Exhibit 1.1
ARDAGH GROUP S.A.
Class A Common Shares
(par value of €0.01 each)
Underwriting Agreement
[•], 2017
Citigroup Global Markets Inc.
As Representative of the several Underwriters listed on Schedule I hereto,
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Ardagh Group S.A., a
limited liability company incorporated under the laws of Luxembourg with its registered office at 56, rue Charles Martel, L - 2134 Luxembourg, Luxembourg and registered with the Luxembourg Register of Commerce and Companies under number B53248 (the “Company”), proposes to sell to the several underwriters named in Schedule I hereto (the “Underwriters”), for whom you (the “Representative”) are acting as representative, [•] Class A common shares, par value of €0.01 each (“A Shares”), of the Company (said A Shares to be issued and sold by the Company being hereinafter called the “Underwritten Securities”). The Company proposes to grant to the Underwriters an option to purchase up to [•] additional A Shares to cover over-allotments, if any (said A Shares being hereinafter called the “Option Securities”; the Option Securities, together with the Underwritten Securities, being hereinafter called the “Securities”). The term Underwriters shall mean each of the entities listed on Schedule I in either the singular or plural as the context requires. Certain terms used herein are defined in Section 23 hereof. As part of the offering contemplated by this Agreement, Citigroup Global Markets Inc. has agreed to reserve out of the Securities set forth opposite its name on the Schedule I to this Agreement, up to shares, for sale to [certain of the Company’s employees] (collectively, “Participants”), as set forth in the Prospectus under the heading “Underwriting” (the “Directed Share Program”). The Securities to be sold by Citigroup Global Markets Inc. pursuant to the Directed Share Program (the “Directed Shares”) will be sold by Citigroup Global Markets Inc. pursuant to this Agreement at the public offering price. Any Directed Shares not orally confirmed for purchase by any Participants by [7:30 A.M.] New York City time on the business day following the date on which this Agreement is executed will be offered to the public by Citigroup Global Markets Inc. as set forth in the Prospectus.
1.
Representations and Warranties of the Company
. The Company represents and warrants to, and agrees with, each Underwriter as set forth below in this Section 1.
(a)
The Company has prepared and filed with the Commission a registration statement (file number 333-214684) on Form F-1, including a related preliminary prospectus, for registration under the Act of the offering and sale of the Securities. Such Registration Statement, including any amendments thereto filed prior to the Execution Time, has become effective. The Company may have filed one or more amendments thereto, including a related preliminary prospectus, each of which has previously been furnished to you. The Company will file with the Commission a final prospectus covering the Securities in accordance with Rule 424(b). As filed, such final prospectus shall contain all information required by the Act and, except to the extent the Representative shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus) as the Company has advised you, prior to the Execution Time, will be included or made therein.
(b)
On the Effective Date, the Registration Statement did, and when the Prospectus is first filed in accordance with Rule 424(b) and on the Closing Date (as defined herein) and on any date on which Option Securities are purchased, if such date is not the Closing Date (a “settlement date”), the Prospectus (and any supplement thereto) will, comply in all material respects with the applicable requirements of the Act; on the Effective Date and at the Execution Time, the Registration Statement did not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; and on the date of any filing pursuant to Rule 424(b) and on the Closing Date and any settlement date, the Prospectus (together with any supplement thereto) will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
provided
,
however
, that the Company makes no representations or warranties as to the information contained in or omitted from the Registration Statement, or the Prospectus (or any supplement thereto) in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representative specifically for inclusion in the Registration Statement or the Prospectus (or any supplement thereto), it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8 hereof.
(c)
(i) The Disclosure Package and the price to the public, the number of Underwritten Securities and the number of Option Securities to be included on the cover page of the Prospectus, when taken together as a
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whole and (ii) the bona fide electronic road show when taken together as a whole with the Disclosure Package and the price to the public, the number of Underwritten Securities and the number of Option Securities to be included on the cover page of the Prospectus, does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished to the Company by any Underwriter through the Representative specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8 hereof.
(d)
(i) At the time of filing the Registration Statement and (ii) as of the Execution Time (with such date being used as the determination date for purposes of this clause (ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule 405), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an Ineligible Issuer.
(e)
Each Issuer Free Writing Prospectus does not include any information that conflicts with the information contained in the Registration Statement or the Disclosure Package, including any document incorporated by reference therein that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by any Underwriter through the Representative specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8 hereof.
(f)
The Company was not a Passive Foreign Investment Company (“PFIC”) within the meaning of Section 1297 of the United States Internal Revenue Code of 1986, as amended, for U.S. federal income tax purposes in the 2016 taxable year and based on the nature of the Company’s business, the projected composition of the Company’s income and the projected composition and estimated fair market values of the Company’s assets, the Company does not expect to be a PFIC for U.S. federal income tax purposes in 2017 or in the foreseeable future.
(g)
Each of the Company and its Subsidiaries (as defined below) has been duly incorporated, formed or organized and is validly existing as a corporation, limited liability company, partnership or other legal form of organization, as the case may be, in good standing (if applicable under
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the laws of the relevant jurisdiction) under the laws of the respective jurisdiction in which it is chartered, formed or organized with full corporate power and authority to own or lease, as the case may be, and to operate its respective properties
and conduct its business as described in the Disclosure Package and the Prospectus, and is duly qualified to do business and is in good standing (if applicable under the laws of the relevant jurisdiction) under the laws of each jurisdiction which requires such qualification except to the extent to be so qualified or be in good standing under the laws of such jurisdiction would not have a Material Adverse Effect. As used herein, “Material Adverse Effect” means a material adverse change in the condition, financial or otherwise, prospects, earnings or business affairs of the Company and its Subsidiaries, taken as a whole, whether or not arising in the ordinary course of business.
(h)
The subsidiaries listed on Exhibit 21.1 of the Registration Statement are the only significant subsidiaries of the Company as defined by Rule 1.02(w) of Regulation S-X under the Act (the “Subsidiaries”). Any subsidiaries omitted from the foregoing list, considered in the aggregate as a single subsidiary, do not constitute a significant subsidiary as defined by Rule 1.02(w) of Regulation S-X under the Act.
(i)
All the outstanding shares of capital stock of each Subsidiary have been duly and validly authorized and issued and are fully paid and, to the extent applicable, nonassessable, and, except as otherwise set forth in the Disclosure Package and the Prospectus, all outstanding shares of capital stock of the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest or any other security interests, claims, liens or encumbrances.
(j)
The Company’s authorized equity capitalization is as set forth in the Disclosure Package and the Prospectus; the capital stock of the Company (including the A Shares and the Class B common shares, par value of €0.10 each, of the Company (“B Shares”)) conforms in all material respects to the description thereof contained in the Disclosure Package and the Prospectus; the outstanding shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and, to the extent applicable, nonassessable; the Securities have been duly and validly authorized and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and, to the extent applicable, nonassessable; the Securities have been approved for listing, subject to official notice of issuance and evidence of satisfactory distribution, on the New York Stock Exchange; except as disclosed in the Disclosure Package and the Prospectus, the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as
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set forth in the Disclosure Package and the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding.
(k)
There is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required (and the Preliminary Prospectus contains in all material respects the same description of the foregoing matters contained in the Prospectus); and the statements in the Preliminary Prospectus and the Prospectus under the headings [“Business—Environmental, Health and Safety and Product Safety Regulation,” “Business—Legal Proceedings,” “Certain Relationships and Related Party Transactions,” “Description of Share Capital,” “Description of Certain Indebtedness” and “Taxation”] insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries, in all material respects, of such legal matters, agreements, documents or proceedings.
(l)
This Agreement has been duly authorized, executed and delivered by the Company. The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
(m)
The Company is not and, after giving pro forma effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package and the Prospectus, will not be required to register as an “investment company” as defined in the Investment Company Act of 1940, as amended.
(n)
No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated in this Agreement, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated herein and in the Disclosure Package and the Prospectus.
(o)
The issue and sale of the Securities, the consummation of any other of the transactions herein contemplated or the fulfillment of the terms of this Agreement will not conflict with, result in a breach or violation of, or
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imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its
Subsidiaries pursuant to, (i) the articles, charter or bylaws of the Company or any of its Subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or any of its Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any of its Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its Subsidiaries or any of its or their properties except, in the case of clauses (ii) and (iii) of this Section 1(o), to the extent that any such breach, violation or imposition would not have (x) a Material Adverse Effect or (y) a material adverse effect on the performance of this Agreement, or the consummation of any of the transactions contemplated hereby, by the Company or any of its Subsidiaries.
(p)
No holders of securities of the Company have rights to the registration of such securities under the Registration Statement.
(q)
Except as otherwise stated therein, since the respective dates as of which information is given in the Registration Statement, the Disclosure Package or the Prospectus, (A) there has been no material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, (B) there have been no transactions entered into by the Company or any of its subsidiaries, other than those in the ordinary course of business, which are material with respect to the Company and its subsidiaries considered as one enterprise, and (C) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(r)
The financial statements and related notes of the Company and its subsidiaries included in the Disclosure Package, the Prospectus and the Registration Statement present fairly in all material respects the financial condition, results of operations and cash flows of the Company and its subsidiaries as of the dates and for the periods indicated; comply as to form in all material respects with the applicable accounting requirements of the Act and have been prepared in conformity with international financial reporting standards (“IFRS”) as issued by the IASB applied on a consistent basis throughout the periods involved (except as otherwise noted therein); the selected financial data set forth under the captions [“Summary Consolidated Financial and Other Data of Ardagh Group S.A.,” “Capitalization,” “Selected Financial Information” and “Management’s Discussion and Analysis of Financial Condition and
6
Results of Operations”] as it relates to the Company and its consolidated subsidiaries in the Disclosure Package, the Prospectus and the Registration Statement fairly present in all material respects, on the basis stated in the Disclosure Package, the Prospectus and the Registration Statement, the information included therein. The
pro forma
financial statements included in the Disclosure Package, the Prospectus and the Registration Statement comply
as to form in all material respects with the applicable accounting requirements of Regulation S-X under the Act and the
pro forma
adjustments have been properly applied to the historical amounts in the compilation of those statements.
(s)
The financial statements and related notes of certain metal beverage packaging operations of Ball Corporation (the “Ball Carve-Out Business”) included in the Disclosure Package, the Prospectus and the Registration Statement present fairly in all material respects the financial condition, results of operations and cash flows of the Ball Carve-Out Business as of the dates and for the periods indicated and have been prepared in conformity with generally accepted accounting principles in the United States (except as otherwise noted therein).
(t)
The financial statements and related notes of certain metal beverage packaging operations of Rexam PLC (the “Rexam Carve-Out Business”) included in the Disclosure Package, the Prospectus and the Registration Statement present fairly in all material respects the financial condition, results of operations and cash flows of the Rexam Carve-Out Business as of the dates and for the periods indicated and have been prepared in conformity with international financial reporting standards as adopted by the IASB applied on a consistent basis throughout the periods involved (except as otherwise noted therein).
(u)
No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its Subsidiaries or its or their property is pending or, to the knowledge of the Company, threatened that (i) could reasonably be expected to have a material adverse effect on the performance of this Agreement or the consummation of any of the transactions contemplated hereby or (ii) could reasonably be expected to have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(v)
Each of the Company and its Subsidiaries owns or leases all such properties as are necessary to the conduct of its operations as presently conducted, except where the failure to own or lease any such property would not have a Material Adverse Effect.
(w)
Except as disclosed in the Disclosure Package and the Prospectus, each of the Company and its Subsidiaries has good and marketable title to all real
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and personal property described in the Disclosure Package and the Prospectus as being owned by it and (assuming good title by the lessor) good title to a leasehold estate in the real and personal property described in the Disclosure Package and the Prospectus as being leased by it pursuant to leases that are still in full force and effect, free and clear of all liens, charges, encumbrances or restrictions, except to the extent the failure to
have such title or the existence of such liens, charges, encumbrances or restrictions would not, individually or in the aggregate, have a Material Adverse Effect.
(x)
None of the Company or any of its subsidiaries is in violation or default of (i) any provision of its articles, charter, bylaws, statutes or similar organizational documents; (ii) the terms of any material indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which it is a party or bound or to which its property is subject; or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or such subsidiary or any of its or their properties, as applicable, except in the case of clauses (ii) and (iii) to the extent that any such violation or default would not have (x) a Material Adverse Effect or (y) a material adverse effect on the performance of this Agreement or the consummation of any of the transactions contemplated hereby by the Company or any subsidiary.
(y)
PricewaterhouseCoopers, Dublin, who have audited certain financial statements of the Company and its consolidated subsidiaries and delivered their report with respect to the audited consolidated financial statements and schedules included in the Disclosure Package, the Prospectus and the Registration Statement, are independent public accountants with respect to the Company within the meaning of the Act and the applicable published rules and regulations thereunder.
(z)
To the knowledge of the Company, PricewaterhouseCoopers LLP, who have audited certain combined financial statements of the Ball Carve-Out Business and delivered their report with respect to the audited consolidated non-statutory financial statements included in the Disclosure Package, the Prospectus and the Registration Statement, are independent public accountants with respect to the Ball Carve-Out Business within the meaning of the Act and the applicable published rules and regulations thereunder.
(aa)
To the knowledge of the Company, PricewaterhouseCoopers LLP, who have audited certain combined carve-out financial statements of the Rexam Carve-Out Business and delivered their report with respect to the audited consolidated non-statutory financial statements included in the
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Disclosure Package, the Prospectus and the Registration Statement, are independent public accountants with respect to the Rexam Carve-Out Business within the meaning of the Act and the applicable published rules and regulations thereunder.
(bb)
No stamp duties or other issuance or transfer taxes or duties, or other similar fees or charges, are required to be paid by the Underwriters in connection with the execution and delivery of the Securities or this Agreement, or the issuance or sale by the Company of the Securities.
(cc)
The Company and its Subsidiaries have (A) timely paid, or caused to be paid, all U.S. federal, state, local and non-U.S. taxes (including any related interest and penalties) required to be paid by the Company or its Subsidiaries (whether or not shown on any tax return), including as a withholding agent, through the date hereof (except for any taxes due but not yet delinquent and any taxes being contested in good faith for which adequate reserves have been maintained in accordance with IFRS), except where the failure to pay would not have a Material Adverse Effect and (B) timely filed, or caused to be filed, all U.S. federal, state, local and non-U.S. tax returns required to be filed through the date hereof, except where the failure to file would not have a Material Adverse Effect. The Company has made adequate charges, accruals and reserves in accordance with IFRS in the applicable financial statements referred to in Section 1(r) hereof in respect of all unpaid U.S. federal, state, local and non-U.S. taxes for all periods as to which the tax liability of the Company or its Subsidiaries has not been finally determined, except as would not have a Material Adverse Effect. There is no tax deficiency that has been asserted against the Company or the Subsidiaries or any of their respective properties or assets that would have a Material Adverse Effect.
(dd)
No labor problem or dispute with the employees of the Company or its Subsidiaries exists or, to the knowledge of the Company, is threatened or imminent except as would not have a Material Adverse Effect.
(ee)
(i) The Company and each of its Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged; (ii) all policies of insurance and fidelity or surety bonds insuring the Company or any of its Subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect; (iii) the Company and each of its Subsidiaries are in compliance with the terms of such policies and instruments; (iv) there are no claims by the Company or any of its Subsidiaries under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause; (v) neither the Company nor any such Subsidiary has been refused any insurance coverage sought or applied for, except, with respect to sub-paragraphs (i), (ii), (iii), (iv)
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and (v) above, where such failure to obtain insurance, the force and effectiveness of such policies, non-compliance with the terms of such policies and instruments, value of claims denied and the refusal of coverage, respectively, would not, individually or in the aggregate, have a Material Adverse Effect; and neither the Company nor any such Subsidiary has any reason to believe
that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a Material Adverse Effect.
(ff)
The Company and each of its Subsidiaries possess all licenses, certificates, permits and other authorizations issued by the appropriate regulatory authorities necessary to conduct their respective businesses, except where the failure to possess such licenses, certificates, permits and other authorizations would not, individually or in the aggregate, have a Material Adverse Effect, and neither the Company nor any such Subsidiary has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect.
(gg)
The Company and each of its Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company and its subsidiaries’ internal controls over financial reporting are effective and the Company and its subsidiaries are not aware of any material weakness in their internal controls over financial reporting.
(hh)
No Subsidiary of the Company is currently prohibited, directly or indirectly, from paying any dividends to the Company, from making any other distribution on such Subsidiary’s capital stock, from repaying to the Company any loans or advances to such Subsidiary from the Company or from transferring any of such Subsidiary’s property or assets to the Company or any other Subsidiary of the Company, except as described in or contemplated by the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(ii)
The Company and its Subsidiaries maintain “disclosure controls and procedures” (as such term is defined in Rule 13a-15(e) under the
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Exchange Act); such disclosure controls and procedures are reasonably designed to ensure that all information required to be disclosed by the Company in the reports that it files or submits under the
Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms, and is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding disclosure and to make certifications of the Chief Executive Officer and Chief Financial Officer of the Company required under the Exchange Act with respect to such reports.
(jj)
The Company has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(kk)
The Company and each of its Subsidiaries are (i) in compliance with any and all applicable laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”); (ii) have received and are in compliance with all governmental permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses; and (iii) have not received notice of any actual or potential liability for the investigation or remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, except, with respect to clauses (i), (ii) and (iii) above, where such non-compliance with Environmental Laws, failure to receive required permits, licenses or other approvals, or liability would not, individually or in the aggregate, have a Material Adverse Effect.
(ll)
In the ordinary course of business, the Company periodically reviews the effect of Environmental Laws on the business, operations and properties of itself and its subsidiaries, in the course of which it identifies and evaluates associated costs and liabilities (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws, or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties); on the basis of such review, the Company has reasonably concluded that such associated costs and liabilities would not, individually or in the aggregate, have a Material Adverse Effect.
(mm)
Each of the employee benefit plans and pension schemes, if any, of the Company and each of its Subsidiaries is in compliance in all respects with applicable law except where the failure to comply would not, individually or in the aggregate, have a Material Adverse Effect. The
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levels of contribution to the pension schemes operated by the Company and each of its Subsidiaries are sufficient to comply with all of its or their obligations under such pension schemes except where the failure to comply would not have a Material Adverse Effect.
(nn)
The Company and each of its Subsidiaries own or possess, or can acquire on reasonable terms, adequate patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks, trade names or other intellectual property (collectively, “Intellectual Property”) necessary to carry on the business now operated by them, except to the extent that any such failure to own or possess or to have the right to acquire would not have a Material Adverse Effect, and none of the Company or any of its Subsidiaries has received any notice or is otherwise aware of any infringement of or conflict with asserted rights of others with respect to any Intellectual Property or of any facts or circumstances which would render any Intellectual Property invalid or inadequate to protect the interest of the Company or such Subsidiary therein, and which infringement or conflict (if the subject of any unfavorable decision, ruling or finding) or invalidity or inadequacy, individually or in the aggregate, would have a Material Adverse Effect.
(oo)
No relationship, direct or indirect, exists between or among the Company or any of its subsidiaries, on the one hand, and the directors, managers, officers, stockholders or other affiliates of the Company or any of its subsidiaries, on the other, that would be required by the Act to be described in a registration statement to be filed with the Commission and that is not so described in the Registration Statement, the Disclosure Package or the Prospectus.
(pp)
Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that could result in a violation by such individual or entities of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder or the U.K. Bribery Act 2010 or similar law of any other relevant jurisdiction or other applicable anti-bribery or anti-corruption law; and the Company and its subsidiaries maintain the codes of conduct and policies and procedures designed to ensure, and which reasonably are expected to continue to ensure compliance therewith.
(qq)
The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements and the applicable money laundering statutes and the rules and regulations thereunder and any
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related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(rr)
Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries (i) is currently the subject or target of any sanctions administered or imposed by the United States (including any administered or enforced by the Office of Foreign Assets Control of the U.S. Treasury Department, the U.S. Department of State, or the Bureau of Industry and Security of the U.S. Department of Commerce), the United Nations Security Council, the European Union, the United Kingdom (including sanctions administered or controlled by Her Majesty’s Treasury) or other relevant sanctions authority (collectively, “Sanctions” and such persons subject to Sanctions, “Sanctioned Persons”) or (ii) will, directly or indirectly, use the proceeds of this offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other individual or entity (a) to fund or finance any activities or business of or with any individual or entity, or in any country or territory, that, at the time of such funding or financing, is the subject of Sanctions, or (b) in any other manner that will result in a violation of any Sanctions by, or could result in the imposition of Sanctions against, any individual or entity (including any individual or entity participating in the offering, whether as underwriter, advisor, investor or otherwise).
(ss)
Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries, is an individual or entity that is, or is 50% or more owned in the aggregate or otherwise controlled by, or is acting on behalf of, an individual or entity that is: (i) the subject of any Sanctions; or (ii) located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions that broadly prohibit dealings with that country or territory (currently, the Crimea region, Cuba, Iran, North Korea, Sudan and Syria) (collectively, “Sanctioned Countries” and each, a “Sanctioned Country”).
(tt)
Neither the Company nor any of its subsidiaries has engaged in any dealings or transactions with or for the benefit of a Sanctioned Person, or with or in a Sanctioned Country, in the preceding five years. Neither the Company nor any of its subsidiaries has any plans to increase its dealings or transactions with Sanctioned Persons, or, except as is not material to the analysis under any Sanctions and as disclosed to the Underwriters,
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with or in Sanctioned Countries, and, to the extent any such dealings or transactions occur, such dealings or transactions will not violate Sanctions.
(uu)
Neither the Company nor any of its subsidiaries nor any of its or their properties or assets has any immunity from the jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution or otherwise) under the laws of Luxembourg or the United States.
(vv)
The choice of laws of the State of New York as the governing law of this Agreement is a valid choice of law under the laws of Luxembourg and will be recognized by the courts of Luxembourg in accordance with and subject to the provisions of EC Regulation 593/2008 of 17 June 2008 on the law applicable to contractual obligations.
(ww)
The Company has the power to submit, and pursuant to Section 16 of this Agreement has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the U.S. federal or state courts sitting in The City of New York and County of New York, and service of process effected in the manner set forth in this Agreement, assuming validity under the laws of the State of New York, will be effective, insofar as the laws of Luxembourg are concerned, to confer valid personal jurisdiction over the Company. The Company has the power to designate, appoint and empower and pursuant to Section 16 of this Agreement has validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising from this Agreement in any U.S. federal or state court sitting in New York City.
(xx)
[RESERVED]
(yy)
Nothing has come to the attention of the Company that has caused the Company to believe that the statistical and market-related data included or incorporated by reference in each of the Disclosure Package and Prospectus is not based on or derived from sources that are reliable and accurate in all material respects.
(zz)
The Company has taken all necessary actions to ensure that, upon the effectiveness of the Registration Statement, it and its officers and directors will be in compliance with all provisions of the Sarbanes-Oxley Act of 2002 and all rules and regulations promulgated thereunder or implementing the provisions thereof (the “Sarbanes-Oxley Act”) that are then in effect and with which the Company and its officers and directors are required to comply as of the effectiveness of the Registration Statement, and is actively taking steps to ensure that it and its officers and directors will be in compliance with other provisions of the Sarbanes-
14
Oxley Act not currently in effect, upon the effectiveness of such provisions, or which will become applicable to the Company and its officers and directors at all times after the effectiveness of the Registration Statement.
(aaa)
Furthermore, the Company represents and warrants to Citigroup Global Markets Inc. that (i) the Registration Statement, the Prospectus, any preliminary prospectus and any other materials prepared by or with the consent of the Company for distribution in connection with the Directed Share Program comply, and any further amendments or supplements thereto will comply, with any applicable laws or regulations of non-U.S. jurisdictions in which the Prospectus, any preliminary prospectus or any other materials prepared by or with the consent of the Company for distribution in connection with the Directed Share Program, as amended or supplemented, if applicable, are distributed in connection with the Directed Share Program, and (ii) no authorization, approval, consent, license, order, registration or qualification of or with any government, governmental instrumentality or court, other than such as have been obtained, is necessary under the securities laws and regulations of non-U.S. jurisdictions in which the Directed Shares are offered outside the United States. The Company has not offered, or caused the Underwriters to offer, Securities to any person pursuant to the Directed Share Program with the specific intent to unlawfully influence (i) a customer or supplier of the Company to alter the customer’s or supplier’s level or type of business with the Company, or (ii) a trade journalist or publication to write or publish favorable information about the Company or its products.
Any certificate signed by any officer of the Company and delivered to the Representative or counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by the Company, as to matters covered thereby, to each Underwriter.
2.
Purchase and Sale
.
(a)
Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company, at a purchase price of [
·
] per share, the amount of the Underwritten Securities set forth opposite such Underwriter’s name in Schedule I hereto.
(b)
Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company hereby grants an option to the several Underwriters to purchase, severally and not jointly, up to [
·
] Option Securities at the same purchase price per share as the Underwriters shall pay for the Underwritten Securities. Said option may be exercised only to cover over-allotments in the sale of the Underwritten Securities by the Underwriters. Said option may be exercised in whole or in part at any time on
15
or before the 30th day after the date of the Prospectus upon written or telegraphic notice by the Representative to the Company setting forth the number of shares of the Option Securities as to which the several Underwriters are exercising the option and the settlement date. The number of Option Securities to be purchased by each Underwriter shall be the same percentage of the total number of shares of the Option Securities to be purchased by the several Underwriters as such Underwriter is purchasing of the Underwritten Securities, subject to such adjustments as you in your absolute discretion shall make to eliminate any fractional shares.
3.
Delivery and Payment
. Delivery of and payment for the Underwritten Securities and the Option Securities (if the option provided for in Section 2(b) hereof shall have been exercised on or before the third Business Day immediately preceding the Closing Date) shall be made at 10:00 AM, New York City time, on [•], 2017, or at such time on such later date not more than three Business Days after the foregoing date as the Representative shall designate, which date and time may be postponed by agreement between the Representative and the Company or as provided in Section 9 hereof (such date and time of delivery and payment for the Securities being herein called the “Closing Date”). Delivery of the Securities shall be made to the Representative for the respective accounts of the several Underwriters against payment by the several Underwriters through the Representative of the purchase price thereof to or upon the order of the Company by wire transfer payable in same-day funds to an account specified by the Company. Delivery of the Underwritten Securities and the Option Securities shall be made through the facilities of The Depository Trust Company unless the Representative shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after the third Business Day immediately preceding the Closing Date, the Company will deliver the Option Securities (at the expense of the Company) to the Representative, on the date specified by the Representative (which shall be within three Business Days after exercise of said option) for the respective accounts of the several Underwriters, against payment by the several Underwriters through the Representative of the purchase price thereof to or upon the order of the Company by wire transfer payable in same-day funds to an account specified by the Company. If settlement for the Option Securities occurs after the Closing Date, the Company will deliver to the Representative on the settlement date for the Option Securities, and the obligation of the Underwriters to purchase the Option Securities shall be conditioned upon receipt of, supplemental opinions, certificates and letters confirming as of such date the opinions, certificates and letters delivered on the Closing Date pursuant to Section 6 hereof.
