Translation from the German Language
SHAREHOLDERS' COMMITMENT AGREEMENT
between
1. Xxxxxx Xxxxxxx XX, Xxxxxxxxxxx 00, 0000 Xxxxxx
(hereinafter referred to as "JAG")
2. Xxxxx X. Xxxxxx
Newsells Park Stud, The Xxxxx Xxxxx, Xxxxxxx Xxxxxxx, Xxxxxxxxxxxxx, XX0 0XX, XX
(hereinafter referred to as "KJJ")
3. Xxxxxx Xxxxxx
Newsells Park Stud, The Xxxxx Xxxxx, Xxxxxxx Xxxxxxx, Xxxxxxxxxxxxx, XX0 0XX, XX
(hereinafter referred to as "RJ")
4. Xxxxxxx Xxxxxx
Xxxxxxxxxxxxxxxxx 000, 0000 Xxxxxxxx
(hereinafter referred to as "LJ")
5. Xxxxxxx Xxxxxx
Xxxxxxx 00, 0000 Xxxxxx
(hereinafter referred to as "NiJ")
6. Xxxxxxxx Xxxxxx
St. Xxxxx Xxxxxxx 00, 0000 Xx. Xxxxxx
(hereinafter referred to as "PhJ")
7. Xxxxxxxx Xxxxxx
Xxxxxxxxxxxxxxxx 00, 0000 Xx. Xxxxxx
(hereinafter referred to as "NaJ")
(the Parties 2, 3, 4, 5, 6 and 7 are hereinafter also collectively referred to
as "Family", or, individually, as "Family Member").
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PREAMBLE
JAG and the Family each hold an interest in Xxxxxx Venture AG (hereinafter
referred to as "Venture").
JAG and the Family enter into this Shareholders' Commitment Agreement intending
to
(i) maintain and control the constitution of the circle of
shareholders of Venture through rights of first option,
preemptive rights and rights to purchase;
(ii) provide a set of rules for the Parties' mutual rights
and obligations; and
(iii) coordinate voting in the general meeting of shareholders
of Adecco SA.
Now, therefore, the Parties hereby agree as follows:
2. SUBJECT MATTER OF THE SHAREHOLDERS' COMMITMENT AGREEMENT
2.1. Upon entering into this Shareholders' Commitment Agreement, the Family
and JAG participate in the share capital of Adecco SA and Venture as
follows:
2.2. KJJ:
- 7,000,000 registered shares of Adecco SA with a nominal
value of CHF 1.00 nominal per share (Adecco shares),
- 576 registered shares of Xxxxxx Venture AG with a
nominal value of CHF 1,000 nominal per share (Venture
shares);
2.3. RJ:
- 5,802,471 registered shares of Adecco SA with a nominal
value of CHF 1.00 nominal per share (Adecco shares),
- 478 registered shares of Xxxxxx Venture AG with a
nominal value of CHF 1,000 nominal per share (Venture
shares);
2.4. LJ:
- 601,500 registered shares of Adecco SA with a nominal
value of CHF 1.00 nominal per share (Adecco shares),
- 50 registered shares of Xxxxxx Venture AG with a nominal
value of CHF 1,000 nominal per share (Venture shares);
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2.4. NiJ:
- 737,500 registered shares of Adecco SA with a nominal
value of CHF 1.00 nominal per share (Adecco shares),
- 61 registered shares of Xxxxxx Venture AG with a nominal
value of CHF 1,000 nominal per share (Venture shares);
2.5. PhJ:
- 737,500 registered shares of Adecco SA with a nominal
value of CHF 1.00 nominal per share (Adecco shares),
- 61 registered shares of Xxxxxx Venture AG with a nominal
value of CHF 1,000 nominal per share (Venture shares);
2.6. NaJ:
- 737,800 registered shares of Adecco SA with a nominal
value of CHF 1.00 nominal per share (Adecco shares),
- 61 registered shares of Xxxxxx Venture AG with a nominal
value of CHF 1,000 nominal per share (Venture shares);
2.7. JAG:
- 15,187,399 registered shares of Adecco SA with a nominal
value of CHF 1.00 nominal per share,
- 1,313 registered shares of Xxxxxx Venture AG with a
nominal value of CHF 1,000 nominal per share (Venture
shares).
