Allegato (i)
SHARES SALE AND PURCHASE AGREEMENT
by and between
Veneto Banca S.c.p.a.
and
Gestinter S.p.A. MA.VA. Società Semplice Duet BIM Ltd. MI.MO.SE. S.p.A. Romed S.p.A. Piovesana Holding S.p.A. Pietro S.p.A. DAD&SON Boffa Pietro Alessandro Federici Luca Cordero di Montezemolo Gianfranca Cullati Serfin Servizi Finanziari S.r.l. Valentina Nasi Artex S.r.l. Fabio Viani Marta Viani Mario Piantelli Castello Società Semplice Turati Investments S.r.l.
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This shares sale and purchase agreement (the “Agreement”) is entered into between:
VENETO BANCA S.C.P.A., a company incorporated under the laws of Italy, with its registered office at Montebelluna - Treviso, Piazza G.B. Dall’Armi, 1, registered with the Companies’ Register of Treviso under no. 88163, VAT Code no. 00208740266, represented by Mr Francesco Favotto in its capacity as Chairman of the Board of Directors (the “Seller”); – at one side –
and
Gestinter S.p.A. (“Gestinter”) a company incorporated under the laws of Italy, having its registered office at via Valeggio n. 41, 10129 Turin, registered with the Register of Enterprises of Turin under No. 11110300016 same Tax Code, hereby represented by Mr. Pietro D’Aguì, born in Palizzi Marina on 26.09.1952, C.F. DGAPTR52P26G277A in his capacity as legal representative (as per Annex 1a );
MA.VA. Società Semplice (“MA.VA.”), a company incorporated under the laws of Italy, having its registered office at via Valeggio n. 41, 10129 Turin, registered with the Register of Enterprises of Turin under No. 96799390016 same Tax Code, hereby represented by Mr. Pietro D’Aguì, in his capacity as proxy (as per Annex 1b);
Duet BIM Ltd. (“Duet”), a company incorporated under the laws of Ireland, having its registered office at 70 Sir John Roberson’s Quay, Dublin, Ireland, registered with the Register of Enterprises of Dublin, hereby represented by Mr Luigi Barone, born in Rome on 08.04.1952, C.F. BRNLGU52D08H501O, in his capacity as proxy (as per Annex 1c);
MI.MO.SE. S.p.A. (“MI.MO.SE.”), a company incorporated under the laws of Italy, having its registered office at via Valeggio n. 41, 10129 Turin, registered with the Register of Enterprises of Turin under No. 00791860018 same Tax Code, hereby represented by Mr Massimo Segre, born in Turin on 16.11.1959, C.F. SGRMSM59S16L219U in his capacity as legal representative (as per Annex 1d);
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Romed S.p.A. (“Romed”), a company incorporated under the laws of Italy, having its registered office at via Valeggio n. 41, 10129 Turin, registered with the Register of Enterprises of Turin under No. 04934530017 same Tax Code, hereby represented by Mr Massimo Segre, in his capacity as legal representative (as per Annex 1e);
Piovesana Holding S.p.A. (“Piovesana”) a company incorporated under the laws of Italy, having its registered office at via M. G. Piovesana n. 13/F, Conegliano (TV), registered with the Register of Enterprises of Treviso under No. 01910580263 same Tax Code, hereby represented by Mr Pietro D’Aguì, in his capacity as proxy (as per Annex 1f);
Pietro S.p.A. (“Pietro”), a company incorporated under the laws of Italy, having its registered office at via M. G. Piovesana, n. 13/F, Conegliano (TV), registered with the Register of Enterprises of Treviso under No. 01910910262 same Tax Code, hereby represented by Mr Pietro D’Aguì, in his capacity as proxy (as per Annex 1g);
DAD&SON S.r.l. (“DAD&SON”), a company incorporated under the laws of Italy, having its registered office at via Bruno Buozzi n. 5, Turin, registered with the Register of Enterprises of Turin under No. 09923230016 same Tax Code, hereby represented by hereby represented by Mr Pietro D’Aguì, in his capacity as proxy (as per Annex 1h);
Mr Pietro Boffa (“Boffa”), born in Turin on 02.09.1960, tax code BFFPTR60P02L219V, resident at Corso M. d’Azeglio n. 2, Turin, hereby represented by Mr Pietro D’Aguì, in his capacity as proxy (as per Annex 1i);
Mr Alessandro Federici (“Federici”), born in Rome on 31.03.1966, tax code FDRLSN66C31H501F, resident at Via Monte Fumaiolo n. 5, Guidonia Montecelio, hereby represented by Mr Pietro D’Aguì, in his capacity as proxy (as per Annex 1j);
Mr Luca Cordero Di Montezemolo (“Montezemolo”), born in Bologna on 31.08.1947, tax code CRDLCU47M31A944G, resident at via Gilles Villeneuve n. 27-2, Fiorano Modenese (MO), hereby represented by Mr Pietro D’Aguì, in his capacity as proxy (as per Annex 1k);
Mrs Gianfranca Cullati (“Cullati”), born in Turin on 20.01.1940, tax code
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CLLGFR40A60L219H, resident at C.so G. Siccardi n. 11, 10122 Turin, hereby represented by Mr Pietro D’Aguì, in his capacity as proxy (as per Annex 1l);
Serfin Servizi Finanziari S.r.l. (“Serfin”), a company incorporated under the laws of Italy, having its registered office at via L. Luciani n. 41, 00197 Rome, registered with the Register of Enterprises of Rome under No. 01056521006 same Tax Code, hereby represented by Mr Pietro D’Aguì, in his capacity as proxy (as per Annex 1m);
Mrs Valentina Nasi (“Nasi”), born in Turin on 31.01.1958, C.F. NSAVNT58A71L219K, resident at Via Lanzone n. 3, 20100 Milan, hereby represented by Mr. Pietro D’Aguì, in his capacity as proxy (as per Annex 1n);
