EXHIBIT 10.14
CONTRIBUTION AND SHARE SUBSCRIPTION AGREEMENT
CONTRIBUTION AND SHARE SUBSCRIPTION AGREEMENT, dated as of July 22,
1998, among TA I Limited, a company organized under the laws of England and
Wales ("NEWCO 1"), XX XX Limited, a company organized under the laws of England
and Wales ("NEWCO 2"), TA III plc, a company organized under the laws of England
and Wales ("NEWCO 3"), Trinity Acquisition plc, a company organized under the
laws of England and Wales ("BIDCO"), KKR 1996 Fund (Overseas), Limited
Partnership, an Alberta limited partnership ("KKR 1996 FUND"), and Profit
Sharing (Overseas), Limited Partnership, an Alberta limited partnership ("KKR
PROFIT SHARING" and, together with the KKR 1996 Fund, the "KKR PARTNERSHIPS").
RECITALS
A. The current authorized share capital of Newco 1 is (pound)100
divided into 100 ordinary shares of par value (pound)1 per share (the "NC 1
ORDINARY SHARES") of which one ordinary share of (pound)1 is issued and fully
paid and held by thE KKR 1996 Fund.
B. The current authorized share capital of Newco 2 is (pound)100
divided INto 100 ordinary shares of par value (pound)1 per share of which one
ordinary shaRe of (pound)1 is issued and fully paid and held by Newco 1.
C. The current authorized and issued share capital of Newco 3 is
(pound)50,000 divided into 50,000 ordinary shares of par value (pound)1 per
share. The KKR 1996 Fund holds one share fully paid and the remainder are held
by Newco 2 (49,998 shares of which are paid up as to one quarter and one share
of which is fully paid).
D. The current authorized and issued share capital of Bidco is
(pound)50,000 divided into 50,000 ordinary shares of par value (pound)1 per
share. The KKR 1996 Fund holds one share fully paid and the remainder are held
by Newco 3 (49,998 shares of which are paid up as to one quarter and one share
of which is fully paid).
E. In connection with the offer to purchase (the "OFFER TO
PURCHASE") and the acquisition of up to 9.9% of the ordinary shares of the
Xxxxxx Xxxxxxx Group plc (the "WC SHARES") outside the Offer to Purchase (the
"SHARE ACQUISITION"), (i) the KKR 1996 Fund desires to make an investment of at
least (pound)165 million (or the dollar equivalent) to KKR Profit Sharing. KKR
Profit Sharing will invest such amount in the capital of Newco 1 and will cause
Newco 1 and the direct and indirect subsidiaries of Newco 1 to invest such
monies in the capital of Bidco to permit Bidco to obtain the level of equity
financing necessary, in light of the other financing sources available to Bidco,
to fund the Offer to Purchase and the Share Acquisition on the terms set forth
below.
AGREEMENT
NOW THEREFORE, the parties hereto agree as follows:
ARTICLE 1
CAPITAL CONTRIBUTION AND SHARE SUBSCRIPTION
SECTION 1.1 CAPITAL INVESTMENT. Upon the terms and subject to the
conditions of this Agreement, the KKR 1996 Fund agrees to invest in the capital
of KKR Profit Sharing an amount (in dollars or sterling) sufficient to enable
KKR Profit Sharing to invest, in turn, in Newco 1 an amount equivalent to at
least (pound)165 million (the "Minimum Capital Contribution") and to contribute
one NC 1 Ordinary Share to KKR Profit Sharing, and KKR Profit Sharing agrees to
accept the Minimum Capital Contribution and the one NC 1 Ordinary Share from the
KKR 1996 Fund. If the KKR 1996 Fund becomes required to make additional
investments in KKR Profit Sharing to enable KKR Profit Sharing to subscribe for
additional ordinary shares of Newco 1, par value (pound)0.10 per share ("Newco 1
Ordinary Shares"), KKR Profit Sharing agrees to accept any such additional
investment and, upon receipt, to so subscribe.
