ESCROW AGREEMENT
between Xxxxx Finance S.A.
00, xxx Xxxx Xxxxxx Xxxxxxxx
X-0000 Xxxxxxxxxx
(hereinafter referred to as "SELLER")
and Triventura AG
c/x Xxxxxxx, Schatti+Partner AG
Xxxxxxxxxxxx 00x
0000 Xxxx / Xxxxxxxxxxx
(hereinafter referred to as "BUYER") on one part
The Seller and the Buyer hereinafter referred
to as the "PRINCIPALS")
and UBS AG
Xxxxxxxxxxxxxx 00
0000 Xxxxxx / Xxxxxxxxxxx
(hereinafter referred to as "ESCROW AGENT")
on the other part
WHEREAS, according to the Share Purchase Agreement II signed by and between
the Principals on December 5, 2006 (hereinafter the "SPA II") the Seller
has agreed to sell to the Buyer and the Buyer has agreed to purchase from
the Seller 12 million shares (the "Shares") in Adecco S.A. (ISIN
CH0012138606) (the "Company").
WHEREAS pursuant to the SPA II, the delivery of the Shares to the Buyer is
postponed until certain conditions precedent are fulfilled (the "Conditions
Precedent").
WHEREAS, in such framework the Principals have decided to entrust UBS AG as
Escrow Agent for the performance of the provisions of this Escrow
Agreement.
WHEREAS, the relationship between the Escrow Agent on the one hand and the
Principals on the other hand shall be solely and exclusively governed by
this present Escrow Agreement and neither of the Principals can assert any
claims whatsoever against the Escrow Agent from the SPA II. However,
nothing contained in this Escrow Agreement shall jeopardise the rights and
obligations between the Principals in any other agreement.
NOW THEREFORE IT IS AGREED AS FOLLOWS:
1 DEPOSIT OF THE SHARES INTO ESCROW CUSTODY
1.1. Opening of the Escrow Account and the Escrow Custody
Upon signing of the Escrow Agreement, the Seller shall open a
custody account in its name with UBS XX, XX-0000 Xxxxxx (the
"Escrow Custody" under the number 0230-401025.S4, bearing the
designation "ESCROW XXXXX / TRIVENTURA". In the same time the
Escrow Agent shall open a CHF current account in its name with
UBS XX, XX-0000 Xxxxxx (the "Escrow Account") under the number
0230-466830.01U, bearing the designation "Escrow Xxxxx /
Triventura").
1.2. Deposit of the Shares into the Escrow Custody
1.2.1. The Seller shall deliver 12 million Shares within 3
Business Days after the signing of the Escrow Agreement
into the Escrow Custody. For the purposes of this Escrow
Agreement "Business Day" shall mean a day on which banks
are open for business in Zurich, excluding Saturday,
Sundays and public holidays).
1.2.2. It is understood that the Escrow Agent shall have no duty
whatsoever to take any measures for the collection of
Shares and or funds, if any, other than to inform the
Principals of their non-entry into the Escrow Custody or
the Escrow Account in accordance with the provisions of
the Escrow Agreement.
1.2.3. The Seller hereby irrevocably instructs the Escrow Agent
to deliver the Shares strictly according to Article 2 of
this Escrow Agreement and the Buyer takes note of these
instructions. Information of purely informative character
(such as change of addresses etc) shall be given
individually by the party concerned.
1.2.4. The Shares deposited in the Escrow Custody shall remain in
the ownership of the Seller until delivery of the Shares
in accordance with the Escrow Agreement, including any
dividends, distributions, and other benefits. Any such
dividends, distributions and other benefits shall not be
kept in escrow, but credited directly to an account
designated by the Seller up and until the termination of
the Escrow Agreement.
1.2.5. All voting rights pertaining to the Shares, while in
escrow, shall be exercised directly by the Seller
1.2.6. In order to secure the Escrow Agent's obligations out of
this Escrow Agreement, the Seller herewith pledges the
assets in the Escrow Custody. However, the Escrow Agent's
rights of pledge are strictly connected to this Escrow
Agreement. Therefore, the Escrow Agent waives any rights
of pledge, retention, lien or security of any kind it
might otherwise have to the assets in the Escrow Custody
as security for any other claim it might have towards the
Seller and/or the Buyer.
2 DELIVERY OF THE SHARES AND PAYMENT OUT OF THE ESCROW ACCOUNT
2.1. The Escrow Agent shall deliver the Shares out of the Escrow
Custody and effect any payment out of the Escrow Account at any
time in accordance with the joint and corresponding written
instructions by the Principals; or
In the absence of such joint and corresponding written
instructions, the Escrow Agent shall deliver the Shares as
follows:
2.2. On June 30, 2007 or on any other date agreed in writing between
the Principals and communicated in writing to the Escrow Agent,
to the Buyer after receipt of the purchase price for the Shares
into the Escrow Account by the Escrow Agent, provided however
that:
1) the purchase price for the Shares corresponds to the amount
indicated in writing to the Escrow Agent by the Seller; and
2) the Seller has confirmed in writing to the Escrow Agent (with
a copy to the Buyer) at least one Business Day prior to the
payment of the purchase price by the Buyer, that the conditions
precedent set out in the Share Purchase Agreement II are
fulfilled.
