1
SHARE PURCHASE AGREEMENT
between
AMCAST INDUSTRIAL CORPORATION
and
Speedline International Holding B.V.
Gerance S.A.
San Marco Finanziaria S.p.A.
Mr. Xxxxxxx Xxxxxxxxx
Mr. Xxxxxxxxx Xxxxxxxxx
Mr. Xxxxxx Xxxxxxxxx
Mr. Xxxxxx Xxxxxxxxx
Ms. Graziella Xxxxxxxxx
XXXXXX, ORIGONI & PARTNERS
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TABLE OF CONTENTS
ARTICLE 1: RECITALS: DEFINITIONS: INTERPRETATIONS ..................... .. Page 4
1.1 Recitals ...................................................... Page 4
1.2 Definitions ................................................... Page 4
1.3 Gender and Number ............................................. Page 4
1.4 Headings, Etc. ................................................ Page 4
1.5 Currency ...................................................... Page 4
1.6 Severability .................................................. Page 5
1.7 Adverse Construction .......................................... Page 5
1.8 Incorporation of Enclosures and Sellers' Disclosure Schedule .. Page 5
ARTICLE 2: SALE AND PURCHASE ............................................. Page 6
2.1 Sale and Purchase ............................................. Page 6
2.2 Closing ....................................................... Page 6
2.3 Price ......................................................... Page 7
2.4 Adjustment of the Purchase Price .............................. Page 12
2.4.1 Closing Statement ............................................. Page 12
2.4.2 Adjustment .................................................... Page 13
2.4.3 Closing Statement Disputes .................................... Page 14
ARTICLE 3: REPRESENTATIONS AND WARRANTIES OF THE SELLERS ................. Page 15
ARTICLE 4: REPRESENTATIONS AND WARRANTIES OF THE PURCHASER ............... Page 16
ARTICLE 5: SURVIVAL OF REPRESENTATIONS AND WARRANTIES .................... Page 16
5.1 Survival of Representations and Warranties of the Sellers ..... Page 16
5.2 Survival of the Representations and Warranties of the Purchaser Page 16
5.3 Interruption Due to Notice of Claim ........................... Page 17
5.4 Independent Obligations ....................................... Page 17
ARTICLE 6: CLOSING COVENANTS ............................................. Page 17
6.1 Operation of the Business Pending the Closing ................. Page 17
6.2 Access to Information and Documents ........................... Page 20
6.3 Antitrust Filings ............................................. Page 20
6.4 Notice of Untrue Representation or Warranty ................... Page 21
6.5 Actions to Satisfy Closing Conditions ... ..................... Page 21
6.6 Risk of Loss .................................................. Page 21
6.7 Opinions of Counsel ........................................... Page 21
6.8 Corporate Actions ............................................. Page 22
6.9 Key Managers .................................................. Page 22
6.10 Performance ................................................... Page 22
6.11 Related Party Agreements ...................................... Page 22
6.12 Press Releases ................................................ Page 22
6.13 Not used ...................................................... Page 22
6.14 Related Party Leases .......................................... Page 23
6.15 FLT Option .................................................... Page 23
6.16 Revocation of banking powers .................................. Page 23
6.17 Leases extension or amendments ................................ Page 23
ARTICLE 7: POST-CLOSING COVENANTS ........................................ Page 24
7.1 Non-Competition Clause ........................................ Page 24
7.2 Non-Solicitation .............................................. Page 24
7.3 Duty of Confidentiality ....................................... Page 25
7.4 Consideration ................................................. Page 25
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7.5 Modification of Name ......................................... Page 25
7.6 Obligations to bind Affiliates, etc. ......................... Page 25
7.7 Environmental Permitting and Remediation Plan ................ Page 25
7.8 Accounts Receivable .......................................... Page 26
7.9 Releases ..................................................... Page 26
ARTICLE 8: CONDITIONS PRECEDENT OF THE CLOSING .......................... Page 26
8.1 Conditions to Obligations of All Parties ..................... Page 26
8.1.1 No Legal Obstruction ......................................... Page 26
8.1.2 Change in Law ................................................ Page 26
8.2 Conditions to Obligations of Purchaser ....................... Page 27
8.2.1 Board of Directors Approval; Audited Financial Statements .... Page 27
8.2.2 Representations and Warranties ............................... Page 27
8.2.3 Performance .................................................. Page 28
8.2.4 Opinion of Sellers' Counsel .................................. Page 28
8.2.5 Agreement with Mr. Zacchello and Key Managers ................ Page 28
8.2.6 Resignation .................................................. Page 29
8.2.7 Closing Certificate .......................................... Page 29
8.2.8 Deliveries ................................................... Page 29
8.2.9 Material Adverse Change ...................................... Page 31
8.2.10 Satisfactory Meetings with Key Customers ..................... Page 31
8.2.11 Termination of Agreement by Purchaser ........................ Page 31
8.3 Conditions to Obligations of the Sellers ..................... Page 32
8.3.1 Representations and Warranties ............................... Page 32
8.3.2 Performance .................................................. Page 32
8.3.3 Deliveries ................................................... Page 32
8.3.4 Termination of Agreement by Sellers .......................... Page 32
ARTICLE 9: INDEMNIFICATION BY THE SELLERS ............................... Page 33
9.1 Indemnification by the Sellers ............................... Page 33
9.2 Liability of the Sellers ..................................... Page 33
9.3 Indemnification by the Purchaser ............................. Page 37
9.4 Notice of Claim .............................................. Page 37
9.5 Direct Claims ................................................ Page 37
9.6 Third Party Claims ........................................... Page 38
9.7 Settlement of Third Party Claims ............................. Page 38
9.8 Limitation of Liability ...................................... Page 39
9.9 Not used ..................................................... Page 41
9.10 Payment of Amounts ........................................... Page 41
9.11 No Waiver .................................................... Page 41
ARTICLE 10: ARBITRATION .................................................. Page 42
10.1 General ...................................................... Page 42
10.2 Place of Arbitration ......................................... Page 42
10.3 Costs of Arbitration ......................................... Page 42
10.4 Italian Law .................................................. Page 42
ARTICLE 11: MISCELLANEOUS ................................................ Page 43
11.1 Notices ...................................................... Page 43
11.2 Expenses ..................................................... Page 44
11.3 Assignment; No Third Party Beneficiaries ..................... Page 44
11.4 Governing Law; Language ...................................... Page 45
11.5 Integration .................................................. Page 45
11.6 Further Assurances ........................................... Page 45
11.7 Common Representative of the Sellers ......................... Page 45
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11.8 Amendments and Waivers ....................................... Page 45
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PURCHASE AGREEMENT
PURCHASE AGREEMENT dated as of July 18/21, 1997 (hereinafter, the "Agreement")
AMCAST INDUSTRIAL CORPORATION, a corporation organized under the laws of Ohio,
USA with registered offices at 0000 Xxxxxxxxxx Xxxxxxx Xxxxx, Xxxxxx, Xxxx
00000-0000 XXX ("Amcast"), represented herein by Mr. Xxxx X. Xxxxx, in his
capacity as President and Chief Executive Officer of Amcast, directly or through
one or more companies designated by Amcast that are directly or indirectly
controlled by Amcast (hereinafter, the "Purchaser");
- ON THE ONE SIDE -
SPEEDLINE INTERNATIONAL HOLDING B.V., a company organized under the laws of The
Netherlands, with registered office at Olympic Plaza, Xxxx. Xxxxxxxxxxxx 000,
0xx Xxxxx, 0000XX Xxxxxxxxx, Xxx Xxxxxxxxxxx, being the owner of 12.33 percent
of the Speedline Shares, represented herein by Mr. Xxxxxxxxx Xxxxxxxxx, as
proxy, pursuant to the duly notarized power of attorney dated July 15, 1997 and
the resolution of the Board of Directors dated July 15, 1997, (hereinafter,
"Speedline Holding");
GERANCE S.A., a company organized under the laws of Switzerland, with registered
office at Xxxxxxxxxxxxx x. 00, Xxxxx, Xxxxxxxxxxx, being the owner of 47.79
percent of the Speedline Shares, represented herein by Mr. Xxxxxx Xxxxxxxxxxxx,
as sole director, pursuant to the resolution of the Board of Directors dated
July 17, 1997 (hereinafter, "Gerance");
SAN MARCO FINANZIARIA S.p.A., a company organized under the laws of Italy, with
registered office at Xxxxxxxxx 0000, Xxxxxxx, Xxxxxx, Xxxxx, being the owner of
8 percent of the Speedline Shares, represented herein by Mr. Xxxxxx Xxxxxxxxx,
in his capacity of managing director (hereinafter "San Marco Finanziaria");
(hereinafter, the "Corporate Sellers")
AND
MR. XXXXXXX XXXXXXXXX, an Italian citizen, born in Venice, Italy on July 6, 1910
domiciled at Xxx Xxxxx 0000, Xxxxxx, Xxxxx, owner of 4.76 percent of the
Speedline Shares;
MR. XXXXXXXXX XXXXXXXXX, an Italian citizen, born in Mogliano Veneto, Italy on
July 2, 1933 domiciled at Xxx Xxxxx 0000, Xxxxxx, Xxxxx, owner of 6.70 percent
of the
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Speedline Shares;
MR. XXXXXX XXXXXXXXX, an Italian citizen, born in Mestre, Italy on January 24,
1938 domiciled at Xxxxxxxx 0000 Xxxxxx, Xxxxx, owner of 6.70 percent of the
Speedline Shares;
MR. XXXXXX XXXXXXXXX, an Italian citizen, born in Venice, Italy on December 11,
1935 domiciled at Xxx Xxxxx Xxxxxxxxx, Xxxxx, Xxxxx, owner of 6.86 percent of
the Speedline Shares;
MS. XXXXXXXXX XXXXXXXXX, an Italian citizen, born in Venice, Italy on June 9,
1941 domiciled at Xxx Xxxxx , Xxxxx, Xxxxx, owner of 6.86 percent of the
Speedline Shares;
(hereinafter, the "Individual Shareholders")
(hereinafter, the Corporate Sellers and the Individual Shareholders, jointly and
severally referred to as the "Sellers");
- ON THE OTHER SIDE -
(hereinafter, collectively referred to as the "Parties").
RECITALS
A. The Sellers directly or indirectly own all of the issued and
outstanding shares as well as all of the quotas of the following
companies:
(i) Gerance (47.79%), Speedline Holding (12.33%), San
Marco Finanziaria (8%), Mr. Xxxxxxx Xxxxxxxxx
(4.76%), Mr. Xxxxxxxxx Xxxxxxxxx (6.70%), Mr. Xxxxxx
Xxxxxxxxx (6.70%), Mr. Xxxxxx Xxxxxxxxx (6.86%) and
Ms. Xxxxxxxxx Xxxxxxxxx (6.86%) own all of the issued
and outstanding shares of SPEEDLINE S.p.A., a company
organized under the laws of Italy with outstanding
capital of ITL 30,000,000,000 and registered office
at Xxxxxxxxx 0000, Xxxxxxx (Xxxxxxx).
(xx) Speedline owns all of the issued and outstanding
shares of SPEEDCAST B.V., a company organized under
the laws of The Netherlands, with registered office
at Olympic Plaza, Xxxx. Xxxxxxxxxxxx 000, 0XX xxxxx,
Xxxxxxxxx, Xxx Xxxxxxxxxxx (hereinafter,
"Speedcast");
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(iii) Speedcast owns all of the issued and outstanding
shares of SPEEDLINE ALUMINIA S.p.A. a company
organized under the laws of Italy with registered
office at Xxxxxxx, Xxx Xxxxx, 00 (hereinafter,
"Speedline Aluminia");
(iv) Speedcast owns all of the issued and outstanding
shares of SPEEDLINE ENGINEERING S.p.A., a company
organized under the laws of Italy, with registered
office at Xxxxx Xxxxx xx Xxxx (Xxxxxxx), Xxx Xxxxxxx
000 (hereinafter, "Speedline Engineering");
(v) Speedcast owns all the quotas of SPEEDLINE
COMPETITION S.r.l., a company organized under the
laws of Italy, with registered office at Xxxxxxxxx
0000, Xxxxxxx, Xxxxxxx (hereinafter, "Speedline
Competition");
(vi) Speedline Aluminia, owns all the quotas of AUTOLAMBRO
S.r.l., a company organized under the laws of Italy,
with registered office at Xxxxxxxxx 0000, Xxxxxxx,
Xxxxxxx (hereinafter, "Autolambro");
(vii) Speedline owns all the quotas of ALUSTAMPI S.r.l., a
company organized under the laws of Italy, with
registered office at Xxxxx Xxxxx xx Xxxx (Xxxxxxx),
Xxx Xxxxxxx 0 (hereinafter, "Alustampi");
(viii) Speedcast owns the entire outstanding capital of
SPEEDLINE UK LIMITED, a private company limited by
shares organized under the laws of England with
registered office at x/x Xxxxxxxxxxx, 00 Xxxxxxxx
Xxxx, Xxxxxxxxxx X00XX, Xxxxxx Xxxxxxx (hereinafter,
"Speedline UK");
(ix) Speedcast owns the entire outstanding capital of
SPEEDLINE FRANCE S.a.r.l., a private company limited
by shares organized under the laws of France, with
registered office at Immeuble Espace Elysee, 000
Xxxxxx xxx Xxxxxx-Xxxxxxx, 00000 Xxxx Xxxxx, Xxxxxx
(hereinafter, "Speedline France");
(x) Speedline owns all of the issued and outstanding
shares of SL WHEELS, INC., a corporation organized
under the laws of the State of Michigan, USA, with
registered office at 00000 Xxxx Xxxx Xxxx Xxxx, Xxxxx
000, Xxxxxxxxxx, Xxxxxxxx, XXX (hereinafter,
"Speedline USA");
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(Speedline, Speedcast, Speedline Aluminia, Speedline Engineering,
Speedline Competition, Autolambro, Alustampi, Speedline UK, Speedline
France and Speedline USA hereinafter, jointly and severally, referred
to as the "Companies").
B. The Companies are engaged in the following areas of operations: (a)
manufacturing, distribution and sale of aluminum, magnesium and alloy
wheels and hubcaps and other fittings for the automotive industry, and
(b) all activities incidental, or related to those indicated in the
preceding letter (a).
C. The Sellers wish to sell, and the Purchaser wishes to purchase all, but
not less than all, of the Speedline Shares, and thereby to acquire sole
direct and indirect ownership of the Companies, upon the terms and
subject to the conditions hereinafter set forth and in reliance upon
the representations, warranties, covenants and indemnities of the
Sellers contained herein.
NOW, THEREFORE, in consideration of the mutual promises, covenants,
representations, warranties and indemnities herein contained, the Parties hereto
agree as follows.
ARTICLE 1
RECITALS: DEFINITIONS: INTERPRETATIONS
--------------------------------------
1.1 RECITALS. All the foregoing recitals as well as the enclosures and any
document related thereto are an integral and substantial part of this Agreement.
1.2 DEFINITIONS. Enclosure 1 hereto sets forth the definitions used in this
Agreement.
1.3 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. All references, both plural and singular, to the Sellers
shall be deemed to refer to them individually, jointly and severally.
1.4 HEADINGS, ETC. The provision of a table of contents, the division of this
Agreement into Articles, Sections, Subsections 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.
1.5 CURRENCY. All references in this Agreement to currency, unless otherwise
specifically indicated, shall be in United States Dollars. The term ITL means
Italian Lire.
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1.6 SEVERABILITY. Any Article, Section, Subsection or other subdivision of this
Agreement or any other provision of this Agreement which is, or becomes,
illegal, invalid or unenforceable shall be severed from this Agreement and be
ineffective to the extent of such illegality, invalidity or unenforceability and
shall not affect or impair the remaining provisions hereof, unless it was an
essential inducement for either Party to enter into this Agreement or it
materially affects the contents thereof, in which event the Parties shall
promptly meet and negotiate in good faith a solution granting, to the extent
permitted by law, the achievement of a substantially similar result.
1.7 ADVERSE CONSTRUCTION. The language in all parts of this Agreement shall in
all cases be construed as a whole according to its fair meaning and without
implying a presumption that the terms thereof shall be more strictly construed
against one party as opposed to another by reason of the rule of construction
that a document is to be construed more strictly against the party who has
prepared the same, it being agreed that the representatives of all Parties have
participated in the preparation hereof and negotiation of this Agreement.
1.8 INCORPORATION OF ENCLOSURES AND SELLERS' DISCLOSURE SCHEDULE. The following
are the Enclosures attached to and incorporated herein as an integral and
substantial part of this Agreement:
1. Definitions.
2. FLT Option Agreement.
3. Representations and Warranties of Sellers.
4. Representations and Warranties of Purchaser.
5. Escrow Agreement for the Additional Purchase Price Stock.
6. Not used.
7. Opinion of Sellers' Counsel.
8. Side letter with the Key Managers.
9. Financial Statements
10. List of the Key Managers.
11. Employment Agreement for certain Key Managers.
12. 1997 Operating Budget.
13. Closing Certificate.
14. Environmental Permitting and Remediation Plan.
15. Guarantee of Xxxxxxxxx Xxxxxxxxx.
The Sellers' Disclosure Schedule is hereby incorporated herein as an integral
and substantial part of this Agreement.
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ARTICLE 2
SALE AND PURCHASE
-----------------
2.1 SALE AND PURCHASE. Subject to the terms and conditions of this Agreement, at
the Closing, the Sellers shall sell, transfer and deliver to the Purchaser and
the Purchaser shall purchase from the Sellers all (but not less than all) of the
issued and outstanding shares representing the capital stock of Speedline (the
"Speedline Shares"), free and clear of all Liens, for the consideration
specified in Section 2.3 hereof, subject to adjustment as provided in Section
2.4 hereof and to the further terms of this Agreement. The Speedline Shares
shall be transferred to the Purchaser as follows:
a) Speedline Holding shall sell to the Purchaser no. 3,700,000
shares of Speedline capital stock, equal to 12.33% of the
Speedline Shares;
b) Gerance shall sell to the Purchaser no. 14,337,000 shares of
Speedline capital stock, equal to 47.79% of the Speedline
Shares;
c) San Marco Finanziaria shall sell to the Purchaser no.
2,400,000 shares of Speedline capital stock, equal to 8% of
the Speedline Shares;
d) Mr. Xxxxxxx Xxxxxxxxx shall sell to the Purchaser no.
1,428,052 shares of Speedline capital stock, equal to 4.76% of
the Speedline Shares;
e) Mr. Xxxxxxxxx Xxxxxxxxx shall sell to the Purchaser no.
2,008,737 shares of Speedline capital stock, equal to 6.70% of
the Speedline Shares;
f) Mr. Xxxxxx Xxxxxxxxx shall sell to the Purchaser no. 2,008,737
shares of Speedline capital stock, equal to 6.70% of the
Speedline Shares;
g) Mr. Xxxxxx Xxxxxxxxx shall sell to the Purchaser no. 2,058,737
shares of Speedline capital stock, equal to 6.86% of the
Speedline Shares;
h) Ms. Xxxxxxxxx Xxxxxxxxx shall sell to the Purchaser no.
2,058,737 shares of Speedline capital stock, equal to 6.86% of
the Speedline Shares.
2.2 CLOSING. The closing of the sale and purchase of the Speedline Shares
(hereinafter, the "Closing") shall take place at the offices of Swiss Bank
Corporation, located in Lugano, Switzerland, beginning at 10:00 a.m. (Lugano
time) on August 19, 1997, or at a date and time as soon as practicable
thereafter as the parties may agree
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in writing, provided that each of the conditions precedent contained in this
Agreement is fulfilled or waived, or at such other date, time and place as the
Parties may agree in writing (hereinafter, the "Closing Date"). At the Closing:
a) the Sellers holding the Speedline Shares shall duly endorse in
favor of the Purchaser and shall deliver to the Purchaser the
share certificates representing all the Speedline Shares free
and clear from any Liens, as well as the shareholders' book of
Speedline containing the annotation attesting that the
Purchaser has been registered therein as the owner and the
holder of the Speedline Shares, free and clear of any Liens;
b) the Sellers shall execute and deliver the Closing Certificate,
substantially in the form of Enclosure 13, and all other
documents and instruments required to be executed or delivered
under this Agreement by the Sellers before or at the Closing;
c) the Purchaser shall execute and deliver the Closing
Certificate substantially in the form of Enclosure 13 hereof,
and all other documents and instruments required to be
executed or delivered under this Agreement by the Purchaser
before or at the Closing;
d) the Purchaser shall pay to the Sellers the Initial Purchase
Price, as described in Section 2.3 of this Agreement.
2.3 PRICE. Subject to determination and adjustment as provided in this Article
2, the purchase price for the Speedline Shares as well as for any obligation,
undertaking, covenant, representation and warranty contained in this Agreement,
or any agreement or document delivered pursuant hereto or in connection herewith
(including the non-competition and other covenants set forth under Article 7
below), shall be up to SIXTY NINE MILLION UNITED STATES DOLLARS (US$
69,000,000.00) (hereinafter, the "Purchase Price"), and shall be paid by the
Purchaser to the Sellers as follows:
a) at the Closing Date, the Purchaser shall pay to the Sellers
FORTY-EIGHT MILLION FIVE HUNDRED THOUSAND UNITED STATES
DOLLARS (US$ 48,500,000.00) less the Environmental Holdback
Amount as determined pursuant to Section 2.3 (f) of this
Agreement (hereinafter, the "Initial Purchase Price"), to be
allocated among the Sellers as follows (hereinafter, the
"Initial Purchase Price Fractions"):
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- Speedline Holding: 12.33% of the Initial Purchase Price;
- Gerance: 47.79% of the Initial Purchase Price;
- San Marco Finanziaria: 8.00% of the Initial Purchase Price;
- Mr. Xxxxxxx Xxxxxxxxx: 4.76% of the Initial Purchase Price;
- Mr. Xxxxxxxxx Xxxxxxxxx: 6.70% of the Initial Purchase Price;
- Mr. Xxxxxx Xxxxxxxxx: 6.70% of the Initial Purchase Price;
- Mr. Xxxxxx Xxxxxxxxx: 6.86% of the Initial Purchase Price;
- Ms. Xxxxxxxxx Xxxxxxxxx: 6.86% of the Initial Purchase Price.
The payment of the Initial Purchase Price Fractions shall be
made by wire transfer, in immediately available funds, value
date as of the Closing Date, to the bank accounts that shall
be indicated in writing by the Sellers to the Purchaser not
later than 5 Business Days prior to the Closing Date.
b) If the Closing Date Exchange Rate is outside the range of
between 1,625 ITL and 1,775 ITL to US$1.00, then the parties
shall meet and in good faith renegotiate any relevant terms of
this Agreement, in which event the Parties shall not be
obligated to complete the Closing until and unless the
Purchaser and the Common Representative have agreed on all
such terms.
c) (i) At the Closing Date, the Purchaser shall cause Amcast to
deliver to the Escrow Agent, in the name of the Sellers, to be
held by the Escrow Agent pursuant to an escrow agreement
substantially in the form of Enclosure 5 hereto (hereinafter,
the "Escrow Agreement") that number of Common Shares of
Amcast, having a total value of TWELVE MILLION FIVE HUNDRED
THOUSAND UNITED STATES DOLLARS (US$ 12,500,000.00), allocated
among the Sellers in accordance with the Initial Purchase
Price Fractions, based on the Announcement Date Share Value
(hereinafter, the "Additional Purchase Price Shares").
