<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): SEPTEMBER 11, 1996
<TABLE>
<S> <C>
U.S. CAN CORPORATION UNITED STATES CAN COMPANY
(Exact name of registrant as specified in its (Exact named of registrant as specified in its
charter) charter)
DELAWARE DELAWARE
(State or other jurisdiction of incorporation) (State or other jurisdiction or incorporation)
0-21314 33-43734
(Commission File Number) (Commission File Number)
06-1094196 06-1145011
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
900 Commerce Drive 900 Commerce Drive
Oak Brook, Illinois 60521 Oak Brook, Illinois 60521
(Address of principal executive offices) (Address of principal executive offices)
(630) 571-2500 (630) 571-2500
(Registrant's telephone number, including (Registrant's telephone number, including
area code) area code)
Not Applicable Not Applicable
-------------- --------------
(Former name or former address, if changed (Former name or former address, if changed since
since last report.) last report.)
</TABLE>
(Explanatory Note: United States Can Company is not required by Section 13 or
15(d) of the Exchange Act to file reports thereunder, but has agreed, pursuant
to the Indenture under which its 13 1/2% Senior Subordinated Notes Due 2002
were issued, to file all reports required by Section 13 or 15(d) whether or not
required by law.)
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
On September 11, 1996, U.S. Can Corporation (the "Company") completed
the acquisition of certain aerosol can businesses owned by Crown Cork & Seal
Company, Inc. ("Crown") in the United Kingdom and Italy as well as the aerosol
can businesses owned by the Crown affiliate, CarnaudMetalbox S.A. in France,
Spain and Germany (collectively, "USC Europe"). The purchase price included
$52.8 million in cash and the assumption of net indebtedness totaling $5.8
million, subject to a post-closing adjustment for changes in working capital
between April 30 and September 11, 1996. The purchase price was established
through negotiations between the Company and Crown. This acquisition was
financed with borrowings under the acquisition facility provided as part of the
Company's bank credit facilities with Bank of America Illinois and the other
lenders included in the bank group.
Other than the transactions included in or contemplated by the
Acquisition Agreement, there are no material relationships between Crown and
the Company or the Company's affiliates, or any director or officer of the
Company, or any associate of any such director or officer. The transactions
included in or contemplated by the Acquisition Agreement include but are not
limited to transitional services, operation of the Italian aerosol business,
Crown's agreement not to compete, and general and environmental indemnification
provisions. Crown has agreed to provide the Company with certain transitional
services for six months following the closing including but not limited to
supplying finished components and cans to certain of the Company's UK
operations, supplying can ends to the Company's French and German operations,
supplying tinplate to USC Europe and coating and decorating tinplate for the
Company's French, German and Spanish operations. With respect to the Italian
business, Crown has agreed for a period of three months following the closing
to manage the production of aerosol cans and related sales and administrative
activities at Crown's Voghera site for the Company and supply, deliver and
invoice such cans to the customers of this business, remitting to the Company
the difference between the approximate cost of such services and the net
selling price. Crown has also agreed not to compete, directly or through its
subsidiaries, with the Company to supply the customers of USC Europe supplied
by Crown prior to the closing, for a period of one year following the closing,
except to the extent such customers already purchase aerosol cans from Crown or
its subsidiaries and except, with the approval of the Commission of the
European Communities, where the prospective customer declines in good faith to
purchase aerosol cans from the Company or its subsidiaries. Crown has also
agreed to indemnify the Company against certain losses incurred by the Company
arising out of breach of Crown's warranties and certain environmental matters,
subject to varying deductibles, baskets, caps and claim periods.
The Company intends to continue to use the assets of USC Europe in the
manufacture of steel aerosol cans. The foregoing description of the
acquisition is qualified in its entirety by reference to the Acquisition
Agreement filed as Exhibit 2.1 hereto and incorporated herein by this
reference.
2
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial statements of businesses acquired.
It is impracticable at this time to provide the financial
statements required by the instructions to Item 7 of this Form. These required
statements will be filed as soon as practicable. The Company is required to
file these statements no later than November 25, 1996; however, the Company
anticipates filing such statements no later than October 2, 1996.
(b) Pro forma financial information.
It is impracticable at this time to provide the pro forma financial
information required by the instructions to Item 7 of this Form. This required
information will be filed as soon as practicable. The Company is required to
file this information no later than November 25, 1996; however, the
Company anticipates filing such information no later than October 2, 1996. It
is currently contemplated that the pro forma financial information that will be
filed will give effect to the Company's acquisition of CPI Plastics, Inc., CP
Ohio, Inc., and CP Illinois, Inc. (collectively "CPI Group"), as well as its
acquisition of USC Europe, as if such acquisitions occurred at an earlier date.
The acquisition of CPI Group was completed on August 2, 1996, and was the
subject of a joint Current Report on Form 8-K filed by the Company and United
States Can Company on August 9, 1996. Pro forma and historical financial
information regarding the CPI Group is required to be filed no later than
October 16, 1996, as indicated in the August 9, 1996, Form 8-K filing;
however, the Company anticipates filing such information no later than October
2, 1996.
(c) Exhibits.
<TABLE>
<CAPTION>
Exhibit
Number Description of Document
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<S> <C>
2.1 Acquisition Agreement between the Company and Crown, dated as
of August 1, 1996, together with a list briefly identifying the
contents of all omitted schedules
</TABLE>
The registrant agrees to furnish supplementally a copy of any omitted schedule
to the Acquisition Agreement to the Securities and Exchange Commission upon
request.
3
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
U.S. CAN CORPORATION
Date: September 26, 1996 By /s/ TIMOTHY W. STONICH
----------------------------------
Timothy W. Stonich
Executive Vice President--Finance,
Chief Financial Officer and Secretary
4
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
UNITED STATES CAN COMPANY
Date: September 26, 1996 By /s/ TIMOTHY W. STONICH
----------------------------------
Timothy W. Stonich
Executive Vice President--Finance,
Chief Financial Officer and Secretary
5
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EXHIBIT INDEX
Exhibit
Number Description of Exhibit
- ------ ----------------------
2.1 Acquisition Agreement, between the Company and Crown,
dated as of August 1, 1996, together with a list
briefly identifying the contents of all omitted
schedules.
<PAGE> 1
EXHIBIT 2.1
DATED 1 August 1996
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Crown Cork & Seal Company, Inc. (1)
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U.S. Can Corporation (2)
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AGREEMENT
relating to
the sale and purchase of the entire issued share capital
of CarnaudMetalbox Aerosols S.A., of
CMB Aerosoles S A. and of CMB Aerosoldosen Deutschland GmbH
and the sale and purchase of the aerosol can making business
and related undertaking of Crown Cork Company Limited
at Southall and Tredegar, United Kingdom and of the aerosol
can making business and related undertaking of
Crown Cork Company, Italy SpA at Voghera, Italy
----------------------------------------------------------------
Lovell White Durrant
65 Holborn Viaduct
London ECIA 2DY
Ref: A4/FLEG/JHR
<PAGE> 2
CONTENTS
Clause Page
1. Interpretation 2
2. Conditions 21
3. Sale and purchase of Shares 24
4. Sale and purchase of the UK Aerosol Business 25
5. Sale and purchase of the Italian Aerosol Business 28
6. Consideration 31
7. Pre-Closing matters 34
8. Closing 39
9. Warranties 51
10. Limitation on warranty claims 55
11. Purchaser Warranties 61
12. Contracts 62
13. UK and Italian Employees 62
14. Pensions 63
15. Properties 63
16. Confidentiality and announcements 63
17. Non-compete 64
18. Further assurance and availability of information 66
19. UK Receivables and Italian Receivables 68
20. Foreign exchange provisions and interest 68
21. Continuing obligations 69
22. Costs 70
23. VAT 70
24. Notices 72
25. Severability and suspension of restrictions 73
26. Entire agreement and variation 74
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27. General provisions 74
28. Governing law and jurisdiction 74
SCHEDULE I 76
Part 1 - The Shares 76
Part 2 - Allocation of Consideration 77
SCHEDULE II 78
The Divestiture Package Companies 78
SCHEDULE III 81
The Combined Closing Accounts and Certificate of Net Indebtedness 81
SCHEDULE IV 93
Part 1 - The Properties 93
Part 2 - Sale Conditions relating to the UK Properties 95
SCHEDULE V 100
The Licence 100
SCHEDULE VI 101
General Warranties 101
SCHEDULE WI 121
Tax Warranties 121
SCHEDULE VIII 129
Pension Provisions 129
APPENDIX I - Actuarial Assumptions 136
Appendix II - Relevant Employees 140
SCHEDULE IX 141
Part 1 - UK Employees 141
Part 2 - Italian Employees 142
SCHEDULE X 143
Italian Assets 143
SCHEDULE XI 144
Provisions concerning the operation of the Italian Aerosol Business
immediately following Closing 144
SCHEDULE XII 146
Form of Transitional Services Agreement 146
SCHEDULE XIII 147
Form of Tax Deed 147
SCHEDULE XIV 148
Further UK Excluded Assets 148
SCHEDULE XV
Key Personnel
<PAGE> 4
SALE AND PURCHASE AGREEMENT
THIS AGREEMENT dated the 1st day of August 1996.
BETWEEN:
(1) CROWN CORK & SEAL COMPANY, INC. a body corporate incorporated
in the state of Pennsylvania, USA whose principal executive office is
at 9300 Ashton Road, Philadelphia, PA 19136, USA ("Crown");
(2) US CAN CORPORATION a body corporate incorporated in the state of
Delaware whose principal executive office is at 900, Commerce Drive,
Oak Brook, Illinois 60521, USA ("US Can").
RECITALS:
(A) Details of the registered holders of the issued shares in
CarnaudMetalbox Aerosols S.A. ("CMB France"), CMB Aerosoles
S.A. ("CMB Spain"), and CMB Aerosoldosen Deutschland GmbH ("CMB
Germany") (the "Divestiture Package Companies") are set out in Schedule
I Part 1 and particulars of the Divestiture Package Companies are set
out in Schedule II.
(B) Crown Cork Company Limited ("Crown UK") beneficially owns the UK
Aerosol Business (as hereinafter defined).
(C) Crown Cork Company Italy, SpA ("Crown Italy" ) owns the Italian
Aerosol Business (as hereinafter defined).
(D) Crown owns or wholly owned subsidiaries of Crown own the whole of the
issued share capital of Crown UK and Crown Italy.
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(E) Crown owns or subsidiaries of Crown (whose only minority
shareholders consist of persons required to hold shares so as to
satisfy French legal requirements (totalling less than 1 per cent of
the issued share capital of the relevant subsidiary)) own the whole of
the issued share capital of CMB Germany, CMB Spain and CMB France save
only, in the case of CMB France, for those shares in CMB France owned
by the French Individual Shareholders (as hereinafter defined).
(F) Crown has agreed to sell or procure the sale of and US Can has
agreed to purchase or procure the purchase of (i) all of the Shares
in the capital of each of CMB France (and, if and to the extent that
US Can so requests, the shares in CMB France held by the French
Individual Shareholders), CMB Spain and CMB Germany; (ii) the UK
Aerosol Business; and (iii) the Italian Aerosol Business on and
subject to the terms of this Agreement.
