SHARE AND PURCHASE AGREEMENT
This agreement is dated February 11, 2003, and is
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 "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.
- on the other side -
(hereinafter, collectively, referred to as the "Parties").
WHEREAS
a) Speedline S.r.l. ("Speedline") is a company organized under
the laws of Italy, with outstanding capital of Euro 18,091,580
with its registered office in Xxxxxx xx Xxxxx Xxxxx xx Xxxx,
Xxxxxx, Xxxxx, Via Salgari 6;
b) Speedline is a wholly-owned subsidiary 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)"). ASW-II is a
wholly-owned subsidiary of the Seller;
c) Speedline is, inter alia, engaged in the business of
manufacturing, distribution and sale of aluminum, magnesium and
alloy wheels and hubcaps and other fittings for the automotive
industry (the "Business");
d) the Purchaser is interested in acquiring the Business;
e) the Seller owns all the Shares of ASW-II (as hereinafter defined)
and has offered the Purchaser to acquire the Business by way of
the acquisition of the Shares, and the Purchaser is consequently
accepting to acquire the Shares as a mean to acquire Speedline srl
and the Business, upon the terms and subject to the conditions
hereinafter set forth;
f) the Purchaser has started a due diligence review of ASW-II,
Speedline and the Subsidiaries (as hereinafter defined) since
February 3, 2003.
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NOW, therefore, the Parties hereto agree as follows:
Article 1
Definitions / Terms of Construction
1.1 Gender and Number.
Any reference in this Agreement to gender shall include all genders, and
words importing the singular number only shall include the plural and
vice versa.
1.2 Headings.
The provision of a table of contents, the division of this Agreement into
Articles, Sections, subsections, paragraphs and other subdivisions, and
the insertion of headings, are for convenience of reference only and
shall not affect or be utilized in the construction or interpretation of
this Agreement.
1.3 Annexes and Exhibits.
Each of the recitals to this Agreement and each of the Annexes and
Exhibits attached hereto shall constitute an integral and substantial
part of this Agreement.
1.4 Currency.
Unless otherwise specifically indicated, all payments to be made under
this Agreement shall be made in US Dollars.
1.5 Adverse Construction.
This Agreement and the language in all parts herein shall in all cases be
construed as a whole, according to their fair meaning, and no presumption
shall be inferred or implied that the terms hereof be more strictly
construed against one Party as opposed to another by reason of the rule
of construction in which a document is to be construed more strictly
against the Party who has prepared the same, it being agreed and
acknowledged that the Parties and their representatives have participated
in the drafting and negotiation of this Agreement.
1.6 Definitions.
The words "hereof", "herein", "hereby" and other words of similar import
refer to this Agreement and its Exhibits, Annexes and other documents
attached hereto;
The following terms shall have the respective meanings set forth below:
"Agreement": means this Share Purchase Agreement and all annexes, exhibits,
and other documents attached hereto.
"Amcast": means Amcast Industrial Corporation with offices at 0000
Xxxxxxxxxx Xxxxxxx Xxxxx, Xxxxxx, Xxxx 00000 XXX, the indirect parent
company of the Seller.
"Amcast Affiliates": means all companies pertaining to Amcast group or
participated by Amcast.
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"Antitrust Authority": means the Autorita Garante della Concorrenza e del
Mercato, having an office in Rome, Italy or any other antitrust authority
having jurisdiction over the transactions contemplated herein.
"Annex": means any attachment, schedule, annex and information or document
contained in or attached to this Agreement.
"Business": as defined in the recitals to this Agreement.
"Business Day": means any calendar day, other than Saturday, Sunday and
public holidays in Italy and The Netherlands.
"c.c.": means the Italian Civil Code.
"Closing": means the transfer of the Shares through the execution of the
Deed of Transfer, the payment of the Purchase Price pursuant to Section
2.2, and, in general, the execution and exchange of all documents and
agreements and the performance and consummation of all obligations and
transactions required to be executed and exchanged and performed and
consummated on the Closing Date pursuant to this Agreement.
"Closing Date": means March 17, 2003, or the any preceding or following
date, as indicated by the Purchaser and communicated to the Seller and the
Notary with at least 3 (three) Business Days prior written notice, it being
understood that such Closing Date shall not be later than April 14, 2003.
"Closing Costs": as defined in Section 11.1 hereof.
