EXECUTION COPY
DATED 6 DECEMBER 2005
XXXXXX VENTURE AG
AND
DEUTSCHE BANK AG
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BILATERAL EQUITY-LINKED CONTRACT
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THIS AGREEMENT is made on 6 December 2005
BETWEEN
(1) XXXXXX VENTURE AG c/x Xxxxxxx, Xxxxxxx und Partner AG, Xxxxxxxxxxxx 00x,
0000 Xxxx, Xxxxxxxxxxx (the "Company"); and
(2) DEUTSCHE BANK AG, Xxxxxxxxxxxx 00, 00000 Xxxxxxxxx xx Xxxx, Xxxxxxx (the
"Bank").
IT IS AGREED as follows
1. DEFINITIONS
1.1 In this Agreement, the following terms have the following meanings:
"Adecco" means Adecco S.A., Cheserex (CH);
"Adecco Share" means an ordinary registered share, currently of CHF 1.00
par value, in the share capital of Adecco;
"Adecco Shareholder" means the person in whose name a Adecco Share is
for the time being registered in the register of Adecco Share ownership
maintained by or on behalf of Adecco;
"Additional Number of Units" means 21,876,164 Units;
"Adjustment Events" means each of the events described in the Adjustment
Provisions;
"Adjustment Provisions" means the provisions set out in Schedule 2
(Adjustment Provisions);
"Anti-Trust Event" means a notice from the Company to the Bank informing
the Bank that the Company is required partially or fully to unwind the
acquisition of the Number of Purchased Units based on a
non-challengeable order or decision of an anti-trust or competition
authority of any competent jurisdiction;
"Bonus Issue" means, in respect of any Adecco Shares or other Relevant
Securities, any issue of such Adecco Shares or such Relevant Securities
credited as fully paid to the Adecco Shareholders or the holders of such
Relevant Securities (as the case may be) by way of capitalisation of
profits or reserves (including any share premium account or capital
redemption reserve) other than a Dividend in Shares;
"Business Day" means a day which is an Exchange Business Day and a day
on which commercial banks are open for general business (including
dealings in foreign currencies) in Zurich;
"Calculation Period" means each period from (and including) a Period End
Date (or, in the case of the initial Calculation Period, the Closing
Date), to (but excluding) the next succeeding Period End Date;
"Call Option" means the call option contained in Condition 2 (Call
Option);
"Cash Value" means, in respect of any Trading Day, the aggregate of the
following:
(i) the product of (A) the number of Adecco Shares included in the
Exchange Property on that Trading Day and (B) the arithmetic
average of the Officially Published bid and offer prices for one
Adecco Share on that Trading Day;
(ii) in the case of any other Relevant Securities included in the
Exchange Property on that Trading Day, the product of (A) the
number of such Relevant Securities included in the Exchange
Property and (B) the arithmetic average of the Officially
Published bid and offer prices for one such Relevant Security on
that Trading Day; and
(iii) in the case of any other assets included in the Exchange
Property on that Trading Day for which a value cannot be
determined pursuant to paragraph (ii) above, the Fair Market
Value thereof,
in each case converted, if necessary, into Swiss Francs at the Screen
Rate on the relevant Trading Day provided that if any such prices are
not available on the relevant Trading Day, the average relevant prices
shall be Determined by an Expert;
"CHF" and "Swiss Francs" denote the lawful currency for the time being
of Switzerland;
"Closing Date" means 9 December 2005 or such other date as may be agreed
between the Company and the Bank;
"Company Security Documents" means the documents referred to in items 1,
9, 17 and 25 in Schedule 3 (The Security Providers and the Security
Documents);
"Conditions" means the terms and conditions set out in Schedule 1
(Conditions), and any reference to a numbered "Condition" is to the
correspondingly numbered provision thereof;
"Day Count Fraction" means, in respect of any period, the number of days
in the relevant period, from (and including) the first day in such
period to (but excluding) the last day in such period, divided by 365
(or, if any portion of that period falls in a leap year, the sum of (i)
the actual number of days in that portion of the period falling in a
leap year divided by 366 and (ii) the actual number of days in that
portion of the period falling in a non-leap year divided by 365);
"Deliver" means to deliver in accordance with the applicable settlement
procedures relating to a transfer of the property comprising Units and
"Delivery" shall be construed accordingly;
"Determined by an Expert" means determined in good faith and in a
commercially reasonable manner by an Expert acting as an expert;
"Dividend" means, in respect of any Adecco Shares or other Relevant
Securities, any gross dividend (prior to any deduction in respect of
withholding tax) or distribution of any kind on the class of capital
represented by such Adecco Shares or such Relevant Securities which is
received, or which would have been received, by the Company, whether in
cash or otherwise and however described:
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(i) including, without limitation, a Dividend in Shares;
(ii) excluding a Bonus Issue; and
(iii) including, without limitation, any other issue of shares or
other securities credited as fully or partly paid by way of
capitalisation of profits or reserves;
"Dividend in Shares" means, in respect of any Adecco Shares or other
Relevant Securities, any issue of such Adecco Shares or such Relevant
Securities credited as fully paid to the Adecco Shareholders or the
holders of such Relevant Securities (as the case may be) by way of
capitalisation of profits or reserves which is to be, or may at the
election of the Adecco Shareholders or the holders of such Relevant
Securities (as the case may be) be, issued instead of the whole or any
part of a cash Dividend which the Adecco Shareholders concerned or the
holders of such Relevant Securities (as the case may be) would or could
otherwise have received;
"Effective Date":
(i) for the purposes of Item 1 (Offers and Schemes), means the Offer
Closing Date;
(ii) for the purposes of Item 2 (Dividends), has the meaning given in
Item 2(c) (Dividends - Effective Date);
(iii) for the purposes of Item 3 (Share Purchase or Redemption), has
the meaning given in Item 3(c) (Share Purchase or Redemption -
Effective Date);
(iv) for the purposes of Item 4 (Reorganisation), has the meaning
given in Item 4(b) (Reorganisations - Effective Date);
(v) for the purposes of Item 5 (Bonus Issues), has the meaning given
in Item 5(b) (Bonus Issues - Effective Date);
(vi) for the purposes of Item 6 (Rights Issues), has the meaning
given in Item 6(b) (Rights Issues - Effective Date); and
(vii) for the purposes of Item 7 (Alteration to Nominal Value), has
the meaning given in Item 7(b) (Alteration to Nominal Value -
Effective Date);
"Event of Default" means one of those circumstances described in
Condition 6 (Events of Default);
"Ex Date" means the date on which any Dividend, securities or other
property or rights are received, or would have been received, by the
Company;
"Exchange Business Day" means a day on which virt-x is scheduled to be
open for trading for regular trading sessions and are open,
notwithstanding that any such exchange closes prior to the scheduled
closing time;
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"Exchange Property" shall initially comprise 10,294,665 Adecco Shares
and shall thereafter, on any given date after the date of this Agreement
include all Relevant Securities and other property arising out of or
derived or resulting therefrom and such other property, in each case as
may be deemed or required to comprise all or part of the Exchange
Property pursuant to this Agreement, but excluding any such property as
may or may be deemed to have ceased to form part of the Exchange
Property, including as the result of it being delivered to the Bank
following the exercise of the Call Option. Except in the circumstances
provided in Item 1 (Offers and Schemes) to Item 8 (Other Events;
Contemporaneous Events) inclusive, dividends and other income and other
benefits and rights derived from the Exchange Property shall not
comprise part of the Exchange Property;
"Expert" means, in relation to any matter to be determined by an Expert,
Deutsche Bank AG, London Branch or if such Expert is unable or unwilling
to act, another independent investment bank and/or a firm of accountants
which is, in either case, of international repute, appointed to act as
an expert for the purposes of such matter in accordance with this
Agreement;
"FSMA" means the Financial Services and Markets Xxx 0000;
"Fair Market Value" means:
(i) except for the purpose for the Adjustment Provisions, in respect
of the outstanding obligations of the Company under this
Agreement on any date, the fair market value of such obligations
taking into consideration the Market Factors; and
(ii) for the purpose of the Adjustment Provisions:
(A) with respect to a cash Dividend or other cash amount the
amount of such cash; and
(B) with respect to any other property on any date, the fair
market value of that property as Determined by an
Expert,
provided, however, that in any such case:
(C) where options, warrants or other rights are publicly
traded in a market which is Determined by an Expert to
have adequate liquidity, the fair market value of such
options, warrants or other rights shall equal the
arithmetic mean of the daily closing prices of such
options, warrants or other rights during the period of
five trading days on the relevant market commencing on
such date (or, if later, the first such trading day such
options, warrants or other rights are publicly traded)
or such shorter period as such options, warrants or
other rights are publicly traded;
(D) any cash Dividend declared or paid in a currency other
than Swiss Francs shall be converted into Swiss Francs
at the rate of exchange used to determine the amount
payable to shareholders who were paid or are to be paid
the cash Dividend in Swiss Francs; and
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(E) any other amount or value in a currency other than Swiss
Francs shall be converted into Swiss Francs at the
Screen Rate on that date;
"Final Date for Acceptance" means, in respect of any Offer, the final
date for acceptance of such Offer, which, if such Offer is extended
prior to such final date, shall be the final date for acceptance of such
extended Offer;
"Financial Year" means, in respect of any Person, any accounting period
in respect of which audited financial statements of such Person have
been published or are expected to be published;
"Fixed Amount" means an amount payable under Condition 1 (Fixed
Amounts);
"Fixed Amount Notional Amount" means, in respect of any date, the
Notional Amount multiplied by the Relevant Proportion applicable to the
period from (and including) the Closing Date or (if later) the
immediately preceding Period End Date to (but excluding) such date;
"Independent Appraiser" means an independent investment bank and/or a
firm of accountants that is, in either case, of international repute,
appointed by the Company to assist in the determination of the Fair
Market Value of the outstanding obligations of the Company under this
Agreement;
"Initial Number of Units" means 10,294,665 Units;
"Initial Payment" means CHF 756,000,000.00;
"Items" means the provisions set out in Schedule 2 (Adjustment
Provisions) and any reference to a numbered "Item" is a reference to the
correspondingly numbered provisions thereof;
"Xxxxxx Family Council" means der "Xxxxxx Familienrat", an association
incorporated as per Article 60ss of the Swiss Civil Code;
"Loss" means any liability, damages, cost, loss or expense (including,
without limitation, legal fees, costs and expenses reasonably incurred
and duly documented and any value added tax thereon);
"Market Factors" means, the trading of the shares of Adecco, interest
rates, the expected future dividends payable on and future volatility of
Adecco Shares, any amount due to be paid between the Obligation
Valuation Date and the Regulatory Termination Date and any other factors
considered appropriate for consideration by the Independent Appraiser
for purposes of calculating the Fair Market Value or (if Fair Market
Value is being calculated by the Calculation Agent) which the
Calculation Agent considers any Independent Appraiser would consider
appropriate if appointed, including, without limitation, the trading of
any publicly tradable security linked to the shares of Adecco;
"Market Value" means in respect of the Exchange Property on any day:
(i) with respect to any cash amount the amount of such cash; and
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(ii) with respect to any other property, the amount which the Bank
determines (in good faith and in a commercially reasonable
manner) would be the net proceeds of an immediate sale of such
property,
and if any such amount or value is in a currency other than CHF, it
shall be converted into CHF at the Screen Rate on that date;
"Maturity Date" means 9 December 2010;
"Notional Amount" means CHF 767,300,000.00;
"Number of Called Units" means, as of any date, the aggregate number of
Units in respect of which the Bank has exercised the Call Option and
Delivery of the Units has taken place up to (and including) such date;
