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EXHIBIT (b)(1)
12 JANUARY 2000
THE SAGE GROUP PLC
DEUTSCHE BANK AG LONDON
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VENDOR PLACING AGREEMENT
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CONTENTS
CLAUSE PAGE
1. DEFINITIONS................................................................1
2. CONDITIONS.................................................................4
3. PLACING AND SUBSEQUENT OFFERS AND RESALES OF THE PLACING SHARES............5
4. DELIVERY OF DOCUMENTS......................................................9
5. ALLOTMENT, PAYMENT AND REGISTRATION........................................9
6. FEES, COMMISSIONS AND EXPENSES............................................11
7. FURTHER ASSURANCES OF THE COMPANY.........................................13
8. WARRANTIES AND UNDERTAKINGS OF THE COMPANY................................14
9. INDEMNITY.................................................................19
10. UNDERTAKINGS AND ACKNOWLEDGEMENT..........................................20
11. TERMINATION AND CONTINUING PROVISIONS.....................................21
12. NOTICES...................................................................22
13. MISCELLANEOUS.............................................................23
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AN AGREEMENT made on 12 January 2000
BETWEEN
THE SAGE GROUP PLC whose registered office is at Sage House, Benton Park Road,
Newcastle-upon-Tyne, NE7 7LZ (the COMPANY); and
DEUTSCHE BANK AG LONDON of Winchester House, 0 Xxxxx Xxxxxxxxxx Xxxxxx, Xxxxxx
XX0X 0XX (DEUTSCHE BANK).
WHEREAS
(A) By an agreement dated the same date as this Agreement (the MERGER
AGREEMENT), made between Best Software, Inc. (BEST), Bobcat Acquisition Corp.
(BIDCO) and the Company, Bidco has agreed to offer, by means of the Tender Offer
Documentation, to acquire from the Vendors all shares of the issued and
outstanding common stock, no par value, of Best on a fully diluted basis (the
STOCK) and proposes to satisfy the consideration for such acquisition from the
proceeds of the allotment and issue to the persons nominated by Deutsche Bank or
to Deutsche Bank (as the case may be) of 43,707,488 new ordinary shares in the
capital of the Company (the PLACING SHARES), credited as fully paid (such shares
to rank, upon issue, in all respects pari passu with the existing issued
ordinary shares of the Company, save that they will not rank for any final
dividend in respect of the year ended 30 September 1999 declared in respect of
such ordinary shares). The Placing Shares to be offered by Deutsche Bank, as
agent of the Company, are being offered and sold only (i) outside the United
States in reliance on Regulation S under the Securities Act of 1933, as amended,
(the SECURITIES ACT) or (ii) in the United States to qualified institutional
buyers (as defined in Rule 144A of the Securities Act, a QIB) in reliance on an
exemption from registration requirements in Section 4(2) of the Securities Act.
(B) Deutsche Bank is willing to procure investors (other than the Vendors) to
accept the allotment of or, to the extent that it does not do so, itself as
principal to accept the allotment of the Placing Shares in accordance with the
provisions of this Agreement (the PLACING) on terms that the aggregate value of
the Placing Shares will be used to enable Bidco to fulfil its obligations under
the Merger Agreement and the Tender Offer Documentation.
IT IS AGREED as follows:
DEFINITIONS
1.1 In this Agreement (including the Recitals) the following expressions
shall, except where the context otherwise requires, have the following meanings:
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ACQUISITION means the proposed acquisition by Bidco of the Stock pursuant to the
Tender Offer Documentation;
ACT means the Companies Act 1985;
ADMISSION means the admission of the Placing Shares to the Official List of the
London Stock Exchange;
ADMISSION CONDITION means the condition set out in clause 2.1(d);
BEST SHARES has the meaning set out in clause 2.1(a);
BIDCO has the meaning set out in Recital (A);
COMMISSION means the United States Securities and Exchange Commission;
CONDITIONS has the meaning set out in clause 2.1;
CREST means the system of paperless settlement of trades and the holding of
Uncertificated Shares administered by CRESTCo;
CRESTCo means CRESTCo Limited, a company incorporated under the laws of England
and Wales;
DEALING DAY means any day on which the London Stock Exchange is open for
business in London;
DIRECTORS means the directors for the time being of the Company;
DRAFT TENDER OFFER DOCUMENTATION means the latest draft of the Tender Offer
Documentation as at the date of this Agreement in the agreed form;
EXISTING SHARES means the ordinary shares of 1 xxxxx each in the capital of the
Company in issue at the date of this Agreement;
FSA means the Financial Services Act 1986;
FULLY DILUTED BASIS has the meaning given to it in the Tender Offer
Documentation;
GROUP has the meaning given in clause 8.1(d) and, for the avoidance of doubt,
will not be taken to include any entities acquired pursuant to the Acquisition;
LISTING RULES means the listing rules made by the London Stock Exchange pursuant
to Part IV of the FSA (as amended from time to time);
LONDON STOCK EXCHANGE means the London Stock Exchange Limited;
MERGER has the meaning given to it in the Merger Agreement;
MERGER AGREEMENT means the agreement referred to in Recital (A);
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MINIMUM CONDITION has the meaning set out in clause 2.1(a)(ii);
NON-US PERSON has the meaning set out in clause 3.5(i);
OPTION AGREEMENT means the share option agreement between the Company and Mr.
Xxxxxxx Xxxxxxx in the agreed form;
ORDINARY SHARES means ordinary shares of 1 xxxxx each in the capital of the
Company;
PLACING has the meaning set out in Recital (B);
PLACEES has the meaning set out in clause 3.1;
PLACING LETTER means the agreed form of letter to be despatched by Deutsche Bank
to the Placees inviting them to agree to acquire the Placing Shares;
PLACING LIST has the meaning set out in clause 3.3;
PLACING PRICE means the price per Placing Share (which shall be not less than
621.5 xxxxx per share) at which those Placing Shares for which Deutsche Bank
shall have procured investors pursuant to clause 3.1(a) are to be issued as
determined by Deutsche Bank following the tender process and to be set out in
the Placing Letters;
PLACING SHARES has the meaning set out in Recital (A);
PRESS ANNOUNCEMENTS means the press announcements to be issued in the United
Kingdom (the UK PRESS ANNOUNCEMENT) and the United States respectively, in the
form of the agreed drafts;
QIBS has the meaning set out in Recital (A);
REGULATION S has the meaning set out in clause 3.5(i);
RULE 144A has the meaning set out in clause 3.5(i);
SECURITIES ACT has the meaning set out in Recital (A);
SECURITIES ACT AFFILIATE has the meaning set out in clause 3.3;
STOCK has the meaning set out in Recital (A);
TENDER OFFER means the US tender offer by Bidco to acquire the Stock;
TENDER OFFER DOCUMENTATION means the Schedule 14-D-1 document and the associated
letter of transmittal to be issued by Bidco in connection with the Acquisition;
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TENDER OFFER FORCE MAJEURE CONDITION means the condition set out in Section 14c
(Conditions of The Offer) in the offer to purchase comprising part of the Draft
Tender Offer Documentation;
UNCERTIFICATED SHARES means those Placing Shares which will be delivered to
Placees in uncertificated form pursuant to the Uncertificated Securities
Regulations 1995;
VENDORS means the holders of the Stock; and
WARRANTIES means the representations, warranties and undertakings set out in
clause 8.