"Confidential Information": as defined in Section 9.1 hereof.
"Counter Guarantees": as defined in Section 8.1 hereof.
"Deed of Transfer": as defined in Section 4.1 hereof.
"Employees": means all the employees of Speedline and the Subsidiaries as
of the date hereof.
"Euro": means the currency of the European Union.
"Knowledge" or "Seller's Knowledge": means matters actually known by the
directors, president, chief executive officer or chief financial officer of
the relevant company, as the case may be.
"Law" or "Laws": means all statutes, codes, ordinances, decrees, rules,
regulations, municipal by-laws, judicial or arbitral or administrative or
ministerial or departmental or regulatory judgments, orders, decisions,
rulings or awards, or any provisions of such laws, binding on or affecting
the Person referred to in the context in which such word is used; and "Law"
means any one of them.
"Notary": means Ms. Carolien Xxxxxxx Xxxxx a civil law notary in Amsterdam,
The Netherlands of the firm Lexence, Amsterdam, The Netherlands or such
other substitute in Amsterdam, The Netherlands that the Purchaser may
recommend and the Seller agree, which agreement shall not be unreasonably
denied.
"Party" or "Parties": the Purchaser or the Seller or both, as the context
may require.
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"Person": means any natural person, firm, partnership, association,
corporation, trust, public body or government.
"Purchase Price": as defined in Section 2.2 hereof.
"Purchaser Loan": as defined in Article 2.3 hereof.
"Purchaser's Representative" means Xx. Xxxxxxx Xxxxxxxxxx, 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;
"Remaining Purchase Price" as defined in Section 2.3 (ii) hereof.
"Shares": means the registered shares representing the entire outstanding
capital and ownership interests in ASW-II.
"Speedline": as defined in the recitals to this Agreement.
"Subsidiaries": means the direct and indirect subsidiaries of Speedline, as
set forth in Annex 6.2.
"United States Dollars" or "US$": means the legal currency of the United
States of America.
"Withdrawal Time Limit": as defined in Article 3 hereof.
Article 2
Sale and Purchase
2.1 Scope of the Agreement.
On the Closing Date, the Seller shall sell to the Purchaser, and the
Purchaser shall purchase from the Seller, or procure the purchase from
the Seller by a third party (provided that such third party is controlled
by the Purchaser or by the Mazzucconi family) of, all of the Shares and
the ownership by executing the Deed of Transfer and performing the
Closing.
2.2 Purchase Price.
2.2.1 The Parties agree that should the Closing take place on or prior March
17, 2003, the Purchaser shall pay to the Seller, as consideration for the
sale and transfer of the Shares, a purchase price equal to US$
3,000,000.00 (three million) or to such increased amount as set forth in
Section 2.2.2 (the "Purchase Price"), without any post closing
adjustment.
2.2.2 The Parties further agree that should the Closing take place in the
period March 17, 2003 - April 14, 2003 the Purchase Price shall increase
as follows:
- if Closing takes place in the period (and including) March 18,
2003 - March 24, 2003, the Purchase Price shall be equal to US$
3,250,000.00 (three million two hundred fifty);
- if Closing takes place in the period (and including) March 25,
2003 - March 31, 2003, the Purchase Price shall be equal to US$
3,500,000.00 (three million five hundred);
- if Closing takes place in the period (and including) April 1, 2003
- April 7, 2003, the Purchase Price shall be equal to US$
3,750,000.00 (three million seven hundred fifty);
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- if Closing takes place in the period (and including) April 8,
2003 - April 14, 2003, the Purchase Price shall be equal to US$
4,000,000.00 (four million).
2.3 Payment of the Purchase Price.
The Purchase Price shall be paid by the Purchaser to the Seller as
follow:
(i) The Purchaser undertakes to pay not later than February 12 (time
being of the essence) to the Seller an amount of US$ 2,000,000.00
(two million) as advance payment of the Purchaser Price ("Advance
Payment") by wire transfer, in immediately available funds in the
bank account no. c/a 59.78.03.250 opened in the name of Seller at
ABN AMRO Bank or in a manner specified by the Seller. These funds,
less any Dutch taxes on capital investments, shall be immediately
be contributed to the capital account of ASW International II, BV
to be used exclusively for loans to Speedline as set forth in
Section 2.4 below.
