This MASTER AGREEMENT entered into as of the 1st day of July, 1996 among
IAO - Industrie Riunite S.p.A., an Italian corporation with offices at
Xxxxxx Xxxxxx, 00 - XXXXXXXX (XXXXX) represented by Xx. Xxxxxxxx Xxxxxxxxx
XXXXXXX COMPONENTI PLASTICI S.p.A., an Italian corporation with offices at
Xxxxxx Xxxxxx 00, XXXXXXXX (XXXXX) represented by Xx. Xxxxxxxx Xxxxxxxxx
CARIFIN S.p.A., an Italian corporation with offices at Xxx Xxxxxxxxxxx 00 -
Milano, represented by Xx. Xxxxxxxx Xxxxxxxxx
XXXXXX XXXXXX S.r.l. - an Italian limited liability company with offices at
Xxx Xxxxxxxxx, 00 - XXXXXX (XXXXX) represented by Xx. Xxxx Xxxxxxx
GRUPPO PLASTICO INDUSTRIALE S.r.l., an Italian limited liability company
with offices at Xxx Xxxxx Xxxxx, 00 - XXXXXX (XXXXX) represented by Xx. Xxxxxxxx
Xxxxxxxx
XXXXXX XXXXXXXXX, an Italian individual, represented by Xx. Xxxxxxx Xxxxx
his attorney-in-fact (hereafter jointly referred to as the "VENDORS")
and
BREED TECHNOLOGIES, INC., a Delaware corporation, with offices at 0000 Xxx
Xxxxx Xxxxxxx, Xxxxxxxx, XX 00000 - USA represented by Xxxxxxx X. Xxxxxxxxxxx,
Xx. (hereinafter referred to as "BREED")
WITNESSETH:
WHEREAS, VENDORS own, directly or indirectly, 100% of the shares or quotas
constituting the entire capital of: FAS S.p.A., an Italian corporation with
registered office at FERENTINO (Frosinone) Xxx Xxxx Xxxxxxxxxx, 000 (FAS),
AUTOAVIO S.r.l., an Italian limited liability company with registered office at
GUARDAMIGLIO (Milano), Via (027) xxxxxx, 8 (AUTOAVIO), A.P.CO.-Advanced Plastic
Company S.r.l., an Italian limited liability company with registered office at
ANAGNI (Frosinone), Via della Riserva I tronco (X.X.XX.), AG INTERNATIONAL
S.r.l., an Italian limited liability company with registered office at TORINO,
Xxx Xxxx, 00 (AG), IRON SUD S.r.l., an Italian corporation with registered
office at LIMATOLA (Xxxxxxxxx), Localita Aia Xxxxxxxxxx (IRON SUD), and 51% of
the quotas of ARAS S.r.l., an Italian limited liability company with registered
office at GIAVENO (Torino), Via Xxxxx, 40 (ARAS), (hereinafter jointly referred
to as the "Companies"); the XXXXXXX trademark, the real property hereafter
listed as well as the business and assets constituting the business carried out
by GPC; and
WHEREAS, the parties have agreed to enter into a series of agreements whereby,
through purchase of XXXXXXX trademark, business of GCP on a going concern basis,
the purchase of shares/quotas of the Companies and the purchase of real
property, BREED directly or indirectly through its designee/s (as from time to
time identified in the relevant agreements herewith enclosed) will carry out the
business previously carried out by GCP and control each of the Companies in the
same percentage and/or proportion previously held by the VENDORS;
NOW, THEREFORE, the parties agree as follows:
1. As of the 1st day of July 1996, the parties have entered into this
MASTER AGREEMENT.
2. PRIOR TO CLOSING ACTIONS
2.1 Prior to the Closing, as hereafter defined, the VENDORS have taken or
cause to be taken the following actions: 2.1.1 The resignation of the
Sole Director of XXXXXXX PLASTURGIA; 2.1.2 The election of a Sole
Director designated by BREED; 2.1.3 The sale to BREED (and/or to its
designee) of 100% of the quotas representing the outstanding capital of
XXXXXXX PLASTURGIA S.r.l. (GP) for the purchase
price set forth on Exhibit "1" hereto;
2.1.4 the grant of the Power(s) of Attorney and other corporate
actions necessary to sign all required documents, agreements
and deeds to be executed at the Closing on behalf of GP, the
VENDORS, the Companies or any of them.
3. CLOSING
3.1 Except for the San Xxxxxxx and Xxxxxx-Via Concordia 55- property, the
conclusion of the transactions provided for or contemplated herein will
take place on July 1, 1996 at the offices of Notary Xxxxxxxx X. Xxxxxxx
in Turin, Italy or at such other time and place as the parties may
agree in writing (the "Closing"). The closing on San Xxxxxxx and Xxxxxx
properties shall occur by July 31, 1996.
4. CLOSING ACTIONS
4.1 At the Closing, the VENDORS shall - or shall cause the Companies
concerned, through its or their authorized representatives - and BREED
and/or its designees shall:
4.1.1 execute and deliver the Representations and Warranties
Agreement in the text annexed hereto as Exhibit "1";
4.1.2 execute and deliver the Agreement for the sale of XXXXXXX
trademark to GP in the text annexed hereto as Exhibit "3" and
pay the purchase price as set forth in the Exhibit "1" hereto;
4.1.3 execute and deliver the Notarial deed of transfer of the
Business of GCP on a going concern basis, in the text annexed
hereto as Exhibit "4" and pay the purchase price as set forth
in the Exhibit "1" hereto;
4.1.4 execute and deliver the notarial deeds of transfer of real
property hereafter listed and pay the purchase price for each
as set forth in the Exhibit "2" hereto. The real property is
summarily described in Exhibit "5" hereto. The exact
description to be contained in the Notarial Deeds of Transfer
shall be prepared by Notary Xxxxxxx X. Xxxxxxx of Turin;
4.1.5 execute the agreement of sale of the shares of stock
constituting 100% of the capital of IRON SUD and FAS in the
text annexed hereto as Exhibit "6" and pay the purchase price
for each as set forth in the Exhibit "1" hereto; endorse the
share certificates to BREED's designee and record the transfer
on the shareholders' registers of IRON SUD and FAS;
4.1.6 execute and deliver the notarial deeds of transfer of the
quotas representing 51% of the capital of ARAS and 100% of the
capital of AG, AUTO AVIO and X.X.XX. in the text of Exhibit
"7" hereto together with such further documents as may be
required by law before the Notary Xxxxxxx X. Xxxxxxx and pay
the purchase price for each as set forth in the Exhibit "1"
hereto.
4.2 The real properties to be transferred pursuant to Section 4.1.4 shall
be transferred free and clear of all mortgages, liens and encumbrances
except for those listed in Exhibit "8".
4.3 With the exception of FAS, the shares and quotas to be transferred
pursuant to Sections 4.1.5 and 4.1.6 shall be transferred free and
clear of all mortgages, pledges, liens, encumbrances, security
interests, charges, claims, restrictions and options.
4.4 The signatures of the Deeds and/or Agreements of Transfer of the shares,
quotas,
trademarks and real property provided for herein, the payment of the
purchase price(s) and the performance of obligations further thereto
shall not prejudice or effect the validity and enforceability of any of
the provisions of this Agreement and of the Representations and
Warranties Agreement executed contemporaneously herewith, all of which
will survive the Closing and which will prevail over any of the
provisions of said Deeds or Agreements of Transfer.
4.5 The deposit of sixteen billion Lire (Lit.16,000,000,000) made by the
Purchaser on May 16, 1996 shall be applied in accordance with Exhibit
4.5.
5. OTHER ACTS
5.1 Each party hereto shall do and perform or cause to be done and
performed all such further acts and things and shall execute and
deliver all such other agreements, consents, certificates, instruments
and documents as the other party hereto reasonably may request in order
to carry out the intent and accomplish the purposes of this Agreement
and the consummation of the transactions contemplated hereby.
5.2 In particular, at or immediately after the Closing, the VENDORS shall
cause the Directors and Auditors (if any) of each of the Companies to
resign in order to allow the election of new corporate bodies composed
by BREED's designees.
5.3 BREED represents to VENDORS that, prior to the execution hereof, it has
filed the communication required by law with the Italian Anti-Trust
Authority (Autorita Garante della Concorrenza e del Mercato).
BREED represents to VENDOR that the above mentioned communication has
been drafted on the basis of the information made available by each of
the parties involved in the transaction. BREED has used its best
efforts to prepare the communication in a due and complete form.
Nonetheless, the parties acknowledge that the denial of approval by the
Italian Anti Trust Authority to the transaction described in the
Exhibit 1 through 8 hereto, may require the rescission of the
transaction. Consequently if the Italian Anti Trust Authority does not
approve the transaction as agreed, the parties undertake in good faith
to consider and adopt the action required to make it acceptable to the
Anti Trust Authority. If however the amendments to the transaction are
not agreed upon and/or are not acceptable to the Italian Anti Trust
Authority, all the transfers and other obligations will be rescinded
with retroactive effect as of the Closing.
5.4 BREED hereby undertakes that within the period of six (6) months
following the Closing it shall obtain the release of the guarantees
granted by IAO and/or by Rigamonti personally to secure the loan
executed between GCP and Cassa di Risparmio di Parma e Piacenza
transferred on a going concern basis to GP together with the assets of
GCP as described in Exhibit 4 to this Master Agreement.
6. NON COMPETITION
6.1 After the Closing, the VENDORS shall not compete directly or indirectly
with the business carried out by BREED, directly through each of the
Companies and/or through XXXXXXX PLASTURGIA, for the period of five
years.
7. CONFIDENTIALITY
7.1 Neither party to this Agreement will make any public disclosure or
publicity release in respect of the subject matter contained herein
without the written consent of the other parties until the fulfilment
of the Closing Actions provided for in Article 4 above.
8. GOVERNING LAW
8.1 The laws of Italy shall govern the interpretation, validity and
performance of this Agreement. This Agreement has been executed in an
English language text. Should a translation hereof or of any Exhibit
hereto be prepared and/or executed-also in order to comply with
mandatory provisions of the Italian laws-in the Italian language, the
English text shall prevail. In case of controversy on the meaning of
the Agreement, the Parties shall make reference to the English text in
order to interpret the same.
9. ARBITRATION
9.1 Any dispute arising between the parties in connection with the
validity, termination, interpretation or performance of this Agreement
shall be submitted to the decision of a Panel of three (3) Arbitrators,
which shall decide in accordance with the law ("in via rituale e
secondo diritto"). To the ends of arbitration, the VENDORS will
constitute a sole party. The party wishing to submit to Arbitration
shall appoint its Arbitrator and give notice to the other party of its
appointment. Within fifteen (15) days of receipt of this notice, the
other party shall appoint its Arbitrator and shall give notice to the
first party of its appointment. Within fifteen (15) days of the
appointment of the second Arbitrator, the two Arbitrators so appointed
shall agree upon the appointment of a third Arbitrator. If no agreement
is reached, the third Arbitrator shall be appointed, upon application
of the most diligent party, by the President of the Court of Appeal of
Milan. Similarly, if the party to whom the notice of the appointment of
an Arbitrator has been given does not, in turn, appoint its Arbitrator,
said Arbitrator shall also be appointed together with the third
Arbitrator by the President of the Court of Appeal of Milan, which will
also provide for the substitution of any Arbitrator who dies or
resigns. Arbitration shall be conducted in the Italian language and
take place in Milan.
10. NOTICES
10.1 All notices, in connection with this Agreement, shall be dated and in
writing, delivered by personal delivery, by registered mail, telegram,
telecopier or courier service to the address set forth below or such
other address as such party may specify for the purpose by notice to
the other.
Each notice shall be effective when delivered at the following
addresses: If to VENDORS:
IAO INDUSTRIE RIUNITE S.p.A.
Xxxxxx Xxxxxx, 00
XXXXXXXX
If to BREED:
BREED TECHNOLOGIES, INC.
0000 Xxx Xxxxx Xxxxxxx
Xxxxxxxx, XX 00000 XXX
with a further copy to:
Xxxxx X. Xxxxx, Esq.
PAVIA e ANSALDO
Xxx xxxx'Xxxxxxxxxx, 0
00000 Xxxxx, Xxxxx
Fax: 00 000000
11. EXPENSES
11.1 Each party hereto shall pay its legal and other expenses
incurred in connection with this Agreement. Notarial fees and
expenses shall be for the account of BREED.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
date first above written.