1.2 References to the Recitals and clauses are to the Recitals to, and
clauses of, this Agreement (except where the context otherwise requires).
1.3 The expressions HOLDING COMPANY, SUBSIDIARY and SUBSIDIARY UNDERTAKING
shall have the meanings given to those terms by the Act.
1.4 Any reference to an AGREED DRAFT or AGREED FORM is to the form of the
relevant document agreed by or on behalf of the Company and, for the purposes of
its commitments hereunder, by or on behalf of Deutsche Bank and initialled by
them or on their behalf (in each case with such amendments as may be agreed by
or on behalf of the Company and Deutsche Bank).
1.5 Any reference to an enactment is a reference to it as from time to time
amended, consolidated or re-enacted (with or without modification) and includes
all instruments or orders made thereunder.
1.6 Words denoting the singular include the plural and vice versa. Words
importing gender shall include all genders and words denoting persons shall
include corporations, unincorporated associations and partnerships.
1.7 References in this Agreement to the word MATERIAL shall mean material in
the context of the Placing or the underwriting of the Placing.
CONDITIONS
2.1 Deutsche Bank's obligations under clause 3.1 are conditional upon each of
the following conditions (the CONDITIONS) having been satisfied:
(a)(i) without prejudice to paragraph (ii) below, each of the conditions
to the Tender Offer, save only for the Admission Condition, having
been satisfied or (except for the Minimum Condition) waived; and
(ii) there having been validly tendered and not withdrawn prior to the
expiration of the Tender Offer that number of shares of Best (BEST
SHARES) which, when added to the Best Shares then owned by Bidco,
if any, represents at least a majority of the Best Shares
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outstanding on a fully diluted basis (without giving effect to an
option held by Sage to purchase 19.9% of the outstanding Best
Shares) (the MINIMUM CONDITION), and the Tender Offer not having
been terminated in accordance with its terms;
(b) the release of the UK Press Announcement in accordance with clause 7.1;
(c) the Company having allotted the Placing Shares in accordance with clause
5 (conditional only upon satisfaction of the Admission Condition); and
(d) the Admission of the Placing Shares becoming effective in accordance with
paragraph 7.1 of the Listing Rules by 8.00 a.m. on any day until and
including 29 February 2000.
Deutsche Bank may, in its absolute discretion, agree to extend the time for
satisfaction of any of the Conditions (including the timing for Admission) to
not later than 8.00 a.m. on 31 March 2000 (in which case, references to such
Condition in this Agreement shall be to such Condition as so varied) or to waive
the satisfaction of any of the Conditions (except for the Admission Condition).
2.2 The Company will use all reasonable endeavours to procure the
satisfaction of the Conditions by the specified times and dates.
2.3 If any of the Conditions is not satisfied or (except for the Admission
Condition) waived by Deutsche Bank in its absolute discretion on or by the
required times or dates therefor (including any extension pursuant to clause
2.1), the obligations of Deutsche Bank under this Agreement shall cease and
determine.
PLACING AND SUBSEQUENT OFFERS AND RESALES OF THE PLACING SHARES
3.1 Deutsche Bank hereby undertakes, subject to the Conditions and in
reliance upon the representations, undertakings, covenants and warranties of the
Company set out in this Agreement (including the Warranties):
(a) as agent for the Company to procure investors (to such extent as Deutsche
Bank shall in its absolute discretion determine) to acquire the Placing
Shares (PLACEES) in accordance with a tender process discussed with the
Company, and on the terms and conditions set out in the Placing Letter;
and
(b) to the extent it does not procure such investors who have agreed to
acquire the Placing Shares at not less than 621.5 xxxxx per Placing
Share, itself to acquire as principal such Placing Shares at 621.5 xxxxx
per Placing Share,
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in all cases free of all stamp duty, stamp duty reserve tax and other expenses.
3.2 Subject to the terms and conditions of this Agreement, the Company
authorises Deutsche Bank, as its agent, to issue or cause to be issued copies of
the UK Press Announcement together with Placing Letters to such persons outside
the United States as Deutsche Bank shall in its absolute discretion determine
for the purpose of arranging the Placing on the terms and conditions set out in
the Placing Letter and, in the United States, the UK Press Announcement and the
Placing Letter can only be issued to US persons that are reasonably considered
by Deutsche Bank to be QIBs.
3.3 Deutsche Bank shall give the Company written notice, by 5.00 p.m. on 13
January 2000, listing the name of each Placee and the number of Placing Shares
to be allotted to each Placee (the PLACING LIST). For the avoidance of doubt,
Deutsche Bank may (at its absolute discretion) nominate itself in the Placing
List to be a Placee at the Placing Price in respect of some or all of the
Placing Shares. Deutsche Bank agrees that all offers of Placing Shares by
Deutsche Bank and its affiliates (as defined in Rule 501(b) of Regulation D
under the Securities Act, a SECURITIES ACT AFFILIATE) into the United States
will cease upon the filing of the Schedule 14D-1 by Bidco.
3.4 The Company hereby irrevocably and unconditionally appoints Deutsche Bank
as its agent for the purpose of effecting the Placing under Clause 3.1(a) on the
terms and subject to the conditions set out in this Agreement and the Placing
Letter and solely on the basis of the information contained in the UK Press
Announcement and other information published by the Company. Deutsche Bank
hereby accepts such appointment. The Company hereby confirms that this
appointment confers on Deutsche Bank all powers, authorities and discretions on
behalf of the Company which are reasonably necessary for, or reasonably
incidental to, the Placing and the Company hereby agrees to ratify and confirm
everything which Deutsche Bank may lawfully do in the exercise of that
appointment and those powers, authorities and discretions.
