Exhibit 99.2
Aleris International, Inc.
and
Corus Group plc
and
Societe generale de financement du Quebec
Share Purchase Agreement
for the sale and purchase of the Shares
(as defined in this agreement)
2006
CONTENTS
CLAUSE PAGE NO.
1. INTERPRETATION........................................................1
2. SALE AND PURCHASE....................................................10
3. CONDITIONS...........................................................10
4. PERIOD TO COMPLETION.................................................11
5. COMPLETION...........................................................12
6. OBLIGATIONS FOLLOWING COMPLETION.....................................14
7. COMPLETION ACCOUNTS..................................................15
8. POST COMPLETION UNDERTAKINGS.........................................15
9. SELLERS WARRANTIES...................................................16
10. APPORTIONMENT OF LIABILITY...........................................17
11. BUYER WARRANTIES.....................................................17
12. PROTECTION OF KNOW-HOW AND GOODWILL..................................17
13. CONFIDENTIAL INFORMATION.............................................19
14. GENERAL INDEMNITIES..................................................20
15. EMPLOYEES............................................................20
16. INTELLECTUAL PROPERTY................................................20
17. USE OF CORUS NAME....................................................21
18. ENVIRONMENTAL AND HEALTH AND SAFETY INDEMNITIES......................22
19. BOOKS AND RECORDS....................................................22
20. ANNOUNCEMENTS........................................................22
21. ASSIGNMENT...........................................................23
22. COSTS................................................................24
23. EFFECT OF COMPLETION.................................................24
24. FURTHER ASSURANCES...................................................24
25. ENTIRE AGREEMENT.....................................................24
26. VARIATIONS...........................................................24
27. WAIVER...............................................................25
28. INVALIDITY...........................................................25
29. NOTICES..............................................................25
30. COUNTERPARTS.........................................................26
31. GOVERNING LAW AND JURISDICTION.......................................26
32. AGENT FOR SERVICE....................................................27
33. THIRD PARTY RIGHTS...................................................27
SCHEDULE 1.................................................................28
Part A The Buying Subsidiaries............................................28
Part B The Selling Subsidiaries...........................................29
SCHEDULE 2.................................................................30
Particulars relating to the Companies......................................30
SCHEDULE 3.................................................................32
The Sellers Warranties.....................................................32
SCHEDULE 4.................................................................56
Sellers Protection Provisions..............................................56
SCHEDULE 5.................................................................60
The Properties.............................................................60
SCHEDULE 6.................................................................62
Pro Forma Completion Accounts..............................................62
SCHEDULE 7.................................................................63
Part A Accounting Policies and Procedures for the Completion Accounts.....63
Part B Preparation and Agreement of Completion Accounts...................64
SCHEDULE 8.................................................................67
[NOT USED].................................................................67
SCHEDULE 9.................................................................68
Completion Deliverables....................................................68
Part A Sellers' Deliverables..............................................68
SCHEDULE 9.................................................................69
Completion Deliverables....................................................69
Part B Buyer Deliverables................................................69
SCHEDULE 10................................................................70
SellerS Obligations in Period to Completion................................70
SCHEDULE 11................................................................72
Buyer Warranties...........................................................72
SCHEDULE 12................................................................73
Limitations On Environmental Indemnity Claims..............................73
SCHEDULE 13................................................................79
Agreed Form Documents......................................................79
THIS AGREEMENT is made on 2006
BETWEEN:
(1) ALERIS INTERNATIONAL, INC. whose principal place of business is
00000 Xxxxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxx 00000-0000,
Xxxxxx Xxxxxx, for itself and as agent for each of the Buying
Subsidiaries (the "BUYER");
(2) CORUS GROUP PLC (registered number 3811373) whose registered office
is at 00 Xxxxxxxx, Xxxxxx XX0X 0XX, Xxxxxx Xxxxxxx (the "CORUS");
and
(3) SOCIETE GENERALE DE FINANCEMENT DU QUEBEC whose principal place of
business is 600 rue de la Gauchetiere West, Suite 1500, Montreal,
Quebec H3B 4L8, Canada ("SGF" and together with Corus, the "SELLERS"
and each a "SELLER").
THE PARTIES AGREE AS FOLLOWS:
1. INTERPRETATION
1.1 In this agreement the following words and expressions and
abbreviations have the following meanings, unless the context
otherwise requires:
"ACCOUNTS" means the audited financial statements of LP, comprising
the balance sheet, profit and loss account and cash flow statement
(where applicable) of each Company, together in each case with the
notes thereon, directors' report and auditors' report (where
applicable), as at and for the financial period ended on the
Accounts Date;
"ACCOUNTS DATE" means 31 December 2005;
"ACTIVITIES" means any activity, operation or process carried out by
the Companies at any property whether or not currently owned,
occupied or used by such Companies;
"ACTUAL CASH" means the aggregate amount of cash and cash
equivalents in hand or credited to the account of each Company, and
including the Intra-Group Receivables, in each case as at close of
business on the Completion Date, and calculated in accordance with
clause 7 (Completion Accounts), and determined in accordance with
Canadian GAAP consistently applied, as set out in the Statement;
"ACTUAL DEBT" means the aggregate amount of indebtedness of the
Group for borrowed monies, indebtedness evidenced by any note, bond,
debenture or other debt security, the deferred purchase price of
property or services, and for finance and/or capitalized leases, and
liabilities arising in respect of interest rate and currency swap
arrangements (if any), including all interest accrued thereon, and
including any guarantee of the foregoing, and including the
Intra-Group Payables, but excluding current trade creditors, in each
case as at close of business on the Completion Date, and calculated
in accordance with clause 7 (Completion Accounts), and determined in
accordance with Canadian GAAP consistently applied, as set out in
the Statement, for the avoidance of doubt expressed as a positive
number;
"ACTUAL WORKING CAPITAL AMOUNT" means:
(a) the aggregate value of:
(i) inventory;
(ii) trade debtors net of provisions and pre-paid income
(excluding Intra-Group Receivables but including
intra-group trade debtors);
(iii) VAT debtors and receivables; and
(iv) other operational debtors,
(b) less the aggregate value of:
(i) trade creditors and deferred income (excluding
Intra-Group Payables but including intra-group trade
creditors);
(ii) VAT creditors and payables;
(iii) Tax and social security liabilities;
(iv) other operational creditors (including but not limited
to payables to fixed asset creditors); and
(v) any sale or retention bonuses (plus any Tax payable by
the Companies thereon) payable to Workers or to
employees of either Seller's Group working on
secondment in the Business which become payable (on a
contractual or discretionary basis) as a result of the
transactions contemplated by this agreement,
in each case of the Group, at close of business on the Completion
Date, as set out in the Statement and calculated in accordance with
clause 7 (Completion Accounts) and schedules 6 and 7. For the
avoidance of doubt, any item taken account of in calculating the
Actual Working Capital Amount shall not be taken account of in
calculating Actual Cash and Actual Debt, and vice versa;
"ASSOCIATED COMPANY" has the meaning given to it in sections 416 et
seq. of the TA;
"BOOKS AND RECORDS" means all notices, correspondence, orders,
inquiries, drawings, plans, books of account and other documents and
all computer disks or tapes or other machine legible programs
(excluding software);
"BUDGET" means the financial plan for the Business relating to the
period from 1 January 2006 to 31 October 2007 in the agreed form;
"BUSINESS" means the downstream aluminium business of the Group in
Canada comprising an aluminium rolled products business and
aluminium extensions business but excluding primary aluminium
operations;
"BUSINESS DAY" means a day (excluding Saturdays) on which banks
generally are open in London other than solely for the trading or
settlement of euro ((euro));
"BUSINESS NON-COMPLIANCE" means a failure to comply with
Environmental Law in relation to the current operation of the
Business at the Properties but excluding any contamination or
exposure Liabilities attributable to such operation;
"BUYER DEED OF RELEASE" means a deed releasing each member of each
Seller's Group from the Intra-Group Receivables in the form to be
agreed between the parties as soon as reasonably practicable
following the date hereof;
"BUYER'S ACCOUNT" means the account to be notified by the Buyer to
Corus (on behalf of the Sellers) in writing at least five Business
Days prior to Completion;
"BUYER'S GROUP" means the Buyer, any holding company of the Buyer
and the subsidiary undertakings and associated companies (including,
following Completion, each Company) from time to time of such
holding companies, all of them and each of them as the context
admits;
"BUYER'S SOLICITORS" means Fried Xxxxx Xxxxxx Xxxxxxx & Xxxxxxxx
(London) LLP, 00 Xxxx Xxxx, Xxxxxx XX0X 0XX;
"BUYING SUBSIDIARIES" means the persons whose names are set out in
part A of schedule 1 and any other person who is nominated as a
Buying Subsidiary by notice in writing from the Buyer to Corus (on
behalf of the Sellers) at any time prior to the date which is 20
Business Days before Completion;
"BUYER WARRANTIES" means the warranties of the Buyer set out in
schedule 11;
"CANADIAN CONSULTANT" has the meaning given to it in paragraph 8.1
of schedule 12;
"CANADIAN BANK LOAN" means the loan made to LP pursuant to a loan
agreement between LP, Royal Bank of Canada, as Documentation Agent
and Lender, and Comerica Bank, Canada Branch, as Lender, dated as of
22 August 2002, as amended by agreements dated 21 November 2003, 8
March 2004, 6 August 2004, 21 February 2005 and 19 July 2005;
"CANADIAN GAAP" means generally accepted accounting principles in
Canada determined in accordance with the Canadian Institute of
Chartered Accountants Handbook;
"CASH ADJUSTMENT" means the Actual Cash less the Estimated Cash
(and, for the avoidance of doubt, the resulting amount may be
positive or negative);
"COMMISSIONER" has the meaning given to it in clause 3.1;
"COMPANIES" mean the persons whose names are set out in schedule 2;
"COMPETITOR" means a third party which is a material competitor with
the relevant business;
"COMPLETION" means the completion of the sale and purchase of the
Shares in accordance with clause 5 (Completion);
"COMPLETION ACCOUNTS" means a document in the format set out in
schedule 6 to be prepared in accordance with clause 7 (Completion
Accounts) and part B of schedule 7 and on the basis of the
