<PAGE>
Exhibit 2.1
DATED 6TH JULY, 2000
RW HOLDING, C.V.
FAIT, L.L.C.
ROBERT WALTERS PLC
THE DIRECTORS
NAMED IN SCHEDULE 1
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
WEST LB PANMURE LIMITED
and
CHARTERHOUSE SECURITIES LIMITED
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SPONSORSHIP AND UNDERWRITING AGREEMENT
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<PAGE>
CONTENTS
<TABLE>
<CAPTION>
Clause Page
<S> <C> <C>
1. Interpretation................................................................................. 7
2. Documents and Appointments..................................................................... 7
3. Admission and Allotment........................................................................ 8
4. Sale of Sale Shares............................................................................ 9
5. Conditions..................................................................................... 11
6. Appointment of Sponsor as Agent................................................................ 11
7. Undertakings by the Underwriters............................................................... 12
8. Advertising.................................................................................... 13
9. Underwriting................................................................................... 14
10. Proceeds of the Global Offer................................................................... 14
11. Settlement and Registration.................................................................... 15
12. Announcements.................................................................................. 15
13. Restrictions................................................................................... 16
14. Commissions.................................................................................... 18
15. Expenses....................................................................................... 19
16. Warranties..................................................................................... 20
17. Tax............................................................................................ 22
18. Limits on Liability............................................................................ 22
19. Termination.................................................................................... 23
20. General Indemnity.............................................................................. 25
21. Stabilisation.................................................................................. 28
22. VAT............................................................................................ 29
23. Obligations of each Director................................................................... 30
24. Changes in Directors........................................................................... 30
25. Service Agreements............................................................................. 30
26. Compliance..................................................................................... 31
27. Notices........................................................................................ 31
28. Amendments..................................................................................... 33
29. Supplemental................................................................................... 33
Schedules
1. Part A - Executive Directors...................................................................
Part B - Non-Executive Directors...............................................................
2. The Sellers....................................................................................
3. Interpretation.................................................................................
4. Documents to be delivered to the Sponsor.......................................................
5. Underwriting Allocations.......................................................................
6. Representations and Warranties to be given by the Company and the Directors....................
7. Tax............................................................................................
8. Executive Directors' Limitations of Liability..................................................
9. Non-Executive Directors' Limitations of Liability..............................................
</TABLE>
<PAGE>
THIS AGREEMENT is made on 6th July, 2000 BETWEEN:
(1) RW HOLDING, C.V. a Dutch partnership whose principal place of business is
at Strawinskylaan 3105, 1077ZX, Amsterdam, The Netherlands ("RWH");
(2) FAIT L.L.C., a Delaware limited liability corporation whose principal place
of business is at 1209 Orange Street, Wilmington, Delaware, 19801, USA
("FAIT", and, together with RWH, the "Sellers");
(3) ROBERT WALTERS PLC (registered number 3956083) whose registered office is
at 25 Bedford Street, London WC2E 9HP (the "Company");
(4) THE DIRECTORS of the Company whose names are set out in column (1) of Parts
A and B of Schedule 1 (the "Directors" and each a "Director");
(5) CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED of One Cabot Square, London E14
4QJ (the "Sponsor"); and
(6) WEST LB PANMURE LIMITED ("West LB") and CHARTERHOUSE SECURITIES LIMITED
("Charterhouse") of New Broad Street House, 35 New Broad Street, London
EC2M 1SQ and 1 Paternoster Row, St. Paul's, London EC4M 7DH respectively
(each an "Underwriter" and, together with the Sponsor, the "Underwriters").
WHEREAS:
(A) Application has been made to the UK Listing Authority to obtain a listing
for the Shares and to the London Stock Exchange for the Shares to be
admitted to trading on its market for listed securities. The Sponsor has
agreed to act as sponsor in connection with the applications.
(B) The Company proposes to issue the New Shares and the Sellers propose to
sell the Sale Shares pursuant to the arrangements described in the Price
Range Prospectus and the Final Prospectus and this agreement.
(C) The Company has appointed the Sponsor as sponsor, financial adviser, sole
global co-ordinator, lead manager and sole bookrunner, West LB and
Charterhouse as co-managers and the Registrars as registrars and receiving
agents in respect of the Global Offer.
(D) Application forms have been received from certain eligible employees of the
Group (the "Employees") in some jurisdictions to subscribe New Shares and
in other jurisdictions to subscribe for or purchase Sale Shares pursuant
to the employee offer described in the Price Range Prospectus (the
"Employee Offer").
<PAGE>
(E) The Underwriters have sought from prospective institutional and
professional investors in various jurisdictions (with the exception of the
United States) non-binding indications of interest in subscribing for
and/or purchasing Institutional Offer Shares as described in the Price
Range Prospectus (the "Institutional Offer").
(F) Allocations under the Institutional Offer and Employee Offer have been
determined at the discretion of the Sponsor (following consultation with
the Company and the Sellers).
(G) Each Underwriter has agreed to underwrite its allocation under the Global
Offer as set out in Schedule 5.
(H) The Directors have agreed to enter into this agreement in consideration of
the Sponsor agreeing to act as sponsor, financial adviser, sole global co-
ordinator, lead manager and sole bookrunner in respect of the Global Offer
and the Underwriters agreeing to underwrite their allocation of the Global
Offer.
(I) The Price Range Prospectus, Employee Letter and Application Form were
published and distributed on 20th June, 2000 and the Sponsor has received
the documents listed in Schedule 4, Part A and delivered them to the UK
Listing Authority (where appropriate).
(J) The Guarantor has agreed to guarantee the obligations of the Sellers under
this agreement pursuant to the Guarantee.
IT IS AGREED as follows:
Interpretation
--------------
The provisions of Schedule 3 apply in the interpretation of this agreement.
References in this agreement to any of the documents which are referred to in
Schedule 4 as being in the "Agreed Form" and to any of the documents listed in
Schedule 4 are references to that document:
in the form initialled for the purposes of identification by a director of the
Company and a director of the Sponsor; or
in that form as amended under clause 28.
Documents and Appointments
--------------------------
(1) 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 Schedule 4,
Part B.
(2) As soon as reasonably practicable, and in any event on or before the
Settlement Date, the Company shall ensure (so far as it has the power to do
so) that the Sponsor receives the documents listed in Schedule 4, Part C.
<PAGE>
Admission and Allotment
-----------------------
The Company:
(a) confirms that applications have been made for Admission and that the
Sponsor has been appointed by it to act as sponsor in connection with
the applications;
(b) confirms that the Sponsor has been appointed by it to act as
stockbroker in connection with the application for Admission;
(c) confirms that application has been made to CRESTCo Limited to admit
the Shares (issued and to be issued) as participating securities
within CREST;
(d) shall take all reasonable steps to ensure that Admission becomes
effective and that the Shares are admitted as participating securities
within CREST not later than 8.00 a.m. on 13th July, 2000 (or such
later time and date as the Company and the Sponsor (on behalf of the
Underwriters) may agree);
(e) undertakes that on Admission it will allot and issue, in accordance
with the terms of the Global Offer, the New Shares to the Placees or
Employees (as the case may be) or to the Underwriters in each case in
the proportions and as otherwise previously directed by the Sponsor,
and that it will allot and issue all the New Shares to be allotted and
issued by it pursuant to the Global Offer, fully paid up in cash at
the Offer Price, free from all encumbrances and ranking pari passu
with all other Shares; and
(f) undertakes that on Admission it will allot and issue such of the New
Shares as are being allocated to the Placees to the CSFB Nominee
(Account 7), and the Company will procure that such Shares are
credited by the Registrar to the CREST accounts of the CSFB Nominee
(Account 7) as notified to the Registrar and the Company by the
Sponsor.
