NYDOCS02/473857 4
SHARE PURCHASE AGREEMENT, dated as of July 27, 1999
between RHI HOLDINGS, INC., a Deleware corporation ("RHI"),
JEFFREY J STEINER (together with RHI, the "Sellers"), and
AMERICAN NATIONAL CAN GROUP, INC., a Delaware corporation (the
"Buyer").
WITNESSETH:
WHEREAS, RHI owns 53,055,000 shares of Nacanco
Paketleme Sanayi ve Ticaret A.S. ("Nacanco") and Jeffrey J
Steiner owns 5,220,000 shares of Nacanco (together with the
shares held by RHI, the "Sale Shares") and each Seller has the
right to sell or procure the sale of its Sale Shares free from
all liens, charges and encumbrances.
WHEREAS, the Sellers have agreed with the Buyer to sell
to the Buyer or to its nominees the Sale Shares on the terms and
subject to the conditions of this Agreement.
NOW THEREFORE, in consideration of the premises and the
mutual agreements and covenants hereinafter set forth, the
Sellers and the Buyer hereby agree as follows:
1. SALE AND PURCHASE OF SALE SHARES
Upon the terms and subject to the conditions of this
Agreement, as at the Closing Date (as defined below), the
Sellers shall sell or procure the sale of the Sale Shares
and the Buyer or its nominees shall purchase for the
Purchase Price (as defined below) all of the Sale Shares
free from all liens, charges and encumbrances
("Encumbrances") and with all rights attached thereto.
2. PURCHASE PRICE
The aggregate purchase price for the Sale Shares shall be
$53,000,000 (the "Purchase Price") allocated between the
Sellers in proportion to the number of Sale Shares held by
each Seller (as set forth under each Seller's name on the
signature page hereof), and payable in the manner provided
by Clause 4.2.2 below.
3. FURTHER OBLIGATIONS
As soon as practicable, and in any event within five days
hereof, the Sellers will:
3.1 file with the Tuzla Court of First Instance a Stipulation of
Withdrawal in form reasonably satisfactory to the Buyer,
duly executed by counsel to Jeffrey J Steiner, agreeing to
withdraw the legal action referenced therein;
3.2 file with the International Chamber of Commerce a letter in
form reasonably satisfactory to the Buyer, signed by counsel
to RHI and Jeffrey J Steiner, seeking to withdraw the
arbitration proceedings referenced therein;
3.3 file with the Supreme Court of the State of New York a
Stipulation of Discontinuance in form reasonably
satisfactory to the Buyer, duly executed by counsel to RHI
and Jeffrey J Steiner, agreeing to withdraw the legal action
referenced therein;
3.4 deliver to the Buyer or relevant third party such documents
as may be necessary to terminate any other legal actions
pending or instigated against the Buyer or any of its
affiliates by the Sellers in connection with Nacanco; and
3.5 deliver to the Buyer a resolution of the board of directors
of Nacanco, in form reasonably satisfactory to the Buyer,
duly signed by Jeffrey J Steiner and Eric Steiner, approving
the transfer by Pechiney of its 108,220,158 shares of
Nacanco to the Buyer.
4. CLOSING
The Closing of the sale and purchase of the Sale Shares
contemplated by this Agreement shall take place at 10.00
a.m. on July 28, 1999 (or at such later date as may be
agreed between the Sellers and the Buyer) (the "Closing
Date") at the offices of Shearman & Sterling, 599 Lexington
Avenue, New York, New York.
When:
4.1 the Sellers will each deliver to the Buyer:
4.1.1 a document effecting transfer of title in the Sale
Shares it holds, duly executed by the Seller in favor
of the Buyer (or as it in writing directs) and such
letters of direction, waivers, consents or other
documents as may be required to give good legal and
beneficial title to the Sale Shares and to enable the
Buyer or its nominees to become registered holders
thereof free and clear of all Encumbrances, together
with, if relevant, any share certificate(s) duly
endorsed in favor of the Buyer or its nominees; and
4.1.2 a Release in the form set out in Exhibit A hereto
(the "Release"), duly executed by each of the Sellers,
releasing and discharging Pechiney and the Buyer, among
others, from all claims and demands.
4.2 the Buyer shall:
4.2.1 deliver to the Sellers the Release, duly executed
by Pechiney and the Buyer, releasing and discharging
the Sellers, among others, from all claims and demands;
and
4.2.2 effect payment to the Sellers of the Purchase
Price by wire transfer in immediately available funds
to accounts of the Sellers previously designated for
the purpose, in the allocation set out in Clause 2
above.
5. RENUNCIATION
The Sellers agree to renounce any intention to use in any
way the order of the President of the Court of Grand
Instance issued in Paris, France on July 26, 1999 against
Pechiney (the "Order"), or to obtain any benefit from the
Order. If requested by Pechiney or the Buyer, the Sellers
further agree to cooperate with Pechiney to obtain the
withdrawal of the Order, including signature of such forms
as may be reasonably necessary to obtain that result.