OPERATIVE TERMS
1. INTERPRETATION
1.1 In this Agreement, its Recitals and Schedules:
"Accounts" means in relation to each of CMB
France, CMB Spain and CMB Germany, the
audited balance sheet of that Divestiture
Package Company made up as at the
Accounts Date and the audited profit and
loss account of that Divestiture Package
Company for the financial year ended on
the Accounts Date, together with all
notes, reports, statements and other
documents annexed or appended thereto,
whether or not in accordance with any
legal requirement;
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"Accounts Date" means 31 December 1995;
"Aggregate Working Capital" means the aggregate of the Working Capital
of each of the Divestiture Package Companies,
of the UK Aerosol Business and of the Italian
Aerosol Business as shown in the Combined
Closing Accounts;
"Aggregate Working Capital the statement of aggregate working capital
Statement" referred to in paragraph 3 of Part I of
Schedule III and prepared in accordance with
Schedule III;
"Business Day" means any day except Saturdays and Sundays on
which banks in the City of London and New York
are open for business;
"Certificate of Net means the certificate referred to in paragraph
Financial Indebtedness" 5 of Part I of Schedule III and prepared
in accordance with Schedule III;
"Claim" means a claim under the Warranties;
"Closing" means closing of the sale and purchase of the
Shares (and, if and to the extent so requested
by US Can, of the shares in CMB France held by
the Individual French Shareholders) and of the
sale and purchase of the UK Aerosol Business
and of the Italian Aerosol Business pursuant
to this Agreement in accordance with its
terms;
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"Closing Date" means the date on which Closing takes place
which shall be the later of 25 days after the
date of this Agreement and the fifth Business
Day following the date on which all of the
conditions, other than condition (a), set out
in clause 2.1 of this Agreement are satisfied
(or, where applicable, waived) or such other
date as is agreed between Crown and US Can;
"CMB France" has the meaning given in Recital (A);
"CMB Germany" has the meaning given in Recital (A);
"CMB Spain" has the meaning given in Recital (A);
"Combined Closing Accounts" means the statements referred to in paragraph
3 of Part I of Schedule III and prepared in
accordance with Schedule III;
"Consideration" means the total consideration for the Shares
and the UK Aerosol Business and the
Italian Aerosol Business as set out in clause
6.1, subject to clause 6.3 and clause 6.4;
"Crown Associates" means the subsidiary undertakings from time to
time of Crown within the meaning of Section
258(1) of the Companies Act 1985;
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"Crown's Auditors" means Befec - Price Waterhouse;
"Crown Italy" has the meaning given in Recital (C);
"Crown's Scheme" has the meaning given in Schedule VIII;
"Crown's Solicitors" means Messrs Lovell White Durrant of 65 Holborn
Viaduct, London EC1A2DY (Ref: A4/FLeG/JHR);
"Crown UK" has the meaning given in Recital (B):
"Data Room Information" means the information in the data room in New
York set up by Morgan Guaranty Trust Company
of New York in connection with the proposed
sale and purchase of the DP Businesses;
"Descriptive Memorandum" means the information memorandum dated 17
March 1996 issued by Morgan Guaranty Trust
Company of New York in relation to the
proposed divestiture of selected aerosol can
businesses by Crown;
"Disclosure Letter" means the letter of the same date as this
Agreement from Crown to US Can referred
to in clause 9.2 including the documents in
the Disclosure Bundle referred to therein or
expressly deemed to be disclosed in paragraph 4
of such letter;
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"Divestiture Package Companies" has the meaning set out in Recital (A);
"DP Businesses" means the Divestiture Package Companies,
the Italian Aerosol Business and the UK Aerosol
Business;
"DP Employees" means those persons employed by the Divestiture
Package Companies who are so employed on the
Closing Date;
"Employee Statutes" means any applicable legislative or statutory
provision relating to employment (including
its termination) or the rights, obligations
and/or protection of employees in any relevant
jurisdiction;
"Employment Regulations" the Transfer of Undertakings (Protection of
Employment) Regulations 1981 (as amended);
"Environment" means all or any of the following media: land
(including without limitation any building
structure or receptacle in over or on it);
water (including without limitation surface,
coastal and groundwaters); and air (including
without limitation the atmosphere within any
natural or man-made structure above or below
ground);
"Environmental Laws" mean all laws whatsoever including but not
limited to any European Community
legislation (including
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any regulation or directive) the common law,
the legislation of the United Kingdom, France,
Germany, Spain and Italy (including
subordinate legislation and any order made
pursuant to such legislation) any
constitution, decree, order, ordinance, rule,
regulation, resolution, byelaw or order of any
court or administrative tribunal having the
force of law relating to health and safety,
pollution or protection of the Environment in
force on the date hereof including but not
limited to laws relating to emissions,
discharges, releases, or threatened releases
of Hazardous Substances or other materials
into the Environment or noise or otherwise
relating to the manufacture, processing,
distribution, use, treatment, disposal,
deposit, storage, transport or handling of the
same;
"Financial Indebtedness" has the meaning given thereto in
paragraph B of Part III of Schedule III;
"French Individual means the shareholders in CMB France other
Shareholders" than Societe de Participations CarnaudMetalbox
listed under "Registered Holders" in relation
to CMB France in Schedule I;
"French Intellectual means all Intellectual Property (but not
Property Rights" including the Licensed Intellectual Property
Rights) owned or used by CMB France in the
carrying on of the
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business of CMB France including but not
limited to the benefit of the Licence;
"General Warranties" means the warranties set out in Schedule VI;
"German Intellectual
Property Rights" means all Intellectual Property (but
not including the Licensed Intellectual
Property Rights) owned or used by CMB Germany
in the carrying on the business of CMB Germany
including but not limited to the benefit of
the Licence;
"Global Accounts" means the Special Purpose Combined Financial
Statements in Appendix B of the Descriptive
Memorandum;
"Hazardous Substances" means any natural or artificial substance
(whether in solid or liquid form or in the
form of a gas or vapour and whether alone or
in combination with one or more others) which
is any one or more of the following: waste,
hazardous, volatile, toxic, ecotoxic,
radioactive, carcinogenic, corrosive,
infectious, teratogenic, mutagenic, oxidizing,
flammable, irritant, capable of polluting
land, water or air, capable of causing other
than minor harm to persons who do not have
abnormal susceptibility in respect thereof or
otherwise damaging the Environment in a manner
which contravenes or will result in any
obligations or liabilities under
<PAGE> 12
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Environmental Law; where any term in this
definition is defined in the EC Hazardous
Waste Directive (91/689/EEC) it shall bear the
meaning assigned to it in that definition;
"Intellectual Property" means trademarks, service marks, business
names, patents (including supplementary
protection certificates), utility models,
design rights, topography rights, copyrights,
inventions, trade secrets, other confidential
information, know-how and all similar
intellectual property rights in any part of
the world (whether or not the same are
registered, unregistered or capable of
registration) and all applications and rights
to apply for or for the protection of any of
the foregoing;
"Intellectual Property means the French, German, Italian, Spanish and
Rights" UK Intellectual Property Rights;
"Italian Aerosol Business" means the aerosol can making business and
related undertaking of Crown Italy at Voghera,
Italy as carried on by Crown Italy immediately
prior to Closing;
"Italian Assets" the assets and rights to be sold pursuant to
Clause 5.1;
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"Italian Contracts" means all contracts, engagements and
obligations of, and rights, benefits and
licences enjoyed by, Crown Italy (including
those for the purchase or supply of any goods
or services by or to Crown Italy) to the
extent to which they relate to and which have
been entered into or undertaken in relation to
the Italian Aerosol Business and which remain
to be fully performed at the Closing Date, but
excluding contracts of insurance and any
contract forming part of or relating to the
Italian Excluded Assets or the Italian
Excluded Liabilities;
"Italian Employees" means those of the persons employed by Crown
Italy in the Italian Aerosol Business being, at
the date of this Agreement, those named in
Schedule IX Part 2;
"Italian Excluded Assets" means the assets to be excluded from the sale
and purchase of the Italian Aerosol Business
pursuant to clause 5.3;
"Italian Excluded Liabilities" means, without prejudice to the obligation of
US Can to assume the burden of the Italian
Contracts with effect from Closing, all
liabilities of Crown Italy incurred on or at
any time prior to Closing other than:
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(a) any such liabilities to the extent
provided for in the Accounts;
(b) any such liabilities incurred in the
normal course of the Italian Aerosol
Business since the Accounts Date except
to the extent they are covered under the
insurances of the relevant Vendor or of
Crown or any other Crown Associate or
would be so covered apart from anything
done or omitted to be done which makes
such insurances void or voidable and
against which US Can or any Purchaser
will not be indemnified following Closing
under such insurances;
"Italian Fixed Assets" means collectively the assets of the Italian
Aerosol Business to be sold and purchased
under this Agreement set out in Schedule X
and includes (where the context permits) any
of them;
"Italian Goodwill" means the goodwill of Crown Italy in
connection with the Italian Aerosol
Business and the right for US Can to represent
itself as carrying on the Italian Aerosol
Business in succession to Crown Italy,
including the right to all lists and
particulars of customers and suppliers of the
Italian Aerosol Business and all other
trading, operating and confidential
information exclusively relating to the
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Italian Aerosol Business and the right to the
benefit of all restrictive covenants and
confidentiality obligations undertaken by the
persons previously employed or engaged in the
Italian Aerosol Business, but for the
avoidance of doubt this will not (subject to
clause 8.18) include any right to use any
trade name, business name, name or marks used
at any time at or prior to Closing in relation
to the Italian Aerosol Business;
"Italian Intellectual Property means all Intellectual Property (but not
Rights" including the Licensed Intellectual Property
Rights) owned or used by Crown Italy and which
Crown Italy only uses in the carrying on of
the Italian Aerosol Business including but not
limited to the benefit of the Licence;
"Italian Inventory" means goods purchased or agreed to be
purchased for resale, consumable stores,
raw materials and components for incorporation
into products for sale, products and services
in the course of production and finished goods
of Crown Italy and in each case for use or
resale in the ordinary course of the Italian
Aerosol Business:
"Italian Liabilities" means all liabilities save for the Italian
Excluded Liabilities, of Crown Italy in
relation to the Italian
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Aerosol Business and the burden of the
Italian Contracts;
"Italian Property" the property at Voghera, Italy where the
Italian Aerosol Business is currently
carried on;
"Italian Receivables" means the trade and other receivables of Crown
Italy in relation to the Italian Aerosol
Business as at Closing (including, without
limitation, prepayments, retrospective
rebates, overpayments and VAT);
"Italian Transfer Agreement" the document in the agreed terms pursuant to
which the Italian Aerosol Business is to be
transferred to the Purchaser together with the
side letter in the agreed terms relating
thereto;
"Licence" means the licence in the agreed terms to be
entered into on or prior to Closing
described in Schedule V;
"Licensed Intellectual Property means all Intellectual Property to be licensed
Rights" to the Divestiture Package Companies, Crown UK
and Crown Italy prior to Closing, on the terms
of the Licence;
"Net Financial Indebtedness" has the meaning given thereto in paragraph B
of Part III or Schedule III;
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"Obligations" has the meaning set out in clause 21;
"Properties" means the freehold and leasehold properties
particulars of which are set out in Schedule
IV;
"Purchaser" means US Can or, as appropriate, any
corporation which US Can procures to
purchase all or any of the DP Businesses
pursuant to this Agreement;
"Relevant Company" has the meaning set out in clause 10.3;
"Rights" means the Intellectual Property Rights and the
Licensed Intellectual Property Rights;
"Shares" means all the shares in the capital of the
Divestiture Package Companies as at Closing
other than the shares in CMB France held by
the French Individual Shareholders;
"Spanish Intellectual means all Intellectual Property (but not
Property Rights" including the Licensed Intellectual Property
Rights) owned or used by CMB Spain in the
carrying on of the business of CMB Spain
including but not limited to the the benefit of
the License;
"Stocks" means goods purchased or agreed to be purchased
for resale, consumable stores, raw materials
and components for incorporation into
products for sale,
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products and services in the course of
production and finished goods, in each
case for use or resale in the ordinary course
of business;
"Tax/Taxation" means all forms of taxation, duties, imposts,
contributions including social security
contributions and charges sums and levies
whatsoever and whenever imposed, whether by
governmental, state, regional, local or other
authority and whether of the United Kingdom or
elsewhere and whether or not primarily payable
by any Divestiture Package Company, or by
Crown UK or by Crown Italy or by any other
person, and all charges, interest, fines,
penalties and surcharges incidental, or
relating, to the same;
"Tax Deed" means a deed in the form set out in
Schedule XIII;
"Tax Warranties" means the warranties set out in
Schedule VII;
"Transitional Services means an agreement in the form set out
Agreement" in Schedule XII;
"UK Aerosol Business" means the aerosol can making business and
related undertaking of Crown UK at Southall,
England and Tredegar, Wales as carried on by
Crown UK immediately prior to Closing;
<PAGE> 19
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"UK Fixed Assets" means collectively the fixed assets owned by
Crown and used in the UK Aerosol Business
other than those of such assets which are UK
Excluded Assets and includes (where the
context permits) any of them;
"UK Assets" means the assets and rights to be sold
pursuant to Clause 4.1 of this Agreement;
"UK Contracts" means all contracts, engagements and
obligations of, and rights, benefits and
licences enjoyed by Crown UK (including those
for the purchase or supply of any goods or
services by or to Crown UK) to the extent to
which they relate to and which have been
entered into or undertaken in relation to the
UK Aerosol Business and which remain to be
fully performed at the Closing Date, but
excluding contracts of insurance and any
contract forming part of or relating to the UK
Excluded Assets or to the UK Excluded
Liabilities;
"UK Employees" means those of the persons employed by Crown UK
in the UK Aerosol Business being, at the date
of this Agreement, those named in Schedule IX
Part I;
"UK Excluded Assets" means the assets to be excluded from the sale
and purchase of the UK Aerosol Business
pursuant to clause 4.3;
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"UK Excluded Liabilities" means, without prejudice to the obligation of
US Can to assume the burden of the UK
Contracts with effect from Closing, all
liabilities of Crown UK incurred on or at any
time prior to Closing other than:
(a) any such liabilities to the extent
provided for in the Global
Accounts; and
(b) any such liabilities incurred in the
normal course of the UK Aerosol
Business since the Accounts Date except
to the extent that they are covered under
the insurances of the relevant Vendor or
of Crown or any other Crown Associate or
would be so covered apart from anything
done or omitted to be done which makes
such insurances void or voidable and
against which US Can or any Purchaser
will not be indemnified following Closing
under such insurances;
"UK Goodwill" means the goodwill of Crown UK in connection
with the UK Aerosol Business and the right
for US Can to represent itself as carrying on
the UK Aerosol Business in succession to Crown
UK, including the right to all files and other
information of Crown UK relating to customers
and suppliers of the UK Aerosol Business and
all other trading,
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operating and confidential information
relating to the UK Aerosol Business and the
right to the benefit of all restrictive
covenants and confidentiality obligations
undertaken by the persons previously employed
or engaged in the UK Aerosol Business, but
for the avoidance of doubt this will not
(subject to Cause 8.18) include any right to
use any trade name, name or marks used at any
time at or prior to Closing in relation to the
UK Aerosol Business;
"UK Intellectual means the Intellectual Property (but not
Property Rights" including the Licensed Intellectual Property
Rights) owned or used by Crown UK and which
Crown UK only uses in the carrying on the UK
Aerosol Business including but not limited to
the benefit of the License;
"UK Inventory" means goods purchased or agreed to be
purchased for resale, consumable stores, raw
materials and components for incorporation
into products for sale, products and services
in the course of production and finished goods
of Crown UK, in each case for use or resale in
the ordinary course of the UK Aerosol
Business;
"UK Liabilities" means all liabilities, save for the UK
Excluded Liabilities, of Crown UK in
relation to the UK
<PAGE> 22
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Aerosol Business and the burden of the
UK Contracts;
"UK Properties" means the land and buildings at Southall,
England and Tredegar, Wales as further
described in Schedule IVL:
"UK Receivables" means the trade and other receivables of Crown
UK in relation to the UK Aerosol Business as
at Closing (including, without limitation,
prepayments, retrospective rebates,
overpayments and VAT);
"US Can Associates" means the subsidiary undertakings from time to
time of US Can within the meaning of
Section 258(1) of the Companies Act 1985;
"US Can's Solicitors" means Messrs Berwin Leighton of Adelaide
House, London Bridge, London EC4R 9HA (Ref:
JBEN/DROS);
"VAT" means valued added tax or its
equivalent in any jurisdiction;
"VATA" means the Value Added Tax Act 1994;
"VATA Regulations" means the Valued Added Tax Act (General)
Regulations 1995 (as amended);
<PAGE> 23
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"Vendor" means, in relation to each Divestiture Package
Company the registered owner of its Shares
and, in region to the UK Aerosol Business
means Crown UK: and in relation to the Italian
Aerosol Business, means Crown Italy;
"Warranties" means the General Warranties and the
Tax Warranties;
"Working Capital" has the meaning given in paragraph 4 of Part
1 of Schedule III.
