1. BENETTON GROUP S.p.A., with registered office in Ponzano Veneto (TV), represented by its managing director, Mr Luigi de Puppi (hereinafter referred to as "Benetton"), hereby acting also on behalf of Benetton Sportsystem USA Inc.;
2. PRIME NEWCO S.r.l, with registered office in Treviso, represented by its pro-tempore legal representative, Mr. Franco Vaccari (hereinafter referred to as the "Purchaser").
(a) Benetton controls indirectly Benetton Sportsystem U.S.A. Inc., a company based in the U.S. which, among other things, owns the trademark "Rollerblade" and the going concern that manufactures and merchandises rollerblades and the pertaining products marked by this principal trademark and the related trademarks.
(b) After being approached by several subjects with an interest in purchasing the said trademark and the pertaining business, Benetton granted to the merchant bank Merrill Lynch International - Milan office ("Merrill Lynch") a mandate to study the feasibility of divesting such business, including the trademarks.
(c) Commencing May 13, 2002, Merrill Lynch asked the various potentially interested parties to confirm their intention to buy and to make a non-binding offer, in order to make a first evaluation.
(d) On the basis of the non-binding offers received, Benetton, with the assistance of Merrill Lynch, selected several interested subjects, one of those being the company Tecnica S.p.A., with registered office in Giavera del Montello (TV) ("Tecnica"), and allowed them to carry out documentary due diligence procedures on a number of documents selected and/or organized for this purpose by Benetton and made available in an ad hoc data room in August 2002; all the information that were disclosed and/or revealed to Tecnica, its managers, or representatives during the due diligence procedure or thereafter by means of transmission of documents, is deemed to be known by the Purchaser.
(e) The Purchaser is the controlling shareholder of Tecnica, which has recently signed a framework agreement with Benetton for the purchase of Nordica Business, with Closing Date 31 January 2003 (for most of the closing contracts and activities).
(f) The Purchaser, on the basis of the data and information concerning the Business (as defined by the following Article 1.33) received by Tecnica according to point (d) above and communicated by Tecnica to the Purchaser, as well as on the basis of the evaluation of the potential synergies that the purchase of the said Business could provide to the companies of "Tecnica group", has sent to Benetton an irrevocable proposal for the execution of a binding preliminary contract concerning the purchase of the Business by the Purchaser (directly or through subsidiaries or affiliates, or through a third company whose compliance is unconditionally promised by the Purchaser, jointly and severally bound).
(g) Benetton has accepted the irrevocable proposal of the Purchaser and, on the basis of such proposal, the Parties have executed this Framework Agreement, which includes, together with the Schedules, all the agreements between the parties regarding the purchase of Rollerblade Trademark and the pertaining Business, as defined by the following Articles 1.33, of the Participation, of Moulds 2003 and/or Moulds 2004 as infra defined.
THEREFORE, the foregoing being complementary to the provisions ser forth below provisions, the Parties hereby agree as follows:
In this Framework Agreement, the terms defined below, when capitalized, shall have the meaning attributed to them in this Article 1.
Purchaser means the company Prime Newco S.r.l.
Patents means the patents, the utility models, the design patents and the ornamental designs registered by the Sellers, and the patent applications filed by the Sellers in reference to the Products listed in Schedule 1. This Schedule also indicates the Patents in relation to which the Purchaser, or the Transferee designated by the Purchaser, undertakes to grant in favor of the Transferee of Nordica Business a license to use.
Licensed Patents means the patents, the design patents, the utility models and the ornamental designs registered by the Sellers in relation mainly to other products of their sports line, but also used in relation to the Products, as listed in Schedule 2, that the Sellers (or parties acting on their behalf) will grant as a license to the Purchaser before the end of the Closing period pursuant to the license agreements as attached to this framework Agreement in Schedule 3.
Closing means the performance of the transactions necessary to transfer the Business in each Jurisdiction.
Fixed Component means the amount of Euro 20.000.000,00 (twenty millions Euros), which constitutes the evaluation of both the goodwill of the Business and the Intellectual Property, with the exclusion of the evaluation covered by the Variable Component.
Variable Component means the algebraic sum of the Value of the Inventory and the amount of the Liabilities.
Contracts means all the contracts listed in Schedule 4 entered into for the activity of the Business, and transferred together with it.
Supply of Services Contract means the contract that the Purchaser and/or the Transferees of the Business and Benetton will enter into on the Closing Date, containing the same terms and conditions of the supply of services contract entered into by Benetton and the Transferee of the Nordica Business with the appropriate adjustments, and with the content defined by a Third Arbitrator, in the case of absence of agreement within the Closing Date.
Sponsorship Contracts means the sponsorship contracts entered into with athletes or competitive teams for the promotion of the Products listed in Schedule 4, the cost of which will be borne by Benetton until December 31, 2003.
Bordentown Lease Agreement means the lease agreement for a fixed duration concerning part of the real-estate of Bordentown (new Jersey), regulated by Article 8.1 of this Framework Agreement.
Trevignano Lease Agreement means the lease agreement for a fixed duration concerning part of the real-estate property of Trevignano, regulated by Article 7 of this Framework Agreement
Receivables means the commercial receivables of the Business identified by Benetton and communicated to the Transferees within five Working Days from the Closing Date. Benetton is entitled to instruct the Transferees to collect these receivables according to the terms and conditions set out in the following Article 10.
Closing Date means May 31, 2003, or the different date agreed by the Parties.
Employees means the employees listed in Schedule 5, save for any individual and voluntary resignations of single employees.
Due Diligence Documents means the documents and the information regarding the Business made available to Tecnica (and through this to the Purchaser) or to the Purchaser before the execution of this Framework Agreement, which consists of the documents listed under Schedule 6.
Eurobor means the rate called Euro Interbank Offered Rate, in reference to a period of a certain duration, as determined on page Telerate 248, actual column 360, on the second Working Day before the end of the above mentioned period, or the equivalent at 11 a.m. in Milan.
Rollerblade Turnover means the consolidated turnover, net of returned merchandise (which is not warranted by Benetton pursuant to this Framework Agreement or is not otherwise attributable to Benetton) and net of the trade allowance (calculated in reference to the sale of Products and as long as consistent with the practice of the Purchaser for other products of its lines) realized by the Purchaser and its subsidiaries (and by the companies they participate as a part of a group) through the sale of products which display the Trademarks, and through trademarks that are part of the line of Rollerblade products registered after the Closing Date, or through the exploitation of the Intellectual Property.
Working Days means all the days in which banking institutions are open on the Milan Stock Exchange.
Jurisdiction means each country in which each element of the Business is located.
Inventory means the entire inventory of Products existing on the Closing Date, ascertained in accordance with the provisions set out in Schedule 9.
