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Exhibit 2.2
DATED 5TH MARCH, 2001
SPHERION (EUROPE), INC.
AND
XXXXXXX PAGE INTERNATIONAL PLC
AND
SPHERION CORPORATION
AND
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
----------------------------
SPONSOR'S AGREEMENT
----------------------------
XXXXX & OVERY
London
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CONTENTS
CLAUSE PAGE
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1. Interpretation.......................................................................................1
2. Appointment and Responsibilities.....................................................................2
3. Documents............................................................................................2
4. Listing..............................................................................................2
5. Advertising..........................................................................................3
6. Expenses.............................................................................................3
7. Warranties...........................................................................................4
8. Limits on Liability..................................................................................5
9. Indemnity............................................................................................6
10. Announcements........................................................................................9
11. Termination.........................................................................................10
12. Changes in Directors................................................................................11
13. Service Agreements..................................................................................11
14. Compliance..........................................................................................11
15. Notices.............................................................................................12
16. Amendments..........................................................................................13
17. Supplemental........................................................................................13
18 VAT.................................................................................................13
19. Guarantee...........................................................................................14
SCHEDULES
1. Interpretation......................................................................................17
2. Documents to be delivered to the Sponsor............................................................21
Part A Documents to be delivered to Sponsor pursuant to clause 3(1)...............................21
Part B Documents to be delivered to Sponsor pursuant to clause 3(2)...............................24
Part C Documents to be delivered to Sponsor pursuant to clause 3(3)...............................25
3. Representations and Warranties of the Seller and the Company........................................26
4. Fees and Expenses Schedule..........................................................................36
SIGNATORIES..................................................................................................37
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THIS AGREEMENT is made as a deed on 5th March, 2001 BETWEEN:
(1) SPHERION (EUROPE), INC. a Delaware limited liability corporation whose
registered office is at 0000 Xxxxxxxx Xxxxxxxxx, Xxxx Xxxxxxxxxx,
Xxxxxxx 00000, XXX (the "SELLER");
(2) XXXXXXX PAGE INTERNATIONAL PLC (registered number 3310225) whose
registered office is at 00-00 Xxxxxx Xxxxxx, Xxxxxx XX0X 0XX (xxx
"COMPANY");
(3) CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED (registered number
00891554) whose registered office is at Xxx Xxxxx Xxxxxx, Xxxxxx Xxxxx,
Xxxxxx X00 0XX (the "SPONSOR"); and
(4) SPHERION CORPORATION a Delaware limited liability corporation whose
registered office is at 0000 Xxxxxxxx Xxxxxxxxx, Xxxx Xxxxxxxxxx,
Xxxxxxx 00000, XXX (the "GUARANTOR").
WHEREAS:
(A) In accordance with the Engagement Letters, the Sponsor has been
appointed as financial adviser to Spherion Corporation and the Company
in connection with the Listing and Admission to Trading of the Shares
and the related institutional, priority, employee and retail offers of
Shares in the Company to be sold by the Seller (the "GLOBAL OFFER").
(B) The Company has requested the Sponsor to act as sponsor of the
application to the UK Listing Authority to admit the Shares to the
Official List and as the Company's nominated representative in
connection with the application to the London Stock Exchange to admit
the Shares to trading on its market for listed securities.
(C) The Sponsor has agreed to act as sponsor in connection with the Listing
and as nominated representative in connection with the Admission to
Trading on the terms set out in this document.
(D) The purpose of this agreement is to record certain steps to be taken by
the Company and the Sponsor in connection with the Listing and
Admission to Trading, and to set out, for the benefit of the Sponsor,
certain representations and warranties and certain other matters.
(E) The Guarantor has agreed to guarantee the obligations of the Seller
under this agreement.
(F) 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 1 apply in the interpretation of this
agreement.
(2) References in this agreement to any of the documents which are referred
to in this agreement as being in the "AGREED FORM" and to any of the
documents listed in Schedule 2 are references to that document:
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(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 16.
2. APPOINTMENT AND RESPONSIBILITIES
(1) The Company confirms that the Sponsor has been appointed by it to act
as sponsor in connection with the application for Listing, and as its
nominated representative in connection with the Admission to Trading.
(2) The Sponsor confirms its acceptance of the appointments described in
subclause (1).
(3) The Company confirms that the appointments described in subclause (1)
confer on the Sponsor all powers, authorities and discretions on behalf
of the Company which are necessary for, or reasonably incidental to,
the application for Listing and the Admission to Trading and shall
ratify and confirm everything which the Sponsor lawfully does in
carrying out or exercising such appointments, powers, authorities and
discretions.
(4) The Company acknowledges that the Sponsor's responsibilities as sponsor
are owed solely to the UK Listing Authority and that by agreeing to act
as sponsor this does not extend any duties or obligations to anyone
else including the Company except as provided for in this agreement or
in the Xxxxxxx Page Engagement Letter.
