TRANSFER AGREEMENT by and between ARDAGH GROUP S.A. and ARDAGH METAL PACKAGING S.A. Dated as of February 22, 2021
TRANSFER AGREEMENT, dated as of February 22, 2021, by and between Ardagh Group S.A., a public limited liability company (société anonyme) organized under the laws of the Grand Duchy of Luxembourg with its registered office at 00, Xxx Xxxxxxx Xxxxxx, X-0000 Xxxxxxxxxx, Xxxxxxxxxx and registered with the Luxembourg Trade and Companies Register under registration number B160804 (“AGSA”), and Ardagh Metal Packaging S.A., a public limited liability company (société anonyme) organized under the laws of the Grand Duchy of Luxembourg with its registered office at 00, Xxx Xxxxxxx Xxxxxx, X-0000 Xxxxxxxxxx, Xxxxxxxxxx and registered with the Luxembourg Trade and Companies Register under registration number B251465 (“AMPSA”).
WHEREAS, as of the date hereof, AGSA, indirectly through the AMP Entities (other than AMPSA), is engaged in the business of developing, manufacturing, marketing and selling metal beverage cans and ends and providing related technical and customer services (the “AMP Business”);
WHEREAS, AMPSA is a newly formed wholly-owned subsidiary of AGSA;
WHEREAS, AGSA, AMPSA, Gores Holdings V, Inc., a Delaware corporation (“GHV”), and Ardagh MP MergeCo Inc., a Delaware corporation and a wholly owned subsidiary of AMPSA, have entered into a Business Combination Agreement, dated as of the date hereof (the “BCA”), which, among other things, provides that, as a condition to GHV’s obligations to close the transactions contemplated by the BCA, the AMP Transfer and the other transactions contemplated by this Agreement shall have been completed;
WHEREAS, upon the terms and subject to the conditions set forth in this Agreement, AGSA and its Subsidiaries will effect the AMP Transfer through a series of transactions in accordance with the Steps Plan (as defined in the BCA), that will result in all of the AMP Equity Interests being directly or indirectly owned by AMPSA in exchange for aggregate consideration consisting of (a) $2,315,000,000, payable in cash (in USD or the EUR equivalent thereof (based on an exchange rate as of a date to be agreed by the parties hereto) or both) in a series of transactions, including contributions for shares and the repayment of intercompany payables, (b) 484,956,250 shares, each with a par value of EUR 0.01, of AMPSA to be issued against contributions in kind made by AGSA to AMPSA (“Shares”), (c) a promissory note issued by a Subsidiary of AMPSA in the amount of $1,085,000,000, and (d) if the transactions contemplated by the BCA are consummated, a contingent right to receive an additional 60,730,000 Shares in accordance with the terms and subject to the conditions set forth in Section 3.6 of the BCA or if the transactions contemplated by the BCA are not consummated, such other consideration in form and amount as agreed by the parties hereto (the consideration set forth in clauses (a), (b), (c) and (d), the “AGSA Consideration”); and
WHEREAS, in connection with the AMP Transfer, AGSA will cause (a) the AGSA Retained Subsidiaries to transfer to one or more AMP Entities any assets and Liabilities held by the AGSA Retained Subsidiaries that are primarily related to the conduct of the AMP Business or that will be used by the AMP Entities to provide services to the AGSA Entities following the AMP Closing Date under the Services Agreement, and (b) the AMP Entities to transfer to one or more
AGSA Retained Subsidiaries any assets and Liabilities held by the AMP Entities that are primarily related to the conduct of the AGSA Retained Business or that will be used by the AGSA Entities to provide services to the AMP Entities following the AMP Closing Date under the Services Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the covenants and agreements contained in this Agreement, and intending to be legally bound hereby, the parties hereto hereby agree as follows.
“Action” means any action, suit, proceeding, arbitration, claim, demand, litigation, prosecution, contest, investigation, inquiry, hearing, inquest, audit, complaint, dispute or other legal recourse, in each case, by or before a Governmental Authority or arbitration tribunal, whether civil, criminal, administrative, disciplinary or otherwise.