Trademarks means the trademark "Rollerblade", as well as the other trademarks related to it, registered by the Sellers, and the trademark applications filed by the Sellers, listed in Schedule 7.
Participation means the stake of Benetton in Benetton Sportsystem Schweiz AG equal to 100% of the company capital.
Liabilities means all the liabilities of the Business existing on the Closing Date, which the Parties will agree to transfer as part of the Business before the Closing Date (including the severance in whole or in part, as set out in Article 9.2).
Losses means all the costs, the expenses, the losses and the liabilities suffered by the Transferees or the Sellers as a consequence of a breach of the representations and warranties or as a consequence of a breach of other warranties legally required.
Interim Period means the period from the date on which this Framework Agreement is signed until the Closing Date.
Closing Price means the sum of the Fixed Component and Variable Component as resulting from the Closing Asset and Liability Statement.
Temporary Price means the sum of the Fixed Component and Variable Component as resulting from the Estimated Asset and Liability Statement.
Moulds 2003 Price means the amount of Euro 1.500.000,00 (one million and five hundred Euro) (amount comprehensive of the research and development costs), agreed by the Parties and not subject to adjustments.
Moulds 2004 Price means the amount resulting from the sum of the amounts of the invoices received by Benetton for the Moulds 2004 (for this reason) until the date of execution of this Framework Agreement plus the fixed amount of Euro 60.000,00 (sixty thousand Euro), as agreed by the Parties in reference to the research and development costs. The Purchaser and/or the involved Transferee shall bear the remaining costs due to third parties for this reason, holding Benetton free from this responsibility.
Participation Price means the value of the net capital of the company Benetton Sportsystem Schweiz AG as resulting from the Asset and Liability Statement of May 31, 2003, drafted in accordance with the provisions of the following Article 3.9.
Products means all the products which display the Trademarks manufactured and/or sold in the context of the activity of the Business and which display the Trademarks.
Intellectual Property means the Trademarks, the Patents, the Licensed Patents, as well as the possible copyrights, de facto trademarks, trade names and domain names used to operate the Business, as long as related to the Trademarks and with the exclusion of both the name and trademark "Benetton" in its different inflexion and the expression "Sportsystem".
Business means the totality of the going concern being transferred pursuant to this Framework Agreement, including the goodwill, the Moulds 2003 and/or 2004 that are part of it, the Contacts, the Employees, the Intellectual Property, the Liabilities and the Inventory. Real estates and debts different from the Liabilities are not included in the Business.
Auditing Company means the auditing company PriceWaterhouse Coopers of Treviso, or the auditing company KPMG of Padova if the former fails to accept or has a conflict of interest or, if the latter company does not wish or cannot accept the mandate to audit, the leading Italian auditing company, independent from the Parties, that will be jointly appointed by the Parties within fifteen days from KPMG's refusal, or by the President of the Court of Milan, if no agreement is reached by the Parties.
Closing Asset and Liability Statement means the closing revaluation of the Estimated Financial Position, as drafted pursuant to the provisions of this Framework Agreement agreed by the Parties or, upon request of the most diligent Party, by the Auditing Company within thirty days from the date of the mandate, if no agreement is reached within sixty days from the Closing Date.
Estimated Asset and Liabilities Statement means the pro-forma financial situation of the Business on March 31, 2003, that will be drafted by Benetton during the Interim Period according to the provisions of this Framework Agreement.
Moulds 2003 means the existing moulds used by the Sellers to manufacture the Products as listed in Schedule 8, including the related research and development; these are the moulds created up to the collection 2003 (included), regardless of their ownership.
Moulds 2004 means the moulds under construction and pertaining to the collection 2004, regardless of their ownership.
Third Arbitrator is the single arbitrator nominated in accordance with the National Arbitration Rules of the National and International Arbitration Chamber of Milan, which the Parties declare to entirely know and accept, The Arbitrator shall proceed without ritual and on equity basis, and its decision is final and can not be appealed; the decision shall be accepted by the Parties as an integral part of this Framework Agreement. The most diligent Party can call upon the Arbitrator solely in the cases expressly set out in this Framework Agreement in order to fill the vacuum of the contractual will of the Parties.
Transferee of Nordica Business means, in Italy, the company Nordica S.p.A., with registered office in Trevignano (TV), purchaser of Nordica Business, and, in the United States, the company Nordica USA Corp., with registered office in New Hampshire, purchaser of specific assets.
Transferees means the Purchaser and any of its subsidiaries or affiliates, or the third company, whose compliance is unconditionally promised by the Purchaser, jointly and severally bound, whether existing or to be incorporated before the Closing Date, which shall be designated by the Purchaser to purchase part of the Business.
Know How Value means 1,5% of the amount of Rollerblade Turnover realised by the Purchaser in each financial period from 2003 (i.e. from the Closing Date up to December 31, 2003) until 2007 (included).
Inventory Value means the value of the Inventory on the Closing Date as ascertained applying the provisions set out in Schedule 9 to the Inventory drafted on the Closing Date.
Sellers means the Benetton Sportsystem USA Inc., as the owner of the Business, as well as Benetton and the companies it directly or indirectly controls, which own the Participation and/or the Moulds 2003 and/or the Moulds 2004.
2. OBJECT OF THE AGREEMENT
Under the terms and conditions described in this Framework Agreement, Benetton undertakes to procure, pursuant to the provisions of Article 1381 of the Italian Civil Code, that Benetton Sportsystem USA Inc. will sell the Business and the Know How to the Purchaser and to the Transferees. Benetton undertakes to sell and to procure, pursuant to the provisions of Article 1381 of the Italian Civil Code, that the Sellers will sell the Participation, the Moulds 2003 and the Moulds 2004 Pursuant to the Framework Agreement. The Purchaser undertakes to purchase and to provoke, pursuant to the provisions of Article 1381 of the Italian Civil Code, that the Transferees will purchase the Business, the Know How, the Participation, the Moulds 2003 and Moulds 2004.
The transfer of objects of the sales mentioned in Article 2.1 will be concluded on the Closing Date in each Jurisdiction, with the involved Seller(s) and/or involved Transferee(s)' execution of the Closing Agreements entered into with the formalities required under the local laws. It is expressly understood that the Purchaser is jointly responsible with the Transferees for the compliance of the obligations of the Transferees pursuant to this Framework Agreement and the Closing Agreements and, conversely, that Benetton is jointly responsible with all the Sellers for the compliance of the obligations of the Sellers pursuant to this Framework Agreement and the Closing Agreements.
The Closing Agreements have the sole function of allowing the conclusion of the transfers with the formalities required under the local laws. The terms and conditions of this Framework Agreement shall apply, even though departing from the covenants contemplated in the Closing Agreements or not replicated in the Closing Agreements.
