STOCK PURCHASE AGREEMENT BY AND BETWEEN BEVERAGE PACKAGING HOLDINGS (LUXEMBOURG) III S.À R.L. AND CLOSURE SYSTEMS INTERNATIONAL (NZ) LIMITED Dated as of October 15, 2009
EXHIBIT 2.2
BY AND BETWEEN
BEVERAGE PACKAGING HOLDINGS (LUXEMBOURG) III S.À X.X.
AND
CLOSURE SYSTEMS INTERNATIONAL (NZ) LIMITED
Dated as of October 15, 2009
Table of Contents
Page | ||||
Article I |
||||
DEFINITIONS |
||||
Article II |
||||
SALE AND PURCHASE OF THE SHARES |
||||
2.1. Sale and Purchase of the Shares |
11 | |||
2.2. Closing |
11 | |||
2.3. CSI Existing Indebtedness |
12 | |||
2.4. Net Cash and Net Working Capital Adjustments |
12 | |||
2.5. Withholding Taxes |
14 | |||
Article III |
||||
REPRESENTATIONS AND WARRANTIES OF SELLER |
||||
3.1. Organization |
14 | |||
3.2. Due Authorization, Execution and Delivery |
14 | |||
3.3. Title to Shares; Capitalization; etc. |
15 | |||
3.4. Subsidiaries |
15 | |||
3.5. Financial Statements; Books and Records |
16 | |||
3.6. Liabilities |
16 | |||
3.7. Absence of Certain Changes |
17 | |||
3.8. No Conflicts; Consents |
18 | |||
3.9. Real Property |
19 | |||
3.10. Assets |
19 | |||
3.11. Governmental Approvals and Compliance with Laws |
20 | |||
3.12. Contracts |
20 | |||
3.13. Litigation and Claims |
22 | |||
3.14. Intellectual Property |
22 | |||
3.15. Tax Matters |
22 | |||
3.16. Joint Venture Entities |
24 | |||
3.17. Employee Benefit Plans and Related Matters |
24 | |||
3.18. Environmental Matters |
26 | |||
3.19. Brokerage or Finder’s Fees |
27 | |||
3.20. Insurance |
27 | |||
Article IV | ||||
REPRESENTATIONS AND WARRANTIES OF BUYER | ||||
4.1. Organization and Authority of Buyer |
27 |
i
Table of Contents
(continued)
(continued)
Page | ||||
4.2. Due Authorization by Buyer |
27 | |||
4.3. Litigation |
27 | |||
4.4. Brokerage or Finder’s Fees |
27 | |||
Article V |
||||
COVENANTS |
||||
5.1. Information Prior to Closing |
28 | |||
5.2. Conduct of Business |
28 | |||
5.3. Consummation of the Transactions; Notice |
29 | |||
5.4. Tax Matters |
29 | |||
5.5. Insurance |
31 | |||
5.6. Restructuring |
31 | |||
5.7. Financing |
32 | |||
Article VI |
||||
CONDITIONS PRECEDENT TO BUYER’S OBLIGATION TO CLOSE |
||||
6.1. Truth of Representations and Warranties |
32 | |||
6.2. Performance of Agreements |
32 | |||
6.3. No Legal Obstruction and receipt of Approvals |
32 | |||
6.4. CSI Contribution |
33 | |||
6.5. Ancillary Agreements |
33 | |||
6.6. Satisfaction of Conditions to the Xxxxxxxx Sale |
33 | |||
Article VII |
||||
CONDITIONS PRECEDENT TO SELLER’S OBLIGATION TO CLOSE |
||||
7.1. Truth of Representations and Warranties |
33 | |||
7.2. Performance of Agreements |
33 | |||
7.3. No Legal Obstruction and receipt of Approvals |
33 | |||
Article VIII |
||||
INDEMNIFICATION |
||||
8.1. Survival |
34 | |||
8.2. Indemnification by Seller |
34 | |||
8.3. Indemnification by Buyer |
34 | |||
8.4. Limitations on Indemnity |
35 | |||
8.5. Notification of Claims; Third Party Claims |
37 | |||
8.6. Exclusive Remedy |
39 |
ii
Table of Contents
(continued)
(continued)
Page | ||||
Article IX |
||||
TERMINATION |
||||
9.1. Termination |
39 | |||
9.2. Procedure and Effect of Termination |
40 | |||
Article X |
||||
MISCELLANEOUS |
||||
10.1. Notices |
40 | |||
10.2. Parties in Interest |
41 | |||
10.3. No Third Party Beneficiaries |
41 | |||
10.4. Governing Law; Choice of Jurisdiction |
42 | |||
10.5. Assignment |
42 | |||
10.6. Amendment; Waivers |
42 | |||
10.7. Further Assurances |
42 | |||
10.8. Severability |
42 | |||
10.9. Headings |
43 | |||
10.10. Entire Agreement |
43 | |||
10.11. Counterparts |
43 |
Exhibits
Exhibit A |
Rank Letter Agreement | |
Exhibit B |
CSI Transition Services Letter Agreement | |
Exhibit C |
Services Agreement |
Annexes
Annex I |
Pro Forma Closing Statement |
iii
STOCK PURCHASE AGREEMENT (this “Agreement”), dated as of October 15, 2009, by and
between Beverage Packaging Holdings (Luxembourg) III S.à x.x., a private limited liability company
(société à responsabilité limitée) duly formed under the laws of the Grand Duchy of Luxembourg
(“Buyer”) and Closure Systems International (NZ) Limited, a New Zealand company
(“Seller”). Capitalized terms used herein without definition shall have the meanings given
them in Article I hereto.
W I T N E S S E T H :
WHEREAS, Seller is the owner of all of the issued and outstanding registered shares (such
shares, together with such additional shares of the Company to be issued in connection with the CSI
Contribution (as defined below), the “Shares”) of Closure Systems International
(Luxembourg) S.à x.x., a private limited liability company (société à responsabilité limitée) duly
formed under the laws of the Grand Duchy of Luxembourg (the “Company”);
WHEREAS, Seller is also the owner of all of the issued and outstanding share capital of
Closure Systems International B.V., a private company with limited liability (besloten vennootschap
met beperkte aansprakelijkheid) incorporated under the laws of The Netherlands (“CSI BV”);
WHEREAS, prior to the Closing, Seller shall contribute all of the issued and outstanding share
capital of CSI BV (and, indirectly, the equity interests of the subsidiaries of CSI BV) to the
Company in exchange for additional registered shares of the Company (such contribution, the
“CSI Contribution”); and
WHEREAS, Seller, following the CSI Contribution, wishes to sell the Shares to Buyer, and Buyer
wishes to purchase the Shares from Seller, on the terms and conditions and for the consideration
described in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants, representations and
warranties made herein and of the mutual benefits to be derived from this Agreement, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement, the following words and phrases have the following meanings:
“$” means the United States dollar.
“Accounting Principles” means the IFRS principles, procedures and elections used in
the preparation of the Financial Statements, consistently applied.
“Affiliate” of a Person means a Person that, directly or indirectly through one or
more intermediaries, controls, is controlled by, or is under common control with, the first Person.
“Agreement” is defined in the Preamble to this Agreement.
“Alcoa Closing Date” means February 29, 2008, the date on which Affiliates of Rank
consummated the transactions in the United States contemplated by the Alcoa Purchase Agreement.
“Alcoa Purchase Agreement” means the Acquisition Agreement between Alcoa Inc. and
Rank, dated as of December 21, 2007, as it may be amended from time to time.
“Approved Restructuring Actions” is defined in Section 5.6.
“Assets” means the properties, assets, rights, claims and Contracts of every kind,
character and description, tangible or intangible, owned, leased, used or held for use in the
Business of the Company and the Company Subsidiaries.
“Audited Financial Statements” is defined in Section 3.5(a).
“Business” means the business activities of the Company and the Company Subsidiaries,
as conducted as of the date hereof and at any time between the date hereof and the Closing Date.
“Business Day” means any day that is not (i) a Saturday, (ii) a Sunday
or (iii) any other day on which commercial banks are authorized or required by law to be
closed in the City of New York.
“Buyer” is defined in the Preamble to this Agreement.
“Buyer Indemnitees” is defined in Section 8.2.
“Cap” is defined in Section 8.4(a).
“Cash” means the consolidated cash and cash equivalents of the Company and the Company
Subsidiaries.
“Closing” is defined in Section 2.2.
“Closing Balance Sheet” is defined in Section 2.4(a).
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“Closing Date” is defined in Section 2.2.
“Closing Net Cash” is defined in Section 2.4(a).
“Closing Net Working Capital Amount” is defined in Section 2.4(a).
“Closing Statement” is defined in Section 2.4(a).
“Code” means the U.S. Internal Revenue Code of 1986, as amended.
“Company” is defined in the Recitals to this Agreement.
“Company Intellectual Property” is defined in Section 3.14(a).
“Company Subsidiary” means all of the direct and indirect Subsidiaries of the Company
(after giving effect to the CSI Contribution).
“Consent” means any consent, approval, authorization, waiver, permit, grant,
franchise, concession, agreement, license, certificate, exemption, order, registration,
declaration, filing, report or notice of, with or to any Person.
“Consumer Products Target Group” means, collectively, Xxxxxxxx Consumer Products
International B.V., Xxxxxxxx Consumer Products Holdings Inc., Xxxxxxxx Consumer Products
(Luxembourg) S.à x.x. and each of their direct and indirect Subsidiaries.
“Contract” means any written or oral contract or any other legally binding agreement,
commitment or undertaking.
“Control” (including the terms “controlled by” and “under common control
with”) means the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the ownership of voting
securities, by Contract or credit arrangement, as trustee or executor, or otherwise.
“CSI BV” is defined in the Recitals to this Agreement.
“CSI Contribution” is defined in the Recitals to this Agreement.
“CSI Existing Indebtedness” means that amount of the Xxxxxxxx Existing Indebtedness
borrowed by any member of the Target Group (including any accrued and unpaid interest thereon).
“CSI New Indebtedness” means the amounts borrowed or raised by the Target Group on the
Closing Date under (i) the loan agreement between Buyer as lender and CSI BV as borrower
and in the amount of approximately €127,000,000 (or such other amount or currency as determined by
the Buyer); and (ii) the promissory note issued in the amount of
3
approximately $353,000,000 (or such other amount or currency as determined by the Buyer)
between Xxxxxxxx Group Issuer LLC (an Affiliate of the Buyer) and Closure Systems International
Holdings Inc. (a member of the Target Group).
“Dispute Notice” is defined in Section 2.4(b).
“Disputed Items” is defined in Section 2.4(b).
“Eligible Insurance Proceeds” is defined in Section 8.4(e).
“Employee Plans” means all material pension and profit-sharing, retirement and
post-retirement welfare benefit, health insurance benefit (medical, dental and vision), disability,
life and accident insurance, sickness benefit, vacation, bonus, incentive, deferred compensation,
severance, employment, change of control or fringe benefit plans, programs, arrangements or
agreements, whether written or oral, including any employee benefit plans defined in Section 3(3)
of ERISA, maintained or contributed to by the Company or the Company Subsidiaries.
“Environmental Law” means any Law in effect as of the date hereof regulating or
relating to the protection of natural resources or the environment.
“Environmental Permit” means any permit, license, authorization, registration, Consent
or other approval required pursuant to applicable Environmental Laws.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
“Final Closing Condition” means (i) the Company, or the Company Subsidiaries, as
applicable, shall have consummated the incurrence of Indebtedness under the CSI New Indebtedness
and (ii) the obligations of the Company and the Company Subsidiaries in respect of the
Xxxxxxxx Existing Indebtedness (including obligations in respect of any guarantee or security
interest granted by the Company or a Company Subsidiary to secure the Xxxxxxxx Existing
Indebtedness and any security interest in the capital stock of the Company or a Company Subsidiary
to secure the Xxxxxxxx Existing Indebtedness) shall have been satisfied and discharged in full.
“Financial Statements” is defined in Section 3.5(a).
“Fundamental Representations” is defined in Section 8.1.
“Governmental Approvals” is defined in Section 3.11(a).
“Governmental Authority” means any government, any governmental, administrative or
regulatory entity (including any stock exchange), authority, commission, board, agency,
instrumentality, bureau or political subdivision and any court, tribunal or
4
judicial or arbitral body (whether in the U.S., or any other domestic or foreign national,
federal, provincial, state or local entity or, in the case of an arbitral body, whether
governmental, public or private).
“Group” is defined in Section 3.5(a).
“GST” means goods and services tax or similar value added tax levied or imposed in New
Zealand under the GST Act or otherwise on a supply of goods and services.
“GST Act” means the Goods and Services Tax Xxx 0000 (NZ).
“Xxxx Group” means (i) Xxxxxx Xxxx, (ii) his spouse and members of his immediate
family (including siblings, children, grandchildren and children and grandchildren by adoption),
and (iii) in the event of incompetence or death of any of the persons described in clauses (i) and
(ii) hereof, such person’s transferee by will, estate, executor, administrator, committee or other
personal representative.