4.
Offering by Underwriters
. It is understood that the several Underwriters propose to offer the Securities for sale to the public as set forth in the Prospectus.
5.
Agreements
. The Company agrees with the several Underwriters that:
(a)
Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. The Company will cause the Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b)
16
within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i) when the Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts
to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b)
If, at any time prior to the filing of the Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) notify promptly the Representative so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
(c)
If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the rules thereunder, the Company promptly will (i) notify the Representative of any such event; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance; and (iii) supply any supplemented Prospectus to you in such quantities as you may reasonably request.
17
(d)
As soon as practicable, the Company will make generally available to its security holders and to the Representative an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(e) The Company will furnish to the Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(f) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representative may reasonably designate and will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(g) The Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any shares of capital stock of the Company (including any A Shares or any B Shares) or any securities convertible into, or exercisable or exchangeable for such shares; or publicly announce an intention to effect any such transaction, for a period of 180 days after the date of this Agreement;
provided
,
however
, that the Company may issue and sell A Shares pursuant to any employee stock option plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time and disclosed in the Disclosure Package and the Company may issue A Shares issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time and disclosed in the Disclosure Package. The Company will provide the Representative and any co-managers and each individual subject to the restricted period pursuant to the lock-up letters described in Section
[6(l)] with prior notice of any such announcement that gives rise to an extension of the restricted period.
18
(h)
If Citigroup Global Markets Inc., in its sole discretion, agrees to release or waive the restrictions set forth in a lock-up letter described in Section [6(l)] hereof for an officer or director of the Company and provides the Company with notice of the impending release or waiver at least three Business Days before the effective date of the release or waiver, the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit B hereto through a major news service at least two Business Days before the effective date of the release or waiver.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the New York Stock Exchange; (vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vii) any filings required to be made with the Financial Industry Regulatory Authority (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Securities; (ix) the fees and expenses of the accountants of the Company, the Ball Carve-Out Business and the Rexam Carve-Out Business and the fees and expenses of counsel (including local and special counsel) for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder. Except as otherwise provided herein, the Underwriters shall pay their own costs and expenses in connection with the transactions contemplated hereby, including, without limitation, fees and expenses of their counsel or counsels.
(k) The Company agrees to pay (1) all reasonable fees and disbursements of counsel incurred by the Underwriters in connection with the Directed Share Program, (2)
19
all reasonable costs and expenses incurred by the Underwriters in connection with the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of copies of the Directed Share Program material and (3) all stamp duties, similar taxes or duties or other taxes, if any, incurred by the Underwriters in connection with the Directed Share Program.
(l)
The Company agrees that, unless it has or shall have obtained the prior written consent of the Representative, and each Underwriter, severally and not jointly, agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433;
provided
that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II hereto and the bona fide electronic road show. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(m) All payments made by the Company under this Agreement (including, for the avoidance of doubt, any underwriting or purchase discount treated as a fee or other amount subject to withholding) will be made without withholding or deduction for or on account of any present or future taxes, duties, assessments, levies, imposts, or governmental fees or charges of whatever nature unless required by law. If any such withholding or deduction is required by law, the Company will pay such additional amounts as will result, after such withholding or deduction, in the receipt by each Underwriter of the amounts that would otherwise have been receivable without such withholding or deduction. All payments made by the Company under this Agreement shall be exclusive of any value added tax or any other tax of a similar nature (“VAT”) which is chargeable thereon and if any VAT is or becomes chargeable in respect of any such payment, the Company shall pay in addition the amount of such VAT (on provision of a valid VAT invoice).
Furthermore, the Company covenants with Citigroup Global Markets Inc. that the Company will comply with all applicable securities and other applicable laws, rules and regulations in each non-U.S. jurisdiction in which the Directed Shares are offered in connection with the Directed Share Program.
6.
Conditions to the Obligations of the Underwriters
. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 5 hereof, to the accuracy of the statements of the Company made in any
20
certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a)
The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b)
The Company shall have requested and caused (i) Shearman & Sterling LLP, counsel for the Company, to have furnished to the Representative their opinion and negative assurance letter, each dated the Closing Date and addressed to the Underwriters, to the effect set forth in Exhibit C attached hereto, and (ii) M Partners, Luxembourg counsel for the Company, to have furnished to the Representative their opinion, dated the Closing Date and addressed to the Underwriters, to the effect set forth in Exhibit D attached hereto.
(c)
The Representative shall have received from Cahill Gordon & Reindel LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Underwriters, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require and negative assurance letter, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(d)
The Company shall have furnished to the Representative a certificate of the Company, signed by or on behalf of (a) one of its Chairman of the Board, Chief Executive or President and (b) either the principal financial or accounting officer, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as the bona fide electronic road show used in connection with the offering of the Securities, and this Agreement and that:
1.
the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
2.
no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
21
3.
since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition, financial or otherwise, prospects, earnings, business affairs or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(e)
At the Execution Time, the Company shall have requested and caused PricewaterhouseCoopers, Dublin, to furnish to the Representative a letter, dated as of the Execution Time, substantially in the form set forth in Exhibit E-1 attached hereto, with respect to the financial statements and certain financial information of the Company contained in each of the Disclosure Package, the Prospectus and the Registration Statement. At the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers, Dublin, to furnish to the Representative a letter, dated as of the Closing Date, in form and substance satisfactory to the Representative, which shall refer to the comfort letter dated as of the Execution Time described in this clause (e) and reaffirm or update as of a more recent date, the information stated in the comfort letter dated as of the Execution Time and similarly address the audited and any unaudited financial information in the Prospectus, including any supplement thereto.
(f)
At the Execution Time, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representative a letter, dated as of the Execution Time, substantially in the form set forth in Exhibit E-2 attached hereto, with respect to the financial statements and certain financial information of the Rexam Carve-Out Business contained in each of the Disclosure Package, the Prospectus and the Registration Statement. At the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representative a letter, dated as of the Closing Date, in form and substance satisfactory to the Representative, which shall refer to the comfort letter dated as of the Execution Time described in this clause (f) and reaffirm or update as of a more recent date, the information stated in the comfort letter dated as of the Execution Time and similarly address the audited and any unaudited financial information in the Prospectus, including any supplement thereto.
(g)
At the Execution Time, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representative a letter, dated as of the Execution Time, substantially in the form set forth in Exhibit E-3 attached hereto, with respect to the financial statements and certain financial information of the Ball Carve-Out Business contained in each of the Disclosure Package, the Prospectus and the Registration Statement. At the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representative a letter, dated as of the Closing Date, in form and substance satisfactory to the Representative, which shall refer to the comfort letter dated as of the Execution Time described in this clause (g) and reaffirm or update as of a more recent date, the information stated in the comfort letter dated as of the Execution Time and similarly address the audited and any unaudited financial information in the Prospectus, including any supplement thereto.
22
(h)
Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e), (f) or (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings or business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i)
Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
(j)
Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k)
The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Representative.
(l)
At the Execution Time, the Company shall have furnished to the Representative a letter substantially in the form of Exhibit A hereto from each person and entity listed on Schedule III.
If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be delivered at the office of Cahill Gordon & Reindel LLP, counsel for the Underwriters, at 80 Pine Street, New York, New York 10005, on the Closing Date.
23
7.
Reimbursement of Underwriters’ Expenses
. If the sale of the Securities provided for herein is not consummated because any condition to the obligations of the Underwriters set forth in Section 6 hereof is not satisfied, because of any termination pursuant to Section 10(i) hereof or because of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply with any provision hereof other than by reason of a default by any of the Underwriters, the Company will reimburse the Underwriters severally through Citigroup Global Markets Inc. on demand for all reasonable expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by them in connection with the proposed purchase and sale of the Securities.
8.
Indemnification and Contribution
.
(a)
The Company agrees to indemnify and hold harmless each Underwriter, the directors, officers, employees, affiliates and agents of each Underwriter and each person who controls any Underwriter within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other U.S. federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the registration statement for the registration of the Securities as originally filed or in any amendment thereof, or in any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action;
provided
,
however
, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter through the Representative specifically for inclusion therein. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b)
Each Underwriter severally and not jointly agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who signs the Registration Statement, and each person who controls the Company within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Company by or on behalf of such
24
Underwriter through the Representative specifically for inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The Company acknowledges that the statements set forth [
·
] in the Preliminary Prospectus and the Prospectus constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus.
(c)
The Company agrees to indemnify and hold harmless Citigroup Global Markets Inc., the directors, officers, employees, affiliates and agents of Citigroup Global Markets Inc. and each person, who controls Citigroup Global Markets Inc. within the meaning of either the Act or the Exchange Act (“Citigroup Entities”), from and against any and all losses, claims, damages and liabilities to which they may become subject under the Act, the Exchange Act or other U.S. federal or state statutory law or regulation, at common law or otherwise (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim), insofar as such losses, claims damages or liabilities (or actions in respect thereof) (i) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the prospectus wrapper material prepared by or with the consent of the Company for distribution in non-U.S. jurisdictions in connection with the Directed Share Program attached to the Prospectus, any preliminary prospectus or any other materials prepared by or with the consent of the Company for distribution in connection with the Directed Share Program, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statement therein, when considered in conjunction with the Prospectus or any applicable preliminary prospectus, not misleading; (ii) caused by the failure of any Participant to pay for and accept delivery of the securities which immediately following the Effective Date of the Registration Statement, were subject to a properly confirmed agreement to purchase; or (iii) related to, arising out of, or in connection with the Directed Share Program, except that this clause (iii) shall not apply to the extent that such loss, claim, damage or liability is finally judicially determined to have resulted primarily from the gross negligence or willful misconduct of the Citigroup Entities.
(d)
Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a), (b) or (c) of this Section 8 unless and to the extent it did not otherwise learn of such
25
action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a), (b) or (c) of this Section 8. The indemnifying party shall be entitled to appoint counsel of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties except as set forth below);
provided
,
however
, that such counsel shall be satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent
: (i) includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and (ii) does not include an admission of fault by or on behalf of an indemnified party. Notwithstanding anything contained herein to the contrary, if indemnity may be sought pursuant to Section 8(c) hereof in respect of such action or proceeding, then in addition to such separate firm for the indemnified parties, the indemnifying party shall be liable for the reasonable fees and expenses of not more than one separate firm (in addition to any local counsel) for Citigroup Global Markets Inc., the directors, officers, employees and agents of Citigroup Global Markets Inc., and all persons, if any, who control Citigroup Global Markets Inc. within the meaning of
26
either the Act or the Exchange Act for the defense of any losses, claims, damages and liabilities arising out of the Directed Share Program.
(e)
In the event that the indemnity provided in paragraph (a), (b), (c) or (d) of this Section 8 is unavailable to or insufficient to hold harmless an indemnified party for any reason, the indemnifying parties agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending the same) (collectively “Losses”) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and by the Underwriters on the other from the offering of the Securities;
provided
,
however
, that in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount or commission applicable to the Securities purchased by such Underwriter hereunder. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the indemnifying parties shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company, on the one hand, and of the Underwriters, on the other, in connection with the statements or omissions which resulted in such Losses as well as any other relevant equitable considerations. Benefits received by the Company shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by it, and benefits received by the Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover page of the Prospectus. Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information provided by the Company, on the one hand, or the Underwriters, on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The indemnifying parties agree that it would not be just and equitable if contribution were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (e), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each person who controls an Underwriter within the meaning of either the Act or the Exchange Act and each director, officer, employee, affiliate and agent of an Underwriter shall have the same rights to contribution as such Underwriter, and each person who controls the Company within the meaning of either the Act or the Exchange Act, each officer of the
27
Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this paragraph (e).
9.
Default by an Underwriter
. If any one or more Underwriters shall fail to purchase and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions which the amount of Securities set forth opposite their names in Schedule I hereto bears to the aggregate amount of Securities set forth opposite the names of all the remaining Underwriters) the Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase;
provided
,
however
, that in the event that the aggregate amount of Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate amount of Securities set forth in Schedule I hereto, the remaining Underwriters shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Securities, and if such nondefaulting Underwriters do not purchase all the Securities, this Agreement will terminate without liability to any nondefaulting Underwriter or the Company. In the event of a default by any Underwriter as set forth in this Section 9, the Closing Date shall be postponed for such period, not exceeding five Business Days, as the Representative shall determine in order that the required changes in the Registration Statement and the Prospectus or in any other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company and any nondefaulting Underwriter for damages occasioned by its default hereunder.
10.
Termination
. This Agreement shall be subject to termination in the absolute discretion of the Representative, by notice given to the Company prior to delivery of and payment for the Securities, if at any time prior to such delivery and payment (i) trading in the Company’s A Shares shall have been suspended by the Commission or the New York Stock Exchange or trading in securities generally on the New York Stock Exchange shall have been suspended or limited or minimum prices shall have been established on either of such exchanges, (ii) a banking moratorium shall have been declared either by U.S. federal, New York State or Luxembourg authorities, (iii) there shall have occurred a material disruption in commercial banking or securities settlement or clearance services or (iv) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States or Luxembourg of a national emergency or war, or other calamity or crisis the effect of which on financial markets is such as to make it, in the sole judgment of the Representative, impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Preliminary Prospectus or the Prospectus (exclusive of any amendment or supplement thereto).
11.
Representations and Indemnities to Survive
. The respective agreements, representations, warranties, indemnities, rights of contribution and other statements of the Company or its officers and of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or the Company or any of the officers, directors, employees, affiliates, agents or controlling persons referred to in Section 8 hereof, and will survive delivery of and payment for
28
the Securities. The provisions of Sections 7 and 8 hereof shall survive the termination or cancellation of this Agreement.
12.
Notices
. All communications hereunder will be in writing and effective only on receipt, and, if sent to the Representative, will be mailed, delivered or telefaxed to the Citigroup Global Markets Inc. General Counsel (fax no.: +1 (646) 291-1469) and confirmed to the General Counsel, Citigroup Global Markets Inc., at 388 Greenwich Street, New York, New York, 10013, Attention: General Counsel; or, if sent to the Company, will be mailed, delivered or telefaxed to [fax no: [
·
] (Attention: [
·
]), with a copy to the same fax no: (Attention: [
·
]) and with a copy to Shearman & Sterling LLP, 599 Lexington Avenue, New York, NY 10022, Attention: Richard Alsop].
13.
Successors
. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers, directors, employees, agents and controlling persons referred to in Section 8 hereof, and no other person will have any right or obligation hereunder.
14.
No fiduciary duty
. The Company hereby acknowledges that (a) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the Underwriters and any affiliate through which it may be acting, on the other, (b) the Underwriters are acting as principal and not as an agent or fiduciary of the Company and (c) the Company’s engagement of the Underwriters in connection with the offering and the process leading up to the offering is as independent contractors and not in any other capacity. Furthermore, the Company agrees that it is solely responsible for making its own judgment in connection with the offering (irrespective of whether any of the Underwriters has advised or is currently advising the Company on related or other matters). The Company agrees that it will not claim that the Underwriters have rendered advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto.
15.
Integration
. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof.
16.
Jurisdiction
. The Company agrees that any suit, action or proceeding against it brought by any Underwriter, the directors, officers, employees and agents of any Underwriter, or by any person who controls any Underwriter, arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in any State or U.S. federal court in The City of New York, New York, and waives any objection which it may now or hereafter have to the laying of venue of any such proceeding, and irrevocably submits to the exclusive jurisdiction of such courts in any suit, action or proceeding. The Company shall promptly appoint Ardagh Metal Packaging USA Inc. as its authorized agent (the “Authorized Agent”) upon whom process may be served in any suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated herein which may be instituted in any State or U.S. federal court in The City of New York, New York, by any Underwriter, the directors, officers, employees and agents of any Underwriter, or by any person who controls any Underwriter, and expressly accepts the exclusive jurisdiction of any such court in respect of any such suit, action or
29
proceeding. The Company agrees that final judgment in any such suit, action or proceeding brought in such court shall be conclusive and binding upon the Company and may be enforced in any court to the jurisdiction of which Company is subject by a suit upon such judgment. The Company hereby represents and warrants as of the Closing Date that the Authorized Agent has accepted such appointment and has agreed to act as said agent for service of process, and the Company agrees to take any and all action, including the filing of any and all documents that may be necessary to continue such appointment in full force and effect as aforesaid. Service of process upon the Authorized Agent shall be deemed, in every respect, effective service of process upon the Company.
17.
Applicable Law
. This Agreement and any claim, controversy or dispute arising under or related to this Agreement will be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York.
18.
Waiver of Jury Trial
. The Company hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
19.
Currency
. Each reference in this Agreement to U.S. Dollars (the “relevant currency”) is of the essence. To the full extent permitted by law, the obligations of the Company in respect of any amount due under this Agreement will, notwithstanding any payment in any other currency (whether pursuant to a judgment or otherwise), be discharged only to the extent of the amount in the relevant currency that the party entitled to receive such payment may, in accordance with its normal procedures, purchase with the sum paid in such other currency (after any premium and costs of exchange) on the Business Day immediately following the day on which such party receives such payment. If the amount in the relevant currency that may be so purchased for any reason falls short of the amount originally due, the Company will pay such additional amounts, in the relevant currency, as may be necessary to compensate for the shortfall.
20.
Waiver of Immunity
. To the extent that the Company has or hereafter may acquire any immunity (sovereign or otherwise) from any legal action, suit or proceeding, from jurisdiction of any court or from set-off or any legal process (whether service or notice, attachment in aid or otherwise) with respect to itself or any of its property, the Company hereby irrevocably waives (to the extent permitted by applicable law) and agrees not to plead or claim such immunity in respect of its obligations under this Agreement.
21.
Counterparts
. This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute one and the same agreement.
22.
Headings
. The Section headings used herein are for convenience only and shall not affect the construction hereof.
23.
Definitions
. The terms that follow, when used in this Agreement, shall have the meanings indicated.
30
“Act” shall mean the
United States Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York City or Luxembourg City.
“Commission” shall mean the Securities and Exchange Commission.
“Disclosure Package” shall mean (i) the Preliminary Prospectus that is generally distributed to investors and used to offer the Securities, (ii) the Issuer Free Writing Prospectuses, if any, identified in Schedule II hereto and (iii) any other Free Writing Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package.
“Effective Date” shall mean each date and time that the Registration Statement, any post-effective amendment or amendments thereto and any Rule 462(b) Registration Statement became or becomes effective.
“Exchange Act” shall mean the
United States Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Execution Time” shall mean [
·
] [a.m./p.m.] on [
·
], 2017.
“Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“IASB” means the International Accounting Standards Board.
“Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus relating to the Securities, as defined in Rule 433.
“Preliminary Prospectus” shall mean any preliminary prospectus referred to in Section 1(a) and any such preliminary prospectus included in the Registration Statement at the Effective Date that omits Rule 430A Information.
“Prospectus” shall mean the prospectus relating to the Securities that is first filed pursuant to Rule 424(b) after the Execution Time.
“Registration Statement” shall mean the registration statement referred to in paragraph 1(a) above, including exhibits and financial statements and any prospectus supplement relating to the Securities that is filed with the Commission pursuant to Rule 424(b) and deemed part of such registration statement pursuant to Rule 430A, as amended at the Execution Time and, in the event any post-effective amendment thereto or any Rule 462(b) Registration Statement becomes effective prior to the Closing Date, shall also mean such registration statement as so amended or such Rule 462(b) Registration Statement, as the case may be.
“Rule 158,” “Rule 163,” “Rule 164,” “Rule 172,” “Rule 405,” “Rule 415,” “Rule 424,” “Rule 430A” and “Rule 433” refer to such rules under the Act.
31
“Rule 430A Information” shall mean information with respect to the Securities and the offering thereof permitted to be omitted from the Registration Statement when it becomes effective pursuant to Rule 430A.
“Rule 462(b) Registration Statement” shall mean a registration statement and any amendments thereto filed pursuant to Rule 462(b) relating to the offering covered by the registration statement referred to in Section 1(a) hereof.
32
If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters.
|
|
Very truly yours,
|
|
|
|
|
|
ARDAGH GROUP S.A.
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
Name:
|
|
|
|
Title:
|
33
|
The foregoing Agreement is hereby
|
|
|
confirmed and accepted as of the
|
|
|
date first above written.
|
|
|
|
|
|
|
|
|
CITIGROUP GLOBAL MARKETS INC.
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
Name:
|
|
|
|
Title:
|
|
|
|
|
|
|
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|
For itself and the other
|
|
|
several Underwriters named in
|
|
|
Schedule I to the foregoing
|
|
|
Agreement.
|
|
34
SCHEDULE I
|
Underwriters
|
|
Number of
A Shares
to be Purchased
|
|
Citigroup Global Markets Inc.
|
|
[
·
]
|
|
Deutsche Bank Securities Inc.
|
|
[
·
]
|
|
Goldman, Sachs & Co.
|
|
[
·
]
|
|
Barclays Capital Inc.
|
|
[
·
]
|
|
Credit Suisse Securities (USA) LLC
|
|
[
·
]
|
|
J.P. Morgan Securities LLC
|
|
[
·
]
|
|
J&E Davy
|
|
[
·
]
|
|
Wells Fargo Securities, LLC
|
|
[
·
]
|
|
|
|
|
|
Total
|
|
[
·
]
|
SCHEDULE II
Schedule of Free Writing Prospectuses included in the Disclosure Package
2
SCHEDULE III
List of Persons and Entities Subject to Lock-up
ARD Holdings S.A.
Paul Coulson
3
EXHIBIT A
FORM[S] OF LOCK-UP AGREEMENT[S]
4
ANNEX I
[Letterhead of Ardagh Group S.A.]
ARDAGH GROUP S.A.
Public Offering of Shares
[
·
], 2017
[Name and Address of Officer or Director Requesting Waiver]
Dear Mr./Ms. [Name]:
This letter is being delivered to you in connection with the offering by Ardagh Group S.A., a company incorporated under the laws of Luxembourg (the “Company”) of [
·
] shares of Class A common shares, par value of €0.01 each (“A Shares”), of the Company and the lock-up letter dated [
·
], 2017 (the “Lock-up Letter”), executed by you in connection with such offering, and your request for a [waiver][release] dated [
·
], 2017, with respect to [
·
] A Shares (the “Specified Shares”).
Citigroup Global Markets Inc. hereby agrees to [waive][release] the transfer restrictions set forth in the Lock-up Letter, but only with respect to the Specified Shares, effective [
·
], 20[
·
](1);
provided
,
however
, that such [waiver][release] is conditioned on the Company announcing the impending [waiver][release] by press release through a major news service at least two business days before effectiveness of such [waiver][release]. This letter will serve as notice to the Company of the impending [waiver][release].
Except as expressly [waived][released] hereby, the Lock-up Letter shall remain in full force and effect.
|
|
Yours very truly,
|
|
|
[Signature of Citigroup Global Markets Inc. Representative]
|
|
|
[Name of Citigroup Global Markets Inc. Representative]
|
cc: Company
(1)
Insert date of anticipated waiver or release which generally will be not less than three business days after the date of this letter.
5
EXHIBIT B
FORM OF PRESS RELEASE
ARDAGH GROUP S.A.
[Date]
Ardagh Group S.A.
(the “Company”) announced today that Citigroup Global Markets Inc., the lead book-running manager in the Company’s recent public sale of [
·
] shares of Class A common shares is [waiving][releasing] a lock-up restriction with respect to [
·
] of the Company’s Class A common shares held by [certain officers or directors][an officer or director] of the Company. The [waiver][release] will take effect on [
·
], 20[
·
], and the shares may be sold on or after such date.
This press release is not an offer for sale of the securities in the United States or in any other jurisdiction where such offer is prohibited, and such securities may not be offered or sold in the United States absent registration or an exemption from registration under the United States Securities Act of 1933, as amended.
6
EXHIBIT C
FORM OF OPINION OF COMPANY COUNSEL
7
EXHIBIT D
FORM OF OPINION OF LUXEMBOURG COUNSEL
8
EXHIBIT E-1
FORM OF COMFORT LETTER
(Company)
9
EXHIBIT E-2
FORM OF COMFORT LETTER
(Rexam)
10
EXHIBIT E-3
FORM OF COMFORT LETTER
(Ball)
11
Exhibit 3.1
ARTICLES OF ASSOCIATION
OF
ARDAGH GROUP S.A.
TABLE OF CONTENTS
|
INTERPRETATION
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1.
|
Definitions
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|
|
|
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FORM, NAME, DURATION AND REGISTERED OFFICE
|
|
|
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|
2.
|
Form and Name
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3.
|
Duration
|
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|
4.
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Registered Office
|
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CORPORATE OBJECTS
|
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5.
|
Corporate Objects
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SHARES
|
|
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6.
|
Share Capital and Rights Attaching to Shares
|
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|
7.
|
Power to Issue Shares
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8.
|
Variation of Rights Attaching to Shares
|
|
|
9.
|
Power of the Company to Purchase or otherwise Acquire its own Shares
|
|
|
10.
|
Suspension and/or Waiver of Voting Right; Voting by Incapacitated Holders
|
|
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11.
|
Statements of Share Ownership
|
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REGISTRATION OF SHARES
|
|
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12.
|
Register of Shareholders
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13.
|
Transfer of Shares
|
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14.
|
Conversion of Class B Common Shares
|
|
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15.
|
Compulsory Transfer of Shares
|
|
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|
ALTERATION OF SHARE CAPITAL
|
|
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16.
|
Power to Alter Capital
|
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DIVIDENDS AND LEGAL RESERVE
|
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17.
|
Dividends
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18.
|
Legal Reserve
|
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MEETINGS OF SHAREHOLDERS
|
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19.
|
General Meetings
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20.
|
Record Date For Shareholder Notice; Voting.
|
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21.
|
Convening of General Meetings
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22.
|
Participation by telephone or video conference
|
|
|
23.
|
Quorum at General Meetings
|
|
|
24.
|
Voting on Ordinary and Special Resolutions
|
|
|
25.
|
Instrument of Proxy
|
|
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26.
|
Adjournment of General Meeting
|
|
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|
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DIRECTORS AND OFFICERS
|
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27.
|
Number of Directors
|
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28.
|
Election of Directors
|
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29.
|
Classes of Directors
|
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30.
|
Term of Office of Directors
|
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31.
|
Removal of Directors
|
|
|
32.
|
Vacancy in the Office of Director
|
|
|
33.
|
Remuneration of Directors
|
|
|
34.
|
Directors to Manage Business
|
|
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35.
|
Powers of the Board of Directors
|
|
|
36.
|
Appointment of Chairman and Secretary
|
|
|
37.
|
Appointment, Duties and Remuneration of Officers
|
|
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38.
|
Indemnification of Directors and Officers
|
|
|
39.
|
Binding Signatures
|
|
|
|
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|
|
MEETINGS OF THE BOARD OF DIRECTORS
|
|
|
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|
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40.
|
Board Meetings
|
|
|
41.
|
Notice of Board Meetings
|
|
|
42.
|
Participation by telephone or video conference
|
|
|
43.
|
Quorum at Board Meetings
|
|
|
44.
|
Board to Continue in the Event of Vacancy
|
|
|
45.
|
Written Resolutions
|
|
|
46.
|
Validity of Acts of Directors
|
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|
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|
|
CORPORATE RECORDS
|
|
|
|
|
|
47.
|
Minutes of the Meetings of the Shareholders
|
|
|
48.
|
Minutes of the Meetings of the Board
|
|
|
49.
|
Place Where Corporate Records Kept
|
|
|
50.
|
Service of Notices
|
|
|
|
|
|
|
FINANCIAL YEAR
|
|
|
|
|
|
51.
|
Financial Year
|
|
|
AUDITOR
|
|
|
|
|
|
52.
|
Appointment of Auditor
|
|
|
|
|
|
|
VOLUNTARY WINDING-UP AND DISSOLUTION
|
|
|
|
|
|
53.
|
Winding-Up
|
|
|
|
|
|
|
CHANGES TO CONSTITUTION
|
|
|
|
|
|
54.
|
Changes to Articles
|
|
|
55.
|
Governing Law
|
|
INTERPRETATION
1.
