Execution Version
SHARE PLEDGE AGREEMENT
between
Xxxxx X. Xxxxxx
as pledgor
and
Deutsche Bank AG
as pledgee
regarding
the pledge of shares in Astra
CONTENTS
CLAUSE PAGE
------ ----
RECITALS.......................................................................3
1. DEFINITIONS AND INTERPRETATION..........................................3
2. PLEDGE AND PLEDGORS' OBLIGATIONS........................................6
3. USUFRUCT AND DIVIDENDS..................................................8
4. VOTING RIGHTS...........................................................9
5. FURTHER UNDERTAKINGS OF THE PLEDGOR....................................10
6. APPLICATION OF PROCEEDS................................................10
7. ENFORCEMENT............................................................10
8. CONTINUING SECURITY; RELEASE OF THE PLEDGED ASSETS.....................11
9. REPRESENTATIONS AND WARRANTIES.........................................12
10. FURTHER ASSURANCES OF THE PLEDGOR......................................13
11. NO ASSIGNMENT OR TRANSFER BY PLEDGORS..................................14
12. EFFECTIVENESS OF COLLATERAL; DISCHARGE OF SECURED DEBT.................14
13. POWER OF ATTORNEY AND NOTICES..........................................15
14. EXCULPATION............................................................15
15. EXPENSES AND TAXES.....................................................15
16. CURRENCY CONVERSION....................................................16
17. SEVERABILITY...........................................................16
18. WAIVERS AND MODIFICATIONS..............................................16
19. COUNTERPARTS...........................................................16
20. LAW AND JURISDICTION...................................................16
YOURS SINCERELY,..............................................................21
SIGNATORIES...................................................................22
ANNEXES
Annex 1.0: Details of Pledgors' Participation in Astra...................18
Annex 2.0: Assignment by the Beneficiary to the Pledgor..................19
Annex 3.0: Notification to Share Register................................20
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THIS AGREEMENT (the "Agreement") IS MADE BETWEEN:
1. Xxxxx X. Xxxxxx, Xxxxxxxx Xxxx Xxxx, Xxxxxxx Xxxxxxx, XX0 0XX Herts,
England, as pledgor;
(the "Pledgor");
2. Xxxxxx Venture AG, c/x Xxxxxxx, Schatti + Partner AG, Xxxxxxxxxxxx 00x,
0000 Xxxx (ZG), ("Venture") as beneficiary of a usufruct; and
3. Deutsche Bank AG, Taunusanlage 12, 60325 Frankfurt am Main, as pledgee
("DB" or the "Pledgee", as the case may be).
RECITALS
(A) Venture and DB have entered into a Bi-lateral Equity-Linked Contract in
respect of Shares (as defined below) dated as of 06 December 2005 (the
"Contract").
(B) The Pledgor has agreed to secure Venture's obligations under the Finance
Documents (as defined below) by way of pledge of the Shares held in an
account with the Pledgee.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
(a) "Account" means the bank account opened by the Pledgor with the
Pledgee as further specified in Annex 1.0.
(b) "Account Pledge Agreement" means the account pledge agreement
dated on or about the day hereof between the Pledgor as pledgor
and DB as pledgee regarding the pledge of a certain account held
by the Pledgor.
(c) "Astra" means Adecco S.A., Cheserex (CH).
(d) "Beneficiary" means Venture as beneficiary of the Usufruct.
(e) "Beneficiary's Non-Pledged Account" has the meaning given to the
term "Pledgor's Account" in the Other Account Pledge Agreement
made with the Beneficiary.
(f) "Calculation Agent" has the meaning ascribed to it in the
Contract.
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(g) "Cash Replacement Price" means an amount per share in CHF equal
to the quotient of the Termination Notional Amount divided by
Total Number of Units.
(h) "Collateral Rights" means all rights, powers and remedies of the
Pledgee provided by this Agreement or by law.
(i) "Custody Agreement" means the custody agreement dated on or
about the date hereof between the Pledgor and DB.
(j) "Dividends" means all dividend payments relating to the Shares
resolved by a shareholders' meeting of Astra and effected by
Astra whether in cash or in the form of additional shares in
Astra (stock dividend) or in any other form.
(k) "Enforcement" means the foreclosure or any other kind of
realisation of the Pledged Assets.
(l) "Event of Default" means an Event of Default as defined in the
Contract.
(m) "Finance Documents" means the Contract, the Other Share Pledge
Agreements, the Custody Agreement, the Account Pledge Agreement,
the Other Account Pledge Agreements and this Agreement.
(n) "Fixed Amount" has the meaning given to it in the Contract.
(o) "including" means "including without limitation", not delimiting
the term(s) to which the word relates to the example(s)
thereafter mentioned.
(p) "Obligor(s)" means the Pledgor, Venture, the pledgors under the
Other Account Pledge Agreements, the pledgors under the Other
Share Pledge Agreements or any of them.