1.2 Any reference in this Agreement to a document being "in the agreed terms"
means that document in the terms agreed between the parties and for the
purpose of identification signed by US Can's Solicitors and Crown's
Solicitors, or such other terms as may be agreed in writing between the
parties in substitution therefor.
1.3 In this Agreement, references to any statutory provision in any
jurisdiction shall include such provision as from time to time
amended, whether before on or (in the case only of re-enactment or
consolidation without substantive amendment) after the date hereof, and
shall be deemed to include provisions of earlier legislation which have
been re-enacted (with or without modification) or replaced (directly or
indirectly) by such provision and shall further include all statutory
instruments or orders which are in force at the date hereof.
1.4 In this Agreement and its Schedules:
(a) the masculine gender shall include the feminine and neuter and the
singular number shall include the plural and vice versa;
<PAGE> 24
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(b) references to persons shall include individuals, bodies
corporate, unincorporated associations and partnerships;
(c) the headings are inserted for convenience only and shall not affect
the construction of this Agreement;
(d) references to Recitals, clauses and Schedules and sub-divisions
thereof, unless a contrary intention appears, are to the Recitals
and clauses of and Schedules to this Agreement and sub-divisions
thereof respectively;
(e) all references to time are to London time.
1.5 The Schedules and the Recitals form part of this Agreement and shall
be construed and shall have the same full force and effect as if
expressly set out in the body of this Agreement.
2. CONDITIONS
2.1 Closing is conditional in all respects upon:
(a) no government or governmental, supranational or state agency
or regulatory body or any other body, person or organisation in any
relevant jurisdiction having prior to Closing:
(i) instituted or threatened any action, suit or investigation
to prohibit, materially restrain, or otherwise materially
challenge the closing by Crown or any Vendor or by US Can or any
Purchaser of the sale and purchase contemplated by this
Agreement; or
<PAGE> 25
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(ii) threatened to take any action as a result of or in anticipation
of any such sale which could materially affect the carrying on
of a DP Business as carried on at the date hereof; or
(iii) proposed or enacted any statute or regulation which would
prohibit, materially restrict or materially delay Closing or the
operation of any of the Divestiture Package Companies or the UK
Aerosol Business or the Italian Aerosol Business after Closing;
(b) clearance from the Spanish authorities on Foreign Investments in
relation to the sale of the shares of CMB Spain pursuant hereto having
been received;
(c) completion of the process set forth in Article 47 of law 428 of 1990
of Italy in relation to the transfer of the Italian Employees under
Italian law;
(d) Regulation 10 of the Employment Regulations having been complied with
in relation to the UK Employees;
(e) all parties thereto having executed in escrow (subject only to Closing
taking place) a Deed of Substitution of Principal Employer in the
agreed terms by which US Can or the Purchaser of the UK Aerosol
Business is substituted as the principal employer of the Crown Scheme;
(f) all of CMB Spain's interest in Expansion Quimica del Ampurdan S.A.
having been transferred to its immediate parent at market value;
<PAGE> 26
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(g) CMB Germany having entered into such documents or taken such other
steps as are necessary to remedy the formality defects to the two
lease contracts referred to in the Disclosure Letter and described in
paragraph 3 of Part I of Schedule IV.
2.2 Each party shall notify the other in writing as soon as practicable
after becoming aware of any condition referred to above having been
satisfied or of any circumstance arising by reason of which the
satisfaction of any condition may not occur or be delayed.
2.3 Crown shall have the right to waive in whole or in part condition 2.1(e)
by notice in writing to US Can. All other conditions may only be
waived (to the extent possible by law) with the consent in writing of both
Crown and US Can.
2.4 Each party shall use all reasonable endeavors to ensure that, to the
extent it is able, the conditions specified in clauses 2.1 are fulfilled
(but without requiring it to waive any of the same which are capable of
waiver by it) as soon as practicable and in any event not later than 6
pm on the day which is 90 days after the date hereof.
2.5 If all the conditions specified in clause 2.1 have not been satisfied or
where applicable waived in accordance with clause 2.3 at or prior to
midnight (London time) on the day which is 59 days after the date hereof
Crown shall have the right to rescind this Agreement by notice in writing
to US Can at or prior to midnight (London time) on the day which is 60
days after the date hereof failing which the provisions of clause 9.5 as
to the giving of the Warranties as at midnight on the 60th day following
the date hereof shall apply.
2.6 If all the conditions specified in clause 2.1 have not been satisfied,
or (where applicable) waived by Crown, by 6 pm on the day which is 90
days after the date hereof or if Crown exercises its right pursuant to
clause 2.5 hereof then this Agreement shall have no further effect and
(subject only to clauses 16 (Confidentiality and Announcements) and 22
(Costs))
<PAGE> 27
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the parties shall be released from all obligations under it, but without
prejudice to any rights or obligations which have accrued prior to such
time and date (including those relating to the obligation of either party
to use its reasonable endeavours set out in clause 2.4).
3. SALE AND PURCHASE OF SHARES
3.1 On and subject to the terms of this Agreement:
(a) (i) Crown shall sell or procure the sale by the Vendors of the
Shares in the Divesture Package Companies free from all
liens, charges, encumbrances and other third party rights; and
(ii) Crown shall if and to the extent required by US Can to the
extent not in contravention with local law procure the sale
of the shares in CMB France held by the French Individual
Shareholders for the sum of 1 French Franc per share free from
all liens, charges, encumbrances and other third party rights.
(b) (i) US Can shall or shall procure the purchase of the Shares in
the Divestiture Package Companies; and
(ii) US Can shall procure the purchase by persons nominated by it
of the shares in CMB France held by the French Individual
Shareholders for the sum of 1 French Franc per share which it
requires to be sold pursuant to clause 3.1(a)(ii) above on and
with effect from the Closing Date;
together with all rights attaching or accruing thereto with
effect therefrom.
<PAGE> 28
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3.2 Crown shall not be obliged to sell or procure the sale of shares as
referred to in clause 3.1(a) above or procure the sale of the UK
Aerosol Business or of the Italian Aerosol Business unless the purchase of
all the shares as referred to in clause 3.1(b) above and of the UK Aerosol
Business and the Italian Aerosol Business is completed simultaneously and
if such purchase is not so completed on the Closing Date then Crown shall
be entitled to rescind this Agreement.
3.3 US Can shall not be obliged to purchase and shall not be obliged to
procure the purchase of any shares as referred to in clause 3.1(b) above,
or of the UK Aerosol Business or the Italian Aerosol Business unless the
sale by Crown of all shares as referred to in clause 3.1(a) above and of
the UK Aerosol Business and the Italian Aerosol Business is completed
simultaneously, and if such sale is not so completed on the Closing
Date then US Can shall be entitled to rescind this Agreement.
3.4 If either party to this Agreement exercises its rights pursuant to clause
3.2 OR 3.3, this Agreement shall have no further effect and (subject to
clauses 16 (Confidentiality and Announcements) and 22 (Costs)) the parties
shall be released from all obligations under it except in respect of any
prior breach.
4. SALE AND PURCHASE OF THE UK AEROSOL BUSINESS
4.1 On and subject to the terms of this Agreement (including without
limitation clauses 3.2 and 3.3), and so that the UK Aerosol Business is
transferred as a going concern, Crown shall procure the sale by Crown UK
and US Can shall purchase or procure the purchase of the UK Aerosol
Business consisting of the assets set out below with effect from Closing;
(a) the UK Goodwill;
<PAGE> 29
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(b) the UK Fixed Assets;
(c) the UK Inventory as at Closing;
(d) the benefit of the UK Contracts together with unconfirmed bids and
orders and work in progress;
(e) the UK Properties;
(f) all of Crown UK's rights against third parties which relate to the UK
Aerosol Business, including, without limitation:
(i) all rights in connection with guarantees, warranties and
representations given by such third parties concerning
goods and services supplied to Crown UK in the course of the
UK Aerosol Business;
(ii) the benefit of any insurance or insurance claim attributable
to any event occurring before the Closing Date which relates
to the UK Assets or to the liabilities assumed in relation to
the UK Aerosol Business under this Agreement;
(g) the UK Receivables;
(h) (subject to clause 4.3(c) below) the UK Intellectual Property Rights;
and
(i) cash in hand or at the bank;.
but shall exclude the UK Excluded Assets.
<PAGE> 30
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4.2 The assets to be sold by Crown UK pursuant to clause 4.1 shall be sold
free from all liens, charges and encumbrances except those disclosed
in the Disclosure Letter.
4.3 There shall be excluded from this sale and purchase:
(a) any amounts repayable by or recoverable from the Inland Revenue
or HM Customs & Excise (including VAT) attributable to a period
ending on or before the Closing Date (except insofar as
included in the Aggregate Working Capital Statement);
(b) the benefit of any insurance or insurance claim attributable to
any event occurring before the close of business on the
Closing Date which does not relate to the UK Assets or to the UK
Liabilities;
(c) subject to clause 8.18, the right (which is expressly reserved to
Crown, Crown UK and their assigns) to use any trade name,
business name, name or marks used at any time on or prior to
Closing in relation to the UK Aerosol Business and the rights of
Crown, Crown UK and their assigns against third parties in
respect thereof;
(d) the manufacturing and packaging equipment used to manufacture
crowns at Southall, England;
(e) the uninstalled coil shear line currently stored at Southall,
England and associated equipment including the coil handling
fork lift truck and the uninstalled automatic feed coil shear
line at Tredegar; and
(f) the assets set out in Schedule XIV.
<PAGE> 31
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4.4 On and subject to the terms of this Agreement and in consideration of the
sale of the UK Aerosol Business US Can or the Purchaser of the UK
Aerosol Business shall assume the UK Liabilities with effect from Closing
and US Can (whether it purchases or procures the purchase of the UK
Aerosol Business) shall indemnify and shall keep indemnified Crown, Crown
UK and any other Crown Associate forthwith upon demand in writing by Crown
against any liability, cost, or expense which it may suffer or incur in
relation to the UK Liabilities.
4.5 For the avoidance of doubt, US Can confirms and acknowledges that the
assets being sold pursuant to clause 4.1 hereof do not include Crown's UK
interest in Alpine Crown Corks Limited and in the business of Crown UK
carried on at Sutton in Ashfield, England.
4.6 Crown shall indemnify the purchaser of the UK Aerosol Business in respect
of any liability to Taxation in respect of the UK Aerosol Business in
respect of any period expiring on or before 31 December 1995 which is in
excess of such liabilities provided for in the Global Accounts.
5. SALE AND PURCHASE OF THE ITALIAN AEROSOL BUSINESS
5.1 On and subject to the terms of this Agreement (including without
limitation clauses 3.2 and 3.3), and so that the Italian Aerosol Business
is transferred as a going concern, Crown shall procure the sale by
Crown Italy and US Can shall purchase or procure the purchase of the
Italian Aerosol Business consisting of the assets set out below with
effect from Closing:
(a) the Italian Fixed Assets;
(b) the Italian Inventory as at Closing;
<PAGE> 32
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(c) the benefit of the Italian Contracts together with unconfirmed bids
and orders and work in progress;
(d) all of Crown Italy's rights against third parties which relate to the
Italian Aerosol Business, including, without limitation:
(i) all rights in connection with guarantees, warranties and
representations given by such third parties concerning goods
and services supplied to Crown Italy in the course of the Italian
Aerosol Business;
(ii) the benefit of any insurance or insurance claim attributable to
any event occurring before the Closing Date which relates to the
Italian Assets or to the liabilities assumed by US Can under this
Agreement;
(e) the Italian Receivables;
(f) the Italian Goodwill; and
(g) (subject to 5.3(d) below) the Italian Intellectual Property Rights
but shall exclude the Italian Excluded Assets.
