Exhibit 99.1
Aleris International, Inc.
and
Corus Group plc
Share Purchase Agreement
for the sale and purchase of the entire issued share capital of the
Companies (as defined in this agreement)
2006
CONTENTS
CLAUSE PAGE NO.
1. INTERPRETATION...........................................................1
2. SALE AND PURCHASE.......................................................13
3. CONDITIONS..............................................................13
4. PERIOD TO COMPLETION....................................................15
5. COMPLETION..............................................................16
6. OBLIGATIONS FOLLOWING COMPLETION........................................18
7. FOREIGN EXCHANGE CONTRACTS..............................................20
8. COMPLETION ACCOUNTS.....................................................20
9. POST COMPLETION UNDERTAKINGS............................................20
10. SELLER WARRANTIES.......................................................21
11. BUYER WARRANTIES........................................................22
12. PROTECTION OF KNOW-HOW AND GOODWILL.....................................22
13. CONFIDENTIAL INFORMATION................................................23
14. GENERAL INDEMNITIES.....................................................24
15. EMPLOYEES...............................................................25
16. INTELLECTUAL PROPERTY...................................................25
17. USE OF CORUS NAME.......................................................27
18. HEDGING GUARANTEE.......................................................28
19. ENVIRONMENTAL AND HEALTH AND SAFETY INDEMNITIES.........................28
20. PRE-SALE RE-ORGANISATION................................................29
21. BOOKS AND RECORDS.......................................................29
22. ANNOUNCEMENTS...........................................................29
23. ASSIGNMENT..............................................................30
24. COSTS...................................................................31
25. EFFECT OF COMPLETION....................................................31
26. FURTHER ASSURANCES......................................................31
27. ENTIRE AGREEMENT........................................................31
28. VARIATIONS..............................................................31
29. WAIVER..................................................................32
30. INVALIDITY..............................................................32
31. NOTICES.................................................................32
32. COUNTERPARTS............................................................33
33. GOVERNING LAW AND JURISDICTION..........................................33
34. AGENT FOR SERVICE.......................................................33
35. THIRD PARTY RIGHTS......................................................34
SCHEDULE 1...................................................................35
Part A The Buying Subsidiaries..............................................35
Part B The Selling Subsidiaries.............................................36
SCHEDULE 2...................................................................37
Part A Particulars relating to the Companies................................37
SCHEDULE 2...................................................................43
Part B Particulars relating to the Subsidiaries.............................43
SCHEDULE 3...................................................................57
The Seller Warranties........................................................57
SCHEDULE 4...................................................................87
Seller Protection Provisions.................................................87
SCHEDULE 5...................................................................91
The Properties...............................................................91
SCHEDULE 6..................................................................102
Pro Forma Completion Accounts...............................................102
SCHEDULE 7..................................................................103
Part A Accounting Policies and Procedures for the Completion Accounts......103
Part B Preparation and Agreement of Completion Accounts....................104
SCHEDULE 8..................................................................107
SCHEDULE 9..................................................................108
Completion Deliverables.....................................................108
Part A Seller Deliverables.................................................108
SCHEDULE 9..................................................................110
Completion Deliverables.....................................................110
Part B Buyer Deliverables.................................................110
SCHEDULE 10.................................................................111
Seller Obligations in Period to Completion..................................111
SCHEDULE 11.................................................................113
Buyer Warranties............................................................113
SCHEDULE 12.................................................................114
Limitations On Environmental Indemnity Claims...............................114
SCHEDULE 13.................................................................119
Agreed Form Documents.......................................................119
THIS AGREEMENT is made on 2006
BETWEEN:
(1) ALERIS INTERNATIONAL, INC. whose principal place of business is
00000 Xxxxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxx 00000-0000,
Xxxxxx Xxxxxx, for itself and as agent for each of the Buying
Subsidiaries (the "BUYER"); and
(2) CORUS GROUP PLC (registered number 3811373) whose registered office
is at 00 Xxxxxxxx, Xxxxxx XX0X 0XX, Xxxxxx Xxxxxxx (the "SELLER").
THE PARTIES AGREE AS FOLLOWS:
1. INTERPRETATION
1.1 In this agreement the following words and expressions and
abbreviations have the following meanings, unless the context
otherwise requires:
"2005 AND 2006 IFRS UNAUDITED QUARTERLY ACCOUNTS" means the
unaudited aggregated accounts for the Group, comprising the balance
sheet, profit and loss account and cash flow statement of the Group
(including, for the avoidance of doubt the financial results of
Corus L.P. and Corus Aluminium, Inc.) for the periods between 31
December 2004 and 31 March 2005 and 31 December 2005 and 31 March
2006, (and, if closing occurs after 12 August 2006, the periods
between 31 March 2005 and 30 June 2005 and 31 March 2006 and 30 June
2006) including a reconciliation to US GAAP, in each case reviewed
to the level of, and in accordance with, SAS 100;
"ACCOUNTS" means the audited financial statements of each Group
Company, comprising the balance sheet, profit and loss account and
cash flow statement (where applicable) of each Group Company,
together in each case with the notes thereon, directors' report and
auditors' report (where applicable), as at and for the financial
period ended on the Accounts Date;
"ACCOUNTS DATE" means 31 December 2005;
"ACQUIRED REVENUES" has the meaning given to it in clause
12.2(d)(ii);
"ACTIVITIES" means any activity, operation or process carried out by
the Group Companies at any property whether or not currently owned,
occupied or used by such Group Companies;
"ACTUAL CASH" means the aggregate amount of cash and cash
equivalents in hand or credited to the account of any Group Company
(provided that only 61.09 per cent. of any such amounts shall be
taken account of for the purposes of this definition where such
amounts relate to Corus Tianjin), and including the Intra-Group
Receivables, in each case as at close of business on the Completion
Date, and calculated in accordance with clause 8 (Completion
Accounts), and determined in accordance with IFRS consistently
applied, as set out in the Statement;
"ACTUAL DEBT" means the aggregate amount of indebtedness of the
Group for borrowed monies, indebtedness evidenced by any note, bond,
debenture or other debt security, the deferred purchase price of
property or services, and for finance and/or capitalized leases,
liabilities arising under the Profit and Loss Sharing Agreement and
liabilities arising in respect of interest rate and currency swap
arrangements (if any), including all interest accrued thereon, and
including any guarantee of the foregoing, and including Intra-Group
Payables, but excluding current trade creditors, (provided that only
61.09 per cent. of any such amounts shall be taken account of for
the purposes of this definition where such amounts relate to Corus
Tianjin) in each case as at close of business on the Completion
Date, and calculated in accordance with clause 8 (Completion
Accounts), and determined in accordance with IFRS consistently
applied, as set out in the Statement, for the avoidance of doubt
expressed as a positive number;
"ACTUAL WORKING CAPITAL AMOUNT" means:
(a) the aggregate value of:
(i) inventory;
(ii) trade debtors net of provisions and pre-paid income
(excluding Intra-Group Receivables but including
intra-group trade debtors);
(iii) VAT debtors and receivables; and
(iv) other operational debtors,
(b) less the aggregate value of:
(i) trade creditors and deferred income (excluding
Intra-Group Payables but including intra-group trade
creditors);
(ii) VAT creditors and payables;
(iii) Tax and social security liabilities;
(iv) other operational creditors (including but not limited
to payables to fixed asset creditors); and
(v) any sale or retention bonuses (plus any Tax payable by
Group Companies thereon) payable to Workers or to
Seller's Group employees working on secondment in the
Business which become payable (on a contractual or
discretionary basis) as a result of the transactions
contemplated by this agreement,
in each case of the Group (other than Corus Tianjin), at close of
business on the Completion Date, as set out in the Statement and
calculated in accordance with clause 8 (Completion Accounts) and
schedules 6 and 7. For the avoidance of doubt, any item taken
account of in calculating the Actual Working Capital Amount shall
not be taken account of in calculating Actual Cash and Actual Debt,
and vice versa;
"ASSOCIATED COMPANY" has the meaning given to it in sections 416 et
seq. of the TA;
"BASIS OF PREPARATION" has the meaning given thereto in paragraph
3.1(d) of schedule 3;
"BELGIUM COMPANIES" means Corus Aluminium NV and Corus Service
Center NV;
"BOOKS AND RECORDS" means all notices, correspondence, orders,
inquiries, drawings, plans, books of account and other documents and
all computer disks or tapes or other machine legible programs
(excluding software);
"BUDGET" means the financial plan for the Business relating to the
period from 1 January 2006 to 31 October 2007 in the agreed form;
"BUSINESS" means the downstream aluminium business of the Group
comprising an aluminium rolled products business and aluminium
extensions business but excluding primary aluminium operations;
"BUSINESS DAY" means a day (excluding Saturdays) on which banks
generally are open in London other than solely for the trading or
settlement of euros ((euro));
"BUSINESS NON-COMPLIANCE" means a failure to comply with
Environmental Law in relation to the current operation of the
Business at the Properties but excluding any contamination or
exposure Liabilities attributable to such operation;
"BUSINESS SECONDEE" means the person employed by the Group but
seconded to the Seller's Group, being Xxxx Xxxxxxxx;
"BUYER DEED OF RELEASE" means a deed releasing each member of the
Seller's Group from the Intra-Group Receivables, in the form to be
agreed between the parties as soon as reasonably practicable from
the date hereof;
"BUYER'S ACCOUNT" means the account to be notified by the Buyer to
the Seller in writing at least five Business Days prior to
Completion;
"BUYER'S GROUP" means the Buyer, any holding company of the Buyer
and the subsidiary undertakings and associated companies (including,
following Completion, each member of the Group) from time to time of
such holding companies, all of them and each of them as the context
admits;
"BUYER'S SOLICITORS" means Fried Xxxxx Xxxxxx Xxxxxxx & Xxxxxxxx
(London) LLP, 00 Xxxx Xxxx, Xxxxxx XX0X 0XX;
"BUYING SUBSIDIARIES" means the persons whose names are set out in
part A of schedule 1 and any other person who is nominated as Buying
Subsidiary by notice in writing from the Buyer to the Seller at any
time prior to the date which is 20 Business Days before Completion;
"BUYER WARRANTIES" means the warranties of the Buyer set out in
schedule 11;
"CASH ADJUSTMENT" means the Actual Cash less the Estimated Cash
(and, for the avoidance of doubt, the resulting amount may be
positive or negative);
"CASH POOLING AGREEMENTS" means the following agreements:
(i) domestic notional pooling single currency agreement
between Corus International Services SA, Corus Aluminium
SA, Corus Packaging Plus SA, Corus Aluminium Service
Center SA, Corus Building Systems SA, Corus Aluminium
International SA and Bank Brussels Xxxxxxx dated 9
November 2001, as supplemented by a letter agreement
between Corus International Services SA and ING bank NV
dated 24 February 2005;
(ii) cash pooling agreement between, inter alia, Corus
Nederland NV, members of the Group and ABN AMRO Bank
N.V. dated 21 July 2005;
(iii) netting authorisation cash pooling agreement between,
inter alia, Corus America Holdings Inc. and the members
of the Group dated 1 August 2003 concerning accounts
with Bank of America;
(iv) cash pooling agreement between Commerzbank AG Dusseldorf
and Corus Deutschland GmbH dated 10 December 2002;
(v) cash pooling agreement between Deutsche Bank AG
Dusseldorf and Corus Deutschland GmbH dated 15 July
1999; and
(vi) any cash pooling arrangements or agreements between
Corus Deutschland GmbH and Corus Aluminium GmbH;
"CEM SETTLEMENT AGREEMENT" means the settlement agreement between,
inter alia, the Seller, Corus Properties (Germany) Limited, Corus
Walzprodukte GmbH and CEM Cement Coblenz GmbH & Co. KG dated 27
February 2003;
"CHINA CHANGE OF CONTROL WAIVER" means an unconditional and
irrevocable written waiver to be obtained by the Seller (or the
relevant Selling Subsidiary) from TNFM of any and all of TNFM's
rights arising out of or in connection with the sale of the Shares
pursuant to this agreement (pre-emptive or otherwise) in relation to
Corus Tianjin to (i) sell all or any of TNFM's equity interests in
Corus Tianjin; (ii) purchase all or any of the Corus Tianjin Equity