<PAGE>
The Company shall supply all such information, give all such undertakings, pay
all such fees and execute all such deeds and documents as may properly be
required by the UK Listing Authority or the London Stock Exchange in connection
with the applications for Admission.
The Company shall supply all such information, give all such undertakings, pay
all such fees and execute all such deeds and documents as may properly be
required in connection with the admission of the Shares as participating
securities within CREST.
Subject to the UK Listing Authority having approved the Final Prospectus, the
Directors and the Company shall ensure that on or before 4.30 p.m. on 6th July,
2000 (or such later time and date as the Company and the Sponsor (on behalf of
the Underwriters) may agree):
(a) two copies of the Final Prospectus are delivered to the registrar of
companies in London for registration pursuant to section 149 of the
Act; and
(b) the Final Prospectus is published in accordance with paragraph 8.4 of
the Listing Rules.
(5) The Sponsor agrees with the Company and the Sellers that it will take all
reasonable steps to assist the Company in obtaining Admission and in
connection with the Company's compliance with this clause 3.
SALE OF SALE SHARES
-------------------
(1) Each of the Sellers undertakes and represents to the Company and to each
Underwriter that the execution of this agreement by it has been duly
authorised by it and this agreement constitutes its legal, valid and
binding obligations, enforceable in accordance with its terms and that all
corporate approvals and authorisations required by it for the execution of
this agreement and the performance of its terms have been obtained, are
unconditional and are in full force and effect.
(2) Each of the Sellers covenants with the Company and each Underwriter that,
at the date hereof and at the time Listing becomes effective:
(a) it has the right to sell and transfer the full legal and beneficial
interest in the Sale Shares held by it pursuant to the Global Offer,
on the basis and terms, and subject to the conditions, of the Offer
Documents;
(b) the Sale Shares held by it are fully paid;
(c) the information in Schedule 2 relating to each Seller is true and
accurate; and
(d) to the extent that any statements or omissions made in the Offer
Documents are made in reliance upon and in conformity with written
information furnished to the Company by the Sellers expressly for use
therein, such Offer Documents, as of their date, will not contain any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading.
<PAGE>
(3) The Sellers undertake to the Company and each Underwriter to sell the Sale
Shares to such Employees and Placees as are (following consultation with
the Sellers) allocated to them pursuant to the Global Offer and free from
all equities, liens, charges and encumbrances of any kind and with all
rights attaching to those shares.
(4) Immediately following the execution of this agreement each Seller shall
deliver to the Sponsor:
(a) the Seller's Power of Attorney duly executed by it; and
(b) a CREST transfer form (in favour of the CSFB Nominee (Account
Prinaset)) undated and duly executed by it and a share certificate in
the name of each Seller (or its nominee(s)) in respect of the Sale
Shares (with the exception of the Sale Shares allocated to Employees).
The Sponsor shall procure that the CSFB Nominee holds such CREST
transfer form to the order of the Sellers until Admission. The
Sellers shall confirm to the Registrar that such Sale Shares shall be
held to the order of the CSFB Nominee (acting as agent of the Sellers)
upon Admission. Each Seller agrees that immediately following
Admission such Sale Shares shall be transferred in CREST to the CSFB
Nominee (Account Prinaset) (acting as agent of the Sellers) and the
Company shall procure that the CSFB Nominee (Account Prinaset) is
registered as the holder of such Sale Shares; and
(c) a duly executed block stock transfer form(s) in favour of such
Employees as are to receive Sale Shares (details of whom will be
notified to the Sellers by the Registrars).
(5) If either Seller fails to comply with subclause (4) any Director of the
Company or the Sponsor may complete and execute on its behalf in favour of
the CSFB Nominee (or the relevant Employees as the case may be) one or more
CREST (or block) transfer forms in respect of the relevant Sale Shares and
deliver those transfer form(s) to the CSFB Nominee (or the Registrars as
the case may be).
(6) Without prejudice to the other provisions of this clause, each Seller shall
execute any further documents and do anything which is necessary or, in the
opinion of the Company or the Sponsor, desirable to ensure that the Sale
Shares are held in the CREST account of the CSFB Nominee (Account Prinaset)
immediately after Admission, and otherwise for the Sale Shares to vest in
the relevant Employees and Placees.
(7) RWH unconditionally and irrevocably grants to the Sponsor (on behalf of the
Underwriters) the option to require RWH to sell up to 10,400,000 additional
Shares at the Offer Price as directed by the Sponsor, such option to be
exercisable in part or in whole on one or more occasions upon notice in
writing to RWH by the Sponsor given no later than 5.00 p.m. (London time)
on the Stabilisation Period End Date. (i) If any such notice is given to
RWH prior to the Settlement Date, then the number of Shares to which the
notice relates shall be delivered by RWH (as directed by the Sponsor) on
the Settlement Date. (ii) If any such notice is given to RWH on or after
<PAGE>
the Settlement Date then the number of additional Shares to which that
notice relates shall be delivered by RWH (as directed by the Sponsor)
within two Business Days of the date of that notice. In each case, the
Sponsor shall pay to RWH the aggregate Offer Price payable in respect of
the additional Shares in respect of which the option is exercised less a
commission equal to 4 per cent. of the Offer Price multiplied by the number
of such additional Shares in respect of which the option is exercised on
the same date as and against delivery of such additional Shares.
Conditions
----------
(1) Clauses 6 and 7 come into effect when the Sponsor is satisfied that the
Final Prospectus has been delivered for registration and published in
accordance with clause 3(4). If the Sponsor is not satisfied as to those
matters on or before the Settlement Date those clauses never come into
effect.
(2) Clause 9 shall come into effect when:
(a) each of the documents listed in Schedule 4, Part B has been delivered
to the Sponsor; and
(b) the UK Listing Authority has agreed to admit the Shares to the
Official List and conditional dealings in the Shares have commenced on
or before 6th July, 2000 or such later time and date as the Company
and the Sponsor (on behalf of the Underwriters) may agree.
(3) If:
(a) either of the conditions set out in subclauses (1) and (2) is not
fulfilled on or before the date specified in the relevant subclause;
or
(b) any of the Company, the Directors or either Seller or the Guarantor
has not complied, in all material respects, with all its respective
obligations under this agreement or the Guarantee which fall to be
performed or satisfied on or prior to the Commencement of Dealings; or
(c) any event has occurred which would make any of the representations and
warranties contained in clauses 4(1), (2) or (3) or 16 and Schedule 6
given by the Company or the Directors or the Sellers, or those in the
Guarantee given by the Guarantor, untrue or incorrect in any material
respect in the context of the Global Offer or the application for
Listing if they had been repeated at any time up to and including the
time when the final condition (other than this condition) has been
satisfied; or
(d) Listing has not become effective or the Shares have not been admitted
as participating securities within CREST by 8.00 a.m. on 13th July,
2000,
clause 19(1) shall apply as if non-fulfilment of the relevant condition (or
other event set out in this clause 5(3)) had been the service of a
termination notice and, save as specified in clause 19(3), no party shall
have any further rights or obligations under this agreement.
Appointment of Sponsor as Agent
-------------------------------
(1) The Company hereby appoints the Sponsor (on behalf of the Underwriters) as
its agent for the purpose of carrying out the Global Offer and arranging
subscribers of
<PAGE>
New Shares under the Institutional Offer and, to the extent required, under
the Employee Offer on behalf of the Company on the terms and subject to the
conditions of the Global Offer or Employee Offer (as appropriate) as set
out in the Offer Documents.
(2) The Sellers hereby appoint the Sponsor (on behalf of the Underwriters) as
their agent for the purpose of carrying out the Global Offer and arranging
purchasers of Sale Shares on their behalf on the terms and subject to the
conditions of the Global Offer as set out in the Offer Documents.
