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Exhibit 4.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is
made and entered into as of June , 1999, by and between AMERICAN NATIONAL
CAN GROUP, INC., a Delaware corporation (the "Company"), and PECHINEY, a French
corporation ("Pechiney").
RECITALS
A. In connection with the initial public offering of
shares of common stock by the Company (the "Initial Public Offering"), the
Company desires to grant to Pechiney certain registration rights with respect
to the common stock of the Company acquired or held directly or indirectly by
Pechiney from time to time (collectively, the "Shares").
B. The parties hereto desire to set forth the terms and
conditions of the Company's covenants and agreements in respect of the
registration of the Shares with the Securities and Exchange Commission and all
applicable state securities agencies.
C. In consideration of the premises and the mutual
agreements contained herein, the parties hereby agree as follows:
AGREEMENT
1. DEFINITIONS
As used in this Agreement, the following capitalized shall
have the following meanings:
Advice: See the last paragraph of Section 5 hereof.
Agents: Any Person authorized to act and who acts on behalf
of Pechiney with respect to the transactions contemplated by this
Agreement.
Common Stock: Shares of the Company's common stock, par
value $.01 per share, as the same may be constituted from time to
time.
Demand Registration: See Section 3(a) hereof.
Exchange Act: The Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder as in effect
from time to time.
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Person: An individual, partnership, corporation trust or
unincorporated organization, or a government or agency or political
subdivision thereof.
Prospectus: The prospectus included in any Registration Statement,as
amended or supplemented by any prospectus supplement with respect to the
terms of the offering of any portion of the Registrable Securities covered
by the Registration Statement and all other amendments and supplements to
the Prospectus, including post-effective amendments and all material
incorporated by reference in such Prospectus.
Registrable Securities: (i) The Shares and (ii) any securities issued
or issuable with respect to the Shares by way of a stock dividend or stock
split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization, until such Shares or
other securities are not Restricted Securities as defined in Section 2.
Registration Expenses: See Section 6 hereof.
Registration Statement: Any registration statement of the Company
which covers Registrable Securities pursuant to the provisions of this
Agreement, including (i) the Prospectus, (ii) amendments and supplements to
such Registration Statement, (iii) post-effective amendments, (iv) all
exhibits and all material incorporated by reference in such Registration
Statement and (v) any registration statement pursuant to a Demand
Registration.
Restricted Securities: The Registrable Securities upon original
issuance thereof, subject to the provisions of Section 2 hereof.
Securities Act: The Securities Act of 1933, as amended from time
to time.
SEC: The Securities and Exchange Commission.
Shares: See Recital A.
Underwritten Offering: The offering and sale of securities of the
Company covered by any Registration Statement pursuant to a firm commitment
underwriting to an underwriter at a fixed price of reoffering or pursuant to
agency or best efforts arrangements with an underwriter.
Unless the context otherwise requires: (i) "or" is not exclusive; and (ii)
words in the singular include the plural and in the plural include the singular.
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2. Securities Subject to this Agreement
Registrable Securities. The securities entitled to the benefits of
this Agreement are the Registrable Securities but, with respect to any
particular Registrable Security, only so long as such security continues to be
a Restricted Security. A Registrable Security ceases to be a Restricted
Security when (i) it has been effectively registered under the Securities Act
and disposed of in accordance with the Registration Statement covering it, (ii)
it has been distributed pursuant to Rules 1444 or 144A (or any similar
provisions then in force) under the Securities Act or (iii) it has otherwise
been transferred and a new certificate or other evidence of ownership for it
not bearing a legend restricting transfer under the Securities Act and not
subject to any stop transfer order has been delivered by or on behalf of the
Company and no other restriction on transfer exists.
3. Demand Registration
(a) Requests for Registration. At any time Pechiney may make a
written request for registration with the SEC under and in accordance with the
provisions of the Securities Act of all or part of its Registrable Securities
(a "Demand Registration"). All requests made pursuant to this Section 3(a)
shall specify the number of Registrable Securities to be registered and the
intended methods of disposition thereof. All such requests shall be delivered
to the Company in accordance with the provisions of Section 9(d) of this
Agreement.
