20 DECEMBER 2001
IMPERIAL CHEMICAL INDUSTRIES PLC
ICI ALTA INC.
HUNTSMAN SPECIALTY CHEMICALS CORPORATION
AMENDMENT AGREEMENT
TO AMEND THE MEMBERSHIP INTEREST OPTION AGREEMENT
DATED 2 NOVEMBER 2000
THIS AMENDMENT AGREEMENT is made on 20 December 2001
BETWEEN:
IMPERIAL CHEMICAL INDUSTRIES PLC, a company incorporated in England and Wales
whose registered office is at Imperial Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxx XX0X 0XX
(ICI);
ICI ALTA INC., a corporation incorporated under the laws of Delaware whose
principal office is at 0000 Xxxxxxx Xxxx, Xxx Xxxxxx, Xxxxxxxx 00000, XXX (ICI
ALTA); and
HUNTSMAN SPECIALTY CHEMICALS CORPORATION, a corporation incorporated under the
laws of Delaware whose principal office is at 000 Xxxxxxxx Xxx, Xxxx Xxxx Xxxx,
Xxxx, XXX (HSCC),
(together, the PARTIES)
WHEREAS:
(A) On 2 November 2000, the Parties entered into an agreement under which HSCC
and ICI Alta granted to each other certain options in respect of the 300
membership interest units held by ICI Alta in Huntsman International Holdings
LLC (HIH) (then named Huntsman ICI Holdings LLC). That agreement has since been
supplemented and amended and, as so supplemented and amended prior to the date
of this Amendment Agreement, is referred to in this Amendment Agreement as the
OPTION AGREEMENT.
(B) The Parties wish to amend the Option Agreement in the manner described in
this Amendment Agreement.
IT IS AGREED as follows:
INTERPRETATION
1.1 Terms and expressions defined in the Option Agreement have the same meaning
when used in this Amendment Agreement.
1.2 The headings in this Amendment Agreement shall not affect its
interpretation.
1.3 The Schedule to this Agreement forms part of this Amendment Agreement.
AMENDMENT OF THE OPTION AGREEMENT
2.1 The Parties hereby agree that, subject to clause 2.4 below, the Option
Agreement shall be, and shall be deemed to be, amended with effect on and from
the date of this Amendment Agreement (the EFFECTIVE DATE) so that it shall take
effect in the form set out in the Schedule hereto. The Parties undertake,
immediately following execution of this Amendment Agreement, to execute and
deliver a copy of the
document set out in the Schedule hereto to confirm the adoption by the Parties
of the amendments to the Option Agreement effected hereby (and not, for the
avoidance of doubt, for the purpose of adopting that document as a new agreement
in its own right, but rather to restate the Option Agreement as amended hereby).
2.2 The Option Agreement, as amended by this Amendment Agreement, shall remain
in full force and effect and, save where the context otherwise requires, any
reference in the Option Agreement to "Agreement" shall be read and construed as
a reference to the Option Agreement as amended by this Amendment Agreement.
2.3 For the avoidance of doubt, neither this Amendment Agreement nor the
execution of the copy of the document set out in the Schedule hereto pursuant to
clause 2.1 above shall affect the validity of, revoke or modify in any way the
Put Option Notice which was served on 30 October 2001 in accordance with the
terms of the Option Agreement in the form in which they subsisted as at that
date. The Parties acknowledge that the Put Option Notice was validly served on
30 October 2001 in accordance with the terms of the Option Agreement in the form
in which they subsisted as at that date but agree that, subject to clause 2.4
below, the rights, obligations and liabilities of the Parties arising under the
Option Agreement as a consequence of the exercise of the Put Option are as set
out in the document set out in the Schedule hereto in replacement for, and to
the exclusion of, those arising under the Option Agreement as a result of such
exercise.
2.4 For the purposes of this clause 2.4 and clause 2.5, the ACCRUED RIGHTS,
OBLIGATIONS AND LIABILITIES are those rights, obligations and liabilities of the
Parties which have accrued under clause 5 (excluding (i) the last sentence of
clause 5.2 and (ii) clause 5.3(b)) and clause 9.1 and clause 9.8 of the Option
Agreement, and under clause 11 of the Framework Agreement as deemed to be
incorporated into the Option Agreement by clause 9.11 of the Option Agreement,
in each case prior to the Effective Date. The amendments to the Option Agreement
effected by this Amendment Agreement shall not affect the Accrued Rights,
Obligations and Liabilities, which shall remain in full force and effect.
