Sale and Purchase Agreement, dated September 19, 2018

THIS SALE AND PURCHASE AGREEMENT is made on September 19, 2018

(1)

Barnes GTE S.r.l., a company incorporated under the laws of Italy, with a corporate capital of €10,000 (fully paid-in), whose registered office is at Via delle Quattro Fontane no. 20, Rome, enrolled with the Register of Companies of Rome under no. 14912421006, represented by Mr. Michael V. Kennedy in his capacity as Chairman of the Board of Directors, and which is an indirect wholly owned subsidiary of the Parent (the Buyer); and

(2)

Barnes Group Inc., a company incorporated under the laws of Delaware (United States of America), whose principal executive offices are at 123 Main Street, Bristol, Connecticut 06010 (United States of America), represented by Mr. Christopher J. Stephens in his capacity as Senior Vice President, Finance and Chief Financial Officer, and which is the ultimate parent company of the Buyer, in its capacity as guarantor of the Buyer’s obligations hereunder pursuant to Section 12.8 (the Parent),

(3)

AGIC Gripper (Netherlands) B.V., a private company with limited liability governed by the laws of the Netherlands, having its corporate seat in Amsterdam, the Netherlands, with office address at Prins Bernhardplein 200, 1097JB Amsterdam, the Netherlands, registered with the Commercial Register of the Dutch Chamber of Commerce under number 65836405, represented by Mr. Ernest Yankulin in his capacity as authorized director and attorney-in-fact (AGIC BV or Seller);

(4)

Asia-Germany Industry 4.0 Promotion Cross-Border Fund I L.P., acting through its general partner, Asia-Germany Productivity Cross-Country Promotion (Cayman) Limited, whose registered address as at the date of this Agreement is at c/o International Corporation Services Ltd, P.O. Box 472, Harbour Place, 2nd Floor, 103 South Church Street, George Town, Grand Cayman, Cayman Islands, represented by Mr. Ernest Yankulin, in his capacity as attorney-in-fact, and which is the investment fund parent company of AGIC BV, in its capacity as guarantor of AGIC BV’s obligations hereunder pursuant to Section 12.9 (the AGIC Fund);

(5)

HDX S.À.R.L., a company incorporated under the laws of Luxembourg, having its registered office at 12, Rue Guillaume Schneider, Luxembourg L-2522, enrolled with the “Registre de commerce et des Sociètès de Luxembourg”, under number B 207796, represented by Mr. Danilo Mangano in his capacity as attorney-in-fact (HDX or Seller);

(6)

Xenon Private Equity V Limited Partnership, acting through its General Partner XGP S. à r.l., a company incorporated under the laws of Luxembourg, having its registered office at 12, Rue Guillaume Schneider, Luxembourg L-2522, enrolled with the “Registre de commerce et des Sociètès de Luxembourg”, under number B202166, represented by Mr. Danilo Mangano in his capacity as authorized director, and which is the investment fund parent company of HDX, in its capacity as guarantor of HDX’s obligations hereunder pursuant to Section 12.10 (the Xenon Fund);

(7)	the individual Quotas Seller set forth on Schedule S (Seller, and together with AGIC BV and HDX, collectively, the Quotas Sellers);

(8)	the other individual Sellers set forth on Schedule S (each a Seller and together with the Quotas Sellers, the Sellers); and

(9)

Gripper Co-Investors S.p.A., a company incorporated under the laws of Italy with registered office at Via Enzo Ferrari 2/4, Roncadelle (Brescia), Italy, having a corporate capital of Euro 100,000.00 fully subscribed for and paid-in, enrolled with the Register of Companies of Brescia (Italy) under number 03831110980, represented by Mr. Heiko von Dewitz in his capacity as Chairman (Gripper Co-Investors),

(1)

perform a due diligence investigation of the Group and Gripper Co-Investors and certain of their legal, accounting, financial, business and technical situations, comprised of the review of certain contracts, authorizations, books, records and other documents contained in the CD-Rom attached hereto as Schedule DD (collectively, the Data Room Documents), which consists of a copy of all of the documents made available on or prior to September 10, 2018 in the virtual data room hosted by Intralinks under the name “Project Gem” set up by the Sellers and the Company; and

(2)

participate in several meetings with the management of the Company and perform visits to the production sites of the Group;

(all the activities referred to in this Recital (g) are collectively referred to as the Due Diligence);

IN CONSIDERATION OF THE FOREGOING RECITALS which form an integral and substantive part of this Agreement, the Parties hereby agree and covenant as follows:

1.1 In this Agreement, including in the Schedules, Exhibits and Annexes attached hereto and in the Annexes to such Schedules (if any), the following capitalized terms shall have the following respective meanings:

Accounting Principles means in respect of the Company, the accounting principles provided for under the applicable provisions of Italian law as well as the accounting principles prepared by the Consiglio Nazionale dei Dottori Commercialisti e degli Esperti Contabili and the Organismo Italiano di Contabilità (OIC), in each case consistently applied throughout the periods involved.

Action means any action, notice, claim, complaint, charge, writ, dispute, proceeding, suit, hearing, litigation, arbitration, audit or investigation (whether civil, criminal, administrative, judicial or regulatory), or any appeal therefrom.

Affiliate means, with respect to any Person, any individual, corporation, partnership, limited liability company, joint stock company, joint venture, association, foundation (“fondazione”), trust or other entity or organization directly or indirectly (x) controlling, controlled by or under common control with such Person (it being understood that, for the purposes of this definition, the notion of control shall be interpreted in accordance with Article 2359, paragraph 1 no. 1 and 2, of the Code) or (y) subject to a relevant influence of such Person pursuant to Article 2359, paragraph 3, of the Code.

Agents shall have the meaning set forth in Section 8.17(i) of this Agreement.

Aggregate Price means an amount equal to (i) the Base Cash Price, minus (ii) the amount (if any) by which the Closing Date Net Working Capital is less than the Target Net Working Capital, plus (iii) the amount (if any) by which the Closing Date Net Working Capital exceeds the Target Net Working Capital Amount, plus (iv) the Closing Date Cash, minus (v) the Closing Date Debt, minus (vi) the Closing Date Transaction Expenses (if any).

Aggregate Price Allocation means the percentages of allocation of the Estimated Aggregate Price, the Provisional Purchase Price Amount and the Aggregate Price, as applicable, among the Sellers as set forth in Schedule A, which, as agreed among the Sellers, reflects an exit ratchet mechanism in favor of certain Sellers and shall also apply to any adjustments to the Estimated Aggregate Price and the Provisional Purchase Price Amount or any payment of the Purchase Price Holdback Amount to the Sellers pursuant to Article 7 (if any).

Aggregate Price Deficit shall have the meaning set forth in Section 7.9(a) of this Agreement.

Aggregate Price Downward Adjustment shall have the meaning set forth in Section 7.9(a) of this Agreement.

Aggregate Price Upward Adjustment shall have the meaning set forth in Section 7.9(b) of this Agreement.

AGIC BV shall have the meaning set forth in the preamble of this Agreement.

AGIC Fund shall have the meaning set forth in the preamble of this Agreement.

Agreement means this sale and purchase agreement, inclusive of its Recitals, Schedules, Exhibits and Annexes and any Annexes to such Schedules (if any).

Auditor means Ernst & Young, with registered office at Via Meravigli, 12/14, 20123, Milan, Italy or, in the event of its failure to accept the appointment pursuant to this Agreement or its subsequent waiver or termination of or withdrawal from its appointment pursuant to this Agreement, another auditing company of international standing which shall be designated by the Parties jointly, or, in the absence of agreement after 10 Business Days of good-faith negotiations, by the Chairman pro tempore of the Ordine dei Dottori Commercialisti e degli Esperti Contabili of Milan, Italy.

Base Cash Price means an amount in cash equal to €370,000,000.00 (euro three hundred seventy million/00).

Basket shall have the meaning set forth in Section 10.5(iii)(c) of this Agreement.

Benefit Plan means all employee benefit plans and all incentive, bonus, deferred compensation, welfare, retiree welfare, retirement, supplemental retirement, retention, employment, consulting, change in control, termination or severance plans, programs, agreements or arrangements that are maintained, contributed to or sponsored or maintained by, or required to be contributed to by, any Group Company or with respect to which any Group Company has any liability.  For the avoidance of doubt, individual employment agreements are not included in this definition.

Books and Records shall mean all corporate, business, financial and other books and records relating to any Group Company and whose keeping is required pursuant to applicable Law (including, but not limited to, those which are relevant from a Tax viewpoint).

Business shall have the meaning set forth in Recital (e) to this Agreement.

Business Day means any calendar day (other than a Saturday or a Sunday) on which banks generally are open for business in Milan (Italy) and New York City (United States).

Buyer shall have the meaning set forth in the preamble of this Agreement.

Buyer Closing Conditions shall have the meaning set forth in Section 4.2 of this Agreement.

Buyout Price Deficit shall have the meaning set forth in Section 7.10(vi) of this Agreement.

Buyout Shortfall shall have the meaning set forth in Section 7.10(v) of this Agreement.

Buyout Surplus shall have the meaning set forth in Section 7.10(v) of this Agreement.

By-laws means the by-laws of the Company currently in force attached to this Agreement as Schedule 8.5(i).

Cash means, as of a given time, all cash and cash equivalents of the Group, including accrued interest thereon and the amount of checks and drafts received but not yet deposited; provided that (i) “Cash” shall exclude (A) all restricted cash, meaning cash subject to restrictions on use under applicable Law or accounting rules and (B) any amounts that would otherwise be included in “Cash” under this definition that are posted as collateral with vendors, landlords or any other third parties; and (ii) “Cash” shall be reduced by the amount of any checks or drafts that have been issued by any Group Company and remain outstanding at the applicable time.  An illustrative calculation of Cash as of the Latest Date, based on the Latest Date Balance Sheet, and rectified for purposes of consistency with this definition, is attached as Schedule B.

Clearance shall have the meaning set forth in Section 11.1 of this Agreement.

Closing means the closing of the purchase and sale of the Quotas and the Shares, the payment of the Provisional Purchase Price Amount, the repayment of the Outstanding Debt under the UC Financing and, in general, the execution and exchange of all documents (including the Transfer Deed and the endorsement of the share certificates representing the Shares) and the performance and consummation of all obligations, respectively required to be executed, exchanged, performed and consummated on the Closing Date pursuant to Article 6 of this Agreement.

Closing Adjustments shall have the meaning set forth in Section 7.3 of this Agreement.

Closing Conditions means, collectively, the Mutual Closing Conditions, the Buyer Closing Conditions and the Sellers’ Closing Conditions.

Closing Date means (a) the date on which the Closing occurs, which shall be the date that is ten Business Days after the date on which all of the Closing Conditions set forth in Sections 4.1(i) and 4.1(iii) have been satisfied or waived in accordance with the terms hereof or (b) such other date as may be mutually agreed upon by the Sellers’ Representative and the Buyer in writing (provided in each case that all the Closing Conditions are satisfied or waived in accordance with the terms hereof as at such date).

Closing Date Balance Sheet means the consolidated balance sheet of the Group as of immediately prior to the Closing, which shall be prepared by the Buyer in accordance with Section 7.1 of this Agreement and the Accounting Principles, consistently with the Latest Date Balance Sheet, and which shall have annexed a statement setting forth the Closing Date Cash, Closing Date Debt, Closing Date Net Working Capital and the Closing Date Transaction Expenses based on such balance sheet (as rectified for purposes of consistency with the respective definitions).

Closing Date Cash means Cash as of the Closing Date (immediately prior to Closing), as set forth in the Closing Date Balance Sheet, calculated consistently with the calculation of the Cash as of the Latest Date set forth in Schedule B.

Closing Date Debt means Debt as of the Closing Date (immediately prior to Closing), as set forth in the Closing Date Balance Sheet.  For the sake of clarity, the Closing Date Debt will include the Outstanding Debt under the UC Financing to be reimbursed by the Buyer at the Closing but will not include any amount which may become due to the Buyer as reimbursement from any Group Company as a result of the payment by the Buyer, on behalf of such Group Company, of the Outstanding Debt under the UC Financing.  The Closing Date Debt shall be calculated consistently with the calculation of the Debt as of the Latest Date set forth in Schedule B.