"Number of Outstanding Units" means, in respect of any date, the Initial
Number of Units less the Number of Called Units as of such date;
"Number of Purchased Units" means 12,000,000 Units;
"Obligation Valuation Date" means the date which is 15 Business Days
prior to the Regulatory Termination Date;
"Offer" means, in respect of any Relevant Securities, an offer to
acquire such Relevant Securities, whether expressed as a legal offer, an
invitation to treat, a scheme with regard to such acquisition or in any
other way, in circumstances where such offer is available to all holders
of such Relevant Securities or all holders of such Relevant Securities
other than any such holder who is the person making such offer (or any
associate of such person) or who is excluded from the offer by reason of
being connected with one or more specific jurisdictions;
"Offer Closing Date" means, in relation to any Offer, the date of
receipt by the Company of the Offer Consideration;
"Offer Consideration" has the meaning given in Item 1(c) (Offers and
Schemes - Adjustment to the Exchange Property);
"Offered Property Value" means, with respect to the calculation of "CS"
in Item 1(d) (Offers and Schemes - Cash Consideration and Premium
Compensation), the product of (1) the Relevant Price for any Securities
forming part of the Offer Consideration at the close of business on the
Final Date for Acceptance of the Offer (or if that day is not a Business
Day on the next day which is a Business Day) as though such Securities
were part of the Exchange Property on such date and (2) the number of
such Securities in the Offer Consideration received by the Company
provided that:
(i) if no Relevant Price is available or if such Securities whose
Relevant Price falls to be determined are not then admitted to
trading and/or quotation by any stock exchange or securities
market then the Offered Property Value shall be Determined by an
Expert; and
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(ii) if the Offer Consideration consists of more than one class or
series of Securities, the above procedure shall be followed for
each such class or series and the Offered Property Value shall
be the aggregate of the results of each such procedure;
"Officially Published" means, in relation to the Adecco Shares or any
other Relevant Securities, published by or at the direction of the
Relevant Exchange;
"Option Exercise Value" means the product of the Reference Price and
1.25 multiplied by the number of Units the subject of the Exercise
Notice;
"Payment Date" means each day that falls 2 Business Days immediately
preceding a Period End Date;
"Period End Date" means 9 December in each year, commencing 9 December
2006, up to (and including) the Maturity Date;
"Person" means any individual, company, corporation, firm, partnership,
joint venture, association, organisation, state or agency of a state or
other entity, whether or not having separate legal personality;
"Process Agent" means the Person specified in the document(s) delivered
to the Bank pursuant to Clause 3(b)(ii) (Process agent's acceptance) as
the Company's agent for service of process in England;
"Rate of Interest" means 1.50 per cent. per annum;
"Realisation Proceeds" means the proceeds of sale (after the deduction
of costs and expenses of such sale) of the relevant Exchange Property or
the relevant dividends or other income or distributions or rights
carried out by a broker or investment bank selected by the Calculation
Agent, on an arm's length basis (converted if necessary into Swiss
Francs at the Screen Rate on the date of receipt of such proceeds);
"Reference Price" means CHF 59.627;
"Regulatory Call Notice" has the meaning given to it in Condition 3(f)
(Termination at the option of the Company following a Regulatory Event);
"Regulatory Event" means:
(i) an Anti-Trust Event; or
(ii) a Tax Event; or
(iii) any change in law which results or will result in it becoming
unlawful for the Company to perform or comply with any of its
obligations under or in respect of this Agreement;
"Regulatory Termination Amount" means the sum of the Fair Market Value
as at the Regulatory Termination Date and accrued Fixed Amounts in
respect of this Agreement up to (but excluding) the Regulatory
Termination Date;
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"Regulatory Termination Date" means the date specified as such in any
Regulatory Call Notice, which date shall be not less than 20 Business
Days and not more than 45 Business Days from the date on which the
Regulatory Call Notice is delivered to the Bank, or, if Condition 3(f)
(Termination at the option of the Company following a Regulatory Event)
applies, the Regulatory Termination Date determined by the Company;
"Related Party" means, in respect of any Person, any affiliate of that
Person or any officer, director, employee or agent of that Person or any
such affiliate or any Person by whom any of them is controlled (where
the terms "affiliate" and "controlled" have the meanings given to them
by the Securities Act and the regulations thereunder);
"Relevant Assets" has the meaning given in Item 4(a) (Reorganisation -
Adjustment event);
"Relevant Exchange" means:
(i) in respect of the Closing Date, the SWX Swiss Exchange or
virt-x, as determined by the Calculation Agent; and
(ii) in respect of any subsequent date, if the Exchange Property
includes any Relevant Securities which are not then admitted to
trading and/or quotation by the SWX Swiss Exchange, in respect
of each class or series of such Relevant Securities, the stock
exchange and/or quotation system which is Determined by an
Expert to be the principal stock exchange and/or quotation
system by which such Adecco Shares or Relevant Securities are
then admitted to trading and/or quotation;
"Relevant Individual" means:
(i) any Security Provider; and
(ii) any individual who is a shareholder (directly or indirectly),
officer, director or employee of the Company who has knowledge
of this Agreement;
"Relevant Price" means, in respect of any day, the relevant price as
obtained or derived from such stock exchange or other securities market
on which such Relevant Security is principally traded on that Trading
Day or if that day is a Trading Day but no transaction in respect of the
Relevant Security takes place on that Trading Day, the average of the
closing bid and offer prices on that day in respect of the Relevant
Security as derived from such stock exchange or other securities market
or if that day is not a Trading Day, the price determined as provided
above on the immediately preceding Trading Day;
"Relevant Proportion" means:
(i) in relation to any period or date, the proportion determined by
dividing the Number of Outstanding Units at the end of such
period or date by the Initial Number of Units; and
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(ii) in relation to the Maturity Date, the proportion determined by
dividing the Number of Outstanding Units on the Maturity Date by
the Initial Number of Units;
"Relevant Securities" means any securities that are at the relevant time
included in the Exchange Property or, where the context requires, any
securities of the same class or series;
"Reorganisation" means any scheme of arrangement, reorganisation,
amalgamation, reconstruction, merger, demerger or any similar event of
any company or companies (whether or not involving a liquidation or
dissolution);
"Rights Issue" means, in respect of any Relevant Securities, an offering
by way of rights to holders of such Relevant Securities (or any of them)
of further such Relevant Securities or other securities, or options,
warrants or rights to subscribe or purchase further such Relevant
Securities or other securities;
"Screen Rate" means, on any day, and, in respect of the translation of
one currency into another currency, the rate of exchange between such
currencies appearing on Reuters page CHFX= on that day, or, if that page
is not available or that rate of exchange does not appear on that page
on that day, the rate of exchange between such currencies appearing on
such other screen or information service, or determined in such other
manner, as the Calculation Agent shall determine;
"Securities Act" means the United States Securities Act of 1933;
"Security Documents" means the documents listed in Schedule 3 (Security
Documents and Security Providers);
"Security Providers" means each of the persons specified as a Security
Provider in Schedule 3 (Security Documents and Security Providers) and
any reference to a "Security Provider" is to any of them;
"Subsidiary" means, in relation to any Person (the "first Person") at
any particular time, any other Person (the "second Person"):
(i) whose affairs and policies the first Person controls or has the
power to control, whether by ownership of share capital,
contract, the power to appoint or remove members of the
governing body of the second Person or otherwise; or
(ii) whose financial statements are, in accordance with applicable
law and generally accepted accounting principles, consolidated
with those of the first Person;
"Takeover Event" means any Adjustment Event referred to in Item 1 of the
Adjustment Provisions;
a "Tax Event" will occur if:
(i) the Company has or will become obliged to pay additional amounts
as provided or referred to in Condition 1 (Fixed Amounts) as a
result of any change in, or amendment to, the laws or
regulations of Switzerland or any political
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subdivision or any authority thereof or therein having power to
tax, or any change in the application or official interpretation
of such laws or regulations (including a holding by a court of
competent jurisdiction), which change or amendment becomes
effective on or after the date of this Agreement; and
(ii) such obligation cannot be avoided by the Company taking
reasonable measures available to it; and
(iii) the Company will be obliged to commence paying such additional
amounts in relation to an amount payable under this Agreement
within no more than 12 calendar months; and
(iv) the Company has delivered to the Bank an opinion of independent
legal advisers of recognised standing to the effect that the
Company has or will become obliged to pay such additional
amounts as a result of such change or amendment;
"Termination Multiple" means 107.86 per cent.;
"Termination Notional Amount" means the Notional Amount multiplied by
the Termination Multiple multiplied by the Relevant Proportion as at the
Maturity Date (in the case of a termination on the Maturity Date) or as
at the date of earlier termination of the Agreement (in the case of such
an earlier termination);
"Total Number of Units" means the sum of the Number of Outstanding Units
and the Additional Number of Units;
"Trading Day" means any day that is a trading day on each Relevant
Exchange other than a day on which any Relevant Exchange is scheduled to
close prior to its regular weekday closing time;
"Unit" means, initially, one Adecco Share and, thereafter, on any day,
for the purpose of determining the property to be delivered by the
Company in accordance with Condition 2 (Call Option) or Condition 3
(Termination), "Unit" means the property comprising a pro rata share of
the Exchange Property equal to the total amount of Exchange Property as
at the date the property is delivered divided by the Number of
Outstanding Units, save that, in the case of the Additional Number of
Units, "Unit" means, on any day, a pro rata share of the property the
subject of the Security Documents other than the Company Security
Documents as at that date equal to the total amount of property the
subject to the Security Documents other than the Company Security
Documents divided by the Additional Number of Units; and
"Volume Weighted Average Price" means, in respect of an Adecco Share or
any Relevant Security on any day, the order book volume-weighted average
price of an Adecco Share appearing on the Relevant Exchange (or such
other source as shall be Determined by an Expert) on such day; provided
that, if on any such day such price is not available or cannot otherwise
be determined as provided above, the Volume-Weighted Average Price of an
Adecco Share in respect of such day shall be the Volume-Weighted Average
Price, determined as provided above, on the immediately following day on
which the same can be so determined.
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1.2 Terms defined in the Adjustment Provisions and the Conditions have the
same meaning when used in this Agreement.
1.3 Clauses and Schedules
Any reference in this Agreement to a Clause, a sub-clause or a Schedule
is, unless otherwise stated, to a clause or sub-clause hereof or a
schedule hereto.
1.4 Legislation
Any reference in this Agreement to any legislation (whether primary
legislation or regulations or other subsidiary legislation made pursuant
to primary legislation) shall be construed as a reference to such
legislation as the same may have been, or may from time to time be,
amended or re-enacted.
1.5 Headings
Headings and sub-headings are for ease of reference only and shall not
affect the construction of this Agreement.
1.6 Agreed Form
Any reference herein to a document being in "agreed form" means that the
document in question has been agreed between the proposed parties
thereto, subject to any amendments that the parties may agree upon prior
to the Closing Date.
