Exhibit 2.2
Amendment Agreement
AMENDMENT AGREEMENT
to the
SHARE SALE AND TRANSFER AGREEMENT
between
Schmalbach-Lubeca Holding GmbH
AV Packaging GmbH
Ball Pan-European Holdings, Inc.
Ball Corporation
and
Ball (Germany) Acquisition GmbH
dated December 18, 2002
UR. Nr. H 3819 / 2002
NOTARIAL DEED
negotiated at Dusseldorf this 18 (eighteenth) of December 2002 (two thousand and
two).
Before me, the undersigned Notary Public
Dr. Armin Hauschild
at Dusseldorf today appeared:
1. Dr. Harald Selzner, born June 5, 1964, attorney-at-law, German
citizen, with business address at Breite Stra(beta)e 69, 40213
Dusseldorf and with private domicile at An den Buchen 5, 40629
Dusseldorf, known by person,
here not acting in his own name but as representative in the name and
on behalf of
Schmalbach-Lubeca Holding GmbH, a German limited liability
company with business address at Breite Stra(beta)e 69, 40213
Dusseldorf, Germany,
- hereinafter referred to as "Seller" -
by virtue of certified power of attorney dated August 21/23, 2002 the
original of which was presented to the Notary Public and a certified
copy of which is attached to this Notarial Deed;
2. Dr. Marco Sustmann, born June 23, 1970, attorney-at-law, German
citizen, with business address at Breite Stra(beta)e 69, 40213
Dusseldorf and with private domicile at Fasanenstra(beta)e 12, 41751
Viersen, known by person,
here not acting in his own name but as representative in the name and
on behalf of
AV Packaging GmbH, a German limited liability company with
business address at Theresienstra(beta)e 1-7, 80333 Munchen,
Germany,
- hereinafter referred to as "Seller's Guarantor" -
by virtue of certified power of attorney dated August 21/23, 2002 the
original of which was presented to the Notary Public and a certified
copy of which is attached to this Notarial Deed;
3. Dr. Ingo Scholz, born May 9, 1970, attorney-at-law, German citizen,
with business address at Frankfurter Welle 5/Reuterweg 18, 60322
Frankfurt, and with private domicile at Eichendorfstr. 63 A, 60320
Frankfurt, identified by his identity card no. 4012431898,
here not acting in his own name but as representative in the name
and on behalf of
(a) Ball Pan-European Holdings, Inc., a Delaware incorporated
company with business address at 14270 Ramona Avenue, Chino,
CA 91710, United States,
- hereinafter referred to as "Purchaser" -
by virtue of certified power of attorney dated August 26, 2002
and December 13, 2002 the original of which was presented to
the Notary Public and a certified copy of which is attached to
this Notarial Deed;
(b) Ball Corporation, an Indiana incorporated company with
business address at 10 Longs Peak Drive, Broomfield, CO
80021, United States,
- hereinafter referred to as "Purchaser's Guarantor" -
by virtue of certified power of attorney dated August 26, 2002
and December 13, 2002 the original of which was presented to
the Notary Public and a certified copy of which is attached to
this Notarial Deed;
4. Mr. John Arthur Hayes, born December 2, 1965, American citizen, with
business address at Pempelforter Stra(beta)e 50, 40211 Dusseldorf and
with private address 6213 Reserve Drive in Bolder, CO 80303, United
States, identified by American passport no. 110761539
here not acting in his own name but as representative in the name and
on behalf of
(c) Ball (Germany) Acquisition GmbH, a German limited liability
company with business address at Pempelforter Stra(beta)e
50, 40211 Dusseldorf, Germany,
- hereinafter referred to as "Purchaser's Nominee" -
as managing director with authority to represent the company
solely.
The Notary Public informed the persons appeared of the contents of Section 3 (1)
No. 7 of the German Notarization Act (Beurkundungsgesetz). The persons appeared
confirmed that the Notary Public and his firm have not been involved in the
transaction at hand within the meaning of the provision referred to above.
The persons appeared requested this Notarial Deed including its Annexes to be
notarized in the English language. The Notary Public who is in sufficient
command of the English language ascertained that also the persons appeared are
in sufficient command of the English language.
