Exhibit (b)(2)
DATED ___________ AUGUST, 2000
PEARSON PLC
- AND -
GOLDMAN SACHS INTERNATIONAL
- AND -
CAZENOVE & CO.
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AMENDING AGREEMENT
TO AN UNDERWRITING AGREEMENT
-----------------------------
Slaughter and May
35 Basinghall Street
London EC2V 5DB
(DRJ/ARR)
CE003696430
THIS AGREEMENT is made on August, 2000
BETWEEN:
(1) PEARSON PLC (registered in England with number 53723) whose registered
office is at 3 Burlington Gardens, London W1X 1LE (the "COMPANY");
(2) GOLDMAN SACHS INTERNATIONAL of Peterborough Court, 133 Fleet Street,
London EC4A 2BB ("GOLDMAN SACHS"); and
(3) CAZENOVE & CO. of 12 Tokenhouse Yard, London EC2R 7AN ("CAZENOVE").
WHEREAS:
(A) Goldman Sachs and Cazenove agreed, on the terms and subject to the
conditions contained in an underwriting agreement (the "Underwriting
Agreement") dated 31st July 2000, to underwrite the Rights Issue (as such
term is defined in the Underwriting Agreement).
(B) The parties to the Underwriting Agreement have agreed to amend the
Underwriting Agreement.
WHEREBY IT IS AGREED AS FOLLOWS:
1. Clause 1.1 of the Underwriting Agreement shall be amended as follows:
(A) New definitions shall be inserted as follows:
"Canadian Holders" means Qualifying Holders with
registered addresses in Canada or any
of its provinces;
"Dutch Holders" means Qualifying Holders with
registered addresses in the
Netherlands;
"French Holders means Qualifying Holders with
registered addresses in France;
"South African Holders" means Qualifying Holders with
registered addresses in the Republic
of South Africa;"
(B) The definition of "New Shares" shall be amended to read as follows:
"New Shares" means the 170,528,278 New Ordinary
Shares to be allotted pursuant to the
rights issue;"
2. A new clause 3.6 shall be added to the Underwriting Agreement as follows:
"3.6 The Company shall comply with the terms and provisions set out in
SCHEDULE 3. The Underwriters shall not be entitled to rescind
this Agreement or treat it as terminated (and shall accordingly
remain bound to perform all the obligations and services which
are the subject of this agreement on the terms set out in this
agreement) in the event of a breach of this CLAUSE 3.6 or
SCHEDULE 3 but shall be entitled to claim damages or exercise any
other right, power or remedy, in each case subject to the
foregoing, under this Agreement or as otherwise provided in law."
3. The following wording shall be inserted at the beginning of clause 4.3 of
the Underwriting Agreement:
"The conditions set out in CLAUSES 4.1 (C), (F) AND (G) shall be deemed to
have been fulfilled, if they have not been invoked by the Underwriters
giving written notice to the Company, by the earlier of 3.00 p.m. on the
second Dealing Day after the Acceptance Date and the time at which the
Underwriters instruct the Brokers no longer to endeavour to procure any
subscribers in accordance with CLAUSE 7.6."
4. Clause 4.3(B) of the Underwriting Agreement shall be amended by inserting
"and CLAUSE 3.6 and Sections [3] (Covenants) and [5] (Indemnities) of
SCHEDULE 3" after the words "CLAUSES 11 AND 12".
5. The existing clause 5.1 of the Underwriting Agreement will be deleted and
replaced with the following:
"5.1 The Company will provide such documents and notifications and pay
such fees to the Australian Securities Commission (and shall do so
by not later than such dates) as are necessary to ensure that the
Circular and the Provisional Allotment Letters can be sent to
Qualifying Holders with registered addresses in the Commonwealth of
Australia, its territories or possessions in compliance with
Australian law."
6. The reference in clause 5.2 of the Underwriting Agreement to "North
American Holders" shall be changed to "Canadian Holders, French Holders,
Irish Holders, South African Holders or Dutch Holders".