As a consequence, any covenant of the Closing Agreements which is inconsistent with any provision of this Framework Agreement shall not constitute an amendment of this Framework Agreement, unless it is so expressly provided in a written addendum signed by Benetton and the Purchaser. Therefore, in absence of such addendum, Benetton and the Purchaser, in the context of their relationship, agree not to apply - and to the extent possible to procure that the Sellers and the Transferees not apply - such inconsistent covenants (even if the same are mandatory pursuant to the relevant law), and agree in their relationship to apply, and to procure that the Sellers and the Transferees involved apply, in their stead, the covenants of this Framework Agreement. In the event the non-application of the inconsistent covenants between the Sellers and the Transferees is not allowed in some Jurisdictions, Benetton and the Purchaser shall make the necessary adjustments to reach the condition that would have existed if such inconsistent covenants had not been applied and the covenants of this Framework Agreement had been applied instead. Nonetheless, in the event Benetton and the Purchaser do not agree on the content of the adjustments, the decision will be resorted to the Third Arbitrator, and the Parties hereafter undertake to accept it as final and without appeal; it is further understood that the contractual terms will be suspended from the moment of the resort to the Third Arbitrator and will start again as from the date of the Third Arbitrator's communication to the last of the involved Parties.
The transfer of the Know How from the Sellers to the Purchaser shall take place on the Closing Date and subject to the Closing, without any formality. The Purchaser, also on behalf of the Transferees, acknowledges the verification and the knowledge of the Know How object of the transfer and to accept it, as ascertained and known by the Purchaser, without any other claim to the Sellers on the matter; upon request of Benetton, the Purchaser shall provoke similar acknowledgment to be formalized by the involved Transferee(s) at the Closing.
The Purchaser acknowledges to be aware of the transfer of the property of the Licensed patents to Nordica Business and (save for the patent n. TV 2002A00063, still owned by Benetton, whose license will be granted on the basis of the agreement reached by the Parties before the Closing Date, or, if no agreement is reached, on the basis of the license drafted by the Third Arbitrator). Furthermore, the Purchaser declare to have no objection and to expressly hold the Sellers free from any responsibility on the matter.
3. FINANCIAL COVENANT BETWEEN THE PARTIES
The consideration for the purchases indicated in Article 2.1 shall be paid by the Purchaser, also on behalf of the Transferees, to Benetton, also on behalf of the other Sellers, as follows:
on the Closing date, the Purchaser shall pay to Benetton the amount resulting from the sum (i) of the Fixed Component (first minuend), (ii) the Moulds Price 2003 (second minuend), (iii) the Moulds Price 2004 (third minuend), (iv) the Participation Price, if determined by mutual consent on such date (forth and final minuend), (iv) the Liabilities known on the Closing Date (first and final subtrahend);
in the event the Participation Price is not determined by mutual consent of the Parties on the Closing Date, it will be determined by the Auditing Company, upon request of the most diligent Party, within 30 days from the mandate. The amount due for this reason, and not paid on the Closing Date, will be paid by the Purchaser within 30 days from the determination of the Accounting Company, plus interest accrued from the Closing Date at the six months Eurobor rate together with a spread of 2%;
the Purchaser shall pay to Benetton the Inventory Value, less the possible Liabilities of unknown amount at the Closing Date, which shall be determined, as agreed, after the Closing Date, as set out in the following Article 11.3 - also as for the terms of payment - solving the possible difference between the Temporary Price already paid and the Closing Price no further than the term set out in the following Article 11.3.2, also by means of clearance when required and its preconditions are in place.
The Know How Value shall be paid by the involved Transferee to Benetton Sportsystem USA Inc. on June 30 of each year as from 2004 on the basis of Rollerblade Turnover as realized during the previous financial period.
In order to determine the Know How Value the Purchaser shall communicate to Benetton the Turnover of Rollerblade realized during the previous financial year not later than March 31 of each year, providing this data together with the necessary account details, listed by country and type of products.
Within April 30, with a week notice, Benetton shall have the right to access the accounting documents of the Purchaser and/or the Transferees and and/or their subsidiaries in order to check, through its delegates and consultants, the precision of the Rollerblade Turnover and of the determination of the Know-How Value.
In the event, after the checks or if Benetton had not exercised the right to carry out the checks, Benetton and the Purchaser will not reach an agreement on the determination of Rollerblade Turnover, the Auditing Company shall determine it with binding effect for the Parties upon the request of the most diligent Party, which shall be presented not later than May 31.
In the event, for any reason, the definitive determination of the Know How Value has not yet been reached on June 30, the Purchaser, or the Transferee, shall provisionally pay the Know How Value as communicated to Benetton pursuant to Article 3.3 above, and shall pay the possible compensatory amounts, plus the accrued interests on the basis of the six moths Eurobor rate with a spread of 2% as from June 30, not later than five Working Days from the date in which the Know How Value will be definitively determined.
In the event the Purchaser disposes of the Business (e.g., assignment, contribution, lease) during the period between the Closing Date and June 30, 2008, the Purchaser undertakes to provoke that the assignee will expressly and in advance assume in respect to Benetton all the obligations set out in Article 3, subsections 2 to 7, without prejudice to the joint responsibility of the Purchaser; moreover, if the disposal takes place in favor of parties outside Tecnica Group (considered as the subsidiaries of a common holding company pursuant to the provision of Article 2369, n. 1 of the Italian Civil Code), Benetton shall be entitled to receive, as a Know How Value for each year or portion of year, a minimum amount equal to the Know How Value accrued during the last period before the disposal (however not less than the guaranteed amount as set out in the following Article) in relation to the period following the disposal and within the above mentioned period.
In the event, on the date of payment of the Know How Value referred to the year 2007, the Know How Value totally paid to the Sellers by the Purchaser will be less then the amount of Euro 5.000.000,00, the Purchaser undertakes to pay to the Sellers - as a minimum guaranteed amount of the Know How Value - the difference between the amount of Euro 5.000.000,00 and the amount already paid in the meantime to the Sellers as Know How Value, being understood that there is no maximum limit to the Know-How Value. The amount due as a difference between Euro 5.000.000.,00 and what has already been paid in the meantime to the Sellers as the Know How Value shall be paid not later than June 30, 2008.
The Sellers, with the consent of the Purchaser, shall draft the Assets and Liabilities Statement as for May 31, 2003, of Benetton Sportsystem Schweiz AG, on the basis of the IAS accounting principles (International Accounting Standards) in accordance with those adopted by the Swiss company, highlighting the net assets and liabilities. If no agreement is reached, the Assets and Liabilities Statement will be drafted by the Accounting Company upon the request of the most diligent part, not later than thirty days from the mandate.