(ii) The Purchaser undertakes to pay and transfer not later than 1
(one) day prior to the Closing Date the Remaining Purchase Price
by delivering to the Seller one or more registered bank cheques,
in the name of the Seller, for an amount equal to the Remaining
Purchase Price. Then, the Seller shall deliver to the Notary a
letter stating that the Purchase Price has been entirely paid and
the Parties shall complete the Closing by executing the Deed of
Transfer through their authorized representatives.
2.4 Undertaking at Signing
No later than 2 (two) days after receipt of Advance Payment indicated in
Section 2.3(i) above, the Seller shall pay and contribute to the capital
of ASW-II an amount of TWO MILLION UNITED STATES DOLLARS (US$
2,000,000.00), less any Dutch taxes for such capital contributions, and,
from time to time, also upon a binding request by the Purchaser
Representative, but in any event on the date of any notice of withdrawal
by Purchaser, cause ASW-II to lend to Speedline the same amount in
immediately available funds in a Speedline bank account to be specified
by Speedline as an interest (4%) bearing loan repayable at Speedline's
discretion on or before December 31, 2003 ("Additional Seller Loan").
Article 3
Withdrawal Right
3.1 Withdrawal Right.
3.1.1 The Purchaser has already started a due diligence review of ASW-II,
Speedline and its Subsidiaries also through the Purchaser's
Representative. Ultimately on the basis of the results of such a due
diligence, the Purchaser shall have the right to withdraw from Closing,
by giving written notice to the Seller, at least, 1 (one) Business Day
prior to the Closing Date ("Withdrawal Time Limit", such time period
being of the essence). In this respect, if the Purchaser gives notice of
withdrawal, then the Closing shall not take place and Seller shall be
entitled to retain an amount of ONE MILLION UNITED STATES DOLLARS
(US$1,000,000.00) out of the amount received as Advance Payment, as
consideration of the exercise of Purchaser's withdrawal right from
Closing, whereas the Seller shall return to the Purchaser the remaining
ONE MILLION UNITED STATES DOLLARS (US$1,000,000.00) out of the amount
received as Advance Payment by immediately causing ASW-II to assign the
Purchaser the right to repayment by Speedline of the corresponding quota
of the Additional Seller Loan, including interests accrued; in such a
case, such loan (i.e., US$ 1 million) shall be repaid by Speedline not
later than December 31, 2003 and shall be secured (simultaneously with
the assignment) by a security interest in certain Speedline accounts
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receivable designated by Speedline from time to time, with right of
substitution, to the fullest extent allowable under Italian Laws, for an
aggregate amount of one (1) million US Dollars and the Seller shall
procure that such security too is assigned to the Purchaser.
3.1.2 The Parties agree that after the expiry of the Withdrawal Time Limit
without Seller's receipt of the withdrawal notice indicated above, the
Closing shall occur, it being understood that should Purchaser not
complete the Closing, Seller shall be entitled to receive the Penalty For
Withdrawal, as set forth in Section 3.1.1 above.
3.2 Special Withdrawal Right.
Notwithstanding the provision of Section 3.1, the Purchaser shall have a
special right to withdraw from Closing without obligation to pay any
penalty, by giving written notice to the Seller no later February 17,
2003 ("Special Withdrawal Time Limit", such time period being of the
essence). The Purchaser shall be entitled to such Special Withdrawal
Right exclusively in case the due diligence review of ASW-II reveals any
material liabilities of ASW-II, including joint or indirect liabilities,
any significant tax risks or any material costs or disadvantages involved
in disassembling or liquidating ASW-II or transferring Speedline or the
Shares to an Italian entity. In this respect, if the Purchaser gives
notice of Special Withdrawal Right, then this Agreement shall be
terminated, the Closing shall not take place and Seller shall return to
the Purchaser the full amount of TWO MILLION UNITED STATES DOLLARS
(US$2,000,000.00) which the Seller received as Advance Payment, by
immediately causing ASW-II to assign the Purchaser the right to repayment
by Speedline of the Additional Seller Loan, including interests accrued;
such loan shall be repaid by Speedline not later that December 31, 2003
and shall be secured (simultaneously with the assignment) by a security
interest in certain Speedline accounts receivable designated by Speedline
from time to time, with right of substitution, to the fullest extent
allowable under Italian Laws, for an aggregate amount of TWO (2) million
US Dollars, and the Seller shall procure that such security too is
assigned to the Purchaser.