Upon delivery of the Shares to the Buyer, the Escrow Agent shall
simultaneously transfer the purchase price for the Shares from
the Escrow Account to the Seller.
2.3. At any time prior to June 30, 2007 or on any other date agreed in
writing between the Principals and communicated in writing to the
Escrow Agent, to the Buyer after receipt of the purchase price
for the Shares into the Escrow Account by the Escrow Agent,
provided however that:
1) the purchase price for the Shares corresponds to the amount
indicated in writing to the Escrow Agent by the Seller; and
2) the Seller has confirmed in writing - and at least one
Business Day prior to the payment of the purchase price by
Buyer - to the Escrow Agent that the conditions precedent
and the condition for an Early Closing set out in the Share
Purchase Agreement II are fulfilled; and
3) the delivery of the Shares occurs 5 Business Days after
receipt by the Escrow Agent of a written notification of the
request by the Buyer to the Escrow Agent and the Seller for
an Early Closing as provided for in the Share Purchase
Agreement II.
Upon delivery of the Shares to the Buyer, the Escrow Agent shall
simultaneously transfer the purchase price for the Shares from
the Escrow Account to the Seller.
2.4. Notwithstanding articles 2.2 and 2.3 above, at any time after
June 30, 2006 or any other date agreed in writing between the
Principals and communicated in writing to the Escrow Agent, to
the Seller if required by the Seller in accordance with the sole
instructions of the Seller.
2.5. At any time after June 30, 2007 or any other date agreed in
writing between the Principals and communicated in writing to the
Escrow Agent, to the Seller in accordance with the sole
instructions of the Seller.
2.6. In the absence of any Instruction as per article 2.1 to 2.5, the
Escrow Agent shall make any delivery or any payment in accordance
with a final and enforceable arbitration award (the "Award")
issued by arbitrators appointed in accordance with article 15
below.
3 INDEMNITY
Each Principal undertakes to indemnify and hold harmless the Escrow
Agent for all and any direct losses, reasonable costs, reasonable
expenses, liabilities, claims, actions or demands including court and
reasonable legal costs which it may cause to the Escrow Agent under
this Escrow Agreement, except for the gross negligence or wilful
misconduct of the Escrow Agent. For the avoidance of doubt the joint
and several liability of the Principals is excluded.
4 LIMITATIONS
4.1 The Principals acknowledge and agree that any measures taken by
any court or authority having jurisdiction over the Escrow Agent
which might result in preventing the Escrow Agent from executing
its obligations under this Escrow Agreement shall have to be
taken into consideration and be valuable excuse for the Escrow
Agent for not being able to perform in due time so long as such
measures are in effect.
4.2 The Escrow Agent shall be protected in acting upon any written
notice, request, demand, waiver, consent, receipt or other paper
or document furnished to it, not only as to its due execution and
the validity and effectiveness of its provisions but also as to
the truth and acceptability of any information therein contained,
which it in good faith believes to be genuine and what it
purports to be according to the Escrow Agent's own usual banking
standards.
4.3 The Escrow Agent shall not be liable for any error of judgement,
or for any act done or step taken or omitted by it in good faith
(provided however that the Escrow Agent complies with its own
usual banking standards), or for any mistake of fact or law, or
for anything which it may do or refrain from doing in connection
herewith, except for its own gross negligence or wilful
misconduct.
4.4 The Escrow Agent shall be under no obligation to institute,
appear in or defend any action, suit or legal or arbitration
proceeding in connection with this Escrow Agreement or to take
any other action likely to involve it in liability, cost or
expense, unless first indemnified to its satisfaction.
5 NOTICES
Any and all notices or other instruments or papers to be sent to the
Escrow Agent by any other party hereto pursuant to this Escrow
Agreement shall be delivered personally or sent by registered mail. If
the Escrow Agent receives such notices or other instruments or papers
in a different way, he is free to regard them as received or not and
will not be liable towards any other party for his decision.
Anything to be sent to any party hereto has to be mailed to the
following addresses:
if to the Seller to: Xxxxx Finance S.A.
00, xxx Xxxx-Xxxxxx Xxxxxxxx
X-0000 Xxxxxxxxxx
Tel.: x000 000 00 00
Fax: x000 000 00 00
Attn. Xx. Xxxxxx Xxxxxxxxxxxx
if to the Buyer to: Triventura AG
x/x Xxxxxx Xxxxxxx XX
X.X. Xxx
0000 Xxxxxx / Xxxxxxxxxxx
Tel.: + + 00 00 000 00 00
Fax: + + 00 00 000 00 00]
Attn. Corporate Secretary
With a copy to Xx. Xxxxxxxxx Xxxxxx,
White & Case, Xxxxxxxxxxxxx 00,
00000 Xxxxxxx
if to the Escrow Agent to: UBS AG
AT21 A4L8-Z5M
Talacker 00, 0xx Xxxxx
0000 Xxxxxx / Xxxxxxxxxxx
Tel.: x00 0 000 00 00 / x00 0 000 00 00
Fax: x00 0 000 00 00
Attn. Mehdi Zaouia or Xxxx-Xxxxxx Xxxxxxx
6 SIGNATURES
Any and all notices or other instructions or papers to be sent to the
Escrow Agent by any other party to this Escrow Agreement shall be
signed by the person(s) mentioned in the respective authorized
signatories (ANNEXES NO -1-). The Escrow Agent is, nevertheless, free
(but not obliged) to accept signatures of other persons authorised to
represent the respective party.
