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UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, DC 20549 |
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FORM 8‑K/A
(Amendment No. 1)
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CURRENT REPORT
Securities Exchange Act of 1934
Date of report (Date of earliest event reported ) June 29, 2011 |
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MANITEX INTERNATIONAL, INC. (Exact Name of Registrant as Specified in Its Charter)
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Michigan |
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001-32401 |
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42-1628978 |
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(State or Other Jurisdiction of Incorporation) |
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(Commission File Number) |
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(IRS Employer Identification No.) |
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9725 Industrial Drive, Bridgeview, Illinois |
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60455 |
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(Address of Principal Executive Offices) |
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(Zip Code) |
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(708) 430-7500 |
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(Registrant’s Telephone Number, Including Area Code)
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(Former Name or Former Address, if Changed Since Last Report)
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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: |
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o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
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EXPLANATORY NOTE
Manitex International, Inc. (the “Company”) is filing this Amendment No. 1 on Form 8-K/A to the Company’s Current Report on Form 8-K dated June 29, 2011, which was originally filed on July 6, 2011 (the “Original 8-K”), to update disclosures made under Item 1.01 and provide exhibits under Item 9.01(d).
Item 1.01 Entry into a Material Definitive Agreement.
As previously reported in the Original 8-K, in connection with the purchase of assets of C.V.S. Costruzione Veicoli Speciali S.p.A. in Liquidazione e Concordato Preventivo (“CVS SpA in Liquidation”), the Company entered into a series of agreements that include (1) A Purchase Agreement with CVS SpA in Liquidation, (2) an agreement with Cabletronic srl to secure the software and electronic know-how currently used to manufacture and operate the products being acquired and (3) an agreement with CVS SpA in Liquidation to rent and to possibly acquire the building in which CVS Ferrari srl operates. English summaries of the forms of these agreements are attached as Exhibits 2.1, 10.1, and 10.2. The aforementioned agreements were not included in the Original 8-K.
Except for the foregoing, this Amendment No. 1 does not amend the Original 8-K in any way and does not modify or update any other disclosures contained in the Original 8-K. This Amendment No. 1 supplements and does not supersede the Original 8-K. Accordingly, this Amendment No. 1 should be read in conjunction with the Original 8-K.
Item 9.01 Financial Statements Exhibits.
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(d) |
Exhibits. |
See the Exhibit Index set forth below for a list of exhibits included with this Current Report on Form 8-K.
Signature
Pursuant to the requirements of the Securities Exchange Act of 1934, the Company has duly caused this report to be signed on its behalf by the undersigned thereunder duly authorized.
Date: August 8, 2011
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MANITEX INTERNATIONAL, INC. |
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By: |
/s/David H. Gransee |
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Name: |
David H. Gransee |
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Title: |
Vice President & Chief Financial
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EXHIBIT INDEX
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Exhibit
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Description |
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2.1 |
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English Summary of Form of Agreement for Sale of Company Division dated June 27, 2011 between C.V.S. Costruzione Veicoli Speciali S.p.A. and CVS Ferrari srl. |
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10.1 |
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English Summary of Form of Agreement for the Provision of Goods dated June 29, 2011 between CVS Ferrari Srl and Cabletronic srl. |
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10.2 |
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English Summary of Form of Letter Agreement dated February 11, 2011 between C.V.S. Costruzione Veicoli Speciali S.p.A. and CVS Ferrari srl . |
Exhibit 2.1
AGREEMENT FOR SALE OF COMPANY DIVISION
Between:
- " C.V.S.*Costruzione Veicoli Speciali S.p.A." also named " C.V.S.-S.p.A.", in liquidation and subject to composition with creditors, with a registered office address at No 20/22 Via Emilia, Frazione Roveleto, Cadeo (PC), a single-member company with share capital of EUR 6,350,000 (six million three hundred and fifty thousand) fully paid up, Tax ID and Piacenza Companies Registry No XXXXXXXXXXX, Economic and Administrative Index No XXXXXXXX, represented by the Court-appointed liquidator Avv. Giorgio REGGIANI, born in XXXXXXXXXXX on XXXXXXXXXXXXX and with a registered address at XXXXXXXXXXXXXX, Tax ID XXXXXXXXXXX, appointed on 8 June 2011 by the Court of Piacenza, authorized to act for the present purposes by the Meeting of Creditors pursuant to Article 182 of Italian Royal Decree No 267/1942 by virtue of a letter issued on today 27 June 2011,
(hereinafter the “Seller” ),
and
- “CVS FERRARI SRL”, with a registered office address at Via Emilia snc, Località La Favorita, Frazione Roveleto, Cadeo (PC), a company with share capital of EUR 10,000 (ten thousand) fully paid up, Tax ID and Piacenza Companies Registry No XXXXXXXXXXX,
Exhibit 2.1 - Page 1
represented by the Chairman of the Board of Directors and as such its legal representative Mr Andrew Michael ROOKE, born in XXXXXXXXXXXXXXXX on XXXXXXXXXXXXXX, with an address for the present purposes at XXXXXXXXXXXXXXXXXX, Tax ID XXXXXXXXXXXXXX, a UK citizen, duly empowered by virtue of the resolution recorded in the minutes of the meeting of the Board of Directors of the said company on 23 June 2011, ( hereinafter the “Buyer”).