SECTION 1.2 SHARE SUBSCRIPTION. Upon the terms and subject to the
conditions of this Agreement, (i) KKR Profit Sharing will invest at least
(pound)165 million in the capital of Newco 1, such investment to consist of up
to 82.5 million Newco 1 Ordinary Shares at a price of (pound)2.00 per share,
provided (x) that in connection with the management equity investment program to
be implemented for officers and employees of Xxxxxx Xxxxxxx Group plc and its
subsidiaries, up to (pound)20 million of such investment may, at the election of
KKR Profit Sharing, be for convertible preferred shares of Newco 1, or other
equity securities, which are either redeemable for cash or convertible into
Newco 1 Ordinary Shares at a redemption or conversion price, as the case may be,
equal to the subscription price, and (y) that if KKR Profit Sharing subscribes
for additional Newco 1 Ordinary Shares, Newco 1 will issue additional Newco 1
Ordinary Shares at (pound)2.00 per share, (ii) Newco 2 agrees to issue Newco 1 a
number of ordinary shares, par value (pound)0.10 per share ("Newco 2 Ordinary
Shares"), and Newco 1 agrees to subscribe for a number of Newco 2 Ordinary
Shares with the proceeds of at least (pound)165 million received by Newco 1 from
the issuance of Newco 1 Ordinary Shares at a subscription price of (pound)2.00
per share, (iii) Newco 3 agrees to issue Newco 2 a number of ordinary shares,
par value (pound)0.10 per share ("Newco 3 Ordinary Shares"), and Newco 2 agrees
to subscribe for a number of Newco 3 Ordinary Shares with the proceeds of at
least (pound)165 million received by Newco 2 from the issuance of Newco 2
Ordinary Shares at a subscription price of (pound)2.00 per share, and (iv) Bidco
agrees to issue a number of ordinary shares, par value (pound)0.10 per share
("Bidco Ordinary Shares"), to Newco 3, and Newco 3 agrees to subscribe for a
number of Bidco Ordinary Shares with the proceeds of at least (pound)165 million
received by Newco 3 from the issuance of Newco 3 Ordinary Shares at a
subscription price of (pound)2.00 per share.
Section 1.3 The closings of the subscription and sale of the
Subscription Shares hereunder (the "Closings") shall take place at the offices
of Xxxxxxxx Chance, 000 Xxxxxxxxxx, Xxxxxx XX0X 0XX. Bidco and its advisors will
determine the amount of funds due from time to time to purchase WC Shares in the
Offer to Purchase and the date (each such date, a "Closing Date") on which such
funds need to be received in order to permit payment to the persons tendering WC
Shares in such Offer to Purchase when due pursuant to the terms of such Offer to
Purchase. Newco 1 and its subsidiaries shall cause a notice to be prepared (a
"Closing Notice") and sent to KKR Profit Sharing and to the other subscribers to
the capital of Newco 1 and Newco 2 at least five Business Days prior to each
Closing Date. Each Closing Notice shall set forth the
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amount of funds to be delivered and the amount and class of securities to be
subscribed for by each subscriber. Each subscriber shall deliver funds to such
bank accounts and take delivery of the relevant Subscription Shares as the
applicable issuer and subscriber that are parties hereto may agree.
ARTICLE 2
TERMINATION
SECTION 2.1 GROUNDS FOR TERMINATION. This Agreement may be
terminated at any time prior to the Closing:
(a) if the Offer to Purchase (as originally made or as extended)
ceases to be capable of becoming or being declared unconditional in all
respects; or
(b) the Offer to Purchase is not made within seven days of the date
of this Agreement.
SECTION 2.2 EFFECT OF TERMINATION. If this Agreement is terminated
as permitted by Section 2.1, such termination shall be without liability of any
party (or any stockholder, general partner, limited partner, member, director,
officer, employee, agent, consultant or representative of such party) to any of
the other parties to this Agreement, and this Agreement shall be of no further
force or effect. Notwithstanding the foregoing, the provisions of Section 3.4
shall survive any termination hereof pursuant to Section 2.1.
ARTICLE 3
MISCELLANEOUS
SECTION 3.1 NOTICES. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given or made
(and shall be deemed to have been duly given or made upon receipt) by delivery
in person, by courier service, by cable, by telecopy, by telegram, by telex or
registered or certified mail (postage prepaid, return receipt requested) as
follows (or at such other address for a party as shall be specified in a notice
given in accordance with this Section 3.1):
if to a KKR Partnership, to:
x/x Xxxxxxxx Xxxxxx Xxxxxxx & Co.
