SALE AND PURCHASE AGREEMENT
by and between
[●], an Italian corporation having its registered office at [●], having an issued share
capital of € [●], registered as no. [●] on the register of enterprises of [●], acting by its
[●], Mr. [●], duly authorised to execute this Agreement by virtue of [●] (the “Seller”)
- on the one part -
[●], a [●] corporation having its registered office at [●], in [●], having an issued share
capital of € [●] ([●]), registered as no. [●] on the register of enterprises of [●], acting by
its [●], Mr. [●], duly authorised to execute this Agreement by virtue of [●], (the
- on the other part -
A. The Seller owns [●] shares, with a par value of € [●] each, representing 100% of
the issued share capital and voting rights of [●], an Italian corporation having its
registered office in [●], [●], with an issued and fully paid up share capital of €
[●], registered as no. [●] on the register of enterprises of [●] (the “Company”).
B. The Company is active in the sector of [●] (the “Business”).
C. The Seller has organized a sale process, during which the Seller has invited
several interested parties to submit certain non-binding offers for the purchase of
the entire share capital of the Company. A limited number of potential
purchasers were thereafter invited to a second phase of the sale process, during
which they conducted an investigation of the Company, having access to a Data
Room (as defined below) and participated in management interviews.
D. All the investigations and reviews mentioned in recital C (collectively, the “Due
Diligence”) above were carried out by the Buyer and its representatives and
advisors (financial, accounting, legal and technical).
E. On [●], the Buyer, after having carried out the Due Diligence, which was
satisfactory to it in all respects, on the basis of its own assumptions, evaluations
and projections, submitted a binding offer to purchase the entire share capital of
the Company, and the Seller is willing to accept such offer, on the terms and
subject to the conditions provided for in this Agreement.
F. The Seller agrees to sell and transfer to the Buyer, and the Buyer agrees to
purchase and acquire from the Seller the Shares (as defined below), as more
fully described, and upon the terms and subject to the conditions set forth,
NOW THEREFORE, in consideration of the premises and mutual promises
herein contained, the Parties, intending to be legally bound, hereby covenant and agree
as set forth below.
1. CERTAIN DEFINITIONS
In addition to other terms defined elsewhere in this Agreement, the following
terms shall have the meanings ascribed to them as stated below for the purpose
of this Agreement.
“Accounting Principles”: means the principles of the Italian Civil Code
concerning the preparation of the financial statements (bilanci di esercizio)
integrated by the accounting principles established by the "Consigli Nazionali
dei Dottori Commercialisti e dei Ragionieri" (as modified by the "Organismo
Italiano Contabilità" with reference to the company law reform), applied on a
basis consistent with the Company's past practice.
“Affiliate”: means with respect to any Person, an individual, corporation,
partnership, firm, association, unincorporated organization or other entity
directly or indirectly controlling, controlled by or under common control with,
“Agreed Rate”: means an interest rate per annum corresponding to the
[EURIBOR 3-months] applicable from time to time during any given period of
time, as published by the financial newspaper “Il Sole 24 Ore”, computed on the
basis of the exact number of days elapsed divided by 365.
“Agreement”: means this sale and purchase agreement, including the recitals
“Business”: shall have the meaning set forth in recital B.
“Business Day”: means any calendar day other than Saturdays, Sundays and any
other days on which credit institutions are generally closed in Milan (Italy).
“Clearance”: shall have the meaning set forth in section 4.1.1.
“Closing”: means the purchase and sale of the Shares, the payment of the
Purchase Price and, in general, the execution and exchange of all documents and
agreements and the performance and consummation of all obligations and
transactions, respectively required to be executed and exchanged and performed
and consummated on the Closing Date pursuant to this Agreement.
“Closing Date”: means the third (3rd) Business Day following the date on which
the condition precedent set forth in section 4.1 is satisfied or waived, or on such
other date the Parties may agree.
“Company”: shall have the meaning set forth in recital A.
“control”, “controlling” and “controlled”: shall have the meaning set forth in
article 2359, first paragraph, no. 1 of the Italian Civil Code.
“Data Room”: means the electronic data room organized by [●], accessible from
[●] to [●], containing the documents listed in Schedule 1.1 (Data Room Index)
“Due Diligence”: shall have the meaning set forth in recital D.
“Encumbrances”: means any encumbrance, lien, claim, charge, security,
mortgage, pledge, easement, conditional sale or other title retention agreement,
or other similar restriction or third-party rights, as the context may require.
“Financial Statements”: means the [financial statements (bilancio di esercizio)
as of 31 December 2008] of the Company attached hereto as Schedule 1.1-bis.
“Governmental Body”: means any legislative, executive or judicial unit of any
governmental entity (foreign, federal, state or local) or any department,
commission, board, agency, bureau, official or other regulatory, administrative
or judicial authority thereof.
“Interim Period”: shall have the meaning set forth in section 3.1.1.
“Law”: means any national, federal, state, provincial or local law, statute,
ordinance, rule, regulation, code, order, judgment, injunction or decree.
“Material Adverse Change” or “Material Adverse Effect”: means any
change, event, development and/or effect that is, or is reasonably expected to be,
materially adverse to the business, assets, operations, prospects or condition
(financial or otherwise) of the Company, provided that none of the following
shall be deemed to constitute or to have, and none of the following shall be taken
into account in determining whether there has been, a Material Adverse Change
or a Material Adverse Effect: (a) any adverse change, event, development, or
effect arising from or relating to: (i) general business or economic conditions
(including changes in raw material prices), including such conditions related to
the Business; (ii) financial, banking, or securities markets (including any
disruption thereof and any decline in the price of any security or any market
index); (iii) changes in laws, rules, regulations, orders, or other binding
directives issued by any Governmental Body; (iv) any existing event,
occurrence, or circumstance with respect to which the Buyer has knowledge as
of the date hereof; (v) the public announcement of the transactions contemplated
in this Agreement, (vi) compliance by the Seller with the terms of this
Agreement; or (b) any adverse change in or effect on the Business that is cured
by the Seller or the Company before the earlier of (i) the Closing Date and (ii)
the date on which this Agreement is terminated in accordance with its terms.
“Material Contracts”: shall have the meaning set forth in section 6.1.11(a).
“Party”: means either the Buyer or the Seller, as the context may require, and
“Parties” means both of them.
“Person”: means any individual, corporation, partnership, firm, association,
unincorporated organization or other entity.
“Products”: means [●].
“Purchase Price”: shall have the meaning set forth in section 2.2(a).
“Release Letters”: shall have the meaning set forth in section 9.2.3.
“Shares”: no. [●] shares, representing 100% of the issued share capital and
voting rights of the Company, with a par value of € 1,00 each, owned by the
“Tax”: means and includes all forms of taxation and statutory, governmental,
supra-governmental, state, principal, local governmental or municipal
impositions, duties, contributions and levies, in each case wherever and
whenever imposed, and all penalties, charges, costs and interest relating thereto
and any deductions or withholdings of any sort.
1.2 Other Definitional and Interpretive Matters
Unless otherwise expressly provided, for the purposes of this Agreement the
following rules of interpretation shall apply.
