CONFORMED COPY
L100,000,000
ENODIS PLC
10 3/8% SENIOR NOTES DUE APRIL 15, 2012
PURCHASE AGREEMENT
March 19, 2002
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED ("CSFBL")
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THE ROYAL BANK OF SCOTLAND PLC
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▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Dear Sirs:
1. INTRODUCTORY. Enodis plc, a public limited company formed under the laws
of England and Wales (the "COMPANY"), proposes, subject to the terms and
conditions stated herein, to issue and sell to the several initial purchasers
named in Schedule A hereto (the "PURCHASERS") L 100,000,000 principal amount of
its 10 3/8% Senior Notes due April 15, 2012 (the "OFFERED SECURITIES"), to be
issued under an indenture, dated as of March 26, 2002 (the "INDENTURE"), between
the Company and The Bank of New York, as Trustee. The United States Securities
Act of 1933, as amended, is herein referred to as the "SECURITIES ACT."
Holders (including subsequent transferees) of the Offered Securities will have
the registration rights set forth in the registration rights agreement (the
"REGISTRATION RIGHTS AGREEMENT"), to be dated the date hereof, for so long as
such Offered Securities constitute "TRANSFER RESTRICTED SECURITIES" (as defined
in the Registration Rights Agreement). Pursuant to the Registration Rights
Agreement, the Company will agree to file with the United States Securities and
Exchange Commission (the "COMMISSION") under the circumstances set forth
therein, (i) a registration statement under the Securities Act (the "EXCHANGE
OFFER REGISTRATION STATEMENT") relating to the Company's 10 3/8% Senior Notes in
a like aggregate principal amount as the Company issued under the Indenture,
identical in all material respects to the Offered Securities and registered
under the Securities Act (the "EXCHANGE SECURITIES"), to be offered in exchange
for the Offered Securities (such offer to exchange being referred to as the
"EXCHANGE OFFER") and, (ii) in certain circumstances, a shelf registration
statement pursuant to Rule 415 under the Securities Act (the "SHELF REGISTRATION
STATEMENT" and, together with the Exchange Offer Registration Statement, the
"REGISTRATION STATEMENTS") relating to the resale by certain holders of the
Offered Securities, and the Company agrees to use its best efforts to cause any
such Registration Statement to be declared and remain effective and usable for
the periods specified in the Registration Rights Agreement and to consummate the
Exchange Offer. The Offered Securities and the Exchange Securities are referred
to collectively as the "SECURITIES".
The Company hereby agrees with the several Purchasers as follows:
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to, and agrees with, the several Purchasers that:
(a) A preliminary offering circular and an offering circular relating
to the Offered Securities to be offered by the Purchasers have been
prepared by the Company. Such preliminary offering circular (the
"PRELIMINARY OFFERING CIRCULAR") and offering circular (the "OFFERING
CIRCULAR"), as supplemented as of the date of this Agreement, and any other
document approved by the Company for use in connection with the
contemplated resale of the Offered Securities are hereinafter collectively
referred to as the "OFFERING DOCUMENT". On the date of this Agreement, the
Offering Document does not include 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 Offering Document based upon written information
furnished to the Company by any Purchaser for use therein, it being
understood and agreed that the only such information is that described as
such in Section 7(b) hereof. Except as disclosed in the Offering Document,
on the date of this Agreement, the Company's Annual Report on Form 20-F
most recently filed with the Commission pursuant to the United States
Securities Exchange Act of 1934 (the "EXCHANGE ACT") does not 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, not misleading. Such document, when it was
filed with the Commission, conformed in all material respects to the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder.
(b) The Company has been duly formed and is a validly existing public
limited company under the laws of England and Wales, with power and
authority (corporate and other) to own its properties and conduct its
business as described in the Offering Document; and the Company is duly
qualified to do business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business is material to the Company and requires such
qualification.
(c) Each significant subsidiary of the Company has been duly
incorporated or formed and is an existing corporation, limited company,
limited liability company or limited partnership in good standing under the
laws of the jurisdiction of its formation or incorporation, with power and
authority (corporate and other) to own its properties and conduct its
business as described in the Offering Document; and each significant
subsidiary of the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business is material
to the Company and requires such qualification; all outstanding shares of
capital stock or membership or partnership interests of each significant
subsidiary of the Company have been duly authorized and validly issued and
are fully paid and nonassessable, and all outstanding shares of capital
stock or membership or partnership interests of each subsidiary owned by
the Company, directly or through subsidiaries, are owned free from liens,
encumbrances and defects, except as disclosed in the Offering Document.
(d) The entities listed on Schedule B hereto are directly and wholly
owned by one or several of the Company and the entities listed on such
Schedule B, with the exception of Welbilt Manufacturing (Thailand) Ltd.,
Convotherm Elektrogerate GmbH and New Ton Food Equipment Co. Ltd.
(e) The Indenture has been duly authorized; the Offered Securities
have been duly authorized; and when the Offered Securities are delivered
and paid for pursuant to this Agreement on the Closing Date (as defined
below), the Indenture will have been duly executed and delivered, such
Offered Securities will have been duly executed, authenticated, issued and
delivered and will conform to the description thereof contained in the
Offering Document and the Indenture and such Offered Securities will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their 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.
(f) On the Closing Date, the Exchange Securities will have been duly
authorized by the Company; and when the Exchange Securities are issued,
executed and authenticated in accordance with the terms of the Exchange
Offer and the Indenture, the Exchange Securities will be entitled to the
benefits of the Indenture and will constitute a valid and legally binding
obligation of the Company, enforceable in accordance with their 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.
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(g) The Registration Rights Agreement has been duly authorized by the
Company and, on the Closing Date, will have been duly executed and
delivered by the Company. When the Registration Rights Agreement has been
duly executed and delivered, the Registration Rights Agreement will
constitute a valid and binding agreement 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. On the Closing Date, the Registration
Rights Agreement will conform as to legal matters to the description
thereof in the Offering Document.
(h) Except as disclosed in the Offering Document, there are no
contracts, agreements or understandings between the Company and any person
that, as a result of the issuance and sale of the Offered Securities or of
the signing of this Agreement, would give rise to a valid claim against the
Company or any Purchaser for a brokerage commission, finder's fee or other
like payment.
(i) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement or the
Registration Rights Agreement in connection with the issuance and sale of
the Offered Securities by the Company except for the order of the
Commission declaring the Exchange Offer Registration Statement or the Shelf
Registration Statement effective and except for (i) those required under
state securities or "blue sky" laws or rules or regulations relating
thereto or (ii) in connection with the consummation of the transactions
contemplated by the Registration Rights Agreement, any registration with
the registrar of companies in the United Kingdom of any prospectus provided
in accordance with the Public Offers of Securities Regulations 1995.
(j) Except as disclosed in the Offering Document, under current laws
and regulations of England and Wales and any political subdivision thereof,
all interest, principal, premium, if any, and other payments due or made on
the Offered Securities may be paid by the Company to the holder thereof in
U.K. pounds sterling that may be converted into foreign currency and freely
transferred out of the United Kingdom, and all such payments made to
holders thereof who are non-residents of the United Kingdom will not be
subject to income, withholding or other taxes under laws and regulations of
England and Wales or any political subdivision or taxing authority thereof
or therein and will otherwise be free and clear of any other tax, duty,
withholding or deduction in England and Wales or any political subdivision
or taxing authority thereof or therein and without the necessity of
obtaining any governmental authorization in the United Kingdom or any
political subdivision or taxing authority thereof or therein.