“Affiliate” means, with respect to any specified Person, any other Person directly or indirectly controlling or controlled by, or under common control with, such specified Person; provided, that, for the purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by Contract or otherwise.
“Agreement” means this Transfer Agreement between the parties hereto and all amendments hereto made in accordance with the provisions of Section 7.6.
“AMP Employee” means each employee or service provider (who is a natural person) of any AMP Entity, other than any Specified Employee.
“AMP Employee Liabilities” means all Liabilities of any AGSA Entity or AMP Entity with respect to any current or former AMP Employee and his or her dependents and beneficiaries deriving from the AMP Employee’s employment with any AGSA Entity or AMP Entity, whether or not such Liabilities arose pursuant to a Plan, applicable Law or otherwise, including any such Liabilities under any AGSA Retained Plan or any Plan sponsored or maintained by any third parties.
“AMP Entities” means the Persons set forth on Exhibit A and any other Subsidiaries of AMPSA, from time to time.
“AMP Equity Interests” means all of the equity and other ownership interests in the Persons set forth on Exhibit A, other than AMPSA.
“AMP Plan” means a Plan sponsored or maintained by an AMP Entity (and not sponsored or maintained by an AGSA Entity), other than any Specified Plan.
“AGSA Entities” means, for purposes of this Agreement, AGSA and its Affiliates, other than any AMP Entity.
“AGSA Retained Business” means the businesses of AGSA (other than the AMP Business).
“AGSA Retained Employee” means (i) each employee or service provider (who is a natural person) of any AGSA Entity and (ii) each Specified Employee.
“AGSA Retained Employee Liabilities” means all Liabilities of any AGSA Entity or AMP Entity with respect to any current or former AGSA Retained Employee and his or her dependents and beneficiaries deriving from the AGSA Retained Employee’s employment with any AGSA Entity or AMP Entity, whether or not such Liabilities arose pursuant to a Plan, applicable Law or otherwise, including any such Liabilities under any AMP Plan or any Plan sponsored or maintained by any third parties.
“AGSA Retained Plan” means (i) each Plan that is sponsored or maintained by any AGSA Entity and (ii) each Specified Plan.
“AGSA Retained Subsidiaries” means the Subsidiaries of AGSA, other than the AMP Entities.
“Applicable Transfer Regulations” means the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 of Ireland (or any similar legislation governing the automatic transfer of employment in other jurisdictions).
“BCA Closing Date” shall have the meaning ascribed to “Closing Date” in the BCA.
“Business Day” means a day other than (i) a Saturday or Sunday or (ii) any other day on which banks located in Xxxxxxxxxx Xxxx, Xxxxxxxxxx are required or authorized by Law to be closed for business.
“Collective Bargaining Agreement” means any written agreement with an Employee Representative Body impacting the terms, conditions or liabilities of, to or in connection with, the AMP Employees.
“Contract” means any legally-binding contract, agreement, indenture, note, bond, loan or credit agreement, instrument, lease, commitment, mortgage, deed of trust, license, power of attorney, guaranty or other arrangement or obligation, whether written or oral, in each case, as amended and supplemented from time to time and including all schedules, annexes and exhibits thereto.
“Employee Representative Body” means any works’ council, labor union, trade union or similar employee representative body in any jurisdiction.
“Encumbrance” means any encumbrance, mortgage, fixed or floating charge, pledge, lien, restriction, guarantee, trust, right to acquire, option or right of pre-emption or first refusal, assignment, hypothecation, security interest, title retention, legal or equitable third party right or interest, including any assignment by way of security or trust arrangement for the purpose of providing security, encroachment, deed of trust or deed to secure debt, recorded or unrecorded easement, right of way, covenant, condition, license, reservation, subdivision and other defects of title of any kind or rights of others for rights of way, utilities and similar purposes that adversely affect real property, or, in any case, any agreement to create any of the foregoing.