Artex S.r.l. (“Artex”), a company incorporated under the laws of Italy, having its registered office at via C. Ferrini n. 8, Busto Arsizio (VA), registered with the Register of Enterprises of Varese under No. 02530220017 same Tax Code, hereby represented by Mr Pietro D’Aguì, in his capacity as proxy (as per Annex 1o);
Mr. Fabio Viani (“Fabio Viani”) born in Certaldo (FI) on 21.04.1957, tax code VNIFBA57D21C540S, resident at Via Boccaccio n. 32, Certaldo (FI), hereby represented by Mr Pietro D’Aguì, in his capacity as proxy (as per Annex 1p);
Mrs Marta Viani (“Marta Viani”), born in Certaldo (FI) on 18.09.1965, tax code VNIMRT65P58C540S, resident at Via XV aprile n. 105, Gambassi Terme (FI), hereby represented by Mr Pietro D’Aguì, in his capacity as proxy (as per Annex 1q);
Mrs Mario Piantelli (“Piantelli”) born in Pino Torinese on 02.06.1943, tax code PNTMRA43H02G678B, resident at Corso G. Ferraris n. 75, Turin, hereby represented by Mr Pietro D’Aguì, in his capacity as proxy (as per Annex 1r);
Castello SS (“Castello”) a company incorporated under the laws of Italy, having its registered office at via Parrocchia n. 3, Moriondo Torinese (TO), hereby represented by Mr Pietro D’Aguì, in his capacity as proxy (as per Annex 1s);
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Turati Investments S.r.l. (“Turati”) a company incorporated under the laws of Italy, having its registered office at Corso Filippo Turati n. 23, Turin, registered with the Register of Enterprises of Turin under No.08639570012 same Tax Code, hereby represented by Mr Pietro D’Aguì, in his capacity as proxy (as per Annex 1t );
Gestinter, MA.VA., Duet, MI.MO.SE, Romed, Piovesana, Pietro, DAD&SON, Boffa, Federici, Montezemolo, Cullati, Artex, Nasi, Artex, Fabio Viani, Marta Viani, Mario Piantelli, Castello and Turati are hereinafter collectively referred to as the “Purchasers” and each of them as a “Purchaser”.
– at the other side –
(hereinafter, the Seller and the Purchasers shall be collectively referred to herein as the “Parties” and each of them as a “Party”)
WHEREAS
(a) The Seller is an Italian bank, duly authorized to carry out the business of collection of savings and any banking services and activities (including, without limitation, private banking services) in Italy.
(b) Banca Intermobiliare di Investimenti e Gestione S.p.A. is a company incorporated under the laws of Italy, with registered office at Torino, Via Gramsci, 7, registered with the Companies’ Register of Torino under no. 600548, VAT Code no. 02751170016, share capital Euro 156,209,463.00 (“BIM”). BIM is an Italian bank listed at the Mercato Telematico Azionario, engaged in all round private banking services and investment services.
(c) Banca IPIBI Financial Advisory S.p.A. is a company incorporated under the laws of Italy, with registered office at Milano, Corso Matteotti, 5, registered with the Companies’ Register of Milano under no. 1599769, VAT Code no. 01733820037, share capital Euro 20,043,000.00 (“IPIBI”). IPIBI is an Italian bank engaged in all round private banking service.
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(d) The Seller owns (i) no. 111.514.888 shares, representing 71.388% of the share capital of BIM (the “Seller’s BIM Shares”) and (ii) no. 11.923.816 shares, representing approximately 20.227% of the share capital of IPIBI.
(e) The Seller intends to sell no. 80,273,998 shares representing 51.39% of the share capital of BIM of which (i) no. 64,055,838 shares representing 41.01% of the share capital of BIM for a cash consideration (the “BIM Cash Shares”); and (ii) no. 16,218,160 shares representing 10.38% of the share capital of BIM in exchange of shares of the Seller (the “BIM Kind Shares”; the BIM Cash Shares and the BIM Kind Shares share hereinafter jointly referred to as the “BIM Shares”).
(f) BIM owns no. 39.624.044 shares, representing 67.22% of the share capital of IPIBI (the “IPIBI Shares Owned by BIM”).
(g) The Seller has organized a competitive bid procedure aimed at selecting a purchaser of the BIM Shares (the “Procedure”).
(h) Certain Purchasers and the Former Purchasers (as hereinafter defined), with the assistance of their professional advisors, have performed the Due Diligence Review (as defined below).
(i) The Seller has selected the Purchasers and the Former Purchasers as buyer of the BIM Shares.
(j) On August 6-7, 2014, the Seller, on the one part, and certain Purchasers and the Former Purchasers on the other part, executed a shares sale and purchase agreement relating to the BIM Shares (the “SPA”).
(k) [Omissis]
(l) The Seller intends to sell to the Purchasers, and the Purchasers intend to acquire from the Seller, the BIM Shares at the terms and conditions set out in this Agreement.
(m) The Purchasers expressly acknowledge and agree that: (i) [Omissis]; (ii) the completion of the Transaction shall trigger their own obligation – at no cost for the Seller – to launch a
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public tender offer pursuant to Applicable Laws (in particular, according to the applicable provisions of the Italian Law Decree of 24 February 1998, No. 58 and regulatory provisions thereof).