accounting policies and procedures set out in part A of schedule 7;
"COMPLETION DATE" means the date on which Completion occurs;
"CONDITIONS" means the conditions set out in clause 3.1
(Conditions);
"CONFIDENTIAL INFORMATION" means all information relating to;
(i) the provisions or the subject matter of this agreement or any
document referred to herein;
(ii) the negotiations relating to this agreement or any document
referred to herein; and
(iii) (in the case of the Buyer only) the members of each Seller's
Group and (in the case of the Sellers only) the members of
Buyer's Group and including in each case information relating
to their business or financial or other affairs which is not
publicly known;
"CORUS' GROUP" means Corus, any holding company of Corus and its
subsidiary undertakings and the associated undertakings (excluding
the Group) from time to time of such holding companies;
"DEBT ADJUSTMENT" means the Estimated Debt less the Actual Debt
(and, for the avoidance of doubt, the resulting amount may be
positive or negative);
"DEFAULT RATE" means 2 per cent. above the base rate from time to
time of National Westminster Bank plc;
"DELPHI CORPORATION" means Delphi Corporation Automotive Systems
LLC;
"DISCLOSED PENSION PLAN" has the meaning given to it in paragraph
19.1 of schedule 3;
"DISCLOSURE LETTER" means a letter of today's date together with the
attachments thereto addressed by the Sellers to the Buyer for the
purposes of clause 9.4;
"EBITDA" means profit or loss, expressed in euro ((euro)), before
taking into account interest, taxation, depreciation and
amortisation;
"ENCUMBRANCE" means any mortgage, charge (fixed or floating),
pledge, lien, hypothec, hypothecation trust, right of set off or
other third party right or interest (legal or equitable) including
any right of pre-emption, assignment by way of security, reservation
of title or any other security interest of any kind however created
or arising or any other agreement or arrangement (including a sale
and repurchase arrangement) having similar effect but excluding, for
the avoidance of doubt, any licences of Intellectual Property;
"ENVIRONMENT" means protection of the environment and natural
resources, any and all living organisms (including man), ecosystems,
property and the media of air (including air in buildings, natural
or man-made structures, below or above ground) water and land
(including under any water above or below surface);
"ENVIRONMENTAL CONSENT" means any consent, approval, Permit,
licence, authorisation, exemption, registration or permission
required under any Environmental Law;
"ENVIRONMENTAL EXPERT" has the meaning given to it in paragraph 8.1
of schedule 12;
"ENVIRONMENTAL INDEMNITY CLAIM" has the meaning given to it in
paragraph 1.1 of schedule 12;
"ENVIRONMENTAL LAWS" means any and all of the following: (a) any
international, European Union, national, state, provincial,
municipal, federal, provincial, regional or local laws (including
common law, statute law, civil, criminal and administrative law);
(b) any subordinate legislation and codes of practice, including
without limitation guidance notes (to the extent they have the force
of law), decisions, regulations, judgments, orders and decrees; and
(c) any judicial or administrative interpretation of each of the
foregoing; which in each case relate to the Environment or to the
occupational health and safety of employees, workers and
contractors, and which have the force of law from time to time,
whether before, on or after Completion, in relation to any Company,
provided that with respect to Unlisted Onsite Issues and with
respect to the warranties in paragraph 21 of schedule 3,
Environmental Laws shall be those having the force of law in
relation to any Company as of the date of Completion;
"ESTIMATED CASH" means the Sellers' good faith estimate of the
Actual Cash as notified in writing by Corus (on behalf of the
Sellers) to the Buyer no later than three Business Days prior to
Completion;
"ESTIMATED DEBT" means the Sellers' good faith estimate of the
Actual Debt as notified in writing by Corus (on behalf of the
Sellers) to the Buyer no later than three Business Days prior to
Completion (for the avoidance of doubt expressed as a positive
number);
"ESTIMATED INTRA-GROUP PAYABLES" means the Sellers' good faith
estimate of the Intra-Group Payables as notified in writing by Corus
(on behalf of the Sellers) to the Buyer no later than three Business
Days prior to Completion;
"ESTIMATED INTRA-GROUP RECEIVABLES" means the Sellers' good faith
estimate of the Intra-Group Receivables as notified in writing by
Corus (on behalf of the Sellers) no later than three Business Days
prior to Completion;
"EXCHANGE RATE" means, in relation to any amount in any particular
local currency required to be converted into euro at such rate as
set out in clause 1.2(l) and (m) and the spot rate of exchange
(closing mid-point) for that currency on the relevant date for
conversion specified therein as published in the London edition of
The Financial Times on the next Business Day following the relevant
conversion date or, where no such rate of exchange is published in
respect of that date, the rate quoted by National Westminster Bank
plc as at the close of business in London on that date;
"FINAL CASH CONSIDERATION" shall bear the meaning given to such term
in clause 6.3 (Obligations following Completion);
"FIRM" shall bear the meaning given to such term in paragraph 6 of
part B of schedule 7;
"GOVERNMENT AUTHORITY" means any court, tribunal, authority, agency,
regulator, commission, official or other instrumentality, or
governmental or quasi-governmental entity, or any supra-national,
national, regional, provincial, municipal, county, city or other
political subdivision or regulatory body;
"GP" means Corus Aluminium Inc.;
"GP SHARES" means the entire issued share capital of GP;
"GROUP" means the Companies;
"HAZARDOUS SUBSTANCE" means any natural or artificial substance
(whether solid, liquid, gas, noise, ion, vapour, electromagnetic or
radiation, and whether alone or in combination with any other
substance) which is regulated under Environmental Laws or is capable
of causing harm to or have a deleterious effect on the Environment;
"IDENTIFIED KNOWN ISSUES" means the ongoing site investigation
(including, for the avoidance of doubt, any offsite investigation
relating thereto) and remediation activities, in each case, up to
and including completion thereof (including final regulatory
approval or its equivalent) at Cap-de-la-Xxxxxxxxx, Canada;
"INFORMATION MEMORANDUM" means the information memorandum relating
to the Business prepared by Credit Suisse First Boston (Europe)
Limited and ABN AMRO Corporate Finance Limited and dated December
2005;
"INTELLECTUAL PROPERTY" means patents, trade marks, service marks,
design rights, trade names, rights in trade dress, copyrights,
(whether registered or not and any applications to register or
rights to apply for registration of any of the foregoing), rights in
inventions and discoveries, rights in Know-How, rights in trade
secrets and other confidential information, and all other
intellectual or industrial property rights of a similar or
corresponding character in any part of the world;
"INTERNET PRESENCE" means any public, private or reserved presence
on the worldwide web, multi-party extranet, virtual private network
or similar internet based, linked system;
"INTRA-GROUP PAYABLES" means the aggregate of all amounts owing
(including any interest payments thereon) from members of the Group
to members of each Seller's Group (excluding amounts owing in
respect of intra-group trading activities in the ordinary course of
trading) as at close of business on the Completion Date, calculated
in accordance with clause 7 (Completion Accounts) and part B of
schedule 7 and on the basis of the accounting policies and
procedures set out in part A of schedule 7;
"INTRA-GROUP RECEIVABLES" means the aggregate of all amounts owing
(including any interest payments thereon) from members of each
Seller's Group to members of the Group (excluding amounts owing in
respect of intra-group trading activities in the ordinary course of
trading) as at close of business on the Completion Date, calculated
in accordance with clause 7 (Completion Accounts) and part B of
schedule 7 and on the basis of the accounting policies and
procedures set out in part A of schedule 7;
"KNOW-HOW" means confidential or proprietary industrial, technical
or commercial information and techniques in any form (including
paper, electronically stored data, magnetic media, files and
micro-film) including, drawings, data, formulae, processes,
compositions, test results, reports, research reports, project
reports and testing procedures, shop practices, instruction and
training manuals, market forecasts, specifications, quotations,
lists and particulars of customers and suppliers, marketing methods
and procedures, show-how and advertising copy;
"LEASES" means the leases specified in the Disclosure Letter;
"LENDER" has the meaning given to it in clause 21.3;
"LIABILITIES" means all liabilities, duties, costs (including but
not limited to, reasonable legal costs and other expert advice) and
obligations of every description, whether deriving from contract,
tort, common law, statute or otherwise, whether present or future,
actual or contingent, ascertained or unascertained or disputed and
whether owed or incurred severally or jointly or as principal or
surety;
"LONDON STOCK EXCHANGE" means the London Stock Exchange plc;
"LOSSES" means all losses, Liabilities, costs (including, but not
limited to, reasonable legal costs and other expert advice), charges
and expenses, including those arising out of actions, proceedings,
claims and demands but excluding any direct or consequential loss
arising out of a loss of profit, loss of sales, loss of production
or business interruption;
"LP" means Corus LP;
"LP INTEREST" means all right, title and interest as a special
partner of LP;
"MANAGEMENT ACCOUNTS" means the management accounts for each Company
for the periods from 1 January 2006 to 28 February 2006 in the
agreed form;
"MATERIAL ADVERSE EFFECT" shall have the meaning given to it in
clause 3.1(d);
"NYSE" means the NYSE Group, Inc.;
"OFFSITE ISSUES" means any matters that might give rise to any
Liability under Environmental Laws: (i) arising from Activities and
not in relation to the Properties; or (ii) in relation to any
properties formerly owned, leased, operated, occupied or used by the
Group (including arising from Activities), in each case, occurring
or existing at or prior to Completion;
"PANEL" means the UK Panel on Takeovers and Mergers;
"PAYMENT ON COMPLETION" shall bear the meaning given to such term in
clause 2.3 (Sale and Purchase);
"PERMIT" means a permit, licence, consent, approval, certificate,
qualification, specification, registration and other authorisation
and a filing of a notification report or assessment necessary in any
jurisdiction for the proper and efficient operation of each
Company's business, its ownership, possession, occupation or use of
an asset or the execution and performance of this agreement;
"POLICY" has the meaning given to it in paragraph 9.1 of schedule 3;
"PROPERTIES" means the properties described in schedule 5 or any
part or parts thereof and "PROPERTY" shall mean any one of them;
"RELATED PERSON" means in relation to any party its holding
companies and the subsidiary undertakings and associated companies
from time to time of such holding company, all of them and each of
them as the context admits;
"RELEVANT PERCENTAGE" means 60 per cent. in relation to Corus and 40
per cent. in relation to SGF;
"SEC" means the US Securities and Exchange Commission;
"SELLER DEED OF RELEASE" means a deed releasing each Company from
the Intra-Group Payables, in the form to be agreed between the
parties as soon as reasonably practicable following the date hereof;
"SELLER'S ACCOUNT" means:
(a) in respect of Corus, the account to be notified by Corus to
the Buyer in writing at least five Business Days prior to
Completion; and
(b) in respect of SGF, the account to be notified by SGF to the
Buyer in writing at least five Business Days prior to
Completion;
"SELLER'S GROUP" means, in respect of each of the Sellers, its
holding company, subsidiary undertakings and associated companies
(excluding the Group) from time to time, all of them and each of
them as the context admits.
