Translation from the German Language
SHAREHOLDERS' COMMITMENT AGREEMENT
between
1. Xxxxxx Xxxxxxx XX, Xxxxxxxxxxx 00, 0000 Xxxxxx
(hereinafter referred to as "JAG")
2. Xxxxx X. Xxxxxx
Newsells Park Stud, The Xxxxx Xxxxx, Xxxxxxx Xxxxxxx, Xxxxxxxxxxxxx, XX0 0XX, XX
(hereinafter referred to as "KJJ")
3. Xxxxxx Xxxxxx
Newsells Park Stud, The Xxxxx Xxxxx, Xxxxxxx Xxxxxxx, Xxxxxxxxxxxxx, XX0 0XX, XX
(hereinafter referred to as "RJ")
4. Xxxxxxx Xxxxxx
Xxxxxxxxxxxxxxxxx 000, 0000 Xxxxxxxx
(hereinafter referred to as "LJ")
5. Xxxxxxx Xxxxxx
Xxxxxxx 00, 0000 Xxxxxx
(hereinafter referred to as "NiJ")
6. Xxxxxxxx Xxxxxx
St. Xxxxx Xxxxxxx 00, 0000 Xx. Xxxxxx
(hereinafter referred to as "PhJ")
7. Xxxxxxxx Xxxxxx
Xxxxxxxxxxxxxxxx 00, 0000 Xx. Xxxxxx
(hereinafter referred to as "NaJ")
(the Parties 2, 3, 4, 5, 6 and 7 are hereinafter also collectively referred to
as "Family", or, individually, as "Family Member").
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PREAMBLE
JAG and the Family each hold shares in Triventura AG (hereinafter referred to as
"Triventura"), which has entered into a Share Purchase Agreement with Xxxxx
Finance SA (SPA II), subject to conditions precedent, regarding the purchase of
12 m registered shares of Adecco SA with a nominal value of CHF 1.00 nominal per
share (Adecco shares).
JAG and the Family enter into this Shareholders' Commitment Agreement intending
to
(i) maintain and control the composition of the circle of
shareholders of Triventura through rights of first option,
pre-emptive rights and rights to purchase;
(ii) provide a set of rules for the Parties' mutual rights and
obligations;
Now, therefore, the Parties hereby agree as follows:
1. SUBJECT MATTER OF THE SHAREHOLDERS' COMMITMENT AGREEMENT
1.1. Upon entering into this Shareholders' Commitment Agreement, the Family and
JAG participate in the share capital Triventura as follows:
1.2. KJJ:
- 223 registered shares of Triventura AG with a nominal value of
CHF 100.-- nominal per share (Triventura shares);
1.3. RJ:
- 184 registered shares of Triventura AG with a nominal value of
CHF 100.-- nominal per share (Triventura shares);
1.4. LJ:
- 19 registered shares of Triventura AG with a nominal value of CHF
100.-- nominal per share (Triventura shares);
1.5. NiJ:
- 23 registered shares of Triventura AG with a nominal value of CHF
100.-- nominal per share (Triventura shares);
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1.6. PhJ:
- 23 registered shares of Triventura AG with a nominal value of CHF
100.-- nominal per share (Triventura shares);
1.7. NaJ:
- 23 registered shares of Triventura AG with a nominal value of CHF
100.-- nominal per share (Triventura shares);
1.8. JAG:
- 505 registered shares of Triventura AG with a nominal value of
CHF 100.-- nominal per share (Triventura shares).
2. PROHIBITION OF DISPOSAL PRIOR TO AVAILABLE FINANCING FOR THE OBLIGATIONS
UNDER SPA II
2.1. Each Party shall be prohibited from selling its Triventura shares to third
parties, giving the same away or transferring the same otherwise prior to
an Available Financing concerning the obligations under SPA II. Sales,
gifts or other transfers among the Parties of this Shareholders' Commitment
Agreement prior to an Available Financing shall require the approval of all
Parties. This does not apply to JAG's possibility to sell Triventura as a
whole following the exercise of the call option.
2.2. The financing is available on the date when the financing for the
obligations under SPA II is definitively available and was implemented
("Available Financing").
2.3. The Parties agree to extend the Prohibition of Disposal if it will be
required in terms of financing. The Parties agree to alter this Agreement
and in particular also the right of first option / pre-emptive rights
accordingly. The Parties also agree to pledge their unpledged Adecco shares
owned by them and / or to grant options and / or rights of usufruct /and /
or to offer the Adecco-Shares as a security if this should be required in
terms of Financing.