NOW, THEREFORE, the Parties agree as follows:
ARTICLE 1 – DEFINITIONS - INTERPRETATION PREAMBLE, SCHEDULES AND ANNEXES
1.1 Definitions The following words and terms shall have the meaning set forth below:
“Accounting Principles”: means the International Accounting Standards (IAS) and the International Financial Reporting Standards (IFRS), as implemented in Italy by Legislative Decree of 28 February 2005, No. 38, as integrated by the “Istruzioni di Vigilanza” issued by the Bank of Italy.
“Action”: means any claim, action, suit, investigation or other proceeding by or before any Governmental Body (as defined below).
“Affiliate”: means, with respect to any Person, a Person, directly or indirectly controlling, controlled by or under common control with such Person.
“Agreement”: means this agreement and any attachment and/or schedule and/or annexes attached hereto.
“Applicable Law”: means, with respect to any Person, any federal, state or local law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation, order, injunction, judgment, decree, ruling or other similar requirement enacted, adopted, promulgated or applied by a Governmental Body that is binding upon or applicable to such Person, as amended unless expressly specified otherwise.
“Bank of Italy”: means the central bank of the Republic of Italy, as incorporated under Royal
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Decree no. 375/1936.
“BIM”: shall have the meaning set out in the preamble of this Agreement.
“BIM Convertible Bond”: means the convertible bond “Banca Intermobiliare 2005-2015 Cv 1,50%”.
“BIM Group”: means BIM and the Controlled Subsidiaries.
“BIM Cash Purchase Price”: has the meaning set out in Article 2.2.2 of this Agreement.
“BIM Kind Purchase Price”: has the meaning set out in Article 2.2.3 of this Agreement.
“BIM Purchase Price”: means the BIM Cash Purchase Price and the BIM Kind Purchase Price.
“BIM Shares”: has the meaning set out in the preamble of this Agreement.
“Business Day”: means a day (other than Saturday or Sunday) on which banks are generally open for business in Milan (Italy).
“Change of Control Effective Date”: the date when the Seller acquired the control of BIM (i.e. February 25, 2011).
“Claim”: means a claim by a Purchaser for indemnification for a breach, or an alleged breach, of any of the representations and warranties, covenants, agreements or undertakings of the Seller contained in this Agreement.
“Closing”: means the transfer of the BIM Shares, the payment of the BIM Purchase Price by the Purchasers to the Seller and, in general, the execution and exchange of all documents, and the performance and completion of all the obligations required to be executed, exchanged, performed and completed on the Closing Date as per Article 5.2 of this Agreement.
“Closing Date”: means the date which will be indicated in writing by Seller and which will be at
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least 10 Business Days after the fulfilment of the last Condition Precedent and no more than 25 Business Days thereafter.
“Closing BIM Shares”; means no. 16,240,000 BIM Cash Shares, representing 10,4% of the share capital of BIM.
“Closing Purchase Price”: means the amount of Euro 58,464,000.
“Conditions Precedent”: means the conditions to which the occurrence of the Closing is subject to as per Article 3 of this Agreement.
“Controlled Subsidiaries”: means IPIBI, BIM Suisse S.A., Symphonia SGR S.p.A., BIM Insurance Brokers S.p.A., BIM Fiduciaria S.p.A., BIM Immobiliare S.r.l., Patio Lugano S.A., Immobiliare D S.r.l. and Pao Mar Terza S.r.l..
“Data Room” means the virtual data room at https://live.irooms.net and the physical data room set up at the office of BIM, Turin where the Purchasers and its advisors have had access to the documents and information concerning BIM and the Controlled Subsidiaries.
“Deadline” means January 31st , 2015.
“Deductible”: has the meaning set out in Article 11.2(a) of this Agreement.
“Designee”: has the meaning set out in Article 2.3 of this Agreement.
“Disclosed Information” means (i) the documents and information which were made available to the Purchasers and their advisors prior to the Closing Date in the context of the Due Diligence as contained, for the documents made available until the Signing Date, in the CD Rom signed by the Parties in two originals one of which has been delivered to Gestinter, on behalf of all the Purchasers, on August 7, 2014; and (ii) the correspondence exchanged in the context of the Due Diligence; and (iii) information in respect of BIM and the Controlled Subsidiaries in the public domain.
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“Due Diligence Review”: means the due diligence investigation on BIM and the Controlled Subsidiaries, relating to financial, tax, legal, environmental, operational, business and commercial areas carried out by the Purchasers and their advisors, in the context of which: (i) the Purchasers and their advisors had access to the Data Room, for the purpose of carrying out a legal and business due diligence and of obtaining additional information; (ii) the Purchasers and their advisors have been granted various and extensive access to the management and premises of BIM and the Controlled Subsidiaries; (iii) the Purchasers and their advisors had the opportunity to attend extensive and detailed Q&A sessions with the management of BIM and the Controlled Subsidiaries.
“Duet Purchase Price”: has the meaning set out in Article 5.2.1 of this Agreement.
“Duet BIM Shares”: has the meaning set out in Article 5.2.1 of this Agreement.
“ECB”: means the European Central Bank.
“Encumbrance”: means any encumbrance, mortgage, charge, pledge, lien or other security interest or security right or other limited right, attachment, retention of title, right of retention, personal right of enjoyment or use, licence, royalty obligations, beneficial ownership rights, option, right of first option, right of first refusal or any other restriction of any kind on use, voting, transfer, receipt of income or exercise of any other attribute of ownership, whether following from public or private law, and any rights to acquire any of the above or any other agreement or arrangement having a similar effect.
