Exhibit 99.1
LOCK-UP
AGREEMENT
THIS LOCK-UP
AGREEMENT (this “
Agreement ”) dated as of October 7, 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 10.359% Senior Secured Notes Due September 15,
2011, Series A issued by Foster Wheeler LLC and guaranteed by the
Company (the “ Senior Notes ”) owned by
the Securityholders.
W
I
T N E S S E T
H :
WHEREAS,
the Company
intends to (i) make an offer (the “ Exchange
Offer ”) to exchange its common shares, par value
$0.01 per share (“ Common Shares ”), for
up to $150 million of aggregate principal amount of Senior Notes
and (ii) seek the consent from the holders (“
Consents ”) of the Senior Notes (the “
Consent Solicitation ”) to certain amendments
to the indenture governing the Senior Notes;
WHEREAS
, the Exchange
Offer shall remain open for a period of at least twenty business
days following commencement thereof, subject to extension by the
Company (as such date may be extended, the “ Expiration
Date ”);
WHEREAS
, the Consent
Solicitation shall remain open for a period of at least ten
business days following the commencement thereof, subject to
extension by the Company in accordance with the terms of this
Agreement (as such date may be extended, the “ Consent
Date ”);
WHEREAS,
as of the date
hereof, each Securityholder beneficially owns and has the power to
vote and dispose of the aggregate principal amount of Senior Notes
as set forth on Schedule I hereto (such aggregate principal amount
of Senior Notes, together with any additional principal amount of
Senior Notes that any Securityholder may acquire after the date of
this Agreement, and all accrued and unpaid interest thereon, the
“ Securities ”);
WHEREAS,
the Company
desires to enter into this Agreement in connection with its efforts
to consummate the Exchange Offer and obtain the Consent of at least
a majority of the outstanding aggregate principal amount of Senior
Notes (the “ Requisite Consent ”) in the
Consent Solicitation, and in consideration of the value of Common
Shares and the opportunity to receive the Consent Fee (as defined
herein) pursuant to the Exchange Offer and Consent Solicitation,
respectively, 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.
Certain
Covenants .
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 and Delivery of Consents . (a) Each Securityholder
agrees to tender the Securities to the Company in the Exchange
Offer and deliver its Consent as soon as practicable following
the
Exhibit 99.1
commencement of
the Exchange Offer and Consent Solicitation, and in any event not
later than ten (10) business days following the commencement of the
Exchange Offer and Consent Solicitation, and so long as the
Exchange Offer and Consent Solicitation substantially conform 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 or any Consent so delivered unless the
Exchange Offer and Consent Solicitation have terminated or expired.
Immediately following such tender of Securities and delivery of
Consents, each Securityholder shall provide the Company with
sufficient information to identify the Securities and Consents so
delivered, including, without limitation, the name of such
Securityholder’s custodian participant in the Depository
Trust Company and a VOI number from the Depository Trust Company
identifying each tender of Securities (the “ Tender
Information ”). Subject to the terms and conditions
of the Exchange Offer and Consent Solicitation, the Company hereby
agrees to (i) accept the Securities so tendered and to issue to the
Securityholders 40.179 Common Shares for each $1,000 in aggregate
principal amount of Senior Notes so tendered and (ii) accept the
Consents so delivered and to pay a consent fee (the “
Consent Fee ”) to the Securityholders in an
amount equal to $10 for each $1,000 in aggregate principal amount
of Senior Notes for which a Consent is delivered, provided ,
however , no Consent Fees shall be payable unless the
Requisite Consent is obtained by the Consent Date. The Company
shall deliver such Common Shares to the Securityholders within four
business days following the Consent Date and, if applicable, the
Consent Fees within four business days following the Expiration
Date. The Company shall not be permitted to extend the Consent
Date, provided , however , that should any
Securityholder not tender its Securities, deliver its Consent and
provide the Company with the Tender Information within ten business
days of the commencement of the Exchange Offer and Consent
Solicitation, the Company may extend the Consent Date in
incremental periods of 3 business days through the Expiration Date
or until such time as each Securityholder has tendered its
Securities, delivered its Consent and provided the Company with the
Tender Information. The Company shall issue a press release prior
to the open of trading on the Nasdaq Stock Market on Monday,
October 10, 2005, and, as soon as practicable, file a Current
Report on Form 8-K with a copy of such press release attached with
the Securities and Exchange Commission, which press release shall
(i) announce the Company’s intention to launch the Exchange
Offer and Consent Solicitation as described in the Exchange Offer
Documents, including (x) the number of Common Shares each tendering
holder of Senior Notes will receive in the Exchange Offer should
such holder’s Senior Notes be accepted by the Company, and
(y) the amount of the Consent Fee, and (ii) the existence of this
Agreement with the Securityholders, provided ,
however , such press release shall not be required to
include the method by which holders of the Senior Notes may tender
such Senior Notes or otherwise launch the Exchange Offer and
Consent Solicitation.
(b) Each
Securityholder further agrees that when it tenders its Securities
and delivers its Consents 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 and
consent documents (whether such tender is effected by execution of
a Letter of Transmittal and Consent or via instructions to a
broker-dealer) together with proof of delivery of such tender and
consent documents to the exchange agent, such that the Company may
verify and track the tender and consent 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
or the Consent Solicitation (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.
Exhibit 99.1
1.5
Restriction on
changes to terms of Exchange Offer . The conditions to the
Exchange Offer and Consent Solicitation 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 and Consent Solicitation 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.
1.6
Additional
Agreements . If (i) the Company enters
into a lock-up or similar agreement with another holder of Senior
Notes 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 Senior Notes 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 Senior Notes and delivered Consents pursuant to
the Exchange Offer and Consent Solicitation, respectively,
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 Senior Notes 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 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 (i) a
“qualified institutional buyer” as such term is defined
in Rule 144A under the Securities Act of 1933, as amended (the
“ Securities Act ”) or (ii) an
“accredited investor” as such term is defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act, and in each
case, such Securityholder is knowledgeable, sophisticated and
experienced in making, and is qualified to make, decisions with
respect to investments in, and dispositions of, securities
representing an investment decision like that involved in the
Exchange Offer, and has requested, received, reviewed and
considered all information it deems relevant in making an informed
investment decision in the Exchange Offer and each Securityholder
has been furnished with, or had access to, all materials relating
to the business, finances and
Exhibit 99.1
operations of
the Company (including all reports filed with the Commission) and
materials relating to the Exchange Offer which have been requested
by such Securityholder, and each Securityholder has been afforded
the opportunity to ask questions of the Company. Such
Securityholder acknowledges that the Company has not made and does
not make any representation or warranty, whether express or
im
