<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
(RULE 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a)
AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a)
(AMENDMENT NO. 2)
TIVOLI INDUSTRIES, INC.
(Name of Issuer)
COMMON STOCK, PAR VALUE $.001
(Title of Class of Securities)
88871110
(Cusip Number)
LORENZO TARGETTI
TARGETTI SANKEY S.p.A.
VIA PRATESE, 164
50145 FLORENCE, ITALY
39-055-379-1273
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
COPY TO:
G. DAVID BRINTON, ESQ.
ROGERS & WELLS LLP
200 PARK AVENUE
NEW YORK, NEW YORK
212 878-8000
SEPTEMBER 17, 1999
(Date of event which requires filing of this statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition that is the subject of this Schedule 13D, and
is filing this schedule because of Rule 13d-1(e), 13d1(f) or 13d1(g),
check the following box. [ ]
Page 1 of 10
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CUSIP No.88871110 13D Page 2 of 10 Pages
================================================================================
1. NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
TARGETTI SANKEY S.P.A.
================================================================================
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)[ ]
(b)[ ]
================================================================================
3. SEC USE ONLY
================================================================================
4. SOURCES OF FUNDS
BK, WC
================================================================================
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) OR 2(e)
[ ]
================================================================================
6. CITIZENSHIP OR PLACE OF ORGANIZATION
ITALY
================================================================================
7. SOLE VOTING POWER
NUMBER OF
UNITS ======================================================
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY
EACH 1,236,723
REPORTING ======================================================
PERSON WITH 9. SOLE DISPOSITIVE POWER
======================================================
10. SHARED DISPOSITIVE POWER
1,236,723
================================================================================
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,236,723
================================================================================
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
[ ]
================================================================================
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
100%
================================================================================
14. TYPE OF REPORTING PERSON
CO
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CUSIP No.88871110 13D Page 3 of 10 Pages
================================================================================
1. NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
GIAMPAOLO TARGETTI
================================================================================
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)[ ]
(b)[ ]
================================================================================
3. SEC USE ONLY
================================================================================
4. SOURCES OF FUNDS
BK, WC
================================================================================
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) OR 2(e)
[ ]
================================================================================
6. CITIZENSHIP OR PLACE OF ORGANIZATION
ITALY
================================================================================
7. SOLE VOTING POWER
NUMBER OF
UNITS ======================================================
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY
EACH 1,236,723
REPORTING ======================================================
PERSON WITH 9. SOLE DISPOSITIVE POWER
======================================================
10. SHARED DISPOSITIVE POWER
1,236,723
================================================================================
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,236,723
================================================================================
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
[ ]
================================================================================
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
100%
================================================================================
14. TYPE OF REPORTING PERSON
IN
================================================================================
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This Amendment No. 2, which relates to shares of Common Stock, $.001
par value per share ("Common Stock"), of Tivoli Industries, Inc., a California
corporation (the "Issuer"), and is being filed jointly by Targetti Sankey
S.p.A., an Italian corporation ("Targetti"), Florence Acquisition Corp., a
California corporation ("Florence") and Mr. Giampaolo Targetti ("Mr. Targetti,"
and together with Targetti and Florence, the "Reporting Persons"), supplements
and amends the Statement on Schedule 13D originally filed with the Commission on
September 27, 1999 (the "Original Statement"). The Reporting Persons are filing
this Amendment No. 2 to the Original Statement to report an increase in the
number of shares of Common Stock of the Issuer that may be deemed to be
beneficially owned by such Reporting Persons and to report that the separate
corporate existence of Florence ceased.
The following Items of the Statement are hereby supplemented and/or amended as
indicated:
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
With respect to shares of Common Stock owned by Targetti prior to
September 17, 1999, Targetti used its own working capital to purchase such
shares of Common Stock. With respect to the shares of Common Stock purchased
pursuant to the Merger Agreement described in Item 4, Targetti used its own
working capital and borrowed certain additional funds from an unsecured line of
credit (the "Credit Agreement") provided by Interbanca S.p.A. The Credit
Agreement provides for a total amount of credit of Lit. 15 billion. The interest
rate is the EURIBOR six months interest rate plus 0.75%. Interest payments are
due every six months. The term of the Credit Agreement expires on September 30,
2004. Payments of principal are Lit. 1.5 billion every six months. The aggregate
amount drawn down by Targetti under the Credit Agreement to purchase the Common
Stock purchased pursuant to the Merger Agreement and to pay related transaction
expenses is Lit. 5 billion (approximately $2.7 million). The remaining portion
of the purchase price for the shares of Common Stock, including fees and
expenses for the transaction (approximately Lit. 6.65 billion or $3.5 million),
will be paid from Targetti's existing working capital.