3. RESERVATION AND DUTY TO OBSERVE FURTHER PROVISIONS
3.1. This Shareholders' Commitment Agreement and any of its provisions are
subject to the reservation of any further contractual arrangements that
may exist in connection with shares of Adecco SA, which the Parties have
to observe in whole or in part (i.e. the existing permission for use
contracts, pledge agreements, asset management agreements).
3.2. In all other respects, the Adecco shares shall be subject to the
respective stock exchange rules and regulations.
The Parties shall be obliged to make every effort to observe any
applicable stock exchange rules and regulations and to fulfil their
obligations arising therefrom. JAG shall fulfil on behalf of the Family
Members any obligations that are incumbent upon the Parties such as
notification and disclosure requirements, the purchase obligation or
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the obligation to make an offer. Each Family Member shall make every
effort to ensure that JAG fulfils the corresponding duties and
incidental obligations properly within the specified time.
3.3. The Parties are aware that the provisions concerning xxxxxxx xxxxxxx of
several jurisdictions are, or may be, subject to UK or Swiss law. The
Parties undertake to observe the aforesaid provisions.
3.4. The Parties are prepared to pledge the respective unpledged Adecco
shares owned by them in favour of Venture or any other company to be
determined by JAG with a view to the acquisition of further Adecco
shares, or to grant options and/or rights of usufruct.
4. PROHIBITION OF DISPOSAL PRIOR TO THE TERMINATION OF THE CUMULUS PROJECT
4.1. Each Party shall be prohibited from selling its Venture shares to third
parties, giving the same away or otherwise transferring the same prior
to the termination of the Cumulus Project. Sales, gifts or other
transfers among the Parties to this Shareholders' Commitment Agreement
prior to the termination of the Cumulus Project shall require the
approval of all Parties. This does not apply to JAG's possibility to
sell Venture as a whole following the exercise of the call option
according to Section 11 hereof.
4.2. The termination of the Cumulus Project means the date when the financing
arrangements with Deutsche Bank expire (at the end of 2010, unless the
financing arrangements are extended).
5. REPRESENTATION IN THE BOARD OF DIRECTORS
5.1. Each Party shall be entitled to nominate itself, or a representative of
an affiliate (organschaftlicher Vertreter), for election to Venture's
Board of Directors. A claim to election by the general meeting of
shareholders does not exist.
5.2. The Parties may also nominate their respective employees or one or
several third parties, who do not have to be employees of a Party, for
election to Venture's Board of Directors.
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6. DETERMINATION OF BUSINESS AND DIVIDEND POLICY
6.1. The Parties agree to make every effort to ensure that Adecco SA and
Venture are able to develop successful business activities within the
framework of the statutory purposes and dispose of sufficient capital
reserves.
7. RIGHT OF FIRST OPTION WITH REGARD TO VENTURE SHARES AFTER THE
TERMINATION OF THE CUMULUS PROJECT
7.1. Each Family Member shall grant JAG a right of first option with regard
to its interest in Venture according to the following conditions:
7.2. If a Family Member intends to sell the Venture shares for valuable
consideration after the termination of the Cumulus Project it shall be
obliged to notify JAG thereof in writing by registered letter and to
offer JAG the shares for purchase at their intrinsic value. JAG shall be
entitled to accept the offer of the Party willing to sell shares within
45 calendar days from the receipt of the offer and to take over the
shares to be sold.
7.3. The acceptance of the offer by JAG must be made in writing vis-a-vis the
Family Member offering the shares. Silence with regard to the offer
shall mean that the assertion of the right of first option as
contemplated in Section 7 hereof is waived.
7.4. The Parties shall determine the intrinsic value of the Venture shares by
mutual consent; the intrinsic value shall correspond to the equity
capital value.
If an agreement cannot be reached the intrinsic value/equity capital
value of the Venture shares shall be determined with binding effect by a
trust company being a member of the Swiss Institute of Certified
Accountants and Tax Consultants (Schweizer Treuhand-Xxxxxx), which is to
be appointed by the Family Member(s) willing to sell shares and JAG by
mutual consent, in accordance with the generally accepted accounting
principles on the basis of the company's last audited annual accounts.