Definitions
1.1
In these Articles, the following words and expressions shall, where not inconsistent with the context, have the following meanings, respectively:
|
Acquiror
|
|
has the meaning ascribed in Article 15.1;
|
|
|
|
|
|
Acquiror Expert
|
|
has the meaning ascribed in Article 15.1;
|
|
|
|
|
|
Acquiror Purchase Price
|
|
has the meaning ascribed in Article 15.2;
|
|
|
|
|
|
Act
|
|
the Luxembourg law of 10 August 1915 pertaining to commercial companies, as amended from time to time;
|
|
|
|
|
|
Affected Class B common share
|
|
has the meaning ascribed in Article 14.4;
|
|
|
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|
|
Affiliate
|
|
with respect to a person, means any person directly or indirectly controlling, controlled by or under common control with such person;
|
|
|
|
|
|
Articles
|
|
means these articles, as amended from time to time in accordance with Article 54;
|
|
|
|
|
|
Article 15 Notice
|
|
has the meaning ascribed in Article 15.1;
|
|
|
|
|
|
Auditor
|
|
means one or more independent auditors (
réviseurs d’enterprises
) appointed in accordance with these Articles and includes an individual, company or partnership;
|
|
|
|
|
|
Board
|
|
the board of directors appointed or elected from time to time pursuant to these Articles;
|
|
|
|
|
|
Chairman
|
|
the chairman of the Board;
|
1
|
Class A common shares
|
|
has the meaning ascribed in Article 6.1;
|
|
|
|
|
|
Class B common shares
|
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has the meaning ascribed in Article 6.1;
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clear days
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in relation to the period of a notice, that period excluding the day when the notice is given or deemed to be given and the day for which it is given or on which it is to take effect;
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Common Shares
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|
has the meaning ascribed in Article 6.1;
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Company
|
|
the company for which these Articles are approved and confirmed;
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Compulsory Acquisition Notice
|
|
has the meaning ascribed in Article 15.2;
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Control
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with respect to any person, means the possession, directly or indirectly, by another person of the power to direct or cause the direction of the management and policies of such first person, whether through the ownership of voting securities, by contract or otherwise
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Conversion
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has the meaning ascribed in Article 14.2;
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Conversion Trigger
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has the meaning ascribed in Article 14.3;
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Depository
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has the meaning ascribed in Article 12.4;
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Director
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a director of the Company;
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EUR
|
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the single currency of participating member states of the European Union and the lawful currency for the time being of Luxembourg;
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Fair Market Value
|
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has the meaning ascribed in Article 9.6;
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Family Member
|
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with respect to any natural person who is a Pre-IPO Equity Interest Holder, such person’s spouse,
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2
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domestic partner, parents, step parents, grandparents, lineal descendants, siblings and lineal descendants of siblings. Lineal descendants includes adopted persons and stepchildren.
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indemnified party
|
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has the meaning ascribed in Article 38.1;
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Luxembourg
|
|
has the meaning ascribed in Article 4.1;
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notice
|
|
written notice as further provided in these Articles unless otherwise specifically stated;
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Notice of Objection
|
|
has the meaning ascribed in Article 15.3;
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notice to the Company
|
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written notice addressed to the Secretary or another officer identified by the Company to Shareholders from time to time, delivered to the registered office of the Company by hand or mail, or to the Company by facsimile or electronic mail (with customary proof of confirmation that such notice has been transmitted).
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Officer
|
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any person appointed as an officer of the Company by the Board, with such title, powers and duties as designated by resolution of the Board in accordance with Article 37;
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Ordinary Resolution
|
|
a resolution adopted at an ordinary general meeting (including the annual general meeting) with the quorum set forth in Article 23.1 and the majority set forth in Article 24.1;
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Parent
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ARD Holdings S.A. and any successors thereto;
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Permitted Entity
|
|
(a) a Permitted Trust solely for the benefit of (i) a Pre-IPO Equity Interest Holder, (ii) one or more Family Members of such Pre-IPO Equity Interest Holder and/or (iii) any other Permitted Entity of such
|
3
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Pre-IPO Equity Interest Holder;
(b) any general partnership, limited partnership, limited liability company, corporation or other entity exclusively owned by (i) a Pre-IPO Equity Interest Holder, (ii) one or more Family Members of such Pre-IPO Equity Interest Holder and/or (iii) any other Permitted Entity of such Pre-IPO Equity Interest Holder;
(c) the personal representative of the estate of a Pre-IPO Equity Interest Holder upon the death of such Pre-IPO Equity Interest Holder solely to the extent such individual or entity is acting in the capacity as personal representative of such estate;
(d) a revocable living trust, which revocable living trust is itself a Permitted Trust, following the death of the natural person grantor of such trust, solely to the extent that such shares are held in such trust pending distribution to the beneficiaries designated in such trust, all of whom are Qualified Holders; and
(e) a guardian or conservator of a Qualified Holder who has been adjudged disabled, incapacitated, incompetent or otherwise unable to manage his own affairs by a court of competent jurisdiction, solely in that guardian’s or conservator’s capacity as such.
Except as explicitly provided for in these Articles, a Permitted Entity of a Pre-IPO Equity Interest Holder shall not cease to be a Permitted Entity of that Pre-IPO Equity Interest Holder solely by reason of his death.
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Permitted Transfer
|
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any transfer of a Class B common share to a Qualified Holder.
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Permitted Trust
|
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a trust where each trustee is (a) a Pre-IPO Equity Interest Holder, (b) a Family Member of a Pre-IPO
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4
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Equity Interest Holder, or (c) a professional (including an attorney or accountant) in the business of providing trustee services, including private professional fiduciaries, trust companies and bank trust departments.
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person
|
|
any individual, corporation, partnership, joint venture, limited liability company, trust or other incorporated or unincorporated organisation or any other entity, including a governmental entity or authority;
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Pre-IPO Equity Interest
|
|
a beneficial direct or indirect equity interest in (i) Parent, including as a holder of a beneficial equity interest in any corporation, partnership, limited liability company or similar business entity that holds the beneficial interest in shares in Parent, or (ii) any Subsidiary of Parent, including as a holder of a beneficial equity interest in any corporation, partnership, limited liability company or similar business entity that holds the beneficial interest in shares in such Subsidiary.
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Pre-IPO Equity Interest Holder
|
|
a person who, as of the date of the closing of the initial public offering of Class A common shares, is a beneficial owner (and thus ignoring and excluding any holder who is a nominee for the benefit of a beneficial owner, no such nominee being a Pre-IPO Equity Interest Holder for these purposes) of a Pre-IPO Equity Interest, including any natural person who has transferred his Pre-IPO Equity Interest to a Permitted Entity as of such date.
|
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Purchase Price
|
|
has the meaning ascribed in Article 15.3;
|
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Qualified Holder
|
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(i) Parent or any Subsidiary of Parent (or any successor to Parent or any of its Subsidiaries), or (ii) any Pre-IPO Equity Interest Holder or any Family Member or Permitted Entity of such Pre-IPO Equity Interest Holder.
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5
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Register of Shareholders
|
|
the register of shareholders referred to in these Articles;
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Relevant Shareholder
|
|
has the meaning ascribed in Article 14.5;
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Remaining Holder Expert
|
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has the meaning ascribed in Article 15.3;
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Reorganisation Event
|
|
an event in which the shareholders of Parent and/or other Subsidiaries of Parent (or any successors thereto) will receive direct ownership in a number of Class B common shares or Class A common shares (in proportion to their respective ownership interest in Parent and/or other Subsidiaries of Parent), whether by dividend, distribution, exchange offer or other means; provided that the aggregate number of Class B common shares received by such shareholders in such event shall be substantially the same as or fewer than (adjusting for fractional shares) the number of the Class B common shares owned by Parent and any Subsidiaries of Parent (or any successors thereto) immediately prior to the date of such event;
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Remaining Holders
|
|
has the meaning ascribed in Article 15.1;
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Remaining Shares
|
|
has the meaning ascribed in Article 15.1;
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Secretary
|
|
the person appointed as secretary of the Company by the Board, including any deputy or assistant secretary and any person appointed by the Board to perform any of the duties set forth in Article 36.2 and specifically entrusted by resolution to the Secretary;
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Share Capital in Issue
|
|
the sum of the aggregate par value of the issued Common Shares, taking into account that the par value of each Class A common share is EUR 0.01 and the par value of each Class B common share is EUR 0.10;
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Shareholder
|
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any person registered in the Register of Shareholders as the holder of shares in the Company;
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Special Resolution
|
|
a resolution adopted at an extraordinary general meeting with the quorum set forth in Article 23.2 and
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6
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the majority set forth in Article 24.2;
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Subsidiary
|
|
an incorporated or unincorporated entity in which another person (i) has a majority of the shareholders’ or members’ voting rights or (ii) has the right to appoint or remove a majority of the members of the administrative, management or supervisory body and is at the same time a shareholder in or member of such entity;
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Transfer
|
|
has the meaning ascribed in Article 13.6;
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Treasury Share
|
|
a share of the Company that was or is treated as having been acquired and held by the Company and has been held (or is treated as having been held) continuously by the Company since it was so acquired and has not been cancelled.
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1.2
In these Articles, where not inconsistent with the context:
(a)
words denoting the plural number include the singular number and
vice versa
;
(b)
words denoting the masculine gender include the feminine and neuter genders;
(c)
the word:
(i)
“may” shall be construed as permissive;
(ii)
“shall” shall be construed as imperative; and
(iii)
“including” shall be deemed to be followed by the words “without limitation”;
(d)
a reference to statutory provision shall be deemed to include any amendment or re-enactment thereof;
(e)
the word “corporation” means a legal entity (
personne morale
);
7
(f)
unless otherwise provided herein, words or expressions used in these Articles and defined in the Act shall bear the same meaning in these Articles as in the Act.
1.3
In these Articles expressions referring to writings shall, unless the contrary intention appears, include facsimile, printing, lithography, photography, electronic mail and other modes of representing words in visible form.
1.4
Headings used in these Articles are for convenience only and are not to be used or relied upon in the construction hereof.
FORM, NAME, DURATION AND REGISTERED OFFICE
2.
Form and Name
The Company’s legal name is “Ardagh Group S.A.” and it is a public limited liability company (
société anonyme
).
3.
Duration
The Company is incorporated for an unlimited duration.
4.
Registered Office
4.1
The registered office of the Company is established in the City of Luxembourg, Grand Duchy of Luxembourg (“
Luxembourg
”). It may be transferred within Luxembourg by a resolution of the Board, which may amend the Articles accordingly.
4.2
If the Board determines that extraordinary political or military developments or events have occurred or are imminent and that these developments or events would interfere with the normal activities of the Company at its registered office, or with the ease of communication between such office and persons abroad, the registered office may be temporarily transferred abroad until the complete cessation of these extraordinary circumstances. Such temporary measures shall have no effect on the nationality of the Company which, notwithstanding the temporary transfer of its registered office, will remain a Luxembourg incorporated company. Such temporary measures will be taken by the Board and notified to the Shareholders of the Company.
8
CORPORATE OBJECTS
5.
Corporate Objects
5.1
The corporate objects of the Company are to hold, directly or indirectly, equity or other interests in other persons, including its Subsidiaries, and take all actions as are necessary or useful to realise these objects.
5.2
The Company has the power to carry out the following actions:
(a)
the acquisition, holding, management and disposal, in any form, by any means, directly or indirectly, of participations, rights and interests in, and obligations of, Luxembourg and non-Luxembourg companies, partnerships or other incorporated or non-incorporated entities;
(b)
the acquisition by purchase, subscription, assumption or in any other manner and the transfer by sale, exchange or in any other manner of equity securities, bonds, debentures, notes and other securities or financial instruments of any kind and contracts thereon or related thereto;
(c)
the ownership, administration, development and management of a portfolio of assets, including real estate assets and the assets referred to in paragraphs (a) and (b) above;
(d)
the holding, acquisition, disposal, development, licensing or sublicensing, and management of, or the investment in, any patents or other intellectual property rights of any nature or origin as well as the rights deriving therefrom;
(e)
the issuance of debt and equity securities in any currency and in any form including by way of:
(i)
the issue of shares, notes, bonds, debentures or any other form of debt or equity security and in any manner, whether by way of private placement, public offering or otherwise; and
(ii)
borrowing from any third party, including banks, financial institutions, or other person whether or not affiliated with the Company;
9
(f)
to the extent permitted under Luxembourg law, the provision of any form of equity or debt funding or any other form of financial assistance in any currency and whether or not financed by any of the methods mentioned in (e) above and whether subordinated or unsubordinated, to any person including to the Company’s subsidiaries, Affiliates and/or any other persons that may or may not be Shareholders or Affiliates of the Company;
(g)
the giving of guarantees or the creation of any form of encumbrance or security over all or any of its assets to guarantee or secure its own obligations or those obligations and undertakings of any other companies or persons that may or may not be Shareholders or Affiliates, and, generally, for its own benefit and/or the benefit of any other persons that may or may not be Shareholders or Affiliates of the Company; and
(h)
taking any actions designed or intended to protect the Company against credit, currency exchange, interest rate or other risks.
5.3
The objects and powers described in this Article 5 are to be interpreted in their broadest sense and any transaction or agreement which is entered into by the Company that is not inconsistent with the foregoing objects or powers will be deemed to be within the scope of such objects or powers.
SHARES
6.
Share Capital and Rights Attaching to Shares
6.1
The authorised share capital of the Company is EUR [number], divided into (i) [number] Class A common shares, with a par value of EUR 0.01 each (the “
Class A common shares
”), and (ii)
[number]
of Class B common shares, with a par value of EUR 0.10 per share (the “
Class B common shares
,” and, together with the Class A common shares, the “
Common Shares
”).The Company shall at all times reserve and keep available out of its authorised but unissued share capital such number of Class A common shares as shall from time to time be sufficient to effect the conversion of all Class B common shares outstanding from time to time in accordance with Article 14.
6.2
The issued share capital of the Company on the date of the adoption of these Articles is EUR
[number]
divided into [number] Class B common shares. The
10
Company may issue additional shares, including Class A common shares in accordance with these Articles.
6.3
The holders of Class A common shares shall, subject to these Articles:
(a)
be entitled to one vote per Class A common share (being one vote per EUR 0.01 of the share capital);
(b)
not be entitled to convert the Class A common shares into any other class of shares;
(c)
be entitled, with holders of Class B common shares in accordance with Article 17.2, to such dividends or other distributions as the Company may from time to time declare;
(d)
in the event of a winding-up or dissolution of the Company, whether voluntary or involuntary or for the purpose of a reorganisation or otherwise, be entitled, with holders of Class B common shares in accordance with Article 53.2, to the surplus assets of the Company; and
(e)
generally be entitled to enjoy all of the rights attaching to shares.
6.4
The holders of Class B common shares shall, subject to these Articles:
(a)
be entitled to ten votes per Class B common share (being one vote per EUR 0.01 of the share capital as each Class B common share has a par value of EUR 0.10);
(b)
(i) be entitled, at the option of the holder exercised in accordance with Article 14, to convert each Class B common share into one Class A common share at any time, and (ii) be subject to mandatory conversion, as provided in Article 14;
(c)
be entitled, with holders of Class A common shares in accordance with Article 17.2, to such dividends or other distributions as the Company may from time to time declare;
(d)
in the event of a winding-up or dissolution of the Company, whether voluntary or involuntary or for the purpose of a reorganisation or otherwise be entitled, with
11
holders of
Class A common shares in accordance with Article 53.2, to the surplus assets of the Company; and
(e)
generally be entitled to enjoy all of the rights attaching to shares.
6.5
The holders of Class A common shares and Class B common shares will vote together on all matters, unless otherwise required by the Act or these Articles.
7.
Power to Issue Shares
7.1
Without prejudice to any special rights conferred on the Shareholders of any existing shares or class of shares (which special rights shall not be affected, modified or abrogated except with such consent or sanction as is provided in these Articles), and subject to the provisions of the Act, any share may be issued either at par or at a premium and with such rights and/or restrictions, whether in respect of dividends, voting, return of capital, transferability or otherwise, as the Company may from time to time direct.
7.2
Any share premium created upon the issue of shares pursuant to Article 7.1 shall be available for repayment to the Shareholders, the payment of which shall be within the absolute discretion of the Board. Without limiting the foregoing, the Board is authorised to use any share premium for the purpose of making any share premium repayment to Shareholders or repurchasing shares of the Company.
7.3
(a) The Board is generally and unconditionally authorised for a period of five years from
[date of the instrument of restatement of the Articles]
, to issue Common Shares, to grant options to subscribe for Common Shares and to issue any other instruments convertible into Common Shares up to a maximum of the authorised but as yet unissued share capital of the Company to such persons and on such terms as the Board determines in its absolute discretion. The Board may set the subscription price for the Common Shares so issued, as well as determining the form of consideration to be paid for any such Common Shares which may include (i) cash, including the setting off of claims against the Company that are certain, due and payable, (ii) payment in kind, and (iii) reallocation of the share premium, profit reserves or other reserves of the Company. The Board is also authorised to issue Common Shares free of charge within the limitations of Article 32-3 (5bis) of the Act.
(b) Notwithstanding the foregoing, the Board may not pursuant to Article 7.3(a) issue Class B common shares in excess of the [ ] Class B common shares issued on
[date of the instrument of restatement of the Articles]
except:
12
(i)
In connection with stock splits or share dividends (also known as bonus issues) being made to all holders of outstanding Common Shares in accordance with Article 17.2;
(ii)
In connection with a Reorganisation Event, provided that the number of Class B common shares issued in such Reorganisation Event is substantially the same as or less than the number of Class B common shares received by the Company in such Reorganisation Event as treasury shares which are to be cancelled by the Company in due course; or
(iii)
In connection with the conversion, prior to initial public offering of the Company’s Class A common shares, of the Convertible Loan Note that the Company issued to ARD Group Finance Holdings S.A., on September 16, 2016.
7.4
The Board is authorised to withdraw or limit the Luxembourg statutory preemption provisions upon the issuance of Common Shares pursuant to the authority conferred by Article 7.3.
7.5
The Board shall be authorised to appoint, in its absolute discretion, a representative, to appear before a public notary in Luxembourg for the purpose of amending the Articles to reflect the changes resulting from the increases to the issued share capital of the Company in accordance with Article 7.3.
8.
Variation of Rights Attaching to Shares
Where
a resolution of an extraordinary general meeting is such as to change the respective rights of the Class A common shares or the Class B common shares, the Special Resolution must, in order to be valid, fulfil the quorum and majority requirements with respect to each such class of shares.
9.
Power of the Company to Purchase or otherwise Acquire its own Shares
9.1
The Company may purchase, acquire or receive its own shares for cancellation or to hold them as Treasury Shares within the limits, and subject to the conditions, set forth in the Act and other applicable laws and regulations.
9.2
Pursuant to and in conformity with the provisions of Article 49-2 of the Act, and in conformity with all other applicable laws and regulations, (including any rules and regulations of any stock market, exchange or securities settlement system on which the shares are traded, as may be applicable to the Company), the Company is authorised to purchase, acquire, receive and/or hold shares, including the Common Shares, from time to time, provided that:
13
(a)
the shares hereby authorised to be purchased shall all be fully paid-up issued shares in the Company;
(b)
the maximum number of shares purchased, acquired or received by the Company shall be such that the aggregate nominal value or the aggregate accounting par value of the shares held by persons other than the Company does not fall below the minimum issued share capital prescribed by the Act;
(c)
the maximum price which may be paid for each share shall not exceed the Fair Market Value (as defined in Article 9.6);
(d)
the minimum price which may be paid for each share shall be the par value of the share;
(e)
the acquisitions, including the shares previously acquired by the Company and held by it, and shares acquired by a person acting in his own name but on the Company’s behalf, may not have the effect of reducing the net assets of the Company below the amount mentioned in paragraphs (1) and (2) of Article 72-1 of the Act.
9.3
This authority, (unless previously revoked, varied or renewed by the general meeting) is granted for a period of five years from
[date of the instrument of restatement of the Articles]
.
9.4
This authority relates only to:
(a)
one or more market purchases (being a purchase of Class A common shares by the Company of shares offered for sale by any Shareholder on any stock exchange on which the Class A common shares are traded), as the Board shall determine without such acquisition offer having to be made to all Shareholders; and
(b)
purchases effected in circumstances other than those referred to in Article 9.4(a), where an offer on the same terms has been made by the Company to all Shareholders in a similar situation.
9.5
The Board shall be authorised to appoint, in its absolute discretion, a representative, to appear before a public notary in Luxembourg for the purpose of amending the Articles to reflect the changes resulting from the cancellation of any shares
14
repurchased in accordance with the terms of this Article 9, if such election is made to cancel the shares.
9.6
For the purposes of this Article 9, “
Fair Market Value
” means, in respect of any share:
(a)
the actual price at which the Company effects a purchase of its own shares pursuant to an announced open market repurchase program on the New York Stock Exchange or, if the Company’s shares are not listed on the New York Stock Exchange, on such other securities exchange on which the Company’s shares are then listed or traded; or
(b)
in the case of any repurchase of shares that is not effected pursuant to an announced open market repurchase program on the New York Stock Exchange or another securities exchange, the fair market value determined in good faith by an independent auditor (
réviseur d’entreprises
) appointed by the Board on the basis of such information and facts as available to, and deemed relevant by, the independent auditor.
9.7
Voting rights attaching to a Treasury Share shall be suspended and shall not be exercised by the Company while it holds such Treasury Shares and, except where required by the Act, all Treasury Shares shall be excluded from the calculation of any percentage or fraction of the share capital, or shares, of the Company for determining the quorum and majority requirements of any general meeting. The aforementioned restrictions on voting rights shall apply to shares issued by the Company and held by direct and indirect subsidiaries, in accordance with Article 49bis of the Act.
10.
Suspension and/or Waiver of Voting Right; Voting by Incapacitated Holders
10.1
The Board may suspend the right to vote of any Shareholder if such Shareholder does not fulfil his obligations under the Articles (as in effect on [
the date of the instrument of restatement of the Articles])
or any deed of subscription or deed of commitment entered into by such Shareholder.
10.2
Any Shareholder may individually decide not to exercise, temporarily or definitively, such Shareholder’s right to vote all or any of such Shareholder’s shares. Any such Shareholder shall be bound by such waiver, which shall be enforceable by the
15
Company from the date of the Company’s receipt of notice from such Shareholder of such waiver.
10.3
If the voting rights of one or more Shareholders are suspended in accordance with this Article 10 or a Shareholder has temporarily or permanently waived such Shareholder’s voting right in accordance with this Article 10, such Shareholders shall receive notice of and may attend any general meeting of Shareholders but the shares with respect to which such Shareholder does not have, or has waived, voting rights in accordance with this Article 10 shall not be taken into account for determining whether the quorum and majority vote requirements are satisfied.
10.4
A Shareholder of unsound mind, or in respect of whom an order has been made by any court having jurisdiction (whether in Luxembourg or elsewhere) in matters concerning mental disorder, may vote, by such Shareholder’s committee, receiver, guardian or other person appointed by that court and any such committee, receiver, guardian or other person may vote by proxy. Evidence to the satisfaction of the Board of the authority of the person claiming to exercise the right to vote shall be deposited at the registered office of the Company or at such other place as is specified in accordance with these Articles for the deposit of proxies, not less than forty-eight (48) hours before the time appointed for holding the meeting or adjourned meeting at which the right to vote is exercised, failing which the right to vote shall not be exercised.
11.
Statements of Share Ownership
At the request of a Shareholder, the Company shall issue a statement of share ownership evidencing the number of Common Shares registered in such Shareholder’s name in the Register of Shareholders on the date of such
statement.
REGISTRATION OF SHARES
12.
Register of Shareholders
12.1
The shares are and will remain in registered form (
actions nominatives
) and the Shareholders are not permitted to request the conversion of their shares into bearer form.
16
12.2
The Board shall cause to be kept a Register of Shareholders and shall enter therein the particulars required by the Act.
12.3
The Company shall be entitled to treat the registered holder of any share as the absolute owner thereof and accordingly shall not be bound to recognise any equitable claim or other claim to, or interest in, such share on the part of any other person.
12.4
Where shares are recorded in the Register of Shareholders on behalf of one or more persons in the name of a securities settlement system or the operator of such system, or in the name of a professional depository of securities, or any other depository (such system, professional or other depository, being referred to as “
Depository
”) or of a sub-depository designated by one or more Depositories, the Company, subject to it having received from the Depository with which those shares are kept in account satisfactory evidence of the underlying ownership of Common Shares by those persons and their authority to vote the shares, will permit those persons to exercise the rights attaching to those shares, including admission to and voting at general meetings. A notice may be given by the Company to the holders of shares held through a Depository by giving such notice to the Depository whose name is listed in the Register of Shareholders in respect of the shares, and any such notice shall be regarded as proper notice to all underlying holders of shares. Notwithstanding the foregoing, the Company shall make payments, by way of dividends or otherwise, in cash, shares or other assets as permitted pursuant to these Articles, only to the Depository or sub-depository recorded in the Register of Shareholders or in accordance with its instructions, and such payment by the Company shall release the Company from any and all obligations in respect of such payment.
12.5
In the case of joint holders of shares, the Company shall treat the first named holder on the Register of Shareholders as having been appointed by the joint holders to receive all notices and to give a binding receipt for any dividend(s) payable in respect of such share(s) on behalf of all joint holders, without prejudice to the rights of the other holders to information as set out in the Act.
13.
Transfer of Shares
13.1
Any Shareholder may, subject to the provisions of the Act and the restrictions contained in these Articles, transfer all or any of such Shareholder’s shares by written instrument of transfer; provided that shares listed or admitted to trading on a
17
stock exchange may be transferred in accordance with the rules and regulations of such exchange.
13.2
Any Transfer (as defined below) of a Class B common share that is not first determined by the Board to be a Permitted Transfer shall be a breach of these Articles with the effect that (i) such Class B common share shall immediately be deemed to be an Affected Class B common share with respect to which a Conversion Trigger described in Article 14.3(a)(ii) occurred at the time of the Transfer and (ii) the Board may suspend the voting rights of such Class B common share until such Class B common share is converted in accordance with Article 14.5.