WHEREAS
A ) Decision No 6/10 RCP of 7 July 2010 of the Court of Piacenza placed the company "C.V.S.*Costruzione Veicoli Speciali S.p.A." in liquidation and subject to composition with creditors pursuant to Article 160 of the Italian Insolvency Law, appointing Dott. Maurizio Boselli as Deputy Judge and Dott.ssa Daniela Savi as Receiver.
B ) By decision of 8 June 2011, entered into the Court Registry on 13 June 2011, the Court of Piacenza approved the composition with creditors of "C.V.S.*Costruzione Veicoli Speciali S.p.A." in liquidation, appointing as liquidator of company assets Avv. Giorgio Reggiani with a registered address at No 28 Via Sant’Eufemia, Piacenza.
C ) The company "C.V.S.*Costruzione Veicoli Speciali S.p.A.",
Exhibit 2.1 - Page 2
now subject to composition of creditors, is the owner of an enterprise with a registered office address at No 20/22 Via Emilia Parmense, Frazione Roveleto, Cadeo (PC), consisting of an industrial complex made up of equipment and machinery, plants, office furniture and equipment, vehicles, know-how and patents, organised for the activity of building and leasing of special machinery for the movement of loads and other functions.
D ) Part of the said company is leased out to the "CVS FERRARI SRL" company (specifically, the division of the company manufacturing equipment for moving loads) by virtue of the leasing agreement signed and authenticated by the Notary Dott. Carlo Brunetti on 29 June 2010, Protocol No 36667/12705, publicly registered in Piacenza on 21 July 2010 under No 6715 Series 1T, in force until 1 July 2012 and subject to an annual lease payment of EUR 120,000 (one hundred and twenty thousand).
E ) Clause 15 of the said leasing agreement provides for an undertaking on the part of the lessee "CVS FERRARI SRL", valid for the full term of the leasing agreement, to buy the division of the company leased, by virtue of a letter of intent dated 11 February 2011 sent by "CVS FERRARI SRL" to "C.V.S.*Costruzione Veicoli Speciali S.p.A.", and reading as follows:
Exhibit 2.1 - Page 3
“the lessee hereby undertakes irrevocably to buy all of the lessor company under this agreement (including all designs, calculations, plans, manufacturing schedules, software, manuals and all material involved in the production of mechanical and electrical parts of CVS machinery and the electronic systems involved in the control and working thereof) for a total price of EUR 2,800,000 without deductions for the lease payments made prior to the deed of assignment, and including tangible fixed assets as described in the attached list for a total of EUR 1,200,000. The sum of EUR 2,800,000 shall be paid over 36 months in six monthly instalments without accrual of interest, the first instalment secured with an existing bank guarantee until its expiry, to be subsequently renewed to cover the remainder of payments under the instalment plan. All of the foregoing shall be on condition of approval of composition with creditors as requested by CVS SPA and the effective sale of the enterprise to our company”.
F ) The said condition was fulfilled on 8 June 2011 when the Court of Piacenza issued approval of composition with creditors for the company "C.V.S.*Costruzione Veicoli Speciali S.p.A.".
G ) The parties therefore intend to transact the proposed sale in accordance with terms and conditions agreed.