Article 4
Closing Mechanics
4.1 Deed of Transfer.
On the Closing Date, the Parties shall execute the transfer of the Shares
by entering into a notarial deed of transfer, substantially in the form
of Annex 4.1 (the "Deed of Transfer"), before the Notary, and in
accordance with applicable Laws and formalities in The Netherlands, it
being understood that the Parties shall continue to be bound by all the
provisions of this Agreement notwithstanding that some of these
provisions may not be expressly reflected in the Deed of Transfer. It is
also understood that, in case of discrepancies between this Agreement and
the Deed of Transfer, the provisions of this Agreement shall prevail to
the extent permitted by applicable Law.
4.2 Filing with the Trade Register of the Chamber of Commerce.
The Parties shall instruct the Notary to fulfill promptly all the
formalities required in order to, as soon as possible after the execution
of the Deed of Transfer, annotate the name of the Purchaser as registered
owner of the Shares in the shareholder records of ASW-II and with the
Traderegister of the Chamber of Commerce register the Purchaser's
Director (as hereinafter defined) as statutory director of ASW-II in
accordance with Section 4.3(c) hereof.
4.3 Seller's Deliveries and Obligations.
On the Closing Date, the Seller shall:
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a) deliver a certified copy of the corporate resolutions of the Seller
approving the entering into of this Agreement and the completion of
all transactions contemplated hereunder substantially in the form of
Annex 4.3(a) attached hereto;
b) deliver a legal opinion letter, substantially in the form of
Annex 4.3(b), certifying the powers of the Seller's authorized
representative;
c) pass a shareholder resolution to accept the resignation of Seller as
statutory director of ASW-II and appoint a director who shall have
been designated and notified by the Purchaser to the Seller at least
three (3) Business Days prior to the Closing Date (the "Purchaser
Director") as statutory director of ASW-II;
d) deliver letters of resignation from Xxxxx X. Xxxx, Xxxxxx X. Xxxxx
, Xxxxxxx X. Xxxx, and Xxxxxx X. Xxxx as members of the board of
directors of Speedline and any of the Subsidiaries of which
they are directors, and cause AS International, Inc. to resign
as managing director of ASW-II, or cause otherwise the
cessation from office of such directors as of the Closing Date;
e) appoint as members of the board of directors of Speedline and its
Subsidiaries, those members who shall have been identified by the
Purchaser and notified to the Seller at least three (3) Business
Days prior to the Closing Date;
f) use its best reasonable efforts to cause the (actual and alternate)
members of the board of statutory auditors of Speedline and the
Subsidiaries to resign from office on or as of the Closing Date;
g) deliver to the Purchaser all the corporate and accounting books
and records of ASW-II, Speedline and the Subsidiaries.
4.4 Purchaser's Deliveries and Obligations.
On the Closing Date, the Purchaser shall:
a) deliver a certified copy of the corporate resolutions of the
Purchaser approving the entering into of this Agreement and
the completion of all transactions contemplated hereunder;
b) deliver a legal opinion letter, substantially in the form of Annex
4.4(b), certifying the powers of the Purchaser's authorized
representative;
c) deliver letters duly signed by the Purchaser containing full
releases for the resigning members of the board of directors and
board of auditors of ASW-II, Speedline and the Subsidiaries as well
as indemnification obligations in favor of all such directors and
auditors, to the extent permitted by applicable Laws;
d) provide and deliver the releases or the Counter Guarantees pursuant
to the terms of Section 8.1 hereof.
Article 5
Interim Management
5.1 Interim Management.
During the period from the date hereof until the Closing Date, or the
receipt of notice of withdrawal by Seller as per Article 3 hereof, the
Purchaser Representative shall have full access to Speedline and
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Subsidiaries' premises and shall be kept informed of the day-to-day and
ordinary management of Speedline and its Subsidiaries.
The Parties specifically agree that the Seller shall not and shall cause
Speedline and its Subsidiaries not to carry out the following actions
without the consent of the Purchaser Representative (which consent shall
be given in good faith within 24 hours from the request - the Parties
agree no reply or a reply after the expiration of such term shall be
deemed an implied consent - and may be not be unreasonably withheld or
denied):
a) make quotations of products to be sold to OEM customers
b) execute long term supply agreement;
c) hire or fire any managers or key consultants or increase the rate
of compensation payable or to become payable to any employees or
key consultants, other than (i) una tantum payments (the cost of
which is borne by the Seller) or (ii) increases made in accordance
with normal past practice or mandated by Law;
d) resolve capital expenditures in excess of EURO one hundred
thousand ((euro)100.000,00=).
