Exhibit 99.2
Execution Copy
PURCHASE AGREEMENT
THIS AGREEMENT, dated as of March 13, 2000 (the "Agreement"), is made
by TAURUS INTERNATIONAL S.A. and TAURUS INVESTMENTS S.A., each a company
incorporated in the Grand Duchy of Luxembourg (each a "Seller" and together the
"Sellers"), CREDIT AGRICOLE LAZARD FINANCIAL PRODUCTS BANK, a company
incorporated in England and Wales, and TOKYO-MITSUBISHI INTERNATIONAL PLC, a
company incorporated in England and Wales (each a "Purchaser" and together the
"Purchasers").
WHEREAS, Taurus International S.A. and Taurus Investments S.A. are the
registered holders of 38,560,725 and 4,000,000, respectively, issued and
outstanding Common Shares, without par value, of Terra Industries Inc., a
corporation incorporated in the State of Maryland, United States of America (the
"Company"); and
WHEREAS, each of the Sellers desires to sell and each of the Purchasers
desires to purchase the number of Shares set forth below their respective
signatures to this Agreement, subject to the terms and conditions set forth in
this Agreement.
NOW, THEREFORE, in consideration of the premises, warranties, covenants
and agreements contained herein, the parties agree as follows:
1. Purchase and Sale. For valuable consideration, the sufficiency of
which is hereby acknowledged, each of the Sellers hereby sells, transfers and
assigns to the relevant Purchaser or Purchasers, and each of the Purchasers
hereby purchases from the relevant Seller or Sellers, the number of Common
Shares, without par value, of the Company ("Shares") set forth below that
Purchaser's and Seller's signatures to this Agreement, at a price of US$2.25 per
Share (the "Purchase Price"), upon the terms set forth in this Agreement.
2. Condition Precedent to Transaction. As a condition precedent to the
transactions contemplated in this Agreement, Credit Agricole Lazard Financial
Products Bank is simultaneously delivering to the Sellers or their agent a
certified copy of a Deed of Guarantee, duly executed by way of a deed poll by
Caisse Nationale de Credit Agricole (the "Deed Poll Guarantee"), a copy of which
is attached as Exhibit A.
3. Closing and Delivery of Shares. Certificates representing not less
than the number of Shares to be sold under this Agreement, accompanied by
instruments of transfer to the Purchasers, are being delivered by or on behalf
of the Sellers to the Purchasers at 0, xxx Xxxxxx Xxxxx, X-0000, Xxxxxxxxxx,
against payment of the aggregate Purchase Price thereof by wire transfer in
immediately available funds in United States dollars. The time and date of such
delivery and payment shall be the time and date of execution of this Agreement.
Such time and date are herein called the "Delivery Date".
Each of the Purchasers agrees that if the Share certificates delivered
hereunder represent a number of Shares greater than the number purchased under
this Agreement, the Purchasers shall cooperate with the Sellers to ensure that
certificates representing the number of Shares purchased under this Agreement
will be issued to the relevant Purchasers, and that any Shares represented by
the certificates delivered on the Delivery Date that are in excess of the number
of Shares sold under this Agreement remain the sole property of Taurus
International S.A.
4. Representations and Warranties of Sellers. Each of the Sellers
represents and warrants as to itself to each of the Purchasers that:
(a) The Seller is an entity duly organised and validly existing
under the laws of the Grand Duchy of Luxembourg and has all the requisite power
and authority, and has taken all actions necessary, to execute, deliver and
perform its obligations under this Agreement. This Agreement is a legal, valid
and binding obligation of Seller, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, reorganisation, moratorium and other laws of
general applicability relating to or affecting creditors' rights and to general
equity principles. The sale and delivery of the Shares by the Seller under this
Agreement, the compliance by the Seller with all of the provisions of, and the
performance by the Seller of its obligations under, this Agreement and the
consummation of the transactions contemplated in this Agreement will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, (i) the constitutive documents of
the Seller, (ii) any indenture, mortgage, deed of trust, loan agreement, lease
or other instrument to which the Seller is a party or by which the Seller is
bound or to which any of its properties is subject, in each case, the breach or
violation of which or default under which would be reasonably expected to have a
material adverse effect on the ability of the Seller to comply with its
obligations hereunder, or (iii) any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the Seller or
any of its subsidiaries or any of their properties, or any stock exchange
authority or self-regulatory organisation (each, a "Governmental Authority");
and, other than the filing of a Form 4 and a Schedule 13D under the United
States Securities Exchange Act of 1934, as amended (the "Exchange Act") (a draft
of each of which is attached hereto as Exhibits B and C, respectively) by the
Seller or an affiliate thereof, no consent, approval, authorisation, order,
registration, clearance or qualification or notification of, with or to any
Governmental Authority is required for the sale and delivery of the Shares by
the Seller under this Agreement;
(b) To the best of the Seller's knowledge following a review of
the publicly available filings the Company has made with the United States
Securities and Exchange Commission (the "Commission"), the Company has
75,308,040 Shares issued and outstanding;
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(c) Immediately prior to delivery of the Shares to the Purchasers,
the Seller is the true and lawful beneficial and record owner of the Shares and
has and will have good and valid title to the Shares, free and clear of all
liens, encumbrances, equities or claims, and the Purchasers, when the Shares are
delivered as provided in this Agreement, will be entitled to all the rights of a
shareholder of the Company conferred by the Articles of Incorporation and
by-laws of the Company;
(d) There are no legal or governmental proceedings pending to
which the Seller is a party or of which any property of the Seller is the
subject which, if determined adversely to the Seller, would individually or in
the aggregate have a material adverse effect on the Seller's ability to perform
its obligations under this Agreement, and, to the best of the Seller's
knowledge, no such proceedings are threatened or contemplated by Governmental
Authorities or threatened by others; and
(e) Neither the Seller nor any person (including without
limitation Anglo American plc) acting on its behalf has offered or sold any
Shares by means of any general solicitation or general advertising within the
meaning of Rule 502(c) under the United States Securities Act of 1933, as
amended (the "Securities Act").
5. Representations and Warranties of Purchasers. Each of the Purchasers
represents and warrants as to itself to each of the Sellers that:
(a) The Purchaser is an entity duly organised and validly existing
under the laws of England and Wales and has all the requisite power and
authority, and has taken all actions necessary, to execute, deliver and perform
its obligations under this Agreement. This Agreement is a legal, valid and
binding obligation of the Purchaser, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, reorganisation, moratorium and other laws of
general applicability relating to or affecting creditors' rights and to general
equity principles. The purchase of the Shares by the Purchaser under this
Agreement, the compliance by the Purchaser with all of the provisions of, and
the performance by the Purchaser of its obligations under, this Agreement and
the consummation of the transactions contemplated in this Agreement will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, (i) the constitutive documents of
the Purchaser, (ii) any indenture, mortgage, deed of trust, loan agreement,
lease or other instrument to which the Purchaser is a party or by which the
Purchaser is bound or to which any of its properties is subject, in each case,
the breach or violation of which or default under which would be reasonably
expected to have a material adverse effect on the ability of the Purchaser to
comply with its obligations hereunder, or (iii) any statute or any order, rule
or regulation of any Governmental Authority and no consent, approval,
authorisation, order, registration, clearance or qualification or notification
of, with or to any Governmental
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Authority is required for the purchase of the Shares by the Purchaser under
this Agreement;
(b) There are no legal or governmental proceedings pending to
which the Purchaser is a party or of which any property of the Purchaser is the
subject which, if determined adversely to the Purchaser, would individually or
in the aggregate have a material adverse effect on the Purchaser's ability to
perform its obligations under this Agreement, and, to the best of the
Purchaser's knowledge, no such proceedings are threatened or contemplated by
Governmental Authorities or threatened by others;
(c) The Purchaser is an "accredited investor" within the meaning
of Rule 501(a) of Regulation D under the Securities Act;
(d) The Purchaser is acting as a principal and not as an agent in
connection with this Agreement and the transactions contemplated herein. In
particular, the Purchaser is acquiring the Shares for the Purchaser's own
account as principal for investment and not with a view to or for offer or sale
in connection with any distribution thereof within the meaning of the Securities
Act;
(e) The Purchaser is solely responsible for its investment and
other decisions with respect to this Agreement and is not relying on either of
the Sellers or any of their affiliates in connection with any such decisions,
and neither a Seller nor any such affiliate is acting as an adviser to or
fiduciary of the Purchaser in connection with this Agreement;
(f) The Purchaser has sufficient knowledge, experience and access
to professional advice to make its own legal, tax, accounting, financial and
other evaluation of the merits and risks of entering into this Agreement, has
reviewed carefully this Agreement with its financial, legal and tax advisers and
has determined that entering into this Agreement is consistent with the
Purchaser's objectives. Without limitation of the foregoing, or of any other
provisions of this Agreement, the Purchaser acknowledges and understands that
this Agreement may involve legal, tax and regulatory considerations that are
highly dependent on facts and circumstances related to itself, that the
Purchaser will have sufficient information regarding such facts and
circumstances to determine the legal, tax and regulatory consequences of this
Agreement and the transactions contemplated herein for the Purchaser and that
it, together with its legal, tax and financial advisers, will be solely
responsible for determining and evaluating such consequences and making its own
independent decisions with respect to this Agreement and the transactions
contemplated herein based on such determinations and evaluations and any other
factors or considerations deemed relevant by the Purchaser or its advisers;
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(g) The Purchaser has received such information concerning the
Company and the Shares, and has been given the opportunity to ask such questions
and to receive answers as the Purchaser deems sufficient, based on information
provided by or on behalf of the relevant Seller or Sellers or the Company to the
Purchaser, to make an informed investment decision with respect to the Shares;
(h) The Purchaser acknowledges that the certificate for the Shares
will contain a legend substantially in the form of the legend in Exhibit D (and
such legend may be removed when the Shares have met the requirements for
Transfer set forth in Section 7 or as the Securities Act otherwise permits);
(i) Neither the Purchaser nor any person (including without
limitation Caisse Nationale de Credit Agricole, Lazard Freres & Co., LLC and
Tokyo-Mitsubishi International plc) acting on its behalf has offered or sold any
Shares by means of any general solicitation or general advertising within the
meaning of Rule 502(c) under the Securities Act;
(j) The Purchaser is not, and after giving effect to the
transactions contemplated in this Agreement will not be, a person acting
together with a Seller or any of its affiliates within the meaning of Rule 13d-5
of the Securities Act;
(k) The Purchaser is not a United States person or a foreign
person controlled by a United States person within the meaning of Regulation X
of the Board of Governors of the United States Federal Reserve System
("Regulation X"); and
(l) The Purchaser understands that the Sellers and any affiliates
thereof are relying on the truth and accuracy of these representations, and
agrees that if it becomes aware that any of the representations in this Section
5 are no longer accurate, it shall promptly notify the Sellers.