"SELLERS WARRANTIES" means the warranties of the Sellers set out in
schedule 3;
"SELLING SUBSIDIARIES" means the persons whose names are set out in
part B of schedule 1;
"SENIOR EMPLOYEE" means an employee of the Group or each Seller's
Group (as the case may be) in an executive position whose annual
salary is (euro)100,000 or more (gross of Tax);
"SHARE SALE AND PURCHASE AGREEMENT" means the share sale and
purchase agreement of even date in relation to the sale and purchase
of the entire issued share capital of the companies which operate
Corus' downstream aluminium business outside Canada;
"SHARES" means, collectively, the GP Shares and the LP Interest;
"STATEMENT" has the meaning given to it in clause 7.1;
"SUBSTANTIAL CUSTOMER" means the ten largest customers of the Group
measured by the share of the Group's gross revenues attributable to
them for the twelve months ending on 31 December 2005;
"SUBSTANTIAL SUPPLIER" means the ten largest suppliers to the Group
measured by the share of the Group's gross operating costs
attributable to them for the 12 months ending on 31 December 2005;
"SYSTEMS" means all computer hardware, software and networks;
"TA" means the Income and Corporation Taxes Xxx 0000;
"TAX" or "TAXATION" includes, without limitation, (a) taxes on
income, profits and gains, and (b) all other taxes, levies, duties,
imposts, charges, rates, assessments, governmental fees or dues and
withholdings of any nature, including any excise, property, value
added, sales, goods and services, harmonised sales, use, occupation,
transfer, alternative or add-on minimum taxes, franchise and payroll
taxes and any national insurance, social security contributions or
public health insurance payments, Canada, Quebec or other
governmental pension plan premium or contribution or employment
insurance premium or workers' compensation premium, employer health
taxes, municipal taxes, environmental taxes charges and levies,
sewerage duties, regional and local taxes, capital taxes, capital
profits taxes, lease taxes, severance taxes, property and occupation
taxes, stamp taxes, withholding taxes and transfer taxes, custom
duties, investment grants and secondary tax liabilities and any
payment whatsoever which the relevant person may be or become bound
to make to any person as a result of the discharge by that person of
any tax which the relevant person has failed to discharge, together
with all penalties, tax increases, charges and interest relating to
any of the foregoing or to any late or incorrect return in respect
of any of them, and regardless of whether such taxes, levies,
duties, imposts, charges, rates, assessments, governmental fees or
dues, withholdings, penalties and interest are chargeable directly
or primarily against or attributable directly or primarily to the
relevant person or any other person and of whether any amount in
respect of them is recoverable from any other person;
"TAX AUTHORITY" or "TAXATION AUTHORITY" means any person, authority,
body, agency or official entitled to enforce or collect Tax in any
jurisdiction;
"TAX DEED" means a deed of indemnity in the agreed form;
"TAXATION STATUTES" means all statutes, statutory instruments, royal
decrees, orders, enactments, laws, by-laws, directives, rules and
regulations, whether domestic or foreign decrees, providing for or
imposing any Tax;
"TOTAL ADJUSTMENT" means the aggregate sum of the Cash Adjustment,
the Debt Adjustment and the Working Capital Adjustment (and, for the
avoidance of doubt, the resulting amount may be positive or
negative);
"TRANSACTION DOCUMENTS" has the meaning given to it in clause
25.1(a);
"UK LISTING AUTHORITY" means the Financial Services Authority in its
capacity as the competent authority for the purposes of Part VI of
the Financial Services and Markets Xxx 0000 including, where the
context so permits, any committee, employee, officer or servant to
whom any function of the UK Listing Authority from time to time be
delegated;
"UNITED STATES BANKRUPTCY CODE" means Title 11 to the United States
Code;
"UNLISTED ONSITE ISSUES" means any contamination, exposure to
Hazardous Substances or Business Non-Compliance matters that might
give rise to any Liabilities under Environmental Laws, in each case
occurring or existing at or prior to Completion in relation to the
Properties;
"UNREGISTERED INTELLECTUAL PROPERTY" means Intellectual Property
which is not the subject of a registration or an application for
registration;
"VAT" means value added tax as charged pursuant to the 1st VAT
Directive 67/227/EEC and the 6th VAT Directive 77/388/EEC, and any
similar Tax including any Tax as charged pursuant to Part IX of the
Excise Tax Act (Canada) and An Act Respecting the Quebec Sales Tax
(Quebec);
"WASTE" means waste including anything which is discarded or
disposed of or which the holder intends or is required to discard or
dispose of as waste and anything which is abandoned;
"WORKERS" means the employees, directors, officers, workers and
self-employed contractors of the Companies; and
"WORKING CAPITAL ADJUSTMENT" means:
(a) if the Actual Working Capital Amount is less than
CAN$57,000,000, the Actual Working Capital Amount less
CAN$57,000,000;
(b) if the Actual Working Capital Amount is more than
CAN$63,000,000, the Actual Working Capital Amount less
CAN$63,000,000; and
(c) if the Actual Working Capital Amount is an amount equal to or
greater than CAN$57,000,000 and equal to or less than
CAN$63,000,000, zero,
(and, for the avoidance of doubt, the amount resulting under clauses
(a) or (b) above may be positive or negative).
1.2 In this agreement unless otherwise specified, reference to:
(a) "INCORPORATION", "INCORPORATED", "SHARE" and "SHAREHOLDER"
when used in relation to LP shall mean "FORMATION", "FORMED",
"PARTNERSHIP INTEREST" and "PARTNER" respectively, and similar
words shall have corresponding meanings respectively;
(b) a "SUBSIDIARY UNDERTAKING" is to be construed in accordance
with section 258 of the Companies Xxx 0000 (as amended) and a
"SUBSIDIARY" or "HOLDING COMPANY" is to be construed in
accordance with section 736 of the Companies Xxx 0000 (as
amended);
(c) a document in the "AGREED FORM" is a reference to that
document in the form approved and for the purposes of
identification signed by or on behalf of each party;
(d) "INCLUDES" and "INCLUDING" shall mean including without
limitation;
(e) a "PARTY" means a party to this agreement and includes its
assignees (if any) and/or the successors in title to
substantially the whole of its undertaking;
(f) a "PERSON" includes any person, individual, company, firm,
corporation, government, state or agency of a state or any
undertaking (whether or not having separate legal personality
and irrespective of the jurisdiction in or under the law of
which it was incorporated or exists);
(g) a "STATUTE" or "STATUTORY INSTRUMENT" or "ACCOUNTING STANDARD"
or any of their provisions is to be construed as a reference
to that statute or statutory instrument or accounting standard
or such provision as the same may have been amended or
re-enacted before the date of this agreement;
(h) "CLAUSES", "PARAGRAPHS" or "SCHEDULES" are to clauses and
paragraphs of, and schedules to, this agreement;
(i) "WRITING" includes any methods of representing words in a
legible form (other than writing on an electronic or visual
display screen) or other writing in non-transitory form;
(j) words denoting the singular shall include the plural and vice
versa and words denoting any gender shall include all genders;
(k) the time of day is reference to time in London, England;
(l) references in any Sellers Warranty or in this clause 1 to any
monetary sum expressed in euro shall, where such sum is
referable in whole or in part to a particular jurisdiction, be
deemed to be a reference to an equivalent amount in the local
currency of that jurisdiction translated at the prevailing
exchange rate applicable to that amount of euro by reference
to middle market rates quoted by National Westminster Bank plc
immediately before close of business in London on the date of
this agreement or, if such day is not a Business Day, on the
Business Day immediately preceding such day; and
(m) where any amount in any local currency is required to be
converted into euro for the purposes of preparing the
Completion Accounts and Statement, such amount shall be
translated into euro at the Exchange Rate for that local
currency three days before the Completion Date;
1.3 The schedules form part of the operative provisions of this
agreement and references to this agreement shall, unless the context
otherwise requires, include references to the schedules.
1.4 The index to and the headings and the descriptive notes in brackets
relating to provisions of Taxation Statutes in this agreement are
for information only and are to be ignored in construing the same.
2. SALE AND PURCHASE
2.1 Upon the terms and subject to the conditions of this agreement, each
of the Sellers shall procure the sale of and the Buyer, for itself
and as agent for the Buying Subsidiaries, shall purchase the full
legal and beneficial interest in the Shares with full title
guarantee and free from any Encumbrance in each case as at and with
effect from Completion together with all accrued benefits and rights
attached thereto and all dividends declared but unpaid after the
Accounts Date in respect of the Shares.
2.2 Each of the Sellers waives or agrees to procure the waiver of any
rights or restrictions conferred upon it in relation to the Shares
under, in the case of GP, its articles of incorporation, and with
respect to LP, its limited partnership agreement, or otherwise.
2.3 The total consideration for the sale and purchase of the Shares
shall be as set out in clause 6.3 (Obligations following
Completion). At Completion, on account of the total consideration
for the sale and purchase of the Shares, the Buyer, for itself and
as agent for the Buying Subsidiaries, shall pay to the Sellers in
cash an amount (the "PAYMENT ON COMPLETION") which shall be
(euro)61,600,000 less Estimated Debt plus Estimated Cash divided
between the Sellers in accordance with each of the Sellers' Relevant
Percentage.
2.4 There shall be no adjustment to the Payment on Completion in
relation to the Disclosed Pension Plans and the Sellers shall not be
liable for any fact, matter or circumstance in relation to the
Disclosed Pension Plans that the Buyer is aware of at the date of
this agreement.
3. CONDITIONS
3.1 Completion is conditional upon the fulfilment of each of the
Conditions as follows:
(a) completion of the Share Sale and Purchase Agreement pursuant
to its terms;
(b) the occurrence of any of the following events:
(i) the Commissioner of Competition (the "COMMISSIONER")
appointed under the Competition Act (Canada) issuing an
advance ruling certificate pursuant to Section 102 of
the Competition Act (Canada) with respect to the
proposed acquisition of the Shares by the Buyer; or
(ii) the Commissioner or her authorised representative
pursuant to Section 113(c) of the Competition Act
waiving the obligation of the parties to notify her and
supply information to her and issuing a no action
letter in a form satisfactory to the Buyer and the
Sellers acting reasonably; or
(iii) the applicable waiting period under Section 123 of the
Competition Act (Canada) expiring and the Commissioner
issuing a no action letter in a form satisfactory to
the Buyer and the Sellers acting reasonably;
(c) there not having occurred any change, event or occurrence
which has had or could reasonably be expected to have a
Material Adverse Effect, provided that such change, event or
occurrence is not caused by general economic conditions or by
facts or circumstances generally applicable to downstream
aluminium businesses unless such conditions, facts or
circumstances are shown by the Buyer to affect the Business to
a materially greater extent than they affect other downstream
aluminium businesses. For the purposes of this clause 3.1(c),
"MATERIAL ADVERSE EFFECT" means a material adverse effect on
the assets, liabilities or financial position of the Business
taken as a whole, being either: (i) a likely reduction in the
EBITDA of the Group as for the 12 month period immediately
following the date that all Conditions have been satisfied
(other than the Condition set out in this clause 3.1(c)), as
compared to EBITDA of the Group as set out in the Budget for
the same 12 month period, of (euro)5,000,000 or more; or (ii)
a one-off cost or liability affecting the Business which is
greater than (euro)9,160,000; and
(d) there not having occurred a material breach of the Sellers'
conduct of business obligations set out in clause 4 (Period to
Completion) and schedule 10.