Closing Date Net Working Capital means Net Working Capital as of the Closing Date (immediately prior to Closing), as set forth in the Closing Date Balance Sheet.  The Closing Date Net Working Capital shall be calculated consistently with the calculation of the Net Working Capital as of the Latest Date set forth in Schedule B.

Closing Date Transaction Expenses means the Transaction Expenses which remain unpaid as of the Closing Date, as set forth in the Closing Date Balance Sheet.

Closing Notice shall have the meaning set forth in Section 2.4 of this Agreement.

Code means the Italian Civil Code.

Company shall have the meaning set forth in Recital (a) of this Agreement.

Companies’ Registrar means the relevant Registro delle Imprese in Italy.

Company Demerger Loss means any Loss that otherwise would constitute a Loss of Gimatic Immobiliare that, as a consequence of the Demerger, is incurred by or imposed on any Group Company pursuant to article 2506–quater of the Code.

Confidentiality Agreement means the confidentiality agreement between AGIC BV and HDX, on the one hand, and the Parent, on the other hand, entered into on June 12, 2018, in respect of the proposed acquisition of the Group.

Contracts means, with respect to any Person, all contracts, agreements, arrangements or understandings, whether written or oral, in each case which are legally binding on such Person or with respect to which such Person’s assets are legally bound.

Data Room Documents shall have the meaning set forth in Recital (g) to this Agreement.

De Minimis Amount shall have the meaning set forth in Section 10.5(ii) of this Agreement.

Debt means, as of a given time, with respect to the Group Companies on aggregate, without duplication,

(i)	the unpaid principal amount of all indebtedness for borrowed money (excluding all intercompany indebtedness solely between or among the Company and any of the other Group Companies, to the extent such indebtedness fully eliminates upon consolidation in accordance with the Accounting Principles);

(ii)	all obligations evidenced by notes, bonds, debentures or other debt securities;

(iii)

all obligations in respect of the deferred purchase price of any assets, property, securities, goods or services, including (A) obligations under any “earn-outs” or similar obligations (whether contingent or otherwise and assuming the maximum amount is earned), (B) performance bonuses, seller notes, or indemnification obligations and (C) other payment arrangements related to or arising out of any prior acquisition, business combination or similar transaction);

(iv)	all obligations under leases required in accordance with the Accounting Principles to be capitalized on any balance sheet of any Group Company;

(v)

all unpaid Taxes of the Group Companies which have been accrued or which should have been properly accrued or which otherwise have become due and payable, computed based on the Accounting Principles (and the applicable Laws and related interpretations issued by the competent Governmental Authorities in respect of the calculation of Taxes for the fiscal year 2018);

(vi)	all letters of credit, bankers’ acceptances or similar instruments to the extent drawn upon and not paid;

(vii)

all obligations under any swap, option, hedging or derivative instruments or arrangements in each case valued on the Closing Date at the termination value or fair value thereof;

(viii)

(A) 50% of all pension liabilities to the extent not fully funded, including accrued liabilities in respect of Trattamento di Fine Rapporto (TFR), and (B) all other accrued liabilities in respect of employee benefits;

(ix)	any unpaid portion of the Provisional Minority Buyouts Price;

(x)

any accrued and unpaid interest on, breakage costs in respect of, fees owed in respect of, and any prepayment premiums, penalties or similar charges (including, for the avoidance of doubt, any such interest, costs, fees, premiums, penalties or charges payable in connection with repayment or redemption or termination in connection with the Closing) in respect of any indebtedness, liabilities or obligations described in any other clause in this definition;

(xi)	the Outstanding Debt under the UC Financing; and

(xii)

(A) any guarantees in respect of indebtedness, liabilities or obligations of any other Person of the type described in any other clause of this definition and (B) any indebtedness, liabilities or obligations of any other Person of the type referred to in any other clause of this definition which any Group Company has pledged any of its assets as security for, or as to which any Group Company has undertaken or become obligated to maintain or cause to be maintained the financial position or financial covenants of such Person, or to purchase any other Person’s indebtedness, liabilities or obligations.

Notwithstanding anything to the contrary in the foregoing clauses (i) through (xii) of this definition, “Debt” (a) shall not include any liability to the extent reflected in the calculation of the Closing Date Net Working Capital, (b) shall not include obligations in respect of the financial lease provided for in the financial lease agreement (no. IC 813185) entered into by and between MTM and UniCredit Leasing S.p.A. (formerly Locat S.p.A.), dated as of February 22, 2015 (as amended and made available to the Buyer), in respect of the real estate property where its plant is located, (c) shall not include any social security contributions and (d) shall be reduced by the amount of any overpayment of Taxes by any Group Company in respect of the period from January 1, 2018 to the Closing Date and any other Tax receivables (including VAT receivables) outstanding as of the Closing Date, in each case to the extent such overpayment or receivables are reflected on the Closing Date Balance Sheet, based on the Accounting Principles and consistent with the calculation of such amounts in the Latest Date Balance Sheet.  An illustrative calculation of Debt as of the Latest Date, based on the Latest Date Balance Sheet, and rectified for purposes of consistency with this definition, is attached as Schedule B.

Decree 231 means the Italian Legislative Decree dated 8 June 2001 No. 231, as subsequently amended and integrated.

Demerger means the demerger of the Company carried out by means of the demerger deed executed on December 23, 2015 (and registered with the Companies’ Registrar of Brescia on December 31, 2015), as subsequently amended by means of deed dated March 1, 2016.

Disclosed Items means (i) the Data Room Documents and (ii) any Schedule attached to this Agreement.

Dispute Notice shall have the meaning set forth in Section 10.7 of this Agreement.

Disputed Items shall have the meaning set forth in Section 7.4 of this Agreement.

Due Diligence shall have the meaning set forth in Recital (g) to this Agreement.

Employees shall have the meaning set forth in Section 8.17(i) of this Agreement.

Environmental and Health and Safety Laws means all Laws concerning environmental, health and safety, or risk prevention matters applicable in any relevant jurisdiction in which any Group Company (or otherwise the Business) operates, including without limitation safety and hygiene at work provisions (including without limitation the provisions of Legislative Decree 81/2008), fire prevention and electrical system safety regulations (including without limitation the provisions of DPR 577/82 and Law 46/90) emissions, discharges or releases of pollutants, contaminants or Hazardous Materials (as defined below) into the environment or otherwise relating to the manufacture, processing, distribution, use, storage, transport or disposal of Hazardous Materials.

Estimated Aggregate Price means (i) the Base Cash Price, minus (ii) the amount (if any) by which the Estimated Net Working Capital is less than the Target Net Working Capital Amount, plus (iii) the amount (if any) by which the Estimated Net Working Capital exceeds the Target Net Working Capital Amount plus (iv) the Estimated Cash, minus (v) the Estimated Debt, minus (vi) the Estimated Transaction Expenses (if any).

Estimated Cash shall have the meaning set forth in Section 7.1 of this Agreement.

Estimated Closing Statement shall have the meaning set forth in Section 7.1 of this Agreement.

Estimated Debt shall have the meaning set forth in Section 7.1 of this Agreement.

Estimated Net Working Capital shall have the meaning set forth in Section 7.1 of this Agreement.

Estimated Transaction Expenses shall have the meaning set forth in Section 7.1 of this Agreement.

Euro, euro, EUR or € means the euro, i.e. the lawful currency adopted by certain member states of the European Union as from 1 January 1999.

Fairly Disclosed means an event, act, fact or circumstance in respect of which the Sellers provide the Buyer (or its advisors and consultants) with reasonably detailed information in writing in the Disclosed Items, which event, act, fact or circumstance is reasonably apparent on the face of such disclosure so as to allow the Buyer (or its advisors and consultants) to:  (i) understand the nature and the scope of such event, act, fact, or circumstance (including, for the avoidance of doubt and to the extent relevant, the nature and the scope of any liabilities arising out of or in connection with such event, act, fact, or circumstance) whether legal, financial, numerical or de facto; (ii) analyze, assess and acknowledge such event or circumstance; and (iii) appreciate its significance (monetary or otherwise).

Final Key Minority Buyouts Price shall have the meaning set forth in Section 7.10(i) of this Agreement.

Final Other Minority Buyouts Price shall have the meaning set forth in Section 7.10(i) of this Agreement.

Final MTM Buyout Price shall have the meaning set forth in Section 7.10(i) of this Agreement.

Finance Documents means the finance documents executed in connection with (and including) the UC Facilities Agreement, as well as any hedging agreement connected thereto, including the documents listed under the definition of “Finance Documents” set forth in the UC Facilities Agreement.

Finance Parties shall have the meaning set forth in the UC Facilities Agreement.

Financial Statements shall have the meaning set forth in Section 8.8(i) of this Agreement.

Fundamental Warranties shall have the meaning set forth in Section 10.4 of this Agreement.

Gimatic Immobiliare means Gimatic Immobiliare S.r.l., a company incorporated (as a consequence of the Demerger) under the laws of Italy with registered office at Via Enzo Ferrari 2/4, Roncadelle (Brescia), Italy, having a corporate capital of Euro 10,000.00 fully subscribed for and paid-in, enrolled with the Register of Companies of Brescia (Italy) under no. 03776270989.

Governmental Authority means any legislature, administrative body, agency, instrumentality, court, tribunal or other authority of any international, national, federal, state, local or other government or political subdivision thereof, including Italy’s Autorità Garante della Concorrenza e del Mercato and any other antitrust authority having jurisdiction over the transactions contemplated hereby and including any Tax authority or financial market regulator or stock exchange, including the U.S. Securities and Exchange Commission.

Gripper Co-Investors shall have the meaning set forth in the preamble of this Agreement.

Gripper Co-Investors Merger Expenses shall have the meaning set forth in Section 10.13 of this Agreement.

Gripper Intercompany Loans shall have the meaning set forth in Section 8.7(i) of this Agreement.

Gripper Transfer shall have the meaning set forth in Recital (d) to this Agreement.

Group shall have the meaning set forth in Recital (e) to this Agreement.

Group Company(ies) shall have the meaning set forth in Recital (e) to this Agreement.

Group Companies Business Warranties means any Warranty contained in Sections 8.6, 8.8 to 8.22, 8.23 (to the extent related to a Group Company) and 8.24.

Hazardous Material shall mean any natural or artificial substance, element or thing (whether in the form of a solid, liquid, gas, vapor or any other form) the use, discharge, disposal or treatment of which is regulated by any Environmental and Health and Safety Laws and all dangerous substances, toxic substances, hazardous and special wastes, oils, asbestos and asbestos products, talcum powder, petroleum and petroleum products, hazardous materials, chemicals and goods and any other substance, element or thing which may be harmful to human health or the environment.

HDX shall have the meaning set forth in the preamble of this Agreement.

Indemnified Party means either (i) the Buyer and its Affiliates or (ii) the Sellers, as the case may be, in each case insofar as they claim indemnification under the applicable provisions of Article 10 of this Agreement.

Indemnifying Party means any of the Parties, insofar as a claim for indemnification is asserted against such Party under the applicable provisions of Article 10 of this Agreement.

Intellectual Property Rights means all rights in or relating to intellectual property under the Laws of any jurisdiction throughout the world, including all rights arising from or associated with any patents, trade secrets, trademarks, service marks, trade names, utility models, rights in designs, copyright (including rights in computer software and databases) and related rights, moral rights, and rights in know-how and confidential information, in each case whether registered or unregistered and including applications for the grant of any of the foregoing and all rights or forms of protection having equivalent or similar effect anywhere in the world.

Interim Period shall have the meaning set forth in Section 3.1 of this Agreement.

Interim Transaction shall have the meaning set forth in Section 3.2 of this Agreement.

Issuing Bank shall have the meaning set forth in Section 2.6(i) of this Agreement.

Key Buyout Shortfall shall have the meaning set forth in Section 7.10(iii) of this Agreement.

Key Buyout Subsidiaries means, collectively, (i) Gimatic Vertrieb GmbH, (ii) Gimatic Czech Republic s.r.o., (iii) Gimatic Spain S.L. and (iv) Gimatic Dış Ticaret Limited Şirketi.

Key Buyout Surplus shall have the meaning set forth in Section 7.10(iii) of this Agreement.