3.5 Offer and Sale Procedures: Deutsche Bank and the Company hereby establish
and agree to observe the following procedures in connection with the offer and
sale of the Placing Shares:
(i) Offers and Sales Only to QIBs or Regulation S Persons: Offers and sales
of the Placing Shares will be made on behalf of the Company only through
Deutsche Bank or Securities Act Affiliates thereof qualified to do so in
the jurisdictions in which such offers or sales are made. Each such offer
or sale shall only be made (a) in the United States to persons whom the
offeror or seller reasonably believes to be QIBs in transactions meeting
the requirements of Rule 144A under the Securities Act (RULE 144A) or (b)
to non-US persons (as defined in Regulation S) outside the United States
(a NON-US PERSON) in accordance with Rule 903 of Regulation S under the
Securities Act (REGULATION S);
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(ii) No General Solicitation; No Directed Selling Efforts: No general
solicitation or general advertising (within the meaning of Rule 502(c)
under the Securities Act) will be used in connection with the offering of
the Placing Shares or in any manner involving a public offering within
the meaning of Section 4(2) of the Securities Act; no directed selling
efforts (as that term is defined under Regulation S) will be used in
connection with the offering of Placing Shares pursuant to Regulation S;
(iii) Purchase by Non-bank Fiduciaries: In the case of a non-bank purchaser
acting as a fiduciary for one or more third parties in connection with an
offer and sale pursuant to sub-paragraph (i) hereof, each third party
shall, in the judgment of Deutsche Bank, be a QIB or a non-US person
outside the United States;
(iv) Subsequent Purchaser Notification: Deutsche Bank will take reasonable
steps to inform, and cause each of its Securities Act Affiliates to take
reasonable steps to inform, persons acquiring Placing Shares through
Deutsche Bank or its Securities Act Affiliates, as the case may be, on
behalf of the Company that such Placing Shares (a) have not been and will
not be registered under the Securities Act, (b) are being sold to them
without registration under the Securities Act in reliance on an exemption
from the registration requirements of the Securities Act provided in
Section 4(2) thereof and (c) may not be offered, sold or otherwise
transferred except (i) to the Company, (ii) outside the United States in
accordance with Regulation S or (iii) inside the United States in
accordance with Rule 144A to a person whom the seller reasonably believes
is a QIB that is purchasing such Placing Shares for its own account or
for the account of a QIB to whom notice is given that the offer, sale or
transfer is being made in reliance on Rule 144A;
(v) Restrictions on Transfer: The transfer restrictions and the other
provisions set forth in the Placing Letter in the "Notice to Investors"
section shall apply to the Placing;
(vi) Delivery of Placing Letter: In connection with the original distribution
of the Placing Shares, Deutsche Bank shall deliver to each purchaser to
whom Deutsche Bank procures as a Placee, a copy of the Placing Letter, as
amended and supplemented as of the date of such delivery; and a letter of
confirmation shall be required from each such Placee;
(vii) Blue Sky Laws: Deutsche Bank will comply with the restrictions with
respect to resales of the Placing Shares in accordance with applicable
requirements of the securities or Blue Sky laws of the various states in
the United States; and
(viii) Broker-Dealer Requirements. All offers and sales of the Placing Shares in
the United States will be effected only in accordance with all applicable
United States broker-dealer requirements.
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3.6 Resale Pursuant to Rule 903 of Regulation S: Deutsche Bank understands
that the Placing Shares have not been and will not be registered under the
Securities Act and may not be offered or sold within the United States except
pursuant to an exemption from the registration requirements of the Securities
Act. Deutsche Bank represents and agrees that, except as permitted herein, it
will only procure Placees outside the U.S. (i) as part of its distribution at
any time and (ii) otherwise until 40 days after the later of the date upon which
the offering of the Placing Shares commences and the settlement date in respect
of the Placing Shares only in accordance with Rule 903 of Regulation S.
Accordingly, neither it nor it's Securities Act Affiliates or any persons acting
on its or their behalf have engaged or will engage in any directed selling
efforts with respect to the Placing Shares, and Deutsche Bank, its Securities
Act Affiliates and any person acting on its or their behalf have complied and
will comply with the offering restriction requirements of Regulation S. Terms
used in this paragraph have the meanings given to them by Regulation S.
3.7 No substantial US Market Interest: The Company reasonably believes at the
commencement of the Placing that there will be no "Substantial US Market
Interest" (as such term is defined in Rule 902(n)(2) under the Securities Act).
3.8 Covenants of the Company: The Company covenants with Deutsche Bank that
it will not and will cause its Securities Act Affiliates not to make any offer
or sale of securities of the Company within six months after completion of the
Placing if, as a result of the doctrine of "integration" referred to in Rule 502
under the Securities Act, such offer or sale would render invalid the exemption
from the registration requirements of the Securities Act provided by Section
4(2) thereof or by Rule 144A or by Regulation S or otherwise.
3.9 Additional Covenants of Company: The Company further covenants with
Deutsche Bank as follows:
(i) Rule 144A Information: that, in order to render the US Shares eligible
for resale pursuant to Rule 144A under the Securities Act, it will make
available, upon request, to any holder of US Shares or prospective
purchasers of US Shares designated by the relevant holder the information
specified in Rule 144A(d)(4), unless the Company furnishes information to
the Commission pursuant to Section 13 or 15(d) of the Securities Act or
is exempt from reporting pursuant to Rule 12g3-2(b) under the Securities
Exchange Act of 1934;
(ii) Rule 144(A)(d)(3): the Placing Shares satisfy the requirements set forth
in Rule 144A(d)(3) under the Securities Act; and
(iii) Opinion: that it will use its reasonable best efforts to cause its U.S.
counsel to provide to Deutsche Bank prior to the settlement date in
respect of the Placing Shares in a form reasonably satisfactory to
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Deutsche Bank's U.S. counsel, a favourable opinion stating that the
Placing Shares offered and sold by the Company in the manner prescribed
in this Agreement, will not require registration under the Securities
Act.
