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Exhibit 2.1
DATED 28th March, 2001
SPHERION (EUROPE) INC.
▇▇▇▇▇▇▇ PAGE INTERNATIONAL PLC
SPHERION CORPORATION
CREDIT SUISSE FIRST BOSTON
(EUROPE) LIMITED
THE PERSONS
NAMED IN SCHEDULE 4
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UNDERWRITING AGREEMENT
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▇▇▇▇▇ & OVERY
London
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CONTENTS
Clause Page
1. Interpretation......................................................................................2
2. Admission...........................................................................................2
3. Sale of Shares......................................................................................3
4. Conditions..........................................................................................5
5. Appointment of CSFB Equities as Agent...............................................................6
6. Underwriting........................................................................................6
7. Proceeds of the Global Offer........................................................................7
8. Settlement and Registration.........................................................................7
9. Announcements.......................................................................................8
10. Restrictions........................................................................................9
11. Commissions........................................................................................11
12. Expenses...........................................................................................11
13. Warranties.........................................................................................12
14. Undertakings of the Underwriters...................................................................15
15. Limits on Liability................................................................................16
16. Termination........................................................................................17
17. General Indemnity..................................................................................19
18. Stabilisation......................................................................................21
19. Guarantee..........................................................................................24
20. VAT................................................................................................26
21. Compliance.........................................................................................27
22. Notices............................................................................................27
23. Amendments.........................................................................................28
24. Supplemental.......................................................................................29
Schedules
1. The Seller.........................................................................................31
2. Interpretation.....................................................................................32
3. Underwriting Allocations...........................................................................38
4. Representations and Warranties to be given by the Seller and the Company...........................39
Signatories.................................................................................................49
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THIS AGREEMENT is made on 28 March, 2001 BETWEEN:
(1) SPHERION (EUROPE) INC. a Delaware limited liability corporation whose
registered office is at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ (the "SELLER");
(2) ▇▇▇▇▇▇▇ PAGE INTERNATIONAL PLC (registered number 3310225) whose
registered office is at ▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (▇▇▇
"COMPANY");
(3) SPHERION CORPORATION a Delaware limited liability corporation whose
registered office is at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ (the "GUARANTOR");
(4) CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED (registered number
00891554) whose registered office is at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the "SPONSOR"); and
(5) THE PERSONS whose names are set out in column (1) of Schedule 3 (the
"UNDERWRITERS" and each an "Underwriter").
WHEREAS:
(A) Application has been made to the UK Listing Authority to admit the
Shares to the Official List and to the London Stock Exchange to admit
the Shares to trading on its market for listed securities. The Sponsor
has been appointed to act as sponsor in connection with the application
for Listing and as nominated representative in connection with the
application for Admission to Trading in accordance with a sponsor's
agreement dated 5th March, 2001 (the "SPONSOR'S AGREEMENT").
(B) The Seller proposes to sell the Sale Shares pursuant to the
arrangements described in the Price Range Prospectus and this
agreement.
(C) The Company has appointed the Sponsor as sponsor, Credit Suisse First
Boston Equities Limited as joint-lead manager, sole global co-ordinator
and sole bookrunner, ▇▇▇▇▇▇▇ ▇▇▇▇▇ International Limited as joint-lead
manager, each of Deutsche Bank AG and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ as
co-lead managers and each of HSBC and West LB Panmure Limited as
co-managers, the Broker as broker to the Priority Offer, the Retail
Offer and part of the Employee Offer and the Registrars as registrars
and receiving agents in respect of the Global Offer.
(D) The Underwriters have sought from prospective institutional and
professional investors in various jurisdictions non-binding indications
of interest in purchasing Institutional Offer Shares pursuant to the
institutional offer as described in the Price Range Prospectus (the
"INSTITUTIONAL OFFER"). Insofar as sales are made in the United States
or to US persons in connection with the Global Offer, they are made
only to persons the Underwriters reasonably believe are Qualified
Institutional Buyers in transactions exempt from the registration
requirement of the Securities Act.
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(E) The Seller has offered to, and received application forms from certain
eligible employees of the Group (the "EMPLOYEES") to purchase Sale
Shares pursuant to the employee offer described in the Price Range
Prospectus (the "EMPLOYEE OFFER").
(F) The Seller has arranged for certain friends of the Group (the
"FRIENDS") to purchase Sale Shares through arrangements with the Broker
described in the Price Range Prospectus (the "PRIORITY OFFER").
(G) The Company has arranged, through CSFB Equities and the Broker for
members of the general public who are over the age of 18 and who are
resident in the UK, the Channel Islands or the Isle of Man to have the
opportunity to participate in an offer to purchase Sale Shares as
described in the Price Range Prospectus (the "RETAIL OFFER"). The
Company has (through the Broker) received application forms from such
members of the public for such Sale Shares under the Retail Offer.
(H) Allocations under the Global Offer have been determined at the
discretion of CSFB Equities (following consultation with the Seller).
(I) Each Underwriter has agreed to underwrite its allocation under the
Global Offer as set out in Schedule 3.
(J) The Price Range Prospectus, Priority Letter, Employee Letter and
Application Forms were published and distributed on 5th March, 2001 and
the Sponsor has received the documents listed in Part A of Schedule 2
of the Sponsor's Agreement and delivered them to the UK Listing
Authority and/or the London Stock Exchange (where appropriate).
(K) The Guarantor has agreed to guarantee the obligations of the Seller
under this agreement.
(L) It is the intention of the parties that this document should be
executed as a deed.
IT IS AGREED as follows:
1. INTERPRETATION
(1) The provisions of Schedule 2 apply in the interpretation of this
agreement.
(2) References in this agreement to any document as being in the "AGREED
FORM" and to any document are references to that document:
(a) in the form initialled for the purposes of identification by a
Director and a director of the Sponsor; or
(b) in that form as amended under clause 24.
2. ADMISSION
(1) The Company:
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(a) confirms that applications have been made for Admission and
that the Sponsor has been appointed by it to act as sponsor
and as nominated representative in connection with such
applications in accordance with the terms of the Sponsor's
Agreement;
(b) confirms that application has been made to CRESTCo Limited to
admit the Shares as participating securities within CREST; and
(c) shall take all reasonable steps within its power to ensure
that Admission becomes effective and that the Shares are
admitted as participating securities within CREST no later
than 8.00 a.m. on 2nd April, 2001 (or such later time and date
as the Company, the Seller and the Sponsor (on behalf of the
Underwriters) may agree).
(2) The Seller and the Company shall supply all such information, give all
such undertakings, execute all such deeds and documents and (in the
case of the Seller) pay all such fees as may be required by the UK
Listing Authority and the London Stock Exchange (as appropriate) in
connection with the applications for Admission.
(3) The Seller and the Company shall supply all such information, give all
such undertakings, pay all such fees and execute all such deeds and
documents as may be required in connection with the admission of the
Shares as participating securities within CREST.
3. SALE OF SHARES
(1) The Seller undertakes and represents to the Company, the Sponsor and to
each Underwriter that the execution of this agreement by it has been
duly authorised by it and this agreement constitutes its legal, valid
and binding obligations, enforceable in accordance with its terms and
that all corporate approvals and authorisations required by it for the
execution of this agreement and the performance of its terms have been
obtained, are unconditional and are in full force and effect.
(2) The Seller covenants with the Company, the Sponsor and each Underwriter
that, at the date hereof and at the time Listing becomes effective:
(a) it has the right to sell and transfer the full legal and
beneficial interest in the Offer Shares held by it, on the
basis and terms, and subject to the conditions, of the Offer
Documents;
(b) the Offer Shares held by it are fully paid;
(c) the information in Schedule 1 columns (1) to (4) relating to
the Seller is true and accurate; and
(d) to the extent that any statements or omissions made in the
Offer Documents (or any amendments or supplements thereto) are
made in reliance upon and in conformity with information
furnished to the Company and/or the Sponsor and/or CSFB
Equities by the Seller expressly for use therein, such Offer
Documents (or any amendments or supplements thereto), as of
their date and as of the date hereof, did not and will not
contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the
statements therein, in light of the circumstances under which
they were made, not misleading.
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(3) The Seller undertakes to the Company, the Sponsor and each Underwriter
to sell the Sale Shares to such Friends, Employees, members of the
public, Placees and Underwriters as are (following consultation with
the Seller) allocated to them pursuant to the Global Offer and free
from all equities, liens, charges and encumbrances of any kind and with
all rights attaching to those shares.
(4) Immediately following the execution of this agreement the Seller shall
deliver to the Sponsor:
(a) the Seller's Power of Attorney duly executed by it; and
(b) a CREST transfer form (in favour of the CSFB Nominee (Account
Prinaset)) undated and duly executed by it and a share
certificate in the name of the Seller (or its nominee(s)) in
respect of the Sale Shares (with the exception of the Sale
Shares allocated to Employees in the Non-UK Employee Offer (as
defined in the Prospectus) and the Sale Shares elected to be
received in certificated form by the Placees, Underwriters or
Friends). The Sponsor shall procure that the CSFB Nominee
holds such CREST transfer form to the order of the Seller
until Admission becomes effective. The Seller shall confirm to
the Registrar that such Sale Shares shall be held to the order
of the CSFB Nominee (acting as agent of the Seller) upon
Admission becoming effective. The Seller agrees that
immediately following Admission becoming effective such Sale
Shares shall be transferred in CREST to the CSFB Nominee
(Account Prinaset) (acting as agent of the Seller) and the
Company shall procure that the CSFB Nominee (Account Prinaset)
is registered as the holder of such Sale Shares; and
(c) a duly executed block stock transfer form(s) in favour of
Employees to whom Sale Shares have been allocated in the
Non-UK Employee Offer and those Underwriters, Placees and
Friends as are to receive Sale Shares in certified form. The
Seller shall procure that details of those persons are
notified to the Seller by the Registrars and the Broker.
(5) If the Seller fails to comply with subclause (4) any Director or CSFB
Equities may complete and execute on its behalf in favour of the CSFB
Nominee (or the relevant Employees, Placees, Underwriters and Friends,
as the case may be) one or more CREST (or block) transfer forms in
respect of the relevant Sale Shares and deliver those transfer form(s)
to the CSFB Nominee (or the Registrars as the case may be).
(6) Without prejudice to the other provisions of this clause, the Seller
shall execute any further documents and do anything which is necessary
or, in the reasonable opinion of the Company or CSFB Equities,
desirable to ensure that the Sale Shares are held in the CREST account
of the CSFB Nominee (Account Prinaset) immediately after Admission
becomes effective, and otherwise for the Sale Shares to vest in the
relevant Friends, applicants under the Retail Offer, Employees, Placees
and Underwriters.
(7) The Seller unconditionally and irrevocably grants to CSFB Equities (on
behalf of the Underwriters) an option to require the Seller to sell up
to 45,978,250 additional Shares at the Offer Price as directed by CSFB
Equities, such option to be exercisable in part or in whole on one or
more occasions upon notice in writing to the Seller by CSFB Equities as
provided in clause 18 and given no later than 12 noon (London time) on
the Stabilisation Period End Date.
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CSFB Equities shall pay to the Seller (on the same date as and against
delivery of such additional Shares) the aggregate Offer Price payable
in respect of the additional Shares in respect of which the option is
exercised less a commission equal to 3.5 per cent. of the Offer Price
multiplied by the number of such additional Shares. In the event that
the Guarantor provides written notification to CSFB Equities of its
determination (which may be made or withheld in its sole and absolute
discretion) to pay an additional commission of up to 0.5% of the Offer
Price multiplied by such number of additional Shares, such amount may
also be deducted by CSFB Equities from the aggregate Offer Price as
aforesaid.
(8) The Company agrees with each Underwriter promptly from time to time to
take such action as it may reasonably request to qualify the Shares for
offering and sale under the securities laws of such jurisdictions as it
may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of the Shares,
provided that in connection therewith the Company shall not be required
to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction.
4. CONDITIONS
(1) Clause 5 comes into effect when the Sponsor is satisfied that the Final
Prospectus has been delivered for registration and published in
accordance with clause 4(4) of the Sponsor's Agreement. If the Sponsor
is not satisfied as to those matters on or before the Settlement Date
those clauses never come into effect.
(2) Clause 6 shall come into effect when:
(a) each of the documents listed in Part A and Part B of Schedule
2 of the Sponsor's Agreement has been delivered to the
Sponsor, together with a SAS-72 letter from Deloitte & Touche
and legal opinions from counsel to each of the Company, the
Seller and Guarantor and the Underwriters in each case in
forms acceptable to the Underwriters, and as annexed hereto;
and
(b) the UK Listing Authority has agreed to admit the Shares to the
Official List and conditional dealings in the Shares have
commenced on or before 2nd April, 2001 (or such later time and
date as the Company and CSFB Equities (on behalf of the
Underwriters) may agree).
(3) If:
(a) either of the conditions set out in subclauses (1) and (2) is
not fulfilled on or before the date specified in the relevant
subclause; or
(b) any of the Company, the Seller or the Guarantor has not
complied with all its respective obligations under this
agreement which fall to be performed or satisfied on or prior
to the Commencement of Dealings; or
(c) any event has occurred which would make any of the
representations and warranties contained in clauses 3(1), (2)
or (3) or 13 and Schedule 4 given by the Company or the Seller
(as appropriate), or those contained in clause 19 given by the
Guarantor, untrue or incorrect in the context of the Global
Offer or the applications for Listing
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and/or Admission to Trading if they had been repeated at any
time up to and including the time when the final condition
(other than this condition) has been satisfied; or
(d) Admission has not become effective or the Shares have not been
admitted as participating securities within CREST by 8.00 a.m.
on 2nd April, 2001 (or such later time and date as the Company
and the Sponsor (on behalf of the Underwriters) have agreed),
clause 16(1) shall apply as if non-fulfilment of the relevant condition
(or other event set out in this clause 4(3)) had been the service of a
termination notice and, save as specified in clause 16(4), no party
shall have any further rights or obligations under this agreement.
5. APPOINTMENT OF CSFB EQUITIES AS AGENT
(1) The Seller hereby confirms the appointment of CSFB Equities (on behalf
of the Underwriters) as its agent for the purpose of carrying out the
Global Offer and arranging purchasers of Sale Shares on its behalf on
the terms and subject to the conditions of the Global Offer as set out
in the Offer Documents.