Key Minority Buyout Agreements means the Contracts named as such on Schedule C.

Key Minority Buyouts means the purchase by the Company of all of the equity interests of each of the Key Buyout Subsidiaries that the Company does not already own pursuant to and in accordance with the Key Minority Buyout Agreements.

Key Minority Buyouts Provisional Price means €6,087,970.70 (which is the aggregate price to be paid prior to or at the Closing with respect to all of the Key Minority Buyouts pursuant to the terms of the Key Minority Buyout Agreements (ignoring for such purposes the 10% holdback to be retained by the Company at the Closing in accordance with each such Key Minority Buyout Agreement), and which prices will be finalized and appropriately adjusted in 2019 in accordance with such Key Minority Buyout Agreements and Section 7.10).

Knowledge means:

(i)

in case of a natural Person, the knowledge of a particular fact or other matter that (a) such natural Person has if that individual is actually aware of that fact or matter; or otherwise (b) a prudent individual could be reasonably expected to obtain after conducting a reasonably comprehensive investigation regarding the accuracy of any representation or warranty contained in this Agreement (including, without limitation, by inquiring with the directors, officers or other representatives of any Group Company in respect of the Warranties); or

(ii)

in case of a Person other than a natural Person, the knowledge of a particular fact or other matter that any natural Person who is serving as a representative (including directors, managers, officers, employees, agents and consultants) of that Person (or in any similar capacity) has, or at any time had, or could be reasonably expected to have, or have had at any time, of such fact or other matter (as set forth in (i) above),

it being understood that the Knowledge of any Seller of any fact or matter shall be deemed to be the Knowledge of all the Sellers of such fact or matter.

Latest Date means December 31, 2017.

Latest Date Balance Sheet means the approved and audited consolidated balance sheet of the Company as at the Latest Date, which has been prepared by the Company in accordance with the Accounting Principles.

Law means any law, statute, decree, order, regulation, directive, code, rule of any Governmental Authority (including any judicial or administrative interpretation thereof).

LC Expiration Date shall have the meaning set forth in Section 2.6(i) of this Agreement.

Lenders means UniCredit S.p.A., Banca IMI S.p.A. and Crédit Agricole Cariparma S.p.A., as lenders of the Company and MTM under the UC Financing as of the date of this Agreement.

Letter of Credit shall have the meaning set forth in Section 2.6(i) of this Agreement.

Lien means any security interest, lien, charge, usufruct, pledge, mortgage, encumbrance, option, claim, defect of title, third party right or any other restriction of any kind, including without limitation any restriction on the voting, transfer or income distribution of securities or other attributes of ownership (such as shareholders’ agreements, rights of first refusal or first offer, pre-emptive rights, rights of approval to intended securities transfers, call options, put options, tag-along rights, drag-along rights, rights under warrants, convertible securities or stock option plans, restrictions to the maximum amount of securities which a shareholder may hold in the issuer, etc.) or rights of set-off and other encumbrances of any kind.

Long-Stop Date means December 31, 2018.

Loss(es) means any actual losses, liabilities, damages, loss of profits, Taxes, costs or expenses, including assessments, fines, penalties, judgments, settlements, costs, and reasonable attorneys’ fees, in each case which are a direct result of any breach by the applicable Indemnifying Party of any of its respective representations, warranties, covenants or other agreements set forth in this Agreement, but in each case excluding any (i) consequential, incidental, contingent, potential or indirect losses (provided that, for the avoidance of doubt, loss of profits of any Group Company as referred to above is not intended to be and shall not be limited or excluded under this clause (i)), (ii) punitive, exemplary or similar losses or damages, except to the extent awarded to any third party (excluding, for the avoidance of doubt, any of Buyer’s Affiliates); (iii) losses or damages relating to the losses, by the Buyer, Parent and/or their respective shareholders, of future investment or business opportunities; and (iv) losses or damages that are not reasonably foreseeable, except to the extent awarded to any third party (excluding, for the avoidance of doubt, any of Buyer’s Affiliates).

Material Adverse Change means any change, effect, event, occurrence or fact that, individually or in the aggregate, is or would reasonably be expected to be materially adverse to the business, financial condition or results of operations of the Group, taken as a whole, provided, that to be considered “materially adverse” for purposes of this definition, such facts, occurrences, events, changes or effects shall have caused or be reasonably expected to cause, individually or in the aggregate, an adverse effect on the business, financial condition or results of operations of the Group, taken as a whole, in excess of €40,000,000.

Material Adverse Effect means any change, effect, event, occurrence or fact that, individually or in the aggregate, is or would reasonably be expected to be materially adverse to the business, financial condition or results of operations of the Group, taken as a whole, (a) provided that to be considered “materially adverse” for purposes of this definition, such facts, occurrences, events, changes or effects shall have caused or be reasonably expected to cause, individually or in the aggregate, an adverse effect on the business, financial condition or results of operations of the Group, taken as a whole, in excess of €40,000,000 and, in any case, (b) other than changes, effects, events, occurrences or facts to the extent resulting from:  (i) any change in interest rates or general economic conditions; (ii) events, changes or effects occurring generally in the industries in which the Group does business; (iii) changes in Laws, including changes in legally binding interpretations thereof; (iv) an outbreak or escalation of hostilities involving any country where the Group does business, the declaration by any country where the Group does business of a national emergency or war, or the occurrence of any acts of terrorism and any actions or reactions thereto; (v) changes required by the applicable accounting principles in use by the applicable Group Company as of the date hereof; (vi) earthquakes, hurricanes, floods, or other natural disasters; (vii) any action taken by the Group at the express written request of the Buyer, or any action or omission expressly required pursuant to the terms of this Agreement; and (viii) any effect of the announcement of this Agreement or the transactions contemplated hereby on any Group Company’s business relationships with customers, suppliers, vendors, bank lenders, or employees (other than with respect to any breach or inaccuracy with respect to any of the Warranties set forth in Sections 8.4 or 8.19(iii)) (and provided, however that any changes, effects, events, occurrences or facts referred to in clauses (i), (iii), (iv), (v) or (vi) of this definition may be taken into account in determining whether a Material Adverse Effect has occurred or would reasonably be expected to occur to the extent such change, effect, event, occurrence or fact has a disproportionate impact on any Group Company relative to other companies in the industry in which the Group operates generally).

Material Contracts means all Contracts entered into by any Group Company or with respect to which any Group Companies’ assets are bound and which provide for any of the following:  (i) obligations of the Group Companies, whether in the aggregate or on an annual basis, in excess of Euro 100,000, or which are reasonably expected to result in payments by the Group Companies (even if not expressly required by the terms of such Contract) in excess of such amount; (ii) a term in excess of 12 months; (iii) exclusivity arrangements or any “most favored nation” pricing clause; (iv) any joint venture, partnership or other similar agreement, including any Contract involving co-investment between any Group Company and any other Person; (v) any Contract between any Group Company, on the one hand, and any Seller or any Affiliate of any Seller (other than a Group Company) or any immediate family member of any Seller, on the other hand; (vi) any Contract relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise) (A) within the last three years or (B) under which any Group Company has any continuing obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation or any material indemnification obligations; (vii) covenants that would restrict or limit the ability of any Group Company (or the Buyer or any of its Affiliates after the Closing) to engage in, or compete with any Person or in any geographic area with respect to the Group’s business as presently conducted with any Person or in any geographic area; (viii) a lease or sublease of any Real Property, or any lease of any personal property for which the annual rental exceeds €100,000; (ix) a factoring agreement; (x) a license or grant of rights to any Group Company with respect to Intellectual Property Rights of a third Person which is material to the operation of the business of any Group Company, including any Contract pursuant to which any Group Company is required to pay a royalty or other payment with respect to any product, but excluding licenses for commercially available software licensed to any Group Company and for which the annual payment is less than €100,000; (xi) a license or other grant of rights pursuant to which any Group Company has granted a third Person any license or other right with respect to any material Intellectual Property Rights, other than non-exclusive licenses granted in the ordinary course in connection with the sale or distribution of products or services; (xii) Debt in excess of €100,000; (xiii) any transaction, change-of-control, retention or similar payment or benefit made or payable to any current or former employee, agent or other service provider of any Group Company in connection with the transactions contemplated by this Agreement; or (xiv) the Minority Buyout Agreements.

Minority Buyout Agreements means, collectively, the Key Minority Buyout Agreements, the Other Minority Buyout Agreements and the MTM Agreement.

MTM means M.T.M. S.r.l., a subsidiary of the Company.

MTM Buyout Provisional Price means €5,670,000, which is the estimated aggregate price to be paid with respect to the repurchase by the Company of the 25% of the share capital of MTM that it does not already own pursuant to the terms of the shareholders’ agreement among the Company, Mr. Ivano Montini and Mr. Simone Scanzioli (the MTM Agreement), based on estimated 2018 financial results of MTM, and assuming that such repurchase right was exercisable as of the date hereof (acknowledging that such right is not exercisable under such agreement until January 1, 2019 and in case of exercise, the relevant price would be paid only after the approval of the financial statements of MTM as of December 31, 2018, pursuant to the terms of the MTM Agreement).

MTM Buyout Shortfall shall have the meaning set forth in Section 7.10(iv) of this Agreement.

MTM Buyout Surplus shall have the meaning set forth in Section 7.10(iv) of this Agreement.

Mutual Closing Conditions shall have the meaning set forth in Section 4.1 of this Agreement.

Net Working Capital means, as of a given time, in respect of the Group, on a consolidated basis, (i) inventory, plus (ii) trade receivables, minus (iii) trade payables, minus (iv) social security contributions, in each case calculated in accordance with the Accounting Principles.  An illustrative calculation of Net Working Capital as of the Latest Date, based on the Latest Date Balance Sheet, is attached as Schedule B.

Non-Employees shall have the meaning set forth in Section 8.17(i) of this Agreement.

Notary Public shall have the meaning set forth in Section 6.1 of this Agreement.

Notice of Claim shall have the meaning set forth in Section 10.6 of this Agreement.

Objection Notice shall have the meaning set forth in Section 7.4 of this Agreement.

OFAC Laws shall have the meaning set forth in Section 8.20(vi) of this Agreement.

Other Buyout Shortfall shall have the meaning set forth in Section 7.10(ii) of this Agreement.

Other Buyout Subsidiaries means, collectively, (i) Gimatic Japan Limited, (ii) Gimatic Korea Limited, (iii) Gimatic Nordic A.B. and (iv) Gimatic Polska sp. z o.o.

Other Buyout Surplus shall have the meaning set forth in Section 7.10(ii) of this Agreement.

Other Minority Buyout Agreements means the Contracts named as such on Schedule C.

Other Minority Buyouts means the purchase by the Company of all of the equity interests of each of the Other Buyout Subsidiaries that the Company does not already own pursuant to and in accordance with the Other Minority Buyout Agreements.

Other Minority Buyouts Provisional Price means €763,598.00 (which is the estimated aggregate price to be paid with respect to all of the Other Minority Buyouts pursuant to the terms of the Other Minority Buyout Agreements, in each case based on estimated 2018 financial results of the applicable Other Buyer Subsidiary as of the date hereof (as set forth in Exhibit A to the applicable Proposed Buyout Amendment), and assuming that such repurchase right was exercised in early 2019 after 2018 financial results are finalized and approved).

Outstanding Debt under the UC Financing means the amount equal to the principal and accrued interest, fees, penalties, breakage costs, prepayment or make-whole payment obligations, if any, and/or any other amount owed by any Group Company to the Lenders and the Finance Parties pursuant to the UC Facilities Agreement and the relevant Finance Documents (including any hedging agreements), as at the Closing Date, which amount the Sellers will provide notice of to the Buyer pursuant to Section 2.4 of this Agreement.

Parent shall have the meaning set forth in the preamble of this Agreement.

Parties means, collectively, the Buyer, the Parent, the Sellers, the AGIC Fund, the Xenon Fund and Gripper Co-Investors, and Party shall mean any one of them.

Permits means the permits, licenses, certificates, orders, consents, authorizations, franchises and other approvals or certifications from, or required by, any Governmental Authority in any jurisdiction that are currently required to operate the Business or to carry out the activities of any Group Company (including the conduct of the Business) as presently conducted.

Person means any individual, company, partnership, firm, association, unincorporated organization or other entity.