Exhibit 2.1 - Page 4
IT IS NOW HEREBY AGREED THAT
1 ) The recitals shall be considered an integral part of this agreement.
2 ) The company "C.V.S.*Costruzione Veicoli Speciali S.p.A." in liquidation and subject to composition with creditors, represented by Court-appointed Liquidator Avv. Giorgio Reggiani, authorised as stated in the recitals, hereby sells with effect as of 1 July 2011 to the company "CVS FERRARI SRL" which, represented as stated above, buys the division of the company of "C.V.S.*Costruzione Veicoli Speciali S.p.A." in liquidation and subject to composition with creditors in the manner and subject to the terms and conditions specified in the following:
2–01) Tangible fixed assets
In view of the fact that CVS Ferrari SRL has made an undertaking to buy the tangible fixed assets to the value of EUR 1,200,000 (one million two hundred thousand), the parties by common accord hereby specify the assets covered by the present sale, based on to the expert appraisal of assets by Ing. Roberto Skabic dated 4 November 2010 filed in the procedure of composition with creditors.
In regard to the said appraisal by Ing. Skabic and in particular to the summary of findings shown on page 13 of the report, the tangible fixed assets sold under the present
Exhibit 2.1 - Page 5
agreement are those identified under sub 5/A and exclusively under the heading “General manufacturing equipment” with a total valuation of EUR 527,606 (five hundred and twenty seven thousand six hundred and six) [thus excluding assets listed in the following categories: overhead cranes and jib cranes, built-in equipment] and those identified under sub 5/B and exclusively under the heading “General manufacturing equipment” with a total valuation of EUR 673,047 (six hundred and seventy three thousand and forty seven) [thus excluding assets listed in the following categories: overhead cranes and jib cranes, built-in equipment], yielding a total valuation of EUR 1,200,653 (one million two hundred thousand six hundred and fifty three) approved by the Parties despite being 653 (six hundred and fifty three) Euro higher than the purchase offer made by "CVS FERRARI SRL".
The Parties also hereby acknowledge that, despite being included in the appraisal by Ing. Skabic, assets held under leasing contracts and/or loan for use agreements shall be excluded from the sale since they are not the property of the Seller "C.V.S.*Costruzione Veicoli Speciali S.p.A."; the same shall apply to assets specified in the same appraisal as building accessories.
The sand blasting chamber specified in the appraisal by Ing. Skabic under No 54 annex A3C shall however be understood as
Exhibit 2.1 - Page 6
included in the sale since it was wrongly believed to be subject to a leasing agreement but was in fact the property of "C.V.S.*Costruzione Veicoli Speciali S.p.A." and shall thus be assigned to "CVS FERRARI SRL" under the present agreement.
Tangible fixed assets shall include the tractor identified as asset No AC008000.
2-02) Intangible fixed assets
The following shall be included in the present sale as part of the company division assigned: All designs, calculations, plans, manufacturing schedules, software, manuals and all material involved in the production of mechanical and electrical parts of the machinery and the electronic systems working and controlling the machinery, patents, distinctive signs including the use of the company name, software and licences for the company ITC system, all of which specified by the Buyer in the purchase offer contained in Article 15 of the leasing agreement and the subsequent letter of amendment dated 11 February 2011.
The Seller undertakes to make every possible effort to aid in the assignment of patents held and patents for which applications have been filed to the Buyer who shall pay any associated costs.
The Buyer hereby acknowledges that a portion of the intangible fixed assets indicated above are currently not available to
Exhibit 2.1 - Page 7
"C.V.S.*Costruzione Veicoli Speciali S.p.A." in liquidation and subject to composition with creditors, but are currently available to and held by third parties.
The Buyer also acknowledges that such holders-possessors might refuse to deliver such assets or assert rights over them.
The Buyer assumes full responsibility for this latter eventuality, hereby releasing and holding harmless the Seller from every obligation, objection, or claim arising as a result of the failure to acquire the said assets, and for any claims made against CVS Costruzione Veicoli Speciali SPA in liquidation and subject to composition with creditors should such assets be found to be defective, unsuitable or lacking.