(3) The Sponsor accepts the appointments under subclauses (1) and (2).
(4) The Company confirms that the appointment under subclause (1) confers on
the Sponsor (on behalf of the Underwriters) all powers, authorities and
discretions on behalf of the Company which are necessary for, or reasonably
incidental to, the carrying out of the Global Offer, to the extent that it
relates to New Shares and the Employee Offer (to the same extent), and
shall ratify and confirm everything which the Sponsor lawfully does in
carrying out or exercising such appointment, powers, authorities and
discretions.
(5) The Sellers confirm that the appointment under subclause (2) confers on the
Sponsor (on behalf of the Underwriters) all powers, authorities and
discretions on behalf of the Sellers which are necessary for, or reasonably
incidental to, the carrying out of the Global Offer to the extent that it
relates to Sale Shares, and shall ratify and confirm everything which the
Sponsor lawfully does in carrying out or exercising such appointment,
powers, authorities and discretions.
(6) The Company and the Sellers hereby irrevocably authorise the Sponsor to
give to the Registrars and/or CRESTCo Limited and/or the Underwriters any
instructions consistent with this agreement and the Offer Documents which
the Sponsor considers necessary for or incidental to the Global Offer or
for otherwise giving effect to this agreement.
Undertakings by the Underwriters
--------------------------------
(1) Each Underwriter severally represents, warrants and undertakes to each
other and the Company and the Sellers that:
(a) it has not offered or sold and will not offer or sell any Global Offer
Shares to persons in the United Kingdom prior to admission of such
shares to listing in accordance with Part IV of the Act except to
persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which have
not resulted and will not result in an offer to the public in the
United Kingdom within the meaning of the Public Offers of Securities
Regulations 1995 or the Act;
(b) it has only issued or passed on and will only issue or pass on in the
United Kingdom any document received by it in connection with the
Global Offer, other than any document which consists of or any part of
listing particulars,
<PAGE>
supplementary listing particulars or any other document required or
permitted to be published by listing rules under Part IV of the Act,
to a person who is of a kind described in Article 11(3) of the
Financial Services Act 1986 (Investment Advertisements) (Exemptions)
Order 1996 (as amended) or is a person to whom such document may
otherwise lawfully be issued or passed on; and
(c) it has complied and will comply with all applicable provisions of the
Act with respect to anything done by it in relation to the Global
Offer in, from or otherwise involving the United Kingdom.
(2) Each Underwriter severally and not jointly understands and agrees that the
New Shares and Sale Shares have not been and will not be registered under
the Securities Act and may not be offered or sold within the United States
or to, or for the account or benefit of, U.S. persons. Each Underwriter
severally and not jointly represents, warrants and undertakes that it has
not offered or sold, and will not offer or sell, any New Shares or Sale
Shares constituting part of its allotment within the United States or to,
or for the account or benefit of, U.S. persons.
(3) Each Underwriter severally and not jointly represents, warrants and
undertakes that neither it, its affiliates, nor any persons acting on its
or their behalf has engaged or will engage in any directed selling efforts
(as defined in Regulation S) with respect to the New Shares and Sale Shares
and it and they have complied and will comply with the offering
restrictions requirement of Regulation S.
(4) The Underwriters each severally and not jointly undertake to each other and
the Company and the Sellers that, in respect of jurisdictions outside the
United Kingdom it will only procure subscribers or purchasers for, and make
sales of, Institutional Offer Shares to Placees in accordance with
applicable laws and regulations.
Advertising
-----------
(1) The Company shall ensure that:
(a) the second Formal Notice shall be 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 after the
Publication Date; and
(b) sufficient copies of the Final Prospectus are made available at the
registered office of the Company, at the UK Listing Authority and
other locations referred to in the Formal Notice to satisfy public
demand in accordance with paragraphs 8.4 and 8.5 of the Listing Rules.
<PAGE>
If for any reason the advertising referred to in paragraph (a) does not
take place or takes place but with a material restriction on its
circulation, the Sponsor 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.
(2) The Company shall arrange for copies of the Final Prospectus to be made
available immediately after the Final Prospectus is published in accordance
with clause 3(4).
Underwriting
------------
(1) In respect of the Global Offer, each Underwriter severally, and not
jointly, agrees to procure (as agent for the Company and the Sellers
respectively) subscribers or purchasers for, and failing which (as
principal) to subscribe for or purchase, the number of Global Offer Shares
set out against its name in Schedule 5 at the Offer Price and in either
case to make payment for value on the Settlement Date to the Sponsor (by no
later than 3.30 p.m.).
(2) Each Underwriter may elect to receive any or all of the Shares to be taken
by it pursuant to this clause in uncertificated form, in which event it
shall notify the Sponsor of the CREST account to which such Shares as are
to be taken in uncertificated form are to be credited in accordance with
clause 11(3) not later than 8.30 a.m. on the Settlement Date.
(3) The execution by each Underwriter of this agreement shall constitute its
application for such number of New Shares as it is required to subscribe
for pursuant to this clause.
Proceeds of the Global Offer
----------------------------
(1) On the Settlement Date, the Sponsor shall pay (or give instructions to the
Registrars to pay):
(a) to the Sellers the price for the Sale Shares received or payable by
the Underwriters pursuant to clause 9 (less the amounts payable by the
Sellers under clauses 14 and 15) to their bank account, details of
which have been notified to the Sponsor; and
(b) to the Company the price for the New Shares received or payable by the
Underwriters pursuant to clause 9 (less the amounts payable by the
Company under clauses 14 and 15 (as set out in the estimate of
expenses in the Agreed Form) to the Group's account at HSBC Bank plc
at its branch at Baker Street (sort code 40-01-06, account
number31242733).
(2) The Sponsor shall pay to the Sellers the price for the Shares purchased
pursuant to the option in clause 4(7) (less any amounts payable by the
Sellers) to the Sellers' bank account set out in subclause (1)(a) above.
<PAGE>
Settlement and Registration
----------------------------
(1) The Sellers and the Sponsor shall procure that upon Admission the CSFB
Nominee will hold the Sale Shares the subject of the Institutional Offer as
trustee on trust for the Placees of such Sale Shares in the proportions and
as otherwise determined by the Sponsor in accordance with this agreement.
(2) The Sponsor shall procure that upon Admission the CSFB Nominee will hold
such of the New Shares as are credited to its CREST accounts pursuant to
clause 3(1)(f) as trustee on trust for the subscribers of such New Shares,
in the proportions and as otherwise directed by the Sponsor and the Company
will instruct the Registrar to register the CSFB Nominee (Account 7) as the
holder of such New Shares in its register of members.
(3) The Sponsor shall procure the crediting of such of the New Shares and Sale
Shares as are to be received by the Placees or the Underwriters in
uncertificated form to the CREST accounts of such recipients as notified by
them or in accordance with clause 9 (subject to receipt by the Sponsor of
payment for such Shares in accordance with the terms and conditions of the
Global Offer contained in the Offer Documents or clause 9 as appropriate).
(4) The Company shall procure:
(a) the certification or re-certification by the Registrars of such number
of the New Shares and Sale Shares as are to be held in certificated
form by Employees (and Placees as the case may be) and the despatch of
share certificates in respect of such Shares to the persons (or
nominees of such persons) by whom such Shares have been subscribed or
purchased before close of business on the Settlement Date; and
(b) that the persons entitled to be registered as the holders of the Sale
Shares and the New Shares are registered promptly (in accordance with
any reasonable directions which the Sponsor may give).