DELIVERY OF DOCUMENTS
4.1 The Company shall deliver to Deutsche Bank forthwith upon its execution
of this Agreement:
(a) a certified copy of the minutes of a meeting of the Directors (or a duly
authorised committee thereof) in the agreed form approving and
authorising, inter alia, the execution by the Company of this Agreement
and the Merger Agreement, the making of the Tender Offer, the signing of
a London Stock Exchange form of application for listing in respect of the
Placing Shares on behalf of the Company and the issue of the Press
Announcements;
(b) a certified copy of the minutes of the meeting of the Directors at which
any committee referred to in clause 4.1(a) was appointed;
(c) a certified copy of the minutes of the meeting of the members of the
Company authorising the Directors to allot, inter alia, the Placing
Shares; and
(d) copies of the Press Announcements, the Merger Agreement and the Draft
Tender Offer Documentation in the agreed forms, signed for the purpose of
identification by a Director or other person duly authorised to do so as
stated in the minutes.
4.2 The Company shall, from time to time, procure to be communicated or
delivered to Deutsche Bank all such information and documents (signed by the
appropriate person where so required) as Deutsche Bank may reasonably require to
enable it to discharge its obligations hereunder or pursuant to the Placing or
as may be required to comply with the requirements of the London Stock Exchange.
ALLOTMENT, PAYMENT AND REGISTRATION
5.1 Subject to Deutsche Bank having complied with its obligations under
Clause 3.3, the Company shall deliver to Deutsche Bank by 7.00 a.m. on the day
of Admission (or such later time and/or date as the Company and Deutsche Bank
may agree in writing) a certified copy of the minutes of a meeting of the
Directors (or of the duly authorised committee referred to at clause 4.1(a)) in
the agreed form allotting the Placing Shares to the Placees and at the price(s)
stated, and in the proportions specified, in the Placing List, subject only to
the satisfaction of the Admission Condition.
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5.2 The Placing Shares shall be allotted and issued fully paid up and free
from all claims, charges, liens, equities, encumbrances and other third party
rights of any nature whatsoever and shall rank pari passu in all respects with
the Existing Shares including the right to receive dividends and other
distributions hereafter declared, paid or made in respect of such shares save
that they shall not rank for the proposed final dividend of 0.233 xxxxx (net)
per share in respect of the year ended 30 September 1999.
5.3 Following allotment by the Company of the Placing Shares in accordance
with clause 5, Deutsche Bank shall on behalf of the Company inform the London
Stock Exchange that the Placing Shares have been allotted subject only to the
satisfaction of the Admission Condition and request the London Stock Exchange to
undertake all such steps as are necessary for Admission to occur as soon as
practicable thereafter and in any event by 8.00 a.m. on the day of allotment of
the Placing Shares (or such later time and/or the date as the Company and
Deutsche Bank may agree in writing).
5.4 On the day of Admission (or such later date as may be agreed between
Deutsche Bank and the Company), subject to the Admission Condition having been
satisfied, Deutsche Bank shall make or procure payment to the account of the
Company (acting as trustee for the benefit of Sky Software Limited and at such
bank account as the Company shall notify to Deutsche Bank) of (less any
deductions permitted to be made under clause 6.2 and clause 6.4):
(a) an amount equal to the Placing Price multiplied by the number of Placing
Shares for which Deutsche Bank procures investors pursuant to clause
3.1(a); and
(b) an amount equal to 621.5 xxxxx multiplied by the number of Placing Shares
which Deutsche Bank itself is obliged to acquire pursuant to clause
3.1(b).
The receipt of such amounts in such account shall be an absolute discharge of
Deutsche Bank's obligations hereunder, and the obligations of the Placees, in
respect of all amounts payable (whether to the Vendors or otherwise) in respect
of the allotment and issue of the Placing Shares (whether or not such amount is
sufficient to satisfy the consideration payable under the Tender Offer or
pursuant to the Merger Agreement) and the Company acknowledges that it shall
have no right or interest whatsoever in any amounts received subsequently by
Deutsche Bank from the Placees. Deutsche Bank acknowledges that it shall have no
recourse against the Company if it fails to receive the relevant amounts from
the Placees.
5.5 The Company shall procure that, with effect from Admission, all Placing
Shares which are Uncertificated Shares are credited to the CREST stock account
of Deutsche Bank, being Participant Code 490.
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5.6 Other than in respect of Placing Shares (if any) of which it has
nominated itself to be a Placee or which it acquires as principal pursuant to
clause 3.1(b), Deutsche Bank shall hold the Placing Shares received by it
pursuant to clause 5.5 as nominee on behalf of the Placees entitled thereto,
pursuant to this Agreement and/or the Placing Letter, in each case until the
transfer of legal title to such persons has been effected through CREST except
insofar as any such Uncertificated Share is dealt with in a different manner in
accordance with the terms of the relevant Placing Letter.
5.7 The Company shall procure that its registrars shall, as soon as
reasonably practicable following Admission, (without a registration fee being
payable by Deutsche Bank and/or the Placees) register Deutsche Bank and/or those
Placees procured by it, as holders of the Placing Shares with effect from
Admission and shall as soon as reasonably practicable following Admission, and
in any event by not later than the second dealing day following Admission:
(a) register Deutsche Bank as the holder of the relevant Placing Shares which
are Uncertificated Shares (as nominee on behalf of the Placees entitled
thereto or as principal in respect of the Placing Shares (if any) of
which it has nominated itself to be a Placee or which it acquires as
principal pursuant to clause 3.1(b)); and
(b) deliver to Deutsche Bank or as it shall direct fully paid share
certificates in respect of the Placing Shares which are not
Uncertificated Shares and shall, pending such delivery, certify all
transfers of such Placing Shares against the Company's register of
members.
5.8 In the event of any difficulties or delays in the admission of the
Company's securities to CREST or the use of CREST in relation to the Placing,
the Company and Deutsche Bank may agree that all of the Placing Shares should be
issued in certificated form and the provisions in this Agreement relating to the
placing arrangements will then be deemed to be modified accordingly.
5.9 The Company agrees that any Placing Shares delivered in the United States
in certificated form shall contain a legend containing the restriction on
transfer information contained in the "Notice to Investor" section of the
Placing Letter.
FEES, COMMISSIONS AND EXPENSES
6.1 The Company shall pay to Deutsche Bank for its services hereunder:
(a) whether or not Deutsche Bank's obligations under clause 3.1 become
unconditional or this Agreement is terminated by Deutsche Bank in
accordance with its terms, a commitment commission of one half of one per
cent. of a sum equal to the Placing Price multiplied by the number of
Placing Shares in respect of the first thirty days of Deutsche Bank's
commitment hereunder (such period commencing on the date of this
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Agreement) or if less the period commencing on the date of this Agreement
up to and including the date on which Deutsche Bank's obligations
hereunder shall cease and determine;
(b) whether or not Deutsche Bank's obligations under clause 3.1 become
unconditional or this Agreement is terminated by Deutsche Bank in
accordance with its terms, an additional commitment commission of 1/8th
of one per cent. of a sum equal to the Placing Price multiplied by the
number of Placing Shares for each and every period of seven days or part
thereof (if any) commencing on the day next following the expiry of the
thirty day period referred to in paragraph (a) above, up to and including
the earlier of (i) the date on which the Admission Condition is satisfied
and (ii) the date on which Deutsche Bank's obligations hereunder shall
cease and determine; and
(c) an advisory and underwriting fee as provided in the engagement letter
between Deutsche Bank and the Company dated 7 January 2000,
together in each case with value added tax thereon, if any.
