«Letter of Transmittal to Exchange Each Registered Share of Foster Wheeler AG for $16.00 in Cash and 0.8998 new ordinary shares or American depositary ...»
Letter of Transmittal to Exchange
Each Registered Share
Foster Wheeler AG
$16.00 in Cash and 0.8998 new ordinary shares or American depositary shares,
each representing one (1) ordinary share
(which tendering Foster Wheeler shareholders may elect to receive as $32.00 in cash or
1.7996 new ordinary shares or American depositary shares, each representing one (1) ordinary share of AMEC plc)
Subject in Each Case to Proration
Pursuant to the Prospectus, dated 7 October 2014 The undersigned represent(s) that I (we) have full authority to surrender without restriction the Foster Wheeler shares listed below. You are hereby authorised and instructed to deliver to the address indicated below (unless otherwise instructed in the boxes in the following pages), a check representing a cash payment or a certificate representing AMEC shares or AMEC ADSs for registered shares, as applicable, par value CHF3.00 per share, of Foster Wheeler (as defined below) tendered pursuant to the terms and subject to the conditions set forth in the Prospectus (as defined below) and in this Letter of Transmittal, which are referred to together, as each may be amended and/or supplemented from time to time, as the Offer.
THE OFFER, AND YOUR RIGHT TO WITHDRAW FOSTER WHEELER SHARES YOU TENDER IN THE OFFER, WILL
THERE WILL BE NO SUBSEQUENT OFFERING PERIOD.The method of delivery of this Letter of Transmittal and all other required documents is at the option and risk of the owner thereof. See Instruction 2.
Mail or deliver this Letter of Transmittal to:
If delivering by mail: If delivering by hand or courier:
American Stock Transfer & Trust Company, LLC American Stock Transfer & Trust Company, LLC Operations Center Operations Center
Total Shares Surrendered * For registered Foster Wheeler shareholders who hold the Foster Wheeler shares described below on the books and records of Foster Wheeler, the name of the Registered Holder (as defined below) must be exactly as it appears on the books and records of Foster Wheeler.
** Need not be completed if transfer is to be made with respect to Foster Wheeler shares held in book-entry form in DTC (as defined below).
*** Unless otherwise indicated, it will be assumed that all Foster Wheeler shares are being tendered hereby.
The Instructions contained within this Letter of Transmittal should be read carefully before this Letter of Transmittal is completed.
This Letter of Transmittal should be used only for tendering Foster Wheeler shares (as defined below). Do not use this Letter of Transmittal to tender Foster Wheeler securities other than Foster Wheeler shares.
Delivery of this Letter of Transmittal to an address other than as set forth above will not constitute a valid delivery to the exchange agent. You must sign this Letter of Transmittal where indicated below and complete the Substitute W-9 Form provided below or the appropriate Form W-8 as required.
IF YOU WOULD LIKE ADDITIONAL COPIES OF THIS LETTER OF TRANSMITTAL OR ANY
OF THE OTHER DOCUMENTS RELATED TO THE OFFER, YOU SHOULD CONTACT THEINFORMATION AGENT, GEORGESON INC. AT +1 (888) 206 5896.
You have received this Letter of Transmittal in connection with the offer by AMEC plc (‘‘AMEC’’), a company organised under the laws of England and Wales, through AMEC International Investments BV, a company organised under the laws of the Netherlands and a direct wholly-owned subsidiary of AMEC, to acquire all of the issued and to be issued registered shares, par value CHF3.00 per share (‘‘Foster Wheeler shares’’), of Foster Wheeler AG (‘‘Foster Wheeler’’) in exchange for cash or AMEC securities (as defined below), upon the terms and subject to the conditions set forth in the prospectus and forming part of the registration statement on Form F-4, file number 333-199116, as amended and/or supplemented (the ‘‘Prospectus’’), and this letter of transmittal for use in accepting the offer in respect of Foster Wheeler shares (the ‘‘Letter of Transmittal’’, which, together with the Prospectus and any amendments and/or supplements thereto, collectively constitute the ‘‘Offer’’).
