Exhibit (d)(1)
EXECUTION COPY
AGREEMENT
dated 31 August 2003
between
XXXX XXXXXXXXX
Xxxxxxxxxxxxxx 00, XX-0000 Xxxxxx, Xxxxxxxxxxx ("RB")
XXXX XXXXXX
acting for himself and his family members
Xxxxxxxxxxxxxx 0, XX-0000 Xxxxxxxxxx, Xxxxxxxxxxx ("HK")
ZURICH VERSICHERUNGS-GESELLSCHAFT
acting for itself and certain other companies of
the Zurich Financial Services Group
Xxxxxxxxxx 0, XX-0000 Xxxxxx, Xxxxxxxxxxx ("Z")
III INSTITUTIONAL INVESTORS INTERNATIONAL CORP.
c/o Bruppacher Hug & Partner, Xxxxxxxx Xxxxxxx 000,
XX-0000 Xxxxxxxx, Xxxxxxxxxxx ("III")
(each a "SHAREHOLDER" and collectively the "SHAREHOLDERS")
and
XXXXXX HOLDINGS, INC.
000 Xxxx Xxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
Xxxxxx Xxxxxx of America ("ZIMMER")
REGARDING
A PUBLIC TENDER OFFER TO ALL SHAREHOLDERS OF INCENTIVE CAPITAL AG
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WHEREAS:
(A) Zimmer is a Delaware corporation with its principal place of business in
Warsaw, Indiana, whose shares of common stock, par value USD 0.01 per
share (the "ZIMMER SHARES"), are listed on the New York Stock Exchange.
(B) Centerpulse AG ("CENTERPULSE") is a Swiss company limited by shares with
registered seat in Zurich whose share capital amounts to CHF 354,919,350,
divided into 11,830,645 registered shares with a par value of CHF 30 each
(the "CENTERPULSE SHARES"), listed on the SWX Swiss Exchange and, in the
form of American Depository Receipts, on the New York Stock Exchange.
(C) Desirous to combine its business with the business of Centerpulse, Zimmer
submitted, on 19 June 2003, a public tender offer for all publicly held
Centerpulse Shares pursuant to the terms and conditions set forth in an
offer prospectus dated 19 June 2003 (as amended, the "CENTERPULSE
PROSPECTUS") (the "CENTERPULSE TENDER OFFER").
(D) InCentive Capital AG ("INCENTIVE"), a Swiss company limited by shares with
registered seat in Zug whose share capital amounts to CHF 42,944,040,
divided into 2,147,202 fully paid-up bearer shares with a par value of CHF
20 each which are listed on the SWX Swiss Exchange (the "INCENTIVE
SHARES"), holds 2,237,577 Centerpulse Shares, representing 18.91% of the
voting rights and capital stock of Centerpulse.
(E) Concurrently with the Centerpulse Tender Offer, on 19 June 2003, Zimmer
submitted a public tender offer for all InCentive Shares pursuant to the
terms and conditions set forth in an offer prospectus dated 19 June 2003
(as amended, the "INCENTIVE PROSPECTUS") (the "PUBLIC TENDER OFFER").
(F) Following extended proceedings in relation to the Centerpulse Tender Offer
and the Public Tender Offer, the Federal Banking Commission, in a ruling
dated 15 August 2003 (the "FBC RULING"), decided, inter alia, that the
Public Tender Offer has to be partially amended, which ruling is, however,
subject to an appeal before the Federal Supreme Court.
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(G) The Shareholders, who hold in the aggregate 1,650,190 InCentive Shares,
representing approximately 76.85% of the voting rights and capital stock
of InCentive, all as set forth in Schedule (D), and Zimmer have determined
that it is in the best interest of all the parties to remove the
uncertainty caused by the fact that the FBC Ruling may be appealed and the
appeal period will expire only after the expiry of the Centerpulse Offer
and the Public Tender Offer.
NOW, THEREFORE, the Parties agree as follows:
1. DEFINED TERMS
As used in this Agreement, the capitalised terms shall have the meaning
set forth in Schedule 1.
2. IMPLEMENTATION OF THE PUBLIC TENDER OFFER
BY ZIMMER
2.1. THE OFFER PRICE
The price offered under the Public Tender Offer will be determined in
accordance with section 2.3 of the InCentive Prospectus (as amended),
provided that the adjusted net asset value of InCentive as of the last day
of the Offer Period of CHF 115,490,610, as it has been determined by
InCentive and confirmed by PricewaterhouseCoopers in the Report, (the
"ADJUSTED NAV") shall be final and binding upon the Parties for all
purposes.
2.2. CONDITIONS OF THE PUBLIC TENDER OFFER
The Parties confirm and agree that the conditions of the Public Tender
Offer set forth in section 2.5 of the InCentive Prospectus (the "INCENTIVE
CONDITIONS") are satisfied . Zimmer shall declare the Public Tender Offer
unconditional on the fourth Business Day following the expiration of the
Offer Period.
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2.3. IMPLEMENTATION OF THE FBC RULING
Zimmer shall comply in all respects with the FBC Ruling. The Parties
hereby waive their right to appeal against the FBC Ruling.
2.4. SECONDARY LISTING OF ZIMMER SHARES
Zimmer shall use all reasonable efforts to procure that the Zimmer Shares
obtain a secondary listing on the SWX Swiss Exchange as of the Settlement
Date or as soon as possible thereafter.
3. OBLIGATIONS OF THE SHAREHOLDERS IN RELATION TO THE PUBLIC TENDER OFFER
3.1. TENDER OF INCENTIVE SHARES BY THE SHAREHOLDERS
Each Shareholder has tendered to Zimmer, and not withdrawn, all InCentive
Shares held by him prior to the Signing Date.
3.2. SETTLEMENT OF THE PUBLIC TENDER OFFER
On the Settlement Date, the whole of the consideration determined in
accordance with Section 2.1 payable to each Shareholder (Zimmer Shares and
cash) for the InCentive Shares sold by such Shareholder shall be
distributed as follows:
(a) to the Escrow Agent an amount necessary to fund the ongoing cash
escrow required under the Escrow Agreements according to Section
6.1; and
(b) the balance of the consideration to such Shareholder.
If the cash to be deducted under paragraph (a) of this Section 3.2 exceeds
the cash payable to the relevant Shareholder, Zimmer may sell sufficient
Zimmer Shares to realise an adequate amount of cash.