Any fees and commissions payable to Placees shall be paid by Deutsche Bank.
6.2 In addition to the commissions referred to in Clause 6.1, the Company
shall pay all other costs and expenses (excluding fees and/or commissions
payable to Placees) of, and in connection with, the Merger Agreement, the Tender
Offer Documentation, this Agreement, the allotment and issue of the Placing
Shares, the Placing and securing Admission including (but not limited to) the
London Stock Exchange listing fees, printing and advertising costs, postage, its
own and Deutsche Bank's legal expenses, Deutsche Bank's out-of-pocket expenses,
all accountancy and other professional fees and all stamp duty and stamp duty
reserve tax and other duties and taxes in relation to the allotment or issue of
Placing Shares pursuant to this Agreement (including, for the avoidance of
doubt, to investors in the United States). The Company shall promptly following
a request by Deutsche Bank pay or reimburse the amount of any costs and expenses
incurred by Deutsche Bank which are to be borne by the Company and which
Deutsche Bank has paid on behalf of the Company. The Company hereby authorises
Deutsche Bank to deduct from any sums payable by it to the Company the
commissions, fees and expenses (and related value added tax, if any) payable by
the Company pursuant to this Clause 6.
6.3 Where, pursuant to this Agreement, a sum is reimbursed to Deutsche Bank,
the Company shall, in addition, pay to Deutsche Bank in respect of value added
tax:
(a) where the payment (or any part of it) constitutes the consideration (or
part of it) for any supply of services by Deutsche Bank to the Company,
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such amount as equals any value added tax payable thereon and on such
irrecoverable value added tax, if any, as is referred to in (b) below;
(b) (except where the payment falls within (c) below), such amount as equals
any value added tax charged to Deutsche Bank in respect of any cost,
charge, duty, tax or expense which gives rise to the payment and which is
not recoverable by Deutsche Bank by repayment or credit; and
(c) on any reimbursement of or other payment to Deutsche Bank in respect of
or indemnification for costs, charges, duties, taxes or expenses incurred
by Deutsche Bank as agent for the Company, such amount as equals the
amount included in the costs, charges, duties, taxes or expenses in
respect of value added tax.
6.4 The commissions and fee referred to in clause 6.1 (together with any
related amounts payable under clause 6.3) shall be paid (where applicable), if
Admission occurs, by deducting such amounts from the payments to be made by
Deutsche Bank under clause 5.4 or, if earlier by payment in cleared funds by the
Company, not later than two dealing days after the date on which Deutsche Bank's
obligations under this Agreement cease and determine pursuant to clause 2 or are
terminated pursuant to clause 11.
FURTHER ASSURANCES OF THE COMPANY
7.1 The Company undertakes to Deutsche Bank at the Company's expense:
(a) to procure publication of the UK Press Announcement through the
Regulatory News Service (as defined in the Listing Rules) as soon as
reasonably practicable and, in any event, by no later than 8.00 a.m.
today;
(b) to deliver to the London Stock Exchange all such further documents as and
when required by the London Stock Exchange in connection with the
Company's application for the Admission of the Placing Shares in
accordance with its rules and requirements;
(c) to supply all such information, pay such fees, give such undertakings and
do or procure to be done all such acts or things as may be required by
the London Stock Exchange to procure Admission;
(d) to procure that the Tender Offer Documentation is despatched to the
Vendors by 19 January 2000;
(e) to execute and/or provide or procure to be executed or provided all such
documents and to do or procure to be done all such other acts and things
as are necessary to cause the Placees to receive the entire right, title
and interest to and in the Placing Shares pursuant to this Agreement and
the Placing and to enable the provisions of this Agreement and the
Placing to be carried out and given full force and effect; and
PAGE 13
16
(f) subject to clause 7.3, to use its reasonable endeavours to procure that
(so far as lies within its control) the Acquisition is completed and the
Merger Agreement becomes unconditional in all respects and is not
terminated in accordance with its terms and that the Merger is completed
in accordance with the Merger Agreement.
7.2 Deutsche Bank undertakes to give the Company all reasonable assistance
(at the expense of the Company) in connection with clause 7.1 and obtaining
Admission.
7.3 The Company further undertakes that it will not, except as previously
agreed in writing by Deutsche Bank:
(a) agree to any (i) alteration, revision or amendment of any of the terms or
conditions of the Merger Agreement or the Tender Offer Documentation
(including, without limitation, any alteration, revision or amendment
which materially affects any of the conditions set out in the Draft
Tender Offer Documentation) or waive, vary, compromise or release any
obligation or condition (including, without limitation, any reduction of
the number of Best Shares required to satisfy the Minimum Condition) or
grant any other time for performance or completion thereof or other
indulgence thereunder which, in any such case, is material; or (ii)
alteration to or increase in the consideration payable to the Vendors
under the Tender Offer; or
(b) proceed to completion of the Merger Agreement or the Acquisition prior to
the satisfaction of all of the terms and conditions set out in the Merger
Agreement and the Tender Offer Documentation (including, without
limitation, the Draft Tender Offer Documentation) which are material; or
(c) should it be aware prior to Admission that it is entitled to rescind or
terminate the Merger Agreement or the Acquisition, exercise its right to
proceed with completion of, or (subject to Deutsche Bank's agreement not
being unreasonably withheld or delayed) to terminate, the Merger
Agreement or the Acquisition.
7.4 The Company's obligations under clause 7.3 shall cease to apply in the
event of Deutsche Bank terminating its obligations under this Agreement.