(a) Calculation of Time Period. When calculating the period of days before
which, by which or following which any act is to be done or any step is
to be taken pursuant to this Agreement, the day that is the reference
date in calculating such period shall be excluded. If the last day of such
period is not a Business Day, the relevant period shall end on the next
following Business Day. Unless otherwise expressly provided for, any
period of time expressed in months shall be calculated as provided for
in article 2963, paragraphs 4 and 5 of the Italian Civil Code.
(b) Gender and Number. Any reference in this Agreement to gender shall
include all genders, and words imparting the singular number only
shall be deemed to include the plural and vice versa.
(c) Headings. The provision of a table of contents, the division of this
Agreement into articles, sections, paragraphs and other subdivisions
and the insertion of headings are for convenience of reference only and
shall not affect or be utilized in construing or interpreting this
(d) Paragraph/Section/Article. All references in this Agreement to any
“paragraph”, “section” and/or “article” are to the corresponding
paragraph, section and/or article, respectively, of this Agreement unless
(e) Herein and similar. The words such as “herein,” “hereinafter,”
“hereof,” and “hereunder” refer to this Agreement as a whole and not
merely to a subdivision in which such words appear, unless the context
(f) Including. The word “including” or any variation thereof means
“including, without limitation” and shall not be construed to limit any
general statement to the specific or similar items or matters
immediately following it.
(g) Schedules. The schedules attached to this Agreement shall be construed
with and as an integral part of this Agreement to the same extent as if
they had been set forth verbatim herein. Any matter disclosed by the
Seller in any schedule in connection with any of the representations
and warranties of the Seller set forth in article 6 shall be deemed to
have been disclosed for the purposes of all other representations and
warranties of the Seller or any other provisions in respect of which
such disclosure may be relevant or appropriate, and, to the extent any
matter disclosed in any schedule conflicts with any representation,
warranty or covenant of the Seller contained in this Agreement, the
Seller shall not have any liability with respect to such representation,
warranty or covenant.
(h) Knowledge of the Representing Seller. Where any representation or
warranty contained in this Agreement is expressly qualified by
reference to the “knowledge of the Seller”, this shall mean the actual
and effective knowledge, as of the date hereof, of the Seller.
(i) Adverse Construction. The language throughout this Agreement shall
in all cases be construed as a whole, in accordance with fair meaning
and without any presumption that the terms hereof shall be more
strictly construed against one Party than the other by reason of the rule
that a document is to be construed more strictly against the Party who
has prepared it, it being acknowledged that both Parties have
participated in the drafting and negotiation of this Agreement.
2. SALE AND PURCHASE OF THE SHARES
2.1 Undertaking of the Seller and the Buyer
Upon the terms and subject to the conditions of this Agreement (and upon the
payment of the Purchase Price), the Seller hereby sells and transfers to the
Buyer, and the Buyer hereby purchases and acquires from the Seller, effective
on the Closing Date, upon the consummation of the Closing, all of the rights,
title and interest held by the Seller in and to the Shares, free and clear from any
Encumbrance in consideration of the Purchase Price set out in Section 2.2.
2.2 Purchase Price
(a) The aggregate amount to be paid on the Closing Date by the Buyer to the
Seller in consideration of the purchase and sale of the Shares shall be € [●]
([●]) (the “Purchase Price”).
(b) The Parties acknowledge and agree that the Purchase Price shall not be
subject to any reduction, adjustment, amendment or revision and therefore
the Purchase Price shall be final and binding for the Parties.
The payment of the Purchase Price shall be effected on the Closing Date in
accordance with the provisions of this Agreement.
2.4 Right to Designate
The Buyer may designate one or more Person(s) to become a Party to this
Agreement and to purchase and pay for the Shares in accordance with the terms
hereof, provided that such designation is made in compliance with the following
(a) anything in Article 1403 of the Code to the contrary notwithstanding,
each designation will be sufficiently made, if notified in writing to the
Seller together with the written acceptance of the Person(s) so
(b) any designation pursuant hereto may be notified to the Seller (under
penalty of forfeiture) not later than three (3) Business Days prior to the
(c) each designee shall be an Affiliate of the Buyer; and
(d) the Buyer will be jointly and severally liable with any Person(s)
designated pursuant to Section 2.4 in respect of the punctual and exact
performance by such Person(s) of the duties and obligations arising
under or in connection with this Agreement.
3. INTERIM MANAGEMENT
3.1 Undertakings of the Seller
3.1.1 Except as otherwise provided for in Schedule 3.1.1 attached hereto or in other
clauses of, or schedules to, this Agreement or as otherwise approved in writing,
(which approval shall not be unreasonably withheld or delayed), by the Buyer
after the date hereof, during the period from the date of this Agreement to the
Closing Date (the “Interim Period”), the Seller shall take all reasonable actions
within its powers to the extent permitted under applicable Law (including voting
in the shareholders' meeting of the Company) to cause the Company to conduct
the Business in the normal and ordinary course consistent with past practice.
3.1.2 In particular, subject to the aforesaid exceptions, the Seller shall ensure that the
Company will not:
(a) purchase or otherwise acquire any real estate property;
(b) purchase, sell, transfer, encumber, lease (as lessor or lessee), license (as
licensor or licensee) or otherwise acquire or dispose of tangible or
intangible assets (other than real estate property and inventory) having
a value in excess of € [●] for each transaction;
(c) hire or dismiss any executive (“dirigente”);
(d) increase the rate of compensation payable or to become payable to any
employees, other than increases (i) made to employees generally in
accordance with normal past practice and in the ordinary course of
business, or (ii) mandated by applicable Law or collective bargaining
or individual agreement in force as of the date hereof;
(e) waive any rights or entitlements that may have a Material Adverse
(f) change the accounting methods, principles, practices or policies, other
than as mandated by applicable Law;
(g) materially delay the payment of any amount due to its suppliers in a
way which is not consistent with past practice or solicit or agree to the
extension of the payment terms applicable to any suppliers pursuant to
the normal commercial practice of the Business;
(h) manage the inventory of the Company in a way which (i) is materially
inconsistent with Company's past practice, and which (ii) may have a
Material Adverse Effect;
(i) make any distribution, of any type, of profits or reserves in favour of its
(j) agree to do any of the foregoing.
3.2 Procedure for Buyer’s Consent
3.2.1 If, during the Interim Period, the Seller intends to cause the Company to take
any of the actions referred to in section 3.1.2 which are not otherwise permitted
or approved by other provisions of, or schedule to, this Agreement, the Seller
shall notify in writing the Buyer’s designated representatives which the Buyer
will identify in writing within and not later than two (2) Business Days after the
date hereof (the “Designated Representatives”). The failure to designate the
Designated Representatives by the Buyer shall be regarded as an approval of any
action notified by the Seller pursuant to this section 3.2.1.
3.2.2 Any action notified to the Designated Representatives as provided in section
3.2.1 in respect of which at least one of the Designated Representatives does not
express its dissent in writing within and not later than two (2) Business Days
from the date of receipt of the relevant written notification, shall be deemed to
have been approved by the Buyer.
