Exhibit (d)(2)
STOCKHOLDERS AGREEMENT dated as of March 31,
2000 (this "AGREEMENT"), among Rexam PLC, a public
limited company registered in England number 191285
("REXAM"), and the party listed on Schedule A
attached hereto (the "STOCKHOLDER").
WHEREAS Rexam, Rexam Acquisition Subsidiary Inc., a
Delaware corporation and a wholly owned direct or indirect subsidiary of
Rexam ("SUB"), and American National Can Group, Inc., a Delaware corporation
(the "COMPANY"), propose to enter into an Agreement and Plan of Merger dated
as of the date hereof (as the same may be amended or supplemented, the
"MERGER AGREEMENT"; terms used but not defined herein shall have the meanings
set forth in the Merger Agreement) providing for (i) the making of a cash
tender offer for Company Common Stock (the "Offer") as provided therein and
(ii) the merger of Sub with and into the Company upon the terms and subject
to the conditions set forth in the Merger Agreement;
WHEREAS the Stockholder owns (of record or beneficially)
the number of shares of capital stock of the Company set forth opposite the
Stockholder's name on Schedule A hereto (such shares of capital stock of the
Company being referred to herein as the "ORIGINAL SHARES"; the Original
Shares, together with any other shares of capital stock of the Company or
other voting securities of the Company acquired (of record or beneficially)
by the Stockholder after the date hereof and during the term of this
Agreement (including through the exercise of any warrants, stock options or
similar instruments), being collectively referred to herein as the "SUBJECT
SHARES"); and
WHEREAS as a condition to its willingness to enter into the
Merger Agreement, Rexam has required that the Stockholder enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements set forth herein and in
the Merger Agreement, the parties hereto agree as follows:
SECTION 1. REPRESENTATIONS AND WARRANTIES OF THE
STOCKHOLDER. The Stockholder hereby represents and warrants
to Rexam as follows:
(a) ORGANIZATION; AUTHORITY; EXECUTION AND DELIVERY;
ENFORCEABILITY. The Stockholder (i) is duly organized and validly existing
under the laws of its jurisdiction of organization and (ii) has all requisite
corporate or other power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated by this Agreement. The
execution and delivery of this Agreement by the Stockholder and the
consummation by the Stockholder of the transactions contemplated by this
Agreement have been duly authorized by all necessary corporate or other
action on the part of the Stockholder and no other corporate or other
proceedings on the part of the Stockholder are necessary to authorize this
Agreement or to consummate the transactions contemplated by this Agreement.
This Agreement has been duly executed and delivered by the Stockholder and
constitutes a valid and binding obligation of the Stockholder, enforceable
against the Stockholder in accordance with its terms. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated by this Agreement and compliance with the provisions of this
Agreement do not and will not conflict with, or result in any violation or
breach of, or default (with or without notice or lapse of time, or both)
under, or give rise to a right of, or result in, termination, cancelation or
acceleration of any obligation or to loss of a material benefit under, or
result in the creation of any Lien in or upon any of the properties or assets
of the Stockholder under, or give rise to any increased, additional,
accelerated or guaranteed rights or entitlements under, any provision of (i)
any certificate of incorporation or by-laws, partnership agreement or limited
liability company agreement (or similar organizational documents) of the
Stockholder, (ii) any Contract to which the Stockholder is a party or any of
the properties or assets of the Stockholder is subject or (iii) subject to
the governmental filings and other matters referred to in the following
sentence, any (A) statute, law, ordinance, rule or regulation or (B)
judgment, order or decree, in each case, applicable to the Stockholder or its
properties or assets, other than, in the case of clauses (ii) and (iii), any
such conflicts, violations, breaches, defaults, rights, losses, Liens or
entitlements, that individually or in the aggregate would not impair in any
material respect the ability of the
Stockholder to perform its obligations under this Agreement or prevent or
materially impede or delay the consummation of any of the transactions
contemplated by this Agreement. No consent, approval, order or authorization
of, or registration, declaration or filing with, any Governmental Entity is
required by or with respect to the Stockholder in connection with the
execution and delivery of this Agreement by the Stockholder or the
consummation by the Stockholder of the transactions contemplated by this
Agreement or the compliance by the Stockholder with the provisions of this
Agreement, except for (1) filings under the HSR Act and any other applicable
competition, merger control, antitrust or similar law or regulation, (2)
filings with the SEC of such reports under the Exchange Act as may be
required in connection with this Agreement and (3) such other consents,
approvals, orders, authorizations, registrations, declarations and filings
the failure of which to be obtained or made individually or in the aggregate
would not impair in any material respect the ability of the Stockholder to
perform its obligations under this Agreement or prevent or materially impede
or delay the consummation of any of the transactions contemplated by this
Agreement.