(k) Neither the Company nor any of its subsidiaries is in violation of
its respective Certificate of Incorporation or Memorandum and Articles of
Association or similar constitutional documents or in default in the
performance of any obligation, agreement, covenant or condition contained
in any indenture, loan agreement, mortgage, lease or other agreement or
instrument that is material to the Company and its subsidiaries, taken as a
whole, to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries or their respective property
is bound.
(l) The execution, delivery and performance of the Indenture, this
Agreement and the Registration Rights Agreement by the Company; the
issuance and sale of the Offered Securities by the Company and compliance
with the terms and provisions thereof; and the Rights Offering will not
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order of
any governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any subsidiary of the Company or any of
their properties, or any agreement or instrument to which the Company or
any such subsidiary is a party or by which the Company or any such
subsidiary is bound or to which any of the properties of the Company or any
such subsidiary is subject, or the Certificate of Incorporation or
Memorandum and Articles of Association or similar constitutional documents
of the Company or any such subsidiary, and the Company has full power and
authority to authorize, issue and sell the Offered Securities as
contemplated by this Agreement.
(m) This Agreement has been duly authorized, executed and delivered by
the Company.
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(n) Except as disclosed in the Offering Document, the Company and its
subsidiaries have good and marketable title to all real properties and all
other properties and assets owned by them, in each case free from liens,
encumbrances and defects that would materially affect the value thereof or
materially interfere with the use made or to be made thereof by them; and
except as disclosed in the Offering Document, the Company and its
subsidiaries hold any leased real or personal property under valid and
enforceable leases with no exceptions that would materially interfere with
the use made or to be made thereof by them.
(o) The Company and its subsidiaries possess adequate certificates,
authorities or permits issued by appropriate governmental agencies or
bodies necessary to conduct the business now operated by them and have not
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole ("MATERIAL
ADVERSE EFFECT").
(p) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
might have a Material Adverse Effect.
(q) The Company and its subsidiaries own, possess or can acquire on
reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "INTELLECTUAL PROPERTY RIGHTS")
necessary to conduct the business now operated by them, or presently
employed by them, and have not received any notice of infringement of or
conflict with asserted rights of others with respect to any intellectual
property rights that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(r) Except as disclosed in the Offering Document, neither the Company
nor any of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or restoration
of the environment or human exposure to hazardous or toxic substances
(collectively, "ENVIRONMENTAL LAWS"), owns or operates any real property
contaminated with any substance that is subject to any environmental laws,
is liable for any off-site disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating to any
environmental laws, which violation, contamination, liability or claim
would individually or in the aggregate have a Material Adverse Effect; and
the Company is not aware of any pending investigation which might lead to
such a claim.
(s) Except as disclosed in the Offering Document, there are no pending
actions, suits or proceedings against or affecting the Company, any of its
subsidiaries or any of their respective properties that, if determined
adversely to the Company or any of its subsidiaries, would individually or
in the aggregate have a Material Adverse Effect, or would materially and
adversely affect the ability of the Company to perform its obligations
under the Indenture, this Agreement or the Registration Rights Agreement or
which are otherwise material in the context of the sale of the Offered
Securities; and no such actions, suits or proceedings are threatened or, to
the Company's knowledge, contemplated.
(t) The financial statements included in the Offering Document present
fairly the financial position of the Company and its consolidated
subsidiaries as of the dates shown and their results of operations and cash
flows for the periods shown, and such financial statements have been
prepared in conformity with the generally accepted accounting principles in
the United Kingdom applied on a consistent basis.
(u) Except as disclosed in the Offering Document, since the date of
the latest audited financial statements included in the Offering Document
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole, and,
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except as disclosed in or contemplated by the Offering Document, there has
been no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(v) No "nationally recognized statistical rating organization" as such
term is defined for purposes of Rule 436(g)(2) under the Securities Act (i)
has imposed (or has informed the Company that it is considering imposing)
any condition (financial or otherwise) on the Company's retaining any
rating assigned to the Company or any securities of the Company or (ii) has
indicated to the Company that it is considering (a) the downgrading,
suspension, or withdrawal of, or any review for a possible change that does
not indicate the direction of the possible change in, any rating so
assigned or (b) any change in the outlook for any rating of the Company or
any securities of the Company.
(w) The Company is not an open-end investment company, unit investment
trust or face-amount certificate company that is or is required to be
registered under Section 8 of the United States Investment Company Act of
1940, as amended (the "INVESTMENT COMPANY ACT"); and the Company is not
and, after giving effect to the offering and sale of the Offered Securities
and the application of the proceeds thereof as described in the Offering
Document, will not be an "investment company" as defined in the Investment
Company Act.
(x) No securities of the same class (within the meaning of Rule
144A(d)(3) under the Securities Act) as the Offered Securities are listed
on any national securities exchange registered under Section 6 of the
Exchange Act or quoted in a U.S. automated inter-dealer quotation system.
(y) On the Closing Date, the Indenture will conform in all material
respects to the requirements of the United States Trust Indenture Act of
1939, as amended (the "TIA" or "TRUST INDENTURE ACT"), and the rules and
regulations of the Commission applicable to an indenture which is qualified
thereunder.
(z) Neither the Company, nor any of its affiliates, nor any person
acting on its or their behalf (i) has, within the six-month period prior to
the date hereof, offered or sold in the United States or to any U.S. person
(as such terms are defined in Regulation S under the Securities Act) the
Offered Securities or any security of the same class or series as the
Offered Securities or (ii) has offered or will offer or sell the Offered
Securities (A) in the United States by means of any form of general
solicitation or general advertising within the meaning of Rule 502(c) under
the Securities Act or (B) with respect to any such securities sold in
reliance on Rule 903 of Regulation S ("REGULATION S") under the Securities
Act, by means of any directed selling efforts within the meaning of Rule
902(c) of Regulation S. The Company, its affiliates and any person acting
on its or their behalf have complied and will comply with the offering
restrictions requirement of Regulation S. The Company has not entered and
will not enter into any contractual arrangement with respect to the
distribution of the Offered Securities except for this Agreement.
(aa) The Offered Securities offered and sold in reliance on Regulation
S have been and will be offered and sold only in offshore transactions.
(bb) The sale of the Offered Securities pursuant to Regulation S is
not part of a plan or scheme to evade the registration provisions of the
Securities Act.
(cc) No registration under the Securities Act of the Offered
Securities is required for the sale of the Offered Securities to the
Purchasers as contemplated hereby, assuming the accuracy of the Purchaser's
representations set forth in Section 4 hereof.
(dd) The offer and sale of the Offered Securities by the Purchasers in
the manner contemplated by this Agreement will be exempt from the
registration requirements of the Securities Act by reason of Section 4(2)
thereof and Regulation S thereunder; and it is not necessary to qualify an
indenture in respect of the Offered Securities under the Trust Indenture
Act.