Notwithstanding the provisions of Section 13.05 (GOVERNING LAW) of the document
set out in the Schedule hereto, the Accrued Rights, Obligations and Liabilities
shall continue to be governed by the laws of England and shall be construed in
accordance with the laws of England and on the basis of the provisions of the
Option Agreement in the form in which they subsisted as at the date on which the
relevant right, obligation or liability respectively accrued, PROVIDED THAT the
provisions of Section 13.06 (JURISDICTION) of the document set out in the
Schedule hereto (and not the provisions of Clause 9.5 of the Option Agreement in
the form it took prior to the Effective Date) shall apply in respect of any
dispute which may arise after the Effective Date in connection with any Accrued
Rights, Obligations and Liabilities.
2.5 The Parties agree that any rights, obligations and liabilities of the
Parties other than the Accrued Rights, Obligations and Liabilities which have
accrued under the Option Agreement prior to the Effective Date are of no further
force and effect. For the avoidance of doubt, this clause 2.5 is without
prejudice to clause 2.3 above.
WARRANTIES
3.1 Each of ICI and ICI Alta warrants to HSCC as follows:
(a) that it is a corporation duly incorporated, validly existing and in good
standing (with respect to jurisdictions that recognise the concept of good
standing) under the laws of the jurisdiction in which it is incorporated;
(b) that the execution, delivery and performance by it of this Amendment
Agreement are within its corporate capacity and have been duly authorised
by all necessary corporate action, and that this Amendment Agreement
constitutes binding obligations of it;
(c) that the execution, delivery and performance by it of this Amendment
Agreement require no material action by or in respect of, or material
filing with, any Governmental Entity other than (i) compliance with any
applicable requirements of any Competition Authority; (ii) compliance with
any applicable requirements of the 1934 Act (as such term is defined in the
document set out in the Schedule hereto) and any other securities laws,
whether federal, state or foreign, and (iii) approvals required under, and
filings and notifications required to be made under, the Listing Rules
issued by the Financial Services Authority or the rules of the New York
Stock Exchange; and
(d) that the execution, delivery and performance by it of this Amendment
Agreement do not and will not violate its memorandum or articles of
association (in the case of ICI) or its certificate of incorporation or
bylaws (in the case of ICI Alta); assuming compliance with the matters
referred to in (c) above, do not violate any applicable law, rule,
regulation, judgment, injunction, order or decree, except for such matters
as would not, individually or in the aggregate, reasonably be expected to
(i) have a material adverse effect on the business, financial condition or
results of operations of ICI or ICI Alta, (ii) impede the timely
satisfaction of the Closing Conditions (as such term is defined in the
document set out in the Schedule hereto) or (iii) adversely affect the
ability of ICI or ICI Alta to perform its obligations under this Amendment
Agreement; or do not require any consent or other action by any Person
under, constitute a default under, or give rise to any right of
termination, cancellation or acceleration of any right or obligation of ICI
or ICI Alta or to a loss of any benefit to which ICI or ICI Alta is
entitled under any provision of any agreement or other instrument binding
upon ICI or ICI Alta, except for such consents or approvals the failure of
which to obtain would not, individually or in the aggregate, reasonably be
expected to (i) have a material adverse effect on the business, financial
condition or results of operations of ICI or ICI Alta, (ii) impede the
timely satisfaction of the Closing Conditions (as such term is defined in
the document set out in the Schedule hereto), or (iii) adversely affect the
ability of ICI or ICI Alta to perform its obligations under this Amendment
Agreement.
