Exhibit 99.2
SALE AND PURCHASE AGREEMENT
Between
DEUTSCHE BANK AG
and
STATE STREET CORPORATION
Dated as of November 5, 2002
Page | ||||
ARTICLE I | ||||
DEFINITIONS | ||||
SECTION 1.01. | Certain Defined Terms | 1 | ||
SECTION 1.02. | Definitions | 14 | ||
ARTICLE II | ||||
PURCHASE AND SALE | ||||
SECTION 2.01. | Purchase and Sale of the Shares | 21 | ||
SECTION 2.02. | Purchase and Sale of the Assets | 21 | ||
SECTION 2.03. | Assumption and Exclusion of Liabilities | 24 | ||
SECTION 2.04. | Purchase Price; Allocation of Purchase Price | 26 | ||
SECTION 2.05. | Closing | 27 | ||
SECTION 2.06. | Closing Deliveries by Deutsche Bank | 27 | ||
SECTION 2.07. | Closing Deliveries by the Purchaser | 30 | ||
SECTION 2.08. | Adjustment of Purchase Price | 30 | ||
SECTION 2.09. | Transfer Documentation and Possession | 33 | ||
SECTION 2.10. | Premium Holdback; Payment | 34 | ||
SECTION 2.11. | Alternative Form of Consideration | 42 | ||
SECTION 2.12. | Deferred Closings | 44 | ||
SECTION 2.13. | Fixed Assets | 47 | ||
ARTICLE III | ||||
REPRESENTATIONS AND WARRANTIES OF DEUTSCHE BANK | ||||
SECTION 3.01. | Organization, Authority and Qualification of Deutsche Bank and Certain Affiliates | 47 | ||
SECTION 3.02. | Organization, Authority and Qualification of the DB Entities | 48 | ||
SECTION 3.03. | Capital Stock of the DB Companies; Ownership of the Shares | 49 | ||
SECTION 3.04. | DB Subsidiaries | 49 | ||
SECTION 3.05. | No Conflict | 50 | ||
SECTION 3.06. | Consents and Approvals | 50 | ||
SECTION 3.07. | Financial Information | 50 | ||
SECTION 3.08. | No Undisclosed Liabilities | 51 | ||
SECTION 3.09. | Conduct in the Ordinary Course; Absence of Certain Changes, Events and Conditions | 52 | ||
SECTION 3.10. | Litigation | 55 | ||
SECTION 3.11. | Compliance with Laws | 55 | ||
SECTION 3.12. | Material Contracts | 55 |
SECTION 3.13. | Real Property | 57 | ||
SECTION 3.14. | Assets | 58 | ||
SECTION 3.15. | Employee Benefit Plans; Labor Matters | 59 | ||
SECTION 3.16. | Taxes | 78 | ||
SECTION 3.17. | Regulatory Compliance; Compliance with Laws | 79 | ||
SECTION 3.18. | Insurance | 80 | ||
SECTION 3.19. | Intellectual Property | 80 | ||
SECTION 3.20. | Environmental Matters | 81 | ||
SECTION 3.21. | Client Contracts | 82 | ||
SECTION 3.22. | Brokers | 83 | ||
SECTION 3.23. | Affiliate Transactions | 83 | ||
SECTION 3.24. | Records | 83 | ||
SECTION 3.25. | Broker-Dealer Facilities; Securities Lending | 84 | ||
SECTION 3.26. | Securities Lending/Custody Investment Pools | 84 | ||
SECTION 3.27. | Acquisition of Shares for Investment | 85 | ||
SECTION 3.28. | No Other Representations | 85 | ||
ARTICLE IV | ||||
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER | ||||
SECTION 4.01. | Organization and Authority of the Purchaser | 85 | ||
SECTION 4.02. | No Conflict | 86 | ||
SECTION 4.03. | Governmental Consents and Approvals | 86 | ||
SECTION 4.04. | Investment Purpose | 86 | ||
SECTION 4.05. | Financing | 87 | ||
SECTION 4.06. | Litigation | 87 | ||
SECTION 4.07. | Brokers | 87 | ||
SECTION 4.08. | Regulatory Approvals | 87 | ||
SECTION 4.09. | Parent Shares | 87 | ||
SECTION 4.10. | Purchaser’s Severance Plans | 87 | ||
SECTION 4.11. | No Other Representations | 88 | ||
ARTICLE V | ||||
ADDITIONAL AGREEMENTS | ||||
SECTION 5.01. | Conduct of Business Prior to the Closing | 88 | ||
SECTION 5.02. | Access to Information | 90 | ||
SECTION 5.03. | Confidentiality | 91 | ||
SECTION 5.04. | Regulatory and Other Authorizations; Notices and Consents | 92 | ||
SECTION 5.05. | Investigation | 94 | ||
SECTION 5.06. | Use of Names | 94 | ||
SECTION 5.07. | Non-Solicitation | 94 | ||
SECTION 5.08. | Further Action; Assignment in General | 95 | ||
SECTION 5.09. | Assigned Contracts | 97 |
SECTION 5.10. | Ancillary Agreements | 98 | ||
SECTION 5.11. | Assumption of Responsibilities for Funds and Separate Accounts | 100 | ||
SECTION 5.12. | Overdrafts; Excluding Broker-Dealer Facilities | 101 | ||
SECTION 5.13. | Other Agreements; Notifications | 102 | ||
SECTION 5.14. | Client Contracts; Assignment; Meetings | 102 | ||
SECTION 5.15. | Conversion Plan; Delivery of Custodial Assets; Deposits; Access; Further Assurances | 104 | ||
SECTION 5.16. | Termination of Intra-Group Arrangements | 106 | ||
SECTION 5.17. | Subleases | 106 | ||
SECTION 5.18. | Grant of License | 107 | ||
SECTION 5.19. | Assumed Broker-Dealer Facilities | 108 | ||
SECTION 5.20. | Deutsche Bank Non-Competition/Non-Solicitation | 109 | ||
SECTION 5.21. | Delivery of Closing Revenue Run-Rate Schedule | 112 | ||
SECTION 5.22. | Securities Process Liabilities | 113 | ||
SECTION 5.23. | Referral Fees | 113 | ||
SECTION 5.24. | Replacement of Guaranties | 113 | ||
SECTION 5.25. | Capitalization of DB Entities | 114 | ||
ARTICLE V-A | ||||
SECTION 5A.01 | SEC Reports | 114 | ||
SECTION 5A.02 | Financial Statements | 114 | ||
SECTION 5A.03 | Preparation of Registration Statement; Registration Statement Procedures | 115 | ||
SECTION 5A.04 | Restrictions on Transfer | 118 | ||
SECTION 5A.05 | Indemnification by the Purchaser | 119 | ||
SECTION 5A.06 | Indemnification by Deutsche Bank | 120 | ||
SECTION 5A.07 | Notices of Claims, etc. | 121 | ||
SECTION 5A.08 | Contribution | 121 | ||
ARTICLE VI | ||||
EMPLOYEE MATTERS | ||||
SECTION 6.01. | U.S. Employees | 122 | ||
SECTION 6.02. | Automatic Employees | 127 | ||
SECTION 6.03. | Provisions Specific to UK Employees and UK Pension Schemes | 129 | ||
SECTION 6.04. | Provisions Specific to German Employees; German Benefit Plans | 131 | ||
SECTION 6.05. | Intentionally Omitted | 134 | ||
SECTION 6.06. | Provisions Specific to Luxembourg Employees | 134 | ||
SECTION 6.07. | Provisions Specific to Italian Employees | 135 | ||
SECTION 6.08. | Intentionally Omitted | 136 | ||
SECTION 6.09. | Ireland Employees | 136 | ||
SECTION 6.10. | Switzerland Employees | 137 | ||
SECTION 6.11. | Japan Employees | 138 | ||
SECTION 6.12. | Non-Automatic Employees | 138 | ||
SECTION 6.13. | Specific Benefit Terms for Jersey Transferred Employees | 141 |
SECTION 6.14. | Specific Benefits Terms for Non-Automatic Transferred Employees Who Are Hong Kong Employees | 146 | ||
SECTION 6.15. | Specific Benefit Terms for Transferred Australian Employees | 148 | ||
SECTION 6.16. | Temporarily Retained Employees | 149 | ||
SECTION 6.17. | Covenants Applicable to All Business Employees | 150 | ||
ARTICLE VII | ||||
TAX MATTERS | ||||
SECTION 7.01. | Tax Indemnities | 158 | ||
SECTION 7.02. | Tax Refunds and Tax Benefits | 161 | ||
SECTION 7.03. | Tax Covenants | 162 | ||
SECTION 7.04. | Contests | 162 | ||
SECTION 7.05. | Preparation of Tax Returns | 163 | ||
SECTION 7.06. | Cooperation and Exchange of Information | 164 | ||
SECTION 7.07. | Group Relief | 164 | ||
SECTION 7.08. | Conveyance Taxes | 165 | ||
SECTION 7.09. | Miscellaneous | 167 | ||
SECTION 7.10. | Section 338(h)(10) Election | 168 | ||
ARTICLE VIII | ||||
CONDITIONS TO CLOSING | ||||
SECTION 8.01. | Conditions to Obligations of Deutsche Bank | 169 | ||