WARRANTIES AND UNDERTAKINGS OF THE COMPANY
8.1 The Company represents, warrants and undertakes to Deutsche Bank that:
(a) application will be made by the Company to the London Stock Exchange in
accordance with section 143 of the Financial Services Act 1986 for
admission of the Placing Shares to the Official List of the London Stock
Exchange;
PAGE 14
17
(b) the information (other than expressions of opinion, intention or
expectation) contained in each of the Press Announcements is true and
accurate in all material respects, is in accordance with the facts and is
not misleading and each expression of opinion, intention or expectation
(including any forecast or estimate of profits or dividends) contained in
each of the Press Announcements is fairly based and honestly held by each
of the Directors and has been made reasonably and on reasonable grounds
after due and careful consideration and there are no other facts known,
or which could on reasonable enquiry have been known, to the Company or
to its Directors which are not disclosed in each of the Press
Announcements the omission of which would make any such statement of fact
or expression of opinion, intention or expectation false or misleading or
which would affect the import of any information contained therein or
which, in the context of the Placing, is or would be material for
disclosure to Deutsche Bank or to a Placee;
(c) following the issue of the UK Press Announcement in accordance with
clause 7.1(a), all information which it is necessary for the Company to
notify to comply with the FSA and the Listing Rules will have been
notified to the Company Announcements Office of the London Stock Exchange
and all statements of fact so notified will have been true and accurate
in all material respects at that time and not misleading at that time
(whether by xxxxxxxx or otherwise) and all expressions of opinion,
intention or expectation so notified will have been made on reasonable
grounds and will have been fairly based and honestly held; the Company is
not aware of any circumstances (other than in connection with the Tender
Offer or the Merger Agreement) now subsisting or proposed or likely to
come about which are likely to lead to any obligation on the Company to
make any announcement through or notification to the London Stock
Exchange within a period of one month commencing on the date of
Admission, except for any announcement or notification which is required
under the Listing Rules in connection with the Company's annual general
meeting in February 2000;
(d) the audited consolidated balance sheet of the Company and its subsidiary
undertakings (GROUP) as at 30 September 1998, the audited consolidated
profit and loss account of the Group for the financial year ended on such
date and the statement of cash flows of the Group for such financial year
and the notes to such financial statements (together with the remainder
of the annual report and accounts of the Company for that year being
referred to herein as the ACCOUNTS) give a true and fair view of the
assets, liabilities (including contingent liabilities whether for
taxation or otherwise), reserves, profits (or losses) and state of
affairs of the Group as at such date and the financial year ended on that
date and the Accounts have been prepared in accordance with the Act and
all applicable statements of standard accounting practice and with
generally accepted accounting principles and practice consistently
applied; that all statements of fact contained in the Accounts concerning
the financial or
PAGE 15
18
trading position or prospects of the Group were at the date of approval
of the Accounts by the board of directors of the Company true and
accurate in all material respects and were not at the date of approval of
the Accounts by the board of directors of the Company misleading in any
material respect; that all expressions of opinion, intention or
expectation on the part of the directors of the Company contained in the
Accounts concerning the financial or trading position or prospects of the
Group were at that date made on reasonable grounds and were fairly based
and honestly held and that since such date and, save as disclosed in the
Accounts or any document (PRIOR DOCUMENT) issued or announcement (PRIOR
ANNOUNCEMENT) made to the public or the press or the London Stock
Exchange by the Company since that date, the operations of the Group have
been carried on in the ordinary and usual course and there has been no
material adverse change in the financial or trading position or prospects
of the Group and no contracts or commitments of an unusual or onerous
nature (other than the Merger Agreement) have been entered into by any
member of the Group which are material;
(e) the unaudited preliminary results of the Group for the year ended 30
September 1999 (PRELIMINARY RESULTS) were prepared with all due care and
attention and have been properly compiled in accordance with all
applicable statements of standard accounting practice and on a basis
consistent with the accounting policies and principles applied in the
preparation of the Accounts, and fairly set out the results of the Group
for the year ended on that date, and all statements of fact contained in
the Preliminary Results are true and accurate and are not misleading and
all expressions of opinion, intention and expectation which are contained
in the Preliminary Results concerning the financial position or prospects
of the Group were made on reasonable grounds, were honestly held and were
fairly based;
(f) the entry into of this Agreement and the Merger Agreement and the
publication of the Tender Offer Documentation by the Company and/or Bidco
(as the case may be) and the performance of the Company's and/or Bidco's
(as the case may be) obligations thereunder (including, without
limitation, the allotment and issue of the Placing Shares and the payment
of the commissions, fees and expenses) are within the powers of the
Company and/or Bidco and their respective directors without the need for
any further sanction or consent by members of the Company or any class of
them or any other person and will comply with all relevant requirements
of the Act, the rules and regulations of the London Stock Exchange, the
FSA and all other applicable laws, rules and regulations and with all
agreements to which any member of the Group is a party or by which it or
any of them or its or any of their property is bound and will not
infringe any limits, restrictions, obligations or commitments of any
member of the Group howsoever arising and the Placing Shares will, upon
issue, be free from
PAGE 16
19
all claims, charges, liens, encumbrances, equities and other third party
rights of any nature whatsoever and will on Admission rank pari passu in
all respects with the Existing Shares including the right to receive
dividends and other distributions hereafter declared, paid or made in
respect of such shares save that they shall not rank for the proposed
final dividend of 0.233 xxxxx (net) per share in respect of the year
ended 30 September 1999;
(g) all authorisations, approvals, consents and licences required by the
Company and/or Bidco (as the case may be) for the entry into of this
Agreement and the Merger Agreement and the publication of the Tender
Offer Documentation have been unconditionally obtained and are in full
force and effect;
(h) the Merger Agreement has not been terminated or rescinded and is valid
and binding on the parties thereto; the Company is not aware of any
circumstance which is likely to result in the Merger Agreement or the
Tender Offer being terminated or rescinded, or any of the conditions to
the Merger Agreement or the Tender Offer ceasing to be capable of
fulfilment and the Company is not aware of any reason why:
(i) the representations and warranties on the part of Best
contained in the Merger Agreement are not true in accordance with
their terms (subject to disclosures made prior to the date hereof
by Best); or
(ii) the undertakings on the part of Best contained in the Merger
Agreement are not capable of being, or are likely not to be,
performed in accordance with their terms;
(i) no member of the Group has (i) been notified in writing of any claims
outstanding against it or (ii) is engaged in, or has within the previous
twelve months been engaged in any litigation or arbitration proceedings
or similar proceedings or in any government, regulatory or similar
investigation or enquiry which, in any case, individually or collectively
may have or during the twelve months preceding the date hereof has had a
significant effect on the financial or trading position or prospects of
the Group or which individually or collectively are or may be material
for disclosure and no such litigation or arbitration or similar
proceedings or any such investigation or enquiry is threatened nor, to
the best of the knowledge, information and belief of the Directors
(having made all reasonable enquiries), are there any circumstances which
may give rise to any such litigation or arbitration proceedings or
similar proceedings or any such investigation or enquiry;
(j) except as disclosed in the Accounts, any Prior Document or any Prior
Announcement, and except for options under the Company's employee share
option schemes or under the Option Agreement, there are no
PAGE 17
20
arrangements which (contingently or otherwise) may give rise to an
obligation on any member of the Group to allot or issue any securities;
(k) no borrowing of any member of the Group has been declared payable before
its stated maturity which has not been satisfied in full and no
circumstances have arisen or, so far as the Company is aware, are about
to arise such that any person is entitled (or would, with the giving of
notice or lapse of time or fulfilment of any condition that is not within
the control of the Company or the making of any determination, become
entitled) to require payment before its stated maturity of, or to take
any step to enforce security over, any indebtedness in respect of
borrowed moneys of any member of the Group and the Company and its
directors have complied with all restrictions affecting their respective
powers to borrow contained in the Articles of Association of the Company
or any other restriction on such powers;
(l) no member of the Group has taken any action nor, so far as the Company is
aware, have any other steps been taken or legal proceedings started or
threatened against any of them for their winding up or dissolution, or
for any of them to enter into any arrangement or composition for the
benefit of creditors, or for the appointment of a receiver,
administrator, trustee or similar officer of any of them, or any of their
respective properties, revenues or assets in the previous twelve months;
and
(m) all information supplied by the Company to Deutsche Bank in connection
with this Agreement or its advice given relating to the Acquisition is
true and accurate in all material respects and not misleading in any
material respect.