(5) The Guarantor, the Seller and the Company confirm that this agreement
is separate and in addition to, and does not amend, vary, replace or
supersede, the Engagement Letters.
3. DOCUMENTS
(1) As soon as reasonably practicable, and in any event before publication
of the Price Range Prospectus, the Company shall ensure that (so far as
it has the power to do so) the Sponsor receives the documents listed in
Part A of Schedule 2 and the Sponsor shall deliver these documents to
the UK Listing Authority and/or the London Stock Exchange or retain
them itself (as appropriate).
(2) As soon as reasonably practicable, and in any event before publication
of the Final Prospectus, the Company shall ensure that (so far as it
has the power to do so) the Sponsor receives the documents listed in
Part B of Schedule 2 and the Sponsor shall deliver these documents to
the UK Listing Authority and/or the London Stock Exchange or retain
them itself (as appropriate).
(3) As soon as reasonably practicable, and in any event before the
Settlement Date, the Company shall ensure that (so far as it has the
power to do so) the Sponsor receives the documents listed in Part C of
Schedule 2 and the Sponsor shall deliver these documents to the UK
Listing Authority and/or the London Stock Exchange or retain them
itself (as appropriate).
4. LISTING
(1) The Company shall take all reasonable steps within its power to ensure
that Admission becomes effective 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 may agree).
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(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 Sponsor agrees with the Company that it will take all reasonable
steps within its power to assist the Company in obtaining Admission and
in connection with the Company's compliance with this clause 4.
(4) Subject to the UK Listing Authority having approved the Prospectus, the
Company shall ensure that on or before the agreed date of publication
of that Prospectus:
(a) one copy of the Prospectus is delivered to the registrar of
companies in London for registration pursuant to section 149
of the Act; and
(b) the Prospectus is published in accordance with paragraph 8.4
of the Listing Rules.
5. ADVERTISING
(1) The Company shall ensure that and the Seller shall use all reasonable
endeavours to ensure that:
(a) a Formal Notice is published in the Financial Times (or other
national newspaper approved by the Sponsor and published in
the United Kingdom) no later than the next Business Day
following the applicable Publication Date; and
(b) immediately after a Prospectus is published in accordance with
clause 4(4), the relevant Press Announcement shall be released
and sufficient copies of the Prospectus shall be made
available at the registered office of the Company, the
Document Viewing Facility (by delivery of such copies to the
UK Listing Authority) in accordance with paragraphs 8.4 and
8.5 of the Listing Rules.
(2) If for any reason the advertising referred to in subclause (1)(a) does
not take place or takes place but with a material restriction on its
circulation, the Sponsor and the Company shall cause to take place, on
such date as shall be determined by the Sponsor (subject to the
approval of the UK Listing Authority), such advertising of the Formal
Notice as is practicable and complies with the Listing Rules.
6. EXPENSES
The Guarantor shall pay all fees and expenses (and any applicable VAT)
connected with this agreement, the applications for Admission (as
identified in the Fees and Expenses Schedule) and any related
arrangement and the Guarantor further acknowledges that it shall pay
the Sponsor's reasonable legal fees and expenses incurred in connection
with this agreement (and any applicable VAT) in addition to the fees
and expenses (and any applicable VAT) required to be paid by the
Guarantor pursuant to the Spherion Engagement Letter.
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7. WARRANTIES
(1) (a) The Company and the Seller (on a joint and several basis
subject to paragraph (b) below) represent and warrant to the
Sponsor in the terms set out in Schedule 3.
(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.
(c) The Seller warrants to the Sponsor that none of the Offer
Documents (or any supplement or amendment thereto) contains,
as of its date and as at the date hereof, an untrue statement
of material fact, or omits to state a material fact necessary
in order to make the statements made, in light of the
circumstances under which they were made, not misleading.
(d) All representations and warranties by the Seller and the
Company in this agreement shall be deemed to be repeated as of
the date of the Final Prospectus by reference to facts and
circumstances then existing.
(2) The Company and the Seller shall notify the Sponsor 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;
(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 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 the Sponsor 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 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 the Sponsor with any further information which it reasonably
requests if it is notified or otherwise becomes aware of anything
referred to in subclauses (2) or (3).
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(5) If the Sponsor 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:
(i) to prepare a supplementary prospectus, submit it in such terms
as the Sponsor reasonably specifies to the UK Listing
Authority for its approval and, if approved, publish it;
(ii) to make an announcement in such terms and manner as the
Sponsor may reasonably specify;
(iii) to despatch communications in such terms and manner and to
such persons or classes of persons as the Sponsor may
reasonably specify; and
(iv) to take such additional or alternative steps (whether similar
or not to any of the foregoing) as the Sponsor may reasonably
specify.