If the Family Member(s) willing to sell shares and JAG are not able to
agree upon a trust company for the determination of the intrinsic value
the President of the Swiss Institute of Certified Accountants and Tax
Consultants shall appoint a trust company.
The Family Member(s) willing to sell shares and JAG shall each bear 50%
of the costs of the determination of the intrinsic value.
7.5. As soon as the competent trust company has determined the purchase
price, the purchase price shall be payable by JAG within 30 calendar
days concurrently against delivery of the Venture shares. The Family
Member willing to sell shares may revoke
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its intention to sell, respectively purchase, shares vis-a-vis JAG by
registered letter within 10 calendar days following the receipt of the
notice of the purchase price determined by the competent trust company.
7.6. In the event that JAG refrains from exercising its right of first option
according to Sections 7.1. to 7.5. hereof, the remaining Family Members
shall have a right of first option in the following order: KJJ, RJ, NiJ,
PhJ, NaJ, LJ or in the order of their respective amount of interest at
the time when the rights of first option are exercised (in case of an
equal amount of interest the order will depend on age). Therefore, the
amount of interest and, consequently, the order may change during the
term of this Shareholders' Commitment Agreement.
7.7. To this end, the Family Member willing to sell shares shall call a
meeting (or telephone conference) within 10 calendar days after it has
become certain that the sales transaction cannot be concluded with JAG,
observing a five-day period for calling a meeting, in order to offer the
other Family Members the shares according to the above order (see
Section 7.7 hereof) at their intrinsic value in accordance with Section
7.5. hereof. If none of the authorized Family Members declares that it
intends to purchase the Venture shares from the Family Member willing to
sell shares at their intrinsic value concurrently against payment within
30 calendar days then the Family Member willing to sell shares may sell
the Venture shares to a third party.
8. PREEMPTIVE RIGHT WITH REGARD TO VENTURE SHARES AFTER THE TERMINATION OF
THE CUMULUS PROJECT
8.1. In the event that a Family Member sells Venture shares to third parties
following the termination of the Cumulus Project, JAG shall have a
preemptive right to the Venture shares sold with regard to all Venture
shares being the subject matter of this Shareholders' Commitment
Agreement, i.e. under the same terms under which the Family Member
willing to sell shares intends to sell the Venture shares to third
parties. The Family Member shall only be entitled to conclude a purchase
contract with the third party on condition that the preemptive right of
JAG and of the remaining Parties to this Shareholders' Commitment
Agreement is observed.
8.2. If the purchase price agreed upon with third parties exceeds the
intrinsic value to be determined according to Section 7.4 hereof, JAG
shall be entitled to purchase the Venture shares at their intrinsic
value. In the event that the Family Member willing to sell shares and
JAG are not able to agree as to whether this is the case, the intrinsic
value shall be determined according to Section 7.4 hereof.
8.3. The Family Member willing to sell shares shall notify JAG of the sale of
Venture shares, specifying the essential elements of the contract by
registered letter. JAG shall
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inform the Family Member willing to sell shares within 45 calendar days
following receipt of the notice whether it will exercise its preemptive
right.
8.4. JAG shall be obliged to pay the purchase price according to Section 8.1
or Section 8.2 hereof within 30 business days concurrently against
delivery of the Venture shares. The Family Member willing to sell shares
may revoke its intention to sell or purchase shares vis-a-vis JAG by
registered letter within 5 business days following the receipt of the
notice of the purchase price determined by the competent trust company.
8.5. Preemption means any legal transaction aiming at a transfer of the
Venture shares against payment of remuneration by third parties. This
shall particularly include sale, surrender in lieu of payment as well as
voluntary auction.
8.6. In the event that JAG refrains from exercising its preemptive right
according to Sections 8.1. to 8.5. hereof, the remaining Family Members
shall have a preemptive right in the following order: KJJ, RJ, NiJ, PhJ,
NaJ, LJ or in the order of their respective amount of interest at the
time when the preemptive right is exercised (in case of an equal amount
of interest the order will depend on age). Therefore, the amount of
interest and, consequently, the order may change during the term of this
Shareholders' Commitment Agreement.
