EXHIBIT (d)(1)
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AGREEMENT AND PLAN OF MERGER
Among
REXAM PLC,
REXAM ACQUISITION SUBSIDIARY INC.,
and
AMERICAN NATIONAL CAN GROUP, INC.
Dated as of March 31, 2000
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TABLE OF CONTENTS
Page
ARTICLE I THE OFFER AND THE MERGER
SECTION 1.01. The Offer.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
SECTION 1.02. Company Actions.. . . . . . . . . . . . . . . . . . . . . . . . . . .4
SECTION 1.03. The Merger. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
SECTION 1.04. Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
SECTION 1.05. Effective Time. . . . . . . . . . . . . . . . . . . . . . . . . . . .6
SECTION 1.06. Effects of the Merger.. . . . . . . . . . . . . . . . . . . . . . . .6
SECTION 1.07. Certificate of Incorporation and By-laws. . . . . . . . . . . . . . .6
SECTION 1.08. Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
SECTION 1.09. Officers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
ARTICLE II EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT
CORPORATIONS;EXCHANGE OF CERTIFICATES
SECTION 2.01. Effect on Capital Stock . . . . . . . . . . . . . . . . . . . . . . .7
SECTION 2.02. Exchange of Certificates. . . . . . . . . . . . . . . . . . . . . . .8
ARTICLE III REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties
of the Company . . . . . . . . . . . . . . . . . . . . . . . . . .10
SECTION 3.02. Representations and Warranties
of Rexam and Sub. . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE IV COVENANTS RELATING TO CONDUCT OF BUSINESS
SECTION 4.01. Conduct of Business . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 4.02. No Solicitation . . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE V ADDITIONAL AGREEMENTS
SECTION 5.01. Preparation of the Proxy Statement;
Company Stockholders Meeting; Rexam
Shareholders Meeting; Offering
Circular. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 5.02. Access to Information; Confidentiality. . . . . . . . . . . . . . . 43
SECTION 5.03. Commercially Reasonable Efforts;
Notification. . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 5.04. Company Stock Options and Other
Equity Based Awards . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 5.05. Indemnification, Exculpation and
Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 5.06. Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 5.07. Information Supplied. . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 5.08. Benefits Matters. . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 5.09. Option to Purchase Identified Assets. . . . . . . . . . . . . . . . 53
SECTION 5.10. Public Announcements. . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 5.11. Stockholder Agreement Legend. . . . . . . . . . . . . . . . . . . . 53
SECTION 5.12. Directors.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE VI CONDITIONS PRECEDENT
SECTION 6.01. Conditions to Each Party's Obligation
to Effect the Merger. . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE VII TERMINATION, AMENDMENT AND WAIVER
SECTION 7.01. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 7.02. Effect of Termination . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 7.03. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 7.04. Extension; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . 58
ARTICLE VIII GENERAL PROVISIONS
SECTION 8.01. Nonsurvival of Representations
and Warranties. . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 8.02. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 8.03. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 8.04. Interpretation. . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 8.05. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 8.06. Entire Agreement; No Third-Party
Beneficiaries . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 8.07. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 8.08. Assignment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 8.09. Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 8.10. Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
EXHIBIT A - Conditions of the Offer
AGREEMENT AND PLAN OF MERGER dated as of March 31, 2000
(this "AGREEMENT"), by and among REXAM PLC, an English public
limited company ("REXAM"), REXAM ACQUISITION SUBSIDIARY INC., a
Delaware corporation and a wholly owned direct or indirect
subsidiary of Rexam ("SUB"), and AMERICAN NATIONAL CAN GROUP,
INC., a Delaware corporation (the "COMPANY").
WHEREAS the respective Boards of Directors of Rexam, Sub and the
Company have approved the acquisition of the Company by Rexam on the terms
and subject to the conditions set forth in this Agreement;
WHEREAS, in furtherance of such acquisition, Rexam proposes to
cause Sub to make a tender offer (as it may be amended from time to time as
permitted under this Agreement, the "OFFER") to purchase all the outstanding
shares of common stock, par value $0.01 per share, of the Company (the
"COMPANY COMMON STOCK"), at a price per share of Company Common Stock of
$18.00, net to the seller in cash, without interest on the terms and subject
to the conditions set forth in this Agreement;
WHEREAS the respective Boards of Directors of Rexam, Sub and the
Company have approved the merger (the "MERGER") of Sub into the Company, on
the terms and subject to the conditions set forth in this Agreement, whereby
each issued share of Company Common Stock not owned by Rexam, Sub or the
Company, other than the Appraisal Shares (as defined in Section 2.01(d),
shall be converted into the right to receive the price per share paid
pursuant to the Offer;
WHEREAS simultaneously with the execution and delivery of this
Agreement, Rexam and the principal stockholder of the Company (the "SPECIFIED
STOCKHOLDER") are entering into a stockholders agreement (the "STOCKHOLDERS
AGREEMENT") pursuant to which the Specified Stockholder is agreeing to take
certain actions in furtherance of the Offer and the Merger;
WHEREAS Rexam, Sub and the Company desire to make certain
representations, warranties, covenants and
agreements in connection with the Offer and the Merger and also to prescribe
various conditions to the Offer and the Merger;
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements set forth herein, the
parties hereto agree as follows:
ARTICLE I
THE OFFER AND THE MERGER
SECTION 1.01. THE OFFER. (a) Subject to the conditions of this
Agreement, as promptly as practicable, but in no event later than five
business days after the date of the public announcement of this Agreement,
Sub shall, and Rexam shall cause Sub to, commence the Offer within the
meaning of the applicable rules and regulations of the Securities and
Exchange Commission (the "SEC"). The obligations of Sub to, and of Rexam to
cause Sub to, accept for payment, and pay for, any shares of Company Common
Stock tendered pursuant to the Offer are subject to the conditions set forth
in Exhibit A. The initial expiration date of the Offer shall be the 20th
business day following the commencement of the Offer. Sub expressly reserves
the right to waive any condition to the Offer or modify the terms of the
Offer, except that, without the consent of the Company, Sub shall not (i)
reduce the number of shares of Company Common Stock subject to the Offer,
(ii) reduce the price per share of Company Common Stock to be paid pursuant
to the Offer, (iii) waive the Minimum Tender Condition (as defined in Exhibit
A), add to the conditions set forth in Exhibit A or modify any condition set
forth in Exhibit A in any manner adverse to the holders of Company Common
Stock, (iv) except as provided below in this Section 1.01(a), extend the
Offer, (v) change the form of consideration payable in the Offer or (vi)
otherwise amend the Offer in any manner adverse to the holders of Company
Common Stock. Notwithstanding the foregoing, Sub may, without the consent of
the Company, (A) extend the Offer, for one or more periods of time that Sub
reasonably believes are necessary to cause the conditions of the Offer set
forth hereto to be satisfied, if at the scheduled expiration date of the
Offer any of the conditions to Sub's obligation to purchase shares of Company
Common Stock are not satisfied, until such time as such conditions are
satisfied or waived or (B) extend the Offer
for any period required by any rule, regulation, interpretation or position
of the SEC or the staff thereof applicable to the Offer. Rexam and Sub agree
that if all of the conditions to the Offer are not satisfied on any scheduled
expiration date of the Offer then Sub shall extend the Offer for one or more
periods of time that Sub reasonably believes are necessary to cause the
conditions of the Offer set forth hereto to be satisfied from time to time
until such conditions are satisfied or waived, provided that Sub shall not be
required to extend the Offer beyond October 25, 2000. Sub may, without the
consent of the Company, elect to provide a subsequent offering period for the
Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934,
as amended (the "EXCHANGE ACT") following its acceptance for payment of
shares of Company Common Stock in the Offer. On the terms and subject to the
conditions of the Offer and this Agreement, Sub shall, and Rexam shall cause
Sub to, pay for all shares of Company Common Stock validly tendered and not
withdrawn pursuant to the Offer that Sub becomes obligated to purchase
pursuant to the Offer as soon as practicable after the expiration of the
Offer.
(b) On the date of commencement of the Offer, Rexam and Sub shall
file with the SEC a Tender Offer Statement on Schedule TO with respect to the
Offer, which shall contain an offer to purchase and a related letter of
transmittal and summary advertisement (such Schedule TO and the documents
included therein pursuant to which the Offer will be made, together with any
supplements or amendments thereto, the "OFFER DOCUMENTS"). Rexam and Sub
agree that the Offer Documents shall comply as to form in all material
respects with the Exchange Act, and the rules and regulations promulgated
thereunder and the Offer Documents, on the date first published, sent or
given to the Company's stockholders, shall not contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that no
representation or warranty is made by Rexam or Sub with respect to
information supplied by the Company or any of its stockholders specifically
for inclusion or incorporation by reference in the Offer Documents. Each of
Rexam, Sub and the Company shall promptly correct any information provided by
it for use in the Offer Documents if and to the extent
that such information shall have become false or misleading in any material
respect, and each of Rexam and Sub shall take all steps necessary to amend or
supplement the Offer Documents and to cause the Offer Documents as so amended
or supplemented to be filed with the SEC and the Offer Documents as so
amended or supplemented to be disseminated to the Company's stockholders, in
each case as and to the extent required by applicable Federal securities
laws. The Company and its counsel shall be given reasonable opportunity to
review and comment upon the Offer Documents prior to their filing with the
SEC or dissemination to the stockholders of the Company. Rexam and Sub shall
provide the Company and its counsel in writing with any written comments (and
orally, any oral comments), Rexam, Sub or their counsel may receive from the
SEC or its staff with respect to the Offer Documents promptly after the
receipt of such comments and shall consult with the Company and its counsel
prior to responding to any such comments.
(c) Rexam shall provide or cause to be provided to Sub on a timely
basis the funds necessary to purchase any shares of Company Common Stock that
Sub becomes obligated to purchase pursuant to the Offer.
SECTION 1.02. COMPANY ACTIONS. (a) The Company hereby approves
of and consents to the Offer, the Merger and the other transactions
contemplated by this Agreement.
(b) On the date the Offer Documents are filed with the SEC, the
Company shall file with the SEC a Solicitation/Recommendation Statement on
Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, as amended or
supplemented from time to time, the "SCHEDULE 14D-9") describing the
recommendations referred to in Section 3.01(d) and shall mail the Schedule
14D-9 to the holders of Company Common Stock. The Schedule 14D-9 shall
comply as to form in all material respects with the requirements of the
Exchange Act and the rules and regulations promulgated thereunder and, on the
date filed with the SEC and on the date first published, sent or given to the
Company's stockholders, shall not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that no
representation or warranty is made by the Company with
respect to information supplied by Rexam or Sub specifically for inclusion in
the Schedule 14D-9. Each of the Company, Rexam and Sub shall promptly
correct any information provided by it for use in the Schedule 14D-9 if and
to the extent that such information shall have become false or misleading in
any material respect, and the Company shall take all steps necessary to amend
or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so
amended or supplemented to be filed with the SEC and disseminated to the
Company's stockholders, in each case as and to the extent required by
applicable Federal securities laws. Rexam and its counsel shall be given
reasonable opportunity to review and comment upon the Schedule 14D-9 prior to
its filing with the SEC or dissemination to stockholders of the Company. The
Company shall provide Rexam and its counsel in writing with any written
comments (and orally, any oral comments) the Company or its counsel may
receive from the SEC or its staff with respect to the Schedule 14D-9 promptly
after the receipt of such comments and shall consult with Rexam and its
counsel prior to responding to such comments.
(c) In connection with the Offer and the Merger, the Company shall
cause its transfer agent to furnish Sub promptly with mailing labels
containing the names and addresses of the record holders of Company Common
Stock as of a recent date and of those persons becoming record holders
subsequent to such date, together with copies of all lists of stockholders,
security position listings and computer files and all other information in
the Company's possession or control regarding the beneficial owners of
Company Common Stock, and shall furnish to Sub such information and
assistance (including updated lists of stockholders, security position
listings and computer files) as Rexam may reasonably request in communicating
the Offer to the Company's stockholders. Subject to the requirements of
applicable law, and except for such steps as are necessary to disseminate the
Offer Documents and any other documents necessary to consummate the Offer,
the Merger and the other transactions contemplated by this Agreement and the
Stockholders Agreement, Rexam and Sub shall hold in confidence the
information contained in any such labels, listings and files, shall use such
information only in connection with the Offer and the Merger and, if this
Agreement shall be terminated, shall, upon request, deliver to the Company
all copies of such information then in their possession.
SECTION 1.03. THE MERGER. Upon the terms and subject to the
conditions set forth in this Agreement, and
in accordance with the Delaware General Corporation Law (the "DGCL"), Sub
shall be merged with and into the Company at the Effective Time (as defined
in Section 1.05). At the Effective Time, the separate corporate existence of
Sub shall cease and the Company shall continue as the surviving corporation
(the "SURVIVING CORPORATION") and shall succeed to and assume all the rights
and obligations of Sub in accordance with the DGCL.
SECTION 1.04. CLOSING. Upon the terms and subject to the
conditions set forth in this Agreement, the closing of the Merger (the
"CLOSING") shall take place at 11:00 a.m., New York time, on the second
business day after the satisfaction or (to the extent permitted by applicable
law) waiver of the conditions set forth in Article VI (other than those that
by their terms cannot be satisfied until the time of the Closing but subject
to the fulfillment or waiver of such conditions), at the offices of Cravath,
Swaine & Xxxxx, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other
time, date or place agreed to in writing by Rexam and the Company; PROVIDED
that if all the conditions set forth in Article VI shall not have been
satisfied or (to the extent permitted by applicable law) waived on such
second business day, then the Closing shall take place on the first business
day on which all such conditions shall have been satisfied or (to the extent
permitted by applicable law) waived. The date on which the Closing occurs is
referred to in this Agreement as the "CLOSING DATE".
SECTION 1.05. EFFECTIVE TIME. Upon the terms and subject to the
conditions set forth in this Agreement, as soon as practicable on or after
the Closing Date, a certificate of merger or other appropriate documents (in
any such case, the "CERTIFICATE OF MERGER") shall be duly prepared, executed
and acknowledged by the parties in accordance with the relevant provisions of
the DGCL and filed with the Secretary of State of the State of Delaware. The
Merger shall become effective upon the filing of the Certificate of Merger
with the Secretary of State of the State of Delaware or at such subsequent
time or date as Rexam and the Company shall agree and specify in the
Certificate of Merger. The time at which the Merger becomes effective is
referred to in this Agreement as the "EFFECTIVE TIME".
SECTION 1.06. EFFECTS OF THE MERGER. The Merger
shall have the effects set forth in Section 259 of the DGCL.
SECTION 1.07. CERTIFICATE OF INCORPORATION AND BY-LAWS. (a) The
Certificate of Incorporation of the Company, as in effect immediately prior
to the Effective Time, shall be the Certificate of Incorporation of the
Surviving Corporation until thereafter changed or amended as provided therein
or by applicable law.
(b) The By-laws of the Company as in effect immediately prior to
the Effective Time shall be the By-laws of the Surviving Corporation until
thereafter changed or amended as provided therein or by applicable law.
SECTION 1.08. DIRECTORS. The directors of Sub immediately prior
to the Effective Time shall be the directors of the Surviving Corporation
until the earlier of their resignation or removal or until their respective
successors are duly elected and qualified, as the case may be.
SECTION 1.09. OFFICERS. The officers of the Company immediately
prior to the Effective Time shall be the officers of the Surviving
Corporation until the earlier of their resignation or removal or until their
respective successors are duly elected and qualified, as the case may be.
ARTICLE II
EFFECT OF THE MERGER ON THE CAPITAL STOCK
OF THE CONSTITUENT CORPORATIONS;
EXCHANGE OF CERTIFICATES
SECTION 2.01. EFFECT ON CAPITAL STOCK. At the Effective Time, by
virtue of the Merger and without any action on the part of the holder of any
shares of capital stock of the Company, Rexam or Sub:
(a) CAPITAL STOCK OF SUB. Each issued and outstanding share of
common stock of Sub shall be converted into and become one fully paid and
nonassessable share of common stock of the Surviving Corporation.
(b) CANCELATION OF TREASURY STOCK AND REXAM-OWNED STOCK. Each share
of Company Common Stock that is owned by the Company (as treasury stock),
Rexam or Sub immediately prior to the Effective Time shall
automatically be canceled and retired and shall cease to exist and no
consideration shall be delivered in exchange therefor. Each share of
Company Common Stock that is owned by any subsidiary of Rexam (other
than Sub) or the Company shall remain outstanding without change.
(c) CONVERSION OF COMPANY COMMON STOCK. Each share of Company Common
Stock issued and outstanding immediately prior to the Effective Time (other
than shares to be canceled or remain outstanding in accordance with
Section 2.01(b) and the Appraisal Shares (as defined in Section 2.01(d))
shall be converted into the right to receive from the Surviving Corporation
in cash, without interest, the price per share paid in the Offer (the
"MERGER CONSIDERATION"). At the Effective Time all such shares shall no
longer be outstanding and shall automatically be canceled and shall cease
to exist, and each holder of a certificate that immediately prior to the
Effective Time represented any such shares (a "CERTIFICATE") shall cease to
have any rights with respect thereto, except the right to receive the
Merger Consideration.