BREED TECHNOLOGIES, INC.
By:
IAO INDUSTRIE REUNITE S.p.A.
By:
XXXXXXX COMPONENTI PLASTICI S.p.A.
By:
CARIFIN S.p.A.
By:
XXXXXX XXXXXX S.r.l.
By:
GRUPPO PLASTICO INDUSTRIALE S.r.l.
BY: /s/Xxxxxx Xxxxxxxxx
XXXXXX XXXXXXXXX
LIST OF EXHIBITS
1 (A) Purchase price and (B) application of deposit 2 Representations and
Warranties Agreement 3 Sale of XXXXXXX trademark 4 Deed of sale of GCP's
business on a going concern basis 5 Deed of transfer of real properties 6 Deed
of transfer of shares of IRON SUD-FAS 7 Deed of transfer of quotas of ARAS, A.G.
INTERNATIONAL, AUTO AVIO, X.X.XX. 8 List of mortgages, liens, encumbrances
Exhibit 1
A. PURCHASE PRICE (Net of VAT)
TRANSFER OF XXXXXXX PLASTURGIA Lit 100,000,000
SALE OF XXXXXXX TRADEMARK Lit 1,000,000,000
GCP BUSINESS ON A GOING CONCERN BASIS Lit 38,740,122,642
TRANSFER OF NICHELINO REAL ESTATE Lit 9,739,880,000
TRANSFER OF COPIANO REAL ESTATE Lit 6,075,600,000
TRANSFER OF RIVALTA REAL ESTATE Lit 10,448,800,000
TRANSFER OF XXXXXX, via Concordia 55 Lit 3,544,380,000
TRANSFER OF XXXXXX, via Concordia 49 Lit 2,710,300,000
TRANSFER OF SAN XXXXXXX, via Concordia 49 Lit 13,571,400,000
TRANSFER OF APCO QUOTAS, via Concordia 49 Lit 16,500,000,000
TRANSFER OF FAS SHARES, via Concordia 49 Lit 11,500,000,000
TRANSFER OF IRON SUD, via Concordia 49 Lit 3,400,000,000
TRANSFER OF AG QUOTAS, via Concordia 49 Lit 15,500,000,000
TRANSFER OF ARAS, via Concordia 49 Lit 100,000,000
TRANSFER OF AUTOAVIO, via Concordia 49 Lit 100,000,000
--------------------
Lit
B. APPLICATION OF Lit 16,000,000,000 DEPOSIT
SALE OF XXXXXXX TRADEMARK Lit 1,190,000,000
TRANSFER OF IRON SUD SHARES Lit 3,400,000,000
TRANSFER OF SAN XXXXXXX REAL ESTATE Lit 5,229,497,600
TRANSFER OF NICHELINO Lit 1,850,577,200
TRANSFER OF COPIANO Lit 1,154,364,000
TRANSFER OF RIVALTA Lit 1,985,272,000
TRANSFER OF XXXXXX, via Concordia 49 Lit 514,957,000
TRANSFER OF XXXXXX, via Concordia 55 Lit 675,332,200
--------------------
Lit 16,000,000,000
ACQUISITION OF XXXXXXX GROUP OF COMPANIES
DETERMINATION OF PURCHASE PRICE-REAL ESTATE
(Amounts in Lire)
Purchase Price Less Mortgage :equals Net Proceeds
Rivalta 10,448,800,000 0 10,448,800,000
Xxxxxx (Xxxxxx) 3,554,380,000 (2,213,000,000) 1,341,380,000
Xxxxxx (GCP) 2,710,300,000 0 2,710,300,000
Nichelino 9,739,880,000 (4,726,000,000) 5,013,880,000
Copiano 6,075,600,000 (4,571,000,000) 1,504,600,000
San Xxxxxxx 13,571,400,000 0 13,571,400,000
Total-Real Estate 46,100,360,000 (11,510,000,000 34,590,360,000
DETERMINATION OF PURCHASE PRICE-SIX SISTER COMPANIES
(In billions of Lire)
A B C D E
12/31/95 Appraised 12/31/95 Market in Appraised 12/31/95 Market in Total
Equity of Value Book excess of Value Book value Excess of Value
Company Real value real NBV-RE M&E M&E NBV-M&E (Rounded)
Estate estate (B-C) (B-C) (A+D)
APCO 10.7 10.2 4.8 5.3 17.2 16.8 0.4 16.5
FAS 10.3 6.3 7.0 (0.6) 10.6 8.8 1.9 11.5
FAS Rome 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0
Total FAS 10.3 6.3 7.0 (0.6) 10.6 8.8 1.9 11.5
IRON SUD 3.9 2.4 1.3 1.1 4.1 5.7 (1.6) 3.4
AG INTER. 7.8 N/A N/A 0.0 8.7 1.0 7.7 15.5
ARAS 0.1 N/A N/A 0.0 N/A N/A 0.0 0.1
AUTO AVIO 0.1 N/A N/A 0.0 N/A N/A 0.0 0.1
TOTALS 32.9 18.9 13.1 5.8 40.6 32.2 8.4 47.1
GOING-CONCERN BUSINESS OF XXXXXXX COMPONENTI PLASTICI, S.p.A. ("GCP")
Value
Description of GCP Assets Acquired In Lire In US$ Comments
Inventory 33,684,324,746 21,872,938 Capped at Lit 35 Billion-Final value determined by audit
Xxxxxxx M&E (Rivalta, Nichelino HQ) 27,837,400,000 18,076,234 Advanced values-AA
GPI M&E (S Ben, Copiano, Grugliasco) 40,484,800,000 26,288,831 Final value determined by appraisal
Additional Fixed asset Purchases 3,407,257,000 2,212,505 Capped at Lit. 8 Billion-Final value determined by audit
Other 1,929,091,257 1,252,657 INAIL, Employee advance, prepaid INAIL, supplier advance
Provision (10,843,060,000) (7,040,948)
Macchi Machinery and Equipment 4,720,500,000 3,065,260 Appraised-AA
Goodwill 5,000,000,000 3,246,753
Intellectual Property 1,000,000,000 649,351
--------------------- ----------------
Total Assets 107,220,313,003 $69,623,580
Value as of 5/31/96
Less Specific Liabilities Assumed: In Lire In US$
Accrued INAIL (503,248,587) (326,785) Advances to employees
TFR and other personnel liabilities (33,059,593,688) 21,467,269) Final value determined by audit
Cassa di Risparmio (33,465,863,014) (21,731,080) Final value determined by audit
Xxxxxxxx loan (1,451,485,072) (942,523) Final value determined by audit
----------------------------- ------------------------
Total Liabilities Assumed (68,480,190,361) (44,467,656)
----------------------------- ------------------------
Net Purchase Price 38,740,122,642 $25,155,924
............................. ........................
Exchange Rate (Lit./US$) 1,540
EXHIBIT 2
REPRESENTATIONS AND WARRANTIES AGREEMENT
This REPRESENTATIONS AND WARRANTIES AGREEMENT (the "Agreement") entered into as
of July 1st, 1996 among:
Breed Technologies, Inc., a Delaware corporation, with principal office at 0000
Xxx Xxxxx Xxxxxxx, Xxxxxxxx, XX 00000-0000, represented by Xxxxxxx X.
Xxxxxxxxxxx Xx. (hereinafter "Breed")
Xxxxxxx Plasturgia Srl, an Italian corporation with principal office at Xxxxxx
Xxxxxx 00, Xxxxxxxx, represented by Xxxxxxx X. Xxxxxxxxxxx Xx. (herinafter
"Xxxxxxx")
(Jointly the "Purchaser")
-on one part-
and
IAO-Industrie Riunite SpA, an Italian corporation with registered office at
Xxxxxx Xxxxxx 00, 00000 Xxxxxxxx (To), represented by Xx. Xxxxxxxx Xxxxxxxxx
("IAO");
Xxxxxxx Componenti Plastici SpA, an Italian corporation with registered office
at Xxxxxx Xxxxxx 00, 00000 Xxxxxxxx (To), represented by Xx. Xxxxxxxx Xxxxxxxxx
("GCP")
Carifin SpA, an Italian corporation with registed office at vai Quintiliano 40
Milano represented by Xx. Xxxxxxxx Xxxxxxxxx ("Carifin")
Gruppo Plastico Industriale Srl, an Italian limited liability company with
registered office at via Xxxxx Xxxxx, 10 Torino, represented by Xx. Xxxxxxxx
Xxxxxxxx ("GPI")
Xxxxxx Xxxxxxxxx, represented by Xx. Xxxxxxx Xxxxx ("EC")
Xxxxxx Xxxxxx Srl, an Italian limited liability company with registered office
at via Concordia 49 Xxxxxx (Milano), represented by Xx. Xxxx Xxxxxxx ("Xxxxxx")
Xxxxxxxx Xxxxxxxxx ("GR", as a guarantor (collectively, the "Sellers")
-on the other part-
WHEREAS, IAO owns the 99% of the capital of GCP, while the remaining 1% is owned
by Carifin; and
WHEREAS, IAO, directly or indirectly, controls the Sellers; and
WHEREAS, pursuant to a certain Master Agreement, entered into as of July 1, 1996
(the "Master
Agreement"), the Purchaser will purchase on a going concern basis from GCP
certain assets and assume certain liabilities of the business carried out by
GCP; and
WHEREAS, pursuant to the Master Agreement, Purchaser's designated subsidiary
will purchase the shares of stock constituting 100% of the capital of FAS SpA,
an Italian stock corporation with registered office at via Xxxx Xxxxxxxxxx 000 -
Xxxxxxxxx (Xxxxxxxxx) ("FAS") and Iron Sud SpA, an Italian stock corporation
with registered office at Localita Aia Xxxxxxxxxx - Xxxxxxxx (Xxxxxxxxx) ("Iron
Sud") (the "Companies"); and
WHEREAS, pursuant to the Master Agreement, Purchaser's designated subsidiary
will purchase the quotas representing 51% of the capital of ARAS Srl, an Italian
limited liability company with registered office at xxx Xxxxx 00 - Xxxxxxx
(Xxxxxx) ("XXXX") and quotas representing 100% of the capital of AG
International Srl, an Italian limited liability company with registered office
at xxx Xxxx 00 - Xxxxxx ("XX"), AutoAvio Srl, an Italian limited liability
company with registered office at xxx 0 xxxxxx 0 - Xxxxxxxxxxxx (Xxxxxx) ("Auto
Avio") and A.P. CO. - Advanced Plastic Company Srl, an Italian limited liability
company with registered office at via della Riserva I tronco - Anagni
(Frosinone) ("A.P. CO.") (the "Limited Liability Companies") ; and
WHEREAS, pursuant to the Master Agreement, Purchaser's designated subsidiaries
will purchase real property owned by Sellers located at Xxxxxxx, Xxxxxx,
Nichelino Copiano and San Xxxxxxx; and
WHEREAS, in the absence of audited financial statements or due diligence reports
and to induce Purchaser to enter into the Master Agreement and to perform the
obligations provided for thereunder, including the payment of the purchase price
as set forth in Exhibit "1" to the Master Agreement, each of the Sellers,
jointly and severally represent and warrant to the Purchaser and agree with the
Purchaser as follows:
1.1 Organization and Good Standing
Each of the Sellers, except for EC and Gr, is a corporation, duly
organized, validity existing, and in good standing under the laws of
Italy.
1.2 Except as set forth in Exhibit 1.2 hereto, each of the Sellers has all
requisite corporate power and authority to enter into and deliver the
Master Agreement and this Agreement and to consummate the transactions
completed thereunder . The execution, delivery and performance by
Sellers of the Master Agreement and this Agreement , the transfer of
Real Property, the Sale of the Business of GCP on a Going Concern
Basis, the transfer of the Shares of the Companies and of the Quotas
of the Limited Liability Companies will not result in a breach or
violation of, or a default under, the certificate of incorporation or
bylaws of Sellers or any agreement or instrument to which Sellers are
a party or by which Sellers or their properties are bound or any
statute, rule, regulation or judgement, injunction, order or decree of
any court, governmental or administrative agency to which Sellers or
their assets or property are subject, or require the obtaining by
Sellers of any consent, approval, authorization, permit or license
from, or filling with, any governmental or administrative authority or
other person. The Master Agreement,
the agreements, deeds and transfers executed thereunder and this
Agreement constitute the legal, valid and binding obligation of
Sellers, enforceable in accordance with their terms.