2. INITIAL PAYMENT; FURTHER PAYMENTS AND DELIVERIES
2.1 Initial Payment
Subject to Clause 3 (Conditions Precedent), in consideration of the
Company agreeing to make the payments and deliveries set out in this
Agreement (including in the Conditions), the Bank agrees to pay the
Initial Payment to the Company on the Closing Date.
2.2 Further Payments and Deliveries
Subject to the Bank making the Initial Payment in accordance with Clause
2.1, the Company shall make the payments and deliveries set out in this
Agreement (including the Conditions), all subject to and in accordance
with the provisions of this Agreement.
3. CONDITIONS PRECEDENT
The Bank shall only be under obligation to make the Initial Payment if:
(a) Security Documents: each of the parties thereto enters into the
Security Document(s) to which it is party on or prior to the
Closing Date;
(b) Closing documents: the Bank receives on (or, in the case of the
evidence referred to in sub-paragraph (ii), on or before) the
Closing Date:
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(i) Legal opinions: legal opinions dated the Closing Date
and addressed to the Bank from Xxxx Xxxxxx, Xxxxxxxx
Kraft & Xxxx and Xxxxxxxx Chance, each in the form
attached;
(ii) Process agents' acceptances: evidence that a Person in
England has agreed to receive process on behalf of the
Company in accordance with Clause 12.5 (Process Agent)
in the manner specified therein; and
(iii) Audited Financial Statements: a copy of the Company's
audited financial statements for the year ended 30
September 2004, together with the auditors' report
thereon; and
(iv) Most recent Financial Statements: a copy of the
Company's most recent financial statements, namely for
the year ended 30 September 2005;
(c) No material adverse change: there has, since the date of this
Agreement, been no adverse change, or any development reasonably
likely to involve an adverse change, in the condition (financial
or otherwise) or general affairs of the Company or any of its
Subsidiaries that is material in the context of this Agreement;
and
(d) Accuracy of representations: the representations and warranties
by the Company in this Agreement, including the representations
and warranties made in relation to any Relevant Individual, are
true and correct on the date of this Agreement and on each date
on which they are deemed to be repeated and would be true and
correct if they were repeated on the Closing Date with reference
to the facts and circumstances then subsisting,
provided, however, that the Bank may, at its discretion, waive
satisfaction of any of the conditions specified in this Clause 3.
4. TERMINATION
4.1 Bank's right to terminate
The Bank may give a termination notice to the Company at any time prior
to the payment of the Initial Payment to the Company on the Closing Date
if:
4.1.1 Inaccuracy of representation: any representation and warranty by
the Company in this Agreement, including the representations and
warranties made in relation to any Relevant Individual, is or
proves to be untrue or incorrect in any material respect on the
date of this Agreement or on any date on which it is deemed to
be repeated;
4.1.2 Breach of obligation: the Company fails to perform any of its
obligations under this Agreement; or
4.1.3 Failure of condition precedent: any of the conditions in Clause
3 (Conditions precedent) is not satisfied or waived by the Bank
on the Closing Date.
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4.2 Consequences
Upon the giving of a termination notice under Clause 4.1 (Bank's right
to terminate) and subject to Clause 4.3 (Saving), each of the Bank and
the Company shall be discharged from performance of its obligations
under Clause 2 (Initial Payments; Further Payments and Deliveries).
4.3 Saving
A discharge pursuant to Clause 4.2 (Consequences) shall not affect the
other obligations of the parties to this Agreement in relation to the
period before such discharge is effective (including in relation to any
liabilities arising out of or in connection with any thing, act or
omission during such period) and shall be without prejudice to accrued
liabilities.
5. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS BY THE COMPANY
5.1 Company's representations
The Company represents and warrants to the Bank that:
5.1.1 Incorporation, capacity and authorisation: the Company is duly
incorporated, and validly existing under the laws of Switzerland
with full power and capacity to own or lease its property and
assets and to conduct its business and is lawfully qualified to
do business in those jurisdictions in which business is
conducted by it; the Company has full power and capacity enter
into this Agreement and to undertake and perform the obligations
expressed to be assumed by it herein, and the Company has taken
all necessary action to approve and authorise the same;
5.1.2 No breach: the execution of this Agreement and the undertaking
and performance by the Company of the obligations expressed to
be assumed by it herein will not conflict with, or result in a
breach of or default under, the laws of Switzerland, any
agreement or instrument to which it is a party or by which it is
bound or in respect of indebtedness in relation to which it is a
surety or any provision of the constitutive documents of the
Company;
5.1.3 Legal, valid, binding and enforceable: subject to any
qualifications expressed in any of the legal opinions referred
to in Clause 3(b)(i) (Conditions Precedent - Closing documents -
Legal opinions), this Agreement constitutes legal, valid,
binding and enforceable obligations of the Company;
5.1.4 Validity of Security Documents: each of the Security Documents
will, on the Closing Date, be effective to grant valid security
over the property expressed to be subject to the security
interest it purports to create, subject only to the matters
referred to in the legal opinions of Xxxx Xxxxxx and Xxxxxxxx
Kraft & Xxxx to be delivered to the Bank on the Closing Date;
- 13 -
5.1.5 Status: this Agreement constitutes direct, general and
unconditional obligations of the Company, secured by the
security interests granted in the Security Documents;
5.1.6 Approvals: all authorisations, consents and approvals required
by the Company in connection with the execution of this
Agreement and the performance by the Company of the obligations
expressed to be undertaken by it herein and therein have been
(or will, prior to the Closing Date, be) obtained and are (or
will, on the Closing Date, be) in full force and effect;
5.1.7 Taxation: all payments by the Company under this Agreement, may
be made free and clear of, and without withholding or making any
deduction for or on account of, any taxes, duties, assessments
or governmental charges of whatever nature imposed, levied,
collected, withheld or assessed by or on behalf of Switzerland
or any political subdivision or authority thereof or therein
having power to tax;
5.1.8 No material litigation: save as disclosed to the Bank prior to
the date hereof, there are no litigation or arbitration
proceedings against or affecting the Company, any of its
Subsidiaries or any of their respective assets or revenues, nor
is the Company aware of any pending or threatened proceedings of
such kind, which are or might be material in the context of this
Agreement;
5.1.9 Financial statements: the Company's financial statements for the
years ended 30 September 2004 and 30 September 2005 were
prepared in accordance with accounting principles generally
accepted in Switzerland and consistently applied and give (in
conjunction with the notes thereto) a true and fair view of the
financial condition of the Company as at the date of which they
were prepared and the result of the Company's operations during
the period then ended;
5.1.10 No business conducted: since 30 September 2005, the Company has
not, except as disclosed to the Bank in writing prior to the
date of this Agreement, undertaken any business other than to
enter into this Agreement, the Company Security Documents, the
transactions contemplated hereby and thereby and any act
incidental or necessary in connection with the foregoing or, to
the best of its knowledge, incurred any additional liabilities
exceeding CHF 50,000.00 in total;
5.1.11 No material adverse change: save as disclosed to the Bank prior
to the date hereof, and since 30 September 2005, there has been
no adverse change, or any development reasonably likely to
involve an adverse change, in the condition (financial or
otherwise) or general affairs of the Company or any of its
Subsidiaries that is material in the context of this Agreement;
and
5.1.12 No Event of Default: no event has occurred which is or would
(with the passage of time, the giving of notice or the making of
any determination) become an Event of Default.
- 14 -
5.2 Further representations
The Company, in relation to itself and each Relevant Individual, and
having made due enquiry as to the situation in respect of each Relevant
Individual, represents and warrants to the Bank that:
5.2.1 save as disclosed to the Bank in writing on or prior to the date
of this Agreement, neither the Company nor any Relevant
Individual is, or could reasonably be expected to be, in
possession of information relating, directly or indirectly, to
Adecco or to the Adecco Shares which has not been made public
and which if it were made public would (a) be information that
would affect a reasonable Person's decision to buy, sell or hold
the Adecco Shares; or (b) be likely to have a significant effect
on the price (including the value) of the Adecco Shares ("inside
information");
5.2.2 neither the Company nor any Relevant Individual is, or at any
time up until immediately after the termination of this
Agreement will be, engaged in insider dealing in relation,
directly or indirectly, to Adecco or to the Adecco Shares which
is an offence under, prohibited by, conduct in respect of which
a sanction may be imposed under or in breach of the requirements
of any applicable legislation from time to time in force;
5.2.3 neither the Company nor any Relevant Individual knows of any
plans (which are not in the public domain) for any transaction
or matter (including, without limitation, a takeover offer for
Adecco) the announcement of which might (a) affect a reasonable
Person's decision to buy, sell or hold the Adecco Shares; or (b)
have a significant effect on, or be likely materially to affect,
the price of the Adecco Shares;
5.2.4 the Company and each Relevant Individual has complied, and will
at all times fully comply, with all applicable laws, regulations
and rules from time to time in force in each relevant
jurisdiction with regard to this Agreement and has provided, and
will, so far as they are able, at all times provide, all
necessary information and has taken, and will at all times take,
so far as they are able, all necessary steps to enable Adecco to
comply with all applicable laws, regulations and rules from time
to time in force in each relevant jurisdiction with regard to
this Agreement;
5.2.5 without prejudice to Clause 5.2.4, in relation to this
Agreement, neither the Company nor any Relevant Individual is
engaged in market abuse in relation, directly or indirectly, to
Adecco or to the Adecco Shares which is an offence under,
prohibited by, conduct in respect of which a sanction may be
imposed or in breach of the requirements of any applicable
legislation from time to time in force;
5.2.6 the Company has taken independent legal advice with regard to
this Agreement and to the warranties, representations and
undertakings made herein and its obligations under all
applicable laws and regulations and agreements entered into by
the Company; and
- 15 -
5.2.7 the Company has fully disclosed to the Bank its reasons and
objectives in entering into this Agreement, namely to provide
the financing to increase its holding in Adecco, which it hereby
confirms are within its corporate powers and constitute a
genuine and legitimate business and commercial purpose.
5.3 Change in matters represented
The Company shall forthwith notify the Bank of anything which at any
time prior to payment of the Initial Payment to the Company on the
Closing Date has or may have rendered, or will or may render, untrue or
incorrect in any material respect any representation and warranty by the
Company in this Agreement as if it had been made or given at such time
with reference to the facts and circumstances then subsisting.
5.4 Representations repeated
The representations and warranties in Clause 5.1 (Company's
representations) and Clause 5.2 (Further representations) shall be
deemed to be repeated (with reference to the facts and circumstances
then subsisting) on the Closing Date.
5.5 Restriction on Company's Activities
The Company shall not, at any time prior to the Maturity Date or earlier
termination of this Agreement, without the prior written consent of the
Bank engage in any business or activity or do anything whatsoever except
to:
(a) create the security expressed to be created by the Company
Security Documents, enter into this Agreement and the Company
Security Documents and perform its obligations hereunder and
thereunder;
(b) enforce any of its rights, whether under any of the documents
referred to in (a) above or otherwise;
(c) pay any taxes levied against the Company by any competent taxing
authority, defend any litigation initiated against it by another
Person and take any other reasonable actions in relation to
liabilities from time to time imposed on it or otherwise arising
without its agreement; or
(d) perform any act incidental to or necessary in connection with
the activities described in paragraphs (a) to (c) above,
including any acts necessary for maintaining its corporate
existence.
