UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of report (Date of earliest event reported): July 21, 2014

 

 

MANITEX INTERNATIONAL, INC.

(Exact Name of Registrant as Specified in Charter)

 

 

 

Michigan   001-32401   42-1628978

(State or Other Jurisdiction

of Incorporation)

  

(Commission

File Number)

  

(IRS Employer

Identification No.)

9725 Industrial Drive, Bridgeview, Illinois 60455

(Address of Principal Executive Offices) (Zip Code)

(708) 430-7500

(Registrant’s Telephone Number, Including Area Code)

(Former Name or Former Address, if Changed Since Last Report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 

Item 1.01. Entry into a Material Definitive Agreement.

On July 21, 2014, Manitex International, Inc. (the “Company”) entered into a series of agreements to acquire PM Group S.p.A, (“PM Group”), a manufacturer of truck mounted cranes, and its subsidiary Oil & Steel, S.p.A (“O&S”), both based in San Cesario sul Panaro, Modena, Italy (the “Transaction”). The Transaction is contingent on the approval by an Italian bankruptcy court of a Debt Restructuring Agreement, dated July 21, 2014, between PM Group, O&S, six Italian banks that are parties thereto (the “Banks”) and Loan Agency Services S.r.l., (the “Debt Restructuring Agreement”). Under the Debt Restructuring Agreement, PM Group and O&S debt to the Banks is reduced by approximately €49,000,000. Additionally, the Debt Restructuring Agreement establishes a new repayment schedule for the remaining term debt and converts €5,000,000 of interest bearing debt to non-interest bearing debt. The Company will pledge the PM Group stock it holds to secure PM Group’s obligations to the two banks that hold senior debt.

The stock of PM Group held by the Company will be pledged to secure the Company’s obligationa to the two senior banks.

In connection with the Transaction, the Company has entered into the following agreements, each dated as of July 21, 2014 (collectively, the “Transaction Documents”):

 

  1. Investment Agreement (the “Investment Agreement”), between the Company, IPEF III Holdings n° 11 S.A (“IPEF”) and Columna Holdings Limited (“Columna”). The Investment Agreement is attached hereto as Exhibit 10.1.

 

  2. Debt Assignment Agreement (the “BPER Debt Assignment”) between the Company and Banca Popolare del’Emilia Romagna S.C. (“BPER”). The BPER Debt Assignment is attached hereto as Exhibit 10.2.

 

  3. Debt Assignment Agreement (the “Unicredit Debt Assignment”) between the Company and Unicredit S.P.A.(“Unicredit”). The Unicredit Debt Assignment is attached hereto as Exhibit 10.3.

 

  4. Option Agreement (“Option Agreement”) by and between the Company and BPER. The Option Agreement is attached hereto as Exhibit 10.4.

 

  5. Commitment Letter (“Commitment Letter”) dated July 21, 2014 between the Company and PM Group. The Commitment Letter is attached hereto as Exhibit 10.5.

The Company also entered into a fee letter as described below.

The estimated total value of the consideration that the Company will pay to acquire PM Group and O&S consists of the following components:

 

  1. €17,477,000 in cash (or roughly $23,639,000, based on Euro/U.S. dollar exchange rate of 1.3526 (the “Assumed Exchange Ratio”). For purpose of estimating the U.S. dollar value of the consideration an exchange rate as of July 18, 2014 has been used.

 

  2. 1,000,000 shares of the Company’s common stock, no par value (estimated at roughly $15,370,000 based on the July 18, 2014 closing price of $15.37 for the Company’s common stock);

 

  3. the assumption of certain debt by PM Group and O&S, including term debt of €27,751,000 and working capital borrowing of €19,549,000 (for an aggregate estimated amount of $63,978,000, based on the Assumed Exchange Ratio);

 

  4. the assumption by PM Group and O&S of certain liabilities associated with derivative contracts of €2,094,000 (estimated at $2,832,000 based on the Assumed Exchange Ratio); and

  5. an Option Agreement with an estimated fair value of €750,000 (estimated at $1,015,000 based on the Assumed Exchange Ratio).

The actual value of the foregoing consideration amount will be based on the applicable Euro/U.S. dollar exchange rate and closing price of the Company’s common stock on the date the transaction closes.

Summarized below are material terms of the Transaction Agreements:

 

     Type of Consideration  
     Cash in €      Assumed
debt &
Liabilities
in Euros		    Shares of
Common
Stock		  

Investment Agreement

         

The Investment Agreement requires either the current owners of PM Group or the Company to make an investment of €44,500,000 in PM Group. Under the agreement Columna is also to make a €1,000,000 payment to purchase Pilosio s.p.a., a subsidiary of PM Group that is not being acquired by the Company. These funds will be used by PM Group to retire a portion of the existing bank debt.

 

Under the Investment Agreement, the Company’s investment is comprised of investment in cash of €12,000,000 and credits from €32,500,000 of debt that the Company will acquire from Unicredit and BPER). The debt at the time of contribution will be converted to equity in accordance with Italian statutory accounting guidance.

 

If the existing shareholders make this investment, which is not expected, the Transaction Documents will be terminated. If the Company makes the investment in PM Group, the Company will receive new shares representing 100% of the PM Group equity and the prior shareholder’s shares will be cancelled as a matter of Italian law.

    € 12,000,000       See
Assignment
Agreements
below for
basis of
debt.		   
BPER Assignment Agreements         
Under the BPER Assignment Agreement, BPER is to assign to the Company €13,750,000 of PM Group debt in exchange for a cash payment of €1,500,000 and 430,000 shares of the Company’s common stock.    € 1,500,000            430,000   
Unicredit Assignment Agreements         
Under the Unicredit Assignment Agreement, Unicredit is to assign to the Company €18,750,000 of PM Group debt in exchange for a cash payment of €1,500,000 and 430,000 shares of the Company’s common stock.    € 1,500,000            430,000   

Option Agreement        

Under the Option Agreement BPER will sell to the Company PM Group debt with a face value of €5,000,000. Under the Option Agreement BPER is to receive €2,500,000 if PM Group has 2017 EBITDA, as defined in the agreement, of between €14,500,000 and €16,500,000 and €5,000,000 if 2017 EBITDA, as defined in the agreement exceeds €16,500,000. If 2017 EBITDA, as defined in the agreement is less than €14,500,000, BPER is to sell the debt to the Company for €1.

 

Based on the estimated probability of PM Group’s 2017 EBITDA, the Company currently estimates the fair value of the debt to be acquired at €750,000.

       € 750,000     
Debt Restructuring Agreement and other assumed liabilities        
Under the Debt Restructuring Agreement the following debt and liabilities, which are assumed in the acquisition of PM Group and O&S, remain obligations of PM Group:        

Senior term debt -Interest bearing

       € 9,243,000     

Senior debt – non-interest bearing

         5,000,000     

Senior debt PIK interest

         2.862,000     

Senior debt accrued interest

         1,422,000     

Junior debt and accrued interest

         13,718,000     
     

 

 

    
        32,245,000     

Estimated fair market adjustment

         (4,494,000 )   
     

 

 

    
      € 27,751,000     

Working capital lines

       € 19,549,000     

Liability related to derivative contracts

       € 2,094,000     
Additional investment by the Company to pay PM Group and O&S management incentive payments    € 1,477,000           40,000   
The Debt Restructuring Agreement also establishes a new repayment schedule for the remaining term debt and converts €5,000,000 of interest bearing debt to non-interest bearing debt. See repayment schedule below.        
Fee Letter        
According to the terms of the Fee Letter, the Company is to make a payment of €1,000,000 and deliver 100,000 shares of the Company’s common stock to Columna. Columna is an investment advisor of IPEF, the current owner of 76.66% of PM Group’s outstanding shares. This payment is being made in consideration of Columna’s substantial costs incurred in connection with its efforts to restructure PM Group’s debt and to facilitate a transfer of ownership interest to the Company    € 1,000,000           100,000   
  

 

 

       

 

 

  

Total consideration in Euros and number of shares

    € 17,477,00       € 50,144,000         1,000,000   

Estimated exchange rate

      1.3526         1.3526      

Estimated stock price

          $ 15.37   
        

 

 

  

Total consideration in dollars

    $ 23,639,000       $ 67,825,000       $ 15,370,000   
  

 

 

     

 

 

     

 

 

  

Total Value of all consideration in dollars

          $ 107,194,000   
        

 

 

  
Commitment Letter         
The Commitment Letter details the conditions that are required to take place for the Transactions Agreements to become effective. The obligations contained in the above Transactions Agreements become void and of no effect without any liability to the Company if the conditions in the Commitment Letter are not satisfied or waived by the Company.         

Under the Debt Restructuring Agreement PM Group is obligated to make principal debt payments as follows:

 

Year

    Amount in €  

2015

    € 2,951   

2016

      2,627   

2017

      2,500   

2018

      4,500   

2019

      5,221   

2020

      5,000   

2021

      6,446   

2022

      3,000   
  

 

 

  

Total Payments

    € 32,245   
  

 

 

  

The respective descriptions of the Transaction Agreements set forth herein do not purport to be complete and are qualified in their entirety by reference to the full text of such documents, which are attached as Exhibits 10.1, 10.2, 10.3, 10.4 and 10.5 to this Current Report on Form 8-K and incorporated herein by this reference.

A copy of the press release issued by the Company on July 21, 2014 announcing the Transaction is filed as Exhibit 99.1 to this Current Report on Form 8-K. The Company also posted presentation slides dated July 21, 2014 (Exhibit 99.2) that were used during a conference call and webcast which took place on Monday July 21, 2104.

Both Exhibits can be accessed from the Investor Relations section of the Company’s website at www.ManitexInternational.com.

Item 9.01. Financial Statements and Exhibits.

See the Exhibit Index set forth below for a list of exhibits included with this Current Report on Form 8-K.

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the Company has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

MANITEX INTERNATIONAL, INC.
By:   /S/ DAVID H. GRANSEE
Name:   David H. Gransee
Title:   Vice President and CFO

Date: July 25, 2014

EXHIBIT INDEX

 

Exhibit

Number

   

Description

10.1    Investment Agreement, dated July 21, 2014, between Manitex International, Inc., IPEF III Holdings n° 11 S.A and Columna Holdings Limited.
10.2    Debt Assignment Agreements, dated July 21, 2014, between Manitex International, Inc. and Banca Popolare del’Emilia Romagna S.C.
10.3    Debt Assignment Agreements, dated July 21, 2014, between Manitex International, Inc. and Unicredit S.P.A.
10.4    Option Agreement, dated July 21, 2014, by and between Manitex International, Inc. and Banca Popolare del’Emilia Romagna S.C.
10.5    Commitment Letter dated July 21, 2014 the Company and PM Group
99.1    Press Release dated July 21, 2014.
99.2    Presentation slides dated July 21, 2014.
EX-10.1

Exhibit 10.1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

IPEF III Holdings n° 11 S.A.

18 rue de l’Eau

L-1449 Luxembourg

Columna Holdings Limited

1 Royal Plaza

Royal Avenue

St Peter Port

Guernsey GY 2HL

Bridgeview, 21 July 2014

Dear Sirs,

RE: investment agreement in PM Group S.p.A.

we refer to our previous conversations and propose hereby the following agreement:

INVESTMENT AGREEMENT

by and between

Manitex International Inc., a company duly organized and validly existing under the laws of the State of Michigan (U.S.A.), with registered office at 9725 Industrial Drive, Bridgeview, Illinois, represented herein by Andrew Rooke, President and Chief Operating Officer duly authorized by virtue of the board of directors resolution of 10 July 2014 (hereinafter “Manitex”)

- on the one hand -

and

 

1

Exhibit 10.1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

IPEF III Holdings n° 11 S.A., a company duly organized and validly existing under the laws of Luxembourg, with registered office at 18 Rue de l’Eau, Luxembourg, Companies Registry number B 78607, Italian tax code 97398790150 represented herein by Emanuela Di Muzio by virtue of a special power of attorney granted in Luxembourg on 5 June 2014 before Notary Michael Martine Schaeffer (hereinafter “IPEF”)

and

Columna Holdings Limited, a limited liability company duly organized and validly existing under the laws of England, with registered office at 1 Royal Plaza, Royal Avenue, St Peter Port, Guernsey, represented herein by Emanuela Di Muzio by virtue of a special power of attorney granted in Guernsey on 25 June 2014 before Notary Michael Julian Riddiford (hereinafter “Columna”)

- on the other hand –

 

2

Exhibit 10.1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

TABLE OF CONTENTS

RECITALS

ARTICLES:

 

ARTICLE 1 - DEFINITIONS - INTERPRETATION

      10   

ARTICLE 2 - OBLIGATIONS OF IPEF IN RESPECT OF THE CAPITAL INCREASES

      17   

ARTICLE 3 - FURTHER OBLIGATIONS OF IPEF PRIOR TO CLOSING

      18   

ARTICLE 4 - CLOSING

      20   

ARTICLE 5 - REPRESENTATIONS AND WARRANTIES BY IPEF

      22   

ARTICLE 6 - REPRESENTATIONS AND WARRANTIES BY MANITEX

      24   

ARTICLE 7 - COVENANTS

      25   

ARTICLE 8 - INDEMNIFICATION FOR BREACH OF IPEF

      29   

ARTICLE 9 - INDEMNIFICATION BY MANITEX

      31   

ARTICLE 10 - CONDITIONS PRECEDENT TO CLOSING

      32   

ARTICLE 11- TERMINATION

      34   

ARTICLE 12 - ANNOUNCEMENTS AND CONFIDENTIALITY

      35   

ARTICLE 13 - MISCELLANEOUS

      36   

ARTICLE 14 - GOVERNING LAW AND ARBITRATION

      39   

LIST OF THE SCHEDULES:

Schedule F(a) – resolution of the board of directors of PM of 10 June 2014

Schedule F(b) – draft financial statements of PM as at 31 December 2013

Schedule G(a) – resolution of the board of directors of O&S of 10 June 2014

Schedule G(b) – draft financial statements of O&S as at 31 December 2013

Schedule H(a) – notice of PM’s ordinary and extraordinary shareholders meeting of 30 June 2014

Schedule I(a) – notice of O&S’s ordinary and extraordinary shareholders meeting of 30 June 2014

Schedule J – list of candidate directors filed by IPEF on 20 June 2014

Schedule K(a) – execution copy of the Banks Restructuring Agreement

 

3

Exhibit 10.1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

Schedule K(b) – execution copy of the Fiduciary Mandate for the PM Shares

Schedule K(c) – execution copy of the Fiduciary Mandate for the Pilosio Shares

Schedule K(d) – execution copy of the Escrow Agreement

Schedule K(e) – execution copy of the Pilosio Transfer Agreement

Schedule K(f) – execution copy of the Assignment Agreements of the PM Bank Debts

Schedule K(g) – execution copy of the Put and Call Agreement

Schedule K(h) – execution copy of the Assignment Agreements of the O&S Bank Debts

Schedule 1.1 – Restructuring Plan

Schedule 3.1 – Resignation letter of directors and possibly statutory auditors (sindaci)

Schedule 5.1(c)(iii) – by-laws of PM and O&S

 

4

Exhibit 10.1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

RECITALS

 

A. IPEF is an investment vehicle fully owned by Columna;

 

B. PM Group s.p.a. is a company duly incorporated and validly organised under the laws of Italy, with registered office at 22 Via Verdi, San Cesario sul Panaro (MO), Italy, number of registration at the Register of Companies of Modena 334223, with a share capital of Euro 23,311,420.00, fully paid-in and divided into no. 101,312,500 ordinary shares with no nominal value (hereinafter referred to as “PM”);

 

C. PM owns 100% of the shares of the following companies:

 

  (i) Oil&Steel s.p.a, a company duly incorporated and validly organised under the laws of Italy, with registered office at 22 Via Verdi, San Cesario sul Panaro (MO), Italy, number of registration at the Register of Companies of Modena 02313650364 with a share capital of Euro 362,400.00 fully paid-in and divided in no. 362,400 ordinary shares, each having a par value of Euro 1.00 (hereinafter referred to as “O&S”);

 

  (ii) Pilosio s.p.a., a company duly incorporated and validly organised under the laws of Italy, with registered office at Via Fermi 45, Tavagnacco (UD), Italy, number of registration at the Register of Companies of Udine 251502 with a share capital of Euro 5,000,000.00 fully paid-in and divided into no. 5,000,000 ordinary shares, each having a par value of Euro 1.00 (hereinafter referred to as “Pilosio”);

 

D. the share capital of PM is currently held by the following shareholders (hereinafter the “Shareholders”), IPEF being the majority shareholder:

 

Shareholders

    No. Shares      Percentage of PM’s share
capital		  

IPEF

      77,669,404         76.66 % 

Felofin s.p.a.

      16,786,091         16.57 % 

BS Private Equity s.r.l.

      1,182,784         1.17 % 

Luigi Fucili

      1,083,555         1.07 % 

 

5

Exhibit 10.1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

Andrea Antonino Certo

      993,260         0.98 % 

Paolo Balugani

      939,082         0.93 % 

Giuliano Asperti

      845,174         0.83 % 

Attilio Imi

      657,358         0.65 % 

Nicola Zago

      516,495         0.51 % 

Giancarlo Gaggioli

      361,185         0.36 % 

Fosco Celi

      187,816         0.19 % 

Giovanni Tacconi

      90,296         0.09 % 

 

E. PM and O&S are primarily engaged in the manufacturing and sale of truck mounted hydraulic cranes and aerial platforms.

 

F. On 10 June 2014 by virtue of the resolution attached hereto as Schedule F(a) the board of directors of PM approved the draft financial statements of PM as at 31 December 2013 attached hereto as Schedule F(b) and resolved to call in:

 

  1) the ordinary shareholders meeting of PM on 30 June 2014 in first call and on 30 July 2014 in second call to resolve on:

 

  (i). the approval of the financial statement of PM as at 31 December 2013; and

 

  (ii). the appointment of the new directors, including the President of the Board of Directors, and statutory auditors (sindaci) in lieu of the current directors and statutory auditors (sindaci) whose office will terminate by law upon approval of the financial statements under paragraph (i) above; and

 

  (iii). the appointment of the auditing company for the fiscal years 2014-2017 (hereinafter the “PM’s Ordinary Shareholders Meeting”)

 

  and     

 

  2) the extraordinary shareholders meeting of PM on 30 June 2014 in first call and 30 July 2014 in second call (hereinafter the “PM’s Extraordinary Shareholders’ Meeting”) to resolve on the following actions (hereinafter collectively the “Capital Increases”):

 

6

Exhibit 10.1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

  (i) a capital increase for Euro 10,000,000.00 plus a share premium of Euro 7,927,316.00 and an equity contribution of Euro 26,572,684.00 to cover losses (equal to a total amount of Euro 44,500,000.00) – conditional upon full subscription thereof (inscindibile) and Final Confirmation (as defined below) – to be subscribed for by the Shareholders and paid-in in cash and/or by way of set-off of due claims of the Shareholders against PM (hereinafter the “Shareholders Capital Increase”);

and, in the event of failure of the Shareholders to subscribe in full for the Shareholders Capital Increase,

 

  (ii) a capital increase for 10,000,000.00 plus a share premium of Euro 7,927,316.00 and an equity contribution of Euro 26,572,684.00 to cover losses (equal to a total amount of Euro 44,500,000.00)—conditional upon full subscription thereof (inscindibile) and Final Confirmation (as defined below)—to be subscribed for by Manitex and paid–in in cash and/or by way of set-off of due claims of Manitex against PM (hereinafter the “Manitex Capital Increase”).

 

G. On 10 June 2014 by virtue of the resolution attached hereto as Schedule G(a) the board of directors of O&S approved the draft financial statements of O&S as at 31 December 2013 attached hereto as Schedule G(b) and resolved to call in:

 

  1) the ordinary shareholders meeting of O&S on 30 June 2014 in first call and 30 July 2014 in second call to resolve on the approval of the financial statement as at 31 December 2013 and the appointment of the auditing company for the fiscal years 2014-2017 (hereinafter the “O&S Ordinary Shareholders Meeting”);

and

 

  2) the extraordinary shareholders meeting of O&S on 30 June 2014 in first call and 30 July 2014 in second call (hereinafter the “O&S Extraordinary Shareholders’ Meeting”) to resolve on the following actions:

 

7

Exhibit 10.1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

  (i) a capital increase in two tranches - the first one to be paid-in full (inscindibile)- for Euro 1.000,000.00 plus a share premium of Euro 2,500.996,00 and a second one – that can be subscribed and paid for also partially - for Euro 600,000.00 plus in any case an equity contribution of Euro 6,197,686.00 to cover losses – conditional upon both the Final Confirmation (as defined below) and subscription in full for the Shareholders Capital Increase or the Manitex Capital Increase, as the case may be – through issuance of corresponding ordinary shares of O&S to be subscribed for by PM and paid–in in cash or by way of set-off of due claims of PM against O&S (hereinafter the “O&S Capital Increase”).

 

H. The board of directors of PM called in PM’s Extraordinary Shareholders Meeting and PM’s Ordinary Shareholders Meeting pursuant to the notice of meeting, duly delivered to the shareholders, attached hereto as Schedule H(a).

 

I. The board of directors of O&S called in O&S Extraordinary Shareholders Meeting and O&S Ordinary Shareholders Meeting pursuant to the notice of meeting attached hereto as Schedule I(a).

 

J. On 20 June 2014 IPEF filed with PM the list of candidate directors attached hereto as Schedule J in respect of the renewal of the board of directors of PM.

 

K. On the date hereof (the “Signing Date”) the following actions took place:

 

  (a) PM and O&S executed with the Banks (as defined below) the debt restructuring agreement under article 182bis of the IBL (as defined below) attached hereto as Schedule K (a) (the “Banks Restructuring Agreement”);

 

  (b) IPEF mandated the Fiduciary Company (as defined below) to manage its equity interests in PM by executing the fiduciary mandate attached hereto as Schedule K (b) (the “Fiduciary Mandate for the PM Shares”) ;

 

  (c) PM mandated the Fiduciary Company (as defined below) to manage its equity interests in Pilosio by executing the fiduciary mandate attached hereto as Schedule K (c) (the “Fiduciary Mandate for the Pilosio Shares”);

 

8

Exhibit 10.1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

  (d) Columna, PM and the escrow agent executed the escrow agreement attached hereto as Schedule K (d) (the “Escrow Agreement”);

 

  (e) PM and Columna, through its subsidiary Polo Holdings S.à.r.l., executed the share purchase agreement attached hereto as Schedule K (e) in connection with the transfer of 100% of the equity interest in Pilosio (the “Pilosio Transfer Agreement”) and Columna, through its subsidiary Polo Holdings S.à.r.l., paid Euro 1,000,000.00 (one million) into the Escrow (as defined below);

 

  (f) Manitex and the Senior Banks (as defined below) executed the agreements attached hereto as Schedule K (f) with respect to the transfer of certain debts owed by PM to the Senior Banks (the “Assignment Agreements of the PM Bank Debts”);

 

  (g) Manitex and BPER executed the put and call agreement attached hereto as Schedule K (g) with respect to a certain debt owed by PM to BPER (the “Put and Call Agreement”);

 

  (h) PM and the Senior Banks (as defined below) executed the agreement attached hereto as Schedule K (h) with respect to the transfer of certain debts owed by O&S to the Senior Banks (the “Assignment Agreements of the O&S Bank Debts”).

 

I. Upon and subject to the terms and conditions contained in this agreement (hereinafter the “Agreement”), Manitex is willing to subscribe for the Manitex Capital Increase (hereinafter the “Investment”).

NOW, THEREFORE, in consideration of the mutual covenants and undertakings set forth herein and in the schedules hereto, Manitex, Columna and IPEF agree as follows:

 

9

Exhibit 10.1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

ARTICLE 1

DEFINITIONS - INTERPRETATION

 

1.1 Definitions. Without prejudice to any other term and/or expression defined elsewhere in this Agreement, the following terms and expressions shall have, in this Agreement, the following meaning:

“182bis Filing” means the petition to be filed by PM with the bankruptcy court of Modena pursuant to article 182bis of the IBL that must incorporate (in addition to the documents set out in article 182bis of the IBL) the Banks Restructuring Agreement, the Restructuring Plan and an expert opinion meeting the requirements set out in article 182bis of the IBL.

“Action” means any action, litigation, lawsuit, arbitration, appeal, petition, proceeding, complaint, charge, dispute, allegation, claim, suit, demand, mediation, hearing, investigation or similar proceeding by or before any Governmental Authority or inquiry or investigation by any Governmental Authority.

“Affiliate” means, with respect to a party, any Person which, directly or indirectly, controls, is controlled by, or is under common control with, such party.

“Agreement” means this investment agreement by and between IPEF and Columna on one side and Manitex on the other side, including its recitals and Schedules, as it may be amended in writing from time to time.

“Assignment Agreements of O&S Bank Debts” has the meaning ascribed to it in Recital K (h).

“Assignment Agreements of the PM Bank Debts” has the meaning ascribed to it in Recital K (f).

“Banks” means collectively the Senior Banks and the Junior Banks.

“Banks Restructuring Agreement” has the meaning ascribed to it in Recital K (a).

 

10

Exhibit 10.1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

“BPER” means Banca Popolare dell’Emilia Romagna s.c.a.r.l.

“BPER Subordinated Debt” means a portion of the senior debt owed by PM to BPER equal on the Signing Date to a principal amount of Euro 5,000,000.00 that will be restructured under the Banks Restructuring Agreement.

“Business Day” means any day in which the banks are normally open for business in Milan (Italy) and in Illinois (U.S.A.).

“Capital Increases” has the meaning set out in Recital F.2).

“Civil Code” means the Italian civil code, as approved by the Royal Decree dated 16 March 1942, No. 262, as subsequently amended.

“Closing” means the subscription for the Manitex Capital Increase and concurrent payment of the relevant capital contributions by Manitex at the terms set out in Article 4.

“control”, “controlled” or “controlling” the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities or similar ownership interests, by contract or otherwise.

“Date of Closing” means the day on which the Closing shall take place which shall be any day agreed between the Parties and PM falling between the 1st and the 5th day after the Banks Restructuring Agreement becomes effective.

“Designated Person” means the Person designated by Manitex to carry out the Investment pursuant to Article 4.4.

“Encumbrance” means any mortgage, lien, pledge, charge, encumbrance, charge, other security interest (or an agreement or commitment to create any of them), legal proceeding (such as seizure), easement, license, option, claim, other rights in-rem, including option rights, pre-emption rights, rights of first refusal or veto rights, rights under forward or preliminary sales, restriction on title, transfer or exercise of any other attribute of ownership, or other restriction or limitation of any kind whatsoever.

 

11

Exhibit 10.1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

“Escrow” means the escrow structure to be set up by Columna pursuant to the Escrow Agreement.

“Escrow Agreement” has the meaning ascribed to it in Recital K (d).

“Fiduciary Company” means EOS Servizi Fiduciari s.p.a. with registered office at Via Montebello 39, Milan (Italy).

“Fiduciary Mandate For The Pilosio Shares” has the meaning ascribed to it in Recital K (c).

“Fiduciary Mandate For The PM Shares” has the meaning ascribed to it in Recital K (b).

“Final Confirmation” means the becoming final and no longer appealable of the decree of the bankruptcy court of Modena confirming the Banks Restructuring Agreement (esecutività del decreto di omologazione).

“Final Confirmation Date” means the date on which the decree of the bankruptcy court of Modena confirming the 182bis Agreement becomes final and no longer appealable (data di esecutività del decreto di omologazione).

“Governmental Approvals” means any approval, authorization, consent, order, license, permit, certification qualification, exemption, registration, designation, declaration, filing, waiver or other authorization, issued, granted, given or otherwise made available by or under the authority of any Governmental Authority.

“Governmental Authority” means any government, state or political subdivision thereof, national or supranational body, court, tribunal or any person or body exercising executive, legislative, judicial, regulatory or administrative functions on behalf of any of them and includes all relevant securities commissions, stock exchange authorities, foreign exchange authorities, foreign investment authorities and similar entities or authorities.

 

12

Exhibit 10.1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

“IBL” means the Italian bankruptcy law set out in the Royal Decree n. 267 of 16 March 1942 as subsequently amended.

“Indemnification” has the meaning set out in Article 8.1.

“Investment” means the investment of Manitex in PM pursuant to Article 4.

“Junior Banks” means collectively Banca Nazionale del Lavoro s.p.a., Unipol Banca s.p.a., Banca Monte dei Paschi di Siena and Cassa di Risparmio in Bologna.

“Law” means any constitution, law, legislation, treaty, statute, ordinance, code, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any Governmental Authority having competent jurisdiction.

“Loss” means collectively any costs, losses, damages, liabilities, diminution in value, charges, actions, proceedings, claims, demands, fines, interest, penalties, costs and expenses including reasonable professional fees and out-of-pocket costs of investigation, litigation, settlement and judgement.

“Manitex Capital Increase” has the meaning set out in Recital F.2(ii).

“New Shares” means the shares of PM to be newly issued in the context of the Shareholders Capital Increase or the Manitex Capital Increase, as the case may be.

“O&S” means Oil&Steel s.p.a. with registered office at 22 Via Verdi, San Cesario sul Panaro (MO).

“O&S Capital Increase” means the capital increase at O&S pursuant to Recital G.2(i).

“O&S Bank Debts” means the following senior debts of O&S: (i) the debts owed by O&S to Unicredit equal to Euro 3,120,500.00 (three million one hundred twenty hundred five hundred); (ii) the debts owed by O&S to BPER equal to Euro 3,120,500.00 (three million one hundred twenty hundred five hundred).

 

13

Exhibit 10.1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

“O&S Extraordinary Shareholders’ Meeting” means the extraordinary shareholders meeting of O&S to be held pursuant to Recital G.2.

“O&S Ordinary Shareholders’ Meeting” means the ordinary shareholders meeting of O&S called in pursuant to Recital G.1.

“O&S Pledge” means the pledge executed by and between the Senior Banks and the Company to secure the senior debts owed by PM, O&S and Pilosio to the Senior Banks.

“Option Right” means collectively the right of option to subscribe for shares newly issued in the context of a capital increase and the pre-emption right on those of such newly issued shares which shareholders have not subscribed for pursuant to article 2441, paragraph 3, of the Italian Civil Code.

“Order” means any judgment, award, decree, ruling or any other order of any Governmental Authority.

“Organizational Documents” means the articles of incorporation, by-laws, regulations concerning the board resolutions, corporate registry and other similar documents, instruments or certificates executed, adopted or filed in connection with the creation, formation or organization of a Person, including any amendments thereto.

“Party” or “Parties” means IPEF, Columna or Manitex or all of them, as the context may require.

“Person” means any individual, company, firm, general or limited partnership, general partnership between individual persons, joint venture, corporation, proprietorship, association, trust, governmental body, agency or institution of a government, or any other organization or entity, public or private.

“Pilosio” means Pilosio s.p.a. with registered office at Via Fermi 45, Tavagnacco (UD).

 

14

Exhibit 10.1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

“Pilosio Transfer Agreement” has the meaning ascribed to it in Recital K (e).

“PM” means PM Group s.p.a. with registered office at Via Verdi 22, San Cesario sul Panaro (Modena) (Italy).

“PM’s Extraordinary Shareholders’ Meeting” has the meaning ascribed to it in Recital F.2). PM’s Extraordinary Shareholders’ Meeting will become effective subject to, and on the date of Final Confirmation.

“PM’s Ordinary Shareholders’ Meeting” means the ordinary shareholders’ meeting of PM called in pursuant to Recital F.1).

“PM Pledge” means the pledge executed by and between the Senior Banks and the then shareholders of PM to secure the senior debts owed by PM, O&S and Pilosio to the Senior Banks.

“PM’s Restructuring” means the restructuring of PM by way collectively of the Investment and the debt restructuring set out in the Banks Restructuring Agreement.

“Previous Restructuring Proceedings” means the recovery plan under article 67, paragraph 3.d) of the IBL approved by PM and O&S in November 2010 and the restructuring proceedings under article 182bis of the IBL filed by PM and O&S in May 2012.

“Put and Call Agreement” has the meaning ascribed to it in Recital K (g).

“Representatives” means shareholders, directors, executives, representatives, members, agents, employees or advisors.

“Restructuring Plan” means the restructuring plan of PM and O&S attached hereto as Schedule 1.1.

“Senior Banks” means collectively BPER and Unicredit.

 

15

Exhibit 10.1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

“Signing” means the signing of this Agreement and the simultaneous signing of the agreements and completion of the actions set out in Recital K.

“Signing Date” means the date of Signing.

“Shareholders” means the shareholders of PM as per Recital D.

“Shareholders Capital Increase” has the meaning set out in Recital F.2(i).

 

1.2 Interpretation. In this Agreement, unless the context otherwise requires:

 

  (i) words denoting the singular shall include the plural and vice versa, words denoting any gender shall include all genders and words denoting any person shall include bodies corporate, unincorporated, associations, partnerships and individuals;

 

  (ii) references to a recital, an Article, a Paragraph of or a Schedule to, are to a recital of, an Article of, a Paragraph of, or a Schedule to, this Agreement, and references to this Agreement include its recitals and its Schedules;

 

  (iii) the headings of an Article or a Schedule of this Agreement are indicated for clarification purposes only and, consequently, they do not form an integral part of this Agreement and may not be used for purposes of interpretation;

 

  (iv) the word “including” or any variation thereof means “including, without limitation” and shall not be construed to limit any general statement to any specific or similar items or matters immediately following it;

 

  (v) the words “procure” and “cause” include the obligation to deliver the performance of a third party pursuant to article 1381 of the Civil Code save for the case where such words follow the expression “use its best efforts to”;

 

  (vi) the words “herein”, “hereof” and “hereunder” and similar words shall be construed to refer to this Agreement (including the Schedules thereto) in its entirety and not to any part thereof, unless the context otherwise requires;

 

  (vii) the division of this Agreement into Articles and/or paragraphs and other subdivisions and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement;

 

16

Exhibit 10.1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

  (viii) where in this Agreement an Italian term is given in italics or in italics and in brackets after an English term and there is any inconsistency between the Italian and the English terms, the meaning of the Italian term shall prevail;

 

  (ix) any reference in this Agreement to a “day” or number of “days” (without the explicit qualification of Business Day(s)) shall be interpreted as a reference to a calendar day or number of calendar days. Unless otherwise expressly indicated, any period of time expressed in days or months shall be calculated under Article 2963 (Computo dei termini di prescrizione) of the Civil Code.

 

1.3 No Adverse Construction against Drafter. The language throughout this Agreement shall in all cases be construed as a whole according to its fair meaning and without implying a presumption that the terms hereof shall be more strictly construed against one Party as opposed to another by reason of the rule that a document is to be construed more strictly against the Party who has prepared the same, it being acknowledged that representatives of all Parties have participated in the drafting and negotiation of this Agreement.

ARTICLE 2

OBLIGATIONS OF IPEF IN RESPECT OF THE CAPITAL INCREASES AND THE O&S CAPITAL INCREASE

 

2.1 Capital Increases. Upon the terms and subject to the conditions set forth in this Agreement, IPEF hereby commits to cause the Fiduciary Company to participate to PM’s Extraordinary Shareholders’ Meeting in second call (and not in first call), directly or by proxy, and in the context of such meeting to cast its vote in favour of the Capital Increases.

 

2.2 Waiver of Option Right. Following approval of the Capital Increases and in the context of PM’s Extraordinary Shareholders’ Meeting, IPEF commits to cause the Fiduciary Company to waive the Option Right on the New Shares by expressing such waiver in writing within the deadlines set for the exercise of the Option Right under the PM’s Extraordinary Shareholders’ Meeting.

 

17

Exhibit 10.1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

2.3 Waiver of any Shareholder’s right. IPEF hereby acknowledges and represents that the waiver of the Option Rights on the New Shares will imply the waiver of its capacity as shareholder of PM and of any right coupled with such capacity, including any action, course of action, and objection anyhow connected with such capacity and/or with the subscription for the New Shares by Manitex in the context of the Manitex Capital Increase.

 

2.4 O&S Capital Increase. Upon the terms and subject to the conditions set forth in this Agreement, IPEF hereby commits to use its best efforts to cause PM to participate to O&S’s Extraordinary Shareholders Meeting in second call (and not in first call), directly or by proxy, and in the context of such meeting cast its vote in favour of O&S Capital Increase.

ARTICLE 3

FURTHER OBLIGATIONS OF IPEF PRIOR TO CLOSING

 

3.1 Ordinary shareholders’ meetings. Before the Date of Closing, IPEF shall:

 

  (i) mandate the Fiduciary Company to participate to PM’s Ordinary Shareholders Meeting in second call (and not in first call), directly or by proxy, and in the context of such meeting cast its vote as follows:

 

  (a) in favour of the approval (without changes) of the financial statements attached hereto as Schedule F(b);

 

  (b) in favour of the appointment of the current directors and statutory auditors (sindaci) for a period of 1 (one) year ending upon approval of the financial statements as at 31 December 2014;

 

  (c) in favour of the appointment of Mr. Giuliano Asperti as chairman of the board of directors for the same period set out under paragraph (b) above;

 

18

Exhibit 10.1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

  (d) in favour of the payment to the directors so elected of the following annual fees: Euro 150,000.00 to the Chairman due on a monthly basis in installments of Euro 12,500.00 each, Euro 20,000.00 to Mr. Luigi Fucili due on a monthly basis in installments of Euro 1,666.00 each and Euro 300,00 to each of the other directors for each board meeting at which they participate;

 

  (e) in favour of the confirmation of the current auditing company for the fiscal years 2014-2017;

 

  (ii) use its best effort to cause PM to participate in second call (and not in first call), directly or by proxy, to the O&S Ordinary Shareholders’ Meeting and in the context of such meeting cast its vote as follows:

 

  (a) in favour of the approval (without changes) of the financial statements attached hereto as Schedule G(b);

 

  (b) in favour of the confirmation of the current auditing company for the fiscal years 2014-2017;

 

  (iii) use its best efforts to procure that the directors and possibly the statutory auditors (sindaci) of PM and O&S hand in their written resignations by virtue of a letter executed substantially in the form attached hereto as Schedule 3.1;

 

  (iv) use its best efforts to procure that the board of directors of PM convenes an ordinary shareholders meeting of PM to be held on the Date of Closing for the purposes of electing new directors and possibly statutory auditors (sindaci) in lieu of the ones in office as a consequence of their resignations under paragraph (iii) above;

 

  (v) mandate the Fiduciary Company to timely file with PM the list of candidate directors and possibly statutory auditors (sindaci) put forward for election in the ordinary shareholders meeting under paragraph (iv) above, such list to be prepared in accordance with the instructions to be timely given in writing by Manitex to IPEF.