“Hazardous Substances” means any substance that is regulated as toxic or hazardous
under applicable Environmental Laws, including: asbestos, urea formaldehyde insulation,
polychlorinated biphenyls, petroleum, petroleum products or petroleum derived substances or wastes.
“IFRS” means the International Financial Reporting Standards as issued by the
International Accounting Standards Board.
“Indebtedness” means, with respect to any Person, as of any date of determination, all
indebtedness of such Person for money borrowed or raised, including any accrued and unpaid interest
thereon.
“Indemnified Party” is defined in Section 8.5(a).
“Indemnifying Party” is defined in Section 8.5(a).
“Indemnity Threshold” is defined in Section 8.4(a).
“Input Tax” has the meaning given in the GST Act.
“Intellectual Property” means all intellectual property and intellectual property
rights including trademarks, service marks, trade names, distinguishing guises and trade dress
including all goodwill associated with the foregoing, inventions, trade secrets, processes,
formulae, compositions, designs, know-how, ideas, confidential business and technical information,
domain names, copyrights, software, internet web sites including content, mask works and other
semiconductor chip rights, and similar rights, and registrations and applications to register or
renew the registration of any of the foregoing,
5
including registrations and applications to register trademarks, patents, industrial designs, copyrights
or mask works.
“Joint Venture Agreement” is defined in Section 3.16.
“Joint Venture Entities” means those entities disclosed on Section 1.1(a) of the
Seller Disclosure Letter.
“Knowledge of Seller” means the actual knowledge, as of the date hereof, of any of
Xxxxxx Xxxxxx, Xxxx Xxxxxx, Xxxxxxx Xxxxxx, Xxxxx Xxxxxxxx, Xxx Xxxxx, Xxxxx Xxxxxx, Xxxxxxxxx
Xxxxxxxx, Xxxxx Xxxxx or Xxxxx Xxxxxxx.
“Law” means all (i) constitutions, treaties, statutes, laws (including, but
not limited to, the common law), rules, regulations, ordinances, codes or orders of any
Governmental Authority, and (ii) orders, decisions, injunctions, judgments, awards and
decrees or consents of or agreements with any Governmental Authority.
“Leased Real Property” is defined in Section 3.9(b).
“Leases” is defined in Section 3.9(b).
“Lien” means, with respect to any property or asset, any material mortgage, lien,
pledge, charge, security interest or encumbrance in respect of such property or asset.
“Litigation” means any action, cause of action, claim, demand, suit, proceeding,
citation, summons, subpoena, inquiry or investigation of any nature, civil, criminal, regulatory or
otherwise, in Law or in equity, pending by or before any court, tribunal, arbitrator or other
Governmental Authority.
“Losses” means any damage, loss, liability or expense (including reasonable expenses
of investigation, enforcement and collection and reasonable attorneys’ and accountants’ fees and
expenses in connection with any Litigation, but excluding any incidental, indirect or
consequential damages, losses, liabilities or expenses, and any lost profits or diminution in
value), whether or not involving a Third Party Claim.
“Maslux” means Mas Luxembourg S.à x.x, private limited liability company (société à
responsabilité limitée) formed under the laws of the Grand Duchy of Luxembourg.
“Material Adverse Effect” means any event, occurrence, condition, development or
effect that has had or would reasonably be expected to have a material adverse effect on the
Business, results of operations or financial condition of the Company, taken as a whole, or the
ability of Seller or the Company to perform its respective obligations under this Agreement, other
than any event occurrence, condition, development or effect relating to (i) the industries
in which the Company or the Company Subsidiaries operate, (ii) any natural disaster or any
acts or threats of terrorism, military action or war or any escalation or
6
worsening thereof or (iii) general economic conditions or capital or financial markets
generally (including interest rate and exchange rate fluctuations), unless in each case specified
in clauses (i) through (iii), such event occurrence, condition, development or effect has a
disproportionate adverse effect on the Business.
“Material Contracts” is defined in Section 3.12(a).
“Net Cash” means, as of any date of determination, the amount by which (A) the
Cash is greater than or less than (B) the amount of Other Indebtedness. For avoidance of
doubt, Net Cash can be a negative number.
“Net Cash Threshold Amount” is defined in Section 2.4(f).
“Net WC Threshold” is defined in Section 2.4(f).
“Net Working Capital Amount” means, as of any date of determination, the amount equal
to(i) consolidated current assets of the Company and the Company Subsidiaries minus
(ii) consolidated current liabilities of the Company and the Company Subsidiaries,
calculated in accordance with the Accounting Principles and the accounting principles, practices
and methodologies set forth in the Pro Forma Closing Statement.
“New Bank Indebtedness” means the new bank Indebtedness of certain Affiliates of Buyer
and of certain Subsidiaries of Seller under a senior secured credit agreement dated on or about the
Closing Date and in an amount of $1,175,000,000 (or such other amount and currency as shall have
been determined by the Buyer).
“Notice of Insurance” is defined in Section 8.4(e).
“Organizational Documents” means, with respect to any Person, the articles of
incorporation, certificate of incorporation, charter, constitution, bylaws, articles of formation,
regulations, operating agreement, certificates of limited partnership, partnership agreement, and
all other similar documents, instruments or certificates executed, adopted, or filed in connection
with the creation, formation or organization of such Person, including any amendments thereto.
“Other Indebtedness” means, as of any date of determination, the consolidated
Indebtedness of the Company and the Company Subsidiaries, but excluding (i) the CSI New
Indebtedness, (ii) the CSI Existing Indebtedness, (iii) Indebtedness existing
between members of the Target Group, and (iv) Indebtedness of members of the Target Group
to members of the Consumer Products Target Group.
“Output Tax” has the meaning given in the GST Act.
“Owned Intellectual Property” is defined in Section 3.14(a).
7
“Owned Real Property” is defined in Section 3.9(a).
“Permitted Liens” means, with respect to any property or asset, (i) Liens
disclosed on the Financial Statements; (ii) Liens for Taxes that are not yet due or that
are being contested in good faith (and for which adequate accruals or reserves have been
established on the Financial Statements); (iii) Liens securing obligations under any
documents governing the Xxxxxxxx New Indebtedness; (iv) any Liens securing obligations
under any documents governing the Xxxxxxxx Existing Indebtedness to be repaid on or prior to
Closing; (v) Liens which do not materially detract from the value or materially interfere
with any present or intended use of such property or asset; or (vi) Liens included in
Section 3.10 or 3.14(a) of the Seller Disclosure Letter.
“Person” means an individual, corporation, partnership, limited liability company,
association, trust or other entity or organization, including a government or political subdivision
or an agency or instrumentality thereof.
“Pre-Closing Income Taxes” means any Taxes based on income, profits or net worth
(without duplication) (a) of the Company or any Company Subsidiary for all Pre-Closing Tax
Periods, (b) of any member of a consolidated group of which the Company or any Company
Subsidiary (or any predecessor of the Company or any Company Subsidiary) is or was a member after
the Alcoa Closing Date and on or prior to the Closing Date but of which the Company or any Company
Subsidiary is not a member after the Closing Date, including pursuant to Treasury Regulations
Section 1.1502-6 (or any predecessor or successor thereof or any analogous or similar state, local
or foreign law or regulation) or (c) of any Person imposed on the Company or any Company
Subsidiary as a transferee or successor, by Contract (other than any Contract entered into in the
ordinary course of business) or pursuant to any law, rule or regulation, which Taxes relate to an
event or transaction occurring on or before the Closing and during a period the Company or any
Company Subsidiary was held or owned by Seller or its Affiliates.
“Pre-Closing Tax Period” shall mean any tax period or portion thereof beginning after
the Alcoa Closing Date and ending on or before the Closing Date.
“Pro Forma Closing Statement” is defined in Section 2.4(a).
“Purchase Price” means $1,223,000,000.
“Qualifying Loss” is defined in Section 8.4(a).
“Rank” means Rank Group Limited.
“Rank CFO” is defined in Section 2.4(d).
8
“Rank Letter Agreement” means that letter agreement between Rank and Buyer, in the
form attached hereto as Exhibit A.
“Resolution Period” is defined in Section 2.4(c).
“Review Accountant” means PriceWaterhouseCoopers (New Zealand).
“Reviewed Financial Statements” is defined in Section 3.5(a).
“Xxxxxxxx Existing Indebtedness” means the Indebtedness of the Group under the Senior
Secured Facilities Agreement, dated February 21, 2008 (as amended), by and among, Xxxxxxxx
Packaging Group (NZ) Limited, Credit Suisse as facility agent and security trustee, certain banks
and financial institutions named therein as the lenders and the other parties signatory thereto.
“Xxxxxxxx New Indebtedness” means (i) an offering of senior secured notes by
Affiliates of Buyer and a Subsidiary of Buyer having an aggregate principal amount of
$1,765,000,000 (or such other amount and currency as shall have been determined by the Buyer) and
(ii) the New Bank Indebtedness.
“Xxxxxxxx Purchase Agreement” means that certain Stock Purchase Agreement dated as of
the date hereof, by and between Xxxxxxxx Consumer Products (NZ) Limited, Buyer and Xxxxxxxx Group
Holdings Inc.
“Seller” is defined in the Preamble to this Agreement.
“Seller Disclosure Letter” means the disclosure letter delivered by Seller to Buyer
contemporaneously with the execution and delivery of this Agreement.
“Seller Indemnitees” is defined in Section 8.3.
“Seller’s Accountant” means PriceWaterhouseCoopers (New Zealand).
“Services Agreements” means (i) the CSI and Consumer Products Transition
Services Letter Agreement between Rank and the Buyer, substantially in the form attached hereto as
Exhibit B and (ii) the Services Agreement between Xxxxxxxx Foil Inc. and Xxxxxxxx Packaging
Inc., substantially in the form attached hereto as Exhibit C.
“Shares” is defined in the Recitals to this Agreement.
“Subsidiary” means, with respect to any Person, (i) each corporation,
partnership, joint venture or other legal entity of which such Person (A) owns, either
directly or indirectly, fifty percent or more of the stock or other equity interests the holders of
which are entitled to vote for the election of the board of directors or similar governing body of
such corporation, partnership, joint venture or other legal entity or (B) possesses the
voting
9
right described in clause (A) pursuant to Contract, (ii) each partnership in which
such Person or a Subsidiary of such Person is a general or managing partner and (iii) each
limited liability company in which such Person or a Subsidiary of such Person is a managing member
or otherwise Controls (by Contract, through ownership of membership interests or otherwise).
Notwithstanding the foregoing, the Joint Venture Entities and any Subsidiaries thereof shall not be
considered “Subsidiaries” for purposes of this Agreement.
“Target Group” means the Company, the Company Subsidiaries and the Joint Venture
Entities.
“Target Net Working Capital Amount” means $102,600,000.
“Tax” means any federal, state, provincial, local, foreign or other income,
alternative, minimum, accumulated earnings, personal holding company, franchise, capital stock, net
worth, capital, profits, windfall profits, gross receipts, sales, use, value added, transfer,
registration, stamp, premium, excise, customs duties, import, severance, real property, personal
property, ad valorem, occupancy, license, occupation, business and occupation, employment, payroll,
social security, disability, unemployment, employment insurance premiums, workers’ compensation,
workers’ compensation premiums, health care, withholding, remittances, deductions, estimated or
other similar tax, levy, assessment, reassessment, dues, duty, note, fee, or other governmental
charge or assessment, or deficiencies thereof (together with all interest and penalties thereon and
additions thereto).
“Tax Invoice” has the meaning given in the GST Act.
“Tax Return” means any return, report, declaration, form, claim for refund or
information, return or statement relating to Taxes, including any schedule or attachment thereto,
and including any amendment thereof.
“Taxable Supply” has the meaning given in the GST Act.
“Taxing Authority” means any federal, state, provincial, local, foreign or other
Governmental Authority responsible for any Tax.
“Third Party Claim” is defined in Section 8.5(a).
“Treasury Regulations” means the regulations prescribed under the Code.
“Unresolved Items” is defined in Section 2.4(d).
10
ARTICLE II
SALE AND PURCHASE OF THE SHARES
2.1. Sale and Purchase of the Shares. Subject to the terms and conditions hereof,
Seller will sell the Shares to Buyer and Buyer will purchase the Shares from Seller, for the
Purchase Price, subject to adjustment as set forth in Sections 2.2(c)(ii) and 2.4(f).
