EXHIBIT (d)(2)
DEED OF UNDERTAKING
BETWEEN
NAME OF VENDOR
AND
GE POWER SYSTEMS EQUITIES, INC.
▇▇▇▇▇▇▇▇▇ AND MAY
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
CWYU
THIS DEED is dated 17th August, 2000
BETWEEN:
(1) [Name of Vendor] (the "VENDOR"), of [Vendor Address]; and
(2) GE Power Systems Equities, Inc. (the "PURCHASER"), a Delaware
corporation.
WHEREAS
(A) The Purchaser proposes to make the Offer to purchase the whole of the share
capital of the Company, issued and to be issued.
(B) The Vendor has agreed to accept the Offer in respect of the Committed
Shares.
(C) The Vendor has agreed to make certain payments to the Purchaser if the
Acquisition Agreement is terminated in certain circumstances and the Vendor
sells or otherwise disposes of the Committed Shares pursuant to an Acquisition
Proposal.
THE PARTIES AGREE THAT:
1. INTERPRETATION
1.1 DEFINITIONS
In this Deed, except where the context otherwise requires:
"ACQUISITION AGREEMENT" means the agreement of even date between Parent
and the Company relating to the Offer;
"ACQUISITION PROPOSAL" has the meaning given to it in the Acquisition
Agreement;
"BUSINESS DAY" means a day, other than a Saturday or Sunday, on which
banks are open for ordinary banking business in London;
"CITY CODE" means The City Code on Takeovers and Mergers;
"COMMITTED OPTIONS" means the options to subscribe Ordinary Shares of
the Company, particulars of which are set out in Part 2 of Schedule 1
and includes the Ordinary Shares and/or American Depositary Shares of
the Company issued on exercise of such options and any Ordinary Shares
and/or American Depositary Shares of the Company attributable to or
deriving from such securities;
"COMMITTED SHARES" means the Ordinary Shares and/or American Depositary
Shares of the Company particulars of which are set out in Part 1 of
Schedule 1 and shall include
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any Ordinary Shares and/or American Depositary Shares of the Company
attributable to or deriving from such securities;
"COMPANY" means Smallworldwide plc, a public company registered in
England & Wales with registered number 2292791 and having its
registered address at ▇▇▇▇▇▇▇▇▇ House, ▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇;
"CONNECTED PERSON" means in relation to the Vendor any person who would
be treated as connected with such Vendor pursuant to section 346 of the
Companies ▇▇▇ ▇▇▇▇ if such Vendor was a director of a company
incorporate under that Act;
"MAXIMUM ACCOUNTING AMOUNT" means $80,300;
"OFFER" means the proposed offer by the Purchaser for the shares of the
Company described in the Press Announcement;
"OFFER PRICE" means $20 per Ordinary Share or American Depositary Share
of the Company;
"PARENT" means General Electric Company;
"PRESS ANNOUNCEMENT" means the press announcement containing details of
the Offer which the Purchaser and the Company propose to release on the
date of this Deed, a draft of which is attached to this Deed;
"ROLL-OVER PROPOSAL" means the proposal to be made by the Purchaser to
holders of options to roll-over their options into options over shares
issued by the Parent, as described in more detail in Schedule 2;
"WARRANTIES" means the undertakings, representations, warranties,
confirmations and other obligations set out in Clause 4.
1.2 CONSTRUCTION
In this Deed where the context admits:-
(A) words and phrases the definitions of which are contained or
referred to in Part XXVI of the Companies ▇▇▇ ▇▇▇▇ shall be
construed as having the meanings so attributed to them;
(B) references to statutory provisions shall be construed as
references to those provisions as amended or re-enacted or as
their application is modified by other provisions from time to
time and shall include references to any provisions of which
they are re-enactments (whether with or without modification);
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(C) references to Clause(s), paragraph(s) and Schedule(s) are
references to Clause(s) and paragraphs of and Schedule(s) to
this Deed and references to this Deed include the Schedules;
and
(D) references to a "person" include any individual, company, body
corporate, corporation sole or aggregate, government, state or
agency or a state, firm, partnership, joint venture,
association, organisation or trust (in each case, whether or
not having separate legal personality and irrespective of the
jurisdiction in or under the laws of which it was incorporated
or exists) and a reference to any of them shall include a
reference to the others.
1.3 HEADINGS
The headings, sub-headings, and contents pages are inserted for
convenience only and shall not affect the construction of this Deed.
1.4 SCHEDULES
Each of the Schedules shall have effect as if set out in this Deed.