 

3.2 182bis Filing. Before the Date of Closing, IPEF shall also use its best efforts to procure that PM makes the 182bis Filing as soon as possible following the Signing Date.

 

19

Exhibit 10.1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

3.3 Pilosio Transfer. Before the Date of Closing and upon satisfaction of the conditions precedent set out in the Pilosio Transfer Agreement, Columna shall cause its subsidiary Polo Holdings S.à.r.l. to purchase from PM the equity interests in Pilosio and shall cause the relevant price to be paid out of the Escrow.

ARTICLE 4

CLOSING

 

4.1 Closing. Subject to the discharge by IPEF and Columna of the obligations set forth in Articles 2 and 3 and the satisfaction or waiver in writing of the conditions precedent set out in Article 10, Closing shall take place on the Date of Closing at such place and/or time which will be mutually agreed upon by the Parties and PM.

 

4.2 Closing actions. At Closing, each Party shall do or procure the performance of all actions necessary in order to consummate the transactions contemplated by this Agreement as follows:

 

  (a) Manitex shall subscribe for the Manitex Capital Increase and concurrently pay-in the relevant capital contribution as to Euro 12,000,000 (twelve million) in cash and as to the remaining Euro 32,500,000 (thirty two million five hundred thousand) by off-setting the relevant debt against the PM debts purchased under the Assignment Agreement of the PM Bank Debt;

 

  (b) IPEF shall use its best efforts to procure that PM’s directors register Manitex, or the Designated Person, as shareholder of PM in the shareholders register and deliver to Manitex or the Designated Person a copy of such registration as well as of the registration of the New Shares in the name of Manitex or the Designated Person by the centralized securities management agency (Monte Titoli) and the registration of the PM Pledge on the New Shares in the form requested by the Senior Banks;

 

20

Exhibit 10.1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

  (c) unless Manitex is entitled to participate to the ordinary shareholders meeting of PM called in pursuant to Article 3.1 (iv) as new shareholders of PM, IPEF shall participate and, in the event it is not entitled to, shall mandate the Fiduciary Company to participate to such shareholders meeting of PM and cast its vote in favour of the appointment of the directors and possibly the statutory auditors set out in the list filed with PM pursuant to Article 3.1 (v) or, failing such list, in accordance with the instructions of Manitex;

 

  (d) the Parties shall carry out any additional formality and execute any further document that will be required under applicable Laws to execute the Investment;

 

  (e) IPEF shall procure that Pilosio pays to PM the debts owed by Pilosio and O&S to PM net of any set-off against debts owed by PM and O&S to Pilosio.

 

4.3 Acquisition of Title. Upon completion of Closing, Manitex will acquire title to the New Shares together with all rights coupled therewith starting from the Date of Closing.

 

4.4 Right to Designate. Manitex shall have the right to designate a Person to become a party to this Agreement and to subscribe and pay for the New Shares in accordance with the terms hereof (the “Designated Person”), provided that such designation is made in compliance with the following provisions:

 

  a. anything in any applicable provisions of law to the contrary notwithstanding, such designation will be sufficiently made if notified in writing to IPEF together with the written acceptance of the Person so designated;

 

  b. such designation shall be notified to IPEF not later than 3 (three) Business Days prior to the Date of Closing;

 

  c. the Designated Person will be an Affiliate of Manitex incorporated in Europe or the United Kingdom;

 

  d. Manitex will be jointly liable with the Designated Person for the correct execution of the transactions contemplated in this Agreement and such joint liability will be confirmed in the notice under paragraph (b) above.

 

21

Exhibit 10.1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

4.5 Timing and effectiveness. All of the actions, executions, productions, remittances and deliveries under Article 4.2 provided to be taken and made at Closing shall take place simultaneously, meaning that no action, execution, production, remittance and delivery shall be effective unless all other actions, executions, productions, remittances and deliveries shall be fully and regularly performed.

ARTICLE 5

REPRESENTATIONS AND WARRANTIES BY IPEF

 

5.1 Representations and warranties by IPEF. Subject to the provisions of Section 5.2, IPEF makes to Manitex the following representations and warranties, and acknowledges that they are correct and true as at the date of execution of this Agreement and that they shall be correct and true as at the Closing.

 

  (a) Power and authorizations; Governmental Approvals; third party consent

 

  (i) IPEF has full power and authority to execute and deliver this Agreement and each other document or instrument delivered in connection herewith and to perform its obligations under this Agreement and each other document or instrument delivered in connection herewith and consummate the transactions contemplated hereby.

 

  (ii) This Agreement and any other document or instrument delivered in connection herewith constitute a legally valid and binding obligation for IPEF. Neither the execution or the delivery of this Agreement nor the consummation of the transactions contemplated hereby will result in violation of: (i) any law provision or the by-laws of IPEF or any resolution taken by the competent corporate bodies of IPEF; (ii) any judgement, decree, injunction or arbitration award rendered or delivered by any Governmental Authority or arbitrator having jurisdiction or competence upon IPEF.

 

  (iii) No Governmental Approval is required to be obtained by IPEF under the relevant Law in connection with the execution, delivery and performance of this Agreement at or prior to the Closing Date.

 

22

Exhibit 10.1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

  (b) Stock capital of PM and O&S

 

  (i) IPEF is the legal and beneficial owner of no. 77,669,404 shares in PM representing 76.66% of the issued and authorized share capital of PM. Such shares are subject to the PM Pledge.

 

  (ii) The shares of O&S are subject to the O&S Pledge.

 

  (iii) There is no agreement or undertaking pursuant to which any Person is or could become entitled to request the issue of new shares by PM or O&S and/or the transfer of any of the issued and authorized shares.

 

  (iv) PM and O&S have neither issued: (A) any options (other than the officers and directors incentive plan agreed with the Senior Banks in the context of the 2012 restructuring), warrants, conversion privileges or rights, purchase rights, subscription rights, exchange rights or other contracts or commitments which could require PM and O&S to issue or sell any of its capital stock, (B) any convertible or exchangeable securities against shares, or (C) any other securities which could give rise to a capital increase, nor has it issued any securities granting the right to any amount which PM and O&S might distribute, or the voting rights in the general meetings of PM and O&S or which could result in any limitation of the rights attached to the issued shares.

 

  (c) Incorporation and existence of PM and O&S

 

  (i) PM and O&S are duly incorporated, organized and validly existing under the Laws and have full corporate power and all necessary Governmental Approvals to carry on their business as currently conducted and to own, lease and operate the assets and properties used in connection therewith, and no of them has violated any terms of such Governmental Approvals.

 

  (ii) PM and O&S have not been subject to any insolvency or bankruptcy or recovery process whatsoever other than the Previous Restructuring Proceedings and no such process is pending. On the Date of Signing PM and O&S have a negative equity relevant for the purposes of article 2447 of the Italian Civil Code.

 

23

Exhibit 10.1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

  (iii) Copies of the current by-laws of PM and O&S are attached as Schedule 5.1 (c) (iii), which copies are true and complete.

 

5.2 Exclusion of further representations or warranties. It is expressly specified and agreed upon by the Parties that the representations and warranties set forth in Section 5.1 are the sole representations and warranties given by IPEF to Manitex in connection with the Investment contemplated in this Agreement, with express exclusion of any other implicit representation and warranty.

ARTICLE 6

REPRESENTATIONS AND WARRANTIES BY MANITEX

 

6.1 Representations or warranties by Manitex. Subject to the provisions of Section 6.2, Manitex makes to IPEF the following representations and warranties, and acknowledges that they are correct and true as at the date of execution of this Agreement and that they shall be correct and true as at Closing.

 

(a) Corporate power and authorizations

 

  (i) Manitex has full corporate power and authority to execute and deliver this Agreement and each other document or instrument delivered in connection herewith and to consummate the transactions contemplated hereby.

 

  (ii) This Agreement constitutes a legally valid and binding obligation for Manitex, and the entry into this Agreement and/or the performance by Manitex of its obligations hereunder has been duly authorized by means of all corporate actions taken by the competent corporate bodies of Manitex. No consent, approval, authorisation, declaration or communication to or from whatsoever public authority or other entity is required to be obtained or performed by Manitex in connection with the entering into this Agreement and/or the performance of any obligation hereunder for the Investment.

 

24

Exhibit 10.1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

(b) Violations

Neither the execution or the delivery of this Agreement nor the consummation of the transactions contemplated hereby will result in violation of:

 

  (i) any law provision or the by-laws of Manitex or any resolution taken by the competent corporate bodies of Manitex;

 

  (ii) any judgement, decree, injunction or arbitration award rendered or delivered by any Governmental Authority or arbitrator having jurisdiction or competence upon Manitex.

 

6.2 Exclusion of further representations or warranties. It is expressly specified and agreed upon by the Parties that the representations and warranties set forth in Section 6.1 are the sole representations and warranties given by Manitex to IPEF in connection with the Investment contemplated in this Agreement, with express exclusion of any other implicit representation and warranty.

ARTICLE 7

COVENANTS

 

7.1 General. During the period between the date hereof and the Date of Closing, each Party will use its reasonable best efforts to take all actions and do all things necessary, proper or advisable to consummate, make effective, and comply with all of the terms of this Agreement and the transactions contemplated hereunder. Each Party shall cooperate with each other and use commercially reasonable efforts to satisfy all of the Closing conditions in an expeditious manner.

 

7.2 Access to information. From the date hereof until Closing, IPEF shall permit and use its reasonable best efforts to cause PM and O&S to permit, Manitex, its Affiliates and/or their Representatives to have access at all reasonable times, to a reasonable extent, and in a manner so as not to interfere with the normal business operations of PM and O&S, to their premises, properties, management, employees, personnel, systems, stored data and other information, books, records, contracts and documents Manitex may reasonably request.

 

25

Exhibit 10.1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

7.3 Conduct of IPEF prior to Closing. From and after the date hereof, and until completion of Closing, unless otherwise contemplated by this Agreement or approved in writing by Manitex, IPEF shall not take any action that would require a resolution of the shareholders meeting of PM (except for the resolutions to be approved by IPEF in the context of the PM Extraordinary Shareholders’ Meeting and the PM Ordinary Shareholders’ Meeting pursuant to Articles 2, 3 and 4.2(c) above) or that may prejudice or affect the consummation of the Investment, including by way of example approving any resolutions of the shareholders meeting of PM providing for:

 

  (a) the issuance of new shares other than in the context of the Capital Increases, the issuance of convertible bonds, bonds with warrants or any other securities convertible into or exercisable for any shares of capital stock of PM, any rights, warrants, options, calls or commitments to acquire or related to any shares of capital stock or other equity interests with respect to PM, any awards under any bonus, incentive or other compensation plan or arrangement which would result in the right to receive shares or other equity interests of PM (including the grant of stock options, stock appreciation rights or other stock related awards) or modifies or amends any right of any holder of outstanding shares of capital stock of, or any options with respect to PM;

 

  (b) any extra-ordinary corporate transaction of PM such as mergers, demergers, spin-offs, disposals of equity interest or businesses other than in accordance with the Restructuring Plan;

 

  (c) any bonus, award, benefit or other compensation plan or arrangement to any director or officer of PM different from the directors’ fees set out in Article 3.1 (i) (d) above or any increase or variation of whatever nature of such fees;

 

  (d) the change of the Organizational Documents of PM, save for those necessary to comply with any mandatory provision of law or to allow the consummation of the Investment.

 

26

Exhibit 10.1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

7.4 Conduct of business prior to the Closing. From and after the date hereof, and until completion of Closing, unless otherwise contemplated by this Agreement or approved in writing by Manitex, IPEF shall use its reasonable best efforts to cause PM and O&S to conduct the respective businesses in the ordinary course of business, consistent with past practice.

Without limiting the generality of the foregoing, during the period between the date hereof and the occurrence of Closing, and unless otherwise contemplated by this Agreement or approved in writing by Manitex, which consent shall not be unreasonably withheld or delayed, IPEF shall use its reasonable best efforts to procure that nor PM or O&S:

 

  (a) issues, sells, pledges, transfers, grants, otherwise disposes of or encumbers any shares of capital stock or other equity interests of PM and O&S, convertible bonds, bonds with warrants or any other securities convertible into or exercisable for any shares of capital stock of PM and O&S or equity interests, any rights, warrants, options, calls or commitments to acquire or related to any shares of capital stock or other equity interests with respect to PM and O&S, any awards under any bonus, incentive or other compensation plan or arrangement which would result in the right to receive shares or other equity interests of PM and O&S (including the grant of stock options, stock appreciation rights or other stock related awards) or modifies or amends any right of any holder of outstanding shares of capital stock of, or any options with respect to PM and O&S;

 

  (b) takes any action that would require a resolution of the shareholders meeting of PM and O&S, except for those resolutions that may be required to effectuate and carry out the terms and conditions of this Agreement;

 

  (c) borrows from financial institutions, issues any debt securities or otherwise incurs any indebtedness or guarantees any indebtedness, assumes guarantee or endorses of any obligations of any other Person other than as set forth in the Banks Restructuring Agreement;

 

27

Exhibit 10.1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

  (d) merges or consolidates or agrees to merge or consolidate with any Person or takes any action with respect to any recapitalization, restructuring reorganization, liquidation or dissolution of PM and O&S other than the actions laid out in the Banks Restructuring Agreement;

 

  (e) sells, transfers, leases, mortgages, encumbers, licenses or otherwise disposes of assets (other than the equity interest in Pilosio under the Pilosio Transfer Agreement), properties or businesses in any transaction or series of related transactions; incur, create or assume any Encumbrance on any of the assets or properties of any company of PM and O&S other than as permitted under the Banks Restructuring Agreement;

 

  (f) changes the Organizational Documents of PM and O&S, save for those necessary to comply with any mandatory provision of law;

 

  (g) changes the normal level of inventories or supplies, or alter its practice or policy in collection of accounts receivable or payment of accounts payable, other than in the ordinary course of business;

 

  (h) assumes or enters into or renegotiates or renews any collective bargaining agreement, contract or other agreement or understanding with a labor union or labor organization at, or any employee, of PM and O&S;

 

  (i) makes any loans, advances or capital contributions to, or investments in, any other Person;

 

  (j) settles any pending or threatened claims, actions, arbitrations, disputes or other proceedings;

 

  (k) makes any capital expenditure in excess of the amounts set out in the Restructuring Plan with respect to the relevant timeframe;

 

  (l) acquires (by merger, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division or business unit or material asset thereof or any equity interest therein;

 

28

Exhibit 10.1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

  (m) enters into or effectuates any transaction with its Affiliate or any other related person other than in the ordinary course of business and on arm’s length terms and/or makes any payment to its Affiliates other than pursuant to agreements executed before or after the Date of Signing on arm’s length terms, in the ordinary course of business and consistently with past practice;

 

  (n) (A) makes any change in the terms and conditions of employment of any director, officer or employee or (B) hires, employs or lays off directors, officers or employees, other than in the ordinary course of business; grants any increase in the compensation of their directors, officers and employees; pays or provides compensation or benefit to its directors, officers and employees other than in the ordinary course of business;

 

  (o) implements any change in accounting methods, principles, practices or procedures.

 

7.5 Notice of development. IPEF will give prompt written notice to Manitex of any material adverse development of which it becomes aware and which may cause a breach of any of the representations and warranties in Article 5.

ARTICLE 8

INDEMNIFICATION FOR BREACH BY IPEF OF

REPRESENTATIONS, WARRANTIES AND COVENANTS

 

8.1 Indemnification. Subject to the other terms and conditions of this Agreement, IPEF shall indemnify and hold Manitex, its Affiliates and their Representatives (collectively, the “Manitex Indemnified Parties”) harmless from and against any Loss suffered or incurred by any of the Manitex Indemnified Parties or PM and O&S arising out of or resulting from any breach of, inaccuracy in, non fulfillment of, or misrepresentation in any representation or warranty, undertaking, obligation, agreement or covenant of IPEF under this Agreement.

 

29

Exhibit 10.1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

The indemnification related to any Loss as per this Section 8.1 (hereinafter referred to as “Indemnification”) shall be calculated and paid as provided for in following Sections of this Article 8.

 

8.2 Limitation to the obligation to indemnify. The Parties agree that notwithstanding anything to the contrary herein, at law or in equity, the right to indemnification, reimbursement or other remedy based upon such representations, warranties, covenants and obligations shall not be affected by any investigation conducted with respect to, any knowledge or awareness acquired for (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Date of Closing, or any information (other than information Disclosed) furnished to Manitex, its Affiliates and their Representatives, with respect to the accuracy or inaccuracy of or compliance with any such representation, warranty, covenant or obligation. It is understood that in no event IPEF shall indemnify any Manitex Indemnified Party in case the directors and statutory auditors (sindaci) of PM and/or O&S eventually refuse to resign from their office and/or refuse to carry out any actions they are expected to carry out according to this Agreement.

 

8.3 Time limitations. In no event shall IPEF be liable to Manitex under this Article 8 in respect of any actual or alleged breach of any representations and warranties contained in this Agreement which is notified to IPEF later than 12 (twelve) months after the Date of Closing.

Any claim made pursuant to the provisions of this Article shall remain valid until the claimed Loss, if due, has been actually indemnified, notwithstanding the time limits set forth in this Article 8.3 are elapsed. For the sake of clarity, it is hereby understood and agreed that any indemnification obligation in respect of any Loss which constitutes the object of pending litigation under Article 14 hereof or of a pending judicial dispute or which has not been determined in the exact amount as at the date of expiration of the aforesaid time limits, shall also survive and remain in full force and effect until such time as the relevant proceedings have come to an end and IPEF, if so decided in the outcome of such proceedings, has paid and discharged such Indemnification in full. IPEF’s aggregate liability for or with respect to any inaccuracies in or breaches of any representation or warranty made by IPEF under Article 6 for all Indemnifications shall not exceed, in any event, an aggregate total amount of Euro 2.000.000 (two million).

 

30

Exhibit 10.1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

8.4 Handling of Claims - Procedure. Notices of claims under this Article 8 by any Manitex Indemnified Parties shall be given to IPEF. In case of claims for inaccuracy in or breach of representations and warranties, such notice shall be made within the relevant survival period pursuant to Section 8.3. Such notice of claim shall specify in reasonable detail the factual basis of the claim and a non-binding estimate of the amount of Losses which are, or are to be, the subject of the claim (including any Losses which are contingent on the occurrence of any future event). If Manitex Indemnified Parties fail to give notice required pursuant to this Section 8.4 within the relevant period specified in Section 8.3, the Manitex Indemnified Parties shall not be entitled to make the relevant claim under this Agreement.

ARTICLE 9

INDEMNIFICATION BY MANITEX

 

9.1 Manitex indemnification. Manitex shall indemnify and hold IPEF harmless from and against any Loss suffered or incurred by IPEF resulting from (i) a breach of any representation or warranty given by Manitex hereunder or (ii) a breach of any covenant undertaken by Manitex hereunder including Manitex’s failure to subscribe for the Manitex Capital Increase and concurrently pay-in the relevant capital contributions at the terms set out in Article 4 above, upon discharge of all the obligations set forth in Articles 2 and 3 and the satisfaction or waiver in writing of the conditions precedent set out in Article 10. Manitex’s aggregate liability for or with respect to any inaccuracies in or breaches of any representation or warranty made by Manitex under Article 6 for all Indemnifications shall not exceed, in any event, an aggregate total amount of Euro 2,000,000.00 (two million).

To this extent the claim handling procedure set forth in Article 8 shall apply mutatis mutandis.

 

31

Exhibit 10.1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

ARTICLE 10

CONDITIONS PRECEDENT TO CLOSING

 

10.1 Conditions precedent to the obligations of Manitex. The obligations of Manitex to consummate the transactions contemplated hereunder shall be subject to the satisfaction or waiver of the following conditions:

 

  (a) the court will have confirmed the Bank Restructuring Agreement pursuant to article 182bis of the IBL (omologazione dell’accordo di ristrutturazione dei debiti);

 

  (b) the board of directors of PM will have confirmed in writing to Manitex that the decision of the court confirming the Banks Restructuring Agreement pursuant to article 182bis of the IBL has not been timely challenged under article 182bis, paragraph 5, of the IBL or, alternatively, that any challenge have been rejected by the competent Court;

 

  (c) PM’s Extraordinary Shareholders’ Meeting will have approved the Capital Increases in accordance with the terms and conditions set out in Recital F;

 

  (d) the O&S Extraordinary Shareholders’ Meeting will have approved the O&S Capital Increase in accordance with the terms and conditions set out in Recital G.2;

 

  (e) the shareholders meeting of PM and O&S will have approved the respective financial statements as at 31 December 2013 with the same contents of the draft financial statements attached hereto as Schedule F(b) and Schedule G(b);

 

  (f) PM will have approved the audited consolidated financial statements of PM as at 31 December 2013 and the auditing company of PM will have released a clean opinion thereon save for possible qualifications on the going concern of PM;

 

  (g) the Shareholders Capital Increase shall not have been subscribed in full within the deadline set by the resolution of the PM’s Extraordinary Shareholders Meeting;

 

  (h) the auditing company of PM will have released a clean opinion on the consolidated financial statements of PM (excluding Pilosio and its subsidiaries), including (i) the statements of income, comprehensive income, cash flows and changes in equity for the three years ended respectively on 31 December 2011, 31 December 2012 and 31 December 2013 and (ii) the balance sheets for the two years ended on 31 December 2012 and 31 December 2013 (the “PM Group carve-out year-end consolidated financial statements”) except for possible qualifications in respect of PM’s going concern;

 

32

Exhibit 10.1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

  (i) the directors and possibly statutory auditors (sindaci) of PM and O&S will have handed in their resignations by virtue of a letter executed in the form attached hereto as Schedule 3.1;

 

  (j) the board of directors of PM and the board of directors of O&S will have convened the respective ordinary shareholders meeting on the Closing Date for the purpose of electing new directors and possibly statutory auditors (sindaci) in lieu of those leaving the office:

 

  (k) prior to or at the latest on the date of subscription by Manitex for the Manitex Capital Increase and subject to payment by Manitex of the consideration due pursuant to the Assignment Agreements of PM Banks Debts, PM will have cashed or will cash the purchase price for 100% of the shares in Pilosio set out in the Pilosio Transfer Agreement;

 

  (l) no order, injunction, judgment or decree issued by any governmental or judicial authority or other legal restraint or prohibition preventing the subscription for the Manitex Capital Increase will be in effect;

 

  (m) none of the following events, changes or circumstances shall have occurred prior to the Date of Closing:

 

  (i) a disruption in the financial, banking, lending, debt or capital markets or in securities settlement or clearance services in the United States preventing Manitex from subscribing and/or completing the Manitex Capital Increase;

 

  (ii) suspension or material limitation in trading in securities in general preventing Manitex from subscribing and/or completing the Manitex Capital Increase;

 

  (iii) a Material Adverse Effect (Effetto Pregiudizievole Significativo) as defined in the Banks Restructuring Agreement, unless cured by the Date of Closing;

 

33

Exhibit 10.1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

  (n) prior to the subscription by Manitex for the Manitex Capital Increase and subject to payment by Manitex of the consideration due pursuant to the Assignment Agreements of PM Banks Debts, the Pilosio Transfer Agreement shall have become effective (i.e. the Pilosio’s shares shall have been transferred to Polo Holdings S.à.r.l., the subsidiary of Columna, thereunder);

 

  (o) prior to the subscription by Manitex for the Manitex Capital Increase and subject to payment by Manitex of the consideration due thereunder, the Assignment Agreements of the PM Bank Debts and the Assignment Agreements of O&S Bank Debts shall have become effective.

 

10.2 Waiver. Manitex may at any time waive in whole or in part and conditionally or unconditionally the conditions set out in Section 10.1 by notice in writing to IPEF and Columna.

 

10.3 Deadline. Should the conditions precedent under Section 10.1 not be all satisfied or waived by 31 January 2015, this Agreement shall be definitively with no effect.

ARTICLE 11

TERMINATION

 

11.1 Termination. This Agreement may be terminated by written notice to the other Parties at any time prior to the Date of Closing:

 

  (a) by the written agreement of Manitex and IPEF;

 

  (b) by Manitex, if IPEF shall have breached, in any material respect, any of its representations, warranties, covenants or other obligations under this Agreement and such breach shall be incapable of cure or has not been cured within 10 (ten) Business Days following the giving of written notice of such breach to IPEF;

 

34

Exhibit 10.1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

  (c) by IPEF, if Manitex shall have breached, in any material respect, any of its representations, warranties, covenants or other obligations under this Agreement and such breach shall be incapable of cure or has not been cured within 10 (ten) Business Days following the giving of written notice of such breach to Manitex;

 

  (d) by Manitex, if any of the conditions in Section 10.1 is or becomes incapable of being satisfied and Manitex has not waived such condition, and the non-satisfaction is not due to a failure by Manitex to fulfill its obligations under this Agreement.

 

11.2 Effect of Termination. If this Agreement is terminated pursuant to Article 11.1, this Agreement shall become void and of no effect without liability of any Party (or its Affiliates or any of its Representatives) to the other Party; provided, however, that nothing herein shall relieve any Party from liability for any breach hereof prior to such termination.

ARTICLE 12

ANNOUNCEMENTS AND CONFIDENTIALITY

 

12.1 Press release and announcement. No publicity, release of announcement to the public concerning the existence, negotiation, execution or delivery of this Agreement, or any of the provisions contained herein, or the transactions contemplated hereby or any matter ancillary thereto shall be made by any Party prior to, or on, or after the Date of Closing, without the prior written consent of the other Party, as to both form and contents, which consent and approval shall not be unreasonably withheld; provided, however, that nothing herein shall prevent Manitex from making any announcement or filing mandatorily required by Laws or by the rules and regulations of any stock exchange or other regulatory body having jurisdiction on Manitex.

 

12.2 Confidentiality. Each Party shall maintain in confidence, and shall cause its Representatives to maintain in confidence, any written, oral, or other information obtained in confidence from the other Party or PM and O&S in connection with this Agreement or the transactions contemplated hereunder.

 

35

Exhibit 10.1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

The above restrictions shall not apply to the disclosure of any of the aforesaid information by a Party, if (a) such disclosure or the furnishing or use of such information is required by any applicable Law (including, for the avoidance of doubt, rules or regulations issued by a relevant stock exchange applicable to a Party), (b) such disclosure or the furnishing or use of such information is required pursuant to this Agreement, (c) such information is already known to such Party or to others not bound by a duty of confidentiality or such information becomes publicly available through no fault of such Party, or (d) the use of such information is necessary or appropriate in making any filing or obtaining any Governmental Approvals required for the consummation of the transactions contemplated hereunder.

ARTICLE 13

MISCELLANEOUS

 

13.1 Joint liability of Columna. Columna hereby agrees pursuant to article 1936 of the Civil Code to guarantee the discharge by IPEF of any and all obligations of IPEF under this Agreement and to be jointly liable with IPEF for the correct and timely performance of the transactions contemplated under this Agreement.

 

13.2 Taxes, costs and expenses. Manitex shall bear all the taxes, costs and expenses incurred in connection with this Agreement other than the fees due by Columna to its legal and financial advisors, unless agreed otherwise between the Parties.

 

13.3 Amendment. No amendment to this Agreement shall be effective against any Party hereto unless made in writing and signed by such Party.

 

13.4 Failure and waiver. No failure to exercise or delay in exercising any right or remedy under this Agreement shall constitute a waiver thereof. No single or partial exercise of any right or remedy under this Agreement shall prevent any other or further exercise thereof or the exercise of any other right or remedy.

A waiver of any term, provision or condition of, or consent granted under, this Agreement shall be effective only if given in writing and signed by the waiving or consenting Party and only for the purpose for which it is given.

 

36

Exhibit 10.1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

13.5 Severability. The invalidity for any reason or the unenforceability of any provisions (or part thereof) of this Agreement shall not affect the validity, legality or enforceability of any other provisions of this Agreement (or part thereof); it being agreed and understood by the Parties that if any provision (or part thereof) is or at any time becomes to any extent invalid, illegal or unenforceable, the Parties shall negotiate to any possible legal extent and in good faith such replacement provisions or such changes to this Agreement as may be necessary to implement the transactions contemplated herein in the manner originally agreed.

 

13.6 Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and may not be assigned by IPEF, Columna or Manitex except for the right of Manitex under Article 4.4.

 

13.7 Notices and other communications. Unless otherwise provided for in any other provision of this Agreement, any notice, communication or other document required or permitted to be given under this Agreement shall be made in writing and in English and shall be deemed to have been duly and validly given: (a) in the case of notice sent by registered, certified or express mail or international courier, upon receipt of same, and (b) in the case of notice sent by telefax on the date and at the time of confirmation of dispatch; addressed, in all cases, as follows:

 

  (a) if to IPEF:

IPEF III HOLDINGS N.11 S.A. in liquidation

18, Rue de l’Eau

L – 1449 Lussemburgo

Grand Duchy of Luxembourg

fax +352 22 55 05 29

Attention Mr. Jean–Yves Nicolas

with copy to:

CMS Adonnino Ascoli & Casavola Scamoni

Via Agostino Depretis 86

00184 Rome

Telephone +39 06 47 8151

Fax +39 06 483755

Attention Mr. Paolo Bonolis

 

37

Exhibit 10.1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

  (b) if to Manitex to:

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455

Telephone: 001 (0) 708 237 2080

Fax: 001 708 430 1335

Attention: Messrs. David Lagevin and Andrew Rooke

with copy to:

Orrick Herrington & Sutcliffe

Corso Matteotti 10

20121 Milan

Telephone: 0039 02 45413800

Fax: 0039 02 45413801

Attention: Ms. Daniela Andreatta

 

  (c) if to Columna to:

Columna Holdings Limited

1 Royal Plaza, Royal Avenue,

St Peter Port, Guernsey GY1 2HL, The Channel Islands

Telefax: +44 (0) 1481 715219.

Attention of Mr. Andrew Carrè

with copy to:

CMS Adonnino Ascoli & Casavola Scamoni

Via Agostino Depretis 86

00184 Rome

Telephone +39 06 47 8151

Fax +39 06 483755

Attention Mr. Paolo Bonolis

 

38

Exhibit 10.1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

or to such other address, facsimile no. or to such other person as any Party shall have last designated by notice to the other Party in accordance with the provisions of this Section 13.6.

 

13.7 Language; Counterparts. This Agreement shall be executed in the English language. This Agreement may be executed in counterparts, each of which shall be deemed to constitute an original but all of which shall constitute one and the same instrument. Any facsimile copy of another Party’s executed counterpart of this Agreement (or its signature page thereof) shall be deemed to be an executed original thereof.

ARTICLE 14

GOVERNING LAW AND JURISDICTION

 

14.1 Governing law. This Agreement shall be governed by, and construed and interpreted in accordance with, the Laws of Italy.

 

14.2 Jurisdiction. The Courts of Milan shall have exclusive jurisdiction in respect of any dispute arising out of this Agreement.

*****

If you agree with this proposal, please return to us this letter duly signed by way of acceptance thereof.

Kind regards,

 

/s/ Andrew M. Rooke
Manitex International Inc.

 

39

IPEF III Holdings n° 11 S.A.

18 rue de l’Eau

L-1449 Luxembourg

Messrs.

Manitex International Inc.

9725 Industrial Drive,

Bridgeview, Illinois, USA

Columna Holdings Limited

1 Royal Plaza

Royal Avenue

St Peter Port

Guernsey GY 2HL

Luxemburg, 21 July 2014

Dear Sirs,

RE: investment agreement in PM Group S.p.A.

we have received your proposal to execute an investment agreement, which we copy herein below:

“INVESTMENT AGREEMENT

by and between

Manitex International Inc., a company duly organized and validly existing under the laws of the State of Michigan (U.S.A.), with registered office at 9725 Industrial Drive, Bridgeview, Illinois, represented herein by Andrew Rooke, President and Chief Operating Officer duly authorized by virtue of the board of directors resolution of 10 July 2014 (hereinafter “Manitex”)

- on the one hand -

and

 

1

IPEF III Holdings n° 11 S.A.

18 rue de l’Eau

L-1449 Luxembourg

 

IPEF III Holdings n° 11 S.A., a company duly organized and validly existing under the laws of Luxembourg, with registered office at 18 Rue de l’Eau, Luxembourg, Companies Registry number B 78607, Italian tax code 97398790150 represented herein by Emanuela Di Muzio by virtue of a special power of attorney granted in Luxembourg on 5 June 2014 before Notary Michael Martine Schaeffer (hereinafter “IPEF”)

and

Columna Holdings Limited, a limited liability company duly organized and validly existing under the laws of England, with registered office at 1 Royal Plaza, Royal Avenue, St Peter Port, Guernsey, represented herein by Emanuela Di Muzio by virtue of a special power of attorney granted in Guernsey on 25 June 2014 before Notary Michael Julian Riddiford (hereinafter “Columna”)

- on the other hand –

 

2

IPEF III Holdings n° 11 S.A.

18 rue de l’Eau

L-1449 Luxembourg

 

TABLE OF CONTENTS

RECITALS

ARTICLES:

 

ARTICLE 1 - DEFINITIONS - INTERPRETATION

      10   

ARTICLE 2 - OBLIGATIONS OF IPEF IN RESPECT OF THE CAPITAL INCREASES

      17   

ARTICLE 3 - FURTHER OBLIGATIONS OF IPEF PRIOR TO CLOSING

      18   

ARTICLE 4 - CLOSING

      20   

ARTICLE 5 - REPRESENTATIONS AND WARRANTIES BY IPEF

      22   

ARTICLE 6 - REPRESENTATIONS AND WARRANTIES BY MANITEX

      24   

ARTICLE 7 - COVENANTS

      25   

ARTICLE 8 - INDEMNIFICATION FOR BREACH OF IPEF

      29   

ARTICLE 9 - INDEMNIFICATION BY MANITEX

      31   

ARTICLE 10 - CONDITIONS PRECEDENT TO CLOSING

      32   

ARTICLE 11- TERMINATION

      34   

ARTICLE 12 - ANNOUNCEMENTS AND CONFIDENTIALITY

      35   

ARTICLE 13 - MISCELLANEOUS

      36   

ARTICLE 14 - GOVERNING LAW AND ARBITRATION

      39   

LIST OF THE SCHEDULES:

Schedule F(a) – resolution of the board of directors of PM of 10 June 2014

Schedule F(b) – draft financial statements of PM as at 31 December 2013

Schedule G(a) – resolution of the board of directors of O&S of 10 June 2014

Schedule G(b) – draft financial statements of O&S as at 31 December 2013

Schedule H(a) – notice of PM’s ordinary and extraordinary shareholders meeting of 30 June 2014

Schedule I(a) – notice of O&S’s ordinary and extraordinary shareholders meeting of 30 June 2014

Schedule J – list of candidate directors filed by IPEF on 20 June 2014

Schedule K(a) – execution copy of the Banks Restructuring Agreement

 

3

IPEF III Holdings n° 11 S.A.

18 rue de l’Eau

L-1449 Luxembourg

 

Schedule K(b) – execution copy of the Fiduciary Mandate for the PM Shares

Schedule K(c) – execution copy of the Fiduciary Mandate for the Pilosio Shares

Schedule K(d) – execution copy of the Escrow Agreement

Schedule K(e) – execution copy of the Pilosio Transfer Agreement

Schedule K(f) – execution copy of the Assignment Agreements of the PM Bank Debts

Schedule K(g) – execution copy of the Put and Call Agreement

Schedule K(h) – execution copy of the Assignment Agreements of the O&S Bank Debts

Schedule 1.1 – Restructuring Plan

Schedule 3.1 – Resignation letter of directors and possibly statutory auditors (sindaci)

Schedule 5.1(c)(iii) – by-laws of PM and O&S

 

4

IPEF III Holdings n° 11 S.A.

18 rue de l’Eau

L-1449 Luxembourg

 

RECITALS

 

A. IPEF is an investment vehicle fully owned by Columna;

 

B. PM Group s.p.a. is a company duly incorporated and validly organised under the laws of Italy, with registered office at 22 Via Verdi, San Cesario sul Panaro (MO), Italy, number of registration at the Register of Companies of Modena 334223, with a share capital of Euro 23,311,420.00, fully paid-in and divided into no. 101,312,500 ordinary shares with no nominal value (hereinafter referred to as “PM”);

 

C. PM owns 100% of the shares of the following companies:

 

  (i) Oil&Steel s.p.a, a company duly incorporated and validly organised under the laws of Italy, with registered office at 22 Via Verdi, San Cesario sul Panaro (MO), Italy, number of registration at the Register of Companies of Modena 02313650364 with a share capital of Euro 362,400.00 fully paid-in and divided in no. 362,400 ordinary shares, each having a par value of Euro 1.00 (hereinafter referred to as “O&S”);

 

  (ii) Pilosio s.p.a., a company duly incorporated and validly organised under the laws of Italy, with registered office at Via Fermi 45, Tavagnacco (UD), Italy, number of registration at the Register of Companies of Udine 251502 with a share capital of Euro 5,000,000.00 fully paid-in and divided into no. 5,000,000 ordinary shares, each having a par value of Euro 1.00 (hereinafter referred to as “Pilosio”);

 

D. the share capital of PM is currently held by the following shareholders (hereinafter the “Shareholders”), IPEF being the majority shareholder:

 

Shareholders

    No. Shares      Percentage of PM’s share
capital		  

IPEF

      77,669,404         76.66 % 

Felofin s.p.a.