8.2 The Company shall immediately notify Deutsche Bank if it comes to the
knowledge of the Company or any of the Directors at any time prior to Admission
that any of the Warranties was untrue or inaccurate or misleading or would, if
repeated by reference to the facts and circumstances in existence at any time
prior to Admission, be untrue or inaccurate or misleading. If any such
notification is given by the Company as a result of any Warranty which would, if
repeated after the date of this Agreement (a REPEATED WARRANTY), become untrue
or inaccurate or misleading by reference to facts or circumstances arising only
after the date of this Agreement, Deutsche Bank acknowledges that, except for
its obligation to notify (but without prejudice to Deutsche Bank's rights under
the indemnity contained in clause 9), the Company will have no further liability
to Deutsche Bank pursuant to this clause 8.2 in relation to such Repeated
Warranty.
8.3 The Company hereby acknowledges that neither Deutsche Bank nor any
subsidiary undertaking or holding company thereof or subsidiary undertaking of
any such holding company (an AFFILIATE) has been requested by the Company to
carry out (a) any form of investigation or verification exercise
PAGE 18
21
relating to the accuracy and fairness of any information contained in the Press
Announcements or otherwise published by or on behalf of the Company in
connection with the Placing or the Acquisition or (b) (save for Deutsche Bank
Securities, Inc., which has been requested to provide certain advisory services
to the Company pursuant to an engagement letter dated 4 January 2000), any
evaluation of the terms of the Acquisition or of the Company's investigations
into Best.
INDEMNITY
9.1 No claim shall be made against Deutsche Bank or any Affiliate or any of
their respective directors, officers, employees, agents and advisers (together
with Deutsche Bank hereinafter called the INDEMNIFIED PERSONS) to recover any
loss, liability, damage, cost, charge or expense which any member of the Group
or their respective directors, officers or agents may suffer or incur by reason
of or arising out of the carrying out by Deutsche Bank (or on its behalf) of its
obligations under this Agreement or in connection with the Acquisition save to
the extent that such loss, damage, liability, cost, charge or expense arises
from the negligence or wilful default of an Indemnified Person or from any
breach by an Indemnified Person of its duties and obligations under the FSA or
under the regulatory system (as defined in the Rules of the Securities and
Futures Authority) or from a breach by an Indemnified Person of Deutsche Bank's
obligations under this Agreement.
9.2 The Company hereby agrees and undertakes with Deutsche Bank to keep each
and every Indemnified Person indemnified against all actions, claims, demands,
proceedings or judgements (collectively INDEMNIFIED CLAIMS) and all losses,
liabilities, damages, costs, charges and expenses of whatever nature (including
costs, charges and expenses incurred in investigating or defending any
indemnified claim and in complying with any request made pursuant to clause 9.3
below (collectively INDEMNIFIED LOSSES)) made against or incurred by any
Indemnified Person directly or indirectly relating to or arising from the
carrying out or performance by or on behalf of Deutsche Bank of its obligations
or services under or in connection with this Agreement or in connection with the
Acquisition or the Placing PROVIDED THAT this indemnity shall not extend to such
claims or losses to the extent that they are attributable to the negligence or
wilful default of such Indemnified Person or persons or to a breach by an
Indemnified Person of Deutsche Bank's obligations under this Agreement or under
the FSA or under the regulatory system (as defined in the Rules of the
Securities and Futures Authority).
For the avoidance of doubt, the Company hereby acknowledges that any such
negligence, wilful default or breach by an Indemnified Person in relation to one
indemnified claim or indemnified loss shall not prejudice the rights of an
Indemnified Person to recover under this indemnity in relation to any other
indemnified claim or indemnified loss.
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22
9.3 Any Indemnified Person against whom an indemnified claim is made shall be
entitled to defend, compromise, settle or deal with such indemnified claim as
Deutsche Bank may see fit after having considered all reasonable requests which
the Company may make and Deutsche Bank will, or will procure that the
Indemnified Person will, promptly notify the Company in writing of the fact that
an indemnified claim has been made and keep the Company informed on the conduct
of any defence to such claim and in relation to any settlement or compromise of
it.
9.4 If any amount becomes payable under the indemnity in this clause 9, the
Company shall pay such additional amount (if any) as is required to ensure that
the net amount received by the relevant Indemnified Person, after all deductions
and withholdings required by law or any taxation authority to be made from such
aggregate payment and all taxation suffered in respect of its receipt, will
equal the full amount which would have been received had no such deduction or
withholding been made and had no such taxation been suffered.
9.5 The benefit of this clause 9 shall survive any termination of the
arrangements contained in this Agreement and is in addition to any rights which
any Indemnified Person may have at common law or otherwise including, but not
limited to, any right of contribution.