3.2 The Buyer undertakes to use all reasonable endeavours to procure the
fulfilment of the Conditions set out in clauses (a) and (b) of
clause 3.1 above.
3.3 Each of the Sellers undertakes to use all reasonable endeavours to
procure the fulfilment of the Conditions set out in clauses (a) to
(b) inclusive and (d) of clause 3.1 above.
3.4 The Buyer may waive in whole or in part the Conditions set out in
clauses (c) or (d) of clause 3.1 above. The Conditions set out in
clause 3.1 (a) and (b) above may be waived only with the consent of
the Buyer and the Sellers.
3.5 If all of the Conditions (save for those compliance with which has
been waived in accordance with the terms of this agreement) have not
been fulfilled, or become incapable of satisfaction (as agreed by
each of the Sellers and the Buyer, each acting reasonably), on or
before 31 October 2006 this agreement shall terminate, with effect
from earlier of either that date, or the date on which any such
Condition becomes incapable of satisfaction.
3.6 Where the Buyer becomes aware before the Completion Date of any
matter which is a Material Adverse Effect within the meaning of the
Condition set out in clause 3.1(c) above, and which would,
therefore, give the Buyer the right to terminate the agreement, but
the Buyer elects (by written notice to Corus (on behalf of the
Sellers)) to waive such Condition, the Buyer's rights shall continue
to subsist (including without limitation those rights under the
Sellers Warranties) but the Sellers shall then have the right to
terminate this agreement immediately on written notice from Corus
(on behalf of the Sellers) to the Buyer, and following such notice
clause 3.7 shall apply.
3.7 If this agreement terminates in accordance with clauses 3.5 and 3.6
above, then the obligations of the parties shall automatically
terminate, save that the rights and liabilities of the parties which
have accrued prior to termination shall continue to subsist
(including without limitation those under clauses 20
(Announcements), 22 (Costs) and 25 (Entire Agreement) to 33 (Third
Party Rights) (inclusive)).
3.8 The Buyer and Corus (on behalf of the Sellers) shall keep each other
advised of the progress towards the satisfaction of their respective
obligations under clauses 3.2 and 3.3 above, respectively.
4. PERIOD TO COMPLETION
4.1 Other than with the prior written consent of the Buyer (such consent
not to be unreasonably withheld or delayed), and pending Completion,
each of the Sellers undertakes with the Buyer to procure that each
Company shall:
(a) operate its business and activities in their ordinary and
usual course so as to maintain the Business as a going concern
and in accordance in all material respects with the Budget;
and
(b) comply with each of the undertakings set out in schedule 10,
provided that each of the Sellers shall be permitted to take any
action requested in writing by the Buyer, and take any action that
is required in an emergency or disaster situation to the extent that
such action would minimize any adverse impact of such situation on
the Business.
4.2 Pending Completion, the Buyer and any person authorised by it shall
be given reasonable access to the Properties and to all the books
and records of each Company and the directors and employees of each
Company shall be instructed to give as soon as reasonably
practicable all such information and explanations as the Buyer or
any such person may reasonably request.
4.3 At least 10 Business Days prior to Completion, the Buyer and the
Sellers shall, acting reasonably, agree the allocation of the
Payment on Completion. Such allocation shall be determined by
applying, on a consistent basis, any applicable Tax laws or
practices and by taking account of any material Tax efficiency, that
may be available to the Buyer (or any member of the Group) or the
Sellers (or any member of each Seller's Group).
4.4 Prior to Completion, the Sellers shall have the right to request and
obtain from the relevant provincial and Canadian Tax Authorities the
necessary consent to change the fiscal period of LP to end
immediately prior to Completion. Corus (on behalf of the Sellers)
shall give written notice as soon as reasonably practicable to the
Buyer of the outcome of such request.
5. COMPLETION
5.1 The Buyer and each of the Sellers shall each use their reasonable
endeavours to ensure the Completion Date is on the last day of a
calendar month.
5.2 On Completion the Sellers shall deliver to, or, if the Buyer shall
so agree, make available to, the Buyer the items listed in part A of
schedule 9.
5.3 On Completion the Sellers shall procure the passing of board
resolutions (and, to the extent necessary, shareholder resolutions)
of each Company, or take any other action necessary in respect of
the:
(a) sanctioning (subject where necessary to due stamping) the
transfers, and where necessary the registration of such
transfers, in respect of the Shares; and
(b) appointing those individuals who the Buyer has notified the
Seller of at least five Business Days prior to Completion to
be the directors and secretary (or equivalent in any relevant
jurisdiction) of each Company.
5.4 On Completion the Buyer shall (for itself and as agent for and on
behalf of the relevant member(s) of the Buyer's Group (including the
Group)) make or procure the making of the cash payments referred to
in clause 2.3 (Sale and Purchase), which are expressed to be payable
at Completion, to the relevant Seller's Account, by way of
telegraphic transfer in immediately available funds.
5.5 On Completion, the Buyer (for itself and as agent for the Buying
Subsidiaries) shall deliver to, or, if the Sellers shall so agree,
make available to, the Sellers the items listed in Part B of
schedule 9.
5.6 If in any respect the obligations of the Sellers are not complied
with on Completion, the Buyer may:
(a) defer Completion to a date not more than 28 days after
Completion should have taken place but for the said default
(and so that the provisions of this clause 5, apart from this
clause 5.6(a), shall apply to Completion as so deferred); or
(b) proceed to Completion so far as practicable (without prejudice
to its rights hereunder),
by means of a notice to that effect in writing served on Corus (on
behalf of the Sellers).
5.7 The Buyer acknowledges and agrees that on Completion all insurance
cover provided in relation to the Business and the assets of the
Group pursuant to the Policies taken out by members of either
Seller's Group shall cease with effect from Completion (but, for the
avoidance of doubt, to the extent that the Group is able to claim
under such insurance cover, the Group shall still have the right to
make claims under such insurance cover in respect of the period
prior to Completion).
5.8 On Completion:
(a) the Buyer shall procure that the Estimated Intra-Group
Payables shall be repaid in full to the relevant members of
each Seller's Group in immediately available funds in the
relevant currency without any set-off, restriction or
condition and without any deduction or withholding (save only
as required by law) by telegraphic transfer to the relevant
Seller's Account; and
(b) each of the Sellers shall procure in relation to its relevant
Estimated Intra-Group Receivables that it shall be repaid in
full to the relevant members of the Group in immediately
available funds in the relevant currency without any set-off,
restriction or condition and without any deduction or
withholding (save only as required by law) by telegraphic
transfer to the Buyer's Account.
5.9 Each Seller who is a non-resident of Canada for the purpose of the
Income Tax Act (Canada) ( a "NON-RESIDENT SELLER") agrees to take
all reasonable steps to obtain and deliver to the Buyer, on or
before Completion, a certificate issued by the Minister of National
Revenue (Canada) pursuant to section 116 of the Income Tax Act
(Canada) in respect of the sale of the Shares to the Buyer.
5.10 If a certificate issued by the Minister of National Revenue (Canada)
pursuant to subsection 116(2) of the Income Tax Act (Canada) in
respect of the sale of the Shares to the Buyer, specifying a
certificate limit in an amount which is not less than the
Non-Resident Seller's proportionate share of the Payment on
Completion payable to such Non-Resident Seller, is not delivered to
the Buyer at or before Completion, the Buyer shall be entitled to
withhold from such Non-Resident Seller's proportionate share of the
Payment on Completion payable to such Non-Resident Seller at
Completion the amount that the Buyer may be required to remit
pursuant to subsection 116(5) of the Income Tax Act (Canada) in
connection with such purchase (in the case of each Non-Resident
Seller, the "WITHHELD AMOUNT"), which Withheld Amount will be held
in an interest-bearing trust account.
5.11 If, prior to the 27th day after the end of the month in which
Completion occurs, the Non-Resident Seller delivers to the Buyer a
certificate issued by the Minister of National Revenue (Canada)
pursuant to subsection 116(2) or subsection 116(4) of the Income Tax
Act (Canada) in respect of the sale of the Shares to the Buyer, the
Seller will promptly pay to the Non-Resident Seller an amount equal
to the lesser of (i) the Withheld Amount and (ii) the Withheld
Amount less the percentage specified in subsection 116(5) of the Tax
Act multiplied by the amount, if any, by which such Non-Resident
Seller's proportionate share of the Payment on Completion exceeds
the amount specified in such certificate as the certificate limit or
proceeds of disposition, together with any interest earned on the
amount withheld to the date of such payment (less any applicable
withholding Tax). The time at which a certificate is to be delivered
to the Buyer under this clause 5.11 will be extended to such later
time that the Canada Revenue Agency confirms in writing the Buyer
may continue to hold the amount withheld pursuant to clause 5.10
above.
5.12 If the Buyer has withheld an amount pursuant to clause 5.11 above
and the Non-Resident Seller does not deliver to the Buyer, prior to
the 27th day after the end of the month in which Completion occurs,
a certificate issued by the Minister of National Revenue (Canada)
pursuant to subsection 116(2) or subsection 116(4) of the Income Tax
Act (Canada) in respect of the sale of the Shares to the Buyer
specifying a certificate limit or proceeds of disposition equal to
or greater than the Non-Resident Seller's proportionate share of the
Payment on Completion payable to such Non-Resident Seller at or
before such time, the Buyer will remit to the Receiver General of
Canada the amount required to be remitted pursuant to subsection
116(5) of the Income Tax Act (Canada) and the amount so remitted
shall be credited to the Buyer as a payment to the Non-Resident
Seller on account of the Payment on Completion. The Buyer will pay
to the Non-Resident Seller any remaining portion of the Withheld
Amount, together with interest earned on the Withheld Amount (less
any applicable withholding Tax), prior to such remittance. The time
at which a certificate is to be delivered to the Buyer under this
clause 5.12 will be extended to such later time that the Canada
Revenue Agency confirms in writing the Buyer may continue to hold
the amount withheld pursuant to clause 5.11 above.