2.2. Closing. The closing of the sale and purchase of the Shares (the
“Closing”) shall take place at 10:00 a.m. (EST) at the offices of Debevoise and Xxxxxxxx
LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the second Business Day after the waiver or
satisfaction of all conditions to Closing set out in Article VI and Article VII of this Agreement
(other than those conditions that by their terms are to be satisfied at Closing, but subject to the
satisfaction or waiver of such conditions and the Final Closing Condition), or at such other place,
time and date as may be mutually agreed to by the parties hereto. The date on which the Closing
occurs is referred to in this Agreement as the “Closing Date”. At the Closing:
(a) Seller and Buyer shall confirm the satisfaction or waiver of all conditions to Closing
other than the Final Closing Condition and the bank account or accounts into which the proceeds of
the CSI New Indebtedness is to be deposited;
(b) Upon the confirmation detailed at Section 2.2(a) above, the CSI New Indebtedness shall be
borrowed or raised (as relevant) by the relevant Company Subsidiaries and on receipt of the CSI New
Indebtedness in the bank account or accounts nominated in accordance with Section 2.2(a) above
(which shall satisfy paragraph (i) of the definition of Final Closing Condition), Seller will
procure the satisfaction of the matters described in paragraph (ii) of the definition of Final
Closing Condition;
(c) Upon satisfaction of the Final Closing Condition:
(i) Seller will deliver to Buyer (A) two executed counterparts of this
Agreement, (B) two executed counterparts of all documents and certificates required
by this Agreement, and (C) such other documents as Buyer shall reasonably request
to effectuate this Agreement on the terms contemplated hereby; Seller shall (Z)
notify the Company of the transfer of the Shares pursuant to article 190, paragraph 2 of
the Luxembourg law dated 10 August 1915 concerning the commercial companies as amended and
article 1690 of the Luxembourg Civil Code, in order to make the transfer of the Shares
enforceable vis-à-vis the Company, (Y) instruct the managers of the Company and any
employee of Maslux to proceed to the entry of the transfer of the Shares into the share
register of the Company and (X) instruct the managers of the Company and any
employee of Maslux to file a notice of the transfer of the Shares with the Luxembourg
Register of Commerce and Companies, in order to make the transfer of the Shares enforceable
vis-à-vis third parties.
11
(ii) Buyer will deliver to Seller (A) an amount equal to the Purchase Price
minus the CSI Existing Indebtedness as of the Closing Date, by wire transfer of
immediately available funds to the account or accounts designated by Seller prior to the
Closing Date, (B) two executed counterparts of this Agreement, (C) two
executed counterparts of all documents and certificates required by this Agreement and
(D) such other documents as Seller shall reasonably request to effectuate this
Agreement on the terms contemplated hereby.
2.3. CSI Existing Indebtedness. At least two Business Days prior to the Closing Date,
Seller shall provide the Buyer with a calculation of the amount (including a calculation of the
conversion of US dollars to euros where requested by the Buyer) needed to repay the CSI Existing
Indebtedness on the Closing Date.
2.4. Net Cash and Net Working Capital Adjustments.
(a) Closing Statement. Within 60 days following the Closing Date, Buyer shall prepare
and deliver to Seller a statement (the “Closing Statement”), consisting of a calculation of
(i) Cash as of immediately prior to the Closing (excluding for the avoidance of doubt, any
proceeds from the CSI New Indebtedness), (ii) the amount of Other Indebtedness as of
immediately prior to the Closing and (iii) Net Cash, as determined by the amounts provided
in clauses (i) and (ii) (such amount, the “Closing Net Cash”), (iv) a consolidated
balance sheet of CSI BV, the Company and the Company Subsidiaries as of the close of business on
the Closing Date (the “Closing Balance Sheet”), (v) a calculation in reasonable detail of
the Net Working Capital Amount as of the Closing Date, as shown on the Closing Balance Sheet (the
“Closing Net Working Capital Amount”) and (vi) a calculation of the amount, if any,
payable pursuant to clause (f) of this Section 2.4. The Closing Statement shall be prepared in
accordance with the Accounting Principles and the accounting principles, practices and
methodologies set forth in the statement attached hereto as Annex I (the “Pro Forma Closing
Statement”).
(b) Dispute Notice. The Closing Statement shall become final, binding and conclusive
upon Seller and Buyer on the 45th day following Seller’s receipt of the Closing
Statement, unless prior to such 45th day Seller delivers to Buyer a written notice (a
“Dispute Notice”) specifying in reasonable detail each item that Seller disputes (a
“Disputed Item”), the amount in dispute for each such Disputed Item and the reasons
supporting Seller’s positions. Seller shall be deemed to have agreed with all other items and
amounts contained in the Closing Statement delivered pursuant to Section 2.4(a).
(c) Resolution Period. If Seller delivers a Dispute Notice, then Buyer and Seller
shall seek in good faith to resolve the Disputed Items during the 45-day period beginning on the
date Buyer receives the Dispute Notice (the “Resolution Period”). If Buyer and Seller
reach agreement with respect to any Disputed Items, Buyer shall revise the Closing Statement to
reflect such agreement.
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(d) Resolution of Disputes. If Buyer and Seller are unable to resolve all Disputed
Items during the Resolution Period, then Buyer and Sellers shall jointly submit the unresolved
Disputed Items (the “Unresolved Items”) to Rank’s Chief Financial Officer (the “Rank
CFO”). The Rank CFO shall act as an arbitrator to determine, based solely on presentations by
Seller and Buyer, and not by independent review, only those items still in dispute and shall be
limited to those adjustments, if any, required to be made for the Closing Statement to comply with
the provisions of this Agreement. The Rank CFO shall make a determination with respect to the
Unresolved Items only and in a manner consistent with this Section 2.4(d), and in no event shall
the Rank CFO’s determination of the Unresolved Items be for an amount that is outside the range of
Buyer’s and Sellers’ disagreement. Each party shall use its reasonable best efforts to furnish to
the Rank CFO such work papers and other documents and information pertaining to the Unresolved
Items as the Rank CFO may reasonably request. The determination of the Rank CFO shall be final,
binding and conclusive upon Buyer and Seller absent manifest error, and Seller shall revise the
Closing Statement to reflect such determination upon receipt thereof. The fees, expenses and costs
of the Rank CFO shall be borne by Buyer and Seller in proportions inverse to the relative extent to
which they prevail on matters resolved by the Rank CFO, which proportionate allocation shall be
determined by the Rank CFO.
(e) Access to Information. Each party shall use its reasonable best efforts to
provide promptly to the other party all information and reasonable access to employees as such
other party shall reasonably request in connection with review of the Closing Statement or the
Dispute Notice, as the case may be, and shall otherwise cooperate in good faith with such other
party to arrive at a final determination of the Closing Statement.
(f) Adjustments.
(i) Net Cash Adjustment. Within five Business Days after the Closing
Statement is finalized pursuant to clause (b) or (d):
(A) if Closing Net Cash exceeds $43,000,000 (the “Net Cash Threshold Amount”),
Buyer shall pay to Seller an amount equal to such excess; or
(B) if Closing Net Cash is less than the Net Cash Threshold Amount, Seller shall pay
to Buyer an amount equal to such deficit.
(ii) Net Working Capital Adjustment. Subject to Section 2.4(f)(ii)(C), within
five Business Days after the Closing Statement is finalized pursuant to clause (b) or (d):
(A) if the Closing Net Working Capital Amount exceeds the Target Net Working Capital
Amount, Buyer shall pay to Seller an amount equal to such excess; or
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(B) if the Closing Net Working Capital Amount is less than the Target Net Working
Capital Amount, Seller shall pay to Buyer an amount equal to such deficit.
(C) Notwithstanding the foregoing provisions of this Section 2.4(f)(ii), no adjustment
shall be made to the Purchase Price pursuant to Sections 2.4(f)(ii)(A) or 2.4(f)(ii)(B) and
no payment shall be made unless such adjustment (whether an increase or a decrease) would
exceed $10,000,000 (the “Net WC Threshold”), and if the adjustment would exceed the
Net WC Threshold, then payment of the amount of the adjustment in excess of the Net WC
Threshold shall be made.
2.5. Withholding Taxes. Buyer and any of its Affiliates will be entitled to deduct
and withhold from amounts otherwise payable to any Person pursuant to this Agreement any amounts
that are required to be deducted or withheld with respect to the making of such payments under the
Code and the rules and Treasury Regulations promulgated thereunder, or any provision of state,
local or foreign Tax Law. Any amounts so deducted or withheld will be treated for all purposes of
this Agreement as having been paid to the Person in respect of which such deduction or withholding
was made.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF SELLER
OF SELLER
Seller represents and warrants to Buyer, as of the date hereof and as of the Closing Date, as
follows:
3.1. Organization. Seller and the Company are duly organized, validly existing and,
if applicable, in good standing under the Laws of their respective jurisdiction of incorporation or
formation, as the case may be. Seller and the Company each has the requisite corporate power and
authority to carry on its business as now conducted. True and complete copies of the
Organizational Documents of the Company, as amended, to and including the date hereof, have been
made available to Buyer. The Company is not in material violation of any provision of its
Organizational Documents.
3.2. Due Authorization, Execution and Delivery. The execution of this Agreement by
Seller and the performance by Seller of the transactions contemplated hereby have been duly
authorized or, as of the Closing, shall have been duly ratified, by all necessary corporate action
of Seller. Seller has duly executed and delivered this Agreement. This Agreement constitutes
valid and binding obligations of Seller, enforceable against Seller in accordance with its
respective terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar Laws now or hereafter in effect relating to or
limiting creditors’ rights generally and general principles of equity.
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3.3. Title to Shares; Capitalization; etc.
(a) Title. Seller is the beneficial and record owner of all of the Shares, free and
clear of any Liens, other than Permitted Liens. Upon registration of Buyer as owner of the shares
in the share register of the Company and payment for the Shares at the Closing, Buyer will acquire
good and valid title to all of the Shares, free and clear of any Lien (other than Permitted Liens).
(b) Authorized Capital Stock. As of the date hereof, the authorized capital stock of
the Company consists of 500 registered shares, par value €25 per share, of which 500 registered
shares are issued and outstanding as of the date hereof. The Shares have been duly authorized and
validly issued and are (or, as of the Closing, will be) fully paid and non-assessable.
(c) No Equity Rights. There are no preemptive or similar rights on the part of any
holders of any class of securities of the Company. Except as contemplated by the CSI Contribution,
there are no subscriptions, options, warrants, conversion or other binding rights, agreements,
commitments or arrangements obligating the Company, Seller or any other Person, contingently or
otherwise, to issue or sell, or cause to be issued or sold, any shares of capital stock of the
Company, or any securities convertible into or exchangeable for any such shares, and no
authorization therefor has been given. Except for the transactions contemplated by this Agreement,
there are no outstanding contractual or other rights or obligations to or of the Company, Seller or
any other Person to repurchase, redeem or otherwise acquire any outstanding shares or other equity
interests of the Company.
3.4. Subsidiaries.
(a) Each Company Subsidiary is listed on Section 3.4(a) of the Seller Disclosure
Letter, and is duly organized, validly existing and, if applicable, in good standing under the
Laws of its jurisdiction of incorporation or formation, as the case may be, and has all the
requisite corporate power and authority to carry on its business as now conducted. Except as set
forth on Section 3.4(a) of the Seller Disclosure Letter, all shares of capital stock or
other equity interests in the Company Subsidiaries are owned, or will, on the Closing Date, be
owned, directly or indirectly, by the Company. Seller has made available to Buyer complete copies
of the Organizational Documents of each Company Subsidiary as currently in effect, and no such
Company Subsidiary is in material violation of any provision of its Organizational Documents.
(b) All of the outstanding shares of capital stock of, and other voting or equity interests
in, each Company Subsidiary have been duly authorized and validly issued, and are fully paid and
non-assessable and, except as set forth in Section 3.4(b) of the Seller Disclosure Letter,
free and clear of any Liens (other than Permitted Liens). There are no preemptive or similar
rights on the part of any holders of any class of securities of any Company Subsidiary. Except as
contemplated by this Agreement (including the CSI
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Contribution and the Approved Restructuring Actions), there are no subscriptions, options,
warrants, conversion or other binding rights, agreements, commitments or arrangements obligating
the Company, any Company Subsidiary, Seller or any other Person, contingently or otherwise, to
issue or sell, or cause to be issued or sold, any shares of capital stock of any Company
Subsidiary, or any securities convertible into or exchangeable for any such shares. Except for the
transactions contemplated by this Agreement, there are no outstanding contractual or other rights
or obligations to or of the Company, any Company Subsidiary, Seller or any other Person to
repurchase, redeem or otherwise acquire any outstanding shares or other equity interests of any
Company Subsidiary.
(c) Except for the equity interests owned in the Joint Venture Entities, neither the Company
nor any Company Subsidiary owns any shares of capital stock of, or other voting or equity interests
in (including any securities exercisable or exchangeable for or convertible into capital stock of
or other voting or equity interests in) any other Person.