4. CONDITION PRECEDENT
4.1.1 The obligation of the Parties to effect the Closing pursuant to this Agreement is
subject to the condition that the sale and purchase of the Shares pursuant to this
Agreement and all other relevant transactions contemplated hereby shall be
approved, cleared or granted an exemption by any competent antitrust authority
of [●], to the extent that any such approval, clearance or exemption is required
by any applicable Law (hereinafter the approvals, clearances and exemptions
contemplated above are collectively referred to as the “Clearance”).
4.1.2 The Buyer hereby declares that it has carried out all necessary due diligence and
investigations in relation to the antitrust profiles, and, according to such
investigations, there will be no obstacles in obtaining the Clearance in relation to
the transaction as provided herein.
4.1.3 As soon as practicable after the date hereof and in any event no later than [●],
the Buyer shall duly and properly file all applications, requests and other
documents that are required to obtain the Clearance; the Buyer shall keep the
Seller informed in a timely fashion of all steps taken pursuant hereto, and the
Seller shall actively cooperate with the Buyer to obtain the Clearance as soon as
possible. To this effect, the Buyer shall submit to the Seller a draft of any
document(s) to be filed with the relevant authority to obtain the Clearance at
least three (3) Business Days before making any such filing for the Seller's
review. The Seller shall promptly review the aforesaid document(s) and provide
its comments, if any, to the Buyer, who shall take such comments into due
account and shall use reasonable efforts to incorporate them into the
4.1.4 All costs and expenses arising from the actions and activities taken by the Parties
to cause the Clearance to be granted as promptly as practicable shall be borne by
the Buyer also in consideration of the declaration contained in section 4.1.2.
4.2 Satisfaction of Condition and Effects
In the event that, notwithstanding the Parties’ efforts, the Clearance is not
obtained on or prior to [●], this Agreement shall automatically terminate and the
Parties shall be released from all obligations hereunder except for: (i) any rights
or obligations arising under article 11 (Confidentiality), section 12.4 (Notices),
section 12.5 (Applicable Law) and article 13 (Arbitration); and (ii) any rights or
obligations arising in connection with any breach of section 4.1 (Clearance).
5.1 Date and Place of Closing
The Closing shall take place at the offices of [●], at [●], at [●] a.m. local time on
the Closing Date, or at such other place, date and time as the Parties may
hereafter agree upon in writing.
5.2 Deliveries at Closing
In addition to any other action to be taken and to any other instrument to be
executed and/or delivered pursuant to this Agreement at the Closing:
(a) simultaneously with the receipt by the Seller of satisfactory
confirmation by the relevant bank that the amount of the Purchase
Price has been duly credited to the bank accounts to be indicated by the
Seller in accordance with section 12.6, the Seller shall:
(i) endorse and deliver to the Buyer the certificates representing the
Shares in order to transfer full title to the Shares to the Buyer;
(ii) execute and deliver such other instruments as may be necessary,
under applicable Law, to vest in the Buyer good and marketable
title to the Shares;
(iii) deliver to the Buyer all other previously undelivered items
required to be delivered pursuant to this Agreement or in
(b) the Buyer shall:
(i) pay or cause to be paid to the Seller the Purchase Price;
(ii) pay or cause to be paid to the appropriate entities or persons and
in the appropriate manner, any stamp, transfer or similar taxes or
charges however levied by any Governmental Body on the
transfer of the Shares;
(iii) execute and deliver or cause to be executed and delivered such
transfer or other instruments in respect of the purchase and sale of
the Shares contemplated hereunder as may be necessary, under
applicable law, to properly effect the purposes of this Agreement;
(iv) deliver to the Seller the Release Letters;
(v) deliver to the Seller all other previously undelivered items
required to be delivered pursuant to this Agreement or in
5.3 One Transaction
All actions and transactions constituting the Closing pursuant to Section 5.2
shall be regarded as a single transaction so that, at the option of the Party having
interest in the performance of the relevant specific action or transaction, no
action or transaction constituting the Closing shall be deemed to have taken
place, if and until all other actions and transactions constituting the Closing have
been properly performed in accordance with the provisions of this Agreement.
5.4 Transfer of Title
Upon the occurrence of the Closing, the Buyer will acquire title to the Shares as
of the Closing Date and will be entitled to any dividend declared or paid with
respect thereto from such date.
6. REPRESENTATIONS AND WARRANTIES OF THE SELLER
6.1 Undertakings of the Seller
The Seller hereby makes the following representations and warranties to the
Buyer, provided however that the Seller is not liable under the representations
and warranties set forth in this Section 6 with respect to any event, act, contract,
action, transaction, matter, or circumstance disclosed in, referred to, or resulting
from any provision of this Agreement and any schedules attached hereto.
6.1.1 Organisation and Standing. The Seller is a corporation duly incorporated and
validly existing under the Laws of Italy.
All corporate and other actions required to be taken by, or on behalf of, the
Seller to authorise it to enter into this Agreement have been duly and properly
taken; and this Agreement has been duly executed and delivered by the Seller
and constitutes the valid and binding obligations of the Seller, enforceable
against it in accordance with its terms.
6.1.3 No Conflict. The execution and delivery of this Agreement, and the
consummation of the transactions contemplated hereby, will not result in a
breach of, or constitute a default under the articles of association or the by-laws
of the Seller or violate any Law applicable to the Seller.
(a) The Seller has good and marketable title to the Shares, free and clear of
any Encumbrances, as well as full rights, power and authority to sell,
assign, transfer and deliver the Shares in accordance with the terms of
this Agreement; and upon the occurrence of such sale and delivery, the
Buyer will acquire good and marketable title to the Shares;
(b) the Shares are fully paid up and collectively constitute 100% of the
issued and outstanding share capital of the Company; and
(c) there are no options, warrants, conversion or subscription rights,
agreements, contracts or commitments of any kind obligating the
Company, conditionally or otherwise, to issue or sell any new share, or
any instrument convertible into or exchangeable for any such share, or
to repurchase or redeem any of the shares.
(a) The Company is a joint stock corporation (società per azioni) duly
incorporated, validly existing and in good standing under the Laws of
Italy and has full power and authority to conduct the Business as
(b) The by-laws of the Company are in the form attached hereto as
Schedule 6.1.5. The paid up capital of the Company is set forth in its
6.1.6 Financial Statements. The Financial Statements have been prepared in
accordance with the Accounting Principles applied on a consistent basis and give
a true and fair view of the assets, liabilities and net equity of the Company as at
[31 December 2008], of its revenues and expenses and of the results of its
operations for the twelve (12) month period then ended.
6.1.7 Absence of Material Adverse Changes. To the knowledge of the Seller and with
the exception of the facts listed in Schedule 6.1.7 attached hereto, since the
reference date of the Financial Statements to the date hereof: (i) the Company
has been operated in the ordinary course consistently with past practice; and (ii)
there has not been any Material Adverse Change or any change, effect, event,
occurrence or state of facts that could reasonably be expected to have a Material
6.1.8 Inventory. Except as reserved on the Financial Statements and subject to
ordinary course, loss, waste and aging, the inventory of the Company as at the
Closing Date shall be of good quality, usable and saleable in the ordinary course
of the Company’s business.