“ERISA” means the United States Employee Retirement Income Security Act of 1974, as amended.
“Governmental Authority” means any national, federal, state, local, supranational, regional, or provincial government or any court of competent jurisdiction, administrative or regulatory agency, board, bureau, arbitrator, tribunal, or arbitral body or commission or other national, state, local, supranational, regional or provincial governmental authority or instrumentality entitled to exercise any administrative, executive, judicial, legislative, police, regulatory or taxing authority or power.
“Governmental Order” means any order, judgment, injunction, decree, writ, stipulation, determination or award, in each case, entered by any Governmental Authority.
“Group” means the AGSA Entities, on the one hand, or the AMP Entities, on the other hand, as the case may be.
“Indemnified Party” means an AGSA Indemnified Party or an AMPSA Indemnified Party, as the case may be.
“Indemnifying Party” means AGSA pursuant to Section 3.1 or AMPSA pursuant to Section 3.2, as the case may be.
“Law” means any national, federal, state, provincial, local or supranational law (including common law), statute, code, Governmental Order, consent decree, doctrine, ordinance, rule, regulation, treaty or other legal requirement of any Governmental Authority.
“Liabilities” means any and all debts, liabilities and obligations, whether accrued or unaccrued, fixed or variable, known or unknown, absolute or contingent, matured or unmatured or determined or determinable, including those arising under any Law, Action or Governmental Order and those arising under any contract, lease, agreement, arrangement, commitment or undertaking.
“Local Conveyances” means the sale and purchase agreements, share transfer agreements, bills of sale, deeds, assignment and assumption agreements and other documents between AGSA (or the applicable AGSA Retained Subsidiaries), on the one hand, and AMPSA (or its designated Subsidiary), on the other hand, pursuant to which the applicable AMP Equity Interests will be transferred to, or assumed by, AMPSA or its designated Subsidiary.
“Person” means any individual, corporation, partnership, limited partnership, limited liability company, syndicate, person, trust, association or entity or Governmental Authority or any political subdivision, agency or instrumentality thereof.
“Plan” means each employment, compensation, benefits, severance or termination, consulting, bonus, deferred compensation, equity, phantom-equity, or equity-based award, retention, relocation, vacation, change in control, transaction bonus, salary continuation, hospitalization, medical, dental, vision, life insurance, disability or sick leave benefit, profit-sharing, pension or retirement or other fringe benefit or compensatory plan, program, agreement or arrangement, whether or not in writing and whether or not funded, including any “employee benefit plan” (within the meaning of Section 3(3) of ERISA, whether or not subject to ERISA).
“Services Agreement” means the Services Agreement to be entered into by AGSA and AMPSA on or prior to the AMP Closing Date pursuant to which the AGSA Entities and the AMP Entities will provide services to each other after the AMP Closing.
“Specified Employee” means any employee or other service provider of an AMP Entity who is primarily employed or engaged in the conduct of the AGSA Retained Business and who is identified by the parties hereto as an employee or service provider whose employment or engagement, as applicable, will be transferred (or novated) to an AGSA Retained Subsidiary in connection with the AMP Transfer.
“Specified Plan” means any Plan identified by the parties hereto as a Plan that will be transferred to an AGSA Retained Subsidiary in connection with the AMP Transfer.
“Subsidiary” of any Person means another Person, of which at least a majority of the outstanding securities or ownership interests having, by their terms, ordinary voting power to elect (or direct the election of) a majority of the board of directors or other persons performing similar functions is owned or controlled directly or indirectly by such first Person or by one or more of its Subsidiaries.