"Additional Purchase Price Shares" also shall be deemed to
refer to any bank guaranty or other security substituted for
the Additional Purchase Price Shares in accordance with the
terms of this Agreement or of the Escrow Agreement. The
Additional Purchase Price Shares shall be delivered to the
Sellers only in accordance with the terms and subject to the
conditions of the Escrow Ageement. "Announcement Date Share
Value" means the average closing price per share of the Common
Shares traded on the New York Stock Exchange, Inc.
(hereinafter, the "NYSE") for the twenty (20) consecutive
Trading Days ending on the Trading Day immediately prior to
any Public Announcement concerning the
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transactions contemplated by this Agreement (hereinafter, the
"Announcement Date").
(ii) Subject to the rights of offset and other provisions of
this Article 2 and Article 9 hereof, for the period beginning
on the Second Anniversary and ending 180 days thereafter, the
Purchaser shall provide to the Sellers limited price
protection on the Additional Purchase Price Shares delivered
to the Sellers pursuant to the Escrow Agreement within 180
days after the Second Anniversary (hereinafter, the "Protected
Shares"), against a decrease in the value of the Common Shares
between the Announcement Date Share Value and the Second
Anniversary Share Value.
(a) The "Second Anniversary Share Value" shall mean
the average closing price per share of the Common Shares
traded on the NYSE for the twenty (20) consecutive Trading
Days ending on the Second Anniversary. "Second Anniversary"
shall mean the second annual anniversary of the Closing Date
or, if that day is not a Trading Day, then the first Trading
Day thereafter.
(b) In the event the Second Anniversary Share Value
is equal to or greater than the Announcement Date Share Value,
Purchaser shall not provide any price protection to the
Sellers upon sale of the Protected Shares by the Sellers.
(c) In the event the Second Anniversary Share Value
is less than the Announcement Date Share Value, then for each
share of Protected Stock sold by the Sellers either directly
or through duly appointed financial intermediaries on the NYSE
during the period ending 180 days after the Second Anniversary
at a price per share lower than the Announcement Date Share
Value, the Purchaser shall pay to the Sellers, as an
adjustment to the Purchase Price, an amount per share sold by
the Sellers equal to the difference between the Announcement
Date Share Value and the price per share at which the Sellers
sold such share, either directly or through duly appointed
financial intermediaries but not exceeding the difference
between the Announcement Date Share Value and the Second
Anniversary Share Value per share of Protected Shares sold by
the Sellers either directly or through duly appointed
financial intermediaries during such 180 day period.
d) Subject to the rights of offset and other provisions of this
Article 2 and
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Article 9 of this Agreement, the Purchaser shall pay to the
Sellers in accordance with the Initial Purchase Price
Fractions, on the date that is nine (9) months after the
Closing (hereinafter the "Nine Month Anniversary"), the amount
of FOUR MILLION UNITED STATES DOLLARS (US$4,000,000.00) plus
interest on such amount from the Closing Date through the Nine
Month Anniversary at the Reference Rate (hereinafter, the
"Deferred Payment"). In addition, as security for payment of
the Deferred Payment, the Purchaser shall procure and deliver
to the Sellers at Closing an irrevocable standby bank letter
of credit issued by a bank reasonably acceptable to the
Sellers, in accordance with the UCP 500, and otherwise in form
and substance reasonably satisfactory to the Sellers, in the
amount of the Deferred Payment, as the same may be reduced by
offset from time to time, in accordance with the terms of this
Agreement.
e) Subject to the right of offset and other provisions of this
Article 2 and Article 9 of this Agreement, the Purchaser shall
pay to the Sellers, in accordance with the Initial Purchase
Price Fractions up to a maximum amount of FOUR MILLION UNITED
STATES DOLLARS (US$ 4,000,000.00) (hereinafter, the
"Contingent Payment"), provided that, if the Companies'
consolidated operating income, as determined in accordance
with the Accounting Principles, for the twelve month period
ending December 31, 1997 (hereinafter, the "1997 Profit"), as
indicated in the audited, consolidated financial statements of
the Companies for such period prepared in accordance with the
Accounting Principles (hereinafter, the "1997 Financial
Statements"), is less than the 1997 Profit Budget, then the
Contingent Payment shall be reduced in accordance with Section
2.3 e)(i) below. If the Purchaser causes the fiscal year of
the Companies to be changed, or if the parties agree that an
event outside the ordinary course of business has occurred,
then the 1997 Profit shall be determined based upon a pro
forma, consolidated, reviewed financial statement of the
Companies for the twelve month period ending December 31, 1997
prepared in accordance with the Accounting Principles. "1997
Profit Budget" is hereby defined as an operating profit of
NINETEEN BILLION NINE-HUNDRED TWENTY-FIVE MILLION ITALIAN LIRE
(ITL 19,925,000,000.00) as set forth in the 1997 Operating
Budget prepared in accordance with the Accounting Principles.
Unless otherwise agreed mutually in writing by the Purchaser
and the Sellers in case of events outside the ordinary course
of business:
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(i) if the 1997 Profit is less than the 1997 Profit
Budget, then the Contingent Payment shall be reduced
by one United States Dollar (US$1.00) for each Seven
Hundred Thirty One Italian Lire (ITL 731.00) by which
the 1997 Profit is less than the 1997 Profit Budget
(hereinafter, the "Contingent Payment Reduction")
with no payment being made if the 1997 Profit is less
than Seventeen Billion Italian Lire (ITL
17,000,000,000.00); and
(ii) if the Contingent Payment is reduced as provided in
paragraph 2.3e)(i), then the amount of the Contingent
Payment Reduction shall be paid to the Sellers if,
and only if, the Companies' consolidated operating
income, as determined in accordance with the
Accounting Principles, for the twelve month period
ending December 31, 1998, (hereinafter, the "1998
Profit"), as indicated in the audited, consolidated
financial statements of the Companies for such
period, prepared in accordance with the Accounting
Principles (hereinafter, the "1998 Financial
Statements"), equals or exceeds twenty-six billion
Italian Lire (ITL 26,000,000,000). If the Purchaser
causes the fiscal year of the Companies to be
changed, or if the parties agree that an event
outside the ordinary course of business has occurred,
then the 1998 Profit shall be determined based upon a
pro forma, consolidated, reviewed, financial
statement of the Companies for the twelve month
period ending December 31, 1998 prepared in
accordance with the Accounting Principles.
The foregoing notwithstanding, it is agreed that any amount
owed by the Purchaser to the Sellers under this Section 2.3 e)
shall not be paid by the Purchaser until December 31, 1999,
and then paid, subject to the right of offset and other
provisions of Article 2 and Article 9 hereof, to the Sellers
with interest on such owed amount calculated at the Reference
Rate from the date in which the owed amount becomes due to
December 31, 1999.
It is agreed that in case of any dispute between the Parties
concerning the Sellers' right to receive all or part of the
Contingent Payment under this Section 2.3 e), the dispute
resolution procedure provided under Section 2.4.3 below shall
apply, MUTATIS MUTANDIS.
f) The Environmental Holdback Amount shall be ONE BILLION FIVE
HUNDRED MILLION ITALIAN LIRE (ITL 1,500,000,000.00), which
shall
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serve as a partial payment of the cost of the actions set
forth in the Environmental Permitting and Remediation Plan
pursuant to Section 7.7 hereof. For purposes of calculating
the Initial Purchase Price Payment, the Environmental Holdback
Amount shall be converted into United States Dollars at the
average of the current exchange rates for conversion of United
States Dollars into Italian Lire published in The Wall Street
Journal on the third (3rd) Trading Day prior to the Closing
Date (hereinafter, the "Closing Date Exchange Rate").
g) If the current exchange rate for conversion of United States
Dollars into Italian Lire published in The Wall Street Journal
on the third (3rd) Trading Day prior to the date the Deferred
Payment is due and payable, is outside the range of between
97% and 103% of the Closing Date Exchange Rate, then the
Deferred Payment shall be adjusted as follows: the Deferred
Payment in United States Dollars shall be converted into
Italian Lire at the Closing Date Exchange Rate, and then
converted back and paid in United States Dollars at the
current exchange rate for conversion of United States Dollars
into Italian Lire published in The Wall Street Journal on such
third (3rd) Trading Day prior to the date the Deferred Payment
is due and payable.
h) If the current exchange rate for conversion of United States
Dollars into Italian Lire published in The Wall Street Journal
on the third (3rd) Trading Day prior to the date[s] the
Contingent Payment, if any, is due and payable, is outside the
range of between 97% and 103% of the Closing Date Exchange
Rate, then the Contingent Payment shall be adjusted as
follows: the Contingent Payment in United States Dollars shall
be converted into Italian Lire at the Closing Date Exchange
Rate, and then converted back and paid in United States
Dollars at the current exchange rate for conversion of United
States Dollars into Italian Lire published in The Wall Street
Journal on such third (3rd) Trading Day prior to the date[s]
the Contingent Payment is due and payable.
2.4 ADJUSTMENT OF THE PURCHASE PRICE. Without prejudice to the provisions of
Article 9, the Purchase Price shall be subject to adjustment after the Closing
as specified in this Section 2.4.
2.4.1 CLOSING STATEMENT. Within 90 days following the Closing Date, the
Purchaser and its independent public accountants shall prepare and deliver to
the Sellers the Closing Statement certified by such independent public
accountants. Such Closing Statement shall specifically indicate the Adjusted
Purchase Price calculated pursuant
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to the formula indicated in Section 2.4.2 below. The Closing Statement shall
specifically indicate the value of the Closing Net Worth and the Closing
Indebtedness and shall be prepared on the basis of the Accounting Principles
consistently applied.
2.4.2 ADJUSTMENT. Subject to Section 2.4.3 below, the Purchase Price shall be
adjusted if the value of the Closing Net Worth is lower than the 1996 Net Worth
and/or the value of the Reference Indebtedness is higher or lower than the
Closing Indebtedness.
a) The Purchase Price shall be adjusted after the Closing as
follows:
(i) if the 1996 Net Worth is greater than the Closing Net
Worth, then the Purchase Price shall be adjusted
downward after the Closing by the amount of the
difference, converted into United States Dollars at
the Closing Date Exchange Rate (hereinafter, the "Net
Worth Adjustment"); and
(ii) there shall be no adjustment if the Closing Net Worth
is greater than the 1996 Net Worth; and
(iii) the Purchase Price shall be adjusted upward after the
Closing if the Closing Indebtedness is less than the
Reference Indebtedness, or downward if the Reference
Indebtedness is less than the Closing Indebtedness,
as the case may be, in each case by the amount of the
difference, converted into United States Dollars at
the Closing Date Exchange Rate (hereinafter, the
"Debt Adjustment").
b) The Purchase Price, as adjusted downward by the Net Worth
Adjustment, if any, and upward or downward by the Debt
Adjustment, if any, shall be the "Adjusted Purchase Price".
Amounts due from the Sellers to the Purchaser, or from the
Purchaser to the Sellers, with respect to the Adjusted
Purchase Price, shall be increased by an amount equal to
interest at the Reference Rate on the amount due and unpaid
from and after the Closing Date until such amount is paid in
full. If the Purchase Price exceeds the Adjusted Purchase
Price, then the Sellers shall pay to the Purchaser, in United
States Dollars, the amount of the difference, plus interest as
calculated above, within five (5) days after final
determination of the Closing Statement or, if Sellers fail to
make such payment, such amount shall be paid to the Purchaser
by Xxxxxxxxx Xxxxxxxxx pursuant to his personal guarantee in
accordance with Section
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9.2 a) v) or, at the Purchaser's discretion, in accordance
with Section 9.2 a) iii) and 9.2 a) iv) of this Agreement. If
the Adjusted Purchase Price exceeds the Purchase Price, the
Purchaser shall pay to the Sellers, in accordance with the
Initial Purchase Price Fractions, the difference in United
States Dollars, plus interest as calcuated above, within five
(5) days after final determination of the Closing Statement.
2.4.3 CLOSING STATEMENT DISPUTES. a) Subject to Section 2.4.3 (b), the Closing
Statement, the calculation of the Closing Net Worth and of the Closing
Indebtedness delivered by the Purchaser to the Sellers shall be final, binding
and conclusive on the Parties hereto.
b) (i) The Sellers, in a single action to be taken by the
Common Representative, may dispute any amount
reflected on the Closing Statement by written notice
delivered to the Purchaser within 30 days of Sellers'
receipt of the Closing Statement, specifying each
disputed item, the amount thereof and the basis on
which such dispute is made. Any items not in dispute
shall be paid in accordance with Section 2.4.2(b).
The Sellers, at their own expense, may cause such Big
Six firm of independent accountants designated by the
Sellers, through the Common Representative
(hereinafter, the "Sellers' Accountants") to conduct
an audit, review or other report of the Closing
Statement and the calculation of the Closing Net
Worth and/or the Closing Indebtedness. For such
purposes the Sellers' Accountants shall have
reasonable access to the Books and Records of the
Companies. The report of the Sellers' Accountants, if
any, referred to in the second sentence of this
sub-paragraph must accompany Sellers' written notice
of dispute.
(ii) In the event of such a dispute, the Purchaser and the
Sellers shall attempt to reconcile their differences
and any resolution reached by them as to any disputed
amounts shall be final, binding and conclusive on the
Parties, and the Purchaser shall revise the Closing
Statement to reflect any such resolutions and may
adjust the Closing Statement in light of any such
dispute, in each case within 30 days of Sellers'
written notice of dispute to the Purchaser.
(iii) If Purchaser and Sellers are unable to reach a
solution within the later of (x) 30 days of Sellers'
written notice of dispute to the
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Purchaser and (y) 5 days after Purchaser's delivery
of an adjusted Closing Statement pursuant to clause
(ii) above, the Purchaser and the Sellers shall
submit the items remaining in dispute for resolution
to a Big Six firm of independent accountants
(hereinafter, the "Third Accounting Firm"), to be
jointly selected by the Parties, or in case of
disagreement between them, by the Chairman of the
Chamber of Commerce of Torino. The Third Accounting
Firm shall, within 30 days after submission,
determine and report to the Parties upon such
remaining disputed items in accordance with the
provisions hereof. The report of the Third Accounting
Firm will be final, binding and conclusive on the
Parties hereto. The Third Accounting Firm shall make
such determination in its sole discretion on the
basis of the Accounting Principles. In the event the
Third Accounting Firm selected as indicated above
does not submit its determination and report within
the aforementioned deadline, as it may be extended by
mutual agreement of the Parties, the Purchaser and
the Common Representative on behalf of the Sellers
shall have the right to request the Chairman of the
Torino Chamber of Commerce to select a new Third
Accounting Firm that shall carry out the above
indicated activities. The fees and disbursements of
the Third Accounting Firm shall be allocated between
the Purchaser and the Sellers in the same proportion
that the aggregate amount of such remaining disputed
items so submitted to the Third Accounting Firm that
is unsuccessfully disputed by each (as finally
determined by the Third Accounting Firm) bears to the
total amount of such remaining disputed items so
submitted.
(iv) Within 5 days following the delivery of the report of
the Third Accounting Firm to the Parties hereto,
containing the determination of any disputed item,
any outstanding amount, plus interest calculated at
the Reference Rate from the Closing Date up to the
date of payment, shall be settled in accordance with
the provisions of Article 2.4.2 b).
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
---------------------------------------------
The Sellers make the representations and warranties set forth in Enclosure 3
hereto. The Sellers acknowledge that the representations and warranties made by
them are correct and true as of the date of this Agreement, that they shall be
correct and true as of the Closing Date and that the Purchaser is relying upon
such representations and warranties in connection with the purchase by it of the
Speedline Shares and thereby the Participation.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
-----------------------------------------------
The Purchaser makes the representations and warranties contained in Enclosure 4
hereto, and acknowledges that they are correct and true as of the date of this
Agreement and they shall be correct and true as of the Closing Date and that the
Sellers are relying upon such representations and warranties in connection with
the sale of the Speedline Shares and thereby the Participation.
ARTICLE 5
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
------------------------------------------
5.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES OF THE SELLERS. Unless otherwise
indicated herein, the representations and warranties of the Sellers contained in
this Agreement, Enclosures or Sellers' Disclosure Schedules hereto, and any
agreement, instrument, certificate or other document executed or delivered
pursuant hereto or thereto (it being understood that with regard to the
representations and warranties reference shall be made to Article 3 and
Enclosure 3 hereof) shall survive the Closing of the transactions contemplated
hereby until the end of the 24th month after the Closing Date, except for (a)
the representations and warranties provided under Sections 3.4, 3.5, 3.13, 3.22,
3.23, 3.34, 3.35 and 3.37 of Enclosure 3 as well as (b) the covenants of the
Sellers contained in this Agreement, Enclosures or Sellers' Disclosure Schedules
hereto concerning environmental matters, tax, title to the assets of the
Companies, title to the Speedline Shares and thereby the Participation, and the
covenants contained in Article 7 hereof, each of which shall survive until the
date of expiry of the applicable statute of limitation or the terms provided for
herein as the case may be.
5.2 SURVIVAL OF THE REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. Unless
otherwise provided herein, the representations and warranties of the Purchaser
contained in this Agreement, Enclosures hereto or in any document, certificate
or undertaking given pursuant hereto or thereto (it being understood that with
regard to the representations and warranties reference shall be made to Article
4 and Enclosure 4 hereof) shall survive the Closing of the transactions
contemplated hereby until the end of the 24th month after the Closing Date. The
Purchaser's representations and warranties and covenants as to any Additional
Purchase Price Shares to be delivered to the Sellers shall survive the Closing
of the transactions contemplated hereby until (x) delivery of the Additional
Purchase Price Shares in accordance with this Agreement and the Escrow Agreement
and (y) discharge of the Purchaser's obligation under Section 2.3 c) (ii) of
this Agreement, if any.
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5.3 INTERRUPTION DUE TO NOTICE OF CLAIM. It is agreed that in the event of a
Claim of Indemnity, the representations and warranties and covenants contained
in this Agreement, Enclosures or Schedules hereto, pursuant to which a Claim of
Indemnity has been delivered, the corresponding limitation of liability in
respect of any indemnification relating thereto and the corresponding guaranty
or other security therefor pursuant to this Agreement and/or the Escrow
Agreement, will continue to survive beyond the relevant terms indicated under
Sections 5.1 and 5.2. above, until the relevant Claim of Indemnity has been
resolved pursuant to Article 9 or, as the case may be, Article 10 of this
Agreement.
5.4 INDEPENDENT OBLIGATIONS. The Sellers and the Purchaser acknowledge and agree
that the representations, warranties and indemnities of the Sellers and the
Purchaser are autonomous and independent and that any right or remedy of the
Purchaser or the Sellers, respectively, however arising under this Agreement in
connection with any misrepresentation or breach of any warranty shall not be
subject to the statute of limitation periods and forfeiture restrictions under
Article 1495 c.c.
ARTICLE 6
CLOSING COVENANTS
-----------------
6.1 OPERATION OF THE BUSINESS PENDING THE CLOSING. (1) At all times during the
Interim Period, the Sellers, undertake that each of the Companies will conduct
its business and operations only in the ordinary course and consistent with past
practice, including but not limited to, maintaining normal working capital
levels consistent with past practice. In addition, except as permitted below,
the Sellers, jointly and severally, undertake that each of the Companies, during
the Interim Period, (unless otherwise agreed by the Parties) will not:
a) create, incur, assume, prepay or refinance any debt for money
borrowed, except for short-term indebtedness in the ordinary
course of business and consistent with past practice, not to
exceed the Companies' normal operating levels of short-term
indebtedness as well as indebtedness outstanding under the
existing Loans as of the date of this Agreement, or make any
loans, advance or capital contributions to, or investment in,
any Person;
b) increase in any manner the compensation (wages, salaries,
bonuses or other compensation) of any of its officers,
directors, "dirigenti" or employees, except if such increase
is required by Law or by collective labor agreements or
increases in the compensation of employees (other than
officers, directors, and "dirigenti") consistent with past
practice
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and in the ordinary course of business;
c) sell, transfer, or otherwise dispose of or agree to sell,
transfer, or otherwise dispose of, any properties or assets
(excluding inventory in the ordinary course of business and
consistent with past practice and through regular trade
channels), real, personal or mixed;
d) make any capital expenditures or capital additions or
improvements, which individually or in the aggregate exceed
the amounts set forth in the 1997 Operating Budget therefor;
e) pay or declare any dividend in cash or stock or other assets
or allow other equity withdrawal or make any distribution,
bonus or profit sharing distribution or similar payment in
cash or stock or other assets;
f) issue any stock, quotas or other securities (or rights to
acquire stock, quotas or other securities) of any of the
Companies;
g) incur any liability or obligation of any nature (whether
accrued, absolute, contingent or otherwise), except in the
ordinary course of business and consistent with past practice;
h) permit any of its property or assets to be subjected to any
Liens;
i) write-off as uncollectible any notes or accounts receivable,
except write- offs in the ordinary course of business and
consistent with past practice, charged to the bad debt
reserves or to the provision for contractual risks;
j) settle any pending claims or claims that arise in the Interim
Period by or against any of the Companies, or settle, cancel
or waive any material claims or rights of the Companies;
k) make any change in any method of accounting or auditing
practice;
l) cancel or reduce any of its insurance coverage;
m) permit any Authorization or any Intellectual Property Rights
to expire;
n) change the prices or other terms on which the Companies
purchase and sell raw material, finished goods, supplies and
other property; or
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o) agree, whether or not in writing, to do any of the foregoing.
(2) The Sellers undertake that, during the Interim Period, each of the
Companies will use its best efforts, to:
p) maintain adequate and appropriate levels of Inventory to carry
on the Business in the ordinary course, to accomplish the 1997
Profit Budget, and consistent with past practice as of
December 31, 1996;
q) keep available the services of its employees;
r) maintain the relations and goodwill with the suppliers,
customers, distributors and any others with which it has
business relations;
s) preserve the possession and control of its properties and
assets;
t) preserve the confidentiality of any confidential or
Proprietary Information of the Business;
u) pay and discharge its liabilities in the ordinary course of
business;
v) conduct the Business in such a manner that on the Closing Date
the representations and warranties of the Sellers contained in
this Agreement will be true, correct and complete as if such
representations and warranties were made on and as of such
date; and
w) promptly notify the Purchaser in writing of any change in
respect of items p) through v) hereof.
(3) During the Interim Period, the Sellers shall not sell, transfer, or
otherwise dispose of or agree to sell, transfer, or otherwise dispose of, any
shares, quotas, properties, assets, or other participation (financial or
otherwise).
