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EXHIBIT NO. 99.2: AMENDING AGREEMENT DATED JUNE 1, 2000
AMENDING AGREEMENT DATED JUNE 1, 2000
Between: Alcan Aluminium Limited ("Canada")
and: Alusuisse Lonza Group AG ("Switzerland")
WHEREAS:
On September 15, 1999 Canada, Switzerland and Pechiney entered into a
Combination Agreement;
On April 12, 2000 an agreement was entered into among Canada, Switzerland
and Pechiney establishing the terms by which the Combination Agreement was
terminated as regards Pechiney such that the Combination Agreement remains in
force as between Canada and Switzerland only;
Canada and Switzerland have agreed that it is in their mutual best
interests to amend the terms of the Combination Agreement in order that the
Swiss Exchange Offer may proceed as quickly as possible with the maximum
chances of success;
The respective Boards of Directors of each of Canada and Switzerland have
unanimously approved the execution and delivery of this Amending Agreement;
BZ Group Holding Limited, BZ Bank Limited and Stillhalter Vision AG have
in accordance with the terms of a Tender Agreement entered into simultaneously
with the execution and delivery of this Amending Agreement irrevocably agreed
to accept or caused to be accepted the Swiss Exchange Offer in respect of
2,300,000 Swiss Shares and to deposit same or cause same to be deposited
thereunder.
NOW THEREFORE,
In consideration of the mutual representations, warranties, covenants and
agreements contained herein, the Parties hereto, intending to be legally bound,
hereby agree as follows:
1. This Amending Agreement shall be interpreted and applied according to
the defined terms, rules of interpretation, rules of enforcement and
similar general provisions applicable to the Combination Agreement as
if it were part thereof.
2. Schedule 1 to the Combination Agreement under the heading "Details of
the Swiss Exchange Offer" shall be amended to read as set forth in
Appendix 1 to this Agreement.
3. Each of the parties confirms that it has no knowledge as to the
occurrence of any event or the current existence of any situation
which would cause the conditions set forth in Part A of Schedule 2 to
the Combination Agreement not to be satisfied if the Swiss Exchange
Offer were to be made on the date hereof. Notwithstanding this, the
condition concerning the completion of the Chemicals Division
Demerger which
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was formerly stipulated to be a condition of the Swiss
Exchange Offer shall be a condition to be satisfied or waived before
the making of the Swiss Exchange Offer and shall be added to Part A
of Schedule 2.
4. The text of Schedule 3 to the Combination Agreement shall be replaced
by text set forth in Appendix 2 to this Agreement.
5. References to the SBF and London Stock Exchange are deleted from
Articles 4.1.6 and 4.4.1 of the Combination Agreement
6. (a) Notwithstanding anything contained in the Combination Agreement,
the parties agree that Switzerland shall make both a capital
repayment and a dividend payment (together the "Special Swiss
Shareholder Payments") payable to its shareholders of record on the
close of business on the second business day prior to the exchange of
shares under the Swiss Exchange Offer. The Special Swiss Shareholder
Payments shall together equal CHF 225 per Swiss Share but not exceed
CHF 1,528,100,000 in the aggregate in respect of all Swiss Shares.
The payment of the dividend payment portion of the Special Swiss
Shareholder Payments shall be subject to the condition that a number
of the Swiss Shares equal to the "Swiss Minimum Condition" be
deposited for acceptance under the Swiss Exchange Offer and not
withdrawn. If the Swiss Minimum Condition is not met or the Swiss
Exchange Offer is not completed for any other reason, the capital
repayment portion of the Special Swiss Shareholder Payments will be
paid on October 24, 2000. The Swiss Exchange Offer shall provide that
if Canada acquires any Swiss Shares pursuant thereto after the
conditions for the payment of the Special Swiss Shareholder Payments
are met, Canada shall be obliged to guarantee to the relevant
shareholder of Switzerland who tendered such Swiss Shares that the
funds necessary to make their Special Swiss Shareholder Payments will
be available to Switzerland. Switzerland shall take all reasonable
actions necessary to complete the Special Swiss Shareholder Payments
promptly and in reasonable consultation with Canada; and (b)
notwithstanding anything contained in the Combination Agreement, the
parties agree that none of the restrictions in Article 4.1.5 (e) and
(f) shall bind Canada provided that its Chief Executive Officer shall
have consulted reasonably with the Chief Executive Officer of
Switzerland prior to Canada taking any such action.
