Exhibit 4.4
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
TRANSACTION AGREEMENT
by and among
ARDAGH GROUP S.A.,
ELEMENT HOLDINGS II L.P.
and
TRIVIUM PACKAGING B.V.
Dated as of July 14, 2019
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[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
Certain Rules of Construction18
TRANSFER; ISSUANCE AND PAYMENT19
Local Acquisition Agreements26
Works Council/Consultation Matters26
Representations and Warranties of Ardagh33
Governmental Consents and Approvals35
Absence of Certain Changes or Events36
Compliance with Law; Permits; Anti-Corruption36
No Other Representations or Warranties50
Representations and Warranties of Element51
Ownership and Operations of NewCo53
Governmental Consents and Approvals53
Absence of Certain Changes or Events54
Compliance with Law; Permits; Anti-Corruption55
No Other Representations or Warranties68
AGREEMENTS OF ARDAGH and ELEMENT68
Conduct of the Ardagh Business68
Conduct of the Exal Business71
Use of Ardagh Names and Marks83
Credit and Performance Support Obligations84
German Profit and Loss Transfer Agreements85
Mutual Services Agreement Matters95
Asset Transfers; Wrong Pockets.95
Fiscal Unity Tax Cooperation97
Terms and Conditions of Employment103
No Third Party Beneficiaries; No Amendment104
Conditions Precedent to the Obligations of the Parties104
Conditions Precedent to the Obligations of Ardagh105
Conditions Precedent to the Obligations of Element105
Frustration of Closing Conditions106
i
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
List of Exhibits [*]
Exhibit A | Ardagh Sample Closing Statement and Closing Statement Methodologies |
Exhibit B | Element Sample Closing Statement and Closing Statement Methodologies |
Exhibit C | Form of Shareholders Agreement |
Exhibit D | Form of Mutual Services Agreement |
Exhibit E | Form of IP Cross-License Agreement |
Exhibit F | French Offer Letter |
Exhibit G | Dutch Offer Letter |
Exhibit H | Accrued Benefits Assumptions |
ii
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
TRANSACTION AGREEMENT
THIS TRANSACTION AGREEMENT (this “Agreement”) is made as of July 14, 2019, by and among (i) Ardagh Group S.A., a société anonyme organized under the laws of Luxembourg (“Ardagh”), (ii) Element Holdings II L.P., a Cayman Islands exempted limited partnership (“Element”), and (iii) Trivium Packaging B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) organized under the laws of the Netherlands (“NewCo”) (each of Ardagh, Element and NewCo, a “Party” and together, the “Parties”).
WITNESSETH:
WHEREAS, on the terms and subject to the conditions set forth herein and in the Related Agreements, Ardagh and Element desire to jointly own Ardagh’s metal food and specialty business (the “Ardagh Business”) and Element’s business (the “Exal Business”);
WHEREAS, the Ardagh Business is currently principally operated by the direct and indirect Subsidiaries of Ardagh set forth on Part A of Schedule 1 (the “Ardagh Purchased Entities”), and the Exal Business is currently operated by the direct and indirect Subsidiaries of Element (excluding NewCo and any of its Subsidiaries prior to the Closing) set forth on Part A of Schedule 2 (the “Exal Purchased Entities”);
WHEREAS, NewCo has been formed by Element as a wholly-owned Subsidiary of Element Netherlands Holding Cooperatief, U.A. to, following the Closing, be jointly owned by Ardagh and Element in accordance with this Agreement and the Shareholders Agreement and to own and operate the Ardagh Business and the Exal Business through its ownership of the Ardagh Purchased Entities and Exal Purchased Entities, respectively;
WHEREAS, in connection therewith, the Parties desire that, at the Closing, (a) Ardagh will, and/or will cause the Ardagh Sellers (as applicable) to, contribute, transfer, grant, sell, convey, assign and deliver to NewCo or its designated Subsidiary all of the Ardagh Equity Interests and (b) Element and the Element Sellers contribute, transfer, grant, sell, convey, assign and deliver to NewCo or its designated Subsidiary all of the Exal Equity Interests, in the manner and subject to the terms and conditions set forth herein;
WHEREAS, under applicable labor Laws, one or more Employee Representative Bodies of certain of the Specified French Entities and of the Specified Dutch Entities are required to be informed and consulted with respect to (a) the offer made by NewCo to acquire the issued share capital of the Specified French Entities held, directly or indirectly, by Ardagh (the “French Shares”) and the issued share capital of the Specified Dutch Entities held, directly or indirectly, by Ardagh (the “Dutch Shares”), respectively, and (b) any security that is contemplated to be granted by or financing undertaken in respect of the Specified French Entities or the Specified Dutch Entities, respectively, in connection with the contemplated Debt Financing;
WHEREAS, the Parties have agreed that, unless and until such consultation has been satisfactorily completed in accordance with Section 2.8 and applicable Law, and Ardagh has accepted, as the case may be, the French Offer or the Dutch Offer, as applicable, (i) this Agreement
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[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
shall not apply to the Specified French Entities and the French Shares or the Specified Dutch Entities and the Dutch Shares, respectively, and (ii) the Closing shall not occur; and
WHEREAS, prior to the date hereof, in order that Ardagh may continue to exploit certain intellectual property for the purpose of the business of developing and manufacturing aluminum bottles, certain intellectual property rights have been transferred by one or more Ardagh Purchased Entities to an Affiliate of Ardagh that is not an Ardagh Purchased Entity; and in order to ensure that NewCo and Ardagh may both independently pursue the business of developing and manufacturing aluminum bottles, Ardagh and NewCo will license to one another pursuant to the IP Cross-License Agreement certain intellectual property (including such transferred intellectual property) commencing as of the Closing relating to the development and manufacture of aluminum bottles and which might facilitate the development of technology to produce commercially viable aluminum bottles.
NOW, THEREFORE, in consideration of the foregoing and of the mutual agreements, covenants, representations, and warranties contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows.
“Action” means any action, suit, proceeding, arbitration, claim, demand, litigation, prosecution, contest, investigation, inquiry, hearing, inquest, audit, complaint, dispute or other legal recourse, in each case, by or before a Governmental Authority or arbitration tribunal, whether civil, criminal, administrative, disciplinary or otherwise.
“Additional Facility” means (a) an asset backed lending facility or (b) as mutually agreed by the Parties, an alternative liquidity facility, in each case, (i) in the principal amount of at least $250 million and to be arranged by Citibank N.A. and provided to NewCo and/or its Subsidiaries and (ii) on terms reasonably satisfactory to each of the Parties.
“Affiliate” means, with respect to any Person, any other Person that, directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with such Person; provided that no Party nor any of its Subsidiaries shall be deemed to be an Affiliate of another Party or its Subsidiaries regardless of any joint venture transaction between them, except that, prior to the Closing, NewCo shall be an Affiliate of Element.
“Ardagh Bank Account” means a bank account to be designated by Ardagh in a written notice to NewCo and Element at least five (5) Business Days prior to the Closing Date.
“Ardagh Business Employee” means any (a) current or former employee of any Ardagh Purchased Entity except any Out-of-Scope Employee and (b) employee of Ardagh or its
2
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
Affiliates (other than an Ardagh Purchased Entity) who is named on Section 6.1(a)(ii) of the Ardagh Disclosure Schedule.
“Ardagh Combined Financial Statements” means the audited combined financial statements of the Ardagh Purchased Entities prepared on a carve-out basis from the consolidated financial statements of Ardagh Group S.A. to represent the financial position and performance of the Ardagh Business as if the Ardagh Business had existed on a stand-alone basis as at and for each of the fiscal years ending December 31, 2018, 2017 and 2016 (together with the notes, if any, relating thereto).
“Ardagh Combined Interim Financial Statements” means the unaudited combined financial statements of the Ardagh Purchased Entities prepared on a carve-out basis from the consolidated financial statements of Ardagh Group S.A. to represent the financial position and performance of the Ardagh Business as if the Ardagh Business had existed on a stand-alone basis as at and for the fiscal quarter ending March 31, 2019 (together with the notes, if any, relating thereto).
“Ardagh Disclosure Schedule” means the disclosure schedule delivered by Ardagh to Element immediately prior to the execution and delivery of this Agreement.
“Ardagh Equity Interests” means all of the equity and other ownership interests in those Ardagh Purchased Entities set forth on Part B of Schedule 1.
“Ardagh Existing Indebtedness” means, collectively, (i) that certain Credit and Guaranty Agreement, dated as of December 7, 2017, by and among, inter alios, Ardagh, as the parent, the borrowers from time to time party thereto, the guarantors from time to time party thereto, the lenders from time to time party thereto and Citibank, N.A., as administrative agent and collateral agent, (ii) that certain indenture, dated as of May 16, 2016, by and among Ardagh Packaging Finance plc and Ardagh Holdings USA, Inc., as issuers (collectively, the “Issuers”), Citibank, N.A., London Branch, as trustee, principal paying agent, transfer agent and security agent, Citibank, N.A., as U.S. paying agent, Ardagh, as parent guarantor, the subsidiary guarantors listed therein and Citigroup Global Markets Deutschland AG (as registrar, the “Registrar”), (iii) that certain indenture, dated as of May 16, 2016, by and among the Issuers, Citibank, N.A., London Branch, as trustee, principal paying agent, transfer agent and security agent, Citibank, N.A., as U.S. paying agent, the Company, as parent guarantor, the subsidiary guarantors listed therein and the Registrar, (iv) that certain indenture, dated as of January 30, 2017, by and among the Issuers, Citibank, N.A., London Branch, as trustee, principal paying agent, transfer agent and security agent, Citibank, N.A., as U.S. paying agent, the Company, as parent guarantor, the subsidiary guarantors listed therein and the Registrar, (v) that certain indenture, dated as of March 8, 2017, by and among the Issuers, Citibank, N.A., London Branch, as trustee, principal paying agent, transfer agent and security agent, Citibank, N.A., as U.S. paying agent, Ardagh, as parent guarantor, the subsidiary guarantors listed therein and the Registrar, (vi) that certain indenture, dated as of June 12, 2017, by and among the Issuers, Citibank, N.A., London Branch, as trustee, principal paying agent, transfer agent and security agent, Citibank, N.A., as U.S. paying agent, the Company, as parent guarantor, the subsidiary guarantors listed therein and the Registrar and (vii) that certain indenture, dated as of September 16, 2016, by and among ARD Finance S.A. as issuer,
3
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
Citibank, N.A., as U.S. paying agent and the Registrar, in each case of the foregoing clauses (i) through (vii), as amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the Closing Date and any security agreements, intercreditor agreements, pledge agreements, mortgages, deeds of trust, collateral assignment, control agreements and related agreements, as amended, supplemented, restated, renewed, refunded, replaced, restructured, repaid, refinanced or otherwise modified from time to time executed in connection therewith.
“Ardagh Fundamental Representations” means the representations and warranties of Ardagh as set forth in Sections 3.1 (Organization; Authority), 3.2 (Capitalization), 3.3(a) (No Conflict with Organizational Documents), 3.9 (Brokers), and 3.20(b) (Sufficiency of Assets).
“Ardagh Retained Plan” means a Plan sponsored, maintained or contributed to by Ardagh or any of its Affiliates in which any Ardagh Business Employee participates or with respect to which Ardagh or any of its Affiliates has or could reasonably be expected to have any liability related to any Ardagh Business Employee, which includes for this purpose the Ardagh Long Term Incentive Plan and the Ardagh UK Plan other than the Ardagh UK Impress Plan; provided, however, that no Ardagh Transferred Plan shall be an Ardagh Retained Plan.
“Ardagh Sellers” means the Persons set forth on Part C of Schedule 1.
“Ardagh Shared Contracts” means the Contracts set forth on Section 5.17 of the Ardagh Disclosure Schedule (as such schedule may be updated by Ardagh prior to Closing in consultation with Element to add any Contract not identified prior to the date hereof that inures in part to the benefit or burden of an Ardagh Purchased Entity, on the one hand, and Ardagh or its Affiliates (other than the Ardagh Purchased Entities) on the other hand).
“Ardagh Transferred Plan” means a Plan sponsored or maintained by the Ardagh Purchased Entities, which includes for this purpose the Ardagh UK Impress Plan.
“Ardagh UK Impress Plan” means the section of the Ardagh UK Plan known as the Impress Section established by an agreement dated April 5, 2017 and currently governed by a definitive trust deed and rules dated March 28, 2013, as amended, and the related agreement dated April 5, 2017.
“Ardagh UK Plan” means the sectionalized pension plan known as the Ardagh (UK) 2017 Pension Scheme, which is currently governed by a definitive trust deed and rules dated March 28, 2013, as amended.
“Business Day” means a day other than (a) a Saturday or Sunday or (b) any other day on which banks located in New York, NY, Ontario, Canada, London, England, Luxembourg City, Luxembourg or Amsterdam, the Netherlands are required or authorized by Law to be closed for business.