6.1.9 Tangible Property.
(a) The Company has good and valid title to, or a valid and binding
leasehold interest or license in or other valid right to use, all tangible
assets currently owned or used by the Company in connection with the
conduct and operation of the Business.
(b) All tangible assets and properties used in connection with the conduct
and operation of the Business, as currently conducted, are in normal
operating condition and repair, normal wear and tear excepted, for the
purposes for which it is currently being used.
6.1.10 Intellectual Property.
(a) The Company owns all of the patents and trademarks as listed in
Schedule 6.1.10 attached hereto (collectively, the “Intellectual
(b) To the date hereof no proceedings have been instituted or are pending
which challenge the rights of the Company in respect of the Intellectual
(c) All renewal fees due prior to the Closing Date in respect of the
registration of the Intellectual Property and other fees or expenses due
prior to the Closing Date which are necessary to ensure the continued
validity of the registrations of the Intellectual Property shall have been
paid by the Closing Date.
(d) The Company: (i) has not granted to any other Person the right to use
any Intellectual Property, or (ii) does not make use of any patents or
trademarks on the basis of license agreements entailing annual
payments in favour of the owners or licensors.
6.1.11 Material Contracts.
(a) Except as set forth in Schedule 6.1.11, all agreements to which the
Company is a party which have not been performed in whole and
which (i) provide for future payments to or by the Company exceeding,
in aggregate, € [●] or (ii) have a remaining term in excess of twelve
months from the date of this Agreement and provide for future
payments to or by the Company exceeding, in aggregate, € [●]
(collectively, the “Material Contracts”) are valid, binding and
enforceable against the Company in accordance with their terms, and
are in full force and effect.
(b) Except as set forth in Schedule 6.1.11, to the knowledge of the Seller,
the Company has not received as of the date hereof any written notice
that it is in default under or in breach of or is otherwise delinquent in
performance under any Material Contract and no event has occurred
that, with notice or lapse of time, or both, would constitute such a
default, except for breaches, failures of performance or defaults that
individually or in the aggregate have not had and could not reasonably
be expected to have a Material Adverse Effect.
(a) Except as set forth in Schedule 6.1.12, the Company: (i) has in full
force and effect all material permits, licenses or other authorizations
required under any applicable Law for the conduct of the Business as
currently conducted; and (ii) is in compliance in all material respects
with the provisions of such permits, licenses or authorizations, except
where failure to obtain, have, maintain or be in compliance with, such
permits, licenses or other authorizations, individually or in the
aggregate, has not had and could not reasonably be expected to have a
Material Adverse Effect.
(b) Except as otherwise provided in section 4.1: (i) no consent or
authorization of, or filing with or notice to, any Governmental Body is
required with respect to any such permit, license or authorization as a
result of the transactions contemplated by this Agreement; and (ii) none
of the terms and conditions of any the permit, license or authorization
set forth in paragraph (a) above will be subject to termination or
modification as a result of the transactions contemplated by this
6.1.13 Litigation. Except as set forth in Schedule 6.1.13, as of the date of this
Agreement there is no action, suit or proceeding against the Company that
individually involves or could be reasonably expected to involve a liability for
the Company exceeding € [●].
(a) Except as set forth in Schedule 6.1.14, all material Tax returns, reports
and forms required by any applicable state, local or foreign Tax Laws
to be filed by or on behalf of the Company prior to the date hereof have
been filed in a timely manner (within any applicable extension
(b) Except as set forth in Schedule 6.1.14, all Taxes shown to be due in
such returns, reports and forms have been paid in a timely fashion and
in full, or adequate provisions have been created in the Financial
(c) Except as set forth in Schedule 6.1.14, no claims are being asserted in
writing by any Governmental Body with respect to any Taxes of the
(a) Except as set forth in Schedule 6.1.15, all the employees of the
Company are regularly recorded in the appropriate books of the
Company, all in accordance with applicable Laws.
(b) Except as set forth in Schedule 6.1.15, (i) the Company has made all
filings and taken all actions required to be made or taken in respect of
its employees under applicable social security, labor and welfare Laws,
and (ii) all social security and welfare charges due under such Laws in
respect of such employees have been fully paid.
(c) As of the date hereof, there is not pending or existing, and to the
knowledge of the Seller there is not threatened, any strike, slowdown,
picketing or work stoppage.
6.2 Accuracy as at the Closing Date
The representations and warranties of the Seller contained in this article 6 shall
be true and correct in all material respects also as of, and as though made on, the
Closing Date, except for those representations and warranties that are given as of
a certain date or for a certain period, which shall be true and correct as of such
date or for such period, and except as affected by actions or transactions
contemplated herein or otherwise approved in writing by the Buyer or taken or
made in the ordinary course of the Business consistently with the applicable
provisions of this Agreement.
6.3 No Other Representations and Warranties
The representations and warranties of the Seller contained in this article 6 are in
lieu of all other representations and warranties however provided under
applicable Law and constitute all of the representations and warranties made by
the Seller in connection with the purchase and sale of the Shares and any other
transactions contemplated by this Agreement. In particular, except for the
representations and warranties contained in this article 6, the Seller does not
make any representations or warranties, and the Seller hereby disclaims any
other representations or warranties, whether made by the Seller, any of their
Affiliates, or any of their respective officers, directors, employees, agents,
advisors or representatives, with respect to the execution and delivery of this
Agreement or the transactions contemplated hereby, notwithstanding the
delivery or disclosure to the Buyer or its representatives of any documentation or
other information with respect to any one or more of the foregoing. Without
limiting the generality of the foregoing, the Seller makes no representation and
give no warranty to the Buyer with respect to financial projections, budgets or
management analyses and to the future profitability and financial performance of
7. REPRESENTATIONS AND WARRANTIES OF THE BUYER
7.1 Undertaking of the Buyer
The Buyer hereby makes the following representations and warranties to the
7.1.1 Organisation and Standing. The Buyer is a corporation duly incorporated,
validly existing and in good standing under the Law of its jurisdiction of
(a) All corporate and other actions required to be taken by, or on behalf of,
the Buyer to authorise it to enter into and to perform this Agreement
have been duly and properly taken; and this Agreement has been duly
executed and delivered by the Buyer and constitutes the valid and
binding obligations of the Buyer, enforceable against it in accordance
with its terms.
(b) Except as otherwise provided in Section 4.1, no application to, filing,
consent, authorisation, approval, license, permit, registration,
declaration or exemption granted by any supranational or
Governmental Body is required of the Buyer in connection with the
execution and performance of this Agreement.
7.1.3 No Conflict. The execution and delivery of this Agreement, and the
consummation of the transactions contemplated hereby, will not conflict with,
result in a breach of, constitute a default under, give rise to a right of
termination, cancellation or acceleration of the articles of association or the by-
laws of the Buyer; or of any agreement or instrument by which it is bound; or
violate any Law applicable to it.