(ee) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to file a registration statement under the Securities
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Act with respect to any securities of the Company or to require the Company
to include such securities with the Securities registered pursuant to any
Registration Statement.
(ff) Neither the Company nor any of its subsidiaries nor any agent
thereof acting on the behalf of them has taken, and none of them will take,
any action that might cause this Agreement or the issuance or sale of the
Offered Securities to violate Regulation T, Regulation U or Regulation X of
the Board of Governors of the U.S. Federal Reserve System.
(gg) The proceeds to the Company from the offering of the Offered
Securities will not be used to purchase or carry any security.
(hh) The Company is subject to Section 13 or 15(d) of the Exchange
Act.
(ii) At an extraordinary general meeting of the shareholders of the
Company held on March 18, 2002, the shareholders approved the increase in
the authorized share capital of the Company and other resolutions in
respect of the issue by the Company to its shareholders of up to
150,861,463 of its ordinary shares; those shares (the "RIGHTS SHARES") have
been admitted for trading on the London Stock Exchange nil paid; the
Company has offered shareholders the Rights Shares (the "RIGHTS OFFERING"),
and the Company's obligation to issue its ordinary shares, pursuant to the
Rights Offering, is unconditional.
3. PURCHASE, SALE AND DELIVERY OF OFFERED SECURITIES. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Purchasers, and the Purchasers agree, severally and not jointly, to purchase
from the Company, at a purchase price of 100% of the principal amount thereof
plus accrued interest from March 26, 2002, to the Closing Date (as hereinafter
defined), the respective principal amounts of Offered Securities set forth
opposite the names of the several Purchasers in Schedule A hereto.
The Company will deliver against payment of the purchase price the Offered
Securities to be offered and sold by the Purchasers in reliance on Regulation S
(the "REGULATION S SECURITIES") in the form of one or more permanent global
securities in registered form without interest coupons (the "REGULATION S GLOBAL
SECURITIES"), which will be deposited with The Bank of New York, in its capacity
as the common depositary (the "COMMON DEPOSITARY"), as custodian for Euroclear
Bank S.A./N.V., as operator of the Euroclear System ("EUROCLEAR"), and
Clearstream Banking, societe anonyme ("CLEARSTREAM, LUXEMBOURG"), and registered
in the name of the common depositary, or its nominee, as nominee for Euroclear
and Clearstream, Luxembourg. The Company will deliver against payment of the
purchase price the Offered Securities to be purchased by each Purchaser
hereunder and to be offered and sold by each Purchaser in reliance on Rule 144A
under the Securities Act (the "144A SECURITIES") in the form of one permanent
global security in definitive form without interest coupons (the "RESTRICTED
GLOBAL SECURITIES") deposited with the common depositary, as custodian for
Euroclear and Clearstream, Luxembourg and registered in the name of the common
depositary, or its nominee, as nominee for Euroclear and Clearstream,
Luxembourg. The Regulation S Global Securities and the Restricted Global
Securities shall be assigned separate International Securities Identification
Numbers ("ISIN'S") and Common Codes. The Restricted Global Securities shall
include the legend regarding restrictions on transfer set forth under "Transfer
Restrictions" in the Offering Document. Until the termination of the restricted
period (as defined in Regulation S) with respect to the offering of the Offered
Securities, interests in the Regulation S Global Securities may only be held by
the participants for Euroclear and Clearstream, Luxembourg. Interests in any
permanent global securities will be held only in book-entry form through
Euroclear or Clearstream, Luxembourg, as the case may be, except in the limited
circumstances described in the Offering Document.
Payment for the Regulation S Securities and the 144A Securities shall be
made by the Purchasers in same-day funds by wire transfer to an account at a
bank acceptable to CSFBL drawn to the order of Enodis plc at the office of
Cravath, Swaine & ▇▇▇▇▇ at 9:00 a.m. (London time), on March 26, 2002, or at
such other time not later than seven full business days thereafter as CSFBL and
the Company determine, such time being herein referred to as the "CLOSING DATE",
against delivery to the common depositary, as custodian for Euroclear and
Clearstream, Luxembourg, of (i) the Regulation S Global Securities representing
all of the Regulation S Securities for the respective accounts of the
participants for Euroclear and Clearstream, Luxembourg and (ii) the Restricted
Global Securities representing all of the 144A Securities. The Regulation S
Global Securities and the Restricted Global
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Securities will be made available for checking at the above office of Cravath,
Swaine & ▇▇▇▇▇ at least 24 hours prior to the Closing Date.
4.REPRESENTATIONS BY PURCHASERS; RESALE BY PURCHASERS. (a) Each Purchaser
severally represents and warrants to the Company that it is an "accredited
investor" within the meaning of Regulation D under the Securities Act.
(b) Each Purchaser severally acknowledges that the Offered Securities
have not been registered under the Securities Act and may not be offered or
sold within the United States or to, or for the account or benefit of, U.S.
persons except in accordance with Regulation S or pursuant to an exemption
from the registration requirements of the Securities Act. Each Purchaser
severally represents and agrees that it has offered and sold the Offered
Securities and will offer and sell the Offered Securities (i) as part of
its distribution at any time and (ii) otherwise until 40 days after the
later of the commencement of the offering and the Closing Date, only in
accordance with Rule 903 or Rule 144A under the Securities Act ("RULE
144A"). Accordingly, neither such Purchaser nor its affiliates, nor any
persons acting on its or their behalf, have engaged or will engage in any
directed selling efforts with respect to the Offered Securities, and such
Purchaser, its affiliates and all persons acting on its or their behalf
have complied and will comply with the offering restrictions requirement of
Regulation S. Each Purchaser severally agrees that, at or prior to
confirmation of sale of the Offered Securities, other than a sale pursuant
to Rule 144A, such Purchaser will have sent to each distributor, dealer or
person receiving a selling concession, fee or other remuneration that
purchases the Offered Securities from it during the restricted period a
confirmation or notice to substantially the following effect:
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933 (the "Securities Act") and may not be offered
or sold within the United States or to, or for the account or benefit
of, U.S. persons (i) as part of their distribution at any time or (ii)
otherwise until 40 days after the later of the date of the
commencement of the offering and the closing date, except in either
case in accordance with Regulation S (or Rule 144A if available) under
the Securities Act. Terms used above have the meanings given to them
by Regulation S."
Terms used in this subsection (b) have the meanings given to them by
Regulation S.
(c) Each Purchaser severally agrees that it and each of its affiliates
has not entered and will not enter into any contractual arrangement with
respect to the distribution of the Offered Securities except for any such
arrangements with the other Purchasers or affiliates of the other
Purchasers or with the prior written consent of the Company.
(d) Each Purchaser severally agrees that it and each of its affiliates
will not offer or sell the Offered Securities in the United States by means
of any form of general solicitation or general advertising within the
meaning of Rule 502(c) under the Securities Act, including, but not limited
to (i) any advertisement, article, notice or other communication published
in any newspaper, magazine or similar media or broadcast over television or
radio, or (ii) any seminar or meeting whose attendees have been invited by
any general solicitation or general advertising. Each Purchaser severally
agrees, with respect to resales made in reliance on Rule 144A of any of the
Offered Securities, to deliver either with the confirmation of such resale
or otherwise prior to settlement of such resale a notice to the effect that
the resale of such Offered Securities has been made in reliance upon the
exemption from the registration requirements of the Securities Act provided
by Rule 144A.