2. UNDERTAKING TO ACCEPT THE OFFER
2.1 The Vendor irrevocably agrees and undertakes to accept, or procure the
acceptance of, the Offer in respect of the Committed Shares.
2.2 The Vendor further irrevocably agrees and undertakes that he will
procure that such acceptance is not withdrawn notwithstanding that such
withdrawal may be permitted under the terms of the Offer.
2.3 The Vendor irrevocably and by way of security for his obligations
hereunder appoints the Purchaser and any director of the Purchaser to
be his attorney to sign, execute and deliver on his behalf forms of
acceptance and any other document required for a valid acceptance of
the Offer in respect of the Committed Shares and to do all acts and
things in his name as may be necessary for or incidental to such
acceptance.
2.4 The Vendor irrevocably agrees and undertakes to accept the Roll-over
Proposal in respect of Committed Options with an Option Value
representing not less than 45 per cent of the aggregate Option Value of
all of the Committed Options, such acceptance to be made in respect of
options which will vest later before acceptance is made in respect of
options vesting sooner. For this purpose "Option Value" means in
respect of an Option the difference between the exercise price for such
Option and $20.
3. SALE OF COMMITTED SHARES
3.1 If:
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(i) the circumstances described in Section 5.2(b)(i),
(iii) or (iv) of the Acquisition Agreement occur; and
(ii) prior to the first anniversary of the date of this
Deed, the Vendor and/or any Connected Person of the
Vendor, directly or indirectly, and whether by
agreement or by operation of law, sells, transfers,
assigns, conveys or otherwise disposes of the
Committed Shares or the Committed Options or enters
into any other agreement or arrangement the financial
effect of which is substantially equivalent thereto
or enters in to any agreement to do any of the
foregoing in each case with or to a person who is a
party to or has proposed to enter into an Acquisition
Proposal, or is acting jointly with or in concert
with such a person (such a person a "Competing Third
Party" and such a transaction a "Relevant
Transaction"),
the Vendor covenants and agrees to pay to the Purchaser an amount
determined in accordance with Clauses 3.2 and 3.3 which shall be
payable in accordance with Clause 3.4.
3.2 The amount payable by the Vendor to the Purchaser pursuant to Clause
3.1 shall be the amount (the "Accounting Amount"), equal to the lower
of (1) the Maximum Accounting Amount and (2) the difference between (a)
the aggregate value of the consideration received, directly or
indirectly, by the Vendor and/or the relevant Connected Person of the
Vendor for the Committed Shares and the Committed Options pursuant to
the Relevant Transaction less any amount of tax required to be paid by
the Vendor and/or the relevant Connected Person of the Vendor as a
consequence of the Relevant Transaction; and (b) the consideration
which the Vendor and/or the relevant Connected Person of the Vendor
would have received for the Committed Shares and the Committed Options
under the Offer (the "Total Consideration") less the amount of tax
which the Vendor and/or the relevant Connected Person of the Vendor
would have been required to pay as a consequence of receiving the Total
Consideration pursuant to the Offer. For the purpose of valuing the
consideration received by the Vendor and/or the relevant Connected
Person of the Vendor for the Committed Options pursuant to a Relevant
Transaction or the Offer, as the case may be, the consideration
received will be deemed to be the consideration which would have been
received if the Committed Options had been exercised and the
consideration due pursuant to the Relevant Transaction or the Offer, as
the case may be, had been received for the Ordinary Shares and/or
American Depositary Shares issued on such exercise.
3.3 If the consideration received by the Vendor and/or the relevant
Connected Person of the Vendor pursuant to a Relevant Transaction (the
"Competing Third Party Consideration") includes any property other than
cash, the amount of aggregate consideration received by the Vendor
shall be deemed to be the sum of: (a) the fixed cash amount, if any,
included in the Competing Third Party Consideration; and (b) the fair
market value of such other property. If such other property includes
securities listed on an existing public trading market, the fair market
value of such securities shall be deemed to be equal to the average of
the closing prices (or the average of the closing bid and asked prices
if
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closing prices are unavailable) for such securities in their principal
public trading market on the five trading days ending five days prior
to the closing date of the Relevant Transaction, as the case may be. If
such Competing Third Party Consideration includes property other than
cash or securities listed on an existing public trading market and
agreement on the value of such other property has not been reached, the
Competing Third Party Consideration shall be deemed to be the amount of
any cash included in the Competing Third Party Consideration PLUS the
fair market value of such other property as determined by a nationally
recognised investment banking firm agreed by the parties or, in the
absence of such agreement, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇. The
parties shall use all reasonable efforts to cause any determination of
the fair market value of such other property to be made within two
Business Days after the closing date of the Relevant Transaction.