Interests; (iii) terminate any agreement relating to Corus Tianjin;
and (iv) take any other action as a result of the sale of the Shares
pursuant to this agreement;
"CMET" means Corus MET BV;
"COMPANIES" mean the persons whose names are set out in part A of
schedule 2;
"COMPETITOR" means a third party which is a material competitor with
the relevant business;
"COMPLETION" means the completion of the sale and purchase of the
Shares in accordance with clause 5 (Completion);
"COMPLETION ACCOUNTS" means a document in the format set out in
schedule 6 to be prepared in accordance with clause 8 (Completion
Accounts) and part B of schedule 7 and on the basis of the
accounting policies and procedures set out in part A of schedule 7;
"COMPLETION DATE" means the date on which Completion occurs;
"CONDITIONS" means the conditions set out in clause 3.1
(Conditions);
"CONFIDENTIAL INFORMATION" means all information relating to:
(i) the provisions or the subject matter of this agreement
or any document referred to herein;
(ii) the negotiations relating to this agreement or any
document referred to herein; and
(iii) (in the case of the Buyer only) the members of the
Seller's Group and, (in the case of the Seller only) the
members of the Buyer's Group and including in each case
information relating to their business or financial or
other affairs which is not publicly known;
"CORUS DEUTSCHLAND LOAN AMOUNT" means the (euro)45,000,000 amount
plus any accrued but unpaid interest thereon outstanding in respect
of the shareholder loan from Corus Deutschland GmbH to Corus
Walzproduckte GmbH (the "CORUS DEUTSCHLAND LOAN");
"CORUS DEUTSCHLAND LOAN ASSIGNMENT" means the assignment in relation
to the Corus Deutschland Loan on terms to be agreed as soon as
reasonably practicable following the date of this agreement;
"CORUS TIANJIN" means Corus Aluminium Extrusions Tianjin Co. Ltd.;
"CORUS TIANJIN EQUITY INTERESTS" means the 61.09 per cent. equity
interests in Corus Tianjin owned by Corus Aluminium Profiltechnik
GmbH;
"DEBT ADJUSTMENT" means the Estimated Debt less the Actual Debt
(and, for the avoidance of doubt, the resulting amount may be
positive or negative);
"DEFAULT RATE" means 2 per cent. above the base rate from time to
time of National Westminster Bank plc;
"DISCLOSED PENSION SCHEME" has the meaning given to it in paragraph
19.1 of schedule 3;
"DISCLOSURE LETTER" means a letter of today's date together with the
attachments thereto addressed by the Seller to the Buyer for the
purposes of clause 10.4;
"DUTCH COMPANIES" means Corus Hylite BV and Corus Aluminium Rolled
Products BV;
"DUTCH SMELTER DEED" means a deed in relation to the transfer of the
casthouses at Aldel in the agreed form;
"DUTCH TRANSFER DEEDS" means the transfer deeds in respect of the
entire issued share capital of the Dutch Companies, in the form to
be agreed between the parties as soon as reasonably practicable
following the date hereof;
"EBITDA" means profit or loss, expressed in euros ((euro)), before
taking into account interest, taxation, depreciation and
amortisation;
"EBITDA ADJUSTMENT AMOUNT" means, if EBITDA, as derived from the
First 2005 IFRS Audited Accounts:
(i) is less than (euro)111,455,000 (provided that changes
resulting from the reclassification of line items shall
not be taken into account) less (euro)3,000,000 then
such shortfall multiplied by a factor of 6.1; or
(ii) is more than (euro)111,455,000 (provided that changes
resulting from the reclassification of line items shall
not be taken into account), zero,
PROVIDED THAT if the amount set out in the reallocation of central
costs of the Seller's Group as set out in the First 2005 IFRS
Audited Accounts is (x) less than (euro)4,600,000, the above amount
of (euro)111,455,000 shall be increased by the amount of such
shortfall, or (y) greater than (euro)4,600,000, the above amount of
(euro)111,455,000 shall be reduced by the excess above
(euro)4,600,000;
"EC MERGER REGULATION" means the European Commission Merger
Regulation no.139/2004 of 20 January 2004;
"ENCUMBRANCE" means any mortgage, charge (fixed or floating),
pledge, lien, hypothecation trust, right of set off or other third
party right or interest (legal or equitable) including any right of
pre-emption, assignment by way of security, reservation of title or
any other security interest of any kind however created or arising
or any other agreement or arrangement (including a sale and
repurchase arrangement) having similar effect but excluding, for the
avoidance of doubt, any licences of Intellectual Property;
"ENVIRONMENT" means protection of the environment and natural
resources, any and all living organisms (including man), ecosystems,
property and the media of air (including air in buildings, natural
or man-made structures, below or above ground) water and land
(including under any water above or below surface);
"ENVIRONMENTAL CONSENT" means any consent, approval, Permit,
licence, authorisation, exemption, registration or permission
required under any Environmental Law;
"ENVIRONMENTAL EXPERT" has the meaning given to it in paragraph 8.1
of schedule 12;
"ENVIRONMENTAL INDEMNITY CLAIM" has the meaning given to it in
paragraph 1.1 of schedule 12;
"ENVIRONMENTAL LAWS" means any and all of the following: (a) any
international, European Union, national, state, federal, regional or
local laws (including common law, statute law, civil, criminal and
administrative law); (b) any subordinate legislation and codes of
practice, including without limitation guidance notes (to the extent
they have the force of law), decisions, regulations, judgments,
orders and decrees; and (c) any judicial or administrative
interpretation of each of the foregoing; which in each case relate
to the Environment or to the occupational health and safety of
employees, workers and contractors, and which have the force of law
from time to time, whether before, on or after Completion, in
relation to any Group Company, provided that with respect to
Unlisted Onsite Issues and with respect to the warranties in
paragraph 21 of schedule 3, Environmental Laws shall be those having
the force of law in relation to any Group Company as of the date of
Completion;
"ESTIMATED CASH" means the Seller's good faith estimate of the
Actual Cash as notified in writing by the Seller to the Buyer no
later than three Business Days prior to Completion;
"ESTIMATED DEBT" means the Seller's good faith estimate of the
Actual Debt as notified in writing by the Seller to the Buyer no
later than three Business Days prior to Completion (for the
avoidance of doubt expressed as a positive number);
"ESTIMATED INTRA-GROUP PAYABLES" means the Seller's good faith
estimate of the Intra-Group Payables as notified in writing by the
Seller to the Buyer no later than three Business Days prior to
Completion;
"ESTIMATED INTRA-GROUP RECEIVABLES" means the Seller's good faith
estimate of the Intra-Group Receivables as notified in writing by
the Seller to the Buyer no later than three Business Days prior to
Completion;
"EXCHANGE RATE" means, in relation to any amount in any particular
local currency required to be converted into euro at such rate as
set out in clause 1.2(k) and (l) and the spot rate of exchange
(closing mid-point) for that currency on the relevant date for
conversion specified therein as published in the London edition of
The Financial Times on the next Business Day following the relevant
conversion date or, where no such rate of exchange is published in
respect of that date, the rate quoted by National Westminster Bank
plc as at the close of business in London on that date;
"FINAL CASH CONSIDERATION" shall bear the meaning given to such term
in clause 6.3 (Obligations following Completion);
"FIRM" shall bear the meaning given to such term in paragraph 6 of
part B of schedule 7;
"FIRST 2004 AND 2005 IFRS AUDITED ACCOUNTS" means the audited
aggregated accounts for the Group comprising the balance sheet,
income statement and cash flow statement of the Group, together in
each case with the notes thereon, and auditors' report, (including,
for the avoidance of doubt, the financial results of Corus L.P. and
Corus Aluminium, Inc.) for the periods ending on 31 December 2004
and 31 December 2005 including a reconciliation to US GAAP delivered
to the Buyer in accordance with clause 4.5 and "FIRST 2004 IFRS
AUDITED ACCOUNTS" and "FIRST 2005 IFRS AUDITED ACCOUNTS" shall be
construed accordingly;
"FOREIGN EXCHANGE CONTRACT" means any forward foreign exchange
contract between a member of the Group and Corus Nederland BV that
has a maturity day falling after the Completion Date;
"FORWARD SALES CONTRACTS" means the forward sales contracts relating
to the sale of aluminium by the Seller's Group to the Buyer's Group
between the Seller and the relevant Group Company in the agreed
form;
"GERMAN GROUP COMPANIES" means Corus Aluminium Walzprodukte GmbH,
Grundstuck-sverwaltungsgesellschaft Objekt Wallersheim GmbH,
Duinlust Grundstucks GmbH, Corus Profiltechnik GmbH, Corus Aluminium
GmbH, Corus Aluminium Profiltechnik Bonn GmbH, BUG-Alutechnik GmbH
and Corus Aluminium Profiltechnik Bitterfeld GmbH and "GERMAN GROUP
COMPANY" means any one of them;
"GERMAN SMELTER DEED" means a deed in relation to the transfer of
the casthouses at Voerde in the agreed form;
"GERMAN TRANSFER DEED" means a transfer deed in respect of the
transfer of the entire issued share capital in Corus Aluminium GmbH
in the form to be agreed between the parties as soon as reasonably
practicable following the date hereof;
"GOVERNMENT AUTHORITY" means any court, tribunal, arbitrator,
authority, agency, regulator, commission, official or other
instrumentality, or governmental or quasi-governmental entity, or
any supra-national, national, regional, provincial, county, city or
other political subdivision or regulatory body;
"GROUP" means the Companies and the Subsidiaries and "GROUP COMPANY"
means any one of them;
"HAZARDOUS SUBSTANCE" means any natural or artificial substance
(whether solid, liquid, gas, noise, ion, vapour, electromagnetic or
radiation, and whether alone or in combination with any other
substance) which is regulated under Environmental Laws or is capable
of causing harm to or have a deleterious effect on the Environment;
"HEDGING OBLIGATIONS" has the meaning given to it in clause 18.1;
"HSR ACT" means the United States Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976;
"IDENTIFIED KNOWN ISSUES" means the ongoing site investigation
(including, for the avoidance of doubt, any offsite investigation
relating thereto) and remediation activities, in each case, up to
and including completion thereof (including final regulatory
approval or its equivalent) at Duffel, Belgium;
"IFRS" means the body of pronouncements issued by the International
Accounting Standards Board (IASB), including International Financial
Reporting Standards and interpretations approved by the IASB,
International Accounting Standards and Standing Interpretations
Committee interpretations approved by the predecessor International
Accounting Standards Committee and adopted for use in the European
Union;
"INFORMATION MEMORANDUM" means the information memorandum relating
to the Business prepared by Credit Suisse First Boston (Europe)
Limited and ABN AMRO Corporate Finance Limited and dated December
2005;
"INTELLECTUAL PROPERTY" means patents, trade marks, service marks,
design rights, rights in trade names, rights in trade dress,
copyrights, (whether registered or not and any applications to
register or rights to apply for registration of any of the
foregoing), rights in inventions and discoveries, rights in
Know-How, rights in trade secrets and other confidential
information, and all other intellectual or industrial property
rights of a similar or corresponding character in any part of the
world;
"INTELLECTUAL PROPERTY LICENCE AGREEMENT" means the licence
agreement relating to certain registered Intellectual Property,
between Corus Technology BV, Corus Staal BV and the relevant Group
Company in the agreed form;
"INTERNET PRESENCE" means any public, private or reserved presence
on the worldwide web, multi-party extranet, virtual private network
or similar internet based, linked system;
"INTRA-GROUP PAYABLES" means the aggregate of all amounts owing
(including any interest payments thereon) from members of the Group
(other than Corus Tianjin) to members of the Seller's Group
(excluding amounts owing in respect of intra-group trading
activities in the ordinary course of trading, and excluding the
Corus Deutschland Loan Amount) as at close of business on the
Completion Date, calculated in accordance with clause 8 (Completion
Accounts) and part B of schedule 7 and on the basis of the
accounting policies and procedures set out in part A of schedule 7;
"INTRA-GROUP RECEIVABLES" means the aggregate of all amounts owing
(including any interest payments thereon) from members of the
Seller's Group to members of the Group (other than Corus Tianjin)
(excluding amounts owing in respect of intra-group trading
activities in the ordinary course of trading) as at close of
business on the Completion Date, calculated in accordance with
clause 8 (Completion Accounts) and part B of schedule 7 and on the
basis of the accounting policies and procedures set out in part A of
schedule 7;
"KNOW-HOW" means confidential or proprietary industrial, technical
or commercial information and techniques in any form (including
paper, electronically stored data, magnetic media, files and
micro-film) including, drawings, data, formulae, processes,
compositions, test results, reports, research reports, project
reports and testing procedures, shop practices, instruction and
training manuals, market forecasts, specifications, quotations,
lists and particulars of customers and suppliers, marketing methods
and procedures, show-how and advertising copy;
"LEASES" means the leases specified in the Disclosure Letter;
"LENDER" has the meaning given to it in clause 23.3;
"LIABILITIES" means all liabilities, duties, costs (including but
not limited to, reasonable legal costs and other expert advice), and
obligations of every description, whether deriving from contract,
tort, common law, statute or otherwise, whether present or future,
actual or contingent, ascertained or unascertained or disputed and
whether owed or incurred severally or jointly or as principal or
surety;
"LONDON STOCK EXCHANGE" means the London Stock Exchange plc;
"LOSSES" means all losses, Liabilities, costs (including, but not
limited to, reasonable legal costs and other expert advice), charges
and expenses, including those arising out of actions, proceedings,
claims and demands but excluding any direct or consequential loss