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3.3. NON-SOLICITATION
Each Shareholder agrees that it shall immediately cease and cause to be
terminated all existing discussions, negotiations and communications
between itself or any of its subsidiaries and any persons with respect to
any Acquisition Transaction (as defined below) other than with respect to
the public tender offer for InCentive submitted by Xxxxx & Nephew. Except
as otherwise contemplated by this Agreement, none of the Shareholders or
their respective subsidiaries shall solicit or initiate any discussions or
negotiations with any corporation, partnership, person or other entity or
group (other than Zimmer or any affiliate or associate of Zimmer)
concerning any merger, consolidation, business combination, liquidation,
reorganisation, sale of substantial assets, sale of shares of capital
stock or similar transaction involving InCentive or any subsidiary of
InCentive (each an "ACQUISITION TRANSACTION"), provided that nothing
contained in this Section 3.3 shall restrict InCentive's board of
directors in taking and disclosing to InCentive's shareholders or any
third parties or governmental or regulatory bodies a position with respect
to an Acquisition Transaction initiated by a third party, or in making
such other disclosure to InCentive's shareholders or any third parties or
governmental or regulatory bodies, which, as advised by outside counsel,
is advisable under applicable law.
3.4. NO ACQUISITION OR DISPOSAL OF SHARES
Unless Zimmer shall have given its prior written consent or declared that
the Public Tender Offer has failed, none of the Shareholders or any of
their respective subsidiaries shall, after the Signing Date:
(a) acquire any Centerpulse Shares or rights to acquire Centerpulse
Shares or, other than by way of the settlement of the Centerpulse
Tender Offer, sell or otherwise dispose of any Centerpulse Shares;
or
(b) acquire any InCentive Shares or rights to acquire InCentive Shares
or, other than by way of the settlement of the Public Tender Offer,
sell or otherwise dispose of any InCentive Shares;
provided (i) that each Shareholder shall have the right to acquire, sell
or otherwise dispose of any Centerpulse Shares and/or any InCentive Shares
and/or any
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instruments derived therefrom and/or based thereon after the expiry of a
period of six months following the end of the Statutory Extension Period
and (ii) that nothing contained in this Section 3.4 shall restrict
InCentive Asset Management AG or Z from acquiring or selling Centerpulse
Shares or InCentive Shares on the account of third parties (other than
InCentive or any Shareholder or any related person pursuant to article 15
SESTO-FBC) on the basis of asset management agreements or otherwise.
3.5. CO-OPERATION IN PREPARATION OF OFFER DOCUMENTS
Each Shareholder shall provide in a timely manner the information required
by law in relation to the preparation of any offer documents. Prior to the
publication of any offer document, Zimmer shall consult with InCentive and
the Shareholders with respect to, and shall give InCentive and the
Shareholders reasonable opportunity to review and comment on, information
in the offer documents relating to InCentive and the Shareholders,
respectively.
3.6. DETERMINATION OF THE ADJUSTED NAV AND ESTABLISHMENT OF INTERIM FINANCIALS
The Adjusted Net Asset Value has been determined in accordance with the
terms and conditions of the Public Tender Offer and confirmed by
PricewaterhouseCoopers in the Report and shall be final and binding on the
Parties for all purposes.
4. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
Each of RB, HK and III represents and warrants, severally and not jointly,
and as regards Section 4(c) (Legal Title) only with respect to the
InCentive Shares held by himself and not with respect to the InCentive
Shares held by the other Shareholders, that each of the following
statements is true and correct, and Z represents and warrants only as
regards Section 4(c) (Legal Title) with respect to the InCentive Shares
held by itself (and not with respect to any other Section or the InCentive
Shares held by the other Shareholders), except as otherwise set forth
hereafter, both on the Signing Date and on the Settlement Date:
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(a) Corporate Existence
InCentive and each of its fully consolidated subsidiaries is duly
and lawfully incorporated and existing under the laws under which it
is organised and has the full corporate power and authority to own
and use its assets and to conduct its business as the same is
currently being conducted.
(b) InCentive Share Capital
The share capital of InCentive amounts to CHF 42,944,040 and is
divided into 2,147,202 bearer shares with a par value of CHF 20
each, fully paid-up. There are no resolutions regarding the issuance
of new InCentive Shares other than the those that are entered into
the commercial register, and there are no options outstanding for
the issuance of new InCentive Shares.
(c) Legal Title
On the Settlement Date, the Shareholders are the sole and
unencumbered legal owners of InCentive Shares as set forth in
Recital (G), free and clear of any third party rights. There exist
no limitations under law, the articles of incorporation of InCentive
or any agreements or undertakings by which the Shareholders are
bound that would prevent the Shareholders from entering into or
performing their obligations under this Agreement.
(d) Financial Statements
The audited consolidated financial statements for the business year
ended 2002, as filed with the SWX Swiss Exchange (the "2002
FINANCIALS"), and the Interim Financials truly and fairly present
the financial position and results of operations of the InCentive
group at the dates and for the periods set forth therein. The 2002
Financials have been and the Interim Financials will be established
in conformity with IAS consistently applied, save, in respect of the
Interim Financials, for any inconsistencies and deviations from IAS
which are due to the fact that the Interim Financials are interim
financial statements and not year-end financial statements.
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(e) Determination of the Adjusted NAV
The Adjusted NAV has been determined in accordance with Schedule
4(e). Save as otherwise set forth in such schedule, the methods and
principles for determining the Adjusted NAV correspond to the
methods and principles which were consistently applied by InCentive
for determining the per share net asset value of the InCentive group
prior to the Signing Date.
(f) Absence of Liabilities
As of the Settlement Date, none of InCentive or any of its
subsidiaries has any debts, obligations or liabilities, whether due
or future, actual or contingent, arising out of or in connection
with any transaction entered into or completed prior to the
Settlement Date other than those reflected, reserved or provisioned
in the Interim Financials and which reduce the Adjusted NAV.
(g) Compliance with Laws
Except for matters which would not have a material adverse effect,
InCentive has, to the best knowledge of the Shareholders, complied
with and is presently in compliance with all laws, regulations,
reporting and licensing requirements and orders applicable to it.
(h) Taxes
All tax returns required to be filed prior to or on 31 December 2002
by or with respect to InCentive or any of its subsidiaries for all
taxable periods ending on or prior to 31 December 2002 have been
timely filed. All taxes shown to be due on such tax returns on or
prior to 31 December 2002, or which have been or will be assessed by
the competent tax authorities with respect to such tax returns, have
been timely paid or fully provisioned against. As of the Settlement
Date, any and all taxes which are due or become payable by InCentive
or any of its subsidiaries for any periods ending on or prior to the
Settlement Date or in respect of any transaction entered into or
completed prior to or on the Settlement Date have been fully
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paid or provisioned against in the Interim Financials and
accordingly reduce the Adjusted NAV.
(i) Social Security and Pensions
All social security, pension fund or similar payments due by
InCentive or any of its subsidiaries in favour of its employees
under the law or any benefit plans (collectively, the "BENEFIT
PLANS") have been fully paid or provisioned in the Interim
Financials. All contributions required to be made under the terms of
the law (as regards social security) or of any such Benefit Plans
have been timely made.