7.1.4 Financial Resources. The Buyer has adequate resources, including financial
resources, to perform all of the obligations undertaken by it under this
7.1.5 Due Diligence.
(a) On the basis of the Buyer’s examination and analysis of all
information, data, events and circumstances relating to the Company,
its business, assets and liabilities, to the Shares, or otherwise relating to
the Company or to the subject matter of this Agreement, (i) that have
been disclosed to the Buyer, or its advisors, in the course of the Due
Diligence (ii) that have otherwise been disclosed or notified to it, or its
advisors, by the Seller, any Affiliate of the Seller, or their
representatives, directors, auditors, employees, advisors or officers
prior to the date hereof (irrespective of whether or not such events or
circumstances are mentioned herein), (iii) that are publicly available
through searches of any public register or any Governmental Body or
(iv) that are otherwise known by the Buyer prior to entering into this
Agreement, the Buyer is not aware of any inaccuracy or untruthfulness
of any of the representations and warranties of the Seller set forth in
(b) The Buyer is fully aware of the economic, financial and legal status of
the Company and has been given the opportunity to make the due
7.2 Accuracy as of the Closing Date
The representations and warranties of the Buyer contained herein shall be true
and correct as of, and as though made on the Closing Date.
8. INDEMNIFICATION OBLIGATIONS
8.1 Indemnification Obligation of the Seller
Subject to the provisions of this article 8, the Seller, as from the Closing Date
and subject to the occurrence of the Closing, shall indemnify and hold the Buyer
harmless in respect of the following:
(a) any and all costs or damages incurred or suffered by the Company
which would have not been so incurred or suffered had the
representations and warranties of the Seller contained in article 6
been true and correct;
(b) any and all direct damages suffered by the Buyer arising out or as a
result of any breach of the representations and warranties of the
Seller contained in sections 6.1.1, 6.1.2, 6.1.3 and 6.1.4 of this
Agreement, to the extent that such damages are not indemnifiable
under paragraph (a) preceding;
(c) any and all direct damages suffered by the Buyer arising out or as a
result of any breach of any obligation (different from the
representation and warranties contained in article 6) undertaken by
the Seller in this Agreement, to the extent that such damages are not
indemnifiable under paragraphs (a) and (b) preceding.
8.2 Procedure for the Request of Indemnification
If any event occurs which could give rise to the Seller’s obligation under section
8.1, the following provisions shall apply:
(a) without prejudice to the provisions of section 8.3(h), the Buyer shall
give written notice to the Seller of such event, under penalty of
forfeiture, within twenty-five (25) Business Days of the date on
which the Buyer or the Company becomes aware of the relevant
event (or, in the event that the relevant cost or damage derives out of
a third party claim, including any claim from any Governmental
Body, and the deadline for filing an appeal or opposition in respect
of such third party claim is less than the said twenty-five-Business
Day term, the written notice provided for in this section 8.2(a) shall
be given to the Seller by the Buyer within such shorter term as may
be appropriate in the circumstances), and shall provide all
reasonable details thereof, indicating the amount allegedly due from
the Seller in relation to such claim; any delay in giving such notice
shall relieve the Seller of its obligations under section 8.1. The
Buyer shall give the Seller or its duly authorised representatives
reasonable access to the personnel of the Buyer and/or the Company
(as the case may be) and to any premises, chattels, accounts,
documents and records which are relevant to such claim and are
within the power, possession or control of the Buyer and/or the
Company to enable the Seller and its duly authorised representatives
to investigate the claim and to examine and take copies or
photographs of the relevant assets;
(b) the Seller shall be entitled to challenge in writing the claim notified
by the Buyer according to the preceding paragraph (a), within
twenty-five (25) Business Days of the day of receipt of the notice
referred to in said paragraph;
(c) if the notice sent by the Buyer according to paragraph (a) is
challenged by the Seller in accordance with paragraph (b) preceding,
then during a period of twenty (20) Business Days following the
giving of the notice by the Seller under paragraph (b) preceding, the
Seller and the Buyer shall attempt to resolve any differences which
they may have with respect to any matters constituting the subject
matter of such notice. If, at the end of such period, the Seller and the
Buyer fail to reach an agreement in writing with respect to all such
matters, then all matters as to which an agreement is not so reached
may be submitted to arbitration pursuant to article 13.
8.3 Exclusions and Limitations
Notwithstanding any provision of this Agreement or of any applicable Law to
(a) the Seller shall not be obliged to indemnify the Buyer under section
(i) if the amount due in connection with any single occurrence giving
rise to indemnification pursuant to section 8.1 (after having taken
into account any and all applicable exclusions and limitations
provided for in this section 8.3) does not exceed [€ 15,000 (fifty
(ii) until the aggregate of all amounts that would otherwise be due
pursuant to section 8.1 (after having taken into account any and
all applicable exclusions and limitations provided for in this
section 8.3) exceeds [●%] of the Purchase Price provided that, if
such limit is exceeded, the Seller’s obligation to indemnify shall
be limited to the excess, and provided further that all sums in
respect of which the Seller's liability is excluded pursuant to
paragraph (i) above shall be disregarded for the purposes of the
threshold provided in this paragraph (ii);
(iii) if and to the extent that any cost or damage to be indemnified by
the Seller under section 8.1 is covered by any insurance policy of
the Buyer or the Company;
(iv) if and to the extent that any cost or damage to be indemnified by
the Seller under section 8.1 is paid or payable to the Buyer or the
Company, as the case may be, by any third party;
(v) if and to the extent that the acts, omissions, circumstances or
events giving rise to the costs and damages that could be
indemnifiable pursuant to section 8.1 have been disclosed in,
referred to, or resulting from any provision of this Agreement or
any schedules attached hereto;
(vi) in respect of any claim to the extent that it arises or is increased as
a result of any change in law (or change in the interpretation of
law) or in administrative practice of any Governmental Body
occurring after the date of this Agreement (irrespective of the
change purporting to be effective retroactively in whole or in
(vii) in respect of any claim to the extent that it arises or is increased as
a result of any change after the Closing Date in the accounting
bases, policies, practices or methods applied in the preparation of
any accounts or valuation of any assets or liabilities of the
Company from those used in preparing the Financial Statements.
(b) The Seller’s maximum aggregate liability under section 8.1 shall not
exceed in any case [●%] of the Purchase Price.
(c) In the event and to the extent that any cost or damage to be
indemnified by the Seller under section 8.1 is deductible by the
Buyer or by the Company for income tax purposes in any given
fiscal year, then, in such event and to such extent, the amount of any
cost or damage to be indemnified by the Seller under such section
8.1 will be reduced by:
(i) an amount equal to the tax benefit obtained by the Buyer by virtue
of such deduction (even if such tax benefit applies in subsequent
fiscal years); and
(ii) an amount equal to the tax benefit obtained by the Company by
virtue of such deduction (even if such tax benefit applies in
subsequent fiscal years).
(d) The amount of all indemnities payable by the Seller to the Buyer
pursuant to section 8.1 shall be further reduced by:
(i) any specific provision or any provision relating to the same
category as the event giving rise to indemnification recorded in
the Financial Statements;
(ii) the amount by which: (1) any liabilities, reserves or provisions
shown in the Financial Statements subsequently prove to have
been overstated or unnecessary; and (2) any assets (including
credits) of the Company, of any nature, existing at the reference
date of the Financial Statements, subsequently prove not to have
been reflected, or whose value subsequently proves to have been
understated, in the Financial Statements.