Benetton and the Purchaser shall agree, complying with the civil and fiscal laws, the allocation of the Price to each element of the Business (and without any relevance for the purpose of this Framework Agreement); if no agreement is reached the allocation shall take place on the basis of the Closing Assets and Liabilities Statement.
Benetton and the Purchaser, each to the extent of its responsibilities, shall divide the Price respectively collected and paid pursuant to this Framework Agreement, among the Sellers and the Transferees respectively, as appropriate.
After 120 days from the Closing Date, the Parties shall procure to make all necessary payments in order to settle the following positions, to the extent to which they are not taken into account in the Closing Assets and Liabilities Statement and/or this Framework Agreement:
Payments effected by the Sellers before the Closing Date, to the extent such payments are consideration for services received or goods purchased after the Closing Date.
Payments effected by the Transferees after the Closing Date, to the extent such payments are consideration for services received or goods purchased prior to the Closing Date.
Payments received by the Sellers before the Closing Date, to the extent such payments are consideration for services rendered or goods sold after the Closing Date.
Payments received by the Transferees after the Closing Date, to the extent such payments are consideration for services rendered or goods sold prior to the Closing Date.
In the event the Parties are in disagreement regarding the above adjustments not later than 30 days, the adjustments shall be determined by the Auditing Company, upon request of the more diligent Party not later than 30 days from the mandate.
All payments that the Purchaser shall make to Benetton or to the party will be indicated in writing, shall be deemed successful and, unless otherwise indicated, shall be effected by bank transfer of the amount due, with cleared currency, on the current account indicated by Benetton in writing before the Closing Date. All the payments of Benetton to the Purchaser pursuant to this Framework Agreement shall be effected by bank transfer, with cleared currency on the current account indicated by the Purchaser in writing before the Closing Date.
4. INTERIM PERIOD
Benetton undertakes to carry out, and to provoke the other Sellers to carry out the Business during the Interim Period in the ordinary course and consistently with the practices adopted up to the date on which this Framework Agreement is signed, unless otherwise agreed in writing with the Purchaser.
During the Interim Period, the Purchaser undertakes to constitute, in each Jurisdiction where it is considered necessary, a subsidiary or a branch to be used as a Transferee for the elements of the Business located in such Jurisdiction, with timing and methods ensuring that such Transferee will have the capability, pursuant to the laws of such Jurisdiction, to receive the elements of the Business on the Closing Date.
Unless otherwise provided by this framework Agreement, in the event authorizations or third party consents are required for the transfer of some elements of the Business, the transfer of the Participation, the Moulds 2003 and/or the Moulds 2004, Benetton shall endeavor to obtain any consent or authorization during the Interim Period. However, it is hereby agreed that the Sellers and the Transferees shall proceed with the Closing even if such consent or authorization is not obtained by the Closing Date, and the elements of the Business which require third party consent or authorization for the purpose of the transfer shall be transferred subject to the grant of the consent or authorization, without the Sellers bearing any liability for the failure to transfer and without any reduction of the Price in case of denial of the consent. The parties shall consult if third party consents are required.
Benetton undertakes to ensure that all the contracts inside the group related to the Business shall end as from the Closing Date, with the exception of the provisions of the Supply of Services Contract.
5. CONDITIONS TO THE CLOSING
The Parties obligation to proceed with the transfer of the elements which comprise the Business in each Jurisdiction shall be conditional on the satisfaction of any further conditions precedent which may be provided under the laws of each Jurisdiction, expressly excluding any anti-trust authorization that may be necessary in any Jurisdiction, which will be subject to the following provisions of this Article 5.
The Parties mutually undertake to use their best efforts, and to procure that the other Sellers and the other Transferees use their best efforts, to provoke that the conditions precedent to the Closing in each Jurisdiction shall be satisfied during the Interim Period. For this purpose the Parties also undertake to co-operate, and to procure that the other Sellers and the other Transferees co-operate, so as to immediately implement, and procure that the other Sellers and the other Transferees immediately implement, all necessary activities for which they are responsible and which are prerequisites to obtain the necessary authorizations and to satisfy any requirement under law.
The Purchaser and Benetton acknowledge the agreement that, in their relations, the issuance of the permit or the anti-trust authorization for the overall operation of this Framework Agreement or for single part of it (i.e. the transfer of elements of the Business in each Jurisdiction) will not constitute essential condition to their obligations pursuant to this Framework Agreement. The purchaser undertakes to assume both the risk of the possible refusal of the authorization and the performance of the prescriptions that the competent anti-trust authority should impose as a condition to grant the permit or the authorization to the operation as a whole or to each part of it.
As a consequence, it is expressly agreed that, when allowed by the applicable anti-trust laws, the Closing shall take place pursuant to the following Article 5 even if the procedure for the issuance of the permit or the authorization is not yet concluded. It is duty of the Purchaser and the other Transferees to comply with the requirements set by the competent antitrust authority, holding Benetton and the other Sellers harmless and indemnified.
In the event that on the Closing Day the conditions precedent required by law had not yet occurred or the applicable law did not allow enable the Closing before the permit or the antitrust authorization were granted, the Closing in such Jurisdiction or Jurisdictions will be delayed until the date the condition precedent required by law occurs or until the permit and the antitrust authorization is granted, without prejudice to Benetton's right to receive and collect on the Closing Date the entire amount to be paid pursuant to Article 3.1.1. and the other provisions of this Framework Agreement. After the Closing Date and until the date on which the Closing can actually be finalized, the element of the Business concerned by the delay will be managed by Benetton and the other Transferees as long as it is possible and permitted by the applicable laws, on the basis of the directions of the Purchaser, and the results of such management shall benefit, and shall be borne by, the Purchaser and the involved Transferees.
If any of the conditions precedent required by law do not occur in a Jurisdiction (without prejudice for the antitrust authorizations mentioned in the other subsections of this Article 5) not later then sixty days, then Benetton and the Purchaser shall in good faith negotiate possible alternative solutions with the aim of achieving the conclusion of the transfer of the elements of the Business located in such Jurisdiction pursuant the applicable laws. Any additional burden arising from any such alternative solution shall be borne by the Party to which the failure of the occurrence of the condition precedent can, objectively or subjectively, be attributed, unless the failure of the occurrence of the condition precedent cannot be imputed to any Party, in which case such burden will be shared by the Parties.
In the event the permit or the authorization are definitively refused, the Purchaser shall organize, bearing the cost and the risk, the sale to a third party of the Business or of the elements of it for which the permit or the antitrust authorization has not been granted. Benetton shall be entitled to unbind such business elements in a newly incorporated company and shall keep to manage, or provoke the involved Sellers to manage, such elements in the course of the ordinary administration on behalf of the Purchaser. It is understood that the Purchaser shall refund to Benetton and the involved Transferees any cost and loss they might have encountered or suffered after the Closing Date due to these elements, and shall indemnify Benetton and the involved Sellers for any consequent claim or liability, including possible sanctions.