1.3 Litigation
Except as set forth in Exhibit 1.3 hereto, no action or proceeding is
pending or threatened by any court, tribunal or governmental body, and
no claim or demand has been made against Sellers seeking to restrain or
prohibit or to obtain substantial damages or other relief in connection
with the consummation of the transactions contemplated hereby.
1.4 Existence of Good Standing
Each of the Companies and the Limited Liability Companies is a
corporation, duly organized, validity existing, and in good standing
under the laws of Italy.
1.5 Authority ; No Conflict
Except as set forth in Exhibit 1.5 hereto, each of the Companies and
the Limited Liability Companies and GCP has all requisite corporate
power and authority to: (a) own, lease or operate its properties and
assets and to carry on its businesses as presently conducted; (b) enter
into and deliver the Master Agreement and this Agreement; and (c)
consummate the transactions contemplated therein and therein including,
without limitation, to sell and transfer the Shares and Quotas, the
Real Property to Purchaser and its designee, as well as transfer to
Purchaser the business of GCP on a going concern basis. The execution,
delivery and performance of such transfers will not result in a breach
or violation of, or a default under, the certificate of incorporation
or by-laws of either of the Companies, the Limited Liability Companies
or GCP or any agreement or instrument to which any of them are their
properties are bound, result in the acceleration of , or cause them to
become obligated to repay or prepay any obligations or claims which
otherwise are not now due and owing , or violate or breach any statute,
rule, regulation or judgement, injunction, order or decree of any court
or governmental or administrative agency to which any of them or their
assets or properties is subject , nor require the obtaining by any such
party of any consent, approval, authorization, permit or license from,
or filing with, any governmental or administrative authority or other
person except for the Anti Trust communication performed by the
Purchaser.
1.6 Corporate Action
Each of the Sellers has, in accordance with Italian Law taken all
corporate action necessary to propose and resolve the transfer of the
Shares, Quotas and Real Property contemplated hereby and by the Master
Agreement, as well as the transfer of business of GCP on a going
concern basis; each of the Sellers has duly waived its respective
preemptive rights (if any) to purchase.
1.7 Capitalization
Except as set forth in Exhibit 1.7 hereto, there are nooutstanding
resolutions of Shareholders' or Quotaholders' Meetings of the Companies
or the Limited Liability Companies authorizing the increase of capital
or issuance of any class of Shares or
Quotas. All of the Shares and Quotas are duly authorized, validly
issued and fully paid, and are free and clear of any pledge,
burden or enforcement proceeding.
1.8 Option and Other Share Rights
(a) There are no existing options, warrants, calls, commitments,
agreements or rights requiring, nor any convertible or
exchangeable Shares, Quotas, bonds or debentures outstanding
which, upon exercise or conversion, would require the issuance
or sale of any additional Shares of the Companies' stock or
Quotas of the Limited Liability Companies or any securities
convertible into capital or the purchase, return or redemption
of capital or other securities;
(b) there are no existing subscription or preemptive rights
affecting or relating to the capital stock of the Companies or
Quotas of the Limited Liability Companies or, to the extent
such preemptive rights exist in connection herewith, the same
have been waived, relinquished or not exercised.
1.9 Compliance with Organizational Documents, Laws and Contracts
Except as set forth in Exhibit 1.9 hereto, none of the Sellers, the
Companies or the Limited Liability Companies is in violation of its
certificate or articles of incorporation or by-laws, or other
organizational documents, or of any law, ordinance, administrative or
governmental rule or regulation applicable to either of them or of any
decree of any court or governmental agency or body having jurisdiction
over them, or in default in any material respect in the performance of
any obligation, agreement or condition contained in any bond,
debenture, note, or any other evidence of indebtedness, including short
term and medium term loan agreements, contracts for the sale of goods,
or in any material agreements, including, without limitation, any
contracts for the sale of goods pursuant to Law No. 1329 of November
28, 1965, as amended (the "Xxxxxxxx Law")' or customer or supplier
contracts, indentures, leases or other instruments to which either of
them is a party or by which either of them or any of their respective
properties may be bound. All loan payments, debt and contract
obligations are current and are being paid in a timely manner, before
default, in the ordinary course of business.
1.10 Title to Assets
Except as set forth in Exhibit 1.10 hereto, the Companies, the Limited
Liability Companies and GCP have good and marketable title to the
property and assets owned by them, as shown on their respective
Financial Statements as at December 31, 1995, free and clear of all
pledges , liens, burdens or enforcement proceedings, and except for
property and assets which may have been disposed of by them in the
ordinary course of business since the date of their respective
Financial Statements.
1.11 Financial Statements
The Financial Statements of the Companies and the Limited Liability
Companies as at December 31, 1995 enclosed hereto as Exhibits 1.11 a,
b, c, d, e and f have been prepared in accordance with generally
accepted Italian accounting principles consistently applied. They are
true, complete and correct in all material respects and fairly
represent the properties, assets, liabilities, financial position and
results of operations for the period
stated. There are no facts, circumstances or conditions that will give
rise to a liability or obligation of any kind and nature whatsoever
which is not reflected or disclosed in the Financial Statements.
1.12 Events Subsequent to December 31, 1995 Since December 31, 1995
and through the date hereof, there has not been any material
adverse change in the business, financial condition, operations,
results of operations or future prospects of the Companies, the
Limited Liability Companies and/or GCP. Without limiting the
generality of the foregoing, except in connection with effecting
the transactions contemplated by the Master Agreement and this
Agreement, since that date, the Companies, the Limited Liability
Companies and/or GCP have not: (a) relocated, removed from their
facilities, disposed of, sold , leased, transferred or assigned
any of their assets, tangible or intangible, other than in the
ordinary course of business; (b) entered into any agreement,
contract or lease (or series of related agreements, contracts,
leases and licenses) outside the ordinary course of business; (c)
accelerated, terminated, modified or canceled in any respect any
material agreement, contract, lease or license (or series of
related agreements, contracts, leases and licenses) involving
more than Lit 100,000,000 to which they are a party or by which
they are bound, except in the ordinary course of business; (d)
voluntarily attached or voluntarily permitted any pledge, lien,
burden or enforcement proceeding to be attached to any of its
properties or assets, tangi- ble or intangible; (e) made any
capital expenditure (or series of related capital expenditures)
since May 16, 1996 either involving more than Lit. 150,000,000 or
outside the ordinary course of business; (f) delayed or postponed
the payment of any accounts payable or other liabilities outside
the ordinary course of business; (g) experienced any material
damage, destruction or loss (whether or not covered by
insurance), on any of its properties or assets, including any of
its manufacturing facilities, in excess of Lit. 150,000,000; (h)
entered into any new agreements with its employees, written or
oral, or modified the terms of any such existing contract or
agreement in any material respect, outside the ordinary course of
business; (i) granted any increase in the base compensation or
benefits of any of its employees outside the ordinary course of
business; (k) (i) depleted its inventory of raw materials or
supplies below normal operating levels (ii) intentionally
increased the volume, outside the ordinary course of business, of
such raw materials or supplies, or (iii) built up its inventory
of finished goods from normal operating levels; (l) to the
present knowledge of the Sellers there has not been any other
material occurrence, event, incident, action, failure to act or
transaction outside of the ordinary course of business which had,
or is reasonably likely to have, a material adverse effect on the
Companies, the Limited Liability Companies and /or GCP; (m)
resolved to pay or have paid dividends or any other distribution
to their
shareholders or quotaholders; (n) booked any accounts receivable for
which the revenue has not been realised or properties have not been
sold or shipped.
1.13 Undisclosed Contingent Liabilities
None of the Companies , the Limited Liability Companies nor GCP has any
liability which would be required to be set forth in a balance sheet
prepared in accordance with generally accepted Italian accounting
principles consistently applied, including a liability for taxes,
except for (a) liabilities set forth on the face of the balance sheets
as of December 31, 1995 and (b) liabilities which have arisen after
December 31, 1995 in the ordinary course of business, and none of which
result from, arise out of, relate to, is in the nature of , or was
caused by any breach of contract, breach of warranty, tort,
infringement or violation of law. None of the Companies , the Limited
Liability Companies nor GCP have any contingent liabilities or claims,
including, without limitation, any arising out of or resulting from the
sale or purchase of any business or interest in any business previously
owned and sold, or not owned but acquired, by any of them. None of them
has incurred any liability or obligation, direct or contingent, or
entered into any transaction, not in the ordinary course of business,
that is material to them and there has not been any change in the
capital stock or material increase in the short-term or long-term debt
of the Companies or the Limited Liability Companies or any material
adverse change, or a development involving, or which may be reasonably
expected to involve, a prospective material adverse change in their
condition, financial or otherwise, business, net worth or results of
operations. None of them are parties to any contracts, agreements or
arrangements in which they reasonably expect or anticipate they will
suffer pecuniary loss, damages, or a diminution in value, or from which
it can reasonably be expected that any of the foregoing shall result.
1.14 Broker's Fees
Neither the Purchaser or the Sellers has any liability to pay any fees
or commissions to any broker, finder or agent with respect to the
transactions contemplated by the Master Agreement and this Agreement.
1.15 Intellectual Property
(a) The Companies, the Limited Liability Companies and the business of
GCP own or have the right to use, pursuant to license, sublicense,
agreement or permission, all intellectual property (which includes all
patents, trademarks, copyrights, trade secrets and other proprietary
rights) reasonably necessary for the operation of their business as
presently conducted. All intellectual property owned or used by them
immediately prior to the date hereof will be available for use immediately
hereafter on identical terms and conditions and there is not now asserted
any charge, complaint or claim alleging that any of them interferes with,
infringes upon or has misappropriated any third party rights in any
intellectual property.
(b) The List attached as Exhibit 1.15 hereto identifies each patent,
design patent or trademark which has been used or registered in the name of
the Companies, the Limited Liability Companies and/or GCP, and identifies
each license, agreement or other permission which either of them has
granted to any third party with respect to any of its intellectual
property.
(c) No third party has interfered with, infringed upon or
misappropriated any intellectual property rights of the Companies, the
Limited Liability Companies and/or GCP in any material respect and , to the
Seller's knowledge, the Companies, the Limited Liability Companies and/or
GCP have not interfered with, infringed upon or misappropriated any
intellectual property rights of any third parties.
1.16 Condition of Tangible Assets
As of the date hereof, substantially all of the assets of the
Companies, the Limited Liability Companies and/or GCP, including both
tangible and intangible, are in good operating condition and repair,
subject to normal wear and tear and are usable in the regular and
ordinary course of business as presently conducted.
1.17 Tax Matters
(a) The Companies and/or the Limited Liability Companies have filed
all of the tax returns required to be filed by them. All such tax returns
were correct and complete in all respects. All taxes owed by them as shown
on said tax returns have been paid or accrued on their books. None of them
currently is the beneficiary of any extension of time within which to file
income tax returns. No claim has been asserted by any authority in any
jurisdiction where any of them has not filed tax returns that it is subject
to taxation by that jurisdiction. There are no pledges, liens or
encumbrances on any of the assets of the Companies or the Limited Liability
Companies imposed in connection with any failure, or alleged failure, to
pay any tax.
(b) The Companies and the Limited Liability Companies have withheld
and paid all taxes required to have been withheld and paid in connection
with amounts paid to any employee, independent contractor, consultant,
creditor, stockholder or other third party.
(c) No authority is expected to asses any additional taxes for any
period for which income tax returns have been filed previously. There is no
dispute or claim concerning any tax liability for either of the Companies
and the Limited Liability Companies, either (i) claimed or raised by any
authority in writing, or (ii) based upon personal contact with any agent of
such authority. The Sellers have delivered to Breed correct and complete
copies of all income tax returns, examination reports and statements of
deficiencies assessed against or agreed to by the Companies and the Limited
Liability Companies since 1994. (d) The Companies and the Limited Liability
Companies have not waived any statute of limitation in respect of taxes or
agreed to an extension of time with respect to income tax assessments or
deficiencies.
(e) The unpaid income taxes of the Companies and the Limited Liability
Companies for the year ending December 31, 1995, did not exceed the reserve
for tax liability.