(5) The obligations of the Company and the Sponsor pursuant to subclauses (3)
and (4) shall be subject:
(a) to delivery to the Sponsor of confirmation of registration details by
Placees and Employees in respect of such of the New Shares and Sale
Shares as are taken or purchased by them; and
(b) to the CREST Regulations and the CREST Rules.
Announcements
-------------
(1) Until the Announcement Date, no party to this agreement except the Sponsor
shall, and the Sellers and the Company shall procure that no Group company
shall (in response to enquiries or otherwise) make any public statement or
publish any document which relates to:
(a) the Global Offer; or
<PAGE>
(b) any Group company unless it is a normal trade announcement or
document,
except as required by law or the UK Listing Authority, the London Stock
Exchange or other competent regulatory body or with the prior written
consent of the Sponsor, such consent not to be unreasonably withheld or
delayed.
(2) The Sellers and the Company shall not, and shall procure that no Group
company shall, before the Announcement Date, 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.
(3) The Sellers and 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 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).
(4) In subclauses (1) and (3), references to making a public statement or
publishing a document include authorising or permitting another person to
do so.
Restrictions
------------
(1) The Company undertakes to the Sponsor that it will not:
(a) between the date of this agreement and the date falling 12 months
after the date of Admission, enter into any agreement or arrangement
or do or permit to be done any other act or thing which, in any case,
would give rise to any obligation to make any announcement to the UK
Listing Authority in accordance with the Listing Rules other than as a
consequence of the requirements of Part VI of the Companies Act 1985
or Part X of the Companies Act 1985 (provided not as a result of the
actions of any Director); and
<PAGE>
(b) between the date of this agreement and the date falling 12 months
after the date of Admission, enter into any agreement or arrangement
or do or permit to be done any act or thing which may involve any
increase in, or obligation (whether contingent or otherwise) to issue,
allot or grant options over, shares in the capital of the Company
(other than a grant, in accordance with normal practice, or the
exercise of options under the Company's share option schemes described
in paragraph 7 of part VI of the Price Range Prospectus) which would
require the Company to issue listing particulars under the Listing
Rules,
without, in any such case, the prior written consent of the Sponsor, such
consent not to be unreasonably withheld.
(2) Each Seller undertakes to each of the Underwriters and the Company not to
offer, lend, sell or contract to sell, mortgage, charge, assign, issue
options in respect of, or otherwise dispose of, directly or indirectly, or
announce an offering or sale of, any Shares retained by it or any other
securities exchangeable for or convertible into, or substantially similar
to, Shares (or any interest therein or in respect thereof) or enter into
any transaction with the same economic effect as, or agree to do, any of
the foregoing for a period of six months from Admission, except with the
prior consent of the Sponsor such consent not to be unreasonably withheld
or delayed.
For the purposes of this clause 13(2), "Shares" shall mean ordinary shares
in the issued share capital of the Company owned by either Seller or any of
its affiliates (or in respect of which either Seller or any of its
affiliates is interested) at the Settlement Date or owned at any later time
(including for the avoidance of doubt any other securities so owned,
exchangeable for or convertible into, or substantially similar to, the
Shares) or any rights arising from any such Shares or attached to any such
Shares at any time.
(3) Each of the Executive Directors undertakes to each of the Underwriters and
the Company not to offer, lend, sell or contract to sell, mortgage, charge,
assign, issue options in respect of, or otherwise dispose of (for the
purposes of this clause 13 a "disposal"), directly or indirectly, or
announce an offering or sale of, any Shares or any other securities
exchangeable for or convertible into, or substantially similar to, Shares
(or any interest therein or in respect thereof) or enter into any
transaction with the same economic effect as, or agree to do, any of the
foregoing for a period of six months from Admission, except with the prior
consent of the Sponsor.
For the purpose of this clause 13(3), "Shares" shall mean ordinary shares
in the issued share capital of the Company owned by relevant Executive
Director or any of his Connected Persons (or in respect of which the
relevant Executive Director or any of his Connected Persons is interested)
at the Settlement Date or owned at any later time (including for the
avoidance of doubt Shares issued to them pursuant to options granted to
them at or prior to or contingent on the Global Offer or any other
securities so owned, exchangeable for or convertible into, or substantially
similar to, the Shares) or any rights arising from any such Shares or
attached to any such Shares at any time.
<PAGE>
(4) Each Seller (for itself) and each Executive Director (for himself) shall
take reasonable steps to ensure that none of its/his Connected Persons or
affiliates (as may be appropriate) will take any of the actions referred to
in subclause (2) and (3) (as may be appropriate).
(5) Each Seller and each Director severally undertakes to each of the
Underwriters and the Company that it/he will not (and will procure that his
or its Connected Persons or affiliates shall not) take, directly or
indirectly, any action which is designed to or which constitutes or which
might reasonably be expected to cause or result in stabilisation or
manipulation of the price of any security of the Company or facilitate the
sale or resale of the Shares.
(6) For the purpose of this clause in relation to an individual a "Connected
Person" means:
(a) any person or persons acting in his or their capacity as trustee or
trustees of a trust of which such individual is the settlor, provided
that there are no persons beneficially interested under the trust
other than that individual or his spouse or any child under the age of
18; or
(b) any person who is the spouse, a sibling, a parent or a child of that
individual.
(7) The Sellers, the Company and the Executive Directors acknowledge that any
decision by the Sponsor to withhold consent in any of the circumstances
above mentioned in this clause shall not form the basis of any claim
against the Sponsor for any damage, loss, cost or expense alleged to have
been caused by such decision, unless (other than pursuant to subclause
(3)(a) above) its consent is withheld unreasonably.
(8) This clause 13 does not preclude an Executive Director or Seller, or a
person affiliated/connected with him/it, from (i) accepting any offer for
shares in the Company of a kind to which the City Code applies if it has
become or been declared unconditional in all respects or if it is
recommended for acceptance by the Company's directors, or (ii) in the case
of the Executive Directors, transferring any Shares held by him to a family
trust, or (iii) making a disposal if required by law or by any regulatory
authority, or (iv) making a disposal to satisfy any claims made a against
such person under this agreement or (v) in the case of a Seller,
transferring any Shares held by it to an affiliate or holding company of
it, but only for so long as such transferee remains an affiliate.
Commissions
-----------
(1) The selling commissions shall be borne by the Sellers and the Company in
proportion to the number of Global Shares sold or issued by them
respectively.
(2) The amount of selling commissions to be deducted from the proceeds of the
Global Offer by the Sponsor on behalf of the Underwriters is a sum equal to
4 per cent. of the Offer Price multiplied by the number of Global Offer
Shares sold or issued pursuant to the Global Offer.
<PAGE>
(3) The amounts (including any applicable VAT properly chargeable thereon,
subject to production of a valid VAT invoice) payable to the Sponsor under
this clause shall become due at the same time as the payments to be made by
the Sponsor under clause 10.
Expenses
--------
(1) All stamp duty and/or (if applicable) stamp duty reserve tax ("SDRT")
payable in connection with any transfer of the Sale Shares under the Global
Offer (and the Shares the subject of the option under clause 4(7)) by the
Sellers to the CSFB Nominee, the Placees, the Employees and/or the Sponsor
and/or to the nominee(s) of any of them (or, in relation to the Shares the
subject of the option under clause 4(7), by the CSFB Nominee and/or the
Sponsor to any transferee) (other than any stamp duty or SDRT arising
pursuant to sections 67, 70, 93 or 96 of the Finance Act 1986) shall be the
sole liability of the Sellers. If applicable the Sponsor shall be entitled
to deduct such stamp duty and/or SDRT from the payments to be made to the
Sellers under clause 10 and to pay such stamp duty on behalf of the Sellers
and to account for such stamp duty reserve tax to the Inland Revenue under
a valid regulation 4 agreement on behalf of the Sellers.