6. OBLIGATIONS FOLLOWING COMPLETION
6.1 Within five Business Days of agreement or determination of the Total
Adjustment in accordance with the provisions of clause 7 (Completion
Accounts) and part B of schedule 7:
(a) the Sellers, if and to the extent that the Total Adjustment is
negative, shall pay (in accordance with each of the Sellers'
Relevant Percentage) an amount equal to the Total Adjustment,
plus an amount in respect of interest thereon calculated at
the Default Rate from the Completion Date to the date of
payment under this clause 6.1, by way of telegraphic transfer
in immediately available funds to the Buyer's Account (for the
Buyer's own benefit and (to the extent applicable) the Buyer
as agent for any relevant Buying Subsidiary), which payment
(save for the interest thereon) shall take effect as an
adjustment, by way of reduction, in the Payment on Completion;
and
(b) the Buyer, if and to the extent that the Total Adjustment is
positive, shall pay (on its own account and (to the extent
applicable) the Buyer as agent for any relevant Buying
Subsidiary) an amount equal to the Total Adjustment, plus an
amount in respect of interest thereon calculated at the
Default Rate from the Completion Date to the date of payment
under this clause 6.1, by way of telegraphic transfer in
immediately available funds to the relevant Seller's Account
in accordance with each of the Sellers' Relevant Percentage,
which payment (save for the interest thereon) shall take
effect as an adjustment, by way of increase, in the Payment on
Completion;
(c) if any Intra-Group Payables included in the Total Adjustment
have not been paid to the relevant members of each Seller's
Group, the Buyer will procure their prompt payment;
(d) if any Intra-Group Receivables included in the Total
Adjustment have not been paid to the relevant member of the
Group, the relevant Seller will procure their prompt payment;
(e) if the Intra-Group Payables included in the Total Adjustment
are less than the Estimated Intra-Group Payables, the relevant
Seller shall pay to the Buyer (or such member of the Group as
the Buyer directs) a sum equal to the difference; and
(f) if any Intra-Group Receivables included in the Total
Adjustment are less than the Estimated Intra-Group
Receivables, the Buyer shall pay to the relevant Seller (or
such member of the relevant Seller's Group as the relevant
Seller directs) a sum equal to the difference.
6.2 If any sum due for payment under or in accordance with this
agreement by one party to another is not paid on the due date, the
party in default shall pay interest thereon (at the same time as
payment is made) at the Default Rate for the period from the due
date to the date of actual payment (both dates inclusive).
6.3 The final cash consideration for the sale and purchase of the Shares
shall be the Payment on Completion following any adjustment in
accordance with the provisions of clause 6.1 above (the "FINAL CASH
CONSIDERATION").
6.4 The Payment on Completion shall be allocated in accordance with
clause 4.3 except that, in the event that the Final Cash
Consideration is different from the Payment on Completion, the
parties shall agree such consequential adjustments as shall be
required to the amounts in such schedule (or failing such agreement,
either party shall be entitled to refer the matter to be resolved by
the Firm, in which event the provisions of paragraph 6 of part B of
schedule 7 shall apply save that the reference in such clause to
non-acceptance of the Completion Accounts shall be to non-acceptance
of the adjusted amounts in relation to any amounts allocated to the
member(s) of the Group which are not agreed by the parties).
6.5 The Payment on Completion and any additional payments to adjust the
Payment at Completion in accordance with the provisions of clause
6.1 above or to adjust the Final Cash Consideration in accordance
with any other provision of this agreement or of the Tax Deed, shall
be paid free and clear of all deductions or withholdings whatsoever,
save only as may be required by law.
6.6 If any deductions or withholdings are required by law to be made
from any of the sums payable in respect of interest under clause
6.1, the Buyer shall be obliged to pay to the Sellers (in accordance
with each Seller's Relevant Percentage), or the Sellers (in
accordance with each Seller's Relevant Percentage) shall be obliged
to pay to the Buyer, as the case may be, such sum as will, after the
deduction or withholding has been made, leave the Sellers, or the
Buyer, as applicable, with the same amount as it would have been
entitled to receive in the absence of any such requirement to make a
deduction or withholding.
6.7 Any payments due from the Buyer to the Sellers under clause 6.1 in
respect of a particular Company shall be set-off against any
payments due from the Sellers and the Buyer (or a member of the
Group) in respect of the same Company under that clause.
6.8 Prior to Completion, the Sellers shall have the right to request and
obtain from the relevant provincial and Canadian Tax Authorities the
necessary consent to change of the fiscal period of LP to end
immediately prior to Completion. Corus (on behalf of the Sellers)
shall give written notice as soon as reasonably practicable to the
Buyer of the outcome of such request.
7. COMPLETION ACCOUNTS
7.1 The Buyer and each of the Sellers shall use all reasonable
endeavours to procure that, after Completion, Completion Accounts in
relation to the Group on an aggregated basis, together with a
statement (the "STATEMENT") of:
(a) the Actual Working Capital Amount;
(b) the Working Capital Adjustment;
(c) the Actual Debt;
(d) the Debt Adjustment;
(e) the Actual Cash;
(f) the Cash Adjustment; and
(g) the Total Adjustment,
in each case, as at close of business on the Completion Date, are
prepared in accordance with the provisions of part 1 to 8 of part B
of schedule 7.
8. POST COMPLETION UNDERTAKINGS
8.1 At or as soon as practicable following Completion, each of the
Sellers undertakes (in relation to that Seller only) to the Buyer to
use all reasonable endeavours to ensure that each Company is
released from any guarantee, indemnity, bond, letter of comfort or
Encumbrance or other similar obligation given or incurred by it
prior to Completion which relates in whole or in part to debts or
other liabilities or obligations, whether actual or contingent, of a
member of the relevant Seller's Group and prior to such release each
Seller undertakes to the Buyer (on behalf of itself and as trustee
on behalf of each Company) to keep each Company fully indemnified
against any failure to make any such repayment or any liability (to
the extent such repayment or liability relates to any member of the
relevant Seller's Group) arising under any such guarantee,
indemnity, bond, letter of comfort or Encumbrance.
8.2 At or as soon as practicable following Completion, the Buyer
undertakes to each of the Sellers to use all reasonable endeavours
to ensure that each member of each Seller's Group is released from
any guarantee, indemnity, bond, letter of comfort or Encumbrance or
other similar obligation given or incurred by it which relates in
whole or in part to debts or other liabilities or obligations,
whether actual or contingent, of any Company and prior to such
release the Buyer undertakes to each of the Sellers (on behalf of
itself and as trustee on behalf of each member of the relevant
Seller's Group) to keep each member of the relevant Seller's Group
fully indemnified against any failure to make any such repayment or
any liability (to the extent such repayment or liability relates to
any Company) arising under any such guarantee, indemnity, bond,
letter of comfort or Encumbrance.
8.3 The Buyer undertakes and agrees to notify Industry Canada of the
Completion within 30 days of the Completion Date in accordance with
the Investment Canada Act.
9. SELLERS WARRANTIES
9.1 Each of the Sellers warrants to the Buyer (for itself and as trustee
for the Buying Subsidiaries) that the Sellers Warranties (excluding
the Sellers Warranties given in paragraphs 1 and 2.2(a) of schedule
3) and, in relation to the Sellers Warranties given in paragraphs 1
and 2.2(a) of schedule 3, each of the Sellers warrants to the Buyer
in relation to that Seller only, on the terms set out in schedule 3
as at the date of this agreement and each of the Sellers Warranties
shall be construed as a separate warranty and shall not be limited
by the terms of any of the other Sellers Warranties or by any other
term of this agreement (other than clause 9.5).
9.2 Any information supplied by or on behalf of any Company to or on
behalf of the Sellers in connection with the Sellers Warranties, the
Disclosure Letter or otherwise in relation to the business and
affairs of any Company shall not constitute a representation or
warranty or guarantee as to the accuracy thereof by any Company and
the Sellers hereby waive any and all claims which it might otherwise
have against any Company or any of their respective directors,
officers, employees, agents or advisers in respect thereof save in
respect of any rights it may have against any of them in respect of
fraud or fraudulent concealment.
9.3 Any claim under the Sellers Warranties is subject to the terms and
provisions of schedule 4.
9.4 The Sellers shall not be under any liability under the Sellers
Warranties in relation to any matter forming the subject matter of a
claim thereunder to the extent that the same or circumstances giving
rise thereto are fairly disclosed in the Disclosure Letter.
9.5 Save for any liability in respect of any claim arising for breach of
the Sellers Warranties set out in paragraph 3 (Accounts) of schedule
3, the Sellers shall only be liable (in accordance with each of the
Sellers' Relevant Percentage) in respect of a claim for breach of
warranty arising in respect of:
(a) any of the Properties, under the Sellers Warranties set out in
paragraph 18 (Properties) of schedule 3;
(b) matters relating Intellectual Property, under the Sellers
Warranties set out in paragraph 6 (Intellectual Property) of
schedule 3 and paragraph 11 (Information Technology and Data
Protection) of schedule 3;
(c) in respect of matters relating to Environment, under the
Sellers Warranties set out in paragraph 21 (Environmental and
Health and Safety matters) of schedule 3; and
(d) in respect of Tax, under the Sellers Warranties set out in
paragraph 20 (Taxation) of schedule 3 (without prejudice to
any claim arising under the Tax Deed).
9.6 The Buyer acknowledges and agrees that the Sellers do not, save as
set out in the Sellers Warranties, make any warranty as to the
accuracy of forecasts, estimates, projections, statements of intent
or statements of honestly expressed opinion provided to the Buyer
(howsoever provided) on or prior to the date of this agreement,
including without limitation in the Information Memorandum or the
Disclosure Letter or in the documents provided to the Buyer or its
advisers in the course of the Buyer's due diligence exercise.
9.7 Subject to clause 3, notwithstanding that the Buyer becomes aware at
any time (whether it does so by reason of any disclosure made in the
Disclosure Letter or otherwise) that there has been any breach of
the Sellers Warranties or any other term of this agreement, the
Buyer shall not be entitled to rescind this agreement or treat it as
terminated but shall be entitled to claim damages or exercise any
other right, power or remedy under this agreement or as otherwise
provided by law.
9.8 Any payment due from the Sellers in respect of any claim under this
agreement shall for all purposes be deemed to be and shall take
effect as a reduction in the Final Cash Consideration paid by the
Buyer, for itself and as agent for the Buying Subsidiaries, for the
Shares.
10. APPORTIONMENT OF LIABILITY
10.1 Neither Seller shall be liable for the obligations of the other
Seller under: (a) this agreement; or (b) in respect of any claim
under the Sellers Warranties, including, without limitation, those
arising out of fraud or fraudulent concealment or any act or
omission solely attributable to the other Seller.