(q) "Other Acccount Pledge Agreements" means each of the other
account pledge agreements dated on or about the day hereof
between Xxxxxx Holding AG, Xxxxxx X. Xxxxxx, Xxxxxxx Xxxxxx,
Xxxxxxx Xxxxxx, Xxxxxxxx Xxxxxx and Xxxxxxxx Xxxxxx as pledgors
and DB as pledgee regarding the pledge of a certain bank
account.
(r) "Other Share Pledge Agreements" means each of the other share
pledge agreements dated on or about the day hereof between each
of Xxxxxx Holding AG, Xxxxxx X. Xxxxxx, Xxxxxxx Xxxxxx, Xxxxxxx
Xxxxxx, Xxxxxxxx Xxxxxx and Xxxxxxxx Xxxxxx, in each case as
pledgor, and DB as pledgee regarding the pledge of shares in
Astra.
(s) "Pledge" means a pledge pursuant to Art. 899 et seq. of the
Swiss Federal Civil Code over the Pledged Assets in accordance
with the terms of this Agreement.
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(t) "Pledged Assets" means the Shares, Dividends and Related Assets
or any other security or asset that is to be or will be pledged
to the Pledgee under this Agreement.
(u) "Pledgee" means the Deutsche Bank AG.
(v) "Related Assets" means, except for Dividends, all monies payable
in respect of the Shares, including, without limitation
repayments of the nominal value of the Shares and all other
rights, benefits and proceeds in respect of or derived from the
Shares (whether by way of redemption, subscription rights, bonus
shares, preference, option, substitution, conversion or
otherwise).
(w) "Replacement Excess Proceeds" means an amount in CHF equal to
the product of the number of Shares sold pursuant to Clause 2.4
(b) and the amount per Share by which the price per Share
realized by the Pledgee upon such sale exceeds the Cash
Replacement Price.
(x) "Secured Debt" means any and all present and future obligations
and liabilities of any nature (whether actual or contingent,
matured, liquidated or unliquidated and whether owed jointly or
severally and whether as principal or surety or in any other
capacity whatsoever) of each Obligor due, owing or incurred
under or in connection with the Finance Documents (or any of
them) to the Pledgee or any receiver (including, without
limitation, under any amendments, supplements or restatements of
any of the Finance Documents) in any currency or currencies, in
each case together with all interest accruing thereon whether
before or after judgment, and all costs, charges and expenses
incurred by the Pledgee in connection with the protection,
preservation or Enforcement of its respective rights under the
Finance Documents or any other document evidencing or securing
any such liabilities.
(y) "Security" means a mortgage, charge, pledge, lien or other
security interest securing any obligation of any person or any
other agreement or arrangement having the effect of Security.
(z) "Shares" means (i) the shares in Astra now and hereinafter held
by the Pledgor in the Account during the lifetime of this
Agreement and (ii) all shares or other interests whatsoever
which may be substituted for the Shares whether by operation of
law or otherwise (including, without limitation, any share split
or consolidation) now or hereafter and (iii) any further shares
(including stock dividends) or other rights that will be issued
to the Pledgor by Astra in respect of or derived from the
Shares.
(aa) "Termination Notional Amount" has the meaning given to it in the
Contract and shall be determined in accordance with the Contract
as if the date as of which such determination is made for
purposes of this Agreement were an early termination date for
purposes of the Contract.
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(bb) "Total Number of Units" has the meaning given to it in the
Contract.
(cc) "Usufruct" means the Usufruct (Nutzniessung) in the Shares to be
granted by the Pledgor to the Beneficiary subject to and in
accordance with the requirements of Clause 3.1 hereof.
(dd) "Venture" means Xxxxxx Venture AG, c/x Xxxxxxx, Xxxxxxx +
Partner AG, Xxxxxxxxxxxx 00x, 0000 Xxxx (ZG).
1.2 INTERPRETATION
In this Agreement:
(a) references to any person includes a reference to any individual,
firm, company, corporation or other body corporate, government,
state or agency of a state or any joint venture, association or
partnership, (whether or not having separate legal personality),
as well as to any of its successors, permitted assignees and
transferees;
(b) references to any agreement or document are references to that
agreement or document as substituted, novated, supplemented,
amended or changed (however fundamental, including, without
limitation, accessions and changes to any facility provided or
increases in their maximum amount), from time to time, in
accordance with its terms but excluding for this purpose any
amendment, variation, supplement or modification which is
contrary to any provision of the Finance Documents;
(c) references to Clauses and Annexes are references to,
respectively, clauses of and annexes to this Agreement; and
(d) words importing the plural shall include the singular and vice
versa.
2. PLEDGE AND PLEDGORS' OBLIGATIONS
2.1 UNDERTAKING TO PLEDGE
The Pledgor agrees (i) to pledge to the Pledgee all Shares now or
hereafter owned by it together with all Dividends and (to the extent
legally permitted) Related Assets in respect of or derived from such
Shares, including as at the date hereof, as continuing security for the
Secured Debt until such time as the Secured Debt has been paid and
discharged in full, and no further Secured Debt is capable of arising as
further set out in Clause 8 and, therefore, (ii) to effect this Pledge
on the date hereof and (iii) to deposit such Shares in the Account. The
Beneficiary consents to the Pledge constituted by this Clause 2.