(j) Material Contracts
As of the Settlement Date, none of InCentive or any of its
subsidiaries is party to any material contract, agreement,
arrangement or undertaking.
(k) Litigation
There are no actions, suits or proceedings pending against, or to
the best knowledge of the Shareholders, threatened in writing
against InCentive or any of its subsidiaries before any court,
arbitral tribunal or administrative body, agency or commission
involving a claim which has not, or not to the full extent, been
provisioned in the 2002 Financials or the Interim Financials and
reduces the Adjusted NAV.
(l) No Further Representations and Warranties
No representations are made or warranties given, whether express or
implied, other than those made or given in this Section 4.
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5. INDEMNIFICATION IN CASE OF BREACH OF WARRANTIES
5.1. INDEMNITY OBLIGATION
Subject to the provisions of Section 5.2 to Section 5.5, each Shareholder
(including, for the avoidance of doubt, Z) agrees severally, and not
jointly with the other Shareholders, to indemnify and hold harmless
Zimmer, in the proportions set forth in par. 3) of Schedule 6.1(b),
against claims for breaches of the representations given by RB, HK and III
under Section 4, except, as regards Section 4(c) (Legal Title), only with
respect to the InCentive Shares held by himself and not with respect to
the InCentive Shares held by the other Shareholders.
5.2. TERM AND NOTIFICATION PERIOD
5.2.1.The representations and warranties set forth in Section 4 (other than
with respect to the title warranty in Section 4(c) or fraud pursuant to
article 28 CO) shall be valid for a period of 36 months from the
Settlement Date. If Zimmer fails so to notify the Shareholders prior to
the last Business Day of such 36 months period, it shall be deemed to have
waived, and shall be precluded from raising, any claim or right against
the Shareholders for misrepresentation or breach of warranty in respect of
such claim.
5.2.2.Should Zimmer detect any misrepresentation or breach of warranty, or
should a third party raise or threaten in writing to Zimmer or any of its
subsidiaries to raise a claim which is reasonably likely to give rise to a
claim for misrepresentation or breach of warranty, then, following 31
March 2004, Zimmer shall be obliged, within 90 Business Days from having
obtained reasonable knowledge of the circumstances of such
misrepresentation or breach of warranty or of such third party claim, to
notify the Shareholders in writing describing the facts or the claim in
reasonable detail. If Zimmer fails to so notify the Shareholders, it shall
be deemed to have waived any claim or right against the Shareholders for
misrepresentation or breach of warranty in respect of such claim, unless
Zimmer is able to show that the Shareholders have not actually been
prejudiced by such failure.
0.0.0.Xx statutory examination or notification requirements apply. The
provisions contained in this Section 5.2 shall supersede the provisions of
articles 201 and
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210 CO which shall not be applicable to this Agreement. The Shareholders
explicitly waive Articles 201 and 210 CO.
5.3. LIMITATIONS
(a) The obligation of each Shareholder to indemnify pursuant to Section
5 is limited as follows:
(i) other than in the case of Section 4(f), only claims which on a
stand-alone basis exceed the amount of CHF 50,000 may be made,
it being understood that any and all claims exceeding such
amount shall be taken into account in full. For the purposes
of this Section several claims based on the same set of facts
or origin shall be deemed to be one claim;
(ii) each Shareholder shall severally, but not jointly with the
other Shareholders, be liable for such damages in the
proportion set forth in par. 3) of Schedule 6.1(b), however
not exceeding the escrow amount paid on behalf of such
Shareholder into the escrow account under the Escrow
Agreements;
(iii) the maximum liability of a Shareholder (other than in respect
to the warranty given in respect to legal title in accordance
with Section 4(c) and fraud committed by such Shareholder
pursuant to article 28 CO) shall be limited to, and under no
circumstances exceed, the amount held in escrow of such
Shareholder as set forth in Schedule 6.1(b).
(b) If facts and circumstances which would give rise to a claim against
the Shareholders result in any financial benefits or financial
advantages to InCentive or Zimmer, then any damages will be reduced
by the amount equal to any such benefits and advantages. In
addition, the Shareholders shall not be liable in respect of a claim
of Zimmer for misrepresentation or breach of warranty:
(i) if and to the extent that such claim is covered by any
specific provision, reserve or expense in the 2002 Financials
or the Interim Xxxxx-
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cials relating to such claim, or if and to the extent such
claim can be compensated to the extent permitted by law and
applicable accounting principles consistently applied
dissolving provisions made for any purpose in the 2002
Financials or the Interim Financials;
(ii) if and to the extent that such claim is provided for or
reflected in the Adjusted NAV;
(iii) if and to the extent that costs, damages and expenses have
been recovered from a third party (including without
limitation an insurance company), after deduction of all
direct costs and expenses incurred in making such recovery
(including reasonable attorney's fees);
(iv) if and to the extent that, as a result of a claim for
misrepresentation or breach of warranty, any tax payable by
InCentive or its subsidiaries is or will be reduced; or
(v) if and to the extent that any damage or loss has been caused
or increased by the fact that Zimmer shall have failed to
comply, or cause InCentive or its subsidiaries to comply with,
the duty to mitigate the damage caused by a misrepresentation
or breach of warranty.
5.4. THIRD PARTY CLAIMS
If any claim is raised by a third party against InCentive which has been
notified by Zimmer pursuant to Section 5.2, the following provisions of
this Section 5.4 shall apply:
(a) if the aggregate level of claims made by third parties has not
exceeded, nor is it likely to exceed, CHF 500,000, the Shareholders,
represented for such purpose by InCentive Asset Management AG, shall
use their commercially reasonable efforts in assisting Zimmer or
InCentive in the defence of such claim. Zimmer shall not, and shall
procure that InCentive does not, settle any such claim without prior
written consultation with the Shareholders, represented for such
purpose by InCentive Asset Management AG.
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(b) If the aggregate level of claims made by third parties has exceeded
or is likely to exceed CHF 500,000 but is unlikely to exceed CHF
15,000,000, and if the Shareholders, represented for such purpose by
InCentive Asset Management AG, acknowledge their liability in
writing and deliver to Zimmer and the Escrow Agent an instruction in
writing instructing the Escrow Agent to release to Zimmer an amount
equivalent to the liability as shall be agreed or adjudicated at the
time of such agreement or adjudication, then the Shareholders,
represented for such purpose by InCentive Asset Management AG, shall
have the right to compromise or defend, at their own cost and
expense and by their own counsel, any such matter. If the
Shareholders are willing to compromise or defend any asserted
liability, they shall promptly notify Zimmer of their intention to
do so, and Zimmer shall co-operate with, and provide at the cost and
expense of the Shareholders appropriate documentation and support as
reasonably requested by the Shareholders, represented for such
purpose by InCentive Asset Management AG, or their counsel in
connection with the compromise or defence of such asserted
liability. Zimmer shall have the right to participate, at its own
expense, in the defence of such asserted liability.