      16,786,091         16.57 % 

BS Private Equity s.r.l.

      1,182,784         1.17 % 

Luigi Fucili

      1,083,555         1.07 % 

 

5

IPEF III Holdings n° 11 S.A.

18 rue de l’Eau

L-1449 Luxembourg

 

Andrea Antonino Certo

      993,260         0.98 % 

Paolo Balugani

      939,082         0.93 % 

Giuliano Asperti

      845,174         0.83 % 

Attilio Imi

      657,358         0.65 % 

Nicola Zago

      516,495         0.51 % 

Giancarlo Gaggioli

      361,185         0.36 % 

Fosco Celi

      187,816         0.19 % 

Giovanni Tacconi

      90,296         0.09 % 

 

E. PM and O&S are primarily engaged in the manufacturing and sale of truck mounted hydraulic cranes and aerial platforms.

 

F. On 10 June 2014 by virtue of the resolution attached hereto as Schedule F(a) the board of directors of PM approved the draft financial statements of PM as at 31 December 2013 attached hereto as Schedule F(b) and resolved to call in:

 

  1) the ordinary shareholders meeting of PM on 30 June 2014 in first call and on 30 July 2014 in second call to resolve on:

 

  (i). the approval of the financial statement of PM as at 31 December 2013; and

 

  (ii). the appointment of the new directors, including the President of the Board of Directors, and statutory auditors (sindaci) in lieu of the current directors and statutory auditors (sindaci) whose office will terminate by law upon approval of the financial statements under paragraph (i) above; and

 

  (iii). the appointment of the auditing company for the fiscal years 2014-2017 (hereinafter the “PM’s Ordinary Shareholders Meeting”)

and

 

  2) the extraordinary shareholders meeting of PM on 30 June 2014 in first call and 30 July 2014 in second call (hereinafter the “PM’s Extraordinary Shareholders’ Meeting”) to resolve on the following actions (hereinafter collectively the “Capital Increases”):

 

5

IPEF III Holdings n° 11 S.A.

18 rue de l’Eau

L-1449 Luxembourg

 

  (i) a capital increase for Euro 10,000,000.00 plus a share premium of Euro 7,927,316.00 and an equity contribution of Euro 26,572,684.00 to cover losses (equal to a total amount of Euro 44,500,000.00) – conditional upon full subscription thereof (inscindibile) and Final Confirmation (as defined below) – to be subscribed for by the Shareholders and paid-in in cash and/or by way of set-off of due claims of the Shareholders against PM (hereinafter the “Shareholders Capital Increase”);

and, in the event of failure of the Shareholders to subscribe in full for the Shareholders Capital Increase,

 

  (ii) a capital increase for 10,000,000.00 plus a share premium of Euro 7,927,316.00 and an equity contribution of Euro 26,572,684.00 to cover losses (equal to a total amount of Euro 44,500,000.00)—conditional upon full subscription thereof (inscindibile) and Final Confirmation (as defined below)—to be subscribed for by Manitex and paid–in in cash and/or by way of set-off of due claims of Manitex against PM (hereinafter the “Manitex Capital Increase”).

 

G. On 10 June 2014 by virtue of the resolution attached hereto as Schedule G(a) the board of directors of O&S approved the draft financial statements of O&S as at 31 December 2013 attached hereto as Schedule G(b) and resolved to call in:

 

  1) the ordinary shareholders meeting of O&S on 30 June 2014 in first call and 30 July 2014 in second call to resolve on the approval of the financial statement as at 31 December 2013 and the appointment of the auditing company for the fiscal years 2014-2017 (hereinafter the “O&S Ordinary Shareholders Meeting”);

and

 

  2) the extraordinary shareholders meeting of O&S on 30 June 2014 in first call and 30 July 2014 in second call (hereinafter the “O&S Extraordinary Shareholders’ Meeting”) to resolve on the following actions:

 

7

IPEF III Holdings n° 11 S.A.

18 rue de l’Eau

L-1449 Luxembourg

 

  (i) a capital increase in two tranches – the first one to be paid-in full (inscindibile)- for Euro 1.000,000.00 plus a share premium of Euro 2,500.996,00 and a second one – that can be subscribed and paid for also partially – for Euro 600,000.00 plus in any case an equity contribution of Euro 6,197,686.00 to cover losses – conditional upon both the Final Confirmation (as defined below) and subscription in full for the Shareholders Capital Increase or the Manitex Capital Increase, as the case may be – through issuance of corresponding ordinary shares of O&S to be subscribed for by PM and paid–in in cash or by way of set-off of due claims of PM against O&S (hereinafter the “O&S Capital Increase”).

 

H. The board of directors of PM called in PM’s Extraordinary Shareholders Meeting and PM’s Ordinary Shareholders Meeting pursuant to the notice of meeting, duly delivered to the shareholders, attached hereto as Schedule H(a).

 

I. The board of directors of O&S called in O&S Extraordinary Shareholders Meeting and O&S Ordinary Shareholders Meeting pursuant to the notice of meeting attached hereto as Schedule I(a).

 

J. On 20 June 2014 IPEF filed with PM the list of candidate directors attached hereto as Schedule J in respect of the renewal of the board of directors of PM.

 

K. On the date hereof (the “Signing Date”) the following actions took place:

 

  (a) PM and O&S executed with the Banks (as defined below) the debt restructuring agreement under article 182bis of the IBL (as defined below) attached hereto as Schedule K (a) (the “Banks Restructuring Agreement”);

 

  (b) IPEF mandated the Fiduciary Company (as defined below) to manage its equity interests in PM by executing the fiduciary mandate attached hereto as Schedule K (b) (the “Fiduciary Mandate for the PM Shares”) ;

 

  (c) PM mandated the Fiduciary Company (as defined below) to manage its equity interests in Pilosio by executing the fiduciary mandate attached hereto as Schedule K (c) (the “Fiduciary Mandate for the Pilosio Shares”);

 

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  (d) Columna, PM and the escrow agent executed the escrow agreement attached hereto as Schedule K (d) (the “Escrow Agreement”);

 

  (e) PM and Columna, through its subsidiary Polo Holdings S.à.r.l., executed the share purchase agreement attached hereto as Schedule K (e) in connection with the transfer of 100% of the equity interest in Pilosio (the “Pilosio Transfer Agreement”) and Columna, through its subsidiary Polo Holdings S.à.r.l., paid Euro 1,000,000.00 (one million) into the Escrow (as defined below);

 

  (f) Manitex and the Senior Banks (as defined below) executed the agreements attached hereto as Schedule K (f) with respect to the transfer of certain debts owed by PM to the Senior Banks (the “Assignment Agreements of the PM Bank Debts”);

 

  (g) Manitex and BPER executed the put and call agreement attached hereto as Schedule K (g) with respect to a certain debt owed by PM to BPER (the “Put and Call Agreement”);

 

  (h) PM and the Senior Banks (as defined below) executed the agreement attached hereto as Schedule K (h) with respect to the transfer of certain debts owed by O&S to the Senior Banks (the “Assignment Agreements of the O&S Bank Debts”).

 

I. Upon and subject to the terms and conditions contained in this agreement (hereinafter the “Agreement”), Manitex is willing to subscribe for the Manitex Capital Increase (hereinafter the “Investment”).

NOW, THEREFORE, in consideration of the mutual covenants and undertakings set forth herein and in the schedules hereto, Manitex, Columna and IPEF agree as follows:

 

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ARTICLE 1

DEFINITIONS - INTERPRETATION

 

1.1 Definitions. Without prejudice to any other term and/or expression defined elsewhere in this Agreement, the following terms and expressions shall have, in this Agreement, the following meaning:

“182bis Filing” means the petition to be filed by PM with the bankruptcy court of Modena pursuant to article 182bis of the IBL that must incorporate (in addition to the documents set out in article 182bis of the IBL) the Banks Restructuring Agreement, the Restructuring Plan and an expert opinion meeting the requirements set out in article 182bis of the IBL.

“Action” means any action, litigation, lawsuit, arbitration, appeal, petition, proceeding, complaint, charge, dispute, allegation, claim, suit, demand, mediation, hearing, investigation or similar proceeding by or before any Governmental Authority or inquiry or investigation by any Governmental Authority.

“Affiliate” means, with respect to a party, any Person which, directly or indirectly, controls, is controlled by, or is under common control with, such party.

“Agreement” means this investment agreement by and between IPEF and Columna on one side and Manitex on the other side, including its recitals and Schedules, as it may be amended in writing from time to time.

“Assignment Agreements of O&S Bank Debts” has the meaning ascribed to it in Recital K (h).

“Assignment Agreements of the PM Bank Debts” has the meaning ascribed to it in Recital K (f).

“Banks” means collectively the Senior Banks and the Junior Banks.

“Banks Restructuring Agreement” has the meaning ascribed to it in Recital K (a).

 

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“BPER” means Banca Popolare dell’Emilia Romagna s.c.a.r.l.

“BPER Subordinated Debt” means a portion of the senior debt owed by PM to BPER equal on the Signing Date to a principal amount of Euro 5,000,000.00 that will be restructured under the Banks Restructuring Agreement.

“Business Day” means any day in which the banks are normally open for business in Milan (Italy) and in Illinois (U.S.A.).

“Capital Increases” has the meaning set out in Recital F.2).

“Civil Code” means the Italian civil code, as approved by the Royal Decree dated 16 March 1942, No. 262, as subsequently amended.

“Closing” means the subscription for the Manitex Capital Increase and concurrent payment of the relevant capital contributions by Manitex at the terms set out in Article 4.

“control”, “controlled” or “controlling” the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities or similar ownership interests, by contract or otherwise.

“Date of Closing” means the day on which the Closing shall take place which shall be any day agreed between the Parties and PM falling between the 1st and the 5th day after the Banks Restructuring Agreement becomes effective.

“Designated Person” means the Person designated by Manitex to carry out the Investment pursuant to Article 4.4.

“Encumbrance” means any mortgage, lien, pledge, charge, encumbrance, charge, other security interest (or an agreement or commitment to create any of them), legal proceeding (such as seizure), easement, license, option, claim, other rights in-rem, including option rights, pre-emption rights, rights of first refusal or veto rights, rights under forward or preliminary sales, restriction on title, transfer or exercise of any other attribute of ownership, or other restriction or limitation of any kind whatsoever.

 

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“Escrow” means the escrow structure to be set up by Columna pursuant to the Escrow Agreement.

“Escrow Agreement” has the meaning ascribed to it in Recital K (d).

“Fiduciary Company” means EOS Servizi Fiduciari s.p.a. with registered office at Via Montebello 39, Milan (Italy).

“Fiduciary Mandate For The Pilosio Shares” has the meaning ascribed to it in Recital K (c).

“Fiduciary Mandate For The PM Shares” has the meaning ascribed to it in Recital K (b).

“Final Confirmation” means the becoming final and no longer appealable of the decree of the bankruptcy court of Modena confirming the Banks Restructuring Agreement (esecutività del decreto di omologazione).

“Final Confirmation Date” means the date on which the decree of the bankruptcy court of Modena confirming the 182bis Agreement becomes final and no longer appealable (data di esecutività del decreto di omologazione).

“Governmental Approvals” means any approval, authorization, consent, order, license, permit, certification qualification, exemption, registration, designation, declaration, filing, waiver or other authorization, issued, granted, given or otherwise made available by or under the authority of any Governmental Authority.

“Governmental Authority” means any government, state or political subdivision thereof, national or supranational body, court, tribunal or any person or body exercising executive, legislative, judicial, regulatory or administrative functions on behalf of any of them and includes all relevant securities commissions, stock exchange authorities, foreign exchange authorities, foreign investment authorities and similar entities or authorities.

 

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“IBL” means the Italian bankruptcy law set out in the Royal Decree n. 267 of 16 March 1942 as subsequently amended.

“Indemnification” has the meaning set out in Article 8.1.

“Investment” means the investment of Manitex in PM pursuant to Article 4.

“Junior Banks” means collectively Banca Nazionale del Lavoro s.p.a., Unipol Banca s.p.a., Banca Monte dei Paschi di Siena and Cassa di Risparmio in Bologna.

“Law” means any constitution, law, legislation, treaty, statute, ordinance, code, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any Governmental Authority having competent jurisdiction.

“Loss” means collectively any costs, losses, damages, liabilities, diminution in value, charges, actions, proceedings, claims, demands, fines, interest, penalties, costs and expenses including reasonable professional fees and out-of-pocket costs of investigation, litigation, settlement and judgement.

“Manitex Capital Increase” has the meaning set out in Recital F.2(ii).

“New Shares” means the shares of PM to be newly issued in the context of the Shareholders Capital Increase or the Manitex Capital Increase, as the case may be.

“O&S” means Oil&Steel s.p.a. with registered office at 22 Via Verdi, San Cesario sul Panaro (MO).

“O&S Capital Increase” means the capital increase at O&S pursuant to Recital G.2(i).

“O&S Bank Debts” means the following senior debts of O&S: (i) the debts owed by O&S to Unicredit equal to Euro 3,120,500.00 (three million one hundred twenty hundred five hundred); (ii) the debts owed by O&S to BPER equal to Euro 3,120,500.00 (three million one hundred twenty hundred five hundred).

 

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“O&S Extraordinary Shareholders’ Meeting” means the extraordinary shareholders meeting of O&S to be held pursuant to Recital G.2.

“O&S Ordinary Shareholders’ Meeting” means the ordinary shareholders meeting of O&S called in pursuant to Recital G.1.

“O&S Pledge” means the pledge executed by and between the Senior Banks and the Company to secure the senior debts owed by PM, O&S and Pilosio to the Senior Banks.

“Option Right” means collectively the right of option to subscribe for shares newly issued in the context of a capital increase and the pre-emption right on those of such newly issued shares which shareholders have not subscribed for pursuant to article 2441, paragraph 3, of the Italian Civil Code.

“Order” means any judgment, award, decree, ruling or any other order of any Governmental Authority.

“Organizational Documents” means the articles of incorporation, by-laws, regulations concerning the board resolutions, corporate registry and other similar documents, instruments or certificates executed, adopted or filed in connection with the creation, formation or organization of a Person, including any amendments thereto.

“Party” or “Parties” means IPEF, Columna or Manitex or all of them, as the context may require.

“Person” means any individual, company, firm, general or limited partnership, general partnership between individual persons, joint venture, corporation, proprietorship, association, trust, governmental body, agency or institution of a government, or any other organization or entity, public or private.

“Pilosio” means Pilosio s.p.a. with registered office at Via Fermi 45, Tavagnacco (UD).

 

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“Pilosio Transfer Agreement” has the meaning ascribed to it in Recital K (e).

“PM” means PM Group s.p.a. with registered office at Via Verdi 22, San Cesario sul Panaro (Modena) (Italy).

“PM’s Extraordinary Shareholders’ Meeting” has the meaning ascribed to it in Recital F.2). PM’s Extraordinary Shareholders’ Meeting will become effective subject to, and on the date of Final Confirmation.

“PM’s Ordinary Shareholders’ Meeting” means the ordinary shareholders’ meeting of PM called in pursuant to Recital F.1).

“PM Pledge” means the pledge executed by and between the Senior Banks and the then shareholders of PM to secure the senior debts owed by PM, O&S and Pilosio to the Senior Banks.

“PM’s Restructuring” means the restructuring of PM by way collectively of the Investment and the debt restructuring set out in the Banks Restructuring Agreement.

“Previous Restructuring Proceedings” means the recovery plan under article 67, paragraph 3.d) of the IBL approved by PM and O&S in November 2010 and the restructuring proceedings under article 182bis of the IBL filed by PM and O&S in May 2012.

“Put and Call Agreement” has the meaning ascribed to it in Recital K (g).

“Representatives” means shareholders, directors, executives, representatives, members, agents, employees or advisors.

“Restructuring Plan” means the restructuring plan of PM and O&S attached hereto as Schedule 1.1.

“Senior Banks” means collectively BPER and Unicredit.

 

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“Signing” means the signing of this Agreement and the simultaneous signing of the agreements and completion of the actions set out in Recital K.

“Signing Date” means the date of Signing.

“Shareholders” means the shareholders of PM as per Recital D.

“Shareholders Capital Increase” has the meaning set out in Recital F.2(i).

 

1.2 Interpretation. In this Agreement, unless the context otherwise requires:

 

  (i) words denoting the singular shall include the plural and vice versa, words denoting any gender shall include all genders and words denoting any person shall include bodies corporate, unincorporated, associations, partnerships and individuals;

 

  (ii) references to a recital, an Article, a Paragraph of or a Schedule to, are to a recital of, an Article of, a Paragraph of, or a Schedule to, this Agreement, and references to this Agreement include its recitals and its Schedules;

 

  (iii) the headings of an Article or a Schedule of this Agreement are indicated for clarification purposes only and, consequently, they do not form an integral part of this Agreement and may not be used for purposes of interpretation;

 

  (iv) the word “including” or any variation thereof means “including, without limitation” and shall not be construed to limit any general statement to any specific or similar items or matters immediately following it;

 

  (v) the words “procure” and “cause” include the obligation to deliver the performance of a third party pursuant to article 1381 of the Civil Code save for the case where such words follow the expression “use its best efforts to”;

 

  (vi) the words “herein”, “hereof” and “hereunder” and similar words shall be construed to refer to this Agreement (including the Schedules thereto) in its entirety and not to any part thereof, unless the context otherwise requires;

 

  (vii) the division of this Agreement into Articles and/or paragraphs and other subdivisions and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement;

 

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  (viii) where in this Agreement an Italian term is given in italics or in italics and in brackets after an English term and there is any inconsistency between the Italian and the English terms, the meaning of the Italian term shall prevail;

 

  (ix) any reference in this Agreement to a “day” or number of “days” (without the explicit qualification of Business Day(s)) shall be interpreted as a reference to a calendar day or number of calendar days. Unless otherwise expressly indicated, any period of time expressed in days or months shall be calculated under Article 2963 (Computo dei termini di prescrizione) of the Civil Code.

 

1.3 No Adverse Construction against Drafter. The language throughout this Agreement shall in all cases be construed as a whole according to its fair meaning and without implying a presumption that the terms hereof shall be more strictly construed against one Party as opposed to another by reason of the rule that a document is to be construed more strictly against the Party who has prepared the same, it being acknowledged that representatives of all Parties have participated in the drafting and negotiation of this Agreement.

ARTICLE 2

OBLIGATIONS OF IPEF IN RESPECT OF THE CAPITAL INCREASES AND THE O&S CAPITAL INCREASE

 

2.1 Capital Increases. Upon the terms and subject to the conditions set forth in this Agreement, IPEF hereby commits to cause the Fiduciary Company to participate to PM’s Extraordinary Shareholders’ Meeting in second call (and not in first call), directly or by proxy, and in the context of such meeting to cast its vote in favour of the Capital Increases.

 

2.2 Waiver of Option Right. Following approval of the Capital Increases and in the context of PM’s Extraordinary Shareholders’ Meeting, IPEF commits to cause the Fiduciary Company to waive the Option Right on the New Shares by expressing such waiver in writing within the deadlines set for the exercise of the Option Right under the PM’s Extraordinary Shareholders’ Meeting.

 

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2.3 Waiver of any Shareholder’s right. IPEF hereby acknowledges and represents that the waiver of the Option Rights on the New Shares will imply the waiver of its capacity as shareholder of PM and of any right coupled with such capacity, including any action, course of action, and objection anyhow connected with such capacity and/or with the subscription for the New Shares by Manitex in the context of the Manitex Capital Increase.

 

2.4 O&S Capital Increase. Upon the terms and subject to the conditions set forth in this Agreement, IPEF hereby commits to use its best efforts to cause PM to participate to O&S’s Extraordinary Shareholders Meeting in second call (and not in first call), directly or by proxy, and in the context of such meeting cast its vote in favour of O&S Capital Increase.

ARTICLE 3

FURTHER OBLIGATIONS OF IPEF PRIOR TO CLOSING

 

3.1 Ordinary shareholders’ meetings. Before the Date of Closing, IPEF shall:

 

  (i) mandate the Fiduciary Company to participate to PM’s Ordinary Shareholders Meeting in second call (and not in first call), directly or by proxy, and in the context of such meeting cast its vote as follows:

 

  (a) in favour of the approval (without changes) of the financial statements attached hereto as Schedule F(b);

 

  (b) in favour of the appointment of the current directors and statutory auditors (sindaci) for a period of 1 (one) year ending upon approval of the financial statements as at 31 December 2014;

 

  (c) in favour of the appointment of Mr. Giuliano Asperti as chairman of the board of directors for the same period set out under paragraph (b) above;

 

  (d) in favour of the payment to the directors so elected of the following annual fees: Euro 150,000.00 to the Chairman due on a monthly basis in installments of Euro 12,500.00 each, Euro 20,000.00 to Mr. Luigi Fucili due on a monthly basis in installments of Euro 1,666.00 each and Euro 300,00 to each of the other directors for each board meeting at which they participate;

 

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  (e) in favour of the confirmation of the current auditing company for the fiscal years 2014-2017;

 

  (ii) use its best effort to cause PM to participate in second call (and not in first call), directly or by proxy, to the O&S Ordinary Shareholders’ Meeting and in the context of such meeting cast its vote as follows:

 

  (a) in favour of the approval (without changes) of the financial statements attached hereto as Schedule G(b);

 

  (b) in favour of the confirmation of the current auditing company for the fiscal years 2014-2017;

 

  (iii) use its best efforts to procure that the directors and possibly the statutory auditors (sindaci) of PM and O&S hand in their written resignations by virtue of a letter executed substantially in the form attached hereto as Schedule 3.1;

 

  (iv) use its best efforts to procure that the board of directors of PM convenes an ordinary shareholders meeting of PM to be held on the Date of Closing for the purposes of electing new directors and possibly statutory auditors (sindaci) in lieu of the ones in office as a consequence of their resignations under paragraph (iii) above;

 

  (v) mandate the Fiduciary Company to timely file with PM the list of candidate directors and possibly statutory auditors (sindaci) put forward for election in the ordinary shareholders meeting under paragraph (iv) above, such list to be prepared in accordance with the instructions to be timely given in writing by Manitex to IPEF.

 

3.2 182bis Filing. Before the Date of Closing, IPEF shall also use its best efforts to procure that PM makes the 182bis Filing as soon as possible following the Signing Date.

 

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3.3 Pilosio Transfer. Before the Date of Closing and upon satisfaction of the conditions precedent set out in the Pilosio Transfer Agreement, Columna shall cause its subsidiary Polo Holdings S.à.r.l. to purchase from PM the equity interests in Pilosio and shall cause the relevant price to be paid out of the Escrow.

ARTICLE 4

CLOSING

 

4.1 Closing. Subject to the discharge by IPEF and Columna of the obligations set forth in Articles 2 and 3 and the satisfaction or waiver in writing of the conditions precedent set out in Article 10, Closing shall take place on the Date of Closing at such place and/or time which will be mutually agreed upon by the Parties and PM.

 

4.2 Closing actions. At Closing, each Party shall do or procure the performance of all actions necessary in order to consummate the transactions contemplated by this Agreement as follows:

 

  (a) Manitex shall subscribe for the Manitex Capital Increase and concurrently pay-in the relevant capital contribution as to Euro 12,000,000 (twelve million) in cash and as to the remaining Euro 32,500,000 (thirty two million five hundred thousand) by off-setting the relevant debt against the PM debts purchased under the Assignment Agreement of the PM Bank Debt;

 

  (b) IPEF shall use its best efforts to procure that PM’s directors register Manitex, or the Designated Person, as shareholder of PM in the shareholders register and deliver to Manitex or the Designated Person a copy of such registration as well as of the registration of the New Shares in the name of Manitex or the Designated Person by the centralized securities management agency (Monte Titoli) and the registration of the PM Pledge on the New Shares in the form requested by the Senior Banks;

 

  (c)

unless Manitex is entitled to participate to the ordinary shareholders meeting of PM called in pursuant to Article 3.1 (iv) as new shareholders of PM, IPEF shall participate and, in the event it is not entitled to, shall mandate the Fiduciary

 

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  Company to participate to such shareholders meeting of PM and cast its vote in favour of the appointment of the directors and possibly the statutory auditors set out in the list filed with PM pursuant to Article 3.1 (v) or, failing such list, in accordance with the instructions of Manitex;

 

  (d) the Parties shall carry out any additional formality and execute any further document that will be required under applicable Laws to execute the Investment;

 

  (e) IPEF shall procure that Pilosio pays to PM the debts owed by Pilosio and O&S to PM net of any set-off against debts owed by PM and O&S to Pilosio.

 

4.3 Acquisition of Title. Upon completion of Closing, Manitex will acquire title to the New Shares together with all rights coupled therewith starting from the Date of Closing.

 

4.4 Right to Designate. Manitex shall have the right to designate a Person to become a party to this Agreement and to subscribe and pay for the New Shares in accordance with the terms hereof (the “Designated Person”), provided that such designation is made in compliance with the following provisions:

 

  a. anything in any applicable provisions of law to the contrary notwithstanding, such designation will be sufficiently made if notified in writing to IPEF together with the written acceptance of the Person so designated;

 

  b. such designation shall be notified to IPEF not later than 3 (three) Business Days prior to the Date of Closing;

 

  c. the Designated Person will be an Affiliate of Manitex incorporated in Europe or the United Kingdom;

 

  d. Manitex will be jointly liable with the Designated Person for the correct execution of the transactions contemplated in this Agreement and such joint liability will be confirmed in the notice under paragraph (b) above.

 

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4.5 Timing and effectiveness. All of the actions, executions, productions, remittances and deliveries under Article 4.2 provided to be taken and made at Closing shall take place simultaneously, meaning that no action, execution, production, remittance and delivery shall be effective unless all other actions, executions, productions, remittances and deliveries shall be fully and regularly performed.

ARTICLE 5

REPRESENTATIONS AND WARRANTIES BY IPEF

 

5.1 Representations and warranties by IPEF. Subject to the provisions of Section 5.2, IPEF makes to Manitex the following representations and warranties, and acknowledges that they are correct and true as at the date of execution of this Agreement and that they shall be correct and true as at the Closing.

 

  (a) Power and authorizations; Governmental Approvals; third party consent

 

  (i) IPEF has full power and authority to execute and deliver this Agreement and each other document or instrument delivered in connection herewith and to perform its obligations under this Agreement and each other document or instrument delivered in connection herewith and consummate the transactions contemplated hereby.

 

  (ii) This Agreement and any other document or instrument delivered in connection herewith constitute a legally valid and binding obligation for IPEF. Neither the execution or the delivery of this Agreement nor the consummation of the transactions contemplated hereby will result in violation of: (i) any law provision or the by-laws of IPEF or any resolution taken by the competent corporate bodies of IPEF; (ii) any judgement, decree, injunction or arbitration award rendered or delivered by any Governmental Authority or arbitrator having jurisdiction or competence upon IPEF.

 

  (iii) No Governmental Approval is required to be obtained by IPEF under the relevant Law in connection with the execution, delivery and performance of this Agreement at or prior to the Closing Date.

 

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  (b) Stock capital of PM and O&S

 

  (i) IPEF is the legal and beneficial owner of no. 77,669,404 shares in PM representing 76.66% of the issued and authorized share capital of PM. Such shares are subject to the PM Pledge.

 

  (ii) The shares of O&S are subject to the O&S Pledge.

 

  (iii) There is no agreement or undertaking pursuant to which any Person is or could become entitled to request the issue of new shares by PM or O&S and/or the transfer of any of the issued and authorized shares.

 

  (iv) PM and O&S have neither issued: (A) any options (other than the officers and directors incentive plan agreed with the Senior Banks in the context of the 2012 restructuring), warrants, conversion privileges or rights, purchase rights, subscription rights, exchange rights or other contracts or commitments which could require PM and O&S to issue or sell any of its capital stock, (B) any convertible or exchangeable securities against shares, or (C) any other securities which could give rise to a capital increase, nor has it issued any securities granting the right to any amount which PM and O&S might distribute, or the voting rights in the general meetings of PM and O&S or which could result in any limitation of the rights attached to the issued shares.

 

  (c) Incorporation and existence of PM and O&S

 

  (i) PM and O&S are duly incorporated, organized and validly existing under the Laws and have full corporate power and all necessary Governmental Approvals to carry on their business as currently conducted and to own, lease and operate the assets and properties used in connection therewith, and no of them has violated any terms of such Governmental Approvals.

 

  (ii) PM and O&S have not been subject to any insolvency or bankruptcy or recovery process whatsoever other than the Previous Restructuring Proceedings and no such process is pending. On the Date of Signing PM and O&S have a negative equity relevant for the purposes of article 2447 of the Italian Civil Code.

 

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  (iii) Copies of the current by-laws of PM and O&S are attached as Schedule 5.1 (c) (iii), which copies are true and complete.

 

5.2 Exclusion of further representations or warranties. It is expressly specified and agreed upon by the Parties that the representations and warranties set forth in Section 5.1 are the sole representations and warranties given by IPEF to Manitex in connection with the Investment contemplated in this Agreement, with express exclusion of any other implicit representation and warranty.

ARTICLE 6

REPRESENTATIONS AND WARRANTIES BY MANITEX

 

6.1 Representations or warranties by Manitex. Subject to the provisions of Section 6.2, Manitex makes to IPEF the following representations and warranties, and acknowledges that they are correct and true as at the date of execution of this Agreement and that they shall be correct and true as at Closing.

 

(a) Corporate power and authorizations

 

  (i) Manitex has full corporate power and authority to execute and deliver this Agreement and each other document or instrument delivered in connection herewith and to consummate the transactions contemplated hereby.

 

  (ii) This Agreement constitutes a legally valid and binding obligation for Manitex, and the entry into this Agreement and/or the performance by Manitex of its obligations hereunder has been duly authorized by means of all corporate actions taken by the competent corporate bodies of Manitex. No consent, approval, authorisation, declaration or communication to or from whatsoever public authority or other entity is required to be obtained or performed by Manitex in connection with the entering into this Agreement and/or the performance of any obligation hereunder for the Investment.

 

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(b) Violations

Neither the execution or the delivery of this Agreement nor the consummation of the transactions contemplated hereby will result in violation of:

 

  (i) any law provision or the by-laws of Manitex or any resolution taken by the competent corporate bodies of Manitex;

 

  (ii) any judgement, decree, injunction or arbitration award rendered or delivered by any Governmental Authority or arbitrator having jurisdiction or competence upon Manitex.

 

6.2 Exclusion of further representations or warranties. It is expressly specified and agreed upon by the Parties that the representations and warranties set forth in Section 6.1 are the sole representations and warranties given by Manitex to IPEF in connection with the Investment contemplated in this Agreement, with express exclusion of any other implicit representation and warranty.

ARTICLE 7

COVENANTS

 

7.1 General. During the period between the date hereof and the Date of Closing, each Party will use its reasonable best efforts to take all actions and do all things necessary, proper or advisable to consummate, make effective, and comply with all of the terms of this Agreement and the transactions contemplated hereunder. Each Party shall cooperate with each other and use commercially reasonable efforts to satisfy all of the Closing conditions in an expeditious manner.

 

7.2 Access to information. From the date hereof until Closing, IPEF shall permit and use its reasonable best efforts to cause PM and O&S to permit, Manitex, its Affiliates and/or their Representatives to have access at all reasonable times, to a reasonable extent, and in a manner so as not to interfere with the normal business operations of PM and O&S, to their premises, properties, management, employees, personnel, systems, stored data and other information, books, records, contracts and documents Manitex may reasonably request.

 

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7.3 Conduct of IPEF prior to Closing. From and after the date hereof, and until completion of Closing, unless otherwise contemplated by this Agreement or approved in writing by Manitex, IPEF shall not take any action that would require a resolution of the shareholders meeting of PM (except for the resolutions to be approved by IPEF in the context of the PM Extraordinary Shareholders’ Meeting and the PM Ordinary Shareholders’ Meeting pursuant to Articles 2, 3 and 4.2(c) above) or that may prejudice or affect the consummation of the Investment, including by way of example approving any resolutions of the shareholders meeting of PM providing for:

 

  (a) the issuance of new shares other than in the context of the Capital Increases, the issuance of convertible bonds, bonds with warrants or any other securities convertible into or exercisable for any shares of capital stock of PM, any rights, warrants, options, calls or commitments to acquire or related to any shares of capital stock or other equity interests with respect to PM, any awards under any bonus, incentive or other compensation plan or arrangement which would result in the right to receive shares or other equity interests of PM (including the grant of stock options, stock appreciation rights or other stock related awards) or modifies or amends any right of any holder of outstanding shares of capital stock of, or any options with respect to PM;

 

  (b) any extra-ordinary corporate transaction of PM such as mergers, demergers, spin-offs, disposals of equity interest or businesses other than in accordance with the Restructuring Plan;

 

  (c) any bonus, award, benefit or other compensation plan or arrangement to any director or officer of PM different from the directors’ fees set out in Article 3.1 (i) (d) above or any increase or variation of whatever nature of such fees;

 

  (d) the change of the Organizational Documents of PM, save for those necessary to comply with any mandatory provision of law or to allow the consummation of the Investment.

 

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7.4 Conduct of business prior to the Closing. From and after the date hereof, and until completion of Closing, unless otherwise contemplated by this Agreement or approved in writing by Manitex, IPEF shall use its reasonable best efforts to cause PM and O&S to conduct the respective businesses in the ordinary course of business, consistent with past practice.

Without limiting the generality of the foregoing, during the period between the date hereof and the occurrence of Closing, and unless otherwise contemplated by this Agreement or approved in writing by Manitex, which consent shall not be unreasonably withheld or delayed, IPEF shall use its reasonable best efforts to procure that nor PM or O&S:

 

  (a) issues, sells, pledges, transfers, grants, otherwise disposes of or encumbers any shares of capital stock or other equity interests of PM and O&S, convertible bonds, bonds with warrants or any other securities convertible into or exercisable for any shares of capital stock of PM and O&S or equity interests, any rights, warrants, options, calls or commitments to acquire or related to any shares of capital stock or other equity interests with respect to PM and O&S, any awards under any bonus, incentive or other compensation plan or arrangement which would result in the right to receive shares or other equity interests of PM and O&S (including the grant of stock options, stock appreciation rights or other stock related awards) or modifies or amends any right of any holder of outstanding shares of capital stock of, or any options with respect to PM and O&S;

 

  (b) takes any action that would require a resolution of the shareholders meeting of PM and O&S, except for those resolutions that may be required to effectuate and carry out the terms and conditions of this Agreement;

 

  (c) borrows from financial institutions, issues any debt securities or otherwise incurs any indebtedness or guarantees any indebtedness, assumes guarantee or endorses of any obligations of any other Person other than as set forth in the Banks Restructuring Agreement;

 

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IPEF III Holdings n° 11 S.A.

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  (d) merges or consolidates or agrees to merge or consolidate with any Person or takes any action with respect to any recapitalization, restructuring reorganization, liquidation or dissolution of PM and O&S other than the actions laid out in the Banks Restructuring Agreement;

 

  (e) sells, transfers, leases, mortgages, encumbers, licenses or otherwise disposes of assets (other than the equity interest in Pilosio under the Pilosio Transfer Agreement), properties or businesses in any transaction or series of related transactions; incur, create or assume any Encumbrance on any of the assets or properties of any company of PM and O&S other than as permitted under the Banks Restructuring Agreement;

 

  (f) changes the Organizational Documents of PM and O&S, save for those necessary to comply with any mandatory provision of law;

 

  (g) changes the normal level of inventories or supplies, or alter its practice or policy in collection of accounts receivable or payment of accounts payable, other than in the ordinary course of business;

 

  (h) assumes or enters into or renegotiates or renews any collective bargaining agreement, contract or other agreement or understanding with a labor union or labor organization at, or any employee, of PM and O&S;

 

  (i) makes any loans, advances or capital contributions to, or investments in, any other Person;

 

  (j) settles any pending or threatened claims, actions, arbitrations, disputes or other proceedings;

 

  (k) makes any capital expenditure in excess of the amounts set out in the Restructuring Plan with respect to the relevant timeframe;

 

  (l) acquires (by merger, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division or business unit or material asset thereof or any equity interest therein;

 

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  (m) enters into or effectuates any transaction with its Affiliate or any other related person other than in the ordinary course of business and on arm’s length terms and/or makes any payment to its Affiliates other than pursuant to agreements executed before or after the Date of Signing on arm’s length terms, in the ordinary course of business and consistently with past practice;

 

  (n) (A) makes any change in the terms and conditions of employment of any director, officer or employee or (B) hires, employs or lays off directors, officers or employees, other than in the ordinary course of business; grants any increase in the compensation of their directors, officers and employees; pays or provides compensation or benefit to its directors, officers and employees other than in the ordinary course of business;

 

  (o) implements any change in accounting methods, principles, practices or procedures.

 

7.5 Notice of development. IPEF will give prompt written notice to Manitex of any material adverse development of which it becomes aware and which may cause a breach of any of the representations and warranties in Article 5.

ARTICLE 8

INDEMNIFICATION FOR BREACH BY IPEF OF

REPRESENTATIONS, WARRANTIES AND COVENANTS

 

8.1 Indemnification. Subject to the other terms and conditions of this Agreement, IPEF shall indemnify and hold Manitex, its Affiliates and their Representatives (collectively, the “Manitex Indemnified Parties”) harmless from and against any Loss suffered or incurred by any of the Manitex Indemnified Parties or PM and O&S arising out of or resulting from any breach of, inaccuracy in, non fulfillment of, or misrepresentation in any representation or warranty, undertaking, obligation, agreement or covenant of IPEF under this Agreement.

