FRAMEWORK AGREEMENT
This Agreement is made this _____ day of __________, 2006, BY AND BEETWEEN:
- XXYY, a ________ company with registered offices at __________________,
_________, (hereinafter referred to as "XXYY" or “_______ PART”)
AND
- YYYY, an Italian company with registered offices at ___________, Italy, (hereinafter
referred to as “ITALIAN PART”)
(collectively, the "Parties" or "Members")
RECITALS
A) WHEREAS, ITALIAN PART is an Italian company which, inter alia, is in the
business of designing, projecting, manufacturing, marketing and selling, in Italy and
abroad, a wide range of machines and plants for concrete production, including
______________, on the basis of its own valuable Technology and Know-How;
B) WHEREAS, ITALIAN PART sells and markets its products with the trade mark
and trade name “ITALIAN PART” legally owned and registered in Italy and other
countries;
C) WHEREAS, the ________ PART is, inter alia, in the business of
_________________________;
N.B.: specificare attività partner locale ed eventuali rapporti attuali con ITALIAN
PART
D) WHEREAS, the Parties intend to enter into a joint venture and form a new company
(hereinafter referred to as "NEWCO"), having registered offices in ________, _______,
and dealing in the manufacture, assembly, domestic selling and after sale services of
____________:
E) WHEREAS, ITALIAN PART, for such purposes, will supply to NEWCO, which
will purchase from ITALIAN PART, some components to be used for manufacturing
and/or for assembling Products, on such terms and conditions as better defined
hereinbelow;
F) WHEREAS, the distribution and marketing of products manufactured and/or
assembled by NEWCO shall be directly handled by NEWCO within the domestic
market of _______; any and all distribution or sale of such products outside the territory
of ______, in any, shall be handled exclusively through ITALIAN PART acting ad sole
and exclusive distributor:
G) WHEREAS, once signed by the parties hereto, this Framework Agreement, while
fully binding on such parties and subject to immediate execution by the express intent
thereof, shall, nevertheless, be completed by one or more other agreements to be
executed by and between one or more of the parties hereto as further specified in this
Agreement;
H) WHEREAS, in any event, the obligations of the parties hereunder are contingent
and subject to any and all authorisations which may be required by either the Italian or
________ Governments for execution hereof.
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NOW, THEREFORE, in consideration of the premises, the mutual covenants,
agreements and annexes contained herein, which form an integral part of this
Framework Agreement, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
PART ONE:
OBJECT, SCOPE, AND DURATION OF THE JOINT VENTURE
1.1. Object and scope of the Joint Venture
The object and scope of this Joint Venture Agreement are, subject to the terms and
conditions better defined hereinbelow and in the annexed contracts:
- production and / or assembly, using ITALIAN PART’s components, technology
and know how, of the following products ___________________ (hereinafter
referred to as “Products”);
- marketing and sale of Products within the territory of __________ and giving
the relevant after sale service.
The parties may add new products to the list hereinabove, by means of unanimous
written consent.
1.2. Duration of the Joint Venture (indefinite period)
Subject to the provisions contained herein (and/or in the annexed contracts) on early
termination of this agreement (and/or the annexed contracts), and/or on single PART’s
abandonment from such agreements, this joint venture agreement shall come into effect
from the date of execution hereof and shall remain in force for an indefinite period
(VARIANTE: “shall remain in force for a period of __ years from such date”)
PART TWO:
PROVISIONS REGARDING NEWCO
2.1 Incorporation of NEWCO.
The Members shall forthwith cause NEWCO to be formed as a limited liability
company with foreign investment capital, and the Articles of Association and
Regulations of NEWCO shall contain the terms and conditions agreed by the Members
in this Framework Agreement.
2.2 The Members.
The Members of NEWCO shall be the following:
- XXYY, which shall subscribe 40 % (forty percent) of the Capital Contribution;
- ITALIAN PART, which shall subscribe 60 % (sixty percent) of the Capital
Contribution.
