<PAGE>
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
SCHEDULE TO
TENDER OFFER STATEMENT UNDER SECTION 14(D)(1)
OR SECTION 13(E)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
---------------------
AMERICAN NATIONAL CAN GROUP, INC.
(NAME OF SUBJECT COMPANY (ISSUER))
REXAM ACQUISITION SUBSIDIARY INC.
REXAM PLC
(NAMES OF FILING PERSONS (OFFERORS))
------------------------------
COMMON STOCK, PAR VALUE $0.01 PER SHARE
(Title of Class of Securities)
--------------------------
027714104
(Cusip Number of Class of Securities)
FRANK C. BROWN, ESQ.
REXAM INC.
4201 CONGRESS STREET, SUITE 340
CHARLOTTE, NC 28209
Telephone: (704) 551-1520
(Name, address and telephone number of
person authorized to receive notices
and communications on behalf of filing persons)
COPIES TO:
Robert I. Townsend, III, Esq.
Faiza J. Saeed, Esq.
Cravath Swaine & Moore
825 Eighth Avenue
New York, New York 10019-7475
Telephone: (212) 474-1000
CALCULATION OF FILING FEE
<TABLE>
<CAPTION>
TRANSACTION VALUATION* AMOUNT OF FILING FEE**
<S> <C>
$990,000,000 $198,000
</TABLE>
* For purposes of calculating the filing fee only. This calculation assumes
the purchase of 55,000,000 shares of common stock of American National Can
Group, Inc. at the tender offer price of $18 per share of common stock.
** The amount of the filing fee, calculated in accordance with Rule 0-11 of the
Securities Exchange Act of 1934, as amended, equals 1/50 of 1% of the
transaction valuation.
/ / CHECK THE BOX IF ANY PART OF THE FEE IS OFFSET AS PROVIDED BY
RULE 0-11(A)(2) AND IDENTIFY THE FILING WITH WHICH THE OFFSETTING FEE WAS
PREVIOUSLY PAID. IDENTIFY THE PREVIOUS FILING BY REGISTRATION STATEMENT NUMBER
OR THE FORM OR SCHEDULE AND THE DATE OF ITS FILING.
<TABLE>
<S> <C>
Amount Previously Paid:...................... N/A
Form or Registration No.:.................... N/A
Filing Party:................................ N/A
Date Filed:.................................. N/A
</TABLE>
/ / CHECK THE BOX IF THE FILING RELATES TO PRELIMINARY COMMUNICATIONS MADE
BEFORE THE COMMENCEMENT OF A TENDER OFFER.
Check the appropriate boxes below to designate any transactions to which the
statement relates:
/X/ THIRD-PARTY TENDER OFFER SUBJECT TO RULE 14D-1.
/ / ISSUER TENDER OFFER SUBJECT TO RULE 13E-4.
/ / GOING-PRIVATE TRANSACTION SUBJECT TO RULE 13E-3.
/ / AMENDMENT TO SCHEDULE 13D UNDER RULE 13D-2.
Check the following box if the filing is a final amendment reporting the results
of the tender offer: / /
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<PAGE>
This Tender Offer Statement on Schedule TO (this "Schedule TO") relates to
the offer by Rexam Acquisition Subsidiary Inc., a Delaware corporation (the
"Purchaser") and a wholly owned indirect subsidiary of Rexam PLC, a public
limited company organized under the laws of England and Wales ("Parent"), to
purchase all the outstanding shares of common stock, par value $.01 per share
(the "Shares"), of American National Can Group, Inc., a Delaware corporation
(the "Company"), at a purchase price of $18 per Share, net to the seller in
cash, without interest thereon, upon the terms and subject to the conditions set
forth in the Offer to Purchase dated April 10, 2000 (the "Offer to Purchase"),
and in the related Letter of Transmittal, copies of which are filed with this
Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B), respectively. This Schedule TO
is being filed on behalf of the Purchaser and Parent.
The information set forth in the Offer to Purchase, including the Schedule
thereto, is hereby incorporated by reference in answer to items 1 through 11 of
this Schedule TO, and is supplemented by the information specifically provided
herein.
ITEM 3. IDENTITY AND BACKGROUND OF FILING PERSON.
(c) (3) and (4) During the last five years, none of the Purchaser, Parent,
Rexam Holding Company, a Delaware corporation, Rexam Inc., a Delaware
corporation, and Rexam Overseas Holdings Limited, a limited company organized
under the laws of England and Wales, nor, to the best knowledge of the Purchaser
and Parent, any of the persons listed on Schedule I to the Offer to Purchase (i)
has been convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors) or (ii) was a party to any judicial or administrative
proceeding (except for matters that were dismissed without sanction or
settlement) that resulted in a judgment, decree or final order enjoining the
person from future violations of, or prohibiting activities subject to, federal
or state securities laws, or a finding of any violation of such laws.
ITEM 5. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS.
(a) (2) Reference is made to the amendments to employment agreements between
the Company and certain of its executive officers, copies of which are filed as
Exhibits (d)(4) through (d)(10) hereto, respectively, which are incorporated
herein by reference.
ITEM 7. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The Credit Agreement between Parent and the other parties named therein
dated as of April 3, 2000, a copy of which is filed as Exhibit (b) to this
Schedule TO, is incorporated herein by reference.
ITEM 10. FINANCIAL STATEMENTS.
Not applicable.
ITEM 11. ADDITIONAL INFORMATION.
(b) The Letter of Transmittal filed as Exhibit (a)(1)(B) hereto is
incorporated herein by reference.
ITEM 12. EXHIBITS.
<TABLE>
<S> <C>
(a)(1)(A) Offer to Purchase dated April 10, 2000.
(a)(1)(B) Letter of Transmittal.
(a)(1)(C) Notice of Guaranteed Delivery.
(a)(1)(D) Letter to Brokers, Dealers, Banks, Trust Companies and Other
Nominees.
(a)(1)(E) Letter to Clients for use by Brokers, Dealers, Banks, Trust
Companies and Other Nominees.
(a)(1)(F) Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.
(a)(1)(G) Joint Press Release issued by Parent and the Company on
April 3, 2000.
</TABLE>
2
<PAGE>
<TABLE>
<S> <C>
(a)(1)(H) Summary Advertisement published April 10, 2000.
(b) Credit Agreement dated as of April 3, 2000, between Parent,
as borrower, and the Arrangers, Agent and banks named
therein.
(d)(1) Agreement and Plan of Merger dated as of March 31, 2000,
among Parent, Purchaser and the Company.
(d)(2) Stockholders Agreement dated as of March 31, 2000, between
Parent and Pechiney.
(d)(3) Confidentiality Agreement dated March 10, 2000, between
Parent and the Company.
(d)(4) First Amendment to Agreement dated as of March 31, 2000,
between the Company, American National Can Company and Allan
Bohner (incorporated by reference to Exhibit (e)(4) to
Schedule 14D-9 of the Company filed on April 10, 2000).
(d)(5) Second Amendment to Amended and Restated Executive
Employment Agreement dated as of March 31, 2000, between the
Company, American National Can Company and Curtis J. Clawson
(incorporated by reference to Exhibit (e)(5) to Schedule
14D-9 of the Company filed on April 10, 2000).
(d)(6) Second Amendment to Amended and Restated Executive
Employment Agreement dated as of March 31, 2000, between the
Company, American National Can Company and Edward A. Lapekas
(incorporated by reference to Exhibit (e)(6) to Schedule
14D-9 of the Company filed on April 10, 2000).
(d)(7) Second Amendment to Amended and Restated Executive
Employment Agreement dated as of March 31, 2000, between the
Company, American National Can Company and Michael D.
Herdman (incorporated by reference to Exhibit (e)(7) of the
Company filed on April 10, 2000).
(d)(8) Second Amendment to Amended and Restated Executive
Employment Agreement dated as of March 31, 2000, between the
Company, American National Can Company and Dennis R.
Bankowski (incorporated by reference to Exhibit (e)(8) to
Schedule 14D-9 of the Company filed on April 10, 2000).
(d)(9) Second Amendment to Amended and Restated Executive
Employment Agreement dated as of March 31, 2000, between the
Company, American National Can Company and Alan A.
Schumacher (incorporated by reference to Exhibit (e)(9) to
Schedule 14D-9 of the Company filed on April 10, 2000).
(d)(10) First Amendment to Agreement dated as of March 31, 2000
between the Company, American National Can Company and
William H. Francois (incorporated by reference to Exhibit
(e)(10) to Schedule 14D-9 of the Company filed on April 10,
2000).
(g) Not applicable.
(h) Not applicable.
</TABLE>
3
<PAGE>
SIGNATURES
After due inquiry and to the best of my knowledge and belief, I certify that
the information set forth in this statement is true, complete and correct.
REXAM ACQUISITION SUBSIDIARY INC.
By: /s/ FRANK C. BROWN
----------------------------------------
Name: Frank C. Brown
Title: President
REXAM PLC
By: /s/ DAVID GIBSON
----------------------------------------
Name: David Gibson
Title: Company Secretary
Dated: April 10, 2000
4
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NUMBER DOCUMENT
- --------------------- --------
<S> <C>
(a)(1)(A) Offer to Purchase dated April 10, 2000.
(a)(1)(B) Letter of Transmittal.
(a)(1)(C) Notice of Guaranteed Delivery.
(a)(1)(D) Letter to Brokers, Dealers, Banks, Trust Companies and Other
Nominees.
(a)(1)(E) Letter to Clients for use by Brokers, Dealers, Banks, Trust
Companies and Other Nominees.
(a)(1)(F) Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.
(a)(1)(G) Joint Press Release issued by Parent and the Company on
April 3, 2000.
(a)(1)(H) Summary Advertisement published April 10, 2000.
(b) Credit Agreement dated as of April 3, 2000, between Parent,
as borrower, and the Arrangers, Agent and banks named
therein.
(d)(1) Agreement and Plan of Merger dated as of March 31, 2000,
among Parent, Purchaser and the Company.
(d)(2) Stockholders Agreement dated as of March 31, 2000, between
Parent and Pechiney.
(d)(3) Confidentiality Agreement dated March 10, 2000, between
Parent and the Company.
(d)(4) First Amendment to Agreement dated as of March 31, 2000,
between the Company, American National Can Company and Allan
Bohner (incorporated by reference to Exhibit (e)(4) to
Schedule 14D-9 of the Company filed on April 10, 2000).
(d)(5) Second Amendment to Amended and Restated Executive
Employment Agreement dated as of March 31, 2000, between the
Company, American National Can Company and Curtis J. Clawson
(incorporated by reference to Exhibit (e)(5) to Schedule
14D-9 of the Company filed on April 10, 2000).
(d)(6) Second Amendment to Amended and Restated Executive
Employment Agreement dated as of March 31, 2000, between the
Company, American National Can Company and Edward A. Lapekas
(incorporated by reference to Exhibit (e)(6) to Schedule
14D-9 of the Company filed on April 10, 2000).
(d)(7) Second Amendment to Amended and Restated Executive
Employment Agreement dated as of March 31, 2000, between the
Company, American National Can Company and Michael D.
Herdman (incorporated by reference to Exhibit (e)(7) of the
Company filed on April 10, 2000).
(d)(8) Second Amendment to Amended and Restated Executive
Employment Agreement dated as of March 31, 2000, between the
Company, American National Can Company and Dennis R.
Bankowski (incorporated by reference to Exhibit (e)(8) to
Schedule 14D-9 of the Company filed on April 10, 2000).
(d)(9) Second Amendment to Amended and Restated Executive
Employment Agreement dated as of March 31, 2000, between the
Company, American National Can Company and Alan A.
Schumacher (incorporated by reference to Exhibit (e)(9) to
Schedule 14D-9 of the Company filed on April 10, 2000).
(d)(10) First Amendment to Agreement dated as of March 31, 2000
between the Company, American National Can Company, and
William H. Francois (incorporated by reference to Exhibit
(e)(10) to Schedule 14D-9 of the Company filed on April 10,
2000).
(g) Not applicable.
(h) Not applicable.
</TABLE>
5
<PAGE>
EXHIBIT(a)(1)(A)
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
AMERICAN NATIONAL CAN GROUP, INC.
AT
$18.00 NET PER SHARE
BY
REXAM ACQUISITION SUBSIDIARY INC.,
A WHOLLY OWNED INDIRECT SUBSIDIARY OF
Rexam PLC
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THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON FRIDAY, MAY 5, 2000, UNLESS THE OFFER IS EXTENDED.
- --------------------------------------------------------------------------------
THE OFFER IS BEING MADE PURSUANT TO THE AGREEMENT AND PLAN OF MERGER DATED
AS OF MARCH 31, 2000, AMONG REXAM PLC, REXAM ACQUISITION SUBSIDIARY INC. AND
AMERICAN NATIONAL CAN GROUP, INC. (THE "COMPANY"). THE BOARD OF DIRECTORS OF THE
COMPANY HAS UNANIMOUSLY APPROVED THE MERGER AGREEMENT, THE OFFER, THE MERGER
(EACH AS DEFINED HEREIN) AND THE OTHER TRANSACTIONS CONTEMPLATED BY THE MERGER
AGREEMENT; HAS UNANIMOUSLY DETERMINED THAT THE TERMS OF THE OFFER AND THE MERGER
ARE ADVISABLE, FAIR TO, AND IN THE BEST INTERESTS OF, THE STOCKHOLDERS OF THE
COMPANY; AND UNANIMOUSLY RECOMMENDS THAT THE STOCKHOLDERS OF THE COMPANY ACCEPT
THE OFFER AND TENDER THEIR SHARES (AS DEFINED HEREIN) PURSUANT TO THE OFFER.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER THAT NUMBER OF
SHARES THAT WOULD REPRESENT AT LEAST A MAJORITY OF ALL OUTSTANDING SHARES ON A
FULLY DILUTED BASIS.
IMPORTANT
Any stockholder desiring to tender all or any portion of such stockholder's
Shares should either (1) complete and sign the Letter of Transmittal (or
facsimile thereof) in accordance with the instructions in the Letter of
Transmittal, have such stockholder's signature thereon guaranteed if required by
Instruction 1 to the Letter of Transmittal, mail or deliver the Letter of
Transmittal (or such facsimile) and any other required documents to Citibank,
N.A. (the "DEPOSITARY") and deliver the certificates for such Shares to the
Depositary along with the Letter of Transmittal (or such facsimile) or, in the
case of a book-entry transfer effected pursuant to the procedures described in
Section 2, deliver an Agent's Message (as defined herein) and any other required
documents to the Depositary and deliver such Shares pursuant to the procedures
for book-entry transfer described in Section 2, in each case prior to the
expiration of the Offer, or (2) request such stockholder's broker, dealer, bank,
trust company or other nominee to effect the transaction for such stockholder. A
stockholder having Shares registered in the name of a broker, dealer, bank,
trust company or other nominee must contact such broker, dealer, bank, trust
company or other nominee if such stockholder desires to tender such Shares.
A stockholder who desires to tender Shares and whose certificates for such
Shares are not immediately available or who cannot comply in a timely manner
with the procedure for book-entry transfer, or who cannot deliver all required
documents to the Depositary prior to the expiration of the Offer, may tender
such Shares by following the procedures for guaranteed delivery described in
Section 2.
Questions and requests for assistance may be directed to D. F. King & Co.,
Inc. (the "INFORMATION AGENT") or to Salomon Smith Barney Inc. at their
respective addresses and telephone numbers set forth on the back cover of this
Offer to Purchase. Additional copies of this Offer to Purchase, the Letter of
Transmittal, the Notice of Guaranteed Delivery or any other tender materials may
be obtained from the Information Agent or from brokers, dealers, banks, trust
companies or other nominees.
------------------------
THE DEALER MANAGER FOR THE OFFER IS:
Salomon Smith Barney
April 10, 2000
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
--------
<S> <C>
SUMMARY TERM SHEET.......................................... 1
INTRODUCTION................................................ 5
THE TENDER OFFER............................................ 7
1. Terms of the Offer.................................. 7
2. Procedures for Tendering Shares..................... 9
3. Withdrawal Rights................................... 12
4. Acceptance for Payment and Payment.................. 13
5. Certain U.S. Federal Income Tax Consequences........ 14
6. Price Range of the Shares; Dividends on the
Shares................................................. 15
7. Effect of the Offer on the Market for the Shares;
NYSE Listing; Exchange Act Registration; Margin
Regulations.......................................... 15
8. Certain Information Concerning the Company.......... 16
9. Certain Information Concerning Parent and the
Purchaser.............................................. 18
10. Source and Amount of Funds.......................... 18
11. Contacts and Transactions with the Company;
Background of the Offer................................ 19
12. Purpose of the Offer; the Merger Agreement; the
Stockholders Agreement; Plans for the Company.......... 20
13. Dividends and Distributions......................... 35
14. Certain Conditions of the Offer..................... 35
15. Certain Legal Matters............................... 37
16. Fees and Expenses................................... 40
17. Miscellaneous....................................... 40
SCHEDULE I--Directors and Executive Officers of Parent and
the Purchaser............................................. S-1
</TABLE>
<PAGE>
SUMMARY TERM SHEET
Rexam Acquisition Subsidiary Inc. is offering to purchase all of the
outstanding common stock of American National Can Group, Inc. for $18.00 per
share in cash. The following are some of the questions you, as a stockholder of
American National Can Group, may have and answers to those questions. We urge
you to read carefully the remainder of this offer to purchase and the letter of
transmittal because the information in this summary is not complete. Additional
important information is contained in the remainder of this offer to purchase
and the letter of transmittal.
WHO IS OFFERING TO BUY MY SHARES?
Our name is Rexam Acquisition Subsidiary Inc. We are a Delaware corporation
formed for the purpose of making a tender offer for all of the common stock of
American National Can Group. We are a wholly owned indirect subsidiary of Rexam
PLC, a public limited company organized under the laws of England and Wales. See
"Introduction" and Section 9--"Certain Information Concerning Parent and the
Purchaser"--of this offer to purchase.
WHAT SHARES ARE BEING SOUGHT IN THE OFFER?
We are seeking to purchase all of the outstanding common stock of American
National Can Group. See "Introduction" and Section 1--"Terms of the Offer"--of
this offer to purchase.
HOW MUCH ARE YOU OFFERING TO PAY, WHAT IS THE FORM OF PAYMENT AND WILL I
HAVE TO PAY ANY FEES OR COMMISSIONS?
We are offering to pay $18.00 per share, net to you, in cash. If you are the
record owner of your shares and you tender your shares to us in the offer, you
will not have to pay brokerage fees or similar expenses. If you own your shares
through a broker or other nominee, and your broker tenders your shares on your
behalf, your broker or nominee may charge you a fee for doing so. You should
consult your broker or nominee to determine whether any charges will apply. See
"Introduction" and Section 1--"Terms of the Offer"--of this offer to purchase.
DO YOU HAVE THE FINANCIAL RESOURCES TO MAKE PAYMENT?
Rexam PLC, our parent company, will provide us with sufficient funds to
acquire all tendered shares and any shares to be acquired in the merger that is
expected to follow the successful completion of the offer. Rexam PLC expects to
borrow these funds under a new committed credit facility. The offer is not
conditioned upon any financing arrangements. See Section 10--"Source and Amount
of Funds"--of this offer to purchase.
IS YOUR FINANCIAL CONDITION RELEVANT TO MY DECISION TO TENDER IN THE OFFER?
We do not think our financial condition is relevant to your decision whether
to tender shares and accept the offer because:
--the offer is being made for all outstanding shares solely for cash,
--the offer is not subject to any financing condition, and
--if we consummate the offer, we will acquire all remaining shares for the
same cash price in the merger.
1
<PAGE>
HOW LONG DO I HAVE TO DECIDE WHETHER TO TENDER IN THE OFFER?
You will have at least until 12:00 midnight, New York City time, on May 5,
2000, to tender your shares in the offer. Further, if you cannot deliver
everything that is required in order to make a valid tender by that time, you
may be able to use a guaranteed delivery procedure, which is described later in
this offer to purchase. See Section 1--"Terms of the Offer"--and
Section 2--"Procedures for Tendering Shares"--of this offer to purchase.
CAN THE OFFER BE EXTENDED AND UNDER WHAT CIRCUMSTANCES?
Subject to the terms of the merger agreement, we can extend the offer. We
have agreed in the merger agreement that:
--we will extend the offer for a period of time we believe necessary to
cause the conditions to our offer to be satisfied, if on a scheduled expiration
date any of the conditions to our offer are not satisfied; however, we are not
required to extend the offer beyond October 25, 2000; and
--we may elect to provide a "subsequent offering period" for the offer. A
subsequent offering period, if one is included, will be an additional period of
time beginning after we have purchased shares tendered during the offer, during
which stockholders may tender, but not withdraw, their shares and receive the
offer consideration. We do not currently intend to include a subsequent offering
period, although we reserve the right to do so.
See Section 1--"Terms of the Offer"--of this offer to purchase.
HOW WILL I BE NOTIFIED IF THE OFFER IS EXTENDED?
If we extend the offer, we will inform Citibank, N.A., the depositary for
the offer, of that fact and will make a public announcement of the extension,
not later than 9:00 a.m., New York City time, on the next business day after the
day on which the offer was scheduled to expire. See Section 1--"Terms of the
Offer"--of this offer to purchase.
WHAT ARE THE MOST SIGNIFICANT CONDITIONS TO THE OFFER?
There is no financing condition to the offer, however:
--we are not obligated to purchase any tendered shares unless the number of
shares validly tendered and not withdrawn before the expiration date of the
offer represents at least a majority of the shares of American National Can
Group outstanding on a fully diluted basis. We have agreed not to waive this
minimum tender condition without the consent of American National Can Group.
--we are not obligated to purchase any tendered shares if:
- there is a material adverse change in American National Can Group or its
business, other than changes affecting the beverage packaging industry
generally;
- the applicable waiting period under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976 has not expired or been terminated;
- the European antitrust authorities fail to approve the merger on terms
that are commercially reasonable on the whole or any waiting periods
applicable to any investigation by these authorities have not expired; or
- the shareholders of Rexam PLC have not approved the merger.
The offer is also subject to a number of other conditions. See
Section 14--"Certain Conditions of the Offer"--of this offer to purchase.
2
<PAGE>
HOW DO I TENDER MY SHARES?
To tender shares, you must deliver the certificates representing your
shares, together with a completed letter of transmittal and any other documents
required, to Citibank, N.A., the depositary for the offer, not later than the
time the tender offer expires. If your shares are held in street name, the
shares can be tendered by your nominee through The Depository Trust Company. If
you cannot deliver something that is required to be delivered to the depositary
by the expiration of the tender offer, you may get a little extra time to do so
by having a broker, a bank or other fiduciary that is a member of the Securities
Transfer Agents Medallion Program or other eligible institution guarantee that
the missing items will be received by the depositary within three New York Stock
Exchange trading days. For the tender to be valid, however, the depositary must
receive the missing items within that three trading day period. See
Section 2--"Procedures for Tendering Shares"--of this offer to purchase.
UNTIL WHAT TIME CAN I WITHDRAW PREVIOUSLY TENDERED SHARES?
You can withdraw shares at any time until the offer has expired and, if we
have not by June 8, 2000, agreed to accept your shares for payment, you can
withdraw them at any time after such time until we accept shares for payment.
This right to withdraw will not apply to any subsequent offering period, if one
is included. See Section 1--"Terms of the Offer"--and Section 3--"Withdrawal
Rights"--of this offer to purchase.
HOW DO I WITHDRAW PREVIOUSLY TENDERED SHARES?
To withdraw shares, you must deliver a written notice of withdrawal, or a
facsimile of one, with the required information to the depositary while you
still have the right to withdraw the shares. See Section 1--"Terms of the
Offer"--and Section 3--"Withdrawal Rights"--of this offer to purchase.
WHAT DOES THE AMERICAN NATIONAL CAN GROUP BOARD OF DIRECTORS THINK OF THE
OFFER?
We are making the offer pursuant to a merger agreement among us, Rexam PLC
and American National Can Group. The American National Can Group board of
directors unanimously approved the merger agreement, our tender offer and our
proposed merger with American National Can Group. The board of directors of
American National Can Group has determined that the offer and the merger are
advisable, fair to, and in the best interests of, the stockholders of American
National Can Group and unanimously recommends that stockholders accept the offer
and tender their shares. See the "Introduction" to this offer to purchase.
HAVE ANY STOCKHOLDERS AGREED TO TENDER THEIR SHARES?
Yes. A stockholder that owns shares representing approximately 45.5% of the
outstanding common stock of American National Can Group has agreed to tender its
shares in the offer.
WILL THE TENDER OFFER BE FOLLOWED BY A MERGER IF ALL THE SHARES ARE NOT
TENDERED IN THE OFFER?
If we accept for payment and pay for at least a majority of the outstanding
shares on a fully diluted basis of American National Can Group, we will be
merged with American National Can Group. If that merger takes place, Rexam PLC
will indirectly own all of the shares of American National Can Group, and all
other stockholders of American National Can Group will receive $18.00 per share
in cash (or any higher price per share that is paid in the offer).
There are no appraisal rights available in connection with the offer.
However, if the merger takes place, stockholders who have not sold their shares
in the offer will have appraisal rights under Delaware law. See
Section 12--"Purpose of the Offer; the Merger Agreement; the Stockholders
Agreement; Plans for the Company--Appraisal Rights"--of this offer to purchase.
3
<PAGE>
IF I DECIDE NOT TO TENDER, HOW WILL THE OFFER AFFECT MY SHARES?
If the merger takes place, stockholders who do not tender in the offer will
receive the same amount of cash per share that they would have received had they
tendered their shares in the offer, subject to their right to pursue appraisal
under Delaware law. Therefore, if the merger takes place and you do not perfect
your appraisal rights, the only difference to you between tendering your shares
and not tendering your shares is that you will be paid earlier if you tender
your shares. However, if the merger does not take place, the number of
stockholders and of shares of American National Can Group that are still in the
hands of the public may be so small that there may no longer be an active public
trading market (or, possibly, any public trading market) for the shares. Also,
the shares may no longer be eligible to be traded on the New York Stock Exchange
or any other securities exchange, and American National Can Group may cease
making filings with the SEC or otherwise cease being required to comply with the
SEC's rules relating to publicly held companies. See Section 7--"Effect of the
Offer on the Market for the Shares; NYSE Listing; Exchange Act Registration;
Margin Regulations"--and Section 12--"Purpose of the Offer; the Merger
Agreement; the Stockholders Agreement; Plans for the Company"--of this offer to
purchase.
WHAT IS THE MARKET VALUE OF MY SHARES AS OF A RECENT DATE?
On March 31, 2000, the last trading day before American National Can Group
and Rexam PLC announced that they had signed the merger agreement, the last sale
price of the shares reported on the New York Stock Exchange was $13 1/8 per
share. On April 7, 2000, the last trading day before we commenced our tender
offer, the last sale price of the shares was $16 11/16 per share. We advise you
to obtain a recent quotation for shares of American National Can Group in
deciding whether to tender your shares. See Section 6--"Price Range of the
Shares; Dividends"--of this offer to purchase.
TO WHOM CAN I TALK IF I HAVE QUESTIONS ABOUT THE TENDER OFFER?
You can call D.F. King & Co., Inc. at (800) 290-6428 (toll free) or Salomon
Smith Barney Inc. at (877) 820-8015 (toll free). D.F. King & Co., Inc. is acting
as the information agent and Salomon Smith Barney Inc. is acting as the dealer
manager for our tender offer. See the back cover of this offer to purchase.
4
<PAGE>
To the Holders of Common Stock of
AMERICAN NATIONAL CAN GROUP, INC.:
INTRODUCTION
REXAM ACQUISITION SUBSIDIARY INC., a Delaware corporation (the "PURCHASER")
and wholly owned indirect subsidiary of REXAM PLC, a public limited company
organized under the laws of England and Wales ("PARENT"), hereby offers to
purchase all the outstanding shares of common stock, par value $0.01 per share
(the "SHARES"), of AMERICAN NATIONAL CAN GROUP, INC., a Delaware corporation
(the "COMPANY"), at a price of $18.00 per Share, net to the seller in cash,
without interest thereon (the "OFFER PRICE"), upon the terms and subject to the
conditions set forth in this Offer to Purchase and in the related Letter of
Transmittal (which, together with any amendments or supplements hereto or
thereto, collectively constitute the "OFFER").
Tendering stockholders whose shares are registered in their own names and
who tender directly to the Depositary (as defined below) will not be obligated
to pay brokerage fees or commissions or, except as set forth in Instruction 6 of
the Letter of Transmittal, transfer taxes on the purchase of Shares pursuant to
the Offer. Stockholders who hold their Shares through banks or brokers should
check with such institutions as to whether they charge any service fees. The
Purchaser will pay all fees and expenses of Salomon Smith Barney Inc., which is
acting as Dealer Manager (the "DEALER MANAGER"), Citibank, N.A., which is acting
as the Depositary (the "DEPOSITARY"), and D.F. King & Co., Inc., which is acting
as the Information Agent (the "INFORMATION AGENT"), incurred in connection with
the Offer. See Section 16.
The Offer is being made pursuant to the Agreement and Plan of Merger dated
as of March 31, 2000 (the "MERGER AGREEMENT"), among Parent, the Purchaser and
the Company, pursuant to which, following the consummation of the Offer and the
satisfaction or waiver of certain conditions, the Purchaser will be merged with
and into the Company, with the Company surviving the merger as a wholly owned
indirect subsidiary of Parent (the "MERGER"). In the Merger each outstanding
Share (other than Shares owned by Parent, the Purchaser or the Company or any
subsidiary of Parent or the Company or by stockholders, if any, who are entitled
to and properly exercise appraisal rights under Delaware law) will be converted
into the right to receive the price per Share paid pursuant to the Offer in
cash, without interest thereon.
Simultaneously with the execution of the Merger Agreement, Parent entered
into a Stockholders Agreement dated as of March 31, 2000 (the "STOCKHOLDERS
AGREEMENT"), with Pechiney (the "PRINCIPAL STOCKHOLDER"). The Principal
Stockholder has represented in the Stockholders Agreement that it has voting and
dispositive control over 25,000,000 Shares, which represented approximately
45.5% of the outstanding Shares as of March 29, 2000. Pursuant to the
Stockholders Agreement the Principal Stockholder has agreed, among other things,
to tender all such Shares pursuant to the Offer and has agreed to vote such
Shares in favor of the Merger.
The Merger Agreement and the Stockholders Agreement are more fully described
in Section 12.
THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY APPROVED THE MERGER
AGREEMENT, THE OFFER, THE MERGER AND THE OTHER TRANSACTIONS CONTEMPLATED BY THE
MERGER AGREEMENT; HAS UNANIMOUSLY DETERMINED THAT THE TERMS OF THE OFFER AND THE
MERGER ARE ADVISABLE, FAIR TO, AND IN THE BEST INTERESTS OF, THE STOCKHOLDERS OF
THE COMPANY; AND UNANIMOUSLY RECOMMENDS THAT STOCKHOLDERS OF THE COMPANY ACCEPT
THE OFFER AND TENDER THEIR SHARES PURSUANT TO THE OFFER. THE FACTORS CONSIDERED
BY THE BOARD OF DIRECTORS OF THE COMPANY IN ARRIVING AT ITS DECISION TO APPROVE
THE MERGER AGREEMENT, THE OFFER, THE MERGER AND THE OTHER TRANSACTIONS
CONTEMPLATED BY THE MERGER AGREEMENT AND TO RECOMMEND THAT STOCKHOLDERS OF THE
COMPANY ACCEPT THE OFFER AND TENDER THEIR SHARES PURSUANT TO THE OFFER ARE
DESCRIBED IN THE COMPANY'S SOLICITATION/RECOMMENDATION STATEMENT ON
SCHEDULE 14D-9 (THE "SCHEDULE 14D-9"), WHICH HAS BEEN FILED WITH THE SECURITIES
AND EXCHANGE COMMISSION (THE "COMMISSION") AND IS BEING MAILED TO STOCKHOLDERS
OF THE COMPANY CONCURRENTLY HEREWITH.
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DEUTSCHE BANK SECURITIES INC. HAS ACTED AS THE COMPANY'S FINANCIAL ADVISOR.
THE OPINION OF DEUTSCHE BANK SECURITIES INC., DATED MARCH 31, 2000, THAT, AS OF
SUCH DATE, THE CONSIDERATION TO BE RECEIVED IN THE OFFER AND THE MERGER BY THE
HOLDERS OF SHARES IS FAIR TO SUCH HOLDERS FROM A FINANCIAL POINT OF VIEW IS SET
FORTH IN FULL AS AN ANNEX TO THE SCHEDULE 14D-9. STOCKHOLDERS ARE URGED TO, AND
SHOULD, READ THE SCHEDULE 14D-9 AND SUCH OPINION CAREFULLY IN THEIR ENTIRETY.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (A) THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION DATE (AS DEFINED IN
SECTION 1 HEREOF) THAT NUMBER OF SHARES THAT WOULD REPRESENT AT LEAST A MAJORITY
OF THE FULLY DILUTED SHARES (AS DEFINED IN SECTION 14 HEREOF) ON THE DATE OF
PURCHASE (THE "MINIMUM CONDITION"), (B) ANY WAITING PERIOD UNDER THE
HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF 1976, AS AMENDED (THE "HSR
ACT"), APPLICABLE TO THE PURCHASE OF SHARES PURSUANT TO THE OFFER OR TO THE
MERGER HAVING EXPIRED OR BEEN TERMINATED, (C) THE EC COMMISSION HAVING DECLARED
IN TERMS, THAT, TAKEN TOGETHER WITH CLAUSE (D)(II) BELOW, ARE NOT MATERIALLY
COMMERCIALLY UNREASONABLE IN THE AGGREGATE, THAT THE CONCENTRATION IS COMPATIBLE
WITH THE COMMON MARKET PURSUANT TO ARTICLE 6(1)(B) OR ARTICLE 8(2) OF THE
COUNCIL REGULATION (EEC) NO. 4064/89 (AS AMENDED BY COUNCIL REGULATION (EC)
NO. 1310/97), (D) IN THE EVENT THAT A REQUEST UNDER ARTICLE 9(2) OF THE COUNCIL
REGULATION (EEC) NO. 4064/89 (AS AMENDED BY COUNCIL REGULATION (EC)
NO. 1310/97) HAS BEEN MADE BY ONE OR MORE EUROPEAN UNION OR EFTA STATES, EITHER
(I) THE EUROPEAN COMMISSION HAVING INDICATED THAT IT DOES NOT INTEND TO REFER
THE PROPOSED ACQUISITION, OR ANY ASPECT THEREOF, TO A COMPETENT AUTHORITY OF
SUCH STATE OR (II) IF SUCH REFERRAL IS MADE, THE STATE(S) HAVING RESOLVED THEIR
INVESTIGATIONS, IN TERMS, TAKEN TOGETHER WITH CLAUSE (C) ABOVE, THAT ARE NOT
MATERIALLY COMMERCIALLY UNREASONABLE IN THE AGGREGATE, OR ANY APPLICABLE WAITING
PERIOD(S) HAVING EXPIRED, (E) THE APPROVAL OF THE MERGER AGREEMENT, THIS OFFER
AND THE MERGER BY THE SHAREHOLDERS OF PARENT AND (F) THE RECEIPT OF OTHER
REQUISITE MATERIAL REGULATORY AND ANTITRUST CLEARANCES.
Consummation of the Merger is subject to a number of conditions, including
approval by stockholders of the Company, if such approval is required under
applicable law, and Shares having been purchased pursuant to the Offer. In the
event the Purchaser acquires 90% or more of the outstanding Shares pursuant to
the Offer or otherwise, the Purchaser will be able to effect the Merger pursuant
to the "short-form" merger provisions of the Delaware General Corporation Law
(the "DGCL"), without prior notice to, or any action by, any other stockholder
of the Company. In such event, the Purchaser intends to effect the Merger
without prior notice to, or any action by, any other stockholder of the Company.
See Section 12.
The Company has informed the Purchaser that, as of March 29, 2000, there
were: (a) 55,000,000 Shares issued and outstanding; (b) 3,543,216 Shares
reserved for issuance upon the exercise of outstanding options to purchase
Shares from the Company; and (c) approximately 59,055,510 Fully Diluted Shares.
Based upon the foregoing and assuming that no Shares are otherwise issued after
March 29, 2000, the Minimum Condition will be satisfied if at least 29,527,756
Shares are validly tendered and not withdrawn prior to the Expiration Date. The
actual number of Shares required to be tendered to satisfy the Minimum Condition
will depend upon the actual number of Fully Diluted Shares on the date that the
Purchaser accepts Shares for payment pursuant to the Offer. If the Minimum
Condition is satisfied, and the Purchaser accepts for payment Shares tendered
pursuant to the Offer, the Purchaser will be able to elect a majority of the
members of the Company's Board of Directors and to effect the Merger without the
affirmative vote of any other stockholder of the Company. See Section 12.
Certain U.S. federal income tax consequences of the sale of Shares pursuant
to the Offer and the conversion of Shares pursuant to the Merger are described
in Section 5.
THIS OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN
IMPORTANT INFORMATION AND SHOULD BE READ CAREFULLY AND IN THEIR ENTIRETY BEFORE
ANY DECISION IS MADE WITH RESPECT TO THE OFFER.
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THE TENDER OFFER
1. TERMS OF THE OFFER
Upon the terms and subject to the conditions of the Offer, the Purchaser
will accept for payment and pay for all Shares validly tendered prior to the
Expiration Date and not theretofore withdrawn in accordance with Section 3. The
term "EXPIRATION DATE" means 12:00 midnight, New York City time, on May 5, 2000,
unless and until the Purchaser shall have extended the period of time during
which the Offer is open in accordance with the terms of Merger Agreement, in
which event the term "EXPIRATION DATE" shall mean the latest time and date on
which the Offer, as so extended by the Purchaser, will expire.
The Purchaser may, without the consent of the Company, and expressly
reserves the right (but shall not be obligated), to extend the Offer, and
thereby delay acceptance for payment of, and the payment for, any Shares, by
giving oral or written notice of such extension to the Depositary, (a) for one
or more periods of time that the Purchaser reasonably believes are necessary to
cause the conditions of the Offer in the Merger Agreement to be satisfied, if at
the Expiration Date any of the conditions to the Purchaser's obligation to
purchase Shares are not satisfied, until such time as such conditions are
satisfied or waived or (b) for any period required by any rule, regulation,
interpretation or position of the Commission or the staff thereof applicable to
the Offer. If all of the conditions to the Offer are not satisfied on the
Expiration Date then the Purchaser will extend the Offer for one or more periods
of time that the Purchaser reasonably believes are necessary to cause the
conditions of the Offer to be satisfied from time to time until such conditions
are satisfied or waived; PROVIDED that the Purchaser will not be required to
extend the Offer beyond October 25, 2000. UNDER NO CIRCUMSTANCES WILL INTEREST
BE PAID ON THE PURCHASE PRICE FOR TENDERED SHARES, REGARDLESS OF ANY EXTENSION
OF OR AMENDMENT TO THE OFFER OR ANY DELAY IN PAYING FOR SUCH SHARES.
The Purchaser expressly reserves the right (but shall not be obligated), at
any time and from time to time, to waive any condition to the Offer or modify
the terms of the Offer, by giving oral or written notice of such waiver or
modification to the Depositary, except that, without the consent of the Company,
the Purchaser shall not (i) reduce the number of Shares subject to the Offer,
(ii) reduce the price per Share to be paid pursuant to the Offer, (iii) waive
the Minimum Condition or modify or add to the conditions of the Offer in any
manner adverse to the holders of Shares, (iv) except as provided above, extend
the Offer, (v) change the form of consideration payable in the Offer or (vi)
otherwise amend the Offer in any manner adverse to the holders of Shares.
If by 12:00 midnight, New York City time, on May 5, 2000 (or any date or
time then set as the Expiration Date), any of or all the conditions to the Offer
have not been satisfied or waived, the Purchaser, subject to the terms of the
Merger Agreement and the applicable rules and regulations of the Commission,
reserves the right (but shall not be obligated) (a) to terminate the Offer and
not accept for payment or pay for any Shares and return all tendered Shares to
tendering stockholders, (b) except as set forth above with respect to the
Minimum Condition, to waive all the unsatisfied conditions and accept for
payment and pay for all Shares validly tendered prior to the Expiration Date and
not theretofore validly withdrawn, (c) as set forth above, to extend the Offer
and, subject to the right of stockholders to withdraw Shares until the
Expiration Date, retain the Shares that have been tendered during the period or
periods for which the Offer is extended or (d) except as set forth above, to
amend the Offer.
Any extension, waiver, amendment or termination will be followed as promptly
as practicable by public announcement thereof. An announcement in the case of an
extension will be made no later than 9:00 a.m., Eastern time, on the next
business day after the previously scheduled Expiration Date. Without limiting
the manner in which Purchaser may choose to make any public announcement,
subject to applicable law (including Rules 14d-4(d) and 14d-6(c) under the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), which require
that material changes be promptly disseminated to
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holders of Shares), we will have no obligation to publish, advertise or
otherwise communicate any such public announcement other than by issuing a
release to the Dow Jones News Service. As used in this Offer to Purchase,
"BUSINESS DAY" has the meaning set forth in Rule 14d-1 under the Exchange Act.
If the Purchaser makes a material change in the terms of the Offer or the
information concerning the Offer or waives a material condition of the Offer,
the Purchaser will disseminate additional tender offer materials and extend the
Offer to the extent required by Rules 14d-4(d), 14d-6(c) and 14e-1 under the
Exchange Act. The minimum period during which an offer must remain open
following material changes in the terms of such offer or information concerning
such offer, other than a change in price or a change in the percentage of
securities sought, will depend upon the facts and circumstances then existing,
including the relative materiality of the changed terms or information. With
respect to a change in price or a change in the percentage of securities sought,
a minimum period of 10 business days is generally required to allow for adequate
dissemination to stockholders.
Pursuant to Rule 14d-11 under the Exchange Act, although the Purchaser does
not currently intend to do so, the Purchaser may, subject to certain conditions,
elect to provide a subsequent offering period of from three business days to 20
business days in length following the expiration of the Offer on the Expiration
Date and acceptance for payment of the Shares tendered in the Offer (a
"SUBSEQUENT OFFERING PERIOD"). A Subsequent Offering Period would be an
additional period of time, following the expiration of the Offer and the
purchase of Shares in the Offer, during which stockholders may tender Shares not
tendered in the Offer. A Subsequent Offering Period, if one is included, is not
an extension of the Offer, which already will have been completed.
During a Subsequent Offering Period, tendering stockholders will not have
withdrawal rights and the Purchaser will promptly purchase and pay for any
Shares tendered at the same price paid in the Offer. Rule 14d-11 provides that
the Purchaser may provide a Subsequent Offering Period so long as, among other
things, (i) the initial 20-business day period of the Offer has expired,
(ii) the Purchaser offers the same form and amount of consideration for Shares
in the Subsequent Offering Period as in the initial Offer, (iii) the Purchaser
immediately accepts and promptly pays for all securities tendered during the
Offer prior to its expiration, (iv) the Purchaser announces the results of the
Offer, including the approximate number and percentage of Shares deposited in
the Offer, no later than 9:00 a.m., Eastern time, on the next business day after
the Expiration Date and immediately begins the Subsequent Offering Period and
(v) the Purchaser immediately accepts and promptly pays for Shares as they are
tendered during the Subsequent Offering Period. The Purchaser will be able to
include a Subsequent Offering Period, if it satisfies the conditions above,
after May 5, 2000. In a public release, the Commission has expressed the view
that the inclusion of a Subsequent Offering Period would constitute a material
change to the terms of the Offer requiring the Purchaser to disseminate new
information to stockholders in a manner reasonably calculated to inform them of
such change sufficiently in advance of the Expiration Date (generally five
business days). In the event the Purchaser elects to include a Subsequent
Offering Period, it will notify stockholders of the Company consistent with the
requirements of the Commission.
THE PURCHASER DOES NOT CURRENTLY INTEND TO INCLUDE A SUBSEQUENT OFFERING
PERIOD IN THE OFFER, ALTHOUGH IT RESERVES THE RIGHT TO DO SO IN ITS SOLE
DISCRETION. PURSUANT TO RULE 14D-7 UNDER THE EXCHANGE ACT, NO WITHDRAWAL RIGHTS
APPLY TO SHARES TENDERED DURING A SUBSEQUENT OFFERING PERIOD AND NO WITHDRAWAL
RIGHTS APPLY DURING THE SUBSEQUENT OFFERING PERIOD WITH RESPECT TO SHARES
TENDERED IN THE OFFER AND ACCEPTED FOR PAYMENT. THE SAME CONSIDERATION WILL BE
PAID TO STOCKHOLDERS TENDERING SHARES IN THE OFFER OR IN A SUBSEQUENT OFFERING
PERIOD, IF ONE IS INCLUDED.
The Company has provided the Purchaser with the Company's stockholder lists
and security position listings for the purpose of disseminating the Offer to
holders of Shares. This Offer to Purchase, the related Letter of Transmittal and
other relevant materials will be mailed to record holders of Shares, and will be
furnished to brokers, dealers, banks, trust companies and similar persons
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whose names, or the names of whose nominees, appear on the stockholder lists,
or, if applicable, who are listed as participants in a clearing agency's
security position listing, for subsequent transmittal to beneficial owners of
Shares.
2. PROCEDURES FOR TENDERING SHARES
VALID TENDER. For a stockholder validly to tender Shares pursuant to the
Offer, (a) the certificates for tendered Shares, together with a Letter of
Transmittal (or facsimile thereof), properly completed and duly executed, any
required signature guarantees and any other required documents, must, prior to
the Expiration Date, be received by the Depositary at one of its addresses set
forth on the back cover of this Offer to Purchase; (b) in the case of a transfer
effected pursuant to the book-entry transfer procedures described under
"Book-Entry Transfer", either a Letter of Transmittal (or facsimile thereof),
properly completed and duly executed, and any required signature guarantees, or
an Agent's Message (as defined below), and any other required documents, must be
received by the Depositary at one of such addresses, such Shares must be
delivered pursuant to the book-entry transfer procedures described below and a
Book-Entry Confirmation (as defined below) must be received by the Depositary,
in each case prior to the Expiration Date; or (c) the tendering stockholder
must, prior to the Expiration Date, comply with the guaranteed delivery
procedures described below under "Guaranteed Delivery".
The valid tender of Shares pursuant to one of the procedures described above
will constitute a binding agreement between the tendering stockholder and the
Purchaser upon the terms and subject to the conditions of the Offer.
THE METHOD OF DELIVERY OF SHARES, THE LETTER OF TRANSMITTAL AND ALL OTHER
REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH THE BOOK-ENTRY TRANSFER FACILITY
(AS DEFINED BELOW), IS AT THE ELECTION AND RISK OF THE TENDERING STOCKHOLDER.
SHARES WILL BE DEEMED DELIVERED ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY
(INCLUDING, IN THE CASE OF A BOOK-ENTRY TRANSFER, BY BOOK-ENTRY CONFIRMATION).
IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY
INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO
ENSURE TIMELY DELIVERY.
BOOK-ENTRY TRANSFER. The Depositary will establish an account with respect
to the Shares at The Depository Trust Company (the "BOOK-ENTRY TRANSFER
FACILITY") for purposes of the Offer within two business days after the date of
this Offer to Purchase. Any financial institution that is a participant of the
Book-Entry Transfer Facility's system may make book-entry delivery of Shares by
causing the Book-Entry Transfer Facility to transfer such Shares into the
Depositary's account in accordance with the Book-Entry Transfer Facility's
procedures for such transfer. However, although delivery of Shares may be
effected through book-entry transfer into the Depositary's account at the
Book-Entry Transfer Facility, the Letter of Transmittal (or facsimile thereof),
properly completed and duly executed, with any required signature guarantees, or
an Agent's Message, and any other required documents, must be, in any case,
received by the Depositary at one of its addresses set forth on the back cover
of this Offer to Purchase prior to the Expiration Date for a valid tender of
Shares by book-entry. The confirmation of a book-entry transfer of Shares into
the Depositary's account at the Book-Entry Transfer Facility as described above
is referred to herein as a "BOOK-ENTRY CONFIRMATION". DELIVERY OF DOCUMENTS TO
THE BOOK-ENTRY TRANSFER FACILITY IN ACCORDANCE WITH THE BOOK-ENTRY TRANSFER
FACILITY'S PROCEDURES DOES NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
The term "AGENT'S MESSAGE" means a message, transmitted by the Book-Entry
Transfer Facility to, and received by, the Depositary and forming a part of a
Book-Entry Confirmation, which states that the Book-Entry Transfer Facility has
received an express acknowledgment from the participant in the Book-Entry
Transfer Facility tendering the Shares that such participant has received and
agrees to be bound by the terms of the Letter of Transmittal and that the
Purchaser may enforce such agreement against the participant.
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SIGNATURE GUARANTEES. No signature guarantee is required on the Letter of
Transmittal if (a) the Letter of Transmittal is signed by the registered
holder(s) (which term, for purposes of this Section 2, includes any participant
in the Book-Entry Transfer Facility's system whose name appears on a security
position listing as the owner of the Shares) of Shares tendered therewith and
such registered holder has not completed either the box entitled "Special
Delivery Instructions" or the box entitled "Special Payment Instructions" on the
Letter of Transmittal or (b) such Shares are tendered for the account of a
financial institution (including most commercial banks, savings and loan
associations and brokerage houses) that is a participant in the Security
Transfer Agents Medallion Program, the New York Stock Exchange Medallion
Signature Guarantee Program or the Stock Exchange Medallion Program (such
participant, an "ELIGIBLE INSTITUTION"). In all other cases, all signatures on
the Letter of Transmittal must be guaranteed by an Eligible Institution. See
Instructions 1 and 5 to the Letter of Transmittal. If the certificates for
Shares are registered in the name of a person other than the signer of the
Letter of Transmittal, or if payment is to be made or certificates for Shares
not tendered or not accepted for payment are to be returned to a person other
than the registered holder of the certificates surrendered, the tendered
certificates must be endorsed or accompanied by appropriate stock powers, in
either case signed exactly as the name or names of the registered holders or
owners appear on the certificates, with the signatures on the certificates or
stock powers guaranteed as aforesaid. See Instructions 1 and 5 to the Letter of
Transmittal.
GUARANTEED DELIVERY. If a stockholder desires to tender Shares pursuant to
the Offer and such stockholder's certificates for Shares are not immediately
available or the book-entry transfer procedures cannot be completed on a timely
basis or time will not permit all required documents to reach the Depositary
prior to the Expiration Date, such stockholder's tender may be effected if all
the following conditions are met:
(a) such tender is made by or through an Eligible Institution;
(b) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form provided by the Purchaser, is received
by the Depositary at one of its addresses set forth on the back cover of
this Offer to Purchase prior to the Expiration Date; and
(c) Either (i) the certificates for tendered Shares together with a
Letter of Transmittal (or facsimile thereof), properly completed and duly
executed, and any required signature guarantees, and any other required
documents are received by the Depositary at one of its addresses set forth
on the back cover of this Offer to Purchase within three trading days after
the date of execution of such Notice of Guaranteed Delivery or (ii) in the
case of a book-entry transfer effected pursuant to the book-entry transfer
procedures described above under "Book-Entry Transfer", either a Letter of
Transmittal (or facsimile thereof), properly completed and duly executed,
and any required signature guarantees, or an Agent's Message, and any other
required documents, is received by the Depositary at one of such addresses,
such Shares are delivered pursuant to the book-entry transfer procedures
above and a Book-Entry Confirmation is received by the Depositary, in each
case within three trading days after the date of execution of such Notice of
Guaranteed Delivery. A "TRADING DAY" is any day on which the New York Stock
Exchange, Inc. (the "NYSE") is open for business.
The Notice of Guaranteed Delivery may be delivered by hand to the Depositary
or transmitted by telegram, facsimile transmission or mail to the Depositary and
must include a guarantee by an Eligible Institution in the form set forth in
such Notice of Guaranteed Delivery.
OTHER REQUIREMENTS. Notwithstanding any provision hereof, payment for
Shares accepted for payment pursuant to the Offer will in all cases be made only
after timely receipt by the Depositary of (a) certificates for (or a timely
Book-Entry Confirmation with respect to) such Shares, (b) a Letter of
Transmittal (or facsimile thereof), properly completed and duly executed, with
any required signature guarantees (or, in the case of a book-entry transfer, an
Agent's Message in lieu of the Letter of
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Transmittal) and (c) any other documents required by the Letter of Transmittal.
Accordingly, tendering stockholders may be paid at different times depending
upon when certificates for Shares or Book-Entry Confirmations with respect to
Shares are actually received by the Depositary. UNDER NO CIRCUMSTANCES WILL
INTEREST BE PAID BY THE PURCHASER ON THE PURCHASE PRICE OF THE SHARES,
REGARDLESS OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING SUCH PAYMENT.
APPOINTMENT. By executing a Letter of Transmittal (or facsimile thereof),
(or, in the case of a book-entry transfer, by delivery of an Agent's Message, in
lieu of a Letter of Transmittal), a tendering stockholder will irrevocably
appoint designees of the Purchaser as such stockholder's attorneys-in-fact and
proxies in the manner set forth in the Letter of Transmittal, each with full
power of substitution, to the full extent of such stockholder's rights with
respect to the Shares tendered by such stockholder and accepted for payment by
the Purchaser and with respect to any and all other Shares or other securities
or rights issued or issuable in respect of such Shares on or after April 10,
2000. All such proxies will be considered coupled with an interest in the
tendered Shares. Such appointment will be effective when, and only to the extent
that, the Purchaser accepts for payment Shares tendered by such stockholder as
provided herein. Upon the effectiveness of such appointment, all prior powers of
attorney, proxies and consents given by such stockholder with respect to such
Shares or other securities or rights will, without further action, be revoked
and no subsequent powers of attorney, proxies, consents or revocations may be
given (and, if given, will not be effective). The designees of the Purchaser
will thereby be empowered to exercise all voting and other rights with respect
to such Shares and other securities or rights in respect of any annual, special
or adjourned meeting of the Company's stockholders, actions by written consent
in lieu of any such meeting or otherwise, as they in their sole discretion deem
proper. The Purchaser reserves the right to require that, in order for Shares to
be deemed validly tendered, immediately upon the Purchaser's acceptance for
payment of such Shares, the Purchaser must be able to exercise full voting,
consent and other rights with respect to such Shares and other securities or
rights, including voting at any meeting of stockholders.
DETERMINATION OF VALIDITY. All questions as to the validity, form,
eligibility (including time of receipt) and acceptance of any tender of Shares
will be determined by the Purchaser in its sole discretion, which determination
will be final and binding. The Purchaser reserves the absolute right to reject
any or all tenders determined by it not to be in proper form or the acceptance
for payment of or payment for which may, in the opinion of the Purchaser, be
unlawful. The Purchaser also reserves the absolute right to waive any defect or
irregularity in the tender of any Shares of any particular stockholder whether
or not similar defects or irregularities are waived in the case of other
stockholders. No tender of Shares will be deemed to have been validly made until
all defects or irregularities relating thereto have been cured or waived. None
of the Purchaser, Parent, the Company, the Depositary, the Information Agent,
the Dealer Manager or any other person will be under any duty to give
notification of any defects or irregularities in tenders or incur any liability
for failure to give any such notification. The Purchaser's interpretation of the
terms and conditions of the Offer (including the Letter of Transmittal and the
instructions thereto and any other related documents thereto) will be final and
binding.
BACKUP WITHHOLDING. In order to avoid "backup withholding" of U.S. federal
income tax on payments of cash pursuant to the Offer, a stockholder surrendering
Shares in the Offer must, unless an exemption applies, provide the Depositary
with such stockholder's correct taxpayer identification number ("TIN") on a
Substitute Form W-9 and certify under penalties of perjury that such TIN is
correct and that such Stockholder is not subject to backup withholding. If a
stockholder does not provide such stockholder's correct TIN or fails to provide
the certifications described above, the Internal Revenue Service (the "IRS") may
impose a penalty on such stockholder and payment of cash to such stockholder
pursuant to the Offer may be subject to backup withholding of 31%. All
stockholders surrendering Shares pursuant to the Offer should complete and sign
the main signature
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<PAGE>
form and the Substitute Form W-9 included as part of the Letter of Transmittal
to provide the information and certification necessary to avoid backup
withholding (unless an applicable exemption exists and is proved in a manner
satisfactory to the Purchaser and the Depositary). Certain stockholders
(including, among others, all corporations and certain foreign individuals and
entities) are not subject to backup withholding. Noncorporate foreign
stockholders should complete and sign the main signature form and a Form W-8,
Certificate of Foreign Status, a copy of which may be obtained from the
Depositary, in order to avoid backup withholding. See Instruction 9 to the
Letter of Transmittal.
3. WITHDRAWAL RIGHTS
Except as otherwise provided in this Section 3, tenders of Shares are
irrevocable. Shares tendered pursuant to the Offer may be withdrawn pursuant to
the procedures set forth below at any time prior to the Expiration Date and,
unless theretofore accepted for payment and paid for by the Purchaser pursuant
to the Offer, may also be withdrawn at any time after June 8, 2000.
For a withdrawal to be effective, a written or facsimile transmission notice
of withdrawal must be timely received by the Depositary at one of its addresses
set forth on the back cover of this Offer to Purchase and must specify the name
of the person having tendered the Shares to be withdrawn, the number of Shares
to be withdrawn and the name of the registered holder of the Shares to be
withdrawn, if different from the name of the person who tendered the Shares. If
certificates for Shares have been delivered or otherwise identified to the
Depositary, then, prior to the physical release of such certificates, the serial
numbers shown on such certificates must be submitted to the Depositary and,
unless such Shares have been tendered by an Eligible Institution, any and all
signatures on the notice of withdrawal must be guaranteed by all Eligible
Institution. If Shares have been tendered pursuant to the book-entry transfer
procedures described in Section 2, any notice of withdrawal must also specify
the name and number of the account at the Book-Entry Transfer Facility to be
credited with the withdrawn Shares and otherwise comply with the Book-Entry
Transfer Facility's procedures. Withdrawals of tenders of Shares may not be
rescinded, and any Shares properly withdrawn will thereafter be deemed not
validly tendered for purposes of the Offer. However, withdrawn Shares may be
retendered by again following one of the procedures described in Section 2 at
any time prior to the Expiration Date.
All questions as to the form and validity (including time of receipt) of any
notice of withdrawal will be determined by the Purchaser in its sole discretion,
which determination will be final and binding. None of the Purchaser, Parent,
the Company, the Depositary, the Information Agent, the Dealer Manager or any
other person will be under any duty to give notification of any defects or
irregularities in any notice of withdrawal or incur any liability for failure to
give any such notification.
In the event the Purchaser provides a Subsequent Offering Period following
the Offer, no withdrawal rights will apply to Shares tendered during such
Subsequent Offering Period or to Shares tendered in the Offer and accepted for
payment.
4. ACCEPTANCE FOR PAYMENT AND PAYMENT
Upon the terms and subject to the conditions of the Offer (including, if the
Offer is extended or amended, the terms and conditions of any such extension or
amendment), the Purchaser will accept for payment and will pay for all Shares
validly tendered prior to the Expiration Date and not properly withdrawn in
accordance with Section 3 promptly after the Expiration Date. The Purchaser,
subject to the Merger Agreement, expressly reserves the right, in its sole
discretion, to delay acceptance for payment of or payment for Shares in order to
comply in whole or in part with any applicable law, including, without
limitation, the HSR Act and European antitrust laws. Any such delays will be
effected in compliance with Rule 14e-1(c) under the Exchange Act (relating to a
bidder's obligation to
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<PAGE>
pay for or return tendered securities promptly after the termination or
withdrawal of such bidder's offer).
In all cases, payment for Shares accepted for payment pursuant to the Offer
will be made only after timely receipt by the Depositary of (a) the certificates
for such Shares, together with a Letter of Transmittal (or facsimile thereof),
properly completed and duly executed, and any required signature guarantees or
(b) in the case of a transfer effected pursuant to the book-entry transfer
procedures described in Section 2, a Book-Entry Confirmation and either a Letter
of Transmittal (or facsimile thereof), properly completed and duly executed, and
any required signature guarantees, or an Agent's Message, and any other required
documents. Accordingly, tendering stockholders may be paid at different times
depending upon when certificates for Shares or Book-Entry Confirmations with
respect to Shares are actually received by the Depositary.
The per Share consideration paid to any stockholder pursuant to the Offer
will be the highest per Share consideration paid to any other stockholder
pursuant to the Offer.
For purposes of the Offer, the Purchaser will be deemed to have accepted for
payment, and thereby purchased, Shares validly tendered to the Purchaser and not
properly withdrawn as, if and when the Purchaser gives oral or written notice to
the Depositary of the Purchaser's acceptance for payment of such Shares. Upon
the terms and subject to the conditions of the Offer, payment for Shares
accepted for payment pursuant to the Offer will be made by deposit of the
purchase price therefor with the Depositary, which will act as an agent for
tendering stockholders for the purpose of receiving payment from the Purchaser
and transmitting payment to tendering stockholders whose Shares have been
accepted for payment. UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID ON THE
PURCHASE PRICE FOR TENDERED SHARES, REGARDLESS OF ANY EXTENSION OF OR AMENDMENT
TO THE OFFER OR ANY DELAY IN PAYING FOR SUCH SHARES.
If the Purchaser is delayed in its acceptance for payment of or payment for
Shares or is unable to accept for payment or pay for Shares pursuant to the
Offer for any reason, then, without prejudice to the Purchaser's rights under
the Offer (but subject to compliance with Rule 14e-1(c) under the Exchange Act
(relating to a bidder's obligation to pay for or return tendered securities
promptly after the termination or withdrawal of such bidder's offer) and the
terms of the Merger Agreement (requiring that the Purchaser pay for Shares
accepted for payment as soon as practicable after the Expiration Date)), the
Depositary may, nevertheless, on behalf of the Purchaser, retain tendered
Shares, and such Shares may not be withdrawn except to the extent tendering
stockholders are entitled to do so as described in Section 3.
If any tendered Shares are not accepted for payment pursuant to the terms
and conditions of the Offer for any reason, the certificates for such Shares
will be returned (and, if certificates are submitted for more Shares than are
tendered, new certificates for the Shares not tendered will be sent) in each
case without expense to the tendering stockholder (or, in the case of Shares
delivered by book-entry transfer of such Shares into the Depositary's account at
the Book-Entry Transfer Facility pursuant to the book-entry transfer procedures
described in Section 2, such Shares will be credited to an account maintained at
the Book-Entry Transfer Facility), as promptly as practicable after the
expiration or termination of the Offer.
The Purchaser reserves the right to transfer or assign, in whole or from
time to time in part, to Parent, or to one or more direct or indirect wholly
owned subsidiaries of Parent, the right to purchase Shares tendered pursuant to
the Offer, but any such transfer or assignment will not relieve the Purchaser of
its obligations under the Offer and will in no way prejudice the rights of
tendering stockholders to receive payment for Shares validly tendered and
accepted for payment pursuant to the Offer.
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<PAGE>
5. CERTAIN U.S. FEDERAL INCOME TAX CONSEQUENCES
The receipt of cash pursuant to the Offer or the Merger will be a taxable
transaction for U.S. federal income tax purposes under the Internal Revenue Code
of 1986, as amended (the "CODE"), and may also be a taxable transaction under
applicable state, local or foreign income or other tax laws. Generally, for U.S.
federal income tax purposes, a tendering stockholder will recognize gain or loss
equal to the difference between the amount of cash received by the stockholder
pursuant to the Offer or Merger and the aggregate adjusted tax basis in the
Shares tendered by the stockholder and purchased pursuant to the Offer or
converted into cash in the Merger, as the case may be. Gain or loss will be
calculated separately for each block of Shares tendered and purchased pursuant
to the Offer or converted into cash in the Merger, as the case may be.
If tendered Shares are held by a tendering stockholder as capital assets,
gain or loss recognized by such stockholder will be capital gain or loss, which
will be long-term capital gain or loss if such stockholder's holding period for
the Shares exceeds one year. In the case of a tendering noncorporate
stockholder, long-term capital gains will be eligible for a maximum U.S. federal
income tax rate of 20%. In addition, there are limits on the deductibility of
losses.
A stockholder (other than certain exempt stockholders including, among
others, all corporations and certain foreign individuals) that tenders Shares
may be subject to 31% backup withholding unless the stockholder provides its TIN
and certifies that such number is correct (or properly certifies that it is
awaiting a TIN) and certifies as to no loss of exemption from backup withholding
and otherwise complies with the applicable requirements of the backup
withholding rules. A stockholder that does not furnish a required TIN or that
does not otherwise establish a basis for an exemption from backup withholding
may be subject to a penalty imposed by the IRS. See "Backup Withholding" under
Section 2. Each stockholder should complete and sign the Substitute Form W-9
included as part of the Letter of Transmittal so as to provide the information
and certification necessary to avoid backup withholding.
If backup withholding applies to a stockholder, the Depositary is required
to withhold 31% from payments to such stockholder. Backup withholding is not an
additional tax. Rather, the amount of the backup withholding can be credited
against the U.S. federal income tax liability of the person subject to the
backup withholding, provided that the required information is given to the IRS.
If backup withholding results in an overpayment of tax, a refund can be obtained
by the stockholder by filing a U.S. federal income tax return.
The foregoing discussion may not be applicable with respect to Shares
received pursuant to the exercise of employee stock options or otherwise as
compensation or with respect to holders of Shares who are subject to special tax
treatment under the Code--such as non-U.S. persons, life insurance companies,
tax-exempt organizations and financial institutions--and may not apply to a
holder of Shares in light of individual circumstances, such as holding Shares as
a hedge or as part of a hedging, straddle, conversion or other risk-reduction
transaction. STOCKHOLDERS ARE URGED TO CONSULT THEIR OWN TAX ADVISORS TO
DETERMINE THE PARTICULAR TAX CONSEQUENCES TO THEM (INCLUDING THE APPLICATION AND
EFFECT OF ANY STATE, LOCAL OR FOREIGN INCOME AND OTHER TAX LAWS) OF THE OFFER
AND THE MERGER.
6. PRICE RANGE OF THE SHARES; DIVIDENDS ON THE SHARES
The Shares are listed on the NYSE under the symbol "CAN", and have been at
all times since July 28, 1999. The following table sets forth, for each of the
periods indicated, the high and low sales
14
<PAGE>
prices per Share on the NYSE Composite Transactions Tape and the amount of cash
dividends paid per Share.
<TABLE>
<CAPTION>
COMMON STOCK
HIGH LOW CASH DIVIDENDS
-------- -------- ---------------
<S> <C> <C> <C>
Fiscal Year Ended December 31, 1999:
Third Quarter (from July 28, 1999)........................ $17 1/4 $14 $0.14
Fourth Quarter............................................ $15 11/16 $11 3/8 $0.14
Fiscal Year Ending December 31, 2000:
First Quarter............................................. $14 3/16 $ 9 $0.14
Second Quarter (through April 7, 2000).................... $17 7/16 $16 9/16 --
</TABLE>
On March 31, 2000, the last full trading day before the public announcement
of the execution of the Merger Agreement, the last reported sales price of the
Shares on the NYSE Composite Transactions Tape was $13 1/8 per Share. On April
7, 2000, the last full trading day before commencement of the Offer, the last
reported sales price of the Shares on the NYSE Composite Transactions Tape was
$16 11/16 per Share. STOCKHOLDERS ARE URGED TO OBTAIN CURRENT MARKET QUOTATIONS
FOR THE SHARES.
7. EFFECT OF THE OFFER ON THE MARKET FOR THE SHARES; NYSE LISTING; EXCHANGE ACT
REGISTRATION; MARGIN REGULATIONS
MARKET FOR THE SHARES. The purchase of Shares pursuant to the Offer will
reduce the number of holders of Shares and the number of Shares that might
otherwise trade publicly and could adversely affect the liquidity and market
value of the remaining Shares held by the public.
NYSE LISTING. Depending upon the number of Shares purchased pursuant to the
Offer, the Shares may no longer meet the requirements for continued listing on
the NYSE. According to the NYSE's published guidelines, the NYSE would consider
delisting the Shares if, among other things, the number of publicly held Shares
falls below 600,000, the total number of holders of Shares falls below 400 (or
below 1,200 if the average monthly trading volume is below 100,000 Shares for
the most recent 12 months) or the Company's average total global market
capitalization over a consecutive 30-trading day period is less than
$15,000,000. Shares held by officers or directors of the Company or their
immediate families, or by any beneficial owner of more than 10% or more of the
Shares, ordinarily will not be considered as being publicly held for this
purpose. According to the Company, as of March 29, 2000, there were 55,000,000
Shares outstanding. If, as a result of the purchase of Shares pursuant to the
Offer or otherwise, the Shares no longer meet the requirements of the NYSE for
continued listing and the Shares are no longer listed, the market for Shares
could be adversely affected.