(e) Each of the Purchasers severally represents and agrees that (i) it
has not offered or sold and prior to the date six months after the Closing
Date will not offer or sell any Offered Securities to persons in the United
Kingdom except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or
agent) for the purposes of their businesses or otherwise in circumstances
which have not resulted and will not result in an offer to the public in
the United Kingdom within the meaning of the Public Offers of Securities
Regulations 1995; (ii) it has only
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communicated or caused to be communicated and will only communicate or
cause to be communicated any invitation or inducement to engage in
investment activity (within the meaning of section 21 of the Financial
Services and Markets Act 2000 (the "FSMA")) received by it in connection
with the issue or sale of any Offered Securities in circumstances in which
section 21(1) of the FSMA does not apply to the Company; and (iii) it has
complied and will comply with all applicable provisions of the FSMA with
respect to anything done by it in relation to the Offered Securities in,
from or otherwise involving the United Kingdom.
5. CERTAIN AGREEMENTS OF THE COMPANY. The Company agrees with the several
Purchasers that:
(a) The Company will advise CSFBL promptly of any proposal to amend or
supplement the Offering Document and will not effect such amendment or
supplementation without CSFBL's consent (which consent shall not be
unreasonably withheld or delayed). If, at any time prior to the completion
of the resale of the Offered Securities by the Purchasers, any event occurs
as a result of which the Offering Document as then amended or supplemented
would include an 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
Company promptly will notify CSFBL of such event and promptly will prepare,
at its own expense, an amendment or supplement which will correct such
statement or omission. Neither CSFBL's consent to, nor the Purchasers'
delivery to offerees or investors of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section 6.
(b) The Company will furnish to CSFBL copies of the Offering Document
and all amendments and supplements thereto, in each case as soon as
available and in such quantities as CSFBL requests, and the Company will
furnish to CSFBL on the date hereof three copies of the Offering Circular
signed by a duly authorized officer of the Company, one of which will
include the independent accountants' reports therein manually signed by
such independent accountants. At any time when any Offered Securities or
Exchange Securities constitute restricted securities as defined under Rule
144 of the Securities Act and the Company is not subject to Section 13 or
15(d) of the Exchange Act and is not exempt from reporting pursuant to Rule
12g3-2(b) under the Exchange Act, the Company will promptly furnish or
cause to be furnished, upon request of holders and prospective purchasers
of the Offered Securities, to such holders and purchasers, copies of the
information required to be delivered to holders and prospective purchasers
of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities
Act (or any successor provision thereto) in order to permit compliance with
Rule 144A in connection with resales by such holders of the Offered
Securities. The Company will pay the expenses of printing and distributing
to the Purchasers all such documents.
(c) The Company will arrange for the qualification of the Offered
Securities for sale and the determination of their eligibility for
investment under the laws of such jurisdictions in the United States and
Canada as CSFBL designates and will continue such qualifications in effect
so long as required for the resale of the Offered Securities by the
Purchasers, provided that the Company will not be required to qualify as a
foreign corporation or to file a general consent to service of process in
any such state.
(d) During the period in which any of the Offered Securities or
Exchange Securities remain outstanding, the Company will furnish to CSFBL
and, upon request, to each of the other Purchasers, as soon as practicable
after the end of each fiscal year, a copy of its annual report to
shareholders for such year; and the Company will furnish to CSFBL and, upon
request, to each of the other Purchasers (i) as soon as available, a copy
of each report or financial statement furnished to or filed with the
Commission or any securities exchange on which any class of securities of
the Company is listed, and (ii) from time to time, such other information
concerning the Company as CSFBL may reasonably request.
(e) During the period of two years after the Closing Date, the Company
will, upon request, furnish to any holder of Offered Securities a copy of
all legends contained in the Restricted Global Securities (as defined in
the Indenture) that describe restrictions on transfer applicable to the
Offered Securities.
8
(f) During the period of two years after the Closing Date, the Company
will not, and will not permit any of its affiliates (as defined in Rule 144
under the Securities Act) to, resell any of the Offered Securities that
have been reacquired by any of them.
(g) During the period of two years after the Closing Date, the Company
will not be or become, an open-end investment company, unit investment
trust or face-amount certificate company that is or is required to be
registered under Section 8 of the Investment Company Act.
(h) The Company will pay all expenses (together with VAT where
applicable) incidental to the performance of its obligations under this
Agreement, the Indenture and the Registration Rights Agreement, including
(i) the fees and expenses of the Trustee and its professional advisers;
(ii) all expenses in connection with the execution, issue, authentication,
packaging and initial delivery of the Offered Securities and, as
applicable, the Exchange Securities, the preparation of this Agreement, the
Registration Rights Agreement, the Offered Securities, the Indenture, the
Offering Document and amendments and supplements thereto, and any other
document relating to the issuance, offer, sale and delivery of the Offered
Securities and as applicable, the Exchange Securities; (iii) the cost of
listing the Offered Securities and any expenses incidental thereto; (iv)
the cost of any advertising approved by the Company in connection with the
issue of the Offered Securities; (v) for any expenses (including fees and
disbursements of counsel) incurred in connection with qualification of the
Offered Securities or the Exchange Securities for sale under the laws of
such jurisdictions in the United States and Canada as CSFBL designates and
the printing of memoranda relating thereto; (vi) for any fees charged by
investment rating agencies for the rating of the Offered Securities or the
Exchange Securities (including fees and disbursements of counsel), and
(vii) for expenses incurred in distributing copies of the Offering Document
(including any amendments and supplements thereto) to the Purchasers. The
Company will also pay or reimburse the Purchasers (to the extent incurred
by them) for all travel expenses of the Purchasers and the Company's
officers and employees and any other expenses of the Purchasers and the
Company in connection with attending or hosting meetings with prospective
purchasers of the Offered Securities from the Purchasers.
(i) In connection with the offering, until CSFBL shall have notified
the Company and the other Purchasers of the completion of the resale of the
Offered Securities, neither the Company nor any of its affiliates has or
will, either alone or with one or more other persons, bid for or purchase
for any account in which it or any of its affiliates has a beneficial
interest any Offered Securities or attempt to induce any person to purchase
any Offered Securities, and neither it nor any of its affiliates will make
bids or purchases for the purpose of creating actual, or apparent, active
trading in, or of raising the price of, the Offered Securities.
(j) For a period of 180 days after the date of the initial offering of
the Offered Securities by the Purchasers, and except as the Company is
obligated in connection with the Exchange Offer, the Company will not
offer, sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement under the
Securities Act relating to, any debt securities issued or guaranteed by the
Company and having a maturity of more than one year from the date of issue,
or publicly disclose the intention to make any offer, sale, pledge,
disposition or filing, without the prior written consent of Credit Suisse
First Boston (Europe) Limited (which consent shall not be unreasonably
withheld). The Company will not at any time offer, sell, contract to sell,
pledge or otherwise dispose of, directly or indirectly, any securities
under circumstances where such offer, sale, pledge, contract or disposition
would cause the exemption afforded by Section 4(2) of the Securities Act or
the safe harbor of Regulation S thereunder to cease to be applicable to the
offer and sale of the Offered Securities.
