ADDENDUM 2
TO THE SHARE AND PURCHASE AGREEMENT
BETWEEN
ASW International I, BV a company organized under the laws of The
Netherlands, with outstanding capital of 18.151,21 Euros and its
registered office in (1083 HK) Amsterdam, The Netherlands, at
Xxxxxxxxxxxx 00 BG, with BV number 604.699, registered with the Chamber
of Commerce for Amsterdam under number 33294385 (the "Seller"),
represented herein by Xx. Xxxxxx X. Xxxxx, duly authorized in accordance
with board of directors resolution of AS International Inc in its
capacity as managing director of the Seller, dated February 5, 2003, a
copy of which is attached as Annex A hereto.
- on the one side -
AND
Maberfin S.p.A. a company organized under the laws of Italy, with
outstanding capital of 1,238,400 Euro and its registered office in Ponte
San Pietro (BG) at Via Xxxx Xxxxxxx 4 (the "Former Purchaser"),
represented herein by Xx. Xxxxxxx Xxxxxxxxxx, duly authorized in
accordance with board of directors resolution of Maberfin S.p.A., dated
February 3, 2003, a copy of which is attached as Annex B hereto and CROWN
EXECUTIVE AVIATION LIMITED, a private limited company organized under the
laws of the United Kingdom with its registered office located at 00
Xxxxxxxxxxx Xxxxxxxx, Xxxxxxxxxxx, Xxxxxx, XX000XX Xxxxxxx (the
"Purchaser") represented by Xx. Xxxxx Xxxxxxxxxxxx, duly empowered to
execute this Agreement pursuant the by-laws of Crown Executive Aviation
Limited, a copy of which is attached hereto as Annex C hereto and.
- on the other side -
(hereinafter, collectively, referred to as the "Parties")
Whereas
On February 11, 2003, the Seller and Former Purchaser have signed a Share
and Purchaser Agreement (the "SPA") for the purchase of ASW International II,
BV, a company organized under the laws of The Netherlands, with outstanding
capital of 22.689,01 Euros and its registered office in (1083 HK) Amsterdam, The
Netherlands, at Xxxxxxxxxxxx 00 BG, with BV number 604.778, registered with the
Chamber of Commerce for Amsterdam under number 33294386 ("ASW-II)");
On February 17, 2003, the Seller and the Former Purchaser have signed a
first Addendum to the SPA;
The parties hereto desire to further amend the Share and Purchase
Agreement to provide for the substitution of Purchaser for Former Purchaser;
Unless otherwise indicated herein, capitalized terms shall have the same
meaning attributed to them in the SPA
NOW, therefore, the Parties hereto agree as follows:
Article 1
Substitution of Purchaser for Former Purchaser
The Parties hereby agree that the SPA shall be amended to provide that
all rights and duties of Former Purchaser shall be assigned and delegated to
Purchaser as if it were the original Purchaser in the SPA and Former Purchaser
releases and discharges the Seller from any duties, obligations, representations
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or warranties to it as contained in the SPA. Additionally, Former Purchaser
represents that it has provided to Purchaser all information gathered by it to
date as a result of its due diligence. The obligation to provide the Advance
Payment pursuant to Paragraph 2.3(i) of the SPA has been accomplished by Former
Purchaser and is assigned to Purchaser. The Special Withdrawal Right contained
in Paragraph 3.2 has lapsed without being exercised. Purchaser and Former
Purchaser have already agreed with a separate contract the consideration for the
assignment of the Agreement.
Article 2
Substantive Amendments to the SPA
The parties hereby further agree that the SPA will be amended or
partially amended in the following respects:
"1.6 Definitions.
"Purchaser's Representative" means Xx. Xxxxxx Mondino, a
representative selected by Purchaser to be kept informed of Speedline's
and Subsidiaries' day-to-day and ordinary management, as set forth in
Article 5;"
"7.2 Due Incorporation of Purchaser.
The Purchaser is a limited corporation duly incorporated, validly
existing and in good standing under the laws of England."
"8.2 Antitrust Filing. The Purchaser shall make, with the assistance of
the Seller, any antitrust filing under applicable Laws in respect of the
purchase of ASW-II, Speedline and the Subsidiaries as well as any and all
transactions contemplated in this Agreement and shall assume any risk and
indemnify and hold Seller harmless for any loss, cost or liability for
Purchaser's failure to do so prior to the Closing."
"11.1 Expenses of Sale.
The Seller on one hand, and the Purchaser on the other, shall bear their
own direct and indirect costs and expenses, including, without
limitation, any filing fee or expenses, fees and expenses of all
attorneys, accountants and other professionals, incurred in connection
with the negotiation and preparation of this Agreement, and the
completion and performance of the transactions contemplated herein. All
reasonable and customary costs and expenses of sale and closing the
transactions contemplated by this Agreement shall be paid by the
Purchaser including, without limitation, any and all notarial fees and
expenses and stamp duties, excluding, however, any fees or expenses of
the Seller's attorneys, accountants and advisors (the "Closing Costs"),
only as long as the size of costs and expenses and stamp duties of the
sale and closing in The Netherlands is equivalent to the costs, expenses
and duties it would involve in case sale and closing took place in Italy
or England. Any costs, expenses and duties in excess should be born
entirely by the Seller. "
"12.1 Notices.
Any notice, notification or other communication required or permitted to
be given hereunder shall be, in writing, and shall be delivered in
person, transmitted by courier, or registered mail receipt return,
telegram, telefax with receipt confirmation, and addressed as follows:
(b) if to the Purchaser to:
Xx. Xxxxx Xxxxxxxxxxxx
Crown Executive Aviation Ltd.
00 Xxxxxxxxxxx Xxxxxxxx
Xxxxxxxxxxx, Xxxxxx
XX00 0XX
Fax no.: +44.2088746619
Tel no.: +44.2088740927
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CC: Xx. Xxxxxxx Xxxxx
Xxxxx Briolini Felli
Xxx Xxxxx 0
00000 Xxxxxxx Xxxxx
Fax no. 000-000000
Tel no.: 000-000000
* * *"
Article 3
No Other Amendment
The Parties acknowledge that all the other provisions of the SPA remain
valid and enforceable and that this Amendment shall not give rise to a
"novation" or amendment of any other provisions of the SPA or used for
interpretation or construction of any term or conditions contained in the of the
SPA.
Article 4
Counterpart Execution
The Parties acknowledge that this Amendment may be executed in
counterpart and shall be deemed fully executed when each party has executed at
least one counterpart. Additionally, this Amendment may be signed by faxed
signatures and shall be deemed signed when a fax signed copy has been
transmitted to the other party.
* * * * *
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
by officers duly authorized hereunto as of the date first above written.
For the Seller:
ASW International I, BV
By: AS International, Inc
By: /S/ Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
For the Former Purchaser:
Maberfin S.p.A.
By: /S/ Xxxxxxx Xxxxxxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Member of the Board and Authorized Representative
For the Purchaser
Crown Executive Aviation Limited
By:
-----------------------------
Name: Xxxxx Xxxxxxxxxxxx
Title: Sole Director
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