3.5. Financial Statements; Books and Records.
(a) Seller has previously furnished to Buyer copies of (i) the audited consolidated carve-out
financial statements of CSI BV and its Controlled entities (the “Group”) at and for the one
year period ended December 31, 2008, together with the audit report of Seller’s Accountant thereon
(the “Audited Financial Statements”) and (ii) the interim unaudited condensed
consolidated carve-out financial statements of the Group at and for the six-month period ended June
30, 2009, together with the review report of the Review Accountant (the “Reviewed Financial
Statements” and, together with the Audited Financial Statements, the “Financial
Statements”).
(b) The Financial Statements have been prepared in accordance with IFRS as outlined in the
basis of preparation on a consistent basis from period to period.
(c) The Financial Statements fairly present the financial condition of the Group at the
respective dates thereof and the results of operations of the Group for the periods then ended
(subject, in the case of the Reviewed Financial Statements, to normal year-end audit adjustments).
(d) To the Knowledge of Seller, the books of account and financial records of the Group,
(i) are complete and correct in all material respects and, (ii) have been (and,
until the Closing Date, will be) maintained in accordance with sound business practices and
prepared on a consistent basis with the Accounting Principles used to prepare the Financial
Statements.
3.6. Liabilities. Neither the Company or any Company Subsidiary has any liabilities
or obligations of any nature, whether absolute, accrued, contingent or otherwise and whether due or
to become due, of a type that would be required by IFRS to be reflected on a consolidated balance
sheet of the Company and the Subsidiaries, except for liabilities
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or obligations (a) reflected in, or reserved against on the face of the Reviewed
Financial Statements, (b) that are disclosed in Section 3.6 of the Seller Disclosure
Letter (but only to the extent that such liability is apparent from such disclosure),
(c) that were incurred in the ordinary course of business and (d) that,
individually or in the aggregate, would not reasonably be expected to have or result in a Material
Adverse Effect.
3.7. Absence of Certain Changes. Since June 30, 2009, except as set forth in
Section 3.7 of the Seller Disclosure Letter, the Business has been conducted in the
ordinary course consistent with past practice and there has not been:
(a) any event, development or state of circumstances that has had or would reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) any declaration or payment of any dividend or other distribution with respect to any
Shares, or any redemption or other acquisition by the Company of any Shares;
(c) any amendment or modification of the Organizational Documents of the Company or the
Company Subsidiaries or of the terms of the securities of the Company;
(d) any incurrence of any Indebtedness by the Company or the Subsidiaries, except for
(i) the incurrence of Indebtedness pursuant to any documents governing the CSI Existing
Indebtedness, (ii) the incurrence of Indebtedness pursuant to any documents governing the
CSI New Indebtedness, and (iii) the incurrence of Other Indebtedness in an amount which
does not exceed $20,000,000 in the aggregate;
(e) any creation or other incurrence of any Lien on any material Asset other than Permitted
Liens or pursuant to existing loan agreements of the Company and the Company Subsidiaries;
(f) any loan, advance or capital contribution to or investment in any Person by the Company or
any Company Subsidiary, other than to or in the wholly-owned Company Subsidiaries in the ordinary
course of business consistent with past practice;
(g) any change in any method of accounting or accounting principles or practices by the
Company or any Company Subsidiary except for any such change required by reason of a concurrent
change in IFRS;
(h) any (i) grant of any severance or termination pay to (or amendment to any existing
arrangement with) any director, officer or employee of the Company or Company Subsidiaries,
(ii) increase in benefits payable under any existing severance or termination pay policies
or employment agreements, (iii) employment, deferred compensation or other similar
agreement (or any amendment to any such existing agreement) entered into with any director, officer
or employee of the Company or Company Subsidiaries, (iv) establishment, adoption or
amendment (except as required by applicable Law) of any Employee Plan or (v)
17
increase in compensation, bonus or other benefits payable to any director, officer or employee
of the Company or any Company Subsidiary, except, in the case of the foregoing clauses (i) through
(v), to the extent such action arises in the ordinary course of business consistent with past
practice or is taken pursuant to the terms of any Contract in existence on the date hereof;
(i) any capital expenditures, or commitments for capital expenditures, in an amount in excess
of $5,000,000 in the aggregate, by the Company or the Company Subsidiaries;
(j) any material Tax election made or changed, any annual Tax accounting period changed, any
method of Tax accounting adopted or changed, any material amended Tax Returns or claims for
material Tax refunds filed, any material closing agreement entered into, any material proposed Tax
adjustments or assessments, any material Tax claim, audit or assessment settled, or any right to
claim a material Tax refund, offset or other reduction in Tax liability surrendered, in each case,
by the Company or the Company Subsidiaries;
(k) any sale, transfer, lease or other disposition of any Asset, except for inventory sold in
the ordinary course of business consistent with past practice; or
(l) any agreement or commitment (other than any agreement in respect of the CSI New
Indebtedness) by the Company or the Company Subsidiaries to do any of the foregoing or any action
or omission by the Company or the Company Subsidiaries that would reasonably be expected to result
in any of the foregoing.
3.8. No Conflicts; Consents.
(a) Except as set forth in Section 3.8(a) of the Seller Disclosure Letter, the
execution, delivery and performance by Seller of this Agreement and the consummation of the
transactions contemplated hereby do not and will not, (i) conflict with or result in any
violation or breach of any provision of the Organizational Documents of Seller, the Company or any
of the Company Subsidiaries, (ii) assuming compliance with the matters referred to in
Section 3.8(b), conflict with or result in a violation or breach of any provision of applicable
Law, (iii) require any Consent of or other action by any Person under, constitute a default
or an event that, with or without notice or lapse of time or both, would constitute a default
under, or cause or permit the termination, cancellation, acceleration or other change of any right
or obligation or the loss of any benefit under, any provision of any material agreement or other
instrument to which Seller, the Company or any Company Subsidiary is a party (including any
Material Contract) or any material licenses, franchises, permits, certificates, approvals or other
similar authorizations affecting the Assets or the operation of the Business or (iv) result
in the creation or imposition of any Lien other than Permitted Liens on any Assets, other than in
the cases of clauses (ii) through (iv), any such
18
items that, individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect.
(b) Except as set forth on Section 3.8(b) of the Seller Disclosure Letter, no Consent,
license, permit, order, authorization or approval of, or notice to, or registration, declaration or
filing with, any Governmental Authority or other third party is required to be obtained or made by
or with respect to Seller, the Company or any Company Subsidiary in connection with the execution,
delivery and performance of this Agreement, other than such Consents, licenses, permits, orders,
authorizations, approvals, notices, registrations, declarations or filings that, individually or in
the aggregate, have not had or would not reasonably be expected to have a Material Adverse Effect
or materially impair the ability of the Company to conduct the Business immediately following the
Closing.
3.9. Real Property.
(a) Owned Real Property. Section 3.9(a) of the Seller Disclosure Letter
contains, as of the date hereof, a complete and correct list of all real property owned by the
Company and the Company Subsidiaries (which real property, together with all improvements and
fixtures located thereon or attached or appurtenant thereto, and all easements, licenses, rights
and appurtenances relating to the foregoing, constitutes the “Owned Real Property”).
(b) Leased Real Property. Section 3.9(b) of the Seller Disclosure Letter
contains, as of the date hereof, a complete and correct list of all of the real property leased by
the Company and the Company Subsidiaries (the leases, together with any amendments thereto,
pursuant to which such real property is leased, the “Leases”, and all interests leased
pursuant to the Leases, the “Leased Real Property”). Seller has delivered to Buyer correct
and complete copies of each Lease. Neither the Company nor any Company Subsidiary is a sublessor
or grantor under any sublease or other instrument granting to another Person any material right to
the possession, lease, occupancy or enjoyment of any Owned Real Property or Leased Real Property.
(c) Current Use. The use and operation of the Owned Real Property and the Leased Real
Property in the conduct of the Business do not violate in any material respect any Law, covenant,
condition, restriction, easement, license, permit, or agreement.
(d) No Options. Neither the Company nor any Company Subsidiary owns, holds, has
granted or is obligated under any option, right of first offer, right of first refusal or other
contractual right to purchase, acquire, sell or dispose of any Owned Real Property or any interest
therein.
3.10. Assets. Except as set forth in Section 3.10 of the Seller Disclosure
Letter, the Company and the Company Subsidiaries have good and valid (and, in the case of Owned
Real Property, good, valid and marketable fee simple) title to, or have legally
19
sufficient rights to use, all of the material tangible Assets, free and clear of all Liens
other than Permitted Liens (but mortgages or deeds of trust shall not constitute acceptable Liens).
To the Knowledge of Seller, such material tangible Assets are suitable for the purposes for which
they are used, subject to ordinary wear and tear.
3.11. Governmental Approvals and Compliance with Laws.
(a) All Consents of all Governmental Authorities which are necessary in order to permit the
Company and Subsidiaries to carry on the Business (collectively, the “Governmental
Approvals”) have been obtained and are in full force and effect, and since the Alcoa Closing
Date have been in full force and effect, except where the failure to obtain such Governmental
Approvals and keep them in full force and effect would not individually or in the aggregate
reasonably be expected to have a Material Adverse Effect. There has been no material violation,
cancellation, suspension, modification, revocation or default of any Governmental Approval or any
notice of violation, cancellation, suspension, modification, revocation, default or dispute
affecting any Governmental Approval, and, to the Knowledge of Seller, no basis exists for any such
action, including, without limitation, as a result of the consummation of the transactions
contemplated by this Agreement.
(b) Except as set forth in Section 3.11(b) of the Seller Disclosure Letter, the
Company and the Company Subsidiaries are and since the Alcoa Closing Date have been in compliance
in all material respects with all applicable Laws, and, to the Knowledge of Seller, are not under
investigation with respect to any material violation of any applicable Laws.
3.12. Contracts.
(a) Disclosure. Except as set forth in Section 3.12(a) of the Seller Disclosure
Letter neither the Company nor any Company Subsidiary is a party to or is bound by:
(i) any agreement in respect of the CSI Existing Indebtedness and any other mortgages,
indentures, security agreements, letters of credit and other agreements and instruments
relating to the borrowing of more than $1,000,000 or any extension of credit in, or which
impose any Lien on, any of the material Assets;
(ii) any sales, distribution or marketing agreement involving aggregate payments in
excess of $10,000,000 during a 12-month period;
(iii) any maintenance or servicing agreement involving aggregate payments in excess of
$10,000,000 during a 12-month period;
(iv) any Lease;
(v) any customer agreement involving aggregate payments in excess of $20,000,000
during a 12-month period;
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(vi) any agreement for the lease of equipment or other personal property involving
payments over the remaining term thereof in excess of $1,000,000;
(vii) any agreement, order or commitment for the purchase of materials, supplies,
transportation services or other services, or for the manufacturing of products, which, in
any case, individually (or with respect to a series of related agreements, orders or
commitments, in the aggregate) have an unexpired term of more than three months and which
individually (or with respect to a series of related agreements, orders or commitments, in
the aggregate) involve payments in excess of $30,000,000;
(viii) any material licensing or other agreement relating to Intellectual Property;
(ix) any agreement or commitment for the construction or acquisition of fixed assets
or other capital expenditures that individually (or, with respect to a series of related
agreements, in the aggregate) involve payments in excess of $10,000,000;
(x) any agreement or commitment involving the purchase, sale, distribution, lease or
other disposition of any Asset, other than sales of inventory in the ordinary course of
business, consistent with past practice, including, but not limited to, any such Contracts
or commitments that contain executory indemnification obligations that involve payments in
excess of $10,000,000; and
(xi) agreement or commitment limiting the freedom of the Company or any Company
Subsidiary to compete in any line of business or in any geographical area or with any
Person;
(b) Each Contract required to be disclosed in the Seller Disclosure Letter pursuant to Section
3.12(a), together with any Contract meeting the above descriptions that may be entered into after
the date hereof in compliance with Section 5.2, is referred to herein as a “Material
Contract.” Seller has made available to Buyer complete and correct copies of all Material
Contracts.
(c) Enforceability. Except as set forth in Section 3.12(c) of the Seller
Disclosure Letter, there does not exist under any Material Contract any violation, breach or
event of default, or event or condition that, after notice or lapse of time or both, would
constitute a material violation, breach or event of default thereunder, on the part of any of the
Company or any Company Subsidiary or, to the Knowledge of Seller, any other Person. Except as set
forth in Section 3.12(c) of the Seller Disclosure Letter, no Material Contract contains any
change in control or other terms or conditions that will become applicable or inapplicable as a
result of the consummation of the transactions contemplated by this Agreement.
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3.13. Litigation and Claims. Except as set forth in Section 3.13 of the Seller
Disclosure Letter, as of the date hereof, (a) there is no Litigation pending or, to the
Knowledge of Seller, threatened which seeks to enjoin or prohibit, or otherwise questions the
validity of, any action taken or to be taken in connection with this Agreement, (b) there
is no material Litigation pending or, to the Knowledge of Seller, threatened against or affecting
the Company, or any Company Subsidiary or affecting the Business or any of the Assets, and
(c) there is no outstanding order, judgment, injunction, award or decree of any
Governmental Authority or any settlement agreement binding upon Seller, the Company or the Company
Subsidiaries which affects the ownership, use or operation of the Business or the Assets.