Article 6
Representations and Warranties of the Seller
To Seller's Knowledge, the following representations and warranties are true and
correct in all material aspects as of the date hereof and they shall be true and
correct in all material respects as of the Closing Date:
6.1 Authority to Sign and Conflicts of Interest.
Subject to approval of this Agreement and the transactions contemplated
herein by the board of directors of Amcast, the Seller has all requisite
power, authority and approval required to enter into, sign, and deliver
this Agreement and to perform fully the Seller's obligations hereunder.
This Agreement has been duly executed and delivered by the Seller and
constitutes valid and legally binding obligations of the Seller,
enforceable in accordance with its terms. Neither the execution and
delivery of this Agreement nor the completion or performance of any of
the obligations and/or transactions contemplated herein will:
a) breach the articles of association or other constitutional documents,
by-laws or any directors' resolution of the Seller, or
b) contravene, conflict with, or result in a violation of any law or
regulation, order, judgment, writ, injunction, decree, statute to
which the Seller may be subject.
6.2 Due Incorporation of ASW-II, Speedline
ASW-II is a corporation duly incorporated under the laws of The
Netherlands. Speedline is a corporation duly incorporated under the laws
of Italy and has full corporate power and authority to own its
properties. Annex 6.2 sets forth a true and complete list of all the
Subsidiaries, permanent establishments and all locations where Speedline
or any of the Subsidiaries maintains a branch or a representative office
included in the Business. Correct and complete copies of the deed of
incorporation and of the current by-laws of each of ASW-II, Speedline and
the Subsidiaries have been previously provided to the Purchaser.
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6.3 Title to the Shares.
The Shares are owned by the Seller as the registered and beneficial owner
thereof with a good and valid title thereto. The Shares are held free and
clear of all liens and encumbrances. The delivery to the Purchaser of the
Shares pursuant to the provisions of this Agreement will transfer the
Shares to the Purchaser free and clear of all security interests,
options, equities, claims, pre-emption rights or other third party
rights, restrictions and claims of every kind. ASW-II owns all the quotas
of Speedline free and clear of all liens and encumbrances and Speedline
owns the participation in the Subsidiaries, free and clear of any lien.
Article 7
Representations and Warranties of the Purchaser
To Purchaser's Knowledge, the following representations and warranties are true
and correct in all material respects as of the date hereof and they shall be
true and correct in all material respects as of the Closing Date.
7.1 Authority to Sign and Conflicts of Interest.
The Purchaser has all requisite power, authority and approval required to
enter into, sign, and deliver this Agreement and to perform fully the
Purchaser's obligations hereunder. This Agreement has been duly executed
and delivered by the Purchaser and constitutes valid and legally binding
obligations of the Purchaser, enforceable in accordance with its terms.
Neither the execution and delivery of this Agreement nor the completion
or performance of any of the obligations and/or transactions contemplated
herein will:
a) breach the articles of association or other constitutional documents,
by-laws or any directors' resolution of the Purchaser, or
b) contravene, conflict with, or result in a violation of any law or
regulation, order, judgment, writ, injunction, decree, statute to
which the Purchaser may be subject.
7.2 Due Incorporation of Purchaser.
The Purchaser is a corporation duly incorporated, validly existing and in
good standing under the laws of Italy.
7.3 Acknowledgments.
The Purchaser acknowledges that at the time of the Closing (i) it will
have conducted a due diligence review and (ii) all materials and
information requested by the Purchaser have been provided to the
Purchaser to the Purchaser's satisfaction. Except for the express
representations and warranties contained herein, the Purchaser
acknowledges that the Seller has made no representations, warranties or
agreements of any kind as to ASW-II, Speedline, its Subsidiaries or the
Business.