10.2 The liabilities of each Seller in respect of any claim under the
Sellers Warranties shall be limited to the amount which is the same
percentage of the amount of that claim as the Relevant Percentage
applicable to that Seller (and for this purpose the amount of any
claim is the aggregate amount payable to the Buyer in satisfaction
of the claim under the Sellers Warranties, including all costs and
expenses (professional or otherwise), and including any amount in
respect of any liability to taxation, incurred by the Buyer, or any
deduction or withholding required to be made for or on account of
taxation, in relation to that claim under the Sellers Warranties).
11. BUYER WARRANTIES
The Buyer, for itself and as agent for the Buying Subsidiaries,
warrants to each of the Sellers in the terms of the Buyer Warranties
and each of the Buyer Warranties shall be deemed to be a separate
warranty.
12. PROTECTION OF KNOW-HOW AND GOODWILL
12.1 Subject to clause 12.2, each of the Sellers hereby undertakes to
procure that (except as otherwise agreed in writing with the Buyer)
neither of the Sellers nor any of their respective subsidiary
undertakings from time to time will either solely or jointly with
any other person (either on its own account or as the agent of any
other person) for a period of 18 months from Completion solicit or
accept the custom of any person in respect of aluminium-based goods
or services competitive with those manufactured or supplied by any
Company during the period of 24 months immediately prior to
Completion, such person having been a customer of the Company in
respect of such aluminium-based goods or services during such
period.
12.2 Nothing in clause 12.1 above shall prevent or restrict any member of
the relevant Seller's Group from (inter alia):
(a) carrying on or being engaged in or economically interested in
any business anywhere in the world which, immediately
following the Completion Date, it carries on or is engaged in
or economically interested in, or any reasonable extension
thereof;
(b) soliciting or accepting any custom from any customer referred
to in clause 12.1 above after such time as the Buyer's Group
ceases to carry on or be engaged in or economically interested
in such business to any material extent;
(c) being the holder of shares (conferring not more than five per
cent. of the votes which could normally be cast at a general
meeting of that company) or debentures of a company which is
engaged in any business and where the relevant Seller's Group
does not exercise any material influence within that Company;
(d) acquiring the whole or any part of a business or the share
capital of a company or group of companies whose business or a
part of whose business, which, in each case, includes
operations the carrying on of which would otherwise amount to
a breach of the undertaking contained in clause 12.1 above
(the "COMPETITIVE OPERATIONS"), as part of a larger
acquisition or series of related acquisitions if:
(i) such larger acquisition or series of related
acquisitions is not made with the sole or main purpose
of acquiring the Competitive Operations; and
(ii) the Competitive Operations' gross revenues represent
less than 20 per cent. of the gross revenues of the
entity or entities acquired (as at the date of such
entity's or entities' last audited accounts) (the
"ACQUIRED REVENUES"); and
(iii) where the revenues of the Competitive Operations
represent less than 20 per cent. but more than 10 per
cent. of the Acquired Revenues, the Competitive
Operations are sold or otherwise transferred within 12
months of the date of completion of such acquisitions
or series of related acquisitions; and
(iv) where the revenues of the Competitive Operations
represent 10 per cent. or less of the Acquired
Revenues, there shall be no obligation on the relevant
member of the relevant Seller's Group to sell or
transfer the Competitive Operations.
12.3 Each of the Sellers hereby undertakes to procure that (except as set
out in the Transaction Documents or as otherwise agreed in writing
by the Buyer) neither the Sellers nor any of their subsidiary
undertakings from time to time will either solely or jointly acting
with any other person (either of its own account or as the agent of
the other person) for a period of 18 months from Completion, induce,
solicit or endeavour to entice to leave the service or employment of
any member of the Group, any Senior Employee, provided that this
shall not restrict any member of the relevant Seller's Group from
issuing advertisements or otherwise taking steps to recruit (and/or
subsequently employing) any person which is or are not specifically
aimed at a particular employee or group of employees of any Company,
or employing any person who makes an unsolicited approach to a
member of the relevant Seller's Group.
12.4 The Buyer hereby undertakes to procure that (except as set out in
the Transaction Documents or as otherwise agreed in writing with
Corus (on behalf of the Sellers)) neither the Buyer nor any of its
subsidiary undertakings from time to time will either solely or
jointly with any other person (either on its own account or as the
agent of any other person) for a period of 18 months from
Completion, induce, solicit or endeavour to entice to leave the
service or employment of any member of each Seller's Group, any
Senior Employee, provided that this shall not restrict any member of
the Buyer's Group from issuing advertisements or otherwise taking
steps to recruit (and/or subsequently employing) any person which is
or are not specifically aimed at a particular employee or group of
employees of any member of each Seller's Group, or employing any
person who makes an unsolicited approach to the Buyer's Group.
12.5 The parties agree that the undertakings contained in this clause 12
above are reasonable and are entered into for the purpose of
protecting the Know-How and goodwill of the business of each Company
and that, accordingly, the benefit of the undertakings may be
assigned by the Buyer or each of the Sellers (as the case may be)
and its successors in title without the consent of Corus (on behalf
of the Sellers) or the Buyer (as the case may be).
12.6 Each undertaking contained in this clause 12 is, and shall be,
construed as separate and severable, and if one or more of the
undertakings is held to be against the public interest or unlawful
or in any way an unreasonable restraint of trade or unenforceable in
whole or in part for any reason, the remaining undertakings or parts
thereof, as appropriate, shall continue to bind each of the Sellers
or the Buyer (as the case may be).
12.7 If any undertaking contained in this clause 12 shall be held to be
void, but would be valid if deleted in part or reduced in
application, such undertaking shall apply with such deletion or
modification as may be necessary to make it valid and enforceable.
Without prejudice to the generality of the foregoing, such period
(as the same may have been reduced by virtue of this clause 12.7)
shall take effect as if reduced by successive months until the
resulting period becomes valid and enforceable.
13. CONFIDENTIAL INFORMATION
13.1 Subject to clauses 13.2, 16.2 or 16.3 (as applicable), the Buyer and
each of the Sellers shall not and shall procure that no other member
of the Buyer's Group or the relevant Seller's Group (as the case may
be) shall use or disclose to any person Confidential Information.
13.2 Clause 13.1 above does not apply to:
(a) disclosure of Confidential Information to or at the written
request of the Buyer or Corus (on behalf of the Sellers) (as
the case may be);
(b) use or disclosure of Confidential Information required to be
disclosed by law of any relevant jurisdiction or the NYSE, the
SEC, the UK Listing Authority, the London Stock Exchange, the
Panel or any governmental or regulatory body to which any
party is subject to or submits whether or not the requirement
for the disclosure of Confidential Information has the force
of law;
(c) disclosure on a strictly confidential basis of Confidential
Information to professional advisers for the purpose of
advising each of the Sellers or the Buyer (as the case may
be);
(d) Confidential Information which becomes generally known other
than by the Sellers' or the Buyer's (as the case may be)
breach of clause 13.1;
(e) disclosure of Confidential Information that the other party
has given prior written approval to the disclosure, such
consent not to be unreasonably withheld;
(f) disclosure of Confidential information to a member of each
Seller's Group or a member of the Buyer's Group (as the case
may be) which accepts the restrictions in the terms of this
clause; and
(g) disclosure of Confidential Information required by that party
to enable it to enforce its rights under this agreement,
PROVIDED THAT any such Confidential Information disclosed pursuant
to (a) and (b) of this clause 13.2 shall only be disclosed after
notice to the other parties.
13.3 With effect from Completion, the provisions of the confidentiality
agreement entered into between the parties and dated 13 March 2006
shall, in respect of Information (as defined in such confidentiality
agreement) relating to the Business, be terminated and the Buyer
shall be released from its obligations and liabilities thereunder in
respect of such Information (as defined in the aforementioned
confidentiality agreement), save as regards any antecedent breach.
For the avoidance of doubt, the Buyer's obligations in respect of
such Information (as defined in the aforementioned confidentiality
agreement) which does not relate to the Business shall continue
notwithstanding Completion. Pending Completion, if there is a
conflict between the terms of such confidentiality undertaking and
the terms of this clause, the provisions of this clause shall
prevail.
13.4 In the event of the Sellers becoming aware of any breach or
potential breach of any confidentiality undertaking given to the
Sellers by any person within the last two years in relation to a
potential sale by the Sellers of the Group or its assets and
undertakings, Corus (on behalf of the Sellers) shall notify the
Buyer promptly in writing of the breach or potential breach and, if
requested by the Buyer, shall use their reasonable endeavours to
enforce such confidentiality undertaking PROVIDED THAT the Buyer
shall reimburse the Sellers for all reasonable documented expenses
incurred in relation to such enforcement.
14. GENERAL INDEMNITIES
14.1 The Sellers undertake to the Buyer (for itself and as trustee for
each of the Buying Subsidiaries) that the Sellers shall indemnify
and keep indemnified (in accordance with each of the Sellers'
Relevant Percentage) the Buyer and any member of the Buyer's Group
and/or any Company in respect of, where the amount of any shortfall
between budgeted capital expenditure for the period 1 January 2006
to Completion (as set out in the agreed form capital expenditure
budget for the Business) and the actual amount of capital
expenditure expended in the same period exceeds (euro)500,000, the
amount of such shortfall.
14.2 The Buyer undertakes to the Sellers that the Buyer shall (as agent
for the Buying Subsidiaries), indemnify and keep indemnified (in
accordance with each of the Sellers' Relevant Percentage) the
Sellers and any member of each Sellers' Group in respect of, where
the amount of any excess between budgeted capital expenditure for
the period 1 January 2006 to Completion (as set out in the agreed
form capital expenditure budget for the Business) and the actual
amount of capital expenditure expended in the same period exceeds
(euro)500,000, the amount of such excess.
14.3 Each Seller undertakes to the Buyer that it shall indemnify and keep
indemnified (in accordance with each Sellers' Relevant Percentage)
the Buyer and any member of the Buyer's Group in respect of any
amounts received by the Sellers (or any one of them as the case may
be) or either of the Companies (as the case may be) from the Delphi
Corporation that is required to be repaid pursuant to the United
States Bankruptcy Code.
15. EMPLOYEES
Each of the Sellers undertakes to the Buyer (for itself and as
trustee for the Companies) that any person currently employed by a
member of either Seller's Group but who is at the date of this
agreement working on secondment within the Business will fulfil the
terms of such secondment.
16. INTELLECTUAL PROPERTY
16.1 In the event that, following Completion:
(a) a member of the Buyer's Group has retained, or pursuant to
this agreement, acquired any Intellectual Property which,
prior to Completion, was used exclusively or primarily by the
business of either Seller's Group, the relevant Seller may
notify the Buyer, and if it does, the Buyer shall procure that
such Intellectual Property is transferred to the relevant
Seller within a reasonable time following the date of such
notice;
(b) a member of either Seller's Group has retained any
Intellectual Property which, prior to Completion, was used
exclusively or primarily by the Business, the Buyer may notify
Corus (on behalf of the Sellers), and if it does, the relevant
Seller shall procure that such Intellectual Property is
transferred to the Buyer within a reasonable time following
the date of such notice.
