EXHIBIT A
STOCK PURCHASE AGREEMENT
THIS IS A STOCK PURCHASE AGREEMENT, dated as of February 3, 1998 (the
"Agreement"), between Compagnie Generale d'Industrie et de Participations, a
societe anonyme organized under the laws of the Republic of France (the
"Seller"), and Crown Cork & Seal Company, Inc., a Pennsylvania corporation (the
"Company").
Background
A. The Seller owns (i) 3,660,300 shares of 4.5% Cumulative Convertible
Preferred Stock, par value $41.8875 per share ("Preferred Stock"), of the
Company and (ii) 10,693,403 shares of Common Stock, par value $5.00 per share
("Common Stock"), of the Company.
B. The Seller desires to sell to the Company, and the Company desires
to purchase from the Seller, all of the shares of Preferred Stock owned by
Seller and 4,093,826 shares of Common Stock owned by Seller (such shares of
Common Stock and Preferred Stock together referred to herein as the "Subject
Shares"), all in accordance with the terms and conditions hereof.
Terms
THEREFORE, in consideration of the mutual agreements, covenants,
representations and warranties contained herein and intending to be legally
bound hereby, the parties hereto agree as follows:
1. Sale of the Subject Shares.
1.1 Sale and Purchase of Subject Shares. Subject to the terms and
conditions hereof, the Seller will transfer, assign, sell and deliver to the
Company, and the Company will purchase from the Seller, all of the Subject
Shares for $368,971,274 (the "Purchase Price").
1.2 Actions on the Closing Date. The closing for the sale and
purchase of the Subject Shares (the "Closing") will occur on March 2, 1998 (the
"Closing Date") at 10:00 a.m., local time, at the offices of Dechert Price &
Xxxxxx, 4000 Xxxx Atlantic Tower, 0000 Xxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx
00000 X.X.X. At the Closing, (a) the Seller will deliver certificates
representing the Subject Shares to the Company duly endorsed by the Seller to
the Company or with stock powers duly endorsed by the Seller to the Company; and
(b) the Company will deliver the Purchase Price to the Seller either (i) in cash
by wire transfer of immediately available funds to an
account designated in writing by the Seller not less than two business days
prior to the Closing Date, or (ii) at the election of the Company upon not less
than two business days prior written notice to the Seller, by executing and
delivering to the Seller a Promissory Note (the "Promissory Note") in the form
attached hereto as Exhibit A.
1.3 Transfer Taxes. The Company will pay the transfer taxes, if any,
due upon the sale of the Subject Shares under applicable law of any state of the
United States of America.
2. Representations and Warranties.
2.1 Representations and Warranties by the Seller. The Seller
represents and warrants to the Company as follows:
(a) The Seller is a societe anonyme validly existing under the
laws of the Republic of France.
(b) The Seller has the requisite power and authority to execute
and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution and delivery by
the Seller of this Agreement, the performance by Seller of its obligations
hereunder and the consummation of the transactions contemplated hereby have been
duly and validly authorized by all necessary corporate action under the laws of
the Republic of France and Seller's statuts and other organizational documents
(the "Seller Organizational Documents").
(c) This Agreement has been validly executed and delivered by
the Seller and, assuming this Agreement constitutes a valid and binding
obligation of the Company, constitutes a legal, valid and binding obligation of
the Seller, enforceable against it in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency or other similar laws
affecting the enforcement of creditors' rights generally and general principles
of equity.
(d) Neither the execution and delivery of this Agreement by the
Seller, the performance by the Seller of its obligations hereunder, nor the
consummation by the Seller of the transactions contemplated hereby will (i)
violate or conflict with, or result in a breach or default under, any contract,
commitment, agreement, understanding, arrangement or restriction of any kind to
which the Seller is a party or by which it or any of its properties is bound, or
violate or breach the Seller Organizational Documents, or (ii) violate or
contravene any law, statute, rule or regulation, or any order, judgment or
decree, currently in effect applicable to the Seller.
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(e) No consent, approval, order or authorization of any court,
administrative agency, other governmental entity or any other person or entity
is required by or with respect to the Seller in connection with the execution
and delivery of this Agreement by the Seller, the performance of its obligations
hereunder or the consummation of the transactions contemplated hereby.