In the case the Purchaser does not sell to a third party the Business or elements of part of it for which permit or antitrust authorization has not been granted within twelve months from the Closing Date, Benetton shall have the right to mandate a leading investment bank to sell the Business or the involved element; the consideration of this assignment shall be paid to the Purchaser and to the involved Transferee according to the directions of the Purchaser, net of costs, expenses and any amount to be paid to Benetton or to the other Sellers pursuant to Article 5.7.
In the situations considered in the previous Article 5.7 and 5.8 all the obligations of the Purchaser pursuant to this Framework Agreement shall be fully valid and effective according to their terms.
Not later than May 10, 2003, the Parties shall jointly verify the necessary activities to the Closing in each Jurisdiction and shall draft a Closing Memorandum with a view, as long as feasible, to make the Closing take place within the Closing Date on the basis of the terms set out in this Article 6. In case it is not feasible to do so, the Parties undertake to try and reduce the duration of the Closing to the minimum number of days possible after the Closing Date and in any case not more than sixty days. However, it is agreed that at least the Intellectual Property shall be transferred on the Closing Date (save for covenant upon the license agreements, set out in Article 1.4 [sic]), together with the Participation, the Employees and the Moulds 2003 and/or the Moulds 2004, and that the Closing Date for all the aspects of this Framework Agreement, subject to said minimum requirement, will be the date of the beginning of the Closing operations. Once the Intellectual Property has been transferred on the Closing Date, the license agreements concerning the patents and the Licensed Patents shall be signed, as long as within the Closing period.
Subject to the provisions of Article 5 above and pursuant to the provisions of this Framework Agreement, the Sellers and the Transferees shall transfer the Business on the Closing Date by executing and performing the Closing Agreements, carrying out and complying with all formalities, and carrying out any other activity necessary in each Jurisdiction to give full effectiveness to the transfer of the Business and each of its components, as well as to give the Purchaser and the other Transferees full title and availability of the same, and to give the Purchaser and the other Transferees physical and actual possession of all the assets comprising the Business in each Jurisdiction.
Furthermore, on the Closing Date the Parties shall, at the same time, perform the following activities:
The Purchaser shall pay to Benetton the amount set under Article 3.1.1;
Benetton Sportsystem USA Inc. shall transfer the Know How to the Purchaser, which will issue a receipt;
The Parties shall procure the execution of the Supply of Service Contract;
The Parties shall procure the preparation of a physical inventory of the Inventory;
The Parties shall execute the Trevignano Lease Agreement;
Benetton Sportsystem USA Inc. shall execute the Bordentown Lease Agreement with the Purchaser or the involved Transferee.
All the costs, burdens, and fiscal charges related to the Closing shall be borne by the Purchaser and the involved Transferees, with the exception, however, of the costs of legal and economical competence of the Sellers (such as the commission due to the respective consultants) or the pertaining direct taxes on the transfer object of this Framework Agreement. The cost for the service possibly provided by the Auditing Company, when provided by this Framework Agreement or requested by both Parties with mutual consent, shall be borne by the Parties at a rate of 50% each.
Benetton shall procure that, on the Closing Date, the executive body of Benetton Sportsystem USA Inc. is substituted with a body formed from people appointed by the Purchaser or the involved Transferee.
The Parties hereby agree that the Closing transactions shall begin on the Closing Date in all Jurisdictions in which it is possible to do so, even if in some Jurisdictions it is not possible to carry out the Closing, because of a reason set out in Article 5. or any other reason. The provisions of Article 5 above shall apply to the latter Jurisdictions.
7. LEASE AGREEMENT FOR A FIXED DURATION ON PART OF THE REAL ESTATE OF TREVIGNANO
The Purchaser is aware of the Lease Agreement on part of the real estate property of Trevignano executed between Benetton and the Transferee of Nordica Business, hereby attached in Schedule 10. The Purchaser acknowledges to be fully aware of and to accept - in case it is needed - all the terms and conditions of such agreement, including the put and call rights on the real estate of Trevignano as a whole, as provided by the mentioned lease agreement and the preliminary contract of sale attached to it. On the Closing Date Benetton shall grant a lease for a fixed duration to the Purchaser or the designated Transferee on the warehouse of Trevignano which displays the letter "A" and the so called "racing office" of mq. 576 that constitutes part of the real estate which displays the letter "B1", for a monthly fee of Euro 50.000,00, to be paid in advance monthly installments starting from the date of the beginning of the possession. The remaining part of the lease agreement shall have the conditions similar to those of the lease agreement in Schedule 10, with the appropriate adjustments (except for the put and call clauses and the content of the preliminary contract of sale in the same Schedule). It is hereby agreed that the Purchaser and/or the Transferees shall receive the possession of the leased real estates free from people or goods on the Closing Date, and that the fees paid pursuant to this Framework Agreement shall be deducted from the purchase price of such property in favor of the Transferee of Nordica Business or of the designated third purchaser.
the Lease Agreement shall continue until April 30, 2003. Benetton and the Trasferee of Nordica Business (or the third party to be nominated) shall execute the purchase in notary deed within said date, in the case the put and call rights mentioned above have been activated.
8. LEASING AGREEEMENT FOR A FIXED DURATION ON THE REAL ESTATE OF BORDENTOWN
The real estate of Bordentown (New Jersey), not being part of the Business, shall be left with Benetton Sportsystem USA Inc.. On the Closing Date Benetton Sportsystem USA Inc. shall lease until December 31, 2003 to the Purchaser or the designated Transferee a portion of the estate to be agreed between the Parties and, if an agreement is not reached, to be determined by the Accounting Company upon request of the most diligent party. This portion should not be already in use for by management of the business of Prince and Ektelon trademarks and should be necessary for the management of the Business. The renting fee shall be agreed by the Parties according to the market value and, if an agreement is not reached, to be determined by the Accounting Company upon request of the most diligent Party. The Purchaser acknowledges to be aware that there is no partition between the portion of the estate that will be leased and the rest of the estate, nor a partition will be put in place. Thus, the Purchaser accepts the sharing and non separation of the space that will be leased.
It is understood that, with regard to the Employees, Benetton Sportsystem USA Inc. shall bear the payment obligation of the severance as follows:
- the compulsory severance due to Mr. William Foy shall be borne solely by Benetton Sportsystem USA Inc.
- the cost of possible further severance due to Mr. Foy and to other Employees shall be borne by Benetton Sportsystem USA Inc. for 60% and by the Purchaser and/or the involved Transferee for the remaining 40%.
Benetton Sportsystem USA Inc. shall refund the expenditure incurred by the Purchaser and/or the involved Transferee for this reason not later than thirty days from the pertaining expenditure, net of any possible fiscal contribution. The Parties will endeavour to minimize the expenditure for severance.