(d) APPRAISAL RIGHTS. Notwithstanding anything in this Agreement to
the contrary, shares (the "APPRAISAL SHARES") of Company Common Stock
issued and outstanding immediately prior to the Effective Time that are
held by any holder who is entitled to demand and properly demands appraisal
of such shares pursuant to, and who complies in all respects with, the
provisions of Section 262 of the DGCL ("SECTION 262") shall not be
converted into the right to receive the Merger Consideration as provided in
Section 2.01(c), but instead such holder shall be entitled to payment of
the fair value of such shares in accordance with the provisions of
Section 262. At the Effective Time, all Appraisal Shares shall no longer
be outstanding and shall automatically be canceled and shall cease to
exist, and each holder of Appraisal Shares shall cease to have any rights
with respect thereto, except the right to receive the fair value of such
shares in accordance with the provisions of Section 262. Notwithstanding
the foregoing, if any such holder shall fail to perfect or otherwise shall
waive, withdraw or lose the right to appraisal under Section 262 or a
court of competent jurisdiction shall determine that such holder is not
entitled to the relief provided by Section 262, then the right of such
holder to be paid the fair value of such holder's Appraisal Shares under
Section 262 shall cease and such Appraisal Shares shall be deemed to have
been converted at the Effective Time into, and shall have become, the right
to receive the Merger Consideration as provided in Section 2.01(c). The
Company shall serve prompt notice to Rexam of any demands for appraisal of
any shares of Company Common Stock, and Rexam shall have the right to
participate in and direct all negotiations and proceedings with respect to
such demands. Prior to the Effective Time, the Company shall not, without
the prior written consent of Rexam, make any payment with respect to, or
settle or offer to settle, any such demands, or agree to do any of the
foregoing.
SECTION 2.02. EXCHANGE OF CERTIFICATES. (a) PAYING AGENT. Prior
to the Effective Time Rexam shall designate, or shall cause to be designated,
a bank or trust company reasonably acceptable to the Company to act as agent
for the payment of the Merger Consideration upon surrender of Certificates
(the "PAYING AGENT"), and, from time to time after the Effective Time, Rexam
shall provide, or cause the Surviving Corporation to provide, to the Paying
Agent funds in amounts and at the times necessary for the payment of the
Merger Consideration pursuant to Section 2.01(c) upon surrender of
Certificates, it being understood that any and all interest or income earned
on funds made available to the Paying Agent pursuant to this Agreement shall
be turned over to Rexam.
(b) EXCHANGE PROCEDURE. As soon as reasonably practicable after
the Effective Time, the Paying Agent shall mail to each holder of record of a
Certificate (i) a form of letter of transmittal (which shall specify that
delivery shall be effected, and risk of loss and title to the Certificates
held by such person shall pass, only upon proper delivery of the Certificates
to the Paying Agent and shall be in customary form and have such other
provisions as Rexam may reasonably specify) and (ii) instructions for use in
effecting the surrender of the Certificates in exchange for the Merger
Consideration. Upon surrender of a Certificate for cancelation to the Paying
Agent or to such other agent or agents as may be appointed by Rexam, together
with such letter of transmittal, duly completed and validly executed, and
such other documents as may reasonably be required by the Paying Agent, the
holder of such Certificate
shall be entitled to receive in exchange therefor the amount of cash into
which the shares formerly represented by such Certificate shall have been
converted pursuant to Section 2.01(c) into the right to receive, and the
Certificate so surrendered shall forthwith be canceled. In the event of a
transfer of ownership of Company Common Stock that is not registered in the
stock transfer books of the Company, the proper amount of cash may be paid in
exchange therefor to a person other than the person in whose name the
Certificate so surrendered is registered if such Certificate shall be
properly endorsed or otherwise be in proper form for transfer and the person
requesting such payment shall pay any transfer or other taxes required by
reason of the payment to a person other than the registered holder of such
Certificate or establish to the satisfaction of Rexam that such tax has been
paid or is not applicable. No interest shall be paid or shall accrue on the
cash payable upon surrender of any Certificate.
(c) NO FURTHER OWNERSHIP RIGHTS IN COMPANY COMMON STOCK. All cash
paid upon the surrender of a Certificate in accordance with the terms of this
Article II shall be deemed to have been paid in full satisfaction of all
rights pertaining to the shares of Company Common Stock formerly represented
by such Certificate. At the close of business on the day on which the
Effective Time occurs the stock transfer books of the Company shall be
closed, and there shall be no further registration of transfers on the stock
transfer books of the Surviving Corporation of the shares of Company Common
Stock that were outstanding immediately prior to the Effective Time. If,
after the Effective Time, Certificates are presented to the Surviving
Corporation or the Paying Agent for transfer or any other reason, they shall
be canceled and exchanged as provided in this Article II.
(d) NO LIABILITY. None of Rexam, Sub, the Company or the Paying
Agent shall be liable to any person in respect of any cash delivered to a
public official pursuant to any applicable abandoned property, escheat or
similar law. If any certificates shall not have been surrendered prior to two
years after the Effective Time (or immediately prior to such earlier date on
which any Merger Consideration would otherwise escheat to or became the
property of any Governmental Entity (as defined in Section 3.01(d)), any such
Merger Consideration in respect thereof shall, to the
extent permitted by applicable law, become the property of the Surviving
Corporation, free and clear of all claims or interest of any person
previously entitled thereto.
(e) LOST CERTIFICATES. If any Certificate shall have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the
person claiming such Certificate to be lost, stolen or destroyed and, if
required by the Surviving Corporation, the posting by such person of a bond
in such reasonable amount as the Surviving Corporation may direct as
indemnity against any claim that may be made against it with respect to such
Certificate, the Paying Agent shall pay in respect of such lost, stolen or
destroyed Certificate the Merger Consideration.
(f) WITHHOLDING RIGHTS. Rexam, the Surviving Corporation or the
Paying Agent shall be entitled to deduct and withhold from the consideration
otherwise payable pursuant to this Agreement to any holder of shares of
Company Common Stock such amounts as Rexam, the Surviving Corporation or the
Paying Agent is required to deduct and withhold with respect to the making of
such payment under the Internal Revenue Code of 1986, as amended (the
"CODE"), or any provision of state, local or foreign tax law. To the extent
that amounts are so withheld and paid over to the appropriate taxing
authority by Rexam, the Surviving Corporation or the Paying Agent, such
withheld amounts shall be treated for all purposes of this Agreement as
having been paid to the holder of the shares of Company Common Stock in
respect of which such deduction and withholding was made by Rexam, the
Surviving Corporation or the Paying Agent.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Except as set forth on the disclosure schedule (with specific reference to
the Section or Subsection of this Agreement to which the information stated
in such disclosure relates and such other Sections or Subsections of this
Agreement to the extent a matter is disclosed in such a way as to make its
relevance to the information called for by such other Section or Subsection
readily apparent) delivered by the Company to Rexam prior to the execution of
this Agreement (the "COMPANY DISCLOSURE SCHEDULE"), the Company represents
and warrants to Rexam and Sub as follows:
(a) ORGANIZATION, STANDING AND POWER. Each of the Company and its
Significant Subsidiaries (as defined in Section 8.03) (i) is duly organized,
validly existing and in good standing under the laws of the jurisdiction of
its organization, (ii) has all requisite corporate, company or partnership
power and authority to carry on its business as now being conducted and (iii)
is duly qualified or licensed to do business and is in good standing in each
jurisdiction in which the nature of its business or the ownership, leasing or
operation of its properties makes such qualification or licensing necessary,
other than (except in the case of clause (i) above with respect to the
Company) where the failure to be so organized, existing, qualified or
licensed or in good standing, individually and in the aggregate, would not
reasonably be expected to have a material adverse effect (as defined in
Section 8.03). The Company has made available to Rexam true and complete
copies of its Certificate of Incorporation and By-laws, in each case, as
amended to the date of this Agreement.
(b) SIGNIFICANT SUBSIDIARIES. Section 3.01(b) of the Company
Disclosure Schedule lists each Significant Subsidiary of the Company. All
the outstanding shares of capital stock or other equity or voting interests
of each Significant Subsidiary of the Company are owned by the Company, by
another wholly owned subsidiary of the Company or by the Company and another
wholly owned subsidiary of the Company, free and clear of all pledges,
claims, liens, charges, encumbrances and security interests of any kind or
nature whatsoever (collectively, "LIENS"), and are duly authorized, validly
issued, fully paid and nonassessable. Except for the capital stock of, or
other equity or voting interests in, its Significant Subsidiaries or its
wholly owned subsidiaries, the Company does not own, directly or indirectly,
any capital stock of, or other equity or voting interests in, any
corporation, partnership, joint venture, association or other entity.
(c) CAPITAL STRUCTURE. The authorized capital stock of the
Company consists of 1,000,000,000 shares of Company Common Stock and
25,000,000 shares of preferred stock, par value $0.01 per share (the "COMPANY
PREFERRED STOCK"). As of the close of business on March 29, 2000, (i)
55,000,000 shares of Company Common Stock (excluding treasury shares) were
issued and outstanding, (ii) no shares of Company Common Stock were held by
the Company in its
treasury, (iii) 8,450,000 shares of Company Common Stock were reserved for
issuance pursuant to the Company's Founders' Equity Plan, Long-Term Stock
Incentive Plan, Directors' Stock Plan, Directors' Pension Conversion Plan and
Stock Compensation Conversion Plan (such plans, collectively, the "COMPANY
STOCK PLANS") (of which 3,543,216 shares were subject to outstanding stock
options to purchase Company Common Stock granted under the Company Stock
Plans (collectively, the "Company Stock Options")) and (iv) no shares of
Company Preferred Stock were issued and outstanding or were held by the
Company in its treasury. There are outstanding 7,944 deferred stock units
under the Directors' Stock Plan, 42,021 shares under the Directors' Pension
Conversion Plan, 396,456 conversion shares under the Stock Compensation Plan
and 65,873 performance and restricted shares under the 1999 Long-Term
Incentive Plan and otherwise there are no outstanding stock appreciation
rights or other similar rights. No shares of Company Common Stock are owned
by any subsidiary of the Company. The Company has delivered to Rexam a true,
correct and complete list, as of the close of business on March 29, 2000, of
all outstanding Company Stock Options (other than the 442,600 Company Stock
Options granted pursuant to the Company's Founders' Equity Plan to the
employees of the Company and its subsidiaries on July 28, 1999, with a per
share exercise price of $17.00) and all other rights to purchase or receive
Company Common Stock granted under the Company Stock Plans, the number of
shares subject to each such Company Stock Option, the grant dates and
exercise prices of each such Stock Option and the names of the holder
thereof. Except as set forth above, as of the close of business on March 29,
2000, no shares of capital stock of, or other equity or voting interests in,
the Company, or options, warrants or other rights to acquire any such stock
or securities were issued, reserved for issuance or outstanding. During the
period from March 29, 2000 to the date of this Agreement, (A) there have been
no issuances by the Company of shares of capital stock of, or other equity or
voting interests in, the Company other than issuances of shares of Company
Common Stock pursuant to the exercise of Company Stock Options outstanding on
such date as required by their terms as in effect on the date of this
Agreement and (B) there have been no issuances by the Company of options,
warrants or other rights to acquire shares of capital stock or other equity
or voting interests from the Company. All outstanding shares of capital
stock of the Company are, and all shares that may be issued pursuant to the
Company Stock Plans will be when issued in accordance with the terms thereof,
duly authorized, validly issued, fully paid and nonassessable and
not subject to preemptive rights. There are no bonds, debentures, notes or
other indebtedness of the Company or any of its subsidiaries, and no
securities or other instruments or obligations of the Company or any of its
subsidiaries the value of which is in any way based upon or derived from any
capital or voting stock of the Company, having the right to vote (or
convertible into, or exchangeable for, securities having the right to vote)
on any matters on which stockholders of the Company may vote. Except as set
forth above and except as specifically permitted under Section 4.01(a), there
are no Contracts (as defined in Section 3.01(d)) of any kind to which the
Company or any of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound, obligating the Company or any of its
subsidiaries to issue, deliver or sell, or cause to be issued, delivered or
sold, additional shares of capital stock of, or other equity or voting
interests in, or securities convertible into, or exchangeable or exercisable
for, shares of capital stock of, or other equity or voting interests in, the
Company or any of its subsidiaries or obligating the Company or any of its
subsidiaries to issue, grant, extend or enter into any such security, option,
warrant, call, right or Contract. There are no outstanding contractual
obligations of the Company or any of its subsidiaries to (x) repurchase,
redeem or otherwise acquire any shares of capital stock of, or other equity
or voting interests in, the Company or any of its subsidiaries or (y) vote or
dispose of any shares of the capital stock of, or other equity or voting
interests in, any of its subsidiaries. To the knowledge of the Company as of
the date of this Agreement, there are no irrevocable proxies and no voting
agreements with respect to any shares of the capital stock or other voting
securities of the Company or any of its subsidiaries, other than pursuant to
the Stockholders Agreement.
(d) AUTHORITY; NONCONTRAVENTION. The Company has the requisite
corporate power and authority to execute and deliver this Agreement and,
subject only to, if required by law, approval of the Merger by an affirmative
vote of the holders of a majority of the outstanding shares of the Company
Common Stock (the "COMPANY STOCKHOLDER APPROVAL") to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of the Company, subject, in the case
of this Agreement, only to the Company Stockholder Approval if such approval
is required by law and no other corporate proceedings on the part of the
Company are necessary to approve this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Company and constitutes a valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms,
subject to laws concerning bankruptcy and creditors' rights. The Board of
Directors of the Company, at a meeting duly called and held, duly and
unanimously by all those present, adopted resolutions that are still in full
force and effect as of the date hereof, (i) approving and declaring advisable
the Offer, the Merger, this Agreement and the transactions contemplated
hereby and thereby, (ii) declaring that it is in the best interests of the
Company's stockholders that the Company enter into this Agreement and
consummate the Offer and the Merger on the terms and subject to the
conditions set forth in this Agreement, (iii) recommending that the Company's
stockholders accept the Offer, tender their shares pursuant to the Offer and
adopt this Agreement (if required by applicable law), (iv) approving the
acquisition of the shares of the Company Common Stock by Sub pursuant to the
Offer and the other transactions contemplated by this Agreement and (v)
approving the Stockholders Agreement for purposes of Section 203 of the DGCL.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby and compliance with the provisions hereof do
not and will not conflict with, or result in any violation or breach of, or
default (with or without notice or lapse of time, or both) under, or give
rise to a right of, or result in, termination, cancelation or acceleration of
any obligation or to loss of a material benefit under, or result in the
creation of any Lien in or upon any of the properties or assets of the
Company or any of its subsidiaries under, or give rise to any increased,
additional, accelerated or guaranteed rights or entitlements under, any
provision of (1) the Certificate of Incorporation or By-laws of the Company
or the certificate of incorporation or by-laws (or similar organizational
documents) of any of its subsidiaries, (2) any loan or credit agreement,
bond, debenture, note, mortgage, indenture, guarantee, lease or other
contract, commitment, agreement, instrument, arrangement, understanding,
obligation, undertaking, permit, concession, franchise or license, whether
oral or written (each, including all amendments thereto, a "CONTRACT"), to
which the Company or any of its subsidiaries is a party or any of their
respective properties or assets is subject or (3) subject to the governmental
filings and other matters referred to in the following sentence, any (A)
statute, law, ordinance, rule or regulation or (B) judgment, order or decree,
in each case applicable to the Company or any of its subsidiaries or their
respective properties or assets, other than, in the case of clauses (2) and
(3), any such conflicts, violations, breaches, defaults, rights, losses,
Liens or entitlements that, individually and in the aggregate, would not
reasonably be expected to have a material adverse effect or to prevent or
materially impede or delay the consummation of the Offer, the Merger or the
other transactions contemplated by this Agreement. No consent, approval,
order or authorization of, or registration, declaration or filing with, any
domestic or foreign (whether national, federal, state, provincial, local or
otherwise) government or any court, administrative agency or commission or
other governmental or regulatory authority or agency, domestic, foreign or
supranational (a "GOVERNMENTAL ENTITY"), is required by the Company or any of
its subsidiaries in connection with the execution and delivery of this
Agreement by the Company or the consummation by the Company of the
transactions contemplated hereby or compliance with the provisions hereof,
except for (1) the filing of a premerger notification and report form by the
Company under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended (the "HSR ACT") or the anti-competition laws or regulations of the
European Union or any foreign jurisdiction in which the Company or Rexam
(directly or through subsidiaries, in each case) has material assets or
conducts material operations, or any other applicable competition, merger
control, antitrust or similar laws or regulations, (2) the filing with the
SEC of (A) the Schedule 14D-9, (B) a proxy statement or information statement
relating to the Company Stockholder Approval if such approval is required by
law (as amended or supplemented from time to time, the "PROXY STATEMENT") and
(C) such reports under the Exchange Act, as may be required in connection
with this Agreement, the Stockholders Agreement, the Offer, the Merger and
the other transactions contemplated hereby or thereby, (3) the filing of the
Certificate of Merger with the Secretary of State of the State of Delaware
and appropriate documents with the relevant authorities of other states in
which the Company or any of its subsidiaries is qualified to do business, (4)
any filings required under the rules and regulations of the
New York Stock Exchange ("NYSE") and (5) such other consents, approvals,
orders, authorizations, registrations, declarations and filings (including
those required under Environmental Laws (as defined in Section 3.01(l)(vi)))
the failure of which to be obtained or made, individually and in the
aggregate, would not reasonably be expected to have a material adverse effect
or to prevent or materially impede or delay the consummation of the Offer,
the Merger or the other transactions contemplated by this Agreement.