 

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The indemnification related to any Loss as per this Section 8.1 (hereinafter referred to as “Indemnification”) shall be calculated and paid as provided for in following Sections of this Article 8.

 

8.2 Limitation to the obligation to indemnify. The Parties agree that notwithstanding anything to the contrary herein, at law or in equity, the right to indemnification, reimbursement or other remedy based upon such representations, warranties, covenants and obligations shall not be affected by any investigation conducted with respect to, any knowledge or awareness acquired for (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Date of Closing, or any information (other than information Disclosed) furnished to Manitex, its Affiliates and their Representatives, with respect to the accuracy or inaccuracy of or compliance with any such representation, warranty, covenant or obligation. It is understood that in no event IPEF shall indemnify any Manitex Indemnified Party in case the directors and statutory auditors (sindaci) of PM and/or O&S eventually refuse to resign from their office and/or refuse to carry out any actions they are expected to carry out according to this Agreement.

 

8.3 Time limitations. In no event shall IPEF be liable to Manitex under this Article 8 in respect of any actual or alleged breach of any representations and warranties contained in this Agreement which is notified to IPEF later than 12 (twelve) months after the Date of Closing.

Any claim made pursuant to the provisions of this Article shall remain valid until the claimed Loss, if due, has been actually indemnified, notwithstanding the time limits set forth in this Article 8.3 are elapsed. For the sake of clarity, it is hereby understood and agreed that any indemnification obligation in respect of any Loss which constitutes the object of pending litigation under Article 14 hereof or of a pending judicial dispute or which has not been determined in the exact amount as at the date of expiration of the aforesaid time limits, shall also survive and remain in full force and effect until such time as the relevant proceedings have come to an end and IPEF, if so decided in the outcome of such proceedings, has paid and discharged such Indemnification in full. IPEF’s aggregate liability for or with respect to any inaccuracies in or breaches of any representation or warranty made by IPEF under Article 6 for all Indemnifications shall not exceed, in any event, an aggregate total amount of Euro 2.000.000 (two million).

 

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8.4 Handling of Claims—Procedure. Notices of claims under this Article 8 by any Manitex Indemnified Parties shall be given to IPEF. In case of claims for inaccuracy in or breach of representations and warranties, such notice shall be made within the relevant survival period pursuant to Section 8.3. Such notice of claim shall specify in reasonable detail the factual basis of the claim and a non-binding estimate of the amount of Losses which are, or are to be, the subject of the claim (including any Losses which are contingent on the occurrence of any future event). If Manitex Indemnified Parties fail to give notice required pursuant to this Section 8.4 within the relevant period specified in Section 8.3, the Manitex Indemnified Parties shall not be entitled to make the relevant claim under this Agreement.

ARTICLE 9

INDEMNIFICATION BY MANITEX

 

9.1 Manitex indemnification. Manitex shall indemnify and hold IPEF harmless from and against any Loss suffered or incurred by IPEF resulting from (i) a breach of any representation or warranty given by Manitex hereunder or (ii) a breach of any covenant undertaken by Manitex hereunder including Manitex’s failure to subscribe for the Manitex Capital Increase and concurrently pay-in the relevant capital contributions at the terms set out in Article 4 above, upon discharge of all the obligations set forth in Articles 2 and 3 and the satisfaction or waiver in writing of the conditions precedent set out in Article 10. Manitex’s aggregate liability for or with respect to any inaccuracies in or breaches of any representation or warranty made by Manitex under Article 6 for all Indemnifications shall not exceed, in any event, an aggregate total amount of Euro 2,000,000.00 (two million).

To this extent the claim handling procedure set forth in Article 8 shall apply mutatis mutandis.

 

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ARTICLE 10

CONDITIONS PRECEDENT TO CLOSING

 

10.1 Conditions precedent to the obligations of Manitex. The obligations of Manitex to consummate the transactions contemplated hereunder shall be subject to the satisfaction or waiver of the following conditions:

 

  (a) the court will have confirmed the Bank Restructuring Agreement pursuant to article 182bis of the IBL (omologazione dell’accordo di ristrutturazione dei debiti);

 

  (b) the board of directors of PM will have confirmed in writing to Manitex that the decision of the court confirming the Banks Restructuring Agreement pursuant to article 182bis of the IBL has not been timely challenged under article 182bis, paragraph 5, of the IBL or, alternatively, that any challenge have been rejected by the competent Court;

 

  (c) PM’s Extraordinary Shareholders’ Meeting will have approved the Capital Increases in accordance with the terms and conditions set out in Recital F;

 

  (d) the O&S Extraordinary Shareholders’ Meeting will have approved the O&S Capital Increase in accordance with the terms and conditions set out in Recital G.2;

 

  (e) the shareholders meeting of PM and O&S will have approved the respective financial statements as at 31 December 2013 with the same contents of the draft financial statements attached hereto as Schedule F(b) and Schedule G(b);

 

  (f) PM will have approved the audited consolidated financial statements of PM as at 31 December 2013 and the auditing company of PM will have released a clean opinion thereon save for possible qualifications on the going concern of PM;

 

  (g) the Shareholders Capital Increase shall not have been subscribed in full within the deadline set by the resolution of the PM’s Extraordinary Shareholders Meeting;

 

  (h) the auditing company of PM will have released a clean opinion on the consolidated financial statements of PM (excluding Pilosio and its subsidiaries), including (i) the statements of income, comprehensive income, cash flows and changes in equity for the three years ended respectively on 31 December 2011, 31 December 2012 and 31 December 2013 and (ii) the balance sheets for the two years ended on 31 December 2012 and 31 December 2013 (the “PM Group carve-out year-end consolidated financial statements”) except for possible qualifications in respect of PM’s going concern;

 

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  (i) the directors of PM and O&S will have handed in their resignations by virtue of a letter executed in the form attached hereto as Schedule 3.1;

 

  (j) the board of directors of PM and the board of directors of O&S will have convened the respective ordinary shareholders meeting on the Closing Date for the purpose of electing new directors and possibly statutory auditors (sindaci) in lieu of those leaving the office:

 

  (k) prior to or at the latest on the date of subscription by Manitex for the Manitex Capital Increase and subject to payment by Manitex of the consideration due pursuant to the Assignment Agreements of PM Banks Debts, PM will have cashed or will cash the purchase price for 100% of the shares in Pilosio set out in the Pilosio Transfer Agreement;

 

  (l) no order, injunction, judgment or decree issued by any governmental or judicial authority or other legal restraint or prohibition preventing the subscription for the Manitex Capital Increase will be in effect;

 

  (m) none of the following events, changes or circumstances shall have occurred prior to the Date of Closing:

 

  (i) a disruption in the financial, banking, lending, debt or capital markets or in securities settlement or clearance services in the United States preventing Manitex from subscribing and/or completing the Manitex Capital Increase;

 

  (ii) suspension or material limitation in trading in securities in general preventing Manitex from subscribing and/or completing the Manitex Capital Increase;

 

  (iii) a Material Adverse Effect (Effetto Pregiudizievole Significativo) as defined in the Banks Restructuring Agreement, unless cured by the Date of Closing;

 

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IPEF III Holdings n° 11 S.A.

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  (n) prior to the subscription by Manitex for the Manitex Capital Increase and subject to payment by Manitex of the consideration due pursuant to the Assignment Agreements of PM Banks Debts, the Pilosio Transfer Agreement shall have become effective (i.e. the Pilosio’s shares shall have been transferred to Polo Holdings S.à.r.l., the subsidiary of Columna, thereunder);

 

  (o) prior to the subscription by Manitex for the Manitex Capital Increase and subject to payment by Manitex of the consideration due thereunder, the Assignment Agreements of the PM Bank Debts and the Assignment Agreements of O&S Bank Debts shall have become effective.

 

10.2 Waiver. Manitex may at any time waive in whole or in part and conditionally or unconditionally the conditions set out in Section 10.1 by notice in writing to IPEF and Columna.

 

10.3 Deadline. Should the conditions precedent under Section 10.1 not be all satisfied or waived by 31 January 2015, this Agreement shall be definitively with no effect.

ARTICLE 11

TERMINATION

 

11.1 Termination. This Agreement may be terminated by written notice to the other Parties at any time prior to the Date of Closing:

 

  (a) by the written agreement of Manitex and IPEF;

 

  (b) by Manitex, if IPEF shall have breached, in any material respect, any of its representations, warranties, covenants or other obligations under this Agreement and such breach shall be incapable of cure or has not been cured within 10 (ten) Business Days following the giving of written notice of such breach to IPEF;

 

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  (c) by IPEF, if Manitex shall have breached, in any material respect, any of its representations, warranties, covenants or other obligations under this Agreement and such breach shall be incapable of cure or has not been cured within 10 (ten) Business Days following the giving of written notice of such breach to Manitex;

 

  (d) by Manitex, if any of the conditions in Section 10.1 is or becomes incapable of being satisfied and Manitex has not waived such condition, and the non-satisfaction is not due to a failure by Manitex to fulfill its obligations under this Agreement.

 

11.2 Effect of Termination. If this Agreement is terminated pursuant to Article 11.1, this Agreement shall become void and of no effect without liability of any Party (or its Affiliates or any of its Representatives) to the other Party; provided, however, that nothing herein shall relieve any Party from liability for any breach hereof prior to such termination.

ARTICLE 12

ANNOUNCEMENTS AND CONFIDENTIALITY

 

12.1 Press release and announcement. No publicity, release of announcement to the public concerning the existence, negotiation, execution or delivery of this Agreement, or any of the provisions contained herein, or the transactions contemplated hereby or any matter ancillary thereto shall be made by any Party prior to, or on, or after the Date of Closing, without the prior written consent of the other Party, as to both form and contents, which consent and approval shall not be unreasonably withheld; provided, however, that nothing herein shall prevent Manitex from making any announcement or filing mandatorily required by Laws or by the rules and regulations of any stock exchange or other regulatory body having jurisdiction on Manitex.

 

12.2 Confidentiality. Each Party shall maintain in confidence, and shall cause its Representatives to maintain in confidence, any written, oral, or other information obtained in confidence from the other Party or PM and O&S in connection with this Agreement or the transactions contemplated hereunder.

 

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The above restrictions shall not apply to the disclosure of any of the aforesaid information by a Party, if (a) such disclosure or the furnishing or use of such information is required by any applicable Law (including, for the avoidance of doubt, rules or regulations issued by a relevant stock exchange applicable to a Party), (b) such disclosure or the furnishing or use of such information is required pursuant to this Agreement, (c) such information is already known to such Party or to others not bound by a duty of confidentiality or such information becomes publicly available through no fault of such Party, or (d) the use of such information is necessary or appropriate in making any filing or obtaining any Governmental Approvals required for the consummation of the transactions contemplated hereunder.

ARTICLE 13

MISCELLANEOUS

 

13.1 Joint liability of Columna. Columna hereby agrees pursuant to article 1936 of the Civil Code to guarantee the discharge by IPEF of any and all obligations of IPEF under this Agreement and to be jointly liable with IPEF for the correct and timely performance of the transactions contemplated under this Agreement.

 

13.2 Taxes, costs and expenses. Manitex shall bear all the taxes, costs and expenses incurred in connection with this Agreement other than the fees due by Columna to its legal and financial advisors, unless agreed otherwise between the Parties.

 

13.3 Amendment. No amendment to this Agreement shall be effective against any Party hereto unless made in writing and signed by such Party.

 

13.4 Failure and waiver. No failure to exercise or delay in exercising any right or remedy under this Agreement shall constitute a waiver thereof. No single or partial exercise of any right or remedy under this Agreement shall prevent any other or further exercise thereof or the exercise of any other right or remedy.

A waiver of any term, provision or condition of, or consent granted under, this Agreement shall be effective only if given in writing and signed by the waiving or consenting Party and only for the purpose for which it is given.

 

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13.5 Severability. The invalidity for any reason or the unenforceability of any provisions (or part thereof) of this Agreement shall not affect the validity, legality or enforceability of any other provisions of this Agreement (or part thereof); it being agreed and understood by the Parties that if any provision (or part thereof) is or at any time becomes to any extent invalid, illegal or unenforceable, the Parties shall negotiate to any possible legal extent and in good faith such replacement provisions or such changes to this Agreement as may be necessary to implement the transactions contemplated herein in the manner originally agreed.

 

13.6 Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and may not be assigned by IPEF, Columna or Manitex except for the right of Manitex under Article 4.4.

 

13.7 Notices and other communications. Unless otherwise provided for in any other provision of this Agreement, any notice, communication or other document required or permitted to be given under this Agreement shall be made in writing and in English and shall be deemed to have been duly and validly given: (a) in the case of notice sent by registered, certified or express mail or international courier, upon receipt of same, and (b) in the case of notice sent by telefax on the date and at the time of confirmation of dispatch; addressed, in all cases, as follows:

 

  (a) if to IPEF:

IPEF III HOLDINGS N.11 S.A. in liquidation

18, Rue de l’Eau

L – 1449 Lussemburgo

Grand Duchy of Luxembourg

fax +352 22 55 05 29

Attention Mr. Jean–Yves Nicolas

with copy to:

CMS Adonnino Ascoli & Casavola Scamoni

Via Agostino Depretis 86

00184 Rome

Telephone +39 06 47 8151

Fax +39 06 483755

Attention Mr. Paolo Bonolis

 

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IPEF III Holdings n° 11 S.A.

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  (b) if to Manitex to:

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455

Telephone: 001 (0) 708 237 2080

Fax: 001 708 430 1335

Attention: Messrs. David Lagevin and Andrew Rooke

with copy to:

Orrick Herrington & Sutcliffe

Corso Matteotti 10

20121 Milan

Telephone: 0039 02 45413800

Fax: 0039 02 45413801

Attention: Ms. Daniela Andreatta

 

  (c) if to Columna to:

Columna Holdings Limited

1 Royal Plaza, Royal Avenue,

St Peter Port, Guernsey GY1 2HL, The Channel Islands

Telefax: +44 (0) 1481 715219.

Attention of Mr. Andrew Carrè

with copy to:

CMS Adonnino Ascoli & Casavola Scamoni

Via Agostino Depretis 86

00184 Rome

Telephone +39 06 47 8151

Fax +39 06 483755

Attention Mr. Paolo Bonolis

or to such other address, facsimile no. or to such other person as any Party shall have last designated by notice to the other Party in accordance with the provisions of this Section 13.6.

 

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13. 7 Language; Counterparts. This Agreement shall be executed in the English language. This Agreement may be executed in counterparts, each of which shall be deemed to constitute an original but all of which shall constitute one and the same instrument. Any facsimile copy of another Party’s executed counterpart of this Agreement (or its signature page thereof) shall be deemed to be an executed original thereof.

ARTICLE 14

GOVERNING LAW AND JURISDICTION

 

14.1 Governing law. This Agreement shall be governed by, and construed and interpreted in accordance with, the Laws of Italy.

 

14.2 Jurisdiction. The Courts of Milan shall have exclusive jurisdiction in respect of any dispute arising out of this Agreement.

*****

As the content of the investment agreement copied above is consistent with our understandings, we execute this letter in sign of its unconditional and full acceptance.

Best regards

 

/s/ Emanuela Di Muzio

 

IPEF III Holdings n° 11 S.A.
Emanuela Di Muzio

[duly authorized proxy]

 

39

EX-10.2

EXHIBIT 10.2

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

Messrs.

Banca Popolare dell’Emilia Romagna S.C.

Via San Carlo n. 8/20

Modena

Bridgeview, 21 July 2014

Dear Sirs,

we have received your proposal to execute a debt assignment agreement, which we copy herein below:

- - - o 0 o - - -

“DEBTS ASSIGNMENT AGREEMENT

BETWEEN

Banca Popolare dell’Emilia Romagna S.C., with registered office in Modena, Via San Carlo n. 8/20 16, registered with the Register of Enterprises of Modena, Taxpayer’s Code and VAT No. 01153230360, duly represented by Emilio Cremonesi duly empowered (“BPER”):

AND

Manitex International Inc., a company established under the laws of Illinois (USA), with registered office in 9725 Industrial Drive, Bridgeview, Illinois (USA), duly represented by Andrew Rooke, president and chief operating officer authorized by the board of directors with resolution on 10 July 2014 (“Manitex”)

WHEREAS

 

(A) Pursuant to a loan agreement entered into on 30 January 2009 between, inter alios, BPER and PM Group S.p.A. (“PM”), BPER has granted and advanced to PM a loan for a maximum amount of Euro 76.500.000,00, secured by a mortgage and three pledges over shares of PM, Pilosio S.p.A. and Oil & Steel S.p.A. (as subsequently amended, even by the Debt Restructuring Agreement (as defined below)) (the “Loan Agreement”).

 

1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

(B) On 10 June 2014 the board of directors of PM resolved to call in the extraordinary shareholders meeting of PM on 30 June 2014 in first call and 30 July 2014 in second call (hereinafter the “PM’s Extraordinary Shareholders’ Meeting”) to resolve on the following actions (hereinafter collectively the “Capital Increases”):

 

  (i) a capital increase in PM for Euro 10,000,000.00 (ten million/00), with a share premium equal to Euro 7,927,316.00 (seven million nine hundred twenty seven thousand three hundred sixteen/00) and a non-repayable contribution equal to Euro 26,572,684.00 (twenty six million five hundred seventy two thousand six hundred eighty four/00) to cover losses,—conditional upon full subscription thereof (inscindibile)—to be subscribed for by the current shareholders and paid-in in cash and/or by way of set-off of due claims of the shareholders against PM (hereinafter the “Shareholders Capital Increase”); or, alternatively

 

  (ii) a capital increase in PM for Euro 10,000,000.00 (ten million/00), with a share premium equal to Euro 7,927,316.00 (seven million nine hundred twenty seven thousand three hundred sixteen/00) and a non-repayable contribution equal to 26,572,648.00 (twenty six million five hundred seventy two thousand six hundred eighty four/00) to cover losses—conditional upon full subscription thereof (inscindibile)—to be subscribed for by Manitex and paid–in in cash and/or by way of set-off of due claims of Manitex against PM (hereinafter the “Manitex Capital Increase”).

 

(C) On 10 June 2014 the board of directors of O&S (as defined below) resolved to call in the extraordinary shareholders meeting of O&S (as defined below) (hereinafter the “O&S Extraordinary Shareholders’ Meeting”) to resolve on a capital increase, divided into two tranches, one for Euro 1,000,000.00 (one million/00) with share premium of 2,500,996.00 (Two million five hundred thousand nine hundred ninety six/00) – conditional upon full subscription thereof (inscindibile)—and the second one, that can be subscribed also partially, for Euro 600,000.00 (six hundred thousand/00) in any case with a non-repayable contribution equal to 6,197,686.00 (Six million one hundred ninety seven thousand six hundred eighty six/00) to cover losses, to be paid-in in cash or by way of set-off of due claims of PM against O&S (hereinafter the “O&S Capital Increase”).

 

2

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

(D) On the date hereof, PM entered into with its banks a debt restructuring agreement (Accordo di Ristrutturazione) pursuant to Article 182-bis of the Italian Bankruptcy Law (as defined below) (the “Debt Restructuring Agreement”). The Debt Restructuring Agreement provides, inter alia, that BPER will assign without recourse to Manitex overdue debts under the Loan Agreement equal to Euro 5,000,000.00 (five million/00) arising from the Loan Agreement (the “BPER Debts”) against the payment of a price equal to Euro 1,500,000.00 (one million five hundred thousand/00).

 

(E) On the date hereof, Manitex entered into an investment agreement with the majority shareholder of PM (the “Investment Agreement”) in respect of the subscription by Manitex for the Manitex Capital Increase.

 

(F) On the date hereof, PM entered into with Polo Holdings S.à r.l. (“Polo Holdings”, a company 100% held by Columna Holdings Limited) a share purchase agreement (the “Pilosio Transfer Agreement”) in connection with the transfer of 100% of the equity interest in Pilosio (as defined below) and Polo Holdings paid Euro 1,000,000.00 (one million) into an escrow account.

 

(G) BPER and Manitex intend hereby to assign the BPER Debts to Manitex on the terms and conditions set out in this Agreement.

Now, therefore, it is agreed as follows.

 

1. DEFINITIONS and CONSTRUCTION

Recitals: The recitals of this Agreement are an integral and essential part thereof, with the value and force of covenants between the Parties.

Headings: The headings of the clauses and sub-clauses of this Agreement are for ease of reference only and shall not affect the interpretation of this Agreement.

 

3

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

Recitals and Clauses: Any reference in this Agreement to a “Recital” or a “Clause” shall be a reference to a recital or a clause of this Agreement, unless the contrary is indicated.

Laws, Regulations, Contracts and Documents: Any reference in this Agreement to a law, a regulation, a contract or a document shall be a reference to such law, regulation, contract or document as amended from time to time (and including after the date of this Agreement), unless the contrary is expressly indicated or anyway required by the context.

Definitions: In this Agreement, the following capitalised terms shall have the following meanings:

“Affiliate” means—with respect to any person an individual—corporation, partnership, firm, association, unincorporated organization or other entity directly or indirectly controlling, controlled by or under common control with such person.

“Agreement” means this debt assignment and share transfer agreement.

“Capital Increases” has the meaning ascribed thereto in Recital B.

“Civil Code” means the Italian civil code, as approved by the Royal Decree dated 16 March 1942, No. 262, as subsequently amended.

“Debt Restructuring Agreement” has the meaning ascribed thereto in Recital D.

“Effective Date” means the date on which all the conditions precedent set forth in Clause 5 have occurred or have been waived pursuant to Clause 5.2.

“Encumbrance” means any lien, pledge, charge, encumbrance or other security interest (or an agreement or commitment to create any of them), legal proceeding (such as seizure), easement, license, claim, other rights in-rem, including option rights, pre-emption rights, rights of first refusal or veto rights, restriction on title, rights under forward or preliminary sales, transfer or exercise of any other attribute of ownership or other restriction or limitation of any kind whatsoever.

 

4

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

“Investment Agreement” has the meaning ascribed thereto in Recital E.

“Italian Bankruptcy Law” or “IBR” means the Italian bankruptcy law set out by Regio Decreto 16 marzo 1942, n. 267 as subsequently amended.

“Manitex Capital Increase” has the meaning ascribed thereto in Recital B.

“O&S” means Oil&Steel s.p.a. with registered office at 22 Via Verdi, San Ceario sul Panaro (MO), a company 100% owned by PM.

“O&S Capital Increase” has the meaning ascribed thereto in Recital C.

“O&S Extraordinary Shareholders’ Meeting” has the meaning ascribed thereto in Recital C.

“Pilosio” means Pilosio S.p.A. with registered office at Via Fermi 45, Tavagnacco (UD).

“Pilosio Transfer Agreement” has the meaning ascribed thereto in Recital F.

“PM’s Extraordinary Shareholders’ Meeting” has the meaning ascribed thereto in Recital B.

“Shareholders Capital Increase” has the meaning ascribed thereto in Recital B.

“Signing Date” means the date on which this Agreement has been subscribed by all the Parties.

“BPER Debts” has the meaning ascribed thereto in Recital D.

 

2. ASSIGNMENT

 

2.1 Subject to the conditions precedent set out in Clause 5 below and to the payment of the price provided for by Clause 2.5, BPER hereby assigns to Manitex, which purchases, with effect as of the Effective Date, the BPER Debts.

 

5

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

2.2 Manitex undertakes to communicate to PM, Polo Holdings S.à.r.l. and to the Agent (as defined in the Debt Restructuring Agreement) that the assignment of the BPER Debts has been perfected within the day following to the day on which such assignment has been actually perfected.

 

2.3 The BPER Debts are assigned as unsecured monetary claims and, for the sake of clarity, all the relevant guaranties (mortgage and pledges) shall not be transferred to Manitex.

 

2.4 The transfer of the BPER Debts is made pro soluto (without recourse), it being understood that BPER does not give any representation and warranty on the solvency or the performance by PM or of its guarantors for any title of its payment obligations.

 

2.5 The price of the BPER Debts is agreed in an overall amount of Euro 1,500,000.00 (one million five hundred thousand/00) (the “Price”).

 

2.6 The Price shall be paid by Manitex to BPER in one installment on the Effective Date.

 

2.7 Manitex shall have the right to designate a person to become a party to this Agreement provided that such designation is made in compliance with the following provisions:

(a) such designation will be made in writing and sent together with the written acceptance of the person so designated by the Effective Date;

(b) such person will be an Affiliate of Manitex incorporated in Europe or the United Kingdom;

(c) Manitex will be jointly liable with the designated person without any condition of prior enforcement against the designated person (senza beneficio dell’escussione del terzo) for the correct execution of the transactions contemplated in this Agreement and such joint liability will be confirmed in the notice under paragraph (a) above.

 

3. REPRESENTATIONS AND WARRANTIES OF BPER

 

3.1 BPER hereby makes the following representations and warranties to Manitex, each of which shall be true and correct also on the Effective Date:

 

  3.1.1 BPER is a bank duly incorporated, validly existing and in good standing under the laws of Italy;

 

6

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

  3.1.2 all corporate acts and other proceedings required to be taken by or on behalf of BPER to authorize BPER to enter into and to carry out this Agreement have been duly and properly taken, and this Agreement has been duly executed and delivered by BPER and constitutes the valid and binding obligation of BPER enforceable against BPER in accordance with its terms;

 

  3.1.3 no application to, or filing with, or consent, authorization or approval of, or license, permit, registration, declaration or exemption by, any governmental or public body or authority is required of BPER under Italian law in connection with the execution and performance of this Agreement;

 

  3.1.4 the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not conflict with, or result in the breach of, or constitute a default under, the articles of incorporation or the by-laws of BPER or the Loan Agreement;

 

  3.1.5 BPER is the exclusive owner of the BPER Debts that are clear and free from any Encumbrance and BPER has the full right, power and authority to sell, assign, transfer and deliver the BPER Debts in accordance with the terms of this Agreement, also due to the consent, given by the Company and by BPER pursuant to the Debt Restructuring Agreement, to the assignment hereof;

 

  3.1.6 on the Effective Date, the BPER Debts will be freely transferable under the Loan Agreement, also due to the consent, given by the Company and by BPER pursuant to the Debt Restructuring Agreement and to the assignment hereof;

 

  3.1.7 the BPER Debts are valid and existing pursuant to article 1266 of the Civil Code and, pursuant to Paragraph 5.1.2 of the Debt Restructuring Agreement will be due and payable on the Effective Date, including without limitation the BPER Debts which are not yet due and payable on the date hereof;

 

7

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

  3.1.8 the principal amount of the BPER Debts on the date hereof is and will be on the Effective Date equal to Euro 5,000,000.00 (five million/00);

 

  3.1.9 the Loan Agreement is valid and enforceable and neither the BPER Debts nor the Loan Agreement are subject to any objection, action or claim of whatever nature by PM and/or any dispute, legal proceedings, arbitration or legal action pending, imminent or threatened by PM or any third party;

 

  3.1.10 BPER has correctly, completely and diligently kept and shall correctly, completely and diligently keep until the Effective Date the books, records, data and documents regarding the BPER Debts in compliance with all requirements of applicable Italian laws and regulations;

 

  3.1.11 the transactions described in this Agreement do not violate any applicable Italian laws;

 

  3.1.12 BPER has not 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 Manitex or any of its Affiliates.

 

3.2 BPER shall indemnify and hold Manitex harmless in respect of all losses or damages incurred or suffered by Manitex as a result of any representations and warranties not being true and correct and/or the breach by BPER of any covenants and/or obligations contained in this Agreement.

 

4. REPRESENTATIONS AND WARRANTIES AND OTHER UNDERTAKINGS REGARDING THE MANITEX SHARES

 

4.1 Manitex hereby makes the following representations and warranties to BPER, each of which shall be true and correct also on the Effective Date:

 

8

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

  4.1.1 Manitex is a corporation duly incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation;

 

  4.1.2 all corporate acts and other proceedings required to be taken by or on behalf of Manitex to authorize Manitex to enter into and to carry out this Agreement have been duly and properly taken, and this Agreement has been duly executed and delivered by Manitex and constitutes the valid and binding obligation of Manitex enforceable against Manitex in accordance with its terms;

 

  4.1.3 no application to, or filing with, or consent, authorization or approval of, or license, permit, registration, declaration or exemption by, any governmental or public body or authority is required of Manitex in connection with the execution and performance of this Agreement;

 

  4.1.4 the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not conflict with, or result in the breach of, or constitute a default under, the articles of incorporation or the by-laws of Manitex;

 

  4.1.5 Manitex has not 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 BPER or any of its Affiliates;

 

  4.1.6 Manitex acknowledges that its participation in the transactions contemplated by this Agreement may involve tax consequences and that BPER has not provided to Manitex any tax advice or information related thereto. Manitex acknowledges that it must retain its own professional advisors to evaluate the tax and other consequences of the payment of the Price.

 

4.2 Manitex shall indemnify and hold BPER harmless in respect of all losses or damages incurred or suffered by BPER as a result of any representations and warranties not being true and correct and/or the breach by Manitex of any covenants and/or obligations contained in this Agreement.

 

9

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

4.3 Manitex (i) shall use the BPER Debts to pay-in by way of set-off, for an equal amount, the Manitex Capital Increase; and (ii) shall not claim for the payment of the BPER Debts and/or accept payments and/or enforce them any way other than as provided in paragraph (i).

 

5. CONDITIONS PRECEDENT

 

5.1 The assignment shall become effective subject to the occurrence, not later than 31 January 2015, of the following conditions precedent:

 

  5.1.1 the competent court will have confirmed the Debt Restructuring Agreement pursuant to article 182-bis of the IBL (omologazione dell’accordo di ristrutturazione dei debiti);

 

  5.1.2 the board of directors of PM will have confirmed in writing to Manitex that the decision of the court confirming the Debt Restructuring Agreement pursuant to article 182bis of the IBL has not been timely challenged under article 182bis, paragraph 5, of the IBL or, alternatively, that any challenge have been rejected by the competent court;

 

  5.1.3 PM’s Extraordinary Shareholders’ Meeting will have approved the Capital Increases in accordance with the terms and conditions set out in Recital B;

 

  5.1.4 the O&S Extraordinary Shareholders’ Meeting will have approved the O&S Capital Increase in accordance with the terms and conditions set out in Recital C;

 

  5.1.5 the shareholders meeting of PM and O&S will have approved the respective financial statements as at 31 December 2013 with the same contents of the draft financial statements attached hereto as Annexes (A) and (B);

 

10

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

  5.1.6 PM will have approved the audited consolidated financial statements of PM as at 31 December 2013 and the auditing company of PM will have released a clean opinion thereon except for possible qualifications in respect of PM’s going concern;

 

  5.1.7 the auditing company of PM will have released a clean opinion on the consolidated financial statements of PM (excluding Pilosio and its subsidiaries), including (i) the statements of income, comprehensive income, cash flows and changes in equity for the three years ended respectively on 31 December 2011, 31 December 2012 and 31 December 2013 and (ii) the balance sheets for the two years ended on 31 December 2012 and 31 December 2013 (the “PM Group carve-out year-end consolidated financial statements”) except for possible qualifications in respect of PM’s going concern;

 

  5.1.8 the Shareholders Capital Increase (offered in preemption to the current shareholders of PM) shall not have been subscribed in full within the deadline set by the resolution of the PM’s Extraordinary Shareholders Meeting;

 

  5.1.9 the directors of PM and O&S currently in office will have handed in their resignations to take effect as of the date of execution of the Manitex Capital Increase;

 

  5.1.10 the board of directors of PM and the board of directors of O&S will have convened the respective ordinary shareholders meeting on the date scheduled for the execution of the Manitex Capital Increase for the purpose of electing new directors and statutory auditors (if any) in lieu of those leaving the office;

 

  5.1.11 no order, injunction, judgment or decree issued by any governmental or judicial authority or other legal restraint or prohibition preventing the subscription for the Manitex Capital Increase will be in effect;

 

  5.1.12 none of the following events, changes or circumstances shall have occurred prior to the Effective Date:

a. a disruption in the financial, banking, lending, debt or capital markets or in securities settlement or clearance services in the United States preventing Manitex from subscribing and/or completing the Manitex Capital Increase;

 

11

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

b. suspension or material limitation in trading in securities in general preventing Manitex from subscribing and/or completing the Manitex Capital Increase;

c. a Material Adverse Effect (Effetto Pregiudizievole Significativo) as defined in the Debt Restructuring Agreement, unless cured by the Effective Date;

 

  5.1.13 Manitex and BPER will have entered into an assignment agreement for the transfer from BPER to Manitex of debts towards PM for an amount of Euro 8,750,000.00 (eight million seven hundred fifty thousand/00), against the issuance of 430,000 Manitex shares to BPER;

 

  5.1.14 Manitex and BPER will have entered into (i) an assignment agreement corresponding to this Agreement for the transfer from BPER to Manitex of debts towards PM for an amount of Euro 10,000,000.00 (ten million/00) against the payment of Euro 1,500,000.00 (one million five hundred thousand/00) and (ii) an assignment agreement for the transfer from BPER to Manitex of debts towards PM for an amount of Euro 8,750,000.00 (eight million seven hundred fifty thousand/00), against the issuance of 430,000 Manitex shares to BPER.

 

5.3 Manitex and BPER may at any time jointly (and not severally) waive in whole or in part and conditionally or unconditionally the conditions set out in article 6.1 by written notice to the other parties.

 

5.4 If any of the conditions precedent under article 5.1 has not occurred or been waived on or prior to 31 January 2015, this Agreement shall be definitively without effect.

 

5.5 Without prejudice to the provisions under Clause 5.4, Manitex will become the owner of the BPER Debts when, on the Effective Date, the Price will be paid.

 

12

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

6. CONDITIONS SUBSEQUENT

 

6.1 This Agreement shall terminate automatically and with retroactive effects pursuant to Article 1353 of the Italian Civil Code in the event that the Manitex Capital Increase has not been fully underwritten and paid in by Manitex by and no later than five days from the Effective Date.

 

7. PM ACCEPTANCE

 

7.1 Manitex, pursuant to Articles 1264 and 1265 of the Italian Civil Code, shall notify the assignment with legal date of the BPER Debts provided for in this Agreement to PM or shall procure that PM accepts with legal date the assignment of the BPER Debts provided for in this Agreement.

 

8. TAXES, COSTS AND EXPENSES

 

8.1 Manitex shall bear all the taxes, costs and expenses incurred in connection with the entering into, execution, or amendment of this Agreement other then advisory fees that shall be borne by each party.

 

9. GOVERNING LAW AND JURISDICTION

 

9.1 This agreement is governed by and shall be construed in accordance with the laws of Italy, without prejudice to any mandatory provision under US law applicable to the issuance of the Manitex Shares.

 

9.2 The Courts of Milan shall have exclusive jurisdiction in respect of any dispute arising out of this agreement.

 

10. ATTACHMENTS

Annex (A)         draft financial statements of PM

Annex (B)         draft financial statements of O&S”

- - - o 0 o - - -

We execute this letter in sign of acceptance of the debt assignment agreement copied above.

 

13

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

Best regards

 

/s/ Andrew M. Rooke

Manitex International Inc.

Andrew Rooke

[President and COO]

 

14

Messrs.

Manitex International Inc.

9725 Industrial Drive,

Bridgeview, Illinois, USA

Modena (Italy), 21 July 2014

Dear Sirs,

We refer to our previous conversations and we hereby propose you the following:

DEBTS ASSIGNMENT AGREEMENT

BETWEEN

Banca Popolare dell’Emilia Romagna S.C., with registered office in Modena, Via San Carlo n. 8/20 16, registered with the Register of Enterprises of Modena, Taxpayer’s Code and VAT No. 01153230360, duly represented by Emilio Cremonesi duly empowered (“BPER”):

AND

Manitex International Inc., a company established under the laws of Illinois (USA), with registered office in 9725 Industrial Drive, Bridgeview, Illinois (USA), duly represented by Andrew Rooke, president and chief operating officer authorized by the board of directors with resolution on 10 July 2014 (“Manitex”)

WHEREAS

 

(A) Pursuant to a loan agreement entered into on 30 January 2009 between, inter alios, BPER and PM Group S.p.A. (“PM”), BPER has granted and advanced to PM a loan for a maximum amount of Euro 76.500.000,00, secured by a mortgage and three pledges over shares of PM, Pilosio S.p.A. and Oil & Steel S.p.A. (as subsequently amended, even by the Debt Restructuring Agreement (as defined below)) (the “Loan Agreement”).

 

1

(B) On 10 June 2014 the board of directors of PM resolved to call in the extraordinary shareholders meeting of PM on 30 June 2014 in first call and 30 July 2014 in second call (hereinafter the “PM’s Extraordinary Shareholders’ Meeting”) to resolve on the following actions (hereinafter collectively the “Capital Increases”):

 

  (i) a capital increase in PM for Euro 10,000,000.00 (ten million/00), with a share premium equal to Euro 7,927,316.00 (seven million nine hundred twenty seven thousand three hundred sixteen/00) and a non-repayable contribution equal to Euro 26,572,684.00 (twenty six million five hundred seventy two thousand six hundred eighty four/00) to cover losses,—conditional upon full subscription thereof (inscindibile)—to be subscribed for by the current shareholders and paid-in in cash and/or by way of set-off of due claims of the shareholders against PM (hereinafter the “Shareholders Capital Increase”); or, alternatively

 

  (ii) a capital increase in PM for Euro 10,000,000.00 (ten million /00), with a share premium equal to Euro 7,927,316.00 (seven million nine hundred twenty seven thousand three hundred sixteen/00) and a non-repayable contribution equal to 26,572,648.00 (twenty six million five hundred seventy two thousand six hundred eighty four/00) to cover losses—conditional upon full subscription thereof (inscindibile)—to be subscribed for by Manitex and paid–in in cash and/or by way of set-off of due claims of Manitex against PM (hereinafter the “Manitex Capital Increase”).

