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EXHIBIT NO. 2.2: AGREEMENT RELATING TO THE FRENCH EXCHANGE OFFER
THIS AGREEMENT IS MADE ON MARCH 14, 2000
AMONG:
(1) ALCAN ALUMINIUM LIMITED, a company incorporated under the laws of Canada
(ALCAN),
(2) PECHINEY, a company incorporated under the laws of France (PECHINEY), and
(3) ALUSUISSE LONZA GROUP AG, a company incorporated under the laws of
Switzerland (ALGROUP).
WHEREAS:
(E) Alcan, Algroup and Pechiney entered into a Combination Agreement on 15
September 1999 (the COMBINATION AGREEMENT) to effect the combination of
their respective businesses.
(F) The Combination Agreement provides that a condition to be satisfied or
waived prior to the making of the French Exchange Offer is that the
European Commission shall have adopted a decision clearing the French
Exchange Offer.
(G) The parties understand that on the basis of the current undertakings, the
European Commission will not adopt such a decision and that the time period
for amending such undertakings on the current filing has lapsed.
(H) Whereas by a separate agreement (the TERMINATION AGREEMENT), Alcan, Algroup
and Pechiney agreed to terminate the Combination Agreement in relation to
Pechiney pursuant to Article 8.1 thereof and to withdraw the notification
on Form CO submitted in connection therewith under Council Regulation No
4064/89/EEC on 20 September 1999 which relates to the Alcan/Pechiney
combination and the Alcan/Algroup/Pechiney combination
NOW, THEREFORE, in consideration of the agreements contained herein, the Parties
hereto, intending to be legally bound, hereby agree as follows:
ARTICLE 1 -- NEW FRENCH EXCHANGE OFFER
1.1 Alcan, Algroup and Pechiney agree that, as from the date of this Agreement,
Alcan, Algroup and Pechiney shall have rights and obligations in the terms
of those provisions of the Combination Agreement which have ceased to apply
by reason of the Termination Agreement and of those which otherwise apply
in relation to Pechiney or the French Exchange Offer as if those terms were
set out herein in full but on the basis that paragraph 10 of part B of
Schedule 2 to the Combination Agreement as set out herein shall have
deleted therefrom the words "the European Commission has adopted a decision
under Articles 6(1)(b) or 8(2) of Council Regulation No 4064/89/EEC
clearing the French Exchange Offer" and the following words added in place
of them "the European Commission has adopted a decision under Article
6(1)(b) of Council Regulation 4064/89/EEC following a notification on Form
CO submitted to the European Commission, as a result of the obligation
which has arisen under Council Regulation 4064/89/EC by reason of the
execution of this Agreement and in relation to which undertakings have
been or shall be given to the European Commission in the form referred to
in Article 1.2 below clearing the French Exchange Offer" and on the basis
that warranties given by Alcan to Pechiney and by Pechiney to Alcan shall
be considered to have been given on 15 September 1999 provided however that
the obligation of Alcan to make the French Exchange Offer shall only become
binding on Alcan as from and automatically upon the date upon which the
undertakings referred to in Article 1.2 are agreed by Alcan, Pechiney and
Algroup and are given to the European Commission.
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1.2 For the purposes of giving effect to the amended paragraph 10 referred to
above, in relation to any undertakings required to be given to obtain
clearance from the European Commission, Alcan, Algroup and Pechiney shall
seek to identify a form of undertakings to the European Commission which
are mutually acceptable to each of them and to the European Commission. If
no such undertakings are agreed by April 30, 2000, Alcan, Algroup and
Pechiney agree that either Pechiney or Alcan may terminate this Agreement
and, if this right is exercised, there shall be no further obligation to
make the French Exchange Offer.
1.3 For the avoidance of doubt, it is agreed among Alcan, Algroup and Pechiney
that Alcan's obligations to obtain shareholder approval in relation to the
French Exchange Offer which may be required to be made by Alcan by reason
of this Agreement shall be treated as having been discharged and each of
them agrees that there shall be no obligation on any party by reason of
this Agreement to redo or re-perform or re-warrant any act or thing which
has already been done in accordance with the terms of the Combination
Agreement prior to the date of this Agreement and which is not required to
be done for the purposes of this Agreement.
1.4 The Combination Agreement to the extent not terminated and this Agreement
shall operate together as if they were one agreement having the text set
out in the Appendix hereto but reflects the differences described in
Article 1.1. Where there is any discrepancy between this Agreement and the
provisions included in this Agreement by reason of Article 1.1, the
provisions of this Agreement shall prevail. For the purposes of construing
the Combination Agreement to the extent not terminated the words "and this
Agreement shall be construed and take effect as if France had never been a
party to this Agreement and Canada had never been obligated to make the
French Exchange Offer" in the Article 8.6.1 of the Combination Agreement
shall not take effect unless and until this Agreement is terminated in
relation to Pechiney.
ARTICLE 2 -- GENERAL
2.1 DEFINITIONS. Except where the context otherwise requires and save as
otherwise defined or specified herein, words and expressions used in this
Agreement and which are defined in the Combination Agreement shall have the
same meaning in this Agreement as in the Combination Agreement.
2.2 ASSIGNMENT. This Agreement shall not be assignable by any Party hereto
without the consent of the other Parties by operation of law or otherwise.
