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Exhibit 10.13
CONTRIBUTION AGREEMENT
CONTRIBUTION AGREEMENT, dated as of June __, 1999, between
Financiere Europeenne d'Emballages Pechiney, a French societe anonyme ("FEEP")
and American National Can Group, Inc., a Delaware corporation ("ANC Group").
W I T N E S S E T H:
WHEREAS, FEEP desires to contribute, transfer and assign to
ANC Group, and ANC Group desires to acquire from FEEP, all right, title and
interest of FEEP in and to the capital stock (the "Stock") of the Contributed
Subsidiaries (as such term is hereinafter defined), upon the terms and subject
to the conditions set forth herein;
WHEREAS, in consideration for the contribution and transfer by
FEEP of the Stock to ANC Group, ANC Group agrees to issue to FEEP [ ] shares of
the common stock of ANC Group (the "Shares");
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements and covenants contained herein, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms. The following terms
shall have the meanings defined for such terms in the Sections of this Agreement
set forth below:
"Action" means any action, suit, arbitration, inquiry,
proceeding or investigation by or before any Governmental Authority.
"Affiliate" means, with respect to any specified Person, any
other Person that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such specified
Person.
"Agreement" means this Contribution Agreement, including any
amendments hereto and each Schedule and Exhibit attached hereto.
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"Contributed Subsidiaries" means the corporations, limited
liability companies, partnerships, associations and other entities specified in
Schedule 1.01A.
"Encumbrance" means any security interest, pledge, mortgage,
lien (including, without limitation, environmental and tax liens), charge,
encumbrance, adverse claim, preferential arrangement, or restriction of any
kind, including, without limitation, any arrangement, restriction on the use,
voting, transfer, receipt of income or other exercise of any attributes of
ownership.
"Governmental Authority" means any United States federal,
state or local or any foreign government, governmental, regulatory or
administrative authority, agency or commission or any court, tribunal, or
judicial or arbitral body.
"Governmental Order" means any order, writ, judgment,
injunction, decree, stipulation, determination or award entered by or with any
Governmental Authority.
"Law" means any federal, state, local or foreign statute, law,
ordinance, regulation, rule, code, order, requirement or rule of common law.
"Person" means any individual, partnership, limited liability
company, firm, corporation, association, trust, unincorporated organization or
other entity, as well as any syndicate or group that would be deemed to be a
person under Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended.
SECTION 1.02. Other Defined Terms. The following terms shall
have meanings defined for such terms in the Sections of this Agreement set forth
below:
Term Section
---- -------
ANC Group Preamble
FEEP Preamble
Shares Recitals
Stock Recitals
ARTICLE II
CONTRIBUTION OF STOCK; ISSUANCE OF SHARES
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SECTION 2.01. Contribution, Transfer and Assignment of Stock.
FEEP does hereby sell, assign, transfer, convey, grant, bargain, set over,
release, deliver and confirm unto ANC Group, its successors and permitted
assigns, as a capital contribution, the entire right, title and interest of FEEP
in and to the Stock.
SECTION 2.02. Issuance of Shares. As of the date hereof, ANC
Group has authorized 1,000,000,000 shares of Common Stock, par value $0.01 per
share. In exchange for the Stock, ANC Group shall issue to FEEP, effective as of
the date hereof, the Shares. ANC Group agrees to cause a certificate for such
Shares to be issued to FEEP upon consummation of the transactions contemplated
by this Agreement. Such Shares, when issued, will be fully paid and
non-assessable.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF FEEP
FEEP represents and warrants as follows:
SECTION 3.01. Incorporation and Authority of FEEP. FEEP is a
corporation duly incorporated and validly existing under the laws of its
jurisdiction of incorporation, and has all necessary corporate power and
authority to enter into this Agreement, to carry out its obligations hereunder
and thereunder and to consummate the transactions contemplated hereby and
thereby. The execution and delivery of this Agreement by FEEP, the performance
by FEEP of its obligations hereunder and thereunder and the consummation by FEEP
of the transfers contemplated hereby and thereby have been duly authorized by
all requisite corporate action on the part of FEEP. This Agreement has been
duly executed and delivered by FEEP, and (assuming due authorization, execution
and delivery by ANC Group) this Agreement constitutes, legal, valid and binding
obligations of FEEP, enforceable against FEEP in accordance with their terms.
SECTION 3.02. Incorporation and Qualification of the
Contributed Subsidiaries. Each Contributed Subsidiary is a corporation duly
incorporated and validly existing under the laws of its jurisdiction of
incorporation.