6. Additional Covenants.
(a) Credit Agricole Lazard Financial Products Bank covenants and agrees
with Taurus International S.A. that prior to the expiration of 10 business days
following the Delivery Date, Credit Agricole Lazard Financial Products Bank
shall deliver to Taurus International S.A. or its agent a Deed of Guarantee in
the form of the document in Exhibit E, duly executed by Caisse Nationale de
Credit Agricole and with Taurus International S.A. named therein as the
Guaranteed Party. Each of the Sellers covenants and agrees with Credit Agricole
Lazard Financial Products Bank that upon receipt of such guarantee by Taurus
International S.A., neither it nor Taurus Investments S.A. shall thereafter
assert any rights, benefits or privileges under the Deed Poll Guarantee and
shall cease to be a Guaranteed Counterparty under the Deed Poll Guarantee.
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(b) Each of the Purchasers covenants and agrees with each of the
Sellers that until the expiration of four years following the Delivery Date,
prior to such Purchaser becoming a United States person or a foreign person
controlled by a United States person within the meaning of Regulation X, the
Purchaser shall notify the Sellers of such facts and shall use its reasonable
best efforts to cooperate with the Sellers to ensure that all transactions
contemplated by this Agreement and the Call Option Agreement dated as of the
date hereof between Credit Agricole Lazard Financial Products Bank and Taurus
International S.A. ("Call Option Agreement") shall comply with Regulation X and
other applicable regulations or requirements of the Board of Governors of the
United States Federal Reserve System.
(c) Taurus International S.A. covenants and agrees to use commercially
reasonable efforts to cooperate in good faith with each of the Purchasers to
facilitate any sale or proposed sale of Shares by either such Purchaser,
provided that such covenant and agreement shall not apply in circumstances where
(i) Taurus International S.A. is not participating in such sale of Shares or
(ii) no offering document is used by Credit Agricole Lazard Financial Products
Bank or Tokyo-Mitsubishi International plc in connection with such sale of
Shares.
(d) (i) Taurus International S.A. covenants and agrees with
Tokyo-Mitsubishi International plc that it shall not exercise the call option
("Call Option") granted pursuant to the Call Option Agreement at any time that
it is in possession of material non-public information regarding the Company.
Taurus International S.A. agrees to indemnify and hold harmless Tokyo-Mitsubishi
International plc against any losses, claims, damages or liabilities to which
Tokyo-Mitsubishi International plc may become subject insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
result from any breach by Taurus International S.A. of the covenant set forth in
the immediately preceding sentence. In case any such action described in this
Section 6(d)(i) shall be brought against Tokyo-Mitsubishi International plc, it
shall notify Taurus International S.A. of the commencement thereof; provided,
however, that failure to notify shall not relieve Taurus International S.A. from
any liability it may have to Tokyo-Mitsubishi International plc under this
Section. Taurus International S.A. shall be entitled to participate therein and,
to the extent that it wishes, assume the defence thereof, with counsel of its
choice. Tokyo-Mitsubishi International plc shall not, without the written
consent of Taurus International S.A., effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification may be sought hereunder
(whether or not Tokyo-Mitsubishi International plc is an actual or potential
party to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of Tokyo-Mitsubishi International plc from
all liability arising out of such action or claim and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act, by
or on behalf of Tokyo-Mitsubishi International plc.
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(ii) Taurus International S.A. shall be deemed to represent to
Tokyo-Mitsubishi International plc that it is in compliance with the covenant
set forth in Section 6(d)(i) on each occasion on which it exercises the Call
Option.
(e) (i) Where a prospective purchaser has made an offer (whether or not
in writing) on commercially reasonable terms (it being understood that price is
not to be taken into account in assessing such commercial reasonableness) to a
Purchaser to purchase Shares in a transaction in which the transfer restrictions
set forth in Section 7(b) are capable of being met, that Purchaser shall advise
the Sellers in writing of the terms of such offer as soon as practicable and, if
the Purchaser has accepted such offer, the Purchaser shall as soon as
practicable thereafter notify the Sellers of such acceptance.
(ii) Where a prospective purchaser has made an offer (whether or
not in writing) on commercially reasonable terms (it being understood that price
is not to be taken into account in assessing such commercial reasonableness) to
a Seller to purchase Shares from a Purchaser in a transaction in which the
transfer restrictions set forth in Section 7(b) are capable of being met, that
Seller shall advise Credit Agricole Lazard Financial Products Bank in writing of
the terms of such offer as soon as practicable.
(f) Each of the Purchasers covenants and agrees with the Sellers that
it shall notify the Sellers as soon as possible following the occurrence of a
Final Disposal. For purposes of this agreement, "Final Disposal" means a
disposal of shares in a transaction where the restrictions set forth in Section
7(a) are capable of being met and which is not in response to an exercise of
Call Option by Taurus International S.A. and following which the number of
shares then held by the Purchasers (taken together) is zero, which in turn
permits Taurus International S.A. to exercise Call Options at any time and from
time to time in an amount not exceeding the number of Call Options not yet
exercised immediately prior to such disposal.
7. Restrictions on Transfers. Each of the Purchasers acknowledges that
the Shares have not been registered under the Securities Act and that the Shares
are being sold to the Purchasers pursuant to an exemption from registration
under the Securities Act. Each of the Purchasers agrees that it shall not (1)
sell, transfer, assign, pledge, encumber or otherwise dispose of, whether for
value, and whether directly or indirectly, any of the Shares or (2) enter into
any agreements, option contracts, futures contracts, options on futures
contracts, spot or forward contracts, caps, floors, collars or other agreements
to purchase or dispose of, whether directly or indirectly, the economic or other
risks of ownership of the Shares, or enter into any other hedging arrangements
in respect of its holding of the Shares (each of (1) and (2), a "Transfer"),
other than (x) the option agreement dated as of the date hereof between Credit
Agricole Lazard Financial Products Bank and Taurus International S.A. and (y)
the swap agreement dated as of the date hereof between Credit Agricole Lazard
Financial Products Bank and Tokyo-
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Mitsubishi International plc, provided that the swap agreement in clause (y)
contains adequate provisions to ensure that the transactions contemplated by
this Agreement are exempt from registration under the Securities Act, unless:
(a) A registration statement providing for the registration under
the Securities Act of the Shares held by that Purchaser, which would allow for,
among other types of sales, hedging arrangements of the types contemplated in
clause (2) of the immediately preceding paragraph, is declared effective by the
Commission under the Securities Act, no stop order in respect thereof has been
issued by the Commission and the Transfer will be valid and effective under
applicable state securities laws of the United States of America; or
(b) (i) The Transfer is being made pursuant to an exemption from
the registration requirements of the Securities Act or is otherwise permitted by
the Securities Act and (ii) the Purchaser has, prior to the Transfer, delivered
to the Sellers (x) a written legal opinion of counsel, addressed to the Sellers
and reasonably satisfactory to the Sellers, stating that the Transfer is being
made in accordance with an exemption from registration under the Securities Act,
(y) a no-action letter from the Commission, in effect advising that the
Commission will not recommend any enforcement action in relation to the
Transfer, or (z) a written acknowledgment or concurrence by the Company that the
Transfer is being made in accordance with an exemption from registration under
the Securities Act.
8. Information. The Purchasers shall give prior notice to the Sellers
of, and shall give the Sellers the opportunity to review in advance, any filing
to be made by the Purchasers relating to this Agreement or the transactions
contemplated herein and the Sellers shall have the right to consult with the
Purchasers regarding any information relating to the Sellers or their affiliates
therein.
Each of the Purchasers shall supply such information with respect
to itself, its directors, officers and shareholders and such other matters as
may be reasonably necessary as a Seller may reasonably request for the purpose
of preparation of any registration statement, notice, form or other documents to
be filed with any Governmental Authority.
Each of the Sellers shall supply such information with respect to
itself, its directors, officers and shareholders and such other matters as may
be reasonably necessary, as a Purchaser may reasonably request for the purpose
of preparation of any registration statement, notice, form or other documents to
be filed with any Governmental Authority.
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9. Confidentiality. None of the parties will, without the prior written
consent of the other, directly or indirectly, make any disclosure with respect
to this Agreement, except as may be required by applicable law or any order,
rule or regulation of any Governmental Authority. Each of the Purchasers
acknowledges and agrees that each of the Sellers or an affiliate thereof will be
filing this Agreement as an exhibit to a form on Schedule 13D it will be filing
under the Exchange Act.
