scheme Document
other than that relating to the Offeror, its Group and their
respective Personnel.
3.11 If the Offeror elects to exercise the right described in Part A of
Appendix I to the Press Announcement to implement the Acquisition by
way of the Offer:
(A) the Offeror will procure that its directors, and those of Omega,
accept responsibility for all of the information in the Offer
Document other than that relating to the Company, its Group and
their respective Personnel; and
(B) the Company will procure that the Directors accept
responsibility for the information in the Offer Document
relating to the Company, its Group and its Personnel.
3.12 The Company undertakes to provide the Offeror with all such
information about the Company, its Group and its Personnel as may
reasonably be required for inclusion in the Offer Document and to
provide all such other assistance as the Offeror may reasonably
require in connection with the preparation of the Offer Document,
including access to, and ensuring the provision of assistance by, its
management and relevant professional advisers.
3.13 The Company undertakes to co-operate with and assist the Offeror by
providing the Offeror and any relevant Competition Authority as
promptly as is reasonably practicable upon request and in good faith
any necessary information and documents for the purpose of making any
submissions, filings and notifications to such Competition Authority
in relation to the Acquisition, including making any joint filings
with the Offeror where required by any such Competition Authority.
3.14 Each party undertakes:
(A) to keep the other informed reasonably promptly of developments
which are material or potentially material to the obtaining of
the Clearances within 81 days of the posting of the Scheme
Document; and
(B) to disclose to each other material correspondence with any
relevant Competition Authority (subject to redaction of
confidential information).
3.15 The parties will consult with the Panel from time to time as necessary
in order to keep the Panel informed, and where appropriate seek the
consent of the Panel, as to the Timetable and the process to obtaining
the Clearances.
4. Conduct of Business
4.1 The Company undertakes, without prejudice to Rule 21 of the Code, that
prior to the earlier of the Effective Date and termination of this
Agreement in accordance with its terms, it will not, and it will
procure that no member of its Group shall:
(A) carry on business other than in the ordinary course (and the
parties agree that the entering into of any agreement or
arrangement (whether or not legally binding but excluding, for
the avoidance of doubt, the submission of a second-round
non-binding bid) to acquire the US business as notified by the
Company to the Offeror on 24 September 2004, without the prior
agreement of the Offeror, is not in the ordinary course of
business) and in all material respects consistent with past
practice; or
(B) alter the nature or scope of its business in any way which is
material in the context of either the business of the Company
and its Group taken as a whole or the implementation of the
Acquisition; or
(C) enter into, amend, supplement or terminate any agreement which
is material in the context of either the business of the Company
and its Group taken as a whole or the implementation of the
Acquisition; or
(D) subject to the fiduciary duties of its board of directors, take
any action which would be reasonably likely materially to delay
or prejudice, or increase the cost of, the Acquisition, the
Scheme or the Offer; or
(E) agree to do any of the foregoing.
4.2 Subject to the fiduciary duties of its Directors, the Company
undertakes that, except with the prior written consent of the Offeror,
it will not submit to its shareholders for approval in general meeting
any resolution which, if passed, would constitute approval for the
purposes of Rule 21.1 of the Code or seek the consent of the Panel to
proceed without such approval.
4.3 The Company undertakes that it will, and shall procure that its Group
does, co-operate with the Offeror in dealing with any party to an
agreement or arrangement with the Company or any member of its Group
which is affected by the Acquisition or would be affected by its
implementation and shall support the reasonable requests of the
Offeror as to how such effect shall be managed.
4.4 The Company shall not, and shall procure that its Group and their
respective management and professional advisers do not, directly or
indirectly solicit an offer or approach from any third party:
(A) to acquire all or a substantial part of the share capital of the
Company or a substantial part or value of the respective assets
of the Company or any member of its Group; or
(B) with a view to undertaking a transaction which is an alternative
to the Acquisition.
4.5 If any third party makes any unsolicited offer or approach:
(A) to acquire all or a substantial part of the share capital of the
Company or a substantial part or value of the respective assets
of the Company or any member of its Group; or
(B) with a view to undertaking a transaction which is an alternative
to the Acquisition,
the Company shall not (subject to its obligations under Rule 20.2 of
the City Code and subject to compliance by the Directors with their
fiduciary duties and (without prejudice to the foregoing) the
Directors shall be deemed to be acting in accordance with their
fiduciary duties if they in good faith believe that the third party is
a bona fide potential offeror) directly or indirectly, engage with
that third party or enter into any discussions or negotiations with
that third party in relation to such unsolicited offer or approach.