SECTION 3.03. Stock of the Contributed Subsidiaries. The Stock
has been duly authorized and validly issued and is fully paid and was not issued
in violation of any pre-emptive rights. FEEP beneficially owns the Stock free
and clear of Encumbrances except for Encumbrances arising out of, under or in
connection with this Agreement or created by or through ANC Group or any of its
subsidiaries. There are no voting trusts, stockholder agreements, proxies or
other agreements in effect with respect to the voting or transfer of the Stock.
Upon payment for the Stock as contemplated by this Agreement, ANC Group will
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acquire from FEEP good and marketable title to the Stock, free and clear of all
Encumbrances, except Encumbrances arising by or through ANC Group or any of its
subsidiaries.
SECTION 3.04. No Conflict. Assuming all consents, approvals,
authorizations and other actions described in Section 3.05 have been obtained,
and except as may result from any facts or circumstances relating to ANC Group
or as described in Schedule 3.04, the execution, delivery and performance of
this Agreement by FEEP does not and will not (a) violate or conflict with the
charter or other constitutive documents or by-laws of FEEP or any Contributed
Subsidiary, (b) conflict with or violate any material Law or Governmental Order
applicable to FEEP or any Contributed Subsidiary or (c) result in any breach of,
or 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 any Person any rights
of termination, amendment, acceleration or cancellation, or give to any Person
any additional rights or entitlement to increased, additional, accelerated or
guaranteed payments under, or result in the creation of any Encumbrance on any
Stock pursuant to, any note, bond, contract, license, permit, franchise or other
instrument to which FEEP or any Contributed Subsidiary is a party or by which
any of such Stock is bound or affected, except as would not, individually or in
the aggregate impair the ability of FEEP to consummate the contribution and
transfer of the Stock to ANC Group as contemplated by this Agreement.
SECTION 3.05. Consents and Approvals. The execution and
delivery of this Agreement by FEEP do not, and the performance of this Agreement
by FEEP will not, require any material consent, approval, authorization or other
action by, or filing with or notification to, any Governmental Authority, except
(a) as described in Schedule 3.05, (b) where failure to obtain such consent,
approval, authorization or action, or to make such filing or notification, would
not, individually or in the aggregate, prevent FEEP from performing its
obligations under this Agreement or (c) as may be necessary as a result of any
facts or circumstances relating solely to ANC Group or its subsidiaries.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF ANC GROUP
ANC Group represents and warrants as follows:
SECTION 4.01. Organization. ANC Group is a corporation duly
formed, validly existing and in good standing under the laws of the State of
Delaware. This Agreement constitutes the legal, valid and binding obligation of
ANC Group, enforceable in accordance with its terms.
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SECTION 4.02. Authorization of Transaction. The execution and
delivery of this Agreement and all other instruments and documents contemplated
herein by ANC Group have been duly authorized by all necessary corporate action
of ANC Group. Neither the execution nor delivery of this Agreement nor the
fulfillment of nor compliance with the terms hereof will conflict with or result
in a breach of the terms, conditions or provisions of or constitute a default
under or any agreement or instrument to which ANC Group is a party.
SECTION 4.03. Securities Matters. ANC Group understands that
the offering and sale of the Stock hereunder is intended to be exempt from the
registration requirements of the Securities Act of 1933, as amended, (the
"Securities Act") pursuant to Section 4(2) thereof. The Stock is being acquired
by ANC Group for its own account and without a view to the public distribution
of the Stock or any interest therein. ANC Group has sufficient knowledge and
experience in financial and business matters so as to be capable of evaluating
the merits and risks of their investments in the Stock, and ANC Group is capable
of bearing the economic risks of such investments, including a complete loss of
its investment in the Stock. In evaluating the suitability of an investment in
the Stock, ANC Group has relied solely upon the representations, warranties,
covenants and agreements made by FEEP herein and not upon any other
representations or other information (whether oral or written and including any
projections or supplemental data) made or supplied by or on behalf of FEEP or
any of its Affiliates, employees, agents or other representatives. ANC Group
understands and agrees that it may not sell or dispose of any of the Stock other
than pursuant to a registered offering or in a transaction exempt from the
registration requirements of the Securities Act.
ARTICLE V
COVENANTS OF THE PARTIES
SECTION 5.01. Further Assurances. FEEP agrees to perform such
other acts and to execute, acknowledge and/or deliver such other instruments,
documents and other materials, all at ANC Group's expense, which ANC Group, its
successors or assigns, may deem proper for the collection or reduction to
possession of collection and enforcement of any claim or right of any kind
hereby sold, conveyed, transferred, assigned and delivered, or intended so to
be.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.01. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of Illinois,
applicable to contracts executed in and to be performed entirely within that
state.
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SECTION 6.02. Currency. Unless otherwise specified in this
Agreement, all references to currency, monetary values and dollars set forth
herein mean United States (U.S.) Dollars and all payments hereunder shall be
made in United States Dollars.