10. Costs and Expenses. Each party to this Agreement shall be
responsible for such party's own expenses in connection with this Agreement,
except that the Sellers will bear the legal costs and expenses of the Purchasers
in connection with the preparation and execution of this Agreement.
11. Notices. All statements, requests, notices and agreements hereunder
shall be in writing, and shall be delivered or sent by mail or facsimile
transmission to the address or facsimile number set forth below:
(a) to Taurus International S.A. at:
0 xxx Xxxxxx Xxxxx, X-0000, Xxxxxxxxxx
Facsimile: x000 000 000 00
Attention: Company Secretary
with a copy to Anglo American plc at:
00 Xxxxxxx Xxxxx Xxxxxxx, Xxxxxx XX0X 0XX, X.X.
Facsimile: x00 000 000 0000
Attention: Company Secretary
(b) to Taurus Investments S.A. at:
0 xxx Xxxxxx Xxxxx, X-0000, Xxxxxxxxxx
Facsimile: x000 000 000 00
Attention: Company Secretary
with a copy to Anglo American plc at:
00 Xxxxxxx Xxxxx Xxxxxxx, Xxxxxx XX0X 0XX, X.X.
Facsimile: x00 000 000 0000
Attention: Company Secretary
(c) to Credit Agricole Lazard Financial Products Bank at:
00 Xxxxxxxxxx Xxxxxxxx, Xxxxxx XX0X 0XX, X.X.
Facsimile: x00 000 000 0000
Attention: Settlements
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(d) to Tokyo-Mitsubishi International plc at:
0 Xxxxxxxxx, Xxxxxx XX0X 0XX, X.X.
Facsimile: x00 000 000 0000 or + 00 000 000 0000
Attention: Legal Department/Capital Markets
or to such other address, telex number or facsimile number as it is notified in
writing by that party to the other parties.
12. Time of the Essence. Time shall be of the essence of this
Agreement.
13. Lazard Disclaimer. The Sellers are hereby notified and acknowledge
that none of Lazard Freres et Cie, Lazard Freres & Co., LLC, Lazard Brothers &
Co. Limited or any of their partners, officers, employees or any of their
subsidiaries or associates have any responsibility of any kind for any of the
debts, liabilities or other obligations of Credit Agricole Lazard Financial
Product Bank, or to ensure its solvency or to make any contribution to its
assets as a result of its becoming insolvent, notwithstanding their interests in
its shares, representations on its board and its rights to use the Lazard name.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of England.
15. Consent to Jurisdiction.
(a) Each party to this Agreement agrees for the benefit of the other
parties hereto that:
(i) if any party has any claim against the other arising
out of or in connection with this Agreement such
claim shall be referred to the High Court of Justice
in England, to the exclusive jurisdiction of which
each of the parties irrevocably submits; and
(ii) each party to this Agreement irrevocably waives any
objection it may now or hereafter have to the laying
of venue of any action or proceeding in any court and
any claim it may now or hereafter have that any
action or proceeding has been brought in an
inconvenient or inappropriate forum.
(b) The Sellers irrevocably designate, appoint and empower Anglo
American Services (UK) Limited at present of 00 Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxx XX0X 0XX to receive for it and on its behalf
service of process issued out of the High Court of Justice in
England in relation to any claim arising out of or in
connection with this Agreement.
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16. Counterparts. This Agreement may be executed by any of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the date and year first above written.
TAURUS INTERNATIONAL S.A.
By: /s/ X.X.X. Xxxxxxx
----------------------------
Name: X.X.X. Xxxxxxx
Title: Director
The number of Shares sold by Taurus International S.A. pursuant to this
Agreement is 1,000,000 Shares to Tokyo-Mitsubishi International plc.
By its execution of this Agreement and without prejudice to the execution of
this Agreement by the other party hereto, Taurus International S.A. hereby
expressly and specifically confirms its agreement with the provisions of
Sections 14 and 15 above for the purposes of Article 1 of the Protocol annexed
to the Convention on Jurisdiction and the Enforcements of Judgments in Civil or
Commercial Matters signed at Brussels on 27th September 1968.
TAURUS INVESTMENTS S.A.
By: /s/ X.X.X. Xxxxxxx
----------------------------
Name: X.X.X. Xxxxxxx
Title: Director
The number of Shares sold by Taurus Investments S.A. pursuant to this Agreement
is: 3,750,000 Shares to Credit Agricole Lazard Financial Products Bank and
250,000 Shares to Tokyo-Mitsubishi International plc.
By its execution of this Agreement and without prejudice to the execution of
this Agreement by the other party hereto, Taurus Investments S.A. hereby
expressly and specifically confirms its agreement with the provisions of
Sections 14 and 15 above for the purposes of Article 1 of the Protocol annexed
to the Convention on Jurisdiction and the Enforcements of Judgments in Civil or
Commercial Matters signed at Brussels on 27th September 1968.
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CREDIT AGRICOLE LAZARD FINANCIAL PRODUCTS BANK
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------
Name: X. X. Xxxxxx
Office: Designated Signatory
The number of Shares purchased by Credit Agricole Lazard Financial Products Bank
pursuant to this Agreement is 3,750,000 Shares from Taurus Investments S.A.
TOKYO-MITSUBISHI INTERNATIONAL PLC
By: /s/ X. Xxxxxxx
---------------------------
Name: Xxxxx Xxxxxxx
By power of attorney
Office:
The number of Shares purchased by Tokyo-Mitsubishi International plc pursuant to
this Agreement is 1,000,000 Shares from Taurus International S.A. and 250,000
Shares from Taurus Investments S.A.
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EXHIBIT A - CAL FP GUARANTEE
I certify this is a true
copy of the original.
[CREDIT AGRICOLE LOGO] /s/ X. Daudin
------------------------
Xavier Daudin, General
GENERAL GUARANTEE Secretary CAL FP Bank
THIS GUARANTEE by way of DEED POLL is executed the twenty ninth day of March
1995 by CAISSE NATIONALE DE CREDIT AGRICOLE of 00-00 Xxxxxxxxx Xxxxxxx, 00000
Xxxxx, Xxxxxx (the "GUARANTOR").
1. INTERPRETATION
In this Guarantee, unless the context otherwise requires:
"GUARANTEED OBLIGATION" means
(a) any spot or forward sale or purchase, swap or option on any
commodities, equities, interest rate, currencies or indices thereof,
or any other similar transaction (including an option with respect
to any of these transactions), and any combination of these
transactions, and/or any obligation under or pursuant to or in
connection with any master agreement under which any of the
foregoing or any other derivative transaction is entered into or is
capable of being entered into; and
(b) any moneys borrowed or raised including moneys borrowed or raised by
way of loan from any bank or financial institution or from any
person by means of the issue of bonds, debentures, notes, commercial
paper, certificates of deposit or any other debt securities;
"GUARANTEED COUNTERPARTY" means each person to whom the Principal is
liable in respect of a Guaranteed Obligation;
"PRINCIPAL" means Credit Agricole Lazard Financial Products Bank.
2. GUARANTEE
In consideration of each Guaranteed Counterparty agreeing to transact
business with the Principal, the Guarantor hereby irrevocably guarantees
to each such Guaranteed Counterparty the prompt payment when due by the
Principal of its obligations and liabilities under and in respect of all
Guaranteed Obligations and promises to pay upon written demand of such
Guaranteed Counterparty (such demand to be accompanied by the information
required by Clause 7.2 and a copy of the demand made by such Guaranteed
Counterparty to the Principal in respect of such sums), all sums from time
to time properly due and payable (but unpaid) by the Principal under and
in respect of all Guaranteed Obligations.
3. NATURE OF GUARANTEE; PRESERVATION OF RIGHTS
3.1 Without prejudice to any defence available to the Guarantor in its
capacity as such (except for any defence expressly waived pursuant to
Clause 3.3), the Guarantor reserves the right to assert any defence to
payment of any sum due under or in respect of any Guaranteed Obligation
which is or would have been available to the Principal.
3.2 The obligations of the Guarantor herein contained shall be in addition to
and not in substitution for any other security which a Guaranteed
Counterparty may at any
time hold in respect of any of the Principal's obligations under any
Guaranteed Obligation and may be enforced without such Guaranteed
Counterparty first having recourse to any such security and without such
Guaranteed Counterparty first taking steps or proceedings against the
Principal in respect of such security.
3.3 Without prejudice to the provisions of Clause 3.1, neither the obligations
of the Guarantor herein contained nor the rights, powers and remedies
conferred in respect of the Guarantor upon a Guaranteed Counterparty by
law shall be discharged, impaired or otherwise affected by:
(i) the insolvency, winding-up, dissolution, receivership,
administration or reorganisation of the Principal or any analogous
event occurring in respect of the Principal or any change in its
status, function, control or ownership of the Principal entering
into any arrangement, composition or assignment for the benefit of
creditors;
(ii) time or other indulgence being granted or agreed to be granted by
the Guaranteed Counterparty to, or any composition or other
arrangement made with or accepted from (a) the Principal in respect
of its obligations under a Guaranteed Obligation or (b) any person
in respect of any security granted in respect of a Guaranteed
Obligation;
(iii) any amendment being made to the terms of, or any variation, waiver
or release of, a Guaranteed Obligation or any security granted in
respect of a Guaranteed Obligation;
(iv) any failure to realise or fully to realise the value of, or any
release, discharge, exchange or substitution of, any security
granted in respect of a Guaranteed Obligation; or
(v) any failure (whether intentional or not) to take, or fully to take,
or perfect or make available to the Guarantor any security now or
hereafter agreed to be taken by such Guaranteed Counterparty in
relation to a Guaranteed Obligation.
