Exhibit 3
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SHARE PURCHASE AGREEMENT II
between
Xxxxx Finance S.A.
and
Triventura AG
a subsidiary of Xxxxxx Holding AG, being incorporated (in Grundung)
for Shares in
Adecco S.A.
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SHARE PURCHASE AGREEMENT II
between
Xxxxx Finance S.A., 00 xxx Xxxx Xxxxxx Xxxxxxxx, X-0000 Xxxxxxxxxx
(hereinafter the "SELLER")
and
Triventura AG, a subsidiary of Xxxxxx Holding AG, being incorporated (in
Grundung befindlich), c/x Xxxxxxx, Xxxxxxx + Partner AG, Xxxxxxxxxxxx 00x,
0000 Xxxx
(hereinafter the "BUYER")
PREAMBLE
1. Philippe Foriel-Destezet and Xxxxx X. Xxxxxx on November 21, 2005
entered into negotiations in respect of the purchase of shares in
Adecco S.A. (ISIN CH0012138605) (the "COMPANY") by the Seller and
Buyer.
2. In reliance thereon and on the fact that the purchase would be
completed, Philippe Foriel-Destezet accepted to resign as Co-Chairman
of the Company and Xxxxx X. Xxxxxx to be appointed Chairman and Chief
Executive Officer (CEO) of the Company on November 21, 2005.
3. The object of this Agreement is for the Seller to sell, and for the
Buyer to purchase, 12 million Shares total in the Company (the
"SHARES" as defined in Schedule A). It is the Parties' intention that
the Shares will be sold and transferred to the Buyer on June 30, 2007
at the latest.
This being said, the Parties now agree as follows:
1. PURCHASE AND SALE
(1) Subject to the realization of the conditions precedent set out in
Section 4 below, the Seller as legal and beneficial owner agrees to
sell the Shares, free of all liens, charges or other encumbrances,
and the Buyer agrees to purchase and pay for the Shares together
with all dividends, distributions and other benefits attached to the
Shares (to be paid to the shareholders after the Closing Date or the
Early Closing Date, as the case may be) at a net purchase price per
Share of CHF 63.- for a total consideration of CHF 756 million plus
a profit share (the "PURCHASE Price"), being the sum of the
constituent items set forth in Schedule B, to be paid cash in
immediately available funds.
(2) Notwithstanding the foregoing, in case of an Early Closing Date, as
defined in Section 5 (1) below, the minimum profit share as set out
in Schedule B shall be of CHF 72 million.
2. ESCROW
(1) Upon Signing of this Agreement, the Parties shall enter into an
escrow agreement in the form as attached hereto as Schedule C
("ESCROW Agreement") pursuant to which the Shares are held by an
Escrow Agent (as defined in the Escrow Agreement) according to the
terms and conditions of the Escrow Agreement.
(2) Ownership of the Shares, while in escrow, including any dividends,
distributions, other benefits and voting rights, shall remain with
the Seller. Any such dividends, distributions and other benefits
shall not be kept in escrow, but credited directly to the Seller's
account up and until the Closing Date or the Early Closing Date.
3. MERGER CONTROL
(1) The Buyer shall as promptly as possible after the Signing of this
Agreement file notifications for approval of the delivery of the
Shares to the Buyer with competition authorities as required by law
the "COMPETITION AUTHORITIES", and any of such Competition
Authorities herein referred to as a "COMPETITION AUTHORITY").
(2) The Seller shall assist the Buyer in preparing such notifications.
(3) If the transactions envisaged in this Agreement are prohibited by a
Competition Authority, the Buyer shall generally do its best to have
this decision reverted. In particular, the Buyer shall appeal, if
necessary and reasonable up to the highest judicial authority,
against such prohibition. In the unlikely situation such a negative
decision would be confirmed by the appeal jurisdictions, all parts
of this Agreement governing the sale and delivery of the Shares and
the payment of the Purchase Price (except in respect of any Sections
in relation to confidentiality, notices, law and jurisdiction) shall
become invalid and unenforceable at the same time when such
prohibition is notified upon the Buyer.
(4) Clearance of the transactions envisaged in this Agreement under the
applicable merger control provisions will for purposes of this
Agreement also be deemed to have been granted if such clearance is
associated with obligations and/or conditions imposed upon the
Buyer.