(f) The Seller has good, valid and marketable title to the
Subject Shares, free and clear of all liens, claims, options, rights, proxies,
securities interests or other encumbrances ("Encumbrances") other than (i)
restrictions arising under the Securities Act of 1933, as amended (the
"Securities Act"), and (ii) any rights of the Company under the shareholders
agreement, dated February 22, 1996 (the "Shareholders Agreement"), between the
Company and Seller. The transfer of the Subject Shares by the Seller hereunder
to the Company will pass good, valid and marketable title to the Subject Shares
to the Company, free and clear of Encumbrances other than (i) restrictions
arising under the Securities Act and (ii) any Encumbrances resulting from the
Company's ownership of the Subject Shares.
(g) The Subject Shares constituting Preferred Stock are all of
the shares of Preferred Stock beneficially owned by the Seller and its
subsidiaries. Following consummation of the transactions contemplated hereby,
the Seller will beneficially own 6,599,577 shares of Common Stock (such shares
referred to herein as the "Retained Shares").
2.2 Representations and Warranties by the Company. The Company
represents and warrants to the Seller that:
(a) The Company is a corporation validly existing under the laws
of the Commonwealth of Pennsylvania.
(b) The Company has the requisite power and authority to execute
and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution and delivery by
the Company of this Agreement, the performance by the Company of its obligations
hereunder and the consummation of the transactions contemplated hereby have been
duly and validly authorized by all necessary corporate action.
(c) This Agreement has been validly executed and delivered by
the Company and, assuming this Agreement constitutes a valid and binding
obligation of the Seller, constitutes, and the Promissory Note, when and if
executed and delivered by the Company, will constitute, a legal, valid and
binding obligation of the Company, enforceable against it in accordance with its
terms, except as enforcement may
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be limited by bankruptcy, insolvency or other similar laws affecting the
enforcement of creditors' rights generally and general principles of equity.
(d) Neither the execution and delivery of this Agreement by the
Company, the issuance by the Company of the Promissory Note, the performance by
the Company of its obligations hereunder, nor the consummation by the Company of
the transactions contemplated hereby will (i) violate or conflict with, or
result in a breach or default under, any contract, commitment, agreement,
understanding, arrangement or restriction of any kind to which the Company is a
party or by which it or any of its properties is bound, or violate or breach the
articles of incorporation or bylaws or other organizational documents of the
Company, or (ii) violate or contravene any law, statute, rule or regulation, or
any order, judgment or decree, currently in effect applicable to the Company.
(e) No consent, approval, order or authorization of any court,
administrative agency, other governmental entity or any other person or entity
is required by or with respect to the Company in connection with the execution
and delivery of this Agreement by the Company, the issuance by the Company of
the Promissory Note, the performance of its obligations hereunder or the
consummation of the transactions contemplated hereby.
3. Other Covenants.
3.1 Termination of Shareholders Agreement. (a) Each of the Seller
and the Company hereby agree that the Shareholders Agreement will be terminated
and of no further force and effect on the Closing Date (it being understood that
such agreement shall continue in effect if the Closing does not occur);
provided, however, that so long as the Seller beneficially owns securities of
the Company representing 3.5% or more of the Total Voting Power (as such term is
defined in the Shareholders Agreement) of the Company, at no time following the
Closing will the Seller sell, assign, donate, transfer, pledge, hypothecate,
grant any option with respect to or otherwise dispose of any interest in (or
enter into an agreement or understanding with respect to the foregoing) (any
such action, a "Transfer") any of the Retained Shares (other than pursuant to a
tender or exchange offer) if the person or entity to whom such Transfer is made
would immediately thereafter, to the knowledge of the Seller, beneficially own
securities of the Company representing 3.5% or more of the Total Voting Power of
the Company.
(b) At the Closing, Seller shall cause Xxxxxx-Xxxxxxx Xxxxxxxxx
to resign from the Board of Directors of the Company effective as of the
Closing. Following the Closing, Xxx xx Xxxxxxx, to the extent continuing as a
member of the Company's Board of Directors, shall no longer be considered a
designee of the
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Seller to the Company's Board of Directors (including a Shareholder Designee, as
such term is defined in the Shareholders Agreement).