3.4 Any discharge given by the Guaranteed Counterparty to the Guarantor in
respect of the Guarantor's obligations hereunder or any other agreement
reached between such Guaranteed Counterparty and the Guarantor in relation
thereto shall be, and be deemed
always to have been, void if any act on the faith of which the Guaranteed
Counterparty gave the Guarantor that discharge or entered into that
agreement is subsequently avoided by or in pursuance of any provision of
law.
3.5 A Guaranteed Counterparty shall not be obliged before exercising any of
its rights, powers or remedies conferred upon it in respect of the
Guarantor by law:
(i) to take any action in any court or obtain judgment in any court
against the Principal;
(ii) to make or file any claim or proof in a winding-up or dissolution of
the Principal; or
(iii) to enforce or seek to enforce any security taken in respect of
a Guaranteed Obligation.
3.6 The Guarantor agrees that, so long as any amounts are or may be owed by
the Principal to the Guaranteed Counterparty pursuant to any Guaranteed
Obligation or the Principal is under any actual or contingent obligations
to any Guaranteed Counterparty under any Guaranteed Obligation, the
Guarantor shall not exercise any rights which the Guarantor may at any
time have by reason of performance by it of its obligations to such
Guaranteed Counterparty hereunder:
(i) to be indemnified by the Principal;
(ii) to claim any contribution from any other guarantor of the
Principal's obligations to such Guaranteed Counterparty; and/or
(iii) to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Guaranteed
Counterparty in relation to any of the Principal's obligations to
such Guaranteed Counterparty or of any security taken pursuant to
or in connection therewith.
4. REPRESENTATIONS AND WARRANTIES
The Guarantor represents that:
(i) it is duly incorporated in the Republic of France and has power to
enter into and perform the Guarantee and has taken all necessary
corporate action to authorise the execution, delivery and
performance of the Guarantee;
(ii) the execution, delivery and performance of the Guarantee will not
contravene any law or regulation to which the Guarantor is subject
or any provision of the Guarantor's constitutive documents and all
governmental or other consents requisite for such execution,
delivery and performance are in full force and effect;
(iii) the execution, delivery and performance of the Guarantee will not
result in the existence of or oblige the Guarantor to create, any
mortgage, charge, pledge, lien
or other encumbrance over any present or future revenues or assets
of the Guarantor; and
(iv) the execution, delivery and performance of the Guarantee will not
cause the Guarantor to be in breach of or default under any
agreement binding on it or any of its assets.
-2-
5. PAYMENTS
5.1 Any provision relating to the payments to be made under or in respect of a
Guaranteed Obligation (including, without limitation, those regulating
what is to happen if the Principal is required by law to make a deduction
or withholding from any such payment) shall apply mutatis mutandis to
payments to be made hereunder in respect of such Guaranteed Obligation.
5.2 The Guarantor reserves the right (a) to exercise any right of set-off
available to the Principal in relation to any Guaranteed Counterparty in
respect of the sums guaranteed hereby and (b) to take the benefit of any
netting arrangements between the Principal and such Guaranteed
Counterparty in respect of sums guaranteed hereby.
6. CONTINUING SECURITY
This Guarantee shall be a continuing security to each Guaranteed
Counterparty in respect of each and every one of the Guaranteed
Obligations and shall not be (or be construed so as to be) discharged by
any intermediate discharge or payment of or on account of the Guaranteed
Obligations or any of them or any settlement of accounts between such
Guaranteed Counterparty and the Principal or anyone else.
7. DEMANDS
7.1 Any written demand made, or notice given, by a Guaranteed Counterparty
pursuant to Clause 2 may be made by facsimile (any facsimile transmission
to be confirmed by post) to the following address/facsimile number:
Direction de la Gestion Financiere, Caisse Nationale de Credit Agricole
S.A., 00/00 xxx Xxxxxxx, 00000 Xxxxx Cedex 15, Fax - 00.0.00.00.00.00, Tel
- 00.0.00.00.00.00.
7.2 Any written demand made by a Guaranteed Counterparty pursuant to Clause 2
shall be accompanied by
(i) a calculation or other appropriate evidence supporting the amount of
the sums claimed by such Guaranteed Counterparty in such demand and
the fact that the sums are due and payable; and
(ii) a copy of any written demand made by such Guaranteed Counterparty to
the Principal.
8. TERMINATION
This Guarantee may be terminated by the Guarantor at any time, notice
being given by publication in The Financial Times, such termination taking
effect thirty days thereafter (the "TERMINATION DATE"). Provided that this
Guarantee shall remain in full force and effect with respect to all
Guaranteed Obligations which are outstanding or contracted prior to the
Termination Date until all such obligations have been paid in full.
-3-
9. GOVERNING LAW
This Guarantee shall be governed by and construed in accordance with
English law and the Guarantor hereby irrevocably submits to the
non-exclusive jurisdiction of the English Courts.
-4-
IN WITNESS WHEREOF this Guarantee has been duly executed the day and year first
above written.
By: /s/ J. Bouysset
-------------------------------
Name: XXXX BOUYSSET
Title: CHIEF FINANCIAL OFFICER
on behalf of CAISSE NATIONALE DE CREDIT AGRICOLE
-0-
XXXXXXX X - XXXX 0
XXXXXX XXXXXX SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 4 STATEMENT OF CHANGES IN BENEFICIAL OWNERSHIP
Filed pursuant to Section 16(a) of the Securities Exchange Act of 1934,
Section 17(a) of the Public Utility Holding Company Act of 1935 or
Section 30(f) of the Investment Company Act of 1940
|_| Check this box if no longer
subject to Section 16. Form 4
or Form 5 obligations may
continue. See Instruction 1(b).
--------------------------------------------------------------------------------
(Print or Type Responses)
1. Name and Address of Reporting Person*
Anglo American plc
--------------------------------------------------------------------------------
(Last) (First) (Middle)
00 Xxxxxxx Xxxxx Xxxxxxx
--------------------------------------------------------------------------------
(Street)
Xxxxxx XXXX 0XX, Xxxxxx Xxxxxxx
--------------------------------------------------------------------------------
(City) (State) (Zip)
--------------------------------------------------------------------------------
2. Issuer Name and Ticker or Trading Symbol
Terra Industries Inc. (TRA)
--------------------------------------------------------------------------------
3. I.R.S. Identification Number of Reporting Person, if an entity (Voluntary)
--------------------------------------------------------------------------------
4. Statement for Month/Year
March/2000
--------------------------------------------------------------------------------
5. If Amendment, Date of Original (Month/Year)
--------------------------------------------------------------------------------
6. Relationship of Reporting Person(s) to Issuer (Check all applicable)
_____ Director __X__ 10% Owner
_____ Officer (give _____ Other (specify)
title below) below)
--------------------------------------------------------------------------------
7. Individual or Joint/Group Filing (Check Applicable Line)
____ Form filed by One Reporting Person
____ Form filed by More than One Reporting Person
--------------------------------------------------------------------------------
TABLE I-- NON-DERIVATIVE SECURITIES ACQUIRED, DISPOSED OF, OR BENEFICIALLY OWNED
1.Title of Security 2.Trans- 3.Trans- 4.Securities Acquired (A) 5.Amount of 6.Ownership 7.Nature of
(Instr. 3) action action or Disposed of (D) Securities Bene- Form: Direct Indirect
Date Code (Instr. 3, 4 and 5) ficially Owned (D) or Beneficial
(Month/ (Instr. 8) ------------------------ at End of Indirect (I) Ownership
Day/ ------------ Amount (A) or Price Month (Instr. (Instr. 4) (Instr. 4)
Year) Code V (D) 3 and 4)
------------------- --------- ------------ ------------------------ ------------------ -------------- ---------------
Common Shares of Terra
Industries Inc. (TRA) 3/13/2000 S 1,000,000 D $2.25 37,560,725 I (1)
------------------------------------------------------------------------------------------------------------------------------------
Common Shares of Terra
Industries Inc. (TRA) 3/13/2000 S 4,000,000 D $2.25 0 I (2)
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Reminder: Report on a separate line for each class of securities beneficially owned directly or indirectly. (Over)
*If the form is filed by more than one reporting person, see Instruction 4(b)(v). SEC 1474 (7-97)
Potential persons who are to respond to the collection of information contained in this form are not
required to respond unless the form displays a currently valid OMB Number.
FORM 4 (CONTINUED)
TABLE II -- DERIVATIVE SECURITIES ACQUIRED, DISPOSED OF, OR BENEFICIALLY OWNED
(E.G., PUTS, CALLS, WARRANTS, OPTIONS, CONVERTIBLE SECURITIES)
1. Title of Derivative Security (Instr. 3)
Call Options (right to purchase)
================================================================================
2. Conversion or Exercise Price of Derivative Security
$0.00
================================================================================
3. Transaction Date (Month/Day/Year)
3/13/2000
================================================================================
4. Transaction Code (Instr. 8)
Code V
------------------ ------------
P
================================================================================
5. Number of Derivative Securities Acquired (A) or Disposed of (D)
(Instr. 3, 4, and 5)
(A) (D)
------------------ ------------
5,000,000 A
================================================================================
6. Date Exercisable and Expiration Date (Month/Day/Year)
Date Exercisable Expiration Date
------------------------ ------------------------
Mar 13, 2000 Mar 13, 2004
================================================================================
7. Title and Amount of Underlying Securities (Instr. 3 and 4)
Title Amount or Number of Shares
------------------ --------------------------
Common Shares 5,000,000
================================================================================
8. Price of Derivative Security (Instr. 5)
$2
================================================================================
9. Number of Derivative Securities Beneficially Owned at End of Month
(Instr. 4)
5,000,000
================================================================================
10. Ownership Form of Derivative Security: Direct (D) or Indirect (I)
(Instr. 4)
(I)
================================================================================
11. Nature of Indirect Beneficial Ownership (Instr. 4)
(3)
================================================================================
Explanation of Responses:
(1) Shares are held by Taurus International S.A., an indirect subsidiary of the
reporting person.