Defined Term | Location of Definition |
---|---|
| |
Preamble | |
Recitals | |
§ 5.7(a) | |
§ 3.2 | |
§ 5.4(b) | |
§ 4.2(c)(i) | |
§ 5.4(a) | |
Recitals | |
§ 2.1(a) | |
§ 2.1(a) | |
§ 2.1(a) |
Defined Term | Location of Definition |
---|---|
§ 4.2(c) | |
Preamble | |
§ 3.1 | |
§ 4.2(c)(i) | |
Recitals | |
§ 3.4 | |
§ 5.3 | |
§ 3.4(b)(i) | |
§ 2.2(c) | |
§ 5.3 | |
§ 5.8(b) | |
Recitals | |
§ 3.4 | |
§ 3.1 | |
§ 5.10(a) | |
§ 5.10(a) | |
Recitals | |
§ 3.4(a) | |
§ 5.8(a) |
Liabilities, claims, losses, damages, costs, expenses, interest, awards, judgments and penalties (including reasonable attorneys’ and consultants’ fees and expenses) actually suffered or incurred by them (collectively, “Losses”) (other than any Transaction Expenses (as defined in the BCA)) to the extent arising out of or resulting from (a) any of the AGSA Retained Business, the AGSA Retained Employees, the AGSA Retained Plans (except any AMP Employee Liabilities) or the AGSA Retained Employee Liabilities, whether arising before, on or following the AMP Closing Date, and including any Losses arising out of or resulting from any failure by AGSA, AMPSA or any AGSA Entity (including any AGSA Retained Subsidiary) or AMP Entity to comply with the requirements of the Applicable Transfer Regulations in relation to the transfer of the Specified Employees under Section 4.1(a) or (b) a Third Party Claim to the extent that the facts of such Action arise out of or are based upon the actions of any AGSA Entity with respect to the AGSA Retained Business, but, in each case, excluding any Losses to the extent arising out of or resulting from any action taken by any AMP Entity with respect to the AGSA Retained Business following the AMP Closing, other than pursuant to a Contract between an AMP Entity and any AGSA Entity or with the written consent of an AGSA Entity.
Section 3.2, AMPSA hereby agrees to indemnify and hold harmless AGSA and each other AGSA Entity from any and all Losses arising from the EAPA or the Cross-License, whether arising before, on or after the AMP Closing.
AMP Entities to make all payments, capital contributions, transfers or distributions necessary or appropriate to effectuate such settlement, payment, capitalization, contribution, distribution or other termination of such intercompany receivables, payables and loans with the result that there shall not be any material intercompany receivables, payables and loans between any AGSA Retained Subsidiary, on the one hand, and any AMP Entity, on the other hand, after the AMP Closing Date. Notwithstanding the foregoing, the parties hereto agree that certain payments in respect of intercompany payables arising in connection with the AMP Transfer will be made following the BCA Closing Date or, if applicable, at such other times contemplated by the Steps Plan.
If to AGSA to:
00, Xxx Xxxxxxx Xxxxxx
X-0000 Xxxxxxxxxx
Xxxxxxxxxx
Xxxxxxx Xxxxxx
Email: xxxxxx.xxxxxxx@xxxxxxxxxxxxx.xxx
xxxxxxx.xxxxxx@xxxxxxxxxxx.xxx
If to AMPSA to:
Xxxxxxxxxx
Xxxxx Xxxxxx
Email: xxxxxx.xxxxxx@xxxxxxxxxxx.xxx
xxxxx.xxxxxx@xxxxxxxxxxx.xxx
respective successors and permitted assigns and nothing herein, express or implied, is intended to, or shall confer upon, any other Person any right, benefit or remedy of any nature whatsoever, including any rights of employment for any specified period, under or by reason of this Agreement; provided, that the other AMP Entities and the AGSA Retained Subsidiaries, as applicable, shall be intended third party beneficiaries of the terms of this Agreement applicable to such Persons.
[Signature page follows]
IN WITNESS WHEREOF, each of the parties hereto have executed this Agreement as of the date first written above.
By: | /s/ Hermanus Troskie |
ARDAGH METAL PACKAGING S.A.
By: | /s/ Xxxx Xxxxx |
Exhibit A
AMP Entities