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EXHIBIT NO. 99.2: TERMINATION AGREEMENT OF THE NEW FRENCH EXCHANGE OFFER
AGREEMENT DATED APRIL 12, 2000
THIS AGREEMENT IS MADE ON 12 APRIL 2000
AMONG ALCAN ALUMINIUM LIMITED, a company incorporated under the laws of
Canada ("Alcan"),
PECHINEY, a company incorporated under the laws of France, and
ALUSUISSE LONZA GROUP AG, a company incorporated under the laws of
Switzerland ("Algroup")
WHEREAS:
(A) Alcan, Pechiney and Algroup entered into a Combination Agreement on
15 September 1999 (the "Combination Agreement") to effect the combination
of their respective businesses (the "Combination") by way of two separate
and non-interconnected Share Exchange Offers made by Alcan to each of
Pechiney and Algroup.
(B) The Combination Agreement provides that a condition to be satisfied or
waived prior to the making of the French Exchange Offer (as defined in the
Combination Agreement) is that the European Commission (the "EC") shall
have adopted a decision clearing the same;
(C) Based on the Parties' understanding that the EC would not adopt such a
decision and in order to permit them to find a way forward to effect the
combination, the Parties by agreement dated 14 March 2000 terminated the
Combination Agreement in relation to Pechiney (the "Termination
Agreement");
(D) Further to the foregoing, the Parties immediately entered into a new
agreement dated 14 March 2000 for the purposes of setting out the terms on
which the French Exchange Offer could be made (the "New French Exchange
Offer Agreement");
(E) By virtue of clause 1.2 of the New French Exchange Offer Agreement, the
Parties agreed to seek to identify a form of undertakings to the EC which
were to be mutually acceptable to each of them and to the EC;
(F) It has become apparent to the Parties that, notwithstanding their efforts,
they will be unable to agree to undertakings which meet or which are likely
to meet the requirements of clause 1.2 of the New French Exchange Offer
Agreement; and
(G) The Parties have decided that the French Exchange Offer shall not be made.
NOW, THEREFORE, in consideration of the agreements herein contained, the Parties
hereto, duly authorized by their respective boards of directors, agree as
follows:
ARTICLE 1 -- TERMINATION OF OBLIGATIONS
1.1 Alcan, Pechiney and Algroup agree that, subject to clause 1.2, the New
French Exchange Offer Agreement is hereby terminated in all respects
without ongoing rights, obligations or surviving provisions (whether
included in the text of the New French Exchange Offer Agreement or
included in the New French Exchange Offer Agreement by reason of clause
1.1 thereof), and that accordingly:
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(a) all obligations of whatever nature owed by Alcan to Pechiney or by
Pechiney to Alcan relating in any way to the New French Exchange Offer
Agreement or the Combination, whether written or not and including in
particular and without limitation to the above any obligation to make,
support, facilitate or recommend the acceptance of the French Exchange
Offer, are hereby terminated with the result that neither Alcan nor
Pechiney shall have any liability to the other relating in any way to
the Combination; and
(b) all obligations of whatever nature owed by Algroup to Pechiney or by
Pechiney to Algroup relating in any way to the New French Exchange
Offer Agreement or the Combination, whether written or not, are hereby
terminated with the result that neither Algroup nor Pechiney shall
have any liability to the other relating in any way to the
Combination.
1.2 Notwithstanding the above, the Parties agree that the Confidentiality
Agreement dated 21 June 1999 (the "Confidentiality Agreement") shall
continue to apply to the Parties according to its terms. It is agreed that
information disclosed to regulatory authorities in connection with the
Combination and information contained in documents made public or intended
to be made public in connection with the Combination is not subject to the
destruction requirements of the Confidentiality Agreement. Information made
public in documents issued to date by any of the Parties in connection with
the Combination is not to be considered to be "Proprietary Information"
under the Confidentiality Agreement.
1.3 As between Alcan and Algroup only and for the avoidance of doubt, (a) the
Combination Agreement shall continue as an agreement between Alcan and
Algroup in accordance with clause 8.6.1 thereof, and (b) all obligations of
whatever nature owed by Alcan to Algroup or by Algroup to Alcan relating in
any way to the New French Exchange Offer Agreement or the Combination,
whether written or not and including in particular and without limitation
any obligation to make, support or facilitate the French Exchange Offer,
are hereby terminated with the result that neither Alcan nor Algroup shall
have any liability to the other relating in any way to the French Exchange
Offer. Accordingly, the rights and obligations of Alcan and Algroup with
respect to each other under the Combination Agreement, including in
particular and without limitation to the above with respect to the Swiss
Exchange Offer (as defined in the Combination Agreement), remain in full
force and effect.
1.4 The Parties agree that the announcement of the decision not to proceed with
the Combination will be effected by means of a press release in the form
attached hereto and further agree that they will act reasonably to
co-ordinate their other announcements and public statements in relation
thereto.
ARTICLE 2 -- GENERAL
2.1 INTERPRETATION. Except where the context otherwise requires and save as
otherwise defined or specified herein, words and expressions used in this
Agreement and which are defined in the New French Exchange Offer Agreement
shall have the same meaning in this Agreement as in the New French Exchange
Offer Agreement.
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2.2 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of England without regard to its conflict of laws
principles.
2.3 SETTLEMENT OF DISPUTES. Any dispute arising out of or in connection with
this Agreement shall be subject to the jurisdiction of the English courts,
to which each Party hereby submits for such purpose, and each will, if
necessary, appoint an agent for service of process in England.
2.4 EXPENSES. Each of the Parties shall pay its legal, financial advisory and
accounting costs and expenses incurred in connection with the preparation,
execution and delivery of the Confidentiality Agreement, the Combination
Agreement, the Termination Agreement, the New French Exchange Offer
Agreement and this Agreement and all documents and instruments executed,
prepared or filed pursuant thereto or any other costs and expenses
whatsoever and howsoever incurred.
2.5 COUNTERPARTS. This Agreement may be executed in one or more counterparts
which together shall be deemed to constitute one valid and binding
agreement and delivery of the counterparts may be effected by means of a
telecopied message.
2.6 AMENDMENTS. This Agreement may not be modified, amended altered or
supplemented except upon the execution and delivery of a written agreement
executed by all of the Parties hereto.
2.7 ENTIRE AGREEMENT. This Agreement and the documents to which it refers
constitute the entire agreement and understanding among the Parties hereto
with respect to the subject matter hereof
IN WITNESS WHEREOF, the undersigned have each executed and delivered this
agreement as of the date first above written.
ALCAN ALUMINIUM LIMITED
By /s/ Jacques Bougie
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Jacques Bougie
PECHINEY
By /s/ Jean-Pierre Rodier
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Jean-Pierre Rodier
ALUSUISSE LONZA GROUP AG
By /s/ Sergio Marchionne
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Sergio Marchionne
By /s/ P. Kalantzis
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P. Kalantzis
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