Dated 27 May 2008
ENODIS plc
and
THE MANITOWOC COMPANY,
INC.
AMENDMENT AGREEMENT
relating to the
Implementation Agreement
Linklaters
Xxx Xxxx Xxxxxx
Xxxxxx XX0X 0XX
Telephone (00-00) 0000 0000
Facsimile (00-00) 0000 0000
Ref: Xxxxxxx Xxxxxx /
Xxxxx Xxxxxxxxxx
This Amendment Agreement is
made on 27 May 2008 between:
| (1) |
ENODIS
plc whose registered office is at Xxx Xxxxx, 000 Xxxx Xxxxxxx, Xxxxxx XX0X
0XX (the “Company” or “Enodis”); and |
| (2) |
THE
MANITOWOC COMPANY, INC. whose head office is at 0000 Xxxxx 00xx Xxxxxx, XX
Xxx 00, Xxxxxxxxx, XX 00000-0000 (“Manitowoc”). |
Whereas:
| (A) |
On
14 April 2008 Enodis and Manitowoc entered into an implementation agreement
(the “Agreement”) setting out certain mutual commitments to
implement the Scheme and certain matters relating to the conduct of the
business of the Company and its Group; and |
| (B) |
On
19 May 2008 Manitowoc announced an increased offer for the entire issued and to
be issued share capital of the Company of 294 xxxxx per Enodis Share (the “Increased
Offer”). |
| (C) |
The
parties have agreed that certain amendments to the Agreement be made as set out
below. |
It is agreed as follows:
| 1.1 |
In
this Amendment Agreement, unless otherwise defined herein, words defined in the Agreement
shall have the same meanings when used herein. |
| 1.2 |
The
parties agree that the definition of “Acquisition” in the Agreement
shall be replaced by the following definition: |
| |
“Acquisition” means
the proposed acquisition by Bidco of the entire issued and to be issued ordinary share
capital of the Company which is to be effected by means of a scheme of arrangement under
Part 26 of the 2006 Act (involving the Reduction) or, if Manitowoc so elects in
accordance with Clause 3.8 of the Agreement and the Panel consents, by means of an Offer,
as described in the press announcement issued by Manitowoc on 19 May 2008 relating to the
Increased Offer. |
| |
The
Company acknowledges that as of the date of this Amendment Agreement compliance with
Clause 3.9 of the Agreement with respect to the Increased Offer would not constitute a
breach of the Directors’ fiduciary duties and, as a result, confirms the application
of Clause 3.9 of the Agreement to the Increased Offer. |
| |
The
parties agree that Clause 5 of the Agreement shall be reinstated as if the Directors had
not withdrawn their recommendation of Manitowoc’s offer as described in the press
announcement issued by Manitowoc on 14 April 2008 (the “Original Offer”)
and shall continue to apply in accordance with its terms, with the reference in Clause
5.1 to the Directors withdrawing or adversely modifying or qualifying their
recommendation to shareholders in the Company to vote in favour of the Scheme and the
General Meeting Resolutions (or if applicable to accept an Offer) being construed in
relation to the Increased Offer. |
| 4 |
Implementation
by way of Offer, Antitrust Termination Fee and Announcements |
| 4.1 |
The
parties agree that, conditional on the Scheme Document incorporating both (i) a unanimous
and unqualified recommendation of the Directors to shareholders in the Company to vote in
favour of the Scheme and the General Meeting Resolutions and (ii) a statement that the
Directors’ recommendation of the Illinois Tool Works, Inc. offer has been withdrawn,
then Clauses 3.8, 9 and 21.1 of the Agreement shall be reinstated as if the Directors had
not withdrawn their recommendation of the Original Offer and shall continue to apply in
accordance with their terms, with the references at Clauses 3.8, 9.2.2 and 21.1 of the
Agreement to the Directors withdrawing or modifying or qualifying their recommendation to
shareholders in the Company to vote in favour of the Scheme and the General Meeting
Resolutions being construed in relation to the Increased Offer. |
| |
Paragraph
6 of Schedule 3 of the Agreement shall be replaced by the following: |
| |
“6.1 |
Awards
under the Enodis Performance Share Plan 2007 (the “PSP”) will vest,
subject to the satisfaction of the applicable performance conditions, on the Effective
Date. In accordance with the rules of the PSP, the number of Shares in the Company
subject to a vested award will be pro-rated to reflect that part of the performance
period (as defined in the rules of the PSP) that has expired at the Effective Date. |