ITEM 4. PURPOSE OF THE TRANSACTION.
On September 17, 1999, Targetti, Florence and the Issuer entered into a
Merger Agreement (the "Merger Agreement"). The Merger Agreement provides, among
other things, that subject to its terms and conditions, at the Effective Time,
as defined below, Florence shall be merged with and into the Issuer (the
"Merger") in accordance with the California General Corporation Law (the
"CGCL"). Effective upon the Merger, the separate existence of Florence (except
as it may be continued by operation of law) shall cease, and the Issuer shall
continue as the surviving corporation (the "Surviving Corporation"). On the date
of the closing, Targetti, Florence and the Issuer will cause the Merger to be
consummated by filing a properly executed agreement of merger in accordance with
the CGCL which shall be effective upon filing or on such later date as may be
specified therein (the time of such effectiveness being the "Effective Time").
The Articles of Incorporation of Florence in effect at the Effective
Time shall be the Articles of Incorporation of the Surviving Corporation, until
thereafter amended in accordance with the provisions thereof and as provided by
the CGCL. The Bylaws of the Issuer in effect at the Effective Time shall be the
Bylaws of the Surviving Corporation, until thereafter amended in accordance with
the provisions thereof and the Articles of Incorporation of the Surviving
Corporation and as provided by the CGCL. Following the Effective Time, and until
their respective successors are duly elected or appointed and qualified, (a)
Paolo Targetti, Alvaro Andorlini, Lorenzo Targetti, Charles Kimmel and Terrence
Walsh shall be the directors of the Surviving Corporation and (b) Lorenzo
Targetti shall be the Chairman of the Board of Directors of the Surviving
Corporation, Terrence Walsh shall be the Chief Executive Officer and Vice
Chairman of the Board of Directors of the Surviving Corporation and Charles
Kimmel shall be the President and Chief Financial Officer of the Surviving
Corporation.
At the Effective Time, by virtue of the Merger and without any action
on the part of the holder thereof: (a) each issued and outstanding share of
common stock, par value $0.001 per share, of Florence ("Florence Common Stock")
shall be converted into and become one fully paid and nonassessable share of
common stock, par value $0.001 per share, of the Surviving Corporation
("Surviving Corporation Common Stock") and each certificate representing
outstanding shares of Florence Common Stock shall at the Effective Time
represent an equal number of shares of Surviving Corporation Common Stock; (b)
all shares of common stock, par value $0.001 per share, of the Issuer ("Issuer
Common Stock") that are owned by the Issuer as treasury stock and any shares of
Issuer Common Stock owned by any Subsidiary of the Issuer, Targetti, Florence or
any other wholly - owned Subsidiary of Targetti shall be canceled and retired
and shall cease to exist and no stock of Targetti or other consideration shall
be delivered in exchange therefor; and (c) each issued and outstanding share of
Issuer Common Stock (other than shares to be canceled in accordance
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with subsection (b) of this paragraph and other than shares whose holders
exercise dissenters' rights) shall be converted into the right to receive Four
Dollars and Fifty Cents ($4.50) in cash (the "Merger Consideration") and all
such shares of Issuer Common Stock shall no longer be outstanding and shall
automatically be canceled and retired and shall cease to exist, and each holder
of a certificate representing any such shares shall cease to have any rights
with respect thereto, except the right to receive the Merger Consideration, upon
the surrender of such certificate in accordance with the terms of the Merger
Agreement, without interest.
