EXHIBIT 3
Agreement
between
InCentive Capital AG
c/o Bar & Xxxxxx
Xxxxxxxxx. 0
0000 Xxx
(hereinafter "ICC")
and
InCentive Asset Management AG
Xxxxxxx. 00
0000 Xxxxxx
(hereinafter "IAM")
PREAMBLE
The extraordinary general meeting of shareholders of India resolved the
absorption merger with Incentive Investment AG, changed the company name to
"InCentive Capital AG" and resolved the following new object clause:
The Company has the object of direct or indirect acquisition,
management and sale of interests of any kind in listed and not listed
domestic and foreign companies without taking account of risk
diversification. The Company may exert active influence on the
management of the companies in which it holds investments. The
Company may conclude any kind of financial transactions, including
with the use of derivative instruments and including borrowing and
the financing of other companies.
At home and abroad, the Company may establish branch offices and
subsidiaries, take over representations and enter into all
transactions and agreements that may be suitable for promoting the
object of the Company or that are directly or indirectly related to
it. The Company may acquire, manage and sale real property.
Moreover, a new Board of Directors was appointed that is composed of Xx.
Xxxx-Xxxx Xxxx (Chairman), Xxxx Xxxxxxxxx (Delegate), Xxxxxx Xxxxxx, Xxxx
Xxxxxxx and Xx. Xxxx Xxxxx.
The previous stock exchange listing of India (new "InCentive Capital AG") is
preserved.
IAM is an independent company established on March 2, 2000, with registered
office in Zurich, whose corporate object is the administration of assets in the
name and for the account of third parties.
ICC is looking for a service provider that on an order basis and according to
the directions of the Board of Directors shall carry out such business
transactions that the Board of Directors may transfer to third parties pursuant
to Art. 716a Swiss Law of Obligations.
ICC is further looking for an asset manager who shall manage its investments on
an order basis and according to the instructions of the Board of Directors.
As an independent asset management company, IAM is able and prepared to provide
the services required by ICC within the scope of its ordinary business
activities on an order basis, commissioning third parties for certain tasks on
its part.
1. DUTIES OF IAM
ICC commissions IAM with the execution of the following tasks:
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1.1. ADMINISTRATION AND INFORMATION
According to the instructions of the Board of Directors of
ICC, IAM shall carry out such business that the Board of
Directors may transfer to third parties pursuant to Art.
716a Swiss Law of Obligations, in particular:
a) Administrative activities for ICC
including secretary and accounting
work as well as the preparation of
general meetings of ICC;
b) Preparation of reporting of ICC to the
shareholders, the stock exchange and
the public including the preparation
of business reports and the periodical
determination of the net inventory
value;
c) Regular and timely information of the
management bodies of ICC on all events
that have to be brought to the
attention of the management bodies of
ICC according to the laws, Articles of
Association and the respective
organization regulations.
The Board of Directors of ICC may limit the scope of the business
management provided by IAM at any time.
1.2. ASSET MANAGEMENT FOR ICC
IAM is commissioned with the management of the assets of
ICC (without majority interests) corresponding to the
business policy and the investment guidelines of the
management bodies of ICC, in particular:
a) Identification and evaluation of
investment possibilities;
b) Execution of investment and
disinvestment decisions and their
supervision;
c) Management of liquid funds of ICC;
d) Periodical reporting to the management
bodies of ICC with respect to the
transactions carried out including a
performance report.
IAM is free to choose the financial institutions with which
it carries out its transactions; however it is obligated to
cooperate only which such contractual partners who have the
required credit standing.
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ICC shall decide upon recommendation of IAM with which
financial institutions and on what basis a cooperation
is to take place.
IAM shall provide its asset management services always
according to instructions and is subject to the general
supervision of the management bodies of ICC.
IAM has the right to commission third parties with partial
asset management.
2. COMPENSATION FOR IAM
IAM shall make her infrastructure such as premises, furniture, IT and
staff available for the duties described in Clause 1 at her own
expense.
ICC shall pay a compensation of 0.3% per calender quarter for this,
calculated with respect to the net inventory value of ICC as of the
end of the respective calender quarter. The payment of ICC to IAM
shall be effected no later than 14 days after the respective
effective date.
IAM is entitled to charge expenses of third parties, such as auditing
and trust companies, attorneys, tax consultants, etc., and costs
directly attributable to ICC, such as all costs for the preparation
of the business report of ICC, to the account of ICC.
IAM is entitled to charge additional fees for services provided to
ICC that are not described in Clause 1 that are to be agreed for each
respective case.
3. LIABILITY
In connection with the management mentioned in Clause 1.1, IAM shall
be liable towards ICC exclusively for loss caused by bodies and/or
employees of IAM by intent or gross negligence.
IAM is commissioned for carrying out investments containing risks as
described in the Offering Circular and Listing Memorandum of November
2, 2000. ICC shall release IAM, its bodies and employees from their
liability to the extent that they act according to the business
policy and investment guidelines laid down by ICC, unless they are
acting by gross negligence or intent. The liability of IAM in
connection with its activity of "administration and information for
ICC" shall be waived unless IAM, its bodies or employees are acting
by gross negligence or intent.
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4. INDEMNITY
ICC shall indemnify the bodies of IAM against all liability claims of
third parties and legal costs arising in connection with the defense
against them. The legal aid thus paid shall be repaid upon first
request, waiving any defense and objections, to the extent that it is
established on the basis of a final court judgement that the damage
was caused by the bodies of IAM by intent or gross negligence.
5. CONFLICTS OF INTEREST
See Offering Circular and Listing Memorandum of November 2, 2000, p.
20.
6. TERM OF AGREEMENT
The term of the Agreement shall be unlimited.
In case of termination of the business relationship by ICC, IAM is
entitled to payment of a flat rate in the amount of the total of the
sums charged to the account of ICC by IAM in the last six months
before the termination.
7. AMENDMENTS TO THE AGREEMENT
Any amendments to the Agreement require the written form in order to
be valid.
8. APPLICABLE LAW AND JURISDICTION
The applicable law shall be the law of Switzerland, and the place of
jurisdiction shall be Zurich.
9. SEVERABILITY
Should any provision of this Agreement prove to the invalid, the
validity of the remaining provisions shall remain unaffected by this.
The invalid provision shall be replaced by the provision that the
parties would probably have chosen if they had been aware of the
invalidity of the invalid provision at the time of conclusion of the
Agreement. This clause shall also apply to material provisions of the
Agreement that have become invalid.
Appendices:
o Business policy of ICC and investment guidelines pursuant
to the resolution of the Board of Directors of 2000
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o Offering Circular and Listing Memorandum of November 2,
2000.
Zurich, October 31, 2000
For InCentive Capital AG
For InCentive Asset Management AG
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