2-03) Registered movables
The present sale includes the following movables forming part of the registered property of "C.V.S.*Costruzione Veicoli Speciali S.p.A." in liquidation:
- commercial vehicle Fiat Auto Doblò number plate CE003AY,(value EUR 3200 (three thousand two hundred));
- commercial vehicle Fiat Iveco Daily number plate DJ306AG,(value EUR 9600 (nine thousand six hundred));
- automobile Fiat Auto Punto number plate CA668ZC, (value EUR 1760 (one thousand seven hundred and sixty));
- automobile Fiat Auto Multipla number plate CS274BH, (value EUR 2000 (two thousand)).
Exhibit 2.1 - Page 8
2-04) Company division accounts payable and receivable
All accounts payable and receivable relating to company business conducted by the Seller "C.V.S.*Costruzione Veicoli Speciali S.p.A." or in any way attributable to that company are hereby expressly excluded from the sale, and shall remain part of the assets and liabilities of that company.
2-05) Current contracts
In accordance with Article 2558 of the Italian Civil Code, the Buyer shall subrogate the Seller in all contracts stipulated by the division of the company sold under the present agreement, except for current leasing contracts relating to assets that are the property of "C.V.S.*Costruzione Veicoli Speciali S.p.A.".
2-06) Leasing contracts
The Buyer shall not subrogate the Seller in current leasing contracts.
2-07) Employee contracts
The Buyer shall not subrogate the Seller in employment contracts of current employees of "C.V.S.*Costruzione Veicoli Speciali S.p.A." in liquidation and subject to composition with creditors.
The parties hereby expressly refer this matter to the relevant provisions of the company leasing agreement, hereby confirming the undertakings made in that contract and the Trade Union
Exhibit 2.1 - Page 9
agreement reached on 26 June 2010.
3 ) The agreed sale price of the company division is EUR 2,816,560 (two million eight hundred and sixteen thousand five hundred and sixty), of which EUR 1,200,000 (one million two hundred thousand) on account of capital goods, EUR 16,560 (sixteen thousand five hundred and sixty) an account of registered movables, EUR 1,600,000 (one million six hundred thousand) on account of intangible assets.
The price as established above shall be paid as follows: EUR 16,560 (sixteen thousand five hundred and sixty) within 90 (ninety) days of 1 July 2011 and the balance in 6 (six) six-monthly instalments payable in advance at the beginning of each period of EUR 466,666.66 (four hundred sixty six thousand six hundred and sixty six point sixty six)) each, except for the last instalment of EUR 466 666.70 (four hundred sixty six thousand six hundred and sixty six point seventy).
The first instalment shall be payable on signature of the present agreement, which shall be regarded as a receipt therefor, the subsequent instalments having as their due dates 30 December 2011, 30 June 2012, 30 December 2012, 30 June 2013, 30 December 2013.
No interest shall be payable on deferrals of the sale price under the instalment plan.
The Buyer shall provide surety, in the form of a bank
Exhibit 2.1 - Page 10
guarantee with Unicredit SPA to the amount of EUR 1,000,000 (one million), for the payments as agreed above and the other undertakings made under the present contract or in any case stipulated between the parties.
This guarantee shall be renewed on expiry and thereafter renewed for each subsequent instalment for an amount equal to the outstanding balance until the entire sale price has been paid.
4 ) The parties hereby ratify the terms agreed under Article 6(3)of the company leasing agreement with signatures authenticated by the notary Carlo Brunetti on 29 June 2010, Protocol No 36667/12705, mentioned in the foregoing, regarding inventory of "C.V.S.*Costruzione Veicoli Speciali S.p.A." in liquidation and subject to composition with creditors, such terms thus continuing to apply to relevant matters.
It is also hereby acknowledged that the terms agreed under points a) and b) of the said Article 6(3) were amended and approved by virtue of an opinion issued on 26 February 2011 by the Receiver and subsequent authorisation by the Deputy Judge which shall henceforth be taken in its entirety as representing the agreements reached under points a) and b) of said Article 6 (3).
5 ) Article 36 of Law No 392/78 shall not apply to the present sale given that the real estate located in Roveleto and
Exhibit 2.1 - Page 11
Fontana was not subject to a leasing agreement by “C.V.S.*Costruzione Veicoli Speciali S.p.A." since any such agreements had already been terminated.
"CVS FERRARI SRL", as stated in the foregoing, hereby declares that it has already reached an agreement with the owners as to the use of the said real estate.