7. A new clause 5.3 shall be inserted in the Underwriting Agreement as
follows and the existing clauses 5.3 and 5.4 shall be renumbered 5.4 and
5.5 respectively:
"5.3 The Company will not send the Circular to North American
Holders. Provisional Allotment Letters will only be sent to
North American Holders once (i) each of the Registration
Statement (as defined in SCHEDULE 3) and the ADR Registration
Statement (as defined in SCHEDULE 3) has become effective and
(ii) the due diligence opinions from Sullivan & Cromwell and
Morgan, Lewis & Bockius have been delivered [and such Provisional
Allotment Letters shall be sent in accordance with the provisions
of the Supplemental Agreement (as defined in SCHEDULE 3)."
8. In clause 7.2 (in both places in which it occurs) and clause 7.7 of the
Underwriting Agreement, the following words shall be deleted:
"(save that individual amounts of less than (pound)3.00 per holding shall
not be so paid but shall be retained by the Company)".
9. A new clause 8.4 shall be inserted as follows:
"8.4 For the avoidance of doubt, nothing in this Agreement shall oblige
the Underwriters to:
(i) subscribe for, or to procure subscribers for, ADR or ADSs
(each as defined in SCHEDULE 3) or to purchase, or endeavour
to procure purchasers for, ADRs or ADSs (each as defined in
SCHEDULE 3); or
(ii) to convert, or procure the conversion of, any amount from
pounds sterling into any other currency or to account for, or
pay to, any other person any sum in a currency other than
pounds sterling."
10. In clause 10.4 of the Underwriting Agreement the words "and in SECTION [2]
of SCHEDULE 3" shall be inserted after the words "CLAUSE 10.1".
11. A new clause 12.5 will be inserted as follows:
"12.5 No Indemnified Person will bring a claim or seek indemnification
pursuant to CLAUSE 12.3 in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) to the extent that the
same are the subject of the indemnities set out in Section [5(A)] of
Schedule 3 but will instead bring such claim or seek such
indemnification under the indemnity contained in SECTION [5(A)] of
SCHEDULE 3."
12. The following words will be inserted into Clause 16 after the words "This
Agreement":
"with the exception of SCHEDULE 3".
13. A new schedule 3 in the form of the Schedule to this Agreement shall be
inserted in the Underwriting Agreement.
14. All other provisions of the Underwriting Agreement will remain unchanged.
IN WITNESS whereof the parties hereto have entered into this Agreement the day
and year first before written.
SCHEDULE 3
PROVISIONS RELATING TO THE US RIGHTS ISSUE AND UNDERWRITING(1)
The provisions set forth in this SCHEDULE 3 relate solely and
exclusively to the Underwriters' activities in connection with the US
Offering. No breach or inaccuracy of any representation or warranty of the
Company contained herein, nor any breach of any covenant of the Company
contained in the SCHEDULE 3, shall relieve the Underwriters of, or in any
way affect, the obligations of the Underwriters under the Agreement.
1. DEFINITIONS
In addition to the definitions in CLAUSE 1 of this Agreement, in this
SCHEDULE 3, the following expressions shall, unless the context otherwise
requires, have the following meanings:-
"Act" The United States Securities Act of
1933, as amended
"ADSs" The American Depositary Shares
representing the Ordinary Shares
"ADRs" The American Depositary Receipts issued
by the Depositary and evidencing the
ADSs
"ADR Registration Statement" The registration statement on Form F-6,
including all exhibits thereto,
relating to the ADRs, as amended at the
time it becomes effective
"ADS Rights" The transferable rights to subscribe
for New ADSs, pursuant to the terms of
the Rights Agency Agreement in
connection with the Rights Issue
"ADS Subscription Agent" The Bank of New York
"Agreement" The underwriting agreement entered into
among the Company and the Underwriters,
dated July 31, 2000, as amended by a
supplemental agreement dated August 8,
2000
"Authorized Agent" Pearson Inc., New York, New York
"Commission" The United States Securities and
Exchange Commission
"Deposit Agreement" The deposit agreement, dated as of
March 21, 1998 and as amended and
restated as of August 8, 2000, among
the Company, the Depositary and holders
from time to time of ADRs
"Depositary" The Bank of New York
- --------
1 For the avoidance of doubt, this SCHEDULE 3 is divided into
"SECTIONS" whereas the Agreement is divided into "CLAUSES".