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2.2 EFFECTING OF THE PLEDGE
For the purposes of effecting the Pledge under Clause 2.1, the Pledgor
hereby pledges to the Pledgee the Shares, Dividends and (to the extent
legally permitted) Related Assets in respect of, or derived from, the
Shares. The Pledgee hereby accepts the Pledge. The number of Shares
pledged pursuant to Clause 2.1 and this Clause 2.2 at signing of this
Agreement is set out in Annex 1.0. The Pledgee shall have the right, but
not the obligation, to notify Astra of the Pledge.
2.3 RELATED ASSETS AND CERTIFICATION OF SHARES
(a) The Pledgor shall, promptly upon the accrual, offer or issue and
after receipt of any Related Assets (in the form of shares,
warrants, subscription rights, participation rights or other
securities) or new Shares to which the Pledgor is or will be
entitled, procure the delivery thereof to the Pledgee, including
all certificates and other documents (if any) representing such
new Shares or Related Assets, in the case of registered shares
in certificated form duly endorsed in blank.
(b) The Pledgor hereby assigns the right to request delivery of
certificates representing the Shares to the Pledgee and
undertakes to perform all acts requested by the Pledgee to
validly pledge the certificates in favour of the Pledgee,
including, without limitation, to duly endorse such certificates
in blank.
2.4 REPLACEMENT OF SHARE WITH OTHER COLLATERAL
(a) The Pledgor may from time to time by notice in writing request
that the Pledgee release Shares pledged pursuant to the terms of
this Agreement upon pledging additional cash collateral under
the Account Pledge Agreement. In such event, as soon as
reasonably practicable following the deposit and pledge of cash
in favour of the Pledgee pursuant to the terms of the Account
Pledge Agreement, Pledgee shall release such number of Shares
which is equal to the amount of the additional cash pledged
pursuant to the Account Pledge Agreement divided by the CHF
amount equal to the Cash Replacement Price. Fractions shall be
rounded down to the next Share.
(b) The Pledgor may from time to time by notice in writing require
that the Pledgee release and sell on the Pledgor's behalf such
number of Shares pledged pursuant to the terms of this Agreement
as Pledgor may designate for such purpose. As soon as reasonably
practicable upon receipt of such notice pursuant to this
provision, Pledgee shall release and sell on the Pledgor's
behalf such designated number of Shares, transfer the proceeds
of such sale into the cash account pledged to Pledgee pursuant
to the Account Pledge Agreement and disburse to the Pledgor any
Replacement Excess Proceeds to such account as the Pledgor may
direct.
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3. USUFRUCT AND DIVIDENDS
3.1 USUFRUCT
(a) Each of the Pledgor and the Beneficiary confirms, undertakes,
represents and warrants to the Pledgee that Pledgor has not
granted and shall not grant to the Beneficiary a usufruct
(Nutzniessung) in respect of the Shares (whether in respect of
all or part only of the Shares) pursuant to Articles 745 et seq.
of the Swiss Civil Code unless such usufruct is and remains at
all times: (i) junior (nachrangig) to the rights of the Pledgee
under this Agreement; (ii) limited to an entitlement to cash
dividends resolved by the general meeting of Astra, including a
repayment of nominal value of the Shares and (iii)
non-transfrable.
(b) Each of the Pledgor and the Beneficiary undertakes to the
Pledgee that it will not (nor allow any other person to) alter,
modify, add, remove, dis-apply or otherwise amend any term or
condition governing the grant of the Usufruct without the prior
written approval of the Pledgee, provided, however that nothing
in this provision shall be prevent the Pledgor and/or the
Beneficiary to effect any such alteration, modification,
addition, removal, dis-application or amendment that results in
the immediate, permanent, irrevocable and unconditional (a)
termination, early expiration, and/or waiver of the Usufruct by
the Beneficiary; and (b) reassignment by the Beneficiary to the
Pledgor of the Usufruct, in each case in respect of all or part
only of the Shares that were subject to the Usufruct prior to
such termination, early expiration and/or waiver.
(c) The Usufruct shall expire upon the earlier of the date (the
"Usufruct Termination Date"): (i) that falls on the fourth
anniversary of the date hereof plus six months (the "Usufruct
Maturity Date"); (ii) on which DB declares to the Pledgor and
the Beneficiary that an Event of Default has occurred and that
the Pledgee intends to effect Enforcement. "; and (iii) of the
adjudication of bankruptcy (Konkurs) or of moratorium or
composition proceedings (Nachlassstundungs- und
Nachlassverfahren) in respect of Venture. Each of the Pledgor
and the Beneficiary undertakes, warrants and agrees to and with
the Pledgee that the Usufruct shall expire without further
notice as of the Usufruct Termination Date.