SECTION 8.02. | Conditions to Obligations of the Purchaser | 170 | ||
ARTICLE IX | ||||
INDEMNIFICATION | ||||
SECTION 9.01. | Survival of Representations and Warranties; Exclusive Remedies | 171 | ||
SECTION 9.02. | Indemnification | 172 | ||
SECTION 9.03. | Third Party Claims | 173 | ||
SECTION 9.04. | Payments | 174 | ||
SECTION 9.05. | Certain Matters | 175 | ||
ARTICLE X | ||||
TERMINATION AND WAIVER | ||||
SECTION 10.01. | Termination | 175 | ||
SECTION 10.02. | Effect of Termination | 176 | ||
SECTION 10.03. | Waiver | 176 | ||
SECTION 10.04. | Termination with Respect to Deferred Business | 176 |
ARTICLE XI | ||||
GENERAL PROVISIONS | ||||
SECTION 11.01. | Expenses | 177 | ||
SECTION 11.02. | Notices | 177 | ||
SECTION 11.03. | Public Announcements | 178 | ||
SECTION 11.04. | Headings | 178 | ||
SECTION 11.05. | Severability | 178 | ||
SECTION 11.06. | Entire Agreement | 179 | ||
SECTION 11.07. | Assignment | 179 | ||
SECTION 11.08. | No Third Party Beneficiaries | 179 | ||
SECTION 11.09. | Amendment | 179 | ||
SECTION 11.10. | Governing Law; Submission to Arbitration | 179 | ||
SECTION 11.11. | Counterparts | 181 | ||
SECTION 11.12. | Specific Performance | 181 | ||
SECTION 11.13. | Waiver of Jury Trial | 181 |
EXHIBITS | ||
A. | DB Companies | |
B. | Ancillary Revenue Transfer Agreement | |
C. | Servicing Agreement | |
D. | Transition Support Agreement | |
E. | Sub-Lease Agreement Terms | |
F. | Lease Agreement Terms | |
G. | License Agreement | |
H. | License-Back Agreement | |
SCHEDULES | ||
1.1 | Deutsche Bank Knowledge | |
1.2 | Purchaser Knowledge | |
1.3 | Regulatory Agencies | |
1.4 | Required Regulatory Approvals | |
1.5 | Sellers | |
2.04(b) | Allocation Method | |
7.08 | Mechanism for Adjusting the Purchase Price for Irrecoverable Conveyance Taxes |
Term | Location | |
“Accrued Severance Indemnities” | 6.07(b) | |
“Accrued Vacation Days” | 6.17(c) | |
“Additional Indemnity Period” | 6.04(d) | |
“Adjusted Client Revenue” | 2.10 | |
“Adjusted Contract Revenue” | 2.10 | |
“Adjusted Migrated Revenues” | 2.10 | |
“Adjustment Ratio” | 2.10 | |
“Affected Revenue” | 5.07(b) | |
“Aggregate Clawback Reduction” | 2.10 | |
“All Cash Notice” | 2.11(c) | |
“Allocation Dispute Notice” | 2.04(c) | |
“Allocation Method” | 2.04(b) | |
“Alternate Share Number” | 2.11(c) | |
“Alternate Stock Notice” | 2.11(c) | |
“Applicable Clawback Amount” | 2.10 | |
“Approved Scheme” | 6.13(a)(i) | |
“Asset and Liability Statement” | 3.07(b) | |
“Assets Date” | 5.11(a) | |
“Assigned Contracts” | 2.02(a)(x) | |
“Assumed Broker-Dealer Facility” | 5.19(a) | |
“Assumed Broker-Dealer Notice” | 5.19(a) | |
“Assumed Liabilities” | 2.03(a) | |
“Australian Annual Leave Amount” | 6.15(d) | |
“Australian Long Service Leave Amount” | 6.15(c) | |
“Australian Employee” | 3.15(j)(i) | |
“Austrian Employee” | 3.15(j)(i) | |
“Automatic Employee” | 6.02(a) | |
“Automatic Transferring Employees” | 6.02(a) | |
“Base Measurement Period” | 2.10 | |
“Base Non-Transferred DeAM Revenue” | 2.10 | |
“Base Third Party Revenue” | 2.10 | |
“Base Total Revenue” | 2.10 | |
“Base Transferred DeAM Revenues” | 2.10 | |
“Basket Hedge” | 5A.04(a) | |
“Blackout Period” | 5A.03(b) | |
“Business Credit Policy” | 5.12(a) | |
“Business Employee” | 3.15(a) | |
“Business Interim Revenue and Cost Statement” | 3.07(b) | |
“Business Revenue and Cost Statement” | 3.07(b) | |
“Cash Amount” | 2.11(a) | |
“Cash Only Notice” | 2.11(d) | |
“Cash Payment Notice” | 2.11(d) |
Term | Location | |
“Category 1 Automatic Employees” | 6.02(a) | |
“Category 1 Automatic Transferring Employees” | 6.02(a) | |
“Category 2 Automatic Employees” | 6.02(a) | |
“Category 2 Automatic Transferring Employee” | 6.02(a) | |
“Cayman Employee” | 3.15(j)(i) | |
“Claim” | 9.03(a) | |
“Claimant Company” | 7.07 | |
“Clawback Percentage” | 2.10 | |
“Closing” | 2.05 | |
“Closing Date” | 2.05 | |
“Closing Date Cash Payment” | 2.04(a) | |
“Closing Measurement Period” | 2.10 | |
“Closing Notice” | 2.11(e) | |
“Closing Revenue Run-Rate Schedule” | 5.21 | |
“Closing Statement of Net Assets” | 2.08(b) | |
“Closing Total Revenue” | 2.10 | |
“COBRA” | 6.01(e)(ii) | |
“Collateral Funds” | 3.26(a) | |
“Consenting Member” | 6.14(a)(i) | |
“Contest” | 7.04(b) | |
“Controlling Party” | 7.04(c) | |
“Covered Assets” | 3.26(a) | |
“Damages” | 9.02(a) | |
“Data Protection Laws” | 3.15(a) | |
“DB Affiliate Party” | 3.01 | |
“DB Companies” | Recitals | |
“DB Companies Balance Sheets” | 3.07(a) | |
“DB Companies Income Statements” | 3.07(a) | |
“DB Companies Interim Income Statements” | 3.07(a) | |
“DB Company” | Recitals | |
“DB Company Shares” | Recitals | |
“DB Entity Affected Contracts” | 5.08(b) | |
“DB Equity Awards” | 6.17(f) | |
“DB Subsidiary” | 3.04(a) | |
“DBGSL” | 6.03(h) | |
“De Minimis Amount” | 9.02(a) | |
“DeAM Client” | 2.10 | |
“DeAM Party” | 2.10 | |
“DeAM Payments” | 2.10 | |
“Deductible Amount” | 9.02(a) | |
“Deferred Business” | 2.12(a) | |
“Deferred Closing” | 2.12(a) | |
“Deferred Closing Amount” | 2.12(a) | |
“Deferred Closing Date” | 2.12(a) | |
“Deferred Closing Governmental Approvals” | 2.12(a) |
Term | Location | |
“Deferred Closing Jurisdiction” | 2.12(a) | |
“Deferred Revenues” | 2.03(a)(v) | |
“Deutsche Bank” | Preamble | |
“Deutsche Bank Actuary” | 6.04(b) | |
“Deutsche Bank Advances” | 5.12(a) | |
“Deutsche Bank Indemnified Parties” | 9.02(b) | |
“Deutsche Bank Licensors” | 5.18(a) | |
“Deutsche Bank Luxembourg Actuary” | 6.06(b) | |
“Deutsche Bank Regulatory Agreement” | 3.17(b) | |
“Deutsche Bank U.S. Benefit Plan” | 3.15(b)(i) | |
“Deutsche Bank U.S. Savings Plans” | 6.01(h) | |
“Deutsche Bank’s Exposures” | 5.12(a) | |
“Disputes” | 11.10(b) | |
“Effectiveness Period” | 5A.03(a) | |
“18-Month Measurement Period” | 2.10 | |
“Elections” | 7.10(a) | |
“Employing Company” | 6.02(a) | |
“Employment Losses” | 6.02(b)(i) | |
“ERISA” | 3.15(b)(i) | |
“ERISA Affiliates” | 3.15(b)(viii) | |
“Excluded Assets” | 2.02(b) | |
“Excluded Contract” | 2.10 | |
“Excluded Liabilities” | 2.03(b) | |
“Excluded Revenue” | 2.10 | |
“Expatriate Business Employee” | 6.17(i) | |
“FAA” | 11.10(a) | |
“Fee Revenues” | 2.10 | |
“Final Salary Scheme” | 6.13(a)(viii) | |
“First Year Clawback” | 2.10 | |
“First Year Measurement Period” | 2.10 | |
“First Year Payment” | 2.10 | |
“First Year Revenue” | 2.10 | |
“First Year Transferred DeAM Revenues” | 2.10 | |
“Fixed Assets” | 2.02(a)(iii) | |
“Former Jersey Employees” | 3.15(g)(iv) | |
“FSA” | 3.17(c) | |
“Funds” | 3.26(a) | |
“German Benefit Plan” | 3.15(c)(iii) | |
“German Employee” | 3.15(c)(i) | |
“German Pension Amount” | 6.04(b) | |
“German Pension Arrangements” | 3.15(c)(iii) | |
“Governmental Approvals” | 5.04(a) | |
“GTB” | 6.17(d)(i) | |
“GTO” | 6.17(d)(i) | |
“HR Representatives” | 6.04(e) |
Term | Location | |
“Holdback Amount” | 2.10 | |
“Holdback Percentage” | 2.10 | |
“Hong Kong Employee” | 3.15(j)(i) | |
“ICC” | 11.10(b) | |
“Incidental Use” | 5.18(b) | |
“Indemnitee” | 9.03(a) | |
