EXHIBIT 10.102
SUBSCRIPTION
AGREEMENT
Dated 07 July 1998 WE HEREBY CERTIFY THIS
TO BE A TRUE COPY
between ▇▇▇▇▇▇▇ X ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
IMPAC Europe PLC ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
as the Company ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
and
IMPAC Group, Inc.
as a Subscriber
and
Levelprompt Limited
and
▇▇ ▇▇▇▇▇▇▇▇▇▇
as financial adviser to Bidco PLC
relating to
the subscription for shares in IMPAC Europe PLC
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
CONTENTS
1. Interpretation ............................................... 2
2. Completion of the Bidco Holdings Subscription ................ 4
3. Completion of the Bidco Subscription ......................... 4
4. Loan Arrangements ............................................ 5
5. Market Purchases by Bidco .................................... 5
6. Heritage Equity Commitment ................................... 6
7. Cash Confirmation ............................................ 7
8. Lapse ........................................................ 7
9. Counterparts ................................................. 7
10. Governing Law ................................................ 7
THIS AGREEMENT is dated 7 July 1998 and made
BETWEEN:
(1) IMPAC Europe PLC ("Bidco") a public limited company registered in England
and Wales under number 3487779 whose registered office is at ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇;
(2) IMPAC Group, Inc ("IMPAC"), a Delaware corporation whose principal office
is at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇;
(3) Levelprompt Limited ("Bidco Holdings") a company registered in England and
Wales under number 3577919 whose registered office is at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇; and
(4) ▇▇ ▇▇▇▇▇▇▇▇▇▇ ("▇▇ ▇▇▇▇▇▇▇▇▇▇"), a division of Bankers Trust International
plc, whose registered office is at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇.
WHEREAS:
(A) Bidco, particulars of which are set out in Schedule 1(A), has at the date of
this Agreement an authorized share capital of (pound)80,000,000 divided into
80,000,000 Ordinary Shares of (pound)1 each. Bidco has an issued share
capital of (pound)50,000 divided into 50,000 Ordinary Shares of (pound)1
each of which 49,500 such shares are held by IMPAC and 500 shares are held
by Bidco Holdings.
(B) Bidco Holdings, particulars of which are set out in Schedule 1(B), has at
the date of this Agreement an authorized share capital of (pound)1,000
divided into (pound)1,000 Ordinary Shares of (pound)1 each. Bidco Holdings
has an issued share capital of (pound)2 divided into 2 shares of (pound)1
each both of which are held by IMPAC.
(C) Bidco intends on the date of this Agreement to instruct ▇▇ ▇▇▇▇▇▇▇▇▇▇ to
release a press announcement including details of an offer proposed to be
made on behalf of Bidco for the entire issued share capital of Wrapper
following satisfaction of the Pre-Condition as herein defined.
(D) Subject to the Offer being made and becoming unconditional in all respects
and upon the terms of this Agreement:
(1) IMPAC agrees to subscribe for further ordinary shares in Bidco Holdings;
(2) IMPAC and Bidco Holdings agree to subscribe for further ordinary shares
in Bidco; and
(3) IMPAC and Bidco Holdings agree to lend certain amounts to Bidco which
may be drawn down on demand:
for the purpose of putting Bidco in funds to satisfy the cash
consideration becoming payable by it pursuant to the Offer and to make
market purchases of Wrapper shares during the offer period.
IT IS HEREBY AGREED as follows:-
1. Interpretation
1.1 The following provisions shall have effect for the interpretation of this
Agreement:
"Bidco Completion" means completion of the subscription and
allotment pursuant to Clause 3;
"Bidco Holdings Completion" means completion of the subscription and
allotment pursuant to Clause 2;
"Bidco Holdings Loan Schedule" means Schedule 2A which sets out the terms
of the loan by IMPAC to Bidco Holdings;
"Bidco Loan Schedule" means Schedule 2B which sets out the terms
of the loans by IMPAC and by Bidco Holdings
to Bidco;
"Cash Purchase Shares" means ordinary shares of Wrapper purchased
or agreed to be purchased by IMPAC and/or
Heritage on or after the date hereof and
prior to Bidco Completion;
"Consideration Posting Date" means the date upon which the first posting
is required to be made under the City Code
on Takeovers and Mergers of the
consideration under the Offer to Target
shareholders accepting the Offer.