4.6 The Company will promptly inform the Offeror if any third party makes
any such unsolicited offer or approach and, subject to any
confidentiality obligations to which the Company may be subject and
subject to compliance by the Directors with their fiduciary duties,
the Company shall keep the Offeror informed of any communications it
receives from such third party in connection with any such unsolicited
offer or approach.
5. Representations, Warranties and Covenants
5.1 Each of the parties represents and warrants to the other on the date
hereof that:
(A) it has the requisite power and authority to enter into and
perform this Agreement;
(B) this Agreement constitutes its binding obligations in accordance
with its terms;
(C) the execution and delivery of, and performance of its
obligations under, this Agreement will not:
(i) result in a breach of any provision of its constitutional
documents;
(ii) result in a breach of, or constitute a default under, any
instrument to which it is a party or by which it is bound;
or
(iii) result in a breach of any order, judgement or decree of
any court or governmental agency to which it is a party or
by which it is bound.
5.2 The Company confirms and undertakes that, so far as its executive
directors are actually aware:
(A) it is a "foreign private issuer" as such term is defined under
Rule 3b-4(c) under the Exchange Act;
(B) the Company undertakes to furnish to the Offeror upon request of
the Offeror in writing a copy of the Company's register of
shareholders dated as of (i) a date on or around the 30th
calendar day prior to commencement (within the meaning of Rule
14d-2 ("Rule 14d-2") under the US Securities Exchange Act of
1934 (the "Exchange Act")) of a tender offer (within the meaning
of the Exchange Act) by the Offeror for the entire share capital
of the Company or (ii) such other date as may be agreed by the
Company and the Offeror for the purpose of assisting the Offeror
in making its calculation in accordance with instruction 2 to
Rules 14d-2(c) and (d).
6. Inducement Fee
6.1 If the Press Announcement is issued and thereafter:
(A) the Directors do not unanimously and without qualification
recommend the Acquisition or they (or any committee of the
Directors) at any time do withdraw or adversely modify or
qualify their recommendation of the Acquisition; or
(B) a Third Party Transaction is announced prior to the Acquisition
lapsing or being withdrawn which Third Party Transaction
subsequently becomes or is declared wholly unconditional or is
completed,
(in each case such an event being a "Relevant Event"), the Company
shall, in consideration of the Offeror procuring the release of the
Press Announcement, pay the Offeror the Inducement Fee in accordance
with sub-clause 6.2.
6.2 The Company shall pay the Inducement Fee no later than 5 Business Days
after demand from the Offeror which may only be made after the
occurrence of a Relevant Event. All sums payable under this clause 6
shall be paid in the form of an electronic funds transfer for same day
value to such bank as may be notified to the Company by the Offeror
and shall be paid in full free from any deduction or withholding
whatsoever (save only as may be required by law) and without regard to
any lien, right of set-off, counter-claim or otherwise.
7. Termination
7.1 This Agreement shall be terminated and all rights and obligations of
the parties shall cease, save under clauses 6 and 8-20, as follows:
(A) by notice in writing from the Offeror to the Company following a
material breach of any of the obligations of the Company set out
in clause 4;
(B) by notice in writing from the Offeror to the Company if a Third
Party Transaction becomes or is declared wholly unconditional or
is completed;
(C) if the Scheme is not sanctioned by Bromo Shareholders at the
Court Meeting or the EGM Resolutions are not approved at the
Extraordinary General Meeting;
(D) if the Court Orders are not granted or (save as the parties may
otherwise agree in writing) the Effective Date has not occurred
on or before the date which is six months after the date hereof;
(E) if the Offeror elects to implement the Acquisition by way of the
Offer, if the Offer, once announced under Rule 2.5 of the Code,
lapses in accordance with its terms or is withdrawn or not made;
or
(F) if the European Commission initiates proceedings under Article
6(1)(c) of the Regulation or, following a referral by the
European Commission under Article 9(1) of the Regulation to a
competent authority in the United Kingdom, there is a subsequent
reference to the Competition Commission; or
(G) by notice in writing from one party to the other, if the
recommendation of the Directors contemplated by sub-clauses 3.5
and 3.6, as the case may be, is not given or is withdrawn,
modified or qualified at any time prior to the grant of the
Court Orders.