13.3
At such time as a Qualified Holder of a Class B common share ceases to be a Qualified Holder without first effecting a conversion of such Class B common share into a Class A common share, there shall be a breach of these Articles with the effect that (i) such Class B common share shall immediately be considered an Affected Class B common share with respect to which a Conversion Trigger described in Article 14.3(a)(ii) occurred at the time such person ceased to be a Qualified Holder and (ii) the Board may suspend the voting rights of such Class B common share until such Class B common share is converted in accordance with Article 14.5.
13.4
If a holder of Class B common shares wishes to Transfer any such shares, he shall provide notice to the Company, (a) specifying the number of Class B common shares he wishes to Transfer and the identity of the transferee(s) of such shares (which shall not exceed four transferees for any one share), (b) representing to the Company that the proposed Transfer is a Permitted Transfer and (c) describing such holder’s basis for such representation. In determining whether any such Transfer is a Permitted Transfer, the Board may request such additional information from the holder of such Class B common share as it determines is reasonably necessary to enable the Board to make such determination. The Board shall determine whether such Transfer meets (or does not meet) the definition of a Permitted Transfer, which determination will be final and binding on the holder of such share. The Board shall not be required to give any reasons for its determination, and the Company shall not be held liable for any losses resulting from any such determination or any delay by the Board in making such determination.
13.5
The Board may, from time to time, establish such additional policies and procedures (not in violation of the Act or applicable laws or regulations, including these Articles)
18
relating to the Transfer of Class B common shares as the Board may determine necessary or advisable in connection therewith.
13.6
For purposes of this Article 13, a “Transfer” of any Class B common share (a) means any direct or indirect sale, assignment, transfer, conveyance or other transfer or disposition of such Class B common share or any legal or beneficial interest in such share, whether or not for value and whether voluntary or involuntary or by operation of law, including the transfer of voting control with respect to such share by proxy or otherwise, and (b) shall be deemed to occur with respect to a Class B common share held by a Qualified Holder if there occurs any act or circumstance that would result in such person ceasing to be a Qualified Holder, including as a result of the transfer, in one transaction or a series of transactions, of voting securities in such person or the right to elect or appoint the directors or managers of such person to persons who are not otherwise Qualified Holders. “Transferred” shall have a correlative meaning.
Notwithstanding the foregoing, the following shall not be considered a “Transfer” for such purposes:
(a)
the granting of a revocable proxy to directors or officers of the Company in connection with actions to be taken at general meetings of the Company;
(b)
the entering into a voting trust, agreement or arrangement solely with other holders of Class B common shares, which voting trust, agreement or arrangement is disclosed in writing to the Secretary of the Company;
(c)
any change in the trustees or the persons having or exercising voting control over Class B common shares held by any Permitted Entity, so long as, after such change, such Permitted Entity continues to be a Qualified Holder;
(d)
the pledging or granting of a security interest over a Class B common share in connection with a bona fide loan or indebtedness transaction and, following acceleration but prior to enforcement, the exercise of or entitlement to voting rights in respect of such share, by the pledgee or holder of such other security interest to the extent provided for in such pledge or security interest, excluding, for the avoidance of doubt, any sale, assignment, transfer, conveyance or other transfer or disposition of such Class B common share as a result of the enforcement of such pledges or security interests;
(e)
any existing or replacement pledges of or security interests in Class B common Shares by Parent or any Subsidiary of Parent pursuant to the security documents relating to the 7.125%/7.875% Senior Secured Toggle Notes due 2023 and the 6.625%/7.375% Senior Secured Toggle Notes due 2023 issued by ARD Finance S.A. (or any renewal, extension, substitution, refinancing or
19
replacement of such notes)
and, following acceleration but prior to enforcement, the exercise of or entitlement to voting rights in respect of such Class B common shares, by the pledgee or holder of such other security interest to the extent provided for in such pledge or security interest, excluding, for the avoidance of doubt, any sale, assignment, transfer, conveyance or other transfer or disposition of such Class B common shares as a result of the enforcement of such pledges or security interests;
(f)
a transfer to the Acquiror pursuant to Article 15; or
(g)
any transfer to the Company.
14.
Conversion of
Class B Common
Shares
14.1
All Class B common shares are issued as repurchasable shares (
actions rachetables
) pursuant to the terms of Article 49-8 of the Act.
14.2
Following the occurrence of a Conversion Trigger, each Class B common share will be converted into one Class A common share at the time and in accordance with the procedures set forth in this Article 14 (the “
Conversion
”).
14.3
For purposes of this Article 14, a “
Conversion Trigger
” will occur:
(a)
with respect to any Class B common share, (i) at any time at the option of the holder of such Class B common share, exercised by notice to the Company, or (ii) upon the holder of such Class B common share ceasing to be a Qualified Holder; or
(b)
with respect to all Class B common shares, at such time as the Register of Shareholders reflects (or the Board otherwise determines) that Qualified Holders cease to own, directly or indirectly, in the aggregate, Class B common shares constituting at least ten per cent (10%) of the aggregate number of then issued Common Shares, excluding for purposes of such calculation any Treasury Shares.
14.4
The Board shall effect the Conversion of any Class B common share in respect of which a Conversion Trigger shall have occurred (the “
Affected Class B common share
”) no later than 14 days following the receipt by the Company of notice to the Company (in the case of the Conversion Trigger described in Article 14.3(a)) or the Company becoming aware of the occurrence of the Conversion Trigger (in the case of a Conversion Trigger described in Article 14.3(b)), provided that the Company shall not be liable for any losses incurred by any person resulting from any delay in effecting any Conversion.
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14.5
The Conversion will be implemented in the following manner:
(a)
each Affected Class B common share will be repurchased by the Company for its par value, with no cash payment being made to a Shareholder whose Class B common share is being so repurchased (the “
Relevant Shareholder
”);
(b)
the Company shall issue one Class A common share to the Relevant Shareholder for each Affected Class B common share repurchased and the purchase price for each Affected Class B common share shall remain outstanding as a claim of the Relevant Shareholder against the Company which claim will be set off against the subscription price payable by the Relevant Shareholder for each Class A common share;
(c)
upon set-off of the claim pursuant to Article 14.5(b) in satisfaction of the subscription price in respect of each Class A common share the Company shall credit EUR 0.09 to the share premium account of the Company and EUR 0.01 to the share capital account of the Company in respect of each Class A common share; and
(d)
each Affected Class B common share that is repurchased by the Company will be cancelled by the Company and not available for reissuance.
14.6
In furtherance (but not in limitation) of the provisions of this Article 14, the Chairman for the time being (or some other person appointed by the Company for this purpose) shall be deemed to have been appointed attorney of each of the Relevant Shareholders with full power to execute, complete and deliver, in the name and on behalf of each Relevant Shareholder any closing documents and deliverables as the Board may reasonably require so as to implement a Conversion.
14.7
The Board shall be authorised to appoint, in its absolute discretion, a representative, to appear before a public notary in Luxembourg for the purpose of amending the Articles to reflect the changes resulting from the cancellation of any Class B common shares repurchased, and the corresponding issue of any Class A common shares issued, in accordance with the terms of this Article 14.
14.8
The Company may, from time to time, establish such additional policies and procedures (not in violation of the Act or applicable laws or regulations, including these Articles) relating to the conversion of Class B common shares as the Board may determine necessary or advisable in connection therewith.
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15.
Compulsory Transfer of Shares
15.1
If, at any time, a person is or becomes, directly or indirectly, the owner of seventy-five per cent (75%) or more of the number of issued shares of the Company, such person (the “Acquiror”) may require the holders (the “Remaining Holders”) of the remaining issued shares of the Company (the “Remaining Shares”) to sell their shares to him. The Acquiror shall exercise his right to acquire such shares by giving notice to the Company (an “Article 15 Notice”) that specifies: (a) the identity and contact details of the Acquiror, (b) the price that the Acquiror will pay for the Remaining Shares (being the fair market value thereof as determined in accordance with this Article 15) or, if not yet determined, the identity of the independent investment banking firm of international reputation that will be engaged by the Acquiror (the “Acquiror Expert”) to determine the fair market value of the Remaining Shares; (c) the Acquiror’s sources of payment of the purchase price for the Remaining Shares (which payment must be in the form of cash), and evidence that the Acquiror has secured funds sufficient to make such payment; and (d) subject to this Article 15, any other conditions governing the purchase of the shares.
15.2
Promptly (but, in any event, within fourteen (14) days) following receipt by the Company of an Article 15 Notice, the Company shall (a) serve notice in writing on all the Remaining Holders (the “Compulsory Acquisition Notice”), indicating that the Acquiror has served an Article 15 Notice and outlining the consequences of such service pursuant to this Article 15, (b) the name of the Acquiror Expert retained by the Acquiror to determine the fair market value of the Remaining Shares, and (c) if the Acquiror has so notified the Company, the price determined by the Acquiror Expert as the fair market value of the Remaining Shares (the “Acquiror Purchase Price”). If the Acquiror Purchase Price has not been determined by the Acquiror Expert on the date of the delivery by the Acquiror of the Article 15 Notice, the Acquiror shall cause the Acquiror Expert to determine the Acquiror Purchase Price within 21 days of such date, and shall promptly (but in any event within three days)) following such determination, give notice to the Company thereof. The Company shall promptly thereafter serve notice in writing on all the Remaining Holders indicating the Acquiror Purchase Price.
15.3
If Remaining Holders holding at least 10% of the Remaining Shares object to the Acquiror Purchase Price, such Remaining Holders may provide written notice of such objection to the Acquiror (the “Notice of Objection”), with a copy to the Company, no later than 10 days after the date on which the Company notified the Remaining Holders of the Acquiror Purchase Price. If no Notice of Objection is provided to the Acquiror within such time period, the Acquiror Purchase Price shall
22
be final and binding on the Acquiror and all the Remaining Holders and shall be the “Purchase Price” for purposes of this Article 15. The Acquiror and the objecting Remaining Holders may attempt to agree on the fair market value of the Remaining Shares, and any fair market value agreed by the Acquiror and Remaining Holders holding a majority of the Remaining Shares held by all objecting Remaining Holders shall be final and binding on the Acquiror and all the Remaining Holders and shall the “Purchase Price” for purposes of this Article 15. Failing agreement on such fair market value within 15 days of the date of the Notice of Objection, the objecting Remaining Holders may engage, at the expense of the Company, an investment banking firm of international reputation (the “Remaining Holder Expert”) to determine the fair market value of the Remaining Shares. The Remaining Holder Expert shall determine such fair market value within 35 days of the date of the Notice of Objection. If the difference between the fair market value determined by the Remaining Holder Expert and the Acquiror Purchase Price is not more than 10% of the higher valuation, the purchase price for the Remaining Shares shall be the average of the Acquiror Purchase Price and the fair market value determined by the Remaining Holder Expert. If the difference between the fair market value determined by the Remaining Holder Expert and the Acquiror Purchase Price is greater than 10% of the higher valuation, the Acquiror Expert and the Remaining Holder Expert shall select and engage, at the expense of the Company, a third investment banking firm of international reputation to determine the fair market value of the Remaining Shares within 65 days of the date of the Notice of Objection. The fair market value of the Remaining Shares shall be the average of the fair market value of the two closest valuations of the three investment banking firms, and such valuation shall be final and binding on the Acquiror and all the Remaining Holders (the fair market value as determined by the Acquiror Expert, as agreed by the Acquiror and the objecting Remaining Holders in accordance with the second sentence of this Article 15.3 or as determined by the investment banking firms in accordance with this Article 15.3, the “
Purchase Price
”). Subject to execution by the Acquiror Expert, the Remaining Holder Expert and the third investment banking firm of customary confidentiality agreements, the Company shall provide each of them with such financial and other information as they reasonably request to enable them to make their determinations under this Article 15; provided that all three investment banking firms shall receive the same financial and other information. Promptly following the determination of the Purchase Price, the Company shall serve notice in writing on all the Remaining Holders indicating the Purchase Price.
15.4
Upon the service of the Compulsory Acquisition Notice, or, if later, the date on which the Remaining Holders are notified by the Company of the Purchase Price, subject to Article 15.5, each of the Remaining Holders shall be required to sell all of the
23
Remaining Shares held by them to the Acquiror, and, subject to Article 15.4, Article 15.5 and the conditions set forth in the Article 15 Notice, the Acquiror shall be bound to acquire all of such shares, for the Purchase Price, and, in furtherance thereof, pay to the Company at the closing of the sale and purchase of the Remaining Shares, for remittance to the Remaining Holders, the consideration to be paid by the Acquiror for all the Remaining Shares.
15.5
In selling his Remaining Shares to the Acquiror and accepting the Purchase Price therefor, each Remaining Holder shall represent (or be deemed by virtue of Article 15.7 to represent) to the Acquiror that (i) he has full right, title and interest to such shares, (ii) has all necessary power and authority, and has taken all necessary actions to sell such shares to the Acquiror, and (iii) such shares are free and clear of all liens or encumbrances except those imposed by applicable law or these Articles. Other than the foregoing representations, no Remaining Holder shall be required to make any representations to the Acquiror in connection with the sale of his Remaining Shares under this Article 15. If any Remaining Holder does not (or cannot) make any such representations, or the Acquiror determines before or after its acquisition of the Remaining Shares held by such Remaining Holder that such representations are incorrect, then the Acquiror may, at his option, determine not to acquire such Remaining Holder’s Remaining Shares or, if he has already acquired such shares, pursue any remedies he has against such Remaining Holder for breach of such representations, as applicable.
15.6
The closing of such sale and purchase shall occur as promptly as practicable after the service of the Compulsory Acquisition Notice or the determination of the Purchase Price (whichever is later), provided that no Remaining Holder shall be required to sell, and the Acquiror shall not be required to purchase, any Remaining Shares if such purchase or sale would violate any applicable law, regulation or order.
15.7
Upon the service of the Compulsory Acquisition Notice, the Company shall be required to take all such actions as may reasonably be requested by the Acquiror to enable it to implement the acquisition by it, and registration in the Register of Shareholders in its name (and/or those of its designee(s)), of all of the Remaining Shares on the terms and conditions set forth in this Article 15.
15.8
In furtherance (but not in limitation) of the provisions of this Article 15, the Chairman for the time being (or some other person appointed by the Company for this purpose) shall be deemed to have been appointed attorney of each of the Remaining Holders with full power (and obligation, if so requested by the Acquiror)
24
to execute, complete and deliver, in the name and on behalf of each Remaining Holder (a) a transfer in favor of the Acquiror and/or its designee(s) of all of the shares held by such Remaining Holder against delivery to the Company of the Purchase Price for such Remaining Holder’s remaining Shares and (b) subject to Article 15.4, such other closing documents and deliverables as the Acquiror may reasonably require so as to vest all rights and entitlements in or in respect of the shares held by such Remaining Holder in the Acquiror and/or its designee(s) (including a power of attorney in favor of the Acquiror and/or its designee(s) to vote and exercise all rights in respect of such shares pending the registration in the Register of Shareholders of the Acquiror and/or its designee(s) as the holder(s) of such shares).
15.9
The Acquiror, on delivery to the Company of the consideration to which the Remaining Holders are entitled in accordance with this Article 15, shall be deemed to have obtained a good discharge for such consideration and, on delivery of such consideration and execution and delivery of the closing documents required to be executed by the Acquiror to effect its purchase of the Remaining Shares, the Acquiror shall be entitled to require the Company to register its name (or that of its designee) in the Register of Shareholders as the holder by transfer of each of the Remaining Shares.
15.10
The Company shall, as soon as practicable after its receipt of the consideration for the Remaining Shares and the other closing documents and deliverables required to effect the transfer of such shares, deliver to each Remaining Holder the consideration to which such Remaining Holder is entitled in accordance with this Article 15 or, if in the opinion of the Board it is not reasonably practical to do so at such time, pay the same into a separate bank account, in the name of the Company and shall hold such consideration in trust for the applicable Remaining Holder until such time as the Board considers it appropriate to release such consideration.
15.11
If, at the end of the 180th day after delivery by the Acquiror of the Article 15 Notice, the sale of all of the Remaining Shares has not been completed because of the failure of the Acquiror to take any action required to effect such sale within such time period, the Article 15 Notice shall be deemed null and void, the Acquiror shall no longer have the right (or obligation) to purchase the Remaining Shares under this Article 15, and each Remaining Holder and the Company shall be released from their obligations under this Article 15 in respect of the sale of the Remaining Shares.
25
ALTERATION OF SHARE CAPITAL
16.
Power to Alter Capital
16.1
The Company may from time to time by Special Resolution and subject to Articles 8 and 54.3 and to any greater quorum or majority requirements as may be provided for in the Act, increase, divide, consolidate, subdivide, change the currency denomination of, diminish or otherwise alter or reduce its share capital in any manner permitted by the Act or these Articles, provided that nothing herein shall affect or diminish the authority granted to the Board under Article 7, Article 9 or Article 14.
16.2
If, following any alteration or reduction of share capital, a Shareholder would receive a fraction of a share, the Board may, subject to the Act, address such issue in such manner as it thinks fit, including by disregarding such fractional entitlement.
DIVIDENDS, OTHER DISTRIBUTIONS AND LEGAL RESERVE
17.
Dividends and Other Distributions
17.1
Subject to the provisions of the Act, the general meeting may declare dividends by Ordinary Resolution, but no dividend shall exceed the amount recommended by the Board.
17.2
No dividend or other distribution may be declared or paid in respect of Class B common shares unless a dividend or distribution in the same amount per share is declared or paid at the same time in respect of the Class A common shares, and vice versa, without regard to the par value of the shares. With respect to share dividends (also known as bonus issues), holders of Class B common shares shall receive a relevant number of Class B common shares corresponding to the amount of the dividend and holders of Class A common shares shall receive a relevant number of Class A common shares corresponding to the amount of the dividend.
17.3
The Board may, subject to these Articles and in accordance with the Act, declare an interim dividend (
acompte sur dividendes
) if it determines that it is appropriate to pay such an interim dividend based on the amount of distributable reserves of the Company. Any such interim dividend will be paid to the Shareholders, in proportion to the number of shares held by them, in accordance with Article 17.2, and such dividend may be paid in cash or wholly or partly in specie in which case the Board
26
may fix the value for distribution
in specie
of any assets. Any interim dividends declared by the Board and paid during a financial year will be put to the Shareholders at the following general meeting to be declared as final. The Company shall not be required to pay interest with respect to any dividend or distribution declared by the Company, regardless of when or if paid.
17.4
Subject to applicable laws and regulations, in order for the Company to determine which Shareholders shall be entitled to receipt of any dividend, the Board may fix a record date, which record date will be the close of business (or such other time as the Board may determine) on the date determined by the Board. In the absence of a record date being fixed, the record date for determining Shareholders entitled to receipt of any dividend shall the close of business in Luxembourg on the day the dividend is declared.
17.5
The Board may propose to the general meeting such other distributions (in cash or
in specie
) to the Shareholders as may be lawfully made out of the assets of the Company.
17.6
Any dividend or other payment to any particular Shareholder or Shareholders may be paid in such currency or currencies as may from time to time be determined by the Board and any such payment shall be made in accordance with such rules and regulations (including in relation to the conversion rate or rates) as may be determined by the Board in relation thereto.
17.7
Any dividend or other payment which has remained unclaimed for five (5) years from the date the dividend or other payment became due for payment shall, if the Board so resolves, be forfeited and cease to remain owing by the Company. The payment by the Board of any unclaimed dividend or other moneys payable in respect of a share into a separate account shall not constitute the Company a trustee in respect thereof.
18.
Legal Reserve
The Company shall be required to allocate a sum of at least five per cent (5%) of its annual net profit to a legal reserve, until such time as the legal reserve amounts to ten per cent (10%) of the Share Capital in Issue. If and to the extent that this legal reserve falls below such ten per cent (10%) amount, the Company shall allocate a sum of at least five per cent (5%) of its annual net profit to restore the legal reserve to the minimum amount required by law.
27
MEETINGS OF SHAREHOLDERS
19.
General Meetings
19.1
An annual general meeting shall be held in each year within six (6) months following the end of the financial year at the Company’s registered office or at such other place in Luxembourg as may be specified in the convening notice.
19.2
For at least eight (8) days prior to the annual general meeting, each Shareholder may obtain a copy of the annual accounts of the Company for the preceding financial year at the registered office of the Company and inspect all documents of the Company required by the Act to be made available by the Company for their inspection.
19.3
Other general meetings may be held at such place and time as may be specified in the respective convening notices of the meeting whenever such a meeting is necessary.
20.
R
ecord Date For S
hareholder
Notice; Voting.
20.1
In order for the Company to determine which Shareholders are entitled to notice of or to vote at any meeting of Shareholders or any adjournment thereof, the Board may fix, in advance, a record date, which shall not be more than sixty (60) days before the date of such meeting. If the Board does not fix a record date, the record date for determining Shareholders entitled to notice of or to vote at a meeting of Shareholders shall be at the close of business in Luxembourg on the day that is not a Saturday, Sunday or Luxembourg public holiday next preceding the day on which notice is given.
20.2
A determination of Shareholders of record entitled to notice of or to vote at a meeting of Shareholders shall apply to any adjournment of the meeting; provided, however, that the Board may, acting in its sole discretion, fix a new record date for the adjourned meeting.
21.
Convening of General Meetings
21.1
The Board may convene a general meeting whenever in its judgment such a meeting is necessary. The Board may delegate its authority to call the general meeting to the Chairman or any committee of the Board or to one or more board
28
members by resolution. The convening notice for every general meeting shall contain the agenda, be communicated to Shareholders in accordance with the provisions of the Act on at least eight (8) clear days’ notice, unless otherwise provided in the Act, and specify the time and place of the meeting and the general nature of the business to be transacted. The convening notice need not bear the signature of any Director or Officer of the Company.
21.2
The Board shall convene a general meeting within a period of one month upon notice to the Company from Shareholders representing at least ten per cent (10%) of the Share Capital in Issue on the date of such notice. In addition, one or more Shareholders who together hold at least ten per cent (10%) of the Share Capital in Issue on the date of the notice to the Company may require that the Company include on the agenda of such general meeting one or more additional items. Such notice to the Company shall be sent at least five (5) clear days prior to the holding of such general meeting. The rights of Shareholders under this Article 21.2 to require that a general meeting be convened or an item be included on the agenda for a general meeting shall be subject to compliance by such Shareholders with Article 21.3.
21.3
To be in proper form for purposes of the actions to be taken pursuant to Article 21.2, the notice to the Company given pursuant to Article 21.2 must set forth as to each Shareholder(s) requesting the general meeting or the addition of an item to the agenda for a general meeting: (i) a brief description of, as applicable, the purpose of the general meeting or the business desired to be brought before the general meeting, the text of the proposal or business (including the text of any resolutions proposed for consideration and, in the event that such business includes a proposal to amend these Articles, the language of the proposed amendment) and the reasons for conducting such business at the general meeting; (ii) the name and record address of such Shareholder(s) and the name and address of the beneficial owner, if any, on whose behalf the business is being proposed, and (iii) the class or series and number of shares of the Company which are registered in the name of or beneficially owned by such Shareholder(s) or beneficial owner (including any shares as to which such Shareholder(s) or beneficial owner has a right to acquire ownership at any time in the future); (iv) a description of all derivatives, swaps or other transactions or series of transactions engaged in, directly or indirectly, by such Shareholder(s) or beneficial owner, the purpose or effect of which is to give such Shareholder(s) or beneficial owner economic risk similar to ownership of shares of the Company; and (v) a description of all agreements, arrangements, understandings or relationships between such Shareholder(s) or beneficial owner and any other person or persons (including their names) in connection with the
29
proposal of such business by such Shareholder(s) and any material interest of such Shareholder(s) or beneficial owner in such business.
21.4
No business may be transacted at a general meeting, other than business that is properly brought before the general meeting by or at the direction of the Board, including upon the request of any Shareholder or Shareholders in accordance with the Act or these Articles. Except as otherwise provided by law, the chairman of the general meeting at which the business proposed by a Shareholder is to be transacted shall have the power and duty to determine whether such Shareholder has complied with this Article 21 in proposing such business, and if any such proposal was not made in accordance with this Article 21, to declare that such proposed business shall not be transacted.
22.
Participation by telephone or
video
conference
The Board may organise participation of the Shareholders in general meetings by telephone or
video conference and participation in such a meeting shall constitute presence in person at such meeting. The participation in a meeting by these means is deemed equivalent to a participation in person at the general meeting.
23.
Quorum at General Meetings
23.1
At any ordinary general meeting (including the annual general meeting) the holders of in excess of one-third (1/3
rd
) of the Share Capital in Issue present in person or by proxy shall form a quorum for the transaction of business.
23.2
At any extraordinary general meeting the holders of in excess of one half (1/2) of the Share Capital in Issue present in person or by proxy shall form a quorum for the transaction of business.
24.
Voting on Ordinary and Special Resolutions
24.1
Subject to the Act, any question proposed for the consideration of the Shareholders at any ordinary general meeting shall be decided by the affirmative votes of a simple majority of the votes validly cast on such resolution by Shareholders entitled to vote in accordance with these Articles and in the case of an equality of votes the resolution shall fail.
30
24.2
Subject to the Act, any question proposed for the consideration of the Shareholders at any extraordinary general meeting shall be decided by the affirmative votes of at least two-thirds (2/3
rd
) of the votes validly cast on such resolution by Shareholders entitled to vote in accordance with these Articles.
25.
Instrument of Proxy
25.1
A Shareholder may appoint a proxy by an instrument in writing in such form as the Board may approve from time to time and make available to Shareholders to represent such Shareholder at the general meetings of Shareholders.
25.2
The Shareholders may vote in writing (by way of a voting form provided by the Company) on resolutions submitted to the general meeting, provided that the voting form includes (a) the name, first name, address and the signature of the relevant Shareholder, (b) the indication of the shares for which the Shareholder will exercise such right, (c) the agenda as set forth in the convening notice and (d) the voting instructions (approval, refusal, abstention) for each point of the agenda.
25.3
The appointment of a proxy or submission of a completed voting form must be received by the Company no later than forty-eight (48) hours prior to the scheduled meeting date (or such other time as may be determined by the Company and notified in writing to the Shareholders) at the registered office or at such other place or in such manner as is specified in the notice convening the meeting or in any instrument of proxy or voting form sent out by the Company in relation to the meeting at which the person named in the appointment proposes to vote, and appointment of a proxy or the submission of a voting form which is not received in the manner so permitted shall be invalid.
25.4
A Shareholder who is the holder of two or more shares may appoint more than one proxy to represent such Shareholder and vote on his behalf in respect of different shares.
25.5
The decision of the chairman of any general meeting as to the validity of any appointment of a proxy or any voting form shall be final.
26.
Adjournment of General Meeting
26.1
The chairman of a general meeting is entitled, at the request or with the authorisation of the Board, to adjourn a general meeting, while in session, for four
31
weeks. The chairman shall so adjourn the meeting at the request of one or more Shareholders representing at least one tenth (1/10
th
) of the Share Capital in Issue. No general meeting may be adjourned more than once. Any adjournment of a general meeting shall cancel any resolution passed at such meeting prior to such adjournment.