AMEC, through AMEC International Investments BV, is offering to exchange for each Foster Wheeler share validly tendered and not properly withdrawn the right to receive a combination of (i) $16.00 in cash and (ii) 0.8998 AMEC securities (in the form of ordinary shares of AMEC, nominal value £0.50 per share (‘‘AMEC shares’’), or AMEC American depositary shares each representing one (1) AMEC share (‘‘AMEC ADSs’’ and together with the AMEC shares, ‘‘AMEC securities’’)). The Offer will allow for a ‘‘mix and match’’ election, whereby tendering Foster Wheeler shareholders may
elect to receive, for each Foster Wheeler share tendered, either:
(i) $32.00 in cash, without interest (the ‘‘Cash Consideration’’); or (ii) 1.7996 AMEC securities (the ‘‘Share Consideration’’) (in the form of AMEC shares or AMEC ADSs, at the election of the tendering Foster Wheeler shareholders), subject in each case to proration as described in the section of the Prospectus entitled ‘‘The Offer— Terms of the Offer—Mix and Match Election and Proration’’.
The aggregate amount of cash to be paid and the aggregate number of AMEC securities to be issued pursuant to the Offer, respectively, are fixed. Depending on the elections made by other tendering Foster Wheeler shareholders, a tendering Foster Wheeler shareholder may receive a proportion of cash and/or AMEC securities that is different from what such tendering Foster Wheeler shareholder elected. At the closing of the Offer, the amount of each type of consideration available to tendering Foster Wheeler shareholders will be proportionate to the level of acceptance by Foster Wheeler shareholders. If the available amounts of each type of consideration are sufficient to satisfy the elections of the tendering Foster Wheeler shareholders at the closing of the Offer, such shareholders will receive the type of consideration elected for each share tendered. If the elections result in an oversubscription of the pool of cash or AMEC securities available to be paid or issued pursuant to the Offer, certain proration procedures (as agreed by the parties in the implementation agreement, dated 13 February 2014, and amended by the letter agreement dated 28 March 2014, the deed of amendment dated 28 May 2014 and the deed of amendment dated 2 October 2014, between AMEC and Foster Wheeler (referred to together as the ‘‘Implementation Agreement’’)) for allocating cash and AMEC securities among tendering Foster Wheeler shareholders will be followed by the exchange agent. Tendering Foster Wheeler shareholders who make no election will receive the type of consideration that is not oversubscribed, which will depend on the valid elections of tendering Foster Wheeler shareholders.
The exchange ratio in relation to the securities portion of the Offer consideration is fixed and will not vary, regardless of any fluctuations in the market price of either AMEC securities or Foster Wheeler shares. Therefore, the dollar value of the AMEC securities that holders of Foster Wheeler shares will receive upon completion of the Offer will depend on the market value of AMEC shares and the exchange rate of pounds sterling to US dollars at the time of completion.
The Offer does not extend to Foster Wheeler options, Foster Wheeler restricted share units (‘‘RSUs’’) or Foster Wheeler performance-related restricted share units (‘‘PRSUs’’). See ‘‘Interests of Foster Wheeler, AMEC International Investments BV and AMEC and Their Directors and Officers— Treatment of Foster Wheeler Options, Foster Wheeler RSUs and Foster Wheeler PRSUs under the Implementation Agreement’’ in the Prospectus.
The completion of the Offer is subject to certain conditions, including that at least 80 per cent. of the Foster Wheeler shares are tendered in the Offer, subject to the right by AMEC to waive the minimum tender condition down to 662⁄3 per cent. A detailed description of the terms and conditions of the Offer appears under ‘‘The Offer—Terms of the Offer’’ and ‘‘The Offer—Conditions to the Offer’’ in the Prospectus.
The Offer and withdrawal rights will expire at 11:59 p.m. New York City time on 4 November 2014 (4:59 a.m. London time on 5 November 2014; 5:59 a.m. Zug time on 5 November 2014) (the ‘‘Expiration Time’’), or on such subsequent date or time to which the Offer may be extended if AMEC causes AMEC International Investments BV to extend the Offer as further described in the Prospectus.
There will be no subsequent offering period.