If the NYSE were to delist the Shares, it is possible that the Shares would
continue to trade on other securities exchanges or in the over-the-counter
market and that price quotations would be reported by such exchanges. The extent
of the public market for the Shares and the availability of such quotations
would, however, depend upon the number of holders of Shares remaining at such
time, the interests in maintaining a market in Shares on the part of securities
firms, the possible termination of registration of the Shares under the Exchange
Act as described below, and other factors.
EXCHANGE ACT REGISTRATION. The Shares are currently registered under the
Exchange Act. Such registration may be terminated upon application of the
Company to the Commission if the Shares are neither listed on a national
securities exchange nor held by 300 or more holders of record. Termination of
registration of the Shares under the Exchange Act would reduce the information
required to be furnished by the Company to its stockholders and to the
Commission and would make certain provisions of the Exchange Act no longer
applicable to the Company, such as the short-swing profit-recovery provisions of
Section 16(b) of the Exchange Act and the requirement of furnishing a proxy
statement pursuant to Section 14(a) or 14(c) of the Exchange Act in connection
with stockholders' meetings and
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<PAGE>
the related requirement of furnishing an annual report to stockholders.
Furthermore, the ability of "affiliates" of the Company and persons holding
"restricted securities" of the Company to dispose of such securities pursuant to
Rule 144 or 144A promulgated under the Securities Act of 1933, as amended, may
be impaired or eliminated. The Purchaser intends to seek to cause the Company to
apply for termination of registration of the Shares under the Exchange Act as
soon after the completion of the Offer as the requirements for such termination
are met.
MARGIN REGULATIONS. The Shares are currently "margin securities" under the
regulations of the Board of Governors of the Federal Reserve System (the
"FEDERAL RESERVE BOARD"), which has the effect, among other things, of allowing
brokers to extend credit on the collateral of the Shares. Depending upon factors
similar to those described above regarding listing and market quotations, it is
possible that, following the Offer, the Shares would no longer constitute
"margin securities" for the purposes of the margin regulations of the Federal
Reserve Board and therefore could no longer be used as collateral for loans made
by brokers.
8. CERTAIN INFORMATION CONCERNING THE COMPANY
The Company is a Delaware corporation with its principal offices at 8770
West Bryn Mawr Avenue, Chicago, IL 60631, telephone number (773) 399-3000.
According to the Company's Annual Report for the fiscal year ended December 31,
1999, the Company is engaged in the manufacture and sale of aluminum and steel
beverage cans for the soft drink, beer, fruit drink and tea markets.
Set forth below is certain selected financial information with respect to
the Company and its subsidiaries excerpted from the information contained in the
Company's Annual Report on Form 10-K for the fiscal year ended December 31,
1999. More comprehensive financial information is included in such reports and
other documents filed by the Company with the Commission, and the following
summary is qualified in its entirety by reference to such reports, other
documents and all the financial information (including any related notes)
contained therein. Such reports and other documents should be available for
inspection and copies thereof should be obtainable in the manner set forth below
under "Available Information".
AMERICAN NATIONAL CAN GROUP, INC.
SELECTED CONSOLIDATED FINANCIAL INFORMATION
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
------------------------------------------
1997 1998 1999
Income Statement Data: ------------ ------------ ------------
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C>
Net Sales........................................ $2,465,018 $2,458,849 $2,328,074
Operating Income From Continuing Operations...... 112,462 200,905 220,761
Net Income....................................... 12,447 113,649 100,353
Net Income Per Share............................. 0.23 2.07 1.82
</TABLE>
<TABLE>
<CAPTION>
DECEMBER 31,
-----------------------
1998 1999
Balance Sheet Data: ---------- ----------
(IN THOUSANDS)
<S> <C> <C>
Total Current Assets........................................ $ 743,600 $ 577,096
Total Assets................................................ 3,927,217 3,226,818
Total Current Liabilities................................... 1,270,469 683,734
Total Liabilities........................................... 2,360,399 2,159,125
Total Equity................................................ 1,538,288 1,060,691
</TABLE>
CERTAIN COMPANY PROJECTIONS. During the course of discussions between
representatives of Parent and the Company, the Company provided Parent or its
representatives with certain non-public business
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<PAGE>
and financial information about the Company. This information included the
following projections of net sales, net income and earnings per share for the
Company for the years 2000 through 2004:
<TABLE>
<CAPTION>
2000 2001 2002 2003 2004
-------- -------- -------- -------- --------
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C>
Net Sales................................... $2,492 $2,570 $2,668 $2,744 $2,825
Net Income.................................. 101 119 134 152 173
Earnings Per Share.......................... 1.83 2.16 2.44 2.77 3.14
</TABLE>
The Company has advised the Purchaser and Parent that it does not as a
matter of course make public any projections as to future performance or
earnings, and the projections set forth above are included in this Offer to
Purchase only because this information was provided to Parent. The projections
were not prepared with a view to public disclosure or compliance with the
published guidelines of the Commission or the guidelines established by the
American Institute of Certified Public Accountants regarding projections or
forecasts. The projections do not purport to present operations in accordance
with generally accepted accounting principles, and the Company's independent
auditors have not examined or compiled the projections and accordingly assume no
responsibility for them. The Company has advised the Purchaser and Parent that
its internal financial forecasts (upon which the projections provided to Parent
and the Purchaser were based in part) are, in general, prepared solely for
internal use and capital budgeting and other management decisions and are
subjective in many respects and thus susceptible to interpretations and periodic
revision based on actual experience and business developments. The projections
also reflect numerous assumptions made by management of the Company, with
respect to industry performance (including expectations with respect to the
pricing environment in the beverage packaging industry), forecasting on pension
returns, general business, economic, market and financial conditions and other
matters, including effective tax rates consistent with historical levels for the
Company and expected debt payments, all of which are difficult to predict, many
of which are beyond the Company's control, and none of which were subject to
approval by Parent or the Purchaser. Accordingly, there can be no assurance that
the assumptions made in preparing the projections will prove accurate. It is
expected that there will be differences between actual and projected results,
and actual results may be materially greater or less than those contained in the
projections. The inclusion of the projections herein should not be regarded as
an indication that any of Parent, the Purchaser, the Company or their respective
affiliates or representatives considered or consider the projections to be a
reliable prediction of future events, and the projections should not be relied
upon as such. None of Parent, the Purchaser, the Company or any of their
respective affiliates or representatives has made or makes any representation to
any person regarding the ultimate performance of the Company compared to the
information contained in the projections, and none of them intends to update or
otherwise revise the projections to reflect circumstances existing after the
date when made or to reflect the occurrence of future events even in the event
that any or all of the assumptions underlying the projections are shown to be in
error.
AVAILABLE INFORMATION. The Company is subject to the informational
requirements of the Exchange Act and, in accordance therewith, is required to
file reports and other information with the Commission relating to its business,
financial condition and other matters. Certain information as of particular
dates concerning the Company's directors and officers, their remuneration, stock
options and other matters, the principal holders of the Company's securities and
any material interest of such persons in transactions with the Company is
required to be disclosed in the Company's proxy statements distributed to the
Company's stockholders and filed with the Commission. Such reports, proxy
statements and other information should be available for inspection at the
public reference facilities of the Commission at 450 Fifth Street, N.W.,
Washington, DC 20549, and at the regional offices of the Commission located at
Seven World Trade Center, 13th Floor, New York, NY 10048 and Northwestern Atrium
Center, 500
17
<PAGE>
West Madison Street, Suite 1400, Chicago, IL 60661. Copies of such information
should be obtainable, by mail, upon payment of the Commission's customary
charges, by writing to the Commission's principal office at 450 Fifth Street,
N.W., Washington, DC 20549. The Commission also maintains a Web site on the
Internet at http://www.sec.gov/ that contains reports, proxy and information
statements and other information regarding registrants that file electronically
with the Commission. Such information should also be available for inspection at
the library of the NYSE, 20 Broad Street, New York, NY 10005.
Except as otherwise stated in this Offer to Purchase, the information
concerning the Company contained herein has been taken from or based upon
publicly available documents on file with the Commission and other publicly
available information. Although Parent and the Purchaser do not have any
knowledge that any such information is untrue, neither the Purchaser nor Parent
takes any responsibility for the accuracy or completeness of such information or
for any failure by the Company to disclose events that may have occurred and may
affect the significance or accuracy of any such information.
9. CERTAIN INFORMATION CONCERNING PARENT AND THE PURCHASER
The Purchaser, a Delaware corporation that is a wholly owned indirect
subsidiary of Parent, was organized to acquire the Company and has not conducted
any unrelated activities since its organization. All outstanding shares of
capital stock of the Purchaser are owned by Rexam Holding Company, a Delaware
corporation ("RHC") and a wholly owned direct subsidiary of Rexam Inc. Rexam
Inc. is a Delaware corporation ("RI") and a wholly owned direct subsidiary of
Rexam Overseas Holdings Limited. Rexam Overseas Holdings Limited is a limited
company organized under the laws of England and Wales ("ROHI") and a wholly
owned direct subsidiary of Parent.
Parent is a public limited company organized under the laws of England and
Wales and is a global consumer packaging company. The principal office of Parent
and ROHI is located at 4 Millbank, London SW1P 3XR, United Kingdom, telephone
number 011-44-207-227-4100. The principal office of the Purchaser, RHC and RI is
located at 4201 Congress Street, Suite 340, Charlotte, NC 28209, telephone
number (704) 551-1500. ROHI is a holding company of Parent. RI either directly
or through RHC, its Delaware holding company, owns all of Parent's indirect
operating subsidiaries in the United States.
The name, citizenship, business address, present principal occupation or
employment and five-year employment history of each of the directors and
executive officers of the Purchaser and Parent are set forth in Schedule I
hereto.
Except as described in this Offer to Purchase, none of the Purchaser,
Parent, RHC, RI and ROHI (together, the "CORPORATE ENTITIES") or, to the best
knowledge of the Purchaser and Parent, any of the persons listed in Schedule I
or any associate or majority-owned subsidiary of the Purchaser, Parent, RHC, RI
or ROHI or any of the persons so listed, beneficially owns any equity security
of the Company, and none of the Corporate Entities or, to the best knowledge of
the Purchaser and Parent, any of the other persons referred to above, or any of
the respective directors, executive officers or subsidiaries of any of the
foregoing, has effected any transaction in any equity security of the Company
during the past 60 days.
Except as described in this Offer to Purchase or the Schedule TO (as defined
below), (a) there have not been any contacts, transactions or negotiations
between the Corporate Entities, any of their respective subsidiaries or, to the
best knowledge of the Purchaser and Parent, any of the persons listed in
Schedule I, on the one hand, and the Company or any of its directors, officers
or affiliates, on the other hand, that are required to be disclosed pursuant to
the rules and regulations of the Commission and (b) none of the Corporate
Entities or, to the best knowledge of the Purchaser and Parent, any of
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<PAGE>
the persons listed in Schedule I has any contract, arrangement, understanding or
relationship with any person with respect to any securities of the Company.
Because the only consideration in the Offer and Merger is cash and the Offer
covers all outstanding Shares, and in view of the absence of a financing
condition and the amount of consideration payable in relation to the committed
credit facility and other financial capacity of Parent and its affiliates, the
Purchaser believes the financial condition of Parent and its affiliates is not
material to a decision by a holder of Shares whether to sell, tender or hold
Shares pursuant to the Offer.
10. SOURCE AND AMOUNT OF FUNDS
The Offer is not conditioned on any financing arrangements.
The total amount of funds required by the Purchaser to purchase all
outstanding Shares pursuant to the Offer and to pay fees and expenses related to
the Offer and the Merger is estimated to be approximately $1,048,000,000. The
Purchaser plans to obtain all funds needed for the Offer and the Merger through
capital contributions or loans that will be made by Parent, either directly or
through one or more wholly owned subsidiaries of Parent, to the Purchaser.
Parent plans to make these contributions or loans through funds it will receive
pursuant to a credit facility agreement between Parent, as borrower, ABN AMRO
Bank N.V., Banque Nationale de Paris, Citibank N.A., Credit Suisse First Boston,
HSBC Investment Bank plc, Lloyds TSB Capital Markets and Westdeutsche Landesbank
Girozentrale, as Arrangers, Lloyds TSB Bank plc, as Agent, and the banks named
in the Credit Agreement dated April 3, 2000, for the provision of a
US$1.6 billion and [EURO]2 billion revolving credit facility (the "CREDIT
AGREEMENT"), incorporating a guarantee to be granted by Parent in favor of each
Finance Party (as defined in the Credit Agreement) in respect of all of the
obligations of the Borrowers (as defined in the Credit Agreement) under the
Finance Documents (as defined in the Credit Agreement).
The foregoing description is qualified in its entirety by reference to the
Credit Agreement, a copy of which is filed as Exhibit (b) to the Tender Offer
Statement on Schedule TO filed by Parent and the Purchaser with the Commission
on the date hereof (the "SCHEDULE TO"). The Credit Agreement should be read in
its entirety for a more complete description of the matters summarized above.
11. CONTACTS AND TRANSACTIONS WITH THE COMPANY; BACKGROUND OF THE OFFER
From time to time prior to the Company's initial public offering on
August 2, 1999 (the "Initial Public Offering"), the Principal Stockholder had
expressed an interest in selling the Company, which was at that time a wholly
owned subsidiary of the Principal Stockholder. Prior to the Initial Public
Offering, Parent and the Principal Stockholder from time to time had
inconclusive discussions in that regard.
Following the Initial Public Offering, Rolf Borjesson, the Chief Executive
Officer of Parent, on various occasions discussed Parent's interest in exploring
a business combination involving the Company with Jean-Pierre Rodier, the Chief
Executive Officer of the Principal Stockholder, as well as with Edward Lapekas,
the Chairman and Chief Executive Officer of the Company.
On February 8, 2000, the Company's financial advisor, Deutsche Bank, was
informed by Rothschild & Cie Banque, the Principal Stockholder's financial
advisor, of Parent's interest in exploring a merger between Parent and the
Company in an all-stock transaction at an implied exchange ratio of the
then-prevailing market prices of the two companies. On February 8, 2000, the
closing price of the Shares was $12 per Share. In response to this inquiry,
representatives of Deutsche Bank met with representatives of Schroders plc
("SCHRODERS") and Salomon Smith Barney Inc. ("SALOMON SMITH BARNEY"), Parent's
financial advisors, on February 15, 2000, to further discuss Parent's proposal,
and
19
<PAGE>
indicated that, based on the implied value of the proposal, such proposal would
not be the basis for further discussions.
On February 23, 2000, Mr. Borjesson sent the Company a letter indicating
Parent's continued interest in exploring a business combination with the
Company. Parent noted that it would be willing to pursue a transaction pursuant
to which each Share would be exchanged for $13.60 in cash and $2.80 worth of
Parent common stock per Share. Parent also stated that it would be willing to
consider alternative forms of consideration, including a cash election
transaction pursuant to which the Company's stockholders could elect to receive
cash or stock in exchange for their shares, provided that no more than 80% of
the aggregate consideration to be paid in exchange for Shares would be paid in
cash. Mr. Borjesson called Mr. Lapekas later that day to inform him that Parent
would also be willing to consider an all-cash transaction at $17.00 per share.
On March 2, 2000, the financial and legal advisors to the Company met with
the financial advisors of Parent and indicated that the Company's Board of
Directors had met on February 24, 2000, and that it did not find a $17.00 per
share offer compelling. Representatives from Deutsche Bank advised Parent to
provide the Company with a revised proposal, including the highest price at
which it would be prepared to make an offer.
On March 7, 2000, at the direction of Parent, representatives of Salomon
Smith Barney called to state Parent's willingness to explore a business
combination with the Company at an all-cash price of $17.75 per Share, subject
to among other terms, a need for a period of due diligence.
Following the Company's Board meeting on March 6, 2000, Mr. Lapekas called
Mr. Borjesson on March 7, 2000, to inform him that the Company was willing to
promptly proceed with Parent, provided that Parent raised its indicated offer
price. Parent indicated that it would be willing to pay $18.00 cash per Share.
On March 10, 2000, Parent and the Company executed a Confidentiality
Agreement (the "CONFIDENTIALITY AGREEMENT").
During the week of March 13, 2000, representatives of Parent and their
advisors met with members of the Company's management and representatives from
Deutsche Bank to conduct a review of the Company's business and operations. Also
during this period, Parent conducted legal, business and financial due diligence
with respect to the Company.
On March 18, 2000, Parent's legal advisors provided drafts of an acquisition
agreement and a stockholders agreement pursuant to which the Principal
Stockholder would, among other things, agree to support the transaction with
Parent. Parent stated that the execution of the stockholders agreement would be
a condition for Parent's entry into the proposed transaction. Between March 18,
2000, and March 21, 2000, Parent's and the Company's respective legal advisors
began negotiating the proposed draft of acquisition agreement.
Parent, the Company, and their respective advisors continued negotiation of
the acquisition agreement between March 21, 2000, and March 31, 2000, and an
agreement was reached resulting in the Merger Agreement. Also during the period
between March 21, 2000, and March 31, 2000, Parent, the Principal Stockholder
and their respective advisors negotiated the terms of the stockholders
agreement, and an agreement was reached resulting in the Stockholders Agreement.
On March 29, 2000, Parent's Board of Directors approved the Offer, the
Merger, the Merger Agreement and the other transactions contemplated thereby,
subject to the satisfactory negotiation of the merger agreement and stockholders
agreement. On Friday afternoon, March 31, 2000, the Company's Board of Directors
approved the Offer, the Merger, the Merger Agreement and the other transactions
contemplated thereby. Subsequently, Parent and the Company executed the Merger
Agreement, and Parent and Pechiney executed the Stockholders Agreement.
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On Monday morning, April 3, 2000, Parent and the Company issued a joint
press release in the United States announcing the execution of the Merger
Agreement.
On April 10, 2000, in accordance with the Merger Agreement, the Purchaser
commenced the Offer.
During the Offer Parent and the Purchaser intend to have ongoing contacts
and negotiations with the Company and its directors, officers and stockholders.
12. PURPOSE OF THE OFFER; THE MERGER AGREEMENT; THE STOCKHOLDERS AGREEMENT;
PLANS FOR THE COMPANY
PURPOSE
The purpose of the Offer is to enable Parent to acquire control of the
Company and to acquire the outstanding Shares. The Offer, as the first step in
the acquisition of the Company, is intended to facilitate the acquisition of all
the outstanding Shares. The purpose of the Merger is to acquire all outstanding
Shares not tendered and purchased pursuant to the Offer or otherwise.
THE MERGER AGREEMENT
The Merger Agreement provides that, following the satisfaction or waiver of
the conditions described below under "Conditions to the Merger", the Purchaser
will be merged with and into the Company, with the Company being the surviving
corporation, and each issued Share (other than Shares owned by Parent, the
Purchaser or the Company or a subsidiary of Parent, the Purchaser or the Company
or by stockholders, if any, who are entitled to and who properly exercise
appraisal rights under Delaware law) will be converted into the right to receive
the price per Share paid pursuant to the Offer in cash, without interest
thereon.
VOTE REQUIRED TO APPROVE MERGER. The DGCL requires, among other things,
that the adoption of any plan of merger or consolidation of the Company must be
approved and found advisable by the Board of Directors of the Compamy and, if
the "short-form" merger procedure described below is not available, approved by
the holders of a majority of the Company's outstanding voting securities. The
Board of Directors of the Company has approved the Offer, the Merger and the
Merger Agreement; consequently, the only additional action of the Company that
may be necessary to effect the Merger is adoption of the Merger Agreement by the
Company's stockholders if such "short-form" merger procedure is not available.
If required by the DGCL, the Company will call and hold a meeting of its
stockholders promptly following the consummation of the Offer for the purposes
of voting upon the adoption of the Merger Agreement. At any such meeting all
Shares then owned by Parent or the Purchaser will be voted in favor of the
adoption of the Merger. If the Purchaser acquires--through the Offer, the Merger
Agreement, the Stockholders Agreement or otherwise--voting power with respect to
at least a majority of the outstanding Shares (which would be the case if the
Minimum Condition were satisfied and the Purchaser were to accept for payment
Shares tendered pursuant to the Offer), it would have sufficient voting power to
effect the Merger without the affirmative vote of any other stockholder of the
Company.
The DGCL also provides that, if a parent company owns at least 90% of the
outstanding shares of each class of stock of a subsidiary, the parent company
may merge that subsidiary into the parent company, or the parent company may
merge itself into that subsidiary, pursuant to the "short-form" merger
procedures without prior notice to, or the approval of, the other stockholders
of the subsidiary. In order to consummate the Merger pursuant to these
provisions of the DGCL, the Purchaser would have to own at least 90% of the
outstanding Shares. Accordingly, if, as a result of the Offer or otherwise, the
Purchaser acquires or controls the voting power of at least 90% of the
outstanding Shares, the Purchaser intends to effect the Merger without prior
notice to, or any action by, any other stockholder of the Company.
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CONDITIONS TO THE MERGER. The Merger Agreement provides that the respective
obligations of each party to effect the Merger are subject to the satisfaction
or waiver of certain conditions, including the following: (a) the Company's
stockholders shall have given the Company Stockholder Approval (as defined below
under "Termination of the Merger Agreement"), if required by applicable law, and
the approval of the Merger Agreement, the Offer, the Merger and the other
transactions contemplated by the Merger Agreement by the affirmative vote of the
holders of a majority of Parent's outstanding ordinary shares to the extent
required by the rules of the London Stock Exchange ("PARENT SHAREHOLDER
APPROVAL") shall have been obtained; (b)(i) any requisite waiting period (and
any extension thereof) applicable to the Merger under the HSR Act and any other
applicable competition, merger, control, antitrust or similar law or regulation
shall have been terminated or shall have expired, (ii) the European Commission
shall have declared, in terms, taken together with those in clause (iii)(B)
below, that are not materially commercially unreasonable in the aggregate, that
the concentration is compatible with the common market pursuant to Article
6(1)(b) or Article 8(2) of Council Regulation (EEC) No. 4064/89 (as amended by
Council Regulation (EC) No. 1310/97) (the "REGULATION"), and (iii) in the event
that a request under Article 9(2) of the Regulation has been made by one or more
European Union or European Free Trade Area ("EFTA") states, (A) the European
Commission shall have indicated that it does not intend to refer the proposed
acquisition, or any aspect thereof, to a competent authority of such state in
accordance with Article 9 of the Regulation or (B) if such referral is made, the
state(s) shall have resolved their investigations, in terms, taken together with
those in clause (ii) above, that are not materially commercially unreasonable in
the aggregate, or any applicable waiting period(s) shall have expired; (c) no
temporary restraining order, preliminary or permanent injunction or other order
or decree issued by any court of competent jurisdiction or other legal restraint
or prohibition (collectively, "LEGAL RESTRAINTS") that has the effect of
preventing the consummation of the Merger shall be in effect; PROVIDED, HOWEVER,
that each of the parties shall have used commercially reasonable efforts to
prevent the entry of any such injunction or other order and to appeal as
promptly as practicable any injunction or other order that may be entered; and
(d) the Purchaser shall have previously accepted for payment and paid for the
Shares pursuant to the Offer.
TERMINATION OF THE MERGER AGREEMENT. The Merger Agreement may be terminated
at any time prior to the effective time of the Merger (the "EFFECTIVE TIME"),
whether before or after adoption of the Merger Agreement by the stockholders of
the Company or the shareholders of Parent:
(a) by mutual written consent of Parent, the Purchaser and the Company;
(b) by either Parent or the Company:
(i) if the Purchaser shall not have accepted for payment any Shares
pursuant to the Offer prior to October 25, 2000; PROVIDED that this right
to terminate the Merger Agreement is not available to any party whose
breach of the Merger Agreement has been a principal reason the Offer has
not been consummated by such date;
(ii) if any domestic or foreign government or any court,
administrative agency or commission or other governmental or regulatory
authority or agency (a "GOVERNMENTAL ENTITY") shall have issued an order,
injunction or other decree or ruling or taken any other action
permanently enjoining, restraining or otherwise prohibiting the
acceptance for payment of, or payment for the Shares pursuant to the
Offer or the Merger and such order, injunction, decree or ruling or other
action shall have become final and nonappealable; or
(iii) if the Parent Shareholder Approval shall not have been obtained
at the Parent shareholders meeting duly convened therefor or at any
adjournment or postponement thereof;
(c) by Parent (i) if the Board of Directors of the Company or any
committee thereof shall have (A) withdrawn or modified its recommendation of
the Merger Agreement, the Offer or the Merger or (B) failed to confirm its
recommendation to the Company's stockholders that they accept the Offer and
give the Company Stockholder Approval within four business days after a
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written request by Parent that it do so if such request is made following
the making of a Takeover Proposal (as defined below under "Takeover
Proposals"); PROVIDED that Parent may not make more than one such request in
respect of a Takeover Proposal unless such proposal has been materially
modified or (ii) if another person, other than the Principal Stockholder,
shall have acquired more than 15% of the outstanding Shares. "COMPANY
STOCKHOLDER APPROVAL" means approval of the Merger by an affirmative vote of
the holders of a majority of the outstanding Shares;
(d) prior to the Specified Date (as defined below under "Takeover
Proposals") by Parent (i) if the Company shall have breached any of its
representations, warranties or covenants contained in the Merger Agreement,
which breach would give rise to the failure of a condition set forth in
paragraph (d) or (e) of Section 14 hereof, and which breach has not been or
is incapable of being cured by the Company within 20 business days after its
receipt of written notice thereof from Parent, or (ii) if any suit, action
or proceeding set forth in paragraph (a) of Section 14 hereof shall have
prevailed and become final and nonappealable;
(e) prior to the Specified Date by the Company (i) if any of Parent's
representations and warranties contained in the Merger Agreement shall not
be true and correct, except for such failures to be true and correct that
(without giving effect to any limitation as to "materiality" set forth
therein), individually or in the aggregate, would not reasonably be expected
to have a material adverse effect on Parent or that prevent or materially
impede or delay the consummation of the Offer, the Merger or the other
transactions contemplated by the Merger Agreement, which failure has not
been or is incapable of being cured by Parent within 20 business days after
its receipt of written notice thereof from the Company, or (ii) if the Board
of Directors of Parent or any committee thereof shall have withdrawn or
modified the recommendation of such Board of Directors of the Merger
Agreement, the Offer or the Merger; or
(f) prior to the Specified Date by the Company in the circumstances
described below under "Takeover Proposals" in which such termination is
permitted, subject to compliance by the Company with the notice provisions
described below and the termination fee and expense reimbursement provisions
described below.
TAKEOVER PROPOSALS. The Merger Agreement provides that the Company will
not, nor will it permit any of its subsidiaries to, nor will it authorize or
permit any director, officer or employee of, or any investment banker, attorney,
accountant or other advisor or representative of, the Company 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 (ii) 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; PROVIDED that at any time prior to the
acceptance for payment of Shares pursuant to and subject to the conditions of
the Offer (the "SPECIFIED DATE"), the Board of Directors of the Company may, in
response to a Superior Proposal (as defined below) or a bona fide Takeover
Proposal that such Board of Directors determines in good faith is reasonably
likely to lead to a Superior Proposal (a "LIKELY SUPERIOR PROPOSAL"), in each
case that was unsolicited and that did not otherwise result from a breach of
this provision, and subject to compliance with the notification obligations
described below, (x) furnish information with respect to the Company and its
subsidiaries to the person making such Superior Proposal or Likely Superior
Proposal (and its representatives) pursuant to a customary confidentiality
agreement (which confidentiality agreement contains terms that are no less
favorable to the Company than the terms of the Confidentiality Agreement dated
March 10, 2000, between Parent and the Company (as it may be amended from time
to time); and (y) participate in discussions or negotiations with the person
making such Superior Proposal or Likely Superior Proposal (and its
representatives) regarding such Superior Proposal or Likely Superior Proposal.
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"SUPERIOR PROPOSAL" means any offer not solicited by the Company made by a
third party to consummate a tender offer, exchange offer, merger, consolidation
or similar transaction which would result in such third party (or its
shareholders) owning, directly or indirectly, more than 50% of the Shares then
outstanding (or of the surviving entity in a merger) or all or substantially all
of the assets of the Company and its subsidiaries and otherwise on terms which
the Board of Directors of the Company determines in good faith (following
receipt of the advice of a financial advisor of nationally recognized
reputation) to provide consideration to the holders of Shares with a greater
value than the consideration payable in the Merger, taking into account any
changes to the terms of the Merger Agreement proposed in writing by Parent in
response to such Superior Proposal or otherwise.
"TAKEOVER PROPOSAL" means any inquiry, proposal or offer from any person
relating to any direct or indirect acquisition or purchase of 15% or more of the
assets of the Company and its subsidiaries, taken as a whole, or 15% or more of
any class or series of equity securities of the Company or any of its
subsidiaries, any tender offer or exchange offer that if consummated would
result in any person beneficially owning 15% or more of any class or series of
equity securities of the Company or any of its subsidiaries, or any merger,
consolidation, business combination, recapitalization, liquidation, dissolution
or similar transaction involving the Company or any of its subsidiaries, other
than the transactions contemplated by the Merger Agreement.
The Merger Agreement further provides that, except as described below,
neither the Board of Directors of the Company nor any committee thereof may
(i) withdraw (or modify in a manner adverse to Parent or the Purchaser) or
propose to withdraw (or modify in a manner adverse to Parent or the Purchaser)
the approval or recommendation by such Board of Directors or any such committee
of the Merger Agreement, the Offer or the Merger, (ii) adopt, approve or
recommend, or propose to adopt, approve or recommend, any Takeover Proposal,
(iii) cause or permit the Company to enter into any letter of intent, memorandum
of understanding, agreement in principle, acquisition agreement, merger
agreement or other similar agreement (each, an "ACQUISITION AGREEMENT")
constituting or related to, or which is intended to or is reasonably likely to
lead to, any Takeover Proposal (other than a confidentiality agreement referred
to above and entered into under the circumstances described above) or
(iv) agree or resolve to take any of the actions set forth in clauses (i),
(ii) or (iii) of this sentence. Notwithstanding the foregoing, at any time prior
to the Specified Date, the Board of Directors of the Company may, in response to
a Superior Proposal that was unsolicited and that did not otherwise result from
a breach of the Company's obligations described above, withdraw or modify the
recommendation by such Board of Directors of the Merger Agreement, the Offer or
the Merger or terminate the Merger Agreement, if such Board of Directors
determines in good faith (after consultation with outside counsel) that its
fiduciary obligations require it to do so (and concurrently with or after such
termination, if it so chooses, cause the Company to enter into any Acquisition
Agreement with respect to any Superior Proposal), but only at a time that is
prior to the Specified Date and is after the fourth business day following
Parent's receipt of written notice advising Parent that the Board of Directors
of the Company is prepared to accept a Superior Proposal, specifying the
material terms and conditions of such Superior Proposal and identifying the
person making such Superior Proposal.
In addition to the obligations of the Company described in the preceding
three paragraphs, the Merger Agreement provides that the Company will promptly
(and in no event later than 72 hours) advise Parent orally and in writing of any
request for information that the Company reasonably believes could lead to or
contemplates a Takeover Proposal or of any Takeover Proposal, or any inquiry the
Company reasonably believes could lead to any Takeover Proposal, the terms and
conditions of such request, Takeover Proposal or inquiry (including any
subsequent amendment or other modification to such terms and conditions) and the
identity of the person making any such request, Takeover Proposal or inquiry.
The Company shall promptly keep Parent informed in all material respects of the
status and
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details (including amendments or proposed amendments) of any such request,
Takeover Proposal or inquiry.
The Merger Agreement provides that the provisions described above will not
prohibit the Company from taking and disclosing to its stockholders a position
contemplated by Rule 14e-2(a) promulgated under the Exchange Act or making any
disclosure to the Company's stockholders if, in the good faith judgment of the
Board of Directors of the Company, after consultation with outside counsel,
failure so to disclose would be inconsistent with applicable law; PROVIDED,
HOWEVER, that neither the Company nor the Board of Directors of the Company nor
any committee thereof shall withdraw or modify, or propose to withdraw or
modify, its position with respect to the Merger Agreement, the Offer or the
Merger (unless it is permitted to do so as described above) or adopt, approve or
recommend, or propose to adopt, approve or recommend, any Takeover Proposal.
FEES AND EXPENSES; TERMINATION FEE. The Merger Agreement provides that
except as set forth below, all fees and expenses incurred in connection with the
Merger Agreement, the Offer, the Merger and the other transactions contemplated
by the Merger Agreement shall be paid by the party incurring such fees or
expenses, whether or not the Merger is consummated.
In the event that (i) (A) a Takeover Proposal shall have been publicly
proposed or publicly announced or any person has publicly announced an intention
(whether or not conditional and whether or not withdrawn) to make a Takeover
Proposal, (B) thereafter the Merger Agreement is terminated by either Parent or
the Company as described above in paragraph (b)(i) under "Termination of the
Merger Agreement" and (C) within 12 months after such termination, the Company
or any of its subsidiaries enters into any Acquisition Agreement with respect
to, or consummates, any Takeover Proposal, (ii) (A) the Merger Agreement is
terminated by Parent as described above in paragraph (c)(ii) under "Termination
of the Merger Agreement" and (B) within 12 months after such termination, the
Company or any of its subsidiaries enters into any Acquisition Agreement with
respect to, or consummates, any Takeover Proposal, or (iii) the Merger Agreement
is terminated by Parent as described above in paragraph (c)(i) under
"Termination of the Merger Agreement" or by the Company as described in
paragraph (f) under "Termination of the Merger Agreement", then the Company
shall pay Parent a fee equal to $35,000,000 (the "TERMINATION FEE") by wire
transfer of same day funds, in the case of a payment as a result of any event
referred to in subsection (i)(C) or subsection (ii)(B) above, upon the first to
occur of such events and in the case of a payment as a result of any event
referred to in subsection (iii) above, promptly but in no event later than the
date of such termination); PROVIDED, HOWEVER, that for purposes of subsections
(i) (C) and (ii)(B) of this paragraph, the references to "15%" in the definition
of "Takeover Proposal" shall be deemed to be references to "50%". The parties
have agreed that if the party that is required to pay (the "PAYING PARTY")
pursuant to this or the following two paragraphs fails promptly to pay the
amounts due as described in this paragraph and, in order to obtain such payment,
the other party commences a suit that results in a judgment against the Paying
Party for the amounts set forth in this or either of the following two
paragraphs, as applicable, the Paying Party shall pay to the other party
interest on the amounts at the prime rate of Citibank, N.A. in effect on the
date such payment was required to be made.
The Company shall reimburse Parent and the Purchaser for all their expenses
incurred in connection with the Merger Agreement, the Offer, the Merger and the
other transactions contemplated by the Merger Agreement (i) in the event the
Merger Agreement is terminated in the circumstances described in subsections
(i) or (ii) of the immediately preceding paragraph, upon the first to occur of
the events referred to in sections (i)(C) or (ii)(B) of the immediately
preceding paragraph, as applicable, or (ii) in the event the Merger Agreement is
terminated in the circumstances described in subsection (iii) of the immediately
preceding paragraph, promptly, but in no event later than the date of such
termination; PROVIDED that the aggregate amount of such reimbursement together
with the Termination Fee shall not exceed $50,000,000 in the aggregate.
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Parent shall pay $15,000,000 to the Company (i) in the event the Merger
Agreement is terminated by Parent as described above in
paragraph (b)(iii) under "Termination of the Merger Agreement", promptly, but in
no event later than the date of such termination, or (ii) in the event the
Merger Agreement is terminated by the Company as described above in either
paragraph (b)(iii) or paragraph (e)(ii) under "Termination of the Merger
Agreement", within two business days after such termination, so long as, in
either case, the Company is not in breach of any of its representations,
warranties or covenants contained in the Merger Agreement, which breach would
give rise to a failure of a condition set forth in paragraph (d) or (e) of
Section 14 hereof.
CONDUCT OF BUSINESS. The Merger Agreement provides that during the period
from the date of the Merger Agreement to the Effective Time, except (i) as
consented to in writing by Parent, (ii) as specifically contemplated by the
Merger Agreement or (iii) as disclosed on the Company's disclosure schedule to
the Merger Agreement, the Company shall, and shall cause its subsidiaries to,
carry on their respective businesses in the ordinary course consistent with past
practice and use their commercially reasonable efforts to comply with all
applicable laws, rules and regulations and, to the extent consistent therewith,
use their commercially reasonable efforts to preserve their assets and
technology and preserve their relationships with customers, suppliers,
licensors, licensees, distributors and others having business dealings with them
in all material respects. Without limiting the generality of the foregoing, but
subject to clauses (i), (ii) and (iii) above, the Company shall not, and shall
not permit any of its subsidiaries to:
(i) (w) declare, set aside or pay any dividends on, or make any other
distributions (whether in cash, stock or property) in respect of, any of its
capital stock except for cash dividends by a direct or indirect wholly owned
subsidiary of the Company organized under the laws of any jurisdiction other
than any European subsidiary of the Company to its parent, (x) purchase,
redeem or otherwise acquire any shares of capital stock or any other
securities of the Company or its subsidiaries or any options, warrants,
calls or rights to acquire any such shares or other securities, (y) split,
combine or reclassify any of its capital stock or issue or authorize the
issuance of any other securities in respect of, in lieu of or in
substitution for shares of its capital stock or any of its other securities
or (z) liquidate or merge with any subsidiaries of the Company;
(ii) issue, deliver, sell, pledge or otherwise transfer or encumber any
shares of its capital stock, any other equity or voting interests or any
securities convertible into, or exchangeable for, or any options, warrants,
calls or rights to acquire, any such shares, voting securities or
convertible securities or any stock appreciation rights or other rights that
are linked to the price of the Shares (other than the issuance of Shares
upon the exercise of Company Stock Options (as defined in the Merger
Agreement) that were in existence on March 31, 2000);
(iii) amend its certificate of incorporation or by-laws (or similar
organizational documents);
(iv) directly or indirectly acquire or agree to acquire (A) by merging
or consolidating with, or by purchasing all or a substantial portion of the
assets of, or by any other manner, any assets constituting a business or any
corporation, partnership, joint venture or association or other entity or
division thereof, or any direct or indirect interest in any of the
foregoing, or (B) any assets other than purchases of assets in the ordinary
course of business consistent with past practice;
(v) directly or indirectly sell, lease, license, sell and leaseback,
mortgage or otherwise encumber or subject to any pledge, claim, lien,
charge, encumbrance or security interest of any kind or otherwise dispose of
any of its properties or assets or any interest therein, except sales of
(i) inventory and obsolete assets in the ordinary course of business
consistent with past practice and (ii) immaterial assets in the ordinary
course of business consistent with past practice;
(vi) (x) repurchase, accelerate, prepay or incur any indebtedness or
guarantee any indebtedness of another person or issue or sell any debt
securities or options, warrants, calls or
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other rights to acquire any debt securities of the Company or any of its
subsidiaries, guarantee any debt securities of another person, enter into
any "keep well" or other agreement to maintain any financial statement
condition of another person or enter into any arrangement having the
economic effect of any of the foregoing, except for (A) short-term
borrowings incurred in the ordinary course of business consistent with past
practice, (B) borrowings under existing credit facilities of the Company or
any of its subsidiaries up to the existing borrowing limit on March 31,
2000, or (C) any acceleration of the indebtedness of the Company and its
subsidiaries occurring as a result of the consummation of the Offer, the
Merger or the other transactions contemplated by the Merger Agreement or by
the Stockholders Agreement (PROVIDED, HOWEVER, that with respect to this
paragraph (vi)(x), such borrowings at any month end shall not exceed by more
than $50,000,000 in the aggregate the maximum amount for any month end set
forth in the Company's current 2000 budget), (y) make any loans, advances or
capital contributions to, or investments in, any other person, other than
the Company or any direct or indirect wholly owned subsidiary of the
Company, other than in the ordinary course of business consistent with past
practice and not materially greater than the amounts, if any, set forth in
the Company's current 2000 budget or (z) enter into any hedging agreement or
other financial agreement or arrangement designed to protect the Company
against fluctuations in commodities prices or current exchange rates, except
agreements or arrangements in respect of contractual commitments of the
Company entered into in the ordinary course of business consistent with past
practice;
(vii) incur or commit to incur any capital expenditures, whether by
acquisition or internal investment, or any obligations or liabilities in
connection therewith, in excess of $3,000,000 individually or $6,000,000 in
the aggregate above expenditures that are consistent (as to amount) and not
materially inconsistent (as to timing) with the Company's current capital
budget for 2000;
(viii) pay, discharge, settle or satisfy any claims (including claims of
stockholders), liabilities or obligations (whether absolute, accrued,
asserted or unasserted, contingent or otherwise), in excess of $5,000,000 in
the aggregate other than the payment, discharge or satisfaction in the
ordinary course of business consistent with past practice or as required by
their terms as in effect on the date of the Merger Agreement of claims,
liabilities or obligations reflected, reserved against or otherwise
disclosed in the most recent audited financial statements (or the notes
thereto) of the Company included in documents the Company has filed with the
Commission (for amounts not in excess of such reserves or as otherwise
disclosed) or incurred since the date of such financial statements in the
ordinary course of business consistent with past practice, or waive,
release, grant or transfer any right of material value, other than in the
ordinary course of business consistent with past practice, or waive any
material benefits of, or agree to modify in any adverse respect, or fail to
enforce, or consent to any matter with respect to which its consent is
required under, any confidentiality, standstill or similar agreement to
which the Company or any of its subsidiaries is a party;
(ix) (A) grant to any employee, officer, director, consultant or
independent contractor of the Company or any of its subsidiaries any
increase in cash compensation or pay any bonus, other than in the ordinary
course of business consistent with past practice to persons that are not
directors or Primary Company Executives (as defined in the Merger
Agreement), (B) grant to any employee, officer, director, consultant or
independent contractor of the Company or any of its subsidiaries any
increase in severance or termination pay, (C) establish, adopt, enter into
or amend any Company Benefit Agreement, (D) establish, adopt, enter into or
amend in any material respect any collective bargaining agreement (except
that the collective bargaining agreements covering the Oklahoma City,
Valparaiso or Whitehouse plants may be adopted after prior notification to
Parent) or Company Benefit Plan (as defined in the Merger Agreement),
(E) take any action to accelerate any rights or benefits, take any action to
fund or in any other way secure the payment of compensation or benefits
under any Company Benefit Agreement (as defined in the Merger
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Agreement) or Company Benefit Plan, or make any material determinations not
in the ordinary course of business consistent with past practice, under any
collective bargaining agreement or Company Benefit Plan or Company Benefit
Agreement, other than as provided below under "Stock Options", including any
payment of cash pursuant thereto or (F) amend or modify or grant any Company
Stock Option, in each case above other than (i) changes that are required by
applicable law or (ii) to satisfy obligations existing as of March 31, 2000;
(x) fail to maintain insurance existing at March 31, 2000, at
substantially comparable levels;
(xi) transfer or license to any person or entity or otherwise extend,
amend or modify any rights to the Intellectual Property Rights (as defined
in the Merger Agreement) of the Company and its subsidiaries other than in
the ordinary course of business consistent with past practices; PROVIDED
that in no event shall the Company license on an exclusive basis or sell any
Intellectual Property Rights of the Company or its subsidiaries;
(xii) enter into or amend any agreements pursuant to which any person is
granted exclusive marketing, manufacturing or other rights with respect to
any material Company product, process or technology;
(xiii) except insofar as may be required by a change in generally
accepted accounting principles in the United States or generally accepted
accounting principles of the applicable jurisdiction or changes in
applicable law, make any changes in accounting methods, principles or
practices;
(xiv) take any action that would reasonably be expected to result in
(A) any representation and warranty of the Company set forth in the Merger
Agreement that is qualified as to materiality becoming untrue, (B) any such
representation and warranty that is not so qualified becoming untrue in any
material respect or (C) any condition to the Offer or the Merger not being
satisfied;
(xv) transfer, encumber or redeem any shares of capital stock of Nacanco
Holding Europe or Nacanco Holding France; or
(xvi) authorize any of, or commit, resolve or agree to take any of, the
foregoing actions.
BOARD OF DIRECTORS. The Merger Agreement provides that promptly upon the
acceptance for payment of, and payment by the Purchaser for, any Shares pursuant
to the Offer, the Purchaser shall be entitled to designate such number of
directors on the Board of Directors of the Company as will give the Purchaser,
subject to compliance with Section 14(f) of the Exchange Act, representation on
the Board of Directors of the Company equal to that number of directors, rounded
up to the next whole number, which is the product of (a) the total number of
directors on the Board of Directors of the Company (giving effect to the
directors elected pursuant to this sentence) multiplied by (b) the percentage
that (i) such number of Shares so accepted for payment and paid for by the
Purchaser bears to (ii) the number of such Shares outstanding, and the Company
shall, at such time, cause the Purchaser's designees to be so elected; PROVIDED,
HOWEVER, that in the event that the Purchaser's designees are appointed or
elected to the Board of Directors of the Company, until the Effective Time the
Board of Directors of the Company shall have at least three directors who were
Directors on March 31, 2000, and who are not officers of the Company or
representatives of any affiliates of the Company (the "INDEPENDENT DIRECTORS");
and PROVIDED FURTHER that, in such event, if the number of Independent Directors
shall be reduced below three for any reason whatsoever, any remaining
Independent Directors (or Independent Director, if there shall be only one
remaining) shall be entitled to designate persons to fill such vacancies who
shall be deemed to be Independent Directors for purposes of the Merger Agreement
or, if no Independent Directors then remain, the other directors shall designate
three persons to fill such vacancies who are not officers, stockholders or
affiliates of the Company, Parent or the Purchaser, and such persons shall be
deemed to be Independent Directors for purposes of the Merger Agreement. Subject
to applicable law, the Company shall take all action
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requested by Parent necessary to effect any such election. In connection with
the foregoing, the Company has agreed to promptly, at the option of the
Purchaser, either increase the size of the Board of Directors of the Company or
obtain the resignation of such number of its directors as is necessary to enable
the Purchaser's designees to be elected or appointed to the Board of Directors
of the Company as provided above.
Prior to the Effective Time, the Company shall cause each member of its
Board of Directors, other than the Purchaser's designees, to execute and deliver
a letter effectuating his or her resignation as a director effective immediately
prior to the Effective Time.
STOCK OPTIONS. The Merger Agreement provides that the Board of Directors of
the Company (or, if appropriate, any committee administering the Company Stock
Plans (as defined in the Merger Agreement)) shall adopt such resolutions or take
such other actions (if any) as may be required to provide that (i) each Company
Stock Option, whether vested or unvested, shall be canceled effective
immediately after the earlier of the Specified Date if upon closing of the Offer
Parent owns directly or indirectly at least 80% of the Shares and the Effective
Time, with the holder thereof becoming entitled to receive an amount of cash
equal to the product of (x) the excess, if any, of (A) the price per Share paid
pursuant to the Offer over (B) the exercise price per Share subject to such
Company Stock Option, multiplied by (y) the number of Shares issuable pursuant
to the unexercised portion of such Company Stock Option less any tax withholding
required by the Code or any provision of state or local law and (ii) at the
earlier of the Specified Date if upon closing of the Offer Parent owns directly
or indirectly at least 80% of the Shares and the Effective Time, each deferred
stock unit, conversion share, restricted stock obligation and performance share
under the Stock Compensation Conversion Plan, Directors' Stock Plan, Directors'
Pension Conversion Plan and 1999 Long-Term Stock Incentive Plan (collectively,
the "STOCK AWARDS") shall fully vest and become immediately payable or
distributable and immediately following the earlier of the Specified Date if
upon closing of the Offer Parent owns directly or indirectly at least 80% of the
Shares and the Effective Time, each Stock Award shall be canceled and the holder
thereof shall be entitled to receive an amount in cash equal to the product of
(x) the price per Share paid pursuant to the Offer, multiplied by (y) the number
of Shares subject to such Stock Award, less any tax withholding required under
the Code or any provision of state or local law. All amounts payable pursuant to
the above arrangements shall be paid no later than two business days following
the earlier of the Specified Date, if upon closing of the Offer Parent owns
directly or indirectly at least 80% of the Shares, and the Effective Time. The
Company has agreed to use its reasonable efforts to take all actions determined
to be necessary to effectuate the foregoing as mutually agreed by Parent and the
Company. Prior to the Effective Time, the Company Board of Directors (or, if
appropriate, any committee administering the Company Stock Plans) shall take or
cause to be taken such actions as are required to cause (x) the Company Stock
Plans to terminate as of the Effective Time, subject to the prior satisfaction
of all obligations thereunder and (y) the provisions in any other Company
Benefit Plan providing for the issuance, transfer or grant of any capital stock
of the Company or any interest on or following the Effective Time in respect of
any capital stock of the Company to be deleted as of the Effective Time.
BENEFITS MATTERS. The Merger Agreement provides that, from and after the
Specified Date, Parent shall, and shall cause the Company following the
Effective Time to, honor in accordance with their respective terms the Company
Benefit Plans, Company Benefit Agreements and all of the Company's other
employee benefit, compensation, employment, severance and termination
agreements, plans and policies, including any rights or benefits arising as a
result of the transactions contemplated by the Merger Agreement (either alone or
in combination with any other event); it being agreed and acknowledged by Parent
that the transactions contemplated by the Merger Agreement constitute a "change
of control" for all purposes under all such agreements, plans and policies.
The Merger Agreement provides that, for all purposes under the employee
benefit plans of Parent and its affiliates providing benefits to any current
employees of the Company or any of its subsidiaries
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(the "COMPANY EMPLOYEES") after the Effective Time, each Company Employee shall
be credited with his or her years of service with the Company and its affiliates
(and any predecessor entities thereof) before the Effective Time, to the same
extent as such Company Employee was entitled, before the Effective Time (or if
earlier, the Specified Date), to credit for such service under any similar
Company Benefit Plans, except for purposes of benefit accrual under defined
benefit pension plans to the extent giving such credit would result in a
duplication of accrued benefits in respect of the same period of service. Parent
will, or will cause its subsidiaries to provide each Company Employee with
credit for any co-payments and deductibles incurred prior to the Effective Time
(or such earlier or later transition date to new welfare benefits plans) for the
calendar year in which the Effective Time (or such earlier or later transition
date) occurs, in satisfying any applicable deductible or out-of-pocket
requirements under any welfare plans that the Company Employees are eligible to
participate in after the Effective Time.
Parent has also agreed in the Merger Agreement that, during the period from
the Specified Date until December 31, 2001 (the "CONTINUATION PERIOD"), the
Company Employees shall continue to be provided with benefits under employee
benefit plans that are no less favorable in the aggregate to those provided to
such employees by the Company and its subsidiaries immediately prior to the
Specified Date (other than equity or equity based programs). During the
Continuation Period, Parent shall, or shall cause the Company following the
Effective Time to, honor and continue the Company's severance plans including
the severance benefits plan enhancements thereto as in effect on March 31, 2000,
without amendment or modification.
At the Effective Time, Parent and the Company will establish a retention
bonus pool in the amount of approximately $13,000,000 to be allocated among the
Company's employees and members of senior management.
The agreements described in this subsection "Benefits Matters" shall not be
construed to prevent the termination of employment of any individual Company
Employee or, subject to the limitations of the preceding paragraphs in this
subsection, any change in the employee benefits available to any individual
Company Employee or the amendment or termination of any particular Company
Benefit Plan, Company Benefit Agreement or other employee benefit plan, program,
policy or arrangement to the extent permitted by its terms as in effect
immediately prior to the Specified Date.
OPTION TO PURCHASE IDENTIFIED ASSETS. The Merger Agreement provides that at
Parent's option, Parent or one or more of its subsidiaries may purchase
immediately preceding the purchase of Shares pursuant to the Offer, at or prior
to which time the Minimum Condition shall have been satisfied, all other
conditions of the Offer shall be deemed satisfied or waived and Parent shall
have unconditionally committed to close the Offer, any of the assets of the
Company or its subsidiaries; provided that the completion of the Offer shall be
a condition subsequent to any such purchase. To exercise this option, Parent
must notify the Company in writing and such notification will identify the
assets to be purchased. Parent or its affiliates will purchase the assets by
providing to the person transferring the assets consideration equal to the
purchased assets' mutually agreed fair market value. Such consideration may take
the form of cash, notes, securities, assumption of liabilities or such other
forms as determined in Parent's sole discretion.
INDEMNIFICATION AND INSURANCE. Parent and the Purchaser have agreed in the
Merger Agreement that all rights to indemnification and exculpation from
liabilities for acts or omissions occurring at or prior to the Effective Time
existing at March 31, 2000, in favor of the then current or former directors or
officers of the Company and its subsidiaries as provided in their respective
certificates of incorporation or by-laws (or similar organizational documents)
shall be assumed by the surviving corporation in the Merger, without further
action, at the Effective Time and shall survive the Merger and shall continue in
full force and effect in accordance with their terms.
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In the event that the surviving corporation in the Merger or any of its
successors or assigns (i) consolidates with or merges into any other person and
is not the continuing or surviving corporation or entity of such consolidation
or merger or (ii) transfers or conveys all or substantially all its properties
and assets to any person, then, and in each such case, Parent shall cause proper
provision to be made so that the successors and assigns of the surviving
corporation assume the obligations described in this section "Indemnification
and Insurance".
In the Merger Agreement, Parent has agreed that for six years after the
Effective Time, Parent shall maintain in effect the Company's current directors'
and officers' liability insurance covering each person currently covered by the
Company's directors' and officers' liability insurance policy for acts or
omissions occurring prior to the Effective Time on terms with respect to such
coverage and amounts no less favorable in any material respect to such directors
and officers than those of such policy as in effect on the date of the Merger
Agreement; PROVIDED that (i) Parent may substitute therefor policies of a
reputable insurance company the material terms of which, including coverage and
amount, are no less favorable in any material respect to such directors and
officers than the insurance coverage otherwise required by this provision of the
Merger Agreement, and (ii) in no event shall Parent be required to pay aggregate
premiums for insurance described in this paragraph in excess of 150% of the
amount of the aggregate premiums paid by the Company for 1999 for such purpose;
PROVIDED FURTHER that Parent shall nevertheless be obligated to provide such
coverage as may be obtained for such 150% amount. The Company shall, to the
fullest extent permitted under applicable law and regardless of whether the
Merger becomes effective, indemnify and hold harmless each present and former
director and officer of the Company and each subsidiary of the Company (the
"INDEMNIFIED PARTIES") against all costs and expenses (including reasonable
attorneys' fees), judgments, fines, losses, claims, damages, liabilities and
settlement amounts paid in connection with any claim, action, suit, proceeding
or investigation (whether arising before or after the Effective Time), whether
civil, criminal, administrative or investigative, arising out of or pertaining
to any action or omission in their capacity as a director or officer occurring
before the Effective Time. In the event of any such claim, action, suit,
proceeding or investigation (whether arising before or after the Effective
Time), (i) the Company shall pay the reasonable fees and expenses of counsel
selected by the Indemnified Parties, which counsel shall be reasonably
satisfactory to the Company, promptly after statements therefor are received,
and (ii) the Company shall cooperate in the defense of any such matter;
PROVIDED, HOWEVER, that the Company shall not be liable for any settlement
effected without its written consent (which consent shall not be unreasonably
withheld); and PROVIDED FURTHER that the Company shall not be obligated pursuant
to the obligations described in this paragraph to pay the fees and expenses of
more than one counsel (and one local counsel) for all Indemnified Parties in any
single action except to the extent that two or more of such Indemnified Parties
shall have conflicting interests in the outcome of such action. The provisions
described in this paragraph are intended to be for the benefit of, and will be
enforceable by, each indemnified party, his or her heirs and his or her
representatives.
COMMERCIALLY REASONABLE EFFORTS; NOTIFICATION. The Merger Agreement
provides that each of the parties agrees to use all commercially reasonable
efforts to take, or cause to be taken, all actions that are necessary, proper or
advisable to consummate and make effective the Offer, the Merger and the other
transactions contemplated by the Merger Agreement and the Stockholders
Agreement, including using all commercially reasonable efforts to accomplish the
following: (i) the taking of all commercially reasonable acts necessary to cause
the conditions to the Offer and the Merger to be satisfied, (ii) the obtaining
of all necessary actions or nonactions, waivers, consents, approvals, orders and
authorizations from Governmental Entities and the making of all necessary
registrations, declarations and filings, including the making of all filings
under the HSR Act and the European antitrust laws as promptly as reasonably
practicable, and in any event, within 15 business days after March 31, 2000, and
(iii) the obtaining of all necessary consents, approvals or waivers from third
parties. In connection with and without limiting the foregoing, the Company and
its Board of Directors shall, if any state takeover statute or similar statute
or regulation is or becomes applicable to the Merger Agreement, the
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Stockholders Agreement, the Offer, the Merger or any of the other transactions
contemplated thereby, use its commercially reasonable efforts to ensure that the
Offer, the Merger and the other transactions contemplated by the Merger
Agreement or the Stockholders Agreement may be consummated as promptly as
practicable on the terms contemplated by the Merger Agreement or the
Stockholders Agreement and otherwise to minimize the effect of such statute or
regulation on the Merger Agreement or the Stockholders Agreement, the Offer, the
Merger and the other transactions contemplated thereby. The Company and Parent
shall keep the other apprised of the status of matters relating to the
completion of the transactions contemplated thereby and work cooperatively in
connection with obtaining any such waivers, consents, approvals, orders and
authorizations, including, without limitation: (i) promptly notifying the other
of, and if in writing, furnishing the other with copies of (or, in the case of
material oral communications, advise the other orally of) any communications
from or with any Governmental Entity with respect to the Offer, the Merger or
any of the other transactions contemplated by the Merger Agreement,
(ii) permitting the other party to review and discuss in advance, and
considering in good faith the views of one another in connection with, any
proposed written (or material proposed oral) communication with any Governmental
Entity, (iii) not participating in any meeting with any Governmental Entity
unless it consults with the other party in advance and to the extent permitted
by such Governmental Entity gives the other party the opportunity to attend and
participate thereat, (iv) furnishing the other party with copies of all
correspondence, filings and communications (and memoranda setting forth the
substance thereof) between it and any Governmental Entity with respect to the
Merger Agreement, the Offer and the Merger, and (v) furnishing the other party
with such necessary information and reasonable assistance as such other party
may reasonably request in connection with its preparation of necessary filings
or submissions of information to any Governmental Entity. The Company and Parent
may, as each deems advisable and necessary, reasonably designate any
competitively sensitive material provided to the other under this paragraph as
"outside counsel only". Such materials and the information contained therein
shall be given only to the outside legal counsel of the recipient and will not
be disclosed by such outside counsel to employees, officers, or directors of the
recipient unless express permission is obtained in advance from the source of
the materials (the Company or Parent, as the case may be) or its legal counsel.
The Company shall give prompt notice to Parent, and Parent shall give prompt
notice to the Company, of (i) any representation or warranty made by it
contained in the Merger Agreement that is qualified as to materiality becoming
untrue or inaccurate in any respect or any such representation or warranty that
is not so qualified becoming untrue or inaccurate in any material respect or
(ii) the failure by it to comply with or satisfy in any material respect any
covenant, condition or agreement to be complied with or satisfied by it under
the Merger Agreement; PROVIDED that no such notification shall affect the
representations, warranties, covenants or agreements of the parties or the
conditions to the obligations of the parties under the Merger Agreement.
REPRESENTATIONS AND WARRANTIES. The Merger Agreement contains various
customary representations and warranties, including representations relating to
corporate existence and power; capitalization; corporate authorizations;
subsidiaries; Commission filings; absence of certain changes; contracts; absence
of undisclosed liabilities; government authorizations; litigation; compliance
with laws; employment agreements; labor matters; environmental matters; taxes;
intellectual property; accuracy of certain disclosures; and the opinion of the
Company's financial advisor.
Certain representations and warranties in the Merger Agreement made by the
Company and Parent are qualified as to "materiality" or "material adverse
effect". For purposes of the Merger Agreement and the Offer, the term "MATERIAL
ADVERSE EFFECT" means any state of facts, change, development, effect, event,
condition or occurrence that is materially adverse to the business, assets,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole, other than adverse changes resulting from
conditions, circumstances or changes affecting the beverage packing industry in
general and not the Company specifically.
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PROCEDURE FOR TERMINATION, AMENDMENT, EXTENSION OR WAIVER. The Merger
Agreement may be amended by the parties at any time, whether before or after the
Company Stockholder Approval or the Parent Shareholder Approval has been
obtained; PROVIDED that, after the purchase of Shares pursuant to the Offer, no
amendment shall be made which decreases the Offer Price and, after the Company
Stockholder Approval or the Parent Shareholder Approval has been obtained, there
shall be made no amendment that by law requires further approval by the
Company's stockholders or Parent's shareholders without the further approval of
the Company's stockholders or Parent's shareholders. The Merger Agreement may
not be amended except by an instrument in writing signed on behalf of each of
the parties thereto. Following the election or appointment of the Purchaser's
designees to the Company's Board of Directors as described above and prior to
the Effective Time, the affirmative vote of a majority of the Independent
Directors then in office shall be required by the Company to (i) amend or
terminate the Merger Agreement by the Company, (ii) exercise or waive any of the
Company's rights or remedies under the Merger Agreement or (iii) extend the time
for performance of Parent's and the Purchaser's respective obligations under the
Merger Agreement.
At any time prior to the Effective Time, the parties may (a) extend the time
for the performance of any of the obligations or other acts of the other
parties, (b) waive any inaccuracies in the representations and warranties
contained in the Merger Agreement or in any document delivered pursuant thereto
or (c) waive compliance with any of the agreements or conditions contained
therein; PROVIDED that after the Company Stockholder Approval or the Parent
Shareholder Approval has been obtained, there shall be made no waiver that by
law requires further approval by the Company's stockholders or Parent's
shareholders without the further approval of the Company's stockholders or
Parent's shareholders. Any agreement on the part of a party to any such
extension or waiver shall be valid only if set forth in an instrument in writing
signed on behalf of such party. The failure or delay by any party to the Merger
Agreement to assert any of its rights under the Merger Agreement or otherwise
shall not constitute a waiver of such rights nor shall any single or partial
exercise by any party to the Merger Agreement of any of its rights under the
Merger Agreement preclude any other or further exercise of such rights or any
other rights under the Merger Agreement.
The foregoing summary of the Merger Agreement is qualified in its entirety
by reference to the Merger Agreement, a copy of which is filed as
Exhibit (d)(1) to the Schedule TO. The Merger Agreement should be read in its
entirety for a more complete description of the matters summarized above.
THE STOCKHOLDERS AGREEMENT
Pursuant to the Stockholders Agreement, the Principal Stockholder has
agreed:
(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 Principal Stockholder shall vote (or cause to be
voted) all of the 25,000,000 Shares owned by the Principal Stockholder on
March 31, 2000, together with any other shares of capital stock or other voting
securities acquired after March 31, 2000, and during the term of the
Stockholders Agreement (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 Principal Stockholder shall vote (or cause to be
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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 the Stockholders Agreement, or change in any
manner the voting rights of the Shares (collectively, "FRUSTRATING
TRANSACTIONS").
(c)(1) The Principal 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
Principal Stockholder shall not withdraw any Subject Shares tendered pursuant to
the Offer prior to the termination of the Merger Agreement. The obligation of
the Principal Stockholder to tender and not withdraw the Subject Shares is
conditioned only upon lawful commencement of the Offer and otherwise is
unconditioned.
(2) Other than pursuant to the Stockholders Agreement, the Principal
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 Principal
Stockholder shall not, nor shall the Principal Stockholder permit any entity
under the Principal Stockholder's control to, deposit any Subject Shares in a
voting trust.
(d) The Principal Stockholder shall not, nor shall the Principal Stockholder
permit any of its subsidiaries to, nor shall it authorize or permit any
director, officer or employee of the Principal Stockholder or any of its
subsidiaries or any investment banker, attorney, accountant or other advisor or
representative of the Principal 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 Principal 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 the
Stockholders Agreement and the Merger Agreement. The Principal Stockholder shall
not commit or agree to take any action inconsistent with the transactions
contemplated by the Stockholders Agreement or the transactions contemplated by
the Merger Agreement.
(ii) The Principal Stockholder shall not, nor shall the Principal
Stockholder permit any of its subsidiaries to, nor shall it authorize or permit
any director, officer or employee of the Principal Stockholder or any of its
subsidiaries or any investment banker, attorney, accountant or other advisor or
representative of the Principal 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, the Stockholders Agreement, the
Offer, the Merger or any of the other transactions contemplated by the
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Merger Agreement or any of the transactions contemplated by the Stockholders
Agreement without prior consultation with Parent, except as may be required by
applicable law.
(f) The Principal Stockholder waives any appraisal rights with respect to,
or rights to dissent from, the Merger that the Principal Stockholder may have.
(g)(i)(A) If the Merger Agreement is terminated under circumstances in which
Parent is or may become entitled to receive the Termination Fee, as described
above, and an Alternative Transaction is consummated within six months after the
termination of the Stockholders Agreement, then the Principal Stockholder shall
pay to Parent, upon the transfer of any Original Shares (as defined below) in
connection with that Alternative Transaction, an amount equal to all of the cash
profit associated with the consummation of such Alternative Transaction that is
consummated within six months after the termination of the Stockholders
Agreement. 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 Principal Stockholder as a result of
the consummation of such Alternative Transaction, less (y) the product obtained
by multiplying $18.00 by the number of shares owned by the Principal Stockholder
on March 31, 2000 (the "ORIGINAL SHARES"), and sold by the Principal Stockholder
as part of that Alternative Transaction.
(ii) If the Effective Time occurs and Parent 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
Parent), the Principal Stockholder shall pay to Parent an amount equal to:
(x) the aggregate cash consideration payable in respect of the number of
Original Shares sold by the Principal Stockholder, less (y) the product obtained
by multiplying $18.00 by the number of Original Shares sold by the Principal
Stockholder.
As part of the Stockholders Agreement, Parent has also agreed to cause the
Company to enter into a termination agreement, in form and substance reasonably
acceptable to the Principal Stockholder, terminating the Beer Bottle Technology
Option Agreement between the Company and the Principal Stockholder 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, Parent
has also agreed to cause the Company to enter into an amendment, in form and
substance reasonably acceptable to the Principal Stockholder, amending the term
of the Shared Services Agreement between the Company and Pechiney
Packaging, Inc., dated July 28, 1999, to expire 12 months following the
Specified Date. The Principal Stockholder has waived any rights to receive a
termination fee in connection with the termination of the Shared Services
Agreement pursuant to the Stockholders Agreement.
Parent has also agreed as part of the Stockholders Agreement to (a) cause
the Company to enter into a termination and release agreement, in form and
substance reasonably acceptable to the Principal Stockholder, terminating the
Indemnification Agreement dated as of July 28, 1999, between the Company and the
Principal Stockholder and releasing the Principal 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 Principal Stockholder, to the Indemnification
Agreement dated as of July 28, 1999, between American National Can Company and
the Principal Stockholder deleting clause (ii) of Section 2.01(a) of that
Indemnification Agreement and releasing the Principal Stockholder from any and
all liability pursuant to such clause (ii).
With some qualifications, the Stockholders Agreement will terminate upon the
earliest of (i) the Effective Time, (ii) the later of six months following the
termination of the Merger Agreement and December 31, 2000, if the Merger
Agreement is terminated pursuant to the circumstances described above in
paragraphs (b)(i), (c) or (f) under "Termination of the Merger Agreement" in
circumstances
35
<PAGE>
in which Parent is or may become entitled to receive the Termination Fee and
(iii) the termination of the Merger Agreement if terminated for any other
reason.
The foregoing summary of the Stockholders Agreement is qualified in its
entirety by reference to the Stockholders Agreement, a copy of which is filed as
Exhibit (d)(2) to the Schedule TO. The Stockholders Agreement should be read in
its entirety for a more complete description of the matters summarized above.
THE CONFIDENTIALITY AGREEMENT
Pursuant to the Confidentiality Agreement, the Company and Parent agreed to
keep confidential certain information provided by the Company or its
representatives. The Confidentiality Agreement also contains customary
standstill provisions. The Merger Agreement provides that certain information
exchanged pursuant to the Merger Agreement will be subject to the
Confidentiality Agreement.
PLANS FOR THE COMPANY
If a majority of the outstanding Shares are purchased by the Purchaser
pursuant to the Offer, Parent may designate its representatives as a majority of
the Company's Board of Directors. Following completion of the Offer and the
Merger, Parent intends to integrate the Company's operations with those of
Parent under the direction of Parent's management. Parent's beverage can
businesses will be run as two operations, one in the U.S. and one in Europe.