(2) Shares are held by Taurus Investments S.A., an indirect subsidiary of the
reporting person.
(3) Options are held by Taurus International S.A., an indirect subsidiary of
the reporting person.
Anglo American plc
By:
March o, 2000
-------------------------------- -------------
** Signature of Reporting Person Date
Name:
Title:
**Intentional misstatements or omissions of facts constitute Federal Criminal
Violations.
See 18 U.S.C. 1001 and 15 U.S.C. 78ff(a).
Note: File three copies of this Form, one of which must be manually signed.
If space provided is insufficient, see Instruction 6 for procedure.
Potential persons who are to respond to the collection of information contained
in this form are not required to respond unless the form displays a currently
valid OMB Number.
Page 2
SEC 1474 (7-97)
EXHIBIT C - DRAFT OF SCHEDULE 13D
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 17)
TERRA INDUSTRIES INC.
--------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, no par value
--------------------------------------------------------------------------------
(Title of Class of Securities)
457729101
-------------------------------------------------------
(CUSIP Number)
X. Xxxxxx
Secretary
Anglo American plc
00 Xxxxxxx Xxxxx Xxxxxxx
Xxxxxx XXXX 0XX, Xxxxxx Xxxxxxx
Tel: 000-00-000-000-0000
--------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
March 13, 2000
-------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of xx.xx. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box |_|.
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See ss. 240.13d-7 for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
SEC 1746(12-91)
SCHEDULE 13D
------------------- ---------------------------
CUSIP NO. 000000000 PAGE OF PAGES
------------------- ---------------------------
-------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS.
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY).
ANGLO AMERICAN plc
-------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
(A) |_|
(B) |_|
-------------------------------------------------------------------------------
3 SEC USE ONLY
-------------------------------------------------------------------------------
4 SOURCE OF FUNDS (SEE INSTRUCTIONS)
Not applicable.
-------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) |_|
-------------------------------------------------------------------------------
0 XXXXXXXXXXX XX XXXXX XX XXXXXXXXXXXX
Xxxxxx Xxxxxxx
-------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY By subsidiaries: 37,560,725 Common Shares.
OWNED BY -----------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON -----------------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
By subsidiaries: 37,560,725 Common Shares.
-----------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
37,560,725 Common Shares.
-------------------------------------------------------------------------------
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(SEE INSTRUCTIONS) |_|
-------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
49.9%
-------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
CO
-------------------------------------------------------------------------------
SCHEDULE 13D
------------------- ---------------------------
CUSIP NO. 000000000 PAGE OF PAGES
------------------- ---------------------------
-------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS.
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY).
TAURUS INTERNATIONAL S.A.
-------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
(A) |_|
(B) |_|
-------------------------------------------------------------------------------
3 SEC USE ONLY
-------------------------------------------------------------------------------
4 SOURCE OF FUNDS (SEE INSTRUCTIONS)
Not applicable.
-------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) |_|
-------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Luxembourg
-------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 37,560,725 Common Shares.
OWNED BY -----------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON -----------------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
37,560,725 Common Shares.
-----------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
37,560,725 Common Shares as follows:
-------------------------------------------------------------------------------
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(SEE INSTRUCTIONS) |_|
-------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
49.9%
-------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
CO
-------------------------------------------------------------------------------
SCHEDULE 13D
------------------- ---------------------------
CUSIP NO. 000000000 PAGE OF PAGES
------------------- ---------------------------
-------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS.
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY).
TAURUS INVESTMENTS S.A.
-------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
(A) |_|
(B) |_|
-------------------------------------------------------------------------------
3 SEC USE ONLY
-------------------------------------------------------------------------------
4 SOURCE OF FUNDS (SEE INSTRUCTIONS)
Not applicable.
-------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) |_|
-------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Luxembourg
-------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY Nil.
OWNED BY -----------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON -----------------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
Nil.
-----------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
Nil.
-------------------------------------------------------------------------------
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(SEE INSTRUCTIONS) |_|
-------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0
-------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
0
-------------------------------------------------------------------------------
Item 1. Security and Issuer.
This Amendment No. 17 to the Schedule 13D, dated August 3, 1983, of
Minerals and Resources Corporation (as amended by Amendments Nos. 1 through 16,
the "Schedule l3D"), is filed to reflect information required pursuant to Rule
13d-2 of the Securities Exchange Act of 1934, as amended (the "Act"), relating
to common shares, no par value (the "Common Shares"), of Terra Industries Inc.
("Terra"), a Maryland corporation, with its principal executive offices located
at Terra Center, 000 0xx Xxxxxx, Xxxxx Xxxx, Xxxx 00000.
Item 2. Identity and Background.
Item 2 is hereby amended by replacing the last paragraph with the
following:
"During the last five years, neither (1) any of Anglo American plc,
Taurus International or Taurus, nor (2) to the best knowledge of Anglo American,
Taurus International or Taurus, any of the directors or executive officers of
Anglo American, Taurus International, or Taurus, has been convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors) or
has been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was or is subject to a
judgement, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, United States federal or state securities
laws or finding any violation with respect to such laws."
Item 2 of the Schedule 13D is further amended by deleting Annex A in
its entirety and substituting in its place Annex A to this Amendment No. 17.
Item 3. Source and Amount of Funds or Other Consideration.
Not applicable.
Item 4. Purpose of Transaction.
Item 4 is hereby amended in its entirety to read as follows:
"On March 13, 2000 (the "Closing Date"), Taurus International, Taurus,
Credit Agricole Lazard Financial Products Bank ("CALFP") and Tokyo-Mitsubishi
International plc ("Tokyo-Mitsubishi International") entered into a purchase
agreement ("Purchase Agreement") under which (1) Taurus International sold
1,000,000 Common Shares, or approximately 1.36 % of the outstanding capital
stock of the Company, to Tokyo-Mitsubishi International, and (2) Taurus sold
3,750,000 Common Shares, or approximately 4.9 % of the outstanding capital stock
of the Company, to CALFP and 250,000 Common Shares, or approximately 0.34 % of
the outstanding capital stock of the Company, to Tokyo-Mitsubishi International.
Simultaneously with these sales, Taurus International entered into a Call Option
Agreement, dated the Closing Date ("Call Option Agreement"), with CALFP pursuant
to which CALFP sold a call option to Taurus International in respect of
5,000,000 Common Shares. The purpose of the transactions was to reduce the
holding by Anglo American in the issued share capital of the Company to below
50%, so that Anglo American may account for the results of the Company under
relevant accounting standards on an equity rather than a consolidated basis.
Anglo American will determine the timing of any further sale or course of action
in relation to its holding in the Company based on market and other conditions
and will continue to evaluate its position."
Item 5. Interest in Securities of the Issuer.
Item 5 is hereby amended in its entirety to read as follows:
"(a) Except as referred to in Item 2 hereof, neither Anglo American,
Taurus International or Taurus, nor, to the best knowledge of Anglo American,
Taurus International or Taurus, any of the executive officers or directors of
Anglo American, Taurus International or Taurus owns beneficially, or has any
right to acquire, directly or indirectly, any of the Common Shares of Terra.
As of the date hereof, Anglo American and Taurus International are
deemed to beneficially own 37,560,725 Common Shares of Terra, or 49.9% of the
total number of outstanding Common Shares of Terra, as reported to Anglo
American, Taurus International and Taurus by Terra. Taurus has disposed of its
entire holding of Common Shares under the Purchase Agreement, and owns no Common
Shares of the Company as of the date hereof.
(b) Taurus has voting or dispositive power with respect to no Common
Shares of Terra. Taurus International has sole voting and dispositive power with
respect to 37,560,725 Common Shares of Terra, or 49.9% of the outstanding Common
Shares of Terra. Anglo American, through its subsidiary Taurus International,
has sole voting and dispositive power with respect to 37,560,725 Common Shares
of Terra, or 49.9% of the outstanding Common Shares of Terra.
(c) Neither Anglo American, Taurus International or Taurus, nor, to the
best knowledge of Anglo American, Taurus International or Taurus, the executive
officers or directors of any of them has effected, during the 60 days preceding
the date of this Schedule 13D, any transaction in the Common Shares of Terra
except as disclosed in this Amendment.
(d) Not applicable
(e) On March 13, 2000, Taurus has disposed of its entire holding of
Common Shares under the Purchase Agreement and owns no Common Shares of the
Company."
Item 6. Contract, Arrangements, Undertakings or Relationships with Respect to
Securities of the Issuer.
Item 6 is hereby amended by the addition of the following paragraph:
"On February 29, 2000, Taurus International, Taurus, CALFP and
Tokyo-Mitsubishi International entered into a letter of intent, confirming the
results of their negotiations and their mutual agreement regarding the execution
of the Purchase Agreement and the Call Option Agreement, subject to the
satisfaction of certain conditions precedent in the letter of intent.