(e) SEC DOCUMENTS. The Company has filed with the SEC all forms,
reports, schedules, statements and other documents required to be filed with
the SEC by the Company since August 2, 1999 (together with and giving effect
to, any amendments, supplements and exhibits thereto and any information
incorporated therein by reference, the "SEC DOCUMENTS"). No subsidiary of
the Company is required to file any form, report, schedule, statement or
other document with the SEC. As of their respective dates, the SEC Documents
complied in all material respects with the requirements of the Securities Act
of 1933, as amended (the "SECURITIES ACT"), or the Exchange Act, as the case
may be, and the rules and regulations of the SEC promulgated thereunder
applicable to such SEC Documents as of the date of the filing. Except to the
extent that information contained in any SEC Document has been revised or
superseded by a later filed SEC Document, none of the SEC Documents contains
any untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The financial statements (including the related notes) included
in the SEC Documents comply as to form in all material respects with
applicable accounting requirements and the published rules and regulations of
the SEC with respect thereto, have been prepared in accordance with generally
accepted accounting principles in the United States ("GAAP") (except, in the
case of unaudited statements, as permitted by Form 10-Q of the SEC) applied
on a consistent basis during the periods involved (except as may be indicated
therein or in the notes thereto) and fairly present in all material respects
the consolidated financial position of the Company and its consolidated
subsidiaries as of the dates thereof and their consolidated results of
operations and cash flows for the periods then ended (subject, in the case of
unaudited statements, to normal and
recurring year-end audit adjustments). Except as set forth in any SEC
Documents filed prior to the date hereof (the "FILED SEC DOCUMENTS"), the
Company and its subsidiaries have no liabilities or obligations (net of the
benefits or assets obtained by the Company in connection with the incurrence
of such liabilities or obligations) of any nature (whether accrued, absolute,
contingent or otherwise), other than liabilities for taxes and other than
liabilities and obligations that, individually and in the aggregate, would
not reasonably be expected to have a material adverse effect.
(f) ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as disclosed on
the Filed SEC Documents, since December 31, 1999, the Company and its
subsidiaries have conducted their respective businesses only in the ordinary
course consistent with past practice, and there has not been (i) any state of
facts, change, development, effect, event, condition or occurrence that,
individually or in the aggregate, constitutes, has had, or would reasonably
be expected to have, a material adverse effect, (ii) prior to the date of
this Agreement, any declaration, setting aside or payment of any dividend on,
or other distribution (whether in cash, stock or property) in respect of, any
of the Company's or any of its subsidiaries' capital stock, except for
dividends by a wholly owned subsidiary of the Company to its parent, (iii)
prior to the date of this Agreement, any purchase, redemption or other
acquisition of any shares of capital stock or any other securities of the
Company or any of its subsidiaries or any options, warrants, calls or rights
to acquire such shares or other securities, (iv) prior to the date of this
Agreement, any split, combination or reclassification of any of the Company's
or any of its subsidiaries' capital stock or any issuance or the
authorization of any issuance of any other securities in respect of, in lieu
of or in substitution for shares of capital stock or other securities of the
Company or any of its subsidiaries, (v) prior to the date of this Agreement,
(x) any granting by the Company or any of its Significant Subsidiaries to any
current or former director or executive officer of any increase, or to any
current or former officer of any material increase, in compensation or other
benefits, except in each case for increases of cash compensation in the
ordinary course of business consistent with past practice or required under
any agreement or benefit plan in effect as of December 31, 1999, (y) any
granting by the Company or any of its Significant Subsidiaries to any current
or former director or officer of any right to receive any material severance
or termination pay or any
material increase therein, or (z) any entry by the Company or any of its
subsidiaries into, or any material amendment of, any Company Benefit
Agreement (as defined in Section 3.01(j)) with any current or former director
or officer of the Company or any of its Significant Subsidiaries or any U.S.
Company Benefit Plan (as defined in Section 3.01(m)), (vi) any change in
financial or tax accounting methods, principles or practices by the Company
or any of its subsidiaries, except insofar as may have been required by a
change in GAAP or applicable law, (vii) prior to the date of this Agreement,
any material election with respect to taxes by the Company or any of its
subsidiaries or (viii) any settlement or compromise of any material tax
liability or refund.
(g) LITIGATION. Except as disclosed in the Filed SEC Documents,
there is no suit, claim, action, investigation or proceeding pending or, to
the knowledge of the Company, threatened against or affecting the Company or
any of its subsidiaries or any of their respective assets that, individually
or in the aggregate, could reasonably be expected to have a material adverse
effect, nor is there any statute, law, ordinance, rule, regulation, judgment,
order, injunction or decree, of any Governmental Entity or arbitrator
outstanding against, or, to the knowledge of the Company, investigation,
proceeding, notice of violation, order of forfeiture or complaint by any
Governmental Entity involving, the Company or any of its subsidiaries that,
individually or in the aggregate, could reasonably be expected to have a
material adverse effect.
(h) CONTRACTS. Except for Contracts filed as exhibits to the
Filed SEC Documents, Section 3.01(h) of the Company Disclosure Schedule sets
forth a true and complete list of:
(i) all Contracts to which the Company or any of its subsidiaries is a
party, or that purports to be binding upon the Company, any of its
subsidiaries or any of its affiliates, that contain a covenant materially
restricting the ability of the Company or any of its subsidiaries (or
which, following the consummation of the Offer or the Merger, would
reasonably be expected to materially restrict the ability of Rexam or any
of its subsidiaries, including the Company and its subsidiaries) to compete
with any
person or engage in any business or activity in any geographic area or
pursuant to which any benefit is required to be given or lost as a result
of so competing or engaging;
(ii) all Contracts pursuant to which the Company or any of its
Significant Subsidiaries is restricted in any material respect in the
development, marketing or distribution of their respective products or
services;
(iii) all loan agreements, credit agreements, notes, debentures,
bonds, mortgages and indentures, in each case, pursuant to which any
indebtedness of the Company or any of its subsidiaries is outstanding or
may be incurred and all guarantees of or by the Company or any of its
subsidiaries of any indebtedness of any other person, including the
respective aggregate principal amounts outstanding as of the most recent
practicable date prior to the date of this Agreement;
(iv) all Contracts or other agreements pursuant to which the Company
or any of its subsidiaries (i) engages in any foreign currency, metals or
other futures or options trading or (ii) is a party to any price swaps,
xxxxxx, futures or similar instrument; and
(v) all Contracts or other agreements between the Company or any of
its subsidiaries on the one hand and Pechiney, a French corporation or any
of its subsidiaries on the other hand.
Except as disclosed in the Filed SEC Documents, none of the Company or any of
its subsidiaries is in violation of or default (with or without notice or
lapse of time or both) under, or has waived or failed to enforce any rights
or benefits under, any material Contract to which it is a party or by which
it or any of its properties or assets is bound, and, to the knowledge of the
Company or such subsidiary, no other party to any of its material Contracts
is in violation or default (with or without notice or lapse of time or both)
under, or has waived or failed to enforce any rights or benefits under, and
there has occurred no event giving to others any right of termination,
amendment or cancelation of, with or without notice or lapse of time or both,
any such Contract except, in each case, for violations, defaults, waivers or
failures to enforce benefits that, individually and in the aggregate, would
not reasonably be expected to have a material adverse effect.
(i) COMPLIANCE WITH LAWS. Except as disclosed in
the Filed SEC Documents and with respect to Environmental Laws and taxes (as
defined in Section 3.01(n)(x)), which are the subject of Sections 3.01(l) and
3.01(n), respectively, the Company and its subsidiaries and their relevant
personnel and operations are in compliance in all material respects with all
statutes, laws, ordinances, rules, regulations, judgments, orders and decrees
of any Governmental Entity applicable to their businesses or operations,
except for violations or possible violations that, individually or in the
aggregate, would not reasonably be expected to have a material adverse
effect. None of the Company or any of its subsidiaries has received, since
August 2, 1999, a notice or other written communication alleging or relating
to a possible violation of any statute, law, ordinance, rule, regulation,
judgment, order or decree of any Governmental Entity applicable to its
businesses or operations, except for violations or possible violations that,
individually or in the aggregate, would not reasonably be expected to have a
material adverse effect. The Company and its subsidiaries have in effect all
material permits, licenses, variances, exemptions, authorizations,
franchises, orders, registrations and approvals of all Governmental Entities
(collectively, "PERMITS"), necessary or advisable for them to own, lease or
operate their properties and assets and to carry on their businesses as now
conducted, and there has occurred no violation of, default (with or without
notice or lapse of time or both) under, or event giving to others any right
of termination, amendment or cancelation of, with or without notice or lapse
of time or both, any such Permit, except for such failings that, individually
or in the aggregate, would not reasonably be expected to have a material
adverse effect.
(j) ABSENCE OF CHANGES IN COMPANY BENEFIT PLANS; EMPLOYMENT
AGREEMENTS. Except as disclosed in the Filed SEC Documents or as would not
reasonably be expected to have a material adverse effect, since December 31,
1999, none of the Company or any of its subsidiaries has terminated, adopted,
amended or agreed to amend any material bonus, pension, profit sharing,
deferred compensation, incentive compensation, stock ownership, stock
purchase, stock appreciation, restricted stock, stock option, phantom stock,
performance, retirement, thrift, savings, stock bonus, cafeteria, paid
time-off, perquisite, fringe benefit, vacation, severance, disability, death
benefit, hospitalization, medical, welfare benefit or other plan,
program, policy, arrangement or understanding maintained or contributed to or
required to be maintained or contributed to by the Company or any of the
subsidiaries for the benefit of any of the current or former directors,
officers, employees, agents, independent contractors or consultants of the
Company or any of its subsidiaries, excluding in each case, any such plan
that is a "multiemployer plan" as defined in Section 3(37) of and subject to
ERISA ("MULTIEMPLOYER PLAN") (collectively, "COMPANY BENEFIT PLANS") or any
change in any actuarial or other assumption used to calculate funding
obligations with respect to any Company Pension Plan (as defined in Section
3.01(m)) or any change in the manner in which contributions to any Company
Pension Plan are made or the basis on which such contributions are
determined. Except as disclosed in the Filed SEC Documents, there exist no
material employment, consulting, deferred compensation, severance,
termination or indemnification agreements or arrangements between the Company
or any of its subsidiaries, on the one hand, and any current or former
director, officer, employee or consultant of the Company or any of its
subsidiaries, on the other hand (collectively, "COMPANY BENEFIT AGREEMENTS").
(k) LABOR MATTERS. The Company and its subsidiaries have not been
engaged in any unfair labor practice and there are no unfair labor practice
complaints against the Company or any of its subsidiaries pending before any
Governmental Entity, except where such unfair labor practice or unfair labor
practice complaint, individually or in the aggregate, would not reasonably be
expected to have a material adverse effect. Except as disclosed in the Filed
SEC Documents, there is no labor dispute, strike, work stoppage or lockout,
or, to the knowledge of the Company, threat thereof, by or with respect to
any employee of the Company or any of its subsidiaries, except where such
dispute, strike, work stoppage or lockout individually or in the aggregate
would not reasonably be expected to have a material adverse effect.
(l) ENVIRONMENTAL MATTERS. Except as disclosed in the Filed SEC
Documents,
(i) each of the Company and its subsidiaries possesses all
Environmental Permits (as defined below) necessary to conduct its
businesses and operations as currently conducted;
(ii) each of the Company and its subsidiaries is in compliance with
all Environmental Laws (as defined
below) and all Environmental Permits;
(iii) there are no Environmental Claims (as defined below) pending or,
to the knowledge of the Company, threatened (A) against the Company or any
of its subsidiaries or (B) against any person whose liability for any
Environmental Claim the Company or any of its subsidiaries has retained or
assumed, either contractually or by operation of law, and none of the
Company or its subsidiaries has contractually retained or assumed any
liabilities or obligations that could reasonably be expected to provide the
basis for any Environmental Claim;
(iv) none of the Company or any of its subsidiaries will be required
to make material expenditures to comply with current requirements of
Environmental Laws; and
(v) there have been no Releases (as defined below) of any Hazardous
Materials that would reasonably be expected to form the basis of any
Environmental Claim;
except for such violations of or inconsistencies with the foregoing clauses
(i) through (v) that, individually or in the aggregate, would not reasonably
be expected to have a material adverse effect.
(vi) DEFINITIONS. "ENVIRONMENTAL CLAIMS" means any and all
administrative, regulatory or judicial actions, orders, decrees, suits,
demands, demand letters, directives, claims, liens, investigations,
proceedings or notices of noncompliance or violation by any Governmental
Entity or other person alleging potential responsibility or liability
(including potential responsibility or liability for costs of enforcement,
investigation, cleanup, governmental response, removal or remediation, for
natural resources damages, property damage, personal injuries or penalties
or for contribution, indemnification, cost recovery, compensation or
injunctive relief) arising out of, based on or related to (A) the presence,
Release or threatened Release of, or exposure to, any Hazardous Materials
at any location or (B) circumstances forming the basis of any violation or
alleged violation of any Environmental Law or Environmental Permit.
"ENVIRONMENTAL LAWS" means all applicable laws, rules, regulations,
orders, decrees, common law, judgments or binding agreements issued,
promulgated or entered into by or with any Governmental Entity relating to
pollution or protection of the environment (including ambient air, surface
water, groundwater, soils or subsurface strata) or protection of human health
as it relates to Hazardous Materials, including laws and regulations relating
to Releases or threatened Releases of Hazardous Materials or otherwise
relating to the generation, manufacture, processing, distribution, use,
treatment, storage, transport, handling of or exposure to Hazardous Materials.
"ENVIRONMENTAL PERMITS" means all permits, licenses, registrations
and other authorizations required under applicable Environmental Laws.
"HAZARDOUS MATERIALS" means all hazardous, toxic, explosive or
radioactive substances, wastes or other pollutants, including petroleum or
petroleum distillates, asbestos or asbestos-containing material,
polychlorinated biphenyls ("PCBS") or PCB-containing materials or equipment,
radon gas, infectious or medical wastes and all other substances or wastes of
any nature regulated pursuant to any Environmental Law.
"RELEASE" means, with respect to any Hazardous Material, any
release, spill, emission, leaking, dumping, injection, pouring, deposit,
disposal, discharge, dispersal, leaching or migration of such Hazardous
Materials into or through the environment (including ambient air, surface
water, groundwater, land surface or subsurface strata) or within any
building, structure, facility or fixture.
(m) ERISA COMPLIANCE. (i) Section 3.01(m)(i) of the Company
Disclosure Schedule contains a true and complete list of all material
"employee welfare benefit plans" (as defined in Section 3(1) of the Employee
Retirement Income Security Act of 1974, as amended "ERISA")), "employee
pension benefit plans" (as defined in Section 3(2) of ERISA) ("COMPANY
PENSION PLANS"), and all other Company Benefit Plans, in each case, for the
benefit of any current or former director, officer, employee, agent,
independent contractor or consultant of the Company or any of its
subsidiaries employed or providing services in the United States (all of the
foregoing being collectively referred to as the "U.S. COMPANY BENEFIT PLANS")
and each Multiemployer Plan. For purposes of this Agreement, the
term "Company Foreign Plan" shall refer to each Company Benefit Plan that is
subject to or governed by the laws of any jurisdiction other than the United
States and that would have been treated as a U.S. Company Benefit Plan had it
covered individuals employed or providing services in the United States. The
Company shall use its reasonable best efforts to make available to Rexam
within 30 days following the date of this Agreement a list of the Company
Foreign Plans.
(ii) The Company has provided or made available to Rexam, or shall
use its reasonable best efforts to do so within 30 days following the date of
this Agreement, true, correct and complete copies of (1) each U.S. Company
Benefit Plan (or, in the case of any unwritten U.S. Company Benefit Plans,
descriptions thereof), (2) the most recent annual report on Form 5500 filed
with the Internal Revenue Service (the "IRS") with respect to each U.S.
Company Benefit Plan (if any such report was required), (3) the most recent
summary plan description or similar document for each U.S. Company Benefit
Plan for which such summary plan description is required or was otherwise
provided to plan participants or beneficiaries and (4) each trust agreement
and insurance annuity contract relating to any U.S. Company Benefit Plan.
(iii) Each U.S. Company Benefit Plan has been administered in all
material respects in accordance with its terms. Except as would not
reasonably be expected to have a material adverse effect, the U.S. Company
Benefit Plans are in compliance with all applicable provisions of ERISA and
the Code and all other applicable laws and the Company Foreign Plans are in
compliance with all applicable laws. As of the date hereof, the Company has
no reason to believe that any U.S. Company Benefit Plan that is a
Multiemployer Plan is not in compliance with the applicable provisions of
ERISA and the Code and all other applicable laws. All Company Pension Plans
have received favorable determination letters from the Internal Revenue
Service with respect to "TRA" (as defined in Section 1 of Rev. Proc. 93-39,
1993-2 C.B. 513), to the effect that such Company Pension Plans are qualified
and exempt from Federal income taxes under Sections 401(a) and 501(a),
respectively, of the Code, and no such determination letter has been revoked
nor, to the knowledge of the Company, has revocation been threatened, nor has
any such Company Pension Plan been amended since the date of its most recent
determination letter or application
therefor in any respect that would adversely affect its qualification.