(4) Prior to the Closing, the Sellers shall:
x) take all actions necessary to complete the April
Restructuring;
y) cause Speedline to enter into an agreement with Pitagora
S.r.l., a company organized under the laws of Italy with
registered office at Venezia, Zattere 1415 (hereinafter,
"Pitagora") to amend that certain purchase agreement dated
December 23, 1996 between them, with
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respect to the sale of Speedline's former operating facility
in Brescia (hereinafter, the "Brescia Plant") with retroactive
effect to the date thereof, to provide that Pitagora shall (1)
be liable for all actual, contingent and other liabilities
arising from or related to the ownership, operations or
activities of the Brescia Plant both prior to and after
December 23, 1996, and (2) release, hold harmless, indemnify
and defend Speedline from and against any and all such
liabilities;
z) obtain all required consents of, or give all required notice
to third parties under each of the Material Contracts, the
Master Agreement between Speedline Aluminia and the Provincia
di Bolzano, any guarantee (e.g., fideiussioni or any other
form of guarantee) or security granted by each of the
Companies in favor of any other Companies, and the Loans.
6.2 ACCESS TO INFORMATION AND DOCUMENTS. (a) During the Interim Period, the
Sellers shall give, and shall cause each of the Companies to give to the
Purchaser and to its agents and representatives (including, without limitation,
accountants, lawyers and appraisers) reasonable access during normal working
hours upon reasonable notice (i) to any and all of the properties, assets, Books
and Records, Corporate Records and other documents of the Companies, and (ii) to
any key personnel of the Companies to enable the Purchaser to make such
examinations and inspections as the Purchaser may reasonably determine are
necessary or appropriate. The Sellers shall provide, and undertake that Mr.
Xxxxxxxxx Xxxxxxxxx or other appropriate representatives shall provide the
Purchaser with such information and copies of such documents and records as the
Purchaser may reasonably request.
(b) Without limiting the foregoing Section 6.2(a), promptly upon the
Announcement Date, the Sellers shall arrange one or more meetings between the
Purchaser and the authorized representatives of Fiat, Audi and Mercedes-Benz
(hereinafter, the "Key Customers") with whom the Companies customarily
communicate on significant business matters. Mr. Xxxxxxxxx Xxxxxxxxx or other
appropriate representatives of the Sellers shall participate in such meetings
with the Purchaser.
6.3 ANTITRUST FILINGS. It is understood that the Purchaser, the Sellers and each
of the Companies shall cooperate in the preparation and delivery of any required
filings or documentation in connection with the antitrust filing made to the
Italian Competition Authority (Autorita Garante della Concorrenza e del Mercato)
and each Party shall provide any document and information and shall use all
reasonable efforts that may be necessary or useful to obtain the required
approval of the transactions contemplated hereby.
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6.4 NOTICE OF UNTRUE REPRESENTATION OR WARRANTY. The Sellers shall, and
undertake that the Companies shall, promptly notify the Purchaser upon any
representation or warranty of the Sellers contained in this Agreement becoming
untrue or incorrect as of or prior to the Closing Date.
6.5 ACTIONS TO SATISFY CLOSING CONDITIONS. The Parties hereby agree to take all
such reasonable actions within their power to control, and to use all reasonable
efforts to cause other actions to be taken which are not within their power to
control, so as to ensure compliance with all of the conditions set forth in
Article 8 below. Each of the Parties will cooperate with the others in obtaining
all other Authorizations, Consents, orders and approvals which are required in
connection with the consummation of the transactions contemplated by this
Agreement, and will take all reasonable actions to avoid the entry of any order
or decree by any Governmental Authority prohibiting the consummation of the
transactions contemplated hereby.
6.6 RISK OF LOSS. If, prior to the completion of the Closing, any material
property or material assets of the Companies is destroyed or damaged by fire or
any other casualty or is appropriated, expropriated or seized by any lawful
authority, the Purchaser shall have the option, exercisable by notice in writing
given within 30 (thirty) Business Days of the Purchaser receiving notice in
writing from the Sellers of such destruction, damage, expropriation or seizure:
(a) to reduce the Purchase Price by an amount equal to the cost of repair, or if
expropriated, seized, destroyed or damaged beyond repair, by an amount equal to
the replacement cost of the assets forming part of the assets so expropriated,
seized, damaged or destroyed and to complete the purchase, in which event all
cash proceeds of any insurance or compensation effectively realized by the
Companies, in relation to such expropriation, seizure, damage or destruction,
shall be paid pro-rata to the Sellers (and in this case the Sellers shall have
the option to assume the control of the relevant insurance claim); (b) to
complete the purchase without reduction of the Purchase Price, in which event
all proceeds of any insurance or compensation for expropriation, seizure, damage
or destruction shall be payable to the Companies, all rights and claims of the
Companies will remain with the Companies and all rights and claims of the
Sellers or any other Party to any such amounts not paid by the Closing Date
shall be assigned to the Purchaser; or (c) to terminate this Agreement if such
destruction, damage, expropriation or seizure materially interferes with the
operation of the Companies. The Sellers shall provide prompt notice to the
Purchaser of such destruction, damage, expropriation or seizure.
6.7 OPINIONS OF COUNSEL. The Sellers shall provide to the Purchaser legal
opinions, dated as of the Closing Date, from the Sellers' Counsel, in the form
of Enclosure 7 hereto. The Sellers shall assume and pay any and all legal fees
and costs deriving
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from the opinions rendered by such counsel.
6.8 CORPORATE ACTIONS. (a) The Sellers shall deliver the resignation of all the
Directors of the Companies effective as of the Closing Date. (b) The Sellers
shall use their best efforts so that the Statutory Auditors of the Companies
submit their resignation effective as of the Closing Date.
6.9 KEY MANAGERS. The Sellers will use their best efforts to cause the Key
Managers to execute a letter, substantially in the form of Enclosure 8, waiving
their right to resign, to the extent of the applicable law, from the Companies
pursuant to article 13 of the Collective Labor Agreement for Dirigenti
dell'Industria or to any other relevant applicable law.
6.10 PERFORMANCE. Each Party to this Agreement shall severally comply in all
material respects with all covenants, agreements and undertakings required by
this Agreement to be performed or complied with by each of them at or prior to
the completion of the Closing.
6.11 RELATED PARTY AGREEMENTS. At or prior to the Closing Date, the Companies
shall have entered into binding, purchase, supply, service or other appropriate
agreements reflecting their respective business activities with the following
companies on terms and conditions acceptable to the Purchaser (hereinafter, the
"Related Party Agreements"):
i) Metallic Alloys S.p.A.;
ii) MIM Ruote Alloy Wheels S.p.A.;
iii) Fusione e Lavorazioni Tecnologiche S.r.l..
6.12 PRESS RELEASES. The Sellers and the Purchaser will mutually agree upon any
public announcements pertaining to this Agreement and the purchase of the
Speedline Shares and thereby the Participation and shall not issue any such
public announcement, except as may be required by applicable law in the opinion
of Amcast's Securities Law counsel, in which case the Parties shall use all
reasonable efforts to consult, in good faith, with each other before issuing any
such public announcement. The Sellers shall use their best efforts to assure
compliance with this Section 6.12 by their respective Affiliates, shareholders,
directors, officers and employees.
6.13 CONSENTS. The Sellers shall make best efforts to obtain the consents to the
execution and delivery of this Agreement under the letters of patronage
indicated under Section 3.1(a) of Sellers' Disclosure Schedule.
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6.14 RELATED PARTY LEASES.
(a) The Sellers hereby agree to confirm to Speedline in writing
the intention of San Marco Finanziaria to negotiate in good
faith with Speedline an extension of the lease between San
Marco Finanziaria and Speedline of industrial property located
at Speedline's plant at Xxx Xxxxxxx, Xxxxx Xxxxx xx Xxxx (XX),
Xxxxx on terms and conditions equivalent to rates, terms and
conditions prevailing in the market for industrial property
leases between unrelated third parties. San Marco Finanziaria
hereby grants and shall deliver to Speedline (or at
Speedline's discretion one or more, of the other Companies) at
Closing an irrevocable right of first refusal, during the term
of the lease, to receive sufficient prior notice of any
proposed sale of the aforesaid property and of the relevant
terms and conditions thereof, and to purchase such property on
the same terms and conditions offered, in good faith, by any
ready, willing and able third party;
(b) at the Purchaser's request, the Sellers hereby agree to amend
or cause to be amended the other Real Property Leases, if any,
between Sellers (or any Affiliates thereof) and the Companies
by providing extensions of the terms of such Real Property
Leases for a period of at least six years automatically
renewable for a further period of six years at rental rates,
and on other terms and conditions, equivalent to rates, terms
and conditions prevailing in the markets where each property
is located for commercial leases between unrelated parties.
6.15 FLT OPTION. At the Closing, the Purchaser and the quotaholders of Fusione e
Lavorazioni Tecnologiche S.r.l., an Italian limited liability company, having
its registered office at Xxxxxxx xxx Xxxxxx (Xxxxxxx), Xxx X.X. Xxxxxxxx, 00,
("FLT") shall enter into an option agreement substantially in the form attached
to this Agreement as Enclosure 2 (the "FLT Option Agreement"). The Sellers
hereby agree to cause the quotaholders of FLT to execute the FLT Option
Agreement at the Closing and to perform the obligations thereof after the
Closing.
6.16 REVOCATION OF BANKING POWERS. At or prior to the Closing, the Sellers shall
revoke any and all banking powers to the persons indicated under Section 3.9 of
Sellers' Disclosure Schedule.
6.17 LEASES EXTENTION OR AMENDMENTS. At the Purchasers' request, the Sellers
shall use their best efforts to obtain extentions to the lease agreements
indicated under no. 4, 9, 10, 11of Section 3.25 of Sellers' Disclosure Schedule
for a period of at least 6 years starting from the Closing Date.
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ARTICLE 7
POST-CLOSING COVENANTS
----------------------
7.1 NON-COMPETITION CLAUSE. None of the Sellers shall, directly or indirectly
(including, without limitation, through companies, associations, joint ventures,
family members, relatives or other means): (i) engage, in the entire territories
of North America and Europe (as defined in Enclosure 1), in any activity which
may be directly, or indirectly, in competition with the Business, (ii) provide
any financing for or perform any service which may be in competition with the
Business or (iii) utilize its know-how with respect to the Business in a way
that is prejudicial to any of the Companies, its organizational structure or the
Business, for a period of five (5) years from the later of the Closing Date or
the date of termination of any applicable employment or consulting agreement
related to them, if any. Notwithstanding the foregoing, the Sellers shall have
the right to continue their current involvement in the manufacture and sale of
aluminum wheels and related products for the automotive after-market through
their current ownerships in MIM Ruote Alloy Wheels S.p.A. as of the date of this
Agreement. The Parties to this Agreement agree that, if any court or arbitrator
having jurisdiction over this Agreement holds invalid any aspects of the
non-competition covenants contained herein, such non-competition covenants and
obligations shall be limited but shall survive to the greatest extent permitted
by the applicable laws.
7.2 NON-SOLICITATION. Without prejudice to applicable laws on unfair
competition, for a period of five (5) years from the later of (i) the Closing
Date, or (ii) the date of termination of any applicable employment or consulting
agreement, the Sellers shall not in any way, directly or indirectly, solicit,
recruit, hire, assist others in recruiting or hiring, or discuss employment
arrangements with any employee of any of the Companies without the prior consent
of the Purchaser, and shall refrain from interfering with:
a) any employment arrangement between the Companies and their
employees;
b) any business relationship between the Companies and their
suppliers, or members of their distribution network, and shall
not in any way assist any Person in soliciting or entering
into agreements with any suppliers of the Companies or members
of their distribution network or solicit or enter into
agreement with members of the distribution network;
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c) the Companies' relationships with their respective customers;
d) any other business activity or relationship of the Companies
which could be interpreted, in good faith, as an interference
with the Business.
7.3 DUTY OF CONFIDENTIALITY. The Sellers shall keep strictly confidential and
shall not use, directly or indirectly, any of the information concerning the
Companies received, obtained by or otherwise known to them in any capacity.
7.4 CONSIDERATION. Sellers acknowledge to the Purchaser, on their own behalf and
on behalf of Sellers' Shareholders, that the Purchase Price, as adjusted, also
includes substantial and sufficient consideration for the above undertakings of
non-competition, non-solicitation and confidentiality.
7.5 MODIFICATION OF NAME. Speedline Holding shall cause its company's name to be
modified, removing the word "Speedline", and each Seller shall not use in any
way whatsoever the name "Speedline" or other similar name, except as provided in
Section 7.5 of Seller's Disclosure Schedule.
7.6 OBLIGATIONS TO BIND AFFILIATES, ETC. Each of the Corporate Sellers shall use
its best efforts to assure that its Affiliates, shareholders, directors,
officers and employees comply with the undertakings set forth in Sections 7.1,
7.2, 7.3 and 7.5 as if they were parties to this Agreement.
7.7 ENVIRONMENTAL PERMITTING AND REMEDIATION PLAN. (1) As soon as practicable
following the Closing, the Purchaser shall carry out the permitting and
remediation measures set forth in Enclosure 14 hereto with respect to health,
safety and environmental matters (the "Environmental Permitting and Remediation
Plan"). The Purchaser shall provide the Sellers with a budget submitted by a
reliable environmental firm as well as with all the relevant technical
specifications in order to perform the work required to complete the
Environmental Permitting and Remediation Plan and any other environmental
remediations or compliance measures which may be proposed by the Companies after
the Closing to be paid from the Environmental Holdback Amount other than
pursuant to an order of a Governmental Authority. Purchaser shall allow the
Sellers to have reasonable access to the premises and Books and Records of the
Companies necessary for determination of the responsibility for, necessity and
extent of any proposed action and reasonably to participate in any contacts with
Governmental Authorities. In the event the Sellers should object to the budget
presented by the Purchaser concerning the work, the technical specifications or
any other matter related to such work within fifteen (15) days from receipt of
said documents from the Purchaser, the Parties agree to have the relevant
matters in
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dispute determined by a third party jointly selected. In case the parties should
not agree in connection with the above selection, the third party shall be
selected by the Chairman of the Torino Chamber of Commerce.
(2) All out of pocket costs of such measures in excess of the Environmental
Holdback Amount incurred by the Purchaser pursuant to the Environmental
Permitting and Remediation Plan shall be paid to the Purchaser in accordance
with Section 9.2 of this Agreement. This Section 7.7 and the Environmental
Permitting and Remediation Plan shall not in any way limit the Purchaser's
rights and the Sellers' obligations of indemnification pursuant to Section
9.1(d) (ii).
7.8 ACCOUNTS RECEIVABLE. To the extent the Purchaser is indemnified in respect
of any uncollected account receivable, Purchaser shall assign to the Common
Representative its rights in respect of such receivable and the Common
Representative shall notify Purchaser in advance of any effort to collect such
receivable.
7.9 RELEASES. Within 60 days following the Closing, the Sellers shall cause the
Companies to be released as guarantors of any and all obligations of any third
party or any Affiliates of the Sellers other than the Companies, including,
without limitation, Speedline's guarantees of obligations of TEC Flam S.r.l.,
Interservizi S.r.l., Metallic Alloys S.r.l., Nuova Perani S.r.l. and Indel
S.r.l. and provide satisfactory evidence of such release to the Purchaser.
ARTICLE 8
CONDITIONS PRECEDENT OF THE CLOSING
-----------------------------------
8.1 CONDITIONS TO OBLIGATIONS OF ALL PARTIES. The respective obligations of the
Parties to consummate the transactions contemplated by this Agreement with
regard to the Closing are subject to the fulfillment at or prior to the Closing
Date of the following conditions:
8.1.1 NO LEGAL OBSTRUCTION. No injunction or other order issued by a court of
competent jurisdiction shall have been obtained (and be continuing) by any
Person restraining or prohibiting the consummation of the transactions
contemplated by this Agreement.
8.1.2 CHANGE IN LAW. Since the date hereof, no Law, proposed Law, any change in
any Law, or the interpretation or enforcement of any Law shall have been
introduced, or enacted the effect of which will be to prevent the Closing, to
increase materially the cost to the Seller or the Purchaser of the completion of
the transactions
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contemplated in this Agreement, or to materially adversely affect the
continuation of the Business after the Closing Date on substantially the same
basis as heretofore operated.
If the conditions in this Section 8.1, to be fulfilled at or prior to the
Closing Date, shall not have been fulfilled or performed, or waived by mutual
agreement of the Parties to the extent permitted by Laws, by such time, and such
conditions cannot be fulfilled within a reasonable time thereafter agreed upon
by the Parties, this Agreement shall be terminated pursuant to article 1353 of
the Italian Civil Code, and in such event both Parties shall be released from
all obligations hereunder.
8.2 CONDITIONS TO OBLIGATIONS OF PURCHASER. The obligation of the Purchaser to
consummate the transactions contemplated hereby shall be subject to the
fulfillment (or waiver by the Purchaser) at or prior to the Closing Date of the
following conditions, which are provided in the interest of the Purchaser:
8.2.1 BOARD OF DIRECTORS APPROVAL; AUDITED FINANCIAL STATEMENTS. a) The Board of
Directors of Amcast shall have approved this Agreement and the purchase of the
Speedline Shares and thereby the Participation. The Sellers acknowledge that
Amcast's Board of Directors' approval is a requirement to execute the Closing.
b) The Purchaser shall have received not later than August 4, 1997, i)
audited, aggregated financial statements (balance sheet and income statement) of
the Core Companies prepared in accordance with the Accounting Principles, as of
December 31, 1996 and for the year then ended, and ii) reviewed, consolidated
income statements of the Core Companies plus Alustampi and Autolambro prepared
in accordance with the Accounting Principles, as of May 31, 1997 and for the
five months then ended, which financial statements shall have been prepared by
Xxxxx & Young LLP (the "E&Y Financial Statements"). Further, the E&Y Financial
Statements shall indicate results of the Core Companies' or the Core Companies'
plus Alustampi's and Autolambro's, as the case may be, financial condition for
the relevant periods that are equal to or more favorable than as indicated in
the Financial Statements including, without limitation, in regard to net worth,
sales, operating income and net income of such Companies.
c) Purchaser shall have received written confirmation from Xxxxx &
Young LLP that such firm shall timely issue all audited, consolidated financial
statements of the Companies sufficient for purposes of compliance by Amcast with
all relevant Securities Laws.
8.2.2 REPRESENTATIONS AND WARRANTIES. (a) The representations and warranties
made
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by the Sellers in this Agreement shall be true and correct when made, during the
Interim Period, and at and as of the Closing Date as if such representations and
warranties were made at, and as of the Closing Date, except (i) for
representations made as of a specified date and for a specified period, which
shall be true and correct as of the specified date or for the specified period
or (ii) as affected by actions taken after the date hereof in accordance with
the terms of this Agreement or with the prior written consent of the Purchaser.
The Sellers shall have executed and delivered a closing certificate to that
effect.
(b) If at any time the Purchaser reasonably determines that any of the
covenants or representations and warranties contained in this Agreement or in
any other document delivered by the Sellers pursuant hereto are not true and
correct in any material respect, or if the Purchaser becomes aware of any
information not previously disclosed that could have a material adverse effect
on the Business, the Companies, or the Purchaser's operation thereof, the
Purchaser shall have the right to terminate this Agreement pursuant to Section
8.2.11 hereof. The Purchaser shall promptly notify the Sellers in writing if it
intends to terminate this Agreement in accordance with the terms of this Section
8.2.2(b).
8.2.3 PERFORMANCE. The Sellers and the Companies shall each have performed and
complied in all material respects with all covenants, agreements and
undertakings required by this Agreement to be performed or complied with by them
at or prior to the Closing Date. The Sellers each shall execute and deliver a
closing certificate to that effect.
8.2.4 OPINION OF SELLERS' COUNSEL. The Purchaser shall have received a legal
opinion dated the Closing Date from Sellers' Counsel substantially in the form
of Enclosure 7 hereto.
8.2.5 AGREEMENT WITH MR. ZACCHELLO AND KEY MANAGERS. Mr. Xxxxxxxxx Xxxxxxxxx
shall have entered into a consulting agreement with the Purchaser on terms and
conditions to be negotiated between Mr. Xxxxxxxxx Xxxxxxxxx and the Chief
Executive Officer of the Purchaser, and the following individuals employed by
the Companies shall have entered into employment agreements with the respective
Companies by which they are employed, substantially in the form of Enclosure 11
hereto:
- Xxxxx Xxxxxxxxx;
- Xxxxxxxx Xxxxxxx;
- Xxxxxxx Xxxxxxx;
- Xxxxxxxx Xxxxxxxx;
- Xxxxxxx Xxxxxxx.
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For such purposes the Purchaser and the Common Representative jointly shall
approach such employees and attempt to negotiate such agreements or terms and
conditions acceptable to such employees, respectively, and the Companies.
8.2.6 RESIGNATION. Each of the Directors of the Companies shall have submitted
their resignations effective as of the Closing Date in accordance with Section
6.8 hereof.
8.2.7 CLOSING CERTIFICATE. The Sellers shall have executed and delivered to the
Purchaser at the Closing the Closing Certificate, substantially in the form of
Enclosure 13.
8.2.8 DELIVERIES. The Sellers also shall have delivered to the Purchaser, at or
prior to the Closing, the following in form and substance reasonably
satisfactory to the Purchaser:
(a) the endorsed share certificates representing the Speedline
Shares, free and clear from any Liens, duly recording the
transfer in favor of the Purchaser, together with the
shareholders' book of Speedline containing the annotation
attesting that the Purchaser has been registered therein as
the holder of the Speedline Shares free and clear of any
Liens;
(b) notarized copies of all corporate resolutions or appropriate
corporate powers of the Corporate Sellers approving the
entering into of this Agreement and the completion of all
transactions contemplated hereunder;
(c) letters, if any, from the Key Managers, executed pursuant to
Section 6.9 indicating that they waive their right to resign
from the Companies pursuant to article 13 of the Collective
Labor Agreement for Dirigenti dell'Industria, to be entered
into substantially in the form of Enclosure 8;
(d) notarized copies of the powers of attorney granted by each
Seller's representative, approving the entering into of this
Agreement and any other document indicated herein and the
completion of all transactions contemplated hereunder;
(e) a certificate of status, compliance and good standing
("certificato di vigenza" or other equivalent certificate) for
each of the Companies;
(f) a certificate, executed by the Sellers, attesting that there
has been no
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material adverse change in the assets, liabilities,
operations, earnings, prospects, conditions (financial or
otherwise) or business of any the Companies since the date of
the Financial Statements;
(g) all shareholders' or equivalent books and all share
certificates of the Companies;
(h) the certificate executed by the Sellers and duly signed by
each of the Sellers in accordance with the provisions set
forth under Section 8.2.2 and 8.2.3;
(i) the Closing Certificate, substantially in the form of
Enclosure 13;
(j) jointly with the Purchaser and the Escrow Agent, the Escrow
Agreement pursuant to Section 2.3 c)(i);
(k) the Related Party Agreements pursuant to Section 6.11;
(l) the notarial deed and the quotaholders' book of Autolambro
evidencing that Speedline Aluminia owns all the quotas of such
company;
(m) the notarial deed and the quotaholders' book of Alustampi
evidencing that Speedline owns all the quotas of such company;
(n) the amendment of the agreement as indicated under Section
6.1(4)(y) duly executed between the parties thereto;
(o) appropriate documentation evidencing that pre-closing
covenants indicated under Section 6.1(4)(x), and 6.1(4)(z)
have been properly and satisfactorily completed;
(p) the Sellers' written confirmation, right of first refusal and
undertakings pursuant to Section 6.14 hereof in form and
substance reasonably satisfactory to the Purchaser;
(q) the personal guarantee of Mr. Xxxxxxxxx Xxxxxxxxx in the form
attached to this Agreement as Enclosure 15;
(r) the consents pursuant to the letters of patronage referred in
Section 6.13;
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(s) the consents referred in Section 6.1(4) (z);
(t) the FLT Option Agreement pursuant to Section 6.15;
(u) the banking powers revocations referred in Section 6.16;
(v) the lease amendments and extentions referred in Section 6.17;
(w) any policies of insurance then in force covering pollution or
business interruption perils insuring any of the Companies;
and
(x) full release of Speedline's guarantee of the performance of
Speedline Holding under a contract with Norsk Hydro A.S. dated
July 7, 1997 concerning payment in favor of Hydro Aluminium
A.S..