(k) The Company will indemnify and hold harmless the Purchasers
against any documentary, stamp or similar issuance tax, including any
interest and penalties, on the creation, issuance and sale of the Offered
Securities and on the execution and delivery of this Agreement. All
payments to be made by the Company hereunder shall be made without
withholding or deduction for or on account of any present or future taxes,
duties or governmental charges whatsoever unless the Company is compelled
by law to deduct or withhold such taxes, duties or charges. In that event,
the Company shall pay such additional amounts as may be necessary in order
that the net amounts received after such withholding or deduction shall
equal the amounts that would have been received if no withholding or
deduction had been made.
9
(l) The Company will use its best efforts to have the Offered
Securities admitted to trading on the Luxembourg Stock Exchange.
(m) The Company has not issued and will not issue, without the prior
consent of the Purchasers, any press or other public announcement referring
to the Offered Securities unless the announcement adequately discloses the
fact that stabilizing action may take place in relation to the Offered
Securities.
(n) The Company has been informed of the existence of the information
guidance in relation to stabilization published by the U.K. Financial
Services Authority ("FSA") contained in section MAR 2 ▇▇▇ 2G of the FSA
Handbook.
6. CONDITIONS OF THE OBLIGATIONS OF THE PURCHASERS. The obligations of the
several Purchasers to purchase and pay for the Offered Securities will be
subject to the accuracy of the representations and warranties on the part of the
Company herein, to the accuracy of the statements of officers of the Company
made pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) The Purchasers shall have received a letter, dated the date of
this Agreement, of Deloitte & Touche confirming that they are independent
public accountants within the meaning of the Securities Act and the
applicable published rules and regulations thereunder ("RULES AND
REGULATIONS") and to the effect that:
(i) in their opinion the financial statements examined by them
and included in the Offering Document and in the Company's Exchange
Act reports comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and the
related published Rules and Regulations;
(ii) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of Auditing Standards
No. 71, Interim Financial Information, on the unaudited financial
statements included in the Offering Document and in the Exchange Act
reports;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial statements
of the Company, inquiries of officials of the Company who have
responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused them
to believe that:
(A) any material modifications should be made to such
unaudited financial statements for them to be in conformity with
U.K. generally accepted accounting principles;
(B) at the date of the latest available balance sheet read
by such accountants, or at a subsequent specified date not more
than three business days prior to the date of this Agreement,
there was any change in the share capital or any increase in
long-term borrowings of the Company and its consolidated
subsidiaries or, at the date of the latest available balance
sheet read by such accountants, there was any decrease in
consolidated net assets or equity shareholders' funds, as
compared with amounts shown on the latest balance sheet included
in the Offering Document; or
(C) for the period from the closing date of the latest
income statement included in the Offering Document to the closing
date of the latest available income statement read by such
accountants there were any decreases, as compared with the
corresponding period of the previous year, in consolidated net
sales, net operating income, consolidated net income or in the
ratio of earnings to fixed charges;
10
except in all cases set forth in clauses (B) and (C) above for
changes, increases or decreases which the Offering Document
discloses have occurred or may occur or which are described in
such letter; and
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Offering Document and the Exchange Act reports (in
each case to the extent that such dollar amounts, percentages and
other financial information are derived from the general accounting
records of the Company and its subsidiaries subject to the internal
controls of the Company's accounting system or are derived directly
from such records by analysis or computation) with the results
obtained from inquiries, a reading of such general accounting records
and other procedures specified in such letter and have found such
dollar amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in such
letter.
(b) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as one enterprise which, in the judgment of a majority
in interest of the Purchasers including CSFBL, is material and adverse and
makes it impractical or inadvisable to proceed with completion of the
offering or the sale of and payment for the Offered Securities; (ii) any
downgrading in the rating of any debt securities of the Company by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Securities Act), or any public
announcement that any such organization has under surveillance or review
its rating of any debt securities of the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating) or any announcement
that the Company has been placed on negative outlook; (iii) any change in
U.S., English or international financial, political or economic conditions
or currency exchange rates or exchange controls as would, in the judgment
of a majority in interest of the Purchasers, including CSFBL, upon
consultation with the Company, be likely to prejudice materially the
success of the proposed issue, sale or distribution of the Offered
Securities, whether in the primary market or in respect of dealings in the
secondary market; (iv) any material suspension or material limitation of
trading in securities generally on the New York Stock Exchange, the London
Stock Exchange or the Luxembourg Stock Exchange, or any setting of minimum
prices for trading on such exchange, or any suspension of trading of any
securities of the Company on any exchange or in the over-the-counter
market; (v) any banking moratorium declared by U.S. Federal, New York or
English authorities; (vi) any major disruption of settlements of securities
or clearance services in the United States, Luxembourg or England or (vii)
any attack on, outbreak or escalation of hostilities or act of terrorism
involving the United States or England, any declaration of war by the
United States Congress or any other national or international calamity or
emergency if, in the judgment of a majority in interest of the Purchasers,
including CSFBL, upon consultation with the Company, the effect of any such
attack, outbreak, escalation, act, declaration, calamity or emergency makes
it impractical or inadvisable to proceed with completion of the offering or
sale of and payment for the Offered Securities.
(c) The Purchasers shall have received: (i) an opinion dated the
Closing Date of ▇▇▇▇▇▇▇▇ Chance Limited Liability Partnership, special
English counsel to the Company, in the form set forth in Schedule C hereto,
(ii) an opinion dated the Closing Date of ▇▇▇▇▇▇▇▇ Chance Limited Liability
Partnership, special United States and New York counsel to the Company, in
the form set forth in Schedule D hereto, (iii) a letter dated the Closing
Date of ▇▇▇▇▇▇▇▇ Chance Limited Liability Partnership, special United
States counsel to the Company, in the form set forth in Schedule E hereto
and (iv) an opinion dated the Closing Date of Shack ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ P.C., United States counsel to the Company, in the form set forth
in Schedule F hereto.
(d) The Purchasers shall have received from Cravath, Swaine & ▇▇▇▇▇,
counsel for the Purchasers, such opinion or opinions, dated the Closing
Date, with respect to the validity of the Offered Securities, the Offering
Circular, the exemption from registration for the offer and sale of the
Offered Securities by the Company to the several Purchasers and the resales
by the several Purchasers as contemplated hereby and other related matters
as CSFBL may require, and the Company shall have
11
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(e) At an extraordinary general meeting of the shareholders of the
Company held on March 18, 2002, the shareholders shall have approved the
increase in the authorized share capital of the Company and other
resolutions in respect of the Rights Offering; the Rights Shares shall have
been admitted for trading on the London Stock Exchange nil paid; the Rights
Offering shall have commenced and the Company's obligation to issue the
Rights Shares, pursuant to the Rights Offering shall be unconditional.
(f) The Purchasers shall have received a certificate, dated the
Closing Date, of a principal executive officer and a principal financial or
accounting officer of the Company in which such officers, to the best of
their knowledge after reasonable investigation, shall state that the
respective representations and warranties of the Company in this Agreement
are true and correct, that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date, and that, subsequent to the dates of the
most recent financial statements in the Offering Document there has been no
material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole except as set forth in or contemplated by the
Offering Document or as described in such certificate.
