EXHIBIT 5
DEED OF UNDERTAKING
BETWEEN
VENDOR
AND
GE POWER SYSTEMS EQUITIES, INC.
XXXXXXXXX AND MAY
00 XXXXXXXXXX XXXXXX
XXXXXX XX0X 0XX
CWYU
THIS DEED is dated 17th August, 2000
BETWEEN:
(1) [NAME OF VENDOR] (the "Vendor") of [VENDOR ADDRESS]; and
(2) GE Power Systems Equities, Inc. (the "PURCHASER"), a Delaware corporation.
WHEREAS
(A) The Purchaser proposes to make the Offer to purchase the whole of the
share capital of the Company, issued and to be issued.
(B) The Vendor has agreed to accept the Offer in respect of the Committed
Shares.
(C) The Vendor has agreed to make certain payments to the Purchaser if the
Acquisition Agreement is terminated in certain circumstances and the Vendor
sells or otherwise disposes of the Committed Shares pursuant to an Acquisition
Proposal.
THE PARTIES AGREE THAT:
1. INTERPRETATION
1.1 DEFINITIONS
In this Deed, except where the context otherwise requires:
"ACQUISITION AGREEMENT" means the agreement of even date between Parent
and the Company relating to the Offer;
"ACQUISITION PROPOSAL" has the meaning given to it in the Acquisition
Agreement;
"BUSINESS DAY" means a day, other than a Saturday or Sunday, on which
banks are open for ordinary banking business in London;
"CITY CODE" means The City Code on Takeovers and Mergers;
"COMMITTED OPTIONS" means the options to subscribe Ordinary Shares of the
Company, particulars of which are set out in Part 2 of Schedule 1 and
includes the Ordinary Shares and/or American Depositary Shares of the
Company issued on exercise of such options and any Ordinary Shares and/or
American Depositary Shares of the Company attributable to or deriving from
such securities;
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"COMMITTED SHARES" means the Ordinary Shares and/or American Depositary
Shares of the Company particulars of which are set out in Part 1 of
Schedule 1 and shall include any Ordinary Shares and/or American
Depositary Shares of the Company attributable to or deriving from such
securities;
"COMPANY" means Smallworldwide plc, a public company registered in England
& Wales with registered number 2292791 and having its registered address
at Xxxxxxxxx House, 0 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxxx
XX0 0XX;
"CONNECTED PERSON" means in relation to the Vendor any person who would be
treated as connected with such Vendor pursuant to section 346 of the
Companies Xxx 0000 if such Vendor was a director of a company incorporate
under that Act;
"MAXIMUM ACCOUNTING AMOUNT" means $184,048;
"OFFER" means the proposed offer by the Purchaser for the shares of the
Company described in the Press Announcement;
"OFFER PRICE" means $20 per Ordinary Share or American Depositary Share of
the Company;
"PARENT" means General Electric Company;
"PRESS ANNOUNCEMENT" means the press announcement containing details of
the Offer which the Purchaser and the Company propose to release on the
date of this Deed, a draft of which is attached to this Deed;
"ROLL-OVER PROPOSAL" means the proposal to be made by the Purchaser to
holders of options to roll-over their options into options over shares
issued by the Parent, as described in more detail in Schedule 2;
"WARRANTIES" means the undertakings, representations, warranties,
confirmations and other obligations set out in Clause 4.
1.2 CONSTRUCTION
In this Deed where the context admits:-
(A) words and phrases the definitions of which are contained or referred
to in Part XXVI of the Companies Xxx 0000 shall be construed as
having the meanings so attributed to them;
(B) references to statutory provisions shall be construed as references
to those provisions as amended or re-enacted or as their application
is modified by other provisions from time to time and shall include
references to any provisions of which they are re-enactments
(whether with or without modification);
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(C) references to Clause(s), paragraph(s) and Schedule(s) are references
to Clause(s) and paragraphs of and Schedule(s) to this Deed and
references to this Deed include the Schedules; and
(D) references to a "person" include any individual, company, body
corporate, corporation sole or aggregate, government, state or
agency or a state, firm, partnership, joint venture, association,
organisation or trust (in each case, whether or not having separate
legal personality and irrespective of the jurisdiction in or under
the laws of which it was incorporated or exists) and a reference to
any of them shall include a reference to the others.
1.3 HEADINGS
The headings, sub-headings, and contents pages are inserted for
convenience only and shall not affect the construction of this Deed.
1.4 SCHEDULES
Each of the Schedules shall have effect as if set out in this Deed.