(2) The Sellers shall pay all other expenses connected with this agreement, the
Admission, the admission of the Shares as participating securities within
CREST, the Global Offer and any related arrangement, including, but not
limited to, the London Stock Exchange fee, the UK Listing Authority fee,
roadshows (including the fees of any investor relations or roadshow
advisers), and including, in particular, those for the preparation,
printing, publication, advertising and distribution of the Offer Documents,
registration and listing fees and expenses, the fees of the Registrars, the
Company's own legal fees (with the exception of the fees of Titmuss Sainer
Dechert which shall be paid by the Company), accounting fees and all
professional expenses (including the legal fees and reasonable travel,
accommodation, document production and courier costs of the Underwriters)
and any applicable tax properly incurred thereon (but not tax suffered by
the recipient of any fees as a result of the receipt of such fees)
including (without limitation), if applicable, VAT (in accordance with
clause 22) and any stamp duty and SDRT (other than pursuant to sections 67,
70, 93 or 96 of the Finance Act 1986) payable in connection with the issue
of the New Shares pursuant to the Global Offer.
(3) Any expenses which are payable under subclause (2) and which have been
incurred by the Underwriters shall become due at the same time as (and
shall be deducted from) the payments to be made by the Sponsor under and
in accordance with clause 10.
<PAGE>
(4) Expenses which the Underwriters incur, or in respect of which the
Underwriters receive an invoice, subsequent to the time payments and
deductions are made under clause 10, which are payable under subclause (2)
(and which have not already been paid by the Company), shall be invoiced by
the Underwriters as those expenses arise or the invoices are received and
shall be paid by the Company within seven days.
Warranties
----------
(1) The Company and each of the Sellers (on a several basis as between the
Company and the Sellers but jointly and severally as between the Sellers)
and the Executive Directors (on a joint and several basis) represent and
warrant to each of the Underwriters (and in the case of the Sellers to the
Company, but only to the extent of the representations and warranties in
paragraphs 2(2), 2(3) and 3(1) of Schedule 6) as at the date of this
agreement in the terms set out in Part A of Schedule 6.
(2) Each of the Non-Executive Directors (on a several basis) represents and
warrants to each of the Underwriters in the terms set out in Part B of
Schedule 6.
(3) The Company, the Sellers and each Director shall notify the Sponsor
immediately on becoming aware (whether before or after the Commencement of
Dealings) of anything which:
(a) indicates that any statement in the Prospectuses is or might be untrue
or misleading or that the Prospectuses omit or might omit any matter
whose inclusion in the Prospectuses is required by Part IV of the Act,
the Listing Rules or the UK Listing Authority; or
(b) 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) 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.
(4) The Company, each Director and the Sellers shall also notify the Sponsor
immediately upon becoming aware at any time before the Commencement of
Dealings of anything which indicates:
(a) that any statement set out in Schedule 6 or clause 4 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.
(5) The Company, each Director and the Sellers shall take all reasonable steps
promptly to provide the Sponsor with any further information which it
reasonably requests
<PAGE>
if it is notified or otherwise becomes aware of anything such as is
referred to in subclauses (3) or (4).
(6) If the Sponsor is notified or otherwise becomes aware of anything such as
is referred to in subclauses (3) or (4), the Sponsor may, if it reasonably
considers it proper to do so, require the Company at the expense of the
Company or (if appropriate) the Sellers:
(a) to prepare a supplementary listing prospectus, submit it in such terms
as the Sponsor reasonably specifies to the UK Listing Authority for
its approval and, if approved, publish it;
(b) to make an announcement in such terms and manner as the Sponsor may
reasonably specify;
(c) to despatch communications in such terms and manner and to such
persons or classes of persons as the Sponsor may reasonably specify;
and
(d) to take such additional or alternative steps (whether similar or not
to any of the foregoing) as the Sponsor may reasonably specify.
(7) The Company (in respect of the New Shares) and each Seller (in respect of
the Sale Shares and in respect of subclauses (a), (b) and (c) and in
respect of its own actions only) severally and not jointly represent,
warrant and agree with each of the Underwriters that:
(a) neither the Company, the Sellers, nor any of their affiliates (as
defined in Rule 501(b) under the Securities Act) nor any persons
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 that they
have complied and will comply with the offering restrictions
requirements of Regulation S;
(b) neither the Company, the Sellers nor any of their affiliates (as
defined in Rule 501(b) under the Securities Act) nor any person acting
on its or their behalf has taken or will take any action that would
require the registration of the Sale Shares and the New Shares under
the Securities Act;
(c) neither the Company, the Sellers nor any of their affiliates (as
defined in Rule 501(b) under the Securities Act) nor any person acting
on its or their behalf has engaged or will engage, directly or
indirectly, in any course of conduct which has constituted or might
reasonably be expected to cause or result in the stabilisation or
manipulation of the price of the Sale Shares and the New Shares or any
securities of the same class as the Sale Shares and the New Shares;
and
(d) the Company is a "foreign issuer" and reasonably believes that there
is no "substantial US market interest" (each as defined in Regulation
S) in the New
<PAGE>
Shares and Sale Shares or in any securities of the same class as the
New Shares and Sale Shares.
Tax
---
The provisions of Schedule 7 apply in relation to the Sellers' and the
Executive Directors' obligations in respect of certain tax liabilities of
the Group.
Limits on Liability
-------------------
(1) The following limits apply to the liability of the Company and the
Directors under this agreement. In this clause a person's "liability for
warranties" means the aggregate of the amounts payable by it/him by virtue
of clause 16 and "liability for warranties, indemnities and tax" means the
aggregate of the amounts payable by him by virtue of clauses 16 and 20 and
Schedule 7 (as the case may be) exclusive of any amounts payable in respect
of interest, expenses or VAT properly charged thereon.
(2) Each Executive Director's liability for warranties, indemnities and tax is
limited to the amount set opposite his name in Schedule 8.
(3) Each Non-Executive Director's liability for warranties is limited (in
addition to any limitations set out in Part B of Schedule 6):
(a) to the amount set out in Schedule 9 opposite his name; and
(b) in time such that any claim by an Underwriter for breach of any
warranty must be notified to the Non Executive Director concerned
before the second anniversary of Admission.
(4) None of the limitations contained in this clause 18 shall apply to any
claim against the Sellers, the Company or a Director which arises as a
result of fraud or wilful default.
(5) Save to the extent that the Company has failed to comply with any of its
obligations under this agreement, neither Seller nor any Director shall
seek to recover any amount from any Group company or any of its officers or
employees in connection with any claim or matter arising out of this
agreement, or seek to set off against, or to withhold from, any sum owing
to any Group company or any of its officers or employees any amount owing
by any Group company or any of its officers or employees in connection with
any such claim or matter.
(6) The liability of the Company (and in the case of paragraphs (b) and (c)
below the Directors) under clause 16(1) shall be limited as follows:
(a) it shall not exceed the subscription proceeds in respect of the New
Shares;
(b) if the Company or the Directors (as the case may be) pay to the
Underwriters an amount in respect of any liability under clause 16 and
the Underwriters subsequently actually recover from a third party a
sum which is directly referable to such liability and which is, when
added to the amount paid by
<PAGE>
the Company or the Directors (as the case may be), in excess of the
total losses incurred by the Underwriters in respect of any breaches
of clause 16 giving rise to such liability and in respect of all other
valid claims made pursuant to this agreement, the Underwriters shall
as soon as reasonably practicable repay to the Company or the
Directors (as the case may be) an amount equal to such excess after
deducting all reasonable costs, charges and expenses incurred by the
Underwriters in recovering that sum from the third party and after
deducting any amount incurred or paid by the Underwriters for taxation
(or after compensating the Underwriters for the loss of any relief or
allowance) in respect of such sum; and
(c) no claim shall be made against the Executive Directors under clause 16
unless written notice of the claim shall have been given to the
Executive Directors on or before the fourth anniversary of Admission.