 

(C) On 10 June 2014 the board of directors of O&S (as defined below) resolved to call in the extraordinary shareholders meeting of O&S (as defined below) (hereinafter the “O&S Extraordinary Shareholders’ Meeting”) to resolve on a capital increase, divided into two tranches, one for Euro 1,000,000.00 (one million/00) with share premium of 2,500,996.00 (Two million five hundred thousand nine hundred ninety six/00) – conditional upon full subscription thereof (inscindibile)—and the second one, that can be subscribed also partially, for Euro 600,000.00 (six hundred thousand/00) in any case with a non-repayable contribution equal to 6,197,686.00 (Six million one hundred ninety seven thousand six hundred eighty six/00) to cover losses, to be paid-in in cash or by way of set-off of due claims of PM against O&S (hereinafter the “O&S Capital Increase”).

 

2

(D) On the date hereof, PM entered into with its banks a debt restructuring agreement (Accordo di Ristrutturazione) pursuant to Article 182-bis of the Italian Bankruptcy Law (as defined below) (the “Debt Restructuring Agreement”). The Debt Restructuring Agreement provides, inter alia, that BPER will assign without recourse to Manitex overdue debts under the Loan Agreement equal to Euro 5,000,000.00 (five million/00) arising from the Loan Agreement (the “BPER Debts”) against the payment of a price equal to Euro 1,500,000.00 (one million five hundred thousand/00).

 

(E) On the date hereof, Manitex entered into an investment agreement with the majority shareholder of PM (the “Investment Agreement”) in respect of the subscription by Manitex for the Manitex Capital Increase.

 

(F) On the date hereof, PM entered into with Polo Holdings S.à r.l. (“Polo Holdings”, a company 100% held by Columna Holdings Limited) a share purchase agreement (the “Pilosio Transfer Agreement”) in connection with the transfer of 100% of the equity interest in Pilosio (as defined below) and Polo Holdings paid Euro 1,000,000.00 (one million) into an escrow account.

 

(G) BPER and Manitex intend hereby to assign the BPER Debts to Manitex on the terms and conditions set out in this Agreement.

Now, therefore, it is agreed as follows.

 

1. DEFINITIONS and CONSTRUCTION

Recitals: The recitals of this Agreement are an integral and essential part thereof, with the value and force of covenants between the Parties.

Headings: The headings of the clauses and sub-clauses of this Agreement are for ease of reference only and shall not affect the interpretation of this Agreement.

Recitals and Clauses: Any reference in this Agreement to a “Recital” or a “Clause” shall be a reference to a recital or a clause of this Agreement, unless the contrary is indicated.

 

3

Laws, Regulations, Contracts and Documents: Any reference in this Agreement to a law, a regulation, a contract or a document shall be a reference to such law, regulation, contract or document as amended from time to time (and including after the date of this Agreement), unless the contrary is expressly indicated or anyway required by the context.

Definitions: In this Agreement, the following capitalised terms shall have the following meanings:

“Affiliate” means—with respect to any person an individual—corporation, partnership, firm, association, unincorporated organization or other entity directly or indirectly controlling, controlled by or under common control with such person.

“Agreement” means this debt assignment and share transfer agreement.

“Capital Increases” has the meaning ascribed thereto in Recital B.

“Civil Code” means the Italian civil code, as approved by the Royal Decree dated 16 March 1942, No. 262, as subsequently amended.

“Debt Restructuring Agreement” has the meaning ascribed thereto in Recital D.

“Effective Date” means the date on which all the conditions precedent set forth in Clause 5 have occurred or have been waived pursuant to Clause 5.2.

“Encumbrance” means any lien, pledge, charge, encumbrance or other security interest (or an agreement or commitment to create any of them), legal proceeding (such as seizure), easement, license, claim, other rights in-rem, including option rights, pre-emption rights, rights of first refusal or veto rights, restriction on title, rights under forward or preliminary sales, transfer or exercise of any other attribute of ownership or other restriction or limitation of any kind whatsoever.

“Investment Agreement” has the meaning ascribed thereto in Recital E.

 

4

“Italian Bankruptcy Law” or “IBR” means the Italian bankruptcy law set out by Regio Decreto 16 marzo 1942, n. 267 as subsequently amended.

“Manitex Capital Increase” has the meaning ascribed thereto in Recital B.

“O&S” means Oil&Steel s.p.a. with registered office at 22 Via Verdi, San Ceario sul Panaro (MO), a company 100% owned by PM.

“O&S Capital Increase” has the meaning ascribed thereto in Recital C.

“O&S Extraordinary Shareholders’ Meeting” has the meaning ascribed thereto in Recital C.

“Pilosio” means Pilosio S.p.A. with registered office at Via Fermi 45, Tavagnacco (UD).

“Pilosio Transfer Agreement” has the meaning ascribed thereto in Recital F.

“PM’s Extraordinary Shareholders’ Meeting” has the meaning ascribed thereto in Recital B.

“Shareholders Capital Increase” has the meaning ascribed thereto in Recital B.

“Signing Date” means the date on which this Agreement has been subscribed by all the Parties.

“BPER Debts” has the meaning ascribed thereto in Recital D.

 

2. ASSIGNMENT

 

2.1 Subject to the conditions precedent set out in Clause 5 below and to the payment of the price provided for by Clause 2.5, BPER hereby assigns to Manitex, which purchases, with effect as of the Effective Date, the BPER Debts.

 

2.2 Manitex undertakes to communicate to PM, Polo Holdings S.à.r.l. and to the Agent (as defined in the Debt Restructuring Agreement) that the assignment of the BPER Debts has been perfected within the day following to the day on which such assignment has been actually perfected.

 

5

2.3 The BPER Debts are assigned as unsecured monetary claims and, for the sake of clarity, all the relevant guaranties (mortgage and pledges) shall not be transferred to Manitex.

 

2.4 The transfer of the BPER Debts is made pro soluto (without recourse), it being understood that BPER does not give any representation and warranty on the solvency or the performance by PM or of its guarantors for any title of its payment obligations.

 

2.5 The price of the BPER Debts is agreed in an overall amount of Euro 1,500,000.00 (one million five hundred thousand/00) (the “Price”).

 

2.6 The Price shall be paid by Manitex to BPER in one installment on the Effective Date.

 

2.7 Manitex shall have the right to designate a person to become a party to this Agreement provided that such designation is made in compliance with the following provisions:

(a) such designation will be made in writing and sent together with the written acceptance of the person so designated by the Effective Date;

(b) such person will be an Affiliate of Manitex incorporated in Europe or the United Kingdom;

(c) Manitex will be jointly liable with the designated person without any condition of prior enforcement against the designated person (senza beneficio dell’escussione del terzo) for the correct execution of the transactions contemplated in this Agreement and such joint liability will be confirmed in the notice under paragraph (a) above.

 

3. REPRESENTATIONS AND WARRANTIES OF BPER

 

3.1 BPER hereby makes the following representations and warranties to Manitex, each of which shall be true and correct also on the Effective Date:

 

  3.1.1 BPER is a bank duly incorporated, validly existing and in good standing under the laws of Italy;

 

  3.1.2 all corporate acts and other proceedings required to be taken by or on behalf of BPER to authorize BPER to enter into and to carry out this Agreement have been duly and properly taken, and this Agreement has been duly executed and delivered by BPER and constitutes the valid and binding obligation of BPER enforceable against BPER in accordance with its terms;

 

6

  3.1.3 no application to, or filing with, or consent, authorization or approval of, or license, permit, registration, declaration or exemption by, any governmental or public body or authority is required of BPER under Italian law in connection with the execution and performance of this Agreement;

 

  3.1.4 the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not conflict with, or result in the breach of, or constitute a default under, the articles of incorporation or the by-laws of BPER or the Loan Agreement;

 

  3.1.5 BPER is the exclusive owner of the BPER Debts that are clear and free from any Encumbrance and BPER has the full right, power and authority to sell, assign, transfer and deliver the BPER Debts in accordance with the terms of this Agreement, also due to the consent, given by the Company and by BPER pursuant to the Debt Restructuring Agreement, to the assignment hereof;

 

  3.1.6 on the Effective Date, the BPER Debts will be freely transferable under the Loan Agreement, also due to the consent, given by the Company and by BPER pursuant to the Debt Restructuring Agreement and to the assignment hereof;

 

  3.1.7 the BPER Debts are valid and existing pursuant to article 1266 of the Civil Code and, pursuant to Paragraph 5.1.2 of the Debt Restructuring Agreement will be due and payable on the Effective Date, including without limitation the BPER Debts which are not yet due and payable on the date hereof;

 

  3.1.8 the principal amount of the BPER Debts on the date hereof is and will be on the Effective Date equal to Euro 5,000,000.00 (five million/00);

 

  3.1.9 the Loan Agreement is valid and enforceable and neither the BPER Debts nor the Loan Agreement are subject to any objection, action or claim of whatever nature by PM and/or any dispute, legal proceedings, arbitration or legal action pending, imminent or threatened by PM or any third party;

 

7

  3.1.10 BPER has correctly, completely and diligently kept and shall correctly, completely and diligently keep until the Effective Date the books, records, data and documents regarding the BPER Debts in compliance with all requirements of applicable Italian laws and regulations;

 

  3.1.11 the transactions described in this Agreement do not violate any applicable Italian laws;

 

  3.1.12 BPER has not 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 Manitex or any of its Affiliates.

 

3.2 BPER shall indemnify and hold Manitex harmless in respect of all losses or damages incurred or suffered by Manitex as a result of any representations and warranties not being true and correct and/or the breach by BPER of any covenants and/or obligations contained in this Agreement.

 

4. REPRESENTATIONS AND WARRANTIES AND OTHER UNDERTAKINGS REGARDING THE MANITEX SHARES

 

4.1 Manitex hereby makes the following representations and warranties to BPER, each of which shall be true and correct also on the Effective Date:

 

  4.1.1 Manitex is a corporation duly incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation;

 

  4.1.2 all corporate acts and other proceedings required to be taken by or on behalf of Manitex to authorize Manitex to enter into and to carry out this Agreement have been duly and properly taken, and this Agreement has been duly executed and delivered by Manitex and constitutes the valid and binding obligation of Manitex enforceable against Manitex in accordance with its terms;

 

8

  4.1.3 no application to, or filing with, or consent, authorization or approval of, or license, permit, registration, declaration or exemption by, any governmental or public body or authority is required of Manitex in connection with the execution and performance of this Agreement;

 

  4.1.4 the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not conflict with, or result in the breach of, or constitute a default under, the articles of incorporation or the by-laws of Manitex;

 

  4.1.5 Manitex has not 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 BPER or any of its Affiliates;

 

  4.1.6 Manitex acknowledges that its participation in the transactions contemplated by this Agreement may involve tax consequences and that BPER has not provided to Manitex any tax advice or information related thereto. Manitex acknowledges that it must retain its own professional advisors to evaluate the tax and other consequences of the payment of the Price.

 

4.2 Manitex shall indemnify and hold BPER harmless in respect of all losses or damages incurred or suffered by BPER as a result of any representations and warranties not being true and correct and/or the breach by Manitex of any covenants and/or obligations contained in this Agreement.

 

4.3 Manitex (i) shall use the BPER Debts to pay-in by way of set-off, for an equal amount, the Manitex Capital Increase; and (ii) shall not claim for the payment of the BPER Debts and/or accept payments and/or enforce them any way other than as provided in paragraph (i).

 

9

5. CONDITIONS PRECEDENT

 

5.1 The assignment shall become effective subject to the occurrence, not later than 31 January 2015, of the following conditions precedent:

 

  5.1.1 the competent court will have confirmed the Debt Restructuring Agreement pursuant to article 182-bis of the IBL (omologazione dell’accordo di ristrutturazione dei debiti);

 

  5.1.2 the board of directors of PM will have confirmed in writing to Manitex that the decision of the court confirming the Debt Restructuring Agreement pursuant to article 182bis of the IBL has not been timely challenged under article 182bis, paragraph 5, of the IBL or, alternatively, that any challenge have been rejected by the competent court;

 

  5.1.3 PM’s Extraordinary Shareholders’ Meeting will have approved the Capital Increases in accordance with the terms and conditions set out in Recital B;

 

  5.1.4 the O&S Extraordinary Shareholders’ Meeting will have approved the O&S Capital Increase in accordance with the terms and conditions set out in Recital C;

 

  5.1.5 the shareholders meeting of PM and O&S will have approved the respective financial statements as at 31 December 2013 with the same contents of the draft financial statements attached hereto as Annexes (A) and (B);

 

  5.1.6 PM will have approved the audited consolidated financial statements of PM as at 31 December 2013 and the auditing company of PM will have released a clean opinion thereon except for possible qualifications in respect of PM’s going concern;

 

  5.1.7 the auditing company of PM will have released a clean opinion on the consolidated financial statements of PM (excluding Pilosio and its subsidiaries), including (i) the statements of income, comprehensive income, cash flows and changes in equity for the three years ended respectively on 31 December 2011, 31 December 2012 and 31 December 2013 and (ii) the balance sheets for the two years ended on 31 December 2012 and 31 December 2013 (the “PM Group carve-out year-end consolidated financial statements”) except for possible qualifications in respect of PM’s going concern;

 

10

  5.1.8 the Shareholders Capital Increase (offered in preemption to the current shareholders of PM) shall not have been subscribed in full within the deadline set by the resolution of the PM’s Extraordinary Shareholders Meeting;

 

  5.1.9 the directors of PM and O&S currently in office will have handed in their resignations to take effect as of the date of execution of the Manitex Capital Increase;

 

  5.1.10 the board of directors of PM and the board of directors of O&S will have convened the respective ordinary shareholders meeting on the date scheduled for the execution of the Manitex Capital Increase for the purpose of electing new directors and statutory auditors (if any) in lieu of those leaving the office;

 

  5.1.11 no order, injunction, judgment or decree issued by any governmental or judicial authority or other legal restraint or prohibition preventing the subscription for the Manitex Capital Increase will be in effect;

 

  5.1.12 none of the following events, changes or circumstances shall have occurred prior to the Effective Date:

a. a disruption in the financial, banking, lending, debt or capital markets or in securities settlement or clearance services in the United States preventing Manitex from subscribing and/or completing the Manitex Capital Increase;

b. suspension or material limitation in trading in securities in general preventing Manitex from subscribing and/or completing the Manitex Capital Increase;

c. a Material Adverse Effect (Effetto Pregiudizievole Significativo) as defined in the Debt Restructuring Agreement, unless cured by the Effective Date;

 

  5.1.13 Manitex and BPER will have entered into an assignment agreement for the transfer from BPER to Manitex of debts towards PM for an amount of Euro 8,750,000.00 (eight million seven hundred fifty thousand/00), against the issuance of 430,000 Manitex shares to BPER;

 

11

  5.1.14 Manitex and UC will have entered into (i) an assignment agreement corresponding to this Agreement for the transfer from UC to Manitex of debts towards PM for an amount of Euro 10,000,000.00 (ten million/00) against the payment of Euro 1,500,000.00 (one million five hundred thousand/00) and (ii) an assignment agreement for the transfer from BPER to Manitex of debts towards PM for an amount of Euro 8,750,000.00 (eight million seven hundred fifty thousand/00), against the issuance of 430,000 Manitex shares to BPER.

 

5.3 Manitex and BPER may at any time jointly (and not severally) waive in whole or in part and conditionally or unconditionally the conditions set out in article 6.1 by written notice to the other parties.

 

5.4 If any of the conditions precedent under article 5.1 has not occurred or been waived on or prior to 31 January 2015, this Agreement shall be definitively without effect.

 

5.5 Without prejudice to the provisions under Clause 5.4, Manitex will become the owner of the BPER Debts when, on the Effective Date, the Price will be paid.

 

6. CONDITIONS SUBSEQUENT

 

6.1 This Agreement shall terminate automatically and with retroactive effects pursuant to Article 1353 of the Italian Civil Code in the event that the Manitex Capital Increase has not been fully underwritten and paid in by Manitex by and no later than five days from the Effective Date.

 

7. PM ACCEPTANCE

 

7.1 Manitex, pursuant to Articles 1264 and 1265 of the Italian Civil Code, shall notify the assignment with legal date of the BPER Debts provided for in this Agreement to PM or shall procure that PM accepts with legal date the assignment of the BPER Debts provided for in this Agreement.

 

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8. TAXES, COSTS AND EXPENSES

 

8.1 Manitex shall bear all the taxes, costs and expenses incurred in connection with the entering into, execution, or amendment of this Agreement other then advisory fees that shall be borne by each party.

 

9. GOVERNING LAW AND JURISDICTION

 

9.1 This agreement is governed by and shall be construed in accordance with the laws of Italy, without prejudice to any mandatory provision under US law applicable to the issuance of the Manitex Shares.

 

9.2 The Courts of Milan shall have exclusive jurisdiction in respect of any dispute arising out of this agreement.

 

10. ATTACHMENTS

Annex (A)        draft financial statements of PM

Annex (B)        draft financial statements of O&S

# # #

If you agree with this proposal, please return to us this letter duly signed by way of acceptance thereof.

Kind regards,

 

/s/ Emilio Cremonesi

Banca Popolare dell’Emilia Romagna S.C.

 

13

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

Messrs.

Banca Popolare dell’Emilia Romagna S.C.

Via San Carlo n. 8/20

Modena

Bridgeview, 21 July 2014

Dear Sirs,

we have received your proposal to execute a debt assignment agreement against shares, which we copy herein below:

- - - o 0 o - - -

“TRANSFER AGREEMENT OF BPER DEBTS AGAINST MANITEX SHARES

BETWEEN

Banca Popolare dell’Emilia Romagna S.C., with registered office in Modena, Via San Carlo n. 8/20 16, registered with the Register of Enterprises of Modena, Taxpayer’s Code and VAT No. 01153230360, duly represented by Emilio Cremonesi duly empowered (“BPER”);

AND

Manitex International Inc., a company established under the laws of Illinois (USA), with registered office in 9725 Industrial Drive, Bridgeview, Illinois (USA), duly represented by Andrew Rooke, president and chief operating officer authorized by the board of directors with resolution on 10 July 2014 (“Manitex”);

WHEREAS

 

(A) Pursuant to a loan agreement entered into on 30 January 2009 between, inter alios, BPER and PM Group S.p.A. (“PM”), BPER has granted and advanced to PM a loan for a maximum amount of Euro 76.500.000,00, secured by a mortgage and three pledges over shares of PM, Pilosio S.p.A. and Oil & Steel S.p.A. (as subsequently amended, even by the Debt Restructuring Agreement (as defined below)) (the “Loan Agreement”).

 

1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

(B) On 10 June 2014 the board of directors of PM resolved to call in the extraordinary shareholders meeting of PM on 30 June 2014 in first call and 30 July 2014 in second call (hereinafter the “PM’s Extraordinary Shareholders’ Meeting”) to resolve on the following actions (hereinafter collectively the “Capital Increases”):

 

  (i) a capital increase in PM for Euro 10,000,000.00 (ten million/00), with a share premium equal to Euro 7,927,316.00 (seven million nine hundred twenty seven thousand three hundred sixteen/00) and a non-repayable contribution equal to Euro 26,572,684.00 (twenty six million five hundred seventy two thousand six hundred eighty four/00) to cover losses,—conditional upon full subscription thereof (inscindibile)—to be subscribed for by the current shareholders and paid - in in cash and/or by way of set-off of due claims of the shareholders against PM (hereinafter the “Shareholders Capital Increase”); or, alternatively

 

  (ii) a capital increase in PM for Euro 10,000,000.00 (ten million/00), with a share premium equal to Euro 7,927,316.00 (seven million nine hundred twenty seven thousand three hundred sixteen/00) and a non-repayable contribution equal to 26,572,648.00 (twenty six million five hundred seventy two thousand six hundred eighty four/00) to cover losses—conditional upon full subscription thereof (inscindibile)—to be subscribed for by Manitex and paid-in in cash and/or by way of set-off of due claims of Manitex against PM (hereinafter the “Manitex Capital Increase”).

 

(C) On 10 June 2014 the board of directors of O&S (as defined below) resolved to call in the extraordinary shareholders meeting of O&S (as defined below) (hereinafter the “O&S Extraordinary Shareholders’ Meeting”) to resolve on a capital increase, divided into two tranches, one for Euro 1,000,000.00 (one million/00) with share premium of 2,500,996.00 (Two million five hundred thousand nine hundred ninety six/00) – conditional upon full subscription thereof (inscindibile)—and the second one, that can be subscribed also partially, for Euro 600,000.00 (six hundred thousand/00) in any case with a non-repayable contribution equal to 6,197,686.00 (Six million one hundred ninety seven thousand six hundred eighty six/00) to cover losses, to be paid-in in cash or by way of set-off of due claims of PM against O&S (hereinafter the “O&S Capital Increase”).

 

2

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

(D) On the date hereof, PM entered into with its banks a debt restructuring agreement (Accordo di Ristrutturazione) pursuant to Article 182-bis of the Italian Bankruptcy Law (as defined below) (the “Debt Restructuring Agreement”). The Debt Restructuring Agreement provides, inter alia, that BPER will assign without recourse to Manitex overdue debts under the Loan Agreement equal to Euro 8,750,000.00 (eight million seven hundred fifty thousand/00) arising from the Loan Agreement (the “BPER Debts”) against the issuance by Manitex to BPER of the Manitex Shares (as defined below).

 

(E) On the date hereof, Manitex entered into an investment agreement with the majority shareholder of PM (the “Investment Agreement”) in respect of the subscription by Manitex for the Manitex Capital Increase.

 

(F) On the date hereof, PM entered into with Polo Holdings S.à r.l. (“Polo Holdings”, a company 100% held by Columna Holdings Limited) a share purchase agreement (the “Pilosio Transfer Agreement”) in connection with the transfer of 100% of the equity interest in Pilosio (as defined below) and Polo Holdings paid Euro 1,000,000.00 (one million) into an escrow account.

 

(G) BPER and Manitex intend hereby: (i) for BPER to assign the BPER Debts to Manitex; and (ii) for Manitex to issue the Manitex Shares (as defined below) to BPER, in each case, on the terms and conditions set out in this Agreement.

Now, therefore, it’s agreed as follows:

 

1. DEFINITIONS and CONSTRUCTION

Recitals: The recitals of this Agreement are an integral and essential part thereof, with the value and force of covenants between the Parties.

Headings: The headings of the clauses and sub-clauses of this Agreement are for ease of reference only and shall not affect the interpretation of this Agreement.

 

3

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

Recitals and Clauses: Any reference in this Agreement to a “Recital” or a “Clause” shall be a reference to a recital or a clause of this Agreement, unless the contrary is indicated.

Laws, Regulations, Contracts and Documents: Any reference in this Agreement to a law, a regulation, a contract or a document shall be a reference to such law, regulation, contract or document as amended from time to time (and including after the date of this Agreement), unless the contrary is expressly indicated or anyway required by the context.

Definitions: In this Agreement, the following capitalised terms shall have the following meanings:

“Affiliate” means—with respect to any person an individual—corporation, partnership, firm, association, unincorporated organization or other entity directly or indirectly controlling, controlled by or under common control with such person.

“Agreement” means this debt assignment and share transfer agreement.

“Capital Increases” has the meaning ascribed thereto in Recital B.

“Civil Code” means the Italian civil code, as approved by the Royal Decree dated 16 March 1942, No. 262, as subsequently amended.

“Debt Restructuring Agreement” has the meaning ascribed thereto in Recital D.

“Effective Date” means the date on which all the conditions precedent set forth in Clause 6 have occurred or have been waived pursuant to Clause 6.2.

“Encumbrance” means any lien, pledge, charge, encumbrance or other security interest (or an agreement or commitment to create any of them), legal proceeding (such as seizure), easement, license, claim, other rights in-rem, including option rights, pre-emption rights, rights of first refusal or veto rights, restriction on title, rights under forward or preliminary sales, transfer or exercise of any other attribute of ownership or other restriction or limitation of any kind whatsoever.

 

4

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

“Investment Agreement” has the meaning ascribed thereto in Recital E.

“Italian Bankruptcy Law” or “IBR” means the Italian bankruptcy law set out by Regio Decreto 16 marzo 1942, n. 267 as subsequently amended.

“Manitex Capital Increase” has the meaning ascribed thereto in Recital B.

“Manitex Shares” means (i) n. 430,000 ordinary shares of common stock of Manitex, representing, at the date hereof, about 3% of Manitex outstanding share capital or (ii) in the event that a Reorganization occurs between the Signing Date and the Effective Date, the shares of Manitex (or any successor thereof) that are, equivalent to the stock exchange value of the Manitex Shares on the Signing Date.

“O&S” means Oil & Steel s.p.a. with registered office at 22 Via Verdi, San Ceario sul Panaro (MO), a company 100% owned by PM.

“O&S Capital Increase” has the meaning ascribed thereto in Recital C.

“O&S Extraordinary Shareholders’ Meeting” has the meaning ascribed thereto in Recital C.

“Pilosio” means Pilosio S.p.A. with registered office at Via Fermi 45, Tavagnacco (UD).

“Pilosio Transfer Agreement” has the meaning ascribed thereto in Recital F.

“PM’s Extraordinary Shareholders’ Meeting” has the meaning ascribed thereto in Recital B.

“Reorganization” means any non-ordinary course change, modification, replacement or transformation (including, without limitation, by effect of a merger, a de-merger, a transformation, a spin-off, a capital decrease (voluntary

 

5

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

or compulsory), winding up or a capital increase of Manitex, a cancellation, splitting, regrouping, or replacement of the Manitex Shares with new shares or quotas) of (i) the Manitex Shares; (ii) of rights relating to the Manitex Shares; and/or (iii) of Manitex. The changes, modifications, replacements or transformations under points (i), (ii) and (iii) above may be cumulative and/or repetitive and/or associated.

“Shareholders Capital Increase” has the meaning ascribed thereto in Recital B.

“Signing Date” means the date on which this Agreement has been subscribed by all the Parties.

“BPER Debts” has the meaning ascribed thereto in Recital D.

 

2. ASSIGNMENT

 

2.1 Subject to the conditions precedent set out in Clause 6 below and to the completion of the issuance and delivery of the Manitex Shares by Manitex to BPER pursuant to Clause 4, BPER hereby assigns to Manitex, which purchases, with effect as of the Effective Date, the BPER Debts.

 

2.2 Manitex undertakes to communicate to PM, Polo Holdings S.à.r.l. and to the Agent (as defined in the Debt Restructuring Agreement) that the assignment of the BPER Debts has been perfected within the day following to the day on which such assignment has been actually perfected.

 

2.3 The BPER Debts are assigned as unsecured monetary claims and, for the sake of clarity, all the relevant guaranties (mortgage and pledges) shall not be transferred to Manitex.

 

2.4 The transfer of the BPER Debts is made pro soluto (without recourse), it being understood that BPER does not give any representation and warranty on the solvency or the performance by PM or of its guarantors for any title of its payment obligations.

 

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Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

2.5 Manitex shall have the right to designate a person to become a party to this Agreement provided that such designation is made in compliance with the following provisions:

(a) such designation will be made in writing and sent together with the written acceptance of the person so designated by the Effective Date;

(b) such person will be an Affiliate of Manitex incorporated in Europe or the United Kingdom;

(c) Manitex will be jointly liable with the designated person without any condition of prior enforcement against the designated person (senza beneficio dell’escussione del terzo) for the correct execution of the transactions contemplated in this Agreement and such joint liability will be confirmed in the notice under paragraph (a) above.

 

3. REPRESENTATIONS AND WARRANTIES OF BPER

 

3.1 BPER hereby makes the following representations and warranties to Manitex, each of which shall be true and correct also on the Effective Date:

 

  3.1.1 BPER is a bank duly incorporated, validly existing and in good standing under the laws of Italy;

 

  3.1.2 all corporate acts and other proceedings required to be taken by or on behalf of BPER to authorize BPER to enter into and to carry out this Agreement have been duly and properly taken, and this Agreement has been duly executed and delivered by BPER and constitutes the valid and binding obligation of BPER enforceable against BPER in accordance with its terms;

 

  3.1.3 no application to, or filing with, or consent, authorization or approval of, or license, permit, registration, declaration or exemption by, any governmental or public body or authority is required of BPER under Italian law in connection with the execution and performance of this Agreement;

 

7

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

  3.1.4 the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not conflict with, or result in the breach of, or constitute a default under, the articles of incorporation or the by-laws of BPER or the Loan Agreement;

 

  3.1.5 BPER is the exclusive owner of the BPER Debts that are clear and free from any Encumbrance and BPER has the full right, power and authority to sell, assign, transfer and deliver the BPER Debts in accordance with the terms of this Agreement, also due to the consent, given by the Company and by BPER pursuant to the Debt Restructuring Agreement, to the assignment hereof;

 

  3.1.6 on the Effective Date, the BPER Debts will be freely transferable under the Loan Agreement, also due to the consent, given by the Company and by BPER pursuant to the Debt Restructuring Agreement and to the assignment hereof;

 

  3.1.7 the BPER Debts are valid and existing pursuant to article 1266 of the Civil Code and, pursuant to Paragraph 5.1.2 of the Debt Restructuring Agreement will be due and payable on the Effective Date, including without limitation the BPER Debts which are not yet due and payable on the date hereof;

 

  3.1.8 the principal amount of the BPER Debts on the date hereof is and will be on the Effective Date equal to Euro 8,750,000.00 (eight million seven hundred fifty thousand/00);

 

  3.1.9 the Loan Agreement is valid and enforceable and neither the BPER Debts nor the Loan Agreement are subject to any objection, action or claim of whatever nature by PM and/or any dispute, legal proceedings, arbitration or legal action pending, imminent or threatened by PM or any third party;

 

  3.1.10 BPER has correctly, completely and diligently kept and shall correctly, completely and diligently keep until the Effective Date the books, records, data and documents regarding the BPER Debts in compliance with all requirements of applicable Italian laws and regulations;

 

8

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

  3.1.11 the transactions described in this Agreement, including BPER’s payment for, and BPER’s continued beneficial ownership of, the Manitex Shares will not violate any applicable Italian laws;

 

  3.1.12 BPER has not 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 Manitex or any of its Affiliates;

 

  3.1.13 BPER acknowledges that its participation in the transactions contemplated by this Agreement, including the issuance of the Manitex Shares by Manitex to BPER in accordance with the terms hereof, may involve tax consequences and that Manitex has not provided to BPER any tax advice or information related thereto. BPER acknowledges that it must retain its own professional advisors to evaluate the tax and other consequences of an investment in the Manitex Shares.

 

3.2 BPER shall indemnify and hold Manitex harmless in respect of all losses or damages incurred or suffered by Manitex as a result of any representations and warranties not being true and correct and/or the breach by BPER of any covenants and/or obligations contained in this Agreement.

 

4. MANITEX SHARES ISSUANCE

 

4.1 Subject to the terms and conditions hereof, on the Effective Date, Manitex shall (i) issue Manitex Shares to BPER and shall duly and validly deliver to BPER the relevant share certificates in a manner legally sufficient to transfer to BPER full title to the Manitex Shares, free and clear of any Encumbrances; and (ii) execute and deliver, or cause to be executed and delivered, such transfer or other instruments or documents as may be necessary, under applicable law, to transfer to BPER full title to the Manitex Shares, free and clear of any Encumbrances and to otherwise properly effect the purposes of this Agreement; (iii) deliver a declaration from a US lawyer with a translation in Italian attached thereto in the form as per Annex (A); (iv) deliver the declaration of the secretary of Manitex confirming the occurrence of the correct issuance and registration of the Manitex Shares to BPER in the form as per Annex (B).

 

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Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

5. REPRESENTATIONS AND WARRANTIES AND OTHER UNDERTAKINGS REGARDING THE MANITEX SHARES

 

5.1 Manitex hereby makes the following representations and warranties to BPER, each of which shall be true and correct also on the Effective Date:

 

  5.1.1 Manitex is a corporation duly incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation;

 

  5.1.2 all corporate acts and other proceedings required to be taken by or on behalf of Manitex to authorize Manitex to enter into and to carry out this Agreement have been duly and properly taken, and this Agreement has been duly executed and delivered by Manitex and constitutes the valid and binding obligation of Manitex enforceable against Manitex in accordance with its terms;

 

  5.1.3 no application to, or filing with, or consent, authorization or approval of, or license, permit, registration, declaration or exemption by, any governmental or public body or authority is required of Manitex in connection with the execution and performance of this Agreement;

 

  5.1.4 the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not conflict with, or result in the breach of, or constitute a default under, the articles of incorporation or the by-laws of Manitex;

 

  5.1.5 Manitex has not 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 BPER or any of its Affiliates;

 

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Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

  5.1.6 the Manitex Shares to be issued pursuant to the terms of this Agreement, when issued transferred and delivered in accordance with the terms of this Agreement for the consideration set forth herein, will be duly and validly issued, fully paid and non-assessable, and shall be issued free and clear of any Encumbrances;

 

  5.1.7 as of the Signing Date, there are 13,822,169 outstanding Manitex Shares and Manitex is not aware, to be best of its knowledge, of any other issuance of its shares and\or of any Reorganization to occur prior to the Effective Date;

 

  5.1.8 Manitex represents, and BPER acknowledges, that the issuance of the Manitex Shares pursuant to the terms of this Agreement has not been reviewed by the United States Securities and Exchange Commission (the “SEC”) because it is intended to be a non-public offering, exempted from the registration requirements of the Securities Act of 1933, as amended (the “1933 Act”);

 

  5.1.9 Manitex represents, and BPER acknowledges, that any physical certificates representing the Manitex Shares, until such time as such Manitex Shares have been registered under the 1933 Act, shall bear a customary restrictive legend for privately issued, unregistered shares of Manitex common stock which states that the shares may not be sold unless they have been registered with the SEC or an exemption from such registration is available;

 

  5.1.10 Manitex further represents that after BPER has held the Manitex Shares for a period of six months, BPER ought to be able to sell the Manitex Shares without restriction pursuant to Rule 144 under the 1933 Act, which provides that a holder of restricted securities issued by a SEC reporting company may sell such restricted securities without restriction after holding them for six months, provided that the holder is not an affiliate of the SEC reporting company and the SEC reporting company is current in its SEC filing requirements;

 

  5.1.11

Manitex acknowledges that its participation in the transactions contemplated by this Agreement, including the issuance of the Manitex Shares by Manitex to BPER in accordance with the terms hereof, may involve tax consequences and that BPER has not

 

11

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

  provided to Manitex any tax advice or information related thereto. Manitex acknowledges that it must retain its own professional advisors to evaluate the tax and other consequences of the issuance of the Manitex Shares;

 

  5.1.12 Manitex has respected the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and has satisfied the “current public information” requirement set forth in Rule 144(c)(1).

 

5.2 Manitex shall indemnify and hold BPER harmless in respect of all losses or damages incurred or suffered by BPER as a result of any representations and warranties not being true and correct and/or the breach by Manitex of any covenants and/or obligations contained in this Agreement.

 

5.3 Manitex (i) shall use the BPER Debts to pay-in by way of set-off, for an equal amount, the Manitex Capital Increase; and (ii) shall not claim for the payment of the BPER Debts and/or accept payments and/or enforce them any way other than as provided in paragraph (i).

 

5.4 Manitex undertakes, until the date of the sale of the Manitex Shares by BPER (included) (i) to respect the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended; and (ii) to satisfy the “current public information” requirement set forth in Rule 144(c)(1).

 

6. CONDITIONS PRECEDENT

 

6.1 The assignment shall become effective subject to the occurrence, not later than 31 January 2015, of the following conditions precedent:

 

  6.1.1 the competent court will have confirmed the Debt Restructuring Agreement pursuant to article 182-bis of the IBL (omologazione dell’accordo di ristrutturazione dei debiti);

 

12

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

  6.1.2 the board of directors of PM will have confirmed in writing to Manitex that the decision of the court confirming the Debt Restructuring Agreement pursuant to article 182bis of the IBL has not been timely challenged under article 182bis, paragraph 5, of the IBL or, alternatively, that any challenge have been rejected by the competent court;

 

  6.1.3 PM’s Extraordinary Shareholders’ Meeting will have approved the Capital Increases in accordance with the terms and conditions set out in Recital B;

 

  6.1.4 the O&S Extraordinary Shareholders’ Meeting will have approved the O&S Capital Increase in accordance with the terms and conditions set out in Recital C;

 

  6.1.5 the shareholders meeting of PM and O&S will have approved the respective financial statements as at 31 December 2013 with the same contents of the draft financial statements attached hereto as Annexes (C) and (D);

 

  6.1.6 PM will have approved the audited consolidated financial statements of PM as at 31 December 2013 and the auditing company of PM will have released a clean opinion thereon except for possible qualifications in respect of PM’s going concern;

 

  6.1.7 the auditing company of PM will have released a clean opinion on the consolidated financial statements of PM (excluding Pilosio and its subsidiaries), including (i) the statements of income, comprehensive income, cash flows and changes in equity for the three years ended respectively on 31 December 2011, 31 December 2012 and 31 December 2013 and (ii) the balance sheets for the two years ended on 31 December 2012 and 31 December 2013 (the “PM Group carve-out year-end consolidated financial statements”) except for possible qualifications in respect of PM’s going concern;

 

  6.1.8 the Shareholders Capital Increase (offered in preemption to the current shareholders of PM) shall not have been subscribed in full within the deadline set by the resolution of the PM’s Extraordinary Shareholders Meeting;

 

13

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

  6.1.9 the directors of PM and O&S currently in office will have handed in their resignations to take effect as of the date of execution of the Manitex Capital Increase;

 

  6.1.10 the board of directors of PM and the board of directors of O&S will have convened the respective ordinary shareholders meeting on the date scheduled for the execution of the Manitex Capital increases for the purpose of electing new directors and statutory auditors (if any) in lieu of those leaving the office;

 

  6.1.11 no order, injunction, judgment or decree issued by any governmental or judicial authority or other legal restraint or prohibition preventing the subscription for the Manitex Capital Increase will be in effect;

 

  6.1.12 none of the following events, changes or circumstances shall have occurred prior to the Effective Date:

a. a disruption in the financial, banking, lending, debt or capital markets or in securities settlement or clearance services in the United States preventing Manitex from subscribing and/or completing the Manitex Capital Increase;

b. suspension or material limitation in trading in securities in general preventing Manitex from subscribing and/or completing the Manitex Capital Increase;

c. a Material Adverse Effect (Effetto Pregiudizievole Significativo) as defined in the Debt Restructuring Agreement, unless cured by the Effective Date;

 

  6.1.13 Manitex and BPER will have entered into an assignment agreement for the transfer from BPER to Manitex of debts for an amount of Euro 5,000,000.00 (five million/00), against the payment of Euro 1,500,000.00 (one million five hundred thousand/00);

 

14

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

  6.1.14 Manitex and BPER will have entered into (i) an assignment agreement, corresponding to this Agreement, for the transfer from BPER to Manitex of debts towards PM for an amount of Euro 8,750,000.00 (eight million seven hundred fifty thousand/00) against the issuance of 430,000 Manitex shares to BPER; and (ii) an assignment agreement for the transfer from BPER to Manitex of debts towards PM for an amount of Euro 10,000,000.00 (ten million/00), against the payment of Euro 1,500,000.00 (one million five hundred thousand/00).