Except as would not reasonably be expected to have a material adverse effect,
all Company Foreign Plans are, wherever possible under applicable law or
practice, approved by the relevant governmental or taxation authority such as
to enable the plan, its beneficiaries and assets to enjoy the most favorable
taxation status possible and the Company is not aware of any ground on which
such approval may be withdrawn to any extent. Except as would not reasonably
be expected to have a material adverse effect, there is no pending or, to the
knowledge of the Company, threatened litigation, investigation or dispute
relating to the Company Benefit Plans.
(iv) Except as would not reasonably be expected to have a material
adverse effect, no Company Pension Plan, had, as of the respective last
annual valuation date for each such Company Pension Plan, any "unfunded
benefit liabilities", based on actuarial assumptions used for funding
purposes in the most recent actuarial report prepared by such plan's actuary
(which report has been furnished or made available to Rexam), and to the
knowledge of the Company, there has been no material adverse change in the
financial condition of any Company Pension Plan since its last such annual
valuation date. Except as would not reasonably be expected to have a
material adverse effect, no liability under Subtitle C or D of Title IV of
ERISA has been or is expected to be incurred by the Company or any of its
subsidiaries with respect to any U.S. Company Benefit Plan, or the
single-employer plan of any person or entity that, together with the Company
or any of its subsidiaries, is treated as a single employer (a "COMMONLY
CONTROLLED ENTITY") under Section 414(b), (c), (m) or (o) of the code or
Section 4001 of ERISA, that is maintained or contributed to for the benefit
of any current or former directors, officers, employees, agents, independent
contractors or consultants of the Company or any of its subsidiaries. Except
as would not reasonably be expected to have a material adverse effect, none
of the Company, any of its subsidiaries, any officer of the Company or any of
its subsidiaries or any of the U.S. Company Benefit Plans which are subject
to ERISA, including the Company Pension Plans or, to the knowledge of the
Company, any trusts created thereunder or any trustee or administrator
thereof, has engaged in a "prohibited transaction" (as such term is defined
in Section 406 of ERISA or Section 4975 of the Code) or any other breach of
fiduciary responsibility that could subject the Company, any subsidiaries of
the Company or any officer of the Company or any of its subsidiaries to the
tax
or penalty on prohibited transactions imposed by such Section 4975 or to any
liability under Section 502(i) or 502(l) of ERISA. During the last five
years, none of the U.S. Company Benefit Plans and trusts has been terminated,
nor has there been any "reportable event" (as that term is defined in Section
4043 of ERISA) for which the 30-day reporting requirement has not been waived
or satisfied with respect to any U.S. Company Benefit Plan during the last
five years. During the last six years, neither the Company nor any of its
subsidiaries has incurred a "complete withdrawal" or a "partial withdrawal"
(as such terms are defined in Sections 4203 and 4205, respectively, of ERISA)
with respect to any Multiemployer Plan that the Company or any of its
subsidiaries has or had in the last six years an obligation to contribute to
on behalf of its or their employees. Except as would not reasonably be
expected to have a material adverse effect, all contributions and premiums
required to be made by the Company and its subsidiaries under the terms of
any Company Benefit Plan or with respect to any Multiemployer Plan in
accordance with the contribution schedules provided to the Company by the
administrator of any such Multiemployer Plan as of the date hereof have been
timely made or have been accrued in accordance with GAAP. Neither any
Company Pension Plan, nor to the knowledge of the Company, any
single-employer plan of a Commonly Controlled Entity has an "accumulated
funding deficiency" (as such term is defined in Section 302 of ERISA or
Section 412 of the Code), whether or not waived, in each case, as of the most
recent valuation date of any such plan.
(v) With respect to any U.S. Company Benefit Plan that is an
employee welfare benefit plan, (i) no such U.S. Company Benefit Plan is
unfunded or funded through a "welfare benefit fund" (as such term is defined
in Section 419(e) of the Code), (ii) each such U.S. Company Benefit Plan that
is a "group health plan" (as such term is defined in Section 5000(b)(1) of
the Code), complies with the applicable requirements of Section 4980B(f) of
the Code and (iii) the Company has reserved the right to amend or terminate
the U.S. Company Benefit Plans. Except as set forth in the Filed SEC
documents, neither the Company nor any of its subsidiaries has any material
obligations for retiree health and life benefits under any U.S. Company
Benefit Plan or Company Benefit Agreement.
(vi) The consummation of the Offer, the Merger or any
other transaction contemplated by this Agreement will not (x) entitle any
employee, officer or director of the Company or any of its subsidiaries to
severance pay, (y) accelerate the time of payment or vesting or trigger any
payment or funding (through a grantor trust or otherwise) of compensation or
benefits under, increase the amount payable or trigger any other material
obligation pursuant to, any of the U.S. Company Benefit Plans or Company
Benefit Agreements or (z) result in any breach or violation of, or a default
under, any of the U.S. Company Benefit Plans or Company Benefit Agreements.
(vii) Any amount or economic benefit that could be received
(whether in cash or property or the vesting of property) as a result of the
Offer, the Merger or any other transaction contemplated by this Agreement
(including as a result of termination of employment on or following the
Effective Time) by any employee, officer or director of the Company or any of
its affiliates who is a "disqualified individual" (as such term is defined in
proposed Treasury Regulation Section 1.280G-1) under any U.S. Company Benefit
Plan or Company Benefit Agreement or otherwise would not be characterized as
an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code),
and no disqualified individual is entitled to receive any additional payment
from the Company or any of its subsidiaries or any other person in the event
that the excise tax under Section 4999 of the Code is imposed on such
disqualified individual. Set forth in the Company Disclosure Schedule is (i)
the estimated aggregate amount as of the date hereof that could be paid to
the persons listed on Section 3.01(m)(vii) of the Company Disclosure Schedule
("PRIMARY COMPANY EXECUTIVES") as a result of the Offer, the Merger and the
other transactions contemplated by this Agreement under all U.S. Company
Benefit Plans and Company Benefit Agreements and (ii) the "base amount" (as
defined in Section 280G(b)(3) of the Code) for each Primary Company Executive
calculated as of the date of this Agreement.
(viii) Except as would not reasonably be expected to have a
material adverse effect, the deduction of any amount payable pursuant to the
terms of the U.S. Company Benefit Plans or the Company Benefit Agreements
(including by reason of the transactions contemplated hereby) will not be
subject to disallowance under Section 162(m) of the Code.
(n) TAXES. (i) (A) Each of the Company and its subsidiaries has
timely filed all domestic and foreign (whether national, federal, state,
provincial, local or
otherwise) tax returns and reports required to be filed by it except to the
extent any such failures to file, individually and in the aggregate, would
not reasonably be expected to have a material adverse effect; (B) each of the
Company and its subsidiaries has timely paid all taxes shown as due on such
returns and reports except to the extent any such failures to timely pay,
individually and in the aggregate, would not reasonably be expected to have a
material adverse effect; and (C) the most recent financial statements
contained in the Filed SEC Documents reflect an adequate reserve for all
current taxes payable by the Company and each of its subsidiaries (in
addition to any reserve for deferred taxes established to reflect timing
differences between book and tax items) for all taxable periods and portions
thereof through the date of such financial statements.
(ii) No material domestic or foreign (whether national, federal,
state, provincial, local or otherwise) income or franchise tax return or
report or any other material tax return or report of the Company or any of
its subsidiaries is under audit or examination by any taxing authority, and
no written or, to the knowledge of the Company, unwritten notice of such an
audit or examination has been received by the Company or any of its
subsidiaries. The Company has received no notice of deficiency, refund
litigation, proposed adjustment or matter in controversy with respect to any
material amount of taxes due and owing by the Company or any of its
subsidiaries. Each deficiency resulting from any completed audit or
examination relating to any material amount of taxes by any taxing authority
or any concluded litigation has been timely paid. The United States Federal
income tax returns of the Company and each of its subsidiaries that is
consolidated in such returns have been examined by the Internal Revenue
Service or have closed by virtue of the expiration of the relevant statute of
limitations for all years through December 13, 1995.
(iii) Except as disclosed on Section 3.01(n)(iii) of the Company
Disclosure Schedule, with respect to each of the Company and its
subsidiaries, to the knowledge of the Company there is no currently effective
agreement or other document extending, or having the effect of extending, the
period of assessment or collection of any taxes and no power of attorney with
respect to any taxes has been executed or
filed with any taxing authority.
(iv) No material Liens for taxes exist upon any assets or
properties of the Company or any of its subsidiaries, except for statutory
Liens for taxes not yet due and Liens for taxes that the Company or any of
its subsidiaries is contesting in good faith for which adequate reserves have
been established.
(v) Except as disclosed on Section 3.01(n)(v) of the Company
Disclosure Schedule, none of the Company or any of its subsidiaries is a
party to or bound by any tax sharing agreement, tax indemnity obligation or,
to the knowledge of the Company, any similar agreement, arrangement or
practice with respect to taxes (including any advance pricing agreement,
closing agreement, gain recognition agreement or other material agreement
relating to taxes with any taxing authority).
(vi) None of the Company or any of its subsidiaries was, at any
time during a period specified in Section 897(c)(1)(A)(ii) of the Code, a
United States real property holding corporation within the meaning of Section
897(c)(2) of the Code.
(vii) None of the Company or any of its subsidiaries has at any
time since December 13, 1995 been a member of a Company Affiliated Group (as
defined in Section 3.01(n)(x)), other than a group of which the Company,
Pechiney North America, Inc. a Delaware corporation, or Pechiney, a French
corporation, directly or indirectly, singly or together, has been the common
parent, and, to the best knowledge of the Company, none of the Company or any
of its subsidiaries has any liability for taxes of any other person which is
not a subsidiary of the Company under Treasury Regulation Section 1.1502-6
(or comparable provisions of foreign, state or local law), as a transferee or
successor, by contract or otherwise.
(viii) Except as otherwise disclosed in the Filed SEC Documents,
none of the Company or any of its subsidiaries has constituted either a
"distributing corporation" or a "controlled corporation" in a distribution of
stock qualifying or intended to qualify for tax-free treatment under Section
355 of the Code in the two years prior to the date of this Agreement.
(ix) As disclosed in Section 3.01(n)(ix) of the Company Disclosure
Schedule, as of December 31, 1999, the Company had U.S. federal net operating
loss carryforwards
(the "NOL CARRYFORWARDS") totaling not less than $343,338,892. Section
3.01(n)(ix) of the Company Disclosure Schedule sets forth the periods during
which the NOL Carryforwards arose and the expiration dates of the NOL
Carryforwards, identifies which amounts, if any, are currently limited under
Section 382 of the Code or the "separate return limitation year" ("SRLY")
rules of the consolidated return regulations, and, in the case of NOL
Carryforwards currently limited under Section 382 of the Code, the relevant
Section 382 limitation (within the meaning of Section 382(b)(1) of the Code).
(x) As used in this Agreement, (A) "TAXES" shall include all (x)
domestic and foreign (whether national, federal, state, provincial, local or
otherwise) income, franchise, property, sales, excise, employment, payroll,
social security, value-added, ad valorem, transfer, withholding, license,
severance, stamp, premium, environmental, customs, duties, capital stock,
unemployment, disability, registration, estimated, alternative, add-on
minimum and other taxes, including taxes based on or measured by gross
receipts, profits, sales, use or occupation, tariffs, levies, impositions,
assessments or governmental charges of any nature whatsoever, including any
interest penalties or additions with respect thereto, (y) liability for the
payment of any amounts of the type described in clause (x) as a result of
being a member of an affiliated, consolidated, combined or unitary group, and
(z) liability for the payment of any amounts as a result of being party to
any tax sharing agreement or as a result of any express or implied obligation
to indemnify any other person with respect to the payment of any amounts of
the types described in clause (x) or (y) and (B) "COMPANY AFFILIATED GROUP"
shall mean each group of which the Company or any of its subsidiaries is or
has been a member during a period for which the group filed a tax return or
report on an affiliated, combined, consolidated or unitary basis.
(o) INTELLECTUAL PROPERTY. (i) The Company and its subsidiaries
own, free and clear of all Liens, or are validly licensed or otherwise have
the right to use all the trademarks, service marks, trade names, brands,
copyrights and patents, all applications for registration and registrations
for such trademarks, copyrights and patents and all mask works, trade
secrets, confidential and proprietary information, compositions of matter,
formulas,
designs, proprietary rights, know-how and processes owned by or licensed to
or used by the Company or any of its subsidiaries (all of the foregoing
collectively hereinafter referred to as the "INTELLECTUAL PROPERTY RIGHTS")
that are material to the conduct of the business of the Company and its
subsidiaries, with such exceptions as, individually or in the aggregate,
would not reasonably be expected to have a material adverse effect. To the
Company's knowledge, all the Intellectual Property Rights are valid,
enforceable and in full force and effect.
(ii) To the Company's knowledge, none of the Company or any of its
subsidiaries has interfered with, infringed upon or misappropriated any valid
Intellectual Property Rights or other proprietary information of any other
person, except any such infringement or misappropriation that, individually
and in the aggregate would not reasonably be expected to have a material
adverse effect. Since August 2, 1999, none of the Company or any of its
subsidiaries has received any written charge, complaint, claim, demand or
notice alleging any such interference, infringement, misappropriation or
other conflict (including any claim that the Company or any of its
subsidiaries must license or refrain from using any Intellectual Property
Rights or other proprietary information of any other person) that has not
been settled or otherwise fully resolved. To the Company's knowledge, no
other person has interfered with, infringed upon or misappropriated any
Intellectual Property Rights of the Company or any of its subsidiaries,
except any such infringement or misappropriation that, individually and in
the aggregate would not reasonably be expected to have a material adverse
effect.
(p) STATE TAKEOVER STATUTES. The Board of Directors of the
Company has taken all actions necessary to exempt the Offer, the Merger, this
Agreement, the Stockholders Agreement and the transactions contemplated
hereby and thereby under Section 203 of the DGCL. No other state takeover or
similar statute or regulation is applicable to this Agreement, the
Stockholders Agreement, the Offer, the Merger or the other transactions
contemplated hereby or thereby.
(q) BROKERS; SCHEDULE OF FEES AND EXPENSES. No broker, investment
banker, financial advisor, finder or other similar person, other than
Deutsche Bank Securities Inc., the fees and expenses of which will be paid by
the Company, is entitled to any broker's, finder's, financial advisor's or
other similar fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of the Company. The Company has delivered to Rexam true
and complete copies of all agreements under which any such fees or expenses
are payable and all indemnification and other agreements related to the
engagement of the persons to whom such fees are payable.
(r) OPINION OF FINANCIAL ADVISOR. The Company has received the
written opinion of Deutsche Bank Securities Inc., substantially to the effect
that, as of the date hereof, the consideration to be received in the Offer
and the Merger by the Company's stockholders is fair to the Company's
stockholders from a financial point of view, a copy of which opinion has been
delivered to Rexam.
SECTION 3.02. REPRESENTATIONS AND WARRANTIES OF REXAM AND SUB.
Rexam and Sub represent and warrant to the Company as follows:
(a) ORGANIZATION. Each of Rexam and Sub is a corporation duly
incorporated or organized, validly existing and in good standing under the
laws of the jurisdiction in which it is incorporated or organized and has
all requisite corporate power and authority to carry on its business as now
being conducted.
