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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 S.A., 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 terms 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 for
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 144 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) if 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.
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(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 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. Add provisions if applicable]
[4. Piggyback Rights. Add provisions if applicable]
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
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underwriters, if any, shall reasonably object in light of the
requirements of the Securities Act or any other applicable laws or
regulations;
(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 the proviso 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 Commission 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
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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 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) provide copies of such document 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) deliver 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 Registrable 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
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agreement(s) for consent to sell Registrable Securities in such
jurisdiction unless Pechiney agrees to do so;
(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;
(1) upon the occurrence of any event contemplated by paragraph
(d)(6) 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 document 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
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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 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.
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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.
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](l) 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](c) 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](l) 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 qualifications of the Registrable Securities and determination of
their eligibility for investment under the laws of such jurisdictions as the
managing 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
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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 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
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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 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
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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 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
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hereof. The Company has not previously entered into any agreement with respect
to its securities granting any registration rights to any Person.
(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 courier 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.
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(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.
(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:
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[Title]
PECHINEY S.A.
By:
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[Title]