26.2
Unless the meeting is adjourned to a specific date, place and time announced at the meeting being adjourned, which date, place and time will be publicly announced by the Company, fresh notice of the date, place and time for the resumption of the adjourned meeting shall be given to each Shareholder entitled to attend and vote at the meeting in accordance with these Articles. No business shall be transacted at any adjourned meeting other than business which might properly have been transacted at the meeting had the adjournment not taken place.
DIRECTORS AND OFFICERS
27.
Number of Directors
The Board shall consist of no fewer than three (3) Directors and no more than fifteen (15) Directors, with the number of Directors within that range being determined by the Board from time to time. The Board consists of [
··
] Directors as of
[date of the instrument of restatement of the Articles
].
28.
Election of Directors
28.1
The Board or one or more Shareholders who together hold at least ten per cent (10%) of the Share Capital in Issue on the date of the notice to the Company may nominate any person for election as a Director. Where any person, other than a person proposed for re-election or election as a Director by the Board, is to be nominated for election as a Director, notice to the Company, complying with the requirements of this Article 28.1, must be given of the intention to nominate such person. Where a person is nominated for election as a Director other than by the Board:
(a)
such notice to the Company must set forth: (i) in respect of each person whom the Shareholder proposes to nominate for election as a Director, (A) the name, age, business address and residence address of the person, (B) the principal occupation or employment of the person, (C) the class or series and number of shares of the Company owned beneficially or of record by the person and (D)
32
any other information relating to the person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of Directors pursuant to applicable laws or regulations or that the Company may reasonably request in order to determine the eligibility of such person to serve as a Director of the Company; (ii) the name and record address of each Shareholder giving the notice and the name and address of the beneficial owner, if any, on whose behalf the person is being nominated; and (iii) the class or series and number of shares of the Company which are registered in the name of or beneficially owned by such Shareholder or beneficial owner (including any shares as to which any such Shareholder or beneficial owner has a right to acquire ownership at any time in the future); (iv) a description of all derivatives, swaps or other transactions or series of transactions engaged in, directly or indirectly, by such Shareholder or beneficial owner, the purpose or effect of which is to give such Shareholder or beneficial owner economic risk similar to ownership of shares of the Company; and (v) a description of all agreements, arrangements, understandings or relationships between such Shareholder or beneficial owner and any other person or persons (including their names) in connection with the proposed nomination by such Shareholder and any material relationship between such Shareholder or beneficial owner and the person proposed to be nominated for election]; and
(b)
such notice must be accompanied by a written consent of each person whom the Shareholder proposes to nominate for election as a Director to being named as a nominee and to serve as a Director if elected.
28.2
Except as otherwise provided by law, the chairman of the general meeting at which Directors are to be elected shall have the power and duty to determine whether a proposal to elect Directors made by a Shareholder was made in accordance with this Article 28, and if any such proposal was not made in accordance with this Article 28, to declare that such proposal shall be disregarded.
28.3
Except in the case of a vacancy in the office of Director filled by the Board, as provided for in Article 32, the Company may elect Directors by Ordinary Resolution. In a contested election where the number of persons validly proposed for election or re-election to the Board exceeds the number of seats to be filled on the Board at the applicable general meeting, Directors shall be elected by the votes cast by Shareholders present in person or by proxy at such meeting, such that the persons receiving the most affirmative votes (up to the number of Directors to be elected) shall be elected as Directors at such general meeting, and the affirmative
33
vote of a simple majority of the votes cast by Shareholders present in person or by proxy at such meeting shall not be required to elect Directors in such circumstance. Shareholders shall not be entitled to cumulate their votes in such circumstance, but may only cast a for or against vote for each candidate for each share they own.
29.
Classes of Directors
The Directors shall be divided into three classes designated Class I, Class II and Class III. The Board shall designate the Directors who will initially serve in each of Class I, Class II and Class III. Each class of Directors shall consist, as nearly as possible, of one third (1/3
rd
) of the total number of Directors constituting the entire Board.
30.
Term of Office of Directors
At the first general meeting which is held after the date of adoption of these Articles for the purpose of electing Directors, the Class I Directors shall be elected for a three year term of office, the Class II Directors shall be elected for a two year term of office and the Class III Directors shall be elected for a one year term of office. At each succeeding annual general meeting, successors to the class of Directors whose term expires at that annual general meeting shall be elected for a three year term of office. If the number of Directors is changed, any increase or decrease shall be apportioned by the Board among the classes so as to maintain the number of Directors in each class as near to equal as possible, and any Director of any class elected to fill a vacancy shall hold office for a term that shall coincide with the remaining term of the other Directors of that class, but in no case shall a decrease in the number of Directors shorten the term of any Director then in office. A Director shall hold office until the annual general meeting for the year in which his term expires, subject to his office being vacated pursuant to Article 32.
31.
Removal of Directors
31.1
The mandate of any Director may be terminated, at any time and with or without cause, by the general meeting of Shareholders by means of an Ordinary Resolution in favour of such termination.
31.2
If a Director is removed from the Board under Article 31.1, the Shareholders may by means of an Ordinary Resolution fill the vacancy at the meeting at which such Director is removed, provided that any nominee for the vacancy who is proposed by Shareholders shall be proposed in accordance with Article 28.1.
34
32.
Vacancy in the Office of Director
32.1
The office of Director shall be vacated if the Director:
(a)
is removed from office pursuant to these Articles or is prohibited from being a Director by law;
(b)
is or becomes bankrupt, or makes any arrangement or composition with his creditors generally;
(c)
is or becomes of unsound mind or dies; or
(d)
resigns his office by notice to the Company.
32.2
The Board shall have the power to appoint any person as a Director to fill a vacancy on the Board occurring for any reason other than where the appointment of a Director to fill a vacancy has been made by the Shareholders in accordance with Article 31.2. A Director so appointed shall be appointed to the class of Directors that the Director he is replacing belonged to, provided that such Director shall hold office only until ratification by the Shareholders of his appointment at the next following general meeting and, if such general meeting does not ratify the appointment, such Director shall vacate his office at the conclusion thereof.
33.
Remuneration of Directors
The remuneration (if any) of the Directors shall be determined by the Board subject to ratification by Shareholders at a general meeting of Shareholders. Such remuneration shall be deemed to accrue from day to day. Any Director who holds an executive office (including for this purpose the office of Chairman) or who serves on any Board committee, or who otherwise performs services that in the opinion of the Board are outside the scope of the ordinary duties of a director, may be paid such additional remuneration for such additional services as the Board may determine. The Directors may also be paid all travel, hotel and other expenses properly incurred by them in attending and returning from Board meetings or general meetings, or in connection with the business of the Company or their duties as Directors generally.
35
34.
Directors to Manage Business
The business of the Company shall be managed and conducted by or under the direction of the Board. In managing the business of the Company, the Board may exercise all such powers of the Company as are not, by the Act or by these Articles, required to be exercised by the Company in general meeting.
35.
Powers of the Board of Directors
Without limiting the powers of the Board as described in Article 34, the Board shall represent and bind the Company vis-à-vis third parties and may:
(a)
appoint, suspend, or remove any manager, secretary, clerk, agent or employee of the Company and may fix their remuneration and determine their duties;
(b)
exercise all the powers of the Company to borrow money and to mortgage or charge or otherwise grant a security interest in its undertaking, property and uncalled capital, or any part thereof, and may authorise the issuance by the Company of debentures, debenture stock and other securities whether outright or as security for any debt, liability or obligation of the Company or any third party;
(c)
appoint one or more persons to the office of chief executive officer of the Company, who shall, subject to the control of the Board, supervise and administer all of the general business and affairs of the Company;
(d)
appoint a person to act as manager of the Company’s day-to-day business (
délégué à la gestion journalière
) and may entrust to and confer upon such manager such powers and duties as it deems appropriate for the management and conduct of such daily management and affairs of the Company;
(e)
by power of attorney, appoint any one or more persons, whether nominated directly or indirectly by the Board, to be an attorney of the Company for such purposes and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the Board) and for such period and subject to such conditions as it may think fit and any such power of attorney may contain such provisions for the protection and convenience of persons dealing with any such attorney as the Board may think fit and may also authorise any such attorney to sub-delegate all or any of the powers, authorities and discretions so vested in the attorney;
36
(f)
delegate any of its powers (including the power to sub-delegate) to one or more committees of one or more persons appointed by the Board which may consist partly of non-Directors, provided that every such committee shall consist of a majority of Directors and shall conform to such directions as the Board shall impose on them, and the meetings and proceedings of any such committee shall be governed by the provisions of these Articles regulating the meetings and proceedings of the Board, so far as the same are applicable and are not superseded by directions imposed by the Board;
(g)
delegate any of its powers (including the power to sub-delegate) to any person on such terms and in such manner as the Board may see fit (not exceeding those vested in or exercisable by the Board);
(h)
present any petition and make any application in connection with the liquidation or reorganisation of the Company, take any action, both as plaintiff and as defendant before any court, obtain any judgments, decrees, decisions, awards and proceed therewith to execution, acquiesce in settlement, compound and compromise any claim in any manner determined by the Board to be in the interest of the Company;
(i)
in connection with the issue of any share, pay such commission and brokerage as may be permitted by law;
(j)
subject to the provisions of Article 33, provide benefits, whether by way of pensions, gratuities or otherwise, for any Director, former Director or other officer or former officer of the Company or to any person who holds or has held any employment with the Company or any of its Subsidiaries or associated companies or any predecessor of the Company or of any such Subsidiary or associated company and to any member of his family or any person who is or was dependent on him, and may set up, establish, support, alter, maintain and continue any scheme for providing all or any such benefits, and for such purposes any Director may be, become or remain a member of, or rejoin, any scheme and receive or retain for his own benefit all benefits to which such Director may be or become entitled thereunder, and the Board may authorise the payment out of the funds of the Company of any premiums, contributions or sums payable by the Company under the provisions of any such scheme in respect of any of the persons described in this Article 35(j); and
37
(k)
authorise any person or persons to act on behalf of the Company for any specific purpose and in connection therewith to execute any deed, agreement, document or instrument on behalf of the Company.
36.
Appointment of Chairman and Secretary
36.1
A Chairman may be appointed by the Board from among its members from time to time for such term as the Board deems fit. Unless otherwise determined by the Board, the Chairman shall preside at all meetings of the Board and the Shareholders. In the absence of the Chairman from any meeting of the Board or the Shareholders, the Board shall designate an alternative person to serve as the chairman of such meeting.
36.2
A Secretary may be appointed by the Board from time to time for such term as the Board deems fit. The Secretary need not be a Director and shall be responsible for (i) sending convening notices of general meetings as per the instruction of the Board, (ii) calling Board meetings as per the instruction of the Chairman, (iii) keeping the minutes of the meetings of the Board and of the Shareholders and (iv) any other duties entrusted from time to time to the Secretary by the Board.
37.
Appointment, Duties and Remuneration of Officers
37.1
The Board may appoint such Officers (who may or may not be Directors) as the Board may determine for such terms as the Board deems fit.
37.2
The Officers shall have such powers and perform such duties in the management, business and affairs of the Company as may be designated by resolution of the Board from time to time.
37.3
The Officers shall receive such remuneration as the Board may determine.
38.
Indemnification of Directors and Officers
38.1
The Directors, Chairman, Secretary and other Officers (such term to include any person appointed to any committee by the Board) acting in their capacities as such or, at the request of the Company, as a director, officer, employee or agent of another person, including any Subsidiary of the Company, or as the liquidator or trustee (if any) for the Company or any Subsidiary thereof, and every one of them (whether for the time being or formerly), and their heirs, executors and
38
administrators (each, an “indemnified party”), shall, to the extent possible under applicable law, be indemnified and held harmless by the Company from and against all actions, costs, charges, losses, damages and expenses which any of them incur or sustain by or by reason of any act performed or omitted to be performed by any Director, Chairman, Secretary or Officer in their capacities as such or in the other capacities described above, and, to the extent possible under applicable law, no Director, Chairman, Secretary or Officer shall be liable for the actions, omissions or defaults of any other indemnified party, or for the actions of any advisors to the Company or any other persons, including financial institutions, with whom any moneys or assets belonging to the Company are lodged or deposited for safe custody, or for insufficiency or deficiency of any security received by the Company in respect of any of its moneys or assets, or for any other loss, misfortune or damage which may happen in the course of their serving as a Director, Chairman, Secretary or Officer of the Company or, at the request of the Company, as a director, officer, employee or agent of another person, including any Subsidiary of the Company, or as the liquidator or trustee (if any) for the Company or any Subsidiary thereof, or in connection therewith, provided that these indemnity and exculpation provisions shall not extend to any matter in respect of any fraud or dishonesty, gross negligence, wilful misconduct or action giving rise to criminal liability in relation to the Company which may attach to any of the indemnified parties. Each Shareholder agrees to waive any claim or right of action such Shareholder might have, whether individually or by or in the right of the Company, against any Director, Chairman, Secretary or Officer on account of any action taken by such person, or the failure of such person to take any action in the performance of his duties with or for the Company or, at the request of the Company, any other person, provided that such waiver shall not extend to any matter in respect of any fraud or dishonesty, gross negligence, wilful misconduct or action giving rise to criminal liability in relation to the Company which may attach to such person.
38.2
The Company may, to the extent possible under applicable law, purchase and maintain insurance for the benefit of any Director or Officer against any liability (to the extent permitted by law) incurred by him under the Act in his capacity as a Director or Officer or indemnifying such Director or Officer in respect of any loss arising or liability attaching to him by virtue of any rule of law in respect of any negligence, default, breach of duty or breach of trust of which the Director or Officer may be guilty in relation to the Company or any Subsidiary thereof.
38.3
The Company may, to the extent possible under applicable law, advance moneys to an indemnified party for the costs, charges and expenses incurred by such indemnified party in defending any civil or criminal proceedings against such person,
39
on condition that such indemnified party shall repay the advance if any allegation of fraud or dishonesty in relation to the Company is proved against such person.
38.4
The rights conferred on indemnified parties under this Article 38 are contract rights, and any right to indemnification or advancement of expenses under this Article 38 shall not be eliminated or impaired by an amendment to these Articles after the occurrence of the act or omission with respect to which indemnification or advancement of expenses is sought.
38.5
The Company is authorised to enter into agreements with any indemnified party providing indemnification or advance of expenses rights to any such person, to the extent possible under applicable law.
39.
Binding Signatures
39.1
Towards third parties, the Company is in all circumstances committed either by the joint signatures of any two Directors or by the sole signature of the delegate of the Board acting within the limits of his powers.
MEETINGS OF THE BOARD OF DIRECTORS
40.
Board Meetings
40.1
The Board may meet for the transaction of business, adjourn and otherwise regulate its meetings as it sees fit. Each Director shall have one vote, and a resolution put to the vote at a Board meeting shall be carried by the affirmative votes of a majority of the votes cast and in the case of an equality of votes, the resolution shall fail and the Chairman of the meeting shall not have a casting vote.
40.2
Each Director present at a meeting of the Board shall, in addition to his or her own vote, be entitled to one vote in respect of each other Director not present at the meeting who shall have authorised such Director in respect of such meeting to vote for such other Director in the absence of such other Director.
40.3
Any such authority may relate generally to all meetings of the Board or to any specified meeting or meetings and must be in writing and may be sent by mail, facsimile or electronic mail (with customary proof of confirmation that such notice has been transmitted) or any other means of communication approved by the Board and may bear a printed or facsimile signature of the Director giving such authority.
40
The authority must be delivered to the Company for filing prior to or must be produced at the meeting at which a vote is to be cast pursuant thereto.
41.
Notice of Board Meetings
A Director may, and the Secretary on the requisition of a Director shall, at any time convene a Board meeting. Notice of a Board meeting shall be deemed to be duly given to a Director if it is given to such Director verbally (including in person or by telephone) or otherwise communicated or sent to such Director by mail or facsimile or electronic mail (with customary proof of confirmation that such notice has been transmitted) at such Director’s last known address or in accordance with any other instructions given by such Director to the Company for this purpose.
42.
Participation by telephone or video conference
Directors may participate in any meeting by video conference or by such telephonic or other communication facilities or means as permit all persons participating in the meeting to communicate with each other simultaneously, and participation in such a meeting shall constitute presence in person at such meeting.
43.
Quorum at Board Meetings
The quorum necessary for the transaction of business at a Board meeting shall be two Directors present in person.
44.
Board to Continue in the Event of Vacancy
The Board may act notwithstanding any vacancy in its number, provided that, if the number of Directors is less than the number fixed by the Act as the minimum number of directors, the continuing Director(s) shall, on behalf of the Board, summon a general meeting for the purpose of appointing new Directors to fill the vacancies or for the purpose of adopting any measures within the competence of the general meeting.
45.
Written Resolutions
A resolution signed by all the Directors, which may be in counterparts, shall be as valid as if it had been passed at a Board meeting duly called and constituted, such resolution to be effective on the date on which the resolution is signed by the last Director.
41
46.
Validity of Acts of Directors
All actions taken at any meeting of the Board or by any Director, notwithstanding that it is subsequently discovered that there was a defect in the appointment of a Director or that a Director was disqualified from holding office or had vacated office, shall be as valid as if such Director had been duly appointed, was qualified or had continued to be a Director and had been entitled to take any such action.
CORPORATE RECORDS
47.
Minutes of the Meetings of the Shareholders
47.1
The minutes of general meetings of Shareholders shall be drawn up and shall be signed by the Chairman of the general meeting.
47.2
Copies of or extracts from the minutes of the general meeting of Shareholders may be certified by the Chairman or the Secretary.
48.
Minutes of the Meetings of the Board
The minutes of any meeting of the Board, or extracts thereof, shall be signed by the Chairman or the member of the Board who presided at such meeting.
49.
Place Where Corporate Records Kept
Minutes prepared in accordance with the Act and these Articles shall be kept by the Secretary at the registered office of the Company.
50.
Service of Notices
50.1
A notice (including a notice convening a general meeting) or any other document to be served or delivered by the Company to Shareholders pursuant to these Articles may be served on or delivered to any Shareholder by the Company:
(a) by hand delivery to such Shareholder or his authorised agent (and in the case of a notice convening a general meeting, only if such Shareholder has individually agreed to receive notice in such manner);
42
(b) by mailing such notice or document to such Shareholder at his address as recorded in the Register of Shareholders (and in the case of a notice convening a general meeting, only if such Shareholder has individually agreed to receive notice in such manner);
(c) by facsimile telecommunication, when directed to a number at which such Shareholder has individually consented in writing to receive notices or documents from the Company (including a notice convening a general meeting);
(d) by electronic mail, when directed to an electronic mail address at which such Shareholder has individually consented in writing to receive notice or documents from the Company (including a notice convening a general meeting); or
(e)
by registered letter to such Shareholder at his address as recorded in the Register of Shareholders in respect of a notice convening a general meeting in circumstances where a Shareholder has not individually consented to receiving notice by other means of communication.
50.2.
Where a notice or document is served or delivered pursuant to Article 50.1(a), the service or delivery thereof shall be deemed to have been effected at the time such notice or document was delivered to the Shareholder or his authorised agent.
50.3.
Where a notice or document is served or delivered pursuant to Article 50.1(b), service or delivery thereof shall be deemed to have been effected at the expiration of forty- eight hours after such notice or document was mailed. In proving service or delivery it shall be sufficient to prove that the envelope containing such notice or document was properly addressed, stamped and mailed.
50.4.
Where a notice or document is served or delivered pursuant to Article 50.1(c) or Article 50.1(d), service or delivery thereof shall be deemed to be effected at the time the facsimile or electronic mail was sent, as evidenced by the records of the Company generated at such time and available to the recipient of such electronically transmitted notice or document upon his request.
50.5
Without prejudice to the provisions of Articles 50.1(b) and 50.3, if at any time by reason of the suspension or curtailment of postal services within Luxembourg, the Company is unable to convene a general meeting by notices sent through the mail, a general meeting may be convened by a notice advertised in at least one leading national daily newspaper in Luxembourg, filed with the register of commerce and companies and published on the
Recueil Electronique des Sociétés et Associations
at least fifteen
43
days before the affected general meeting. In such case, such notice shall be deemed to have been duly served on all Shareholders entitled thereto at noon on the day on which such advertisement shall appear. In any such case the Company shall send, from Luxembourg or elsewhere (as the Board in its opinion considers practical), confirmatory copies of the notice convening the general meeting at least eight days before the meeting by mail (or by facsimile or electronic mail in the case of Shareholders who have consented in writing to receive notices by facsimile or electronic mail as described in Article 50.1(c) and Article 50.1(d)) to those Shareholders whose registered addresses are outside Luxembourg or are in areas of Luxembourg unaffected by such suspension or curtailment of postal services. If at least eight days prior to the time appointed for the holding of the general meeting, the mailing of notices to Shareholders in Luxembourg, or any part thereof that was previously affected, has again (in the opinion of the Board) become practical, to the extent such Shareholders have not received notices convening such meeting by facsimile or electronic mail, the Company shall send confirmatory copies of the notice by mail to such Shareholders. The accidental omission to give any such confirmatory copy of a notice of a general meeting to, or the non-receipt of any such confirmatory copy by, any Shareholder (whether by mail or, if applicable, facsimile or electronic mail) shall not invalidate the proceedings at such general meeting, and no proof need be given that this formality has been complied with.
50.6.
Notwithstanding anything contained in this Article 50, the Company shall not be obliged to take account of or make any investigations as to the existence of any suspension or curtailment of postal services within or in relation to all or any part of any jurisdiction or other area other than Luxembourg.
FINANCIAL YEAR
51.
Financial Year
The financial year of the Company shall begin on 1 January and shall end on 31 December in each year.
44
AUDITOR
52.
Appointment of Auditor
52.1
The operations of the Company shall be supervised by one or several approved statutory auditors (
réviseur(s) d’entreprises agréé
) as applicable.
52.2
Subject to the Act, the Shareholders shall appoint the auditor(s) selected by the audit committee of the Company to hold office for such term as the Shareholders deem fit but not exceeding six (6) years or until a successor is appointed. The auditor shall be eligible for re-appointment.
52.3
The Auditor may be a Shareholder but no Director, Officer or employee of the Company shall, during his continuance in office, be eligible to act as an Auditor of the Company.
VOLUNTARY WINDING-UP AND DISSOLUTION
53.
Winding-Up
53.1
The Company may be dissolved at any time by the Shareholders by means of a Special Resolution. In the event of dissolution of the Company, liquidation shall be carried out by one or more liquidators, who may be natural or legal persons, appointed by the general meeting, which shall determine the powers and remuneration of such liquidators.
53.2
If the Company shall be dissolved and the assets available for distribution among the Shareholders shall be insufficient to repay the total paid up share capital of the Class A common shares and one-tenth (
1
/10) of the paid up share capital of the Class B common shares, such assets shall be distributed to the Shareholders in proportion to the number of shares held by them, without regard to the par value of their shares. If in a dissolution the assets available for distribution among the Shareholders shall be more than sufficient to repay the total paid up share capital of the Class A common shares and one-tenth (
1
/10) of the paid up share capital of the Class B common shares at the commencement of the dissolution, the excess shall be distributed among the Shareholders in proportion to the number of shares held by them at the commencement of the dissolution, without regard to the par value of their shares.
45
53.3
The liquidator may, with the sanction of the Shareholders by means of an Ordinary Resolution, divide amongst the Shareholders
in specie
or in kind the whole or any part of the assets of the Company (whether they shall consist of property of the same kind or not) and may, for such purpose, set such value as the liquidator deems fair upon any property to be divided as aforesaid and, subject to these Articles and the rights attaching to each share, may determine how such division shall be carried out as between the Shareholders or different classes of Shareholders. The determinations of the liquidator in respect of the distributions described in Article 53.2 and this Article 53.3 shall be final.
CHANGES TO CONSTITUTION
54.
Changes to Articles
54.1
No Article may be rescinded, altered or amended and no new Article may be made save in accordance with the Act and until it has been approved by the Shareholders by means of a Special Resolution or approved by the Board in accordance with these Articles.
54.2
The following provisions of these Articles may not be rescinded, altered or amended until such rescission, alteration or amendment has been approved by the affirmative vote of a simple majority of the votes validly cast by holders of Class A common shares voting as a class at an ordinary general meeting at which the holders of in excess of one-third (1/3) of the Class A common shares are present in person or by proxy and subject to any applicable greater quorum or majority requirements as may be provided for in the Act: Articles 6.4 and 6.5, Article 7.3(b), Article 10.1, Article 13, Article 14, Article 15, Article 17.2 and this Article 54, including in each case any related definitions, except to the extent any such rescission, alteration or amendment is intended to correct a manifest error or otherwise would not adversely affect the holders of Class A common shares.
54.3
Notwithstanding Article 7.1, except as provided in clauses (i) and (ii) of Article 7.3(b), Shareholders shall not, whether by granting authorisation to the Board to do so from authorised share capital or resolving upon such issuance at a general meeting, approve the issuance by the Company of Class B common shares unless such authorisation or issuance has been approved by the affirmative vote of a simple majority of the votes validly cast by holders of Class A common shares voting as a class at an ordinary general meeting at which the holders of in excess of one-third (1/3) of the Class A common shares are present in person or by proxy, subject
46
to any applicable greater quorum or majority requirements as may be provided for in the Act.
55.
Governing Law
55.1
All matters not governed by these Articles shall be determined in accordance with the laws of Luxembourg.
55.2
Notwithstanding anything contained in these Articles, the provisions of these Articles are subject to any applicable law and legislation, including the Act, except where these Articles contain provisions which are stricter than those required pursuant to any applicable law and legislation, including the Act.
55.3
Should any clause of these Articles be declared null and void, this shall not affect the validity of the other clauses of these Articles.
55.4
In the case of any divergences between the English and the French text, the English text will prevail.
47
Exhibit 10.1
REGISTRATION RIGHTS AGREEMENT (this “
Agreement
”), dated as of [
·
], 2017, by and between Ardagh Group S.A., a
société anonyme
incorporated under the laws of Luxembourg (the “
Company
”) and ARD Holdings S.A., a
société anonyme
incorporated under the laws of Luxembourg.
WHEREAS, the Company has filed a registration statement on Form F-1 (File No. 333-214684) under the Securities Act (as defined herein) with respect to the initial public offering
(“
Offering
”) of Class A common shares of the Company, par value €0.01 per share (the “
A
Shares
”);
WHEREAS,
following the Offering, the Company will have two classes of common shares, A Shares and Class B common shares of the Company, par value €0.10 per share (the “
B Shares
” and together with A Shares, the “
Shares
”);
WHEREAS, following the Offering, the Company presently expects that the Pre-IPO Equity Interest Holders (as defined herein) will receive B Shares and A Shares through a Reorganization Event (as defined herein);
WHEREAS,
the parties desire to set forth certain registration rights applicable to the Registrable Securities (as defined herein) held from time to time by the Eligible Shareholders (as defined herein) subject to the terms and conditions of this Agreement; and
NOW, THEREFORE, in consideration of the recitals and the mutual premises, covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
Definitions
In addition to capitalized terms defined elsewhere in this Agreement, the following capitalized terms shall have the following meanings when used in this Agreement:
“
Affiliate
” means, as to any specified Person, any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “
control
”, as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise. For purposes of this definition, the terms “
controlling
”, “
controlled by
” and “
under common control with
” have correlative meanings.