(b) THE SUBJECT SHARES. The Stockholder is the record and
beneficial owner of, and has good and marketable title to, the Subject
Shares, free and clear of any Liens. As of the date of this Agreement, the
Stockholder does not own of record any shares of capital stock of the Company
other than the Original Shares, nor does the Stockholder beneficially own any
shares of capital stock of the Company other than the Original Shares, and
the Stockholder does not own (of record or beneficially) any options,
warrants, rights or other similar instruments to acquire any capital stock or
other voting securities of the Company. The Stockholder has the sole right to
vote and Transfer (as defined in Section 3(c)) the Subject Shares, and none
of the Subject Shares is subject to any voting trust or other agreement,
arrangement or restriction with respect to the voting or the Transfer of such
Subject Shares, except as set forth in Section 3 of this Agreement.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF
REXAM. Rexam hereby represents and warrants to the Stockholder as follows:
Rexam (i) is duly incorporated, validly existing and in good standing under
the laws of its jurisdiction of incorporation and (ii) has all requisite
corporate power and authority to execute and deliver this Agreement and,
subject to receipt of the Rexam Shareholder Approval, to consummate the
transactions contemplated by this Agreement. The execution and delivery of
this Agreement by Rexam and the consummation of the transactions contemplated
by this Agreement have been duly authorized by all necessary corporate action
on the part of Rexam and no other corporate proceedings on the part of Rexam
are necessary to authorize this Agreement or to consummate the transactions
contemplated by this Agreement. This Agreement has been duly executed and
delivered by Rexam and, assuming due execution by the Stockholder,
constitutes a valid and binding obligation of Rexam, enforceable against
Rexam in accordance with its terms. The execution and delivery of this
Agreement and the consummation of the transactions contemplated by this
Agreement do not and will not conflict with, or result in any violation or
breach of, or default (with or without notice or lapse of time, or both)
under, or give rise to a right of, or result in, termination, cancelation or
acceleration of any obligation or to loss of a material benefit under, or
result in the creation of any Lien upon any of the properties or assets of
Rexam under, or give rise to any increased, additional, accelerated or
guaranteed rights or entitlements under, any provision of (i) the articles of
organization or by-laws or similar organizational documents of Rexam, (ii)
any Contract applicable to Rexam or its properties or assets or (iii) subject
to the governmental filings and other matters referred to in the following
sentence, any (A) statute, law, ordinance, rule or regulation or (B)
judgment, order or decree, in each case, applicable to Rexam or its
properties or assets, other than, in the case of clauses (ii) and (iii), any
such conflicts, violations, breaches, defaults, rights, losses, Liens or
entitlements that individually or in the aggregate would not impair in any
material respect the ability of Rexam to perform its obligations under this
Agreement or prevent or materially delay the consummation of any of the
transactions contemplated by this Agreement. No consent, approval, order or
authorization of, or registration, declaration or filing with, any
Governmental Entity is required by or with respect to Rexam in connection
with the execution and delivery of this Agreement by Rexam or the
consummation by Rexam of the transactions contemplated by this Agreement,
except for (1) filings under the HSR Act and any other applicable
competition, merger control, antitrust or similar law or regulation, (2)
filings with the SEC of such reports under the Exchange Act as may be
required in connection with this Agreement and the transactions contemplated
by this Agreement, (3) Rexam Shareholder Approval and (4) such other
consents, approvals, orders, authorizations, registrations, declarations and
filings the failure of which to be obtained or made individually or in the
aggregate would not impair in any material respect the ability of Rexam to
perform its obligations under this Agreement or prevent or materially delay
the consummation of any of the transactions contemplated by this Agreement.
Any Original Shares purchased by Rexam pursuant to this Agreement will be
acquired for investment only and not with a view to any public distribution
thereof, and Rexam shall not offer to sell or otherwise dispose of any
Original Shares so acquired by it in violation of any of the registration
requirements of the Securities Act.