(b) Number of, and Limitations on, Registrations. Pechiney will be
entitled to request a total of [ ] Demand Registrations. The Company will not
be obligated to register any Registrable Securities pursuant to such a Demand
Registration (i) unless there is requested to be included in such registration
at least [ ] Shares (subject to such adjustments as may be necessary by reason
of the occurrence of an event contemplated by clause (ii) of the definition of
Registrable Securities) (unless, at the time of such request, Pechiney holds
less than [ ] Shares, in which case such request must be for such lesser
amount) or (ii) it a prior Demand Registration was declared effective within a
period commencing [12] months prior to the date of the written request for such
Demand Registration and such prior Demand Registration was maintained effective
for a period of not less than [180] days, or such shorter period during which
all Registrable Securities covered by such prior Demand Registration were sold
or withdrawn.
(c) Effective Registration -- Expenses. In any registration initiated
as a Demand Registration, Pechiney will pay all Registration Expenses, whether
or not the Registration Statement has become effective.
(d) Selection of Underwriters. If any of the Registrable Securities
covered by a Demand Registration are to be sold in an underwritten offering, or
in a best efforts
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underwritten offering, the investment banker or investment bankers and manager
or managers that will administer the offering will be selected by Pechiney.
If Pechiney disapproves of the terms and conditions of the underwriting,
Pechiney may elect to withdraw all its Registrable Securities by written notice
to the Company and the managing underwriter. The Registrable Securities
withdrawn shall also be withdrawn from registration.
4. Incidental Registration.
(a) Subject to Section 5 and the other terms and conditions set forth
in this Section 4, if at any time 180 days after this Agreement the Company
determines that it shall file a registration statement under the Securities Act
(other than a registration statement on Form S-4 or S-8 (or successor forms
thereto) or filed in connection with an exchange offer or an offering of
securities solely to the Company's existing stockholders) for the sale of
Common Stock for its own account or for the account of any third party (a
"Selling Securityholder"), the Company shall each such time promptly give
Pechiney written notice of such determination setting forth the date on which
the Company proposes to file such registration statement, which date shall be
no earlier than 30 days from the date of such notice, and advising Pechiney of
its right to have any Registrable Securities beneficially owned by it included
in such registration. Upon the written request of Pechiney received by the
Company no later than 15 business days after the date of the Company's notice,
the Company shall use its best efforts to cause to be registered under the
Securities Act all of the Registrable Securities that Pechiney has so requested
to be registered. The Company, in its sole discretion shall appoint the
underwriters, if any, for any registration covered by this Section 4 in the
case of a sale by the Company of Common Stock for its own account.
(b) The Company's obligation to include Registrable Securities in a
registration statement pursuant to Section 4(a) above is subject to the
following limitations: (i) if, at any time after giving written notice of its
determination to register Common Stock for its own account or for the account
of a Selling Securityholder and prior to the effective date of any registration
statement filed in connection with such registration, the Company or such
Selling Securityholder shall determine for any reason not to register such
securities, the Company may, at its election, give written notice of such
determination to Pechiney and thereupon the Company shall be relieved of its
obligation to use any efforts to register any Registrable Securities in
connection with such aborted registration and (ii) if the Registrable
Securities registered in accordance with this Section 4 is to be sold in one or
more firm commitment underwritten offerings, and the sole or managing
underwriter, as the case may be, of such underwritten offering advises the
Company, Pechiney and the Selling Securityholder to be included in such
registration that, in its opinion, the total amount of such securities to be so
registered, including such Registrable Securities, will exceed the maximum
amount (the "Maximum Offering Size") of the Company's securities that can be
marketed (1) at a price reasonably related to the then current market value of
such securities or (2) without otherwise
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materially and adversely affecting the entire offering, then the Company shall
include in such registration, in the following priority up to the Maximum
Offering Size: (x) first, all of the securities proposed to be registered for
offer and sale by the Company or the Selling Securityholder, as the case may be,
and (y) second, all of the Registrable Securities requested to be included in
such registration by Pechiney pursuant to this Section 4, allocated, if
necessary, for such offering not to exceed the Maximum Offering Size, pro rata
among the holders requesting registration of such Registrable Securities on the
basis of the relative number of shares of Registrable Securities each such
holder has requested to be included in such registration.
