EXHIBIT 4.09
CONFORMED COPY
XXXXXXXX XXXXXXX XXXXX XXXXXX
CITIGROUP CENTRE, 33 CANADA SQUARE, XXXXXX XXXXX, XXXXXX X00 0XX
November 28, 2001
MARCONI MOBILE SPA
X/x
Xxx Xxxxxx Xx
Xxxxxx
X0X 0XX
Ladies and Gentlemen:
Marconi Mobile SpA, a company organized under the laws of the Republic of Italy
(the "Seller"), proposes, subject to the terms and conditions stated herein, to
sell ordinary shares ("Shares"), of Lottomatica S.p.A, a company organized under
the laws of the Republic of Italy (the "Company"), to Salomon Brothers
International Limited (the "Purchaser"). An aggregate of 6,163,641 Shares (the
"Securities") are to be sold hereunder. The Securities will be purchased by the
Purchaser as a block trade subject to the rules and regulations of Consob and
the Mercato Telematico Azionario in relation to such trades, subject, however,
to the additional matters set out below. The Seller understands that the
Securities will be resold by the Purchaser. The Seller understands further that
such sales will occur as soon after this Agreement becomes effective as in the
sole judgment of the Purchaser is advisable.
1. The Seller represents and warrants to, and agrees with, the Purchaser,
as of the date hereof and as of the Closing Date that:
(a) It has full power under its constitutive documents and
applicable law, and all authorizations, approvals, consents
and licenses required by it have been unconditionally obtained
and are in full force and effect, to permit it to enter into
and perform this Agreement; and this Agreement has been duly
authorized, executed and delivered by it and is a valid and
binding agreement of it enforceable in accordance with its
terms;
(b) The sale and delivery of the Securities to be sold by it
hereunder and the compliance by it with all of the provisions
of this Agreement, as well as the consummation of the
transactions herein contemplated, will not conflict with or
result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or
to which any of its property or assets is subject, or any
statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over it or its
property or assets, except for any such conflict, breach,
violation or default which has been waived or could not
reasonably be expected to have a material adverse effect on
the transactions contemplated by this Agreement;
(c) No person has any conflicting right, contingent or otherwise,
to purchase or to be offered for purchase the Securities, or
any of them; it has valid title to, and the legal right and
the power to sell and transfer full beneficial legal interest
in, the Securities, and transfer of the Securities to the
Purchaser will pass title to such shares, free and clear of
all security interests, liens, encumbrances, equities or other
claims together with all rights and advantages now and
hereafter attaching to such Securities; the Securities rank
pari passu in all respects with and are identical to the
remaining ordinary shares of the Company;
(d) Neither it, nor any of its affiliates, nor any person acting
on its or their behalf, has or will make bids or purchases for
the purpose of creating actual or apparent active trading in,
or of raising the price of, any Shares or any right to
purchase such Shares or securities convertible into or
exchangeable or exercisable for Shares which is designed to or
which has constituted, or which might reasonably be expected
to cause or result in, manipulation of the price of any
security of the Company; and
(e) The Seller is not aware of any material information (including
without limitation any information regarding any material
adverse change or prospective material adverse change in the
condition of, or any actual, pending or threatened litigation,
arbitration or similar proceeding involving, the Company) that
is not described in the Company's most recent annual report or
subsequent public information releases which information is
necessary to enable investors to make an informed assessment
of the assets and liabilities, financial position, profits and
losses and prospects of the Company and its subsidiaries.
2. Subject to the terms and conditions set forth in this Agreement, the:
Seller agrees to sell the Securities to the Purchaser at a net price
per Security of 6.52 euros (the "Purchase Price"), which equals
40,186,939.32 euros in the aggregate for all the Securities to be
purchased by the Purchaser. The Purchaser agrees to purchase the
Securities at the Purchase Price.
3. Unless otherwise agreed by the parties, completion of the sale and
purchase of the Securities will take place on 3 December, 2001 (the
"Closing Date"), by transfer of the Securities to an account or
accounts in Monte Titoli of the Purchaser or its affiliate, designated
by the Purchaser, against payment by or on behalf of the Purchaser of
the Purchase Price multiplied by the number of Securities purchased by
the Purchaser, in same-day funds.
4. The Seller covenants and agrees with the Purchaser that it will notify
the Purchaser forthwith if on or prior to the Closing Date it comes to
the Seller's knowledge that any of the representations, warranties,
undertakings or agreements set out in Section 1 above ceases to be true
and accurate or becomes misleading in any respect or that there has
been any breach of any of such representations, warranties,
undertakings or agreements. The obligations of the Seller set forth in
this Section 4 shall survive termination of this Agreement.
5. The respective agreements, representations, warranties and other
statements of the Seller and the Purchaser, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by
or on behalf of the Purchaser or any controlling person of the
Purchaser, or the Seller or any officer or director or any controlling
person of the Seller, and shall survive delivery of and payment for the
Securities.
6. All statements, requests, notices and agreements hereunder shall be in
writing, and shall be delivered or sent by mail or facsimile
transmission, if to Salomon Brothers International Limited to Victoria
Plaza, 000 Xxxxxxxxxx Xxxxxx Xxxx, Xxxxxx XX0X 0XX, Attention: General
Counsel's Office, fax: +44-20-7500 1023; and, if to the Seller to
Marconi Mobile
SpA, x/x Xxx Xxxxxx Xx Xxxxxx X0X 0XX, fax: 000 0 000 0000, Attention:
The Secretary. Any such statements, requests, notices or agreements
shall take effect upon receipt thereof.
7. This agreement is governed by, and shall be construed in accordance
with, English law. The Seller hereby agrees for the benefit of the
Purchaser that the courts of England are to have jurisdiction to settle
any disputes which may arise out of or in connection with this
Agreement and that accordingly any suit, action or proceedings
(together referred to as "Proceedings") arising out of or in connection
with this Agreement may be brought in such courts. Nothing contained in
this clause shall limit any right to take Proceedings against the
Seller in any other court of competent jurisdiction, nor shall the
taking of Proceedings in one or more jurisdictions preclude the taking
of Proceedings in any other jurisdiction, whether concurrently or not.
8. This Agreement may be executed by any one or both of the parties hereto
in any number of counterparts and via facsimile, each of which shall be
deemed to be an original, but all such counterparts shall together
constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us an original counterpart hereof, and upon the acceptance hereof
by you, this letter and such acceptance hereof shall constitute a binding
agreement among the Seller and the Purchaser.
Very truly yours,
SALOMON BROTHERS INTERNAL LIMITED
By: X. XXXXX
Name: Xxxxx Xxxxx
Title: Managing Director
Accepted as of the date hereof:
MARCONI MOBILE SPA
By: X. XXXXXXX
Name: C. J. C. Xxxxxxx
Title: EVP Corporate Finance