Any admission of new members in the NEWCO shall be subject to the unanimous
consent of the Members, save and except the provisions of art. 2.8 (transfer of interests)
hereinafter, and the free admission in the NEWCO of the companies included in
ITALIAN PART’s family of companies, and transfer of interests to them.
2.3 Name of NEWCO.
NEWCO shall be called:
- ITALIAN PART _______, in ________ language
- ITALIAN PART _______ ltd, in English language
In the event NEWCO's name as stated above is not legally available for registration in
_________, the Members shall agree upon the choice of another legally available name.
2.4 Registered Office and Principal Place of Business.
NEWCO's registered office and principal place of business shall be at ____________,
______.
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2.5 Capital of NEWCO.
NEWCO shall have an initial Capital Contributions of ________ ____ (___________
_____).
The Members agree to subscribe to the entire amount of NEWCO's Capital
Contributions as per the above-stated percentages.
The Capital Contribution of each Member shall be paid:
- for XXYY, in cash
- for ITALIAN PART, in kind, namely conceding to the NEWCO the right to use
the trade name and trade mark “ITALIAN PART” in accordance with terms and
conditions of this agreement and conceding the right to use the ITALIAN PART
Technology and Know How concerning Products upon terms and conditions
hereof.
The Capital Contributions of NEWCO to be paid in cash shall be paid by Parties in the
following instalments:
- 80% of the cash contribution upon incorporation of NEWCO
- the balance at request of the board of directors.
The organisation form of the NEWCO is a limited liability company. The Members are,
shielded from the NEWCO’s debts, liabilities and obligations. The personal liability of
the Members is limited to the capital contributions set forth above. Any additional
capital contributions of the Members in the NEWCO may be determined, from time to
time, with the unanimous written consent of the Parties.
2.6 Articles of Incorporation and Regulations.
The Articles of Association and Regulations of NEWCO shall be in the form of Annex
1 attached hereto .
2.7 Controversies.
Any controversy between Members and /or between Members and NEWCO over this
Framework Agreement or over any of the other agreements provided for herein and
which the Members intend to enter into, shall be finally and exclusively settled by
arbitration as provided in PART SIX of this Agreement.
2.8 Transfer of Interst
The Articles of Association and Regulations of NEWCO shall contain the following
pre-emptive rights clause for Members intending to Transfer their Interest (or a part
thereof) to a PART that, at such time, does not already own Interest in NEWCO ("third
PART"):
(a) No Member may Transfer Interests of NEWCO to a third PART, except in
accordance with the terms of this Section 2.8;
(b) In the event a Member decides to transfer all or less than all of its Interests
to a third PART, such transferring Member (the "Offeror") shall first deliver a written
notice (the "Offer Notice") to the other Member(s) (the "Offeree"), by means of a
registered letter, which notice shall specify:
(i) the Interest owned by the Offeror which he wishes to transfer (the "Offered
Interests");
(ii) the proposed consideration being offered for the Offered Interests (the
"Offered Price"); and
(iii) the intended purchaser of the Offered Interests and all other terms and
conditions of the offer.
The Offer Notice shall constitute an irrevocable offer by the Offeror to sell to the
Offeree the Offered Interests at the Offered Price therein specified, PROVIDED THAT:
(c) If the Offeree objects that the Offered Price is too high, the Offered Price
shall be determined by the valuation of a reputable firm of independent appraisers
chosen by common agreement of the Members. In the event the Members do not agree
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on the firm of accountants for the valuation and determination of the Offered Price, any
Member may request, at its discretion, whether a valuation by arbitration in accordance
with the provisions contained in PART SIX of this Agreement or the choice of the
accountants by the arbitration Institution indicated in PART SIX.
(d) In making the above determination, the firm of independent appraisers or
arbitrators, after having valued the Assets of NEWCO shall take into account NEWCO's
goodwill in a sum equal to the average profit, after taxes, made by NEWCO either
during the previous three year period, or, if at the time of the appraisal NEWCO has not
been in existence for three years, the goodwill shall be valued at the approximated
average yearly profit, after taxes, made by NEWCO for such shorter period of time of
NEWCO's activity.
