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Exhibit 2.3
DATED 28TH MARCH, 2001
SPHERION (EUROPE) INC.
AND
CREDIT SUISSE FIRST BOSTON EQUITIES LIMITED
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STOCK LENDING AGREEMENT
IN RESPECT OF SECURITIES IN XXXXXXX PAGE INTERNATIONAL PLC
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XXXXX & OVERY
London
CO:817136.2
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CONTENTS
CLAUSE PAGE
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1. Interpretation......................................................................................1
2. Loans of Securities.................................................................................4
3. Delivery of Securities..............................................................................4
4. Rights and Title....................................................................................5
5. Redelivery of Equivalent Securities.................................................................5
6. Set-off etc.........................................................................................6
7. Lender's Warranties.................................................................................7
8. Borrower's Warranties and Undertaking...............................................................7
9. Events of Default...................................................................................8
10. Outstanding Payments................................................................................9
11. Termination.........................................................................................9
12. Observance of Procedures............................................................................9
13. Severance...........................................................................................9
14. Specific Performance................................................................................9
15. Notices............................................................................................10
16. Assignment.........................................................................................10
17. Non-Waiver.........................................................................................10
18. Time...............................................................................................10
19. Recording..........................................................................................10
20. Fees...............................................................................................10
21. Governing Law and Jurisdiction.....................................................................11
22. Miscellaneous......................................................................................11
SCHEDULES
1. The Lender.........................................................................................12
2. Form of Borrowing Request..........................................................................13
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THIS AGREEMENT is made on 28th March, 2001
BETWEEN:
(1) SPHERION (EUROPE) INC. whose principal place of business is at 0000
Xxxxxxxx Xxxxxxxxx, Xxxx Xxxxxxxxxx, XX 00000 (the "LENDER"); and
(2) CREDIT SUISSE FIRST BOSTON EQUITIES LIMITED of 0 Xxxxx Xxxxxx, Xxxxxx
X00 0XX (the "BORROWER").
WHEREAS:
(A) The Parties to this agreement may enter into one or more transactions
in which the Lender will lend Securities (as defined below) to the
Borrower. Any such transaction carried out under this agreement (a
"LOAN") will be effected in accordance with the Rules (as defined
below) and will not take effect before Admission.
(B) Under the Rules, the London Stock Exchange continues to recognise the
Master Equity and Fixed Interest Stock Lending Agreement (the "STANDARD
AGREEMENT") for transactions relating to UK equity securities and the
Parties have agreed to amend the Standard Agreement for the purposes of
any Loan contemplated by this agreement.
(C) Prior to Admission, the Lender may transfer Securities to the Borrower
which the Borrower will hold as trustee on bare trust for the Lender.
Upon or after Admission, the Borrower may apply those Securities to
give effect to a Loan entered into pursuant to this agreement by
serving a Borrowing Request in respect of them.
IT IS HEREBY AGREED as follows:
1. INTERPRETATION
(1) IN THIS AGREEMENT:
"ACT OF INSOLVENCY" means in relation to any Party:
(a) its making a general assignment for the benefit of, or
entering into a reorganisation, arrangement, or composition
with, creditors; or
(b) its admitting in writing that it is unable to pay its debts
as they become due; or
(c) its seeking, consenting to or acquiescing in the appointment
of any trustee, administrator, receiver or liquidator or
analogous officer of it or any material part of its property;
or
(d) the presentation or filing of a petition in respect of it
(other than by a Party to this agreement in respect of any
obligation under this agreement) in any court or before any
agency alleging or for the bankruptcy, winding-up or
insolvency of such Party (or any analogous proceeding) or
seeking any reorganisation, arrangement, composition,
re-adjustment, administration, liquidation, dissolution or
similar relief under any present or future statute, law or
regulation, such petition (except in the case of a petition
for winding-up, or any analogous proceeding, in respect of
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which no such 30 day period shall apply) not having been
stayed or dismissed within 30 days of its filing; or
(e) the appointment of a receiver, administrator, liquidator or
trustee or analogous officer of such Party or over all or any
material part of such Party's property; or
(f) the convening of any meeting of its creditors for the purposes
of considering a voluntary arrangement as referred to in
Section 3 of the Insolvency Act 1986 (or any analogous
proceeding);
"ADMISSION" means the admission of the Securities to the Official List
of the UK Listing Authority and to trading on the market for listed
securities of the London Stock Exchange;
"BORROWING REQUEST" means in relation to a loan of Securities, a
request made by the Borrower to the Lender pursuant to clause 2 (either
by telephone communication or in writing, in each case in accordance
with clause 15) and giving the information referred to in the form set
out in Schedule 2;
"BUSINESS DAY" means a day on which the London Stock Exchange is open
for business, banks are generally open for normal banking business in
the City of London and upon which CREST is open for settlement;
"CLOSE OF BUSINESS" in relation to any Business Day means 6.00 p.m.