"Credit Agreement" means the Amended and Restated
Multicurrency Credit Agreement dated as of
March 12 1998 and as amended and restated on
6 July 1999 by and between IMPAC, Bank of
America and others;
"Equity Commitment Letter" means the letter dated 07 July 1998 from
Heritage Fund I L.P., and Heritage Fund II
L.P. to IMPAC Group, Inc. and ▇▇
▇▇▇▇▇▇▇▇▇▇ relating to the equity
commitment of Heritage Fund I L.P. and
Heritage Fund II L.P. in IMPAC Group, Inc.
"Offer" means the Offer proposed to be made after
satisfaction of the Pre-Condition by ▇▇
▇▇▇▇▇▇▇▇▇▇ on behalf of Bidco for the
entire issued share capital of Target,
substantially on the terms set out in the
Press Announcement;
"Offer Document" means the document to be posted to
shareholders of Target containing the Offer;
"Ordinary Shares" means the ordinary shares of (pound)1 each
in the capital of Bidco or Bidco Holdings,
as the case may be, to have the rights and
to be subject to the restrictions set out in
the respective Articles of Association;
"Pre-Condition" means the pre-condition to ▇▇ ▇▇▇▇▇▇▇▇▇▇ on
behalf of Bidco making the Offer that IMPAC
obtains the consent of the holders of the
IMPAC Senior Subordinated Notes to the Offer
and to the financing of the Offer;
"Press Announcement" means the press announcement in the form of
the draft in the agreed form marked "A"
proposed to be released by ▇▇ ▇▇▇▇▇▇▇▇▇▇ on
the date of this Agreement setting out the
terms and conditions of the Offer and
describing the Pre-Condition;
"Receiving Agent" means the person to be appointed as Bidco's
receiving agents in connection with the
Offer;
"Subscribers" means IMPAC and Bidco Holdings Limited;
"Target" or "Wrapper" means Wrapper (Company Number 948696).
1.2 References to the Offer becoming "unconditional in all respects" shall be
construed with reference to the terms and conditions contained in the Offer
Document.
1.3 References to Clauses, Sub-Clauses, Recitals, Schedules and the parties are
references to clauses, sub-clauses and recitals of, and schedules and the
parties to, this Agreement.
1.4 The Recitals and Schedules form part of the operative provisions of this
Agreement and references to this Agreement shall, unless the context
otherwise requires, include references to the Recitals and Schedules.
2. Completion of the Bidco Holdings Subscription
2.1 The Bidco Holdings Completion pursuant to this Agreement shall take place
two business days prior to the Consideration Posting Date (immediately
prior to the Bidco Completion as contemplated by Clause 3) and at the Bidco
Holdings Completion all but not some only of the following shall take
place:
2.1.1 IMPAC shall subscribe in cash for 417,500 Ordinary Shares of Bidco
Holdings at par, payment for which shall be made to the Receiving
Agent in accordance with Sub-Clause 3.1.4 and in satisfaction of
Bidco Holdings' obligation to make payment to Bidco under that
clause and such payment shall discharge any obligation of IMPAC to
make payment under this clause 2.1.1 for the Ordinary Shares of
Bidco Holdings; and
2.1.2 Bidco Holdings shall allot and issue 417,500 Ordinary Shares of
Bidco Holdings to IMPAC and shall enter IMPAC's name in the register
of members of Bidco Holdings as the registered holder of such number
of Ordinary Shares of Bidco Holdings and shall deliver to IMPAC a
share certificate duly executed in respect of such shares.
3. Completion of the Bidco Subscription
3.1 The Bidco Completion pursuant to this Agreement shall take place two
business days prior to the Consideration Posting Date (immediately after
the Bidco Holdings Completion) and at the Bidco Completion all but not some
only of the following shall take place:-
3.1.1 IMPAC shall subscribe in cash the sum of (pound)41,332,500 (less any
amount required to be deducted therefrom pursuant to sub-clause 3.2)
for such number of Ordinary Shares of Bidco at par as shall equal
the amount (after any such deduction) subscribed, payment for which
subscription shall be made in accordance with Sub-Clause 3.1.4;
3.1.2 Bidco Holdings shall subscribe in cash for such number of Ordinary
Shares of Bidco at par as amounts to a total subscription price of
(pound)417,500 payment for which shall be made in accordance with
Sub-Clause 3.1.4;
3.1.3 Bidco shall allot and issue the respective numbers of Ordinary
Shares of Bidco to each of the Subscribers and shall enter the name
of each of the Subscribers in the register of members of Bidco as
the registered holder of the respective numbers of Ordinary Shares
of Bidco allotted to each of them and shall issue and deliver to
each Subscriber a share certificate duly executed by Bidco for the
Ordinary Shares of Bidco subscribed by each of them;
3.1.4 the Subscribers shall pay to the Receiving Agent the respective
subscription monies referred to in Sub-Clauses 3.1.1 and 3.1.2 and
the payment of such monies to the Receiving Agent shall discharge
any obligations of the Subscribers to make payment under clauses
3.1.1 and 3.1.2 for the Ordinary Shares of Bidco; and
3.1.5 IMPAC shall subscribe for such number of Ordinary Shares of Bidco at
par as amounts to a total subscription price equal to the aggregate
purchase price net of costs and VAT of the Cash Purchase Shares, the
consideration for which shall be the transfer by IMPAC to Bidco of
the Cash Purchase Shares, such allotment being conditional upon
compliance by Bidco with the provisions of Section 103 of the
Companies ▇▇▇ ▇▇▇▇ (which Bidco shall be obliged to ensure) in
respect of such allotment.