arising out of a loss of profit, loss of sales, loss of production
or business interruption;
"MANAGEMENT ACCOUNTS" means the management accounts for each Group
Company for the periods from 1 January 2006 to 28 February 2006 in
the agreed form;
"MATERIAL ADVERSE EFFECT" shall have the meaning given to it in
clause 3.1(c);
"METAL SUPPLY AGREEMENTS" means the following agreements in the
agreed form in relation to:
(a) the supply of rolling ingots between Corus Aluminium
Walzprodukte GmbH ("KOBLENZ") and Corus Aluminium Voerde GmbH
("VOERDE");
(b) the supply of rolling ingots between Corus Aluminium NV
("DUFFEL") and Voerde;
(c) the supply of rolling ingots between Koblenz and Aluminium
Delfzijl B.V. ("ALDEL");
(d) the supply of rolling ingots between Duffel and Aldel;
(e) the supply of round and oval billets between Corus Aluminium
Profiltechnik GmbH ("XXXX"), Corus Aluminium Bitterfeld GmbH
("BITTERFELD"), Corus Aluminium Profiltechnik Bonn GmbH
("BONN"), Duffel and Voerde;
(f) the supply of round billets between Xxxx, Bitterfeld, Bonn,
Duffel and Aldel;
(g) recycling aluminium scrap into billets between Xxxx,
Bitterfeld, Bonn, Duffel and Voerde; and
(h) recycling aluminium scrap into billets between Xxxx,
Bitterfeld, Bonn, Duffel and Aldel;
"NYSE" means the NYSE Group, Inc.;
"OFFSITE ISSUES" means any matters that might give rise to any
Liabilities under Environmental Laws: (i) arising from Activities
and not in relation to the Properties; or (ii) in relation to any
properties formerly owned, leased, operated, occupied or used by the
Group (including arising from Activities); or (iii) in relation to
any of the Seller's Group's smelter sites and related primary
aluminium businesses; in each case, occurring or existing at or
prior to Completion;
"PANEL" means the UK Panel on Takeovers and Mergers;
"PATENT ASSIGNMENT" shall mean the patent assignment between Corus
Technology B.V. and the Buyer, or the Buyer's designee, in the form
to be agreed between the parties as soon as reasonably practicable
following the date hereof;
"PAYMENT ON COMPLETION" shall bear the meaning given to such term in
clause 2.3 (Sale and Purchase);
"PERMIT" means a permit, licence, consent, approval, certificate,
qualification, specification, registration and other authorisation
and a filing of a notification report or assessment necessary in any
jurisdiction for the proper and efficient operation of each Group
Company's business, its ownership, possession, occupation or use of
an asset or the execution and performance of this agreement;
"POLICY" has the meaning given to it in paragraph 9.1 of schedule 3;
"PRC" means the People's Republic of China;
"PRE-SALE RE-ORGANISATION" means the:
(i) transfer of the entire issued share capital of Corus
International Services NV from Corus Aluminium NV to a
member of the Seller's Company prior to Completion;
(ii) transfer of one ordinary share in Corus Aluminium NV
from Aluminium Delfizl BV to Corus Nederland BV prior to
Completion; and
(iii) the pre-sale re-organisation of the Group to be carried
out prior to Completion as set out in the steps plan to
be agreed between the parties as soon as reasonably
practicable following the date hereof;
"PROFIT AND LOSS SHARING AGREEMENT" means the agreement dated 27
October 2004 between Corus Aluminium GmbH and Corus Deutschland
GmbH;
"PROFIT AND LOSS TERMINATION AGREEMENT" means the profit and loss
termination agreement between Corus Aluminium GmbH and Corus
Deutschland GmbH in the form to be agreed between the parties as
soon as reasonably practicable following the date hereof;
"PROPERTIES" means the properties described in schedule 5 or any
part or parts thereof and "PROPERTY" shall mean any one of them;
"RD&T AGREEMENT" means the research, development and technology
agreement between Corus Technology BV, the Seller and certain
members of the Buyer's Group in the agreed form;
"RELATED PERSON" means in relation to any party its holding
companies and the subsidiary certain members of the Buyer's Group
undertakings and associated companies from time to time of such
holding company, all of them and each of them as the context admits;
"SEC" means the US Securities and Exchange Commission;
"SECOND 2004 AND 2005 IFRS AUDITED ACCOUNTS" means the audited
aggregated accounts for the Group comprising the balance sheet,
income statement and cash flow statement of the Group, together in
each case with the notes thereon and auditors' report, (including,
for the avoidance of doubt, the financial results of Corus L.P. and
Corus Aluminium, Inc.) for the periods ending on 31 December 2004
and 31 December 2005 including a reconciliation to US GAAP and
"SECOND 2004 IFRS AUDITED ACCOUNTS" and "SECOND 2005 IFRS AUDITED
ACCOUNTS" shall be construed accordingly;
"SELLER'S ACCOUNT" means the account to be notified by the Seller to
the Buyer in writing at least five Business Days prior to
Completion;
"SELLER DEED OF RELEASE" means a deed releasing each Group Company
from the Intra-Group Payables, in the form to be agreed between the
parties as soon as reasonably practicable following the date hereof;
"SELLER'S GROUP" means the Seller, any holding company of the
Seller, and the subsidiary undertakings and the associated companies
(excluding the Group) from time to time of such holding companies,
all of them and each of them as the context admits;
"SELLER'S GROUP EMPLOYEES" means persons employed by a member of the
Seller's Group who are working within the Business (other than
persons whose services will be provided to the Group pursuant to the
RD&T Agreement), being those persons set out in schedule 14;
"SELLING SUBSIDIARIES" means the persons whose names are set out in
part B of schedule 1;
"SELLER WARRANTIES" means the warranties of the Seller set out in
schedule 3;
"SENIOR EMPLOYEE" means an employee of the Group or the Seller's
Group (as the case may be) in an executive position whose annual
salary is (euro)100,000 or more (gross of Tax);
"SHARES" means all of the issued shares in the capital of the
Companies;
"SILO DEMOLITION AGREEMENT" means the agreement between, inter alia,
Corus Properties (Germany) Limited, Stadtwerke Koblenz GmbH and the
City of Koblenz dated 7 August 2003 (as amended on 5 October 2005)
pursuant to which Corus Properties Limited is obliged to demolish
silos on the properties formally leased by CEM Cement Coblenz GmbH &
Co. KG from Stadtwerke Koblenz GmbH;
"STATEMENT" has the meaning given to it in clause 8.1;
"SUBSIDIARY" means any subsidiary undertaking of the Company
specified in part B of schedule 2 and "SUBSIDIARIES" means all those
subsidiary undertakings;
"SUBSTANTIAL CUSTOMER" means the ten largest customers of the Group
measured by the share of the Group's gross revenues attributable to
them for the twelve months ending on 31 December 2005;
"SUBSTANTIAL SUPPLIER" means the ten largest suppliers to the Group
measured by the share of the Group's gross operating costs
attributable to them for the 12 months ending on 31 December 2005;
"SYSTEMS" means all computer hardware, software, systems and
networks;
"TA" means the Income and Corporation Taxes Xxx 0000;
"TARGET AUDITORS" means PricewaterhouseCoopers LLP;
"TAX" or "TAXATION" includes, without limitation, (a) taxes on
income, profits and gains, (including for the avoidance of doubt
German trade tax) and (b) all other taxes, levies, duties, imposts,
charges and withholdings of any nature, including any excise,
property, value added, sales, use, occupation, transfer, franchise
and payroll taxes and any national insurance, social security
contributions or public health insurance payments, municipal taxes,
environmental taxes charges and levies, sewerage duties, regional
and local taxes, capital profits taxes, lease taxes, severance
taxes, property and occupation taxes, stamp taxes and transfer
taxes, customs duties, investment grants, and secondary tax
liabilities (including liabilities under section 73 German General
Tax Act ("Abgabenordung")), and any payment whatsoever which the
relevant person may be or become bound to make to any person as a
result of the discharge by that person of any tax which the relevant
person has failed to discharge, together with all penalties, tax
increases, charges and interest relating to any of the foregoing or
to any late or incorrect return in respect of any of them, and
regardless of whether such taxes, levies, duties, imposts, charges,
withholdings, penalties and interest are chargeable directly or
primarily against or attributable directly or primarily to the
relevant person or any other person and of whether any amount in
respect of them is recoverable from any other person;
"TAX AUTHORITY" or "TAXATION AUTHORITY" means any person, authority,
body, agency or official entitled to enforce or collect Tax in any
jurisdiction;
"TAX DEED" means a deed of indemnity in the agreed form;
"TAXATION STATUTES" means all statutes, statutory instruments, royal
decrees, orders enactments, laws, by-laws, directives, rules and
regulations, whether domestic or foreign decrees, providing for or
imposing any Tax;
"TNFM" means Tianjin Non-Ferrous Metal Group Co. Ltd., a limited
liability company established in accordance with the laws of the
PRC;
"TOTAL ADJUSTMENT" means the aggregate sum of the Cash Adjustment,
the Debt Adjustment and the Working Capital Adjustment (and, for the
avoidance of doubt, the resulting amount may be positive or
negative);
"TRANSACTION DOCUMENTS" has the meaning given to it in clause
27.1(a);
"TRANSITIONAL SERVICES AGREEMENT" means the agreement between the
Seller and the Buyer for the provision of certain services following
Completion in the form to be agreed between the parties as soon as
reasonably practicable following the date hereof;
"UK LISTING AUTHORITY" means the Financial Services Authority in its
capacity as the competent authority for the purposes of Part VI of
the Financial Services and Markets Xxx 0000 including where the
context so permits, any committee, employee, officer or servant to
whom any function of the UK Listing Authority may from time to time
be delegated;
"UNLISTED ONSITE ISSUES" means any contamination, exposure to
Hazardous Substances or Business Non-Compliance matters that might
give rise to any Liabilities under Environmental Laws, in each case
occurring or existing at or prior to Completion in relation to the
Properties;
"UNREGISTERED INTELLECTUAL PROPERTY" means Intellectual Property
which is not the subject of a registration or an application for
registration;
"US FEDERAL TAX CODE" means the US Internal Revenue Code of 1986;
"US GAAP" means generally accepted accounting principles in the
United States;
"VAT" means value added tax as charged pursuant to the 1st VAT
Directive 67/227/EEC and the 6th VAT Directive 77/388/EEC, and any
similar Tax;
"WASTE" means waste including anything which is discarded or
disposed of or which the holder intends or is required to discard or
dispose of as waste and anything which is abandoned;
"WORKERS" means the employees, directors, officers, workers and
self-employed contractors of the Group; and
"WORKING CAPITAL ADJUSTMENT" means:
(a) if the Actual Working Capital Amount is less than
(euro)223,000,000, the Actual Working Capital Amount less
(euro)223,000,000;
(b) if the Actual Working Capital Amount is more than
(euro)235,000,000, the Actual Working Capital Amount less
(euro)235,000,000; and
(c) if the Actual Working Capital Amount is an amount equal to or
greater than (euro)223,000,000 and equal to or less than
(euro)235,000,000, zero,
(and, for the avoidance of doubt, the amount resulting under clauses
(a) or (b) above may be positive or negative).
1.2 In this agreement unless otherwise specified, reference to:
(a) a "SUBSIDIARY UNDERTAKING" is to be construed in accordance
with section 258 of the Companies Xxx 0000 (as amended) and a
"SUBSIDIARY" or "HOLDING COMPANY" is to be construed in
accordance with section 736 of the Companies Act (as amended);
(b) a document in the "AGREED FORM" is a reference to that document
in the form approved and for the purposes of identification
signed by or on behalf of each party;
(c) "INCLUDES" and "INCLUDING" shall mean including without
limitation;
(d) a "PARTY" means a party to this agreement and includes its
assignees (if any) and/or the successors in title to
substantially the whole of its undertaking;
(e) a "PERSON" includes any person, individual, company, firm,
corporation, government, state or agency of a state or any
undertaking (whether or not having separate legal personality
and irrespective of the jurisdiction in or under the law of
which it was incorporated or exists);
(f) a "STATUTE" or "STATUTORY INSTRUMENT" or "ACCOUNTING STANDARD"
or any of their provisions is to be construed as a reference to
that statute or statutory instrument or accounting standard or
such provision as the same may have been amended or re-enacted
before the date of this agreement;
(g) "CLAUSES", "PARAGRAPHS" or "SCHEDULES" are to clauses and
paragraphs of, and schedules to, this agreement;
(h) "WRITING" includes any methods of representing words in a
legible form (other than writing on an electronic or visual
display screen) or other writing in non-transitory form;
(i) words denoting the singular shall include the plural and vice
versa and words denoting any gender shall include all genders;
(j) the time of day is reference to time in London, England;
(k) references in any Seller Warranty or in this clause 1 to any
monetary sum expressed in euro shall, where such sum is
referable in whole or in part to a particular jurisdiction, be
deemed to be a reference to an equivalent amount in the local
currency of that jurisdiction translated at the prevailing
exchange rate applicable to that amount of euro by reference to
middle market rates quoted by National Westminster Bank plc
immediately before close of business in London on the date of
this agreement or, if such day is not a Business Day, on the
Business Day immediately preceding such day; and
(l) where any amount in any local currency is required to be
converted into euro for the purposes of preparing the
Completion Accounts and Statement, such amount shall be
translated into euro at the Exchange Rate for that local
currency three days before the Completion Date.
1.3 The schedules form part of the operative provisions of this
agreement and references to this agreement shall, unless the context
otherwise requires, include references to the schedules.
1.4 The index to and the headings and the descriptive notes in brackets
relating to provisions of Taxation Statutes in this agreement are
for information only and are to be ignored in construing the same.
