1
PRIVATE AGREEMENT
FOR THE SALE OF COMPANY SHAREHOLDINGS
AND INCREASE OF SHARE CAPITAL
In the year 1997, on this fourth day of the month of December, in Munich
(Germany) between the undersigned parties Cybernet Internet Dienstleistung ag,
resident in Munich (Germany) in Stefan George Ring, in the person of Mr.
Alessandro Giacalone, by virtue of the power of attorney of the Board of
Cybernet conferred on 27.11.1997, subsequently indicated as Cybernet or the
Buyer for brevity;
on one side and
Mr. Roberto Loro, born in Vicenza and resident in Rovereto (TN) in Via
Firmian 4, tax identification No.
Stefano Longano, born in Bolzano (BZ) on 8th July 1962, resident in Rovereto
(TN) Viale Trento 1, tax identification No.
Domenico Loro, born in Dolce (VR) on 29th September 1938, resident in Rovereto
(TN), Via Firmian 4, tax identification No.
Angelo Longano, born in Trento (TN) on 21st July 1933, resident in Rovereto
(TN) Viale Trento 1, tax identification No.
Emma Pontara, born in Rovereto (TN) on 08.05.1938, resident in Rovereto (TN),
Via Firmian 4, tax identification No.
Maria Teresa Francesconi, born in Brentonico (TN) on 29th January 1934,
resident in Rovereto (TN) Viale Trento 1, tax identification No.
Mauro Longano, born in Bolzano (BZ) on 29th August 1963, resident in Rovereto
(TN) Via Salita del Dosso 50, tax identification No.
subsequently indicated as the sellers, on the other side.
PREFACE
A) that Cybernet is interested in acquiring 66% of the shares of Eclipse Srl
with registered offices in Rovereto (TN) in Via Salita del Dosso, 50,
registered No. 131332 at the Trento Chamber of Commerce, Industry and
Agriculture;
b) that Eclipse srl currently has a fully paid up share capital of Italian Lire
60,000,000.-(sixty million);
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c) that Patrizia Loro, Roberto Loro e Stefano Longano are the owners of a total
of 58% of the shares of Eclipse srl;
d) that the remaining 42% of the company shares, already owned by third
parties, have been bought by Domenico Loro, Angelo Longano, Emma Pontara, Maria
Teresa Francesconi e Mauro Longano in the interests of and in agreement with
Patrizia Loro, Roberto Loro, Stefano Longano through an act dated 17.11.1997
(acts dated 17.11.1997 of the notary Bombardelli, Bolzano, files
73664-73665-73666);
e) that the buying price of the 42% of the company shares was altogether
Italian Lire 120.000.000. = and the current composition of the share capital is
as follows: Stefano Longano 34% (20,400 shares), Roberto Loro 20%, Patrizia
Loro 4%, Domenico Loro 9%, Angelo Longano 9%, Emma Pontara 9%, Maria Teresa
Francesconi 9%, Mauro Longano 6%.
Given the foregoing,
WE AGREE AND STIPULATE AS FOLLOWS
A) SALE OF THE COMPANY SHARES
1. Domenico Loro, Angelo Longano, Emma Pontara, Maria Teresa Francesconi e Mauro
Longano undertake to sell to Cybernet, who accepts, the entire shareholding
which they own, 42% of the total.
2. Roberto Loro e Stefano Longano undertake to sell to Cybernet which accepts,
part of their shareholding, to the extent of 24% of the total.
3. the sale of the shareholding at the previous points 1 and 2 will take place
contextually and without postponement by and not after 30.12.1997 by act of the
Notary Falqui, Rovereto; the date of 30.12.1997 replaces and extends
definitively to all effects the previous date established as 30.11.1997.