“Business Information Technology” means all tangible or digital computer systems (including computers, screens, servers, workstations, routers, hubs, switches, networks, data communications lines and hardware), software (including source code and object code) and
4
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
telecommunications systems used or held for use by the Ardagh Purchased Entities or the Exal Purchased Entities, as applicable.
“Business IP Agreements” means all licenses of and covenants not to sue regarding Intellectual Property granted to the Ardagh Purchased Entities or the Exal Purchased Entities, as applicable, from any third party (excluding “shrink-wrap” and “click-wrap” licenses and licenses concerning generally commercially available software with aggregate annual license and maintenance fees of less than $25,000) or granted by the Ardagh Purchased Entities or the Exal Purchased Entities, as applicable, to any third party.
“Cash” means, with respect to the Ardagh Purchased Entities or the Exal Purchased Entities, the amount of all cash and cash equivalents (including short term deposits and marketable securities), including all checks that have cleared and in respect of which funds have not yet been received (provided that any such amount is not included in the calculation of the Closing Working Capital Amount), minus (a) overdrafts, (b) outstanding outbound checks and other negotiable instruments used like checks, including outstanding outbound wire transfers issued prior to the Closing Date (provided that any such amount is not included in the calculation of the Closing Working Capital Amount), and (c) the amount of any dividends declared but not yet paid with a record date on or prior to the Closing Date, in each case of the foregoing definition, as determined in accordance with the applicable Closing Statement Methodologies.
“Closing Cash” means all Cash of the Ardagh Purchased Entities or the Exal Purchased Entities, as applicable, as of the Closing.
“Closing Indebtedness” means all Indebtedness of the Ardagh Purchased Entities or the Exal Purchased Entities, as the case may be, as of the Closing (including, with respect to Element, the R&W Costs of Element and its Affiliates).
“Closing Indebtedness Adjustment Amount” means (a) with respect to the Ardagh Purchased Entities, the amount (which may be a positive or negative number) equal to the difference, if any, between the Closing Indebtedness of the Ardagh Purchased Entities and [*] and (b) with respect to the Exal Purchased Entities, the amount (which may be a positive or negative number) equal to the difference, if any, between the Closing Indebtedness of the Exal Purchased Entities and [*]. For the avoidance of doubt, Closing Indebtedness of the Ardagh Purchased Entities or the Exal Purchased Entities (i) in excess of [*], respectively, shall be deemed to be a positive number and (ii) below [*], respectively, shall be deemed to be a negative number.
“Closing Working Capital Amount” means the amount equal to (a) the assets of the Ardagh Purchased Entities or Exal Purchased Entities, as the case may be, with respect to the line items specified in Exhibit A or Exhibit B, respectively, minus (b) the liabilities of the Ardagh Purchased Entities or Exal Purchased Entities, as the case may be, with respect to the line items specified in Exhibit A or Exhibit B, respectively, in each case, calculated as of the Closing (but without giving effect to the consummation of the Transactions unless provided otherwise in the Closing Statement Methodologies) in accordance with the applicable Closing Statement Methodologies. For the avoidance of doubt, (i) each line item so specified shall be treated as an asset or liability, as applicable, for the purposes of the definition of “Closing Working Capital
5
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
Amount” and (ii) the determination of the Closing Working Capital Amount shall exclude any amounts (including those line items identified in Exhibit A or Exhibit B, respectively) included in Closing Cash and Closing Indebtedness.
“Closing Working Capital Excess” means (a) with respect to the Ardagh Purchased Entities, the amount, if any, by which the Closing Working Capital Amount of the Ardagh Purchased Entities exceeds the Target Closing Working Capital Amount of the Ardagh Purchased Entities and (b) with respect to the Exal Purchased Entities, the amount, if any, by which the Closing Working Capital Amount of the Exal Purchased Entities exceeds the Target Closing Working Capital Amount of the Exal Purchased Entities.
“Closing Working Capital Shortfall” means (a) with respect to the Ardagh Purchased Entities, the amount, if any, by which the Target Closing Working Capital Amount of the Ardagh Purchased Entities exceeds the Closing Working Capital Amount of the Ardagh Purchased Entities and (b) with respect to the Exal Purchased Entities, the amount, if any, by which the Target Closing Working Capital Amount of the Exal Purchased Entities exceeds the Closing Working Capital Amount of the Exal Purchased Entities.
“Collective Bargaining Agreement” means any collective bargaining agreement, works council agreement or similar labor contract.
“Confidentiality Agreement” means the Confidentiality Agreement, dated December 9, 2018, between Ardagh and Element.
“Contract” means any contract, agreement, indenture, note, bond, mortgage, lease, license (other than Permits), instrument or other commitment or obligation, whether written or oral (to the extent legally binding), including arising out of any course of conduct.
“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 and policies of a Person, whether through the ownership of voting securities, as a trustee, by contract, or otherwise.
“Conveyance Tax” means any and all excise, sales, use, value added, registration, stamp, recording, documentary, property, transfer and similar Taxes.
“Debt Financing” means (a) the debt financing to be incurred by NewCo (or one or more of its Subsidiaries) in respect of the Transactions, in the amount of $2,750,000,000 and on terms reasonably satisfactory to each of the Parties and (b) the Additional Facility.
“Debt Financing Sources” means each Person that shall provide or facilitate the provision of the Debt Financing to NewCo or one or more of its Subsidiaries.
“Element Bank Account” means a bank account to be designated by Element in a written notice to NewCo and Ardagh at least five (5) Business Days prior to the Closing Date.
6
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
“Element Disclosure Schedule” means the disclosure schedule delivered by Element to Ardagh immediately prior to the execution and delivery of this Agreement.
“Element Fundamental Representations” means the representations and warranties of Element as set forth in Sections 4.1 (Organization; Authority), 4.2 (Capitalization), 4.3 (Ownership and Operations of NewCo), 4.4(a) (No Conflict with Organizational Documents), 4.10 (Brokers) and 4.21(b) (Sufficiency of Assets).
“Element Plan” means a Plan sponsored, maintained or contributed to by (a) the Exal Purchased Entities or (b) Element or any of its Affiliates in which any Exal Business Employee participates or with respect to which Element or any of its controlled Affiliates (including, for the avoidance of doubt, all Exal Purchased Entities) has or could reasonably be expected to have any liability related to any Exal Business Employee.
“Element Sellers” means those Persons set forth on Part C of Schedule 2.
“Employee Representative Body” means any works’ council, labor union, trade union or similar employee representative body.
“Encumbrance” means any encumbrance, mortgage, fixed or floating charge, pledge, lien, restriction, guarantee, trust, right to acquire, option or right of pre-emption or first refusal, assignment, hypothecation, security interest, title retention, legal or equitable third party right or interest, including any assignment by way of security or trust arrangement for the purpose of providing security, encroachment, deed of trust or deed to secure debt, recorded or unrecorded easement, right of way, covenant, condition, license, reservation, subdivision and other defects of title of any kind or rights of others for rights of way, utilities and similar purposes that adversely affect real property.
“Environmental Law” means any Law pertaining to: (i) the protection of the environment (including air quality, surface water, groundwater, soils, subsurface strata, sediments, drinking water, noise, natural resources and biota) or human health and safety (but only with respect to exposure to Hazardous Materials); or (ii) the use, registration, management, generation, storage, treatment, recycling, disposal, discharge, transportation, Release, threatened Release, investigation or remediation of Hazardous Materials.
“Environmental Permit” means any license, permit, approval, certificate, registration, restriction or other authorization issued by or required from any Governmental Authority, issued under Environmental Laws.
“ERISA” means the U.S. Employee Retirement Income Security Act of 1974, as amended.
“ERISA Affiliate” means, with respect to any Person, any entity that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with such Person, in each case, as defined in Sections 414(b), (c), (m) or (o) of the U.S. Code.
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[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
“Escrow Contribution Amount” means the amount, if any, by which the Special Mandatory Redemption Price payable upon a Special Mandatory Redemption (including accrued interest and Additional Amounts (if any) due with respect to the Notes from the Issue Date to the Special Mandatory Redemption Date) exceeds the Escrowed Property (each of the foregoing capitalized terms having the meaning ascribed to such term in the preliminary offering memorandum of Trivium Packaging Finance B.V., dated July 15, 2019, issued with respect to the notes portion of the Debt Financing).
“Estimated Closing Indebtedness Adjustment Amount” means (a) with respect to the Ardagh Purchased Entities, the amount (which may be a positive or negative number) equal to the difference, if any, between the Estimated Ardagh Closing Indebtedness and [*] and (b) with respect to the Exal Purchased Entities, the amount (which may be a positive or negative number) equal to the difference, if any, between the Estimated Exal Closing Indebtedness and [*]. For the avoidance of doubt, Estimated Ardagh Closing Indebtedness or Estimated Exal Closing Indebtedness (i) in excess of [*], respectively, shall be deemed to be a positive number and (ii) below [*], respectively, shall be deemed to be a negative number.
“Estimated Closing Working Capital Excess” means (a) with respect to the Ardagh Purchased Entities, the amount, if any, by which the Estimated Ardagh Closing Working Capital Amount exceeds the Target Closing Working Capital Amount of the Ardagh Purchased Entities and (b) with respect to the Exal Purchased Entities, the amount, if any, by which the Estimated Exal Closing Working Capital Amount exceeds the Target Closing Working Capital Amount of the Exal Purchased Entities.
“Estimated Closing Working Capital Shortfall” means (a) with respect to the Ardagh Purchased Entities, the amount, if any, by which the Target Closing Working Capital Amount of the Ardagh Purchased Entities exceeds the Estimated Ardagh Closing Working Capital Amount and (b) with respect to the Exal Purchased Entities, the amount, if any, by which the Target Closing Working Capital Amount of the Exal Purchased Entities exceeds the Estimated Exal Closing Working Capital Amount.
“Exal Business Employee” means any current or former employee of the Exal Purchased Entities.
“Exal Dividend Overage” means the amount by which any dividends or distributions paid by any Exal Purchased Entity to any equityholder of Element Parent or its Subsidiaries (other than an Exal Purchased Entity) between the date hereof and the Closing Date in accordance with and subject to Section 5.2(e) exceeds [*].
“Exal Equity Interests” means all of the equity and ownership interests in the Exal Purchased Entities set forth on Part B of Schedule 2.
“Exal Existing Indebtedness” means that certain Third Amended and Restated Credit Agreement, dated as of March 3, 2017, by and among Element, as a guarantor, the other guarantors from time to time party thereto, the borrowers from time to time party thereto, the lenders from time to time party thereto, Bank of Montreal, as administrative agent, U.S. collateral
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[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
agent and Dutch collateral agent and TMF Brasil Administração e Gestão de Ativos Ltda., as Brazilian collateral agent, as amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the Closing Date and any security agreements, intercreditor agreements, pledge agreements, mortgages, deeds of trust, collateral assignment, control agreements and related agreements, as amended, supplemented, restated, renewed, refunded, replaced, restructured, repaid, refinanced or otherwise modified from time to time executed in connection therewith.
“Final Closing Statement” means, with respect to an Initial Closing Statement, (a) such Initial Closing Statement, if Ardagh (with respect to the Initial Element Closing Statement) or Element (with respect to the Initial Ardagh Closing Statement) delivers a Notice of Acceptance or fails to deliver a Notice of Disagreement by the Objection Deadline Date or (b) such Initial Closing Statement as modified in accordance with Section 2.9, if Ardagh (with respect to the Initial Element Closing Statement) or Element (with respect to the Initial Ardagh Closing Statement) timely delivers a Notice of Disagreement.
“GAAP” means U.S. generally accepted accounting principles, as in effect from time to time.
“German Fiscal Unities” means the currently existing fiscal unities (Organschaften) for German corporate income and trade Tax purposes (i) between AGMP, as subsidiary, and AGG, as parent, and (ii) between AMPG, as subsidiary, and AGMP, as parent.
“Governmental Authority” means any national, federal, state, local, supranational, regional, or provincial government or any court of competent jurisdiction, administrative or regulatory agency, board, bureau, arbitrator, tribunal, or arbitral body or commission or other national, state, local, supranational, regional or provincial governmental authority or instrumentality entitled to exercise any administrative, executive, judicial, legislative, police, regulatory or taxing authority or power.
“Governmental Order” means any order, writ, judgment, injunction, ruling, decision, decree, settlement, stipulation, determination or award of, entered by or with any Governmental Authority.
“Hazardous Materials” means any material, substances or waste that is defined, regulated or otherwise characterized as toxic, hazardous, radioactive, or as a contaminant, pollutant or words of similar meaning or effect under any applicable Environmental Law, and any pesticides, petroleum products, used or waste petroleum products, polychlorinated biphenyls and asbestos.
“IFRS” means the International Financial Reporting Standards as issued by the International Accounting Standards Board.