SECTION 6.03. Specific Performance. Each of the parties
acknowledges that money damages would not be a sufficient remedy for any breach
of this Agreement and that irreparable harm would result if this Agreement were
not specifically enforced. Therefore, the rights and obligations of the parties
under this Agreement shall be enforceable by a decree of specific performance
issued by any court of competent jurisdiction, and appropriate injunctive relief
may be applied for and granted in connection therewith. A party's right to
specific performance shall be in addition to all other legal or equitable
remedies available to such party.
SECTION 6.04. Waiver of Jury Trial. Each of the parties
irrevocably waives to the extent permitted by law all rights to trial by jury in
any action, proceeding or counterclaim arising out of or relating to this
Agreement.
SECTION 6.05. Headings. The article and section headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
SECTION 6.06. Entire Agreement. This Agreement embodies the
entire agreement and understanding of the parties hereto in respect of the
subject matter contained herein and therein and supersede all prior agreements
and understandings between the parties with respect to the subject matter hereof
and thereof.
SECTION 6.07. Severability. If any one or more provisions
contained in this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement, but
this Agreement shall be construed as if such invalid, illegal, or unenforceable
provision had never been contained herein.
SECTION 6.08. No Third Party Beneficiaries. This Agreement
shall be binding upon and inure solely to the benefit of the parties hereto and
their permitted assigns and nothing herein, express or implied, is intended to
or shall confer upon any other Person any legal or equitable right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
SECTION 6.09. Arbitration. (a) Any controversy, claim or
dispute arising out of or in connection with this Agreement or the breach,
termination, enforceability or validity hereof, including without limitation the
determination of the scope or applicability of the agreement to arbitrate set
forth in this Section 6.09, shall be fully and finally determined exclusively by
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binding arbitration in accordance with the Commercial Arbitration Rules of the
American Arbitration Association (the "AAA Rules"). The seat of the arbitration
shall be the City of Chicago, State of Illinois. The arbitral tribunal shall be
comprised of three arbitrators appointed in accordance with the AAA Rules.
(b) No provision of, nor the exercise of any rights under,
this Section 6.09 shall limit the right of any party to request and obtain from
a court of competent jurisdiction in the City of Chicago, State of Illinois
(which shall have exclusive jurisdiction for purposes of this Section 6.09(b))
before, during or after the pendency of any arbitration, solely for the purpose
of seeking provisional or conservatory remedies in aid of the arbitration,
including, but not limited to, injunctive relief, in accordance with the AAA
Rules. The institution and maintenance of an action or judicial proceeding for,
or pursuit of, provisional or conservatory remedies shall not constitute a
waiver of the right of any party, even if it is the plaintiff, to submit the
dispute to arbitration if such party would otherwise have such right.
(c) Judgment upon the award rendered may be entered in any
court having jurisdiction. The parties hereby expressly consent to the
nonexclusive jurisdiction of the state and federal courts situated in the City
of Chicago, State of Illinois for this purpose and waive objection to the venue
of any proceeding in such court or that such court provides an inconvenient
forum.
(d) Each of the parties shall, subject to the award of the
arbitrators, pay an equal share of the arbitrators' fees. The arbitrators shall
have the power to award recovery of all costs (including attorneys' fees,
administrative fees, arbitrators' fees and court costs) to the prevailing party.
SECTION 6.10. Assignment. This Agreement or any rights or
obligations arising hereunder may not be assigned by operation of Law or
otherwise without the express written consent of FEEP and ANC Group (which
consent may be granted or withheld in the sole discretion of FEEP and ANC
Group); provided, however, that (i) FEEP may assign this Agreements, in whole
and not in part, or any of its rights hereunder, to an Affiliate of FEEP,
without the consent of ANC Group (provided that FEEP shall nevertheless remain
obligated to perform its obligations hereunder following any such assignment),
and (ii) ANC Group may assign this Agreement, in whole and not in part, to a
Person who acquires all or substantially all of the assets and liabilities of
ANC Group, without the consent of FEEP.
SECTION 6.11. Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument and shall become a
binding Agreement when one or more of the counterparts have been signed by each
of the parties and delivered to the other party.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
FINANCIERE EUROPEENNE D'EMBALLAGES
PECHINEY
By: _____________________________________
Name:
Title:
AMERICAN NATIONAL CAN GROUP, INC.
By: _____________________________________
Name:
Title:
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SCHEDULE 1.01A
CONTRIBUTED SUBSIDIARIES
Name Jurisdiction of Interest Contributed
---- Organization --------------------
---------------
ANC do Brasil Ltda. Brazil 68,255,990 quotas
Nacanco Holding Europe France 43,707,528 "B" Class Shares (preference shares),
each of a nominal value of FF 100
Nacano Holding France France 10,252,377 "A" Class Shares (ordinary shares),
each of a nominal value of FF 100