(c) If the aggregate level of claims made by third parties has exceeded
or is likely to exceed CHF 15,000,000, and if Zimmer so elects, then
Zimmer shall have the right to compromise or defend, at its own cost
and expense, and by its own counsel, any such matter. In such
circumstances, the Shareholders shall co-operate with, and provide
at the cost and expense of Zimmer, appropriate documentation and
support as reasonably requested by Zimmer, in connection with the
compromise or defence of such asserted liability.
(d) Zimmer may direct the Shareholders to agree to compromise any
asserted liability against InCentive or its subsidiaries at any
time, provided that Zimmer at the same time waives its rights for
indemnification from the Shareholders for misrepresentation or
breach of warranty under this Agreement.
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5.5. REMEDIES EXCLUSIVE
The remedies set forth in this Section 5 shall be in lieu of any remedies
provided for by the law. All remedies provided for by the law including,
without limitation, the right to rescind this Agreement, are explicitly
waived.
5.6. INDEMNIFICATION AND NO RECOURSE AMONG SHAREHOLDERS
5.6.1.Z shall not have any claim or recourse against any of the other
Shareholders in the event that amounts are drawn from Z's escrow account
under Z's Escrow Agreement, except under the circumstances set forth in
Section 5.6.2.
5.6.2.Should the escrow amounts deposited on the escrow accounts under the
Escrow Agreements on the account of any of the Shareholders be claimed by
and released to Zimmer as a result of a fraudulent or grossly negligent
breach of Section 4 (other than a breach of Section 4(c) by Z), then the
Shareholder who committed such breach shall indemnify Z for the escrow
amount deposited on the account of Z as if no breach of Section 4 had
occurred.
6. ESCROW
6.1. As security for any claims of Zimmer according to Section 5.1 and Section
7 (Indemnity for certain share purchases), (i) the Shareholders, Zimmer
and the Escrow Agent will execute the Escrow Agreements substantially in
the form contained in Schedule 6.1(a), and (ii) Zimmer shall, and shall be
entitled to, pay on the Settlement Date from the cash portion payable to
each Shareholder under the Public Tender Offer an amount to be determined
according to Schedule 6.1(b) to the escrow accounts pursuant to the Escrow
Agreements. The obligations of each Shareholder and of the Escrow Agent,
in particular regarding the release of the escrow amounts deposited in the
escrow accounts, shall be governed by the Escrow Agreements.
6.2. Zimmer shall, and shall be limited to, recover any amount due according to
Section 5.1 exclusively by recourse to the escrow amount deposited on the
escrow accounts under the Escrow Agreements, and the Shareholders shall be
under no obligation to discharge any claim of Zimmer under Section 5.1 by
any other
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means of payment, except that Zimmer shall have unfettered recourse to a
Shareholder who is in breach of Section 4(c) (Legal Title).
7. INDEMNITY FOR CERTAIN SHARE PURCHASES
In the event that any of the Shareholders or any of its respective
subsidiaries, in violation of Section 3.4, acquires or agrees to acquire
any Centerpulse Shares or any InCentive Shares or any rights to acquire
Centerpulse Shares or InCentive Shares after the Signing Date and Zimmer
is, as a result of any such acquisition, required by law to increase the
offer price under the Centerpulse Tender Offer or the Public Tender Offer,
then
(a) the Shareholder who has acquired or permitted that his subsidiary
acquire such shares (and only such Shareholder and not the other
Shareholders) shall indemnify Zimmer for, and hold Zimmer harmless
from, the total increased cost of the Public Tender Offer or the
Centerpulse Tender Offer, as the case may be, and any damages, loss,
claims, cost and expenses (including reasonable attorney's fees and
expenses) incurred or payable by Zimmer as a result of such required
offer price increase, provided that all Parties shall use
commercially reasonable efforts to resist such requirement to
increase the offer price under the Centerpulse Tender Offer or the
Public Tender Offer including, if necessary, recourse to the courts;
and
(b) Zimmer shall have the right to set-off to the fullest extent
possible its claim under Section 7(a) against the consideration
(calculated, for the avoidance of doubt, on the basis of the Offer
Price) payable to such Shareholder, and only such Shareholder and
not the other Shareholders. The Shareholders hereby waive the
requirement of same kind of consideration (Gleichartigkeit) for the
set-off.
8. CORPORATE NAME, TRADEMARKS AND DOMAIN NAME "INCENTIVE"
8.1. As from the Settlement Date, any rights to use the word or logo
"InCentive" or any combination including the word or logo "InCentive" in
connection with cor-
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porate names, trade names, trade and service marks, domain names, logos or
otherwise shall be the sole and unrestricted property of InCentive Asset
Management AG or any other company controlled by or under common control
of RB. The Representatives shall procure that any transfer by InCentive
shall be effected without residual liabilities to InCentive.
8.2. Zimmer shall procure that InCentive as soon as possible and in no event
later than three months after the Settlement Date changes its corporate
names, trade names, trade and service marks, domain names and logos so
that they no longer include the word or logo "InCentive" or any
combination containing the word or logo "InCentive" or any other word or
words or logo or logos resembling the word or logo "InCentive". Subject to
the first sentence of this Section 8.2, as from the Settlement Date,
Zimmer shall not use, and shall procure that InCentive ceases and desists
from using, the word or logo "InCentive" or any combination including the
word or logo "InCentive" in any manner whatsoever in connection with
corporate names, trade names, trade and service marks, domain names, logos
or otherwise.
9. TERMINATION BY ZIMMER
Zimmer shall have the right to terminate this Agreement by notice to the
Shareholders with immediate effect if an event such as is set forth in the
first paragraph of Section 7 has occurred, to the extent necessary to
avoid an obligation to increase the Offer Price pursuant to article 10 (6)
TOO. In the event of a termination by Zimmer in accordance with the
preceding sentence of this Section 9, the provisions of this Agreement
shall cease to have any effect except for the provisions of Section 10 and
Section 11 which shall continue to be in effect for an indefinite period
of time. Such termination shall be without prejudice to the liabilities of
any Party for a prior breach of this Agreement.
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10. MISCELLANEOUS
10.1. ENTIRE AGREEMENT; MODIFICATIONS
This Agreement, together with the Public Tender Offer, constitutes the
entire agreement of the Parties concerning the object of this Agreement
and supersedes all previous agreements or arrangements, negotiations,
correspondence, undertakings and communications, oral or in writing. This
Agreement including this Section shall be modified only by an agreement in
writing executed by the Parties which shall explicitly refer to this
Section.