3.2 Termination of Management Agreement. The Seller hereby agrees,
and the Company will cause CarnaudMetalbox, a subsidiary of the Company, to
agree, that the letter agreement, dated as of May 20, 1995, between the Seller
and CarnaudMetalbox, a copy of which is attached hereto as Exhibit B, will be
terminated and of no further force and effect effective as of the Closing, with
all required notice periods required for termination thereunder being waived (it
being understood that such agreement shall continue in effect if the Closing
does not occur); provided, however, that provision shall be made for the payment
to the Seller of FF 1,781,000 thereunder.
3.3 Dividends. The record and payment dates for the first quarter
dividend on the Preferred Stock and the Common Stock are February 3, 1998 and
February 20, 1998, respectively. The Seller will be entitled to receive the
first quarter dividend on all of the Subject Shares.
3.4 No Mandatory Conversion. Prior to the consummation of the sale
of the Subject Shares to the Company, the Company shall not elect to cause the
Preferred Stock to be converted into Common Stock.
4. Miscellaneous.
4.1 Amounts in U.S. Dollars. All references to "$" or "dollars"
herein are references to United States dollars.
4.2 Parties in Interest. This Agreement will be binding upon, inure
to the benefit of and be enforceable by the parties hereto and their respective
successors and permitted assigns.
4.3 Entire Agreement; Amendments; Waiver. This Agreement contains
the entire understanding between the Seller, on the one hand, and the Company,
on the other, with respect to its subject matter. This Agreement may be amended
only by written instrument duly executed by all of the parties hereto. No party
may waive any term, provision, covenant or restriction of this Agreement except
by duly signed writing referring to the specific provision to be waived.
4.4 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be delivered personally
or transmitted by fax, confirmed by certified mail (air mail in the case of
international communications), postage prepaid, to the respective parties as
follows:
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(a) If to the Seller, to:
Compagnie Generale d'Industrie et de Participations
00, xxx Xxxxxxxx
00000 Xxxxx, Xxxxxx
Attn.: Michel Renault
Fax No.: (000) 00 000 000 000
With a copy to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn.: Xxxxx X. Xxxxxx
Fax No.: (000) 000-0000
(b) If to the Company, to:
Crown Cork & Seal Company, Inc.
Xxx Xxxxx Xxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 X.X.X.
Attn.: Chairman of the Board
Fax No.: (000) 000-0000
or to such other address as any party may have furnished to the other in writing
in accordance herewith.
4.5 Governing Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York, without regard to
conflicts of laws principles.
4.6 Severability of Provisions; Survival. Except as expressly set
forth herein to the contrary, if any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated. All representations, warranties,
covenants and agreements of the parties hereto shall survive (a) the execution
and delivery of this Agreement and (b) the purchase and sale of the Subject
Shares hereunder.
4.7 Specific Performance. Each party acknowledges the uniqueness of
the obligations owed to the other party and that the other party will not have
an adequate
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remedy at law if such party fails to perform any of its obligations hereunder.
Therefore, each party agrees that the other party will have the right, in
addition to any other right it has (provided it is not in breach of this
Agreement), to specific performance or equitable relief by way of injunction if
such party fails to perform any of its obligations hereunder.
4.8 Counterparts; Headings. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same document. The section headings
contained herein are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
4.9 Assignment. None of the parties to this Agreement may assign any
of its rights or obligations under this Agreement without the prior written
consent of the other party hereto.
4.10 Expenses. Each of the parties hereto shall pay the fees and
expenses it incurs in connection with this Agreement, other than as a result of
the breach hereof by any other party hereto.
4.11 Certain Definitions. For purposes of the Agreement, the term
"beneficially owned" shall have the meaning set forth in Rule 13d-3 promulgated
under the Securities Exchange Act of 1934.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first written.
CROWN CORK & SEAL COMPANY, INC.