The Purchase Agreement, dated the Closing Date, between Taurus
International and Taurus as sellers, and CALFP and Tokyo-Mitsubishi
International as purchasers, was the agreement pursuant to which (1) Taurus
International sold 1,000,000 Common Shares, or approximately 1.36 % of the
outstanding capital stock of the Company, to Tokyo-Mitsubishi International,
and (2) Taurus sold 3,750,000 Common Shares, or approximately 4.9 % of the
outstanding capital stock of the Company, to CALFP, and 250,000 Common Shares,
or approximately 0.34 % of the outstanding capital stock of the Company, to
Tokyo-Mitsubishi International. In each case, Common Shares of Terra were sold
at a price of US $2.25 per share. The aggregate consideration received by the
two sellers was $11,250,000. The Purchase Agreement contains certain
representations and warranties by each of the parties that are commonly found in
agreements relating to comparable transactions.
The Call Option Agreement, dated the Closing Date, between Taurus
International and CALFP, was entered into simultaneously with the Purchase
Agreement and was the agreement pursuant to which CALFP sold a call option to
Taurus International in respect of 5,000,000 Common Shares. The agreement is in
the form of the relevant agreement developed by the International Swap and
Derivatives Association, Inc. During the period from the Closing Date and ending
four years after the Closing Date, Taurus International may exercise the option
under the circumstances set forth in the Call Option Agreement (which option
shall be cash settled), subject to the terms and conditions of the Call Option
Agreement. The Call Option Agreement provides for CALFP to pay to Taurus
International 100% of any increase in the share price of the Common Shares
between $0.25 and $4.00 per share, $3.75 plus 75% of the increase between $4.00
and $6.00 per share, $5.25 plus 50% of the increase between $6.00 and $8.00 per
share and $6.25 plus 0% of the increase above $8.00, in each case multiplied by
the aggregate number of shares sold to CALFP and Tokyo-Mitsubishi International
on the Closing Date, with the extent of the increase calculated using a
different basis (being (1) the price per Share on the New York Stock Exchange,
(2) the price per Share at which Taurus International is able to sell Shares or
(3) the price per Share at which CALFP is able to sell Shares) depending on the
circumstances in which the option was exercised, and in each case subject to the
provisions of the Call Option Agreement.
The obligations of CALFP are guaranteed by a guarantee from Caisse
Nationale de Credit Agricole.
Item 7. Material to be filed as Exhibits.
The following are hereby added as exhibits:
Letter of Intent, dated February 29, 2000, between Taurus
International, Taurus, CALFP and Tokyo-Mitsubishi International
Purchase Agreement, dated March 13, 2000, between Taurus International,
Taurus, CALFP and Tokyo-Mitsubishi International.
Call Option Agreement, dated March 13, 2000, between Taurus
International and CALFP.
Deed of Guarantee, dated March 29, 1995, executed by way of deed poll
by Caisse Nationale de Credit Agricole.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
ANGLO AMERICAN plc
By:
----------------------------------
Name: X. Xxxxxx
Title: Secretary
TAURUS INTERNATIONAL S.A.
By:
----------------------------------
Name: X.X.X. Xxxxxxx
Title: Secretary
TAURUS INVESTMENTS S.A.
By:
----------------------------------
Name: X.X.X. Xxxxxxx
Title: Secretary
Date: March 14, 2000
ANNEX A
I. The following list sets forth the names of certain Directors and Executive
Officers of Anglo American.
Name: X. Xxxxxxx Xxxxxxxx (Chairman and Chief Executive Officer)
Citizenship: South African
Business Address: 00 Xxxxxxx Xxxxx Xxxxxxx, Xxxxxx, Xxxxxx Xxxxxxx
Principal Occupation: Chairman of Anglo American
Name: X. Xxxx (Vice Chairman)
Citizenship: South African
Business Address: 00 Xxxxxxx Xxxxx Xxxxxxx, Xxxxxx XX0X 0XX, Xxxxxx Xxxxxxx
Principal Occupation: Executive Director, Anglo American, with responsibility for Anglo Platinum and
Anglo Ferrous Metals and joint responsibility for Anglo Industries
Name: Xx. X. X. Xxxxxxxx (Executive Director)
Citizenship: British
Business Address: 00 Xxxxxxx Xxxxx Xxxxxxx, Xxxxxx XX0X 0XX, Xxxxxx Xxxxxxx
Principal Occupation: Executive Director with responsibility for Anglo Coal and Anglo Base Metals
Name: Viscount Xxxxxxx Xxxxxxxx (Director)
Citizenship: Belgian
Business Address: 00 Xxx Xxxxxx, X-0000
Xxxxxxxx, Xxxxxxx
Principal Occupation: Chairman, Societe Generale de Belgique (Bank)
Name: Xx. X.X. Xxx (Director)
Citizenship: British
Business Address: Xxxxxxxxxx, Xxxxx Xxxx, Xxxxxxx,
Xxxxxxxxx, XX0 XXX, Xxxxxx Xxxxxxx
Principal Occupation: Director of Companies
Name: X.X. Xxxxxxx (Director)
Citizenship: South African
Business Address: XX Xxx 00000, Xxxxxxxxxxxx 0000, Xxxxxxxx xx Xxxxx Xxxxxx
Principal Occupation: Executive Director and Chief Executive, AngloGold Limited
Name: Sir J.C.L. Keswick (Director)
Citizenship: British
Business Address: 00 Xxxxx Xxxx
Xxxxxx XX0X 0XX, Xxxxxx Xxxxxxx
Principal Occupation: Senior Banking and Capital Markets Adviser, Societe Generale (bank)
Name: X. X. Xxxx (Executive Vice Chairman)
Citizenship: South African
Business Address: 00 Xxxxxxx Xxxxx Xxxxxxx, Xxxxxx XX0X 0XX, Xxxxxx Xxxxxxx
Principal Occupation: Vice Chairman, Anglo American
Name: X. X. Xxx (Finance Director)
Citizenship: British
Business Address: 00 Xxxxxxx Xxxxx Xxxxxxx, Xxxxxx XX0X 0XX, Xxxxxx Xxxxxxx
Principal Occupation: Finance Director, Anglo American
Name: X.X. Xxxxxxxx CBE (Director)
Citizenship: British
Business Address: ICI Group Headquarters, 0 Xxxxxxxx, Xxxxxx XX0X 0XX Xxxxxx Xxxxxxx
Principal Occupation: Vice Chairman, ICI PLC
Name: X. X. Xxxxxxxxxxx (Deputy Chairman)
Citizenship: South African
Business Address: Xx Xxxxx Xxxxx, Xxxxxx Xxxxxxxx Xxxxxx and Xxxxxxxxx Xxxx, Xxxxx,
Xxxxxxxxxxxx, 0000, Xxxxxxxx xx Xxxxx Xxxxxx
Principal Occupation: Director and Chairman, Xx Xxxxx Consolidated Mines Limited and De Beers
Centenary AG
Name: X.X Xxxxxxx (Deputy Chairman and Senior Non-Executive Director)
Citizenship: United Kingdom
Business Address: 0 Xxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxx Xxxxxxx
Principal Occupation: Director of Companies
Name: X. X. Xxxxxx (Executive Director)
Citizenship: South African
Business Address: 00 Xxxxxxx Xxxxx Xxxxxxx, Xxxxxx XX0X 0XX, Xxxxxx Xxxxxxx
Principal Occupation: Executive Director of Anglo American with responsibility for Anglo Forest
Products, Anglo Industrial Minerals and joint responsibility for Anglo Industries
Name: X.X. Xxxxxx-Xxxxxxx (Director)
Citizenship: British
Business Address: 00 Xxxxxxx Xxxxx Xxxxxxx, Xxxxxx XX0X 0XX, Xxxxxx Xxxxxxx
Principal Occupation: Chairman, Mercury World Mining Trust
II. The following table sets forth certain information concerning each of the
Directors and Officers of Taurus International.
Name: X.X.X. Xxxxxxx (Director)
Citizenship: British
Business Address: 0, xxx Xxxxxx Xxxxx, X-0000 Xxxxxxxxxx
Principal Occupation: Company Secretary, Anglo American Luxembourg
Name: X.X.X Xxxxxx (Director)
Citizenship: Dutch
Business Address: 0, xxx Xxxxxx Xxxxx, X-0000 Xxxxxxxxxx
Principal Occupation: Financial Manager, Anglo American Luxembourg
Name: X.X. Xxxxxxx (Director)
Citizenship: British
Business Address: 0, xxx Xxxxxx Xxxxx, X-0000 Xxxxxxxxxx
Principal Occupation: Head of Luxembourg Office, Anglo American
III. The following list sets forth the names of certain Directors and
Officers of Taurus Investments and the sections of this Annex "A" in
which other information concerning them is set out, to which sections
reference is hereby made:
X.X.X. Xxxxxxx (Director) SECTION 2
X.X.X. Xxxxxx (Director) SECTION 2
X.X. Xxxxxxx (Director) SECTION 2
EXHIBIT D
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED, OR ANY APPLICABLE SECURITIES OR "BLUE-SKY" LAWS. THESE SECURITIES MAY
NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION
THEREFROM UNDER SAID ACT OR LAWS. ADDITIONALLY, THE TRANSFER OF THESE SECURITIES
IS SUBJECT TO THE CONDITIONS SPECIFIED IN THE PURCHASE AGREEMENT, DATED AS OF
MARCH 13, 2000, BETWEEN TAURUS INTERNATIONAL S.A., TAURUS INVESTMENTS S.A.,
CREDIT AGRICOLE LAZARD FINANCIAL PRODUCTS BANK AND TOKYO-MITSUBISHI
INTERNATIONAL PLC, AND NO TRANSFER OF THESE SECURITIES SHALL BE VALID OR
EFFECTIVE UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED.