3.2 The amount which IMPAC shall be obliged to subscribe under Sub-Clause 3.1.1
shall be reduced by 218p multiplied by the number of Cash Purchase Shares.
3.3 To the extent that the amounts to be subscribed by IMPAC under this clause
3 exceed the amounts provided to IMPAC pursuant to the Equity Commitment
Letter such subscription shall be delayed until IMPAC has received funds
pursuant to the Credit Agreement.
4. Loan Arrangements
4.1 The parties agree that subject to the Offer becoming unconditional in all
respects:
4.1.1 IMPAC shall make a loan available to Bidco Holdings on the terms
contained in the Bidco Holdings Loan Schedule;
4.1.2 IMPAC shall make a loan available to Bidco in the amounts and on the
terms contained in the Bidco Loan Schedule;
4.1.3 Bidco Holdings shall make a loan available to Bidco on the terms
contained in the Bidco Loan Schedule; and
4.1.4 Bidco undertakes to make such drawdowns under the loans specified in
Sub-Clause 4.1.2 and 4.1.3 as are necessary to satisfy its
obligations under the City Code on Takeovers and Mergers and
Sections 428-430F of the Companies ▇▇▇ ▇▇▇▇ ("Squeeze Out") and
under the Squeeze Out to pay consideration to shareholders of
Wrapper under the Offer.
5. Market Purchases by Bidco
5.1 If IMPAC and Bidco agree that Bidco should make market purchases of Wrapper
Shares during the offer period, then the parties agree that except as
otherwise agreed by IMPAC and Bidco:
(A) the amount to be applied by Bidco in making such market purchases
shall be funded by IMPAC and Bidco Holdings in the proportion of
99:1; and
(B) the amount to be funded by each of IMPAC and Bidco Holdings shall be
provided as to 50 per cent of such amount by a loan of monies on the
terms of the Bidco Loan Schedule and as to 50 per cent by
subscription of Ordinary Shares of Bidco at par in cash;
5.2 To the extent that Bidco Holdings is required to make a subscription or
loan under clause 5.1, IMPAC shall make a prior loan of monies (under the
terms of the Bidco Holdings Loan Schedule) to and subscription in Bidco
Holdings and the obligation of IMPAC under clauses 2.1.1 and 4.1.1 shall be
reduced by equivalent and respective amounts.
5.3 To the extent that IMPAC shall make a subscription or loan under clause 5.1
its obligations to make a subscription and loan under clauses 3.1.1 and
4.1.2 shall be reduced by equivalent and respective amounts.
5.4 To the extent that Bidco Holdings shall make a subscription or loan under
clause 5.1 its obligations to make a subscription and loan under clauses
3.1.2 and 4.1.2 shall be reduced by equivalent and respective amounts.
6. Heritage Equity Commitment
6.1 If Heritage is obliged to purchase and/or subscribe additional stock in US$
pursuant to the terms of the Equity Commitment Letter, IMPAC shall procure
that Bidco shall have sufficient funds in sterling to pay all accepting
Target shareholders under the Offer and fund the obligations of Bidco under
the Squeeze Out and the parties agree that such $ funds shall be swapped
into sterling and that:
6.1.1 the additional sterling amounts to be provided to Bidco shall be
funded by IMPAC and Bidco Holdings in the proportion of 99:1; and
6.1.2 the amount to be funded by each of IMPAC and Bidco Holdings shall be
provided as to 50% of such amount by a loan of monies on the terms
of the Bidco Loan Schedule and as to 50% by subscription of
Ordinary Shares of Bidco at par in cash.