"Exchange Act" The United States Securities Exchange
Act of 1934, as amended
"Governmental Agency" Any court or governmental agency or body
"Investment Company Act" The United States Investment Company
Act of 1940, as amended
"NCS" National Computer Systems, Inc.
"New ADSs" The New ADSs to be offered pursuant to
the terms of the Rights Agency Agreement
"NYSE" The New York Stock Exchange
"PFIC" Passive Foreign Investment Company
"Registration Statement" The registration statement on Form F-1
in respect of the Ordinary Shares and
ADSs, including the US Prospectus
relating to the US Offering and all
exhibits thereto, as amended at the
time it becomes effective
"Rights Agency Agreement" The agreement entered into between the
Company and The Bank of New York dated
August 8, 2000 relating to the issue of
ADS Rights
"US Offering" The Rights Issue in the United States
and the reoffering of unsubscribed
shares in the US by the Underwriters
"US Prospectus" The prospectus included in the
Registration Statement, in the form
first filed with the Commission
pursuant to Rule 424(b) under the Act
"Underwritten Shares" The Ordinary Shares that the
Underwriters are required to take up
pursuant to CLAUSE 8.2 of the Agreement
"Underwriters" Goldman Sachs and Cazenove and their
respective US broker-dealer affiliates who
are acting as selling agents in connection
with the US Offering.
2. REPRESENTATIONS AND WARRANTIES
In addition to the representations, warranties and undertakings referred
to in CLAUSES 3 AND 10, of this Agreement, the Company represents and
warrants to, and agrees with, each of the Underwriters that:-
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(A) The Registration Statement has been filed with the Commission; the
Registration Statement and any post-effective amendment thereto,
each in the form heretofore delivered to the Underwriters, have been
declared effective by the Commission in such form; no other document
with respect to the Registration Statement has heretofore been filed
with the Commission; and no stop order suspending the effectiveness
of the Registration Statement or any post-effective amendment
thereto, if any, has been issued and no proceeding for that purpose
has been initiated or, to the Company's knowledge, threatened by the
Commission;
(B) The Registration Statement conforms, and the US Prospectus and any
further amendments or supplements to the Registration Statement or
the US Prospectus will conform, at the time of the applicable
effective date in the case of the Registration Statement and any
amendment and as of the date of the US Prospectus and any supplement
thereto, in all material respects to the requirements of the Act and
the rules and regulations of the Commission thereunder and do not
and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the
applicable filing date as to the US Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the case of the US
Prospectus, in the light of the circumstances under which they were
made, not misleading; PROVIDED, HOWEVER, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter expressly for use therein;
(C) An ADR Registration Statement has been filed with the Commission;
the ADR Registration Statement in the form heretofore delivered to
the Underwriters has been declared effective by the Commission in
such form; no other document with respect to such registration
statement has heretofore been filed with the Commission; no stop
order suspending the effectiveness of the ADR Registration Statement
has been issued and no proceeding for that purpose has been
initiated or threatened by the Commission; and the ADR Registration
Statement when it became effective conformed, and any further
amendments thereto will conform as of their effective date, in all
material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder, and did not, as of the
applicable effective date, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading;
(D) This Agreement, the Deposit Agreement and the Rights Agency
Agreement have been duly authorized, executed and delivered by the
Company, and constitute valid and legally binding agreements of the
Company, and (insofar as the Agreement is governed by English law)
such agreements are enforceable in accordance with its terms,
subject, as to enforceability, to bankruptcy, insolvency,
reorganization and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles;
upon issuance by the Depositary of the ADS Rights and the underlying
ADRs evidencing ADSs against the deposit of Shares in respect
thereof in accordance with the provisions of the Deposit Agreement,