(d) Conditional solely upon the occurrence of the Usufruct
Termination Date, the Beneficiary hereby assigns in accordance
with Article 751 of the Swiss Civil Code all rights (including
ancillary rights) held by it in connection with or underlying
the Usufruct back to the Pledgor or any successor in title in
the Shares. In addition, the Pledgee shall be entitled to date
and thereby effectuate the duly signed assignment by the
Beneficiary to the Pledgor enclosed as Annex 2 to this
Agreement.
(e) the Pledgee hereby declares that it consents to the creation of
the Usufruct, on the condition that the terms of the Usufruct
are not inconsistent with the requirements of this Clause 3.1.
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(f) No later than 14 calendar days upon the signing of this
Agreement, the Pledgor shall provide to the Pledgee a letter to
the share register of Astra in the form as shown in Annex 3.0 to
this Agreement signed by all Obligors. Upon receipt of such
letter, Pledgee shall forward the same to the share register of
Astra with the confirmation of its agreement to the contents of
the letter.
3.2 DIVIDENDS
Unless and until an Event of Default has occurred, the Pledgor shall be
entitled to receive and retain all Dividends and Related Assets (other
than those referred to in Clause 2.3), subject at all times to the terms
and conditions of the Account Pledge Agreement. Following the occurrence
of an Event of Default, only the Pledgee shall be entitled to receive
and retain any Dividends and/or Related Assets and in such case, the
Dividends or Related Assets shall form part of the proceeds to be
applied in accordance with Clause 6 hereof.
Notwithstanding the preceding paragraph of this Clause 3.2, during the
term of the Usufruct the Beneficiary shall be entitled to receive all
cash dividends and repayments of nominal value which but for the
Usufruct would have been received by the Pledgor. To the extent that a
cash dividend or nominal value repayment is paid prior to the earlier of
the Usufruct Termination Date and an Event of Default and does not
exceed CHF 1.00 per Share in any fiscal year of Astra, the Pledgee
shall, promptly after receiving such payment from Astra, disburse it to
the Beneficiary's Non-Pledged Account free of any objection, retention
or set-off. To the extent that such cash dividend or nominal value
repayment is paid prior to the earlier of the Usufruct Termination Date
and an Event of Default, but exceeds CHF 1.00 per Share in any fiscal
year of Astra, Pledgee shall, promptly after receiving such payment from
Astra, credit the excess to the account of the Beneficiary pledged under
the Beneficiary's Other Account Pledge Agreement.
4. VOTING RIGHTS
(a) Until the occurrence of an Event of Default which is continuing
the Pledgor shall be entitled to exercise all voting rights in
relation to the Shares.
(b) Following the occurrence of an Event of Default, only the
Pledgee shall be entitled, at its discretion, to vote in any way
whatsoever wherefore the Pledgee is hereby given a power of
attorney, with the right of substitution, by the Pledgor to
vote. The parties are in agreement that this Agreement shall
constitute a power of attorney from the Pledgor in favour of the
Pledgee to exercise the voting rights of the Pledgor following
the occurrence of an Event of Default. The Pledgor undertakes to
issue at any time a power of attorney to such effect in a
separate document upon request of the Pledgee.
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(c) The Pledgee shall, promptly upon becoming aware thereof, inform
the Pledgor of any change of ownership in the Shares as a result
of Enforcement. The Pledgee is aware that the Pledgor may be
subject to regulatory obligations to make disclosure in respect
of any such changes of ownership within statutory deadlines.
5. FURTHER UNDERTAKINGS OF THE PLEDGOR
(a) Except with the Pledgee's prior written consent, the Pledgor
shall not enter into any legal instrument relating to, or
granting any lien, encumbrance, charge or other third party
right over, or dispose of, deal with or assign the Pledged
Assets or take any other action with respect to the Pledged
Assets.
(b) The Pledgor shall notify the Pledgee of any occurrence which is
likely to have a material adverse effect or decrease in value of
the Pledged Assets in order to allow the Pledgee to effectively
ensure that the value of the Pledged Assets and validity of the
security interest created pursuant to this Agreement is
maintained, provided, however, that the Pledgor shall in no
event have an obligation to disclose non-public information
relating to Astra to the Pledgee.
6. APPLICATION OF PROCEEDS
Any proceeds received hereunder by the Pledgee, after the security
hereby constituted shall have become enforceable, in particular any
proceeds received under Clause 7, shall be applied in accordance with
the following order: (a) cost and expenses owed by the Obligors under
the Finance Documents, (b) fees owed by the Obligors to the Pledgee
under the Finance Documents, (c) unpaid (default) interest due under the
Finance Documents and (d) any other debt due under the Finance
Documents, in each case to the extent that they constitute Secured Debt.