7.2 Termination shall be without prejudice to the rights of either party
that may have arisen prior to termination. Clauses 6 and 8 - 20 shall
survive termination.
8. Notices
8.1 A notice under this Agreement shall only be effective if it is in
writing. Any notice must be given either by fax or be delivered by
hand or by same day courier.
8.2 Notices under this Agreement shall be sent to a party at its address
or number and for the attention of the individual set out below:
Party and title of individual Address Facsimile no.
----------------------------- ------- -------------
The Company Bromo House 01932 568933
FAO: Group Legal Adviser Xxxxxxxxxxx Xxxx
Xxxxxx
Xxxxx
Xxxxxx XX00 0XX
The Offeror 2 Lambs Passage 020 7240 5072
FAO: General Counsel Xxxxxx XX0X 0XX
(Ref: RRO)
with a copy to:
Av. Xxxxxxx Xxxxxxx Xxxxxx + 52 81 8888 4399
# 000, Xxxxxxx
Xxxxx xxx Xxxxxxxxx
Xxxxx Xxxxxx
Xxxxx Xxxx
Xxxxxx 00000
provided that a party may change its notice details on giving notice
to the other party of the change in accordance with this clause.
8.3 Any notice given under this Agreement shall, in the absence of earlier
receipt, be deemed to have been duly given as follows:
(A) if delivered personally, on delivery;
(B) if sent by facsimile, when sent (with receipt confirmed); and
(C) if sent by courier, on delivery.
8.4 Any notice given under this Agreement outside Working Hours in the
place to which it is addressed shall be deemed not to have been given
until the start of the next period of Working Hours in such place.
9. Remedies and Waivers
9.1 No delay or omission by any party to this Agreement in exercising any
right, power or remedy provided by law or under this Agreement shall:
(A) affect that right, power or remedy; or
(B) operate as a waiver of it.
9.2 The single or partial exercise of any right, power or remedy provided
by law or under this Agreement shall not preclude any other or further
exercise of it or the exercise of any other right, power or remedy.
9.3 The rights, powers and remedies provided in this Agreement are
cumulative and not exclusive of any rights, powers and remedies
provided by law.
9.4 Without prejudice to any other rights and remedies which any party may
have, each party acknowledges and agrees that damages would not be an
adequate remedy for any breach by any party of the provisions of this
Agreement and any party shall be entitled to seek the remedies of
injunction, specific performance and other equitable relief (and
neither of the parties shall contest the appropriateness or
availability thereof), for any threatened or actual breach of any such
provision of this Agreement by any party and no proof of special
damages shall be necessary for the enforcement by any party of the
rights under this Agreement.
10. Invalidity
If at any time any provision of this Agreement is or becomes illegal,
invalid or unenforceable in any respect under the law of any
jurisdiction, that shall not affect or impair:
(A) the legality, validity or enforceability in that jurisdiction of
any other provision of this Agreement; or
(B) the legality, validity or enforceability under the law of any
other jurisdiction of that or any other provision of this
Agreement.
11. No Partnership
Nothing in this Agreement and no action taken by the parties under
this agreement shall constitute a partnership, association, joint
venture or other co-operative entity between any of the parties.
12. Time of Essence
Except as otherwise expressly provided, time is of the essence of this
Agreement.
13. Contracts (Rights of Third Parties) Xxx 0000
The parties to this Agreement do not intend that any term of this
Agreement should be enforceable, by virtue of the Contracts (Rights of
Third Parties) Xxx 0000, by any person who is not a party to this
Agreement.
14. Entire Agreement
14.1 This Agreement and the Confidentiality Agreement constitute the whole
and only Agreement between the parties relating to the Acquisition and
supersede any previous agreement whether written or oral between the
parties in relation to the Acquisition. Nothing in this Agreement
shall have the effect of varying or limiting the provisions of the
Confidentiality Agreement.
14.2 Each party acknowledges that in entering into this agreement it is not
relying upon any pre-contractual statement that is not set out in this
agreement.
14.3 Except in the case of fraud, no party shall have any right of action
against any other party to this Agreement arising out of or in
connection with any pre-contractual statement except to the extent
that it is repeated in this Agreement.
14.4 For the purposes of this clause, "pre-contractual statement" means any
draft, agreement, undertaking, representation, warranty, promise,
assurance or arrangement of any nature whatsoever, whether or not in
writing, relating to the subject matter of this agreement made or
given by any person at any time prior to the date of this Agreement.