8.7. To this end, the Family Member willing to sell shares shall call a
meeting (or telephone conference) within 10 calendar days after it has
become certain that the sales transaction cannot be concluded with JAG,
observing a five-day period for calling a meeting, in order to offer the
other Family Members the shares according to the above order (see
Section 7.7 hereof) at their intrinsic value in accordance with Section
6.5. hereof. If none of the authorized Family Members declares that it
intends to purchase the Venture shares from the Family Member willing to
sell shares at their intrinsic value concurrently against payment within
30 calendar days, the Family Member willing to sell shares may sell the
Venture shares to the third party at the purchase price agreed upon.
9. GRATUITOUS TRANSFER
Sections 6 and 7 hereof shall also apply in case that any of the Parties
transfers, or intends to transfer, its Venture shares free of charge in
whole or in part.
10. CONDITIONAL RIGHT TO PURCHASE VENTURE SHARES
10.1. In any of the following events:
- death of a Family Member,
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- breach of contract by a Family Member,
- transfer of the Venture shares as a consequence of a
matrimonial regime; or
- termination of this Shareholders' Commitment Agreement
JAG shall be authorized to acquire the Venture shares concerned at their
intrinsic value according to Section 6.5 hereof.
10.2. JAG shall declare by registered letter within 45 calendar days after
having obtained knowledge that the event of the right to purchase has
occurred whether it will exercise its right to purchase.
10.3. If JAG does not exercise its right to purchase, or exercises such right
in part only, then the right to purchase will expire. However, the
existence of the preemptive right and the right of first option
according to Sections 6 and 7 hereof shall not thereby be affected.
10.4. JAG shall be obliged to pay the purchase price determined according to
Section 7.4 hereof within 45 calendar days concurrently against delivery
of the Venture shares. However, JAG may revoke its intention to purchase
shares vis-a-vis the Family Member concerned by registered letter within
10 calendar days following the receipt of the notice by the competent
trust company of the purchase price determined by it.
11. CALL OPTION WITH REGARD TO THE VENTURE SHARES
11.1. In the event that JAG intends to sell the entire shares held by it in
Venture to a third party it shall be entitled to exercise a call option
with regard to the entire shares which the Family Members hold in
Venture.
11.2. JAG shall notify the Family Members of the exercise of its call option
with regard to the Venture shares in writing; such exercise shall be
effected under the same terms as have been agreed upon between JAG and
the third party, however at least at the intrinsic value of the Venture
shares.
11.3. If JAG does not exercise its call option with regard to the entire
shares held by the Family Members in the company involved then the call
option will expire and JAG will not be able to sell its Venture shares,
as well as the Venture shares that may have already been acquired by
individual Family Members, to the third party. The existence of the
right of first option, the preemptive right and the right to purchase
according to Sections 6 to 9 hereof shall not thereby be affected.
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11.4. JAG shall be obliged to pay the purchase price within 45 calendar days
concurrently against delivery of the shares. JAG may revoke its
intention to purchase shares vis-a-vis the Family Members by registered
letter.
12. PUT OPTION WITH REGARD TO THE VENTURE SHARES
12.1. In the event that JAG sells to a third party its entire shares in
Venture, each Family Member shall be entitled to exercise a put option
(co-sale right) vis-a-vis JAG with regard to all shares held by it in
Venture. JAG shall be obliged to inform each Family Member about the
sale of the Venture shares held by it in writing.
12.2. Each Family Members shall notify JAG of the exercise of its put option
with regard to the Venture shares in writing; such exercise shall be
effected under the same terms as have been agreed upon between JAG and
the third party, however at least at the actual value of the Venture
shares.
12.3. If a Family Member does not exercise its put option with regard to the
entire shares held by it in Venture then the put option will expire. The
existence of the right of first option, the preemptive right and the
right to purchase according to Sections 6 to 10 hereof shall not thereby
be affected.
12.4. JAG shall be obliged to pay the purchase price within 30 calendar days
concurrently against delivery of the Venture shares. Each Family Member
may revoke its intention to purchase shares vis-a-vis JAG by registered
letter.
13. VOTING RIGHTS/INTERNAL ORGANISATION
13.1. The Parties to this Shareholders' Commitment Agreement shall freely
exercise their rights in Venture's general meeting of shareholders.
13.2. Venture's Board of Directors shall determine with regard to the Adecco
shares held by Venture how the rights to the general meeting of
shareholders of Adecco SA shall be exercised.