“
Agreement
” shall have the meaning set forth in the Preamble.
“
Articles
” means the amended and restated articles of incorporation of the Company.
1
“
Business Day
” means any day other than a Saturday, Sunday or other day in New York, New York or Luxembourg City, Luxembourg on which banking institutions are authorized or required by law or regulation to close.
“
Commission
” means the United States Securities and Exchange Commission and any successor agency performing comparable functions.
“
Company
” shall have the meaning set forth in the Preamble.
“
Demand Registrations
” shall have the meaning set forth in
Section 2.02(a)
.
“
Eligible Shareholder
” means a Qualified Holder that owns Registrable Securities and any Registration Rights Transferee, as set forth on Schedule 1 attached hereto, as amended from time to time.
“
Exchange Act
” means the United States Securities Exchange Act of 1934, as amended, or any successor United States Federal statute, and the rules and regulations of the Commission thereunder, as the same shall be in effect from time to time.
“
Family Member
” means, with respect to any natural person who is a Pre-IPO Equity Interest Holder, such person’s spouse, domestic partner, parents, step parents, grandparents, lineal descendants, siblings and lineal descendants of siblings. Lineal descendants includes adopted persons and stepchildren.
“
Governmental Authority
” means any regional, Federal, state or local legislative, executive or judicial body or agency, any court of competent jurisdiction, any department, political subdivision or other governmental authority or instrumentality, or any arbitral authority, in each case, whether domestic or foreign.
“
Indemnified Party
” shall have the meaning set forth in
Section 8.03
.
“
Indemnifying Party
” shall have the meaning set forth in
Section 8.03
.
“
Long-Form Demand Registration
” shall have the meaning set forth in
Section 2.01(b)
.
“
Losses
” shall have the meaning set forth in
Section 8.01
.
“
Other Shareholders
” shall have the meaning set forth in
Section 4.03
.
“
Parent
” means ARD Holdings S.A. and any successors thereto.
“
Permitted Entity
”
means (a) a Permitted Trust solely for the benefit of (i) a Pre-IPO Equity Interest Holder, (ii) one or more Family Members of such Pre-IPO Equity Interest Holder and/or (iii) any other Permitted Entity of such Pre-IPO Equity Interest Holder;
(b) any general partnership, limited partnership, limited liability company, corporation or other entity exclusively owned by (i) a Pre-IPO Equity Interest Holder, (ii) one or
2
more Family Members of such Pre-IPO Equity Interest Holder and/or (iii) any other Permitted Entity of such Pre-IPO Equity Interest Holder;
(c) the personal representative of the estate of a Pre-IPO Equity Interest Holder upon the death of such Pre-IPO Equity Interest Holder solely to the extent such individual or entity is acting in the capacity as personal representative of such estate;
(d) a revocable living trust, which revocable living trust is itself a Permitted Trust, following the death of the natural person grantor of such trust, solely to the extent that such shares are held in such trust pending distribution to the beneficiaries designated in such trust, all of whom are Qualified Holders; and
(e) a guardian or conservator of a Qualified Holder who has been adjudged disabled, incapacitated, incompetent or otherwise unable to manage his own affairs by a court of competent jurisdiction, solely in that guardian’s or conservator’s capacity as such.
Except as explicitly provided for in the Articles, a Permitted Entity of a Pre-IPO Equity Interest Holder shall not cease to be a Permitted Entity of that Pre-IPO Equity Interest Holder solely by reason of his death.
“
Permitted Transfer
” means any transfer of a B
Share to a Qualified Holder.
“
Permitted Trust
”
means a trust where each trustee is (a) a Pre-IPO Equity Interest Holder, (b) a Family Member of a Pre-IPO Equity Interest Holder, or (c) a professional (including an attorney or accountant) in the business of providing trustee services, including private professional fiduciaries, trust companies and bank trust departments.
“
Person
” means an individual, a company, a partnership, a joint venture, a limited liability company or limited liability partnership, an association, a trust, estate or other fiduciary, any other legal entity, and any Governmental Authority.
“
Piggyback Registration
” shall have the meaning set forth in
Section 4.01
.
“
Pre-IPO Equity Interest
” means a beneficial direct or indirect equity interest in (i) Parent, including as a holder of a beneficial equity interest in any corporation, partnership, limited liability company or similar business entity that holds the beneficial interest in shares in Parent, or (ii) any Subsidiary of Parent, including as a holder of a beneficial equity interest in any corporation, partnership, limited liability company or similar business entity that holds the beneficial interest in shares in such Subsidiary.
“Pre-IPO Equity Interest Holder
” means a person who, as of the date of the closing of the initial public offering of A Shares, is a beneficial owner (and thus ignoring and excluding any holder who is a nominee for the benefit of a beneficial owner, no such nominee being a Pre-IPO Equity Interest Holder for these purposes) of a Pre-IPO Equity Interest, including any natural person who has transferred his Pre-IPO Equity Interest to a Permitted Entity as of such date.
3
“
Public Offering
” means any offering by the Company of its equity securities to the public pursuant to an effective registration statement under the Securities Act or any comparable statement under any comparable Federal statute then in effect (other than any registration statement on Form S-8, Form F-4 or Form S-4 or any successor forms thereto).
“
Qualified Holder
” means (i) Parent or any Subsidiary of Parent (or any successor to Parent or any of its Subsidiaries), or (ii) any Pre-IPO Equity Interest Holder or any Family Member or Permitted Entity of such Pre-IPO Equity Interest Holder.
“
Registrable Securities
” means (i) A Shares issued upon conversion of B Shares held by Parent or any Subsidiary of Parent that were issued on or prior to the date of this agreement; (ii) A Shares issued
in the Reorganization Event, but only to the extent held by Qualified Holders; and (iii) A Shares issuable upon the conversion of B Shares issued in the Reorganization Event, but only to the extent held by Qualified Holders;
provided
,
however
, that any such Shares shall cease to be Registrable Securities when they (a) have been effectively registered under the Securities Act and sold by the holder thereof in accordance with such registration; (b) have been sold pursuant to Rule 144; or (c) are eligible for resale by an Eligible Shareholder under Rule 144 without volume or manner of sale restrictions, as determined by the Company in its discretion after consultation with Company counsel.
“
Registration Expenses
” shall have the meaning set forth in
Section 7.01
.
“
Registration Rights Transferee
” shall have the meaning set forth in
Section 11.02(b)
.
“
Reorganization Event
”
means an event in which the shareholders of Parent and/or other Subsidiaries of Parent (or any successors thereto) will receive direct ownership in a number of B Shares or A Shares (in proportion to their respective ownership interest in Parent and/or other Subsidiaries of Parent), whether by dividend, distribution, exchange offer or other means; provided that the aggregate number of B Shares received by such shareholders in such event shall be substantially the same as or fewer than (adjusting for fractional shares) the number of the B Shares owned by Parent and any Subsidiaries of Parent (or any successors thereto) immediately prior to the date of such event.
“
Rule 144
” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission as a replacement thereto.
“
Securities Act
” means the United States Securities Act of 1933, as amended, or any successor United States Federal statute, and the rules and regulations of the Commission thereunder, as the same shall be in effect from time to time.
“
Shares
” shall have the meaning set forth in the Recitals.
“
Shelf Registration Statement
” shall have the meaning set forth in
Section 3.01(a)
.
“
Shelf Underwritten Offering
”
shall have the meaning set forth in
Section
2.07
.
4
“
Short-Form Demand Registrations
” shall have the meaning set forth in
Section 2.02(a)
.
“
Subsequent Shelf Registration Statement
” shall have the meaning set forth in
Section 3.01(a)
.
“
Subsidiary
” means an incorporated or unincorporated entity in which another person (i) has a majority of the shareholders’ or members’ voting rights or (ii) has the right to appoint or remove a majority of the members of the administrative, management or supervisory body and is at the same time a shareholder in or member of such entity.
“
Take-Down Notice
”
shall have the meaning set forth in
Section
2.07
.
“
Transferring Shareholder
” shall have the meaning set forth in
Section 11.02(b)
.
ARTICLE II
Demand Registration
SECTION 2.01.
Long-Form Registrations
. (a) Subject to the terms of this Agreement, at any time after such Registrable Securities are no longer subject to the underwriter lock-up applicable to the Offering (which may be due to the expiration or waiver of such lock-up with respect to such Registrable Securities), upon written request from the holders of at least 10% of the Registrable Securities then outstanding, the Eligible Shareholders shall be entitled to request registration under the Securities Act of all or part of the Registrable Securities on Form F-1 or any similar long-form registration statement;
provided
,
however
, that with respect to any request under this
Section 2.01(a)
, (i) the anticipated aggregate offering amount of the Registrable Securities covered by such registration shall equal or exceed $75,000,000 and (ii) the Company shall not otherwise be eligible at the time of the request to file a registration statement on Form F-3 or any similar short-form registration statement for the sale of Registrable Securities by the Eligible Shareholders.
(b) Within ten days after receipt of any written request pursuant to this
Section 2.01
, the Company will give written notice of such request to all Eligible Shareholders, and will use its reasonable best efforts to include in such registration all Registrable Securities with respect to which the Company has received written requests for inclusion within ten days after delivery of the Company’s notice, and thereupon the Company will use its reasonable best efforts to effect, at the earliest possible date, the registration under the Securities Act. A registration requested pursuant to this
Section 2.01
is referred to herein as a “
Long-Form Demand Registration
”.
SECTION 2.02.
Short-Form Registrations
. (a) In addition to the Long-Form Demand Registration rights provided pursuant to
Section 2.01
above, at any time after such Registrable Securities are no longer subject to the underwriter lock-up applicable to the Offering (which may be due to the expiration or waiver of such lock-up with respect to such Registrable Securities) and commencing on the date on which the Company becomes eligible to register securities issued by it on a Form F-3 or any similar short-form registration statement, upon written request from the holders of at least 10% of the Registrable Securities then
5
outstanding
, the Eligible Shareholders shall be entitled to request registration under the Securities Act of all or part of the Registrable Securities on Form F-3 or such similar short-form registration statement (“
Short-Form Demand Registrations
” and, together with Long-Form Demand Registrations, “
Demand Registrations
”);
provided
,
however
, that with respect to any request under this
Section 2.02(a)
the anticipated aggregate offering amount of the Registrable Securities covered by such registration shall equal or exceed $75,000,000;
provided
,
further
, that if the Company has a registration statement filed with the Commission in accordance with and pursuant to Rule 415 under the Securities Act, then such demand right shall be exercised in accordance with Section 2.07.
(b) Within ten days after receipt of any written request pursuant to this
Section 2.02
, the Company will give written notice of such request to all Eligible Shareholders, and will use its reasonable best efforts to include in such registration all Registrable Securities with respect to which the Company has received written requests for inclusion within ten days after delivery of the Company’s notice, and thereupon the Company will use its reasonable best efforts to effect, at the earliest possible date, the registration under the Securities Act. Demand Registrations will be Short-Form Demand Registrations whenever the Company is permitted to use any applicable short form. If for marketing or other reasons the managing underwriter(s) with respect to any Short-Form Demand Registration request the inclusion in the registration statement of information that is not required under the Securities Act to be included in a registration statement on the applicable form for the Short-Form Demand Registration, the Company will provide such information as may be reasonably requested for inclusion by the managing underwriter(s) in the Short-Form Demand Registration.
SECTION 2.03.
Registration Amount and Number of Demands
. Each request for a Demand Registration shall specify the number of shares of Registrable Securities proposed to be sold. The maximum number of demand registration requests available under Article II shall be three.
SECTION 2.04.
Payment of Expenses for Demand Registrations
. The Company will pay all Registration Expenses for the Demand Registrations made under
Section 2.01
or
2.02
. A registration will not count as a Demand Registration until it has become effective.
SECTION 2.05.
Priority
. If the managing underwriter(s) with respect to a Demand Registration involving more than one Eligible Shareholder advise the Company in writing that, in their opinion, the number of Registrable Securities requested to be included in such Demand Registration should be reduced due to adverse market conditions, market demand or otherwise, then, unless otherwise agreed by all of the Eligible Shareholders who have requested inclusion of Registrable Securities in the applicable Demand Registration, the number of Registrable Securities shall be reduced
pro
rata
among the respective holders of such Registrable Securities on the basis of the number of such Registrable Securities requested by such holders to be included in the applicable Demand Registration.
SECTION 2.06.
Restrictions
. The Company will not be obligated to effect any Demand Registration within 120 days after the effective date of a previous Demand Registration. In addition, with respect to any Demand Registration, if (A) (i) in the good faith
6
judgment of the Company, there is a material adverse change in the condition, financial or otherwise, prospects, earnings or business affairs of the Company that has not been disclosed to the general public or (ii) the Company is planning to prepare and file a registration statement for a primary offering by the Company of its securities, and (B) the chief executive officer or chief financial officer of the Company notifies in writing the holders of the Registrable Securities requesting such Demand Registration that such officer has reasonably concluded that under such circumstances it would be in the Company’s best interest to postpone the filing of a Demand Registration, then the Company may postpone for up 45 days the filing or the effectiveness (but not the preparation) of a registration statement for a Demand Registration;
provided
, that the Company may not on any of the foregoing grounds postpone the filing or effectiveness of a registration statement for a Demand Registration more than three times during any 12-month period and such postponements shall not exceed 90 days in the aggregate (unless the requesting holders of Registrable Securities consent in writing to a longer postponement of the filing or effectiveness of such registration statement).
SECTION 2.07.
Underwritten Offerings
. All Demand Registrations shall be underwritten (which shall include “block trades”) and in no event shall the Company be obligated to effect any underwritten offering other than through a Demand Registration. At any time that a Shelf Registration Statement covering Registrable Securities pursuant to
Article I
I
I
is effective, if holders of at least 10% of the Registrable Securities then outstanding deliver a notice to the Company (a “
Take-Down Notice
”) demanding an underwritten offering of all or part of their Registrable Securities (the aggregate amount of such Registrable Securities to be at least $75,000,000), included by them on the Shelf Registration Statement (a “
Shelf Underwritten Offering
”), then, the Company shall amend or supplement the Shelf Registration Statement as may be necessary in order to enable such Registrable Securities to be distributed pursuant to the Shelf Underwritten Offering. In connection with any Shelf Underwritten Offering:
(a) the Company shall deliver the Take-Down Notice to all other holders of Registrable Securities included on such Shelf Registration Statement and permit each such holder to include its Registrable Securities on the Shelf Registration Statement in the Shelf Underwritten Offering if such holder notifies the Company within five days after delivery of the Take-Down Notice to such holder; and
(b) in the event that the underwriter determines that marketing factors (including an adverse effect on the per share offering price) require a limitation on the number of Registrable Securities which would otherwise be included in such take down, the underwriter may limit the number of Registrable Securities which would otherwise be included in such take-down offering in the same manner as described in Section 2.05 with respect to a limitation of Shares to be included in a registration.
SECTION 2.08.
Selection of Underwriters
. In connection with any Demand Registration, the managing underwriter(s) in respect of such offering shall be chosen by a majority-in-interest of the holders requesting such registration, subject to the approval of the Company (which approval shall not be unreasonably withheld).
7
ARTICLE III
Shelf Registrations
SECTION 3.01.
Right to Shelf Registration
. (a) Subject to the terms of this Agreement, in addition to the Demand Registrations and commencing on the date on which the Company becomes eligible to register securities issued by it on a Form F-3 or any similar short-form registration statement, holders of at least 10% of the Registrable Securities then outstanding shall be entitled to request that the Company file a shelf registration statement on Form F-3 pursuant to Rule 415 of the Securities Act (or any successor rule thereto) with respect to all or part of the Registrable Securities (including the prospectus, amendments and supplements to the shelf registration statement or prospectus, including pre- and post-effective amendments thereto, all exhibits thereto and all material incorporated by reference or deemed incorporated by reference therein, the “
Shelf Registration Statement
”); provided that, the Company shall, on the date of the Reorganization Event or as soon as reasonably practicable following such date, without any action from the Eligible Shareholders, use commercially reasonable efforts to file a Shelf Registration Statement with respect to the resale of the A Shares issued in the Reorganization Event and A shares issuable upon conversion of B Shares issued in the Reorganization Event, unless the Company is not eligible to register such securities on a Form F-3 or any similar short-form registration statement, in which case the Company shall file such Shelf Registration Statement as soon as it becomes so eligible.
The Company shall use its reasonable best efforts to cause the Shelf Registration Statement to be declared effective by the Commission as soon as practicable after such filing, and shall use its reasonable best efforts to keep the Shelf Registration Statement effective and updated, from the date such Shelf Registration Statement is declared effective until the date as of which all of the Registrable Securities included in the Shelf Registration Statement have been sold or cease to be Registrable Securities. If the Shelf Registration Statement has been effective for three years, at the end of the third year, if requested by holders of at least 10% of the Registrable Securities then outstanding, the Company shall use its reasonable best efforts to promptly file a new shelf registration statement (a “
Subsequent Shelf Registration Statement
”) on Form S-3 pursuant to Rule 415 of the Securities Act (or any successor rule thereto).
(b) The Company shall use its reasonable best efforts to cause any Subsequent Shelf Registration Statement to be declared effective by the Commission as soon as practicable after such filing, and shall use its reasonable best efforts to keep any Subsequent Shelf Registration Statement effective and updated, from the date such Subsequent Shelf Registration Statement is declared effective until the earlier of (i) the date as of which all of the Registrable Securities included in the Subsequent Shelf Registration Statement have been sold or cease to be Registrable Securities and (ii) the third anniversary of the initial effective date of the Subsequent Shelf Registration Statement. If the Subsequent Shelf Registration Statement has been effective for three years, at the end of the third year, if requested by holders of at least 10% of the Registrable Securities then outstanding, the Company shall use its reasonable best efforts to promptly file a new Subsequent Shelf Registration Statement on Form F-3 pursuant to Rule 415 of the Securities Act (or any successor rule thereto).
8
(c) From time to time, the Eligible Shareholders, when holding at least 10% of the Registrable Securities, shall be entitled to request that the Company amend the Shelf Registration Statement or any Subsequent Shelf Registration Statement to (i) include all or part of the Registrable Securities not already covered by the Shelf Registration Statement or any Subsequent Shelf Registration Statement or (ii) amend the plan of distribution as reasonably necessary to permit resales of Registrable Securities in the manner contemplated by such
requesting holders (subject to the limitations of
Section 2.07
). Upon receipt of a request to amend a Shelf Registration Statement or any Subsequent Shelf Registration Statement in accordance with this subsection, the Company shall use its reasonable best efforts to cause such amendment to be filed as soon as reasonably practicable after the receipt of such request.
(d)
Payment of Expenses for Shelf Registrations
. The Company will pay all Registration Expenses for the shelf registrations made under this
Article III
.
ARTICLE IV
Piggyback Registrations
SECTION 4.01.
Right to Piggyback
. At any time, whenever the Company proposes to register any of its equity securities under the Securities Act for its own account or otherwise, and the registration form to be used may be used for the registration of Registrable Securities (each, a “
Piggyback Registration
”) (except for registrations on Form S-8, Form F-4 or Form S-4 or any successor forms thereto), the Company will give written notice, at least ten days prior to the proposed filing of such registration statement, to all Eligible Shareholders, of its intention to effect such a registration and will use its reasonable best efforts to include in such registration all Registrable Securities (in accordance with the priorities set forth in
Sections 4.02
and
4.03
below) with respect to which the Company has received written requests for inclusion specifying the number of Registrable Securities desired to be registered, which requests shall be delivered within ten days after the delivery of the Company’s notice. The Company may postpone or withdraw the filing or the effectiveness of a Piggyback Registration at any time in its sole discretion.
SECTION 4.02.
Priority on Primary Registrations
. If a Piggyback Registration is an underwritten primary offering on behalf of the Company and the managing underwriter(s) advise the Company in writing that, in their opinion, the number of Company securities requested to be included in the registration (including securities of the Company that are not Registrable Securities) should be reduced due to adverse market conditions, market demand or otherwise, then the Company may exclude securities (including Registrable Securities) from the registration and the underwriting, and the number of securities to be included in such registration and underwriting shall be determined as follows: (a)
first
, any securities that the Company proposes to sell; (b)
second
, the Registrable Securities requested to be included in such registration, pro rata among the Eligible Shareholders on the basis of the total number of Registrable Securities which are requested by such Eligible Shareholders to be included in such registration, and (c)
third
, other securities, if any, requested to be included in such registration.
9
SECTION 4.03.
Priority on Secondary Registrations
. If a Piggyback Registration is an underwritten secondary offering on behalf of any Person, other than the Eligible Shareholders, who has the contractual right to initiate such a registration (the “
Other Shareholders
”), the Company shall provide a notice to all Eligible Shareholders in a manner set forth in Section 4.01. If the managing underwriter(s) advise the Company in writing that, in their opinion, the number of Company securities requested to be included in the registration (including securities of the Company that are not Registrable Securities) should be reduced due to adverse market conditions, market demand or otherwise, the Company will include in such registration: (a)
first
, the Shares requested to be included therein by the Other Shareholders, (b)
second
, the Registrable Securities requested to be included in such registration,
pro rata
among the Eligible Shareholders on the basis of the total number of Registrable Securities which are requested by such Eligible Shareholders to be included in such registration, (c)
third
, any securities that the Company proposes to sell, and (d)
fourth
, other securities, if any, requested to be included in such registration.
SECTION 4.04.
Selection of Underwriters
. In connection with any Piggyback Registration resulting from the Company’s proposal to register any of its Shares for its own account, the Company will have the right to select the managing underwriter(s) in respect of such offering in its sole discretion.
SECTION 4.05.
Payment of Expenses for Demand Registrations
. The Company will pay all Registration Expenses for the Piggyback Registrations under this
Article IV
.
ARTICLE V
Additional Agreements
SECTION 5.01.
Holders’ Agreements
. To the extent consistent with applicable law, each holder of Registrable Securities agrees that upon request of the Company or the managing underwriter(s) of any underwritten offering of the Company’s securities, any holder participating in such underwritten offering will not, directly or indirectly (A) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant for the sale of, or lend or otherwise dispose of or transfer any Shares or any securities convertible into or exchangeable or exercisable for Shares, whether then owned or thereafter acquired by such holder or with respect to which the holder has or hereafter acquires the power of disposition (collectively, the “
Lock-Up Securities
”), or exercise any right with respect to the registration of any of the Lock-up Securities, or file or cause to be filed any registration statement in connection therewith, under the Securities Act, or (B) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction described in clause (A) or (B) above is to be settled by delivery of Shares or other securities, in cash or otherwise (other than those securities included by such holder in the offering in question, if any), without the prior written consent of the Company or such underwriters, as the case may be, during the period of up to 180 days following the effective date of the registration statement for such underwritten offering;
provided
,
however
, that the foregoing restrictions shall not apply to (a) Shares being
10
sold in such underwritten offering, (b) transactions relating to Lock-Up Securities or other securities acquired in the open market, (c) transfers of Lock-Up Securities or any security convertible into or exercisable or exchangeable for Lock-Up Securities (i) as bona fide gifts, gifts, or for bona fide estate planning purposes, (ii) upon death or by will, testamentary document or intestate succession, (iii) to an immediate family member of such holder or to any trust for the direct or indirect benefit of such holder or one or more immediate family members of such holder (for purposes of this Section 5.01, “immediate family” shall mean any spouse or domestic partner and any relationship by blood, current or former marriage or adoption, not more remote than first cousin), (d) sales or other dispositions to affiliates of such holder; provided that it shall be a condition to any transfer pursuant to clauses (c) and (d) that (i) the transferee/donee agrees to be bound by the terms of a lock up agreement (including, without limitation, the foregoing restrictions) to the same extent as if the transferee/donee were a party hereto and (ii) each party (donor, donee, transferor or transferee) shall not be required by law (including without limitation the disclosure requirements of the Securities Act and the Exchange Act) to make, and shall agree to not voluntarily make, any filing or public announcement of the transfer or disposition prior to the expiration of a lock up period, and (e) the transfer of such holder’s Lock-Up Securities or any security convertible into or exercisable or exchangeable for Lock-Up Securities that occurs by operation of law, such as pursuant to a qualified domestic order or in connection with a divorce settlement;
provided
, that the recipient of such transfer or distribution shall be subject to the foregoing restrictions.
In addition, each holder of Registrable Securities will enter into and be bound by such form of agreement with respect to the foregoing as the Company or such managing underwriter(s) may reasonably request.
SECTION 5.02.
Company’s Agreements
. The Company agrees not to effect any public sale or public distribution of its equity securities, or any securities convertible into or exchangeable or exercisable for such securities, during the 90-day period following the effective date of a registration statement filed under
Article II
hereof (except as part of any such underwritten registration or pursuant to registrations on Form S-8, Form F-4 or Form S-4 or any successor forms thereto), unless the managing underwriter(s) otherwise agree.
SECTION 5.03.
Suspension of Resales
. The Company shall be entitled to suspend for up to 45 days the use of the prospectus forming the part of any registration statement, including a Shelf Registration Statement, which has theretofore become effective at any time if, in the good faith judgment of the Company, there is a material adverse change in the condition, financial or otherwise, prospects, earnings or business affairs of the Company that has not been disclosed to the general public and the chief executive officer or chief financial officer of the Company notifies in writing the holders of the Registrable Securities included in such registration statement and not previously sold thereunder that such officer has reasonably concluded that under such circumstances it would be in the Company’s best interest to suspend the use of such prospectus;
provided
,
however
, that the Company may not exercise its rights under this
Section 5.03
more than three times in any 12-month period and the duration of such suspensions shall not, taken together with any postponements pursuant to
Section 2.06
, exceed 90 days in the aggregate in any 12-month period (unless the holders of at least 10% of the unsold Registrable Securities included in such registration statement and not previously sold thereunder consent in writing to a longer suspension). Each holder of Registrable Securities included in any
11
such registration statement and not previously sold thereunder agrees that upon its receipt of such written notification it will immediately discontinue the sale of any Registrable Securities pursuant to such registration statement or otherwise until such holder has received copies of the supplemented or amended prospectus or until such holder is advised by the Company in writing that the use of the prospectus forming a part of such registration statement may be resumed and has received copies of any additional or supplemental filings that are incorporated by reference in such prospectus.
ARTICLE VI
Registration Procedures
SECTION 6.01.