6. REPRESENTATIONS AND WARRANTIES
6.1 Each Seller hereby represents and warrants to the Buyer as
follows:
6.1.1 it owns of record and beneficially, and has good
and marketable title to, free and clear of all
Encumbrances, the Sale Shares stated to be owned by it
in the recitals hereto, which Sale Shares constitute
all of its interests in the shares or capital of
Nacanco, and upon consummation of the transactions
contemplated by this Agreement, the Buyer will acquire
valid title to the Sale Shares, free and clear of all
Encumbrances;
6.1.2 the execution, delivery and performance of this
Agreement by the Seller do not and will not result in
any material breach of, constitute a default (or event
which with the giving of notice or lapse of time, or
both, would become a default) under, or give to others
any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of any
Encumbrance on any of the Sale Shares owned by the
Seller pursuant to, any note, bond, mortgage or
indenture, contract, agreement, lease or sublease to
which the Seller is a party or by which any of the Sale
Shares owned by the Seller is bound or affected; and
6.1.3 it has all necessary power and authority to enter
into this Agreement, to carry out its obligations
hereunder and to consummate the transactions
contemplated hereby, and this Agreement has been duly
executed and delivered by it and (assuming due
authorization, execution and delivery by the other
parties hereto) constitutes a legal, valid and binding
obligation of the Seller enforceable against it or him
in accordance with its terms.
6.2 The Buyer hereby represents and warrants to the Seller that
it has all necessary corporate power and authority to enter
into this Agreement, to carry out its obligations hereunder
and to consummate the transactions contemplated hereby, and
that the Agreement has been duly executed and delivered by
it and (assuming due authorization, execution and delivery
by the Sellers) constitutes a legal, valid and binding
obligation of the Buyer enforceable against it in accordance
with its terms.
7. CONSULTANCY ARRANGEMENTS
For a period of three years from the Closing (the
"Consulting Term"), the Buyer hereby agrees to engage the
Sellers to perform consulting services with respect to the
business and operations of Nacanco in accordance with the
reasonable requests of the Buyer, and in the performance of
such services the Sellers agree to use reasonable efforts to
promote the business and interests of Nacanco. As
compensation for the consulting services to be performed by
the Sellers, the Buyer shall pay the Sellers a quarterly fee
of $400,000, payable on the last day of each of the twelve
quarters during the Consulting Term, commencing on September
30, 1999, by wire transfer to an account previously
designated in writing by the Sellers (for a total payment of
$4,800,000).
8. FURTHER ACTION
The parties hereto will after as well as before and upon the
Closing Date do all acts and things and sign and execute all
documents and deeds reasonably required for the purposes of
implementing the terms hereof.
9. AMENDMENT
This Agreement may not be amended or modified except by an
instrument in writing signed by each of the Sellers and the
Buyer.
10. SPECIFIC PERFORMANCE
The parties hereto agree that irreparable damage would occur
in the event any provision of this Agreement was not
performed in accordance with the terms hereof and that the
parties shall be entitled to specific performance of the
terms hereof.
11. GOVERNING LAW
This Agreement shall be governed by the laws of the State of
New York. All actions and proceedings arising out of or
relating to this Agreement shall be heard and determined in
any New York state or federal court sitting in The City of
New York, and the parties hereto hereby consent to the
exclusive jurisdiction of such courts in any such action or
proceeding.
12. COUNTERPARTS
This Agreement may be executed in one or more counterparts,
and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to
be an original but all of which taken together shall
constitute one and the same agreement.
13. PUBLICITY
Each party agrees not to issue any press releases or
otherwise publicly disclose the matters covered by this
Agreement and the Releases without the prior consent of the
other parties, which consent shall not be unreasonably
withheld; provided, however, that nothing in this Clause 13
shall restrict the disclosure of this Agreement or the
transactions contemplated thereby required in the
Registration Statement on Form S-1 to be filed with the
Securities and Exchange Commission (the "Commission") by the
Buyer in connection with its initial public offering, or in
subsequent filings with the Commission if so required.
14. WAIVER OF JURY TRIAL
EACH OF THE SELLERS AND THE BUYER HEREBY EXPRESSLY
IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT
OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE ACTIONS OF THE SELLERS OR THE BUYER IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT
THEREOF.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, as of the day and year first above
written, by, in the case of RHI and the Buyer, their respectively
authorized signatories thereunto duly authorized.
RHI HOLDINGS, INC.
By:
Name: Donald E. Miller
Title: Vice President
Proportion of Sale Shares:
91 %
JEFFREY J STEINER
Proportion of Sale Shares: 9 %
AMERICAN NATIONAL CAN GROUP, INC.
By:
Name: Edward A. Lapekas
Title: President
EXHIBIT A
RELEASE