5. Registration Procedures
Whenever Pechiney has requested that any Registrable Securities be
registered pursuant to this Agreement, the Company will promptly take all such
actions as may be necessary or desirable to permit the sale of such Registrable
Securities in accordance with the intended method or methods of disposition
thereof, and pursuant thereto the Company will as expeditiously as possible:
(a) with respect to a request to file a Registration Statement
covering Registrable Securities made pursuant to Section 3, use its best
efforts to prepare and file with the SEC not later than [90] days after
receipt of such request (which [90]-day period may be extended by the
Company for up to an additional [90] days if at the time of such request
the Company is engaged in negotiations looking toward its participation in
a material merger, acquisition or other form of business combination or, if
by reason of such transaction, the Company is not in a position to timely
prepare and file the Registration Statement and the Company furnishes to
Pechiney a certificate signed by the president or a vice president of the
Company stating that in the good faith opinion of the board of directors of
the Company such registration would interfere with such transaction then
being pursued by the Company) a Registration Statement on a form for which
the Company then qualifies which is satisfactory to the Company and
Pechiney (unless the offering is made on an underwritten basis, including
on a best efforts underwriting basis, in which event the managing
underwriter or underwriters may determine the form to be used) and which
form shall be available for the sale of the Registrable Securities in
accordance with the intended method or methods of distribution thereof, and
use its best efforts to cause such Registration Statement to become
effective; the Company shall not file any Registration Statement pursuant
to Section 3 or any amendment thereto or any Prospectus or any supplement
thereto (including such documents incorporated by reference) to which
Pechiney or the underwriters, if any, shall reasonably object in light of
the requirements of the Securities Act or any other applicable laws or
regulations;
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(b) before filing a Registration Statement or Prospectus or any
amendments or supplements thereto (excluding documents to be incorporated by
reference therein, except in the case of the preparation of the initial
Registration Statement), the Company will, within [five] days of filing,
furnish to Pechiney and the underwriters, if any, copies of all such documents
in substantially the form proposed to be filed (including documents
incorporated therein by reference), to enable Pechiney and the underwriters, if
any, to review such documents prior to the filing thereof, and the Company
shall make such reasonable changes thereto (including changes to, or the filing
of amendments reflecting such changes to, documents incorporated by reference)
as may be reasonably requested by Pechiney and the managing underwriter or
underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC such
amendments and post-effective amendments to the Registration Statement as may
be necessary to keep the Registration Statement continuously effective for a
period of not less than 180 days or such longer period as is required for the
intended method of distribution, or such shorter Period which will terminate
when all Registrable Securities covered by such Registration Statement have
been sold or withdrawn; cause the Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
under the Securities Act; and comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the intended methods
of disposition by Pechiney thereof set forth in such Registration Statement or
supplement to the Prospectus;
(d) notify Pechiney and the managing underwriters, if any, promptly, and
(if requested by any such Person) confirm such advice in writing, (1) when the
prospectus or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to the Registration Statement or any post-effective
amendment, when the same has become effective, (2) of any request by the SEC
for amendments or supplements to the Registration Statement or the Prospectus
or for additional information, (3) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose, (4) if at any time the representations and
warranties of the Company contemplated by paragraph (o) below cease to be true
and correct, (5) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Registrable Securities for sale
in any jurisdiction or the initiation or threatening of any proceeding for such
purpose and (6) of the happening of any event which makes any statement made in
the Registration Statement, the Prospectus or any document incorporated
therein by reference untrue or which requires the making of any changes in the
Registration Statement, the Prospectus
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or any document incorporated therein by reference in order to make the
statements therein not misleading:
(e) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of the Registration Statement at the earliest
possible moment;
(f) as promptly as practicable after filing with the SEC of any document
which is incorporated by reference into the Registration Statement or the
Prospectus (after initial filing of the Registration Statement) provides copies
of such documents to counsel to Pechiney and to the managing underwriters;
