Disclaimer / Restricted access
Deloitte Financial Advisory GmbH (“Deloitte FA”) was engaged by S&T AG, registered in Industriezeile 35, 4020 Linz and under registration number FN 190272m (hereinafter “Client”), to conduct a forensic investigation with regard to allegations raised by Viceroy Research LLC in a report dated 15 December 2021. This report represents an executive summary of the according to our opinion most relevant results of our forensic investigation work (hereafter “Report”), while we have provided a significantly more comprehensive long form report (herafter “Long Form Report”) to S&T AG.
I (hereinafter the “Third Party”, “I” or “Me”), am informed that the terms and conditions entered into between Deloitte FA and the Client (hereinafter the “Engagement”) together with the General Terms and Conditions of Deloitte Financial Advisory GmbH which underlie the present Engagement and constitute an integral part thereof (hereinafter the “FA GTCs”) provide that disclosure of the Report to Third Party within the meaning of section 5. of the Engagement Letter shall require the advance consent of Deloitte FA. The Client has now asked Deloitte FA to give it permission to furnish Me with a copy of the Report as defined in section 5. of the Engagement Letter. Deloitte FA’s consent to the disclosure of this Report to Me is premised on the consent of the present declaration of waiver by Me, which contains the following substantive points:
- I hereby take note and accept that the Report was prepared solely for purposes of the Client and that they thus do not necessarily contain all information which would be necessary to our evaluation in connection with our purposes. In addition the Report represents a short form executive summary not necessarily containing all results of Deloitte FA investigations, while the Long Form Report provided to S&T AG may contain additional material facts which may be relevant for me. Deloitte FA, its partners (including the partners of entities associated with Deloitte FA), staff members and authorised agents accordingly do not provide any warranty and shall bear no liability for the sufficiency or appropriateness of the information contained in this Report for our purposes and our objectives.
- I hereby agree that Deloitte FA shall have no duties to Me whatsoever, whether on the basis of contract or tort (such as based on a breach of the duty of care and on the basis of statutory duties) or any other duties, or that it is deemed to assume any such duties, and Deloitte FA shall not bear any liability or losses, damages or costs of any kind incurred by Me from our reliance on the Report or reliance on the declarations given orally or in writing or other provided information in connection therewith. In the event that I choose to rely on the Report and/or on any such declarations or other information communicated by Deloitte FA, I shall be deemed to do so entirely at our own risk without recourse to Deloitte FA.
- I hereby undertake to indemnify and hold Deloitte FA harmless in respect of all legal actions, proceedings and claims which may be asserted, initiated or threatened against Deloitte FA and in respect of all losses, damages, costs and expenses resulting therefrom (including the costs of legal counsel) resulting in any way out of or in connection with the access I have been given to the Report and in respect of declarations given orally or in writing or other provided information in that context or otherwise, including all losses, damages, costs and expenses (including the costs of legal counsel) in connection with any settlement or disposition of any such legal actions, proceedings or claims.
- I hereby take note and accept that any disclosure to any other person, any citation or publication (including even only in excerpted form) of the Report by Me is prohibited. I accordingly undertake that I shall not provide the Report to any other Third Party or give any other Third Party information I have received from the Report and/or from any oral or written declarations given by Deloitte FA or other provided information in relation thereto. Exceptions to the foregoing are cases in which information (a) must be disclosed pursuant to statutory or regulatory rules, provided that Deloitte FA is notified promptly of this requirement and that the scope of the disclosure is restricted to the maximum extent possible, or (b) based on a court decision, such information must be disclosed, provided that Deloitte FA is notified promptly of such decision and provided that there is no possibility of challenging such court decision. “Other Third Party” shall also include any entities affiliated and associated with Me. In all further and other respects, it shall be My responsibility to ensure that the Report is treated in strictest confidence. I shall bear liability independent of fault for any breach of this duty of confidentiality.
- I hereby take note that Deloitte FA has not updated the Report to take account of the events or circumstances occurring after the date of the execution of the Report, or cut-off date if earlier, and Deloitte FA shall have no obligation to do so (such as any duties to warn). In addition, I take note that the Report prepared by Deloitte FA on the basis of their services may contain information, facts regarding events, circumstances and framework conditions which may have changed in the interim.
- The agreements and obligations contained in this declaration shall remain in force even after the delivery of the Report (or associated communications) and where the project is completed or abandoned (and/or where the objectives of the beneficiary party are accordingly met or not met).
- I hereby confirm and warrant that the party executing this declaration on our behalf is authorised to sign this declaration and/or has been instructed accordingly.
- The declaration made herein and the indemnification and hold harmless undertaking shall apply in favour of Deloitte FA, its partners, staff members and agents.
- This declaration constitutes the entire agreement of the parties in respect thereof; there are no ancillary agreements hereto.
- In the event that any term of this declaration should be deemed invalid or unenforceable in whole or in part for any reason, theenforceability or validity of the remaining terms hereof or portions of this declaration shall not be affected by such unenforceability or invalidity.
- This declaration shall be governed by substantive Austrian law excluding the UN Sales Convention, and shall be construed accordingly. The place of performance is Vienna. With respect to any disputes arising out of this agreement, the parties agree that jurisdiction shall be vested in the Vienna Commercial Court.
By agreeing to this declaration, I hereby confirm that I accept the terms of this declaration and that I have understood the same and accept all of the terms thereof.