(6) The Company and the Seller jointly and severally represent, warrant and
agree with the Sponsor that:
(a) neither the Company, the Seller nor any of their affiliates
(as defined in Rule 501 of the Securities Act) nor any person
acting on its or their behalf has engaged in or will engage in
any form of general solicitation or general advertising
(within the meaning of Rule 502(c) under the Securities Act)
in connection with any offer to sell the Shares in the United
States; and
(b) neither the Company, the Seller nor any of their affiliates
(as defined in Rule 501 of the Securities Act) nor any person
acting on its or their behalf has engaged in or will engage in
any directed selling efforts (as defined in Regulation S under
the Securities Act) in connection with the Global Offer, and
they have complied and will comply with the offering
restrictions requirement of Regulation S.
(7) The above representations, warranties and covenants and the indemnity
in clause 9 shall continue in full force and effect in relation to the
Sponsor notwithstanding its actual or constructive knowledge with
respect to any of the matters referred to in the representations and
warranties of the Company or the Seller.
8. 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 8 shall apply to any
claim against the Seller or the Company which arises as a result of
fraud or wilful default.
(3) Save to the extent that the Company has failed to comply with any of
its obligations under this 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
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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 Company or the Seller (as the case may be) pays to the Sponsor
an amount in respect of any liability under clause 7 or clause 9 and
the Sponsor subsequently recovers from a third party a sum which is
directly referable to such liability and which is, when added to the
amount paid by the Company or the Seller (as the case may be), in
excess of the total losses incurred by the Sponsor in respect of any
breaches of clause 7 or under clause 9 giving rise to such liability
and in respect of all other valid claims made pursuant to this
agreement, the Sponsor shall repay to the Company or the Seller (as the
case may be) an amount equal to such excess after deducting all
reasonable costs, charges and expenses incurred by the Sponsor in
recovering that sum from the third party and after deducting any amount
incurred or paid by the Sponsor for taxation (or after compensating the
Sponsor for the loss of any relief or allowance) in respect of such
sum.
(5) The limits on liability contained in this clause 8 do not, for the
avoidance of doubt, affect or otherwise limit the liability of the
Seller or the Company under the Financial Services Xxx 0000 or any
legislation applicable to the Global Offer or at common law.
9. INDEMNITY
(1) No claim may be made by the Company, the Seller or the Guarantor
against the Sponsor or any of its affiliates (as defined by Rule 501(b)
of Regulation D under the Securities Act) ("AFFILIATES") or any person
who controls the Sponsor 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 Sponsor's obligations under this
agreement or otherwise in connection with the Global Offer, the
despatch of the Offer Documents or the fact that any Offer Documents
are untrue, inaccurate or misleading in any material respect or do not
contain all facts material to an intending purchaser of the Shares,
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
resulted directly from:
(a) that Indemnified Person's fraud, wilful default or negligence
or material breach of this agreement or the Underwriting
Agreement or the Engagement Letters; or
(b) a material breach by the Indemnified Party of its duties and
obligations under laws or regulations directly applicable to
the Global Offer; or
(c) an untrue statement or omission made in any of the documents
referred to in paragraphs (a), (e) and (i) of Part A of
Schedule 2, paragraphs (b), (c) and (m) of Part B of Schedule
2 and paragraph (j) of Part C of Schedule 2 (or any amendment
or supplement thereto) in each case in reliance upon and in
conformity with written information furnished to the Company
by an Indemnified Person.
(2) Subject to subclauses (3) and (4) and in consideration of the Sponsor
agreeing to sponsor the application for Listing and agreeing to act as
the Company's nominated representative in connection with the
application for Admission to Trading, the Company and the Seller
(jointly and severally) undertake with the Sponsor and each other
Indemnified Person to fully
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and effectively indemnify each Indemnified Person from and against all
claims, actions, demands, proceedings, liabilities and judgements
(jointly or severally) ("CLAIMS") made or established against any
Indemnified Person and against all losses, costs, charges and expenses
(jointly or severally) ("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:
(a) the provision of the Sponsor's services under this agreement
and the performance by the Sponsor or any other Indemnified
Person on its behalf of the Sponsor's obligations under this
agreement;
(b) the issue or approval of the contents of any investment
advertisement issued in connection with the Listing or
Admission to Trading for the purposes of section 57(1) of the
Act (save for any syndicate research reports);
(c) the issue, publication or use of any press announcements or
the Offer Documents;
(d) any press announcement or any of the Offer Documents being or
being alleged to be untrue, inaccurate, incomplete or
misleading; or
(e) any breach by the Company or the Seller of any of its
obligations under this agreement, the Act, the Listing Rules,
or the admission and disclosure standards of the London Stock
Exchange or any breach of any of the warranties,
representations and undertakings contained in this agreement,
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.
(3) (a) The indemnity contained in subclause (2) above shall not
(other than in respect of paragraph (e)) extend to any claims
or losses to the extent that they are agreed by a relevant
settlement or determined by a court of competent jurisdiction
to have resulted directly from (i) that Indemnified Person's
fraud, wilful default or negligence or material breach of this
agreement or the Underwriting Agreement or the Engagement
Letters; or (ii) a material breach by the Indemnified Party of
its duties and obligations under laws or regulations directly
applicable to the Global Offer.