SECTION 3. COVENANTS OF THE STOCKHOLDER. From and after
the date hereof and until the termination of this Agreement pursuant to
Section 7, the Stockholder covenants and agrees as follows:
(a) At any meeting of the stockholders of the Company called
to vote upon the Merger Agreement, the Merger or any of the other transactions
contemplated by the Merger Agreement, or at any adjournment or postponement
thereof, or in any other circumstances upon which a vote, consent, adoption or
other approval (including by written consent solicitation) with respect to the
Merger Agreement, the Merger or any of the other transactions contemplated by
the Merger Agreement is sought, the Stockholder shall vote (or cause to be
voted) all of the Subject Shares (owned of record or beneficially) in favor of,
and shall consent in writing to (or cause to be consented in writing to), the
adoption of the Merger Agreement and the approval of the terms thereof and of
the Merger and each of the other
transactions contemplated by the Merger Agreement.
(b) At any meeting of the stockholders of the Company or at
any adjournment or postponement thereof or in any other circumstances upon
which a vote, consent, adoption or other approval (including by written
consent solicitation) is sought, the Stockholder shall vote (or cause to be
voted) all the Subject Shares (owned of record or beneficially) against, and
shall not consent in writing to (and shall cause not to be consented in
writing to), any of the following (or any agreement to enter into, effect,
facilitate or support any of the following): (i) any Takeover Proposal or
transaction or occurrence that if proposed and offered to the Company or its
stockholders (or any of them) would constitute a Takeover Proposal
(collectively, "ALTERNATIVE TRANSACTIONS") or (ii) any amendment of the
Company's Certificate of Incorporation or By-laws or other proposal, action
or transaction involving the Company or any of its subsidiaries or any of its
stockholders, which amendment or other proposal, action or transaction could
reasonably be expected to prevent or materially impede or delay the
consummation of the Offer, the Merger or the other transactions contemplated
by the Merger Agreement or the consummation of the transactions contemplated
by this Agreement, or change in any manner the voting rights of the Company
Common Stock (collectively, "FRUSTRATING TRANSACTIONS").
(c) (1) The Stockholder shall tender all the Subject Shares
pursuant to the Offer. Such tender shall be made promptly, and in any event
no later than the fifth business day following commencement of the Offer. The
Stockholder shall not withdraw any Subject Shares tendered pursuant to the
Offer prior to the termination of the Merger Agreement. The obligation of the
Stockholder to tender and not withdraw the Subject Shares is conditioned only
upon lawful commencement of the Offer and otherwise is unconditioned. The
Stockholder acknowledges and agrees that Rexam's obligation to accept for
payment the Subject Shares in the Offer, including any Subject Shares
tendered by the Stockholder, is subject to the terms and conditions of the
Offer.
(2) Other than pursuant to this Agreement, the Stockholder
shall not (i) sell, transfer, pledge, assign or
otherwise dispose of (including by gift) (collectively, "TRANSFER") or enter
into any Contract, option or other arrangement (including any profit sharing
arrangement) with respect to the Transfer of, or the creation or offer of any
derivative security in respect of, any Subject Shares, to or with any person
other than pursuant to the Offer and the Merger or (ii) enter into any voting
arrangement, whether by proxy, voting agreement or otherwise, with respect to
any Subject Shares, and shall not commit or agree to take any of the
foregoing actions. The Stockholder shall not, nor shall the Stockholder
permit any entity under the Stockholder's control to, deposit any Subject
Shares in a voting trust.
(d) The Stockholder shall not, nor shall the Stockholder
permit any of its subsidiaries to, nor shall it authorize or permit any
director, officer or employee of the Stockholder or any of its subsidiaries
or any investment banker, attorney, accountant or other advisor or
representative of the Stockholder or any of its subsidiaries to, directly or
indirectly, (i) solicit, initiate or encourage, or take any other action to
facilitate, any Takeover Proposal or Frustrating Transaction, (ii) enter into
any agreement with respect to any Takeover Proposal or Frustrating
Transaction or (iii) enter into, continue or otherwise participate in any
discussions or negotiations regarding, or furnish to any person any
information with respect to, or otherwise cooperate in any way with, or
assist or participate in any effort or attempt by any person with respect to,
any Takeover Proposal or Frustrating Transaction.