(g) The Purchasers shall have received a letter, dated the Closing
Date, of Deloitte & Touche which meets the requirements of subsection (a)
of this Section, except that the specified date referred to in such
subsection will be a date not more than three days prior to the Closing
Date for the purposes of this subsection.
(h) The Offered Securities shall have been listed and admitted to
trading on the Luxembourg Stock Exchange.
Documents described as being "in the agreed form" are documents which are
in the forms which have been initialed for the purpose of identification by
Cravath, Swaine & ▇▇▇▇▇, copies of which are held by the Company and CSFBL, with
such changes as CSFBL may approve.
The Company will furnish the Purchasers with such conformed copies of such
opinions, certificates, letters and documents as the Purchasers reasonably
request. CSFBL may in its sole discretion waive on behalf of the Purchasers
compliance with any conditions to the obligations of the Purchasers hereunder,
whether in respect of an the Closing Date or otherwise.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will indemnify and
hold harmless each Purchaser, its partners, directors and officers and each
person, if any, who controls such Purchaser within the meaning of Section 15 of
the Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which such Purchaser may become subject, under the Securities Act or
the Exchange Act 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 any material fact contained in
the Offering Document, or any amendment or supplement thereto, or any related
preliminary offering circular or the Exchange Act reports, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, including any losses,
claims, damages or liabilities arising out of or based upon the Company's
failure to perform its obligations under Section 5(a) of this Agreement, and
will reimburse each Purchaser for any legal or other expenses reasonably
incurred by such Purchaser in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
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 an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by any Purchaser through CSFBL
specifically for use therein, it being understood and agreed that the only such
information consists of the information described as such in subsection (b)
below.
12
(b) Each Purchaser will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any,
who controls the Company within the meaning of Section 15 of the Securities
Act, against any losses, claims, damages or liabilities to which the
Company may become subject, under the Securities Act or the Exchange Act 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 any material fact contained in the
Offering Document, or any amendment or supplement thereto, or any related
preliminary offering circular, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon and in conformity
with written information furnished to the Company by such Purchaser through
CSFBL specifically for use therein, and will reimburse any legal or other
expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, it being understood and agreed that
the only such information furnished by any Purchaser consists of the
following information in the Offering Document furnished on behalf of each
Purchaser: the third, ninth and eleventh paragraphs of the fourteen
paragraphs under the caption "Plan of Distribution"; PROVIDED, HOWEVER,
that the Purchasers shall not be liable for any losses, claims, damages or
liabilities arising out of or based upon the Company's failure to perform
its obligations under Section 5(a) of this Agreement.
(c) Promptly after receipt by an indemnified party under this Section
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 subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under subsection (a) or (b) above. In case any such
action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof,
the indemnifying party will not be liable to such indemnified party under
this Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of
any pending or threatened action in respect of which any indemnified party
is or could have been a party and indemnity could have been sought
hereunder by such indemnified party unless such settlement includes (i) an
unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action and (ii) does not include
a statement as to or an admission of fault, culpability or failure to act
by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a)
or (b) above, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Purchasers on the other
from the offering of the Offered Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company
on the one hand and the Purchasers on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the
Purchasers on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received
by the Company bear to the total discounts and commissions received by the
Purchasers from the Company under this Agreement. The relative fault shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or the Purchasers and the parties' relative intent, knowledge,
access
13
to information and opportunity to correct or prevent such untrue statement
or omission. The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Purchaser shall be required to contribute any amount in excess of the
amount by which the total discounts, fees and commissions received by such
Purchaser exceeds the amount of any damages that such Purchaser has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. The Purchasers' obligations in
this subsection (d) to contribute are several in proportion to their
respective purchase obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Purchaser within the meaning of the Securities Act or the
Exchange Act; and the obligations of the Purchasers under this Section
shall be in addition to any liability which the respective Purchasers may
otherwise have and shall extend, upon the same terms and conditions, to
each person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act.
8. DEFAULT OF PURCHASERS. If any Purchaser or Purchasers default in their
obligations to purchase Offered Securities hereunder and the aggregate principal
amount of Offered Securities that such defaulting Purchaser or Purchasers agreed
but failed to purchase does not exceed 10% of the total principal amount of
Offered Securities, CSFBL may make arrangements satisfactory to the Company for
the purchase of such Offered Securities by other persons, including any of the
Purchasers, but if no such arrangements are made by the Closing Date, the
non-defaulting Purchasers shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Offered Securities that such
defaulting Purchasers agreed but failed to purchase. If any Purchaser or
Purchasers so default and the aggregate principal amount of Offered Securities
with respect to which such default or defaults occur exceeds 10% of the total
principal amount of Offered Securities and arrangements satisfactory to CSFBL
and the Company for the purchase of such Offered Securities by other persons are
not made within 36 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Purchaser or the Company,
except as provided in Section 9. As used in this Agreement, the term "Purchaser"
includes any person substituted for a Purchaser under this Section. Nothing
herein will relieve a defaulting Purchaser from liability for its default.
9. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Purchasers set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Purchaser, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Offered Securities. If this Agreement is terminated pursuant
to Section 8 or for any reason the purchase of the Offered Securities by the
Purchasers is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Company and the Purchasers pursuant to Section 7 shall remain
in effect. If the purchase of the Offered Securities by the Purchasers is not
consummated for any reason other than solely because of the termination of this
Agreement pursuant to Section 8 or the occurrence of any event specified in
clause (iii), (iv), (v), (vi) or (vii) of Section 6(b), the Company will
reimburse the Purchasers for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
10. NOTICES. All communications hereunder will be in writing and, if sent
to the Purchasers will be mailed, delivered or telegraphed and confirmed to the
Purchasers, c/o Credit Suisse First Boston (Europe) Limited, One ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, Attention: Syndicate Desk, or, if sent to the Company,
will be mailed, delivered or telegraphed and confirmed to it at ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇-▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇;
provided, however, that any notice to a Purchaser pursuant to Section 7 will be
mailed, delivered or telegraphed and confirmed to such Purchaser.
11. SUCCESSORS. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the controlling
persons referred to in Section 7, and no other person will have any
14
right or obligation hereunder, except that holders of Offered Securities shall
be entitled to enforce the agreements for their benefit contained in the second
and third sentences of Section 5(b) hereof against the Company as if such
holders were parties thereto.
12. REPRESENTATION OF PURCHASERS. You will act as agent and attorney in
fact for the several Purchasers in connection with this purchase, and any action
under this Agreement taken by you will be binding on all the Purchasers.
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the Federal
and state courts in the Borough of Manhattan in The City of New York in any suit
or proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
The obligation of the Company in respect of any sum due to any Purchaser
shall, notwithstanding any judgment in a currency other than United States
dollars, not be discharged until the first business day, following receipt by
such Purchaser of any sum adjudged to be so due in such other currency, on which
(and only to the extent that) such Purchaser may in accordance with normal
banking procedures purchase United States dollars with such other currency; if
the United States dollars so purchased are less than the sum originally due to
such Purchaser hereunder, the Company agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify such Purchaser against such
loss. If the United States dollars so purchased are greater than the sum
originally due to such Purchaser hereunder, such Purchaser agrees to pay to the
Company an amount equal to the excess of the dollars so purchased over the sum
originally due to such Purchaser hereunder.