“Escrow Agent”: means Sirefid or, alternatively, Aletti Fiduciaria, BIM Fiduciaria S.p.A. or any other escrow agent chosen by the Purchaser with the prior written consent of the Sellr, which will not be unreasonably denied .
“Escrow Agreement”: means the “Mandato Fiduciario Integrativo”, governing, together with the “Mandati Fiduciari Generali”, the Escrow Bank Accounts and the Escrow Shares Account substantially in the form hereby attached under Annex 2, it being understood that the Parties shall evaluate in good faith any reasonable possible amendment thereof which may be required by the Escrow Agent.
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“Escrow Bank Accounts”: means the bank accounts to be opened within the Deadline by and in the name of the Escrow Agent on behalf of the Purchasers other than Duet, and in the interest of the Seller, governed by the Escrow Agreement.
“Escrow BIM Cash Shares”: means a number of BIM Shares equal to the result of the following difference: (BIM Cash Shares) – (Closing BIM Shares) – (Duet BIM Shares).
“Escrow Shares Account”: means the “conto titoli”, to be opened by and in the name the Escrow Agent on behalf of the Seller, and in the interest of the Purchasers other than Duet, governed by the Escrow Agreement.
“Excluded Losses”: has the meaning set out in Article 11.2(a) of this Agreement.
“Final Chart”: has the meaning set out in Article 5.2.1 of this Agreement.
“Final Term”: has the meaning set out in Article 3.4 of this Agreement.
“Financial Statements”: means: (i) the approved audited financial statements of BIM as at December 31, 2013, and (ii) the approved audited consolidated statutory financial statements of BIM for the period ending as of December 31, 2013, all comprising a balance sheet and an income statement, together with notes (i.e. nota integrativa) thereto, the directors’ report (i.e. relazione sulla gestione).
“First Portion of the Escrow Amount”: means an amount equal Euro 47,074,578.15.
“Former Purchasers” means SerendipEquity BIM Holding LLC, Building S.p.A. and Cruiser S.r.l.;.
“Governmental Body”: means any national, supra-national, regional, local or foreign governmental agency, entity, commission, department, court, ministry or regulatory body or similar authority (including without limitation legislative bodies).
“Group”: means, in relation to any Person or entity, such person or entity and its Affiliates.
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“IFRS”: means the body of pronouncements issued by the International Accounting Standards Board (IASB), as adopted for use in the European Union further to the IAS regulation (EC 1606 / 2002), including International Financial Reporting Standards and interpretations approved by the IASB, International Accounting Standards and Standing Interpretations Committee interpretations approved by the predecessor International Accounting Standards Committee.
“Institutional Investors”: means banks, insurance companies and asset management companies.
“IPIBI”: has the meaning set out in the preamble of this Agreement.
“IPIBI Shares Owned by BIM”: has the meaning set out in the preamble of this Agreement.”
“Joint Instructions”: [Omissis].
“Liquidated Damages A”: [Omissis]
“Liquidated Damages B”: [Omissis]
“Liquidated Damages C”: [Omissis]
“Loss”: means any loss, cost, damage and reasonable expense (including reasonable attorney’s fees), but excluding any loss of profits, or indirect damage.
“Non Performing Loans”: means the impaired loans specifically listed, together with their book value, in Annex 4 of this Agreement.
“Party”: has the meaning set out in the introductory part of this Agreement.
“Person”: means any individual, company, corporation, partnership, firm, association, unincorporated organization or other entity.
“Preamble”: means the preamble of this Agreement.
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“Procedure”: has the meaning set out in the Preamble of this Agreement.
“Purchasers”: means the Purchasers, as better identified in the Preamble of this Agreement.
“Required Filings”: has the meaning set out in Article 3.2 of this Agreement.
“Relevant Percentage”: means the percentage of share capital of BIM purchased by each Purchaser in implementation of this Agreement, indicated in Article 2.2.1 of this Agreement or in the Final Chart, as the case may be.
“Representations and Warranties”: has the meaning set out in Article 9 of this Agreement.
“Regulatory Authority”: means Bank of Italy and/or the ECB as the case may be.
“Regulatory Clearance”: has the meaning set out in Article 3.1 of this Agreement.
“Second Portion of the Escrow Amount”: means an amount equal to Euro 65,988,825.65.
“Seller”: means the Seller, as better identified in the Preamble of this Agreement.
“Seller’s BIM Shares”: has the meaning set out in the Preamble of this Agreement.
“Signing Date”: means the date of this Agreement.
“Sirefid”: means Società Italiana di Revisione e Fiduciaria S.I.RE.F. S.p.A., having its registered office in Via dell’Unione 1, 20122 Milano.
“Sirefid Agreement”: means the “Mandato Fiduciario Integrativo” and the “Mandato Fiduciario Generale” granted by the Seller and certain of the Purchasers on August 7/8, 2014.
“Special Purchasers”: means (a) all the Purchasers other than Gestinter, MI.MO.SE. and MA.VA. (including their controlled entities and controlling persons); and (b) any possible Designee who will
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adhere to this Agreement.