10.2. NO WAIVER
The failure of any of the Parties to enforce any of the provisions of this
Agreement or any rights with respect hereto shall in no way be considered
as a waiver of such provisions or rights or in any way affect the validity
of this Agreement. The waiver of any breach of this Agreement by any Party
shall not operate to be construed as a waiver of any other prior or
subsequent breach.
10.3. SEVERABILITY
If any provision of this Agreement is held to be invalid or unenforceable
for any reason, such provision shall, if possible, be adjusted rather than
voided, in order to achieve a result which corresponds to the fullest
possible extent to the intention of the Parties. The nullity or adjustment
of any provision of this Agreement shall not affect the validity and
enforceability of any other provision of this Agreement, unless this
appears to be unreasonable for any of the Parties.
10.4. NOTICES
Any notice, request or instruction to be made under or in connection with
this Agreement to any Shareholder shall be made to InCentive Asset
Management AG who shall act as notification agent for the Shareholders
under this Agreement. Any notice, request or instruction to be made under
this Agreement shall be made in writing and be delivered by registered
mail or courier or by facsimile (to be confirmed in writing delivered by
registered mail or courier) to the follow-
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ing addresses (or such other addresses as may from time to time have been
notified according to this Section 10.4):
(a) If to Zimmer:
Xxxxxx Holdings, Inc.
Attn. of Xxxxx X. Xxxxxx, Esq.
000 Xxxx Xxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
Xxxxxx Xxxxxx
Facsimile: x0 000 000 0000
with copies to:
Xxxxx Xxxxxxxxxx LLP
Attn. of Xxxxxx X. Xxxxxx, Esq.
M. Xxxx Xxxxxx-Far, Esq.
Xxxx X. Xxxxxx, Esq.
1301 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxx
Facsimile: x0 000 000 0000
Pestalozzi Lachanel Xxxxx
Attn. of Xx. Xxxxx Xxxx, Esq.
Xxxxxxxxxxxx 0
0000 Xxxxxx, Xxxxxxxxxxx
Facsimile: x00 0 000 00 00
(b) If to any Shareholder:
InCentive Asset Management AG
Xxxxxxxxxxx 00
0000 Xxxxxx
Xxxxxxxxxxx
Facsimile: x00 0 000 00 00
with copies to:
Lombard Odier Darier Xxxxxxx & Cie
Zurich Branch
Attn. of Xx. Xxxxx Xxxxxxx
Xxxxxxxxxxx 00
XX-0000 Xxxxxx
Xxxxxxxxxxx
Facsimile: x00 0 000 00 00
-19-
Xxxx & Staehelin
Attn. of Xx. Xxxxxx Tschani
Xxxxxxxxxxx 00
XX-0000 Xxxxxx
Xxxxxxxxxxx
Facsimile: x00 0 000 00 00
Zurich Insurance Company
Group Finance Director and
General Counsel
Xxxxxxxxxx 0
0000 Xxxxxx
Facsimile: + 41 1 625 37 70
+ 41 1 625 34 97
Any notice, request or instruction made under or in connection with this
Agreement shall be deemed to have been delivered on the Business Day on
which it has been dispatched or the fax confirmation been received by the
Party making such notice, request or instruction.
10.5. CONFIDENTIALITY AND PRESS RELEASES
Without the prior written consent of Zimmer and the Representatives (which
consent shall not be unreasonably withheld), the Parties shall not
disclose to any third party and keep in strict confidence this Agreement
and its contents and shall not publish any press release or make any
public announcement in respect of the transactions contemplated by this
Agreement, unless any such disclosure, press release or public
announcement is required under applicable laws or stock exchange
regulations or ordered by any competent judicial or regulatory authority
or by any competent stock exchange (in which case the Parties shall, to
the extent permissible, consult with each other prior to any such
disclosure).
10.6. ASSIGNMENT
None of the Parties shall assign this Agreement or any rights or
obligations under this Agreement to any third party without the prior
written consent of all of the other Parties.
-20-
10.7. COST AND EXPENSES; TAXES
Each Party shall bear all cost, expenses and taxes incurred by it in
connection with the transactions contemplated by this Agreement, provided
that (a) Zimmer shall bear and pay the Swiss securities transfer tax
(Umsatzabgabe) and any transfer cost and expenses resulting from the
transfer of InCentive Shares and Centerpulse Shares to Zimmer and Zimmer
Shares to the Shareholders, and (b) the transaction cost and expenses
incurred by InCentive shall be subtracted in calculating the Adjusted NAV.
10.8. SEVERAL OBLIGATIONS AND LIABILITIES OF THE SHAREHOLDERS
None of the Shareholders shall be liable for the obligations of any other
Shareholder or the performance of the obligations of any other
Shareholder.
11. APPLICABLE LAW AND DISPUTE RESOLUTION
11.1. This Agreement is subject to and governed by Swiss substantive law.
11.2. Any disputes arising out of or in connection with this Agreement,
including disputes regarding its conclusion, binding effect, amendment and
termination, shall be finally resolved to the exclusion of the ordinary
courts by a three-person arbitral tribunal in accordance with the
International Arbitration Rules of the Zurich Chamber of Commerce. The
arbitration shall be conducted in English and the place of arbitration
shall be Zurich.
-21-
IN WITNESS WHEREOF, the Parties have executed this Agreement on the date first
above written.
XXXXXX HOLDINGS, INC.
/s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President, Corporate Affairs,
General Counsel and Secretary
ZURICH VERSICHERUNGS-GESELLSCHAFT
/s/ Xxxxxx X. Xxxxxxxx /s/ Xxxxxxxx Xxxxxx
------------------------------------ -----------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxxxxxx Xxxxxx
Title: Member of Executive Staff Title: Member of Senior Staff
III INSTITUTIONAL INVESTORS INTERNATIONAL CORP.
/s/ X. Xxxxxxxxxx
------------------------------------
Name: X. Xxxxxxxxxx
Title: Director
XXXX XXXXXXXXX
/s/ Xxxx Xxxxxxxxx
------------------------------------
XXXX XXXXXX
/s/ by proxy X. Xxxxxxxxxx
------------------------------------
SCHEDULE (D)
INCENTIVE SHARES HELD BY THE SHAREHOLDERS
As of the Signing Date, the Shareholders hold InCentive Shares as follows:
SHAREHOLDER NO. OF INCENTIVE SHARES %
----------- ----------------------- ------
Z 536,000 24.963
III 448,045 20.866
RB 429,445 20.000
HK 236,700 11.024
TOTAL 1,650,190 76.853
SCHEDULE 1
DEFINED TERMS
The capitalised terms used in the Agreement shall have the meaning ascribed to
them in this Schedule 1.
"2002 FINANCIALS" shall have the meaning set forth in Section 4(d).