(f) Subject to acceptance of tax returns as filed, all tax losses as
shown on each of the Companies' and the Limited Liability Companies' most
recent tax returns can be carried forward to their current or subsequent
fiscal years and can be utilized to offset future gains, in accordance with
applicable laws.
1.18 Material Contracts
Except as set forth in Exhibit 1.18 hereto, none of the Companies, the
Limited Liability Companies and/or GCP is bound by (a) any material
leases, (b) any material agreement, contract or commitment relating to
the employment of any person, (c) any agreement , contract or
commitment limiting the freedom of them to engage in any line of
business or to compete with any other person, (d) any agreement,
contract or commitment not entered into in the ordinary course of
business which involves payment of Lit. 150,000,000 or more in any
calendar year and is not cancelable without penalty within 30 days, (e)
any intercompany agreements with related parties, including any of
their affiliates, subsidiaries or shareholders, or (f) any contract
with a customer where the price charged for its product sold is fixed,
either absolutely or by a specific formula, for a period of six months
or longer. Neither of the Companies, the Limited Liability Companies
nor GCP has violated any term or condition of any material contract or
agreement in any material respect . Contracts made in the ordinary
course of business involving an obligation or commitment of less than
Lit. 150,000,000 in any calendar year shall be deemed not to be
material for purposes of this section. The Sellers, the Companies, the
Limited Liability Companies and/or GCP have obtained all the consents
coming from third parties as to the transfer to the Purchaser of Shares
and quotas, real property, business relationships and agreements
transferred pursuant to the Master Agreement.
1.19 Inventory
All inventory of each of the Companies, the Limited Liability Companies
and/or GCP is accounted for or stated in the Companies' Financial
Statements, and as to GCP, on the list attached to the Deed of Transfer
of Business on a going concern basis in accordance with the generally
accepted U.S. accounting principles. All of the inventory of each of
them consists of readily merchantable and saleable goods and products
which are in conformity with existing industry standards for quality;
is not in obsolete, slow moving unsaleable or unusable condition; is
valued at reasonable amounts based on the ordinary course of business
during the past six months; and is not subject to any write down or
write off.
1.20 Notes and Accounts Receivable
All notes and accounts receivable of the Companies and the Limited
Liability Companies are accounted for or stated on the Companies'
Financial Statements, in accordance with generally accepted Italian
accounting principles consistently applied. The accounts receivable of
each of the Companies and the Limited Liability Companies are valid and
genuine; have arisen solely out of bona fide sales and deliveries of
goods, performance of services and other business transactions in the
ordinary course of business consistent with past practice; are not
subject to valid defenses or counterclaims; and are collectible after
billing at the full recorded amount thereof less, in the case of
accounts receivable appearing on the Financial Statement, the recorded
allowance for collection losses
thereon. The allowance for collection losses on the Financial
Statements has been determined in accordance with generally accepted
Italian accounting principles.
1.21 Illegal Payments or Arrangements
None of the Companies, the Limited Liability Companies or GCP nor any
employee or agent has made any payments or received or retained any
funds in violation of any law, rule or regulation, and none of the
Companies, the Limited Liability Companies or GCP has entered into any
illegal or unauthorized contractual arrangements or agreements or is a
party to any criminal litigation.
1.22 Permits and Licenses
Each of the Companies, the Limited Liability Companies and GCP has such
permits, licenses, franchises and authorizations from governmental of
regulatory authorities ("Permits") as are necessary to own their
respective properties and to conduct their business in the ordinary
course, except where the failure to have any such permit would not have
a material adverse effect on the condition (financial or otherwise) ,
business, properties, net worth or results of operations of the
Companies, of the Limited Liability Companies an/or GCP; each of them
has fulfilled and performed all of its material obligations with
respect to such Permits and no event has occurred which allows , or
after notice or lapse of time would allow, revocation or termination
thereof or results in any material impairment of the rights of the
holder of any such Permits and no such Permits contain any restrictions
that are materially burdensome to any of the Companies, the Limited
Liability Companies and/or GCP.
1.23 Financial Condition of the Companies
The Companies, the Limited Liability Companies and/or GCP are solvent
and, prior hereto, have not commenced bankruptcy or other insolvency
proceedings, either voluntarily or involuntarily, under any applicable
Italian law or procedures. With the exception of AUTO AVIO, the Sellers
do not expect the Companies and/or the Limited Liability Companies to
need additional capital to meet their operational needs or financial
requirements now or for the foreseeable future. The Sellers do not
intend or anticipate causing the Companies, the Limited Liability
Compaies and/or GCP to commence or file bankruptcy or other insolvency
proceedings and no creditor has threatened to commence such proceedings
against any of them.
1.24 Environmental Health and Safety Laws
Except as set forth in Exhibit 1.24 hereto, the Companies,
the Limited Liability Companies and/or GCP:
(a) are in substantial compliance with any and all applicable EC,
Italian governmental, regional, provincial and municipal laws and
regulations relating to the protection of human health and safety, to the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws") and there is no soil or ground water
contamination at any of their sites;
(b) have received all permits, licenses or other approvals required of
them under applicable Environmental Laws including, without limitation,
certificates of fire and accident prevention;
(c) are in compliance with the terms and conditions of any such
permit, license or approval, except where such noncompliance
with the terms and conditions of such permits, licenses or
approvals, will not, singularly or in the aggregate, have a
material adverse effect on the condition (financial or
otherwise), business, properties, net worth or operations of
either of the Companies or the Limited Liability Companies;
and
(d) are not required to make any further significant
interventions to xxxxx or correct any environmental conditions or
to bring their facilities or properties into substantial
compliance with any applicable laws and regulations relating to
Environmental Laws, and are not the subject of any open claims
being asserted by USSL, the regional health authority. The
associated costs and liabilities to the Companies, the Limited
Liability Companies and/or GCP(including, without limitation, any
capital or operating expenditure for interventions required for
clean-up, closure of properties or compliance with Environmental
Laws or any permit, license or any related constraints on
operating activities and potential liabilities to third parties)
do not, singularly or in the aggregate, have a material adverse
effect on the condition (financial or otherwise), business,
properties, net worth or results of their operations taken as a
whole.
1.25 Litigation
Except as set forth in Exhibit 1.25, the Companies, the Limited
Liability Companies and/or GCP:
(a) are not subject to any outstanding injunction, judgement,
order, decree or ruling;
(b) are not a party to , or threatened to be made a party to, any
action, suit , proceeding, hearing, investigation of, in or
before any court or judicial or administrative agency or any
regional, local or municipal jurisdiction or before any
arbitrator; or are a party, or threatened to be made party to,
any action, suit, proceeding, hearing, investigation, charge,
complaint, claim or demand against either of them arising out of
any injuries to individuals or property as a result of the
ownership, possession or use of a product manufactured, sold,
leased, distributed or delivered by any of them. The potential
risk or liability that could result to the Companies, the Limited
Liability Companies and/or GCP from each of the claims disclosed
in Exhibit 1.25 has been accurately estimated by the Companies ,
the losses therefrom, if adversely determined, would not exceed
such estimates. The losses therefrom, if adversely determined
would have a material adverse affect on their business, financial
condition, operation or results of operations.
1.26 Product Warranty
Each product manufactured ,sold leased or delivered by the Companies,
the Limited Liability Companies and/or GCP is in conformity with
applicable contractual commitments and all express and implied
warranties, and none of them has any liability for recall, replacement
or repair thereof or other damages in connections therewith,
subject only to the reserve for product warranty claims.
1.27 Product Liability
None of the Companies, the Limited Liability Companies nor GCP has any
liability arising out of any injury to any individual or property as a
result of the ownership, possession or use of any of the products
manufactured, sold, leased or delivered by any of them prior to the
date hereof.
1.28 Employee Claims
Except as set forth in Exhibit 1.28 hereto, there are no collective
bargaining agreements or labor agreements to which any of the
Companies, the Limited Liability Companies and/or GCP is a party,
covering any of their employees. None of them has any strikes,
discrimination claims, retaliatory discharge claims, sexual harassment
claims, claims of unfair labor practices, collective bargaining
disputes, unpaid wage claims or other labor/employee disputes pending
against them in any court administrative agency.
1.29 Insurance
Each of the Companies, the Limited Liability Companies and/or GCP has
in place and is maintaining in effect policies of insurance protecting
their interests and their properties as is customary for like similar
businesses. Without limiting the generality of the foregoing, they have
in effect, and shall continue to have in effect through the Closing,
the policies set forth in Exhibit 1.29.
Upon request, each of the Companies, the Limited Liability Companies
and/or GCP shall furnish Purchaser, at the Closing, copies of such
policies or certificates of insurance evidencing the existence and
continuation of such insurance coverage to and through the Closing.
1.30 Real Estate, Leases
(a) Except as disclosed in the December 31, 1995 Financial
Statements, with respect to each parcel of real property
transferred pursuant to the Master Agreement: (i) the Sellers
have good and marketable title to such real property, free and
clear of any mortgage, pledge, lien, burden or enforcement
proceeding, easement, covenant or other restriction, and recorded
easements, covenants and other restrictions which do not impair
the current use, occupancy, marketability of title, of the
property subject thereto; (ii) there are no leases, subleases,
licenses, concessions or other agreements granting to any party
or parties the right to use or occupy any portion of the real
property; (iii) there are no outstanding options or rights of
first refusal to purchase the real property, or any portion
thereof or interest therein; and (iv) there are no parties (other
than the Companies, the Limited Liability Companies and/or GCP)
in possession of the real property.
(b) The Companies, the Limited Liability Companies and/or
GCP are parties to various leases and subleases. With
respect to each such lease and sublease: (i) such lease or
sublease is valid, legal, binding, enforceable and in full
force and effect; and (ii) all facilities leased or
subleased thereby are supplied with such
utilities and other services as are necessary for the proper
operation and use of said facilities.
1.31 Employment
The Sellers have delivered to Purchaser a full list of names of all of
the Companies', the Limited Liability Companies' and/or GCP's
employees, with their employment level, personal code , date of birth,
date of commencement of employment, and current compensation. - There
is no agreement or arrangement with respect to cessation of employment
or
retirement;
- there are no amounts owing to any present or former employee
other than renumeration accrued due or for reimbursement of
business expenses other then those recorded in the books of
account;
- the Companies, the Limited Liability Companies and/or GCP have
at all times complied in all material respects with all
regulations relating to workers' representatives, trade union
representatives, health and security committee and the Italian
local health authorities;
- there are no disputes or judicial proceedings or claims
pending or threatened against the Companies, the Limited
Liability Companies and/or GCP concerning employment, service
or consultancy agreements, the breach or termination thereof
and/or the right to be on the payroll of the Companies, the
Limited Liability Companies and/or GCP;
- all social security contributions due pursuant to the law and
the terms of employment have been paid and fully cover the
pension contributions to which the employees are entitled,
based on their services. The Companies, the Limited Liability
Companies and/or GCP have duly made all other contributions
required by law to be paid on behalf of their employees;
- the Companies, the Limited Liability Companies and/or GCP have
received no notice of assessment or proposed assessment of any
additional pension or social security contributions;
- the termination reserve ('TFR") accrued for employees fully
cover their obligations under Italian law to the date hereof.
1.32 Cassa integrazione xxxxxxxx
The Sellers have filed a request for the grant to GCP of the benefits
of temporary suspension (Cassa integrazione xxxxxxxx) for ___ employees
as set forth in Exhibit 1.32 hereto. The benefit applied for will be
granted and there shall be no prejudice to Purchaser by reason of the
application or of its denial. Consequently, all costs and negative
consequences resulting from the filing of the application as well as to
its denial for the period ending June 30, 1996 shall be exclusively
borne by the Sellers.
2. Disclosure
The representations and warranties contained in this Agreement do not
contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements and information
contained in the Master Agreement and in this Agreement
not misleading.
3. Purchase Price
3.1 The purchase price of the Companies and the Limited Liability Companies
was arrived at by adding or reducing to the Equity as of December 31,
1995 of each the excess or deficiency (if any) of the Appraised Value
of the tangible fixed assets owned by it as regards the book value of
the tangible fixed assets. The Equity as listed in Exhibit 3.1 hereto
are true and correct and calculated in accordance with Italian
Generally Accepted Accounting Principles. Since December 31, 1995 there
has been no reduction in excess of five percent ( 5%) of the Aggregate
Equity.