3.2 HSCC warrants to ICI and ICI Alta as follows:
(a) that it is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware;
(b) that the execution, delivery and performance by HSCC of this Amendment
Agreement are within its organizational powers and have been duly
authorised by all necessary organizational action on the part of HSCC, and
that this Amendment Agreement constitutes binding obligations of HSCC;
(c) that the execution, delivery and performance by HSCC of this Amendment
Agreement require no action by or in respect of, or filing with, any
Governmental Entity other than compliance with any applicable requirements
of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended;
the 1958 Act against Restraints in Competition, as amended (Germany); the
Law on the Protection of Competition and the Market, Law Xx. 000 xx Xxx 00,
0000 (Xxxxx); and the Federal Law 8884/1994 of June 11, 1994 as amended and
XXXX Resolution xx 00/00 xx Xxxxxx 00, 0000 (Xxxxxx); and any such action
or filing as to which the failure to make or obtain would not, individually
or in the aggregate, reasonably be expected to (i) have a material adverse
effect on the business, financial condition or results of operations of
HSCC, (ii) impede the timely satisfaction of the Closing Conditions or
(iii) adversely affect the ability of HSCC to perform its obligations under
this Amendment Agreement; and
(d) that the execution, delivery and performance by HSCC of this Amendment
Agreement do not and will not violate the certificate of incorporation or
bylaws of HSCC; assuming compliance with the matters referred to in (c)
above, do not violate any applicable law, rule, regulation, judgment,
injunction, order or decree, except for such matters as would not,
individually or in the aggregate, reasonably be expected to (i) have a
material adverse effect on the business, financial condition or results of
operations of HSCC, (ii) impede the timely satisfaction of the Closing
Conditions or (iii) adversely affect the ability of HSCC to perform its
obligations under this Amendment Agreement; or do not require any consent
or other action by any Person under, constitute a default under, or give
rise to any right of termination, cancellation or acceleration of any right
or obligation of HSCC or to a loss of any benefit to which HSCC is entitled
under any provision of any agreement or other instrument binding upon it,
except for (i) such consents or approvals as have been obtained as of the
date of this Amendment Agreement and (ii) such consents or approvals the
failure of which to obtain would not, individually or in the aggregate,
reasonably be expected to (x) have a material adverse effect on the
business, financial condition or results of operations of HSCC, (y) impede
the timely satisfaction of the Closing Conditions (as such term is defined
in the document set out in the Schedule hereto) (z) adversely affect the
ability of HSCC to perform its obligations under this Amendment Agreement.
GENERAL
ASSIGNMENT
4.1 No Party shall nor shall it purport to assign, transfer, charge or
otherwise deal with all or any of its rights under this Amendment Agreement nor
grant, declare, create or dispose of any right or interest in it without the
prior written consent of each of the other Parties. Any purported assignment in
contravention of this clause 4.1 shall be void.
VARIATION
4.2 No variation of this Amendment Agreement shall be valid unless it is in
writing and signed by or on behalf of each of the Parties. The expression
"variation" shall include any variation, supplement, deletion or replacement,
however effected.
ENTIRE AGREEMENT
4.3 This Amendment Agreement sets out the entire agreement and understanding
between the Parties with respect to the amendments of the Option Agreement for
which it provides. This Amendment Agreement supersedes all previous arrangements
and understandings between the Parties with respect to the amendments of the
Option Agreement for which this Amendment Agreement provides, which shall cease
to have any further force or effect.
4.4 Subject to clause 4.6 below, no Party has, and each Party warrants to each
of the other Parties that it has not, entered into this Amendment Agreement in
reliance upon any representation, warranty or undertaking of any other Party
which is not expressly set out or referred to in this Amendment Agreement
(including the Schedule hereto).
4.5 Subject to clause 4.6 below, a Party may claim in contract for breach of
warranty under this Amendment Agreement, but no Party shall have any claim or
remedy under this Amendment Agreement in respect of misrepresentation (whether
negligent or otherwise, and whether made prior to, and/or in, this Amendment
Agreement) or untrue statement made by any other Party.
4.6 None of clauses 4.3, 4.4 or 4.5 above shall exclude any liability for
fraudulent misrepresentation.
COUNTERPARTS
4.7 This Amendment Agreement may be entered into in any number of counterparts
and by the parties to it on separate counterparts, each of which, when executed
and delivered, shall be an original, but all the counterparts shall together
constitute one and the same instrument.
THIRD PARTY RIGHTS
4.8 A person who is not a party to this Amendment Agreement shall have no right
under the Contracts (Rights of Third Parties) Xxx 0000 to enforce any of its
terms.