If the Company wishes to engage in any activity other than that
expressly permitted by this Clause 5.5, it shall give notice to the Bank
of the nature of the proposed activity in writing (an "Activity
Notice"). Unless the Bank responds to an Activity Notice within 5
Business Days, it will be deemed to have consented to the Company
engaging in the activity set out in the Activity Notice.
Notwithstanding the above, the Company shall remain fully entitled to
declare and make payments of dividends to its shareholders provided
that:
- 16 -
(1) the aggregate amount paid by the Company in respect of such
dividends since the date of this Agreement does not at any
time exceed the aggregate amount of Dividends relating to the
Additional Number of Units actually received by the Company
since the date of this Agreement; and
(2) after the payment of such dividends, the Company retains a
minimum balance of available cash of at least CHF 10,000,000.
5.6 Notification
The Company undertakes to provide written notice to the Bank as soon as
reasonably practicable of it becoming aware of:
(a) any event that results in the Company incurring, on an actual or
contingent basis, any liability in excess of CHF 500,000 (other
than any liability contemplated by this Agreement and the
Security Documents and any temporary liability arising as a
direct result of its declaring and paying a dividend to its
shareholders in accordance with Clause 5.5 (Restriction on
Company's Activities));
(b) any material pending or threatened litigation against it;
(c) any material issues raised by the Company's auditors which
would, unless rectified, cause the auditors to qualify their
report; or
(d) any other circumstances which the Company reasonably considers
will have a material adverse impact on the Company's ability to
satisfy its obligations under this Agreement.
5.7 Provision of Financial Statements
The Company undertakes to provide to the Bank a copy of its annual
audited financial statements as soon as practicable following its
preparation of the same and in any case within 90 days of the end of
each financial year of the Company.
5.8 Amendment of Xxxxxx Holding AG's Articles of Incorporation
The Company undertakes to the Bank that it will, within 30 days of the
Closing Date, send to the Bank the amended Articles of Incorporation of
Xxxxxx Holding AG and an extract of the Commercial Register of the
Canton of Zurich confirming the entry into the register of such
amendment. The Company hereby confirms that Xxxxxx Holding AG delivered
all documents necessary to enable such registration to take place to the
Commercial Register of the Canton of Zurich on 28 November 2005.
5.9 Provision of Auditors' Comfort Letter
The Company shall deliver to the Bank, not later than 30 days after the
Closing Date (or such longer period as may be agreed between the
parties), a comfort letter from its auditors addressed to the Bank
confirming that, except as otherwise disclosed to the Bank in writing,
in the period between 30 September 2005 and the date of this Agreement,
the Company has not undertaken any business other than to enter into
this
- 17 -
Agreement, the Company Security Documents and the transactions
contemplated hereby or thereby and has not to the best of its knowledge
incurred any additional liabilities exceeding CHF 50,000.00 in total
other than as disclosed to the Bank in writing on or prior to the date
of this Agreement.
5.10 Dealing letter
The Company shall procure that each Security Provider countersigns and
delivers to the Bank, not later than 30 days after the Closing Date (or
such longer period as may be agreed between the parties), the letter
addressed to it from the Bank relating to the terms on which the Bank
may from time to time deal in any of the Adecco Shares on behalf of such
Security Provider.
5.11 Lock-up
For a period of 90 days after the date of this Agreement the Company
shall not, and the Company shall procure that no Security Provider nor
any of their respective Subsidiaries or affiliates over which either the
Company or any Security Provider exercises management or voting control
(it being agreed that Adecco is not such a Subsidiary or affiliate for
these purposes) will:
5.11.1 Adecco Shares: issue, offer, sell, transfer, pledge or otherwise
dispose of any Adecco Shares, whether directly or indirectly, or
enter into any agreement to do so;
5.11.2 Rights to Adecco Shares: issue or offer any other securities
which confer a right to Adecco Shares (or any interest therein)
or enter into any agreement to do so;
5.11.3 Economic ownership of Adecco Shares: enter into any agreement
that transfers or might transfer any of the economic
consequences of ownership of the Adecco Shares (including, but
not limited to, stock lending, derivative or hedging
transactions) ; or
5.11.4 publicly announce any intention to do any one or more things
described in sub-clauses 5.11.1 to 5.11.3,
other than, in each case, with the prior written consent of the Bank.
6. INDEMNIFICATION
The Company undertakes to the Bank that if the Bank or any of the Bank's
Related Parties incurs any Loss arising out of, in connection with or
based on:
(a) Misrepresentation: any inaccuracy of any representation and
warranty by the Company in this Agreement (on the date of this
Agreement or on any date when it is deemed to be repeated); or
(b) Breach: any breach by the Company of any of its undertakings in
this Agreement,
- 18 -
the Company shall pay to the Bank on demand an amount equal to such Loss
provided that the Company shall have no such obligation to the extent
such Loss is caused by the Bank's negligence, fraud or wilful conduct.
The Bank shall not have any duty or other obligation, whether as
fiduciary or trustee for any of its Related Parties or otherwise, to
recover any such payment or to account to any other Person for any
amounts paid to it under this Clause.
7. PAYMENTS
(a) Payments by credit transfer: Payments in respect of this Agreement shall
be made by transfer to a CHF account maintained by the payee with a bank
in Zurich as from time to time notified to the Bank or the Company in
writing by the Company or the Bank, as applicable (for value the due
date, or, if the due date is not a Business Day, for value the next
succeeding Business Day).
(b) Payments subject to fiscal laws: All payments in respect of this
Agreement are subject in all cases to any applicable fiscal or other
laws and regulations in the place of payment, but without prejudice to
the provisions of Condition 5 (Taxation). No commissions or expenses
shall be charged to the Bank in respect of such payments.
(c) Payments on business days: The Bank shall not be entitled to any
interest or other payment in respect of any delay in payment resulting
from the due date for a payment not being a Business Day.
8. LIMITED RECOURSE
Other than in the case of a breach by the Company of any of the
representations in Clause 5.1 (Company's Representations) and Clause 5.2
(Further Representations) (in respect of which the Bank shall only have
recourse against the Company and its assets), the Bank shall not be
entitled to have recourse, for the payment or recovery of any monies
owing to it, or for the performance of any delivery obligation owing to
it by the Company under this Agreement, or for the performance of any
delivery obligation owing to it by a Relevant Individual under a
Security Document, to any asset of the Company or any Relevant
Individual except to the extent permitted by the Security Documents. Any
obligations of the Company or any Relevant Individual shall be construed
accordingly.
Accordingly the Bank agrees that it shall not, except as set out above:
(i) take any corporate action or other steps or legal proceedings
for the winding-up, bankruptcy, dissolution or re-organisation
or for the appointment of a receiver, administrator,
administrative receiver, trustee, liquidator, sequestrator or
similar officer of the Company or of any or all of the revenues
and assets of the Company or any Relevant Individual or any
analogous action or steps; or
(ii) have any right to take any steps for the purpose of obtaining
payment of any amounts payable to it, or performance of any
delivery obligations owing to it, under this Agreement by the
Company or performance of any delivery obligations owing to it
under a Security Document by any Relevant Individual
- 19 -
and shall not take any steps to recover any debts whatsoever
owing to it by the Company under this Agreement,
except as permitted by the Security Documents.
9. FEES AND EXPENSES
9.1 Costs and expenses
Each party shall be responsible for the costs and expenses incurred by
it in connection with the negotiation, preparation and execution of this
Agreement and the Security Documents to which it is a party.
9.2 Discretionary Fee
The Company shall, at its discretion, pay to the Bank an arrangement fee
of up to 0.50 per cent. of the Initial Payment. Such arrangement fee (if
any) shall be paid no later than 30 days after the Closing Date.
9.3 Stamp duties
The Company shall pay all stamp, registration and other taxes and duties
(including any interest and penalties thereon or in connection
therewith) which may be payable upon or in connection with the execution
of this Agreement, and the Company shall indemnify the Bank against any
claim, demand, action, liability, damages, cost, loss or expense
(including, without limitation, legal fees) which it may incur as a
result or arising out of or in relation to any failure to pay or delay
in paying any of the same.
10. TIME
Any date or period specified herein may be postponed or extended by
mutual agreement among the parties but, as regards any date or period
originally fixed or so postponed or extended, time shall be of the
essence.
11. NOTICES
11.1 Addresses for notices
All notices and other communications hereunder shall be made in writing
and in English (by letter or fax) and shall be sent as follows:
11.1.1 Company: if to the Company, to it at:
Xxxxxx Venture AG
c/x Xxxxxx Holdings AG
Attention: Corporate Xxxxxxxxx
Xxxxxxxxxxx 00, X.X. Xxx
XX-0000 Xxxxxx
Xxxxxxxxxxx
Fax: x00 00 000 0000
Attention: Corporate Secretary
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11.1.2 Bank: if to the Bank, to it at:
x/x Xxxxxxxx Xxxx XX, Xxxxxx Branch
3a London Wall Buildings
London Wall
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Fax: x00 00 0000 0000
Attention: General Counsel, Legal Department
With copy to:
Deutsche Bank AG, London Branch
Winchester House
1 Great Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Fax: x00 00 0000 0000 and x00 00 000 00000
Attention: Strategic Equity Transaction Group
11.2 Effectiveness
Every notice or other communication sent in accordance with Clause 11.1
(Addresses for notices) shall be deemed given:
(a) if delivered personally, when the person delivering the notice
obtains the signature of a person at the address referred to in
Clause 11.1 (Addresses for notices);
(b) if sent by post, two Business Days after posting it; and
(c) if sent by fax, when confirmation of its transmission has been
recorded by the sender's fax machine,
provided, however, that any such notice or other communication which
would otherwise take effect after 4.00 p.m. on any particular day shall
not take effect until 10.00 a.m. on the immediately succeeding Business
Day in the place of the addressee.
11.3 A copy of any Regulatory Call Notice or Exchange Property Settlement
Notice shall be delivered to the Calculation Agent promptly upon it
being sent to the Bank.
12. LAW AND JURISDICTION
12.1 Governing law
This Agreement is governed by, and shall be construed in accordance
with, English law.
12.2 English courts
The courts of England have exclusive jurisdiction to settle any dispute
(a "Dispute"), arising from or connected with this Agreement (including
a dispute regarding the existence, validity or termination of this
Agreement) or the consequences of its nullity.
- 21 -
12.3 Appropriate forum
The parties agree that the courts of England are the most appropriate
and convenient courts to settle any Dispute and, accordingly, that they
will not argue to the contrary.
12.4 Rights of the Bank to take proceedings outside England
Clause 12.2 (English courts) is for the benefit of the Bank only. As a
result, nothing in this Clause 12 (Law and jurisdiction) prevents the
Bank from taking proceedings relating to a Dispute ("Proceedings") in
any other courts with jurisdiction. To the extent allowed by law, the
Bank may take concurrent Proceedings in any number of jurisdictions.
12.5 Process agent
The Company agrees that the documents which start any Proceedings and
any other documents required to be served in relation to those
Proceedings may be served on it by being delivered to the Process Agent
at its registered office for the time being or at any address of the
Company in Great Britain at which process may be served on it in
accordance with Part XXIII of the Companies Xxx 0000. If such Person is
not or ceases to be effectively appointed to accept service of process
on behalf of the Company, the Company shall, on the written demand of
the Bank addressed to the Company and delivered to the Company appoint a
further Person in England to accept service of process on its behalf
and, failing such appointment within 15 days, the Bank shall be entitled
to appoint such a Person by written notice addressed to the Company and
delivered to the Company. Nothing in this paragraph shall affect the
right of the Bank to serve process in any other manner permitted by law.