“Indebtedness” means, as of any time, without duplication, as applied to any Person, (a) all indebtedness of such Person for borrowed money; (b) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments or debt securities and warrants; (c) all liabilities and obligations of such Person in respect of all performance bonds, banker’s acceptances or letters of credit, to the extent drawn; (d) all interest, fees, prepayment or redemption
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[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
premiums or penalties and other expenses (including breakage costs) owed with respect to any indebtedness, liabilities or obligations of the type referred to in clauses (a) to (c); and (e) all indebtedness, liabilities or obligations of the type referred to in the foregoing clauses (a) through (d) that is directly or indirectly guaranteed by such Person or which such Person has agreed (contingently or otherwise) to purchase, guarantee or otherwise acquire or in respect of which it has otherwise assured a creditor against loss, in each such case in this clause (e), only to the extent such guarantee, or agreement to purchase, guarantee or otherwise acquire is recognized by, and consistent with, the Closing Statement Methodologies. For purposes of this definition, all lease obligations of such Person, including those which are required to be capitalized in accordance with GAAP or IFRS, shall be excluded.
“Indemnified Party” means (a) Element and its Affiliates and (b) NewCo and its Affiliates (for the avoidance of doubt, other than Ardagh and any of its other Affiliates), and each of their respective successors.
“Initial Closing Statement” means, with respect to the Ardagh Purchased Entities, the Initial Ardagh Closing Statement, and with respect to the Exal Purchased Entities, the Initial Element Closing Statement.
“Intellectual Property” means all intellectual property worldwide (i.e., in any country), including all right, title and interest in or to the following: (a) patents and patent applications, (b) trademarks, service marks, trade dress, trade names and internet domain names, together with the goodwill associated exclusively therewith, (c) copyrights, including copyrights in computer software, (d) registrations and applications for registration for any of the foregoing and (e) confidential and proprietary information, including trade secrets and rights in know-how.
“IP Cross-License Agreement” means the agreement to be entered into by and between Ardagh and NewCo on substantially the terms set forth on Exhibit E.
“Knowledge of Ardagh” means the actual knowledge, after reasonable inquiry or investigation, of [*], which reasonable inquiry includes the reasonable inquiry by them of [*].
“Knowledge of Element” means the actual knowledge, after reasonable inquiry or investigation, of [*], which reasonable inquiry includes the reasonable inquiry by them of [*].
“Law” means any national, federal, state, local, supranational or provincial law (including common law), statute, code, Governmental Order, consent decree, doctrine, ordinance, rule, regulation, treaty or other legal requirement of any Governmental Authority.
“Leased Real Property” means real property leased, subleased, sub-subleased, licensed or otherwise occupied by an Ardagh Purchased Entity or an Exal Purchased Entity, as applicable.
“Liabilities” means any and all liabilities and obligations, whether accrued or unaccrued, fixed or variable, known or unknown, absolute or contingent, determined or determinable, or matured or unmatured.
10
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
“Losses” means any and all losses, Liabilities, damages, assessments, fines, costs and expenses, interest, awards, judgments and penalties (including reasonable lawyers’ and consultants’ fees and expenses of investigation, enforcement or collection in connection therewith) actually suffered or incurred by a Person, but excluding punitive, incidental, consequential, special or indirect losses, Liabilities and damages (including loss of revenues or profits, whether in the present or future, diminution in value or loss of business reputation or opportunity), except to the extent such losses are actually awarded pursuant to a third-party claim.
“Material Adverse Effect” means, with respect to the Ardagh Business (including the Ardagh Purchased Entities) (on the one hand) or the Exal Business (including the Exal Purchased Entities) (on the other hand), any fact, condition, change, effect, event, occurrence, or development that (when taken together with all such other facts, conditions, changes, effects, events, occurrences or developments), individually or in the aggregate, is or would reasonably be expected to (1) prevent or materially impair or materially delay the ability of Ardagh or the Ardagh Sellers (with respect to the Ardagh Business) or Element or the Element Sellers (with respect to the Exal Business), as applicable, to perform their respective obligations under this Agreement or to consummate the Transactions, or (2) have a material adverse effect on the business, properties, assets, financial condition or results of operations of the Ardagh Business, taken as a whole, or the Exal Business, taken as a whole, as applicable; provided, however, that none of the following shall be taken into account in determining whether there has been a Material Adverse Effect under clause (2) hereof: (a) any fact, condition, change, effect, event, occurrence or development arising out of or resulting from the execution of this Agreement, the disclosure (but, for the avoidance of doubt, not the consummation) or pendency of the Transactions, including by reason of the identity of Element (with respect to the Ardagh Business) or Ardagh (with respect to the Exal Business) as a party to this Agreement; (b) any change, effect, event, occurrence or development: (i) in the financial or securities markets (including interest rates, exchange rates and commodity prices) in general, or economic, regulatory or political conditions in general; (ii) generally affecting the industries in which the Ardagh Business or the Exal Business, as applicable, operates; or (iii) resulting from natural disasters, acts of God, war, sabotage or terrorism, or an escalation or worsening thereof; (c) any failure by the Ardagh Purchased Entities or the Exal Purchased Entities, as applicable, to meet any internal or published projections, forecasts or revenue or earnings predictions (it being understood that this clause (c) shall not prevent or otherwise affect a determination that any event, circumstance, change or effect underlying such failure has resulted in, or contributed to, a Material Adverse Effect); (d) changes in Law or accounting standards or authoritative interpretations thereof; (e) any action expressly required to be taken pursuant to this Agreement; and (f) any action or inaction approved or consented to by Element (with respect to the Ardagh Purchased Entities) or by Ardagh (with respect to the Exal Purchased Entities); provided that in the case of the foregoing clauses (b) and (d), any such change, effect, event, occurrence or development may be taken into account to the extent it has a disproportionately adverse effect on the Ardagh Business (taken as a whole) or Exal Business (taken as a whole), as applicable, as compared to other participants in the industries and markets in which the Ardagh Business or Exal Business, as applicable, operates (in respect of the business conducted by them in such industries), but solely to the extent of such disproportionate effect.
“Multiemployer Plan” means a “multiemployer plan” within the meaning of Section 3(37) of ERISA and subject to ERISA.
11
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
“Mutual Services Agreement” means the agreement to be entered into by and between Ardagh and NewCo on substantially the terms set forth on Exhibit D.
“Neutral Accountant” means a United Kingdom office of KPMG LLP (or, if such firm shall decline or is unable to act, a United Kingdom office of Deloitte LLP, or, if such firm shall decline of is unable to act, a United Kingdom office of another independent accounting firm of international reputation reasonably acceptable to Ardagh and Element).
“NewCo Per Share Price” means [*].
“NewCo Shares” means ordinary shares of NewCo.
“Objection Deadline Date” means (a) in the case of the Initial Ardagh Closing Statement, the date that is forty-five (45) days after delivery of such Initial Closing Statement to Element and (b) in the case of the Initial Element Closing Statement, that date that is forty-five (45) days after delivery of such Initial Closing Statement to Ardagh.
“Out-of-Scope Employee” means any employee who is identified in Section 6.1(a)(i) of the Ardagh Disclosure Schedule (as such schedule may be updated by Ardagh prior to Closing in consultation with Element solely to remove those employees of the Ardagh Business that Ardagh and Element agree should be an Ardagh Business Employee).
“Owned Intellectual Property” means all Intellectual Property owned by any of the Ardagh Purchased Entities or the Exal Purchased Entities, as applicable.
“Owned Real Property” means real property in which an Ardagh Purchased Entity, or an Exal Purchased Entity, as applicable, has valid title in fee simple (or any equivalent interest), together with all buildings and other structures, facilities or improvements located thereon, all fixtures, systems, equipment and items of personal property of such party attached or appurtenant thereto and all easements, licenses, rights and appurtenances relating to the foregoing.
“Permit” means any permit, approval, consent, license, franchise, registration, certificate, or similar authorization, from any Governmental Authority.
“Permitted Encumbrances” means any (a) Encumbrances for Taxes, assessments or other Governmental Authority charges or levies that are (i) not yet due and payable, (ii) due but not delinquent or (iii) that are being contested in good faith by appropriate proceedings and for which adequate reserves have been maintained in accordance with GAAP or IFRS, as applicable, (b) statutory Encumbrances of landlords, carriers, warehousemen, mechanics, materialmen and repairmen for amounts not yet due or due but not delinquent or being contested in good faith by appropriate proceedings, (c) Encumbrances incurred or deposits made to a Governmental Authority in connection with a Permit, (d) Encumbrances incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance or other types of social security, (e) imperfections of title and other recorded or unrecorded Encumbrances, in each case, that do not, individually or in the aggregate, (1) interfere with the present use of or occupancy of the affected real property in any material respect or (2) impair in any material respect the ability of such parcel to be mortgaged or sold, leased or subleased for its present use,
12
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
(f) Encumbrances not created by Ardagh, Element or any of their respective Affiliates that affect the underlying fee interest of any Leased Real Property, (g) rights of a lessor under an operating lease or capitalized lease or of any licensor under a license, in each case, entered into in the ordinary course of business, (h) all non-exclusive licenses and covenants not to assert granted in the ordinary course of business with respect to Intellectual Property, (i) zoning, building, subdivision, land use, environmental regulations and other similar restrictions or requirements, in each case, that do not, individually or in the aggregate, (1) interfere with the present use of or occupancy of the affected real property in any material respect or (2) impair in any material respect the ability of such parcel to be mortgaged or sold, leased or subleased for its present use, (j) Encumbrances resulting from any facts or circumstances caused by Element or its Affiliates (with respect to the Ardagh Purchased Entities) or Ardagh or its Affiliates (with respect to the Exal Purchased Entities), and (k) Encumbrances resulting from the Debt Financing.
“Person” means any individual, corporation, partnership, company, partnership (exempt, general or limited), limited liability company, association, trust, joint venture or other entity or organization or any Governmental Authority.
“Personal Information” means, in addition to any definition for any similar term (e.g., “personally identifiable information” or “PII”) provided by applicable Law, or by Ardagh or any of the Ardagh Purchased Entities, or by Element or any of the Exal Purchased Entities, as applicable, in any of its privacy policies or notices, contracts or other public-facing statements, all information, in any form, regarding identifying an individual person or device, including (a) information that identifies, could be used to identify or is otherwise identifiable with an individual or a device, including name, physical address, telephone number, email address, financial information, financial account number or government-issued identifier, (b) any data regarding an individual’s activities online or on a mobile device or other application, whether or not such information is associated with an identifiable individual, and (c) Internet Protocol addresses, device identifiers or other persistent identifiers. Personal Information may relate to any individual, including a current, prospective, or former customer or employee of any Person, and includes information in any form or media, whether paper, electronic, or otherwise.
“Plan” means any “employee benefit plan” (within the meaning of Section 3(3) of ERISA, whether or not subject to ERISA), and any other employment, bonus, compensation, equity-based arrangement, stock purchase, deferred compensation, medical or life insurance, severance, pension, retirement plan, retiree medical or life insurance, old-age part-time (Altersteilzeit), employee assistance, fringe benefit and any other employee benefit program, agreement, policy or arrangement but excluding any plan, program or arrangement sponsored by a Governmental Authority.
“Post-Closing Tax Period” means any taxable period beginning after the Closing Date, and, in the case of any taxable period that includes, but does not begin on, the day after the Closing Date, the portion of such taxable period which begins the day after the Closing Date.
“Pre-Closing Tax Period” means any taxable period ending on or prior to the Closing Date, and, in the case of any taxable period beginning on or prior to and ending after the Closing Date, the portion of such taxable period which ends on the Closing Date.
13
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
“Privacy Laws” means any and all applicable Laws and legal requirements relating to privacy, data security, and Personal Information, and similar applicable consumer protection laws, including with respect to the receipt, collection, compilation, use, storage, processing, sharing, safeguarding, security, disposal, destruction, disclosure or transfer (including cross-border) of Personal Information, including the U.S. Federal Trade Commission Act, U.S. Payment Card Industry Data Security Standard, U.S. Controlling the Assault of Non-Solicited Pornography and Marketing Act, U.S. Telephone Consumer Protection Act, General Data Protection Regulation, Regulation 2016/679/EU on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (GDPR), and any and all applicable Laws governing breach notification in connection with Personal Information.
“Registered” means issued by, registered, recorded or filed with, renewed by or the subject of a pending application before any Governmental Authority or Internet domain name registrar.
“Regulatory Approvals” means the filings, consents, clearances or other approvals or permissions of Governmental Authorities required for the consummation of the Transactions for the jurisdictions that are set forth on Schedule 7.1(b).
“Related Agreements” means the Shareholders Agreement, the Mutual Services Agreement, the IP Cross-License Agreement and any Local Acquisition Agreement(s), including in each case, the schedules and exhibits thereto.
“Release” means any release, spill, emission, discharge, leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching or migration into or through the environment of any Hazardous Materials.
“Representatives” means, with respect to any Person, such Person’s Affiliates and professional advisors and its and their respective directors, officers, members, managers, partners, employees and agents.
“Shareholders Agreement” means the agreement to be entered into among the Parties in substantially the form attached hereto as Exhibit C.