2. SALE AND PURCHASE
2.1 Upon the terms and subject to the conditions of this agreement, the
Seller shall procure the sale of and the Buyer, for itself and as
agent for the Buying Subsidiaries, shall purchase the full legal and
beneficial interest in (x) the Shares with full title guarantee and
free from any Encumbrance in each case as at and with effect from
Completion together with all accrued benefits and rights attached
thereto at Completion and all dividends declared but unpaid after
the Completion Date in respect of the Shares and (y) the Corus
Deutschland Loan.
2.2 The Seller waives or agrees to procure the waiver of any rights or
restrictions conferred upon it in relation to the Shares under the
articles of association of the Companies or otherwise.
2.3 The total consideration for the sale and purchase of the Shares and
the assignment of the Corus Deutschland Loan shall be as set out in
clause 6.3 (Obligations following Completion). At Completion, on
account of the total consideration for the sale and purchase of the
Shares and the assignment of the Corus Deutschland Loan, the Buyer,
for itself and as agent for the Buying Subsidiaries, shall pay to
the Seller in cash an amount (the "PAYMENT ON COMPLETION") which
shall be:
(a) if the China Change of Control Waiver is obtained and clause
5.6 does not apply, (euro)666,400,000, less Estimated Debt,
plus Estimated Cash, less the EBITDA Adjustment Amount, if any;
or
(b) if the China Change of Control Waiver is not obtained and
clause 5.6 does apply, (euro)660,230,000, less Estimated Debt,
plus Estimated Cash, less the EBITDA Adjustment Amount, if any.
3. CONDITIONS
3.1 Completion is conditional upon the fulfilment of each of the
Conditions as follows:
(a) all filings having been made and all or any applicable waiting
and other time periods (including extensions thereto) under the
HSR Act (as amended) and the regulations thereunder having
expired, lapsed or been terminated as appropriate in respect of
the acquisition of the Shares or any matters arising therefrom;
(b) it being established, in terms reasonably satisfactory to the
Buyer, that it is not the intention of the European Commission,
pursuant to the EC Merger Regulation, to initiate proceedings
under Article 6(1)(c) of the EC Merger Regulation and:
(i) in the event that a request under Article 9(2) of the EC
Merger Regulation has been made by a European Union or
EFTA member state, the European Commission indicating,
in terms reasonably satisfactory to the Buyer, that it
does not intend to refer the proposed acquisition of the
Companies by the Buyer or any matters arising therefrom
to any competent authority or European Union or EFTA
member state; and
(ii) no indication having been made that a European Union or
EFTA member state intends to take appropriate measures
to protect legitimate interests pursuant to Article
21(4) of such EC Merger Regulation in relation to the
proposed acquisition of the Companies by the Buyer and
any matters arising therefrom;
(c) there not having occurred any change, event or occurrence which
has had or could reasonably be expected to have a Material
Adverse Effect, provided that such change, event or occurrence
is not caused by general economic conditions or by facts or
circumstances generally applicable to downstream aluminium
businesses unless such conditions, facts or circumstances are
shown by the Buyer to affect the Business to a materially
greater extent than they affect other downstream aluminium
businesses. For the purposes of this clause 3.1(c), "MATERIAL
ADVERSE EFFECT" means a material adverse effect on the assets,
liabilities or financial position of the Business taken as a
whole, being either: (i) a likely reduction in the EBITDA of
the Group as for the 12 month period immediately following the
date that all Conditions have been satisfied (other than the
Condition set out in this clause 3.1(c)), as compared to EBITDA
of the Group as set out in the Budget for the same 12 month
period, of 10 per cent. or more; or (ii) a one-off cost or
liability affecting the Business which is greater than
(euro)73,440,000;
(d) the delivery to the Buyer of:
(i) the Second 2004 and 2005 IFRS Audited Accounts;
(ii) the 2005 and 2006 IFRS Unaudited Quarterly Accounts; and
(iii) from the Target Auditors:
(A) any consents required in connection with any SEC
registration statement incorporating any financial
statements referred to in this clause 3.1(d); and
(B) any comfort letters required pursuant to the
requirements of SAS 72 covering any registration
statement or confidential offering memorandum, as
applicable (including any documents incorporated by
reference therein);
(e) there not having occurred a material breach of the Seller's
conduct of business obligations set out in clause 4 (Period to
Completion) and schedule 10; and
(f) the change of the business year of Corus Aluminium GmbH to a
business year starting on the day after the Completion Date, as
provided for in clause 4.6, having been registered with the
relevant commercial register before the Completion Date.
3.2 The Buyer undertakes to use all reasonable endeavours to procure the
fulfilment of the Conditions set out in clauses (a) and (b) of
clause 3.1 above.
3.3 The Seller undertakes to use all reasonable endeavours to procure
the fulfilment of the Conditions set out in clauses (a) to (b)
inclusive, and (d) to (f) inclusive, of clause 3.1 above.
3.4 The Buyer may waive in whole or in part the Conditions set out in
clauses (c), (d) or (e) of clause 3.1 above. The Conditions set out
in clauses 3.1(a), (b) and (f) above may be waived only with the
consent of the Buyer and the Seller.
3.5 If all of the Conditions (save for those compliance with which has
been waived in accordance with the terms of this agreement) have not
been fulfilled, or become incapable of satisfaction (as agreed by
the Seller and the Buyer, each acting reasonably), on or before 31
October 2006 this agreement shall terminate, with effect from
earlier of either that date, or the date on which any such Condition
becomes incapable of satisfaction.
3.6 Where the Buyer becomes aware before the Completion Date of any
matter which is a Material Adverse Effect within the meaning of the
Condition set out in clause 3.1(c) above, and which would,
therefore, give the Buyer the right to terminate the agreement, but
the Buyer elects (by written notice to the Seller) to waive such
Condition, the Buyer's rights shall continue to subsist (including
without limitation those rights under the Seller Warranties) but the
Seller shall then have the right to terminate this agreement
immediately on written notice to the Buyer, and following such
notice clause 3.7 shall apply.
3.7 If this agreement terminates in accordance with clauses 3.5 or 3.6
above, then the obligations of the parties shall automatically
terminate, save that the rights and liabilities of the parties which
have accrued prior to termination shall continue to subsist
(including without limitation those under clauses 22
(Announcements), 24 (Costs) and 27 (Entire Agreement) to 35 (Third
Party Rights) (inclusive)).
3.8 The Buyer and the Seller shall keep each other advised of the
progress towards the satisfaction of their respective obligations
under clauses 3.2 and 3.3 above, respectively.
4. PERIOD TO COMPLETION
4.1 Other than with the prior written consent of the Buyer (such consent
not to be unreasonably withheld or delayed), and pending Completion,
the Seller undertakes with the Buyer to procure that each Group
Company (other than Corus Tianjin) shall, and undertakes (so far as
it is reasonably able) that Corus Tianjin shall:
(a) operate its business and activities in their ordinary and usual
course so as to maintain the Business as a going concern and in
accordance in all material respects with the Budget; and
(b) comply with each of the undertakings set out in schedule 10,
provided that the Seller shall be permitted to effect the Pre-Sale
Re-Organisation, take any action requested in writing by the Buyer,
and take any action that is required in an emergency or disaster
situation to the extent that such action would minimize any adverse
impact of such situation on the Business.
4.2 Subject to clause 4.3, the Seller undertakes to the Buyer to procure
that it shall, and that the Group Companies and members of the
Seller's Group shall, give all such reasonable assistance to the
Buyer in raising equity and debt financing for the acquisition of
the Shares as the Buyer reasonably requests including, without
limitation, and in addition to the delivery of the Second 2004 and
2005 IFRS Audited Accounts and the 2005 and 2006 IFRS Unaudited
Quarterly Accounts:
(a) participating in meetings, presentations, drafting sessions,
management presentation sessions, "roadshows", sessions with
rating agencies, and due diligence sessions;
(b) assisting in the preparation of offering documentation and
materials for rating agency presentations;
(c) assisting in any tax or other structural planning;
(d) facilitating security arrangements and the pledging of
collateral; and
(e) obtaining accountant's comfort letters, legal opinions, surveys
and title insurance,
each as reasonably requested by the Buyer.
4.3 The obligations of the Seller in clause 4.2 above shall be subject
to the Buyer:
(a) only requesting such assistance if it is not reasonably
possible for the Buyer to take such action itself;
(b) indemnifying the Seller (for itself and on behalf of the
Seller's Group) for any liability the Seller and any member of
the Seller's Group has to third parties as a result of the
Seller providing (or procuring the provision of) such
assistance; and
(c) reimbursing the Seller for all reasonable documented
out-of-pocket expenses (excluding internal overheads) incurred
by the Seller and the Seller's Group in providing such
assistance together with any irrecoverable VAT provided that
any costs and expenses incurred by the auditors in connection
with the preparation and delivery of the 2005 and 2006 IFRS
Unaudited Quarterly Accounts, the First 2004 and 2005 IFRS
Audited Accounts and the Second 2004 and 2005 IFRS Audited
Accounts shall be for the account of the Seller.
4.4 Pending Completion, the Buyer and any person authorised by it shall
be given reasonable access to the Properties and to the Books and
Records of each Group Company and the directors and employees of
each Group Company shall be instructed to give as soon as reasonably
practicable all such information and explanations as the Buyer or
any such person may reasonably request.
4.5 As soon as reasonably practicable following the date hereof and
prior to Completion, the Seller shall deliver to the Buyer the First
2004 and 2005 IFRS Audited Accounts for the purpose of agreeing the
EBITDA figure in relation to the EBITDA Adjustment Amount. The
Seller and the Buyer shall within one Business Day of receipt by the
Seller of the First 2004 and 2005 IFRS Audited Accounts agree in
writing such EBITDA figure and the Seller shall notify the Target
Auditors in writing accordingly. Following receipt by the Target
Auditors of such written notice, the Second 2004 and 2005 IFRS
Audited Accounts shall be delivered to the Buyer as soon as
reasonably practicable thereafter.
4.6 The Seller undertakes to the Buyer to procure that, after the
Conditions pursuant to clause 3.1 (a) to (e) have been satisfied or
waived, a shareholders' resolution will be passed in notarised form
for Corus Aluminium GmbH on the change of its business year from the
calendar year to a business year starting on the day after the
Completion Date. Further, the Seller undertakes to the Buyer to
procure that the change of the business year is approved by the
relevant Tax Authority and will be applied for registration with the
competent commercial register as soon as possible after the approval
of the relevant Tax Authority has been obtained. The costs related
to the change of the business year shall be borne equally by the
Buyer and Seller.
5. COMPLETION
5.1 Completion shall take place at the offices of the Buyer's Solicitors
on the earlier of:
(a) 25 Business Days after a registration statement relating to the
securities which are proposed to be issued by the Buyer in
connection with the financing of the transactions contemplated
hereby has been declared effective by the SEC;
(b) 31 October 2006; or
(c) in the event that the Second 2004 and 2005 IFRS Audited
Accounts are delivered on or before 31 May 2006, 31 July 2006,
provided that, in any event, Completion shall not take place until
30 days after the date on which the Second 2004 and 2005 IFRS
Audited Accounts are delivered to the Buyer by the Seller. The Buyer
and the Seller shall each use their reasonable endeavours to ensure
the Completion Date occurs on the last day of a calendar month.
5.2 On Completion the Seller shall deliver to, or, if the Buyer shall so
agree, make available to, the Buyer the items listed in part A of
schedule 9.
5.3 On Completion the Seller shall procure the passing of board
resolutions (and, to the extent necessary, shareholder resolutions)
of each Group Company, or take any other action necessary in respect
of the:
(a) sanctioning (subject where necessary to due stamping) the
transfers, and where necessary the registration of such
transfers, in respect of the Shares (and in respect of Corus
Tianjin, the change of indirect ownership of the Corus Tianjin
Equity Interests) ; and
(b) appointing those individuals who the Buyer has notified the
Seller of at least five Business Days prior to Completion to be
the directors and secretary (or equivalent in any relevant
jurisdiction) of each Group Company; and
(c) appointing those individuals who the Buyer has notified the
Seller of at least five Business Days prior to Completion to be
the members of the supervisory board of Corus Aluminium GmbH
(by way of shareholder resolution).
5.4 On Completion the Buyer shall (for itself and as agent for and on
behalf of the relevant member(s) of the Buyer's Group (including the
Group)) make or procure the making of the cash payments referred to
in clause 2.3 (Sale and Purchase), which are expressed to be payable
at Completion, to the Seller's Account, by way of telegraphic
transfer in immediately available funds.
5.5 On Completion, the Buyer (for itself and as agent for the Buying
Subsidiaries) shall deliver to, or, if the Seller shall so agree,
make available to, the Seller the items listed in Part B of Schedule
9.
5.6 At the date which is 10 Business Days before Completion, unless the
Seller has obtained the China Change of Control Waiver, the Seller
shall procure that Corus Aluminium Profiltechnik GmbH transfers the
Corus Tianjin Equity Interests to a member of the Seller's Group and
the provisions of clause 2.3(b) (Payment on Completion) shall apply.
5.7 On Completion, the Seller shall deliver to the Buyer full details in
writing of the hedging arrangements and hedged positions of the
Business as at Completion.