Pledges means, collectively:

(i)	the pledge over the Quotas and the Remaining Quota created by a notarial deed dated July 8, 2016 and extended and confirmed by a notarial deed dated December 22, 2017, securing the UC Financing; and

(ii)	the pledge over the quotas representing the entire corporate capital of MTM created by a notarial deed dated December 22, 2017, securing the UC Financing.

Properties shall have the meaning set forth in Section 8.15(i) of this Agreement.

Proposed Buyout Amendments shall have the meaning set forth in Section 8.3(iv) of this Agreement.

Provisional Minority Buyouts Price means the Key Minority Buyouts Provisional Price plus the Other Minority Buyouts Provisional Price plus the MTM Buyout Provisional Price.

Provisional Purchase Price Amount means (i) the Estimated Aggregate Price minus (ii) the Purchase Price Holdback Amount.

Purchase Price Holdback Amount means an amount in cash equal to €2,500,000.00, which the Buyer shall retain at Closing from the amount otherwise payable to the Sellers in respect of their estimate of the Aggregate Price, represented by the Estimated Aggregate Price, in order to satisfy, up to such amount, any Aggregate Price Downward Adjustment and any Buyout Shortfall, in each case as finally determined in accordance with Article 7.

Quotas shall have the meaning set forth in Recital (c) to this Agreement.

Quotas Price means the total amount of Euro equal to 92.27% of the Provisional Purchase Price Amount, to be paid by the Buyer to the Quotas Sellers pursuant to this Agreement in consideration for the purchase and sale of the Quotas (subject to any adjustments pursuant to Article 7).

Quotas Sellers shall have the meaning set forth in the preamble of this Agreement.

Real Properties shall have the meaning set forth in Section 8.15(ii) of this Agreement.

Reference Date means June 30, 2018.

Reference Date Balance Sheet means the unaudited consolidated balance sheet of the Company as at the Reference Date, which has been prepared in good faith by the Company in accordance with the Accounting Principles.

Registered Rights means, in relation to any jurisdiction, any Intellectual Property Rights which are the subject of registration (or application for registration) with any competent authority in that jurisdiction, including patents, utility models, registered copyrights, registered trademarks, domain name registrations, and applications for any of the foregoing.

Related Party Transactions shall have the meaning set forth in Section 8.24(i) of this Agreement.

Remaining Quota shall have the meaning set forth in Recital (c) to this Agreement.

Replacement Letter of Credit shall have the meaning set forth in Section 2.6(v) of this Agreement.

Review Period shall have the meaning set forth in Section 7.4 of this Agreement.

Rules shall have the meaning set forth in Section 16.1 of this Agreement.

Seller(s) shall have the meaning set forth in the preamble of this Agreement.

Sellers’ Closing Conditions shall have the meaning set forth in Section 4.3 of this Agreement.

Sellers’ Representative shall have the meaning set forth in Section 14.8(a) of this Agreement.

Shares shall have the meaning set forth in Recital (d) to this Agreement.

Shares Price means the total amount of Euro equal to 7.73% of the Provisional Purchase Price Amount, to be paid by the Buyer to the Sellers pursuant to this Agreement in consideration for the purchase and sale of the Shares (subject to any adjustments pursuant to Article 7).

Target Net Working Capital means €14,100,000.

Tax Basket shall have the meaning set forth in Section 10.5(iii)(b) of this Agreement.

Tax Return means any report, return, declaration, claim for refund, information return, or statement related to Taxes that is supplied or required to be supplied to a Governmental Authority, including any schedule or attachment thereto, and including any amendment thereof.

Taxes means any forms of taxation and statutory, governmental, state, provincial, local governmental or municipal impositions, duties, contributions, charges, fees, assessments and levies, including, without limitation, corporate taxes (including, but not limited to, the Imposta Regionale sulle Attività Produttive – IRAP and the Imposta sul Reddito delle Società – IRES), capital gain taxes, value added taxes, income taxes, sales tax, use tax, excise tax, transfer tax, stamp duties and registration and similar taxes, net asset taxes, capital taxes, real estate and real estate transfer taxes, mortgage and cadastral taxes, escheat, abandoned or unclaimed property liabilities, environmental taxes, waste taxes, taxes to be withheld, any deductibles relating to wages, salaries and benefits, charges, collection fees, social security charges and contributions, employment and unemployment taxes, and/or liabilities which are calculated with reference to taxes, transfer pricing or inventory valuations, together with any interest, fine or penalty, addition to tax, or additional amount, in each case, imposed by any taxing authority of any Governmental Authority.  Tax shall mean any of them.

Third Party Claim shall have the meaning set forth in Section 10.6 of this Agreement.

Tobin Tax means the financial transaction Tax (so-called Tobin Tax) pursuant to Article 1, paragraphs 491-500, of Law no. 228 of December 24, 2012 and the Decree of the Ministry of Economy and Finance of March 21, 2013 as subsequently supplemented and amended.

Transfer Deed shall have the meaning set forth in Section 6.2(i) of this Agreement.

Transferred Shares shall have the meaning set forth in Recital (d) to this Agreement.

Transaction Expenses means, collectively, (i) all costs and expenses incurred or accrued, at any time prior to or at the Closing, in connection with the vendor due diligence carried out in connection with the transactions contemplated by this Agreement or the preparation, negotiation, execution and consummation of this Agreement and the transactions contemplated hereby that have been incurred by or on behalf of any Group Company or for which any Group Company (or the Buyer or any of its Affiliates, based on Contracts or other arrangements entered into prior to the Closing by any Group Company, any Seller or any of their respective Affiliates) may otherwise be or become liable following the Closing, including all brokerage commissions, fees, expenses of and disbursements to any financial advisor or finder and all fees and disbursements of attorneys, accountants, and other advisors or service providers; (ii) the Gripper Co-Investors Merger Expenses; and (iii) any Tobin Tax to the extent not fully paid by the Sellers pursuant to Section 6.2(ii)(g).  Notwithstanding the foregoing, “Transaction Expenses” shall not include any liability to the extent reflected in the calculation of the Closing Date Debt or the Closing Date Net Working Capital.

UC Facilities Agreement means the EUR 65,000,000 facilities agreement dated July 8, 2016, entered into by and among AGIC BV (as guarantor), Gripper Italia S.r.l. (which has been subsequently merged into the Company) (as borrower), UniCredit S.p.A. (as mandated lead arrangers and bookrunners and lender), Banca IMI S.p.A. (as mandated lead arrangers and bookrunners and lender), Crédit Agricole Cariparma S.p.A. (as lender) and UniCredit Bank AG – Milan Branch (as agent and security agent), as amended pursuant to the waiver and amendment letters dated October 13, 2016, December 21, 2016 and December 6, 2017 and as amended and reinstated pursuant to the amendment agreement dated December 22, 2017, as from time to time further amended.

UC Financing means the financing in place between the Company and MTM (as successor to Bemo S.r.l. as a result of the merger of the latter into MTM) and the Lenders, details of which are contained in Schedule E, pursuant to the UC Facilities Agreement and the relevant Finance Documents.

UC Release Letter means a letter duly executed by UniCredit Bank AG – Milan Branch, in its capacity as agent and security agent under the UC Facilities Agreement, in a form reasonably satisfactory to the Sellers and the Buyer and acceptable to UniCredit Bank AG – Milan Branch, confirming:

(i)	the exact amount of the Outstanding Debt under the UC Financing and the Finance Documents as of the Closing Date;

(ii)	that, upon the repayment of the Outstanding Debt under the UC Financing at Closing:

(iii)

the presence of the Finance Parties (or of UniCredit Bank AG – Milan Branch, also for and on behalf of the Finance Parties) at the Closing for the purposes of, inter alia, entering into the deeds of termination, release and/or cancellation, as the case may be, of the Finance Documents, the guarantee and the other security documents securing the UC Financing.

US Tax Code shall have the meaning set forth in Section 8.14(v) of this Agreement.

Warranties shall have the meaning set forth in Article 8 of this Agreement and Warranty shall mean any of them.

Xenon Fund shall have the meaning set forth in the preamble of this Agreement.

1.5 For any item, document or information to be considered to have been made available or provided to the Buyer prior to the date hereof, such item or information (i) must have been uploaded at least 3 Business Days prior to the date hereof in complete and unredacted form in the virtual data room hosted by Intralinks under the name “Project Gem” set up by the Sellers and the Company, and included on the CD-Rom attached hereto as Schedule DD, (ii) contained in full in the Schedules, provided that notwithstanding anything in this Agreement to the contrary (including anything in the definitions of the terms “Fairly Disclosed” and “Disclosed Items”), the documents listed in Schedule 1.5 shall be deemed made available or provided to the Buyer by the Sellers for the purposes of compliance by the Sellers with the Warranties requiring such documents to have been made available or provided to the Buyer, but shall not be deemed Disclosed Items or Fairly Disclosed, nor shall their inclusion on any other Schedule to this Agreement have any effect, for the purpose of any qualification of the Warranties.

1.6 Each of the Sellers, the AGIC Fund, the Xenon Fund,  and Gripper Co-Investors, on the one hand, and each of the Buyer and Parent, on the other hand, shall be considered as a single Party to this Agreement.

1.7 Below is a list of the Schedules, Exhibits and Annexes attached to this Agreement, which form an integral and substantial part hereof:

Schedule A – Aggregate Price Allocation

Schedule B – Illustrative Calculations of Cash, Debt and Net Working Capital

Schedule C – Minority Buyout Agreements

Schedule DD – Data Room CD-Rom

Schedule E – Details of the UC Financing

Schedule S – List of Individual Sellers

Schedule 1.5 – Additional Provided Documents

Schedule 2.3 – Sellers’ Bank Details

Schedule 2.4 – Closing Notice

Schedule 2.6 - Letter of Credit

Schedule 3.1 - Approved Interim Period Transactions

Schedule 3.5 – Payment Instructions for the Outstanding Debt under the UC Financing

Schedule 4.2(iv) – List of Certain Employees

Schedule 6.2(i) – Transfer Deed

Schedule 6.2(ii)(e) – New Directors and Statutory Auditors of the Company

Schedule 6.2(ii)(f) – New Directors and Statutory Auditors of Gripper Co-Investors

Schedule 6.2(iii)(e) – Buyer’s Release Certificate

Schedule 8.3(i)(a) – Proportions of the Quotas and the Shares as at the date of this Agreement

Schedule 8.3(i)(b) – Proportions of the Quotas and the Shares as at the Closing

Schedule 8.3(iii)(a) – List of the Group Companies

Schedule 8.3(iii)(b) – Owner of Interests in the Group Companies

Schedule 8.3(iii)(c) – Interests owned by the Group Companies

Schedule 8.3(iv) – Proposed Buyout Amendments

Schedule 8.5(i) – By-laws of the Company and By-laws of Gripper Co-Investors

Schedule 8.9(i) – Permitted Actions since the Reference Date

Schedule 8.13(i) – Indebtedness

Schedule 8.14(vi) – Details of the Group Companies

Schedule 8.15(ii) – Real Properties

Schedule 8.16(ii) – List of Registered Rights

Schedule 8.17(i)(a) – List of Employees

Schedule 8.17(i)(b) – List of Non-Employees

Schedule 8.17(i)(c) – List of Agents

Schedule 8.17(iv) – Benefit Plans

Schedule 8.17(vii) – Collective Bargaining Agreements

Schedule 8.18(i) – Litigation

Schedule 8.19(i) – Material Contracts

Schedule 8.19(iii) – Additional Contracts

Schedule 8.19(iv) – Change of Control Clauses

Schedule 8.21 – Insurance Policies

Schedule 8.24(i) – Related Party Transactions

Schedule 8.24(ii) – Related Party Transactions that Survive the Closing

Schedule 10.13 – Certain Persons

Schedule 12.3(i)(a) – List of Restricted Persons

Schedule 12.3(i)(b) – List of exceptions to “Competitive Activities” for existing passive investments

Schedule 12.3(ii) – List of Persons that AGIC and HDX may not acquire for 18 months

2.3The payment of the Provisional Purchase Price Amount at the Closing shall be made in immediately available funds by wire transfers, in the amounts and to the bank accounts set forth on Schedule 2.3.