“Tax Assessments”: mean (1) the Report on Findings (Processo verbale di constatazione) issued by the Guardia di Finanza – Polizia Tributaria of Turin on March 15, 2011 towards the Company for the years 2004, 2006, 2008 and 2009, followed by (i) 2 (two) notices of assessment (Avvisi di accertamento) n. TSB080200123/2011 and n. TSB080200124/2011 towards the Company for the income tax regarding the year 2004; (ii) a notice of assessment (Avviso di accertamento) n. TSB080200163/2012 towards the Company for the income tax regarding the year 2008; (iii) a notice of assessment (Avviso di accertamento) n. TSB080200164/2012 towards the Company for the income tax regarding the year 2009; and (iv) notice of assessment (Avviso di accertamento) n. TSB030200156/2012 and (2) the Report on Findings (Processo verbale di constatazione) issued by the Agenzia delle Entrate (Direzione Regionale del Piemonte – Sezione Controlli e Riscossione – Ufficio Grandi Contribuenti) on December 19, 2013 towards the Company for the year 2010.
“Tax Authority” or “Taxation Authority”: means any supranational, national, federal, state, provincial, municipal, local, foreign or other authority having the power to tax.
“Taxes” or “Taxation”: means all taxes, levies or other like assessments, charges or fees, including, without limitation, corporate income (IRPEG and IRES), VAT, local tax on production value (IRAP), corporation, transfer, excise, property, municipality property (including IMU), substitute taxes, sales, use, employment related (including employee withholding or employee payroll), withholding and substitute tax, social security contributions, severance, stamp duty, registration tax (including imposta di registro, imposta ipotecaria and imposta catastale), capital stock, customs duties and franchise or other governmental taxes or charges, imposed by any Tax authority, and such term shall include any interest, penalties or additions to tax or additional amount attributable to such taxes.
“Transaction”: means, collectively, the transactions contemplated by this Agreement and any other agreements and instruments which will be executed and delivered between the Parties on the Closing Date.
“VB Right”: has the meaning set out in Article 4.2 of this Agreement.
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“VB Kind Shares” means a total number of 1,621,816 shares issued by the Seller and owned by MA.VA and MI.MO.SE according to the chart set out under Article 2.1.1.
“VB Shares”: means no. 316.456 shares of the Seller.
1.2 Interpretation; Certain Definitions The headings contained in this Agreement and in any Annex or Schedule hereto are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Unless the context otherwise requires, as used in this Agreement: (i) “control” shall mean control pursuant to Article 2359, first paragraph, no. 1, of the Italian Civil Code, and the terms “controlled” and “controlling” shall be construed accordingly; (ii) “including” shall mean “including, without limitation”; (iii) words in the singular include the plural; (iv) words in the plural include the singular; (v) words applicable to one gender shall be construed to apply to each gender; (vi) the terms “hereof,” “herein,” “hereby,” “hereto” and derivative or similar words refer to this entire Agreement, including any Annex or Schedule hereto.
1.3 Preamble, Schedules and Annexes The Preamble, the following Annexes Annex 1 – Proxies Annex 2 – Sample of the Escrow Agreement Annex 3 – Joint Instructions to Sirefid Annex 4 – Non Performing Loans Annex 5 – Deed of adherence to the Agreement and all the attachments form an integral and a substantial part of this Agreement.
ARTICLE 2 - SALE AND PURCHASE OF THE SHARES – RIGHT TO DESIGNATE
2.1 Sale and purchase [Omissis] 2.2 Purchase Price [Omissis] 2.3 Right to designate 2.3.1 Within and not later than the Deadline, the Purchasers shall be entitled to designate one or
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more investors (each of them a “Designee”) as purchaser of a portion of the BIM Cash Shares to be purchased by them up to a maximum number of no. 40,000,000 BIM Cash Shares provided that the following conditions are complied with: (i) name and detail of the Designee has been notified to the Seller at least 10 Business Day prior to the proposed designation; (ii) the Seller, within 5 Business Days following the receipt of the notice referred to under (i) above, has given its consent to such proposed designation (consent which shall not be unreasonably denied); (iii) the Purchasers shall provide the Seller (within the earlier of 5 Business Days following Sellers’ consent referred to under (ii) above and the Deadline) with an original: (i) deed of adherence (in the form hereby attached as Annex 5) duly executed by the Designee, whereby the designee unconditionally adheres to this Agreement and accepts to be bound by all the relevant terms and conditions, thus becoming a Party thereto; and (ii) deed of adherence (in the form substantially similar, mutatis mutandis, to Annex 5) duly executed by the Designee, whereby the designee unconditionally adheres to the Escrow Agreement and accepts to be bound by all the relevant terms and conditions, thus becoming a Party thereto and opens, in a sole and not severable context, its own Escrow Bank Account and pays therein its portion of the BIM Cash Purchase Price; (iv) the Purchasers shall remain jointly and severally liable with the Designee for the performance by the Designee of all obligations arising out of, or in connection with, this Agreement; (v) following such designation, all references to the “Purchasers” included in this Agreement will be interpreted as including also the Designee. 2.3.2 Within and not later than the Deadline, the Purchasers are entitled to reallocate among themselves the BIM Cash Shares, without prejudice for any Seller’s rights and Purchasers’ obligations and provided that the total number of BIM Cash Shares shall remain equal to 64,055,838.