(e)(i) The Stockholder shall use its commercially
reasonable efforts to take, or cause to be taken, all actions, and to do, or
cause to be done, and to assist and cooperate with the other parties in
doing, all things necessary, proper or advisable to consummate and make
effective, in the most expeditious manner practicable, the transactions
contemplated by this Agreement and the Merger Agreement. The Stockholder
shall not commit or agree to take any action inconsistent with the
transactions contemplated by this Agreement or the transactions contemplated
by the Merger Agreement.
(ii) The Stockholder shall not, nor shall the Stockholder
permit any of its subsidiaries to, nor shall it authorize or permit any
director, officer or employee of the Stockholder or any of its subsidiaries
or any investment banker, attorney, accountant or other advisor or
representative of the Stockholder or any of its subsidiaries to, directly or
indirectly, issue any press release or make any other public statement with
respect to the Merger Agreement, this Agreement, the Offer, the Merger or any
of the other transactions contemplated by the Merger Agreement or any of the
transactions contemplated by this Agreement without prior consultation with
Rexam, except as may be required by applicable law.
(f) The Stockholder hereby waives any appraisal rights with
respect to, or rights to dissent from, the Merger that the Stockholder may
have.
(g) (i) (A) If the Merger Agreement is terminated under
circumstances in which Rexam is or may become entitled to receive the
Termination Fee and an Alternative Transaction is consummated within six
months after the termination of this Agreement, then the Stockholder shall
pay to Rexam, upon the transfer of any Original Shares in connection with
that Alternative Transaction, an amount equal to all of the cash profit
(determined in accordance with clause (B) below) associated with the
consummation of such Alternative Transaction that is consummated within six
months after the termination of this Agreement.
(B) The cash profit associated with the consummation of such
Alternative Transaction shall equal (x) the aggregate cash
consideration paid in respect of the number of Original Shares sold by
the Stockholder as a result of the consummation of such Alternative
Transaction, less (y) the product obtained by multiplying $18.00 by the
number of Original Shares sold by the Stockholder.
(ii) If the Effective Time occurs and Rexam for any reason has
increased the value of the cash consideration payable in the Offer and
the Merger (or, if not the Offer and the Merger, such other transaction
that is consummated with Rexam), the Stockholder shall
pay to Rexam an amount equal to: (x) the aggregate cash consideration
payable in respect of the number of Original Shares sold by the
Stockholder, less (y) the product obtained by multiplying $18.00 by
the number of Original Shares sold by the Stockholder.
(iii) Any payment to be made by the Stockholder pursuant to
this Section 3(g) shall be made in cash within three business days
following receipt by the Stockholder of such consideration by wire
transfer of same day funds to an account designated by Rexam.
(h) Rexam agrees to cause the Company to enter into a
termination agreement, in form and substance reasonably acceptable to the
Stockholder, terminating the Beer Bottle Technology Option Agreement between
the Company and Pechiney dated July 28, 1999, as soon as practicable after
the Specified Date, but in no event later than five business days thereafter.
As soon as practicable after the Specified Date, but in no event later than
five business days thereafter, Rexam agrees to cause the Company to enter
into an amendment, in form and substance reasonably acceptable to the
Stockholder, amending the term of the Shared Services Agreement between the
Company and Pechiney Packaging, Inc., dated July 28, 1999, to expire twelve
months following the Specified Date. The Stockholder hereby on behalf of
itself and its subsidiaries waives any rights to receive a termination fee in
connection with the termination of the Shared Services Agreement.
SECTION 4. FURTHER ASSURANCES. The Stockholder shall from
time to time execute and deliver, or cause to be executed and delivered, such
additional or further consents, documents and other instruments as Rexam may
request for the purpose of effectuating the matters covered by this Agreement.
SECTION 5. CERTAIN EVENTS. The Stockholder agrees that this
Agreement and the obligations hereunder shall attach to the Subject Shares
and shall be binding upon any person or entity to which legal or beneficial
ownership of any Subject Shares shall pass, whether by operation of
law or otherwise, including the Stockholder's heirs, guardians,
administrators or successors, and the Stockholder further agrees to take all
actions necessary to effectuate the foregoing. The Stockholder agrees that
each certificate representing the Subject Shares shall be inscribed with a
legend to such effect. In the event of any stock split, stock dividend,
reclassification, merger, reorganization, recapitalization or other change in
the capital structure of the Company affecting the capital stock of the
Company, the number of Original Shares shall be adjusted appropriately. In
addition, in the event of any other acquisition of additional shares of
capital stock of the Company or other voting securities of the Company by the
Stockholder (including through the exercise of any warrants, stock options or
similar instruments), the number of Subject Shares listed on Schedule A
hereto beside the name of the Stockholder shall be adjusted appropriately.