(e) In the case of any tax assessment that only results in the shifting of
the tax burden from one fiscal year to another, any indemnification
relating thereto shall be limited to the actual net and final cash cost
thereof incurred by the Company.
(f) In the event that, at any time between the Closing Date and the date
upon which the Seller’s obligation to indemnify for tax or social
security matters shall expire pursuant to paragraph 8.3(h) below, any
Law should be enacted having as an effect the right to settle, in
whole or in part, any tax or social security obligations of the
Company covered by the Seller’s indemnity obligation hereunder
(any such Law is hereinafter referred to as an “Amnesty”), the
following provisions shall apply:
(i) the Buyer shall promptly inform the Seller of any such Amnesty;
(ii) the Seller shall have the right to request the Buyer that the
Company avail itself of the Amnesty;
(iii) the Buyer shall have the right to determine (irrespective of any
request of the Seller under paragraph (ii) above), whether or not
the Company should avail itself of the Amnesty;
(iv) if the Buyer elects to cause the Company to avail itself of an
Amnesty without the prior agreement or request of the Seller, all
costs and expenses of such Amnesty shall be borne by the Buyer
or by the Company, without recourse against the Seller;
(v) if the Buyer elects to cause the Company to avail itself of an
Amnesty in agreement with the Seller or pursuant to the Seller’s
request hereunder, all costs and expenses of such Amnesty shall
be borne by the Seller without prejudice to any and all the
exclusions and limitations of the Seller's obligation to indemnify
set out in the other provisions of this section 8.3;
(vi) if the Buyer elects not to cause the Company to avail itself of the
Amnesty notwithstanding the Seller's request pursuant to
paragraph (ii) above, it shall be free not to do so, but the Seller’s
obligation to indemnify in respect of the matter constituting the
subject of such Amnesty shall be limited to the amount that would
have been paid by the Seller pursuant to paragraph (v) above had
the Buyer elected to cause the Company to avail itself of the
Amnesty in accordance with the Seller's request;
(vii) anything herein to the contrary notwithstanding, in the event that
the settlement of any tax or social security liability under an
Amnesty would reduce, or otherwise improve, the potential or
actual exposure of the Seller or of any directors, officers,
managers or employees of the Company under the provisions of
any applicable criminal Law, the Buyer shall be required to
comply with the request of the Seller under paragraph (ii) above,
and the provisions of paragraph (v) above shall apply.
(g) Notwithstanding any provision to the contrary contained in this
Agreement, the Seller shall not be required to indemnify the Buyer
under section 8.1 in respect of: (1) any indirect, special, punitive,
exemplary or consequential liability, cost or damage (such as – by
way of example only – those deriving from business disruption or
loss of revenue or profits), even if arising out any breach of the
representations and warranties of the Seller provided for in article 6;
(2) any contingent or potential liability of the Buyer or the Company
unless and until such liability has become actual and final and has
been paid for by the Company or has become the subject matter of a
final and incontestable obligation to pay of the Company.
(h) In no event shall the Seller be liable to the Buyer under section 8.1
in respect of:
(i) any actual or alleged breach of the representations and warranties
referred to therein (other than representations and warranties
referred to at paragraph (ii) below) which is notified to the Seller
pursuant to section 8.2(a) later than [●] months after the Closing
(ii) any actual or alleged breach of the representations and warranties
set forth in sections 6.1.14 (Taxes) which is notified to the Seller
pursuant to section 8.2(a) later than fifteen (15) Business Days
after the expiration of the statute of limitation applicable to the
events constituting the subject matter of the relevant
representation or warranty;
provided, however, that the Seller shall be liable to the Buyer under
section 8.1 only if, before the expiry of such periods, there shall have
been either (i) an actual loss suffered by the Buyer or the Company, or
(ii) a third party claim; and provided, further, that the Seller's obligations
under section 8.1 shall survive the expiration of the time limits set out
above in respect of any actual or alleged breach of the representations or
warranties of the Seller referred to therein which, as of the date of such
expiration, constitutes the subject matter of an arbitration proceeding
under article 13.
(i) The Parties agree that:
(i) any event that may give rise to a request by the Buyer for
indemnification for breach of the representations and warranties
of the Seller under article 6 may be the subject of the request for
indemnification only upon the specific representation or warranty
which is most closely connected to such event, any duplication of
representations or warranties for the same event being expressly
(ii) in no way may the Buyer seek indemnification for the same event
by claiming the breach of more than one representation or
warranty contained in article 6.
(j) Any indemnification due by the Seller to the Buyer shall be
computed without regard to any multiple, price-earnings or
equivalent ratio implicit in the negotiation of the Purchase Price.
Any indemnification due by the Seller to the Buyer shall not include
any decrease in value of the Shares or the Company, loss of
expected income by the Company or the Buyer, or any indirect or
(k) The Seller shall not be required to indemnify the Buyer under
section 8.1 in respect of any losses, costs or damages, if and to the
extent such losses, costs or damages would not have arisen for a
voluntary act, omission or transaction carried out by the Buyer or the
Company (after the Closing), or any of their successors in interest.
(l) The Seller shall not be liable to the Buyer under section 8.1 if and to
the extent the Buyer or the Company have not used their reasonable
efforts to mitigate any cost or damage resulting from a breach of any
representations or warranties of the Seller under this Agreement.
(m) If the Seller has made any payment according to this article 8 and
subsequently the Buyer or the Company recovers or has the right to
recover from any third party any amount for the same facts or
circumstances forming the basis of the Seller’s indemnification, then
the Buyer will pay or, as applicable, upon request of the Seller,
either assign, or procure the assignment of, that right to the Seller or,
if the Seller so directs, the Buyer will at the direction and cost of the
Seller pursue said recovery and pay to the Seller any monies or
(n) The Parties agree that the limitations and exclusions under sections
8.3(a)(i),8.3(a)(ii), 8.3(b) and 8.3(h). shall not apply to requests for
indemnification for breach of the representations and warranties of
the Seller contained in Section 6.1.1 (Organization and Standing),
6.1.2 (Authorization), 6.1.3 (No Conflict) and 6.1.4 (Ownership).
8.4 Handling of Third Parties Claims
If any breach of representations or warranties consists of claims, actions or
demands by third parties (including any tax authority or other Governmental
Bodies), the following provisions shall apply (subject to the term provided for in
(a) The Buyer shall give prompt written notice to the Seller of such
event and shall provide all reasonable particulars thereof, and any
delay in giving such notice shall relieve the Seller of their
obligations under section 8.1.
(b) The Seller shall have the right to undertake, at its expense and with
counsel of their own choosing, the defence of any claim, action, suit
or proceeding asserted or initiated against any of the Buyer or the
Company constituting the subject matter of a notice to the Seller of
the kind referred to under section 8.2(a). The Buyer may participate,
at its expense, in such defence with counsel of its own choosing
reasonably satisfactory to the Seller. In each case, the Buyer will
cooperate or cause the Company to cooperate with the Seller, so
long as the Seller are conducting the defence of the claim, action,
suit or proceeding, in the preparation for and the prosecution of the
defence of such claim, action, suit or proceeding, including making
available evidence within the control of the Company, and persons
needed as witnesses who are employed by the Company, in each
case as needed for such defence.