6) At the date of signature of the present contract the "CVS FERRARI SRL" company acknowledges that it has already effectively taken possession of the division of the company sold under the present agreement.
The Buyer "CVS FERRARI SRL" hereby acknowledges furthermore that it has already taken possession of all movables and equipment included in the sale, including machinery, by virtue of the company leasing agreement authenticated by the notary Carlo Brunetti on 29 June 2010, Protocol No 36667/12705, mentioned in the foregoing.
The company "CVS FERRARI SRL" therefore acknowledges that all movables and all of the equipment included in the sale, including machinery, are sold in fact and law in their ‘as is’ state, as inspected and accepted by the Buyer who acknowledges their suitability and their possession of the essential qualities required for the performance of their intended use, albeit not warranted for by the Seller, and hereby waives all rights to claims of any nature, releasing and holding harmless
Exhibit 2.1 - Page 12
the Seller from all relevant future liability.
7 ) All costs relating to the present act, including registration, and notarial costs and fees and all other expenses involved in the sale of the company division, shall be borne by the Buyer "CVS FERRARI SRL".
8 ) All notifications shall be made in writing and to the registered addresses of the Parties first stated above.
9 ) The Court of Piecaenza shall have exclusive competency in all disputes regarding the validity, interpretation, execution of and/or challenges to the present agreement.
Exhibit 2.1 - Page 13
Protocol No File No
AUTHENTICATION OF SIGNATURES
I the undersigned dottor Carlo Brunetti, Notary of Piacenza, a registered member of the Notaries’ Association of Piacenza, hereby certify that Messrs:
- Giorgio REGGIANI , born in XXXXXXXXXXXXXXXXXXX on XXXXXXXXXXXXXXXXXXXX with a registered address at XXXXXXXXXXXXXXXXXX, Tax ID XXXXXXXXXXX,
- Andrew Michael ROOKE , born in XXXXXXXXXXXXXXXXX on XXXXXXXXXXXXXXX, with an address for the present purposes at XXXXXXXXXXXXXXXXXXX, Tax ID XXXXXXXXXXX, a UK citizen,
of whose personal identity, capacity and powers I the notary, am certain, have in my presence attached their signatures at the foot of the present act, read by myself the notary to the Parties, and in the margin of the intermediate folios of which
Exhibit 2.1 - Page 14
Exhibit 10.1
AGREEMENT FOR THE PROVISION OF GOODS
The present agreement is a private act valid for all legal purposes and effects between:
- CVS FERRARI srl , (hereinafter the Customer) with a registered office address at Via Emilia, Roveleto di Cadeo (PC) Tax ID XXXXXXXXXXX, represented for the present purposes by the Chairman of the Board of Directors and legal representative Andrew Rooke
AND
- CABLETRONIC srl, (hereinafter the Supplier) with a registered office address at Via Emilia 13, Cadeo, VAT No XXXXXXXXXXX represented for the present purposes by the sole Director Ing Ferrari Massimo
Whereas
1. CVS FERRARI SRL made a purchase offer for the company CVS SpA in liquidation and subject to composition with creditors (hereinafter CVS S.p.A); CABLETRONIC is aware of this offer, which included purchase of, inter alia , all designs, plans, calculations, models, patents and technical, technological and electronic programming know-how (hereinafter Electronic Know-How) useful for and necessary to the manufacture and proper operation of the machinery produced and placed on the market in the past and prior to the stipulation of the Leasing Agreement for a branch of the CVS SpA company and placed on the market by
Exhibit 10.1 - Page 1
CVS Ferrari srl, even where such Electronic Know-How is deposited with Third Parties, on whatever basis.
2. To date CABLETRONIC SRL has made every effort to:
2. a. deliver to CVS Ferrari srl all designs, technical specifications, and technical, technological and electronic programming know-how, in its possession, and undertaking also to obtain such material from third parties, relating to its provision of goods for the machinery of CVS SpA, as described in annexes A) and C) of the present agreement, “Electronic Know-How”;
2. b. continue to provide goods under existing agreements with CVS Ferrari srl;
it is now hereby agreed that
General provisions:
The present document shall establish the terms and conditions governing all technical, quality-related and business aspects of the relationship between CVS FERRARI srl (Customer) and CABLETRONIC srl (Supplier) in regard to the family of products purchased by the Customer, relating to provision of goods as specified in the recitals and of Electronic Know-How.