3.2 The parties agree that upon determination of the final equity,
excluding intangibles and fixed assets, as of June 30, 1996 as
determined by audit in accordance with Italian generally accepted
accounting principles (Italian GAAP), the net purchase price may be
negatively adjusted if the fiscal equity is reduced in excess of five
per cent (5%) as set forth in 3.1
3.3 The Business transferred on a going concern basis, pursuant to the Deed
of Sale of Business on a going concern basis, include all the assets
necessary for the continuing operation of the Business in the same
manner as previously conducted.
4. INDEMNIFICATION
4.1 General Indemnity
Except for EC and CARIFIN who shall warrant and indemnify the Purchaser
within the limit of their pro-rata participation respectively into FAS
and AUTO AVIO, each of the Sellers, jointly and severally, (the
"Indemnifying Party") shall indemnify, defend and hold harmless the
Purchaser (the "Indemnified Party") and all of their respective
affiliates, officers, directors, employees and shareholders (
collectively "Indemnified Persons") from, and will pay to them the
amount of any claim, liability, obligation, loss, damage, assessment,
judgement, cost and expense (including, without limitation, reasonable
attorney fees and accountant fees and costs and expenses reasonably
incurred in investigating, preparing, defending against or prosecuting
any litigation, arbitration or claim, action, suit, proceedings or
demand) of any kind or character (and without giving effect to any tax
benefit to the Indemnified Party) arising out of or in any manner
incident, relating or attributable to (a) any inaccuracy in any
representation or breach of any warranty of the Indemnifying Party
contained in this Agreement, or (b) any failure by the Indemnifying
Party to perform or observe, or to have performed or observed, in full,
any covenant, agreement or condition to be performed or observed by
such party under the Master Agreement and this Agreement.
4.2 Sellers will have no liability for indemnification until the total
amount of claims exceed one hundred million Lire (Lit. 100,000,000) for
each sales or transfer provided for in article 4 of the Master
Agreement.
4.3 Guarantee
The total amount of indemnification pursuant to article 4 shall not
exceed the sum of twenty-five billion Lire (Lit. 25,000,000,000).
However, Sellers and Purchaser agree that a special reserve of ten
billion eight hundred and forty-three million sixty thousand Lire
(Lit.10,843,060,000) has been established. They further agree that any
claims made in accordance with 4.1 and 4.2 above shall be deducted from
the reserve until the reserve is totally depleted. Also, the parties
agree that, in the event that the Purchaser obtains an Italian
government subsidy under an application filed 28 November 1990
deliberazione n' 7143, such subsidy amount will be applied to any
claims made in excess of the special reserve. All claims in excess of
the amounts of the special reserve and subsidy (if received ) shall be
promptly paid by the Sellers within thirty (30) days of written demand.
The Seller shall have the right to participate in the defense,
settlement and remediation of all claims at the Sellers' expense.
4.5 Survival of Indemnification
The indemnity obligation contained in Article 4, hereof shall remain
operative and in full force and effect regardless of (a) the
termination or expiration of this Agreement, (b) any investigation made
by or on behalf of or knowledge held by, any indemnified person, and
(c) the consummation of the transactions contemplated hereby provided,
however, that claims for indemnification shall be made by notice not
later than December 31, 2001 for matters of a tax nature and not later
than five years from the date hereof for all other claims.
4.6 Cooperation
The Sellers and the Indemnified Party will, upon reasonable request and
at the expense of the Indemnifying Party, cooperate with the
Indemnified Party in the defense of any matter asserted by a third
party which may give rise to a claim for indemnification.
5. REPRESENTATION AND WARRANTIES OF PURCHASER
Each of the Purchaser, jointly and severally, represent and warrant and
agree with the Sellers as follows:
5.1 Organization and Good Standing
Each of the Purchaser is a corporation duly organized, validly existing
and in good standing under the law of their State of occupation. Each
of the Purchaser has all requisite corporate power and authority to
enter into and deliver the Master Agreement and this Agreement and to
consummate the transactions contemplated hereunder. The execution,
delivery and performance by the Purchaser of the Master Agreement, this
Agreement, the purchase of Real Property, the purchase of the Business
of GCP on a Going Concern Basis, the transfer of the shares of the
Companies and of the quotas of the Limited Liability Companies will not
result in a breach or a violation of or a default under, the
certificate of incorporation or By-Laws of the Purchaser or any
agreement or instrument by which they or their properties are bound or
any statement, rule, regulation or judgement, injunction, order or
decree of any court, governmental or administrative agency to which
Purchaser or their assets or property are subject or require the
obtaining
of any consent, approval or authorization, permit or license from or
filing with, any governmental administrative authority or any other
person. The Master Agreement, the agreements, deeds and transfers
executed thereunder and this Agreement constitute the legal, valid and
binding obligations of the Purchaser, enforceable in accordance with
their terms.
5.2 Relationships with the Employees
In connection with the purchase on a going concern basis from GCP as
per the deed of sale annexed as Exhibit 4 to the Master Agreement, in
the event that all or some of the employees - whose Employment
contracts are transferred together with the GCP Business under the
terms of the mentioned sale of business on a going concern basis- do
not give, as provided by the Italian law, their consent to the transfer
so releasing GCP from the obligation to pay them the TFR accrued up to
June 30, 1996, Purchaser hereby acknowledges that it has to be the sole
responsible for the payment of such TFR and consequently undertakes to
keep harmless GCP from possible claims of any of the Employees in
respect of the payment of TFR accrued up to June 30, 1996.
6. ASSIGNMENT AND REVOCATION
6.1 None of the parties hereto shall:
(a) transfer or assign this Agreement or their interest herein to
pay any other party, except that a transfer to an affiliated
party or related party is permitted hereby ; or
(b) cancel, terminate or revoke this Agreement or any Agreement
made in connection herewith.
7. MISCELLANEOUS
7.1 Survival of Covenants
The representations, warranties and covenants of the parties hereto
shall survive the consummation of the transactions contemplated hereby
without limitation.
7.2 Amendment and Waiver
This Agreement may be amended only by a writing signed by the Sellers
and Purchaser. Any provision of this Agreement may be waived if in
writing signed by the party or parties affected.
7.3 Binding Effect
This Agreement and all the provisions hereof shall be binding upon and
inure to the benefit of the parties hereto, their respective successors
and any permitted assigns of their rights hereunder.
7.4 Counterparts
This Agreement may be executed in several counterparts, each of which
shall be deemed to be an original, but all of which shall constitute
one and the same instrument.
7.5 Language - Applicable Law The Laws of Italy shall govern the
interpretation, validity and performance of this
Agreement. This Agreement has been executed in an English text. If an
Italian version is prepared, the English Language text shall prevail.
In case of controversy on the meaning of the Agreement, the parties
shall make reference to the English text in order to interpret the
same.
7.6 Further Assurances
Each party hereto shall do and perform or cause to be done and
performed all such further acts and things and shall execute and
deliver all such other agreements, cerficates, instruments and
documents as any other party hereto reasonably may request in order to
carry out the intent and accomplish the purposes of the Master
Agreement and this Agreement and the consummation of the transactions
contemplated hereby.
7.7 Arbitration
Any dispute arising between the parties in connection with the
validity, termination, interpretation or performance of this Agreement
shall be submitted to the decision of a Panel of three (3) Arbitrators,
which shall decide in accordance with the law ("in via rituale e
secondo diritto"). To the ends of arbitration, the Sellers will
constitute a sole party, as will the Purchaser. The party wishing to
submit to Arbitration shall appoint its Arbitrator and give notice to
the other party of its appointment. Within fifteen (15) days of receipt
of this notice, the other party shall appoint its Arbitrator and shall
give notice to the first party of its appointment. Within fifteen (15)
days of the appointment of the second Arbitrator, the two Arbitrators
so appointed shall agree upon the appointment of a third Arbitrator. If
no agreement is reached, the third Arbitrator shall be appointed, upon
application of the most diligent party, by the President of the Milan
Court of Appeal. Similarly, if the party to whom the notice of the
appointment of an Arbitrator has been given does not, in turn, appoint
its Arbitrator, said Arbitrator shall also be appointed, together with
the third Arbitrator, by the President of the Milan Court of Appeal,
which will also provide for the substitution of any Arbitrator who dies
or resigns. Arbitration shall be conducted in the Italian language and
take place in Milan.
7.8 Notices
All notices, in connection with this Agreement, shall be dated and in
writing, delivered by personal delivery, by registered mail, telegram,
telecopier or courier service to the address set forth below or such
other address as such party may specify for the purpose by notice to
the other. Each notice shall be effective when delivered at the
following addresses:
If to Purchaser:
Breed Technologies, Inc.
0000 Xxx Xxxxx Xxxxxxx
Xxxxxxxx, XX 00000-0000
Attn..: Xxxxxxx X. Xxxxxxxxxxx Xx.
Fax: 000 000 0000000
with a copy to:
Xxxxxxx Plasturgia S.r.l.
c/o
Attn. :
Fax:
If to Sellers:
IAO Industrie Riunite S.p.A.
Xxxxxx Xxxxxx, 00
00000 Xxxxxxxx To
Attn.:
Fax:
With a copy to:
Xxxxx X. Xxxxx, Esq.
PAVIA e ANSALDO
Xxx xxxx'Xxxxxxxxxx, 0
00000 Xxxxx, Xxxxx
Fax: 00 000000
7.9 Legal and Other Expenses
Each party hereto shall pay its legal and other expenses incurred in
connection with this Agreement.
7.10 Captions
The Article and Section captions used herein are for reference purpose
only, and shall not in any way affect the meaning of interpretation of
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
of the year first above written.
Breed Technologies, Inc. IAO Industrie Riunite S.p.A.
By By
Xxxxxxx Plasturgia S.r.l. Xxxxxxx Componenti Plastici S.p.A.
By By
Carifin S.p.A.
By
Gruppo Plastico Industriale S.r.l.
By
Xxxxxx Xxxxxxxxx
Xxxxxx Xxxxxx S.r.l.
By
Xxxxxxxx Xxxxxxxxx
EXHIBIT 3
AGREEMENT
by and between
IAO - Industrie Riunite S.p.A. having registered office in Beinasco ( To),
Xxxxxx Xxxxxx 00, social capital Lit. 47,500,000,000 registered at the Turin
Court n. 4770/86 Fiscal Code 05163550014 represented by its President Xxxxxxxx
Xxxxxxxxx (hereinafter referred to as IAO); and XXXXXXX PLASTURGIA S.r.l.,
having registered office in Beinasco. Xxxxxx Xxxxxx 00, registered at the Turin
Court n. 516615/1996 Fiscal Code 07102360018 represented by Xxxxx Xxxxx, its
attorney in fact pursuant to a special power of attorney by means of Notaio
Marocco deed dated June 28, 1996 (hereinafter referred to as GP)
WHEREAS
- IAO is the owner of the trademark name XXXXXXX described in Exhibit 3 and duly
registered (hereinafter referred to as the TRADEMARK); - GP is considering the
purchase of the business, on a going concern basis, carried out by XXXXXXX
COMPLEMENTI PLASTICI S.p.A., an Italian company controlled by IAO; - as a matter
of fact GP already exploits without any consideration the TRADEMARK with the
consent of IAO and now desires to purchase the ownership of the XXXXXXX
trademark name, and IAO willing to sell such name; NOW THEREFORE, IT IS HEREBY
AGREED AS FOLLOWS
1. PREAMBLE AND EXHIBITS
1.1 The preamble and exhibits are an essential part of this agreement.
2. OBJECT
2.1 IAO sells and transfers to G.P. who accepts the full ownership of the
TRADEMARK described in detail - also in respect of the existing
intellectual property registrations - in the Exhibit 3 without
restrictions and complete of all the rights and obligations pertinent
to the same.
3. CONSIDERATION
3.1 As consideration for the transfer of the TRADEMARK GP will pay to IAO
the amount of one billion Lira (Lit. 1,000,000,000).
3.2 The payment of the above specified consideration is made simultaneously
with the execution of this agreement. IAO acknowledges the receipt of
the consideration and deliver to GP the relevant invoice.