5.2 The assets to be sold by Crown Italy pursuant to clause 5.1 shall be sold
free from all liens, charges and encumbrances except those disclosed
in the Disclosure Letter.
<PAGE> 33
- 30 -
5.3 There shall be excluded from this sale and purchase:
(a) all cash in hand or at bank;
(b) any amounts repayable by or recoverable from the Italian tax
authorities attributable to a period ending on or before the
Closing Date (except insofar as included in the Aggregate Working
Capital Statement);
(c) the benefit of any insurance or insurance claim attributable to any
event occurring before the close of business on the Closing
Date which does not relate to the Italian Assets or to the Italian
Liabilities;
(d) subject to clause 8.18, the right (which is expressly reserved to
Crown, Crown Italy and their assigns) to use any trade name,
business name, name or marks used at any time at or prior to Closing
in relation to the Italian Aerosol Business and the rights of Crown,
Crown Italy and their assigns against third parties in respect
thereof;
(e) the assets, plant and equipment comprising and relating to the
printing lines situate at Voghera;
(f) the stretch wrapper plant and equipment situate at Voghera; and
(g) the Italian Property.
5.4 On and subject to the terms of this Agreement and in consideration of
the sale of the Italian Aerosol Business US Can or the Purchaser of the
Italian Aerosol Business shall assume the Italian Liabilities with effect
from Closing and US Can (whether it purchases or procures the purchase of
the Italian Aerosol Business) shall indemnify and shall keep indemnified
Crown,
<PAGE> 34
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Crown Italy and any other Crown Associate forthwith upon demand in writing
by Crown against any cost, liability or expense which it may suffer or
incur in relation to the Italian Liabilities.
5.5 Crown agrees to procure that Crown Italy shall seek a certificate from the
appropriate tax authorities showing the outstanding tax liabilities of
Crown Italy in respect of the Italian Aerosol Business. Whether or not
such certificate is obtained, Crown hereby agrees to pay the Purchaser of
the Italian Aerosol Business an amount equal to any liability to Taxation
arising or accruing or deemed to arise or accrue in Crown Italy on or
before Closing for which, as a result of the transfer of the Italian
Aerosol Business, the Purchaser of the Italian Aerosol Business is or may
be liable whether primarily, secondarily, jointly, jointly or severally or
otherwise, not being any liability for Taxation which is provided for in
the Global Accounts or which was both incurred in the normal course of the
Italian Aerosol Business since 31 December 1995 and is to be provided for
in the Aggregate Working Capital Statement, and US Can shall procure that
the Purchaser of the Italian Aerosol Business will discharge the relevant
liability to Taxation up to such amount.
6. CONSIDERATION
6.1 Subject to clauses 6.3 and 6.4 the total consideration payable by US Can
for the Shares and for the UK Aerosol Business and the Italian Aerosol
Business shall be the sum of US$58.6 million less $5.8 million of
financial indebtedness outstanding as of 30 June 1996 which shall be paid
in cash on Closing to Crown on behalf of the Vendors and apportioned as
between the Shares, the UK Aerosol Business and the Italian Aerosol
Business (including the assumption of the UK Liabilities and of the
Italian Liabilities) as shown in Part 2 of Schedule I and subapportioned
as between the UK Assets and the Italian Assets at book value. The
consideration shall be exclusive of VAT if applicable.
<PAGE> 35
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6.2 The provisions of Schedule III shall apply to the drawing up and reviewing
of the Combined Closing Accounts and of the Certificate of Net
Financial Indebtedness and the review by Crown's Auditors of the amount of
the Aggregate Working Capital and of Net Financial Indebtedness.
6.3 If and to the extent that the amount of the Aggregate Working Capital
shown by the Aggregate Working Capital Statement is:
(a) less than US$28.6 million:
(i) the amount of the Consideration shall be reduced by an amount
equal to the shortfall in the Aggregate Working Capital
below US$28.6 million; and
(ii) Crown shall pay within seven days of agreement or determination
of Aggregate Working Capital in accordance with Schedule
III to US Can by way of reduction of the consideration for the
Shares and for the UK Aerosol Business and the Italian Aerosol
Business an amount equal to such shortfall in cash.
(b) more than US$28.6 million;
(i) the amount of the Consideration shall be increased by an amount
equal to the excess in the Aggregate Working Capital above
US$28.6 million; and
(ii) US Can shall pay within seven days of agreement or determination
of Aggregate Working Capital in accordance with Schedule
III to Crown (on behalf of the Vendors) by way of further
consideration for the Shares and for
<PAGE> 36
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the UK Aerosol Business and the Italian Aerosol Business an
amount equal to such excess in cash.
6.4 If and to the extent that the amount of the Net Financial Indebtedness
shown by the Certificate of Net Financial Indebtedness is:
(a) more than US$5.8 million:
(i) the amount of the Consideration shall be reduced by an amount
equal to the excess in Net Financial Indebtedness over
US$5.8 million; and
(ii) Crown shall pay within seven days of agreement or determination
of Net Financial Indebtedness in accordance with Schedule III to
US Can by way of reduction of the consideration for the Shares
and for the UK Aerosol Business and the Italian Aerosol Business
an amount equal to such excess in cash.
(b) less than US$5.8 million;
(i) the amount of the Consideration shall be increased by the amount
by which Net Financial Indebtedness is less that US$5.8
million; and
(ii) US Can shall pay within seven days of agreement or determination
of Net Financial Indebtedness in accordance with Schedule III to
Crown (on behalf of the Vendors) by way of further consideration
for the Shares and for the UK Aerosol Business and the Italian
Aerosol Business such amount in cash.
<PAGE> 37
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7. PRE-CLOSING MATTERS
7.1 Subject to Crown's right to remedy matters as referred to in clause 9.8,
pending Closing, Crown shall procure that the businesses of the
Divestiture Package Companies and of the UK Aerosol Business and of the
Italian Aerosol Business are carried on in the ordinary and usual course
and that no transaction outside the ordinary course of trading is carried
out without the prior written consent of US Can, such consent not to be
unreasonably withheld or delayed in the case of (m) and (r) below. Without
prejudice to the generality of the foregoing, any of the following matters
shall require the prior written consent of US Can:
(a) the modification of any of the rights attached to any shares in any
Divestiture Package Company or the creation or issue of any shares or
the grant of any option or lien over any shares or uncalled capital of
any Divestiture Package Company or the issue of any rights or
obligations convertible into or exchangeable for such shares;
(b) the capitalisation or repayment of any amount standing to the credit
of any reserve of any Divestiture Package Company or any
repayment or reduction of the share capital of any Divestiture Package
Company or the redemption or purchase of any shares or any other
reorganization of the share capital of any Divestiture Package
Company;
(c) except as required to satisfy local law the admission of any person
whether by subscription or transfer as a member of any Divestiture
Package Company or the sale, disposal or grant of any rights in
respect of the share capital of any Divestiture Package Company;
(d) the sale or disposal of, or the grant or termination of any rights
in respect of, any part of the undertaking or the assets of any
Divestiture Package Company or of the undertaking or assets of Crown
UK that are comprised within the UK Aerosol
<PAGE> 38
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Business or of the undertaking or assets of Crown Italy that are
comprised within the Italian Aerosol Business, except in the
ordinary course of business;
(e) the declaration or payment by any Divestiture Package Company of any
dividend or other distribution;
(f) any alteration to the Memorandum or Articles of Association (or
equivalent constitutional documents) of any Divestiture Package
Company;
(g) the giving by any Divestiture Package Company of any guarantee or
indemnity other than in the ordinary course of business;
(h) the making of capital commitments by any Divestiture Package Company
or in relation to the UK Aerosol Business or the Italian Aerosol
Business in excess of US$50,000 in aggregate (save where the
commitment to this expenditure is specifically disclosed in the
Disclosure Letter);
(i) the acquisition or sale by any Divestiture Package Company of any
shares of any other company or the participation by any Divestiture
Package Company in any partnership or joint venture;
(j) the borrowing of more than US$50,000 in aggregate (other than the
incurring of trade credit in the ordinary course of business) by
any Divestiture Package Company, or by Crown UK in connection with the
UK Aerosol Business or by Crown Italy in connection with the Italian
Aerosol Business;
(k) the creation or issue or allowing to come into being of any
mortgage, charge or encumbrance upon any part of the property or
assets or uncalled capital of any
<PAGE> 39
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Divestiture Package Company or any of the Shares or any part of the UK
Assets or the Italian Assets (other than liens in the ordinary course
of business) or the creation or issue of any debenture or
debenture stock or the obtaining of any advance or credit in any form
other than normal trade credit or as permitted by (j) above;
(l) the appointment of any person except as required to satisfy local
law as a director or other officer of any Divestiture Package Company
or the granting of any power of attorney by any Divestiture Package
Company;
(m) the appointment or dismissal other than for cause or any change in
the remuneration or terms of employment of any director or employee of
any Divestiture Package Company or of any UK Employee or Italian
Employee;
(n) the entry into, termination, amendment or variation of any material
contract, transaction or arrangement by any Divestiture Package
Company to or by Crown UK or Crown Italy which relates to the UK
Aerosol Business or the Italian Aerosol Business;
(o) the acquisition by any Divestiture Package Company or by Crown UK or
Crown Italy in relation to the UK Aerosol Business or the Italian
Aerosol Business respectively of assets of a value exceeding S50,000
on hire purchase or deferred sale terms;
(p) the entry into any derivative or any hedging transaction by any
Divestiture Package Company or by Crown UK or Crown Italy for the
carrying on of the UK Aerosol Business or the Italian Aerosol
Business except to cover the difference between the cost of production
in one currency and order of product in another so as to hedge the
resulting differential exposure;
<PAGE> 40
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(q) the negotiation or renegotiation of any collective bargaining or shop
agreement by any Divestiture Package Company or by Crown UK or Crown
Italy in relation to the UK Aerosol Business or the Italian
Aerosol Business;
(r) the passing of any shareholder resolution by any Divestiture Package
Company other than any resolution of a routine nature (including for
the approval of the accounts) or required to implement this Agreement
or required for the purposes of clause 7.4; or
(s) any agreement or arrangement to do any of the matters in subclauses
(a) to (r) above which is not permitted without the prior written
consent of US Can.
Any breach by Crown of this clause 7.1 shall be treated as though it
were a breach of a Warranty for the purposes of clauses 9.1 and 10.
7.2 Pending Closing Crown shall procure that all existing insurance
policies of the Divestiture Package Companies and those of Crown UK and
Crown Italy relating to the UK Aerosol Business and the Italian Aerosol
Business are maintained or that policies with reputable insurers providing
cover to at least the same extent as such existing policies are
substituted therefor.
7.3 To the extent that Crown is obliged by law so to do, Crown will inform and
consult with employees and their representatives in the UK and Italy
in relation to the sale of the UK Aerosol Business and the Italian Aerosol
Business respectively as soon as practicable after the date hereof for
which purpose US Can will supply Crown with the relevant information which
it requires as soon as practicable following Crown's request.
7.4 Notwithstanding any other provision of this Agreement and subject to
complying with all applicable requirements, Crown shall be entitled
without seeking the prior written consent of
<PAGE> 41
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US Can to procure or permit any of the Divestiture Package Companies prior
to Closing to capitalise into share capital of that Divestiture Package
Company, or to issue further share capital or receive the benefit of a
capital contribution with a view to the repayment of, any amount due from
it to Crown or any Crown Associate other than on normal trading account.
Nothing done or permitted to be done by Crown for that purpose will
constitute or give rise to a breach of Warranty (whether given at the date
hereof or at midnight on the 60th day after the date hereof) or of any
other provision of this Agreement or otherwise give rise to any liability
of Crown or any Crown Associate to US Can other than pursuant to the Tax
Deed.
7.5 Notwithstanding any other provision of this Agreement, nothing done with
the prior written consent of US Can shall give rise to a breach of clause
9.6 or, if the Warranties are repeated on the 60th day after the date
hereof, of any Warranties as so repeated. For the avoidance of doubt
satisfaction of the conditions set out in clause 2.1 or the entry into by
the Divestiture Package Companies and Crown UK and Crown Italy of the
Licence or any other thing done by Crown or any Crown Associate to the
extent expressly required by this Agreement (and provided that the doing
of such thing is reasonable in all the circumstances) will not constitute
a breach of the undertakings in clauses 7.1 or 9.6.
7.6 Pending Closing US Can undertakes to offer its unconditional and
irrevocable guarantee of the tenant's obligations of the lease referred in
paragraph 4 of Part 1 of Schedule IV with effect from Closing with a view
to securing the release with effect from Closing of the obligations of
Crown or any other Crown Associate pursuant to the existing guarantee in
respect thereof.
7.7 Pending Closing Crown shall, if necessary, procure that the licence
relating to the storage of petroleum at Southall, England (the "Petroleum
Licence") and all other licences for carrying on of the DP Businesses
shall be renewed and US Can and Crown shall use all reasonable
<PAGE> 42
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endeavours to ensure that with effect from Closing the Petroleum Licence
is transferred to the Purchaser of the UK Aerosol Business.