If, following completion of the Offer, AMEC has, directly or indirectly, acquired or controls at least 90 per cent. of the issued Foster Wheeler voting rights, no actions or proceedings are pending with respect to the exercisability of those voting rights and no other legal impediment to a squeeze-out merger under Swiss law exists, it will initiate a squeeze-out merger pursuant to article 8, paragraph 2 and article 18, paragraph 5 of the Swiss Merger Act (‘‘Squeeze-Out Merger’’), whereby Foster Wheeler will be merged with and into a wholly-owned, direct or indirect, subsidiary of AMEC International Investments BV organised under Swiss law (with such Swiss subsidiary of AMEC International Investments BV being the surviving entity). Remaining Foster Wheeler shareholders who do not tender their Foster Wheeler shares in the Offer will, as part of such Squeeze-Out Merger, be compensated (in cash or otherwise) as required under article 8, paragraph 2 of the Swiss Merger Act. However, in no event will they receive any shares of the surviving entity. Pursuant to the Swiss Merger Act, the amount or value of such compensation must be adequate, but such amount or value may be different in form and/or value from the consideration that Foster Wheeler shareholders receive in the Offer.
AMEC, through AMEC International Investments BV, reserves the right to waive the 80 per cent.
minimum tender condition down to 662⁄3 per cent. Therefore, Foster Wheeler shareholders will not know at the time they make their decision to tender their shares the exact percentage of the Foster Wheeler shares AMEC, directly or indirectly, will own after the completion of the Offer, but they will know that, if the Offer closes, such percentage will be at least 662⁄3 per cent. of the Foster Wheeler shares.
If the minimum tender condition is satisfied but less than 90 per cent. of the issued Foster Wheeler voting rights are controlled, directly or indirectly, by AMEC after completion of the Offer, it may not be able to unilaterally initiate a Squeeze-Out Merger immediately following completion of the Offer. However, it may use all legally permitted methods under Swiss law to obtain the remaining outstanding Foster Wheeler voting rights after the Offer, including by engaging in (i) one or more corporate restructuring transactions, such as a contribution of assets, businesses or shareholdings into Foster Wheeler in connection with a capital increase of Foster Wheeler by contribution in kind, whereby the pre-emptive rights of the remaining shareholders would be withdrawn and new Foster Wheeler shares would be issued to AMEC (or its contributing affiliate), or (ii) purchases of Foster Wheeler shares from minority Foster Wheeler shareholders. For any such transaction, the form and amount of the consideration to be paid could be different from the consideration offered pursuant to the Offer. US shareholders would participate in these transactions on the same terms as non-US shareholders, including Swiss shareholders. It is possible that some of these transactions, such as the Squeeze-Out Merger, a transfer of assets or a statutory merger or demerger, may be considered a ‘‘going private’’ transaction within the meaning of Rule 13e-3 under the Exchange Act, unless an exemption applies. If an exemption does not apply, such transaction would be subject to US federal securities laws (including Rule 13e-3) and AMEC would be required to file a Schedule 13E-3 with the SEC that would describe, among other things, the reasons for the ‘‘going private’’ transaction, the relationship of the parties involved, the source(s) of financing, the process used to determine the valuation or price paid to minority shareholders and detailed disclosures as to the fairness of any such transaction to minority shareholders. Under the General Corporate Law of the State of Delaware (‘‘DGCL’’), upon the acquisition and control of a majority of issued Foster Wheeler shares, if Foster Wheeler were a Delaware-incorporated company, AMEC would be permitted to effect a second step merger, enabling it to acquire the remaining Foster Wheeler shares not tendered in the Offer.
However, the DGCL does not apply to Foster Wheeler because it is a Swiss-incorporated company, rather than a Delaware-incorporated company.
AMEC has not yet determined which method or methods it would use to acquire the remaining outstanding Foster Wheeler shares if, after completion of the Offer, it has not acquired or does not control 90 per cent. of the issued Foster Wheeler voting rights. However, in making such a determination, AMEC will consider a number of factors, including the number of Foster Wheeler shares tendered into the Offer, the number of remaining minority shareholders (including the means legally available in a particular jurisdiction to enable AMEC to acquire all of the outstanding Foster Wheeler shares in that jurisdiction), additional due diligence in respect of Foster Wheeler and any applicable law.