(g) furnish to Pechiney and each managing underwriter, without charge, at
least one signed copy of the Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, all documents
incorporated therein by reference and all exhibits (including those incorporated
by reference) and a reasonable number of conformed copies of all such documents;
(h) delivery to Pechiney and the underwriters, if any, as many copies of
the Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons may reasonably request; the Company consents
to the use of the Prospectus or any amendment or supplement thereto by Pechiney
and the underwriters, if any, in connection with the offering and sale of the
Registrable Securities covered by the Prospectus or any amendment or supplement
thereto;
(i) prior to the date on which the Registration Statement is declared
effective, use its best efforts to register or qualify, or cooperate with
Pechiney and the underwriters, if any, and their respective counsel in
connection with the registration or qualification of, such Registration
Securities for offer and sale under the securities or blue sky laws of such
jurisdictions as any seller or underwriter reasonably requests in writing and do
any and all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Registrable Securities covered by the
Registration Statement; provided that the Company will not be required to
qualify generally to do business in any jurisdiction where it is not then so
qualified or to take any action which would subject it to general service of
process in any such jurisdiction where it is not then so subject; provided,
further, that the Company will not be required to qualify such Registrable
Securities in any jurisdiction in which the securities regulatory authority
requires that Pechiney submit any shares of its Registrable Securities to the
terms, provisions and restrictions of any escrow, lock-up or similar
agreement(s) for consent to sell Registrable Securities in such jurisdiction
unless Pechiney agrees to do so;
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(j) cooperate with Pechiney and the managing underwriters, if any, to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends; and
enable such Registrable Securities to be in such denominations and registered in
such names as the managing underwriters may request at least two business days
prior to any sale of Registrable Securities to the underwriters;
(k) use its best efforts to cause the Registrable Securities covered by
the Registration Statement to be registered with or approved by such other
governmental agencies or authorities within the United States as may be
necessary to enable the seller or sellers thereof or the underwriters, if any,
to consummate the disposition of such Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph (d) above,
prepare a supplement or post-effective Amendment to the Registration Statement
or the Prospectus or any document incorporated therein by reference or file any
other required documents so that, as thereafter delivered to the purchasers of
the Registrable Securities, the Prospectus will not contain an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein not misleading;
(m) use its best efforts to cause all Registrable Securities covered by
the Registration Statement to be listed on each securities exchange on which
similar securities issued by the Company are then listed if requested by
Pechiney or the managing underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable Securities;
(o) enter into such agreements (including an underwriting agreement) and
take all such other actions in connection therewith as Pechiney or the managing
underwriters, if any, reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities and in such connection, whether or
not an underwriting agreement is entered into and whether or not the
registration is an underwritten registration (1) make such representations and
warranties to Pechiney and the underwriters, if any, in form, substance and
scope as are customarily made by issuers to underwriters in primary underwritten
offerings (including, without limitation, an agreement to not sell equity
securities during a customary lock-up period) and confirm the accuracy of the
same if and when requested, and matters relating to the compliance of the
Registration Statement and the Prospectus with the Securities Act; (2) obtain
opinions of counsel to the Company, and updates thereof (which counsel and
opinions (in form, scope and substance) shall be reasonably satisfactory to the
managing underwriters) addressed to Pechiney and the underwriters, if any,
covering the matters
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customary in underwritten primary offerings and such other matters as may
be reasonably requested by Pechiney and underwriters, if any; (3) obtain
"cold comfort" letters and updates thereof from the Company's independent
certified public accountants addressed to Pechiney and the underwriters, if
any, such letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters by underwriters in connection
with primary underwritten offerings; (4) if an underwriting agreement is
entered into, the same shall set forth in full the indemnification
provisions and procedures of Section 7 hereof with respect to all parties
to be indemnified pursuant to said Section; and (5) the Company shall
deliver such documents and certificates as may be requested by Pechiney and
the managing underwriters, if any, to evidence compliance with clause (1)