4. The sum to be paid for the sale of 66% of the shares is agreed at Italian
Lire 303.600.000 to be paid as follows:
4.1 Italian Lire 120.000.000 on the first working day after the signing of this
act via credit transfer to current account No. 10196/2 of the Cassa Rurale di
Rovereto Bank, Rovereto branch (TN), Via Manzoni, 1 ABI 08210-CAB 20800;
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4.2 The balance of Italian Lire 183,600,000 will be transferred by the day
after the signing of the share sale act. The transfer of the shares shall be
considered final and definitive only at the moment when the sum is credited at
the Banca Italiana bank.
5. Once the sale of the shares has been completed the parties undertake to
convene an extraordinary shareholders' meeting to deliberate:
- - the modification of the business purpose and statute;
- - the transformation of the company from srl to spa;
- - the increase in share capital;
- - the resignation of the sole director and the election of a board of directors;
- - the election of the executive committee.
The Board of Directors will be composed of the chairman (from Cybernet) and six
directors (three from Cybernet, three from Eclipse one of whom with the powers
of managing director).
The executive committee will be composed of three members (from Eclipse).
6) The sellers declare and guarantee as follows:
6.1 The Eclipse company is in possession of all the requisites required by
Italian Law to operate on the market, its company structure complies with the
norms in force, it possesses 32% of the share capital of Sextant with
registered offices in Bologna for which negotiations are going on for the sale
of the shares, there are no share or other agreements which could affect or
condition the business.
6.2 The share capital of Eclipse underwritten and fully paid up, comes to a
total of Italian Lire 60,000,000. = and has not suffered reductions.
6.3 The shareholdings of the present undertaking are the full and exclusive
property of the sellers, are not under any seizure order or affected by any
restrictions.
6.4 The balance sheets comply with Italian standards and the accounting books
are formally and substantially reliable, so that the situation which emerges as
regards profit and loss is absolutely truthful. At 31st December 1997 it is
presumed that the balance sheet will close in the following position:
capitalisation: Italian Lire 73,468,000 =
(share capital 60,000,000 = and reserves 13,468,000)
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- - turnover Italian Lire 1,200,000,000.=
- - gross profit Italian Lire 50,000,000.=
6.5 There are no disputes or lawsuits pending.
6.6 All contracts underwritten and obligations undertaken by the company are
listed in the attachments 2-3-4-5-6-7-8-9.
6.7 All the software owned by the company, or used by it under licence for its
business, and the relative contracts, are listed in attachment 10.
6.8 Eclipse Srl does not own any real estate property. Any and all rental
contract copies are delivered to the buyer.
6.9 Eclipse Srl is the owner or tenant of all the goods and equipment used for
its business.
6.10 Eclipse Srl has regularly presented all the declarations of a fiscal nature
due under Italian Law and has consequently regulated each related situation.
There are no matters pending of a fiscal nature of any kind.
6.11 The list of employees supplied by Eclipse (Attachment 1) is complete and
exhaustive and no other work relationships of an employed nature are in force.
6.12 There are no outstanding salary back payments, severance payments,
pensions, bonuses or benefits of any kind to employees or freelance workers.
6.13 Eclipse Srl does not own trademarks, patents, authors rights etc.
6.14 None of the selling shareholders have granted or grant their goods,
services or advantages to Eclipse in relation to its business purpose, beyond
their own work.
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7. The sellers shall indemnify the buyer for any damage, loss or expense
deriving from false declarations, violations of guarantee or non compliance
with the agreements which should take place within one year of the definitive
sale of the shares.
8. The sellers will respond, for a period of five years from the sale of the
shares, for any damage, loss, expense or taxation expense which should derive
from previous business.
9. For a period of 3 (three) years from the act of sale of the shares Patrizia
Loro, Robert Loro e Stefano Longano shall not carry on business in direct or
indirect competition with Eclipse either on their own account or with a company
in which they are co-owners or administrators. For the same period the non
competition agreement must also be observed by the buyers.
For each violation of the non competition agreement the non complying seller
shall pay a penalty of Italian Lire 100,000,000. (one hundred million) to the
buyer; each two week period of continued violation will be considered an
independent case of violation.