The persons appeared, acting as stated above, requested the notarization of the
following:
PREAMBLE
1. WHEREAS the Seller, the Seller's Guarantor, the Purchaser and the
Purchaser's Guarantor on August 29/30, 2002, entered into a share sale
and transfer agreement (UR. Nr. H 2545 / 2002 Notary Public Dr. Armin
Hauschild at Dusseldorf) ("Agreement").
2. WHEREAS the parties hereto intend to amend the Agreement and the
notarial deed (UR. Nr. H 2544/2002 of the Notary Public Dr. Armin
Hauschild at Dusseldorf) dated August 29/30, 2002 ("Notarial Deed")
based on, and subject to, the terms and conditions of this agreement
("Amendment Agreement").
NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS:
I.
REPLACEMENT OF PURCHASER
The parties hereto agree that the Purchaser's Nominee hereby joins the
Agreement replacing the Purchaser by the assumption of any and all rights and
obligations of the Purchaser under the Agreement and the Notarial Deed. It is
acknowledged by the parties hereto, however, that nothing in this Part I shall
affect or limit the liability of the Purchaser's Guarantor under the
Agreement.
II.
SALE AND TRANSFER OF COMPANY SHARES
1. On the terms set forth in the Agreement, as amended by this Amendment
Agreement, the Seller hereby sells and, subject to the satisfaction
or, if applicable, waiver of all conditions set forth in Part IX
Sections 1 and 2 of the Agreement, transfers to the Purchaser's
Nominee, who accepts such sale and transfer, the Company Shares with
all dividend and dividend drawing rights (Gewinn- und
Gewinnbezugsrechte) relating to the profits not yet distributed on
the Closing Date and all subscription and other rights pertaining to
the Company Shares.
2. The parties to this Amendment Agreement hereby agree that the
provision set forth in Part I Section 4 of the Agreement shall be
modified, and replaced, as follows:
"The parties hereby irrevocably instruct the Notary Public to
notify the Company as to the sale and transfer of the Company
Shares in accordance with Section 16 of the German Act on
Limited Liability Companies (GmbH-Gesetz, GmbHG) subject,
however, to the receipt of the parties' written confirmation
by the Notary Public that all conditions set forth in Part IX
Sections 1 and 2 below have been satisfied or waived. The
parties hereto shall be obligated to issue such written
confirmation to the Notary Public upon such satisfaction or
waiver.
The Notary Public shall notify the Company by submitting a
copy of this Notarial Deed (excluding Parts II to VIII below).
Notwithstanding the foregoing, the parties may directly notify
the Company as to the sale and transfer of the Company Shares
in accordance with Section 16 of the German Act on Limited
Liability Companies (GmbH-Gesetz, GmbHG)."
III.
PAYMENTS
1. Any payments to the Seller under the Agreement, including but not
limited to the Estimated Purchase Price and the Purchase Price, shall
be made by money transfer to the Seller's account number 23369400 with
Deutsche Bank in London (Swift Code: DEUTGB3L).
2. Any payments to the Purchaser's Nominee, including but not limited to
any adjustments to the Estimated Purchase Price and the Purchase Price,
shall be made by money transfer to a bank account to be designated by
the Purchaser's Nominee by written notice to the Seller.
IV.
CERTAIN COVENANTS
1. The parties to this Amendment Agreement hereby agree that the
provisions set forth in Part II Section 4, last sentence, Part II
Section 12, last sentence and Part II Section 16 of the Agreement
shall be deleted.
2. The Purchaser's Nominee hereby undertakes to convene a shareholders'
meeting of the Company on the Closing Date immediately after all
conditions precedent set forth in Part IX Sections l and 2 of the
Agreement have been satisfied or waived and to properly discharge all
members of the supervisory board which have resigned from their
positions pursuant to the provision in Part IX Section 2 lit. (c);
provided, however, that such discharge shall not release any such
members of the supervisory board, the Seller or the Seller's
Guarantor from any actions taken by such members of the supervisory
board prior to the consummation of the transfer of the Company
Shares.