7. ENFORCEMENT
(a) Upon the occurrence of an Event of Default, the Pledgee or any
such other institution instructed by the Pledgee for this
purpose, shall without any further prior notice or communication
to the Pledgor or any other Obligor be entitled, at its
discretion, to:
(i) effect Enforcement by either (1) private realisation
(Private Verwertung, including, without limitation,
self-sale (Selbsteintritt)) of Pledged Assets or (2)
enforcement proceedings pursuant to the Swiss Federal
Statute on Debt Collection and Bankruptcy under the
exclusion of Art. 41 of the Swiss Federal Statute on
Debt Collection and Bankruptcy (waiver of the beneficium
excussionis realis) and the parties hereto agree in
advance that a "Freihandverkauf" shall be admissible;
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(ii) act as Pledgee contracting in its own name and in the
name or for the account of third persons in private or
official Enforcement;
(iii) apply all Dividends and other monies arising from the
Shares or Related Assets as though they were the
proceeds of sale under this Agreement; and
(iv) (1) notify, or request the Pledgor to notify (who hereby
undertakes to do so), Astra of the transfer of the
Shares and (2) request, or request the Pledgor to
request Astra to register any acquirer of the Shares who
acquires the Shares in the course of Enforcement of the
Pledges in the shareholders' register as shareholder
with respect to the Shares.
(b) Failure by the Pledgee to sell Pledged Assets or to exercise any
right or remedy including, but not limited to, the acceptance of
partial or delinquent payments, shall not result in any
liability of the Pledgee and shall not prejudice any of the
rights the Pledgee may have under this Agreement or the Finance
Documents be a waiver of any obligation of the Obligors
hereunder and/or thereunder.
(c) Notwithstanding previous sales or transfers of Pledged Assets
without formality or notice, the Pledgee retains the right at
all times to take any measure it deems necessary or appropriate
in accordance with the Swiss Federal Statute on Debt Collection
and Bankruptcy.
(d) The Pledgor agrees that Pledgee can instruct a third party to
conduct the Enforcement of the Pledge for its account.
8. CONTINUING SECURITY; RELEASE OF THE PLEDGED ASSETS
(a) The Pledge constitutes a continuing security interest. The
security created hereby shall only terminate and the Pledgee
shall, subject to Clause 2.4 and to this Clause 8, only be
obliged to release the Pledged Assets or the remainder thereof
if and once the Pledgee is satisfied that all the Secured Debt
has been irrevocably paid in full and that all the agreements
which might give rise to Secured Debt have been terminated.
(b) Any Pledged Assets to be returned pursuant to the preceding
paragraph upon termination of this Agreement shall be delivered
net of any transfer taxes or other expenses in connection with
such return or release. Neither the Pledgee will make or shall
be deemed to have made any representation or warranty, whether
express or implied, with respect to any Pledged Assets so
delivered, except that any such Pledged Assets shall be
delivered to the Pledgor free and clear of any third party right
granted by the Pledgee.
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(c) If the Pledgor so requests the Pledgee in writing not later than
15 Business Days (or such other notice period as the parties may
agree in writing from time to time) prior to the Maturity Date
or the Early Termination Date or the Regulatory Termination Date
(as these terms are defined in the Contract), the Pledgee shall,
acting as agent of the Pledgor and on such terms as to price and
other matters as the Pledgor and the Pledgee may from time to
time agree, sell any number of Pledged Shares and transfer the
net proceeds thereof to the account pledged under the Other
Account Pledge Agreement concluded with Venture as pledgor. Any
proceeds so transferred shall be applied by the Pledgee in or
towards satisfaction of Venture's payment obligations under the
Contract in respect of its termination on the Maturity Date, the
Early Termination Date or the Regulatory Termination Date (as
the case may be).
(d) If the Pledgor so requests the Pledgee in writing not later than
5 Business Days (or such other notice period as the parties may
agree in writing from time to time) prior to the Maturity Date
or Early Termination Date (as these terms are defined in the
Contract), the Pledgee shall appropriate the Pledged Assets in
or towards satisfaction of Venture's delivery obligations under
the Contract in respect of its termination on the Maturity Date
or early Termination Date (as the case may be).
(e) Upon request by the Pledgor the Pledgee shall release Pledged
Assets from the Pledge constituted by this Agreement by
transferring such Pledged Assets to one of the accounts in
respect of which shares are pledged pursuant to the share pledge
agreements dated on or about the day hereof between the Pledgee
and each of Xxxxxx Holding AG, Xxxxxx X. Xxxxxx, Xxxxxxx Xxxxxx,
Xxxxxxx Xxxxxx, Xxxxxxxx Xxxxxx and Xxxxxxxx Xxxxxx, provided
that such Pledged Assets shall at all times during such transfer
remain pledged to the Pledgee.
9. REPRESENTATIONS AND WARRANTIES
The Pledgor represents and warrants to the Pledgee and undertakes during
the subsistence of this Agreement as follows:
(a) The Pledgor is, and will be, the sole, absolute legal and
beneficial owner of its Pledged Assets (except for the Usufruct
granted to Venture) and the Pledged Assets are and will continue
to be free and clear of any Security (except as created under
this Agreement) and/or any restriction on the ability to
transfer or realise all or any part of the Pledged Assets.