10. Cybernet and those giving him cause, since they hold the majority on the
board of directors of Eclipse srl, undertake to employ directly or have
Patrizia Loro, Robert Loro and Stefano Longano employed by Eclipse for a period
of at least three years, that is from 01.01.1998 to 31.12.2000, as directors of
the company, with a net initial salary of not less than Italian Lire 57,000,000.
= (fifty seven million) per annum, excluding expenses and any other benefits
which the shareholders of Eclipse Srl may wish to confer following good business
results. The contract may be reviewed on annually on the basis of the cost of
living index (ISTAT index) and the results of the company management.
At least six months before the expiry of the three year period the Board of
Directors of Eclipse shall communicate with each individual director regarding
the extension or not of the working relationship after the end of the three
year period.
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11. Until 31.12.2000 Cybernet undertakes not to make any changes to the company
statute, not to increase the share capital, not to transfer the registered
offices and whatever else is not necessary to protect the interests of the
company, if the decision is not approved by at least 80% (eighty) of the
shareholdings.
B) INCREASE IN SHARE CAPITAL
1. The parties, with the exception of the outgoing shareholders, undertake to
underwrite, contextually at the act of sale, 66% of the company shares to the
buyer, an increase in share capital of Eclipse.
2. The new share capital is agreed in the amount of Italian Lire
600,000,000-=(six hundred million), so that the outlay of Cybernet will come to
Italian Lire 356,400,000.=(three hundred and fifty six million, four hundred
thousand), and the outlay of Patrizia Loro, Roberto Loro e Stefano Longano will
be Italian Lire 183,600,000.=(one hundred and eighty three million six hundred
thousand) altogether.
3. Payment of the above capital shall be made in successive phases by the
31.12.1998, as deliberated at the shareholders' meeting, bearing in mind the
financial requirements of Eclipse.
Read, approved and undersigned.
signatures
Domenico Loro
who acts on his own and as solicitor for:
Longano Angelo, born in Trento (TN) on 21st July 1933, resident in Rovereto
(TN) Viale Trento 1, pensioner, tax identification No.
Francesconi M. Teresa, born in Brentonico (TN) on 29th January 1934, resident
in Rovereto (TN) Viale Trento 1, pensioner, tax identification No.
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on the special attorney dated 2nd December 1997 No, 124333 of the notary public
Dr, Guido Falqui-Massidda of Rovereto;
Roberto Loro, born in Vicenza (VI) on 19th November 1965, resident in Rovereto
(TN), Via Firmian 4, tax identification No.
Longano Stefano, born in Bolzano (BZ) on 8th July 1962, resident in Rovereto
(TN) Viale Trento 1, tax identification No.
Loro Patrizia, born in Rovereto (TN) on 20th December 1967, resident in
Rovereto (TN), Via Firmian 4, tax identification No.
La traduttrice
/s/ Patrizia Loro
- ------------------
Patrizia Loro
[SEAL]
PRETURA CIRCONDARIALE DI ROVERETO
VERBALE DI ASSEVERAZIONE
Il giorno 6/08/1998 avanti al sottoscritto Collaboratore di Cancelleria della
Pretura di Rovereto e personalmente comparsa la Signorina Patrizia Loro, nata a
Rovereto (TN) il 20.12.1967 ed ivi residente in Via Firmian n.4, la quale mi
chiede di asseverare mediante giuramento la suestesa traduzione. Ammonita ai
sensi di legge la stessa presta il giuramento di rito, ripetendo la formula:
"Giuro di avere bene e fedelmente proceduto alle operazioni affidatemi al solo
scopo di far conoscere al Giudice la verita".
Del che e redatto il presente verbale che previa lettura e conferma viene
sottoscritto come appresso.