3.4 The Vendor shall pay any sum owing to the Purchaser pursuant hereto
within five days of the receipt by the Vendor of the Competing Third
Party Consideration. Payment of the cash portion of the Accounting
Amount shall be made by wire transfer of immediately available funds to
a bank account designated by the Purchaser. If non-cash consideration
is received by the Vendor and/or any Connected Person of the Vendor as
part of the Competing Third Party Consideration, then the Vendor shall
transfer cash and non-cash consideration in payment of the Accounting
Amount in proportion to that received by the Vendor and/or any
Connected Person of the Vendor as Competing Third Party Consideration,
except that the Vendor may, at its option, pay to the Purchaser the
cash equivalent of such non-cash consideration (as determined under
Clause 3.3 and with the timing and method of payment set out above).
The Vendor shall transfer to the Purchaser good and valid title to such
non-cash consideration to be transferred hereunder, free and clear of
any and all encumbrances, within five days of receipt by the Vendor
and/or any Connected Person of the Vendor of the Competing Third Party
Consideration.
4. UNDERTAKINGS, REPRESENTATIONS, WARRANTIES AND CONFIRMATIONS
4.1 VENDOR OBLIGATIONS
The Vendor hereby irrevocably undertakes, represents and warrants to
the Purchaser as follows:
(A) he is, or a Connected Person identified in Schedule 1 is, the
beneficial owner and the registered holder of the Committed
Shares and the Committed Options and the Committed Shares and
the Committed Options are free from all encumbrances, liens
and charges. Other than the Committed Shares and the Committed
Options there are no shares in the Company registered in the
Vendor's name (or in the name of any of its Connected Persons)
or beneficially owned, or managed and controlled, by the
Vendor (or any of its Connected Persons) or in which the
Vendor (or any of its Connected Persons) has an interest and
neither the Vendor nor any of its Connected Persons has any
rights, warrants or options to acquire or subscribe for shares
in the Company;
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(B) unless and until the Offer shall have closed, lapsed or shall
have been withdrawn, save as referred to in this Deed or by
way of acceptance of the Offer, the Vendor shall not, and
shall procure that its Connected Persons shall not, otherwise
than pursuant to the Offer, sell or otherwise dispose of or
permit the sale or other disposition of all or any of the
Committed Shares or the Committed Options or any interest in
any of the Committed Shares or the Committed Options;
(C) unless and until the Offer shall have closed, lapsed or shall
have been withdrawn, save pursuant to this Deed, neither the
Vendor nor any Connected Person of the Vendor has agreed,
conditionally or otherwise, to dispose of all or any of the
Committed Shares or the Committed Options or any interest
therein;
(D) the Vendor shall not (and shall procure that its Connected
Persons do not), without the prior written consent of the
Purchaser, purchase or otherwise acquire any shares in the
Company or any interest therein or agree to do so;
(E) the Vendor shall procure that, unless and until the Offer
shall have closed, lapsed or shall have been withdrawn, no
other agreement or arrangements (including any undertaking)
shall be entered into (other than with the Purchaser) which
could result in the disposal of, or the creation or existence
of any encumbrance, lien or charge over on, all or any of the
Committed Shares or the Committed Options or any interest
therein or which might in any way restrict the disposal of the
Committed Shares or the Committed Options or any of them and
no other offer shall be accepted in respect of the Committed
Shares or the Committed Options or any of them;
(F) at all times after the date hereof and until the Offer shall
have closed, lapsed or been withdrawn, the Vendor shall comply
with the requirements of Section 4.5(b) of the Acquisition
Agreement applicable to the Board of Directors of the Company
and with the requirements of Section 4.8 of the Acquisition
Agreement applicable to a Representative of the Company (as
defined in the Acquisition Agreement);
(G) so far as is consistent with his fiduciary duty as a Director,
the Vendor will recommend acceptance of the Offer to the
Company's shareholders; and
(H) the Vendor will join with the other Directors of the Company
in making such statements of responsibility in relation to
information relating to the Company and its subsidiaries as
may be required under Rule 19.2 of the City Code.