| |
6.2 |
To
the extent that PSP awards do not vest, Manitowoc will provide a replacement incentive to
each employee who had an award under the PSP (“PSP Employee”) to take
effect as of the Effective Date. Under this replacement incentive, Manitowoc will procure
that an amount is paid in cash for each unvested share subject to an award of 294 xxxxx
(the “Cash Payment”). The Cash Payment will be payable to each PSP
Employee no later than 14 days after the Effective Date provided that the PSP Employee
has continued to be in employment with the Company or one of its subsidiaries up to the
Effective Date.” |
| |
Schedule
2 of the Agreement shall be replaced by the Schedule to this Amendment Agreement. |
| 7.1 |
The
Company undertakes that (i) it shall not, on or after the date hereof enter into any
inducement fee or break fee in relation to a Third Party Transaction or similar
arrangement with any third party and (ii) it shall not increase the amount of the
inducement fee that it has agreed to pay to Illinois Tool Works, Inc. |
| 7.2 |
For
the avoidance of doubt, as the Directors withdrew their recommendation of the Original
Offer on 8 May 2008, Clause 8.1.1 has been satisfied and therefore, if the Acquisition
lapses or is withdrawn, the Inducement Fee will be paid by the Company to Manitowoc under
Clause 8.2 no later than five Business Days after the date on which the Acquisition
lapses or is withdrawn. |
| 8.1 |
The
parties agree that Clause 10 of the Agreement shall be amended by the inclusion of
the following Clause: |
| |
“10.1.7
notice in writing from Manitowoc to the Company, if (a) the Directors have withdrawn or
adversely modified or qualified either their publicly stated intention to recommend the
Increased Offer or, if made, their recommendation to shareholders in the Company to vote
in favour of the Scheme and the General Meeting Resolutions (or if applicable to accept
an Offer) and (b) Manitowoc has publicly announced the withdrawal of the Acquisition,
with the consent of the Panel.” |
| 9 |
Amendments
Not to Affect Validity |
| |
The
provisions of the Agreement shall, except as expressly amended by this Amendment
Agreement, continue in full force and effect in accordance with their terms. |
| 10 |
Application
of certain clauses of the Agreement |
| |
Clauses
11 to 13, 16 to 18 and 20 to 24 of the Agreement shall apply to this Amendment Agreement,
mutatis mutandis. |
| 11.1 |
This
Amendment Agreement, together with the Confidentiality Agreement entered into between the
parties and dated 26 March 2008 and the Agreement, constitutes the whole and only
Agreement between the parties relating to the Acquisition and supersede any previous
agreement whether written or oral between the parties in relation to the Acquisition
and/or the Increased Offer. |
| 11.2 |
Each
party acknowledges that in entering into this Amendment Agreement it is not relying upon
any pre-contractual statement that is not set out in this Amendment Agreement. |
| 11.3 |
No
party shall have any right of action against any other party to this Amendment Agreement
arising out of or in connection with any pre-contractual statement except to the extent
that it is repeated in this Amendment Agreement. Nothing in this Clause 11 shall limit
the liability of any party in respect of any fraudulent misrepresentation or
misstatement. |
| 11.4 |
For
the purposes of this Clause 11, “pre-contractual statement” means any
draft, agreement, undertaking, representation, warranty, promise, assurance or
arrangement of any nature whatsoever, whether or not in writing, relating to the subject
matter of this Amendment Agreement made or given by any person at any time prior to the
date of this Amendment Agreement. |
| 11.5 |
This
Amendment Agreement may only be varied in writing signed by each of the parties. |
In witness whereof this
Amendment Agreement has been executed as a deed on the date stated at the beginning.
EXECUTED as a DEED by
ENODIS PLC
acting by:
| Name: Xxxxx X. XxXxxxxxx |
/s/ Xxxxx X. XxXxxxxxx |
| Director |
Name: Xxxxx Xxxxxx |
/s/ Xxxxx Xxxxxx |
| Director |
EXECUTED as a DEED by
THE
MANITOWOC COMPANY, INC.
acting by:
| Xxxxxx X. Xxxxx |
/s/ Xxxxxxx X. Xxxxx |
| Senior Vice President |
| General Counsel & Secretary |