5.8 If in any respect the obligations of the Seller are not complied
with on Completion, the Buyer may:
(a) defer Completion to a date not more than 28 days after
Completion should have taken place but for the said default
(and so that the provisions of this clause 5, apart from this
clause 5.8(a), shall apply to Completion as so deferred); or
(b) proceed to Completion so far as practicable (without prejudice
to its rights hereunder),
by means of a notice to that effect in writing served on the Seller.
5.9 The Buyer acknowledges and agrees that on Completion all insurance
cover provided in relation to the Business and the assets of the
Group pursuant to the Policies taken out by members of the Seller's
Group shall cease with effect from Completion (but, for the
avoidance of doubt, to the extent that the Group is able to claim
under such insurance cover, the Group shall still have the right to
make claims under such insurance cover in respect of the period
prior to Completion).
5.10 On Completion:
(a) subject to clause 6.8, the Buyer shall procure that the
Estimated Intra-Group Payables shall be repaid in full to the
relevant members of the Seller's Group in immediately available
funds in the relevant currency without any set-off, restriction
or condition and without any deduction or withholding (save
only as required by law) by telegraphic transfer to the
Seller's Account; and
(b) subject to clause 6.8, the Seller shall procure that the
Estimated Intra-Group Receivables shall be repaid in full to
the relevant members of the Group in immediately available
funds in the relevant currency without any set-off, restriction
or condition and without any deduction or withholding (save
only as required by law) by telegraphic transfer to the Buyer's
Account.
5.11 The Seller undertakes to the Buyer to procure that the Profit and
Loss Sharing Agreement is terminated with effect as of the end of
the amended business year of Corus Aluminium GmbH.
6. OBLIGATIONS FOLLOWING COMPLETION
6.1 Within five Business Days of agreement or determination of the Total
Adjustment in accordance with the provisions of clause 8 (Completion
Accounts) and part B of schedule 7:
(a) the Seller, if and to the extent that the Total Adjustment is
negative, shall pay an amount equal to the Total Adjustment,
plus an amount in respect of interest thereon calculated at the
Default Rate from the Completion Date to the date of payment
under this clause 6.1, by way of telegraphic transfer in
immediately available funds to the Buyer's Account (for the
Buyer's own benefit and (to the extent applicable) the Buyer as
agent for any relevant Buying Subsidiary), which payment (save
for the interest thereon) shall take effect as an adjustment,
by way of reduction, in the Payment on Completion;
(b) the Buyer, if and to the extent that the Total Adjustment is
positive, shall pay (on its own account and (to the extent
applicable) the Buyer as agent for any relevant Buying
Subsidiary) an amount equal to the Total Adjustment, plus an
amount in respect of interest thereon calculated at the Default
Rate from the Completion Date to the date of payment under this
clause 6.1, by way of telegraphic transfer in immediately
available funds to the Seller's Account, which payment (save
for the interest thereon) shall take effect as an adjustment,
by way of increase, in the Payment on Completion;
(c) subject to clause 6.8, if any Intra-Group Payables included in
the Total Adjustment have not been paid to the relevant member
of the Seller's Group, the Buyer will procure their prompt
payment;
(d) subject to clause 6.8, if any Intra-Group Receivables included
in the Total Adjustment have not been paid to the relevant
member of the Group, the Seller will procure their prompt
payment;
(e) subject to clause 6.8, if the Intra-Group Payables included in
the Total Adjustment are less than the Estimated Intra-Group
Payables, the Seller shall pay to the Buyer (or such member of
the Group as the Buyer directs) a sum equal to the difference;
and
(f) subject to clause 6.8, if the Intra-Group Receivables included
in the Total Adjustment are less than the Estimated Intra-Group
Receivables, the Buyer shall pay to the Seller (or such member
of the Seller's Group as the Seller directs) a sum equal to the
difference.
6.2 If any sum due for payment under or in accordance with this
agreement by one party to another is not paid on the due date, the
party in default shall pay interest thereon (at the same time as
payment is made) at the Default Rate for the period from the due
date to the date of actual payment (both dates inclusive).
6.3 The final cash consideration for the sale and purchase of the Shares
and the assignment of the Corus Deutschland Loan shall be the
Payment on Completion following any adjustment in accordance with
the provisions of clause 6.1 above (the "FINAL CASH CONSIDERATION").
6.4 The Payment on Completion shall be allocated in accordance with
clause 6.10 except that, in the event that the Final Cash
Consideration is different from the Payment on Completion, the
parties shall agree such consequential adjustments as shall be
required to the amounts allocated in accordance with clause 6.10 (or
failing such agreement, either party shall be entitled to refer the
matter to be resolved by the Firm, in which event the provisions of
paragraph 6 of part B of schedule 7 shall apply save that the
reference in such clause to non-acceptance of the Completion
Accounts shall be to non-acceptance of the adjusted amounts in
relation to any amounts allocated to the member(s) of the Group
which are not agreed by the parties).
6.5 The Payment on Completion and any additional payments to adjust the
Payment at Completion in accordance with the provisions of clause
6.1 above or to adjust the Final Cash Consideration in accordance
with any other provision of this agreement or of the Tax Deed, shall
be paid free and clear of all deductions or withholdings whatsoever,
save only as may be required by law.
6.6 If any deductions or withholdings are required by law to be made
from any of the sums payable in respect of interest under clause
6.1, the Buyer shall be obliged to pay to the Seller, or the Seller
shall be obliged to pay to the Buyer, as the case may be, such sum
as will, after the deduction or withholding has been made, leave the
Seller, or the Buyer, as applicable, with the same amount as it
would have been entitled to receive in the absence of any such
requirement to make a deduction or withholding.
6.7 Any payments due from the Buyer to the Seller under clause 6.1 in
respect of a particular Group Company shall be set-off against any
payments due from the Seller to the Buyer (or a member of the Group)
in respect of the same Group Company under that clause.
6.8 The Seller shall procure that the relevant members of the Group
shall not participate under the Cash Pooling Agreements with effect
from the Completion Date and the Cash Pooling Agreements exclusively
between Corus Aluminium GmbH and Corus Deutschland GmbH shall be
terminated with effect from Completion. To the extent the total
balance under the Cash Pool Agreements between Corus Aluminium GmbH
and Corus Deutschland GmbH is in favour of Corus Aluminium GmbH, the
Seller shall procure that Corus Deutschland GmbH repays the
respective balance amount to Corus Aluminium GmbH. To the extent the
total balance under the Cash Pool Agreements between Corus Aluminium
GmbH and Corus Deutschland GmbH is in favour of Corus Deutschland
GmbH, this balance amount shall be sold and transferred to the
Buyer.
6.9 Following Completion, the Buyer agrees to use its reasonable
endeavours to procure that Corus Aluminium Walzprodukte GmbH ("CAW")
assists Corus Properties (Germany) Limited and the Seller with
respect to the fulfilling of their obligations and the enforcement
of their rights under or in connection with the CEM Settlement
Agreement and the Silo Demolition Agreement. Such assistance shall,
without limitation, include: (i) upon request by the Seller and/or
Corus Properties (Germany) Limited, the provision of documents
know-how and background knowledge regarding the dispute and/or the
issues in relation to the CEM Settlement Agreement and the Silo
Demolition Agreement as well as all and any facts relating thereto;
(ii) upon request by the Seller and/or Corus Properties (Germany)
Limited the participation in meetings with the Stadtwerke Koblenz
GmbH and/or the City of Koblenz; and (iii) providing written notice
(containing reasonable details of such breach or event) to the
Seller and Corus Properties (Germany) Limited as soon as reasonably
practicable following it becoming aware of a breach of the CEM
Settlement Agreement and/or the Silo Demolition Agreement or any
other event that may effect the enforcement of the Seller's and/or
Corus Properties (Germany) Limited's rights thereunder. It is
understood and agreed that any assistance rendered by the Buyer or
by CAW will be subject to that assistance not interfering with the
day to day operations of their business or interfering with any of
their respective employee's performance of their day to day duties.
The obligations of the Buyer in this clause 6.9 shall be subject to
the Seller:
(a) indemnifying the Buyer (for itself and on behalf of the Buyer's
Group) for any liability the Buyer and any member of the
Buyer's Group has to third parties as a result of the Buyer
providing (or procuring the provision of) such assistance; and
(b) reimbursing the Buyer for all reasonable documented
out-of-pocket expenses (excluding internal overheads) incurred
by the Buyer and the Buyer's Group in providing such assistance
together with any irrecoverable VAT.
6.10 At least 10 Business Days prior to Completion, the Buyer and the
Seller shall, acting reasonably, agree the allocation of the Payment
on Completion. Such allocation shall be determined by applying, on a
consistent basis, any applicable Tax laws or practices and by taking
account of any material Tax efficiency, that may be available to the
Buyer (or any member of the Group) or the Seller (or any member of
the Seller's Group).
6.11 The Buyer undertakes to the Seller to procure that an application
for the registration of the termination of the Profit and Loss
Sharing Agreement with the competent commercial register is made
without undue delay after the Completion Date.
7. FOREIGN EXCHANGE CONTRACTS
7.1 The Seller and the Buyer hereby agree that they will use their
respective reasonable endeavours to agree a mutually acceptable
arrangement to take effect as at Completion in respect of each
Foreign Exchange Contract.
8. COMPLETION ACCOUNTS
8.1 The Buyer and the Seller shall use all reasonable endeavours to
procure that, after Completion, Completion Accounts in relation to
the Group on an aggregated basis, together with a statement (the
"STATEMENT") of:
(a) the Actual Working Capital Amount;
(b) the Working Capital Adjustment;
(c) the Actual Debt;
(d) the Debt Adjustment;
(e) the Actual Cash;
(f) the Cash Adjustment; and
(g) the Total Adjustment,
in each case, as at close of business on the Completion Date, are
prepared in accordance with the provisions of part 1 to 8 of part B
of schedule 7.
9. POST COMPLETION UNDERTAKINGS
9.1 At or as soon as practicable following Completion, the Seller
undertakes to the Buyer to use all reasonable endeavours to ensure
that each Group Company is released from any guarantee, indemnity,
bond, letter of comfort or Encumbrance or other similar obligation
given or incurred by it prior to Completion which relates in whole
or in part to debts or other liabilities or obligations, whether
actual or contingent, of a member of the Seller's Group and prior to
such release the Seller undertakes to the Buyer (on behalf of itself
and as trustee on behalf of each Group Company) to keep each Group
Company fully indemnified against any failure to make any such
repayment or any liability (to the extent such repayment or
liability relates to any member of the Seller's Group) arising under
any such guarantee, indemnity, bond, letter of comfort or
Encumbrance.
9.2 At or as soon as practicable following Completion, the Buyer
undertakes to the Seller to use all reasonable endeavours to ensure
that each member of the Seller's Group is released from any
guarantee, indemnity, bond, letter of comfort or Encumbrance or
other similar obligation given or incurred by it which relates in
whole or in part to debts or other liabilities or obligations,
whether actual or contingent, of any Group Company including any
such guarantee required to be provided by Corus Deutschland GmbH to
a third party (other than any member of the Seller's Group) in
relation to the debts, liabilities or obligations, whether actual or
contingent, of Corus Aluminium GmbH pursuant to the Profit and Loss
Termination Agreement and prior to such release the Buyer undertakes
to the Seller (on behalf of itself and as trustee on behalf of each
member of the Seller's Group) to keep each member of the Seller's
Group fully indemnified against any failure to make any such
repayment or any liability (to the extent such repayment or
liability relates to any Group Company) arising under any such
guarantee, indemnity, bond, letter of comfort or Encumbrance.
9.3 If the China Control Waiver is not obtained by Completion, and
clause 5.6 applies, then if the China Control Waiver is acquired and
provided to the Buyer within a period of 3 months of Completion, the
Buyer (as agent for the Buying Subsidiaries) agrees that it will
purchase the Corus Tianjin Equity Interests as soon as practicable
after the date on which the China Control Waiver is provided to it,
in consideration for the payment of (euro)6,170,000, and otherwise
on the terms of this agreement as if clause 5.6 had not applied.
10. SELLER WARRANTIES
10.1 The Seller warrants to the Buyer (for itself and as trustee for the
Buying Subsidiaries) on the terms set out in schedule 3 as at the
date of this agreement and each of the Seller Warranties shall be
construed as a separate warranty and shall not be limited by the
terms of any of the other Warranties or by any other term of this
agreement (other than clause 10.5).
10.2 Any information supplied by or on behalf of any Group Company to or
on behalf of the Seller in connection with the Seller Warranties,
the Disclosure Letter or otherwise in relation to the business and
affairs of any Group Company shall not constitute a representation
or warranty or guarantee as to the accuracy thereof by any Group
Company and the Seller hereby waives any and all claims which it
might otherwise have against any Group Company or any of their
respective directors, officers, employees, agents or advisers in
respect thereof save in respect of any rights it may have against
any of them in respect of fraud or fraudulent concealment.
10.3 Any claim under the Seller Warranties is subject to the terms and
provisions of schedule 4.
10.4 The Seller shall be under no liability under the Seller Warranties
in relation to any matter forming the subject matter of a claim
thereunder to the extent that the same or circumstances giving rise
thereto are fairly disclosed in the Disclosure Letter.