15
If the foregoing is in accordance with the Purchasers' understanding of our
agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement between the Company and the several
Purchasers in accordance with its terms.
Very truly yours,
ENODIS PLC
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Executive Officer
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
By /s/ ▇▇▇▇▇ ▇. Amine
--------------------------------
Name: ▇▇▇▇▇ ▇. Amine
Title: Authorized Signatory
THE ROYAL BANK OF SCOTLAND PLC
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
16
SCHEDULE A
PRINCIPAL AMOUNT OF
MANAGER OFFERED SECURITIES
------- ------------------
Credit Suisse First Boston (Europe) Limited............................ L 50,000,000
The Royal Bank of Scotland plc ........................................ 50,000,000
-------------------
Total......................................................... L 100,000,000
===================
SCHEDULE B
[LIST OF PRINCIPAL SUBSIDIARIES AND INTERMEDIATE HOLDING
COMPANIES.]
Country
of
Name of Subsidiary Formation
------------------ ---------
Aladdin Temp-Rite Canada, Inc. Canada
Aladdin Temp-Rite LLC USA
Austral Refrigeration Pty. Ltd. Australia
▇▇▇▇▇▇▇ Bros., Inc. USA
▇▇▇▇▇▇▇▇▇ General Partnership USA
▇▇▇▇▇▇▇▇▇ Holdings Limited England
▇▇▇▇▇▇▇▇▇ Industrial Holdings Ltd. England
▇▇▇▇▇▇▇▇▇ International Limited Isle of Man
▇▇▇▇▇▇▇▇▇, Inc. USA
▇▇▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇▇▇▇▇▇
Beleggingsmaat schappij Interrub B.V. Netherlands
Castel MAC S.p.A. Italy
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Industries, Inc. USA
Cleveland Range Ltd. Canada
Cleveland Range, Inc. USA
Convotherm Elektrogerate GmbH Germany
DFC Holding Corp. USA
Enodis Corporation USA
Enodis Deutschland GmbH Germany
Enodis France SA France
Enodis Group Limited England
Enodis Holdings Limited England
Enodis Nederland B.V. Netherlands
Enodis Technology Center, Inc. USA
Enodis UK Limited England
Frimont S.p.A Italy
Frymaster L.L.C. USA
Garland Commercial Industries, Inc. USA
Garland Commercial Ranges, Limited Canada
Glenluce Ltd. England
Guyon Productions SA France
▇. ▇▇▇▇▇▇▇▇ Beheer B.V. Netherlands
▇. ▇▇▇▇▇▇▇▇ Exploitatie B.V. Netherlands
Hartek Beverage Handling GmbH Germany
▇▇▇▇▇▇▇ MSC Inc. USA
▇▇▇▇▇ Business Trust USA
▇▇▇▇▇ CNI, Inc. USA
▇▇▇▇▇ Holdings, Inc. USA
▇▇▇▇▇ Industrial Corporation USA
▇▇▇▇▇ ▇▇▇▇▇▇ de Mexico S. RL De CV Mexico
Lincoln Foodservice Products, Inc. USA
Meloria Spectare Ltd. England.
Merco/Savory, Inc. USA
Merrychef Holdings Limited England
Mile High Equipment Company USA
Nashville Holding Company USA
New Ton Food Equipment Co. Ltd. Thailand
Scotsman Beverage Systems Limited England
Scotsman Group Inc. USA
Scotsman Industries, Inc. USA
Temp-Rite International GmbH Germany
Temp-Rite International Holding B.V. Netherlands
Temp-Rite International Holding GmbH Germany
The Delfield Company USA
VentMaster (Europe) Limited England
Viscount Catering Limited England
Welbilt Holding Company USA
Welbilt Manufacturing (Thailand) Ltd. Thailand
Welbilt Walk-Ins, L.P. USA
Whitlenge Acquisition, Ltd. England
Whitlenge Drink Equipment, Limited England
Enodis Property Developments Limited England
Enodis Investments Limited England
Enodis Property Group Limited England
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SCHEDULE C
[FORM OF ENGLISH LAW OPINION OF ▇▇▇▇▇▇▇▇ CHANCE LIMITED LIABILITY PARTNERSHIP.]
2.1 Corporate Existence
2.1.1 The Company is a company duly incorporated with limited liability in
England and has the capacity to ▇▇▇ and be sued in its own name and the power to
conduct its business as described in the Offering Memorandum.
2.1.2 All corporate action required to authorise the execution and delivery
by the Company of the Issue Documents, the provisional allotment of the
Company's shares pursuant to the Rights Issue and the issue of the Notes has
been duly taken.
2.2 Due Execution
The Issue Documents and the certificates for the Notes have been duly executed
by the Company in so far as English Law governs their execution.
2.3 Conflict
Provided the representations, warranties and covenants of the Initial Purchasers
set out in Section 4 of the
Purchase Agreement are true and accurate and are
complied with at all times, neither the execution nor the delivery of the Issue
Documents, nor the performance of the obligations of the Company under those
documents or the Rights Issue Underwriting Agreement, nor the sale of the Notes
by the Initial Purchasers (as defined in the
Purchase Agreement) respectively
conflict with:
2.3.1 any present law or regulation having the force of law in England and
applicable to the Company; or
2.3.2 the terms of any Material Contract (as defined in Schedule 1); or
2.3.3 any term of the memorandum and articles of association of the Company.
2.4 No registration or filing is required in England, and no consent,
approval, authorisation, order or qualification of any court, governmental
agency or body in England is required, in connection with (a) the performance by
the Company of the obligations expressed to be undertaken by it under the
Purchase Agreement or the Registration Rights Agreement or (b) the offering and
sale by the Initial Purchasers of the Notes or the distribution by them of the
Preliminary Offering Circular or the Offering Circular (i) during the period of
six months from the issue date of the Notes, provided that the representations,
warranties and covenants of the Initial Purchasers set out in Section 4 of the
Purchase Agreement are true and accurate and are complied with at all times and
(ii) thereafter, in circumstances which do not result in an offer to the public
in the United Kingdom within the meaning of the Public Offers of Securities
Regulations 1995;
2.5 Governing Law
In any proceedings taken in England for the enforcement of the obligations of
the Company under the
Purchase Agreement, the English courts would recognise the
choice of the laws of
New York to govern that agreement, subject to the
provisions of the Contracts (Applicable Law) ▇▇▇ ▇▇▇▇.
2.6 Enforcement of Foreign Judgement
A judgment by the
New York Courts is not enforceable directly in England. In our
opinion, however, the English courts will enforce by separate action a final and
conclusive judgment for a definite sum of money (not being a sum payable in
respect of taxes or other charges of a like nature or in respect of a fine or
other penalty) entered against
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the Company in connection with the enforcement of the
Purchase Agreement in
civil proceedings in the
New York Courts.
2.7 Accurate Descriptions
The descriptions in the Offering Memorandum of the terms of the Material
Contracts (as defined in Schedule 1) are accurate.