2. UNDERTAKING TO ACCEPT THE OFFER
2.1 The Vendor irrevocably agrees and undertakes to accept, or procure the
acceptance of, the Offer in respect of the Committed Shares.
2.2 The Vendor further irrevocably agrees and undertakes that he will procure
that such acceptance is not withdrawn notwithstanding that such withdrawal
may be permitted under the terms of the Offer.
2.3 The Vendor irrevocably and by way of security for his obligations
hereunder appoints the Purchaser and any director of the Purchaser to be
his attorney to sign, execute and deliver on his behalf forms of
acceptance and any other document required for a valid acceptance of the
Offer in respect of the Committed Shares and to do all acts and things in
his name as may be necessary for or incidental to such acceptance.
2.4 The Vendor irrevocably agrees and undertakes to accept the Roll-over
Proposal in respect of Committed Options with an Option Value representing
not less than 45 per cent of the aggregate Option Value of all of the
Committed Options, such acceptance to be made in respect of options which
will vest later before acceptance is made in respect of options vesting
sooner. For this purpose "Option Value" means in respect of an Option the
difference between the exercise price for such Option and $20.
3. SALE OF COMMITTED SHARES
3.1 If:
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(i) the circumstances described in Section 5.2(b)(i), (iii) or
(iv) of the Acquisition Agreement occur; and
(ii) prior to the first anniversary of the date of this Deed, the
Vendor and/or any Connected Person of the Vendor, directly or
indirectly, and whether by agreement or by operation of law,
sells, transfers, assigns, conveys or otherwise disposes of
the Committed Shares or the Committed Options or enters into
any other agreement or arrangement the financial effect of
which is substantially equivalent thereto or enters in to any
agreement to do any of the foregoing in each case with or to a
person who is a party to or has proposed to enter into an
Acquisition Proposal, or is acting jointly with or in concert
with such a person (such a person a "Competing Third Party"
and such a transaction a "Relevant Transaction"),
the Vendor covenants and agrees to pay to the Purchaser an amount
determined in accordance with Clauses 3.2 and 3.3 which shall be payable
in accordance with Clause 3.4.
3.2 The amount payable by the Vendor to the Purchaser pursuant to Clause 3.1
shall be the amount (the "Accounting Amount"), equal to the lower of (1)
the Maximum Accounting Amount and (2) the difference between (a) the
aggregate value of the consideration received, directly or indirectly, by
the Vendor for the Committed Shares and the Committed Options pursuant to
the Relevant Transaction less any amount of tax required to be paid by the
Vendor and/or the relevant Connected Person of the Vendor as a consequence
of the Relevant Transaction; and (b) the consideration which the Vendor
and/or the relevant Connected Person of the Vendor would have received for
the Committed Shares and the Committed Options under the Offer (the "Total
Consideration") less the amount of tax which the Vendor and/or the
relevant Connected Person of the Vendor would have been required to pay as
a consequence of receiving the Total Consideration pursuant to the Offer.
For the purpose of valuing the consideration received by the Vendor and/or
the relevant Connected Person of the Vendor for the Committed Options
pursuant to a Relevant Transaction or the Offer, as the case may be, the
consideration received will be deemed to be the consideration which would
have been received if the Committed Options had been exercised and the
consideration due pursuant to the Relevant Transaction or the Offer, as
the case may be, had been received for the Ordinary Shares and/or American
Depositary Shares issued on such exercise.
3.3 If the consideration received by the Vendor and/or the relevant Connected
Person of the Vendor pursuant to a Relevant Transaction (the "Competing
Third Party Consideration") includes any property other than cash, the
amount of aggregate consideration received by the Vendor shall be deemed
to be the sum of: (a) the fixed cash amount, if any, included in the
Competing Third Party Consideration; and (b) the fair market value of such
other property. If such other property includes securities listed on an
existing public trading market, the fair market value of such securities
shall be deemed to be equal to the average of the closing prices (or the
average of the closing bid and asked prices if closing prices are
unavailable) for such securities in their principal public trading market
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on the five trading days ending five days prior to the closing date of the
Relevant Transaction, as the case may be. If such Competing Third Party
Consideration includes property other than cash or securities listed on an
existing public trading market and agreement on the value of such other
property has not been reached, the Competing Third Party Consideration
shall be deemed to be the amount of any cash included in the Competing
Third Party Consideration PLUS the fair market value of such other
property as determined by a nationally recognised investment banking firm
agreed by the parties or, in the absence of such agreement, Xxxxxxx Xxxxx
Xxxxxx Xxxxxx Xxxxx. The parties shall use all reasonable efforts to cause
any determination of the fair market value of such other property to be
made within two Business Days after the closing date of the Relevant
Transaction.