(London time) on that Business Day;
"CREST" means the computer based system, and procedures, operated by
CRESTCo Limited which enables title to units of a security to be
evidenced and transferred without a written instrument;
"DEFAULTING PARTY" shall have the meaning given in clause 9;
"DEFAULT PRICE" means the best available offer price for the Securities
on the most appropriate market in a standard size;
"DEFAULT VALUATION TIME" shall have the meaning given in clause 6(4);
"EQUIVALENT SECURITIES" means (a) securities of an identical type,
nominal value, description and amount to the particular Securities
borrowed or, (b) if, prior to the Termination Date, the particular
Securities borrowed are redesignated as securities of a different type
(the "REDESIGNATED SECURITIES"), an amount of the redesignated
securities which is identical to the amount of the particular
Securities borrowed, and such term shall include the certificates and
other documents of or evidencing title and transfer in respect of the
foregoing (as appropriate) and "EQUIVALENT TO" shall be construed
accordingly;
"EVENT OF DEFAULT" shall have the meaning given in clause 9;
"LISTING RULES" means the publication entitled "Listing Rules" which
includes the listing rules made by the UK Listing Authority for the
purposes of Part IV of the Financial Services Xxx 0000, as from time to
time amended and, where appropriate, the publication entitled
"Admission and Disclosure Standards" made by the Stock Exchange, as
from time to time amended;
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"LONDON STOCK EXCHANGE" means London Stock Exchange plc;
"LPMPA" means the Law of Property (Miscellaneous Provisions) Xxx 0000;
"NON-DEFAULTING PARTY" shall have the meaning given in clause 9;
"OFFER PRICE" means 175 xxxxx per Share;
"OFFER VALUE" means the amount it would cost to buy the Securities at
the Default Valuation Time at the Default Price therefor together with
all costs, fees, expenses that would be incurred in connection
therewith, calculated on the assumption that the aggregate thereof is
the least that could reasonably be expected to be paid in order to
carry out the transaction;
"PARTIES" means the Lender and the Borrower and "PARTY" shall be
construed accordingly;
"PERFORMANCE DATE" means, in relation to any Event of Default, the date
on which that Event of Default occurs;
"RELEVANT VALUE" shall have the meaning given in clause 6(3);
"RULES" means the rules for the time being of the Stock Exchange and/or
any other regulatory authority whose rules and regulations shall from
time to time affect the activities of the Parties pursuant to this
agreement (PROVIDED THAT in an Event of Default the rules of the Stock
Exchange shall prevail where the Defaulting Party is a member of that
exchange);
"SECURITIES" means ordinary shares of one xxxxx each of Xxxxxxx Page
International PLC;
"SETTLEMENT DATE" means, in relation to a loan of Securities, the date
upon which such Securities are or are to be transferred to the Borrower
in accordance with this agreement provided that such date shall not be
earlier than (a) where the Borrowing Request is received by the Lender
at or before 2.00 pm on a Business Day, the first Business Day after
receipt by the Lender of the Borrowing Request or (b) where the
Borrowing Request is not received by the Lender until after 2.00 pm on
a Business Day, the second Business Day after receipt by the Lender of
the Borrowing Request;
"STOCK BORROWING RATE" means 0.75 per cent. per annum or such other
rate as is agreed between the Borrower and the Lender from time to
time;
"TERMINATION DATE" means the earlier of (a) Close of Business on the
fifth Business Day after the date 30 days after the date on which
Admission becomes effective, and (b) such date as the Borrower may
notify to the Lender;
"UK LISTING AUTHORITY" means the Financial Services Authority, acting
in its capacity as the competent authority for the purposes of Part IV
of the Financial Services Xxx 0000 and in the exercise of its functions
in respect of admission to the Official List in accordance with the
Listing Rules; and
"UNDERWRITING AGREEMENT" means the agreement dated 28th March 2001
between the Borrower, Lender and others in relation to the offer of
Securities in Xxxxxxx Page International PLC.