(e) Within 60 (sixty) days following its receipt of the Offer Notice, the Offeree
shall notify the Offeror as to the number of the Offered Intests which it is electing to
purchase at the Offered Price ("Offeree Acceptance").
(f) If the Offeree does not deliver an Offeree Acceptance within 60 days
following its receipt of the Offer Notice or if the Offeree Acceptance does not provide
for the purchase by the Offeree of all of the Offered Interests, then, within the earlier of
120 days following the expiration of such 60-day notice period or within 120 days
following the receipt of the notice of a refusal to purchase all or a part of the Offered
Interests on behalf of the Offeree, the Offeror may sell the remaining Offered Interests
that the Offeree does not wish to purchase to the intended purchaser named in the Offer
Notice (The "Third PART Transferee") , at a price, pro rata, not less than the Offered
Price and on such other terms and conditions as are no more favourable to the proposed
Third PART Transferee than those specified in the Offer Notice. Upon any such sale,
the Third PART Transferee of such Interests shall execute an agreement in form and
substance satisfactory to the Offeree pursuant to which such Third PART Transferee
agrees that the Interests it acquired from the Offeror are subject to the provisions of this
Agreement and that the Third PART Transferee shall execute a joinder to this
Agreement agreeing to be bound as a Member. If the Offeror does not complete the sale
of the Offered Interests within such 120 day period, the provisions of this Section 2.8
shall again apply, and no sale of Interests of the Offeror shall be made otherwise than in
accordance with the terms of this Agreement.
This pre-emptive rights clause does not operate and shall not apply with reference to
transfers of interests in the NEWCO between ITALIAN PART and other companies
included in the same family of companies.
2.9 Abandonment of the Business of NEWCO by ITALIAN PART and
Consequences.
Notwithstanding anything to the contrary contained in art. 2.8 above or elsewhere, in the
event ITALIAN PART decides to abandon the business of NEWCO, the ________
PART shall purchase ITALIAN PART's entire Interests in NEWCO within 90 (ninety)
days, either at the price agreed by and between the Members or in accordance with the
terms of art. 2.8 (d). In such event, if _____ do not purchase ITALIAN PART interests
in NEWCO within the term of 90 (ninety) days hereinabove, the Members shall
forthwith cause NEWCO to be put into voluntary liquidation.
2.10 Fiscal Year of NEWCO.
The Fiscal Year for NEWCO shall run each year from January 1st to December 31st.
The First Fiscal Year shall begin on the date NEWCO is registered and shall end on
December 31st of the same year.
2.11 NEWCO's Legal Reserve.
NEWCO shall constitute a legal reserve from part of its net profit, as better defined in
the Articles of Association and Regulations (Annex 1), equal to __% (____ percent) of
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the net profit. Such profit shall go to increase NEWCO's legal reserve up to an amount
equal to, at least, __% (____percent) of NEWCO's Capital Contribution.
Any net profit not attributed to the legal reserve, shall be distributed among the
Members in proportion to their respective Interests, unless otherwise decided by the
General Meeting of Members .
2.12 The Governing Bodies of NEWCO.
The Governing Bodies of NEWCO shall be such as are permitted under ________ law,
namely:
a) The General Meeting of Members;
b) The Board of Directors.
A Board of Auditors (or Fiscal Supervisors) shall be appointed only in the event it is
required by way of a mandatory provision under ________ law. In such an event, the
members of the Board of Auditors (or Supervisors) shall be elected by the General
Meeting in accordance with the procedures provided for the appointment and election of
the Board of Directors. The Powers and Duties of the Board of Auditors and the
individual members thereof shall be those established by law.
