SHARE PURCHASE AGREEMENT II
between
▇▇▇▇▇ Finance S.A.
and
Triventura AG
a subsidiary of ▇▇▇▇▇▇ Holding AG, being incorporated (in Grundung)
for Shares in
Adecco S.A.
--------------------------------------------------------------------------------
SHARE PURCHASE AGREEMENT II
between
▇▇▇▇▇ Finance S.A., ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
(hereinafter the "SELLER")
and
Triventura AG, a subsidiary of ▇▇▇▇▇▇ Holding AG, being incorporated (in
Grundung befindlich), c/▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ + Partner AG, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇ ▇▇▇▇
(hereinafter the "BUYER")
PREAMBLE
1. Philippe Foriel-Destezet and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 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 ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 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
2
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. For the avoidance of doubt this Section 4(5) shall not
be a condition precedent.
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.
3
(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.
4
(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
5
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
6
telephone (subject in the case of a communication by telephone
to confirmation by telex or facsimile) addressed to:
in the case of the Seller
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ Finance S.A., ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇; ▇ - ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ with a copy to Pit Reckinger,
Elvinger, Hoss & Prussen, Avocats, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇ - ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
in the case of the Buyer
▇▇. ▇▇▇▇ ▇▇▇▇, ▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇.▇. ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ with a copy to ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, White & Case,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇
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
▇▇▇▇▇ Finance S.A.
/s/ Philippe Foriel-Destezet
-----------------------------------
Philippe Foriel-Destezet
Triventura AG, being incorporated (in Grundung befindlich)
Place, Date: Luxembourg 05.12.05
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------- ----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
7
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.
8
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.
9
SCHEDULE C
ESCROW AGREEMENT
10