such ADS Rights and underlying ADRs will be duly and validly issued
and the persons in whose names the ADS Rights are issued and the
ADRs are registered will be entitled to the rights specified
therein, in the Deposit Agreement and the Rights Agency Agreement;
and the Deposit Agreement, the Rights Agency Agreement, the ADS
Rights and the ADRs conform in all material respects to the
descriptions thereof contained in the US Prospectus;
(E) All dividends and other distributions declared and payable on the
shares of the capital stock of the Company may, under the current
laws and regulations of the United Kingdom, be paid to the
Depositary in Great Britain Pounds that may be converted into
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foreign currency that may be freely transferred out of the United
Kingdom and, except as set forth in the US Prospectus under the
caption "Tax Considerations", all such dividends and other
distributions will not be subject to withholding or other taxes
under the laws and regulations of the United Kingdom and are
otherwise free and clear of any other tax, withholding or deduction
in the United Kingdom and without the necessity of obtaining any
Governmental Authorization in the United Kingdom;
(F) The issue and sale of the New Shares and the New ADSs by the
Company, any deposit of the New Shares with the Depositary against
issuance of New ADRs evidencing New ADSs and the compliance by the
Company with all of the provisions of this Agreement, including the
terms and provisions of this SCHEDULE 3, the Deposit Agreement and
the Rights Agency Agreement and - the consummation of the
transactions herein and therein contemplated will not result in any
violation of the provisions of the Memorandum and Articles of
Association of the Company or any statute or any order, rule or
regulation of any Governmental Agency having jurisdiction over the
Group or any of their properties or, so far as the directors are
aware, having made such inquiries (if any) as are reasonable, such
actions will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan stock, loan agreement
or other agreement or instrument to which any member of the Group is
a party or by which it or any of them is bound or to which any of
their respective property or assets is subject except for such
conflict, breach, violation or default as would not have a material
adverse effect on the Group taken as a whole; and no consent,
approval, authorization, order, registration or qualification of or
with any such Governmental Agency is required for the issue and sale
of the New Shares or the New ADSs, for the deposit of any New Shares
being deposited with the Depositary against issuance of the New ADRs
evidencing the New ADSs or the consummation by the Company of the
transactions contemplated by this Agreement, including the terms and
provisions of this SCHEDULE 3, except (A) the registration under the
Act of the New Shares, the New ADSs and the New ADRs, (B)
registration of the ordinary shares under the Exchange Act in
connection with the listing on the NYSE, (C) such Governmental
Authorizations as have been duly obtained and are in full force and
effect and copies of which have been furnished to the Underwriters
and (D) such Governmental Authorizations as may be required under
state securities or Blue Sky laws or any laws of jurisdictions
outside the United Kingdom and the United States in connection with
the purchase and distribution of the New Shares and New ADSs by or
for the account of the Underwriters;
(G) Neither the Company nor any of its subsidiaries has taken, directly
or indirectly, any action which was designed to or which has
constituted or which might reasonably be expected to cause or result
in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares and ADSs in
the US;
(H) The statements set forth in the US Prospectus under the caption
"Description of Share Capital" and "Description of American
Depositary Shares", insofar as they purport to constitute a summary
of the terms of the Ordinary Shares and the ADSs, respectively, and
under the caption "Tax Consideration", insofar as it purports to
describe the provisions of the laws and documents referred to
therein, constitute a fair summary;
(I) The Company is not and, after giving effect to the offering and sale
of the Shares, will not be an "investment company", as such term is
defined in the Investment Company Act; and
(J) The Company is not a PFIC within the meaning of Section 1296 of the
United States Internal Revenue Code of 1986, as amended, and is not
likely to become a PFIC.