Product quality is of the utmost importance to the Customer for the purpose of maintaining its current market position, which in turn depends to a great degree on the quality of purchased goods.
The Customer thus wishes to obtain from its Supplier products and Electronic Know-How free of defects, obtained through a process of continuous striving
Exhibit 10.1 - Page 2
for improvement, with an evidently planned and clearly documented quality-control system.
Purpose of the agreement:
As stated in the recitals, prior to the commencement of the provision of goods, the Supplier undertakes to deliver:
1. PROJECT TECHNICAL DOCUMENTATION AND KNOW-HOW:
CABLETRONIC SRL undertakes to provide CVS FERRARI SRL with all Electronic Know-How as described in detail and listed in annexes SUB A) and C) to present agreement, which shall be regarded as an integral part of the contract.
CABLETRONIC SRL furthermore undertakes to deliver, in return for due consideration, updates, customisations and improvements relating to the software and components assigned under the present agreement as requested by CVS FERRARI SRL, providing all relevant documentation to CVS FERRARI SRL .
CABLETRONIC SRL undertakes to provide all Electronic Know-How in its final and updated version and in perfect working order.
The Parties agree that delivery should be in accordance with the following schedule:
All items specified in the Annexes, Page 1 to Page 37, shall be delivered on signature of the present agreement…
Exhibit 10.1 - Page 3
The Parties agree that all items not delivered on today’s date shall be delivered by 31.10.2011 and by 31.01.2012, as described in detail in the said Annex C, Page 38 to Page 50.
2. SUPPLY OF ELECTRONIC SYSTEMS:
Provision of goods under the present agreement shall include:
· wired electrical boxes, electrical boxes with printed circuits, electronic boards, production boxes and CABLETRONIC software , and every other element useful for and necessary to the manufacture and proper operation of the following machines: 1) reach stackers (for full and empty containers); 2) fork lifts with forks and spreaders (for full and empty containers); 3) 4x4 and 4x2 port tractors; 4) straddle carriers; 5) runners; 6) dumpers; 7) other special machinery for which Cabletronic has supplied spare parts and software in the past.
All such products shall be referred to hereinafter for the sake of simplicity as ELECTRONIC SYSTEMS
Whenever CVS Ferrari srl should require customisation for given consignments, CABLETRONIC srl shall quote estimates for such customisation work, and should the estimate be approved, this work shall be included in a specific order.
All provision of goods for the term of the present agreement shall be based on written orders issued as required by CVS Ferrari srl.
Exhibit 10.1 - Page 4
Consumption and purchase of ELECTRONIC SYSTEMS may vary on the basis of the real needs of the Customer, and such variation shall not entitle the Supplier to make claims of any nature. Notwithstanding this condition, the Customer undertakes to purchase from the Supplier all ELECTRONIC SYSTEMS to be installed in machinery sold, although without specifying guaranteed minimum amounts, the Supplier undertaking for the full term of this agreement not to provide the ELECTRONIC SYSTEMS to competitors of the Customer, remaining free however to do business with all other operators.
Technical and quality features:
The goods provided shall at all times meet quality standards and be free from defects, either caused during manufacture or due to unsuitable packing or insufficient protection from humidity or mechanical action. Consistent quality standards may be subject to verification including spot checks during the supply period.
Rules for modified deliveries:
The goods provided shall be assembled with components the brand and type of which must be declared in the relevant technical specifications and which may not be replaced, during the course of the supply period, with products by other manufacturers, except subject to specific written authorisation to be issued in each separate case by the technical managers of the Customer.
Term of the agreement:
Exhibit 10.1 - Page 5
This agreement shall have a term of three years, to run from 01/07/2011 to 30/06/2014.
Prices
Sums in consideration of the performance of the present agreement shall be paid as follows, as agreed between the Parties:
a)
EUR 100,000 for delivery of Electronic Know-How payable as follows:
EUR 34,000 on today’s date; EUR 33,000 on 30 October 2011 and EUR 33,000 on 31 January 2012
b) For the full term of the agreement the Parties agree that the prices for the consignments of production machinery shall be those contained in the price list attached as annex B) to the present agreement;
c) For consignments of spare parts, the price list attached as annex B) shall be subject to a surcharge of 30%; for the term of the present agreement the Supplier undertakes not to sell either directly and/or indirectly spare parts for the items supplied under this agreement.
d) The Parties hereby agree to meet each six months to verify and update as necessary the said price list attached as annex B).