Registration Procedures
. Whenever requests for registration have been made pursuant to this Agreement, the Company will use its reasonable best efforts to effect the registration of such Registrable Securities in accordance with the intended method of disposition thereof and, pursuant thereto, the Company will as expeditiously as reasonably possible:
(a) prepare and, as soon as practicable after the end of the period within which requests for registration may be given to the Company, file with the Commission a registration statement with respect to such Registrable Securities and use its reasonable best efforts to cause such registration statement to become effective (provided that before filing a registration statement or prospectus, or any amendments or supplements thereto, the Company will furnish copies of all such documents proposed to be filed to one counsel designated by holders of at least 20% of the Registrable Securities covered by such registration statement and to the extent practicable under the circumstances, provide such counsel an opportunity to comment on any information pertaining to the holders of Registrable Securities covered by such registration statement contained therein; and the Company shall consider in good faith any comments reasonably requested by such counsel with respect to such information);
(b) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectuses used in connection therewith as may be necessary to keep such registration statement effective until the later of (i) the date that is 180 days after its effectiveness and (ii) the date that all of the securities covered by the registration statement have been sold, and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement;
(c) in connection with any filing of any registration statement or prospectus or amendment or supplement thereto, cause such document (i) to comply in all material respects with the requirements of the Securities Act and the rules and regulations of the Commission thereunder and (ii) to not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
12
(d) furnish to each seller of Registrable Securities, without charge, such number of copies of such registration statement, each amendment and supplement thereto, the prospectuses included in such registration statement (including each preliminary prospectus) and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) use its reasonable best efforts to register or qualify such Registrable Securities under such securities or blue sky laws of such jurisdictions as the Eligible Shareholders reasonably request, keep each such registration or qualification effective during the period the associated registration statement is required to be kept effective, and do any and all other acts and things that may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller;
provided
,
however
, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph, (ii) consent to general service of process in any such jurisdiction or (iii) subject itself or any of its Affiliates to taxation in any such jurisdiction in which it is not already subject to taxation;
(f) promptly notify each seller of such Registrable Securities and, if requested by such seller, confirm in writing, when a registration statement has become effective and when any post-effective amendments and supplements thereto become effective;
(g) promptly notify each seller of such Registrable Securities, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or fails to state any fact necessary to make the statements therein not misleading, and, at the request of any such seller (but subject to the terms of
Section 5.03
), the Company will prepare a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain any untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(h) use reasonable best efforts to cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed or if no such securities are then listed, on a national securities exchange selected by the Company;
(i) provide a transfer agent, registrar and CUSIP number for all such Registrable Securities not later than the effective date of such registration statement;
(j) enter into such customary agreements (including, if applicable, underwriting agreements in customary form) and take all such other customary actions as the holders of 10% of the Registrable Securities being sold or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities;
13
(k) use reasonable best efforts to cooperate with each seller and the underwriter or managing underwriter, if any, to facilitate the timely preparation and delivery of Registrable Securities to be sold and to remove any restrictive notation from the books and records of the transfer agent or the Company, as applicable; and enable such Registrable Securities to be in such denominations (consistent with the provisions of the governing documents thereof) and registered in such names as each seller or the underwriter or managing underwriter, if any, may reasonably request at least three business days prior to any sale of Registrable Securities;
(l) subject to confidentiality agreements in form and substance acceptable to the Company, make available for inspection, at such place and in such manner as determined by the Company in its sole discretion, by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by any such seller or underwriter, financial and other records, pertinent corporate documents and properties of the Company reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement, and cause the Company’s officers, directors, employees and independent accountants to supply all information
reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
provided
,
however
, that any records, information or documents that are furnished by the Company and that are non-public shall be used only in connection with such registration;
(m) advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such registration statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
(n) make available to its security holders, as soon as reasonably practicable, an earnings statement (which need not be audited) covering at least 12 months which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(o) cooperate and assist in any filing required to be made with the Financial Industry Regulatory Authority;
(p) at the request of any seller of such Registrable Securities in connection with an underwritten offering, furnish on the date or dates provided for in the underwriting agreement a “comfort letter” or “comfort letters” from the independent certified public accountants of the Company addressed to the underwriters and the sellers of Registrable Securities, covering such matters as such accountants, underwriters and sellers may reasonably agree upon, in which comfort letter(s) such accountants shall state, without limiting the generality of the foregoing, that they are an independent registered public accounting firm within the meaning of the Securities Act and that in their opinion the financial statements and other financial data of the Company included in
14
the registration statement, the prospectuses, or any amendment or supplement thereto, comply in all material respects with the applicable accounting requirements of the Securities Act; and
(q) with respect to Demand Registrations, make senior executives of the Company reasonably available to assist the managing underwriter(s) with respect to, and participate, in “road shows” in connection with the marketing efforts for the distribution and sale of Registrable Securities pursuant to a registration statement.
ARTICLE VII
Registration Expenses
SECTION 7.01.
Company’s Expenses
. The Company will pay all expenses incident to the Company’s performance of or compliance with this Agreement, including, but not limited to: all registration and filing fees; fees and expenses of compliance with securities or blue sky laws; printing expenses; messenger and delivery expenses; and fees and disbursements of counsel for the Company; reasonable fees and disbursements of one counsel chosen by the holders of 20% of the Registrable Securities to be included in such registration to represent all holders of Registrable Securities to be included in the registration; fees and disbursements of the Company’s registered public accounting firm; and reasonable fees and disbursements of all other Persons retained by the Company (all such expenses being herein called “
Registration Expenses
”);
provided
,
however
, that, as between the Company and holders of Registrable Securities, all underwriting discounts and commissions and transfer taxes relating to the Registrable Securities will be borne by the holders of such Registrable Securities. In addition, the Company will pay its internal expenses (including, but not limited to, all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit or quarterly review, the expense of any liability insurance obtained by the Company and the expenses and fees for listing the securities to be registered on each securities exchange.
SECTION 7.02.
Holder’s Expenses
. To the extent that any expenses incident to any registration are not required to be paid by the Company, each holder of Registrable Securities included in a registration will pay all such expenses which are clearly and solely attributable to the registration of such holder’s Registrable Securities so included in such registration, and any other expenses not so attributable to one holder will be borne and paid by all sellers of securities included in such registration in proportion to the number of securities so included by each such seller.
ARTICLE VIII
Indemnification
SECTION 8.01.
By the Company
. The Company agrees to indemnify, to the extent permitted by law, each Eligible Shareholder and, as applicable, each of its trustees, shareholders, members, directors, managers, partners, officers and employees, and each Person who controls such holder (within the meaning of the Securities Act), against all losses, claims,
15
damages, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees and expenses) (collectively, “
Losses
”) caused by any untrue or alleged untrue statement of material fact contained in any registration statement, prospectus or preliminary prospectus, or any amendment thereof or supplement thereto (including, in each case, all documents incorporated therein by reference), or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as the same are caused by or contained in any information furnished in writing to the Company by such holder expressly for use therein. In connection with an underwritten offering, the Company will indemnify such underwriters, their officers and directors and each Person who controls such underwriters (within the meaning of the Securities Act) to the same extent as provided above with respect to the indemnification of the
Eligible Shareholders. The payments required by this
Section 8.01
will be made periodically during the course of the investigation or defense, as and when bills are received or expenses incurred;
provided
,
however
, that if a final and non-appealable judicial determination shall be made that such Indemnified Party (as defined below) is not entitled to indemnification for any such Losses, such Indemnified Party shall repay to the Company the amount of such Losses for which the Company shall have paid or reimbursed such Indemnified Party.
SECTION 8.02.
By Each
Eligible Shareh
older
. In connection with any registration statement in which an Eligible Shareholder is participating, each such holder will furnish to the Company in writing such information relating to such holder as is reasonably necessary for use in connection with any such registration statement or prospectus and, to the extent permitted by law, will indemnify the Company and, as applicable, each of its directors, employees and officers and each Person who controls the Company (within the meaning of the Securities Act) against any Losses resulting from any untrue or alleged untrue statement of material fact contained in the registration statement, prospectus or preliminary prospectus, or any amendment thereof or supplement thereto (including, in each case, all documents incorporated therein by reference), or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement or omission is contained in or omitted from any information furnished in writing by such holder expressly for use in such registration statement, prospectus or preliminary prospectus. In connection with a Demand Registration or any other underwritten offering in which a holder of Registrable Securities is participating, such holder will indemnify such underwriters, their officers and directors and each Person who controls such underwriters (within the meaning of the Securities Act) to the same extent as provided above with respect to the indemnification of the Company;
provided
,
however
, that any obligation to indemnify under this Section 8.02 will be several, not joint and several, among such holders of Registrable Securities and the liability of each such holder of Registrable Securities will be in proportion to and limited to the gross amount (before underwriting discounts) received by such holder from the sale of Registrable Securities pursuant to such registration statement, unless such Losses resulted from such holder’s intentionally fraudulent conduct.
SECTION 8.03.
Procedure
. Each party entitled to indemnification under this
Article VIII
(the “
Indemnified Party
”) shall give written notice to the party required to provide indemnification (the “
Indemnifying Party
”) promptly after such Indemnified Party has received written notice of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom,
16
provided that the counsel for the Indemnifying Party who is to conduct the defense of such claim or litigation is reasonably satisfactory to the Indemnified Party (whose approval shall not be unreasonably withheld or delayed). The Indemnified Party may participate in such defense at such Indemnified Party’s expense;
provided
,
however
, that the Indemnifying Party shall bear the expense of such participation if (i) the Indemnifying Party has agreed in writing to pay such expenses, (ii) the Indemnifying Party shall have failed to assume the defense of such claim or to employ counsel reasonably satisfactory to the Indemnified Party or (iii) in the reasonable judgment of the Indemnified Party, based upon the written advice of such Indemnified Party’s counsel, representation of both parties by the same counsel would be inappropriate due to actual or potential conflicts of interest;
provided
,
further
, that in no event shall the Indemnifying Party be liable for the fees and expenses of more than one counsel (excluding one local counsel per jurisdiction as necessary) for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same event, allegations or circumstances. The Indemnified Party shall not enter into any settlement without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. The failure of any Indemnified Party to give notice as provided herein shall relieve the Indemnifying Party of its obligations under this
Article VIII
only to the extent that such failure to give notice shall materially prejudice the Indemnifying Party in the defense of any such claim or any such litigation. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the prior written consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement (a) that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation in form and substance reasonably satisfactory to such Indemnified Party or (b) that includes an admission of fault, culpability or a failure to act, by or on behalf of any Indemnified Party.
SECTION 8.04.
Survival
. The indemnification (and contribution provisions in
Section 9.01
below) provided for under this Agreement will remain in full force and effect regardless of any investigation made by or on behalf of the Indemnified Party or any officer, director or controlling Person of such Indemnified Party and will survive the transfer of securities.
ARTICLE IX
Contribution
SECTION 9.01.
Contribution
. If the indemnification provided for in
Section 8.01
from the Indemnifying Party is unavailable to or unenforceable by the Indemnified Party in respect of any Losses, then the Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and Indemnified Parties in connection with the actions which resulted in such Losses, as well as any other relevant equitable considerations. The relative fault of such Indemnifying Party and Indemnified Parties shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such Indemnifying Party or Indemnified Parties, and the parties’
17
relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of any Losses shall be deemed to include, subject to the limitations set forth in
Article VIII
, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding. Notwithstanding this
Article IX
, an indemnifying holder shall not be required to
contribute any amount in excess of the amount by which (a) the gross amount (before underwriting discounts) received by such holders from the sale of Registrable Securities sold by such holder exceeds (b) the amount of any damages which such indemnifying holder has otherwise been required to pay by reason of the untrue or alleged untrue statement or omission or alleged omission giving rise to such payments, unless such Losses in respect of which contribution is required resulted from such holder’s intentionally fraudulent conduct.
SECTION 9.02.
Equitable Considerations; Etc.
The Company and the Eligible Shareholders agree that it would not be just and equitable if contribution pursuant to this Article IX were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in the immediately preceding paragraph. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
ARTICLE X
Compliance with Rule 144
SECTION 10.01.
Compliance with Rule 144
. At the request of any holder of Registrable Securities who proposes to sell securities in compliance with Rule 144, the Company will (i) promptly furnish to such holder a written statement of compliance with the filing requirements of the Commission as set forth in Rule 144, and (ii) make available to the public and such holders such information, and take such action as is reasonably necessary, to enable the holders of Registrable Securities to make sales pursuant to Rule 144.
ARTICLE XI
Miscellaneous
SECTION 11.01.
Amendments and Waivers
. Any waiver, consent or approval of any kind of any provision or condition of this Agreement must be made in writing and shall be effective only to the extent specifically set forth in writing. Except as set forth in
Section 11.02(d)
, any amendment, modification, supplement or restatement of this Agreement must be effected by written agreement of the Company and a majority-in-interest of the holders of Registrable Securities. No waiver by any party of any default, misrepresentation or breach of covenant hereunder, whether intentional or not, shall be deemed to extend to any prior or subsequent default, misrepresentation or breach of covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.
SECTION 11.02.
Reorganization Event and Transfer of Rights
. (a) Subject to Section 11.08, any Qualified Holder that receives A Shares or B Shares in the Reorganization
18
Event shall be entitled as a third party beneficiary to the benefits and rights under this Agreement as of the date of the Reorganization Event; no written agreement shall be required in connection with the receipt of such Shares by a Qualified Holder in the Reorganization Event. No Pre-IPO Equity Interest Holder in Parent and/or Subsidiaries of Parent will have any rights and benefits under this Agreement until the Reorganization Event.
(b) The rights of any Eligible Shareholder (a “
Transferring Shareholder
”) under this Agreement shall be transferable at the option of such Transferring Shareholder, by notice to the Company, to any transferee of Registrable Securities that acquires at least 5% of the Registrable Securities outstanding on the date of the transfer (a “
Registration Rights Transferee
”).
(c) Any such transfer of rights under
Section 11.02(b)
will be effective upon (i) receipt by the Company of written notice from such Transferring Shareholder stating the name and address of any Registration Rights Transferee and identifying the number of Registrable Securities with respect to which rights under this Agreement are being transferred and the nature of the rights so transferred and (ii) receipt by the Company of a written agreement from the Registration Rights Transferee to be bound by the terms of this Agreement, upon which such Registration Rights Transferee will be deemed to be a party hereto and have the rights and obligations of the Transferring Shareholder hereunder with respect to the Registrable Securities transferred, as if it were an original signatory to this Agreement.
(d) In connection with (1) any Permitted Transfer, (2) the receipt of A Shares or B Shares in the Reorganization Event and (3) any transfer pursuant to
Section 11.02(b)
, Schedule 1 of this Agreement will be amended so as to reflect such transfer or receipt, and each of the Persons and Registration Rights Transferees listed on such amended Schedule 1 will be deemed to be party to, and will be entitled to the benefits of, this Agreement (as if it were an original signatory to this Agreement).
SECTION 11.03.
Successors and Assigns
. Except as otherwise expressly provided herein, all covenants and agreements contained in this Agreement by or on behalf of any of the parties hereto will bind and inure to the benefit of the respective successors, assigns, heirs, executors and personal representatives of the parties hereto, whether so expressed or not.
SECTION 11.04.
Descriptive Headings
. The descriptive headings of this Agreement are inserted for convenience of reference only and do not constitute a part of and shall not be utilized in interpreting this Agreement.
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SECTION 11.05.
Notices
. Any notice or communication by the Company or any Eligible Shareholder is duly given if in writing and delivered in person or by first class mail (registered or certified, return receipt requested), facsimile transmission, email or overnight air courier guaranteeing next day delivery, to the recipient’s address:
If to the Company:
Ardagh Group S.A.
56, rue Charles Martel
L-2134 Luxembourg
Facsimile No.: +353 1 269-0832
Attention: Torsten Schoen
With a copy to:
Shearman & Sterling LLP
599 Lexington Avenue
New York, New York 10022
Facsimile No.: (646) 848-7333
Attention: Richard Alsop
If to an Eligible Shareholder, to the address indicated on
Schedule 1
attached hereto as amended from time to time.
The Company or any Eligible Shareholder, by notice to the other party hereto, may designate additional or different addresses for subsequent notices or communications. All notices and communications will be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if transmitted by facsimile; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery. If a notice or communication is mailed, transmitted or sent in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.
SECTION 11.06.
GOVERNING LAW
. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK EXCLUDING (TO THE GREATEST EXTENT PERMISSIBLE BY LAW) ANY RULE OF LAW THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.
SECTION 11.07.
Consent to Jurisdiction
. Each of the parties (a) consents to submit itself to the personal jurisdiction of the courts of the State of New York and any Federal court sitting in the State of New York in the event any dispute arises out of this Agreement or the transactions contemplated by this Agreement, (b) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court and (c) agrees that it will not bring any action relating to this Agreement or the transactions contemplated by this Agreement in any court other than the courts of the State of New York or any Federal court sitting in the State of New York.
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SECTION 11.08.
Remedies
. Each of the parties to this Agreement and Eligible Shareholders holding at least 25% of the Registrable Securities then outstanding will be entitled to enforce its rights and entitlements under this Agreement specifically, to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights existing in its favor. The parties hereto agree and acknowledge that money damages may not be an adequate remedy for any breach of the provisions of this Agreement and that any party shall be entitled to immediate injunctive relief or specific performance without bond or the necessity of showing actual monetary damages in order to enforce or prevent any violations of the provisions of this Agreement. For the avoidance of doubt, Eligible Holders holding less than 25% of the Registrable Securities then outstanding will not be entitled to enforce any of the rights and entitlements under this Agreement.
SECTION 11.09.
Further Assurances
. Each of the parties hereto will, without additional consideration, execute and deliver such further instruments and take such other action as may be reasonably requested by any other party hereto in order to carry out the purposes and intent of this Agreement.
SECTION 11.10.
Severability
. If any provision of this Agreement (or any portion thereof) or the application of any such provision (or any portion thereof) to any Person or circumstance shall be held invalid, illegal or unenforceable in any respect by a Governmental Authority, such invalidity, illegality or unenforceability shall not affect any other provision hereof (or the remaining portion thereof) or the application of such provision to any other persons or circumstances. Upon such determination that any provision of this Agreement (or any portion thereof) or the application of any such provision (or any portion thereof) to any Person or circumstance is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties hereto as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.
SECTION 11.11.
Entire Agreement
. This Agreement (including
Schedule 1
attached hereto) constitutes the entire agreement of the parties with respect to the subject matter hereof and supersede and shall supersede all prior agreements and understandings (whether written or oral) among the Company and the Eligible Shareholders, with respect to the subject matter hereof.
SECTION 11.12.
Execution in Counterparts
. This Agreement may be executed by any one or more of the parties hereto in any number of counterparts, each of which shall be deemed to be an original, but all such respective counterparts shall together constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic image scan shall be effective as delivery of a manually executed counterpart of this Agreement.
SECTION 11.13.
No Third Party Beneficiaries
. Except as provided in
Articles VIII
and
IX
and
Section 11.02
, nothing in this Agreement is intended or shall be construed to give any Person, other than the parties hereto, their successors and permitted assigns, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein.
21
SECTION 11.14.
Waiver of Certain Damages
. To the extent permitted by applicable law, each party hereto agrees not to assert, and hereby waives, any claim against any other party hereto, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any of the transactions contemplated hereby.
SECTION 11.15.
WAIVER OF JURY TRIAL
. EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY DISPUTE ARISING OUT OF THIS AGREEMENT. EACH PARTY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11.15.
[Signature pages follow]
22
IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement as of the date first above written.
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Ardagh Group S.A.
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by:
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Name:
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Title:
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ARD
Holdings S.A.
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by:
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Name:
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Title:
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Schedule 1
Eligible Shareholders
ARD Finance S.A.
56, rue Charles Martel
L-2134 Luxembourg
Facsimile No.: +353 1 269-0832
Attention: Paul Coulson and Herman Troskie
A
rdagh Group Finance Holdings S.A.
56, rue Charles Martel
L-2134 Luxembourg
Facsimile No.: +353 1 269-0832
Attention: Paul Coulson and Herman Troskie
Exhibit 10.2
SHAREHOLDER AGREEMENT
BY AND BETWEEN
ARD HOLDINGS S.A.
AND
ARDAGH GROUP S.A.
Dated , 2017
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS
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1
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Section 1.01
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Certain Defined Terms
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1
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Section 1.02
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Interpretation and Rules of Construction
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4
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ARTICLE II RELEVANT CONTRACTS
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5
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Section 2.01
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Relevant Contracts
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5
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ARTICLE III MUTUAL RELEASES; INDEMNIFICATION
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6
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Section 3.01
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Release of Pre-IPO Claims
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6
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Section 3.02
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Indemnification by Listco
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8
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Section 3.03
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Indemnification Obligations Net of Insurance Proceeds
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8
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Section 3.04
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Notice of Loss; Third Party Claims
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9
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Section 3.05
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Additional Matters
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10
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ARTICLE IV LEGAL MATTERS
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10
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Section 4.01
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Privileged Matters
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10
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ARTICLE V MISCELLANEOUS
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12
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Section 5.01
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Limitation of Liability
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12
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Section 5.02
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Post-Closing Cooperation
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12
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Section 5.03
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ARD Holdings Reorganisation
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12
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Section 5.04
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Allocation of Costs and Expenses for Luxembourg Offices
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12
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Section 5.05
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Dividends and Dividend Restrictions
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13
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Section 5.06
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Counterparts
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13
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Section 5.07
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Notices
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13
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Section 5.08
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Severability
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14
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Section 5.09
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Entire Agreement
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14
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Section 5.10
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Assignment
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14
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Section 5.11
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Amendments
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14
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Section 5.12
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Waiver
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14
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Section 5.13
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No Third Party Beneficiaries
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14
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Section 5.14
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Governing Law; Jurisdiction
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14
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Section 5.15
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Waiver of Jury Trial
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14
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SCHEDULES
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Schedule I
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Relevant Contracts
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SHAREHOLDER AGREEMENT
SHAREHOLDER AGREEMENT (this “
Agreement
”), dated , 2017, by and between ARD
HOLDINGS S.A., a
société anonyme
organized under the laws of Luxembourg (together with any successor thereof, “
ARD Holdings
”), and ARDAGH GROUP S.A., a
société anonyme
organized under the laws of Luxembourg (“
Listco
”).
WHEREAS, on the date of this Agreement, ARD Holdings owns, directly or indirectly, substantially all of the equity interests in Listco and, prior to the date hereof, has, in its capacity as the parent company of the companies operating the Business (as defined herein), overseen the operation of the Business and entered into various contracts, commitments and other arrangements in connection therewith;
WHEREAS, Listco intends to effect an initial public offering in the United States (the “
IPO
”) of its Class A common shares;
WHEREAS, following the closing of the IPO, ARD Holdings will remain a significant shareholder of Listco, and Listco will operate the Business as the parent company of the Listco Group; and
WHEREAS, the Parties have agreed to enter into this Agreement to define certain arrangements between them.
NOW, THEREFORE, in consideration of the foregoing premises and the covenants and agreements contained in this Agreement, and intending to be legally bound hereby, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01
Certain Defined Terms
. For purposes of this Agreement:
“
Action
” means any claim, action, demand, 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.
“
AFSA
” means ARD Finance S.A., a
société anonyme
organized under the laws of Luxembourg, a member of the ARD Holdings Group.
“
Agreement
” has the meaning set forth in the Preamble.
“
ARD Holdings
” has the meaning set forth in the Preamble.
“
ARD Holdings Group
” means ARD Holdings and its Subsidiaries (other than Listco and its Subsidiaries).
“
Business
” means the business conducted by ARD Holdings and its subsidiaries prior to the date hereof and to be conducted by the Listco Group following the IPO.
“
Closing Date
” means 12:00 a.m., New York time, on the date on which the closing of the IPO occurs.
“
Common Shares
” means the Class A common shares, par value EUR 0.01 per share, and Class B common shares, par value EUR 0.10 per share, of Listco.
“
Contract
” means any contract, agreement, lease, license, sales order, purchase order, instrument or other commitment, whether written or unwritten, that is binding on any Person or any part of its property under applicable Law.
“
control
” (including the terms “controlled by” and “under common control with”), with respect to the relationship between or among two or more Persons, means the possession, directly or indirectly, of the power to direct or cause the direction of the affairs or management of a Person, whether through the ownership of voting securities, as trustee, personal representative or executor, by contract, credit arrangement or otherwise.
“
Governmental Authority
” means any federal, national, supranational, state, provincial, local or other government, governmental, regulatory or administrative authority, agency or commission or any court, tribunal or judicial or arbitral body of competent jurisdiction.
“
Governmental Order
” means any order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any Governmental Authority.
“
Group
” means the ARD Holdings Group or the Listco Group, as the context requires.
“
Indemnified Party
” has the meaning set forth in
Section 3.03(a)
.
“
Indemnity Payment
” has the meaning set forth in
Section 3.03(a)
.
“
Insurance Proceeds
” means those monies:
(a)
received by an insured from an insurance carrier; or
(b)
paid by an insurance carrier on behalf of the insured, in any such case net of any applicable premium adjustments (including reserves and retrospectively rated premium adjustments) and net of any costs or expenses incurred in the collection thereof.
“
IPO
” has the meaning set forth in the recitals hereto.
2
“
Law
” means any non-U.S. or U.S. federal, national, supranational, state, provincial, local or similar statute, law, ordinance, regulation, rule, code, order, requirement or rule of law (including common law).
“
Liabilities
” means any and all debts, liabilities and obligations, whether accrued or fixed, absolute or contingent, matured or unmatured or determined or determinable, including those arising under any Law, Action or Governmental Order and those arising under any contract, agreement, arrangement, commitment or undertaking.
“
Listco
” has the meaning set forth in the Preamble.
“
Listco Group
” means Listco and each of its Subsidiaries, and each Person that becomes a Subsidiary of Listco after the date hereof.
“
Listco Releasees
” has the meaning set forth in
Section 3.01(b)
.
“
Listco Releasors
” has the meaning set forth in
Section 3.01(a)
.
“
Loss
” has the meaning set forth in
Section 3.02
.
“
Luxembourg Offices
” means the offices located at 56, rue Charles Martel L-2134 Luxembourg, Luxembourg, occupied and used by both ARD Holdings and Listco as of the date hereof.
“
Party
” means ARD Holdings or Listco.
“
Person
” means any individual, partnership, firm, corporation, limited liability company, 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 U.S. Exchange Act.
“
Relevant Contracts
”
means all Contracts to which any member of the ARD Holdings Group is a party or is bound, as of the date hereof, that relate to the Business, including the Contracts identified on
Schedule I
.
“
Reorganisation Event
” means an event in which the shareholders of ARD Holdings and/or other Subsidiaries of ARD Holdings (or any successors thereto) will receive direct ownership in a number of Common Shares (in proportion to their respective ownership interest in ARD Holdings and/or other Subsidiaries of ARD Holdings), whether by dividend, distribution, exchange offer or other means; provided that the aggregate number of Class B common shares received by such shareholders in such event shall be substantially the same as or fewer than (adjusting for fractional shares) the number of the Class B common shares owned by ARD Holdings and or any Subsidiaries of ARD Holdings (or any successors thereto) immediately prior to the date of such event.
“
SEC
” means the U.S. Securities and Exchange Commission.
“
Securities Act
” means the U.S. Securities Act of 1933,
as amended, together with the rules and regulations promulgated thereunder.