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(2) All headings appear for convenience only and shall not affect the
interpretation of this agreement.
(3) Notwithstanding the use of expressions such as "borrow", "lend",
"redeliver" etc. which are used to reflect terminology used in the
market for transactions of the kind provided for in this agreement,
legal and beneficial title to Securities "borrowed" or "lent" in
accordance with this agreement shall pass from one Party to another as
provided for in this agreement, the Party obtaining such title being
obliged to redeliver Equivalent Securities.
(4) Each reference in this agreement to any Security (or Equivalent
Security) being sold, delivered, redelivered, transferred, borrowed or
lent etc. "WITH FULL TITLE GUARANTEE" means:
(a) on the terms that the same covenants shall be deemed to be
given on the completion of the sale, delivery or transfer etc.
of the Securities (or Equivalent Securities) as are implied by
Part I of the LPMPA where a disposition is expressed to be
made with full title guarantee, but as if those covenants are
construed with the omission of:
(i) in section 3(1) of the LPMPA, the words "other than
any charges, encumbrances or rights which that person
does not and could not reasonably be expected to know
about"; and
(ii) section 6(2) of the LPMPA;
(b) together with all dividends, distributions and other rights
attaching to it; and
(c) free of all liens, charges and encumbrances.
(5) Any reference in this agreement to an act, regulation or other
legislation shall include a reference to any statutory modification or
re-enactment thereof for the time being in force.
2. LOANS OF SECURITIES
The Lender will lend Securities to the Borrower, and the Borrower will
borrow Securities from the Lender on one or more occasions, subject to
clause 4(2) and otherwise in accordance with the terms and conditions
of this agreement and with the Rules, provided that the Lender shall
have received from the Borrower a Borrowing Request in respect of such
Loan (by not later than the day 29 days after the date on which
Admission becomes effective) and provided further that the aggregate
number of Securities which are the subject of Borrowing Requests shall
not exceed the number set opposite the Lender's name in Schedule 1.
3. DELIVERY OF SECURITIES
(1) If the Securities are eligible for settlement within CREST the Lender
shall deliver or procure the delivery of such Securities on the
Settlement Date to the Borrower in accordance with the Borrowing
Request. Such Securities shall be deemed to have been delivered by the
Lender to the Borrower when credited to the CREST account designated by
the Borrower in the Borrowing Request.
(2) If the Securities are not eligible for settlement within CREST the
Lender shall deliver on the Settlement Date such Securities in
accordance with the Borrowing Request together with appropriate
instruments of transfer duly stamped where necessary and such other
instruments as may be required to vest title to such Securities in the
Borrower. Such Securities shall be
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deemed to have been delivered by the Lender to the Borrower on delivery
to the Borrower, or as it shall direct, of the relevant instruments of
transfer or, in the case of Securities held by an agent or a clearing
or settlement system, on the effective instructions to such agent or
the operator of such system to hold the Securities absolutely for the
Borrower, or by such other means as shall be agreed.
(3) In the event that the Lender transfers Securities to the Borrower prior
to Admission in accordance with clause 4(2), the Lender shall, on
service of a Borrowing Request in respect of such Securities after
Admission, immediately undertake such steps and sign such documents as
are necessary to vest the Securities in the Borrower absolutely in
accordance with clause 4(2).
4. RIGHTS AND TITLE
(1) The Parties shall execute and deliver all necessary documents and give
all necessary instructions to procure that all right, title and
interest in:
(a) any Securities borrowed pursuant to clause 2; and
(b) any Equivalent Securities redelivered pursuant to clause 5,
shall pass from one Party to the other subject always to clause 4(2)
and to the terms and conditions mentioned in this agreement and in
accordance with the Rules on delivery or redelivery of the same in
accordance with this agreement, and with full title guarantee. If the
Securities are transferred through CREST, delivery and transfer of
title shall take place in accordance with the rules and procedures of
CREST as are in force from time to time. The Party acquiring such
right, title and interest shall have no obligation to return or
redeliver any of the Securities so acquired but, in so far as any
Securities are borrowed, such Party shall be obliged, subject to the
terms of this agreement, to redeliver Equivalent Securities.