This Agreement and the representations, warranties, covenants, agreements and
obligations hereunder shall attach to any additional shares of capital stock
of the Company or other voting securities of the Company issued to or
acquired by the Stockholder directly or indirectly (including through the
exercise of any warrants, stock options or similar instruments).
SECTION 6. ASSIGNMENT. Neither this Agreement nor any of
the rights, interests or obligations under this Agreement shall be assigned,
in whole or in part, by operation of law or otherwise, by any of the parties
hereto without the prior written consent of the other parties hereto, except
that Rexam may assign, in its sole discretion, (x) any of or all its rights,
interests and obligations under this Agreement to any direct or indirect
wholly owned subsidiary of Rexam and (y) any of or all its rights, interests
and obligations under Section 3(g), but no such assignment shall relieve
Rexam of any of its obligations under this Agreement. Any purported
assignment in violation of this Section 6 shall be void. Subject to the
preceding sentences of this Section 6, this Agreement shall be binding upon,
inure to the benefit of and be enforceable by, the parties hereto and their
respective successors and assigns.
SECTION 7. TERMINATION. Except as set forth below, this
Agreement shall terminate upon the earliest of
(i) the Effective Time, (ii) the later of six months following the
termination of the Merger Agreement or December 31, 2000 if the Merger
Agreement is terminated pursuant to Section 7.01(b)(i), 7.01(c) or 7.01(f) of
the Merger Agreement in circumstances in which Rexam is or may become
entitled to receive the Termination Fee and (iii) the termination of the
Merger Agreement if terminated for any other reason; PROVIDED that Sections
3(g), 4, 5, 6, 9, 10, 11 and this Section 7 shall not terminate for so long
as the Stockholder is or may become required to make payment to Rexam
pursuant to Section 3(g), in which event such provisions shall not terminate
until the later of (x) the date all such payments have been made and (y) the
expiration of the period under Section 3(g) during which such obligation
could arise; PROVIDED FURTHER that Section 8 shall not terminate and shall
survive indefinitely if this Agreement is terminated pursuant to clause (i)
above or is otherwise terminated at any time on or after the Specified Date;
and PROVIDED FURTHER that Section 3(h) shall not terminate and shall survive
indefinitely if this Agreement is terminated pursuant to clause (i) above. In
the event of the termination of this Agreement pursuant to this Section 7,
except as set forth herein, this Agreement shall forthwith become null and
void, there shall be no liability on the part of any of the parties, and
except as set forth in this Section 7 all rights and obligations of each
party hereto shall cease; PROVIDED, HOWEVER, that no such termination of this
Agreement shall relieve any party hereto from any liability for any breach of
any provision of this Agreement prior to termination.
SECTION 8. RELEASE OF CERTAIN INDEMNIFICATION OBLIGATIONS
OF THE STOCKHOLDER. As soon as practicable after the Specified Date, but in
no event later than five business days thereafter, Rexam hereby agrees to (a)
cause the Company to enter into a termination and release agreement, in form
and substance reasonably acceptable to the Stockholder, terminating the
Indemnification Agreement dated as of July 28, 1999, between the Company and
the Stockholder and releasing the Stockholder from any and all liability
pursuant thereto, and (b) cause American National Can Company, a subsidiary
of the Company, to enter into an
amendment, in form and substance reasonably acceptable to the Stockholder, to
the Indemnification Agreement dated as of July 28, 1999, between American
National Can Company and the Stockholder deleting clause (ii) of Section
2.01(a) of that Indemnification Agreement and releasing the Stockholder from
any and all liability pursuant to such clause (ii).
SECTION 9. GENERAL PROVISIONS. (a) AMENDMENTS. This
Agreement may not be amended except by an instrument in writing signed by all
of the parties hereto.
(b) NOTICES. All notices, requests, clauses, demands and
other communications under this Agreement shall be in writing and shall be
deemed given if delivered personally, telecopied (with confirmation) or sent
by overnight or same-day courier (providing proof of delivery) to Rexam in
accordance with Section 8.02 of the Merger Agreement and to the Stockholder
at its address set forth on Schedule A hereto with a copy to Shearman &
Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, facsimile: 212-
848-7179, attention: Xxxxx X. Xxxxxxxx, Esq.(or at such other address as
shall be specified by like notice).