(b) The indemnity contained in subclause (2) above shall not
extend to any claims or losses to the extent that they are
agreed by a relevant settlement or determined by a court of
competent jurisdiction to have resulted directly from an
untrue statement or omission made in any of the documents
referred to in paragraphs (a), (e) and (i) of Part A of
Schedule 2, paragraphs (b), (c) and (m) of Part B of Schedule
2 and paragraph (j) of Part C of Schedule 2 (or any amendment
or supplement thereto) in each case in reliance upon and in
conformity with written information furnished to the Company
by an Indemnified Person.
(4) The Sponsor 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
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failure to notify shall not relieve any indemnifying person of any
liability which it may have to any Indemnified Person. The Seller and
the Company shall provide the Sponsor with such information and
assistance in relation to such Indemnified Claim (or in relation to any
third party claim or other matter forming the basis of it) as the
Sponsor 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 taken into account in good faith all
reasonable requests which the Seller and/or 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 reasonable opinion of the Sponsor) 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).
(5) For the avoidance of doubt, no claim may be made by the Company, the
Seller or the Guarantor against any director, officer, employee or
agent of the Sponsor and/or of any of their respective affiliates in
respect of any claim the Company, the Seller or the Guarantor may have
against the Sponsor, and/or any of its affiliates.
(6) (a) Any sum payable under the indemnity contained in subclause
(2), this subclause (6)(a) and subclause (6)(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 and retains a net amount
equal to the full amount which it would have received and
retained in the absence of any requirement to make a deduction
or withholding.
(b) If the United Kingdom Inland Revenue or any other taxing
authority brings into charge to taxation any sum payable under
the indemnity contained in subclause (2), under subclause
(6)(a) or this subclause (6)(b) (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 subsequently receives
and retains 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 such additional amount 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 an
additional amount under subclause (a), 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 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).
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(7) In this clause 9 "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.
(8) Each Indemnified Person (other than the Sponsor) may with the prior
written approval of the Sponsor enforce the terms of this clause
against the Company under the Contracts (Rights of Third Parties) Xxx
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(9) The consent of the Indemnified Persons (other than the Sponsor) is not
necessary for any variation (including any release or compromise in
whole or in part of any liability) or termination of this clause.
10. 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 any step to be 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 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.
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(2) The Company:
(a) shall consult with the Sponsor 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 significant matter (similar or not to
the foregoing) affecting any Group company; and
(b) shall forward to the Sponsor for its comments (to which the
Company shall have due regard) 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 in advance concerning any
public statement or document which it 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 for its comments (to which the
Seller shall have due regard) drafts or proofs 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.
11. TERMINATION
(1) Subject to subclauses (2) and (3), no party shall have any further
rights or obligations under this agreement if either (i) the
Underwriting Agreement is not signed by all parties to it by 30th
March, 2001 (or such later date as the parties agree in writing); or
(ii) the Underwriting Agreement (having been signed by all such
parties) does not become unconditional in accordance with its terms or
is terminated in accordance with its terms; or (iii) the appointment of
the Sponsor as financial adviser to the Guarantor or the Company under
either Engagement Letter is terminated.
(2) Unless otherwise terminated earlier, the Sponsor's obligations to act
as the Company's sponsor and to act as the Company's nominated
representative in connection with the Admission to Trading shall cease
on Admission becoming effective.
(3) Clauses 1, 6, 7, 8, 9, 15, 16, 17, 18, and 19 of this agreement shall
remain in full force notwithstanding any termination of this agreement.
Any termination shall not affect any party's accrued rights in
connection with any breach of this agreement or otherwise, in
particular, in relation to clauses 7 and 9 and, in respect of a claim
against the Guarantor, clause 19.
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12. CHANGES IN DIRECTORS
(1) The Company shall as soon as reasonably practicable inform the Sponsor
if:
(a) it is proposed to appoint any person a director of the Company
before the Announcement Date; or
(b) it is proposed that a director should cease to be a director
of the Company before the Announcement Date; or
(c) any person is appointed or ceases to be a director of the
Company at any time before the Announcement Date.
13. SERVICE AGREEMENTS
(1) The service agreements referred to in this clause are those of the
Executive Directors referred to in the Price Range Prospectus.
(2) Except as disclosed in the Final Prospectus or with the Sponsor's prior
written consent (such consent not to be unreasonably withheld or
delayed), the Company shall not:
(a) until the Announcement Date, agree to any material increase
in salary or other material benefits under any service
agreement; or
(b) until the Announcement Date, agree to any material variation
of any service agreement or to any Executive Director being
released from any material obligation or liability arising
under any service agreement,
provided that this clause 13(2) shall not apply to the payment of any
bonuses in accordance with the bonus scheme of the Group operated from
time to time provided that such bonuses shall not exceed in any one
year 100% of the relevant Director's annual salary.