All outstanding Issuer Stock Options (defined as options to purchase
Issuer Common Stock held by current and former employees, consultants, vendors,
customers, officers and directors of the Issuer which were granted under the
Issuer's 1994 Stock Option Plan, 1995 Stock Option Plan, 1995 Non-Employee
Director Stock Option Plan and the 1997 Equity Incentive Plan), whether or not
then vested or exercisable, shall be made fully vested and exercisable and
canceled by the Issuer immediately before the Effective Time, and thereafter,
the holders' sole right shall be to, and the holders thereof shall, receive from
the Merger Consideration, but the holders exercising dissenters' rights with
respect to such shares shall only be entitled to such rights as are granted by
the CGCL. Notwithstanding the provisions of this paragraph, if any holder of
shares of Issuer Common Stock who demands dissenters' rights with respect to
such shares shall effectively withdraw or lose (through the failure to perfect
or otherwise) such holder's dissenters' rights under the CGCL, then, as of the
Effective Time or the occurrence of such event, such holder's shares shall
automatically be converted into and represent only the right to receive the
Merger Consideration upon surrender of the applicable Certificate(s) as provided
herein. The Issuer shall give Targetti (i) prompt written notice of any written
demands for payment with respect to any shares of Issuer Common Stock pursuant
to dissenters' rights, and any withdrawals of such demands or losses of such
rights, and any other instruments served pursuant to the CGCL, and (ii) the
opportunity to participate in all negotiations and proceedings with respect to
demands for dissenters' rights. The Issuer shall not, except with the prior
written consent of Targetti, voluntarily make any payment with respect to
demands for dissenters' rights or offer to settle or settle any such demands.
The Merger Agreement and the Merger are conditioned upon, among other
things, the approval and adoption by the requisite vote of the shareholders of
the Issuer in accordance with the applicable provisions of the Issuer's Article
of Incorporation and the CGCL. The Merger is also conditioned upon there being
no foreign or domestic, federal, state or local, law, ordinance, rule,
administrative interpretation, regulation, order, writ, injunction, directive,
permit, judgment, decree or other requirement of any governmental authority. The
Merger is also conditioned upon satisfaction of all requirements of any
applicable foreign competition and antitrust statues and regulations.
In connection with, and concurrently with, the execution and delivery
of the Merger Agreement, Targetti and each of Terrence and Marilyn Walsh, Peter
Shaw, Gordon C. Westerling, Charles Kimmel, Vincent Monte, Gerald E. Morris,
Intelite International N.V. and Gordon C. Westerling, as trustee of the
Westerling Family Trust (collectively, the "Shareholders") entered into voting
agreements, each dated September 17, 1999 (each a "Voting Agreement," and
collectively, the "Voting Agreements"). The Voting Agreements relate to an
aggregate 436,170 shares of the Issuer's Common Stock owned by the Shareholders,
which represents approximately 36% of the shares of Common Stock outstanding.
Pursuant to the Voting Agreements each Shareholder has agreed, among other
things, that during the period commencing September 17, 1999 and continuing
until the first to occur of the Effective Time or the date on which the Merger
Agreement is terminated in accordance with its terms, at any meeting of the
holders of Common Stock, however called, or in connection with any written
consent of the holders of Common Stock, the Shareholder shall vote (or cause to
be voted) all shares of Common Stock held of record or beneficially owned by the
Shareholder, whether heretofore owned or hereafter acquired, (collectively, the
"Shares"): (i) in favor of the Merger, the adoption of the Merger Agreement by
the Issuer and the approval of the terms thereof, and each of the other
transactions and actions contemplated by the Merger Agreement (and the matters
related to the consummation thereof) and any actions required in furtherance
thereof; and (ii) against any action or agreement that would result in a breach
in any respect of any covenant, representation or warranty or any other
obligation or agreement of the Issuer under the Merger Agreement or that would
result
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in any of the conditions to the obligations of the Issuer under the Merger
Agreement not being fulfilled. Each of the Voting Agreements terminates upon the
termination of the Merger Agreement or upon the Effective Time.
At a duly called and constituted meeting of the shareholders of the
Issuer held on November 11, 1999, the shareholders duly approved and authorized
the Merger and the transactions contemplated thereby. On November 30, 1999, an
Agreement of Merger was filed with the Secretary of State of the State of
California. Upon the consummation of the Merger, the Issuer, as the Surviving
Corporation in the Merger, became a wholly owned subsidiary of Targetti, and
the separate corporate existence of Florence ceased.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
As of November 30, 1999, under the definition of "beneficial ownership"
as set forth in Rule 13d-3 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), Targetti and Mr. Targetti may be deemed to have beneficial
ownership of 1,236,723 shares of Common Stock of the Issuer. Such shares
represent 100% of the outstanding shares of the Common Stock of the Issuer.