above and with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company. The above shall
be done at each closing under such underwriting or similar agreement or as
and to the extent required thereunder;
(p) make available for inspection during normal business hours by
Pechiney, any underwriter participating in any disposition pursuant to such
registration statement, and any attorney, accountant or other agent
retained by Pechiney or any such underwriter, all financial and other
records, pertinent corporate documents and properties of the Company, and
cause the Company's officers, directors and employees to supply all
information reasonably requested by Pechiney or any such underwriter,
attorney, accountant or agent in connection with such registration
statement; provided that any records, information or documents that are
designated by the Company in writing as confidential shall be kept
confidential by such Persons;
(q) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC, and make generally available to its
security holders, earnings statements satisfying the provisions of Section
11(a) of the Securities Act, no later than 45 days after the end of any
12-month period (1) commencing at the end of any fiscal quarter in which
Registrable Securities are sold to underwriters in a firm or best efforts
underwriting offering, and (2) beginning with the first month of the
Company's first fiscal quarter commencing after the effective date of the
Registration Statement, which statements shall cover said 12-month periods;
and
(r) take such other reasonable steps that are necessary or advisable
to permit the sale of such Registrable Securities.
The Company may require Pechiney to furnish to the Company such
information and documents regarding the distribution of such securities and
Pechiney as the Company may from time to time reasonably request in writing.
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Pechiney agrees by acquisition of such Registrable Securities that,
upon receipt of any notice from the Company of the happening of any event of
the kind described in Section 5(d)(6) hereof, Pechiney will forthwith
discontinue disposition of Registrable Securities until Pechiney's receipt of
the copies of the supplemented or amended Prospectus contemplated by Section 5
(1) hereof, or until it is advised in writing (the "Advice") by the Company
that the use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings which are incorporated by reference in the
Prospectus, and, if so directed by the Company, Pechiney will, or will request
the underwriters to, deliver to the Company (at the Company's expense) all
copies, other than permanent file copies then in Pechiney's possession, of the
Prospectus covering such Registrable Securities current at the time of receipt
of such notice. If the Company shall give such notice, the time periods
mentioned in Section 5(e) hereof shall be extended by the number of days during
the period from and including the date of the giving of such notice pursuant to
Section 5(d)(6) to and including the date when Pechiney shall have received the
copies of the supplemented or amended prospectus contemplated by Section 5(1)
hereof or the Advice.
6. Expenses
Except as otherwise provided herein, all expenses incident to the
Company's performance of or compliance with this Agreement including without
limitation all registration and filing fees, including with respect to filings
required to be made with the National Association of Securities Dealers, fees
and expenses of compliance with securities or blue sky laws (including
reasonable fees and disbursements of counsel for the underwriters in connection
with blue sky qualification of the Registrable Securities and determination of
their eligibility for investment under the laws of such jurisdictions as the
managming underwriters or holders of a majority of the Registrable Securities
being sold may designate), printing expenses, messenger, telephone and delivery
expenses, and fees and disbursements of counsel for the Company, Pechiney and
of all independent certified public accountants (including the expenses of any
special audit and "cold comfort" letters required by or incident to such
performance), the fees and expenses incurred in connection with the listing of
the securities to be registered on each securities exchange on which similar
securities issued by the Company are then listed, rating agency fees,
securities acts liability insurance if Pechiney so requires, the reasonable
fees and expenses of any special experts retained by Pechiney or by the Company
at the request of the managing underwriters in connection with such
registration and fees and expenses of other Persons retained by Pechiney (all
such expenses being herein called "Registration Expenses") will be borne by
Pechiney. The Company shall, in any event, pay its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties) and the expense of any annual
audit which are not "Registration Expenses" for purposes of this Agreement. In
no event shall the Company be liable for the payment of any discounts,
commissions or fees of underwriters, selling brokers, dealer managers or
similar industry professionals relating to the distribution of
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the Registrable Securities. Pechiney shall be liable for the cost and expense of
the time spent by its officers, employees and Agents incurred in connection with
the registration of Registrable Securities owned by it.
