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EXHIBIT 99.1
Alcan Aluminium Limited
June 1, 2000
STRICTLY CONFIDENTIAL
BZ Group Holding Limited,
BZ Bank Limited and
Stillhalter Vision AG
c/o BZ Group Holding Limited
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Attention : ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ - Director
TENDER AGREEMENT
Dear Sirs :
Alcan Aluminium Limited (the "Offeror") and Alusuisse Lonza Group AG ("Algroup")
are parties to a Combination Agreement dated September 15, 1999 (as previously
amended and further amended simultaneously herewith) which provides for the
making by the Offeror of a share exchange offer (the "Swiss Exchange Offer") to
acquire the issued and outstanding shares (meaning the registered shares, par
value CHF 100 per share) of Algroup (the "Algroup Shares"). This Tender
Agreement sets out the terms and conditions of the agreement by BZ Group Holding
Limited, BZ Bank Limitedand Stillhalter Vision AG, each as principals and on
behalf of their clients (the "Shareholders") to deposit or cause to be deposited
under the Swiss Exchange Offer (as defined in the Combination Agreement), in all
cases irrevocably and unconditionally, no less than 2,300,000 Algroup Shares
(collectively, the "Shareholder Securities"), the whole for the purposes of
irrevocably and unconditionally accepting this Swiss Exchange Offer in respect
of the Shareholder Securities. This Tender Agreement also sets forth the
obligations and commitments of the Shareholders in connection therewith.
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ARTICLE 1
REPRESENTATION AND WARRANTIES
1.1 Representations and Warranties of the Shareholders. Each of the
Shareholders hereby represents and warrants that:
(a) Status and Authorization. It is a corporation duly incorporated
or other legal entity duly formed and validly exists under the
laws of its jurisdiction of incorporation or formation, as
applicable; it has all necessary power, authority, capacity and
right, and has received all requisite approvals to enter into
this Tender Agreement and to complete the transactions
contemplated hereby; and this Tender Agreement has been duly
executed and delivered by it.
(b) Ownership and Securities. All of the Shareholder Securities are
either owned legally and beneficially by one or more of the
Shareholders or are subject to the unrestricted right held by
one or more of them to tender the Shareholder Securities into
the Swiss Exchange Offer; as among the Shareholders they have
the exclusive right to dispose of the Shareholder Securities as
provided in this Tender Agreement or to take all decisions and
give all directions in this regard, in both cases to the full
extent necessary to transfer good and marketable title to same,
free and clear of all encumbrances and rights of third parties;
no Shareholder is a party to, bound or affected by or subject
to, any charter or by-law provision, statute, regulation,
judgement, order, decree, law or obligation which would be
violated, contravened, breached by, or under which default would
occur as a result of the execution and delivery of this Tender
Agreement or the consummation of any of the transactions
provided for in this Tender Agreement.
(c) Voting. None of the Shareholders has previously granted or
agreed to grant any proxy in respect of any Shareholder
Securities or entered into any voting trust, vote pooling or
other agreement with respect to the
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rights to vote, call meetings of shareholders or give consents
or approvals of any kind as to any Shareholder Securities that
would conflict with its obligations under this Tender Agreement
or the completion of the Swiss Exchange Offer.
(d) Consents. No consent, approval or exemption from or registration
or filing with any governmental, administrative or regulatory
authority or other person is required to be obtained or made by
any of the Shareholders in connection with (i) the execution and
delivery by any of the Shareholders or enforcement against any
of the Shareholders of this Tender Agreement or (ii) the
consummation of any transactions by any of the Shareholders
provided for herein, except for reports required to be filed in
respect of ownership of securities under applicable securities
legislation.
1.2 Representations and Warranties of the Offeror. The Offeror hereby
represents and warrants that the Offeror is a corporation duly
incorporated and validly existing under the laws of its jurisdiction of
incorporation; that the Offeror has all necessary power, authority,
capacity and right, and has received all requisite approvals to enter
into this Tender Agreement and the Combination Agreement and to complete
the transactions contemplated hereby and thereby; that it has no
knowledge as to the occurrence of any event or the current existence of
any situation which would cause the conditions set forth in Part A of
Schedule 2 to the Combination Agreement not to be satisfied if the Swiss
Exchange Offer were to be made on the date hereof; and that this Tender
Agreement has been duly executed and delivered by the Offeror.