“Specified Dutch Entities” means Ardagh Metal Packaging Netherlands B.V. and Ardagh Aluminium Packaging Netherlands B.V.
“Specified French Entities” means Ardagh Group France S.A.S., Ardagh MP Group France S.A., Ardagh MP West France S.A.S., Ardagh Aluminium Packaging France S.A.S. and Ardagh Metal Packaging France S.A.S.
“Subsidiary” of any Person means another Person, of which at least a majority of the outstanding securities or ownership interests having, by their terms, ordinary voting power to elect a majority of the board of directors or other persons performing similar functions is owned or controlled directly or indirectly by such first Person or by one or more of its Subsidiaries.
14
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
“Target Closing Working Capital Amount” means (a) with respect to the Ardagh Purchased Entities, [*] and (b) with respect to the Exal Purchased Entities, [*].
“Tax” or “Taxes” means any and all taxes, charges, fees, levies or other assessments imposed by a Taxing Authority (whether national, state, provincial or local), including income, excise, franchise, real or personal property, sales, transfer, gains, gross receipts, occupation, privilege, payroll, wage, unemployment, workers’ compensation, Social Security, Medicare, use, value-added, capital, license, severance, stamp, recording, documentary, premium, windfall profits, environmental, capital stock, profits, withholding, registration, customs duties, employment, alternative or add-on minimum, estimated, escheat or other taxes of any kind whatsoever (whether disputed or not), including any related charges, fees, interest, penalties, additions to tax or other assessments imposed by the Taxing Authority.
“Tax Returns” means any return, declaration, report or form, claim for refund, information return or other statement (including estimated returns and withholding returns) filed or required to be filed with any Governmental Authority with respect to Taxes, including any schedules or attachments thereto and any amendments thereof.
“Taxing Authority” means any Governmental Authority that is responsible for the administration or imposition of any Tax.
“U.S. Code” means the U.S. Internal Revenue Code of 1986, as amended.
“U.S. Treasury Regulations” means the regulations promulgated under the U.S. Code, by the United States Department of the Treasury, as such regulations may be amended from time to time.
“Unresolved Objections” means the objections set forth on any Notice of Disagreement delivered pursuant to Section 2.9(a) that remain unresolved following discussions pursuant to Section 2.9(e)(i).
Accrued Benefits | Section 6.2(e)(i) |
AGG | Section 5.12(a)(i) |
AGMP | Section 5.12(a)(i) |
Agreed Court | Section 10.4(b) |
Agreement | Preamble |
Ardagh | Preamble |
Ardagh Actuary | Section 6.2(e)(iii) |
Ardagh Additional Adjustment Amount | Section 2.2(a)(i) |
Ardagh Business | Recitals |
Ardagh Cash Consideration | Section 2.2(a)(ii) |
Ardagh Estimated Closing Statement | Section 2.4(a) |
Ardagh Existing Stock | Section 5.10(a) |
Ardagh Hedging Arrangements | Section 5.14(a) |
15
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
Ardagh Initial Adjustment | Section 2.2(a)(ii) |
Ardagh Insurance Policies | Section 3.18 |
Ardagh Leases | Section 3.13(b) |
Ardagh Licensed Intellectual Property | Section 3.12(b) |
Ardagh Marks | Section 5.10(a) |
Ardagh Material Contracts | Section 3.17(a) |
Ardagh NewCo Shares | Section 2.2(a)(i) |
Ardagh Owned Intellectual Property | Section 3.12(b) |
Ardagh Purchased Entities | Recitals |
Ardagh Terminable Breach | Section 9.1(d) |
Ardagh U.S. DB Plan | Section 6.2(e) |
Balance Sheet Date | Section 3.6 |
Closing | Section 2.5(a) |
Closing Date | Section 2.5(a) |
Closing Statement Methodologies | Section 2.9(a) |
Delayed Transfer Asset | Section 5.18(b) |
Dispute | Section 10.5(a) |
Dispute Notice | Section 10.5(b) |
Disputed Items | Section 2.9(d) |
Dutch Acceptance Notice | Section 2.8(c) |
Dutch Offer | Section 2.8(c) |
Dutch Offer Letter | Section 2.8(c) |
Dutch Shares | Recitals |
Element | Preamble |
Element Estimated Closing Statement | Section 2.4(b) |
Element Initial Adjustment | Section 2.2(b) |
Element Insurance Policies | Section 4.19 |
Element NewCo Shares | Section 2.2(b) |
Element Note | Section 2.2(b) |
Element Owed Amount | Section 2.2(b) |
Element Parent Plans | Section 6.2(a)(ii) |
Element Prorated Bonuses | Section 6.2(c)(i) |
Element Terminable Breach | Section 9.1(c) |
Enforceability Exceptions | Section 3.1(b) |
Estimated Ardagh Closing Cash | Section 2.4(a) |
Estimated Ardagh Closing Indebtedness | Section 2.4(a) |
Estimated Ardagh Closing Working Capital Amount | Section 2.4(a) |
Estimated Exal Closing Cash | Section 2.4(b) |
Estimated Exal Closing Indebtedness | Section 2.4(b) |
Estimated Exal Closing Working Capital Amount | Section 2.4(b) |
EU Regulatory Investigation | Section 5.15(a) |
Exal Business | Recitals |
Exal Financial Statements | Section 4.6(a) |
Exal Interim Financial Statements | Section 4.6(c) |
Exal Key Customer | Section 4.18(a)(ii) |
Exal Key Supplier | Section 4.18(a)(i) |
16
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
Exal Leases | Section 4.14(b) |
Exal Licensed Intellectual Property | Section 4.13(b) |
Exal Material Contracts | Section 4.18(a) |
Exal Owned Intellectual Property | Section 4.13(b) |
Exal Purchased Entities | Recitals |
Excluded Compensation Payments | Section 6.2(c)(i) |
Excluded Guarantees | Section 5.11(b) |
Expense Cap | Section 2.3 |
French Acceptance Notice | Section 2.8(b) |
French Offer | Section 2.8(b) |
French Offer Letter | Section 2.8(b) |
French Shares | Recitals |
German GAAP | Section 5.12(a)(iv) |
Freshfields | Section 5.15(c) |
ICC Rules | Section 10.5(c) |
Indemnity Payment | Section 5.15(l) |
Initial Ardagh Closing Statement | Section 2.9(b) |
Initial Element Closing Statement | Section 2.9(b) |
Initial Settlement | Section 5.12(b)(iii) |
Insurance Proceeds | Section 5.15(l) |
Insured Party | Section 5.9(e)(i) |
Issuers | Section 1.1 |
Key Customer | Section 3.17(a)(ii) |
Key Supplier | Section 3.17(a)(i) |
Legacy Organizational Documents | Section 5.9(e)(i) |
Local Acquisition Agreements | Section 2.7 |
Local Transfer Documents | Section 2.6(a)(v) |
Loss Compensation Receivables | Section 5.12(a)(v)(A) |
Management Liability Policies | Section 5.9(e)(ii) |
National Regulatory Investigation | Section 5.15(a) |
NewCo | Preamble |
NewCo Actuary | Section 6.2(e)(iii) |
NewCo Certification Date | Section 6.2(e)(iii) |
NewCo Plans | Section 6.4(b) |
NewCo UK DB Plan | Section 6.2(d) |
NewCo U.S. DB Plan | Section 6.2(e)(i) |
Notice of Acceptance | Section 2.9(d) |
Notice of Disagreement | Section 2.9(d) |
Party or Parties | Preamble |
PBGC | Section 3.14(g) |
PLTA | Section 5.12(a)(i) |
PLTA Difference | Section 5.12(b)(iii) |
PLTA Period 2019 | Section 5.12(a)(iv) |
PLTA Termination Accounts | Section 5.12(a)(iv) |
Pre-Closing Dispute | Section 10.4(a) |
Profit Transfer Payables | Section 5.12(a)(v)(A) |
17
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
R&W Costs | Section 8.2 |
R&W Insurance Policy | Section 8.2 |
Reference Assets Amount | Section 6.2(e)(ii) |
Regulatory Investigations | Section 5.15(a) |
Registrar | Section 1.1 |
Relevant Fiscal Year | Section 5.12(b)(i) |
Relevant PLTA Amendments | Section 5.12(b)(ii) |
Review Period | Section 6.2(e)(iii) |
Rule 144A/Reg S Offering | Section 5.7(a) |
Sample Closing Statement | Section 2.9(a) |
Termination Date | Section 9.1(b) |
Third Party Claim | Section 5.15(a) |
Transactions | Section 2.5(a) |
Transferred Ardagh Business Employees | Section 6.1(b) |
Transferred Assets | Section 6.2(e)(ii) |
Transferred Business Employees | Section 6.1(c) |
Transferred Guarantees | Section 5.11(a) |
U.S. DB Funding True-Up | Section 6.2(e)(ii) |
U.S. DB Transfer Date | Section 6.2(e)(ii) |
U.S. Pension Plan | Section 3.14(f) |
18
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
following Business Day. The words “made available,” “provided” or “delivered” to a Party, or similar formulations, means that such materials were available to such Party in the electronic data room hosted by the providing Party in connection with the Transactions no later than one (1) Business Day prior to the date hereof, or were provided by electronic transmission directly to a Party’s legal counsel or financial advisor prior to such time. |
19
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
than those imposed by applicable securities Laws), and NewCo shall acquire and accept, and shall cause its designated Subsidiaries to acquire and accept, as applicable, from Element or such Subsidiaries, all of their respective right, title and interest as of the Closing in, to and under the Exal Equity Interests. |
(a) In exchange for the Ardagh Equity Interests transferred by Ardagh or its Subsidiaries, NewCo shall, at the Closing: |
20
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
pursuant to the preceding proviso shall not result in an Estimated Closing Working Capital Shortfall of the Ardagh Purchased Entities; and |
21
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
or the fifth (5th) anniversary of the Closing Date) for such Element Note customary for similar instruments or otherwise reasonably acceptable to Ardagh and Element acting in good faith. Until the Element Note has been repaid in full, all dividends and distributions to which Element would otherwise be entitled as a shareholder of NewCo shall be applied to pay the Element Note. |
(c) When calculating the adjustments contemplated by Section 2.2(a) and 2.2(b), the adjustment contemplated by Section 2.2(a) shall be calculated after giving effect to the adjustment contemplated by Section 2.2(b). |
(d) In connection with the Closing, NewCo shall cause the Existing Exal Indebtedness to be repaid in full in accordance with its terms with the proceeds from the Debt Financing. |
22
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
23
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
their terms are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions), or at such other place or at such other time or on such other date as the Parties may mutually agree upon in writing (the day on which the Closing takes place being the “Closing Date”). |
(a) Closing Deliveries by Ardagh. At the Closing, Ardagh shall authorize, execute and/or deliver to Element or NewCo, as the case may be: |
(i) a duly executed counterpart to each of the Related Agreements to which Ardagh or any of its Affiliates is to be a party; |
(ii) a certificate, duly executed by an authorized officer of Ardagh, certifying as to (A) the fulfillment of the conditions set forth in Section 7.2(a) and Section 7.2(b) and (B) the termination by Ardagh or its Affiliates of all material intercompany arrangements (other than the Ardagh Hedging Arrangements) effective as of the Closing, in accordance with Section 5.8(a)(i); |
24
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
form that is consistent with the terms and conditions of this Agreement) (collectively, the “Local Transfer Documents”), in such form as the Parties mutually agree is necessary or appropriate to effect the transfer of the Ardagh Equity Interests to NewCo or its designated Subsidiary in such jurisdiction, free and clear of all Encumbrances (other than Encumbrances arising under securities Laws or the Shareholders Agreement), duly executed by Ardagh and/or its applicable Affiliates; |
(vii) such documentation provided by Ardagh to the trustee or agent, as the case may be, required under the instruments described in clauses (i) through (vii) of the definition of Ardagh Existing Indebtedness, evidencing that the consummation of the Transactions on the Closing Date complies with the terms of such instruments. |
(b) Closing Deliveries by Element. At the Closing, Element shall authorize, execute and/or deliver to Ardagh or NewCo, as the case may be: |
(i) a duly executed counterpart to each of the Related Agreements to which Element or any of its Affiliates is to be a party; |
(v) such other customary instruments of transfer, assumptions, filings or documents, in form and substance reasonably satisfactory to Ardagh or NewCo, as the case may be, required to give effect to this Agreement. |
25
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
(ii) a certificate evidencing the Ardagh NewCo Shares to be issued to Ardagh in accordance with Section 2.2(a), registered in the name of Ardagh or its designated Affiliate; |
(iii) a certificate evidencing the Element NewCo Shares to be issued to NewCo in accordance with Section 2.2(b), registered in the name of Element or its designated Affiliate; |
(v) a duly executed counterpart to each of the Local Transfer Documents to which NewCo and/or any of its Subsidiaries is a party; and |
(vi) such other customary instruments of transfer, assumptions, filings or documents, in form and substance reasonably satisfactory to Ardagh and Element required to give effect to this Agreement. |
26
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
have the provisions of this Agreement apply to such French Shares following completion of the employee consultation process described in the French Offer Letter. Subject to acceptance of the French Offer by Ardagh following completion of the employee consultation process and upon delivery to NewCo of the executed acceptance notice attached as Schedule 2 to the French Offer Letter (the “French Acceptance Notice”), this Agreement shall apply to the French Shares and, the Specified French Entities shall be included in the Ardagh Purchased Entities. |
27
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
Transactions that are appropriate, in accordance with the terms and conditions set forth in the French Offer Letter and/or the Dutch Offer Letter, as applicable. |
28
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
29
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
(ii) Any resolution agreed to in writing by Ardagh and Element as to any such Disputed Items pursuant to Section 2.9(e)(i) shall be final and binding upon the Parties. |
30
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
(vii) The fees and disbursements of the Neutral Accountant with respect to a Notice of Disagreement delivered by Element shall be allocated between Element, on the one hand, and Ardagh, on the other hand, in proportion to the aggregate amount of Unresolved Objections so submitted to the Neutral Accountant that are unsuccessfully disputed by Element (as finally determined by the Neutral Accountant) bears to the total amount of the Unresolved Objections so submitted, as determined by the Neutral Accountant in its final determination. |
(viii) In acting under this Agreement, the Parties agree that the Neutral Accountant shall be acting as an expert and not an arbitrator, provided that the Neutral Accountant shall be entitled to the immunities of an arbitrator. |
31
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
32
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
Except as set forth in the Ardagh Disclosure Schedule (subject to the limitations set forth in Section 1.3(b)), Ardagh represents and warrants to Element and NewCo, as of the date hereof and as of the Closing Date, as follows:
33
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