EXHIBIT E - INDIVIDUAL GUARANTEE
[CREDIT AGRICOLE LOGO]
INDIVIDUAL GUARANTEE
THIS GUARANTEE is executed as a DEED the ____ day of ______________ by CAISSE
NATIONALE DE CREDIT AGRICOLE of 00-00 Xxxxxxxxx Xxxxxxx, 00000 Xxxxx, Xxxxxx
(the "GUARANTOR") in favor of Taurus International S.A. 0 xxx Xxxxxx Xxxxx
X-0000 (xxx "GUARANTEED COUNTERPARTY"). Luxembourg
1. INTERPRETATION
In this Guarantee, unless the context otherwise requires:
"GENERAL GUARANTEE" means the guarantee by way of deed poll executed by
the Guarantor on the twenty ninth day of March 1995 in favour of certain
creditors of the Principal, a copy of which is attached hereto;
"GUARANTEED OBLIGATION" means:
(a) any spot or forward sale or purchase, swap or option on any
commodities, equities, interest rate, currencies or indices thereof,
or any other similar transaction (including an option with respect to
any of these transactions), and any combination of these
transactions, and any payment or delivery obligation (whether as
lender or as borrow) in respect of any securities lending
transaction, and/or any obligation under or pursuant to or in
connection with any master agreement under which any of the
foregoing or any other derivative transaction is entered into or is
capable of being entered into; and
(b) any moneys borrowed or raised including moneys borrowed or raised by
way of loan from any bank or financial institution or from any person
by means of the issue of bonds, debentures, notes, commercial paper,
certificates of deposit or any other debt securities.
"PRINCIPAL" means Credit Agricole Lazard Financial Products Bank.
2. GUARANTEE
2.1 In consideration of the Guaranteed Counterparty agreeing to transact
business with the Principal, the Guarantor hereby irrevocably guarantees
to the Guaranteed Counterparty the prompt payment when due by the
Principal of its obligations and liabilities under and in respect of all
Guaranteed Obligations owed to the Guaranteed Counterparty and promises to
pay upon written demand of the Guaranteed Counterparty (such demand to be
accompanied by the information required by Clause 7.2 and a copy of the
demand made by the Guaranteed Counterparty to the Principal in respect of
such sums), all sums from time to time properly due and payable (but
unpaid) by the Principal under and in respect of all Guaranteed
Obligations owed to the Guaranteed Counterparty.
2.2 The Guaranteed Counterparty hereby agrees that, upon execution and
delivery of this Guarantee, it shall no longer be covered by, or able to
take the benefit of, the General Guarantee.
3. NATURE OF GUARANTEE; PRESERVATION OF RIGHTS
3.1 Without prejudice to any defence available to the Guarantor in its
capacity as such (except for any defence expressly waived pursuant to
Clause 3.3), the Guarantor reserves the right to assert any defence to
payment of any sum due under or in respect of any Guaranteed Obligation
which is or would have been available to the Principal.
3.2 The obligations of the Guarantor herein contained shall be in addition to
and not in substitution for any other security which the Guaranteed
Counterparty may at any time hold in respect of any of the Principal's
obligations to it under any Guaranteed Obligation and may be enforced
without the Guaranteed Counterparty first having recourse to any such
security or taking steps or proceedings against the Principal in respect
of such security.
3.3 Without prejudice to the provisions of Clause 3.1, neither the obligations
of the Guarantor to the Guaranteed Counterparty herein contained nor the
rights, powers and remedies conferred in respect or the Guarantor upon the
Guaranteed Counterparty by law shall be discharged, impaired or otherwise
affected by:
(i) the insolvency, winding-up, dissolution, receivership,
administration or reorganisation of the Principal or any analogous
event occurring in respect of the Principal or any change in its
status, function, control or ownership or the Principal entering
into any arrangement, composition or assignment for the benefit of
creditors;
(ii) time or other indulgence being granted or agreed to be granted by
the Guaranteed Counterparty to, or any composition or other
arrangement made with or accepted from (a) the Principal in respect
of its obligations to the Guaranteed Counterparty under a Guaranteed
Obligation or (b) any person in respect of any security granted in
respect of a Guaranteed Obligation;
(iii) any amendment being made to the terms of, or any variation, waiver
or release of, a Guaranteed Obligation owed to the Guaranteed
Counterparty or any security granted in respect of a Guaranteed
Obligation owed to the Guaranteed Counterparty;
(iv) any failure by the Guaranteed Counterparty to realise or fully to
realise the value of, or any release, discharge, exchange or
substitution of, any security granted in respect of a Guaranteed
Obligation; or
(v) any failure (whether intentional or not) by the Guaranteed
Counterparty to take, or fully to take, or perfect or make available
to the Guarantor any security now or hereafter agreed to be taken by
the Guaranteed Counterparty in relation to a Guaranteed Obligation.
3.4 Any discharge given by the Guaranteed Counterparty to the Guarantor in
respect of the Guarantor's obligations to it hereunder or any other
agreement reached between the Guaranteed Counterparty and the Guarantor in
relation thereto shall be, and be deemed
always to have been, void if any act on the faith of which the Guaranteed
Counterparty gave the Guarantor that discharge or entered into that
agreement is subsequently avoided by or in pursuance of any provision of
law.
3.5 The Guaranteed Counterparty shall not be obliged before exercising any of
the rights, powers or remedies conferred upon it in respect of the
Guarantor by law:
(i) to take any action in any court or obtain judgment in any court
against the Principal;
(ii) to make or file any claim or proof in a winding-up or dissolution of
the Principal; or
(iii) to enforce or seek to enforce any security taken by it in respect of
a Guaranteed Obligation.
3.6 The Guarantor agrees that, so long as any amounts are or may be owed by
the Principal to the Guaranteed Counterparty pursuant to any Guaranteed
Obligation or the Principal is under any actual or contingent obligations
to the Guaranteed Counterparty under any Guaranteed Obligation, the
Guarantor shall not exercise any rights which the Guarantor may at any
time have by reason of performance by it of its obligations to the
Guaranteed Counterparty hereunder:
(i) to be indemnified by the Principal;
(ii) to claim any contribution from any other guarantor of the
Principal's obligations to the Guaranteed Counterparty; and/or
(iii) to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Guaranteed
Counterparty in relation to any of the Principal's obligations to
the Guaranteed Counterparty or of any security taken pursuant to or
in connection therewith.
4. REPRESENTATIONS AND WARRANTIES
The Guarantor represents that:
(i) it is duly incorporated in the Republic of France and has power to
enter into and perform this Guarantee and has taken all necessary
corporate action to authorise the execution, delivery and
performance of this Guarantee;
(ii) the execution, delivery and performance of this Guarantee will not
contravene any law or regulation to which the Guarantor is subject
or any provision of the Guarantor's constitutive documents and all
governmental or other consents requisite for such execution,
delivery and performance are in full force and effect;
(iii) the execution, delivery and performance of this Guarantee will not
result in the existence of or oblige the Guarantor to create, any
mortgage, charge, pledge, lien
or other encumbrance over any present or future revenues or assets
of the Guarantor; and
(iv) the execution, delivery and performance of this Guarantee will not
cause the Guarantor to be in breach of or default under any
agreement binding on it or any of its assets.
5. PAYMENTS
5.1 Any provision relating to the payments to be made under or in respect of a
Guaranteed Obligation (including, without limitation, those regulating
what is to happen if the Principal is required by law to make a deduction
or withholding from any such payment) shall apply mutatis mutandis to
payments to be made hereunder in respect of such Guaranteed Obligation.
5.2 The Guarantor reserves the right (a) to exercise any right of set-off
available to the Principal in relation to the Guaranteed Counterparty in
respect of the sums guaranteed to the Guaranteed Counterparty hereby and
(b) to take the benefit of any netting arrangements between the Principal
and the Guaranteed Counterparty in respect of sums guaranteed to the
Guaranteed Counterparty hereby.
6. CONTINUING SECURITY
This Guarantee shall be a continuing security to the Guaranteed
Counterparty in respect of each and every one of the Guaranteed
Obligations owed to the Guaranteed Counterparty and shall not be (or be
construed so as to be) discharged by any intermediate discharge or payment
of or on account of the Guaranteed Obligations owed to the Guaranteed
Counterparty or any of them or any settlement of accounts between the
Guaranteed Counterparty and the Principal or anyone else.
7. DEMANDS
7.1 Any written demand made, or notice given, by the Guaranteed Counterparty
pursuant to Clause 2 may be made by facsimile (any facsimile transmission
to be confirmed by post) to the following address / facsimile number:
Direction de la Gestion Financiere, Caisse Nationale de Credit Agricole
S.A., 00/00 xxx Xxxxxxx, 00000 Xxxxx Cedex 15, Fax - 00.00.00.00.00, Tel -
00.00.00.00.00.
7.2 Any written demand made by the Guaranteed Counterparty pursuant to Clause
2 shall be accompanied by
(i) a calculation or other appropriate evidence supporting the amount of
the sums claimed by the Guaranteed Counterparty in such demand and
the fact that the sums are due and payable; and
(ii) a copy of any written demand made by the Guaranteed Counterparty to
the Principal.
8. TERMINATION
This Guarantee may be terminated upon written notice being given by the
Guarantor to the Guaranteed Counterparty at the address specified above
(or such other address as the Guaranteed Counterparty shall have notified
to the Guarantor) and shall terminate seven days thereafter (the
"TERMINATION DATE"). Provided that this Guarantee shall remain in full
force and effect with respect to obligations of the Principal of the
Guaranteed Counterparty which are outstanding or contracted prior to the
Termination Date until all such obligations have been paid in full.