Upon request of Benetton, the Purchaser shall collect on behalf of Benetton, directly or through the Transferees, the Receivables pursuant to the terms and conditions of this Article 10.
Benetton and the Transferees shall send out to the debtors of the Receivables a circular communication, confirming that the payment they will make to the Transferees will be valid and will settle their position with Benetton.
The Transferees undertake to use for the collection of the Receivables the same procedure and diligence they used for the collection of their own receivables. In details:
the payment made by the clients shall be attributed to the Receivables and the other trade receivables of the Purchaser or the Transferees on the basis of the strict chronological order of the invoices;
the Transferees shall not further supply the clients that are in default of the payment of the Receivables on the time of payment as long as such default is solved, unless the Transferee will otherwise, according to good faith, assess the situation according to their own practice;
the Transferees shall ensure the diligent undertaking of legal action to recover the Receivables in accordance with the time and manners of their own procedures (i.e. the transfer to the council indicated by Benetton, in case of default of payment after 30 days from the third debt-collection letter).
The Transferees undertake to transfer to Benetton all the amounts collected because of the Receivables, in the same currency of the collection and without delay (except for the technical time taken for the bank transfer).
It is agreed that Benetton shall refund to the Transferees the costs (except for the general costs and the internal costs of the Purchaser and/or the Transferees) carried by the Transferees to provide the collection of the Receivables pursuant to this Article 10 following the presentation of appropriate documental proof.
At any time Benetton shall have the right to take over the Purchaser and/or the Transferees in the activities of collection and/or the procedures for the recovery of the whole or part of the Receivables. In such case, the Transferees undertake to perform the necessary activities for the take over of Benetton (e.g., communication to the debtors of the pertaining Receivables).
On the Closing Date the Parties shall draft, or shall endeavor to draft, a physical inventory of the Inventory pursuant to Schedule 9 and shall determine the Inventory Value pursuant to Schedule 9.
In the event the Parties disagree on the determination of the Inventory Value, such determination shall be made by the Accounting Company upon request of the most diligent Party, applying the criteria of Schedule 9 and on the basis of the physical inventory drafted on the Closing Date pursuant to Article 11.1. The Accounting Company shall give its determinations, which will be definitive between the Parties, with exception of the case of material mistake, not later than thirty days from the date of the mandate.
The Purchaser undertakes to pay to Benetton the Inventory Value, as follows:
within 120 days from the date of the invoice(s) of the sale of the Products included in the Inventory as resulting from the lead schedule mentioned below, the Purchaser shall pay to Sellers the Inventory Value for the part relative to the Products object of each invoice, from time to time.
Within and not later than December 20, 2003, the Purchaser shall pay to the Sellers the Inventory Value still unpaid on this date, net of the Liabilities of unknown amount on the Closing Date.
Within the first 15 days of each month, commencing July 2003 until November 2003, the Purchaser shall communicate to the Sellers a lead schedule of the sales of the inventory made during the previous month (thus, the first lead schedule will cover the sales of the days following the Closing Date).
12. REPRESENTATION AND WARRANTIES
In relation to the circumstances existing on the date of this Framework Agreement and to the circumstances that will exist on the Closing Date, Benetton represents and warrants to the Purchaser the following. Benetton's representations and warranties are limited by the exceptions and qualifications set out in Schedule 11, and by the information made available to the Purchaser as part of the Due Diligence Documents.
Benetton and the other Sellers have full title to the elements composing the Business and have full authority to transfer the same on the basis of the terms and conditions set forth in this Framework Agreement. Benetton and the Sellers have not violated third-party rights, nor violate or will violate rights of third parties, with the signature and the execution of this Framework Agreement, nor have granted to third parties rights or faculties of any nature that might be used because of the assignment of the Participation, which will be transferred, pursuant to this Framework Agreement, completely free, not subject to burden, obligation, charges or third party right of any nature. The Parties have adopted all the necessary resolutions for the authorization of the subscription and execution of this Framework Agreement, in accordance with the terms set herein. This Framework Agreement has been duly signed and the obligations contemplated in it are valid and binding for Benetton and the Sellers.
The Participation, the Moulds 2003, the Moulds 2004, the Inventory and the Intellectual Property are free from any mortgage, pledge, right of option, nor third party has formalized any claim of entitlement.
The Sellers have substantially complied with all applicable provisions of law and collective labor agreements, organizational or individual, in their relationships with the Employees. The Sellers have regularly paid all the mandatory contributions due and have complied with the relevant regulation on insurance and social security. The Business is not responsible for the consultancy contracts, participation in association, profit and loss sharing and similes, nor brokerage contracts, business procurement and similes.
While managing the Business, the Sellers have substantially complied with all applicable provisions of law on the environment, and on safety in the workplace, and the Sellers have not received any notification of orders issued by any competent authority or proceedings claiming violations of applicable laws or regulations, any of these is expected.
The Sellers have correctly complied with the fiscal and tax obligations to which the Business is subject, submitting the required statements and application and making all payments required pursuant to the same. The Business has no fiscal or tax obligation other than those for which an appropriate reserve has been transferred as a part of the Business.
The Trademarks and the Patents have been registered by the Sellers and the registration taxes due prior to the Closing Date have been paid; as far as the Sellers know, no objections or challenges have been made by any third party regarding the validity or effectiveness of such Trademarks or Patents, nor regarding the exploitation of such Trademarks and Patents by the Sellers. Licenses to use the Trademarks or Patents have not been granted to third parties, except for those indicated in Schedule 4. However, it is expressly understood that the Sellers do not warrant the validity and effectiveness of the Trademarks and of the Patents, nor the successfulness of the applications of registration filed.
There are no judicial, fiscal, administrative litigations or arbitration, each with a value above Euro 50.000.00, or altogether with a value above Euro 250.000,00, which are transferred with the Business or in which the Business is a necessary party.
There are no patronage letter or similes in favor of the Business.
There are no contracts in course of execution for the purchase of raw materials, semi-processed, accessories, supplies or facilities which are not commonly used for the particular activity of the Business.
The Contracts existing with agents and distributors are all indicated in Schedule 4
No epidemic defects of the Products have occurred during the financial period 2000, 2001 and 2002, which, according to the applicable law, would have resulted in the obligation to notify or to call back the Products, nor have the Products ever been called back.