4. CONDITIONS PRECEDENT
(1) The obligation of the Buyer and the Seller to proceed with the
Closing in order to complete the delivery of the Shares and the
payment of the Purchase Price shall each be subject to the
satisfaction by the Buyer of the following condition precedent:
a) Each of the Competition Authorities (i) has notified the Buyer in
writing that the conditions for a prohibition of the delivery of
the Shares to the Buyer according to the applicable merger
control laws of the jurisdiction of the notifying Competition
Authority are not fulfilled, or (ii) has cleared the delivery of
the Shares to the Buyer according to the applicable merger
control laws of the jurisdiction of the respective Competition
Authority or, (iii) in the absence of any such notice or
clearance decision of a Competition Authority, the Buyer confirms
in writing that the delivery of the Shares, in the Buyer's
opinion, as confirmed by legal advice of a law firm of
international reputation, is deemed to be cleared according to
the applicable merger control laws of the jurisdiction of such
Competition Authority.
b) Each of the competent authorities in Switzerland and - if
applicable - UK, France and the United States having confirmed
that the transaction contemplated herein does not trigger any
mandatory takeover obligation for the Buyer or the Seller.
(2) The Buyer undertakes to obtain the confirmations referred to under
(1) above. The Buyer shall immediately notify the Seller when the
conditions precedent set out in Section 4 (1) are fulfilled.
(3) The Parties shall not proceed with the Closing should the conditions
precedent set out in Section 4 (1) not be fulfilled by June 30, 2006
or such other date as may be mutually agreed upon between the
Parties.
(4) Upon notification of Seller by Buyer that the conditions precedent
set out in Section 4 (1) are fulfilled, Buyer and Seller shall
immediately and concurrently take all necessary steps for the
fulfilment of this Agreement according to Section 5 below.
(5) The Buyer (being in the status of incorporation) shall be entered in
the relevant commercial register of any Swiss Canton and the Board
of Directors of the Buyer shall immediately upon entry of the
relevant commercial register of the relevant Canton formally approve
this Agreement with effect as of the date hereof.
5. CLOSING
(1) Subject to the realization of the conditions precedent set out in
Section 4 above, closing will take place in Zurich on June 30, 2007
at the latest or at any other place or on any other date agreed in
writing by the Parties (the "CLOSING" and the "CLOSING DATE"). In
case the Share price reaches CHF 75 prior to June 30, 2007, the
Buyer shall have the right to request from the Seller the immediate
transfer of the Shares at the price specified in Schedule B. In this
case, the Closing Date shall occur 5 calendar days after written
notification of such request by the Buyer to the Seller (the "EARLY
CLOSING DATE").
(2) The Shares purchased hereunder shall be delivered by the Seller to
the Buyer, on the Closing Date through the facilities of SIS Sega
Intersettle AG, the Swiss securities clearing organisation ("SIS")
on the Closing Date. Delivery of the Shares by the Seller will be
made by book-entry transfer in the SIS system to a bank account to
be notified by Buyer to Seller in due course (but at least five
business days before the closing). .
(3) Delivery of Shares by the Seller shall take place against the
payment of the Purchase Price by the Buyer pursuant to Section 6
below.
(4) The Seller may to the extent required develop his best efforts to
take all actions within its command that should be or become
necessary in order to enable the Buyer to pledge the Shares to an
entity designated by the banking entity which financed the Purchase
Price as a security for the financing of the Purchase Price.
6. PAYMENT OF PURCHASE PRICE
The Purchase Price (determined in its conditions and amounts
according to Schedule B) shall be paid by the Buyer against delivery
of the Shares to an account which will be notified by Seller at
least five business days before the Closing.
7. UNDERTAKINGS
(1) Each Party agrees that it may provide, to the extent required,
reasonable assistance to the other for the purpose of the execution
of any legally required deeds, documents, acts and things as such
Party may from time to time reasonably require or as otherwise may
be reasonably necessary to give full effect to this Agreement. Each
Party agrees to diligently comply with its obligations to divulge
information about the transaction contemplated herein in regard to
Stock Exchange Filings in Switzerland and - if applicable -, France,
UK and the USA.
(2) The Buyer undertakes to submit to the Seller's prior approval any
material communication or notification sent to any Competition
Authority in relation to this transaction. By material communication
or notification, the Parties mean any communication or notification
which contains confidential information about the Seller and/or its
beneficial owner. In addition, the Buyer shall promptly inform the
Seller of any important communication and in any case all
notification to or from a Competition Authority in relation to this
transaction, and provide the Seller with a copy of such
communication or notification, as the case may be after having
blanked out information which is confidential for the Buyer, its
related companies and the Company. Upon request of the Seller, the
Buyer undertakes to inform the Seller about the status and progress
of any pending or intended notification proceedings.