3. COVENANTS
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The Company agrees with each Underwriter:-
(A) From time to time as practicable after the Posting Date, to furnish
the Underwriters with copies of the US Prospectus in London in such
quantities as they may reasonably request. If any events shall have
occurred as a result of which the US Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made when such US Prospectus is delivered, not misleading,
or, if for any other reason it shall be necessary during such period
to amend or supplement the US Prospectus in order to comply with the
Act, to notify the Underwriters and, at any time prior to the date
10 business days, but in no event later than October 7, 2000,
following the Acceptance Date upon request of the Underwriters, to
prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Underwriters may from
time to time reasonably request of an amended US Prospectus or a
supplement to the US Prospectus which will correct such statement or
omission or effect such compliance;
(B) To use its best efforts to list, subject to notice of issuance, the
ADSs on the NYSE. If the ADSs are not listed on the NYSE, to use its
best efforts to qualify the Shares or ADSs under the securities laws
of such jurisdictions as the Underwriters may request;
(C) That it will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants
in connection with the registration of the Shares and ADSs under the
Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, the ADR
Registration Statement, and the US Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof
to the Underwriters and dealers; (ii) the cost of printing or
producing this Agreement, the Deposit Agreement, the Rights Agency
Agreement, any Blue Sky Memorandum, and any other documents in
connection with the offering, purchase, sale and delivery of the New
Shares and New ADSs in the United States; (iii) any expenses in
connection with the qualification of the New Shares and New ADSs for
offering and sale under state securities laws, including the fees
and disbursements of counsel for the Underwriters in connection with
such qualification and in connection with the Blue Sky survey; (iv)
all fees and expenses in connection with listing the ADSs on the New
York Stock Exchange; (v) the filing fees incident to, and the fees
and disbursements of counsel for the Underwriters in connection
with, securing any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the New Shares
and New ADSs; (vi) the reasonable fees and disbursements of the
Underwriters' counsel in connection with the transactions
contemplated hereby; (vii) all expenses and taxes, other than the
1.5% UK tax described in the US Prospectus, arising as a result of
the deposit by the Company of the New Shares with the Depositary and
the issuance and delivery of the New ADRs evidencing New ADSs in
exchange therefor by the Depositary in connection with exercise of
rights pursuant to the Rights Issue; (viii) the fees and expenses
(excluding any applicable taxes but including fees and disbursements
of counsel), if any, of the Depositary and any custodian appointed
under the Deposit Agreement, and ADS Subscription Agent under the
Rights Agency Agreement other than the fees and expenses to be paid
by holders of ADRs (other than the Underwriters, in connection with
the initial purchase of ADSs and the Shares); (ix) the fees and
expenses of the Authorized Agent; (x) the cost of preparing the
ADRs; (xi) the cost and charges of any transfer agent or registrar;
and (xii) all other costs and expenses of the Company incident to
the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood,
however, that, except as provided in this Section and Section 5
hereof, the Underwriters will pay all of their own costs and
expenses, stock transfer taxes on resale of any of the New Shares
v
and New ADSs by them, and any advertising expenses connected with
any offers they may make.
4. DOCUMENTS TO BE DELIVERED ON POSTING DATE
The following documents are to be delivered to the Underwriters in form
and substance satisfactory to the Underwriters on the Posting Date and the
Company agrees that none of the US Prospectus, the Provisional Allotment
Letters or warrants evidencing ADS Rights will be posted to US
shareholders until such documents have been delivered:-
(A) Opinions of Sullivan & Cromwell, counsel for the Underwriters;
(B) An opinion of Morgan Lewis & Bockius, US counsel for the Company;
(C) An opinion of Freshfields Bruckhaus Deringer, English counsel for
the Company;
(D) An opinion of Emmet, Marvin and Martin, counsel for the Depositary
and the ADS Subscription Agent;
(E) An opinion of Slaughter and May, English counsel for the
Underwriters;
(E) A letter or letters from PricewaterhouseCoopers, accountants for the
Company;
(F) A letter or letters from Ernst & Young, accountants for NCS;
5. INDEMNITIES
(A) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the ADR Registration
Statement or the US Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses
are incurred; PROVIDED, HOWEVER, that the Company shall not be
liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement, the ADR Registration
Statement or the US Prospectus or any such amendment or supplement
in reliance upon and in conformity with written information
furnished to the Company by any Underwriter expressly for use
therein.
(B) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the
Company may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement, the ADR Registration Statement or the US
Prospectus, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the
Registration Statement, the ADR Registration Statement or the US
Prospectus or any such amendment or supplement in reliance upon and
in conformity with written information furnished to the Company by
such Underwriter expressly for use therein; and will reimburse the
Company for any legal
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or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such
expenses are incurred.