3.14. Intellectual Property.
(a) Title. All of the Intellectual Property that was or is being developed by or for
the Company and the Company Subsidiaries, or that was or is being used or held for use in
connection with, or necessary for the conduct of the Business (collectively, the “Company
Intellectual Property”), is owned by the Company or a Company Subsidiary (the “Owned
Intellectual Property”), except for (i) any Intellectual Property licensed to the
Company or Company Subsidiaries and set forth in Section 3.14(a) of the Seller Disclosure
Letter and (ii) licenses for commercially available, off-the-shelf and/or
shrink-wrapped software. The Company and the Company Subsidiaries are the sole legal and
beneficial owners of, have good and marketable title to, own the entire right, title and interest
in, and have the full right to use in connection with the Business, the Company Intellectual
Property, free from any Liens other than Permitted Liens. Immediately after the Closing, the
Company and the Company Subsidiaries, subject to the receipt of any third party Consents, shall own
or have validly licensed to them all the Company Intellectual Property, in each case free from
Liens other than Permitted Liens and on the same terms and conditions as in effect prior to the
Closing, except as otherwise disclosed in Section 3.14(a) of the Seller Disclosure Letter.
(b) No Infringement. To the Knowledge of Seller, (i) the conduct of the
Business does not infringe or otherwise conflict with any rights of any Person in respect of any
Intellectual Property and (ii) none of the Owned Intellectual Property has been or is being
infringed or otherwise used or available for use by any Person without a license or permission from
the Company or a Company Subsidiary, except as set forth in Section 3.14(b) of the Seller
Disclosure Letter.
3.15. Tax Matters.
Except as set forth in Section 3.15 of the Seller Disclosure Letter,
(a) Since the Alcoa Closing Date, all material Tax Returns required to be filed with respect
to the Company and any Company Subsidiary have been filed and all such Tax Returns are complete and
correct in all material respects;
22
(b) Since the Alcoa Closing Date, all material Taxes required to be withheld by the Company or
any Company Subsidiary has been duly and timely withheld, and such withheld Taxes have been either
duly and timely paid to the proper Governmental Authority or properly set aside in accounts for
such purpose;
(c) Since the Alcoa Closing Date, no written agreement or other document waiving or extending,
or having the effect of waiving or extending, the statute of limitations or the period of
assessment or collection of any material Taxes with respect to the Company or any Company
Subsidiary, and no written power of attorney with respect to any such Taxes has been filed or
entered into with any Taxing Authority;
(d) No material Taxes with respect to the Company or any Company Subsidiary are currently
under any audit, examination or investigation by any Taxing Authority that commenced after the
Alcoa Closing Date. Since the Alcoa Closing Date, no Taxing Authority has asserted or threatened
to assert in writing any deficiency, claim or issue with respect to material Taxes or any
adjustment to material Taxes against the Company or any Company Subsidiary;
(e) Since the Alcoa Closing Date, neither the Company nor any Company Subsidiary (i)
has received or applied for a Tax ruling or entered into a closing agreement with any Taxing
Authority in respect of material Taxes, in either case that would be binding upon the Company or
any Company Subsidiary after the Closing Date, (ii) has become a party to or become bound
by, or become subject to an obligation under, any material Tax allocation, sharing, indemnity or
similar agreement or arrangement or (iii) is or has been a member of any affiliated,
consolidated, combined or unitary group, other than a consolidated, affiliated, combined or unitary
group that had the Company as the common parent, for purposes of filing Tax Returns or paying
Taxes, or become subject to any liability for material Taxes of any Person as a result of being a
member of such an affiliated, consolidated, combined or unitary group, as a transferee, as a
successor, by Contract or otherwise;
(f) There are no material outstanding adjustments for Tax purposes applicable to the Company
or any Company Subsidiary as a result of changes in methods of accounting occurring after the Alcoa
Closing Date;
(g) None of the Assets is subject to any Tax liens (other than Permitted Liens) created after
the Alcoa Closing Date with respect to Taxes;
(h) Neither the Company nor any Company Subsidiary will be required to include any material
item of income in, or exclude any material item of deduction from, taxable income for any taxable
period (or portion thereof) beginning after the Closing Date as a result of any (i) change
in method of accounting for a taxable period ending prior to the Closing Date and beginning after
the Alcoa Closing Date; (ii) “closing agreement”, as described in section 7121 of the Code
(or any corresponding or similar provision of state,
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local or foreign income Law) executed prior to the Closing Date but after the Alcoa Closing
Date; or (iii) intercompany transaction or excess loss account described in Treasury
Regulations under Section 1502 of the Code (or any corresponding or similar provision of state,
local or foreign income Law) occurring prior to the Closing Date but after the Alcoa Closing Date;
(i) Since the Alcoa Closing Date, neither the Company nor any Company Subsidiary has
participated in a “listed transaction” within the meaning of Treasury Regulations Section
1.6011-4(c)(3)(i)(A); and
(j) Since the Alcoa Closing Date, neither the Company nor any Company Subsidiary has
distributed stock of another Person, or has had its stock distributed by another Person, in a
transaction that was purported or intended to be governed in whole or in part by Section 355 or 361
of the Code;
3.16. Joint Venture Entities. The operative agreements to which any Company or
Company Subsidiary is a party relating to their investment in any Joint Venture Entity is set forth
on Section 3.16 of the Seller Disclosure Letter (each such agreement, a “Joint Venture
Agreement”). Except as set forth in the Joint Venture Agreements, no Seller, Company or
Company Subsidiary has any contractual obligation to (a) make any additional capital
contributions to any Joint Venture Entity, (b) purchase any securities of any Joint Venture
Entity, (c) make any loans to any Joint Venture Entity, other than in the ordinary course
of business, consistent with past practice or (d) otherwise provide any financial
assistance or support of any kind to any Joint Venture Entity, other than in the ordinary course of
business, consistent with past practice.
3.17. Employee Benefit Plans and Related Matters.
(a) Except as set forth in Section 3.17 of the Seller Disclosure Letter, neither the
Company nor any Company Subsidiary is a party to, is bound by, or has any actual or contingent
liability in respect of, any Employee Plan other than pursuant to the terms thereof. With respect
to each Employee Plan, the following documents have been made available to Buyer: (i) the
Employee Plan documents; (ii) any funding agreement or amendments thereto; (iii)
the most recent actuarial report; (iv) all regulatory returns, reports, statements or
filings made or completed within the two years prior to the date hereof; (v) the most
recent summaries and booklets describing or giving particulars of the plan; and (vi) all
material correspondence with all regulatory authorities.
(b) Except for matters which would not, individually, or in the aggregate, be reasonably
likely to have a Material Adverse Effect and except as set out in Section 3.17(b) of the Seller
Disclosure Letter:
(i) Except as accrued in accordance with the terms of the Employee Plans as of the
date hereof, neither the Company nor any Company Subsidiary has
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incurred any material liability, and no event, transaction or condition has occurred
or exists that could result in any material liability, on account of any Employee Plans,
including, but not limited to, material liability for (x) additional contributions
required to be made under the terms of any Employee Plan or its related trust, insurance
Contract or other funding arrangement with respect to periods ending on or prior to the
date hereof which are not reflected, reserved against or accrued in the Financial
Statements; or (y) breaches by the Company or any Company Subsidiary, or, to the
Knowledge of Seller, the trustees under the trusts created under the Employee Plans, or any
other Persons under ERISA or any other applicable Law. Each of the Employee Plans has been
operated and administered in material compliance with its terms, all applicable Laws and,
if applicable, collective bargaining agreements.
(ii) Each Employee Plan which is intended to be “qualified” within the meaning of
Section 401(a) of the Code, and the trust (if any) forming a part thereof, has received or
requested a favorable determination letter or is covered by an opinion letter from the
Internal Revenue Service and, to the Knowledge of Seller, no event has occurred and no
condition exists which could reasonably be expected to result in the revocation of any such
determination. All amendments and actions required to bring each such Employee Plan into
conformity with the applicable provisions of ERISA, the Code, and any other applicable Laws
as of the date hereof have been made or taken.
(iii) There are no pending or threatened claims by or on behalf of any participant in
any of the Employee Plans, other than routine claims for benefits in the ordinary course.
The Employee Plans are not presently under audit or examination (nor has notice been
received of a potential audit or examination) by the Internal Revenue Service or the
Department of Labor.
(iv) Except as set out in Section 3.17(b)(iv) of the Seller Disclosure Letter,
None of the Employee Plans provides benefits of any kind with respect to current or former
employees, officers, or directors (or their beneficiaries) of the Company or any Company
Subsidiary beyond their retirement or other termination of employment, other than
(x) coverage for benefits mandated by Section 4980B of the Code, (y) death
benefits or retirement benefits under an employee pension benefit plan (as defined by
Section 3(2) of ERISA), or (z) benefits, the full cost of which is borne by such
current or former employees, officers, directors or beneficiaries.
(v) No Employee Plan sponsored by the Company or any Company Subsidiary is a
“multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or a “multiple
employer plan” as addressed in section 4063 or 4064 of ERISA. Except as set out on
Section 3.17(b)(v) of the Seller Disclosure Letter, no
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Employee Plan sponsored by the Company or Company Subsidiary is subject to Title IV of
ERISA.
(vi) The consummation of the transactions contemplated by this Agreement will not
result in (x) any payment (including, without limitation, severance, unemployment
compensation, golden parachute, bonus payments or otherwise) becoming due under any
agreement or oral arrangement to any current or former director, officer, employee or
consultant of the Company or any Company Subsidiary, (y) any increase in the amount
of salary, wages or other benefits payable to any director, officer, employee or consultant
of the Company or any Company Subsidiary, or (z) any acceleration of the vesting or
timing of payment of any benefits or compensation (including, without limitation, any
increased or accelerated funding obligation) payable to any director, officer, employee or
consultant of the Company or any Company Subsidiary.
3.18. Environmental Matters.
(a) Except as disclosed in Section 3.18 of the Seller Disclosure Letter:
(i) To the Knowledge of Seller, the Company and each Company Subsidiary has complied
since the Alcoa Closing Date and is in compliance in all material respects with all
applicable Environmental Laws;
(ii) To the Knowledge of Seller, the Company and each Company Subsidiary has obtained
and is in compliance in all material respects with all Environmental Permits with respect
to the operation of the Business as currently conducted and no action is pending or to the
Knowledge of Seller threatened to revoke or suspend any material Environmental Permit.
(iii) No Litigation is pending, or to the Knowledge of Seller, threatened by any
Person involving the Company or any Company Subsidiary arising out of any Environmental
Law, other than such Litigation that would not reasonably be expected to have a Material
Adverse Effect.
(iv) Neither the Company nor any of its Subsidiaries has since the Alcoa Closing Date
released Hazardous Substances into the soil or groundwater at, under or from the Owned Real
Property or Leased Real Property, which, as of the date hereof, requires remediation by the
Company or any of its Subsidiaries under applicable Environmental Laws that would
reasonably be expected to have a Material Adverse Effect.
(b) Notwithstanding any of the representations and warranties contained elsewhere in this
Agreement, the representations and warranties contained in this Section
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3.18 are the sole and exclusive representations relating to matters arising under
Environmental Laws.
3.19. Brokerage or Finder’s Fees. Neither Seller, the Company nor any Company
Subsidiary has incurred any liability to any broker, finder or agent for any fees or commissions or
similar compensation with respect to the transactions contemplated by this Agreement.
3.20. Insurance. To the Knowledge of Seller, Section 3.20 of the Seller Disclosure
Letter contains a complete and accurate list of all pending Litigation that is covered under
insurance policies maintained by (a) the Company and the Company Subsidiaries or
(b) Seller or its Affiliates for the benefit of the Company and the Company Subsidiaries.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as of the date hereof and as of the Closing
Date, as follows:
4.1. Organization and Authority of Buyer. Buyer is a private limited liability
company (société à responsabilité limitée) duly organized, validly existing and in good standing
under the laws of the Grand Duchy of Luxembourg. Buyer has the requisite corporate power and
authority to carry on its business as now conducted, to execute and deliver this Agreement, to
perform its obligations hereunder and thereunder, and to consummate the transactions contemplated
hereby and thereby.
4.2. Due Authorization by Buyer. The execution of this Agreement by Buyer and the
performance by Buyer of the transaction contemplated hereby have been duly authorized or, as of the
Closing Date, shall have been duly ratified, by all necessary corporate action of Buyer. Buyer has
duly executed and delivered this Agreement. This Agreement constitutes valid and binding
obligations of Buyer, enforceable against Buyer in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other
similar Laws now or hereafter in effect relating to or limiting creditors’ rights generally and
general principles of equity.