3
“
Subsidiary
” of any Person means any corporation, partnership, limited liability company or other organization, whether incorporated or unincorporated, more than 50% of the equity interests of which are owned, directly or indirectly, by such first Person.
“
Tax
” or “
Taxes
” means all income, capital gains, gross receipts, windfall profits, severance, property, production, license, excise, net worth, franchise, capital, employment, withholding, social security contributions and other taxes, duties, fees, charges or imposts, however denominated, together with any interest, additions or penalties in respect thereof, imposed by any Taxing Authority.
“
Taxing Authority
” means any Governmental Authority that is responsible for the administration or imposition of any Tax, including any federal, national, international, supranational, state, provincial, local or other government, governmental, regulatory or administrative authority, agency or commission and any court, tribunal or judicial or arbitral body empowered to issue binding decisions.
“
Third Party Claim
” has the meaning set forth in
Section 3.04(b)
.
“
Toggle Notes
” means the 7.125%/7.875% Senior Secured Toggle Notes due 2023 and the 6.625%/7.375% Senior Secured Toggle Notes due 2023, issued by AFSA on September 16, 2016, or any replacement, refunding or refinancing thereof.
Section 1.02
Interpretation and Rules of Construction
. In this Agreement, except to the extent otherwise provided or that the context otherwise requires:
(a)
when a reference is made in this Agreement to an Article, Section or Schedule, such reference is to an Article or Section of, or a Schedule to, this Agreement;
(b)
the table of contents and headings for this Agreement are for reference purposes only and do not affect in any way the meaning or interpretation of this Agreement;
(c)
whenever the words “include,” “includes” or “including” are used in this Agreement, they are deemed to be followed by the words “without limitation”;
(d)
the words “hereof,” “herein” and “hereunder” and words of similar import, when used in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement;
(e)
all terms defined in this Agreement have the defined meanings when used in any certificate or other document delivered or made available pursuant hereto, unless otherwise defined therein;
(f)
the definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms;
(g)
references to a Person are also to its successors and permitted assigns; and
4
(h)
the use of “or” is not intended to be exclusive unless expressly indicated otherwise.
ARTICLE II
RELEVANT CONTRACTS
Section 2.01
Relevant Contracts
.
(a)
With respect to each Relevant Contract that can be assigned by ARD Holdings or another member of the ARD Holdings Group to a member of the Listco Group (as designated by Listco) without the prior consent of, or notice to, any unrelated Person, ARD Holdings will, or will cause the applicable member of the ARD Holdings Group to, assign such Relevant Contract to such member of the Listco Group, and such member will accept such Relevant Contract and assume all of the rights and obligations of the assigning Person thereunder;
provided
that no member of the Listco Group or the ARD Holdings Group shall be obligated to pay any consideration in respect of such assignment to any member of the other Group.
(b)
With respect to each Relevant Contract that cannot be assigned by ARD Holdings or another member of the ARD Holdings Group to a member of the Listco Group without the prior consent of, or notice to, any unrelated Person, ARD Holdings and Listco will cooperate with each other to put in place such arrangements as are necessary to (i) provide the applicable member of the Listco Group (as designated by Listco), to the fullest extent practicable, with the claims, rights and benefits enjoyed by the applicable member of the ARD Holdings Group under such Relevant Contract, and (ii) to cause such member of the Listco Group to assume all Liabilities arising under such Relevant Contract from and after the Closing Date, in each case, as if each Relevant Contract had been assigned to such member of the Listco Group as of such date. No member of the Listco Group or the ARD Holdings Group shall be obligated to pay any consideration in respect of the arrangements described in this
Section 2.01(b)
or
Section 2.01(c)
to any member of the other Group.
(c)
In furtherance of the foregoing, (i) the applicable member of the Listco Group shall be treated as the owner of each Relevant Contract described in
Section 2.01(b)
for Tax purposes as of the Closing Date, (ii) ARD Holdings shall accept (or cause the applicable member of the ARD Holdings Group to accept) such reasonable direction as the applicable member of the Listco Group requests with respect to each such Relevant Contract, including to enforce at such member’s request, or allow such member to enforce, in a commercially reasonable manner, any rights of the applicable member of the ARD Holdings Group under each such Relevant Contract against the other party or parties thereto;
provided
that the costs and expenses incurred by any member of the ARD Holdings Group at such member’s request shall be borne solely by Listco or the applicable member of the Listco Group, (iii) ARD Holdings shall, and shall cause each member of the ARD Holdings Group to, without further consideration therefor, pay and remit to the applicable member of the Listco Group promptly all monies, rights and other consideration received by any of them under each such Relevant Contract from and after the Closing Date, and (iv) Listco shall cause the applicable member of the Listco Group to pay, perform and discharge fully promptly when due, all of the obligations of ARD Holdings or the applicable member of
5
the ARD Holdings Group under each such Relevant Contract required to be performed from and after the Closing Date, and such member of the Listco Group shall be responsible for all Liabilities related thereto arising or required to be performed and discharged from and after the Closing Date.
(d)
Notwithstanding anything to the contrary in this
Section 2.01
, no member of the Listco Group or the ARD Holdings Group shall be required to take any action that would, in the good faith judgment of Listco or ARD Holdings, respectively, reasonably be expected to (i) result in a violation of any obligation that any member of its Group has to any third party or (ii) violate applicable Law.
ARTICLE III
MUTUAL RELEASES; INDEMNIFICATION
Section 3.01
Release of Pre-IPO Claims
.
(a)
Except as provided in
Section 3.01(c)
, effective as of the Closing Date, Listco does hereby, on behalf of itself and each other member of the Listco Group, their respective Affiliates (other than any member of the ARD Holdings Group), successors and assigns, and all Persons who at any time prior to the Closing Date have been stockholders (other than any member of the ARD Holdings Group), directors, officers, agents or employees of any member of the Listco Group (in each case, in their respective capacities as such) (the “
Listco Releasors
”), unequivocally, unconditionally and irrevocably release and discharge each member of the ARD Holdings Group, their respective Affiliates (other than any member of the Listco Group), successors and assigns, and all Persons who at any time prior to the Closing Date have been stockholders, directors, officers, agents or employees of any member of the ARD Holdings Group (in each case, in their respective capacities as such), and their respective heirs, executors, administrators, successors and assigns (the “
ARD Holdings Releasees
”), from any and all Actions and Liabilities, of any nature whatsoever, in law, at equity or otherwise, whether direct, indirect, derivative or otherwise, which have been asserted against an ARD Holdings Releasee by a Listco Releasor or which, whether currently known or unknown, suspected or unsuspected, fixed or contingent, and whether or not concealed or hidden, any of the Listco Releasors ever could have asserted or ever could assert, in any capacity, either for itself or as an assignee, heir, executor, trustee or otherwise for or on behalf of any other Person, against the ARD Holdings Releasees, relating to any transactions or occurrences whatsoever, up to and including the Closing Date.
(b)
Except as provided in
Section 3.01(c)
, effective as of the Closing Date, ARD Holdings does hereby, on behalf of itself and each other member of the ARD Holdings Group, their respective Affiliates (other than any member of the Listco Group), successors and assigns, and all Persons who at any time prior to the Closing Date have been stockholders, directors, officers, agents or employees of any member of the ARD Holdings Group (in each case, in their respective capacities as such) (the “
ARD Holdings Releasors
”), unequivocally, unconditionally and irrevocably release and discharge each member of the Listco Group, their respective Affiliates (other than any member of the ARD Holdings Group), successors and assigns, and all Persons who at any time prior to the Closing Date have been stockholders (other than any
6
member of the ARD Holdings Group), directors, officers, agents or employees of any member of the Listco Group (in each case, in their respective capacities as such), and their respective heirs, executors, administrators, successors and assigns (the “
Listco Releasees
”), from any and all Actions and Liabilities, of any nature whatsoever, in law, at equity or otherwise, whether direct, derivative or otherwise, which have been asserted against a Listco Releasee by an ARD Holdings Releasor or which, whether currently known or unknown, suspected or unsuspected, fixed or contingent, and whether or not concealed or hidden, the ARD Holdings Releasors ever could have asserted or ever could assert, in any capacity, whether as partner, employer, agent or otherwise, either for itself or as an assignee, heir, executor, trustee or otherwise for or on behalf of any other Person, against the Listco Releasees, relating to any transactions or occurrences whatsoever, up to and including the Closing Date.
(c)
Nothing contained in
Section 3.01(a)
or
Section 3.01(b)
shall impair any right of either Party to enforce this Agreement in accordance with its terms. Nothing contained in
Section 3.01(a)
or
Section 3.01(b)
shall release any Person from:
(i)
any Liability provided in or resulting from any Contract entered into after the Closing Date between a member of one Group, on the one hand, and a member of the other Group, on the other hand; or
(ii)
any Liability the release of which would result in the release of any Person other than a Person released pursuant to this
Section 3.01
.
In addition, nothing contained in
Section 3.01(a)
or
Section 3.01(b)
shall release any member of one Group from complying with its existing obligations to indemnify any director, officer or employee of a member of the other Group who was a director, officer or employee of a member of such first Group on or prior to the Closing Date, to the extent such director, officer or employee becomes a named defendant in any litigation involving a member of such first Group and was entitled to such indemnification pursuant to the contractual obligations existing on or prior to the Closing Date.
(d)
Listco shall not make, and shall not permit any member of the Listco Group to make, any claim or demand, or commence any Action asserting any claim or demand, including any claim of contribution or any indemnification, against any ARD Holdings Releasee released pursuant to
Section 3.01(a)
with respect to, subject to
Section 3.01(c)
, any Liabilities released pursuant to
Section 3.01(a)
. ARD Holdings shall not make, and shall not permit any member of the ARD Holdings Group to make, any claim or demand, or commence any Action asserting any claim or demand, including any claim of contribution or any indemnification, against any Listco Releasee released pursuant to
Section 3.01(b)
with respect to, subject to
Section 3.01(c)
, any Liabilities released pursuant to
Section 3.01(b)
.
(e)
It is the intent of the Parties by virtue of the provisions of this
Section 3.01
to provide for a full and complete release and discharge of all Liabilities existing or arising from all acts and events occurring or failing to occur or alleged to have occurred or to have failed to occur and all conditions existing or alleged to have existed on or before the Closing Date, between or among any member of the Listco Group, on the one hand, and any member of the ARD Holdings Group, on the other hand (including any contractual agreements or arrangements existing or
7
alleged to exist between or among any such members on or before the Closing Date), except as expressly set forth in
Section 3.01(c)
. At any time, at the request of any other Party, each Party shall cause each member of its Group to execute and deliver releases reflecting the provisions of this
Section 3.01
.
Section 3.02
Indemnification by Listco
. Except as expressly provided in any provision of this Agreement, following the Closing Date, each member of the ARD Holdings Group and their stockholders, directors, officers, employees, agents, successors and assigns shall be indemnified and held harmless by Listco from and against all losses, damages, claims, costs and expenses, interest, awards, judgments and penalties (including reasonable attorneys’ and consultants’ fees and expenses) actually suffered or incurred by them (hereinafter a “
Loss
”), to the extent arising out of or resulting from all actions (or omissions to act) of any member of the Listco Group under each Relevant Contract described in
Section 2.01(b)
and all actions of any member of the ARD Holdings Group in respect of each Relevant Contract that are taken (or not taken) at the direction of any member of the Listco Group (except to the extent resulting from any action by a member of the ARD Holdings Group with respect to a Relevant Contract that is not taken at the direction of a member of the Listco Group and that constitutes a breach by such member of the ARD Holdings Group of such Relevant Contract).
Section 3.03
Indemnification Obligations Net of Insurance Proceeds
.
(a)
The Parties intend that any Liability subject to indemnification pursuant to
Section 3.02
will be net of Insurance Proceeds that actually reduce the amount of the Liability. Accordingly, the amount that Listco is required to pay to any Person entitled to indemnification under
Section 3.02
(an “
Indemnified Party
”) will be reduced by any Insurance Proceeds actually recovered by or on behalf of such Indemnified Party in respect of the related Liability. If an Indemnified Party receives a payment (an “
Indemnity Payment
”) required by this Agreement from Listco in respect of any Liability and subsequently receives Insurance Proceeds, then such Indemnified Party shall promptly reimburse Listco for any payment made in connection with providing such indemnification up to the amount received by the Indemnified Party, net of any costs and expenses incurred by such Indemnified Party in collecting such amount.
(b)
An insurer who would otherwise be obligated to pay any claim shall not be relieved of the responsibility with respect thereto or, solely by virtue of the indemnification provisions hereof, have any subrogation rights with respect thereto, it being expressly understood and agreed that no insurer or other third party shall be entitled to a “wind-fall” (
i.e.
, a benefit they would not be entitled to receive in the absence of the indemnification provisions) by virtue of the indemnification provisions hereof. Nothing contained in this Agreement shall obligate any member of the ARD Holdings Group to seek to collect or recover any Insurance Proceeds.
(c)
All Indemnity Payments under this Agreement shall be (i) increased to take account of any net Tax cost actually incurred by the Indemnified Party arising from the receipt of Indemnity Payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any indemnifiable Loss. In computing the amount of any such Tax cost or Tax benefit, the Indemnified Party shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt of any Indemnity
8
Payment hereunder or the incurrence or payment of any indemnifiable Loss. For purposes of this Agreement, an Indemnified Party shall be deemed to have “actually realized” a net Tax cost or a net Tax benefit to the extent that, and at such time as, the amount of Taxes payable (including Taxes payable on an estimated basis) by such Indemnified Party is increased above or reduced below, as the case may be, the amount of Taxes that such Indemnified Party would be required to pay but for the receipt or accrual of the indemnity payment or the incurrence or payment of such amount indemnified against as the case may be. The Parties shall make any adjusting payment between each other as is required under this
Section 3.03(c)
within ten (10) days of the date an Indemnified Party is deemed to have actually realized each net Tax benefit or net Tax cost. The amount of any increase or reduction hereunder shall be adjusted to reflect any final determination with respect to the Indemnified Party’s liability for Taxes and any payments necessary to reflect such adjustment shall be made within ten (10) days of such determination.
Section 3.04
Notice of Loss; Third Party Claims
.
(a) An Indemnified Party shall give Listco notice of any matter that an Indemnified Party has determined has given or could reasonably give rise to a right of indemnification under this Agreement, within sixty (60) days of such determination, stating the amount of the Loss, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises;
provided
that the failure to provide such notice shall not release Listco from its obligations under
Section 3.02
, except to the extent that it is actually prejudiced by such failure to provide notice.
(b) If an Indemnified Party receives notice of any Action (a “
Third Party Claim
”) against it that may give rise to a claim for a Loss under
Section 3.02
, within thirty (30) days of the receipt of such notice, the Indemnified Party shall give Listco notice of such Third Party Claim;
provided
that the failure to provide such notice shall not release Listco from any of its obligations under
Section 3.02
, except to the extent that it is actually prejudiced by such failure to provide notice. Listco shall be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice, if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) days of the receipt of such notice from the Indemnified Party. If Listco elects to undertake any such defense against a Third Party Claim, the Indemnified Party shall be entitled to participate in (but not control) such defense with its own counsel, and at its own expense. In the event that both the Indemnified Party and Listco (or any other member of either Group) are named defendants in such Third Party Claim, Listco may employ one counsel of its choice to act in joint defense of such Third Party Claim, so long as representation by one counsel in such joint defense is permitted under the applicable rules of professional conduct or ethics. The Indemnified Party shall cooperate with Listco in such defense and make available to Listco, at Listco’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by Listco. If Listco elects to direct the defense of any such claim or proceeding, the Indemnified Party shall not pay, or permit to be paid, any part of such Third Party Claim unless Listco consents in writing to such payment or unless a final judgment from which no appeal may be taken by or on behalf of Listco is entered against the Indemnified Party for such Third Party Claim. If the Indemnified Party assumes the defense of any such claims or proceeding pursuant to this
Section 3.04
and proposes to settle such claims
9
or proceeding prior to a final judgment thereon or to forgo any appeal with respect thereto, then the Indemnified Party shall give Listco prompt written notice thereof and Listco shall have the right to participate in the settlement or assume or reassume the defense of such claims or proceeding. Listco shall have the right to settle any Third Party Claim for which it obtains a full release of the Indemnified Party in respect of such Third Party Claim or to which settlement the Indemnified Party consents in writing, such consent not to be unreasonably conditioned, withheld or delayed.
Section 3.05
Additional Matters
.
(a) In the event of payment by or on behalf of Listco to any Indemnified Party in connection with any Third Party Claim, Listco shall be subrogated to and shall stand in the place of such Indemnified Party as to any events or circumstances in respect of which such Indemnified Party may have any right, defense or claim relating to such Third Party Claim against any claimant or plaintiff asserting such Third Party Claim or against any other Person. Such Indemnified Party shall cooperate with Listco in a reasonable manner, and at the cost and expense of Listco, in prosecuting any subrogated right, defense or claim.
(b) In the event of an Action in which Listco is not a named defendant, if Listco shall so request, the Parties shall endeavor to add Listco as a named defendant or substitute Listco for the named defendant. If such addition or substitution cannot be achieved for any reason or is not requested, the named defendant shall allow Listco to manage the Action as set forth in this
Article III
.
ARTICLE IV
LEGAL MATTERS
Section 4.01
Privileged Matters
. (a) The Parties recognize that certain legal and other professional services (both internal and external) have been and will be provided prior to and after the Closing Date and have been and will be rendered for the collective benefit of the members of each Group, and that each member of each Group should be deemed to be the client with respect to such services for the purposes of asserting all privileges that may be asserted under applicable Law;
provided
that with respect to such services the Parties agree as follows:
(i) the Parties shall not be entitled to assert privilege with respect to such legal and other professional services provided prior to the Closing Date against any member of any other Group;
(ii) ARD Holdings shall be entitled, on behalf of itself or any member of the ARD Holdings Group, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information to the extent relating to the business of any member of the ARD Holdings Group, whether or not the privileged information is in the possession of or under the control of ARD Holdings or Listco (or any members of their respective Groups);
10
(iii) Listco shall be entitled, on behalf of itself or any member of the Listco Group, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information to the extent relating to the business of any member of the Listco Group, whether or not the privileged information is in the possession of or under the control of ARD Holdings or Listco (or any members of their respective Groups); and
(iv) the Parties shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this
Section 4.01
, with respect to all privileges not allocated pursuant to the terms of
Section 4.01(a)(ii)
and
(iii)
. All privileges relating to any Actions or other matters in which both Listco and ARD Holdings retain any responsibility or Liability under this Agreement shall be subject to a shared privilege between them.
(b) Neither Party (itself or on behalf of any member of its Group) may waive any privilege that could be asserted under any applicable Law, and in which the other Party (or any member of its Group) has a shared privilege, without the consent of the other Party, which shall not be unreasonably conditioned, withheld or delayed or as provided in
Section 4.01(c)
or
(d)
below. Consent shall be deemed to be granted unless written objection is made within fifteen (15) days after written notice to the Party requesting such consent. Each Party agrees to maintain, preserve and assert all privileges, including all privileges arising under or relating to the attorney-client relationship (which shall include the attorney-client and the work product doctrine).
(c) In the event of any litigation or dispute between the Parties or any members of their respective Groups, either Party may waive a privilege in which the other Party or a member of the other Party’s Group has a shared privilege, without obtaining the consent of the other Party;
provided
that such waiver of a shared privilege shall be effective only as to the use of information with respect to the litigation or dispute between the Parties or the applicable members of its Group, and shall not operate as a waiver of the shared privilege with respect to third parties.
(d)
If a dispute arises between or among the Parties or any members of either Group regarding whether a privilege should be waived to protect or advance the interest of a Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably condition, withhold or delay consent to any request for waiver by the other Party. Each Party agrees that it will not condition, withhold or delay consent to waiver for any purpose except to protect its own legitimate interests.
(e) Upon receipt by a Party or by any member of its Group of any subpoena, discovery, court order or other request that arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other Party has the sole right hereunder to assert a privilege, or if a Party obtains knowledge that any of its or any member of its Group’s current or former directors, officers, agents or employees have received any subpoena, discovery or other requests that arguably call for the production or disclosure of such privileged information, such Party shall promptly notify the other Party of the existence of the request and shall provide the other Party a reasonable opportunity to review the information
11
requested or required to be produced or disclosed and to assert any rights it or they may have under this
Section 4.01
or otherwise to prevent the production or disclosure of such privileged information.
ARTICLE V
MISCELLANEOUS
Section 5.01
Limitation of Liability
. IN NO EVENT SHALL EITHER PARTY OR ANY OTHER MEMBER OF ITS GROUP BE LIABLE TO THE OTHER PARTY OR ANY OTHER MEMBER OF ITS GROUP FOR PUNITIVE, SPECIAL OR INDIRECT DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) ARISING IN ANY WAY OUT OF THIS AGREEMENT, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Section 5.02
Post-Closing Cooperation
. On and after the Closing Date, each of the Parties shall, and shall cause each member of its Group to, execute and deliver such documents and instruments, provide such materials and information and take such other actions as may be necessary, proper or advisable to fulfill its obligations under this Agreement. In addition, at the cost and expense of Listco, Listco shall, and shall cause each member of the Listco Group to, (i) provide such information or access (including copies of documents and staff assistance), and (ii) take such other actions, as any member of the ARD Holdings Group may reasonably request, consistent with the terms of this Agreement and applicable Law, to facilitate ARD Holdings’ ability to manage its investment in Listco and comply with any obligations imposed on any member of the ARD Holdings Group by any Governmental Authority or under any Contract, including reporting obligations under the Toggle Notes, the defense of litigation, the preparation of any Tax returns, financial statements or documents required to be filed with the SEC or any regulatory authority (including any stock exchange), or the management of any Tax audits.
Section 5.03
ARD Holdings Reorganisation
. Listco and ARD Holdings acknowledge that they currently plan to implement a Reorganisation Event following the Closing Date, as a result of which ARD Holdings Group will become wholly owned subsidiaries of Listco. Listco hereby undertakes that, upon the request of ARD Holdings and at the cost and expense of Listco, Listco shall take such actions as are necessary to implement the Reorganisation Event in accordance with applicable Law and the articles of association of Listco (the “
Listco Articles
”).
Section 5.04
Allocation of Costs and Expenses for Luxembourg Offices
. Each Party shall pay (or, to the extent incurred by and paid for by any member of the other Group, shall promptly reimburse such member of the other Group for any and all amounts so paid), in proportion to their relative usage, all fees, costs and expenses incurred by it or any other member of its Group on or after the Closing Date in connection with their use of the Luxembourg Offices, including fees, costs and expenses of employees and in respect of services related thereto.
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Section 5.05
Dividends and Dividend Restrictions
. (a) Following the Closing Date, Listco intends to pay dividends to all shareholders in amounts that will, at a minimum, be sufficient to enable AFSA to satisfy the cash interest payment obligations under the Toggle Notes; and (b) ARD Holdings acknowledges that Listco’s ability to pay such dividends is subject to compliance with applicable Law, any obligations imposed by applicable Contracts and the Listco Articles, including the requirement that any dividends be approved by Listco’s shareholders. In order to preserve its ability to pay such dividends, Listco agrees that so long as the Toggle Notes are outstanding, Listco shall not, and shall not permit any member of the Listco Group to, agree to restrictions on the payment of dividends that are materially more restrictive than the restrictions in place under any Contract or agreement existing on the Closing Date, unless such restriction would not have a material adverse effect on Listco’s ability to pay dividends in accordance with Section 5.05(a) (such determination to be made at the time such restrictions are entered into).
Section 5.06
Counterparts
. This Agreement may be executed and delivered (including by facsimile or other means of electronic transmission, such as by electronic mail in “.pdf” form) in one or more counterparts, and by the different Parties in separate counterparts, each of which when executed shall be deemed to be an original, but both of which taken together shall constitute one and the same agreement.
Section 5.07
Notices
. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given (a) when delivered in person, (b) upon confirmation of receipt after transmittal by facsimile (to such number specified below or another number or numbers as such Person may subsequently specify by proper notice under this Agreement), (c) upon confirmation of receipt after transmittal by email (to such email address specified below or another email address or addresses as such Person may subsequently specify by proper notice under this Agreement) or (d) on the next business day when sent by internationally recognized overnight courier (providing proof of delivery) in each case to the respective Party at the following coordinates (or at such other coordinates for a Party as shall be specified in a notice given in accordance with this
Section 5.07
):
if to ARD Holdings:
ARD Holdings S.A.
Attention:
Facsimile No.:
E-mail:
if to Listco:
Ardagh Group S.A.
56, rue Charles Martel
L-2134 Luxembourg
Attention:
Facsimile No.:
E-mail:
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Section 5.08
Severability
. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any Law or public policy, all other terms and provisions of this Agreement shall nevertheless remain in full force and effect for so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement are consummated as originally contemplated to the greatest extent possible.
Section 5.09
Entire Agreement
. This Agreement (including all exhibits and schedules hereto) constitutes the entire agreement of the Parties with respect to the subject matter hereof and thereof and supersedes all prior agreements and undertakings, both written and oral, among the Parties with respect to the subject matter hereof and thereof.
Section 5.10
Assignment
. This Agreement may not be assigned by either Party by operation of Law or otherwise without the express written consent of the other Party (which consent may be granted or withheld in the sole discretion of such other Party), and any attempted assignment without such consent shall be null and void.
Section 5.11
Amendments
. This Agreement may not be amended or modified except (a) by an instrument in writing signed by, or on behalf of, the Parties; or (b) by a waiver in accordance with
Section 5.12.
Section 5.12
Waiver
. Either Party may (a) extend the time for the performance of any of the obligations or other acts of the other Party or (b) waive compliance with any of the agreements of the other Party contained herein. Any such extension or waiver shall be valid only if set forth in an instrument in writing signed by the Party to be bound thereby. Any waiver of any term or condition shall not be construed as a waiver of any subsequent breach or a subsequent waiver of the same term or condition, or a waiver of any other term or condition of this Agreement. The failure of a Party to assert any of its rights hereunder shall not constitute a waiver of any of such rights.
Section 5.13
No Third Party Beneficiaries
. This Agreement shall be binding upon and inure solely to the benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied (including the provisions of
Article III
relating to indemnified parties), is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever.
Section 5.14
Governing Law; Jurisdiction
. This Agreement shall be governed by, and construed in accordance with, the laws of Luxembourg. Any Action arising in connection with this Agreement shall be submitted to the jurisdiction of the courts of Luxembourg-City.
Section 5.15
Waiver of Jury Trial
. EACH OF THE PARTIES HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT
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IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION OR LIABILITY DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT. EACH OF THE PARTIES HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY SUCH ACTION OR LIABILITY, SEEK TO ENFORCE THE FOREGOING WAIVER; AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 5.15
.
[
Signature page follows
]
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IN WITNESS WHEREOF, ARD Holdings and Listco have caused this Agreement to be executed as of the date first written above by their respective representatives thereunto duly authorized.
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ARD HOLDINGS S.A.
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ARDAGH GROUP S.A.
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By:
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