(3) Where the employer under a service agreement is not the Company but
another Group company, the references in subclause (2) to the Company
are replaced by references to that other Group company and the Seller
and the Company shall procure compliance by that other Group company
with those subclauses.
14. COMPLIANCE
(1) The Seller and the Company shall until the Announcement Date comply
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 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 Xxx 0000, Part V of the Criminal Justice Xxx 0000 and
the Act.
(3) The Company shall until the Announcement Date use its best endeavours
to comply with the Combined Code so as to ensure that it is not
required to make any statement in financial
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reports and/or accounts for the financial year ending on or about 31st
December, 2001 to the effect that it has not complied with any aspect
of the Combined Code.
15. 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 its 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
(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 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 and the
Sponsor for the purposes of subclause (1):
THE COMPANY THE SPONSOR THE SELLER AND THE GUARANTOR
00-00 Xxxxxx Xxxxxx 20 Columbus Courtyard Spherion (Europe), Inc.
Xxxxxx XX0X 0XX Xxxxxx 2050 Spectrum Boulevard
E14 4QJ Fort Xxxxxxxxxx
Xxxxxxx
XX 00000, XXX
Fax: 0000 000 0000 Fax: 0000 000 0000 Fax: 000 000 000 0000
Marked for the attention of: Marked for the attention of: Marked for the attention of:
Finance Director Xxx Xxxxxxxx General Counsel
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16. 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 and the Guarantor and any
director of the Sponsor on its behalf.
(2) Subclause (1) also applies 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).
17. 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 Seller and the Company undertake with the Sponsor 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 and the rights
and remedies of the Sponsor 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) In this agreement "LIABILITIES" includes obligations.
(6) Except as expressly stated in clause 9 of 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) Xxx 0000.
(7) Except for the Engagement Letters and the Underwriting Agreement, 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.
(8) This agreement may be executed in any number of 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.
(9) This agreement is governed by and shall be construed in accordance with
English law and each of the parties submits to the exclusive
jurisdiction of the English courts for all purposes relating to this
agreement. The Seller and the Guarantor irrevocably appoint Xxxxxxx
Xxxxx of Xxxxxxxx Xxxxx, Xxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX to act as
their agent for service of process in relation to all matters arising
out of this agreement.
18 VAT
(1) When a person is obliged to pay any fee, commission or other sum to the
Sponsor under this agreement for any supply of services rendered by the
Sponsor to that person and any VAT is
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properly charged on it that person shall also pay to the Sponsor an
amount equal to that VAT on receipt of a valid VAT invoice.
(2) Whenever a person is obliged to pay a sum to the Sponsor under this
agreement as reimbursement for any fee, cost, charge or expense (the
"RELEVANT COST") that person shall also pay to the Sponsor an amount
which:
(a) if for VAT purposes the Relevant Cost is consideration for a
supply of goods or services made to the Sponsor and the
Sponsor does not charge VAT on it under subclause (1), is
equal to any input VAT incurred by the Sponsor on that supply
which the Sponsor certifies that it is unable to recover from
HM Customs & Excise (whether by repayment or credit); and
(b) if for VAT purposes the Relevant Cost is a disbursement
incurred by the Sponsor as agent on behalf of that person
(other than in circumstances where the Sponsor acts as agent
within the meaning of section 47(3) of the Value Added Tax Xxx
0000 and other than in circumstances where H.M. Customs and
Excise treat the supply in respect of which the disbursement
was incurred as a supply to the Sponsor acting as agent by
virtue of that sub-section), is equal to any VAT paid on the
Relevant Cost by the Sponsor,
and, in the case of a payment under paragraph (b) above, the Sponsor
shall use reasonable endeavours to procure that the actual supplier
issues, a valid VAT invoice directly to that person.
19. GUARANTEE
(1) In consideration of the Sponsor agreeing to act as Sponsor and the
Company undertaking its obligations under this agreement, the Guarantor
irrevocably and unconditionally:
(a) as principal obligor guarantees to the Sponsor prompt
performance by the Seller of all its obligations under this
agreement including without limitation those under clauses 7
and 9;
(b) as principal obligor guarantees to the Company prompt
performance by the Seller of all its obligations under clause
7;
(c) undertakes with the Sponsor 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 7, 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 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
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(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.
(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 Company 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 and the Company 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 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;
(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
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(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 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 and
the Sponsor 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.
IN WITNESS of which this agreement has been executed as a deed which has been
delivered on the date first appearing on page 1.