2.4   Not less than five Business Days prior to Closing, the Sellers will (and, as the case may be, shall cause the Company to) deliver to the Buyer a notice, substantially in the form of Schedule 2.4 (the Closing Notice), which will set forth the aggregate amount of the Outstanding Debt under the UC Financing as at the Closing Date, the allocation of such amount among the Finance Parties, and relevant payment instructions, it being understood that the amount of the Outstanding Debt under the UC Financing indicated in the Closing Notice shall be the exact amount of the Outstanding Debt under the UC Financing indicated in the UC Release Letter.  Prior to the Closing, and subject to receipt of the UC Release Letter, the Sellers shall (i) negotiate with the Financing Parties any documentation necessary or advisable to fulfill their obligations under Section 6.2(ii)(c) as of the Closing in accordance with its terms, (ii) provide the Buyer with a reasonable opportunity to review and participate in the negotiation of such termination and release documentation in advance of the Closing, and (iii) incorporate Buyer’s reasonable comments on such documentation.

2.5   By signing this Agreement:

2.7   Notwithstanding any provision of this Agreement to the contrary, the Buyer is permitted to deduct and withhold from any amounts payable or otherwise deliverable pursuant to this Agreement such amounts as are required to be deducted or withheld therefrom under any applicable provision of Tax Law.  To the extent such amounts are so deducted or withheld and paid to the appropriate Governmental Authority, such amounts will be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.

3.1   The Sellers hereby covenant and agree to procure, pursuant to Article 1381 of the Code, that the Business and each Group Company, from the date of execution of this Agreement to the Closing (the Interim Period), will be managed in a diligent and prudent manner and only in the ordinary course of business consistent with past practice, except as otherwise expressly provided for in this Agreement or as previously consented to in writing by the Buyer.  Without prejudice to the generality of the foregoing, the Sellers covenant and agree that, except as otherwise expressly set forth in Schedule 3.1, they shall cause each Group Company to, in each case in the Interim Period:

3.2   The Sellers shall promptly inform the Buyer in writing of any of the transactions or actions falling under the restrictions set out in Section 3.1 that any Group Company may intend to carry out during the Interim Period (each an Interim Transaction).  Each Interim Transaction is subject to the Buyer’s prior written consent, provided that such consent will not be unreasonably withheld or delayed.  When seeking such consent, the Sellers shall, or shall cause the relevant Group Company to, provide the Buyer with all information reasonably requested by the Buyer to take a timely and informed decision to approve or not to approve the intention of such Group Company to take any of such Interim Transaction.  Provisions under Section 3.1 will not prevent any Interim Transaction which is required to comply with any order from any Governmental Authority, including any judicial enforceable decision on a temporary basis (provvedimento provvisoriamente esecutivo).

3.3   From the date of this Agreement until the Closing Date, the Sellers shall and shall cause the Group Companies to afford to representatives of the Buyer, upon reasonable advance notice, reasonable access to the books and records and personnel of the Group Companies during normal business hours, in accordance with reasonable procedures established by the Sellers.

3.4   Subject to the terms and conditions of this Agreement, the Buyer and the Sellers will cooperate and use their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary or desirable to fulfill the Closing Conditions and otherwise to consummate the transactions contemplated by this Agreement.  The Sellers and the Buyer will, and the Sellers (prior to the Closing) and the Buyer (after the Closing) will cause any Group Company to, execute and deliver such other documents, certificates, agreements and other writings and to take such other actions as may be necessary or desirable in order to consummate or implement expeditiously the transactions contemplated by this Agreement.  Without limiting the generality of the foregoing, the Sellers and the Buyer will cooperate with one another (a) in determining whether any actions, consents, approvals or waivers are required to be obtained from parties to any Contracts in connection with the transactions contemplated by this Agreement and (b) in taking such reasonable actions to obtain any such actions, consents, approvals or waivers on a timely basis.

3.5   The Sellers shall procure that, prior to Closing, the Company and MTM deliver to the Buyer written instructions, substantially in the form attached in Schedule 3.5, to pay at the Closing the Outstanding Debt under the UC Financing to Lenders in the amounts identified in the Closing Notice.

4.1   The obligations of the Sellers and the Buyer to consummate the Closing are subject to the satisfaction or (if permitted by applicable Law) waiver by the Buyer and the Sellers’ Representative of the following conditions precedent (the Mutual Closing Conditions):

6.1   The Closing shall take place at 8:30 a.m. local time on the Closing Date before the notary public Ms. Maria Laura Cavallotti of Milan (the Notary Public), at the offices of Gianni, Origoni, Grippo, Cappelli & Partners in Milano (Italy), Piazza Belgioioso no. 2, or at such other place, date and/or time as the Buyer and the Sellers’ Representative may hereafter determine by mutual written agreement.

6.2   In addition to any other action to be taken and to any other instrument to be executed and/or delivered pursuant to this Agreement, at the Closing:

6.3   All actions and transactions constituting the Closing as provided for in this Article 6 shall be regarded as one and a single transaction so that, at the option of the Party having an interest in the carrying out of any specific action or transaction, no action or transaction shall be deemed to have taken place if and until all other actions and transactions constituting the Closing shall have taken place as provided in this Agreement.

7.1   At least seven Business Days prior to the anticipated Closing Date, the Sellers shall deliver to the Buyer a statement setting forth the Sellers’ good-faith estimates of, and reasonable supporting detail in respect of the underlying assumptions and calculations for, each of the following:  (a) the Closing Date Cash (such amount, as may be updated pursuant to Section 7.2, the Estimated Cash), the Closing Date Debt (such amount, as may be updated pursuant to Section 7.2, the Estimated Debt), the Closing Date Net Working Capital (such amount, as may be updated pursuant to Section 7.2, the Estimated Net Working Capital), and the Closing Date Transaction Expenses (such amount, as may be updated pursuant to Section 7.2, the Estimated Transaction Expenses), and (b) the Estimated Aggregate Price (all of the foregoing, as may be updated pursuant to Section 7.2, collectively, the Estimated Closing Statement).  The Estimated Closing Statement and the determinations contained therein shall be prepared by the Sellers in accordance with this Agreement; and the Estimated Aggregate Price set out therein (as may be updated pursuant to Section 7.2) shall be used to calculate the Provisional Purchase Price Amount to be paid by the Buyer at Closing.

7.2   Following delivery of such Estimated Closing Statement, the Buyer and the Sellers shall negotiate in good faith to resolve any items disputed by the Buyer in such Estimated Closing Statement prior to the Closing, and the Estimated Closing Statement shall be updated accordingly to reflect any such resolution prior to the Closing, except that, to the extent that the Sellers and the Buyer cannot agree by the Closing Date, then with respect to each item that remains in dispute, the amount of such item set forth in the Estimated Closing Statement sent by the Sellers’ Representative pursuant to Section 7.1 will be used for the purpose of calculating the Provisional Purchase Price Amount to be paid by the Buyer at the Closing, subject to the following Sections of this Article 7.

7.3   As soon as reasonably practicable after the Closing Date, but in no event later than 120 days after the Closing Date, the Buyer shall prepare, or cause the Company to prepare, the Closing Date Balance Sheet and deliver it to the Sellers, including a statement setting forth the Buyer’s calculations of the Closing Date Cash, the Closing Date Debt, the Closing Date Net Working Capital, the Closing Date Transaction Expenses and the Aggregate Price (collectively, the Closing Adjustments).

7.4   Should the Sellers object, in whole or in part, to the Closing Date Balance Sheet or the calculation made by the Buyer of the Closing Adjustments, the Sellers shall do so by sending to the Buyer, no later than 15 days after the Sellers’ receipt of the Closing Date Balance Sheet (the Review Period), a written objection notice (the Objection Notice) setting out in reasonable detail the reasons for such objections, the disputed items (the Disputed Items) and the proposed adjustments, providing appropriate supporting evidence for each such proposed adjustment.  The Closing Date Balance Sheet and the calculation of the Closing Adjustments prepared by the Buyer shall be deemed to have been accepted by the Sellers and therefore to have become final and binding in all respects other than any Disputed Items set forth in an Objection Notice that is timely and properly delivered in accordance with the preceding sentence.  Until expiry of the Review Period, the Buyer shall cause the Group’s management to allow the Sellers and their representatives reasonable access to any Group Company’s data which may be relevant to the Sellers’ review of the Closing Date Balance Sheet, with such access including reasonable cooperation and, without limitation:  (i) access to relevant books, records, other documents and employees of any Group Company during normal business hours and without disruption of such Group Company’s activities and (ii) copies of any document reasonably deemed necessary by Sellers’ representatives in connection with the review of the Closing Date Balance Sheet.

7.5   If no Objection Notice is sent by the Sellers within the Review Period, then the Closing Date Balance Sheet as prepared by the Buyer pursuant to Section 7.1 (including the Closing Adjustments as set forth in the statement annexed thereto) shall be final and binding on the Parties for all purposes of this Agreement.

7.6   Should the Sellers timely send an Objection Notice, the Sellers shall promptly meet the Buyer to review and discuss in good faith the Closing Date Balance Sheet, with a view to reaching an agreement on the Disputed Items.

If the Sellers and the Buyer are unable to agree on the Disputed Items within 5 Business Days of the date of receipt of the Objection Notice, then any of them, within the following 5 Business Days, may submit the Disputed Items that are still outstanding to the final and binding determination of the Auditor who shall act as arbitratore pursuant to Article 1349 of the Code and who shall be instructed to render its determination in writing to the Parties within 20 days of the Auditor’s appointment.  The Buyer, on the one hand, and the Sellers, on the other hand, shall promptly provide the Auditor with their calculations of each Disputed Item that is still outstanding, setting out in reasonable detail the rationale and supporting detail for the proposed calculations.  The determination of the Auditor shall be limited to the Disputed Items that are still outstanding after the meeting of the Buyer and the Sellers contemplated by this Section 7.6 and shall include the determination of each Closing Adjustment that contains a Disputed Item, in each case, in accordance with this Agreement.  The amount of each Disputed Item as finally determined by the Auditor pursuant hereto shall be (i) no more than the higher of the two amounts submitted to the Auditor by the Buyer and the Sellers with respect to such Disputed Item and (ii) no less than the lower of the two amounts submitted to the Auditor by the Buyer and the Sellers with respect to such Disputed Item.

The Buyer shall grant the Auditor access to all relevant books, records or other documents of the Group Companies as reasonably required or necessary, as well as to the Group’s personnel and consultants as reasonably required or necessary in connection with the Auditor’s review and shall make themselves available to discuss the Disputed Items.

7.7   The Parties agree that the determinations of the Auditor in respect of the Disputed Items, the Closing Date Balance Sheet, and the Closing Adjustments shall be final and binding upon them for the purposes of this Agreement in accordance with Articles 1349 and 1473 of the Code and shall not be subject to appeal except in the case of manifest error (errore manifesto).

7.8   All fees and disbursements of the Auditor due in connection with the preparation and delivery of the documentation contemplated in Section 7.6 shall be allocated by the Auditor between the Buyer, on the one hand, and the Sellers, on the other hand, based upon the percentage that the portion of the contested amount not awarded to each Party bears to the amount actually contested by such Party.  For example, if the Sellers claim in their Objection Notice that the Aggregate Price should be €1,000 greater than the amount determined by the Buyer in the Closing Date Balance Sheet, and the Buyer contests only €500 of the amount claimed by the Sellers, and if the Auditor ultimately resolves the dispute by awarding the Sellers €300 of the €500 contested, then the costs and expenses of arbitration shall be allocated 60% (i.e., 300 ÷ 500) to the Buyer and 40% (i.e., 200 ÷ 500) to the Sellers.