 

6.2 Manitex and BPER may at any time jointly (and not severally) waive in whole or in part and conditionally or unconditionally the conditions set out in article 6.1 by written notice to the other parties.

 

6.3 If any of the conditions precedent under article 6.1 has not occurred or been waived on or prior to 31 January 2015, this Agreement shall be definitively without effect.

 

6.4 Without prejudice to the provisions under Clause 5.3, Manitex will become the owner of the BPER Debts when, on the Effective Date, the issuance of the Manitex Shares will be completed pursuant to Clause 4.

 

7. CONDITIONS SUBSEQUENT

 

7.1 This Agreement shall terminate automatically and with retroactive effects pursuant to Article 1353 of the Italian Civil Code in the event that the Manitex Capital Increase has not been fully underwritten and paid in by Manitex by and no later than five days from the Effective Date.

 

8. PM ACCEPTANCE

 

8.1 Manitex, pursuant to Articles 1264 and 1265 of the Italian Civil Code, shall notify the assignment with legal date of the BPER Debts provided for in this Agreement to PM or shall procure that PM accepts with legal date the assignment of the BPER Debts provided for in this Agreement.

 

15

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

9. TAXES, COSTS AND EXPENSES

 

9.1 Manitex shall bear all the taxes, costs and expenses incurred in connection with the entering into, execution, or amendment of this Agreement other then advisory fees that shall be borne by each party.

 

10. GOVERNING LAW AND JURISDICTION

 

10.1 This agreement is governed by and shall be construed in accordance with the laws of Italy, without prejudice to any mandatory provision under US law applicable to the issuance of the Manitex Shares.

 

10.2 The Courts of Milan shall have exclusive jurisdiction in respect of any dispute arising out of this agreement.

 

11. ATTACHMENTS

Annex (A)         draft declaration of the US Lawyer;

Annex (B)         draft declaration of Manitex’s secretary

Annex (C)         draft financial statements of PM

Annex (D)         draft financial statements of O&S

- - - o 0 o - - -

We execute this letter in sign of acceptance of the debt assignment agreement against shares copied above.

Best regards

/s/ Andrew M. Rooke                                                                      

Manitex International Inc.

Andrew Rooke

[President and COO]

 

 

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Messrs.

Manitex International Inc.

9725 Industrial Drive,

Bridgeview, Illinois, USA

Modena (Italy), 21 July 2014

Re: BPER Debts Assignment from BPER to Manitex and Share Issuance by Manitex to BPER

Dear Sirs,

We refer to our previous conversations and we hereby propose you the following:

TRANSFER AGREEMENT OF BPER DEBTS AGAINST MANITEX SHARES

BETWEEN

Banca Popolare dell’Emilia Romagna S.C., with registered office in Modena, Via San Carlo n. 8/20 16, registered with the Register of Enterprises of Modena, Taxpayer’s Code and VAT No. 01153230360, duly represented by Emilio Cremonesi duly empowered (“BPER”);

AND

Manitex International Inc., a company established under the laws of Illinois (USA), with registered office in 9725 Industrial Drive, Bridgeview, Illinois (USA), duly represented by Andrew Rooke, president and chief operating officer authorized by the board of directors with resolution on 10 July 2014 (“Manitex”);

WHEREAS

(A) Pursuant to a loan agreement entered into on 30 January 2009 between, inter alios, BPER and PM Group S.p.A. (“PM”), BPER has granted and advanced to PM a loan for a maximum amount of Euro 76.500.000,00, secured by a mortgage and three pledges over shares of PM, Pilosio S.p.A. and Oil & Steel S.p.A. (as subsequently amended, even by the Debt Restructuring Agreement (as defined below)) (the “Loan Agreement”).

 

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(B) On 10 June 2014 the board of directors of PM resolved to call in the extraordinary shareholders meeting of PM on 30 June 2014 in first call and 30 July 2014 in second call (hereinafter the “PM’s Extraordinary Shareholders’ Meeting”) to resolve on the following actions (hereinafter collectively the “Capital Increases”):

 

  (i) a capital increase in PM for Euro 10,000,000.00 (ten million/00), with a share premium equal to Euro 7,927,316.00 (seven million nine hundred twenty seven thousand three hundred sixteen /00) and a non-repayable contribution equal to Euro 26,572,684.00 (twenty six million five hundred seventy two thousand six hundred eighty four/00) to cover losses,—conditional upon full subscription thereof (inscindibile)—to be subscribed for by the current shareholders and paid-in in cash and/or by way of set-off of due claims of the shareholders against PM (hereinafter the “Shareholders Capital Increase”); or, alternatively

 

  (ii) a capital increase in PM for Euro 10,000,000.00 (ten million/00), with a share premium equal to Euro 7,927,316.00 (seven million nine hundred twenty seven thousand three hundred sixteen/00) and a non-repayable contribution equal to 26,572,648.00 (twenty six million five hundred seventy two thousand six hundred eighty four/00) to cover losses—conditional upon full subscription thereof (inscindibile)—to be subscribed for by Manitex and paid–in in cash and/or by way of set-off of due claims of Manitex against PM (hereinafter the “Manitex Capital Increase”).

 

(C) On 10 June 2014 the board of directors of O&S (as defined below) resolved to call in the extraordinary shareholders meeting of O&S (as defined below) (hereinafter the “O&S Extraordinary Shareholders’ Meeting”) to resolve on a capital increase, divided into two tranches, one for Euro 1,000,000.00 (one million/00) with share premium of 2,500,996.00 (Two million five hundred thousand nine hundred ninety six/00) – conditional upon full subscription thereof (inscindibile)—and the second one, that can be subscribed also partially, for Euro 600,000.00 (six hundred thousand/00) in any case with a non-repayable contribution equal to 6,197,686.00 (Six million one hundred ninety seven thousand six hundred eighty six/00) to cover losses, to be paid-in in cash or by way of set-off of due claims of PM against O&S (hereinafter the “O&S Capital Increase”).

 

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(D) On the date hereof, PM entered into with its banks a debt restructuring agreement (Accordo di Ristrutturazione) pursuant to Article 182-bis of the Italian Bankruptcy Law (as defined below) (the “Debt Restructuring Agreement”). The Debt Restructuring Agreement provides, inter alia, that BPER will assign without recourse to Manitex overdue debts under the Loan Agreement equal to Euro 8,750,000.00 (eight million seven hundred fifty thousand/00) arising from the Loan Agreement (the “BPER Debts”) against the issuance by Manitex to BPER of the Manitex Shares (as defined below).

 

(E) On the date hereof, Manitex entered into an investment agreement with the majority shareholder of PM (the “Investment Agreement”) in respect of the subscription by Manitex for the Manitex Capital Increase.

 

(F) On the date hereof, PM entered into with Polo Holdings S.à r.l. (“Polo Holdings”, a company 100% held by Columna Holdings Limited) a share purchase agreement (the “Pilosio Transfer Agreement”) in connection with the transfer of 100% of the equity interest in Pilosio (as defined below) and Polo Holdings paid Euro 1,000,000.00 (one million) into an escrow account.

 

(G) BPER and Manitex intend hereby: (i) for BPER to assign the BPER Debts to Manitex; and (ii) for Manitex to issue the Manitex Shares (as defined below) to BPER, in each case, on the terms and conditions set out in this Agreement.

Now, therefore, it’s agreed as follows:

 

1. DEFINITIONS and CONSTRUCTION

Recitals: The recitals of this Agreement are an integral and essential part thereof, with the value and force of covenants between the Parties.

Headings: The headings of the clauses and sub-clauses of this Agreement are for ease of reference only and shall not affect the interpretation of this Agreement.

 

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Recitals and Clauses: Any reference in this Agreement to a “Recital” or a “Clause” shall be a reference to a recital or a clause of this Agreement, unless the contrary is indicated.

Laws, Regulations, Contracts and Documents: Any reference in this Agreement to a law, a regulation, a contract or a document shall be a reference to such law, regulation, contract or document as amended from time to time (and including after the date of this Agreement), unless the contrary is expressly indicated or anyway required by the context.

Definitions: In this Agreement, the following capitalised terms shall have the following meanings:

“Affiliate” means—with respect to any person an individual—corporation, partnership, firm, association, unincorporated organization or other entity directly or indirectly controlling, controlled by or under common control with such person.

“Agreement” means this debt assignment and share transfer agreement.

“Capital Increases” has the meaning ascribed thereto in Recital B.

“Civil Code” means the Italian civil code, as approved by the Royal Decree dated 16 March 1942, No. 262, as subsequently amended.

“Debt Restructuring Agreement” has the meaning ascribed thereto in Recital D.

“Effective Date” means the date on which all the conditions precedent set forth in Clause 6 have occurred or have been waived pursuant to Clause 6.2.

“Encumbrance” means any lien, pledge, charge, encumbrance or other security interest (or an agreement or commitment to create any of them), legal proceeding (such as seizure), easement, license, claim, other rights in-rem, including option rights, pre-emption rights, rights of first refusal or veto rights, restriction on title, rights under forward or preliminary sales, transfer or exercise of any other attribute of ownership or other restriction or limitation of any kind whatsoever.

 

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“Investment Agreement” has the meaning ascribed thereto in Recital E.

“Italian Bankruptcy Law” or “IBR” means the Italian bankruptcy law set out by Regio Decreto 16 marzo 1942, n. 267 as subsequently amended.

“Manitex Capital Increase” has the meaning ascribed thereto in Recital B.

“Manitex Shares” means (i) n. 430,000 ordinary shares of common stock of Manitex, representing, at the date hereof, about 3% of Manitex outstanding share capital or (ii) in the event that a Reorganization occurs between the Signing Date and the Effective Date, the shares of Manitex (or any successor thereof) that are, equivalent to the stock exchange value of the Manitex Shares on the Signing Date.

“O&S” means Oil&Steel s.p.a. with registered office at 22 Via Verdi, San Ceario sul Panaro (MO), a company 100% owned by PM.

“O&S Capital Increase” has the meaning ascribed thereto in Recital C.

“O&S Extraordinary Shareholders’ Meeting” has the meaning ascribed thereto in Recital C.

“Pilosio” means Pilosio S.p.A. with registered office at Via Fermi 45, Tavagnacco (UD).

“Pilosio Transfer Agreement” has the meaning ascribed thereto in Recital F.

“PM’s Extraordinary Shareholders’ Meeting” has the meaning ascribed thereto in Recital B.

“Reorganization” means any non-ordinary course change, modification, replacement or transformation (including, without limitation, by effect of a merger, a de-merger, a transformation, a spin-off, a capital decrease (voluntary or compulsory), winding up or a capital increase of Manitex, a cancellation, splitting, regrouping, or replacement of the Manitex Shares with new shares or quotas) of (i) the Manitex Shares; (ii) of rights relating to the Manitex Shares; and/or (iii) of Manitex. The changes, modifications, replacements or transformations under points (i), (ii) and (iii) above may be cumulative and/or repetitive and/or associated.

 

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“Shareholders Capital Increase” has the meaning ascribed thereto in Recital B.

“Signing Date” means the date on which this Agreement has been subscribed by all the Parties.

“BPER Debts” has the meaning ascribed thereto in Recital D.

 

2. ASSIGNMENT

 

2.1 Subject to the conditions precedent set out in Clause 6 below and to the completion of the issuance and delivery of the Manitex Shares by Manitex to BPER pursuant to Clause 4, BPER hereby assigns to Manitex, which purchases, with effect as of the Effective Date, the BPER Debts.

 

2.2 Manitex undertakes to communicate to PM, Polo Holdings S.à.r.l. and to the Agent (as defined in the Debt Restructuring Agreement) that the assignment of the BPER Debts has been perfected within the day following to the day on which such assignment has been actually perfected.

 

2.3 The BPER Debts are assigned as unsecured monetary claims and, for the sake of clarity, all the relevant guaranties (mortgage and pledges) shall not be transferred to Manitex.

 

2.4 The transfer of the BPER Debts is made pro soluto (without recourse), it being understood that BPER does not give any representation and warranty on the solvency or the performance by PM or of its guarantors for any title of its payment obligations.

 

2.5 Manitex shall have the right to designate a person to become a party to this Agreement provided that such designation is made in compliance with the following provisions:

(a) such designation will be made in writing and sent together with the written acceptance of the person so designated by the Effective Date;

 

6

(b) such person will be an Affiliate of Manitex incorporated in Europe or the United Kingdom;

(c) Manitex will be jointly liable with the designated person without any condition of prior enforcement against the designated person (senza beneficio dell’escussione del terzo) for the correct execution of the transactions contemplated in this Agreement and such joint liability will be confirmed in the notice under paragraph (a) above.

 

3. REPRESENTATIONS AND WARRANTIES OF BPER

 

3.1 BPER hereby makes the following representations and warranties to Manitex, each of which shall be true and correct also on the Effective Date:

 

  3.1.1 BPER is a bank duly incorporated, validly existing and in good standing under the laws of Italy;

 

  3.1.2 all corporate acts and other proceedings required to be taken by or on behalf of BPER to authorize BPER to enter into and to carry out this Agreement have been duly and properly taken, and this Agreement has been duly executed and delivered by BPER and constitutes the valid and binding obligation of BPER enforceable against BPER in accordance with its terms;

 

  3.1.3 no application to, or filing with, or consent, authorization or approval of, or license, permit, registration, declaration or exemption by, any governmental or public body or authority is required of BPER under Italian law in connection with the execution and performance of this Agreement;

 

  3.1.4 the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not conflict with, or result in the breach of, or constitute a default under, the articles of incorporation or the by-laws of BPER or the Loan Agreement;

 

7

  3.1.5 BPER is the exclusive owner of the BPER Debts that are clear and free from any Encumbrance and BPER has the full right, power and authority to sell, assign, transfer and deliver the BPER Debts in accordance with the terms of this Agreement, also due to the consent, given by the Company and by BPER pursuant to the Debt Restructuring Agreement, to the assignment hereof;

 

  3.1.6 on the Effective Date, the BPER Debts will be freely transferable under the Loan Agreement, also due to the consent, given by the Company and by BPER pursuant to the Debt Restructuring Agreement and to the assignment hereof;

 

  3.1.7 the BPER Debts are valid and existing pursuant to article 1266 of the Civil Code and, pursuant to Paragraph 5.1.2 of the Debt Restructuring Agreement will be due and payable on the Effective Date, including without limitation the BPER Debts which are not yet due and payable on the date hereof;

 

  3.1.8 the principal amount of the BPER Debts on the date hereof is and will be on the Effective Date equal to Euro 8,750,000.00 (eight million seven hundred fifty thousand/00);

 

  3.1.9 the Loan Agreement is valid and enforceable and neither the BPER Debts nor the Loan Agreement are subject to any objection, action or claim of whatever nature by PM and/or any dispute, legal proceedings, arbitration or legal action pending, imminent or threatened by PM or any third party;

 

  3.1.10 BPER has correctly, completely and diligently kept and shall correctly, completely and diligently keep until the Effective Date the books, records, data and documents regarding the BPER Debts in compliance with all requirements of applicable Italian laws and regulations;

 

  3.1.11 the transactions described in this Agreement, including BPER’s payment for, and BPER’s continued beneficial ownership of, the Manitex Shares will not violate any applicable Italian laws;

 

8

  3.1.12 BPER has not 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 Manitex or any of its Affiliates;

 

  3.1.13 BPER acknowledges that its participation in the transactions contemplated by this Agreement, including the issuance of the Manitex Shares by Manitex to BPER in accordance with the terms hereof, may involve tax consequences and that Manitex has not provided to BPER any tax advice or information related thereto. BPER acknowledges that it must retain its own professional advisors to evaluate the tax and other consequences of an investment in the Manitex Shares.

 

3.2 BPER shall indemnify and hold Manitex harmless in respect of all losses or damages incurred or suffered by Manitex as a result of any representations and warranties not being true and correct and/or the breach by BPER of any covenants and/or obligations contained in this Agreement.

 

4. MANITEX SHARES ISSUANCE

 

4.1 Subject to the terms and conditions hereof, on the Effective Date, Manitex shall (i) issue Manitex Shares to BPER and shall duly and validly deliver to BPER the relevant share certificates in a manner legally sufficient to transfer to BPER full title to the Manitex Shares, free and clear of any Encumbrances; and (ii) execute and deliver, or cause to be executed and delivered, such transfer or other instruments or documents as may be necessary, under applicable law, to transfer to BPER full title to the Manitex Shares, free and clear of any Encumbrances and to otherwise properly effect the purposes of this Agreement; (iii) deliver a declaration from a US lawyer with a translation in Italian attached thereto in the form as per Annex (A); (iv) deliver the declaration of the secretary of Manitex confirming the occurrence of the correct issuance and registration of the Manitex Shares to BPER in the form as per Annex (B).

 

9

5. REPRESENTATIONS AND WARRANTIES AND OTHER UNDERTAKINGS REGARDING THE MANITEX SHARES

 

5.1 Manitex hereby makes the following representations and warranties to BPER, each of which shall be true and correct also on the Effective Date:

 

  5.1.1 Manitex is a corporation duly incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation;

 

  5.1.2 all corporate acts and other proceedings required to be taken by or on behalf of Manitex to authorize Manitex to enter into and to carry out this Agreement have been duly and properly taken, and this Agreement has been duly executed and delivered by Manitex and constitutes the valid and binding obligation of Manitex enforceable against Manitex in accordance with its terms;

 

  5.1.3 no application to, or filing with, or consent, authorization or approval of, or license, permit, registration, declaration or exemption by, any governmental or public body or authority is required of Manitex in connection with the execution and performance of this Agreement;

 

  5.1.4 the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not conflict with, or result in the breach of, or constitute a default under, the articles of incorporation or the by-laws of Manitex;

 

  5.1.5 Manitex has not 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 BPER or any of its Affiliates;

 

  5.1.6 the Manitex Shares to be issued pursuant to the terms of this Agreement, when issued transferred and delivered in accordance with the terms of this Agreement for the consideration set forth herein, will be duly and validly issued, fully paid and non-assessable, and shall be issued free and clear of any Encumbrances;

 

  5.1.7 as of the Signing Date, there are 13,822,169 outstanding Manitex Shares and Manitex is not aware, to be best of its knowledge, of any other issuance of its shares and\or of any Reorganization to occur prior to the Effective Date;

 

10

  5.1.8 Manitex represents, and BPER acknowledges, that the issuance of the Manitex Shares pursuant to the terms of this Agreement has not been reviewed by the United States Securities and Exchange Commission (the “SEC”) because it is intended to be a non-public offering, exempted from the registration requirements of the Securities Act of 1933, as amended (the “1933 Act”);

 

  5.1.9 Manitex represents, and BPER acknowledges, that any physical certificates representing the Manitex Shares, until such time as such Manitex Shares have been registered under the 1933 Act, shall bear a customary restrictive legend for privately issued, unregistered shares of Manitex common stock which states that the shares may not be sold unless they have been registered with the SEC or an exemption from such registration is available;

 

  5.1.10 Manitex further represents that after BPER has held the Manitex Shares for a period of six months, BPER ought to be able to sell the Manitex Shares without restriction pursuant to Rule 144 under the 1933 Act, which provides that a holder of restricted securities issued by a SEC reporting company may sell such restricted securities without restriction after holding them for six months, provided that the holder is not an affiliate of the SEC reporting company and the SEC reporting company is current in its SEC filing requirements;

 

  5.1.11 Manitex acknowledges that its participation in the transactions contemplated by this Agreement, including the issuance of the Manitex Shares by Manitex to BPER in accordance with the terms hereof, may involve tax consequences and that BPER has not provided to Manitex any tax advice or information related thereto. Manitex acknowledges that it must retain its own professional advisors to evaluate the tax and other consequences of the issuance of the Manitex Shares;

 

  5.1.12 Manitex has respected the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and has satisfied the “current public information” requirement set forth in Rule 144(c)(1).

 

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5.2 Manitex shall indemnify and hold BPER harmless in respect of all losses or damages incurred or suffered by BPER as a result of any representations and warranties not being true and correct and/or the breach by Manitex of any covenants and/or obligations contained in this Agreement.

 

5.3 Manitex (i) shall use the BPER Debts to pay-in by way of set-off, for an equal amount, the Manitex Capital Increase; and (ii) shall not claim for the payment of the BPER Debts and/or accept payments and/or enforce them any way other than as provided in paragraph (i).

 

5.4 Manitex undertakes, until the date of the sale of the Manitex Shares by BPER (included) (i) to respect the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended; and (ii) to satisfy the “current public information” requirement set forth in Rule 144(c)(1).

 

6. CONDITIONS PRECEDENT

 

6.1 The assignment shall become effective subject to the occurrence, not later than 31 January 2015, of the following conditions precedent:

 

  6.1.1 the competent court will have confirmed the Debt Restructuring Agreement pursuant to article 182-bis of the IBL (omologazione dell’accordo di ristrutturazione dei debiti);

 

  6.1.2 the board of directors of PM will have confirmed in writing to Manitex that the decision of the court confirming the Debt Restructuring Agreement pursuant to article 182bis of the IBL has not been timely challenged under article 182bis, paragraph 5, of the IBL or, alternatively, that any challenge have been rejected by the competent court;

 

  6.1.3 PM’s Extraordinary Shareholders’ Meeting will have approved the Capital Increases in accordance with the terms and conditions set out in Recital B;

 

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  6.1.4 the O&S Extraordinary Shareholders’ Meeting will have approved the O&S Capital Increase in accordance with the terms and conditions set out in Recital C;

 

  6.1.5 the shareholders meeting of PM and O&S will have approved the respective financial statements as at 31 December 2013 with the same contents of the draft financial statements attached hereto as Annexes (C) and (D);

 

  6.1.6 PM will have approved the audited consolidated financial statements of PM as at 31 December 2013 and the auditing company of PM will have released a clean opinion thereon except for possible qualifications in respect of PM’s going concern;

 

  6.1.7 the auditing company of PM will have released a clean opinion on the consolidated financial statements of PM (excluding Pilosio and its subsidiaries), including (i) the statements of income, comprehensive income, cash flows and changes in equity for the three years ended respectively on 31 December 2011, 31 December 2012 and 31 December 2013 and (ii) the balance sheets for the two years ended on 31 December 2012 and 31 December 2013 (the “PM Group carve-out year-end consolidated financial statements”) except for possible qualifications in respect of PM’s going concern;

 

  6.1.8 the Shareholders Capital Increase (offered in preemption to the current shareholders of PM) shall not have been subscribed in full within the deadline set by the resolution of the PM’s Extraordinary Shareholders Meeting;

 

  6.1.9 the directors of PM and O&S currently in office will have handed in their resignations to take effect as of the date of execution of the Manitex Capital Increase;

 

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  6.1.10 the board of directors of PM and the board of directors of O&S will have convened the respective ordinary shareholders meeting on the date scheduled for the execution of the Manitex Capital increases for the purpose of electing new directors and statutory auditors (if any) in lieu of those leaving the office;

 

  6.1.11 no order, injunction, judgment or decree issued by any governmental or judicial authority or other legal restraint or prohibition preventing the subscription for the Manitex Capital Increase will be in effect;

 

  6.1.12 none of the following events, changes or circumstances shall have occurred prior to the Effective Date:

a. a disruption in the financial, banking, lending, debt or capital markets or in securities settlement or clearance services in the United States preventing Manitex from subscribing and/or completing the Manitex Capital Increase;

b. suspension or material limitation in trading in securities in general preventing Manitex from subscribing and/or completing the Manitex Capital Increase;

c. a Material Adverse Effect (Effetto Pregiudizievole Significativo) as defined in the Debt Restructuring Agreement, unless cured by the Effective Date;

 

  6.1.13 Manitex and BPER will have entered into an assignment agreement for the transfer from BPER to Manitex of debts for an amount of Euro 5,000,000.00 (five million/00), against the payment of Euro 1,500,000.00 (one million five hundred thousand/00);

 

  6.1.14 Manitex and UC will have entered into (i) an assignment agreement, corresponding to this Agreement, for the transfer from UC to Manitex of debts towards PM for an amount of Euro 8,750,000.00 (eight million seven hundred fifty thousand/00) against the issuance of 430,000 Manitex shares to UC; and (ii) an assignment agreement for the transfer from UC to Manitex of debts towards PM for an amount of Euro 10,000,000.00 (ten million/00), against the payment of Euro 1,500,000.00 (one million five hundred thousand/00).

 

6.2 Manitex and BPER may at any time jointly (and not severally) waive in whole or in part and conditionally or unconditionally the conditions set out in article 6.1 by written notice to the other parties.

 

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6.3 If any of the conditions precedent under article 6.1 has not occurred or been waived on or prior to 31 January 2015, this Agreement shall be definitively without effect.

 

6.4 Without prejudice to the provisions under Clause 5.3, Manitex will become the owner of the BPER Debts when, on the Effective Date, the issuance of the Manitex Shares will be completed pursuant to Clause 4.

 

7. CONDITIONS SUBSEQUENT

 

7.1 This Agreement shall terminate automatically and with retroactive effects pursuant to Article 1353 of the Italian Civil Code in the event that the Manitex Capital Increase has not been fully underwritten and paid in by Manitex by and no later than five days from the Effective Date.

 

8. PM ACCEPTANCE

 

8.1 Manitex, pursuant to Articles 1264 and 1265 of the Italian Civil Code, shall notify the assignment with legal date of the BPER Debts provided for in this Agreement to PM or shall procure that PM accepts with legal date the assignment of the BPER Debts provided for in this Agreement.

 

9. TAXES, COSTS AND EXPENSES

 

9.1 Manitex shall bear all the taxes, costs and expenses incurred in connection with the entering into, execution, or amendment of this Agreement other than advisory fees that shall be borne by each party.

 

10. GOVERNING LAW AND JURISDICTION

 

10.1 This agreement is governed by and shall be construed in accordance with the laws of Italy, without prejudice to any mandatory provision under US law applicable to the issuance of the Manitex Shares.

 

10.2 The Courts of Milan shall have exclusive jurisdiction in respect of any dispute arising out of this agreement.

 

15

11. ATTACHMENTS

Annex (A)         draft declaration of the US Lawyer;

Annex (B)         draft declaration of Manitex’s secretary

Annex (C)         draft financial statements of PM

Annex (D)         draft financial statements of O&S

# # #

If you agree with this proposal, please return to us this letter duly signed by way of acceptance thereof.

 

Kind regards,
/s/ Emilio Cremonesi

Banca Popolare dell’Emilia Romagna S.C.

 

16

EX-10.3

Exhibit 10.3

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

Messrs.

Unicredit S.p.A.

Via Alessandro Specchi 16

Rome

Bridgeview, 21 July 2014

Dear Sirs,

we have received your proposal to execute a debt assignment agreement, which we copy herein below:

- - - o 0 o - - -

“DEBTS ASSIGNMENT AGREEMENT

BETWEEN

Unicredit S.p.A., with registered office in Rome, Via Alessandro Specchi 16, registered with the Register of Enterprises of Rome, Taxpayer’s Code and VAT No. 00348170101, duly represented by Giuseppe Izzo duly empowered (“UC”):

AND

Manitex International Inc., a company established under the laws of Illinois (USA), with registered office in 9725 Industrial Drive, Bridgeview, Illinois (USA), duly represented by Andrew Rooke, president and chief operating officer authorized by the board of directors with resolution on 10 July 2014 (“Manitex”)

WHEREAS

 

(A) Pursuant to a loan agreement entered into on 30 January 2009 between, inter alios, UC and PM Group S.p.A. (“PM”), UC has granted and advanced to PM a loan for a maximum amount of Euro 76.500.000,00, secured by a mortgage and three pledges over shares of PM, Pilosio S.p.A. and Oil & Steel S.p.A. (as subsequently amended, even by the Debt Restructuring Agreement (as defined below)) (the “Loan Agreement”).

 

1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

(B) On 10 June 2014 the board of directors of PM resolved to call in the extraordinary shareholders meeting of PM on 30 June 2014 in first call and 30 July 2014 in second call (hereinafter the “PM’s Extraordinary Shareholders’ Meeting”) to resolve on the following actions (hereinafter collectively the “Capital Increases”):

 

  (i) a capital increase in PM for Euro 10,000,000.00 (ten million/00), with a share premium equal to Euro 7,927,316.00 (seven million nine hundred twenty seven thousand three hundred sixteen/00) and a non-repayable contribution equal to Euro 26,572,684.00 (twenty six million five hundred seventy two thousand six hundred eighty four/00) to cover losses,—conditional upon full subscription thereof (inscindibile)—to be subscribed for by the current shareholders and paid-in in cash and/or by way of set-off of due claims of the shareholders against PM (hereinafter the “Shareholders Capital Increase”); or, alternatively

 

  (ii) a capital increase in PM for Euro 10,000,000.00 (ten million/00), with a share premium equal to Euro 7,927,316.00 (seven million nine hundred twenty seven thousand three hundred sixteen/00) and a non-repayable contribution equal to 26,572,648.00 (twenty six million five hundred seventy two thousand six hundred eighty four/00) to cover losses—conditional upon full subscription thereof (inscindibile)—to be subscribed for by Manitex and paid–in in cash and/or by way of set-off of due claims of Manitex against PM (hereinafter the “Manitex Capital Increase”).

 

(C) On 10 June 2014 the board of directors of O&S (as defined below) resolved to call in the extraordinary shareholders meeting of O&S (as defined below) (hereinafter the “O&S Extraordinary Shareholders’ Meeting”) to resolve on a capital increase, divided into two tranches, one for Euro 1,000,000.00 (one million/00) with share premium of 2,500,996.00 (Two million five hundred thousand nine hundred ninety six/00) – conditional upon full subscription thereof (inscindibile)—and the second one, that can be subscribed also partially, for Euro 600,000.00 (six hundred thousand/00) in any case with a non-repayable contribution equal to 6,197,686.00 (Six million one hundred ninety seven thousand six hundred eighty six/00) to cover losses, to be paid-in in cash or by way of set-off of due claims of PM against O&S (hereinafter the “O&S Capital Increase”).

 

2

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

(D) On the date hereof, PM entered into with its banks a debt restructuring agreement (Accordo di Ristrutturazione) pursuant to Article 182-bis of the Italian Bankruptcy Law (as defined below) (the “Debt Restructuring Agreement”). The Debt Restructuring Agreement provides, inter alia, that UC will assign without recourse to Manitex overdue debts under the Loan Agreement equal to Euro 10,000,000.00 (ten million/00) arising from the Loan Agreement (the “UC Debts”) against the payment of a price equal to Euro 1,500,000.00 (one million five hundred thousand/00).

 

(E) On the date hereof, Manitex entered into an investment agreement with the majority shareholder of PM (the “Investment Agreement”) in respect of the subscription by Manitex for the Manitex Capital Increase.

 

(F) On the date hereof, PM entered into with Polo Holdings S.à r.l. (“Polo Holdings”, a company 100% held by Columna Holdings Limited) a share purchase agreement (the “Pilosio Transfer Agreement”) in connection with the transfer of 100% of the equity interest in Pilosio (as defined below) and Polo Holdings paid Euro 1,000,000.00 (one million) into an escrow account.

 

(G) UC and Manitex intend hereby to assign the UC Debts to Manitex on the terms and conditions set out in this Agreement.

Now, therefore, it is agreed as follows.

 

1. DEFINITIONS and CONSTRUCTION

Recitals: The recitals of this Agreement are an integral and essential part thereof, with the value and force of covenants between the Parties.

Headings: The headings of the clauses and sub-clauses of this Agreement are for ease of reference only and shall not affect the interpretation of this Agreement.

Recitals and Clauses: Any reference in this Agreement to a “Recital” or a “Clause” shall be a reference to a recital or a clause of this Agreement, unless the contrary is indicated.

 

3

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

Laws, Regulations, Contracts and Documents: Any reference in this Agreement to a law, a regulation, a contract or a document shall be a reference to such law, regulation, contract or document as amended from time to time (and including after the date of this Agreement), unless the contrary is expressly indicated or anyway required by the context.

Definitions: In this Agreement, the following capitalised terms shall have the following meanings:

“Affiliate” means—with respect to any person an individual—corporation, partnership, firm, association, unincorporated organization or other entity directly or indirectly controlling, controlled by or under common control with such person.

“Agreement” means this debt assignment and share transfer agreement.

“Capital Increases” has the meaning ascribed thereto in Recital B.

“Civil Code” means the Italian civil code, as approved by the Royal Decree dated 16 March 1942, No. 262, as subsequently amended.

“Debt Restructuring Agreement” has the meaning ascribed thereto in Recital D.

“Effective Date” means the date on which all the conditions precedent set forth in Clause 5 have occurred or have been waived pursuant to Clause 5.2.

“Encumbrance” means any lien, pledge, charge, encumbrance or other security interest (or an agreement or commitment to create any of them), legal proceeding (such as seizure), easement, license, claim, other rights in-rem, including option rights, pre-emption rights, rights of first refusal or veto rights, restriction on title, rights under forward or preliminary sales, transfer or exercise of any other attribute of ownership or other restriction or limitation of any kind whatsoever.

“Investment Agreement” has the meaning ascribed thereto in Recital E.

 

4

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

“Italian Bankruptcy Law” or “IBR” means the Italian bankruptcy law set out by Regio Decreto 16 marzo 1942, n. 267 as subsequently amended.

“Manitex Capital Increase” has the meaning ascribed thereto in Recital B.

“O&S” means Oil&Steel s.p.a. with registered office at 22 Via Verdi, San Ceario sul Panaro (MO), a company 100% owned by PM.

“O&S Capital Increase” has the meaning ascribed thereto in Recital C.

“O&S Extraordinary Shareholders’ Meeting” has the meaning ascribed thereto in Recital C.

“Pilosio” means Pilosio S.p.A. with registered office at Via Fermi 45, Tavagnacco (UD).

“Pilosio Transfer Agreement” has the meaning ascribed thereto in Recital F.

“PM’s Extraordinary Shareholders’ Meeting” has the meaning ascribed thereto in Recital B.

“Shareholders Capital Increase” has the meaning ascribed thereto in Recital B.

“Signing Date” means the date on which this Agreement has been subscribed by all the Parties.

“UC Debts” has the meaning ascribed thereto in Recital D.

 

2. ASSIGNMENT

 

2.1 Subject to the conditions precedent set out in Clause 5 below and to the payment of the price provided for by Clause 2.5, UC hereby assigns to Manitex, which purchases, with effect as of the Effective Date, the UC Debts.

 

2.2 Manitex undertakes to communicate to PM, Polo Holdings S.à.r.l. and to the Agent (as defined in the Debt Restructuring Agreement) that the assignment of the UC Debts has been perfected within the day following to the day on which such assignment has been actually perfected.

 

5

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

2.3 The UC Debts are assigned as unsecured monetary claims and, for the sake of clarity, all the relevant guaranties (mortgage and pledges) shall not be transferred to Manitex.

 

2.4 The transfer of the UC Debts is made pro soluto (without recourse), it being understood that UC does not give any representation and warranty on the solvency or the performance by PM or of its guarantors for any title of its payment obligations.

 

2.5 The price of the UC Debts is agreed in an overall amount of Euro 1,500,000.00 (one million five hundred thousand/00) (the “Price”).

 

2.6 The Price shall be paid by Manitex to UC in one installment on the Effective Date.

 

2.7 Manitex shall have the right to designate a person to become a party to this Agreement provided that such designation is made in compliance with the following provisions:

(a) such designation will be made in writing and sent together with the written acceptance of the person so designated by the Effective Date;

(b) such person will be an Affiliate of Manitex incorporated in Europe or the United Kingdom;

(c) Manitex will be jointly liable with the designated person without any condition of prior enforcement against the designated person (senza beneficio dell’escussione del terzo) for the correct execution of the transactions contemplated in this Agreement and such joint liability will be confirmed in the notice under paragraph (a) above.