(or any of the stockholders or other equityholders of Ardagh) is necessary to authorize this Agreement and the Related Agreements to which Ardagh (or such Ardagh Seller) is a party or the consummation of the transactions contemplated hereby and thereby. This Agreement has been, and upon their execution and delivery each of the Related Agreements to which Ardagh or any of its Affiliates is a party shall have been, duly executed and delivered by it, and (assuming due authorization, execution and delivery by the other parties thereto) this Agreement constitutes, and upon their execution the Related Agreements to which Ardagh or such Affiliate is a party shall constitute, the legal, valid and binding obligations of Ardagh (or such Affiliate, as applicable), enforceable against it in accordance with their respective terms, except as the enforceability hereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally or applicable equitable principles (whether considered in a proceeding at law or in equity) (the “Enforceability Exceptions”). |
34
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
other Related Agreements by the Ardagh Affiliates party thereto), and the consummation of the transactions contemplated hereby and thereby by Ardagh and its Affiliates, do not and shall not (a) violate, conflict with or result in the breach of any provision of the charter, bylaws or similar organizational or governing documents of Ardagh, any Ardagh Seller or any of the Ardagh Purchased Entities; (b) assuming that all Regulatory Approvals have been obtained, contravene, conflict with or violate any Law or Governmental Order applicable to Ardagh or any of the Ardagh Purchased Entities or by which Ardagh or any of the assets or properties of the Ardagh Business is bound or subject; or (c) violate, conflict with, result in any breach of, constitute a default (or an event which, with or without the giving of notice or lapse of time, or both, would become a default) under, or result in the loss of any right or benefit under, or result in the creation or imposition of any Encumbrance (other than a Permitted Encumbrance) on, require any consent, approval or waiver under, or give to others any rights of termination, amendment, acceleration or cancellation of, any Ardagh Material Contract or Permit, except in the case of clauses (b) and (c) (other than, in the case of clause (c), as such clause relates to the Ardagh Existing Indebtedness) for any such breaches, defaults, rights or Encumbrances as would not, individually or in the aggregate, reasonably be expected to be material to the Ardagh Business, taken as a whole, or prevent or materially impair or delay the ability of Ardagh or any Ardagh Seller to consummate the Transactions. |
(a) True and complete copies of the Ardagh Combined Financial Statements have been made available to Element by Ardagh. |
35
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
not have any Liabilities that would be required to be reflected or reserved against in a combined balance sheet of the Ardagh Purchased Entities prepared in accordance with IFRS, except, in each case, those which would not, individually or in the aggregate, reasonably be expected to be material to the Ardagh Business. |
36
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
not reasonably be expected to be, individually or in the aggregate, material to the Ardagh Business (taken as a whole). As of the date of this Agreement, no Action is pending or, to the Knowledge of Ardagh, threatened, seeking the revocation or cancellation of any such Permit relating to the Ardagh Business. |
37
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
remediation pursuant to Environmental Laws or which would reasonably be expected to result in any Ardagh Purchased Entity incurring Liabilities. |
38
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
otherwise exploit (as the case may be) all Intellectual Property licensed to it pursuant to the Business IP Agreements (subject to the terms thereof) (“Ardagh Licensed Intellectual Property”), in each case, free and clear of all exclusive licenses and Encumbrances (other than Permitted Encumbrances), except as would not reasonably be expected to be, individually or in the aggregate, material to the Ardagh Business (taken as a whole). The Ardagh Owned Intellectual Property and the Ardagh Licensed Intellectual Property, taken together with the rights granted pursuant to the IP Cross License Agreement, the Mutual Services Agreement and Section 5.10 of this Agreement (in each case, subject to the terms thereof), constitute all of the Intellectual Property necessary and sufficient for the conduct and operation of the Ardagh Business; provided, however, that this sentence shall not be construed to mean the Ardagh Business does not infringe, misappropriate or violate the Intellectual Property of any other Person, which is solely the subject of Section 3.12(e) (first sentence). |
(c) At Closing, neither Ardagh nor any of its Subsidiaries will own any Intellectual Property relating to aluminum bottles other than Intellectual Property that is licensed to NewCo pursuant to the IP Cross License Agreement. |
39
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
Intellectual Property, except as would not reasonably be expected to be, individually or in the aggregate, material to the Ardagh Business (taken as a whole). |
40
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
held for use primarily in the Ardagh Business and which are necessary for its continued operation as currently conducted. |
(e) All improvements and fixtures, and building equipment and machinery having an individual book value of at least $150,000 located on the Owned Real Property, and all improvements and fixtures, and building equipment and machinery having an individual book value of at least $150,000 owned by the Ardagh Purchased Entities located on the Leased Real Property, if any, are in good working order and repair (subject to ordinary wear and tear), and except for any defects that would not impair the use of such improvements, fixtures, building equipment or machinery. |
41
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
claims for benefits, and, to the Knowledge of Ardagh, as of the date hereof, no fact or event exists that could give rise to any such material Action, investigation or audit. |
42
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
43
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
Body is not required for Ardagh to enter into this Agreement or to consummate the Transactions. There has been no strike, slowdown, work stoppage, lockout or material labor dispute, or other material collective bargaining dispute since December 31, 2016, with respect to the Ardagh Business or the Ardagh Business Employees. All Collective Bargaining Agreements to which the Ardagh Purchased Entities or, solely with respect to any Ardagh Business Employee, Ardagh or any of its Affiliates other than the Ardagh Purchased Entities is a party are in full force and effect, and neither the execution and delivery of this Agreement and the Related Agreements, nor the consummation of the transactions contemplated by this Agreement and the Related Agreements, shall constitute a termination event thereunder. |
(d) All Ardagh Business Employees listed on Section 6.1(a)(ii) of the Ardagh Disclosure Schedule are wholly or primarily assigned to the Ardagh Business. No Out-of-Scope Employee is wholly assigned to the Ardagh Business. |
44
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
(e) There are no Tax liens on any assets of the Ardagh Purchased Entities or the Ardagh Business (other than Permitted Encumbrances). |
45
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
(n) None of the Ardagh Purchased Entities has elected the installment method for the payment of Taxes incurred pursuant to Section 965 of the U.S. Code. |
(o) The (i) PLTA between AGMP, as subsidiary, and AGG, as parent, and (ii) the profit and loss transfer agreement (Gewinnabführungsvertrag) between AGMP and AMPG |
46
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
dated June 24, 2011 satisfy the requirements for Tax consolidation under German Law, including the requirement that the underlying profit and loss pooling agreement is legally valid and binding and has been performed during its term (Durchführung der Verträge). |
47
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
(viii) any Contract under which the Ardagh Business or any Ardagh Purchased Entity has continuing material indemnification obligations to any Person, or under which any Ardagh Purchased Entity has, or is required to, assume or guarantee any material Liability of any Person; |
(ix) any Contract (A) relating to the acquisition or disposition of any business (whether by merger, sale of stock or assets, or otherwise), under which the Ardagh Business or any Ardagh Purchased Entity has any material obligation with respect to any “earn-out,” deferred or contingent purchase price or other similar contingent obligations or (B) imposing material obligations on any Ardagh Purchased Entity under any conditional sale or title retention provisions; |
(x) any Contract relating to the acquisition or disposition of any business (whether by merger, sale of stock or other equity interests, sale of assets or otherwise) or any material assets or real property, in each case, other than acquisitions or dispositions of equipment, materials, supplies, inventory or products in the ordinary course of business consistent with past practice and other than any Contract pursuant to which no party thereto has any outstanding obligation on the date hereof; |
(xi) all Contracts that contain exclusivity obligations that are material to the Ardagh Business, that restrict the ability of the Ardagh Purchased Entities to conduct their business in any material respect or that limit, or purport to limit, in any material respect the ability of the Ardagh Purchased Entities or the Ardagh Business to compete or do business with any Person or in any geographic area (other than any Contract required to be disclosed pursuant to clauses (i) or (ii) above); |
(xii) any Contract containing any “most favored nation” (or equivalent pricing provision) in favor of any third party (other than any Contract required to be disclosed pursuant to clauses (i) or (ii) above); and |
(xiii) any Contract or arrangement providing for the securitization of any receivables related to the Ardagh Business. |
48
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
not committed any material breach or default thereunder and, to the Knowledge of Ardagh, the counterparties thereto have not committed any material breach of, and are not in default under, any Ardagh Material Contract, and no event has occurred that, with notice or lapse of time or both, would constitute such a material breach, violation or default by any of the Ardagh Purchased Entities, or, to the Knowledge of Ardagh, the counterparties thereto. Ardagh has made available to Element true, correct and complete copies of each written Ardagh Material Contract (including all material amendments, supplements and modifications thereto as are in effect as of the date hereof). |
49
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
(c) No director or officer, or to the Knowledge of Ardagh, employee of Ardagh or any of its Affiliates, or any member of such Person’s immediate family, (i) owes any significant amounts to, or is owed any significant amounts by the Ardagh Business, (ii) has any material claim or cause of action against any of the Ardagh Purchased Entities or the Ardagh Business, or (iii) owns any material property or right, tangible or intangible (including Intellectual Property), that is used or held for use in connection with or that relates to the Ardagh Business. |
50
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
Except as set forth in the Element Disclosure Schedule (subject to the limitations set forth in Section 1.3(b)), Element represents and warrants to Ardagh and NewCo, as of the date hereof and as of the Closing Date, as follows:
51
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
it, and (assuming due authorization, execution and delivery by the other parties thereto) this Agreement constitutes, and upon their execution the Related Agreements to which Element or such Affiliate is a party shall constitute, the legal, valid and binding obligations of Element (or such Affiliate, as applicable), enforceable against it in accordance with their respective terms, except as the enforceability hereof may be limited by the Enforceability Exceptions. |
(c) No 30% Rule Designee (as such term is defined in the Shareholders Agreement) has any economic rights or voting rights in any Exal Purchased Entity, other than (i) as set forth in the organizational documents of such Exal Purchased Entity and any voting agreement, shareholders agreement or similar agreement related thereto, in each case, as made available to Ardagh prior to the date hereof, and (ii) the right of such designees to receive an amount (not to exceed CAD$10,000 in the aggregate) per year, together with any gross-up thereon for applicable withholding Taxes. |
52
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
53
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
thereof and for the respective periods indicated therein; and (iii) were prepared in accordance with GAAP. |
54
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
55
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
Purchased Entities; all such Environmental Permits are in full force and effect, and neither Element nor any of its Affiliates have received any written notice from any Governmental Authority relating to the revocation, termination or modification of any such Environmental Permit; (iii) there are no Actions against Exal or any of its Affiliates, including any Exal Purchased Entity, relating to the Exal Business, the Owned Real Property or Leased Real Property of the Exal Purchased Entities or the Exal Purchased Entities pursuant to any Environmental Law pending or, to the Knowledge of Element, threatened in writing; and (iv) there has been no Release of any Hazardous Materials (A) at, in, on or under any Owned Real Property of the Exal Purchased Entities, (B) by any Exal Purchased Entity or, to the Knowledge of Element, by any other Person, at, in, on or under any of the Leased Real Property of the Exal Purchased Entities, or (C) during the period of their ownership or operation thereof, at, in, on or under any facilities formerly owned or operated by the Exal Purchased Entities, or at, in, on or under any third-party sites where the Exal Purchased Entities are or have been alleged in writing to have Liabilities, in the case of (A), (B) and (C), in a condition that requires investigation or remediation pursuant to Environmental Laws or which would reasonably be expected to result in any Exal Purchased Entity incurring Liabilities. |
56
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
use thereof, except as would not reasonably be expected to be, individually or in the aggregate, material to the Exal Business (taken as a whole). |
(c) The only Intellectual Property relating to aluminum bottles owned by Element or any of its Subsidiaries is owned, directly or indirectly, by the Exal Purchased Entities. |
57
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