ARTICLE 3 – CONDITION PRECEDENT
3.1 Condition to obligations of the Parties to perform the Closing [Omissis] 3.2 Filings
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[Omissis] 3.3 Regulatory undertakings [Omissis] 3.4 Fulfillment of the Condition Precedent - Termination [Omissis]
ARTICLE 4 – ESCROW AGREEMENT – PURCHASE OF VB SHARES
4.1 Escrow Agreement [Omissis] 4.2 Purchase of Veneto Banca Shares [Omissis]
ARTICLE 5 – INTERIM MANAGEMENT - PRE CLOSING COVENANTS
5.1 Conduct of business prior to the Closing Except for the activities expressly mentioned in this Agreement, without the prior written consent of the Purchasers, which will not be unreasonably denied and which will be considered granted if no written and justified refusal is given to the Seller within 5 Business Days from the request, the Seller shall cause that, unless in the ordinary course of business:
(a) BIM and its Controlled Subsidiaries do not increase or decrease their registered share capital, or acquire any of their shares, except as required by laws or regulation or by the competent governmental authority; (b) BIM and its Controlled Subsidiaries do not change the type, form, nominal value or any rights attached to any of its shares; (c) BIM and its Controlled Subsidiaries do not grant any rights, options or commitments in respect of any of its shares; (d) BIM and the Controlled Subsidiaries do not issue any shares, convertible bonds or other securities or any rights relating thereto; (e) BIM and the Controlled Subsidiaries do not amend their by-laws and do not enter in any shareholders’ agreement; (f) BIM and the Controlled Subsidiaries do not resolve any buy back or other similar
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transactions; (g) BIM and the Controlled Subsidiaries do not change their accounting procedures, principles and practices, except as may be required by Applicable Laws or by the Accounting Principles; (h) BIM and the Controlled Subsidiaries do not materially change any of their credit policies or practices; (i) BIM and the Controlled Subsidiaries do not merge, de-merge or consolidate with or into any other entity; (j) BIM and the Controlled Subsidiaries do not provide additional loans, credit facilities or other financing, whether in a single transaction, or a series of related transactions, in excess of Euro 1,000,000.00 (one million) to any one person (or Euro 750,000.00 in the case of a Related Party) it being understood that BIM and the Controlled Subsidiaries may provide “Lombard”; (k) BIM and the Controlled Subsidiaries do not execute purchase and sale agreements having real estates as object and/or do not grant rights in rem, over immovable assets, for an amount, in the aggregate, exceeding Euro 500,000.00 (five hundred thousand); (l) BIM and the Controlled Subsidiaries do not amend the collective bargaining agreements or grant any personal benefits to senior executives, except as required pursuant to individual agreements currently in force, collective bargaining agreements or Applicable Law or in accordance with the past policies and practices of the Company or of the Controlled Subsidiaries; (m) BIM and the Controlled Subsidiaries do not establish or materially increase any bonus, insurance, severance, termination, deferred compensation, pension, retirement, profit sharing, stock option, stock purchase or other employee benefit plans, or otherwise increase the compensation payable to any employees having the qualification of “dirigenti”, all other than in the ordinary course of business in line with the remuneration policy of BIM consistent with past practice or except as may be required by law, by the applicable collective bargaining agreements (i.e. CCNL - contratto collettivo nazionale) or company agreement (i.e. contratti integrativi aziendali), it being understood that, anything to the contrary notwithstanding, the Purchaser accepts that the current “direttore generale” could be replaced by a new one at new terms and conditions; (n) BIM and the Controlled Subsidiaries do not hire additional manager (dirigenti) except for those required to replace those terminated, provided that their terms of employment are
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substantially analogous to those of the terminated ones; (o) BIM and the Controlled Subsidiaries, where they are defendant, do not, except in the normal and ordinary course of its business, enter into settlement agreements relating to litigation or arbitration proceedings, should the amount to be paid by BIM or the Controlled Subsidiaries pursuant to such settlement agreement is higher than Euro 200.000,00 (two hundred thousands) per agreement; (p) BIM and the Controlled Subsidiaries do not adopt or enter into any new company employment agreement (i.e. contratto integrativo aziendale), except in relation to the replacement of such agreements which have expired; (q) no asset is sold by BIM and/or the Controlled Subsidiaries, if it is material for the carrying out of their business, for an amount exceeding, in the aggregate, Euro 500,000.00 (five hundred thousand) without replacing such asset. (r) BIM and the Controlled Subsidiaries do not agree to do any of the foregoing. For sake of clarity the Parties acknowledge and agree that the shareholders’ meeting of BIM may distribute the profits accrued as at December 31st, 2014 (it being understood that the profits to be distributed shall not exceed the profits of 2014 financial year). 5.2 Additional covenants of the Purchasers 5.2.1 Within the Deadline: (i) the Purchasers shall provide the Seller with a final chart, to be prepared in compliance with the provisions of this Agreement, containing the final names of all the Purchasers, the final amount of the BIM Cash Shares to be transferred to each of them and the final allocation of the BIM Cash Purchase Price among the Purchasers (the “Final Chart”). The Final Chart shall replace the chart relating to the BIM Cash Shares contained in Section 2.1. Should the Final Chart not be timely provided to the Seller, or should any dispute arise in connection with its content, then the allocation of the BIM Cash Shares and of the BIM Cash Purchase Price set out in Section 2.1. shall apply; (ii) Duet shall deliver to the Seller an adequate guarantee securing the payment by Duet of the BIM Cash Purchase Price in relation to the number of BIM Shares which Duet shall be bound to purchase pursuant to the Final Chart, which shall be at least no. 16,415,000 BIM Shares representing at least 10.51% of the share capital of BIM (respectively the “Duet Purchase Price” and the “Duet BIM Shares”), through an irrevocable undertaking (assumed by J.P. Morgan or by another primary international bank institution of equivalent standing) to pay to the Seller such purchase price on the Closing Date.