6.2 For the avoidance of doubt the obligations on Bidco Holdings and IMPAC to
make the subscriptions or loans referred to under Clause 6.1 shall not
reduce any obligation or liability on IMPAC or Bidco Holdings under
Clauses 2, 3 or 4 of this agreement to loan monies or make subscriptions
referred to in such Clauses. The obligation is on IMPAC to make or procure
such subscriptions or loans.
7. Cash Confirmation
Each of IMPAC and Bidco Holdings acknowledges that ▇▇ ▇▇▇▇▇▇▇▇▇▇ will place
reliance on its undertakings in Clauses 2, 3, 4, 5 and 6 of this Agreement for
the purposes of the cash confirmation to be given by it under Rule 24.7 of the
City Code on Takeovers and Mergers.
8. Lapse
This Agreement will lapse and determine at the time that the "Aggregate
Commitment" as defined in the Credit Agreement is reduced to zero in accordance
with Section 2.07(a) thereof.
9. Counterparts
This Agreement may be executed in any number of counterparts with the same
effect as if the signatures to each such counterpart were upon the same
instrument.
10. Governing Law
This Agreement shall be governed by and construed in accordance with English law
and the parties hereby submit to the non-exclusive jurisdiction of the High
Court in London for the purpose of hearing and determining any dispute arising
out of this Agreement and for the purpose of enforcement of any judgment against
their respective assets.
ACCORDINGLY each of the parties has executed this Agreement on the date set out
at the top of page 1.
SIGNED by ▇▇▇▇▇▇▇ ▇▇▇▇▇ ) /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
for and on behalf of )
IMPAC GROUP, INC. )
SIGNED by ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ) /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
for and on behalf of )
IMPAC EUROPE PLC )
SIGNED by ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ) /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
for and on behalf of )
LEVELPROMPT LIMITED )
SIGNED by ▇. ▇. ▇▇▇▇▇▇▇▇▇ ) /s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇
for and on behalf of )
▇▇ ▇▇▇▇▇▇▇▇▇▇ )
SCHEDULE:1(A)
Particulars of Bidco
Name: IMPAC Europe Public Limited Company
Registered office: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
Directors: ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Secretary: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Registered Number: ▇▇▇▇▇▇▇
Accounting Reference Date: 31st December
Date of Incorporation: 2 January 1998
Authorised Share Capital: (pound)80,000,000
Issued Share Capital: (pound)50,000
SCHEDULE:1(B)
Particulars of Bidco Holdings
Name: Levelprompt Limited
Registered office: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
Directors: ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Secretary: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Registered Number: ▇▇▇▇▇▇▇
Accounting Reference Date: 31st December
Date of Incorporation: 9 June 1998
Authorised Share Capital: (pound)1,000
Issued Share Capital: (pound)2
SCHEDULE :2(A)
Bidco Holdings Loan Schedule
1. IMPAC shall make available a loan in the sum of (pound)418,000 to Bidco
Holdings on which Bidco may draw down in whole or in part on demand (the
"Bidco Holdings Loan").
2. Bidco Holdings will pay interest on the Bidco Holdings Loan at such rate or
rates of interest as IMPAC may from time to time specify to Bidco Holdings
as representing the cost to IMPAC of funding the Bidco Holdings Loan using
the proceeds of drawings under the Credit Agreement. Such interest shall be
payable on such dates as IMPAC may from time to time specify.
3. The sums drawn down under the Bidco Holdings Loan shall become repayable on
demand by IMPAC and, in the event if not demanded before such date, on the
date which is 5 years after the date of this Agreement.
SCHEDULE: 2(B)
Bidco Loan Schedule
1. IMPAC and Bidco Holdings shall make available in the proportion of 99:1 a
loan in the sum of (pounds)41,800,000 on which Bidco may draw down in whole
or in part on demand (the "Bidco Loan").
2. Bidco will pay interest on the Bidco Loan at such rate or rates of interest
as IMPAC may from time to time specify to Bidco as representing the cost to
IMPAC of funding the Bidco Loan using the proceeds of drawings under the
Credit Agreement. Such interest shall be payable on such dates as IMPAC may
from time to time specify.
3. The sums drawn down under the Bidco Loan shall become repayable on demand
by IMPAC and, in the event if not demanded before such date, on the date
which is 5 years after the date of this Agreement.