Article 8
Other Undertakings
8.1 Replacement of Security And Policies.
The Purchaser undertakes to obtain, prior to the Closing Date, releases
of any and all obligations undertaken by the Seller, Amcast or any person
or entity controlling, controlled by or under common control with Amcast
("Amcast Affiliates") in favor of or in the interest of ASW-II, Speedline
or the Subsidiaries, as listed on Annex 8.1 attached hereto, and provide
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satisfactory evidence of such releases to the Seller. In case of
impossibility to obtain the releases described above, the Purchaser shall
provide the Seller with guarantees, performance bonds or fideiussioni
acceptable to Seller (in Seller's sole discretion) ("Counter Guarantees")
to cover Seller's liability. The Purchaser shall use its best efforts to
obtain such releases or Counter Guarantees no later than the Closing
Date, and in any case, shall indemnify and hold harmless the Seller, or
any of the Amcast Affiliates, as the case may be, in case any demand or
claim is made to any of them in respect of any obligation before full
release is obtained or such Counter Guarantee established.
8.2 Antitrust Filing. Prior to the Closing Date, the Purchaser shall make,
with the assistance of the Seller, the 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.
8.3 Intercompany Debts. The intercompany debts will be handled as set forth
in Annex 8.3 hereof. Seller shall cause certain of these debts to be
either forgiven or contributed to the capital of ASW-II in the most
appropriate manner taking into account the possible tax effects for
Amcast, ASW International Inc., Seller, ASW- II and Speedline.
8.4 Exclusivity. The Parties agree that the starting from the earlier of (i)
March 17, 2003 (in case the Closing has not taken place), or (ii) the
receipt of the notice of withdrawal by Seller as set forth in Article 3,
the Seller shall be entitled to start or proceed with negotiation with
third parties for sale or implementation of any other transaction
concerning ASW-II, Speedline or any Subsidiaries in any whatsoever form
and manner.
8.5 North American Trademark License. On or prior to the Closing Date
Speedline shall sign an amended license agreement concerning the
marketing and sale in NAFTA countries of its products with the trademark
"Speedline" with Amcast for a duration of fifteen (15) years in the form
attached hereto as Annex 8.5.
8.6 Speedline Credit. Speedline will enter into an agreement with Amcast
whereby they will agree that (i) the amount of the credit currently owed
by Amcast to Speedline will be reduced to $ 300,000 and (ii) Amcast will
agree to pay such credit in quarterly installments of $ 75,000 each
commencing April 1, 2009.
Article 9
Confidentiality
For a period of two (2) years starting from the date hereof, the Parties
shall keep strictly confidential all information delivered, provided or
disclosed in any manner from one Party to the other Party pursuant to
this Agreement (the "Confidential Information") and will not disclose or
otherwise make public, without the prior written consent of the
disclosing party, the Confidential Information to third parties (other
than to a professional or other advisor of the Party which has received
the Confidential Information, in which case such Party shall cause the
recipient of the Confidential Information to comply with the terms of
this provision as if it were a party to this Agreement), provided that no
Party hereto shall be obligated to keep confidential or shall incur in
any liability for disclosure of the Confidential Information which:
a) was already in the public domain or comes into the public domain
without any breach of this Agreement;
b) was lawfully in that Party's possession prior to the entering into of
this Agreement;
c) was disclosed by third parties having lawful possession of the
Confidential Information and the right to disclose same; or
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d) must be disclosed by a party pursuant to laws, regulations or
governmental orders binding on such party, such as, by way of example
but without limitation, applicable securities laws.
Article 10
Arbitration
10.1 General.
Unless settled by mutual agreement, any dispute whatsoever that might
arise out of or in connection with the performance or the meaning of this
Agreement or in connection with any other matter of whatsoever nature
concerning this Agreement shall be submitted to arbitration and finally
settled in accordance with and subject to the Rules of Arbitration of the
Milan Chamber of Commerce then in force and finally settled by three
arbitrators.
10.2 Appointment of the Panel of Arbitrators.
The panel of arbitrators will be appointed as follows: each Party will
appoint an arbitrator and the two arbitrators appointed by the Parties
will appoint a third arbitrator who shall act as chairman of the panel.
In case the third arbitrator is not appointed within thirty (30) Business
Days from the appointment of the last of the two arbitrators appointed by
the Parties or one of the Parties has not appointed its arbitrator within
fifteen (15) Business Days from the notice of the appointment of the
arbitrator by the other Party, the third arbitrator and/or the arbitrator
not appointed by the relevant Party will be appointed by the Milan
Chamber of Commerce upon request of either Party.