“Indemnitor” | 9.03(a) | |
“Independent Accounting Firm” | 2.08(c)(ii) | |
“IPA” | 3.15(e)(ix) | |
“Ireland Benefit Schemes” | 3.15(e)(i) | |
“Ireland Employee” | 3.15(e)(i) | |
“Ireland Employee Share Scheme” | 6.09(d) | |
“Ireland Pension Schemes” | 3.15(e)(viii) | |
“Italian Employee” | 3.15(f)(i) | |
“Italy Benefit Plan” | 3.15(f)(i) | |
“Japan Benefit Plan” | 3.15(i)(i) | |
“Japan Employee” | 3.15(i)(i) | |
“Japan Transferred Employee” | 6.11(b)(ii) | |
“Jersey Benefit Plan” | 3.15(g)(i) | |
“Jersey Employee” | 3.15(g)(i) | |
“Jersey Schemes” | 3.15(g)(iii) | |
“Jersey Third Actuary” | 6.13(a)(ix) | |
“JTE Transfer” | 6.13(a)(x)(A) | |
“Last Look Notice” | 2.11(d) | |
“Lease Agreements” | 5.17(a)(i) | |
“License Agreement” | 5.18(a) | |
“License-Back Agreement” | 5.18(b) | |
“Local Servicing Agreement” | 5.10(a) | |
“Local Transfer Documents” | 2.09(a) | |
“Local Transition Support Agreement” | 5.10(b) | |
“Luxembourg Employee” | 3.15(j)(i) | |
“Luxembourg Pension Amount” | 6.06(b) | |
“Luxembourg Third Actuary” | 6.06(b) | |
“Mark-to-Market Notice” | 2.11(c) | |
“Market Price” | 2.11(c) | |
“Material Contracts” | 3.12(a) | |
“Materially Burdensome Effect” | 5.04(b) | |
“Maximum Share Number” | 2.11(a) | |
“Member Transfer Date” | 6.13(a)(iv)(A) | |
“Migrated Revenues” | 2.10 | |
“Minimum MPF Benefit” | 6.14(a)(ii) | |
“Money Purchase Scheme” | 6.13(a)(vi) | |
“MPFSO” | 6.14(a)(iii) | |
“Multiemployer Plan” | 3.15(b)(viii) | |
“Multiple Employer Plan” | 3.15(b)(viii) |
Term | Location | |
“Necessary Permits” | 3.11 | |
“Netherlands Employee” | 3.15(j)(i) | |
“New DeAM Revenues” | 2.10 | |
“New York Courts” | 11.10(i) | |
“Nominee Company” | 5.08(e) | |
“Non-Automatic Employee” | 6.12(a)(i) | |
“Non-Automatic Transferred Employee” | 6.12(a)(ii) | |
“Non-Consenting Client” | 5.20(e) | |
“Non-controlling Party” | 7.04(c) | |
“Non-Transferred DeAM Contract” | 2.10 | |
“Non-Transferred DeAM Revenue” | 2.10 | |
“Non-Transferring Ireland Employees” | 6.09(a) | |
“Novation” | 5.11(c)(i) | |
“Objecting German Employees” | 6.04(e) | |
“OFAC” | 3.21(h) | |
“ORSO” | 6.14(a)(iv) | |
“Other Assets” | 2.02(a)(xii) | |
“Other Benefit Plan” | 3.15(j)(i) | |
“Other Employee” | 3.15(j)(i) | |
“Other Liabilities” | 2.03(a)(vii) | |
“Other Pension Plan” | 3.15(j)(iii) | |
“Payment Date” | 6.13(a)(x)(A) | |
“Permitted Business” | 5.20(e) | |
“Post MPF Member” | 6.14(a)(v) | |
“Preliminary Closing Statement of Net Assets” | 2.08(a) | |
“Pre-Paid Fees and Expenses” | 2.02(a)(xi) | |
“Product Group” | 2.10 | |
“Proposed Allocation” | 2.04(c) | |
“Purchase Price” | 2.04(a) | |
“Purchase Price Shares” | 4.09(b) | |
“Purchased Assets” | 2.02(a) | |
“Purchased Subsidiary Shares” | 2.01 | |
“Purchaser” | Preamble | |
“Purchaser Actuary” | 6.04(b) | |
“Purchaser Common Stock” | 2.11(a) | |
“Purchaser Credit Policy” | 5.12(a) | |
“Purchaser’s Exposures” | 5.12(a) | |
“Purchaser’s Flex Plans” | 6.01(f) | |
“Purchaser Historical Financial Statements” | 5A.02 | |
“Purchaser Indemnified Parties” | 9.02(a) | |
“Purchaser’s Jersey Actuary” | 6.13(a)(viii) | |
“Purchaser Luxembourg Actuary” | 6.06(b) | |
“Purchaser’s MPF Scheme” | 6.14(a)(vi) | |
“Purchaser’s ORSO Scheme” | 6.14(a)(vii) | |
“Purchaser Reports” | 5A.01 |
Term | Location | |
“Purchasing Subsidiary” | 2.09(a) | |
“Purchaser’s Scheme” | 6.13(a)(v)(A) | |
“Purchaser U.S. Benefit Plan” | 6.01(c) | |
“Purchaser’s U.S. Savings Plans” | 6.01(h) | |
“Quarterly Transferred DeAM Revenue” | 2.10 | |
“Ratio” | 6.17(d)(i) | |
“Recovered Product Revenue” | 2.10 | |
“Referral Revenues” | 2.10 | |
“Referred Client” | 2.10 | |
“Region” | 2.10 | |
“Registered Transferred IP” | 3.19 | |
“Registration Statement” | 5A.03(a) | |
“Regulatory Action” | 8.02(g) | |
“Related Ireland Benefit Schemes” | 3.15(e)(viii) | |
“Relevant Employees” | 6.03(h) | |
“Restricted Business” | 5.20(e) | |
“Restricted Period” | 5A.04(a) | |
“Restructuring Event” | 2.10 | |
“Restructuring Revenues” | 2.10 | |
“Retained Contract” | 2.10 | |
“Retained Contracts Payment” | 2.10 | |
“Retained Contracts Revenues” | 2.10 | |
“Retained Names and Marks” | 5.06 | |
“Retained VAT Records” | 7.08(b)(ii) | |
“Revenue Multiple” | 2.10 | |
“RFP” | 5.07(a) | |
“RFP Contract” | 2.10 | |
“Rules” | 11.10(b) | |
“SDN” | 3.21(h) | |
“SDN Contracts” | 3.21(h) | |
“SDN List” | 3.21(h) | |
“Section 338 Forms” | 7.10(b) | |
“Securities Act” | 2.11(a) | |
“Sellers” | Recitals | |
“Sellers’ Flex Plans” | 6.01(f) | |
“Seller’s MPF Scheme” | 6.14(a)(viii) | |
“Sellers’ ORSO Scheme” | 6.14(a)(ix) | |
“Separate Accounts” | 3.26(a) | |
“Services Agreement” | 6.03(h) | |
“Share Number” | 2.11(a) | |
“Share Price” | 2.11(a) | |
“Shares” | 2.01 | |
“Singapore Benefit Plan” | 3.15(h)(i) | |
“Singapore Employee” | 3.15(h)(i) | |
“Stable NAV Fund” | 3.26(a) |
Term | Location | |
“Stakeholder Employees” | 6.03(a) | |
“Stock Election” | 2.11(a) | |
“Stock Notice” | 2.11(a) | |
“Stub Filing Obligation” | 7.03(b) | |
“Stub Period Withholding Obligation” | 7.03(b) | |
“Sub-Agency Contract” | 3.12(b) | |
“Sub-Lease Agreements” | 5.17 | |
“Subsequent Purchaser Financial Statements” | 5A.02 | |
“Surrendering Company” | 7.07 | |
“Sweep Funds” | 3.26(a) | |
“Switzerland Employee” | 3.15(j)(i) | |
“Tax Claim” | 3.16(a) | |
“Temporarily Retained Employee” | 3.15(k)(i) | |
“TFR” | 6.07(b) | |
“Terminated Employees” | 6.17(a)(ii)(B) | |
“Terminated Purchaser Employee” | 6.17(a)(ii)(B) | |
“Terminated Revenues” | 2.10 | |
“Terminated Transferred Employees” | 6.17(a)(ii)(B) | |
“Third Actuary” | 6.04(b) | |
“Transfer” | 5A.04 | |
“Transfer Amount” | 6.14(a)(x) | |
“Transfer Value” | 6.13(a)(viii) | |
“Transferred Account Balances” | 6.01(f) | |
“Transferred DeAM Contract” | 2.10 | |
“Transferring Jersey Employees” | 6.13(a)(i) | |
“Transferring Parties” | 6.01(f) | |
“TRE Transfer Date” | 6.16(a) | |
“UK Benefit Plan” | 3.15(d)(ii) | |
“UK Employee” | 3.15(d)(i) | |
“UK Pension Plan” | 3.15(d)(v) | |
“UK Scheme” | 6.13(a)(i) | |
“Undisclosed Employee” | 6.02(b)(iv) | |
“U.S. Current Employee” | 6.01(a)(i) | |
“U.S. DB Entity Employee” | 6.01(a)(ii) | |
“U.S. Employee” | 3.15(b)(i) | |
“U.S. Transferred Employee” | 6.01(a)(iii) | |
“Vendor’s Jersey Actuary” | 6.13(a)(viii) | |
“Verified Securities Processing Liabilities” | 5.22 | |
“WARN Act” | 3.15(b)(xi) | |
“WM Company” | 6.02(a) | |
“WM Employees” | 6.02(a) | |
“Workers’ Compensation Claim” | 6.01(e)(i) | |
“2002 Bonus” | 6.17(d)(i) | |
“2003 Prorated Bonus” | 6.17(d)(ii) |
DEUTSCHE BANK AG | ||
By: | /s/ Juergen Fitschen | |
Name: Juergen Fitschen | ||
Title: Member of the Group Executive Committee | ||
By: | /s/ Axel Wieandt | |
Name: Axel Wieandt | ||
Title: Head Corporate Development | ||
STATE STREET CORPORATION | ||
By: | /s/ Ronald E. Logue | |
Name: Ronald E. Logue | ||
Title: President and Chief Operating Officer |
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered by their respective officers hereunto duly authorized as of the date first above written.