7. The June 30, 2000 date referred to in clauses 8.2.1 (c) and 8.4.1 (c)
of the Combination Agreement shall be extended to September 30, 2000.
8. No failure by a party in respect of the provisions of the Combination
Agreement requiring it to make or co-operate in the making of the
Swiss Exchange Offer may constitute a breach of same unless and until
a period of 15 days has elapsed following written notice from the
other party requiring it to make or co-operate in the making of the
Swiss Exchange Offer.
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IN WITNESS HEREOF, the undersigned have each executed and delivered this
agreement as of the date first above-mentioned.
Alcan Aluminium Limited
per: /S/ XXXXXXX XXXXXX
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Alusuisse Lonza Group AG
per: /S/ XXXXXX XXXXXXXXXX
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per: /S/ X. XXXXXXXXX
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APPENDIX 1
SCHEDULE 1
DETAILS OF THE SWISS EXCHANGE OFFER
Offeror: Canada.
Shares to be offered for: all of the Swiss shares with all rights
attached thereto except rights to the Special
Swiss Shareholder Payment.
Jurisdictions in which Switzerland and such further jurisdictions as
the Offer will be made: are agreed to by Canada and Switzerland (such
agreement not to be unreasonably withheld or
delayed). The Offer will not be made into the
United States except on a basis exempt from
registration with U.S. Securities and
Exchange Commission.
Offer Consideration: Canada Common Shares at the rate of 17.1
Canada Common Shares for each Swiss Share
(the CANADA SWISS OFFER SHARES).
Fractions: Fractions of Canada Common Shares will not be
issued. Instead Canada will make arrangements
on reasonable terms for Canada Common Shares
representing fractional entitlements to be
aggregated and sold on the market and the net
proceeds of sale (converted at the spot rate
of exchange into Swiss francs) to be
distributed amongst the persons entitled
thereto or such other procedure agreed to by
Switzerland and Canada to equitably
compensate holders of Swiss Shares for
fractional share interests in Canada Common
Shares.
Offer Conditions: The Swiss Exchange Offer shall become
unconditional if at the end of the Swiss
Exchange Offer Acceptance Period Canada has
received valid acceptances (which have not
been withdrawn) in respect of more than 67
per cent of the total number of Swiss Shares
calculated on a fully diluted basis as of the
end of such Swiss Exchange Offer Acceptance
Period (the SWISS MINIMUM CONDITION).
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Swiss Exchange Offer Excluding the initial period of 10 trading
Acceptance Period: days when shares cannot be tendered and in
relation to which a waiver will be sought:
(i) the Swiss Exchange Offer will be open
for acceptance for 20 trading days with
Canada having the right to extend the
Swiss Exchange Offer on one or more
occasions for a total duration of 40
trading days and being obliged to so
extend upon the request of Switzerland;
and
(ii) there will be no further extension of
the period during which the Swiss
Exchange Offer is open for acceptance
unless it is required by the Applicable
Takeover Authority, including to permit
satisfaction of conditions.
(i) and (ii) together constituting THE SWISS
EXCHANGE OFFER ACCEPTANCE PERIOD for the
purpose thereof.
Swiss Exchange Offer the Swiss Exchange Offer Acceptance Period
Period: plus:
(i) whatever time is required thereafter to
establish that all the conditions to
the Swiss Exchange Offer have failed;
and
(ii) if all the conditions to the Swiss
Exchange Offer are satisfied so that it
becomes unconditional, a further period
of 10 trading days to permit additional
acceptances only.