7 GENERAL CONDITIONS
The "general conditions" (ANNEX NO. -2-) and the "Safe Custody
Regulations" (ANNEX NO.-3-) of the Escrow Agent shall be considered as
an integral part of this Escrow Agreement, excepting only that the
specific terms and conditions stated in this Escrow Agreement shall
supersede any other terms and conditions.
8 ENTIRE AGREEMENT
This Escrow Agreement contains the entire agreement among the parties
hereto with respect to the specific subjects covered hereby. It may
not be modified or discharged, nor may any of its terms be waived,
except by a written amendment signed by all parties hereto.
9 SEVERABILITY
Should any provision of this Escrow Agreement be prohibited or
ineffective or otherwise unenforceable in whole or in part for
whatever reason, such provision shall cease to have effect without
prejudicing the validity of the other provisions hereunder. The
parties hereto or the court having jurisdiction hereupon will replace
such provision by another provision so that, to the extent possible,
the economic balance of this Escrow Agreement will be preserved.
10 ASSIGNMENT
This Escrow Agreement shall be binding upon and enure to the benefit
of the respective successors and assigns of the parties hereto. It is
agreed, however, that no party may assign any of its rights or
obligations hereunder without the written consent of the other
parties, except that the Buyer's consent shall not be necessary for
the Seller to assign this Escrow Agreement to a wholly owned
subsidiary of the Seller should the Seller decide to transfer and
assign the SPA II to the same subsidiary. Any cost in connection with
the assignment shall be borne by the Seller.
11 ENTRY INTO FORCE
This present Escrow Agreement enters into force upon signing by all
parties.
12 TERMINATION
The Escrow Agreement shall terminate once all the Escrow Shares are
completely delivered and the purchase price completely paid out
according to Article 2 above.
Prior to delivery of the Shares and payment out according to Article 2
above, this Escrow Agreement may be immediately terminated upon
written termination notice signed by Seller and Buyer. In such a case,
the Escrow Agent shall transfer the Shares as per Seller's
instructions and pay out any purchase price into the Escrow Account as
per Buyer's instructions.
In the event that any balance should remain in the Escrow on 31st
December 2008, the Escrow Agent shall have the right to withdraw from
this Escrow Agreement at any time, observing a three-month's notice
period. During this period, the Principals shall jointly designate a
new depository and Escrow Agent. Should no such designation take place
within this period, the Escrow Agent shall be entitled to designate a
new depositary and Escrow Agent of its own choice.
13 ESCROW FEES
Any and all fees of the Escrow Agent shall be shared between the
Principals as follows:
13.1 a flat and all in fee for the Escrow Agent's services in the
amount of CHF 49'000 plus VAT if applicable payable by the Buyer
within 30 days after the Escrow Agent's invoice, even if the
Escrow Agreement is terminated prior to June 30, 2007.
13.2 a custody yearly flat fee for the maintenance of the custody
account in the amount of CHF 10'000.--per annum, plus VAT, if
applicable payable by the Seller.
For the avoidance of doubt the joint and several liability of the
Principals is excluded.
14 CONFIDENTIALITY
This Escrow Agreement is confidential upon the Parties and shall not
be disclosed to any third party except as may be required by law or by
any competent authority or judicial body.
15 APPLICABLE LAW AND PLACE OF JURISDICTION
This Escrow Agreement is governed by Swiss substantive law to the
exception of principles on the conflict of laws.
Any dispute between the parties hereto arising out of this Escrow
Agreement regarding its interpretation, performance, validity,
termination and, in general, all the obligations provided herein which
cannot be amicably settled among the parties hereto shall be submitted
to the jurisdiction of a panel of three arbitrators in accordance with
and subject to the Rules of Arbitration of the International Chamber
of Commerce, Paris, then in force. The arbitrators will be appointed
pursuant to such rules. The arbitration will take place in Geneva,
Switzerland, in English language. The cost of any arbitration
proceeding will be assessed against the unsuccessful party and the
arbitrators will be required to make such cost part of any ruling
issued by them.
16 COUNTERPARTS
The Escrow Agreement shall be established and signed in three separate
counterparts, each of which shall be deemed to be an original but
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, this Escrow Agreement has been duly executed by the
parties hereto or their respective duly authorized officers or
representatives in the place and as of the date written below.
for the Seller Place/date:
Philippe Foriel-Destezet Luxembourg, December 27, 2005
for the Buyer Place/date:
Xxxxxxx Xxxxxx and Xxxxxx Xxxxxxx Zurich, December 20, 2005
for the Escrow Agent: Place/date:
UBS AG
Mehdi Zaouia and Xxxx-Xxxxxx Xxxxxxx Zurich, December 20, 2005