(3) It is the intention of the Parties that the delivery of the Shares
and the payment of the Purchase Price be effectively completed. The
Parties undertake to develop their best efforts to find alternative
solutions, acceptable for both Parties, to this effect should the
Closing not take place for a reason or another.
8. EXPENSES
The Seller and the Buyer shall bear their own taxes, own legal costs
(if any) and all their other out-of-pocket expenses (if any).
9. REPRESENTATIONS AND WARRANTIES
(1) The Seller represents and warrants to the Buyer as at the Signing
and Closing Date that:
(a) This Agreement has been duly authorized and signed by the Seller
and constitutes a valid and legally binding agreement of the
Seller enforceable against the Seller in accordance with its
terms;
(b) All relevant corporate consents or approvals necessary for the
execution, delivery and performance by the Seller of this
Agreement and the consummation of the transactions herein
contemplated have been obtained or made and are in full force and
effect; and the Seller has full right, power and authority to
enter into this Agreement and to perform its obligations
hereunder including to sell, assign, transfer and deliver the
Shares to be sold hereunder;
(c) The compliance by the Seller with all of the provisions of this
Agreement and the consummation of the transactions contemplated
hereby will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default
under, the Seller's articles of association or equivalent
constitutive documents, if any, of the Seller, any resolution or
authorization of the Seller's board of directors, any agreement
or instrument to which the Seller is a party or by which the
Seller is bound, or any applicable statute or any order, rule or
regulation (including regulations on insider dealing) of any
court or governmental agency or body having jurisdiction over the
Seller or the property or assets of the Seller;
(d) The Seller has, and immediately prior to the Closing Date will
have, good and valid title to the Shares free and clear of all
liens, encumbrances, equities or claims; and upon delivery of the
Shares pursuant to this Agreement good and valid title to the
Shares, free and clear of all liens, encumbrances, equities or
claims will pass to the Buyer;
The Seller undertakes to the Buyer that it will forthwith notify the
Buyer of any material change affecting any of the above warranties
(assuming them to have been repeated at the time of the change) at
any time before payment of Purchase Price.
To the extent permitted by law, any further claims and remedies for
warranties (Gewahrleistung) are hereby expressly waived and excluded
other than explicitly provided for under this Section 9 (1). For the
avoidance of doubt, the Seller makes no representation and gives no
warranty in respect of the Company.
(2) The Buyer represents and warrants to the Seller as at the Signing
and Closing Date that:
(a) This Agreement has been duly authorized and signed by the Buyer
and constitutes a valid and legally binding agreement of the
Buyer enforceable against the Buyer in accordance with its terms;
(b) The Buyer made all filing and has, or will as of the Closing Date
have, obtained all consents, concessions, approvals,
authorizations and orders, governmental, corporate, judicial or
other, if any, each time in respect of both the Buyer, necessary
for the execution, delivery and performance by the Buyer of this
Agreement and the consummation of the transactions herein
contemplated and are in full force and effect; and the Buyer has
full right, power and authority to enter into this Agreement and
to perform its obligations hereunder including to purchase the
Shares to be sold hereunder.
(c) The transaction under this Agreement can be closed as of the
Closing Date without any competition law risks for the Seller.
(d) There are neither directly nor indirectly adverse financial
consequences for the Seller under any merger control laws and
mandatory take over bid laws in relation to the transactions
contemplated in this Agreement.
(e) The compliance by the Buyer with all of the provisions of this
Agreement and the consummation of the transactions contemplated
hereby will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default
under, the articles of association or equivalent constitutive
documents of the Buyer, any resolution or authorization of the
Buyer's boards of directors (or equivalent governance bodies) or
stockholders, any agreement or instrument to which the Buyer is a
party or by which the Buyer is bound, or any statute or any
order, rule or regulation (including regulations on insider
dealing) of any court or governmental agency or body having
jurisdiction over the Buyer or the property or assets of the
Buyer;
The Buyer undertakes to the Seller that it will forthwith notify the
Seller of any material change affecting any of the above warranties
(assuming them to have been repeated at the time of the change) at
any time before payment of the Purchase Price.