"ACQUISITION TRANSACTION" shall have the meaning set forth in Section 3.3.
"ADJUSTED NAV" shall have the meaning set forth in Section 2.1.
"AGGREGATE ESCROW AMOUNT" shall have the meaning set forth in par. 2. of
Schedule 6.1(b).
"AGREEMENT" shall mean this agreement including all Schedules.
"BENEFIT PLANS" shall have the meaning set forth in Section 4(i).
"BUSINESS DAY" shall mean a day on which SWX Swiss Exchange is open for
normal trading.
"CENTERPULSE" shall have the meaning set forth in Recital (B).
"CENTERPULSE CONDITIONS" shall mean the conditions set forth in section
2.5 of the Centerpulse Prospectus.
"CENTERPULSE PROSPECTUS" shall have the meaning set forth in Recital (C).
"CENTERPULSE SHARES" shall have the meaning set forth in Recital (B).
"CENTERPULSE TENDER OFFER" shall have the meaning set forth in Recital
(C).
"CHF" shall mean Swiss Francs, being the lawful currency of Switzerland.
"CO" shall mean the Swiss Code of Obligations (Obligationenrecht) of 30
March 1911, as amended.
-2-
"ESCROW AGENT" shall mean BDO Visura, Xxxxxxxxxxxxx 00, XX-0000 Xxxxxx,
Xxxxxxxxxxx or any other suitable professional service provider located in
Switzerland as agreed between the Parties.
"ESCROW AGREEMENT" shall mean each of, and
"ESCROW AGREEMENTS" shall mean all of, the escrow agreements between
Zimmer, the Shareholders and the Escrow Agent signed on the Signing Date,
as contained in Schedule 6.1.
"FBC RULING" shall have the meaning set forth in Recital (F). "HK" shall
mean Xx. Xxxx Xxxxxx.
"III" shall mean III Institutional Investors International Corp.
"INCENTIVE" shall have the meaning set forth in Recital (D).
"INCENTIVE CONDITIONS" shall have the meaning set forth in Section 2.2.
"INCENTIVE PROSPECTUS" shall have the meaning set forth in Recital (E).
"INCENTIVE SHARES" shall have the meaning set forth in Recital (D).
"INITIAL AGGREGATE ESCROW AMOUNT" shall have the meaning set forth in par.
1. of Schedule 6.1(b).
"INTERIM FINANCIALS" shall mean the interim financials which InCentive has
established per the end of the Offer Period, consisting of a balance
sheet, profit and loss statements and the notes, as contained in the
Report.
"OFFER PERIOD" shall mean the period during which the Public Tender Offer
is open for acceptance by the InCentive shareholders according to article
14 (3) and (4) TOO (Angebotsfrist), excluding, for the avoidance of
doubts, the Statutory Extension Period (Nachfrist).
"OFFER PRICE" shall have mean the price offered under the Public Tender
Offer, determined in accordance with Section 2.1.
-3-
"PARTY" shall mean any of, and "PARTIES" shall mean all of, the parties
listed on the cover sheet of this Agreement.
"PUBLIC TENDER OFFER" shall have the meaning set forth in Recital (E).
"RB" shall mean Xxxx Xxxxxxxxx.
"REPORT" shall mean the Review Report to the Board of Directors on the
Consolidated Interim Financial Statements as of 27 August 2003 and the
calculation of the adjusted net asset value as per August 27, 2003 of
PricewaterhouseCoopers Ltd. in their capacity as auditors of InCentive
dated 28 August 2003.
"REPRESENTATIVES" shall mean RB and HK in their capacity as members of the
board of directors of InCentive.
"SCHEDULE" shall mean each schedule attached to this Agreement.
"SECTION" shall mean a section of this Agreement.
"SESTA" shall mean the Stock Exchange and Securities Trading Act
(Bundesgesetz uber die Borsen und den Effektenhandel) of 24 March 1995, as
amended.
"SESTO-FBC" shall mean the Stock Exchange and Securities Trading Ordinance
of the Federal Banking Commission (Borsenverordnung-EBK) of 25 June 1997,
as amended.
"SETTLEMENT DATE" shall mean the day on which the Public Tender Offer is
settled (vollzogen) for the first time.
"SHAREHOLDER" shall mean any of, and "SHAREHOLDERS" shall mean all of, RB,
HK, Z and III.
"SIGNING DATE" shall mean the date of this Agreement.
"STATUTORY EXTENSION PERIOD" shall mean the additional acceptance period
of 10 Business Days following completion (Zustandekommen) of the Public
Tender Offer according to article 14 (5) TOO (Nachfrist).
-4-
"TOO" shall mean the Takeover Ordinance of the Takeover Commission
(Verordnung der Ubernahmekommission uber offentliche Kaufangebote) of 21
July 1997, as amended.
"Z" shall mean Zurich Versicherungs-Gesellschaft.
"ZIMMER" shall mean Xxxxxx Holdings, Inc., as set out on the cover page of
the Agreement and in Recital (A).
"ZIMMER SHARES" shall have the meaning set forth in Recital (A).
SCHEDULE 4(E)
DETERMINATION OF THE ADJUSTED NAV
The Adjusted NAV has been determined according to this Schedule:
1. Except as otherwise set forth in this Schedule, the Adjusted NAV has been
determined and calculated by applying the methods and principles that were
applied by InCentive in determining its net asset value prior to the
Signing Date on a consistent basis (in particular according to
International Accounting Standards).
2. The Adjusted NAV is net of the impact of any distributions
(Ausschuttungen), if any, per InCentive Share made by InCentive from the
Signing Date until the Settlement Date.
3. All and any transaction costs payable by InCentive in connection with the
Agreement or the transactions contemplated by the Agreement have been
deducted from the Adjusted NAV.
4. Treasury Shares have not be taken into account in calculating the Adjusted
NAV.
5. For the avoidance of doubt, the value of Centerpulse Shares is excluded
from the definition of the Adjusted NAV and is accordingly not included in
the calculation of the Adjusted NAV.
SCHEDULE 6.1(a)
ESCROW AGREEMENTS
See attached.
[FORM OF ESCROW AGREEMENT]
dated [-] 2003
between
[RB / HK / Z / III]
[Address] ("SELLER")
and
XXXXXX HOLDINGS, INC.
000 Xxxx Xxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
Xxxxxx Xxxxxx of America ("ZIMMER")
and
[BDO XXXXXX]
[Xxxxxxxxxxxxx 00,
XX-0000 Xxxxxx, Xxxxxxxxxxx] ("ESCROW AGENT")
REGARDING
A CASH ESCROW
-2-
WHEREAS:
(A) The Seller and the other principal shareholders of InCentive Capital AG
(the "SHAREHOLDERS") and Zimmer (the Seller and Zimmer collectively the
"TRANSACTION PARTIES") entered into an Agreement dated [-] August 2003
regarding a public tender offer for all shares of InCentive Capital AG
attached as Annex (A) (the "AGREEMENT").