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Telecopy: (000) 000-0000
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with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
00 Xxxxxxxxxxx
00xx Xxxxx
Xxxxxx XX0X 0XX
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telecopy: 00-000-000-0000
if to Newco 0, Xxxxx 0, Xxxxx 3 or Bidco, to:
x/x Xxxxxxxx Xxxxxx Xxxxxxx & Co.
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
00 Xxxxxxxxxxx
00xx Xxxxx
Xxxxxx XX0X 0XX
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telecopy: 00-000-000-0000
SECTION 3.2 SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and lawful assigns, provided that no party may assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of each other party hereto.
SECTION 3.3 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER. This
Agreement will be governed by, and construed in accordance with, the laws of the
State of New York, without giving effect to the principles of conflict of laws
thereof. The parties to this Agreement hereby agree to submit to the
jurisdiction of the courts of the State of New York, the courts of the United
States of America for the Southern District of New York, and appellate courts
from any thereof in any action or proceeding arising out of or relating to this
Agreement. The parties hereto irrevocably and unconditionally waive trial by
jury in any legal action or proceeding in relation to this Agreement and for any
counterclaim therein.
SECTION 3.4 NON-RECOURSE. Notwithstanding anything that may be
expressed or implied in this Agreement, the other parties hereto, by their
acceptance of the benefits hereof, covenant, agree and acknowledge that, no
person other than the KKR Partnerships shall have any obligation hereunder and
that, notwithstanding that the KKR Partnerships are partnerships, no recourse
hereunder or any documents or instruments delivered in connection herewith shall
be had against any current or future officer, agent or employee of the KKR
Partnerships or against any current or future general or limited partner of the
KKR Partnerships or any current or future director, officer, employee, general
or limited partner, member, affiliate or assignee of any of the
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foregoing, whether by the enforcement of any assessment or by any legal or
equitable proceeding, or by virtue of any statute, regulation or other
applicable law, it being expressly agreed and acknowledged that no personal
liability whatsoever shall attach to, be imposed on or otherwise be incurred by
any current or future officer, agent or employee of the KKR Partnerships or any
current or future general or limited partner of the KKR Partnerships or any
current or future director, officer, employee, general or limited partner,
member, affiliate or assignee of any of the foregoing, as such, for any
obligations of the KKR Partnerships under this Agreement or any documents or
instruments delivered in connection herewith or for any claim based on, in
respect of or by reason of such obligations or their creation.
SECTION 3.5 COUNTERPARTS; THIRD PARTY BENEFICIARIES. This Agreement
may be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received a counterpart hereof signed by the other party hereto. No
provision of this Agreement shall confer upon any person other than the parties
hereto any rights or remedies hereunder.
SECTION 3.6 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to the subject mater of this
Agreement and supersedes all prior agreements and understandings, both oral and
written, between the parties with respect to the subject matter of this
Agreement.
SECTION 3.7 CAPTIONS. The captions herein are included for
convenience of reference only and shall be ignored in the construction or
interpretation hereof.
SECTION 3.8 SEVERABILITY. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such provision
shall be deemed to be excluded from this Agreement and the balance of this
Agreement shall be interpreted as if such provision were so excluded and shall
be enforced in accordance with its terms to the maximum extent permitted by law.
SECTION 3.9 INTERPRETATION. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
KKR 1996 FUND (OVERSEAS), LIMITED
PARTNERSHIP
By: KKR Associates II (1996), Limited
Partnership, its general partner
By: KKR 1996 Overseas Limited, its
general partner
By: /s/ Xxxxx Xxxxxx
--------------------
Authorized Signatory
PROFIT SHARING (OVERSEAS), LIMITED
PARTNERSHIP
By: KKR 1996 Fund (Overseas), Limited
Partnership, as its general partner
By: KKR Associates II (1996), Limited
Partnership, its general partner
By: KKR 1996 Overseas Limited, its
general partner
By: /s/ Xxxxx Xxxxxx
--------------------
Authorized Signatory
TA I LIMITED
By /s/ Xxxxx Xxxxxxx
--------------------
Name:
Title:
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XX XX LIMITED
By: /s/ Xxxxx Xxxxxxx
--------------------
Name:
Title:
TA III PLC
By: /s/ Xxxxx Xxxxxxx
--------------------
Name:
Title:
TRINITY ACQUISITION PLC
By: /s/ Xxxxx Xxxxxxx
--------------------
Name:
Title:
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