3. REPRESENTATION IN THE BOARD OF DIRECTORS
3.1. Each Party shall be entitled to nominate itself, or a representative of an
affiliate (organschaftlicher Vertreter), for election to Triventura's Board
of Directors. A claim to election by the general meeting of shareholders
does not exist.
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3.2. The Parties may also nominate their respective employees or one or several
third parties, who do not have to be employees of a Party, for election to
Triventura's Board of Directors.
4. RIGHT OF FIRST OPTION WITH REGARD TO TRIVENTURA SHARES AFTER AVAILABLE
FINANCING
4.1. Each Family Member shall grant JAG a right of first option with regard to
its interest in Triventura according to the following conditions:
4.2. If a Family Member intends to sell the Triventura shares after Available
Financing, it shall be obliged to notify JAG thereof in writing by
registered letter and to offer JAG the shares for purchase at their
intrinsic value. JAG shall be entitled to accept the offer of the Party
willing to sell shares within 45 calendar days from the receipt of the
offer and to take over the shares to be sold.
4.3. The acceptance of the offer by JAG must be made in writing vis-a-vis the
Family Member offering the shares. Silence with regard to the offer shall
mean that the assertion of the right of first option of is waived.
4.4. The Parties shall determine the intrinsic value of the Triventura shares by
mutual consent; the intrinsic value shall correspond to the equity capital
value.
If an agreement cannot be reached, the intrinsic value/equity capital value
of the Triventura shares shall be determined with binding effect by a trust
company being a member of the Swiss Institute of Certified Accountants and
Tax Consultants (Schweizer Treuhand-Xxxxxx), which is to be appointed by
the Family Member(s) willing to sell shares and JAG by mutual consent, in
accordance with the generally accepted accounting principles on the basis
of the company's last audited annual accounts.
If the Family Member(s) willing to sell shares and JAG are not able to
agree upon a trust company for the determination of the intrinsic value the
President of the Swiss Institute of Certified Accountants and Tax
Consultants shall appoint a trust company.
The Family Member(s) willing to sell shares and JAG shall each bear 50% of
the costs of the determination of the intrinsic value.
4.5. As soon as the competent trust company has determined the purchase price,
the purchase price shall be payable by JAG within 30 calendar days
concurrently against delivery of the Triventura shares. The Family Member
willing to sell shares may revoke its intention to sell, respectively
purchase, shares vis-a-vis JAG by registered letter within 10 calendar days
following the receipt of the notice of the purchase price determined by the
competent trust company.
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4.6. In the event that JAG refrains from exercising its right of first option
according to the above sections, the remaining Family Members shall have a
right of first option in the following order: KJJ, RJ, NiJ, PhJ, NaJ, LJ or
in the order of their respective amount of interest at the time when the
rights of first option are exercised, whereas in case of an equal amount of
interest the order will depend on age. Therefore, the amount of interest
and, consequently, the order may change during the term of this
Shareholders' Commitment Agreement.
4.7. To Family Member willing to sell shares shall call a meeting (or telephone
conference) within 10 calendar days after it has become certain that the
sales transaction cannot be concluded with JAG, observing a five-day period
for calling a meeting, in order to offer the other Family Members the
shares according to the above order (see section 4.6.) at their intrinsic
value. If none of the authorized Family Members declares that it intends to
purchase the Triventura shares from the Family Member willing to sell
shares at their intrinsic value, concurrently against payment within 30
calendar days, then the Family Member willing to sell shares may sell the
Triventura shares to a third party.
5. PRE-EMPTIVE RIGHT WITH REGARD TO TRIVENTURA SHARES AFTER AVAILABLE
FINANCING
5.1. In the event that a Family Member sells Triventura shares to third parties
after Available Financing, JAG shall have a pre-emptive right to the
Triventura shares sold with regard to all Triventura shares being the
subject matter of this Shareholders' Commitment Agreement, i.e. under the
same terms under which the Family Member willing to sell shares intends to
sell the Triventura shares to third parties. The Family Member shall only
be entitled to conclude a purchase contract with the third party on
condition that the pre-emptive right of JAG and of the remaining Parties to
this Shareholders' Commitment Agreement is observed.
5.2. If the purchase price agreed upon with third parties exceeds the intrinsic
value, JAG shall be entitled to purchase the Triventura shares at their
intrinsic value. In the event that the Family Member willing to sell shares
and JAG are not able to agree as to whether this is the case, the intrinsic
value shall be determined according to Section 4.4 hereof.