(2) The Parties agree that any Loan entered into pursuant to the terms of
this agreement will only take effect on or after Admission. If the
Lender transfers any Securities to the Borrower before Admission, the
Borrower shall hold those Securities as trustee on bare trust for the
Lender. Upon Admission, the Borrower may apply such Securities to give
effect to a Loan and will cease to hold any such Securities so
transferred on such trusts and all right, title and interest in the
Securities will pass to the Borrower absolutely. The Borrower shall not
dispose of the Securities to any third party until such right, title
and interest has so passed. If Admission does not occur by 3rd April,
2001 the bare trust shall terminate and the Borrower shall transfer the
Securities back to the Lender.
5. REDELIVERY OF EQUIVALENT SECURITIES
(1) Subject to clause 5(2) below the Borrower undertakes to redeliver
Equivalent Securities on the Termination Date in accordance with this
agreement. For the avoidance of doubt any reference in this agreement
or in any other agreement or communication between the Parties
(howsoever expressed) to an obligation to redeliver or account for or
act in relation to borrowed Securities shall accordingly be construed
as a reference to an obligation to redeliver or account for or act in
relation to Equivalent Securities.
(2) The Borrower shall be entitled at any time to terminate all or part of
a Loan and to redeliver all or any Equivalent Securities due and
outstanding to the Lender and the Lender shall accept such redelivery.
Where Equivalent Securities are redelivered pursuant to this clause,
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the Borrower may at its discretion specify that the aggregate amount of
Securities which may be the subject of Borrowing Requests pursuant to
clause 2 shall reduce by the number of Equivalent Securities
redelivered or such lesser number as is specified by the Borrower.
6. SET-OFF ETC.
(1) If an Event of Default occurs in relation to the Lender during the
period beginning on (and including) the date on which a Borrowing
Request is issued and ending on (and including) the Settlement Date for
that Borrowing Request, the Lender's delivery obligations shall be
accelerated so as to require performance thereof on the Performance
Date and in such event:
(a) all Securities to be delivered by the Lender shall immediately
be delivered;
(b) if such Securities are not delivered by Close of Business on
the Performance Date:
(i) the Relevant Value of all Securities to be delivered
by the Lender shall be established in accordance
with clause 6(3); and
(ii) the Lender shall on the Business Day following the
Performance Date pay to the Borrower an amount equal
to the Relevant Value of all Securities to be
delivered by the Lender provided that the Borrower
shall repay to the Lender on or as soon as
practicable after the Termination Date such part of
such amount as is not used by the Borrower or its
nominees/agents for Stabilisation Transactions (as
defined in the Underwriting Agreement).
(2) If an Event of Default occurs in relation to the Borrower during the
period beginning on (and including) the Settlement Date for any
Borrowing Request and ending on (and including) the Termination Date,
the Borrower's delivery obligations in respect of the Equivalent
Securities shall be accelerated so as to require performance of such
obligations on the Performance Date and in such event:
(a) all Equivalent Securities to be delivered by the Borrower
shall immediately be delivered;
(b) if such Equivalent Securities are not delivered by Close of
Business on the Performance Date:
(i) the Relevant Value of the Equivalent Securities to be
delivered by the Borrower shall be established in
accordance with clause 6(3); and
(ii) the Borrower shall on the Business Day following the
Performance Date pay to the Lender an amount equal to
the Relevant Value of the Equivalent Securities to be
delivered by the Borrower.
(3) For the purposes of clauses 6(1) and 6(2) the "RELEVANT VALUE" of the
Securities or Equivalent Securities to be delivered by the Defaulting
Party shall, subject to clause 6(5) below, equal the Offer Value of
such shares or securities.
(4) For the purposes of clause 6(3) but subject to clause 6(5) below, the
Offer Value of the Securities or Equivalent Securities shall be
calculated as at the Close of Business in the relevant market for such
securities on the first Business Day following the Performance Date or,
if the relevant Event of Default occurs outside the business hours of
the relevant market,
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on the second Business Day following the Performance Date (the "DEFAULT
VALUATION TIME").
(5) (a) Where the Borrower (in the case of an Event of Default in
relation to the Lender) or the Lender (in the case of an Event
of Default in relation to the Borrower) has, following the
occurrence of an Event of Default but prior to the Default
Valuation Time purchased securities equivalent to the
Securities and in substantially the same amount as those
Securities, the cost of such purchase (taking into account all
costs, fees and expenses incurred in connection therewith)
shall be treated as the Offer Value of the Securities for the
purposes of this clause 6; and
(b) where the amount of any Securities purchased as mentioned in
clause 6(5)(a) above is not in substantially the same amount
as those Securities to be valued for the purposes of clause
6(3) the Offer Value of those Securities shall be ascertained
by dividing the net proceeds of sale or cost of purchase by
the amount of the Securities purchased so as to obtain a net
unit price and multiplying that net unit price by the amount
of the Securities to be valued.
