EXHIBIT 99.1
LOCK-UP AGREEMENT
THIS LOCK-UP AGREEMENT (this “ Agreement ”)
dated as of June 27, 2005, is entered into among Foster Wheeler
Ltd., a Bermuda company (“ Company ”) and
the securityholders named on Schedule I hereto, as such Schedule I
is amended from time to time (collectively, the “
Securityholders ”), with respect to the 9.00%
Preferred Securities, Series I issued by FW Preferred Capital Trust
I (Liquidation Amount of $25 per trust security) and guaranteed by
the Company (the “ Trust Securities ”)
owned by the Securityholders.
W
I T N
E S S E T H
:
WHEREAS, the Company intends to make an offer (the “
Exchange Offer ”) to the holders of the Trust
Securities to exchange their Trust Securities for common shares of
the Company, par value $0.01 (“ Common Shares
”);
WHEREAS, as of the date hereof, each Securityholder
beneficially owns and has the power to vote and dispose of the
Trust Securities as identified on Schedule I hereto (such Trust
Securities, together with any Trust Securities that any
Securityholder may acquire after the date of this Agreement, the
“ Securities ”);
WHEREAS, the Company desires to enter into this Agreement in
connection with its efforts to consummate the Exchange Offer, and
in consideration of the value of Common Shares to be delivered to
each Securityholder pursuant to the Exchange Offer, each
Securityholder has agreed to enter into this Agreement;
and
NOW, THEREFORE, in contemplation of the foregoing and in
consideration of the mutual agreements, covenants, representations
and warranties contained herein and intending to be legally bound
hereby, the parties hereto agree as follows:
1.1
Lock-Up . Subject to Section 1.2, each Securityholder hereby
covenants and agrees that during the term of this Agreement, such
Securityholder will not (a) directly or indirectly, sell, transfer,
assign, pledge, hypothecate, tender, encumber or otherwise dispose
of or limit its right to vote in any manner, any of the Securities,
or agree to do any of the foregoing, or (b) take any action which
would have the effect of preventing or disabling such
Securityholder from performing its obligations under this
Agreement. Notwithstanding the foregoing, a Securityholder may
transfer any or all of the Securities as follows: (i) in the case
of a Securityholder that is an entity, to any subsidiary, partner,
or member of such Securityholder, and (ii) in the case of an
individual Securityholder, to such Securityholder’s spouse,
ancestors, descendants or any trust for any of their benefits or to
a charitable trust; provided , however , that in any
such case, prior to and as a condition to the effectiveness of such
transfer, each person or entity to which any of such Securities or
any interest in any of such Securities is or may be
transferred executes and delivers a letter to
the Company in the form described in, and otherwise complies with,
the provisions of subsection 6.4 of this Agreement.
1.2
Tender of Securities . (a) Each Securityholder agrees to
tender the Securities to the Company in the Exchange Offer as soon
as practicable following the commencement of the Exchange Offer,
and in any event not later than ten (10) business days following
the commencement of the Exchange Offer, and so long as the Exchange
Offer substantially conforms with the terms of the Exchange Offer
Documents (as defined below and as they may be amended with the
consent of the Securityholders as provided herein), such
Securityholder shall not withdraw any Securities so tendered unless
the Exchange Offer is terminated or has expired. Subject to the
terms and conditions of the Exchange Offer, the Company hereby
agrees to accept the Securities so tendered and to issue to the
Securityholders 2.16 Common Shares for each Trust Security so
tendered.
(b)
Each Securityholder further agrees that when it tenders its
Securities pursuant to paragraph (a) of this Section 1.2, it will
promptly deliver to the Company at the address set forth in Section
6.9 of this Agreement, copies of all tender documents (whether such
tender is effected by execution of a Letter of Transmittal or via
instructions to a broker-dealer) together with proof of delivery of
such tender documents to the exchange agent, such that the Company
may verify and track the tender of the Securities.
1.3
Public Announcement . Each Securityholder shall consult with
the Company before issuing any press releases or otherwise making
any public statements with respect to the transactions contemplated
herein and shall not issue any such press release or make any such
public statement without the approval of the Company, except as may
be required by law.
1.4
Disclosure . Each Securityholder hereby authorizes the
Company to publish and disclose in any announcement or disclosure
required by the Securities and Exchange Commission (“the
“ SEC ”) or the Nasdaq Stock Market (the
“ Nasdaq ”) or any other national
securities exchange and in the offer documents relating to the
Exchange Offer (including all documents and schedules filed with
the SEC in connection with either of the foregoing), its identity
and ownership of the Securities and the nature of its commitments,
arrangements and understandings under this Agreement;
provided , however , that the Company shall (i)
afford each Securityholder a reasonable opportunity to review such
public disclosures of its identity and ownership and (ii) make any
modifications or revisions thereto reasonably requested by such
Securityholder. The Company hereby authorizes each Securityholder
to make such disclosure or filings as may be required by the SEC or
the Nasdaq or any other national securities exchange.