Parent's principal reason for acquiring the Company is the strategic fit of the
Company's operations with Parent's operations. Parent intends to continue to
review the Company and its assets, corporate structure, dividend policy,
capitalization, operations, properties, policies, management and personnel and
to consider, subject to the terms of the Merger Agreement, what, if any, changes
would be desirable in light of the circumstances then existing, and reserves the
right to take such actions or effect such changes as it deems desirable. Such
changes could include changes in the Company's corporate structure, operational
headquarters, capitalization, management or dividend policy.
APPRAISAL RIGHTS
The holders of Shares do not have appraisal rights as a result of the Offer.
However, if the Merger is consummated, holders of Shares at the Effective Time
will have certain rights pursuant to the provisions of Section 262 of the DGCL
("SECTION 262") to dissent and demand appraisal of their Shares. Under
Section 262, dissenting stockholders who comply with the applicable statutory
procedures will be entitled to receive a judicial determination of the fair
value of their Shares (exclusive of any element of value arising from the
accomplishment or expectation of the Merger) and to receive payment of such fair
value in cash, together with a fair rate of interest, if any. Any such judicial
determination of the fair value of Shares could be based upon factors other
than, or in addition to, the price per Share to be paid in the Merger or the
market value of the Shares. The value so determined could be more or less than
the price per Share to be paid in the Merger.
The foregoing summary of Section 262 does not purport to be complete and is
qualified in its entirety by reference to Section 262. FAILURE TO FOLLOW THE
STEPS REQUIRED BY SECTION 262 OF THE DGCL FOR PERFECTING APPRAISAL RIGHTS MAY
RESULT IN THE LOSS OF SUCH RIGHTS.
GOING-PRIVATE TRANSACTIONS
The Commission has adopted Rule 13e-3 under the Exchange Act, which is
applicable to certain "going private" transactions. The Purchaser does not
believe that Rule 13e-3 will be applicable to the Merger unless the Merger is
consummated more than one year after the termination of the Offer. If
applicable, Rule 13e-3 requires, among other things, that certain financial
information concerning the
36
<PAGE>
fairness of the Merger and the consideration offered to minority stockholders in
the Merger be filed with the Commission and disclosed to stockholders prior to
the consummation of the Merger.
13. DIVIDENDS AND DISTRIBUTIONS
As discussed in Section 12, the Merger Agreement provides that from
March 31, 2000, to the Effective Time, without the prior approval of Parent, the
Company may not declare, set aside or pay any dividends on, or make any other
distributions (whether in cash, stock or property) in respect of, any of its
capital stock except for cash dividends by a direct or indirect wholly owned
subsidiary of the Company organized under the laws of any jurisdiction other
than any European subsidiary of the Company to its parent.
14. CERTAIN CONDITIONS OF THE OFFER
The Merger Agreement provides that the Purchaser will not be required to
accept for payment or, subject to any applicable rules and regulations of the
Commission, including Rule 14e-l(c) under the Exchange Act (relating to
Purchaser's obligation to pay for or return tendered Shares promptly after the
termination or withdrawal of the Offer), to pay for any Shares tendered pursuant
to the Offer unless (i) there shall have been validly tendered and not withdrawn
prior to the expiration of the Offer that number of Shares which would represent
at least a majority of the outstanding Shares (determined on a fully diluted
basis for all outstanding stock options and any other rights to acquire Shares
on the date of purchase) (the "FULLY DILUTED SHARES"), (ii) any requisite
waiting period under the HSR Act (and any extension thereof) applicable to the
purchase of Shares pursuant to the Offer or to the Merger shall have expired or
been terminated, (iii) any other requisite waiting periods under any other
applicable material competition, merger, control, antitrust or similar law or
regulation shall have been terminated or shall have expired, (iv) the European
Commission shall have declared, in terms, taken together with those in
clause (v)(B) below, that are not materially commercially unreasonable in the
aggregate, that the concentration is compatible with the common market pursuant
to Articles 6(1)(b) or Article 8(2) of the Regulation, (v) in the event that a
request under Article 9(2) of the Regulation has been made by one or more
European Union or EFTA states, (A) the European Commission shall have indicated
that it does not intend to refer the proposed acquisition, or any aspect
thereof, to a competent authority of such state in accordance with Article 9 of
the Regulation or (B) if such referral is made, the state(s) shall have resolved
their investigations, in terms, taken together with those in clause (iv) above,
that are not materially commercially unreasonable in the aggregate, or any
applicable waiting period(s) shall have expired, and (vi) the Parent Shareholder
Approval shall have been obtained. Furthermore, notwithstanding any other term
of the Offer or the Merger Agreement, the Purchaser will not be required to
accept for payment or, subject to any applicable rules and regulations of the
Commission, to pay for any Shares not yet accepted for payment or paid for, and,
subject to the Merger Agreement, may terminate or amend the Offer, with the
consent of the Company or if, immediately prior to the applicable Expiration
Date, any of the following conditions exists:
(a) there shall be pending or formally threatened any suit, action or
proceeding by any Governmental Entity, (i) challenging the acquisition by
Parent or the Purchaser of any shares of common stock of the Company,
seeking to restrain or prohibit consummation of the Offer or the Merger, or
seeking to place limitations on the ownership of Shares (or shares of common
stock of the Company following the Merger) by Parent or the Purchaser,
(ii) seeking to prohibit or limit the ownership or operation by the Company
or Parent and their respective subsidiaries of any material portion of the
business or assets of the Company or Parent and their respective
subsidiaries taken as a whole, or to compel the Company or Parent and their
respective subsidiaries to dispose of or hold separate any material portion
of the business or assets of the Company or Parent and their respective
subsidiaries taken as a whole, as a result of the Offer, the Merger or any
of the other transactions contemplated by the Merger Agreement or the
Stockholders Agreement, (iii) seeking to prohibit Parent or any of its
subsidiaries from effectively
37
<PAGE>
controlling in any material respect the business or operations of the
Company or Parent and subsidiaries taken as a whole, or (iv) which otherwise
is reasonably expected to have a material adverse effect; in each of
(i) through (iv) above, subject to the parties' obligations to use their
commercially reasonable efforts to avoid such an occurrence as set forth in
Section 12 hereof;
(b) any Legal Restraint that has the effect of preventing the purchase
of Shares pursuant to the Offer or the Merger shall be in effect; PROVIDED,
HOWEVER, that each of Parent, the Purchaser and the Company shall have used
commercially reasonable efforts to prevent the entry of any such injunction
or other order and to appeal as promptly as practicable any injunction or
other order that may be entered;
(c) except as set forth in the Company's disclosure schedule to the
Merger Agreement or in the documents that the Company had filed with the
Commission prior to March 31, 2000, since March 31, 2000, there shall have
been any state of facts, change, development, effect, event, condition or
occurrence that, individually or in the aggregate, constitutes or would
reasonably be expected to have, a material adverse effect;
(d) the representation and warranty of the Company with respect to its
capital structure and outstanding equity interests shall not be true and
correct in all material respects, or the other representations and
warranties of the Company contained in the Merger Agreement shall not be
true and correct, except for such failures to be true and correct that
(without giving effect to any limitation as to "materiality" or material
adverse effect set forth therein), individually and in the aggregate, would
not reasonably be expected to have a material adverse effect;
(e) the Company shall have failed to perform in any material respect any
material obligation required to be performed by it under the Merger
Agreement at or prior to the Specified Date;
(f) Parent shall not have obtained all consents, approvals,
authorizations, qualifications and orders of all Governmental Entities
legally required in connection with the Merger Agreement and the
transactions contemplated by the Merger Agreement other than any such
consents, approvals, authorizations, qualifications and orders, the failure
of which to obtain, individually and in the aggregate, would not reasonably
be expected to have a material adverse effect; or
(g) the Merger Agreement shall have been terminated in accordance with
its terms;
which, in the reasonable judgment of the Purchaser or Parent in any such case,
and regardless of the circumstances giving rise to any such condition (including
any action or inaction by Parent or any of its affiliates), makes it inadvisable
to proceed with such acceptance for payment or payment.
The foregoing conditions are for the sole benefit of the Purchaser and
Parent and may be asserted by the Purchaser or Parent regardless of the
circumstances giving rise to such condition or, other than the Minimum
Condition, may be waived by the Purchaser or Parent in whole or in part at any
time and from time to time in their reasonable discretion. The failure by
Parent, the Purchaser or any other affiliate of Parent at any time to exercise
any of the foregoing rights shall not be deemed a waiver of any such right; the
waiver of any such right with respect to particular facts and circumstances
shall not be deemed a waiver with respect to any other facts and circumstances
and each such right shall be deemed an ongoing right that may be asserted at any
time and from time to time.
15. CERTAIN LEGAL MATTERS
Except as described in this Section 15, based on a review of publicly
available filings made by the Company with the Commission and other publicly
available information concerning the Company and discussions of representatives
of Parent with representatives of the Company, none of the Purchaser, Parent or
the Company is aware of any license or regulatory permit that appears to be
material to the business of the Company and its Subsidiaries, taken as a whole,
that might be adversely affected by the Purchaser's acquisition of Shares (and
the indirect acquisition of the stock of the Company's
38
<PAGE>
subsidiaries) as contemplated herein or of any approval or other action by any
Governmental Entity that would be required or desirable for the acquisition or
ownership of Shares by the Purchaser as contemplated herein. Should any such
approval or other action be required or desirable, Parent and the Purchaser
currently contemplate that such approval or other action will be sought, except
as described below under "State Takeover Laws". While (except as otherwise
expressly described in this Section 15) the Purchaser does not presently intend
to delay the acceptance for payment of or payment for Shares tendered pursuant
to the Offer pending the outcome of any such matter, there can be no assurance
that any such approval or other action, if needed, would be obtained or would be
obtained without substantial conditions or that failure to obtain any such
approval or other action might not result in consequences adverse to the
Company's business or that certain parts of the Company's business might not
have to be disposed of if such approvals were not obtained or such other actions
were not taken or in order to obtain any such approval or other action. If
certain types of adverse action are taken with respect to the matters discussed
below, the Purchaser could, subject to the terms and conditions of the Merger
Agreement, decline to accept for payment or pay for any Shares tendered. See
Section 14 for a description of certain conditions to the Offer.
STATE TAKEOVER LAWS. A number of states throughout the United States have
enacted takeover statutes that purport, in varying degrees, to be applicable to
attempts to acquire securities of corporations that are incorporated or have
assets, stockholders, executive offices or places of business in such states. In
EDGAR V. MITE CORP., the Supreme Court of the United States held that the
Illinois Business Takeover Act, which involved state securities laws that made
the takeover of certain corporations more difficult, imposed a substantial
burden on interstate commerce and therefore was unconstitutional. In CTS CORP.
V. DYNAMICS CORP. OF AMERICA, however, the Supreme Court of the United States
held that a state may, as a matter of corporate law and, in particular, those
laws concerning corporate governance, constitutionally disqualify a potential
acquiror from voting on the affairs of a target corporation without prior
approval of the remaining stockholders, provided that such laws were applicable
only under certain conditions. Subsequently, a number of U.S. federal courts
ruled that various state takeover statutes were unconstitutional insofar as they
apply to corporations incorporated outside the state of enactment.
Section 203 of the DGCL, in general, prohibits a Delaware corporation such
as the Company from engaging in a "business combination" (defined as a variety
of transactions, including mergers) with an "interested stockholder" (defined
generally as a person that is the beneficial owner of 15% or more of a
corporation's outstanding voting stock) for a period of three years following
the time that such person became an interested stockholder unless, among other
things, prior to the time such person became an interested stockholder, the
board of directors of the corporation approved either the business combination
or the transaction that resulted in the stockholder becoming an interested
stockholder. The Company's Board of Directors has approved the Merger Agreement,
the Stockholders Agreement, the Offer, the Merger and the other transactions
contemplated by the Merger Agreement and the Stockholders Agreement for purposes
of Section 203 of the DGCL. Therefore, Section 203 of the DGCL is inapplicable
to the Offer and the Merger.
Based on information supplied by the Company, the Purchaser does not believe
that any other state takeover statutes or similar laws purport to apply to the
Offer or the Merger. Neither the Purchaser nor Parent has currently complied
with any state takeover statute or regulation. The Purchaser reserves the right
to challenge the applicability or validity of any state law purportedly
applicable to the Offer or the Merger and nothing in this Offer to Purchase or
any action taken in connection with the Offer or the Merger is intended as a
waiver of such right. If it is asserted that any state takeover statute is
applicable to the Offer or the Merger and an appropriate court does not
determine that it is inapplicable or invalid as applied to the Offer or the
Merger, the Purchaser might be required to file certain information with, or to
receive approvals from, the relevant state authorities, and the Purchaser might
be unable to accept for payment or pay for Shares tendered pursuant to the
39
<PAGE>
Offer, or be delayed in consummating the Offer or the Merger. In such case, the
Purchaser may not be obligated to accept payment or pay for any Shares tendered
pursuant to the Offer. See Section 14.
ANTITRUST
UNITED STATES ANTITRUST LAW. Under the provisions of the HSR Act applicable
to the Offer, the acquisition of Shares under the Offer may be consummated after
the expiration of a 15-calendar day waiting period commenced by the filing by
Parent of a Notification and Report Form with respect to the Offer, unless
Parent receives a request for additional information or documentary material
from the Antitrust Division of the Department of Justice or the Federal Trade
Commission (the "FTC") or unless early termination of the waiting period is
granted. Parent is in the process of preparing such filing. If, within the
initial 15-day waiting period, either the Antitrust Division or the FTC requests
additional information from Parent concerning the Offer, the waiting period will
be extended and would expire at 11:59 p.m., New York City time, on the tenth
calendar day after the date of substantial compliance by Parent with such
request. Only one extension of the waiting period pursuant to a request for
additional information is authorized by the HSR Act. Thereafter, such waiting
period may be extended only by court order or with the consent of Parent. In
practice, complying with a request for additional information or material can
take a significant amount of time. In addition, if the Antitrust Division or the
FTC raises substantive issues in connection with a proposed transaction, the
parties frequently engage in negotiations with the relevant governmental agency
concerning possible means of addressing those issues and may agree to delay
consummation of the transaction while such negotiations continue. Expiration or
termination of the applicable waiting period under the HSR Act is a condition to
the Purchaser's obligation to accept for payment and pay for Shares tendered
pursuant to the Offer.
The Merger will not require an additional filing under the HSR Act if the
Purchaser owns 50% or more of the outstanding Shares at the time of the Merger
or if the Merger occurs within one year after the HSR Act waiting period
applicable to the Offer expires or is terminated.
The Antitrust Division and the FTC frequently scrutinize the legality under
the antitrust laws of transactions such as the Purchaser's proposed acquisition
of the Company. At any time before or after the Purchaser's acquisition of
Shares pursuant to the Offer, the Antitrust Division or the FTC could take such
action under the antitrust laws as it deems necessary or desirable in the public
interest, including seeking to enjoin the purchase of Shares pursuant to the
Offer or the consummation of the Merger or seeking the divestiture of Shares
acquired by the Purchaser or the divestiture of substantial assets of the
Company or its subsidiaries or Parent or its subsidiaries. Private parties may
also bring legal action under the antitrust laws under certain circumstances.
There can be no assurance that a challenge to the Offer on antitrust grounds
will not be made or, if such a challenge is made, of the result thereof.
EUROPEAN ANTITRUST LAWS. Parent and the Company each conduct substantial
operations in the European Economic Area. Counsel Regulation (EEC) 4064/89, as
amended, and Article 57 of the European Economic Area Agreement require that
concentrations with a "Community or EFTA dimension" be notified in prescribed
form to the Commission of the European Communities for review and approval. In
these cases, the European Commission, as opposed to the individual countries
within the European Economic Area, will, with certain exceptions, have exclusive
jurisdiction to review the concentration. A business concentration having a
"Community dimension" must be notified to the European Commission within a week
of the earlier of the entering into of an agreement or the announcement of a
public bid, unless an extension is granted, which Parent and the Company have
received. Generally, it may not be implemented until it has been declared
compatible with the common market by decision under Article 6(1)(b) or
Article 8(2) of the EC Merger Regulation.
The European Commission has one month from the receipt of a complete
notification in which to determine whether the operation notified has a
Community dimension, I.E., if the parties exceed certain
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specified revenue thresholds, and, if a Community dimension exists, whether the
case presents "serious doubts" about its compatibility with the common market.
This one-month period may be extended to six weeks if the parties submit a
proposal for divestiture or undertaking in order to get a positive decision from
the European Commission.
If the proposed transaction does not have a Community dimension or does not
qualify as a concentration, the European Commission must issue a reasoned
decision to this effect. Concentrations which do not satisfy the Community
dimension thresholds are subject to national merger control in the EC member
states, and (subject to limited exceptions) the European Commission will in
general have no further jurisdiction over the case.
If the European Commission finds that the notified proposed acquisition
constitutes a concentration and does have a Community dimension but does not
present "serious doubts", the European Commission must issue a reasoned decision
to the effect that the concentration is compatible with the common market.
If the European Commission finds that the notified transaction presents
serious doubts, I.E., that it threatens to lead to the creation or strengthening
of a dominant position that would significantly impede competition within the
common market or in a substantial part of it, then the European Commission must
publish a reasoned decision to this effect and initiate proceedings for a
further in-depth investigation into the case.
If the European Commission fails to take any decision within one month (or
the extended six-month period, as the case may be), the operation will
automatically be deemed to have been declared compatible with the common market.
If the European Commission initiates proceedings, it has a further four
months in which to reach a final decision, at the end of which it must either
prohibit the transaction or approve it (either unconditionally or subject to
conditions). If the European Commission does not reach a final decision within
this four-month period, the transaction will automatically be deemed to be
compatible.
A member state of the European Union or EFTA may, normally within three
weeks of notifying the proposed acquisition to the European Commission, apply to
the European Commission to have a concentration referred back to the competent
authority of that state if the concentration (a) threatens to create or
strengthen a dominant position which would significantly impede competition in a
market within that member state, which is a distinct market, or (b) affects
competition in a market within that member state, which is a distinct market and
which does not constitute a substantial part of the common market. If such an
application is made, the initial period for examining the notification is
extended to six weeks. If the European Commission decides to refer the proposed
acquisition to a member state, the legal provisions within that state govern the
proceeding.
Parent and the Company have determined that the Offer and the Merger have a
"Community dimension", and thus intend to file promptly notification in the
prescribed form with the European Commission. Parent does not, and the Company
has advised Parent that it does not, believe that the Offer and Merger are
incompatible with the European common market. However, there can be no assurance
that the European Commission will allow the consummation of the Offer and
Merger, or that the necessary approval will be granted without conditions.
OTHER FOREIGN LAWS. The Company and Parent and certain of their respective
subsidiaries conduct business in several foreign countries where regulatory
filings or approvals may be required or desirable in connection with the
consummation of the Offer. Certain of such filings or approvals, if required or
desirable, may not be made or obtained prior to the expiration of the Offer. The
Purchaser and the Company are analyzing the applicability of any such laws and
currently intend to take such action as may be required or desirable. If any
foreign Governmental Entity takes any action prior to the
41
<PAGE>
completion of the Offer that might have certain adverse effects, the Purchaser
will not be obligated to accept for payment or pay for any Shares tendered. See
Section 14.
16. FEES AND EXPENSES
Salomon Smith Barney is acting as Dealer Manager for the Offer and is
providing certain financial advisory services to Parent and the Purchaser in
connection with the Offer, for which services Salomon Smith Barney will receive
customary compensation. Parent also has agreed to reimburse Salomon Smith Barney
for reasonable travel and other out-of-pocket expenses, including reasonable
fees and expenses of its legal counsel, and to indemnify Salomon Smith Barney
and certain related parties against certain liabilities, including liabilities
under the federal securities laws, arising out of its engagement. In the
ordinary course of business, Salomon Smith Barney and its affiliates may
actively trade or hold the securities of Parent and the Company for their own
account and for the accounts of customers and, accordingly, may at any time hold
a long or short position in such securities.
Parent and the Purchaser have retained D. F. King & Co., Inc. to act as the
Information Agent and Citibank, N.A. to serve as the Depositary in connection
with the Offer. The Information Agent and the Depositary each will receive
reasonable and customary compensation for their services, be reimbursed for
certain reasonable out-of-pocket expenses and be indemnified against certain
liabilities and expenses in connection therewith, including certain liabilities
and expenses under the U.S. federal securities laws.
Neither the Purchaser nor Parent will pay any fees or commissions to any
broker or dealer or other person (other than the Dealer Manager) in connection
with the solicitation of tenders of Shares pursuant to the Offer. Brokers,
dealers, banks, trust companies and other members will be reimbursed by the
Purchaser upon request for customary mailing and handling expenses incurred by
them in forwarding material to their customers.
17. MISCELLANEOUS
The Offer is not being made to (nor will tenders be accepted from or on
behalf of) holders of Shares in any jurisdiction in which the making of the
Offer or the acceptance thereof would not be in compliance with the laws of such
jurisdiction. Neither the Purchaser nor Parent is aware of any jurisdiction in
which the making of the Offer or the acceptance thereof would not be in
compliance with the laws of such jurisdiction. To the extent the Purchaser or
Parent becomes aware of any state law that would limit the class of offerees in
the Offer, the Purchaser will amend the Offer and, depending on the timing of
such amendment, if any, will extend the Offer to provide adequate dissemination
of such information to holders of Shares prior to the expiration of the Offer.
In any jurisdiction the securities, blue sky or other laws of which require the
Offer to be made by a licensed broker or dealer, the Offer is being made on
behalf of the Purchaser by the Dealer Manager or one or more registered brokers
or dealers licensed under the laws of such jurisdiction.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION ON BEHALF OF THE PURCHASER OR PARENT NOT CONTAINED HEREIN OR IN
THE LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED.
Parent and the Purchaser have filed with the Commission the Schedule TO
pursuant to Rule 14d-3 under the Exchange Act, together with exhibits,
furnishing certain additional information with respect to the Offer, and may
file amendments thereto. In addition, the Company has filed the Schedule 14D-9
pursuant to Rule 14d-9 under the Exchange Act, together with exhibits, setting
forth its recommendation with respect to the Offer and the reasons for such
recommendation and furnishing certain additional related information. Such
Schedules and any amendments thereto, including exhibits, should be available
for inspection and copies should be obtainable in the manner set forth in
Section 8 (except that such material will not be available at the regional
offices of the Commission).
REXAM ACQUISITION SUBSIDIARY INC.
April 10, 2000
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SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS OF
PARENT AND THE PURCHASER
1. DIRECTORS AND EXECUTIVE OFFICERS OF PARENT. The name, citizenship,
business address, present principal occupation or employment and material
occupations, positions, offices or employment for the past five years of each of
the directors and executive officers of Parent are set forth below. The business
address of each such director or executive officer is Rexam PLC, 4 Millbank,
London, SW1P 3XR, United Kingdom.
<TABLE>
<CAPTION>
NAME, POSITION WITH PARENT AND PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
CITIZENSHIP MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ------------------------------ --------------------------------------------------
<S> <C>
Rolf L. Borjesson............. Director and Chief Executive of Parent since 1996.
Director and Chief Executive Director of Midway Holding AB and Sodra Regionen
Swedish Svenska Handelsbanken AB since 1995. Director of
Invensys plc since 1998. Director and Chief
Executive Officer of PLM AB from 1990 to 1996.
Yves E. Dominioni............. Director of Parent since 1997. President Directeur
Director General of Sofab SA since 1995.
French
Lars G. Emilson............... Director of Parent since 1999. Director of PLM AB
Director since 1999 and Chief Executive Officer of PLM AB
Swedish since 1999. Managing Director, PLM Beverage Can
Division from 1992 to 1999.
David W. Gibson............... Company Secretary of Parent since 1996. Company
Company Secretary Solicitor of Parent from 1989 to 1996.
British
Robert W. Gluskin............. Director of Parent since 1997. President, Rexam
Director Medical Packaging Inc. since 1993.
American
Alain Gomez................... Director of Parent since 1997. Chairman and Chief
Non-executive Director Executive Officer of Facom SA since 1999.
French Non-executive Chairman of Sante Luxembourg since
1998. Director of Fimalac SA since 1996. Chairman
and CEO of Thomson CSF from 1982 to 1995.
Michael J. Hartnall........... Finance Director of Parent since 1987. Director of
Finance Director PLM AB since 1999.
British Director of Quoteplan Limited since 1992.
Jeremy Lancaster.............. Chairman of Parent since 1996. Chairman of
Chairman Hepworth PLC since 1996. Non-executive Director of
British TPIC (Birmingham) Limited since 1996. Prior to
1996, Chairman and Chief Executive of Wolseley
plc.
</TABLE>
S-1
<PAGE>
<TABLE>
<CAPTION>
NAME, POSITION WITH PARENT AND PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
CITIZENSHIP MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ------------------------------ --------------------------------------------------
<S> <C>
David L. Tucker............... Non-executive Director of Parent since 1997.
Non-executive Director Director of Trustees of the Mineworkers' Pension
British Scheme Limited since 2000. Director of Maybourne
Properties Limited since 1997. Non-executive
Director of Wolseley plc since 1990.
John A. Warren................ Deputy Chairman of Parent since 1999. Non-
Deputy Chairman executive Director of Parent from 1994 to 1999.
British Group Finance Director of United Biscuits
(Holdings) plc since 1990.
</TABLE>
2. DIRECTORS AND EXECUTIVE OFFICERS OF THE PURCHASER. The name,
citizenship, business address, present principal occupation or employment and
material occupations, positions, offices or employment for the past five years
of each of the directors and executive officers of the Purchaser are set forth
below. The business address of each such director and executive officer is Rexam
Acquisition Subsidiary Inc., in care of Rexam Inc., 4201 Congress Street, Suite
340, Charlotte, NC 28209. All such directors and executive officers listed below
are citizens of the United States.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME AND POSITION WITH PURCHASER MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- -------------------------------- --------------------------------------------------
<S> <C>
Frank C. Brown....................... President of Rexam Inc. since 1996. General
Director, President and Secretary Counsel and Secretary of Rexam Inc. since 1992.
Ronald H. Glasshoff.................. Vice President Finance of Rexam Inc. since 1991.
Director and Vice President
Lisa R. Larmore...................... Vice President, Tax of Rexam Inc. since 1996. Tax
Vice President, Tax Director of Rexam Inc. from 1991 to 1996.
Charlotte J. Vincini................. Director, Corporate Benefits of Rexam Inc. since
Director 1995.
</TABLE>
S-2
<PAGE>
Manually signed facsimile copies of the Letter of Transmittal will be
accepted. The Letter of Transmittal, certificates for Shares and any other
required documents should be sent or delivered by each stockholder of the
Company or such stockholder's broker, dealer, bank, trust company or other
nominee to the Depositary at one of its addresses set forth below.
THE DEPOSITARY FOR THE OFFER IS
CITIBANK, N.A.
<TABLE>
<S> <C> <C>
BY MAIL: BY HAND: BY COURIER:
Citibank, N.A. Citibank, N.A. 915 Broadway, 5th Floor
P.O. Box 685 Corporate Trust Window New York, NY 10010
Old Chelsea Station 111 Wall Street, 5th Floor
New York, NY 10113 New York, NY 10043
BY FACSIMILE TRANSMISSION:
(For Eligible Institutions
only)
(212) 505-2248
CONFIRM FACSIMILE
TRANSMISSION:
By telephone only
(800) 270-0808
</TABLE>
Questions and requests for assistance may be directed to the Information
Agent or the Dealer Manager at their respective telephone numbers and locations
listed below. Additional copies of this Offer to Purchase, the Letter of
Transmittal, the Notice of Guaranteed Delivery or any other tender offer
materials may be obtained from the Information Agent. You may also contact your
broker, dealer, bank, trust company or other nominee for assistance concerning
the Offer.
THE INFORMATION AGENT FOR THE OFFER IS:
D. F. KING & CO., INC.
77 WATER STREET
NEW YORK, NEW YORK 10005
BANKS AND BROKERS CALL COLLECT: (212) 269-5550
ALL OTHERS CALL TOLL FREE: (800) 290-6428
THE DEALER MANAGER FOR THE OFFER IS:
Salomon Smith Barney
388 GREENWICH STREET
NEW YORK, NEW YORK 10013
(877) 820-8015
<PAGE>
EXHIBIT (a)(1)(B)
LETTER OF TRANSMITTAL
TO TENDER
SHARES OF COMMON STOCK
OF
AMERICAN NATIONAL CAN GROUP, INC.
PURSUANT TO THE OFFER TO PURCHASE
DATED APRIL 10, 2000
BY
REXAM ACQUISITION SUBSIDIARY INC.,
A WHOLLY OWNED INDIRECT SUBSIDIARY OF
REXAM PLC
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON FRIDAY MAY 5, 2000, UNLESS THE OFFER IS EXTENDED.
THE DEPOSITARY FOR THE OFFER IS
CITIBANK, N.A.
<TABLE>
<S> <C> <C>
BY MAIL: BY HAND: BY COURIER:
Citibank, N.A. Citibank, N.A. 915 Broadway, 5th Floor
P.O. Box 685 Corporate Trust Window New York, NY 10010
Old Chelsea Station 111 Wall Street, 5th Floor
New York, NY 10113 New York, NY 10043
BY FACSIMILE TRANSMISSION:
(For Eligible Institutions only)
(212) 505-2248
CONFIRM FACSIMILE TRANSMISSION:
By telephone only
(800) 270-0808
</TABLE>
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS, OR TRANSMISSION OF
INSTRUCTIONS VIA A FACSIMILE NUMBER, OTHER THAN AS SET FORTH ABOVE, DOES NOT
CONSTITUTE A VALID DELIVERY.
<PAGE>
THE INSTRUCTIONS SET FORTH IN THIS LETTER OF TRANSMITTAL SHOULD BE READ
CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
DESCRIPTION OF SHARES TENDERED
- ---------------------------------------------------------------------------------------------------------------------------------
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S) SHARES TENDERED
(PLEASE FILL IN, IF BLANK, EXACTLY AS NAME(S) APPEAR(S) ON SHARE CERTIFICATE(S)) (ATTACH ADDITIONAL SIGNED LIST IF NECESSARY)
- ---------------------------------------------------------------------------------------------------------------------------------
TOTAL NUMBER OF
SHARES
SHARE REPRESENTED BY NUMBER OF
CERTIFICATE SHARE SHARES
NUMBER(S)* CERTIFICATE(S)* TENDERED**
<S> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------------------
----------------------------------------
----------------------------------------
----------------------------------------
----------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
TOTAL SHARES
- ---------------------------------------------------------------------------------------------------------------------------------
* Need not be completed if transfer is made by book-entry transfer.
** Unless otherwise indicated, it will be assumed that all Shares described above are being tendered. See Instruction 4. IF ANY
OF THE CERTIFICATES REPRESENTING SHARES THAT YOU OWN HAVE BEEN LOST OR DESTROYED SEE INSTRUCTION 11.
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
2
<PAGE>
This Letter of Transmittal is to be used either if certificates for Shares
(as defined below) are to be forwarded herewith or, unless an Agent's Message
(as defined in Section 2 of the Offer to Purchase (as defined below)) is
utilized, if delivery of Shares is to be made by book-entry transfer to an
account maintained by the Depositary at the Book-Entry Transfer Facility (as
defined in and pursuant to the procedures set forth in Section 2 of the Offer to
Purchase). Stockholders whose certificates for Shares are not immediately
available or who cannot deliver either the certificates for, or a Book-Entry
Confirmation (as defined in the Offer to Purchase) with respect to, their Shares
and all other documents required hereby to the Depositary prior to the
Expiration Date (as defined in the Offer to Purchase) must tender their Shares
in accordance with the guaranteed delivery procedures set forth in Section 2 of
the Offer to Purchase. See Instruction 2. Delivery of documents to a Book-Entry
Transfer Facility does not constitute delivery to the Depositary.
/ / CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER
MADE TO AN ACCOUNT MAINTAINED BY THE DEPOSITARY WITH THE BOOK-ENTRY TRANSFER
FACILITY AND COMPLETE THE FOLLOWING (ONLY PARTICIPANTS IN THE BOOK-ENTRY
TRANSFER FACILITY MAY DELIVER SHARES BY BOOK-ENTRY TRANSFER):
Name of Tendering Institution ______________________________________________
Account Number _____________________________________________________________
Transaction Code Number ____________________________________________________
/ / CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY, ENCLOSE A PHOTOCOPY
OF SUCH NOTICE OF GUARANTEED DELIVERY AND COMPLETE THE FOLLOWING:
Name(s) of Registered Owner(s) _____________________________________________
Date of Execution of Notice of Guaranteed Delivery _________________________
Name of Institution that Guaranteed Delivery _______________________________
If delivered by book-entry transfer check box: / /
3
<PAGE>
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
The undersigned hereby tenders to Rexam Acquisition Subsidiary Inc., a
Delaware corporation (the "Purchaser") and a wholly owned indirect subsidiary of
Rexam PLC, a public limited company organized under the laws of England and
Wales ("Parent"), the above-described shares of Common Stock, par value $0.01
per share (the "Shares"), of American National Can Group, Inc., a Delaware
corporation (the "Company"), upon the terms and subject to the conditions set
forth in the Purchaser's Offer to Purchase dated April 10, 2000 (the "Offer to
Purchase"), and this Letter of Transmittal (which, together with any amendments
or supplements thereto or hereto, collectively constitute the "Offer"), receipt
of which is hereby acknowledged.
Upon the terms of the Offer, subject to, and effective upon, acceptance for
payment of, and payment for, the Shares tendered herewith in accordance with the
terms of the Offer, the undersigned hereby sells, assigns and transfers to, or
upon the order of, the Purchaser all right, title and interest in and to all the
Shares that are being tendered hereby (and any and all other Shares or other
securities or rights issued in respect thereof on or after April 10, 2000) and
irrevocably constitutes and appoints Citibank, N.A. (the "Depositary"), the true
and lawful agent and attorney-in-fact of the undersigned, with full power of
substitution (such power of attorney being deemed to be an irrevocable power
coupled with an interest), to the full extent of the undersigned's rights with
respect to such Shares (and any such other Shares or securities or rights)
(a) to deliver certificates for such Shares (and any such other Shares or
securities or rights) or transfer ownership of such Shares (and any such other
Shares or securities or rights) on the account books maintained by the
Book-Entry Transfer Facility together, in any such case, with all accompanying
evidences of transfer and authenticity to, or upon the order of, the Purchaser,
(b) to present such Shares (and any such other Shares or securities or rights)
for transfer on the Company's books and (c) to receive all benefits and
otherwise exercise all rights of beneficial ownership of such Shares (and any
such other Shares or securities or rights), all in accordance with the terms of
the Offer.
The undersigned hereby represents and warrants that the undersigned has full
power and authority to tender, sell, assign and transfer the tendered Shares
(and any and all other Shares or other securities or rights issued or issuable
in respect of such Shares on or after April 10, 2000) and, when the same are
accepted for payment by the Purchaser, the Purchaser will acquire good title
thereto, free and clear of all liens, restrictions, claims and encumbrances and
the same will not be subject to any adverse claim. The undersigned will, upon
request, execute any additional documents deemed by the Depositary or the
Purchaser to be necessary or desirable to complete the sale, assignment and
transfer of the tendered Shares (and any such other Shares or other securities
or rights).
All authority conferred or agreed to be conferred pursuant to this Letter of
Transmittal shall be binding upon the successors, assigns, heirs, executors,
administrators and legal representatives of the undersigned and shall not be
affected by, and shall survive, the death or incapacity of the undersigned.
Except as stated in the Offer to Purchase, this tender is irrevocable.
The undersigned hereby irrevocably appoints Frank C. Brown, Charlotte
J. Vincini and Ronald Glasshoff, and each of them, and any other designees of
the Purchaser, the attorneys-in-fact and proxies of the undersigned, each with
full power of substitution, to vote at any annual, special or adjourned meeting
of the Company's stockholders or otherwise in such manner as each such
attorney-in-fact and proxy or his or her substitute shall in his or her sole
discretion deem proper with respect to, to execute any written consent
concerning any matter as each such attorney-in-fact and proxy or his or her
substitute shall in his or her sole discretion deem proper with respect to, and
to otherwise act as each such attorney-in-fact and proxy or his or her
substitute shall in his sole discretion deem proper with respect to, the Shares
tendered hereby that have been accepted for payment by the Purchaser prior to
the time any such action is taken and with respect to which the undersigned is
entitled to vote (and any and all other Shares or other securities or rights
issued or issuable in respect of such Shares on or after April 10, 2000). This
appointment is effective when, and only to the extent that, the Purchaser
accepts for payment such Shares as provided in the Offer to Purchase. This power
of attorney and proxy are irrevocable and are granted in consideration of the
acceptance for
4
<PAGE>
payment of such Shares in accordance with the terms of the Offer. Upon such
acceptance for payment, all prior powers of attorney, proxies and consents given
by the undersigned with respect to such Shares (and any such other Shares or
securities or rights) will, without further action, be revoked and no subsequent
powers of attorney, proxies, consents or revocations may be given (and, if
given, will not be deemed effective) by the undersigned.
The undersigned understands that the valid tender of Shares pursuant to any
of the procedures described in Section 2 of the Offer to Purchase and in the
Instructions hereto will constitute a binding agreement between the undersigned
and the Purchaser upon the terms and subject to the conditions of the Offer.
Unless otherwise indicated herein under "Special Payment Instructions",
please issue the check for the purchase price and/or return any certificates for
Shares not tendered or accepted for payment in the name(s) of the registered
holder(s) appearing under "Description of Shares Tendered". Similarly, unless
otherwise indicated under "Special Delivery Instructions", please mail the check
for the purchase price and/or return any certificates for Shares not tendered or
accepted for payment (and accompanying documents, as appropriate) to the
address(es) of the registered holder(s) appearing under "Description of Shares
Tendered". In the event that both the "Special Delivery Instructions" and the
"Special Payment Instructions" are completed, please issue the check for the
purchase price and/or return any certificates for Shares not tendered or
accepted for payment (and any accompanying documents, as appropriate) in the
name of, and deliver such check and/or return such certificates (and any
accompanying documents, as appropriate) to, the person or persons so indicated.
Please credit any Shares tendered herewith by book-entry transfer that are not
accepted for payment by crediting the account at the Book-Entry Transfer
Facility designated above. The undersigned recognizes that the Purchaser has no
obligation pursuant to the "Special Payment Instructions" to transfer any Shares
from the name of the registered holder thereof if the Purchaser does not accept
for payment any of the Shares so tendered.
5
<PAGE>
/ / CHECK HERE IF ANY OF THE CERTIFICATES REPRESENTING SHARES THAT YOU OWN HAVE
BEEN LOST OR DESTROYED AND SEE INSTRUCTION 11.
NUMBER, CLASS AND SERIES OF SHARES REPRESENTED BY THE LOST OR DESTROYED
CERTIFICATES: __________________________________________________________________
- ------------------------------------------------
SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if certificates for Shares not tendered or not
accepted for payment and/or the check for the purchase price of Shares
accepted for payment are to be issued in the name of someone other than the
undersigned.
Issue / / Check / / Certificate(s) to:
Name _______________________________________________________________________
(PLEASE PRINT)
Address ____________________________________________________________________
____________________________________________________________________________
(INCLUDE ZIP CODE)
____________________________________________________________________________
(EMPLOYER IDENTIFICATION OR SOCIAL SECURITY NUMBER)
------------------------------------------------------------------
------------------------------------------------------------------SPECIAL
DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if certificates for Shares not tendered or not
accepted for payment and/or the check for the purchase price of Shares
accepted for payment is to be sent to someone other than the undersigned or
to the undersigned at an address other than that above.
Mail / / Check / / Certificate(s) to:
Name _______________________________________________________________________
(PLEASE PRINT)
Address ____________________________________________________________________
____________________________________________________________________________
(INCLUDE ZIP CODE)
____________________________________________________________________________
(EMPLOYER IDENTIFICATION OR SOCIAL SECURITY NUMBER)
------------------------------------------------------------------
6
<PAGE>
- --------------------------------------------------------------------------------
SIGN HERE
(ALSO COMPLETE SUBSTITUTE FORM W-9 BELOW)
____________________________________________________________________________
.
,
____________________________________________________________________________
.
,
(SIGNATURE(S) OF STOCKHOLDER(S))
Dated: __________________ 2000
(Must be signed by registered holder(s) as name(s) appear(s) on the
certificate(s) for the Shares or on a security position listing or by
person(s) authorized to become registered holder(s) by certificates and
documents transmitted herewith. If signature is by trustees, executors,
administrators, guardians, attorneys-in-fact, officers of corporations or
others acting in a fiduciary or representative capacity, please provide the
following information and see Instruction 5.)
Name(s) ____________________________________________________________________
____________________________________________________________________________
(PLEASE PRINT)
Capacity (full title) ______________________________________________________
Address ____________________________________________________________________
____________________________________________________________________________
(INCLUDE ZIP CODE)
Daytime Area Code and Telephone Number _____________________________________
Taxpayer Identification or
Social Security Number _____________________________________________________
(SEE SUBSTITUTE FORM W-9)
GUARANTEE OF SIGNATURE(S)
(IF REQUIRED--SEE INSTRUCTIONS 1 AND 5)
Authorized
,
Signature __________________________________________________________________
Name _______________________________________________________________________
(PLEASE PRINT)
Title ______________________________________________________________________
Name of Firm _______________________________________________________________
Address ____________________________________________________________________
(INCLUDE ZIP CODE)
Daytime Area Code and Telephone Number _____________________________________
Dated: ___________________ 2000
----------------------------------------------------------------------------
7
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. GUARANTEE OF SIGNATURES. No signature guarantee is required on this
Letter of Transmittal (a) if this Letter of Transmittal is signed by the
registered holder(s) (which term, for purposes of this Instruction, includes any
participant in the Book-Entry Transfer Facilities' system whose name appears on
a security position listing as the owner of the Shares) of Shares tendered
herewith, unless such registered holder(s) has completed either the box entitled
"Special Payment Instructions" or the box entitled "Special Delivery
Instructions" on this Letter of Transmittal or (b) if such Shares are tendered
for the account of a firm that is a participant in the Security Transfer Agents
Medallion Program or the New York Stock Exchange Guarantee Program or the Stock
Exchange Medallion Program or by any other "eligible guarantor institution", as
such term is defined in Rule 17Ad-15 under the Securities Exchange Act of 1934,
as amended (each, an "Eligible Institution"). In all other cases, all signatures
on this Letter of Transmittal must be guaranteed by an Eligible Institution. See
Instruction 5.
2. REQUIREMENTS OF TENDER. This Letter of Transmittal is to be completed
by stockholders either if certificates are to be forwarded herewith or, unless
an Agent's Message (as defined below) is utilized, if delivery of Shares is to
be made pursuant to the procedures for book-entry transfer set forth in
Section 2 of the Offer to Purchase. For a stockholder validly to tender Shares
pursuant to the Offer, either (a) a Letter of Transmittal (or a facsimile
thereof), properly completed and duly executed, together with any required
signature guarantees or, in the case of a book-entry transfer, an Agent's
Message, and any other required documents, must be received by the Depositary at
one of its addresses set forth herein prior to the Expiration Date (as defined
in the Offer to Purchase) and either certificates for tendered Shares must be
received by the Depositary at one of such addresses or Shares must be delivered
pursuant to the procedures for book-entry transfer set forth herein (and a
Book-Entry Confirmation (as defined in the Offer to Purchase) must be received
by the Depositary), in each case, prior to the Expiration Date, or (b) the
tendering stockholder must comply with the guaranteed delivery procedures set
forth below and in Section 2 of the Offer to Purchase.
Stockholders whose certificates for Shares are not immediately available or
who cannot deliver their certificates and all other required documents to the
Depositary or complete the procedures for book-entry transfer prior to the
Expiration Date may tender their Shares by properly completing and duly
executing the Notice of Guaranteed Delivery pursuant to the guaranteed delivery
procedures set forth in Section 2 of the Offer to Purchase. Pursuant to such
procedures, (a) such tender must be made by or through an Eligible Institution,
(b) a properly completed and duly executed Notice of Guaranteed Delivery
substantially in the form provided by the Purchaser must be received by the
Depositary prior to the Expiration Date and (c) the certificates for all
tendered Shares in proper form for transfer (or a Book-Entry Confirmation with
respect to all such Shares), together with a Letter of Transmittal (or facsimile
thereof), properly completed and duly executed, with any required signature
guarantees, or, in the case of a book-entry transfer, an Agent's Message, and
any other required documents, must be received by the Depositary within three
trading days after the date of execution of such Notice of Guaranteed Delivery
as provided in Section 2 of the Offer to Purchase. A "trading day" is any day on
which the New York Stock Exchange is open for business.
"Agent's Message" means a message transmitted by the Book-Entry Transfer
Facility to, and received by, the Depositary and forming a part of a Book-Entry
Confirmation, that states that such Book-Entry Transfer Facility has received an
express acknowledgment from the participant in such Book-Entry Transfer Facility
tendering the Shares that such participant has received and agrees to be bound
by the terms of the Letter of Transmittal and that the Purchaser may enforce
such agreement against such participant.
THE METHOD OF DELIVERY OF SHARES, THIS LETTER OF TRANSMITTAL AND ALL OTHER
REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH ANY BOOK-ENTRY TRANSFER FACILITY,
IS AT THE ELECTION AND RISK OF THE TENDERING STOCKHOLDER. SHARES WILL BE DEEMED
DELIVERED ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY (INCLUDING, IN THE CASE
OF A BOOK-ENTRY TRANSFER, BY BOOK-ENTRY CONFIRMATION). IF DELIVERY IS BY MAIL,
REGISTERED MAIL, WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS
RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY
DELIVERY.
8
<PAGE>
No alternative, conditional or contingent tenders will be accepted and no
fractional Shares will be purchased. All tendering stockholders, by execution of
this Letter of Transmittal (or facsimile thereof), waive any right to receive
any notice of the acceptance of their Shares for payment.
3. INADEQUATE SPACE. If the space provided herein is inadequate, the
certificate numbers and/or the number of Shares should be listed on a separate
schedule attached hereto.
4. PARTIAL TENDERS (APPLICABLE TO CERTIFICATE STOCKHOLDERS ONLY). If fewer
than all the Shares evidenced by any certificate submitted are to be tendered,
fill in the number of Shares that are to be tendered in the box entitled "Number
of Shares Tendered". In any such case, new certificate(s) for the remainder of
the Shares that were evidenced by the old certificate(s) will be sent to the
registered holder, unless otherwise provided in the appropriate box on this
Letter of Transmittal, as soon as practicable after the acceptance of payment
of, and payment for the Shares tendered herewith. All Shares represented by
certificates delivered to the Depositary will be deemed to have been tendered
unless otherwise indicated.
5. SIGNATURES ON LETTER OF TRANSMITTAL, STOCK POWERS AND ENDORSEMENTS. If
this Letter of Transmittal is signed by the registered holder of the Shares
tendered hereby, the signature must correspond with the name as written on the
face of the certificate(s) without any change whatsoever.
If any of the Shares tendered hereby are owned of record by two or more
joint owners, all such owners must sign this Letter of Transmittal.
If any tendered Shares are registered in different names on several
certificates, it will be necessary to complete, sign and submit as many separate
Letters of Transmittal as there are different registrations of certificates.
If this Letter of Transmittal or any certificates or stock powers are signed
by trustees, executors, administrators, guardians, attorneys-in-fact, officers
of corporations or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing, and proper evidence satisfactory to the
Purchaser of their authority so to act must be submitted.
When this Letter of Transmittal is signed by the registered owner(s) of the
Shares listed and transmitted hereby, no endorsements of certificates or
separate stock powers are required unless payment is to be made to or
certificates for Shares not tendered or accepted for payment are to be issued to
a person other than the registered owner(s). Signatures on such certificates or
stock powers must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered owner(s) of certificates listed, the certificates must be endorsed or
accompanied by appropriate stock powers, in either case signed exactly as the
name or names of the registered owner or owners appear on the certificates.
Signatures on such certificates or stock powers must be guaranteed by an
Eligible Institution.
6. STOCK TRANSFER TAXES. The Purchaser will pay any stock transfer taxes
with respect to the transfer and sale of Shares to it or its order pursuant to
the Offer. If, however, payment of the purchase price is to be made to, or if
certificates for Shares not tendered or accepted for payment are to be
registered in the name of, any person(s) other than the registered owner(s), or
if tendered certificates are registered in the name of any person(s) other than
the person(s) signing this Letter of Transmittal, the amount of any stock
transfer taxes (whether imposed on the registered owner(s) or such person(s))
payable on account of the transfer to such person(s) will be deducted from the
purchase price unless satisfactory evidence of the payment of such taxes or
exemption therefrom is submitted.
Except as provided in this Instruction 6, it will not be necessary for
transfer tax stamps to be affixed to the certificates listed in this Letter of
Transmittal.
7. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If a check is to be issued
in the name of, and/or certificates for Shares not accepted for payment are to
be returned to, a person other than the signer of this Letter of Transmittal or
if a check is to be sent and/or such certificates are to be returned to a person
other than the signer of this Letter of Transmittal or to an address other than
that shown above, the appropriate boxes on this Letter of Transmittal should be
completed.
9
<PAGE>
8. WAIVER OF CONDITIONS. The Purchaser reserves the absolute right in its
sole discretion to waive any of the specified conditions (other than the Minimum
Condition (as defined in the Offer to Purchase)) of the Offer, in whole or in
part, in the case of any Shares tendered.
9. 31% BACKUP WITHHOLDING. In order to avoid backup withholding of U.S.
federal income tax on payments of cash pursuant to the Offer, a stockholder
surrendering Shares in the Offer must, unless an exemption applies, provide the
Depositary with such stockholder's correct taxpayer identification number
("TIN") on Substitute Form W-9 below in this Letter of Transmittal and certify
under penalties of perjury that such TIN is correct and that such stockholder is
not subject to backup withholding. If a stockholder does not provide such
stockholder's correct TIN or fails to provide the certifications described
above, the Internal Revenue Service (the "IRS") may impose a $50 penalty on such
stockholder and payment of cash to such stockholder pursuant to the Offer may be
subject to backup withholding of 31%.
Backup withholding is not an additional tax. Rather, the amount of the
backup withholding can be credited against the Federal income tax liability of
the person subject to the backup withholding, provided that the required
information is given to the IRS. If backup withholding results in an overpayment
of tax, a refund can be obtained by the stockholder upon filing an income tax
return.
The stockholder is required to give the Depositary the TIN (I.E., social
security number or employer identification number) of the record owner of the
Shares. If the Shares are held in more than one name or are not in the name of
the actual owner, consult the enclosed "Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9" for additional guidance on which
number to report.
The box in Part 3 of the Substitute Form W-9 may be checked if the tendering
stockholder has not been issued a TIN and has applied for a TIN or intends to
apply for a TIN in the near future. If the box in Part 3 is checked, the
stockholder or other payee must also complete the Certificate of Awaiting
Taxpayer Identification Number below in order to avoid backup withholding.
Notwithstanding that the box in Part 3 is checked and the Certificate of
Awaiting Taxpayer Identification Number is completed, the Depositary will
withhold 31% on all payments made prior to the time a properly certified TIN is
provided to the Depositary. However, such amounts will be refunded to such
stockholder if a TIN is provided to the Depositary within 60 days.
Certain stockholders (including, among others, all corporations and certain
foreign individuals and entities) are not subject to backup withholding.
Noncorporate foreign stockholders should complete and sign the main signature
form and a Form W-8, Certificate of Foreign Status, a copy of which may be
obtained from the Depositary, in order to avoid backup withholding. See the
enclosed "Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9" for more instructions.
10. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions and requests
for assistance may be directed to D.F. King & Co., Inc. (the "Information
Agent") or to Salomon Smith Barney Inc. (the "Dealer Manager") at their
respective addresses listed below. Additional copies of the Offer to Purchase,
this Letter of Transmittal, the Notice of Guaranteed Delivery and the Guidelines
for Certification of Taxpayer Identification Number on Substitute Form W-9 may
be obtained from the Information Agent or from brokers, dealers, banks, trust
companies or other nominees.
11. LOST, DESTROYED OR STOLEN CERTIFICATES. If any certificate
representing Shares has been lost, destroyed or stolen, the stockholder should
promptly notify the Depositary by checking the box immediately preceding the
special payment/special delivery instructions and indicating the number of
Shares so lost, destroyed or stolen, or call the Transfer Agent at 800-446-2617.
The stockholder will then be instructed by the Depositary as to the steps that
must be taken in order to replace the certificate. This Letter of Transmittal
and related documents cannot be processed until the procedures for replacing
lost or destroyed certificates have been followed.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR A MANUALLY SIGNED FACSIMILE
THEREOF) TOGETHER WITH ANY SIGNATURE GUARANTEES, OR, IN THE CASE OF A BOOK-ENTRY
TRANSFER, AN AGENT'S MESSAGE, AND ANY OTHER REQUIRED DOCUMENTS, MUST BE RECEIVED
BY THE DEPOSITARY PRIOR TO THE EXPIRATION DATE AND EITHER CERTIFICATES FOR
TENDERED SHARES MUST BE RECEIVED BY THE DEPOSITARY OR SHARES MUST BE DELIVERED
PURSUANT TO THE PROCEDURES FOR BOOK- ENTRY TRANSFER, IN EACH CASE PRIOR TO THE
EXPIRATION DATE, OR THE TENDERING STOCKHOLDER MUST COMPLY WITH THE PROCEDURES
FOR GUARANTEED DELIVERY.
10
<PAGE>
PAYER'S NAME: CITIBANK, N.A.
<TABLE>
<C> <S> <C>
- ----------------------------------------------------------------------------------------------------------------
SUBSTITUTE PART 1--PLEASE PROVIDE YOUR TIN IN THE BOX AT Social Security Number(s) or
FORM W-9 RIGHT AND CERTIFY BY SIGNING AND DATING BELOW. Employer Identification
Number
----------------------------
-------------------------------------------------------------------------------
PART 2--Certification under penalties of perjury, I certify that (1) the number
shown on this form is my correct Taxpayer Identification Number (or I am
waiting for a number to be issued for me) and (2) I am not subject to backup
withholding because: (a) I am exempt from backup withholding or (b) I have not
been notified by the Internal Revenue Service (the "IRS") that I am subject to
backup withholding as a result of a failure to report all interest or
dividends, or (c) the IRS has notified me that I am no longer subject to backup
withholding.
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
-------------------------------------------------------------------------------
CERTIFICATION INSTRUCTIONS--You must cross out
item (2) in Part 2 above if you have been
notified by the IRS that you are subject to
backup withholding because of underreporting
interest or dividends on your tax returns.
However, if after being notified by the IRS that
you are subject to backup withholding, you
received another notification from the IRS
stating that you are no longer subject to backup
withholding, do not cross out such item (2). If
you are exempt from backup withholding, check the
box in Part 4 above.
PAYER'S REQUEST FOR TAXPAYER PART 3
IDENTIFICATION NUMBER (TIN) Awaiting TIN / /
PART 4
Exempt TIN / /
- ----------------------------------------------------------------------------------
Signature: ----------------------------------------------------------------------- Date: ----------------------
- ----------------------------------------------------------------------------------------------------------------
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS SUBSTITUTE FORM W-9 MAY RESULT IN
BACKUP WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE
OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL INFORMATION.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART
3 OF SUBSTITUTE FORM W-9.
------------------------------------------------------------------------------
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number
has not been issued to me, and either (a) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or
(b) I intend to mail or deliver an application in the near future. I
understand that if I do not provide a taxpayer identification number to the
Depositary, 31% percent of all reportable payments made to me will be
withheld, but will be refunded to me if I provide a certified taxpayer
identification number within 60 days.
Signature _______________________________________________________________ Date
--------------
------------------------------------------------------------------------------
Manually signed facsimile copies of the Letter of Transmittal will be
accepted. The Letter of Transmittal, certificates for Shares and any other
required documents should be sent or delivered by each stockholder of the
Company or such stockholder's broker, dealer, commercial bank, trust company
or other nominee to the Depositary at one of its addresses set forth below.
11
<PAGE>
THE DEPOSITARY FOR THE OFFER IS
CITIBANK, N.A.
<TABLE>
<S> <C> <C>
BY MAIL: BY HAND: BY COURIER:
Citibank, N.A. Citibank, N.A. 915 Broadway, 5th Floor
P.O. Box 685 Corporate Trust Window New York, NY 10010
Old Chelsea Station 111 Wall Street, 5th Floor
New York, NY 10113 New York, NY 10043
BY FACSIMILE TRANSMISSION:
(For Eligible Institutions only)
(212) 505-2248
CONFIRM FACSIMILE TRANSMISSION:
By telephone only
(800) 270-0808
</TABLE>
Questions and requests for assistance may be directed to the Information
Agent or the Dealer Manager at their respective addresses set forth below.
Additional copies of the Offer to Purchase, this Letter of Transmittal and the
Notice of Guaranteed Delivery may be obtained from the Information Agent. You
may also contact your broker, dealer, bank, trust company or other nominee for
assistance concerning the Offer.
The Information Agent for the Offer is:
D. F. KING & CO., INC.
77 WATER STREET
NEW YORK, NEW YORK 10005
BANKS AND BROKERS CALL COLLECT: (212) 269-5550
ALL OTHERS CALL TOLL FREE: (800) 290-6428
The Dealer Manager for the Offer is:
SALOMON SMITH BARNEY
388 GREENWICH STREET
NEW YORK, NEW YORK 10013
(877) 820-8015
12
<PAGE>
EXHIBIT (a)(1)(C)
NOTICE OF GUARANTEED DELIVERY
FOR
TENDER OF SHARES OF COMMON STOCK
OF
AMERICAN NATIONAL CAN GROUP, INC.
(NOT TO BE USED FOR SIGNATURE GUARANTEES)
As set forth in Section 2 of the Offer to Purchase (as defined below), this
form or one substantially equivalent hereto must be used to accept the Offer (as
defined below) if certificates representing shares of common stock, par value
$0.01 per share (the "Shares"), of American National Can Group, Inc., a Delaware
corporation (the "Company"), are not immediately available or if the procedures
for book-entry transfer cannot be completed on a timely basis or time will not
permit all required documents to reach the Depositary prior to the Expiration
Date (as defined in the Offer to Purchase). This form may be delivered by hand
to the Depositary or transmitted by telegram, facsimile transmission or mail to
the Depositary and must include a guarantee by an Eligible Institution (as
defined in the Offer to Purchase). See Section 2 of the Offer to Purchase.
<TABLE>
<S> <C> <C>
BY MAIL: BY HAND: BY COURIER:
Citibank, N.A. Citibank, N.A. 915 Broadway, 5th Floor
P.O. Box 685 Corporate Trust Window New York, NY 10010
Old Chelsea Station 111 Wall Street, 5th Floor
New York, NY 10113 New York, NY 10043
BY FACSIMILE TRANSMISSION:
(For Eligible Institutions
only)
(212) 505-2248
CONFIRM FACSIMILE
TRANSMISSION:
By telephone only
(800) 270-0808
</TABLE>
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS, OR TRANSMISSION OF INSTRUCTIONS
VIA A FACSIMILE NUMBER, OTHER THAN AS SET FORTH ABOVE, DOES NOT CONSTITUTE A
VALID DELIVERY.
THIS FORM IS NOT TO BE USED TO GUARANTEE SIGNATURES. IF A SIGNATURE ON A
LETTER OF TRANSMITTAL IS REQUIRED TO BE GUARANTEED BY AN ELIGIBLE INSTITUTION
UNDER THE INSTRUCTIONS THERETO, SUCH SIGNATURE GUARANTEE MUST APPEAR IN THE
APPLICABLE SPACE PROVIDED IN THE SIGNATURE BOX ON THE LETTER OF TRANSMITTAL.
THE GUARANTEE ON THE REVERSE SIDE MUST BE COMPLETED.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to Rexam Acquisition Subsidiary Inc., a
Delaware corporation (the "Purchaser") and a wholly owned indirect subsidiary of
Rexam PLC, a public limited company organized under the laws of England and
Wales, upon the terms and subject to the conditions set forth in the Purchaser's
Offer to Purchase dated April 10, 2000 (the "Offer to Purchase"), and in the
related Letter of Transmittal (which, together with any amendments or
supplements thereto, collectively constitute the "Offer"), receipt of which is
hereby acknowledged, the number of Shares set forth below, all pursuant to the
guaranteed delivery procedures set forth in Section 2 of the Offer to Purchase.
<TABLE>
<S> <C>
- ------------------------------------------- -------------------------------------------
Number of Shares Name(s) of
Record Holder(s):
Certificate Nos. (if available)
PLEASE PRINT
Address(es):
(Check box if Shares will be tendered by
book-entry transfer) (Zip Code)
/ / The Depository Trust Company Daytime Area Code and Tel. No.:
Account Number Signature(s):
Dated
- ------------------------------------------- -------------------------------------------
</TABLE>
2
<PAGE>
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm that is a participant in the Security Transfer
Agents Medallion Program or the New York Stock Exchange Guarantee Program or the
Stock Exchange Medallion Program or an "eligible guarantor institution", as such
term is defined in Rule 17Ad-15 under the Securities Exchange Act of 1934, as
amended, hereby guarantees to deliver to the Depositary either the certificates
representing the Shares tendered hereby, in proper form for transfer, or a
Book-Entry Confirmation (as defined in the Offer to Purchase) with respect to
such Shares, in any such case together with a properly completed and duly
executed Letter of Transmittal (or a facsimile thereof), with any required
signature guarantees, or an Agent's Message (as defined in the Offer to
Purchase), and any other required documents, within three New York Stock
Exchange trading days (as defined in the Letter of Transmittal) after the date
hereof.
The Eligible Institution that completes this form must communicate the
guarantee to the Depositary and must deliver the Letter of Transmittal and
certificates for Shares to the Depositary within the time period shown herein.
Failure to do so could result in a financial loss to such Eligible Institution.
<TABLE>
<S> <C>
- ------------------------------------------- -------------------------------------------
Name of Firm: AUTHORIZED SIGNATURE
Address: Name:
PLEASE TYPE OR PRINT
Zip Code
Area Code and Tel. No: Title:
Dated:
- ------------------------------------------- -------------------------------------------
</TABLE>
NOTE: DO NOT SEND CERTIFICATES FOR SHARES WITH THIS NOTICE. CERTIFICATES FOR
SHARES SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL.
3
<PAGE>
EXHIBIT (a)(1)(D)
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
AMERICAN NATIONAL CAN GROUP, INC.
AT
$18.00 NET PER SHARE
BY
REXAM ACQUISITION SUBSIDIARY INC.,
A WHOLLY OWNED INDIRECT SUBSIDIARY OF
REXAM PLC
- --------------------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON FRIDAY, MAY 5, 2000, UNLESS THE OFFER IS EXTENDED.
- --------------------------------------------------------------------------------
To Brokers, Dealers, Banks,
Trust Companies and other Nominees
We have been engaged by Rexam Acquisition Subsidiary Inc., a Delaware
corporation (the "Purchaser") and a wholly owned indirect subsidiary of Rexam
PLC, a public limited company organized under the laws of England and Wales
("Parent"), and Parent to act as Dealer Manager in connection with the
Purchaser's offer to purchase all outstanding shares of common stock, par value
$0.01 per share (the "Shares"), of American National Can Group, Inc., a Delaware
corporation (the "Company"), at $18.00 per share (the "Offer Price"), net to the
seller in cash, without interest thereon, upon the terms and subject to the
conditions set forth in the Purchaser's Offer to Purchase dated April 10, 2000
(the "Offer to Purchase"), and in the related Letter of Transmittal (which,
together with any amendments or supplements thereto, collectively constitute the
"Offer"). Please furnish copies of the enclosed materials to those of your
clients for whom you hold Shares registered in your name or in the name of your
nominee.
Enclosed herewith are copies of the following documents:
1. Offer to Purchase dated April 10, 2000;
2. Letter of Transmittal to be used by stockholders of the Company in
accepting the Offer (facsimile copies of the Letter of Transmittal may be
used to tender the Shares);
3. The Letter to Stockholders of the Company from the Chairman of the Board
and Chief Executive Officer of the Company accompanied by the Company's
Solicitation/Recommendation Statement on Schedule 14D-9;
4. A printed form of letter that may be sent to your clients for whose
account you hold shares in your name or in the name of a nominee, with
space provided for obtaining such clients' instructions with regard to
the Offer;
5. Notice of Guaranteed Delivery with respect to Shares;
6. Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9; and
7. Return envelope addressed to Citibank, N.A., as Depositary.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (A) THERE BEING VALIDLY
TENDERED AND NOT VALIDLY WITHDRAWN PRIOR TO THE EXPIRATION DATE (AS DEFINED IN
SECTION 1 OF THE OFFER TO PURCHASE) THAT NUMBER OF SHARES THAT WOULD REPRESENT
AT LEAST A MAJORITY OF THE FULLY DILUTED SHARES (AS DEFINED IN SECTION 14 OF THE
OFFER TO PURCHASE) ON THE DATE OF PURCHASE,
<PAGE>
(B) ANY WAITING PERIOD UNDER THE HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF
1976, AS AMENDED, APPLICABLE TO THE PURCHASE OF SHARES PURSUANT TO THE OFFER OR
TO THE MERGER HAVING EXPIRED OR BEEN TERMINATED, (C) THE EUROPEAN COMMISSION
HAVING DECLARED IN TERMS, THAT, TAKEN TOGETHER WITH CLAUSE (D)(II) BELOW, ARE
NOT MATERIALLY COMMERCIALLY UNREASONABLE IN THE AGGREGATE, THAT THE
CONCENTRATION IS COMPATIBLE WITH THE COMMON MARKET PURSUANT TO ARTICLE 6(1)(B)
OR ARTICLE 8(2) OF THE COUNCIL REGULATION (EEC) NO. 4064/89 (AS AMENDED BY
COUNCIL REGULATION (EC) NO. 1310/97), (D) IN THE EVENT THAT A REQUEST UNDER
ARTICLE 9(2) OF THE COUNCIL REGULATION (EEC) NO. 4064/89 (AS AMENDED BY COUNCIL
REGULATION (EC) NO. 1310/97) HAS BEEN MADE BY ONE OR MORE EUROPEAN UNION OR EFTA
STATES, EITHER (I) THE EUROPEAN COMMISSION HAVING INDICATED THAT IT DOES NOT
INTEND TO REFER THE PROPOSED ACQUISITION, OR ANY ASPECT THEREOF, TO A COMPETENT
AUTHORITY OF SUCH STATE OR (II) IF SUCH REFERRAL IS MADE, THE STATE(S) HAVING
RESOLVED THEIR INVESTIGATIONS, IN TERMS, TAKEN TOGETHER WITH CLAUSE (C) ABOVE,
THAT ARE NOT MATERIALLY COMMERCIALLY UNREASONABLE IN THE AGGREGATE, OR ANY
APPLICABLE WAITING PERIOD(S) HAVING EXPIRED, (E) THE APPROVAL OF THE MERGER
AGREEMENT, THIS OFFER AND THE MERGER BY THE SHAREHOLDERS OF PARENT AND (F) THE
RECEIPT OF OTHER REQUISITE MATERIAL REGULATORY AND ANTITRUST CLEARANCES.
We urge you to contact your clients promptly. Please note that the Offer and
withdrawal rights will expire at 12:00 midnight, New York City Time, on May 5,
2000, unless extended.
The Board of Directors of the Company has unanimously approved the Offer and
the Merger and determined that the terms of the Offer and the Merger are
advisable, fair to, and in the best interests of, the Company's stockholders,
and recommends that stockholders of the Company accept the Offer and tender
their Shares.
The Offer is being made pursuant to the Agreement and Plan of Merger dated
as of March 31, 2000 (the "Merger Agreement"), among Parent, the Purchaser and
the Company pursuant to which, as soon as practicable following the consummation
of the Offer and the satisfaction or waiver of certain conditions, the Purchaser
will be merged with and into the Company, with the Company surviving the Merger
as a wholly owned indirect subsidiary of Parent (the "Merger"). At the effective
time of the Merger, each outstanding Share (other than Shares owned by Parent,
the Purchaser or the Company or any subsidiary of Parent or the Company or by
stockholders, if any, who are entitled to and properly exercise appraisal rights
under Delaware law) will be converted into the right to receive the price per
Share paid pursuant to the Offer in cash, without interest thereon, as set forth
in the Merger Agreement and described in the Offer to Purchase. The Merger
Agreement provides that the Purchaser may assign any or all of its rights and
obligations (including the right to purchase Shares in the Offer) to Parent or
any wholly owned subsidiary of Parent, but no such assignment shall relieve the
Purchaser of its obligations under the Merger Agreement.