La Traduttrice
/s/ Patrizia Loro
- -------------------
Patrizia Loro
[SEVERAL SEALS]
8
SALE OF HOLDING IN A LIMITED COMPANY
Parties:
Domenio Loro, born in Dolce (VR) on 29th September 1938, resident in Rovereto
(TN), Via Firmian 4, accountant, tax identification No. who acts on his
own and as solicitor for:
Emma Pontara, born in Rovereto (TN) on 8th May 1938, resident in Rovereto (TN),
Via Firmian 4, teacher, tax identification No.
Angelo Longano, born in Trento (TN) on 21st July 1933, resident in Rovereto (TN)
Viale Trento 1, pensioner, tax identification No.
Maria Teresa Francesconi, born in Brentonico (TN) on 29th January 1934, resident
in Rovereto (TN) Viale Trento 1, pensioner, tax identification No.
Mauro Longano, born in Bolzano (BZ) on 29th August 1963, resident in Rovereto
(TN) Via Salita del Dosso 50, teacher, tax identification No. on the
special attorney dated 2nd December 1997 No, 124333 of the notary public Dr,
Guido Falqui-Massidda of Rovereto;
Roberto Loro, born in Vicenza (VI) on 19th November 1965, resident in Rovereto
(TN), Via Firmian 4, tax identification No.
Stefano Longano, born in Bolzano (BZ) on 8th July 1962, resident in Rovereto
(TN) Viale Trento 1, tax identification No.
Patrizia Loro, born in Rovereto (TN) on 20th December 1967, resident in Rovereto
(TN) Via Firmian 4, tax identification No.
Cybernet Ag Public Limited Company (SpA), with registered offices in Berlin,
entered in the register of companies of the court of Charlottenburg at No. HRB
60318, by means of the attorney:
Alessandro Giacalone born in Pesaro on 4th July 1951, resident in Munich
(Germany) Kirchseeon 85614, Hubertus Strasse 19, company director; authorised
special attorney on 10th December 1997 No. 3071/1997 ANR 25792 - 25793 with
asseverated translation with minutes bearing today's date No. 124465 file of
notary Dr. Guido Falqui Massidda, currently being registered as within terms;
attorney issued by the managing directors in turn authorised with statutory
powers in the acts of the register of companies at the court of Charlottenburg
No. HRB 60318.
******
Given that:
Pontara Emma is the owner of a shareholding of the nominal value of Italian
Lire 5.400.000.= representing 9% of the share capital;
1
[Three Seals]
9
Longano Angelo is the owner of a shareholding of the nominal value of Italian
Lire 5.400.000 - representing 9% of the share capital;
Francesconi Maria Teresa is the owner of a shareholding of the nominal value of
Italian Lire 5.400.000 - representing 9% of the share capital;
Longano Mauro is the owner of a shareholding of the nominal value of
Italian Lire 3.600.000 - representing 6% of the share capital;
Loro Domenico is the owner of a shareholding of the nominal value of
Italian Lire 5.400.000 - representing 9% of the share capital;
Loro Roberto is the owner of a shareholding of the nominal value of
Italian Lire 12.000.000 - representing 20% of the share capital;
Longano Stefano is the owner of a shareholding of the nominal value of
Italian Lire 20.400.000 - representing 34% of the share capital;
Loro Patrizia is the owner of a shareholding of the nominal value of
Italian Lire 2.400.000 - representing 4% of the share capital, of the limited
company
"Eclipse Srl" with registered offices in Rovereto (TN), Salita del Dosso 50,
share capital Italian Lire 60,000,000 (sixty million) entered in the register of
companies at the Trento Chamber of Commerce (Court of Rovereto) at No. 5099;
tax identification No. and VAT No. 01340360229;
the above intend to sell, some entirely, some partially, their shareholdings in
the company to Patrizia Loro and the Cybernet AG
Given the foregoing, it is agreed and stipulated between the parties as follows:
1) Pontara Emma sells to Cybernet Ag, which accepts, her shareholding in the
company described above, with all inherent active and passive rights and
duties, for the sum of Italian Lire 83,300,000 (eighty-three million three
hundred thousand);
2) Longano Angelo sells to Cybernet AG, which accepts, his shareholding in the
company described above, with all inherent active and passive rights and duties,