7.9(a)  If the Aggregate Price as finally determined pursuant to this Article 7 is less than the Estimated Aggregate Price (as may have been updated pursuant to Section 7.2), then the amount equal to such deficit shall be deemed the Aggregate Price Downward Adjustment and, in such a case, (i) the Buyer shall be entitled to retain the full amount of such Aggregate Price Downward Adjustment from the Purchase Price Holdback Amount, (ii) to the extent the Purchase Price Holdback Amount is less than the Aggregate Price Downward Adjustment (such amount, the Aggregate Price Deficit), at the Buyer’s option in its sole discretion, the Buyer or its designee shall be entitled to immediate payment by the Issuing Bank of such amount under the Letter of Credit and (iii) to the extent that the remaining amount under the Letter of Credit is less than the Aggregate Price Deficit or if the Buyer elects not to demand full payment of the Aggregate Price Deficit under the Letter of Credit, the Sellers (each according to the Aggregate Price Allocation and therefore severally and not jointly) shall pay the amount of such Aggregate Price Deficit (to the extent not delivered to the Buyer by the Issuing Bank pursuant to the Letter of Credit under clause (ii) of this Section 7.9(a)) to the Buyer, by wire transfer in immediately available funds on or before the 5^th Business Day following the date of determination of the Aggregate Price Downward Adjustment pursuant to this Article 7, to the bank account to be designated by the Buyer at least 3 Business Days prior to the date on which the payment is due.

7.9(b)  If the Aggregate Price as finally determined pursuant to this Article 7 exceeds the Estimated Aggregate Price (as may have been updated pursuant to Section 7.2), then the amount equal to such excess shall be deemed the Aggregate Price Upward Adjustment and, in such a case, the Buyer shall pay the amount of such Aggregate Price Upward Adjustment to the Sellers, based on the Aggregate Price Allocation, on or before the 5^th Business Day following the date of determination of the Aggregate Price Upward Adjustment pursuant to this Article 7, in immediately available funds by wire transfer to their respective bank accounts set out in Section 2.3.

7.9(c)  The Parties agree and acknowledge that any portion of the Aggregate Price Downward Adjustment paid by each Quotas Seller pursuant to Section 7.9(a) or any portion of the Aggregate Price Upward Adjustment received by each Quotas Seller pursuant to Section 7.9(b) shall be allocated pro-rata to the portion of the Quotas Price and the portion of Shares Price received by such Quotas Seller at the Closing.

7.11    After (i) the Aggregate Price is finally determined pursuant to this Article 7 and (ii) the prices of the minority buyouts and the amount of the Buyout Surplus or Buyout Shortfall (if any, as applicable) are finally determined pursuant to Section 7.10, the remaining amount of the Purchase Price Holdback Amount, if any (after any retention pursuant to Section 7.9(a) and or Section 7.10(vi) if any), to which the Buyer is not otherwise entitled pursuant to the foregoing provisions of this Article 7 shall be paid by the Buyer to the Sellers based on the Aggregate Price Allocation, on or before the 5^th Business Day following the final calculations of all such prices, in immediately available funds by wire transfer to their respective bank accounts set out in Section 2.3

In lieu of any other representations or warranties however provided by Law or otherwise, the Sellers severally and not jointly hereby make the following representations and warranties (collectively, the Warranties) to the Buyer, which will be true and correct as at the date of this Agreement and as at the Closing Date (i) except for those Warranties that expressly refer to a specific date, which shall be true and correct as of such date and (ii) except to the extent resulting from actions of the Sellers or the Group Companies that are expressly required hereby or otherwise approved in writing by the Buyer (including in Schedule 3.1), and provided that the Parties agree that the Warranties are qualified and therefore the Sellers are not, nor shall be deemed to be, in breach of any of the Warranties in respect of any facts, acts or circumstances Fairly Disclosed in the Disclosed Items:

The execution and delivery by each Seller, the AGIC Fund, the Xenon Fund and Gripper Co-Investors of this Agreement and the consummation by such Seller, the AGIC Fund, the Xenon Fund of and Gripper Co-Investors the transactions contemplated hereby do not and will not (i) conflict with, or result in a breach, violation or infringement of, or constitute a default under, or give rise to the creation of any Lien or any right of termination, amendment, cancellation or acceleration by any counterparty thereto under, or the loss of any benefit or right of any Group Company under, or require any payment, consent or notice under, (A) the articles of incorporation or the by-laws (or equivalent organization documents) of such Party or any Group Company or (B) any Contract by which such Party or any Group Company is bound or (ii) violate any judgment, order, injunction, award, decree, Law or regulation applicable to such Party or any Group Company.

Each Group Company has regularly obtained and is currently in possession of all the material Permits which may be necessary for the performance of its business and its activities as currently conducted in compliance with all applicable Laws.  No Group Company is in material violation or default under (and no event has occurred that, with notice or the lapse of time or both, would constitute a default or violation of) any material Permit.  No Action is pending or, to the Sellers’ Knowledge, threatened against any Group Company to terminate, revoke, suspend, limit or modify any material Permit.

From the Reference Date through the date of this Agreement:

All raw materials, work in progress and finished products shown in the Reference Date Balance Sheet or owned by any Group Company as of the date hereof or at the Closing Date conform to their accounting value, applicable Laws, applicable industry specifications and any applicable policies and specifications of the Group, are free from material defects in material and workmanship, and are usable and salable in the ordinary course of business.  The quantity of the inventory of each Group Company is adequate for the operation of such Group Company’s business in the ordinary course.

The insurance policies currently maintained by the Group Companies are in full force and effect as of the date of this Agreement.  A list of all insurance policies entered into by the Company is attached hereto as Schedule 8.21, and all such policies have been made available to the Buyer.  All required premiums have been paid with respect to such insurance policies through the date hereof.  Any insurance required to be maintained by any Group Company under any Contract to which it is a party or any applicable Law is so maintained.  No Group Company is currently involved in any dispute with any of its insurance carriers, nor has any insurance claim by any Group Company within the past three years been denied.

At the Closing, the Group Companies will have ownership of or other valid rights to use all of the intangible and tangible assets, real property and services which are material to the Business, and the condition of such assets shall be sufficient to conduct the Business as conducted as of the date of this Agreement.

None of the Group Companies, the Sellers nor any of their respective Affiliates have entered into any Contract or incurred any liability for any brokerage, finder’s or similar fees or commissions in connection with the transactions contemplated hereby, the payment of which could be validly claimed from any Group Company, the Buyer or any of the Buyer’s Affiliates.

Each of the AGIC Fund and the Xenon Fund are creditworthy Persons that hold and will continue to hold assets sufficient to satisfy the indemnification obligations of AGIC BV and HDX, respectively, in accordance with the terms of Article 10 and the respective guarantees set forth in Sections 12.9 and 12.10, in each case, for the full duration for which all such obligations survive under this Agreement (and the duration of any dispute resolution procedure provided for herein, in the case of any disputed claim for indemnification).

The Buyer hereby makes the following representations and warranties to the Sellers which will be true and correct as at the date of this Agreement and as at the Closing Date.

9.1   Each of the Buyer and Parent (i) is a company duly organized, validly existing and in good standing under the Laws of its jurisdiction of incorporation and (ii) has full power and authority to conduct its business as presently conducted and to own its assets and properties as presently owned, except in the case of this clause (ii) as would not reasonably be expected to have, either individually or in the aggregate, a material adverse effect on the Buyer’s ability to timely consummate the transactions contemplated hereby in accordance with the terms hereof.

9.2   Subject to obtaining the Clearance, each of the Buyer and Parent has full power and authority to execute and deliver this Agreement and perform its obligations hereunder, including in the case of the Buyer to validly acquire the Quotas and the Shares from the Sellers under this Agreement.  This Agreement constitutes the valid and binding obligation of each of the Buyer and Parent, enforceable against it in accordance with its terms, subject to the effect of any applicable Laws.  No application to, or filing with, or consent, authorization or approval of, or exemption by, any Governmental Authority or other third party is required of the Buyer or Parent in connection with the execution and performance of this Agreement, except for the Clearance and any applicable filings with the U.S. Securities and Exchange Commission (which applicable filings shall not have a material adverse effect on the Buyer’s ability to timely consummate the transactions contemplated hereby in accordance with the terms hereof).

9.3   The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby do not and will not conflict with, or result in a breach of, or constitute a default under (i) the articles of incorporation or the by-laws of the Buyer or Parent or (ii) any agreement or instrument by which the Buyer or Parent is bound or violate any judgment, order, injunction, award, decree, law or regulation applicable to the Buyer or Parent, except in the case of this clause (ii) for any such conflicts, breaches or defaults that would not reasonably be expected to have, either individually or in the aggregate, a material adverse effect on the Buyer’s ability to timely consummate the transactions contemplated hereby in accordance with the terms hereof.

9.4   Neither the Buyer nor Parent has incurred any liability for any brokerage, finder’s or similar fees or commissions in connection with the transactions contemplated hereby, the payment of which could be validly claimed from the Sellers.

For the avoidance of doubt, any indemnification pursuant to this Section 10.1 arising from a breach of any Group Companies Business Warranties will be limited to the Losses suffered by the relevant Group Companies as a result thereof or in connection therewith.

provided that the Buyer’s maximum aggregate liability for Losses under this Section 10.2, together with all amounts paid by the Buyer to the Sellers hereunder, shall in no event exceed 100% of the Aggregate Price (as finally determined pursuant to Article 7).

10.3    The Parties expressly agree that, to the extent permitted by applicable Law (including, to the extent applicable, Article 1229 of the Code), after completion of the Closing, the rights and remedies provided in this Article 10 shall be in lieu of any and all other rights or remedies available to the Buyer or the Sellers, as the case may be, under applicable Law or otherwise, however arising in connection with any breach of the representations and warranties, covenants and/or obligations of the Sellers or the Buyer contained in this Agreement, other than those rights or remedies set forth by Law and available to the Buyer for Sellers’ fraud, willful misconduct or gross negligence.  In particular, but without limitation to the generality of the foregoing, after completion of the Closing, no breach or inaccuracy of any representation or warranty of the Sellers contained in this Agreement will give rise to any right on the part of the Buyer to rescind or terminate this Agreement (including under Article 1467 of the Code, in which regard the Parties agree and acknowledge that the remedies provided for therein shall not apply to this Agreement).

10.4    All the representations and warranties of the Parties contained in this Agreement (including the Warranties) will survive the Closing until the first anniversary of the Closing Date; provided that (i) the representations and warranties contained in Sections 8.1(i), 8.1(ii), 8.2(i), 8.3(i), 8.3(ii), 8.3(iii), 8.5 (other than 8.5(i)), 8.7, 9.1 and 9.2 (collectively, the Fundamental Warranties) shall survive the Closing indefinitely, (ii) the Warranties in Section 8.20 (but solely in respect of Environmental and Health and Safety Laws) shall survive the Closing until the second anniversary of the Closing Date, (iii) the Warranties in Section 8.16 shall survive the Closing until the third anniversary of the Closing Date and (iv) the Warranties in Section 8.14 shall survive the Closing until 30 days following the expiration of the applicable statute of limitations.  Any indemnification obligations for any breach or inaccuracy of any representation or warranty that would otherwise terminate in accordance with this Section 10.4 shall continue to survive until any related claim(s) for indemnification have been satisfied or otherwise resolved as provided in this Article 10 if the relevant Notice of Claim shall have been given under this Article 10 on or prior to such termination date; provided that indemnification obligations for any breach or inaccuracy of the representation or warranty shall continue to survive only on account of, and only with respect to, such related claim for indemnification.  Notwithstanding anything in this Agreement to the contrary, nothing in this Section 10.4 shall limit any covenant or obligation of the Parties which by its terms contemplates performance after the Closing.

10.5 Anything in this Agreement or in any applicable Law to the contrary notwithstanding, the Sellers’ liability under Section 10.1 shall be subject to the following restrictions and limitations:

10.6    Whenever a claim arises for indemnification under Section 10.1 or 10.2, as the case may be, the Indemnified Party shall promptly notify in writing the Indemnifying Party of such claim of indemnity along with the facts constituting the basis thereof and, when known, the claimed amounts (any such notice, a Notice of Claim); provided, however, that in the event of a claim of indemnity resulting from or in connection with a claim by a third party (a Third Party Claim), the Indemnified Party shall give the relevant Notice of Claim to the Indemnifying Party not later than 10 Business Days prior to the time any response to the Third Party Claim is required, if possible, and in any event within 15 Business Days following receipt of notice thereof (provided that failure to timely notify the Indemnifying Party shall not relieve the Indemnifying Party of any liability it may have to the Indemnified Party, except to the extent that the Indemnifying Party has been actually prejudiced by such failure).