(7) If any claim is made against the Sellers, the Company and/or the Directors
under the warranties or indemnities, then the liability shall be shared
between such parties in the following manner:
(a) the liability shall (in the absence of fraud or dishonesty on the part
of the Directors) firstly be met by or recovered from the Sellers and
the Company in the same ratio that the Sale Shares bear to the New
Shares; and
(b) subject thereto, the liability shall be met by or recovered secondly
from the Executive Directors and thirdly the Non-Executive Directors.
(8) Neither the Company nor any of the Directors shall have any liability under
this agreement to the Underwriters in respect of any breach by the Sellers
of the provisions of clause 4 nor are the Sellers to have any liability
under this agreement to the Company or any of the Directors save as
expressly set out in clause 4 and Schedule 7.
(9) The limits on liability contained in this clause 18 do not, for the
avoidance of doubt, affect or otherwise limit the liability of the Seller,
the Company or the Directors under the Financial Services Act 1986 or any
legislation applicable to the Global Offer or at common law.
(10) The Executive Directors shall have no liability in respect of the
Warranties in paragraph 10 of Schedule 6 to the extent that such liability
arises as a result of the Reorganisation (as defined in Schedule 7).
TERMINATION
-----------
(1) Subject to subclauses (3) and (4), no party shall have any further rights
or obligations under this agreement if any of the circumstances mentioned
in subclause (2) occurs and, before Admission becomes effective, the
Sponsor (on behalf of the Underwriters) serves or is deemed to serve on the
Company a notice (a "termination notice") which states that the Sponsor is
bringing this clause into operation and briefly describes the main events
or matters that the Sponsor considers are relevant for the purposes of
subclause (2).
<PAGE>
(2) Those circumstances are if:
(a) the Company, a Director, either Seller or the Guarantor fails to
comply with any obligation under this agreement or the Guarantee or
otherwise relating to the Global Offer and the Sponsor (on behalf of
the Underwriters) is of the opinion that such failure to comply is
material in any respect; or
(b) the Sponsor (on behalf of the Underwriters) is of the opinion that:
(i) any of the statements set out in clauses 4(1), (2) or (3) or
Schedule 6 is untrue, incorrect or misleading in any material
respect; or
(ii) an event has occurred, or is likely to occur, and that in the
light of that event any of those statements would be untrue,
incorrect or misleading in any material respect were it to be
made immediately before the service of the termination notice
and with reference to the circumstances then existing; or
(iii) any of the representations or warranties contained in clause 16
and schedule 6 is untrue, incorrect or misleading in any
material respect if deemed to be repeated as at the Settlement
Date; or
(c) without prejudice to paragraph (b), the Sponsor (on behalf of the
Underwriters) is of the opinion that an event has occurred, or is
likely to occur, and that the event:
(i) constitutes or (if it occurs) will constitute a significant
change or new matter which is material in the context of the
Global Offer; or
(ii) is or (if it occurs) will be material in the context of any
assumption or other matter relevant to any forecast or statement
about prospects in the Prospectuses which is material in the
context of the Global Offer,
and in either case will require the publication of supplementary
listing particulars; or
(d) the Sponsor is of the opinion that there has been such a change,
whether or not foreseeable at the date of this agreement, in national
or international financial, political, economic or market conditions
(including disruption to trading on any stock exchange or in any over-
the-counter market), or there has been such a change in the currency
exchange rates or exchange controls or there has been a declaration of
a general moratorium on commercial banking activities or any change in
the financial markets which, in any such case, would be likely to
prejudice the implementation of the Global Offer and distribution of
the Shares.
<PAGE>
In this subclause references to an event occurring include a state of
affairs developing and events anywhere in the world; and in paragraph (d)
"market conditions" means conditions regarding equities in the sector to
which the Company belongs or conditions regarding equities generally.
(3) If a termination notice is served or is deemed served, the Sellers shall
forthwith pay to the Underwriters the sum which the notice (or, in the case
of deemed service, a notice of expenses served on the Company) specifies is
the aggregate amount of all expenses falling within clause 15 incurred by
the Underwriters as at the date on which the termination notice is served
(or at any earlier date that is specified in the notice) (or deemed to be
served).
(4) Clauses 1, 12, 15, 18, 19, 20, 22, 27, 28 and 29 of this agreement and the
Guarantee shall remain in full force notwithstanding a termination notice.
A termination notice shall not affect any of the Sponsor's or Underwriters'
rights in connection with any breach of this agreement or otherwise and, in
particular, in relation to clauses 16, 17 and 20, and any claim against the
Guarantor made pursuant to the Guarantee.
(5) A termination notice may be served by one of the methods prescribed by
clause 27.
General Indemnity
-----------------
(1) No claim may be made by the Company or any of the Directors or the Sellers
or the Guarantor against the Sponsor or the Underwriters or any of their
respective affiliates (as defined by Rule 501(b) of Regulation D under the
Securities Act) or any person who controls the Sponsor or any Underwriter
within the meaning of section 15 of the Securities Act or section 20 of the
Exchange Act or any of their respective directors, officers, employees or
agents (each an "Indemnified Person") to recover any damage or expense
which the Company or any of the Directors or the Sellers or the Guarantor
may suffer by reason of or arising out of the performance of the Sponsor's
or Underwriters' obligations under this agreement or otherwise in
connection with the issue or sale of the Sale Shares or the New Shares, the
despatch of the Offer Documents or the fact that the Offer Documents are
untrue, inaccurate or misleading in any material respect or do not contain
all facts material to an intending subscriber or purchaser of the New
Shares or Sale Shares, except to the extent that the damage or expense is
agreed by a relevant settlement or finally judicially determined to have
arisen from that Indemnified Person's fraud, wilful default or negligence
or material breach of the Act, the rules of the UK Listing Authority, the
CREST Regulations or the CREST Rules in any such case which are directly
applicable to the Global Offer.
(2) Subject to subclauses (3) and (4) and in consideration of the Sponsor
agreeing to sponsor the application for Listing of the Shares, agreeing to
make the Global Offer on the terms of this agreement and the Underwriters
agreeing to underwrite the Global Offer on the terms of this agreement, the
Sellers (jointly and severally) and the Company (severally) and the
Executive Directors (jointly and severally) undertake with the Sponsor and
each other Indemnified Person, to indemnify each Indemnified Person against
all claims, actions, demands, proceedings, liabilities and judgements
("claims") made or established against any Indemnified Person and
<PAGE>
against all losses, costs, charges and expenses ("losses") which an
Indemnified Person may suffer or incur in connection with or arising out of
any of the following:
(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 its obligations under this agreement;
(b) the issue of any press announcements or the Offer Documents;
(c) the issue or sale of the Global Offer Shares or the despatch of share
certificates in respect of them;
(d) any press announcement or any of the Offer Documents being or being
alleged to be untrue, inaccurate, incomplete or misleading; and
(e) any breach by the Sellers, the Company, or any of the Directors of any
of their respective obligations under this agreement, the Act, the
Rules of the UK Listing Authority, the CREST Regulations, the CREST
Rules or any breach of any of the warranties, representations and
undertakings contained in this agreement or any allegation of
circumstances which constitute such a breach.