DEUTSCHE BANK AG
By:/s/ FRANK KRINGS
Name: Frank Krings
Title: Managing Director
DEUTSCHE BANK AG
By:/s/ PHILIPP VON GIRSEWALD
Name: Philipp von Girsewald
Title: Director
STATE STREET CORPORATION
By:/s/ JAMES C. CACCIVIO
Name: James C. Caccivio
Title: Senior Vice President
[Signature Page to Amendment No.1 to Sale and Purchase Agreement]
AMENDMENT NO.2 TO
SALE AND PURCHASE AGREEMENT
This AMENDMENT NO. 2 is dated as of January 31, 2003 (this “Amendment”) and amends that certain SALE AND PURCHASE AGREEMENT, dated as of November 5, 2002, by and between DEUTSCHE BANK AG, a German corporation (“Deutsche Bank”), and STATE STREET CORPORATION, a corporation organized under the laws of the Commonwealth of Massachusetts (the “Purchaser”), as amended by Amendment No. 1 to Sale and Purchase Agreement, dated as of January 13, 2003 (the “SPA”). Capitalized terms used herein shall have the meanings ascribed to them in the SPA.
WHEREAS, Deutsche Bank and the Purchaser desire to effect certain amendments to the SPA, and Section 11.09 of the SPA permits the SPA to be amended by a writing signed by Deutsche Bank and the Purchaser.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto agree as follows:
1. Changes to the list of EXHIBITS immediately following the Table of Contents.
(a) The list of EXHIBITS immediately following the Table of Contents contained in the SPA is hereby amended by replacing the items identified as Exhibit E and Exhibit F with the following:
“E. [Intentionally Omitted]
F. [Intentionally Omitted]”
(b). The list of EXHIBITS immediately following the Table of Contents contained in the SPA is hereby amended by adding the following at the end thereof:
“I. Master Participation Agreement
J. Form of Control Agreement”
2. Changes to Section 1.01 (“Certain Defined Terms”).
(a) The definition of “Accounts Payable” is hereby replaced in its entirety with the following:
““Accounts Payable” means any and all accounts payable and any amounts payable to third parties arising from the conduct of the Business on or prior to the Closing Date.”
(b) The definition of “Business” is hereby amended to delete the struck text and add the bold underlined text as indicated below:
““Business” means the provision by Deutsche Bank, the DB Entities and the Sellers (i) any place in the world of global custody services, master trust/master custody services, benefit payment services, master trust accounting services, trustee accounting and administration services, offshore fund administration and custody services (including, without limitation, trust and depositary services, fund accounting services, fund administration services, trustee and domiciliary services, transfer agency services and management company services), fund administration and accounting services (including, without limitation, custodial services, trusteeship services, depositary services, pricing services and depotbank services), performance measurement services and securities lending services to the extent generally conducted by Deutsche Bank’s Global Portfolio Management business as of the date hereof, (ii) of broker/dealer clearing services in the United States of America, (iii) of local custody services in the United States of America and the United Kingdom, and (iv) of Agent Fund Trading Services; provided, that the “Business” shall not include: (A) the provision of any services (1) within the scope of (i) and (iii) above, for issuers of debt, equity, asset-backed and other securities under various indentures and agreements, and other services provided in the ordinary course of the CTAS Business, (2) within the scope of (i) and (iii) above through separate accounts to private clients for the ultimate benefit (including through entities or trusts) of individuals, families, charities or small or medium-size businesses or to employee plans for small and medium-size businesses or by Deutsche Investment Management Americas Inc. (formerly Zurich Scudder Investments, Inc.) and its wholly-owned Subsidiaries for its U.S. proprietary investment products, (3) within the scope of (i) above by DB Trust Bank Japan ancillary to its provision of investment management services, other than global custody services or (4) within the scope of (i) above by Deutsche Bank SAE or Deutsche Bank (Swiss) AG ancillary to the provision of investment management services; (B) the provision in Poland, the Czech Republic, India and Indonesia of depotbank services in respect of investment products, substantially all of the holdings of which consist of securities of issuers domiciled in the respective countries; (C) the provision in Europe (other than the United Kingdom and the Republic of Ireland) and the Channel Islands to individuals and small and medium-sized businesses of customary ancillary custody services in respect of holdings of global securities; (D) the conduct by the european transaction bank AG of the ETB Business; (E) the provision of services otherwise within the definition of “Business” by Deutsche Asset Management (other than by Sellers or DB Entities) in the ordinary course of business consistent with past practices to entities, funds or accounts advised by Deutsche Asset Management; and(F) the operation of the BT Alex Brown correspondent clearing business consistent with past practice; and (G) the provision of trustee accounting and administration services to hedge funds and other special purpose vehicles by the corporate services group of the CTAS Business managed from the Channel Islands consistent with past practice. In construing the scope of the term “Business”, it is the intention of the parties that
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the Business shall encompass only the types and scope of activities of Deutsche Bank, the DB Companies and the Sellers conducted on the date hereof in Deutsche Bank’s Global Securities Services division. References in this Agreement to the “Business” in respect of time periods after the Closing refer to the Business conducted by the Purchaser and its Affiliates, including through Deutsche Bank and its Affiliates pursuant to and as contemplated by the Ancillary Agreements.”
(c) The defined term “Excluded Broker-Dealer Facilities” is hereby replaced in its entirety with the following:
““Excluded Broker Dealer Facilities” means (a) Broker-Dealer Facilities and (b) intra-day creditor loan facilities entered into in connection with the provision of underwriting activities of Clients.”
(d) The defined term “Premium” is hereby replaced in its entirety with the following:
““Premium” means $1,478,606,000.”
(e) The defined term “Valuation Principles” is hereby amended to delete the struck text and add the bold underlined text as indicated below:
““Valuation Principles” means the following: (a) all tangible assets will be reflected at a book value of cost less accumulated depreciation but shall not exceed an aggregate of €60 million and those reflected shall include only those assets which are reasonably physically transferable with the Business, (b) goodwill and capitalized software internally developed for the Business shall not be reflected for value, (c) prepaid assets shall be prorated on an accrual basis as of the Closing Date to allocate the same to the period of service to which they relate, (d) Liabilities will reflect a reserve of €15 million for Securities Processing Liabilities, (e) deferred revenues shall be prorated on an accrual basis as of the Closing Date to allocate the same to the period of service to which they relate, and (f) no Assets or Liabilities shall be reflected in respect of obligations released and discharged or to be released and discharged, or arrangements, commitments, contracts and understandings terminated or to be terminated, in each case, pursuant to Section 5.16.”
3. Changes to Section 1.02 (“Definitions”). The table of definitions contained in Section 1.02 of the SPA is hereby amended
(a) by adding the following entries in their respective correct alphabetical location:
“Assignment Date” | 5.19 | (c) | |
“Chancery Lane Lease” | 5.17 | (c) | |
“Covered Broker-Dealer Facility” | 5.19 | (c) | |
“Master Participation Agreement” | 5.19 | (b); |
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and
(b) by replacing the entry in the Location column of such table corresponding to the defined term “Assumed Broker-Dealer Facility” with “5.19(c)”.
4. Changes to Section 2.03 (“Assumption and Exclusion of Liabilities”).
(a) Section 2.03(a)(vi) is hereby replaced in its entirety with the following:
“(vi) [Intentionally omitted]”
(b) Section 2.03(b)(ix) is hereby replaced in its entirety with the following:
“(ix) All Liabilities of Deutsche Bank and the Sellers for accrued expenses as of the Closing Date”
5. Changes to Section 2.06 (“Closing Deliveries by Deutsche Bank”). (a) Section 2.06(x) of the SPA is hereby replaced in its entirety with the following:
“(x) an executed counterpart of the Master Participation Agreement;”
(b) Section 2.06(xviii) of the SPA is hereby replaced in its entirety with the following:
“(xviii) where relevant, other than Germany, and subject to the requirements of Section 7.08, an appropriate and valid VAT invoice from Deutsche Bank and each relevant Seller in respect of any payment to be made for any supply made or deemed to be made to the Purchaser or any Purchasing Subsidiary pursuant to this Agreement.”
6. Changes to Section 2.07 (“Closing Deliveries by the Purchaser”).
(a) Section 2.07(g) of the SPA is hereby replaced in its entirety with the following:
“(g) the certificates and other documents required to be delivered pursuant to Section 8.01; and”
(b) Section 2.07 of the SPA is hereby further amended by adding the following clause (h) at the end thereof:
“(h) an executed counterpart of the Master Participation Agreement.”
7. Changes to Section 2.10.
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(a) Section 2.10(g) is replaced in its entirety with the following new Section 2.10(g):
“From the date hereof through the fourth anniversary of the Closing Date, each of Deutsche Bank and the Purchaser shall promptly, and in any case within five (5) Business Days, notify the other party of (i) any action by a Governmental Authority (and shall provide a copy of any relevant documentation relating thereto) that has become final and nonappealable or that the parties reasonably agree should no longer be pursued and that prohibits the transfer to the Purchaser of a Transferred DeAM Contract, and (ii) the occurrence of any Consent Event with respect to any Transferred DeAM Contract. At the time that such notice is given (if notice is given by Deutsche Bank), or within ten (10) Business Days after such notice is given (if notice is given by the Purchaser), Deutsche Bank shall pay to the Purchaser an amount in cash equal to the Applicable Clawback Amount in respect of such contract. Within ten (10) Business Days following the fourth anniversary of the Closing Date, Deutsche Bank shall pay to the Purchaser an amount in cash equal to the aggregate Applicable Clawback Amounts for those Transferred DeAM Contracts (other than Transferred DeAM Contracts for which, as of such fourth anniversary, a clawback payment has been paid pursuant to this Section 2.10(g)) for which any necessary regulatory approvals for the transfer of such contracts to the Purchaser have not been obtained, or which transfer is otherwise unlawful. With respect to any Transferred DeAM Contract to which clause (ii) above applies, within ten (10) Business Days following the occurrence of the relevant Consent Event, Deutsche Bank shall pay to the Purchaser an amount in cash equal to the aggregate Applicable Clawback Amounts for such Transferred DeAM Contract (other than Transferred DeAM Contracts for which, as of the date of such Consent Event, a clawback payment has been paid pursuant to this Section 2.10(g)). The amount of any payment made pursuant to this Section 2.10(g) shall be treated as an adjustment to the Purchase Price for the purposes of this Agreement. For purposes of this Section 2.10(g) “Consent Event” means, with respect to any Transferred DeAM Contract, the earliest to occur of (i) the termination of such Transferred DeAM Contract pursuant to Section 12.2(a)(i)(A) of the Servicing Agreement or any corresponding section in any Local Servicing Agreement, and (ii) the termination of such Transferred DeAM Contract by the applicable third party prior to the receipt from such third party of consent to such Transferred DeAM Contract.”