In all cases, payment for Shares accepted for payment pursuant to the Offer
will be made only after timely receipt by the Depositary of (a) certificates for
(or a timely Book-Entry Confirmation (as defined in the Offer to Purchase) with
respect to such Shares, (b) a Letter of Transmittal (or a facsimile thereof),
properly completed, and duly executed, with any required signature guarantees,
or, in the case of a book-entry transfer effected pursuant to the procedure set
forth in Section 2 of the Offer to Purchase, an Agent's Message (as defined in
the Offer to Purchase), and (c) any other documents required by the Letter of
Transmittal. Accordingly, tendering shareholders may be paid at different times
depending upon when certificates for Shares or Book-Entry Confirmations with
respect to Shares are actually received by the Depositary. Under no
circumstances will interest be paid on the purchase price of the Shares to be
paid by the Purchaser, regardless of any extension of the Offer or any delay in
making such payment.
2
<PAGE>
None of the Purchaser or Parent will pay any fees or commissions to any
broker or dealer or other person (other than the Dealer Manager, as described in
the Offer to Purchase) in connection with the solicitation of tenders of Shares
pursuant to the Offer. You will be reimbursed by the Purchaser upon request for
customary mailing and handling expenses incurred by you in forwarding the
enclosed Offering materials to your customers.
Questions and requests for additional copies of the enclosed material may be
directed to the Information Agent or the Dealer Manager at their respective
addresses and telephone numbers set forth on the back cover of the enclosed
Offer to Purchase.
Very truly yours,
SALOMON SMITH BARNEY INC.
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL RENDER YOU OR
ANY OTHER PERSON THE AGENT OF THE PURCHASER, PARENT, THE DEPOSITARY, THE
INFORMATION AGENT OR THE DEALER MANAGER OR AUTHORIZE YOU OR ANY OTHER PERSON TO
GIVE ANY INFORMATION OR MAKE ANY REPRESENTATION ON BEHALF OF ANY OF THEM WITH
RESPECT TO THE OFFER NOT CONTAINED IN THE OFFER TO PURCHASE OR THE LETTER OF
TRANSMITTAL.
3
<PAGE>
EXHIBIT (a)(1)(E)
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
AMERICAN NATIONAL CAN GROUP, INC.
AT
$18.00 NET PER SHARE
BY
REXAM ACQUISITION SUBSIDIARY INC.,
A WHOLLY OWNED INDIRECT SUBSIDIARY OF
REXAM PLC
April 10, 2000
To Our Clients:
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON FRIDAY, MAY 5, 2000, UNLESS THE OFFER IS EXTENDED.
Enclosed for your consideration is an Offer to Purchase dated April 10, 2000
(the "Offer to Purchase"), and the related Letter of Transmittal (which,
together with amendments or supplements thereto, collectively constitute the
"Offer") relating to the Offer by Rexam Acquisition Subsidiary Inc., a Delaware
corporation ("Purchaser") and a wholly owned indirect subsidiary of Rexam PLC, a
public limited company organized under the laws of England and Wales ("Parent"),
to purchase all outstanding shares of common stock, par value $0.01 per share
(the "Shares"), of American National Can Group, Inc., a Delaware corporation
(the "Company"), upon the terms and subject to the conditions set forth in the
Offer. Also enclosed is the Letter to Stockholders of the Company from the
Chairman of the Board and Chief Executive Officer of the Company accompanied by
the Company's Solicitation/Recommendation Statement on Schedule 14D-9.
We (or our nominees) are the holder of record of Shares held by us for your
account. A tender of such Shares can be made only by us as the holder of record
and pursuant to your instructions. The Letter of Transmittal is furnished to you
for your information only and cannot be used to tender Shares held by us for
your account.
We request instructions as to whether you wish to tender any of or all the
Shares held by us for your account pursuant to the terms and conditions set
forth in the Offer.
Your attention is directed to the following:
1. The offer price is $18.00 per Share net to the seller in cash,
without interest thereon, upon the terms and subject to the conditions of
the Offer.
2. The Offer is being made for all outstanding Shares.
3. The Board of Directors of the Company has unanimously approved the
Merger Agreement (as defined below), the Offer and the Merger (as defined
below) and the other transactions contemplated by the Merger Agreement and
determined that the terms of the Offer and the Merger are advisable, fair
to, and in the best interests of, the Company's stockholders and unanimously
recommends that stockholders of the Company accept the Offer and tender
their Shares.
4. The Offer is being made pursuant to the Agreement and Plan of Merger
dated as of March 31, 2000 (the "Merger Agreement"), among Parent, the
Purchaser and the Company pursuant to which,
<PAGE>
as soon as practicable following the consummation of the Offer and the
satisfaction or waiver of certain conditions, the Purchaser will be merged
with and into the Company with the Company surviving the merger as a wholly
owned indirect subsidiary of Parent (the "Merger"). At the effective time of
the Merger, each outstanding Share (other than Shares owned by Parent, the
Purchaser or the Company or any subsidiary of Parent or the Company or by
stockholders, if any, who are entitled to and properly exercise appraisal
rights under Delaware Law) will be converted into the right to receive the
price per Share paid pursuant to the Offer in cash, without interest, as set
forth in the Merger Agreement and described in the Offer to Purchase. The
Merger Agreement provides that the Purchaser may assign any or all of its
rights and obligations (including the right to purchase Shares in the Offer)
to Parent or any wholly owned subsidiary of Parent, but no such assignment
shall relieve the Purchaser of its obligations under the Merger Agreement.
5. THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME, ON FRIDAY, MAY 5, 2000 (THE "EXPIRATION DATE"), UNLESS THE OFFER
IS EXTENDED BY THE PURCHASER, IN WHICH EVENT THE TERM "EXPIRATION DATE"
SHALL MEAN THE LATEST TIME AT WHICH THE OFFER, AS SO EXTENDED BY THE
PURCHASER, WILL EXPIRE.
6. The Offer is conditioned upon, among other things, (a) there being
validly tendered and not validly withdrawn prior to the Expiration Date that
number of Shares that would represent at least a majority of the Fully
Diluted Shares (as defined in Section 14 of the Offer to Purchase) on the
date of purchase, (b) any waiting period under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended, applicable to the purchase
of Shares pursuant to the Offer or to the Merger having expired or been
terminated, (c) the European Commission having declared in terms, that,
taken together with clause (d)(ii) below, are not materially commercially
unreasonable in the aggregate, that the concentration is compatible with the
common market pursuant to Article 6(1)(b) or Article 8(2) of the Council
Regulation (EEC) No. 4064/89 (as amended by Council Regulation (EC)
No. 1310/97), (d) in the event that a request under Article 9(2) of the
Council Regulation (EEC) No. 4064/89 (as amended by Council Regulation (EC)
No. 1310/97) has been made by one or more European Union or EFTA states,
either (i) the European Commission having indicated that it does not intend
to refer the proposed acquisition, or any aspect thereof, to a competent
authority of such state or (ii) if such referral is made, the state(s)
having resolved their investigations, in terms, taken together with clause
(c) above, that are not materially commercially unreasonable in the
aggregate, or any applicable waiting period(s) having expired, (e) the
approval of the Merger Agreement, the Offer and the Merger by the
shareholders of Parent and (f) the receipt of other requisite material
regulatory and antitrust clearances.
7. Any stock transfer taxes applicable to a sale of Shares to the
Purchaser will be borne by the Purchaser, except as otherwise provided in
Instruction 6 of the Letter of Transmittal.
8. Tendering stockholders will not be obligated to pay brokerage fees or
commissions to the Dealer Manager, the Depositary or the Information Agent
or, except as set forth in Instruction 6 of the Letter of Transmittal,
transfer taxes on the purchase of Shares by Purchaser pursuant to the Offer.
However, federal income tax backup withholding at a rate of 31% may be
required, unless an exemption is provided or unless the required taxpayer
identification information is provided. See Instruction 9 of the Letter of
Transmittal.
Your instructions to us should be forwarded promptly to permit us to submit
a tender on your behalf prior to the Expiration Date.
If you wish to have us tender any of or all the Shares held by us for your
account, please so instruct us by completing, executing, detaching and returning
to us the instruction form on the detachable part hereof. An envelope to return
your instructions to us is enclosed. If you authorize the tender of your Shares,
all such Shares will be tendered unless otherwise specified on the detachable
part hereof. YOUR INSTRUCTIONS
2
<PAGE>
SHOULD BE FORWARDED TO US IN AMPLE TIME TO PERMIT US TO SUBMIT A TENDER ON YOUR
BEHALF PRIOR TO THE EXPIRATION DATE.
Payment for Shares accepted for payment pursuant to the Offer will in all
cases be made only after timely receipt by Citibank, N.A. (the "Depositary") of
(a) certificates for (or a timely Book-Entry Confirmation (as defined in the
Offer to Purchase) with respect to such Shares, (b) a Letter of Transmittal (or
a facsimile thereof), properly completed and duly executed, with any required
signature guarantees, or, in the case of a book-entry transfer effected pursuant
to the procedures set forth in Section 2 of the Offer to Purchase, an Agent's
Message, and (c) any other documents required by the Letter of Transmittal.
Accordingly, tendering stockholders may be paid at different times depending
upon when certificates for Shares or Book-Entry Confirmations with respect to
Shares are actually received by the Depositary. UNDER NO CIRCUMSTANCES WILL
INTEREST BE PAID ON THE PURCHASE PRICE OF THE SHARES TO BE PAID BY THE
PURCHASER, REGARDLESS OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING SUCH
PAYMENT.
The Offer is not being made to (nor will tenders be accepted from or on
behalf of) holders of Shares in any jurisdiction in which the making of the
Offer or the acceptance thereof would not be in compliance with the laws of such
jurisdiction. In any jurisdiction where the securities, blue sky or other laws
require the Offer to be made by a licensed broker or dealer, the Offer is being
made on behalf of the Purchaser by Salomon Smith Barney Inc., the Dealer Manager
for the Offer, or one or more registered brokers or dealers that are licensed
under the laws of such jurisdiction.
3
<PAGE>
INSTRUCTIONS WITH RESPECT TO THE OFFER TO PURCHASE
FOR CASH ALL OUTSTANDING SHARES OF COMMON STOCK
OF AMERICAN NATIONAL CAN GROUP, INC.
The undersigned acknowledge(s) receipt of your letter, the Offer to Purchase
of American National Can Group, Inc., dated April 10, 2000 (the "Offer to
Purchase"), and the related Letter of Transmittal relating to shares of common
stock, par value $0.01 per share (the "Shares"), of American National Can
Group, Inc., a Delaware corporation.
This will instruct you to tender the number of Shares indicated below held
by you for the account of the undersigned, on the terms and subject to the
conditions set forth in the Offer to Purchase and related Letter of Transmittal.
NUMBER OF SHARES TO BE TENDERED(1):
________________SHARES
<TABLE>
<CAPTION>
<S> <C>
SIGN HERE
------------------------------------------------
Signature(s)
------------------------------------------------
------------------------------------------------
Please Type or Print Name(s)
------------------------------------------------
------------------------------------------------
Please Type or Print Address(es)
------------------------------------------------
Area Code and Telephone Number
------------------------------------------------
Taxpayer Identification or Social Security No.
Dated: , 2000
</TABLE>
- ------------------------
(1)_Unless otherwise indicated, it will be assumed that all your Shares are to
be tendered.
4
<PAGE>
EXHIBIT (a)(1)(F)
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE
PAYER.--Social Security numbers have nine digits separated by two hyphens: E.G.,
000-00-0000. EMPLOYER IDENTIFICATION NUMBERS HAVE NINE DIGITS SEPARATED BY ONLY
ONE HYPHEN: E.G., 00-0000000. The table below will help determine the number to
give the payer.
<TABLE>
<C> <S> <C>
- -------------------------------------------------
GIVE THE
SOCIAL SECURITY
FOR THIS TYPE OF ACCOUNT: NUMBER OF--
- -------------------------------------------------
1. An individual's The individual
account
2. Two or more The actual owner of
individuals (joint the account or, if
account) combined funds, any
one of the
individuals(1)
3. Husband and wife The actual owner of
(joint account) the account or, if
joint funds, either
person(l)
4. Custodian account of The minor(2)
a minor (Uniform Gift
to Minors Act)
5. Adult and minor The adult or, if the
(joint account) minor is the only
contributor, the
minor(l)
6. Account in the name The ward, minor, or
of guardian or incompetent person(3)
committee for a
designated ward,
minor, or incompetent
person
7. a. The usual The
revocable savings grantor-trustee(l)
trust account
(grantor is also
trustee)
b. So-called trust The actual owner(l)
account that is
not a legal
or valid trust
under State law
8. Sole proprietorship The owner(4)
account
- -------------------------------------------------
GIVE THE
EMPLOYER
FOR THIS TYPE OF ACCOUNT: IDENTIFICATION
NUMBER OF--
- -------------------------------------------------
9. Sole proprietorship The owner(4)
account
10. A valid trust, The legal entity (Do
estate, or pension not furnish the
trust identifying number of
the personal
representative or
trustee unless the
legal entity itself
is not designated in
the account
title.)(5)
11. Corporate account The corporation
12. Religious, The organization
charitable, or
educational
organization account
13. Partnership account The partnership
held in the name of
the business
14. Association, club, or The organization
other tax-exempt
organization
15. A broker or The broker or nominee
registered nominee
16. Account with the The public entity
Department of
Agriculture in the
name of a public
entity (such as a
State or local
government, school
district, or prison)
that receives
agricultural program
payments
</TABLE>
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security number.
(3) Circle the ward's, minor's or incompetent person's name and furnish such
person's social security number.
(4) Show the name of the owner but you may also enter your business or "doing
business as" name. You may use either your social security number or your
employer identification number (if you have one).
(5) List first and circle the name of the legal trust, estate, or pension trust.
Note: If no name is circled when there is more than one name, the number will be
considered to be that of the first name listed.
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
PAGE 2
OBTAINING A NUMBER
If you don't have a taxpayer identification number or you don't know your
number, obtain Form SS-5, Application for a Social Security Number Card, or Form
SS-4, Application for Employer Identification Number, at the local office of the
Social Security Administration or the Internal Revenue Service and apply for a
number.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
Payees specifically exempted from backup withholding on ALL payments include
the following:
- - A corporation.
- - A financial institution.
- - An organization exempt from tax under section 501(a), or an individual
retirement plan.
- - The United States or any agency or instrumentality thereof.
- - A State, the District of Columbia, a possession of the United States, or any
subdivision or instrumentality thereof.
- - A foreign government, a political subdivision of a foreign government, or any
agency or instrumentality thereof.
- - An international organization or any agency, or instrumentality thereof.
- - A registered dealer in securities or commodities registered in the United
States or a possession of the United States.
- - A real estate investment trust.
- - A common trust fund operated by a bank under section 584(a).
- - An exempt charitable remainder trust, or a non-exempt trust described in
section 4947(a)(1).
- - An entity registered at all times under the investment Company Act of 1940.
- - A foreign central bank of issue.
Payments of dividends and patronage dividends not generally subject to
backup withholding include the following:
- - Payments to nonresident aliens subject to withholding under section 1441.
- - Payments to partnerships not engaged in a trade or business in the United
States and which have at least one nonresident partner.
- - Payments of patronage dividends where the amount received is not paid in
money.
- - Payments made by certain foreign organizations.
- - Payments made to a nominee.
Payments of interest not generally subject to backup withholding include the
following:
- - Payments of interest on obligations issued by individuals. Note: You may be
subject to backup withholding if this interest is $600 or more and is paid in
the course of the payer's trade or business and you have not provided your
correct taxpayer identification number to the payer.
- - Payments of tax-exempt interest (including exempt-interest dividends under
section 852).
- - Payments described in section 6049(b)(5) to nonresident aliens.
- - Payments on tax-free covenant bonds under section 1451.
- - Payments made by certain foreign organizations.
- - Payments made to a nominee.
Exempt payees described above should file Form W-9 to avoid possible
erroneous backup withholding. FILE THIS FORM WITH THE PAYER, FURNISH YOUR
TAXPAYER IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF THE FORM, AND
RETURN IT TO THE PAYER. IF THE PAYMENTS ARE INTEREST, DIVIDENDS, OR PATRONAGE
DIVIDENDS, ALSO SIGN AND DATE THE FORM.
Certain payments other than interest dividends, and patronage dividends,
that are not subject to information reporting are also not subject to backup
withholding. For details, see the regulations under sections 6041, 6041A(a),
6045, and 6050A.
Privacy Act Notice.--Section 6109 requires most recipients of dividend,
interest, or other payments to give taxpayer identification numbers to payers
who must report the payments to IRS. IRS uses the numbers for identification
purposes. Payers must be given the numbers whether or not recipients are
required to file tax returns. Beginning January 1, 1984, payers must generally
withhold 31% of taxable interest, dividend, and certain other payments to a
payee who does not furnish a taxpayer identification number to a payer. Certain
penalties may also apply.
PENALTIES
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER.--If you fail
to furnish your taxpayer identification number to a payer, you are subject
to a penalty of $50 for each such failure unless your failure is due to
reasonable cause and not to willful neglect.
(2) FAILURE TO REPORT CERTAIN DIVIDEND AND INTEREST PAYMENTS.--If you fail to
include any portion of an includible payment for interest, dividends, or
patronage dividends in gross income, such failure will be treated as being
due to negligence and will be subject to a penalty of 5% on any portion of
an underpayment attributable to that failure unless there is clear and
convincing evidence to the contrary.
(3) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING.--If you
make a false statement with no reasonable basis which results in no
imposition of backup withholding, you are subject to a penalty of $500.
(4) CRIMINAL PENALTY FOR FALSIFYING INFORMATION.--Falsifying certifications or
affirmations may subject you to criminal penalties including fines and/or
imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL
REVENUE SERVICE.
<PAGE>
Exhibit (a)(1)(G)
PRESS RELEASE
FOR IMMEDIATE RELEASE
Contacts: ANC Rexam PLC
Josesph Esterman Per Erlandsson
Vice President, Director of Corporate
Investor Relations Communication
Direct Line (773) 399-3721 Direct Line 44 (0)20 7227 4140
Rexam to Acquire American National Can Group
LONDON, ENGLAND and CHICAGO, ILLINOIS, April 3, 2000 - Rexam PLC and American
National Can Group, Inc. (NYSE: CAN) today announced they have entered into a
definitive agreement under which Rexam will acquire all outstanding shares of
American National Can for $18.00 per share payable in cash, a premium of 44% to
American National Can's average March 2000 closing price.
Rexam will commence the transaction with a cash tender offer for all of the
outstanding American National Can shares within five business days. Any shares
not purchased in the tender offer will be exchanged for cash in the amount of
$18.00 per share in a merger of American National Can and Rexam's acquisition
subsidiary.
The transaction is valued at approximately $2.0 billion based on approximately
55 million shares of American National Can common stock outstanding on March 31,
2000 and approximately $984 million in net debt, as of December 31, 1999.
In announcing the transaction, Rolf Borjesson, Rexam's Chief Executive stated:
"The acquisition of American National Can completes our three year programme to
reshape Rexam around its consumer packaging activities and make it a world
leader in the sector. American National Can brings a strong presence in the
important US beverage packaging market and the two companies have complementary
positions in Europe and Asia, enabling us to serve global customers on a global
basis. Having achieved a genuine leadership position in beverage packaging, we
now have a strong platform for growth elsewhere in the consumer packaging
sector. "
-more-
<PAGE>
Page Two
"All that we have been doing the last three years has been directed toward
creating value for our shareholders, customers and employees," said Ed Lapekas,
ANCG Chairman and CEO. "Our impressive results - in cost reduction and world
class manufacturing - coupled with our leading market positions, strong customer
relationships and strategic plant network position us to continue to increase
profitability. Our accomplishments and the opportunities presented by merging
with Rexam achieve our goal of value creation."
Both companies' Boards of Directors have unanimously approved the merger
agreement. The transaction will be conditioned on regulatory approvals,
including expiration of applicable waiting periods and other customary
conditions. In addition, Pechiney, American National Can's largest shareholder
with approximately 45% of American National Can's outstanding and issued shares,
has entered into an agreement pursuant to which it has irrevocably agreed to
tender all of its shares into the Rexam tender offer. In connection with its
consideration of the transaction, the Board of Directors of American National
Can received the opinion of Deutsche Banc Alex. Brown, its investment banker for
the transaction, that the $18 to be received by American National Can
shareholders in the tender offer and the merger is fair to such shareholders
from a financial point of view.
Investors and security holders are strongly advised to read both the tender
offer statement and the solicitation/recommendation statement regarding the
tender offer referred to in this press release, when they become available,
because they will contain important information. The tender offer statement will
be filed by Rexam with the Securities and Exchange Commission (SEC), and the
solicitation/recommendation statement will be filed by American National Can
with the SEC. Investors and security holders may obtain a free copy of these
statements (when available) and other documents filed by Rexam and American
National Can at the SEC's web site at www.sec.gov. The tender offer statement
and related materials may be obtained for free by directing such requests to
Rexam Investor Relations. The solicitation/recommendation statement and such
other documents may be obtained by directing such requests to American National
Can Investor Relations.
# # #
<PAGE>
Exhibit (a)(1)(H)
- --------------------------------------------------------------------------------
THIS ANNOUNCEMENT IS NEITHER AN OFFER TO PURCHASE NOR A SOLICITATION OF AN OFFER
TO SELL SHARES (AS DEFINED BELOW). THE OFFER (AS DEFINED BELOW) IS MADE SOLELY
BY THE OFFER TO PURCHASE DATED APRIL 10, 2000, AND THE RELATED LETTER OF
TRANSMITTAL AND ANY AMENDMENTS OR SUPPLEMENTS THERETO AND IS NOT BEING MADE TO
(NOR WILL TENDERS BE ACCEPTED FROM OR ON BEHALF OF) HOLDERS OF SHARES IN ANY
JURISDICTION IN WHICH THE MAKING OF THE OFFER OR THE ACCEPTANCE THEREOF WOULD
NOT BE IN COMPLIANCE WITH THE LAWS OF SUCH JURISDICTION. IN ANY JURISDICTION IN
WHICH THE SECURITIES, BLUE SKY OR OTHER LAWS REQUIRE THE OFFER TO BE MADE BY A
LICENSED BROKER OR DEALER, THE OFFER SHALL BE DEEMED MADE ON BEHALF OF THE
PURCHASER (AS DEFINED BELOW) BY SALOMON SMITH BARNEY INC., THE DEALER MANAGER
(AS DEFINED BELOW), OR BY ONE OR MORE REGISTERED BROKERS OR DEALERS THAT ARE
LICENSED UNDER THE LAWS OF SUCH JURISDICTION.
NOTICE OF OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
AMERICAN NATIONAL CAN GROUP, INC.
AT
$18.00 NET PER SHARE
BY
REXAM ACQUISITION SUBSIDIARY INC.,
A WHOLLY OWNED INDIRECT SUBSIDIARY OF
REXAM PLC
Rexam Acquisition Subsidiary Inc., a Delaware corporation (the "Purchaser")
and a wholly owned indirect subsidiary of Rexam PLC ("Parent"), a public limited
company organized under the laws of England and Wales, is offering to purchase
all outstanding shares of Common Stock, par value $0.01 per share (the
"Shares"), of American National Can Group, Inc., a Delaware corporation (the
"Company"), at $18.00 per Share, net to the seller in cash, without interest
thereon, upon the terms and subject to the conditions set forth in the Offer to
Purchase dated April 10, 2000, and in the related Letter of Transmittal (which,
together with any amendments or supplements thereto, collectively constitute the
"Offer"). Tendering stockholders who have Shares registered in their names and
who tender directly to Citibank, N.A. (the "Depositary") will not be obligated
to pay brokerage fees or commissions or, except as set forth in the Letter of
Transmittal, transfer taxes on the purchase of Shares by the Purchaser pursuant
to the Offer. Stockholders who hold their Shares through a broker or bank should
consult with such institution as to whether it charges any service fees. The
purpose of the Offer is to acquire for cash as many outstanding Shares as
possible as a first step in acquiring the entire equity interest in the Company.
Following the consummation of the Offer, the Purchaser intends to effect the
Merger (as defined below).
- --------------------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME, ON FRIDAY, MAY 5, 2000, UNLESS THE OFFER IS EXTENDED.
- --------------------------------------------------------------------------------
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (1) THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION DATE (AS DEFINED BELOW) THAT
NUMBER OF SHARES WHICH WOULD CONSTITUTE AT LEAST A MAJORITY OF THE OUTSTANDING
SHARES ON A FULLY DILUTED BASIS, (2) ANY WAITING PERIOD UNDER THE
HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF 1976, AS AMENDED, APPLICABLE TO
THE PURCHASE OF SHARES PURSUANT TO THE OFFER OR THE MERGER HAVING EXPIRED OR
BEEN TERMINATED, (3) THE EC COMMISSION HAVING DECLARED, IN TERMS, TAKEN TOGETHER
WITH THOSE IN CLAUSE (4) (B) BELOW, THAT ARE NOT MATERIALLY COMMERCIALLY
UNREASONABLE IN THE AGGREGATE, THAT THE CONCENTRATION IS COMPATIBLE WITH THE
EUROPEAN COMMON MARKET, (4) IN THE EVENT THAT A REQUEST HAS BEEN MADE BY ONE OR
MORE EUROPEAN UNION OR EUROPEAN FREE TRADE AREA STATES, (A) THE EUROPEAN
COMMISSION HAVING INDICATED THAT IT DOES NOT INTEND TO REFER THE PROPOSED
ACQUISITION, OR ANY ASPECT THEREOF, TO A COMPETENT AUTHORITY OF SUCH STATE OR
(B) IF SUCH REFERRAL IS MADE, THE STATE(S) HAVING RESOLVED THEIR INVESTIGATIONS,
IN TERMS, TAKEN TOGETHER WITH THOSE IN CLAUSE (3) ABOVE, THAT ARE NOT MATERIALLY
COMMERCIALLY UNREASONABLE IN THE AGGREGATE, OR ANY APPLICABLE WAITING PERIOD(S)
HAVING EXPIRED, (5) THE APPROVAL OF THE MERGER AGREEMENT, THE OFFER AND THE
MERGER BY THE SHAREHOLDERS OF PARENT AND (6) THE RECEIPT OF OTHER REQUISITE
MATERIAL REGULATORY AND ANTITRUST CLEARANCES.
The Offer is being made pursuant to the Agreement and Plan of Merger dated
as of March 31, 2000 (the "Merger Agreement"), among Parent, the Purchaser and
the Company pursuant to which, following the consummation of the Offer and the
satisfaction or waiver of certain conditions, the Purchaser will be merged with
and into the Company, with the Company surviving the merger as a wholly owned
indirect subsidiary of Parent (the "Merger"). At the effective time of the
Merger, each outstanding Share (other than Shares owned by Parent, the Purchaser
or the Company or any subsidiary of Parent or the Company or by stockholders, if
any, who are entitled to and properly exercise appraisal rights under Delaware
law), will be converted into the right to receive the price per Share paid
pursuant to the Offer in cash, without interest, as set forth in the Merger
Agreement and described in the Offer to Purchase. The Merger Agreement provides
that the Purchaser may assign any or all of its rights and obligations
(including the right to purchase Shares in the Offer) to Parent or any direct or
indirect wholly owned subsidiary of Parent, but no such assignment shall relieve
the Purchaser of its obligations under the Merger Agreement.
Simultaneously with entering into the Merger Agreement, Parent and Pechiney
(the "Principal Stockholder") entered into the Stockholders Agreement dated as
of March 31, 2000 (the "Stockholders Agreement"), whereby the Principal
Stockholder has agreed, among other things, to tender its Shares pursuant to the
Offer. The Principal Stockholder owns approximately 45% of all outstanding
Shares. The Merger Agreement and the Stockholders Agreement are more fully
described in the Offer to Purchase.
THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY APPROVED THE OFFER
AND THE MERGER AND DETERMINED THAT THE TERMS OF THE OFFER AND THE MERGER ARE
ADVISABLE, FAIR TO, AND IN THE BEST INTERESTS OF, THE STOCKHOLDERS OF THE
COMPANY AND UNANIMOUSLY RECOMMENDS THAT STOCKHOLDERS OF THE COMPANY ACCEPT THE
OFFER AND TENDER THEIR SHARES.
For purposes of the Offer, the Purchaser will be deemed to have accepted
for payment pursuant to the Offer and thereby purchased, Shares properly
tendered to the Purchaser and not properly withdrawn as, if and when the
Purchaser gives oral or written notice to the Depositary of the Purchaser's
acceptance for payment of such Shares. Upon the terms and subject to the
conditions of the Offer, payment for Shares accepted for payment pursuant to the
Offer will be made by deposit of the purchase price therefor with the
Depositary, which will act as agent for tendering stockholders for the purpose
of receiving payment from the Purchaser and transmitting payment to tendering
stockholders. In all cases, payment for Shares accepted for payment pursuant to
the Offer will be made only after timely receipt by the Depositary of (a) the
certificates for such Shares or timely confirmation of book-entry transfer of
such shares into the Depositary's account at the Book-Entry Transfer Facility
(as defined in the Offer to Purchase) pursuant to the procedures set forth in
Section 2 of the Offer to Purchase, (b) a Letter of Transmittal (or a facsimile
thereof), properly completed and duly executed, with any required signature
guarantees or, in the case of a book-entry transfer, an Agent's Message (as
defined in the Offer to Purchase) and (c) any other documents required by the
Letter of Transmittal. UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID ON THE
PURCHASE PRICE OF THE SHARES TO BE PAID BY THE PURCHASER, REGARDLESS OF ANY
EXTENSION OF THE OFFER OR ANY DELAY IN PAYING FOR SUCH SHARES.
The term "Expiration Date" means 12:00 midnight, New York City time, on
Friday, May 5, 2000, unless and until the Purchaser, in its sole discretion (but
subject to the terms of the Merger Agreement), shall have extended the period of
time during which the Offer is open, in which event the term "Expiration Date"
shall mean the latest time and date at which the Offer, as so extended by the
Purchaser, will expire. The Purchaser may, without the consent of the Company,
and expressly reserves the right to, extend the Offer, and thereby delay
acceptance for payment of, and the payment for, any Shares, by giving oral or
written notice of such extension to the Depositary, (a) for one or more periods
of time that the Purchaser reasonably believes are necessary to cause the
conditions of the Offer in the Merger Agreement to be satisfied, if at the
Expiration Date any of the conditions to the Purchaser's obligation to purchase
Shares are not satisfied, until such time as such conditions are satisfied or
waived or (b) for any period required by any rule, regulation, interpretation or
position of the Securities Exchange Commission (the "Commission") or the staff
thereof applicable to the Offer. If all of the conditions to the Offer are not
satisfied on the Expiration Date then the Purchaser will extend the Offer for
one or more periods of time that the Purchaser reasonably believes are necessary
to cause the conditions of the Offer to be satisfied from time to time until
such conditions are satisfied or waived; PROVIDED that the Purchaser shall not
be required to extend the Offer beyond October 25, 2000. Any such extension will
be followed by a public announcement thereof no later than 9:00 a.m., New York
City time, on the next business day after the previously scheduled Expiration
Date. During any such extension, all Shares previously tendered and not
withdrawn will remain subject to the Offer, subject to the right of a tendering
stockholder to withdraw such stockholder's Shares.
Except as otherwise provided below, tenders of Shares are irrevocable.
Shares tendered pursuant to the Offer may be withdrawn pursuant to the
procedures set forth below at any time prior to the Expiration Date and, unless
theretofore accepted for payment and paid for by the Purchaser pursuant to the
Offer, may also be withdrawn at any time after Thursday, June 8, 2000. For a
withdrawal to be effective, a written or facsimile transmission notice of
withdrawal must be timely received by the Depositary at one of its addresses set
forth on the back cover of the Offer to Purchase and must specify the name of
the person having tendered the Shares to be withdrawn, the number of Shares to
be withdrawn and the name of the registered holder of the Shares to be
withdrawn, if different from the name of the person who tendered the Shares. If
certificates for Shares have been delivered or otherwise identified to the
Depositary, then prior to the physical release of such certificates, the serial
numbers shown on such certificates must be submitted to the Depositary and,
unless such Shares have been tendered by an Eligible Institution (as defined in
the Offer to Purchase), any and all signatures on the notice of withdrawal must
be guaranteed by an Eligible Institution. If Shares have been delivered pursuant
to the procedure for book-entry transfer as set forth in Section 2 of the Offer
to Purchase, any notice of withdrawal must also specify the name and number of
the account at the Book-Entry Transfer Facility to be credited with the
withdrawn Shares and otherwise comply with the Book-Entry Transfer Facility's
procedures. Withdrawals of tenders of Shares may not be rescinded, and any
Shares properly withdrawn will thereafter be deemed not validly tendered for
purposes of the Offer. However, withdrawn shares may be retendered by again
following one of the procedures described in Section 2 of the Offer to Purchase
at any time prior to the Expiration Date. Under the Merger Agreement and
pursuant to Rule 14d-11 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), the Purchaser
may, subject to certain conditions, elect to provide a subsequent offering
period following the Expiration Date. The Purchaser does not currently intend to
provide a subsequent offering period in the Offer, although it reserves the
right to do so in its sole discretion. Under the Exchange Act, no withdrawal
rights apply to Shares tendered during a subsequent offering period and no
withdrawal rights apply during the subsequent offering period with respect to
Shares tendered in the Offer and accepted for payment. See Section 1 of the
Offer to Purchase. All questions as to the form and validity (including time of
receipt) of notices of withdrawal will be determined by the Purchaser, in its
sole discretion, which determination will be final and binding. None of the
Purchaser, Parent, the Company, the Depositary, the Information Agent, the
Dealer Manager or any other person will be under any duty to give notification
of any defects or irregularities in any notice of withdrawal or incur any
liability for failure to give any such notification.
The Company has provided the Purchaser with the Company's stockholder lists
and security position listings for the purpose of disseminating the Offer to
holders of Shares. The Offer to Purchase and the related Letter of Transmittal
and other relevant materials will be mailed to record holders of Shares and
furnished to brokers, dealers, banks, trust companies and similar persons whose
names, or the names of whose nominees, appear on the Company's stockholder
lists, or, if applicable, who are listed as participants in a clearing agency's
security position listing, for subsequent transmittal to beneficial owners of
Shares.
The receipt of cash in exchange for shares pursuant to the Offer or the
Merger will be a taxable transaction for U.S. federal income tax purposes and
may also be a taxable transaction under applicable state, local or foreign tax
laws. In general, a stockholder who receives cash in exchange for Shares
pursuant to the Offer or the Merger will recognize gain or loss for U.S. federal
income tax purposes equal to the difference, if any, between the amount of cash
received and such stockholder's adjusted tax basis in the Shares exchanged
therefor. Provided that such Shares constitute capital assets in the hands of
the stockholder, such gain or loss will be capital gain or loss, and will be
long-term capital gain or loss if the holder has held the Shares for more than
one year at the time of sale. The maximum U.S. federal income tax rate
applicable to individual taxpayers on long-term capital gains is 20%, and the
deductibility of capital losses is subject to limitations. All stockholders
should consult with their own tax advisors as to the particular tax consequences
of the Offer and the Merger to them, including the applicability and effect of
the alternative minimum tax and any state, local or foreign income and other tax
laws and of changes in such tax laws. For a more complete description of certain
U.S. federal income tax consequences of the Offer and the Merger see Section 5
of the Offer to Purchase.
The Purchaser expressly reserves the right to waive any condition to the
Offer or modify the terms of the Offer, subject to (a) the terms of the Merger
Agreement, which contain certain conditions that may not be waived and
modifications that may not be made without the consent of the Company, and (b)
the rules and regulations of the Commission.
The information required to be disclosed by paragraph (d)(1) of Rule 14d-6
of the General Rules and Regulations under the Exchange Act is contained in the
Offer to Purchase and is incorporated herein by reference.
THE OFFER TO PURCHASE AND LETTER OF TRANSMITTAL CONTAIN IMPORTANT
INFORMATION AND SHOULD BE READ CAREFULLY AND IN THEIR ENTIRETY BEFORE ANY
DECISION IS MADE WITH RESPECT TO THE OFFER.
Questions and requests for assistance may be directed to the Information
Agent or the Dealer Manager, as set forth below. Requests for copies of the
Offer to Purchase, the Letter of Transmittal and all other tender offer
materials may be directed to the Information Agent as set forth below, or
brokers, dealers, banks, trust companies or other nominees, and copies will be
furnished promptly at the Purchaser's expense. No fees or commissions will be
payable to brokers, dealers or other persons (other than the Dealer Manager) for
soliciting tenders of Shares pursuant to the Offer.
THE INFORMATION AGENT FOR THE OFFER IS:
D. F. KING & CO., INC.
77 Water Street
New York, New York 10005
Banks and Brokers Call Collect: (212) 269-5550
ALL OTHERS CALL TOLL FREE: (800) 290-6428
THE DEALER MANAGER FOR THE OFFER IS:
SALOMON SMITH BARNEY
388 Greenwich Street
New York, New York 10013
Call Toll Free: (877) 820-8015
April 10, 2000
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT (b)
AGREEMENT
DATED 3rd April, 2000
US$1,600,000,000 and euro 2,000,000,000
CREDIT FACILITY
FOR
REXAM PLC
ARRANGED BY
ABN AMRO BANK N.V.
BANQUE NATIONALE DE PARIS
CITIBANK, N.A.
CREDIT SUISSE FIRST BOSTON
HSBC INVESTMENT BANK plc
LLOYDS TSB CAPITAL MARKETS
WESTDEUTSCHE LANDESBANK GIROZENTRALE
For Rexam PLC For the Finance Parties
Allen & Overy Clifford Chance
ALLEN & OVERY
London
BK:733880.10
<PAGE>
INDEX
<TABLE>
<CAPTION>
CLAUSE PAGE
<S> <C>
1. Interpretation.......................................................1
2. The Facilities......................................................21
3. Purpose.............................................................22
4. Conditions precedent................................................22
5. Loans...............................................................22
6. Drawing of Bills....................................................24
7. Bills...............................................................25
8. Repayment...........................................................27
9. Prepayment and cancellation.........................................27
10. Interest Periods....................................................30
11. Interest............................................................31
12. Alternative Currencies..............................................34
13. Amount of Alternative Currencies....................................35
14. Payments............................................................35
15. Taxes...............................................................37
16. Market disruption...................................................39
17. Increased costs.....................................................41
18. Illegality..........................................................42
19. Guarantee...........................................................43
20. Representations and warranties......................................45
21. Undertakings........................................................47
22. Default.............................................................52
23. The Agent and the Arrangers.........................................54
24. Fees................................................................59
25. Expenses............................................................60
26. Stamp duties........................................................60
27. Indemnities.........................................................61
28. Evidence and calculations...........................................62
29. Amendments and waivers..............................................62
30. Changes to the Parties..............................................63
31. Disclosure of information...........................................67
32. Set-off.............................................................68
33. Pro rata sharing....................................................68
34. Severability........................................................69
35. Counterparts........................................................69
36. Notices.............................................................70
37. Language............................................................71
38. Jurisdiction........................................................71
39. Governing law.......................................................72
<PAGE>
SCHEDULES
1. Banks and Commitments..............................................73
Part I - Banks and Commitments - Term Loan Facility................73
Part II - Banks and Commitments - Revolving Credit Facility........73
2. Conditions Precedent Documents.....................................74
Part I - To be delivered on or about signing.......................74
Part II - To be delivered before the first Utilisation.............75
Part III - To be delivered by an Additional Guarantor..............76
3. Calculation of the Mandatory Cost..................................77
4. Form of Request....................................................79
5. Forms of Accession Documents.......................................80
Part I - Novation Certificate......................................80
Part II - Borrower Accession Agreement.............................82
Part III - Guarantor Accession Agreement...........................83
6. Form of Bill.......................................................84
7. Form of Compliance Certificate.....................................85
8. Form of Margin Certificate.........................................86
9. Form of Power of Attorney for Bills................................87
SIGNATORIES.................................................................89
</TABLE>
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THIS AGREEMENT is dated 3rd April, 2000 between:
(1) REXAM PLC (the "COMPANY");
(2) ABN AMRO BANK N.V., BANQUE NATIONALE DE PARIS, CITIBANK, N.A., CREDIT
SUISSE FIRST BOSTON, HSBC INVESTMENT BANK plc, LLOYDS TSB CAPITAL
MARKETS and WESTDEUTSCHE LANDESBANK GIROZENTRALE as arrangers (in this
capacity the "ARRANGERS");
(3) THE FINANCIAL INSTITUTIONS listed in Schedule 1 as banks (the "BANKS");
and
(4) LLOYDS TSB BANK plc as agent (in this capacity the "AGENT").
IT IS AGREED as follows:
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ACCEPTANCE COMMISSION RATE"
means, subject to Clause 11.5 (Adjustment of the Margin and Acceptance
Commission Rate), 0.95 per cent. per annum.
"ADDITIONAL BORROWER"
means, subject to Clause 30.8 (Cessation of Obligors), a member of the
Group which becomes a Borrower in accordance with Clause 30.4
(Additional Borrowers).
"ADDITIONAL GUARANTOR"
means, subject to Clause 30.8 (Cessation of Obligors), a member of the
Group which becomes a Guarantor in accordance with Clause 30.5
(Additional Guarantors).
"AFFILIATE"
means a Subsidiary or a Holding Company of a person or any other
Subsidiary of that Holding Company.
"AGENT'S SPOT RATE OF EXCHANGE"
means the Agent's spot rate of exchange for the purchase of the
relevant Alternative Currency in the London foreign exchange market
with the relevant Base Currency at the relevant time on a particular
day.
"ALTERNATIVE CURRENCY"
means:
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(a) in the case of the Tranche A Facility, Sterling, euros or any
other currency (other than U.S. Dollars) which is for the time
being freely transferable and convertible into U.S. Dollars
and deposits of which are readily available in the London
interbank market; or
(b) in the case of the Tranche B Facility, Sterling, U.S. Dollars
or any other currency (other than euros) which is for the time
being freely transferable and convertible into euros and
deposits of which are readily available in the London
interbank market.
"BALANCE SHEET"
means, at any time, the latest published audited annual consolidated
balance sheet of the Company or the balance sheet in the latest
published interim consolidated accounts of the Company.
"BASE CURRENCY"
means, for the Tranche A Facility, U.S. Dollars or, for the Tranche B
Facility, euros.
"BILL"
means a Sterling bill of exchange substantially in the form of Schedule
6.
"BORROWED MONIES"
means the following, except in so far as otherwise taken into account:
(a) the nominal amount of any issued share capital and the
principal amount of any debentures, moneys borrowed or other
indebtedness (together in each case with any fixed or minimum
premium payable on final repayment) of any person the legal
and beneficial interest whereof is not for the time being
owned by a member of the Group and the payment or repayment of
which is guaranteed or secured or is the subject of an
indemnity or covenant to pay given by a member of the Group;
(b) the principal amount (together with any fixed or minimum
premium payable on final repayment) of any debenture (whether
secured or unsecured) of a member of the Group owned otherwise
than by another member of the Group and whether issued for
cash or otherwise;
(c) the principal amount raised by acceptances under any
acceptance credit granted by any bank or accepting house other
than acceptances solely relating to the purchase or sale of
goods in the ordinary course of trading;
(d) the capitalised element of any finance leases of any member of
the Group, as determined in accordance with the accounting
principles applied in connection with the preparation of the
Balance Sheet of the Group; and
(e) for the purposes of Clause 22.1(d) (Events of Default) only,
any indebtedness in respect of any hedging transaction,
including any currency or interest rate swap or forward
exchange contract, futures and other derivatives of a member
of the Group,
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and the amount of indebtedness in respect of the transaction
will be the net exposure (meaning the amount payable by the
party liable under the transaction on termination or closing
out of those arrangements as determined on a mark to market
basis);
but:
(i) moneys borrowed by a member of the Group for the purpose of
repaying (or enabling another member of the Group to repay)
within six months of such date the whole or part of Borrowed
Monies of itself or another member of the Group owing
otherwise than to another member of the Group and for the time
being outstanding (including any fixed or minimum premium
payable on final repayment) shall pending their application
for such purpose within such period be deemed (except for the
purposes of Clause 22.1(d) (Events of Default)) not to be
Borrowed Monies;
(ii) that proportion of the moneys borrowed (owing otherwise than
to any other member of the Group) of any partly owned
Subsidiary of the Company which is equivalent to the
proportion of its ordinary share capital not attributable to
the Company shall be deemed not to be Borrowed Monies but only
to the extent that an amount equivalent to such proportion
exceeds moneys borrowed (if any) from such partly owned
Subsidiary by the Company or another Subsidiary of the
Company;
(iii) moneys borrowed by a member of the Group for the purpose of
financing any contract in respect of which part of the price
receivable is guaranteed by the Export Credits Guarantee
Department or by any institution approved by the Agent
carrying on similar business, not exceeding that part of the
price which is so guaranteed, shall be deemed not to be
Borrowed Monies; and
(iv) only the net amount outstanding (after taking into account any
credit balances) of monies borrowed and outstanding in
connection with any cash management scheme operated by the
Group shall be included.
Borrowed Monies expressed in a currency other than Sterling shall be converted
into Sterling as follows:
(1) as regards such Borrowed Monies outstanding at the date of the
Balance Sheet at the rates of exchange adopted for the purpose
of that
Balance Sheet;
(2) as regards such Borrowed Monies outstanding at the date of and
converted into Sterling for the purpose of inclusion in the
then latest audited balance sheet of an unconsolidated
subsidiary of the Company at the rates of exchange adopted for
such purpose; and
(3) as regards other such Borrowed Monies either at the rates of
exchange current at the date of the Balance Sheet of the
Company or the balance sheet of the relevant Subsidiary, as
the case may be, or, if in the case of a Subsidiary there is
no such balance sheet, at the rates of exchange current at the
date of the Balance Sheet of the Company. For the purposes of
this sub-paragraph (3) the rate of exchange for any currency
shall be deemed to be the spot rate of the Agent for the
exchange of the relevant currency into Sterling at 11.00 a.m.
on the relevant day.
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"BORROWER"
means the Company or an Additional Borrower.
"BORROWER ACCESSION AGREEMENT"
means a letter substantially in the form of Part II of Schedule 5 with
such amendments as the Agent and the Company may agree.
"BUSINESS DAY"
means a day (other than a Saturday or Sunday) on which banks are open
for general business (other than operation only of business in euros)
in:
(a) London; and
(b) if a payment is required in U.S. Dollars, New York City; and
(c) if a payment is required in an Alternative Currency (other
than Sterling, U.S. Dollars or euros), the principal financial
centre of the country of that Alternative Currency,
and, if a payment is required in euros, that day is also a TARGET
Business Day.
"CLEAN UP PERIOD"
means the period from the date of this Agreement to the date falling
four months after the Merger Date.
"COMMITMENT"
means a Tranche A Commitment or a Tranche B Commitment.
"COMMITMENT PERIOD"
means the Tranche A Commitment Period or the Tranche B Commitment
Period.
"COMPLIANCE CERTIFICATE"
means a certificate substantially in the form of Schedule 7.
"DANGEROUS SUBSTANCES"
means any radioactive emissions and any natural or artificial substance
(whether in solid or liquid form or in the form of a gas or vapour),
the generation, transportation, storage, treatment, use or disposal of
which (whether alone or in combination with any other substance) gives
a risk of causing harm to man or any other living organism or damaging
in any material respect the Environment or public health or welfare,
including, but not limited to, any controlled, special, hazardous,
toxic, radioactive or dangerous waste.
"DEFAULT"
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means an Event of Default or a Potential Event of Default.
"DOUBLE TAXATION TREATY"
means any convention between the government of the United Kingdom and
any other government for the avoidance of double taxation and the
prevention of fiscal evasion with respect to taxes on income and
capital gains.
"EBDR"
means the rate (as quoted by the Agent at or about 10.30 a.m. on the
Utilisation Date for a Bill) at which Eligible Bills of an equivalent
tenor can be discounted in the London discount market at or about that
time.
"EBITA"
means, in respect of each Ratio Period, the total operating profit of
the Group for continuing operations, acquisitions (as a component of
continuing operations) and discontinued operations, but adding back, in
each case, any operating exceptional losses and amortised goodwill and
deducting any operating exceptional profits included within that
figure. EBITA shall be calculated by reference to the most recent
annual or interim consolidated accounts of the Company delivered to the
Agent under Clause 21.2 (Information) or, for the purposes of Clauses
11.5 (Adjustment of the Margin and Acceptance Commission Rate) and 24.3
(Commitment fee), the Company's quarterly management information for
the Group to the extent reflected in the Margin Certificate, but
further adjusted (where appropriate) for the pro forma effect of
acquisitions and disposals during the relevant Ratio Period.
"EBITDA"
means, in respect of each Ratio Period, EBITA adjusted (without double
counting) for depreciation included within that figure. EBITDA shall be
calculated by reference to the most recent annual or interim
consolidated accounts of the Company delivered to the Agent under
Clause 21.2 (Information) or, for the purposes of Clauses 11.5
(Adjustment of the Margin and Acceptance Commission Rate) and 24.3
(Commitment fee), the Company's quarterly management information for
the Group to the extent reflected in the Margin Certificate, but
further adjusted (where appropriate) for the pro forma effect of
acquisitions and disposals during the relevant Ratio Period.
"ELIGIBLE BILL"
means a Sterling bill of exchange eligible for rediscounting at the
Bank of England.
"ENCUMBRANCE"
means any mortgage, charge, assignment, pledge, lien or other
encumbrance, but shall not include any encumbrance arising out of any
title retention provision contained in any contract for the purchase of
goods entered into in the ordinary course of business, liens arising by
operation of law, encumbrances over cash and transactions involving the
disposal of an asset on terms whereby it is leased to or reacquired or
acquired by the disposer or any of its related
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entities.
"ENVIRONMENT"
means any of the following media, the air (including, without
limitation, the air within buildings and the air within other natural
or man-made structures above or below ground), water (including,
without limitation, ground and surface water) and land (including,
without limitation, surface and sub-surface soil).
"ENVIRONMENTAL LAW"
means any common or statutory law, regulation, code of practice,
circular, guidance note and the like (whether or not having the force
of law but in respect of which compliance is customary) concerning the
protection of human health, any living organism, the workplace or the
Environment or Dangerous Substances.
"EU ANTI-TRUST CLEARANCE"
means:
(a) the EC Commission declaration, in terms which the Company
considers are materially commercially reasonable in the
aggregate, that the concentration is compatible with the
common market pursuant to Articles 6(1) (b) or Article 8(2) of
Council Regulation (EEC) no. 4064/89 (as amended by Council
Regulation (EC) No. 1310/97) (the "REGULATION"); and
(b) in the event that a request under Article 9(2) of that
Regulation has been made by one or more European Union or EFTA
states, (A) the European Commission indication, in terms
satisfactory to the Company, that it does not intend to refer
the proposed acquisition, or any aspect of it, to a competent
authority of such state in accordance with Article 9 of that
Regulation or (B) if such referral is made, the state(s) shall
have resolved their investigations, in terms which the Company
considers are materially commercially reasonable in the
aggregate, or any applicable waiting period(s) shall have
expired."
"EURIBOR"
means in relation to any Loan in euros:
(a) the applicable Screen Rate; or
(b) if no Screen Rate is available for the relevant period, the
arithmetic mean of the rates (rounded upwards to four decimal
places) as supplied to the Agent at its request quoted by the
Reference Banks to leading banks in the European interbank
market,
at or about 11.00 a.m. Brussels time on the Rate Fixing Day for the
offering of deposits in euros for a period comparable to the relevant
Interest Period.
"EURO"
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means the single currency of the Participating Member States.
"EVENT OF DEFAULT"
means an event specified as such in Clause 22.1 (Events of Default).
"EXISTING FACILITIES"
means:
(a) the euro 800,000,000 credit facility dated 2nd December, 1998
of the Company arranged by ABN AMRO Bank N.V., HSBC Investment
Bank plc and Lloyds Bank Plc; and
(b) all committed bilateral facilities of the Company existing
immediately prior to the Merger Date.
"EXTERNAL NET BORROWINGS"
means, at any time, Borrowed Monies of all members of the Group (other
than Obligors) less:
(a) Investments of any member of the Group (other than Obligors)
at that time or any Investment issued by or guaranteed by any
member of the Group (other than Obligors); and
(b) Borrowed Monies of a company which becomes a Subsidiary of the
Company after the date of this Agreement for a period of six
months from the date it becomes a Subsidiary of the Company,
so long as the principal amount outstanding of Borrowed Monies
of that company does not exceed the maximum amount of Borrowed
Monies capable of being incurred by that company on the date
it becomes a Subsidiary of the Company.
"FACILITY"
means the Tranche A Facility or the Tranche B Facility and "FACILITIES"
means both of them.
"FACILITY OFFICE"
means the office(s) notified by a Bank to the Agent:
(a) on or before the date it becomes a Bank; or
(b) by not less than five Business Days' notice,
as the office(s) through which it will perform all or any of its
obligations under this Agreement.
"FEE LETTER"
means a letter dated the date of this Agreement between the Arrangers
and the Company or
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the Agent and the Company setting out the amount of various fees
referred to in Clause 24 (Fees).
"FINAL MATURITY DATE"
means:
(a) in the case of the Tranche A Facility:
(i) if the Term-Out Option has not been exercised, the
date falling 364 days from the date of this
Agreement; or
(ii) if the Term-Out Option has been exercised, the date
falling no later than 30 months from the date of this
Agreement; and
(b) in the case of the Tranche B Facility, the fifth anniversary
of the date of this Agreement.
"FINANCE DOCUMENT"
means:
(a) this Agreement;
(b) a Bill;
(c) a Novation Certificate;
(d) a Fee Letter;
(e) a Borrower Accession Agreement;
(f) a Guarantor Accession Agreement;
(g) the Syndication Side-Letter;
(h) a Syndication Agreement; or
(i) any other document designated as such by the Agent and the Company.
"FINANCE PARTY"
means an Arranger, a Bank or the Agent.
"GROUP"
means the Company and its Subsidiaries other than the Russian JV.
"GUARANTOR"
means the Company or an Additional Guarantor.
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"GUARANTOR ACCESSION AGREEMENT"
means a letter substantially in the form of Part III of Schedule 5 with
such amendments as the Agent and the Company may agree.
"HOLDING COMPANY"
has the meaning given to it in Section 736 of the Companies Act 1985.
"INFORMATION MEMORANDUM"
means any information memorandum to be prepared by or on behalf of the
Company in connection with syndication of the Facilities.
"INTEREST PAYABLE"
means all interest, acceptance commission and other continuing, regular
or periodic costs, charges and expenses in the nature of interest
(whether paid, payable or capitalised but excluding any front-end fees
payable in connection with this Agreement and capitalised interest
treated as a development cost for a project in accordance with the
accounting policies applied in connection with the Original Group
Accounts) incurred by the Group during a Ratio Period, all as
calculated by reference to the most recent annual or interim
consolidated accounts of the Company delivered to the Agent under
Clause 21.2 (Information).
"INTEREST PERIOD"
means each period determined in accordance with Clause 10 (Interest
Periods).
"INVESTMENTS"
means:
(a) any cash in hand or cash at bank to the extent that it is
freely remittable to the U.K. or can lawfully be applied
against Borrowed Monies;
(b) short term deposits and money at call with a recognised bank
or financial institution to the extent that it is freely
remittable to the U.K. or can lawfully be applied against
Borrowed Monies;
(c) deposits made with the Commissioners of Inland Revenue in
respect of which certificates of tax deposits have been issued
by Her Majesty's Treasury;
(d) the face amount of certificates of deposit issued by a bank or
financial institution;
(e) the book value of Sterling bills of exchange eligible for
rediscount at the Bank of England;
(f) any other negotiable money market instrument with a maximum
maturity of 12 months or less with ratings of at least A1
granted by Standard & Poor's Corporation and P1 granted by
Moody's Investors Services Inc. respectively (or, if a rating
is
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granted by only one of these agencies, either at least A1
granted by Standard & Poor's Corporation or P1 granted by
Moody's Investors Services Inc.); and
(g) marketable debt securities issued by a sovereign entity with a
rating of at least AA by Standard & Poor's Corporation or at
least Aa2 by
Moody's Investors Services Inc.
"LIBOR"
means:
(a) the applicable Screen Rate; or
(b) if no Screen Rate is available for the relevant currency and
period, the arithmetic mean (rounded upward to four decimal
places) of the rates, as supplied to the Agent at its request,
quoted by the Reference Banks to leading banks in the London
interbank market,
at or about 11.00 a.m. on the applicable Rate Fixing Day for the
offering of deposits in the currency of the relevant Loan for a period
comparable to its relevant Interest Period.
"LOAN"
means, subject to Clauses 10 (Interest Periods) and 12 (Alternative
Currencies), the principal amount of each borrowing by a Borrower under
this Agreement or the principal amount outstanding of that borrowing,
being either a Revolving Credit Loan or a Term Loan.
"MAJORITY BANKS"
means, at any time:
(a) if any Utilisation is outstanding, Banks with an aggregate
outstanding Original Currency Amount of participations in
Loans and Bills plus undrawn Commitments at that time of more
than 66 2/3 per cent. of the aggregate Original Currency
Amount of all Utilisations then outstanding plus the aggregate
of the then undrawn Commitments of all the Banks; or
(b) if no Utilisation is outstanding, Banks whose Commitments then
aggregate more than 66 2/3 per cent. of the Total Commitments
(or, if the Total Commitments have been reduced to zero,
aggregated more than 66 2/3 per cent. of the Total Commitments
immediately before the reduction).
For this purpose, if there are Utilisations and/or Commitments
outstanding under both Tranche A and Tranche B the Original Currency
Amount of all Utilisations, and the amount of all Commitments, under
Tranche A will be translated into euros at the Agent's Spot Rate of
Exchange on the relevant date of determination.
"MANDATORY COST"
means the cost imputed to the Banks of compliance with certain
requirements of the Bank of England and/or the banking supervision or
other costs of the Financial Services Authority as
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determined in accordance with Schedule 3.
"MARGIN"
means:
(a) in respect of Loans under the Tranche A Facility, 1.00 per
cent. per annum; and
(b) in respect of Loans under the Tranche B Facility, subject to
Clause 11.5 (Adjustment of the Margin and Acceptance
Commission Rate), 0.95 per cent. per annum.
"MARGIN CERTIFICATE"
means a certificate substantially in the form of Schedule 8.
"MATERIAL ADVERSE EFFECT"
means a material adverse effect on:
(a) the ability of the Obligors (taken as a whole) to perform
their payment obligations under the Finance Documents; or
(b) the ability of the Company to perform and comply with its
obligations under Clause 21.9 (Financial covenants).
"MATURITY DATE"
means the last day of the term of a Bill.
"MERGER"
means the merger of a subsidiary of the Company with and into the
Target in accordance with the terms of the Merger Agreement.
"MERGER AGREEMENT"
means the agreement and plan of merger dated as of March, 2000 between
the Target, a subsidiary of the Company and the Company.
"MERGER DATE"
means the date on which the Merger becomes effective pursuant to the
terms of the Merger Agreement.
"NET ASSETS"
means, at any time, the gross assets of the Group less the liabilities
of the Group at that time, each as determined in accordance with
generally accepted accounting principles in the United Kingdom, as
calculated by reference to the most recent annual or interim
consolidated accounts of the Company delivered to the Agent under
Clause 21.2 (Information).
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"NET DEBT"
means, at the end of a Ratio Period, Borrowed Monies of all members of
the Group less Investments of all members of the Group, as calculated
by reference to the most recent annual or interim consolidated accounts
of the Company delivered to the Agent under Clause 21.2 (Information)
or, for the purposes of Clause 11.5 (Adjustment of the Margin and
Acceptance Commission Rate) and Clause 24.3 (Commitment fee), the
Company's quarterly management information for the Group to the extent
reflected in the Margin Certificate.
"NET INTEREST PAYABLE"
means all Interest Payable by the Group during a Ratio Period minus all
interest or amounts in the nature of interest received or receivable
during that Ratio Period, all as calculated by reference to the most
recent annual or interim consolidated accounts of the Company delivered
to the Agent under Clause 21.2 (Information).
"NOVATION CERTIFICATE"
has the meaning given to it in Clause 30.3 (Procedure for novations).
"OBLIGOR"
means a Borrower or a Guarantor.
"ORIGINAL CURRENCY AMOUNT"
means for a Facility:
(a) the principal amount of a Loan denominated in the Base
Currency of that Facility; or
(b) the principal amount of a Revolving Credit Loan denominated in
any other currency other than the Base Currency of that
Facility or (if appropriate) a Bill translated into the Base
Currency of that Facility on the basis of the Agent's Spot
Rate of Exchange three Business Days before its Utilisation
Date; or
(c) in the case of a Term Loan denominated in any other currency
other than the Base Currency of that Facility, the equivalent
in the Base Currency of that Facility on the basis of the
Agent's Spot Rate of Exchange three Business Days before its
Utilisation Date.
"ORIGINAL GROUP ACCOUNTS"
means the audited consolidated accounts of the Group for the year ended
31st December, 1998.
"PARTICIPATING MEMBER STATE"
means a member state of the European Union that adopts a single
currency in accordance with the Treaty.
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"PARTY"
means a party to this Agreement.
"POTENTIAL EVENT OF DEFAULT"
means an event or circumstance which, with the giving of notice and
lapse of time as provided in Clause 22.1 (Events of Default), would be
likely to constitute an Event of Default.
"PRINCIPAL SUBSIDIARY"
means a Subsidiary of the Company (other than the Russian JV) at any
relevant date:
(a) whose net profits after taxation attributable to the Group for
the then last year or other period in respect of which
accounts of such Subsidiary have been audited (and as derived
by reference to such accounts) represent 10 per cent. or more
of the consolidated net profits after taxation and minority
interests of the Group for the then last year or other period
(or proportionately if the then last accounting period of the
relevant Subsidiary shall have been for a shorter period than
the then last year or other period of the Group) in respect of
which consolidated accounts of the Company shall have been
audited; or
(b) whose gross assets as shown by the then latest audited
accounts of such Subsidiary represent 10 per cent. or more of
the consolidated gross assets of the Group as derived by
reference to the then last audited consolidated accounts of
the Company; or
(c) whose net assets as shown by the then latest audited accounts
of such Subsidiary represent 10 per cent. or more of the Net
Assets as derived by reference to the then last audited
consolidated accounts of the Company; or
(d) to which has been transferred (whether by one transaction or a
series of transactions, related or not) the whole or
substantially the whole of the assets of a Subsidiary of the
Company which immediately prior to those transactions was a
Principal Subsidiary.
However:
(i) a determination of whether a company which becomes a
Subsidiary of the Company after the date of this Agreement is
or is not a Principal Subsidiary may be made upon that company
becoming a Subsidiary of the Company by reference to its
latest audited accounts and the latest audited consolidated
accounts of the Company;
(ii) in the case of paragraph (d) above, the transferring
Subsidiary shall, upon the transferee Subsidiary becoming a
Principal Subsidiary, cease to be a Principal Subsidiary; and
(iii) the opinion of the auditors for the time being of the Company
that a Subsidiary of the Company is or is not a Principal
Subsidiary shall, in the absence of manifest error, be
conclusive and binding on the Parties.
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"PRESS RELEASE"
means the press release issued on behalf of the Company in relation to
the Merger.
"QUALIFYING BANK"
means a person which is:
(a) (i) a bank as defined in section 840A of the Income and
Corporation Taxes Act 1988; and
(ii) beneficially entitled, and within the charge, to U.K.
corporation tax for the purposes of section 349(3) of
the Income and Corporation Taxes Act 1988 as regards
any interest received by it under this Agreement; or
(b) a Tax Treaty Bank agreed to by the Company (at its discretion).
"RATE FIXING DAY"
means:
(a) the first day of an Interest Period for a Loan denominated in
Sterling;
(b) the second TARGET Business Day before the first day of an
Interest Period for a Loan denominated in euros;
(c) the second Business Day before the first day of an Interest
Period for a Loan denominated in any currency other than
Sterling or euros; or
(d) such other day as is generally treated as the rate fixing day
by market practice in the relevant interbank market for the
currency concerned, as notified by the Agent to the other
Parties by not less than 5 Business Days' notice.
"RATIO PERIOD"
means the preceding period of 12 months ending at the end of each
financial year and each financial half-year of the Group and, for the
purposes of Clause 11.5 (Adjustment of the Margin and Acceptance
Commission Rate) and Clause 24.3 (Commitment fee), each of the first
and third financial quarters of the Group.
"REFERENCE BANKS"
means, subject to Clause 30.6 (Reference Banks), the Agent, ABN AMRO
Bank N.V. and Credit Suisse First Boston.
"RELEVANT TAXES"
means any Tax imposed, levied or assessed by or on behalf of:
(a) the U.K.; or
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(b) any jurisdiction from or through which a relevant Obligor
makes any payment under the Finance Documents;
(c) any federation or organisation of which the U.K. or any
jurisdiction referred to in paragraph (b) is a member; or
(d) any political sub-division or authority of any of the above.
"REPAYMENT DATE"
means, in relation to a Revolving Credit Loan, the last day of its
Interest Period.
"REQUEST"
means a request made by a Borrower to utilise a Facility, substantially
in the form of Schedule 4.
"REVOLVING CREDIT LOAN"
means a Loan drawn down or to be drawn down under the Tranche A
Facility (other than a Term Loan) or under the Tranche B Facility.
"ROLLOVER UTILISATION"
means a requested Utilisation whose Original Currency Amount is equal
or less than an outstanding Utilisation and whose Utilisation Date
coincides with the Repayment Date or Maturity Date, as appropriate, of
that outstanding Utilisation.
"RUSSIAN JV"
means PLM Beverage Can Manufacturing Z.A.O. for so long as the Company
does not own directly or indirectly 90 per cent. or more of its issued
share capital.
"SCREEN RATE"
means:
(a) in relation to LIBOR, the average British Bankers Association
Interest Settlement Rate for the relevant currency and period;
and
(b) in relation to EURIBOR, the percentage rate per annum
determined by the Banking Federation of the European Union for
the relevant period,
displayed on the appropriate page of either the Telerate or Reuters
screen. If that page is replaced or service ceases to be available, the
Agent may specify another page or service displaying the appropriate
rate after consultation with the Company and the Banks.
"STERLING" or "L"
means the lawful currency for the time being of the U.K.
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"SUBSIDIARY"
means:
(a) a subsidiary within the meaning of section 736 of the
Companies Act 1985; and
(b) unless the context otherwise requires, a subsidiary
undertaking within the meaning of section 258 of the Companies
Act 1985.
"SYNDICATION AGREEMENT"
means an agreement between the then Parties and other banks and
financial institutions, substantially in the form set out in the
schedule to the Syndication Side-Letter, joining in those other banks
and financial institutions into this Agreement under either the
sub-underwriting or general syndication process.
"SYNDICATION SIDE-LETTER"
means the letter between the Company and the Arrangers, dated the date
of this Agreement, relating to primary syndication (which will comprise
both the sub-underwriting and general syndication processes).
"TARGET"
means American National Can Group, Inc.
"TARGET BUSINESS DAY"
means, in relation to a transaction involving euros, a day on which the
Trans-European Automated Real-time Gross Settlement Express System
(TARGET) is operating.
"TARGET EXISTING FACILITIES"
means the U.S.$650,000,000 five year revolving credit facility of the
Target and the U.S.$650,000,000 364 day credit facility of the Target
both dated 22nd July, 1999 (as subsequently amended or extended), and
arranged by The First National Bank of Chicago, The Chase Manhattan
Bank, ABN AMRO Bank N.V., Royal Bank of Canada, Banque Nationale de
Paris, Chase Securities Inc. and Banc One Capital Markets, Inc.
"TAX TREATY BANK"
means a person carrying on a bona fide banking business who:
(a) is resident (as that term is defined in the appropriate Double
Taxation Treaty) in a country with which the United Kingdom
has an appropriate Double Taxation Treaty giving residents of
that country full exemption from United Kingdom taxation on
interest; and
(b) does not carry on business in the United Kingdom through a
permanent establishment with which the indebtedness under this
Agreement in respect of which the interest is paid is
effectively connected.
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"TAXES"
includes all present and future income and other taxes, levies,
imposts, deductions and charges and withholdings whatsoever together
with interest thereon and penalties with respect thereto, if any, and
any payments made on or in respect thereof; "TAXATION" and "TAX" shall
be construed accordingly.
"TERM DATE"
means the Tranche A Term Date or the Tranche B Term Date.
"TERM LOAN"
means a Tranche A Loan made after the exercise of the Term-Out Option.
"TERM-OUT OPTION"
means the option of the Company in Clause 5.4 (Term-Out Option) to
convert the Tranche A Facility into a term loan facility.
"TOTAL COMMITMENTS"
means the aggregate of the Total Tranche A Commitments and the Total
Tranche B Commitments.