(3) The indemnity in subclause (2) above (other than in respect of paragraph
(e)) shall not extend to any claims or losses (i) to the extent that they
are agreed by a relevant settlement or finally judicially determined to
have resulted from that Indemnified Person's fraud, wilful default or
negligence or material breach of the Act, the rules of the UK Listing
Authority, the CREST Regulations or the CREST Rules in any such case which
are directly applicable to the Global Offer or (ii) which arise from the
Sponsor being required to subscribe for or purchase Global Offer Shares
pursuant to its underwriting obligations in clause 9, unless such claims or
losses are occasioned by or are attributable to or would not have arisen
but for (in each case directly or indirectly) any breach by the Sellers,
the Company or any of the Directors of any of their respective obligations
under this agreement or of any of the warranties, representations and
undertakings referred to in clauses 4(1), (2), (3), 16 or Schedule 7 or any
allegation of circumstances which constitute such a breach.
(4) If any claim is made by a third party against any Indemnified Person, the
Sellers and/or the Company may have sole conduct of the defence of any
claim or action against such Indemnified Person with counsel satisfactory
to such Indemnified Person (which shall not, except with the consent of the
Indemnified Person, be counsel to the indemnifying party) provided that:
(a) the relevant Underwriter has the right to information, consultation
and representation concerning the development and defence of any
litigation or threatened litigation;
<PAGE>
(b) no admission of liability or compromise whatsoever in connection with
the claim or action may take place without the relevant Underwriter's
prior written consent unless, following consultation with the relevant
Underwriter, such admission or compromise acknowledges that no
Indemnified Person had any responsibility for the matters giving rise
to such claim; and
(c) the relevant Underwriter or the appropriate Indemnified Person has the
right at any time on giving reasonable notice to re-assume (at its
cost thereafter) the defence of any claim or action assumed by the
Company and/or the Sellers, as applicable.
In the event that the relevant Underwriter or any other Indemnified Person
assumes or re-assumes the defence of any claim or action against an
Indemnified Person it will keep the Company and/or the Sellers, as
applicable, informed about the conduct of the proceedings, consult with the
Company and/or the Sellers, as applicable, and take account of the views of
the Company and/or the Sellers (as applicable) so far as reasonably
possible, but will have sole conduct of any proceedings or dispute that may
arise and absolute discretion with regard to the progress, negotiations and
settlement (if any) thereof.
(5) (a) Any sum payable under the indemnity contained in subclause (2) 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 any charge to taxation any sum payable under the indemnity
contained in subclause (2) (otherwise than as described at paragraph
(a)), 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 under subclause (2)(c) save where the amount payable relates
to the income of the Underwriters which, if paid, would have been
subject to tax.
(c) To the extent that an Indemnified Person subsequently receives and
retains any tax credit, allowance, repayment or relief as a result of
the Sellers, the Company or any Executive Director (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 such additional
amount, the Indemnified Person shall pay to the Sellers, the Company
or any Executive Director (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
<PAGE>
(any question as to the accrual or amount of any such economic
benefit, the order and manner of making any claim for any tax credit,
allowance, repayment or relief, and the timing of any payment, being
determined by the relevant Indemnified Person's auditors or the
Sponsor's auditors, if the relevant Indemnified Person does not have
auditors).
(6) In this clause "liability" means any kind of liability, any kind of claim,
demand or proceeding (including one made or commenced by the relevant
person concerned) or any expense, whether incurred in connection with any
claim, demand or proceeding, obtaining any form of advice or otherwise.
(7) The consent of each Indemnified Person (other than the Sponsor and the
Underwriters) is not necessary for any variation (including any release or
compromise in whole or in part of any liability) or termination of this
clause.
Stabilisation
-------------
(1) On or before the Stabilisation Period End Date, to the extent permitted by
applicable laws and regulations, the Sponsor or its agents shall be
entitled (but not obliged) to:
(a) offer Shares in excess of the aggregate number otherwise required to
be issued or sold under the Global Offer; and/or
(b) over-allocate Shares under the Global Offer or otherwise; and/or
(c) create a short position in respect of the Shares; and/or
(d) itself or through its agents, effect transactions in Shares or other
securities in any securities market or over-the-counter market or on
any stock exchange or otherwise with a view to stabilising or
maintaining the price of the Shares or other securities at a level
which might not otherwise prevail in the open market; and/or
(e) hedge any positions in the Shares or other securities and cover or
close-out or liquidate any such positions or hedging transactions
(including, for the avoidance of doubt, by making sales of Shares or
other securities); and
(f) in order to effect or facilitate any such transactions of the kind
referred to in sub-paragraphs (d) and (e), borrow in the name or for
the account of any Underwriter,
(any such transactions are referred to in this agreement as "Stabilisation
Transactions").
<PAGE>
(2) In carrying out Stabilisation Transactions the Sponsor shall act as
principal and neither the Sponsor nor its agents shall act as the agents of
the Sellers, the Company, the Underwriters or any other person. Subject to
this agreement, the exercise of the powers of the Sponsor pursuant to
subclause (1) (including, without limitation, the decision whether or not
to exercise such powers) shall be at the absolute discretion of the Sponsor
and its agents and neither the Sponsor nor any of its employees or agents
shall be responsible or liable to, or owe any duties to, the Sellers, the
Company, the Directors, any Underwriter or any other person in respect
thereof (including, without limitation, in relation to the timing of any
Stabilisation Transaction or the amount of any stabilisation loss).
VAT
---
(1) Whenever a person is obliged to pay any fee, commission or other sum to the
Underwriters under this agreement for any supply of services rendered by
the Underwriter to that person and any VAT is properly charged on it that
person shall also pay to the Underwriters 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 Underwriters under this
agreement as reimbursement for any fee, cost, charge or expense (the
"Relevant Cost") that person shall also pay to the relevant Underwriter an
amount which:
(a) if for VAT purposes the Relevant Cost is consideration for a supply of
goods or services made to the Underwriter and the Underwriter does not
charge VAT on it under subclause (1), is equal to any input VAT
incurred by the Underwriter on that supply which the Underwriter
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 Underwriter as agent on behalf of that person (other than in
circumstances where the Underwriter acts as agent within the meaning
of section 47(3) of the Value Added Tax Act 1994 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
Underwriter acting as agent by virtue of that sub-section), is equal
to any VAT paid on the Relevant Cost by the Underwriter,
and, in the case of a payment under paragraph (b) above, the Underwriter
shall use reasonable endeavours to procure that the actual supplier issues,
a valid VAT invoice directly to that person.
<PAGE>
Obligations of each Director
----------------------------
While he remains a director of the Company, each Director shall take all
reasonable steps to ensure that during the period commencing on the date of
this agreement until the Announcement Date, no person is appointed a
director of the Company unless he has first executed an undertaking with
the Sponsor (in such terms as the Sponsor may reasonably require) to comply
with the continuing obligations of the Directors under this agreement.
Changes in Directors
--------------------
The Company shall immediately 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.
Service Agreements
------------------
(1) The service agreements referred to in this clause are those of the
Executive Directors referred to in paragraph 6.1 of 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), the Company
shall not:
(a) until the Announcement Date, agree to any increase in salary or other
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
obligation or liability arising under any service agreement.
(3) The Company shall take any steps which the Sponsor reasonably requires to
preserve or enforce its rights arising under or out of any service
agreement, including the commencement of proceedings.
(4) Each Executive Director who is party to a service agreement undertakes with
the Sponsor up to the Announcement Date to comply with it, not to do
anything which would entitle the Company to terminate the agreement
summarily for cause and, except with the Sponsor's prior written consent,
not to terminate his employment before the end of the initial term set out
in the agreement.
<PAGE>
(5) Where the employer under a service agreement is not the Company but another
Group company, the references in subclauses (2), (3) and (4) to the Company
are replaced by references to that other Group company and the Company
shall procure compliance by that other Group company with those subclauses.