(b) The definition of “Base Non-Transferred DeAM Revenues” in Section 2.10(h) is replaced in its entirety with the following definition:
“Base Non-Transferred DeAM Revenue” means an amount equal to the product of (a) the aggregate annualized Fee Revenues accrued by Deutsche Bank, a Seller or a DB Entity during the Base Measurement Period in respect of contracts that are Non-Transferred DeAM Contracts, other than Non-Transferred DeAM Contracts in respect of a Deferred Business, as of Closing Date, multiplied by (b) the Adjustment Ratio.
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(c) The definition of “Non-Transferred DeAM Contract” in Section 2.10(h) is replaced in its entirety with the following definition:
“Non-Transferred DeAM Contract” means a Client Contract (or an extension, replacement or renewal thereof), the Fee Revenues from which have been included in the calculation of Base Total Revenue, and where a Client counterparty is a DeAM Client or a DeAM Party, and that, as of the second Business Day prior to the referenced date (or, in the event that the referenced date is the Closing Date, as of the Closing Date), has not been replaced by a Services Agreement, as defined in the DeAM Agreement entered into pursuant to, and in accordance with the terms of, the DeAM Agreement.”
8. Changes to Section 2.12 (“Deferred Closings”).
(a) Section 2.12(d) is amended by inserting the following text at the end of such sub-section:
“(v) There shall be no Non-Transferred DeAM Contracts with respect to the applicable Deferred Business on the Deferred Closing Date.”
(b) Section 2.12(e) is amended by inserting the following text to the end of such Section:
“Notwithstanding anything to the foregoing to the contrary, in a Deferred Closing the Purchaser shall not have any obligation to pay that portion of the applicable Deferred Closing Amount that is attributable to revenues accrued by the Business during the Closing Measurement Period in respect of Client Contracts that are Non-Transferred DeAM Contracts as of the applicable Deferred Closing Date. The portion of the Deferred Closing Amount attributable to such Non-Transferred DeAM Contracts shall be released in a manner consistent with the provisions of Section 2.10(f).”
9. Changes to Section 3.15 (“Employee Benefit Plans; Labor Matters”). Section 3.15(a) is hereby amended by adding the following at the end thereof:
“Notwithstanding anything contained herein to the contrary, the Deleted Business Employees (as defined in Section 3.15(a) of the Seller Disclosure Schedule as amended by this Amendment) shall not be considered to be “Business Employees” or “Transferred Employees” for any purpose of the Agreement.”
10. Changes to Section 5.08 (“Further Action; Assignment in General”).
(a) Section 5.08(c) of the SPA is hereby replaced in its entirety with the following:
“(c) Subject to and in accordance with the terms of any applicable Ancillary Agreements, if a consent or approval is required by any third party to any of the Purchased Assets and is not obtained at or before the Closing or if an attempted
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transfer, conveyance or assignment is ineffective or with respect to any DB Entity Affected Contract or other contract to which a DB Entity is a party that automatically terminates upon a change in control of the applicable DB Entity or its parent DB Entity or that by its terms permits the counterparty to terminate such DB Entity Affected Contract upon such a change in control and that is so terminated, Deutsche Bank shall, and shall cause each Seller to, cooperate with the Purchaser in establishing commercially reasonable alternative arrangements requested by the Purchaser (including for Deutsche Bank to, or to cause the relevant Seller to, transfer, convey or assign such Purchased Asset to the Purchaser or a Purchasing Subsidiary and to continue to use all reasonable efforts to obtain any necessary consent or approval of an attempted transfer, conveyance or assignment) that provide to the Purchaser and its Affiliates the benefits of such Purchased Assets and the burden of the related Assumed Liabilities or the benefits and burdens of the DB Entity Affected Contract, as the case may be;provided, that (i) any additional costs or expenses incurred in connection with the implementation of such alternative arrangements, including any costs and expenses of obtaining any consent (including any increased payments under the relevant agreement or contract), shall be borne by Deutsche Bank, (ii) the Purchaser shall not communicate with any party to such arrangement (other than Deutsche Bank) with respect to such arrangement prior to its being put in place, and (iii) any costs or expenses (including any increased payment under the relevant agreement or contract during the original term) incurred in connection with renewing, extending or modifying, in each case at the Purchaser’s request, such arrangement shall be for the account of the Purchaser. In the event Deutsche Bank has not, as of the Closing, obtained any third party consents required for an attempted transfer, conveyance or assignment, Deutsche Bank shall indemnify and hold the Purchaser and its Affiliates (including the DB Entities) harmless from and against any Damages suffered by such Persons related to or arising out of such attempted transfer, conveyance or assignment.”
(b) Section 5.08(d) of the SPA is hereby replaced in its entirety with the following:
“(d) In the event that any time hereafter there shall be identified any item of Intellectual Property used or held for use exclusively in the Business prior to the Closing that shall not have been included in the Transferred Intellectual Property or the Transferred IP Licenses or is not otherwise owned by a DB Entity or licensed to the Purchaser pursuant to the License Agreement, in the event such Intellectual Property (i) is Deutsche Bank Intellectual Property, Deutsche Bank shall, or shall cause its appropriate Affiliate to, forthwith take such action as is necessary transfer such Intellectual Property to the Purchaser or the applicable Purchasing Subsidiary at the Closing (or, if later identified, promptly thereafter) or (ii) is a Deutsche Bank IP License, such as the Deutsche Bank IP Licenses listed on Schedule 5.08(d) of the Seller Disclosure Schedule, Deutsche Bank shall cooperate with the Purchaser in establishing commercially reasonable alternative arrangements (including for Deutsche Bank to, or to cause the relevant Seller to, provide to the Purchaser and the Purchasing Subsidiaries access to the Intellectual
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Property subject to such Deutsche Bank IP License through the Transition Support Agreement for a period following the Closing not to exceed 60 days from the time such Deutsche Bank IP License is provided to the Purchaser and, if Purchaser requests before such time period elapses, to transfer, convey or assign such Deutsche Bank IP License to the Purchaser or the relevant Purchasing Subsidiary,provided,however, the Purchaser shall reimburse Deutsche Bank for all costs and expenses associated with providing such Intellectual Property through the Transition Support Agreement; in the event Purchaser does not request Deutsche Bank to transfer, convey or assign such Deutsche Bank IP License to the Purchaser or the relevant Purchasing Subsidiary before such time period elapses, then Deutsche Bank shall have no further obligation to support such Deutsche Bank IP License under the Transition Support Agreement) requested by the Purchaser that provide to the Purchaser the right to use such Intellectual Property in its operation of the Business and its corresponding businesses following the Closing;provided, that (A) any additional costs or expenses incurred in connection with the implementation of such alternative arrangements, including any costs and expenses of obtaining any consent (including any increased payments under the relevant agreement or contract), shall be borne by Deutsche Bank, (B) the Purchaser shall not communicate with any party to such arrangement (other than Deutsche Bank) with respect to such arrangement prior to its being put in place, and (C) any costs or expenses incurred in connection with renewing, extending or modifying, in each case at the Purchaser’s request, such arrangement shall be for the account of the Purchaser. In the event Deutsche Bank has not, as of the Closing, obtained any third party consents required for any attempted transfer, conveyance or assignment or other commercially reasonable alternatives requested by the Purchaser, Deutsche Bank shall indemnify and hold the Purchaser and its Affiliates (including the DB Entities) harmless from and against any Damages suffered by such Persons related to or arising out of such attempted transfer, conveyance assignment or alternatives.”
(c) The text beginning from the first word of Section 5.08(f) and continuing through the first semi-colon in Section 5.08(f) is hereby replaced in its entirety with the following:
“In the event any consent or approval of any lessor or other third party required with respect to any Sub-Lease Agreement contemplated by Section 5.17 (except with respect to the Sub-Lease Agreements relating to the premises located at the second and third floors of Guild House, Guild Street, Dublin 1) is not obtained prior to the Closing, in each case the facility to which such consent or approval relates shall, at the Purchaser’s election, be included in the Facilities to be provided to the Serviced Parties pursuant to Section 2.2 of the Transition Support Agreement and the Service Providers shall provide the Other Office Services in respect of each such facility in accordance with Section 2.2 of the Transition Support Agreement”
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11. Changes to Section 5.12 (“Overdrafts; Excluding Broker-Dealer Facilities”).
(a) The second sentence of Section 5.12(a) is hereby replaced in its entirety by the following:
“Prior to the Closing Date, the Purchaser and Deutsche Bank shall agree on a credit policy to be required by the Purchaser on and after the Closing Date (the credit policy, as so agreed by the Parties, the “Purchaser Credit Policy”).”
(b) The first sentence of Section 5.12(b) is hereby replaced in its entirety by the following:
“After the Closing, the Purchaser Credit Policy shall be subject to (i) cancellation at the direction of the Purchaser upon reasonable prior notice in writing and (ii) such amendments as may be requested, in writing, from time to time by the Purchaser and consented to, in writing, by Deutsche Bank, such consent not to be unreasonably withheld.”