14.5 This Agreement may only be varied in writing signed by each of the
parties.
15. Assignment
No party shall assign or create a trust over all or any part of the
benefit of, or its rights or benefits under, this Agreement.
16. Announcements
16.1 Subject to sub-clause 16.2, and unless the recommendation of the
Directors contemplated by sub-clauses 3.5 and 3.6, as the case may be,
has not been given or has been withdrawn, modified or qualified, no
announcement (other than the Press Announcement) concerning the
Acquisition or any ancillary matter contemplated by this agreement
shall be made by either party hereto without the prior written
approval of the other, such approval not to be unreasonably withheld
or delayed.
16.2 The Company and the Offeror may each make such announcements as are
required by:
(A) the law of any relevant jurisdiction; or
(B) any securities exchange or regulatory or governmental body to
which that party is subject or submits, wherever situated,
including (without limitation) the UK Listing Authority, the
London Stock Exchange, the New York Stock Exchange, the Mexico
Stock Exchange and the Panel whether or not the requirement has
the force of law; or
(C) for the better implementation of the Acquisition, the Scheme,
the Offer or any ancillary matter,
in which case the party concerned shall take all such steps as may be
reasonable and practicable in the circumstances to agree the contents
of such announcement with the other party before making such
announcement.
17. Costs and Expenses
Each party shall pay its own costs and expenses in relation to the
negotiation and preparation of this Agreement and the implementation
of the transactions contemplated hereby.
18. Counterparts
18.1 This Agreement may be executed in any number of counterparts, and by
the parties on separate counterparts, but shall not be effective until
each party has executed at least one counterpart.
18.2 Each counterpart shall constitute an original of this Agreement, but
all the counterparts shall together constitute but one and the same
instrument.
19. Choice of Governing Law
This agreement is to be governed by and construed in accordance with
English law.
20. Jurisdiction
20.1 Each of the parties to this Agreement irrevocably agrees that the
courts of England shall have exclusive jurisdiction to settle any
disputes which may arise out of or in connection with this Agreement
and that accordingly any proceedings may be brought in the courts of
England.
20.2 Each party irrevocably waives any objection which it may have now or
hereafter to the laying of the venue of any proceedings in the courts
of England and any claim that any such proceedings have been brought
in an inconvenient forum and further irrevocably agrees that a
judgement in any proceedings brought in the courts of England shall be
conclusive and binding upon such party and may be enforced in the
courts of England.
IN WITNESS of which this document has been executed and delivered as a deed on
the date which first appears on page 1 above.
Executed as a deed ) ../s/ Illegible..................
by RMC Group p.l.c. acting by ) ---------------------------------
Name:
Director
../s/ Illegible..................
---------------------------------
Name:
Director/Secretary
Executed as a deed by ) ../s/ Illegible..................
Cemex UK Limited acting by ) ---------------------------------
Name:
Director
../s/ Illegible..................
---------------------------------
Name:
Director/Secretary
SCHEDULE 1
(Press Announcement)
SCHEDULE 2
(Timetable)
-------------------------------------------------------------------------------
Date Action
-------------------------------------------------------------------------------
D-28 Press Announcement released
-------------------------------------------------------------------------------
D-12 Issue application for permission to convene Court Meeting
-------------------------------------------------------------------------------
D-8 Swearing and filing of affidavit exhibiting Scheme Document
-------------------------------------------------------------------------------
D-5 Hearing of application for permission to convene Court Meeting
-------------------------------------------------------------------------------
D Scheme Document posted
-------------------------------------------------------------------------------
D+23 Court Meeting and Extraordinary General Meeting
US Business
Days/D+24 Presentation of petition applying for Court Orders
-------------------------------------------------------------------------------
D+32 Application for directions
-------------------------------------------------------------------------------
D+35 Advertising
-------------------------------------------------------------------------------
D+49 Court Hearing (depending on Clearances)
-------------------------------------------------------------------------------
D+50 Effective Date
-------------------------------------------------------------------------------
D+71 Advertise reduction
-------------------------------------------------------------------------------
Notes:
1. The parties recognise that the Timetable will be affected by the
occurrence of non-Business Days and the availability of the Court and
its staff.
2. The parties recognise that the Timetable may be affected by the
requirement to obtain Clearances.
3. The parties will discuss the timing of the matters to occur following
the Court Meeting and Extraordinary General Meeting in the light of
progress towards obtaining Clearances.