(2) CSFB Equities hereby confirms its acceptance of the appointment
referred to in subclause (1).
(3) The Seller confirms that the appointment under subclause (1) confers on
CSFB Equities (on behalf of the Underwriters) all powers, authorities
and discretions on behalf of the Seller which are necessary, or
reasonably incidental to, the carrying out of the Global Offer and
arranging purchasers of Sale Shares and shall ratify and confirm
everything which CSFB Equities property and lawfully does in carrying
out or exercising such appointment, powers, authorities and
discretions.
(4) The Company and the Seller hereby irrevocably authorise CSFB Equities
to give to the Registrars and/or CRESTCo Limited and/or the
Underwriters any instructions consistent with this agreement and the
Offer Documents which CSFB Equities considers necessary for or
incidental to the Global Offer or for otherwise giving effect to this
agreement.
6. UNDERWRITING
(1) In respect of the Institutional Offer, each Underwriter severally and
not jointly undertakes to procure (as agent for the Seller) purchasers
for, and failing which (as principal) to purchase, the number of
Institutional Offer Shares set out against its name in Schedule 3 at
the Offer Price and in either case to make payment for value on the
Settlement Date to CSFB Equities (by no later than 3.30 p.m.).
(2) To the extent that the Seller fails to procure purchasers for the Sale
Shares the subject of the Priority Offer the Retail Offer and the
Employee Offer, each Underwriter severally and not jointly agrees
either to procure (as agent for the Seller) purchasers for such Sale
Shares under the Institutional Offer or (as principal) to purchase its
pro rata share (calculated by reference to the numbers set out in
Schedule 3) of such Sale Shares (which shall be deemed to be added to
the Institutional Offer Shares set out against its name in Schedule 3)
in either case in accordance with sub-clause (1) above.
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(3) Each Underwriter may elect to receive any or all of the Shares to be
taken by it pursuant to this clause in uncertificated form, in which
event it shall notify CSFB Equities of the CREST account to which such
Shares as are to be taken in uncertificated form are to be credited in
accordance with clause 8(2) not later than 8.30 a.m. on the Settlement
Date.
7. PROCEEDS OF THE GLOBAL OFFER
(1) Subject to clause 7(3) below, on the Settlement Date, CSFB Equities
shall pay (or give instructions to the Registrars to pay) to the Seller
an amount equal to the number of Sale Shares multiplied by the Offer
Price (less the amounts payable by the Seller under clauses 11 and 12)
to its bank account, details of which have been notified to CSFB
Equities.
(2) CSFB Equities shall pay to the Seller the price for the Shares
purchased pursuant to the option in clause 3(7) (less any amounts
payable by the Seller under clauses 3(7), 11 and 12) to the Seller's
bank account referred to in subclause (1) above in each case upon each
exercise of the option.
(3) The Seller acknowledges that CSFB Equities has paid (or will on or
before 30 March, 2001 pay) into the account of CSFB Equities with Bank
of America and subject to the terms of the relevant escrow arrangements
therefor the sum of (pound)285,000,000 (the "DEPOSIT") in part
satisfaction of its obligation to pay the price for the Sale Shares
under sub-clause (1) above. Accordingly, the obligation of CSFB
Equities under clause 7(1) to pay the price for the Sale Shares on the
Settlement Date shall relate only to the balance of the price due after
deduction of the Deposit.
(4) The Seller acknowledges and agrees that following the payment referred
to in clause 7(1) above CSFB Equities may exercise all and any rights
the Seller may have in connection with any sale of Sale Shares by it,
including without limitation any rights against any person who for any
reason has failed to pay for any Sale Shares allocated to him.
8. SETTLEMENT AND REGISTRATION
(1) The Seller (insofar as it is able) and CSFB Equities shall procure that
upon Admission becoming effective the CSFB Nominee will hold the Sale
Shares the subject of the Institutional Offer, Priority Offer and
Retail Offer as nominee for the Placees, Underwriters, applicants under
the Retail Offer or Friends of such Sale Shares in the proportions and
as otherwise determined by CSFB Equities in accordance with this
agreement.
(2) CSFB Equities shall procure the crediting of such of the Sale Shares as
are to be received by the Placees, the Friends, applicants under the
Retail Offer or the Underwriters in uncertificated form to the CREST
accounts of such recipients as notified by them or in accordance with
clause 6 (subject to receipt by CSFB Equities of payment for such
Shares in accordance with the terms and conditions of the Global Offer
contained in the Offer Documents or clause 6 as appropriate).
(3) The Company shall procure:
(a) the re-certification by the Registrars of such number of the
Sale Shares as are to be held in certificated form by
applicants under the Retail Offer and by Employees (and
Placees, Underwriters and Friends as the case may be) and the
despatch of share
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certificates in respect of such Shares to the persons (or
nominees of such persons) by whom such Shares have been
purchased before the close of business on the Settlement Date
or, in the case of certificates to be despatched to Employees,
the date which is three months after Admission;
(b) that the persons entitled to be registered as the holders of
the Shares are registered promptly (in accordance with any
reasonable directions which CSFB Equities may give).
(4) The obligations of the Company and CSFB Equities pursuant to subclauses
(2) and (3) shall be subject:
(a) to delivery to CSFB Equities of confirmation of registration
details by Placees, Underwriters, Employees or the Friends or
relevant members of the public in respect of such of the Sale
Shares as are taken or purchased by them; and
(b) to the CREST Regulations and the CREST Rules.
9. ANNOUNCEMENTS
(1) Until the Announcement Date and except for the Press Announcements, no
party to this agreement except the Sponsor shall, and the Guarantor,
the Seller (to the extent they are able) and the Company shall procure
that no Group company shall:
(a) (in response to enquiries or otherwise) make any public
statement or publish any document which relates to:
(i) the Global Offer; or
(ii) any Group company unless it is a normal trade
announcement, trade advertisement or document; or
(b) take any steps which, in the reasonable opinion of the
Sponsor, would be inconsistent with any expression of policy
or intention in the Offer Documents,
except:
(x) as required by law or the UK Listing Authority, the London
Stock Exchange or other competent regulatory body and provided
that the relevant party shall consult the Sponsor where
reasonably practicable and take into account in good faith its
reasonable representations before making such a public
statement or publishing such a document or taking such a step
and shall if required by the Sponsor limit the extent of any
disclosure or step taken strictly to that required by law or
such regulatory body;
(y) with the prior written consent of the Sponsor, such consent
not to be unreasonably withheld or delayed; or
(z) (in respect of the period after the Stabilisation Period End
Date up to the Announcement Date only) where such statement or
document (or step) proposed to
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be published (or taken) is in the best interests of the
relevant party and based on reasonable commercial principles
and provided that the relevant party shall consult with the
Sponsor and take into account in good faith its reasonable
representations before publishing such statement or document
or taking such step.
(2) The Company:
(a) shall consult with the Sponsor and CSFB Equities in advance
concerning any public statement or document which any Group
company proposes to make or publish before the Announcement
Date and which relates to the Group's financial or trading
position or prospects, the dividend policy of the Company or
to any acquisition, disposal, reorganisation, take-over,
management development or any other matter (similar or not to
the foregoing) affecting any Group company; and
(b) shall forward to the Sponsor and CSFB Equities for their
comments (to which the Company shall have due regard and which
comments the Sponsor and CSFB Equities shall provide to the
Seller as soon as reasonably practicable) drafts or proofs of
any accounts or of any public statement or document which any
Group company proposes to make or publish before the
Announcement Date and which relates to any matter falling
within paragraph (a).
(3) The Seller:
(a) shall consult with the Sponsor and CSFB Equities in advance
concerning any public statement or document which the Seller
proposes to make or publish before the Stabilisation Period
End Date and which relates (in whole or part) to the Company
or any Group company; and
(b) shall forward to the Sponsor and CSFB Equities for their
comments (to which the Seller shall have due regard and which
comments the Sponsor and CSFB Equities shall provide to the
Seller as soon as reasonably practicable) drafts or proofs of
any accounts or of any public statement or document which the
Seller proposes to make or publish before the Stabilisation
Period End Date and which relates (in whole or part to the
Company or any Group company.
(4) In subclauses (1), (2) and (3), references to making a public statement
or publishing a document include authorising or permitting another
person to do so.
10. RESTRICTIONS
(1) The Company undertakes to the Sponsor and the Underwriters that it will
not:
(a) between the date of this agreement and the date falling 12
months after the date of Admission becoming effective, enter
into any agreement or arrangement or do or permit to be done
any other act or thing which, in any case, would give rise to
any obligation to make any announcement to the UK Listing
Authority in accordance with the Listing Rules or the
admission and disclosure standards published by the London
Stock Exchange other than as a consequence of the requirements
of Part VI of the Companies ▇▇▇ ▇▇▇▇ or Part X of the
Companies ▇▇▇ ▇▇▇▇ (provided not as a result of the actions of
any Director); and
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(b) between the date of this agreement and the date falling 12
months after the date of Admission becoming effective, enter
into any agreement or arrangement or do or permit to be done
any act or thing which may involve any increase in, or
obligation (whether contingent or otherwise) to issue, allot
or grant options over, shares in the capital of the Company
(other than a grant, in accordance with normal practice, or
the exercise of options under the Company's share option
schemes described in paragraph 4 of part IX of the Price Range
Prospectus) which would require the Company to issue listing
particulars under the Listing Rules; and
(c) be or become, at any time while any of the Shares are
"Restricted Securities" within the meaning of Rule 144(a)(3)
under the Securities Act, an open-end investment company, unit
investment trust, closed-end investment company or face-amount
certificate company that is required to be registered under
Section 8 of the US Investment Company Act of 1940, as
amended,
without, in any such case, the prior written consent of the Sponsor
and, in the case of paragraph (c) only, CSFB Equities, and in either
case such consent not to be unreasonably withheld.
(2) The Seller undertakes to the Sponsor and each of the Underwriters and
the Company not to offer, lend, sell or contract to sell, mortgage,
charge, assign, issue options in respect of, or otherwise dispose of,
directly or indirectly, or announce an offering or sale of, any Shares
retained by it or any other securities exchangeable for or convertible
into, or substantially similar to, Shares (or any interest therein or
in respect thereof) or enter into any transaction with the same
economic effect as, or agree to do, any of the foregoing for a period
of six months from publication of the Final Prospectus in accordance
with clause 4(4) of the Sponsor's Agreement (the "END DATE"), except
with the prior consent of the Sponsor and CSFB Equities such consent
not to be unreasonably withheld or delayed. The Seller further
undertakes that for a period of 18 months from the End Date it will not
do any of the foregoing without consulting with the Sponsor and CSFB
Equities in advance (and taking into account their reasonable
representations). Any such transactions within such period will then be
conducted through its brokers from time to time.
For the purposes of this clause 10(2), "SHARES" shall mean ordinary
shares in the issued share capital of the Company owned by the Seller
or any of its affiliates (or in respect of which the Seller or any of
its affiliates is interested) at the Settlement Date or owned at any
later time (including for the avoidance of doubt any other securities
so owned, exchangeable for or convertible into, or substantially
similar to, the Shares) or any rights arising from any such Shares or
attached to any such Shares at any time.
(3) The Seller shall take reasonable steps to ensure that none of its
connected persons or affiliates (as may be appropriate) will take any
of the actions referred to in subclause (2).
(4) The Seller undertakes to each of the Sponsor, the Underwriters and the
Company that it will not (and will (insofar as it is able) procure that
its connected persons or affiliates shall not) take, directly or
indirectly, any action which is designed to or which constitutes or
which might reasonably be expected to cause or result in stabilisation
or manipulation of the price of any security of the Company or
facilitate the sale or resale of the Shares.
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(5) The Seller and the Company acknowledge that any decision by the Sponsor
or CSFB Equities to withhold consent in any of the circumstances above
mentioned in this clause shall not form the basis of any claim against
the Sponsor or CSFB Equities for any damage, loss, cost or expense
alleged to have been caused by such decision, unless (other than
pursuant to subclause (1)(a) above) its consent is withheld
unreasonably.
(6) This clause 10 does not preclude the Seller, or a person affiliated or
connected with it, from (i) accepting any offer for shares in the
Company of a kind to which the City Code applies if it has become or
been declared unconditional in all respects or if it is recommended for
acceptance by the Company's directors, or (ii) making a disposal if
required by law or by any regulatory authority, or (iii) transferring
any Shares held by it to an affiliate or holding company of it, but
only for so long as such transferee remains an affiliate and provided
such transferee agrees to abide by the restrictions contained in
sub-clause (2) above (mutatis mutandis).
11. COMMISSIONS
(1) The selling commissions shall be borne by the Seller.
(2) The amount of selling commissions to be deducted from the proceeds of
the Global Offer by CSFB Equities on behalf of the Underwriters are a
sum equal to 3.5 per cent. of the Offer Price multiplied by the number
of Offer Shares sold pursuant to the Global Offer. In the event that
the Guarantor provides written notification to CSFB Equities of its
determination (which may be made or withheld in its sole and absolute
discretion) to pay the Underwriters an additional commission of up to
0.5% of the Offer Price multiplied by the number of Offer Shares sold
pursuant to the Global Offer, such amount may also be deducted from the
proceeds of the Global Offer by CSFB Equities on behalf of the
Underwriters.
(3) The amounts (and any applicable VAT properly chargeable thereon,
subject to production of a valid VAT invoice) payable to CSFB Equities
under this clause shall become due at the same time as the payments to
be made by CSFB Equities under clause 7.