12. Changes to Section 5.16 (“Termination of Intra-Group Arrangements; Sub-Agency Agreements”). Section 5.16 of the SPA is hereby replaced in its entirety with the following:
“Section 5.16 Termination of Intra-Group Arrangements. Except (a) as set forth on Section 5.16 of the Seller Disclosure Schedule, (b) as otherwise contemplated by this Agreement or the Ancillary Agreements, (c) in respect of Client Contracts and as set forth in Section 5.11, and (d) for the contracts and agreements identified under the headings “Subcustodial Agreements,” “Subagency Contracts,” and “Clearing Agency Contracts” in Section 3.12(b) of the Seller Disclosure Schedule, Deutsche Bank shall, and shall cause its Affiliates to, immediately prior to the Closing, execute and deliver such releases, termination agreements and discharges, in form and substance mutually satisfactory to Deutsche Bank and the Purchaser, as are necessary to (i) release and discharge Deutsche Bank and such Affiliates (other than the DB Entities) from any and all obligations owed (x) to the DB Entities or (y) in connection with the Business, to Deutsche Bank or any of its Affiliates, (ii) release and discharge the DB Entities from any and all obligations owed to Deutsche Bank or any Affiliate thereof (other than the DB Entities) and (iii) terminate all arrangements, commitments, contracts and understandings among Deutsche Bank and any Affiliate thereof, which would, absent such termination, constitute an Asset, an Assumed Liability or a liability of a DB Entity. Under no circumstances shall the Purchaser or any of its Affiliates be obligated to obtain any services from Deutsche Bank or any of Affiliates under any of the contracts described in clause (d) in the previous sentence (and Deutsche Bank shall not permit any of its Affiliates to require the Purchaser and its Affiliates to obtain such services) in the event there is any duplication of the services provided under such contracts described in such clause (d) and those to be provided under the Transition Support Agreement.
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13. Changes to Section 5.17 (“Subleases”). Section 5.17 of the SPA (“Subleases”) is hereby replaced in its entirety with the following:
“Section 5.17. Subleases. (a) At or prior to the Closing, Deutsche Bank shall, or shall cause its applicable Affiliate to, and the Purchaser shall, or shall cause its applicable Affiliate to, enter into and deliver one or more agreements (the “Sublease Agreements”) to sublease (from Deutsche Bank or such Affiliate of Deutsche Bank to the Purchaser or such Affiliate of the Purchaser) those premises as mutually agreed by the Parties prior to the Closing. At the Closing, Deutsche Bank shall, or shall cause its applicable Affiliate to, and the Purchaser shall, or shall cause its applicable Affiliate to, enter into and deliver one or more agreements (the “Lease Agreements”) to lease (from Deutsche Bank or such Affiliate of Deutsche Bank to the Purchaser or such Affiliate of the Purchaser) those premises as mutually agreed by the Parties prior to the Closing.
(b) Prior to the Closing, Deutsche Bank shall cause (i) The World Markets Company plc to assign to Deutsche Bank AG – London Branch the lease relating to the World Markets House, Crewe Toll, Edinburgh, and (ii) InterSec Research Corporation to assign to an Affiliate of Deutsche Bank (other than a DB Entity) the lease relating to the second floor of Kreuzstrasse 39, 8008 Zurich, Switzerland, in each case, pursuant to instruments reasonably satisfactory to the Purchaser.
(c) The Parties shall use their reasonable best efforts to cause The World Markets Company plc to assign to Deutsche Bank AG – London Branch the lease relating to 27 Chancery Lane, London (the “Chancery Lane Lease”), as promptly as reasonably practicable after the Closing. The Parties agree that Deutsche Bank shall be responsible for any and all costs and expenses of effecting such assignment, including any costs and expenses relating to obtaining any necessary consent to such assignment. The Parties further agree that, anything in Article VII or Section 9.05 hereof to the contrary notwithstanding, Deutsche Bank shall indemnify and hold the Purchaser, its Affiliates and the DB Entities harmless against any Taxes imposed on or payable by the Purchaser, its Affiliates, or the DB Entities with respect to the assignment of the Chancery Lane Lease. Deutsche Bank shall make all payments, rental and otherwise, required under the Chancery Lane Lease.”
14. Changes to Section 5.19 (“Assumed Broker Dealer Facilities”). Section 5.19 of the SPA is hereby replaced in its entirety with the following:
“SECTION 5.19. Assumed Broker-Dealer Facilities (c) Promptly following the date hereof (and in any event sufficiently in advance of the 30th day following the date hereof to allow the Purchaser sufficient time to make a preliminary credit determination with respect to such Broker-Dealer Facilities), Deutsche Bank shall, unless prohibited by applicable Law or the terms of such
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Broker-Dealer Facility, provide all information reasonably requested by the Purchaser with respect to each Broker-Dealer Facility listed on Section 3.21(d) of the Seller Disclosure Schedule. No later than the 30th day following the date hereof, the Purchaser shall complete a preliminary credit review with respect to each such Broker-Dealer Facility and shall notify Deutsche Bank in writing whether it is the Purchaser’s intention, based on such preliminary review (and subject to the next sentence of this Section 5.19(a)), that such Broker-Dealer Facility be an Assumed Broker-Dealer Facility (as defined below) (such notice, the “Assumed Broker-Dealer Notice”). As soon as possible following the Purchaser’s delivery of the Assumed Broker-Dealer Notice, and in any event no later than the 20th Business Day prior to the Closing Date, the Purchaser shall notify Deutsche Bank if, as a result of any final credit review or approval process, a Broker-Dealer Facility identified in the Assumed Broker-Dealer Notice as an intended Assumed Broker-Dealer Facility is not to be treated as an intended Assumed Broker-Dealer Facility for purposes of paragraphs (c) through (e) of this Section 5.19.
(b) At the Closing, Deutsche Bank shall or shall cause the relevant Seller to, and the Purchaser shall or shall cause a Purchasing Subsidiary to, enter into a Master Participation Agreement in the form attached as Exhibit I hereto (the “Master Participation Agreement”) providing the obligation of the Purchaser or a Purchasing Subsidiary to participate in each Broker-Dealer Facility named therein.
(c) With respect to any Broker-Dealer Facility that the Purchaser or a Purchasing Subsidiary participates in pursuant to the Master Participation Agreement (a “Covered Broker-Dealer Facility”), if prior to the Closing the Purchaser has identified to Deutsche Bank its desire to amend the terms or to reduce the maximum available amount of such Covered Broker-Dealer Facility prior to it becoming an Assumed Broker-Dealer Facility, Deutsche Bank shall cooperate with the Purchaser to, and use its commercially reasonable efforts to, so effect such changes, effective as of Assignment Date (as defined below) with respect to such Assumed Broker-Dealer Facility. Prior to the applicable Assignment Date, Deutsche Bank and the Purchaser shall cooperate in all reasonable respects to ensure that each Covered Broker-Dealer Facility is, effective as of such Assignment Date, assigned or novated in full to, and assumed by, the Purchaser or a Purchasing Subsidiary (each such Covered Broker-Dealer Facility, as amended or reduced at the request of the Purchaser prior to such Assignment Date, being, at such Assignment Date, an “Assumed Broker-Dealer Facility”). The Purchaser acknowledges that upon the expiration or termination of any Assumed Broker-Dealer Facility in accordance with its terms following the Assignment Date with respect to such Assumed Broker-Dealer Facility, the Purchaser or the applicable Purchasing Subsidiary shall be solely responsible for negotiating and effecting any replacement facility (and, for the avoidance of doubt, Deutsche Bank and its Affiliates shall not be obligated to renew, amend or modify any Assumed Broker-Dealer Facility). For purposes of this Agreement, the term “Assignment Date” with respect to any Assumed Broker-Dealer Facility
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shall mean the ninetieth (90th) day (or if such ninetieth day is not a Business Day, the next succeeding Business Day) following the Closing Date or such other date as the Purchaser and Deutsche Bank may agree, it being agreed that the parties will cooperate in good faith to determine a mutually acceptable Assignment Date for each Assumed Broker-Dealer Facility taking into account, among others factors, the Conversion plan with respect to the affected broker-dealer Clients.
(d) In connection with each assignment or novation of an Assumed Broker-Dealer Facility pursuant to Section 5.19(c), Deutsche Bank will or will cause the relevant Seller(s) to, assign its or their perfected security interests in the collateral pledged by the relevant Client (including securities, cash and other pledged assets) to secure obligations arising under such Assumed Broker-Dealer Facility (and, thereafter, will cooperate with the Purchaser or such Purchasing Subsidiary to ensure such perfected security interests are maintained until the relevant collateral is transferred to the Purchaser or such Purchasing Subsidiary) and, in consultation with the Purchaser, establish appropriate control arrangements with respect to such collateral remaining in accounts maintained with or through Deutsche Bank or the Seller(s) (which control arrangements shall include, with respect to each such Assumed Broker-Dealer Facility, a Control Agreement to be entered into substantially in the form attached as Exhibit J hereto, with such changes as Deutsche Bank (or the applicable Seller), the Purchaser (or the applicable Purchasing Subsidiary) and the applicable Client may agree upon) and, if necessary to maintain the perfection of any such security interest in such collateral remaining in accounts maintained with or through Deutsche Bank or the Sellers, establish separate direct deposit accounts with respect to pledged cash.
(e) Deutsche Bank and the Purchaser will cooperate in good faith to establish and maintain appropriate funding mechanisms for the continued funding of (i) the Covered Broker-Dealer Facilities after the Closing Date and, for each such Covered Broker-Dealer Facility continuing for so long as such facility remains a Covered Broker-Dealer Facility and (ii) the Assigned Broker-Dealer Facilities, from and after the Assignment Date with respect to each Assumed Broker-Dealer Facility, until such time as Conversion with respect to such Assigned Broker-Dealer Facility has occurred, in each case by the Purchaser or the applicable Purchasing Subsidiary on an uninterrupted basis, including the establishment of one or more funding accounts by the Purchaser or such Purchasing Subsidiary with Deutsche Bank or the relevant Seller(s).”