8.2.9 MATERIAL ADVERSE CHANGE. There will have been no material adverse change
in the condition (financial or otherwise), assets, liabilities, operations,
earnings, prospects or Business of the Companies since the date of the Financial
Statements.
8.2.10 SATISFACTORY MEETINGS WITH KEY CUSTOMERS. The meetings referred to in
Section 6.2(b) shall have occurred and Purchaser, in its reasonable discretion,
shall have been satisfied as to the likelihood, quality and extent of the
continuing customer relationship between the Companies and the Key Customers.
The Purchaser shall promptly inform the Sellers in writing if such meetings are
unsatisfactory and shall describe in a notice in reasonable detail the reason
for such dissatisfaction. Without limiting the Purchaser's rights to terminate
this Agreement, the Sellers with the Purchaser may re-contact the Key Customers
directly to attempt to accomplish a meeting that is satisfactory to the
Purchaser.
8.2.11 TERMINATION OF AGREEMENT BY PURCHASER. If any condition, obligation or
covenant in this Section 8.2, shall not have been fulfilled or performed in any
material respect at or prior to the Closing Date, the Purchaser may terminate
this Agreement by notice in writing to the Sellers, and in such event the
Purchaser shall be released from all obligations hereunder, provided that the
non-fulfillment or non-performance shall be material for the purposes of the
transactions contemplated herein. Notwithstanding the foregoing, the Purchaser
shall be entitled to waive compliance with any of such conditions, obligations
or covenants, in whole or in part, if it sees fit to do so, without prejudice to
any of its rights of termination in the event of non-performance of any other
condition, obligation, or covenant in whole or in part. In the event the
Purchaser terminates this Agreement pursuant to this Section 8.2.11 as a result
of the failure of the condition described in either Sections 8.2.1 (b) or
8.2.10,
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the Sellers shall pay to the Purchaser, up to a maximum amount of $ 350,000,
one-half of the usual and customary expenses reasonably incurred by the
Purchaser arising from or in connection with this Agreement, and the other
agreements and transactions contemplated herein, including but not limited to
due diligence fees and expenses incurred by Purchaser and its agents.
8.3 CONDITIONS TO OBLIGATIONS OF THE SELLERS. The obligation of the Sellers to
consummate the transactions contemplated hereby shall be subject to the
fulfillment at or prior to the Closing Date of the following additional
conditions.
8.3.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties made by
the Purchaser in this Agreement shall be true and correct in all material
respects when made and at and as of the Closing Date as if such representations
and warranties were made at and as of the Closing Date. The Purchaser shall have
executed and delivered a closing certificate to that effect.
8.3.2 PERFORMANCE. The Purchaser shall have performed and complied in all
material respects with all covenants and agreements required by this Agreement.
The Purchaser shall deliver a closing certificate to that effect.
8.3.3 DELIVERIES. The Purchaser shall have delivered to the Sellers at the
Closing:
(a) the Initial Purchase Price , and the written confirmation of
receipt of the Additional Purchase Price Stock by the Escrow
Agent;
(b) in form and substance reasonably satisfactory to the Sellers,
a certified copy of the resolutions of the Board of Directors
of the Purchaser approving the entering into of this Agreement
and the completion of all transactions contemplated hereunder;
(c) the Deferred Payment Guarantee in accordance with Section 2.3
d);
(d) the Closing Certificate, substantially in the form of
Enclosure 13; and
(e) the Escrow Agreement pursuant to Section 2.3 (c) (i).
8.3.4 TERMINATION OF AGREEMENT BY SELLERS. If any condition, obligation or
covenant of the Purchaser to be performed at or prior to the Closing Date as
provided in this Section 8.3 shall not have been fulfilled or performed in any
material respect by such time acting in good faith, the Sellers may terminate
this Agreement by notice in writing to the Purchaser, and in such event the
Sellers shall be released from all
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obligations hereunder, provided that the non-fulfillment or non-performance
shall be material for the purposes of the transactions contemplated herein.
Notwithstanding the foregoing, the Sellers shall be entitled to waive compliance
with any of such conditions, obligations or covenants in whole or in part if
they see fit to do so, without prejudice to any of their rights of termination
in the event of non-performance of any other condition, obligation or covenant
in whole or in part.
ARTICLE 9
INDEMNIFICATION BY THE SELLERS
------------------------------
9.1 INDEMNIFICATION BY THE SELLERS. Subject to this Article 9, from and after
the Closing Date, the Sellers agree to indemnify and/or hold harmless the
Purchaser and the Companies from all Losses suffered or incurred by the
Purchaser and/or the Companies as a result of, or arising out of, or in
connection with:
(a) any breach by the Sellers of, or any inaccuracy of any
representation or warranty of the Sellers contained in this
Agreement or in any agreement, certificate or other document
delivered pursuant hereto;
(b) any breach or non-performance by the Sellers of any covenant
or undertaking to be performed by each of them that is
contained in this Agreement or in any agreement, certificate
or other document delivered pursuant hereto;
(c) any and all debts, liabilities whatsoever (whether accrued,
absolute, contingent or otherwise) of the Companies existing
at the Closing Date, and/or related to events that occurred or
conditions that existed prior to the Closing Date including,
without limitation, notwithstanding the disclosures set forth
in the Sellers' Disclosure Schedule, any liabilities for Taxes
for any period up to and including the Closing Date, and not
provided for or included or disclosed in the Financial
Statements;
(d) notwithstanding the disclosures set forth in the Sellers'
Disclosure Schedule: (i) products manufactured or sold by the
Companies prior to the Closing Date; (ii) notwithstanding the
payment of the Environmental Holdback Amount and the
Environmental Permitting and Remediation Plan, any and all
events that occurred or conditions existing prior to the
Closing Date pertaining to violations of Environmental Laws
and Environmental Permits whether or not known to the
Purchasers or the Sellers; (iii) the April Restructuring; (iv)
operations of the Companies prior to the Closing in areas of
activity other than the Business including,
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without limitation, operations of Speedcast prior to its
acquisition by Speedline Holding, and the operations of the
Brescia Plant; and (v) any failure by the Companies to comply
with the terms and conditions of the Loans prior to Closing.
9.2 LIABILITY OF THE SELLERS. For the purpose of this Article 9, it is agreed as
follows:
a) i) From and after the Closing Date, the Sellers shall
indemnify and hold harmless the Purchaser pursuant to Section
9.1 for any and all Losses incurred by the Purchaser and/or
the Companies pursuant to this Agreement (hereinafter, the
"Purchaser's Losses"). Each of the Sellers shall indemnify the
Purchaser for that portion of the Purchaser's Losses
equivalent to such Seller's Initial Purchase Price Fraction
thereof, provided, that Xxxxxxxxx Zacchello's guarantee
pursuant to Section 9.2 a) iv) and 9.2 (a) (v) shall not be
limited by this Section 9.1 a) i), and further provided, that
the amount of the Purchaser's Losses allocable to Gerance in
excess of the limit set forth in Section 9.8 e) shall be
indemnified by each Seller in the proportion that the number
of Speedline Shares owned by such Seller immediately prior to
the Closing bears to the total number of issued and
outstanding Speedline Shares excluding those Speedline Shares
owned by Gerance.
ii) The Parties hereby agree (but without limitation upon
Section 2.4.2(b)) that at and as of the dates set forth below,
the Sellers' obligations (x) to pay any adjustments to the
Purchase Price under Article 2, (y) to indemnify the
Purchaser's Losses under Article 9 of this Agreement, and (z)
to pay any costs or expenses of the Environmental Permitting
and Remediation Plan in excess of those paid from
Environmental Holdback Amount shall be secured by the Deferred
Payment, the Additional Purchase Price Shares, and any amount
of the Contingent Payment owed to the Sellers, in the amounts
set forth below as to each date:
A) on the Closing Date, $ 16,500,000 plus the
full amount of the Contingent Payment to the
extent same shall become available for
payment ("Guaranty Amount I);
B) on the Second Anniversary, the amount of any
Claims of Indemnity pending but not yet paid
on such date, plus the lesser of (1)
Guaranty Amount I less Claims of Indemnity
paid to the Purchaser between the Closing
Date and the
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Second Anniversary, and (2) $6,500,000.00
plus the amount of the Contingent Payment
to the extent available for payment
("Guaranty Amount II");
C) on January 1, 2000, the amount of any Claims
of Indemnity pending but not yet paid on
such date, plus the lesser of (1) Guaranty
Amount II less Claims of Indemnity paid to
the Purchaser between the Second Anniversary
and January 1, 2000, and (2) $ 6,500,000.00
("Guaranty Amount III");
D) on January 1, 2001, the amount of any Claims
of Indemnity pending but not yet paid on
such date, plus the lesser of (1) Guaranty
Amount III, less the amount of any Claims of
Indemnity paid to the Purchaser prior to
such date, and (2) $4,300,000.00 ("Guaranty
Amount IV");
E) on January 1, 2002 until expiration of the
Sellers' representations, warranties and
covenants under this Agreement, the amount
of any Claims of Indemnity pending but not
yet paid on January 1, 2002, plus the lesser
of (1) Guaranty Amount IV less the amount of
any Claims of Indemnity paid to the
Purchaser prior to such date, and (2)
$2,150,000.00 ("Guaranty Amount V").
iii) It is agreed that, except as provided in Section 2.4.2
(b), any indemnification or other payment due to the Purchaser
pursuant to this Agreement first will be deducted from the
Deferred Payment. In the event the Deferred Payment is not
available or is not sufficient to cover payments due to the
Purchaser, such amounts shall be deducted from the Contingent
Payment up to the outstanding amount owed to the Sellers, if
any. In the event the Contingent Payment is not available or
is not sufficient to payments due to the Purchaser, such
amounts shall be paid out of the Additional Purchase Price
Stock pursuant to the terms hereof and of the Escrow
Agreement.
iv) It is also understood that to the extent that at any time
and subject to Section 9.2 a) ii) of this Agreement, the
amounts of the indemnification or other payments due to the
Purchaser exceed the sum of the Deferred Payment, the
Contingent Payment, if any, and the value of the Additional
Purchase Price Stock then available, and/or the
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Purchaser is not able (due to whatever circumstance) to
recover the amount due to it, the Sellers will be liable to
the Purchaser for the amount not so recovered. It is agreed
that any indemnification and other amounts payable by the
Sellers to the Purchaser pursuant to this Agreement, are
secured by Mr. Xxxxxxxxx Xxxxxxxxx in his capacity of
"fideiussore" of the Sellers pursuant to Article 1944 c.c. and
in accordance with a personal guarantee in the form of
Enclosure 15 hereto, which Xxxxxxxxx Xxxxxxxxx shall deliver
to the Purchaser at the Closing.
v) At such time or times the Sellers shall be obligated to
make any payments pursuant to this Agreement, the Purchaser
shall have the right to immediately demand and obtain payments
due to it under this Agreement directly from Xxxxxxxxx
Xxxxxxxxx as "fideiussore" for the Sellers under the guarantee
referred to in Section 9.2 (a) (iv) provided, that the
Purchaser shall have made written demand for payment upon the
Sellers and the amount demanded shall not have been paid to
the Purchaser within 15 days after such demand.
b) In the event of a reduction of any amount from the Deferred
Payment by the Purchaser the Sellers shall cause the amount of
Deferred Payment Guarantee to be reduced by such amount
promptly upon notice from the Purchaser of such reduction or,
if there is a dispute concerning such reduction, within 5 days
after resolution of such dispute by mutual agreement or upon
decision of the arbitrators pursuant to Article 10 hereof. Any
failure by the Sellers to cause a reduction in the Deferred
Payment Guarantee in accordance with this Section 9.2 b) shall
constitute a material breach of this Agreement.
c) The Sellers shall be deemed to act as one party for the
purposes of Article 10 in respect of any dispute which may
arise between the Sellers and the Purchaser in connection with
the Purchaser's rights under this Article 9.
d) To the extent the Corporate Sellers are unable, for any
reason, to fulfill any of their obligations pursuant to
Sections 9.1 and 9.2, the Corporate Sellers hereby agree to
use their respective best efforts to cause their shareholders
to assume and pay such obligations.
e) In the event that the Companies are eligible to participate in
any tax or social security amnesty programs offered by the
Italian national tax
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41
authority ("Tax Amnesties"), the Sellers shall have the right
to request that the Companies participate in any such amnesty
programs. If any Company or the Companies collectively elect
to participate in any Tax Amnesty, then the Sellers shall pay
in cash the entire amount due in respect of such Tax Amnesty
to the applicable Governmental Authority, and the Sellers
shall then have no further obligations to indemnify the
Purchaser with respect to the periods and taxes specified by
such Tax Amnesty. Any such payments by the Sellers shall be
counted for purposes of limits on indemnification set forth in
Section 9.8. If any Company declines to participate in any Tax
Amnesty as to any matter or time period, then the Sellers'
obligation to indemnify the Purchaser as to such matter and
time period shall be limited to the amount which otherwise
would have been paid by Sellers to obtain the Tax Amnesty.
9.3 INDEMNIFICATION BY THE PURCHASER. Subject to this Article 9, from and after
the Closing Date, the Purchaser agrees to indemnify and hold harmless the
Sellers from all Losses suffered or incurred by the Sellers as a result of, or
arising out of, or in connection with:
(a) any breach by the Purchaser or any inaccuracy of any
representation or warranty contained in this Agreement or in
any certificate or other document delivered pursuant hereto;
(b) any breach or non-performance by the Purchaser of any covenant
or undertaking to be performed by it that is contained in this
Agreement or in any certificate or other document delivered
pursuant hereto.
9.4 NOTICE OF CLAIM. In the event that a Party (hereinafter, the "Indemnified
Party") shall become aware of any claim, proceeding or other matter in respect
of which another Party (hereinafter, the "Indemnifying Party") agreed to
indemnify the Indemnified Party pursuant to this Agreement (hereinafter, a
"Claim of Indemnity"), the Indemnified Party shall promptly give written notice
thereof to the Indemnifying Party. Such notice (which will have the effect
indicated under Section 5.3 of this Agreement) shall specify whether the Claim
of Indemnity arises as a result of a claim by a Person against the Indemnified
Party (hereinafter, a "Third Party Claim") or whether the Claim of Indemnity
does not so arise (hereinafter, a "Direct Claim"), and shall also specify with
reasonable particularity (to the extent that the information is available) the
factual basis for the Claim of Indemnity and the amount of the Claim of
Indemnity, if known, together with copy of any relevant documents to the extent
available.
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If, through the fault of the Indemnified Party, the Indemnifying Party does not
receive notice of any Claim of Indemnity in time to contest effectively the
determination of any liability susceptible of being contested, the Indemnifying
Party shall be entitled to set off against the amount claimed by the Indemnified
Party the amount of any Losses incurred by the Indemnifying Party resulting
directly from the Indemnified Party's failure to give such notice on a timely
basis.
9.5 DIRECT CLAIMS. With respect to any Direct Claim, following receipt of notice
from the Indemnified Party of the Claim of Indemnity, the Indemnifying Party
shall have 30 days to make such investigation of the Claim of Indemnity as it
considers necessary or desirable. For the purpose of such investigation, the
Indemnified Party shall make available to the Indemnifying Party the information
relied upon by the Indemnified Party to substantiate the Claim of Indemnity,
together with all such other information as the Indemnifying Party may
reasonably request. If both Parties agree at or prior to the expiration of such
30 day period (or any mutually agreed upon extension thereof) to the validity
and amount of such Claim of Indemnity, the Indemnifying Party shall immediately
pay to the Indemnified Party the full agreed amount of the Claim of Indemnity,
failing which the matter shall be referred to binding arbitration as provided
pursuant to the provisions of Article 10 hereof.
9.6 THIRD PARTY CLAIMS. With respect to any Third Party Claim, the Indemnifying
Party shall have the right, at its expense, to participate in or assume control
of the negotiation, settlement or defense of the Claim of Indemnity and, in such
event, the Indemnifying Party shall reimburse the Indemnified Party for all of
the Indemnified Party's out-of-pocket expenses as a result of such participation
or assumption. If the Indemnifying Party elects to assume such control, the
Indemnified Party shall have the right to participate in the negotiation,
settlement or defense of such Third Party Claim and to retain counsel to act on
its behalf, provided that the fees and disbursements of such counsel shall be
paid by the Indemnified Party unless the Indemnifying Party consents to the
retention of such counsel or unless the named parties to any action or
proceeding include both the Indemnifying Party and the Indemnified Party and a
representation of both the Indemnifying Party and the Indemnified Party by the
same counsel would be inappropriate due to the actual or potential differing
interests between them (such as the availability of different defenses). If the
Indemnifying Party, having elected to assume such control, thereafter fails to
defend the Third Party Claim within a reasonable time, the Indemnified Party
shall be entitled to assume such control, and the Indemnifying Party shall be
bound by the results obtained by the Indemnified Party with respect to such
Third Party Claim. If any Third Party Claim is of a nature such that the
Indemnified Party is required by applicable law to make a payment to any third
party with respect to the Third Party Claim before the completion of settlement
negotiations or related legal proceedings, the Indemnified
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Party may make such payment and the Indemnifying Party shall, forthwith after
demand by the Indemnified Party, reimburse the Indemnified Party for such
payment. If the amount of any liability of the Indemnified Party under the Third
Party Claim in respect of which such payment was made, as finally determined, is
less than the amount that was paid by the Indemnifying Party to the Indemnified
Party, the Indemnified Party shall, forthwith after receipt of the difference
from such third party, pay the amount of such difference to the Indemnifying
Party.
9.7 SETTLEMENT OF THIRD PARTY CLAIMS. (1) If the Indemnifying Party fails to
assume control of the defense of any Third Party Claim, the Indemnified Party
shall have the exclusive right to contest, settle or pay the amount claimed.
Whether or not the Indemnifying Party assumes control of the negotiation,
settlement or defense of any Third Party Claim, the Indemnifying Party shall not
settle any Third Party Claim without the written consent of the Indemnified
Party, which consent shall not be unreasonably withheld or delayed. In the event
the Indemnified Party shall not provide its written consent to the settlement,
the Indemnifying Party's obligation to indemnify shall be limited to (i) the
amount of the lesser or the lowest good faith settlement proposal made or
confirmed in writing at any time since the commencement of the foregoing Third
Party Claim, and (ii) the amount of the counsel fees and cost of proceedings
incurred prior to the rejection of said settlement proposal. (2) Any Indemnified
Party shall use its reasonable efforts to mitigate expenditures, losses, damages
and liabilities to be indemnified under Section 9.1 or 9.3 above.
9.8 Limitation of Liability.
-----------------------
a) The Sellers' obligation to indemnify the Purchaser pursuant to
Section 9.1(d)(iii) shall be unlimited as to duration and
amount.
b) The Sellers' obligation to indemnify the Purchaser for Losses
arising from or related to the temporary or permanent closure
or restriction of use of any of the Buildings and Fixtures,
Owned Properties and Leased Properties due to the Companies'
lack of any Environmental Permit shall be limited to the
Adjusted Purchase Price excluding the amount of any unearned
portion of the Contingent Payment (the "Cap Price").
c) The Sellers' obligations to indemnify the Purchaser pursuant
to Section 9.1(d)(ii), other than the obligations referred to
in Section 9.8 (b), shall be subject to the limitations of
Section 9.8(d), but not to the limitations of Section
9.8(d)(i).
d) The following limitations shall apply to the Sellers'
obligations to
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indemnify the Purchaser pursuant to Section 9.1 and 9.2 of
this Agreement with respect to all Losses other than those
matters described in Sections 9.8 (a) and 9.8(b), provided,
that the limitations set forth in Section 9.8 d) shall not
apply to any payments due in respect of the Adjusted Purchase
Price, and the limitations set forth in Section 9.8(d)(i)
shall not apply to matters described in Section 9.8(c):
(i) the Sellers shall have the obligation to make
payments to the Purchaser with respect to Claims of
Indemnity only if and to the extent that the
aggregate total of Claims of Indemnity payable by the
Sellers to the Purchaser exceeds TWO HUNDRED FIFTY
THOUSAND DOLLARS ($ 250,000.00), in the full amount
of the excess;
(ii) the maximum amount payable to the Purchaser by the
Sellers with respect to Claims of Indemnity notified
by the Purchaser on or prior to December 31, 1999
shall be equal to 50% of the Cap Price, and Claims of
Indemnity notified by the Purchaser prior to such
date shall remain subject to that limitation
notwithstanding any lower limitation applicable
thereafter;
(iii) the maximum amount payable to the Purchaser by the
Sellers with respect to Claims of Indemnity notified
by the Purchaser between January 1, 2000 and December
31, 2000 shall be equal to 25% of the Cap Price, plus
the amount of any Claims of Indemnity notified by the
Purchaser prior to such date and not yet settled
pursuant to Articles 9 and 10 of this Agreement;
Claims of Indemnity notified by the Purchaser during
the period mentioned in this Section 9.8(d)(iii)
shall remain subject to such 25% limitation
notwithstanding any lower limitation applicable
thereafter;
(iv) the maximum amount payable to the Purchaser by the
Sellers with respect to Claims of Indemnity notified
by the Purchaser between January 1, 2001 and December
31, 2001 shall be equal to 16.67% of the Cap Price,
plus the amount of any Claims of Indemnity notified
by the Purchaser prior to such date and not yet
settled pursuant to Articles 9 and 10 of this
Agreement; Claims of Indemnity notified by the
Purchaser during the period mentioned in this Section
9.8(d)(iv) shall remain subject to such 16.67%
limitation notwithstanding any lower limitation
applicable
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thereafter;
(v) the maximum amount payable to the Purchaser by the
Sellers with respect to Claims of Indemnity notified
by the Purchaser from and after January 1, 2002 shall
be equal to 8.33% of the Cap Price plus the amount of
any Claims of Indemnity notified by the Purchaser
prior to such date;
(vi) anything to the contrary herein notwithstanding, the
maximum cumulative amount payable to the Purchaser
with respect to Claims of Indemnity under this
Agreement that are subject to this Section 9.8(d)
shall not exceed 50% of the Cap Price.
e) Anything to the contrary in this Agreement or the other
agreements and instruments delivered in connection herewith
notwithstanding, Gerance shall not be obligated to make
payments to the Purchaser in regard to adjustments to the
Purchase Price, indemnification, payments pursuant to the
Environmental Permitting and Remediation Plan or otherwise,
except by Purchaser's withholding of payment to Gerance of its
portion of the Deferred Payment or the Contingent Payment, if
any, and by withdrawal pursuant to the Escrow Agreement, and
in accordance with its terms, of the Additional Purchase Price
Shares issued to Gerance. This Section 9.8 e) shall not in any
way limit the Purchaser's right to seek and obtain payment
from the Sellers other than Gerance with respect to the full
amount of any and all payments due to the Purchaser.
f) The Purchaser's obligation to indemnify the Sellers pursuant
to Section 9.3 of this Agreement shall be limited to the Cap
Price and shall be subject to the limitations set forth in
Section 9.8(d), MUTATIS MUTANDIS.