 

3. REPRESENTATIONS AND WARRANTIES OF UC

 

3.1 UC hereby makes the following representations and warranties to Manitex, each of which shall be true and correct also on the Effective Date:

 

  3.1.1 UC is a bank duly incorporated, validly existing and in good standing under the laws of Italy;

 

  3.1.2 all corporate acts and other proceedings required to be taken by or on behalf of UC to authorize UC to enter into and to carry out this Agreement have been duly and properly taken, and this Agreement has been duly executed and delivered by UC and constitutes the valid and binding obligation of UC enforceable against UC in accordance with its terms;

 

6

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

  3.1.3 no application to, or filing with, or consent, authorization or approval of, or license, permit, registration, declaration or exemption by, any governmental or public body or authority is required of UC under Italian law in connection with the execution and performance of this Agreement;

 

  3.1.4 the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not conflict with, or result in the breach of, or constitute a default under, the articles of incorporation or the by-laws of UC or the Loan Agreement;

 

  3.1.5 UC is the exclusive owner of the UC Debts that are clear and free from any Encumbrance and UC has the full right, power and authority to sell, assign, transfer and deliver the UC Debts in accordance with the terms of this Agreement, also due to the consent, given by the Company and by BPER pursuant to the Debt Restructuring Agreement, to the assignment hereof;

 

  3.1.6 on the Effective Date, the UC Debts will be freely transferable under the Loan Agreement, also due to the consent, given by the Company and by BPER pursuant to the Debt Restructuring Agreement and to the assignment hereof;

 

  3.1.7 the UC Debts are valid and existing pursuant to article 1266 of the Civil Code and, pursuant to Paragraph 5.1.2 of the Debt Restructuring Agreement will be due and payable on the Effective Date, including without limitation the UC Debts which are not yet due and payable on the date hereof;

 

  3.1.8 the principal amount of the UC Debts on the date hereof is and will be on the Effective Date equal to Euro 10,000,000.00 (ten million/00);

 

7

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

  3.1.9 the Loan Agreement is valid and enforceable and neither the UC Debts nor the Loan Agreement are subject to any objection, action or claim of whatever nature by PM and/or any dispute, legal proceedings, arbitration or legal action pending, imminent or threatened by PM or any third party;

 

  3.1.10 UC has correctly, completely and diligently kept and shall correctly, completely and diligently keep until the Effective Date the books, records, data and documents regarding the UC Debts in compliance with all requirements of applicable Italian laws and regulations;

 

  3.1.11 the transactions described in this Agreement do not violate any applicable Italian laws;

 

  3.1.12 UC has not 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 Manitex or any of its Affiliates.

 

3.2 UC shall indemnify and hold Manitex harmless in respect of all losses or damages incurred or suffered by Manitex as a result of any representations and warranties not being true and correct and/or the breach by UC of any covenants and/or obligations contained in this Agreement.

 

4. REPRESENTATIONS AND WARRANTIES AND OTHER UNDERTAKINGS REGARDING THE MANITEX SHARES

 

4.1 Manitex hereby makes the following representations and warranties to UC, each of which shall be true and correct also on the Effective Date:

 

  4.1.1 Manitex is a corporation duly incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation;

 

  4.1.2 all corporate acts and other proceedings required to be taken by or on behalf of Manitex to authorize Manitex to enter into and to carry out this Agreement have been duly and properly taken, and this Agreement has been duly executed and delivered by Manitex and constitutes the valid and binding obligation of Manitex enforceable against Manitex in accordance with its terms;

 

8

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

  4.1.3 no application to, or filing with, or consent, authorization or approval of, or license, permit, registration, declaration or exemption by, any governmental or public body or authority is required of Manitex in connection with the execution and performance of this Agreement;

 

  4.1.4 the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not conflict with, or result in the breach of, or constitute a default under, the articles of incorporation or the by-laws of Manitex;

 

  4.1.5 Manitex has not 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 UC or any of its Affiliates;

 

  4.1.6 Manitex acknowledges that its participation in the transactions contemplated by this Agreement may involve tax consequences and that UC has not provided to Manitex any tax advice or information related thereto. Manitex acknowledges that it must retain its own professional advisors to evaluate the tax and other consequences of the payment of the Price.

 

4.2 Manitex shall indemnify and hold UC harmless in respect of all losses or damages incurred or suffered by UC as a result of any representations and warranties not being true and correct and/or the breach by Manitex of any covenants and/or obligations contained in this Agreement.

 

4.3 Manitex (i) shall use the UC Debts to pay-in by way of set-off, for an equal amount, the Manitex Capital Increase; and (ii) shall not claim for the payment of the UC Debts and/or accept payments and/or enforce them any way other than as provided in paragraph (i).

 

9

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

5. CONDITIONS PRECEDENT

 

5.1 The assignment shall become effective subject to the occurrence, not later than 31 January 2015, of the following conditions precedent:

 

  5.1.1 the competent court will have confirmed the Debt Restructuring Agreement pursuant to article 182-bis of the IBL (omologazione dell’accordo di ristrutturazione dei debiti);

 

  5.1.2 the board of directors of PM will have confirmed in writing to Manitex that the decision of the court confirming the Debt Restructuring Agreement pursuant to article 182bis of the IBL has not been timely challenged under article 182bis, paragraph 5, of the IBL or, alternatively, that any challenge have been rejected by the competent court;

 

  5.1.3 PM’s Extraordinary Shareholders’ Meeting will have approved the Capital Increases in accordance with the terms and conditions set out in Recital B;

 

  5.1.4 the O&S Extraordinary Shareholders’ Meeting will have approved the O&S Capital Increase in accordance with the terms and conditions set out in Recital C;

 

  5.1.5 the shareholders meeting of PM and O&S will have approved the respective financial statements as at 31 December 2013 with the same contents of the draft financial statements attached hereto as Annexes (A) and (B);

 

  5.1.6 PM will have approved the audited consolidated financial statements of PM as at 31 December 2013 and the auditing company of PM will have released a clean opinion thereon except for possible qualifications in respect of PM’s going concern;

 

10

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

  5.1.7 the auditing company of PM will have released a clean opinion on the consolidated financial statements of PM (excluding Pilosio and its subsidiaries), including (i) the statements of income, comprehensive income, cash flows and changes in equity for the three years ended respectively on 31 December 2011, 31 December 2012 and 31 December 2013 and (ii) the balance sheets for the two years ended on 31 December 2012 and 31 December 2013 (the “PM Group carve-out year-end consolidated financial statements”) except for possible qualifications in respect of PM’s going concern;

 

  5.1.8 the Shareholders Capital Increase (offered in preemption to the current shareholders of PM) shall not have been subscribed in full within the deadline set by the resolution of the PM’s Extraordinary Shareholders Meeting;

 

  5.1.9 the directors of PM and O&S currently in office will have handed in their resignations to take effect as of the date of execution of the Manitex Capital Increase;

 

  5.1.10 the board of directors of PM and the board of directors of O&S will have convened the respective ordinary shareholders meeting on the date scheduled for the execution of the Manitex Capital Increase for the purpose of electing new directors and statutory auditors (if any) in lieu of those leaving the office;

 

  5.1.11 no order, injunction, judgment or decree issued by any governmental or judicial authority or other legal restraint or prohibition preventing the subscription for the Manitex Capital Increase will be in effect;

 

  5.1.12 none of the following events, changes or circumstances shall have occurred prior to the Effective Date:

a. a disruption in the financial, banking, lending, debt or capital markets or in securities settlement or clearance services in the United States preventing Manitex from subscribing and/or completing the Manitex Capital Increase;

b. suspension or material limitation in trading in securities in general preventing Manitex from subscribing and/or completing the Manitex Capital Increase;

 

11

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

c. a Material Adverse Effect (Effetto Pregiudizievole Significativo) as defined in the Debt Restructuring Agreement, unless cured by the Effective Date;

 

  5.1.13 Manitex and UC will have entered into an assignment agreement for the transfer from UC to Manitex of debts towards PM for an amount of Euro 8,750,000.00 (eight million seven hundred fifty thousand/00), against the issuance of 430,000 Manitex shares to UC;

 

  5.1.14 Manitex and BPER will have entered into (i) an assignment agreement corresponding to this Agreement for the transfer from BPER to Manitex of debts towards PM for an amount of Euro 5,000,000.00 (five million/00) against the payment of Euro 1,500,000.00 (one million five hundred thousand/00) and (ii) an assignment agreement for the transfer from BPER to Manitex of debts towards PM for an amount of Euro 8,750,000.00 (eight million seven hundred fifty thousand/00), against the issuance of 430,000 Manitex shares to BPER.

 

5.3 Manitex and UC may at any time jointly (and not severally) waive in whole or in part and conditionally or unconditionally the conditions set out in article 6.1 by written notice to the other parties.

 

5.4 If any of the conditions precedent under article 5.1 has not occurred or been waived on or prior to 31 January 2015, this Agreement shall be definitively without effect.

 

5.5 Without prejudice to the provisions under Clause 5.4, Manitex will become the owner of the UC Debts when, on the Effective Date, the Price will be paid.

 

6. CONDITIONS SUBSEQUENT

 

6.1 This Agreement shall terminate automatically and with retroactive effects pursuant to Article 1353 of the Italian Civil Code in the event that the Manitex Capital Increase has not been fully underwritten and paid in by Manitex by and no later than five days from the Effective Date.

 

12

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

7. PM ACCEPTANCE

 

7.1 Manitex, pursuant to Articles 1264 and 1265 of the Italian Civil Code, shall notify the assignment with legal date of the UC Debts provided for in this Agreement to PM or shall procure that PM accepts with legal date the assignment of the UC Debts provided for in this Agreement.

 

8. TAXES, COSTS AND EXPENSES

 

8.1 Manitex shall bear all the taxes, costs and expenses incurred in connection with the entering into, execution, or amendment of this Agreement other then advisory fees that shall be borne by each party.

 

9. GOVERNING LAW AND JURISDICTION

 

9.1 This agreement is governed by and shall be construed in accordance with the laws of Italy, without prejudice to any mandatory provision under US law applicable to the issuance of the Manitex Shares.

 

9.2 The Courts of Milan shall have exclusive jurisdiction in respect of any dispute arising out of this agreement.

 

10. ATTACHMENTS

Annex (A)        draft financial statements of PM

Annex (B)        draft financial statements of O&S”

- - - o 0 o - - -

We execute this letter in sign of acceptance of the debt assignment agreement copied above.

 

Best regards
  /s/ Andrew M. Rooke
Manitex International Inc.

Andrew Rooke, President and COO

 

13

Messrs.

Manitex International Inc.

9725 Industrial Drive,

Bridgeview, Illinois, USA

Modena (Italy), 21 July 2014

Dear Sirs,

We refer to our previous conversations and we hereby propose you the following:

DEBTS ASSIGNMENT AGREEMENT

BETWEEN

Unicredit S.p.A., with registered office in Rome, Via Alessandro Specchi 16, registered with the Register of Enterprises of Rome, Taxpayer’s Code and VAT No. 00348170101, duly represented by Giuseppe Izzo duly empowered (“UC”):

AND

Manitex International Inc., a company established under the laws of Illinois (USA), with registered office in 9725 Industrial Drive, Bridgeview, Illinois (USA), duly represented by Andrew Rooke, president and chief operating officer authorized by the board of directors with resolution on 10 July 2014 (“Manitex”)

WHEREAS

 

(A) Pursuant to a loan agreement entered into on 30 January 2009 between, inter alios, UC and PM Group S.p.A. (“PM”), UC has granted and advanced to PM a loan for a maximum amount of Euro 76.500.000,00, secured by a mortgage and three pledges over shares of PM, Pilosio S.p.A. and Oil & Steel S.p.A. (as subsequently amended, even by the Debt Restructuring Agreement (as defined below)) (the “Loan Agreement”).

 

1

(B) On 10 June 2014 the board of directors of PM resolved to call in the extraordinary shareholders meeting of PM on 30 June 2014 in first call and 30 July 2014 in second call (hereinafter the “PM’s Extraordinary Shareholders’ Meeting”) to resolve on the following actions (hereinafter collectively the “Capital Increases”):

 

  (i) a capital increase in PM for Euro 10,000,000.00 (ten million/00), with a share premium equal to Euro 7,927,316.00 (seven million nine hundred twenty seven thousand three hundred sixteen/00) and a non-repayable contribution equal to Euro 26,572,684.00 (twenty six million five hundred seventy two thousand six hundred eighty four/00) to cover losses, - conditional upon full subscription thereof (inscindibile)—to be subscribed for by the current shareholders and paid-in in cash and/or by way of set-off of due claims of the shareholders against PM (hereinafter the “Shareholders Capital Increase”); or, alternatively

 

  (ii) a capital increase in PM for Euro 10,000,000.00 (ten million/00), with a share premium equal to Euro 7,927,316.00 (seven million nine hundred twenty seven thousand three hundred sixteen/00) and a non-repayable contribution equal to 26,572,648.00 (twenty six million five hundred seventy two thousand six hundred eighty four/00) to cover losses - conditional upon full subscription thereof (inscindibile)—to be subscribed for by Manitex and paid–in in cash and/or by way of set-off of due claims of Manitex against PM (hereinafter the “Manitex Capital Increase”).

 

(C) On 10 June 2014 the board of directors of O&S (as defined below) resolved to call in the extraordinary shareholders meeting of O&S (as defined below) (hereinafter the “O&S Extraordinary Shareholders’ Meeting”) to resolve on a capital increase, divided into two tranches, one for Euro 1,000,000.00 (one million/00) with share premium of 2,500,996.00 (Two million five hundred thousand nine hundred ninety six/00) – conditional upon full subscription thereof (inscindibile) - and the second one, that can be subscribed also partially, for Euro 600,000.00 (six hundred thousand/00) in any case with a non-repayable contribution equal to 6,197,686.00 (Six million one hundred ninety seven thousand six hundred eighty six/00) to cover losses, to be paid-in in cash or by way of set-off of due claims of PM against O&S (hereinafter the “O&S Capital Increase”).

 

2

(D) On the date hereof, PM entered into with its banks a debt restructuring agreement (Accordo di Ristrutturazione) pursuant to Article 182-bis of the Italian Bankruptcy Law (as defined below) (the “Debt Restructuring Agreement”). The Debt Restructuring Agreement provides, inter alia, that UC will assign without recourse to Manitex overdue debts under the Loan Agreement equal to Euro 10,000,000.00 (ten million/00) arising from the Loan Agreement (the “UC Debts”) against the payment of a price equal to Euro 1,500,000.00 (one million five hundred thousand/00).

 

(E) On the date hereof, Manitex entered into an investment agreement with the majority shareholder of PM (the “Investment Agreement”) in respect of the subscription by Manitex for the Manitex Capital Increase.

 

(F) On the date hereof, PM entered into with Polo Holdings S.à r.l. (“Polo Holdings”, a company 100% held by Columna Holdings Limited) a share purchase agreement (the “Pilosio Transfer Agreement”) in connection with the transfer of 100% of the equity interest in Pilosio (as defined below) and Polo Holdings paid Euro 1,000,000.00 (one million) into an escrow account.

 

(G) UC and Manitex intend hereby to assign the UC Debts to Manitex on the terms and conditions set out in this Agreement.

Now, therefore, it is agreed as follows.

 

1. DEFINITIONS and CONSTRUCTION

Recitals: The recitals of this Agreement are an integral and essential part thereof, with the value and force of covenants between the Parties.

Headings: The headings of the clauses and sub-clauses of this Agreement are for ease of reference only and shall not affect the interpretation of this Agreement.

Recitals and Clauses: Any reference in this Agreement to a “Recital” or a “Clause” shall be a reference to a recital or a clause of this Agreement, unless the contrary is indicated.

 

3

Laws, Regulations, Contracts and Documents: Any reference in this Agreement to a law, a regulation, a contract or a document shall be a reference to such law, regulation, contract or document as amended from time to time (and including after the date of this Agreement), unless the contrary is expressly indicated or anyway required by the context.

Definitions: In this Agreement, the following capitalised terms shall have the following meanings:

“Affiliate” means—with respect to any person an individual—corporation, partnership, firm, association, unincorporated organization or other entity directly or indirectly controlling, controlled by or under common control with such person.

“Agreement” means this debt assignment and share transfer agreement.

“Capital Increases” has the meaning ascribed thereto in Recital B.

“Civil Code” means the Italian civil code, as approved by the Royal Decree dated 16 March 1942, No. 262, as subsequently amended.

“Debt Restructuring Agreement” has the meaning ascribed thereto in Recital D.

“Effective Date” means the date on which all the conditions precedent set forth in Clause 5 have occurred or have been waived pursuant to Clause 5.2.

“Encumbrance” means any lien, pledge, charge, encumbrance or other security interest (or an agreement or commitment to create any of them), legal proceeding (such as seizure), easement, license, claim, other rights in-rem, including option rights, pre-emption rights, rights of first refusal or veto rights, restriction on title, rights under forward or preliminary sales, transfer or exercise of any other attribute of ownership or other restriction or limitation of any kind whatsoever.

“Investment Agreement” has the meaning ascribed thereto in Recital E.

 

4

“Italian Bankruptcy Law” or “IBR” means the Italian bankruptcy law set out by Regio Decreto 16 marzo 1942, n. 267 as subsequently amended.

“Manitex Capital Increase” has the meaning ascribed thereto in Recital B.

“O&S” means Oil&Steel s.p.a. with registered office at 22 Via Verdi, San Ceario sul Panaro (MO), a company 100% owned by PM.

“O&S Capital Increase” has the meaning ascribed thereto in Recital C.

“O&S Extraordinary Shareholders’ Meeting” has the meaning ascribed thereto in Recital C.

“Pilosio” means Pilosio S.p.A. with registered office at Via Fermi 45, Tavagnacco (UD).

“Pilosio Transfer Agreement” has the meaning ascribed thereto in Recital F.

“PM’s Extraordinary Shareholders’ Meeting” has the meaning ascribed thereto in Recital B.

“Shareholders Capital Increase” has the meaning ascribed thereto in Recital B.

“Signing Date” means the date on which this Agreement has been subscribed by all the Parties.

“UC Debts” has the meaning ascribed thereto in Recital D.

 

2. ASSIGNMENT

 

2.1 Subject to the conditions precedent set out in Clause 5 below and to the payment of the price provided for by Clause 2.5, UC hereby assigns to Manitex, which purchases, with effect as of the Effective Date, the UC Debts.

 

2.2 Manitex undertakes to communicate to PM, Polo Holdings S.à.r.l. and to the Agent (as defined in the Debt Restructuring Agreement) that the assignment of the UC Debts has been perfected within the day following to the day on which such assignment has been actually perfected.

 

5

2.3 The UC Debts are assigned as unsecured monetary claims and, for the sake of clarity, all the relevant guaranties (mortgage and pledges) shall not be transferred to Manitex.

 

2.4 The transfer of the UC Debts is made pro soluto (without recourse), it being understood that UC does not give any representation and warranty on the solvency or the performance by PM or of its guarantors for any title of its payment obligations.

 

2.5 The price of the UC Debts is agreed in an overall amount of Euro 1,500,000.00 (one million five hundred thousand/00) (the “Price”).

 

2.6 The Price shall be paid by Manitex to UC in one installment on the Effective Date.

 

2.7 Manitex shall have the right to designate a person to become a party to this Agreement provided that such designation is made in compliance with the following provisions:

(a) such designation will be made in writing and sent together with the written acceptance of the person so designated by the Effective Date;

(b) such person will be an Affiliate of Manitex incorporated in Europe or the United Kingdom;

(c) Manitex will be jointly liable with the designated person without any condition of prior enforcement against the designated person (senza beneficio dell’escussione del terzo) for the correct execution of the transactions contemplated in this Agreement and such joint liability will be confirmed in the notice under paragraph (a) above.

 

3. REPRESENTATIONS AND WARRANTIES OF UC

 

3.1 UC hereby makes the following representations and warranties to Manitex, each of which shall be true and correct also on the Effective Date:

 

  3.1.1 UC is a bank duly incorporated, validly existing and in good standing under the laws of Italy;

 

  3.1.2 all corporate acts and other proceedings required to be taken by or on behalf of UC to authorize UC to enter into and to carry out this Agreement have been duly and properly taken, and this Agreement has been duly executed and delivered by UC and constitutes the valid and binding obligation of UC enforceable against UC in accordance with its terms;

 

6

  3.1.3 no application to, or filing with, or consent, authorization or approval of, or license, permit, registration, declaration or exemption by, any governmental or public body or authority is required of UC under Italian law in connection with the execution and performance of this Agreement;

 

  3.1.4 the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not conflict with, or result in the breach of, or constitute a default under, the articles of incorporation or the by-laws of UC or the Loan Agreement;

 

  3.1.5 UC is the exclusive owner of the UC Debts that are clear and free from any Encumbrance and UC has the full right, power and authority to sell, assign, transfer and deliver the UC Debts in accordance with the terms of this Agreement, also due to the consent, given by the Company and by BPER pursuant to the Debt Restructuring Agreement, to the assignment hereof;

 

  3.1.6 on the Effective Date, the UC Debts will be freely transferable under the Loan Agreement, also due to the consent, given by the Company and by BPER pursuant to the Debt Restructuring Agreement and to the assignment hereof;

 

  3.1.7 the UC Debts are valid and existing pursuant to article 1266 of the Civil Code and, pursuant to Paragraph 5.1.2 of the Debt Restructuring Agreement will be due and payable on the Effective Date, including without limitation the UC Debts which are not yet due and payable on the date hereof;

 

  3.1.8 the principal amount of the UC Debts on the date hereof is and will be on the Effective Date equal to Euro 10,000,000.00 (ten million/00);

 

  3.1.9 the Loan Agreement is valid and enforceable and neither the UC Debts nor the Loan Agreement are subject to any objection, action or claim of whatever nature by PM and/or any dispute, legal proceedings, arbitration or legal action pending, imminent or threatened by PM or any third party;

 

7

  3.1.10 UC has correctly, completely and diligently kept and shall correctly, completely and diligently keep until the Effective Date the books, records, data and documents regarding the UC Debts in compliance with all requirements of applicable Italian laws and regulations;

 

  3.1.11 the transactions described in this Agreement do not violate any applicable Italian laws;

 

  3.1.12 UC has not 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 Manitex or any of its Affiliates.

 

3.2 UC shall indemnify and hold Manitex harmless in respect of all losses or damages incurred or suffered by Manitex as a result of any representations and warranties not being true and correct and/or the breach by UC of any covenants and/or obligations contained in this Agreement.

 

4. REPRESENTATIONS AND WARRANTIES AND OTHER UNDERTAKINGS REGARDING THE MANITEX SHARES

 

4.1 Manitex hereby makes the following representations and warranties to UC, each of which shall be true and correct also on the Effective Date:

 

  4.1.1 Manitex is a corporation duly incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation;

 

  4.1.2 all corporate acts and other proceedings required to be taken by or on behalf of Manitex to authorize Manitex to enter into and to carry out this Agreement have been duly and properly taken, and this Agreement has been duly executed and delivered by Manitex and constitutes the valid and binding obligation of Manitex enforceable against Manitex in accordance with its terms;

 

8

  4.1.3 no application to, or filing with, or consent, authorization or approval of, or license, permit, registration, declaration or exemption by, any governmental or public body or authority is required of Manitex in connection with the execution and performance of this Agreement;

 

  4.1.4 the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not conflict with, or result in the breach of, or constitute a default under, the articles of incorporation or the by-laws of Manitex;

 

  4.1.5 Manitex has not 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 UC or any of its Affiliates;

 

  4.1.6 Manitex acknowledges that its participation in the transactions contemplated by this Agreement may involve tax consequences and that UC has not provided to Manitex any tax advice or information related thereto. Manitex acknowledges that it must retain its own professional advisors to evaluate the tax and other consequences of the payment of the Price.

 

4.2 Manitex shall indemnify and hold UC harmless in respect of all losses or damages incurred or suffered by UC as a result of any representations and warranties not being true and correct and/or the breach by Manitex of any covenants and/or obligations contained in this Agreement.

 

4.3 Manitex (i) shall use the UC Debts to pay-in by way of set-off, for an equal amount, the Manitex Capital Increase; and (ii) shall not claim for the payment of the UC Debts and/or accept payments and/or enforce them any way other than as provided in paragraph (i).

 

9

5. CONDITIONS PRECEDENT

 

5.1 The assignment shall become effective subject to the occurrence, not later than 31 January 2015, of the following conditions precedent:

 

  5.1.1 the competent court will have confirmed the Debt Restructuring Agreement pursuant to article 182-bis of the IBL (omologazione dell’accordo di ristrutturazione dei debiti);

 

  5.1.2 the board of directors of PM will have confirmed in writing to Manitex that the decision of the court confirming the Debt Restructuring Agreement pursuant to article 182bis of the IBL has not been timely challenged under article 182bis, paragraph 5, of the IBL or, alternatively, that any challenge have been rejected by the competent court;

 

  5.1.3 PM’s Extraordinary Shareholders’ Meeting will have approved the Capital Increases in accordance with the terms and conditions set out in Recital B;

 

  5.1.4 the O&S Extraordinary Shareholders’ Meeting will have approved the O&S Capital Increase in accordance with the terms and conditions set out in Recital C;

 

  5.1.5 the shareholders meeting of PM and O&S will have approved the respective financial statements as at 31 December 2013 with the same contents of the draft financial statements attached hereto as Annexes (A) and (B);

 

  5.1.6 PM will have approved the audited consolidated financial statements of PM as at 31 December 2013 and the auditing company of PM will have released a clean opinion thereon except for possible qualifications in respect of PM’s going concern;

 

  5.1.7 the auditing company of PM will have released a clean opinion on the consolidated financial statements of PM (excluding Pilosio and its subsidiaries), including (i) the statements of income, comprehensive income, cash flows and changes in equity for the three years ended respectively on 31 December 2011, 31 December 2012 and 31 December 2013 and (ii) the balance sheets for the two years ended on 31 December 2012 and 31 December 2013 (the “PM Group carve-out year-end consolidated financial statements”) except for possible qualifications in respect of PM’s going concern;

 

10

  5.1.8 the Shareholders Capital Increase (offered in preemption to the current shareholders of PM) shall not have been subscribed in full within the deadline set by the resolution of the PM’s Extraordinary Shareholders Meeting;

 

  5.1.9 the directors of PM and O&S currently in office will have handed in their resignations to take effect as of the date of execution of the Manitex Capital Increase;

 

  5.1.10 the board of directors of PM and the board of directors of O&S will have convened the respective ordinary shareholders meeting on the date scheduled for the execution of the Manitex Capital Increase for the purpose of electing new directors and statutory auditors (if any) in lieu of those leaving the office;

 

  5.1.11 no order, injunction, judgment or decree issued by any governmental or judicial authority or other legal restraint or prohibition preventing the subscription for the Manitex Capital Increase will be in effect;

 

  5.1.12 none of the following events, changes or circumstances shall have occurred prior to the Effective Date:

a. a disruption in the financial, banking, lending, debt or capital markets or in securities settlement or clearance services in the United States preventing Manitex from subscribing and/or completing the Manitex Capital Increase;

b. suspension or material limitation in trading in securities in general preventing Manitex from subscribing and/or completing the Manitex Capital Increase;

c. a Material Adverse Effect (Effetto Pregiudizievole Significativo) as defined in the Debt Restructuring Agreement, unless cured by the Effective Date;

 

  5.1.13 Manitex and UC will have entered into an assignment agreement for the transfer from UC to Manitex of debts towards PM for an amount of Euro 8,750,000.00 (eight million seven hundred fifty thousand/00), against the issuance of 430,000 Manitex shares to UC;

 

11

  5.1.14 Manitex and BPER will have entered into (i) an assignment agreement corresponding to this Agreement for the transfer from BPER to Manitex of debts towards PM for an amount of Euro 5,000,000.00 (five million/00) against the payment of Euro 1,500,000.00 (one million five hundred thousand/00) and (ii) an assignment agreement for the transfer from BPER to Manitex of debts towards PM for an amount of Euro 8,750,000.00 (eight million seven hundred fifty thousand/00), against the issuance of 430,000 Manitex shares to BPER.

 

5.3 Manitex and UC may at any time jointly (and not severally) waive in whole or in part and conditionally or unconditionally the conditions set out in article 6.1 by written notice to the other parties.

 

5.4 If any of the conditions precedent under article 5.1 has not occurred or been waived on or prior to 31 January 2015, this Agreement shall be definitively without effect.

 

5.5 Without prejudice to the provisions under Clause 5.4, Manitex will become the owner of the UC Debts when, on the Effective Date, the Price will be paid.

 

6. CONDITIONS SUBSEQUENT

 

6.1 This Agreement shall terminate automatically and with retroactive effects pursuant to Article 1353 of the Italian Civil Code in the event that the Manitex Capital Increase has not been fully underwritten and paid in by Manitex by and no later than five days from the Effective Date.

 

7. PM ACCEPTANCE

 

7.1 Manitex, pursuant to Articles 1264 and 1265 of the Italian Civil Code, shall notify the assignment with legal date of the UC Debts provided for in this Agreement to PM or shall procure that PM accepts with legal date the assignment of the UC Debts provided for in this Agreement.

 

12

8. TAXES, COSTS AND EXPENSES

 

8.1 Manitex shall bear all the taxes, costs and expenses incurred in connection with the entering into, execution, or amendment of this Agreement other then advisory fees that shall be borne by each party.

 

9. GOVERNING LAW AND JURISDICTION

 

9.1 This agreement is governed by and shall be construed in accordance with the laws of Italy, without prejudice to any mandatory provision under US law applicable to the issuance of the Manitex Shares.

 

9.2 The Courts of Milan shall have exclusive jurisdiction in respect of any dispute arising out of this agreement.

 

10. ATTACHMENTS

Annex (A)         draft financial statements of PM

Annex (B)         draft financial statements of O&S

# # #

If you agree with this proposal, please return to us this letter duly signed by way of acceptance thereof.

 

Kind regards,
/s/ Giuseppe Izzo
Unicredit S.p.A.

 

13

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

Messrs.

Unicredit S.p.A.

Via Alessandro Specchi 16

Rome

Bridgeview, 21 July 2014

Dear Sirs,

we have received your proposal to execute a debt assignment agreement against shares, which we copy herein below:

- - - o 0 o - - -

“TRANSFER AGREEMENT OF UC DEBTS AGAINST MANITEX SHARES

BETWEEN

Unicredit S.p.A., with registered office in Rome, Via Alessandro Specchi 16, registered with the Register of Enterprises of Rome, Taxpayer’s Code and VAT No. 00348170101, duly represented by Giuseppe Izzo duly empowered (“UC”);

AND

Manitex International Inc., a company established under the laws of Illinois (USA), with registered office in 9725 Industrial Drive, Bridgeview, Illinois (USA), duly represented by Andrew Rooke, president and chief operating officer authorized by the board of directors with resolution on 10 July 2014 (“Manitex”);

WHEREAS

 

(A) Pursuant to a loan agreement entered into on 30 January 2009 between, inter alios, UC and PM Group S.p.A. (“PM”), UC has granted and advanced to PM a loan for a maximum amount of Euro 76.500.000,00, secured by a mortgage and three pledges over shares of PM, Pilosio S.p.A. and Oil & Steel S.p.A. (as subsequently amended, even by the Debt Restructuring Agreement (as defined below)) (the “Loan Agreement”).

 

1

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

(B) On 10 June 2014 the board of directors of PM resolved to call in the extraordinary shareholders meeting of PM on 30 June 2014 in first call and 30 July 2014 in second call (hereinafter the “PM’s Extraordinary Shareholders’ Meeting”) to resolve on the following actions (hereinafter collectively the “Capital Increases”):

 

  (i) a capital increase in PM for Euro 10,000,000.00 (ten million/00), with a share premium equal to Euro 7,927,316.00 (seven million nine hundred twenty seven thousand three hundred sixteen/00) and a non-repayable contribution equal to Euro 26,572,684.00 (twenty six million five hundred seventy two thousand six hundred eighty four/00) to cover losses,—conditional upon full subscription thereof (inscindibile)—to be subscribed for by the current shareholders and paid-in in cash and/or by way of set-off of due claims of the shareholders against PM (hereinafter the “Shareholders Capital Increase”); or, alternatively

 

  (ii) a capital increase in PM for Euro 10,000,000.00 (ten million/00), with a share premium equal to Euro 7,927,316.00 (seven million nine hundred twenty seven thousand three hundred sixteen/00) and a non-repayable contribution equal to 26,572,648.00 (twenty six million five hundred seventy two thousand six hundred eighty four/00) to cover losses—conditional upon full subscription thereof (inscindibile)—to be subscribed for by Manitex and paid–in in cash and/or by way of set-off of due claims of Manitex against PM (hereinafter the “Manitex Capital Increase”).

 

(C) On 10 June 2014 the board of directors of O&S (as defined below) resolved to call in the extraordinary shareholders meeting of O&S (as defined below) (hereinafter the “O&S Extraordinary Shareholders’ Meeting”) to resolve on a capital increase, divided into two tranches, one for Euro 1,000,000.00 (one million/00) with share premium of 2,500,996.00 (Two million five hundred thousand nine hundred ninety six/00) – conditional upon full subscription thereof (inscindibile) - and the second one, that can be subscribed also partially, for Euro 600,000.00 (six hundred thousand/00) in any case with a non-repayable contribution equal to 6,197,686.00 (Six million one hundred ninety seven thousand six hundred eighty six/00) to cover losses, to be paid-in in cash or by way of set-off of due claims of PM against O&S (hereinafter the “O&S Capital Increase”).

 

2

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

(D) On the date hereof, PM entered into with its banks a debt restructuring agreement (Accordo di Ristrutturazione) pursuant to Article 182-bis of the Italian Bankruptcy Law (as defined below) (the “Debt Restructuring Agreement”). The Debt Restructuring Agreement provides, inter alia, that UC will assign without recourse to Manitex overdue debts under the Loan Agreement equal to Euro 8,750,000.00 (eight million seven hundred fifty thousand/00) arising from the Loan Agreement (the “UC Debts”) against the issuance by Manitex to UC of the Manitex Shares (as defined below).

 

(E) On the date hereof, Manitex entered into an investment agreement with the majority shareholder of PM (the “Investment Agreement”) in respect of the subscription by Manitex for the Manitex Capital Increase.

 

(F) On the date hereof, PM entered into with Polo Holdings S.à r.l. (“Polo Holdings”, a company 100% held by Columna Holdings Limited) a share purchase agreement (the “Pilosio Transfer Agreement”) in connection with the transfer of 100% of the equity interest in Pilosio (as defined below) and Polo Holdings paid Euro 1,000,000.00 (one million) into an escrow account.

 

(G) UC and Manitex intend hereby: (i) for UC to assign the UC Debts to Manitex; and (ii) for Manitex to issue the Manitex Shares (as defined below) to UC, in each case, on the terms and conditions set out in this Agreement.

Now, therefore, it’s agreed as follows:

 

1. DEFINITIONS and CONSTRUCTION

Recitals: The recitals of this Agreement are an integral and essential part thereof, with the value and force of covenants between the Parties.

Headings: The headings of the clauses and sub-clauses of this Agreement are for ease of reference only and shall not affect the interpretation of this Agreement.

 

3

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

Recitals and Clauses: Any reference in this Agreement to a “Recital” or a “Clause” shall be a reference to a recital or a clause of this Agreement, unless the contrary is indicated.

Laws, Regulations, Contracts and Documents: Any reference in this Agreement to a law, a regulation, a contract or a document shall be a reference to such law, regulation, contract or document as amended from time to time (and including after the date of this Agreement), unless the contrary is expressly indicated or anyway required by the context.

Definitions: In this Agreement, the following capitalised terms shall have the following meanings:

“Affiliate” means—with respect to any person an individual—corporation, partnership, firm, association, unincorporated organization or other entity directly or indirectly controlling, controlled by or under common control with such person.

“Agreement” means this debt assignment and share transfer agreement.

“Capital Increases” has the meaning ascribed thereto in Recital B.

“Civil Code” means the Italian civil code, as approved by the Royal Decree dated 16 March 1942, No. 262, as subsequently amended.

“Debt Restructuring Agreement” has the meaning ascribed thereto in Recital D.

“Effective Date” means the date on which all the conditions precedent set forth in Clause 6 have occurred or have been waived pursuant to Clause 6.2.

“Encumbrance” means any lien, pledge, charge, encumbrance or other security interest (or an agreement or commitment to create any of them), legal proceeding (such as seizure), easement, license, claim, other rights in-rem, including option rights, pre-emption rights, rights of first refusal or veto rights, restriction on title, rights under forward or preliminary sales, transfer or exercise of any other attribute of ownership or other restriction or limitation of any kind whatsoever.

 

4

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

“Investment Agreement” has the meaning ascribed thereto in Recital E.

“Italian Bankruptcy Law” or “IBR” means the Italian bankruptcy law set out by Regio Decreto 16 marzo 1942, n. 267 as subsequently amended.

“Manitex Capital Increase” has the meaning ascribed thereto in Recital B.

“Manitex Shares” means (i) n. 430,000 ordinary shares of common stock of Manitex, representing, at the date hereof, about 3% of Manitex outstanding share capital or (ii) in the event that a Reorganization occurs between the Signing Date and the Effective Date, the shares of Manitex (or any successor thereof) that are, equivalent to the stock exchange value of the Manitex Shares on the Signing Date.

“O&S” means Oil & Steel s.p.a. with registered office at 22 Via Verdi, San Ceario sul Panaro (MO), a company 100% owned by PM.

“O&S Capital Increase” has the meaning ascribed thereto in Recital C.

“O&S Extraordinary Shareholders’ Meeting” has the meaning ascribed thereto in Recital C.

“Pilosio” means Pilosio S.p.A. with registered office at Via Fermi 45, Tavagnacco (UD).

“Pilosio Transfer Agreement” has the meaning ascribed thereto in Recital F.

“PM’s Extraordinary Shareholders’ Meeting” has the meaning ascribed thereto in Recital B.