15. Changes to Section 5.20 (“Deutsche Bank Non-Competition/Non-Solicitation”). Section 5.20(e)(i) is hereby amended to delete the struck text and add the bold underlined text as indicated below:
““Restricted Business” means the provision by Deutsche Bank, the DB Entities and the Sellers (i) any place in the world of global custody services, master trust/master custody services, benefit payment services, master trust accounting services, trustee accounting and administration services, offshore fund
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administration and custody services (including, without limitation, trust and depositary services, fund accounting services, fund administration services, trustee and domiciliary services, transfer agency services and management company services), fund administration and accounting services (including, without limitation, custodial services, trusteeship services, depositary services, pricing services and depotbank services), performance measurement services and securities lending services to the extent generally conducted by Deutsche Bank’s Global Portfolio Management business as of the date hereof, (ii) of broker/dealer clearing services in the United States of America, (iii) of local custody services in the United States of America and the United Kingdom, and (iv) of Agent Fund Trading Services; provided, that the “Restricted Business” shall not include: (A) the provision of any services (1) within the scope of (i) and (iii) above, for issuers of debt, equity, asset-backed and other securities under various indentures and agreements, and other services provided in the ordinary course of the CTAS Business, (2) within the scope of (i) and (iii) above through separate accounts to private clients for the ultimate benefit (including through entities or trusts) of individuals, families, charities or small or medium-size businesses or to employee plans for small and medium-size businesses or by Deutsche Investment Management Americas Inc. (formerly Zurich Scudder Investments, Inc.) and its wholly-owned Subsidiaries for its U.S. proprietary investment products, (3) within the scope of (i) above by DB Trust Bank Japan ancillary to its provision of investment management services, other than global custody services or (4) within the scope of (i) above by Deutsche Bank SAE or Deutsche Bank (Swiss) AG ancillary to the provision of investment management services; (B) the provision in Poland, the Czech Republic, India and Indonesia of depotbank services ancillary to their provision of investment management services; (C) the provision in Europe (other than the United Kingdom and the Republic of Ireland) and the Channel Islands to individuals and small and medium-sized businesses of customary ancillary custody services in respect of holdings of global securities; (D) the conduct by the european transaction bank AG or any successor thereto of the ETB Business, or of local or global custody services to retail banking businesses of European banks including Deutsche Bank or any of its banking Affiliates (other than the provision of global custody and United States and United Kingdom local custody services and depotbank services to institutional investors, including collective investment products and pension funds); (E) the provision of services otherwise within the definition of “Restricted Business” by Deutsche Asset Management (other than by the DB Entities or the Sellers) in the ordinary course of business consistent with past practices to funds, entities and accounts advised by Deutsche Asset Management; (F) the operation of the BT Alex Brown correspondent clearing business consistent with past practices; and (G) any principal securities lending business generally conducted outside of Deutsche Bank’s Global Portfolio Management business. In construing the scope of the term “Restricted Business,” it is the intention of the parties that the Restricted Business shall encompass only the type and scope of activities of Deutsche Bank, the DB Companies and the Sellers conducted on the date hereof in Deutsche Bank’s Global Securities Services division.”
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16. Changes to Section 5.24 (“Replacement of Guarantees”). Section 5.24(a) of the SPA is hereby replaced in its entirety with the following:
“5.24 Replacement of Guarantees.
(a) The Parties agree and acknowledge that the following actions shall be taken prior to Closing:
(i) Deutsche Bank shall execute, effective as of the Closing Date, a guarantee, in respect of Rimvalley Limited, to Six Oaks Developments Limited in connection with the lease of Block 2, Kilkenny Business & Technology Park, Loughboy Kilkenny, and the Guarantee from Deutsche International (Ireland) Limited, in respect of Rimvalley Limited, to Six Oaks Developments Limited in connection with the lease of Block 2, Kilkenny Business & Technology Park, shall be terminated.
(ii) Deutsche Bank shall cause the Subordinated Loan Agreement between Deutsche International (Ireland) Limited and Deutsche Asset Management (Ireland) Limited to be terminated.
(b) The Parties agree and acknowledge that the following actions shall be taken prior to Closing:
(i) Deutsche Bank shall revoke the Letter of Support, dated as of July 17, 2002, between Deutsche Bank AG and The World Markets Company plc., and the Purchaser shall execute, effective as of the Closing Date, a letter of support in favor of The World Markets Company plc.
(ii) Deutsche Bank shall cause its applicable Affiliates to terminate the loan facility entered into between Bankers Trust Holdings (U.K.) Limited and the World Markets Company plc, dated as of October 21, 2002.
(iii) Deutsche Bank shall cause its applicable Affiliates to terminate the Subordinated Loan Agreement, dated as of July 25, 1990, between Morgan Grenfell (C.I.) Limited (now Deutsche Bank International Limited) (as lender) and Morgan Grenfell Custodial Services (C.I.) Limited (now Deutsche Bank Custodial Services (C.I.) Limited) (as borrower) and the Finance and Economics Committee of the States of Jersey.
(iv) Deutsche Bank shall cause its applicable Affiliates to terminate the Guarantee Indenture, dated as of December 20, 1994, between Morgan Grenfell Group plc (now Deutsche Morgan Grenfell Group plc) and Morgan Grenfell Custodial Services (Ireland) Limited (now Deutsche International Custodial Services (Ireland) Limited). The Purchaser shall, or shall cause its applicable Affiliates to, enter into a guarantee agreement with Deutsche International Custodial Services (Ireland) Limited to replace the guarantee described in the preceding sentence.”
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17. New Section 6.18. Article VI is hereby amended by adding the following Section 6.18 at the end thereof:
SECTION 6.18. (a) Deleted Business Employees. Notwithstanding anything contained herein to the contrary, Purchaser and its Affiliates shall have no obligations with respect to the Deleted Business Employees, and Deutsche Bank, the Sellers and their Affiliates shall remain solely responsible for and indemnify and keep indemnified Purchaser and its Affiliates with respect to any losses, Liabilities, costs or claims, arising from or with respect to the Deleted Business Employees, however arising, whether pursuant to Law, including without limitation, the Transfer Provisions, as a result of Purchaser or one of its Affiliates offering any such Business Employee employment or rescinding any such offer, or otherwise. Purchaser or its applicable Affiliate shall use its reasonable efforts to reduce any costs incurred with respect to the Deleted Business Employees as a result of the enrollment of the Deleted Business Employees in the benefit plans of Purchaser or its Affiliates; it being understood among the parties hereto that this may not be possible with respect to all costs incurred. Purchaser, Deutsche Bank, the Sellers and their Affiliates shall cooperate to ensure that the Deleted Business Employees understand that they will not commence employment with Purchaser or one of its Affiliates on or following the Closing Date and will continue to be employed by the Sellers or one of their Affiliates on and following the Closing Date. During the two year period following the Closing Date, Deutsche Bank shall, or shall cause the Sellers to, provide Purchaser and its Affiliates with notice of the proposed or actual termination of the employment of a Deleted Business Employee by Deutsche Bank or the Sellers, so that Purchaser or its Affiliates will have the opportunity (not the obligation) to offer any such Deleted Business Employee employment with Purchaser or its Affiliates. To the extent practicable, such notice shall be provided in advance of the earlier to occur of Deutsche Bank or the Sellers informing the Deleted Business Employee of his or her termination and the Deleted Business Employee’s last scheduled day of employment.
(b) Reimbursement for Replacement of Deleted Business Employees. During the period commencing on the Closing Date and ending on the second anniversary thereof, Deutsche Bank shall, or shall cause the Sellers to, reimburse Purchaser and its Affiliates for (i) the costs incurred by Purchaser or its Affiliates to replace the Deleted Business Employees; provided, however, that prior to the retention of any headhunter or other third party by Purchaser or its Affiliates to assist with the hiring of replacements for the Deleted Business Employees, Purchaser and its Affiliates shall obtain the prior written consent of Deutsche Bank, which consent shall not be unreasonably withheld, and (ii) the incremental costs incurred by Purchaser or its Affiliates to hire third-party consultants to perform the duties of the Deleted Business Employees, with such incremental costs measured as the excess, if any, of the actual cost to Purchaser or its Affiliates of such third-party consultant over the actual cost that Purchaser or its Affiliates would have incurred had they been able to employ a Deleted Business Employee (on the terms set forth in this Agreement with respect to Transferred
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Employees); provided, however, that in the aggregate such third-party consultants shall be hired to perform functions that are substantially comparable in the aggregate to functions performed by the Deleted Business Employees taken as a whole. Any reimbursement pursuant to this Section 6.18(b) shall be made on an after-Tax basis (net of any Tax benefit arising from the incurrence of any such costs by Purchaser or its Affiliates and increased by any Tax cost to Purchaser or its Affiliates arising from the receipt of such reimbursement) and shall be paid to Purchaser or its Affiliates within twenty (20) Business Days of the delivery to Deutsche Bank or the Sellers of an invoice setting forth the itemized amounts and purpose(s) of such costs and including supporting detail.
(c) Singapore Employee Arrangements. As soon as reasonably practicable following the Closing Date, Deutsche Bank, the Sellers or one of their Affiliates and Purchaser or one of its Affiliates shall take the necessary action, including the entering into of a secondment agreement in the form reasonably agreed to between the parties, to ensure that the previously identified Singapore Transferred Employee has access to the necessary systems, data and records of Deutsche Bank, the Sellers and their Affiliates consistent with the terms of the Transition Support Agreement and in a manner that complies with applicable Law.