8. CLOSING
8.1 Subject to the due satisfaction or waiver of the conditions contained in
clause 2.1 and as otherwise provided in clause 2, and the provisions of
this clause, Closing shall take place at the offices of Crown's
Solicitors in Brussels on the Closing Date or on such other date and/or at
such other place or places as may be required to implement Closing in the
jurisdiction of each Divestiture Package Company and Crown UK and Crown
Italy or otherwise agreed between the parties.
8.2 Between signing of this Agreement and Closing Crown will arrange for US
Can to meet with key members of management of the Divestiture Package
Companies and the UK Aerosol Business and the Italian Aerosol Business. US
Can shall notify Crown at least three Business Days in advance of the
names of the relevant individuals it wishes to meet and an outline of the
matters it wishes to discuss. Crown will use all reasonable endeavours to
facilitate such meetings and shall be entitled to appoint a representative
who US Can will allow to attend such meetings. Save to the extent required
by law, US Can undertakes that prior to Closing no other contact will be
made by or on behalf of US Can or US Can's Associates with the DP
Employees, the UK Employees or the Italian Employees.
8.3 At Closing Crown shall procure that the net amounts (if any) owing to each
Divestiture Package Company other than on normal trading account
from any other Crown Asociate shall be repaid and, subject to requirements
of applicable law and following compliance with clauses 8.4 to 8.6 and 8.8
to 8.10, US Can shall procure that the net amounts (if any) owing from
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each Divestiture Package Company other than on normal trading account to
Crown or to any other Crown Associate shall be repaid.
8.4 On Closing in relation to the Shares:
(a) Crown shall procure in relation to CMB France the delivery to US Can
of:
(i) duly executed stock transfers ("ordre de mouvement") of the
Shares in CMB France and (if and to the extent requested by US
Can the shares in CMB France held by the French Individual
Shareholders) by the registered holders thereof in favour of US
Can (or as it may direct);
(ii) such other documents (including any power of attorney under which
any document required to be delivered under this clause has been
executed and any waivers or consents) as US Can may require to
enable US Can or as it directs to be registered as holders of the
Shares in CMB France and (if and to the extent required) the
shares in CMB France of the French Individual Shareholders;
(iii) subject to the proviso below, the register des mouvements de
titres (register of share transfers); the registre de presence
(board meeting attendance register); the registre des proces
verbaux des assemblees generales (register of shareholder
meetings) the registre des comptes d'actionnaires (share
register); the liste des actionnaires (shareholder list): the
registre des proces - verbaux des conseils d'administration
(board meeting register): the feuilles de presence aux assemblees
(shareholder meeting register)
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provided that in the case of (iii) above, if at Closing the same are
in the possession or control of CMB France, Crown need only deliver
written confirmation to that effect to US Can rather than delivering
the same at Closing.
(b) Crown shall procure in relation to CMB Spain the delivery to US Can
of:
(i) a notarial certificate of the resolution passed at a meeting of
the shareholder of CMB Spain approving the transfer of the
Shares in CMB Spain pursuant hereto;
(ii) certificates relating to the Shares of CMB Spain, duly delivered
by the Vendor to US Can;
(iii) the notarial deed of sale in the agreed terms relating to the
Shares of CMB Spain duly authorised in Spain by the Spanish
notary public designated by US Can and the notarial or public
deed evidencing the Vendor of CMB Spain's title to the Shares in
CMB Spain; and
(iv) subject to the proviso below, shareholder and board minute books,
declaration of sole shareholder and registration thereof and book
of contracts with sole shareholder
provided that in the case of (iv) above, if at Closing the same
are in the possession or control of CMB Spain Crown need only deliver
written confirmation to that effect to US Can rather than delivering
the same at Closing.
(c) Crown shall procure in relation to CMB Germany the delivery to US
Can of:
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(i) the deed of sale and assignment in favour or the Purchaser of CMB
Germany in the agreed terms relating to the Shares in CMB Germany
duly recorded by a German notary public or equivalent; and
(ii) a certified current abstract from the Commercial Register
together with written confirmation that there have been no
changes to the Commercial Register which need to be registered or
which may be registered since the status represented in the
abstract from the Commercial Register and documents showing the
uninterrupted chain of ownership in the Shares of CMB Germany.
(d) Crown shall procure in relation to CMB France, CMB Spain and CMB
Germany that the names of such companies are changed to such names not
including the words "Crown" "CMB" "Metalbox" "MB" or "Carnaud" or
words likely to be confused with the same as US Can shall have
notified to Crown within 7 days of the date hereof and as shall be
legally permissable, failing which to such names as Crown shall in
its sole discretion decide.
(e) Crown shall procure the delivery to the relevant Purchaser of the
title deeds to the UK Properties and the documents relating to
the title of the other Properties which are not under the possession
and control of the Divestiture Package Companies.
(f) Crown shall procure the delivery to US Can of the Tax Deed duly
executed by Crown.
(g) Crown shall deliver to US Can in relation to each of CMB France, CMB
Spain and CMB Germany:
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(i) subject to US Can nominating replacements to the extent required
by local law the resignations of all those directors
specified in Schedule II from their respective offices in the
relevant Divestiture Package Companies with a written
acknowledgement from each of them to the effect that he has no
claim against the relevant Divestiture Package Company in respect
of breach of contract, compensation for loss or office,
redundancy or on any other grounds whatsoever;
(ii) subject to US Can nominating replacements to the extent required
by local law the written resignations of the auditors
specified in Schedule II in the usual form;
(iii) If and to the extent required by US Can powers of attorney
executed by each of the Vendors in favour of the relevant
Purchaser to exercise the relevant Vendor's rights as
shareholders of the Divestiture Package Companies pending
registration of the transfers of all or any of the Shares;
(iv) powers of attorney in such form as US Can shall reasonably
require executed by each of the relevant Vendors of the
Divestiture Package Companies in relation to the execution of the
notarial deeds of sale of the Shares in each relevant Divestiture
Package Company.
8.5 On Closing in relation to the UK Aerosol Business Crown shall procure that:
(a) the Purchaser of the UK Aerosol Business is placed in
effective possession and control of the UK Aerosol Business and
there shall be delivered to such Purchaser all the UK Assets which
are capable of passing by delivery, together with all relative
documents of title and, where any of such UK Assets are in the
possession of a third party, at US
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Can's option, either procure that such third party acknowledges with
effect from Closing that he holds such UK Assets to US Can's order, or
deliver to such Purchaser a written instruction in the agreed
terms addressed to that third party directing him to hold such UK
Assets to such Purchaser's order;
(b) there is delivered to US Can such duly executed conveyances, and/or
transfers to enable the UK Properties to be vested in the terms
provided in Schedule IV in the Purchaser of the UK Aerosol Business
together with full vacant possession of the UK Properties;
(c) there is delivered to US Can a duly executed assignment from Crown UK
of the UK Goodwill and of the Licence in favour of the Purchaser
of the UK Aerosol Business in such terms as US Can shall reasonably
require together with all relative documents of title;
(d) there is delivered to US Can:
(i) all books of account, payroll records, income records,
stock and other records, information relating to customers and
suppliers and all price lists, price information, purchase
conditions, catalogues, sales, promotional and advertising
literature which relate to the UK Aerosol Business, including
(without limitation) the files concerning all the current
customers and suppliers of the UK Aerosol Business, the original
UK Contracts, the VAT records relating to the UK Aerosol Business
as required under section 49 VATA, materials relating to
the UK Intellectual Property Rights, relevant computer programs
which relate to the UK Aerosol Business and other books,
documents and other materials of any nature which relate to the
UK Aerosol Business or which are necessary to enable the
Purchaser of the UK Aerosol
<PAGE> 48
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Business to carry on the UK Aerosol Business provided that,
following Closing, Crown shall be given reasonable access to and
the right to take copies at its expense of any such documents
which relate in part only to the UK Aerosol Business;
(ii) all records of National Insurance, PAYE and income tax records
relating to all UK Employees duly completed and up to date:
(iii) the tax and accounting records relating to the UK Aerosol
Business;
(iv) duly executed assignments of the benefit of the rights
described in clause 4.1(h) in favour of the Purchaser of
the Aerosol Business in a form reasonably required by US Can; and
(v) duly executed transfers in favour of the Purchaser of the Aerosol
Business of authorizations granted under Part I of the
Environmental Protection Act 1990 in respect of the prescribed
processes at the UK Properties in a form reasonably required by
US Can.
8.6 On Closing in relation to the Italian Aerosol Business Crown shall
procure that:
(a) subject to Schedule Xl the Purchaser of the Italian Aerosol Business
is placed in effective possession and control of the Italian Aerosol
Business and there shall be delivered to such Purchaser all the
Italian Assets which are capable of passing by delivery, together with
all relative documents of title and, where any such Italian Assets
are in the possession of third party, at such Purchaser's option,
either procure that such third party acknowledges with effect from
Closing that such third party holds such Italian Assets to such
Purchaser's order, or that there is delivered to the
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Purchaser a written instruction in the agreed terms addressed to that
third party directing him to hold such Italian Assets to such
Purchaser's order;
(b) there is delivered to US Can a duly executed copy of the Italian
Transfer Agreement in favour of US Can or as it may direct together
with a duly executed assignment of the Licence from Crown Italy in
favour of the Purchaser of the Italian Aerosol Business in a form
reasonably required by US Can;
(c) there is delivered to the Purchaser of the Italian Aerosol Business:
(i) all books of account, payroll records, income records, stock and
other records, information relating to customers and suppliers
and all price lists, price information, purchase conditions,
catalogues, sales, promotional and advertising literature which
exclusively relate to the Italian Aerosol Business, including
(without limitation) a list of and the files concerning all the
current customers and suppliers of the Italian Aerosol Business,
the original Italian Contracts, and other books, documents and
other materials of any nature which relate exclusively to the
Italian Aerosol Business or which are necessary to enable such
Purchaser to carry on the Italian Aerosol Business provided that,
following Closing, such Purchaser shall be given reasonable
access to, and to take copies at its expense of, such
documents which relate in part only to the Italian Aerosol
Business;
(ii) the documents relating to the transfer of the Italian Employees
and all records relating to all Italian Employees duly
completed and up to date;
<PAGE> 50
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(iii) duly executed assignments in favour of the Purchaser of the
Italian Aerosol Business in such form as US Can reasonably
requires of the benefit of the rights described in clause 5.1(e).
8.7 As from Closing the provisions of Schedule XI (Operation of the
Italian Aerosol Business immediately following Closing) shall apply.
8.8 On or before Closing Crown shall cause a Board Meeting and/or shareholders'
meeting of each of the Divestiture Package Companies, to be duly convened
and held at which:
(a) (where relevant) the said transfers of the Shares and (to the extent
transferred) the shares in CMB France held by the French Individual
Shareholders shall be approved for registration (subject only and where
relevant to the transfers being duly stamped at the cost of US Can);
(b) in the case of the Divestiture Package Companies all existing powers
of attorney to operate with banks and all existing mandates and others
instructions to banks shall be revoked and shall be replaced
with alternative instructions in such form as US Can may require;
(c) the registered office of each Divestiture Package Company is changed
to such address as US Can may require subject to this not involving a
breach of local law and in any event not being the address of any
premises occupied by Crown or any other Crown Associate;
(d) the names of Divestiture Package Companies are changed to names
not including the words "Crown", "Metalbox", "Carnaud", "CMB", "MB"
or names likely to be confused with the foregoing in accordance with
the provisions of clause 8.4(d).
<PAGE> 51
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8.9 On Closing Crown and US Can will enter into the Transitional Services
Agreement.
8.10 On Closing Crown will deliver to the Purchaser a written confirmation
from Crown that there are no subsisting agreements between any of the DP
Businesses and Crown or any Crown Associate save for trading contracts in
the ordinary course of business or as contemplated by this Agreement.
8.11 On Closing US Can shall, following compliance with the provisions of
clauses 8.4 to 8.6 and 8.8 to 8.10 (inclusive):
(a) wire transfer to Crown at a bank account details of which will be
supplied to US Can prior to Closing the sum of $52.8 million by way of
payment of the Consideration for the Shares and for the UK Aerosol
Business and the Italian Aerosol Business;
(b) deliver to Crown Italy a duly executed counterpart copy of the Italian
Transfer Agreement; and
(c) deliver to Crown a duly executed counterpart copy of the Transitional
Services Agreement and of the Tax Deed.
Unless US Can has complied in full with its obligations under this
clause 8.11, Closing shall be deemed not to have occurred.
8.12 Subject to Schedule XI on Closing the risk of loss or damage to the
property in the UK Assets and the Italian Assets shall pass to US Can.
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8.13 The receipt by Crown of the amount to be paid to it pursuant to
clause 8.11 shall be an absolute discharge to US Can who shall not be
concerned to see to the application of any such amount.
8.14 As soon as is practicable following Closing US Can shall procure the
release of Crown, each Vendor and each other Crown Associate from the
guarantees relating to the obligations of the Divestiture Package
Companies to which it is a party and pending such release shall
indemnify each of the same against any liability howsoever arising under
any such guarantee forthwith upon written demand by or on behalf of
Crown. In any event US Can shall procure at its cost on or before 30
June 1997 the full, absolute and unconditional release of the
obligations of CarnaudMetalbox S.A. or any other Crown Associate of any
guarantee of the obligations of CMB France in relation to the lease of
the property at Laon.