To the extent permitted by law, any further claims and remedies for
warranties (Gewahrleistung) of the Buyer are hereby expressly waived
and excluded other than explicitly provided for under this Section
9(2).
(3) Each Party (the "INDEMNIFYING PARTY") hereby undertakes to indemnify
the other Party, its beneficial owner, members of the Board of
Directors, Officers and employees (each an "INDEMNIFIED PARTY")
against any direct losses, liabilities, damages, costs, charges,
expenses (including reasonable legal fees) which any of them may
incur at the exclusion of any consequential or indirect damages (the
"INDEMNIFIED DAMAGES"), which are suffered or incurred by the
Indemnified Party as a result of a breach of any of the
representations and/or warranties of the Indemnified Party under
this Agreement. The liability of the Buyer and the Seller under this
Section 9 (3) shall be limited to 35% to the Purchase Price
according to Schedule B 1 (a) and 1 (b).
(4) In addition to the Buyer's indemnity obligations for Indemnified
Damages under Sections 9 (3) and (5), the Buyer undertakes to
indemnify, defend, protect and hold harmless the Seller, its
beneficial owner, its members of the Board of Directors, Officers
and employees (each an "INDEMNIFIED PARTY FOR MERGER CONTROL
DAMAGES"), from and against any and all liabilities, claims,
counterclaims, damages, actions, suits, proceedings, losses, costs
and expenses (including without limitation any court costs,
reasonable attorneys' fees, reasonable experts' fees, fines,
penalties and interest) incurred by any of them (the "INDEMNIFIED
MERGER CONTROL DAMAGES") as a result of or in relation to any breach
of, misrepresentation, or inaccuracy in the representations and/or
warranties of the Buyer set forth in Sections 9 (2) (b), (c) and
(d), unless such INDEMNIFIED MERGER CONTROL DAMAGES have been caused
by the failure of the Indemnified Party for Merger Control Damages
to comply with reasonable request of the Buyer under Section 7 (1)
and/or authorities.
The Buyer undertakes to promptly pay to the Seller the full amount
of any such Indemnified Merger Control Damages actually incurred by
any Indemnified Party for Merger Control Damages within thirty (30)
days following delivery of a written demand by the Seller to such
effect to the Buyer accompanied by such information and
documentation as may be reasonably necessary to identify such
Indemnified Merger Control Damages, it being understood that, even
if incurred, the Seller shall (with the consent of the Buyer which
shall not be unreasonably withheld by the Buyer) take reasonable
actions to oppose any fines imposed by a Competition Authority.
(5) In addition to the Buyer's indemnity obligations under Sections 9
(3) and (4) for Indemnified Damages and Indemnified Merger Control
Damages, the Buyer undertakes to indemnify the Seller as well as any
other Indemnified Party and/or Indemnified Party for Merger Control
Damages against any fines, liabilities, costs, charges, expenses
(including reasonable legal fees) imposed on any of them by any
authority whether as the result of the structuring of the
transaction as contemplated in Preamble 1 above or otherwise,
including in particular fines which might be imposed on the Seller,
its beneficial owner, members of the Board of Directors, Officers
and employees, as the result of a lack of receipt of all required
authorizations from the competition authorities or other
governmental bodies before completion of the transaction, unless
such INDEMNIFIED MERGER CONTROL DAMAGES have been caused by the
failure of the Indemnified Party for Merger Control Damages to
comply with reasonable request of the Buyer under Section 7 (1)
and/or authorities.
10. PRESS RELEASES
Each Party shall submit to the other Party any press release about
this Agreement or the transaction contemplated herein prior to its
divulgation for information only.
11. Assignment
The Seller shall have the right at any time prior to the Closing to
transfer and assign this Agreement with all its rights and
obligations to a wholly owned subsidiary of the Seller (the
Assignee), in which case, and without the consent or involvement of
the Buyer, the Assignee shall be considered as a Party to this
agreement as of the date of signing and the Seller shall be
discharged from its obligations hereunder. The Buyer shall be
notified of any such assignment and shall agree to a concurrent
release under the Escrow Agreement subject to the Assignee entering
into an escrow agreement in the same form and content with the
Buyer. Any cost and tax risk shall be borne by the Seller and/or
Assignee as well as any impact on merger control notification which
Buyer has already been made.
12. LAW AND ARBITRATION
(1) This Agreement is governed by Swiss substantive law, to the
exclusion of principles on the conflict of laws.