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SCHEDULE 1
INTERPRETATION
(1) In this agreement:
"ACT" means the Financial Services Xxx 0000;
"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 31st December,
2001;
"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;
"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 UK Listing Authority
and the London Stock Exchange, on the market for listed securities of
the London Stock Exchange;
"DIRECTOR" means a director of the Company;
"DOCUMENT VIEWING FACILITY" means the document viewing facility defined
in the Listing Rules;
"ENGAGEMENT LETTERS" means the Spherion Engagement Letter and the
Xxxxxxx Page Engagement Letter;
"EXCHANGE ACT" means the United States Securities Exchange Act of 1934,
as amended;
"EXECUTIVE DIRECTORS" means the executive directors of the Company at
the date of this agreement;
"FEES AND EXPENSES SCHEDULE" means the schedule in the Agreed Form
attached as schedule 4 hereto;
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"FINAL PROSPECTUS" means the supplementary prospectus to be published
pursuant to section 147 of the Act (as applied by section 154A of the
Act) to announce, amongst other things, the price of the Shares;
"FORMAL NOTICES" means the notices required under paragraph 8.7 of the
Listing Rules in the Agreed Form and "FORMAL NOTICE" means any one of
them;
"GROUP" means the Company and its subsidiary undertakings and "GROUP
COMPANY" means any of them;
"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;
"LONG FORM REPORT" means the long form report on the Group dated on or
around 5th March, 2001 prepared by Deloitte & Touche and addressed to
(inter alia) the Company and the Sponsor;
"XXXXXXX PAGE ENGAGEMENT LETTER" means the engagement letter dated 5th
March, 2001 between the Sponsor and the Company relating to the
appointment of the Sponsor as financial adviser to the Company in
connection with Admission;
"NON-EXECUTIVE DIRECTORS" means the non-executive directors of the
Company at the date of this agreement;
"OFFER DOCUMENTS" means the Prospectuses, the Formal Notices, letters
to the employees, friends and places, the employee, friends and retail
offer application forms, the Press Announcements and any other press
announcements relating to the Company's intention to apply for Listing,
the issue of any of the foregoing or Admission;
"OFFICIAL LIST" means the Official List of the UK Listing Authority;
"PRESS ANNOUNCEMENTS" means the press announcements in the Agreed Form;
"PRICE RANGE PROSPECTUS" means the price range prospectus in the Agreed
Form relating to the Global Offer;
"PROSPECTUSES" means the Price Range Prospectus and the Final
Prospectus and "PROSPECTUS" means any one of them;
"PUBLICATION DATE" means the date of publication of a Prospectus in
accordance with clause 4(4);
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"SECURITIES ACT" means the United States Securities Act of 1933, as
amended;
"SETTLEMENT DATE" means the date Admission becomes effective (expected
to be 2nd April, 2001);
"SHARES" means the issued ordinary shares of one xxxxx 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 Act (as applied by
section 154A of the Act) applies in the context of the Global Offer;
"SPHERION ENGAGEMENT LETTER" means the engagement letter dated October
13th, 2000 between CSFB Corporation and the Guarantor relating to the
appointment of the CSFB Corporation as financial adviser to the
Guarantor in connection with Admission;
"STATEMENT" includes any forecast or estimate and any expression of
opinion, belief, expectation, intention or policy;
"STABILISATION PERIOD END DATE" means the 30th day after the Settlement
Date;
"SUBSIDIARY UNDERTAKINGS" and "pARENT UNDERTAKING" shall have the
meaning given in section 258 of the Companies Xxx 0000;
"TAXES ACT" means the Income and Corporation Tax Xxx 0000;
"UK LISTING AUTHORITY" means the Financial Services Authority in its
capacity as competent authority under the Financial Services Xxx 0000;
"UNDERWRITING AGREEMENT" means the underwriting agreement relating to
the Global Offer to be entered into between the Guarantor, the Seller,
the Company, the Directors and the underwriters;
"VAT" means UK value added tax chargeable under the Value Added Tax Xxx
0000 and any other similar tax within the European Union or elsewhere;
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
Taxes Act.
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(4) If a supplementary 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 any 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, 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, standard or requirement of UK Listing Authority, 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.
(7) Where any statement is qualified by the expression "SO FAR AS THE
SELLER/COMPANY 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).
(8) References to "OPINION" or "OPINIONS" include expressions of belief,
expectation, intention and policy.
(9) References to "material" mean material in the context of the Global
Offer.
(10) Paragraphs (1) to (8) of this schedule apply throughout this agreement,
unless the contrary intention appears.
(11) The headings in this agreement do not affect its interpretation.
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SCHEDULE 2
PART A
DOCUMENTS TO BE DELIVERED TO SPONSOR PURSUANT TO CLAUSE 3(1)
(a) The press announcement relating to the issue of the Price
Range Prospectus/Formal Notice.
(b) The Deloitte & Touche engagement letter.
(c) Executive Directors' service contracts and Non-Executive
Directors' appointment letters.
(d) The application for Listing signed by a Director.
(e) The Price Range Prospectus signed by each Director (or his
agent authorized in writing).