(C) Promptly after receipt by an indemnified party under subsection (A)
or (B) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against an indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it
from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall
be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (which shall not, except with
the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof,
the indemnifying party shall not be liable to such indemnified party
under such subsection for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall,
without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action or
claim and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(D) If the indemnification provided for in this Section 5 is unavailable
to or insufficient to hold harmless an indemnified party under
subsection (A) or (B) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Ordinary Shares
and ADSs. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under
subsection (C) above, then each indemnifying party shall contribute
to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand
and the Underwriters on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Underwriters on the other shall
be deemed to be in the same proportion as the total net proceeds
from the offering of the Ordinary Shares and ADSs (before deducting
expenses) received by the Company bear to the total underwriting
commissions received by the Underwriters with respect to the
Ordinary Shares and ADSs. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by
the Company on the one hand or the Underwriters on the other and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this
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this subsection (D) were determined by PRO RATA allocation (even if
the Underwriters were treated as one entity for such purpose) or by
any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (D).
The amount paid or payable by an indemnified party as a result of
the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (D) shall be deemed to
include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this
subsection (D), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Ordinary Shares and ADSs underwritten by it and distributed to the
public in the US were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Underwriters' obligations
in this subsection (D) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(E) The obligations of the Company under this Section 5 shall be in
addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if
any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section 5 shall be in
addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions,
to each officer and director of the Company and to each person, if
any, who controls the Company within the meaning of the Act.
(F) This Section 5 shall be the exclusive provision under the terms of
the Agreement pertaining to indemnification and contribution arising
out of the Registration Statement, the ADR Registration Statement or
the US Prospectus, and no person entitled to indemnification or
contribution hereunder shall have the right to proceed under any
other provision of the Agreement in respect of such documents.
6. SURVIVAL OF PROVISIONS
The respective indemnities, agreements, representations and warranties of
the Company and the several Underwriters, as set forth in this SCHEDULE 3,
shall remain in full force and effect, regardless of any investigation (or
any statement as to the results thereof) made by or on behalf of any
Underwriter or any controlling person of any Underwriter or the Company,
or any officer or director or controlling person of the Company, or any
controlling person, and shall survive delivery of and payment for the
Underwritten Shares.
7. BINDING EFFECT
The provisions of this Schedule 3 shall be binding upon, and inure solely
to the benefit of, the Underwriters and the Company and to that extent
provided in Sections 5 and 6 hereof, the officers and directors of the
Company and each person who controls the Company or any Underwriter, and
their respective heirs, executors, administrators, successors and assigns,
and no other person shall acquire or have any right under or by virtue of
this Agreement. No purchaser of any of the New Shares or New ADSs from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
8. GOVERNING LAW AND SUBMISSION TO JURISDICTION
THE TERMS AND PROVISIONS OF THIS SCHEDULE 3 SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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Each of the parties hereto irrevocably (i) agrees that any legal suit,
action or proceeding arising out of or based upon the terms and provisions
of this SCHEDULE 3 or the transactions contemplated hereby may be
instituted in any New York court, (ii) waives, to the fullest extent it
may effectively do so, any objection which it may now or hereafter have to
the laying of venue of any such proceeding and (iii) submits to the
exclusive jurisdiction of such courts in any such suit, action or
proceeding. The Company has appointed an Authorized Agent upon whom
process may be served in any such action arising out of or based on this
SCHEDULE 3 or the transactions contemplated hereby which may be instituted
in any New York Court by any Underwriter or by any person who controls any
Underwriter, expressly consents to the jurisdiction of any such court in
respect of any such action, and waives any other requirements of or
objections to personal jurisdiction with respect thereto. Such appointment
shall be irrevocable. The Company represents and warrants that the
Authorized Agent has agreed to act as such agent for service at process
and agrees to take any and all action, including the filing of any and all
documents and instruments, that may be necessary to continue such
appointment in full force and effect as aforesaid. Service of process upon
the Authorized Agent and written notice of such service to the Company
shall be deemed, in every respect, effective service of process upon the
Company.
SIGNED BY )
duly authorised for and )
on behalf of )
PEARSON PLC )
SIGNED BY )
duly authorised for and )
on behalf of GOLDMAN )
SACHS INTERNATIONAL )
SIGNED BY )
duly authorised for and )
on behalf of )
CAZENOVE & CO. )