(B) Each Shareholder individually and Zimmer agreed in the Agreement to enter
into escrow agreements between each Shareholder and Zimmer, and that
Zimmer shall deliver part of the consideration due to each Shareholder
under the Agreement into escrow as security for claims of Zimmer for
misrepresentation or breach of warranties by the Shareholders under the
Agreement.
(C) The Transaction Parties wish to appoint the Escrow Agent as escrow agent,
and the Escrow Agent is willing to accept such mandate.
NOW, THEREFORE, the parties hereto (each a "PARTY", collectively the "PARTIES")
agree as follows:
1. CAPITALISED TERMS
Unless otherwise defined in this escrow agreement (together with all
Annexes attached hereto, the "ESCROW AGREEMENT"), the capitalised terms
used herein shall have the same meaning as in the Agreement.
2. ESCROW ACCOUNT AND ESCROW FUNDS
2.1. ESCROW ACCOUNT
The Escrow Agent has opened in his name with [Swiss Bank, address, Swift
Code] a bank account no. [-] (the "ESCROW ACCOUNT").
-3-
2.2. ESCROW FUNDS
According to section 6.1 of the Agreement, Zimmer shall wire transfer with
value of the Settlement Date an amount of CHF [-] (the "ESCROW FUNDS") to
the Escrow Account.
2.3. MANAGEMENT OF ESCROW FUNDS
2.3.1.The Escrow Agent shall not use or manage the Escrow Funds in any way
other than set forth in this Escrow Agreement.
2.3.2.The Escrow Agent shall manage the Escrow Funds according to the joint
written instructions of the Transaction Parties. Failing such joint
written instructions, the Escrow Funds shall be deposited in withholding
tax-free fiduciary deposits with banks of international repute outside of
Switzerland for fixed term periods of three months each.
2.3.3.The Escrow Agent shall keep the Transaction Parties informed about the
Escrow Accounts and the investments made on a regular basis by providing
to them the bank statements per the end of each calendar month, or upon
specific request by any of the Transaction Parties.
3. RELEASE OF THE ESCROW FUNDS
The Escrow Agent shall, and shall have the right and is hereby jointly
instructed by the Transaction Parties to, release the Escrow Funds
exclusively in accordance with this Section 3.
3.1. JOINT WRITTEN INSTRUCTIONS OF THE TRANSACTION PARTIES
The Escrow Agent shall release the Escrow Funds or part of it according to
the joint written instructions of the Transaction Parties, provided that
the Escrow Agent shall have received originals of such instructions.
-4-
3.2. FIRST RELEASE DATE
0.0.0.Xx the extent not previously released according to Section 3.1 and to be
retained according to Section 3.2.2, the Escrow Agent shall transfer the
Escrow Funds to a bank account as notified by the Seller in advance with
value of the first Business Day after the expiry of a period of 36 months
from the Settlement Date (the "FIRST RELEASE DATE").
3.2.2.The Escrow Agent shall retain and not transfer to the Seller the Escrow
Funds to the extent that the Escrow Agent has been notified by Zimmer in
writing at least five Business Days prior to the First Release Date that
Zimmer has notified the Shareholders of a claim for misrepresentation or
breach of warranty under the Agreement and that such claim is still
pending.
3.3. SECOND RELEASE DATE
0.0.0.Xx the extent not previously released according to Sections 3.1 or 3.2
and to be retained according to Section 3.3.2, the Escrow Agent shall
transfer the Escrow Funds to bank and securities accounts as notified by
the Seller in advance with value of the first Business Day after the
expiry of a period of 60 Business Days from the First Release Date (the
"SECOND RELEASE DATE").
3.3.2.The Escrow Agent shall retain and not transfer to the Seller the Escrow
Funds to the extent that the Escrow Agent has been notified by Zimmer in
writing at least five Business Days prior to the Second Release Date that
Zimmer has commenced arbitration under section 11.2 of the Agreement for
the determination of claims of Zimmer for misrepresentation or breach of
warranty by the Shareholders under the Agreement.
3.4. ACCORDING TO ARBITRAL AWARD
To the extent not previously released according to Sections 3.1, 3.2 or
3.3, the Escrow Agent shall release the Escrow Funds in accordance with a
final and binding arbitral award rendered under section 11.2 of the
Agreement.
-5-
4. FURTHER OBLIGATIONS OF THE ESCROW AGENT
The Escrow Agent will issue such confirmations and certifications as the
Transaction Parties may together request the Escrow Agent to issue. The
Escrow Agent shall grant the Parties access to the Escrow Accounts,
subject to common instructions by the Transaction Parties in writing.
5. FEES
During the term of this Escrow Agreement, each Transaction Party shall pay
to the Escrow Agent an annual fee of CHF [-] as compensation for all his
routine and ordinary duties and obligations under this Escrow Agreement.
In the event that the Escrow Agent has to become active, the Escrow Agent
shall be compensated on a time spent plus expenses basis, applying
standard hourly rates; each Transaction Party shall be liable to pay 50%
of the resulting costs only, unless otherwise decided in a final court
decision.
6. LIABILITY OF THE ESCROW AGENT; INDEMNITY
6.1. The Transaction Parties hereby release the Escrow Agent from any and all
liabilities, except for willful misconduct or gross negligence on the part
of the Escrow Agent, for any acts which the Escrow Agent shall perform in
good faith.
6.2. The Transaction Parties shall indemnify the Escrow Agent for any
reasonable commitments, responsibilities, costs and expenses which result
from the lawful exercise of this mandate and they shall advance to the
Escrow Agent, at the Escrow Agent's first written request, such reasonable
cash amounts as are necessary to cover such commitments, responsibilities,
costs and expenses. Unless such advance is received by the Escrow Agent,
the Escrow Agent shall not incur such additional commitments,
responsibilities, costs and expenses.
-6-
7. TERM OF AGREEMENT
7.1. This Escrow Agreement shall remain in force and effect until, and shall
without further notice terminate on, the day of which the Escrow Funds has
been released in full in accordance with Section 3 (the "TERM"). The
provisions of Section 6 and Section 8 shall survive the Term and shall
remain in force and effect for an indefinite period of time following the
Term.
7.2. The Escrow Agent acknowledges that he is entitled to terminate this Escrow
Agreement prior to the Term only under exceptional circumstances in
accordance with article 476 (1) CO, and that article 404 CO shall not
apply.
7.3. In the event that the Escrow Agent is entitled to and terminates this
Escrow Agreement voluntarily or involuntarily prior to the Term, the
Transaction Parties shall forthwith jointly appoint a successor to act as
escrow agent (the "SUCCESSOR"), and the Escrow Agent shall, forthwith upon
notification by the Transaction Parties of name and other details of the
Successor, do all such things as are necessary to effectively transfer the
Escrow Accounts and the Escrow Funds to the Successor.