3. (a) The Seller and the Seller's Guarantor undertake to use all
efforts which can be reasonably expected to procure that
certain rights and obligations of Schmalbach or any other of
the Matrix Sellers under the Matrix Agreement (including
those under Section 5.18 and Article 9 of the Matrix
Agreement), shall be assigned and transferred to an
Affiliate of the Seller or to a third party nominated by the
Seller (it being agreed and understood that Seller and
Seller's Guarantor shall have no obligation to effect any
agreement which Seller and Seller's Guarantor, using
reasonable discretion, deem to be adverse to the interests
of Seller and Seller's Guarantor).
(b) The Purchaser's Nominee hereby undertakes to procure that,
upon request of the Seller, certain rights and obligations
of Schmalbach or any other of the Matrix Sellers under the
Matrix Agreement (including those under Section 5.18 and
Article 9 of the Matrix Agreement), shall be assigned and
transferred to an Affiliate of the Seller or to a third
party nominated by the Seller (it being agreed and
understood that Purchaser's Nominee shall have no obligation
to effect any agreement which Purchaser's Nominee, using
reasonable discretion and after taking into account the
indemnification obligation set forth in the following
sentence, deems to be adverse to the interests of the
Purchaser's Nominee and its Affiliates). All obligations and
Liabilities of Schmalbach based on, or resulting from, such
assignment and transfer shall be covered by the
indemnification undertaking of the Seller pursuant to Part
II Section 6 lit. (a) (i) of the Agreement.
V.
CONSIDERATION
1. The parties to this Amendment Agreement hereby agree that the
provision set forth in Part III Section 1 of the Agreement shall be
modified, and replaced, as follows:
"The entire consideration for the sale and transfer of the
Company Shares and for all other obligations assumed by the
Seller under this Agreement shall be (euro) 1,175,000,000 (in
words: Euro one billion one hundred seventy five million) less
the consolidated Net Purchase Price Adjustments (as defined
below) of the BevCan Companies ("Purchase Price") subject,
however, to the adjustments set forth in Sections 3 to 6
below. On the Closing Date, the Purchaser shall pay the Seller
(euro) 922,300,000 (in words: Euro nine hundred twenty two
million three hundred thousand) ("Estimated Purchase Price").
For purposes of this Agreement, "Net Purchase Price
Adjustments" means (x) the sum of (i) the Applicable Pension
Liabilities (as defined below), (ii) the amount of
Indebtedness set forth in the Final Closing Financial
Statements, (iii) the ABS Liabilities set forth in the Final
Closing Financial Statements and (iv) all payment obligations
of the BevCan Companies under the OTIP not fully settled at or
prior to the Closing Date, reduced by (y) the sum of cash and
cash equivalents set forth in the Final Closing Financial
Statements (except for an amount equal to USD 6,800,000 (in
words: US Dollars six million eight hundred thousand).
"Applicable Pension Liabilities" means an amount of (euro)
251,000,000 (in words: Euro two hundred fifty one million) as
mutually agreed by the parties hereto, reduced by an amount of
(euro) 5,200,000 (in words: Euro five million two hundred
thousand) representing Pension Liabilities relating to former
employees of Impress.
For purposes of calculating the Net Purchase Price
Adjustments, all payment claims of the BevCan Companies
against the Seller or any of its Affiliates (other than the
BevCan Companies, but including, without limitation, the
Affiliates acquired from the BevCan Companies under Part II
Section 6 of the Agreement) arising out of transactions
entered into in the ordinary course of business of the BevCan
Companies consistent with past practices not fully settled at
or prior to the Closing Date (as defined in the Agreement)
shall be deemed to be "cash or cash equivalents" as of the
Closing Date and all payment claims of the Seller and its
Affiliates (other than the BevCan Companies, but including,
without limitation, the Affiliates acquired from the BevCan
Companies under Part II Section 6 of the Agreement) against
the BevCan Companies arising out of transactions entered into
in the ordinary course of business of the BevCan Companies
consistent with past practices not fully settled at or prior
to the Closing Date shall be deemed to be "Indebtedness" as of
the Closing Date. The parties are in agreement that such
payment claims shall be settled in the ordinary course
consistent with past practices, but in no event later than ten
Business Days (as defined in the Agreement) after the
submission of the Final Closing Financial Statements (it being
agreed and understood by the parties that, notwithstanding the
foregoing, any payment claims not settled at the latest ten
Business Days after the submission of the Final Closing
Financial Statements shall not be deemed "cash or cash
equivalents" or "Indebtedness", as applicable, for the
purposes of calculating the Net Purchase Price Adjustments,
and any such payment claims shall be waived and cease to
exist, except for those payment claims resulting from, or
connected with, E.ON AG or Allianz AG or any of their
respective Affiliates (other than the Seller or the Seller's
Guarantor)).