(b) AUTHORITY; NONCONTRAVENTION. Rexam and Sub have the requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and
delivery of this Agreement by Rexam and Sub, the consummation by Rexam and
Sub of the transactions contemplated hereby and the financing arrangements
referred to in Section 3.02(d), have been duly authorized by all necessary
corporate action on the part of Rexam and Sub and no other corporate
proceedings on the part of Rexam or Sub are necessary to approve this
Agreement or to consummate the transactions contemplated hereby, subject to
obtaining the approval of this Agreement and the transactions contemplated
hereby, including the Offer and the Merger, at the Rexam Shareholders
Meeting (as defined in Section 5.01(c)) or any adjournment or postponement
thereof by the holders of the outstanding ordinary shares of Rexam to the
extent required by the rules of
the London Stock Exchange (the "REXAM SHAREHOLDER APPROVAL"). The Rexam
Shareholder Approval shall require only the affirmative vote of the holders
of a majority of all of the outstanding ordinary shares of Rexam that are
entitled to vote upon the proposals to approve this Agreement, the Offer
and the Merger and are present or represented by proxy at the Rexam
Shareholders Meeting. This Agreement has been duly executed and delivered
by Rexam and Sub, as applicable, and constitutes a valid and binding
obligation of Rexam and Sub, as applicable, enforceable against Rexam and
Sub, as applicable, in accordance with its terms, subject to laws
concerning bankruptcy and creditors' rights. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby
and compliance with the provisions hereof do not and will not conflict
with, or result in any violation or breach of, or default (with or without
notice or lapse of time, or both) under, or give rise to a right of, or
result in, termination, cancelation or acceleration of any obligation or to
loss of a material benefit under, or result in the creation of any Lien
upon any of the properties or assets of Rexam under, or give rise to any
increased, additional, accelerated or guaranteed rights or entitlements
under, any provision of (i) the articles of organization or by-laws or
similar organizational documents of Rexam or the certificate of
incorporation or by-laws or similar organizational documents of any of its
subsidiaries (including Sub), (ii) any Contract to which Rexam or Sub is a
party or any of their respective properties or assets is subject or (iii)
subject to the governmental filings and other matters referred to in the
following sentence, any (A) statute, law, ordinance, rule or regulation or
(B) judgment, order or decree, in each case applicable to Rexam or Sub or
their respective properties or assets, other than, in the case of clauses
(ii) and (iii), any such conflicts, violations, breaches, defaults, rights,
losses, Liens or entitlements that, individually and in the aggregate,
would not reasonably be expected to prevent or materially impede or delay
the consummation of the Offer, the Merger or the other transactions
contemplated hereby. No consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental Entity is
required by Rexam or Sub in connection with the execution and delivery of
this Agreement by Rexam and Sub and the execution and delivery of the
Stockholders Agreement by
Rexam or the consummation by Rexam and Sub of the transactions contemplated
hereby and thereby or the compliance with the provisions hereof or thereof,
except for (1) the filing of a premerger notification and report form under
the HSR Act or the anti-competition laws or regulations of the European
Union or any foreign jurisdiction in which the Company or Rexam (directly
or through subsidiaries, in each case) has material assets or conducts
material operations, or any other applicable competition, merger control,
antitrust or similar laws or regulations, (2) the filing of the Certificate
of Merger with the Secretary of State of the State of Delaware and
appropriate documents with the relevant authorities of other states in
which the Company is qualified to do business, (3) filings in connection
with the Rexam Shareholder Approval, including the filing of the Circular
with the London Stock Exchange, (4) the filing of the Offer Documents with
the SEC and (5) such other consents, approvals, orders, authorizations,
registrations, declarations and filings the failure of which to be obtained
or made, individually and in the aggregate, would not impair in any
material respect the ability of Rexam or Sub to perform its obligations
under this Agreement or prevent or materially delay the consummation of any
of the transactions contemplated by this Agreement.
(c) INTERIM OPERATIONS OF SUB. Sub was formed solely for the purpose
of engaging in the transactions contemplated hereby and has engaged in no
business other than in connection with the transactions contemplated by
this Agreement.
(d) CAPITAL RESOURCES. Prior to the date hereof, Rexam has obtained
written commitments for the financing to pay for all shares of the Company
Common Stock validly tendered into and not withdrawn from the Offer and to
pay the Merger Consideration and all associated costs and expenses
(including refinancing of the Company's existing indebtedness following the
consummation of the Offer), copies of which have been delivered to the
Company.
(e) DIRECTOR RECOMMENDATIONS. The Board of Directors of Rexam (or a
duly authorized committee) has
duly and unanimously adopted resolutions which are still in full force and
effect as of the date hereof (i) approving and declaring advisable the
Offer, the Merger, this Agreement and the transactions contemplated hereby
(ii) directing that this Agreement be submitted to a vote at a meeting of
Rexam's shareholders and (iii) recommending that Rexam's shareholders
approve this Agreement.
ARTICLE IV
COVENANTS RELATING TO CONDUCT OF BUSINESS
SECTION 4.01. CONDUCT OF BUSINESS. (a) CONDUCT OF BUSINESS BY
THE COMPANY. During the period from the date of this Agreement to the
Effective Time, except (i) as consented to in writing by Rexam, (ii) as
specifically contemplated by this Agreement or (iii) as disclosed on Schedule
4.01 of the Company Disclosure Schedule (with specific reference to the
Subsection of this Section 4.01 to which the information stated in such
disclosure relates and such other Subsections of this Section 4.01 to the
extent a matter is disclosed in such a way as to make its relevance to the
information called for by such other Subsection readily apparent), the
Company shall, and shall cause its subsidiaries to, carry on their respective
businesses in the ordinary course consistent with past practice and use their
commercially reasonable efforts to comply with all applicable laws, rules and
regulations and, to the extent consistent therewith, use their commercially
reasonable efforts to preserve their assets and technology and preserve their
relationships with customers, suppliers, licensors, licensees, distributors
and others having business dealings with them in all material respects.
Without limiting the generality of the foregoing, but subject to clauses (i),
(ii) and (iii) above, the Company shall not, and shall not permit any of its
subsidiaries to:
(i) (w) declare, set aside or pay any dividends on, or make any other
distributions (whether in cash, stock or property) in respect of, any of
its capital stock except for cash dividends by a direct or indirect wholly
owned subsidiary of the Company organized under the laws of any
jurisdiction other than any European subsidiary of the Company to its
parent, (x) purchase, redeem or otherwise acquire any shares of capital
stock or any other securities of the Company or its subsidiaries or any
options, warrants, calls or rights
to acquire any such shares or other securities, (y) split, combine or
reclassify any of its capital stock or issue or authorize the issuance of
any other securities in respect of, in lieu of or in substitution for
shares of its capital stock or any of its other securities or (z) liquidate
or merge with any subsidiaries of the Company;
(ii) issue, deliver, sell, pledge or otherwise transfer or encumber
any shares of its capital stock, any other equity or voting interests or
any securities convertible into, or exchangeable for, or any options,
warrants, calls or rights to acquire, any such shares, voting securities or
convertible securities or any stock appreciation rights or other rights
that are linked to the price of Company Common Stock (other than the
issuance of shares of Company Common Stock upon the exercise of Company
Stock Options that are in existence on the date of this Agreement);
(iii) amend its certificate of incorporation or by-laws (or similar
organizational documents);
(iv) directly or indirectly acquire or agree to acquire (A) by merging
or consolidating with, or by purchasing all or a substantial portion of the
assets of, or by any other manner, any assets constituting a business or
any corporation, partnership, joint venture or association or other entity
or division thereof, or any direct or indirect interest in any of the
foregoing, or (B) any assets other than purchases of assets in the ordinary
course of business consistent with past practice;
(v) directly or indirectly sell, lease, license, sell and leaseback,
mortgage or otherwise encumber or subject to any Lien or otherwise dispose
of any of its properties or assets or any interest therein, except sales of
(i) inventory and obsolete assets in the ordinary course of business
consistent with past practice and (ii) immaterial assets in the ordinary
course of business consistent with past practice;
(vi) (x) repurchase, accelerate, prepay or incur any indebtedness or
guarantee any indebtedness of another person or issue or sell any debt
securities or options,
warrants, calls or other rights to acquire any debt securities of the
Company or any of its subsidiaries, guarantee any debt securities of
another person, enter into any "keep well" or other agreement to maintain
any financial statement condition of another person or enter into any
arrangement having the economic effect of any of the foregoing, except
for (A) short-term borrowings incurred in the ordinary course of business
consistent with past practice, (B) borrowings under existing credit
facilities of the Company or any of its subsidiaries up to the
existing borrowing limit on the date hereof or (C) any acceleration of the
indebtedness of the Company and its subsidiaries occurring as a result of
the consummation of the Offer, the Merger or the other transactions
contemplated hereby or by the Stockholders Agreement (PROVIDED, HOWEVER,
that with respect to this Section 4.01(a)(vi)(x), such borrowings at any
month end shall not exceed by more than $50,000,000 in the aggregate the
maximum amount for any month end set forth in the Company's current 2000
budget, a true and complete copy of which has been made available to Rexam
prior to the date of this Agreement, which maximum amount is hereby
represented and warranted by the Company to be no more than $1.2 billion),
(y) make any loans, advances or capital contributions to, or investments
in, any other person, other than the Company or any direct or indirect
wholly owned subsidiary of the Company, other than in the ordinary course
of business consistent with past practice and not materially greater than
the amounts, if any, set forth in the Company's current 2000 budget or
(z) enter into any hedging agreement or other financial agreement or
arrangement designed to protect the company against fluctuations in
commodities prices or current exchange rates, except agreements or
arrangements in respect of contractual commitments of the Company entered
into in the ordinary course of business consistent with past practice;
(vii) incur or commit to incur any capital expenditures, whether by
acquisition or internal investment, or any obligations or liabilities in
connection therewith, in excess of $3,000,000 individually or $6,000,000 in
the aggregate above expenditures that are consistent (as to amount) and not
materially inconsistent (as to timing) with the Company's current capital
budget for 2000, a true and complete copy of which has been made available
to Rexam prior to the date of this Agreement;
(viii) pay, discharge, settle or satisfy any claims (including claims
of stockholders), liabilities or obligations (whether absolute, accrued,
asserted or unasserted, contingent or otherwise), in excess of $5,000,000
in the aggregate other than the payment, discharge or satisfaction in the
ordinary course of business consistent with past practice or as required by
their terms as in effect on the date of this Agreement of claims,
liabilities or obligations reflected, reserved against or otherwise
disclosed in the most recent audited financial statements (or the notes
thereto) of the Company included in the Filed SEC Documents (for amounts
not in excess of such reserves or as otherwise disclosed) or incurred since
the date of such financial statements in the ordinary course of business
consistent with past practice, or waive, release, grant or transfer any
right of material value, other than in the ordinary course of business
consistent with past practice, or waive any material benefits of, or agree
to modify in any adverse respect, or fail to enforce, or consent to any
matter with respect to which its consent is required under, any
confidentiality, standstill or similar agreement to which the Company or
any of its subsidiaries is a party;
(ix) (A) grant to any employee, officer, director, consultant or
independent contractor of the Company or any of its subsidiaries any
increase in cash compensation or pay any bonus, other than in the ordinary
course of business consistent with past practice to persons that are not
directors or Primary Company Executives, (B) grant to any employee,
officer, director, consultant or independent contractor of the Company or
any of its subsidiaries any increase in severance or termination pay,
(C) establish, adopt, enter into or amend any Company Benefit Agreement,
(D) establish, adopt, enter into or amend in any material respect any
collective bargaining agreement (except that the collective bargaining
agreements covering the Oklahoma City, Valparaiso or Whitehouse plants may
be adopted after prior notification to Rexam) or Company Benefit Plan,
(E) take any action to accelerate any rights or benefits, take any action
to fund or in any other way secure the payment of
compensation or benefits under any Company Benefit Agreement or Company
Benefit Plan, or make any material determinations not in the ordinary
course of business consistent with past practice, under any collective
bargaining agreement or Company Benefit Plan or Company Benefit Agreement,
other than pursuant to the provisions of Section 5.04 hereof, including
any payment of cash pursuant thereto or (F) amend or modify or grant any
Company Stock Option, in each case above other than (i) changes that are
required by applicable law or (ii) to satisfy obligations existing as of
the date hereof;
(x) fail to maintain existing insurance at levels substantially
comparable to current levels;
(xi) transfer or license to any person or entity or otherwise extend,
amend or modify any rights to the Intellectual Property Rights of the
Company and its subsidiaries other than in the ordinary course of business
consistent with past practices; PROVIDED that in no event shall the Company
license on an exclusive basis or sell any Intellectual Property Rights of
the Company or its subsidiaries;
(xii) enter into or amend any agreements pursuant to which any person
is granted exclusive marketing, manufacturing or other rights with respect
to any material Company product, process or technology;
(xiii) except insofar as may be required by a change in GAAP or
generally accepted accounting principles of the applicable jurisdiction or
changes in applicable law, make any changes in accounting methods,
principles or practices;
(xiv) take any action that would reasonably be expected to result in
(A) any representation and warranty of the Company set forth in this
Agreement that is qualified as to materiality becoming untrue, (B) any such
representation and warranty that is not so qualified becoming untrue in any
material respect or (C) any condition to the Offer or the Merger not being
satisfied;
(xv) transfer, encumber or redeem any shares of capital stock of
Nacanco Holding Europe or Nacanco Holding France; or
(xvi) authorize any of, or commit, resolve or agree to take any of,
the foregoing actions.
(b) CERTAIN TAX MATTERS. During the period from the date of this
Agreement to the Effective Time, the Company shall, and shall cause each of
its subsidiaries to, (i) timely file all tax returns ("POST-SIGNING RETURNS")
required to be filed by each such entity; (ii) timely pay all taxes due and
payable in respect of such Post-Signing Returns that are so filed; (iii)
accrue a reserve in the books and records and financial statements of any
such entity in accordance with past practice for all taxes payable by such
entity for which no Post-Signing Return is due prior to the Effective Time;
(iv) promptly notify Rexam of any suit, claim, action, investigation,
proceeding or audit (collectively, "ACTIONS") pending against or with respect
to the Company or any of its subsidiaries in respect of any tax and not
settle or compromise any such Action without Rexam's consent; (v) not make
any material tax election without Rexam's consent, which consent shall not be
unreasonably withheld; and (vi) upon satisfaction of or waiver of the
conditions set forth in Article VI cause all existing tax sharing agreements,
tax indemnity obligations and similar agreements, arrangements and practices
with respect to taxes to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is otherwise bound
to be terminated as of the Closing Date (unless directed otherwise by Rexam
in writing delivered to the Company at least five business days prior to the
Closing) so that after such date neither the Company nor any of its
subsidiaries shall have any further rights or liabilities thereunder.
(c) CONDUCT OF BUSINESS BY REXAM. During the period from the date
of this Agreement to the Effective Time, Rexam shall not make any
acquisitions of assets or businesses in the beverage packaging industry
which, in its reasonable judgment, would be reasonably likely to materially
impede obtaining the regulatory approvals necessary to consummate the Offer
and the Merger.
SECTION 4.02. NO SOLICITATION. (a) The Company shall not, nor
shall it permit any of its subsidiaries to, nor shall it authorize or permit
any director, officer or employee of the Company or any of its subsidiaries
or any investment banker, attorney, accountant or other advisor or
representative of the Company or any of its subsidiaries to, directly or
indirectly, (i) solicit, initiate or encourage, or take any other action to
facilitate, any Takeover Proposal (as defined below) or (ii) enter into,
continue or otherwise participate in any discussions or negotiations
regarding, or furnish to any person any information with respect to, or
otherwise cooperate in any way with, or assist or participate in any effort
or attempt by any person with respect to, any Takeover Proposal; PROVIDED
that at any time prior to the acceptance for payment of shares of Company
Common Stock pursuant to and subject to the conditions of the Offer (the
"SPECIFIED DATE"), the Board of Directors of the Company may, in response to
a Superior Proposal (as defined below) or a bona fide Takeover Proposal that
such Board of Directors determines in good faith is reasonably likely to lead
to a Superior Proposal (a "LIKELY SUPERIOR PROPOSAL"), in each case that was
unsolicited and that did not otherwise result from a breach of this Section
4.02, and subject to compliance with Section 4.02(c), (x) furnish information
with respect to the Company and its subsidiaries to the person making such
Superior Proposal or Likely Superior Proposal (and its representatives)
pursuant to a customary confidentiality agreement (which confidentiality
agreement contains terms that are no less favorable to the Company than, the
terms of the Confidentiality Agreement dated March 10, 2000, between Rexam
and the Company (as it may be amended from time to time, the "CONFIDENTIALITY
AGREEMENT")); and (y) participate in discussions or negotiations with the
person making such Superior Proposal or Likely Superior Proposal (and its
representatives) regarding such Superior Proposal or Likely Superior Proposal.
For purposes of this Agreement, "SUPERIOR PROPOSAL" means any offer
not solicited by the Company made by a third party to consummate a tender offer,
exchange offer, merger, consolidation or similar transaction which would result
in such third party (or its shareholders) owning, directly or indirectly, more
than 50% of the shares of Company Common Stock then outstanding (or of the
surviving entity in a merger) or all or substantially all of the assets of the
Company and its subsidiaries and otherwise on terms which the Board of Directors
of the Company determines in good faith (following receipt of the advice of a
financial advisor of nationally recognized reputation) to provide consideration
to the holders of Company Common Stock with a greater value than the
consideration payable in the Merger, taking into account any changes to the
terms of this Agreement proposed in writing by Rexam in response to such
Superior Proposal or otherwise.
For purposes of this Agreement, "TAKEOVER PROPOSAL" means any
inquiry, proposal or offer from any person relating to any direct or indirect
acquisition or purchase of 15% or more of the assets of the Company and its
subsidiaries, taken as a whole, or 15% or more of any class or series of
equity securities of the Company or any of its subsidiaries, any tender offer
or exchange offer that if consummated would result in any person beneficially
owning 15% or more of any class or series of equity securities of the Company
or any of its subsidiaries, or any merger, consolidation, business
combination, recapitalization, liquidation, dissolution or similar
transaction involving the Company or any of its subsidiaries, other than the
transactions contemplated by this Agreement.