CABLETRONIC SRL hereby expressly declares that on signature and execution of the present agreement, all know-how, software and technical designs as specified in annex A) shall become, immediately or as scheduled, the property of CVS FERRARI SRL, for all legal purposes and effects.
Exhibit 10.1 - Page 6
Payment for provision of goods
CVS FERRARI srl undertakes to pay consideration within and not after 60 days as of the date of invoice, by bank transfer to the current account specified by CABLETRONIC SRL
In case of faults or defects in the goods delivered as part of orders or otherwise under this agreement, CVS FERRARI SRL’s appointees for the purposes shall make claims via letter or fax as prescribed by law.
Deliveries:
All agreed delivery terms shall be strictly complied with; any delays or early deliveries must be notified in advance to the production department of CVS FERRARI SRL for the purposes of verifying feasibility. Partial deliveries shall be made only on express prior agreement.
Any relevant indemnities or compensations shall be agreed at a later date.
Delivery of the goods shall be accompanied by a delivery note allowing identification of the product and the relevant order, therefore including:
- Article description
- Customer Code
- Order date and number
Transport:
Exhibit 10.1 - Page 7
Deliveries shall be made to the Customer’s premises at the risk and expense of the Supplier. The Supplier shall be free to chose the carrier/form of transport.
Packing:
The goods shall be protected from the elements, soiling, rusting and be packed in such a way as to avoid damage and denting during transport.
All prices shall be inclusive of the costs of such packing and protection from damage.
Product identification:
Each product shall be suitably marked or labelled for identification.
Furthermore, if a number of products are delivered as part of one and the same consignment, these shall be packed in such a way as to ensure they cannot be confused and each package shall bear the following information on a tag, label or other suitable form of marking:
- Article description
- Customer code
- No. of items
- Lot reference No., where relevant.
Support:
The Supplier shall provide all necessary technical support for the proper working of products for the 5 (five) years following their manufacturing date.
Exhibit 10.1 - Page 8
Warranty
The Supplier warrants that goods supplied under the present agreement comply with all of the technical specifications contained in the annexes.
Products shall be regarded as defective where they do not conform to the designs and/or technical specification approved by the Parties, or where relevant with national and/or international standards applicable at the time of their delivery. In such cases of nonconformity the Customer shall be entitled to terminate the present agreement.
The Customer shall notify the Supplier of such nonconformity within 30 (thirty) days as of its discovery and may avail of the 12/18/24 (twelve/eighteen/twenty-four) month warranty as specified in each purchase order.
The date of manufacture shall however be clearly marked on each item supplied or on its delivery papers or certified by the Supplier.
Liability:
The Supplier warrants for the conformity of the goods supplied with safety standards applicable at the time of ordering, and with all applicable workplace health and safety regulations.
Termination and withdrawal:
In cases of repeated and demonstrable breach of the undertakings entered into under the present agreement, the Parties may at their own discretion
Exhibit 10.1 - Page 9
withdraw from the present agreement at any time and the contract between them shall be regarded as terminated forthwith.
Disputes:
All disputes arising from the execution or interpretation of the present agreement shall be submitted to an arbitration board composed of three members, two of whom to be appointed by the Parties and the third – the chair – to be appointed by the arbiters so chosen.
Should the latter fail to agree as to the appointment of the chair, the third arbiter shall be appointed by the President of the Court of Piacenza on application by either Party or by both Parties jointly and severally.
Applicable regulations:
All matters not specifically governed by the provisions of the present agreement shall be subject to the relevant sections of the Italian Civil Code.
Exclusivity
Without prejudice to the provisions of point 2 of the Purpose of the Agreement clause, CVS FERRARI srl hereby appoints CABLETRONIC SRL as its exclusive supplier for the products defined as ELECTRONIC SYSTEMS under the present agreement, CABLETRONIC SRL also undertaking for the same period not to supply competitors of CVS FERRARI SRL.
