SHARE PURCHASE AGREEMENT
between
▇▇▇▇▇ Finance S.A.
and
▇▇▇▇▇▇ Venture AG
for Shares in
Adecco S.A.
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SHARE PURCHASE AGREEMENT
between
▇▇▇▇▇ Finance S.A., ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
(hereinafter the "SELLER")
and
JacobsVenture AG, c/▇ ▇▇▇▇▇▇▇, Schatti + Partner AG, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇
(hereinafter the "BUYER")
PREAMBLE
1. Philippe Foriel-Destezet and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ on November 21, 2005
entered into negotiationsin 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 transaction 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 the Closing Date.
This being said, the Parties now agree as follows:
1. PURCHASE AND SALE
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 from the Closing Date at a net purchase price per Share of
CHF 63.- for a total consideration of CHF 756 million (the "PURCHASE
PRICE"), being the sum of the constituent items set forth in
Schedule B, to be paid cash in immediately available funds.
2. CLOSING
(1) Subject to the realization of the conditions precedent set out in
Section 4 below, the Seller shall transfer the Shares to the Buyer
against payment by the Buyer of the Purchase Price at closing in
accordance with the provisions of Section 2 and of Section 5 below
(the "CLOSING"). The Parties will undertake their best efforts that
Closing shall take place in Zurich on December 9, 2005, at the
latest, or at any other place or on any other date agreed by the
Parties (the "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 organization ("SIS").
Delivery of the Shares by the Seller will be made by book-entry
transfer in the SIS system to Deutsche Bank AG Frankfurt,
Taunusanlage 12 , 60325 Frankfurt, swift code ▇▇▇▇▇▇▇▇▇▇▇ .IBAN
Nummer: [Deleted from the filing as confidential information],
SegaIntersettle [Deleted from the filing as confidential
information] (Safe custody account).
(3) Delivery of Shares by the Seller shall take place against the
payment of the Purchase Price by the Buyer pursuant to Section 5
below. At signing the Seller shall provide the Buyer with an
irrevocable and unconditional confirmation that Seller's bank (UBS
AG) shall deliver the Shares after having received the Purchase
Price. The Bank's confirmation shall be valid until and including
December 9, 2005 24.00 hrs (Schedule D).
3. [INTENTIONALLY LEFT BLANK]
4. CONDITIONS PRECEDENT
(1) This Agreement is subject to the following conditions precedent:
(a) Prior to Closing Buyer shall deliver to Seller a confirmation of
Buyer's outside legal counsel in the form of Schedule C that the
Transaction does not represent a concentration;
(b) The Purchase Price shall irrevocably be paid by the Buyer to the
Seller in accordance with Section 5 below by December 9, 2005 at the
latest.
(2) In case the two above-mentioned conditions precedent are not
fulfilled by December 9, 2005, the Closing and the transaction
contemplated in this Agreement shall not take place.
5. PAYMENT OF PURCHASE PRICE
The Purchase Price (determined in its conditions and amounts
according to Schedule B) shall be paid against delivery of the
Shares to the following bank account:
UBS AG Zurich, account no. IBAN ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇, swift
code UBSWCH ZH80A.
6. 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.
(2) The Buyer undertakes to make to the extent required by applicable
law as promptly as possible any merger notifications to competition
authorities in the jurisdictions in which a merger control filing is
required and to submit to the Seller's prior approval any material
communication or notification sent to any competition authority,
including the European Commission, 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 of all notifications to or
from a competition authority, including the European Commission, in
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relation to this transaction, and provide the Seller with a copy of
such communication or notification, as the case may be after having
stroken out information which is confidential for the Buyer and/or
its related companies and the Company.
7. 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).
8. 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 8 (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 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; in particular, the Buyer represents and warrants
that
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there is no mandatory notification required for the transaction
under this Agreement under the Swiss Merger Control.
(c) The transaction under this Agreement does not need to be
notified before the Closing to any competition authorities and
the transaction under this Agreement can be closed 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 director (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
8(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 8 (3) shall be limited to 35% to the Purchase Price.
(4) In addition to the Buyer's indemnity obligations for Indemnified
Damages under Sections 8 (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 8 (2) (b) and (c).
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 8
(3) and (4) for Indemnified Damages and Indemnified Merger Control
Damages, the Buyer undertakes to indemnify the Seller as well as any
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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.
9. 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.
10. 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.
11. 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
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ 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.
12. 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.
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Schedules:
Schedule A: Shares
Schedule B: Purchase Price
Schedule C: Draft Confirmation Letter to be issued by White & Case
Schedule D: Draft Confirmation Letter to be issued by UBS
Place, Date: 05.12.05 Luxembourg
▇▇▇▇▇ Finance S.A.
/s/ Philippe Foriel-Destezet
----------------------------
Philippe Foriel-Destezet
▇▇▇▇▇▇ Venture AG
Place, Date: 05.12.05, Luxembourg
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------- -----------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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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.
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SCHEDULE B
PURCHASE PRICE
1. The Purchase Price shall be calculated as follows:
Number of the Shares (12,000,000)
multiplied by
the Share Price of CHF 63.--
equaling to a Purchase Price of CHF 756 million (Swiss Francs seven
hundred and fifty-six million)
2. Payment to be credited by Buyer to Seller on payment date
CHF 756 million
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SCHEDULE C
DRAFT CONFIRMATION LETTER ISSUED BY WHITE & CASE
In reply to our letter dated November 24, 2005, we have been informed on
December 1st, 2005 by the European Commission through its Director ▇▇.
▇▇▇▇▇ ▇▇▇▇▇ (Merger Task Force) that the purchase of 12m shares in Adecco S.A.
(ISIN CH0012138605) (the "Company") by ▇▇▇▇▇▇ Venture AG from ▇▇▇▇▇ S.A. does
not constitute a concentration within the meaning of Art. 3 of the EC Merger
Control Regulation.
Enclosures
1. Letter of White & Case, dated 24 November 2004 to ▇▇. ▇▇▇▇ Drauz
2. Letter of ▇▇. ▇▇▇▇▇ ▇▇▇▇▇
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SCHEDULE D
Attachment: proposed text for UBS confirmation, to be issued with the wording
as below or a wording having economically and legally the same effect
[On the Letterhead of UBS AG]
▇▇▇▇▇▇ Venture AG
c/▇ ▇▇▇▇▇▇ Holding AG
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Transfer of 12m Shares of Adecco S.A.
We hereby confirm that we will - upon receipt of an amount of CHF 756m
irrevocably transfer 12,000,000 (twelve million) ordinary registered shares with
a nominal value of CHF 1.00 each of Adecco S.A. (ISIN CH0012138605) to your bank
account at Deutsche Bank ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ , ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, swift code ▇▇▇▇▇▇▇▇▇▇▇ .IBAN Nummer: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇,
SegaIntersettle No0286466 (Safe custody account).
This confirmation is valid until 9 December 2005, 24 hrs CET.
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Name: Name:
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