8.15 As soon as practicable following Closing Crown shall procure the
release of each of the Divestiture Package Companies from all guarantees
of Crown and Crown's Associates (other than the Divestiture Package
Companies) obligations to which it is a party and pending such release
shall indemnify each of the same against any liability howsoever arising
under any such guarantee forthwith upon written demand by or on behalf
of US Can.
8.16 Notwithstanding the provisions of clauses 8.5(d)(i) and 8.6(c)(i) US Can
undertakes to Crown and to the Vendors not to use any promotional or
advertising literature or material, price lists and sale and purchase
contracts which are delivered at Closing in relation to the UK Aerosol
Business or the Italian Aerosol Business or which are in the possession
or control of the Divestiture Package Companies at Closing for any
purpose other than for its own informational purposes provided that the
Purchasers of the UK Aerosol Business and the Italian Aerosol Business
shall be entitled to use and reproduce in material produced by it the
whole or any part of the text thereof and any photographic material
comprised therein provided that no reference is made to Crown or any
Crown Associate.
<PAGE> 53
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8.17 US Can undertakes to Crown that with effect from Closing it will ensure
that the Licensed Intellectual Property Rights are only used by or in
the Divestiture Package Companies, the UK Aerosol Business and the
Italian Aerosol Business and in particular that it will ensure that any
Licensed Intellectual Property Rights will not be used by or in the
business of US Can or any other US Can Associate.
8.18 Notwithstanding that nothing in this Agreement gives US Can or any US
Can Associate the right to use any trade mark or branding of Crown or of
any Crown Associate (which right is expressly reserved to Crown or as it
directs):
(a) all UK Inventory, Italian Inventory acquired pursuant hereto
and the Stocks of any Divestiture Package Company at Closing
containing or exhibiting such mark or branding shall be usable by
the acquirer or the relevant Divestiture Package Company in the
ordinary course of business for a period not exceeding six months
from Closing;
(b) in respect of any lithographic plates which bear the Crown logo
and which prior to Closing are owned or used by a Divestiture
Package Company or in the UK Aerosol Business or the Italian
Aerosol Business, the Divestiture Package Companies and the persons
who acquire each of the Italian Aerosol Business and the UK Aerosol
Business pursuant hereto shall have the right to use such plates
for a period not exceeding six months from Closing.
8.19 In relation to the books and records of each Divestiture Package
Company and to those of the UK Aerosol Business or the Italian Aerosol
Business which are given to US Can or as it may direct at Closing US
Can undertakes to Crown to allow Crown and its nominees and professional
advisors access to such books and records (and, at Crown's expense, to
take copies of the same) on reasonable notice and with regard only to
matters relating directly or indirectly and to the extent they relate to
pre-closing items when requested by Crown.
<PAGE> 54
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9. Warranties
9.1 Crown hereby represents, warrants and undertakes to US Can in the terms
of the General Warranties and Tax Warranties and agrees that if any
Warranty is found to be untrue or incorrect or misleading or has not
been complied with, then, subject to the provisions of this Agreement,
Crown shall, on demand by US Can pay to US Can by way of indemnity an
amount equal to any and all liabilities, losses, claims, deficiencies,
depletion of assets, increased liabilities, costs or expenses ("Losses")
suffered or incurred by US Can or any of the DP Businesses acquired by
US Can pursuant hereto which arises from any breach of the Warranties or
which would not have arisen but for such breach or which exists and
would not have existed if the Warranty in question had been true and
correct PROVIDED THAT nothing in this clause shall allow US Can to
recover more than once any Loss arising in respect of the same breach or
set of circumstances.
9.2 The Warranties are given at the date hereof subject to (other than in
the case of the Warranties set out in section N of Schedule VI) the
matters fairly disclosed in the Disclosure Letter. If the Warranties are
given on the 60th day following the date hereof they will also be given
subject to (other than in the case of the Warranties set out in section
N of Schedule VI) matters fairly disclosed in the Disclosure Letter.
9.3 Each of the Warranties set out in each paragraph and each subparagraph
of Schedules VI and VII shall be separate and independent and save as
expressly provided shall not be limited by reference to any other
paragraph or subparagraph or anything in this Agreement or the
Schedules.
9.4 References to the knowledge or awareness of Crown in relation to any
Warranty shall be deemed to refer to such knowledge or awareness after
Crown has made reasonable enquiry
<PAGE> 55
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of Stephane Lacroix, Anibal Diaz, Alain Le Borgne, Joan Estrade,
Francois Souchay, George Woods, Richard Holdron, Gordon Cassidy and
Claudio Saviotti and of its advisers acting in relation to this
transaction in relation to the subject matter of that Warranty and Crown
shall only be liable in respect of any breach of such Warranty on this
basis. Crown shall only be liable for breach of a Warranty given in all
material respects or otherwise qualified by materiality in respect of
any matter if in the absence of such qualification the amount of the
Claim or the aggregate amount of the Claims arising out of such breach
would exceed S30,000.
9.5 The Warranties are given by reference to the facts and circumstances
existing at the date of this Agreement and, if Closing shall not have
occurred by then and unless Crown shall have exercised its right to
rescind pursuant to clause 2.5, as at midnight on the 60th day following
the date hereof by reference to the facts and circumstances then
existing.
9.6 Crown undertakes that, to the extent it is able, it shall not do, cause
or permit anything to be done before Closing which would constitute a
breach of any of the Warranties if given at any time down to and
including Closing or which would make any of the Warranties inaccurate
or misleading if they were so given by reference to the facts and
circumstances then existing. Any breach of Crown of this clause 9.6
shall be treated as though it were a liability for breach of a Warranty
for the purposes of clause 9.1 and 10.
9.7 US Can confirms to Crown for itself and for each Vendor that it has not
entered into this Agreement or any document entered into hereunder or
referred to herein in reliance upon any representation, warranty or
undertaking other than those expressly contained herein and acknowledges
that it has not relied on, and will make no claim in respect of any such
representation, warranty or undertaking made or supplied by or on behalf
of Crown or any Vendor. Without limiting the general nature of the
foregoing, US Can confirms that unless
<PAGE> 56
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and to the extent that the same is expressly warranted hereunder it has
not relied on and will make no claim in respect of:
(a) any budget, forecast or other projection of any nature made or
supplied by or on behalf of Crown, any Vendor or any Divestiture
Package Company; or
(b) any Data Room Information or any information in the
Descriptive Memorandum or in any presentation to US Can by or on
behalf of Crown or by or on behalf of any managers of any
Divestiture Package Company or of the UK Aerosol Business or of the
Italian Aerosol Business.
9.8 Crown undertakes to US Can that upon becoming aware of the actual,
impending or threatened occurrence of any event after the date of this
Agreement and prior to closing which might reasonably be expected to
cause or constitute a breach of any of the Warranties given by it or
which would result in the Warranties if so given not being true and
accurate at Closing with reference to the facts or circumstances then
existing it will forthwith give written notice thereof to US Can and,
subject to clause 9.6, if Crown, in its sole and unfettered discretion
so decides, it shall at its own cost take steps to prevent or remedy the
same.
9.9 Without prejudice to clause 10.17 Crown acknowledges and confirms to US
Can that its rights under this Agreement will not be affected by and the
Warranties are not subject to any investigation made by or on behalf of
US Can into the affairs of the DP Businesses or any statement,
representation or information made or supplied by or on behalf of Crown
or any Vendor save as fairly disclosed by the Disclosure Letter. Without
limiting the general nature of the foregoing, Crown acknowledges and
confirms that for this purpose, save to the extent that any matters are
fairly disclosed by the Disclosure Letter, US Can has no actual or deemed
knowledge of any Data Room Information.
<PAGE> 57
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9.10 None of the information supplied by any of the Divestiture Package
Companies or its directors or senior managers to Crown or any Crown
Associate, or its agents, representatives or advisers, in connection with
the Warranties and the contents of the Disclosure Letter or otherwise for
the purposes of this transaction shall be deemed a representation,
warranty or guarantee of its accuracy by the Divestiture Package Company
or its directors or senior managers (as appropriate) to Crown or any
Crown Associate, and Crown waives and shall procure that each Crown
Associate waives any claims against the Divestiture Package Company or
its directors or senior managers and which it might otherwise have in
respect of it. In the event that Crown or any Crown Associate shall bring
a claim against any agent, representative or adviser to any Divestiture
Package Company and recover an amount by way of damages from such agent,
representative or adviser and such agent, representative or advisor has
recovered an amount from such Divestiture Package Company in respect of
the subject of such claim Crown shall pay to the Purchaser by way of
indemnity an amount equal to the lesser of (i) the amount such
Divestiture Package Company has paid by way of damages to such agent,
representative or adviser (excluding costs) and (ii) the amount recovered
by Crown or any Crown Associate from such agent, or representative or
adviser.
9.11 The Warranties are addressed to US Can only and the benefit of the
Warranties shall not be assignable by US Can in whole or in part to any
person other than to a US Can Associate nor shall the Warranties survive
the sale, transfer or disposal by US Can of the subject matter of the
Warranty, other than an intra-group sale, transfer or disposal by US Can
or any other US Can Associate. Prior to any US Can Associate to which the
benefit of the Warranties has been assigned ceasing to be a US Can
Associate US Can shall procure that it shall transfer to US Can or
another US Can Associate the benefit of the Warranties so that the first
mentioned US Can Associate shall cease to be able to make any Claim.
10. LIMITATION ON WARRANTY CLAIMS
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10.1 Crown shall not have any liability in respect of any breach of any of
the General Warranties (other than Warranty N (Environmental)) given by
it unless US Can has served on Crown a written notice on or before two
years after the Closing Date giving reasonable details of the breach
including US Can's reasonable estimate of the amount of the liability of
Crown in respect thereof (which estimate shall not in any event impose
any limit on liability). Crown shall not have any liability in respect of
any breach of Warranty N (Environmental) unless US Can has served on
Crown a written notice on or before three years after the Closing Date,
giving reasonable details as aforesaid.
10.2 Crown shall not have any liability in respect of any breach of any of
the Tax Warranties given by it in relation to each relevant jurisdiction
unless US Can has served on Crown a written notice at or before the
expiry of the period in the relevant jurisdiction in which the tax
authorities in the relevant jurisdiction cease under the relevant
limitation period to be capable of recovering the relevant Taxation in
the absence of fraud. Such notice shall in each case give reasonable
details of the breach or Claim, including US Can's reasonable estimate of
the amount of the liability of crown in respect thereof.
10.3 Crown shall be entitled following the payment in full of any amount
determined or agreed in satisfaction of or with respect to any Claim to
US Can, by a notice in writing addressed to US Can, to require US Can so
far as it is able to assign or procure that the relevant Divestiture
Package Company or any entity which carries on the UK Aerosol Business or
the Italian Aerosol Business after Closing assigns the benefit of any
rights it may have in respect of the circumstances giving rise to such
Claim to Crown. If US Can is not able to assign or procure the assignment
as aforesaid Crown shall be entitled to require US Can to take or to
procure that the relevant Divestiture Package Company or any entity which
carries on the UK Aerosol Business or the Italian Acrosol Business after
Closing (the "Relevant Company") takes all such reasonable steps and
proceedings as Crown may in its reasonable discretion consider necessary
in order to obtain any payment, or relief in respect of or in connection
with any matter giving
<PAGE> 59
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rise to that Claim, and US Can will, at the request of Crown allow
Crown at its expense to have the reasonable conduct of all correspondence
and/or proceedings of any nature (including any claims against the
relevant insurers) arising in connection with any matter giving rise to
such Claim. Crown will keep US Can fully informed of the status of all
such disputed matters. Crown may thereafter require the Relevant Company
or the Purchaser to take all such reasonable steps or proceedings as Crown
may in its reasonable discretion consider necessary in order to mitigate
any loss giving rise to such Claim and US Can undertakes to procure that
the Relevant Company shall so act, subject to US Can and the Relevant
Company being indemnified against all reasonable costs and expenses
properly incurred by them as a result of so acting. For the purpose of
enabling Crown to exercise its rights under this clause 10.3, US Can
shall:
(a) give written notice to Crown of any rights which Crown may enjoy
under this clause as soon as practicable after such rights came to
the notice of US Can;
(b) make or procure to be made available to Crown or its duly authorised
representatives, and (if so requested by Crown) provide copies of,
all relevant books of account, records and correspondence of the
Relevant Company and permit Crown to ascertain or extract any
relevant information therefrom; and
(c) not admit any liability or agree any claim which may give rise or has
given rise to a Claim without the prior written consent of Crown.
10.4 Crown shall not be liable in respect of any breach of any Warranty if
and to the extent that the loss occasioned thereby has been recovered
under the same or any other Warranty or under the Tax Deed.
<PAGE> 60
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10.5 Crown shall not be liable in respect of a Claim or a claim under the Tax
Deed to the extent of:
(a) any amount which is included as a liability in or provided for in
respect of the subject matter of such Claim; or
(b) any amount by which the carrying value of any asset has been reduced
to take account of the subject matter of such Claim
in the Global Accounts. If any Claim or a claim under the Tax Deed is
made US Can shall use all reasonable endeavours to procure that Crown and
its advisers are given reasonable access at reasonable times to the
working papers underlying the Global Accounts in the possession of US Can
or any of US Can's Associates for the purposes of ascertaining whether
any, and if so what, amount is applicable to the Claim or a claim under
the Tax Deed for the purposes of this clause 10.5.