3.4 The Vendor shall pay any sum owing to the Purchaser pursuant hereto within
five days of the receipt by the Vendor and/or the relevant Connected
Person of the Vendor of the Competing Third Party Consideration. Payment
of the cash portion of the Accounting Amount shall be made by wire
transfer of immediately available funds to a bank account designated by
the Purchaser. If non-cash consideration is received by the Vendor and/or
the relevant Connected Person of the Vendor as part of the Competing Third
Party Consideration, then the Vendor and/or the relevant Connected Person
of the Vendor shall transfer cash and non-cash consideration in payment of
the Accounting Amount in proportion to that received by the Vendor and/or
the relevant Connected Person of the Vendor as Competing Third Party
Consideration, except that the Vendor may, at its option, pay to the
Purchaser the cash equivalent of such non-cash consideration (as
determined under Clause 3.3 and with the timing and method of payment set
out above). The Vendor shall transfer to the Purchaser good and valid
title to such non-cash consideration to be transferred hereunder, free and
clear of any and all encumbrances, within five days of receipt by the
Vendor and/or the relevant Connected Person of the Vendor of the Competing
Third Party Consideration.
4. UNDERTAKINGS, REPRESENTATIONS, WARRANTIES AND CONFIRMATIONS
4.1 VENDOR OBLIGATIONS
The Vendor hereby irrevocably undertakes, represents and warrants to the
Purchaser as follows:
(A) he is, and/or the relevant Connected Person of the Vendor the
beneficial owner and the registered holder of the Committed Shares
and the Committed Options and the Committed Shares and the Committed
Options are free from all encumbrances, liens and charges. Other
than the Committed Shares and the Committed Options there are no
shares in the Company registered in the Vendor's name (or in the
name of any of its Connected Persons) or beneficially owned, or
managed and controlled, by the Vendor (or any of its Connected
Persons) or in which the Vendor (or any of its Connected Persons)
has an interest and neither the Vendor nor any of its Connected
Persons has any rights, warrants or options to acquire or subscribe
for shares in the Company;
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(B) unless and until the Offer shall have closed, lapsed or shall have
been withdrawn, save as referred to in this Deed or by way of
acceptance of the Offer, the Vendor shall not, and shall procure
that its connected Persons shall not otherwise than pursuant to the
Offer, sell or otherwise dispose of or permit the sale or other
disposition of all or any of the Committed Shares or the Committed
Options or any interest in any of the Committed Shares or the
Committed Options;
(C) unless and until the Offer shall have closed, lapsed or shall have
been withdrawn, save pursuant to this Deed, neither the Vendor nor
any Connected Person of the Vendor has not agreed, conditionally or
otherwise, to dispose of all or any of the Committed Shares or the
Committed Options or any interest therein;
(D) the Vendor shall not (and shall procure that its Connected Persons
do not), without the prior written consent of the Purchaser,
purchase or otherwise acquire any shares in the Company or any
interest therein or agree to do so;
(E) the Vendor shall procure that, unless and until the Offer shall have
closed, lapsed or shall have been withdrawn, no other agreement or
arrangements (including any undertaking) shall be entered into
(other than with the Purchaser) which could result in the disposal
of, or the creation or existence of any encumbrance, lien or charge
over on, all or any of the Committed Shares or the Committed Options
or any interest therein or which might in any way restrict the
disposal of the Committed Shares or the Committed Options or any of
them and no other offer shall be accepted in respect of the
Committed Shares or the Committed Options or any of them; and
(F) at all times after the date hereof and until the Offer shall have
closed, lapsed or been withdrawn, the Vendor shall comply with the
requirements of Section 4.8 of the Acquisition Agreement applicable
to a Representative of the Company (as defined in the Acquisition
Agreement).
4.2 BINDING OBLIGATIONS
Each party warrants and represents to the other that it has full power and
authority to enter into and perform its obligations under this Deed in
accordance with the terms of this Deed and that the obligations imposed on
it hereunder constitute legal, valid and binding obligations of it,
enforceable against it, subject as to enforcement to laws of general
applicability including those relating to or affecting creditors' rights
and to general principles of equity and public policy rules and
regulations.