(b) All necessary governmental and other consents, approvals,
licenses and authorisations to enable it to enter into this
Agreement have been obtained and are, and will remain, in full
force and effect.
(c) All Shares owned by it have been validly issued and are fully
paid-in, in book-entry form only and not represented by
certificates, except in case of an exercise by the Pledgee of
the right assigned pursuant to Clause 2.3(b).
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(d) Annex 1.0 is accurate and complete.
(e) The Pledgor has reached the age of 18 years or over and has full
capacity to enter into this Agreement.
(f) The Pledgor has all necessary authority, powers, and consents
and has taken all necessary action to enable it lawfully to
enter into and perform this Agreement and to grant the security
interests and powers referred in the security arrangement.
(g) Any information the Pledgor provides or has provided to the
Pledgee in respect of its financial position, domicile or other
matters is accurate and not misleading in any material respect.
(h) The obligations expressed to be assumed by the Pledgor under
this Agreement are legal, valid, direct and unconditional
obligations binding on it and enforceable against it in
accordance with the terms thereof and that the Pledge
constituted by this Agreement complies with the Articles of
Association of Astra.
(i) It is not necessary that (i) the Agreement be filed, recorded or
enrolled with any court or other authority or (ii) any stamp,
registration or similar tax be paid on or in relation to the
Agreement.
10. FURTHER ASSURANCES OF THE PLEDGOR
(a) The Pledgor shall promptly do all things (including the
delivery, transfer, assignment or payment of all or part of the
Pledged Assets to the Pledgee or its nominee(s), and any consent
as may be required from it for the entry into the shareholders'
register) and execute all documents that are required or
expedient for the purpose of the exercise of Collateral Rights
or securing or perfecting the Pledge.
(b) The Pledgor undertakes to enter into and procure the perfection
of additional pledge agreements, if and to the extent that a
Pledge of certain Related Assets requires as a matter of law,
the execution and perfection of a specific pledge agreement
and/or any other action for such certain Related Assets.
(c) Upon the occurrence of an Event of Default, the Pledgor shall,
upon demand from the Pledgee, execute all documents and do all
other things that the Pledgee may require to facilitate the
Enforcement.
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(d) The Pledgor undertakes to indemnify the Pledgee for any
prejudice it may suffer as a result of the Pledgor's
non-performance and/or breach of any terms, covenants or
obligations under this Agreement and keep the Pledgee
indemnified against and harmless from any and all losses,
liabilities, costs and expenses incurred under or in connection
with this Agreement or its Enforcement as a result of such
non-performance or breach.
(e) The Pledgor irrevocably agrees to the choice of the substantive
laws of Switzerland as exclusive governing law of the Other
Share Pledge Agreements.
(f) The pledge of the Shares under this Agreement is granted in
connection with the extension of credit by DB to Venture. As
responsible lenders, DB wishes to ensure that the pledge of the
Shares is appropriate for the Pledgor and that the Pledgor fully
understand the risks to it in the event that Venture or any
other Obligor is unable to meet its obligations to DB. In
particular, the Pledgor should be aware that by pledging the
Shares it may lose its entitlement to such Shares. The Pledgor
confirms that it has obtained independent legal advice as to the
risk to the Pledgor in providing security under this Agreement.
11. NO ASSIGNMENT OR TRANSFER BY PLEDGORS
The rights and obligations of the Pledgor, the Beneficiary and the
Pledgee under this Agreement may not be assigned or transferred except
for assignments and transfers by the Pledgee upon prior written notice
to the Pledgor, which shall be given as soon as reasonably practicable
but in any case not later than 20 calendar days before such assignment
or transfer, to any other entity belonging to the Deutsche Bank Group,
Sonata Securites SA, Bluebird Securities SA and/or any other
securitization vehicle established under Luxembourg law and designated
by DB from time to time, provided, however, that such assignment can not
be effected without the prior consent of the Pledgor if supported by an
opinion of legal counsel or tax advisor the Pledgor informs the Pledgee
that such assignment would be materially adverse to the interests of the
Pledgor.
12. EFFECTIVENESS OF COLLATERAL; DISCHARGE OF SECURED DEBT
(a) The collateral constituted by this Agreement and the Collateral
Rights shall be cumulative, in addition to and independent of
every other security which the Pledgee may at any time hold for
the Secured Debt or any rights, powers and remedies provided by
law.
(b) Until all Secured Debt which may be or become payable to the
Pledgee under or in connection with the Finance Documents has
been irrevocably paid in full and unless the Pledgee otherwise
agrees, the Pledgor will not exercise any rights which it may
have upon Enforcement (i) to be indemnified by an Obligor, (ii)
to claim any contribution from any guarantor of the obligations
of any Obligor under the Finance Documents and/or (iii) to take
the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Pledgee under the
Finance Documents or of any other guarantee or security taken
pursuant to, or in connection with the Finance Documents by the
Pledgee.