10.6 No party to this Agreement shall be entitled to rescind or repudiate
this Agreement for any reason before or after Closing except pursuant to
an express right conferred upon it pursuant hereto.
10.7 Crown shall not be liable to make any payment in respect of any Claim or
any claim under the Tax Deed unless:
(a) the amount to be paid in respect of any single Claim or claim
under the Tax Deed (or the aggregate amount to be paid in respect of
several Claims and claims under the Tax Deed arising out of
substantially the same facts) exceeds US$30,000 in which case subject
to (b) below Crown shall be liable for the whole amount and not just
the excess over US$30,000; and
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(b) the aggregate amount to be paid in respect of all Claims
together with claims under the Tax Deed exceeds US$1,500,000 (such
sum to consist only of Claims and claims under the Tax Deed not
excluded pursuant to clause 10.7(a)): and
(c) if such aggregate amount does exceed US$1,500,000 (such sum
consisting only of Claims and claims under the Tax Deed not excluded
pursuant to clause 10.7(a)), then Crown's liability shall not be
limited to the excess and the whole amount shall be recoverable in
full.
10.8 The total amount of the liability of Crown in respect of all Claims and
claims under the Tax Deed shall be limited to and in no event exceed the
sum of US$30,000,000.
10.9 Crown shall not be liable in respect of any Claim or a claim under the
Tax Deed in respect of any matters resulting from a change of accounting
policy or practice or the length of any accounting period of US Can or
the Relevant Company introduced after Closing other than to the extent
such change is required as a matter of law or to accord with good
accounting practice because the Relevant Company has failed to maintain
its accounts in accordance with such laws or good accounting practice.
10.10 Claims shall be actionable only by US Can or any person to whom it may
assign the benefit of the Warranties pursuant to clause 9.11 and no other
party shall be entitled to make any claim or to take any action
whatsoever against Crown under or arising out of or in connection
therewith.
10.11 If Crown pays to US Can an amount in respect of any Claim and US Can or
any US Can Associate or the Relevant Company, as the case may be,
subsequently becomes entitled to recover from a third party (including
any insurer or any taxation authority) a sum which is referable to that
Claim, US Can shall forthwith repay to Crown so much of the amount paid
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by Crown as does not exceed the sum recovered by US Can or any US Can
Associate or the Relevant Company, as the case may be, from the third
party less all costs and expenses of US Can, the US Can Associate or the
Relevant Company, as the case may be, reasonably incurred in recovering
the same adjusted for any net Tax liability, benefit or relief suffered
or enjoyed by US Can, any US Can Associate or the Relevant Company, as
the case may be, resulting from the same and the circumstances giving to
rise to Crown having made the first mentioned Payment to US Can.
10.12 No payment shall be due from Crown in respect of any Claim unless and
until US Can (or the Relevant Company as the case may be) has made any
payment or has otherwise suffered loss in respect of any corresponding
liability.
10.13 IF Crown pays any sum in respect of any Claim or any claim under the
Tax Deed or pursuant to the provisions of clauses 6.3 OR 6.4, the amount
of the Consideration paid by US Can for the Shares and for the UK Aerosol
Business and for the Italian Aerosol business shall be deemed to be
reduced pro rata by the amount of any such payment.
10.14 If US Can makes any Claim or any claim under the Tax Deed or gives
notice of any claim or any claim under the Tax Deed US Can shall, and
shall procure that the Relevant Company shall on a confidential basis
solely for the purpose of enabling Crown to assess the Claim or potential
Claim or the claim or potential claim under the Tax Deed at the request
of Crown:
(a) make available to Crown and its advisers such access to the
personnel of the Relevant Company and to any relevant records
and information as Crown may reasonably request in connection with
such Claim or potential Claim or such claim or potential claim under
the Tax Deed: and
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(b) procure, so far as it is able, that the auditors (past and
present) of the Relevant Company make available their audit working
papers in respect of audits of the Relevant Company's accounts for
any relevant accounting period in connection with such Claim or
potential Claim or such claim or potential claim under the Tax Deed
any reasonable costs properly incurred by US Can in so doing to be
for Crown's account.
10.15 Crown shall not be liable in respect of any breach of Warranty which is
reasonably capable of remedy except to the extent that the relevant
breach has not been remedied at Crown's cost after the expiry of 30 days
following receipt by Crown of a written notice from US Can giving
reasonable particulars of the relevant breach and requiring it to be
remedied.
10.16 US Can (and, if applicable, the Relevant Company) shall, prior to
making any Claim, be obliged to mitigate any loss or damage on a basis
consistent with its duty at law resulting from or arising as a
consequence of any circumstances giving rise to any Claim.
10.17 US Can acknowledges and confirms that at the time of entering into this
Agreement Mr T Stonich (having made all reasonable enquiries of Mr L
Messina and Salomon Brothers) does not have any actual personal knowledge
of any circumstances which will or are likely to give rise to a Claim or
a claim under the Tax Deed PROVIDED THAT this acknowledgment and
confirmation shall not apply in relation to such circumstances which are
the subject matter of Warranty N (Environmental).
10.18 In pursuing any Claim in relation to Taxation the provisions of clause
4 (Conduct of Claims) of the Tax Deed shall apply. Clause 2.2 of the Tax
Deed shall override anything to the contrary in this Agreement.
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11. PURCHASER WARRANTIES
11.1 US Can warrants to Crown:
(a) it is a company duly organized and validly existing under the
laws of its place of incorporation and has the power to enter into and
has duly authorised the execution of this Agreement and its
obligations under this Agreement constitute its legally valid and
binding obligations;
(b) it has full power and authority to enter into and perform this
Agreement without obtaining any consent, authorization, order or
approval of, or filing or registration with, any governmental
authority which is required for the execution and delivery by it and
Closing of this Agreement except for any consent, authorization,
order, approval, filing or registration that has been obtained or is
expressly provided for or contemplated by this Agreement; and
(c) no order has been made or petition presented or resolution
passed for the winding-up of it and there are no grounds on which any
such order could be made.
11.2 US Can warrants to Crown that it has sufficient funds available to it
to pay the Consideration and to consummate the transactions
contemplated by this Agreement.
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12. CONTRACTS
12.1 US Can at and with effect from Closing shall assume the obligations of
and become entitled to the benefits of Crown UK and Crown Italy under the
UK Contracts and the Italian Contracts respectively.
12.2 Until any required consent of the other contracting parties to the
assignment or novation of any of the UK Contracts or Italian Contracts is
obtained, Crown UK or Crown Italy, as applicable, shall to the extent
permitted by law hold the benefits under that UK Contract or Italian
Contract on trust for the Purchasers of the UK Aerosol Business and of
the Italian Aerosol Business respectively which US Can shall procure
shall, at their own cost, perform Crown UK and Crown Italy's obligations
under such UK Contract or Italian Contract.
12.3 Crown will and will procure that Crown UK and Crown Italy shall at US
Can's request jointly with US Can use all reasonable endeavours to enable
the Purchasers of the UK Aerosol Business and of the Italian Aerosol
Business to enjoy the benefits of and to enforce the UK Contracts and the
Italian Contracts against the other contracting parties including the
obtaining of all necessary consents to assignment or novation or otherwise
required thereunder. For the avoidance of doubt Crown shall, subject to
using its reasonable endeavours, not be subject to any further cost or
expense in fulfilling its obligation under this clause.
13. UK AND ITALIAN EMPLOYEES
13.1 The parties each consider that the sale of the UK Aerosol Business
pursuant hereto is the transfer of an undertaking for the purposes of the
Employment Regulations and that the sale of the Italian Aerosol Business
pursuant hereto is the transfer of a business as a going concern under
Article 2112 of the Italian Civil Code.
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13.2 Crown shall indemnify and keep indemnified the Purchasers of the UK
Aerosol Business and the Italian Aerosol Business against all losses,
costs, liabilities, expenses, actions, proceedings, claims, and demands
arising out of or in connection with, any claim by any UK Employee,
Italian Employee or any other employee or ex-employee of Crown Italy or
Crown UK (whether in contract or in tort or for remedy for unfair
dismissal, redundancy, equal pay, sex or race discrimination under the
Wages Act 1986 or for breach of statutory duty or without limitation of
any other nature) as a result of anything done or omitted to be done in
relation to the employment prior to Closing of the UK Employee, Italian
Employee or other such employee or ex-employee.
14. PENSIONS
The provisions of Schedule VIII shall have effect in relation to Crown's
Scheme.
15. PROPERTIES
The provisions of Schedule IV shall apply in relation to the Properties.
16. CONFIDENTIALITY AND ANNOUNCEMENTS
16.1 For the purpose of assuring the full benefit of the business and
goodwill of each DP Business and in consideration of the agreement of US
Can to purchase or procure the purchase of the Shares and the UK Aerosol
Business and the Italian Aerosol Business on the terms hereof, Crown
hereby agrees with US Can that Crown will not (and will use reasonable
endeavours to procure that Crown Associates do not) at any time hereafter
divulge or communicate to any
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person (other than on a confidential basis to officers, employees or
professional advisers of a Divestiture Package Company or of the UK
Aerosol Business or the Italian Aerosol Business whose position makes it
necessary to know the same or to US Can or its officers, employees or
professional advisers) any confidential information concerning the
business, accounts, financial or contractual arrangements or other
dealings, transactions or affairs (including without limitation
information acquired under clauses 8.5(d)(i) and 8.6(c)(i)) of any
Divestiture Package Company or of the UK Aerosol Business or the Italian
Aerosol Business which may be within or which may come to its knowledge
save as required by law or by the regulations on a relevant stock exchange
in any jurisdiction or the laws or regulations on foreign investments
and/or exchange control.
16.2 No announcement or information concerning this sale and purchase or any
ancillary matter shall be made or released before Closing to the public
or to the press (national, provincial, local or trade) or the suppliers
or customers of any Divestiture Package Company or of the UK Aerosol
Business or the Italian Aerosol Business by any of the parties hereto
without the prior written consent of Crown and US Can (such consent not
to be unreasonably withheld or delayed) PROVIDED that nothing shall
restrict the making by any party to this Agreement (even in the absence
of agreement by the other parties) of any statement or disclosure which
may be required by law, or by the regulations of a relevant stock
exchange in any jurisdiction.
17. NON-COMPETE
17.1 Subject to clause 17.2, Crown undertakes for a period of one year after
the Closing Date not to compete and to procure that no Crown Associate
competes with the DP Businesses for the sale of aerosol cans to customers
at the specific customer locations which were served by any Divestiture
Package Company, the UK Aerosol Business or the Italian Aerosol Business,
except to the extent that such customers at those specific customer
locations already purchase
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aerosol cans from Crown or other Crown Associates, and except, with the
approval of the Commission of the European Communities where the
prospective customer declines in good faith to purchase aerosol cans from
US Can or the Divestiture Package Companies or those US Can Associates who
carry on the UK Aerosol Business, the Italian Aerosol Business or the
business of any of the Divestiture Package Companies following Closing.
17.2 Where customers referred to in clause 17.1 above obtain their aerosol
can requirements from one or more other sources that is to say sources
independent of Crown or Crown Associates (each a "Non-DP Supplier"),
nothing in clause 17.1 shall apply to prevent Crown or any Crown Associate
competing with any Non-DP Supplier to supply such customer, provided that
the supply by the Divestiture Packaging Companies, the Italian Aerosol
Business and the UK Aerosol Business as carried on after Closing (taken as
a whole) to such customer is not materially lessened thereby.
17.3 Crown undertakes with US Can that it will not and will use reasonable
endeavours to procure that crown Associates do not at any time during the
period of twelve months following Closing, other than with the written
consent of the Commission of the European Communities, solicit or entice
away, or in the case of Key Personnel only, employ any DP Employee, UK
Employee or Italian Employee or knowingly do any act whereby any such
employee is encouraged to leave the employment of any Divestiture Package
Company or cease to be employed in relation to the UK Aerosol Business or
the Italian Aerosol Business, whether or not such employee would by reason
of leaving so commit a breach of his contract of employment (save that the
provisions of this clause 17.3 will not apply where the relevant Purchaser
or Divestiture Package Company has indicated in writing to such employee
or to Crown that it no longer wishes to employ such employee or has
unilaterally terminated his or her employment or, in the case of employees
other than Key Personnel, where the employee has served notice or
otherwise indicated that he wishes to terminate such employment). For the
purposes of clause 17.3 Key Personnel shall mean those persons listed in
Schedule XV except to the extent that such persons are not employed by
or agents of any DP Business at the date hereof or have prior to the date
hereof given notice of termination of their employment or agency.
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17.4 If any covenant or undertaking contained in any other provision of this
clause 17 were void but would be valid if the period of application were
reduced or if some part of the covenant or undertaking were deleted, the
covenant or undertaking in question shall apply with such modification as
is necessary to make it valid.