12. EXPENSES
(1) All stamp duty and/or (if applicable) stamp duty reserve tax ("SDRT")
payable in connection with any transfer (directly or indirectly) of (or
agreement to transfer) the Sale Shares under the Global Offer (and the
Shares the subject of the option under clause 3(7)) by the Seller to
the CSFB Nominee, the Placees, the Underwriters, the Friends, the
Employees, relevant members of the public under the Retail Offer and/or
to the nominee(s) of any of them (or, in relation to the Shares the
subject of the option under clause 3(7), by the Seller to CSFB Equities
or the CSFB Nominee and/or by CSFB Equities or the CSFB Nominee to any
transferee) and in connection with any Stabilisation Transactions
pursuant to clause 18 shall be the sole liability of the Seller. If
applicable CSFB Equities shall be entitled to deduct such stamp duty
and/or SDRT from the payments to be made to the Seller under clause 7
and to pay such stamp duty on behalf of the Seller and to account for
such stamp duty reserve tax to the Inland Revenue under a valid
regulation 4 agreement on behalf of the Seller. Where CSFB Equities
acquires any shares as principal pursuant to clauses 3(7) and 18 of
this agreement it shall use all reasonable endeavours to procure that
it obtains an exemption from stamp duty and SDRT pursuant to sections
88A and 80A Finance ▇▇▇ ▇▇▇▇ or any other applicable exemption in
respect of such acquisition.
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(2) The Seller shall pay all other expenses connected with this agreement,
the Admission, the admission of the Shares as participating securities
within CREST, the Global Offer and any related arrangement, including,
but not limited to, the London Stock Exchange fee, the UK Listing
Authority fee, roadshows (including the fees of any investor relations
or roadshow advisers), and including, in particular, those for the
preparation, printing, publication, advertising and distribution of the
Offer Documents, registration and listing fees and expenses, the fees
of the Registrars, the Company's own legal fees, accounting fees and
all professional expenses (including the legal fees and reasonable
travel, accommodation, document production and courier costs of the
Underwriters) and any applicable Tax properly incurred thereon (but
excluding any Tax imposed on or calculated by reference to the net
income received or receivable as a result of, or by reference to, sums
payable or received pursuant to this agreement) including (without
limitation), if applicable, VAT (in accordance with clause 20).
(3) Any expenses which are payable under subclause (2) and which have been
incurred by the Underwriters shall become due at the same time as (and
shall be deducted from) the payments to be made by CSFB Equities under
and in accordance with clause 7.
(4) Expenses which the Underwriters incur, or in respect of which the
Underwriters receive an invoice, subsequent to the time payments and
deductions are made under clause 7, which are payable under subclause
(2) (and which have not already been paid by the Company), shall be
invoiced by the Underwriters as those expenses arise or the invoices
are received and shall be paid by the Company within seven days of
receipt of the relevant invoice from the Underwriters.
13. WARRANTIES
(1) (a) The Company and the Seller (on a joint and several basis
subject to paragraph (b) below) represent and warrant to each
of the Underwriters in the terms set out in Schedule 4.
(b) Those warranties that are contained in paragraphs 16
(Properties) and 19 (Insurance) of Schedule 3 shall be given
on a several basis by the Company and the Seller and, in the
case of the Seller only, so far as the Seller is aware after
due and careful enquiry.
(2) The Company and the Seller shall notify CSFB Equities as soon as
reasonably practicable on becoming aware (whether before or after the
Commencement of Dealings) of anything which:
(a) (in its reasonable belief) indicates that any statement in the
Prospectuses is or might be untrue or misleading or that the
Prospectuses omit or might omit any matter whose inclusion in
the Prospectuses is required by Part IV of the Act, the
Listing Rules or the UK Listing Authority; or
(b) (in its reasonable belief) is or might be material in the
context of any assumption or other matter relevant to any
forecast or statement about prospects in the Prospectuses; or
(c) (in its reasonable belief) indicates that a significant change
or new matter has or might have occurred before the
Commencement of Dealings which would have been
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required to be included in the Prospectuses had such change or
new matter occurred before their publication.
(3) The Company and the Seller shall notify CSFB Equities as soon as
reasonably practicable upon becoming aware at any time before the
Commencement of Dealings of anything which (in its reasonable belief)
indicates:
(a) that any statement set out in Schedule 4 or clause 3 was or
might have been untrue or misleading at the date of this
agreement; or
(b) that, if any such statement had been or were to be repeated at
any time before the Commencement of Dealings with reference to
the circumstances existing at that time, it would or might
then be untrue or misleading.
(4) The Company and the Seller shall take all reasonable steps promptly to
provide CSFB Equities with any further information which it reasonably
requests if it is notified or otherwise become aware of anything
referred to in subclauses (2) or (3).
(5) If CSFB Equities is notified or otherwise becomes aware of anything
referred to in subclauses (2) or (3), it may, if it considers it proper
to do so, require the Company at the expense of the Company or (if
appropriate) the Seller:
(a) to prepare a supplementary prospectus, submit it in such terms
as CSFB Equities reasonably specifies to the UK Listing
Authority for its approval and, if approved, publish it;
(b) to make an announcement in such terms and manner as CSFB
Equities may reasonably specify;
(c) to despatch communications in such terms and manner and to
such persons or classes of persons as CSFB Equities may
reasonably specify; and
(d) to take such additional or alternative steps (whether similar
or not to any of the foregoing) as CSFB Equities may
reasonably specify.
(6) The Company and (in respect of sub-clauses (a), (b), (e), (f), (h) and
(l) only) the Seller (jointly and severally) represent, warrant and
agree with the Sponsor and each of the Underwriters that:
(a) neither the Company, the Seller, nor any of their affiliates
(as defined in Rule 501(b) under the Securities Act) nor any
persons acting on its or their behalf (other than the
Underwriters) has engaged in or will engage in any directed
selling efforts (as defined in Regulation S) in connection
with the Global Offer, and the Company, the Seller, and their
affiliates have complied with and will comply with the
offering restrictions requirement of Regulation S;
(b) neither the Company, the Seller, nor any of their affiliates
(as defined in Rule 501 under the Securities Act) nor any
person acting on its or their behalf and at its or their
instruction (other than the Underwriters) has engaged in or
will engage in any form of general solicitation or general
advertising (within the meaning of Rule 502(c) under the
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Securities Act) in connection with any offer to sell the Offer
Shares in the United States;
(c) for so long as any Offer Shares remain outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3)
of the Securities Act, the Company will, during any period in
which it is not subject to and in compliance with Section 13
or 15(d) of the Exchange Act or exempt from reporting pursuant
to Rule 12g3-2(b) thereunder, furnish to each holder or
beneficial owner of Shares and any prospective purchaser of
such Shares, upon the request of such holder, beneficial owner
or prospective purchaser, the information satisfying the
requirements of Rule 144A(d)(4)(I) under the Securities Act;
(d) the Company will take such actions as the Underwriters may
reasonably request to qualify, to the extent required, the
Offer Shares for offer and sale by the Underwriters through
their affiliates (as defined in Rule 501(b) under the
Securities Act) under the applicable securities laws of such
States of the United States or other jurisdictions as CSFB
Equities may reasonably designate and shall comply with such
laws so as to permit the continuance of sales and dealings in
such jurisdictions for as long as may be necessary to complete
the distribution of the Offer Shares; provided, however, that
in connection therewith the Company shall not be obliged to
file any general consent to service of process or (as
appropriate) to qualify as a foreign corporation or dealer in
securities in any jurisdiction in which it is not qualified or
subject itself to Tax in respect of doing business in any
jurisdiction in which it is not otherwise so subject. The
Company will promptly advise CSFB Equities of the receipt by
the Company of any notification with respect to the suspension
of the qualification of the Offer Shares for sale in any
jurisdiction or the initiation or threatening of any
proceeding for such purposes;
(e) neither the Company, the Seller nor any of their affiliates
(as defined in Rule 501(b) under the Securities Act) nor any
person acting on its or their behalf (other than the
Underwriters) has taken or will take any action that would
require the registration of the Offer Shares under the
Securities Act;
(f) neither the Company, the Seller nor any of their affiliates
(as defined in Rule 501(b) under the Securities Act) nor any
person acting on its or their behalf has engaged or will
engage, directly or indirectly, in any course of conduct which
has constituted or might reasonably be expected to cause or
result in the stabilisation or manipulation of the price of
the Offer Shares or any securities of the same class as the
Offer Shares;
(g) the Company is not, and as a result of the Global Offer or the
receipt or application of the proceeds thereof will not be, an
"investment company" as defined in the United States
Investment Company Act of 1940, as amended;
(h) so long as any of the Shares are "restricted securities"
within the meaning of Rule 144(a)(3) under the Securities Act,
neither the Company nor any of its affiliates (as defined in
Rule 501(b) under the Securities Act) will resell any Offer
Shares purchased by it;
(i) the Shares are not of the same class (within the meaning of
Rule 144A under the Securities Act) as securities which are
listed on a national securities exchange
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registered under Section 6 of the Exchange Act or quoted in a
US automated inter-dealer quotation system;
(j) the Company is a "foreign issuer" and reasonably believes that
there is no "substantial US market interest" (each as defined
in Regulation S) in the Shares or in any securities of the
same class as the Shares;
(k) the Company is not and does not intend or reasonably expect to
become a "passive foreign investment company" within the
meaning of section 1297 of the U.S. Internal Revenue Code of
1986, as amended; and
(l) none of the Offer Documents contains, as of its date or as of
the date hereof, an untrue statement of a material fact or
omits to state a material fact necessary in order to make the
statements made, in the light of the circumstances under which
they were made, not misleading.
(7) The Seller represents, warrants and agrees with the Sponsor and each of
the Underwriters that it has not and will not (and will procure that
the Broker shall not) procure purchasers for Offer Shares outside the
United Kingdom, the Channel Islands and the Isle of Man under the
Priority Offer or the Retail Offer.
(8) The above representations, warranties and covenants and the indemnity
in clause 17 shall continue in full force and effect in relation to the
Sponsor and the Underwriters notwithstanding its or their actual or
constructive knowledge with respect to any of the matters referred to
in the representations and warranties of the Company and the Seller (as
appropriate).
14. UNDERTAKINGS OF THE UNDERWRITERS
(1) Each Underwriter severally represents, warrants and undertakes to each
other and the Company and the Seller that:
(a) it understands and agrees that the Offer Shares have not been
and will not be registered under the Securities Act and may
not be offered or sold within the United States or to, or for
the account or benefit of, US persons except in accordance
with Regulation S under the Securities Act or pursuant to an
exemption from the registration requirements of the Securities
Act; it and its affiliates (as defined in Rule 501(b) under
the Securities Act) have not offered or sold, and will not
offer or sell, any Offer Shares (i) as part of its
distribution at any time and (ii) otherwise until 40 days
after the later of the commencement of the offering of the
Offer Shares and the last date on which Offer Shares are
delivered(the "DISTRIBUTION COMPLIANCE PERIOD"), except in
accordance with Rule 903 of Regulation S under the Securities
Act, provided, however, that only Credit Suisse First Boston
Corporation, ▇▇▇▇▇▇▇ ▇▇▇▇▇ International, ▇▇▇▇▇▇▇ Sachs & Co
or Salomon Brothers International Limited or their authorised
US affiliates (as defined in Rule 501(b) under the Securities
Act) who are broker-dealers registered under the Exchange Act
may offer and sell Offer Shares in the United States to
persons who they reasonably believe are qualified
institutional buyers in transactions exempt from the
registration requirements of the Securities Act; it agrees
that, at or prior to confirmation of a sale of the Offer
Shares, the Underwriter will have sent to each distributor,
dealer, or person receiving a
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selling concession, fee or other remuneration that purchases
the Offer Shares from it during the Distribution Compliance
Period a confirmation or notice to substantially the following
effect:
"The securities covered hereby have not been
registered under the US Securities Act of 1933, as
amended (the "Securities Act") and may not be offered
or sold within the United States or to, or for the
account or benefit of, US persons, (i) as part of
their distribution at any time, and (ii) otherwise
until 40 days after the later of the date of the
commencement of the offering of the Offer Shares and
the last date on which Offer Shares are delivered,
except in either case in accordance with Regulation S
(or Rule 144A, if available) under the Securities
Act. Terms used above have the meanings given to them
in Regulation S under the Securities Act."
Terms used in this paragraph (a) have the meanings given to
them by Regulation S;
(b) neither it nor its affiliates (as defined in Rule 501(b) under
the Securities Act), nor any persons acting on its or their
behalf, has engaged or will engage in any directed selling
efforts (as defined in Regulation S) with respect to the Offer
Shares, and it and they have complied and will comply with the
offering restrictions requirement of Regulation S; and
(c) neither it nor its affiliates (as defined in Rule 501(b) under
the Securities Act), nor any persons acting on its or their
behalf, has engaged or will engage in any form of general
solicitation or general advertising (as those terms are used
in Rule 502(c) under the Securities Act) in connection with
any offer or sale of the Offer Shares in the United States.
15. LIMITS ON LIABILITY
(1) The following limits apply to the liability of the Company and the
Seller (as the case may be) under this agreement.
(2) None of the limitations contained in this clause 15 shall apply to any
claim against the Seller or the Company which arises as a result of the
fraud or wilful default of the Seller or the Company, as the case may
be.
(3) Save to the extent that the Company has failed to comply with any of
its obligations under this agreement (and without prejudice to any
rights the Seller may have under the Separation Agreement), the Seller
shall not seek to recover any amount from any Group company or any of
its officers or employees in connection with any claim or matter
arising out of this agreement, or seek to set off against, or to
withhold from, any sum owing to any Group company or any of its
officers or employees any amount owing by any Group company or any of
its officers or employees in connection with any such claim or matter.
(4) If the Seller or the Company (as the case may be) pays to the Sponsor
and/or the Underwriters an amount in respect of any liability under
clause 13 or clause 17 and the Sponsor and/or the Underwriters
subsequently recover from a third party a sum which is directly
referable to such liability and which is, when added to the amount paid
by the Seller or the Company (as the case may be), in excess of the
total losses incurred by the Sponsor and/or Underwriters in respect of
any breaches of clause 13 or under clause 17 giving rise to such
liability and in respect of all other valid claims made pursuant to
this agreement, the Sponsor
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and/or Underwriters shall repay to the Seller or the Company (as the
case may be) an amount equal to such excess after deducting all
reasonable costs, charges and expenses incurred by the Sponsor and/or
Underwriters in recovering that sum from the third party and after
deducting any amount incurred or paid by the Sponsor and/or
Underwriters for Tax (or after compensating the Sponsor and/or
Underwriters for the loss of any relief or allowance) in respect of
such sum.