(c) In the event that the Seller does not undertake the defence of any
claim, action, suit or proceeding within a reasonable time after the
Buyer has given a notice of the kind referred to under section 8.2(a),
the Buyer shall properly and diligently defend, and shall cause the
Company to properly and diligently defend, such claim, action, suit
(d) Without prejudice to the provisions of paragraph (c) above, the
Buyer shall not and shall cause the Company not to make or accept
any settlement of any claim, action, suit or proceeding, nor shall
they make acquiescence thereto or, as the case may be, to any
demand, assessment, judgment or order constituting the subject
matter of a notice of the kind referred to under section 8.2(a), or, as
the case may be, having resulted from any such claim, action, suit or
proceeding, without the prior written consent of the Seller.
(e) If a firm offer is made to the Buyer or the Company to settle any
matter giving rise to the Seller’s obligation to indemnify under
section 8.1 which offer the Seller, but not the Buyer, are willing to
accept, the Buyer and the Company shall be free not to enter into
such settlement and to commence or continue litigation, at its own
expense, but the Seller's liability shall be limited to the amount of
the proposed settlement (subject to all exclusions and limitations
provided for in section 8.3).
8.5 Exclusive Remedy
The rights and remedies provided in this article 8 shall be exclusive and in lieu
of any other right, action, defence, claim or remedy of the Buyer, provided by
applicable Law or otherwise, however arising in connection with, or by virtue of,
any breach of the representations, warranties, undertakings and covenants of the
Seller contained in this Agreement. In particular, but without limitation, the
Buyer shall not have any right to terminate (risolvere), annul (annullare) or
rescind (rescindere) this Agreement or to refuse to effect the Closing or to start
the actions set forth in the articles 1492, 1494 and 1497 of the Italian Civil Code.
8.6 Indemnification Obligation of the Buyer
The Buyer shall indemnify and hold the Seller harmless from, against and with
respect to any and all costs and damages suffered by the Seller arising out, or as
a result, of any inaccuracy or breach of any representation or warranty made by,
or any breach of any obligation undertaken by, the Buyer in this Agreement.
9. OTHER COVENANTS
9.1 Directors and Auditors
Prior to or on the Closing Date, the Seller shall:
(a) cause all the directors of the Company to resign or otherwise cease
from office with effect as of the Closing Date;
(b) use its reasonable efforts to cause the (standing and alternate) members
of the board of statutory auditors (if any) of the Company to resign or
otherwise retire from office with effect as of the Closing Date; and
(c) cause the shareholders' meetings of the Company to be validly
convened on, or prior to, the Closing Date for the purpose of electing
new directors and (if appropriate) new statutory auditors in lieu of
those leaving office pursuant to paragraphs (a) or (b) above, all in
accordance with the Buyer's instructions to be notified to the Seller not
later than five (5) Business Days prior to the Closing Date.
9.2 Release of Directors and Auditors
9.2.1 The Buyer undertakes, also on behalf of its Affiliates and the Company pursuant
to article 1381 of the Code, not to initiate or permit to be initiated by the
Company or its shareholders any action, suit, claim or litigation against the
directors and/or statutory auditors of the Company who will have resigned from
office pursuant to section 9.1. Furthermore, the Buyer undertakes to hold
harmless and indemnify any such directors and auditors against any and all
liabilities, costs (including legal fees) and damages that may arise as a
consequence of any such action, suit, claim or litigation brought against them by
the Company, its shareholders, the Buyer’s Affiliates and any other Person(s)
under applicable Law relating to their offices as directors and/or auditors, as the
case may be, of the Company.
9.2.2 The undertakings of the Buyer set out in section 9.2.1 above shall be irrevocable
(within the meaning and for the purposes of article 1411 of the Italian Civil
Code) and shall remain in full force and effect until such time when any claim
against such directors and statutory auditors is barred by virtue of the expiration
of the applicable statute of limitations.
9.2.3 Without prejudice to the above provisions, at the Closing Date the Buyer shall
deliver to the Seller letters addressed to the directors and auditors of the
Company listed in Schedule 9.2.3 having the contents set out in Schedule 9.2.3-
bis (the "Release Letters").
10. NON COMPETITION
10.1 Undertakings of the Seller
Without prejudice to section 10.2 below and in lieu of any other obligation not to
compete provided under any applicable Law (including article 2557 of the
Italian Civil Code, if applicable), the Seller covenants and agrees that, during the
period commencing on the Closing Date and ending on the [second (2nd)
anniversary thereof], the Seller shall not and shall cause their Affiliates not to:
(a) directly or indirectly, engage in or carry on, anywhere in the territory of
[●], any business in the field of manufacture and/or selling Products;
(b) have any direct or indirect interest in any firm, partnership, joint
venture, corporation or unincorporated association which primarily
engages in or carries on any business, trade or venture of the kind
referred to in paragraph (a) preceding.
10.2.1 The restrictions contained in section 10.1 shall not apply to or prohibit:
(a) the acquisition or holding of shares amounting to less than five percent
(5%) of the capital of a company listed on any stock exchange and
which, either itself or through its subsidiaries, sell, anywhere in the
world, Products; or
(b) the acquisition or holding of shares in a company or other undertaking
which, either itself or through its subsidiaries, sell, anywhere in the
world, Products if such activities contribute less than twenty-five
percent (25%) of the annual sales of such company or undertaking.
10.2.2 For the avoidance of doubt the Parties further acknowledge that the restriction
contained in this article 10 shall not apply if the Closing does not take place for
any reason whatsoever.
Except as otherwise as required under any Law or rule issued by a Governmental
Body or other regulatory or stock exchange authority having jurisdiction over
the Buyer or the Seller or their respective Affiliates, no publicity, release or
announcement concerning the execution or delivery of this Agreement, any of
the provisions contained herein or the transactions contemplated hereby will be
issued without the prior written consent and approval, as to both form and
content, of the Seller and the Buyer, provided that such consent or approval
cannot be unreasonably withheld.
11.2 Confidentiality Agreement
For the avoidance of doubt, the provisions of this article 11 shall not in any way
amend, replace or supersede the confidentiality obligations undertaken by the
Buyer to the Seller, by virtue of the confidentiality agreement entered into on
[●], which will remain in full force and effect in accordance with its terms until
the Closing Date and will expire thereafter.
12. MISCELLANEOUS PROVISIONS
Except as otherwise provided in other clauses of this Agreement and without
prejudice to the representations and warranties of the Parties contained in articles
6 and 7, the provisions of article 8 (including without limitations section 8.3(h))
and, in general, all other clauses of this Agreement providing for any obligation
of the Parties to be performed after the Closing Date shall remain in full force
and effect after the Closing, without the necessity for either of the Parties to
reiterate or otherwise confirm its commitment with respect thereto.