writing, against Element or any of the Exal Purchased Entities alleging that the Exal Business or any of the Exal Owned Intellectual Property or Exal Purchased Entities infringes, misappropriates or otherwise violates the Intellectual Property rights of any other Person or challenging any of the Exal Purchased Entities’ rights in or to any of its Intellectual Property; provided that any Action that has been initiated but with respect to which process or other comparable notice has not been served on or delivered to Element or an Exal Purchased Entity shall be deemed to be “threatened” rather than “pending”. To the Knowledge of Element, as of the date hereof, no Person is engaging or has since December 31, 2016 been engaging in any activity that infringes, misappropriates or otherwise violates, any of the Exal Owned Intellectual Property, except as would not reasonably be expected to be, individually or in the aggregate, material to the Exal Business (taken as a whole). |
58
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
real property to which it is a party as of the date hereof, including all amendments, modifications, extensions and guaranties thereto relating to Leased Real Property of the Exal Purchased Entities (the “Exal Leases”). There has not been any sublease, assignment or any other transfer of rights entered into by Element in respect of the Exal Leases. |
(e) All improvements and fixtures, and building equipment and machinery having an individual book value of at least $150,000 located on the Owned Real Property, and all improvements and fixtures, and building equipment and machinery having an individual book value of at least $150,000 owned by the Exal Purchased Entities located on the Leased Real Property, if any, are in good working order and repair (subject to ordinary wear and tear), and except for any defects that would not impair the use of such improvements, fixtures, building equipment or machinery. |
59
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
of Element, threatened, by any party, including any Governmental Authority, relating to any Element Plan, other than routine claims for benefits, and, to the Knowledge of Element, as of the date hereof, no fact or event exists that could give rise to any such material Action, investigation or audit. |
60
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
any assessments or demands for payment of withdrawal liability and (3) any audits or third party analyses with respect to the status of or withdrawal liability. |
61
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
the transactions contemplated by this Agreement and the Related Agreements, shall constitute a termination event thereunder. |
62
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
(e) There are no Tax liens on any assets of the Exal Purchased Entities or the Exal Business (other than Permitted Encumbrances). |
63
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the U.S. Code) in conjunction with the Transactions. |
(n) None of the Exal Purchased Entities has elected the installment method for the payment of Taxes incurred pursuant to Section 965 of the U.S. Code. |
64
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
(iii) all Contracts (including any mortgages, deeds of trusts, indentures, guarantees, loans or credit agreements and security agreements) relating to existing Indebtedness in excess [*], other than, in each case, (i) Permitted Encumbrances, (ii) intercompany Indebtedness and (iii) the Exal Existing Indebtedness; |
(v) all material Business IP Agreements of the Exal Purchased Entities; |
(vi) the material Exal Leases; |
(vii) any Contract under which there has been an advance or loan to or guarantee in respect of any other Person which amount is in excess [*] in the aggregate, other than the Exal Existing Indebtedness; |
(viii) any Contract under which the Exal Business or any Exal Purchased Entity has continuing material indemnification obligations to any Person, or under which any Exal Purchased Entity has, or is required to, assume or guarantee any material Liability of any Person; |
(ix) any Contract (A) relating to the acquisition or disposition of any business (whether by merger, sale of stock or assets, or otherwise), under which the Exal Business or any Exal Purchased Entity has any material obligation with respect to any “earn-out,” deferred or contingent purchase price or other similar contingent obligations or (B) imposing material obligations on any Exal Purchased Entity under any conditional sale or title retention provisions; |
(x) any Contract relating to the acquisition or disposition of any business (whether by merger, sale of stock or other equity interests, sale of assets or otherwise) or any material assets or real property, in each case, other than acquisitions or dispositions of equipment, materials, supplies, inventory or products in the ordinary course of business consistent with past practice and other than any Contract pursuant to which no party thereto has any outstanding obligation on the date hereof; |
65
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
(xi) all Contracts that contain exclusivity obligations that are material to the Exal Business, restrict the ability of the Exal Purchased Entities to conduct their business in any material respect or that limit, or purport to limit, in any material respect the ability of the Exal Purchased Entities or the Exal Business to compete or do business with any Person or in any geographic area (other than any Contract required to be disclosed pursuant to clauses (i) or (ii) above); |
(xii) any Contract containing any “most favored nation” (or equivalent pricing provision) in favor of any third party (other than any Contract required to be disclosed pursuant to clauses (i) or (ii) above); and |
(xiii) any Contract or arrangement providing for the securitization of any receivables related to the Exal Business. |
66
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
in connection with normal renewals) of any such Element Insurance Policies, nor has Element or any of its Affiliates received any recommendation from any insurer that would require any material amount of capital expenditure in respect of the Exal Business in order to remediate. To the Knowledge of Element, no event has occurred, including the failure by Element or its Affiliates to give any notice or information, or Element or its Affiliates giving any inaccurate or erroneous notice or information, which limits or impairs the rights of Element or its Affiliates under any Element Insurance Policy. |
(c) No director or officer, or to the Knowledge of Element, employee of Element or any of its Affiliates, or any member of such Person’s immediate family, (i) owes any significant amounts to, or is owed any significant amounts by the Exal Business, (ii) has any material claim or cause of action against any of the Ardagh Purchased Entities or the Exal |
67
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
Business, or (iii) owns any material property or right, tangible or intangible (including Intellectual Property), that is used or held for use in connection with or that relates to the Exal Business. |
68
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
(g) not amend or make any changes to the accounting policies applicable to any Ardagh Purchased Entity or otherwise relating to the Ardagh Business, unless required by GAAP, IFRS or applicable Law; |
69
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
(l) not make any deferred payments of any accounts payable other than in the ordinary course of business consistent with past practice; |
(m) not give any discount, accommodation or other concession to accelerate or induce the collection of any receivable other than in the ordinary course of business consistent with past practice; |
70
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
(t) other than policies that are replaced or renewed without any gaps in (and without any significant decrease in scope of) coverage, not voluntarily permit any Ardagh Insurance Policy to be canceled or terminated; |
(u) not allow any of the Ardagh Purchased Entities to enter into any line of business that is unrelated to the Ardagh Business; |
(w) not enter into an enforceable agreement, or otherwise agree or commit to do any of the foregoing. |
Nothing contained in this Agreement shall be construed to give to Element, NewCo or any of their respective Affiliates, directly or indirectly, rights to control or direct the operations of the Ardagh Business.
71
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
(g) not amend or make any changes to the accounting policies applicable to any Exal Purchased Entity or otherwise relating to the Exal Business, unless required by GAAP, IFRS or applicable Law; |
72
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
Entity, or permit any Encumbrances to be imposed on any such interests (other than any Encumbrance that will be released on or prior to the Closing); |
(l) not make any deferred payments of any accounts payable other than in the ordinary course of business consistent with past practice; |
(m) not give any discount, accommodation or other concession to accelerate or induce the collection of any receivable other than in the ordinary course of business consistent with past practice; |
73
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
on substantially similar terms or as required as a result of the Transactions or by Law (in each case, only after prior consultation with Ardagh to the extent permitted under applicable Law); |
(q) not transfer to Element or any of its Affiliates (other than any Exal Purchased Entity) the employment of any person employed by an Exal Purchased Entity; |
(u) not allow any of the Exal Purchased Entities to enter into any line of business that is unrelated to the Exal Business; |
(w) not enter into an enforceable agreement, or otherwise agree or commit, to do any of the foregoing. |
Nothing contained in this Agreement shall be construed to give to Ardagh, NewCo or any of their respective Affiliates, directly or indirectly, rights to control or direct the operations of the Exal Business.
74
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
requirements of any Governmental Authority, securities exchange or other regulatory organization with whose rules Ardagh or Element is required to comply, each of Ardagh and Element shall provide to the other and their respective Representatives reasonable access during normal business hours to all books, records, information, documents, personnel, offices, facilities and properties which such Party may reasonably request relating to the Exal Business or the Ardagh Business, as applicable (including, for the avoidance of doubt, maintaining access to such Party’s electronic data room); provided that such access shall only be upon the written request of Ardagh or Element submitted reasonably in advance, shall not unreasonably disrupt personnel, operations and properties of the Exal Business or the Ardagh Business, as applicable, and shall be at the requesting Party’s sole risk and expense. In exercising its rights hereunder, the requesting Party shall conduct itself so as not to interfere unreasonably in the conduct of the Ardagh Business or the Exal Business, as applicable, prior to the Closing. For the avoidance of doubt, each of Ardagh and Element shall assist each other in obtaining any information necessary to obtain a R&W Insurance Policy (or other policy relating to liabilities of the other Party for the period prior to Closing), or facilitate obtaining insurance for NewCo (in each case, if applicable); provided, however, that such access shall not include authorization to take samples of building materials or subsurface samples of soil or groundwater. Each of Ardagh and Element acknowledge and agree that any contact or communication by it and its representatives with officers, employees or agents of the Ardagh Business or the Exal Business, as applicable, hereunder shall be arranged and supervised by representatives of such Party granting access, unless such granting Party otherwise expressly consents in writing with respect to any specific contact. Notwithstanding anything to the contrary set forth in this Agreement, neither Ardagh, Element nor any of their respective Affiliates shall be required to disclose to the other parties or any of their Representatives (i) any information (A) if doing so could violate any contract or Law to which the Party granting access or any of its Affiliates is a party or is subject or which it believes in good faith could result in a loss of the ability to successfully assert a claim of privilege (including attorney-client and work product privileges), (B) if the requesting Party or any of its Affiliates, on the one hand, and the Party from whom access has been requested or any of its Affiliates, on the other hand, are adverse parties in a litigation and such information is reasonably pertinent thereto, or (C) if the Party from whom access has been requested reasonably determines that such information is competitively sensitive (provided that in such case such information shall be made available pursuant to the Parties’ previously established “clean team” procedures, to the extent permissible and necessary for the valuation and assessment of the Ardagh Business or Exal Business (as the case may be)), or (ii) any other information relating to Taxes or Tax Returns other than information relating solely to the Ardagh Business or the Exal Business, as applicable. All information made available hereunder prior to the Closing, shall be subject to the Confidentiality Agreement, and each of Ardagh and Element shall not (and shall cause its respective Affiliates and Representatives not to) use any information obtained pursuant to this Section 5.3 or otherwise under this Agreement for any purpose unrelated to the Transactions. No investigation pursuant to this Section 5.3 shall affect any representation or warranty in this Agreement of either Ardagh, Element or any condition to the obligations of either Ardagh or Element. |
75
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
case of NewCo) or of the retained Ardagh business (in the case of Ardagh) with respect to periods or occurrences prior to or on the Closing Date (including customary period end adjustments made post-Closing to facilitate a hard close trial balance preparation at the Closing Date) as Ardagh or NewCo, as applicable, may reasonably request for its financial reporting and Tax reporting purposes or, in the case of NewCo, for the purposes of assessing, underwriting and otherwise procuring insurance for the combined business of NewCo. Unless otherwise consented to in writing by the applicable Party, for a period of seven (7) years following the Closing Date, or, in the case of Tax related records, the period in which the statute of limitations for any Pre-Closing Tax Period remains unexpired, if longer than seven (7) years, NewCo shall not destroy, alter or otherwise dispose of any books and records of any Ardagh Purchased Entity or Exal Purchased Entity, or any portions thereof, relating to periods prior to the Closing Date without first giving reasonable prior notice to Ardagh or Element, as applicable, and offering to surrender to Ardagh or Element, as applicable, such books and records or such portions thereof. |
76
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
be disclosed to employees, representatives, officers, or directors of the recipient without written consent of the party providing such materials. |
77
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