Targetti, by virtue of the Merger Agreement, may be deemed to have the power to
direct the voting and the disposition of the shares of Common Stock of the
Issuer. Mr. Targetti, as the majority shareholder of Targetti and by virtue of
the Merger Agreement, may be deemed to have the power to direct the voting and
the disposition of the shares of Common Stock of the Issuer.
Neither the filing of this Schedule 13D nor any of its contents shall
be deemed to constitute an admission that the Reporting Persons are the
beneficial owners of the Common Stock referred to in this paragraph for purposes
of Section 13(d) of the Exchange Act or for any other purpose, and such
beneficial ownership is expressly disclaimed.
(c)-(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
Pursuant to the terms of that certain Employment Agreement, dated as of
November 30, 1999 by and between Terrence Walsh and the Surviving Corporation,
Terrence Walsh will receive shares of common stock of the Surviving Corporation
equal to a 7.5% ownership interest.
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
Exhibit 7.1* Joint Filing Agreement, dated September 27, 1999, by and between Targetti Sankey S.p.A.
and Florence Acquisition Corp.
Exhibit 7.2* Merger Agreement, dated September 17, 1999, by and among Targetti Sankey S.p.A.,
Florence Acquisition Corp. and Tivoli Industries, Inc.
Exhibit 7.3* Voting Agreement, dated September 17, 1999, by and between Peter Shaw and Targetti
Sankey S.p.A.
Exhibit 7.4* Voting Agreement, dated September 17, 1999, by and between Gordon C. Westerling and
Targetti Sankey S.p.A.
Exhibit 7.5* Voting Agreement, dated September 17, 1999, by and among Terrence Walsh, Marilyn Walsh
and Targetti Sankey S.p.A.
Exhibit 7.6* Voting Agreement, dated September 17, 1999, by and between Charles Kimmel and Targetti
Sankey S.p.A.
Exhibit 7.7* Voting Agreement, dated September 17, 1999, by and between Vincent Monte and Targetti
Sankey S.p.A.
Exhibit 7.8* Voting Agreement, dated September 17, 1999, by and between Gerald E. Morris and Targetti
Sankey S.p.A.
Exhibit 7.9* Voting Agreement, dated September 17, 1999,
by and between Gordon C. Westerling, as Trustee
of the Westerling Family Trust, and Targetti
Sankey S.p.A.
Exhibit 7.10* Voting Agreement, dated September 17, 1999, by and between Intelite International N.V.
and Targetti Sankey S.p.A.
Exhibit 7.11 Credit Agreement, dated August 27, 1999, by and between Targetti Sankey S.p.A. and
Interbanca S.p.A.
</TABLE>
*Filed previously
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
Dated: November 30, 1999
TARGETTI SANKEY S.P.A.
By: /s/ Lorenzo Targetti
-----------------------------
Name: Lorenzo Targetti
Title: Managing Director
<PAGE> 9
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
Dated: November 30, 1999
FLORENCE ACQUISITION CORP.
By: /s/ Lorenzo Targetti
-----------------------------------------------
Name: Lorenzo Targetti
Title: President and Chief Financial Officer
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
Dated: November 30, 1999
GIAMPAOLO TARGETTI
By: /s/ Giampaolo Targetti
--------------------------
Name: Giampaolo Targetti
<PAGE> 1
EXHIBIT 7.11
Medium Term Financing Contract pursuant to D.P.R. 29 September 1973 n. 601 title
IV, by and between Interbanca S.p.A., a bank located in Milan (hereinafter
"Interbanca") and Targetti Sankey S.p.A., a corporation located in Florence
(hereinafter the "Client").
RECITALS
(a) the main business activity of the Client is the design, manufacturing
and marketing of lighting systems;
(b) the Client has requested a financing of Lit. 15 billion from
Interbanca to be used for increasing of its cash reserves
(c) Interbanca intends to grant such loan upon its review of the financial
information provided by the Client
(d) that each aforementioned party intends to enter in the following
agreement
NOW, THEREFORE, in consideration of the foregoing the parties intend to be
legally bound as follows:
ARTICLE 1
Interbanca will grant to the Client, in full compliance with applicable law, a
financing of Lit. 15 billion to be used as described in the recitals above at
(b).