4.3. Litigation. There is no Litigation pending, or to the knowledge of Buyer,
threatened, which seeks to enjoin or prohibit, or otherwise questions the validity of, any action
taken or to be taken by Buyer in connection with this Agreement.
4.4. Brokerage or Finder’s Fees. Neither Buyer nor any of its Affiliates, has
incurred any liability to any broker, finder or agent for any fees or commissions or similar
compensation with respect to the transactions contemplated by this Agreement that would be payable
by Seller, the Company or any Company Subsidiary.
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ARTICLE V
COVENANTS
5.1. Information Prior to Closing. From the date hereof to and including the Closing
Date, Seller will cause the Company and the Company Subsidiaries to make the management and other
employees of the Company and the Company Subsidiaries reasonably available to Buyer and certain of
their authorized representatives and provide Buyer and its accountants, legal counsel and certain
of their other authorized representatives (including, in each case and without limitation, the
financing sources and their representatives) reasonable access during normal business hours to, and
permit such Persons to review, upon a mutually agreed schedule, the properties, books, Contracts,
accounts and records of the Company and Company Subsidiaries, and to provide or assist in providing
such other information to Buyer and certain of its authorized representatives as shall have been
reasonably requested by Buyer or such authorized representatives (including, without limitation, if
requested by Buyer) in order that Buyer may have the opportunity to make such investigation as they
shall desire to make of the affairs of the Company and the Company Subsidiaries.
5.2. Conduct of Business.
(a) From the date hereof until the Closing, except as expressly contemplated by this
Agreement, including, for the avoidance of doubt, actions contemplated in respect of the CSI
Contribution, the CSI New Indebtedness and Approved Restructuring Actions, Seller shall cause the
Company and Company Subsidiaries to conduct the Business in the ordinary course consistent with
past practice and to use their reasonable best efforts to preserve intact the Business, the Assets
and the relationships of the Company and the Company Subsidiaries with customers, suppliers and
others having business dealings with them, and to keep available the services of their present
officers and significant employees.
(b) Without limiting the generality of Section 5.2(a) from the date hereof until the Closing,
except as otherwise expressly contemplated by this Agreement, including for the avoidance of doubt,
actions contemplated in respect of the CSI Contribution, the CSI New Indebtedness and Approved
Restructuring Actions, or as set forth in Section 5.2 of the Seller Disclosure Letter,
Seller will not permit the Company or any of Company Subsidiaries to:
(i) merge or consolidate with any other Person;
(ii) sell, lease, transfer or dispose any of its Assets, other than in the ordinary
course of business, consistent with past practice;
(iii) purchase, acquire or obtain any capital stock or other proprietary interest,
directly or indirectly, in any other Person unless (x) such Person is, prior to
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such transaction, a wholly-owned Company Subsidiary or (y) the aggregate consideration
paid by the Company or any Company Subsidiary in any transaction does not exceed
$2,000,000;
(iv) purchase, acquire or obtain all or a substantial portion of the business or
assets of another Person;
(v) declare or pay any dividend or make any other distribution or payment with respect
to equity securities of the Company or any Company Subsidiary;
(vi) establish, adopt or amend any Employee Plan; or
(vii) agree or commit to do any of the foregoing.
5.3. Consummation of the Transactions; Notice.
(a) Subject to the terms and conditions herein provided (including Section 6.3 hereof), Buyer
and Seller each agree to use their commercially reasonable efforts to take, or cause to be taken,
all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate
and make effective, as promptly as practicable, the transactions contemplated by this Agreement and
to cooperate with the other parties hereto in connection with the foregoing, including, without
limitation, using their commercially reasonable efforts to (i) obtain all necessary
Consents, clearances, approvals and authorizations as are required to be obtained under applicable
Law, (ii) defend all lawsuits or other legal proceedings and contest and resist any action
challenging this Agreement or the consummation of the transactions contemplated hereby or
(iii) cause to be lifted or rescinded any injunction or restraining order or other order
adversely affecting the ability of the parties to consummate the transactions contemplated hereby.
(b) Seller and Buyer each shall give prompt written notice to the other of (i) any of
its representations or warranties contained in this Agreement becoming untrue or inaccurate in any
respect (including receiving knowledge of any fact, event or circumstance which may cause any
representation qualified as to knowledge to be or become untrue or inaccurate in any respect) or
(ii) the failure by it to comply with or satisfy in any material respect any covenant,
condition or agreement to be complied with or satisfied by it under this Agreement;
provided, however, that no such notification shall affect the representations,
warranties, covenants or agreements of the parties or their respective rights and obligations or
the conditions to their obligations under this Agreement.
5.4. Tax Matters.
(a) Seller shall prepare and file as required by applicable Law with the appropriate Taxing
Authority (or cause to be prepared and filed) in a timely manner Tax
29
Returns of the Company and any the Company Subsidiaries that are required to be filed on or
prior to the Closing Date. All such Tax Returns shall be prepared in a manner consistent with most
recent past practice, except as otherwise required by applicable Law. Seller shall make any such
Tax Returns available for review by Buyer sufficiently in advance of the due date for filing such
Tax Returns to provide Buyer with a meaningful opportunity to analyze and comment on such Tax
Returns and for such Tax Returns to be modified, as appropriate, before filing.
(b) Buyer shall prepare and file as required by applicable Law with the appropriate Taxing
Authority (or cause to be prepared and filed) in a timely manner all Tax Returns of the Company and
Company Subsidiaries, other than those described in Section 5.4(a). All such Tax Returns shall be
prepared in a manner consistent with most recent past practice, except as otherwise required by
applicable Law. Buyer shall make any Tax Returns relating to Pre-Closing Income Taxes available
for review by Seller sufficiently in advance of the due date for filing such Tax Returns to provide
Seller with a meaningful opportunity to analyze and comment on such Tax Returns and for such Tax
Returns to be modified, as appropriate, before filing.
(c) After the Closing, Buyer shall not, and shall not permit any of its Affiliates to, amend
any Tax Returns or change any Tax elections or accounting methods with respect to the Company or
any Company Subsidiary relating to any Pre-Closing Tax Period without Seller’s consent to the
extent such amendment or change could reasonably be expected to have a material cost to Seller,
except as required by applicable Law.
(d) Buyer shall promptly notify Seller in writing upon receipt by the Company or any Company
Subsidiary, or Buyer or any of its Affiliates of notice of any Tax audits, examinations or
assessments that could give rise to a liability for which Seller is responsible under this
Agreement. Seller shall control the portion of any such audit, examination or proceeding that
relates to any Taxes for which Seller is responsible pursuant to this Agreement, provided that
Seller shall not settle or compromise any such audit, examination or proceeding without the consent
of Buyer, which consent shall not be unreasonably withheld. If any audit involves both Taxes for
which Seller is responsible pursuant to this Agreement and other Taxes for which Seller is not
responsible pursuant to this Agreement, and the portion of such audit involving Taxes for which
Seller is responsible pursuant to this Agreement can not be separated from the portion of the audit
involving other Taxes, Buyer shall control such audit, provided that (i) Buyer
shall keep Seller reasonably informed about the progress of such audit, (ii) Buyer shall provide
Seller with an opportunity (at Seller’s expense) to participate in such audit and (iii) Buyer shall
not settle or resolve such audit without the consent of Seller, which consent shall not be
unreasonably withheld.
(e) All real property transfer or sales, use, transfer, value added, stock transfer and stamp
Taxes, and transfer, recording, registration and other fees and any similar Taxes that become
payable in connection with the transactions contemplated by this Agreement
30
(together with any related interest, penalties or additions to Tax) shall be borne equally
between Seller and Buyer.
(f) For the purpose of the financial arrangements rules in the Income Tax Xxx 0000 (NZ), the
Buyer and Seller agree that:
(i) the Purchase Price for the Shares is the lowest price (within the meaning of
section EW 32(3) of the Income Tax Xxx 0000 (NZ)) that Buyer and Seller would have agreed
for the sale and purchase of the Shares, on the date hereof, if payment would have been
required in full at the time the first right in the contracted property (being the Shares)
was transferred;
(ii) the Purchase Price of the Shares is the value of the Shares; and
(iii) they will compute their taxable income for the relevant period on the basis that
the Purchase Price for the Shares includes no capitalized interest and will file their Tax
Returns accordingly.
(g) Unless expressly stated otherwise in this agreement, GST chargeable on any Taxable Supply
made under or in connection with this Agreement is payable by the Person required to provide the
consideration for that supply, in cash, in addition to, and at the same time as, the balance of any
other consideration payable for that supply, provided that the supplier has issued a Tax invoice
for that supply. Without limiting the application of the foregoing, where a party is required to
reimburse another party for any cost, expense or liability incurred, the amount to be reimbursed
shall be reduced by any Input Tax or other deduction from Output Tax which the party seeking
reimbursement is entitled to claim in relation to that cost, expense or liability.
5.5. Insurance. Seller shall cause to be maintained until the Closing with respect to
each member of the Target Group, coverage under all the insurance policies related to the Business
that are in effect on the date hereof. Following the Closing, Seller shall and shall cause its
Affiliates (i) not to seek to change any rights or obligations of the Company or any
Company Subsidiary under such insurance, (ii) to cooperate with the Company and the Company
Subsidiaries in making claims under such insurance and (iii) promptly pay over to the Company any
amounts Seller or any such Affiliate (other than the Company or any Company Subsidiary) may receive
under such insurance in respect of Losses experienced by the Company or any Company Subsidiary.
Buyer agrees to arrange for its own insurance policies (which may include self-insurance) with
respect to the Target Group covering all periods from and after the Closing.
5.6. Restructuring. Seller shall have the right, on or prior to the Closing Date, to
undertake, at its own expense, those restructuring steps or other actions that are set forth in
Section 5.6 of the Seller Disclosure Letter (each such step or transaction, an
“Approved Restructuring Action”).
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5.7. Financing. Seller agrees to cooperate with reasonable requests by Buyer to
facilitate the satisfaction of the Final Closing Condition , including causing the Company and the
Company Subsidiaries to contact lenders of the Xxxxxxxx Existing Indebtedness to arrange for payoff
letters and documents evidencing the discharge and release of security interests. Seller agrees
that its obligation to perform the Closing and satisfy the matters described in paragraph (ii) of
the definition of Final Closing Condition will be unconditional once the CSI New Indebtedness has
been received in the bank account or accounts nominated in accordance with Section 2.2(a) above
(which shall satisfy paragraph (i) of the definition of Final Closing Condition).
ARTICLE VI
CONDITIONS PRECEDENT
TO BUYER’S OBLIGATION TO CLOSE
TO BUYER’S OBLIGATION TO CLOSE
The obligation of Buyer to consummate the transaction herein contemplated is subject to the
satisfaction at or before the Closing of the following conditions:
6.1. Truth of Representations and Warranties. The representations and warranties of
Seller (a) set forth in Sections 3.2 and 3.3 shall be true and correct on the date hereof
and as of the Closing Date as though made on and as of such date, and (b) all other
representations and warranties of Seller made in this Agreement (without regard to any
qualifications therein as to materiality or Material Adverse Effect) shall be true and correct as
of the date hereof and as of the Closing Date as though made on and as of such date (or, in each
case, as of any earlier date as to which such representation and warranty speaks), except, solely
with respect to this clause (b), breaches of such other representations and warranties, which,
individually or in the aggregate, would not have or reasonably be expected to have a Material
Adverse Effect.
6.2. Performance of Agreements. Each agreement, covenant or obligation of Seller to
be performed at or before the Closing pursuant to the terms hereof or as contemplated herein shall
have been duly performed in all material respects, unless waived in writing by Buyer, and Buyer
shall have received a certificate to this effect dated the Closing Date and signed by Seller.
6.3. No Legal Obstruction and receipt of Approvals. No action, suit, proceeding,
Litigation or investigation shall be pending before any Governmental Authority which questions the
validity or legality of this Agreement or any action taken or to be taken in connection herewith or
the consummation of the transactions contemplated hereby. Any material approvals or Consents of
any Governmental Authority necessary to consummate the transactions contemplated hereby shall have
been obtained. No injunction or other order issued by a court of competent jurisdiction
restraining or prohibiting the consummation of the transactions contemplated by this Agreement
shall be in effect.
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6.4. CSI Contribution. The CSI Contribution shall have been completed on or prior to
the Closing Date.
6.5. Ancillary Agreements. The Rank Letter Agreement and the Services Agreements
shall have been executed and delivered by the parties thereto (other than Buyer and its
Subsidiaries).
6.6. Satisfaction of Conditions to the Xxxxxxxx Sale. The satisfaction or waiver by
Buyer of all conditions of Buyer under the Xxxxxxxx Purchase Agreement, it being understood that
the closing of the transactions contemplated by the Xxxxxxxx Purchase Agreement and this Agreement
shall occur contemporaneously.
