Exhibit 10.16
INVESTMENT CERTIFICATE TRANSFER AGREEMENT
BY AND BETWEEN THE UNDERSIGNED
CONTINENTAL CAN COMPANY, INC. An American Company Having its registered office
at 301 Xxxxxxx 7 Corporate Park, X.X. XXX 0000 Xxxxxxx, Xxxxxxxxxxx 00000
Registered with the State of Delaware (USA)
Of the First Part
Hereinafter designated <>
AND:
1 - CITICORP CAPITAL INVESTORS EUROPE LIMITED An American Company having its
registered office at New Castle Corporate Commons Operations Xxx Xxxxxxxx, Xxx
Xxxx'x Xxx, Xxx Xxxxxx, Xxxxxxxx (19720-USA) Registered with the State of
Delaware (USA)
Of the Second Part
Hereinafter designated <>
PREAMBLE
1./ The Transferee and the Transferor are shareholders or owners or Investment
Certificates of the following company:
FEREMBAL
A French Societe Anonyme with a capital of 40,830,000 FF Having its registered
office at Xxxxxxxxx xx Xxxxxxx XxXxxxx 00000 Xxxxxx (XXXXXX) Enrolled with the
Register of Comerce and Companies of Nanterre under No B 334 384 054 Hereinafter
designated <>
The capitol of the Company is comprised of:
-300.830 Shares, divided in:
-204,822 Shares of Category A, and
-96,008 Shares of Category B
-and 100,000 Investment Certificates.
2./ The Transferor is the owner of 90,000 Investment Certificates of the
Company.
3./ The Transferor expressly sets forth that it is also the beneficiary of a
Promise to Sell for the 90,000 Voting Rights Certificates (Certificats De Droit
de Vote) corresponding to the 90,000 Investment Certificates (Certificats
d'Investissement) that it owns.
The Voting Rights Certificates and the Investment Certificates refer to
Certificats de Droit de Vote and Certificats d'Investissement, respectively, as
these terms are defined in the French Commercial Companies Act of July 24, 1996
(Articles 283-1 to 283-5).
These Voting Rights Certificates are, as of this date, owned by:
- The Transferee,
- Societe Generale,
- First Britannia Mezzanine N.V.,
- and C.I.B.C.
Various other shareholders of the Company own the remaining Voting Rights
Certificates.
The benefit of the promise, granted by various other shareholders of the
Company, can be exercised at any time, with a price of 0.01 FF for the Voting
Rights Certificate thus acquired.
The Transferor and the Transferee have agreed to implement the transfer of
90,000 Investment Certificates of the Company between the Transferor and the
Transferee.
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AGREEMENT
ARTICLE 1: TRANSFER
The Transferor agrees to sell and transfer to the Transferee, who agrees to
purchase, all of the 90,000 (NINETY THOUSAND) Investment Certificates that it
owns in the legal capital of the Company.
The Transferor agrees nevertheless to use its best effort to reconstitute,
before the transfer of the Investment Certificates, the 90,000 corresponding
Shares, at present split into Investment Certificates and Voting Right
Certificates.
The parties expressly and irrevocably agree by the present contract that the
perfect the transfer of the Investment Certificates of the Company, and as the
case may be, the Shares, shall be postponed to the day of the payment of the
Base Price as defined in Article 2.1 hereafter, of the acquisition by the
Transferee, payment of which shall occur no later than April 30, 1998.
On the date of the payment of the price:
- the Transferor shall submit to the Transferee the Transfer Orders,
duly signed, for the Investment Certificates, and as the case may be,
the Shares.
- the Transferee shall become the owner of the transferred Investment
Certificates of the Company, and as the case may be, the Shares, with
all of the rights and obligations so attached. With regards to the
pecuniary rights attached to the Investment Certificates and Shares of
the Company, the Transferee shall also become the pecuniary owner of
these, with the rights to all financial distributions or dividends, as
of January 1, 1998.
However, if the payment of the Base Price as defined in Article 2.1 hereafter,
for the Investment Certificates of the Company, and as the case may be, the
Shares, and, as a result, the transfer of these Investment Certificates and/or
Shares, has not occurred on or including April 30, 1998, the present contract
shall be null and void and the Transferee shall owe the Transferor the following
contractual penalties:
- before May 15, 1998, the Transferee shall pay the amount of 4,464,981
FF (FOUR MILLION FOUR HUNDRED SIXTY FOUR THOUSAND NINE HUNDRED EIGHTY
ONE FRENCH FRANCS) to the Transferor,
ARTICLE 2: PRICE
2.1: Base Price
The Investment Certificates, and as the case may be, the Shares, shall be
transferred for a base unit price of 898.13 FF (EIGHT HUNDRED NINETY EIGHT
FRENCH FRANCS AND THIRTEEN CENTIMES).