ARTICLE 2
The financing amount will be made available to the Client through one of
Interbanca's branches. The total amount of the financing shall be funded to the
Client for an amount of Lit. 10 billion within September 30, 1999 and for an
amount of Lit. 5 billion within December 12, 1999. The Client agrees that
Interbanca may terminate this contract if the Client will sustain any changes in
its legal or financial situation which could preclude the Client's performance
of its obligations under this contract. In the eventuality of such a
termination the Client agrees to be responsible for all of the expenses,
including tax expenses, relating to this contract.
ARTICLE 3
(1) The client agrees to pay the following interest for each semester
calculated on the basis of a 365 days year:
(a) INDEX + SPREAD
- -- INDEX: the EURIBOR six months interest rate quoted at 11 AM in the
Reuters news service and as published the next day on the "Sole 24
Ore."
- -- SPREAD: 0.75 percentage points.
(b) The INDEX will be quoted as of the second business day preceding the
semester for which interest is due. For the first interest payment, the
INDEX will be quoted as of the second day preceding the funding date.
Business days will be determined with reference to the calendar adopted
by the TARGET system ( Transeuropean Automated Real Time Gross
settlement Express Transfer).
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(c) The interest rate as determined by using the formula in (a) above will
be rounded up to 0,001%. If the interest rate in (a) above can not be
calculated, Interbanca and the Client shall agree to an interest rate
for that semester.
(2) The client agrees to pay the amount set by the substitutive tax
required by Art. 18 of D.P.R.29.9.1973 No. 601 as amended.
The interest payments and the relative costs and expenses shall be due in six
months installments. Interest payments will be due from the first funding date
until March 31, 2000. After such date the interest payments will be calculated
only on the amount of principal outstanding as provided in Article 5 below.
Taxes will be deducted from the funding amounts.
ARTICLE 4
The term of this financing will expire on September 30, 2004. The principal
amount shall be reimbursed in 10 payments due every six months as provided by
Article 5 below.
ARTICLE 5
The Client shall reimburse the principal of this financing as follows:
<TABLE>
<S> <C>
on March 31, 2000 first installment of Lit 1.5 billion
on September 30, 2000 second installment of Lit 1.5 billion
on March 31, 2001 third installment of Lit 1.5 billion
on September 30, 2001 fourth installment of Lit 1.5 billion
on March 31, 2002 fifth installment of Lit 1.5 billion
on September 30, 2002 sixth installment of Lit 1.5 billion
on March 31, 2003 seventh installment of Lit 1.5 billion
on September 30, 2003 eighth installment of Lit 1.5 billion
on March 31, 2004 ninth installment of Lit 1.5 billion
on September 30, 2004 tenth installment of Lit 1.5 billion
</TABLE>
ARTICLE 6
Interbanca will fund the amounts due to the Client at the bank chosen by the
Client. All the amounts due to Interbanca shall be paid by Client using the
National Interbank Network (RNI). Eventual currency losses shall be borne by the
Client.
ARTICLE 7
In case of delays in the payments of interest or principal due, or for any other
defaults by the Client, Interbanca will assess a penalty interest which shall be
equal to the six month EURIBOR interest rate plus 3% as quoted on the second
business day preceding January 1st and July 1st of each year. This penalty
interest shall be automatically assessed, without any notice requirement, on
every 30th of June and 31st of March of each year.
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ARTICLE 8
This contract is subject to certain tax benefits pursuant to Title IV of D.P.R.
29/9/1973 No. 601 as amended.
ARTICLE 9
The Client approves all of the restrictive covenants, representation, and
warranties contained in Attachment A attached to this contract. Interbanca shall
have the power to change certain terms of this contract pursuant and in
compliance with Artt. 118 and 161, sub 2 of the Legislative Decree 1 September
1993 No. 385. Pursuant to Art. 117, sub 5 of the above Legislative Decree the
Client agrees to such power and expressly approves pursuant to Art.1341 of the
C.C.
ARTICLE 10
All of the clauses of this contract and of the Attachment A are essential and
non-divisible. Modifications and amendments to this contract will be enforceable
only if in writing.