10.5 Save for any liability in respect of any claim arising for breach of
the Seller Warranties set out in paragraph 3 (Accounts) of schedule
3, the Seller shall only be liable in respect of a claim for breach
of warranty arising in respect of:
(a) any of the Properties, under the Seller Warranties set out in
paragraph 18 (Properties) of schedule 3;
(b) in respect of matters relating to Intellectual Property, under
the Seller Warranties set out in paragraph 6 (Intellectual
Property) and paragraph 11 (Information Technology and Data
Protection) of schedule 3;
(c) in respect of matters relating to Environment, under the Seller
Warranties set out in paragraph 21 (Environmental and Health
and Safety matters) of schedule 3; and
(d) in respect of Tax, under the Seller Warranties set out in
paragraph 20 (Taxation) of schedule 3 (without prejudice to any
claim arising under the Tax Deed).
10.6 The Buyer acknowledges and agrees that the Seller does not, save as
set out in the Seller Warranties, make any warranty as to the
accuracy of forecasts, estimates, projections, statements of intent
or statements of honestly expressed opinion provided to the Buyer
(howsoever provided) on or prior to the date of this agreement,
including, without limitation, in the Information Memorandum or the
Disclosure Letter or in the documents provided to the Buyer or its
advisers in the course of the Buyer's due diligence exercise.
10.7 Subject to clause 3, notwithstanding that the Buyer becomes aware at
any time (whether it does so by reason of any disclosure made in the
Disclosure Letter or otherwise) that there has been any breach of
the Seller Warranties or any other term of this agreement, the Buyer
shall not be entitled to rescind this agreement or treat it as
terminated but shall be entitled to claim damages or exercise any
other right, power or remedy under this agreement or as otherwise
provided by law.
10.8 Any payment due from the Seller in respect of any claim under this
agreement shall for all purposes be deemed to be and shall take
effect as a reduction in the Final Cash Consideration paid by the
Buyer, for itself and as agent for the Buying Subsidiaries, for the
Shares.
11. BUYER WARRANTIES
The Buyer, for itself and as agent for the Buying Subsidiaries,
warrants to the Seller in the terms of the Buyer Warranties and each
of the Buyer Warranties shall be deemed to be a separate warranty.
12. PROTECTION OF KNOW-HOW AND GOODWILL
12.1 Subject to clause 12.2, the Seller hereby undertakes to procure that
(except as otherwise agreed in writing with the Buyer) neither the
Seller nor any of its subsidiary undertakings from time to time will
either solely or jointly with any other person (either on its own
account or as the agent of any other person):
(a) for a period of 36 months from Completion, carry on or be
engaged or interested directly or indirectly in a business
which competes with the Business carried on by any member of
the Group at Completion; and
(b) for a period of 18 months from Completion solicit or accept the
custom of any person in respect of aluminium-based goods or
services competitive with those manufactured or supplied by any
Group Company during the period of 24 months immediately prior
to Completion, such person having been a customer of the
Company in respect of such aluminium-based goods or services
during such period.
12.2 Nothing in clause 12.1 above shall prevent or restrict any member of
the Seller's Group from (inter alia):
(a) carrying on or being engaged in or economically interested in
any business anywhere in the world which, immediately following
the Completion Date, it carries on or is engaged in or
economically interested in, or any reasonable extension
thereof;
(b) carrying on or being engaged in or economically interested in
any business referred to in clause 12.1(a) above after such
time as the Buyer's Group ceases to carry on or be engaged in
or economically interested in such business to any material
extent;
(c) being the holder of shares (conferring not more than five per
cent. of the votes which could normally be cast at a general
meeting of that company) or debentures of a company which is
engaged in any business and where the Seller's Group does not
exercise any material influence within that Company;
(d) acquiring the whole or any part of a business or the share
capital of a company or group of companies whose business or a
part of whose business, which, in each case, includes
operations the carrying on of which would otherwise amount to a
breach of the undertaking contained in clause 12.1 above (the
"COMPETITIVE OPERATIONS"), as part of a larger acquisition or
series of related acquisitions if:
(i) such larger acquisition or series of related
acquisitions is not made with the sole or main purpose
of acquiring the Competitive Operations; and
(ii) the Competitive Operations' gross revenues represent
less than 20 per cent. of the gross revenues of the
entity or entities acquired (as at the date of such
entity's or entities' last audited accounts) (the
"ACQUIRED REVENUES");
(iii) where the revenues of the Competitive Operations
represent less than 20 per cent. but more than 10 per
cent. of the Acquired Revenues, the Competitive
Operations are sold or otherwise transferred within 12
months of the date of completion of such acquisitions or
series of related acquisitions; and
(iv) where the revenues of the Competitive Operations
represent 10 per cent. or less of the Acquired Revenues,
there shall be no obligation on the relevant member of
the Seller's Group to sell or transfer the Competitive
Operations.
12.3 The Seller hereby undertakes to procure that (except as set out in
the Transaction Documents or as otherwise agreed in writing by the
Buyer) neither the Seller nor any of its subsidiary undertakings
from time to time will either solely or jointly acting with any
other person (either of its own account or as the agent of the other
person) for a period of 18 months from Completion, induce, solicit
or endeavour to entice to leave the service or employment of any
member of the Group any Senior Employee, provided that this shall
not restrict any member of the Seller's Group from issuing
advertisements or otherwise taking steps to recruit (and/or
subsequently employing) any person which is or are not specifically
aimed at a particular employee or group of employees of any Group
Company, or employing any person who makes an unsolicited approach
to the Seller's Group.
12.4 The Buyer hereby undertakes to procure that (except as set out in
the Transaction Documents or as otherwise agreed in writing with the
Seller) neither the Buyer nor any of its subsidiary undertakings
from time to time will either solely or jointly with any other
person (either on its own account or as the agent of any other
person) for a period of 18 months from Completion, induce, solicit
or endeavour to entice to leave the service or employment of any
member of the Seller's Group any Senior Employee, provided that this
shall not restrict any member of the Buyer's Group from issuing
advertisements or otherwise taking steps to recruit (and/or
subsequently employing) any person which is or are not specifically
aimed at a particular employee or group of employees of any member
of the Seller's Group, or employing any person who makes an
unsolicited approach to the Buyer's Group.
12.5 The parties agree that the undertakings contained in this clause 12
above are reasonable and are entered into for the purpose of
protecting the Know-How and goodwill of the business of each Group
Company and that, accordingly, the benefit of the undertakings may
be assigned by the Buyer or the Seller (as the case may be) and its
successors in title without the consent of the Seller or the Buyer
(as the case may be).
12.6 Each undertaking contained in this clause 12 is, and shall be,
construed as separate and severable, and if one or more of the
undertakings is held to be against the public interest or unlawful
or in any way an unreasonable restraint of trade or unenforceable in
whole or in part for any reason, the remaining undertakings or parts
thereof, as appropriate, shall continue to bind the Seller or the
Buyer (as the case may be).
12.7 If any undertaking contained in this clause 12 shall be held to be
void, but would be valid if deleted in part or reduced in
application, such undertaking shall apply with such deletion or
modification as may be necessary to make it valid and enforceable.
Without prejudice to the generality of the foregoing, such period
(as the same may have been reduced by virtue of this clause 12.7)
shall take effect as if reduced by successive months until the
resulting period becomes valid and enforceable.
13. CONFIDENTIAL INFORMATION
13.1 Subject to clauses 13.2, 16.2, or 16.3 (as applicable), the Buyer
and the Seller shall not and shall procure that no other member of
the Buyer's Group or the Seller's Group (as the case may be) shall
use or disclose to any person Confidential Information.
13.2 Clause 13.1 above does not apply to:
(a) disclosure of Confidential Information to or at the written
request of the Buyer or the Seller (as the case may be);
(b) use or disclosure of Confidential Information required to be
disclosed by law of any relevant jurisdiction or the NYSE, the
SEC, the UK Listing Authority, the London Stock Exchange, the
Panel or any governmental or regulatory body to which any party
is subject to or submits whether or not the requirement for the
disclosure of Confidential Information has the force of law;
(c) disclosure on a strictly confidential basis of Confidential
Information to professional advisers for the purpose of
advising the Seller or the Buyer (as the case may be);
(d) Confidential Information which becomes generally known other
than by the Seller's or the Buyer's (as the case may be) breach
of clause 13.1;
(e) disclosure of Confidential Information that the other party has
given prior written approval to the disclosure, such consent
not to be unreasonably withheld;
(f) disclosure of Confidential information to a member of the
Seller's Group or a member of the Buyer's Group (as the case
may be) which accepts the restrictions in the terms of this
clause ; and
(g) disclosure of Confidential Information required by that party
to enable it to enforce its rights under this agreement,
PROVIDED THAT any such Confidential Information disclosed pursuant
to (a) and (b) of this clause 13.2 shall only be disclosed after
notice to the other party.
13.3 With effect from Completion, the provisions of the confidentiality
agreement entered into between the Seller and the Buyer and dated 22
December 2005 shall, in respect of Information (as defined in such
confidentiality agreement) relating to the Business, be terminated
and the Buyer shall be released from its obligations and liabilities
thereunder in respect of such Information (as defined in the
aforementioned confidentiality agreement), save as regards any
antecedent breach. For the avoidance of doubt, the Buyer's
obligations in respect of such Information (as defined in the
aforementioned confidentiality agreement) which does not relate to
the Business shall continue notwithstanding Completion. Pending
Completion, if there is a conflict between the terms of such
confidentiality undertaking and the terms of this clause, the
provisions of this clause shall prevail.
13.4 In the event of the Seller becoming aware of any breach or potential
breach of any confidentiality undertaking given to the Seller by any
person within the last two years in relation to a potential sale by
the Seller of the Group or its assets and undertakings, the Seller
shall notify the Buyer promptly in writing of the breach or
potential breach and, if requested by the Buyer, shall use its
reasonable endeavours to enforce such confidentiality undertaking
PROVIDED THAT the Buyer shall reimburse the Seller for all
reasonable documented expenses incurred in relation to such
enforcement.
14. GENERAL INDEMNITIES
14.1 The Seller undertakes to the Buyer (for itself and as trustee for
each of the Buying Subsidiaries) that the Seller shall indemnify and
keep indemnified the Buyer and any member of the Buyer's Group
and/or any Group Company in respect of, where the amount of any
shortfall between budgeted capital expenditure for the period 1
January 2006 to Completion (as set out in the agreed form capital
expenditure budget for the Business) and the actual amount of
capital expenditure expended in the same period exceeds
(euro)3,000,000, the amount of such shortfall.
14.2 The Buyer undertakes to the Seller that the Buyer shall (as agent
for the Buying Subsidiaries), indemnify and keep indemnified the
Seller and any member of the Seller's Group in respect of, where the
amount of any excess between budgeted capital expenditure for the
period 1 January 2006 to Completion (as set out in the agreed form
capital expenditure budget for the Business) and the actual amount
of capital expenditure expended in the same period exceeds
(euro)3,000,000, the amount of such excess.
15. EMPLOYEES
15.1 The Seller undertakes to the Buyer (for itself and as trustee for
the Group Companies) that the Seller's Group Employees will fulfil
the terms of their secondment and any other person currently
employed by a member of the Seller's Group but who is at the date of
this agreement working on secondment within the Business who is
identified in writing by the Seller to the Buyer prior to Completion
will, subject to the parties agreeing (each acting reasonably),
fulfil the terms of such secondment.
15.2 The Buyer (for itself and as agent for the Group) undertakes to the
Seller that the Business Secondee will fulfil the terms of his
secondment and any other person currently employed by a member of
the Group but who is at the date of this agreement working on
secondment within the Seller's Group's business who is identified in
writing by the Seller to the Buyer prior to Completion will, subject
to the parties agreeing (each acting reasonably), fulfil the terms
of such secondment.
15.3 Subject to clause 15.4, the Seller and the Buyer (as the case may
be) shall each use its reasonable endeavours to procure that each of
the employees of the Seller's Group whose name is set out in
Schedule 15, subject to such changes as may be agreed between the
parties (each acting reasonably) prior to Completion (the
"TRANSFERRING EMPLOYEES") is, with effect from Completion, employed
by a member of the Group (or such other entity that is to become a
member of the Buyer's Group after Completion as the Buyer shall
notify the Seller of at least fifteen Business Days prior to
Completion).
15.4 The terms of the employment of any Transferring Employee shall be
subject to the prior written consent of the Buyer, such consent not
to be unreasonably withheld, and provided further that such terms
are on substantially similar terms to those under which such
Transferring Employee was employed as at the date of this agreement.
16. INTELLECTUAL PROPERTY
16.1 In the event that, following Completion:
(a) a member of the Buyer's Group has retained, or pursuant to this
agreement, acquired any Intellectual Property which, prior to
Completion, was used exclusively or primarily by the business
of the Seller's Group, the Seller may notify the Buyer, and if
it does, the Buyer shall procure that such Intellectual
Property is transferred to the Seller within a reasonable time
following the date of such notice;
(b) a member of the Seller's Group has retained any Intellectual
Property which, prior to Completion, was used exclusively or
primarily by the Business, the Buyer may notify the Seller and,
if it does, the Seller shall procure that such Intellectual
Property is transferred to the Buyer within a reasonable time
following the date of such notice.