8. MISCELLANEOUS
8.1. ENTIRE AGREEMENT; MODIFICATIONS
This Escrow Agreement constitutes the entire agreement of the Parties
concerning the object of this Escrow Agreement and supersedes all previous
agreements or arrangements, negotiations, correspondence, undertakings and
communications, oral or in writing. This Escrow Agreement including this
Section shall be modified only by an agreement in writing executed by the
Parties which shall explicitly refer to this Section.
8.2. NO WAIVER
The failure of any of the Parties to enforce any of the provisions of this
Escrow Agreement or any rights with respect hereto shall in no way be
considered as a waiver of such provisions or rights or in any way affect
the validity of this Es-
-7-
crow Agreement. The waiver of any breach of this Escrow Agreement by any
Party shall not operate to be construed as a waiver of any other prior or
subsequent breach.
8.3. SEVERABILITY
If any provision of this Escrow Agreement is held to be invalid or
unenforceable for any reason, such provision shall, if possible, be
adjusted rather than voided, in order to achieve a result which
corresponds to the fullest possible extent to the intention of the
Parties. The nullity or adjustment of any provision of this Escrow
Agreement shall not affect the validity and enforceability of any other
provision of this Escrow Agreement, unless this appears to be unreasonable
for either of the Parties.
8.4. NOTICES
Any notice, request or instruction to be made under or in connection with
this Escrow Agreement to the Seller shall be made to InCentive Asset
Management AG who shall act as notification agent for the Seller under
this Escrow Agreement. Any notice, request or instruction to be made under
this Escrow Agreement shall be made in writing and be delivered by
registered mail or courier or by facsimile (to be confirmed in writing
delivered by registered mail or courier) to the following addresses (or
such other addresses as may from time to time have been notified according
to this Section 10.4):
(a) If to Zimmer:
Xxxxxx Holdings, Inc.
Attn. of Xxxxx X. Xxxxxx, Esq.
000 Xxxx Xxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
Xxxxxx Xxxxxx
Facsimile: x0 000 000 0000
with copies to:
Xxxxx Xxxxxxxxxx LLP
Attn. of Xxxxxx X. Xxxxxx, Esq.
M. Xxxx Xxxxxx-Far, Esq.
Xxxx X. Xxxxxx, Esq.
-8-
1301 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxx
Facsimile: x0 000 000 0000
Pestalozzi Lachanel Xxxxx
Attn. of Xx. Xxxxx Xxxx, Esq.
Xxxxxxxxxxxx 0
0000 Xxxxxx, Xxxxxxxxxxx
Facsimile: x00 0 000 00 00
(b) If to the Seller:
InCentive Asset Management AG
Xxxxxxxxxxx 00
0000 Xxxxxx
Xxxxxxxxxxx
Facsimile: x00 0 000 00 00
with copies to:
Lombard Odier Darier Xxxxxxx & Cie
Zurich Branch
Attn. of Xx. Xxxxx Xxxxxxx
Xxxxxxxxxxx 00
XX-0000 Xxxxxx
Xxxxxxxxxxx
Facsimile: x00 0 000 00 00
Xxxx & Staehelin
Attn. of Xx. Xxxxxx Tschani
Xxxxxxxxxxx 00
XX-0000 Xxxxxx
Xxxxxxxxxxx
Facsimile: x00 0 000 00 00
Zurich Insurance Company
Group Finance Director and
General Counsel
Xxxxxxxxxx 0
0000 Xxxxxx
Facsimile: + 41 1 625 37 70
+ 41 1 625 34 97
(c) If to the Escrow Agent:
[BDO Visura]
-9-
Attn. of [-]
[Fabrikstrasse 50]
[CH-8005 Zurich]
Switzerland
Facsimile: [x00 0 000 00 00]
Any notice, request or instruction made under or in connection with this
Escrow Agreement shall be deemed to have been delivered on the Business
Day on which it has been dispatched or the fax confirmation been received
by the Party making such notice, request or instruction.
8.5. CONFIDENTIALITY
Without the prior written consent of all of the Parties, each Party shall
not disclose to any third party and keep in strict confidence this Escrow
Agreement and its contents, unless any such disclosure is required under
applicable laws or stock exchange regulations or ordered by any competent
judicial or regulatory authority or by any competent stock exchange (in
which case the Parties shall, to the extent permissible, consult with each
other prior to any such disclosure).
8.6. ASSIGNMENT
None of the Parties shall assign this Escrow Agreement or any rights or
obligations under this Escrow Agreement to any third party without the
prior written consent of all of the other Parties.
8.7. COST AND EXPENSES
Subject to Section 6, each Party shall bear its own cost and expenses
incurred by it under this Escrow Agreement.
-10-
9. APPLICABLE LAW AND DISPUTE RESOLUTION
9.1. This Escrow Agreement is subject to and governed by Swiss substantive law.
9.2. Any disputes arising out of or in connection with this Escrow Agreement,
including disputes regarding its conclusion, binding effect, amendment and
termination, shall be finally resolved to the exclusion of the ordinary
courts by a three-person arbitral tribunal in accordance with the
International Arbitration Rules of the Zurich Chamber of Commerce. The
arbitration shall be conducted in English and the place of arbitration
shall be Zurich.
-11-
IN WITNESS WHEREOF, the Parties have executed this Escrow Agreement on the date
first above written.
XXXXXX HOLDINGS, INC.
______________________________________ ______________________________________
Name:_________________________________ Name:_________________________________
Title:________________________________ Title:________________________________
THE SELLER:
______________________________________
[BDO VISURA]:
______________________________________ ______________________________________
Name:_________________________________ Name:_________________________________
Title:________________________________ Title:________________________________
SCHEDULE 6.1(b)
THE ESCROW AMOUNT AND ALLOCATION TO THE SHAREHOLDERS
The escrow amounts payable to the escrow accounts under the Escrow Agreements
shall be determined as follows:
1. The initial escrow amount, aggregated for all Shareholders, shall be CHF
25,000,000 (the "INITIAL AGGREGATE ESCROW AMOUNT").
2. The Initial Escrow Amount shall be increased to the extent that
InCentive's Adjusted NAV at the end of the Offer Period includes
receivables in excess of CHF 1,000,000 (the resulting amount being the
"AGGREGATE ESCROW AMOUNT").
3. The Aggregate Escrow Amount shall be paid to the escrow accounts under the
Escrow Agreements in the following proportions:
Z 25% CHF 6,250,000
III 20.9% CHF 5,225,000
RB 34.9% CHF 8,725,000
HK 19.2% CHF 4,800,000