18. FURTHER ASSURANCE AND AVAILABILITY OF INFORMATION
18.1 Crown shall and shall procure that the Vendors shall perform such acts
and execute such documents as may be reasonably required and at no more
than a reasonable cost to Crown or such Vendors on or after Closing by US
Can for securing to or vesting in US Can the legal and beneficial
ownership of the Shares and of the UK Assets and the Italian Assets in
accordance with the terms and conditions of this Agreement and assuring
to US Can the rights hereby granted including the rights acquired under
clauses 4.1(g) and 5.1(e) hereof.
18.2 Crown shall cause to be made available to US Can all information in its
possession or under its control or that of a Crown Associate which US Can
may from time to time reasonably require after Closing relating to the
business and affairs of each Divestiture Package Company and of the UK
Aerosol Business and the Italian Aerosol Business and shall permit US Can
to have reasonable access to documents containing such information and at
the expense of US Can to take copies thereof.
18.3 Crown will provide to US Can following Closing all such information as
US Can may reasonably require for the purposes of its making any
required notification to the German Cartel Office of the acquisition by
US Can of CMB Germany.
18.4 If and to the extent that:
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(a) a debt is included in the UK Aerosol Business or the Italian
Aerosol Business and such debt arises from supplies of goods or
services made for the purposes of VAT (whether in the UK or Italy)
before Closing such that Crown UK or Crown Italy has accounted or is
liable to account for the VAT; and
(b) the debt proves bad or doubtful or there is a delay in payment
such that Crown UK or Crown Italy is or becomes entitled to bad debt
relief for the purposes of VAT under section 36 VATA or the equivalent
or any similar legislation or regulations in Italy
Crown UK or Crown Italy shall (if so requested by the relevant
Purchaser and indemnified for its costs and expenses) make a claim for and
generally use all reasonable endeavours to obtain such relief and shall
account to the Purchaser forthwith upon recovery for any amount recovered
from the relevant Tax authorities in respect thereof (and, for this
purpose, an amount is recovered when received either in cash or by way of
set off against or reduction of a liability for Tax).
18.5 With respect to any liability to Taxation in respect of the UK Aerosol
Business or the Italian Aerosol Business assumed by US Can or a Purchaser
under the provisions of this Agreement which falls due for payment, Crown
shall give (or procure that Crown UK or Crown Italy shall give) to US Can
or the Purchaser notice in writing specifying the amount of each such
liability, the date of payment and the identity of the payee insofar as
such information is not readily apparent from the Aggregate Working
Capital Statement and the books and records delivered at Closing in
respect of the UK Aerosol Business or the Italian Aerosol Business (as
the case may be), such notice to be given not less than ten business days
(in the territory concerned) before the due date in each case.
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19. UK RECEIVABLES AND ITALIAN RECEIVABLES
19.1 Crown shall procure that Crown UK and Crown Italy shall account to US Can
or as it may direct for amounts which they receive in respect of the UK
Receivables and the Italian Receivables after Closing.
19.2 Subject to any express intention to the contrary on the part of the
debtor, money received by Crown UK and Crown Italy from a person indebted
to Crown UK or Crown Italy both in respect of UK Receivables or Italian
Receivables and otherwise shall be deemed to have been paid in or towards
discharge of the oldest debts first.
20. FOREIGN EXCHANGE PROVISIONS AND INTEREST
20.1 Where, in this Agreement references are made to adjustments to the
Consideration or to the quantification of Claims or claims under the Tax
Deed or otherwise to monetary amounts, all amounts shall be specified in
US dollars and where necessary shall be converted to a US dollar
equivalent amount from the original currency:
(a) in the case of adjustments to the Consideration in accordance
with the provisions of Schedule III, at the rate quoted by Reuters on
the Business Day prior to Closing as being the British Bankers
Association settlement spot rate for the relevant foreign currency
against US dollars at 11.00 am on the Business Day prior to Closing;
and
(b) in the case of a Claim or a claim under the Tax Deed, at the
rate quoted by Reuters on the Business Day prior to the date of
notification of such Claim or claim under the Tax Deed as being the
British Bankers Association settlement spot rate for the relevant
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foreign currency against US dollars at 11.00 am on the Business
Day prior to the date of notification of such Claim or claim under
the Tax Deed.
20.2 If any party fails to make any payment hereunder on the due date or
within the applicable period for payment, such party shall also pay
interest to the payee on the amount for the time being outstanding
calculated on a daily basis (compounded quarterly until payment) at the
rate of 1 per cent per annum above the prime rate of Morgan Guaranty Trust
Company of New York for the time being in force on the basis of actual
days elapsed from the due date for payment or from the date of the expiry
of such period (as the case may be) until payment in full (after as well
as before judgment).
21. CONTINUING OBLIGATIONS
21.1 Each of the obligations, warranties, representations, indemnities and
undertakings accepted or given by Crown or US Can pursuant to this
Agreement (hereinafter called the "Obligations"), excluding any
Obligation fully performed at Closing, shall continue in full force and
effect notwithstanding Closing taking place.
21.2 Notwithstanding any rule of law or equity to the contrary any release
waiver or other arrangement which US Can or Crown agrees to or effects in
relation to the other in connection with any matter in relation to this
Agreement shall not, except as expressly stated in writing, affect the
rights and remedies of US Can or Crown (as the case may be) in respect of
any other matter.
22. COSTS
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22.1 Each party to this Agreement shall pay its own costs, charges and
expenses incurred in the negotiation, preparation, closing and
implementation of this Agreement (and the documents referred to herein).
22.2 All documentary, registration, notarial and other similar taxes
including, if applicable, German real estate transfer tax and any German
Cartel Office fees in relation to merger control clearance shall be borne
by US Can.
23. VAT
23.1 Crown and US Can intend that the sale of the UK Aerosol Business
pursuant to this Agreement shall be treated as a transfer of part of the
business of Crown UK as a going concern for the purposes of Section 49 of
the VATA and Article 5 of the Value Added Tax (Special Provisions) Order
1995 and shall be treated as neither a supply of goods nor a supply of
services for the purposes of the VATA.
23.2 Crown and Purchaser shall use all reasonable endeavours to secure that
the sale of the business is treated under the Value Added Tax (Special
Provisions) Order 1995 as neither a supply of goods nor a supply of
services.
23.3 If HM Customs & Excise expressly confirm in writing that Article 5 of
the Value Added Tax (Special Provisions) Order 1995 shall apply to the
sale of the UK Aerosol Business, then after Closing US Can shall procure
that the UK Assets acquired are used in carrying on the same kind of
business sufficient for the purposes of ensuring that Article 5 applies,
whether or not as part of any existing business of US Can, as that carried
on by Crown UK and authorises Crown to make such obligation known to HM
Customs & Excise.
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23.4 US Can shall procure that the Purchaser of the UK Aerosol Business
applies to register for VAT in accordance with the VATA before Closing
and notifies Crown of the relevant VAT registration number if obtained
before Closing.
23.5 If VAT shall finally be determined in writing by HM Customs & Excise to
be payable on the sale of the UK Aerosol Business because the sale is not
within Article 5 of the Value Added Tax (Special Provisions) Order 1995 by
reason of a breach of the obligations contained in any of clauses 23.3 or
23.4 US Can shall in addition to any amounts expressed in the Agreement to
be payable by US Can pay to Crown such VAT, such amount to be payable on
the later of ten Business Days after the production to US Can of a copy of
the express written determination of HM Customs & Excise and a VAT invoice
containing the details prescribed in Regulation 14 of the VAT Regulations
in respect thereof and forthwith after the Purchaser has recovered such
VAT either by way of repayment or by obtaining credit by way of reduction
of output tax (within the meaning of the VATA) otherwise payable. If US
Can pays an amount in respect of VAT and it is subsequently determined by
HM Customs & Excise in writing that no VAT was chargeable, Crown shall
forthwith on demand pay a sum equal to such amount to US Can.
23.6 If and to the extent that VAT in Italy shall be finally determined in
writing by the Italian tax authorities to be payable in respect of the
purchase of the Italian Aerosol Business US Can shall account or shall
procure that the Purchaser of the Italian Aerosol Business shall account
to Crown (on behalf of Crown Italy) for such VAT.
23.7 If and to the extent that such VAT shall be irrecoverable by the
Purchaser of the Italian Aerosol Business Crown shall pay to US Can an
amount equal to the amount of such VAT to the extent that it is
irrecoverable.
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23.8 US Can shall take and shall procure that all reasonable steps are taken
by the Purchaser of the Italian Aerosol Business with a view to ensuring
that such VAT is recoverable.
23.9 The provisions of clause 23.7 above shall not apply if US Can or the
Purchaser of the Italian Aerosol Business shall fail to pay any
registration or similar tax that is payable in respect of the purchase of
the Italian Aerosol Business.
24. NOTICES
24.1 Any notice or other communication to be given hereunder shall either be
delivered personally or sent by first class post or facsimile
transmission. The address for service of Crown and US Can shall be the
addresses stated at the head of this Agreement or such other address as
the relevant park may have previously notified in writing to the other.
All notices shall be deemed to have been served as follows:
(a) if personally delivered, at the time of delivery;
(b) if posted, at the expiration of 72 hours after the envelope containing
the same was delivered into the custody of the postal authorities; and
(c) if communicated by facsimile transmission, at the time of transmission
PROVIDED that, except in relation to a notice served pursuant to clause
2.5, where, in the case of delivery by hand or transmission by facsimile,
such delivery or transmission occurs after 6 pm on a Business Day or on a
day which is not a Business Day, service shall be deemed to occur at 9 am
on the next following Business Day.
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24.2 In proving such service it shall be sufficient to prove that personal
delivery was made, or that the envelope containing such notice was
properly addressed and delivered into the custody of the postal
authorities as a pre-paid first class letter or that the facsimile
transmission was made after obtaining in person or by telephone
appropriate evidence of the capacity of the addressee to receive the
same, as the case may be.
25. SEVERABILITY AND SUSPENSION OF RESTRICTIONS
25.1 If any provision or provisions of this Agreement (or of any document
referred to herein) is or at any time becomes illegal, invalid or
unenforceable in any respect, the legality, validity and enforceability
of the remaining provisions of this Agreement (or such document) shall
not in any way be affected or impaired thereby.
25.2 No provisions of this Agreement or any agreement or arrangement of which
it forms part by virtue of which this Agreement or such agreement or
arrangement is subject to registration under the Restrictive Trade
Practices Acts 1976 and 1977 shall take effect until the day after
particulars of this agreement or the agreement or arrangement of which it
forms part (as the case may be) have been furnished to the Director
General of Fair Trading pursuant to Section 24 of the Restrictive Trade
Practices Act 1976.
25.3 The provisions of this Agreement insofar that they relate solely to the
sale and purchase of CMB France shall become effective only after the
requirements of French law for consultation with the Comite d'Enterprise
have been carried out which Crown undertakes to do as soon as practicable
and in any event within seven Business Days after signature.
26. ENTIRE AGREEMENT AND VARIATION
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26.1 This Agreement (together with the documents referred to herein)
constitutes the entire agreement between the parties in relation to the
transactions referred to herein or therein and supersedes any previous
agreement between the parties in relation to such transactions.
26.2 No variation of any of the terms of this Agreement (or of any other
documents to be entered into as referred to herein) shall be effective
unless it is in writing and signed by or on behalf of each of the parties
hereto or thereto. The expression "variation" shall include any
variation, supplement, deletion or replacement however effected.
27. GENERAL PROVISIONS
The provisions of this Agreement, insofar as the same shall not have
been performed at Closing, shall remain in full force and effect
notwithstanding Closing. This Agreement may be executed in counterpart,
each of which when executed and delivered shall be an original, but all of
which when taken together shall constitute a single instrument.
28. GOVERNING LAW AND JURISDICTION
This agreement (together with all documents to be entered into as
referred to herein) shall be governed by and construed and take effect in
accordance with English law (provided that any necessary implementation by
share transfer deed or otherwise shall be governed by and take effect in
accordance with the mandatory laws of the relevant jurisdiction) and each
of the parties hereto hereby submits to the non-exclusive jurisdiction of
the High Court of England and agrees that in the event of any action
between any of the parties hereto being commenced in respect of this
Agreement or any matters arising under it, the process by which it is
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commenced (where consistent with the applicable court rules), may be served on
it in accordance with clause 24.
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IN WITNESS WHEREOF this Agreement has been entered into the day and
year first before written.
Crown Cork & Seal Company, Inc.
By /s/ Xavier Blaupain
----------------------
Xavier Blaupain
U.S. Can Corporation
By /s/ Timothy W. Stonich
----------------------
Timothy W. Stonich
<PAGE> 80
LIST OF OMITTED SCHEDULES
Schedule Number Description of Schedule
- --------------- -----------------------
I Part 1 - The Shares
Part 2 - Allocation of Consideration
II The Divestiture Package Companies
III The Combined Closing Accounts and Certificate of Net
Indebtedness
IV Part 1 - The Properties
Part 2 - Sale Conditions Relating to the U.K. Properties
V The License
VI General Warranties
VII Tax Warranties
VIII Pension Provisions
Appendix I - Actuarial Assumptions
Appendix II - Relevant Employees
IX Part 1 - U.K. Employees
Part 2 - Italian Employees
X Italian Assets
XI Provisions Concerning the Operation of the Italian Aerosol
Business Immediately Following Closing
XII Form of Transitional Services Agreement
XIII Form of Tax Deed
XIV Further U.K. Excluded Assets
XV Key Personnel