10.3 Place of Arbitration.
Unless otherwise agreed in writing by the Parties, the arbitration will
take place in Milan, in the English language, it being understood that
the arbitrators shall be fluent in English.
10.4 Costs of Arbitration.
Each Party shall pay its own counsel's fees and costs. The cost of the
arbitration will be assessed against the unsuccessful Party, with respect
to any claim unsuccessfully disputed by the relevant Party, and the
arbitrators shall make such cost allocation in their decisions.
Article 11
Expenses
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.
Any costs, expenses and duties in excess should be born entirely by the
Seller.
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Article 12
General Provisions
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:
(a) if to the Seller to:
Xx. Xxxxxx Xxxxx, President
Amcast Industrial Corporation
0000 Xxxxxxxxxx Xxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
XXX
Fax no.: x0-000-000-0000
Tel no.: x0-000-000-0000
CC: Xx. Xxxxxx Xxxx, Legal Counsel
Amcast Industrial Corporation
0000 Xxxxxxxxxx Xxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
XXX
Fax no.: x0-000-000-0000
Tel no.: x0-000-000-0000
(b) if to the Purchaser to:
Xx. Xxxxxxx Xxxxxxxxxx
x/x Xxxxxxxxxx X.x.X.
Xxxxx X. Xxxxxx (XX) Xxxxx
Fax no.: 000-000000
Tel no.: 000-0000000
CC: Xx. Xxxxxxx Xxxxx
Xxxxx Briolini Felli
Xxx Xxxxx 0
00000 Xxxxxxx Xxxxx
Fax no. 000-000000
Tel no.: 000-000000
(c) if to the Notary to:
Lexence
t.a.v. Xxx. X.X. Xxxxx
Xxxxx van Xxxxxxxxxxxx 0
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Fax no: x00 00 0000 000
Tel no: x00 00 0000 000
In case any Party may, at any time, change its address, same shall give
immediately notice to the other Party of such change.
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12.2 Entire Agreement.
This Agreement (including any Exhibits or Annexes hereto) and the
agreements, documents and instruments to be signed and delivered pursuant
hereto or thereto, are intended to function as the final, complete and
exclusive agreement among the Parties with respect to the purchase of the
Shares and related transactions, and are intended to supersede all prior
agreements, understandings and representations written or oral, with
respect thereto and may not be contradicted by evidence of any such prior
or contemporaneous agreement, understanding or representation, whether
written or oral.
12.3 Further Cooperation.
The Parties covenant and agree, at the request and expense of the
requesting party, to execute and deliver any deed or document, and to
fulfill any obligation or any other duty to be performed pursuant to the
Agreement or which is legally necessary to complete the purchase, sale
and transfer of the Shares and the transactions contemplated in this
Agreement.
12.4 Amendments.
No amendment, modification or waiver of any provision of this Agreement
shall be valid and binding unless approved in writing by the Party
against which such amendment, modification or waiver is invoked. No
waiver of the Parties shall constitute a waiver of any other provision
unless such waiver is otherwise expressly provided.
12.5 Severability.
Any Article, section, paragraph, subsection or other provisions of this
Agreement which is or becomes illegal, invalid or unenforceable shall be
severed from this Agreement, to the extent permitted under applicable
law, and be ineffective to the extent of such illegality, invalidity or
unenforceability and shall not affect the remaining provisions hereof and
be replaced by a provision reflecting the intent of the Parties.
12.7 Assignment.
This Agreement and the related rights, interests, and obligations shall
not be assigned by the Seller and the Purchaser without the prior written
consent of the other Party and any attempt of transfer or assignment of
this Agreement without the consent of the other Party shall be deemed
void and with no effect.
12.8 Counterparts.
This Agreement may be executed in any number of counterparts, and each
such counterpart hereof shall be deemed to be an original instrument, but
all such counterparts together shall constitute but one agreement.
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12.9 Governing Law; Language.
This Agreement shall be governed by, and construed in accordance with the
laws of Italy. This Agreement is being executed in the English language,
and the English version shall prevail, control and supersede any
translation hereof into any other language.
* * *
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: /S/ Xxxxxx X. Xxxxx
-----------------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
For the Purchaser:
Maberfin S.p.A.
By: /S/ Xxxxxxx Xxxxxxxxxx
-----------------------------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Member of the Board and Authorized Representative
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