2.13 The General Meeting.
The General Meeting shall have exclusive power over the following matters:
a) Approval of the balance sheet and distribution of profits;
b) Election and removal of directors, Managing Member(s), Non Member Managing
Director, and their remunerations;
c) Amendment of the Articles of Association and Regulations;
d) Ratification of agreements entered into on behalf of NEWCO prior to the
establishment and registration thereof;
Notwithstanding anything else contained herein to the contrary, the Members and
NEWCO itself (once and while incorporated) hereby agree to have NEWCO ratify all
the agreements herein agreed to by the Members;
e) Claims for damages made against Members and directors, as well as provisions
concerning the representation of NEWCO in any legal action initiated against any of the
directors;
f) Merger or consolidation of NEWCO with any other business, as well as the
liquidation, winding-down or transformation of NEWCO;
g) The transfer, sale, lease, or assignment of all or substantially all of NEWCO's assets;
h) Any and all other matters which either the law, this Framework Agreement or the
Articles of Association and Regulations shall reserve for the exclusive power of the
General Meeting.
2.14 Time, Place and Call of the General Meeting.
The General Meeting of Members of NEWCO may be called at the initiative of the
Chairman of the Board, and/or the Managing Director, and/or each Member. The
General Meeting shall be convened by prior written notice of 60 (sixty) days, unless
otherwise agreed by the Members. Notices shall be mailed to the Members by registered
letter with return receipt and by telex or telefax and shall contain the full Agenda.
Meetings of the Members shall be held annually at the registered offices of NEWCO or
at such other place, in ______ or abroad, permitted by law, as may be specified in the
notice. Members may participate at the General Meetings either in person or by means
of a legally authorised proxy. Any and all actions of the General Assembly shall be
taken by a vote of 51% of the outstanding Capital Contributions, with the exception of
such actions where mandatory provisions of the law expressly require a unanimous vote
or a more qualified majority vote.
2.15 Managing of the NEWCO.
The business and affairs of NEWCO shall be managed by a Board of Directors
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The number of directors on the Board of NEWCO shall not less than 2 (two) and not
more than 7 (seven).
The Board shall initially consist of 3 (three) directors of which 2, including the
Chairman, shall be appointed by ITALIAN PART and 1, acting as Vice Chairman, shall
be appointed by the _____ Part.
The term of office for the Directors, including the Chairman and Vice Chiarman, shall
be _ (_____) years, and each individual Director may be confirmed in office for any
further successive _ (____) years terms by the relevant appointing party
In the event an elected director resigns from the Board for any reason whatsoever, the
remaining directors shall also resign from office forthwith and a general meeting of
Members shall be convened immediately in order to elect a new Board.
Meetings may be called by the Chairman and / or the Vice Chairman of the Board,
whenever deemed necessary, and such meetings shall be convened by prior written
notice (including telex or telefax) of at least 20 (twenty) days, unless otherwise agreed,
in written form, by the Members. Meetings may be held at such time and place (either in
________ or elsewhere) as the Board shall fix, except that the first meeting of a newly
elected Board shall be held as soon as possible after its election.
Actions and resolutions of the Board of Directors shall be taken, with the vote of the
majority of the members, provided, however, that no resolutions shall be passed or
decision taken by the Board unless at least 1 (one) director representing ITALIAN
PART shall have voted in favour of such resolution or decision.
The Board of Directors may delegate its powers to either the Chairman, the VicePresident or to one or more Managing Directors.
In any case, any and all decisions on the following matters shall be taken by the Board
and shall not be delegate:
a) the acquisition, purchase, sale or pledge of personal and real property;
b) the acquisition, purchase, sale or pledge of securities;
c) mortgage registrations;
d) warranties of any kind by the NEWCO in favour of third parties;
e) opening of medium and long-term credit with banks and/or other financial
institutions, excluding credit opened by discounts on bills of exchange,
promissory notes and other credit instruments;
f) approval of annual and any interim production and operating plans, the annual
and any interim financial budget and operating budget, including anticipated
operating costs and expenses, and the annual and any interim financial
statements of NEWCO, and any significant change in any of the foregoing;
g) the choice of business, legal and tax advisors, including the appointment of
NEWCO’s independent auditor(s);
h) the change of the production and / or assembly site of the NEWCO, and / or the
opening o new production and / or assembly site;
i) rental or construction of additional NEWCO facilities;
j) execution of any and all agreements or contracts both having a value of _______
or more USD, and any and all agreements that commit NEWCO for more than
two years; and, in any event, execution of any and all distribution, agency and
know how, technology and trade mark licence agreements;
k) execution of insurance policies;
l) employment (including compensation and dismissal decisions) of other
management of NEWCO;
m) establishment of branch offices or service centres directly owned by NEWCO,
or the organisation or acquisition of subsidiaries and new ventures in _______
or abroad;
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n) any delegation of powers to the a General Manager.