9.9 CALCULATION OF INDEMNIFICATION. For the purpose of this Article 9 the
liability of the Indemnifying Party shall be net of any tax benefit effectively
realized by the relevant Indemnified Party as jointly determined by the Parties'
independent public accountants. However, if the indemnification to be paid by
the Indemnifying Party is taxable to the relevant Indemnified Party, the
indemnification shall be increased by an amount sufficient to cover the relevant
tax to be paid up to the amount of the gross indemnification by the Indemnified
Party as a result of the indemnification.
9.10 PAYMENT OF AMOUNTS. Payments of all amounts due as a result of indemnities
provided in this Article 9, plus interest calculated at the Reference Rate from
the date of the notice of claim up to the date of the actual payment of any
amount due, shall
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be made promptly following such determination, but in no event later than 30
Business Days after such determination.
9.11 NO WAIVER. Except as specifically identified in the Sellers' Disclosure
Schedule and except for items disclosed prior to the Closing Date by the Sellers
to the Purchaser, in writing, specifically identifying the issue and making
reference to this Section 9.11, no investigations made by or on behalf of the
Purchaser, pursuant to this Agreement or otherwise, will have the effect of
waiving, diminishing the scope of, or otherwise affecting any representations,
warranties, covenants or indemnities made in this Agreement, or any other remedy
available to the Purchaser pursuant to the applicable law.
ARTICLE 10
ARBITRATION
-----------
10.1 GENERAL. Unless settled by mutual agreement, any dispute or difference
whatsoever that might arise from the performance or as to the meaning of this
Agreement or as to any matter or items of whatsoever nature howsoever arising
out of or in connection with this Agreement, shall be submitted to arbitration
in accordance with and subject to the Rules of Arbitration and Conciliation of
the International Chamber of Commerce in Paris, France, and finally settled by
three arbitrators appointed in accordance with such rules then in force. For the
purpose of this Agreement, it is understood that the Sellers shall be deemed to
act as one party in respect of any dispute which may arise between the Sellers
(or any of them) and the Purchaser.
The panel of arbitrators will be appointed as follows: each Party will appoint
an arbitrator; 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 30 days from the appointment of the two arbitrators
appointed by the Parties or one of the Parties has not appointed its arbitrator
within 15 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 President of the Court of Arbitration of the
International Chamber of Commerce in Paris upon request of any of each of the
Parties.
10.2 PLACE OF ARBITRATION. Unless otherwise agreed to in writing by the Parties,
the arbitration will take place in Paris, France, unless otherwise agreed, in
the English language, provided that the arbitrators shall be fluent in the
English and Italian languages.
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10.3 COSTS OF ARBITRATION. Each Party shall pay its own counsel's fees and
costs. The cost of any arbitration will be assessed against the unsuccessful
Party, with respect to any claim unsuccessfully disputed by the relevant Party,
and the arbitrators will be required to make such cost allocation, if any, part
of any ruling issued by them.
10.4 ITALIAN LAW. The arbitrators shall decide the dispute according to Italian
substantive law and pursuant to the rules of procedure applied by the Rules of
Arbitration and Conciliation of the International Chamber of Commerce in Paris,
France with respect to international arbitration rules; provided, however, that
any disputes submitted by the Sellers pursuant to Article 2 shall be resolved in
accordance with the provisions thereof.
ARTICLE 11
MISCELLANEOUS
-------------
11.1 NOTICES. (1) Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be delivered in person,
transmitted by fax, or sent by international air courier service or registered
mail, charges prepaid, addressed as follows:
If to the Sellers, to:
acting as Common Representative: Mr. Xxxxxxxxx Xxxxxxxxx
Xxx Xxxxx 0000
Xxxxxx, Xxxxx
Telefax: x00-00-00-000-00 c/o San Marco Finanziaria
with copies to: Avv. Xxxxxxxxx Xxxxxxxxx
Camilotti - Xxxxxx - Polettini
Xxxxxxxx Xxxxxxxx, 0
Xxxxxx, Xxxxx
Telefax: x00-00-000-000
If to the Purchaser, to: Amcast Industrial Corporation
0000 Xxxxxxxxxx Xxxxxxx Xxxxx
Xxxxxx, Xxxx 00000-0000 XXX
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To the attention of: Mr. Xxxx X. Xxxxx
President and Chief Executive Officer
Telefax: x0-000-000-0000
with copies to: Xxxxxxx X. Xxxxxxxxxxx, Esq.
Xxxxxxxx Hine & Xxxxx, LLP
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxx 00000-0000 XXX
Telefax: x0-000-000-0000
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49
- and -
Avv. Xxxxxxxxx Xxxxxx
Xxxxxx, Origoni & Partners
Xxx Xxxxx Xxxxxxx Xxxxxxx, 00
00000 Xxxx, Xxxxx
Telefax: x00-0-0000000
(2) Any such notice or other communication shall be deemed to have been
given on the day on which it was received (or, if such day is not a Business
Day, on the next following Business Day).
(3) Any party may at any time change its address for service from time
to time by giving notice to the other Parties in accordance with this Section
11.1.
11.2 EXPENSES. Except as provided in Section 8.2.11, the Purchaser and the
Sellers shall each bear their own expenses, costs and fees (including, without
limitation, brokers', investment bankers', attorneys' and auditors' fees) in
connection with the transactions contemplated hereby, including the preparation
and execution of this Agreement and compliance with its terms, whether or not
the transactions contemplated hereby shall be consummated. Any cost and expense
(including the notarial fees) to be borne in connection with the transfer of the
Speedline Shares shall be paid equally by the Parties. However, the cost of the
Fissato Bollato for the sale of the Speedline Shares will be paid by the
Purchaser. Any and all expenses, costs and fees incurred by the Sellers
described in the first sentence of this Section 11.2 that are not paid prior to
the Closing Date shall be paid by the Individual Shareholders.
11.3 ASSIGNMENT; NO THIRD PARTY BENEFICIARIES. 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 permitted assigns, and such
successors and permitted assigns shall have the benefit of the indemnities set
forth in Article 9 hereof. This Agreement and the rights, interests and
obligations hereunder shall not be assigned by the Purchaser or the Sellers
without the prior written consent of the other Party, and any attempt to assign
this Agreement without consent shall be void and of no effect; provided,
however, that the Purchaser may assign this Agreement and the rights, interests
and obligations hereunder to any Affiliate of the Purchaser without the prior
written consent of the Sellers, it being understood that Amcast will guarantee
the performance of the obligations of the Purchaser contained in this Agreement
(x) by the Purchaser, to the extent Amcast is not the Purchaser, or (y) by
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such assignee, if any. Nothing in this Agreement shall confer any third party
beneficiary or other rights upon any person which is not a party or a successor
or permitted assignee of a Party to this Agreement.
11.4 GOVERNING LAW; LANGUAGE. This Agreement shall be governed by, construed and
enforced 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.
11.5 INTEGRATION. This Agreement, together with the Enclosures hereto, the
Sellers' Disclosure Schedule, the documents and agreements delivered or to be
delivered in connection herewith, constitutes the entire agreement of the
Parties with respect to the subject matter hereof and supersedes all prior
agreements and understandings, both written and oral, of the Parties with
respect to the subject matter hereof.
11.6 FURTHER ASSURANCES. Each Party to this Agreement covenants and agrees that,
from time to time both prior to and subsequent to the Closing Date, it will, at
the request and expense of the requesting party, execute and deliver all such
documents, including, without limitation, all such additional certifications,
conveyances, transfers, consents and other assurances and do all such other acts
and things as any other party hereto, acting reasonably, may from time to time
request to be executed or done in order to better evidence 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.
11.7 COMMON REPRESENTATIVE OF THE SELLERS. The Sellers hereby appoint Mr.
Xxxxxxxxx Xxxxxxxxx domiciled in Xxx Xxxxx 0000, Xxxxxx, Xxxxx, as their common
representative (the "Common Representative"), unless and until a new Common
Representative shall be appointed by the Sellers with two weeks prior written
notice to Purchaser, in connection with: (a) any action that may be required
under this Agreement on the part of any of them or of all of them collectively,
including, but not limited to, any communication, notice, appointment and
exercise of any rights, so that each of the Sellers shall be prevented from
exercising any such activity or right directly and without the intervention of
Mr. Xxxxxxxxx Xxxxxxxxx; (b) any communication, notice, or advice directed to
one or more of the Sellers pursuant to this Agreement; and (c) the appointment
of the arbitrator to be nominated pursuant to Article 10 hereof.
11.8 AMENDMENTS AND WAIVERS. No amendment or waiver of any provision of this
Agreement shall be binding on any party unless consented to in writing by such
party.
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No waiver of any provision of this Agreement shall constitute a waiver of any
other provision, nor shall any waiver constitute a continuing waiver unless
otherwise expressly provided.
THE REMAINDER OF THIS PAGE IS BLANK
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IN WITNESS WHEREOF, the Parties have executed this Agreement or caused
this Agreement to be executed by officers duly authorized thereunto as of the
date first above written.
Date: July 18, 1997
By: /s/ Xxxx X. Xxxxx
------------------------------------
Xxxx X. Xxxxx, President and Chief Executive Officer
on behalf of AMCAST INDUSTRIAL CORPORATION
By: * Xxxxxxxxx Xxxxxxxxx
------------------------------------
Speedline International Holding B.V.
By: /s/ Xxxxxx Xxxxxxxxxxxx
------------------------------------
Gerance S.A.
By: ** Xxxxxx Xxxxxxxxx
------------------------------------
San Marco Finanziaria S.p.A.
* Xxxxxxx Xxxxxxxxx
------------------------------------
Mr. Xxxxxxx Xxxxxxxxx
/s/ Xxxxxxxxx Xxxxxxxxx
------------------------------------
Mr. Xxxxxxxxx Xxxxxxxxx
* Power of Attorney
* Xxxxxx Xxxxxxxxx
------------------------------------
Mr. Xxxxxx Xxxxxxxxx
** Power of Attorney
* Xxxxxx Xxxxxxxxx
------------------------------------
Mr. Xxxxxx Xxxxxxxxx
* Xxxxxxxxx Xxxxxxxxx
------------------------------------
Ms. Xxxxxxxxx Xxxxxxxxx
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LIST OF ENCLOSURES (EXHIBITS) TO SHARE PURCHASE AGREEMENT
---------------------------------------------------------
The following enclosures (exhibits) to the Share Purchase Agreement are filed
herewith, any other enclosures or exhibits the Commission requests will be filed
upon request.
Enclosure 1 Definitions
Enclosure 3 Representations and Warranties of Sellers
Enclosure 4 Representations and Warranties of Purchasers
Enclosure 5 Escrow Agreement
54
ENCLOSURE 1
DEFINITIONS
As used in this Agreement, the following terms shall have the
respective meanings set forth below (and grammatical variations of such terms
shall have corresponding meanings):
"ACCOUNTING PRINCIPLES": means the law concerning (consolidated)
financial statements, as interpreted and supplemented by the accounting
principles promulgated by the Italian Accounting Profession (Consiglio Nazionale
dei Dottori Commercialisti e dei Ragionieri) and in the absence thereof, by
those issued by the International Accounting Standard Committee (IASC).
"ADDITIONAL PURCHASE PRICE SHARES": as defined in Section 2.3(c)(i)
hereof.
"ADJUSTED PURCHASE PRICE": as defined in Section 2.4.2(b) hereof.
"AFFILIATE" OR "AFFILIATES": means any Person, as defined herewith,
which, directly or indirectly controls, is controlled by, or is under common
control with, such Person.
"AGREEMENT": means this purchase agreement and all enclosures and
instruments in amendment or confirmation of it; "hereof", "hereto", and
"hereunder" and similar expressions mean and refer to this Agreement and not to
any particular Article, Section, Subsection or other subdivision; "Article",
"Section", "Subsection" or other subdivision of this Agreement followed by a
number mean and refer to the specified Article, Section, Subsection or other
subdivision of this Agreement.
"AMCAST": as defined in page 1 hereof.
"ALUSTAMPI": as defined in Recital A hereof.
"ANNOUNCEMENT DATE": as defined in Section 2.3 c)(i) hereof.
"ANNOUNCEMENT DATE SHARE VALUE": as defined in Section 2.3 c)(i)
hereof.
"ANTITRUST AUTHORITY": means any Governmental Authority having power or
authority with respect to antitrust matters.
"APRIL RESTRUCTURING": means the transactions described in that certain
Heads of Agreement dated April 18, 1997 entered into among Speedline, Speedline
Holding, Hyspeed S.p.A., a company organized under the laws of Italy having its
registered offices at Xxx Xxxxxxx, 00, Xxxxx Xxxxx xx Xxxx (XX), Xxxxx, San
Marco Finanziaria and Gerance and the transactions related hereto.
"AUTHORIZATION" OR "AUTHORIZATIONS": means any governmental license,
permit,
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concession, application, filing, registration and other authorization
necessary for the Companies to carry on the Business as presently or previously
conducted or for the ownership or use of its property and assets.
"AUTOLAMBRO": as defined in Recital A hereof.
"BIG SIX": means the following internationally recognized accounting
firms: Xxxxxx Xxxxxxxx; Coopers & Xxxxxxx LLP; Xxxxx & Young LLP; Deloitte &
Touche LLP; KPMG Peat Marwick LLP; and Price Xxxxxxxxxx LLP.
"BOOKS AND RECORDS": means all technical, business and financial
records, (including those which are relevant from a tax viewpoint) financial
books and records of account, books, data, reports, files, drawings, plans,
briefs, customer and supplier lists, deeds, certificates, contracts, surveys, or
any other documentation and information in any form whatsoever (including
written, printed, electronic or computer printout form) relating to the
Companies.
"BRESCIA PLANT": as defined in Section 6.1(4) (y) hereof.
"BUILDINGS AND FIXTURES": means all plant, buildings, structures,
erections, improvements, appurtenances and fixtures (including fixed machinery
and fixed equipment) situated on the Owned Properties or the Leased Properties
or any of them as the context requires.
"BUSINESS": means, collectively, the businesses presently and
heretofore carried on by the Companies and in particular the business described
in Recital B hereof.
"BUSINESS DAY": means any day other than Saturday, Sunday, legal
holiday or a day on which banking institutions in Milan and Rome, Italy, are
authorized to be closed.
"CAP PRICE": as defined in Section 9.8 (b) hereof.
"CLAIM OF INDEMNITY": as defined in Section 9.4 hereof.
"CLOSING": as defined in Section 2.2 hereof.
"CLOSING CERTIFICATE": means the certificate to be delivered at Closing
in the form indicated under Enclosure 13 in connection with the transfer of the
Participation hereunder.
"CLOSING DATE": as defined in Section 2.2 hereof.
"CLOSING DATE ALLOWANCE": as defined in Section 3.29 of Enclosure 3
attached hereto.
"CLOSING DATE EXCHANGE RATE": as defined in Section 2.3(f) hereof.
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56
"CLOSING INDEBTEDNESS": means the average daily Indebtedness of the
Companies to banks and other lenders calculated based on the thirty (30)
calendar days prior to the Closing Date.
"CLOSING INVENTORY": as defined in section 3.28 of Enclosure 3 attached
hereto.
"CLOSING NET WORTH": means the excess of assets over liabilities of the
Core Companies in Italian Lire reflected in the Closing Statement as of the
Closing Date determined in accordance with Section 2.4.2 hereof and with the
Accounting Principles.
"CLOSING STATEMENT": means (1) a statement of the aggregated
balance-sheet of the Core Companies representing the financial situation of the
Core Companies, including the Closing Net Worth, together with (2) the Closing
Indebtedness as of the Closing Date, prepared in accordance with Section 2.4.1
hereof, and with the Accounting Principles.
"COMMON REPRESENTATIVE": as defined in Section 11.7 hereof.
"COMMON SHARES": means the common shares, without par value, of Amcast.
"COMPANIES": as defined in Recital A hereof.
"CONSENT" OR "CONSENTS": means any consent required to be obtained from
a contracting party to the Material Contracts to the change in control of the
Companies contemplated by this Agreement.
"CONTINGENT PAYMENT": as defined in Section 2.3 e) hereof.
"CONTINGENT PAYMENT REDUCTION": as defined in Section 2.3(e)(i) hereof
"CORE COMPANIES": means Speedline, Speedline Aluminia, Speedline
Competition and Speedline Engineering.
"CORPORATE RECORDS": means the minute books and corporate records of
the Companies including, without limitation, the share certificate books,
register of shareholders, register of transfers and register of directors.
"CORPORATE SELLERS": means, collectively Speedline Holding, Gerance,
and San Marco Finanziaria.
"DEBT ADJUSTMENT": as defined in Section 2.4.2 hereof.
"DEFERRED PAYMENT": as defined in Section 2.3 d) hereof.
"DIRECT CLAIM": as defined in Section 9.4 hereof.
"E&Y FINANCIAL STATEMENTS": as defined in Section 8.2.1(b) hereof.
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57
"EMPLOYEE BENEFIT PLANS": as defined in Section 3.35(9) of Enclosure 3
attached hereto.
"ENCLOSURES": means the enclosures indicated in Section 1.8 hereof and
attached to this Agreement.
"ENVIRONMENTAL HOLDBACK AMOUNT": as defined in Section 2.3 f) hereof.
"ENVIRONMENTAL LAWS": as defined in Section 3.37 of Enclosure 3
attached hereto.
"ENVIRONMENTAL PERMITS": as defined in Section 3.37 of Enclosure 3
attached hereto.
"ENVIRONMENTAL PERMITTING AND REMEDIATION PLAN": as defined in Section
7.7 hereof.
"ESCROW AGREEMENT": as defined in Section 2.3(c)(i) hereof.
"ESCROW AGENT": means Star Bank, N.A., Cincinnati, Ohio, USA.
"EUROPE": means the territory of Europe, including, but not limited to,
the member states of the European Union, Albania, Bosnia-Herzegovnia, Bulgaria,
Croatia, Cyprus, The Czech Republic, Estonia, Hungary, Iceland, Latvia,
Lithuania, Malta, Montenegro, Norway, Poland, Romania, Slovakia, Slovenia,
Switzerland, Turkey, Ukraine and Yugoslavia.
"E&Y FINANCIAL STATEMENTS": as defined in Section 8.2.1 b) hereof.
"FINANCIAL STATEMENTS": means the 1996 Financial Statements and the
aggregated income statement of the Core Companies plus Alustampi and Autolambro
as of and for the five month period ended May 31, 1997, prepared in accordance
with the Accounting Principles on a combined and consolidated basis, as attached
hereto as Enclosure 9.
"FLT OPTION AGREEMENT": as defined in Section 6.15 hereof.
"GERANCE": as defined on page 1 hereof.
"GUARANTY AMOUNT I" as defined in Section 9.2 a) i) A) on page 1
hereof.
"GUARANTY AMOUNT II" as defined in Section 9.2 a) i) B) on page 1
hereof.
"GUARANTY AMOUNT III" as defined in Section 9.2 a) i) C) on page 1
hereof.
"GUARANTY AMOUNT IV" as defined in Section 9.2 a) i) D) on page 1
hereof.
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58
"GUARANTY AMOUNT V" as defined in Section 9.2 a) i) E) on page 1
hereof.
"GOVERNMENTAL AUTHORITY": means any domestic or foreign court or
governmental or quasi-governmental agency, commission, authority or
instrumentality.
"INDEBTEDNESS": means the categories of indebtedness of the Companies
identified in the extract of the unaudited balance sheet of the Companies
attached to this Enclosure 1 as Exhibit A. Anything to the contrary herein
notwithstanding, Indebtedness shall not include obligations of the Companies
under any leases or factoring arrangements.
"INDEMNIFIED PARTY" and "INDEMNIFYING PARTY": as defined in Section 9.4
hereof.
"INDIVIDUAL SHAREHOLDERS": as defined in page 2 hereof.
"INITIAL PURCHASE PRICE": as defined in Section 2.3 a) hereof.
"INITIAL PURCHASE PRICE FRACTIONS": as defined in Section 2.3 a)
hereof.
"INTELLECTUAL PROPERTY RIGHTS": as defined in Section 3.21 of Enclosure
3 attached hereto.
"INTERIM PERIOD": means the period between the date hereof and the
Closing Date.
"INVENTORY": means the inventory, including raw materials, work in
progress and finished goods, relating to the Business.
"ITALIAN ANTITRUST AUTHORITY" means the Autorita Garante della
Concorrenza e del Mercato having jurisdiction under Law no. 287 of October 10,
1990.
"JOINT STOCK COMPANIES": means Speedline, Speedcast, Speedline
Aluminia, Speedline Engineering and Speedline USA.
"KEY CUSTOMERS": as defined in Section 6.2(b) hereof.
"KEY MANAGERS": means the managers indicated under Enclosure 10 hereof.
"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.
"LEASED PROPERTIES": means, collectively, the real properties forming
the subject matter of the Real Property Leases, as described (municipal
addresses and legal descriptions) in Section 3.25 of Sellers' Disclosure
Schedule.
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"LIEN" OR "LIENS": means any security interest, mortgage, lien,
usufruct, charge, pledge, encumbrance, claim, defects of title or restriction of
any kind, including, without limitation, any restriction on the voting, transfer
or receipt of income or other attributes of ownership or rights of set-off, and
other encumbrances of any kind.
"LIMITED LIABILITY COMPANIES": means Speedline Competition, Autolambro,
Alustampi, Speedline France, and Speedline UK.
"LOANS": mean those agreements (written or oral) of the Companies for
the borrowing of funds or the granting of credit, as listed and described in
Section 3.32 of Sellers' Disclosure Schedule.
"LOSS" OR "LOSSES": means any actual loss whatsoever, including,
without limitation, all claims, liabilities, obligations, actions, expenses,
costs, damages, penalties, fines and interest charges.
"MATERIAL CONTRACTS": means those contracts and agreements of the
Companies listed and described in Section 3.16 of Sellers' Disclosure Schedule
having the characteristics described under Section 3.16 of Enclosure 3.
"NET WORTH ADJUSTMENT": as defined in Section 2.4.2 hereof.
"NINE MONTH ANNIVERSARY": as defined in Section 2.3 c) hereof.
"NORTH AMERICA": means Canada, Mexico and the United States and all
states and possessions thereof.
"NYSE": as defined in Section 2.3 c)(i) hereof.
"1996 FINANCIAL STATEMENTS": means the aggregated balance sheet as of
December 31, 1996 and the aggregated income statement for the twelve month
period ended December 31, 1996 for the Core Companies (comprising a part of
Enclosure 9).