(f) The Employee Offer Application Form and the On-line
Application Form, each as defined in the Prospectus.
(g) A signed declaration to the UK Listing Authority by each of
the Directors (or his attorney) in conformity with paragraph
5.5 of the Listing Rules.
(h) Certified copy of a signed responsibility letter and power of
attorney from each of the Directors.
(i) The formal notice relating to the Price Range Prospectus.
(j) Certified copies of:
(i) board minutes of the Company dated 27th February,
2001; and
(ii) board committee minutes of the Company dated 1st
March, 2001.
(k) The form of the definitive share certificate.
(l) The Short Form Report on the Group by Deloitte & Touche in the
form in which the report appears in the Price Range
Prospectus, and their statement of adjustments.
(m) Copies of:
(i) the certificate of incorporation and the certificates
of incorporation on changes of name and
re-registration as a public company of the Company;
and
(ii) the memorandum and articles of association of the
Company.
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(n) The written consents of Deloitte & Touche to the inclusion in
the Price Range Prospectus of the report referred to in
paragraph (o) and the references to them and their report in
the form and context in which they are included.
(o) A signed copy of the Verification Notes relating to the Price
Range Prospectus.
(p) The Long Form Report from Deloitte & Touche.
(q) Deloitte & Touche letters on financial reporting procedures
and on the accuracy of financial information in the Price
Range Prospectus.
(r) Deloitte & Touche letter on no significant change (to include
indebtedness) since the Last Accounts Date and extraction of
financial information in the Price Range Prospectus.
(s) Letters from the Company to the Sponsor regarding financial
reporting procedures (2.11) and extraction of financial
information (r 2.15A).
(t) Deloitte & Touche SAS 72-style letter, and international
comfort letter and derogation letters.
(u) The letter from the Company to the Sponsor regarding the
Group's working capital.
(v) The working capital report on the Group (incorporating a
comfort letter) by Deloitte & Touche, and working capital
board memorandum.
(w) The report on proforma statement of net assets by Deloitte &
Touche.
(x) Sponsor's letter to the UK Listing Authority on working
capital.
(y) Sponsor's consent letter.
(z) Company's representation letter to Deloitte & Touche.
(aa) Letters in support of the Sponsors' letter in connection with
paragraph 2.8 of the Listing Rules from:
(i) Deloitte & Touche;
(ii) Xxxxxxx Xxxxx; and
(iii) the Company.
(bb) The agreement relating to the appointment of the Registrars,
and of DLJ Direct in relation to the retail offer.
(cc) The non-applicable letter from the Sponsor to the UK Listing
Authority.
(dd) The Sponsor's Schedule 4A declaration to the UK Listing
Authority.
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(ee) The Sponsor's declaration of independence (Schedule 1A).
(ff) Xxxxxxx Xxxxx legal due diligence report.
(gg) Xxxxxxx Xxxxx memorandum on continuing obligations.
(hh) Schedule 6 declaration
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PART B
DOCUMENTS TO BE DELIVERED TO SPONSOR PURSUANT TO CLAUSE 3(2)
(a) One original of Deloitte & Touche SAS72 - style bring down comfort
letter.
(b) The pricing press announcement.
(c) The Final Prospectus signed by or on behalf of each Director (or his
agent authorised in writing);
(d) One certified copy of the board/committee minutes: (i) of the Company
approving and authorising, inter alia, the issue of the Final
Prospectus and (ii) of the Guarantor and Seller in forms acceptable to
the Sponsor;
(e) One original signed declaration by each Director in conformity with
paragraph 5.5 of the Listing Rules together with two certified copies
of each declaration.
(f) One original of Deloitte & Touche's bring down comfort letter (dealing
with, significant changes, extraction of financial information and 2.11
confirmation and in support of the Sponsor's Schedule 4A declaration).
(g) One original bring down comfort letters in support of the Sponsor's
Schedule 4A declaration from:
(i) Deloitte & Touche;
(ii) Xxxxxxx Xxxxx; and
(iii) the Company (incorporating bring down 2.11 and 2.14 comfort).
(h) One original bring down comfort letter from the Company to the Sponsor.
(i) The formal notice relating to the Final Prospectus.
(j) One original Schedule 6 declaration by the Company.
(k) Verification Notes (if any) relating to the Final Prospectus.
(l) CREST application form and CREST enablement letter.
(m) Letters to Friends and to Employees (and terms and conditions of
application under the Priority and the Employee Offer and questions and
answers).
(n) The institutional invitation letter.
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PART C
DOCUMENTS TO BE DELIVERED TO SPONSOR PURSUANT TO CLAUSE 3(3)
(a) One original bring down 2.8, 2.11 and 2.14 comfort letter from the
Company dated the Settlement Date in the Agreed Form.