2.16 Accounting, Budget and Banking Rules.
NEWCO shall keep correct and complete books and records of account in accordance
with ________ and European Union accounting principles in order to allow ITALIAN
PART to better comprehend NEWCO's accounts.
NEWCO shall, at its expense, keep quarterly balance sheets in the English language and
forward copies thereof to ITALIAN PART’s registered offices in Italy each and every
quarter.
NEWCO shall issue instructions to the banks and financial institutions with which
NEWCO does business, requiring the delivery of monthly statements, in English
language, of account to NEWCO, with copies thereof to be sent to ITALIAN PART's
registered office in Italy.
PART THREE:
TRADE MARKS, TRADE NAME AND INTELLECTUAL PROPERTY
3.1. Trade marks and trade name of the NEWCO
The Parties agree and acknowledge that the trademark and trade name “ITALIAN
PART” and the business and goodwill pertaining to this name are in the sole and
exclusive property of ITALIAN PART. Consequently, the NEWCO and/or the
________ PART shall not, directly and / or indirectly, register and / or use, any
trademark(s) and / or trade name(s) or any other symbol equal and / or confusiongly
similar to ITALIAN PART, save and except herein provided.
The Parties and NEWCO itself acknowledge and agree that in any of the following
events: (i) ITALIAN PART cease, for whatsoever reason, to be a Part of this
Framework Agreement and / or a Member of the NEWCO; (ii) shall occur a reduction
of the Interest of ITALIAN PART in the NEWCO; (iii) termination, for whatsoever
reason, of supply agreement provided in art. 4.1 herein and/or of distribution agreement
provided in art. 5.1. herein, then NEWCO’s right to use ITALIAN PART trade mark
and ITALIAN PART Know How and Technology shall immediately terminate;
consequently, the name “ITALIAN PART” shall forthwith be cancelled from the
NEWCO name and trademarks and such and / or similar trade name and trademarks, as
well as Know How and Technology of ITALIAN PART shall no longer be used,
directly or indirectly, by NEWCO.
3.2. Know How and Technology of ITALIAN PART
The Parties acknowledge and agree that intellectual and industrial (i.e. intangible)
property rights of Products are and shall remain fully and exclusively vested on
ITALIAN PART.
______ Part, also for NEWCO, once incorporated, shall keep strictly confidential any
and all information and data pertaining to ITALIAN PART’s Technology and Know
How, included but not limited to Technology and Know How conceded in use by
ITALIAN PART to NEWCO as contribution in kind. Furthermore _______ Part, also
for NEWCO, once incorporated, shall not disclose or otherwise make available any part
of such Technology and Know How to any person, corporation or other entity, and will
not use the same other than for the fulfilment of this Agreement.
PART FOUR:
SUPPLY OF COMPONENTS AND PARTS
4.1. Supply of Products’s components and parts
ITALIAN PART will supply to the NEWCO, which will purchase from ITALIAN
PART, on terms and conditions set forth in the general conditions of sale annexed
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herein as Ann. 2, components and parts to be assembled in the Products. Unless
otherwise agreed in writing by ITALIAN PART and NEWCO from time to time, the
purchase prices will be those indicated in the ITALIAN PART’s export price lists from
time to time in force (and previously noticed to NEWCO). Unless otherwise agreed in
writing by ITALIAN PART and NEWCO from time to time, such components and parts
will be paid by means of an irrevocable Letter of Credit confirmed by the Italian Bank
designated by ITALIAN PART, and negotiable “at first demand”.
PART FIVE
MARKETING AND SALE OF NEWCO’s PRODUCTS
5.1. Marketing and sale of NEWCO’s Products
5.1.1. The Products of NEWCO will be normally sold and marketed (and relevant after
sale services rendered) within the internal market of ______ territory.