ARTICLE 2
COVENANTS OF THE SHAREHOLDER
2.1 General. Each of the Shareholders hereby covenants that until the
Offeror has taken up and paid for the Shareholder Securities under the
Swiss Exchange Offer, or the terms of this Tender Agreement have been
terminated by the Shareholders as permitted hereby:
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(a) neither it nor any person under its control or direction will
sell, transfer, pledge, encumber, grant a security interest in,
hypothecate or otherwise convey any of the Shareholder
Securities to any person or agree to do any of the foregoing or
otherwise take any action of any kind which in any such case is
reasonably likely to jeopardize the success of or delay the
completion of the Swiss Exchange Offer;
(b) prior to the completion of the Swiss Exchange Offer, the
Shareholders will cause the voting rights attaching to each of
the Shareholder Securities to be exercised in favour of the
making of the Special Swiss Shareholder Payments, as defined in
the Combination Agreement as amended;
(c) The Shareholders will at all relevant times act and cause their
officers, employees and agents and those of all persons under
its control or direction to act in a manner consistent with the
successful completion of the Swiss Exchange Offer upon the terms
and conditions of the Combination Agreement and the performance
of Algroup's obligations under the Combination Agreement.
2.2 Deposit. The Shareholders hereby irrevocably and unconditionally and
jointly and severally covenant and agree to tender the Shareholder
Securities in the Swiss Exchange Offer and to deposit same (together
with duly completed and executed letters of transmittal, deposit or
power of attorney) under and in accordance with the terms of the Swiss
Exchange Offer, as soon as practicable and in no event more than ten
business days (i.e. days when banking institutions in Zurich,
Switzerland are generally open for business) after the Swiss Exchange
Offer has been initiated.
2.3 No-Withdrawal. The Shareholders hereby irrevocably and unconditionally
and jointly and severally covenant and agree not to withdraw, permit to
be withdrawn or take any action to withdraw any acceptance of the Swiss
Exchange Offer in respect of Shareholder Securities or to withdraw any
of the Shareholder Securities deposited under the Swiss Exchange Offer.
This covenant shall
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apply notwithstanding any statutory rights, rights under the terms of
the Swiss Exchange Offer or rights which might otherwise exist, unless
this Tender Agreement is terminated in accordance with its terms prior
to the taking up of any of the Algroup Shares by the Offeror under the
Swiss Exchange Offer; however, in the event that any condition to the
completion of the Swiss Exchange Offer is waived without their written
consent, the Shareholders shall have the right to withdraw the
Shareholder Securities from the Swiss Exchange Offer and terminate this
Tender Agreement.
ARTICLE 3
COVENANTS OF THE OFFEROR
3.1 General. The Offeror hereby covenants in favour of the Shareholders that
the Offeror will comply with the terms of the Combination Agreement with
regard to the making of the Swiss Exchange Offer .
ARTICLE 4
TERMINATION BY THE SHAREHOLDER AND THE OFFEROR
4.1 Termination of Shareholders. Each Shareholder may, when not in default
in performance of its obligations under this Tender Agreement and
without prejudice to any other rights, terminate this Tender Agreement
by notice to the Offeror if the Swiss Exchange Offer is not made as
required by the Combination Agreement or, having been made, lapses
without any Algroup Shares having been acquired.
4.2 Termination of the Offeror. The Offeror may, when not in default in
performance of its obligations under this Tender Agreement and without
prejudice to any other rights, terminate this Tender Agreement by notice
to the Shareholders if the requirements of Article 2 hereof are not met
or the Offeror or Algroup terminates the Combination Agreement.
4.3 Effect of Termination. In the case of any termination of this Tender
Agreement pursuant to this Article 4, this Tender Agreement shall be of
no further force and
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effect as regards the terminating party but nothing herein shall relieve
any party from liability for any breach of this Tender Agreement prior
to its termination.