ARTICLE VII
CONDITIONS PRECEDENT TO SELLER’S OBLIGATION TO CLOSE
The obligation of Seller to consummate the transactions herein contemplated is subject to the
satisfaction at or before the Closing of the following conditions:
7.1. Truth of Representations and Warranties. The representations and warranties of
Buyer contained in this Agreement shall be true and correct on the date hereof and on and as of the
Closing Date as though made on and as of such date, except for representations and warranties
expressly made only as of a specific date, except for breaches of such representations and
warranties which, individually or in the aggregate, would not have or reasonably be expected to
have a Material Adverse Effect.
7.2. Performance of Agreements. Each agreement, covenant or obligation of Buyer to be
performed at or before the Closing pursuant to the terms hereof or as contemplated herein shall
have been duly performed in all material respects, unless waived by Seller, and Seller shall have
received a certificate to this effect dated the Closing Date and signed by Buyer.
7.3. No Legal Obstruction and receipt of Approvals. No action, suit, proceeding,
Litigation or investigation shall be pending before any Governmental Authority which questions the
validity or legality of this Agreement or any action taken or to be taken in connection herewith or
the consummation of the transactions contemplated hereby. Any material approvals or Consents of
any Governmental Authority necessary to consummate the transactions contemplated hereby shall have
been obtained. No injunction or other order issued by a court of competent jurisdiction
restraining or prohibiting the consummation of the transactions contemplated by this Agreement
shall be in effect.
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ARTICLE VIII
INDEMNIFICATION
8.1. Survival. Subject to Section 8.4(f), (i) the representations and
warranties of the parties contained in this Agreement shall survive the Closing until the first
anniversary of the Closing Date; provided that the representations and warranties in Sections 3.1,
3.2, 3.3, 3.4, 3.19, 4.1, 4.2 and 4.4 (the “Fundamental Representations”) shall survive
indefinitely or until the latest date permitted by Law, and the representations and warranties in
Section 3.15 shall not survive the Closing and shall expire as of the Closing and (ii) the
covenants and agreements of the parties contained in this Agreement shall survive the Closing
indefinitely or for the shorter period explicitly specified therein. Notwithstanding the preceding
sentence, but subject to Section 8.4(f), any breach of representation, warranty, covenant or
agreement in respect of which indemnity may be sought under this Agreement shall survive the time
at which it would otherwise terminate pursuant to the preceding sentences, if notice of the
inaccuracy or breach thereof giving rise to such right of indemnity shall have been given to the
party against whom such indemnity may be sought prior to such time.
8.2. Indemnification by Seller. From and after the Closing, and subject to this
Article VIII, Seller shall defend, indemnify and hold harmless each of Buyer, its Affiliates, and,
after the Closing, the Company and the Company Subsidiaries, and their respective officers,
directors, employees, agents, successors and assigns (collectively, the “Buyer
Indemnitees”) from and against, and pay or reimburse the Buyer Indemnitees for, any and all
Losses resulting from (a) any inaccuracy in or breach of any representation or warranty
made by Seller in Article III of this Agreement (without giving effect to any Material Adverse
Effect or materiality qualification contained therein except to the extent contained in Sections
3.1, 3.4, 3.6, 3.8, 3.9, 3.10, 3.11, 3.12(c), 3.17(b), and 3.18) provided that no such inaccuracy
or breach shall be deemed to exist for purposes of this Article VIII to the extent such inaccuracy
or breach is attributable to any facts or events occurring or existing prior to the Alcoa Closing
Date, (b) any breach or default in performance by Seller (or, prior to the Closing, the
Company or any Company Subsidiary) of any covenant or agreement under this Agreement or (c)
any Pre-Closing Income Taxes to the extent, and only to the extent, that the aggregate amount of
all Pre-Closing Income Taxes exceed $25,000,000.
8.3. Indemnification by Buyer. From and after the Closing, and subject to this
Article VIII, Buyer shall defend, indemnify and hold harmless Seller and its officers, directors,
employees, agents, successors and assigns (collectively, the “Seller Indemnitees”) from and
against, and pay or reimburse the Seller Indemnitees for, any and all Losses resulting from
(a) any inaccuracy in or breach of any representation or warranty made by Buyer in Article
IV of this Agreement or (b) any breach or default in performance by Buyer of any covenant
or agreement under this Agreement.
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8.4. Limitations on Indemnity. Buyer and Seller agree, for themselves and on behalf
of the Buyer Indemnitees and the Seller Indemnitees:
(a) No Buyer Indemnitee will assert any claims for indemnification under Section 8.2(a):
(i) in respect of any individual Loss incurred or suffered by such Buyer Indemnitee that is
not in excess of $500,000 (a “Qualifying Loss”), and (ii) until such time as the
aggregate of all Qualifying Losses that Buyer Indemnitees may have under Section 8.2(a) exceeds an
amount equal to $5,000,000 (the amount referred to in this clause (ii), the “Indemnity
Threshold”), and then only for the aggregate amount of all Qualifying Losses in excess of the
Indemnity Threshold. The aggregate liability of Seller in respect of claims for indemnification
pursuant to Sections 8.2(a) or (c) will not exceed an amount equal to $135,000,000 (the
“Cap”). Notwithstanding anything to the contrary set forth herein, the Indemnity Threshold
and the Cap will not apply to the obligations of Seller to indemnify the Buyer Indemnitees in
connection with an inaccuracy in or breach of the representation and warranties contained in
Sections 3.3(a) and 3.10 nor any claim as a result of a failure to satisfy the Final Closing
Condition after the CSI New Indebtedness has been incurred by the relevant Company Subsidiaries.
(b) No Seller Indemnitee will assert any claims for indemnification under Section 8.3(a):
(i) in respect of any individual Loss incurred or suffered by such Seller Indemnitee that
is not a Qualifying Loss and (ii) until such time as the aggregate of all Qualifying Losses
that Seller Indemnitees may have under Section 8.3(a) exceeds the Indemnity Threshold, and then
only for the aggregate amount of all Qualifying Losses in excess of the Indemnity Threshold. The
aggregate liability of Buyer in respect of claims for indemnification pursuant to Section 8.3(a)
will not exceed the Cap. Notwithstanding anything to the contrary set forth herein, the Indemnity
Threshold and the Cap and the other provisions of this Section 8.4 will not apply to the
obligations of Buyer to indemnify the Seller Indemnitees in connection with an inaccuracy in or
breach of any Fundamental Representation.
(c) For purposes of determining the amount of any Losses subject to indemnification under this
Article VIII, the amount of such Losses will be determined net of all related reserves accrued in
respect of the specific matter subject to indemnification on the Closing Balance Sheet or reflected
in the final Closing Net Working Capital Amount.
(d) With respect to each indemnification obligation in this Agreement: (i) all Losses
shall be net of any Eligible Insurance Proceeds; (ii) in no event shall an Indemnifying
Party have liability to the Indemnified Party for any punitive damages, except if and to the extent
any such damages are recovered against an Indemnified Party pursuant to a Third Party Claim; and
(iii) the parties shall treat any indemnification payment made under this Agreement as an
adjustment to the Purchase Price.
(e) If any portion of Losses to be reimbursed by the Indemnifying Party may be covered, in
whole or in part, by third-party insurance coverage, the Indemnified Party shall
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promptly give notice thereof to the Indemnifying Party (a “Notice of Insurance”). If
the Indemnifying Party so requests within 180 days after receipt of a Notice of Insurance, the
Indemnified Party shall use its commercially reasonable efforts to collect the maximum amount of
insurance proceeds thereunder, in which event all such proceeds actually received, net of costs
reasonably incurred by the Indemnified Party in seeking such collection, shall be considered
“Eligible Insurance Proceeds.” Any amount payable by an Indemnifying Party pursuant to
this Article VIII shall be paid promptly and payment shall not be delayed pending any determination
of Eligible Insurance Proceeds. In any case where an Indemnified Party recovers from a third
Person any Eligible Insurance Proceeds and/or any other amount in respect of any Losses for which
an Indemnifying Party has actually reimbursed it pursuant to this Article VIII, such Indemnified
Party shall promptly pay over to the Indemnifying Party such Eligible Insurance Proceeds and/or the
amount so recovered (after deducting therefrom the amount of expenses incurred by it in procuring
such recovery), but not in excess of the sum of (i) any amount previously paid by the
Indemnifying Party to or on behalf of the Indemnified Party in respect of such claim and
(ii) any amount expended by the Indemnifying Party in pursuing or defending any claim
arising out of such matter.
(f) Any Indemnified Party shall take all commercially reasonable steps to mitigate any Losses
incurred by such party upon and after becoming aware of any event or condition that would
reasonably be expected to give rise to any indemnification rights hereunder.
(g) Notwithstanding anything to contrary set forth herein, no indemnification claim may be
asserted under this Agreement by a Buyer Indemnitee or a Seller Indemnitee, as the case may be
(other than a claim for payment pursuant to Article II hereof), from and after the date on which
all or a portion of the equity interests of Seller, Buyer or any parent entity of Seller or Buyer,
is issued to or sold, assigned or otherwise transferred to any Person that is not controlled
directly or indirectly by the Xxxx Group.
(h) If on the Closing Date, Buyer knows of any information that would cause one or more of the
representations and warranties made by Seller to be inaccurate as of the date made or as of the
Closing Date, Buyer shall have no right or remedy after the Closing with respect to such inaccuracy
and shall be deemed to have waived its rights to indemnification in respect thereof. Without
limiting the foregoing, Buyer shall be charged with knowledge of any information contained in any
data room or diligence report made available by or on behalf of Seller to Buyer and all publicly
disclosed information regarding the Business.
(i) Notwithstanding anything to the contrary herein, no party to this Agreement (or any of its
Affiliates) shall, in any event, be liable or otherwise responsible to any other party to this
Agreement for an amount in excess of the Purchase Price.
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(j) Notwithstanding anything to the contrary herein, Seller shall not be required to defend,
indemnify or hold harmless any of the Buyer Indemnitees for any Losses relating to Taxes except
pursuant to Section 8.2(c).
8.5. Notification of Claims; Third Party Claims.
(a) A Person that may be entitled to be indemnified under this Agreement (the “Indemnified
Party”) shall promptly notify the party or parties liable for such indemnification (the
“Indemnifying Party”) in writing of any claim in respect of which indemnity may be sought
under this Article VIII, including any pending or threatened claim or demand by a third party that
the Indemnified Party has determined has given or could reasonably give rise to a right of
indemnification under this Agreement (including a pending or threatened claim or demand asserted by
a third party against the Indemnified Party, such claim being a “Third Party Claim”),
describing in reasonable detail the facts and circumstances with respect to the subject matter of
such claim or demand; provided, however, that the failure to provide such notice shall not
release the Indemnifying Party from any of its obligations under this Article VIII except to the
extent the Indemnifying Party is materially prejudiced by such failure. The parties agree that
(i) in this Article VIII they intend to shorten (in the case of the limited survival
periods specified in Section 8.1) the applicable statute of limitations period with respect to
certain claims, (ii) notices for claims in respect of a breach of a representation,
warranty, covenant or agreement (other than a post-Closing covenant) must be delivered prior to the
expiration of any applicable survival period specified in Section 8.1 for such representation,
warranty, covenant or agreement, (iii) notices for claims in respect of a breach of a
post-Closing covenant must be delivered prior to the date that is six months after the last day of
the effective period of such post-Closing covenant,(iv) any claims for Pre-Closing Income
Taxes must be submitted by last day of the applicable statue of limitations, and (v) any
claims for indemnification for which notice is not timely delivered in accordance with this Section
8.5 shall be expressly barred and are hereby waived, provided that if, prior to such applicable
date, a party shall have notified any other party in accordance with the requirements of this
Section 8.5 of a claim for indemnification under this Article VIII (whether or not formal legal
action shall have been commenced based upon such claim), such claim shall continue to be subject to
indemnification in accordance with this Article VIII notwithstanding the passing of such applicable
date.
(b) Upon receipt of a notice of a claim for indemnity from an Indemnified Party pursuant to
Section 8.5(a) in respect of a Third Party Claim, the Indemnifying Party may, by notice to the
Indemnified Party delivered within 20 Business Days of the receipt of notice of such Third Party
Claim, assume the defense and control of any Third Party Claim (at the expense of such Indemnifying
Party and so long as the Indemnifying Party acknowledges in writing its obligation to indemnify the
Indemnified Party for Losses related to such Third Party Claim); provided that counsel for
the Indemnifying Party who shall conduct the defense of such Third Party Claim shall be reasonably
satisfactory to the Indemnified Party,
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and the Indemnified Party may participate in such defense at such Indemnified Party’s expense.