Notice given under clauses 16.1(a) or (b) above shall set out
reasonable details of the Intellectual Property that is required to
be transferred. Any transfer made pursuant to this clause 16.1 shall
be made free of charge and at the Buyer's expense (in respect of
transfers made pursuant to clause 16.1(a),) or the Seller's expense
(in respect of transfers made pursuant to clause 16.1(b)),
respectively.
16.2 The Buyer hereby grants to the Seller with effect from Completion
(for itself and on behalf of the members of the Seller's Group) a
non-exclusive, perpetual, worldwide, assignable (such assignment to
be in whole or part only on a sale or transfer of the business,
asset or entity to which such whole or partial licence relates),
royalty-free licence, with the right to sub-license (provided that
there shall be no right to sub-license such Unregistered
Intellectual Property for use in any business providing
aluminium-based goods or services except any such business operated
by the Seller's Group from time to time), to use any Unregistered
Intellectual Property acquired by any member of the Buyer's Group
pursuant to the transactions contemplated hereby or retained by a
member of the Group which is at, or was prior to, Completion used
(but not exclusively or primarily) by the business of any member of
the Seller's Group. On the sale or transfer of any business or
entity which has the benefit of this licence or any sub-licence
granted hereunder, such licence or sub-license shall immediately
terminate on the completion of any such sale or transfer if it is to
any person who is, at the relevant time, a Competitor of the
business of the Buyer's Group. Any improvements or other changes
made to any such Unregistered Intellectual Property by a licensee or
sub-licensee benefiting from such licence or sub-licence shall be
owned by the licensee or sub-licensee.
16.3 The Seller hereby grants to the Buyer with effect from Completion
(for itself and on behalf of the members of the Buyer's Group) a
non-exclusive, perpetual, worldwide, assignable (such assignment to
be in whole or part only on a sale or transfer of the business,
asset or entity to which such whole or partial licence relates),
royalty-free licence, with the right to sub-license (provided that
there shall be no right to sub-license such Unregistered
Intellectual Property for use in any business providing steel-based
goods or services except any such business operated by the Buyer's
Group from time to time, to use any such Unregistered Intellectual
Property retained by the Seller (or the Selling Subsidiaries)
pursuant to the transactions contemplated hereby which is at, or was
prior to, Completion used (but not exclusively or primarily) by the
Business. On the sale or transfer of any business or entity which
has the benefit of this licence or any sub-licence granted
hereunder, such licence or sub-licence shall immediately terminate
on the completion of any such sale or transfer if it is to any
person who is, at the relevant time, a Competitor of the business of
the Seller's Group. Any improvements or other changes made to any
such Unregistered Intellectual Property by a licensee or
sub-licensee benefiting from such licence or sub-licence shall be
owned by the licensee or sub-licensee.
16.4 For the purposes of this clause 16:
(a) "PRIMARILY" shall mean that the person using such Intellectual
Property "primarily" uses such Intellectual Property more than
the other party; and
(b) use of Intellectual Property shall be judged by reference to
the five years prior to Completion (or such other period as the
Buyer and the Seller shall agree, acting reasonably).
16.5 Subject to clause 16.3, the Buyer shall procure that all licences
(excluding, for the avoidance of doubt, any licence granted under
any Transaction Document) of any Intellectual Property owned by the
Seller's Group (or to be owned by the Seller pursuant to clause
16.1(a) above) granted to any member of the Group shall terminate at
Completion or as soon as practicable after Completion but no later
than 90 days following Completion.
16.6 Subject to clause 16.2, the Seller shall procure that all licences
(excluding, for the avoidance of doubt, any licence granted under
any Transaction Document) of any Intellectual Property owned by the
Group (or to be owned by the Buyer pursuant to clause 16.1(b) above)
granted to any member of the Seller's Group shall terminate at
Completion or as soon as practicable after Completion but no later
than 90 days following Completion.
16.7 At Completion, the Seller shall procure the transfer of the patents
identified in Schedule 1 of the Patent Assignment to the Buyer, or
the Buyer's designee, pursuant to the terms and conditions set forth
in the Patent Assignment for no additional consideration.
16.8 The Seller shall indemnify and keep indemnified the Buyer against
any loss suffered by the Buyer or any member of the Buyer's Group
and/or any Group Company as a result of any claim:
(i) of ownership (including any right of use, transfer or license
arising under applicable law) by a German employee or German
former employee of a Group Company (including the estate,
successors or heirs of, such employee),or
(ii) by any person to whom a German employee or German former
employee of a Group Company has assigned or transferred
(including by operation of law) any claim of ownership or has
licensed the right of use,
in or to any invention or patent created or arising prior to the
date of this Agreement and owned by a Group Company.
16.9 After the date hereof, the Seller shall use its reasonable
endeavours to resolve any such claims (actual or potential) referred
to in clause 16.8 prior to Completion. After Completion the Seller
and the Buyer shall both use their reasonable endeavours to resolve
any such claims in such a way as to minimise the loss suffered by
the Buyer or a member of the Buyer's Group and/or any Group Company.
The Buyer shall not agree to any settlement of any such claim, make
any admission or compromise without the Seller's prior written
consent. The Seller shall not agree to any settlement of any such
claim, make any admission or compromise, in each case, involving any
Group Company or the inventions or patents owned by a Group Company,
without the Buyer's prior written consent, not to be unreasonably
withheld, conditioned or delayed.
16.10 The Seller's maximum aggregate liability under clause 16.8 shall be
(euro)100 million.
16.11 The indemnity set out in clause 16.8 shall be subject to the
provisions of paragraphs 5 (except for paragraphs 5.1(a) and (d))
and 8 of schedule 4, and the Seller's obligation to indemnify the
Buyer pursuant to clause 16.8 is conditional upon written notice of
such claim being served upon the Seller by the Buyer no later than
five years after the Completion Date. The Buyer shall as soon as
reasonably practicable notify the Seller in writing of any matter,
claim or circumstance relevant to the indemnity as soon as it
becomes aware of the same. The Seller shall have the right to
conduct and defend any such claim.
16.12 For the avoidance of any doubt, the provisions of schedule 4, other
than as specified in clause 16.11 above, shall not apply to the
indemnity set out in clause 16.8.
17. USE OF CORUS NAME
17.1 The Buyer shall procure that, as soon as reasonably practicable
after Completion and in any event within six months of Completion,
each Group Company whose name contains the word "Corus" or
"Hoogovens" shall change its name so that it no longer includes such
words.
17.2 The Buyer shall procure that, within six months of Completion, the
words "Corus" or "Hoogovens" (and related logos), shall not be used
by any Group Company on stationery, marketing or any other external
written communications (save for written communications with
regulatory authorities in circumstances where it is not practicable
to cease to use the name within that time) of or by such Group
Companies. In addition, following Completion the Buyer shall use its
reasonable endeavours to use replacement labelling, where
practicable.
17.3 The Buyer shall use all reasonable endeavours to procure that the
Group Companies otherwise cease to use the words "Corus" and
"Hoogovens" (and related logos) as soon as reasonably practicable
after Completion.
17.4 Without prejudice to any of the foregoing provisions of this clause
17, the Buyer shall procure that all use of the "Corus" or
"Hoogovens" words by the Group Companies will cease within 18 months
of Completion, provided that the Buyer and the Group Companies may
continue to refer to "Corus" and "Hoogovens" in any factual,
historical context or historical records.
17.5 Subject to and except as provided in the Transitional Services
Agreement, the Buyer shall procure that the Group Companies do not
use any domain name containing the words "Corus" or "Hoogovens"
after Completion, and if any of the Group Companies is the
registrant of, or otherwise holds or controls, any domain name
containing the words "Corus" or "Hoogovens" after Completion the
Buyer shall (promptly after becoming aware of such matter) procure
that such domain name is transferred to the Seller free of charge.
18. HEDGING GUARANTEE
18.1 The Seller hereby irrevocably guarantees as principal obligor to the
Buyer the full performance by CMet of all of its obligations to any
Group Company under any agreement or arrangement between CMet and
any Group Company whether disclosed pursuant to paragraph 22 of
schedule 3 or otherwise, and any further agreements or arrangements
entered into between CMet and any Group Company from the date of
this agreement and Completion (copies of which shall be provided to
the Buyer at Completion) (the "HEDGING OBLIGATIONS").
18.2 If and whenever CMet defaults for any reason whatsoever in the
performance of any Hedging Obligations, the Seller shall forthwith
on demand perform (or procure the performance of) the relevant
Hedging Obligations so that the same benefits shall be conferred on
the relevant Group Company as would have been received if such
Hedging Obligations had been duly performed by CMet.
18.3 The guarantee set out in this clause 18 is to be a continuing
security which shall remain in full force and effect until all of
the Hedging Obligations have been fulfilled or have expired in
accordance with their terms and this guarantee is to be in addition,
and without prejudice, to, and shall not merge with, any other
right, remedy, guarantee, indemnity or security which the Buyer may
now or hereafter hold in respect of all or any of the Hedging
Obligations.
18.4 The liability of the Seller under this guarantee shall not be
affected, impaired or discharged by reason of any act, omission,
matter or thing which but for this provision might operate to
release or otherwise exonerate the Seller from its obligations
hereunder, including:
(a) any amendment, variation or modification to, or replacement of
this agreement or any of the agreements referred to in clause
18.1;
(b) the taking, variation, compromise, renewal, release, refusal or
neglect to perfect or enforce any rights, remedies or
securities against CMet;
(c) any time or indulgence or waiver given to, or composition made
with, CMet; or
(d) CMet having become insolvent, going into receivership or
liquidation or having an administrator appointed (or the
equivalent in its jurisdiction of incorporation).
18.5 This guarantee shall continue in full force and effect
notwithstanding:
(a) that any purported obligation of CMet to the Buyer (or any
security therefor) becomes wholly or partly void, invalid or
unenforceable for any reason whether or not known to the Buyer
or the Seller; or
(b) any incapacity or any change in the constitution of, or any
amalgamation or reconstruction of, the Seller or CMet.
19. ENVIRONMENTAL AND HEALTH AND SAFETY INDEMNITIES
The Seller undertakes to the Buyer (for itself and as trustee for
each of the Buying Subsidiaries) that the Seller shall, or shall
procure that the relevant Selling Subsidiary shall, indemnify and
keep indemnified the Buyer and any member of the Buyer's Group
and/or any Group Company in respect of any Losses arising in respect
of:
(a) any Identified Known Issues;
(b) any Unlisted Onsite Issues; and
(c) any Offsite Issues,
subject in each case to the provisions of schedule 12 (which
provisions shall prevail over any other provision of this agreement
to the extent that they conflict).
20. PRE-SALE RE-ORGANISATION
20.1 The Buyer may, prior to Completion, subject to the Seller's being
indemnified and secured to its reasonable satisfaction against any
liabilities to Tax that arise to the Seller or any member of the
Seller's Group as a result of such conversion, require that the
Seller shall procure that Corus International Services NV shall be
converted to a BVBA and is thereafter treated as an entity
disregarded from the person(s) who own(s) it for US federal tax
purposes as provided in Treasury Regulation 301.7701-2(c)(2).
20.2 The Seller shall use its reasonable endeavours to procure that, as
at Completion, there is delivered to the Buyer, in respect of Corus
Aluminium NV, an interim balance sheet and signed report on such
interim balance sheet from the statutory auditor of Corus Aluminium
NV, in each case dated on or about the date of Completion. The
Seller also agrees to use its reasonable endeavours to provide any
additional assistance that the Buyer shall reasonably request in
order to permit Corus Aluminium NV to be converted to a BVBA
immediately following Completion. The Buyer shall duly and
punctually reimburse the Seller for all reasonably incurred
documented out of pocket expenses by the Seller and the Seller's
Group in providing any such assistance save for costs and expenses
incurred by the Seller in connection with the preparation and
delivery of the interim balance sheet and signed report on such
interim balance sheet from the statutory auditors of Corus Aluminium
NV (in each case dated on or about the date of Completion) which
shall be borne equally by the Buyer and the Seller.
21. BOOKS AND RECORDS
21.1 The Buyer shall make available to the Seller any Books or Records of
any member of the Group (or, if practicable, the relevant parts of
those Books or Records) which are required by the Seller for the
purpose of dealing with its Tax and accounting affairs and,
accordingly, the Buyer shall, upon being given reasonable notice by
the Seller and subject to the Seller giving such undertaking as to
confidentiality as the Buyer shall reasonably require, procure that
such Books and Records are made available to the Seller for
inspection (between 9.00 a.m. and 5.00 p.m. on Business Days) and
copying (at the Seller's expense) for and only to the extent
necessary for such purpose and for a period of seven years from
Completion.
21.2 The Seller shall make available to the Buyer any Books or Records of
the Seller's Group (or, if practicable, the relevant parts of those
Books or Records) which are required by the Buyer for the purpose of
dealing with its Tax and accounting affairs and, accordingly, the
Seller shall, upon being given reasonable notice by the Buyer and
subject to the Buyer giving such undertaking as to confidentiality
as the Seller shall reasonably require, procure that such Books and
Records are made available to the Buyer for inspection (between 9.00
a.m. and 5.00 p.m. on Business Days) and copying (at the Buyer's
expense) for and only to the extent necessary for such purpose and
for a period of seven years from Completion.