5.3. The Family Member willing to sell shares shall notify JAG of the sale of
Triventura shares, specifying the essential elements of the contract by
registered letter. JAG shall inform the Family Member willing to sell
shares within 45 calendar days following receipt of the notice whether it
will exercise its pre-emptive right.
5.4. JAG shall be obliged to pay the purchase price within 30 business days
concurrently against delivery of the Triventura shares. The Family Member
willing to sell shares
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may revoke its intention to sell or purchase shares vis-a-vis JAG by
registered letter within 10 business days following the receipt of the
notice of the purchase price determined by the competent trust company.
5.5. Pre-emption means any legal transaction aiming at a transfer of the
Triventura shares against payment of remuneration by third parties. This
shall particularly include sale, surrender in lieu of payment as well as
voluntary auction.
5.6. In the event that JAG refrains from exercising its pre-emptive right
according to preceding sections, the remaining Family Members shall have a
pre-emptive right in the following order: KJJ, RJ, NiJ, PhJ, NaJ, LJ or in
the order of their respective amount of interest at the time when the
pre-emptive right is exercised (in case of an equal amount of interest the
order will depend on age). Therefore, the amount of interest and,
consequently, the order may change during the term of this Shareholders'
Commitment Agreement.
5.7. The Family Member willing to sell shares shall call a meeting (or telephone
conference) within 10 calendar days after it has become certain that the
sales transaction cannot be concluded with JAG, observing a five-day period
for calling a meeting, in order to offer the other Family Members the
shares according to the above order (see Section 5.6 hereof) at their
intrinsic value. If none of the authorized Family Members declares that it
intends to purchase the Triventura shares from the Family Member willing to
sell shares at their intrinsic value concurrently against payment within 30
calendar days, the Family Member willing to sell shares may sell the
Triventura shares to the third party at the purchase price agreed upon.
6. GRATUITOUS TRANSFER
First option and pre-emptive rights shall also apply if one of the Parties
transfers, or intends to transfer, its Triventura shares free of charge in
whole or in part.
7. CONDITIONAL RIGHT TO PURCHASE TRIVENTURA SHARES
7.1. In any of the following events:
- death of a Family Member,
- breach of contract by a Family Member,
- transfer of the Triventura shares as a consequence of a
matrimonial regime; or
- termination of this Shareholders' Commitment Agreement
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JAG shall be authorized to purchase the Triventura shares concerned, at
their intrinsic value.
7.2. JAG shall declare by registered letter within 45 calendar days after having
obtained knowledge that the event of the right to purchase has occurred
whether it will exercise its right to purchase.
7.3. If JAG does not exercise its right to purchase, or exercises such right
only in part, then the right to purchase will expire. However, the
existence of the pre-emptive right and the right of first option shall not
thereby be affected.
7.4. JAG shall be obliged to pay the purchase price determined according to
section 4.4 within 45 calendar days concurrently against delivery of the
Triventura shares. However, JAG may revoke its intention to purchase shares
vis-a-vis the Family Member concerned by registered letter within 10
calendar days following the receipt of the notice by the competent trust
company of the purchase price determined by it.
8. CALL OPTION WITH REGARD TO THE TRIVENTURA SHARES
8.1. In the event that JAG intends to sell the entire shares held by it in
Triventura to a third party it shall be entitled to exercise a call option
with regard to the entire shares which the Family Members hold in
Triventura.
8.2. JAG shall notify the Family Members of the exercise of its call option with
regard to the Triventura shares in writing; such exercise shall be effected
under the same terms as have been agreed upon between JAG and the third
party, however at least at the intrinsic value of the Triventura shares.
8.3. If JAG does not exercise its call option with regard to the entire shares
held by the Family Members in the company involved then the call option
will expire and JAG will not be able to sell its Triventura shares, as well
as the Triventura shares that may have already been acquired by individual
Family Members, to the third party. The existence of the right of first
option, the pre-emptive right and the right to purchase according to
sections 4 to 7 hereof shall not thereby be affected.
8.4. JAG shall be obliged to pay the purchase price within 45 calendar days
concurrently against delivery of the shares. JAG may revoke its intention
to purchase shares vis-a-vis the Family Members by registered letter.
9. PUT OPTION WITH REGARD TO THE TRIVENTURA SHARES
9.1. In the event that JAG sells to a third party its entire shares in
Triventura, each Family Member shall be entitled to exercise a put option
(co-sale right) vis-a-vis JAG with
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regard to all shares held by it in Triventura. JAG shall be obliged to
inform each Family Member about the sale of the Triventura shares held by
it in writing.
9.2. Each Family Member shall notify JAG of the exercise of its put option with
regard to the Triventura shares in writing; such exercise shall be effected
under the same terms as have been agreed upon between JAG and the third
party, however at least at the actual value of the Triventura shares.