Exhibit 10.1 - Page 10
Express termination clause
The present agreement may be terminated by CVS FERRARI SRL should the composition with creditors arrangement involving CVS SpA, in liquidation, be terminated.
The present agreement is subject, on pain of termination, to exact performance of delivery of the documentation specified in annexes A) and C) within the established terms (see purpose of the agreement clause point 1 and delivery schedule provision)
The present agreement shall be considered fundamental in regulating the good business relationship which must exist at all times between Customer and Supplier, thus avoiding any possible errors or misunderstandings.
The present contract is issued in duplicate original form.
Read, agreed and signed
Cadeo 29.06.2011
CVS FERRARI srl CABLETRONIC srl
Exhibit 10.1 - Page 11
In accordance with Articles. 1341 and 1342 of the Italian Civil Code the following clauses are hereby expressly approved: term, payment, exclusivity agreement, termination and withdrawal, arbitral clause.
Read, agreed and signed
Cadeo, 29.06.2011
CVS FERRARI srl CABLETRONIC srl
Exhibit 10.1 - Page 1 2
Exhibit 10.2
CVS Ferrari Sri
Head Offices in Cadeo (PC), La Favorita
Messers
CVS – Costruzione Veicoli Speciali S.p.A
In Liquidazione e Concordato Preventivo
Via Emilia 20/22
Cadeo (PC) Fraz Roveleto
Piacenza 11 February 20011
Gentlemen,
we make reference to the Renatal of Business Agreement executed between us on the 29 of June 2010 ( hereinafter the “Agreement”).
As discussed and agreed art. 15 of the Agreement has to be modified and amended as per following proposal:
1) Please substitute and change the firs paragraph of said art. 15 with the following wording: “ CVS Ferrari Sri undertake and commit itself to purchase all the company assets subject of this Agreement ( inclusive of all the drawings, design, calculations, data sheet, production model and instructions, manuals, software and hardware, relevant to the production of all the mechanic, electric and electronic components of all the CVS production machines) for the overall amount of 2.800.000,00 without the deduction of the rental fee paid as of today andr to be paid up to the closing date. This amount will be inclusive of fixed assets and fixtures up to the maximum value of 1.200.000,00 to be selected from the list of which the relevant summary it’s attached to this letter. The overall amount of 2.800.000,00 will be paid in 36 months by 6 months instalments, paid in advance, without interest (interest free) and will be secured with the existing Bank Guarantee that before its expiring date will be extended up to the date of payment of the last instalment. Cvs Ferrari SrL will deposit as caution deposit the amount of 200.000,00 that will be returned at the date of execution of the payment of the first instalment, or at CVS Ferrari Srl option could be accounted as partial payment of the first instalment. ”
All the above is subject and under the condition precedent of (i) the final approval of the Concordato Preventivo Procedure by CVS’ creditors (Omologazione del Concordato) and (ii) the final and definitive purchase of all the CVS’ company assets by CVS Ferrari Srl.
As discussed and agreed art. 17 of the Agreement has to be modified and amended as per following proposal:
2) Please substitute and change art. 17 with the following wording:
“ at the end of the rental period of the real estate properties of la Favorite CVS Ferrari Srl undertake and commit itself to buy them (and all the fixed equipments existing and necessary for the production activity) at the price of 9.200.000,00 subject to financing of 75% of the purchase price at market conditions. Up to the date of 30 of June 2014 the rental fee of la Favorite plant will remain fix at 360.000,00 per year ”
It is expressly agreed that for all and everything not be expressly modified by this letter the original provision of the Agreement will remain valid and effective between the Parties. This letter is an amendment of the Agreement and form an integral part of the same. This letter does not produce any novation effect of both the Agreement and the origina obligation of the Parties (as dfined in the Agreement). This letter is ruled and under the Italian Law: For any controversy claim or dispute that could be arise from the interpretation, execution and fulfilment of this letter will be exclusively competent the Piacenza Court.
This letter is subject to the final approval of CVS Ferrari’s Board of Directors.
Exhibit 10.2 - Page 1
If you are in agreement with this proposal, please sign this letter for receipt and acceptance of all its content.
Best Regards.
CVS Ferrari Srl
Stefano Mercati
For Acceptance
CVS SpA
Giuseppe Ferrari
Exhibit 10.2 - Page 2