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SCHEDULE D
[FORM OF U.S. LAW OPINION OF ▇▇▇▇▇▇▇▇ CHANCE LIMITED LIABILITY PARTNERSHIP.]
(i) the Indenture constitutes a valid and legally binding obligation of the
Company, enforceable against the Company in accordance with its terms,
except to the extent that such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws affecting creditors' rights generally
and by general equity principles;
(ii) the Notes have been duly authenticated in accordance with the procedures
of the Indenture and have been delivered to and fully paid for by the
Purchasers in accordance with the terms of the
Purchase Agreement;
(iii) each of the Notes is entitled to the benefits of the Indenture and
constitutes a valid and legally binding obligation of the Company,
enforceable against the Company in accordance with its terms, except to
the extent that such enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws affecting creditors' rights generally and by
general equity principles;
(iv) when the Exchange Notes have been issued, executed, authenticated and
delivered in accordance with the terms of the Exchange Offer and the
Indenture, each of the Exchange Notes will be entitled to the benefits of
the Indenture and will constitute a legally valid and binding obligation
of the Company, enforceable against the Company in accordance with its
terms, except to the extent that such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws affecting creditors' rights generally
and by general equity principles;
(v) the Registration Rights Agreement constitutes a legal, valid and binding
obligation of the Company, enforceable against the Company in accordance
with its terms, except to the extent that such enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and by general equity principles and except as rights to
indemnity and contribution may be limited by applicable laws;
(vi) the offer and sale of the Notes in accordance with the terms of the
Purchase Agreement and the Indenture do not require qualification of the
Indenture under the United States Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act");
(vii) registration of the Notes under the United States Securities Act of 1933,
as amended (the "Securities Act"), is not required for (x) the sale or
transfer of the Notes to the Purchasers or (y) the initial resale of the
Notes by the Purchasers, in each case in the manner and under the
circumstances contemplated by the Purchase Agreement and the Offering
Circular, provided, however, that we express no opinion as to any
subsequent reoffer or resale of the Notes;
(viii) the authorization, execution and delivery by the Company of each of the
Indenture, the Purchase Agreement and the Registration Rights Agreement
and the performance of its obligations thereunder do not (a) require any
consent or approval of, giving of notice to, registration with, or taking
of any other action in respect of any governmental authority or agency of
the United States or the State of New York, except for registrations with
the Commission contemplated by the Registration Rights Agreement and the
order of the Commission declaring the Exchange Offer Registration
Statement or the Shelf Registration Statement effective or (b) result in
any violation of any applicable United States federal or New York State
law or, to our knowledge, any rule or regulation of any United States
federal or New York State governmental agency or body having jurisdiction
over the Company or its properties, provided, however, that we express no
opinion with respect to state securities or "blue sky" laws or rules or
regulations thereto;
(ix) the Indenture conforms in all material respects to the requirements of
the Trust Indenture Act and the rules and regulations of the Commission
applicable to an indenture qualified thereunder;
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(x) the Company is not and, after giving effect to the offering and sale of
the Notes and the application of the proceeds thereof as described in the
Offering Circular, will not be an "investment company" as such term is
defined in the United States Investment Company Act of 1940, as amended;
(xi) none of the issue and sale of the Notes by the Company to the Purchasers
in accordance with the terms of the Purchase Agreement and the Indenture,
the execution and delivery of the Purchase Agreement, the Indenture, the
Notes and the Registration Rights Agreement, the consummation of any
other of the transactions contemplated therein or the performance by the
Company of its obligations thereunder will conflict with, result in a
breach of, or constitute a default by the Company under the terms of any
of the Material Contracts;
(xii) the statements in the Offering Circular under the caption "Description of
the Notes," to the extent such statements purport to summarize the terms
of the Notes, fairly summarize the terms of the Notes in all material
respects; the descriptions in the Offering Circular of the Material
Contracts are accurate and fairly present the information required by
Item 10.C of Form 20-F; and
(xiii) under the laws of the State of New York relating to submission to
jurisdiction, the Company, pursuant to Section 14 of the Purchase
Agreement, Section 10.10 of the Indenture and Section 9(l) of the
Registration Rights Agreement, has validly submitted to the non-exclusive
jurisdiction of the federal and state courts in the Borough of Manhattan
in The City of New York, in any suit or proceeding arising out of or
relating to the Purchase Agreement, the Indenture, the Notes, the
Exchange Notes and the Registration Rights Agreement.
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SCHEDULE E
[FORM OF LETTER OF ▇▇▇▇▇▇▇▇ CHANCE LIMITED LIABILITY PARTNERSHIP.]
On the basis of the information that came to our attention in the
course of such review and discussions, considered in light of our understanding
of the U.S. federal securities laws and the experience we have gained in our
practice thereunder, we confirm that nothing has come to our attention that
causes us to believe that the Offering Circular, as of its date or the date
hereof, contained or contains any untrue statement of a material fact or omitted
or omits 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.
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SCHEDULE F
[FORM OF OPINION OF SHACK ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ P.C.]
1. Except as disclosed in the Offering Circular, to our knowledge, there
are no actions, suits or proceedings pending or threatened against or affecting
the Company, any of its subsidiaries or any of their respective properties that
could reasonably be expected to result in a judgment, decree or order,
individually or in the aggregate, having a Material Adverse Effect or which
would materially and adversely affect the ability of the Company to perform its
obligations under the Indenture, the Purchase Agreement or the Registration
Rights Agreement or which are otherwise material in the context of the sale of
the Offered Securities.
2. To our knowledge, neither the Company nor any of the subsidiaries is in
material violation of its respective Organization Documents or in material
default in the performance of any obligation, agreement, covenant or condition
contained in any indenture, loan agreement, mortgage, lease or other agreement
or instrument of which we have knowledge that is material to the Company and its
subsidiaries taken as a whole to which the Company or any of its subsidiaries is
a party or by which the Company or any of its subsidiaries or their respective
property is bound.
3. The execution, delivery and performance of the Indenture, the Purchase
Agreement and the Registration Rights Agreement, the issuance and sale of the
Offered Securities and compliance with the terms and provisions thereof; and the
Rights Offering as described in the Prospectus will not result in a material
breach or violation of any of the terms and provisions of, or constitute a
material default under the Organization Documents of the subsidiaries or any of
the following of which we have knowledge: any order of any court having
jurisdiction over the Company or any subsidiary or any of its properties or any
material agreement or instrument to which the Company or any subsidiary is a
party or by which the Company or any such subsidiary is bound or to which any of
the properties of the Company or any such subsidiary is subject.
4. The execution, delivery and performance of the Indenture, the Purchase
Agreement and the Registration Rights Agreement, the issuance and sale of the
Offered Securities and compliance with the terms and provisions thereof; and the
Rights Offering as described in the Prospectus will not result in a breach or
violation of any of the terms and provisions of, or constitute a default under
any agreement granting any person the right to require the Company to file a
registration statement under the Securities Act with respect to any securities
of the Company.
5. We have no reason to believe that the description in the Offering
Circular of legal and governmental proceedings on page 17 under the heading
"Risk Factors - We may incur losses in connection with certain litigation", and
on pages 74 and 75 under the heading "Legal Proceedings" are not accurate and
fairly present the information.
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