9.3. If a Family Member does not exercise its put option with regard to the
entire shares held by it in Triventura, then the put option will expire.
The existence of the right of first option, the pre-emptive right and the
right to purchase according to Sections 4 to 7 hereof shall not thereby be
affected.
9.4. JAG shall be obliged to pay the purchase price within 30 calendar days
concurrently against delivery of the Triventura shares. Each Family Member
may revoke its intention to purchase shares vis-a-vis JAG by registered
letter.
10. VOTING RIGHTS/INTERNAL ORGANISATION
10.1.The Parties to this Shareholders' Commitment Agreement shall freely
exercise their rights in Triventura's general meeting of shareholders.
11. AMENDMENTS OF THE AGREEMENT
This Shareholders' Commitment Agreement may only be amended with the
approval of all Parties and by observing the written form requirement.
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12. NOTICES
12.1.Any notices or other communication shall be deemed given, or any other
service deemed effected, if prepared in writing and delivered personally or
by courier, or send by fax or mail (date of the postmark is sufficient for
compliance with the agreed time limit) and addressed as follows:
To Xxxxxx Xxxxxxx XX, Xxxxxxxxxxx 00, 0000 Xxxxxx
To Xxxxx X. Xxxxxx, Newsells Park Stud, Xxx Xxxxx Xxxxx, Xxxxxxx Xxxxxxx,
Xxxxxxxxxxxxx, XX0 0XX, XX
To Xxxxxx Xxxxxx, Newsells Park Stud, Xxx Xxxxx Xxxxx, Xxxxxxx Xxxxxxx,
Xxxxxxxxxxxxx, XX0 0XX, XX
To Xxxxxxx Xxxxxx, Xxxxxxxxxxxxxxxxx 000, 0000 Xxxxxxxx
To Xxxxxxx Xxxxxx, Xxxxxxx 00, 0000 Xxxxxx
To Xxxxxxxx Xxxxxx, St. Xxxxx Xxxxxxx 00, 0000 Xx. Xxxxxx
To Xxxxxxxx Xxxxxx, Xxxxxxxxxxxxxxxx 00, 0000 Xx. Xxxxxx.
12.2.Each Party may change its address for purposes of this Shareholders'
Commitment Agreement at any time. However, the other Parties shall be
notified of any change of address in such a form as provided for notices.
13. ENTRY INTO FORCE/TERM/TERMINATION
13.1.This Shareholders' Commitment Agreement will enter into force retroactively
to 1 January 2006.
13.2.This Shareholders' Commitment Agreement is concluded for an unlimited
period of time. It may be terminated by observing a twelve-month's notice
period, at the earliest at 30 June 2008.
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14. SEVERABILITY CLAUSE AND INCOMPLETE PROVISIONS
14.1.Should individual provisions of this Shareholders' Commitment Agreement be
or become invalid or impracticable, the validity of the remaining
provisions shall not thereby be affected. In this case, the Parties will
replace the invalid or impracticable provision by a provision which comes
as close as possible to the original legal and economic purpose of the
invalid or impracticable provision.
14.2.Incomplete provisions, or interpretation issues, which may arise in
connection with this Shareholders' Commitment Agreement shall be replaced
by complete provisions, or solved, by taking into account the purpose of
this Shareholders' Commitment Agreement.
15. APPLICABLE LAW/JURISDICTION
This Shareholders' Commitment Agreement shall be governed by Swiss law. The
Parties agreed that the place of jurisdiction shall be Zurich.
16. MISCELLANEOUS
16.1.The costs incurred in connection with the drafting of this Shareholders'
Commitment Agreement shall be borne by JAG.
This Shareholders' Commitment Agreement shall be executed in seven original
copies. Each Party shall receive one signed copy of this Shareholders'
Commitment Agreement.
See next page for signatures
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Zurich, 20 March 2006
XXXXXX HOLDING AG
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxx Xxxxx
--------------------- ---------------------
Xxxxxxx Xxxxxx Xxxxxx Xxxxx
FAMILY
/s/ Xxxxx X. Xxxxxx /s/ Xxxxxx Xxxxxx
--------------------- ---------------------
Xxxxx X. Xxxxxx Xxxxxx Xxxxxx
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx
--------------------- ---------------------
Xxxxxxx Xxxxxx Xxxxxxx Xxxxxx
/s/ Xxxxxxxx Xxxxxx /s/ Xxxxxxxx Xxxxxx
--------------------- ---------------------
Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxxx
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