"TOTAL TRANCHE A COMMITMENTS"
means the aggregate of the Tranche A Commitments of all the Banks,
being U.S.$1,600,000,000 at the date of this Agreement.
"TOTAL TRANCHE B COMMITMENTS"
means the aggregate of the Tranche B Commitments of all the Banks,
being euro 2,000,000,000 at the date of this Agreement.
"TRANCHE A COMMITMENT"
means:
(a) in relation to a Bank which is a Bank on the date of this
Agreement, the amount in U.S. Dollars set opposite its name in
Part I of Schedule 1 under the heading "Tranche A Commitment"
and the amount of any other Bank's Tranche A Commitment
acquired by it under Clause 30 (Changes to the Parties); and
(b) in relation to a Bank which becomes a Bank after the date of
this Agreement, the amount of any other Bank's Tranche A
Commitment acquired by it under Clause 30 (Changes to the
Parties),
to the extent not cancelled, transferred or reduced under this
Agreement.
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"TRANCHE A COMMITMENT PERIOD"
means the period from the date of this Agreement up to and including
the Tranche A Term Date.
"TRANCHE A FACILITY"
means the facility referred to in Clause 2.1(a)(i) (The Facilities).
"TRANCHE A TERM DATE"
means the earlier of:
(a) if the date of the acceptance for payment of shares of common
stock of the Target pursuant to and subject to the conditions
of a tender offer made by a subsidiary of the Company for the
Target in order to effect the Merger has not occurred, the
date falling 210 days after the date of this Agreement;
(b) the date upon which the Merger Agreement is terminated in
accordance with its terms; and
(c) the date falling 364 days from the date of this Agreement.
"TRANCHE B COMMITMENT"
means:
(a) in relation to a Bank which is a Bank on the date of this
Agreement, the amount in euros set opposite its name in Part
II of Schedule 1 under the heading "Tranche B Commitment" and
the amount of any other Bank's Tranche B Commitment acquired
by it under Clause 30 (Changes to the Parties); and
(b) in relation to a Bank which becomes a Bank after the date of
this Agreement, the amount of any other Bank's Tranche B
Commitment acquired by it under Clause 30 (Changes to the
Parties),
to the extent not cancelled, transferred or reduced under this
Agreement.
"TRANCHE B COMMITMENT PERIOD"
means the period from the date of this Agreement up to and including
the Tranche B Term Date.
"TRANCHE B FACILITY"
means the facility referred to in Clause 2.1(a)(ii) (The Facilities).
"TRANCHE B TERM DATE"
means the earlier of:
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(a) if the date of the acceptance for payment of shares of common
stock of the Target pursuant to and subject to the conditions
of a tender offer made by a subsidiary of the Company for the
Target in order to effect the Merger has not occurred, the
date falling 210 days after the date of this Agreement;
(b) the date upon which the Merger Agreement is terminated in
accordance with its terms; and
(c) the Final Maturity Date for the Tranche B Facility.
"TREATY"
means the Treaty Establishing the European Community, being the Treaty
of Rome of 25th March, 1957, as amended by the Single European Act 1986
and the Maastricht Treaty (which was signed at Maastricht on 7th
February, 1992 and came into force on 1st November, 1993), as amended
from time to time.
"U.K."
means the United Kingdom of Great Britain and Northern Ireland.
"U.S. DOLLARS" or "U.S.$"
means the lawful currency for the time being of the United States of
America.
"UTILISATION"
means:
(a) a Loan made or to be made; or
(b) all the Bills accepted or to be accepted on a particular date,
following the giving by a Borrower of a Request for that Loan or those
Bills.
"UTILISATION DATE"
means the date of the making of a Loan or the acceptance of a Bill.
1.2 CONSTRUCTION
(a) In this Agreement, unless the contrary intention appears, a
reference to:
(i) an "AMENDMENT" includes a supplement, novation or re-enactment
and "AMENDED" is to be construed accordingly;
"ASSETS" includes present and future properties, revenues and
rights of every description;
an "AUTHORIZATION" includes an authorization, consent,
approval, resolution, licence,
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exemption, filing and registration;
a "MONTH" is a reference to a period starting on one
day in a calendar month and ending on the numerically
corresponding day in the next calendar month, except
that:
(1) if there is no numerically corresponding day
in the month in which that period ends, that
period shall end on the last Business Day in
that calendar month; or
(2) if an Interest Period commences on the last
Business Day of a calendar month, that
Interest Period shall end on the last Business
Day in the calendar month in which it is to
end;
a "PERSON" includes any person, company, partnership,
association, government, state, agency or other
entity or any of its successors and assigns;
a "REGULATION" includes any regulation, rule,
official directive, request or guideline (whether or
not having the force of law but, if not having the
force of law, being of a type which the person to
whom it applies is accustomed to comply) of any
governmental, inter-governmental or supranational
body, agency, department or regulatory,
self-regulatory or other authority or organisation;
(ii) a provision of law is a reference to that provision
as amended or re-enacted;
(iii) a Clause or a Schedule is a reference to a clause of
or a schedule to this Agreement;
(iv) a Finance Document or another document is a reference
to that Finance Document or other document as
amended; and
(v) a time of day is a reference to London time.
(b) Unless the contrary intention appears, a term used in any
other Finance Document or in any notice given under or in
connection with any Finance Document has the same meaning in
that Finance Document or notice as in this Agreement.
(c) The index to and the headings in this Agreement are for
convenience only and are to be ignored in construing this
Agreement.
(d) Notwithstanding that the amount of EBITA, EBITDA, External Net
Borrowings, Net Assets, Net Debt and Net Interest Payable will
be derived from the latest relevant accounts, all those terms
are to be calculated in accordance with the accounting
principles applied in connection with the Original Group
Accounts.
2. THE FACILITIES
2.1 THE FACILITIES
(a) Subject to the terms of this Agreement, the Banks agree to
make available to the Borrowers the following facilities:
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<PAGE>
(i) a committed multicurrency revolving credit facility (with the
Term-Out Option) under which the Banks agree to make Loans to the
Borrowers up to an aggregate Original Currency Amount not
exceeding the Total Tranche A Commitments; and
(ii) a committed multicurrency revolving credit and Sterling bankers'
acceptance facility under which the Banks agree to make Revolving
Credit Loans to (or accept Bills in Sterling drawn by) the
Borrowers up to an aggregate outstanding Original Currency Amount
not exceeding the Total Tranche B Commitments.
(b) (i) The aggregate Original Currency Amount of all outstanding
Utilisations under Tranche A shall not exceed the Total Tranche
A Commitments.
(ii) The aggregate Original Currency Amount of all outstanding
Utilisations under Tranche B shall not exceed the Total Tranche B
Commitments.
(c) No Bank is obliged to lend if it would cause the Original Currency Amount
of the aggregate of its participations in the Loans and the Bills accepted
by it under Tranche A or Tranche B to exceed its relevant Commitment.
2.2 NUMBER OF UTILISATIONS AND CURRENCIES
Unless otherwise agreed by the Agent, no more than 30 Utilisations may be
outstanding at any time and Utilisations may not be denominated in more
than 10 currencies at any time.
2.3 NATURE OF A FINANCE PARTY'S RIGHTS AND OBLIGATIONS
(a) The obligations of a Finance Party under the Finance Documents are several.
Failure of a Finance Party to carry out those obligations does not relieve
any other Party of its obligations under the Finance Documents. No Finance
Party is responsible for the obligations of any other Finance Party under
the Finance Documents.
(b) The rights of a Finance Party under the Finance Documents are divided
rights. A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce those rights.
3. PURPOSE
(a) Each Borrower shall apply each Utilisation made by it
(i) in the case of the Tranche A Facility, towards financing or
refinancing the costs of the Merger (including, without limitation,
refinancing the Target Existing Facilities); and
(ii) in the case of the Tranche B Facility, towards its general corporate
purposes (including, to the extent not refinanced under sub-paragraph
(i) above, the fees, costs and expenses associated with the Merger and
refinancing of the Existing Facilities and the existing indebtedness
of the Target and its Subsidiaries).
(b) Without affecting the obligations of any Borrower in any way, no Finance
Party is bound to monitor or verify the application of any Utilisation.
<PAGE>
4. CONDITIONS PRECEDENT
4.1 DOCUMENTARY CONDITIONS PRECEDENT
(a) No Borrower may deliver the first Request until the Agent has received:
(i) all of the documents set out in Part I of Schedule 2, substantially in
the form agreed by the Agent and the Company prior to the date of this
Agreement; and
(ii) all of the documents set out in Part II of Schedule 2.
(b) Any references to an Arranger and/or this Agreement contained in the
documents referred to in sub-paragraph (a)(ii) above shall be in the form
approved by the Agent (such approval not to be unreasonably withheld or
delayed).
4.2 FURTHER CONDITIONS PRECEDENT
The obligations of each Bank to participate in any Utilisation are subject
to the further conditions precedent that:
(a) on both the date of the Request and the Utilisation Date for that
Utilisation no Event of Default and (except in the case of a Rollover
Utilisation) no Potential Event of Default is outstanding or would
result from the Utilisation; and
(b) the Utilisation would not cause Clause 2.1 (The Facilities) or Clause
2.2 (Number of Utilisations and currencies) to be contravened.
5. LOANS
5.1 COMMITMENT PERIOD
A Borrower may borrow a Loan during the relevant Commitment Period if the
Agent receives, not later than 3.00 p.m. three (or, in the case of a Loan
in Sterling, one) Business Day(s) before the proposed Utilisation Date, a
duly completed Request. Each Request is irrevocable and, subject to the
terms of this Agreement, shall oblige the Borrower to borrow the Loan.
5.2 COMPLETION OF REQUESTS
A Request will not be regarded as having been duly completed unless:
(a) it specifies whether the Loan is a Loan under the Tranche A Facility
or the Tranche B Facility;
(b) the Utilisation Date is a Business Day falling on or before the final
day of the relevant Commitment Period;
(c) the amount of the Loan is:
(i) if the currency is euro, a minimum of euro 30,000,000 and an
integral multiple of euro 5,000,000; or
<PAGE>
(ii) if the currency is U.S. Dollars, a minimum of U.S.$30,000,000 and
an integral multiple of U.S.$5,000,000; or
(iii) if the currency is Sterling, a minimum of L20,000,000 and an
integral multiple of L5,000,000; or
(iv) if the currency is an Alternative Currency other than Sterling or
Dollars either:
(A) such amount as the Agent and the relevant Borrower may
agree; or
(B) in the absence of such agreement, the equivalent of a
minimum of euro 30,000,000 and an integral multiple of
5,000,000 units of the relevant currency, rounded on such
basis as may reasonably be determined by the Agent and
notified to the relevant Borrower; or
(v) the balance of the relevant undrawn Commitments;
(d) the amount selected under paragraph (c) above does not cause Clause
2.1 (The Facilities) to be contravened;
(e) the currency selected complies with Clause 12 (Alternative
Currencies);
(f) the Interest Period selected complies with Clause 10 (Interest
Periods) and does not extend beyond the relevant Final Maturity Date;
and
(g) the payment instructions comply with Clause 14 (Payments).
5.3 ADVANCE OF LOAN
(a) The Agent shall promptly notify each Bank of the details of the requested
Loan and the amount of its participation in the Loan.
(b) Subject to the terms of this Agreement, each Bank shall make its
participation in the Loan available to the Agent for the Borrower on the
relevant Utilisation Date.
(c) The amount of each Bank's participation in the Loan will be the proportion
of the Loan which its relevant Commitment bears to the Total Tranche A
Commitments or the Total Tranche B Commitments, as appropriate, on the
proposed Utilisation Date.
5.4 TERM-OUT OPTION
(a) The Company may, not less than 30 days' prior to the Tranche A Term Date,
give notice to the Agent to convert the Tranche A Facility into a term loan
facility.
(b) With effect from the date the notice under paragraph (a) above is given to
the Agent:-
(i) the Final Maturity Date for the Tranche A Facility shall be the date
falling 30 months after the date of this Agreement or such earlier
date as the Company may specify in
<PAGE>
that notice; and
(ii) Loans under the Tranche A Facility may, subject to the terms of this
Agreement, be drawn down during the remainder of the Tranche A
Commitment Period, but all subsequent Loans under the Tranche A
Facility will be Term Loans.
6. DRAWING OF BILLS
6.1 RECEIPT OF REQUESTS
A Borrower may draw Bills if the Agent receives, not later than 3.00 p.m.
on the Business Day before the proposed Utilisation Date, a duly completed
Request.
6.2 FORM OF REQUESTS
A Request will not be regarded as being duly completed unless:
(a) the Utilisation Date is a Business Day before the Final Maturity Date
for the Tranche B Facility;
(b) the principal amount of the Bill is a minimum of L20,000,000 and an
integral multiple of L5,000,000 or such other amount as the Agent and
the Company may agree;
(c) only one term is specified which:
(i) does not overrun the Final Maturity Date for the Tranche B
Facility; and
(ii) is a period of between 14 and 187 days;
(d) the amount selected under paragraph (c) above does not cause Clause
2.1 (The Facilities) to be contravened; and
(e) the payment instructions comply with Clause 14 (Payments).
6.3 AMOUNT OF BILLS TO BE ACCEPTED BY EACH BANK
The aggregate principal amount of the Bills to be accepted by a Bank will
be the proportion of the aggregate principal amount of the Bills which its
Tranche B Commitment bears to the Total Tranche B Commitments on the
proposed Utilisation Date.
6.4 NOTIFICATION OF THE BANKS
The Agent shall, not later than 5.00 p.m. on the Business Day before the
proposed Utilisation Date, notify each Bank of the details of the requested
Bills and the aggregate principal amount of the Bills to be accepted by it.
6.5 ACCEPTANCE OF BILLS
(a) The Agent shall, not later than 11.00 a.m. on the proposed Utilisation
Date, deliver to each Bank Bills completed in accordance with Clause 7.1
(Holding and completion of Bills).
<PAGE>
(b) Each Bank shall accept the Bills delivered to it in accordance with
paragraph (a) above.
(c) The Agent shall, not later than 11.30 a.m. on the proposed Utilisation
Date, notify the Borrower and each Bank of the applicable EBDR.
(d) Subject to the terms of this Agreement, each Bank shall pay to the Agent
for the Borrower an amount equal to:
(i) the amount which the Bank would have received as the proceeds of
discounting if it had discounted the Bills accepted by it at the
applicable EBDR; less
(ii) acceptance commission calculated at the applicable Acceptance
Commission Rate on the aggregate principal amount of those Bills.
6.6 LOANS AS AN ALTERNATIVE
(a) If the acceptance of the Bills would conflict with any limit imposed by the
Bank of England on the amount of Bills a Bank can accept or, by reason of
any law or regulation, it is otherwise impracticable for a Bank to accept
any Bills, then it may notify the Agent accordingly.
(b) If a Bank notifies the Agent in accordance with paragraph (a) above or the
Agent has notified the Company in accordance with Clause 16.4(a) (Bills),
then, subject to the terms of this Agreement, the Bank or the relevant
Banks (as the case may be) shall instead make a Loan under the Tranche B
Facility in accordance with Clause 5 (Loans) in Sterling on the relevant
Utilisation Date in a principal amount equal to the aggregate principal
amount of the Bills which it would otherwise have been obliged to accept
pursuant to this Clause 6 (Drawing of Bills).
7. BILLS
7.1 HOLDING AND COMPLETION OF BILLS
(a) Unless paragraph (d) below applies, each Borrower shall ensure that the
Agent has a sufficient stock of Bills before delivering any Request for a
Utilisation comprising Bills.
(b) Each Bill shall:
(i) be drawn by the Borrower in its own favour and endorsed by it in
blank;
(ii) be undated;
(iii) have the Maturity Date and the face amount left blank; and
(iv) be claused in a manner which complies with the Bank of England's
requirements for Eligible Bills at that time.
(c) Subject to the terms of this Agreement, the Agent shall:
(i) date each Bill with its Utilisation Date;
<PAGE>
(ii) insert in each Bill the name of the Bank on which it is drawn, its
face amount and its Maturity Date; and
(iii) deliver the requisite number of completed Bills to the relevant Banks
for acceptance in accordance with this Agreement.
(d) If a power of attorney substantially in the form of Schedule 9 given to the
Agent in respect of the relevant Borrower is in effect on the relevant
Utilisation Date and no notice of revocation of that power of attorney has
been received by the Agent, then, notwithstanding the preceding paragraphs
of this Clause 7, the Agent, for and on behalf of the relevant Borrower,
shall draw, clause (so as to comply with the Bank of England's requirements
for Eligible Bills current at the time), endorse (if appropriate) and
deliver Bills to implement the relevant Utilisation in satisfaction of the
relevant Borrower's obligations under this Clause 7.
7.2 ROUNDING OF PRINCIPAL AMOUNT OF BILLS
The Agent may round the principal amount of the relevant Bills to be
accepted by each Bank to ensure that each Bill has a principal amount of an
integral multiple of L10,000, being not less than L100,000 nor more than
L5,000,000.
7.3 DISCOUNTING OF BILLS
Each Bank may arrange for a Bill accepted by it to be discounted on its
behalf in the London discount market or elsewhere or discount the Bill
itself.
7.4 INFORMATION RELATING TO BILLS
Each Borrower shall, promptly on request by a Finance Party, supply to the
Agent for that Finance Party any information relating to any Bill as that
Finance Party may reasonably require or which may be required by the Bank
of England or any other fiscal or monetary authority in the U.K.
7.5 ELIGIBLE BILLS
A Borrower shall ensure that each Bill drawn by it and accepted by a Bank
is, assuming that the relevant Bank is a bank whose acceptances are then
being treated as eligible acceptances by the Bank of England, eligible for
rediscounting at the Bank of England.
7.6 BILLS
(a) Any Bills delivered to the Agent under Clause 7.1(a) (Holding and
completion of Bills) shall be held for the Company's account. In
keeping and handling Bills under this Agreement the Agent shall use
all reasonable care.
(b) The Agent shall indemnify each Borrower from any loss or liability
arising from:
(i) any failure by the Agent to comply with its obligations under
paragraph (a) above; or
(ii) any unauthorised completion or use by the Agent, its officers,
agents or employees of any Bill.
<PAGE>
8. REPAYMENT
8.1 REPAYMENT OF TERM LOANS
Each Borrower shall repay in full each Term Loan made to it on the Final
Maturity Date for the Tranche A Facility.
8.2 REPAYMENT OF REVOLVING CREDIT LOANS
Each Borrower shall repay in full each Revolving Credit Loan made to it on
its Repayment Date.
8.3 PAYMENT OF BILLS
Each Borrower shall pay an amount equal to the principal amount of each
Bill drawn by it on its Maturity Date to the Agent for the Bank that
accepted that Bill.
9. PREPAYMENT AND CANCELLATION
9.1 AUTOMATIC CANCELLATION
(a) The undrawn Tranche A Commitment of each Bank shall be automatically
cancelled at the close of business in London on the Tranche A Term Date.
(b) The Tranche B Commitment of each Bank shall be automatically cancelled at
the close of business in London on the Tranche B Term Date.
9.2 VOLUNTARY CANCELLATION
(a) The Company may, by giving not less than 5 Business Days' prior notice to
the Agent, at any time prior to the relevant Term Date, cancel the
unutilised portion of the Total Tranche A Commitments or the Total Tranche
B Commitments, as appropriate, in whole or in part (but, if in part, in a
minimum of U.S.$15,000,000 or euro 15,000,000 (as applicable) and an
integral multiple of U.S.$5,000,000 or euro 5,000,000 (as applicable)).
(b) Any cancellation in part shall be applied against the relevant Commitment
of each Bank pro rata.
9.3 VOLUNTARY PREPAYMENT
(a) A Borrower may, by giving not less than 5 Business Days' prior notice to
the Agent and subject to Clause 27.2(b) (Other indemnities), prepay any
Loan in whole or in part (but, if in part, in a minimum amount of
U.S.$15,000,000 or euro 15,000,000 and an integral multiple of
U.S.$5,000,000 or euro 5,000,000 or, if the Loan is denominated in an
Alternative Currency, an integral multiple of 1,000,000 of the largest
currency unit of that Alternative Currency but at least the equivalent of
U.S.$15,000,000 or euro 15,000,000).
(b) A Borrower may, by giving not less than 5 Business Days' prior notice to
the Agent, prematurely comply with its obligations under Clause 8.3
(Payment of Bills).
<PAGE>
9.4 ADDITIONAL RIGHT OF PREPAYMENT AND CANCELLATION
If:
(a) an Obligor is required to pay to a Bank any additional amounts under
Clause 15 (Taxes); or
(b) an Obligor is required to pay to a Bank any amount under Clause 17
(Increased costs); or
(c) interest on a Bank's participation in a Loan is being calculated in
accordance with Clause 16.3(d) (Alternative basis),
then, without prejudice to the obligations of any Obligor under those
Clauses, the Company may, whilst the circumstances giving rise to the
requirement continue, serve a notice of prepayment and cancellation on
that Bank through the Agent. On the date falling five Business Days
after the date of service of the notice and subject to Clause 27.2(b)
(Other indemnities):
(i) each Borrower shall prepay that Bank's participation in all the Loans
made to it;
(ii) each Borrower shall perform its obligations under Clause 8.3 (Payment
of Bills) in respect of all outstanding Bills accepted by that Bank;
and
(iii) the Commitments of that Bank shall be cancelled.
9.5 MANDATORY PREPAYMENT OR CANCELLATION FOLLOWING DISPOSAL OR REFINANCING
(a) From the date of this Agreement until such date as a Compliance Certificate
is delivered which shows that the ratio of Net Debt to EBITDA as calculated
in accordance with Clause 21.9 (Financial covenants) is less than or equal
to 2:1, the Company shall apply at least 90 per cent. of the Net Proceeds
of any Relevant Disposal or Relevant Refinancing in prepayment of the Loans
under the Tranche A Facility.
(b) Any prepayment under paragraph (a) above will be made on the last day of
the then current Interest Period(s) for the Loans under the Tranche A
Facility. On the date(s) of that prepayment, the Total Tranche A
Commitments will be cancelled by an amount equal to the amount prepaid. Any
such cancellation shall be applied against the Tranche A Commitments of
each Bank on a pro rata basis.
(c) Notwithstanding paragraph (a) above, the Company shall only apply the Net
Proceeds of any Relevant Disposal or Relevant Refinancing in accordance
with paragraph (a) above:
(i) if the Net Proceeds of that Relevant Disposal or Relevant Refinancing
exceed U.S.$50,000,000 (or its equivalent) or the Relevant Disposal is
one which the Company is required to make as a condition of the EU
Anti-trust Clearance; and
(ii) if application in whole would result in the ratio of Net Debt to
EBITDA being less than 2:1, to the extent necessary to ensure that,
after so applying that part of those Net Proceeds, the ratio of Net
Debt to EBITDA is equal to 2:1 calculated as described
<PAGE>
in Clause 11.5(a) (Adjustment of the Margin and Acceptance Commission
Rate).
(d) For the purpose of this Clause 9.5 and Clause 11.5 (Adjustment of the
Margin and Acceptance Commission Rate):
(i) "RELEVANT DISPOSAL" means the disposal of any asset or business
(whether by way of a share or asset sale) of a member of the Group
other than the currently envisaged sale of its printing sector;
(ii) "RELEVANT REFINANCING" means a raising of external debt finance by a
member of the Group in the capital markets or by way of a private
placement where the borrowing under that transaction has a maturity of
greater than one year; and
(iii) "NET PROCEEDS" means the proceeds of a Relevant Disposal or Relevant
Refinancing received by the relevant member of the Group after the
date of this Agreement less all directly related expenses, fees, taxes
and reserves.
(e) The Company shall ensure that, if the Net Proceeds of a Relevant Disposal
or Relevant Refinancing received by the Group which are still to be applied
in prepayment under this Clause 9 exceed at any time U.S.$200,000,000 in
aggregate, those Net Proceeds will, within three Business Days of receipt,
be placed on account with all or any of the Arrangers or their Affiliates
until application towards prepayment under this Clause 9.
9.6 MITIGATION
If, in respect of any Bank, circumstances arise which would, or would on
the giving of notice, result in:
(a) any additional amounts becoming payable under Clause 15 (Taxes); or
(b) any amount becoming payable under Clause 17 (Increased costs); or
(c) any prepayment, early payment or cancellation under Clause 18
(Illegality),
then, without in any way limiting, reducing or otherwise qualifying the
obligations of any Obligor under this Agreement and without prejudice to
the terms of those Clauses, that Bank shall, in consultation with, and at
the expense of, the Company through the Agent and to the extent that it can
do so lawfully, take such reasonable steps as may be open to it to mitigate
or remove such circumstances, including (without limitation) the transfer
of its rights and obligations under this Agreement to another branch or an
Affiliate or another bank or financial institution nominated by the
Company, unless to do so might (in the reasonable opinion of the Bank) be
prejudicial to it.
9.7 EARLY PAYMENT OF BILLS
If a Borrower complies prematurely with its obligations under Clause 8.3
(Payment of Bills) in respect of a Bill, it will only be obliged to pay to
each relevant Bank an amount (calculated by the Agent) as would be
necessary to ensure that the Bank would receive on the original Maturity
Date of the Bill the face amount of the Bill, assuming that the amount
received was deposited on the Business Day following receipt of that amount
from (and including) that
<PAGE>
date up to (but excluding) the original Maturity Date accruing interest at
a normal commercial rate.
9.8 MISCELLANEOUS PROVISIONS
(a) Any notice of prepayment and/or cancellation under this Agreement is
irrevocable. The Agent shall notify the Banks promptly of receipt of any
such notice.
(b) All prepayments under this Agreement shall be made together with accrued
interest on the amount prepaid and, subject to Clause 27.2 (Other
indemnities), without premium or penalty.
(c) No prepayment or cancellation is permitted except in accordance with the
express terms of this Agreement.
(d) Subject to the terms of this Agreement, Revolving Credit Loans prepaid
under Clause 9.3 (Voluntary prepayment) prior to the relevant Final
Maturity Date may subsequently be reborrowed.
(e) No amount of the Total Commitments cancelled under this Agreement may
subsequently be reinstated.
(f) Except as permitted by paragraph (d) above and without prejudice to the
right of a Borrower to re-borrow or re-draw amounts repaid under Clause 8.2
(Repayment of Revolving Credit Loans) or 8.3 (Payment of Bills), no amount
repaid or prepaid under this Agreement may subsequently be re-borrowed
(including any amount prepaid under Clause 9.5 (Mandatory prepayment or
cancellation following disposal or refinancing)).
10. INTEREST PERIODS
10.1 SELECTION
(a) (i) Each Term Loan will have successive Interest Periods.
(ii) Each Revolving Credit Loan has one Interest Period only.
(b) A Borrower may select the Interest Period for a Revolving Credit Loan in
the relevant Request. Each Interest Period for a Revolving Credit Loan will
commence on its Utilisation Date.
(c) A Borrower may select the Interest Period for a Term Loan in the relevant
Request or, if the Term Loan has been borrowed, in a notice received by the
Agent not later than 3.00 p.m. three (or, in the case of Sterling, one)
Business Day(s) before the commencement of that Interest Period. Each
Interest Period for a Term Loan (other than the first which shall commence
on its Utilisation Date) shall commence on the expiry of its preceding
Interest Period.
(d) Subject to the following provisions of this Clause 10, each Interest Period
will be one, two, three or six months or any other period agreed by the
relevant Borrower and the Agent.
(e) If the Borrower fails to select an Interest Period for a Term Loan in
accordance with paragraph (b) above, that Interest Period will, subject to
the other provisions of this Clause
<PAGE>
10, be three months.
10.2 NON-BUSINESS DAYS
If an Interest Period would otherwise end on a day which is not a Business
Day, that Interest Period shall instead end on the next Business Day in
that calendar month (if there is one) or the preceding Business Day (if
there is not).
10.3 COINCIDENCE WITH FINAL MATURITY DATES
If an Interest Period for a Loan would otherwise overrun the relevant Final
Maturity Date, it will be shortened so that it ends on that Final Maturity
Date.
10.4 OTHER ADJUSTMENTS
The Agent (after consultation with the Banks) and the Company may enter
into such other arrangements as they may agree for the adjustment of
Interest Periods and the consolidation and/or splitting of Loans.
10.5 NOTIFICATION
The Agent shall notify the relevant Borrower and the Banks of the duration
of each Interest Period promptly after ascertaining its duration.
11. INTEREST
11.1 INTEREST RATE
The rate of interest on each Loan for each of its Interest Periods is the
rate per annum determined by the Agent to be the aggregate of the
applicable:
(a) Margin;
(b) LIBOR or, in the case of a Loan in euros, EURIBOR; and
(c) Mandatory Cost.
11.2 DUE DATES
Except as otherwise provided in this Agreement, accrued interest on each
Loan is payable by the relevant Borrower on the last day of each Interest
Period for that Loan and also, if the Interest Period is longer than six
months, on the dates falling at six monthly intervals after the first day
of that Interest Period.
11.3 DEFAULT INTEREST
(a) (i) If an Obligor fails to pay any amount payable by it under the Finance
Documents, it shall forthwith on demand by the Agent pay interest on
the overdue amount from the due date up to the date of actual payment,
as well after as before judgment, at a rate (the "DEFAULT RATE")
determined by the Agent to be one per cent. per annum above, subject
to sub-paragraph (ii) below, the rate which would have been payable if
the
<PAGE>
overdue amount had, during the period of non-payment, constituted a
Loan in the currency of the overdue amount for such successive
Interest Periods of such duration as the Agent may determine having
due regard to the likely date for payment of the overdue amount (each
a "DESIGNATED INTEREST PERIOD").
(ii) If the overdue amount is a principal amount of a Loan and it becomes
due and payable prior to the last day of an Interest Period for that
Loan, then:
(1) the first Designated Interest Period for that overdue sum will be
the unexpired portion of that Interest Period; and
(2) the rate of interest on the overdue amount for that first
Designated Interest Period will be one per cent per annum above
the rate on the overdue amount under Clause 11.1 (Interest rate)
immediately before the due date.
After the expiry of the first Designated Interest Period for that
overdue amount, the rate on the overdue amount will be calculated in
accordance with sub-paragraph (i) above.
(b) The default rate will be determined by the Agent on each Business Day or
the first day of, or two Business Days before the first day of, the
relevant Designated Interest Period, as appropriate.
(c) If, for any Designated Interest Period, LIBOR cannot be determined, the
rate of interest applicable to any overdue amount shall be the aggregate of
one per cent. per annum, the applicable Margin and the rate per annum
determined by the Agent to be the arithmetic mean (rounded upwards to the
nearest four decimal places) of the rates notified by each Reference Bank
to the Agent before the last day of the Designated Interest Period to be
those which express as a percentage rate per annum the cost to it of
funding from whatever source it may reasonably select its portion of the
overdue amount for the Designated Interest Period.
(d) Default interest will be compounded at the end of each Designated Interest
Period.
11.4 NOTIFICATION OF RATES OF INTEREST
The Agent shall promptly notify each relevant Party of the determination of
a rate of interest under this Agreement.
11.5 ADJUSTMENT OF THE MARGIN AND ACCEPTANCE COMMISSION RATE
(a) After the Merger Date, the Company shall deliver to the Agent no later than
30 days after:
(i) in the case of the second and final financial quarters of the Group,
the publication of its interim or preliminary results (as
appropriate);
(ii) the end of the first and third financial quarters of the Group;
(iii) a Relevant Disposal (as defined in Clause 9.5(d) (Mandatory
prepayment or cancellation following disposal)) if the Net Proceeds of
that Relevant Disposal exceed U.S.$50,000,000 (or its equivalent);
<PAGE>
(iv) any equity issue to persons (other than members of the Group) by any
member of the Group which is used to permanently reduce Net Debt or is
earmarked to permanently reduce Net Debt; or
(v) the date of an acquisition funded by an equity issue to persons (other
than members of the Group) by any member of the Group,
a Margin Certificate signed by an authorised signatory of the Company for
the purposes of calculating whether the Margin or the Acceptance Commission
Rate is to be adjusted in accordance with this Clause 11.5. In the case of
a Margin Certificate under paragraph (iii)-(v), the Company may opt not to
send a Margin Certificate if the Relevant Disposal, equity issue or
acquisition occurs within thirty days of the end of a financial quarter. A
Margin Certificate delivered under sub-paragraphs (ii) - (v) above shall be
based on the financial information relating to the Ratio Period ending on
the most recent financial quarter of the Group, but adjusted to reflect the
pro forma effect of the Relevant Disposals and/or equity issues and/or
acquisitions which have occurred since the end of that Ratio Period.
(b) Following delivery of the first Margin Certificate, the Margin and
Acceptance Commission Rate for the Tranche B Facility will be adjusted as
appropriate by reference to the ratio of Net Debt to EBITDA for the
relevant Ratio Period as set out in the most recent Margin Certificate as
follows:
<TABLE>
<CAPTION>
NET DEBT: EBITDA MARGIN/ACCEPTANCE COMMISSION RATE
(PER CENT. PER ANNUM)
<S> <C>
Above 3:1 0.95
less than or equal to 3:1 but greater 0.85
than 2.5:1
less than or equal to 2.5:1 but greater 0.70
than or equal to 2:1
less than 2:1 0.55
</TABLE>
(c) Subject to paragraph (d) below, the adjustment (if any) specified in
paragraph (b) above will apply in the case of each subsequent Utilisation
under the Tranche B Facility from its Utilisation Date.
(d) Notwithstanding paragraph (c) above, if the accounts of the Company
delivered under Clause 21.2 (Information) for the relevant period show a
different ratio of Net Debt to EBITDA than that in the corresponding Margin
Certificate, then the Company shall deliver a revised Margin Certificate
which will be used to determine the relevant Margin. If this would result
in a different Margin, then the different Margin will apply from the date
it would have applied if the initial Margin Certificate had shown the same
ratio as the revised Margin Certificate. If necessary, the Company will
promptly pay such amount as the Agent may require to correct the difference
or, as the case may be, the Agent will deduct the amount of any overpayment
of Margin by a Borrower from the next interest payment due from that
Borrower.
12. ALTERNATIVE CURRENCIES
12.1 SELECTION
<PAGE>
(a) A Borrower may select the currency of a Loan in the relevant Request.
(b) The currency of each Loan must be a Base Currency or an Alternative
Currency.
(c) The Agent shall notify each Bank and the relevant Borrower of the Original
Currency Amount of each Loan denominated in an Alternative Currency and the
applicable Agent's Spot Rate of Exchange promptly after they are
ascertained.
12.2 REVOCATION OF CURRENCY
If, before 9.30 a.m. on any Rate Fixing Day for a Loan denominated in an
Alternative Currency (other than euros, Sterling or Dollars), the Agent
receives notice from a Bank that:
(a) it is impracticable for that Bank to fund its participation in the
Loan in the relevant Alternative Currency during that Interest Period
in the ordinary course of business in the London interbank market;
and/or
(b) the use of the proposed Alternative Currency would contravene any law
or regulation,
the Agent shall give notice to the relevant Borrower and to the Banks to
that effect before 11.00 a.m. on that day. In this event:
(i) the Borrower and the Banks may agree that the drawdown will not be
made; or
(ii) in the absence of agreement, that Bank's participation in the Loan (or
if more than one Bank is similarly affected, those Banks'
participations in the Loan) shall be treated as a separate Loan
denominated in the relevant Base Currency during that Interest Period.
13. AMOUNT OF ALTERNATIVE CURRENCIES
13.1 TERM LOANS
A Term Loan is to be denominated in the same currency until the Final
Maturity Date for the Tranche A Facility.
13.2 SAME ALTERNATIVE CURRENCY
If a Term Loan is to be continued during its next Interest Period in the
same Alternative Currency as that in which it is denominated during its
current Interest Period, no adjustment need be made to the amount of that
Term Loan.
13.3 NOTIFICATION
The Agent shall notify the Banks and the relevant Borrower of Alternative
Currency amounts (and the applicable Agent's Spot Rate of Exchange)
promptly after they are ascertained.
14. PAYMENTS
14.1 PLACE
<PAGE>
All payments by an Obligor or a Bank under the Finance Documents shall be
made to the Agent to its account at such office or bank:
(a) in the principal financial centre of the country of the relevant
currency (other than euros); or
(b) in the case of euros, in the principal financial centre of a
Participating Member State or London,
as it may notify to that Obligor or Bank for this purpose. Notwithstanding
the above, all payments by the Company to the Arrangers under Clauses 24
(Fees) and 25 (Expenses) shall be made direct to the Arrangers in the
manner agreed by the Arrangers and the Company. A payment by an Obligor
under the Finance Documents to the Agent in accordance with this Clause
constitutes a good discharge of that Obligor's obligations.
14.2 FUNDS
Payments under the Finance Documents to the Agent shall be made for value
on the due date in such funds as the Agent may specify to the Party
concerned as being customary at the time for the settlement of transactions
in the relevant currency in the place for payment.
14.3 DISTRIBUTION
(a) Each payment received by the Agent under the Finance Documents for another
Party shall, subject to paragraphs (b) and (c) below, be made available by
the Agent to that Party by payment (on the date and in the currency and
funds of receipt) to its account with such office or bank:
(i) in the principal financial centre of the country of the relevant
currency (other than euros); or
(ii) in the case of euros, in the principal financial centre of a
Participating Member State or London,
as it may notify to the Agent for this purpose by not less than five
Business Days' prior notice.
(b) If the relevant Obligor agrees, the Agent may apply any amount received by
it for an Obligor in or towards payment (on the date and in the currency
and funds of receipt) of any amount due from that Obligor under the Finance
Documents or in or towards the purchase of any amount of any currency to be
so applied.
(c) Where a sum is to be paid to the Agent under the Finance Documents for
another Party, the Agent is not obliged to pay that sum to that Party until
it has established that it has actually received that sum. The Agent may,
however, assume that the sum has been paid to it in accordance with this
Agreement, and, in reliance on that assumption, make available to that
Party a corresponding amount. If the sum has not been made available but
the Agent has paid a corresponding amount to another Party, that Party
shall forthwith on demand by the Agent refund the corresponding amount
together with interest on that amount from the date of payment to the date
of receipt, calculated at a rate determined by the Agent to reflect its
cost
<PAGE>
of funds.
14.4 CURRENCY
(a) A repayment or prepayment of a Loan or any part of a Loan is payable in the
currency in which the Loan is denominated on its due date.
(b) Interest is payable in the currency in which the relevant amount in respect
of which it is payable is denominated.
(c) Amounts payable in respect of costs, expenses and taxes and the like are
payable in the currency in which they are incurred.
(d) Any other amount payable under the Finance Documents is, except as
otherwise provided in this Agreement, payable in euros.
(e) (i) All Loans requested in the currency of a Participating Member State
shall, subject to the terms of this Agreement, be made in euros; and
(ii) payments by the Agent to the Banks in the currency of a Participating
Member State shall be made in euros.
14.5 SET-OFF AND COUNTERCLAIM
All payments made by an Obligor under the Finance Documents shall be made
without set-off or counterclaim.
14.6 NON-BUSINESS DAYS
(a) If a payment under the Finance Documents is due on a day which is not a
Business Day, the due date for that payment shall instead be the next
Business Day in the same calendar month (if there is one) or the preceding
Business Day (if there is not).
(b) During any extension of the due date for payment of any principal under
this Agreement interest is payable on that principal at the rate payable on
the original due date.
14.7 PARTIAL PAYMENTS
(a) If the Agent receives a payment insufficient to discharge all the amounts
then due and payable by the Obligors under the Finance Documents, the Agent
shall apply that payment towards the obligations of the Obligors under the
Finance Documents in the following order:
(i) FIRST, in or towards payment pro rata of any unpaid fees, costs and
expenses of the Agent under the Finance Documents;
(ii) SECONDLY, in or towards payment of any commitment fee due under Clause
24.3 (Commitment fee) but unpaid;
(iii) THIRDLY, in or towards payment pro rata of any accrued interest due
but unpaid under this Agreement;
<PAGE>
(iv) FOURTHLY, in or towards payment pro rata of any principal due but
unpaid under this Agreement; and
(v) FIFTHLY, in or towards payment pro rata of any other sum due but
unpaid under the Finance Documents.
(b) The Agent shall, if so directed by all the Banks, vary the order set out in
sub-paragraphs (a)(ii) to (v) above.
(c) Paragraphs (a) and (b) above will override any appropriation made by an
Obligor.
15. TAXES
15.1 GROSS-UP
All payments by an Obligor under the Finance Documents shall be made
without any deduction and free and clear of and without any deduction for
or on account of any Relevant Taxes, except to the extent that the Obligor
is required by law to make payment subject to any Relevant Taxes. If any
Relevant Tax, or amounts in respect of Relevant Tax, must be deducted from
any amounts payable or paid by an Obligor, or paid or payable by the Agent
to a Bank, under the Finance Documents, the Obligor shall pay such
additional amounts as may be necessary to ensure that the relevant Bank
receives a net amount equal to the full amount which it would have received
had payment not been made subject to Relevant Tax.
15.2 TAX RECEIPTS
All Relevant Taxes required by law to be deducted by an Obligor from any
amounts paid or payable under the Finance Documents shall be paid by the
relevant Obligor when due and the Obligor shall, within 30 days of the
payment being made, deliver to the Agent for the relevant Bank appropriate
evidence that the payment has been duly remitted to the appropriate
authority.
15.3 QUALIFYING BANKS
(a) (i) Subject to paragraph (b) below, if a Bank is not or ceases to be a
Qualifying Bank, no Obligor incorporated in the U.K. will be liable to
pay to that Bank under Clause 15.1 (Gross-up), any amount in respect
of taxes levied or imposed by the U.K. or any taxing authority of or
in the U.K. in excess of the amount it would have been obliged to pay
if that Bank had been, or had not ceased to be, a Qualifying Bank; or
(ii) No Obligor incorporated in the U.K. will be liable to pay to a Tax
Treaty Bank under Clause 15.1 (Gross-up) any amount in respect of
taxes levied or imposed in the U.K. or any taxing authority of or in
the U.K. in excess of the amount it would have been obliged to pay if
the Financial Intermediaries and Claims Office of the Inland Revenue
had determined that it was entitled to receive payments of interest
under this Agreement without deduction or withholding in respect of
any Tax.
(b) Paragraph (a)(i) above does not apply if a Bank ceases to be a Qualifying
Bank as a result of the introduction of, change in, or any change in the
interpretation, administration or application of, any law or regulation or
any practice or concession of the U.K. Inland Revenue occurring after the
date of this Agreement.
<PAGE>
(c) (i) Each Bank represents and warrants to each Obligor incorporated in the
U.K. that it is a Qualifying Bank. Subject to sub-paragraph (iii)
below, this representation and warranty shall be deemed to be repeated
by each Bank on each date on which it participates in the making of a
Loan and on each date on which any payment of interest in respect of
any Loan is due to be made to it pursuant to this Agreement.
(ii) If the Income and Corporation Taxes Act 1988 is amended or repealed or
there is any change in its interpretation, the Agent may, after
consultation with the Company, amend this representation to reflect
the amendment or repeal of that Act or change in interpretation.
(iii) If the Income and Corporation Taxes Act 1988 is amended or repealed,
or there is a change in interpretation, in a manner which requires an
amendment to the representation under sub-paragraph (i) above, no Bank
is obliged to make the representation unless and until the
representation is amended in a manner acceptable to the Bank.
(d) Each Finance Party shall cooperate with the relevant Obligor and the Agent
in respect of any application to the relevant revenue authorities by the
completion and execution (as soon as reasonably practicable following a
request from the Obligor or the Agent) of such certificates, claim forms or
other documentation as:
(i) the Finance Party is reasonably able to complete and execute without
incurring any significant administrative burden on its part; and
(ii) the Obligor or the Agent reasonably requests for the purpose of
enabling the Obligor or the Agent to obtain authorisation from the
relevant revenue authorities to make interest payments in full without
deduction or withholding of Tax.
(e) No additional amount shall be payable pursuant to Clause 15.1 (Gross-up) in
respect of any deduction or withholding for or on account of Tax which
would not have been required to be deducted or withheld if the person to
whom that payment was made had complied with the obligations assumed by it
under paragraph (d) above.
15.4 REIMBURSEMENT OF TAX CREDITS
If:
(a) an Obligor pays any additional amount (a "TAX PAYMENT") under Clause
15.1 (Gross-up); and
(b) a Bank effectively obtains a refund of Tax, or credit against Tax on
its overall net income, by reason of that Tax Payment (a "TAX
CREDIT"); and
(c) that Bank is able to identify such Tax Credit as being attributable to
the Tax Payment,
then the Bank shall reimburse to the relevant Obligor such proportion of
such Tax Credit as will leave the Bank, after that reimbursement, in no
better or worse position than it would have been in if such Tax Payment had
not been required. Each Bank shall use its reasonable
<PAGE>
endeavours to claim any Tax Credit which may be due to it unless to do so
might be prejudicial to it. No Bank is obliged to disclose any information
regarding its tax affairs or computations to any Obligor.
16. MARKET DISRUPTION
16.1 ABSENCE OF QUOTATIONS
If LIBOR or EURIBOR is to be determined by reference to the Reference Banks
but a Reference Bank does not supply an offered rate by 11.30 a.m. (local
time) on the relevant Rate Fixing Day, the applicable LIBOR or EURIBOR
shall, subject to Clause 16.2 (Market disruption), be determined on the
basis of the quotations of the remaining Reference Banks.
16.2 MARKET DISRUPTION
If:
(a) LIBOR or EURIBOR is to be determined by reference to the Reference
Banks but no, or only one, Reference Bank supplies a rate by 11.30
a.m. (local time) on the Rate Fixing Day or the Agent otherwise
determines that adequate and fair means do not exist for ascertaining
LIBOR or EURIBOR; or
(b) the Agent receives notification from Banks whose participations in a
Loan exceed 50 per cent. of that Loan that, in their opinion, by
reason of factors affecting the relevant interbank market generally:
(i) matching deposits may not be available to them in the relevant
interbank market in the ordinary course of business to fund their
participations in that Loan for the relevant Interest Period; or
(ii) the cost to them of matching deposits in the relevant interbank
market would be in excess of the relevant LIBOR or EURIBOR, as
appropriate, for the relevant Interest Period,
the Agent shall promptly notify the relevant Borrower and the Banks of the
fact and that this Clause 16 is in operation.
16.3 ALTERNATIVE BASIS
If a notification under Clause 16.2 (Market disruption) applies:
(a) (i) in the case of a Loan which has not been made, and unless the
relevant Borrower notifies the Agent to the contrary before close
of business on the day it received the notification under Clause
16.2 (Market disruption), the Loan shall still be made but it
shall be denominated (at the option of the Agent) in euros,
Sterling or Dollars (or a combination thereof), shall have an
Interest Period of one month and the interest payable on that
Loan shall be determined in accordance with this Clause 16.3; and
(ii) in the case of a Term Loan which has been made, the Loan shall
continue but it shall have an Interest Period of one month and
the interest payable on that
<PAGE>
Loan shall be determined in accordance with this Clause 16.3;
(b) within five Business Days of receipt of the notification for a Loan under
Clause 16.2 (Market disruption), the Company and the Agent shall enter into
negotiations for a period of not more than 30 days with a view to agreeing
an alternative basis for determining the rate of interest and/or funding
applicable to that Loan;
(c) any alternative basis agreed under paragraph (b) above shall be, with the
prior consent of all the Banks, binding on all the Parties;
(d) if no alternative basis is agreed each Bank shall (through the Agent)
certify on or before 10.00 a.m. on the last day of the Interest Period (in
respect of a Loan in Sterling) or 10.00 a.m. on the second Business Day
before the last day of the Interest Period (in respect of a Loan in euros
or an Alternative Currency other than Sterling) to which the notification
relates an alternative basis for maintaining its participation in that
Loan;
(e) any alternative basis under paragraph (b) or (d) above may include an
alternative method of fixing the interest rate, alternative Interest
Periods or alternative currencies but it must reflect the cost to each Bank
of funding its participation in the Loan from whatever sources it may
select in order to provide the relevant Borrower with funds on as economic
a basis as is practicable (having regard to the sources then known to the
Bank) plus the applicable Margin plus any applicable Mandatory Cost;
(f) each alternative basis so certified shall be binding on the Obligors and
each certifying Bank and treated as part of this Agreement; and
(g) the Agent and the Company shall consult in good faith following any
significant change in market conditions with a view to returning to the
normal provisions of this Agreement.
16.4 BILLS
(a) If, in relation to any Bills:
(i) the Agent determines that adequate and fair means do not exist for
ascertaining the applicable EBDR; or
(ii) the Agent determines that the Bills do not comply with the then
current Bank of England regulations for Sterling bankers' acceptances,
the Agent shall promptly notify the Company and the relevant Banks of the
fact that this Clause 16.4 is in operation.
(b) After any notification under paragraph (a) above:
(i) the relevant Bills shall not be accepted; and
(ii) in the case of sub-paragraph (a)(i) above, no further Requests for
Bills may be delivered until the Agent notifies the Company that it is
once again able to determine
<PAGE>
the EBDR.
17. INCREASED COSTS
17.1 INCREASED COSTS
(a) Subject to Clause 17.2 (Exceptions), the Company shall within 14 days of
demand by a Bank pay to that Bank the amount of any increased cost incurred
by it or its Holding Company as a result of:
(i) the introduction of, or any change in, or any change in the
interpretation or application of any law or regulation; or
(ii) compliance with any regulation made after the date of this Agreement,
including any law or regulation relating to taxation, or reserve asset,
special deposit, cash ratio, liquidity or capital adequacy requirements or
any other form of banking or monetary control.
(b) In this Agreement "INCREASED COST" means:
(i) an additional cost incurred by a Bank or its Holding Company as a
result of having entered into, or performing, maintaining or funding
its obligations under, this Agreement; or
(ii) that portion of an additional cost incurred by a Bank or its Holding
Company in making, funding or maintaining all or any advances
comprised in a class of advances formed by or including that Bank's
participations in the Loans made or to be made under this Agreement as
is attributable to that Bank making, funding or maintaining those
participations; or
(iii) a reduction in any amount payable to a Bank or its Holding Company or
the effective return to a Bank or its Holding Company under this
Agreement or (to the extent that it is attributable to this Agreement)
on its capital.
(c) Each Bank shall notify the Company promptly upon it becoming aware of any
increased cost incurred (or which is reasonably likely to be incurred) by
it or its Holding Company.
17.2 EXCEPTIONS
Clause 17.1 (Increased costs) does not apply to any increased cost:
(a) compensated for by the payment of the Mandatory Cost; or
(b) referred to in Clause 15 (Taxes); or
(c) attributable to tax on the overall net income of a Bank or its Holding
Company; or
(d) which is referable to wilful default by a Bank or its Holding Company.
17.3 ECB COST
<PAGE>
The Company shall within 14 days of demand by a Bank pay to that Bank
the amount of the cost of compliance by it with the reserve asset
requirements of the European Central Bank which is referable to this
Agreement.
18. ILLEGALITY
If it is or becomes unlawful in any jurisdiction for a Bank to give effect
to any of its obligations as contemplated by this Agreement or to fund or
maintain its participation in any Utilisation, then:
(a) that Bank may notify the Company through the Agent accordingly; and
(b) (i) each Borrower shall forthwith or (if later) on the latest
date(s) permitted by the relevant law prepay the participations
of that Bank in all the Loans made to it;
(ii) each Borrower's obligations under Clause 8.3 (Payments of Bills)
in respect of Bills accepted by that Bank shall immediately or
(if later) on the latest date(s) permitted by the relevant law
become due for performance and that Borrower shall immediately
perform those obligations; and
(iii) the Commitments of that Bank shall forthwith or (if later) on
the latest date(s) permitted by the relevant law be cancelled.
19. GUARANTEE
19.1 GUARANTEE
Each Guarantor irrevocably and unconditionally:
(a) as principal obligor guarantees to each Finance Party prompt
performance by each Borrower of all its obligations under the Finance
Documents;
(b) undertakes with each Finance Party that whenever a Borrower does not
pay any amount when due under or in connection with any Finance
Document, the relevant Guarantor shall within 5 Business Days of
demand by the Agent pay that amount as if that Guarantor instead of
the relevant Borrower were expressed to be the principal obligor; and
(c) indemnifies as primary obligor each Finance Party on demand against
any loss or liability suffered by it if any obligation guaranteed by
that Guarantor is or becomes unenforceable, invalid or illegal.
19.2 CONTINUING GUARANTEE
This guarantee is a continuing guarantee and will extend to the ultimate
balance of all sums payable by the Borrowers under the Finance Documents,
regardless of any intermediate payment or discharge in whole or in part.
19.3 REINSTATEMENT
<PAGE>
(a) Where any discharge (whether in respect of the obligations of any Obligor
or any security for those obligations or otherwise) is made in whole or in
part or any arrangement is made on the faith of any payment, security or
other disposition which is avoided or must be restored on insolvency,
liquidation or otherwise without limitation, the liability of a Guarantor
under this Clause 19 shall continue as if the discharge or arrangement had
not occurred.
(b) Each Finance Party may concede or compromise any claim that any
payment, security or other disposition is liable to avoidance or
restoration if it has received legal advice to this effect.
19.4 WAIVER OF DEFENCES
The obligations of each Guarantor under this Clause 19 will not be affected
by an act, omission, matter or thing which, but for this provision, would
reduce, release or prejudice any of its obligations under this Clause 19 or
prejudice or diminish those obligations in whole or in part, including
(whether or not known to it or any Finance Party):
(a) any time or waiver granted to, or composition with, any Obligor or
other person;
(b) the taking, variation, compromise, exchange, renewal or release of, or
refusal or neglect to perfect, take up or enforce, any rights against,
or security over assets of, any Obligor or other person or any
non-presentation or non-observance of any formality or other
requirement in respect of any instrument or any failure to realise the
full value of any security;
(c) any incapacity or lack of powers, authority or legal personality of or
dissolution or change in the members or status of an Obligor or any
other person;
(d) any variation (however fundamental) or replacement of a Finance
Document or any other document or security so that references to that
Finance Document in this Clause 19 shall include each variation or
replacement;
(e) any unenforceability, illegality or invalidity of any obligation of
any person under any Finance Document or any other document or
security, to the intent that the Company's obligations under this
Clause 19 shall remain in full force and its guarantee be construed
accordingly, as if there were no unenforceability, illegality or
invalidity; or
(f) any postponement, discharge, reduction, non-provability or other
similar circumstance affecting any obligation of any Obligor under a
Finance Document resulting from any insolvency, liquidation or
dissolution proceedings or from any law, regulation or order so that
each such obligation shall for the purposes of each Guarantor's
obligations under this Clause 19 be construed as if there were no such
circumstance.
19.5 IMMEDIATE RECOURSE
Each Guarantor waives any right it may have of first requiring any Finance
Party (or any trustee or agent on its behalf) to proceed against or enforce
any other rights or security or claim payment from any person before
claiming from that Guarantor under this Clause 19.
<PAGE>
19.6 APPROPRIATIONS
Until all amounts which may be or become payable by the Borrowers under or
in connection with the Finance Documents have been irrevocably paid in
full, each Finance Party (or any trustee or agent on its behalf) may:
(a) refrain from applying or enforcing any other moneys, security or
rights held or received by that Finance Party (or any trustee or agent
on its behalf) in respect of those amounts, or apply and enforce the
same in such manner and order as it sees fit (whether against those
amounts or otherwise) and no Guarantor shall be entitled to the
benefit of the same; and
(b) hold in a suspense account any moneys received from a Guarantor or on
account of that Guarantor's liability under this Clause 19, and
interest will accrue on those moneys at the rate payable by the
relevant Borrower on the corresponding amount outstanding under this
Agreement.
19.7 NON-COMPETITION
Until all amounts which may be or become payable by the Borrowers under or
in connection with the Finance Documents have been irrevocably paid in
full, no Guarantor shall, after a claim has been made or by virtue of any
payment or performance by it under this Clause 19:
(a) be subrogated to any rights, security or moneys held, received or
receivable by any Finance Party (or any trustee or agent on its
behalf) or be entitled to any right of contribution or indemnity in
respect of any payment made or moneys received on account of that
Guarantor's liability under this Clause 19;
(b) claim, rank, prove or vote as a creditor of any Obligor or its estate
in competition with any Finance Party (or any trustee or agent on its
behalf); or
(c) receive, claim or have the benefit of any payment, distribution or
security from or on account of any Obligor, or exercise any right of
set-off as against any Obligor,
unless the Agent otherwise directs. Each Guarantor shall hold in trust for
and forthwith pay or transfer to the Agent for the Finance Parties any
payment or distribution or benefit of security received by it contrary to
this Clause 19.7 or as directed by the Agent.
19.8 ADDITIONAL SECURITY
This guarantee is in addition to and is not in any way prejudiced by any
other security now or subsequently held by any Finance Party.
20. REPRESENTATIONS AND WARRANTIES
20.1 REPRESENTATIONS AND WARRANTIES
(a) Each Obligor makes the representations and warranties set out in this
Clause 20.2 (Status) to 20.6 (Consents) inclusive to each Finance Party on
the date of this Agreement.
<PAGE>
(b) The Company makes the representations and warranties set out in this Clause
20.7 (Accounts) to Clause 20.10 (No default) inclusive to each Finance
Party on the date of this Agreement.
20.2 STATUS
It is a limited liability company, duly incorporated and validly existing
under the laws of its jurisdiction of incorporation.
20.3 POWERS AND AUTHORITY
It has the corporate power to enter into and perform its obligations under
the Finance Documents to which it is a party and has taken all necessary
corporate action to authorise the entry into and performance of its
obligations under those Finance Documents.
20.4 LEGAL VALIDITY
This Agreement constitutes, and each other Finance Document to which it is
a party (when executed in accordance with the terms of this Agreement) will
constitute, its legal, valid, binding and enforceable obligation (subject
to the qualifications as to matters of law only expressed in any legal
opinion delivered to the Agent pursuant to this Agreement).
20.5 NON-CONFLICT
The entry into and performance of each Finance Document does not and will
not conflict with:
(a) any applicable law or regulation or any applicable official or
judicial order in the jurisdiction of its incorporation;
(b) its constitutional documents; or
(c) any document to which it is a party or which is binding upon it or any
of its assets.
20.6 CONSENTS
All applicable material authorisations required in the jurisdiction of its
incorporation by it in connection with the entry into, performance,
validity and enforceability of each Finance Document to which it is a party
and the transactions contemplated by each such Finance Document have been
obtained or effected and are in (or will at the relevant time be) full
force and effect.
20.7 ACCOUNTS
The audited consolidated accounts of the Company most recently delivered to
the Agent (which, at the date of this Agreement, are the audited
consolidated accounts for the financial year of the Group ended 31st
December, 1998):
(a) have been prepared in accordance with accounting principles and
standards generally accepted in the U.K. and consistently applied or
(if not consistently applied) are accompanied by details of the
inconsistencies; and
<PAGE>
(b) give a true and fair view of consolidated financial condition of the
Company as at the date to which they were drawn up.
20.8 LITIGATION
Save as disclosed to the Agent at the date of this Agreement, no
litigation, arbitration or administrative proceedings has been commenced
or, to its knowledge, is threatened or pending against any member of the
Group which would be reasonably likely to have a Material Adverse Effect.
20.9 FINANCIAL CONDITION
There has been no material adverse change, as at the date of this
Agreement, in the consolidated financial condition of the Company taken as
a whole from that shown in the audited consolidated accounts of the Company
for the year ended 31st December, 1998.
20.10 NO DEFAULT
No Event of Default or (unless this representation is being repeated or
deemed to be repeated on the date of a Request or a Utilisation Date in
respect of a Rollover Utilisation) Potential Event of Default has occurred
and is continuing.
20.11 REPETITION
The representations set out in this Clause 20 shall survive the execution
of this Agreement and (unless the representation or warranty is
specifically expressed to be given only at the date of this Agreement)
shall be deemed to be repeated on each Utilisation Date by the Company and
on the first day of each Interest Period, with reference to the facts and
circumstances then subsisting, as if made at each such time.
21. UNDERTAKINGS
21.1 DURATION
The undertakings in this Clause 21 remain in force from the date of this
Agreement for so long as any amount is or may be outstanding under this
Agreement or any Commitment is in force, except that Clauses 21.7 (Negative
pledge), 21.8 (Disposals) and 21.12 (Environmental Laws) to 21.14
(Insurance) inclusive will not apply to the Target or any of its
Subsidiaries during the Clean-up Period.
21.2 INFORMATION
The Company shall supply to the Agent in sufficient copies for all the
Banks in respect of the items referred to in paragraphs (a) and (b) below
and in sufficient copies for all the Banks in respect of the items referred
to in paragraphs (c) and (d) below if the Agent so requests:
(a) as soon as practicable (and in any event within 180 days after the
close of each of its financial years), the audited consolidated
accounts of the Company and the annual accounts of each Obligor for
that year;
(b) as soon as practicable (and in any event within 120 days of the end of
the first half of
<PAGE>
each of its financial years), the financial information relating to
the Company and its Subsidiaries for that half-year in the form
required to be produced by the London Stock Exchange and in
substantially the same form as previously provided under this
Agreement or (if not) with details of the changes;
(c) all notices or other documents despatched by the Company to the
Company's shareholders (or any class thereof) as soon as practicable
after the same are despatched; and
(d) as soon as practicable, such further available information regarding
the financial condition and operations of the Company or the Group
which is material for evaluation of any Obligor's ability to perform
its obligations under the Finance Documents, as the Agent may
reasonably request.
21.3 NOTIFICATION OF DEFAULT
The Company shall notify the Agent of any Event of Default and of any other
event which with the giving of notice by the Agent and subsequent lapse of
time would be reasonably likely to become an Event of Default promptly upon
becoming aware of its occurrence.
21.4 COMPLIANCE CERTIFICATES
The Company shall, as soon as practicable and in any event within 180 days
of the end of each of its financial years and within 120 days of the end of
the first half of each of its financial years, supply the Agent with a
Compliance Certificate which must be signed by:
(a) if requested by the Agent in the case of a Compliance Certificate as
at the end of its financial year, its auditors; or
(b) in any other case, an authorised signatory of the Company.
21.5 CONSENTS
The Company shall obtain and promptly renew from time to time, and will
promptly upon the request of the Agent furnish certified copies to the
Agent of, all such material authorisations as may be required under any
applicable law or regulation to enable any Obligor to perform its
obligations under any Finance Document.
21.6 PARI PASSU RANKING
Each Obligor undertakes that its obligations under the Finance Documents
shall rank at least pari passu with all of its other present and future
unsecured obligations other than those obligations which are mandatorily
preferred by law and not by reason of contract.
21.7 NEGATIVE PLEDGE
No Obligor shall, and the Company shall not permit any member of the Group
to, create or permit to subsist any Encumbrance on the whole or any part of
their respective present or future assets to secure any of their respective
Borrowed Monies, except for the following:
(a) Encumbrances created with the prior consent of the Majority Banks or
which the
<PAGE>
Majority Banks agree should not be taken into account;
(b) any Encumbrance subsisting over the assets of any company prior to the
date of such company becoming a Subsidiary of the Company, but only to
the extent that the maximum aggregate principal amount of Borrowed
Monies capable of being secured by the Encumbrance at that date is not
subsequently increased;
(c) any Encumbrance over any assets (or documents of title thereto)
acquired by the Company or any such Subsidiary as security for, or for
indebtedness incurred to finance or refinance, all or part of the
acquisition price or the development, redevelopment, modification or
improvement thereof;
(d) any Encumbrance over any assets (or documents of title thereto) which
are acquired by the Company or any such Subsidiary subject to such
Encumbrance;
(e) in connection with any specific contract for the sale, lease or other
disposal of goods, any Encumbrance on the interest of the Company or
any such Subsidiary in:
(i) any contract for such sale, lease or other disposal including the
Company's or any such Subsidiary's interest in the consideration
receivable thereunder; or
(ii) such underlying goods; or
(iii) all other rights, interests, documents and things made, held,
arising or created in connection with any of the foregoing
including, without limiting the generality of the foregoing,
bills of exchange or other negotiable instruments, policies,
letters of credit, guarantees, indemnities or Encumbrances to
secure any of the foregoing;
(f) any other Encumbrance over any assets of the Company or any such
Subsidiary so long as the lower of the aggregate amount of Borrowed
Monies secured by such Encumbrances and the book value of the assets
subject to the Encumbrance(s) does not exceed, when aggregated with
the book value of any other assets the subject of Encumbrances
permitted under this paragraph (f), 15 per cent. (15%) of Net Assets;
(g) any Encumbrance created in substitution for an Encumbrance otherwise
permitted above provided that the value of the assets subject to any
such Encumbrance created in substitution is equal to or less than the
value of the assets the subject of the Encumbrance being discharged as
certified to the Agent by an independent professional valuer; and
(h) any Encumbrance on any asset if simultaneously with the creation of
the Encumbrance the obligations of each Obligor under the Finance
Documents are secured by a comparable Encumbrance.
21.8 DISPOSALS
No Obligor shall, and the Company shall procure that no member of the Group
will, either in a single transaction or in a series of transactions,
whether related or not and whether voluntarily or involuntarily, sell,
transfer, lease or otherwise dispose of all or a substantial
<PAGE>
part of its respective assets, except that the following disposals shall
not be taken into account:
(a) disposals (including the discounting of bills or notes) made in the
ordinary course of business of the disposing entity;
(b) disposals from a member of the Group to another member of the Group;
(c) disposals of cash raised or borrowed for the purposes for which it was
raised or borrowed;
(d) disposals of investments listed or dealt in on any securities exchange
or over-the-counter market (not being investments in any member of the
Group);
(e) disposals of property in exchange for (or sale of assets for cash and
the application within 12 months of such amounts in the acquisition
of) other property comparable or superior as to type, value and
quality;
(f) disposals on arm's length terms (including as to consideration);
(g) disposals where at least 90 per cent. of the Net Proceeds (as defined
in Clause 9.5 (Mandatory prepayment or cancellation following
disposal)) are used to prepay the Loans under the Tranche A Facility
in accordance with Clause 9.5 (Mandatory prepayment or cancellation
following disposal or refinancing);
(h) disposals of obsolete assets for cash; or
(i) disposals, in addition to those permitted under sub-paragraphs (a) to
(h) (both inclusive) above, during any financial year of the Group
where the aggregate book value of the property or assets disposed of
in that financial year does not exceed 10 per cent. (10%) of Net
Assets.
21.9 FINANCIAL COVENANTS
The Company shall procure that:-
(a) the ratio of EBITA to Net Interest Payable is not, at the end of each
Ratio Period of the Group ending on or before 30th June, 2001, less
than 2.5 to 1 and, at the end of each subsequent Ratio Period of the
Group, is not less than 3.0 to 1;
(b) the ratio of Net Debt to EBITDA is not, at the end of each Ratio
Period of the Group ending on or before 30th June, 2001, more than 3.5
to 1 and, at the end of each subsequent Ratio Period of the Group, is
not more than 3 to 1; and
(c) the aggregate of External Net Borrowings do not at any time exceed 20
per cent. of Net Assets.
21.10 HEDGING
(a) The Company shall ensure that, during the period commencing no later than
three months
<PAGE>
after the Merger Date to at least the second anniversary of the date
of this Agreement:
(i) the interest rate exposure on at least L400,000,000 of the
Borrowed Monies of the Group will be hedged; and
(ii) such other short term hedging arrangements as are in its opinion
commercially prudent have been entered into.
(b) Borrowed Monies will be hedged for the purpose of this Clause 21.10 if the
interest on those Borrowed Monies is on a fixed rate basis or on a floating
rate basis but covered by any interest rate swap, cap, collar or other
interest rate protection arrangement.
21.11 RUSSIAN JV
The Company shall not, and shall procure that no other member of the Group
will, increase the amount of its Support to the Russian JV provided after
the date of this Agreement by more than U.S.$90,000,000 in aggregate
without the prior consent of the Majority Banks. "SUPPORT" for this purpose
means any equity investment, subordinated loan or guarantee, indemnity or
other assurance against financial loss or any other similar liability in
respect of any outstanding loan to the Russian JV which is provided or
entered into after the date of this Agreement.
21.12 ENVIRONMENTAL LAWS
The Company shall, and the Company shall procure that each member of the
Group will, comply with and carry out its business in accordance with all
Environmental Laws necessary for the conduct of its business where any
failure to comply or carry out its business in accordance with such
Environmental Laws would have a Material Adverse Effect.
21.13 COMPLIANCE WITH LAWS
The Company shall, and the Company shall procure that each member of the
Group will, comply with and carry out its business in accordance with all
laws necessary for the conduct of its business where any failure to comply
or carry out its business in accordance with that law would have a Material
Adverse Effect.
21.14 INSURANCE
Each Obligor shall, and the Company shall procure that each of its
Subsidiaries will, insure and keep insured its assets with underwriters or
insurance companies or self-insure to such extent and against such risks as
companies engaged in businesses similar to those of the Group normally
insure and where failure to do so would be reasonably likely to have a
Material Adverse Effect.