(5) The Company shall not have any liability under this agreement to the
Sponsor and/or Underwriters in respect of any breach by the Seller of
the provisions of clause 3 nor is the Seller to have any liability
under this agreement to the Company save as expressly set out in
clauses 3 and 13.
(6) The limits on liability contained in this clause 15 do not, for the
avoidance of doubt, affect or otherwise limit the liability of the
Seller or the Company under the Financial Services ▇▇▇ ▇▇▇▇ or any
legislation applicable to the Global Offer or at common law.
(7) No party to this agreement shall be entitled to recover damages or
obtain payment, reimbursement, restitution or indemnification more than
once in respect of the same shortfall, damage, deficiency or loss in
respect of claim(s) under this agreement or, as the case may be, the
Sponsor's Agreement.
16. TERMINATION
(1) Subject to subclauses (3) and (4), no party shall have any further
rights or obligations under this agreement if any of the circumstances
mentioned in subclause (2) occurs and, before Admission becomes
effective, CFSB Equities (on behalf of the Underwriters) serves on the
Company a notice (a "TERMINATION NOTICE") which states that CFSB
Equities is bringing this clause into operation and briefly describes
the main events or matters that CFSB Equities considers are relevant
for the purposes of subclause (2).
(2) Those circumstances are if:
(a) the Company, the Seller or the Guarantor fails to comply with
any obligation under this agreement or otherwise relating to
the Global Offer and CSFB Equities (on behalf of the
Underwriters) is of the opinion that such failure to comply is
material in any respect in the context of the Global Offer; or
(b) CSFB Equities (on behalf of the Underwriters) is of the
opinion that:
(i) any of the statements set out in clauses 3(1), (2)
or (3) or Schedule 4 is untrue, incorrect or
misleading in any material respect in the context of
the Global Offer; or
(ii) an event has occurred, or is likely to occur, and
that in the light of that event any of those
statements would be untrue, incorrect or misleading
in any material respect in the context of the Global
Offer were it to be made immediately before the
service of the termination notice and with reference
to the circumstances then existing; or
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(iii) any of the representations or warranties contained in
clauses 3, 13 and Schedule 4 is untrue, incorrect or
misleading in any material respect in the context of
the Global Offer if deemed to be repeated as at the
Settlement Date; or
(c) without prejudice to paragraph (b), CSFB Equities (on behalf
of the Underwriters) is of the opinion that an event has
occurred, or is likely to occur, and that the event:
(i) constitutes or (if it occurs) will constitute a
significant change or new matter which is material in
the context of the Global Offer; or
(ii) is or (if it occurs) will be material in the context
of any assumption or other matter relevant to any
forecast or statement about prospects in the
Prospectuses; or
(d) if at any time before 9.00 a.m. (London time) on the
Settlement Date CSFB Equities (on behalf of the Underwriters)
is of the opinion that on or after the date hereof any of the
following has occurred: (i) a suspension or material
limitation in trading in securities generally on the New York
Stock Exchange or the London Stock Exchange; (ii) a general
moratorium on commercial banking activities in London or New
York declared by the relevant authorities; (iii) a change or
development involving a prospective change in Tax affecting
the Group, the Shares or the transfer thereof or the
imposition of exchange controls by the United Kingdom or the
United States; (iv) the outbreak or escalation of hostilities
involving the United Kingdom or the United States, or the
declaration by the United Kingdom or the United States of a
national emergency or war, if the effect of any such event
specified in this subclause (d)(iv) in the judgement of the
Underwriters makes it impracticable or inadvisable to proceed
with the Global Offer or the delivery of the Shares on the
terms and in the manner contemplated in the Prospectuses; or
(v) such a change, whether or not foreseeable at the date of
this agreement, in national or international finance,
political, economic or market conditions (including disruption
to trading on any stock exchange or in any over the counter
market) or currency exchange rates or exchange controls as
would in CSFB Equities' (on behalf of the Underwriters)
reasonable view be likely to prejudice the Global Offer and
distribution of the Shares or dealing in the Shares in the
secondary market.
In this sub-clause references to an event occurring include a state of
affairs developing and events anywhere in the world; and in paragraph
(d) "MARKET CONDITIONS" means conditions regarding equities in the
sector to which the Company belongs or conditions regarding equities
generally.
(3) If a termination notice is served, the Seller shall forthwith pay to
the Underwriters the sum which the notice specifies is the aggregate
amount of all expenses falling within clause 12 incurred by the
Underwriters as at the date on which the termination notice is served
(or at any earlier date that is specified in the notice).
(4) Clauses 1, 9, 12, 13, 15, 16, 17, 19, 20, 23, 24 and 25 of this
agreement shall remain in full force notwithstanding a termination
notice. A termination notice shall not affect any party's accrued
rights in connection with any breach of this agreement or otherwise
and, in particular, in relation to clauses 13 and 17, and, in respect
of any claim against the Guarantor, clause 19.
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(5) A termination notice may be served by one of the methods prescribed by
clause 24.
17. GENERAL INDEMNITY
(1) No claim may be made by the Company, the Seller or the Guarantor
against the Underwriters or any of their respective affiliates (as
defined by Rule 501(b) of Regulation D under the Securities Act) or any
person who controls any Underwriter within the meaning of section 15 of
the Securities Act or section 20 of the Exchange Act or any of their
respective directors, officers, employees or agents (each an
"INDEMNIFIED PERSON") to recover any damage or expense which the
Company, the Seller or the Guarantor may suffer by reason of or arising
out of the performance of the Underwriters' obligations under this
agreement or otherwise in connection with the Global Offer, the
despatch of the Offer Documents or in connection with any untrue
statement or alleged untrue statement of a material fact contained in
any Offer Document, or any amendment or supplement thereto, or in
connection with any omission or alleged omission to state therein a
material fact necessary to make any statement therein not misleading,
except to the extent that the damage or expense is agreed by a relevant
settlement or determined by a court of competent jurisdiction to have
arisen out of or be based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any Offer Document,
or any such amendment or supplement, in reliance upon and in conformity
with written information furnished to the Company by any Underwriter
expressly for use therein.
(2) In consideration of the Underwriters agreeing to underwrite the Global
Offer on the terms of this agreement, the Company and the Seller
(jointly and severally) undertake with each Indemnified Person, to
fully and effectively indemnify each Indemnified Person from and
against all claims, actions, demands, proceedings, liabilities and
judgements (joint or several) ("CLAIMS") made or established against
any Indemnified Person (and against all losses, damages, charges or
expenses (joint or several) ("LOSSES") which an Indemnified Person may
suffer or incur) insofar as such claims or losses (or actions in
respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of a material
fact contained in any Offer Document, or any amendment or
supplement thereto, or arise out of or are based upon any
omission or alleged omission to state therein a material fact
necessary to make any statement therein not misleading; or
(ii) any breach or alleged breach by the Seller or the Company of
their obligations hereunder (including without limitation any
breach or alleged breach of any representations, warranties or
undertakings contained or referred to in this agreement or any
circumstances which constitute such a breach),
and will in each case reimburse each Indemnified Person for any legal
or other expenses (including any VAT properly chargeable on such
expenses) reasonably incurred by such Indemnified Person in connection
with investigating or defending any such action, loss or claim as such
expenses are incurred PROVIDED THAT neither the Company nor the Seller
shall be liable in any such case to the extent that any such claim or
loss is agreed by a relevant settlement or determined by a court of
competent jurisdiction to have arisen out of or be based upon an untrue
statement or alleged untrue statement or omission or alleged omission
made in any Offer Document, or any amendment or supplement thereto, in
reliance upon and in
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conformity with written information furnished to the Company by any
Underwriter expressly for use therein.
(3) CSFB Equities shall, as soon as reasonably practicable after it has
become actually aware thereof, notify the Company and the Seller of any
claim by an Indemnified Person pursuant to sub-clause (2) above (an
"INDEMNIFIED CLAIM"), giving such reasonable details as are then known
to it and appear to be relevant in relation to the Indemnified Claim,
provided that any failure to notify shall not relieve any indemnifying
person of any liability which it may have to any Indemnified Person.
The Seller, the Company and each Director shall provide CSFB Equities
with such information and assistance in relation to such Indemnified
Claim (or in relation to any third party claims or other matter forming
the basis of it) as CSFB Equities may reasonably require. Any
Indemnified Person against whom any relevant claim shall be made shall
be entitled to defend or otherwise deal with such claim as such
Indemnified Person may see fit (after having consulted with and
considered in good faith all reasonable requests which the Seller and
the Company (as the case may be) may make) provided that such
Indemnified Person shall not settle or compromise any such claim
without the consent of the Seller and the Company (such consent not to
be unreasonably withheld or delayed) unless (in the opinion of any
Underwriter) any failure to settle or compromise may negatively affect
the goodwill or reputation of any Indemnified Person (in which case no
such consent shall be required).
(4) For the avoidance of doubt, no claim may be made by the Company or the
Seller against any director, officer, employee or agent of any of the
Sponsor or the Underwriters and/or of any of their respective
affiliates in respect of any claim the Company or the Seller may have
against the Sponsor, the Underwriters and/or any of their affiliates.
(5) (a) Any sum payable under the indemnities contained in subclause
(2) or under this subclause (5)(a) or subclause (5)(b) shall
be paid without and free and clear of any deduction or
withholding whatsoever save only as may be required by law. If
any such deduction or withholding is required by law, the
relevant payer shall, on the date the relevant payment is
made, pay such additional amounts as may be necessary to
ensure that the relevant Indemnified Person receives a net
amount equal to the full amount which it would have received
in the absence of any requirement to make a deduction or
withholding.
(b) If any sum payable under the indemnity contained in subclause
(2), under subclause (5)(a) or under this subclause (5)(b) is
chargeable to Tax (otherwise than by way of withholding or
deduction), the relevant payer shall pay such additional
amount as will ensure that after deduction of the Tax so
chargeable there shall remain a sum equal to the amount that
would otherwise have been payable.
(c) To the extent that an Indemnified Person receives any Tax
credit, allowance, repayment or relief as a result of the
Seller or the Company (as the case may be) paying to the
Indemnified Person an additional amount under subclause (a) as
is referred to in paragraphs (a) or (b) above or as a result
of the deduction or withholding giving rise to the payment of
such additional amount or as a result of the Tax referred to
in (b), the Indemnified Person shall pay to the Seller or the
Company (as the case may be) so much of the economic benefit
from that Tax credit, allowance, repayment or relief, together
with any interest or repayment supplement, which the
Indemnified Person has received as does not exceed such
additional
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amount (any question as to the accrual or amount of any such
economic benefit, the order and manner of making any claim for
any Tax credit, allowance, repayment or relief, and the timing
of any payment, being determined by the relevant Indemnified
Person's auditors or the Sponsor's auditors, if the relevant
Indemnified Person does not have auditors).
(6) In this clause 17 "LIABILITY" means any kind of liability, any kind of
claim, demand or proceeding (including one made or commenced by the
relevant person concerned) or any expense, whether incurred in
connection with any claim, demand or proceeding, obtaining any form of
advice or otherwise.
(7) Each Indemnified Person (other than CSFB Equities and the Underwriters)
may with the prior written approval of CSFB Equities and the
Underwriters enforce the terms of this clause against the Company, the
Directors and the Seller under the Contracts (Right of Third Parties)
▇▇▇ ▇▇▇▇.
(8) The consent of each Indemnified Person (other than CSFB Equities and
the Underwriters) is not necessary for any variation (including any
release or compromise in whole or in part of any liability) or
termination of this clause.
18. STABILISATION
(1) On or before the Stabilisation Period End Date, to the extent permitted
by applicable laws and regulations, CSFB Equities or its agents shall
be entitled (but not obliged) to:
(a) offer Shares in excess of the aggregate number otherwise
required to be issued or sold under the Global Offer; and/or
(b) over-allocate Shares under the Global Offer or otherwise;
and/or
(c) create a short position in respect of the Shares; and/or
(d) itself or through its agents, effect transactions in Shares or
other securities in any securities market or over-the-counter
market or on any stock exchange or otherwise with a view to
stabilising or maintaining the price of the Shares or other
securities at a level which might not otherwise prevail in the
open market; and/or
(e) hedge any positions in the Shares or other securities and
cover or close-out or liquidate any such positions or hedging
transactions (including, for the avoidance of doubt, by making
sales of Shares or other securities); and
(f) in order to effect or facilitate any such transactions of the
kind referred to in sub-paragraphs (d) and (e), borrow in the
name or for the account of any Underwriter,
(any such transactions are referred to in this agreement as
"STABILISATION TRANSACTIONS").
(2) In carrying out Stabilisation Transactions CSFB Equities shall act as
principal and neither CSFB Equities nor its agents shall act as the
agents of the Seller, the Sponsor or the Company, the Underwriters or
any other person. Subject to this agreement, the exercise of the powers
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of CSFB Equities pursuant to subclause (1) (including, without
limitation, the decision whether or not to exercise such powers) shall
be at the absolute discretion of CSFB Equities and its agents and
neither CSFB Equities nor any of its employees or agents shall be
responsible or liable to, or owe any duties to, the Seller, the
Company, the Directors, the Sponsor or any Underwriter or any other
person in respect thereof (including, without limitation, in relation
to the timing of any Stabilisation Transaction or the amount of any
stabilisation loss).