14
13. POWER OF ATTORNEY AND NOTICES
(a) Each of the Pledgor, the Beneficiary and KJJ authorises the
Pledgee to be its attorney and in its name, on its behalf and as
its act and deed to execute, deliver and perfect all documents
(including to transfer Shares to an acquirer) and do all things
that the Pledgee may consider to be requisite for carrying out
any obligation imposed on the Pledgor and/or the Beneficiary
under this Agreement or exercising any of the rights conferred
on the Pledgee by this Agreement or by law, in particular in
connection with a private realisation (Private Verwertung,
including, without limitation, self-sale (Selbsteintritt))
provided that as long as no Event of Default has been declared
the Pledgee agrees not to take any such step unless the Pledgee
would have the right under this Agreement to request the Pledgor
and/or the Beneficiary to take such step and the Pledgor and/or
the Beneficiary has failed to take such step within 10 Business
Days (as defined in the Contract) upon being notified of that
failure and being requested to comply.
(b) Any notices by the Pledgee to the Pledgor and/or the Beneficiary
under this Agreement shall be sent by fax and/or email to
Deloitte & Touche AG, Xxxx X. Xxxxxx, Xxxxxxxxxxxx 0, X.X. Xxx,
0000 Zurich, fax nr. x00 00 000 00 00 or such other fax number
as the Pledgor may designate for such purpose from time to time.
14. EXCULPATION
The Pledgee shall not be liable for any breach of this Agreement except
in the case of gross negligence or willful default upon its part. In
particular, the Pledgee shall not be liable by reason of (a) taking or
not taking any action under this Agreement or exercising any Collateral
Right, (b) any neglect or default in connection with the Pledged Assets,
or (c) the Enforcement or collection of all or any part of the Pledged
Assets, except in case of proven wilful misconduct and gross negligence.
15. EXPENSES AND TAXES
Each party shall bear the registration costs and stamp duties or other
duties incurred by it in connection with the execution, perfection of
the Pledge. In the event of an Enforcement of the Pledge hereby
constituted or the exercise of any Collateral Right the Pledgor shall
reimburse and indemnify the Pledgee for any costs and expenses incurred
by it. Any transfer or stamp duty taxes, including, without limitation
Swiss Securities Transfer and Stamp Duty Tax, incurred in connection
with the sale of the Shares shall be borne and indemnified by the
Pledgor.
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16. CURRENCY CONVERSION
For the purpose of or pending the discharge of any of the Secured Debt,
the Pledgee may convert any money received, recovered or realised or
subject to application by it under this Agreement from one currency to
another, as the Pledgee considers appropriate. Any such conversion shall
be effected at the Pledgee's spot rate of exchange for the time being
for obtaining such other currency with the first currency.
17. SEVERABILITY
If any provision of this Agreement is or becomes illegal, invalid or
unenforceable in any jurisdiction, this shall not affect or impair (i)
the validity or enforceability in that jurisdiction of any other
provision of this Agreement or (ii) the validity or enforceability in
any other jurisdiction of that or any other provision of this Agreement,
and the parties will negotiate in good faith to replace the relevant
provision by another provision reflecting as closely as possible the
original intention and purpose of the parties.
18. WAIVERS AND MODIFICATIONS
(a) No failure on the part of the Pledgee to exercise, or delay on
its part in exercising, any Collateral Right shall operate as a
waiver thereof, nor shall any single or partial exercise of a
Collateral Right preclude any further or other exercise of that
or any other Collateral Right.
(b) This Agreement may be terminated, amended or modified only
specifically and in writing.
19. COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument.
20. LAW AND JURISDICTION
(a) This Agreement shall in all respects, including, without
limitation, all the rights in rem aspects, be governed by, and
construed in accordance with, the substantive laws of
Switzerland.
If and to the extent that the choice of the substantive laws of
Switzerland is not recognized by the relevant court, this
Agreement shall be governed by, and construed in accordance
with, the substantive laws of the Federal Republic of Germany.
16
(b) Each party submits to the exclusive jurisdiction of the
Commercial Court of the Canton of Zurich (Handelsgericht des
Kantons Zurich), Switzerland, venue being Zurich 1, with the
right to appeal to the Swiss Federal Court (Eidgenossisches
Bundesgericht) in Lausanne as provided by law, whose judgment
shall be final, for all purposes relating to this Agreement. The
Pledgee reserves the right to bring an action against the
Pledgor at its place of domicile or before any other competent
court.
The Pledgor elects Deloitte & Touche AG, Xxxx X. Xxxxxx,
Xxxxxxxxxxxx 0, X.X. Xxx, 0000 Xxxxxx as its special domicile
pursuant to Article 50 Section 2 of the Swiss Federal Debt
Collection and Bankruptcy Act.