This unit price corresponds to the value, as estimated by the parties, of all
the legal capital of the Company, for a total of 360,000,000 FF (THREE HUNDRED
SIXTY MILLION FRENCH FRANCS), according to their joint estimate.
As a result, on the date set forth for the payment of the price and the transfer
of the Investment Certificates, and as the case may be, the Shares:
- the Transferor shall receive a sum of 80,831,700.00 FF (EIGHTY MILLION
EIGHT HUNDRED THIRTY ONE THOUSAND SEVEN HUNDRED FRENCH FRANCS) in
exchange for the transfer of its 90,000 (NINETY THOUSAND) Investment
Certificates of the Company, as the case may be, reconstituted wholly or
in part, in as many Shares.
2.2: Supplemental Price
As the case may be, the payment of a supplemental price (hereinafter <>) shall occur in the following situations:
2.2.1: Prior Causes (<>) of the Supplemental Price
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0.0.0.0: Transfer
The Supplemental Price shall be owed by the Transferee to the Transferor if:
- before or including June 30, 1999,
- the Transferee sells to one o more third parties, pursuant to one or
more transfers,
- Shares and/or Investment Certificates of the Company, that it owns,
- at a unit price higher than the base unit price, as set forth in
Article 2.1 above, of 898.13 FF (EIGHT HUNDRED NINETY-EIGHT FRENCH
FRANCS AND THIRTEEN CENTIMES) per Share and Investment Certificate of
the Company.
0.0.0.0: Exchange
The Supplemental Price shall be owed by the Transferee to the Transferor if:
- before or including June 30, 1999,
- the Transferee exchanges with one or more third parties, pursuant to
one or more transfers,
- Shares and/or Investment Certificates of the Company, that it owns,
- at a unit exchange value higher than the base unit price, as set forth
in Article 2.1 above, of 898.13 FF (EIGHT HUNDRED NINETY-EIGHT FRENCH
FRANCS AND THIRTEEN CENTIMES) per Share and Investment Certificates of
the Company.
2.2.1.3 - Listing
The Supplemental Price shall be owed by the Transferee to the Transferor if:
- before or including June 30, 1999,
- the Shares and/or Investment Certificates of the Company, wholly or in
part, are listed on a regulated market (marche reglemente) of the Paris
Stock Exchange,
- and their initial listing price is higher than the base unit price, as
set forth in Article 2.1 above, of 898.13 FF (EIGHT HUNDRED NINETY-EIGHT
FRENCH FRANCS AND THIRTEEN CENTIMES) per Share and Investment
Certificate of the Company.
0.0.0.0: Capital increase/listing
The Supplemental Price shall be owed by the Transferee to the Transferor if:
- before or including June 30, 1999,
- the Company increases its share capital, and the resulting Shares
and/or Investment Certificates of the Company, wholly or in part, are
listed on a regulated market (marche reglemente) of the Paris Stock
Exchange,
- and their initial listing price is higher than the base unit price, as
set forth in Article 2.1 above, of 898.13 FF (EIGHT HUNDRED NINETY-EIGHT
FRENCH FRANCS AND THIRTEEN CENTIMES) per Share and Investment
Certificate of the Company.
2.2.2: Amount of Supplemental Price
The amount of the Supplemental Price owed to the Transferor shall be calculated
as follows, for each transfer, exchange and/or listing in a manner set forth in
Article 2.2.1 above:
SP = (SUP - BUP) x [90.000/SC x TE]
With:
SP = Supplemental Price for the Transferor
SUP= subsequent unit price per Share and Investment Certificate of the
Company:
- paid to the Transferee following a transfer of the type set forth
in Article 2.2.1.1 above, or
- calculated following an exchange of the type set forth in Article
2.2.1.2 above, or
- equal to the initial listing price as set forth in Article 2.2.1.3
and 2.2.1.4 above.