(6) The Defaulting Party shall be liable to the Non-Defaulting Party for
the amount of all reasonable legal and other professional expenses
incurred by the Non-Defaulting Party in connection with or as a
consequence of an Event of Default, together with interest thereon at
the one-month London Inter Bank Offered Rate as quoted on Page 3750 on
the Telerate Service (or such other page as may replace page 3750 on
that service) (LIBOR) as of 11.00 a.m., London time, on the date on
which it is to be determined.
7. LENDER'S WARRANTIES
(1) The Lender hereby warrants and undertakes to the Borrower on a
continuing basis to the intent that such warranties and undertakings
shall survive the completion of any transaction contemplated by this
agreement that:
(a) it has all necessary licences and approvals to and is duly
authorised and empowered to perform its duties and obligations
under this agreement and will do nothing that it is aware
would be prejudicial to the continuation of such licences and
approvals;
(b) it is not restricted in any manner from lending Securities in
accordance with this agreement or from otherwise performing
its obligations under this agreement;
(c) it is absolutely entitled to lend all Securities Lender under
this agreement to the Borrower with full title guarantee free
from all liens, charges and encumbrances; and
(d) it is acting as principal in respect of this agreement.
8. BORROWER'S WARRANTIES AND UNDERTAKING
(1) The Borrower hereby warrants and undertakes to the Lender on a
continuing basis to the intent that such warranties and undertakings
shall survive the completion of any transaction contemplated by this
agreement that:
(a) it has all necessary licences and approvals to, and is duly
authorised and empowered to, perform its duties and
obligations under this agreement and will do nothing that it
is aware would be prejudicial to the continuation of such
licences and approvals;
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(b) it is not restricted under the terms of its constitution or in
any other manner from borrowing Securities in accordance with
this agreement or from otherwise performing its obligations
under this agreement;
(c) it is absolutely entitled to transfer all Equivalent
Securities under this agreement to the Lender with full title
guarantee free from all liens, charges and encumbrances; and
(d) it is acting as principal in respect of this agreement.
(2) The Borrower undertakes to use reasonable endeavours to ensure that the
arrangements contemplated by this agreement will fall within either
section 80C or section 89AA of the Finance Xxx 0000, provided that the
Lender shall be responsible for all stamp duty and/or stamp duty
reserve tax payable in connection with any transfer of (or agreement to
transfer) Securities or Equivalent Securities under this agreement.
9. EVENTS OF DEFAULT
(1) Each of the following events occurring in relation to any Party (the
"DEFAULTING PARTY", and where the Borrower (in the case of an Event of
Default in relation to the Lender) or, as the case may be, the Lender
(in the case of an Event of Default in relation to the Borrower) being
the "NON-DEFAULTING Party") shall be an Event of Default for the
purpose of clause 6:
(a) the Lender failing to deliver the Securities on the Settlement
Date in accordance with the terms of the Borrowing Request and
the Non-Defaulting Party serving written notice on the
Defaulting Party;
(b) the Borrower failing to redeliver Equivalent Securities on the
Termination Date in accordance with the terms of the Borrowing
Request and the Non-Defaulting Party serving written notice on
the Defaulting Party;
(c) an Act of Insolvency occurring with respect to the Lender or
the Borrower and (except in the case of an Act of Insolvency
which is the presentation of a petition for winding up or any
analogous proceeding or the appointment of a liquidator or
analogous officer of the Defaulting Party in which case no
such notice shall be required) the Non-Defaulting Party
serving written notice on the Defaulting Party;
(d) any representations or warranties made by the Lender or the
Borrower being incorrect or untrue in any material respect
when made or repeated or deemed to have been made or repeated,
and the Non-Defaulting Party serving written notice on the
Defaulting Party;
(e) the Lender or the Borrower admitting to the other that it is
unable to, or it intends not to, perform any of its
obligations under this agreement and/or in respect of any Loan
and the Non-Defaulting Party serving written notice on the
Defaulting Party;
(f) the Borrower being declared in default by the appropriate
authority under the Rules or being suspended or expelled from
membership of or participation in any securities exchange or
association or other self-regulatory organisation, or
suspended from dealing in securities by any government agency
and the Non-Defaulting Party serving written notice on the
Defaulting Party;
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(g) any of the assets of the Lender or the Borrower or the assets
of investors held by or to the order of the Lender or the
Borrower being transferred or ordered to be transferred to a
trustee by a regulatory authority pursuant to any securities
regulating legislation and the Non-Defaulting Party serving
written notice on the Defaulting Party; or
(h) the Lender or the Borrower failing to perform any other of its
obligations under this agreement and not remedying such
failure within [2] days after the Non-Defaulting Party has
served written notice requiring it to remedy such failure.