4. REPRESENTATIONS OF IAO
4.1 In addition to the contents of the Representations and Warranties
Agreement attached as Exhibit 2 to the Master Agreement executed
between, among others, the parties the same date hereof, IAO in
connection with purchase contemplated herein, represents and
states to have all right to use, sell and license the TRADEMARK. In
particular the past use of the TRADEMARK by IAO and/or by GCP S.p.A.
(or by any other entity being party of IAO's Group) has been conducted
in due form and with the consent of all interested parties. IAO
represents and state as well that there is not now asserted any charge,
complaint or claim alleging that any of the entities using the
TRADEMARK has infringed upon or has misappropriated any third party
rights. IAO represents and state that no third party has interfered
with, infringed upon or misappropriated any right on the TRADEMARK.
5. OBLIGATIONS OF IAO
5.1 As of the execution of the present Agreement, IAO will immediately
cease to use directly and/or indirectly under whatever firm - the
TRADEMARK.
5.2 The parties expressly agree that G.P. maintains since the date hereof
the possibility to fully exploit as the owner the TRADEMARK,
irrespective to the time necessary to fulfil the steps referred to the
amendments in the registration at the Italian or foreign public
offices.
6. CONDITION
6.1 Since the transfer of the TRADEMARK is to be considered as an element
of the global transfer of GCP's business as a going concern as provided
in the deed of sale attached as Exhibit 4 to the Master Agreement, the
effectiveness of this agreement will be subject to the condition of the
actual transfer of GCP's business to GP. If such a transfer is not
fulfilled by July 2, 1996, the present agreement will be null and void
as of the date hereof.
7. COSTS AND TAXES
7.1 All procedures and expenses necessary to obtain the registration of
this Agreement at the relevant Italian or foreign offices are
exclusively borne by GP.
7.2 Since the transfer is subject to VAT, this Agreement has to be
registered "in misura fissa" in accordance with Article 40 D.P.R.
26/4/1986 n.131.
7.3 The parties ask to the Notary to keep this Agreement into his files.
8. ARBITRATION
Any dispute arising between the parties in connection with the
validity, termination, interpretation or performance of this Agreement
shall be submitted to the decision of a Panel of three (3) Arbitrators,
which shall decide in accordance with the law ("in via rituale e
secondo diritto"). The party wishing to submit to Arbitration shall
appoint its Arbitrator and give notice to the other party of its
appointment. Within fifteen (15) days of receipt of the notice, the
other party shall appoint its Arbitrator and shall give notice to the
first party of its appointment. Within fifteen (15) days of the
appointment of the second Arbitrator, the two Arbitrators so appointed
shall agree upon the appointment of a third Arbitrator, who will be the
President of the Arbitration Panel. If no agreement is
reached, the third Arbitrator shall be appointed, upon application of
the most diligent party, by the President of the Milan Court of Appeal.
Similarly, if the party to whom the notice of the appointment of an
Arbitrator has been given does not, in turn, appoint its Arbitrator,
said Arbitrator shall also be appointed, together with the third
Arbitrator, by the President of the Milan Court of Appeal, which will
also provide for the substitution of any Arbitrator who dies or
resigns. Arbitration shall be conducted in the Italian language and
take place in Milan.
IAO GP
- Exhibit A -
XXXXXXX TRADEMARK NAME REGISTRATIONS
- Italian Trademark "XXXXXXX", Granted to IAO, classes
00-00-00-00, dep. 10.18.72.Expiration date 9.07.2002.
- International Trademark "XXXXXXX",granted to IAO, classes
12-17, valid in : Austria, Benelux,Switzerland, Croatia,
Czech Republic, Egypt, Spain, Liechtenstein, France, RTF,
Morocco, Monaco, Portugal, Romania, Slovenia, X. Xxxxxx,
Slovakia, Hungary, Yugoslavia; dep. 10.18.72, expiration
date 10.18.2012.
EXHIBIT 4
DEED OF SALE OF BUSINESS ON A GOING CONCERN BASIS
Between
- Xxxxxxx Componenti Plastici SpA, with registered office at
Xxxxxx Xxxxxx 00, 00000 Xxxxxxxx, Xxxxxx, represented by Xx.
Xxxxxxxx Xxxxxxxxx, (hereinafter the "Seller")
and
- Xxxxxxx Plasturgia Srl, with registered office at Xxxxxx
Xxxxxx 00, 00000 Xxxxxxxx, Xxxxxx, represented by Xx.
Xxxxxxx X. Xxxxxxxxxxx, its sole director (hereinafter the
"Purchaser")
* * *
DEFINITIONS
In this Agreement and its Exhibits, the words and expressions which
follow will have the following meanings:
A. "Business": the business of the Seller conducted in
Rivalta, Nichelino, Xxxxxx, Copiano, San Xxxxxxx and
Castello, Italy consisting in the design , manufacture and
sale of steering wheels, instrument panels, consoles,
interior trims, bumpers and exterior trims and other
automotive parts and accessories;
B. "Liabilities"
(i) liabilities to Employees starting from the date
hereof for severance pay ("TFR"), unpaid salaries,
accruals and holidays not taken, other personnel
liabilities as to "Tredicesima" and
"Quattordicesima", matured debt towards INAIL all of
which are listed in the Financial Statement as of May
31, 1996 attached as Exhibit "A" hereto;
(ii) the principal and interest accrued to date due to
Cassa di Risparmio di Parma e Piacenta SpA pursuant
to Loan Agreement entered into on September 12, 1994,
as listed in Exhibit "A" hereto;
(iii) the sum representing the balance due on the purchase
of machinery, title to which subject to a reservation
of title, pursuant to the "Xxxxxxxx" Law, as well as
the deferred credit of the contributions as listed in
Exhibit "A" hereto;
(iv) the value for "fondo rischi e rinnovamento impianti"
as agreed and shown in Exhibit A hereto.
C. Assets
(i) "Intellectual Property": the know-how used in the
Business, as well as the design patents, patents, the value
of which is shown under the item "Brevetti" in the Exhibit
"A" hereto;
(ii) "Fixed Assets": the items of fixed assets such as
machinery, equipment, tools, molds and tooling, vehicles and
other chattels used in the Business as at April 1, 1996 the
value of which is shown in Exhibit "A" hereto;
(iii) "Inventory": the inventory of raw materials, work in
process and finished products, the value of which is shown
in Exhibit "A" hereto;
(iv) "Goodwill" referred to the Business the value of which
is shown in Exhibit "A" hereto;
(v) the other items of the assets listed together with the
value relevant to in Exhibit "A" hereto.
D. "Agreements": the on-going contracts, leases and
relationships entered into by Seller which relate to the
Business;
F. "Employee Agreements": employment agreements with the
Employees;
G. "Employees": the employees of the Seller at the date hereof as
recorded in the registers as provided by the applicable law;
WHEREAS
- Seller desires to sell and Purchaser desires to acquire the Business. Now,
therefore, it is
agreed as follows:
1. SALE OF PART OF BUSINESS
1.1 The Seller hereby sells the Business to the Purchaser on the terms and
conditions herein set forth. The Purchaser shall not succeed in any
obligation, debt, account payable or receivable, asset or liability of
Seller which is not specifically transferred to the Purchaser to this
Agreement and listed in Exhibits "A" hereto.
2. PRICE AND PAYMENT
2.1 The price for the purchase and the sale has been agreed to in
accordance with the Financial Statement as of May 31, 1996 attached as
Exhibit "A". The price shall be adjusted in accordance with the results
of the audit of the adjustment categories set forth in 2.3 below.
2.2 All purchase price adjustments shall be completed no later than October
31,1996 and payments for the adjustments shall be made not later than
November 15,1996 or fifteen days after mutual agreements on the
adjustments if sooner than October 31, 1996.
2.3 Adjustments shall apply to the following:
A. INVENTORY to be determined in accordance with U.S.
Generally Accepted Accounting Principles;
B. FIXED ASSETS additions for the month of June 1996 the
value to be determined at cost;
C. PERSONNEL LIABILITIES (TFR, vacation, holiday) through
June 30, 1996 as determined in accordance with Italian law;
D. ACCRUALS AND PREPAYMENT OF INTERESTS on the assumed
LOAN and XXXXXXXX LOANS through June 30, 1996: the value to
be accrued in accordance with U.S. Generally Accepted
Accounting Principles.
E. OTHER ASSETS totaling one billion nine hundred and
twenty-nine million ninety one thousand two hundred and
fifty-seven Lire (Lit.1,929,091,257) for employee
advances, supplier advances and prepaid expenses as
listed in Exhibit "A": will be determined in accordance
with U.S. Generally Accepted Accounting Principles.
3 REPRESENTATIONS AND WARRANTIES
The Seller represents and warrants to the Purchaser as follows:
3.1 Assets and Liabilities
The fixed Assets are in good condition, unencumbered (apart for the
Xxxxxxxx liens) and operate satisfactorily for the purpose to which
they are used in the Business and there are no liabilities, except for
the Liabilities.
3.2 Inventory
The inventory of Products is in good and sellable or useable condition,
valued on a FIFO basis, taking into account slow moving, obsolete or
unusable or unsaleable products, raw materials, parts or work in
progress. Tooling to be sold to customers shall be valued in accordance
with the stage of completion method.
3.3 Agreements
The Agreements are in full force and effect and have been duly
performed by the Seller up to the date hereof.
3.4 Employees
There are no employees of the Business except for the Employees as
identified in the definition Employees hereinabove. The levels of
employment and salaries of the Employees are in accordance with the
duties actually performed and are in accordance with the provisions of
the applicable national collective labor agreement. The Seller has duly
performed all its obligations to the Employees for salary, social
contributions, withholdings and other obligations relating to their
employment up to the date hereof and there are no other liabilities to
Employees except the liabilities listed in Exhibit "A".
3.5 Tax and Social Security Compliance
The Seller has duly performed all its obligations of a tax and Social
Security nature. The Seller has not received notice of assessments for
taxes due nor are there pending before any judicial or administrative
authority actions or proceedings relating to its tax or social security
obligations.
3.6 Intellectual Property
The Seller has full title to the patents and the know-how as referred
in the definition "Intellectual Property" hereinabove and their use and
transfer does not violate the rights of any third party.
4. Purchaser undertakes to use its best efforts to obtain within 120 days
hereof the consent of the Unions and of each of the Employees as to the
substitution of the Purchaser for the Seller as the sole responsible
for the payment of TFR to the Employees. In the event such a consent is
not obtained for all or part of the Employees, the Purchaser undertakes
to keep harmless the Seller.
5. NON COMPETITION
5.1 The Seller undertakes, pursuant to Art. 1381 C.C., not to compete,
directly or through companies which are under its control or common
control with its shareholders, for a period of 5 years from the date
hereof with the Business.
6. GENERAL PROVISIONS
6.1 Purchaser shall have access, through its duly authorized qualified
representatives to all of the Seller's books of account, payroll and
sales records, stock and other information relating to customers and
suppliers, correspondence, files, whether on paper or in other form,
which relate to the Business.
6.2 No modification of this agreement shall be valid unless it shall be in
writing.
6.3 All notices provided for or permitted by this agreement shall be given
-in addition to registered offices of the GCP and GP- also to the
addresses hereafter set forth or to the addresses which may be
hereafter given by notice in writing. Notices shall be sent to Xxxxxxx
X. Xxxxxxxxxxx Xx., Breed Technologies Inc., 0000 Xxx Xxxxx Xxxxxxx,
Xxxxxxxx, Xxxxxxx 00000-0000, fax 941 - 0000000 and to Xxxxx X. Xxxxx,
Esq., Pavia e Ansaldo, Xxx xxxx'Xxxxxxxxxx 0, 00000 Xxxxx, Xxxxx.
6.4 All costs and expenses further hereto (including stamp tax,
registration tax [principal and supplemental] and notarial fees)
relating to the execution of this agreement shall be borne by the
Purchaser.
6.5 The civil and tax effects of this sale shall be from 00:01 hours
on July 1, 1996.
7. ARBITRATION 7.1 Any dispute arising between the parties in
connection with the validity, termination, interpretation or
performance of this agreement shall be submitted to the decision of a
Panel of three (3) Arbitrators, which shall decide in accordance with
the law ("in via rituale e secondo diritto"). The party wishing to
submit to arbitration shall appoint its arbitrator and give notice to
the other party of its appointment. Within fifteen (15) days of
receipt of this notice, the other party shall appoint its arbitrator
and shall give notice to the first party of its appointment.