Announcement of As soon as practicable after the end of the
acceptance level: Swiss Exchange Offer Acceptance Period in
accordance with Swiss regulations.
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Amendment or waiver: (a) Without the prior written consent of
Switzerland, Canada shall not decrease
the Canada Swiss Offer Shares or make
any other change in the terms or
conditions of the Swiss Exchange Offers
adverse to the holders of Swiss Shares,
except to implement the provisions set
forth below under the caption,
"Adjustments to Prevent Dilution".
(b) Without the prior written consent of
Switzerland, Canada shall not decrease
the number of Swiss Shares being sought
in the Swiss Exchange Offer, change the
form of consideration proposed to be
paid in the Swiss Exchange Offer or
change the Swiss Minimum Condition.
(c) Without the prior written consent of
Switzerland any waiver or purported
waiver by Canada of the Swiss Minimum
Condition shall not be deemed effective.
Adjustments to Prevent In the event that (A) Switzerland changes the
Dilution: number of (i) Swiss Shares or (ii) securities
convertible or exchangeable into or
exercisable for Swiss Shares, or (B) Canada
changes the number of (i) Canada Common Shares
or (ii) securities convertible or exchangeable
into or exercisable for Canada Common Shares,
issued and outstanding prior to the time at
which the exchange of Canada Common Shares for
Swiss Shares occurs as a result of a
reclassification, stock split (including a
reverse split), stock dividend or
distribution, recapitalization, merger,
subdivision, issuer tender or exchange offer,
or other similar transaction, the offer
consideration constituted by the Canada Swiss
Offer Shares shall be equitably adjusted; but
for the avoidance of doubt no such adjustment
shall be required as a result of the Chemicals
Division Demerger.
Governing law of Swiss Swiss law for governance of the conduct of
the Exchange ffer: Swiss Exchange Offer in Switzerland.
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APPENDIX 2
SCHEDULE 3
BOARD OF DIRECTORS
Number of Directors: Eleven including seven nominees of Canada and
four nominees of Switzerland.
Composition: The members of the Board of Directors of
Canada, after completion of the Swiss
Exchange Offer shall include: (i) Xxxxxxx
Xxxxxx, Xxxxxx Xxxxx, Xxxx Xxxxx and Guy
Saint-Pierre as the four original nominees of
Canada; (ii) Xxxxxx Xxxxx, Xxxxxx Xxxxxx,
Xxxxx X. Xxxxx and Xxxxxx Xxxxxxxxxx as the
four original nominees of Switzerland; and
(iii) three additional nominees to be
selected by Canada.
Residency covenant: Algroup has agreed to take the requisite
steps such that one of its nominees will
qualify as soon as practicable as a "resident
Canadian" to the extent necessary to
constitute the Board of Directors for
purposes of the CANADA BUSINESS CORPORATIONS
ACT. In the event that none of them is able
to do so in time for the completion of the
Swiss Exchange Offer, Switzerland shall
select a replacement nominee who shall be a
"resident Canadian".
NON-EXECUTIVE CHAIR: The Chairman will be Xxxx Xxxxx.
COMMITTEES: The Board of Directors will have such
committees as it determines, provided that it
will at all times have Audit, Corporate
Governance and Human Resources and
Compensation Committees. The initial
composition of these committees shall be as
follows: (i) Audit: Saint-Pierre, Marchionne
and a new nominee with the Chairman of the
Committee remaining to be named; (ii)
Corporate Governance: Xxxxx, Xxxxx and a new
nominee with Xxxxx the Chairman of the
Committee; (iii) Human Resources and
Compensation: Engen, Marchionne and a new
nominee with Marchionne the Chairman of the
Committee.
CEO: The CEO will be Xxxxxxx Xxxxxx.
PRINCIPAL OFFICES: The head office will be located in Montreal,
Canada.
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