Notice given under clauses 16.1(a) or (b) above shall set out
reasonable details of the Intellectual Property that is required to
be transferred. Any transfer made pursuant to this clause 16.1 shall
be made free of charge and at the Buyer's expense (in respect of
transfers made pursuant to 16.1(a)) or the relevant Seller's expense
(in respect of transfers made pursuant to clause 16.1(b)),
respectively.
16.2 The Buyer hereby grants to Corus with effect from Completion (for
itself and on behalf of the members of Corus' Group) a
non-exclusive, perpetual, worldwide, assignable (such assignment to
be in whole or part only on a sale or transfer of the business,
asset or entity to which such whole or partial licence relates),
royalty-free licence, with the right to sub-license (provided that
there shall be no right to sub-license such Unregistered
Intellectual Property for use in any business providing
aluminium-based goods or services except any such business operated
by Corus' Group from time to time), to use any Unregistered
Intellectual Property acquired by any member of the Buyer's Group
pursuant to the transactions contemplated hereby or retained by a
member of the Group which is at, or was prior to, Completion used
(but not exclusively or primarily) by the business of any member of
Corus' Group. On the sale or transfer of any business or entity
which has the benefit of this licence or any sub-licence granted
hereunder, such licence or sub-licence shall immediately terminate
on the completion of any such sale or transfer if it is to any
person who is, at the relevant time, a Competitor of the business of
the Buyer's Group. Any improvements or other changes made to any
such Unregistered Intellectual Property by a licensee or
sub-licensee benefiting from such licence or sub-licence shall be
owned by that licensee or sub-licensee.
16.3 Corus hereby grants to the Buyer with effect from Completion (for
itself and on behalf of the members of the Buyer's Group) a
non-exclusive, perpetual, worldwide, assignable (such assignment to
be in whole or part only on a sale or transfer of the business,
asset or entity to which such whole or partial licence relates),
royalty-free licence, with the right to sub-license (provided that
there shall be no right to sub-license such Unregistered
Intellectual Property for use in any business providing steel-based
goods or services except any such business operated by the Buyer's
Group from time to time), to use any such Intellectual Property
retained by Corus or Corus Primary Aluminium B.V. pursuant to the
transactions contemplated hereby which is at, or was prior to,
Completion, used (but not exclusively or primarily) by the Business.
On the sale or transfer of any business or entity which has the
benefit of this licence or any sub-licence granted hereunder, such
licence or sub-licence shall immediately terminate on the completion
of any such sale or transfer if it is to any person who is, at the
relevant time, a Competitor of the business of Corus' Group. Any
improvements or other changes made to any such Unregistered
Intellectual Property by a licensee or sub-licensee benefiting from
such licence or sub-licence shall be owned by that licensee or
sub-licensee.
16.4 For the purposes of this clause 16:
(a) "PRIMARILY" shall mean that the person using such Intellectual
Property "primarily" uses such Intellectual Property more than
the other party; and
(b) use of Intellectual Property shall be judged by reference to
the five years prior to Completion (or such other period as
the Buyer and each of the Sellers shall agree, acting
reasonably).
16.5 Subject to clause 16.3, the Buyer shall procure that all licences
(excluding, for the avoidance of doubt, any licence granted under
any Transaction Documents) of any Intellectual Property owned by
Corus' Group (or to be owned by Corus pursuant to clause 16.1(a)
above) granted to any member of the Group shall terminate at
Completion or as soon as practicable after Completion but no later
than 90 days following Completion.
16.6 Subject to Clause 16.2, Corus shall procure that all licences
(excluding, for the avoidance of doubt, any licence granted under
any Transaction Documents) of any Intellectual Property owned by the
Group (or to be owned by the Buyer pursuant to clause 16.1(b) above)
granted to any member of Corus' Group shall terminate at Completion
or as soon as practicable after Completion but no later than 90 days
following Completion.
17. USE OF CORUS NAME
17.1 The Buyer shall procure that, as soon as reasonably practicable
after Completion and in any event within six months of Completion,
each Company shall change its name so that it no longer includes the
word "Corus".
17.2 The Buyer shall procure that, within six months of Completion, the
word "Corus" (and related logos), shall not be used by any Company
on stationery, marketing or any other external written
communications (save for written communications with regulatory
authorities in circumstances where it is not practicable to cease to
use the name within that time) of or by such Companies. In addition,
following Completion the Buyer shall use its reasonable endeavours
to use replacement labelling, where practicable.
17.3 The Buyer shall use all reasonable endeavours to procure that the
Companies otherwise cease to use the word "Corus" (and related
logos) as soon as reasonably practicable after Completion.
17.4 Without prejudice to any of the foregoing provisions of this clause
16, the Buyer shall procure that all use of the word "Corus" by the
Companies will cease within 18 months of Completion, provided that
the Buyer and the Companies may continue to refer to "Corus" in any
factual, historical context or historical records.
17.5 Subject to and except as provided in the Transitional Services
Agreement, the Buyer shall procure that the Companies do not use any
domain name containing the word "Corus" after Completion, and if any
of the Group Companies is the registrant of, or otherwise holds or
controls, any domain name containing the word "Corus" after
Completion the Buyer shall (promptly after becoming aware of such
matter) procure that such domain name is transferred to Corus free
of charge.
18. ENVIRONMENTAL AND HEALTH AND SAFETY INDEMNITIES
The Sellers undertake to the Buyer (for itself and as trustee for
each of the Buying Subsidiaries) that the Sellers shall, or shall
procure that the relevant Selling Subsidiary shall, indemnify (in
accordance with each Seller's Relevant Percentage) and keep
indemnified (in accordance with each Seller's Relevant Percentage)
the Buyer and any member of the Buyer's Group and/or any Company in
respect of any Losses arising in respect of:
(a) any Identified Known Issues;
(b) any Unlisted Onsite Issues; and
(c) any Offsite Issues,
subject in each case to the provisions of schedule 12 (which
provisions shall prevail over any other provision of this agreement
to the extent that they conflict).
19. BOOKS AND RECORDS
19.1 The Buyer shall make available to each of the Sellers any Books or
Records of any member of the Group (or, if practicable, the relevant
parts of those Books or Records) which are required by the relevant
Seller for the purpose of dealing with its Tax and accounting
affairs and, accordingly, the Buyer shall, upon being given
reasonable notice by the relevant Seller and subject to the relevant
Seller giving such undertaking as to confidentiality as the Buyer
shall reasonably require, procure that such Books and Records are
made available to the relevant Seller for inspection (between 9.00
a.m. and 5.00 p.m. on Business Days) and copying (at the relevant
Seller's expense) for and only to the extent necessary for such
purpose and for a period of seven years from Completion.
19.2 The Sellers shall make available to the Buyer any Books or Records
of each Seller's Group (or, if practicable, the relevant parts of
those Books or Records) which are required by the Buyer for the
purpose of dealing with its Tax and accounting affairs and,
accordingly, the relevant Seller shall, upon being given reasonable
notice by the Buyer and subject to the Buyer giving such undertaking
as to confidentiality as the relevant Seller shall reasonably
require, procure that such Books and Records are made available to
the Buyer for inspection (between 9.00 a.m. and 5.00 p.m. on
Business Days) and copying (at the Buyer's expense) for and only to
the extent necessary for such purpose and for a period of seven
years from Completion.
20. ANNOUNCEMENTS
20.1 No party shall disclose the making of this agreement or its terms or
the existence or the terms of any other agreement referred to in
this agreement (except those matters set out in any press release in
the agreed form) and each party shall procure that each of its
Related Persons shall not make any such disclosure without the prior
consent of the other party unless disclosure is:
(a) to its professional advisers; or
(b) required by the law of any relevant jurisdiction or the rules
or standards of the London Stock Exchange, the UK Listing
Authority, the Panel, or the NYSE, the SEC or the rules and
requirements of any other regulatory body, whether or not the
requirement has the force of the law and disclosure shall then
only be made by that party:
(i) after it has taken all such steps as may be reasonable
and practicable in the circumstances to agree the
contents of such announcement with the other party
before making such announcement and provided that any
such announcement shall be made only after notice to
the other party; and
(ii) to the person or persons and in the manner required by
the law of the relevant jurisdiction or the rules or
standard of the London Stock Exchange, the UK Listing
Authority, the Panel, the NYSE, the SEC or such other
regulatory body or as otherwise agreed between the
parties,
provided that this clause 20.1 does not apply to announcements,
communications or circulars made or sent by the Buyer after
Completion to customers, clients or suppliers of any Company to the
extent that it informs them of the Buyer's acquisition of the Shares
or to any announcements containing only information which has become
generally available.
20.2 The restrictions contained in clause 20.1 above shall apply without
limit of time and whether or not this agreement is terminated.
21. ASSIGNMENT
21.1 This agreement is personal to the parties and, accordingly, subject
to clauses 12.5, 21.2 and 21.3, no party without the prior written
consent of the other parties shall assign, transfer, charge or
declare a trust of the benefit of all or any of any other parties
obligations nor any benefit arising under this agreement neither
shall any party delegate any of its obligations under this agreement
or subcontract their provision to any third party or agent
whatsoever.
21.2 The Buyer (for itself and as agent for the Buying Subsidiaries) and
each of the Sellers may (without the consent of Corus (on behalf of
the Sellers) or the Buyer, respectively) assign to any member of the
Buyer's Group or the relevant Seller's Group, as applicable, the
benefit of all or any of the relevant Seller's or the Buyer's
obligations, as applicable, or any benefit it enjoys under this
agreement provided however that such assignment shall be without
cost to and shall not result in any increased liability, or any
reduction in the rights of the Buyer or the relevant Seller, as the
case may be and further provided that such assignment shall not be
absolute but shall be expressed to have effect only for so long as
the assignee remains a member of the Buyer's Group or the relevant
Seller's Group, as applicable, and that immediately before ceasing
to be such a member the assignee shall assign the benefit to a
member of the Buyer's Group or the relevant Seller's Group, as
applicable.
21.3 The Buyer (for itself and as agent for the Buying Subsidiaries) may
assign or mortgage or charge to any provider (or security or
facilities agent of a provider) to it of debt finance (a "LENDER"),
or grant security to a Lender over, in each case by way of security
for financing, the benefit of the Sellers' obligations under this
agreement and any benefit arising under or out of this Agreement.