(d) Certain Luxembourg Employees. With respect to the two previously identified Luxembourg Employees, either (i) Deutsche Bank shall or shall cause the applicable Seller to pay Purchaser or its designated Affiliates a cash amount or (ii) the Closing Statement of Net Assets shall reflect an accrual (with the payment of cash or receipt of an accrual to be mutually agreed among the parties as soon as practicable following the Closing Date), in either case equal to the lump-sum present value of the pension liability (on a projected benefit obligation basis) in excess of the statutory maximum benefit in respect of each such Luxembourg Employee (currently estimated to be approximately 200,000 Euros in the aggregate).
(e) Australian and UK Secondment Arrangements. As soon as reasonably practicable following the Closing Date, Deutsche Bank, the Sellers or one of their Affiliates and Purchaser or one of its Affiliates shall take the necessary action to enter into a secondment agreement substantially in the form agreed to between the parties with respect to the secondment of employees in the United States, to ensure that the services of the previously identified Australian Business Employees and the identified UK Business Employee are available to Purchaser and its Affiliates following the Closing Date.
18. Changes to Section 9.02 (“Indemnification”). Section 9.02(a) of the SPA is hereby amended to delete the struck text and add the bold underlined text as indicated below:
“(a) From and after the Closing, Deutsche Bank (acting for itself and on behalf of each Seller in relation to the Shares and/or Purchased Assets to be sold by the relevant Sellers) shall indemnify, defend and hold harmless the Purchaser and its
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Affiliates and their respective officers, directors, employees and agents and the heirs, executors and assigns of the foregoing (“Purchaser Indemnified Parties”) from and against any Liabilities, costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages, disbursements and deficiencies (including any interest, penalties, legal, accounting and other costs and expenses incurred in the investigation, collection, prosecution and defense of any action, suit, proceeding or claim and amounts paid in settlement thereof and including any of the foregoing related to the enforcement of this Agreement, but excluding any consequential, indirect or punitive damage unless such consequential, indirect or punitive damages are awarded against any of the Purchaser Indemnified Parties or Deutsche Bank Indemnified Parties in a third party claim or, with respect to a direct claim, in cases of common law fraud) (collectively, “Damages”) actually incurred by the Purchaser Indemnified Parties arising from or in connection with (i) any inaccuracy in any representation or the breach of any warranty of Deutsche Bank under this Agreement (without giving effect to any limitations or qualifications as to “materiality” (including the word “material”) set forth in the representations contained in Sections 3.02, 3.05, 3.06, 3.10, 3.11, 3.14, 3.17 or 3.21(c) or to any limitations or qualifications as to Material Adverse Effect or “knowledge” set forth in any representation or warranty), (ii) the failure of Deutsche Bank to duly perform or observe any term, provision, covenant or agreement to be performed or observed by Deutsche Bank pursuant to this Agreement, (iii) the Excluded Liabilities (iv) the Liabilities of the DB Entities set forth on Schedule 9.02 hereto, or (v) any Liabilities related to or arising out of the Chancery Lease (including any assignment of the Chancery Lease pursuant to Section 5.17(c)) or any related contracts for maintenance services or other facilities-related services to be performed at the facility subject to the Chancery Lease. Notwithstanding anything herein to the contrary (but subject to the last sentence of this Section 9.02(a)), Deutsche Bank shall not be liable for any indemnification pursuant to Section 9.02(a)(i) unless and until the aggregate amount of Damages that would otherwise be payable pursuant to Section 9.02(a)(i) exceeds €15,000,000 (the “Deductible Amount”), in which case the Purchaser Indemnified Parties shall be entitled to receive only that amount in excess of the Deductible Amount, provided that the Deductible Amount shall not apply to any inaccuracy or breach of the representations and warranties set forth in Section 3.14(a) and (b). In calculating the Deductible Amount or Damages hereunder, all Damages in respect of any Claim or series of related Claims which total less than €25,000 (the “De Minimis Amount”), other than Claims pursuant to clause (v) in the immediately preceding sentence above, shall be excluded in their entirety, and the Purchaser Indemnified Parties shall have no recourse for such Damages. Notwithstanding anything herein to the contrary, the maximum aggregate liability under Section 9.02(a) (i) shall not exceed 50% of the Purchase Price.”
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19. Changes to Section 7.08(b). The SPA is hereby amended to add the following new Section 7.08(b)(vi):
“(vi) Deutsche Bank and the Purchaser shall negotiate in good faith and attempt to reach agreement with respect to the most appropriate treatment for German VAT purposes of the Local Purchase Price relating to the portion of the Business transferred by DB in Germany (the “German Local Purchase Price”), or any portion thereof, including the characterization of any intangible asset to which any portion of such Local Purchase Price is attributable. In the event Deutsche Bank and the Purchaser are unable in good faith to agree upon the most appropriate treatment of such issues under German VAT law within five (5) Business Days after the Closing Date (or such extension of time as both parties may mutually agree), each of Deutsche Bank and the Purchaser shall have its own legal advisors (including outside counsel as appropriate) prepare, in writing, its respective position on the German VAT treatment of such issues in preparation for a meeting between the outside legal advisors, local finance personnel and departmental heads of tax for each of Deutsche Bank and the Purchaser to be held within five (5) further Business Days (or such extension of time as both parties may mutually agree) in Frankfurt, at which meeting the parties will further attempt in good faith to reach agreement on the most appropriate German VAT treatment of such issues. In the event Deutsche Bank and the Purchaser are unable to agree at such meeting, the senior business management of each of Deutsche Bank and the Purchaser shall agree upon the resolution of the German VAT issues. As soon as practicable after an agreement has been reached with respect to the German VAT treatment of the German Local Purchase Price or any portion thereof, Deutsche Bank shall deliver to the Purchaser an appropriate and valid VAT invoice in respect of such payment, which invoice shall reflect the agreed resolution of the German VAT issues.
20. Changes to Schedules to SPA.
(a) Amendment to Section 2.02(a)(v) of the Seller Disclosure Schedule. Section 2.02(a)(v) of the Seller Disclosure Schedule is hereby replaced in its entirety with the document attached hereto as Schedule 2.02(a)(v) below.
(b) Amendment to Section 3.07 of the Seller Disclosure Schedule. Section 3.07 of the Seller Disclosure Schedule is hereby replaced in its entirety with the document attached hereto as Schedule 3.07 to reflect the amendments to the identities of the Clients of the Business as provided in Section 19(d) hereof.
(c) Amendment to Section 3.15 of the Seller Disclosure Schedule.
(i) Section 3.15(a) of the Seller Disclosure Schedule is hereby replaced in its entirety with the attached Schedule 3.15(a), dated as of January 30, 2003, which reflects (a) the ordinary course additions and deletions (e.g., due to death, resignation, termination) as agreed among Deutsche Bank, the Sellers and Purchaser prior to January 30, 2003, consistent with the updating provisions of the Agreement, and (b) the negotiated additions and deletions of the individuals set forth on the attached Annex A as agreed among Deutsche Bank, the Sellers and Purchaser prior to January 30, 2003, to the list of Business Employees (the “Updated Schedule 3.15(a)”).
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(ii) The Updated Schedule 3.15(a) is hereby amended to delete the names of the following individuals employed in the identified locations and, for purposes of the Agreement, the individuals listed below shall collectively be referred to as the “Deleted Business Employees”:
(A) Risk/Control Group
United States: | Ken Paulson Susan Anderson Bob Karsch | |
Asia: | Kelly Tan |
(B) Tax Unit Processing
United States: | Roseanne McKeever David Wisniewski |
(C) Journal Group
United States: | Anthony Minio Oswald Lowe Norman White Jean Faucher Alex McCoy Anne Wollery-Manigault |
(D) Systems Split
Singapore: | Lily Chia Susan Chua Abdul Ghani Molly Chan |
(d) Amendment to Section 3.21 of the Seller Disclosure Schedule. Section 3.21 of the Seller Disclosure Schedule is hereby amended to add certain client parties and to remove certain other clients, as set forth on the page entitled “Amendments to Section 3.21 of the Seller Disclosure Schedule” attached hereto.
(e) New Section 5.08(d) of the Seller Disclosure Schedule. The Seller Disclosure Schedules are hereby amended to add a new Section 5.08(d) of the Seller Disclosure Schedule, in the form attached hereto.
(f) New Section 5.18 of the Seller Disclosure Schedule. Section 5.18 of the Seller Disclosure Schedule is hereby replaced in its entirety with the document attached hereto as Schedule 5.18.
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21. Additions to Exhibits of SPA. The SPA is hereby amended by adding new Exhibit I (Master Participation Agreement) and new Exhibit J (Form of Control Agreement) to the SPA, such new Exhibits to the SPA attached as Exhibits I and J, respectively, hereto.
22. No Other Amendment. Except as expressly set forth herein, this Amendment shall not by implication or otherwise alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the SPA, all of which are ratified and affirmed in all respects and shall continue in full force and effect.
23. Miscellaneous. The provisions of Sections 11.04 (Headings), 11.05 (Severability), 11.10 (Governing Law; Submission to Arbitration), and 11.11 (Counterparts) of the SPA are incorporated herein by reference and shall apply to the terms and provisions of this Amendment and the parties hereto mutatis mutandis.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered by their respective officers hereunto duly authorized as of the date first above written.
DEUTSCHE BANK AG | ||
By: | /s/ FRANK KRINGS | |
Name: Frank Krings Title: Managing Director |
By: | /s/ PHILIPPVON GIRSEWALD | |
Name: Philipp von Girsewald Title: Director |
STATE STREET CORPORATION | ||
By: | /s/ JAMES C. CACCIVIO, JR. | |
Name: James C. Caccivio, Jr. Title: Senior Vice President |
[Signature Page to Amendment No. 2 to Sale and Purchase Agreement]
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