4.2 BINDING OBLIGATIONS
Each party warrants and represents to the other that it has full power
and authority to enter into and perform its obligations under this Deed
in accordance with the terms of this Deed and that the obligations
imposed on it hereunder constitute legal, valid and binding obligations
of it, enforceable against it, subject as to enforcement to laws of
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general applicability including those relating to or affecting
creditors' rights and to general principles of equity and public policy
rules and regulations.
4.3 The Vendor agrees that its Connected Persons named in Schedule 1 will
be bound by the obligations, representations and warranties on the part
of the Vendor and the Vendor shall procure compliance by such Connected
Persons therewith.
5. CONFIDENTIALITY
5.1 RESTRICTION
Subject to Clause 5.2 below, the Vendor shall not make any announcement
or public disclosure concerning this Deed or its subject matter without
the prior written approval of the Purchaser and the Vendor will
maintain appropriate secrecy about the possibility, and terms of, the
Offer.
5.2 DISCLOSURE
The Vendor irrevocably consents to the issue of any Offer Document (and
any related press announcement required by Rule 2.5 of the City Code)
incorporating references to the Vendor and to the provisions of this
Deed. The Vendor acknowledges that this Deed may be made available for
public inspection.
5.3 PERSISTENCE OF RESTRICTIONS
The restrictions contained in this Clause 5 shall survive completion
and the termination of this Deed.
6. PROVISIONS RELATING TO THIS DEED
6.1 NO ASSIGNMENT
This Deed shall be binding upon and inure for the benefit of the
successors of the parties but shall not be assignable or transferable.
6.2 INVALIDITY
If any provision of this Deed shall be held to be illegal, void,
invalid or unenforceable under the laws of any jurisdiction, the
legality, validity and enforceability of the remainder of this Deed in
that jurisdiction shall not be affected, and the legality, validity and
enforceability of the whole of this Deed shall not be effected in any
other jurisdiction.
6.3 TIME OF THE ESSENCE
Time shall be of the essence.
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6.4 ENTIRE AGREEMENT
(A) This Deed, together with any documents referred to in it,
constitutes the whole agreement between the parties relating
to its subject matter and supersedes and extinguishes any
prior drafts, agreements, undertakings, representations,
warranties, assurances and arrangements of any nature, whether
in writing or oral, relating to such subject matter.
(B) Each party acknowledges that it has not been induced or enter
into this Deed by, and that it does not in connection with
this Deed or its subject matter rely on, any representation,
warranty, promise or assurance by the other party or any other
person other than those contained in this Deed and, having
negotiated and freely entered into this Deed, agree that it
shall have no remedy in respect of any other such
representation, warranty, promise or assurance except in the
case of fraud.
(C) No variation of this Deed shall be effective unless made in
writing.
6.5 COUNTERPARTS
This Deed may be executed in any number of counterparts including
facsimile copies, which shall together constitute one Deed. Any party
may enter into this Deed by signing any such counterpart. This Deed
shall be of no legal effect until it has been executed by or on behalf
of both parties.
6.6 NOTICES
(A) Any notice (which term shall include any other communication)
required to be given under this Deed or in connection with the
matters contemplated by it shall be in writing in English
language.
(B) Any such notice shall be addressed as provided in Clause
6.6(C) and may be:-
(i) personally delivered, in which case it shall be
deemed to have been given upon delivery at the
relevant address; or
(ii) if within the United Kingdom, sent by first class
pre-paid post, in which case it shall be deemed to
have been given two Business Days after the date of
posting; or
(iii) if from or to any place outside the United Kingdom,
sent by pre-paid priority airmail, in which case it
shall be deemed to have been given seven Business
Days after the date of posting; or
(iv) sent by facsimile, in which case it shall be deemed
to have been given when despatched subject to
confirmation of uninterrupted transmission by a
transmission report provided that any notice
despatched by
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facsimile after 17.00 hours on any day shall be
deemed to have been received at 09.00 on the next
Business Day.
(C) The addresses and other details of the parties referred to in
Clause 6.6(B) are, subject to Clause 6.6(D):-
The Vendor
Address: [INSERT ADDRESS]
Facsimile number:
The Purchaser
For the attention of: General Manager, GE Energy
Management Systems
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇
Facsimile number: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
With a copy to: General Electric Company
GE Power Systems
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇
Facsimile number: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
For the attention of: General Counsel
and
C.W.Y.▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ and May
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Facsimile number: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
(D) Any party to this Deed may notify the other parties of any
change to the address or any of the other details specified in
Clause 6.6(C), provided that such
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notification shall only be effective on the date specified, in
such notice or five Business Days after the notice is given,
whichever is later.