The Indemnified Party may take any actions reasonably necessary to defend such Third Party Claim
prior to the time that it receives a notice from the Indemnifying Party as contemplated by the
preceding sentence. If the Indemnifying Party does not promptly assume the defense of such Third
Party Claim following notice thereof, the Indemnified Party shall be entitled to assume and control
such defense and to settle or agree to pay in full such Third Party Claim without the consent of
the Indemnifying Party without prejudice to the ability of the Indemnified Party to enforce its
claim for indemnification against the Indemnifying Party hereunder. The Indemnifying Party shall
not, without the prior written consent of the Indemnified Party (which shall not be unreasonably
withheld), consent to a settlement, compromise or discharge of, or the entry of any judgment
arising from, any Third Party Claim, unless such settlement, compromise or discharge does not
involve any finding or admission of any violation of Law or admission of any wrongdoing by the
Indemnified Party and the Indemnifying Party shall (i) pay or cause to be paid all amounts
arising out of such settlement or judgment concurrently with the effectiveness of such settlement,
(ii) not encumber any of the assets of any Indemnified Party or agree to any restriction or
condition that would apply to or adversely affect any Indemnified Party and (iii) obtain,
as a condition of any settlement or other resolution, a complete and unconditional release of each
Indemnified Party from any and all liability in respect of such Third Party Claim. The
Indemnifying Party shall keep the Indemnified Party reasonably updated with respect to material
developments relating to any Third Party Claim.
(c) In the event any Indemnifying Party receives a notice of a claim for indemnity from an
Indemnified Party pursuant to this Section 8.5 that does not involve a Third Party Claim, the
Indemnifying Party shall notify the Indemnified Party within 20 Business Days following its receipt
of such notice whether the Indemnifying Party disputes its liability to the Indemnified Party under
this Article VIII. The Indemnified Party shall reasonably cooperate with and assist the
Indemnifying Party in determining the validity of any such claim for indemnity by the Indemnified
Party. If the Indemnified Party in good faith determines that the conduct of the defense or any
proposed settlement of any Third Party Claim would reasonably be expected to affect adversely the
Indemnified Party’s Tax liability or the ability of the Company or any Company Subsidiary to
conduct its business, or that the Indemnified Party may have available to it one or more defenses
or counterclaims that are inconsistent with one or more of those that may be available to the
Indemnifying Party in respect of such Third Party Claim, the Indemnified Party shall have the right
at all times to take over and control the defense, settlement, negotiation or Litigation relating
to any such Third Party Claim at the sole cost of the Indemnifying Party, provided that if
the Indemnified Party does so take over and control, the Indemnified Party shall not settle such
Third Party Claim without the written consent of the Indemnifying Party, such consent not to be
unreasonably withheld or delayed. In any event, Seller and Buyer shall cooperate in the defense of
any Third Party Claim subject to this Article VIII and the records of each shall be reasonably
available to the other with respect to such defense.
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8.6. Exclusive Remedy. Anything to the contrary in this Agreement notwithstanding,
Seller and Buyer hereby agree that following the Closing, the sole and exclusive remedy of a party
for any breach or inaccuracy of any representation, warranty, agreement or covenant contained in
this Agreement shall be the indemnification rights set forth in this Article VIII. In furtherance
of the foregoing and the indemnification provisions set forth in this Article VIII, (i)
Buyer hereby waives, from and after the Closing Date, any and all rights, claims and causes of
action any Buyer Indemnitee may have against Seller or any of its Affiliates, or their respective
directors, officers, employees, Affiliates, controlling Persons, agents or representatives,
successors or assigns and (ii) Seller hereby waives, from and after the Closing Date, any
and all rights, claims and causes of action any Seller Indemnitee may have against Buyer or any its
Affiliates, or their respective directors, officers, employees, Affiliates, agents or
representatives, successors or assigns, in either case to the extent such rights, claims and causes
of actions arise under or are based upon any Federal, state, provincial, local or foreign statute,
law, ordinance, rule or regulation or otherwise.
ARTICLE IX
TERMINATION
9.1. Termination. This Agreement may be terminated at any time prior to the Closing
Date:
(a) By mutual consent of Buyer and Seller;
(b) By either Buyer or Seller if the Closing shall not have occurred on or before November 30,
2009 or prior to such date if any condition (as set forth in Article VI or Article VII only) to
such party’s obligation to consummate the transactions contemplated hereby shall have become
incapable of being satisfied; provided, however, that the right to terminate this
Agreement shall not be available to any party whose breach of any term of this Agreement has been a
cause of, or resulted in, the failure of the Closing to have occurred on or before the aforesaid
date;
(c) By Buyer, if Seller shall have materially breached any of its respective pre-Closing
covenants herein or if any representation or warranty of Seller shall, in any case, be or become
untrue, such that, in each case, the conditions set forth in Section 6.1 are incapable of being
satisfied;
(d) By Seller, if Buyer shall have materially breached any of its pre-Closing covenants herein
or if any representation or warranty of Buyer shall, in any case, be or become untrue, such that in
each case, the conditions set forth in Section 6.2 are incapable of being satisfied; or
39
(e) By either Buyer or Seller, if any court of competent jurisdiction or other Governmental
Authority of competent jurisdiction shall have issued an order, decree or ruling or taken any other
action restraining, enjoining or otherwise prohibiting the transactions contemplated hereby, and
such order, decree, ruling or other action shall have become final and non-appealable.
9.2. Procedure and Effect of Termination. In the event of termination by Buyer or
Seller pursuant to Section 9.1, notice thereof shall promptly be given to Seller or Buyer, as the
case may be, and this Agreement shall terminate, without further action by any of the parties
hereto. If this Agreement is terminated as provided herein, no party hereto shall have any
liability or further obligation to any other party to this Agreement, except that any termination
shall be without prejudice to the rights of either party hereto arising out of a breach by the
other party of any term of agreement contained in this Agreement, and except that the provisions of
Article VIII, this Section 9.2 and Article X shall survive such termination.
ARTICLE X
MISCELLANEOUS
10.1. Notices. Any notice or other communication required or permitted to be given
under this Agreement shall be in writing (including facsimile or similar transmission) and mailed
(by certified mail, return receipt requested, postage prepaid), e-mailed or delivered (including by
way of international courier service):
(a) | If to Seller, addressed to: |
Rank Group Limited
Level Nine
000 Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxx, Xxx Xxxxxxx
Attention: Xxxxxxx X. Xxxx
Facsimile: x00 (0) 0 000 0000
E-mail: Xxxx.Xxxx@xxxxxxxxx.xx.xx
Level Nine
000 Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxx, Xxx Xxxxxxx
Attention: Xxxxxxx X. Xxxx
Facsimile: x00 (0) 0 000 0000
E-mail: Xxxx.Xxxx@xxxxxxxxx.xx.xx
with a copy (which shall not constitute notice) to: |
Rank Group Limited
Level Nine
000 Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxx, Xxx Xxxxxxx
Level Nine
000 Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxx, Xxx Xxxxxxx
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Attention: Xxxxx X. Xxxxxxx
Facsimile: x00 (0) 0 000 0000
E-Mail: Xxxxx.Xxxxxxx@xxxxxxxxx.xx.xx
Facsimile: x00 (0) 0 000 0000
E-Mail: Xxxxx.Xxxxxxx@xxxxxxxxx.xx.xx
(b) | If to Buyer, addressed to: |
SIG Group
Xxxxxxxxxxx 00 XX-0000 Xxxxxxxxx xx Xxxxxxxxx
Xxxxxxxxxxx
Attention: Xxxxx Xxxxxxxxx, Chief Financial Officer
Facsimile: 00 (0) 00 000 0000
E-mail: xxxxx.xxxxxxxxx@xxx.xxx
Xxxxxxxxxxx 00 XX-0000 Xxxxxxxxx xx Xxxxxxxxx
Xxxxxxxxxxx
Attention: Xxxxx Xxxxxxxxx, Chief Financial Officer
Facsimile: 00 (0) 00 000 0000
E-mail: xxxxx.xxxxxxxxx@xxx.xxx
with a copy (which shall not constitute notice) to: |
SIG Group
Xxxxxxxxxxx 00 XX-0000 Xxxxxxxxx xx Xxxxxxxxx
Xxxxxxxxxxx
Attention: Xxxxx Xxxxxxx, Manager of Group Legal and Insurance
Facsimile: x00 (0) 00 000 0000
E-mail: xxxxx.xxxxxxx@xxx.xxx
Xxxxxxxxxxx 00 XX-0000 Xxxxxxxxx xx Xxxxxxxxx
Xxxxxxxxxxx
Attention: Xxxxx Xxxxxxx, Manager of Group Legal and Insurance
Facsimile: x00 (0) 00 000 0000
E-mail: xxxxx.xxxxxxx@xxx.xxx
or to such other address(es) as Seller or Buyer shall give notice to the other by like means. All
such notices, demands, and communications, if mailed, shall be effective upon the earlier of
(i) actual receipt by the addressee, (ii) the date shown on the return receipt of
such mailing, or (iii) three days after deposit in the mail. All such notices, demands and
communications, if not mailed, shall be effective upon the earlier of (i) actual receipt by
the addressee, (ii) with respect to facsimile and similar electronic transmission, the
earlier of (A) the time that electronic confirmation of a successful transmission is
received, or (B) the date of transmission, if a confirming copy of the transmission is also
mailed as described above on the date of transmission, and (iii) with respect to delivery
by overnight courier service, the day after deposit with the courier service, if delivery on such
day by such courier is confirmed with the courier or the recipient orally or in writing.
10.2. Parties in Interest. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors, assigns, heirs and legal
representatives.
10.3. No Third Party Beneficiaries. Nothing in this Agreement shall confer any rights
upon any Person other than the parties hereto and their respective heirs, successors and permitted
assigns.
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10.4. Governing Law; Choice of Jurisdiction. This Agreement shall be governed in all
respects, including as to validity, interpretation and effect, by the internal Laws of the state of
New York, without giving effect to the conflict of Laws rules thereof. Each party to this
Agreement hereby (i) irrevocably and unconditionally consents and submits, for itself or
himself or herself and its, his or her property, to the non-exclusive jurisdiction of the state and
federal courts of the State of New York, (ii) waives any objection which it, he or she may
now or hereafter have to the laying of venue of any suit, action, or proceeding arising out of or
relating to this Agreement in the aforementioned courts, and (iii) agrees that a final
judgment in any such suit, action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided for by Law.
10.5. Assignment. This Agreement and all obligations hereunder shall not be
assignable, encumbered or otherwise transferable by Seller without the prior written consent of the
Buyer, and any purported assignment or other transfer without such consent shall be void and
unenforceable. This Agreement and all obligations hereunder shall be freely assignable, encumbered
or otherwise transferable by Buyer to the extent required by lenders of Buyer or any of its
Affiliates.
10.6. Amendment; Waivers. No amendment, modification or discharge of this Agreement,
and no waiver hereunder, shall be valid or binding unless set forth in writing and duly executed by
the party against whom enforcement of the amendment, modification, discharge or waiver is sought.
Any such waiver shall constitute a waiver only with respect to the specific matter described in
such writing and shall in no way impair the rights of the party granting such waiver in any other
respect or at any other time. Neither the waiver by any of the parties hereto of a breach of or a
default under any of the provisions of this Agreement, nor the failure by any of the parties, on
one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right
or privilege hereunder, shall be construed as a waiver of any other breach or default of a similar
nature, or as a waiver of any of such provisions, rights or privileges hereunder. The rights and
remedies herein provided are cumulative and none is exclusive of any other, or of any rights or
remedies that any party may otherwise have at Law or in equity.
10.7. Further Assurances. From time to time after the Closing Date and at the expense
of the requesting party and without further consideration, the parties hereto, upon the request of
any other party hereto or its Affiliates, shall execute and deliver such instruments and documents
as such other party reasonably may request in order to carry out the purposes and intent of this
Agreement.
10.8. Severability. If any provision, including any phrase, sentence, clause, section
or subsection, of this Agreement is invalid, inoperative or unenforceable for any reason, such
circumstances shall not have the effect of rendering such provision in question invalid,
inoperative or unenforceable in any other case or circumstance, or of rendering any
42
other provision herein contained invalid, inoperative or unenforceable to any extent
whatsoever.
10.9. Headings. The headings contained in this Agreement or on any exhibit or
schedule hereto are for purposes of convenience only and shall not affect the meaning or
interpretation of this Agreement.
10.10. Entire Agreement. The Seller Disclosure Letter and the other documents
delivered pursuant to or as contemplated by this Agreement are hereby incorporated in and form an
integral part of this Agreement.
10.11. Counterparts. This Agreement may be executed in several counterparts, all of
which taken together shall constitute one instrument. A signature of a party delivered by telecopy
or other electronic communication shall constitute an original signature of such party.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the day
and year first above written.
BEVERAGE PACKAGING HOLDINGS (LUXEMBOURG) III S.À X.X. |
||||
By: | /s/ Xxxxx Xxxxx | |||
Name: | Xxxxx Xxxxx | |||
Title: | ||||
CLOSURE SYSTEMS INTERNATIONAL (NZ) LIMITED |
||||
By: | /s/ Xxxxx Xxxxxxx | |||
Name: | Xxxxx Xxxxxxx | |||
Title: | ||||
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