5.1.2. The marketing and sale of Products within the ______ internal market will be
made by NEWCO both directly and/or through local agents and/or distributors chosen
by the Board of Directors.
5.1.3 The marketing and sale of Products outside the territory of ________, if any, will
be made exclusively through ITALIAN PART acting as sole and exclusive distributor
upon terms and conditions set forth in Ann. 3 attached hereto.
5.1.4 Unless otherwise agreed upon from time to time in written form between
ITALIAN PART and NEWCO, the Products of the NEWCO will be marketed and sold,
both in _______ and abroad, bearing the trademark “ITALIAN PART”.
PART SIX:
FINAL PROVISIONS
6.1 Financing of NEWCO.
The Parties ad the directors of NEWCO shall verify ways and means for procuring
NEWCO all of the financing that may be necessary to the business of NEWCO.
6.2 Confidentiality.
Notwithstanding anything contained in this Agreement to the contrary, the Members
acknowledge that during the course of performing their respective obligations under this
Agreement, each may learn, obtain or be given information belonging to the other or to
NEWCO. Each PART agrees that such information shall be held in confidence and
neither used to the detriment of the other Members to this Agreement nor disclosed to
any third PART. The Members further agree to have the aforegoing obligation
subscribed by and enforced against any employee, director and/or consultant of
NEWCO and of each Member.
6.3 Government Authorizations.
The Members hereby agree to carry out and comply with all of the procedures for
obtaining any ________ or Italian government authorisation, permit, license, etc. which
may be required before this Agreement may be executed. More precisely, the ITALIAN
PART shall do its best efforts for obtaining and procure NEWCO to obtain any and all
authorisation, permits, licences etc, due according to Italian law, and the ________
PART shall do its best efforts for obtaining and procure NEWCO to obtain any and all
authorisation, permits, licences, etc, due according to ________ law.
6.4 Non-competition
For the life of this Framework Agreement, including without limitation, all Annexes
and agreements attached hereto or herein provided, and for 3 (three) following the
termination, for whatsoever reason, of this Agreement (and / or the Annexes), the
________ PART shall not, either directly or indirectly, manufacture, market and / or
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sell products which are like, similar or which may compete with Products manufactured
and / or sold by NEWCO.
6.5 Termination.
If any PART or parties to this Agreement commits a breach of any of the obligations
herein contained, then the PART or parties not in breach may immediately send notice
thereof to the PART or parties in breach so that such PART or parties may cure or
remedy the breach within 60 (sixty) days.
In the event the PART or parties in breach fail(s) to cure or remedy the breach within
the allotted time of 60 (sixty) days, then this Framework Agreement together with all
the Annexes and agreements attached hereto, may be terminated upon written
agreement and notice of the other PART or parties to be sent by telex or telefax and
confirmed by a return-receipted registered letter.
This Agreement (and / or the Annexes hereto) may also be immediately terminated
following written notice thereof by the party not in breach (or not causing the
termination event) in the following instances:
a) any bankruptcy or similar proceedings brought against one of the parties;
b) any and all breach of artt. 2.2., final part (transfer of Interests obligation); 2.16
(accounting, budget and banking rules); 3.1. (trade marks and trade name); 3.2.
(intellectual property rights - confidentiality); 5.1.2. (marketing Products outside
_______); 6.4. (non-competition).
6.6 Force Majeure.
A delay in or failure of performance of any PART shall not constitute a breach
hereunder nor be the basis for, or give rise to, any claim for damages, if and to the
extent such delay or failure is caused by force majeure, including but not limited to: acts
of God or nature, fires, floods, explosions, epidemics, riots, insurrections, revolutions,
wars (declared and undeclared), terrorism, sabotage, strikes, slowdowns, lockouts, plant
shutdowns, labor shortages, freight embargoes, unusually severe weather, acts of
government in either its sovereign or contractual capacity, or voluntary or involuntary
compliance with a later-enacted law, order, regulation, rule, or request of any
governmental authority or person purporting to act therefor or any other cause beyond a
PART's reasonable control.