(3) Subject to the terms and conditions of this agreement and as provided
in clause 3(7), the Seller grants to CSFB Equities an option
(exercisable from time to time) to purchase (or, if it so elects,
procure purchasers for) and the Seller shall sell at the Offer Price,
such number of additional Shares as, in aggregate, at 12 noon (London
time) on the Stabilisation Period End Date (and in the event of notice
of an election to purchase additional Shares being given prior to the
Stabilisation Period End Date, references to the Stabilisation Period
End Date shall be construed as references to the relevant date of such
notice in relation to such election), equals X where:
X=A-P+S1+S2-R
and
A = the number of Shares over-allocated by CSFB Equities (as
notified to the Seller by CSFB Equities on or before the First
Closing Date or Optional Closing Date, as the case may be)
provided that A shall not in any event exceed 45,978,250
Shares in aggregate;
P = the cumulative aggregate number of Shares ("STABILISATION
SHARES") which CSFB Equities has, on or before the
Stabilisation Period End Date, acquired or agreed to acquire
in Stabilisation Transactions;
S1 = the cumulative aggregate number of Stabilisation Shares in
which CSFB Equities has ceased to have an interest within the
meaning of section 208 of the Companies ▇▇▇ ▇▇▇▇ (but subject
to section 209 of that Act);
S2 = the number of Stabilisation Shares (if any) which,
immediately prior to 12 noon (London time) on the
Stabilisation Period End Date (but not earlier), does not fall
to be included in S1, despite CSFB Equities or its agents
having entered into agreements to sell them, solely as a
result of those agreements not having been completed at that
time; and
R = such number of Shares as may be specified by written notice
from CSFB Equities to the Seller not later than 12 noon
(London time) on the Stabilisation Period End Date,
provided that if S1 + S2 exceed P at the Stabilisation Period End Date,
the amount of R must be at least equal to the amount of such excess,
and provided further that CSFB Equities shall have the option
exercisable by written notice to the Seller not later than 12 noon
(London time) on the Stabilisation Period End Date to increase the
number represented by X (as used above) by such number of Shares (not
exceeding the Relevant Number, as defined below) as shall be specified
in the notice, but provided that such notice shall not at any time
result in X
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in aggregate exceeding 45,978,250 Shares (and shall from time to time
be disregarded to the extent that it would otherwise have that effect).
The "RELEVANT NUMBER" shall mean the number by which the Shares
over-allocated by CSFB Equities (as notified to the Seller by CSFB
Equities on or before the Closing Date) exceeds 45,978,250 Shares. This
option may be cancelled by CSFB Equities by written notice given to the
Seller not later than 12 noon (London time) on the Stabilisation Period
End Date.
(4) CSFB Equities shall have the option (the "ADDITIONAL OPTION"),
exercisable by written notice to the Seller not later than 12 noon
(London time) on the Stabilisation Period End Date, to purchase and to
require the Seller to sell at the Additional Option Price (as defined
below) on the terms and conditions contained in this agreement such
number of Shares ("ADDITIONAL OPTION SHARES"), if any, as at 12 noon
(London time) on the Stabilisation Period End Date, are equal in number
to 45,978,250 Shares minus A as defined above. "ADDITIONAL OPTION
PRICE" in relation to a Firm Additional Option Share (as defined below)
shall mean the higher of: (a) the Offer Price; and (b) the applicable
mid-market price of a Share quoted on the London Stock Exchange
Automated Quotation System at 3.30 p.m. (London time) on the business
day immediately preceding the Stabilisation Period End Date.
Such notices may only be given once and any notice of revocable
exercise given pursuant to the provision below shall constitute such
notice. The contract resulting from the exercise of the Additional
Option is referred to in this Agreement as the "ADDITIONAL CONTRACT".
(5) CSFB Equities may by written notice to the Seller not later than 12
noon (London time) on the Stabilisation Period End Date require the
Seller to transfer to it on the third business day following the
Stabilisation Period End Date such number of Shares as is equal to the
Firm Additional Option Shares (as defined below) on the terms set out
above. The effect of any such notice given by CSFB Equities shall
constitute a revocable exercise of the Additional Option.
(6) CSFB Equities may by one or more written notices given to the Seller
not later than 12 noon (London time) on the Stabilisation Period End
Date revoke, in respect of the number of Shares specified in such
notice, any notice of revocable exercise given as mentioned above. The
Shares in respect of which the revocable exercise of the Additional
Option is so revoked shall no longer be subject to any agreement under
the above provisions, and are referred to in this agreement as the
"LAPSED ADDITIONAL OPTION SHARES". With effect from 12 noon (London
time) on the Stabilisation Period End Date any notice of revocable
exercise given pursuant to the above shall immediately become an
irrevocable and absolute exercise of an option to acquire the number of
Shares (the "FIRM ADDITIONAL OPTION SHARES"), being the Additional
Option Shares less, if any, the total number of Lapsed Additional
Option Shares.
(7) For the avoidance of doubt it is acknowledged that the aggregate number
of Shares that may be sold pursuant to the Over-Allotment Option and
any Additional Contract shall not exceed 45,978,250 Shares. CSFB
Equities acknowledges that nothing in this clause 18 is intended to
deprive the Seller of beneficial ownership of the Shares or the
Additional Option Shares for any purpose, prior to such beneficial
ownership passing upon irrevocable exercise of the Over-Allotment
Option or Additional Option (as appropriate), but without prejudice to
the implications of any stock lending arrangement entered into by the
Seller in respect of such Shares.
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(8) Shares purchased pursuant to any Additional Contract shall be held
solely for long term investment purposes and, accordingly, CSFB
Equities undertakes to the Seller that none of the Shares acquired by
it pursuant to any Additional Contract, and no interest in any of such
Shares, may be disposed of by it until the expiry of two years after
the Stabilisation End Date (except with the prior written consent of
the Seller).
(9) Each time for the delivery of and payment for the Optional Shares,
being referred to in this clause as an "OPTIONAL CLOSING DATE", which
may be the First Closing Date shall be determined by CSFB Equities but
shall be not later than three full business days after written notice
of election to purchase Optional Shares is given. On any date notice of
election to purchase Optional Shares is given, the Seller shall deliver
to CSFB Equities a signed CREST transfer form deed and accompanying
certificates representing the applicable Optional Shares against
payment on the applicable Optional Closing Date of the purchase price
in pounds sterling, with respect to the Optional Shares in same day
funds, by wire transfer to an account or accounts designated by the
Seller, such account being at a bank acceptable to CSFB Equities, save
in each such case to the extent an off-set notice ("OFF-SET NOTICE") is
served in accordance with the following provisions. In the event that,
at the time of service of a notice of election to purchase Optional
Shares there remains outstanding any stock borrowing arrangement (the
"STOCK BORROWING AGREEMENT") between the Seller and CSFB Equities in
respect of Shares, then either CSFB Equities or the Seller may at any
time being not less than two full business days before the relevant
Optional Closing Date, serve an Off-Set Notice in writing to the other
requiring that the Seller's obligation to deliver Optional Shares at
the Optional Closing Date shall be discharged, in respect of such
number of Optional Shares as may be specified in such Notice, by the
delivery by the Seller to CSFB Equities of a duly executed deed of
release ("DEED OF RELEASE") in favour of CSFB Equities releasing it in
full from all obligations under the Stock Borrowing Agreement in
respect of such specified number of Shares, including in particular the
obligation of CSFB Equities to redeliver the specified number of Shares
to the Seller but excluding any obligation to pay any stock borrowing
fee to the Seller; provided always that the Seller and CSFB Equities
may not serve an Off-Set Notice in respect of Optional Shares to the
extent that the number of Optional Shares the subject of such notice
exceeds the number of Shares the subject of the Stock Borrowing
Agreement. Any delivery by the Seller of a Deed of Release shall be
made against payment on the applicable Optional Closing Date of the
applicable purchase price in pounds sterling, in same day funds by wire
transfer to an account or accounts designated by the Seller, such
account being at a bank acceptable to CSFB Equities.
19. GUARANTEE
(1) In consideration of, inter alia, the Underwriters agreeing to
underwrite their respective allocations, the Sponsor and CSFB Equities
agreeing to act in respect of the Global Offer and the Company and the
Directors undertaking their respective obligations under this
agreement, the Guarantor irrevocably and unconditionally:
(a) as principal obligor guarantees to the Sponsor and each of the
Underwriters prompt performance by the Seller of all its
obligations under this agreement including without limitation
those under clauses 3, 13 and 17;
(b) as principal obligor guarantees to the Company prompt
performance by the Seller of all its obligations under clauses
3 and 13;
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(c) undertakes with the Sponsor and each of the Underwriters that
whenever the Seller does not pay any amount when due under
this agreement, the Guarantor shall forthwith on demand by the
relevant party pay that amount as if the Guarantor instead of
the Seller were expressed to be the principal obligor;
(d) undertakes with the Company that whenever the Seller does not
pay any amount when due under clause 3 or clause 13, that the
Guarantor shall forthwith on demand by the relevant party pay
that amount as if the Guarantor instead of the Seller were
expressed to be the principal obligor;
(e) indemnifies the Sponsor and each of the Underwriters on demand
against any loss or liability suffered by any of them if any
obligation guaranteed by the Guarantor is or becomes
unenforceable, invalid or illegal;
(f) indemnifies the Company on demand against any loss or
liability suffered by any of them if any obligation guaranteed
by the Guarantor is or becomes unenforceable, invalid or
illegal; and
(g) as principal obligor guarantees to CSFB Equities prompt
performance by the Seller of all its obligations under the
Stock Lending Agreement.
(2) This guarantee is a continuing guarantee and will extend to the
ultimate balance of all sums payable by the Seller under this
agreement, regardless of any intermediate payment or discharge in whole
or in part. For the avoidance of doubt (and subject to clause 19(5)
below) the Guarantor shall only be liable under the terms of this
guarantee to the extent that the Seller has an outstanding obligation
to the Sponsor [or the Underwriters or the Company (as the case may be)
which has not been performed by the Seller.
(3) (a) Where any discharge (whether in respect of the obligations of
the Seller or any security for those obligations or otherwise)
is made in whole or in part or any arrangement is made on the
faith of any payment, security or other disposition which is
avoided or must be restored on insolvency, liquidation or
otherwise without limitation, the liability of the Guarantor
under this agreement shall continue as if the discharge or
arrangement had not occurred.
(b) The Sponsor, the Underwriters, the Company and the Directors
may concede or compromise any claim that any payment, security
or other disposition is liable to avoidance or restoration.
(4) The obligations of the Guarantor under this agreement will not be
affected by an act, omission, matter or thing which, but for this
provision, would reduce, release or prejudice any of its obligations
under this agreement or prejudice or diminish those obligations in
whole or in part, including (whether or not known to it or the Sponsor,
the Underwriters, the Company or the Directors (or any of them)):
(a) any time or waiver granted to, or composition with, the Seller
or other person;
(b) the release of the Seller or any other person under the terms
of any composition or arrangement with any creditors of any
person;
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(c) the taking, variation, compromise, exchange, renewal or
release of, or refusal or neglect to perfect, take up or
enforce, any rights against, or security over assets of, the
Seller or other person or any non-presentation or
non-observance of any formality or other requirement in
respect of any instrument or any failure to realise the full
value of any security;
(d) any incapacity or lack of powers, authority or legal
personality of or dissolution or change in the members or
status of the Seller or any other person;
(e) any variation (however fundamental) or replacement of this
agreement or any other document so that references to this
agreement in this agreement shall include each variation or
replacement;
(f) any unenforceability, illegality or invalidity of any
obligation of any person under this agreement or any other
document, to the intent that the Guarantor's obligations under
this agreement shall remain in full force and its guarantee be
construed accordingly, as if there were no unenforceability,
illegality or invalidity; or
(g) any postponement, discharge, reduction, non-provability or
other similar circumstance affecting any obligation of the
Seller under this agreement resulting from any insolvency,
liquidation or dissolution proceedings or from any law,
regulation or order so that each such obligation shall for the
purposes of the Guarantor's obligations under this agreement
be construed as if there were no such circumstance.
(5) The Guarantor waives any right it may have of first requiring the
Sponsor, the Underwriters or the Company (as the case may be) to
proceed against or enforce any other rights or security or claim
payment from any person (including without limitation the Seller, the
Company or the Directors) before claiming from the Guarantor under this
agreement.
(6) The Guarantor undertakes and represents to the Seller, the Company, the
Sponsor and to each Underwriter that the execution of this agreement by
it has been duly authorised by it and this agreement constitutes its
legal, valid and binding obligations, enforceable in accordance with
its terms and that all corporate approvals and authorisations required
by it for the execution of this agreement and the performance of its
terms have been obtained, are unconditional and are in full force and
effect.
20. VAT
(1) Whenever a person is obliged to pay any fee, commission or other sum to
any Underwriter or the Sponsor under this agreement for any supply of
services rendered by the relevant Underwriter or the Sponsor to that
person and any VAT is properly charged on it that person shall also pay
to the relevant Underwriter or the Sponsor (as the case may be) an
amount equal to that VAT on receipt of a valid VAT invoice.
(2) Whenever a person is obliged to pay a sum to any Underwriter or the
Sponsor under this agreement as reimbursement for any fee, cost, charge
or expense (the "RELEVANT COST") that person shall also pay to the
relevant Underwriter or the Sponsor (as the case may be) an amount
which:
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(a) if for VAT purposes the Relevant Cost is consideration for a
supply of goods or services made to the Underwriter or Sponsor
and the Underwriter or Sponsor does not charge VAT on it under
subclause (1), is equal to any input VAT incurred by the
Underwriter or Sponsor on that supply which the Underwriter or
Sponsor certifies that it is unable to recover from any Tax
authority (whether by repayment or credit); and
(b) if for VAT purposes the Relevant Cost is a disbursement
incurred by the Underwriter or Sponsor as agent on behalf of
that person (other than in circumstances where the Underwriter
or Sponsor acts as agent within the meaning of section 47(3)
of the Value Added Tax ▇▇▇ ▇▇▇▇ and other than in
circumstances where any Tax authority treats the supply in
respect of which the disbursement was incurred as a supply to
the Underwriter or Sponsor acting as agent by virtue of that
sub-section), is equal to any VAT paid on the Relevant Cost by
the Underwriter,
and, in the case of a payment under paragraph (b) above, the
Underwriter shall use reasonable endeavours to procure that the actual
supplier issues, a valid VAT invoice directly to that person.
21. COMPLIANCE
(1) The Company shall comply up to the Announcement Date with applicable
statutory requirements, including those referred to in subclause (2),
and all requirements of the Listing Rules (including those of the model
code on directors' dealings in securities), the Combined Code, the
admission and disclosure standards published by the London Stock
Exchange, the CREST Rules and other requirements relating to CREST and
the requirements of the City Code which affect the Company.
(2) The statutory requirements for the purposes of subclause (1) are those
of the Companies ▇▇▇ ▇▇▇▇, Part V of the Criminal Justice ▇▇▇ ▇▇▇▇, the
Act and the CREST Regulations.