BUP = unit base price set forth in the present contract of 898.13 (EIGHT
HUNDRED NINETY-EIGHT FRENCH FRANCS AND THIRTEEN CENTIMES) PER Share and
Investment Certificate of the Company
SC = number of Shares and Investment Certificates of the Company acquired
by the Transferee:
- from the Transferor after the completion of the operations set
forth in the present contract, and
- from the minority shareholders of the Company, between this day
and April 30, 1998 included, and
- from the owners of Investment Certificates of the Company, between
this day and April 30, 1998 included.
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It is specified that SC cannot exceed 143,921 (ONE HUNDRED AND FORTH THREE
THOUSAND NINE HUNDRED AND TWENTY ONE), this number corresponding to the
Shares and Investment Certificates of the Company which are not held at
present by the Transferee.
TE = number of Shares and Investment Certificates of the Company:
- transferred to the Transferee following a transfer of the type set
forth in Article 2.2.1.1 above, or
- exchanged following an exchange of the type set forth in
Article 2.2.1.2 above, or
- listed as set forth in Article 2.2.1.3 and 2.2.1.4 above.
It is expressly stipulated for the calculation of the total Supplemental Price
for the Transferor, TE as defined above, shall not exceed SC, taking into
account any and all transfers, exchanges, and listings that may occur until June
30, 1999.
Therefore, until June 30, 1999:
- if the cumulative number of Shares and/or Investment Certificates
of the Company, transferred, exchanged and listed as set forth in
Article 2.2.1 above,
- exceeds the cumulative number of Shares and/or Investment
Certificates of the Company acquired by the Transferee from the
minority shareholders and owners of Investment Certificates of the
Company until April 30, 1998.
The Transferee shall not have to pay any further Supplemental Price to the
Transferor for any further transfer, exchange and listing.
2.2.3: Arbitration
Any dispute regarding the modes of application of the formula defined in Article
2.2.2 above shall be referred to an arbitrator, pursuant to Article 1592 of the
French Civil Code.
The parties shall agree upon the appointment of the arbitrator. If they are
unable to agree upon the procedure of appointment of the arbitrator, he shall be
appointed by the President of the Tribunal de Commerce de Paris, at the request
of any party.
The only duty of the arbitrator shall be to rule on the modes of application of
the formula defined in Article 2.2.2 above and in any case shall not be extended
to any other duty.
The arbitration shall take place in PARIS. The arbitrator shall give his
decision within one month of his appointment.
2.2.4: Payment of the Supplemental Price
The Supplemental Price shall be paid to the Transferor no later than 30 (THIRTY)
days after the complete and final payment to the Transferee of the price for the
Shares of the Company, transferred by the Transferee in a manner set forth in
Article 2.2.1 above.
If the operations mentioned in Article 2.2.1 above give rise to a payment to be
made at a future date for the benefit of the Transferee, it is expressly
stipulated that:
- the Transferee shall pay to the Transferor the amount of the
Supplemental Price corresponding to the proportion of the sums to be
paid cash, within 30 (THIRTY) days of their payment,
- the balance of the Supplemental Price shall be payable to the
Transferor at the same time and proportionally to the balance of the
sums to be paid at a future date,
- except if there are more than 180 (ONE HUNDRED AND EIGHTY) days
between this future date and the date of signature of the contract
giving rise to such payment for the benefit of the Transferee, in this
case, the balance of the Supplemental Price shall be payable to the
Transferor as soon as this period of 180 (ONE HUNDRED AND EIGHTY) days
has expired.
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ARTICLE 3: OBLIGATIONS OF THE TRANSFEROR
If necessary, the Transferor agrees to tender, on the date of the transfer of
the Shares, its resignation for all of the positions as director, member of the
Board of Directors, and, more generally, all of the functions that it occupies
as of that date in the Company.
ARTICLE 4: APPLICABLE LAW
The present contract shall be governed by the laws of France.
ARTICLE 5: APPLICABLE COURT
All disputes regarding the present contract shall be settled before the Tribunal
Court in Paris.
Executed in Paris In two Original Counterparts Date: December 23, 1997
CONTINENTAL CAN CCIEL
/s/ Xxxx Xxxxx /s/ Findlay Black
------------------------ -------------------------
Schedule of Substantially Identical Agreements
1.) Between the Company and First Xxxxxxxxx Mezzenine N.V. to sell 23,043
shares of Ferembal S.A. dated December 23, 1997.
2.) Between the Company and SG Capital Developpement S.A. to sell 15,000
shares of Ferembal S.A. dated December 23, 1997.
3.) Between the Company and CIBC International Trust Limited to sell 5,052
shares of Ferembal S.A. dated January 1998.
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