12.2 Entire Agreement. Changes in Writing.
(a) constitutes the entire agreement between the Parties with respect to
the subject matter hereof and supersedes all prior agreements (if
any) relating to the same subject matter, including the binding offer
made by the Buyer and mentioned in recital E hereof;
(b) may not be waived, changed, modified or discharged orally, but only
by an agreement in writing signed by the Party against whom
enforcement of any such waiver, change, modification or discharge
12.3 Assignment. No Third Party Beneficiaries.
12.3.1 This Agreement and all of the provisions hereof shall be binding upon and inure
to the benefit of each of the Parties hereto and their respective successors, and
such successors shall have the benefit of the indemnities set forth in article 8
12.3.2 Neither Party may assign any of its rights interests or obligations hereunder
without the prior written consent of the other Party and any attempt to assign this
Agreement without such consent shall be void and of no effect.
12.3.3 Except as otherwise expressly provided for herein, nothing in this Agreement
shall confer any rights upon any Person which is not a Party or a successor of
any Party to this Agreement.
Any communication or notice required or permitted to be given under this
Agreement shall be made in writing by registered mail return receipt requested
or by express courier, in Italian or English, and shall be deemed to have been
duly and validly given if addressed, in each case, as follows:
(a) if to the Seller, to it at:
(b) if to the Buyer, to it at :
or at such other address as either Party may hereafter furnish to the other by
written notice, as herein provided.
12.5 Applicable Law
This Agreement shall be governed by, and construed and interpreted in
accordance with the Laws of the Republic of Italy.
12.6.1 Unless otherwise provided for in this Agreement, any payment due by any Party
to the other Party, according to the provisions of this Agreement, including the
payment of the Purchase Price, shall be made on the due date thereof, with value
at such date, in immediately available funds by wire transfer to the bank account
designated by the payee at least three (3) Business Days prior to the date on
which the payment is due (which transfer shall be confirmed in writing to the
payee by a primary credit institution reasonably acceptable to the same) or by
such other method as the payee may reasonably request at least three (3)
Business Days prior to the date on which the payment is due.
12.6.2 Unless otherwise provided for in this Agreement, without prejudice to any other
right or remedy provided by applicable Law or otherwise, in the event of a delay
(including any delay due to causes of force majeure) in the payment of any
amount to be paid under this Agreement, interest shall be due, for the period of
such delay, at a rate per annum equal to two hundred and fifty (250) basis points
over the Agreed Rate.
12.7 Wagering Agreement (Contratto Aleatorio)
The Parties agree that this Agreement shall be deemed to be a wagering
agreement (contratto aleatorio) for the purposes of article 1469 of the Italian
Civil Code; therefore, the Parties expressly agree and acknowledge that the
remedies provided for in articles 1467 and 1468 of the Italian Civil Code shall
not apply to this Agreement.
Except for certain documents contained in the Schedules hereto, which are in
languages other than English, this Agreement shall be executed in English,
which shall be the only language governing this Agreement.
12.9 Taxes and Other Expenses
Except as otherwise expressly provided in other clauses of this Agreement, any
cost, tax, impost, duty or charge arising in connection with the transactions
contemplated by this Agreement, shall be borne and paid as follows:
(a) any income or capital gain taxes due as a consequence of the sale
and purchase of the Shares shall be borne and paid for by the Seller;
(b) the Buyer and the Seller shall each pay the own fees, expenses and
disbursements incurred in connection with the negotiation,
preparation and implementation of this Agreement, including
(without limitation) any fees and disbursements owing to their
respective auditors, advisors and legal counsel;
(c) all other costs, expenses, taxes, including transfer and registration
taxes for the sale and purchase of the Shares, duties or charges
(including the notarial fees) shall be borne and paid for by the
12.10.1 All Schedules attached to this Agreement are incorporated herein and make a
part hereof as fully as if written in this Agreement.
12.10.2 Any item disclosed in connection with any specific provisions of this Agreement
shall be deemed to have been disclosed also in response to any other provisions
in respect of which such disclosure may be relevant or appropriate.
12.11 No Inducement or Reliance. Independent Assessment.
With respect to the Company and any rights or obligations to be transferred
hereunder or pursuant hereto, the Buyer declares and states that it has not been
induced by and has not relied upon any representations, warranties or statements,
whether express or implied, made by the Seller, any Affiliate of the Seller or any
of their agents, employees, attorneys, advisors or other representatives or by any
other Person representing or purporting to represent the Seller, that are not
expressly set forth in this Agreement, whether or not any such representations,
warranties or statements were made in writing or orally, and none of the Seller,
any Affiliate of the Seller, or any agent, employee, attorney, advisor or other
representative of the Seller or other Person shall have or be subject to any
liability to the Buyer or any other Person resulting from the distribution to the
Buyer, or Buyer’s use of, any such information.
If any of the provisions of this Agreement is or becomes invalid, illegal or
unenforceable under the laws of any jurisdiction, the validity, legality or
enforceability of the remaining provisions shall not in any way be affected or
impaired. The Parties shall nevertheless negotiate in good faith in order to agree
the terms of mutually satisfactory provisions, achieving as closely as possible
the same commercial effect, to be substituted for the provisions so found to be
void or unenforceable.
12.13 Further Assurances
Each Party to this Agreement covenants and agrees that it will, at the request and
expense of the requesting Party, execute and deliver such documents, including,
without limitation, all such additional conveyances, transfers, consents and other
assurances and do all such other acts and things as the other Party hereto, acting
reasonably, may from time to time request to be executed or done in order to
evidence better or perfect or effectuate any provision of this Agreement or of
any agreement or other document executed pursuant to this Agreement or any of
the respective obligations intended to be created hereby or thereby.
13.1 Appointment of Arbitrators
All disputes arising out of or in connection with this Agreement shall be finally
settled by arbitration under the Rules of Arbitration of the National Chamber of
National and International Arbitration of Milan. The arbitration panel shall
consist of three arbitrators (each an “Arbitrator”) appointed in accordance with
such Rules by the Chambers of Arbitration, independent by the number of the
Parties. The decision of the Arbitrators will be made in accordance with the
applicable principles of law and shall have the force and effect of a judicial
decision between the Parties in accordance with the applicable provisions of the
Italian Code of Civil Procedure. The place of arbitration shall be Milan, Italy.
The language to be used in the arbitral proceedings shall be Italian.
13.2 Arbitration Expenses
The expenses of the arbitration proceedings referred to in section 13.1 shall be
borne by the Parties in accordance with the applicable determinations of the
13.3 Election of Domicile
The Seller and the Buyer hereby designate their respective addresses for the
giving of notice, as set forth in section 12.4, as their respective domiciles at
which service of process may be made in any arbitration, legal action or
proceeding arising hereunder. The Seller and the Buyer may change such
13.4 Exclusive Jurisdiction
Without prejudice to the provisions of section 13.1 and to the jurisdiction of the
Arbitrators contemplated thereby, the Seller and the Buyer hereby submit to the
exclusive jurisdiction of the courts of Milan (Italy) any legal suit, action or
proceeding in connection with this Agreement which, under applicable Law, can
not fall within the jurisdiction of the Arbitrators.