4.3 The Vendor agrees that its Connected Persons named in Schedule 1 will be
bound by the obligations, representatives and warranties on the part of
the Vendor and the Vendor will procure compliance by such Connected
Persons therewith.
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5. CONFIDENTIALITY
5.1 RESTRICTION
Subject to Clause 5.2 below, the Vendor shall not make any announcement or
public disclosure concerning this Deed or its subject matter without the
prior written approval of the Purchaser and the Vendor will maintain
appropriate secrecy about the possibility, and terms of, the Offer.
5.2 DISCLOSURE
The Vendor irrevocably consents to the issue of any Offer Document (and
any related press announcement required by Rule 2.5 of the City Code)
incorporating references to the Vendor and to the provisions of this Deed.
The Vendor acknowledges that this Deed may be made available for public
inspection.
5.3 PERSISTENCE OF RESTRICTIONS
The restrictions contained in this Clause 5 shall survive completion and
the termination of this Deed.
6. PROVISIONS RELATING TO THIS DEED
6.1 NO ASSIGNMENT
This Deed shall be binding upon and inure for the benefit of the
successors of the parties but shall not be assignable or transferable.
6.2 INVALIDITY
If any provision of this Deed shall be held to be illegal, void, invalid
or unenforceable under the laws of any jurisdiction, the legality,
validity and enforceability of the remainder of this Deed in that
jurisdiction shall not be affected, and the legality, validity and
enforceability of the whole of this Deed shall not be effected in any
other jurisdiction.
6.3 TIME OF THE ESSENCE
Time shall be of the essence.
6.4 ENTIRE AGREEMENT
(A) This Deed, together with any documents referred to in it,
constitutes the whole agreement between the parties relating to its
subject matter and supersedes and extinguishes any prior drafts,
agreements, undertakings, representations, warranties, assurances
and arrangements of any nature, whether in writing or oral, relating
to such subject matter.
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(B) Each party acknowledges that it has not been induced or enter into
this Deed by, and that it does not in connection with this Deed or
its subject matter rely on, any representation, warranty, promise or
assurance by the other party or any other person other than those
contained in this Deed and, having negotiated and freely entered
into this Deed, agree that it shall have no remedy in respect of any
other such representation, warranty, promise or assurance except in
the case of fraud. (C) No variation of this Deed shall be effective
unless made in writing.
6.5 COUNTERPARTS
This Deed may be executed in any number of counterparts including
facsimile copies, which shall together constitute one Deed. Any party may
enter into this Deed by signing any such counterpart. This Deed shall be
of no legal effect until it has been executed by or on behalf of both
parties.
6.6 NOTICES
(A) Any notice (which term shall include any other communication)
required to be given under this Deed or in connection with the
matters contemplated by it shall be in writing in English language.
(B) Any such notice shall be addressed as provided in Clause 6.7(C) and
may be:-
(i) personally delivered, in which case it shall be deemed to have
been given upon delivery at the relevant address; or
(ii) if within the United Kingdom, sent by first class pre-paid
post, in which case it shall be deemed to have been given two
Business Days after the date of posting; or
(iii) if from or to any place outside the United Kingdom, sent by
pre-paid priority airmail, in which case it shall be deemed to
have been given seven Business Days after the date of posting;
or
(iv) sent by facsimile, in which case it shall be deemed to have
been given when despatched subject to confirmation of
uninterrupted transmission by a transmission report provided
that any notice despatched by facsimile after 17.00 hours on
any day shall be deemed to have been received at 09.00 on the
next Business Day.
(C) The addresses and other details of the parties referred to in Clause
6.7(B) are, subject to Clause 6.7(D):-
The Vendor
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Address: [INSERT ADDRESS]
Facsimile number:
The Purchaser
For the attention of: General Manager, GE Energy Management
Systems
Address: 0000 Xxxxxxxx Xxxx
Xxxxxxx
XX 00000
Facsimile number: x0 000 000 0000
With a copy to: General Electric Company
GE Power Systems
0000 Xxxxxxxx Xxxx
Xxxxxxx
XX 00000
Facsimile number: x0 000 000 0000
For the attention of: General Counsel
and
C.W.Y.Xxxxxxxxx
Xxxxxxxxx and May
00 Xxxxxxxxxx Xxxxxx,
Xxxxxx XX0X 0XX
Facsimile number: x00 00 0000 0000
(D) Any party to this Deed may notify the other parties of any change to
the address or any of the other details specified in Clause 6.7(C),
provided that such notification shall only be effective on the date
specified, in such notice or five Business Days after the notice is
given, whichever is later.