(2) Any dispute between the Parties arising out of this Agreement
regarding its interpretation, performance, validity, termination
and, in general, all the obligations provided herein which cannot be
amicably settled among the Parties shall be submitted to the
jurisdiction of a panel of three arbitrators in accordance with and
subject to the Rules of Arbitration of the International Chamber of
Commerce, Paris, then in force. The arbitrators will be appointed
pursuant to such rules. The arbitration will take place in Geneva,
Switzerland, in English language. The cost of any arbitration
proceeding will be assessed against the unsuccessful Party and the
arbitrators will be required to make such cost part of any ruling
issued by them.
13. NOTICES
(1) Any notice or notification in any form to be given under this
Agreement may be delivered in person or sent by telex, facsimile or
telephone (subject in the case of a communication by telephone to
confirmation by telex or facsimile) addressed to:
in the case of the Seller
Xxxxxxx Xxxxxxxxxxxx, Xxxxx Finance S.A., 00 xxx Xxxx Xxxxxx Xxxxxxxx;
X - 0000 Xxxxxxxxxx
with a copy to Pit Reckinger, Elvinger, Hoss & Prussen, Avocats, 0 Xxxxx
Xxxxxxx Xxxxxxxxx, X - 0000 Xxxxxxxxxx
in the case of the Buyer
Xx. Xxxx Xxxx, x/x Xxxxxx Xxxxxxx XX, X.X. Xxx, 0000 Xxxxxx, Xxxxxxxxxxx
with a copy to Xx. Xxxxxxxxx Xxxxxx, White & Case, Xxxxxxxxxxxxx 00,
00000 Xxxxxxx
Any such notice shall take effect, in the case of delivery, at the time
of delivery and, in the case of telex or facsimile, at the time of
dispatch.
(2) Any Party may change the address to which notices, requests, demands
or other communications to such Party shall be delivered or mailed
by giving notice thereof to the other Party hereto in the manner
provided herein.
14. MISCELLANEOUS
Should any provision of this Agreement be or become partly or
entirely invalid or unenforceable this shall not affect the validity
of the remaining provisions. The Parties shall replace the partly or
entirely invalid or unenforceable provision by a valid or
enforceable provision that reaches the Parties' original economic
intent and purpose with regard to such partly or entirely invalid or
unenforceable provision. The same applies in the event of gaps of
this Agreement; the Parties shall in such event implement provisions
into this Agreement closing the respective gap.
Schedules:
Schedule A: Shares
Schedule B: Purchase Price
Schedule C: Escrow Agreement
Place, Date: 05.12.05 Luxembourg
Xxxxx Finance S.A.
/s/
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Philippe Foriel-Destezet
Triventura AG, being incorporated (in Grundung befindlich)
Place, Date: Luxembourg 05.12.05
/s/ /s/
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Xxxxxxx Xxxxxx Xxxxxx Xxxxx
SCHEDULE A
SHARES
1. The Shares shall be:
12,000,000 (twelve million) ordinary registered shares with a nominal
value of CHF 1.00 each of Adecco S.A. (ISIN CH0012138605)
2. It is the intention of the Parties, in case of change of share capital
structure or upon the occurrence of an event having a diluting or
concentrative effect on the number or nominal price of the Shares,
including but not limited to the exchange of shares, split, merger or
change of number of outstanding shares of the Company, between Signing
and Closing of this Agreement, the number of Shares or the price per
share to be sold by the Seller to the Buyer shall be adapted in due
proportion according to the "like for like principle" and recognized
and generally applicable market practice. Each Party shall have the
right to revert to the auditors of the Company or, with the agreement
of the other Party, to any other investment bank of prime quality and
international reputation to determine the adjustment of the number of
Shares or the price per share to take place in accordance with such
recognized and generally applicable practice.
SCHEDULE B
PURCHASE PRICE
1. The Purchase Price shall be calculated as follows:
(a) Number of the Shares (12,000,000)
multiplied by
the Share Price of CHF 63.--
equaling to CHF 756 million (Swiss Francs seven hundred and
fifty-six million)
plus
(b) Profit share: 50% of the upside on the 12 million Shares,
calculated as 50% of the differential value between:
(i) the average of the Company's official closing prices in
CHF on each of the last five trading days of SWX, prior to
Closing Date, i.e. June 30, 2007 at the latest; and
(ii) CHF 63.-
In case of an Early Closing Date, the minimum profit share shall
be of CHF 72 million.
SCHEDULE C
ESCROW AGREEMENT