for the sum of Italian Lire 48,200,000 (forty-eight million two hundred
thousand);
3) Francesconi Maria Terresa sells Cybernet AG, which accepts, her shareholding
in the company described above, with all inherent active and passive rights and
duties, for the sum of Italian Lire 83,300,000 (eighty-three million three
hundred thousand);
2
10
4) Longano Mauro sells to Cybernet AG, which accepts, his shareholding in the
company described above, with all inherent active and passive rights and
duties, for the sum of Italian Lire 8,100,000 (eight million one hundred
thousand);
5) Loro Domenico sells to Cybernet AG, which accepts, his shareholding in the
company described above, with all inherent active and passive rights and
duties, for the sum of Italian Lire 48,200,000 (forty-eight million two hundred
thousand);
6) Loro Roberto sells Cybernet AG and to Loro Patrizia which accept, part of
his shareholding in the company described above in the following proportions:
- - to Cybernet AG Italian Lire 798,000 of nominal value representing 1.33% of
the share capital for the sum of Italian Lire 1,800,000 (one million eight
hundred thousand);
- - to Loro Patrizia Italian Lire 4,398,000 of nominal value representing 7.33%
of the share capital for the sum of Italian Lire 4,398,000 (four million three
hundred and ninety-eight thousand) already paid and for which a receipt is
issued;
the shareholding is sold with all inherent active and passive rights and duties;
7) Longano Stefano sells to Cybernet Ag, which accepts, part of his
shareholding in the company described above Italian Lire 13,602,000 of nominal
value representing 22.67% of the share capital of the company, with all inherent
active and passive rights and duties, for the sum of Italian Lire 30,700,000
(thirty million seven hundred thousand).
Payment of the sums due from the sale to Cybernet Ag will be made by an order
which the SpA will deliver to its bank the day after the signing of the present
act.
With respect to Cybernet Ag, the act will thus be effective and the sales of
the shareholdings will be considered complete from the moment in which payment,
on an Italian bank named by the sellers, of the sum of Italian Lire 303,600,000
is credited in favour of the sellers themselves.
As a result of this the share capital holdings will then stand in the
following proportions:
- - Cybernet Internet Diensleistungen AG, a shareholding of 39,600,000,
representing 66% of the share capital;
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11
- - Longano Stefano, a shareholding of 6,798,000 representing 11.33% of the share
capital;
- - Loro Roberto, a shareholding of 6,804,000 representing 11.34% of the share
capital;
- - Loro Patrizia, a shareholding of 6,798,000 representing 11.33% of the share
capital;
the rest unchanged.
It is highlighted here that all measures with respect to the exercise of the
first refusal rights of the previous shareholders have been taken.
Under the terms and to the effects of Law No. 151 of 19th May 1975, the parties
declare that the company portions are personal goods.
Under the terms of the Legislative Decree (D.L.) No. 27 of 28th January 1991,
converted to Law No. 102 on 25th March 1991, the selling parties declare:
- - as regards Pontara Emma, Longano Angelo, Francesconi Maria Teresa, Longano
Mauro, Loro Domenico, Loro Roberto, who intend to make use of the special
dispositions contained in article 3 of the decree cited (forfeit system) opting
expressly for this system;
- - that the compliances and payments required by the law will be made;
- - that the present sales represent the first sale of shareholdings between the
parties in the current year.
As regards Longano Stefano, as the sale of more than 10% (ten per cent) of the
share capital under the terms of No. 5 of article 3 of the D.L. No. 27 of 28th
January 1991, the option described at No. 1 of article 3 of the same D.L. may
not be exercised and the stamp duty will be paid as per No. 4 of article 2 of
the nominated D.L. converted to Law No. 102 of 25th March 1991.