"1996 NET WORTH": means the excess of assets over liabilities of the
Core Companies, as such assets and liabilities are reflected in the 1996
Financial Statements, in the amount of ITL 48,010,000,000.
"1997 OPERATING BUDGET": as defined in Section 3.33 of Enclosure 3
attached hereto, and comprising Enclosure 12.
"1997 FINANCIAL STATEMENTS": as defined in Section 2.3 e) hereof.
"1997 PROFIT": as defined in Section 2.3 e) hereof.
"1997 PROFIT BUDGET": as defined in Section 2.3 e) hereof.
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"1998 FINANCIAL STATEMENTS": as defined in Section 2.3 e)(ii) hereof.
"1998 PROFIT": as defined in Section 2.3 e)(ii) hereof.
"OWNED PROPERTIES": means, collectively, the real property owned by the
Companies, which is described (municipal addresses and legal descriptions) in
Section 3.24 of the Sellers' Disclosure Schedule.
"PARTICIPATION" means collectively any and all Shares and Quotas.
"PARTIES": means, collectively, each of the Sellers and the Purchaser,
and "Party" means any of them.
"PERSON": means any natural person, firm, partnership, association,
corporation, trust, public body or government.
"POLLUTING SUBSTANCES": as defined in Section 3.37 of Enclosure 3
attached hereto.
"PROPRIETARY INFORMATION": means the know-how and trade secrets owned,
licensed, or utilized by the Companies.
"PROTECTED SHARES": as defined in Section 2.3 c)(ii) hereof.
"PUBLIC ANNOUNCEMENT": shall mean any press release or other public
announcement pursuant to Section 6.12 hereof.
"PURCHASE PRICE": as defined in Section 2.3 hereof.
"PURCHASER": as defined in page 1 hereof.
"PURCHASER'S LOSSES": as defined in section 9.2 a) hereof.
"QUOTAS" means any and all quotas representing the entire capital of
the Limited Liability Companies.
"RELATED PARTY AGREEMENTS": as defined in Section 6.11 hereof.
"REAL PROPERTY LEASES": means the leases and subleases of real property
to which the Companies are parties, as described in Section 3.25 of Sellers'
Disclosure Schedule.
"REFERENCE INDEBTEDNESS": means Indebtedness of the Companies equal to
ONE HUNDRED SEVEN BILLION THREE HUNDRED TEN MILLION ITALIAN LIRE (ITL
107,310,000,000).
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"REFERENCE RATE": means the rate of interest that is 100 basis points
below the rate of interest payable on nine month United States Treasury
obligations from time to time.
"RELATED PARTY AGREEMENT": as defined in Section 6.11 hereof.
"SAN MARCO FINANZIARIA": as defined in page 1 hereof.
"SECOND ANNIVERSARY": as defined in Section 2.3 c)(ii) hereof.
"SECOND ANNIVERSARY STOCK VALUE": as defined in Section 2.3 c) (ii) (a)
hereof.
"SECURITIES LAWS": as defined in Section 4.5 of Enclosure 4 attached
hereto.
"SELLERS": as defined in page 2 hereof.
"SELLERS' ACCOUNTANTS": as defined in Section 2.4.3 (b) (i) hereof.
"SELLERS' COUNSEL": means Camilotti - Xxxxxx - Polettini, Xxxxxxxx
Xxxxxxxx, 0, Xxxxxx, Xxxxx appointed by the Sellers in order to render the legal
opinion mentioned in Section 8.2.4 hereof.
"SELLERS' DISCLOSURE SCHEDULE": means the disclosure schedule delivered
by the Sellers to the Purchaser pursuant hereto. Section numbers in the Sellers'
Disclosure Schedule refer to the corresponding section numbers in this
Agreement.
"SELLERS' SHAREHOLDERS": means any firm, corporation and/or individual
holding a participation directly or indirectly in the Corporate Sellers.
"SHARES": means any and all shares representing the capital stock of
the Joint Stock Companies.
"SPEEDCAST": as defined in Recital A hereof.
"SPEEDLINE": as defined in Recital (A) hereof.
"SPEEDLINE ALUMINIA": as defined in Recital A hereof.
"SPEEDLINE COMPETITION": as defined in Recital A hereof.
"SPEEDLINE ENGINEERING": as defined in Recital A hereof.
"SPEEDLINE FRANCE": as defined in Recital A hereof.
"SPEEDLINE SHARES": as defined in Section 2.1 hereof.
"SPEEDLINE UK": as defined in Recital A hereof.
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"SPEEDLINE USA": as defined in Recital A hereof.
"TAX AMNESTIES": as defined in Section 9.2 e).
"TAX" OR "TAXES": means all national, local or foreign taxes, social
security contributions, fees, imposts, levies or other assessments, including,
without limitation, all net income, gross receipts, sales, ad valorem, value
added, transfer, recording, franchise, profits, inventory, capital stock,
license, withholding, payroll, stamp, occupation and property taxes, customs
duties or other similar fees, assessments and charges however denominated,
together with all interest, penalties, additions to tax or additional amounts
imposed by any taxing authority (Italian or foreign), and any transferee
liability in respect of any of the foregoing taxes.
"THIRD ACCOUNTING FIRM" as defined in Section 2.4.3 b)(iii) hereof.
"THIRD PARTY CLAIM": as defined in Section 9.4 hereof.
"TRADING DAY": means any day other than a Saturday, Sunday, legal
holiday or other day on which the NYSE or banking institutions in New York, New
York, USA are authorized to be closed.
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ENCLOSURE 3
REPRESENTATIONS AND WARRANTIES OF SELLERS
-----------------------------------------
The Sellers make the following representations and warranties and
acknowledge that the Purchaser is relying upon such representations and
warranties in connection with the purchase by it of the Speedline Shares and
thereby the Participation. The above notwithstanding, the Parties hereby agree
that in no event shall the Sellers be responsible for inaccuracies or omissions
that are capable of being completed satisfactorily, or integrated by any
information, data and/or statement contained in any representation or warranty
made in this Enclosure 3 and/or the Sellers' Disclosure Schedule and any
Prospectus attached thereto.
A) MATTERS RELATING TO THE SELLERS
3.1.a DUE INCORPORATION AND LEGAL POWER OF THE CORPORATE SELLERS. Each
of the Corporate Sellers is a corporation duly constituted, validly existing and
in good standing under the laws of Italy with regard to San Marco Finanziaria,
the laws of The Netherlands with regard to Speedline Holding, and the laws of
Switzerland with regard to Gerance and have full power and authority to own
their property, to carry on business as heretofore conducted, to execute and
deliver this Agreement, to perform their obligations hereunder and to consummate
the transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have been
duly authorized and approved by all requisite actions necessary on the part of
each of the Corporate Sellers and do not (or would not with the giving of
notice, the lapse of time or the happening of any other event or condition)
result in a violation or a breach of, or a default under, or give rise to a
right of termination, amendment, or cancellation, or the acceleration of any
obligation under (i) any charter or by-law instruments of each of the Corporate
Sellers, (ii) any contract or instrument to which any of the Corporate Sellers
is a party or by which any of the Corporate Sellers is bound, except as
disclosed under Section 3.1 (a) of the Sellers' Disclosure Schedule, or (iii)
any Laws applicable to each of the Corporate Sellers. This Agreement constitutes
a valid and legally binding obligation of each of the Corporate Sellers,
enforceable against each of the Corporate Sellers in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
reorganization, moratorium, insolvency or similar laws affecting creditors
rights generally and by general principles of equity.
3.1.b LEGAL POWER OF INDIVIDUAL SHAREHOLDERS. Subject to the matters
disclosed under Section 3.1 (b) of the Sellers' Disclosure Schedule, Mr. Xxxxxxx
Xxxxxxxxx, Mr. Xxxxxxxxx Xxxxxxxxx, Mr. Xxxxxx Xxxxxxxxx, Mr. Xxxxxx Xxxxxxxxx
and Ms. Xxxxxxxxx Xxxxxxxxx have each the legal power to own the respective
Speedline Shares owned by each of them and to enter into this Agreement and any
other document indicated herein and to consummate the transactions contemplated
hereby. None of the spouses of the Individual Shareholders has any legal or
beneficial interest in the Speedline Shares and
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the consents of the Individual Shareholders' spouses are not required to
transfer good and marketable title in the Speedline Shares to the Purchaser free
and clear of any and all Liens.
B) MATTERS RELATING TO THE COMPANIES.
3.2 DUE INCORPORATION OF THE COMPANIES. Each of the Companies is a
corporation duly incorporated, validly existing and in good standing under the
relevant laws of incorporation and has full corporate power and authority to own
its property and to carry on its business as now conducted. Each of the
Companies is duly qualified to do business in all jurisdictions in which the
nature of its assets or its business makes such qualification necessary.
Sections 3.2 and 3.10 (b) of Sellers' Disclosure Schedule and related Prospectus
indicates a true and complete list of all the permanent establishments and/or
representative offices of the Companies including all locations where any of the
Companies maintain an office, plant, warehouse, assets, equipment, employees or
any other indications related to existence of such permanent establishments or
representative offices. Correct and complete copies of the deed of incorporation
and of the current by-laws of the Companies or similar documents have been
previously provided to the Purchaser.
3.3 AUTHORIZED CAPITAL (AS TO EACH OF THE COMPANIES). The authorized
and issued and paid in capital stock and relevant ownership of each of the
Companies is laid out in Prospectus 3.3(a) attached to the Sellers' Disclosure
Schedule.
All issued and outstanding shares have been duly authorized and validly issued
and are fully paid and are owned as indicated in the Prospectus 3.3 (a) of the
Sellers' Disclosure Schedule and are represented by the share certificates
listed in Section 3.3 (B) of Sellers' Disclosure Schedule. Any and all the
Quotas have been duly and validly registered in the relevant quotaholders books
and fully paid and owned as indicated in the Prospectus 3.3(a) of the Sellers'
Disclosure Schedule.
3.4 NO OPTIONS, ETC. As of the Closing Date, no Person will have any
option, warrant, right, call, commitment, conversion right, right of exchange or
other agreement (written or oral) or any right or privilege (whether by law,
preemptive or contractual) capable of becoming an option, warrant, right, call,
commitment, conversion right, right of exchange or other agreement (i) for the
purchase from any of the Sellers of the Speedline Shares; (ii) for the purchase,
subscription or issuance of any unissued shares and/or quotas in the capital of
the Companies or of any securities of the Companies; for the acquisition, by
purchase of all or substantially all of the assets, merger consolidation or
otherwise, of any of the Companies; or (iv) for the voting of any Shares and/or
Quotas. There are no shareholders' agreements entered into between or among any
of the Companies' shareholders or otherwise affecting the Companies. It must
however be noted that a resolution was passed on April 28th, 1997 by the
Shareholders' Meeting of Speedcast for the increase of Speedcast's authorized
and issued capital respectively to HFL 35,000,000 and HFL 30,114,600. Speedline
has obtained all necessary waivers or rights of first refusal
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required to complete the sale of the minority participation to Speedline Holding
during the April Restructuring.
3.5 TITLE TO SPEEDLINE SHARES, SHARES AND QUOTAS. (1) The Speedline
Shares, are owned by each of the Sellers, in the amount indicated under Section
3.3 (a) of the Sellers' Disclosure Schedule, as the registered owner thereof
with a good and valid title thereto. The Speedline Shares are held free and
clear of all Liens, including, without limitation, any voting trust, shareholder
agreement or voting agreement. Upon completion of the formalities related to the
transfer of the Speedline Shares owned by each of the Sellers (a) the Purchaser
will obtain good, exclusive and valid title to the Speedline Shares and thereby
to the Participation, free and clear of all Liens, options, charges and
encumbrances of any kind, and (b) (i) Speedline shall have good, exclusive and
valid title to 100% of the issued and outstanding shares of Speedcast, Speedline
USA, and 100% of the quotas of Alustampi, (ii) Speedcast shall have good,
exclusive and valid title to 100% of the issued and outstanding shares and/or
quotas of Speedline Aluminia, Speedline Competition, Speedline Engineering,
Speedline France, Speedline and UK, and (iii) Speedline Aluminia shall have
good, exclusive and valid title to 100% of the quotas of Autolambro, in all such
instances free and clear of all Liens, options, charges and encumbrances of any
kind on such shares and quotas
(2) No participation or interest owned by any of the Companies
in the capital of any companies ("associazioni, societa di capitali, societa di
persone, etc") in Italy or any entity of whatsoever nature abroad.
3.6 CORPORATE RECORDS. The Corporate Records of the Companies are
complete and accurate in all material respects and all corporate proceedings and
actions reflected therein have been conducted or taken in material compliance
with all applicable Laws and with the relevant documents of incorporation.
3.7 CONFLICTING AGREEMENTS, ETC. The execution and delivery of this
Agreement by the Sellers and the consummation of the transactions contemplated
hereby will not result in:
(a) the breach or violation of any of the provisions of, or a default
under, or a conflict with or cause the acceleration of any obligation of the
Companies under: (i) any Material Contract subject to what set forth in Section
3.7 of the Sellers' Disclosure Schedule; (ii) any Authorization; (iii) any
provision of the constituent documents, by-laws or resolutions of the Board of
Directors (or any committee thereof) or resolution of the shareholders or
quotaholders of the Companies; (iv) any judgment, injunction, decree, order or
award of any court, governmental body or arbitrator having jurisdiction over the
Companies, having a material effect on the transactions contemplated herein; (v)
any license, permit, approval, consent or authorization necessary to the
ownership of the Participation and the operation of the Business; or (vi) any
applicable Law; or
(b) the creation or imposition of any Lien on any of the Shares/Quotas
or
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on any of the property or assets of the Companies; or
(c) the discontinuance or impairment of the operation of the
Business after the date hereof or the Closing Date on substantially the same
basis as such Business has heretofore been operated.
3.8 CONSENTS AND APPROVALS. To the best of Sellers' knowledge, save for
the approval of the Italian Antitrust Authority, no other consent or approval,
or registration, declaration or filing with, any Governmental Authority is
required to be obtained or made on the part of the Sellers or the Companies in
connection with the execution and delivery of this Agreement by the Sellers or
the consummation of the transactions contemplated hereunder.
3.9 BANK ACCOUNTS AND POWERS OF ATTORNEY. Section 3.9 of Sellers'
Disclosure Schedule is a correct and complete list showing the name of each bank
in which the Companies have an account or safe deposit box and the names of all
persons authorized to draw thereon or to have access thereto.
C) GENERAL MATTERS RELATING TO THE BUSINESS
3.10 BUSINESS OF THE COMPANIES. The Business is the only business
operation carried on by the Companies, and, to the best of Sellers' knowledge,
and save for what set forth in Section 3.10 (a) of the Sellers' Disclosure
Schedule the property and assets now owned or leased by the Companies (and as
reflected in the Financial Statements) are sufficient to carry on the Business
as it is now conducted. With the exception of inventory in transit, and save for
the assets displaced at third parties facilities on a gratuitous loans scheme
according to the agreements listed in Section 3.10 (b) of the Sellers'
Disclosure Schedule all the tangible property and assets of the Companies, are
situated at the locations set out in Section 3.2 of Sellers' Disclosure
Schedule.
3.11 CONDUCT OF BUSINESS IN ORDINARY COURSE. Since December 31, 1996,
the Business has been conducted in the ordinary course consistent with past
practice and will continue to be conducted in the ordinary course consistent
with past practice up to the Closing Date.
3.12 NO MATERIAL ADVERSE CHANGE. Except for the provisions of Article 3
of Law no. 140/97, since December 31, 1996 there has been no change in the
affairs, assets, liabilities, business, operations, conditions (financial or
otherwise) or prospects of the Companies, or the Business, whether arising as a
result of any legislative or regulatory change, revocation of any Authorization,
license or right to do business, fire, explosion, accident, casualty, labor
trouble (specifically connected to the Companies) public force, any other act of
God or any other circumstance which has materially adversely affected or which
may reasonably be expected to materially adversely affect the Companies or the
Business.
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3.13 COMPLIANCE WITH LAWS. Subject to implementation of the
interventions provided for in the Environmental Permitting and Remediation Plan,
each of the Companies is conducting the Business in compliance with all
applicable Laws of each jurisdiction in which the Business is carried on.
Without limiting the foregoing, the Consortium Agreement among Speedline
Engineering and Alloy Wheels International (UK) Ltd., Wales, Hitachi Metals
Ltd., Japan, Montupet SA, France, Ormet Primary Aluminium Corporation, USA,
Volkswagen Canada Inc., Canada, Xxxxxx Ltd., Switzerland, dated March 8, 1995
does not violate provisions of competition laws of any applicable jurisdiction.
3.14 AUTHORIZATIONS. Each Company has obtained and is in possession of
all Authorizations except for those which will be obtained only upon
implementation of the Environmental Permitting and Remediation Plan, and those
the absence of which would not, individually or in the aggregate, reasonably be
expected to have a material adverse effect on the operation of the Business.
None of the Companies is in default, nor has it received any notice of any claim
in default, with respect to any such Authorizations. To the best of the Sellers'
knowledge, no threat of revocation exists and there is no reason to revoke any
of the Authorizations. All such Authorizations are, subject to completion of the
Environmental Permitting and Remediation Plan, renewable by their terms or in
the ordinary course of business without the need for the Companies to comply
with any special qualification or procedure or to pay any amount other than
routine filing fees.
3.15 OWNERSHIP OF OTHER INTERESTS. None of the Companies owns, or has
entered into any agreement of any nature to acquire, directly or indirectly,
shares in the capital of or other equity or proprietary interests in any Person,
or to acquire or lease any other business operations.
3.16 Material Contracts. The contracts listed and described in Section
3.16 of Sellers' Disclosure Schedule constitute (a) all the Companies'
contracts, agreements or commitments with any Affiliate or related party
thereof, and (b) all other contracts, agreements or commitments of the
Companies, except those contracts, agreements or commitments, that are (x)
entered into in the ordinary course of business, (y) do not have a contractual
value in excess of ITL 150,000,000 and (z) may be terminated, without penalty,
on notice of one year or less. To the best of sellers' knowledge, true, correct
and complete copies of all Material Contracts in writing have been previously
made available for review to the Purchaser.
3.17 NO BREACH OF CONTRACTS. Save for what set forth in the prospectus
3.16(a) attached to the Sellers Disclosure Schedule, each of the Material
Contracts is in full force and effect, unamended, and, at the date hereof, to
the best of Sellers' knowledge, there exists no default or event of default or
event, occurrence, condition or act which, with the giving of notice, the lapse
of time or the happening of any other event or condition, would become a default
or event of default thereunder, except for such defaults of a minor nature and
except for the necessity of obtaining the Consents. None of the Companies has
violated or breached, in any material respect, any of the terms or conditions of
any Material Contract, and all the covenants to be performed by any other party
thereto have been fully
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performed.
3.18 INSURANCE. Section 3.18 of Sellers' Disclosure Schedule contains a
correct and complete list of insurance policies which are maintained by the
Companies with respect to the Business, their respective property and assets or
employees with an indication of the type of policy, name of insurer, coverage
allowance, expiration dates, annual premiums and any pending claim thereunder.
None of the Companies is in default with respect to the payment of any premium
under any such insurance policy and has not failed to give any notice or to
present any claim under any such insurance policy in a due and timely fashion.
Such insurance policies are in full force and effect free from any right of
termination on the part of the insurers, except upon notice as stipulated in
such policies.
3.19 LITIGATION. Except as set forth in Section 3.19 of Sellers'
Disclosure Schedule, none of the Companies is a party to any pending litigation,
whether before the ordinary courts or before administrative or other courts or
arbitrators, and, to the best of Sellers' knowledge, no such litigation is
threatened by or against the Companies. Except as set forth in Section 3.19 of
Sellers' Disclosure Schedule, none of the Companies is presently subject to any
judgment, order or decree entered in any law suit or proceeding. It is
understood that litigation which, individually or in the aggregate, potentially
would expose the Companies to liability of less than ITL 100 million are not
subject to inclusion in this Section 3.19 and the related Section 3.19 of the
Sellers' Disclosure Schedule.
3.20 CUSTOMERS, SUPPLIERS. Section 3.20 of Sellers' Disclosure Schedule
is a true and correct list setting forth the largest customers and suppliers of
the Business updated as of December 31, 1996. Except as set forth in Section
3.20 of Sellers' Disclosure Schedule, none of the Sellers nor, to the best of
the Sellers' knowledge, any officer or director of the Companies possesses,
directly or indirectly, any financial interest in, or is a director, officer or
employee of, any Person which is a customer, supplier, lessor, lessee, or
competitor or potential competitor of the Companies. Except as set forth in
Section 3.20 of Sellers' Disclosure Schedule, the Sellers are not aware of any
written or oral communication, fact, event or action which exists or has
occurred within 6 months prior to the date of this Agreement, which would lead
the Sellers to believe that any current customer of the Companies or any
supplier to the Companies of items which are material to the Companies and
cannot be replaced at comparable cost, will terminate or adversely modify its
business relationship with the Companies.
3.21 INTELLECTUAL PROPERTY, PROPRIETARY INFORMATION. Section 3.21 of
Sellers' Disclosure Schedule is a true and correct list (including, where
applicable, registration numbers, dates of filing renewal and termination) of
all the material patents, patent applications, registered designs and models,
trademarks, trademark registrations and applications therefor, service marks,
service xxxx registrations and applications therefor, trade names (whether or
not registered or registrable), registered copyrights and registered copyright
applications, used or held for use by the Companies in the conduct of the
Business as currently, and as proposed to be conducted (hereinafter,
collectively, "Intellectual Property Rights"). The Companies are the true,
lawful and exclusive owners
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of all right, title and interest in and to the Intellectual Property Rights and
the Proprietary Information, free and clear of all Liens, including, without
limitation, claims of Employees or any third parties for compensation for use or
inventions of any Intellectual Property Rights utilized by the Companies and the
Intellectual Property Rights and Proprietary Information are valid and
subsisting. There is no intellectual property right of any third party which is,
utilized by the Companies. None of the Companies has conveyed, assigned,
licensed or encumbered any of the Intellectual Property Rights and Proprietary
Information. The Companies have the exclusive right to use such Intellectual
Property Rights and Proprietary Information. None of the Companies is a party to
any pending litigation, whether before the ordinary courts or before
administrative or other courts or arbitrators, and no such litigation is
threatened by or against the Companies with respect to Intellectual Property
Rights. To the best of the Sellers' knowledge, conduct of the Business of the
Companies does not infringe upon the intellectual property rights of any other
Person.
D) MATTERS RELATING TO PROPERTY AND ASSETS
3.22 TITLE TO THE PROPERTY AND ASSETS.
(1) Each of the Companies has good and marketable title to and
legal and beneficial ownership of all its respective property and assets, free
and clear of all Liens, except as otherwise indicated in Section 3.22 of
Sellers' Disclosure Schedule. All Liens granted by the Companies to secure fully
repaid loan agreements, overdraft, discount notes or other credit facilities
have been duly canceled. The Companies have obtained the consent from the
relevant bank institutions for the cancellation of the registered mortgages
pertaining to Loans and obligations fully reimbursed.