This Clause applies to Proceedings in England and to Proceedings
elsewhere.
13. RIGHTS OF THIRD PARTIES
A Person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce any term of this
Agreement.
14. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which when so
executed shall constitute one and the same binding agreement between the
parties.
15. DISCLOSURE
Each of the parties acknowledges and agrees that (a) the other shall be
entitled to disclose to all relevant authorities in any relevant
jurisdiction(s) any documents which it is from time to time required to
disclose by law, rule or regulation and (b) such documents may include
this Agreement and the Security Documents.
AS WITNESS the hands of the duly authorised representatives of the parties to
this Agreement the day and year first before written.
- 22 -
SCHEDULE 1
CONDITIONS
1. FIXED AMOUNTS
Fixed Amounts will accrue under this Agreement as provided in this
Condition and will be paid by the Company to the Bank on the dates
specified herein. Fixed Amounts will accrue at the Rate of Interest from
(and including) the Closing Date to (but excluding) the Maturity Date or
date of earlier termination of this Agreement unless, upon the Maturity
Date or such date of termination, the Company does not comply with its
obligations under Condition 3 (Termination), in which case Fixed Amounts
will continue to accrue at the Rate of Interest (both before and after
judgment) until the day on which all sums or Deliveries due in respect
of this Agreement up to that day are received by or on behalf of the
Bank.
Fixed Amounts in respect of each Calculation Period shall be payable in
arrear on the Payment Date immediately preceding the Period End Date on
which such Calculation Period ends (and so that the first payment of
Fixed Amounts shall be made on the Payment Date falling on 7 December
2006 in respect of the Calculation Period from (and including) the
Closing Date to (but excluding) the Period End Date falling on 9
December 2006).
The Fixed Amount payable on each Payment Date and on any other date on
which a Fixed Amount is required to be paid in respect of this Agreement
shall be calculated by applying the Rate of Interest to the Fixed Amount
Notional Amount relating to such date, multiplying the product by the
Day Count Fraction relating to the period to which such payment relates
and rounding the resulting figure to the nearest CHF 0.01 (half a CHF
0.01 being rounded upwards).
For the purposes of this Condition 1 (Fixed Amounts), the Fixed Amount
Notional Amount, the Relevant Proportion and all related definitions
shall be determined as if any payments on full or partial termination of
this Agreement and any Deliveries of Units hereunder were made 2
Business Days after the date of actual payment or Delivery.
By entering into this Agreement, the Company and the Bank have assumed
that the Fixed Amounts payable are not and will not become subject to
Swiss Anticipatory Tax. Accordingly, the Company acknowledges and agrees
that the Fixed Amounts set out in and calculated in accordance with this
Agreement shall constitute minimum interest rates, which if Swiss
Anticipatory Tax should apply, shall be adjusted as follows:
(i) any payment of Fixed Amount shall be increased to an amount
which (after making any deduction of the Non-refundable Portion
(as defined below) of Swiss Anticipatory Tax) results in a
payment to the Bank of an amount equal to the payment which
would have been due had no deduction of Swiss Anticipatory Tax
been required. For this purpose, the Swiss Anticipatory Tax
shall be calculated on the full grossed-up Fixed Amount and
"Non-refundable Portion" shall mean Swiss Anticipatory Tax at
the standard rate from time to time (35 per cent. at the date of
this Agreement) unless a tax ruling by the Swiss Federal Tax
Administration confirms that the Non-refundable Portion is,
pursuant to any applicable double taxation treaties, specified
at a lower rate in relation to the Bank in which case such lower
rates shall apply;
- 23 -
(ii) the Company shall provide the Bank with the documents required
by law and applicable double taxation treaties for the Bank to
prepare claims for the refund of any Swiss Anticipatory Tax so
deducted;
(iii) if any amount has been paid to the Bank in respect of which
Swiss Anticipatory Tax has been paid by the Company and the Bank
determines that such amount has been refunded to it by the Swiss
tax authorities, it shall promptly reimburse the Company such
amount as will leave the Bank in the same position as if there
had been no Swiss Anticipatory Tax;
provided, however, that no such additional amounts shall be payable
under this Condition 1 (Fixed Amounts) where such additional amounts are
required solely as a result of a change of the transaction structure by
the Bank compared with the transaction structure as submitted to the
Swiss Federal Tax Administration in the ruling dated 14 November 2005
and accepted by the Swiss Federal Tax Administration on 21 November
2005.
For the purpose of this Condition 1, "Swiss Anticipatory Tax" means any
withholding tax on the payment of interest and dividends (including
constructive dividends) in accordance with the Swiss Federal Statute on
Anticipatory Tax of 13 October 1965 (as amended from time to time).
2. CALL OPTION
The Bank shall be entitled at any time prior to the Maturity Date (but
shall not be obliged) to call for the Delivery of any number of Units up
to the Number of Outstanding Units, subject to the provisions of this
Condition 2 (Call Option) (the "Call Option"). The Bank may exercise the
Call Option:
(i) prior to the second anniversary of the Closing Date, at any time
during the period from (and including) the Offer Notice Date in
respect of any Takeover Event to (but excluding) the earlier to
occur of (A) the day which is 30 days after the Final Date for
Acceptance of the Offer, (B) the second anniversary of the
Closing Date and (C) the date on which a Regulatory Call Notice
is effective; and
(ii) thereafter, at any time during the period from (and including)
the second anniversary of the Closing Date to (but excluding)
the earlier to occur of (A) the day falling 7 Business Days
prior to the Maturity Date and (B) the date on which a
Regulatory Call Notice is effective
(each, an "Exercise Period").
The Bank may exercise the Call Option on more than one occasion during
an Exercise Period until the Number of Outstanding Units has been
reduced to zero.
- 24 -
In order to exercise the Call Option the Bank must, not later than 5
Business Days prior to the settlement date (which shall be a Business
Day) proposed by it (the "Settlement Date") give written notice (an
"Exercise Notice") to the Company specifying the number of Units in
respect of which the Bank wishes to exercise the Call Option and the
Settlement Date; provided, however, that any purported exercise of the
Call Option shall be ineffective if the Company gives a Regulatory Call
Notice to the Bank under Condition 3(f) (Termination at the Option of
the Company following a Regulatory Event) which is effective on or
before the date that the relevant Exercise Notice is effective. The
number of Units the subject of an Exercise Notice must be a number which
will result in the Option Exercise Value being not less than CHF
100,000.00.
Following the exercise of the Call Option, the Company will Deliver to
the Bank, or as the Bank directs, on the Settlement Date the number of
Units specified in the Exercise Notice.
3. TERMINATION
(a) Termination at Maturity: Unless the Agreement has previously terminated
pursuant to Condition 3(b), 3(c), 3(d), 3(e) or 3(f), on the Maturity
Date, the Company will pay the Termination Notional Amount to the Bank
on the day falling two Business Days prior to the Maturity Date.
(b) Early Termination: If, prior to the Maturity Date, the Number of
Outstanding Units has been reduced to zero (the "Early Termination
Date"), the Company will not be required to make any further payments or
Deliveries under this Agreement.
(c) Termination following an Event of Default: If at any time an Event of
Default occurs, and is continuing, then the Bank may, by written notice
to the Company (a "Termination Notice"), declare that the provisions of
Condition 3(a) (Termination at Maturity) apply to the Agreement as if
references to "Maturity Date" in that Condition were references to the
date of the Termination Notice.
(d) Termination at Maturity following receipt of Maturity Delivery Notice:
Subject to Condition 3(f) (Termination at the option of the Company
following a Regulatory Event), on or before the day falling 11 Business
Days prior to the Maturity Date, the Bank may give to the Company a
notice requiring the Company to Deliver to the Bank the Number of
Outstanding Units on the day falling two Business Days prior to the
Maturity Date (a "Maturity Delivery Notice"). If the Bank has given a
Maturity Delivery Notice on or before the day falling 11 Business Days
prior to the Maturity Date, the Company will, on the day falling two
Business Days prior to the Maturity Date, Deliver to the Bank, or as the
Bank directs, the Number of Outstanding Units. Upon receipt by the Bank
of the Number of Outstanding Units in accordance with this Condition
3(d), no further payments or Deliveries will be required to be made by
the Company in respect of this Agreement.
(e) Termination at Maturity following an Exchange Property Settlement
Notice: Subject to Condition 3(f) (Termination at the option of the
Company following a Regulatory Event), and provided that the Bank has
not delivered a Maturity Delivery Notice, the Company may, no earlier
than the day falling 10 Business Days prior to the Maturity Date and no
- 25 -
later than the day falling 5 Business Days prior to the Maturity Date,
give notice (the "Exchange Property Settlement Notice") to the Bank that
it exercises its option to deliver Units to the Bank in lieu of paying
the Termination Notional Amount. If the Company gives an Exchange
Property Settlement Notice, on the day falling two Business Days prior
to the Maturity Date the Company will Deliver to the Bank (or as the
Bank directs), in the Company's discretion, either:
(i) the lower of:
(F) the Total Number of Units; and
(G) such number of Units as has, on any day falling in the
period from (and including) the day on which the Company
gives the Exchange Property Settlement Notice to (and
including) the Maturity Date, such day to be nominated
by the Bank in its absolute discretion, a Market Value
equal to the Termination Notional Amount; or
(ii) a combination of:
(A) cash; and
(B) such number of Units as has, on any day falling in the
period from (and including) the day on which the Company
gives the Exchange Property Settlement Notice to (and
including) the Maturity Date, such day to be nominated
by the Bank in its absolute discretion, a Market Value
equal to the Termination Notional Amount less the amount
of cash referred to in sub-paragraph (A),
such that the Market Value of sub-paragraphs (A) and (B) is
equal to the Termination Notional Amount.
(f) Termination at the option of the Company following a Regulatory Event:
The Agreement may be terminated at the option of the Company following
the occurrence of a Regulatory Event.
In order to exercise such option, the Company must give a written notice
(a "Regulatory Call Notice") to the Bank (which notice shall be
irrevocable), which notice shall:
(i) declare that this Agreement will terminate on the Regulatory
Termination Date in accordance with this Condition 3(f);
(ii) specify the details of the Regulatory Event;
(iii) specify the Regulatory Termination Date; and
(iv) set out the name and contact details of any Independent
Appraiser appointed by the Company to assist in the
determination of the Fair Market Value of the outstanding
obligations under this Agreement or confirm that the Company
will not appoint an Independent Appraiser.
- 26 -
The Calculation Agent shall determine the Fair Market Value of the
outstanding obligations of the Company under this Agreement on the
Obligation Valuation Date; provided, however, that if the Company
appoints an Independent Appraiser, provided that the Independent
Appraiser notifies the Calculation Agent in writing of its determination
of the Fair Market Value as of the Obligation Valuation Date no later
than the next Business Day following the Obligation Valuation Date, the
Fair Market Value will be the amount determined by the Calculation Agent
to be the average of the Fair Market Value determined by the Calculation
Agent and the Fair Market Value determined by the Independent Appraiser.