in connection with NewCo’s efforts to obtain the Debt Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Element or Ardagh), including: (i) participation in meetings, offering memorandum drafting sessions, lender presentations, investor presentations and rating agency presentations and due diligence sessions and reasonably promptly furnishing NewCo and its Debt Financing Sources with the required information regarding the Ardagh Purchased Entities or the Exal Purchased Entities that is required to be delivered to the Debt Financing Sources pursuant to any definitive documentation entered into therewith, and other financial and pertinent information regarding the Ardagh Purchased Entities or the Exal Purchased Entities, as is customary for Debt Financing or may be reasonably required by the lenders, initial purchasers or investors and is customary for similar debt financings; (ii) assisting NewCo and its Debt Financing Sources in the preparation of (A) pro forma financial information and financial statements and other materials, including carve-out financial statements (and related audit and review reports) for any bank financing, bond offering memorandum and similar documents in connection with any of the Debt Financing (including customary (i) lender presentations and confidential information memoranda and customary authorization letters for distribution thereof; and (ii) offering documents for high yield offerings pursuant to Rule 144A and/or Regulation S under the U.S. Securities Act of 1933, as amended (a “Rule 144A/Reg S Offering”)) and (B) materials for rating agency presentations; (iii) facilitating customary due diligence and furnishing, or using reasonable efforts to cause third parties to furnish, to NewCo and the lenders, initial purchasers or investors or their advisers with due diligence materials prepared on behalf of Element and/or Ardagh (and their officers and employees) and other information reasonably required by any lender, initial purchaser or investor or its advisers in connection with their due diligence investigation of the Ardagh Purchased Entities and the Exal Purchased Entities, including the furnishing of customary certificates of officers or directors of Element and/or Ardagh; (iv) using commercially reasonable efforts to (A) obtain from Element’s and/or Ardagh’s auditors such accountants’ customary SAS-72 style comfort letters (with customary negative assurance) in the form and substance customary for a Rule 144A/Reg S Offering and reports as may be required to implement or obtain the Debt Financing, and the consent of such auditors to the use of their reports in any materials relating to the Debt Financing and (B) cause such accountants to cooperate with NewCo in connection with the Debt Financing, including reviewing and commenting on the offering memorandum and participating in drafting sessions; (v) using commercially reasonable efforts to obtain such consents, legal opinions, surveys and title insurance as may be required to implement or obtain the Debt Financing; (vi) facilitating, effective as of the Closing, the pledging of collateral and the repayment or defeasance of any Indebtedness (including obtaining payoff, redemption or similar notices, effective as of the Closing) and the release of related liens and termination of security interests (including obtaining the lien releases contemplated by Section 2.5(c) and Section 2.5(d)); (vii) taking reasonable actions necessary to (A) permit the lenders and prospective lenders involved in the Debt Financing to evaluate the current assets, cash management and accounting systems of the Ardagh Purchased Entities and the Exal Purchased Entities, and the policies and procedures relating thereto for the purposes of establishing collateral arrangements as of the Closing and to assist with other collateral audits and due diligence examinations reasonable and customary for debt financings and (B) establish bank and other accounts and blocked account agreements and lock-box arrangements to the extent necessary in connection with the Debt Financing; (viii) causing NewCo to provide at least three (3) Business Days prior to the anticipated Closing Date all documentation and other information regarding NewCo or its applicable |
78
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
Subsidiaries as is required by applicable “know your customer” and anti-money laundering rules and regulations including the USA PATRIOT Act and requested by the lenders in writing ten (10) Business Days prior to the anticipated Closing Date; (ix) subject to the occurrence of the Closing and in each case effective as of the Closing, executing or causing NewCo to execute, customary definitive financing documents, as may be required to implement or obtain the Debt Financing (including a certificate of the chief financial officer of NewCo with respect to solvency matters); (x) assisting NewCo to obtain waivers, consents, estoppels and approvals from other parties to material leases to which Element and/or Ardagh is a party; and (xi) taking corporate and other actions necessary to permit the consummation of the Debt Financing. In connection with the marketing materials (including confidential information memoranda and lender presentations) and rating agency presentations related to the syndication of the Debt Financing, Element and Ardagh consent to the use of their name, logos, trademarks and service marks in a manner customary for such financing transactions; provided that such logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage Element or Ardagh or the reputation or goodwill of Element or Ardagh and their marks. |
(iii) Element shall cause NewCo and its Subsidiaries (x) to enter into the agreements and other documents required to be entered by NewCo or any of its Subsidiaries in connection with the Debt Financing in form and substance reasonably satisfactory to Ardagh and Element and (y) not to amend or replace any such agreements |
79
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
or documents (or waive any material rights thereunder) without the prior written consent of Ardagh (not to be unreasonably withheld, conditioned or delayed). |
80
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
cause to be paid to NewCo the amount of any such intercompany receivables or loans owing to an Ardagh Purchased Entity and NewCo shall pay or cause to be paid to Ardagh or its Affiliates the amount of any such intercompany receivables or loans owing to Ardagh or its Affiliates (in each case, as reflected in such Final Closing Statement), unless otherwise agreed between Ardagh and Element. |
(i) Upon the request of NewCo or the relevant Ardagh Purchased Entity or Exal Purchased Entity, Ardagh or Element, as applicable, shall (at NewCo’s cost), as promptly as practicable and subject to the reporting and other terms of the applicable policy, assert a claim under the applicable policy, including making all necessary notifications and submitting any reasonably required supporting documentation, and use reasonable best efforts to retain and administer such claim; provided that NewCo shall, and shall cause its relevant Subsidiaries to, provide such assistance, information and cooperation as is reasonably requested by Ardagh or its Representatives or Element or its |
81
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
Representatives, as applicable (including their respective insurers, appointed claims handlers and any lawyers engaged in relation to such claim), in connection therewith; |
(ii) Ardagh or Element, as applicable, shall have no obligation to make any such claim if and to the extent such claim is covered by an insurance policy held by NewCo or its Subsidiaries; |
(iii) NewCo shall notify Ardagh or Element, as applicable, within fifteen (15) Business Days of an officer, director or manager of NewCo becoming aware of the claim; |
(iv) NewCo shall, or shall cause its Subsidiaries to, reimburse Ardagh or Element, as applicable, for any deductible under the Ardagh Insurance Policy or Element Insurance Policy, as applicable, payable in respect of the claim; |
(v) NewCo shall reimburse Ardagh or Element, as applicable, for any premium increases under the insurance policy under which the claim is made, where such increases are reasonably demonstrated by Ardagh (with respect to its insurance policy) or Element (with respect to its insurance policy) to be a direct result of any claim made pursuant to this Section 5.9(c); and |
(vi) Ardagh or Element, as applicable, shall promptly pay to NewCo (or its designated Subsidiary) any proceeds actually received under the Ardagh Insurance Policy or Element Insurance Policy, as applicable (less any deductible or excess paid by Ardagh or any of its Affiliates or Element or any of its Affiliates (other than NewCo and its Subsidiaries), as applicable, in respect of such claim, and less any Tax incurred or withheld on the proceeds thereof and any reasonable out of pocket expenses actually incurred by Ardagh or any of its Affiliates or Element or any of its Affiliates (other than NewCo and its Subsidiaries), as applicable. |
(vii) The Parties acknowledge and agree that the provisions of this Section 5.9(c) shall terminate on the sixth (6th) anniversary of the Closing Date. |
(d) Filing Claims. In the event that NewCo requests that Ardagh or Element, as applicable, make a claim pursuant to Section 5.9: |
(i) Ardagh or Element, as applicable, shall not be required to undertake or threaten litigation without NewCo having advanced to Ardagh or Element, as applicable, the funds reasonably estimated to be incurred in connection therewith; and |
(ii) neither NewCo nor any of its Subsidiaries shall be entitled to any proceeds received by Ardagh or its Affiliates or Element or its Affiliates under any Ardagh Insurance Policy or Element Insurance Policy, as applicable, except to the extent that such proceeds relate to a claim covered under this Section 5.9 and are in respect of Losses for which NewCo or the relevant Subsidiary of NewCo has not already been reimbursed, indemnified or otherwise compensated in full by Ardagh or Element, as applicable, whether under this Agreement or otherwise; |
82
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
(iii) NewCo shall, and shall cause the relevant Subsidiary of NewCo to, provide all assistance, information and cooperation reasonably requested by Ardagh or its Representatives or Element or its Representatives, as applicable (including its insurers, appointed claims handlers or any lawyers instructed in relation to such claim); and |
(iv) NewCo shall, and shall cause the relevant Subsidiary of NewCo to, pay or bear any deductible or excess element of any such claim. |
83
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
letterheads, advertisements and promotional materials, inventory and other documents and materials included in the Ardagh Business (the “Ardagh Existing Stock”) that contain the “Ardagh” name or the other names, marks or identifiers set forth on Section 5.10 of the Ardagh Disclosure Schedule (collectively, the “Ardagh Marks”), after which period NewCo shall, and shall cause its applicable Subsidiaries to, remove, obliterate or cover the Ardagh Marks from such Ardagh Existing Stock or cease using such Ardagh Existing Stock. |
84
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
Element, as applicable, shall cooperate and use commercially reasonable efforts after the Closing to relieve, remove, release and/or replace Ardagh and its Affiliates (other than the Ardagh Purchased Entities) and Element and its Affiliates (other than the Exal Purchased Entities) from any remaining Transferred Guarantees. For the avoidance of doubt, the Transferred Guarantees with respect to the Ardagh Business shall include (i) any joint and several liability statements issued by Ardagh or any of its Affiliates (other than an Ardagh Purchased Entity) in respect of any Ardagh Purchased Entity pursuant to Section 2:403 of the Dutch Civil Code or Section 264 (3) of the German Commercial Code, (ii) the guarantee issued by Ardagh MP Group Netherlands B.V. in relation to the Ardagh UK Impress Plan section of the Ardagh UK Plan and (iii) any statutory guarantee or statutory Liability of Ardagh or any of its Affiliates (other than an Ardagh Purchased Entity) in respect of Ardagh Metal Packaging Italy S.r.l, therewith including those pursuant to articles 2112, 2506 bis and 2506 quater, of the Italian civil code. |
85
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
(ii) In the period between the date of this Agreement and the Closing Date, Ardagh shall cause the shareholders and managing directors of AGG and AGMP to take all steps required for the registration of the termination of the PLTA with the German Commercial Register, including a shareholders resolution of AGG approving the termination notice delivered pursuant to Section 5.12(a)(i). If, by the Closing Date, the termination of the PLTA has not been registered with the German Commercial Register, NewCo undertakes to use commercially reasonable efforts to cause the managing directors of AGMP to take all steps following the Closing Date required to register the termination of the PLTA with the German Commercial Register. |
(v) The Parties acknowledge that: |
(B) the amount of the Loss Compensation Receivable or of the Profit Transfer Payables, as the case may be, shall be determined on the basis of the PLTA Termination Accounts. |
(vi) For purposes of Section 2.2, Section 2.4 and Section 2.9 and the related determinations therein, any Loss Compensation Receivables shall be included as Closing Cash and any Profit Transfer Payables shall be included as Closing Indebtedness, irrespective of when the actual due date for payment, or actual payment, of such amounts occur. |
86
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
(ix) The Loss Compensation Receivable or Profit Transfer Payable will be reflected in the Initial Ardagh Closing Statement and Final Ardagh Closing Statement as determined in the Closing Statement Methodologies set forth on Exhibit A. For the avoidance of doubt, and notwithstanding Section 5.12(a)(iii), Section 5.12(a)(vii) and Section 5.12(a)(viii), this mechanism will be the sole satisfaction and settlement of the Loss Compensation Receivable or Profit Transfer Payable as may arise. |
87
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
ensure the recognition of a fiscal unity, require amendment, NewCo undertakes to procure that AGMP or AMPG, as the case may be, shall immediately make such amendments in accordance with applicable Tax Law, including any consequential amendments required to be made to any other financial statements or Tax Return or other declarations resulting from such amendments (the “Relevant PLTA Amendments”). |
(C) for each Relevant Fiscal Year that requires an amendment of the financial statements of AMPG that results either in an increase or decrease of profits or, as the case may be, an increase or decrease of losses of AMPG in any Relevant Fiscal Year (in each case as compared with the profits and losses paid or settled under the Initial Settlement), NewCo shall procure that the respective PLTA Difference shall be settled between AGMP and AMPG within ten (10) Business Days after such PLTA Difference is determined. |
(iv) The Parties acknowledge and agree that: |
(A) an amount equal to each payment (if any) to be made by AGG to AGMP pursuant to Section 5.12(b)(iii)(A) shall be paid by NewCo to Ardagh; and |
88
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
(B) an amount equal to each payment (if any) to be made by AGMP to AGG pursuant to Section 5.12(b)(iii)(B) shall be paid by Ardagh to NewCo, |
in each case, at the same time, or immediately upon, the relevant payment being made pursuant to Section 5.12(b)(iii)(A) or Section 5.12(b)(iii)(B), as applicable.