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[Omissis]
ARTICLE 6 – CLOSING
6.1 Place of Closing [Omissis] 6.2 Closing actions and deliveries 6.2.1 At the Closing Date in the following order: [Omissis] (f) [Omissis] (g) [Omissis] (h) the Seller shall cause that (x) 4 directors of BIM appointed by the Seller resign from their office with effect as of the Closing Date, waiving any claim against BIM except for their accrued compensation and (y) at least the majority of the directors of the Controlled Subsidiaries resign from their office, waiving any claim against the relevant company except for their accrued compensation. Any cost and/or damage possibly incurred by BIM (exceeding, for sake of clarity, the amount of their accrued compensation as of the Closing Date) in connection with, or as a result of such resignations or ceasing from office shall be paid or reimbursed, as the case may be, by the Seller; (i) the Seller shall cause that the Board of Directors of BIM appoints at the Closing Date, pursuant to Article 2386 of the Italian Civil Code (so-called “cooptazione”), 4 new directors, whose names shall be notified to the Seller and to BIM by the Purchasers at least 3 (three) Business Days before the Closing, being understood that such candidates shall hold all the requisites prescribed by Applicable Laws in order to hold the office (including those requisites regarding the balance between genders); (l) the Seller use its best efforts to cause that (actual and alternate) members of statutory auditors of BIM to resign from office as of the Closing Date waiving any claim against BIM except for their accrued compensation. All the costs and/or damages incurred by BIM (exceeding, for sake of clarity, the amount of their accrued compensation as of the Closing Date) in connection with, or as a result of, such resignations or ceasing from office shall be paid or reimbursed, as the case may be, by the Seller; [Omissis] (o) the Seller shall swap no. 11,718,160 BIM Kind Shares with MA.VA. in exchange of no.
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1,171,816 shares of the Seller; (p) the Seller shall swap no. 4,500,000 BIM Kind Shares with MI.MO.SE. in exchange of no. 450,000 shares of the Seller; (q) MI.MO.SE. shall pledge the shares of BIM purchased pursuant to (p) above, in favor of Veneto Banca with the prosecution of the loan granted to MI.MO.SE. existing at the date hereof, it being understood that: i) no novative effect will be suffered by the loan agreement entered into by MI.MO.SE. and Veneto Banca on April 5, 2010; ii) shares of BIM shall be considered equivalent to Veneto Banca shares for the purpose of the relevant agreement; [Omissis] 6.3 Closing considered as a single transaction – No novative effect [Omissis]
ARTICLE 7 – LIABILITY OF THE PURCHASERS [Omissis]
ARTICLE 8 – POST CLOSING UNDERTAKINGS
8.1 NPL [Omissis] 8.2 Distribution Agreement [Omissis]
ARTICLE 9 - REPRESENTATIONS AND WARRANTIES OF THE SELLER [Omissis] 9.1 Incorporation and authority of the Seller [Omissis] 9.2 No conflict [Omissis] 9.3 Incorporation of BIM and the Controlled Subsidiaries [Omissis] 9.4 Insolvency [Omissis]
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9.5 Capital stock [Omissis]
9.6 BIM Group and transactions with the Seller [Omissis]
9.7 Financial Statements [Omissis]
9.8 Administrative authorizations and compliance [Omissis]
9.9 Real Estate assets [Omissis]
9.10 Tax [Omissis] 9.11 Labor Relationship [Omissis] 9.12 Absence of litigation [Omissis] 9.13 Contracts [Omissis] 9.14 Intellectual Property [Omissis] 9.15 Information [Omissis] 9.16 Former SPA [Omissis]
ARTICLE 10 - REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
[Omissis] 10.1 Incorporation and authority of the Purchaser; no conflict [Omissis] 10.2 Consents and approvals
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[Omissis] 10.3 Adequate standing and financial means to finance the Transaction [Omissis] 10.4 Authorizations [Omissis] 10.5 Absence of litigation [Omissis] 10.6 No other representations and warranties [Omissis] 10.7 Accuracy as of the Closing Date [Omissis]
ARTICLE 11 – INDEMNIFICATION
11.1 Undertakings of the Seller [Omissis] 11.2 Exclusions and Limitations [Omissis] 11.3 Recovery [Omissis] 11.4 Handling of Claims [Omissis] 11.5 Sole remedy [Omissis] 11.6 Payments [Omissis] 11.7 Special indemnification for Institutional Investors [Omissis]
ARTICLE 12 – RESIGNATIONS AND RELEASE LETTERS – APPOINTMENT OF DIRECTORS AND STATUTORY AUDITORS - OPA
12.1 Resignations of the directors and statutory auditors
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[Omissis] 12.2 Release of the resigning directors [Omissis] 12.3 Additional resignations Upon request by the Purchaser, within and no later than the following 15 Business Days, the Seller shall cause that 2 directors of BIM appointed by the Seller (in addition to the directors who resigned on the Closing Date), resign from their office, waiving any claim - for reasons connected to their office - against BIM except for their accrued compensation. The Seller and the Purchasers shall cause that the Board of Directors of BIM appoints, pursuant to Article 2386 of the Italian Civil Code (so-called “cooptazione”), 2 new directors, whose names shall be timely notified to the Seller and to BIM by the Purchasers, it being understood that such candidates shall hold all the requisites prescribed by Applicable Laws in order to hold the office (including those requisites regarding the balance between genders. 