The Calculation Agent shall notify the Company and the Bank of the Fair
Market Value no later than the day falling 13 Business Days prior to the
Regulatory Termination Date.
Following delivery of a Regulatory Call Notice, the Company shall, on
the day falling two Business Days prior to the Regulatory Termination
Date, pay to the Bank the Regulatory Termination Amount. Upon receipt by
the Bank of the Regulatory Termination Amount in accordance with this
Condition 3(f), no further payments or Deliveries will be required to be
made by the Company under this Agreement.
4. ADJUSTMENTS
(a) Calculation Agent: Deutsche Bank AG, London Branch shall act as
calculation agent (the "Calculation Agent") under this Agreement,
including with respect to any adjustments to the Exchange Property in
accordance with the Adjustment Provisions. Whenever the Calculation
Agent is required to act or to exercise judgement in any way under this
Agreement, it will do so in good faith and in a commercially reasonable
manner. The Calculation Agent is not acting as a fiduciary for or as an
adviser to the Company, the Bank or any other Person in respect of its
duties as Calculation Agent and does not assume any relationship of
agency or trust in respect with or for the Company, the Bank or other
Person.
(b) Adjustment Provisions: The provisions set out in Schedule 2 (Adjustment
Provisions) to this Agreement shall apply to this Agreement as if the
same were set out in full in this Agreement.
5. TAXATION
All payments under this Agreement by or on behalf of the Company shall
be made free and clear of, and without withholding or deduction for or
on account of, any present or future taxes, duties, assessments or
governmental charges of whatever nature imposed, levied, collected,
withheld or assessed by or on behalf of Switzerland or any political
subdivision thereof or any authority therein or thereof having power to
tax, unless the withholding or deduction of such taxes, duties,
assessments or governmental charges is required by law.
If the Company is required to make any such withholding or deduction by
law, it shall not be required to pay any additional amounts to the Bank
in respect of such withholding or deduction, except as provided in
Condition 1 (Fixed Amounts).
- 27 -
If the Company becomes subject at any time to any taxing jurisdiction
other than Switzerland, references in these Conditions to Switzerland
shall be construed as references to Switzerland and/or such other
jurisdiction.
The Company represents and undertakes that it does not have, and for so
long as this Agreement remains in force it shall at no time have,
interest-bearing indebtedness payable to more than 20 (twenty)
non-Qualifying Banks. For these purposes, "Qualifying Bank" means a
financial institution which: (a) qualifies as a bank pursuant to the
banking laws in force in its country of incorporation; (b) carries on a
true banking activity in such jurisdiction as its main purpose; and (c)
has personnel, premises, communication devices and decision-making
authority of its own, all as per explanatory note of the Swiss Federal
Tax Administration No. S-02-123(9.86) as amended from time to time.
Any stamp duty or transfer charges, including Swiss Federal Stamp Duty
("Emissions- und Umsatzabgabe"), if due, as well as the fee of the
Relevant Exchange, if any, payable upon or in connection with the
delivery of the Exchange Property hereunder will be paid or reimbursed
by the Company.
6. EVENTS OF DEFAULT
Each of the following with respect to a party (the "Defaulting Party")
constitutes an "Event of Default":
(a) Non-payment/delivery: the Company fails to pay any amount or make any
delivery in respect of this Agreement on the due date for such payment
or delivery and such default continues for a period of 5 days; or
(b) Breach of other obligations: the Company defaults in the performance or
observance of any of its other obligations under or in respect of this
Agreement or any Security Provider defaults in the performance or
observance of any of its other obligations under or in respect of the
Security Documents(s) to which it is party, and in either case such
default remains unremedied for 30 days after written notice thereof,
addressed to the Company or (as the case may be) such Security Provider,
has been delivered to the Company or (as the case may be) such Security
Provider; or
(c) Misrepresentation: any representation made or deemed to be repeated by
the Company under this Agreement proves to have been incorrect or
misleading in any material respect when made or deemed to have been
repeated; or
(d) Security enforced: an encumbrancer or a Person with similar functions
appointed for execution (in Switzerland, a Sachwalter or
Konkursverwalter) takes possession or a receiver is appointed of the
whole or substantially the whole of the assets or undertaking of the
Company or any Security Provider or a distress, execution or seizure
before judgment is levied or enforced upon or sued out against any
substantial part of the property, assets or revenues of the Company or
any Security Provider unless discharged, stayed or removed within 30
days thereof; or
- 28 -
(e) Insolvency, etc.: (i) the Company or any Security Provider becomes
insolvent or bankrupt or is unable to pay its debts as they fall due or
becomes subject to bankruptcy or composition proceedings
(Nachlassverfahren), (ii) an administrator or liquidator of the Company
or any Security Provider or the whole or any part of the undertaking,
assets and revenues of the Company or any Security Provider is appointed
(or application for any such appointment is made, and, except where such
application is made by or on behalf of the Company, is not stayed or
removed within 30 days), (iii) the Company or any Security Provider
takes any action for a readjustment or deferment of any of its
obligations or makes a general assignment or an arrangement or
composition with or for the benefit of its creditors or declares or
enters into a moratorium (Stundung) in respect of any of its
indebtedness or guarantee of any indebtedness given by it, (iv) the
Company or any Security Provider initiates or consents to proceedings
relating to itself under any applicable bankruptcy, composition,
Nachlassvertag, faillite, administration or insolvency law, (v) the
Company or any Security Provider ceases or threatens to cease to carry
on all or any substantial part of its business or (vi) the Company or
any Security Provider notifies the court of its financial situation in
accordance with Article 725(2) of the Swiss Code of Obligations; or
(f) Winding up, etc.: an order is made or an effective resolution is passed
for the winding up, liquidation or dissolution of the Company or any
Security Provider; or
(g) Analogous event: any event occurs which under the laws of any applicable
jurisdiction has an analogous effect to any of the events referred to in
paragraphs (d) (Security enforced) to (f) (Winding up, etc.) above; or
(h) Failure to take action, etc.: any action, condition or thing at any time
required to be taken, fulfilled or done in order (i) to enable the
Company lawfully to enter into, exercise its rights and perform and
comply with its obligations under this Agreement, (ii) to ensure that
those obligations are legal, valid, binding and enforceable and (iii) to
make this Agreement admissible in evidence in the courts of Switzerland
or England is not taken, fulfilled or done; or
(i) Change of control: Company ceases to be a Subsidiary of Xxxxxx Holding
AG or the majority of the voting rights relating to the share capital of
Xxxxxx Holding AG cease to be held by the Xxxxxx Family Council; or
(j) Security Documents: any of the Security Documents is not or ceases to be
in full force and effect except as a result of any action or inaction by
the Bank in relation to any of the Security Documents; or
(k) Unauthorised Modification of Usufruct: any Usufruct (as defined in the
Security Documents) or term or condition thereof granted in the Security
Documents is altered, modified, added, removed, disapplied or otherwise
amended without the prior written approval of the Bank, except for any
such alteration, modification, addition, removal, disapplication or
amendment that results in the immediate, permanent, irrevocable and
unconditional (i) termination, early expiration and/or waiver of the
Usufruct by the Beneficiary (as defined in the relevant Security
Document) and (ii) reassignment by the Beneficiary to the Company of
such Usufruct; or
- 29 -
(l) Failure to assign Usufruct: the Beneficiary (as defined in the Security
Documents) of any Usufruct granted in the Security Documents fails to
assign such Usufruct back to the Company in accordance with the
provisions of the relevant Security Document; or
(m) Attachment or seizure of assets subject to Security Documents: the
assets pledged under a Security Document become subject to an attachment
(Arrest), seizure (Pfandung) or an analogous event occurs under the laws
of any applicable jurisdiction, and, in the case of an attachment
(Arrest), such attachment (Arrest) is not removed within 90 days.
- 30 -
SCHEDULE 2
ADJUSTMENT PROVISIONS
1. OFFERS AND SCHEMES
(a) Company's discretion
In the event of an Offer for Relevant Securities, the Company shall have
absolute discretion to accept such Offer (and in the event of such Offer
consisting of alternative choices, as to which of such alternatives to
accept) or reject such Offer provided that the Company may not accept
any such Offer prior to the Final Date for Acceptance of the Offer.
In relation to any scheme of arrangement, compromise, reorganisation,
amalgamation, merger, demerger or reconstruction of any company or
companies (whether or not involving liquidator or dissolution) (a
"Scheme"), the Company shall at all times be entitled, in relation to
any Relevant Securities, to exercise any rights to vote or other rights
in respect of, or otherwise participate in, any such scheme of
arrangement, reorganisation, amalgamation or reconstruction as it thinks
fit.
(b) Notices
The Company shall give notice to the Bank in accordance with Clause 11
(Notices) forthwith on becoming aware of the publication or announcement
of any Offer or the publication or announcement of any Scheme, and the
date of any such notice is herein referred to as the "Offer Notice
Date". In the event that Company elects to accept an Offer, the Company
will give notice to the Bank in accordance with Clause 11 (Notices) as
soon as practicable but in any event not later than five Trading Days
before the Final Date for Acceptance of the Offer.
(c) Adjustment to Exchange Property
If the Company accepts such Offer (or if the Relevant Securities are
subject to compulsory acquisition in consequence of such an Offer) then,
with effect from the Offer Closing Date, the Relevant Securities the
subject of such Offer or compulsory acquisition in consequence of such
an Offer shall be deemed no longer to form part of the Exchange Property
and shall be deemed to be replaced, subject to paragraph (d) below, by
the consideration (the "Offer Consideration") received for the Relevant
Securities acquired under the Offer or pursuant to such compulsory
acquisition. In any other case, and subject to the remaining provisions
of this Item, the Exchange Property shall remain unadjusted.
(d) Cash consideration and Premium Compensation
In the event that the Offer Consideration consists wholly or partly of
cash, such cash shall be added to the Exchange Property together with a
premium cash amount determined in accordance with the following formula:
- 31 -
PC = K2 X (principal - IP) X T X CB
- -
C MP
where:
K = the lesser of IP and MP or, if equal, 1;
-- --
MP IP
PC = the amount of cash to be added to the Exchange Property;
Principal = CHF 767,300,000.00 NOU
X ---;
IN
IP = CHF 613,840,000.00 NOU
X ---;
IN
CB = the cash amount received by the Company in Swiss Francs
as the whole or part of the consideration for the
securities the subject of the Offer (other than cash
paid in respect of fractional entitlements to the
securities in the Offer) converted, if necessary, into
Swiss Francs at the Screen Rate on the Offer Closing
Date;
MP = Cash Value of the Exchange Property on the Final Date
for Acceptance of the Offer;
C = 1,826 days (duration in days from but excluding the
Closing Date to, and including, the Maturity Date);
T = duration in days from but excluding the Final Date for
Acceptance of the Offer to, and including the Maturity
Date (which shall be zero if the Final Date for
Acceptance of the Offer occurs after such date);
IN = the Initial Number of Units; and
NOU = the Number of Outstanding Units.
The provisions of this Item 1(d) shall apply mutatis mutandis to any
subsequent Offer. For the avoidance of doubt, Item 10 (Repurchase of
Relevant Securities etc.) does not apply to any cash included in the
Offer Consideration.
2. DIVIDENDS
(a) Adjustment Event: If and whenever a Dividend is declared in respect of
the Adecco Shares or any Relevant Securities, the Exchange Property
shall be subject to adjustment in accordance with this Item 2.