(c) INTERPRETATION. When a reference is made in this
Agreement to a Section or a Schedule, such reference shall be to a Section
of, or a Schedule to, this Agreement unless otherwise indicated. The headings
contained in this Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this Agreement. Whenever
the words "include", "includes" or "including" are used in this Agreement,
they shall be deemed to be followed by the words "without limitation". The
words "hereof", "herein" and "hereunder" and words of similar import when
used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement. The term "or" is not exclusive.
The definitions contained in this Agreement are applicable to the singular as
well as the plural forms of such terms. Any agreement or instrument defined
or referred to herein or in any agreement or instrument that is referred to
herein means such agreement or instrument as from time to time amended,
modified or supplemented. References to a person are also to its permitted
successors and assigns.
(d) COUNTERPARTS; EFFECTIVENESS. This Agreement
may be executed in one or more counterparts, all of which shall be considered
one and the same agreement and shall become effective when one or more
counterparts have been signed by each of the parties hereto and delivered to
the other party. The effectiveness of this Agreement shall be conditioned
upon the execution and delivery of the Merger Agreement by each of the
parties thereto.
(e) ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This
Agreement (including the documents and instruments referred to herein) (i)
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties hereto with respect
to the subject matter of this Agreement and (ii) is not intended to confer
upon any person other than the parties hereto any rights or remedies.
(f) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAWS.
(g) SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of
law or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect. Upon such determination
that any term or other provision is invalid, illegal or incapable of being
enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible to the fullest extent permitted by applicable law in an acceptable
manner and to the end that the transactions contemplated hereby are fulfilled
to the extent possible.
SECTION 10. ENFORCEMENT. The parties agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the partes shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and
provisions of this Agreement in any court of the United States located in the
State of Delaware or in any Delaware state court, this being in addition to
any other remedy to which they are entitled at law or in equity. In addition,
each of the parties hereto (a) consents to submit itself to the personal
jurisdiction of any court of the United States located in the State of
Delaware or of any Delaware state court in the event any dispute arises out
of this Agreement or the transactions contemplated by this Agreement, (b)
agrees that it will not attempt to deny or defeat such personal jurisdiction
by motion or other request for leave from any such court, (c) agrees that it
will not bring any action relating to this Agreement or the transactions
contemplated by this Agreement in any court other than a court of the United
States located in the State of Delaware or a Delaware state court and (d)
waives any right to trial by jury with respect to any claim or proceeding
related to or arising out of this Agreement or any transaction contemplated
by this Agreement.
SECTION 11. AGENT FOR SERVICE OF PROCESS. The Stockholder
hereby appoints Pechiney Plastic Packaging , Inc., with offices on the date
hereof at 0000 X. Xxxx Xxxx Xxxxxx, Xxxxxxx, XX 00000, as its authorized
agent (the "Authorized Agent"), upon whom process may be served in any suit,
action or proceeding arising out of or relating to this Agreement or any
transaction contemplated by this Agreement that may be instituted in any
court described in Section 10. The Stockholder agrees to take any and all
action, including the filing of any and all documents, that may be necessary
to establish and continue such appointment in full force and effect as
aforesaid. The Stockholder agrees that service of process upon the Authorized
Agent shall be, in every respect, effective service of process upon the
Stockholder.
IN WITNESS WHEREOF, Rexam has caused this Agreement to be
signed by its officer thereunto duly authorized and the Stockholder has
caused this Agreement to be signed by its officer thereunto duly authorized,
all as of the date first written above.
REXAM PLC
by /s/ XXXX XXXXXXXXX
-----------------------------------
Name: Xxxx Xxxxxxxxx
Title: Chief Executive
STOCKHOLDER:
PECHINEY
by /s/ XXXX-XXXXXX XXXXXX
-----------------------------------
Name: Xxxx-Xxxxxx Xxxxxx
Title: Chairman of the Board and
Chief Executive Officer
SCHEDULE A
Number of Number of
Name and Original Original
Address of Shares Owned Shares Owned
Stockholder of Record Beneficially
----------- --------- ------------
Pechiney 25,000,000 25,000,000
0 xxxxx xx
Xxxxxxxxxx
Xxxxxxxx
00000 Xxxxx
cedex 16
France
Facsimile:
(00-0) 00000000
Attention:
Xxxxxxx Xxxx-
Charreton