2. The parties to this Amendment Agreement agree that both, the cash
amount of (euro) 130,768,000 and any other amounts withheld by the
Company in connection with the Company Distributions for withholding
tax purposes (Kapitalertragsteuer, Solidaritatszuschlag), as well
as the Company's undertaking to transfer such amounts to the competent
tax authorities shall not be considered "cash and cash equivalents" or
"Indebtedness" for purposes of, and shall have no effect on, the Net
Purchase Price Adjustments under the Agreement.
VI.
DISCLOSURE UPDATE
The parties to this Amendment Agreement hereby agree on, and acknowledge, the
Disclosure Update (as defined in the Agreement) attached hereto as Annex 1.
VII.
DIRECT PURCHASES
1. The parties to this Amendment Agreement hereby agree that the
undertakings to effect the Direct Purchases set forth in Section 1
and 2 of Annex 4 to the Agreement shall be limited to the execution
of the share sale and transfer agreement relating to the disposal of
100% of the equity of Continental Can France S.A.S. ("CCF"), a draft
of which is attached as Annex 2 hereto.
2. The execution of the Direct Purchases set forth in Section 1 above
shall occur prior to, or on, the Closing Date and shall have no
effect on the representations and warranties or any other rights,
claims, liabilities and obligations of the parties under the
Agreement and this Amendment Agreement. In furtherance of the
foregoing, the parties hereto further agree that:
(a) The terms "BevCan Subsidiaries" and "BevCan Companies" in
the Agreement shall include all subsidiaries set forth on
pages 1 to 3 of Annex 1 to the Agreement regardless of
whether such subsidiaries have been transferred to any
direct or indirect subsidiary of the Purchaser's Guarantor
prior to the consummation of the sale and transfer of the
Company Shares; and
(b) following the consummation of the Direct Purchases set forth
in Section 1 above, any and all provisions of the Agreement
shall be applied as if no Direct Purchases were consummated
prior to the consummation of the sale and transfer of the
Company Shares.
3. The parties agree that, if the consummation of the transfer of the
Company Shares does not occur prior to 11:30 p.m. (Central European
Time) on Thursday, December 19, 2002 (the "Closing Deadline"), the
Seller and the Purchaser's Guarantor shall provide a written
notification to (i) Ball (France) Holdings, S.A.S., a corporation
incorporated under the laws of the Republic of France and an indirect
subsidiary of Purchaser's Guarantor and (ii) the Company, in each
case by no later than 5 p.m. (Central European Time) on Friday,
December 20, 2002 that the consummation of the sale and transfer of
the Company Shares has not occurred.
4. The Seller and the Seller's Guarantor undertake to indemnify the
Purchaser's Nominee, the Purchaser's Guarantor and each of their
Affiliates from any and all Tax Liabilities resulting from a
notification issued by the Seller that the consummation of the
transfer of the Company Shares did not occur prior to the Closing
Deadline, although the consummation of the transfer of the Company
Shares did actually occur prior to the Closing Deadline, including,
without limitation, any Tax Liabilities relating to income which the
Purchaser's Guarantor or any of its Affiliates may have been able to
deduct for any reason (including, without limitation, as a result of
interest deductions arising from any intragroup indebtedness among
any Affiliates of Purchaser's Guarantor) if the Purchaser's Guarantor
or one of its Affiliates had acquired CCF from the Company prior to
the consummation of the transfer of the Company Shares.
The Purchaser's Nominee and the Purchaser's Guarantor shall indemnify
and hold the Seller, the Seller's Guarantor and their Affiliates fully
and in good time harmless from all obligations and Liabilities, accrued
or contingent, based on or resulting from Purchaser's Guarantor's
failure to issue a notification pursuant to Section 3 above, although
the consummation of transfer of the Company Shares did not occur prior
to the Closing Deadline.