1.5
Restriction on changes to terms of Exchange Offer . The
conditions to the Exchange Offer shall be substantially as set
forth on Exhibit A. The Company shall not waive any of the
conditions or otherwise modify any material terms or conditions of
the Exchange Offer without the prior written consent of each
Securityholder ; provided , however , that any Securityholder that
reasonably withholds its consent shall be deemed to no longer be a
party to this Agreement.
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1.6
Additional Agreements . If (i) the Company enters into a
lock-up or similar agreement with another holder of Trust
Securities with respect to or relating in any way to an exchange
offer or similar transaction and (ii) such agreement contains any
term, provision or condition that is either more favorable to such
holder of Trust Securities or other party in interest or more
restrictive or onerous to the Company than those contained (or not
contained) in this Agreement, then the Securityholders shall have
the benefit of such term, provision or condition as if it were
fully set forth herein and as if the Securityholders were
signatories to such other agreement for the purpose of making such
term, provision or condition legally valid, binding and enforceable
by and between the Securityholders and the Company.
2.
Representations and Warranties of Securityholders . Each
Securityholder, severally and not jointly, hereby represents and
warrants to the Company, as of the date hereof and as of the date
the Company accepts tenders of Trust Securities pursuant to the
Exchange Offer, that:
2.1
Ownership . Such Securityholder has good and marketable
title to, and is the sole legal and beneficial owner of the
Securities, in each case free and clear of all liabilities, claims,
liens, options, proxies, charges, participations and encumbrances
of any kind or character whatsoever (collectively, “
Liens ”). At the time that the Company accepts
tenders of Trust Securities pursuant to the Exchange Offer, such
Securityholder shall have transferred and conveyed to the Company
or its designee good and marketable title to the Securities, free
and clear of all Liens created by or arising through such
Securityholder.
2.2
Authorization . Such Securityholder has all requisite power
and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby and has sufficient
voting power and sufficient power of disposition with respect to
the Securities with no restrictions on its voting rights or rights
of disposition pertaining thereto. Such Securityholder has duly
executed and delivered this Agreement and this Agreement is a
legal, valid and binding agreement of such Securityholder,
enforceable against such Securityholder in accordance with its
terms, subject to the qualification, however, that enforcement of
the rights and remedies created hereby is subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general application related to or affecting
creditors’ rights and to general equity
principles.
2.3
No Violation . Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated
hereby will (a) require such Securityholder to file or register
with, or obtain any material permit, authorization, consent or
approval of, any governmental agency, authority, administrative or
regulatory body, court or other tribunal, foreign or domestic, or
any other entity, or (b) violate, or cause a breach of or default
under, any material contract or agreement, any statute or law, or
any judgment, decree, order, regulation or rule of any governmental
agency, authority, administrative or regulatory body, court or
other tribunal, foreign or domestic, or any other entity or any
arbitration award binding upon such Securityholder, except for such
violations, breaches or defaults which are not reasonably likely to
have a material adverse effect on such Securityholder's ability to
satisfy its obligations under this Agreement. No proceedings are
pending which, if adversely determined, will have a
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material
adverse effect on any ability to vote or dispose of any of the
Securities. Such Securityholder has not previously assigned or sold
any of the Securities to any third party.
2.4
Each Securityholder Has Adequate Information . Each
Securityholder is a “qualified institutional buyer” as
such term is defined in Rule 144A under the Securities Act of 1933,
as amended (the “ Securities Act ”), and
has adequate information concerning the business and financial
condition of the Company to make an informed decision regarding the
sale of the Securities. Such Securityholder acknowledges that the
Company has not made and does not make any representation or
warranty, whether express or implied, of any kind or character
except as expressly set forth in this Agreement and in the Exchange
Offer Documents (as defined below).
2.5
No Setoff . No Securityholder has any liability or
obligation related to or in connection with the Securities other
than the obligations to the Company as set forth in this
Agreement.
3.
Representations and Warranties of the Company . The Company
hereby represents and warrants to each Securityholder, as of the
date hereof and as of the date that the Company accepts tenders of
Trust Securities pursuant to the Exchange Offer, that:
3.1
Authorization . The Company has all requisite corporate
power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The Exchange Offer
and the transactions contemplated thereby have been duly authorized
by the Company’s Board of Directors, the Company has duly
executed and delivered this Agreement and this Agreement is a
legal, valid and binding agreement of the Company, enforceable
against it in accordance with its terms, subject to the
qualification, however, that enforcement of the rights and remedies
created hereby is subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
application related to or affecting creditors’ rights and to
general equity principles.
3.2
No Violation . Neither the execution and delivery of this
Agreement by the Securityholders nor the consummation by the
Securityholders of the transactions contemplated hereby will (i)
violate any provision of the Company’s memorandum of
association or bye-laws or other organizational documents or those
of any of its material subsidiaries; or (ii) violate, or cause a
breach of or default under, any material contract or agreement, any
statute or law, or any judgment, decree, order, regulation or rule
of any governmental agency, authority, administrative or regulatory
body, court or other tribunal, foreign or domestic, or any other
entity or any arbitration award binding upon the Company, except
for such violations, breaches or defaults which are not reasonably
likely to have a Material Adverse Effect. A “