7. Indemnification
(a) Indemnification by Company. The Company will indemnify and hold
harmless, to the full extent permitted by law, Pechiney, its officers and
directors, their Agents and each Person who controls Pechiney (within the
meaning of the Securities Act) against all losses, claims, damages, liabilities
(or actions in respect thereto) and expenses to which any such Person may be
subject, under the Securities Act or otherwise, and reimburse all such Persons
for any legal or other expenses incurred with investigating or defending against
any such losses, claims, damages or liabilities, insofar as such losses, claims,
damages or liabilities arise out of or are based upon any untrue or alleged
untrue statement of a material fact contained in a Registration Statement,
Prospectus or preliminary prospectus or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as the same arise out of
or are based upon an untrue statement of a material fact or omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, which statement or omission is made therein in reliance
upon and in conformity with information furnished in writing to the Company by
Pechiney, expressly for use therein. Such indemnity shall remain in full force
and effect regardless of any investigation made by or on behalf of Pechiney,
Pechiney's directors and officers, their Agents or a controlling Person, and
shall survive the transfer of such securities by Pechiney. The Company will also
indemnify underwriters, selling brokers, dealer managers and similar securities
industry professionals participating in the distribution, their officers and
directors and each Person who controls such Persons (with the meaning of the
Securities Act) to the same extent as provided above with respect to the
indemnification of Pechiney of Registrable Securities.
(b) Indemnification by Pechiney. Pechiney will indemnify and hold
harmless, to the full extent permitted by law, the Company, its directors and
officers and each Person who controls the Company (within the meaning of the
Securities Act) against any losses, claims, damages, liabilities (or actions in
respect thereto) and expenses to which any such Person may be subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities arise out of or are based upon any untrue or alleged untrue
statement of a material fact contained in a Registration Statement or Prospectus
or preliminary prospectus or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, to the extent, but only if and to the extent, that such untrue or
alleged untrue statement or omission or alleged omission is made therein in
reliance upon and in conformity with the information furnished in writing by
Pechiney specifically for inclusion therein. In no event shall the liability of
Pechiney
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hereunder be greater in amount than the dollar amount of the proceeds received
by Pechiney upon the sale of the Registrable Securities giving rise to such
indemnification obligation. The Company shall be entitled to receive indemnities
from underwriters, selling brokers, dealer managers and similar securities
industry professionals participating in the distribution, to the same extent as
provided above with respect to information so furnished in writing by such
Persons.
(c) Conduct of Indemnification Proceedings. Any Person entitled to
indemnification hereunder will (i) give prompt notice to the indemnifying party
of any claim with respect to which it seeks indemnification and (ii) unless in
such indemnified party's reasonable judgment a conflict of interest may exist
between such indemnified and indemnifying parties with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party and in that case the
indemnified party shall have the right to participate in the conduct of such
defense provided that it will pay for the fees of its own counsel. Whether or
not such defense is assumed by the indemnifying party, the indemnifying party
will not be subject to any liability for any settlement made without its consent
(but such consent will not be unreasonably withheld). No indemnifying party will
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving of the claimant or plaintiff
to such indemnified party of a release from all liability in respect to such
claim or litigation. An indemnifying party who is not entitled to, or elects not
to, assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim, in which event the indemnifying party shall be obligated to pay the fees
and expenses of such additional counsel or counsels. The failure to notify an
indemnifying party promptly of the commencement of any such action, if and to
the extent prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section,
but the omission so to notify the indemnifying party will not relieve it of any
liability that it may have to any indemnified party otherwise than under this
Section.