The Seller and the Seller's Guarantor shall indemnify and hold the
Purchaser's Nominee, the Purchaser's Guarantor and their Affiliates
fully and in good time harmless from all obligations and Liabilities,
accrued or contingent, based on or resulting from Seller's failure to
issue a notification pursuant to Section 3 above, although the
consummation of transfer of the Company Shares did not occur prior to
the Closing Deadline.
VIII.
CLOSING
The parties to this Amendment Agreement hereby agree that the provision set
forth in Part IX Section 1 of the Agreement shall be modified, and replaced, as
follows:
"The transfer of the Company Shares pursuant to Part I Section 1 above
is subject to the satisfaction or, in case of lit. (c) and (f) below,
waiver of the following conditions precedent (aufschiebende
Bedingungen):
(a) completion of all merger control proceedings in Germany and
Poland without interdiction of any transaction contemplated
by this Agreement, be it by lapse of time or written
confirmation to that effect;
(b) [intentionally omitted];
(c) completion of the Asset Transfer as set forth in Part II
Section 6 lit. (i) above;
(d) completion of the Squeeze-Out as set forth in Part II
Section 9 above;
(e) completion of the Conversion as set forth in Part II Section
10 above by registration of the conversion resolution with
the competent commercial register;
(f) completion of the Company Distributions as set forth in Part
II Section 12 above and receipt of all distributed amounts
by the Seller;
(g) receipt of the Estimated Purchase Price by the Seller as set
forth in Part III Section 7 lit. (a) above; and
(h) if required under the Company's articles of association, the
shareholders' meeting of the Company and the Company have
consented to the sale and transfer of the Company Shares."
IX.
MISCELLANEOUS
1. The fees for the notarization of this Amendment Agreement shall be
split in half between the Seller and the Purchaser's Nominee. Apart
therefrom, each party hereto shall bear its own costs and taxes and the
costs of its advisors.
2. The Agreement, as amended by this Amendment Agreement, is and shall
continue to be in full force and effect and is hereby in all respects
ratified and confirmed. Nothing in this Amendment Agreement shall waive
or be deemed to waive or modify (except as set forth herein) any rights
or obligations of any of the parties under the Agreement.
3. If a provision of this Amendment Agreement should be or become invalid
or not contain a necessary regulation, the validity of the other
provisions of this Amendment Agreement shall not be affected thereby.
The invalid provision shall be replaced and the gap be filled by a
legally valid arrangement which corresponds as closely as possible to
the intention of the parties or what would have been the intention of
the parties according to the aim and purpose of this Amendment
Agreement if they had recognized the gap.
4. This Amendment Agreement shall be governed by the laws of the Federal
Republic of Germany. Any dispute among the parties with respect to the
terms of this Amendment Agreement will be settled in accordance with
the arbitration clause provided in Part X Section 8 of the Agreement.
In order to facilitate the comprehensive resolution of disputes between
the parties under the Agreement and this Amendment Agreement, any
claims between any of the parties to this Amendment Agreement and any
claims between any of the parties to the Agreement may be brought in a
single arbitration.
5. None of the parties hereto shall make, or cause to be made, except as
maybe otherwise required by law, any disclosure or announcement in
respect of this Amendment Agreement, its contents or any of the
transactions contemplated thereby to any third party in the business
community, without the prior written consent of the other party.
6. This Amendment Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns, but
this Amendment Agreement may not be assigned by any party without the
written consent of the other parties; provided, however, that this is
not intended to restrict the Direct Purchases.
7. The inclusion of any word or phrase in this Amendment Agreement in the
German language shall not be deemed to place any limitations on the
concept or item discussed therein.
8. Capitalized terms in this Amendment Agreement shall have the same
meaning as defined in the Agreement if not expressly stated otherwise.
This deed, these parts of its Annex 1 which are reflected in a marked-up version
and additionally initialled "H" as well as Annex 2 were read to the individuals
present by the notary. The remaining parts of the Annexes are attached for
identification purposes only.
Thereafter the individuals present approved this deed including its Annexes and
signed this deed with me, the notary, as follows:
/s/ Harald Selzner
/s/ Marco Sustmann
/s/ Ingo Scholz
/s/ John A. Hayes
/s/ Armin Hauschild, Notary