21.15 ACQUISITIONS
During the period from the date of this Agreement to the later of the date
falling six months after the Merger Date and the date of the publication of
the Company's preliminary results for the year ended 31st December, 2000,
no Obligor shall, and the Company shall procure that no other member of the
Group will, acquire any assets or business or make any investment other
than:
<PAGE>
(a) the Merger; or
(b) an acquisition or investment which does not require the prior approval
of the Company's shareholders in a general meeting; or
(c) an acquisition or investment made with the consent of the Majority
Banks.
21.16 REFINANCING TARGET'S EXISTING FACILITIES
The Company shall ensure that after the Merger Date:
(a) there are always sufficient funds available under the Facilities to
refinance the Target's Existing Facilities;
(b) those facilities will be refinanced as soon as practicable after the
Merger Date and in any event prior to the last day of the Clean up
Period or, if it would avoid breakage costs which in the Company's
opinion (acting reasonably) are material, the date falling 6 months
after the Merger Date;
(c) there are no roll-overs under the Target Existing Facilities; and
(d) the undrawn elements of the Target Existing Facilities are cancelled
as soon as practicable after the Merger Date.
21.17 MERGER
(a) The Company will not, and shall procure that no member of the Group
will, issue any press release or other publicity in relation to the
Merger which makes reference to the Facilities or to any Finance Party
(without the consent of the Majority Banks, such consent not to be
unreasonably withheld or delayed) unless the publicity is required by
law (in which case the Company shall notify the Agent and the Banks of
such requirement as soon as reasonably practicable upon becoming aware
of it).
(b) The Company shall, upon request by the Agent, keep the Agent informed
as to the status and progress of the Merger.
22. DEFAULT
22.1 EVENTS OF DEFAULT
Each of the events set out below is an Event of Default (unless it occurs
in relation to the Target or any of its Subsidiaries during the Clean-up
Period in respect of paragraphs (b), (c) or (d) below):
(a) NON-PAYMENT: any Obligor shall fail to pay when due any amount payable
by it under the Finance Documents and, if caused by technical or
administrative error and capable of remedy, such default remains
unremedied for five Business Days after notice thereof shall have been
received by the Company from the Agent requiring the default to be
remedied; or
<PAGE>
(b) BREACH OF OBLIGATIONS: any Obligor shall fail in any respect which
(except in the case of Clauses 21.7 (Negative pledge) and 21.9
(Financial covenants)) is material in the context of the Finance
Documents to comply with any other provision of the Finance Documents
and, except in the case of Clause 21.8 (Disposals) and 21.9 (Financial
covenants), such failure (if capable of remedy) shall continue
unremedied for a period of twenty-one days after the Company shall
have received notice from the Agent requiring the default to be
remedied; or
(c) MISREPRESENTATION: any representation made or deemed to be made by any
Obligor in the Finance Documents shall prove to be untrue in any
material and adverse respect on the date as of which it is made or
deemed to be made and the same (if capable of remedy) shall continue
unremedied for a period of twenty-one days after the Company has
received written notice of the same from the Agent requiring the same
to be remedied; or
(d) CROSS-ACCELERATION: any Borrowed Monies of any member of the Group at
any time becomes prematurely due and payable as a result of an event
of default (howsoever described) under any contract or document
relating to such Borrowed Monies (after the expiry of any applicable
grace period) and remains unpaid, or any Borrowed Monies of any member
of the Group is not paid when due (after the expiry of any applicable
grace period) and remains unpaid, or any guarantee of Borrowed Monies
by a member of the Group is not honoured when called upon (after the
expiry of any applicable grace period) and remains unpaid, provided
that any such event shall not be an Event of Default if:-
(i) payment of the relevant Borrowed Monies is being contested in
good faith and in accordance with legal advice; or
(ii) the relevant amount of Borrowed Monies remaining unpaid is in
aggregate L20,000,000 or less;
however, there will be excluded from the definition of Borrowed Monies
for the purposes of this paragraph (d) only for a period of six months
commencing on the date on which a company becomes a Subsidiary of the
Company, Borrowed Monies of any company (other than the Target or any
of its Subsidiaries) becoming a Subsidiary of the Company after the
date of this Agreement and outstanding on the date it becomes a
Subsidiary of the Company, but only if, in the case of those Borrowed
Monies becoming prematurely due and payable as a result of an event of
default (howsoever described) under any contract or document relating
to such Borrowed Monies (after the expiry of any applicable grace
period), the Company notifies the Agent and confirms that the Group
has adequate funds to refinance those Borrowed Monies; or
(e) LEGAL PROCESS: a distress or other execution is levied or sued out
upon or against all or a substantial part of the assets of any Obligor
or Principal Subsidiary and is not discharged within thirty days of
having been so levied or sued out; or
(f) INSOLVENCY: any Obligor or Principal Subsidiary makes a general
assignment for the benefit of creditors, is deemed to be unable to pay
its debts as they fall due within the meaning of Section 123(l)(e) of
the Insolvency Act 1986, or admits in writing its
<PAGE>
inability to pay its lawful debts as they mature; or
(g) APPOINTMENT OF RECEIVERS AND MANAGERS: an encumbrancer takes
possession or a receiver, administrator or other similar officer is
appointed of all or a substantial part of the assets of any Obligor or
Principal Subsidiary and is not removed, discharged or paid out within
fourteen days; or
(h) WINDING-UP: any order is made or effective resolution passed for the
winding-up or dissolution of any Obligor or Principal Subsidiary
otherwise than:
(i) a winding up or dissolution for the purpose of an amalgamation or
reconstruction on terms approved by the Majority Banks (such
approval not to be unreasonably withheld or delayed); and
(ii) in the case of a winding-up or dissolution of a Principal
Subsidiary on a solvent basis; or
(i) REPUDIATION OF AGREEMENT: any Obligor repudiates this Agreement or
does or causes to be done any act or thing clearly evidencing an
intention to repudiate this Agreement; or
(j) CHANGE OF CONTROL: at any time any single person or group of persons
acting in concert (as defined in the City Code on Takeovers and
Mergers) acquires control of the Company (as defined in section 416 of
the Income and Corporation Taxes Act 1988); or
(k) MATERIAL ADVERSE CHANGE: any material adverse change in the financial
condition of the Group occurs which would have a material adverse
effect on the ability of the Company to perform its payment
obligations under the Finance Documents.
22.2 ACCELERATION
If any such event as is mentioned in Clause 22.1 (Events of Default) occurs
and at any time thereafter if any such event shall then be continuing, the
Agent shall, if so directed by the Majority Banks, by notice to the
Company:
(a) declare that the Facilities and the Commitments shall be cancelled
forthwith, whereupon the same shall be so cancelled forthwith; and/or
(b) declare all or part of the Loans immediately due and payable,
whereupon the same shall become immediately due and payable together
with all interest accrued thereon and all other amounts payable under
the Finance Documents to the Finance Parties; and/or
(c) declare that each Borrower's obligations under Clause 8.3 (Payment of
Bills) in respect of all outstanding Bills are immediately due and
payable, whereupon they shall become immediately due and payable.
23. THE AGENT AND THE ARRANGERS
<PAGE>
23.1 APPOINTMENT AND DUTIES OF THE AGENT
(a) Each Finance Party (other than the Agent) irrevocably appoints the
Agent to act as its agent under and in connection with the Finance
Documents.
(b) Each Party appointing the Agent irrevocably authorizes the Agent on
its behalf to:
(i) perform the duties and to exercise the rights, powers and
discretions that are specifically delegated to it under or in
connection with the Finance Documents, together with any other
incidental rights, powers and discretions; and
(ii) execute each Finance Document expressed to be executed by the
Agent on that Party's behalf.
(c) The Agent has only those duties which are expressly specified in the
Finance Documents. Those duties are solely of a mechanical and
administrative nature.
23.2 ROLE OF THE ARRANGERS
Except as specifically provided in the Finance Documents, no Arranger has
any obligations of any kind to any other Party under or in connection with
any Finance Document.
23.3 RELATIONSHIP
The relationship between the Agent and the other Finance Parties is that of
agent and principal only. Except as contemplated by the Finance Documents,
nothing in this Agreement constitutes the Agent as trustee or fiduciary for
any other Party or any other person and the Agent need not hold in trust
any moneys paid to it for a Party or be liable to account for interest on
those moneys.
23.4 MAJORITY BANKS' INSTRUCTIONS
(a) The Agent will be fully protected if it acts in accordance with the
instructions of the Majority Banks in connection with the exercise of any
right, power or discretion or any matter not expressly provided for in the
Finance Documents. Any such instructions given by the Majority Banks will
be binding on all the Banks. In the absence of such instructions, the Agent
may act as it considers to be in the best interests of all the Banks.
(b) The Agent is not authorized to act on behalf of a Bank (without first
obtaining that Bank's consent) in any legal or arbitration proceedings
relating to any Finance Document.
23.5 DELEGATION
The Agent may act under the Finance Documents through its personnel and
agents.
23.6 RESPONSIBILITY FOR DOCUMENTATION
Neither the Agent nor any Arranger is responsible to any other Party for:
(a) the execution, genuineness, validity, enforceability or sufficiency of
any Finance Document or any other document;
<PAGE>
(b) the collectability of amounts payable under any Finance Document; or
(c) the accuracy of any statements (whether written or oral) made in or in
connection with any Finance Document (including, without limitation,
any Information Memorandum).
23.7 DEFAULT
(a) The Agent is not obliged to monitor or enquire as to whether or not a
Default has occurred. The Agent will not be deemed to have knowledge of the
occurrence of a Default. However, if the Agent receives notice from a Party
referring to this Agreement, describing the Default and stating that the
event is a Default, it shall promptly notify the Banks.
(b) The Agent may require the receipt of security satisfactory to it, whether
by way of payment in advance or otherwise, against any liability or loss
which it will or may incur in taking any proceedings or action arising out
of or in connection with any Finance Document before it commences those
proceedings or takes that action.
23.8 EXONERATION
(a) Without limiting paragraph (b) below, the Agent will not be liable to any
other Finance Party for any action taken or not taken by it under or in
connection with any Finance Document, unless directly caused by its gross
negligence or wilful misconduct.
(b) No Party may take any proceedings against any officer, employee or agent of
the Agent in respect of any claim it might have against the Agent or in
respect of any act or omission of any kind (including gross negligence or
wilful misconduct) by that officer, employee or agent in relation to any
Finance Document.
23.9 RELIANCE
The Agent may:
(a) rely on any notice or document believed by it to be genuine and
correct and to have been signed by, or with the authority of, the
proper person;
(b) rely on any statement made by a director or employee of any person
regarding any matters which may reasonably be assumed to be within his
knowledge or within his power to verify; and
(c) engage, pay for and rely on legal or other professional advisers
selected by it (including those in the Agent's employment and those
representing a Party other than the Agent).
23.10 CREDIT APPROVAL AND APPRAISAL
Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance Document,
each Bank confirms that it:
(a) has made its own independent investigation and assessment of the
financial condition
<PAGE>
and affairs of each Obligor and its related entities in connection
with its participation in this Agreement and has not relied
exclusively on any information provided to it by the Agent or any
Arranger in connection with any Finance Document; and
(b) will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities while any
amount is or may be outstanding under the Finance Documents or any
Commitment is in force.
23.11 INFORMATION
(a) The Agent shall promptly forward to the person concerned the original or a
copy of any document which is delivered to the Agent by a Party for that
person.
(b) The Agent shall promptly supply a Bank with a copy of each document
received by the Agent under Clause 4 (Conditions precedent) or 30.5
(Additional Guarantors) upon the request and at the expense of that Bank.
(c) Except where this Agreement specifically provides otherwise, the Agent is
not obliged to review or check the accuracy or completeness of any document
it forwards to another Party.
(d) Except as provided above, the Agent has no duty:
(i) either initially or on a continuing basis to provide any Bank with any
credit or other information concerning the financial condition or
affairs of any Obligor or any related entity of any Obligor whether
coming into its possession before, on or after the date of this
Agreement; or
(ii) unless specifically requested to do so by a Bank in accordance with a
Finance Document, to request any certificates or other documents from
any Obligor.
23.12 THE AGENT AND THE ARRANGERS INDIVIDUALLY
(a) If it is also a Bank, the Agent and each Arranger has the same rights and
powers under this Agreement as any other Bank and may exercise those rights
and powers as though it were not the Agent or an Arranger.
(b) The Agent and each Arranger may:
(i) carry on any business with an Obligor or its related entities;
(ii) act as agent or trustee for, or in relation to any financing
involving, an Obligor or its related entities; and
(iii) retain any profits or remuneration in connection with its activities
under this Agreement or in relation to any of the foregoing.
(c) Each Obligor irrevocably authorizes the Agent to disclose to the other
Finance Parties any information which, in the opinion of the Agent, is
received by it in its capacity as the Agent.
(d) The Agent may deduct from any amount received by it for the Banks pro rata
any unpaid
<PAGE>
fees, costs and expenses of the Agent incurred by it in connection with the
Finance Documents.
23.13 INDEMNITIES
(a) Without limiting the liability of any Obligor under the Finance Documents,
each Bank shall forthwith on demand indemnify the Agent for that Bank's
proportion of any liability or loss incurred by the Agent in any way
relating to or arising out of its acting as the Agent, except to the extent
that the liability or loss arises directly from the Agent's gross
negligence or wilful misconduct.
(b) A Bank's proportion of the liability or loss set out in paragraph (a) above
will be the proportion which its participation in the Utilisations (if any)
bears to the Original Currency Amount of all the Utilisations on the date
of the demand. However, if there is no Utilisation outstanding on the date
of demand, then the proportion will be the proportion which its Commitments
bears to the Total Commitments at the date of demand or, if the Total
Commitments have then been cancelled, it bore to the Total Commitments
immediately before being cancelled. For this purpose, if there are
Utilisations or Commitments outstanding under both Tranche A and Tranche B
at the same time, the Original Currency of all Utilisations or Commitments
under Tranche A will be translated into euros at the Agent's Spot Rate of
Exchange on the date of determination.
23.14 COMPLIANCE
(a) The Agent may refrain from doing anything which might, in its opinion,
constitute a breach of any law or regulation or be otherwise actionable at
the suit of any person, and may do anything which, in its opinion, is
necessary or desirable to comply with any law or regulation of any
jurisdiction.
(b) Without limiting paragraph (a) above, the Agent need not disclose any
information relating to any Obligor or any of its related entities if the
disclosure might, in the opinion of the Agent, constitute a breach of any
law or regulation or any duty of secrecy or confidentiality or be otherwise
actionable at the suit of any person.
23.15 CONFIDENTIAL INFORMATION
(a) In acting as Agent for the Banks, the Capital Markets unit of the Agent
shall be treated as a separate entity from any other of the divisions of
the Agent or its Subsidiaries and, without detracting from the generality
of the foregoing, in the event that any of the Agent's divisions (including
its Capital Markets unit) or similar units or Subsidiaries should act for
the Company or any member of the Group in any capacity whether as bankers
or otherwise in relation to any other matter, any information given by the
Company or member of the Group to such divisions, similar units or
Subsidiaries shall be treated as confidential and the Agent shall as
between itself and the Banks not be obliged to disclose the same to any
Bank or any other person.
(b) Notwithstanding anything to the contrary expressed or implied herein and
without prejudice to the generality of paragraph (a) above, the Agent shall
as between itself and the Banks not be obliged to disclose to any Bank or
other person any information supplied by the Company or member of the Group
to it in its capacity as Agent for the Banks which is identified by the
<PAGE>
Company or that member of the Group at the time of supply as being
confidential and supplied solely for the purpose of evaluating in
consultation with the Agent whether any waiver or amendment might be
required to any of the provisions contained herein, provided that nothing
in this Clause 23.15 shall apply to any information supplied by the Company
pursuant to Clause 21.2(a)-(c) (Information).
(c) For the purposes of this Agreement the Agent shall be deemed not to have
any actual knowledge or actual notice of the contents of any information
obtained by it or supplied to it by or on behalf of the Company or any
member of the Group other than the contents of information obtained or
supplied to it as Agent for the Banks under this Agreement and which
information the Agent is not obliged to keep confidential pursuant to
paragraph (a) above.
23.16 RESIGNATION OF THE AGENT
(a) Notwithstanding its irrevocable appointment, the Agent may resign by giving
notice to the Banks and the Company, in which case the Agent may forthwith
appoint one of its Affiliates as successor Agent or, failing that, the
Majority Banks may (with the prior consent of the Company) appoint a
successor Agent.
(b) If the appointment of a successor Agent is to be made by the Majority Banks
but they have not, within 30 days after notice of resignation, appointed a
successor Agent which accepts the appointment, the Agent may (with the
prior consent of the Company) appoint a successor Agent.
(c) The resignation of the Agent and the appointment of any successor Agent
will both become effective only upon the successor Agent notifying all the
Parties that it accepts its appointment. On giving the notification, the
successor Agent will succeed to the position of the Agent and the term
"AGENT" will mean the successor Agent.
(d) The retiring Agent shall, at its own cost, make available to the successor
Agent such documents and records and provide such assistance as the
successor Agent may reasonably request for the purposes of performing its
functions as the Agent under this Agreement.
(e) Upon its resignation becoming effective, this Clause 23 shall continue to
benefit the retiring Agent in respect of any action taken or not taken by
it under or in connection with the Finance Documents while it was the
Agent, and, subject to paragraph (d) above, it shall have no further
obligations under any Finance Document.
(f) The Majority Banks may, by notice to the Agent, require it to resign in
accordance with paragraph (a) above. In this event, the Agent shall resign
in accordance with paragraph (a) above but it shall not be entitled to
appoint one of its Affiliates as successor Agent.
23.17 BANKS
(a) The Agent may treat each Bank as a Bank, entitled to payments under this
Agreement and as acting through its Facility Office(s) until it has
received not less than five Business Days' prior notice from that Bank to
the contrary.
(b) The Agent may at any time, and shall if requested to do so by the Company
or the Majority Banks, convene a meeting of the Banks.
<PAGE>
24. FEES
24.1 ARRANGEMENT FEE
The Company shall pay to the Arrangers an arrangement fee (comprising
underwriting and syndication fees) in the amounts and on the dates agreed
in the Fee Letter between the Arrangers and the Company.
24.2 AGENT'S FEE
The Company shall pay to the Agent for its own account an agency fee in the
amount and on the dates agreed in the Fee Letter between the Agent and the
Company.
24.3 COMMITMENT FEE
(a) The Company shall during the period from (and including) the date of this
Agreement to (but excluding) the Merger Date pay to the Agent for each Bank
a commitment fee computed at the rate of 0.30 per cent. per annum on the
undrawn, uncancelled amount of that Bank's Tranche A Commitment and
computed at the rate of 0.40 per cent. per annum on the undrawn,
uncancelled amount of that Bank's Tranche B Commitment.
(b) The Company shall during the period from (and including) the Merger Date to
(but excluding) the last day of the relevant Commitment Period pay to the
Agent for each Bank a commitment fee computed at the rate of 0.30 per cent.
per annum on the undrawn, uncancelled amount of that Bank's Tranche A
Commitment and computed at the rate equal to 50 per cent. of the Margin
which would be applicable to a Loan under the Tranche B Facility if drawn
on that day on the undrawn, uncancelled amount of that Bank's Tranche B
Commitment.
(c) Commitment fee in respect of the Tranche A Facility is payable in U.S.
Dollars and in respect of the Tranche B Facility is payable in euros.
(d) For the purpose of calculating commitment fee, Loans are taken at their
Original Currency Amount.
(d) Accrued commitment fee is payable quarterly in arrear, with the first
payment being payable three months after the date of this Agreement.
Accrued commitment fee shall also be payable to the Agent for the relevant
Bank on the cancelled amount of its Commitment at the time the cancellation
comes into effect.
24.4 VAT
Any fee referred to in this Clause 24 is exclusive of any value added tax
or any other tax which might be chargeable in connection with that fee. If
any value added tax or other tax is so chargeable, it shall be paid by the
Company at the same time as it pays the relevant fee.
25. EXPENSES
25.1 INITIAL AND SPECIAL COSTS
<PAGE>
The Company shall within 30 days of demand pay the Arrangers the amount of
all reasonable costs and expenses (including reasonable legal fees and any
applicable value added tax) incurred by them in connection with the
negotiation, preparation, printing and execution of this Agreement and the
syndication of the Facilities up to the limit agreed between the Arrangers
and the Company.
25.2 ENFORCEMENT COSTS
The Company shall within 14 days of demand pay to each Finance Party the
amount of all reasonable costs and expenses (including legal fees and any
applicable value added tax) incurred by it in connection with the
enforcement of, or the preservation of any rights under, any Finance
Document.
26. STAMP DUTIES
The Company shall pay and forthwith on demand indemnify each Finance Party
against any liability it incurs in respect of any stamp, registration and
similar tax which is or becomes payable:
(a) in the jurisdiction of incorporation of any Obligor in connection with
the entry into or performance of any Finance Document; or
(b) anywhere in connection with the enforcement of any Finance Document,
including any liability which results from any failure to pay or any delay
in paying such tax.
27. INDEMNITIES
27.1 CURRENCY INDEMNITY
(a) If a Finance Party receives an amount in respect of a Obligor's liability
under the Finance Documents or if that liability is converted into a claim,
proof, judgment or order in a currency other than the currency (the
"CONTRACTUAL CURRENCY") in which the amount is expressed to be payable
under the relevant Finance Document:
(i) that Obligor shall indemnify that Finance Party as an independent
obligation against any loss or liability arising out of or as a result
of the conversion;
(ii) if the amount received by that Finance Party, when converted into the
contractual currency at a market rate in the usual course of its
business is less than the amount owed in the contractual currency, the
Obligor concerned shall forthwith on demand pay to that Finance Party
an amount in the contractual currency equal to the deficit; and
(iii) the Obligor shall forthwith on demand pay to the Finance Party
concerned any exchange costs and taxes payable in connection with any
such conversion.
(b) Each Obligor waives any right it may have in any jurisdiction to pay any
amount under the Finance Documents in a currency other than that in which
it is expressed to be payable.
27.2 OTHER INDEMNITIES
<PAGE>
(a) The Company shall indemnify each Finance Party against any loss or
liability which that Finance Party incurs as a consequence of:
(i) the occurrence of any Event of Default;
(ii) the operation of Clause 22.2 (Acceleration); or
(iii) a Loan (or part of a Loan) not being prepaid in accordance with a
notice of prepayment or (other than by reason of negligence or default
by any Finance Party) a Loan not being made after the Borrower has
delivered a Request.
The Company's liability in each case includes any loss (other than loss of
margin) or expense on account of funds borrowed, contracted for or utilised
to fund any amount payable under any Finance Document, any amount repaid or
prepaid or any Loan.
(b) If a Bank receives or recovers any payment of principal of a Loan or of an
overdue amount other than on the last day of an Interest Period relative to
that Loan or amount so received or recovered, the Bank shall calculate the
difference between:
(i) the additional interest which would have been payable on the principal
so received or recovered had it been received or recovered on the last
day of the relevant Interest Period; and
(ii) the amount of interest which, in the reasonable opinion of the Bank,
would have been payable to the Bank on the last day of that Interest
Period in respect of the principal so received or recovered if the
principal so received or recovered had been placed on deposit by the
Bank earning interest at the rate quoted by the Bank to the relevant
Borrower to be that at which money can be deposited by that Bank with
a prime bank for a period starting on the Business Day following the
date of receipt or recovery and ending on the last day of that
Interest Period.
If (i) is greater than (ii) then the relevant Borrower shall, within five
Business Days of a demand from the relevant Bank, pay to that Bank an
amount equal to the difference.
28. EVIDENCE AND CALCULATIONS
28.1 ACCOUNTS
Accounts maintained by a Finance Party in connection with this Agreement
are prima facie evidence of the matters to which they relate.
28.2 CERTIFICATES AND DETERMINATIONS
Any certification or determination by a Finance Party of a rate or amount
under the Finance Documents must be accompanied by a calculation in
reasonable detail and any applicable invoices and is prima facie evidence
of the matters to which it relates.
28.3 CALCULATIONS
Interest and the fee payable under Clause 24.3 (Commitment fee) accrue from
day to day and are calculated on the basis of the actual number of days
elapsed and a year of 360 days, or, in
<PAGE>
the case of interest payable on an amount denominated in Sterling or unless
market practice otherwise dictates, 365 days.
29. AMENDMENTS AND WAIVERS
29.1 PROCEDURE
(a) Subject to Clause 29.3 (Exceptions), any term of the Finance Documents may
be amended or waived with the agreement of the Company and the Majority
Banks. The Agent may effect, on behalf of any Finance Party, an amendment
or waiver permitted under this Clause.
(b) The Agent shall promptly notify the other Parties of any amendment or
waiver effected under paragraph (a) above, and any such amendment or waiver
shall be binding on all the Parties.
29.2 CHANGE OF CURRENCY
If a change in any currency of a country occurs, this Agreement will be
amended to the extent the Agent and the Company agree is necessary to
reflect the change in currency and to put each Finance Party in the same
position, so far as possible, that it would have been in if no change in
currency had occurred.
29.3 EXCEPTIONS
(a) An amendment or waiver which relates to:
(i) the definition of "MAJORITY BANKS" in Clause 1.1 (Definitions);
(ii) an extension of the date (including any Repayment Date) for, or a
decrease in an amount or a change in the currency of, any payment to
that Bank under the Finance Documents (including the Margin, the
Acceptance Commission Rate and any fee payable under Clause 24.3
(Commitment fee));
(iii) an increase in a Bank's Commitment;
(iv) a term of a Finance Document which expressly requires the consent of
all the Banks; or
(v) Clause 2.3 (Nature of a Finance Party's rights and obligations),
Clause 30.2 (Transfers by Banks), Clause 33 (Pro rata sharing) or this
Clause 29,
may not be effected without the agreement of all the Banks.
(b) An amendment or waiver which relates to the rights and/or obligations of
the Agent may not be effected without the agreement of the Agent.
29.4 WAIVERS AND REMEDIES CUMULATIVE
The rights of each Party under the Finance Documents:
(a) may be exercised as often as necessary;
<PAGE>
(b) are cumulative and not exclusive of its rights under the general law;
and
(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any such right is not a waiver of
that right.
30. CHANGES TO THE PARTIES
30.1 TRANSFERS BY OBLIGORS
No Obligor may assign, transfer, novate or dispose of any of, or any
interest in, its rights and/or obligations under the Finance Documents.
30.2 TRANSFERS BY BANKS
(a) A Bank (the "EXISTING BANK") may, subject to paragraph (b) below, at any
time assign, transfer or novate any of its Commitments and/or any of its
rights and/or obligations under this Agreement to another bank or financial
institution which is a Qualifying Bank (the "NEW BANK").
(b) (i) A transfer of part of a Commitment must be in, and must result in the
Existing Bank retaining, a minimum Original Currency Amount of at
least U.S.$10,000,000 or euro 10,000,000 (as appropriate). For the
avoidance of doubt this condition does not apply to a transfer of the
whole of a Commitment.
(ii) The prior consent of the Company is required for any assignment,
transfer or novation under paragraph (a) above to a new Bank which is
not a Qualifying Bank.
(iii) For the period from the date of this Agreement to the date falling 30
days from the date on which the Arrangers have confirmed to the
Company that the primary syndication process has been completed, a
Bank may only assign, transfer or novate part of one of its
Commitments if it assigns, transfers or novates at the same time a pro
rata proportion of its other Commitment.
(c) A transfer of obligations will be effective only if either:
(i) the obligations are novated in accordance with Clause 30.3 (Procedure
for novations); or
(ii) the New Bank confirms to the Agent and the Company that it undertakes
to be bound by the terms of this Agreement as a Bank in form and
substance satisfactory to the Agent. On the transfer becoming
effective in this manner the Existing Bank shall be relieved of its
obligations under this Agreement to the extent that they are
transferred to the New Bank.
(d) If a Bank gives the Company prior notice, a Bank may sub-contract an
obligation to a person if that Bank remains liable under this Agreement for
that obligation.
(e) On each occasion an Existing Bank assigns, transfers or novates any of its
Commitments and/or any of its rights and/or obligations under this
Agreement (otherwise than pursuant to a Syndication Agreement), the New
Bank shall, on the date the assignment, transfer and/or
<PAGE>
novation takes effect, pay to the Agent for its own account a fee of
L1,000.
(f) An Existing Bank is not responsible to a New Bank for:
(i) the execution, genuineness, validity, enforceability or sufficiency of
any Finance Document or any other document;
(ii) the collectability of amounts payable under any Finance Document; or
(iii) the accuracy of any statements (whether written or oral) made in or
in connection with any Finance Document.
(g) Each New Bank confirms to the Existing Bank and the other Finance Parties
that it:
(i) has made its own independent investigation and assessment of the
financial condition and affairs of each Obligor and its related
entities in connection with its participation in this Agreement and
has not relied exclusively on any information provided to it by the
Existing Bank in connection with any Finance Document; and
(ii) will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities while any
amount is or may be outstanding under this Agreement or any Commitment
is in force.
(h) Nothing in any Finance Document obliges an Existing Bank to:
(i) accept a re-transfer from a New Bank of any of the rights and/or
obligations assigned, transferred or novated under this Clause 30; or
(ii) support any losses incurred by the New Bank by reason of the
non-performance by any Borrower of its obligations under this
Agreement or otherwise.
(i) Any reference in this Agreement to a Bank includes a New Bank but excludes
a Bank if no amount is or may be owed to or by it under this Agreement and
its Commitments have been cancelled or reduced to nil.
30.3 PROCEDURE FOR NOVATIONS
(a) A novation is effected if:
(i) the Existing Bank and the New Bank deliver to the Agent a duly
completed certificate, substantially in the form of Part I of Schedule
5 (a "NOVATION CERTIFICATE"); and
(ii) the Agent executes it.
(b) Each Party (other than the Existing Bank and the New Bank) irrevocably
authorises the Agent to execute any duly completed Novation Certificate on
its behalf.
(c) To the extent that they are expressed to be the subject of the novation in
the Novation Certificate:
<PAGE>
(i) the Existing Bank and the other Parties (the "EXISTING PARTIES") will
be released from their obligations to each other (the "DISCHARGED
OBLIGATIONS");
(ii) the New Bank and the existing Parties will assume obligations towards
each other which differ from the discharged obligations only insofar
as they are owed to or assumed by the New Bank instead of the Existing
Bank;
(iii) the rights of the Existing Bank against the existing Parties and vice
versa (the "DISCHARGED RIGHTS") will be cancelled; and
(iv) the New Bank and the existing Parties will acquire rights against each
other which differ from the discharged rights only insofar as they are
exercisable by or against the New Bank instead of the Existing Bank,
all on the date of execution of the Novation Certificate by the Agent or,
if later, the date specified in the Novation Certificate.
30.4 ADDITIONAL BORROWERS
(a) If the Company wishes one of its Subsidiaries (incorporated in a country,
or in a jurisdiction within a country, which is a member of the
Organisation for Economic Co-operation and Development) to become an
Additional Borrower, then it may (after prior consultation with the Agent)
deliver to the Agent a Borrower Accession Agreement.
(b) On delivery of a Borrower Accession Agreement, executed by the relevant
Subsidiary and the Company, the Subsidiary concerned will become an
Additional Borrower.
(c) Delivery of a Borrower Accession Agreement, executed by the relevant
Subsidiary and the Company, constitutes confirmation by that Subsidiary and
the Company that the representations and warranties set out in Clauses 20.2
(Status) to 20.6 (Consents) are correct on the date of the Borrower
Accession Agreement, as if made by them with reference to the facts and
circumstances then existing.
30.5 ADDITIONAL GUARANTORS
(a) If the Company wishes one of its Subsidiaries to become an Additional
Guarantor, then it may (with, except in the case of Rexam Inc. and the
Target, the prior agreement of the Agent acting on instructions of the
Majority Banks) deliver to the Agent the documents listed in Part III of
Schedule 2.
(b) On delivery of a Guarantor Accession Agreement, executed by the relevant
Subsidiary and the Company, the Subsidiary concerned will become an
Additional Guarantor. An Additional Guarantor need only give a guarantee to
extent it is permitted to do so under applicable law and, notwithstanding
the definition of Guarantor Accession Agreement in Clause 1.1
(Definitions), may change the form of Guarantor Accession Agreement to
reflect any applicable limit on its liability.
(c) Delivery of a Guarantor Accession Agreement, executed by the relevant
Subsidiary and the Company, constitutes confirmation by that Subsidiary and
the Company that the
<PAGE>
representations and warranties set out in Clauses 20.2 (Status) to 20.6
(Consents) are correct on the date of the Guarantor Accession Agreement, as
if made by them with reference to the facts and circumstances then
existing.
30.6 REFERENCE BANKS
If a Reference Bank (or, if a Reference Bank is not a Bank, the Bank of
which it is an Affiliate) ceases to be a Bank, the Agent shall (in
consultation with the Company) appoint another Bank or an Affiliate of a
Bank to replace that Reference Bank.
30.7 REGISTER
The Agent shall keep a register of all the Parties and shall supply any
other Party (at that Party's expense) with a copy of the register on
request.
30.8 CESSATION OF OBLIGORS
If:-
(a) no amount is owed under the Finance Documents by a Borrower (other
than the Company), the Company may by notice to the Agent designate
that that Borrower will cease to be a Borrower for the purposes of
this Agreement. Without prejudice to any accrued right which a Finance
Party may have against that Borrower and notwithstanding any other
term of this Agreement, that Borrower shall cease to be a Borrower for
the purposes of this Agreement on the date specified in the notice;
and
(b) no Default is outstanding or would result, the Company may by notice
to the Agent designate that a Guarantor (other than the Company) will
cease to be a Guarantor for the purposes of this Agreement. Without
prejudice to any accrued right which a Finance Party may have against
that Guarantor and notwithstanding any other term of this Agreement,
that Guarantor shall cease to be a Guarantor for the purposes of this
Agreement on the date specified in the notice.
30.9 INCREASED COSTS ETC.
(a) If:-
(i) a Bank assigns, transfers or novates any of its Commitments and/or
rights and/or obligations under the Finance Documents or changes its
Facility Office, with or without the prior consent of the Company; and
(ii) as a result of circumstances existing at the date the assignment,
transfer, novation or change occurs, an Obligor would be obliged to
make a payment to the New Bank or Bank acting through its new Facility
Office under Clause 15 (Taxes) or Clause 17 (Increased costs) or
Clause 18 (Illegality),
then, notwithstanding the provisions of Clause 15 (Taxes), 17 (Increased
costs) or 18 (Illegality), the relevant New Bank or Bank acting through its
new Facility Office is only entitled to receive payment under those Clauses
from an Obligor in respect of those circumstances to the same extent as the
relevant Existing Bank or Bank acting through its previous Facility Office
would have been if the assignment, transfer, novation or change had
<PAGE>
not occurred.
(b) For the purposes of paragraph (a) above, "circumstances existing at the
date the assignment transfer, novation or change occurs" includes any law
or regulation which at the date the assignment, transfer, novation or
change occurs is reasonably likely to be implemented after that date.
31. DISCLOSURE OF INFORMATION
(a) A Bank may disclose to one of its Affiliates or any person with whom it is
proposing to enter, or has entered into, any kind of transfer,
participation or other agreement in relation to this Agreement:
(i) a copy of any Finance Document; and
(ii) any information which that Bank has acquired under or in connection
with any Finance Document,
but only if the recipient of the information has agreed with the Company to
keep that information confidential on the terms of paragraph (b) below.
(b) Each Finance Party shall keep confidential and shall not, without the prior
consent of the Company, use any information (other than information which
is publicly available other than as a result of a breach by that Finance
Party of this paragraph (b)) supplied by or on behalf of any Obligor under
or in connection with the Finance Documents otherwise than in connection
with the Finance Documents. However, the restriction set out in this
paragraph (b) shall not apply to, and each Finance Party shall be entitled
to disclose, information:-
(i) in connection with any legal proceedings arising out of or in
connection with a Finance Document; or
(ii) if required to do so by an order of a court of competent jurisdiction
whether under any procedure for discovering documents or otherwise; or
(iii) pursuant to any law or regulation in accordance with which that
Finance Party is required or accustomed to act; or
(iv) to a governmental, banking, taxation or other regulatory authority of
any competent jurisdiction; or
(v) to its accountants or legal advisers.
32. SET-OFF
Except to the extent that an Encumbrance is created, a Finance Party may,
if an Event of Default is then outstanding, set off any matured obligation
owed by an Obligor under the Finance Documents (to the extent beneficially
owned by that Finance Party) against any obligation (whether or not
matured) owed by that Finance Party to that Obligor, regardless of the
place of payment, booking branch or currency of either obligation. If the
obligations are in different currencies, the Finance Party may convert
either obligation at a market rate of
<PAGE>
exchange in its usual course of business for the purpose of the set-off.
If either obligation is unliquidated or unascertained, the Finance Party
may set off in an amount estimated by it in good faith to be the amount of
that obligation.
33. PRO RATA SHARING
33.1 REDISTRIBUTION
If any amount owing by an Obligor under this Agreement to a Finance Party
(the "RECOVERING FINANCE PARTY") is discharged by payment, set-off or any
other manner other than through the Agent in accordance with Clause 14
(Payments) (a "RECOVERY"), then:
(a) the recovering Finance Party shall, within three Business Days, notify
details of the recovery to the Agent;
(b) the Agent shall determine whether the recovery is in excess of the
amount which the recovering Finance Party would have received had the
recovery been received by the Agent and distributed in accordance with
Clause 14 (Payments);
(c) subject to Clause 33.3 (Exceptions), the recovering Finance Party
shall within three Business Days of demand by the Agent pay to the
Agent an amount (the "REDISTRIBUTION") equal to the excess;
(d) the Agent shall treat the redistribution as if it were a payment by
the Obligor concerned under Clause 14 (Payments) and shall pay the
redistribution to the Finance Parties (other than the recovering
Finance Party) in accordance with Clause 14.7 (Partial payments); and
(e) after payment of the full redistribution, the recovering Finance Party
will be subrogated to the portion of the claims paid under paragraph
(d) above and that Obligor will owe the recovering Finance Party a
debt which is equal to the redistribution, immediately payable and of
the type originally discharged.
33.2 REVERSAL OF REDISTRIBUTION
If under Clause 33.1 (Redistribution):
(a) a recovering Finance Party must subsequently return a recovery, or an
amount measured by reference to a recovery, to an Obligor; and
(b) the recovering Finance Party has paid a redistribution in relation to
that recovery,
each Finance Party shall, within three Business Days of demand by the
recovering Finance Party through the Agent, reimburse the recovering
Finance Party all or the appropriate portion of the redistribution paid to
that Finance Party together with interest on the amount to be returned to
the recovering Finance Party for the period whilst it held the
re-distribution. Thereupon, the subrogation in Clause 33.1(e)
(Redistribution) will operate in reverse to the extent of the
reimbursement.
33.3 EXCEPTIONS
<PAGE>
(a) A recovering Finance Party need not pay a redistribution to the extent that
it would not, after the payment, have a valid claim against the Obligor
concerned in the amount of the redistribution pursuant to Clause 33.1(e)
(Redistribution).
(b) A recovering Finance Party is not obliged to share with any other Finance
Party any amount which the recovering Finance Party has received or
recovered as a result of taking legal proceedings, if the other Finance
Party had an opportunity to participate in those legal proceedings but did
not do so or did not take separate legal proceedings.
34. SEVERABILITY
If a provision of any Finance Document is or becomes illegal, invalid or
unenforceable in any jurisdiction, that shall not affect:
(a) the validity or enforceability in that jurisdiction of any other provision
of the Finance Documents; or
(b) the validity or enforceability in other jurisdictions of that or any other
provision of the Finance Documents.
35. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts, and
this has the same effect as if the signatures on the counterparts were on a
single copy of the Finance Document.
36. NOTICES
36.1 GIVING OF NOTICES
All notices or other communications under or in connection with this
Agreement shall be given in writing and, unless otherwise stated, may be
made by letter or facsimile. Any such notice will be deemed to be given as
follows:
(a) if by letter, when delivered personally or on actual receipt; and
(b) if by facsimile, when received in legible form.
However, a notice given in accordance with the above but received on a
non-working day or after business hours in the place of receipt will only
be deemed to be given on the next working day in that place.
36.2 ADDRESSES FOR NOTICES
(a) The address and facsimile number of each Party (other than the Company and
the Agent) for all notices under or in connection with the Finance
Documents are:
(i) those notified by that Party for this purpose to the Agent on or
before the date it becomes a Party; or
(ii) any other notified by that Party for this purpose to the Agent by not
less than five
<PAGE>
Business Days' notice.
(b) The address and facsimile number of the Obligors are:
Rexam PLC
4 Millbank
London
SW1P 3XR
Facsimile no: 0207 227 4109
For the attention of: The Treasurer
or such other as the Company may notify to the Agent by not less than five
Business Days' notice.
(c) The address and facsimile number of the Agent are:
Lloyds TSB Bank PLC
Bank House
Wine Street
Bristol BS1 2AN
Facsimile no: 0117 923 3367
For the attention of: Loans Administration
or such other as the Agent may notify to the other Parties by not less than
five Business Days' notice.
(d) All notices from or to an Obligor shall be sent through the Agent.
(e) The Agent shall, promptly upon request from any Party, give to that Party
the address or facsimile number of any other Party applicable at the time
for the purposes of this Clause.
(f) Each Obligor (other than the Company) irrevocably appoints the Company to
act as its agent for the purpose of executing, giving and receiving any
document (including a Finance Document), notice or other communication in
connection with this Agreement.
37. LANGUAGE
(a) Any notice given under or in connection with any Finance Document shall be
in English.
(b) All other documents provided under or in connection with any Finance
Document shall be:
(i) in English; or
(ii) if not in English, accompanied by a certified English translation and,
in this case, the English translation shall prevail unless the
document is a statutory or other official document.
38. JURISDICTION
<PAGE>
38.1 SUBMISSION
For the benefit of each Finance Party, each Obligor agrees that the courts
of England have jurisdiction to settle any disputes in connection with any
Finance Document and accordingly submits to the jurisdiction of the English
courts.
38.2 SERVICE OF PROCESS
Without prejudice to any other mode of service, each Obligor (other than an
Obligor incorporated in England and Wales):
(a) irrevocably appoints the Company as its agent for service of process
in relation to any proceedings before the English courts in connection
with any Finance Document;
(b) agrees that failure by a process agent to notify the relevant Obligor
of the process will not invalidate the proceedings concerned; and
(c) consents to the service of process relating to any such proceedings by
prepaid posting of a copy of the process to its address for the time
being applying under Clause 36.2 (Addresses for notices).
38.3 FORUM CONVENIENCE AND ENFORCEMENT ABROAD
Each Obligor:
(a) waives objection to the English courts on grounds of inconvenient
forum or otherwise as regards proceedings in connection with a Finance
Document; and
(b) agrees that a judgment or order of an English court in connection with
a Finance Document is conclusive and binding on it and may be enforced
against it in the courts of any other jurisdiction.
38.4 NON-EXCLUSIVITY
Nothing in this Clause 38 limits the right of a Finance Party to bring
proceedings against an Obligor in connection with any Finance Document:
(a) in any other court of competent jurisdiction; or
(b) concurrently in more than one jurisdiction.
39. GOVERNING LAW
This Agreement is governed by English law.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
<PAGE>
SCHEDULE 1
BANKS AND COMMITMENTS
PART I
BANKS AND COMMITMENTS - TRANCHE A FACILITY
<TABLE>
<CAPTION>
BANKS COMMITMENTS
U.S.$
<S> <C>
ABN AMRO BANK N.V. 228,571,429
BANQUE NATIONALE DE PARIS, LONDON BRANCH 228,571,429
CREDIT SUISSE FIRST BOSTON, LONDON BRANCH 228,571,429
CITIBANK, N.A. 228,571,429
HSBC BANK plc 228,571,428
LLOYDS TSB BANK plc 228,571,428
WESTDEUTSCHE LANDESBANK GIROZENTRALE 228,571,428
Total Tranche A U.S.$1,600,000,000
Commitments
</TABLE>
PART II
BANKS AND COMMITMENTS - TRANCHE B FACILITY
<TABLE>
<CAPTION>
BANKS COMMITMENTS
EURO
<S> <C>
ABN AMRO BANK N.V. 285,714,285
BANQUE NATIONALE DE PARIS, LONDON BRANCH 285,714,285
CREDIT SUISSE FIRST BOSTON, LONDON BRANCH 285,714,286
CITIBANK, N.A. 285,714,286
HSBC BANK plc 285,714,286
LLOYDS TSB BANK plc 285,714,286
WESTDEUTSCHE LANDESBANK GIROZENTRALE 285,714,286
Total Tranche B euro 2,000,000,000
Commitments
</TABLE>
------------------------------------------------------------
<PAGE>
SCHEDULE 2
CONDITIONS PRECEDENT DOCUMENTS
PART I
TO BE DELIVERED ON OR ABOUT SIGNING
1. A copy of the memorandum and articles of association and certificate of
incorporation of the Company.
2. A copy of a resolution of a duly authorised committee of the board of
directors of the Company, approving the terms of, and the transactions
contemplated by, this Agreement, together with a copy of a resolution of
the board of directors of the Company establishing the committee.
3. A specimen of the signature of each person authorized by resolution
referred to in paragraph 2 above to sign this Agreement and to sign and/or
despatch all documents and notices (including Requests) to be signed and/or
despatched by it under or in connection with this Agreement.
4. A certificate of an authorized signatory of the Company confirming that the
execution by the Company of each Finance Document to which it is a party
and the performance by it of its obligations under each such Finance
Document are within its corporate powers and have been duly approved by all
necessary corporate action.
5. A certificate of an authorized signatory of the Company certifying that
each copy document specified in Part I of this Schedule 2 is correct,
complete and in full force and effect as at a date no earlier than the date
of this Agreement.
6. A legal opinion of Clifford Chance, legal advisers to the Arrangers and the
Agent, addressed to the Finance Parties.
<PAGE>
PART II
TO BE DELIVERED BEFORE THE FIRST UTILISATION
1. The Merger Agreement.
2. The stockholders agreement dated on or about the date of this Agreement
between the Company and various shareholders of the Target.
3. The Press Release.
4. The circular to shareholders of the Company relating to the Merger.
5. Evidence that the Existing Facilities:
(i) have been, or will on the first Utilisation Date be, cancelled in
full; and
(ii) will within one month of the first Utilisation Date be, repaid in
full.
6. Confirmation from the Company that the date of the acceptance for payment
of shares of common stock of the Target pursuant to and subject to the
conditions of tender offer made by a subsidiary of the Company for the
Target in order to effect the Merger (the "OFFER") has occurred by, or will
occur on, the first Utilisation Date.
7. Confirmation from the Company that its shareholders have approved the
acquisition of the Target.
8. Confirmation from the Company that a majority of all of the outstanding
shares of common stock of the Target have been accepted for payment
pursuant to the terms of the Offer.
9. Confirmation from the Company that:
(i) the EU Anti-trust Clearance has been obtained; and
(ii) any waiting period (and any extension thereof) applicable to the
Merger under the Hart-Scott-Rodino Antitrust Improvements Act of 1976
(as amended) shall have been terminated or shall have expired.
<PAGE>
PART III
TO BE DELIVERED BY AN ADDITIONAL GUARANTOR
(a) A Guarantor Accession Agreement, duly executed as a deed by the Additional
Guarantor and the Company.
(b) A copy of the constitutional documents of the Additional Guarantor.
(c) A copy of a resolution of the board of directors of the Additional
Guarantor approving the terms of, and the transactions contemplated by, the
Guarantor Accession Agreement.
(d) A specimen of the signature of each person authorised to sign the Guarantor
Accession Agreement and to sign and/or despatch all documents to be signed
and/or despatched by it under or in connection with this Agreement.
(e) A legal opinion of lawyers in the jurisdiction of incorporation of the
Additional Guarantor, acceptable to the Agent, addressed to the Finance
Parties.
(f) A certificate of an authorised signatory of the Additional Guarantor
certifying that each copy document specified in Part III of this Schedule 2
is correct, complete and in full force and effect as at a date no earlier
than the date of the Guarantor Accession Agreement.
<PAGE>
SCHEDULE 3
CALCULATION OF THE MANDATORY COST
(a) The Mandatory Cost for a Loan for its Interest Period or each of its
Interest Periods, as appropriate, is the rate determined by the Agent to be
equal to the arithmetic mean (rounded upward, if necessary, to four decimal
places) of the respective rates notified by each of the Reference Banks to
the Agent and calculated in accordance with the following formulae:
In relation to a Loan denominated in Sterling:
BY + S(Y-Z) + F X 0.01% PER ANNUM = Mandatory Cost 100-(B + S)
in relation to any other Loan:
F X 0.01% PER ANNUM = Mandatory Cost
---------
300
where on the day of application of the formula:
B is the percentage of the Reference Bank's eligible liabilities (in
excess of any stated minimum) which the Bank of England requires the
Reference Bank to hold on a non-interest-bearing deposit account in
accordance with its cash ratio requirements;
Y is LIBOR as appropriate for the relevant Interest Period;
S is the percentage of the Reference Bank's eligible liabilities which
the Bank of England requires the Reference Bank to place as a special
deposit;
Z is the interest rate per annum allowed by the Bank of England on
special deposits; and
F is the charge payable by the Reference Bank to the Financial Services
Authority under paragraph 2.02 or 2.03 (as appropriate) of the Fees
Regulations (but where for this purpose, the figure in paragraph 2.02b
and 2.03b will be deemed to be zero) expressed in pounds per L1
million of the fee base of the Reference Bank.
(b) For the purposes of this Schedule 3:
(i) "ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" have the meanings given
to them at the time of application of the formula by the Bank of
England; and
(ii) "FEE BASE" has the meaning given to it in the Fees Regulations;
(iii) "FEES REGULATIONS" means the Banking Supervision (Fees) Regulations
1998 and/or any other regulations governing the payment of fees for
banking supervision.
(c) In the application of the formula, B, Y, S and Z are included in the
formula as figures and not
<PAGE>
as percentages, e.g. if B = 0.5% and Y = 15%, BY is calculated as 0.5 x 15.
(d) If a Reference Bank does not supply a rate to the Agent, the applicable
Mandatory Cost will be determined on the basis of the rate(s) supplied by
the remaining Reference Banks.
(e) (i) The formula is applied on the first day of the relevant Interest
Period.
(ii) Each rate calculated in accordance with the formula is, if necessary,
rounded upward to four decimal places.
(f) If the Agent determines that a change in circumstances has rendered, or
will render, the formula inappropriate, the Agent (after consultation with
the Banks) shall notify the Company of the manner in which the Mandatory
Cost will subsequently be calculated. The manner of calculation so notified
by the Agent must not place the Banks in a better or worse position than
they had prior to the change of circumstances and shall, in the absence of
manifest error, be binding on all the Parties.
<PAGE>
SCHEDULE 4
FORM OF REQUEST
To: LLOYDS TSB BANK plc as Agent
From: [BORROWER]
Date: [ ]
REXAM PLC - US$1,600,000,000 AND EURO 2,000,000,000 CREDIT AGREEMENT
DATED , 2000
1. We wish to utilise the [Tranche A Facility/the Tranche B Facility* by way
of Loans/Bills*] as follows:
(a) Utilisation Date: [ ]
(b) Amount of currency: [ ]
(c) [First]** Interest Period/Term: [ ]
(d) Payment instructions: [ ].
2. We confirm that each condition specified in Clause 4.2 (Further conditions
precedent) is satisfied on the date of this Request.
By:
[BORROWER]
Authorized Signatory
* Delete as applicable
** Include only for Term Loans
<PAGE>
SCHEDULE 5
FORMS OF ACCESSION DOCUMENTS
PART I
NOVATION CERTIFICATE
To: LLOYDS TSB BANK plc as Agent
From: [THE EXISTING BANK] and [THE NEW BANK] Date: [ ]
REXAM PLC - US$1,600,000,000 AND EURO 2,000,000,000 CREDIT AGREEMENT
DATED , 2000
We refer to Clause 30.3 (Procedure for novations).
1. We [ ] (the "EXISTING BANK") and [ ] (the "NEW BANK") agree to the Existing
Bank and the New Bank novating all or part of the Existing Bank's
Commitments, rights and obligations referred to in the Schedule in
accordance with Clause 30.3 (Procedure for novations).
2. The specified date for the purposes of Clause 30.3(c) (Procedure for
novations) is [date of novation].
3. The Facility Office and address for notices of the New Bank for the
purposes of Clause 36.2 (Addresses for notices) are set out in the
Schedule.
4. This Novation Certificate is governed by English law.
THE SCHEDULE
COMMITMENTS/RIGHTS AND OBLIGATIONS TO BE NOVATED
<TABLE>
<CAPTION>
[insert relevant details].
<S> <C>
[Existing Bank] [New Bank]
By: By:
Date: Date:
[NEW BANK]
[Facility Office Address for notices]
LLOYDS TSB BANK plc
</TABLE>
By:
<PAGE>
Date:
<PAGE>
PART II
BORROWER ACCESSION AGREEMENT
To: LLOYDS TSB BANK plc as Agent
From: [PROPOSED BORROWER] and REXAM PLC Date: [ ]
REXAM PLC - US$1,600,000,000 AND EURO 2,000,000,000 CREDIT AGREEMENT
DATED , 2000 (THE "CREDIT AGREEMENT")
We refer to Clause 30.4 (Additional Borrowers).
We, [name of company] of [Registered Office] (Registered no. [ ]), agree to
become an Additional Borrower and to be bound by the terms of the Credit
Agreement as an Additional Borrower in accordance with Clause 30.4 (Additional
Borrowers).
Our address for notices for the purposes of Clause 36.2 (Addresses for notices)
is:
[
]
We, [name of company] and Rexam PLC, confirm that the representations and
warranties set out in Clauses 20.2 (Status) to 20.6 (Consents) are correct on
the date of this Agreement.
This Agreement is governed by English law.
By:
[PROPOSED BORROWER]
Authorized Signatory
By:
REXAM PLC
Authorized Signatory
<PAGE>
PART III
GUARANTOR ACCESSION AGREEMENT
To: LLOYDS TSB BANK plc as Agent
From: [PROPOSED GUARANTOR] and REXAM PLC Date: [ ]
REXAM PLC - US$1,600,000,000 AND EURO 2,000,000,000 CREDIT AGREEMENT
DATED , 2000 (THE "CREDIT AGREEMENT")
We refer to Clause 30.5 (Additional Guarantors).
We, [name of company] of [Registered Office] (Registered no. [ ]), agree to
become an Additional Guarantor and to be bound by the terms of the Credit
Agreement as an Additional Guarantor in accordance with Clause 30.5 (Additional
Guarantors).
Our address for notices for the purposes of Clause 36.2 (Addresses for notices)
is:
[
]
We, [name of company] and Rexam PLC, confirm that the representations and
warranties set out in Clauses 20.2 (Status) to 20.6 (Consents) are correct on
the date of this Agreement.
This Agreement is governed by English law.
By:
[PROPOSED GUARANTOR]
Authorized Signatory
By:
REXAM PLC
Authorized Signatory
<PAGE>
SCHEDULE 6
FORM OF BILL
FACE OF BILL
No. for L .............................
.....................................
To
On .......................pay against this Bill of Exchange to our order
the sum of ............................ for value received against [ ].
<TABLE>
<CAPTION>
Accepted by:
<S> <C>
For and on behalf of For and on behalf of
[BANK] [BORROWER]
................................ ................................
Authorised Signatory Authorised Signatory
REVERSE OF BILL
For and on behalf of
[BORROWER]
................................
Authorised Signatory
</TABLE>
<PAGE>
SCHEDULE 7
FORM OF COMPLIANCE CERTIFICATE
To: LLOYDS TSB BANK plc as Agent
From: REXAM PLC/AUDITORS
Date: [ ]
REXAM PLC - US$1,600,000,000 AND EURO 2,000,000,000 CREDIT AGREEMENT
DATED , 2000 (THE "CREDIT AGREEMENT")
This is a Compliance Certificate (as defined in the Credit Agreement).
We confirm that:-
(i) as at [ ] (the "relevant date"), EBITA was [ ], and Net Interest Payable
was [ ]; therefore, the ratio of EBITA to Net Interest Payable was [ ]; the
minimum ratio permitted under Clause 21.9(a) (Financial covenants) is [ ];
(ii) as at the relevant date, Net Debt was L[ ] and EBITDA was L[ ]; therefore
the ratio of Net Debt to EBITDA was [ ]:1; the maximum ratio permitted
under Clause 21.9(b) (Financial covenants) is [ ]:1; and
(iii) as at the relevant date, External Net Borrowings was [ ] and Net Assets
was L[ ]; therefore, the percentage of External Net Borrowings to Net
Assets was [ ]%; the maximum percentage permitted under Clause 21.9(c)
(Financial covenants) is 20%.
By:
REXAM PLC/AUDITORS
Authorised Signatory
<PAGE>
SCHEDULE 8
FORM OF MARGIN CERTIFICATE
To: LLOYDS TSB BANK plc as Agent
From: REXAM PLC
Date: [ ]
REXAM PLC - US$1,600,000,000 AND EURO 2,000,000,000 CREDIT AGREEMENT
DATED , 2000 (THE "CREDIT AGREEMENT")
This is a Margin Certificate (as defined in the Credit Agreement).
We confirm that:-
(i) as at [ ], the ratio of Net Debt to EBITDA was [ ] to 1 and was therefore
within the following range [ ]; and
(ii) accordingly the applicable Margin for the Tranche B Facility is, in
accordance with Clause 11.5 (Adjustment of the Margin and Acceptance
Commission Rate), [ ] per cent. per annum and the applicable commitment fee
for the Total Tranche B Commitments is, in accordance with Clause 24.3
(Commitment fee), [ ] per cent. per annum.
By:
REXAM PLC
Authorised signatory
<PAGE>
SCHEDULE 9
FORM OF POWER OF ATTORNEY FOR BILLS
To: LLOYDS TSB BANK plc
[ ], 200[ ]
Dear Sirs,
POWER OF ATTORNEY
1. We refer to the facility agreement (the "AGREEMENT") dated , 2000 whereby a
US$1,600,000,000 and euro 2,000,000,000 credit facility was made available
to Rexam PLC by a group of banks on whose behalf you act as agent. Terms
defined in the Agreement shall have the same meaning herein.
2. The Agreement envisages that the relevant Borrower shall ensure upon
delivery of any Request for a Utilisation by means of Bills that the Agent
has a sufficient stock of blank signed Bills to enable it to proceed with
such Utilisation.
3. Notwithstanding the foregoing, we hereby appoint you our true and lawful
attorney for and in our name and on our behalf to do or execute all or any
of the acts and things set out below upon receipt of a Request from us:
(a) to draw a Bill or Bills on our behalf; and
(b) to sign each requested Bill as drawer on our behalf and, if
appropriate, to endorse on our behalf an appropriate number of Bills
for appropriate amounts (in accordance with the terms of the
Agreement) drawn upon you such endorsement to be at your sole
discretion a blank endorsement or a special endorsement (as such
expressions are defined in the Bills of Exchange Act 1882) to the
order of the party with whom you have arranged discounting of such
Bill or Bills,
PROVIDED ALWAYS that the aforesaid signature and endorsement shall be
executed in your name as our agent by the signature of two of your
authorised signatories.
4. We hereby ratify and confirm and agree to ratify and confirm everything you
shall do or purport to do by virtue of this Power of Attorney including
anything done between the time of revocation of this Power of Attorney and
the time of that revocation becoming known to you. We hereby agree to
notify you promptly of any such revocation.
5. We hereby authorise and empower you to acknowledge in our name and as our
act and deed this Power of Attorney and to do any and every other act and
thing whatsoever which may be requisite or proper for authenticating and
giving full effect to this Power of Attorney according to the laws of
England.
<PAGE>
6. This Power of Attorney shall be governed by and construed in accordance
with English law.
<TABLE>
<CAPTION>
<S> <C> <C>
Signed as a deed by )
[Name of Borrower] )
acting by its Director )
* .............................. ) ** ......................... Director
and its Director/Secretary ) **.......................... Director/Secretary
*.............................. )
</TABLE>
<PAGE>
SIGNATORIES
COMPANY
REXAM PLC
By: MICHAEL HARTNALL
ARRANGERS AND BANKS
ABN AMRO BANK N.V.
By: JOHN WYATT MARK VINCENT
BANQUE NATIONALE DE PARIS
By: SIMON ALLOCCA
BANQUE NATIONALE DE PARIS, LONDON BRANCH
By: SIMON ALLOCCA MICHAEL E MOLLOY
CITIBANK, N.A.
By: DAVID M WALKER
CREDIT SUISSE FIRST BOSTON
By: DAVID SLADE
CREDIT SUISSE FIRST BOSTON, LONDON BRANCH
By: DAVID SLADE
HSBC BANK plc
By: DOUGLAS G LACK
HSBC INVESTMENT BANK plc
By: M T NICKELL
<PAGE>
ARRANGERS AND BANKS (CONTINUED)
LLOYDS TSB BANK plc
By: JONATHAN FEAST
LLOYDS TSB CAPITAL MARKETS
By: SALLY INGLESON
WESTDEUTSCHE LANDESBANK GIROZENTRALE
By: STUART FROHMAIER
AGENT
LLOYDS TSB BANK plc
By: SURYAKANT PATEL
<PAGE>
EXHIBIT (d)(1)
- ------------------------------------------------------------------------------
AGREEMENT AND PLAN OF MERGER
Among
REXAM PLC,
REXAM ACQUISITION SUBSIDIARY INC.,
and
AMERICAN NATIONAL CAN GROUP, INC.
Dated as of March 31, 2000
- ------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE I THE OFFER AND THE MERGER
SECTION 1.01. The Offer.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
SECTION 1.02. Company Actions.. . . . . . . . . . . . . . . . . . . . . . . . . . .4
SECTION 1.03. The Merger. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
SECTION 1.04. Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
SECTION 1.05. Effective Time. . . . . . . . . . . . . . . . . . . . . . . . . . . .6
SECTION 1.06. Effects of the Merger.. . . . . . . . . . . . . . . . . . . . . . . .6
SECTION 1.07. Certificate of Incorporation and By-laws. . . . . . . . . . . . . . .6
SECTION 1.08. Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
SECTION 1.09. Officers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
ARTICLE II EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT
CORPORATIONS;EXCHANGE OF CERTIFICATES
SECTION 2.01. Effect on Capital Stock . . . . . . . . . . . . . . . . . . . . . . .7
SECTION 2.02. Exchange of Certificates. . . . . . . . . . . . . . . . . . . . . . .8
ARTICLE III REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties
of the Company . . . . . . . . . . . . . . . . . . . . . . . . . .10
SECTION 3.02. Representations and Warranties
of Rexam and Sub. . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE IV COVENANTS RELATING TO CONDUCT OF BUSINESS
SECTION 4.01. Conduct of Business . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 4.02. No Solicitation . . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE V ADDITIONAL AGREEMENTS
SECTION 5.01. Preparation of the Proxy Statement;
Company Stockholders Meeting; Rexam
Shareholders Meeting; Offering
Circular. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 5.02. Access to Information; Confidentiality. . . . . . . . . . . . . . . 43
SECTION 5.03. Commercially Reasonable Efforts;
Notification. . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 5.04. Company Stock Options and Other
Equity Based Awards . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 5.05. Indemnification, Exculpation and
Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 5.06. Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 5.07. Information Supplied. . . . . . . . . . . . . . . . . . . . . . . . 50
<PAGE>
SECTION 5.08. Benefits Matters. . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 5.09. Option to Purchase Identified Assets. . . . . . . . . . . . . . . . 53
SECTION 5.10. Public Announcements. . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 5.11. Stockholder Agreement Legend. . . . . . . . . . . . . . . . . . . . 53
SECTION 5.12. Directors.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE VI CONDITIONS PRECEDENT
SECTION 6.01. Conditions to Each Party's Obligation
to Effect the Merger. . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE VII TERMINATION, AMENDMENT AND WAIVER
SECTION 7.01. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 7.02. Effect of Termination . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 7.03. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 7.04. Extension; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . 58
ARTICLE VIII GENERAL PROVISIONS
SECTION 8.01. Nonsurvival of Representations
and Warranties. . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 8.02. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 8.03. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 8.04. Interpretation. . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 8.05. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 8.06. Entire Agreement; No Third-Party
Beneficiaries . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 8.07. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 8.08. Assignment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 8.09. Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 8.10. Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
</TABLE>
EXHIBIT A - Conditions of the Offer
<PAGE>
AGREEMENT AND PLAN OF MERGER dated as of March 31, 2000
(this "AGREEMENT"), by and among REXAM PLC, an English public
limited company ("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").
WHEREAS the respective Boards of Directors of Rexam, Sub and the
Company have approved the acquisition of the Company by Rexam on the terms
and subject to the conditions set forth in this Agreement;
WHEREAS, in furtherance of such acquisition, Rexam proposes to
cause Sub to make a tender offer (as it may be amended from time to time as
permitted under this Agreement, the "OFFER") to purchase all the outstanding
shares of common stock, par value $0.01 per share, of the Company (the
"COMPANY COMMON STOCK"), at a price per share of Company Common Stock of
$18.00, net to the seller in cash, without interest on the terms and subject
to the conditions set forth in this Agreement;
WHEREAS the respective Boards of Directors of Rexam, Sub and the
Company have approved the merger (the "MERGER") of Sub into the Company, on
the terms and subject to the conditions set forth in this Agreement, whereby
each issued share of Company Common Stock not owned by Rexam, Sub or the
Company, other than the Appraisal Shares (as defined in Section 2.01(d),
shall be converted into the right to receive the price per share paid
pursuant to the Offer;
WHEREAS simultaneously with the execution and delivery of this
Agreement, Rexam and the principal stockholder of the Company (the "SPECIFIED
STOCKHOLDER") are entering into a stockholders agreement (the "STOCKHOLDERS
AGREEMENT") pursuant to which the Specified Stockholder is agreeing to take
certain actions in furtherance of the Offer and the Merger;
WHEREAS Rexam, Sub and the Company desire to make certain
representations, warranties, covenants and
<PAGE>
agreements in connection with the Offer and the Merger and also to prescribe
various conditions to the Offer and the Merger;
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements set forth herein, the
parties hereto agree as follows:
ARTICLE I
THE OFFER AND THE MERGER
SECTION 1.01. THE OFFER. (a) Subject to the conditions of this
Agreement, as promptly as practicable, but in no event later than five
business days after the date of the public announcement of this Agreement,
Sub shall, and Rexam shall cause Sub to, commence the Offer within the
meaning of the applicable rules and regulations of the Securities and
Exchange Commission (the "SEC"). The obligations of Sub to, and of Rexam to
cause Sub to, accept for payment, and pay for, any shares of Company Common
Stock tendered pursuant to the Offer are subject to the conditions set forth
in Exhibit A. The initial expiration date of the Offer shall be the 20th
business day following the commencement of the Offer. Sub expressly reserves
the right to waive any condition to the Offer or modify the terms of the
Offer, except that, without the consent of the Company, Sub shall not (i)
reduce the number of shares of Company Common Stock subject to the Offer,
(ii) reduce the price per share of Company Common Stock to be paid pursuant
to the Offer, (iii) waive the Minimum Tender Condition (as defined in Exhibit
A), add to the conditions set forth in Exhibit A or modify any condition set
forth in Exhibit A in any manner adverse to the holders of Company Common
Stock, (iv) except as provided below in this Section 1.01(a), extend the
Offer, (v) change the form of consideration payable in the Offer or (vi)
otherwise amend the Offer in any manner adverse to the holders of Company
Common Stock. Notwithstanding the foregoing, Sub may, without the consent of
the Company, (A) extend the Offer, for one or more periods of time that Sub
reasonably believes are necessary to cause the conditions of the Offer set
forth hereto to be satisfied, if at the scheduled expiration date of the
Offer any of the conditions to Sub's obligation to purchase shares of Company
Common Stock are not satisfied, until such time as such conditions are
satisfied or waived or (B) extend the Offer
<PAGE>
for any period required by any rule, regulation, interpretation or position
of the SEC or the staff thereof applicable to the Offer. Rexam and Sub agree
that if all of the conditions to the Offer are not satisfied on any scheduled
expiration date of the Offer then Sub shall extend the Offer for one or more
periods of time that Sub reasonably believes are necessary to cause the
conditions of the Offer set forth hereto to be satisfied from time to time
until such conditions are satisfied or waived, provided that Sub shall not be
required to extend the Offer beyond October 25, 2000. Sub may, without the
consent of the Company, elect to provide a subsequent offering period for the
Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934,
as amended (the "EXCHANGE ACT") following its acceptance for payment of
shares of Company Common Stock in the Offer. On the terms and subject to the
conditions of the Offer and this Agreement, Sub shall, and Rexam shall cause
Sub to, pay for all shares of Company Common Stock validly tendered and not
withdrawn pursuant to the Offer that Sub becomes obligated to purchase
pursuant to the Offer as soon as practicable after the expiration of the
Offer.