17
ANNEX 1.0:DETAILS OF PLEDGORS' PARTICIPATION IN ASTRA
Number of Shares: 4,468,614
Bank Account Number with Pledgee: [Deleted from the filing as confidential
information]
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ANNEX 2.0: ASSIGNMENT BY THE BENEFICIARY TO THE PLEDGOR
From:
Xxxxxx Venture AG
c/x Xxxxxxx, Xxxxxxx + Partner AG
Xxxxxxxxxxxx 00x
0000 Xxxx
To:
Xxxxx X. Xxxxxx Deutsche Bank AG
Newsells Park Stud Taunusanlage 00
Xxxxxxx Xxxxxxx X-00000 Xxxxxxxxx am Main
XX0 0XX Herts, England
Date: ______________________________
Share Pledge Agreement with Deutsche Bank AG dated November 2005 (the
"Agreement")
Dear Sirs:
Reference is made to the above Agreement. Terms used but not defined herein
shall have the meaning given to them in the Agreement.
We confirm that the Usufruct in the Shares is hereby terminated and waive all
further rights relating thereto. In accordance with Clause 3.1(c) of the
Agreement we hereby assign all rights held by us in connection with or
underlying to the Ususfruct back to the Pledgor (or any successor in title to
the Shares) and confirm and represent and warrant that the Shares are no longer
in any way encumbered by the Usufruct.
This assignment becomes effective upon insertion of the date by Deutsche Bank
AG.
Xxxxxx Venture AG
/s/ X. Xxxxxxxx /s/ X. Xxxxx
------------------------------ ------------
Name: X. Xxxxxxxx Name: X. Xxxxx
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ANNEX 3.0:NOTIFICATION TO SHARE REGISTER
Adecco S.A.
Share Register
c/o ShareCommService AG
attn. of Xx. Xxxxx Xxxxxx
Xxxxxxxxxxxxx 00
0000 Xxxxxxxxxx
Zurich/Royston, [date]
Grant of a Right of Usufruct (Nutzniessung) in Adecco S.A. Shares
Dear Xx. Xxxxxx, Ladies, Gentlemen
We are writing to inform you that the undersigned shareholders of Adecco S.A.:
Xxxxxx Holding AG, Xxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx, Xxxxxxx Xxxxxx, Xxxxxxx
Xxxxxx, Xxxxxxxx Xxxxxx and Xxxxxxxx Xxxxxx have granted a right of usufruct
(Nutzniessung) to Xxxxxx Venture AG over such number each of Adecco shares held
by them, respectively, as shown in the attachment to this letter. These shares
are held in uncertificated form in custody accounts with Deutsche Bank AG,
Frankfurt and are subject to a pledge granted in favour of Deutsche Bank AG. The
usufruct is limited to cash dividends and repayments of nominal value resolved
by the general meeting of Adecco S.A.
The undersigned parties have agreed that
a) voting rights relating to the shares that are subject to the right of
usufruct shall continue to be exercised by the respective shareholders
(not by Xxxxxx Venture AG as holder of the usufruct);
b) cash dividends and repayments of nominal value relating to the shares
that are subject to the right of usufruct shall continue to be paid by
the share register of Adecco S.A. to Deutsche Bank AG, the shareholders'
bank maintaining the custody accounts in which the shares are held, who
shall be responsible to make disbursements in accordance with the rights
of Xxxxxx Venture AG and the relevant shareholder; and
c) the right of usufruct shall terminate on the earlier of [date falling
four and a half years after the date of the Share Pledge Agreement] and
the date when Deutsche Bank AG declares an Event of Default under a
share pledge agreement made between Deutsche Bank AG, the relevant
shareholder and Xxxxxx Venture AG as beneficiary of the right of
usufruct.
Xxxxxx Venture AG has acquired the right of usufruct in its own name and for its
own account, and requests that Adecco S.A. acknowledge Xxxxxx Venture AG as the
beneficiary of a right of usufruct in respect of the aforementioned shares.
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Further, all the undersigned kindly request the share register to take note of
and proceed in accordance with the above described agreements.
Yours sincerely,
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SIGNATORIES
THE PLEDGOR
Place, Date: Royston, 30.11.2005
/s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
The undersigned spouse of the Pledgor agrees to the pledge of the Shares to the
Pledgee in accordance with the terms of this Agreement:
Place, Date: Royston, 28.11.2005
/s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
THE PLEDGEE:
Place, Date: Zurich, 8.12.2005 DEUTSCHE BANK AG
/s/ Pierre-Xxxxxx Xxxxxxxx
----------------------------------
Name: Pierre-Xxxxxx Xxxxxxxx
Authorized signatory
/s/ Xxxxx Xxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxx
Authorized signatory
THE BENEFICIARY:
Place, Date: Zurich, 28.11.2005 XXXXXX VENTURE AG
/s/ X. Xxxxxxxx
----------------------------------
Name: X. Xxxxxxxx
/s/ X. Xxxxx
----------------------------------
Name: X. Xxxxx
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