(2) The Companies own all of the assets and property reflected
in the Financial Statements, which constitute, save for the leased properties
and assets listed in Sections 3.25 and 3.27 of Sellers Disclosure Schedule as
well as the assets of third parties manufacturers entrusted by the Companies
with certain manufacturing process, all of the assets and property used in and
necessary for the operation of the Business by the Companies.
3.23 NO OPTIONS, ETC. No Person has any written or oral agreement,
option, understanding or commitment, or any right or privilege capable of
becoming such for the purchase from the Companies of any of their respective
property or assets.
3.24 REAL PROPERTY.
(1) Section 3.24 (1) (a) and (b) of the Sellers' Disclosure
Schedule lists all of the real property owned by the Companies, Except as set
forth in Section 3.24(1) of Sellers' Disclosure Schedule, each of the Companies
has good and marketable title to its interest in the Owned Properties, free and
clear of all Liens.
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(2) Except as set forth in Section 3.24(1)(b) of Sellers'
Disclosure Schedule, none of the Companies is the owner of, or under any
agreement or option to own, any real property or any interest therein, other
than the Owned Properties.
(3) All of the Buildings and Fixtures on the Owned Properties
were built in accordance with all applicable laws and with all required
authorizations validly issued pursuant thereto. All of the Buildings and
Fixtures on the Owned Properties and the Leased Properties: (i) to the best of
Sellers' knowledge, are in good operating condition and in a state of good
maintenance and repair, except for normal wear and tear; and (ii) are adequate
and suitable for the purposes for which they are presently being used; and (iii)
with respect to each of them the Companies have adequate rights of ingress and
egress for the operation of their business in the ordinary course. None of the
Owned Properties or the Buildings and Fixtures thereon, nor the use, operation
or maintenance thereof for the purpose of carrying on the Business, violates any
restrictive covenant or any provision of any Law or encroaches on any property
owned by any other Person and the same is the case regarding the Leased
Properties. No condemnation or expropriation proceeding is pending or, to the
best of Sellers' knowledge, threatened with respect to the Owned Properties nor
pending or threatened with respect to the Leased Properties which would preclude
or impair the use of any such real property or any part thereof for the purposes
for which it is currently used.
(4) There are no outstanding work orders with respect to any
of the Owned Properties, the Leased Properties or the Buildings or Fixtures
thereon, from or required by any municipality, police department, fire
department, sanitation, health or safety authorities or from any other Person
and/or Governmental Authorities and there are no matters under discussion with
or by the Companies relating to work orders, to the extent any such work orders
or matters would have a material adverse effect on
the Companies or the Business.
(5) Section 3.24(5) of Sellers' Disclosure Schedule contains a
true, complete, and correct list of the building amnesties duly filed by the
Companies, in compliance with the relevant Laws, with respect to Buildings,
Fixtures and Owned Properties. All the amounts due in connection with such
amnesties indicated under this subsection (5) have been fully paid and no
further obligations are pending towards the relevant Governmental Authority and
no claims have been filed or are expected to be filed by such Governmental
Authority.
3.25 REAL PROPERTY LEASES. Section 3.25 of Sellers' Disclosure Schedule
lists all of the Real Property Leases, the term of each Real Property Lease, the
rental payments thereunder, any rights of renewal and the term thereof and any
restrictions on assignment concerning the Companies. None of the Companies is a
party to, or under any agreement or option to become a party to, any lease with
respect to real property used or to be used in the Business, other than the Real
Property Leases. Each Real Property Lease is in good standing, creates a good
and valid leasehold estate in the Leased Property thereby demised and is in full
force and effect without amendment thereto, except as otherwise
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disclosed in Section 3.25 of the Sellers' Disclosure Schedule. With respect to
each Real Property Lease (i) all rents and additional rents due thereunder have
been paid; (ii) neither the lessor nor the lessee is in material default
thereunder; (iii) no waiver, indulgence or postponement of the lessee's
obligations thereunder has been granted by the lessor; (iv) there exists no
event of default or event, occurrence, condition or act (including, without
limitation, the purchase of the Participation) which, with the giving of notice,
the lapse of time or the happening of any other event or condition, would become
a default under any such Real Property Leases; (v) none of the Companies has
violated any of the terms or conditions under any such Real Property Leases in
any material respect; (vi) all of the covenants to be performed by any other
party under any such Real Property Leases have been fully performed; and (vii)
except as disclosed in Section 3.25 of the Sellers' Disclosure Schedule, none of
the Sellers or any of their Affiliates has any direct or indirect ownership or
other interest in the Leased Properties or the Real Property Leases.
3.26 CONDITION OF ASSETS - GENERAL. To the best of Sellers' knowledge,
all of the property and assets owned or used by each of the Companies are in
good operating condition and are in a state of good repair and maintenance,
having regard to the age and use thereof, reasonable wear and tear excepted.
During the two years preceding the date of this Agreement, there has not been
any significant interruption of operations (being an interruption of more than
seven days) of the Business due to inadequate maintenance of any of the property
and assets owned and used by each of the Companies.
3.27 LEASED PERSONAL PROPERTY. None of the Companies leases any
material non-real property in the conduct of the Business, other than as set
forth in Section 3.27 of Sellers' Disclosure Schedule. None of the Sellers or
any of their Affiliates has any ownership or other interest in equipment or
other non-real property leased by the Companies or the corresponding lease
agreements.
3.28 INVENTORY. At the Closing Date, the Inventory (hereinafter, the
"Closing Inventory") will be: (i) usable, merchantable, and saleable in the
normal course, (ii) in conformity with warranties customarily given to
purchasers of like products and (iii) at levels adequate in relation to the
circumstances of the Business and in accordance with inventory stocking
practices as of December 31, 1996.
3.29 ACCOUNTS RECEIVABLES. Except as set forth in Section 3.29 of
Sellers' Disclosure Schedule, all accounts receivable as shown on the Financial
Statements and arising thereafter are bona fide and, subject to the allowance
for doubtful accounts, as shown on the Financial Statements, and carried on
thereafter until the Closing Date at comparable levels (hereinafter, the
"Closing Date Allowance"), collectible without set off or counterclaim in the
ordinary course of business.
E) FINANCIAL MATTERS
3.30 BOOKS AND RECORDS. All Books and Records have been fully, properly
and accurately kept and completed in accordance with the applicable rules of the
Italian civil
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code or other applicable foreign legislation and there are no material
inaccuracies or discrepancies of any kind contained or reflected therein. All of
the records, controls, data or information of the Companies are under the
exclusive ownership and the direct control of the Companies.
3.31 FINANCIAL STATEMENTS. The Financial Statements (as defined in the
Agreement) have been prepared in accordance with the Accounting Principles
applied except as disclosed in Section 3.31 of the Sellers' Disclosure Schedule
on a basis consistent with those of previous fiscal periods and present fairly,
respectively: (a) the property, assets, liabilities (whether accrued, absolute,
contingent or otherwise) and the financial condition of the Core Companies, as
of December 31, 1996; (b) the financial position of the Core Companies, as of
December 31, 1996; and (c) the sales, gross profit operating profit and earnings
before taxes and net income for the period ended December 31, 1996 of the Core
Companies and sales, gross profit, operating profit, and earnings before taxes
for the 5 months period ended May 31, 1997 of the Core Companies plus Alustampi
and Autolambro, during the periods covered by the said Financial Statements.
There are no other liabilities except for those reflected in the Financial
Statements.
3.32 LOANS. Section 3.32 of Sellers' Disclosure Schedule lists and
describes all loan agreements, overdrafts, discounted notes and similar credit
facilities, to which each of the Companies is a party. All such loan agreements
and credit facilities are in full force and effect and there has been, on the
part of the Companies, no material default or breach of the Companies'
obligations thereunder, or delay of payments of principal or interest in respect
thereof.
3.33 CAPITAL EXPENDITURES. Except as disclosed in Section 3.33 of
Sellers' Disclosure Schedule, no capital expenditures in excess of any items
included in the capital budget of the Companies for 1997 have been made or
authorized by the Companies since December 31, 1996. A copy of the capital
budget and of the operating budget of the Companies for 1997 (hereinafter, the
"1997 Operating Budget") is attached as Enclosure 12.
3.34 TAXES. Each of the Companies has filed or caused to be filed,
within the times and within the manner prescribed by Law, all tax returns, tax
reports and social security returns which are required to be filed by each of
them. Such returns and reports reflect accurately all liabilities for Taxes of
each of the Companies for the periods covered thereby. Except as disclosed in
Section 3.34 of the Sellers' Disclosure Schedule all Taxes (including interest
and penalties) payable by or due from each of the Companies (as a result of a
fiscal assessment or otherwise), have been fully paid or adequately disclosed
and fully provided for in the Books and Records and the Financial Statements.
Each of the Companies has duly applied for the tax and social security amnesties
deemed necessary and has effected payment of or made adequate provision in the
Financial Statements for the entire amounts due for such amnesties. Except as
disclosed in Section 3.34 of the Sellers' Disclosure Schedule, no amount is
still due or will be due in consequence of the filing for the said amnesties in
order for the Companies to keep the right to the benefits
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provided for by the above-mentioned amnesties.
F) EMPLOYEE MATTERS AND AGENCY
3.35 EMPLOYEES. (1) Section 3.35(1) of Sellers' Disclosure Schedule
sets forth a complete list of each of the Companies' employees, their position
and length of service with the Companies, their salary, bonuses and any other
employee benefits other than those provided by law, and whether any written
employment agreements exist relating to any such employees.
(2) Each of the Companies is in material compliance with all
Laws and applicable labor collective agreements respecting employment and
employment practices, terms and conditions of employment, pay equity, wages and
hours, and laws and regulations concerning health and safety in the workplace.
(3) There is no labor strike, dispute, slowdown or stoppage
actually pending or involving or, to the best of Sellers' knowledge, threatened
against the Companies with respect to the Business or any part thereof.
(4) No employment related complaint or grievance exists which
might reasonably be expected to have a material adverse effect upon the
Companies or the conduct of the Business or any part thereof.
(5) Except as disclosed in Section 3.35(5) of Sellers'
Disclosure Schedule, none of the Companies is bound by any collective bargaining
or similar agreement nor are any such agreements currently being negotiated.
(6) No employee of the Companies has any agreement as to
length of notice required to terminate his employment, other than such as may be
required by Law from the employment of an employee without agreement as to such
notice or as to length of employment.
(7) All vacation pay (including all banked vacation pay),
bonuses, commissions and other employee benefit payments are to the extent
required by law and applicable labor collecting agreements reflected and have
been accrued in the Books and Records.
(8) No payments of salary, pension, bonuses or other
remuneration of any nature have been made or authorized since December 31, 1996
to any officers, directors, former directors, shareholders or employees of the
Companies, or to any Person not dealing at arm's length with any of the
foregoing, except in the ordinary course of business and at regular rates.
(9) There exist no employee benefit plans or other foreign
pension, welfare or retirement benefit plans of the Companies.
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(10) Section 3.35(10) of Sellers' Disclosure Schedule provides
for the complete list of all agents who/which render their services in favor of
any of the Companies (the "Agents"). All of the agency agreements pertaining to
the Agents are in full force and effect. Each of the Companies has duly paid all
the contributions due to the relevant agencies as well as any other amount due
to the Agents. The Sellers acknowledge that each of the Companies, where
necessary, has duly accrued or paid as termination indemnities to the former
agents and/or to the Agents only the ENASARCO and F.I.R.R. required by the
applicable collective bargaining agreements for national agents and such
accruals are duly reflected in the Financial Statements. None of the Companies
is a party to any agency agreement except as indicated under Section 3.35 (10)
of Sellers' Disclosure Schedule.
(11) Any and all consulting agreements entered into between
the Companies and any of its consultants, advisors, accountants, etc. comply
with all Laws.
3.36 NO BROKERS. All negotiations relating to this Agreement and the
transactions contemplated hereby have been carried on without the intervention
of any person acting on behalf of the Sellers in such manner as to give rise to
any valid claim against the Purchaser for any brokerage or finder's commission,
fee or similar compensation, and the Sellers shall so indemnify the Purchaser.
G) ENVIRONMENTAL MATTERS
3.37 ENVIRONMENTAL MATTERS. To the best of Sellers' knowledge, (1)
except as described in Section 3.37(1) of Sellers' Disclosure Schedule, each of
the Companies has been and is in material compliance with all applicable
national, regional, municipal, local and other applicable laws, statutes,
ordinances and regulations and orders, directives and decisions rendered by any
ministry, department or administrative or regulatory agency (hereinafter, the
"Environmental Laws") relating to the protection of the environment, the
manufacture, processing, distribution, use, treatment, storage, disposal,
discharge, transport or handling of any pollutants, contaminants, chemicals or
industrial, toxic or hazardous wastes or substances (hereinafter, the "Polluting
Substances").
(2) Except as disclosed under Section 3.37(2) of Sellers
Disclosure Schedule, each of the Companies has obtained all Authorizations,
certificates and registrations under Environmental Laws (hereinafter, the
"Environmental Permits") required for the operation of the Business and each
part thereof. Save for what set forth above, each Environmental Permit is valid,
subsisting and in good standing; none of the Companies is in default or breach
of any Environmental Permit and no proceeding is pending or threatened, to
revoke or limit any Environmental Permit.
(3) None of the Companies has used or permitted to be used,
except in compliance with all Environmental Laws, any of its respective property
(including the Leased Properties) or facilities or any property or facility that
it previously owned or leased, to generate, manufacture, process, distribute,
use, treat, store, dispose of, transport or
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handle any Polluting Substance.
(4) None of the Companies has received any notice of, nor been
prosecuted for an offense alleging non-compliance with any Environmental Laws,
and the Sellers and the Companies have not settled any allegation of
non-compliance short of prosecution. There are no orders or directions relating
to environmental matters requiring any work, repairs, construction or capital
expenditures with respect to the Business or any part thereof or any property of
the Companies, nor have the Companies received notice of any of the same.
(5) To the best of Sellers' knowledge, none of the Companies
has caused or permitted, the release, in any manner whatsoever, of any Polluting
Substance on or from any of the properties of the Companies (including any of
the Leased Properties) or assets or any property or facility that were
previously owned or leased by the Companies or any such release on or from a
facility owned or operated by third parties but, with respect to which, the
Companies is or may reasonably be alleged to have liability regardless of any
violation of Environmental Laws. All Polluting Substances and all other wastes
and other materials and substances used in whole or in part by the Companies or
resulting from the Business have been disposed of, treated and stored in
compliance with all Environmental Laws.
(6) None of the Companies has received any notice that it is
potentially responsible for state, municipal or local clean-up site or
corrective action under any Environmental Laws.
(7) There are no environmental audits, evaluations,
assessments or studies relating to the Companies or the Business (or any part
thereof) in the possession of the Companies or the Sellers which have not been
delivered to the Purchaser.
H) MISCELLANEOUS MATTERS
3.38 FULL DISCLOSURE. All the financial and business and other
information, provided by the Sellers to the Purchaser also with respect to the
period following the end of the last fiscal year are accurate, complete and
correct. Neither this Agreement nor any document to be delivered pursuant to
this Agreement by the Sellers nor any certificate, report, statement or other
document furnished by the Sellers or the Companies in connection with the
negotiation of this Agreement contains or will contain any untrue statement of a
material fact or omits or will omit to state a material fact necessary to make
the statements contained herein or therein not misleading. There has been no
event, transaction or information that has come to the attention of the Sellers
or the Companies that has not been disclosed to the Purchaser in writing that
could reasonably be expected to have a material adverse effect on the assets,
business, earnings, properties or conditions (financial or otherwise) of the
Companies.
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ENCLOSURE 4
REPRESENTATIONS AND WARRANTIES OF PURCHASER
-------------------------------------------
Purchaser makes the following representations and warranties
and acknowledges that the Sellers are relying upon such representations and
warranties in connection with the sale by them of the Speedline Shares.
4.1 ORGANIZATION, GOOD STANDING, AUTHORITY AND ENFORCEABILITY. Purchaser is a
corporation duly organized, validly existing and in good standing under the laws
of its state of incorporation. Purchaser has full corporate authority and power
to carry on its business as it is now conducted, and to own, lease and operate
the assets owned, leased or operated by it. Purchaser has all requisite
corporate power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby, subject to the approval of the Board of
Directors of Purchaser. Such approval will not be obtained prior to the signing
of this Agreement; Purchaser shall promptly advise Seller in writing when such
approval have been obtained. This Agreement and each other agreement herein
contemplated to be executed in connection herewith by Purchaser have been (or
upon execution will have been) duly executed and delivered by Purchaser and
constitute (or upon execution will constitute) legal, valid and binding
obligations of Purchaser enforceable against Purchaser (subject to approval of
the Board of Directors of Purchaser as provided above), in accordance with their
respective terms.
4.2 AGREEMENT NOT IN BREACH OF OTHER INSTRUMENTS. The execution and delivery of
this Agreement, the consummation of the transactions contemplated hereby and the
fulfillment of the terms hereof will not violate or result in a breach of any of
the terms or provisions of, or constitute a default (or any event which, with
notice or the passage of time, or both, would constitute a default) under, or
conflict with or result in the termination of, or accelerate the performance
required by, (i) any agreement, indenture or other instrument to which Purchaser
is a party or by which it is bound, (ii) the Articles of Incorporation or Code
of Regulations of Purchaser, (iii) any judgment, decree, order or award of any
court, governmental body or arbitrator by which Purchaser is bound, or (iv) any
law, rule or regulation applicable to Purchaser.
4.3 COMPLIANCE WITH LAWS. All consents, approvals and authorizations and all
other requirements prescribed by any law, rule or regulation which must be
obtained or satisfied by Purchaser and which are necessary for the execution and
delivery by Purchaser of this Agreement and the documents to be executed and
delivered by Purchaser in connection herewith and in order to permit the
consummation of the transactions contemplated by this Agreement have been
obtained and satisfied or shall be obtained and satisfied prior to the Closing.
4.4 NO LEGAL BAR. Purchaser is not prohibited by any order, writ, injunction or
decree of any body of competent jurisdiction from consummating the transactions
contemplated by this Agreement and all other agreements referenced herein, and
no such action or proceeding is pending against Purchaser that questions the
validity of this Agreement or any such other agreements, any of the transactions
contemplated hereby or thereby or any action which has been taken by any of the
parties in connection herewith or therewith or
77
in connection with any of the transactions contemplated hereby or thereby.
4.5 ADDITIONAL PURCHASE PRICE STOCK. The Additional Purchase Price Stock, upon
delivery thereof to the Sellers pursuant to the Escrow Agreement, (i) shall be
validly issued, fully paid and non-assessable, and (ii) effectively listed for
sale on the New York Stock Exchange, Inc., and (iii) freely tradeable pursuant
to (a) available exemptions under the securities laws of the United States,
including, without limitation, the Securities Act of 1993, as amended, the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder, as amended (collectively, the "Securities Laws"), or (b)
pursuant to one or more registration statements filed by Amcast, subject,
however, to such reasonable restrictions imposed by the issuer, its Board of
Directors or underwriters, if any, in connection with any offering of the
Additional Purchase Price Stock that may be necessary for compliance with the
Securities Laws or the terms and conditions of such registration statement or
statements.
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ENCLOSURE 5
ESCROW AGREEMENT
THIS ESCROW AGREEMENT is made as of this ___ day of ________, 1997, by
and among
AMCAST INDUSTRIAL CORPORATION, an Ohio corporation ("Amcast"); and
______________________, an Italian limited liability company ("Italco");
and
SPEEDLINE INTERNATIONAL HOLDING B.V., a corporation organized and existing under
the laws of The Netherlands, SAN MARCO FINANZIARIA S.p.A., a corporation
organized and existing under the laws of Italy, GERANCE S.A., a corporation
organized under the laws of Switzerland, XXXXXXX XXXXXXXXX, an Italian citizen,
residing at XXX XXXXX 0000, XXXXX, XXXXXXXXX XXXXXXXXX, an Italian citizen,
residing at XXX XXXXX 0000, XXXXX, XXXXXX XXXXXXXXX, an Italian citizen,
residing at XXXXXXXX 0000, XXXXXX, XXXXX, XXXXXX XXXXXXXXX, an Italian citizen,
residing at XXX XXXXX XXXXXXXXX, XXXXX, XXXXX, and XXXXXXXXX XXXXXXXXX, an
Italian citizen, residing at XXX XXXXX, XXXXX, XXXXX, (all such corporations and
individuals together referred to as the "Shareholders");
and
STAR BANK N.A., A NATIONAL BANKING ASSOCIATION, with its offices at 000 Xxxxxx
Xxxxxx, Xxxxxxxxxx,Xxxx 00000 XXX, as escrow agent (the "Escrow Agent").
IN CONSIDERATION of the mutual covenants and agreements set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, it is hereby agreed that:
ARTICLE I
DEFINITIONS
When used in this Escrow Agreement, the following terms shall have the
meanings specified:
ARBITRATION AWARD. "Arbitration Award" shall mean a written award from
the panel of arbitrators in accordance with Article 10 of the Share Purchase
Agreement.
ESCROW AGREEMENT. "Escrow Agreement" shall mean this Escrow Agreement,
as the same may be amended from time to time in accordance with the terms
hereof.
ESCROWED AMCAST SHARES. "Escrowed Amcast Shares" shall mean _______
(______) common shares of Amcast, without par value, issued in the names of the
Shareholders and delivered by Amcast to the Escrow Agent.
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ESCROW CLAIM NOTICE. "Escrow Claim Notice" shall mean a notice from
Amcast, Italco or any of the Companies to the Shareholders and the Escrow Agent
which sets forth: (a) the fact that an Indemnity Matter has occurred; (b) the
fact that an Indemnity Payment has been made or may be required to be made to
Amcast, Italco or the Companies (c) a specification of the amount of the
Indemnity Payment; (d) a brief description of the facts which gave rise to the
Indemnity Matter; and (e) a request that the Escrow Agent deliver to Amcast, out
of the Escrow Fund, an amount of Indemnity Shares corresponding to the Indemnity
Payment.
ESCROW FUND. "Escrow Fund" shall mean as of a specified date (i) the
Escrowed Amcast Shares (plus all NON-TRADEABLE, non-cash distributions payable
in respect of the Escrowed Amcast Shares) then held in escrow by the Escrow
Agent pursuant to this Escrow Agreement and (ii) the share transfer powers, duly
endorsed in blank, relating to the Escrowed Amcast Shares held in escrow by the
Escrow Agent pursuant to this Escrow Agreement.
INDEMNITY CLAIM OBJECTION NOTICE. "Indemnity Claim Objection Notice"
shall mean a notice from the Shareholders to Amcast, Italco and the Escrow Agent
which sets forth: (a) an objection to delivery of all or any portion of the
Escrowed Amcast Shares in accordance with the terms of an Escrow Claim Notice;
(b) a brief description of the facts which constitute the basis for the
objection; and (c) a demand for arbitration in accordance with Article 10 of the
Share Purchase Agreement.