(2) Each Party shall notify the other (in writing) if an Event of Default
or an event which, upon the serving of a written notice as referred to
above, would be an Event of Default, occurs in relation to it.
(3) The provisions of this agreement constitute a complete statement of the
remedies available to each Party in respect of any Event of Default.
(4) Neither Party may claim any sum by way of consequential loss or damage
in the event of failure by the other party to perform any of its
obligations under this agreement.
10. OUTSTANDING PAYMENTS
In the event of any Party failing to remit either directly or by its
nominee sums in accordance with this agreement such Party undertakes to
pay to the other Party upon demand interest on the net balance due and
outstanding at the rate of 1 per cent. above LIBOR.
11. TERMINATION
(1) Subject to clause 11(2), this agreement shall terminate at Close of
Business on the Termination Date upon each Party satisfying its
then-outstanding obligations under this agreement.
(2) If the Borrower has not issued a Borrowing Request by Close of Business
on the day 30 days after the date on which Admission becomes effective,
this agreement shall terminate automatically at that time.
12. OBSERVANCE OF PROCEDURES
Each of the Parties agrees that in taking any action that may be
required in accordance with this agreement it shall observe strictly
the procedures and timetable applied by the Rules and, further, shall
observe strictly any agreement (oral or otherwise) as to the time for
delivery or redelivery of any money or Securities or Equivalent
Securities pursuant to this agreement.
13. SEVERANCE
If any provision of this agreement is declared by any judicial or other
competent authority to be void or otherwise unenforceable, that
provision shall be severed from this agreement and the remaining
provisions of this agreement shall remain in full force and effect.
This agreement shall, however, thereafter be amended by the Parties in
such reasonable manner so as to achieve, without illegality, the
intention of the Parties with respect to that severed provision.
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14. SPECIFIC PERFORMANCE
Each Party agrees that in relation to legal proceedings it will not
seek specific performance of any other Party's obligation to deliver or
redeliver Securities or Equivalent Securities but without prejudice to
any other rights it may have.
15. NOTICES
(1) All notices issued under this agreement (other than Borrowing Requests
made by telephone) shall be in writing (and shall include facsimile
messages) and shall be deemed validly delivered:
(a) in the case of a notice delivered to the Lender, if marked for
the attention of General Counsel and left at the relevant
address or sent to the relevant facsimile number as specified
in Schedule 1; or
(b) in the case of a notice delivered to the Borrower, if marked
for the attention of Xxxx Xxxxxxxxx and Xxx Xxxxxxxx and left
at the address specified at the beginning of this agreement or
sent to facsimile numbers 020 7888 6142 and 020 7943 2452,
or such other addresses or facsimile numbers as each Party may notify
in writing to the other.
(2) In the case of telephone Borrowing Requests, the information referred
to in the form set out in Schedule 2 shall be communicated by telephone
(and confirmed by facsimile) to the Lender (telephone ).
16. ASSIGNMENT
(1) Subject to clause 16(2) below, no Party may charge, assign or transfer
all or any of its rights or obligations hereunder without the prior
consent of the other Party.
(2) Clause 16(1) shall not preclude a Non-Defaulting Party from assigning,
charging or otherwise dealing with all or any part of its interest in
any sum payable to it under clause 6(1)(b) or clause 6(2)(b).
17. NON-WAIVER
No failure or delay by either Party to exercise any right, power or
privilege under this agreement shall operate as a waiver thereof nor
shall any single or partial exercise of any right, power or privilege
preclude any other or further exercise thereof or the exercise of any
other right, power or privilege as provided in this agreement.
18. TIME
Time shall be of the essence of this agreement.