(b) Company's discretion: In the case of any Dividend consisting of
alternative choices, the Company shall have absolute discretion as to
which of such alternatives to accept.
- 32 -
(c) Effective Date: For the purposes of this Item 2, the "Effective Date"
means the Ex Date in respect of the relevant Dividend.
(d) Adjustment to the Exchange Property: In the case of the first Dividend
declared in each Financial Year in respect of the Exchange Property,
with effect from the Effective Date, the Exchange Property shall be
adjusted by adding to (or deducting from) the Exchange Property such
number of Relevant Securities as are determined in accordance with the
following formula:
(i) if the Dividend in respect of the Exchange Property is greater
than the Expected Dividend Amount, the Exchange Property shall
be increased by the addition of such number of Relevant
Securities of the same class as the securities in respect of
which the Dividend was paid as results from dividing the amount
by which the Dividend exceeds the Expected Dividend Amount by
the Volume Weighted Average Price of the Relevant Securities of
the same class as the securities in respect of which the
Dividend was paid on the Ex Date; or
(ii) if the Dividend in respect of the Exchange Property is less than
the Expected Dividend Amount, the Exchange Property shall be
decreased by the subtraction of such number of Relevant
Securities of the same class as the securities in respect of
which the Dividend was paid as results from dividing the amount
by which the Dividend is less than the Expected Dividend Amount
by the Volume Weighted Average Price of the Relevant Securities
of the same class as the securities in respect of which the
Dividend was paid on the Ex Date; or
(iii) if the Dividend is equal to the Expected Dividend Amount, the
Exchange Property shall not be adjusted.
For these purposes "Expected Dividend Amount" means CHF 10,294,665
multiplied by the product of the Number of Outstanding Units divided by
the Initial Number of Units.
(e) Adjustment of subsequent Dividends
In the case of any subsequent Dividend declared in respect of the
Exchange Property in each Financial Year, with effect from the Effective
Date the Exchange Property shall be increased by the addition of such
number of Relevant Securities of the same class as the securities in
respect of which the Dividend was paid as results from dividing the
amount of the Dividend by the Volume Weighted Average Price of the
Relevant Securities of the same class as the securities in respect of
which the Dividend was paid on the Ex Date.
(f) Effect of adjustment: With effect from and including the Effective Date
the expression "Exchange Property" shall mean the Exchange Property as
adjusted pursuant to Item 2(d) (Dividends - Adjustment to the Exchange
Property) or Item 2(e) (Adjustment of subsequent Dividends). Any such
adjustment shall be subject to any subsequent adjustment pursuant to
these Items.
3. SHARE PURCHASE OR REDEMPTION
(a) Adjustment Event: If and whenever there is any purchase or redemption of
Adecco Shares by Adecco, the Exchange Property shall be subject to
adjustment in accordance with this Item 3 (Share Purchase or
Redemption).
(b) Other Relevant Securities: In determining whether or not a purchase or
redemption of Relevant Securities should require an adjustment under
this Item 3 (Share Purchase or Redemption), references in this Item 3
(Share Purchase or Redemption) to Adecco Shares and Adecco shall be
construed as references to such Relevant Securities and the issuer of
such Relevant Securities.
- 33 -
(c) Effective Date: For the purposes of this Item 3, the "Effective Date"
means the date on which the Adecco Shares are purchased or redeemed.
(d) Adjustment to the Exchange Property: On the Effective Date, the Exchange
Property shall be adjusted by adding such further Relevant Securities,
other securities or other property or assets (including cash) received
by the Company in relation to the purchase or redemption and
attributable to the Relevant Securities included in the Exchange
Property on the Effective Date. Where the property received comprises
cash, that cash is to be applied by the Company, as soon as reasonably
practicable and to the extent possible to purchase additional securities
in accordance with Item 10 (Purchase of Relevant Securities etc.).
(e) Effect of adjustment: With effect from and including the Effective Date
the expression "Exchange Property" shall mean the Exchange Property as
adjusted pursuant to Item 3(d) (Share Purchase or Redemption -
Adjustment to the Exchange Property). Any such adjustment shall be
subject to any subsequent adjustment pursuant to these Items.
4. REORGANISATIONS
(a) Adjustment event: If and whenever any further Relevant Securities or
other securities, property or assets (including cash) ("Relevant
Assets") are issued, distributed or otherwise made available to holders
of Relevant Securities pursuant to any Reorganisation, the Exchange
Property shall be subject to adjustment in accordance with this Item 4.
(b) Effective Date: For the purposes of this Item 4, the "Effective Date"
means the Ex Date in respect of the Relevant Assets to be issued,
distributed or otherwise made available to holders of Relevant
Securities pursuant to the relevant Reorganisation.
(c) Adjustment to the Exchange Property: With effect from the Effective
Date, the Exchange Property shall be adjusted by adding such Relevant
Assets as are attributable by virtue of the relevant Reorganisation to
the Relevant Securities included in the Exchange Property on the
Effective Date. To the extent that the Relevant Assets comprise cash,
that cash is to be applied by the Company, as soon as reasonably
practicable and to the extent possible to purchase additional securities
in accordance with Item 10 (Purchase of Relevant Securities etc.).
(d) Effect of adjustment: With effect from and including the Effective Date
the expression "Exchange Property" shall mean the Exchange Property as
adjusted pursuant to Item 4(c) (Reorganisation - Adjustment to the
Exchange Property). Any such adjustment shall be subject to any
subsequent adjustment pursuant to these Items.
5. BONUS ISSUES
(a) Adjustment event: If and whenever the issuer of any Relevant Securities
shall make any Bonus Issue in respect of such Relevant Securities, the
Exchange Property shall be subject to adjustment in accordance with this
Item 5.
- 34 -
(b) Effective Date: For the purposes of this Item 5, the "Effective Date"
means the Ex Date in respect of the Relevant Securities to be issued
pursuant to the Bonus Issue.
(c) Adjustment to the Exchange Property: With effect from the Effective
Date, the Exchange Property shall be adjusted by adding such further
Relevant Securities as are attributable by virtue of the Bonus Issue to
the Relevant Securities included in the Exchange Property on the
Effective Date.
(d) Effect of adjustment: With effect from and including the Effective Date
the expression "Exchange Property" shall mean the Exchange Property as
adjusted pursuant to Item 5(c) (Bonus Issues - Adjustment to the
Exchange Property). Any such adjustment shall be subject to any
subsequent adjustment pursuant to these Items.
6. RIGHTS ISSUES
(a) Adjustment event: If and whenever the issuer of any Relevant Securities
shall make any Rights Issue in respect of such Relevant Securities, the
Exchange Property shall be subject to adjustment in accordance with this
Item 6.
(b) Effective Date: For the purposes of this Item 6, the "Effective Date"
means the Ex Date in respect of the Relevant Securities or other
securities, or options, warrants or rights to subscribe or purchase
further Relevant Securities or other securities to be issued pursuant to
the Rights Issue.
(c) Adjustment to the Exchange Property: With effect from the Effective
Date, the Exchange Property shall be adjusted by the Calculation Agent,
by not later than the latest day for accepting or taking up any such
rights, either:
(i) on an arm's length basis in good faith, procuring the sale by a
broker or investment bank selected by the Calculation Agent of
sufficient of the relevant rights to enable the whole of the
balance of such rights to be taken up, procuring the application
of the proceeds of sale, after the deduction of the costs and
expenses of such sale, in the taking up of such rights and
adding to the Exchange Property such number of Adecco Shares or
other securities or options, warrants or rights as result from
such taking up of rights (with, any excess proceeds of sale
being added to and forming part of the Exchange Property); or
(ii) adding to the Exchange Property such number of Adecco Shares or
other securities or options, warrants or rights as would have
been subscribed or purchased if sufficient rights had been sold
on an arm's length basis in good faith to enable (after the
deduction of the costs and expenses of such sale) the whole of
the balance of such rights to be taken up together with an
amount equal to what would have been any such excess proceeds of
sale as aforesaid,
provided that, if such rights may not be sold and the Company so elects
and notifies the Bank, the Company shall use any part of the Exchange
Property comprising cash to take up such rights and/or on an arm's
length basis, sell sufficient Relevant Securities to enable (after the
deduction of the costs and expenses of such sale) the whole of the
balance of such rights to be taken up, with, in any such case, any
excess proceeds of sale being added to and forming part of the Exchange
Property to be applied by the Company in accordance with Item 10
(Purchase of Relevant Securities etc.).
- 35 -
(d) Effect of adjustment: With effect from and including the Effective Date
the expression "Exchange Property" shall mean the Exchange Property as
adjusted pursuant to Item 6(c) (Rights Issues - Adjustment to the
Exchange Property). Any such adjustment shall be subject to any
subsequent adjustment pursuant to these Items.
7. ALTERATION TO NOMINAL VALUE
(a) Adjustment event: If and whenever there shall be an alteration to the
nominal value of any Relevant Securities as a result of consolidation or
subdivision, the Exchange Property shall be subject to adjustment in
accordance with this Item 7.
(b) Effective Date: For the purposes of this Item, the "Effective Date"
means the date on which such subdivision or consolidation becomes
effective.
(c) Adjustment to the Exchange Property: With effect from the Effective
Date, the securities resulting from such consolidation or subdivision,
so far as attributable to the Exchange Property, shall be included in
the Exchange Property.
(d) Effect of adjustment: With effect from and including the Effective Date
the expression "Exchange Property" shall mean the Exchange Property as
adjusted pursuant to Item 7(c) (Alteration to Nominal Value - Adjustment
to the Exchange Property). Any such adjustment shall be subject to any
subsequent adjustment pursuant to these Items.
8. OTHER EVENTS; CONTEMPORANEOUS EVENTS
(a) Adjustment event: If the Calculation Agent determines that:
(i) an adjustment should be made to the Exchange Property as a
result of one or more events or circumstances not referred to in
Item 1 (Offers and Schemes) to Item 7 (Alteration to Nominal
Value) (even if the relevant event or circumstance is
specifically excluded from the operation of Item 1 (Offers and
Schemes) to Item 7 (Alteration to Nominal Value));
(ii) more than one event which gives rise or may give rise to an
adjustment to the Exchange Property has occurred or will occur
within such a short period of time that a modification to the
operation of the adjustment provisions is required in order to
give the intended result; or
(iii) one event which gives rise or may give rise to more than one
adjustment to the Exchange Property has occurred or will occur
such that a modification to the operation of the adjustment
provisions is required in order to give the intended result,
the Calculation Agent shall, at its own expense, use all reasonable
endeavours to procure that such adjustment (if any) to the Exchange
Property as is fair and reasonable to take account thereof, and the date
on which such adjustment should take effect, shall be Determined by an
Expert.
- 36 -
(b) Effective Date: Upon such determination, the Calculation Agent shall
procure that such adjustment (if any) shall be made and shall take
effect in accordance with such determination, provided, however, that an
adjustment shall only be made pursuant to this Item 8 if the relevant
Expert is requested to make such a determination not more than 14 days
after the date on which the relevant event occurs or circumstances
exist.
(c) Certificate of an Expert: If any doubt shall arise as to any appropriate
adjustment to the Exchange Property, the Calculation Agent shall procure
that the appropriate adjustment shall be Determined by an Expert and a
certificate from the relevant Expert as to the appropriate adjustment to
the Exchange Property shall, in the absence of manifest error, be
conclusive and binding on all concerned.