(3) The Company shall use reasonable endeavours to comply up to the
Announcement Date with the Combined Code so as to ensure that the
Company is not required to make any statement in financial reports
and/or accounts for the financial year ending 31st December, 2001 or
any subsequent financial periods to the effect that it has not complied
with any aspect of the Combined Code.
22. NOTICES
(1) Any notice or document to be served under this agreement may be
delivered or it may be sent by post or facsimile transmission to the
party to be served at the relevant address specified in subclause (4)
or at any other address or fax number which the party to be served may
have notified to the other parties in accordance with this clause. Any
notice or other document sent by post shall be sent by prepaid first
class recorded delivery post (if within the United Kingdom) or by
prepaid airmail (if elsewhere).
(2) Any such notice or document shall be deemed to have been served:
(a) if delivered, at the time of delivery; or
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(b) if sent by post, at 10.00 a.m. on the second Business Day
after the day it is posted if sent within the United Kingdom,
or at 10.00 a.m. (local time at the place of destination) on
the fifth Business Day after it was put into the post if sent
by airmail; or
(c) if sent by facsimile transmission, at the expiration of 2
hours after the time of despatch, if despatched before 3.00
p.m. (local time at the place of destination) on any Business
Day and in any other case at 10.00 a.m. (local time at the
place of destination) on the Business Day following the date
of despatch.
(3) In proving service it shall be enough to prove that delivery was made,
that the envelope containing the notice or document was properly
addressed and posted (either by prepaid first class recorded delivery
post or by prepaid airmail, as the case may be) or that the facsimile
transmission was properly addressed and despatched, as the case may be.
(4) The following are the addresses and fax numbers of the Company, the
Directors, the Seller and the Sponsor for the purposes of
subclause (1):
THE COMPANY THE SELLER
▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Spherion (Europe), Inc.
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇ Fax: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Marked for the attention of: Marked for the attention of:
Finance Director General Counsel
THE SPONSOR AND THE UNDERWRITERS THE GUARANTOR
20 Columbus Courtyard Spherion Corporation
London 2050 Spectrum Boulevard
E14 4QJ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
Fax: ▇▇▇ ▇▇▇▇ ▇▇▇▇ Fax: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Marked for the attention of: Marked for the attention of:
▇▇▇ ▇▇▇▇▇▇▇▇ General Counsel
23. AMENDMENTS
(1) Subject to subclause (2), this agreement may be amended by agreement in
writing between any executive Director on behalf of the Company, any
executive officer on behalf of the Seller or the Guarantor and any
director of the Sponsor on its behalf and on behalf of the
Underwriters.
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(2) An amending agreement does not need to be signed on behalf of the
Seller or the Guarantor or the Company if the amendment which it makes
does not affect in any material respect the position under this
agreement (or the other document being amended) of the Seller,
Guarantor or Company (as the case may be).
(3) Subclauses (1) and (2) also apply to any document in an Agreed Form,
any other document connected with this agreement or the Global Offer
and to any amending agreement entered into under subclause (1).
24. SUPPLEMENTAL
(1) Time shall be of the essence as regards any date or period originally
fixed in this agreement or altered by this agreement.
(2) The Guarantor, the Company and the Seller undertake with the Sponsor
and the Underwriters to do all within their power to ensure that the
other Group companies comply with those provisions of this agreement
which are applicable to them.
(3) Nothing in this agreement excludes or restricts any right or remedy
under the general law (including the Act) of the Sponsor or the
Underwriters and the rights and remedies of the Sponsor and the
Underwriters under this agreement are cumulative.
(4) None of the rights or obligations under this agreement may be assigned
or transferred without the written consent of the other parties.
(5) It is acknowledged by the Seller that nothing in this agreement
constitutes the giving of investment advice by the Sponsor to the
Seller.
(6) In this agreement:
(a) "LIABILITIES" includes obligations; and
(b) unless otherwise stated, references to time are to United
Kingdom time.
(7) Except as expressly stated in this agreement, a person who is not a
party to this agreement may not enforce any of its terms under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇.
(8) (a) Subject to sub-clause (b) below this agreement contains the
whole agreement between the parties relating to the matters
contemplated by this agreement and supersedes all previous
agreements between the parties relating to these matters.
(b) Notwithstanding the provisions of sub-clause (a) above, the
Sponsor's Agreement and the Engagement Letters shall remain in
full force and effect in relation to the parties to them.
(9) This agreement may be executed in any number if counterparts, all of
which, taken together, shall constitute one and the same agreement, and
any party may enter into this agreement by executing a counterpart.
(10) This agreement is governed by and shall be construed in accordance with
English law and each of the parties irrevocably submits to the
exclusive jurisdiction of the English courts for
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all purposes relating to this agreement. Each of the Seller and the
Guarantor irrevocably appoints ▇▇▇▇▇▇▇ ▇▇▇▇▇ of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (F.A.O. Head of Litigation) to act as
its respective agent for service of process out of the English courts
in relation to all matters arising out of this agreement.
AS WITNESS the hands of the parties (or their duly authorised representatives)
on the date which appears first on page 1.
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SCHEDULE 1
THE SELLER
(1) (2) (3) (4) (5)
NAME AND ADDRESS NUMBER OF SHARES HELD NUMBER OF SALE NUMBER OF SHARES SUBJECT CONSIDERATION UNDER GLOBAL
OR TO WHICH ENTITLED SHARES TO BE TO OPTION IN ACCORDANCE OFFER (BEFORE DEDUCTION OF
IMMEDIATELY PRIOR TO SOLD WITH CLAUSE 3(7) COMMISSION, EXPENSES AND
LISTING STAMP DUTY, SDRT)
SPHERION (EUROPE) INC. 375,000,000 306,521,750 45,978,250
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇
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SCHEDULE 2
INTERPRETATION
(1) In this agreement:
"ACT" means the Financial Services ▇▇▇ ▇▇▇▇;
"ADMISSION" means the Listing and Admission to Trading;
"ADMISSION TO TRADING" means the proposed admission of the Shares to
trading on the market for listed securities of the London Stock
Exchange:
"AFFILIATE" means (save where used in the context of the Securities
Act) in relation to any party, any subsidiary undertaking or parent
undertaking of that party and any other subsidiary undertaking of that
parent undertaking;
"ANNOUNCEMENT DATE" means the date of announcement of the preliminary
results of the Group for the financial year ending on or about 31st
December, 2001;
"APPLICATION FORMS" means the application forms for Sale Shares in
connection with each of the Priority Offer, the Retail Offer and the
Employee Offer;
"BID" means a firm indication of interest in purchasing shares in the
Institutional Offer communicated to an Underwriter by or on behalf of a
prospective purchaser which on its face is valid and binding, according
to its terms, on the prospective purchaser and which was not withdrawn
prior to the Closing Date;
"BROKER" means DLJ direct Limited;
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which
banks in London are open for general business;
"CITY CODE" means The City Code on Takeovers and Mergers issued by the
Panel on Takeovers and Mergers;
"CLOSING DATE" means 27th March, 2001 being the final date on which
Application Forms and Bids were accepted by the Company and the
Underwriters (as the case may be) in the Global Offer;
"COMBINED CODE" means the combined code as defined in and appended to
the Listing Rules;
"COMMENCEMENT OF DEALINGS" means the commencement of unconditional
dealings in the Shares, with the authority of the London Stock Exchange
and the UK Listing Authority, on the market for listed securities of
the London Stock Exchange;
"CREST" means the system enabling title to securities to be evidenced
and transferred in dematerialised form operated by CRESTCo Limited;
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"CREST ACCOUNT" means a securities account held within CREST;
"CREST REGULATIONS" means the Uncertificated Securities Regulations
1995;
"CREST RULES" means those rules made by CRESTCo Limited with respect to
the provision of CREST;
"CSFB EQUITIES" means Credit Suisse First Boston Equities Limited of
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇;
"CSFB NOMINEE" means CSFB Equities Nominees Limited;
"DIRECTOR" means a director of the Company;
"EMPLOYEE LETTER" means the letter from the Company to employees dated
5th March, 2001 in relation to the Employee Offer;
"ENGAGEMENT LETTERS" means the Spherion Engagement Letter and the
▇▇▇▇▇▇▇ Page Engagement Letter;
"EXCHANGE ACT" means the United States Securities Exchange Act of 1934,
as amended;
"FINAL PROSPECTUS" means the supplementary prospectus in the Agreed
Form to be published pursuant to section 147 of the Act (as applied by
section 154A of the Act) to announce, amongst other things, the Offer
Price;
"FORMAL NOTICES" means the formal notices required under paragraph 8.7
of the Listing Rules in the Agreed Form and "FORMAL NOTICE" means any
of them;
"GLOBAL OFFER" means the Institutional Offer, the Priority Offer, the
Retail Offer and the Employee Offer;
"GROUP" means the Company and its subsidiary undertakings and "GROUP
COMPANY" means any of them;
"GUARANTEE" means the guarantee given by the Guarantor in clause 19;
"INSTITUTIONAL OFFER SHARES" means those Sale Shares offered pursuant
to the Institutional Offer, as set out in Schedule 3;
"LAST ACCOUNTS DATE" means 31st December, 2000;
"LISTING" means the proposed admission of the Shares to the Official
List in accordance with the Listing Rules;
"LISTING RULES" means those rules made by the UK Listing Authority
under section 142 of the Act;
"LONDON STOCK EXCHANGE" means London Stock Exchange plc;
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"LONG FORM REPORT" means the long form report on the Group dated on or
around 5th March, 2001prepared by Deloitte & Touche and addressed to
the Company and the Sponsor and CSFB Equities (on behalf of the
Underwriters);
"▇▇▇▇▇▇▇ PAGE ENGAGEMENT LETTER" means the engagement letter dated 5th
March, 2001 between the Sponsor and the Company;
"OFFER DOCUMENTS" means the Prospectuses, the Formal Notices, the
Priority Letter, the Employee Letter, the Application Forms, the
Placing Letter, the Press Announcements and any other press
announcements relating to the Company's intention to float, the issues
of any of the foregoing or Admission;
"OFFER PRICE" means 175 ▇▇▇▇▇ for each Sale Share;
"OFFER SHARES" means the Sale Shares and any Shares sold pursuant to
the option in favour of CSFB Equities set out in clause 3(7);
"OFFICIAL LIST" means the Official List of the UK Listing Authority;
"PLACEE" means a person from whom one of the Underwriters accepts a Bid
in the Institutional Offer to purchase Institutional Offer Shares and
to whom Institutional Offer Shares are allocated pursuant to the
Institutional Offer;
"PLACING LETTER" means the invitation telex and form of confirmation in
relation to the Institutional Offer in the Agreed Form;
"PRESS ANNOUNCEMENTS" means the press announcements in the Agreed Form;
"PRICE RANGE PROSPECTUS" means the price range prospectus published on
5th March, 2001 relating to the Global Offer;
"PRIORITY LETTER" means the letter from the Company dated 5th March,
2001 in relation to the Priority Offer;
"PROSPECTUSES" means the Final Prospectus and the Price Range
Prospectus and "PROSPECTUS" means any of them;
"QUALIFIED INSTITUTIONAL BUYER" has the meaning given under Rule 144A
of the Securities Act;
"REGISTRARS" means Capita IRG plc, acting as registrars and the
receiving bank in connection with the Global Offer;
"REGULATION S" means Regulation S under the United States Securities
Act of 1933, as amended;
"RULE 144A" means Rule 144A under the United States Securities Act of
1933, as amended;
"SALE SHARES" means the 306,521,750 Shares which the Seller is to sell
under this agreement and pursuant to the Global Offer, as set out in
Schedule 1;
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"SECURITIES ACT" means the United States Securities Act of 1933, as
amended;
"SELLER'S POWER OF ATTORNEY" means the Seller's power of attorney in
the Agreed Form;
"SEPARATION AGREEMENT" means the separation agreement dated 5th March,
2001 between the Company, the Seller and the Guarantor;
"SETTLEMENT DATE" means the date Admission becomes effective (expected
to be 2nd April, 2001);
"SHARES" means the issued ordinary shares of one ▇▇▇▇▇ each in the
capital of the Company;
"SHORT FORM REPORT" means the short form reports on the Group prepared
by Deloitte & Touche and contained in Part IV of the Price Range
Prospectus;
"SIGNIFICANT CHANGE OR NEW MATTER" means a significant change or
significant new matter to which section 147 of the Financial Services
▇▇▇ ▇▇▇▇ (as applied by section 154A of the Act) applies in the context
of the Global Offer;
"SPHERION ENGAGEMENT LETTER" means the engagement letter dated 13th
October, 2000 between the Sponsor and the Guarantor;
"STABILISATION PERIOD END DATE" means the 30th day after the Settlement
Date;
"STATEMENT" includes any forecast or estimate and any expression of
opinion, belief, expectation, intention or policy;
"STOCK LENDING AGREEMENT" means a stock lending agreement between the
Seller and CSFB Equities dated the Settlement Date;
"SUBSIDIARY UNDERTAKING" AND "PARENT UNDERTAKING" shall have the
meaning given in section 258 of the Companies ▇▇▇ ▇▇▇▇;
"TAX" means all taxes, levies, imposts, duties or charges of a fiscal
nature whether of the United Kingdom or elsewhere, together with all
penalties, charges and interest relating to any of the foregoing and
regardless of whether the person concerned is primarily liable or not,
including (without limitation) corporation tax, advance corporation
tax, income tax, capital gains tax, value added tax, national insurance
contributions, capital duty, stamp duty, SDRT, inheritance tax and all
other taxes on gross or net income, profits or gains, distributions,
receipts, sales, use, occupation, franchise, value added, and personal
property;
"TAX AUTHORITY" means any taxing or other authority whether within or
outside the United Kingdom competent to impose any liability to Tax;
"TAXES ACT" means the Income and Corporation Taxes ▇▇▇ ▇▇▇▇;
"US PERSON" means a US person with the meaning of Regulations;
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"VAT" means UK value added tax chargeable under the Value Added Tax ▇▇▇
▇▇▇▇, any similar tax imposed to implement the Sixth Council Directive
of 17 May 1977 (77/388/EEC) within the European Union and any similar
tax on value added imposed by any country outside the European Union;
and
"VERIFICATION NOTES" means the notes verifying the information in the
Prospectuses in the Agreed Form.