(b) Except as set forth below, neither the Board of Directors of
the Company nor any committee thereof shall (i) withdraw (or modify in a
manner adverse to Rexam or Sub) or propose to withdraw (or modify in a manner
adverse to Rexam or Sub) the approval or recommendation by such Board of
Directors or any such committee of this Agreement, the Offer or the Merger,
(ii) adopt, approve or recommend, or propose to adopt, approve or recommend,
any Takeover Proposal, (iii) cause or permit the Company to enter into any
letter of intent, memorandum of understanding, agreement in principle,
acquisition agreement, merger agreement or other similar agreement (each, an
"ACQUISITION AGREEMENT") constituting or related to, or which is intended to
or is reasonably likely to lead to, any Takeover Proposal (other than a
confidentiality agreement referred to in Section 4.02(a) entered into under
the circumstances referred to in such Section 4.02(a)) or (iv) agree or
resolve to take any of the actions set forth in clauses (i), (ii) or (iii) of
this sentence. Notwithstanding the foregoing, at any time prior to the
Specified Date, the Board of Directors of the Company may, in response to a
Superior Proposal that was unsolicited and that did not otherwise result from
a breach of Section 4.02(a), withdraw or modify the recommendation by such
Board of Directors of this Agreement, the Offer or the Merger or terminate
this Agreement, if such Board of Directors determines in good faith (after
consultation with outside counsel) that its fiduciary obligations require it
to do so (and concurrently with or after such termination, if it so chooses,
cause the
Company to enter into any Acquisition Agreement with respect to any
Superior Proposal), but only at a time that is prior to the Specified Date
and is after the fourth business day following Rexam's receipt of written
notice advising Rexam that the Board of Directors of the Company is prepared
to accept a Superior Proposal, specifying the material terms and conditions
of such Superior Proposal and identifying the person making such Superior
Proposal.
(c) In addition to the obligations of the Company set forth in
paragraphs (a) and (b) of this Section 4.02, the Company shall promptly (and in
no event later than 72 hours) advise Rexam orally and in writing of any request
for information that the Company reasonably believes could lead to or
contemplates a Takeover Proposal or of any Takeover Proposal, or any inquiry the
Company reasonably believes could lead to any Takeover Proposal, the terms and
conditions of such request, Takeover Proposal or inquiry (including any
subsequent amendment or other modification to such terms and conditions) and the
identity of the person making any such request, Takeover Proposal or inquiry.
The Company shall promptly keep Rexam informed in all material respects of the
status and details (including amendments or proposed amendments) of any such
request, Takeover Proposal or inquiry.
(d) Nothing contained in this Section 4.02 or elsewhere in this
Agreement shall prohibit the Company from (i) taking and disclosing to its
stockholders a position contemplated by Rule 14e-2(a) promulgated under the
Exchange Act or (ii) making any disclosure to the Company's stockholders if, in
the good faith judgment of the Board of Directors of the Company, after
consultation with outside counsel, failure so to disclose would be inconsistent
with applicable law; PROVIDED, HOWEVER, that, except as set forth in
Section 4.02(b), in no event shall the Board of Directors of the Company or any
committee thereof withdraw or modify, or propose to withdraw or modify, its
position with respect to this Agreement, the Offer or the Merger or adopt,
approve or recommend, or propose to adopt, approve or recommend, any Takeover
Proposal.
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.01. PREPARATION OF THE PROXY STATEMENT; COMPANY
STOCKHOLDERS MEETING; REXAM SHAREHOLDERS MEETING;
OFFERING CIRCULAR. (a) If the adoption of this Agreement by the Company's
stockholders is required by law, the Company and Rexam shall, as promptly as
practicable following the expiration of the Offer, prepare and file with the
SEC the Proxy Statement and the Company shall use its commercially reasonable
efforts to respond as promptly as practicable to any comments of the SEC with
respect thereto and to cause the Proxy Statement to be mailed to the
Company's stockholders as promptly as practicable following the expiration of
the Offer. The Company shall promptly notify Rexam upon the receipt of any
comments from the SEC or its staff or any request from the SEC or its staff
for amendments or supplements to the Proxy Statement and shall provide Rexam
with copies of all correspondence between the Company and its
representatives, on the one hand, and the SEC and its staff, on the other
hand. Notwithstanding the foregoing, prior to filing or mailing the Proxy
Statement (or any amendment or supplement thereto) or responding to any
comments of the SEC with respect thereto, the Company (i) shall provide Rexam
an opportunity to review and comment on such document or response, (ii) shall
include in such document or response all comments reasonably proposed by
Rexam and (iii) shall not file or mail such document or respond to the SEC
prior to receiving Rexam's approval, which approval shall not be unreasonably
withheld or delayed.
(b) If the adoption of this Agreement by the Company's
Stockholders is required by law, the Company shall, as promptly as
practicable following the expiration of the Offer, establish a record date
(which will be as promptly as reasonably practicable following the expiration
of the Offer) for, duly call, give notice of, convene and hold a meeting of
its stockholders (the "COMPANY STOCKHOLDERS MEETING") for the purpose of
obtaining the Company Stockholder Approval. Subject to Section 4.02(b), the
Company shall, through its Board of Directors, recommend to its stockholders
that they adopt this Agreement, and shall include such recommendation in the
Proxy Statement. Without limiting the generality of the foregoing, the
Company agrees that its obligations pursuant to the first sentence of this
Section 5.01(b) shall not be affected by (i) the commencement, public
proposal, public disclosure or communication to the Company or any other
person of any Takeover Proposal or (ii) the withdrawal or modification by the
Board of Directors of the Company or any committee
thereof of such Board's or committee's approval or recommendation of the
Offer, the Merger or this Agreement. Notwithstanding the foregoing, if Sub
or any other subsidiary of Rexam shall acquire at least 90% of the
outstanding shares of Company Common Stock, the parties shall take all
necessary and appropriate action to cause the Merger to become effective as
soon as practicable after the expiration of the Offer without the Company
Stockholders Meeting in accordance with Section 253 of the DGCL.
(c) Rexam shall, as promptly as practicable following the date of
this Agreement, establish a record date for, duly call, give notice of,
convene and hold an extraordinary general meeting of its shareholders, which
Rexam shall endeavor to hold as promptly as practicable following the date of
this Agreement (the "REXAM SHAREHOLDERS MEETING") for the purpose of
obtaining the Rexam Shareholder Approval. In connection with the Rexam
Shareholders Meeting, Rexam shall in accordance with applicable law and stock
exchange regulations, as promptly as practicable following the date of this
Agreement, file with the London Stock Exchange a draft copy of its Class 1
Circular and, if required, listing particulars, (the "CIRCULAR") relating to
the matters to be considered at the Rexam Shareholders Meeting, respond
promptly to any comments made by the London Stock Exchange with respect to
the draft Circular and cause a definitive Circular to be mailed to its
shareholders as promptly as practicable following filing with the London
Stock Exchange. Neither the Board of Directors of Rexam nor any committee
thereof shall withdraw (or modify in a manner adverse to the Company) or
propose to withdraw (or modify in a manner adverse to the Company) the
approval or recommendation by such Board of Directors or any such committee
of this Agreement, the Offer or the Merger unless the Board of Directors (or
any such committee) determines in good faith (after consultation with outside
counsel) that its fiduciary obligations require it to do so.
(d) Rexam agrees to cause all shares of Company Common Stock
purchased pursuant to the Offer and all other shares of Company Common Stock
owned by Rexam or any subsidiary of Rexam to be voted in favor of the Company
Stockholder Approval.
SECTION 5.02. ACCESS TO INFORMATION; CONFIDENTIALITY. Except as
required by applicable law, the Company shall, and shall cause each of its
subsidiaries to, afford to Rexam, and to Rexam's officers, employees,
investment bankers, attorneys, accountants and other
advisors and representatives, reasonable and reasonably prompt access during
normal business hours during the period prior to the Effective Time or the
termination of this Agreement to all their respective properties, assets,
books, contracts, commitments, directors, officers, employees, attorneys,
accountants, auditors, other advisors and representatives and records and,
during such period, the Company shall, and shall cause each of its
subsidiaries to, make available to Rexam on a prompt basis (a) a copy of each
report, schedule, form, statement and other document filed or received by it
during such period pursuant to the requirements of domestic or foreign
(whether national, federal, state, provincial, local or otherwise) laws and
(b) all other information concerning its business, properties and personnel
as Rexam may reasonably request (including access to, but not copies of, the
work papers of PricewaterhouseCoopers LLP). Except as required by law, Rexam
will hold, and will direct its officers, employees, investment bankers,
attorneys, accountants and other advisors and representatives to hold, any
and all information received from the Company, directly or indirectly, in
confidence in accordance with the Confidentiality Agreement.
SECTION 5.03. COMMERCIALLY REASONABLE EFFORTS; NOTIFICATION. (a)
Upon the terms and subject to the conditions set forth in this Agreement,
each of the parties agrees to use all commercially reasonable efforts to
take, or cause to be taken, all actions, that are necessary, proper or
advisable to consummate and make effective the Offer, the Merger and the
other transactions contemplated by this Agreement and the Stockholders
Agreement, including using all commercially reasonable efforts to accomplish
the following: (i) the taking of all commercially reasonable acts necessary
to cause the conditions to the Offer and the Merger to be satisfied, (ii) the
obtaining of all necessary actions or nonactions, waivers, consents,
approvals, orders and authorizations from Governmental Entities and the
making of all necessary registrations, declarations and filings, including
the making of all filings under the HSR Act and the European antitrust laws
as promptly as reasonably practicable, and in any event, within 15 business
days after the date hereof, and (iii) the obtaining of all necessary
consents, approvals or waivers from third parties. In connection with and
without limiting the foregoing, the Company and its Board of Directors shall,
if any state
takeover statute or similar statute or regulation is or becomes applicable to
this Agreement, the Stockholders Agreement, the Offer, the Merger or any of
the other transactions contemplated hereby or thereby, use its commercially
reasonable efforts to ensure that the Offer, the Merger and the other
transactions contemplated by this Agreement or the Stockholders Agreement may
be consummated as promptly as practicable on the terms contemplated by this
Agreement or the Stockholders Agreement and otherwise to minimize the effect
of such statute or regulation on this Agreement or the Stockholders
Agreement, the Offer, the Merger and the other transactions contemplated
hereby or thereby. The Company and Rexam shall keep the other apprised of
the status of matters relating to the completion of the transactions
contemplated hereby and work cooperatively in connection with obtaining any
such waivers, consents, approvals, orders and authorizations, including,
without limitation: (i) promptly notifying the other of, and if in writing,
furnishing the other with copies of (or, in the case of material oral
communications, advise the other orally of) any communications from or with
any Governmental Entity with respect to the Offer, the Merger or any of the
other transactions contemplated by this Agreement, (ii) permitting the other
party to review and discuss in advance, and considering in good faith the
views of one another in connection with, any proposed written (or material
proposed oral) communication with any Governmental Entity, (iii) not
participating in any meeting with any Governmental Entity unless it consults
with the other party in advance and to the extent permitted by such
Governmental Entity gives the other party the opportunity to attend and
participate thereat, (iv) furnishing the other party with copies of all
correspondence, filings and communications (and memoranda setting forth the
substance thereof) between it and any Governmental Entity with respect to
this Agreement, the Offer and the Merger, and (v) furnishing the other party
with such necessary information and reasonable assistance as such other party
may reasonably request in connection with its preparation of necessary
filings or submissions of information to any Governmental Entity. The
Company and Rexam may, as each deems advisable and necessary, reasonably
designate any competitively sensitive material provided to the other under
this Section as "outside counsel only." Such materials and the information
contained therein shall be given only to the outside legal counsel of the
recipient and will not be disclosed by such outside counsel to employees,
officers, or directors of the recipient unless express permission is obtained
in advance from the source of the materials (the Company or Rexam, as
the case may be) or its legal counsel.
(b) The Company shall give prompt notice to Rexam, and Rexam shall
give prompt notice to the Company, of (i) any representation or warranty made
by it contained in this Agreement that is qualified as to materiality
becoming untrue or inaccurate in any respect or any such representation or
warranty that is not so qualified becoming untrue or inaccurate in any
material respect or (ii) the failure by it to comply with or satisfy in any
material respect any covenant, condition agreement to be complied with or
satisfied by it under this Agreement; PROVIDED that no such notification
shall affect the representations, warranties, covenants or agreements of the
parties or the conditions to the obligations of the parties under this
Agreement.
SECTION 5.04. COMPANY STOCK OPTIONS AND OTHER EQUITY BASED AWARDS.
(a) As soon as practicable following the date of this Agreement, the Board
of Directors of the Company (or, if appropriate, any committee administering
the Company Stock Plans) shall adopt such resolutions or take such other
actions (if any) as may be required to provide that (i) each Company Stock
Option, whether vested or unvested, shall be canceled effective immediately
after the earlier of the Specified Date if upon closing
of the Offer Rexam owns directly or indirectly at least 80% of the Company
Common Stock and the Effective Time, with the holder thereof becoming
entitled to receive an amount of cash equal to the product of (x) the excess,
if any, of (A) the Merger Consideration over (B) the exercise price per share
of Company Common Stock subject to such Company Stock Option, multiplied by
(y) the number of shares of Company Common Stock issuable pursuant to the
unexercised portion of such Company Stock Option less any tax withholding
required by the Code or any provision of state or local law and (ii) at the
earlier of the Specified Date if upon closing of the Offer Rexam owns
directly or indirectly at least 80% of the Company Common Stock and the
Effective Time, each deferred stock unit, conversion share, restricted stock
obligation and performance share under the Stock Compensation Conversion
Plan, Directors' Stock Plan, Directors' Pension Conversion Plan and 1999
Long-Term Stock Incentive Plan (collectively, the "STOCK AWARDS") shall fully
vest and become immediately payable or distributable and immediately
following the earlier of the Specified Date if upon closing
of the Offer Rexam owns directly or indirectly at least 80% of the Company
Common Stock and the Effective Time, each Stock Award shall be canceled and
the holder thereof shall be entitled to receive an amount in cash equal to
the product of (x) the Merger Consideration, multiplied by (y) the number of
shares of Company Common Stock subject to such Stock Award, less any tax
withholding required under the Code or any provision of state or local law.
All amounts payable pursuant to this Section 5.04 shall be paid no later than
two business days following the earlier of the Specified Date if upon closing
of the Offer Rexam owns directly or indirectly at least 80% of the Company
Common Stock and the Effective Time.
(b) The Company shall use its reasonable efforts to take all
actions determined to be necessary to effectuate the foregoing as mutually
agreed by Rexam and the Company.
(c) Prior to the Effective Time, the Company Board of Directors
(or, if appropriate, any committee administering the Company Stock Plans)
shall take or cause to be taken such actions as are required to cause (x) the
Company Stock Plans to terminate as of the Effective Time, subject to the
prior satisfaction of all obligations thereunder and (y) the provisions in
any other Company Benefit Plan providing for the issuance, transfer or grant
of any capital stock of the Company or any interest on or following the
Effective Time in respect of any capital stock of the Company to be deleted
as of the Effective Time.
SECTION 5.05. INDEMNIFICATION, EXCULPATION AND INSURANCE. (a)
Rexam and Sub agree that all rights to indemnification and exculpation from
liabilities for acts or omissions occurring at or prior to the Effective Time
now existing in favor of the current or former directors or officers of the
Company and its subsidiaries as provided in their respective certificates of
incorporation or by-laws (or similar organizational documents) shall be
assumed by the Surviving Corporation in the Merger, without further action,
at the Effective Time and shall survive the Merger and shall continue in full
force and effect in accordance with their terms.
(b) In the event that the Surviving Corporation or any of its
successors or assigns (i) consolidates with or merges into any other person
and is not the continuing or surviving corporation or entity of such
consolidation or merger or (ii) transfers or conveys all or substantially all
its properties and assets to any person, then, and in each
such case, Rexam shall cause proper provision to be made so that the
successors and assigns of the Surviving Corporation assume the obligations
set forth in this Section 5.05.
(c) For six years after the Effective Time, Rexam shall maintain
in effect the Company's current directors' and officers' liability insurance
covering each person currently covered by the Company's directors' and
officers' liability insurance policy for acts or omissions occurring prior to
the Effective Time on terms with respect to such coverage and amounts no less
favorable in any material respect to such directors and officers than those
of such policy as in effect on the date of this Agreement; PROVIDED that (i)
Rexam may substitute therefor policies of a reputable insurance company the
material terms of which, including coverage and amount, are no less favorable
in any material respect to such directors and officers than the insurance
coverage otherwise required under this Section 5.05(c) and (ii) in no event
shall Rexam be required to pay aggregate premiums for insurance under this
Section 5.05(c) in excess of 150% of the amount of the aggregate premiums
paid by the Company for 1999 for such purpose (which 1999 premiums are hereby
represented and warranted by the Company to be $630,000); PROVIDED FURTHER
that Rexam shall nevertheless be obligated to provide such coverage as may be
obtained for such 150% amount.
(d) The Company shall, to the fullest extent permitted under
applicable law and regardless of whether the Merger becomes effective,
indemnify and hold harmless, and, after the Effective Time, the Surviving
Corporation shall, to the fullest extent permitted under applicable law,
indemnify and hold harmless, each present and former director and officer of
the Company and each subsidiary of the Company (the "INDEMNIFIED PARTIES")
against all costs and expenses (including reasonable attorneys' fees),
judgments, fines, losses, claims, damages, liabilities and settlement amounts
paid in connection with any claim, action, suit, proceeding or investigation
(whether arising before or after the Effective Time), whether civil,
criminal, administrative or investigative, arising out of or pertaining to
any action or omission in their capacity as a director or officer occurring
before the Effective Time. In the event of any such claim, action, suit,
proceeding or investigation (whether arising before or after the Effective
Time), (i) the Company or the Surviving Corporation, as the case may be,
shall pay the reasonable fees and expenses of counsel selected by the
Indemnified Parties, which counsel shall be reasonably satisfactory to the
Company or the
Surviving Corporation, promptly after statements therefor are received and
(ii) the Company or the Surviving Corporation, as the case may be, shall
cooperate in the defense of any such matter; PROVIDED, HOWEVER, that neither
the Company nor the Surviving Corporation shall be liable for any settlement
effected without its written consent (which consent shall not be unreasonably
withheld); and PROVIDED FURTHER that neither the Company nor the Surviving
Corporation shall be obligated pursuant to this Section 5.05(d) to pay the
fees and expenses of more than one counsel (and one local counsel) for all
Indemnified Parties in any single action except to the extent that two or
more of such Indemnified Parties shall have conflicting interests in the
outcome of such action.