12.4 Shareholders’ meetings Upon resignation of the BIM and of any Controlled Subsidiaries directors and/or statutory auditors, then a shareholders’ meeting of BIM and of any interested Controlled Subsidiaries shall take place, as soon as practicable and no later than 60 calendar days, to (i) elect new directors and new statutory auditors (according to the Purchaser’s instructions to be timely given) in lieu of those ceased and (ii) discharge and release (for the purposes the applicable provisions of the Italian Civil Code), all resigning directors and statutory auditors of BIM and of any Controlled Subsidiaries from and against any liability vis-à-vis BIM; (iii) waive to activate any liability action against any of the above mentioned individuals. 12.5 OPA The Seller within the Deadline, subject to the compliance by the Purchaser of the obligations pursuant to this Agreement and the occurrence of the Closing, agrees to enter in to an agreement, pursuant to which it will not sell the shares of BIM (of which it will remain owner, following the Closing Date) in the context of the mandatory public tender offer to be launched by the Purchasers on BIM shares at price per BIM share of Euro 3.60 (the “OPA”), subject to the following condition: the same undertaking is simultaneously executed by a number of shareholders of BIM owning a number of BIM shares representing, including Seller’s BIM Shares, at least 93% of the share capital of BIM (less 4.21% of BIM own shares), so that the OPA shall be launched on a maximum number of BIM shares equal to 7.07% of the share capital of BIM. The Parties agree: (a) that the above mentioned agreement (“Standstill”) shall be conditional upon
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the obtainment by the Purchasers of a non-conditional cash confirmation in relation to the OPA to be provided by a primary bank within and no later than March 15th 2015 (the “Cash Confirmation”); (b) within and no later than March 15th 2015 the Purchasers shall have granted or extended, as the case may be, in favor of the Seller, all the securities granted in order to guarantee the Cash Confirmation, it being understood that such securities in favor of the Seller shall become automatically effective, should the Cash Confirmation be terminated or cease to be effective for any reason whatsoever, whether or not attributable to the Purchasers or to any of them (and, provided that the Cash Confirmation has not been replaced by an analogous cash confirmation), or otherwise shall have granted and established a security in favor of the Seller, acceptable to the Seller, for an amount equal to Euro 3.60 multiplied by the number of shares of BIM object of the OPA, plus 20%.
ARTICLE 13 – TAX, COSTS AND EXPENSES
13.1 Taxes [Omissis] 13.2 Costs and expenses [Omissis]
ARTICLE 14 - IPIBI
14.1 On August 7, 2014 the Seller and BIM executed a sale and purchase agreement pursuant to which: (i) the Seller shall buy from BIM the IPIBI Shares owned by BIM, for a price per share equal to Euro 1.02; (ii) the Seller shall relieve BIM from its obligations undertaken vis-à-vis other minority shareholder of IPIBI to buy additional IPIBI shares for a consideration of Euro 3,242,250.00 (the “IPIBI SPA”). The closing of the IPIBI SPA is subject to the fulfillment of a condition precedent. Should such condition precedent not be fulfilled, the Seller and BIM shall enter into a put and call option agreement pursuant to which BIM will be entitled, within 12 months, to sell to the Seller (which may also designate a third party as purchaser) the IPIBI Shares at the consolidated book value as of December 31st, 2013 per share and the Seller shall be entitled to purchase at the same price the IPIBI Shares. 14.2 Following the Closing Date, should the IPIBI SPA not be closed, the Purchasers (i) shall cause IPIBI to be managed in the ordinary course of business; (ii) shall cause BIM to vote the IPIBI
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Shares in the shareholders’ meetings of IPIBI pursuant to the Sellers’ instructions. 14.3 The provisions under Article 5.1 above shall not apply to IPIBI.
ARTICLE 15 - MISCELLANEA
15.1 Public announcement [Omissis] 15.2 Confidentiality [Omissis] 15.3 Severability [Omissis] 15.4 Entire agreement [Omissis] 15.5 Assignment [Omissis] 15.6 No third-party beneficiaries [Omissis] 15.7 Amendment; Waiver [Omissis] 15.8 Notices [Omissis] 15.9 Domicile [Omissis] 15.10 Language [Omissis] 15.11 Governing Law [Omissis] 15.12 Arbitration [Omissis]
*** *** *** Milan, 15 January 2015
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______GESTINTER S.p.A. (Pietro D’Aguì)
______MA.VA Società Semplice (Pietro D’Aguì)
______DUET BIM Ltd. (Luigi Barone)
______MI.MO.SE. S.p.A. (Massimo Segre)
______ROMED S.P.A. (Massimo Segre)
______PIOVESANA HOLDING S.p.A. (Pietro D’Aguì)
______PIETRO S.p.A. (Pietro D’Aguì)
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______DAD & SON S.r.l. (Pietro D’Aguì)
______PIETRO BOFFA (Pietro D’Aguì)
______ALESSANDRO FEDERICI (Pietro D’Aguì)
______SERFIN SERVIZI FINANZIARI S.r.l. (Pietro D’Aguì)
______GIANFRANCA CULLATI (Pietro D’Aguì)
______VALENTINA NASI (Pietro D’Aguì)
______LUCA CORDERO DI MONTEZEMOLO (Pietro D’Aguì)
______
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ARTEX S.R.L. (Pietro D’Aguì)
______FABIO VIANI (Pietro D’Aguì)
______MARTA VIANI (Pietro D’Aguì)
______MARIO PIANTELLI (Pietro D’Aguì)
______CASTELLO SS (Pietro D’Aguì)
______TURATI INVESTMENTS (Pietro D’Aguì)
______VENETO BANCA S.C.P.A. (Francesco Favotto)
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