9. NOTICE OF CHANGE IN EXCHANGE PROPERTY
The Calculation Agent shall give notice to the Company and the Bank in
accordance with Clause 11 (Notices) of any change in composition of the
Exchange Property as soon as reasonably practicable following such
change.
10. PURCHASE OF RELEVANT SECURITIES ETC.
If any cash amount or securities or other property is received under or
pursuant to these Items in respect of Exchange Property which is to be
added to and form part of the Exchange Property (other than (i) any
Adecco Shares or Relevant Securities, or (ii) as included in the Offer
Consideration received under Item 1 (Offers and Schemes)), the Company
is authorised to apply such cash, or the proceeds of the sale of such
securities or other property (net of any costs and expenses incurred in
connection with such sale) to purchase additional Adecco Shares (not
then included in the Exchange Property) or, where the Exchange Property
includes securities other than Adecco Shares, additional units of such
securities. Any such additional Adecco Shares or other securities
purchased shall thereafter form part of the Exchange Property.
11. MAINTENANCE OF EXCHANGE PROPERTY
(a) Ownership of Sufficient Exchange Property: At any particular time, the
Company may or may not be the beneficial owner of sufficient Exchange
Property to satisfy its obligations under this Agreement. However these
Items shall be read and construed as though at all times the Company was
the beneficial owner of sufficient Exchange Property to satisfy its
obligations under this Agreement. Consequently, subject as provided in
Item 11(b) (Maintenance of Exchange Property - Repurchase or Redemption
of Relevant Securities), for the purposes of determining whether and to
what extent any adjustment should be made to the Exchange Property at
any time, for the purposes of these Items the Company shall be deemed to
be entitled to receive such further or other Relevant Securities,
securities, property or assets (including cash) and/or consideration on
the date the Company would have been entitled to receive them/it, and to
make any relevant elections in respect thereof, as it would have been
entitled to receive and/or make had it at all relevant times been the
beneficial owner of sufficient Exchange Property to satisfy its
obligations under this Agreement and references in these Items to the
Exchange Property being adjusted shall be construed accordingly. In
particular (and without limitation):
- 37 -
(i) Offers and Schemes: for the purposes of Item 1 (Offers and
Schemes), the Company shall be entitled by notice to the Bank to
elect to be treated as accepting (or accepting a particular
alternative) or (unless the Relevant Securities are subject to
compulsory acquisition) rejecting the relevant Offer as if it
was the beneficial owner of the Relevant Securities the subject
of such Offer;
(ii) Rights Issues: for the purposes of Item 6 (Rights Issues), the
Exchange Property shall be increased by the Relevant Securities
or other securities or options, warrants or rights and any
excess proceeds of sale which would have been added to the
Exchange Property had the Company been the beneficial owner of
the Relevant Securities included in the Exchange Property at all
relevant times and complied with its obligations under Item 6
(Rights Issues) in relation thereto;
(iii) Purchase of Relevant Securities etc: for the purposes of Item 10
(Purchase of Relevant Securities etc), if at the relevant time
the Company is not the beneficial owner of sufficient Exchange
Property to satisfy its obligations under this Agreement, such
additional Adecco Shares or other securities as could have been
purchased with the relevant amount of cash or, as the case may
be, the net proceeds of sale of the relevant securities or other
property shall be determined by the Calculation Agent;
(iv) Realisation Proceeds: if at any time when the Realisation
Proceeds of any property are to be determined the Company is not
at the relevant time the beneficial owner of sufficient Exchange
Property to satisfy its obligations under this Agreement, then
the Realisation Proceeds in respect thereof shall be determined
by the Calculation Agent as if the Company had at the relevant
time been the beneficial owner of sufficient Exchange Property
and had sold the relevant property as provided in these Items;
(v) Sale of Exchange Property: where any of the provisions of these
Items require the Company to sell any property included in the
Exchange Property or deriving from it or received in respect of
it, then such provisions shall operate as if the Company had
sold the same as provided in these Items, and an amount equal to
that which would have been the net proceeds of such sale and
required to be applied as provided in these Items shall be or,
as the case may be, be treated as being so applied by the
Company, with any amount representing what would have been the
balance of proceeds of any such sale being treated as being
applied as so provided in these Items;
(vi) Time or date of receipt: any reference in these Items to the
time or date of receipt by the Company of any property or assets
shall be construed as a reference to the time at, or date on,
which the Company would otherwise have received or would have
first been entitled to receive the same had it been the
beneficial owner of sufficient Exchange Property to satisfy its
obligations under this Agreement at all relevant times; and
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(vii) Delivery of Exchange Property: any provisions of these Items in
respect of the obligation of the Company to deliver or
distribute all or any part of the Exchange Property or other
property or assets (including cash) shall operate as if the
Company was the beneficial owner of sufficient Exchange Property
to satisfy its obligations under this Agreement at all relevant
times, and the Company shall be required to deliver or
distribute the same accordingly.
(b) Repurchase or Redemption of Relevant Securities: In the event of a
purchase or redemption of Relevant Securities by the issuer thereof, if
at the relevant time the Company is not the beneficial owner of
sufficient Exchange Property to satisfy its obligations under this
Agreement, Item 3 (Share Purchase or Redemption) shall be disregarded
unless and to the extent the issuer of any Relevant Securities purchases
or redeems sufficient Relevant Securities such that thereafter the total
outstanding Relevant Securities are less than the number required to be
included in the Exchange Property, in which case to the extent of such
shortfall, the Company shall be treated as if it was the beneficial
owner of the number of Relevant Securities required to be included in
the Exchange Property and the provisions of Item 3 (Share Purchase or
Redemption) shall be deemed to apply accordingly in respect of the
number of Relevant Securities representing such shortfall.
12. REDEMPTION OR REPURCHASE OF RELEVANT SECURITIES
(a) Tender offers: If a tender or other offer is made by or on behalf of an
issuer of any Relevant Securities (or any person associated with such
issuer) to purchase or otherwise acquire, redeem or exchange such
Relevant Securities, other than an offer to which Item 1(a) (Offers and
Schemes - Company's discretion) applies, the Company shall not tender or
be entitled to be treated as having tendered any such Relevant
Securities which are included in the Exchange Property or be treated as
having accepted any such offer in respect thereof or vote in respect of
any such Relevant Securities in relation to any such tender or other
offer without the Bank's approval.
(b) Optional redemption: The Company shall not exercise or be treated as
having exercised any option to require the redemption or repayment of
any Relevant Securities which are included in the Exchange Property
prior to the final due date for redemption or repayment thereof without
the Bank's approval.
13. DETERMINED BY AN EXPERT
In relation to any matter required by these Items to be Determined by an
Expert, the Calculation Agent shall promptly appoint an Expert. If when
any matter is required by these Items to be Determined by an Expert, the
Calculation Agent shall within a reasonable time fail to appoint an
Expert the Company shall be entitled (but not obliged) to make such
appointment. In either case, any such appointment shall be for the
account of the Bank.
14. INTERPRETATION
In this Agreement, unless otherwise specified or unless the context
requires otherwise:
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(a) references to any issue or offer or grant to Adecco Shareholders
"as a class" or "by way of rights" shall be construed so as to
include an issue or offer or grant to all or substantially all
Adecco Shareholders other than Adecco Shareholders to whom, by
reason of the laws of any jurisdiction or requirements of any
recognised regulatory body or any stock exchange in any
jurisdiction or in connection with fractional entitlements, it
is determined not to make such issue or offer or grant (and
references to any issue or offer or grant to holders of any
other Relevant Securities shall be similarly construed); and
(b) headings and sub-headings are for ease of reference only and
shall not affect the construction of these Items.
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SCHEDULE 3
THE SECURITY PROVIDERS AND THE SECURITY DOCUMENTS
TITLE OF DOCUMENTS SECURITY PROVIDER OTHER PARTIES
------------------------------------ ----------------- -------------
1. Share Pledge Agreement Xxxxxx Venture AG Deutsche Bank
2. Share Pledge Agreement Xxxxxx Holding AG Deutsche Bank
3. Share Pledge Agreement Xxxxx X. Xxxxxx Deutsche Bank
4. Share Pledge Agreement Xxxxxx Xxxxxx Deutsche Bank
5. Share Pledge Agreement Xxxxxxx Xxxxxx Deutsche Bank
6. Share Pledge Agreement Xxxxxxx Xxxxxx Deutsche Bank
7. Share Pledge Agreement Xxxxxxxx Xxxxxx Deutsche Bank
8. Share Pledge Agreement Xxxxxxxx Xxxxxx Deutsche Bank
9. Account Pledge Agreement Xxxxxx Venture AG Deutsche Bank
10. Account Pledge Agreement Xxxxxx Holding AG Deutsche Bank
11. Account Pledge Agreement Xxxxx X. Xxxxxx Deutsche Bank
12. Account Pledge Agreement Xxxxxx Xxxxxx Deutsche Bank
13. Account Pledge Agreement Xxxxxxx Xxxxxx Deutsche Bank
14. Account Pledge Agreement Xxxxxxx Xxxxxx Deutsche Bank
15. Account Pledge Agreement Xxxxxxxx Xxxxxx Deutsche Bank
16. Account Pledge Agreement Xxxxxxxx Xxxxxx Deutsche Bank
17. Custody Agreement Xxxxxx Venture AG Deutsche Bank
18. Custody Agreement Xxxxxx Holding AG Deutsche Bank
19. Custody Agreement Xxxxx X. Xxxxxx Deutsche Bank
20. Custody Agreement Xxxxxx Xxxxxx Deutsche Bank
21. Custody Agreement Xxxxxxx Xxxxxx Deutsche Bank
22. Custody Agreement Xxxxxxx Xxxxxx Deutsche Bank
23. Custody Agreement Xxxxxxxx Xxxxxx Deutsche Bank
24. Custody Agreement Xxxxxxxx Xxxxxx Deutsche Bank
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25. Side Letter to the Custody Agreement Xxxxxx Venture AG Deutsche Bank
26. Side Letter to the Custody Agreement Xxxxxx Holding AG Deutsche Bank
27. Side Letter to the Custody Agreement Xxxxx X. Xxxxxx Deutsche Bank
28. Side Letter to the Custody Agreement Xxxxxx Xxxxxx Deutsche Bank
29. Side Letter to the Custody Agreement Xxxxxxx Xxxxxx Deutsche Bank
30. Side Letter to the Custody Agreement Xxxxxxx Xxxxxx Deutsche Bank
31. Side Letter to the Custody Agreement Xxxxxxxx Xxxxxx Deutsche Bank
32. Side Letter to the Custody Agreement Xxxxxxxx Xxxxxx Deutsche Bank
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SIGNATURES
XXXXXX VENTURE AG
By:
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxx Xxxxx
------------------ ----------------
XX XXXXXXX XXXXXX XXXXXX XXXXX
Chairman Director
DEUTSCHE BANK AG
By: /s/ Pierre-Xxxxxx Xxxxxxxx /s/ Xxxxx Xxxxxxxx
-------------------------- ------------------
Pierre-Xxxxxx Xxxxxxxx Xxxxx Xxxxxxxx
Authorized Signatory Authorized Signatory
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