6.7 ENGLISH LAW
This Deed shall be governed by, and construed in accordance with,
English law and the English courts shall have exclusive jurisdiction to
determine all disputes in relation to it. The Vendor agrees that if it
defaults in its obligations hereunder damages alone would not be an
adequate remedy and an order for specific and no proof of special
damages shall be necessary for the enforcement of its obligations
hereunder.
6.8 PROCESS AGENT
The Vendor appoints the Company at its registered office as its process
agent to receive on its behalf service of process in any proceedings in
England. Service upon the process agent shall be good service upon the
Vendor whether or not it is forwarded to and received by the Vendor. If
for any reason the process agent ceases to be able to act as process
agent, or no longer has an address in England, the Vendor irrevocably
agrees to appoint a substitute process agent with an address in England
acceptable to the Purchaser and to deliver to the Purchaser a copy of
the substitute process agent's acceptance of that appointment within 20
Business Days. In the event that the Vendor fails to appoint a
substitute process agent, it shall be effective service for the
Purchaser to serve the process upon the last known address in England
of the last known process agent for the Vendor notified to the
Purchaser, notwithstanding that such process agent is not longer found
at such address or has ceased to act.
6.9 NO OFFER
This Deed does not and will not constitute an offer, undertaking or
commitment of any kind by the Purchaser to purchase all or any of the
Committed Shares.
7. COSTS
Each party shall pay its own costs of and incidental to this Deed and
any resultant sale or purchase of Committed Shares or Committed Options
and, for the avoidance of doubt, any stamp duty or stamp duty reserve
tax payable in connection therewith shall be payable by the Purchaser.
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IN WITNESS whereof this document has been executed and delivered as a deed on
the date first before written.
SIGNED AS A DEED )
BY [VENDOR] )
in the presence of: )
SIGNED AS A DEED )
BY GE Power Systems Equities, Inc. )
in the presence of: )
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SCHEDULE 1
PART 1
THE COMMITTED SHARES
NUMBER, CLASS AND NAME AND ADDRESS OF NAME AND ADDRESS OF
DENOMINATION REGISTERED OWNER BENEFICIAL OWNER
PART 2
THE COMMITTED OPTIONS
NUMBER OF DATE OF GRANT NAME AND ADDRESS OF NAME AND ADDRESS OF
OPTIONS REGISTERED OWNER BENEFICIAL OWNER
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SCHEDULE 2
ROLL-OVER PROPOSAL
Under the Roll-over Proposal, employees and directors of the Company and its
subsidiaries who are holders ("Company Optionholders") of options ("Company
Options") over Ordinary Shares and/or American Depositary Shares (collectively,
"Shares") will be entitled to have options over shares in General Electric
Company ("GE Options") issued to them in substitution for, at the relevant
Company Optionholders' discretion, some or all of their existing Options
("Rolled-over Options"). Such GE Options will be granted on the same terms and
conditions as those applying to the Rolled-over Options. GE Options will be
granted in respect of a number of shares of common stock of General Electric
Company equal to the number of Shares the subject of the Rolled-over Options
multiplied by the Roll-over Adjustment Ratio. The exercise price per share of
common stock of General Electric Company subject to each GE Option will be the
exercise price per Share the subject of the Rolled-over Option divided by the
Roll-over Adjustment Ratio. "Roll-over Adjustment Ratio" means the amount
produced by dividing 20 by the average of the daily high and low trading prices
on the New York Stock Exchange of the common stock of General Electric Company
on each of the five successive trading days ending on the day prior to the
Purchase Date (as defined in the Acquisition Agreement).
Company Optionholders accepting the Roll-over Proposal will be paid a bonus cash
payment (the "Roll-over Bonus") equal to 10 per cent. of the value of the
Rolled-over Options (i.e. 10 per cent. of the product of the Offer Price less
the exercise price multiplied by the number of Shares the subject of the
Rolled-over Options); one half of the Roll-over Bonus will be payable 90 days
after acceptance by the relevant Company Optionholder of the Roll-over Proposal,
with the balance being payable 270 days after acceptance by the relevant Company
Optionholder of the Roll-over Proposal, conditional, in each case (except for
non-executive directors), on the relevant Company Optionholder not then having
terminated his employment.
GE Options granted pursuant to the Rollover Proposal in respect of Company
Options granted subject to a condition that the share price of Company Shares is
not less than $24 will vest in three equal tranches, on the first, second and
third anniversaries of the date of grant.