All expenses relating to the present act and its dependents are to be met by
the selling parties, in fact, entirely by Cybernet AG, read, accepted and
undersigned.
Rovereto, Via Paoli 21, 11th December 1997.
File No. 124466
AUTHENTICATION
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In Rovereto in my offices located at Via Paoli, No. two, I the undersigned Dr.
Guido Falqui-Massidda, notary with registered offices in Rovereto, member of
the register of Notaries of the united districts of Trento and Rovereto,
certify that after foresaking with my consent the presence of witnesses, and
having the legal requisites, and I notary being certain of the personal
identity of the signatories, the preceding act is undersigned in my sight and
presence by:
Loro Domenico, born in Dolce (VR) on 29th September 1938, resident in Rovereto
(TN), Via Firmian 4, accountant;
who acts on his own and as solicitor for:
Pontara Emma, born in Rovereto (TN) on 8th May 1938, resident in Rovereto (TN),
Via Firmian 4, teacher,
Longano Angelo, born in Trento (TN) on 21st July 1933, resident in Rovereto
(TN) Viale Trento 1, pensioner,
Francesconi Maria Teresa, born in Brentonico (TN) on 29th January 1934,
resident in Rovereto (TN) Viale Trento 1, pensioner,
Longano Mauro, born in Bolzano (BZ) on 29th August 1963, resident in Rovereto
(TN) Via Salita del Dosso 50, teacher,
on the special attorney dated 2nd December 1997 No, 124333 of the notary public
Dr. Guido Falqui-Massidda of Rovereto, which is attached to the present act
under the letter A/;
Loro Roberto, born in Vicenza (VI) on 19th November 1965, resident in Rovereto
(TN), Via Firmian 4,
Longano Stefano, born in Bolzano (BZ) on 8th July 1962, resident in Rovereto
(TN) Viale Trento 1,
Loro Patrizia, born in Rovereto (TN) on 20th December 1967, resident in
Rovereto (TN), Via Firmian 4,
Cybernet AG, with registered offices in Berlin, entered in the register of
companies of the court of Charlottenburg at NO. HRB 60318, by means of the
attorney:
Giacalone Alessandro born in Pesaro on 4th July 1951, resident in Munich
(Germany) Kirchseeon 85614, Hubertus Strasse 19, company director; authorised
special attorney on 10th December 1997 No. 3071/1997 ANR 25792 - 25793 with
asseverated translation with minutes bearing today's date No. 124465 file of
notary Dr. Guido Falqui Massidda, currently being registered as within terms;
attorney issued by the managing directors in
5
[Seal]
13
turn authorised with statutory powers in the acts of the register of companies
at the court of Charlottenburg No. HRB 60318, Rovereto, eleventh of December
nineteen ninety-seven.
11th December 1997.-
--------------------
signature
stamp
La traduttrice
/s/ Patrizia Loro
- ---------------------
Patrizia Loro
PRETURA CIRCONDARIALE DI ROVERETO
VERBALE DI ASSEVERAZIONE
Il giorno 6/08/98 avanti al sottoscritto Collaboratore di Cancelleria della
Pretura di Rovereto e personalmente comparsa la Signorina Patrizia Loro, nata a
Rovereto (TN) il 20.12.1967 ed ivi residente in Via Firmian n.4, la quale mi
chiede di asseverare mediante giuramento la suestesa traduzione. Ammonita ai
sensi di legge la stessa presta il giuramento di rito, ripetendo la formula:
"Giuro di avere bene e fedelmente proceduto alle operazioni affidatemi al solo
scopo di far conoscere al Giudice la verita".
Del che e redatto il presente verbale che previa lettura e conferma viene
sottoscritto come appresso.
La Traduttrice
/s/ Patrizia Loro
- ---------------------
Patrizia Loro
[SEALS]