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2.3 NO PARTNERSHIP OR AGENCY. Nothing in this Agreement (or any of the
arrangements contemplated by it) shall be deemed to constitute a
partnership between the Parties nor, save as may be expressly set out in
it, constitute any Party the agent of another Party for any purpose.
2.4 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of England without regard to its conflict of laws
principles.
2.5 SETTLEMENT OF DISPUTES. Any dispute arising out of or in connection with
this Agreement shall be subject to the jurisdiction of the English courts,
to which each Party hereby submits for such purpose, and each will, if
necessary, appoint an agent for service of process in England.
2.6 NOTICES. Any notice, request, consent, agreement or approval which may or
is required to be given pursuant to this Agreement shall be in writing and
shall be sufficiently given or made if delivered (by mail or by facsimile),
in the case of:
ALGROUP
Xxxxxxxxxxxxxx 0
XX Xxx
XX 0000 Xxxxxx.
Attention: Chief Legal Officer
fax: 000 000-0000
(with a copy to Xxxxx X. Xxxxxx
Xxxxxxxx & Xxxxxxxx,
St. Xxxxx'x House
0x Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxx
XX0X 0XX
fax: 00000 000 0000)
PECHINEY
Pechiney,
0, xxxxx xx Xxxxxxxxxx Xxxxxxxx,
00000 Xxxxx, Pechiney
Attention: Xxxxxxx Xxxx-Charreton, General Counsel
fax: 00 (0)0 00 00 00 06
(with a copy to Didier Xxxxxx
Xxxxxx Prat et Associes
000, xxx xx Xxxxxxxx Xxxxx-Xxxxxx
00000 Xxxxx
fax: 00 (0)0 00 00 00 73)
ALCAN
Alcan Aluminium Limited,
0000 Xxxxxxxxxx Xxxxxx Xxxx,
Xxxxxxxx, Xxxxxx
X0X 0X0, Alcan
Attention: Xxxxx XxXxxxxxx, Chief Legal Officer
fax: (000) 000-0000
(with a copy to Xxxxx Xxxxxxxxxx
Freshfields
00 Xxxxxxxxx Xxxxxxxxx
Xxxxx, 00000
Fax: 00 (0)0 0000 0000)
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or to such other address or facsimile number as the relevant Party may from time
to time advise by notice in writing given pursuant to this Article. The date of
receipt of any such notice, request, consent, agreement or approval shall be
deemed to be the date of delivery or telecopy (if during normal business hours
or, if not, the next business day).
2.7 EXPENSES. Each of the Parties shall pay its legal, financial advisory and
accounting costs and expenses incurred in connection with the preparation,
execution and delivery of this Agreement and all documents and instruments
executed, prepared or filed pursuant hereto or any other costs and expenses
whatsoever and howsoever incurred.
2.8 COUNTERPARTS. This Agreement may be executed in one or more counterparts
which together shall be deemed to constitute one valid and binding
agreement and delivery of the counterparts may be effected by means of a
telecopied transmission.
2.9 AMENDMENTS. This Agreement may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written agreement
executed by all of the Parties hereto.
2.10 SEVERABILITY. If any provision of this Agreement is held to be invalid or
unenforceable, then such provision shall (so far as it is invalid or
unenforceable) be given no effect and shall be deemed not to be included in
this Agreement but without invalidating any of the remaining provisions of
this Agreement. The parties shall then use all commercially reasonable
efforts to replace the invalid or unenforceable provisions by a valid and
enforceable substitute provision the effect of which is as close as
possible to the intended effect of the invalid or unenforceable provision.
2.11 ENTIRE AGREEMENT. This Agreement, the Termination Agreement, the
Combination Agreement to the extent not terminated, the Pechiney Disclosure
Letter, the Algroup Disclosure Letter and the Alcan Disclosure Letter, the
letter from Alcan to Algroup dated the date of the Initial Combination
Agreement, the letter delivered by Alcan to Algroup and Pechiney dated
August 11, 1999, together with the Confidentiality Agreement, constitute
the entire agreement and understanding between and among the Parties hereto
with respect to the subject matter hereof and the Swiss Exchange Offer and
this Agreement supersedes any prior agreement (including the MOU and the
Combination Agreement to the extent terminated), with respect to the making
of the French Exchange Offer for French Shares under the Combination
Agreement. Each party hereto agrees that, except for representations and
warranties expressly contained in this Agreement (including by virtue of
Article 1.1), none of Alcan, Pechiney and Algroup makes any other
representations or warranties, and each hereby disclaims any other
representations or warranties made by itself or any of its officers,
directors, employees, agents, financial and legal advisors or other
representatives, with respect to the execution and delivery of this
Agreement, notwithstanding the delivery or disclosure to the other or the
other's representatives of any documentation or other information with
respect to any one or more of the foregoing.
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IN WITNESS WHEREOF, the undersigned have each executed and delivered this
agreement as of the date first above written.
ALCAN ALUMINIUM LIMITED
By: (Signed)
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Xxxxxxx Xxxxxx
PECHINEY
By: (Signed)
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Xxxx-Xxxxxx Xxxxxx
ALUSUISSE LONZA GROUP AG
By: (Signed)
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Xxxxxx Xxxxxxxxxx
By: (Signed)
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Xxxxxx Xxxxx
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