(2) References in this agreement to Admission becoming effective are
references to it becoming effective in accordance with paragraph 7.1 of
the Listing Rules and paragraph 2.1 of the admission and disclosure
standards published by the London Stock Exchange.
(3) Any reference in this agreement to a person being connected with
another person is to be construed in accordance with section 839 of the
Income and Corporation Taxes ▇▇▇ ▇▇▇▇.
(4) If a supplementary prospectus (other than the Final Prospectus) is
published in connection with the Global Offer, references in this
agreement to the Prospectuses (or any of them) are, as the context
permits, to be read as references to:
(a) the supplementary prospectus; or
(b) the Prospectuses (or either of them) and the supplementary
prospectus taken together.
(5) References in this agreement to expenses include costs, charges and
expenses of every description.
(6) References to any arrangement related to the Global Offer include any
promotional, underwriting, stabilisation or distribution arrangement,
transaction or action which is related to the Global Offer.
(7) References, express or implied, to an enactment includes references to:
(a) that enactment as re-enacted, amended, renumbered, extended or
applied by or under any other enactment (before or after the
signature of this agreement);
(b) any enactment which that enactment re-enacts (with or without
modification); and
(c) any subordinate legislation made (before or after the
signature of this agreement) under that enactment, as
re-enacted, amended, renumbered, extended or applied as
described in paragraph (a) above, or under any enactment
referred to in paragraph (b) above,
and for the avoidance of doubt "enactment" includes any rule,
regulation or requirement of the London Stock Exchange, the Securities
and Investments Board, any Self Regulating Organisation and any other
body or authority acting under the authority of any enactment, and any
legislation in any jurisdiction.
(8) Where any statement is qualified by the expression "so far as each of
the Seller/Company Directors is aware" or any similar expression that
statement shall be deemed to include an additional statement that it
has been made after due and careful enquiry (unless otherwise expressly
stated).
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(9) Where any obligation, representation, warranty or undertaking in this
agreement is required to be made, undertaken or given by two or more of
the Underwriters they shall be severally (and not jointly) responsible
in respect of it unless otherwise stated.
(10) References to "OPINION" or "OPINIONS" include expressions of belief,
expectation, intention and policy.
(11) References to an uncertificated share, or to a share being held in
uncertificated form, shall mean a share which is or is to be recorded
on the register of members of the Company as being held in
uncertificated form, and any reference to a certificated share shall
mean any share other than an uncertificated share.
(12) References to "material" mean material in the context of the Global
Offer.
(13) Paragraphs (1) to (12) of this schedule apply throughout this
agreement, unless the contrary intention appears.
(14) The headings in this agreement do not affect its interpretation.
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SCHEDULE 3
UNDERWRITING ALLOCATIONS
(1) (2)
UNDERWRITER NUMBER OF INSTITUTIONAL OFFER
SHARES
Credit Suisse First Boston Equities Limited
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
Deutsche Bank ▇▇
▇▇▇▇▇▇▇ Brothers International Limited
HSBC Bank plc
West LB Panmure Limited
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SCHEDULE 4
REPRESENTATIONS AND WARRANTIES TO BE GIVEN
BY THE SELLER AND THE COMPANY
1. PROSPECTUS
(1) With regard to each Prospectus:
(a) all statements in each Prospectus and in the other Offer
Documents are true and accurate and are not misleading;
(b) without prejudice to subparagraph (a), each forecast and
estimate and each expression of opinion, belief, expectation,
intention or policy in each Prospectus or otherwise published
or caused to be published by the Guarantor, the Seller or the
Company in connection with the Global Offer is made on
reasonable grounds after due and careful consideration and can
be properly supported;
(c) each Prospectus contains all the information specified by the
Listing Rules or required by the UK Listing Authority as a
condition of Admission;
(d) each Prospectus contains all such information as (having
regard to the matters referred to in section 146(3) and 154A
of the Act) investors and their professional advisers would
reasonably require, and reasonably expect to find there, for
the purpose of making an informed assessment of:
(i) the assets and liabilities, financial position,
profits and losses, and prospects of the Company and
of the Group; and
(ii) the rights attaching to the Shares,
being information which is within the knowledge of the
Company, any Director or the Seller or the Guarantor or which
it would be reasonable for any such person to obtain by making
enquiries;
(e) taken as a whole, each Prospectus gives a view of the Group,
including its prospects, which is reasonable and not
misleading; and
(f) each Prospectus is not untrue or misleading by omission or by
misstatement.
(2) Without prejudice to the generality of subparagraph (1), subparagraph
(1) applies to the material in each Prospectus which relates to:
(a) the Company's working capital and indebtedness;
(b) the trends in the Group's business since the Last Accounts
Date;
(c) the Group's financial position, profits and prospects; and
(d) the Directors.
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(3) The financial information relating to the Group contained in the Short
Form Report, the Price Range Prospectus and other financial information
contained in each Prospectus gives a true and fair view of the profit
and cash flow of the Group for each of the periods stated and of the
state of affairs of the Group at the dates stated.
(4) The description in the Price Range Prospectus of the accounting
policies which have been adopted in preparing the financial information
referred to in sub-paragraph (3) is true and not misleading.
(5) No statement in the notes to any of the financial information referred
to in sub-paragraph (3) is untrue or misleading and each opinion which
those notes attribute to the Company or the Directors has been
considered and agreed to by the Directors, is fair and reasonable,
honestly held by them and can be properly supported.
(6) Deloitte & Touche who have certified certain financial statements of
the Company and its subsidiaries, are independent public accountants as
required by the Securities Act and the rules and regulations of the
Commission thereunder.
2. CORPORATE MATTERS
(1) All of the issued share capital of each subsidiary of the Company has
been duly authorised and validly issued and is fully paid and the share
capital of each subsidiary is owned by the Company (directly or through
subsidiaries or nominees) and free from liens, charges and
encumbrances.
(2) The share capital of the Company will, upon Admission becoming
effective, be as described in the Price Range Prospectus; all of the
Sale Shares will upon Admission becoming effective be duly and validly
authorised and issued and fully paid; all of the issued share capital
of each other member of the Group has been duly and validly authorised
and issued, is fully paid and not subject to further assessment and
(except as disclosed in the Price Range Prospectus) is owned by the
Company or one or more wholly-owned subsidiaries of the Company and is
free of all encumbrances and third party rights and interests.
(3) Except as disclosed in the Prospectuses, no Group company is a party to
any contract or arrangement (except those the subject of this
agreement) under which any person is entitled, or could become
entitled, to have allotted or issued to him any shares or other
securities in any Group company.
3. CAPACITY
(1) Save as referred to in the Prospectuses, the Guarantor, the Seller and
the Company have power under their memoranda and articles of
association (or equivalent documents) to effect the Global Offer in the
manner proposed, and to enter into and perform this agreement, without
any further sanction or consent by their respective members or any
class of them and there is no consent required by the Guarantor, the
Seller or the Company to effect the Global Offer which has not been
unconditionally and irrevocably obtained, save for conditions that
would be satisfied upon Admission becoming effective. Neither the
Global Offer nor Admission will exceed or infringe any relevant laws,
regulations or restrictions or the terms of any contract, obligation or
commitment by or binding upon the Guarantor or the Seller or
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any Group company or result in the imposition or variation of any
rights or obligations of the Guarantor or the Seller or any Group
company.
(2) All consents, approvals, authorisations, orders, registrations,
clearances and qualifications of or with any court or government agency
or body having jurisdiction over the Seller or the Company or any of
its subsidiaries or any of their properties or any stock exchange
authorities required for the execution and delivery by the Seller or
the Company of this agreement to be duly and validly authorised have
been obtained or made and are in full force and effect.
4. LONG FORM REPORT AND VERIFICATION NOTES
(1) All material information requested by Deloitte & Touche from any Group
company for the purposes of the Long Form Report has been supplied and
the Long Form Report is true and accurate in all material respects, and
none of the Directors disagrees with any aspect of the Long Form
Report.
(2) The opinions attributed to the Directors in the Long Form Report are
fair and reasonable, are honestly held by the Directors and can be
properly supported.
(3) The replies contained in the Verification Notes and any supporting
documents to the Verification Notes have been approved by each of the
Directors and are true and not misleading.
(4) All replies in the Verification Notes attributed to the Seller, the
Company or any employee of the Seller or the Group and any supporting
documents prepared by or on behalf of the Seller, the Directors or any
employee of the Seller or the Group or the Company have been given or
prepared in good faith and with due care and attention.
(5) All replies in the Verification Notes not given by the Company or the
Directors and any supporting documents not prepared by or on behalf of
the Directors or the Company have been given or prepared by persons
considered by the Directors to have appropriate knowledge and
responsibility to enable them properly to provide such replies or
prepare such supporting documents.
(6) The statements of opinion attributed to the Directors or any employee
of the Seller or the Group contained in the replies to the Verification
Notes are fair and reasonable, are honestly held by the relevant person
and can be properly supported.
(7) There are no other facts which are known to any of the Directors or any
employee of the Seller or the Group which materially affect the
accuracy or completeness of any of the replies contained in the
Verification Notes.
5. WORKING CAPITAL
In respect of the report on the consolidated cash flow and working
capital projections of the Group referred to in item (v) of Part A of
Schedule 2 of the Sponsor's Agreement:
(a) it has been prepared after due and careful enquiry and on the
bases and assumptions stated in it which, after due enquiry,
the Directors believe to be reasonable;
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(b) all statements of fact in it are true and accurate in all
respects and not misleading in any respect;
(c) all expressions of opinion contained in it are fair and
reasonable, are, after due enquiry, honestly held by the
Directors and can be properly supported;
(d) there are no other facts or assumptions which in any case
ought reasonably to have been taken into account which have
not been taken into account in the preparation of the report;
and
(e) the Company will have sufficient working capital for its
present and future (in respect of at least 12 months after
Admission) requirements having regard to existing bank
balances and facilities available.
6. NON-APPLICABILITY
All statements made by, or on behalf of (acting on instructions and
information supplied by any Group company), the Company in connection
with any application to the UK Listing Authority for certain
information to be omitted from the Prospectus are true and accurate and
are not misleading in any respect and all relevant facts have been
disclosed to the UK Listing Authority in connection therewith.
7. CONFLICTS OF INTEREST
The Prospectus contains all information concerning any actual or
potential conflicts of interest between any Group company and any
Director or any company of which any Director is a director or in which
he has a material interest.
8. POSITION SINCE LAST ACCOUNTS DATE
Since the Last Accounts Date and except as disclosed in the Prospectus:
(a) each Group company has carried on its business in the ordinary
and usual course;
(b) there has been no material change in the financial or trading
position of any Group company;
(c) no Group company has entered into any material contract or any
arrangement of an unusual or onerous or long-term nature;
(d) there have been no significant changes in (or any developments
involving a probable significant prospective change in) or
affecting the condition (financial or other), prospects,
earnings, business affairs, management or properties of the
Company or the Group, whether or not arising in the ordinary
course of business; and
(e) neither the Company nor any of its subsidiaries has sustained
any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labour dispute or court or governmental
action, order or decree and, since the respective dates as of
which information is given in the
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Prospectus, there has not been any change in the capital stock
or long-term debt of the Company or any of its subsidiaries.
9. CONTRACTS, ETC.
(1) Except as disclosed in the Prospectus, no Group company is a party to,
or affected by, any contract or arrangement otherwise than by way of a
bargain at arm's length, except contracts or arrangements to which the
only parties are the Company and its wholly-owned subsidiaries and
usual guarantees of the liabilities or obligations of the Company and
its wholly-owned subsidiaries.
(2) Except as disclosed in the Prospectus, no contract or arrangement
exists between the Company and any person who owns or has any interest
in or rights in relation to any Shares (or any person who is connected
with such a person) with regard to:
(a) the management of any business of any Group company; or
(b) the appointment or removal of any of the directors of any
Group company; or
(c) any other matter concerning any Group company or its affairs.
(3) There are no existing grounds for rescission, avoidance or repudiation
of any material agreement or other material transaction to which any
Group company is a party, none of such agreements or other transactions
are invalid and no Group company has received notice of any intention
to terminate any such agreement or repudiate or disclaim any such
transaction.
(4) No event has occurred or is subsisting or is about to occur which
constitutes or would with the giving of notice and/or lapse of time
constitute a default, or result in the acceleration by reason of
default, of any material obligation, under any agreement, undertaking,
instrument or arrangement to which any Group company is a party or by
which it or any of them or any of their respective properties, revenues
or assets are bound or in the infringement by the Group of any rights
held by third parties.
(5) So far as the Seller or the Company is aware no material supplier or
client of any Group company has ceased or will cease to do business
with the Group or reduce its custom with the Group as a result of the
Global Offer.
10. TAX
(1) The audited balance sheet of the Company and the audited consolidated
balance sheet of the Group as at the Last Accounts Date make proper
provision for, or properly disclose, all Tax liabilities which ought to
be provided for or disclosed in accordance with generally accepted
accounting principles applicable in the United Kingdom.
(2) Since the Last Accounts Date, no Group company has incurred any Tax
liability which could reasonably be considered material in the context
of the Global Offer except as a result of carrying on its business in
the ordinary course. Since the Last Accounts Date, no accounting period
(as defined in section 12 of the Taxes Act) of any Group company other
than the Company has ended as referred to in section 12(3) of the Taxes
Act. The Company ceased to trade on 28 February 2001 which brought a
Tax accounting period to an end on that date.
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(3) All Tax which could reasonably be considered material in the context of
the Global Offer and which has become due from any Group company or for
which any Group company has become obliged by law to account has been
paid or accounted for in full.
(4) No claim (other than for Tax arising as a result of carrying on the
business of the Group in the ordinary course) or dispute involving any
Group company has been made by or arisen with the Inland Revenue, HM
Customs and Excise or any other Tax authority (in the United Kingdom or
elsewhere) which could reasonably be considered material in the context
of the Global Offer. So far as the Company and each of the Directors is
aware, there is no significant risk that such a claim will be made or
that such a dispute will arise.