9. GOVERNING LAW
This Guarantee shall be governed by and construed in accordance with
English law and the Guarantor hereby irrevocably submits to the
non-exclusive jurisdiction of the English Courts.
IN WITNESS WHEREOF this Guarantee has been duly executed as a deed the day and
year first above written.
Executed as a DEED by: /s/ J. Bouysset
-------------------
Name: Xxxx Bouysset
Title: Chief Financial Officer
on behalf of CAISSE NATIONALE DE CREDIT AGRICOLE
ATTACHMENT
COPY OF GENERAL GUARANTEE
[CREDIT AGRICOLE LOGO]
GENERAL GUARANTEE
THIS GUARANTEE by way of DEED POLL is executed the twenty ninth day of March
1995 by CAISSE NATIONALE DE CREDIT AGRICOLE of 00-00 Xxxxxxxxx Xxxxxxx, 00000
Xxxxx, Xxxxxx (the "Guarantor").
1. INTERPRETATION
In this Guarantee, unless the context otherwise requires:
"Guaranteed Obligation" means
(a) any spot or forward sale or purchase, swap or option on any
commodities, equities, interest rate, currencies or indices
thereof, or any other similar transaction (including an option
with respect to any of these transactions), and any
combination of these transactions, and/or any obligation under
or pursuant to or in connection with any master agreement
under which any of the foregoing or any other derivative
transaction is entered into or is capable of being entered
into; and
(b) any moneys borrowed or raised including moneys borrowed or
raised by way of loan from any bank or financial institution
or from any person by means of the issue of bonds, debentures,
notes, commercial paper, certificates of deposit or any other
debt securities;
"GUARANTEED COUNTERPARTY" means each person to whom the Principal is
liable in respect of a Guaranteed Obligation;
"PRINCIPAL" means Credit Agricole Lazard Financial Products Bank.
2. GUARANTEE
In consideration of each Guaranteed Counterparty agreeing to transact
business with the Principal, the Guarantor hereby irrevocably
guarantees to each such Guaranteed Counterparty the prompt payment when
due by the Principal of its obligations and liabilities under and in
respect of all Guaranteed Obligations and promises to pay upon written
demand of such Guaranteed Counterparty (such demand to be accompanied
by the information required by Clause 7.2 and a copy of the demand made
by such Guaranteed Counterparty to the Principal in respect of such
sums), all sums from time to time properly due and payable (but unpaid)
by the Principal under and in respect of all Guaranteed Obligations.
3. NATURE OF GUARANTEE; PRESERVATION OF RIGHTS
3.1 Without prejudice to any defence available to the Guarantor in its
capacity as such (except for any defence expressly waived pursuant to
Clause 3.3), the Guarantor reserves the right to assert any defence to
payment of any sum due under or in respect of any Guaranteed Obligation
which is or would have been available to the Principal.
-1-
3.2 The obligations of the guarantor herein contained shall be in addition
to and not in substitution for any other security which a Guaranteed
Counterparty may at any time hold in respect of any of the Principal's
obligations under any Guaranteed Obligation and may be enforced without
such Guaranteed Counterparty first having recourse to any such security
and without such Guaranteed Counterparty first taking steps or
proceedings against the Principal in respect of such security.
3.3 Without prejudice to the provisions of clause 3.1, neither the
obligations of the Guarantor herein contained nor the rights, powers
and remedies conferred in respect of the Guarantor upon a Guaranteed
Counterparty by law shall be discharged, impaired or otherwise affected
by:
(i) the insolvency, winding-up, dissolution, receivership,
administration or reorganization of the Principal or any
analogous event occurring in respect of the Principal or any
change in its status, function, control or ownership or the
Principal entering into any arrangement, composition or
assignment for the benefit of creditors;
(ii) time or other indulgence being granted or agreed to be granted
by such Guaranteed Counterparty to, or any composition or
other arrangement made with or accepted from (a) the Principal
in respect of its obligations under a Guaranteed Obligation or
(b) any person in respect of any security granted in respect
of a Guaranteed Obligation;
(iii) any amendment being made to the terms of, or any variation,
waiver or release of, a Guaranteed Obligation or any security
granted in respect of a Guaranteed Obligation;
(iv) any failure to realise or fully to realise the value of, or
any release, discharge, exchange or substitution of, any
security granted in respect of a Guaranteed Obligation; or
(v) any failure (whether intentional or not) to take, or fully to
take, or perfect or make available to the Guarantor any
security now or hereafter agreed to be taken by the Guaranteed
Counterparty in relation to a Guaranteed Obligation.
3.4 Any discharge given by the Guaranteed Counterparty to the Guarantor in
respect of the Guarantor's obligations hereunder or any other
agreement reached between such Guaranteed Counterparty and the
Guarantor in relation thereto shall be, and be deemed
always to have been, void if any act on the faith of which such
Guaranteed Counterparty gave the Guarantor that discharge or entered
into that agreement is subsequently avoided by or in pursuance of any
provision of law.
3.5 The Guaranteed Counterparty shall not be obliged before exercising any
of the rights, powers or remedies conferred upon it in respect of the
Guarantor by law:
(i) to take any action in any court or obtain judgment in any
court against the Principal;
(ii) to make or file any claim or proof in a winding-up or
dissolution of the Principal; or
(iii) to enforce or seek to enforce any security taken in
respect of a Guaranteed Obligation.
3.6 The Guarantor agrees that, so long as any amounts are or may be owed by
the Principal to the Guaranteed Counterparty pursuant to any Guaranteed
Obligation or the Principal is under any actual or contingent
obligations to the Guaranteed Counterparty under any Guaranteed
Obligation, the Guarantor shall not exercise any rights which the
Guarantor may at any time have by reason of performance by it of its
obligations to the Guaranteed Counterparty hereunder:
(i) to be indemnified by the Principal;
(ii) to claim any contribution from any other guarantor of the
Principal's obligations to the Guaranteed Counterparty; and/or
(iii) to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of such Guaranteed
Counterparty in relation to any of the Principal's obligations
to such Guaranteed Counterparty or of any security taken
pursuant to or in connection therewith.
4. REPRESENTATIONS AND WARRANTIES
The Guarantor represents that:
(i) it is duly incorporated in the Republic of France and has
power to enter into and perform the Guarantee and has taken
all necessary corporate action to authorise the execution,
delivery and performance of the Guarantee;
(ii) the execution, delivery and performance of the Guarantee will
not contravene any law or regulation to which the Guarantor is
subject or any provision of the Guarantor's constitutive
documents and all governmental or other consents requisite for
such execution, delivery and performance are in full force and
effect;
(iii) the execution, delivery and performance of the Guarantee will
not result in the existence of oblige the Guarantor to create,
any mortgage, charge, pledge, lien or other encumbrance over
any present or future revenues or assets of the Guarantor; and
-2-
(iv) the execution, delivery and performance of the Guarantee will
not cause the Guarantor to be in breach of or default under
any agreement binding on it or any of its assets.
5. PAYMENTS
5.1 Any provision relating to the payments to be made under or in respect
of a Guaranteed Obligation (including, without limitation, those
regulating what is to happen if the Principal is required by law to
make a deduction or withholding from any such payment) shall apply
mutatis mutandis to payments to be made hereunder in respect of such
Guaranteed Obligation.
5.2 The Guarantor reserves the right (a) to exercise any right of set-off
available to the Principal in relation to any Guaranteed Counterparty
in respect of the sums guaranteed hereby and (b) to take the benefit of
any netting arrangements between the Principal and such Guaranteed
Counterparty in respect of sums guaranteed hereby.
6. CONTINUING SECURITY
This Guarantee shall be a continuing security to each Guaranteed
Counterparty in respect of each and every one of the Guaranteed
Obligations and shall not be (or be construed so as to be) discharged
by any intermediate discharge or payment of or on account of the
Guaranteed Obligations or any of them or any settlement of accounts
between such Guaranteed Counterparty and the Principal or anyone else.
7. DEMANDS
7.1 Any written demand made, or notice given, by a Guaranteed Counterparty
pursuant to Clause 2 may be made by facsimile (any facsimile
transmission to be confirmed by post) to the following
address/facsimile number: Direction de la Gestion Financiere, Caisse
Nationale de Credit Agricole S.A., 00/00 xxx Xxxxxxx, 00000 Xxxxx Cedex
15, Fax - 00.0.00.00.00.00, Tel - 00.0.00.00.00.00.
7.2 Any written demand made by a Guaranteed Counterparty pursuant to Clause
2 shall be accompanied by
(i) a calculation or other appropriate evidence supporting the
amount of the sums claimed by such Guaranteed Counterparty in
such demand and the fact that the sums are due and payable;
and
(ii) a copy of any written demand made by such Guaranteed
Counterparty to the Principal.
8. TERMINATION
This Guarantee may be terminated by the Guarantor at any time, notice
being given by publication in The Financial Times, such termination
taking effect thirty days thereafter (the "TERMINATION DATE"). Provided
that this Guarantee shall remain in full force and effect with respect
to all Guaranteed Obligations which are outstanding or contracted prior
to the Termination Date until all such obligations have been paid in
full.
-3-
9. GOVERNING LAW
This Guarantee shall be governed by and construed in accordance with
English law and the Guarantor hereby irrevocably submits to the
non-exclusive jurisdiction of the English Courts.
IN WITNESS WHEREOF this Guarantee has been duly executed the day and year first
above written.
By: /s/ Xxxx Bouysset
--------------------------------
Name: Xxxx Bouysset
Title: Chief Financial Officer
on behalf of CAISSE NATIONALE DE CREDIT AGRICOLE
-4-