6.7 Effect of Invalid Provisons.
The invalidity or unenforceability of any clause or provision of this Agreement shall not
affect the remaining clauses and provisions hereof, and each clause or provision of this
Framework Agreement shall remain valid and subject to execution to the fullest extent
allowed by law; in such case, the Parties agree to negotiate in good faith to in order to
finalise a valid and effectiveness clause(s) of analogous or equivalent content.
6.8 Entire Agreement; Amendment.
This Agreement together with its recitals and Annexes, constitutes the entire agreement
by and between the parties hereto with respect to the subject matter hereof, and
supersedes and annuls any other agreements – also verbal or otherwise – which the
Parties may have entered into previously on the same subject matter, save and except
the validity and effectiveness of any and all supply contracts and / or orders, if any,
previously entered into or placed between ITALIAN PART and NEWCO and / or the
________ PART . This Agreement may not be modified orally, nor may it be amended
or changed in any manner other than by an agreement in writing signed by all of the
parties hereto.
6.9 Communications
All communications regarding This Agreement (and the Annexes thereto) shall be sent
to the addresses herein above first set forth, unless changes have been sent in writing to
the other party(ies).
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6.10 Applicable law
This Agreement and the Annexes thereto shall be governed by and construed in
accordance with the Italian laws, save and except the Articles of Incorporation and the
Regulations of NEWCO which shall be governed by the law of the State of
Incorporation of NEWCO.
6.11 Arbitration.
Any controversy, dispute or claim arising out of or relating to this Agreement (including
the Annexes thereto) between or among the Parties, and/or among the Partie(s) and
NEWCO, including but not limited to the existence, validity, interpretation and/or
application of this Agreement, upon failure of the parties to amicably settle any such
dispute between themselves, shall be definitely and exclusively settled by binding
arbitration (without recourse to any Court until a final award has been rendered) under a
Sole Arbitrator acting as Umpire, appointed and operating in accordance with the
Arbitration Rules of Curia Mercatorum placed in Treviso, Italy. which the parties
expressly warrant and represent to know and to want incorporated as an integral part of
this Agreement. Place of arbitration shall be Verona, Italy. The language to be used in
the arbitral proceedings shall be Italian.
The decision of the arbitrator shall be final, unappealable and fully binding on the
parties, which hereby agree to spontaneously execute any such decision or award. In
default of any such execution, judgement upon any award rendered by the Umpire may
be entered in any Court having jurisdiction thereover.
6.12 Authentic Text and Counterparts.
This Framework Agreement together with the Annexes and agreements attached hereto,
with the sole exception of such agreements which by a mandatory provision of law must
be drafted in another and different language, shall be drafted in the English language,
which language shall constitute the governing language hereof and thereof. The English
language texts hereof shall constitute the only true and authentic texts and shall be
executed in multiple counterparts, each of which shall be deemed an original and
enforceable without production of the others, when signed and initialed on each page by
each of the parties hereto. Any translations hereof or thereof into any other language
shall be for a better understanding of the authentic texts.
6.13 Annexes
The following annexes form integral part of this agreement: Articles of Incorporation
and Regulations of NEWCO (Ann. 1), General Conditions of Sale from ITALIAN
PART to NEWCO (Ann. 2), Distribution Agreement between ITALIAN PART and
NEWCO (Ann. 3). In the event of any inconsistency or discrepancy between this
Framework Agreement and any of the Annexes hereto, such as without limitation, the
Articles of Incorporation and Regulations of NEWCO the provisions of this Framework
Agreement shall prevail.
6.14 NEWCO Execution.
As soon as NEWCO is incorporated, it shall sign and be bound by this Agreement.
Such execution shall have a retroactive effect to the date of this Agreement and shall
not be deemed to be a modification of this Agreement.
N.B.: va valutato se mettere una closing date per la costituzione di NEWCO
IN WITNESS WHEREOF the parties have executed this Agreement as of the date
hereinabove first set forth.
For the ________ PART
Mr
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For ITALIAN PART
Mr
For NEWCO (if and, in any event, once incorporated)
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