10.7    Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 Business Days in which to dispute the relevant claim of indemnity by sending written notice thereof to the Indemnified Party, setting forth in reasonable detail its reasons for such dispute (a Dispute Notice); provided however that the Indemnifying Party’s failure to send a Dispute Notice within such 20 Business Day period shall be considered as a notice of disagreement by the Indemnifying Party, such that the provisions set forth in Section 10.8 will apply.  In connection with any matter or circumstance that has given rise to a Notice of Claim against the Sellers, the Buyer shall allow, and shall procure that the Group shall allow, the Sellers, and their financial, accounting, Tax or legal advisers, reasonable access to the books, records and personnel of the Group Companies to investigate the matter or circumstance giving rise to such Notice of Claim and whether and to what extent any Loss is payable in respect thereof.  In particular, all relevant and available material documents relating to the relevant Notice of Claim in the possession of the Buyer or the Group Companies shall be disclosed to the Sellers without undue delay, and all such reasonably available information and assistance, including reasonable access to premises and personnel, and the right to examine and copy or photograph any relevant assets, accounts, documents and records, as the Sellers, or their financial, accounting, Tax or legal advisers may reasonably request shall be given without undue delay in order to allow the Sellers to timely notify a Dispute of Notice.

10.8    If (x) a Dispute Notice is timely received by the Indemnified Party or (y) the Indemnifying Party fails to timely send a Dispute Notice to the Indemnified Party, in each case as per Section 10.7, for a period of 30 Business Days following (1) receipt of such Dispute Notice (in the case of clause (x) above) or (2) the expiration of the 20 Business Day period contemplated by Section 10.7 (in the case of clause (y) above), the Indemnifying Party and the Indemnified Party will attempt to resolve any differences which they may have with respect to the matters indicated in the Dispute Notice and Notice of Claim in good faith.  If they resolve in writing the dispute in whole or in part, the Indemnified Party shall be entitled to receive the amounts agreed upon in the manner set forth in Section 10.11 (subject to Section 10.12).  If, at the end of such 30 Business Day period, the Indemnifying Party and the Indemnified Party fail to reach an agreement in writing with respect to all the matters indicated in the Dispute Notice and Notice of Claim, then all matters as to which agreement is not so reached may, thereafter, be submitted by any Party to arbitration pursuant to Article 16.

10.9    With respect to any Third Party Claim the following provisions shall apply:

Notwithstanding anything to the contrary in this Agreement, the Buyer shall have the exclusive right to control in all respects, and neither the Sellers nor any of their respective Affiliates shall be entitled to participate in, any Third Party Claim with respect to any Tax Return of a consolidated, combined or unitary group that includes the Buyer or any of its subsidiaries (other than the Group Companies).

10.10  The Indemnified Party shall use its reasonable best efforts to mitigate Losses indemnifiable by the Indemnifying Party under this Article 10.

10.11  Without prejudice to Section 10.12, the Indemnifying Party will pay any amounts due to the Indemnified Party through wire transfer of immediately available funds to the bank account designated by such Indemnified Party, such wire transfer to be effected within 5 (five) Business Days from the date in which the relevant indemnity has become due and payable based on the provisions of this Agreement.

10.12  All Losses payable to the Buyer (in its capacity as the Indemnified Party) pursuant to this Article 10 shall be paid first from the then-available funds (if any) under the Letter of Credit; provided that the right of the Buyer (in its capacity as the Indemnified Party) to recover for Losses shall not be limited to the remaining amount (if any) under the Letter of Credit, and the Sellers shall be responsible for paying to the Buyer or its designee (as applicable) any amounts by which such Losses exceed the amount available to be drawn under the Letter of Credit, subject to the limitations set forth elsewhere in this Article 10.

10.13  Notwithstanding anything elsewhere in this Agreement to the contrary (including the limitations on the indemnification obligations of the Sellers set forth elsewhere in this Article 10), after completion of the Closing, the Sellers (each according to the Aggregate Price Allocation and therefore severally and not jointly amongst them) shall indemnify and hold the Buyer and its Affiliates (including the Group Companies and Gripper Co-Investors) harmless from and against (i) any and all Losses suffered by Buyer or any of its Affiliates (including Gripper Co-Investors) as a result of or in connection with (A) any breach or inaccuracy in the Warranties made by the Sellers in Section 8.7, (B) any liability of any nature whatsoever of Gripper Co-Investors arising from any fact, event or matter which occurred or existed prior to the Closing, other than the outstanding amount of EUR 100,000 under the Gripper Intercompany Loans; (ii) the reasonable out-of-pocket costs and expenses incurred by the Buyer or any of its Affiliates (including any Taxes incurred, any notary or filing fees and reasonable attorneys’ fees) in connection with merging Gripper Co-Investors with the Buyer following the Closing or, alternatively, in connection with the liquidation or winding up of Gripper Co-Investors following the Closing (to the extent not included in (and without duplication of) the calculation of Transaction Expenses) (the costs and expenses referred to in this clause (ii), the Gripper Co-Investors Merger Expenses); (iii) any and all Losses of Buyer or any of its Affiliates (including Gripper Co-Investors) arising out of or in connection with the Gripper Transfer; (iv) any and all Losses suffered by the Buyer or any of its Affiliates as a result of or in connection with any breach or inaccuracy in the Warranties made by the Sellers in Section 8.23; (v) any Company Demerger Loss suffered by the Company; and (vi) any and all Losses suffered by any Group Company as a result of or in connection with any breach of the Warranties set forth in Section 8.16 insofar as they relate to any claims by, or ownership of Intellectual Property Rights by, the Person set forth on Schedule 10.13.  For the sake of clarity, in the event of any claim under this Section 10.13, the provisions contained in Sections 10.6 to 10.12 shall apply.  The Parties agree that the amount of the Gripper Co-Investors Merger Expenses will in no event exceed €35,000.

10.14  The Parties acknowledge that (i) the indemnification obligations of the Sellers hereunder are autonomous and independent obligations; (ii) none of the Warranties shall be construed or otherwise deemed as a representation or warranty for purposes of Articles 1490 or 1497 of the Code, which shall not apply to any breach or other violation of any representation or warranty of the Sellers hereunder; and (iii) any claim, right or remedy of any Indemnified Party arising hereunder with respect to any such breach or violation shall not be subject to the statute of limitation (“prescrizione”) periods and forfeiture (“decadenza”) restrictions set forth in Article 1495 of the Code.

10.15  The Sellers shall be severally and not jointly liable, each of them based on the Aggregate Price Allocation, for any payment to be made by the Sellers under this Agreement, including the indemnification obligations set forth in Section 10.1 (and any Aggregate Price Downward Adjustment (where due)).

11.1    The obligations of the Sellers and the Buyer to consummate the Closing are subject to the condition precedent that (in addition to any other consent, approval or waiver referred to in Section 4.1(i)) the purchase and sale of the Quotas and the Shares pursuant to this Agreement shall have been approved, cleared or granted an exemption by any competent competition authority of the European Union, of Italy or any other Member State in the European Union and/or of any other competent jurisdiction worldwide without imposing specific conditions or restrictions or requiring that changes be made to the terms and conditions of this Agreement, to the extent that any such approval, clearance or exemption is required to be obtained.

The unconditional approvals, clearances and exemptions contemplated herein are hereinafter collectively referred to as the Clearance.

11.2    Each Party shall in a timely fashion prepare and file all documents required on the part of such Party under applicable law to secure, as soon as reasonably possible, the Clearance and, to this end, the other Parties shall actively cooperate with such Party.

11.3    The Parties shall consult with each other and shall use their reasonable best efforts in order to timely overcome any obstacle to the granting of the Clearance or arising in connection therewith.  In the event that any competent competition authority only approves the transactions contemplated hereby by imposing specific conditions or restrictions or requiring that changes be made to the terms and conditions of this Agreement or the transactions contemplated hereby as a condition to its Clearance, then the Parties shall promptly meet to negotiate in good faith on the necessary changes to be made or actions to be taken in order to comply with any such conditions, restrictions or requests for changes and obtain the Clearance by such competition authority on or prior to the Long-Stop Date, as long as such changes or actions do not trigger a significant deviation from the current terms and conditions of this Agreement or a material increase in the economic or financial burden on, or the risks to be incurred by, any of the Parties.

11.4    If the Clearance is not obtained on or prior to the Long-Stop Date, the provisions of Article 5 shall apply.

12.1    As soon as reasonably practicable after Closing, but in no event later than 15 days thereafter, the Buyer will cause a shareholders’/quotaholders’ meeting of any Group Company to be convened or properly held to validly resolve the release and discharge, to the extent permitted under applicable Law, of the directors and statutory auditors of such Group Company who will have resigned from office pursuant to this Agreement from and against any and all liabilities arising from their holding of the offices as, respectively, directors and statutory auditors until the relevant resignation date, except in case of willful misconduct (dolo) (including fraud) or gross negligence (colpa grave) of such directors or statutory auditors; provided that (i) the Buyer shall (a) provide the Sellers with drafts of such resolutions no later than five Business Days prior to the date scheduled for the shareholders’/quotaholders’ meeting and (b) take into consideration in good faith the reasonable comments that the Sellers’ Representative may provide thereto within three Business Days from the receipt thereof by the Sellers, and (ii) any such release and discharge shall be without prejudice to, and shall not limit or waive in any way any of the Buyer’s rights pursuant to Article 10 or any of the Sellers’ obligations under Article 10.

12.4    Each of the relevant Sellers acknowledges and agrees that (i) the restrictions contained in Section 12.3 (a) are reasonable and necessary to protect the legitimate interests of the Buyer from and after the Closing and (b) constitute a material inducement to the Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement; and (ii) the Aggregate Price compensates the relevant Sellers, in part, for their agreement to the restrictions contained in Section 12.3.  In the event that any part of Section 12.3 is determined to exceed the permitted scope of such restrictions under applicable Law (whether in terms of duration or territory, products or services covered), then the Parties agree that Section 12.3 shall nevertheless be interpreted to apply to the maximum extent permitted by applicable Law.

12.5    For a period of two years from and after the Closing Date, each Seller shall not, and shall cause its Affiliates not to, hire or solicit to hire any employee of any Group Company as of the date hereof or as of the Closing Date, or any non-employee service provider to any Group Company as of the date hereof or as of the Closing Date who devotes a majority of his or her working time to the Group; provided, however that each Seller and its Affiliates shall be free to conduct general solicitations for employment (including utilizing an independent employment search firm) if such general solicitation does not target employees of the Buyer and its Affiliates, including the Group (either individually or as a group).  For the sake of clarity, the Parties acknowledge and agree that each Seller shall be the sole Party liable to the Buyer (or any other Indemnified Party) for any breach of its obligations under this Section 12.5 (including in respect of any indemnification pursuant to Article 10, which shall be entirely and exclusively payable by such Seller).

12.6    Each Party shall, and shall cause its Affiliates to, provide to the other Parties such cooperation, documentation and information relating to the Group Companies as any of them may reasonably request in (i) filing any Tax Return, amended Tax Return or claim for refund, (ii) determining a liability for Taxes, an indemnity obligation in respect of Taxes under Article 10, or a right to refund of Taxes or (iii) conducting any Tax audit or other proceeding.  Each Party shall make itself (in case of a natural Person) and its employees reasonably available on a mutually convenient basis to provide an explanation of any documents or information so provided.

12.7    Notwithstanding anything in this Agreement to the contrary, the Sellers shall terminate (or cause to be terminated) on or before the Closing Date all Tax sharing, allocation, indemnity or similar agreements or arrangements (other than this Agreement), if any, to which any Group Company, on the one hand, and the Sellers or any of their respective Affiliates (other than the Group Companies) or direct or indirect owners, on the other hand, are parties, and none of the Buyer, the Group Companies, or any of their respective Affiliates or direct or indirect owners shall have any obligations thereunder after the Closing.

12.8    The Parent is a Party to this Agreement for the purposes of this Section 12.8 whereby the Parent (i) assumes joint and several liability with the Buyer to the Sellers in relation to the due and timely performance by Buyer of all of its obligations under this Agreement (whether such performance is due before, at or after completion of the Closing) and (ii) shall ensure that on the Closing Date adequate funding is available and sufficient for the Buyer to fulfill of any and all of its payment obligations hereunder, including without limitation the payment of the Provisional Purchase Price Amount and the other payments contemplated by Section 6.2(iii)(b).  The Parent hereby expressly guarantees the Buyer’s obligations under Article 6 and Article 9 and accepts Article 14, Article 15 and Article 16.