19. RECORDING
The Parties agree that each may electronically record all telephonic
conversations between them.
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20. FEES
(1) In respect of each Loan, the Borrower shall pay to the Lender, in the
manner prescribed in subclause (2), sums calculated by applying the
Stock Borrowing Rate to the Offer Price in respect of the amount of the
Securities the subject of an outstanding Loan from time to time.
(2) In respect of each Loan, the payments referred to in subclause (1)
shall accrue daily in respect of the period commencing on and inclusive
of the Settlement Date and terminating on and exclusive of the Business
Day upon which Equivalent Securities are redelivered. The sums so
accruing shall be paid by the Borrower not later than the Business Day
which is one week after the Termination Date or such other date as the
Parties shall from time to time agree. Any payment made pursuant to
subclause (1) above shall be in pounds sterling and shall be paid by
CHAPS transfer to such bank account as the Lender shall nominate or as
is otherwise agreed.
(3) The Borrower and the Lender shall pay their own costs in connection
with the preparation and negotiation of this agreement and any matter
contemplated by it.
21. GOVERNING LAW AND JURISDICTION
(1) This agreement is governed by, and shall be construed in accordance
with, English law.
(2) The Parties hereby irrevocably submit for all purposes of or in
connection with this agreement to the exclusive jurisdiction of the
courts of England and for this purpose the Lender irrevocably appoints
Xxxxxxx Xxxxx of Xxxxxxxx Xxxxx, Xxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX (FAO
Head of Litigation) as its agent for service of process.
22. MISCELLANEOUS
(1) This agreement constitutes the entire understanding of the Parties with
respect to its subject matter and supersedes all previous agreements
with respect thereto (save for the Sponsor's Agreement, the
Underwriting Agreement and any engagement letters in respect of the
offer of shares in Xxxxxxx Page International plc).
(2) No amendment in respect of this agreement will be effective unless in
writing (including writing evidenced by a facsimile transmission) and
executed by each of the Parties.
(3) A person who is not a party to this agreement may not enforce any of
its terms under the Contracts (Rights of Third Parties) Xxx 0000.
(4) This agreement may be executed and delivered in any number of
counterparts (including by facsimile transmission) each of which taken
together shall constitute one and the same agreement.
IN WITNESS WHEREOF this agreement has been executed and delivered as a deed by
the Borrower and the Lender or their duly authorised attorneys the day and year
first written above.
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SCHEDULE 1
THE LENDER
NAME AND ADDRESS MAXIMUM AMOUNT
Spherion (Europe) Inc. 45,978,250 Securities
0000 Xxxxxxxx Xxxxxxxxx,
Xxxx Xxxxxxxxxx, XX 00000
Facsimile Number:
001 954 351 8117
FAO General Counsel
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SCHEDULE 2
FORM OF BORROWING REQUEST
To: Spherion (Europe) Inc.
We hereby notify you that we wish to borrow [ ] ordinary shares of 1 xxxxx
each of Xxxxxxx Page International plc on the following terms:
Settlement Date: [ ] 2001
Price per share: [ ] xxxxx
Please ensure that the transferee of the Securities shown on the CREST Transfer
Form is Credit Suisse First Boston Equities Nominees Limited (CREST account
number [ ]). We enclose (or will provide on request) a suitable CREST Transfer
Form which you may wish to use in relation to the transfer.
Please contact Xxxx Xxxxxxxxx (telephone 000 0000 0000, fax 000 0000 0000) to
discuss the settlement arrangements.
.............................
for and on behalf of Credit Suisse First Boston Equities Limited
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EXECUTED AS A DEED by XXX XXXXXX )
as duly authorized officer of )
SPHERION (EUROPE) INC. )
acting under the authority of that company )
in the presence of: ) /s/ Xxx Xxxxxx
-----------------------------
/s/ Xxxxxx Xxxx
Witness name: Xxxxxx Xxxx
Witness address: Xxxxx & Overy
Xxx Xxx Xxxxxx
Xxxxxx, XX0
EXECUTED AS A DEED by )
as duly authorized attorney for )
CREDIT SUISSE FIRST BOSTON )
EQUITIES LIMITED )
in the presence of: ) /s/ Xxx Xxxxxxxx
-----------------------------
/s/ Xxxxxx Xxxx
Witness name: Xxxxxx Xxxx
Witness address: Xxxxx & Overy
Xxx Xxx Xxxxxx
Xxxxxx, XX0