CONFIDENTIALITY & ANNOUNCEMENTS
4.9 Subject to clause 4.10, each Party shall use (and shall ensure that each
member of its Group shall use) all reasonable endeavours to keep confidential
(and to ensure that its respective officers, employees and agents and
professional advisers keep confidential) any information which relates to the
contents of this Amendment Agreement and/or the negotiations relating to this
Amendment Agreement (but excluding any information relating to the contents of
the Option Agreement and/or negotiations relating to the Option Agreement, which
will be governed by Section 8.01 of the Option Agreement) and shall not (and
shall ensure that no member of its Group shall), without the prior written
approval of the other Parties (such approval not to be unreasonably withheld or
delayed), make or issue any formal public announcement or press release in
connection with the signature or contents of this Amendment Agreement.
4.10 The obligations set out in clause 4.9 above do not apply to the disclosure
of information or, as the case may be, the making or issue of any public
announcement or press release:
(a) if and to the extent it is required by law;
(b) if and to the extent it is required by any securities exchange or
regulatory or governmental body to which that Party or any member of its
Group is subject or submits, wherever situated, whether or not the
requirement for information has the force of law;
(c) on a "need to know" basis to a company which is a member of the disclosing
Party's Group, where that disclosure is for a purpose reasonably incidental
to this Amendment Agreement (in which event the disclosing Party shall
procure that the relevant member of its Group complies with the provisions
of clause 5.9 in respect of the information so disclosed);
(d) to any tax authority to the extent reasonably required for the purposes of
the tax affairs of the Party concerned or any member of its Group;
(e) if and to the extent the information concerned has come into the public
domain, other than as a result of a breach of clause 5.9 above by that
Party or any member of its Group; or
(f) if and to the extent that the other Parties have given prior written
consent to the disclosure, such consent not to be unreasonably withheld or
delayed.
If a Party has an obligation to make or issue any announcement pursuant to
paragraph (a) or (b) above, the relevant Party shall give the other Parties
every reasonable
opportunity to comment on any announcement or release before it is made or
issued (provided that this does not have the effect of preventing the Party
making the announcement or release from complying with its legal and/or stock
exchange obligations).
4.11 No failure or delay by any Party in exercising any right or remedy provided
by law under or pursuant to this Amendment Agreement shall impair such right or
remedy or operate or be construed as a waiver or variation of it or preclude its
exercise at any subsequent time and no single or partial exercise of any such
right or remedy shall preclude any other or further exercise of it or the
exercise of any other right or remedy.
4.12 If any provision of this Amendment Agreement is held by a Court or other
competent authority to be invalid or unenforceable in whole or in part, 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 Amendment Agreement, and
the other provisions of this Amendment Agreement and the remainder of the
affected provision shall continue to be valid.
GOVERNING LAW
4.13 This Amendment Agreement shall be governed by, and construed in all
respects in accordance with, the laws of England.
JURISDICTION
4.14 The parties hereto irrevocably and unconditionally submit to the exclusive
jurisdiction of any state or federal court located in the State of Delaware, and
any appellate court with jurisdiction to review decisions of any such court, in
any action or proceeding brought by any of the parties hereto arising out of or
relating to this Amendment Agreement, and each of the parties hereto irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such court. Notwithstanding the
foregoing, nothing in this Amendment Agreement shall affect any right that any
of the parties may have to (i) bring any action or proceeding relating to this
Amendment Agreement in any court that has jurisdiction by reason of a case
pending under Title 11 of the U.S. Code or (ii) seek recognition or enforcement
of any judgment in other jurisdictions by suit on the judgment or in the manner
provided by law. Each of the parties hereby irrevocably waives, to the fullest
extent permitted by law, any objection that it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding in any such court or
that any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum. Process in any such suit, action or proceeding
may be served on any party anywhere in the world, whether within or without the
jurisdiction of any such court.
IN WITNESS whereof this Amendment Agreement has been signed by and on behalf of
the Parties on the day and year first before written.
SIGNED on behalf )
of IMPERIAL CHEMICAL )
INDUSTRIES PLC by )
as its duly )
authorised attorney )
SIGNED on behalf )
of ICI ALTA INC. by )
as its duly )
authorised attorney )
SIGNED on behalf of )
HUNTSMAN SPECIALTY )
CHEMICALS CORPORATION, )
a company incorporated in Delaware, )
by , being )
a person who, in accordance )
with the laws of that territory, is )
acting under the authority of )
that company )
SCHEDULE
AMENDED FORM OF THE OPTION AGREEMENT