Benetton Sportsystem Schweiz AG (hereinafter referred to as "AG") has been duly incorporated and never subject to any bankruptcy procedure; AG has n. 17 employees as listed, with mention of their titles and salaries, in Schedule 12. The Purchaser and/or the involved Transferee acknowledges that Benetton will provoke the end of the contract and the relation of distribution for Prince and Ektelon trademarks before the Closing Date, without any burden on AG. The accounting documents of AG have always been drafted according to the relevant law, and AG's financial statement of December 31, 2002, has been and will be drafted on the basis of the legal provisions and the accounting principles, applied in conformity with the criteria used to draft the previous financial statements and it reflects the real patrimonial, economic and financial position as well as AG's turnover on the date of adoption of the financial statement. On the Closing Date, AG will not have any pending liability, current or potential, apart from those indicated on the financial statement of December 31, 2002, except for those incurred after the date of such statement as part of the normal and ordinary activity of AG after such date. Benetton warrants the collection of the receivables indicated among the profits of the mentioned statement or otherwise existent on the Closing Date. In the event that after 12 months from the Closing Date such receivables had not been completely collected, the Purchaser shall be entitled to sell to Benetton such receivables for a price equal to their nominal value, net of the amount of the receivables depreciation fund as resulting from the Asset and Liability Statement of May 31, 2003. The Purchaser or the involved Transferee shall adopt, using the best diligence, every action for the safeguard and the recovery of the receivables. The provision of Article 10.5 shall apply to the costs, with the appropriate adjustments. Furthermore, with regard to the Participation the Sellers also warrant the provisions of the Articles from 12.1.3. to 12.1.10, as long as applicable and with the appropriate adjustments. The provision of the following Article 13 shall apply to the possible non operating losses and related indemnification obligations, with the appropriate adjustments.
In relation to the circumstances existing on the date of this Framework Agreement and to the circumstances which will exist on the Closing Date, the Purchaser represents and warrants to Benetton the following:
The Purchaser has adopted all the necessary resolutions for the purpose of the authorization of the signature of this Framework Agreement and its execution, also by all the other Transferees, pursuant to the terms hereby set forth. This Framework Agreement has been duly signed and the obligations contemplated in it are valid and binding on the Purchaser.
The Purchaser and the other Transferees are not aware of any circumstance which constitutes a breach of Benetton' s warranties and representations under Article 12.1 above.
The Purchaser and the Transferees undertake to erase for the denomination of AG, not later than 30 days from the Closing Date, any reference to the name "Benetton" and to the expression "Sportsystem".
The Purchaser acknowledges and agrees that the warranties and representations under Article 12.1 above are the only warranties made by Benetton and the other Sellers. No other warranty of any other kind is made by the Sellers in relation to the Business, except for any additional warranty mandatory under law, to which the limitations and conditions set out in Article 13 below will apply. Moreover, the above representations and warranties and the additional warranties mandatory under law replace any other right or remedy the Purchaser has under law, and thus the Purchaser recognizes that it is not entitled to bring forth any claim other than a request for indemnification pursuant to the terms and conditions set out in Article 13 below.
13. INDEMNIFICATION OBLIGATION
Benetton undertakes to hold harmless and indemnify the Transferees against and for any Loss the Transferees may incur as a direct consequence of the breach of the warranties and representations set out in Article 12.1 or of the breach of any of the additional warranties mandatory under law, at the terms and conditions set out in this Article 13
Furthermore, Benetton shall indemnify the Purchaser, in accordance with the terms and conditions set out in Article 13, for the possible sanctions imposed by the competent antitrust authority in relation to the operation object of this Framework Agreement as well as for the other damages the Purchaser might suffer because of antitrust procedure, in the event that such sanctions or damages are the consequence of Benetton's communication of false and/or incomplete data as answer to the requests of the Purchaser concerning the analysis of antitrust issues. The requests of the Purchaser and the communication of Benetton are set out in Schedule 13.
Benetton will not have an obligation to indemnify in relation to:
breaches of representations and warranties notified by the Purchaser after June 30, 2004, except for representations and warranties relating to fiscal or social security contribution matters, any breach of which may be notified within thirty days following the expiration of the relevant statute or term of limitation;
losses arising from circumstances set out in Schedule 11 or in the Due Diligence Documents. It is understood that the Due Diligence Documents shall have such exceptional effect only if the information provided to the Purchaser in such context are reasonably adequate, using ordinary diligence, to consciously assess the existence of the related risk;
claims based on different evaluations and/or less profits and/or claimed false application of the accounting principles in relation to the posting of the Estimated Asset and Liability Statement and the Closing Asset and Liability Statement, being understood that such Statements have only a conventional value and are destined to the orderly transfer of the Business.
The indemnification due by Benetton to the Transferees pursuant to Article 13 shall be equal to the Loss incurred by the Transferees, net of:
any possible reserve and fund transferred to the Purchaser as a part of the Business, up to the clearance of each of them;
any fiscal benefits relative to the Loss, given that the Purchaser fulfills the conditions for their use;
any indemnification or reimbursement paid by insurance companies or any third party in relation to the Loss;
any non operating profit recorded by the Business in relation to the Closing Asset and Liability Statement as a consequence of facts and circumstances previous to the Closing Date.
Benetton shall not have the obligation to indemnify if:
the indemnification due in relation to each Loss is less than Euro 5.000,00 per Loss;
the total indemnification due (not taking into account the amounts which are less than the threshold amount set out above in Article 13.5.1) is less than Euro 493.392,00, amount that shall be considered a fixed deductible, so that if the total indemnification due exceeds such deductible, Benetton shall indemnify only the amount in excess of such deductible;
the total indemnification due by Benetton (after the fixed deductible has borne the claims up to its clearance) exceeds an amount equal to Euro 2.302.500,00, which shall be considered the maximum and final ceiling of the indemnification obligation of Benetton and the other Sellers.
The Purchaser shall notify Benetton - within 20 days from the date on which the Purchaser acquires such knowledge (and for this purpose knowledge by any Transferee shall be deemed to be knowledge by the Purchaser) and in the event there are terms for the limitation of the actions to challenge the circumstances originating the Loss, not later than half of the term of limitation, any circumstance which constitutes a breach of the representation and warranties set out in Article 12.1 above, or a breach of any additional warranty mandatory under the law, that might lead to an indemnification of the Loss. The notice shall include a clear description of the breach being notified and the potential consequences of such breach, and shall be submitted along with any document suitable to allow Benetton to fully understand such report.
Upon receiving the Purchaser' s notice and at any other subsequent time, Benetton will have the right to take over management of the notified matter, taking any necessary action, including judicial action, to dispute or limit the breach and/or the Loss, without prejudice to the fact that, under the penalty that Benetton shall lose the duty to indemnify, in such case the Purchaser shall fully co-operate with Benetton to such effect, signing all necessary deeds and powers of attorney that Benetton may request, and allowing Benetton full access to all documents and information which may be necessary to Benetton for such purpose.