ARTICLE 5
GENERAL
5.1 Survival of Representations and Warranties. The representations and
warranties of both parties shall survive the consummation of the Swiss
Exchange Offer
5.2 Disclosure. Except as required by applicable laws or regulations, or as
required by any competent governmental, judicial or other authority, or
in accordance with the requirements of any stock exchange, neither the
Offeror, on the one hand, nor the Shareholders, on the other hand, shall
make any public announcement or statement with respect to this Tender
Agreement without the approval of the Shareholders or the Offeror, as
the case may be, which approval shall not be unreasonably withheld.
Moreover, the parties agree to consult with each other prior to issuing
each public announcement or statement with respect to this Tender
Agreement.
5.3 Shares. References to the Algroup Shares or the Shareholder Securities
include any shares into which same may be reclassified, subdivided,
consolidated, exchanged or converted and any rights and benefits arising
therefrom including any extraordinary distributions of securities which
may be declared in respect of the Algroup Shares.
5.4 Assignment. The Offeror may assign all or any part of its rights under
this Tender Agreement to an affiliate of the Offeror, but, if such
assignment takes place, the Offeror shall continue to be liable to the
Shareholders for any default in performance by the assignee. This Tender
Agreement shall not otherwise be assignable by any party hereto without
the consent of the other party.
5.5 Time. Time shall be of the essence of this Tender Agreement.
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5.6 Governing Law. This Tender Agreement shall be governed by and construed
in accordance with the laws of England without regard to its conflict of
laws principles. Any dispute arising out of or in connection with this
Tender 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.
5.7 Entire Agreement. This Tender Agreement constitutes the entire agreement
and understanding between the parties hereto with respect to the subject
matter hereof and supersedes any prior agreement, representation or
understanding with respect thereto.
5.8 Amendments. This Tender 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.
5.9 Specific Performance and other Equitable Rights. Each of the parties
recognizes and acknowledges that the Offeror would not contemplate
causing the Combination Agreement to be amended and the Shareholders
would not agree to irrevocably deposit the Shareholder Securities to the
Swiss Exchange Offer unless this Tender Agreement were executed and that
a breach by a party of any covenants or other commitments contained in
this Tender Agreement will cause the other party to sustain injury for
which it would not have adequate remedy at law for money damages.
Therefore, each of the parties agrees that in the event of any such
breach, the aggrieved party shall be entitled to the remedy of specific
performance of such covenants or commitments and preliminary and
permanent injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity, and the parties
further agree to waive any requirement for the securing or posting of
any bond in connection with the obtaining of any such injunctive or
other equitable relief.
5.10 Notices. Any notice, request, consent, agreement or approval which may
or is required to be given pursuant to this Tender Agreement shall be in
writing and shall be sufficiently given or made if delivered, in the
case of: (a) the Offeror, to
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Alcan Aluminium Limited, Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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848-1478, facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇; or (b) the Shareholders, to
the attention of the person and at the address set out on the first page
of this Tender Agreement or to such other address as the relevant party
may from time to time advise by notice in writing given pursuant to this
section. The date of receipt of any such notice, request, consent,
agreement or approval shall be deemed to be the date of delivery
thereof.
5.11 Expenses. As between the parties hereto, each of them shall pay its own
legal, financial advisory and accounting costs and expenses incurred in
connection with the preparation, execution and delivery of this Tender
Agreement and all documents and instruments executed or prepared
pursuant hereto and any other costs and expense whatsoever and howsoever
incurred.
5.12 Severability. If any provision of this Tender Agreement is determined to
be void or unenforceable in whole or in part, it shall be deemed not to
affect or impair the validity or any other provision of this Tender
Agreement and such void or unenforceable provision shall be severable
from this Tender Agreement.
5.13 Counterparts and Facsimile. This Tender 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 facsimile transmission.
If the terms and conditions hereof are acceptable to you please so indicate by
executing and returning a copy hereof to the undersigned.
Yours truly,
ALCAN ALUMINIUM LIMITED
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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President and Chief Executive Officer
Agreed and accepted this June 1, 2000.
BZ GROUP HOLDING LIMITED
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Director
BZ BANK LIMITED
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Director
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Managing Director
STILLHALTER VISION AG
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Director
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Managing Director
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