(d) Contribution. To the extent any indemnification by an indemnifying
party is prohibited or limited by law, the indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect the relative fault
of the indemnifying party and indemnified party in connection with the actions
which resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of material fact or omission or
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alleged omission to state a material fact, has been made, or relates to
information supplied by, such indemnifying party or indemnified party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action. The amount paid or payable by a party as a
result of the losses, claims, damages or liabilities referred to above shall be
deemed to include any legal or other fees or expenses reasonably incurred by
such party in connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 7(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
8. Transfer of Registration Rights
The registration rights of Pechiney under this Agreement with respect
to any Registrable Securities may be transferred to any transferee of such
Registrable Securities, including any affiliate of Pechiney; provided, however,
that (i) Pechiney shall give the Company written notice at or prior to the time
of such transfer stating the name and address of the transferee and identifying
the securities with respect to which the rights under this Agreement are being
transferred and (ii) such transferee shall agree in writing, in form and
substance reasonably satisfactory to the Company, to be bound by the provisions
of this Agreement.
9. Miscellaneous
(a) Remedies. Pechiney shall be entitled to exercise all rights
provided herein or granted by law, including recovery of damages, and each will
be entitled to specific performance of their rights under this Agreement. The
Company agrees that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of the provisions of this Agreement
and hereby agrees to waive the defense in any action for specific performance
that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not on or after the
date of this Agreement enter into any agreement with respect to its securities
which is inconsistent with the rights granted to Pechiney in this Agreement or
otherwise conflicts with the provisions hereof. The Company has not previously
entered into any agreement with respect to its securities granting any
registration rights to any Person.
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(c) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless the Company has obtained the written consent of Pechiney.
(d) Notices. All notices, requests, demands and other communications
provided for by this Agreement shall be in writing (including telecopier or
similar writing) and shall be deemed to have been given at the time when mailed
in any general or branch office of the United States Postal Service, enclosed
in a registered or certified postpaid envelope, or sent by Federal Express or
other similar overnight couriers service, addressed to the address of the
parties stated below or to such changed address as such party may have fixed by
notice or, if given by telecopier, when such telecopy is transmitted and the
appropriate answerback is received.
(i) If to Pechiney:
Pechiney S.A.
0 xxxxx xx Xxxxxxxxxx Xxxxxxxx
00000 Xxxxx cedex 16
France
Attn: [ ]
(ii) If to the Company:
American National Can Group, Inc.
0000 X. Xxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxxxxxx
(e) Successors and Assigns. This Agreement is solely for the benefit of
the parties and their respective successors and assigns. Nothing herein shall
be construed to provide any rights to any other entity or individual.
(f) Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same document.
(g) Headings. Section headings are for convenience only and do not control
or affect the meaning or interpretation of any terms or provisions of this
Agreement.
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(h) Governing Law. This Agreement shall be governed by the laws of
the State of New York.
(i) Severability. Should any part, term or condition hereof be
declared illegal or unenforceable or in conflict with any other law, the
validity of the remaining portions or provisions of this Agreement shall not be
affected thereby, and the illegal or unenforceable portions of the Agreement
shall be and hereby are redrafted to conform with applicable law, while leaving
the remaining portions of this Agreement intact.
(j) Entire Agreement. This Agreement constitutes the entire
understanding between the parties and supersedes all proposals, commitments,
writings, negotiations and understandings, oral and written, and all other
communications between the parties relating to the subject matter of this
Agreement. This Agreement may not be amended or otherwise modified except
writing duly executed by all of the parties. A waiver by any party of any
breach or violation of this Agreement shall not be deemed or construed as a
waiver of any subsequent breach or violation thereof.
(k) Attorneys' Fees. In any action or proceeding brought to enforce
any provision of this Agreement, or where any provision hereof or thereof is
validly asserted as a defense, the successful party shall be entitled to
recover reasonable attorneys' fees in addition to any other available remedy.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
AMERICAN NATIONAL CAN GROUP, INC.
By:_____________________________________
Name
Title
PECHINEY
By:_____________________________________
Name
Title