9.6 Deutsche Bank shall have no liability to the Company in connection with
this Agreement save as a result of its negligence, wilful default or breach of
its obligations to the Company hereunder or under the FSA or its breach of any
duty owed to the Company under the rules of the Securities and Futures
Authority.
UNDERTAKINGS AND ACKNOWLEDGEMENT
10.1 The Company undertakes to Deutsche Bank that it shall not, at any time
between the date hereof and one month after the date of Admission, enter into
any agreement or arrangement or do or (so far as it lies within its powers to
prevent) permit to be done any other act or thing which, in any case, would give
rise to any obligation to make an announcement to the London Stock Exchange in
accordance with the Listing Rules save for (i) issuing the Press Announcements
and entering into and completing the Tender Offer Documentation as contemplated
by the Merger Agreement and (ii) any announcement or notification which is
required under the Listing Rules in connection with (a) the Company's annual
general meeting in February 2000 (which announcement or notification shall be
agreed with Deutsche Bank in advance) or (b) the issue of options in the
ordinary course under the Company's employee share option schemes or under the
Option Agreement.
10.2 Without prejudice to the obligations of the Company under clause 10.3
and/or the Listing Rules, the Company hereby undertakes to Deutsche Bank that it
will not, at any time between the date hereof and one month after the
PAGE 20
23
date of Admission or the date on which Deutsche Bank's obligations hereunder
cease and determine, make any public announcement or statement regarding the
Placing or otherwise relating to the financial condition or trading or prospects
of the Group, whether in response to enquiries or otherwise, without the prior
consent of Deutsche Bank, save for issuing the Press Announcements and entering
into and completing the Tender Offer Documentation as contemplated by the Merger
Agreement.
10.3 The Company hereby undertakes to Deutsche Bank that it will not at any
time for a period of one month from the date of Admission make any announcement,
statement or communication via the London Stock Exchange, without first
consulting with Deutsche Bank as to the content, form and manner of publication
of such announcement, statement or communication.
10.4 The Company undertakes to make all such announcements concerning the
Placing and/or the Acquisition as shall be necessary to comply with the Listing
Rules and/or section 47 of the FSA and, in particular, the Company undertakes to
announce through the Regulatory News Service (as defined in the Listing Rules)
the Placing Price as soon as reasonably practicable after its determination by
Deutsche Bank and its notification to the Company. Deutsche Bank reserves the
right to make any such announcement if the Company fails to fulfil its
obligations under this clause 10.4.
10.5 The Company undertakes to do all such acts and things as are reasonably
necessary or desirable to enable the provisions of this Agreement and the
Placing to be carried out and given full force and effect.
10.6 The Company undertakes, for the purposes of clause 11.2 only, to notify
Deutsche Bank immediately if at any time prior to Admission it becomes aware of
any fact, event or circumstance which might entitle the Company or any other
member of its Group to treat any of the conditions to the Tender Offer
including, without limitation, the Tender Offer Force Majeure Condition as
incapable of being satisfied.
TERMINATION AND CONTINUING PROVISIONS
11.1 If Deutsche Bank shall become aware, at any time prior to Admission,
that:
(a) the Company is in breach of any of its obligations hereunder in a manner
which Deutsche Bank acting reasonably regards as material; or
(b) any of the Warranties given by the Company hereunder is untrue,
inaccurate or misleading in any respect which Deutsche Bank acting
reasonably regards as material,
Deutsche Bank shall be entitled, in its absolute discretion by notice in writing
to the Company given prior to Admission, forthwith to terminate its obligations
hereunder.
PAGE 21
24
11.2 Without prejudice to clause 7.3, if the Company and Deutsche Bank agree
that any of the events contained in the Tender Offer Force Majeure Condition has
occurred so that such condition is incapable of being satisfied, neither the
Company nor any other member of its Group shall declare that the conditions to
the Tender Offer have been satisfied or waived and the obligations of Deutsche
Bank hereunder shall terminate upon the Company and Deutsche Bank reaching such
agreement.
11.3 Termination of Deutsche Bank's obligations in accordance with this clause
11 shall be without prejudice to, or to Deutsche Bank's rights under, clauses 6,
8, 9 and this clause 11 which shall continue in full force and effect for all
purposes.
11.4 The representations, warranties, undertakings and indemnities set out in
this Agreement and the Warranties shall remain in full force and effect
notwithstanding Admission and/or fulfilment by Deutsche Bank of its obligations
hereunder and shall be in addition to and shall not be construed to limit,
affect or prejudice any other right or remedy available to the person in whose
favour such representation, warranty, undertaking, indemnity or Warranty is
made.
NOTICES
12.1 Any notice to be given under this Agreement shall be in writing for the
attention of the person stated below and served personally or sent by pre-paid
registered mail to the respective addresses shown above or by facsimile as
stated below, or as the party required to receive the same may otherwise from
time to time notify to the other:
THE COMPANY:
Facsimile Number: 0191 255 0306
Attention: The Company Secretary
DEUTSCHE BANK:
Facsimile Number: 0207 547 4577
Attention: Xxxxxx Xxxxx
12.2 Any such notice shall be deemed to have been served if delivered, at the
time of delivery; if sent by facsimile, at the time of effective transmission
unless the same shall be transmitted after 5.30 p.m. in which event it shall be
deemed to have been served at 10.00 a.m. on the next following business day; if
posted, at 10.00 a.m. on the second business day after it was put into the post.
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MISCELLANEOUS
13. Without prejudice to Deutsche Bank's discretion under clause 2, time
shall be of the essence of this Agreement, both as regards the times, dates and
any period mentioned herein and as to any times, dates and periods which may, by
agreement in writing between the parties hereto, be substituted for them. All
references to business days shall mean days on which banks are generally open
for business in the City of London.
14. Any failure to exercise or delay in exercising a right or remedy provided
by this Agreement or by law does not constitute a waiver of the right or remedy
or a waiver of other rights or remedies. No single or partial exercise of a
right or remedy provided by this Agreement or by law prevents further exercise
of the right or remedy or the exercise of another right or remedy.
15. This Agreement shall be governed by and construed in all respects in
accordance with English law and the parties hereto irrevocably submit to the
exclusive jurisdiction of the courts of England.
AS WITNESS the hands of the duly authorised signatories of the parties the day
and year first before written
SIGNED by )
for and on behalf of ) /s/ XXXX XXXXXX
THE SAGE GROUP PLC )
SIGNED by and ) /s/ XXXXXXXXXXX XXXXX
for and on behalf of )
DEUTSCHE BANK AG LONDON ) /s/ XXXXXX XXXXX
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