INDEMNITY MATTER. "Indemnity Matter" shall mean (1) any price
adjustment due to the Purchaser pursuant to Article 2 of the Share Purchase
Agreement; (2) any event or state of facts as to which the Shareholders have
agreed to indemnify Amcast, Italco or the Companies pursuant to Article 9 of the
Share Purchase Agreement; and (3) any other payment due from the Sellers to the
Purchaser in connection with the Share Purchase Agreement.
INDEMNITY PAYMENT. "Indemnity Payment" shall mean any payment of money,
loss suffered or liability incurred, by Amcast, Italco or the Companies, or
asserted against Amcast, Italco or the Companies, as a result of an Indemnity
Matter.
INDEMNITY SHARES. "Indemnity Shares" shall mean, for any Indemnity
Payment, that number of Escrowed Amcast Shares equal to: (a) the relevant
Indemnity Payment converted to United States Dollars at the applicable Share
Payment Exchange Rate; divided by (b) the Amcast Share Payment Price.
JOINT DIRECTION. "Joint Direction" shall mean a notice from, and
executed by each of, Amcast, Italco and the Shareholders to the Escrow Agent
directing the Escrow Agent to take a specified action.
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SHARE PAYMENT EXCHANGE RATE. "Share Payment Exchange Rate" shall mean
the current rate for conversion of any currency other than United States Dollars
published in The Wall Street Journal on the date prior to any sale or delivery
of Escrowed Amcast Shares pursuant to this Agreement.
SHAREHOLDER PERCENTAGE. "Shareholder Percentage" shall mean that
percentage for each Shareholder as is set forth on Schedule A attached to this
Escrow Agreement.
SHARE PAYMENT PRICE. "Share Payment Price" shall mean the closing price
per share of common shares of Amcast, without par value, traded on The New York
Stock Exchange, Inc. on the date prior to any sale or delivery of Escrowed
Amcast Shares pursuant to this Agreement.
SHARE PURCHASE AGREEMENT. "Share Purchase Agreement" shall mean the
Purchase Agreement, dated as of July _____, 1997, by and among the Purchaser,
and the Shareholders together with the Enclosures and Schedules attached
thereto, as the same may be amended from time to time in accordance with the
terms thereof.
TERMINATION DATE. "Termination Date" shall mean the earlier of: (a) the
last day on which there is any amount in the Escrow Fund or (b) December 31,
2002, PROVIDED, HOWEVER, that if any portion of the Escrow Fund is the subject
of one or more pending Escrow Claim Notices as of the date specified in clause
(b) above, as to such portion only, "Termination Date" shall mean the date on
which there has been a final disposition of all such Escrow Claim Notices
pursuant to Section 2.4 or 2.5 of this Escrow Agreement.
Terms not otherwise defined herein are hereby defined as in the Share
Purchase Agreement.
ARTICLE II
THE ESCROW
2.1 BACKGROUND AND INTENTION OF PARTIES. Pursuant to the Share Purchase
Agreement, Italco has acquired all of the issued and outstanding capital stock
of Speedline, and Speedline has become a wholly-owned subsidiary of Italco.
Pursuant to the Share Purchase Agreement, the Shareholders (a) have agreed to
certain adjustments to the Purchase Price and (b) have agreed to indemnify
Amcast, Italco and the Companies against losses, damages, costs and other
matters arising as a result of or related to Indemnity Matters. The purpose of
this Escrow Agreement is to provide a non-exclusive mechanism for payment of and
to secure the rights of Amcast, Italco and the Companies pursuant to the Share
Purchase Agreement with respect to Indemnity Matters.
2.2 ESTABLISHMENT OF ESCROW. Amcast hereby deposits with the Escrow
Agent on behalf of each Shareholder certificates representing such Shareholder's
Shareholder Percentage of the Escrowed Amcast Shares. Each Shareholder hereby
deposits with the Escrow Agent share transfer powers, duly endorsed in blank,
relating to the Escrowed Amcast Shares owned by such Shareholder. Except for any
Indemnity Shares utilized to
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satisfy Claims of Indemnity or other payments due to the Purchaser pursuant to
the Share Purchase Agreement and this Escrow Agreement, from time to time, each
Shareholder shall be deemed to own all of the Escrowed Amcast Shares delivered
by Amcast on his or her behalf to the Escrow Agent pursuant to this Section 2.2,
and shall be entitled to vote, and receive all cash dividends AND TRADEABLE NON-
CASH DIVIDENDS with respect to, that number of the Escrowed Amcast Shares
remaining in the Escrow Fund from time to time corresponding to such
Shareholder's Shareholder Percentage. There also shall be deposited with the
Escrow Agent and included as additional Escrowed Amcast Shares any and all
NON-TRADEABLE shares or other NON-TRADEABLE securities issuable to the
Shareholders as a result of any share dividend, share split, reclassification,
recapitalization, split-up, combination, merger, exchange or readjustment with
respect to the Escrowed Amcast Shares then held by the Escrow Agent. In
addition, prior to transfer and delivery of any Escrowed Amcast Shares, and as a
condition precedent thereto, each Shareholder shall promptly replace any share
transfer powers that the Escrow Agent delivers in connection with a distribution
of THE Escrow Fund pursuant to Section 2.4 or Section 2.5 of this Escrow
Agreement.
2.3 SECURITY INTEREST. The Shareholders hereby grant to Amcast, Italco
and the Escrow Agent (as agent for Amcast, Italco and the Companies) a security
interest in the Escrowed Amcast Shares, and all proceeds and products thereof
(other than cash dividends in respect thereof), to secure the rights of Amcast,
Italco and the Companies under the Share Purchase Agreement with respect to
Indemnity Matters. The provisions of the Uniform Commercial Code as adopted in
the State of Ohio shall govern the security interest granted hereby and, to the
extent required by the Uniform Commercial Code as adopted in the State of Ohio
for perfection of security interests, the Escrow Agent shall act solely as the
agent of Amcast, Italco and the Companies FOR SUCH PURPOSES, and possession of
the Escrowed Amcast Shares by the Escrow Agent shall be, for all legal intents
and purposes, equivalent to possession by Amcast, Italco and the Companies.
2.4 INDEMNITY CLAIM PROCEDURE. Amcast, Italco or any of the Companies
shall issue, or cause to be issued to the Escrow Agent, and provide a copy
thereof to the Shareholders, an Escrow Claim Notice in the event and to the
extent Amcast, Italco or any of the Companies determines that it is entitled to
a payment with respect to an Indemnity Matter. On the date that is fourteen (14)
calendar days after the Escrow Agent has received an Escrow Claim Notice, the
Escrow Agent shall deliver to Amcast, for itself and as agent for Italco and
the Companies, a number of Indemnity Shares (together with the related share
transfer powers) calculated based on the Indemnity Payment set forth in and in
accordance with, the terms of the Escrow Claim Notice, unless within such
fourteen (14) calendar day period the Escrow Agent has received an Indemnity
Claim Objection Notice from the Shareholders. If an Indemnity Claim Objection
Notice is so received, the Escrow Agent thereafter shall not make the delivery
requested in the Escrow Claim Notice except in accordance with either: (a) a
Joint Direction or (b) an Arbitration Award.
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2.5 JOINT DIRECTION. Notwithstanding any other provision of this
Escrow Agreement, the Escrow Agent shall promptly deliver all or any part of
the Escrow Fund in accordance with the terms of a Joint Direction.
2.6 TERMINATION OF ESCROW.
(a) On the Second Anniversary the Escrow Agent shall transfer
to each Shareholder, in accordance with the Shareholder Percentages, a number of
the Escrowed Amcast Shares then remaining in the Escrow Fund calculated as
follows: the number of Escrowed Amcast Shares remaining in the Escrow Fund shall
be multiplied by the Share Payment Price on the Second Anniversary; the
resulting product in United States Dollars shall be reduced by the AMOUNT
CALCULATED PURSUANT TO SECTION 9.2 (A) (II) (B) OF THE SHARE PURCHASE AGREEMENT;
the resulting difference shall be divided by the Share Payment Price on such
date, and the resulting number of Escrowed Amcast Shares shall be transfered to
the Shareholders in accordance with the Shareholder Percentages.
(b) On December 31, 2000, the Escrow Agent shall transfer to
each Shareholder, in accordance with the Shareholder Percentages, a number of
the Escrowed Amcast Shares then remaining in the Escrow Fund, if any, calculated
as follows: the number of Escrowed Amcast Shares remaining in the Escrow Fund
shall be multiplied by the Share Payment Price on such date; the resulting
product in United States Dollars, less the AMOUNT CALCULATED PURSUANT TO SECTION
9.2 (A) (II) (D) OF THE SHARE PURCHASE AGREEMENT; the resulting difference
shall be divided by the Share Payment Price on such date, and the resulting
number of Escrowed Amcast Shares shall be transfered to the Shareholders in
accordance with the Shareholder Percentages.
(c) On December 31, 2001, the Escrow Agent shall transfer to
each Shareholder, in accordance with the Shareholder Percentages, a number of
the Escrowed Amcast Shares then remaining in the Escrow Fund, if any, calculated
as follows: the number of Escrowed Amcast Shares remaining in the Escrow Fund
shall be multiplied by the Share Payment Price on such date; the resulting
product in United States Dollars, less the AMOUNT CALCULATED PURSUANT TO SECTION
9.2 (A) (II) (E) OF THE SHARE PURCHASE AGREEMENT; the resulting difference
shall be divided by the Share Payment Price on such date, and the
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resulting number of Escrowed Amcast Shares shall be transfered to the
Shareholders in accordance with the Shareholder Percentages
(d) Subject to Section 2.6(e) of this Escrow Agreement, on the
Termination Date this Escrow Agreement shall terminate and the Escrow Agent
shall transfer to each Shareholder, in accordance with the Shareholder
Percentages, the number of shares then remaining, if any, in the Escrow Fund.
(e) The Escrow Agent shall deduct from any amounts otherwise
payable to the Shareholders under Section 2.6(d) of this Escrow Agreement and
shall retain, and this Escrow Agreement shall continue as to, any portion of the
Escrow Fund which is the subject of an Escrow Claim Notice and as to which no
final disposition has been made pursuant to Sections 2.4 or 2.5 of this Escrow
Agreement until final disposition of all Escrow Claim Notices pursuant to
Section 2.4 or 2.5 of this Escrow Agreement.
2.7 REPLACEMENT OF ESCROWED AMCAST SHARES.
On the Second Anniversary and at any time thereafter, the Shareholders
jointly shall have the right to receive from the Escrow Agent all of the
Escrowed Amcast Shares then held in the Escrow Fund in exchange for a bank
guaranty or other security instrument equal in amount to the number of Escrowed
Amcast Shares then remaining in the Escrow Fund multiplied by the Share Payment
Price on the date of the exchange, PROVIDED, that Amcast, Italco and the
Shareholders, each in their absolute discretion, have agreed in writing as to
the terms and form of bank guaranty or security instrument to be provided by the
Shareholders. Notwithstanding the foregoing, in no event shall the amount of
such guaranty or other security be required to exceed the amounts required in
Section 2.6 of this Escrow Agreement from time to time.
2.8 DELIVERIES OF INDEMNITY SHARES.
(a) All deliveries of Indemnity Shares by the Escrow Agent to
Amcast pursuant to this Escrow Agreement shall be deemed to be made by all of
the Shareholders. Each Shareholder shall be deemed to have delivered that number
of the relevant Indemnity Shares equal to the Shareholder Percentage for that
Shareholder multiplied by the relevant number of Indemnity Shares.
(b) Upon a delivery of any Indemnity Shares pursuant to this
Escrow Agreement which are less than the total number of shares of Escrowed
Amcast Shares, Amcast thereafter shall deliver new share certificates to the
Escrow Agent representing the number of shares of the Escrowed Amcast Shares
remaining in the Escrow Fund; PROVIDED, however, that as a condition precedent
to any such delivery, each Shareholder
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shall have replaced (DULY ENDORSED) any share transfer powers previously
delivered to the Escrow Agent.
ARTICLE III
ARBITRATION; JURISDICTION
3.1 RIGHTS OF ARBITRATION. All claims, disputes and other matters in
question arising out of, or in connection with, this Escrow Agreement shall be
decided by arbitration in accordance with Article 10 of the Share Purchase
Agreement.
3.2 JURISDICTION. The parties hereby consent to the jurisdiction of the
United States federal courts in and for Xxxxxxxx County, Ohio for purposes of
enforcement and execution of any and all Arbitration Awards and this Escrow
Agreement.
ARTICLE IV
THE ESCROW AGENT
4.1 AGREEMENT. The Escrow Agent hereby acknowledges receipt of the
Escrowed Amcast Shares and agrees to hold and deliver the Escrowed Amcast Shares
on all of the terms and conditions set forth in this Escrow Agreement.
4.2 LIABILITY OF AGENT. The Escrow Agent shall be obligated to perform
only the duties described in this Escrow Agreement. The Escrow Agent may rely on
any instrument or signature believed by it to be genuine and to have been signed
or presented by the proper party or parties duly authorized to do so. The Escrow
Agent shall not be liable for any action taken or omitted by it in good faith
and believed by it to be authorized, nor for action taken or omitted by it in
accordance with advice of counsel, and shall not be liable for any mistake of
fact or error of judgment or for any acts or omissions of any kind unless caused
by willful misconduct or gross negligence. Each party agrees to indemnify the
Escrow Agent and to hold it harmless against any and all liabilities, including
reasonable attorneys' fees, incurred by it as a consequence of that party's
action, and the parties agree jointly to indemnify the Escrow Agent and to hold
it harmless against any and all liabilities, including reasonable attorneys'
fees, incurred by it which are not a consequence of any party's action, except
in either case for the Escrow Agent's own willful misconduct or gross
negligence.
4.3 ADVICE OF COUNSEL. The Escrow Agent shall be entitled to consult
with competent and responsible counsel of its choice with respect to the
interpretation of the provisions hereof, and any other legal matters relating
hereto, and shall be fully protected in taking any action or omitting to take
any action in good faith in accordance with the advice of such counsel.
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4.4 FEES OF ESCROW AGENT. The Escrow Agent shall serve hereunder in
consideration of the fees described on Schedule B to this Escrow Agreement and
the reimbursement of any expenses and other charges reasonably incurred by the
Escrow Agent in connection with the performance of its duties hereunder. Amcast
and the Shareholders each shall pay fifty percent (50%) of all such fees,
expenses and other charges.
4.5 STATEMENTS. The Escrow Agent shall mail to Amcast and the
Shareholders a written accounting of all transactions relating to the Escrow
Fund not less frequently than quarterly.
4.6 SUCCESSOR. If the Escrow Agent at any time resigns, refuses to act
or is removed pursuant to a Joint Direction, then a successor Escrow Agent shall
be jointly selected by Amcast and the Shareholders, or if Amcast and the
Shareholders cannot agree, the successor Escrow Agent shall be selected by the
outgoing Escrow Agent. Any successor Escrow Agent shall be an Ohio banking
corporation or a national banking association with its principal place of
business located in the State of Ohio.
ARTICLE V
TAXES AND REPORTS
5.1 BY THE SHAREHOLDERS. The Shareholders, jointly and severally,
hereby assume all obligations imposed now or hereafter by any applicable tax law
with respect to any payments from the Escrow Fund to the Shareholders under this
Escrow Agreement, and undertake to instruct the Escrow Agent in writing with
respect to the Escrow Agent's responsibility for withholding and other taxes,
assessments or other governmental charges, certificates and governmental
reporting in connection with any such payments.
5.2 BY AMCAST AND ITALCO. Amcast and Italco, jointly and severally,
hereby assume all obligations imposed now or hereafter by any applicable tax law
with respect to any payments from the Escrow Fund to Amcast or Italco under this
Escrow Agreement, and undertake to instruct the Escrow Agent in writing with
respect to the Escrow Agent's responsibility for withholding and any other
taxes, assessments or other governmental charges, certifications and
governmental reporting in connection with any such payments.
ARTICLE VI
MISCELLANEOUS
6.1 ASSIGNABILITY; SUCCESSORS. None of the rights and liabilities of
Amcast, Italco or the Shareholders under this Escrow Agreement are assignable or
delegable, in whole or in part, without the prior written consent of the other
parties; PROVIDED, that either or both of Amcast and Italco may assign their
respective rights hereunder to an affiliated entity and/or any
successor-in-interest to Amcast or Italco, whether by operation of law, purchase
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of all or substantially all of the assets or capital stock thereof or otherwise,
without the prior written consent of the Shareholders. In the event of death of
any individual shareholder, this Escrow Agreement shall be binding upon, and
inure to the benefit of, the heirs of such Shareholder.
6.2 SURVIVAL. All agreements, representations and warranties made in
this Escrow Agreement or in any document delivered pursuant to this Escrow
Agreement shall survive the execution and delivery of this Escrow Agreement and
the delivery of any such documents.
6.3 GOVERNING LAW. This Escrow Agreement and the documents issued
pursuant hereto shall be construed and interpreted according to the laws of the
State of Ohio. Notwithstanding the foregoing, it is hereby understood that
Indemnity Matters and the Shareholders' obligations to indemnify Amcast and
Italco shall be determined according to Italian substantive law as set forth in
Section 10.4 and Section 11.4 of the Share Purchase Agreement.
6.4 COUNTERPARTS; HEADINGS. This Escrow Agreement may be executed in
several counterparts, each of which shall be deemed an original, but such
counterparts shall together constitute but one and the same agreement. The
article and section headings in this Escrow Agreement are inserted for
convenience of reference only and shall not constitute a part of this Escrow
Agreement.
6.5 ENTIRE AGREEMENT. This Escrow Agreement, the Share Purchase
Agreement and the documents referred to herein and therein contain the entire
understanding of the parties with respect to the subject matter hereof. There
are no restrictions, promises, warranties, covenants or undertakings other than
those expressly set forth herein and therein. This Escrow Agreement supersedes
all prior negotiations, agreements and undertakings among the parties with
respect to such subject matter.
6.6 NOTICES. All communications or notices required or permitted by
this Escrow Agreement shall be in writing and shall be deemed to have been given
at the earlier of the date when actually delivered to an individual party or to
an officer of a corporate party by personal delivery or telephonic facsimile
transmission (with confirmed receipt) or three (3) business days after being
mailed by, certified or registered mail, postage prepaid, return receipt
requested, and addressed as follows, unless and until any of such parties
notifies the others in accordance with this Section of a change of address:
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If to the Shareholders:
x/x Xx. Xxxxxxxxx Xxxxxxxxx
Xxxxxxxx 0000
Xxxxxx, Xxxxx
with a copy to:
Avv Xxxxxxxxx Xxxxxxxxxx
Camillotti - Xxxxxx - Polettini
Galleria Borromeo
Padova, Italy
Telefax Number: 00-00-000-000
If to Amcast or Italco:
Amcast Industrial Corporation
0000 Xxxxxxxxxx Xxxxxxx Xxxxx
Xxxxxx, Xxxx 00000-0000 XXX
Telefax Number: 0-000-000-0000
Attention: Chief Executive Officer
with a copy to:
Xxxxxxxx, Hine & Xxxxx LLP
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxx 00000-0000 XXX
Telefax Number: 0-000-000-0000
Attention: Xxxxxxx X. Xxxxxxxxxxx, Esq.
and
Xxxxxx, Origoni & Partners
Xxx Xxxxxxx Xxxxxxx, 00
00000 Xxxx, Xxxxx
Telefax Number: 00-0-000-0000
Attention: Avv. Xxxxxxxxx Xxxxxx
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If to the Escrow Agent:
Star Bank N.A.
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000 XXX
Telefax Number: 1-___-___-____
Attention: Mr. _______________]
6.7 AMENDMENT. No amendment of this Escrow Agreement shall be effective
unless in writing and signed by all of the parties hereto.
6.8 SEVERABILITY. Any provision of this Escrow Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Escrow Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
6.9 INTERPRETATION. Unless the context requires otherwise, all words
used in this Escrow Agreement in the singular number shall extend to and include
the plural number, all words in the plural number shall extend to and include
the singular number and all words in any gender shall extend to and include all
genders.
6.10 DATES. If the date of any action provided for in this Escrow
Agreement falls on a public holiday in Ohio, or a Saturday or Sunday, then such
date shall be deemed extended to the next business day.
6.11 POWER OF ATTORNEY. The Shareholders hereby appoint Mr. Xxxxxxxxx
Xxxxxxxxx as their common representative and attorney in fact, unless and until
a successor shall be appointed unanimously by the Shareholders with two weeks'
prior written notice to Amcast, with full power: a) to bind the Shareholders and
to take any and all actions that are required or permited under this Escrow
Agreement on the part of any or all of them, including, but not limited to, any
communication, notice, appointment and exercise of any rights, so that each of
the Shareholders shall be prevented from exercising any such activity or right
directly and without the intervention of Mr. Xxxxxxxxx Xxxxxxxxx; and b) to
receive any communication, notice or advice directed to one or more of the
Shareholders pursuant to to this Escrow Agreement.
6.12 FURTHER ASSURANCES. Each party to this Escrow Agreement covenants
and agrees that, from time to time, such party shall at the request of and
expense of any requesting party, execute and deliver all such documents,
including, without limitation, all such additional certifications, conveyances,
transfers, consents and other assurances, and do all such other acts and things
as any other party hereto, acting reasonably, may from
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time to time request to be executed or done in order to better evidence or
perfect or effectuate any provision of this Escrow Agreement or of any agreement
or other document executed in connecion herewith, or any of the respective
obligations intended to be created hereby or thereby.
IN WITNESS WHEREOF, the parties have executed this Escrow Agreement as
of the day and year first above written.
WITNESS AMCAST INDUSTRIAL CORPORATION
By:
------------------------------ ----------------------------
Xxxx X. Xxxxx
President
ITALCO
By:
------------------------------ ----------------------------
------------------
President
WITNESS: THE SHAREHOLDERS:
SPEEDLINE INTERNATIONAL
HOLDING B.V.
By:
------------------------------ ----------------------------
SAN MARCO FINANZIARIA S.p.A.
By:
------------------------------ ----------------------------
GERANCE S.A.
By:
------------------------------ ----------------------------
------------------------------ -------------------------------
XXXXXXX XXXXXXXXX
------------------------------ -------------------------------
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XXXXXXXXX XXXXXXXXX
------------------------------ -------------------------------
XXXXXX XXXXXXXXX
------------------------------ -------------------------------
XXXXXX XXXXXXXXX
------------------------------ -------------------------------
XXXXXXXXX XXXXXXXXX
WITNESS: THE ESCROW AGENT:
STAR BANK N.A.
By:
------------------------------- -----------------------------
Title:
-------------------------
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SCHEDULE A
----------
SHAREHOLDER PERCENTAGES:
Name Shareholder Percentage
SPEEDLINE INTERNATIONAL
HOLDING B.V. 12.33 %
SAN MARCO FINANZIARIA S.p.A. 8.00 %
GERANCE S.A.. 47.79 %
XXXXXXX XXXXXXXXX 4.76 %
XXXXXXXXX XXXXXXXXX 6.70 %
XXXXXX XXXXXXXXX 6.70 %
XXXXXX XXXXXXXXX 6.86 %
XXXXXXXXX XXXXXXXXX 6.86 %
---------
TOTAL: 100.00 %
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SCHEDULE B
----------
ESCROW AGENT'S FEES
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