22. ANNOUNCEMENTS
22.1 No party shall disclose the making of this agreement or its terms or
the existence or the terms of any other agreement referred to in
this agreement (except those matters set out in any press release in
the agreed form) and each party shall procure that each of its
Related Persons shall not make any such disclosure without the prior
consent of the other party unless disclosure is:
(a) to its professional advisers; or
(b) required by the law of any relevant jurisdiction or the rules
or standards of the London Stock Exchange, the UK Listing
Authority, the Panel, or the NYSE, the SEC or the rules and
requirements of any other regulatory body or pursuant to the
Dutch Merger Code 2000: (SER-Fusiegedragsregels 2000), whether
or not the requirement has the force of the law and disclosure
shall then only be made by that party:
(i) after it has taken all such steps as may be reasonable
and practicable in the circumstances to agree the
contents of such announcement with the other party
before making such announcement and provided that any
such announcement shall be made only after notice to the
other party; and
(ii) to the person or persons and in the manner required by
the law of the relevant jurisdiction or the rules or
standard of the London Stock Exchange, the UK Listing
Authority, the Panel, the NYSE, the SEC or such other
regulatory body or pursuant to the Dutch Merger Code
2000: (SER-Fusiegedragsregels 2000) or as otherwise
agreed between the parties,
provided that this clause 22.1 does not apply to announcements,
communications or circulars made or sent by the Buyer after
Completion to customers, clients or suppliers of any Group Company
to the extent that it informs them of the Buyer's acquisition of the
Shares or to any announcements containing only information which has
become generally available.
22.2 The restrictions contained in clause 22.1 above shall apply without
limit of time and whether or not this agreement is terminated.
23. ASSIGNMENT
23.1 This agreement is personal to the parties and, accordingly, subject
to clauses 12.5, 23.2 and 23.3, no party without the prior written
consent of the other shall assign, transfer, charge or declare a
trust of the benefit of all or any of any other party's obligations
nor any benefit arising under this agreement neither shall any party
delegate any of its obligations under this agreement or subcontract
their provision to any third party or agent whatsoever.
23.2 The Buyer (for itself and as agent for the Buying Subsidiaries) and
the Seller may (without the consent of the Seller or the Buyer,
respectively) assign to any member of the Buyer's Group or the
Seller's Group, as applicable, the benefit of all or any of the
Seller's or the Buyer's obligations, as applicable, or any benefit
it enjoys under this agreement provided however that such assignment
shall be without cost to and shall not result in any increased
liability, or any reduction in the rights of the Buyer or the
Seller, as the case may be and further provided that such assignment
shall not be absolute but shall be expressed to have effect only for
so long as the assignee remains a member of the Buyer's Group or the
Seller's Group, as applicable, and that immediately before ceasing
to be such a member the assignee shall assign the benefit to a
member of the Buyer's Group or the Seller's Group, as applicable.
23.3 The Buyer (for itself and as agent for the Buying Subsidiaries) may
assign or mortgage or charge to any provider (or security or
facilities agent of a provider) to it of debt finance (a "LENDER"),
or grant security to a Lender over, in each case by way of security
for financing, the benefit of the Seller's obligations under this
agreement and any benefit arising under or out of this Agreement.
Notwithstanding any such assignment, unless the Seller has received
written notice from a Lender of any enforcement of any such security
interest, the Seller shall deal solely with the Buyer (for itself
and as agent for the Buying Subsidiaries) and not any Lender in
connection with all matters arising out of this agreement.
24. COSTS
Unless expressly otherwise provided in this agreement each of the
parties shall bear its own legal, accountancy and other costs,
charges and expenses connected with the sale and purchase of the
Shares (including in relation to the negotiations leading up to the
sale and purchase of the Shares and the preparation, operation and
carrying into effect of this agreement and all other documents
entered into pursuant to it) it being understood and agreed that,
any German notarial costs incurred in connection with this
Agreement, will be paid for by the party who would typically be
responsible therefor under prevailing market practice in Germany.
25. EFFECT OF COMPLETION
25.1 The terms of this agreement (insofar as not performed at Completion
and subject as specifically otherwise provided in this agreement)
shall continue in force after and notwithstanding Completion.
25.2 The remedies of the Buyer and the Seller (as the case may be) in
respect of any breach of the Seller Warranties or the Buyer
Warranties (as the case may be) shall continue to subsist
notwithstanding Completion.
26. FURTHER ASSURANCES
Each of the parties shall from time to time upon request from the
other do or procure the doing of all acts and/or execute or procure
the execution of all such documents in so far as each is able and in
a form reasonably satisfactory to the party concerned for the
purpose of transferring to the Buyer the Shares and otherwise giving
that party the full benefit of this agreement.
27. ENTIRE AGREEMENT
27.1 The Buyer and the Seller acknowledge and agree that:
(a) this agreement together with any other documents referred to in
this agreement (together the "TRANSACTION DOCUMENTS")
constitute the entire and only agreement between the parties
and their respective Related Persons relating to the subject
matter of the Transaction Documents; and
(b) neither it nor any of its Related Persons have been induced to
enter into any Transaction Document in reliance upon, nor have
they been given, any warranty, representation, statement,
assurance, covenant, agreement, undertaking, indemnity or
commitment of any nature whatsoever (including, without
limitation, any information (written or oral) given in or
following presentations to the Buyer or its representatives by
management of the Group or the Seller's Group) other than as
are expressly set out in the Transaction Documents and, to the
extent that any of them have been, it unconditionally and
irrevocably waives any claims, rights or remedies which any of
them might otherwise have had in relation thereto;
provided that the provisions of this clause 27 shall not exclude any
liability which any of the parties or, where appropriate, their
Related Persons would otherwise have to any other party or, where
appropriate, to any other party's Related Persons or any right which
any of them may have to rescind this agreement in respect of any
statements made fraudulently by any of them prior to the execution
of this agreement or any rights which any of them may have in
respect of fraudulent concealment by any of them.
28. VARIATIONS
This agreement may be varied only by a document signed by or on
behalf of each of the Seller and the Buyer.
29. WAIVER
29.1 A waiver of any term, provision or condition of, or consent granted
under, this agreement shall be effective only if given in writing
and signed by the waiving or consenting party and then only in the
instance and for the purpose for which it is given.
29.2 No failure or delay on the part of any party in exercising any
right, power or privilege under this agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any such
right, power or privilege preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
29.3 No breach of any provision of this agreement shall be waived or
discharged except with the express written consent of the Seller and
the Buyer.
29.4 The rights and remedies herein provided are cumulative with and not
exclusive of any rights or remedies provided by law.
30. INVALIDITY
If any provision of this agreement is or becomes invalid, illegal or
unenforceable in any respect under the law of any jurisdiction:
(a) the validity, legality and enforceability under the law of that
jurisdiction of any other provision; and
(b) the validity, legality and enforceability under the law of any
other jurisdiction of that or any other provision,
shall not be affected or impaired in any way.
31. NOTICES
31.1 Any notice, demand or other communication given or made under or in
connection with the matters contemplated by this agreement shall be
in writing and shall be delivered personally or sent by fax or
prepaid first class post (air mail if posted to or from a place
outside the United Kingdom), telexes and email not being permitted:
In the case of the Buyer to:
Aleris International, Inc.
00000 Xxxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, Xxxx 00000-0000
Xxxxxx Xxxxxx
Fax: x0 000 000 0000
Attention: Xxxxx Xxxxx, Senior Vice-President, General Counsel and
Secretary
(with a copy to Xxxxxxxxxxx Xxxx, c/o, Fried Xxxxx Xxxxxx Xxxxxxx &
Xxxxxxxx (London) LLP, 00 Xxxx Xxxx, Xxxxxx XX0X 0XX)
In the case of the Seller to:
Corus Group plc
00 Xxxxxxxx
Xxxxxx
XX0X 0XX
Xxxxxx Xxxxxxx
Fax: x00 000 000 0000
Attention: Company Secretary
(with a copy to Xxxx Xxxxxx, Xxxxxxxxx and May, Xxx Xxxxxxx Xxx,
Xxxxxx XX0X 0XX)
and shall be deemed to have been duly given or made as follows:
(a) if personally delivered, upon delivery at the address of the
relevant party;
(b) if sent by first class post, two Business Days after the date
of posting;
(c) if sent by air mail, five Business Days after the date of
posting; and
(d) if sent by fax, when despatched;
provided that if, in accordance with the above provisions, any such
notice, demand or other communication would otherwise be deemed to
be given or made outside 9.00 a.m. - 5.00 p.m. on a Business Day
such notice, demand or other communication shall be deemed to be
given or made at 9.00 a.m. on the next Business Day.
31.2 A party may notify the other party to this agreement of a change to
its name, relevant addressee, address or fax number for the purposes
of clause 31.1 above provided that such notification shall only be
effective:
(a) on the date specified in the notification as the date on which
the change is to take place; or
(b) if no date is specified or the date specified is less than five
Business Days after the date on which notice is given, the date
falling five Business Days after notice of any such change has
been given.
31.3 The parties agree that the provisions of this clause shall not apply
in relation to the service of any writ, summons or judgement or
other document relating to or in connection with any Proceedings.
32. COUNTERPARTS
This agreement may be executed in any number of counterparts which
together shall constitute one agreement. Any party may enter into
this agreement by executing a counterpart and this agreement shall
not take effect until it has been executed by all parties.
33. GOVERNING LAW AND JURISDICTION
33.1 This agreement (and any dispute, controversy, proceedings or claim
of whatever nature arising out of or in any way relating to this
agreement or its formation) shall be governed by and construed in
accordance with English law.
33.2 Each of the parties to this agreement irrevocably agrees that the
courts of England shall have exclusive jurisdiction to hear and
decide any suit, action or proceedings, and/or to settle any
disputes, which may arise out of or in connection with this
agreement or its formation (respectively, "PROCEEDINGS" and
"DISPUTES") and, for these purposes, each party irrevocably submits
to the jurisdiction of the courts of England.
33.3 Each party irrevocably waives any objection which it might at any
time have to the courts of England being nominated as the forum to
hear and decide any Proceedings and to settle any Disputes and
agrees not to claim that the courts of England are not a convenient
or appropriate forum for any such Proceedings or Disputes and
further irrevocably agrees that a judgment in any Proceedings or
Disputes brought in any court referred to in this clause 33 shall be
conclusive and binding upon the parties and may be enforced in the
courts of any other jurisdiction.
34. AGENT FOR SERVICE
34.1 The Buyer irrevocably agrees that any notice or document may be
sufficiently and effectively served on it in connection with
proceedings in England and Wales by service on Law Debenture
Corporate Services Limited, if no replacement agent has been
appointed and notified to the Seller pursuant to clause 34.3 below,
or on the replacement agent if one has been so appointed and
notified to the Seller.
34.2 Any notice or document served pursuant to this clause shall be
marked for the attention of:
(a) Law Debenture Corporate Services Limited, Xxxxx Xxxxx, 000 Xxxx
Xxxxxx, Xxxxxx XX0X 0XX or such other address within England or
Wales as may be notified to the Seller by the Buyer; or
(b) such other person as is appointed as agent for service pursuant
to clause 34.3 below at the address notified pursuant to clause
34.3 below.
34.3 If the agent referred to in clause 34.1 above (or any replacement
agent appointed pursuant to this sub-clause) at any time ceases for
any reason to act as such, the Buyer shall appoint a replacement
agent to accept service having an address for service in England or
Wales and shall notify the Seller of the name and address of the
replacement agent; failing such appointment and notification, the
Seller shall be entitled by notice to the Buyer to appoint such a
replacement agent to act on the Buyer's behalf PROVIDED THAT in
cases where service is effected upon a replacement agent appointed
by the Seller in accordance with this sub-clause a copy of the
relevant notice or document shall at the same time be forwarded to
the last known business address of the Buyer.
35. THIRD PARTY RIGHTS
35.1 Any person (other than the parties to this agreement) who is given
any rights or benefits under clauses 6.1 (Obligations following
Completion), 10.2 (Seller Warranties) and 27 (Entire Agreement) (a
"THIRD PARTY") shall be entitled to enforce those rights or benefits
against the parties in accordance with the Contracts (Rights of
Third Parties) Xxx 0000.
35.2 Save as provided in clause 35.1 above the operation of the Contracts
(Rights of Third Parties Act) 1999 is hereby excluded.
35.3 The parties may, amend, vary or terminate this agreement in such a
way as may affect any rights or benefits of any Third Party which
are directly enforceable against the parties under the Contracts
(Rights of Third Parties) Xxx 0000 without the consent of such Third
Party.
35.4 Any Third Party entitled pursuant to the Contracts (Rights of Third
Parties) Xxx 0000 to enforce any rights or benefits conferred on it
by this agreement may not veto any amendment, variation or
termination of this agreement which is proposed by the parties and
which may affect the rights or benefits of the Third Party.
IN WITNESS whereof this agreement has been executed on the date first above
written.
Signed by /s/ Xxxxxxxx Xxxxx )
for and on behalf of CORUS GROUP PLC )
in the presence of: /s/ Xxxxxxx Xxxxx )
Signed by /s/ Xxxx Xxxxx )
for and on behalf of ALERIS INTERNATIONAL INC. )
in the presence of: /s/ Xxxxxxxxxxx Xxxx )