(b) A certificate from the Company, the Guarantor and the Seller (signed by
a duly authorised officer of the Guarantor, the Seller and the Company)
and dated the Settlement Date to the effect that there has been no
event which would, if the representations and warranties given by the
relevant warrantors pursuant to this agreement were repeated on the
date of such certificate, make any of the representations and
warranties given by them untrue or incorrect in any material respect,
in the Agreed Form.
(c) One original Deloitte & Touche bring down comfort letter (dealing with
the Long Form Report, working capital report, indebtedness, significant
changes, extraction of financial information and 2.11 confirmation)
dated the Settlement Date in the Agreed Form.
(d) One original Deloitte & Touche SAS72 bring down comfort letter dated
the Settlement Date in the Agreed Form.
(e) One copy of the bring down representation letter from the Company to
Deloitte & Touche dated the Settlement Date in the Agreed Form.
(f) A 10b-5 disclosure letter dated the Settlement Date from Xxxxxxx Xxxxx,
legal advisers to the Company and from Xxxxx & Overy, legal advisers to
the Global Offer dated the Settlement Date in the Agreed Form.
(g) US no registration opinion.
(h) Two originals of a deed poll in respect of the delivery of Rule
144A(d)(4) information in the Agreed Form executed by the Company and
dated the Settlement Date.
(i) One original of the Xxxxxxx Xxxxx bring down 2.8 letter dated the
Settlement Date in the Agreed Form.
(j) Closing press announcement.
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SCHEDULE 3
REPRESENTATIONS AND WARRANTIES OF THE SELLER AND THE COMPANY
1. PROSPECTUSES
(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 or 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
or any Director or the Guarantor or the Seller or which is
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 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
is true and not misleading.
(5) No statement in the notes to the financial information 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.
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
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.
(4) When the Shares are delivered pursuant to this agreement, the Shares
will not be the same class (within the meaning of Rule 144A under the
Securities Act) as securities which are listed on a national securities
exchange registered under Section 6 of the Exchange Act or quoted in a
U.S. automated inter-dealing quotation system.
3. CAPACITY
(1) Save as referred to in the Price Range Prospectus, the Guarantor, the
Seller and the Company have power under their respective 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
Company, the Guarantor or the Seller 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,
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the Seller or any Group company or result in the imposition or
variation of any rights or obligations of the Guarantor, 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 Company 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:
(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; and
(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.
9. CONTRACTS, ETC.
(1) Except as disclosed in the Prospectus, no Group company is a party to,
or affected by, any material contract or arrangement otherwise than by
way of a bargain at arm's length, except
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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) 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 Company or the Seller 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.
(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 17 of the Taxes Act) of any Group company has
ended as referred to in section 12(3) of the Taxes Act.
(3) All tax which has become due from any Group company or for which any
Group company has become obliged 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
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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 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 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.
(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.
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(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 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 or nor has any petition been presented for the winding-up of
any Group company or for the appointment 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.
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(3) No voluntary arrangement has been proposed under Section 1 of the
Insolvency Xxx 0000 in respect of any Group company and no compromise
or arrangement has been proposed, agreed to or sanctioned under Section
425 of the Companies Xxx 0000 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 Act 1976 and 1977, whilst
those acts were in force;
(b) any provision of the Competition Xxx 0000, if such provision
were now in force, 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
(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.
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(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 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 Xxxxxxx Xxxxx 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.
(4) All sums payable in respect of any pension schemes (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.
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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 referred to or provided for
by this agreement and all related arrangements will, so far as not the
direct responsibility of the Sponsor, 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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SCHEDULE 4
FEES AND EXPENSES SCHEDULE
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SIGNED as a deed by )
as duly authorized attorney for )
SPHERION (EUROPE), INC. )
acting under the authority of that )
company in the presence of: )
Name: /s/ Xxx Xxxxxx
-----------------------------------
Xxx Xxxxxx
Address: 0000 Xxxxxxxx Xxxx.
-----------------------------------
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
-----------------------------------
EXECUTED as a deed by )
XXXXXXX PAGE )
INTERNATIONAL PLC )
acting by: )
/s/ Xxxxx Xxxxxx
---------------------------
Director
/s/ Xxxxxxx Xxxxxxx
---------------------------
Director/Secretary
SIGNED as a deed by
as duly authorized attorney )
for SPHERION CORPORATION )
acting under the authority of that company )
in the presence of: )
Name: /s/ Xxx Xxxxxx
-----------------------------------
Xxx Xxxxxx
Address 2050 Spectrum Blvd.
-----------------------------------
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
-----------------------------------
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SIGNED as a deed by )
as duly authorized attorney for )
CREDIT SUISSE FIRST BOSTON ) /s/ Xxx Xxxxxxxx
(EUROPE) LIMITED )
in the presence of: )
/s/ Xxxxxxxx Xxxxx
Name: Xxxxxxxx Xxxxx
-----------------------------------
Address 20 Columbus Courtyard
-----------------------------------
London
-----------------------------------
X00 0XX
-----------------------------------
