ISSUE AND SUBSCRIPTION AGREEMENT
This issue and subscription agreement, made as of this 11th day of June 2002 by
and between:
1. Fiat S.p.A., a company incorporated under the laws of Italy, with corporate
seat at Turin and registered office at Xxx Xxxxx 000, 00000 Xxxxx and
Sicind S.p.A., a company incorporated under the laws of Italy, with
corporate seat at Turin and registered office at Xxxxx Xxxxxxxx 000 X,
00000 Xxxxx, together hereinafter called the "Subscriber"; and
2. CNH Global N.V., a company limited by shares, incorporated under the laws
of the Netherlands, with corporate seat at Amsterdam and registered office
at World Trade Centre Amsterdam Airport, Xxxxxxxx Xxxxxxxxx 000, 0000 XX
Xxxxxxxxx, hereinafter called the "Company";
WITNESSETH:
WHEREAS:
- the Board of Directors of the Company has determined that it is in the best
interests of the Company to increase its share capital by conducting an
underwritten public offering (the "Offering") at a price per share to be
agreed upon by the Company and the Underwriters at the conclusion of the
Roadshow for the public offering (the "Pricing Date") of up to 50,000,000
of the Company's common shares of par value Euro 0.45 per share (the "Offer
Shares") and through the issuance in a concurrent private placement (the
"Private Placement") to the Subscriber of up to 325,000,000 of the
Company's common shares of par value Euro 0.45 per share at the same price
agreed for the Offer Shares (the "Private Placement Shares") in
consideration of the retirement of U.S. $1,300,000,000 principal amount of
short term and long term debt owed by the Company to the Subscriber, the
amounts, maturities and interest rates of which have been negotiated and
agreed as an arm's length transaction by the Company's management with the
Subscriber (the "Transaction");
- the Board of Directors of the Company has received from Standard & Poor's
Corporate Value Consulting an opinion as of the Pricing Date that
the Transaction is fair, from a financial point of view, to the Company and
its shareholders other than the Subscriber as a related party transaction,
in form and substance satisfactory to the Audit Committee of the Board of
Directors of the Company;
- in respect of the issue of the Private Placement Shares, the Board of
Directors of the Company has prepared a Description of Contribution, as set
forth in the Annex A and Annex B attached hereto.
DO HEREBY AGREE AS FOLLOWS:
ISSUE AND SUBSCRIPTION
Article 1.
1.1 Effective as of the date which is three days after the Pricing Date (the
"Effective Date") the Company hereby issues and the Subscriber hereby
subscribes to the Private Placement Shares, being 325,000,000 (three
hundred twenty five million) of the Company's common shares of a par value
of Euro 0.45 per share at the price per share of U.S. $4.00 (four) of
which 240,500,000 [two hundred forty million five hundred thousand] shares
are issued to and subscribed by Fiat S.p.A. and 84,500,000 [eighty four
million five hundred thousand] shares are issued to and subscribed by
Sicind S.p.A.
1.2 The Company undertakes to register the Private Placement Shares in the
Company's register of shareholders.
CONTRIBUTION
Article 2.
2.1 The Subscriber hereby contributes and assigns, effective as of the
Effective Date, to the Company receivables owed by the Company to the
Subscriber in the aggregate amount of U.S. $1,300,000,000, of which U.S.
$962,000,000 as specified in Annex A hereto attached is assigned and
contributed by Fiat S.p.A. and U.S. $338,000,000 as specified in Annex B
hereto attached is assigned and contributed by Sicind S.p.A. (collectively
the "Receivables").
2.2 The Company hereby, effective as of the Effective Date, accepts the
Receivables in full satisfaction of Subscriber's obligation to pay up the
Private Placement Shares.
2.3 The amount by which the amount of the Receivables exceeds the par value of
the Private Placement Shares shall be carried to the Company's share
premium reserve.
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2.4 The parties undertake to co-operate in the completion of any formalities
under applicable law required to perfect the contribution and assignment to
the Company of the Receivables.
2.5 For the avoidance of doubt it is hereby explicitly agreed that the
Receivables will be extinguished by their contribution and assignment to
the Company and, to the extent required, the Company's obligation to repay
the Receivables is set off against the Subscribers' obligation to pay up
the Private Placement Shares.
GOVERNING LAW
Article 3.
3.1 This agreement shall be governed by and construed in accordance with the
laws of The Netherlands.
3.2 Any disputes arising out or in connection with this agreement shall be
submitted to the exclusive jurisdiction of the competent courts in
Amsterdam.
ANNEXES
The attachments Annex A and Annex B contain the description of the Receivables
to be exchanged for the Private Placement Shares.
IN WITNESS WHEREOF, this agreement has been signed and executed on the day first
above written.
Fiat S.p.A. Sicind S.p.A.
By: By:
/s/ Paolo Fresco /s/ Xxxxx Xxxx
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Paolo Fresco Xxxxx Xxxx
Chairman Chairman and Managing Director
CNH Global N.V.
By:
/s/ Paolo Monferino
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Paolo Monferino
President and Chief Executive Officer
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