(b) On the date of commencement of the Offer, Rexam and Sub shall
file with the SEC a Tender Offer Statement on Schedule TO with respect to the
Offer, which shall contain an offer to purchase and a related letter of
transmittal and summary advertisement (such Schedule TO and the documents
included therein pursuant to which the Offer will be made, together with any
supplements or amendments thereto, the "OFFER DOCUMENTS"). Rexam and Sub
agree that the Offer Documents shall comply as to form in all material
respects with the Exchange Act, and the rules and regulations promulgated
thereunder and the Offer Documents, on the date first published, sent or
given to the Company's stockholders, shall not contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that no
representation or warranty is made by Rexam or Sub with respect to
information supplied by the Company or any of its stockholders specifically
for inclusion or incorporation by reference in the Offer Documents. Each of
Rexam, Sub and the Company shall promptly correct any information provided by
it for use in the Offer Documents if and to the extent
<PAGE>
that such information shall have become false or misleading in any material
respect, and each of Rexam and Sub shall take all steps necessary to amend or
supplement the Offer Documents and to cause the Offer Documents as so amended
or supplemented to be filed with the SEC and the Offer Documents as so
amended or supplemented to be disseminated to the Company's stockholders, in
each case as and to the extent required by applicable Federal securities
laws. The Company and its counsel shall be given reasonable opportunity to
review and comment upon the Offer Documents prior to their filing with the
SEC or dissemination to the stockholders of the Company. Rexam and Sub shall
provide the Company and its counsel in writing with any written comments (and
orally, any oral comments), Rexam, Sub or their counsel may receive from the
SEC or its staff with respect to the Offer Documents promptly after the
receipt of such comments and shall consult with the Company and its counsel
prior to responding to any such comments.
(c) Rexam shall provide or cause to be provided to Sub on a timely
basis the funds necessary to purchase any shares of Company Common Stock that
Sub becomes obligated to purchase pursuant to the Offer.
SECTION 1.02. COMPANY ACTIONS. (a) The Company hereby approves
of and consents to the Offer, the Merger and the other transactions
contemplated by this Agreement.
(b) On the date the Offer Documents are filed with the SEC, the
Company shall file with the SEC a Solicitation/Recommendation Statement on
Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, as amended or
supplemented from time to time, the "SCHEDULE 14D-9") describing the
recommendations referred to in Section 3.01(d) and shall mail the Schedule
14D-9 to the holders of Company Common Stock. The Schedule 14D-9 shall
comply as to form in all material respects with the requirements of the
Exchange Act and the rules and regulations promulgated thereunder and, on the
date filed with the SEC and on the date first published, sent or given to the
Company's stockholders, shall not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that no
representation or warranty is made by the Company with
<PAGE>
respect to information supplied by Rexam or Sub specifically for inclusion in
the Schedule 14D-9. Each of the Company, Rexam and Sub shall promptly
correct any information provided by it for use in the Schedule 14D-9 if and
to the extent that such information shall have become false or misleading in
any material respect, and the Company shall take all steps necessary to amend
or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so
amended or supplemented to be filed with the SEC and disseminated to the
Company's stockholders, in each case as and to the extent required by
applicable Federal securities laws. Rexam and its counsel shall be given
reasonable opportunity to review and comment upon the Schedule 14D-9 prior to
its filing with the SEC or dissemination to stockholders of the Company. The
Company shall provide Rexam and its counsel in writing with any written
comments (and orally, any oral comments) the Company or its counsel may
receive from the SEC or its staff with respect to the Schedule 14D-9 promptly
after the receipt of such comments and shall consult with Rexam and its
counsel prior to responding to such comments.
(c) In connection with the Offer and the Merger, the Company shall
cause its transfer agent to furnish Sub promptly with mailing labels
containing the names and addresses of the record holders of Company Common
Stock as of a recent date and of those persons becoming record holders
subsequent to such date, together with copies of all lists of stockholders,
security position listings and computer files and all other information in
the Company's possession or control regarding the beneficial owners of
Company Common Stock, and shall furnish to Sub such information and
assistance (including updated lists of stockholders, security position
listings and computer files) as Rexam may reasonably request in communicating
the Offer to the Company's stockholders. Subject to the requirements of
applicable law, and except for such steps as are necessary to disseminate the
Offer Documents and any other documents necessary to consummate the Offer,
the Merger and the other transactions contemplated by this Agreement and the
Stockholders Agreement, Rexam and Sub shall hold in confidence the
information contained in any such labels, listings and files, shall use such
information only in connection with the Offer and the Merger and, if this
Agreement shall be terminated, shall, upon request, deliver to the Company
all copies of such information then in their possession.
SECTION 1.03. THE MERGER. Upon the terms and subject to the
conditions set forth in this Agreement, and
<PAGE>
in accordance with the Delaware General Corporation Law (the "DGCL"), Sub
shall be merged with and into the Company at the Effective Time (as defined
in Section 1.05). At the Effective Time, the separate corporate existence of
Sub shall cease and the Company shall continue as the surviving corporation
(the "SURVIVING CORPORATION") and shall succeed to and assume all the rights
and obligations of Sub in accordance with the DGCL.
SECTION 1.04. CLOSING. Upon the terms and subject to the
conditions set forth in this Agreement, the closing of the Merger (the
"CLOSING") shall take place at 11:00 a.m., New York time, on the second
business day after the satisfaction or (to the extent permitted by applicable
law) waiver of the conditions set forth in Article VI (other than those that
by their terms cannot be satisfied until the time of the Closing but subject
to the fulfillment or waiver of such conditions), at the offices of Cravath,
Swaine & Moore, 825 Eighth Avenue, New York, New York 10019, or at such other
time, date or place agreed to in writing by Rexam and the Company; PROVIDED
that if all the conditions set forth in Article VI shall not have been
satisfied or (to the extent permitted by applicable law) waived on such
second business day, then the Closing shall take place on the first business
day on which all such conditions shall have been satisfied or (to the extent
permitted by applicable law) waived. The date on which the Closing occurs is
referred to in this Agreement as the "CLOSING DATE".
SECTION 1.05. EFFECTIVE TIME. Upon the terms and subject to the
conditions set forth in this Agreement, as soon as practicable on or after
the Closing Date, a certificate of merger or other appropriate documents (in
any such case, the "CERTIFICATE OF MERGER") shall be duly prepared, executed
and acknowledged by the parties in accordance with the relevant provisions of
the DGCL and filed with the Secretary of State of the State of Delaware. The
Merger shall become effective upon the filing of the Certificate of Merger
with the Secretary of State of the State of Delaware or at such subsequent
time or date as Rexam and the Company shall agree and specify in the
Certificate of Merger. The time at which the Merger becomes effective is
referred to in this Agreement as the "EFFECTIVE TIME".
SECTION 1.06. EFFECTS OF THE MERGER. The Merger
<PAGE>
shall have the effects set forth in Section 259 of the DGCL.
SECTION 1.07. CERTIFICATE OF INCORPORATION AND BY-LAWS. (a) The
Certificate of Incorporation of the Company, as in effect immediately prior
to the Effective Time, shall be the Certificate of Incorporation of the
Surviving Corporation until thereafter changed or amended as provided therein
or by applicable law.
(b) The By-laws of the Company as in effect immediately prior to
the Effective Time shall be the By-laws of the Surviving Corporation until
thereafter changed or amended as provided therein or by applicable law.
SECTION 1.08. DIRECTORS. The directors of Sub immediately prior
to the Effective Time shall be the directors of the Surviving Corporation
until the earlier of their resignation or removal or until their respective
successors are duly elected and qualified, as the case may be.
SECTION 1.09. OFFICERS. The officers of the Company immediately
prior to the Effective Time shall be the officers of the Surviving
Corporation until the earlier of their resignation or removal or until their
respective successors are duly elected and qualified, as the case may be.
ARTICLE II
EFFECT OF THE MERGER ON THE CAPITAL STOCK
OF THE CONSTITUENT CORPORATIONS;
EXCHANGE OF CERTIFICATES
SECTION 2.01. EFFECT ON CAPITAL STOCK. At the Effective Time, by
virtue of the Merger and without any action on the part of the holder of any
shares of capital stock of the Company, Rexam or Sub:
(a) CAPITAL STOCK OF SUB. Each issued and outstanding share of
common stock of Sub shall be converted into and become one fully paid and
nonassessable share of common stock of the Surviving Corporation.
(b) CANCELATION OF TREASURY STOCK AND REXAM-OWNED STOCK. Each share
of Company Common Stock that is owned by the Company (as treasury stock),
Rexam or Sub immediately prior to the Effective Time shall
<PAGE>
automatically be canceled and retired and shall cease to exist and no
consideration shall be delivered in exchange therefor. Each share of
Company Common Stock that is owned by any subsidiary of Rexam (other
than Sub) or the Company shall remain outstanding without change.
(c) CONVERSION OF COMPANY COMMON STOCK. Each share of Company Common
Stock issued and outstanding immediately prior to the Effective Time (other
than shares to be canceled or remain outstanding in accordance with
Section 2.01(b) and the Appraisal Shares (as defined in Section 2.01(d))
shall be converted into the right to receive from the Surviving Corporation
in cash, without interest, the price per share paid in the Offer (the
"MERGER CONSIDERATION"). At the Effective Time all such shares shall no
longer be outstanding and shall automatically be canceled and shall cease
to exist, and each holder of a certificate that immediately prior to the
Effective Time represented any such shares (a "CERTIFICATE") shall cease to
have any rights with respect thereto, except the right to receive the
Merger Consideration.
(d) APPRAISAL RIGHTS. Notwithstanding anything in this Agreement to
the contrary, shares (the "APPRAISAL SHARES") of Company Common Stock
issued and outstanding immediately prior to the Effective Time that are
held by any holder who is entitled to demand and properly demands appraisal
of such shares pursuant to, and who complies in all respects with, the
provisions of Section 262 of the DGCL ("SECTION 262") shall not be
converted into the right to receive the Merger Consideration as provided in
Section 2.01(c), but instead such holder shall be entitled to payment of
the fair value of such shares in accordance with the provisions of
Section 262. At the Effective Time, all Appraisal Shares shall no longer
be outstanding and shall automatically be canceled and shall cease to
exist, and each holder of Appraisal Shares shall cease to have any rights
with respect thereto, except the right to receive the fair value of such
shares in accordance with the provisions of Section 262. Notwithstanding
the foregoing, if any such holder shall fail to perfect or otherwise shall
waive, withdraw or lose the right to appraisal under Section 262 or a
<PAGE>
court of competent jurisdiction shall determine that such holder is not
entitled to the relief provided by Section 262, then the right of such
holder to be paid the fair value of such holder's Appraisal Shares under
Section 262 shall cease and such Appraisal Shares shall be deemed to have
been converted at the Effective Time into, and shall have become, the right
to receive the Merger Consideration as provided in Section 2.01(c). The
Company shall serve prompt notice to Rexam of any demands for appraisal of
any shares of Company Common Stock, and Rexam shall have the right to
participate in and direct all negotiations and proceedings with respect to
such demands. Prior to the Effective Time, the Company shall not, without
the prior written consent of Rexam, make any payment with respect to, or
settle or offer to settle, any such demands, or agree to do any of the
foregoing.
SECTION 2.02. EXCHANGE OF CERTIFICATES. (a) PAYING AGENT. Prior
to the Effective Time Rexam shall designate, or shall cause to be designated,
a bank or trust company reasonably acceptable to the Company to act as agent
for the payment of the Merger Consideration upon surrender of Certificates
(the "PAYING AGENT"), and, from time to time after the Effective Time, Rexam
shall provide, or cause the Surviving Corporation to provide, to the Paying
Agent funds in amounts and at the times necessary for the payment of the
Merger Consideration pursuant to Section 2.01(c) upon surrender of
Certificates, it being understood that any and all interest or income earned
on funds made available to the Paying Agent pursuant to this Agreement shall
be turned over to Rexam.
(b) EXCHANGE PROCEDURE. As soon as reasonably practicable after
the Effective Time, the Paying Agent shall mail to each holder of record of a
Certificate (i) a form of letter of transmittal (which shall specify that
delivery shall be effected, and risk of loss and title to the Certificates
held by such person shall pass, only upon proper delivery of the Certificates
to the Paying Agent and shall be in customary form and have such other
provisions as Rexam may reasonably specify) and (ii) instructions for use in
effecting the surrender of the Certificates in exchange for the Merger
Consideration. Upon surrender of a Certificate for cancelation to the Paying
Agent or to such other agent or agents as may be appointed by Rexam, together
with such letter of transmittal, duly completed and validly executed, and
such other documents as may reasonably be required by the Paying Agent, the
holder of such Certificate
<PAGE>
shall be entitled to receive in exchange therefor the amount of cash into
which the shares formerly represented by such Certificate shall have been
converted pursuant to Section 2.01(c) into the right to receive, and the
Certificate so surrendered shall forthwith be canceled. In the event of a
transfer of ownership of Company Common Stock that is not registered in the
stock transfer books of the Company, the proper amount of cash may be paid in
exchange therefor to a person other than the person in whose name the
Certificate so surrendered is registered if such Certificate shall be
properly endorsed or otherwise be in proper form for transfer and the person
requesting such payment shall pay any transfer or other taxes required by
reason of the payment to a person other than the registered holder of such
Certificate or establish to the satisfaction of Rexam that such tax has been
paid or is not applicable. No interest shall be paid or shall accrue on the
cash payable upon surrender of any Certificate.
(c) NO FURTHER OWNERSHIP RIGHTS IN COMPANY COMMON STOCK. All cash
paid upon the surrender of a Certificate in accordance with the terms of this
Article II shall be deemed to have been paid in full satisfaction of all
rights pertaining to the shares of Company Common Stock formerly represented
by such Certificate. At the close of business on the day on which the
Effective Time occurs the stock transfer books of the Company shall be
closed, and there shall be no further registration of transfers on the stock
transfer books of the Surviving Corporation of the shares of Company Common
Stock that were outstanding immediately prior to the Effective Time. If,
after the Effective Time, Certificates are presented to the Surviving
Corporation or the Paying Agent for transfer or any other reason, they shall
be canceled and exchanged as provided in this Article II.
(d) NO LIABILITY. None of Rexam, Sub, the Company or the Paying
Agent shall be liable to any person in respect of any cash delivered to a
public official pursuant to any applicable abandoned property, escheat or
similar law. If any certificates shall not have been surrendered prior to two
years after the Effective Time (or immediately prior to such earlier date on
which any Merger Consideration would otherwise escheat to or became the
property of any Governmental Entity (as defined in Section 3.01(d)), any such
Merger Consideration in respect thereof shall, to the
<PAGE>
extent permitted by applicable law, become the property of the Surviving
Corporation, free and clear of all claims or interest of any person
previously entitled thereto.
(e) LOST CERTIFICATES. If any Certificate shall have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the
person claiming such Certificate to be lost, stolen or destroyed and, if
required by the Surviving Corporation, the posting by such person of a bond
in such reasonable amount as the Surviving Corporation may direct as
indemnity against any claim that may be made against it with respect to such
Certificate, the Paying Agent shall pay in respect of such lost, stolen or
destroyed Certificate the Merger Consideration.
(f) WITHHOLDING RIGHTS. Rexam, the Surviving Corporation or the
Paying Agent shall be entitled to deduct and withhold from the consideration
otherwise payable pursuant to this Agreement to any holder of shares of
Company Common Stock such amounts as Rexam, the Surviving Corporation or the
Paying Agent is required to deduct and withhold with respect to the making of
such payment under the Internal Revenue Code of 1986, as amended (the
"CODE"), or any provision of state, local or foreign tax law. To the extent
that amounts are so withheld and paid over to the appropriate taxing
authority by Rexam, the Surviving Corporation or the Paying Agent, such
withheld amounts shall be treated for all purposes of this Agreement as
having been paid to the holder of the shares of Company Common Stock in
respect of which such deduction and withholding was made by Rexam, the
Surviving Corporation or the Paying Agent.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Except as set forth on the disclosure schedule (with specific reference to
the Section or Subsection of this Agreement to which the information stated
in such disclosure relates and such other Sections or Subsections of this
Agreement to the extent a matter is disclosed in such a way as to make its
relevance to the information called for by such other Section or Subsection
readily apparent) delivered by the Company to Rexam prior to the execution of
this Agreement (the "COMPANY DISCLOSURE SCHEDULE"), the Company represents
and warrants to Rexam and Sub as follows:
<PAGE>
(a) ORGANIZATION, STANDING AND POWER. Each of the Company and its
Significant Subsidiaries (as defined in Section 8.03) (i) is duly organized,
validly existing and in good standing under the laws of the jurisdiction of
its organization, (ii) has all requisite corporate, company or partnership
power and authority to carry on its business as now being conducted and (iii)
is duly qualified or licensed to do business and is in good standing in each
jurisdiction in which the nature of its business or the ownership, leasing or
operation of its properties makes such qualification or licensing necessary,
other than (except in the case of clause (i) above with respect to the
Company) where the failure to be so organized, existing, qualified or
licensed or in good standing, individually and in the aggregate, would not
reasonably be expected to have a material adverse effect (as defined in
Section 8.03). The Company has made available to Rexam true and complete
copies of its Certificate of Incorporation and By-laws, in each case, as
amended to the date of this Agreement.
(b) SIGNIFICANT SUBSIDIARIES. Section 3.01(b) of the Company
Disclosure Schedule lists each Significant Subsidiary of the Company. All
the outstanding shares of capital stock or other equity or voting interests
of each Significant Subsidiary of the Company are owned by the Company, by
another wholly owned subsidiary of the Company or by the Company and another
wholly owned subsidiary of the Company, free and clear of all pledges,
claims, liens, charges, encumbrances and security interests of any kind or
nature whatsoever (collectively, "LIENS"), and are duly authorized, validly
issued, fully paid and nonassessable. Except for the capital stock of, or
other equity or voting interests in, its Significant Subsidiaries or its
wholly owned subsidiaries, the Company does not own, directly or indirectly,
any capital stock of, or other equity or voting interests in, any
corporation, partnership, joint venture, association or other entity.
(c) CAPITAL STRUCTURE. The authorized capital stock of the
Company consists of 1,000,000,000 shares of Company Common Stock and
25,000,000 shares of preferred stock, par value $0.01 per share (the "COMPANY
PREFERRED STOCK"). As of the close of business on March 29, 2000, (i)
55,000,000 shares of Company Common Stock (excluding treasury shares) were
issued and outstanding, (ii) no shares of Company Common Stock were held by
the Company in its
<PAGE>
treasury, (iii) 8,450,000 shares of Company Common Stock were reserved for
issuance pursuant to the Company's Founders' Equity Plan, Long-Term Stock
Incentive Plan, Directors' Stock Plan, Directors' Pension Conversion Plan and
Stock Compensation Conversion Plan (such plans, collectively, the "COMPANY
STOCK PLANS") (of which 3,543,216 shares were subject to outstanding stock
options to purchase Company Common Stock granted under the Company Stock
Plans (collectively, the "Company Stock Options")) and (iv) no shares of
Company Preferred Stock were issued and outstanding or were held by the
Company in its treasury. There are outstanding 7,944 deferred stock units
under the Directors' Stock Plan, 42,021 shares under the Directors' Pension
Conversion Plan, 396,456 conversion shares under the Stock Compensation Plan
and 65,873 performance and restricted shares under the 1999 Long-Term
Incentive Plan and otherwise there are no outstanding stock appreciation
rights or other similar rights. No shares of Company Common Stock are owned
by any subsidiary of the Company. The Company has delivered to Rexam a true,
correct and complete list, as of the close of business on March 29, 2000, of
all outstanding Company Stock Options (other than the 442,600 Company Stock
Options granted pursuant to the Company's Founders' Equity Plan to the
employees of the Company and its subsidiaries on July 28, 1999, with a per
share exercise price of $17.00) and all other rights to purchase or receive
Company Common Stock granted under the Company Stock Plans, the number of
shares subject to each such Company Stock Option, the grant dates and
exercise prices of each such Stock Option and the names of the holder
thereof. Except as set forth above, as of the close of business on March 29,
2000, no shares of capital stock of, or other equity or voting interests in,
the Company, or options, warrants or other rights to acquire any such stock
or securities were issued, reserved for issuance or outstanding. During the
period from March 29, 2000 to the date of this Agreement, (A) there have been
no issuances by the Company of shares of capital stock of, or other equity or
voting interests in, the Company other than issuances of shares of Company
Common Stock pursuant to the exercise of Company Stock Options outstanding on
such date as required by their terms as in effect on the date of this
Agreement and (B) there have been no issuances by the Company of options,
warrants or other rights to acquire shares of capital stock or other equity
or voting interests from the Company. All outstanding shares of capital
stock of the Company are, and all shares that may be issued pursuant to the
Company Stock Plans will be when issued in accordance with the terms thereof,
duly authorized, validly issued, fully paid and nonassessable and
<PAGE>
not subject to preemptive rights. There are no bonds, debentures, notes or
other indebtedness of the Company or any of its subsidiaries, and no
securities or other instruments or obligations of the Company or any of its
subsidiaries the value of which is in any way based upon or derived from any
capital or voting stock of the Company, having the right to vote (or
convertible into, or exchangeable for, securities having the right to vote)
on any matters on which stockholders of the Company may vote. Except as set
forth above and except as specifically permitted under Section 4.01(a), there
are no Contracts (as defined in Section 3.01(d)) of any kind to which the
Company or any of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound, obligating the Company or any of its
subsidiaries to issue, deliver or sell, or cause to be issued, delivered or
sold, additional shares of capital stock of, or other equity or voting
interests in, or securities convertible into, or exchangeable or exercisable
for, shares of capital stock of, or other equity or voting interests in, the
Company or any of its subsidiaries or obligating the Company or any of its
subsidiaries to issue, grant, extend or enter into any such security, option,
warrant, call, right or Contract. There are no outstanding contractual
obligations of the Company or any of its subsidiaries to (x) repurchase,
redeem or otherwise acquire any shares of capital stock of, or other equity
or voting interests in, the Company or any of its subsidiaries or (y) vote or
dispose of any shares of the capital stock of, or other equity or voting
interests in, any of its subsidiaries. To the knowledge of the Company as of
the date of this Agreement, there are no irrevocable proxies and no voting
agreements with respect to any shares of the capital stock or other voting
securities of the Company or any of its subsidiaries, other than pursuant to
the Stockholders Agreement.
(d) AUTHORITY; NONCONTRAVENTION. The Company has the requisite
corporate power and authority to execute and deliver this Agreement and,
subject only to, if required by law, approval of the Merger by an affirmative
vote of the holders of a majority of the outstanding shares of the Company
Common Stock (the "COMPANY STOCKHOLDER APPROVAL") to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby have been duly authorized by all
<PAGE>
necessary corporate action on the part of the Company, subject, in the case
of this Agreement, only to the Company Stockholder Approval if such approval
is required by law and no other corporate proceedings on the part of the
Company are necessary to approve this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Company and constitutes a valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms,
subject to laws concerning bankruptcy and creditors' rights. The Board of
Directors of the Company, at a meeting duly called and held, duly and
unanimously by all those present, adopted resolutions that are still in full
force and effect as of the date hereof, (i) approving and declaring advisable
the Offer, the Merger, this Agreement and the transactions contemplated
hereby and thereby, (ii) declaring that it is in the best interests of the
Company's stockholders that the Company enter into this Agreement and
consummate the Offer and the Merger on the terms and subject to the
conditions set forth in this Agreement, (iii) recommending that the Company's
stockholders accept the Offer, tender their shares pursuant to the Offer and
adopt this Agreement (if required by applicable law), (iv) approving the
acquisition of the shares of the Company Common Stock by Sub pursuant to the
Offer and the other transactions contemplated by this Agreement and (v)
approving the Stockholders Agreement for purposes of Section 203 of the DGCL.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby and compliance with the provisions hereof 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
Company or any of its subsidiaries under, or give rise to any increased,
additional, accelerated or guaranteed rights or entitlements under, any
provision of (1) the Certificate of Incorporation or By-laws of the Company
or the certificate of incorporation or by-laws (or similar organizational
documents) of any of its subsidiaries, (2) any loan or credit agreement,
bond, debenture, note, mortgage, indenture, guarantee, lease or other
contract, commitment, agreement, instrument, arrangement, understanding,
obligation, undertaking, permit, concession, franchise or license, whether
oral or written (each, including all amendments thereto, a "CONTRACT"), to
which the Company or any of its subsidiaries is a party or any of their
<PAGE>
respective properties or assets is subject or (3) 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 Company or any of its subsidiaries or their
respective properties or assets, other than, in the case of clauses (2) and
(3), any such conflicts, violations, breaches, defaults, rights, losses,
Liens or entitlements that, individually and in the aggregate, would not
reasonably be expected to have a material adverse effect or to prevent or
materially impede or delay the consummation of the Offer, the Merger or the
other transactions contemplated by this Agreement. No consent, approval,
order or authorization of, or registration, declaration or filing with, any
domestic or foreign (whether national, federal, state, provincial, local or
otherwise) government or any court, administrative agency or commission or
other governmental or regulatory authority or agency, domestic, foreign or
supranational (a "GOVERNMENTAL ENTITY"), is required by the Company or any of
its subsidiaries in connection with the execution and delivery of this
Agreement by the Company or the consummation by the Company of the
transactions contemplated hereby or compliance with the provisions hereof,
except for (1) the filing of a premerger notification and report form by the
Company under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended (the "HSR ACT") or the anti-competition laws or regulations of the
European Union or any foreign jurisdiction in which the Company or Rexam
(directly or through subsidiaries, in each case) has material assets or
conducts material operations, or any other applicable competition, merger
control, antitrust or similar laws or regulations, (2) the filing with the
SEC of (A) the Schedule 14D-9, (B) a proxy statement or information statement
relating to the Company Stockholder Approval if such approval is required by
law (as amended or supplemented from time to time, the "PROXY STATEMENT") and
(C) such reports under the Exchange Act, as may be required in connection
with this Agreement, the Stockholders Agreement, the Offer, the Merger and
the other transactions contemplated hereby or thereby, (3) the filing of the
Certificate of Merger with the Secretary of State of the State of Delaware
and appropriate documents with the relevant authorities of other states in
which the Company or any of its subsidiaries is qualified to do business, (4)
any filings required under the rules and regulations of the
<PAGE>
New York Stock Exchange ("NYSE") and (5) such other consents, approvals,
orders, authorizations, registrations, declarations and filings (including
those required under Environmental Laws (as defined in Section 3.01(l)(vi)))
the failure of which to be obtained or made, individually and in the
aggregate, would not reasonably be expected to have a material adverse effect
or to prevent or materially impede or delay the consummation of the Offer,
the Merger or the other transactions contemplated by this Agreement.
(e) SEC DOCUMENTS. The Company has filed with the SEC all forms,
reports, schedules, statements and other documents required to be filed with
the SEC by the Company since August 2, 1999 (together with and giving effect
to, any amendments, supplements and exhibits thereto and any information
incorporated therein by reference, the "SEC DOCUMENTS"). No subsidiary of
the Company is required to file any form, report, schedule, statement or
other document with the SEC. As of their respective dates, the SEC Documents
complied in all material respects with the requirements of the Securities Act
of 1933, as amended (the "SECURITIES ACT"), or the Exchange Act, as the case
may be, and the rules and regulations of the SEC promulgated thereunder
applicable to such SEC Documents as of the date of the filing. Except to the
extent that information contained in any SEC Document has been revised or
superseded by a later filed SEC Document, none of the SEC Documents contains
any untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The financial statements (including the related notes) included
in the SEC Documents comply as to form in all material respects with
applicable accounting requirements and the published rules and regulations of
the SEC with respect thereto, have been prepared in accordance with generally
accepted accounting principles in the United States ("GAAP") (except, in the
case of unaudited statements, as permitted by Form 10-Q of the SEC) applied
on a consistent basis during the periods involved (except as may be indicated
therein or in the notes thereto) and fairly present in all material respects
the consolidated financial position of the Company and its consolidated
subsidiaries as of the dates thereof and their consolidated results of
operations and cash flows for the periods then ended (subject, in the case of
unaudited statements, to normal and
<PAGE>
recurring year-end audit adjustments). Except as set forth in any SEC
Documents filed prior to the date hereof (the "FILED SEC DOCUMENTS"), the
Company and its subsidiaries have no liabilities or obligations (net of the
benefits or assets obtained by the Company in connection with the incurrence
of such liabilities or obligations) of any nature (whether accrued, absolute,
contingent or otherwise), other than liabilities for taxes and other than
liabilities and obligations that, individually and in the aggregate, would
not reasonably be expected to have a material adverse effect.
(f) ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as disclosed on
the Filed SEC Documents, since December 31, 1999, the Company and its
subsidiaries have conducted their respective businesses only in the ordinary
course consistent with past practice, and there has not been (i) any state of
facts, change, development, effect, event, condition or occurrence that,
individually or in the aggregate, constitutes, has had, or would reasonably
be expected to have, a material adverse effect, (ii) prior to the date of
this Agreement, any declaration, setting aside or payment of any dividend on,
or other distribution (whether in cash, stock or property) in respect of, any
of the Company's or any of its subsidiaries' capital stock, except for
dividends by a wholly owned subsidiary of the Company to its parent, (iii)
prior to the date of this Agreement, any purchase, redemption or other
acquisition of any shares of capital stock or any other securities of the
Company or any of its subsidiaries or any options, warrants, calls or rights
to acquire such shares or other securities, (iv) prior to the date of this
Agreement, any split, combination or reclassification of any of the Company's
or any of its subsidiaries' capital stock or any issuance or the
authorization of any issuance of any other securities in respect of, in lieu
of or in substitution for shares of capital stock or other securities of the
Company or any of its subsidiaries, (v) prior to the date of this Agreement,
(x) any granting by the Company or any of its Significant Subsidiaries to any
current or former director or executive officer of any increase, or to any
current or former officer of any material increase, in compensation or other
benefits, except in each case for increases of cash compensation in the
ordinary course of business consistent with past practice or required under
any agreement or benefit plan in effect as of December 31, 1999, (y) any
granting by the Company or any of its Significant Subsidiaries to any current
or former director or officer of any right to receive any material severance
or termination pay or any
<PAGE>
material increase therein, or (z) any entry by the Company or any of its
subsidiaries into, or any material amendment of, any Company Benefit
Agreement (as defined in Section 3.01(j)) with any current or former director
or officer of the Company or any of its Significant Subsidiaries or any U.S.
Company Benefit Plan (as defined in Section 3.01(m)), (vi) any change in
financial or tax accounting methods, principles or practices by the Company
or any of its subsidiaries, except insofar as may have been required by a
change in GAAP or applicable law, (vii) prior to the date of this Agreement,
any material election with respect to taxes by the Company or any of its
subsidiaries or (viii) any settlement or compromise of any material tax
liability or refund.
(g) LITIGATION. Except as disclosed in the Filed SEC Documents,
there is no suit, claim, action, investigation or proceeding pending or, to
the knowledge of the Company, threatened against or affecting the Company or
any of its subsidiaries or any of their respective assets that, individually
or in the aggregate, could reasonably be expected to have a material adverse
effect, nor is there any statute, law, ordinance, rule, regulation, judgment,
order, injunction or decree, of any Governmental Entity or arbitrator
outstanding against, or, to the knowledge of the Company, investigation,
proceeding, notice of violation, order of forfeiture or complaint by any
Governmental Entity involving, the Company or any of its subsidiaries that,
individually or in the aggregate, could reasonably be expected to have a
material adverse effect.
(h) CONTRACTS. Except for Contracts filed as exhibits to the
Filed SEC Documents, Section 3.01(h) of the Company Disclosure Schedule sets
forth a true and complete list of:
(i) all Contracts to which the Company or any of its subsidiaries is a
party, or that purports to be binding upon the Company, any of its
subsidiaries or any of its affiliates, that contain a covenant materially
restricting the ability of the Company or any of its subsidiaries (or
which, following the consummation of the Offer or the Merger, would
reasonably be expected to materially restrict the ability of Rexam or any
of its subsidiaries, including the Company and its subsidiaries) to compete
with any
<PAGE>
person or engage in any business or activity in any geographic area or
pursuant to which any benefit is required to be given or lost as a result
of so competing or engaging;
(ii) all Contracts pursuant to which the Company or any of its
Significant Subsidiaries is restricted in any material respect in the
development, marketing or distribution of their respective products or
services;
(iii) all loan agreements, credit agreements, notes, debentures,
bonds, mortgages and indentures, in each case, pursuant to which any
indebtedness of the Company or any of its subsidiaries is outstanding or
may be incurred and all guarantees of or by the Company or any of its
subsidiaries of any indebtedness of any other person, including the
respective aggregate principal amounts outstanding as of the most recent
practicable date prior to the date of this Agreement;
(iv) all Contracts or other agreements pursuant to which the Company
or any of its subsidiaries (i) engages in any foreign currency, metals or
other futures or options trading or (ii) is a party to any price swaps,
hedges, futures or similar instrument; and
(v) all Contracts or other agreements between the Company or any of
its subsidiaries on the one hand and Pechiney, a French corporation or any
of its subsidiaries on the other hand.
Except as disclosed in the Filed SEC Documents, none of the Company or any of
its subsidiaries is in violation of or default (with or without notice or
lapse of time or both) under, or has waived or failed to enforce any rights
or benefits under, any material Contract to which it is a party or by which
it or any of its properties or assets is bound, and, to the knowledge of the
Company or such subsidiary, no other party to any of its material Contracts
is in violation or default (with or without notice or lapse of time or both)
under, or has waived or failed to enforce any rights or benefits under, and
there has occurred no event giving to others any right of termination,
amendment or cancelation of, with or without notice or lapse of time or both,
any such Contract except, in each case, for violations, defaults, waivers or
failures to enforce benefits that, individually and in the aggregate, would
not reasonably be expected to have a material adverse effect.
(i) COMPLIANCE WITH LAWS. Except as disclosed in
<PAGE>
the Filed SEC Documents and with respect to Environmental Laws and taxes (as
defined in Section 3.01(n)(x)), which are the subject of Sections 3.01(l) and
3.01(n), respectively, the Company and its subsidiaries and their relevant
personnel and operations are in compliance in all material respects with all
statutes, laws, ordinances, rules, regulations, judgments, orders and decrees
of any Governmental Entity applicable to their businesses or operations,
except for violations or possible violations that, individually or in the
aggregate, would not reasonably be expected to have a material adverse
effect. None of the Company or any of its subsidiaries has received, since
August 2, 1999, a notice or other written communication alleging or relating
to a possible violation of any statute, law, ordinance, rule, regulation,
judgment, order or decree of any Governmental Entity applicable to its
businesses or operations, except for violations or possible violations that,
individually or in the aggregate, would not reasonably be expected to have a
material adverse effect. The Company and its subsidiaries have in effect all
material permits, licenses, variances, exemptions, authorizations,
franchises, orders, registrations and approvals of all Governmental Entities
(collectively, "PERMITS"), necessary or advisable for them to own, lease or
operate their properties and assets and to carry on their businesses as now
conducted, and there has occurred no violation of, default (with or without
notice or lapse of time or both) under, or event giving to others any right
of termination, amendment or cancelation of, with or without notice or lapse
of time or both, any such Permit, except for such failings that, individually
or in the aggregate, would not reasonably be expected to have a material
adverse effect.
(j) ABSENCE OF CHANGES IN COMPANY BENEFIT PLANS; EMPLOYMENT
AGREEMENTS. Except as disclosed in the Filed SEC Documents or as would not
reasonably be expected to have a material adverse effect, since December 31,
1999, none of the Company or any of its subsidiaries has terminated, adopted,
amended or agreed to amend any material bonus, pension, profit sharing,
deferred compensation, incentive compensation, stock ownership, stock
purchase, stock appreciation, restricted stock, stock option, phantom stock,
performance, retirement, thrift, savings, stock bonus, cafeteria, paid
time-off, perquisite, fringe benefit, vacation, severance, disability, death
benefit, hospitalization, medical, welfare benefit or other plan,
<PAGE>
program, policy, arrangement or understanding maintained or contributed to or
required to be maintained or contributed to by the Company or any of the
subsidiaries for the benefit of any of the current or former directors,
officers, employees, agents, independent contractors or consultants of the
Company or any of its subsidiaries, excluding in each case, any such plan
that is a "multiemployer plan" as defined in Section 3(37) of and subject to
ERISA ("MULTIEMPLOYER PLAN") (collectively, "COMPANY BENEFIT PLANS") or any
change in any actuarial or other assumption used to calculate funding
obligations with respect to any Company Pension Plan (as defined in Section
3.01(m)) or any change in the manner in which contributions to any Company
Pension Plan are made or the basis on which such contributions are
determined. Except as disclosed in the Filed SEC Documents, there exist no
material employment, consulting, deferred compensation, severance,
termination or indemnification agreements or arrangements between the Company
or any of its subsidiaries, on the one hand, and any current or former
director, officer, employee or consultant of the Company or any of its
subsidiaries, on the other hand (collectively, "COMPANY BENEFIT AGREEMENTS").
(k) LABOR MATTERS. The Company and its subsidiaries have not been
engaged in any unfair labor practice and there are no unfair labor practice
complaints against the Company or any of its subsidiaries pending before any
Governmental Entity, except where such unfair labor practice or unfair labor
practice complaint, individually or in the aggregate, would not reasonably be
expected to have a material adverse effect. Except as disclosed in the Filed
SEC Documents, there is no labor dispute, strike, work stoppage or lockout,
or, to the knowledge of the Company, threat thereof, by or with respect to
any employee of the Company or any of its subsidiaries, except where such
dispute, strike, work stoppage or lockout individually or in the aggregate
would not reasonably be expected to have a material adverse effect.
(l) ENVIRONMENTAL MATTERS. Except as disclosed in the Filed SEC
Documents,
(i) each of the Company and its subsidiaries possesses all
Environmental Permits (as defined below) necessary to conduct its
businesses and operations as currently conducted;
(ii) each of the Company and its subsidiaries is in compliance with
all Environmental Laws (as defined
<PAGE>
below) and all Environmental Permits;
(iii) there are no Environmental Claims (as defined below) pending or,
to the knowledge of the Company, threatened (A) against the Company or any
of its subsidiaries or (B) against any person whose liability for any
Environmental Claim the Company or any of its subsidiaries has retained or
assumed, either contractually or by operation of law, and none of the
Company or its subsidiaries has contractually retained or assumed any
liabilities or obligations that could reasonably be expected to provide the
basis for any Environmental Claim;
(iv) none of the Company or any of its subsidiaries will be required
to make material expenditures to comply with current requirements of
Environmental Laws; and
(v) there have been no Releases (as defined below) of any Hazardous
Materials that would reasonably be expected to form the basis of any
Environmental Claim;
except for such violations of or inconsistencies with the foregoing clauses
(i) through (v) that, individually or in the aggregate, would not reasonably
be expected to have a material adverse effect.
(vi) DEFINITIONS. "ENVIRONMENTAL CLAIMS" means any and all
administrative, regulatory or judicial actions, orders, decrees, suits,
demands, demand letters, directives, claims, liens, investigations,
proceedings or notices of noncompliance or violation by any Governmental
Entity or other person alleging potential responsibility or liability
(including potential responsibility or liability for costs of enforcement,
investigation, cleanup, governmental response, removal or remediation, for
natural resources damages, property damage, personal injuries or penalties
or for contribution, indemnification, cost recovery, compensation or
injunctive relief) arising out of, based on or related to (A) the presence,
Release or threatened Release of, or exposure to, any Hazardous Materials
at any location or (B) circumstances forming the basis of any violation or
alleged violation of any Environmental Law or Environmental Permit.
<PAGE>
"ENVIRONMENTAL LAWS" means all applicable laws, rules, regulations,
orders, decrees, common law, judgments or binding agreements issued,
promulgated or entered into by or with any Governmental Entity relating to
pollution or protection of the environment (including ambient air, surface
water, groundwater, soils or subsurface strata) or protection of human health
as it relates to Hazardous Materials, including laws and regulations relating
to Releases or threatened Releases of Hazardous Materials or otherwise
relating to the generation, manufacture, processing, distribution, use,
treatment, storage, transport, handling of or exposure to Hazardous Materials.
"ENVIRONMENTAL PERMITS" means all permits, licenses, registrations
and other authorizations required under applicable Environmental Laws.
"HAZARDOUS MATERIALS" means all hazardous, toxic, explosive or
radioactive substances, wastes or other pollutants, including petroleum or
petroleum distillates, asbestos or asbestos-containing material,
polychlorinated biphenyls ("PCBS") or PCB-containing materials or equipment,
radon gas, infectious or medical wastes and all other substances or wastes of
any nature regulated pursuant to any Environmental Law.
"RELEASE" means, with respect to any Hazardous Material, any
release, spill, emission, leaking, dumping, injection, pouring, deposit,
disposal, discharge, dispersal, leaching or migration of such Hazardous
Materials into or through the environment (including ambient air, surface
water, groundwater, land surface or subsurface strata) or within any
building, structure, facility or fixture.
(m) ERISA COMPLIANCE. (i) Section 3.01(m)(i) of the Company
Disclosure Schedule contains a true and complete list of all material
"employee welfare benefit plans" (as defined in Section 3(1) of the Employee
Retirement Income Security Act of 1974, as amended "ERISA")), "employee
pension benefit plans" (as defined in Section 3(2) of ERISA) ("COMPANY
PENSION PLANS"), and all other Company Benefit Plans, in each case, for the
benefit of any current or former director, officer, employee, agent,
independent contractor or consultant of the Company or any of its
subsidiaries employed or providing services in the United States (all of the
foregoing being collectively referred to as the "U.S. COMPANY BENEFIT PLANS")
and each Multiemployer Plan. For purposes of this Agreement, the
<PAGE>
term "Company Foreign Plan" shall refer to each Company Benefit Plan that is
subject to or governed by the laws of any jurisdiction other than the United
States and that would have been treated as a U.S. Company Benefit Plan had it
covered individuals employed or providing services in the United States. The
Company shall use its reasonable best efforts to make available to Rexam
within 30 days following the date of this Agreement a list of the Company
Foreign Plans.
(ii) The Company has provided or made available to Rexam, or shall
use its reasonable best efforts to do so within 30 days following the date of
this Agreement, true, correct and complete copies of (1) each U.S. Company
Benefit Plan (or, in the case of any unwritten U.S. Company Benefit Plans,
descriptions thereof), (2) the most recent annual report on Form 5500 filed
with the Internal Revenue Service (the "IRS") with respect to each U.S.
Company Benefit Plan (if any such report was required), (3) the most recent
summary plan description or similar document for each U.S. Company Benefit
Plan for which such summary plan description is required or was otherwise
provided to plan participants or beneficiaries and (4) each trust agreement
and insurance annuity contract relating to any U.S. Company Benefit Plan.
(iii) Each U.S. Company Benefit Plan has been administered in all
material respects in accordance with its terms. Except as would not
reasonably be expected to have a material adverse effect, the U.S. Company
Benefit Plans are in compliance with all applicable provisions of ERISA and
the Code and all other applicable laws and the Company Foreign Plans are in
compliance with all applicable laws. As of the date hereof, the Company has
no reason to believe that any U.S. Company Benefit Plan that is a
Multiemployer Plan is not in compliance with the applicable provisions of
ERISA and the Code and all other applicable laws. All Company Pension Plans
have received favorable determination letters from the Internal Revenue
Service with respect to "TRA" (as defined in Section 1 of Rev. Proc. 93-39,
1993-2 C.B. 513), to the effect that such Company Pension Plans are qualified
and exempt from Federal income taxes under Sections 401(a) and 501(a),
respectively, of the Code, and no such determination letter has been revoked
nor, to the knowledge of the Company, has revocation been threatened, nor has
any such Company Pension Plan been amended since the date of its most recent
determination letter or application
<PAGE>
therefor in any respect that would adversely affect its qualification.
Except as would not reasonably be expected to have a material adverse effect,
all Company Foreign Plans are, wherever possible under applicable law or
practice, approved by the relevant governmental or taxation authority such as
to enable the plan, its beneficiaries and assets to enjoy the most favorable
taxation status possible and the Company is not aware of any ground on which
such approval may be withdrawn to any extent. Except as would not reasonably
be expected to have a material adverse effect, there is no pending or, to the
knowledge of the Company, threatened litigation, investigation or dispute
relating to the Company Benefit Plans.
(iv) Except as would not reasonably be expected to have a material
adverse effect, no Company Pension Plan, had, as of the respective last
annual valuation date for each such Company Pension Plan, any "unfunded
benefit liabilities", based on actuarial assumptions used for funding
purposes in the most recent actuarial report prepared by such plan's actuary
(which report has been furnished or made available to Rexam), and to the
knowledge of the Company, there has been no material adverse change in the
financial condition of any Company Pension Plan since its last such annual
valuation date. Except as would not reasonably be expected to have a
material adverse effect, no liability under Subtitle C or D of Title IV of
ERISA has been or is expected to be incurred by the Company or any of its
subsidiaries with respect to any U.S. Company Benefit Plan, or the
single-employer plan of any person or entity that, together with the Company
or any of its subsidiaries, is treated as a single employer (a "COMMONLY
CONTROLLED ENTITY") under Section 414(b), (c), (m) or (o) of the code or
Section 4001 of ERISA, that is maintained or contributed to for the benefit
of any current or former directors, officers, employees, agents, independent
contractors or consultants of the Company or any of its subsidiaries. Except
as would not reasonably be expected to have a material adverse effect, none
of the Company, any of its subsidiaries, any officer of the Company or any of
its subsidiaries or any of the U.S. Company Benefit Plans which are subject
to ERISA, including the Company Pension Plans or, to the knowledge of the
Company, any trusts created thereunder or any trustee or administrator
thereof, has engaged in a "prohibited transaction" (as such term is defined
in Section 406 of ERISA or Section 4975 of the Code) or any other breach of
fiduciary responsibility that could subject the Company, any subsidiaries of
the Company or any officer of the Company or any of its subsidiaries to the
tax
<PAGE>
or penalty on prohibited transactions imposed by such Section 4975 or to any
liability under Section 502(i) or 502(l) of ERISA. During the last five
years, none of the U.S. Company Benefit Plans and trusts has been terminated,
nor has there been any "reportable event" (as that term is defined in Section
4043 of ERISA) for which the 30-day reporting requirement has not been waived
or satisfied with respect to any U.S. Company Benefit Plan during the last
five years. During the last six years, neither the Company nor any of its
subsidiaries has incurred a "complete withdrawal" or a "partial withdrawal"
(as such terms are defined in Sections 4203 and 4205, respectively, of ERISA)
with respect to any Multiemployer Plan that the Company or any of its
subsidiaries has or had in the last six years an obligation to contribute to
on behalf of its or their employees. Except as would not reasonably be
expected to have a material adverse effect, all contributions and premiums
required to be made by the Company and its subsidiaries under the terms of
any Company Benefit Plan or with respect to any Multiemployer Plan in
accordance with the contribution schedules provided to the Company by the
administrator of any such Multiemployer Plan as of the date hereof have been
timely made or have been accrued in accordance with GAAP. Neither any
Company Pension Plan, nor to the knowledge of the Company, any
single-employer plan of a Commonly Controlled Entity has an "accumulated
funding deficiency" (as such term is defined in Section 302 of ERISA or
Section 412 of the Code), whether or not waived, in each case, as of the most
recent valuation date of any such plan.
(v) With respect to any U.S. Company Benefit Plan that is an
employee welfare benefit plan, (i) no such U.S. Company Benefit Plan is
unfunded or funded through a "welfare benefit fund" (as such term is defined
in Section 419(e) of the Code), (ii) each such U.S. Company Benefit Plan that
is a "group health plan" (as such term is defined in Section 5000(b)(1) of
the Code), complies with the applicable requirements of Section 4980B(f) of
the Code and (iii) the Company has reserved the right to amend or terminate
the U.S. Company Benefit Plans. Except as set forth in the Filed SEC
documents, neither the Company nor any of its subsidiaries has any material
obligations for retiree health and life benefits under any U.S. Company
Benefit Plan or Company Benefit Agreement.
(vi) The consummation of the Offer, the Merger or any
<PAGE>
other transaction contemplated by this Agreement will not (x) entitle any
employee, officer or director of the Company or any of its subsidiaries to
severance pay, (y) accelerate the time of payment or vesting or trigger any
payment or funding (through a grantor trust or otherwise) of compensation or
benefits under, increase the amount payable or trigger any other material
obligation pursuant to, any of the U.S. Company Benefit Plans or Company
Benefit Agreements or (z) result in any breach or violation of, or a default
under, any of the U.S. Company Benefit Plans or Company Benefit Agreements.
(vii) Any amount or economic benefit that could be received
(whether in cash or property or the vesting of property) as a result of the
Offer, the Merger or any other transaction contemplated by this Agreement
(including as a result of termination of employment on or following the
Effective Time) by any employee, officer or director of the Company or any of
its affiliates who is a "disqualified individual" (as such term is defined in
proposed Treasury Regulation Section 1.280G-1) under any U.S. Company Benefit
Plan or Company Benefit Agreement or otherwise would not be characterized as
an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code),
and no disqualified individual is entitled to receive any additional payment
from the Company or any of its subsidiaries or any other person in the event
that the excise tax under Section 4999 of the Code is imposed on such
disqualified individual. Set forth in the Company Disclosure Schedule is (i)
the estimated aggregate amount as of the date hereof that could be paid to
the persons listed on Section 3.01(m)(vii) of the Company Disclosure Schedule
("PRIMARY COMPANY EXECUTIVES") as a result of the Offer, the Merger and the
other transactions contemplated by this Agreement under all U.S. Company
Benefit Plans and Company Benefit Agreements and (ii) the "base amount" (as
defined in Section 280G(b)(3) of the Code) for each Primary Company Executive
calculated as of the date of this Agreement.
(viii) Except as would not reasonably be expected to have a
material adverse effect, the deduction of any amount payable pursuant to the
terms of the U.S. Company Benefit Plans or the Company Benefit Agreements
(including by reason of the transactions contemplated hereby) will not be
subject to disallowance under Section 162(m) of the Code.
(n) TAXES. (i) (A) Each of the Company and its subsidiaries has
timely filed all domestic and foreign (whether national, federal, state,
provincial, local or
<PAGE>
otherwise) tax returns and reports required to be filed by it except to the
extent any such failures to file, individually and in the aggregate, would
not reasonably be expected to have a material adverse effect; (B) each of the
Company and its subsidiaries has timely paid all taxes shown as due on such
returns and reports except to the extent any such failures to timely pay,
individually and in the aggregate, would not reasonably be expected to have a
material adverse effect; and (C) the most recent financial statements
contained in the Filed SEC Documents reflect an adequate reserve for all
current taxes payable by the Company and each of its subsidiaries (in
addition to any reserve for deferred taxes established to reflect timing
differences between book and tax items) for all taxable periods and portions
thereof through the date of such financial statements.
(ii) No material domestic or foreign (whether national, federal,
state, provincial, local or otherwise) income or franchise tax return or
report or any other material tax return or report of the Company or any of
its subsidiaries is under audit or examination by any taxing authority, and
no written or, to the knowledge of the Company, unwritten notice of such an
audit or examination has been received by the Company or any of its
subsidiaries. The Company has received no notice of deficiency, refund
litigation, proposed adjustment or matter in controversy with respect to any
material amount of taxes due and owing by the Company or any of its
subsidiaries. Each deficiency resulting from any completed audit or
examination relating to any material amount of taxes by any taxing authority
or any concluded litigation has been timely paid. The United States Federal
income tax returns of the Company and each of its subsidiaries that is
consolidated in such returns have been examined by the Internal Revenue
Service or have closed by virtue of the expiration of the relevant statute of
limitations for all years through December 13, 1995.
(iii) Except as disclosed on Section 3.01(n)(iii) of the Company
Disclosure Schedule, with respect to each of the Company and its
subsidiaries, to the knowledge of the Company there is no currently effective
agreement or other document extending, or having the effect of extending, the
period of assessment or collection of any taxes and no power of attorney with
respect to any taxes has been executed or
<PAGE>
filed with any taxing authority.
(iv) No material Liens for taxes exist upon any assets or
properties of the Company or any of its subsidiaries, except for statutory
Liens for taxes not yet due and Liens for taxes that the Company or any of
its subsidiaries is contesting in good faith for which adequate reserves have
been established.
(v) Except as disclosed on Section 3.01(n)(v) of the Company
Disclosure Schedule, none of the Company or any of its subsidiaries is a
party to or bound by any tax sharing agreement, tax indemnity obligation or,
to the knowledge of the Company, any similar agreement, arrangement or
practice with respect to taxes (including any advance pricing agreement,
closing agreement, gain recognition agreement or other material agreement
relating to taxes with any taxing authority).
(vi) None of the Company or any of its subsidiaries was, at any
time during a period specified in Section 897(c)(1)(A)(ii) of the Code, a
United States real property holding corporation within the meaning of Section
897(c)(2) of the Code.
(vii) None of the Company or any of its subsidiaries has at any
time since December 13, 1995 been a member of a Company Affiliated Group (as
defined in Section 3.01(n)(x)), other than a group of which the Company,
Pechiney North America, Inc. a Delaware corporation, or Pechiney, a French
corporation, directly or indirectly, singly or together, has been the common
parent, and, to the best knowledge of the Company, none of the Company or any
of its subsidiaries has any liability for taxes of any other person which is
not a subsidiary of the Company under Treasury Regulation Section 1.1502-6
(or comparable provisions of foreign, state or local law), as a transferee or
successor, by contract or otherwise.
(viii) Except as otherwise disclosed in the Filed SEC Documents,
none of the Company or any of its subsidiaries has constituted either a
"distributing corporation" or a "controlled corporation" in a distribution of
stock qualifying or intended to qualify for tax-free treatment under Section
355 of the Code in the two years prior to the date of this Agreement.
(ix) As disclosed in Section 3.01(n)(ix) of the Company Disclosure
Schedule, as of December 31, 1999, the Company had U.S. federal net operating
loss carryforwards
<PAGE>
(the "NOL CARRYFORWARDS") totaling not less than $343,338,892. Section
3.01(n)(ix) of the Company Disclosure Schedule sets forth the periods during
which the NOL Carryforwards arose and the expiration dates of the NOL
Carryforwards, identifies which amounts, if any, are currently limited under
Section 382 of the Code or the "separate return limitation year" ("SRLY")
rules of the consolidated return regulations, and, in the case of NOL
Carryforwards currently limited under Section 382 of the Code, the relevant
Section 382 limitation (within the meaning of Section 382(b)(1) of the Code).
(x) As used in this Agreement, (A) "TAXES" shall include all (x)
domestic and foreign (whether national, federal, state, provincial, local or
otherwise) income, franchise, property, sales, excise, employment, payroll,
social security, value-added, ad valorem, transfer, withholding, license,
severance, stamp, premium, environmental, customs, duties, capital stock,
unemployment, disability, registration, estimated, alternative, add-on
minimum and other taxes, including taxes based on or measured by gross
receipts, profits, sales, use or occupation, tariffs, levies, impositions,
assessments or governmental charges of any nature whatsoever, including any
interest penalties or additions with respect thereto, (y) liability for the
payment of any amounts of the type described in clause (x) as a result of
being a member of an affiliated, consolidated, combined or unitary group, and
(z) liability for the payment of any amounts as a result of being party to
any tax sharing agreement or as a result of any express or implied obligation
to indemnify any other person with respect to the payment of any amounts of
the types described in clause (x) or (y) and (B) "COMPANY AFFILIATED GROUP"
shall mean each group of which the Company or any of its subsidiaries is or
has been a member during a period for which the group filed a tax return or
report on an affiliated, combined, consolidated or unitary basis.
(o) INTELLECTUAL PROPERTY. (i) The Company and its subsidiaries
own, free and clear of all Liens, or are validly licensed or otherwise have
the right to use all the trademarks, service marks, trade names, brands,
copyrights and patents, all applications for registration and registrations
for such trademarks, copyrights and patents and all mask works, trade
secrets, confidential and proprietary information, compositions of matter,
formulas,
<PAGE>
designs, proprietary rights, know-how and processes owned by or licensed to
or used by the Company or any of its subsidiaries (all of the foregoing
collectively hereinafter referred to as the "INTELLECTUAL PROPERTY RIGHTS")
that are material to the conduct of the business of the Company and its
subsidiaries, with such exceptions as, individually or in the aggregate,
would not reasonably be expected to have a material adverse effect. To the
Company's knowledge, all the Intellectual Property Rights are valid,
enforceable and in full force and effect.
(ii) To the Company's knowledge, none of the Company or any of its
subsidiaries has interfered with, infringed upon or misappropriated any valid
Intellectual Property Rights or other proprietary information of any other
person, except any such infringement or misappropriation that, individually
and in the aggregate would not reasonably be expected to have a material
adverse effect. Since August 2, 1999, none of the Company or any of its
subsidiaries has received any written charge, complaint, claim, demand or
notice alleging any such interference, infringement, misappropriation or
other conflict (including any claim that the Company or any of its
subsidiaries must license or refrain from using any Intellectual Property
Rights or other proprietary information of any other person) that has not
been settled or otherwise fully resolved. To the Company's knowledge, no
other person has interfered with, infringed upon or misappropriated any
Intellectual Property Rights of the Company or any of its subsidiaries,
except any such infringement or misappropriation that, individually and in
the aggregate would not reasonably be expected to have a material adverse
effect.
(p) STATE TAKEOVER STATUTES. The Board of Directors of the
Company has taken all actions necessary to exempt the Offer, the Merger, this
Agreement, the Stockholders Agreement and the transactions contemplated
hereby and thereby under Section 203 of the DGCL. No other state takeover or
similar statute or regulation is applicable to this Agreement, the
Stockholders Agreement, the Offer, the Merger or the other transactions
contemplated hereby or thereby.
(q) BROKERS; SCHEDULE OF FEES AND EXPENSES. No broker, investment
banker, financial advisor, finder or other similar person, other than
Deutsche Bank Securities Inc., the fees and expenses of which will be paid by
the Company, is entitled to any broker's, finder's, financial advisor's or
other similar fee or commission in connection
<PAGE>
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of the Company. The Company has delivered to Rexam true
and complete copies of all agreements under which any such fees or expenses
are payable and all indemnification and other agreements related to the
engagement of the persons to whom such fees are payable.
(r) OPINION OF FINANCIAL ADVISOR. The Company has received the
written opinion of Deutsche Bank Securities Inc., substantially to the effect
that, as of the date hereof, the consideration to be received in the Offer
and the Merger by the Company's stockholders is fair to the Company's
stockholders from a financial point of view, a copy of which opinion has been
delivered to Rexam.
SECTION 3.02. REPRESENTATIONS AND WARRANTIES OF REXAM AND SUB.
Rexam and Sub represent and warrant to the Company as follows:
(a) ORGANIZATION. Each of Rexam and Sub is a corporation duly
incorporated or organized, validly existing and in good standing under the
laws of the jurisdiction in which it is incorporated or organized and has
all requisite corporate power and authority to carry on its business as now
being conducted.
(b) AUTHORITY; NONCONTRAVENTION. Rexam and Sub have the requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and
delivery of this Agreement by Rexam and Sub, the consummation by Rexam and
Sub of the transactions contemplated hereby and the financing arrangements
referred to in Section 3.02(d), have been duly authorized by all necessary
corporate action on the part of Rexam and Sub and no other corporate
proceedings on the part of Rexam or Sub are necessary to approve this
Agreement or to consummate the transactions contemplated hereby, subject to
obtaining the approval of this Agreement and the transactions contemplated
hereby, including the Offer and the Merger, at the Rexam Shareholders
Meeting (as defined in Section 5.01(c)) or any adjournment or postponement
thereof by the holders of the outstanding ordinary shares of Rexam to the
extent required by the rules of
<PAGE>
the London Stock Exchange (the "REXAM SHAREHOLDER APPROVAL"). The Rexam
Shareholder Approval shall require only the affirmative vote of the holders
of a majority of all of the outstanding ordinary shares of Rexam that are
entitled to vote upon the proposals to approve this Agreement, the Offer
and the Merger and are present or represented by proxy at the Rexam
Shareholders Meeting. This Agreement has been duly executed and delivered
by Rexam and Sub, as applicable, and constitutes a valid and binding
obligation of Rexam and Sub, as applicable, enforceable against Rexam and
Sub, as applicable, in accordance with its terms, subject to laws
concerning bankruptcy and creditors' rights. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby
and compliance with the provisions hereof 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 or the certificate of
incorporation or by-laws or similar organizational documents of any of its
subsidiaries (including Sub), (ii) any Contract to which Rexam or Sub is a
party or any of their respective properties or assets 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 Rexam or Sub or
their respective 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 and in the aggregate,
would not reasonably be expected to prevent or materially impede or delay
the consummation of the Offer, the Merger or the other transactions
contemplated hereby. No consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental Entity is
required by Rexam or Sub in connection with the execution and delivery of
this Agreement by Rexam and Sub and the execution and delivery of the
Stockholders Agreement by
<PAGE>
Rexam or the consummation by Rexam and Sub of the transactions contemplated
hereby and thereby or the compliance with the provisions hereof or thereof,
except for (1) the filing of a premerger notification and report form under
the HSR Act or the anti-competition laws or regulations of the European
Union or any foreign jurisdiction in which the Company or Rexam (directly
or through subsidiaries, in each case) has material assets or conducts
material operations, or any other applicable competition, merger control,
antitrust or similar laws or regulations, (2) the filing of the Certificate
of Merger with the Secretary of State of the State of Delaware and
appropriate documents with the relevant authorities of other states in
which the Company is qualified to do business, (3) filings in connection
with the Rexam Shareholder Approval, including the filing of the Circular
with the London Stock Exchange, (4) the filing of the Offer Documents with
the SEC and (5) such other consents, approvals, orders, authorizations,
registrations, declarations and filings the failure of which to be obtained
or made, individually and in the aggregate, would not impair in any
material respect the ability of Rexam or Sub to perform its obligations
under this Agreement or prevent or materially delay the consummation of any
of the transactions contemplated by this Agreement.
(c) INTERIM OPERATIONS OF SUB. Sub was formed solely for the purpose
of engaging in the transactions contemplated hereby and has engaged in no
business other than in connection with the transactions contemplated by
this Agreement.
(d) CAPITAL RESOURCES. Prior to the date hereof, Rexam has obtained
written commitments for the financing to pay for all shares of the Company
Common Stock validly tendered into and not withdrawn from the Offer and to
pay the Merger Consideration and all associated costs and expenses
(including refinancing of the Company's existing indebtedness following the
consummation of the Offer), copies of which have been delivered to the
Company.
(e) DIRECTOR RECOMMENDATIONS. The Board of Directors of Rexam (or a
duly authorized committee) has
<PAGE>
duly and unanimously adopted resolutions which are still in full force and
effect as of the date hereof (i) approving and declaring advisable the
Offer, the Merger, this Agreement and the transactions contemplated hereby
(ii) directing that this Agreement be submitted to a vote at a meeting of
Rexam's shareholders and (iii) recommending that Rexam's shareholders
approve this Agreement.
ARTICLE IV
COVENANTS RELATING TO CONDUCT OF BUSINESS
SECTION 4.01. CONDUCT OF BUSINESS. (a) CONDUCT OF BUSINESS BY
THE COMPANY. During the period from the date of this Agreement to the
Effective Time, except (i) as consented to in writing by Rexam, (ii) as
specifically contemplated by this Agreement or (iii) as disclosed on Schedule
4.01 of the Company Disclosure Schedule (with specific reference to the
Subsection of this Section 4.01 to which the information stated in such
disclosure relates and such other Subsections of this Section 4.01 to the
extent a matter is disclosed in such a way as to make its relevance to the
information called for by such other Subsection readily apparent), the
Company shall, and shall cause its subsidiaries to, carry on their respective
businesses in the ordinary course consistent with past practice and use their
commercially reasonable efforts to comply with all applicable laws, rules and
regulations and, to the extent consistent therewith, use their commercially
reasonable efforts to preserve their assets and technology and preserve their
relationships with customers, suppliers, licensors, licensees, distributors
and others having business dealings with them in all material respects.
Without limiting the generality of the foregoing, but subject to clauses (i),
(ii) and (iii) above, the Company shall not, and shall not permit any of its
subsidiaries to:
(i) (w) declare, set aside or pay any dividends on, or make any other
distributions (whether in cash, stock or property) in respect of, any of
its capital stock except for cash dividends by a direct or indirect wholly
owned subsidiary of the Company organized under the laws of any
jurisdiction other than any European subsidiary of the Company to its
parent, (x) purchase, redeem or otherwise acquire any shares of capital
stock or any other securities of the Company or its subsidiaries or any
options, warrants, calls or rights
<PAGE>
to acquire any such shares or other securities, (y) split, combine or
reclassify any of its capital stock or issue or authorize the issuance of
any other securities in respect of, in lieu of or in substitution for
shares of its capital stock or any of its other securities or (z) liquidate
or merge with any subsidiaries of the Company;
(ii) issue, deliver, sell, pledge or otherwise transfer or encumber
any shares of its capital stock, any other equity or voting interests or
any securities convertible into, or exchangeable for, or any options,
warrants, calls or rights to acquire, any such shares, voting securities or
convertible securities or any stock appreciation rights or other rights
that are linked to the price of Company Common Stock (other than the
issuance of shares of Company Common Stock upon the exercise of Company
Stock Options that are in existence on the date of this Agreement);
(iii) amend its certificate of incorporation or by-laws (or similar
organizational documents);
(iv) directly or indirectly acquire or agree to acquire (A) by merging
or consolidating with, or by purchasing all or a substantial portion of the
assets of, or by any other manner, any assets constituting a business or
any corporation, partnership, joint venture or association or other entity
or division thereof, or any direct or indirect interest in any of the
foregoing, or (B) any assets other than purchases of assets in the ordinary
course of business consistent with past practice;
(v) directly or indirectly sell, lease, license, sell and leaseback,
mortgage or otherwise encumber or subject to any Lien or otherwise dispose
of any of its properties or assets or any interest therein, except sales of
(i) inventory and obsolete assets in the ordinary course of business
consistent with past practice and (ii) immaterial assets in the ordinary
course of business consistent with past practice;
(vi) (x) repurchase, accelerate, prepay or incur any indebtedness or
guarantee any indebtedness of another person or issue or sell any debt
securities or options,
<PAGE>
warrants, calls or other rights to acquire any debt securities of the
Company or any of its subsidiaries, guarantee any debt securities of
another person, enter into any "keep well" or other agreement to maintain
any financial statement condition of another person or enter into any
arrangement having the economic effect of any of the foregoing, except
for (A) short-term borrowings incurred in the ordinary course of business
consistent with past practice, (B) borrowings under existing credit
facilities of the Company or any of its subsidiaries up to the
existing borrowing limit on the date hereof or (C) any acceleration of the
indebtedness of the Company and its subsidiaries occurring as a result of
the consummation of the Offer, the Merger or the other transactions
contemplated hereby or by the Stockholders Agreement (PROVIDED, HOWEVER,
that with respect to this Section 4.01(a)(vi)(x), such borrowings at any
month end shall not exceed by more than $50,000,000 in the aggregate the
maximum amount for any month end set forth in the Company's current 2000
budget, a true and complete copy of which has been made available to Rexam
prior to the date of this Agreement, which maximum amount is hereby
represented and warranted by the Company to be no more than $1.2 billion),
(y) make any loans, advances or capital contributions to, or investments
in, any other person, other than the Company or any direct or indirect
wholly owned subsidiary of the Company, other than in the ordinary course
of business consistent with past practice and not materially greater than
the amounts, if any, set forth in the Company's current 2000 budget or
(z) enter into any hedging agreement or other financial agreement or
arrangement designed to protect the company against fluctuations in
commodities prices or current exchange rates, except agreements or
arrangements in respect of contractual commitments of the Company entered
into in the ordinary course of business consistent with past practice;
(vii) incur or commit to incur any capital expenditures, whether by
acquisition or internal investment, or any obligations or liabilities in
connection therewith, in excess of $3,000,000 individually or $6,000,000 in
the aggregate above expenditures that are consistent (as to amount) and not
materially inconsistent (as to timing) with the Company's current capital
budget for 2000, a true and complete copy of which has been made available
to Rexam prior to the date of this Agreement;
<PAGE>
(viii) pay, discharge, settle or satisfy any claims (including claims
of stockholders), liabilities or obligations (whether absolute, accrued,
asserted or unasserted, contingent or otherwise), in excess of $5,000,000
in the aggregate other than the payment, discharge or satisfaction in the
ordinary course of business consistent with past practice or as required by
their terms as in effect on the date of this Agreement of claims,
liabilities or obligations reflected, reserved against or otherwise
disclosed in the most recent audited financial statements (or the notes
thereto) of the Company included in the Filed SEC Documents (for amounts
not in excess of such reserves or as otherwise disclosed) or incurred since
the date of such financial statements in the ordinary course of business
consistent with past practice, or waive, release, grant or transfer any
right of material value, other than in the ordinary course of business
consistent with past practice, or waive any material benefits of, or agree
to modify in any adverse respect, or fail to enforce, or consent to any
matter with respect to which its consent is required under, any
confidentiality, standstill or similar agreement to which the Company or
any of its subsidiaries is a party;
(ix) (A) grant to any employee, officer, director, consultant or
independent contractor of the Company or any of its subsidiaries any
increase in cash compensation or pay any bonus, other than in the ordinary
course of business consistent with past practice to persons that are not
directors or Primary Company Executives, (B) grant to any employee,
officer, director, consultant or independent contractor of the Company or
any of its subsidiaries any increase in severance or termination pay,
(C) establish, adopt, enter into or amend any Company Benefit Agreement,
(D) establish, adopt, enter into or amend in any material respect any
collective bargaining agreement (except that the collective bargaining
agreements covering the Oklahoma City, Valparaiso or Whitehouse plants may
be adopted after prior notification to Rexam) or Company Benefit Plan,
(E) take any action to accelerate any rights or benefits, take any action
to fund or in any other way secure the payment of
<PAGE>
compensation or benefits under any Company Benefit Agreement or Company
Benefit Plan, or make any material determinations not in the ordinary
course of business consistent with past practice, under any collective
bargaining agreement or Company Benefit Plan or Company Benefit Agreement,
other than pursuant to the provisions of Section 5.04 hereof, including
any payment of cash pursuant thereto or (F) amend or modify or grant any
Company Stock Option, in each case above other than (i) changes that are
required by applicable law or (ii) to satisfy obligations existing as of
the date hereof;
(x) fail to maintain existing insurance at levels substantially
comparable to current levels;
(xi) transfer or license to any person or entity or otherwise extend,
amend or modify any rights to the Intellectual Property Rights of the
Company and its subsidiaries other than in the ordinary course of business
consistent with past practices; PROVIDED that in no event shall the Company
license on an exclusive basis or sell any Intellectual Property Rights of
the Company or its subsidiaries;
(xii) enter into or amend any agreements pursuant to which any person
is granted exclusive marketing, manufacturing or other rights with respect
to any material Company product, process or technology;
(xiii) except insofar as may be required by a change in GAAP or
generally accepted accounting principles of the applicable jurisdiction or
changes in applicable law, make any changes in accounting methods,
principles or practices;
(xiv) take any action that would reasonably be expected to result in
(A) any representation and warranty of the Company set forth in this
Agreement that is qualified as to materiality becoming untrue, (B) any such
representation and warranty that is not so qualified becoming untrue in any
material respect or (C) any condition to the Offer or the Merger not being
satisfied;
(xv) transfer, encumber or redeem any shares of capital stock of
Nacanco Holding Europe or Nacanco Holding France; or
<PAGE>
(xvi) authorize any of, or commit, resolve or agree to take any of,
the foregoing actions.