If Benetton decides not to exercise such faculty the Purchaser shall have the obligation to do all necessary, with the due diligence, to dispute such violation and/or mitigate the Loss, without prejudice to the fact that, under the penalty that Benetton shall lose the duty to indemnify, the Purchaser or the Transferees shall not have the right to waive any claim or objection, settle any judicial controversy, agree to any third party request, or admit its responsibilities without Benetton's prior written consent. .
Any indemnification due by Benetton shall be paid when the Loss is actually borne by the Purchaser or the Transferees on the basis of a valid execution order, even if provisional, provided however that, if, following a payment made on the grounds of a provisional order, the Purchaser or the other Transferees become entitled, due to any appeal or amendment rulings, to the reimbursement in whole or in part of the amounts due, such right should be assigned to Benetton or, where such assignments were not possible, the right shall be exercised by the Purchaser or by the Transferee concerned on behalf and at expense of Benetton.
The Purchaser undertakes to hold harmless and indemnify Benetton against and for any Loss borne by Benetton or the Sellers as a consequence of the breach of the Purchaser's representation and warranties set out in Article 12.2 above, and against and for all third party claims in relation to the Liabilities to the extent that they were taken into account for the calculation of the Variable Component or other liabilities pertaining to the Business arising after the Closing.
14. RESPONSIBILITY FOR THE PRODUCTS BEFORE THE CLOSING DATE
Benetton undertakes to hold the Purchaser indemnified for the costs and losses the Purchaser should bear in relation to third party claims related to products manufactured and/or purchased by the Business before May 31, 2003. The Parties agree that in relation to the mentioned products which are included in the Inventory, the loss for returned merchandise can not exceed the evaluation of such product carried pursuant to this Framework Agreement (save for the civil responsibility toward third parties). For this purpose the Purchaser undertakes to communicate without delay to Benetton any claim third parties should bring for this reason, so that Benetton can take the necessary activities in due time.
Departing from the precedent provision, with sole regard to the returned merchandise of the skates model "Aero", made by clients not later than November 30, 2003 because of manufacturing defects, Benetton undertakes to grant to the Purchaser a refund ascertained in conformity with the criteria of Schedule 14. The provision of Article 14.1 shall apply to the claims of third parties in relation to skates model "Aero" that are different from those mentioned by this Article 14.2.
The Purchaser, under the penalty that Benetton shall lose the duty to indemnify pursuant to Article 14.2, undertakes to communicate without delay to Benetton the claims to return the skates, supplied with the closing system similar to the one used for the sky boots Smartech, due to manufacturing defects and to consult with Benetton on the activities to minimize the Benetton's burden pursuant to Article 14.2 above.
In no instance will the Purchaser be allowed to accept the returns object of the warranty set out in Article 14.1 without the prior written consent of Benetton, which will be considered as granted in case it will not be denied within ten Working Days from the receipt of the claim.
The limitation and procedures set out in Article 13 will not apply to the indemnifications due pursuant to this Article 14.
Any notice or communication to be effected in relation to this Framework Agreement shall be made in writing, sent by registered mail with return receipt requested, and may be transmitted by telegram or facsimile in advance, and it will be effective at the time of receipt of the registered mail with return receipt requested.
Any notice or communication shall be sent to the following addresses:
15.2.1. if to the Purchaser:
Prime Newco S.r.l.
Piazza Filodrammatici, 1
31100 - Treviso
Fax No. 0039 0422 412263
Attention of the legal representative
With copy to:
Via Fante d'Italia n.56
31040 Giavera di Montello (TV)
Attention of the legal representative
Fax n.: 0039 0422 775178
And copy to:
Avv. Renzo Maria Morresi
Piazza Filodrammatici, 1
Fax n.: 0039 0422 571942
15.2.2 if to Benetton:
Benetton Group S.p.A.
Ponzano Veneto (TV), Italia
Attention of the Managing Director
Fax n.: 0039 0422 519994
With copy to Affari Legali
Fax n. 0039 0422 519586
It is expressly agreed that any communication addressed to the parties to the address above shall be deemed received at the time it is actually received at such address. Any amendment to the above addresses shall be not enforceable unless notified in writing by the interested Party.
Benetton and the Purchaser acknowledge that the contents of this Framework Agreement are highly confidential, and mutually undertake not to disclose such contents to any third party without the prior written consent of the other Party.
Except for any notice, mandatory under the law, or any regulation issued by any governmental, supervisory, or stock exchange authority which governs the Transferees or the Sellers, no other advertisement, press release or any other announcement shall be made regarding the execution of the Framework Agreement, the provisions contained herein, or the transactions provided for hereunder, without the prior written consent of both Parties.
Benetton undertakes for a period of 36 months after the Closing Date, whether directly or indirectly (including without limitation, activities carried out through companies, associations, joint ventures, or similar vehicle associations) not to carry out any activity which may be considered in competition with the activity carried out by the Purchaser in the sole sector of the manufacturing and marketing of Products. Goods similar to the Products (as long as they are not rollerblades) will not be considered in competition with the Products if they display trademarks different from the Trademarks and as long as they are not sold in direct relation with the sale of rollerblades.
18. MISCELLANEOUS PROVISIONS
Any amendment to this Framework Agreement shall be made in writing, signed by all the Parties thereto.
This Framework Agreement is binding and shall inure to the benefit of the Parties and their respective successors in interest and assignees for any reason, which shall consequently be bound by all provisions contained in this Framework Agreement.
If one or more clauses of this Framework Agreement are deemed invalid, it shall not affect the validity of the other clauses, or that of this Framework Agreement as a whole.
This Framework Agreement and the Schedules hereto constitute the totality of the agreements and covenants between the Parties and supersede any other prior written or oral agreement, covenant, or accord.
Tolerance, even if repeated, by any Party of any default or delayed performance by the other Party shall never be interpreted as a tacit abrogation of the corresponding covenant, or as a waiver by the non-defaulting Party of the right to enforce its rights.
The headings in this Framework Agreement are solely for ease of reference and shall not affect its interpretation.
19. GOVERNING LAW AND JURISDICTION
This Framework Agreement and all its related and ancillary contracts and agreements are governed by Italian law, except for the implementing contracts, which are governed by the applicable law in the respective Jurisdictions, except as expressly provided in Articles 2.4 and 2.5 [sic] above.
Any dispute regarding the validity, interpretation or execution of this Framework Agreement and all the contracts related or connected to it, including the closing contracts, shall be settled through ritual arbitration based on equity in accordance with the settlement and arbitration rules of the Chamber of Commerce of Milan. The place of the arbitration shall be Treviso. The Parties undertake to insert in each contract that the Sellers and the Transferees will enter into to implement this Framework Agreement an arbitration clause consistent with this Article 19.2. For the purpose of the procedure of the arbitration all the Sellers are deemed to be a single party as well as all the Transferees are deemed to be another single party.
PRIME NEWCO S.R.L.
Source: OneCLE Business Contracts.