13.3. As regards the exercise of the pledged or unpledged Adecco shares held
by them, the Parties shall be obliged to observe Venture's resolutions
concerning the exercise of voting rights to the general meeting of
shareholders of Adecco SA.
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14. NON-TRADING CLAUSE
Each Party undertakes to refrain from dealing in Adecco shares, or
options with regard to Adecco shares or other financial instruments
backed by Adecco shares, during the existence of the group and/or the
term of the Cumulus Project.
15. AMENDMENTS OF THE AGREEMENT
This Shareholders' Commitment Agreement may only be amended with the
approval of all Parties and by observing the written form requirement.
16. NOTICES
16.1. Any notice or other communication shall be deemed given, or any other
service deemed effected, if prepared in writing and delivered personally
or by courier, or sent by fax or mail (date of the postmark is
sufficient for compliance with the agreed time limit) and addressed as
follows:
To Xxxxxx Xxxxxxx XX, Xxxxxxxxxxx 00, 0000 Xxxxxx
To Xxxxx X. Xxxxxx, Newsells Park Stud, Xxx Xxxxx Xxxxx, Xxxxxxx
Xxxxxxx, Xxxxxxxxxxxxx, XX0 0XX, XX
To Xxxxxx Xxxxxx, Newsells Park Stud, Xxx Xxxxx Xxxxx, Xxxxxxx Xxxxxxx,
Xxxxxxxxxxxxx, XX0 0XX, XX
To Xxxxxxx Xxxxxx, Xxxxxxxxxxxxxxxxx 000, 0000 Xxxxxxxx
To Xxxxxxx Xxxxxx, Xxxxxxx 00, 0000 Xxxxxx
To Xxxxxxxx Xxxxxx, St. Xxxxx Xxxxxxx 00, 0000 Xx. Xxxxxx
To Xxxxxxxx Xxxxxx, Xxxxxxxxxxxxxxxx 00, 0000 Xx. Xxxxxx.
16.2. Each Party may change its address for purposes of this Shareholders'
Commitment Agreement at any time. However, the other Parties shall be
notified of any change of address in such a form as provided for
notices.
17. ENTRY INTO FORCE/TERM/TERMINATION
17.1. This Shareholders' Commitment Agreement will enter into force as soon as
the agreements for the Cumulus Project have been signed.
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17.2. This Shareholders' Commitment Agreement is concluded for an unlimited
period of time subject to Section 16 hereof. It may be terminated by
observing a twelve-month's notice period, for the first time with effect
from the date of the termination of the Cumulus Project.
18. SEVERABILITY CLAUSE AND INCOMPLETE PROVISIONS
18.1. Should individual provisions of this Shareholders' Commitment Agreement
be or become invalid or impracticable, the validity of the remaining
provisions shall not thereby be affected. In this case, the Parties will
replace the invalid or impracticable provision by a provision which
comes as close as possible to the original legal and economic purpose of
the invalid or impracticable provision.
18.2. Incomplete provisions, or interpretation issues, which may arise in
connection with this Shareholders' Commitment Agreement shall be
replaced by complete provisions, or solved, by taking into account the
purpose of this Shareholders' Commitment Agreement.
19. APPLICABLE LAW/JURISDICTION
This Shareholders' Commitment Agreement shall be governed by Swiss law.
The Parties are agreed that the place of jurisdiction shall be Zurich.
20. MISCELLANEOUS
20.1. The costs incurred in connection with the drafting of this Shareholders'
Commitment Agreement shall be borne by JAG.
This Shareholders' Commitment Agreement shall be executed in seven original
copies. Each Party shall receive one signed copy of this Shareholders'
Commitment Agreement.
See next page for signatures
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Zurich, 26 November 2005
XXXXXX HOLDING AG
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxx Xxxxx
------------------ ----------------
Xxxxxxx Xxxxxx Xxxxxx Xxxxx
FAMILY
/s/ Xxxxx X. Xxxxxx /s/ Xxxxxx Xxxxxx
------------------- -----------------
Xxxxx X. Xxxxxx Xxxxxx Xxxxxx
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx
------------------ ------------------
Xxxxxxx Xxxxxx Xxxxxxx Xxxxxx
/s/ Xxxxxxxx Xxxxxx /s/ Xxxxxxxx Xxxxxx
------------------- -------------------
Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxxx
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