By /s/ Xxxx X. Xxxxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
COMPAGNIE GENERALE D'INDUSTRIE
ET DE PARTICIPATIONS
By /s/ Xxxxxx-Xxxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxx-Xxxxxxx Xxxxxxxxx
Title: Chairman and CEO
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Exhibit A
FORM OF PROMISSORY NOTE
CROWN CORK & SEAL COMPANY, INC.
Promissory Note
U.S. $368,971,274 Philadelphia, Pennsylvania
March 2, 1998
Crown Cork & Seal Company, Inc., a Pennsylvania corporation (the
"Maker"), for value received, hereby promises to pay to Compagnie Generale
d'Industrie et de Participations, a societe anonyme organized under the laws of
the Republic of France (the "Payee"), the principal sum of Three Hundred
Sixty-Eight Million, Nine Hundred Seventy-One Thousand, Two Hundred Seventy-Four
Dollars ($368,971,274) on June 1, 1998 to the account of the Payee referred to
below, and to pay interest commencing on the date hereof on the principal amount
hereof at a per annum rate equal to 5.7% (calculated on the basis of a 360 day
year), until the principal amount hereof shall have become due and payable,
whether at maturity or otherwise, and thereafter at a rate equal to 7.7% per
annum until paid.
The Maker hereby waives diligence, presentment, demand, protest and
notice of any kind whatsoever. The nonexercise by the Payee of any of its rights
hereunder in any particular instance shall not constitute a waiver thereof in
that or any subsequent instance.
All payments of principal and interest on this Note shall be in such
coin or currency of the United States of America as at the time of payment shall
be legal tender for payment of public and private debts. Payment of the
principal and interest on this Note shall be made to the account of the Payee at
the address set forth below:
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All payments under this Note (including this paragraph) shall be
paid by the Maker without withholding or deduction of any tax or like charge;
and if the Payee shall be required to deduct or withhold such a tax or like
charge or if such tax or like charge is imposed on Payee as a result of any
payment under this Note, the Maker shall pay Payee such additional amount as
shall be required so that the net amount received by
Payee after such deduction, withholding or imposition shall equal the amount
otherwise due Payee.
The Maker may, at any time and from time to time, without premiums
or penalty, prepay all or a portion of the unpaid principal amount of this Note,
together with unpaid interest accrued on such portion of the principal amount
which it is prepaying since the date of this Note; provided, however, that the
Maker shall give the Payee not less than two business days prior written notice
of any such prepayment.
If (i) default in payment when due shall be made by the Maker
(beyond any applicable cure period), and shall be continuing, under any
instrument evidencing indebtedness for borrowed money in excess of $100,000,000
or (ii) default shall be made by the Maker (beyond any applicable cure period),
and shall be continuing, in the performance of any other obligation under any
instrument evidencing such indebtedness in excess of $100,000,000 if the effect
of such default is to accelerate the maturity of such indebtedness, then the
Payee may, by notice in writing to the Maker specifying such default which has
occurred, declare the unpaid principal of this Note, together with accrued
interest to the date of such notice, to be forthwith due and payable, and upon
the Maker's receipt of such notice, such principal and interest shall be due and
payable without presentation, without presentment, demand, protest or further
notice of any kind, all of which are expressly waived to the extent permitted by
law. The Maker will give prompt written notice to the Payee of the occurrence of
either of the events referred to in clauses (i) or (ii) of the previous
sentence.
After all unpaid principal and interest owed on this Note has been
paid in full, this Note shall be surrendered to the Maker for cancellation and
shall not be reissued.
The construction, validity and interpretation of this Note shall be
governed by and construed in accordance with the laws of the State of New York,
without giving effect to any choice of law or conflict of law provision or rule
that would cause the application of the laws of any jurisdiction other than the
State of New York.
This Note, and any interest herein, may not be assigned, sold,
encumbered, hypothecated, or otherwise transferred by the Payee unless the Maker
gives its prior written consent to such transfer.
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IN WITNESS WHEREOF, the Maker has executed and delivered this
Promissory Note on the date first written above.
CROWN CORK & SEAL COMPANY, INC.
By ___________________________________
Name:
Title:
By ___________________________________
Name:
Title:
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