(e) The provisions of this Section 5.05 are intended to be for the
benefit of, and will be enforceable by, each indemnified party, his or her
heirs and his or her representatives.
SECTION 5.06. FEES AND EXPENSES. (a) Except as set forth in
Section 5.06(c), all fees and expenses incurred in connection with this
Agreement, the Offer, the Merger and the other transactions contemplated by
this Agreement shall be paid by the party incurring such fees or expenses,
whether or not the Merger is consummated.
(b) In the event that (i) (A) a Takeover Proposal shall have been
publicly proposed or publicly announced or any person has publicly announced
an intention (whether or not conditional and whether or not withdrawn) to
make a Takeover Proposal, (B) thereafter this Agreement is terminated by
either Rexam or the Company pursuant to Section 7.01(b)(i) and (C) within 12
months after such termination, the Company or any of its subsidiaries enters
into any Acquisition Agreement with respect to, or consummates, any Takeover
Proposal, (ii)(A) this Agreement is terminated by Rexam pursuant to Section
7.01(c)(2) and (B) within 12 months after such termination, the Company or
any of its subsidiaries enters into any Acquisition Agreement with respect
to, or consummates, any Takeover Proposal, or (iii) this Agreement is
terminated by Rexam pursuant to Section 7.01(c)(1) or by the Company pursuant
to Section 7.01(f), then the Company shall pay Rexam a fee equal to
$35,000,000 (the "TERMINATION FEE") by wire transfer of same day funds to an
account designated by Rexam
in the case of a payment as a result of any event referred to in Section
5.06(b)(i)(C) or 5.06 (b)(ii)(B), upon the first to occur of such events and
in the case of a payment as a result of any event referred to in Section
5.06(b)(iii), promptly, but in no event later than the date of such
termination. For purposes of Sections 5.06(b)(i)(C) and 5.06(b)(ii)(B), a
"Takeover Proposal" shall have the meaning assigned to such term in Section
4.02(b), except that references to "15%" in such definition shall be deemed
to be references to "50%". The parties acknowledge that the agreements
contained in this Section 5.06(b) and in Sections 5.06(c) and (d) are an
integral part of the transactions contemplated by this Agreement, and that,
without these agreements, the parties would not enter into this Agreement;
accordingly, if the party that is required to pay (the "PAYING PARTY") fails
promptly to pay the amounts due pursuant to this Section 5.06(b) or Sections
5.06(c) or (d), as applicable, and, in order to obtain such payment, the
other party commences a suit that results in a judgment against the Paying
Party for the amounts set forth in this Section 5.06(b) or Sections 5.06(c)
or (d), as applicable, the Paying Party shall pay to the other party interest
on the amounts set forth in this Section 5.06(b) or Sections 5.06(c) or (d),
as applicable, at the prime rate of Citibank, N.A. in effect on the date such
payment was required to be made.
(c) The Company shall reimburse Rexam and Sub for all their
expenses incurred in connection with this Agreement, the Offer, the Merger
and the other transactions contemplated by this Agreement (i) in the event
this Agreement is terminated in the circumstances described in Section
5.06(b)(i) or 5.06(b)(ii), upon the first to occur of the events referred to
in Section 5.06(b)(i)(C) or 5.06(b)(ii)(B), as applicable, or (ii) in the
event this Agreement is terminated in the circumstances described in Section
5.06(b)(iii), promptly, but in no event later than the date of such
termination; PROVIDED that the aggregate amount of such reimbursement
together with the Termination Fee shall not exceed $50,000,000 in the
aggregate. All payments made pursuant to this Section 5.06(c) shall be made
by wire transfer of same day funds to an account designated by Rexam.
(d) Rexam shall pay $15,000,000 to the Company (i) in the event
this Agreement is terminated by Rexam pursuant to Section 7.01(b)(iii),
promptly, but in no event later than the date of such termination, or (ii) in
the
event this Agreement is terminated by the Company pursuant to either Section
7.01(b)(iii) or 7.01(e)(ii), within two business days after such termination,
so long as, in either case, the Company is not in breach of any of its
representations, warranties or covenants contained in this Agreement, which
breach would give rise to a failure of a condition set forth in paragraph (d)
or (e) of Exhibit A. All payments made pursuant to this Section 5.06(d) shall
be made by wire transfer in immediately available funds to an account
designated by the Company.
SECTION 5.07. INFORMATION SUPPLIED. (a) The Company agrees that
none of the information included or incorporated by reference in (i) the
Offer Documents or the Schedule 14D-9 or any information statement to be
filed by the Company in connection with the Offer pursuant to Rule 14f-1
under the Exchange Act (the "INFORMATION STATEMENT") will, at the time it is
filed with the SEC or first published, sent or given to the Company's
stockholders, or at the time of any amendment or supplement thereof, or (ii)
the Proxy Statement will, at the date it is filed with the SEC or mailed to
the Company's stockholders, at the time of the Company Stockholders Meeting
or at the time of any amendment or supplement thereof, in each case, contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading, except that no covenant is made by the Company with respect to
statements made in the Proxy Statement, the Offer Documents, the Schedule
14D-9 or the Information Statement based on information supplied by Rexam or
Sub specifically for inclusion or incorporation by reference therein. The
Proxy Statement, Offer Documents, the Schedule 14D-9 and the Information
Statement will comply as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations promulgated
thereunder.
(b) Rexam and Sub agree that none of the information supplied or
to be supplied by Rexam or Sub specifically for inclusion in the Proxy
Statement, the Offer Documents, the Schedule 14D-9 or the Information
Statement will (except to the extent revised or superseded by amendments or
supplements contemplated hereby), at the date (i) the Offer Documents or the
Information Statement is
filed with the SEC or first published, sent or given to the Company
stockholders or (ii) the Proxy Statement is filed with the SEC or mailed to
the Company's stockholders or at the time of the Company Stockholders
Meeting, in each case, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under
which they are made, not misleading.
(c) The Company agrees that none of the information supplied by it
to Rexam specifically for inclusion in the Circular will, at the date it is
filed with the London Stock Exchange or mailed to the Rexam's shareholders,
at the time of the Rexam Shareholders Meeting or at the time of any amendment
or supplement thereof, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under
which they are made, not misleading, except that no covenant is made by the
Company with respect to statements made in the Circular based on information
supplied by Rexam or Sub specifically for inclusion or incorporation by
reference therein.
(d) Rexam and Sub agree that none of the information supplied or
to be supplied by Rexam or Sub specifically for inclusion in the Circular
will (except to the extent revised or superseded by amendments or supplements
contemplated hereby), at the date the Circular is filed with the London Stock
Exchange or mailed to the Rexam's shareholders or at the time of the Rexam
Shareholders Meeting, contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under
which they are made, not misleading.
SECTION 5.08. BENEFITS MATTERS. (a) From and after the
Specified Date, Rexam shall, and shall cause the Surviving Corporation to,
honor in accordance with their respective terms the Company Benefit Plans,
Company Benefit Agreements and all of the Company's other employee benefit,
compensation, employment, severance and termination agreements, plans and
policies, including any rights or benefits arising as a result of the
transactions contemplated by this Agreement (either alone or in combination
with any other event); it being agreed and acknowledged by Rexam that the
transactions contemplated by
this Agreement constitute a "change of control" for all purposes under all
such agreements, plans and policies.
(b) For all purposes under the employee benefit plans of Rexam and
its affiliates providing benefits to any current employees of the Company or
any of its subsidiaries (the "COMPANY EMPLOYEES") after the Effective Time,
each Company Employee shall be credited with his or her years of service with
the Company and its affiliates (and any predecessor entities thereof) before
the Effective Time, to the same extent as such Company Employee was entitled,
before the Effective Time (or if earlier, the Specified Date), to credit for
such service under any similar Company Benefit Plans, except for purposes of
benefit accrual under defined benefit pension plans to the extent giving such
credit would result in a duplication of accrued benefits in respect of the
same period of service. Rexam will, or will cause its subsidiaries to
provide each Company Employee with credit for any co-payments and deductibles
incurred prior to the Effective Time (or such earlier or later transition
date to new welfare benefits plans) for the calendar year in which the
Effective Time (or such earlier or later transition date) occurs, in
satisfying any applicable deductible or out-of-pocket requirements under any
welfare plans that the Company Employees are eligible to participate in after
the Effective Time.
(c) Rexam agrees that, during the period from the Specified Date
until December 31, 2001 (the "CONTINUATION PERIOD"), the Company Employees
shall continue to be provided with benefits under employee benefit plans that
are no less favorable in the aggregate to those provided to such employees by
the Company and its subsidiaries immediately prior to the Specified Date
(other than equity or equity-based programs). Notwithstanding anything to
the contrary contained herein, during the Continuation Period , Rexam shall,
or shall cause the Surviving Corporation to, honor and continue the Company's
severance plans including the severance benefits plan enhancements thereto as
in effect on the date hereof, without amendment or modification.
(d) At the Effective Time, Rexam and the Company will establish a
retention bonus pool in the amount of approximately $13,000,000 to be
allocated and paid as set forth on Section 5.08(d) of the Company Disclosure
Schedule.
(e) Nothing contained in this Section 5.08 or elsewhere in this
Agreement shall be construed to prevent the termination of employment of any
individual Company Employee or, subject to the limitations of Sections
5.08(a), (b), (c) and (d), any change in the employee benefits available to
any individual Company Employee or the amendment or termination of any
particular Company Benefit Plan, Company Benefit Agreement or other employee
benefit plan, program, policy or arrangement to the extent permitted by its
terms as in effect immediately prior to the Specified Date.
SECTION 5.09. OPTION TO PURCHASE IDENTIFIED ASSETS. At Rexam's
option, Rexam or one or more of its subsidiaries may purchase immediately
preceding the purchase of shares of the Company Common Stock pursuant to the
Offer, at or prior to which time the Minimum Tender Condition shall have been
satisfied, all other conditions of the Offer shall be deemed satisfied or
waived and Rexam shall have unconditionally committed to close the Offer, any
of the assets of the Company or its subsidiaries; PROVIDED that the
completion of the Offer shall be a condition subsequent to any such purchase.
To exercise this option, Rexam must notify the Company in writing and such
notification will identify the assets to be purchased. Rexam or its
affiliates will purchase the assets by providing to the person transferring
the assets consideration equal to the purchased asset's mutually agreed fair
market value. Such consideration may take the form of cash, notes,
securities, assumption of liabilities or such other forms as determined in
Rexam's sole discretion.
SECTION 5.10. PUBLIC ANNOUNCEMENTS. Rexam and Sub, on the one
hand, and the Company, on the other hand, shall, to the extent reasonably
practicable, consult with each other before issuing, and give each other a
reasonable opportunity to review and comment upon, any press release or other
public statements with respect to this Agreement, the Offer, the Merger and
the other transactions contemplated by this Agreement. The parties agree
that the initial press release to be issued with respect to the transactions
contemplated by this Agreement shall be in the form heretofore agreed to by
the parties.
SECTION 5.11. STOCKHOLDER AGREEMENT LEGEND. The Company will
inscribe upon any certificate representing Subject Shares (as defined in the
Stockholders Agreement) that are submitted to the Company for such purpose the
following legend: "THE SHARES OF COMMON STOCK, PAR VALUE $0.01 PER SHARE, OF
THE COMPANY, REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A STOCKHOLDER
AGREEMENT DATED AS OF MARCH 31, 2000, AND THE TRANSFER AND VOTING THEREOF ARE
SUBJECT TO THE TERMS OF SUCH AGREEMENT. COPIES OF SUCH AGREEMENT MAY BE
OBTAINED AT THE PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY."; and the Company
will return such certificate containing such inscription to the Specified
Stockholder within three business days following the Company's receipt
thereof.
SECTION 5.12. DIRECTORS. (a) Promptly upon the acceptance for
payment of, and payment by Sub for, any shares of Company Common Stock
pursuant to the Offer, Sub shall be entitled to designate such number of
directors on the Board of Directors of the Company as will give Sub, subject
to compliance with Section 14(f) of the Exchange Act, representation on the
Board of Directors of the Company equal to that number of directors, rounded
up to the next whole number, which is the product of (a) the total number of
directors on the Board of Directors of the Company (giving effect to the
directors elected pursuant to this sentence) multiplied by (b) the percentage
that (i) such number of shares of Company Common Stock so accepted for
payment and paid for by Sub bears to (ii) the number of such shares
outstanding, and the Company shall, at such time, cause Sub's designees to be
so elected; PROVIDED, HOWEVER, that in the event that Sub's designees are
appointed or elected to the Board of Directors of the Company, until the
Effective Time the Board of Directors of the Company shall have at least
three directors who are Directors on the date of this Agreement and who are
not officers of the Company or representatives of any affiliates of the
Company (the "INDEPENDENT DIRECTORS"); and PROVIDED FURTHER that, in such
event, if the number of Independent Directors shall be reduced below three
for any reason whatsoever, any remaining Independent Directors (or
Independent Director, if there shall be only one remaining) shall be entitled
to designate persons to fill such vacancies who shall be deemed to be
Independent Directors for purposes of this Agreement or, if no Independent
Directors then remain, the other directors shall designate three persons to
fill such vacancies who are not officers, stockholders or affiliates of the
Company, Rexam or Sub, and such persons shall be deemed to be Independent
Directors for purposes of this Agreement. Subject to applicable law, the
Company shall take all action requested by Rexam necessary to effect any such
election, including mailing to its stockholders the Information Statement
containing the information required by
Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, and
the Company shall make such mailing with the mailing of the Schedule 14D-9
(provided that Sub shall have provided to the Company on a timely basis all
information required to be included in the Information Statement with respect
to Sub's designees). In connection with the foregoing, the Company shall
promptly, at the option of Sub, either increase the size of the Board of
Directors of the Company or obtain the resignation of such number of its
current directors as is necessary to enable Sub's designees to be elected or
appointed to the Board of Directors of the Company as provided above.
(b) Prior to the Effective Time, the Company shall cause each
member of its Board of Directors, other than Sub's designees, to execute and
deliver a letter effectuating his or her resignation as a director of such
Board of Directors effective immediately prior to the Effective Time.
ARTICLE VI
CONDITIONS PRECEDENT
SECTION 6.01. CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE
MERGER. The obligation of each party to effect the Merger is subject to the
satisfaction or waiver on or prior to the Closing Date of the following
conditions:
(a) STOCKHOLDER APPROVAL. The Company Stockholder Approval, if
required by applicable law, and the Rexam Shareholder Approval shall have
been obtained.
(b) ANTITRUST. (i) Any requisite waiting period (and any extension
thereof) applicable to the Merger under the HSR Act and any other
applicable competition, merger, control, antitrust or similar law or
regulation shall have been terminated or shall have expired and (ii) the EC
Commission shall have declared, in terms, taken together with those in
clause (iii)(B) below, that are not materially commercially unreasonable in
the aggregate, that the concentration is compatible with the common market
pursuant to Articles 6(1)(b) or
Article 8(2) of Council Regulation (EEC) No. 4064/89 (as amended by Council
Regulation (EC) Xx. 0000/00) (xxx "XXXXXXXXXX") xxx, (xxx) in the event
that a request under Article 9(2) of the Regulation has been made by one or
more European Union or EFTA states, (A) the European Commission shall have
indicated that it does not intend to refer the proposed acquisition, or any
aspect thereof, to a competent authority of such state in accordance with
Article 9 of the Regulation or (B) if such referral is made, the state(s)
shall have resolved their investigations, in terms, taken together with
those in clause (ii) above, that are not materially commercially
unreasonable in the aggregate, or any applicable waiting period(s) shall
have expired.
(c) NO INJUNCTIONS OR LEGAL RESTRAINTS. No temporary restraining
order, preliminary or permanent injunction or other order or decree issued
by any court of competent jurisdiction or other legal restraint or
prohibition (collectively, "LEGAL RESTRAINTS") that has the effect of
preventing the consummation of the Merger shall be in effect; PROVIDED,
HOWEVER, that each of the parties shall have used commercially reasonable
efforts to prevent the entry of any such injunction or other order and to
appeal as promptly as practicable any injunction or other order that may be
entered.
(d) PURCHASE OF SHARES IN THE OFFER. Sub shall have previously
accepted for payment and paid for the shares of Company Common Stock
pursuant to the Offer.