12.9    The AGIC Fund is a Party to this Agreement for the purposes of this Section 12.9 whereby the AGIC Fund (i) assumes joint and several liability with AGIC BV to the Buyer in relation to the due and timely performance by AGIC BV of all of its obligations under this Agreement from and after the first anniversary of the Closing and (ii) shall ensure that adequate funding is available and sufficient for AGIC BV to fulfill any and all of its payment obligations it may have from and after the first anniversary of the Closing pursuant to Article 10.  The AGIC Fund hereby expressly guarantees AGIC BV’s obligations under Article 10 from and after the first anniversary of the Closing and accepts Article 14, Article 15 and Article 16.

12.10  The Xenon Fund is a Party to this Agreement for the purposes of this Section 12.10 whereby the Xenon Fund (i) assumes joint and several liability with HDX to the Buyer in relation to the due and timely performance by HDX of all of its obligations under this Agreement from and after the first anniversary of the Closing and (ii) shall ensure that adequate funding is available and sufficient for HDX to fulfill any and all of its payment obligations it may have from and after the first anniversary of the Closing pursuant to Article 10.  The Xenon Fund hereby expressly guarantees HDX’s obligations under Article 10 from and after the first anniversary of the Closing and accepts Article 14, Article 15 and Article 16.

13.1    The Buyer shall keep private and confidential all information related to the Sellers which has been acquired pursuant to or as collected in connection with this Agreement.  The Buyer shall use commercially reasonable efforts to maintain the secrecy and confidentiality of the aforesaid information, as well as to prevent any disclosure of the same, it being acknowledged and agreed that none of the provisions contained in this Section 13.1 and Section 13.3 shall apply to (i) any such information that is or becomes publicly available without breach by the Buyer of its obligations hereunder or (ii) any disclosure that is required by any Law or regulation issued by any authority, including stock exchange authorities, which has jurisdiction over the Buyer or any of its Affiliates or by any Court or regulatory agency of competent jurisdiction.  In the event (and for so long as) the Closing does not occur for any reason whatsoever, any information provided to the Parent, the Buyer or their Affiliates relating to the Business and the Group and the matters contemplated hereunder, shall be kept confidential in accordance with terms set out in the Confidentiality Agreement, which shall remain in full force and effect in accordance with its terms until the first anniversary of the date hereof (and shall thereupon terminate).

13.2    The Sellers shall and shall cause their respective Affiliates to keep private and confidential all information in their possession relating to the Business, the Group, and the Buyer and its Affiliates, except for information that is or becomes public through no fault of the Sellers.

13.3    The initial press releases of each of Parent and the AGIC Fund announcing the transactions contemplated hereby shall be in a form mutually agreed between the Buyer and the Sellers’ Representative.  Except as otherwise required by Law or the rules of the New York Stock Exchange, no public filing, publicity, press release or public announcement concerning the execution or delivery of this Agreement, any of the provisions contained herein or the transactions contemplated hereby will be issued by any Party or any of their respective Affiliates without the advance written consent and approval, as to both form and contents, of the Sellers’ Representative and the Buyer, which consent and approval shall not be unreasonably withheld; provided that (i) the Buyer and its Affiliates may communicate with their investors, employees, customers and other business partners in the ordinary course of business regarding the transactions contemplated hereby; (ii) each Party and its Affiliates may make public communications of information identical or substantially similar to information previously disclosed by the Parties in accordance with this Agreement; and (iii) this Section 13.3 shall not apply to the Buyer and its Affiliates from and after the Closing.

14.1    The Warranties and, in general, all other clauses of this Agreement providing for any obligation of the Parties to be performed after the Closing Date shall remain in full force and effect after the Closing, without necessity for any of the Parties to reiterate or otherwise confirm its commitment with respect thereto.

14.2    Except as otherwise specifically provided herein, no Party may assign any of its rights, interests or obligations hereunder without the prior written consent of the Buyer (in the case of assignment by any Seller, the AGIC Fund or the Xenon Fund) or Sellers’ Representative (in the case of assignment by the Buyer or Parent).

14.3    No waiver by a Party of any claim or failure by another Party to perform any provision of this Agreement shall operate or be construed as a waiver in respect of any other claim or failure whether of a like or different character.

14.4    This Agreement may not be waived, changed, modified or discharged orally, but only by an agreement in writing signed by the Party against whom enforcement of any such waiver, change, modification or discharge is sought.

14.5    If any of the provisions of this Agreement is or becomes invalid, illegal or unenforceable under the laws of any jurisdiction, the validity, legality or enforceability of the remaining provisions shall not in any way be affected or impaired.  The Parties shall nevertheless negotiate in good faith in order to agree the terms of a mutually satisfactory provision, achieving so nearly as possible the same commercial effect, to be substituted for the provision so found to be void or unenforceable.

14.6    Except as otherwise set forth herein, each of the Parties shall pay its own costs, charges and expenses incurred in connection with the negotiation, preparation and implementation of this Agreement and the transactions contemplated by it.

14.7(a)   Any notice or other communication to be given hereunder shall be in writing in the English language and signed by or on behalf of the Party giving it and may be served by sending it by fax, delivering it by hand or sending it by registered mail return receipt requested to the address and for the attention of the relevant party as set out in Section 14.7(b) (or as otherwise notified from time to time hereunder).  Any notice so served by hand, fax or post shall be deemed to have been received:

provided that where, in the case of delivery by hand or by fax, such delivery or transmission occurs after 6 p.m. on a Business Day or on a day which is not a Business Day, service shall be deemed to occur on the next following Business Day.  References to time in this clause are to local time in the country of the addressee.

14.8(a)  Without prejudice to Section 14.9, each of the Sellers hereby irrevocably designates and appoints, pursuant to article 1703 of the Code (it being understood that such designation and appointment is made also in the interest of the Buyer, pursuant to and for the purposes of articles 1411 and 1723 of the Code, and the Buyer is expressly declared to benefit from such appointment) AGIC BV as the exclusive representative (the Sellers’ Representative) of such Seller and as the attorney-in-fact and agent for and on behalf of such Seller with respect to this Agreement and in relation to (a) determining, giving and receiving notices and processes hereunder; (b) entering into any amendment hereto or modification of the terms hereof; (c) consenting to any waiver or assignment hereof; (d) serving, objecting to, negotiating and settling any and all claims for indemnification pursuant to this Agreement; (e) discussing and resolving any other disputes hereunder; and (f) taking any and all actions and making any decisions required or permitted to be taken by the Sellers’ Representative or by the Sellers or any them under this Agreement.

14.8(b)  Each Seller acknowledges and agrees that (i) in performing the functions specified in this Agreement, the Sellers’ Representative will not be liable to such Seller except in case of willful misconduct or fraud on the part of the Sellers’ Representative and (ii) in no event will the Buyer or any of its Affiliates be liable to any Seller for any action taken by the Sellers’ Representative (or the Buyer’s reliance on any such actions) hereunder.  Any out-of-pocket costs and expenses incurred by the Sellers’ Representative in connection with actions taken pursuant to the terms of this Agreement (including the hiring of legal counsel and incurring of reasonable legal fees and costs) shall be borne by the Sellers pro rata based on the Aggregate Price Allocation.  Notices or communications to or from the Sellers’ Representative shall constitute notice to or from any and all of the Sellers (or from that Seller or those Sellers on behalf of which such notice is specifically delivered by the Sellers’ Representative).  Any decision, consent or instruction of the Sellers’ Representative shall constitute a decision, consent or instruction of all the Sellers to which it relates and shall be final, binding and conclusive upon such Sellers and the Buyer shall be entitled to conclusively rely, without any further inquiry or action and without liability to any of the Sellers, on the Sellers’ Representative’s decisions, consents, notices and instructions.

14.9    In respect of any payment to be made by all the Sellers under this Agreement, each Seller shall be liable only individually (responsabilità parziaria) and severally (responsabilità disgiunta), in proportion to its total share in the Aggregate Price allocated to such Seller in accordance with the Aggregate Price Allocation.  Any joint liability (responsabilità solidale) of the Sellers is excluded.

14.10  All Schedules, Exhibits and Annexes attached to this Agreement are incorporated herein and made a part hereof as fully as if written in this Agreement.

14.11  The Parties hereby agree to execute and deliver all such instruments and documents and to perform all such acts and do all such other things as may be necessary to further the purposes of this Agreement; provided, however that the provisions of such further instruments and documents shall not affect the understanding contained herein which shall continue to be wholly and exclusively valid and enforceable between the Parties.

14.12  Unless otherwise expressly provided, any reference to Articles, Sections, Paragraphs, clauses or Schedules contained in this Agreement shall be deemed to be a reference to Articles, Sections, Paragraphs, clauses hereof and Schedules hereto.

14.13  This Agreement, including all of its Schedules, Exhibits and Annexes, constitutes the entire agreement between the Parties in respect of the subject matter hereof and supersedes all prior agreements, if any, relating to the same matter.

14.14  Except for certain documents contained in the Schedules hereto which are in the Italian language, this Agreement shall be executed in the English language, which shall be the only language governing the Agreement.

This Agreement and the rights and obligations of the Parties hereunder shall be governed by, and construed and interpreted in accordance with, the laws of the Republic of Italy without regard to the conflict of law rules.

16.1    Any controversy, dispute or claim arising under or in connection with this Agreement (including in relation to the existence, validity, interpretation, performance, breach, termination or enforceability hereof) shall be exclusively resolved by a binding arbitration under the Rules of the Chamber of Arbitration of Milan - Camera Arbitrale di Milano (the Rules) then in force; provided that any controversy, dispute or claim regarding the amount or calculation of the Aggregate Price shall be resolved by the Auditor in accordance with Article 7 and any dispute regarding manifest error (errore manifesto), including the existence thereof, in any determination of the Auditor shall be resolved by binding arbitration under the Rules then in force.

16.2    For the purposes of appointing the arbitration panel, all of the Sellers shall be considered as a single Party and shall be entitled to each collectively appoint only one arbitrator as per Section 16.3.

16.3    The panel of arbitrators will be composed of three members to be appointed as follows:  each of the Buyer and the Sellers’ Representative will appoint one arbitrator; the two arbitrators appointed by them will then appoint a third arbitrator who shall chair the panel; provided however that, if the two initially appointed arbitrators fail to agree on the designation of the third arbitrator within 10 Business Days of the appointment of the later of such two arbitrators, or should a Party fail to appoint its arbitrator within 10 Business Days of the notice commencing the arbitration proceedings, such appointments will be made pursuant to the Rules.  Any arbitrator appointed hereunder (whether by the Buyer, the Sellers’ Representative or by the Chamber of Arbitration of Milan (Camera Arbitrale di Milano)) shall be (a) an experienced arbitrator of disputes arising out of large, complex commercial transactions; (b) an Italian qualified lawyer who is fluent in English; and (c) unaffiliated, and without prior or current financial alliances or affiliations, with any Party.

16.4    The arbitrators shall resolve the dispute “in via rituale secondo diritto” pursuant to the substantive laws of Italy, without regard to conflict of law rules.  The venue of the arbitration shall be Milan, Italy, and the arbitration proceedings shall be conducted in English, in which regard all arbitrators shall be fluent in the English language.

16.5    Each Party shall bear its own costs and expenses incurred in connection with the arbitration proceedings.  In the award, the arbitrators shall finally allocate the arbitration fees, costs and expenses between the Parties and, where necessary, shall order either Buyer or the Sellers to promptly reimburse the other Party or Parties for any advances paid by such Party which are in excess of such Party’s share of such fees, costs and expenses as finally allocated in the award.

16.6    The award will be final and binding on the Parties and not subject to appeal or judicial review.  The Parties reserve the right to seek provisional or conservatory measures from courts of competent jurisdiction in connection with matters submitted to arbitration pursuant hereto.

16.7    Without prejudice to Sections 16.1 to 16.6, the Parties hereby submit to the exclusive jurisdiction of the courts of Milan, Italy, in respect of any dispute which under mandatory provisions of Italian law cannot be referred to an arbitration panel but which however concerns this Agreement.