Within fifteen (15) days of the appointment of the second arbitrator,
the two arbitrators so appointed shall agree upon the appointment of a
third arbitrator. If no agreement is reached, the third arbitrator
shall be appointed, upon application of the most diligent party, by the
president of the Milan Court of Appeal. Similarly, if the party to whom
the notice of the appointment of an arbitrator has been given does not,
in turn, appoint its arbitrator; said arbitrator shall also be
appointed together with the third arbitrator by the President of the
Milan Court of Appeal, which will also provide for the substitution of
any arbitrator who dies, or resigns. Arbitration shall be conducted in
the Italian language and take place in Milan.
Turin, June 28, 1996
Xxxxxxx Componenti Plastici S.p.A. Xxxxxxx Plasturgia S.r.l.
By By
EXHIBIT 6
Deed of Transfer - BREED EUROPEAN HOLDINGS Ltd., a U.K. Company
represented by its Director Xxxxxxx X. Xxxxxxxxxxx Xx. (hereinafter
referred to as BREED) on the one part and XXXXXXX COMPONENTI PLASTICI
S.p.A., an Italian company represented by Xx. Xxxxxxxx Xxxxxxxxx
(hereinafter referred to as GCP) on the other WHEREAS -GCP is the
owner of 95,55% of the issued and outstanding capital of FAS S.p.A., a
joint stock company incorporated and existing under laws of Italy,
with registered office at Ferentino (Frosinone) having an issued and
outstanding paid in capital of three billion three hundred and
sixty-seven million Lire(Lit. 3,367,000,000), represented by three
million three hundred thousand shares each of them of a par value of
one thousand Lire (Lit. 1,000)(the Shares), (hereinafter referred to
as FAS)
Now , therefore the parties hereby agree
1. GCP sells to BREED the Shares of FAS and namely:
SHAREHOLDER SHARES %OF CAPITAL NOMINAL VALUE
BREED 3,217,000 95,55% 3,217,000,000
The SHARES are transferred today in Turin at the offices of Casa Risparmio Parma
e Piacenza, through execution of the endorsement on the Shares certificates.
2.The SHARES are transferred at a price of ten billion, nine hundred
eighty-seven million one hundred thousand Lire (Lit. 10,987,100,000). The price
will be paid to the SELLER by BREED the date hereof of this Deed of Transfer at
the pro-rata of their participation.
Turin, July 1996
BREED EUROPEAN HOLDINGS LTD.
XXXXXXX COMPONENTI PLASTICI S.p.A.
EXHIBIT 6
Deed of Transfer - BREED EUROPEAN HOLDINGS Ltd., a U.K. Company
represented by its Director Xxxxxxx X. Xxxxxxxxxxx Xx. (hereinafter
referred to as BREED) -BREED TECHNOLOGIES Inc., a U.S. company
represented by it's Executive Vice-President Xxxxxxx X. Xxxxxxxxxxx
Xx. (hereinafter referred to as BTI) on the one part and XXXXXX
XXXXXXXXX, an Italian citizen represented by his attorney-in-fact Xx.
Xxxxxxx Xxxxx (hereinafter referred to as EC) on the other part
WHEREAS -EC is the owner of 4,45% of the issued and outstanding
capital of FAS S.p.A., a joint stock company incorporated and existing
under laws of Italy, with registered office at Ferentino having an
issued and outstanding paid in capital of three billion three hundred
and sixty-seven million Lire(Lit. 3,367,000,000), represented by three
million three hundred thousand shares each of them of a par value of
one thousand Lire (Lit. 1,000)(the Shares), (hereinafter referred to
as FAS)
Now , therefore the parties hereby agree
1. XX xxxxx to the PURCHASER the Shares of FAS and namely:
SHAREHOLDER SHARES %OF CAPITAL NOMINAL VALUE
BREED 82660 2,45% 82,660,000
BTI 67340 2% 67,340,000
The SHARES are transferred today at the offices of Notary A. Morocco, through
execution of the endorsement on the Shares certificates.
2.The SHARES are transferred at a price of five hundred twelve million, nine
hundred thousand Lire (Lit. 512,900,000). The price is paid to the SELLER by
BREED and BTI the date hereof at the pro-rata of their participation.
Turin, 1 July, 1996
BREED EUROPEAN HOLDINGS LTD.
BREED TECHNOLOGIES INC
XXXXXX XXXXXXXXX
EXHIBIT 6
Deed of Transfer - BREED EUROPEAN HOLDINGS Ltd., a U.K. Company
represented by its Director Xxxxxxx X. Xxxxxxxxxxx Xx. (hereinafter
referred to as BREED) -BREED TECHNOLOGIES Inc., a U.S. company
represented by it's Executive Vice-President Xxxxxxx X. Xxxxxxxxxxx
Xx. (hereinafter referred to as BTI) and jointly referred to as
PURCHASER on the one part and IAO Industrie Riunite S.p.A., an Italian
company represented by Xx. Xxxxxxxx Xxxxxxxxx (hereinafter referred to
as IAO) on the other WHEREAS - the seller is the owner of 100% of the
issued and outstanding capital of IRON SUD S.p.A., a joint stock
company incorporated and existing under the laws of Italy, with
registered office at Limatola having an issued and outstanding paid in
capital of two hundred billion and three hundred million Lire(Lit.
2,300,000,000), represented by two hundred and thirty thousand shares
each of them of a par value of ten thousand Lire (Lit. 10,000)(the
Shares), (hereinafter referred to as IRON)
Now , therefore the parties hereby agree
1. IAO sells to the PURCHASER the Shares of IRON and namely:
SHAREHOLDER SHARES %OF CAPITAL NOMINAL VALUE
BREED 225,400 98% 2,254,000,000
BTI 4,600 2% 46,000,000
The SHARES are transferred today at the offices of Notary A. Morocco, through
execution of the endorsement on the Shares certificates.
2.The SHARES are transferred at a price of three billion four hundred million
Lire (Lit. 3,400,000,000). The price will be paid to the SELLER by BREED and by
BTI the date hereof at the pro-rata of their participation.
Turin, 1 July, 1996
BREED EUROPEAN HOLDINGS Ltd.
BREED TECHNOLOGIES Inc.
IAO Industrie Riunite S.p.A.
EXHIBIT 7
Deed of Transfer - BREED EUROPEAN HOLDINGS Ltd., a U.K. Company represented by
its Director Xxxxxxx X. Xxxxxxxxxxx Xx. (hereinafter referred to as BREED)
-BREED TECHNOLOGIES Inc., a U.S. company represented by it's Executive
Vice-President Xxxxxxx X. Xxxxxxxxxxx Xx. (hereinafter referred to as BTI) and
jointly referred to as PURCHASER on the one part and GRUPPO PLASTICO INDUTRIALE
S.r.l., an Italian company represented by Xx. Xxxxxxxx Xxxxxxxx (hereinafter
referred to as GPI) on the other WHEREAS - GPI is the owner of 100% of the
issued and outstanding capital of AG INTERNATIONAL S.r.l., a limited liability
company incorporated and existing under the laws of Italy, with registered
office at Torino, having an issued and outstanding paid in capital of eleven
billion Lire(Lit. 11,000,000,000), represented by one quota the par value of
which is Lit......(the Quota), (hereinafter referred to as AG INTERNATIONAL)
Now , therefore the parties hereby agree
1. GPI sells to the PURCHASER the quota of AG INTERNATIONAL and namely:
QUOTA HOLDER QUOTA %OF CAPITAL NOMINAL VALUE
BREED 1 98% 10,780,000,000
BTI 2 2% 220,000,000
The QUOTA is transferred today at the offices of Notary A. Morocco, through
execution of the Deed of Transfer, which will be authenticated by the Notary and
filed in accordance with and for the purpose of Art.2479 of the Civil Code (as
modified by Art.1 of Law No.310 of August 12,1993). The entry in the Register of
quotaholders will take place within the terms set out in para.3 of Art.2479 of
the Civil Code (as modified by Art.1 of Law No. 310 of August 12,1993).
2.The QUOTA will be transferred at a price of fifteen billion five hundred
million Lire (Lit. 15,500,000,000). The price will be paid to the SELLER by
BREED and BTI the date hereof at the pro-rata of their participation.
3.Every cost and expense relating to the present Deed of Transfer, including
stamp duties and fees relating to registration, are for the sole account of
PURCHASER.
Turin, 1 July, 1996 BREED EUROPEAN HOLDINGS Ltd.
BREED TECHNOLOGIES Inc
GRUPO PLASTICO INDUSTRIALE S.r.l.
EXHIBIT 7
Deed of Transfer
- BREED EUROPEAN HOLDINGS Ltd., a U.K. Company represented by its Director
Xxxxxxx X.Xxxxxxxxxxx Xx. (hereinafter referred to as BREED)
on the one part
and
XXXXXXX COMPONENTI PLASTICI S.p.A., an Italian company represented by Xxxxxxxx
Xxxxxxxxx (hereinafter referred to as GCP) on the other
WHEREAS
- GCP is the owner of 51% of the issued and outstanding capital of ARAS S.r.l.,a
limited liability company incorporated and existing under the laws of Italy,
with registered office at Giaveno having an issued and outstanding paid in
capital of ninety million Lire(Lit. 90,000,000), represented by one quota the
par value of which is Lit......(the Quota) (hereinafter referred to as ARAS)
Now , therefore the parties hereby agree
1. GCP sells to the PURCHASER the quota of ARAS and namely:
QUOTA HOLDER QUOTA %OF CAPITAL NOMINAL VALUE
BREED 1 51% 45,900,000
The QUOTA is transferred today at the offices of Notary A. Morocco, through
execution of the Deed of Transfer, which will be authenticated by the Notary and
filed in accordance with and for the purpose of Art.2479 of the Civil Code (as
modified by Art.1 of Law No. 310 of August 12,1993). The entry in the Register
of quota holders will take place within the terms set out in para. 3 of Art.2479
of the Civil Code (as modified by Art.1 of Law No. 310 of August 12, 1993).
2.The QUOTA will be transferred at a price of one hundred million Lire (Lit.
100,000,000). The price will be paid to the SELLER by BREED the date hereof.
3.Every cost and expense relating to the present Deed of Transfer, including
stamp duties and fees relating to registration, are for the sole account of
BREED.
Turin, 1 July, 1996
BREED EUROPEAN HOLDINGS Ltd.
XXXXXXX COMPONENTI PLASTICI S.p.A.
EXHIBIT 7
Deed of Transfer
-BREED TECHNOLOGIES Inc., a U.S. company represented by its Executive
Vice-President Xxxxxxx X. Xxxxxxxxxxx Xx. (hereinafter referred to as BTI)
on the one part
and
CARIFIN S.p.A., an Italian company represented by Xxxxxxxx Xxxxxxxxx
(hereinafter referred to as CARIFIN) on the other
WHEREAS
- CARIFIN is the owner of 1% of the issued and outstanding capital of AUTO AVIO
S.r.l., a limited liability company incorporated and existing under the laws of
Italy, with registered office at Guardamiglio having an issued and outstanding
paid in capital of ninety million Lire(Lit. 90,000,000), represented by one
quota the par value of which is Lit......(the Quota) (hereinafter referred to as
AUTO AVIO)
Now , therefore the parties hereby agree
1. CARIFIN sells to the PURCHASER the quota of AUTO AVIO and namely:
QUOTA HOLDER QUOTA %OF CAPITAL NOMINAL VALUE
BTI 1 1% 900,000
The QUOTA is transferred today at the offices of Notary A. Morocco, through
execution of the Deed of Transfer, which will be authenticated by the Notary and
filed in accordance with and for the purpose of Art.2479 of the Civil Code (as
modified by Art.1 of Law No. 310 of August 12,1993). The entry in the Register
of quotaholders will take place within the terms set out in para. 3 of Art.2479
of the Civil Code (as modified by Art.1 of Law No. 310 of August 12, 1993).
2.The QUOTA will be transferred at a price of one million Lire
(Lit. 1,000,000). The price will be paid to the SELLER by BTI the date hereof.
3.Every cost and expense relating to the present Deed of Transfer, including
stamp duties and fees relating to registration, are for the sole account of
BREED.
Turin, 1 July, 1996
BREED TECHNOLOGIES Inc.