(ii) The indemnification obligations of NewCo pursuant to Section 5.12(c)(i) shall terminate and cease to have any force and effect with respect to any Tax or decrease of current Tax losses or Tax loss carry forwards on the date that is nine (9) months following the date that such Tax or, in respect of the decrease of current Tax losses or Tax loss carry forwards, the decision of the Tax Authorities became final, binding and non-appealable. |
89
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
90
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
implement arrangements reasonably acceptable to both Parties to both (i) provide NewCo and its Subsidiaries, to the fullest extent practicable, with all claims, rights and benefits under the Ardagh Hedging Arrangements, including, for the avoidance of doubt, the mark-to-market position existing on the Closing Date and (ii) cause NewCo and its Subsidiaries to bear all Liabilities thereunder, including, for the avoidance of doubt, the mark-to-market position existing on the Closing Date. Upon maturity of any Ardagh Hedging Arrangements (or earlier crystallization of a hedge position upon NewCo’s instructions), (i) Ardagh shall remit funds to NewCo in respect of any such hedging arrangements that are in-the-money and (ii) NewCo will remit funds to Ardagh in respect of any that are out-of-the money, in each case, on the relevant date of settlement in accordance with market convention. |
91
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
(i) disclosing to Ardagh, [*] all information in the possession, custody or control (in any form or medium, including documents) of NewCo or its Subsidiaries with respect to the activities of the Ardagh Purchased Entities [*]; |
(ii) producing to Ardagh, the European Commission or any other relevant Governmental Authority all documents, records or other tangible evidence in the possession, custody or control of NewCo or its Subsidiaries relating to the Regulatory Investigations. [*]; |
(iii) providing Ardagh with access to copies of original documents and records relating to the Regulatory Investigations in the possession, custody or control of NewCo or its Subsidiaries [*]; |
(iv) [*] and |
(v) providing such information (including testimony) as is reasonably necessary to identify or establish the original location, authenticity or other evidentiary foundation necessary to admit into evidence documents in any proceeding as requested by Ardagh related to the Regulatory Investigations. |
(f) NewCo and Ardagh shall promptly inform and disclose to the other any developments or communications between such Party or any of its Subsidiaries, on the one hand, and any Governmental Authority or third party, on the other hand, with respect to the Regulatory Investigations, except as prohibited by Law. NewCo shall not engage in any negotiations with any Governmental Authority or third party with respect to the Regulatory Investigations without the express prior written consent of Ardagh. [*]. |
92
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
(k) Procedures for Indemnification of Third Party Claims. |
(iii) [*] |
(iv) Unless Ardagh has failed to assume the defense of the Third Party Claim for which indemnification is available under this Section 5.15 in accordance with the terms of this Agreement, no Indemnified Party may settle or compromise such Third Party Claim without the consent of Ardagh. |
93
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
(v) Ardagh shall not consent to entry of any judgment or enter into any settlement of the Third Party Claim without the prior written consent of an Indemnified Party if the effect thereof[*]. |
(m) Mitigation of Damages. Each of Element and NewCo agrees to attempt to mitigate, and to cause each of their respective Affiliates to attempt to mitigate, any Losses that such party may suffer as a consequence of any matter giving rise to a right to indemnification under this Section 5.15. |
94
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
95
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
Purchased Entity, including, for the avoidance of doubt, those Contracts set forth on Section 5.18(a)(ii) of the Ardagh Disclosure Schedule. |
(i) Ardagh shall, and shall cause its Affiliates to, without further consideration therefor, pay and remit to NewCo promptly all monies, rights and other consideration received, net of any reasonable documented out-of-pocket costs payable to a third party, in respect of such performance. From and after the Closing, Ardagh on behalf of itself and its Affiliates, authorizes NewCo and its Subsidiaries, to the maximum extent permitted by applicable Law and the terms of the Delayed Transfer Asset, at NewCo’s expense, to perform all the obligations and receive all the benefits of Ardagh or its Affiliates under the Delayed Transfer Asset. |
(ii) NewCo shall, and shall cause its Affiliates to, without further consideration therefor, pay and remit to Ardagh promptly all monies, rights and other consideration received, net of any reasonable documented out-of-pocket costs payable to a third party, in respect of such performance. From and after the Closing, NewCo on behalf of itself and its Affiliates, authorizes Ardagh and its Affiliates, to the maximum extent permitted by applicable Law and the terms of the Delayed Transfer Asset, at Ardagh’s expense, to perform all the obligations and receive all the benefits of NewCo or its Affiliates under the Delayed Transfer Asset. |
96
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
97
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
(i) As of the Closing, NewCo shall, or shall cause a Subsidiary to, assume or continue, as the case may be, sponsorship of, and all obligations with respect to, each Ardagh Transferred Plan and honor and discharge all obligations under such Ardagh Transferred Plan. |
98
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
forth on Section 4.15(a) of the Element Disclosure Schedules under the header “Element Parent Plans”. |
(iv) Neither NewCo nor any of its Affiliates, including the Exal Purchased Entities, shall (A) assume sponsorship of, or subject to the Mutual Services Agreement, or any costs or Liabilities under any of the Element Parent Plans, or (B) receive any right or interest in any trusts relating to, any assets of or any insurance, administration or other contracts pertaining to any of the Element Parent Plans. Except as otherwise specifically provided in this Agreement or the Mutual Services Agreement, effective as of the Closing Date, all Element Business Employees shall cease any benefit accrual under all Element Parent Plans and all Exal Purchased Entities shall cease being participating employers under all Element Parent Plans. |
(c) [*]. |
99
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
Closing occurs starting on January 1 of such calendar year and ending on the day prior to the Closing Date. All Liabilities related to the Excluded Compensation Payments shall be borne exclusively by Element and its Affiliates (including through the adjustments contemplated by Section 2.2 and Section 2.9 in accordance with the Closing Statement Methodologies), and Ardagh and its Affiliates shall not have any Liability with respect to the Excluded Compensation Payments (whether by virtue of Ardagh’s position as a voting shareholder of NewCo or otherwise). Upon request by Ardagh, NewCo shall provide a schedule of any or all Excluded Compensation Payments and a summary of the calculation method for the payment amounts on such schedule. |
(ii) NewCo shall not assume the Element Parent Plans or have any obligations, nor make any payments, with respect thereto. |
(iv) NewCo shall, or shall cause a Subsidiary to, assume or continue, as the case may be, sponsorship of, and all obligations with respect to, and honor and discharge all obligations with respect to any [*] to any current or former Ardagh Business Employee, in each case as a result of the execution and delivery of this Agreement or the consummation of the Transactions (including [*]) alone or in conjunction with any other event (including post-Closing service); provided that, all Liabilities related to such payments shall be borne exclusively by Ardagh and its Affiliates and that, upon request by Element, NewCo shall provide a schedule of any or all such payments and a summary of the calculation method for the payment amounts on such schedule. |
100
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
Impress Plan into another appropriate arrangement (the “NewCo UK DB Plan”) separate from the Ardagh UK Plan. |
101
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
102
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
Plan or other Plan (that is not an Ardagh Transferred Plan) that is sponsored or maintained by Ardagh or any of its Affiliates or with respect to which Ardagh or any of its Affiliates may have any Liability (whether contingent or otherwise) that, in each case, is incurred with respect to any Person other than an Ardagh Business Employee, and in each case that is assessed against NewCo or any of its Affiliates. From and after the Closing, NewCo shall indemnify, defend and hold harmless Ardagh and its Affiliates from and against any Liability assumed or continued by NewCo or its Subsidiaries pursuant to Section 6.2. |
(d) From and after the Closing, Element shall indemnify, defend and hold harmless NewCo and its Affiliates from and against any Liability relating to any Element Parent Plan or other Plan (that is not an Element Plan) that is sponsored or maintained by Element or any of its Affiliates or with respect to which Element or any of its controlled Affiliates may have any Liability (whether contingent or otherwise) that, in each case, is incurred with respect to any Person other than an Exal Business Employee, and in each case that is assessed against NewCo or any of its controlled Affiliates. From and after the Closing, NewCo shall indemnify, defend and hold harmless Element and its Affiliates from and against any Liability assumed or continued by NewCo or its Subsidiaries pursuant to Section 6.2. |
103
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
Transferred Business Employee and any covered dependent for any co-payments and deductibles and use commercially reasonable efforts to credit out-of-pocket expenses paid by such Transferred Business Employee or any covered dependent under the corresponding Ardagh Transferred Plan, Ardagh Retained Plan or Element Plan during the relevant plan year, up to and including the Closing Date and (iii) credit each Transferred Business Employee with all vacation and personal holiday time that such Transferred Business Employee has accrued but had not used as of the Closing. |
104
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
(d) Acceptance of the French and Dutch Offers. The French Acceptance Notice and the Dutch Acceptance Notice shall have been delivered to NewCo as set forth in Section 2.8. |
(c) Closing Deliverables. Ardagh shall have received each of the deliverables, documents and instruments required to be delivered to it pursuant to Sections 2.5(d), 2.6(b) and 2.6(c). |
105
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
relate to an earlier date, in which case such representations and warranties shall be true and correct as of such earlier date), (ii) the representation and warranty set forth in Section 3.7(a) shall be true and correct in all respects as of the Closing Date as though made on and as of such date and (iii) the representations and warranties of Ardagh set forth in this Agreement (other than the Ardagh Fundamental Representations and the representation and warranty set forth in Section 3.7(a)) shall be true and correct as of the Closing Date as though made as of such date (except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct as of such earlier date), except where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to materiality or “Material Adverse Effect” or similar qualifications set forth therein) individually or in the aggregate has not had, and would not reasonably be expected to have, a Material Adverse Effect. |
(c) Closing Deliverables. Element shall have received each of the deliverables, documents and instruments required to be delivered to it pursuant to Sections 2.5(c), 2.6(a) and 2.6(c). |
106
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
and all rights, claims and causes of action it may have against any Party or its Affiliates (or any of their respective their respective current and former directors, officers, members, managers, partners, employees, advisors, consultants, agents or other representatives), or any of their respective successors or permitted assigns, relating to the breach of any representation or warranty in this Agreement or in any document, agreement, certificate or instrument delivered pursuant to this Agreement, or of any covenant or agreement to be performed prior to the Closing, other than the covenants contained in Section 5.1 and Section 5.2 or any covenant and agreement that contemplates performance after the Closing (including, for the avoidance of doubt, the rights to indemnification set forth in Section 5.7(b)(i), Section 5.9(e), Section 5.11, Section 5.15 and Section 6.3), whether for breach of contract, in tort, or pursuant to any other theory of liability or under, or based upon, any applicable Law or otherwise (including any right, whether arising at law or in equity, to seek indemnification, contribution, cost recovery, damages or any other recourse or remedy, including as may arise under common law) are hereby irrevocably waived. |
107
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
108
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
Ardagh Group S.A.
56, rue Charles Martel
L-2134 Luxembourg, Luxembourg
[*]
With a copy (which shall not constitute notice) to:
109
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
Shearman & Sterling, LLP
599 Lexington Avenue
New York, NY 10022-6069
[*]
c/o Ontario Teachers’ Pension Plan Board
5656 Yonge Street
Toronto, Ontario, Canada M2M 4H5
[*]
With a copy (which shall not constitute notice) to:
767 Fifth Avenue
New York, NY 10153
[*]
Trivium Packaging B.V.
Atrium Building, 8th Floor
Strawinskylaan 3127
1077 ZX, Amsterdam, the Netherlands
With a copy (which shall not constitute notice) to Ardagh and Element at the addresses set forth above.
10.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to conflicts of laws principles. |
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the jurisdiction of any Agreed Court, that its property is exempt or immune from attachment or execution, that the Action is brought in an inconvenient forum, that the venue of the Action is improper, or that this Agreement or the Transactions may not be enforced in or by any of the above named courts. In any such Action, the Parties irrevocably consent to service of process in the manner provided for notices in Section 10.2, or in any other manner permitted by applicable Law. The Parties further agree that, to the extent permitted by Law, that any final and unappealable judgment against a Party in any such Action shall be conclusive and may be enforced in any other jurisdiction within or outside the United States by suit on the judgment, a certified or exemplified copy of which shall be conclusive evidence of the fact and amount of such judgment. |
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(g) To the extent permitted by Law, the Parties waive any right to appeal points of law provided under Sections 46 or 69 of the English Arbitration Act of 1996. |
(h) The International Bar Association Rules on the Taking of Evidence in International Arbitration (2010) shall apply. |
(l) Each Party participating in such arbitration shall pay its own legal fees and expenses incurred in connection with the arbitration, unless otherwise determined by the arbitral tribunal. |
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validly be made. Judgment upon the award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant Party or its assets. |
(o) Any monetary damages awarded shall be payable in U.S. Dollars unless otherwise agreed by the parties thereto. |
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10.11 Amendment. This Agreement may be amended, supplemented, modified or restated only by a written agreement executed by each of the Parties. |
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IN WITNESS WHEREOF, the undersigned have executed this Agreement on the date first written above.
ARDAGH GROUP S.A.
By: /s/ W.O.H. Fry
Name: W.O.H. Fry
Title: Director
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
ELEMENT HOLDINGS II, L.P.
By: Element General Partner, Ltd.,
its general partner
By: /s/ Russell Hammond
Name: Russell Hammond
Title: Director
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
TRIVIUM PACKAGING B.V.
duly represented by its sole director,
Element Netherlands Holding Coöperatief U.A.
By: /s/ Michael Mapes
Name: Michael Mapes
Title: Director
By: /s/ S. Haver
Name: S. Haver
Title: Director
[*] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.