ATTACHMENT A
Various Article 1. The Client shall for the duration of the
Covenants of the financing and until the payment of all outstanding
Client amounts of principal and interest due:
(a) immediately communicate to Interbanca any
decision for a merger, divestiture, liquidation,
change in the certificate of incorporation,
reductions of the share capital, bankruptcy or other
extraordinary actions not in the ordinary course of
business;
(b) send Interbanca, within 60 days of the relative
shareholder's approval, its financial statements;
(c) communicate to Interbanca any additional medium
or long term debt to be incurred;
(d) immediately communicate to Interbanca any changes
to its business activities;
(e) provide Interbanca with any and all documents
Interbanca shall request;
(f) notify Interbanca of any event or change of
events which may substantially effect its financial
condition;
Obligations of the Article 2. The Client may not defer, for any reason
Client which May whatsoever including a lawsuit among the parties of
not be Deferred this financing contract, its obligations to pay all
of the amounts due at the set dates or any of its
other obligation under this financing contract.
Expenses Article 3. The Client shall be responsible for all
costs and expenses relating to this financing
contract.
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Truthfulness of
Financial
Information Article 4. The Client represents and warrants as to
the truthfulness of the financial statements and of
the other documentation provided to Interbanca.
Termination Article 5. The Client expressly acknowledges and
accepts the following as valid grounds for the
termination of this financing contract by Interbanca;
(a) a delay or default, including partial payment, in
the payment of any of the principal and/or interests
amounts due;
(b) a merger, divestiture, liquidation, change in the
certificate of incorporation, reductions of the share
capital, bankruptcy or other extraordinary actions
not in the ordinary course of business, without the
prior written consent of Interbanca;
(c) any material differences with the financial,
legal or any other documentation provided by the
Client to Interbanca;
(d) the filing of a bankruptcy proceeding or any
other event which evidences a worsening of the
financial situation of the Client or which may
substantially negatively effect the regular business
of the Client, or the default of the Client on any
other financing contract with Interbanca.
(e) the occurrence of any of the events contemplated
by Art. 1186 C.C.
(f) the default or delay on any of the obligations of
the Client pursuant to this financing contract
Penalties Article 6. if any of the events contemplated by
Article 5 above should occur, this financing contract
shall automatically terminate without any need for a
judicial determination on such termination.
Interbanca shall send notification to the Client of
such termination by registered mail. In the event of
such termination all amounts of principal and
interest outstanding, including the interest that
Interbanca expects to receive for the duration of
this financing, and including related costs and
expenses, shall become immediately due. The penalty
interest will be due on all of such sums and will be
assessable every 30th of June and 31st of March of
each year. All of the present and future guarantees
for this financing given to Interbanca shall be
enforceable at the discretion of Interbanca. The
Client will further be responsible for a damages
payment equal to 2% of the residual amounts
outstanding at the date of termination.
Prepayment Article 7. After 18 months from the execution of this
contract the Client may prepay without
penalty all of the outstanding amounts by giving
Interbanca 1 month notice. If such prepayment will
not be on one of the set dates for the payment of the
principal or the interests amounts, the Client shall
pay the interest due to Interbanca until the next
payment date. If the Client shall prepay only part of
the outstanding amounts, such pre-payment will
proportionally reduce the subsequent payment
installments set by this contract, unless Interbanca
shall decide otherwise. Any prepayment will not
re-establish any of the financing availability
existing prior to such pre-payment.
Taxes Article 8. The Client shall be responsible for the
taxes due pursuant Artt. 17 and 18 of D.P.R.
29/9/1973 No. 601 and for any future taxes which may
be payable by Interbanca pursuant this financing
contract. Interbanca may deduct such taxes from the
funding amounts or may simply request payment from
the Client.
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<PAGE> 5
Successors and Article 9. All of the obligations assumed by the
Assigns Client pursuant to this financing contract shall bind
any successor or assign of the Client.
Jurisdiction and Article 10. The Tribunal of Milan shall have
Legal Fees jurisdiction on this financing contract. Any fees and
all legal expenses and fees will be of the sole
responsibility of the Client.
Effectiveness of Article 11. The Client recognizes the full
the Accounts effectiveness as evidence of the accounting of
Interbanca Interbanca for the determination the Client's
outstanding debt.
Election of Article 12. For the purposes of this financing
Domicile contracts, Interbanca elects its domicile in Milan
and the Client in Florence.
5