CARIFIN S.p.A.
EXHIBIT 7
Deed of Transfer
- BREED EUROPEAN HOLDINGS Ltd., a U.K. Company represented by its Director
Xxxxxxx X.Xxxxxxxxxxx Xx. (hereinafter referred to as BREED)
-BREED TECHNOLOGIES Inc., a U.S. company represented by it's Executive
Vice-PresidentCharles X. Xxxxxxxxxxx Xx. (hereinafter referred to as BTI)
on the one part
and
XXXXXXX COMPONENTI PLASTICI S.p.A., an Italian company represented by Xxxxxxxx
Xxxxxxxxx. (hereinafter referred to as GCP) on the other
WHEREAS
- GCP is the owner of 99% of the issued and outstanding capital of AUTO AVIO
S.r.l., a limited liability company incorporated and existing under the laws of
Italy, with registered office at Guardamiglio having an issued and outstanding
paid in capital of ninety million Lire(Lit. 90,000,000), represented by one
quota the par value of which is Lit......(the Quota) (hereinafter referred to as
AUTO AVIO)
Now , therefore the parties hereby agree
1. GCP sells to the PURCHASER the quota of AUTO AVIO and namely:
QUOTA HOLDER QUOTA %OF CAPITAL NOMINAL VALUE
BREED 1 98% 88,200,000
BTI 1 1% 900,000
The QUOTA is transferred today at the offices of Notary A. Morocco, through
execution of the Deed of Transfer, which will be authenticated by the Notary and
filed in accordance with and for the purpose of Art.2479 of the Civil Code (as
modified by Art.1 of Law No. 310 of August 12,1993). The entry in the Register
of quotaholders will take place within the terms set out in para. 3 of Art.2479
of the Civil Code (as modified by Art.1 of Law No. 310 of August 12, 1993).
2.The QUOTA will be transferred at a price of ninety-nine million Lire
(Lit. 99,000,000). The price will be paid to the SELLER by BREED and BTI the
date hereof at the pro-rata of their participation.
3.Every cost and expense relating to the present Deed of Transfer, including
stamp duties and fees relating to registration, are for the sole account of
PURCHASER.
Turin, 1 July, 1996 BREED EUROPEAN HOLDINGS Ltd.
BREED TECHNOLOGIES Inc.
XXXXXXX COMPONENTI PLASTICI S.p.A.
EXHIBIT 7
Deed of Transfer
- BREED EUROPEAN HOLDINGS Ltd., a U.K. Company represented by its Director
Xxxxxxx X.Xxxxxxxxxxx Xx. (hereinafter referred to as BREED)
-BREED TECHNOLOGIES INC., a U.S. company represented by it's Executive
Vice-President Xxxxxxx X. Xxxxxxxxxxx Xx. (hereinafter referred to as BTI)
and jointly referred to as the PURCHASER on the one part
and
XXXXXXX COMPONENTI PLASTICI S.p.A., an Italian company represented by Xxxxxxxx
Xxxxxxxxx. (hereinafter referred to as GCP) on the other
WHEREAS
- GCP is the owner of 100% of the issued and outstanding capital of APCO S.r.l.,
a limited liability company incorporated and existing under the laws of Italy,
with registered office at ........ having an issued and outstanding paid in
capital of eight billion one hundred million Lire(Lit. 8,100,000,000),
represented by one quota the par value of which is Lit......(the Quota)
(hereinafter referred to as APCO)
Now , therefore the parties hereby agree
1. GCP sells to the PURCHASER the quota of APCO and namely:
QUOTA HOLDER QUOTA %OF CAPITAL NOMINAL VALUE
BREED 1 98% 7,938,000,000
BTI 2 2% 162,000,000
The QUOTA is transferred today at the offices of Notary A. Morocco, through
execution of the Deed of Transfer, which will be authenticated by the Notary and
filed in accordance with and for the purpose of Art.2479 of the Civil Code (as
modified by Art.1 of Law No. 310 of August 12,1993). The entry in the Register
of quota holders will take place within the terms set out in para. 3 of Art.2479
of the Civil Code (as modified by Art.1 of Law No. 310 of August 12, 1993).
2.The QUOTA will be transferred at a price of sixteen billion five hundred
million Lire (Lit. 16,500,000,000). The price will be paid to the SELLER by
BREED and by BTI the date hereof at the pro-rata of their participation.
3.Every cost and expense relating to the present Deed of Transfer, including
stamp duties and fees relating to registration, are for the sole account of
PURCHASER.
Turin, 1 July, 1996
BREED EUROPEAN HOLDINGS Ltd.
BREED TECHNOLOGIES Inc.
XXXXXXX COMPONENTI PLASTICI S.p.A.
CONSULTING SERVICES AGREEMENT
by and between
- IAO INDUSTRIE RIUNITE S.p.A., an Italian corporation having registered office
at Xxxxxx Xxxxxx 00, Xxxxxxxx represented by Xx. Xxxxxxxx Xxxxxxxxx (hereinafter
referred to as IAO)
- on the one part
- XXXXXXX PLASTURGIA S.r.l., an Italian limited liability company having
registered office at Xxxxxx Xxxxxx 00, Xxxxxxxx represented by Xx. Xxxxxxx X.
Xxxxxxxxxxx Xx. (hereinafter referred to as GP); also on behalf of :
- FAS S.p.A., an Italian corporation having registered office at via Asse
Attrezzato 216 Ferentino (Frosinone), (hereinafter referred to as FAS);
- AG INTERNATIONAL S.r.l., an Italian limited liability company having
registered office at via Susa 35 Torino (hereinafter referred to as AG);
- X.X.XX S.r.l., an Italian corporation having registered office at via
della Riserva I tronco Anagni (Frosinone), (hereinafter referred to as X.X.XX);
- on the other part
WHEREAS
- IAO and BREED TECHNOLOGIES INC., directly or through different entities
parties of their respective group, have entered into agreements
providing for the transfer from IAO Group to BREED TECHNOLOGIES Group
of the Business carried out in the field of automotive parts supply; in
connection with the above referred agreements arises the need for the
Purchasers to obtain certain consulting services from the Sellers;
Now therefore, the parties agree as follows:
1.OBJECT
1.1 IAO hereby undertakes to supply, directly or through a company being
party of IAO Group designated by IAO, to XXXXXXX PLASTURGIA, FAS, AG, X.X.XX the
following consulting services:
-management services
-technical advice
-assistance in negotiations with major customers
-advice on matters of taxation
1.2. The above mentioned consulting services will be rendered upon request
of GP,FAS, AG, X.X.XX., or any of them. In any event it is expressly
agreed that neither IAO nor its designees shall have authority to act
on behalf of GP, FAS, AG, X.X.XX., - or of any of them - IAO agrees
that it will not hold itself out to any third party as having any such
authority except where such authority has been granted in writing.
2.TERM
2.1 This agreement shall be effective starting from July 1, 1996 and will
last for one year.
3.FEES AND COSTS
3.1 In consideration of the services to be rendered by IAO or by its
designees, GP - directly or through FAS, AG, X.X.XX, shall pay to IAO a
fee in the fixed amount of three billion eight hundred million Lire
(Lit.3,800,000,000). Such amount will be payable in one installment at
the date of expiration of the present agreement upon issuance of the
relevant invoice/s by IAO. IAO will specify in the invoice the
allocation of the payment in respect of the services rendered to GP,
FAS, AG, X.X.XX..
4.CONFIDENTIALITY
4.1 IAO and/or its designees shall not at any time whether during the
continuance of this agreement or at any time thereafter divulge to any
third party whatsoever, except as insofar as may be necessary to do so
in performance of its duties hereunder, the matters of a confidential
nature which it receives by reason of the services rendered hereunder.
5.ARBITRATION
5.1 Any dispute arising between the parties in connection with the
validity, termination, interpretation or performance of this agreement
shall be submitted to the decision of a Panel of three (3) Arbitrators,
which shall decide in accordance with the law ("in via rituale e
secondo diritto"). To the ends of Arbitration, IAO and/or its designees
will constitute a sole party as will GP, FAS, AG, X.X.XX. The party
wishing to submit to arbitration shall appoint its arbitrator and give
notice to the other party of its appointment.Within fifteen (15) days
of receipt of this notice, the other party shall appoint its arbitrator
and shall give notice to the first party of its appointment. Within
fifteen (15) days of the appointment of the second arbitrator, the two
arbitrators so appointed shall agree upon the appointment of a third
arbitrator. If no agreement is reached , the third arbitrator shall be
appointed , upon application of the most diligent party, by the
president of the Milan Court of Appeal. Similarly, if the party to whom
the notice of the appointment of an arbitrator has been given does not,
in turn, appoint its arbitrator, said arbitrator shall also be
appointed together with the third arbitrator by the President of the
Milan Court of Appeal, which will also provide for the substitution of
any arbitrator who dies or resigns. Arbitration shall be conducted in
the Italian language and take place in Milan.
IAO INDUSTRIE RIUNITE S.p.A.
XXXXXXX PLASTURGIA S.r.l.
By
FAS S.p.A.
By
AG INTERNATIONAL S.r.l.
By
X.X.XX. S.r.l.
By
, 1996
BREED TECHNOLOGIES INC.
We refer to the transaction under which through several
agreements our company, directly or through entities being
party of its Group, has transferred to your Group the business
carried out by XXXXXXX COMPONENTI PLASTICI S.p.A.
By means of this letter we irrevocably confirm our undertaking
to allow XXXXXXX PLASTURGIA S.r.l., transferee of the business
previously carried out by XXXXXXX COMPONENTI PLASTICI, the use
free of charge of the land and building located respectively
in San Xxxxxxx, Via Chivasso, 120 and in Xxxxxx, Xxx
Xxxxxxxxx, 00 as previously used by XXXXXXX COMPONENTI
PLASTICI.
Such free use, for which no consideration has to be paid, will
last until the due execution of the notarial deed of transfer
for the real estates located in San Xxxxxxx and in Xxxxxx to
be transferred and paid promptly upon IAO request.
IAO INDUSTRIE RIUNITE S.p.A.
July 1, 1996
IAO INDUSTRIE RIUNITE X.x.X.
Xxxxxx Xxxxxx, 00'
Xxxxxxxx
The undersigned Xxxxxxx X. Xxxxxxxxxxx as Executive Vice-President of Breed
Technologies Inc. as well as Director of Breed European Holdings Limited taking
into consideration as well the Certificate of Authority issued on June 21, 1996,
undertakes to transfer or cause to be transferred within one year from the date
of this letter the real property located in Rome owned by FAS to IAO INDUTRIE
RIUNITE S.p.A. against payment of three billion eight hundred million Lire (Lit.
3,800,000,000). Such consideration shall be in complete satisfaction of the
payment obligations under the Consulting Services Agreement of even date
herewith. Xxxxxxx X. Xxxxxxxxxxx Xx. on behalf of BREED TECHNOLOGIES Inc. and
BREED EUROPEAN HOLDINGS Ltd. does hereby waive any right to dispute the value of
the services to be provided under said Consulting Services Agreement of even
date. IAO undertakes to purchase the above mentioned real property and pay three
billion eight hundred million Lire (Lit. 3,800,000,000) as and for the purchase
price.
Xxxxxxx X. Xxxxxxxxxxx
Agreed
IAO Industrie Riunite S.p.A.
Turin, July 1, 1996
The undersigned Xxxxxxxx Xxxxxxxxx and Xxxxxxx X. Xxxxxxxxxxx
Xx. in connection with the Master Agreement and relevant
exhibits thereto entered into on July 1, 1996 between BREED
TECHNOLOGIES Inc. (directly of through entities of it's group)
and IAO (directly or through entities of it's group), hereby
acknowledge that the exhibits to the "Representations and
Warranties Agreement" (exhibit 2 to the "Master Agreement")
are not yet complete. The parties undertake to complete the
exhibits to the "Representations and Warranties Agreement"
before the end of the month of July 1996. The mentioned
exhibit shall be prepared by IAO GROUP, subject to the
agreement of BREED GROUP. In particular the undersigned
acknowledge that the exhibit to be prepared shall not disclose
new information which has a material adverse effect on the
value of the assets, business and companies concerned.
Xxxxxxxx Xxxxxxxxx Xxxxxxx X. Xxxxxxxxxxx Xx.