Compliance
----------
(1) The Company and each of the Directors (while he remains a director of the
Company) shall comply with the statutory requirements referred to in
subclause (2), and all requirements of the UK Listing Authority's Listing
Rules (including those of the model code on directors' dealings in
securities), the Combined Code, the CREST Rules and other requirements
relating to CREST and the requirements of the City Code which affect the
Company or (as the case may be) its directors.
(2) The statutory requirements for the purposes of subclause (1) are those of
the Companies Act 1985, Part V of the Criminal Justice Act 1993, the Act
and the CREST Regulations.
(3) The Company and each of the Directors (while he remains a director of the
Company) shall use reasonable endeavours to ensure that (unless the Sponsor
consents to such non-compliance) the Company complies with the Combined
Code so as to ensure that the Company is not required to make any statement
in financial reports and/or accounts for the financial year ending 31st
December, 2000 or any subsequent financial periods to the effect that it
has not complied with any aspect of that report.
Notices
-------
(1) Any notice or document to be served under this agreement may be delivered
or it may be sent by post or facsimile transmission to the party to be
served at the relevant address specified in subclause (4) or at any other
address or fax number which the party to be served may have notified to the
other parties in accordance with this clause. Any notice or other document
sent by post shall be sent by prepaid first class recorded delivery post
(if within the United Kingdom) or by prepaid airmail (if elsewhere).
(2) Any such notice or document shall be deemed to have been served:
(a) if delivered, at the time of delivery; or
(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. on any Business
Day and in any other case at 10.00 a.m. on the Business Day following
the date of despatch.
<PAGE>
(3) In proving service it shall be enough to prove that delivery was made, that
the envelope containing the notice or document was properly addressed and
posted (either by prepaid first class recorded delivery post or by prepaid
airmail, as the case may be) or that the facsimile transmission was
properly addressed and despatched, as the case may be.
(4) The following are the addresses and fax numbers of the Company, the
Directors, the Sellers and the Sponsor for the purposes of subclause (1):
<TABLE>
<CAPTION>
The Sellers The Sponsor The Company and the Directors
<S> <C> <C>
RWH 20 Colombus Courtyard C/o Robert Walters plc
Strawinskylaan 3105 London 25 Bedford Street
10772 Amsterdam E14 4DA London
The Netherlands WC2E 9HP
Fax: 0031 204 064555 Fax: 020 7888 3504 Fax: 020 7915 8730
Marked for the attention of: Marked for the attention of: Marked for the attention of:
ABN Amro Trust Company (Netherlands) Ben Phillips Company Secretary
B.V.
FAIT
1209 Orange Street
Wilmington
Delaware 19801
USA
Fax: To be advised
Marked for the attention of:
Corporation Trust Company
in each case with a copy to:
</TABLE>
<PAGE>
Edgewater Technology, Inc.
234 Millsap Road
Fayetteville
AR 72703
USA
Fax: (00 1) 501 973 7909
Marked for the attention of:
Gordon Y. Allison
Amendments
----------
(1) Subject to subclause (2), this agreement may be amended by agreement in
writing between any Executive Director on behalf of the Company and the
Directors, any executive officer on behalf of the Sellers (or any of them)
and any director of the Sponsor on its behalf and on behalf of the
Underwriters.
(2) An amending agreement does not need to be signed on behalf of the Directors
or the Sellers if the amendment which it makes does not affect in any
material respect the position under this agreement (or the other document
being amended) of an Executive Director, a Non-Executive Director or of the
Sellers (as the case may be).
(3) Subclauses (1) and (2) also apply to the documents listed in Schedule 5,
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).
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 Company undertakes with the Sponsor and the Underwriters to do all
within its power to ensure that the other Group companies comply with those
provisions of this agreement which are applicable to them.
(3) Nothing in this agreement excludes or restricts any right or remedy under
the general law (including the Act) of the Sponsor or the Underwriters and
the rights and remedies of the Sponsor and the Underwriters under this
agreement are cumulative.
(4) None of the rights or obligations under this agreement may be assigned or
transferred without the written consent of the other parties.
(5) It is acknowledged by the Sellers that nothing in this agreement
constitutes the giving of investment advice by the Sponsor to the Sellers.
This is without prejudice to the terms of the engagement letter between the
Sellers and the Sponsor dated 19th June, 2000.
(6) In this agreement "liabilities" includes obligations.
<PAGE>
(7) Except as expressly contemplated by 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) Act 1999.
(8) This agreement may be executed in any number if counterparts, all of which,
taken together, shall constitute one and the same agreement, and any party
may enter into this agreement by executing a counterpart.
(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.
AS WITNESS the hands of the parties (or their duly authorised representatives)
on the date which appears first on page 1.
<PAGE>
SIGNED by FRANK H.C. JANSEN )
as duly authorised attorney for ) FRANK H.C. JANSEN
RW HOLDING, CV. )
acting under the authority of that )
company in the presence of: )
Name: _____________________________
Address _____________________________
_____________________________
SIGNED by PETER P. DE QUAIJ ) PETER P. DE QUAIJ
as duly authorised attorney for )
FAIT, L.L.C. )
acting under the authority of that )
company in the presence of: )
Name: _____________________________
Address _____________________________
_____________________________
SIGNED by Russell Tenzer ) RUSSELL TENZER
for and on behalf of )
ROBERT WALTERS PLC )
in the presence of: )
Name: Antony Ceravolo
Address: 29 Ivor Place
London
NW1 6DA
<PAGE>
SIGNED by Russell Tenzer
as duly authorised attorney for ) RUSSELL TENZER
ROBERT WALTERS )
in the presence of: )
Name: Antony Ceravolo
Address: 29 Ivor Place
London
NW1 6DA
SIGNED by Russell Tenzer
as duly authorised attorney for ) RUSSELL TENZER
GILES DAUBENEY )
in the presence of: )
Name: Antony Ceravolo
Address: 29 Ivor Place
London
NW1 6DA
SIGNED by Russell Tenzer
as duly authorised attorney for ) RUSSELL TENZER
PETER GREENSLADE )
in the presence of: )
Name: Antony Ceravolo
Address: 29 Ivor Place
London
NW1 6DA
<PAGE>
SIGNED by Russell Tenzer ) RUSSELL TENZER
as duly authorised attorney for
DANIEL AFFOLTER )
in the presence of: )
Name: Antony Ceravolo
Address: 29 Ivor Place
London
NW1 6DA
SIGNED by Russell Tenzer RUSSELL TENZER
as duly authorised attorney for )
PHILIP AIKEN )
in the presence of: )
Name: Antony Ceravolo
Address: 29 Ivor Place
London
NW1 6DA
SIGNED by RUSSELL TENZER
RUSSELL TENZER )
in the presence of: )
Name: Antony Ceravolo
Address: 29 Ivor Place
London
NW1 6DA
<PAGE>
SIGNED by Russell Tenzer RUSSELL TENZER
as duly authorised attorney for )
TIMOTHY BARKER )
in the presence of: )
Name: Antony Ceravolo
Address: 29 Ivor Place
London
NW1 6DA
SIGNED by BEN PHILLIPS ) BEN PHILLIPS
as duly authorised attorney for )
CREDIT SUISSE FIRST BOSTON )
(EUROPE) LIMITED )
in the presence of: )
Name: Alison M. Beardsley
Address: One New Change
London
EC4M 9QQ
SIGNED by BEN PHILLIPS ) BEN PHILLIPS
as duly authorised attorney for )
WEST LB PANMURE LIMITED )
in the presence of: )
Name: Alison M. Beardsley
Address: One New Change
London
EC4M 9QQ
<PAGE>
SIGNED by BEN PHILLIPS ) BEN PHILLIPS
as duly authorised attorney for )
CHARTERHOUSE SECURITIES )
LIMITED )
in the presence of: )
Name: Alison M. Beardsley
Address: One New Change
London
EC4M 9QQ