Notwithstanding any such assignment, unless Corus (on behalf of the
Sellers) has received written notice from a Lender of any
enforcement of any such security interest, each of the Sellers shall
deal solely with the Buyer (for itself and as agent for the Buying
Subsidiaries) and not any Lender in connection with all matters
arising out of this agreement.
22. COSTS
Unless expressly otherwise provided in this agreement each of the
parties shall bear its own legal, accountancy and other costs,
charges and expenses connected with the sale and purchase of the
Shares (including in relation to the negotiations leading up to the
sale and purchase of the Shares and the preparation, operation and
carrying into effect of this agreement and all other documents
entered into pursuant to it).
23. EFFECT OF COMPLETION
23.1 The terms of this agreement (insofar as not performed at Completion
and subject as specifically otherwise provided in this agreement)
shall continue in force after and notwithstanding Completion.
23.2 The remedies of the Buyer and each of the Sellers (as the case may
be) in respect of any breach of the Sellers Warranties or the Buyer
Warranties (as the case may be) shall continue to subsist
notwithstanding Completion.
24. FURTHER ASSURANCES
Each of the parties shall from time to time upon request from the
other do or procure the doing of all acts and/or execute or procure
the execution of all such documents in so far as each is able and in
a form reasonably satisfactory to the party concerned for the
purpose of transferring to the Buyer the Shares and otherwise giving
that party the full benefit of this agreement.
25. ENTIRE AGREEMENT
25.1 The Buyer and each of the Sellers acknowledge and agree that:
(a) this agreement together with any other documents referred to
in this agreement (together the "TRANSACTION DOCUMENTS")
constitute the entire and only agreement between the parties
and their respective Related Persons relating to the subject
matter of the Transaction Documents; and
(b) neither it nor any of its Related Persons have been induced to
enter into any Transaction Document in reliance upon, nor have
they been given, any warranty, representation, statement,
assurance, covenant, agreement, undertaking, indemnity or
commitment of any nature whatsoever (including, without
limitation, any information (written or oral) given in or
following presentations to the Buyer or its representatives by
management of the Group or each Seller's Group) other than as
are expressly set out in the Transaction Documents and, to the
extent that any of them have been, it unconditionally and
irrevocably waives any claims, rights or remedies which any of
them might otherwise have had in relation thereto;
provided that the provisions of this clause 25 shall not exclude any
liability which any of the parties or, where appropriate, their
Related Persons would otherwise have to any other party or, where
appropriate, to any other party's Related Persons or any right which
any of them may have to rescind this agreement in respect of any
statements made fraudulently by any of them prior to the execution
of this agreement or any rights which any of them may have in
respect of fraudulent concealment by any of them.
26. VARIATIONS
This agreement may be varied only by a document signed by or on
behalf of each of the Sellers and the Buyer.
27. WAIVER
27.1 A waiver of any term, provision or condition of, or consent granted
under, this agreement shall be effective only if given in writing
and signed by the waiving or consenting party and then only in the
instance and for the purpose for which it is given.
27.2 No failure or delay on the part of any party in exercising any
right, power or privilege under this agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any such
right, power or privilege preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
27.3 No breach of any provision of this agreement shall be waived or
discharged except with the express written consent of Corus (on
behalf of the Sellers) and the Buyer.
27.4 The rights and remedies herein provided are cumulative with and not
exclusive of any rights or remedies provided by law.
28. INVALIDITY
If any provision of this agreement is or becomes invalid, illegal or
unenforceable in any respect under the law of any jurisdiction:
(a) the validity, legality and enforceability under the law of
that jurisdiction of any other provision; and
(b) the validity, legality and enforceability under the law of any
other jurisdiction of that or any other provision,
shall not be affected or impaired in any way.
29. NOTICES
29.1 Any notice, demand or other communication given or made under or in
connection with the matters contemplated by this agreement shall be
in writing and shall be delivered personally or sent by fax or
prepaid first class post (air mail if posted to or from a place
outside the United Kingdom), telexes and email not being permitted:
In the case of the Buyer to:
Aleris International, Inc.
00000 Xxxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, Xxxx 00000-0000
Xxxxxx Xxxxxx
Fax: x0 000 000 0000
Attention: Xxxxx Xxxxx, Senior Vice-President, General Counsel
and Secretary
(with a copy to Xxxxxxxxxxx Xxxx, c/o, Fried Xxxxx Xxxxxx Xxxxxxx &
Xxxxxxxx (London) LLP, 00 Xxxx Xxxx, Xxxxxx XX0X 0XX)
In the case of Corus to:
Corus Group plc
00 Xxxxxxxx
Xxxxxx
XX0X 0XX
Xxxxxx Xxxxxxx
Fax: x00 000 000 0000
Attention: Company Secretary
(with a copy to Xxxx Xxxxxx, Xxxxxxxxx and May, Xxx Xxxxxxx Xxx,
Xxxxxx XX0X 0XX)
In the case of SGF to:
Societe generale de financement du Quebec
rue de la Gauchetiere
Ouest Bureau
Montreal
(Quebec)
X0X 0X0
Xxxxxx
Fax: x0 000 000 0000
Attention: Vice-president, Legal Affairs
and shall be deemed to have been duly given or made as follows:
(a) if personally delivered, upon delivery at the address of the
relevant party;
(b) if sent by first class post, two Business Days after the date
of posting;
(c) if sent by air mail, five Business Days after the date of
posting; and
(d) if sent by fax, when despatched;
provided that if, in accordance with the above provisions, any such
notice, demand or other communication would otherwise be deemed to
be given or made outside 9.00 a.m. - 5.00 p.m. on a Business Day
such notice, demand or other communication shall be deemed to be
given-or made at 9.00 a.m. on the next Business Day.
29.2 A party may notify the other parties to this agreement of a change
to its name, relevant addressee, address or fax number for the
purposes of clause 28.1 above provided that such notification shall
only be effective:
(a) on the date specified in the notification as the date on which
the change is to take place; or
(b) if no date is specified or the date specified is less than
five Business Days after the date on which notice is given,
the date falling five Business Days after notice of any such
change has been given.
29.3 The parties agree that the provisions of this clause shall not apply
in relation to the service of any writ, summons or judgement or
other document relating to or in connection with any Proceedings.
30. COUNTERPARTS
This agreement may be executed in any number of counterparts which
together shall constitute one agreement. Any party may enter into
this agreement by executing a counterpart and this agreement shall
not take effect until it has been executed by all parties.
31. GOVERNING LAW AND JURISDICTION
31.1 This agreement (and any dispute, controversy, proceedings or claim
of whatever nature arising out of or in any way relating to this
agreement or its formation) shall be governed by and construed in
accordance with English law.
31.2 Each of the parties to this agreement irrevocably agrees that the
courts of England shall have exclusive jurisdiction to hear and
decide any suit, action or proceedings, and/or to settle any
disputes, which may arise out of or in connection with this
agreement or its formation (respectively, "PROCEEDINGS" and
"DISPUTES") and, for these purposes, each party irrevocably submits
to the jurisdiction of the courts of England.
31.3 Each party irrevocably waives any objection which it might at any
time have to the courts of England being nominated as the forum to
hear and decide any Proceedings and to settle any Disputes and
agrees not to claim that the courts of England are not a convenient
or appropriate forum for any such Proceedings or Disputes and
further irrevocably agrees that a judgment in any Proceedings or
Disputes brought in any court referred to in this clause 31 shall be
conclusive and binding upon the parties and may be enforced in the
courts of any other jurisdiction.
32. AGENT FOR SERVICE
32.1 The Buyer irrevocably agrees that any notice or document may be
sufficiently and effectively served on it in connection with
Proceedings in England and Wales by service on Law Debenture
Corporate Services Limited, if no replacement agent has been
appointed and notified to Corus (on behalf of the Sellers) pursuant
to clause 32.3 below, or on the replacement agent if one has been so
appointed and notified to Corus (on behalf of the Sellers).
32.2 Any notice or document served pursuant to this clause shall be
marked for the attention of:
(a) Law Debenture Corporate Services Limited at Xxxxx Xxxxx, 000
Xxxx Xxxxxx, Xxxxxx XX0X 0XX or such other address within
England or Wales as may be notified to Corus (on behalf of the
Sellers) by the Buyer; or
(b) such other person as is appointed as agent for service
pursuant to clause 32.3 below at the address notified pursuant
to clause 32.3 below.
32.3 If the agent referred to in clause 32.1 above (or any replacement
agent appointed pursuant to this sub-clause) at any time ceases for
any reason to act as such, the Buyer shall appoint a replacement
agent to accept service having an address for service in England or
Wales and shall notify Corus (on behalf of the Sellers) of the name
and address of the replacement agent; failing such appointment and
notification, Corus (on behalf of the Sellers) shall be entitled by
notice to the Buyer to appoint such a replacement agent to act on
the Buyer's behalf PROVIDED THAT in cases where service is effected
upon a replacement agent appointed by Corus (on behalf of the
Sellers) in accordance with this sub-clause a copy of the relevant
notice or document shall at the same time be forwarded to the last
known business address of the Buyer.
33. THIRD PARTY RIGHTS
33.1 Any person (other than the parties to this agreement) who is given
any rights or benefits under clauses 6.1 (Obligations following
Completion), 9.2 (Sellers Warranties) and 24 (Entire Agreement) (a
"THIRD PARTY") shall be entitled to enforce those rights or benefits
against the parties in accordance with the Contracts (Rights of
Third Parties) Xxx 0000.
33.2 Save as provided in clause 33.1 above the operation of the Contracts
(Rights of Third Parties Act) 1999 is hereby excluded.
33.3 The parties may, amend, vary or terminate this agreement in such a
way as may affect any rights or benefits of any Third Party which
are directly enforceable against the parties under the Contracts
(Rights of Third Parties) Xxx 0000 without the consent of such Third
Party.
33.4 Any Third Party entitled pursuant to the Contracts (Rights of Third
Parties) Xxx 0000 to enforce any rights or benefits conferred on it
by this agreement may not veto any amendment, variation or
termination of this agreement which is proposed by the parties and
which may affect the rights or benefits of the Third Party.
IN WITNESS whereof this agreement has been executed on the date first above
written.
Signed by /s/ Xxxxxxxx Xxxxx )
for and on behalf of CORUS GROUP PLC )
in the presence of: /s/ Xxxxxxx Xxxxx )
Signed by /s/ Xxxx-Xxxxxxx Carrier )
/s/ Xxxxx Xxx )
for and on behalf of SOCIETE GENERALE DE FINANCEMENT )
DU QUEBEC in the presence of: /s/ Xxxxxxxx Xxxxxxx )
Signed by /s/ Xxxx Xxxxx )
for and on behalf of ALERIS INTERNATIONAL INC. )
in the presence of: /s/ Xxxxxxxxxxx Xxxx )