(b) CERTAIN TAX MATTERS. During the period from the date of this
Agreement to the Effective Time, the Company shall, and shall cause each of
its subsidiaries to, (i) timely file all tax returns ("POST-SIGNING RETURNS")
required to be filed by each such entity; (ii) timely pay all taxes due and
payable in respect of such Post-Signing Returns that are so filed; (iii)
accrue a reserve in the books and records and financial statements of any
such entity in accordance with past practice for all taxes payable by such
entity for which no Post-Signing Return is due prior to the Effective Time;
(iv) promptly notify Rexam of any suit, claim, action, investigation,
proceeding or audit (collectively, "ACTIONS") pending against or with respect
to the Company or any of its subsidiaries in respect of any tax and not
settle or compromise any such Action without Rexam's consent; (v) not make
any material tax election without Rexam's consent, which consent shall not be
unreasonably withheld; and (vi) upon satisfaction of or waiver of the
conditions set forth in Article VI cause all existing tax sharing agreements,
tax indemnity obligations and similar agreements, arrangements and practices
with respect to taxes to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is otherwise bound
to be terminated as of the Closing Date (unless directed otherwise by Rexam
in writing delivered to the Company at least five business days prior to the
Closing) so that after such date neither the Company nor any of its
subsidiaries shall have any further rights or liabilities thereunder.
(c) CONDUCT OF BUSINESS BY REXAM. During the period from the date
of this Agreement to the Effective Time, Rexam shall not make any
acquisitions of assets or businesses in the beverage packaging industry
which, in its reasonable judgment, would be reasonably likely to materially
impede obtaining the regulatory approvals necessary to consummate the Offer
and the Merger.
SECTION 4.02. NO SOLICITATION. (a) The Company shall not, nor
shall it permit any of its subsidiaries to, nor shall it authorize or permit
any director, officer or employee of the Company or any of its subsidiaries
or any investment banker, attorney, accountant or other advisor or
<PAGE>
representative of the Company or any of its subsidiaries to, directly or
indirectly, (i) solicit, initiate or encourage, or take any other action to
facilitate, any Takeover Proposal (as defined below) or (ii) 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; PROVIDED
that at any time prior to the acceptance for payment of shares of Company
Common Stock pursuant to and subject to the conditions of the Offer (the
"SPECIFIED DATE"), the Board of Directors of the Company may, in response to
a Superior Proposal (as defined below) or a bona fide Takeover Proposal that
such Board of Directors determines in good faith is reasonably likely to lead
to a Superior Proposal (a "LIKELY SUPERIOR PROPOSAL"), in each case that was
unsolicited and that did not otherwise result from a breach of this Section
4.02, and subject to compliance with Section 4.02(c), (x) furnish information
with respect to the Company and its subsidiaries to the person making such
Superior Proposal or Likely Superior Proposal (and its representatives)
pursuant to a customary confidentiality agreement (which confidentiality
agreement contains terms that are no less favorable to the Company than, the
terms of the Confidentiality Agreement dated March 10, 2000, between Rexam
and the Company (as it may be amended from time to time, the "CONFIDENTIALITY
AGREEMENT")); and (y) participate in discussions or negotiations with the
person making such Superior Proposal or Likely Superior Proposal (and its
representatives) regarding such Superior Proposal or Likely Superior Proposal.
For purposes of this Agreement, "SUPERIOR PROPOSAL" means any offer
not solicited by the Company made by a third party to consummate a tender offer,
exchange offer, merger, consolidation or similar transaction which would result
in such third party (or its shareholders) owning, directly or indirectly, more
than 50% of the shares of Company Common Stock then outstanding (or of the
surviving entity in a merger) or all or substantially all of the assets of the
Company and its subsidiaries and otherwise on terms which the Board of Directors
of the Company determines in good faith (following receipt of the advice of a
financial advisor of nationally recognized reputation) to provide consideration
to the holders of Company Common Stock with a greater value than the
consideration payable in the Merger, taking into account any changes to the
terms of this Agreement proposed in writing by Rexam in response to such
<PAGE>
Superior Proposal or otherwise.
For purposes of this Agreement, "TAKEOVER PROPOSAL" means any
inquiry, proposal or offer from any person relating to any direct or indirect
acquisition or purchase of 15% or more of the assets of the Company and its
subsidiaries, taken as a whole, or 15% or more of any class or series of
equity securities of the Company or any of its subsidiaries, any tender offer
or exchange offer that if consummated would result in any person beneficially
owning 15% or more of any class or series of equity securities of the Company
or any of its subsidiaries, or any merger, consolidation, business
combination, recapitalization, liquidation, dissolution or similar
transaction involving the Company or any of its subsidiaries, other than the
transactions contemplated by this Agreement.
(b) Except as set forth below, neither the Board of Directors of
the Company nor any committee thereof shall (i) withdraw (or modify in a
manner adverse to Rexam or Sub) or propose to withdraw (or modify in a manner
adverse to Rexam or Sub) the approval or recommendation by such Board of
Directors or any such committee of this Agreement, the Offer or the Merger,
(ii) adopt, approve or recommend, or propose to adopt, approve or recommend,
any Takeover Proposal, (iii) cause or permit the Company to enter into any
letter of intent, memorandum of understanding, agreement in principle,
acquisition agreement, merger agreement or other similar agreement (each, an
"ACQUISITION AGREEMENT") constituting or related to, or which is intended to
or is reasonably likely to lead to, any Takeover Proposal (other than a
confidentiality agreement referred to in Section 4.02(a) entered into under
the circumstances referred to in such Section 4.02(a)) or (iv) agree or
resolve to take any of the actions set forth in clauses (i), (ii) or (iii) of
this sentence. Notwithstanding the foregoing, at any time prior to the
Specified Date, the Board of Directors of the Company may, in response to a
Superior Proposal that was unsolicited and that did not otherwise result from
a breach of Section 4.02(a), withdraw or modify the recommendation by such
Board of Directors of this Agreement, the Offer or the Merger or terminate
this Agreement, if such Board of Directors determines in good faith (after
consultation with outside counsel) that its fiduciary obligations require it
to do so (and concurrently with or after such termination, if it so chooses,
cause the
<PAGE>
Company to enter into any Acquisition Agreement with respect to any
Superior Proposal), but only at a time that is prior to the Specified Date
and is after the fourth business day following Rexam's receipt of written
notice advising Rexam that the Board of Directors of the Company is prepared
to accept a Superior Proposal, specifying the material terms and conditions
of such Superior Proposal and identifying the person making such Superior
Proposal.
(c) In addition to the obligations of the Company set forth in
paragraphs (a) and (b) of this Section 4.02, the Company shall promptly (and in
no event later than 72 hours) advise Rexam orally and in writing of any request
for information that the Company reasonably believes could lead to or
contemplates a Takeover Proposal or of any Takeover Proposal, or any inquiry the
Company reasonably believes could lead to any Takeover Proposal, the terms and
conditions of such request, Takeover Proposal or inquiry (including any
subsequent amendment or other modification to such terms and conditions) and the
identity of the person making any such request, Takeover Proposal or inquiry.
The Company shall promptly keep Rexam informed in all material respects of the
status and details (including amendments or proposed amendments) of any such
request, Takeover Proposal or inquiry.
(d) Nothing contained in this Section 4.02 or elsewhere in this
Agreement shall prohibit the Company from (i) taking and disclosing to its
stockholders a position contemplated by Rule 14e-2(a) promulgated under the
Exchange Act or (ii) making any disclosure to the Company's stockholders if, in
the good faith judgment of the Board of Directors of the Company, after
consultation with outside counsel, failure so to disclose would be inconsistent
with applicable law; PROVIDED, HOWEVER, that, except as set forth in
Section 4.02(b), in no event shall the Board of Directors of the Company or any
committee thereof withdraw or modify, or propose to withdraw or modify, its
position with respect to this Agreement, the Offer or the Merger or adopt,
approve or recommend, or propose to adopt, approve or recommend, any Takeover
Proposal.
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.01. PREPARATION OF THE PROXY STATEMENT; COMPANY
STOCKHOLDERS MEETING; REXAM SHAREHOLDERS MEETING;
<PAGE>
OFFERING CIRCULAR. (a) If the adoption of this Agreement by the Company's
stockholders is required by law, the Company and Rexam shall, as promptly as
practicable following the expiration of the Offer, prepare and file with the
SEC the Proxy Statement and the Company shall use its commercially reasonable
efforts to respond as promptly as practicable to any comments of the SEC with
respect thereto and to cause the Proxy Statement to be mailed to the
Company's stockholders as promptly as practicable following the expiration of
the Offer. The Company shall promptly notify Rexam upon the receipt of any
comments from the SEC or its staff or any request from the SEC or its staff
for amendments or supplements to the Proxy Statement and shall provide Rexam
with copies of all correspondence between the Company and its
representatives, on the one hand, and the SEC and its staff, on the other
hand. Notwithstanding the foregoing, prior to filing or mailing the Proxy
Statement (or any amendment or supplement thereto) or responding to any
comments of the SEC with respect thereto, the Company (i) shall provide Rexam
an opportunity to review and comment on such document or response, (ii) shall
include in such document or response all comments reasonably proposed by
Rexam and (iii) shall not file or mail such document or respond to the SEC
prior to receiving Rexam's approval, which approval shall not be unreasonably
withheld or delayed.
(b) If the adoption of this Agreement by the Company's
Stockholders is required by law, the Company shall, as promptly as
practicable following the expiration of the Offer, establish a record date
(which will be as promptly as reasonably practicable following the expiration
of the Offer) for, duly call, give notice of, convene and hold a meeting of
its stockholders (the "COMPANY STOCKHOLDERS MEETING") for the purpose of
obtaining the Company Stockholder Approval. Subject to Section 4.02(b), the
Company shall, through its Board of Directors, recommend to its stockholders
that they adopt this Agreement, and shall include such recommendation in the
Proxy Statement. Without limiting the generality of the foregoing, the
Company agrees that its obligations pursuant to the first sentence of this
Section 5.01(b) shall not be affected by (i) the commencement, public
proposal, public disclosure or communication to the Company or any other
person of any Takeover Proposal or (ii) the withdrawal or modification by the
Board of Directors of the Company or any committee
<PAGE>
thereof of such Board's or committee's approval or recommendation of the
Offer, the Merger or this Agreement. Notwithstanding the foregoing, if Sub
or any other subsidiary of Rexam shall acquire at least 90% of the
outstanding shares of Company Common Stock, the parties shall take all
necessary and appropriate action to cause the Merger to become effective as
soon as practicable after the expiration of the Offer without the Company
Stockholders Meeting in accordance with Section 253 of the DGCL.
(c) Rexam shall, as promptly as practicable following the date of
this Agreement, establish a record date for, duly call, give notice of,
convene and hold an extraordinary general meeting of its shareholders, which
Rexam shall endeavor to hold as promptly as practicable following the date of
this Agreement (the "REXAM SHAREHOLDERS MEETING") for the purpose of
obtaining the Rexam Shareholder Approval. In connection with the Rexam
Shareholders Meeting, Rexam shall in accordance with applicable law and stock
exchange regulations, as promptly as practicable following the date of this
Agreement, file with the London Stock Exchange a draft copy of its Class 1
Circular and, if required, listing particulars, (the "CIRCULAR") relating to
the matters to be considered at the Rexam Shareholders Meeting, respond
promptly to any comments made by the London Stock Exchange with respect to
the draft Circular and cause a definitive Circular to be mailed to its
shareholders as promptly as practicable following filing with the London
Stock Exchange. Neither the Board of Directors of Rexam nor any committee
thereof shall withdraw (or modify in a manner adverse to the Company) or
propose to withdraw (or modify in a manner adverse to the Company) the
approval or recommendation by such Board of Directors or any such committee
of this Agreement, the Offer or the Merger unless the Board of Directors (or
any such committee) determines in good faith (after consultation with outside
counsel) that its fiduciary obligations require it to do so.
(d) Rexam agrees to cause all shares of Company Common Stock
purchased pursuant to the Offer and all other shares of Company Common Stock
owned by Rexam or any subsidiary of Rexam to be voted in favor of the Company
Stockholder Approval.
SECTION 5.02. ACCESS TO INFORMATION; CONFIDENTIALITY. Except as
required by applicable law, the Company shall, and shall cause each of its
subsidiaries to, afford to Rexam, and to Rexam's officers, employees,
investment bankers, attorneys, accountants and other
<PAGE>
advisors and representatives, reasonable and reasonably prompt access during
normal business hours during the period prior to the Effective Time or the
termination of this Agreement to all their respective properties, assets,
books, contracts, commitments, directors, officers, employees, attorneys,
accountants, auditors, other advisors and representatives and records and,
during such period, the Company shall, and shall cause each of its
subsidiaries to, make available to Rexam on a prompt basis (a) a copy of each
report, schedule, form, statement and other document filed or received by it
during such period pursuant to the requirements of domestic or foreign
(whether national, federal, state, provincial, local or otherwise) laws and
(b) all other information concerning its business, properties and personnel
as Rexam may reasonably request (including access to, but not copies of, the
work papers of PricewaterhouseCoopers LLP). Except as required by law, Rexam
will hold, and will direct its officers, employees, investment bankers,
attorneys, accountants and other advisors and representatives to hold, any
and all information received from the Company, directly or indirectly, in
confidence in accordance with the Confidentiality Agreement.
SECTION 5.03. COMMERCIALLY REASONABLE EFFORTS; NOTIFICATION. (a)
Upon the terms and subject to the conditions set forth in this Agreement,
each of the parties agrees to use all commercially reasonable efforts to
take, or cause to be taken, all actions, that are necessary, proper or
advisable to consummate and make effective the Offer, the Merger and the
other transactions contemplated by this Agreement and the Stockholders
Agreement, including using all commercially reasonable efforts to accomplish
the following: (i) the taking of all commercially reasonable acts necessary
to cause the conditions to the Offer and the Merger to be satisfied, (ii) the
obtaining of all necessary actions or nonactions, waivers, consents,
approvals, orders and authorizations from Governmental Entities and the
making of all necessary registrations, declarations and filings, including
the making of all filings under the HSR Act and the European antitrust laws
as promptly as reasonably practicable, and in any event, within 15 business
days after the date hereof, and (iii) the obtaining of all necessary
consents, approvals or waivers from third parties. In connection with and
without limiting the foregoing, the Company and its Board of Directors shall,
if any state
<PAGE>
takeover statute or similar statute or regulation is or becomes applicable to
this Agreement, the Stockholders Agreement, the Offer, the Merger or any of
the other transactions contemplated hereby or thereby, use its commercially
reasonable efforts to ensure that the Offer, the Merger and the other
transactions contemplated by this Agreement or the Stockholders Agreement may
be consummated as promptly as practicable on the terms contemplated by this
Agreement or the Stockholders Agreement and otherwise to minimize the effect
of such statute or regulation on this Agreement or the Stockholders
Agreement, the Offer, the Merger and the other transactions contemplated
hereby or thereby. The Company and Rexam shall keep the other apprised of
the status of matters relating to the completion of the transactions
contemplated hereby and work cooperatively in connection with obtaining any
such waivers, consents, approvals, orders and authorizations, including,
without limitation: (i) promptly notifying the other of, and if in writing,
furnishing the other with copies of (or, in the case of material oral
communications, advise the other orally of) any communications from or with
any Governmental Entity with respect to the Offer, the Merger or any of the
other transactions contemplated by this Agreement, (ii) permitting the other
party to review and discuss in advance, and considering in good faith the
views of one another in connection with, any proposed written (or material
proposed oral) communication with any Governmental Entity, (iii) not
participating in any meeting with any Governmental Entity unless it consults
with the other party in advance and to the extent permitted by such
Governmental Entity gives the other party the opportunity to attend and
participate thereat, (iv) furnishing the other party with copies of all
correspondence, filings and communications (and memoranda setting forth the
substance thereof) between it and any Governmental Entity with respect to
this Agreement, the Offer and the Merger, and (v) furnishing the other party
with such necessary information and reasonable assistance as such other party
may reasonably request in connection with its preparation of necessary
filings or submissions of information to any Governmental Entity. The
Company and Rexam may, as each deems advisable and necessary, reasonably
designate any competitively sensitive material provided to the other under
this Section as "outside counsel only." Such materials and the information
contained therein shall be given only to the outside legal counsel of the
recipient and will not be disclosed by such outside counsel to employees,
officers, or directors of the recipient unless express permission is obtained
in advance from the source of the materials (the Company or Rexam, as
<PAGE>
the case may be) or its legal counsel.
(b) The Company shall give prompt notice to Rexam, and Rexam shall
give prompt notice to the Company, of (i) any representation or warranty made
by it contained in this Agreement that is qualified as to materiality
becoming untrue or inaccurate in any respect or any such representation or
warranty that is not so qualified becoming untrue or inaccurate in any
material respect or (ii) the failure by it to comply with or satisfy in any
material respect any covenant, condition agreement to be complied with or
satisfied by it under this Agreement; PROVIDED that no such notification
shall affect the representations, warranties, covenants or agreements of the
parties or the conditions to the obligations of the parties under this
Agreement.
SECTION 5.04. COMPANY STOCK OPTIONS AND OTHER EQUITY BASED AWARDS.
(a) As soon as practicable following the date of this Agreement, the Board
of Directors of the Company (or, if appropriate, any committee administering
the Company Stock Plans) shall adopt such resolutions or take such other
actions (if any) as may be required to provide that (i) each Company Stock
Option, whether vested or unvested, shall be canceled effective immediately
after the earlier of the Specified Date if upon closing
of the Offer Rexam owns directly or indirectly at least 80% of the Company
Common Stock and the Effective Time, with the holder thereof becoming
entitled to receive an amount of cash equal to the product of (x) the excess,
if any, of (A) the Merger Consideration over (B) the exercise price per share
of Company Common Stock subject to such Company Stock Option, multiplied by
(y) the number of shares of Company Common Stock issuable pursuant to the
unexercised portion of such Company Stock Option less any tax withholding
required by the Code or any provision of state or local law and (ii) at the
earlier of the Specified Date if upon closing of the Offer Rexam owns
directly or indirectly at least 80% of the Company Common Stock and the
Effective Time, each deferred stock unit, conversion share, restricted stock
obligation and performance share under the Stock Compensation Conversion
Plan, Directors' Stock Plan, Directors' Pension Conversion Plan and 1999
Long-Term Stock Incentive Plan (collectively, the "STOCK AWARDS") shall fully
vest and become immediately payable or distributable and immediately
following the earlier of the Specified Date if upon closing
<PAGE>
of the Offer Rexam owns directly or indirectly at least 80% of the Company
Common Stock and the Effective Time, each Stock Award shall be canceled and
the holder thereof shall be entitled to receive an amount in cash equal to
the product of (x) the Merger Consideration, multiplied by (y) the number of
shares of Company Common Stock subject to such Stock Award, less any tax
withholding required under the Code or any provision of state or local law.
All amounts payable pursuant to this Section 5.04 shall be paid no later than
two business days following the earlier of the Specified Date if upon closing
of the Offer Rexam owns directly or indirectly at least 80% of the Company
Common Stock and the Effective Time.
(b) The Company shall use its reasonable efforts to take all
actions determined to be necessary to effectuate the foregoing as mutually
agreed by Rexam and the Company.
(c) Prior to the Effective Time, the Company Board of Directors
(or, if appropriate, any committee administering the Company Stock Plans)
shall take or cause to be taken such actions as are required to cause (x) the
Company Stock Plans to terminate as of the Effective Time, subject to the
prior satisfaction of all obligations thereunder and (y) the provisions in
any other Company Benefit Plan providing for the issuance, transfer or grant
of any capital stock of the Company or any interest on or following the
Effective Time in respect of any capital stock of the Company to be deleted
as of the Effective Time.
SECTION 5.05. INDEMNIFICATION, EXCULPATION AND INSURANCE. (a)
Rexam and Sub agree that all rights to indemnification and exculpation from
liabilities for acts or omissions occurring at or prior to the Effective Time
now existing in favor of the current or former directors or officers of the
Company and its subsidiaries as provided in their respective certificates of
incorporation or by-laws (or similar organizational documents) shall be
assumed by the Surviving Corporation in the Merger, without further action,
at the Effective Time and shall survive the Merger and shall continue in full
force and effect in accordance with their terms.
(b) In the event that the Surviving Corporation or any of its
successors or assigns (i) consolidates with or merges into any other person
and is not the continuing or surviving corporation or entity of such
consolidation or merger or (ii) transfers or conveys all or substantially all
its properties and assets to any person, then, and in each
<PAGE>
such case, Rexam shall cause proper provision to be made so that the
successors and assigns of the Surviving Corporation assume the obligations
set forth in this Section 5.05.
(c) For six years after the Effective Time, Rexam shall maintain
in effect the Company's current directors' and officers' liability insurance
covering each person currently covered by the Company's directors' and
officers' liability insurance policy for acts or omissions occurring prior to
the Effective Time on terms with respect to such coverage and amounts no less
favorable in any material respect to such directors and officers than those
of such policy as in effect on the date of this Agreement; PROVIDED that (i)
Rexam may substitute therefor policies of a reputable insurance company the
material terms of which, including coverage and amount, are no less favorable
in any material respect to such directors and officers than the insurance
coverage otherwise required under this Section 5.05(c) and (ii) in no event
shall Rexam be required to pay aggregate premiums for insurance under this
Section 5.05(c) in excess of 150% of the amount of the aggregate premiums
paid by the Company for 1999 for such purpose (which 1999 premiums are hereby
represented and warranted by the Company to be $630,000); PROVIDED FURTHER
that Rexam shall nevertheless be obligated to provide such coverage as may be
obtained for such 150% amount.
(d) The Company shall, to the fullest extent permitted under
applicable law and regardless of whether the Merger becomes effective,
indemnify and hold harmless, and, after the Effective Time, the Surviving
Corporation shall, to the fullest extent permitted under applicable law,
indemnify and hold harmless, each present and former director and officer of
the Company and each subsidiary of the Company (the "INDEMNIFIED PARTIES")
against all costs and expenses (including reasonable attorneys' fees),
judgments, fines, losses, claims, damages, liabilities and settlement amounts
paid in connection with any claim, action, suit, proceeding or investigation
(whether arising before or after the Effective Time), whether civil,
criminal, administrative or investigative, arising out of or pertaining to
any action or omission in their capacity as a director or officer occurring
before the Effective Time. In the event of any such claim, action, suit,
proceeding or investigation (whether arising before or after the Effective
Time), (i) the Company or the Surviving Corporation, as the case may be,
shall pay the reasonable fees and expenses of counsel selected by the
Indemnified Parties, which counsel shall be reasonably satisfactory to the
Company or the
<PAGE>
Surviving Corporation, promptly after statements therefor are received and
(ii) the Company or the Surviving Corporation, as the case may be, shall
cooperate in the defense of any such matter; PROVIDED, HOWEVER, that neither
the Company nor the Surviving Corporation shall be liable for any settlement
effected without its written consent (which consent shall not be unreasonably
withheld); and PROVIDED FURTHER that neither the Company nor the Surviving
Corporation shall be obligated pursuant to this Section 5.05(d) to pay the
fees and expenses of more than one counsel (and one local counsel) for all
Indemnified Parties in any single action except to the extent that two or
more of such Indemnified Parties shall have conflicting interests in the
outcome of such action.
(e) The provisions of this Section 5.05 are intended to be for the
benefit of, and will be enforceable by, each indemnified party, his or her
heirs and his or her representatives.
SECTION 5.06. FEES AND EXPENSES. (a) Except as set forth in
Section 5.06(c), all fees and expenses incurred in connection with this
Agreement, the Offer, the Merger and the other transactions contemplated by
this Agreement shall be paid by the party incurring such fees or expenses,
whether or not the Merger is consummated.
(b) In the event that (i) (A) a Takeover Proposal shall have been
publicly proposed or publicly announced or any person has publicly announced
an intention (whether or not conditional and whether or not withdrawn) to
make a Takeover Proposal, (B) thereafter this Agreement is terminated by
either Rexam or the Company pursuant to Section 7.01(b)(i) and (C) within 12
months after such termination, the Company or any of its subsidiaries enters
into any Acquisition Agreement with respect to, or consummates, any Takeover
Proposal, (ii)(A) this Agreement is terminated by Rexam pursuant to Section
7.01(c)(2) and (B) within 12 months after such termination, the Company or
any of its subsidiaries enters into any Acquisition Agreement with respect
to, or consummates, any Takeover Proposal, or (iii) this Agreement is
terminated by Rexam pursuant to Section 7.01(c)(1) or by the Company pursuant
to Section 7.01(f), then the Company shall pay Rexam a fee equal to
$35,000,000 (the "TERMINATION FEE") by wire transfer of same day funds to an
account designated by Rexam
<PAGE>
in the case of a payment as a result of any event referred to in Section
5.06(b)(i)(C) or 5.06 (b)(ii)(B), upon the first to occur of such events and
in the case of a payment as a result of any event referred to in Section
5.06(b)(iii), promptly, but in no event later than the date of such
termination. For purposes of Sections 5.06(b)(i)(C) and 5.06(b)(ii)(B), a
"Takeover Proposal" shall have the meaning assigned to such term in Section
4.02(b), except that references to "15%" in such definition shall be deemed
to be references to "50%". The parties acknowledge that the agreements
contained in this Section 5.06(b) and in Sections 5.06(c) and (d) are an
integral part of the transactions contemplated by this Agreement, and that,
without these agreements, the parties would not enter into this Agreement;
accordingly, if the party that is required to pay (the "PAYING PARTY") fails
promptly to pay the amounts due pursuant to this Section 5.06(b) or Sections
5.06(c) or (d), as applicable, and, in order to obtain such payment, the
other party commences a suit that results in a judgment against the Paying
Party for the amounts set forth in this Section 5.06(b) or Sections 5.06(c)
or (d), as applicable, the Paying Party shall pay to the other party interest
on the amounts set forth in this Section 5.06(b) or Sections 5.06(c) or (d),
as applicable, at the prime rate of Citibank, N.A. in effect on the date such
payment was required to be made.
(c) The Company shall reimburse Rexam and Sub for all their
expenses incurred in connection with this Agreement, the Offer, the Merger
and the other transactions contemplated by this Agreement (i) in the event
this Agreement is terminated in the circumstances described in Section
5.06(b)(i) or 5.06(b)(ii), upon the first to occur of the events referred to
in Section 5.06(b)(i)(C) or 5.06(b)(ii)(B), as applicable, or (ii) in the
event this Agreement is terminated in the circumstances described in Section
5.06(b)(iii), promptly, but in no event later than the date of such
termination; PROVIDED that the aggregate amount of such reimbursement
together with the Termination Fee shall not exceed $50,000,000 in the
aggregate. All payments made pursuant to this Section 5.06(c) shall be made
by wire transfer of same day funds to an account designated by Rexam.
(d) Rexam shall pay $15,000,000 to the Company (i) in the event
this Agreement is terminated by Rexam pursuant to Section 7.01(b)(iii),
promptly, but in no event later than the date of such termination, or (ii) in
the
<PAGE>
event this Agreement is terminated by the Company pursuant to either Section
7.01(b)(iii) or 7.01(e)(ii), within two business days after such termination,
so long as, in either case, the Company is not in breach of any of its
representations, warranties or covenants contained in this Agreement, which
breach would give rise to a failure of a condition set forth in paragraph (d)
or (e) of Exhibit A. All payments made pursuant to this Section 5.06(d) shall
be made by wire transfer in immediately available funds to an account
designated by the Company.
SECTION 5.07. INFORMATION SUPPLIED. (a) The Company agrees that
none of the information included or incorporated by reference in (i) the
Offer Documents or the Schedule 14D-9 or any information statement to be
filed by the Company in connection with the Offer pursuant to Rule 14f-1
under the Exchange Act (the "INFORMATION STATEMENT") will, at the time it is
filed with the SEC or first published, sent or given to the Company's
stockholders, or at the time of any amendment or supplement thereof, or (ii)
the Proxy Statement will, at the date it is filed with the SEC or mailed to
the Company's stockholders, at the time of the Company Stockholders Meeting
or at the time of any amendment or supplement thereof, in each case, contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading, except that no covenant is made by the Company with respect to
statements made in the Proxy Statement, the Offer Documents, the Schedule
14D-9 or the Information Statement based on information supplied by Rexam or
Sub specifically for inclusion or incorporation by reference therein. The
Proxy Statement, Offer Documents, the Schedule 14D-9 and the Information
Statement will comply as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations promulgated
thereunder.
(b) Rexam and Sub agree that none of the information supplied or
to be supplied by Rexam or Sub specifically for inclusion in the Proxy
Statement, the Offer Documents, the Schedule 14D-9 or the Information
Statement will (except to the extent revised or superseded by amendments or
supplements contemplated hereby), at the date (i) the Offer Documents or the
Information Statement is
<PAGE>
filed with the SEC or first published, sent or given to the Company
stockholders or (ii) the Proxy Statement is filed with the SEC or mailed to
the Company's stockholders or at the time of the Company Stockholders
Meeting, in each case, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under
which they are made, not misleading.
(c) The Company agrees that none of the information supplied by it
to Rexam specifically for inclusion in the Circular will, at the date it is
filed with the London Stock Exchange or mailed to the Rexam's shareholders,
at the time of the Rexam Shareholders Meeting or at the time of any amendment
or supplement thereof, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under
which they are made, not misleading, except that no covenant is made by the
Company with respect to statements made in the Circular based on information
supplied by Rexam or Sub specifically for inclusion or incorporation by
reference therein.
(d) Rexam and Sub agree that none of the information supplied or
to be supplied by Rexam or Sub specifically for inclusion in the Circular
will (except to the extent revised or superseded by amendments or supplements
contemplated hereby), at the date the Circular is filed with the London Stock
Exchange or mailed to the Rexam's shareholders or at the time of the Rexam
Shareholders Meeting, contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under
which they are made, not misleading.
SECTION 5.08. BENEFITS MATTERS. (a) From and after the
Specified Date, Rexam shall, and shall cause the Surviving Corporation to,
honor in accordance with their respective terms the Company Benefit Plans,
Company Benefit Agreements and all of the Company's other employee benefit,
compensation, employment, severance and termination agreements, plans and
policies, including any rights or benefits arising as a result of the
transactions contemplated by this Agreement (either alone or in combination
with any other event); it being agreed and acknowledged by Rexam that the
transactions contemplated by
<PAGE>
this Agreement constitute a "change of control" for all purposes under all
such agreements, plans and policies.
(b) For all purposes under the employee benefit plans of Rexam and
its affiliates providing benefits to any current employees of the Company or
any of its subsidiaries (the "COMPANY EMPLOYEES") after the Effective Time,
each Company Employee shall be credited with his or her years of service with
the Company and its affiliates (and any predecessor entities thereof) before
the Effective Time, to the same extent as such Company Employee was entitled,
before the Effective Time (or if earlier, the Specified Date), to credit for
such service under any similar Company Benefit Plans, except for purposes of
benefit accrual under defined benefit pension plans to the extent giving such
credit would result in a duplication of accrued benefits in respect of the
same period of service. Rexam will, or will cause its subsidiaries to
provide each Company Employee with credit for any co-payments and deductibles
incurred prior to the Effective Time (or such earlier or later transition
date to new welfare benefits plans) for the calendar year in which the
Effective Time (or such earlier or later transition date) occurs, in
satisfying any applicable deductible or out-of-pocket requirements under any
welfare plans that the Company Employees are eligible to participate in after
the Effective Time.
(c) Rexam agrees that, during the period from the Specified Date
until December 31, 2001 (the "CONTINUATION PERIOD"), the Company Employees
shall continue to be provided with benefits under employee benefit plans that
are no less favorable in the aggregate to those provided to such employees by
the Company and its subsidiaries immediately prior to the Specified Date
(other than equity or equity-based programs). Notwithstanding anything to
the contrary contained herein, during the Continuation Period , Rexam shall,
or shall cause the Surviving Corporation to, honor and continue the Company's
severance plans including the severance benefits plan enhancements thereto as
in effect on the date hereof, without amendment or modification.
(d) At the Effective Time, Rexam and the Company will establish a
retention bonus pool in the amount of approximately $13,000,000 to be
allocated and paid as set forth on Section 5.08(d) of the Company Disclosure
Schedule.
<PAGE>
(e) Nothing contained in this Section 5.08 or elsewhere in this
Agreement shall be construed to prevent the termination of employment of any
individual Company Employee or, subject to the limitations of Sections
5.08(a), (b), (c) and (d), any change in the employee benefits available to
any individual Company Employee or the amendment or termination of any
particular Company Benefit Plan, Company Benefit Agreement or other employee
benefit plan, program, policy or arrangement to the extent permitted by its
terms as in effect immediately prior to the Specified Date.
SECTION 5.09. OPTION TO PURCHASE IDENTIFIED ASSETS. At Rexam's
option, Rexam or one or more of its subsidiaries may purchase immediately
preceding the purchase of shares of the Company Common Stock pursuant to the
Offer, at or prior to which time the Minimum Tender Condition shall have been
satisfied, all other conditions of the Offer shall be deemed satisfied or
waived and Rexam shall have unconditionally committed to close the Offer, any
of the assets of the Company or its subsidiaries; PROVIDED that the
completion of the Offer shall be a condition subsequent to any such purchase.
To exercise this option, Rexam must notify the Company in writing and such
notification will identify the assets to be purchased. Rexam or its
affiliates will purchase the assets by providing to the person transferring
the assets consideration equal to the purchased asset's mutually agreed fair
market value. Such consideration may take the form of cash, notes,
securities, assumption of liabilities or such other forms as determined in
Rexam's sole discretion.
SECTION 5.10. PUBLIC ANNOUNCEMENTS. Rexam and Sub, on the one
hand, and the Company, on the other hand, shall, to the extent reasonably
practicable, consult with each other before issuing, and give each other a
reasonable opportunity to review and comment upon, any press release or other
public statements with respect to this Agreement, the Offer, the Merger and
the other transactions contemplated by this Agreement. The parties agree
that the initial press release to be issued with respect to the transactions
contemplated by this Agreement shall be in the form heretofore agreed to by
the parties.
SECTION 5.11. STOCKHOLDER AGREEMENT LEGEND. The Company will
inscribe upon any certificate representing Subject Shares (as defined in the
Stockholders Agreement) that are submitted to the Company for such purpose the
<PAGE>
following legend: "THE SHARES OF COMMON STOCK, PAR VALUE $0.01 PER SHARE, OF
THE COMPANY, REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A STOCKHOLDER
AGREEMENT DATED AS OF MARCH 31, 2000, AND THE TRANSFER AND VOTING THEREOF ARE
SUBJECT TO THE TERMS OF SUCH AGREEMENT. COPIES OF SUCH AGREEMENT MAY BE
OBTAINED AT THE PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY."; and the Company
will return such certificate containing such inscription to the Specified
Stockholder within three business days following the Company's receipt
thereof.
SECTION 5.12. DIRECTORS. (a) Promptly upon the acceptance for
payment of, and payment by Sub for, any shares of Company Common Stock
pursuant to the Offer, Sub shall be entitled to designate such number of
directors on the Board of Directors of the Company as will give Sub, subject
to compliance with Section 14(f) of the Exchange Act, representation on the
Board of Directors of the Company equal to that number of directors, rounded
up to the next whole number, which is the product of (a) the total number of
directors on the Board of Directors of the Company (giving effect to the
directors elected pursuant to this sentence) multiplied by (b) the percentage
that (i) such number of shares of Company Common Stock so accepted for
payment and paid for by Sub bears to (ii) the number of such shares
outstanding, and the Company shall, at such time, cause Sub's designees to be
so elected; PROVIDED, HOWEVER, that in the event that Sub's designees are
appointed or elected to the Board of Directors of the Company, until the
Effective Time the Board of Directors of the Company shall have at least
three directors who are Directors on the date of this Agreement and who are
not officers of the Company or representatives of any affiliates of the
Company (the "INDEPENDENT DIRECTORS"); and PROVIDED FURTHER that, in such
event, if the number of Independent Directors shall be reduced below three
for any reason whatsoever, any remaining Independent Directors (or
Independent Director, if there shall be only one remaining) shall be entitled
to designate persons to fill such vacancies who shall be deemed to be
Independent Directors for purposes of this Agreement or, if no Independent
Directors then remain, the other directors shall designate three persons to
fill such vacancies who are not officers, stockholders or affiliates of the
Company, Rexam or Sub, and such persons shall be deemed to be Independent
Directors for purposes of this Agreement. Subject to applicable law, the
Company shall take all action requested by Rexam necessary to effect any such
election, including mailing to its stockholders the Information Statement
containing the information required by
<PAGE>
Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, and
the Company shall make such mailing with the mailing of the Schedule 14D-9
(provided that Sub shall have provided to the Company on a timely basis all
information required to be included in the Information Statement with respect
to Sub's designees). In connection with the foregoing, the Company shall
promptly, at the option of Sub, either increase the size of the Board of
Directors of the Company or obtain the resignation of such number of its
current directors as is necessary to enable Sub's designees to be elected or
appointed to the Board of Directors of the Company as provided above.
(b) Prior to the Effective Time, the Company shall cause each
member of its Board of Directors, other than Sub's designees, to execute and
deliver a letter effectuating his or her resignation as a director of such
Board of Directors effective immediately prior to the Effective Time.
ARTICLE VI
CONDITIONS PRECEDENT
SECTION 6.01. CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE
MERGER. The obligation of each party to effect the Merger is subject to the
satisfaction or waiver on or prior to the Closing Date of the following
conditions:
(a) STOCKHOLDER APPROVAL. The Company Stockholder Approval, if
required by applicable law, and the Rexam Shareholder Approval shall have
been obtained.
(b) ANTITRUST. (i) Any requisite waiting period (and any extension
thereof) applicable to the Merger under the HSR Act and any other
applicable competition, merger, control, antitrust or similar law or
regulation shall have been terminated or shall have expired and (ii) the EC
Commission shall have declared, in terms, taken together with those in
clause (iii)(B) below, that are not materially commercially unreasonable in
the aggregate, that the concentration is compatible with the common market
pursuant to Articles 6(1)(b) or
<PAGE>
Article 8(2) of Council Regulation (EEC) No. 4064/89 (as amended by Council
Regulation (EC) No. 1310/97) (the "REGULATION") and, (iii) in the event
that a request under Article 9(2) of the Regulation has been made by one or
more European Union or EFTA states, (A) the European Commission shall have
indicated that it does not intend to refer the proposed acquisition, or any
aspect thereof, to a competent authority of such state in accordance with
Article 9 of the Regulation or (B) if such referral is made, the state(s)
shall have resolved their investigations, in terms, taken together with
those in clause (ii) above, that are not materially commercially
unreasonable in the aggregate, or any applicable waiting period(s) shall
have expired.
(c) NO INJUNCTIONS OR LEGAL RESTRAINTS. No temporary restraining
order, preliminary or permanent injunction or other order or decree issued
by any court of competent jurisdiction or other legal restraint or
prohibition (collectively, "LEGAL RESTRAINTS") that has the effect of
preventing the consummation of the Merger shall be in effect; PROVIDED,
HOWEVER, that each of the parties shall have used commercially reasonable
efforts to prevent the entry of any such injunction or other order and to
appeal as promptly as practicable any injunction or other order that may be
entered.
(d) PURCHASE OF SHARES IN THE OFFER. Sub shall have previously
accepted for payment and paid for the shares of Company Common Stock
pursuant to the Offer.
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
SECTION 7.01. TERMINATION. This Agreement may be terminated, and
the Offer and the Merger contemplated hereby may be abandoned, at any time
prior to the Effective Time, whether before or after the Company Stockholder
Approval or Rexam Shareholder Approval has been obtained:
(a) by mutual written consent of Rexam, Sub and the Company;
(b) by either Rexam or the Company:
(i) if Sub shall not have accepted for payment any shares of
Company Common Stock
<PAGE>
pursuant to the Offer prior to October 25, 2000; PROVIDED that the
right to terminate this Agreement pursuant to this Section 7.01(b)(i)
shall not be available to any party whose breach of Agreement has been
a principal reason the Offer has not been consummated by such date;
(ii) if any Governmental Entity shall have issued an order,
injunction or other decree or ruling or taken any other action
permanently enjoining, restraining or otherwise prohibiting the
acceptance for payment of, or payment for the Company Common Stock
pursuant to the Offer or the Merger and such order, injunction, decree
or ruling or other action shall have become final and nonappealable;
or
(iii) if the Rexam Shareholder Approval shall not have been
obtained at the Rexam Shareholders Meeting duly convened therefor or
at any adjournment or postponement thereof;
(c) by Rexam (1) if the Board of Directors of the Company or any
committee thereof shall have (i) withdrawn or modified the recommendation
of such Board of Directors of this Agreement, the Offer or the Merger or
(ii) failed to confirm its recommendation to the Company's stockholders
that they accept the Offer and give the Company Stockholder Approval within
four business days after a written request by Rexam that it do so if such
request is made following the making of a Takeover Proposal, PROVIDED that
Rexam may not make more than one such request in respect of a Takeover
Proposal unless such proposal has been materially modified or (2) if
another person, other than the Specified Stockholder, shall have acquired
more than 15% of the outstanding shares of Company Common Stock;
(d) prior to the Specified Date by Rexam (i) if the Company shall
have breached any of its representations, warranties or covenants contained
in this Agreement, which breach would give rise to the failure of a
condition set forth in paragraph (d) or (e) of Exhibit A which breach has
not been or is incapable of being cured by the Company within 20 business
days after its receipt of written notice
<PAGE>
thereof from Rexam, or (ii) if any suit, action or proceeding set forth in
paragraph (a) of Exhibit A shall have prevailed and become final and
nonappealable;
(e) prior to the Specified Date by the Company (i) if any of Rexam's
representations and warranties contained in this Agreement shall not be
true and correct, except for such failures to be true and correct that
(without giving effect to any limitation as to "materiality" set forth
therein), individually or in the aggregate, would not reasonably be
expected to have a Rexam material adverse effect, which failure has not
been or is incapable of being cured by Rexam within 20 business days after
its receipt of written notice thereof from the Company, or (ii) if the
Board of Directors of Rexam or any committee thereof shall have withdrawn
or modified the recommendation of such Board of Directors of this
Agreement, the Offer or the Merger; or
(f) prior to the Specified Date by the Company in accordance with
Section 4.02(b) subject to compliance by the Company with the notice
provisions therein and the Termination Fee and expense reimbursement
provisions of Section 5.06.
SECTION 7.02. EFFECT OF TERMINATION. In the event of termination
of this Agreement by either the Company or Rexam as provided in Section 7.01,
this Agreement shall forthwith become void and have no effect, without any
liability or obligation on the part of Rexam, Sub or the Company, other than
the provisions of Section 3.01(q), the last sentence of Section 5.02, Section
5.06, this Section 7.02 and Article VIII; PROVIDED that no such termination
shall relieve any party hereto from any liability or damages resulting from a
wilful breach by a party of any of its representations, warranties or
covenants set forth in this Agreement.
SECTION 7.03. AMENDMENT. This Agreement may be amended by the
parties hereto at any time, whether before or after the Company Stockholder
Approval or the Rexam Shareholder Approval has been obtained; PROVIDED that,
after the purchase of shares of Company Common Stock pursuant to the Offer,
no amendment shall be made which decreases the Merger Consideration and,
after the Company Stockholder Approval or the Rexam Shareholder Approval has
been obtained, there shall be made no amendment that by law
<PAGE>
requires further approval by stockholders or shareholders of the parties
without the further approval of such stockholders or shareholders. This
Agreement may not be amended except by an instrument in writing signed on
behalf of each of the parties hereto. Following the election or appointment
of Sub's designees pursuant to Section 5.12 and prior to the Effective Time,
the affirmative vote of a majority of the Independent Directors then in
office shall be required by the Company to (i) amend or terminate this
Agreement by the Company, (ii) exercise or waive any of the Company's rights
or remedies under this Agreement or (iii) extend the time for performance of
Rexam and Sub's respective obligations under this Agreement.
SECTION 7.04. EXTENSION; WAIVER. At any time prior to the
Effective Time, the parties may (a) extend the time for the performance of
any of the obligations or other acts of the other parties, (b) waive any
inaccuracies in the representations and warranties contained herein or in any
document delivered pursuant hereto or (c) waive compliance with any of the
agreements or conditions contained herein; PROVIDED that after the Company
Stockholder Approval or the Rexam Shareholder Approval has been obtained,
there shall be made no waiver that by law requires further approval by
stockholders or shareholders of the parties without the further approval of
such stockholders or shareholders. Any agreement on the part of a party to
any such extension or waiver shall be valid only if set forth in an
instrument in writing signed on behalf of such party. The failure or delay by
any party to this Agreement to assert any of its rights under this Agreement
or otherwise shall not constitute a waiver of such rights nor shall any
single or partial exercise by any party to this Agreement of any of its
rights under this Agreement preclude any other or further exercise of such
rights or any other rights under this Agreement.
ARTICLE VIII
GENERAL PROVISIONS
SECTION 8.01. NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES. None
of the representations and warranties in this Agreement or in any instrument
delivered pursuant to this Agreement shall survive the Effective Time. This
<PAGE>
Section 8.01 shall not limit any covenant or agreement of the parties which
by its terms contemplates performance after the Effective Time.
SECTION 8.02. NOTICES. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be deemed given
if delivered personally or sent by overnight courier (providing proof of
delivery) to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice):
if to Rexam or Sub, to:
Rexam PLC
4 Millbank
London, SW1P 3XR
United Kingdom
Attention: David Gibson, Esq.
with a copy to:
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019
Attention: Robert I. Townsend, III, Esq.
Faiza J. Saeed, Esq.
and
Allen & Overy
One New Change
London, EC4M9QQ
United Kingdom
Attention: Mark Wippell, Esq.
if to the Company, to:
American National Can Group, Inc.
8770 West Bryn Mawr Avenue
Chicago, IL 10631
Attention: William A. Francois, Esq.
with a copy to:
<PAGE>
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, NY 10019
Attention: Barry A. Bryer, Esq.
Gavin D. Solotar, Esq.
SECTION 8.03. DEFINITIONS. For purposes of this Agreement:
(a) an "AFFILIATE" of any person means another person that directly or
indirectly, through one or more intermediaries, controls, is controlled by,
or is under common control with, such first person;
(b) "MATERIAL ADVERSE EFFECT" means any state of facts, change,
development, effect, event, condition or occurrence that is materially
adverse to the business, assets, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole, other
than adverse changes resulting from conditions, circumstances or changes
affecting the beverage packaging industry in general and not the Company
specifically;
(c) "PERSON" means an individual, corporation, partnership, joint
venture, association, trust, limited liability company, Governmental
Entity, unincorporated organization or other entity;
(d) "REXAM MATERIAL ADVERSE EFFECT" means any state of facts, change,
development, effect, event, condition or occurrence that is materially
adverse to the business, assets, financial condition or results of
operations of Rexam and its subsidiaries, taken as a whole, other than
adverse changes resulting from conditions, circumstances or changes
affecting the beverage packaging industry in general and not Rexam
specifically, or, with respect to Section 3.02(d), that prevents or
materially impedes or delays the consummation of the Offer, the Merger or
the other transactions contemplated by this Agreement.
(e) "SIGNIFICANT SUBSIDIARY" shall have the meaning set forth in
Rule 1-02 of Regulation S-X of the Exchange Act; and
<PAGE>
(f) a "SUBSIDIARY" of any person means another person, an amount of
the voting securities, other voting ownership or voting partnership
interests of which is sufficient to elect at least a majority of its Board
of Directors or other governing body (or, if there are no such voting
interests, 50% or more of the equity interests of which) is owned directly
or indirectly by such first person.
SECTION 8.04. INTERPRETATION. When a reference is made in this
Agreement to a Section, Subsection or Schedule, such reference shall be to a
Section or Subsection of, or a Schedule to, this Agreement unless otherwise
indicated. The table of contents and 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.
SECTION 8.05. COUNTERPARTS. 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 and delivered to the other parties.
SECTION 8.06. ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This
Agreement (a) constitutes the entire agreement, and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter of this Agreement, other than the Confidentiality
Agreement and (b) except for the provisions of Sections 5.04, 5.05 and 5.08(d)
and the schedule thereto, is not intended to confer upon any person
<PAGE>
other than the parties hereto (and their respective successors and assigns)
any rights or remedies.
SECTION 8.07. GOVERNING LAW. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Delaware,
regardless of the laws that might otherwise govern under applicable
principles of conflicts of laws thereof.
SECTION 8.08. ASSIGNMENT. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned, in whole or in
part, except by operation of law, by any of the parties hereto without the
prior written consent of the other parties hereto, except that Sub may
assign, in its sole discretion, any of or all its rights, interests and
obligations under this Agreement to Rexam or to any direct or indirect wholly
owned subsidiary of Rexam, but no such assignment shall relieve Sub of any of
its obligations hereunder. Subject to the preceding sentence, 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 8.09. 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 parties 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 and (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.
SECTION 8.10. SEVERABILITY. If any term or other provision of
this Agreement is invalid, illegal or incapable
<PAGE>
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 to the end that the transactions
contemplated hereby are fulfilled to the extent possible.
<PAGE>
IN WITNESS WHEREOF, Rexam, Sub and the Company have caused this
Agreement to be signed by their respective officers thereunto duly
authorized, all as of the date first written above.
REXAM PLC,
by /s/ ROLF BORJESSON
Name: Rolf Borjesson
Title: Chief Executive
REXAM ACQUISITION SUBSIDIARY INC.,
by /s/ FRANK C. BROWN
Name: Frank C. Brown
Title: President
AMERICAN NATIONAL CAN GROUP, INC.,
by /s/ EDWARD LAPEKAS
Name: Edward Lapekas
Title: Chairman and Chief Executive Officer
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EXHIBIT A
CONDITIONS OF THE OFFER
Notwithstanding any other term of the Offer or this Agreement, Sub
shall not be required to accept for payment or, subject to any applicable
rules and regulations of the SEC, including Rule 14e-l(c) under the Exchange
Act (relating to Sub's obligation to pay for or return tendered shares of
Company Common Stock promptly after the termination or withdrawal of the
Offer), to pay for any shares of Company Common Stock tendered pursuant to
the Offer unless (i) there shall have been validly tendered and not withdrawn
prior to the expiration of the Offer that number of shares of Company Common
Stock which would represent at least a majority of the outstanding Company
Common Stock (determined on a fully diluted basis for all outstanding stock
options and any other rights to acquire Company Common Stock on the date of
purchase), (the "MINIMUM TENDER CONDITION"), (ii) any requisite waiting
period under the HSR Act (and any extension thereof) applicable to the
purchase of shares of Company Common Stock pursuant to the Offer or to the
Merger, (iii) any other requisite waiting periods under any other applicable
material competition, merger, control, antitrust or similar law or regulation
shall have been terminated or shall have expired, (iv) the EC Commission
shall have declared, in terms, taken together with those in clause (v)(B)
below, that are not materially commercially unreasonable in the aggregate,
that the concentration is compatible with the common market pursuant to
Articles 6(1)(b) or Article 8(2) of the Regulation, (v) in the event that a
request under Article 9(2) of the Regulation has been made by one or more
European Union or EFTA states, (A) the European Commission shall have
indicated that it does not intend to refer the proposed acquisition, or any
aspect thereof, to a competent authority of such state in accordance with
Article 9 of the Regulation or (B) if such referral is made, the state(s)
shall have resolved their investigations, in terms, taken together with those
in clause (iv) above, that are not materially commercially unreasonable in
the aggregate, or any applicable waiting period(s) shall have expired, and
(vi) the Rexam Shareholder Approval shall have been obtained. Furthermore,
notwithstanding any other term of the Offer or this Agreement, Sub shall not
be required to accept for payment or, subject as aforesaid, to pay for any
shares of Company Common Stock not theretofore accepted for payment or paid
for, and, subject to this Agreement, may terminate or amend the Offer, with
the consent of the
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Company or if, immediately prior to the applicable expiration of the Offer,
any of the following conditions exists:
(a) there shall be pending or formally threatened any suit, action or
proceeding by any Governmental Entity, (i) challenging the acquisition by
Rexam or Sub of any shares of Company Common Stock, seeking to restrain or
prohibit consummation of the Offer or the Merger, or seeking to place
limitations on the ownership of shares of Company Common Stock (or shares
of common stock of the Surviving Corporation) by Rexam or Sub, (ii) seeking
to prohibit or limit the ownership or operation by the Company or Rexam and
their respective subsidiaries of any material portion of the business or
assets of the Company or Rexam and their respective subsidiaries taken as a
whole, or to compel the Company or Rexam and their respective subsidiaries
to dispose of or hold separate any material portion of the business or
assets of the Company or Rexam and their respective subsidiaries taken as a
whole, as a result of the Offer, the Merger or any of the other
transactions contemplated by this Agreement or the Stockholders Agreement,
(iii) seeking to prohibit Rexam or any of its subsidiaries from effectively
controlling in any material respect the business or operations of the
Company or Rexam and subsidiaries taken as a whole, or (iv) which otherwise
is reasonably expected to have a material adverse effect; in each of
(i) through (iv) above, subject to the obligations set forth in
Section 5.03 of this Agreement;
(b) any Legal Restraint that has the effect of preventing the purchase
of shares of Company Common Stock pursuant to the Offer or the Merger shall
be in effect; PROVIDED, HOWEVER, that each of the parties shall have used
commercially reasonable efforts to prevent the entry of any such injunction
or other order and to appeal as promptly as practicable any injunction or
other order that may be entered;
(c) except as set forth in the Company Disclosure Schedule or in the
Filed SEC Documents, since the date of this Agreement, there shall have
been any state of facts, change, development, effect, event, condition or
occurrence that, individually or in the aggregate,
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constitutes or would reasonably be expected to have, a material adverse
effect;
(d) the representation and warranty of the Company contained in
Section 3.01(c) of this Agreement shall not be true and correct in all
material respects, or the other representations and warranties of the
Company contained in this Agreement shall not be true and correct, except
for such failures to be true and correct that (without giving effect to any
limitation as to "materiality" or material adverse effect set forth
therein), individually and in the aggregate, would not reasonably be
expected to have a material adverse effect;
(e) the Company shall have failed to perform in any material respect
any material obligation required to be performed by it under this Agreement
at or prior to the Specified Date;
(f) Rexam shall not have obtained all consents, approvals,
authorizations, qualifications and orders of all Governmental Entities
legally required in connection with this Agreement and the transactions
contemplated by this Agreement other than any such consents, approvals,
authorizations, qualifications and orders, the failure of which to obtain,
individually and in the aggregate, would not reasonably be expected to have
a material adverse effect; or
(g) this Agreement shall have been terminated in accordance with its
terms,
which, in the reasonable judgment of Sub or Rexam, in any such case, and
regardless of the circumstances giving rise to any such condition (including
any action or inaction by Rexam or any of its affiliates), makes it
inadvisable to proceed with such acceptance for payment or payment.
The foregoing conditions are for the sole benefit of Sub and Rexam
and may be asserted by Sub or Rexam regardless of the circumstances giving
rise to such condition or may be waived by Sub and Rexam in whole or in part
at any time and from time to time in their reasonable discretion. The
failure by Rexam, Sub or any other affiliate of Rexam at any time to exercise
any of the foregoing rights shall not be deemed a waiver of any such right;
the waiver of any such right with respect to particular facts and
circumstances shall not be deemed a
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waiver with respect to any other facts and circumstances and each such right
shall be deemed an ongoing right that may be asserted at any time and from
time to time.
The terms in this Exhibit A that are defined in the attached merger
agreement have the meanings set forth therein.
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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
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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
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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
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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
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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
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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
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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.
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(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
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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
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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
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(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
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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, 599 Lexington Avenue, New York, New York 10022, facsimile: 212-
848-7179, attention: David W. Heleniak, 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
<PAGE>
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
<PAGE>
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 8770 W. Bryn Mawr Avenue, Chicago, IL 60631, 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.
<PAGE>
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/ ROLF BORJESSON
-----------------------------------
Name: Rolf Borjesson
Title: Chief Executive
STOCKHOLDER:
PECHINEY
by /s/ JEAN-PIERRE RODIER
-----------------------------------
Name: Jean-Pierre Rodier
Title: Chairman of the Board and
Chief Executive Officer
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
Number of Number of
Name and Original Original
Address of Shares Owned Shares Owned
Stockholder of Record Beneficially
----------- --------- ------------
<S> <C> <C>
Pechiney 25,000,000 25,000,000
7 place du
Chancelier
Adenauer
75218 Paris
cedex 16
France
Facsimile:
(33-1) 56282000
Attention:
Antoine Bied-
Charreton
</TABLE>
<PAGE>
EXHIBIT (d)(3)
AMERICAN NATIONAL CAN GROUP, INC.
8770 West Bryn Mawr Avenue
Chicago, Illinois 80631
PERSONAL AND CONFIDENTIAL
March 10, 2000
Rexam plc
Bowater House
114 Knightsbridge
London, SW1X 7NN
England
Ladies and Gentlemen:
In connection with your consideration of a possible transaction with American
National Can Group, Inc. (the "Company"), you have requested information
concerning the Company. As a condition to your being furnished such information,
you agree to treat any information concerning the Company (whether prepared by
the Company, its advisors or otherwise) which is furnished to you by or on
behalf of the Company and any materials reflecting information contained therein
or derived therefrom (herein collectively referred to as the "Evaluation
Material") in accordance with the provisions of this letter and to take or
abstain from taking certain other actions herein set forth. The term "Evaluation
Material" does not include information which (1) is already in your possession,
provided that such information is not reasonably believed by you to be subject
to another confidentiality agreement with or other obligation of secrecy to the
Company or another party, or (2) is or becomes generally available to the public
other than as a result of a disclosure by you or your Representatives (as
defined below), (3) is or becomes available to you on a non-confidential basis
from a source other than the Company or its Representatives, provided that such
source is not reasonably believed by you to be bound by a confidentiality
agreement with or other obligation of secrecy to the Company or another party or
(4) has been independently developed by you or your Representatives without
violating any of your obligations under this letter.
<PAGE>
March 10, 2000
You hereby agree that the Evaluation Material will be used solely for the
purpose of evaluating a possible transaction between the Company and you, and
that, subject to the eighth paragraph of this letter, such information will be
kept confidential by you and your Representatives and shall not be disclosed to
any other person; provided, however, that (1) any of such information may be
disclosed to your directors, officers, employees or advisors (your
"Representatives") or potential financing sources who need to know such
information for the purpose of evaluating any such possible transaction between
the Company and you (it being understood that such Representatives shall be
informed by you of the confidential nature of such information and shall be
directed by you to treat such information confidentially in accordance with the
terms of this letter agreement and that such financing sources shall be required
to sign a confidentiality agreement with confidentiality provisions at least as
protective of such information as this letter agreement), and (2) any disclosure
of such information may be made to which the Company consents in writing.
You hereby acknowledge that you are aware, and that you will advise such
Representatives who are informed as to the matters which are the subject of this
letter, that the United States securities laws prohibit any person who has
received from an issuer material, non-public information concerning the matters
which are the subject of this letter from purchasing or selling securities of
such issuer or from communicating such information to any other person under
circumstances in which it is reasonably foreseeable that such person is likely
to purchase or sell such securities.
In addition, subject to the eighth paragraph of this letter, without the prior
written consent of the Company, you will not, and will direct such
Representatives not to, disclose to any third party (other than potential
financing sources who have signed confidentiality agreements with
confidentiality provisions at least as protective as this letter agreement) the
fact that Evaluation Material has been provided to you, that you are considering
a transaction involving the Company, that discussions or negotiations are taking
place concerning a possible transaction between the Company and you or any of
the terms, conditions or other facts with respect to any such possible
transaction, including the status thereof.
You hereby acknowledge that the Evaluation Material is being furnished to you in
consideration of your agreement that you will not (1) propose to the Company or
any other person any acquisition, merger or other business combination or
similar transaction between you and the Company and/or its security holders or
involving the Company or any of its securities or security holders or (2)
solicit or participate in, or make any public announcement regarding any
solicitation, or encourage or assist any person with respect to any consent,
proxy or vote involving the Company, its securities or security holders or (3)
acquire, propose to acquire, or
<PAGE>
March 10, 2000
assist, advise or encourage any other persons in acquiring, directly or
indirectly, control of the Company or any of the Company's securities,
businesses or assets or (4) request the Company or any of its officers or
directors to waive, amend or terminate the provisions of this paragraph; in each
case for a period of one year from the date of this letter unless the Company
shall have requested in writing that you take such action.
Notwithstanding the foregoing, if any person or group other than you either
publicly or in a communication to the Company or its Board of Directors makes
(a) a tender or exchange offer or other bona fide offer to acquire directly or
indirectly common stock of the Company under circumstances such that,
immediately after such acquisition, such person or group would beneficially own
more than 50% of the outstanding common stock of the Company or (b) a proposal
or offer for a merger, consolidation or other business combination directly or
indirectly involving the Company or a proposal or offer to acquire directly or
indirectly all or any substantial portion of the assets of the Company (any
proposal or offer referred to in clauses (a) or (b) being herein called a
"Business Combination Proposal"), which Business Combination Proposal is either
(X) not withdrawn or terminated within five days after such Business Combination
Proposal is made or (Y) accepted by the Board of Directors of the Company, the
restrictions set forth in the preceding sentence shall not be deemed to preclude
you or any of your affiliates from making a Business Combination Proposal on
terms and conditions at least as favorable to the Company as those offered by
the third party with consideration of greater value per share than offered by
such third party; PROVIDED that the restrictions set forth in the preceding
sentence shall again be applicable in accordance with their terms upon the
withdrawal or termination of the original Business Combination Proposal or the
rejection thereof by the Board of Directors of the Company, except to the extent
you have previously announced a Business Combination Proposal as permitted by
this sentence. This paragraph shall terminate at such time as the Company shall
have entered into a definitive agreement with respect to a Business Combination
Proposal with a party other than you.
For a period of eighteen months from the date hereof, you agree that, without
the prior written consent of the Company, you will not directly or indirectly
solicit for hire any current employee of the Company to whom you have been
introduced after the date hereof as a result of the process contemplated by this
letter agreement; PROVIDED, HOWEVER, that, without limitation,the foregoing
shall not apply to (i) any such employee who was terminated by the Company prior
to the commencement of any such solicitation, or (ii) generalized searches for
employees by use of advertisements in the media which are not targeted at
employees of the Company.
In the event you are requested in a judicial, administrative or governmental
proceeding to
<PAGE>
March 10, 2000
disclose any of the Evaluation Material, or, in the opinion of your counsel,
such disclosure is required by the rules of the primary stock exchange on which
your securities are listed or traded to avoid a violation thereof, you will
promptly so notify the Company so that the Company may seek a protective order
or other appropriate remedy and/or waive compliance with this letter agreement.
At the Company's sole expense and after a request by the Company, you will
cooperate with, and assist the Company in obtaining such protective order or
other remedy. If such protective order or other remedy is not obtained and
disclosure of any of the Evaluation Material is required by judicial or
administrative order or in order to avoid a violation of the rules of the
primary stock exchange on which your securities are listed or traded, you will
furnish only that portion of the Evaluation Material which is required to be
disclosed (in accordance with the above) and will exercise all reasonable
efforts, at the Company's sole expense, to obtain a protective order or other
reliable assurance that confidential treatment will be accorded the Evaluation
Material furnished.
You also agree that the Company shall be entitled to seek equitable relief,
including injunction, in the event of any breach of the provisions of this
paragraph.
Although the Company has endeavored to include in the Evaluation Material
information known to it which it believes to be relevant for the purpose of your
investigation, you understand that neither the Company nor any of its
Representatives have made or make any representation or warranty as to the
accuracy or completeness of the Evaluation Material. You agree that, except as
provided in a definitive agreement for a transaction between you and the
Company, neither the Company nor its Representatives shall have any liability to
you or any of your Representatives resulting from the use of the Evaluation
Material.
In the event that you do not proceed with the transaction which is the subject
of this letter within a reasonable time or if the Company so requests, you shall
promptly redeliver to the Company or destroy (with such destruction notified to
the Company) all written Evaluation Material (whether prepared by the Company,
its Representatives or otherwise) and will not retain any copies, extracts or
other reproductions in whole or in part of such written material. One copy of
the Evaluation Material returned to the Company by you shall be retained by the
Company's in-house or external attorneys for evidentiary purposes in the case of
a proceeding or threatened proceeding involving Evaluation Material or this
letter agreement. All oral Evaluation Material shall continue to be held
confidential under the terms of this letter agreement.
You agree that unless and until a definitive agreement between the Company and
you with respect to any transaction referred to in the first paragraph of this
letter has been executed and
<PAGE>
March 10, 2000
delivered, neither the Company nor you will be under any legal obligation of any
kind whatsoever with respect to such a transaction by virtue of this or any
written or oral expression with respect to such a transaction by any of its
Representatives except, in the case of this letter, for the matters specifically
agreed to herein. The agreement set forth in this paragraph may be modified or
waived only by a separate writing by the Company and you expressly so modifying
or waiving such agreement.
This letter agreement, and the rights and obligations of the parties hereunder,
shall terminate on the third anniversary of the date hereof.
<PAGE>
March 10, 2000
This letter shall be governed by, and construed in accordance with, the laws of
the State of Delaware, without giving effect to principles of conflict of laws.
Very truly yours,
AMERICAN NATIONAL CAN GROUP, INC.
By: /s/ William Francois
Confirmed and Agreed to:
REXAM PLC
By: /s/ David Gibson