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
SECTION 7.01. TERMINATION. This Agreement may be terminated, and
the Offer and the Merger contemplated hereby may be abandoned, at any time
prior to the Effective Time, whether before or after the Company Stockholder
Approval or Rexam Shareholder Approval has been obtained:
(a) by mutual written consent of Rexam, Sub and the Company;
(b) by either Rexam or the Company:
(i) if Sub shall not have accepted for payment any shares of
Company Common Stock
pursuant to the Offer prior to October 25, 2000; PROVIDED that the
right to terminate this Agreement pursuant to this Section 7.01(b)(i)
shall not be available to any party whose breach of Agreement has been
a principal reason the Offer has not been consummated by such date;
(ii) if any Governmental Entity shall have issued an order,
injunction or other decree or ruling or taken any other action
permanently enjoining, restraining or otherwise prohibiting the
acceptance for payment of, or payment for the Company Common Stock
pursuant to the Offer or the Merger and such order, injunction, decree
or ruling or other action shall have become final and nonappealable;
or
(iii) if the Rexam Shareholder Approval shall not have been
obtained at the Rexam Shareholders Meeting duly convened therefor or
at any adjournment or postponement thereof;
(c) by Rexam (1) if the Board of Directors of the Company or any
committee thereof shall have (i) withdrawn or modified the recommendation
of such Board of Directors of this Agreement, the Offer or the Merger or
(ii) failed to confirm its recommendation to the Company's stockholders
that they accept the Offer and give the Company Stockholder Approval within
four business days after a written request by Rexam that it do so if such
request is made following the making of a Takeover Proposal, PROVIDED that
Rexam may not make more than one such request in respect of a Takeover
Proposal unless such proposal has been materially modified or (2) if
another person, other than the Specified Stockholder, shall have acquired
more than 15% of the outstanding shares of Company Common Stock;
(d) prior to the Specified Date by Rexam (i) if the Company shall
have breached any of its representations, warranties or covenants contained
in this Agreement, which breach would give rise to the failure of a
condition set forth in paragraph (d) or (e) of Exhibit A which breach has
not been or is incapable of being cured by the Company within 20 business
days after its receipt of written notice
thereof from Rexam, or (ii) if any suit, action or proceeding set forth in
paragraph (a) of Exhibit A shall have prevailed and become final and
nonappealable;
(e) prior to the Specified Date by the Company (i) if any of Rexam's
representations and warranties contained in this Agreement shall not be
true and correct, except for such failures to be true and correct that
(without giving effect to any limitation as to "materiality" set forth
therein), individually or in the aggregate, would not reasonably be
expected to have a Rexam material adverse effect, which failure has not
been or is incapable of being cured by Rexam within 20 business days after
its receipt of written notice thereof from the Company, or (ii) if the
Board of Directors of Rexam or any committee thereof shall have withdrawn
or modified the recommendation of such Board of Directors of this
Agreement, the Offer or the Merger; or
(f) prior to the Specified Date by the Company in accordance with
Section 4.02(b) subject to compliance by the Company with the notice
provisions therein and the Termination Fee and expense reimbursement
provisions of Section 5.06.
SECTION 7.02. EFFECT OF TERMINATION. In the event of termination
of this Agreement by either the Company or Rexam as provided in Section 7.01,
this Agreement shall forthwith become void and have no effect, without any
liability or obligation on the part of Rexam, Sub or the Company, other than
the provisions of Section 3.01(q), the last sentence of Section 5.02, Section
5.06, this Section 7.02 and Article VIII; PROVIDED that no such termination
shall relieve any party hereto from any liability or damages resulting from a
wilful breach by a party of any of its representations, warranties or
covenants set forth in this Agreement.
SECTION 7.03. AMENDMENT. This Agreement may be amended by the
parties hereto at any time, whether before or after the Company Stockholder
Approval or the Rexam Shareholder Approval has been obtained; PROVIDED that,
after the purchase of shares of Company Common Stock pursuant to the Offer,
no amendment shall be made which decreases the Merger Consideration and,
after the Company Stockholder Approval or the Rexam Shareholder Approval has
been obtained, there shall be made no amendment that by law
requires further approval by stockholders or shareholders of the parties
without the further approval of such stockholders or shareholders. This
Agreement may not be amended except by an instrument in writing signed on
behalf of each of the parties hereto. Following the election or appointment
of Sub's designees pursuant to Section 5.12 and prior to the Effective Time,
the affirmative vote of a majority of the Independent Directors then in
office shall be required by the Company to (i) amend or terminate this
Agreement by the Company, (ii) exercise or waive any of the Company's rights
or remedies under this Agreement or (iii) extend the time for performance of
Rexam and Sub's respective obligations under this Agreement.
SECTION 7.04. EXTENSION; WAIVER. At any time prior to the
Effective Time, the parties may (a) extend the time for the performance of
any of the obligations or other acts of the other parties, (b) waive any
inaccuracies in the representations and warranties contained herein or in any
document delivered pursuant hereto or (c) waive compliance with any of the
agreements or conditions contained herein; PROVIDED that after the Company
Stockholder Approval or the Rexam Shareholder Approval has been obtained,
there shall be made no waiver that by law requires further approval by
stockholders or shareholders of the parties without the further approval of
such stockholders or shareholders. Any agreement on the part of a party to
any such extension or waiver shall be valid only if set forth in an
instrument in writing signed on behalf of such party. The failure or delay by
any party to this Agreement to assert any of its rights under this Agreement
or otherwise shall not constitute a waiver of such rights nor shall any
single or partial exercise by any party to this Agreement of any of its
rights under this Agreement preclude any other or further exercise of such
rights or any other rights under this Agreement.
ARTICLE VIII
GENERAL PROVISIONS
SECTION 8.01. NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES. None
of the representations and warranties in this Agreement or in any instrument
delivered pursuant to this Agreement shall survive the Effective Time. This
Section 8.01 shall not limit any covenant or agreement of the parties which
by its terms contemplates performance after the Effective Time.
SECTION 8.02. NOTICES. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be deemed given
if delivered personally or sent by overnight courier (providing proof of
delivery) to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice):
if to Rexam or Sub, to:
Rexam PLC
0 Xxxxxxxx
Xxxxxx, XX0X 0XX
Xxxxxx Xxxxxxx
Attention: Xxxxx Xxxxxx, Esq.
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, III, Esq.
Xxxxx X. Xxxxx, Esq.
and
Xxxxx & Overy
Xxx Xxx Xxxxxx
Xxxxxx, XX0X0XX
Xxxxxx Xxxxxxx
Attention: Xxxx Wippell, Esq.
if to the Company, to:
American National Can Group, Inc.
0000 Xxxx Xxxx Xxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Esq.
Xxxxx X. Xxxxxxx, Esq.
SECTION 8.03. DEFINITIONS. For purposes of this Agreement:
(a) an "AFFILIATE" of any person means another person that directly or
indirectly, through one or more intermediaries, controls, is controlled by,
or is under common control with, such first person;
(b) "MATERIAL ADVERSE EFFECT" means any state of facts, change,
development, effect, event, condition or occurrence that is materially
adverse to the business, assets, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole, other
than adverse changes resulting from conditions, circumstances or changes
affecting the beverage packaging industry in general and not the Company
specifically;
(c) "PERSON" means an individual, corporation, partnership, joint
venture, association, trust, limited liability company, Governmental
Entity, unincorporated organization or other entity;
(d) "REXAM MATERIAL ADVERSE EFFECT" means any state of facts, change,
development, effect, event, condition or occurrence that is materially
adverse to the business, assets, financial condition or results of
operations of Rexam and its subsidiaries, taken as a whole, other than
adverse changes resulting from conditions, circumstances or changes
affecting the beverage packaging industry in general and not Rexam
specifically, or, with respect to Section 3.02(d), that prevents or
materially impedes or delays the consummation of the Offer, the Merger or
the other transactions contemplated by this Agreement.
(e) "SIGNIFICANT SUBSIDIARY" shall have the meaning set forth in
Rule 1-02 of Regulation S-X of the Exchange Act; and
(f) a "SUBSIDIARY" of any person means another person, an amount of
the voting securities, other voting ownership or voting partnership
interests of which is sufficient to elect at least a majority of its Board
of Directors or other governing body (or, if there are no such voting
interests, 50% or more of the equity interests of which) is owned directly
or indirectly by such first person.
SECTION 8.04. INTERPRETATION. When a reference is made in this
Agreement to a Section, Subsection or Schedule, such reference shall be to a
Section or Subsection of, or a Schedule to, this Agreement unless otherwise
indicated. The table of contents and headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the words "include", "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation". The words "hereof", "herein" and "hereunder"
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement. The
term "or" is not exclusive. The definitions contained in this Agreement are
applicable to the singular as well as the plural forms of such terms. Any
agreement or instrument defined or referred to herein or in any agreement or
instrument that is referred to herein means such agreement or instrument as from
time to time amended, modified or supplemented. References to a person are also
to its permitted successors and assigns.
SECTION 8.05. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other parties.
SECTION 8.06. ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This
Agreement (a) constitutes the entire agreement, and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter of this Agreement, other than the Confidentiality
Agreement and (b) except for the provisions of Sections 5.04, 5.05 and 5.08(d)
and the schedule thereto, is not intended to confer upon any person
other than the parties hereto (and their respective successors and assigns)
any rights or remedies.
SECTION 8.07. GOVERNING LAW. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Delaware,
regardless of the laws that might otherwise govern under applicable
principles of conflicts of laws thereof.
SECTION 8.08. ASSIGNMENT. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned, in whole or in
part, except by operation of law, by any of the parties hereto without the
prior written consent of the other parties hereto, except that Sub may
assign, in its sole discretion, any of or all its rights, interests and
obligations under this Agreement to Rexam or to any direct or indirect wholly
owned subsidiary of Rexam, but no such assignment shall relieve Sub of any of
its obligations hereunder. Subject to the preceding sentence, this Agreement
shall be binding upon, inure to the benefit of and be enforceable by, the
parties hereto and their respective successors and assigns.
SECTION 8.09. ENFORCEMENT. The parties agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of this Agreement in any court
of the United States located in the State of Delaware or in any Delaware
state court, this being in addition to any other remedy to which they are
entitled at law or in equity. In addition, each of the parties hereto (a)
consents to submit itself to the personal jurisdiction of any court of the
United States located in the State of Delaware or of any Delaware state court
in the event any dispute arises out of this Agreement or the transactions
contemplated by this Agreement, (b) agrees that it will not attempt to deny
or defeat such personal jurisdiction by motion or other request for leave
from any such court and (c) agrees that it will not bring any action relating
to this Agreement or the transactions contemplated by this Agreement in any
court other than a court of the United States located in the State of
Delaware or a Delaware state court.
SECTION 8.10. SEVERABILITY. If any term or other provision of
this Agreement is invalid, illegal or incapable
of being enforced by any rule of law or public policy, all other conditions
and provisions of this Agreement shall nevertheless remain in full force and
effect. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of
the parties as closely as possible to the fullest extent permitted by
applicable law in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled to the extent possible.
IN WITNESS WHEREOF, Rexam, Sub and the Company have caused this
Agreement to be signed by their respective officers thereunto duly
authorized, all as of the date first written above.
REXAM PLC,
by /s/ XXXX XXXXXXXXX
Name: Xxxx Xxxxxxxxx
Title: Chief Executive
REXAM ACQUISITION SUBSIDIARY INC.,
by /s/ XXXXX X. XXXXX
Name: Xxxxx X. Xxxxx
Title: President
AMERICAN NATIONAL CAN GROUP, INC.,
by /s/ XXXXXX XXXXXXX
Name: Xxxxxx Xxxxxxx
Title: Chairman and Chief Executive Officer
EXHIBIT A
CONDITIONS OF THE OFFER
Notwithstanding any other term of the Offer or this Agreement, Sub
shall not be required to accept for payment or, subject to any applicable
rules and regulations of the SEC, including Rule 14e-l(c) under the Exchange
Act (relating to Sub's obligation to pay for or return tendered shares of
Company Common Stock promptly after the termination or withdrawal of the
Offer), to pay for any shares of Company Common Stock tendered pursuant to
the Offer unless (i) there shall have been validly tendered and not withdrawn
prior to the expiration of the Offer that number of shares of Company Common
Stock which would represent at least a majority of the outstanding Company
Common Stock (determined on a fully diluted basis for all outstanding stock
options and any other rights to acquire Company Common Stock on the date of
purchase), (the "MINIMUM TENDER CONDITION"), (ii) any requisite waiting
period under the HSR Act (and any extension thereof) applicable to the
purchase of shares of Company Common Stock pursuant to the Offer or to the
Merger, (iii) any other requisite waiting periods under any other applicable
material competition, merger, control, antitrust or similar law or regulation
shall have been terminated or shall have expired, (iv) the EC Commission
shall have declared, in terms, taken together with those in clause (v)(B)
below, that are not materially commercially unreasonable in the aggregate,
that the concentration is compatible with the common market pursuant to
Articles 6(1)(b) or Article 8(2) of the Regulation, (v) in the event that a
request under Article 9(2) of the Regulation has been made by one or more
European Union or EFTA states, (A) the European Commission shall have
indicated that it does not intend to refer the proposed acquisition, or any
aspect thereof, to a competent authority of such state in accordance with
Article 9 of the Regulation or (B) if such referral is made, the state(s)
shall have resolved their investigations, in terms, taken together with those
in clause (iv) above, that are not materially commercially unreasonable in
the aggregate, or any applicable waiting period(s) shall have expired, and
(vi) the Rexam Shareholder Approval shall have been obtained. Furthermore,
notwithstanding any other term of the Offer or this Agreement, Sub shall not
be required to accept for payment or, subject as aforesaid, to pay for any
shares of Company Common Stock not theretofore accepted for payment or paid
for, and, subject to this Agreement, may terminate or amend the Offer, with
the consent of the
Company or if, immediately prior to the applicable expiration of the Offer,
any of the following conditions exists:
(a) there shall be pending or formally threatened any suit, action or
proceeding by any Governmental Entity, (i) challenging the acquisition by
Rexam or Sub of any shares of Company Common Stock, seeking to restrain or
prohibit consummation of the Offer or the Merger, or seeking to place
limitations on the ownership of shares of Company Common Stock (or shares
of common stock of the Surviving Corporation) by Rexam or Sub, (ii) seeking
to prohibit or limit the ownership or operation by the Company or Rexam and
their respective subsidiaries of any material portion of the business or
assets of the Company or Rexam and their respective subsidiaries taken as a
whole, or to compel the Company or Rexam and their respective subsidiaries
to dispose of or hold separate any material portion of the business or
assets of the Company or Rexam and their respective subsidiaries taken as a
whole, as a result of the Offer, the Merger or any of the other
transactions contemplated by this Agreement or the Stockholders Agreement,
(iii) seeking to prohibit Rexam or any of its subsidiaries from effectively
controlling in any material respect the business or operations of the
Company or Rexam and subsidiaries taken as a whole, or (iv) which otherwise
is reasonably expected to have a material adverse effect; in each of
(i) through (iv) above, subject to the obligations set forth in
Section 5.03 of this Agreement;
(b) any Legal Restraint that has the effect of preventing the purchase
of shares of Company Common Stock pursuant to the Offer or the Merger shall
be in effect; PROVIDED, HOWEVER, that each of the parties shall have used
commercially reasonable efforts to prevent the entry of any such injunction
or other order and to appeal as promptly as practicable any injunction or
other order that may be entered;
(c) except as set forth in the Company Disclosure Schedule or in the
Filed SEC Documents, since the date of this Agreement, there shall have
been any state of facts, change, development, effect, event, condition or
occurrence that, individually or in the aggregate,
constitutes or would reasonably be expected to have, a material adverse
effect;
(d) the representation and warranty of the Company contained in
Section 3.01(c) of this Agreement shall not be true and correct in all
material respects, or the other representations and warranties of the
Company contained in this Agreement shall not be true and correct, except
for such failures to be true and correct that (without giving effect to any
limitation as to "materiality" or material adverse effect set forth
therein), individually and in the aggregate, would not reasonably be
expected to have a material adverse effect;
(e) the Company shall have failed to perform in any material respect
any material obligation required to be performed by it under this Agreement
at or prior to the Specified Date;
(f) Rexam shall not have obtained all consents, approvals,
authorizations, qualifications and orders of all Governmental Entities
legally required in connection with this Agreement and the transactions
contemplated by this Agreement other than any such consents, approvals,
authorizations, qualifications and orders, the failure of which to obtain,
individually and in the aggregate, would not reasonably be expected to have
a material adverse effect; or
(g) this Agreement shall have been terminated in accordance with its
terms,
which, in the reasonable judgment of Sub or Rexam, in any such case, and
regardless of the circumstances giving rise to any such condition (including
any action or inaction by Rexam or any of its affiliates), makes it
inadvisable to proceed with such acceptance for payment or payment.
The foregoing conditions are for the sole benefit of Sub and Rexam
and may be asserted by Sub or Rexam regardless of the circumstances giving
rise to such condition or may be waived by Sub and Rexam in whole or in part
at any time and from time to time in their reasonable discretion. The
failure by Rexam, Sub or any other affiliate of Rexam at any time to exercise
any of the foregoing rights shall not be deemed a waiver of any such right;
the waiver of any such right with respect to particular facts and
circumstances shall not be deemed a
waiver with respect to any other facts and circumstances and each such right
shall be deemed an ongoing right that may be asserted at any time and from
time to time.
The terms in this Exhibit A that are defined in the attached merger
agreement have the meanings set forth therein.