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6.7 ENGLISH LAW
This Deed shall be governed by, and construed in accordance with, English
law and the English courts shall have exclusive jurisdiction to determine
all disputes in relation to it. The Vendor agrees that if it defaults in
its obligations hereunder damages alone would not be an adequate remedy
and an order for specific and no proof of special damages shall be
necessary for the enforcement of its obligations hereunder.
6.8 PROCESS AGENT
The Vendor appoints the Company at its registered office as its process
agent to receive on its behalf service of process in any proceedings in
England. Service upon the process agent shall be good service upon the
Vendor whether or not it is forwarded to and received by the Vendor. If
for any reason the process agent ceases to be able to act as process
agent, or no longer has an address in England, the Vendor irrevocably
agrees to appoint a substitute process agent with an address in England
acceptable to the Purchaser and to deliver to the Purchaser a copy of the
substitute process agent's acceptance of that appointment within 20
Business Days. In the event that the Vendor fails to appoint a substitute
process agent, it shall be effective service for the Purchaser to serve
the process upon the last known address in England of the last known
process agent for the Vendor notified to the Purchaser, notwithstanding
that such process agent is not longer found at such address or has ceased
to act.
6.9 NO OFFER
This Deed does not and will not constitute an offer, undertaking or
commitment of any kind by the Purchaser to purchase all or any of the
Committed Shares.
7. COSTS
Each party shall pay its own costs of and incidental to this Deed and any
resultant sale or purchase of Committed Shares or Committed Options and,
for the avoidance of doubt, any stamp duty or stamp duty reserve tax
payable in connection therewith shall be payable by the Purchaser.
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IN WITNESS whereof this document has been executed and delivered as a deed on
the date first before written.
SIGNED AS A DEED )
BY [VENDOR] )
in the presence of:
SIGNED AS A DEED )
BY GE Power Systems Equities, Inc.)
in the presence of:
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SCHEDULE 1
PART 1
THE COMMITTED SHARES
NUMBER, CLASS AND DENOMINATION NAME AND NAME AND ADDRESS OF
ADDRESS OF BENEFICIAL OWNER
REGISTERED
OWNER
PART 2
THE COMMITTED OPTIONS
NUMBER OF OPTIONS DATE OF GRANT NAME AND NAME AND ADDRESS OF
ADDRESS OF BENEFICIAL OWNER
REGISTERED
OWNER
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SCHEDULE 2
ROLL-OVER PROPOSAL
Under the Roll-over Proposal, employees and directors of the Company and its
subsidiaries who are holders ("Company Optionholders") of options ("Company
Options") over Ordinary Shares and/or American Depositary Shares (collectively,
"Shares") will be entitled to have options over shares in General Electric
Company ("GE Options") issued to them in substitution for, at the relevant
Company Optionholders' discretion, some or all of their existing Options
("Rolled-over Options"). Such GE Options will be granted on the same terms and
conditions as those applying to the Rolled-over Options. GE Options will be
granted in respect of a number of shares of common stock of General Electric
Company equal to the number of Shares the subject of the Rolled-over Options
multiplied by the Roll-over Adjustment Ratio. The exercise price per share of
common stock of General Electric Company subject to each GE Option will be the
exercise price per Share the subject of the Rolled-over Option divided by the
Roll-over Adjustment Ratio. "Roll-over Adjustment Ratio" means the amount
produced by dividing 20 by the average of the daily high and low trading prices
on the New York Stock Exchange of the common stock of General Electric Company
on each of the five successive trading days ending on the day prior to the
Purchase Date (as defined in the Acquisition Agreement).
Company Optionholders accepting the Roll-over Proposal will be paid a bonus cash
payment (the "Roll-over Bonus") equal to 10 per cent. of the value of the
Rolled-over Options (i.e. 10 per cent. of the product of the Offer Price less
the exercise price multiplied by the number of Shares the subject of the
Rolled-over Options); one half of the Roll-over Bonus will be payable 90 days
after acceptance by the relevant Company Optionholder of the Roll-over Proposal,
with the balance being payable 270 days after acceptance by the relevant Company
Optionholder of the Roll-over Proposal, conditional, in each case (except for
non-executive directors), on the relevant Company Optionholder not then having
terminated his employment.
GE Options granted pursuant to the Rollover Proposal in respect of Company
Options granted subject to a condition that the share price of Company Shares is
not less than $24 will vest in three equal tranches, on the first, second and
third anniversaries of the date of grant.