(5) Each Group company has made all returns, given all notices and supplied
all information required to be supplied to all relevant Tax
authorities; all such information was and remains complete and accurate
in all material respects; all such returns and notices were and remain
complete and accurate in all material respects and were made on a
proper basis.
(6) No Group company is, and so far as the Seller or the Company is aware
there are no circumstances by reason of which any Group company may,
become liable to pay, to any Tax authority any penalty, fine, surcharge
or interest in respect of Tax (including in respect of any failure to
make any return, give any notice or supply any information to any
relevant Tax authority or any failure to pay Tax on the due date for
payment), which could reasonably be considered material in the context
of the Global Offer.
(7) No material transaction in respect of which any consent, confirmation
or clearance was required or sought from any Tax authority or in
relation to which it would be usual to seek consent, confirmation or
clearance from any Tax authority has been entered into or carried out
by any Group company within the past six years without such consent,
confirmation or clearance having first been properly obtained. All
information supplied to any Tax authority or other appropriate
authority in connection with any such consent, confirmation or
clearance disclosed all facts and circumstances material to the giving
of such consent, confirmation or clearance. Any transaction for which
such consent, confirmation or clearance was obtained within the past
six years has been carried out in all material respects in accordance
with the terms of such consent, confirmation or clearance and the
application on which the consent, confirmation or clearance was based
and at a time when such consent, confirmation or clearance was valid
and effective. No facts or circumstances have arisen since any such
consent, confirmation or clearance was obtained which would cause the
consent, confirmation or clearance to become invalid or ineffective.
(8) Each Group company is, to the extent required, registered for the
purposes of VAT (or any equivalent Tax in any other relevant
jurisdiction) and has complied in all material respects with the terms
of legislation relating to VAT or such equivalent Tax.
(9) No Group company is or so far as the Seller or the Company is aware
will become liable to pay, or make reimbursement or indemnity in
respect of, any Tax in consequence of the failure by any other person
other than any other member of the Group to discharge that Tax within
any specified period or otherwise, where such Tax relates to income,
profits or gains earned, accrued or received, or to any event or
circumstance occurring or arising or deemed to occur or arise (whether
wholly or partly) prior to Admission.
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(10) All amounts required to have been paid to any Tax authority in respect
of any employee (including any Tax deductible from any amounts paid to
an employee and any national insurance, social fund or similar
contributions required to be made in respect of employees) by a Group
company up to the date hereof have been duly paid and each Group
company has made all such deductions and retentions as should have been
made under applicable laws or regulations.
(11) All duties, fees and penalties payable in respect of the capital of
each Group company (including any premium over nominal value at which
any share was issued) have been duly accounted for and paid.
(12) All documents in the possession or under the control of each Group
company or to the production of which any Group company is entitled,
and in the enforcement of which any Group company may be interested,
have been duly stamped.
(13) Each Group company is and has at all times been resident for Tax
purposes in its place of incorporation and is not and has not been
treated as resident in any other jurisdiction for any Tax purpose
(including any double Taxation arrangement).
11. LITIGATION ETC.
(1) No Group company and no director of a Group company is or has since 1st
March, 2000 been involved (in the United Kingdom or elsewhere) in any
proceedings (as plaintiff or defendant) which (individually or in the
aggregate), have or have had or (if determined adversely to such Group
company or director) would have a significant effect on the current or
future financial position or prospects of the Group. Neither the
Company nor any of the Directors nor the Seller nor the Guarantor is
aware of any such proceedings (in the United Kingdom or elsewhere)
being pending or threatened.
(2) In subparagraph (1) "PROCEEDINGS" includes any civil or criminal
proceedings, any form of arbitration, employee dispute, and any action
or investigation by (or by any person appointed by) any governmental,
statutory, public or regulatory authority or organisation of or in any
country (including any investment exchange and any authority or body
which regulates investment business or which is concerned with mergers
or Tax) or by the Commission or any other agency of the European Union.
12. FINANCINGS
No event or matter has occurred or come to light, which event or matter
is still outstanding, which entitles or has entitled (or would entitle,
with the giving of notice, the lapse of time or the satisfaction of
other conditions) any bank, bond trustee, bondholder or similar
creditor to require a Group company to make any repayment (or other
payment on account of principal) in respect of any financing to remain
after Admission, or to terminate the availability of any such financing
to a Group company. So far as the Company is aware, there is no
significant risk that such an event or matter will occur or arise.
13. INSOLVENCY
(1) No order has been made or resolution passed by the members of any Group
company nor has any petition been presented for the winding-up of any
Group company or for the appointment
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of a provisional liquidator to any Group company or for an
administration order in respect of any Group company or has any such
action been threatened against any Group company.
(2) No receiver or receiver and manager has been appointed by any person of
the whole or any part of the business or assets of any Group company.
(3) No voluntary arrangement has been proposed under Section 1 of the
Insolvency ▇▇▇ ▇▇▇▇ in respect of any Group company and no compromise
or arrangement has been proposed, agreed to or sanctioned under Section
425 of the Companies ▇▇▇ ▇▇▇▇ in respect of any Group company (save as
disclosed in the Prospectus).
(4) No action has been taken by any Group company or as far as each of the
Directors is aware no matter has occurred which is equivalent or in all
material respects similar in any jurisdiction to any of the actions on
matters referred to in subparagraphs (1), (2) and (3).
14. AUTHORITY TO CARRY ON BUSINESS
(1) Each Group company has been duly and validly incorporated and is of
good standing and has full corporate power and authority to carry on
its activities in the ordinary course of business as described in the
Price Range Prospectus and has obtained all material licences,
permissions, authorisations and consents required for the carrying on
of its business and the Group has not received notice that any of such
licences permissions, authorisations and consents are not in full force
and effect.
(2) There are no circumstances which indicate that any of such licences
permissions, authorisations or consents may be revoked or not renewed,
in whole or in part, in the ordinary course of events.
(3) Each Group company and each of their officers, agents and employees,
has complied in all material respects with all legal and other
requirements applicable to its business.
15. THE GROUP
(1) Save as disclosed in the Prospectus, no Group company is a party to any
contract or arrangement under which the Company's direct or indirect
interest in the share capital of any other company could be reduced or
ended or the Company could acquire any direct or indirect interest in
any other company or business. For this purpose "COMPANY" includes a
company incorporated outside the United Kingdom.
(2) No Group company is or has during the last six years been a party to
any material contract or arrangement, or involved in any course of
conduct, to which any of the following applies:
(a) the Restrictive Trade Practices Acts 1976 and 1977, whilst
those acts were in force;
(b) any provision of the Competition ▇▇▇ ▇▇▇▇, regardless of
whether the relevant provisions of that act are still in
force;
(c) Article 81 or 82 (formerly Articles 85 and 86) of the Treaty
establishing the European Community; or
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(d) any provision of the law of any country or territory outside
the United Kingdom which relates to anti-trust or competition
matters,
or is void and unenforceable (whether in whole or in part) or may
render the Company liable to proceedings under any such legislation as
is referred to in sub-paragraphs (a) to (d) above.
(3) No Group Company has given an undertaking and no Group company is aware
that any order has been made against nor has it received a request for
information or entered into correspondence with any court, tribunal,
governmental, national or supra-national authority pursuant to any
anti-trust or similar legislation in any country in which it carries on
business or has assets or sales.
16. PROPERTIES
Except as specifically disclosed in the Prospectus, the Group has good
and marketable title to all material real properties and all other
properties owned by it, in each case free from liens, encumbrances and
defects that would materially affect the value thereof or materially
interfere with the use made or to be made thereof by it; and except as
specifically disclosed in the Prospectus, the Group holds any material
leased property under valid and enforceable leases with no exceptions,
restrictions or covenants that would materially interfere with the use
made or to be made thereof by it.
17. INTELLECTUAL PROPERTY
Except as specifically disclosed in the Prospectus, so far as the
Directors are aware the Group owns free of any encumbrances (or has
licensed to it on reasonable terms) or otherwise has the benefit or use
on reasonable terms with the authority of the owner or licensor thereof
of, adequate trademarks, trade names and other rights including
know-how, copyright (including without limitation in any software used
by any Group company), confidential information and other intellectual
property (collectively, "INTELLECTUAL PROPERTY RIGHTS") necessary to
conduct, in all material respects, the business now operated by it, and
has not received any notice of infringement of or conflict with rights
of others with respect to any Intellectual Property Rights.
18. PENSIONS
(1) Save as disclosed in the Long Form Report or the ▇▇▇▇▇▇▇ ▇▇▇▇▇ due
diligence report, no Group company is under any material legal
liability or voluntary commitment to pay or make any contribution in
respect of any pension or other retirement, death or disability benefit
to any person.
(2) All information provided by the Company in respect of any pension
scheme of the Group is complete and accurate in all material respects.
(3) All pension schemes have been operated in accordance with all
applicable rules and laws and in particular all contributions payable
by the Company or any Group company have been paid.
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(4) All sums payable in respect of any pension scheme (whether payable by
the Company, any Group company, the members of the trustees) have been
paid and no material services have been rendered or requested for which
an account has not been rendered.
(5) All pension schemes provide only money purchase benefits (as defined in
section 84 of the Social Security Act 1986) for the beneficiaries of
them and neither the Company nor any Group company has given any
promise or assurance (oral or written) to any beneficiary that his or
her benefits under any pension scheme will be calculated wholly or
partly by reference to any person's remuneration or equate
(approximately or exactly) to any particular amount.]
19. INSURANCE
All the material assets and undertaking of each Group company of an
insurable nature are and have at all material times been adequately
insured and the Group companies are now and have at all material times
been adequately covered against accident, damage, injury, third party
loss and loss of profits.
20. CONTINGENT LIABILITIES
(1) No Group company is likely to have any existing or contingent material
liabilities in respect of any properties previously occupied by it or
in which it owned or held any interest, including without limitation,
leasehold premises assigned, surrendered or otherwise disposed of.
(2) So far as the Company and the Directors are aware, no Group company has
been or is a guarantor of a tenant's obligations under any lease where
the tenant was not a Group company.
21. GENERAL
(1) The Global Offer and the other transactions provided for by this
agreement and all related arrangements will, so far as not the direct
responsibility of the Sponsor and/or CSFB Equities (and subject to
there having been no breach by an Underwriter of the representations,
warranties and undertakings in clause 6(1) of this agreement), be
carried out in accordance with all applicable laws and regulatory
requirements in the United Kingdom and elsewhere and in accordance with
and subject to this agreement.
(2) All information and confirmations provided to the Sponsor by or on
behalf of the Company in connection with its obligations as Sponsor
under the Listing Rules are true and accurate.
(3) All documents required by the Listing Rules to be included in the
Listing Application and/or required by the LSE Admission Standards to
be included in the Trading application have been or will be (on or
before 5th March, 2001) supplied to the UK Listing Authority and/or the
London Stock Exchange and all matters which should be taken into
account by the UK Listing Authority and the London Stock Exchange in
considering the suitability of the Shares for listing have been
disclosed in the Prospectus or disclosed to the Sponsor.
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SIGNED as a deed by ▇▇▇ ▇▇▇▇▇▇ )
as a duly authorised officer of )
SPHERION (EUROPE) INC. )
acting under the authority of that )
company in the presence of: ) /s/ ▇▇▇ ▇▇▇▇▇▇
--------------
Witness name: /s/ ▇▇▇▇▇▇ ▇▇▇▇
---------------
Witness address ▇▇▇▇▇ & Overy
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇
SIGNED as a deed by )
▇▇▇▇▇▇▇ PAGE )
INTERNATIONAL PLC )
acting by ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------
Director
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------
Director/Secretary
SIGNED as a deed by ▇▇▇ ▇▇▇▇▇▇
as a duly authorised officer of )
SPHERION CORPORATION )
acting under the authority of )
that company in the presence of: ) /s/ ▇▇▇ ▇▇▇▇▇▇
--------------
Witness name: /s/ ▇▇▇▇▇▇ ▇▇▇▇
---------------
Witness address ▇▇▇▇▇ & ▇▇▇▇▇
One New Change
London, EC4
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SIGNED as a deed by ▇▇▇ ▇▇▇▇▇▇▇▇ )
as duly authorised attorney for )
CREDIT SUISSE FIRST BOSTON )
(EUROPE) LIMITED )
in the presence of: ) /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
----------------
Name: /s/ ▇▇▇▇▇▇ ▇▇▇▇
---------------
Address: ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇
SIGNED as a deed by ▇▇▇ ▇▇▇▇▇▇▇▇ )
)
as duly authorised attorney for )
CREDIT SUISSE FIRST BOSTON )
EQUITIES LIMITED )
in the presence of: ) /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
----------------
Name: /s/ ▇▇▇▇▇▇ ▇▇▇▇
---------------
Address: ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇
SIGNED as a deed by )
as duly authorised attorney for )
▇▇▇▇▇▇▇ SACHS )
INTERNATIONAL )
in the presence of: ) /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
----------------
Name: /s/ ▇▇▇▇▇▇ ▇▇▇▇
---------------
Address: ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇
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SIGNED as a deed by )
as duly authorised attorney for )
DEUTSCHE BANK AG )
in the presence of: ) /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
----------------
Name: /s/ ▇▇▇▇▇▇ ▇▇▇▇
---------------
Address: ▇▇▇▇▇ & Overy
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇
SIGNED as a deed by )
as duly authorised attorney for )
SALOMON BROTHERS )
INTERNATIONAL )
LIMITED )
in the presence of: ) /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
----------------
Name: /s/ ▇▇▇▇▇▇ ▇▇▇▇
---------------
Address: ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇
SIGNED as a deed by )
as duly authorised attorney for )
HSBC BANK PLC )
in the presence of: ) /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
----------------
Name: /s/ ▇▇▇▇▇▇ ▇▇▇▇
---------------
Address: ▇▇▇▇▇ & Overy
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇
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SIGNED as a deed by )
as duly authorised attorney for )
WEST LB PANMURE LIMITED )
in the presence of: ) /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
----------------
Name: /s/ ▇▇▇▇▇▇ ▇▇▇▇
---------------
Address: ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇
52