 

5

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

“Reorganization” means any non-ordinary course change, modification, replacement or transformation (including, without limitation, by effect of a merger, a de-merger, a transformation, a spin-off, a capital decrease (voluntary or compulsory), winding up or a capital increase of Manitex, a cancellation, splitting, regrouping, or replacement of the Manitex Shares with new shares or quotas) of (i) the Manitex Shares; (ii) of rights relating to the Manitex Shares; and/or (iii) of Manitex. The changes, modifications, replacements or transformations under points (i), (ii) and (iii) above may be cumulative and/or repetitive and/or associated.

“Shareholders Capital Increase” has the meaning ascribed thereto in Recital B.

“Signing Date” means the date on which this Agreement has been subscribed by all the Parties.

“UC Debts” has the meaning ascribed thereto in Recital D.

 

2. ASSIGNMENT

 

2.1 Subject to the conditions precedent set out in Clause 6 below and to the completion of the issuance and delivery of the Manitex Shares by Manitex to UC pursuant to Clause 4, UC hereby assigns to Manitex, which purchases, with effect as of the Effective Date, the UC Debts.

 

2.2 Manitex undertakes to communicate to PM, Polo Holdings S.à.r.l. and to the Agent (as defined in the Debt Restructuring Agreement) that the assignment of the UC Debts has been perfected within the day following to the day on which such assignment has been actually perfected.

 

2.3 The UC Debts are assigned as unsecured monetary claims and, for the sake of clarity, all the relevant guaranties (mortgage and pledges) shall not be transferred to Manitex.

 

2.4 The transfer of the UC Debts is made pro soluto (without recourse), it being understood that UC does not give any representation and warranty on the solvency or the performance by PM or of its guarantors for any title of its payment obligations.

 

6

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

2.5 Manitex shall have the right to designate a person to become a party to this Agreement provided that such designation is made in compliance with the following provisions:

 

  (a) such designation will be made in writing and sent together with the written acceptance of the person so designated by the Effective Date;

 

  (b) such person will be an Affiliate of Manitex incorporated in Europe or the United Kingdom;

 

  (c) Manitex will be jointly liable with the designated person without any condition of prior enforcement against the designated person (senza beneficio dell’escussione del terzo) for the correct execution of the transactions contemplated in this Agreement and such joint liability will be confirmed in the notice under paragraph (a) above.

 

3. REPRESENTATIONS AND WARRANTIES OF UC

 

3.1 UC hereby makes the following representations and warranties to Manitex, each of which shall be true and correct also on the Effective Date:

 

  3.1.1 UC is a bank duly incorporated, validly existing and in good standing under the laws of Italy;

 

  3.1.2 all corporate acts and other proceedings required to be taken by or on behalf of UC to authorize UC to enter into and to carry out this Agreement have been duly and properly taken, and this Agreement has been duly executed and delivered by UC and constitutes the valid and binding obligation of UC enforceable against UC in accordance with its terms;

 

  3.1.3 no application to, or filing with, or consent, authorization or approval of, or license, permit, registration, declaration or exemption by, any governmental or public body or authority is required of UC under Italian law in connection with the execution and performance of this Agreement;

 

  3.1.4 the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not conflict with, or result in the breach of, or constitute a default under, the articles of incorporation or the by-laws of UC or the Loan Agreement;

 

7

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

  3.1.5 UC is the exclusive owner of the UC Debts that are clear and free from any Encumbrance and UC has the full right, power and authority to sell, assign, transfer and deliver the UC Debts in accordance with the terms of this Agreement, also due to the consent, given by the Company and by BPER pursuant to the Debt Restructuring Agreement, to the assignment hereof;

 

  3.1.6 on the Effective Date, the UC Debts will be freely transferable under the Loan Agreement, also due to the consent, given by the Company and by BPER pursuant to the Debt Restructuring Agreement and to the assignment hereof;

 

  3.1.7 the UC Debts are valid and existing pursuant to article 1266 of the Civil Code and, pursuant to Paragraph 5.1.2 of the Debt Restructuring Agreement will be due and payable on the Effective Date, including without limitation the UC Debts which are not yet due and payable on the date hereof;

 

  3.1.8 the principal amount of the UC Debts on the date hereof is and will be on the Effective Date equal to Euro 8,750,000.00 (eight million seven hundred fifty thousand/00);

 

  3.1.9 the Loan Agreement is valid and enforceable and neither the UC Debts nor the Loan Agreement are subject to any objection, action or claim of whatever nature by PM and/or any dispute, legal proceedings, arbitration or legal action pending, imminent or threatened by PM or any third party;

 

  3.1.10 UC has correctly, completely and diligently kept and shall correctly, completely and diligently keep until the Effective Date the books, records, data and documents regarding the UC Debts in compliance with all requirements of applicable Italian laws and regulations;

 

8

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

  3.1.11 the transactions described in this Agreement, including UC’s payment for, and UC’s continued beneficial ownership of, the Manitex Shares will not violate any applicable Italian laws;

 

  3.1.12 UC has not 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 Manitex or any of its Affiliates;

 

  3.1.13 UC acknowledges that its participation in the transactions contemplated by this Agreement, including the issuance of the Manitex Shares by Manitex to UC in accordance with the terms hereof, may involve tax consequences and that Manitex has not provided to UC any tax advice or information related thereto. UC acknowledges that it must retain its own professional advisors to evaluate the tax and other consequences of an investment in the Manitex Shares.

 

3.2 UC shall indemnify and hold Manitex harmless in respect of all losses or damages incurred or suffered by Manitex as a result of any representations and warranties not being true and correct and/or the breach by UC of any covenants and/or obligations contained in this Agreement.

 

4. MANITEX SHARES ISSUANCE

 

4.1 Subject to the terms and conditions hereof, on the Effective Date, Manitex shall (i) issue Manitex Shares to UC and shall duly and validly deliver to UC the relevant share certificates in a manner legally sufficient to transfer to UC full title to the Manitex Shares, free and clear of any Encumbrances; and (ii) execute and deliver, or cause to be executed and delivered, such transfer or other instruments or documents as may be necessary, under applicable law, to transfer to UC full title to the Manitex Shares, free and clear of any Encumbrances and to otherwise properly effect the purposes of this Agreement; (iii) deliver a declaration from a US lawyer with a translation in Italian attached thereto in the form as per Annex (A); (iv) deliver the declaration of the secretary of Manitex confirming the occurrence of the correct issuance and registration of the Manitex Shares to UC in the form as per Annex (B).

 

9

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

5. REPRESENTATIONS AND WARRANTIES AND OTHER UNDERTAKINGS REGARDING THE MANITEX SHARES

 

5.1 Manitex hereby makes the following representations and warranties to UC, each of which shall be true and correct also on the Effective Date:

 

  5.1.1 Manitex is a corporation duly incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation;

 

  5.1.2 all corporate acts and other proceedings required to be taken by or on behalf of Manitex to authorize Manitex to enter into and to carry out this Agreement have been duly and properly taken, and this Agreement has been duly executed and delivered by Manitex and constitutes the valid and binding obligation of Manitex enforceable against Manitex in accordance with its terms;

 

  5.1.3 no application to, or filing with, or consent, authorization or approval of, or license, permit, registration, declaration or exemption by, any governmental or public body or authority is required of Manitex in connection with the execution and performance of this Agreement;

 

  5.1.4 the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not conflict with, or result in the breach of, or constitute a default under, the articles of incorporation or the by-laws of Manitex;

 

  5.1.5 Manitex has not 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 UC or any of its Affiliates;

 

10

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

  5.1.6 the Manitex Shares to be issued pursuant to the terms of this Agreement, when issued transferred and delivered in accordance with the terms of this Agreement for the consideration set forth herein, will be duly and validly issued, fully paid and non-assessable, and shall be issued free and clear of any Encumbrances;

 

  5.1.7 as of the Signing Date, there are 13,822,169 outstanding Manitex Shares and Manitex is not aware, to be best of its knowledge, of any other issuance of its shares and\or of any Reorganization to occur prior to the Effective Date;

 

  5.1.8 Manitex represents, and UC acknowledges, that the issuance of the Manitex Shares pursuant to the terms of this Agreement has not been reviewed by the United States Securities and Exchange Commission (the “SEC”) because it is intended to be a non-public offering, exempted from the registration requirements of the Securities Act of 1933, as amended (the “1933 Act”);

 

  5.1.9 Manitex represents, and UC acknowledges, that any physical certificates representing the Manitex Shares, until such time as such Manitex Shares have been registered under the 1933 Act, shall bear a customary restrictive legend for privately issued, unregistered shares of Manitex common stock which states that the shares may not be sold unless they have been registered with the SEC or an exemption from such registration is available;

 

  5.1.10 Manitex further represents that after UC has held the Manitex Shares for a period of six months, UC ought to be able to sell the Manitex Shares without restriction pursuant to Rule 144 under the 1933 Act, which provides that a holder of restricted securities issued by a SEC reporting company may sell such restricted securities without restriction after holding them for six months, provided that the holder is not an affiliate of the SEC reporting company and the SEC reporting company is current in its SEC filing requirements;

 

  5.1.11

Manitex acknowledges that its participation in the transactions contemplated by this Agreement, including the issuance of the Manitex Shares by Manitex to UC in accordance with the terms hereof, may involve tax consequences and that UC has not provided

 

11

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

  to Manitex any tax advice or information related thereto. Manitex acknowledges that it must retain its own professional advisors to evaluate the tax and other consequences of the issuance of the Manitex Shares;

 

  5.1.12 Manitex has respected the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and has satisfied the “current public information” requirement set forth in Rule 144(c)(1).

 

5.2 Manitex shall indemnify and hold UC harmless in respect of all losses or damages incurred or suffered by UC as a result of any representations and warranties not being true and correct and/or the breach by Manitex of any covenants and/or obligations contained in this Agreement.

 

5.3 Manitex (i) shall use the UC Debts to pay-in by way of set-off, for an equal amount, the Manitex Capital Increase; and (ii) shall not claim for the payment of the UC Debts and/or accept payments and/or enforce them any way other than as provided in paragraph (i).

 

5.4 Manitex undertakes, until the date of the sale of the Manitex Shares by UC (included) (i) to respect the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended; and (ii) to satisfy the “current public information” requirement set forth in Rule 144(c)(1).

 

6. CONDITIONS PRECEDENT

 

6.1 The assignment shall become effective subject to the occurrence, not later than 31 January 2015, of the following conditions precedent:

 

  6.1.1 the competent court will have confirmed the Debt Restructuring Agreement pursuant to article 182-bis of the IBL (omologazione dell’accordo di ristrutturazione dei debiti);

 

12

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

  6.1.2 the board of directors of PM will have confirmed in writing to Manitex that the decision of the court confirming the Debt Restructuring Agreement pursuant to article 182bis of the IBL has not been timely challenged under article 182bis, paragraph 5, of the IBL or, alternatively, that any challenge have been rejected by the competent court;

 

  6.1.3 PM’s Extraordinary Shareholders’ Meeting will have approved the Capital Increases in accordance with the terms and conditions set out in Recital B;

 

  6.1.4 the O&S Extraordinary Shareholders’ Meeting will have approved the O&S Capital Increase in accordance with the terms and conditions set out in Recital C;

 

  6.1.5 the shareholders meeting of PM and O&S will have approved the respective financial statements as at 31 December 2013 with the same contents of the draft financial statements attached hereto as Annexes (C) and (D);

 

  6.1.6 PM will have approved the audited consolidated financial statements of PM as at 31 December 2013 and the auditing company of PM will have released a clean opinion thereon except for possible qualifications in respect of PM’s going concern;

 

  6.1.7 the auditing company of PM will have released a clean opinion on the consolidated financial statements of PM (excluding Pilosio and its subsidiaries), including (i) the statements of income, comprehensive income, cash flows and changes in equity for the three years ended respectively on 31 December 2011, 31 December 2012 and 31 December 2013 and (ii) the balance sheets for the two years ended on 31 December 2012 and 31 December 2013 (the “PM Group carve-out year-end consolidated financial statements”) except for possible qualifications in respect of PM’s going concern;

 

  6.1.8 the Shareholders Capital Increase (offered in preemption to the current shareholders of PM) shall not have been subscribed in full within the deadline set by the resolution of the PM’s Extraordinary Shareholders Meeting;

 

13

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

  6.1.9 the directors of PM and O&S currently in office will have handed in their resignations to take effect as of the date of execution of the Manitex Capital Increase;

 

  6.1.10 the board of directors of PM and the board of directors of O&S will have convened the respective ordinary shareholders meeting on the date scheduled for the execution of the Manitex Capital increases for the purpose of electing new directors and statutory auditors (if any) in lieu of those leaving the office;

 

  6.1.11 no order, injunction, judgment or decree issued by any governmental or judicial authority or other legal restraint or prohibition preventing the subscription for the Manitex Capital Increase will be in effect;

 

  6.1.12 none of the following events, changes or circumstances shall have occurred prior to the Effective Date:

a. a disruption in the financial, banking, lending, debt or capital markets or in securities settlement or clearance services in the United States preventing Manitex from subscribing and/or completing the Manitex Capital Increase;

b. suspension or material limitation in trading in securities in general preventing Manitex from subscribing and/or completing the Manitex Capital Increase;

c. a Material Adverse Effect (Effetto Pregiudizievole Significativo) as defined in the Debt Restructuring Agreement, unless cured by the Effective Date;

 

  6.1.13 Manitex and UC will have entered into an assignment agreement for the transfer from UC to Manitex of debts for an amount of Euro 10,000,000.00 (ten million/00), against the payment of Euro 1,500,000.00 (one million five hundred thousand/00);

 

14

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

  6.1.14 Manitex and BPER will have entered into (i) an assignment agreement, corresponding to this Agreement, for the transfer from BPER to Manitex of debts towards PM for an amount of Euro 8,750,000.00 (eight million seven hundred fifty thousand/00) against the issuance of 430,000 Manitex shares to BPER; and (ii) an assignment agreement for the transfer from BPER to Manitex of debts towards PM for an amount of Euro 5,000,000.00 (five million/00), against the payment of Euro 1,500,000.00 (one million five hundred thousand/00).

 

6.2 Manitex and UC may at any time jointly (and not severally) waive in whole or in part and conditionally or unconditionally the conditions set out in article 6.1 by written notice to the other parties.

 

6.3 If any of the conditions precedent under article 6.1 has not occurred or been waived on or prior to 31 January 2015, this Agreement shall be definitively without effect.

 

6.4 Without prejudice to the provisions under Clause 5.3, Manitex will become the owner of the UC Debts when, on the Effective Date, the issuance of the Manitex Shares will be completed pursuant to Clause 4.

 

7. CONDITIONS SUBSEQUENT

 

7.1 This Agreement shall terminate automatically and with retroactive effects pursuant to Article 1353 of the Italian Civil Code in the event that the Manitex Capital Increase has not been fully underwritten and paid in by Manitex by and no later than five days from the Effective Date.

 

8. PM ACCEPTANCE

 

8.1 Manitex, pursuant to Articles 1264 and 1265 of the Italian Civil Code, shall notify the assignment with legal date of the UC Debts provided for in this Agreement to PM or shall procure that PM accepts with legal date the assignment of the UC Debts provided for in this Agreement.

 

15

Manitex International Inc.

9725 Industrial Drive

Bridgeview, IL 60455 ((USA)

 

9. TAXES, COSTS AND EXPENSES

 

9.1 Manitex shall bear all the taxes, costs and expenses incurred in connection with the entering into, execution, or amendment of this Agreement other then advisory fees that shall be borne by each party.

 

10. GOVERNING LAW AND JURISDICTION

 

10.1 This agreement is governed by and shall be construed in accordance with the laws of Italy, without prejudice to any mandatory provision under US law applicable to the issuance of the Manitex Shares.

 

10.2 The Courts of Milan shall have exclusive jurisdiction in respect of any dispute arising out of this agreement.

 

11. ATTACHMENTS

Annex (A)         draft declaration of the US Lawyer;

Annex (B)         draft declaration of Manitex’s secretary

Annex (C)         draft financial statements of PM

Annex (D)         draft financial statements of O&S

- - - o 0 o - - -

We execute this letter in sign of acceptance of the debt assignment agreement against shares copied above.

Best regards

/s/ Andrew M. Rooke                                                             

Manitex International Inc.

Andrew Rooke

[President and COO]

 

 

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Messrs.

Manitex International Inc.

9725 Industrial Drive,

Bridgeview, Illinois, USA

Modena (Italy), 21 July 2014

Re: UC Debts Assignment from UC to Manitex and Share Issuance by Manitex to UC

Dear Sirs,

We refer to our previous conversations and we hereby propose you the following:

TRANSFER AGREEMENT OF UC DEBTS AGAINST MANITEX SHARES

BETWEEN

Unicredit S.p.A., with registered office in Rome, Via Alessandro Specchi 16, registered with the Register of Enterprises of Rome, Taxpayer’s Code and VAT No. 00348170101, duly represented by Giuseppe Izzo duly empowered (“UC”);

AND

Manitex International Inc., a company established under the laws of Illinois (USA), with registered office in 9725 Industrial Drive, Bridgeview, Illinois (USA), duly represented by Andrew Rooke, president and chief operating officer authorized by the board of directors with resolution on 10 July 2014 (“Manitex”);

WHEREAS

 

(A) Pursuant to a loan agreement entered into on 30 January 2009 between, inter alios, UC and PM Group S.p.A. (“PM”), UC has granted and advanced to PM a loan for a maximum amount of Euro 76.500.000,00, secured by a mortgage and three pledges over shares of PM, Pilosio S.p.A. and Oil & Steel S.p.A. (as subsequently amended, even by the Debt Restructuring Agreement (as defined below)) (the “Loan Agreement”).

 

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(B) On 10 June 2014 the board of directors of PM resolved to call in the extraordinary shareholders meeting of PM on 30 June 2014 in first call and 30 July 2014 in second call (hereinafter the “PM’s Extraordinary Shareholders’ Meeting”) to resolve on the following actions (hereinafter collectively the “Capital Increases”):

 

  (i) a capital increase in PM for Euro 10,000,000.00 (ten million/00), with a share premium equal to Euro 7,927,316.00 (seven million nine hundred twenty seven thousand three hundred sixteen/00) and a non-repayable contribution equal to Euro 26,572,684.00 (twenty six million five hundred seventy two thousand six hundred eighty four/00) to cover losses,—conditional upon full subscription thereof (inscindibile)—to be subscribed for by the current shareholders and paid-in in cash and/or by way of set-off of due claims of the shareholders against PM (hereinafter the “Shareholders Capital Increase”); or, alternatively

 

  (ii) a capital increase in PM for Euro 10,000,000.00 (ten million/00), with a share premium equal to Euro 7,927,316.00 (seven million nine hundred twenty seven thousand three hundred sixteen/00) and a non-repayable contribution equal to 26,572,648.00 (twenty six million five hundred seventy two thousand six hundred eighty four/00) to cover losses—conditional upon full subscription thereof (inscindibile)—to be subscribed for by Manitex and paid–in in cash and/or by way of set-off of due claims of Manitex against PM (hereinafter the “Manitex Capital Increase”).

 

(C) On 10 June 2014 the board of directors of O&S (as defined below) resolved to call in the extraordinary shareholders meeting of O&S (as defined below) (hereinafter the “O&S Extraordinary Shareholders’ Meeting”) to resolve on a capital increase, divided into two tranches, one for Euro 1,000,000.00 (one million/00) with share premium of 2,500,996.00 (Two million five hundred thousand nine hundred ninety six/00) – conditional upon full subscription thereof (inscindibile) - and the second one, that can be subscribed also partially, for Euro 600,000.00 (six hundred thousand/00) in any case with a non-repayable contribution equal to 6,197,686.00 (Six million one hundred ninety seven thousand six hundred eighty six/00) to cover losses, to be paid-in in cash or by way of set-off of due claims of PM against O&S (hereinafter the “O&S Capital Increase”).

 

2

(D) On the date hereof, PM entered into with its banks a debt restructuring agreement (Accordo di Ristrutturazione) pursuant to Article 182-bis of the Italian Bankruptcy Law (as defined below) (the “Debt Restructuring Agreement”). The Debt Restructuring Agreement provides, inter alia, that UC will assign without recourse to Manitex overdue debts under the Loan Agreement equal to Euro 8,750,000.00 (eight million seven hundred fifty thousand/00) arising from the Loan Agreement (the “UC Debts”) against the issuance by Manitex to UC of the Manitex Shares (as defined below).

 

(E) On the date hereof, Manitex entered into an investment agreement with the majority shareholder of PM (the “Investment Agreement”) in respect of the subscription by Manitex for the Manitex Capital Increase.

 

(F) On the date hereof, PM entered into with Polo Holdings S.à r.l. (“Polo Holdings”, a company 100% held by Columna Holdings Limited) a share purchase agreement (the “Pilosio Transfer Agreement”) in connection with the transfer of 100% of the equity interest in Pilosio (as defined below) and Polo Holdings paid Euro 1,000,000.00 (one million) into an escrow account.

 

(G) UC and Manitex intend hereby: (i) for UC to assign the UC Debts to Manitex; and (ii) for Manitex to issue the Manitex Shares (as defined below) to UC, in each case, on the terms and conditions set out in this Agreement.

Now, therefore, it’s agreed as follows:

 

1. DEFINITIONS and CONSTRUCTION

Recitals: The recitals of this Agreement are an integral and essential part thereof, with the value and force of covenants between the Parties.

Headings: The headings of the clauses and sub-clauses of this Agreement are for ease of reference only and shall not affect the interpretation of this Agreement.

 

3

Recitals and Clauses: Any reference in this Agreement to a “Recital” or a “Clause” shall be a reference to a recital or a clause of this Agreement, unless the contrary is indicated.

Laws, Regulations, Contracts and Documents: Any reference in this Agreement to a law, a regulation, a contract or a document shall be a reference to such law, regulation, contract or document as amended from time to time (and including after the date of this Agreement), unless the contrary is expressly indicated or anyway required by the context.

Definitions: In this Agreement, the following capitalised terms shall have the following meanings:

“Affiliate” means—with respect to any person an individual - corporation, partnership, firm, association, unincorporated organization or other entity directly or indirectly controlling, controlled by or under common control with such person.

“Agreement” means this debt assignment and share transfer agreement.

“Capital Increases” has the meaning ascribed thereto in Recital B.

“Civil Code” means the Italian civil code, as approved by the Royal Decree dated 16 March 1942, No. 262, as subsequently amended.

“Debt Restructuring Agreement” has the meaning ascribed thereto in Recital D.

“Effective Date” means the date on which all the conditions precedent set forth in Clause 6 have occurred or have been waived pursuant to Clause 6.2.

“Encumbrance” means any lien, pledge, charge, encumbrance or other security interest (or an agreement or commitment to create any of them), legal proceeding (such as seizure), easement, license, claim, other rights in-rem, including option rights, pre-emption rights, rights of first refusal or veto rights, restriction on title, rights under forward or preliminary sales, transfer or exercise of any other attribute of ownership or other restriction or limitation of any kind whatsoever.

 

4

“Investment Agreement” has the meaning ascribed thereto in Recital E.

“Italian Bankruptcy Law” or “IBR” means the Italian bankruptcy law set out by Regio Decreto 16 marzo 1942, n. 267 as subsequently amended.

“Manitex Capital Increase” has the meaning ascribed thereto in Recital B.

“Manitex Shares” means (i) n. 430,000 ordinary shares of common stock of Manitex, representing, at the date hereof, about 3% of Manitex outstanding share capital or (ii) in the event that a Reorganization occurs between the Signing Date and the Effective Date, the shares of Manitex (or any successor thereof) that are, equivalent to the stock exchange value of the Manitex Shares on the Signing Date.

“O&S” means Oil&Steel s.p.a. with registered office at 22 Via Verdi, San Ceario sul Panaro (MO), a company 100% owned by PM.

“O&S Capital Increase” has the meaning ascribed thereto in Recital C.

“O&S Extraordinary Shareholders’ Meeting” has the meaning ascribed thereto in Recital C.

“Pilosio” means Pilosio S.p.A. with registered office at Via Fermi 45, Tavagnacco (UD).

“Pilosio Transfer Agreement” has the meaning ascribed thereto in Recital F.

“PM’s Extraordinary Shareholders’ Meeting” has the meaning ascribed thereto in Recital B.

“Reorganization” means any non-ordinary course change, modification, replacement or transformation (including, without limitation, by effect of a merger, a de-merger, a transformation, a spin-off, a capital decrease (voluntary or compulsory), winding up or a capital increase of Manitex, a cancellation, splitting, regrouping, or replacement of the Manitex Shares with new shares or quotas) of (i) the Manitex Shares; (ii) of rights relating to the Manitex Shares; and/or (iii) of Manitex. The changes, modifications, replacements or transformations under points (i), (ii) and (iii) above may be cumulative and/or repetitive and/or associated.

 

5

“Shareholders Capital Increase” has the meaning ascribed thereto in Recital B.

“Signing Date” means the date on which this Agreement has been subscribed by all the Parties.

“UC Debts” has the meaning ascribed thereto in Recital D.

 

2. ASSIGNMENT

 

2.1 Subject to the conditions precedent set out in Clause 6 below and to the completion of the issuance and delivery of the Manitex Shares by Manitex to UC pursuant to Clause 4, UC hereby assigns to Manitex, which purchases, with effect as of the Effective Date, the UC Debts.

 

2.2 Manitex undertakes to communicate to PM, Polo Holdings S.à.r.l. and to the Agent (as defined in the Debt Restructuring Agreement) that the assignment of the UC Debts has been perfected within the day following to the day on which such assignment has been actually perfected.

 

2.3 The UC Debts are assigned as unsecured monetary claims and, for the sake of clarity, all the relevant guaranties (mortgage and pledges) shall not be transferred to Manitex.

 

2.4 The transfer of the UC Debts is made pro soluto (without recourse), it being understood that UC does not give any representation and warranty on the solvency or the performance by PM or of its guarantors for any title of its payment obligations.

 

2.5 Manitex shall have the right to designate a person to become a party to this Agreement provided that such designation is made in compliance with the following provisions:

(a) such designation will be made in writing and sent together with the written acceptance of the person so designated by the Effective Date;

 

6

(b) such person will be an Affiliate of Manitex incorporated in Europe or the United Kingdom;

(c) Manitex will be jointly liable with the designated person without any condition of prior enforcement against the designated person (senza beneficio dell’escussione del terzo) for the correct execution of the transactions contemplated in this Agreement and such joint liability will be confirmed in the notice under paragraph (a) above.

 

3. REPRESENTATIONS AND WARRANTIES OF UC

 

3.1 UC hereby makes the following representations and warranties to Manitex, each of which shall be true and correct also on the Effective Date:

 

  3.1.1 UC is a bank duly incorporated, validly existing and in good standing under the laws of Italy;

 

  3.1.2 all corporate acts and other proceedings required to be taken by or on behalf of UC to authorize UC to enter into and to carry out this Agreement have been duly and properly taken, and this Agreement has been duly executed and delivered by UC and constitutes the valid and binding obligation of UC enforceable against UC in accordance with its terms;

 

  3.1.3 no application to, or filing with, or consent, authorization or approval of, or license, permit, registration, declaration or exemption by, any governmental or public body or authority is required of UC under Italian law in connection with the execution and performance of this Agreement;

 

  3.1.4 the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not conflict with, or result in the breach of, or constitute a default under, the articles of incorporation or the by-laws of UC or the Loan Agreement;

 

7

  3.1.5 UC is the exclusive owner of the UC Debts that are clear and free from any Encumbrance and UC has the full right, power and authority to sell, assign, transfer and deliver the UC Debts in accordance with the terms of this Agreement, also due to the consent, given by the Company and by BPER pursuant to the Debt Restructuring Agreement, to the assignment hereof;

 

  3.1.6 on the Effective Date, the UC Debts will be freely transferable under the Loan Agreement, also due to the consent, given by the Company and by BPER pursuant to the Debt Restructuring Agreement and to the assignment hereof;

 

  3.1.7 the UC Debts are valid and existing pursuant to article 1266 of the Civil Code and, pursuant to Paragraph 5.1.2 of the Debt Restructuring Agreement will be due and payable on the Effective Date, including without limitation the UC Debts which are not yet due and payable on the date hereof;

 

  3.1.8 the principal amount of the UC Debts on the date hereof is and will be on the Effective Date equal to Euro 8,750,000.00 (eight million seven hundred fifty thousand/00);

 

  3.1.9 the Loan Agreement is valid and enforceable and neither the UC Debts nor the Loan Agreement are subject to any objection, action or claim of whatever nature by PM and/or any dispute, legal proceedings, arbitration or legal action pending, imminent or threatened by PM or any third party;

 

  3.1.10 UC has correctly, completely and diligently kept and shall correctly, completely and diligently keep until the Effective Date the books, records, data and documents regarding the UC Debts in compliance with all requirements of applicable Italian laws and regulations;

 

  3.1.11 the transactions described in this Agreement, including UC’s payment for, and UC’s continued beneficial ownership of, the Manitex Shares will not violate any applicable Italian laws;

 

  3.1.12 UC has not 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 Manitex or any of its Affiliates;

 

8

  3.1.13 UC acknowledges that its participation in the transactions contemplated by this Agreement, including the issuance of the Manitex Shares by Manitex to UC in accordance with the terms hereof, may involve tax consequences and that Manitex has not provided to UC any tax advice or information related thereto. UC acknowledges that it must retain its own professional advisors to evaluate the tax and other consequences of an investment in the Manitex Shares.

 

3.2 UC shall indemnify and hold Manitex harmless in respect of all losses or damages incurred or suffered by Manitex as a result of any representations and warranties not being true and correct and/or the breach by UC of any covenants and/or obligations contained in this Agreement.

 

4. MANITEX SHARES ISSUANCE

 

4.1 Subject to the terms and conditions hereof, on the Effective Date, Manitex shall (i) issue Manitex Shares to UC and shall duly and validly deliver to UC the relevant share certificates in a manner legally sufficient to transfer to UC full title to the Manitex Shares, free and clear of any Encumbrances; and (ii) execute and deliver, or cause to be executed and delivered, such transfer or other instruments or documents as may be necessary, under applicable law, to transfer to UC full title to the Manitex Shares, free and clear of any Encumbrances and to otherwise properly effect the purposes of this Agreement; (iii) deliver a declaration from a US lawyer with a translation in Italian attached thereto in the form as per Annex (A); (iv) deliver the declaration of the secretary of Manitex confirming the occurrence of the correct issuance and registration of the Manitex Shares to UC in the form as per Annex (B).

 

5. REPRESENTATIONS AND WARRANTIES AND OTHER UNDERTAKINGS REGARDING THE MANITEX SHARES

 

5.1 Manitex hereby makes the following representations and warranties to UC, each of which shall be true and correct also on the Effective Date:

 

9

  5.1.1 Manitex is a corporation duly incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation;

 

  5.1.2 all corporate acts and other proceedings required to be taken by or on behalf of Manitex to authorize Manitex to enter into and to carry out this Agreement have been duly and properly taken, and this Agreement has been duly executed and delivered by Manitex and constitutes the valid and binding obligation of Manitex enforceable against Manitex in accordance with its terms;

 

  5.1.3 no application to, or filing with, or consent, authorization or approval of, or license, permit, registration, declaration or exemption by, any governmental or public body or authority is required of Manitex in connection with the execution and performance of this Agreement;

 

  5.1.4 the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not conflict with, or result in the breach of, or constitute a default under, the articles of incorporation or the by-laws of Manitex;

 

  5.1.5 Manitex has not 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 UC or any of its Affiliates;

 

  5.1.6 the Manitex Shares to be issued pursuant to the terms of this Agreement, when issued transferred and delivered in accordance with the terms of this Agreement for the consideration set forth herein, will be duly and validly issued, fully paid and non-assessable, and shall be issued free and clear of any Encumbrances;

 

  5.1.7 as of the Signing Date, there are 13,822,169 outstanding Manitex Shares and Manitex is not aware, to be best of its knowledge, of any other issuance of its shares and\or of any Reorganization to occur prior to the Effective Date;

 

10

  5.1.8 Manitex represents, and UC acknowledges, that the issuance of the Manitex Shares pursuant to the terms of this Agreement has not been reviewed by the United States Securities and Exchange Commission (the “SEC”) because it is intended to be a non-public offering, exempted from the registration requirements of the Securities Act of 1933, as amended (the “1933 Act”);

 

  5.1.9 Manitex represents, and UC acknowledges, that any physical certificates representing the Manitex Shares, until such time as such Manitex Shares have been registered under the 1933 Act, shall bear a customary restrictive legend for privately issued, unregistered shares of Manitex common stock which states that the shares may not be sold unless they have been registered with the SEC or an exemption from such registration is available;

 

  5.1.10 Manitex further represents that after UC has held the Manitex Shares for a period of six months, UC ought to be able to sell the Manitex Shares without restriction pursuant to Rule 144 under the 1933 Act, which provides that a holder of restricted securities issued by a SEC reporting company may sell such restricted securities without restriction after holding them for six months, provided that the holder is not an affiliate of the SEC reporting company and the SEC reporting company is current in its SEC filing requirements;

 

  5.1.11 Manitex acknowledges that its participation in the transactions contemplated by this Agreement, including the issuance of the Manitex Shares by Manitex to UC in accordance with the terms hereof, may involve tax consequences and that UC has not provided to Manitex any tax advice or information related thereto. Manitex acknowledges that it must retain its own professional advisors to evaluate the tax and other consequences of the issuance of the Manitex Shares;

 

  5.1.12 Manitex has respected the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and has satisfied the “current public information” requirement set forth in Rule 144(c)(1).

 

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5.2 Manitex shall indemnify and hold UC harmless in respect of all losses or damages incurred or suffered by UC as a result of any representations and warranties not being true and correct and/or the breach by Manitex of any covenants and/or obligations contained in this Agreement.

 

5.3 Manitex (i) shall use the UC Debts to pay-in by way of set-off, for an equal amount, the Manitex Capital Increase; and (ii) shall not claim for the payment of the UC Debts and/or accept payments and/or enforce them any way other than as provided in paragraph (i).

 

5.4 Manitex undertakes, until the date of the sale of the Manitex Shares by UC (included) (i) to respect the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended; and (ii) to satisfy the “current public information” requirement set forth in Rule 144(c)(1).

 

6. CONDITIONS PRECEDENT

 

6.1 The assignment shall become effective subject to the occurrence, not later than 31 January 2015, of the following conditions precedent:

 

  6.1.1 the competent court will have confirmed the Debt Restructuring Agreement pursuant to article 182-bis of the IBL (omologazione dell’accordo di ristrutturazione dei debiti);

 

  6.1.2 the board of directors of PM will have confirmed in writing to Manitex that the decision of the court confirming the Debt Restructuring Agreement pursuant to article 182bis of the IBL has not been timely challenged under article 182bis, paragraph 5, of the IBL or, alternatively, that any challenge have been rejected by the competent court;

 

  6.1.3 PM’s Extraordinary Shareholders’ Meeting will have approved the Capital Increases in accordance with the terms and conditions set out in Recital B;

 

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  6.1.4 the O&S Extraordinary Shareholders’ Meeting will have approved the O&S Capital Increase in accordance with the terms and conditions set out in Recital C;

 

  6.1.5 the shareholders meeting of PM and O&S will have approved the respective financial statements as at 31 December 2013 with the same contents of the draft financial statements attached hereto as Annexes (C) and (D);

 

  6.1.6 PM will have approved the audited consolidated financial statements of PM as at 31 December 2013 and the auditing company of PM will have released a clean opinion thereon except for possible qualifications in respect of PM’s going concern;

 

  6.1.7 the auditing company of PM will have released a clean opinion on the consolidated financial statements of PM (excluding Pilosio and its subsidiaries), including (i) the statements of income, comprehensive income, cash flows and changes in equity for the three years ended respectively on 31 December 2011, 31 December 2012 and 31 December 2013 and (ii) the balance sheets for the two years ended on 31 December 2012 and 31 December 2013 (the “PM Group carve-out year-end consolidated financial statements”) except for possible qualifications in respect of PM’s going concern;

 

  6.1.8 the Shareholders Capital Increase (offered in preemption to the current shareholders of PM) shall not have been subscribed in full within the deadline set by the resolution of the PM’s Extraordinary Shareholders Meeting;

 

  6.1.9 the directors of PM and O&S currently in office will have handed in their resignations to take effect as of the date of execution of the Manitex Capital Increase;

 

  6.1.10 the board of directors of PM and the board of directors of O&S will have convened the respective ordinary shareholders meeting on the date scheduled for the execution of the Manitex Capital increases for the purpose of electing new directors and statutory auditors (if any) in lieu of those leaving the office;

 

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  6.1.11 no order, injunction, judgment or decree issued by any governmental or judicial authority or other legal restraint or prohibition preventing the subscription for the Manitex Capital Increase will be in effect;

 

  6.1.12 none of the following events, changes or circumstances shall have occurred prior to the Effective Date:

a. a disruption in the financial, banking, lending, debt or capital markets or in securities settlement or clearance services in the United States preventing Manitex from subscribing and/or completing the Manitex Capital Increase;

b. suspension or material limitation in trading in securities in general preventing Manitex from subscribing and/or completing the Manitex Capital Increase;

c. a Material Adverse Effect (Effetto Pregiudizievole Significativo) as defined in the Debt Restructuring Agreement, unless cured by the Effective Date;

 

  6.1.13 Manitex and UC will have entered into an assignment agreement for the transfer from UC to Manitex of debts for an amount of Euro 10,000,000.00 (ten million/00), against the payment of Euro 1,500,000.00 (one million five hundred thousand/00);

 

  6.1.14 Manitex and BPER will have entered into (i) an assignment agreement, corresponding to this Agreement, for the transfer from BPER to Manitex of debts towards PM for an amount of Euro 8,750,000.00 (eight million seven hundred fifty thousand/00) against the issuance of 430,000 Manitex shares to BPER; and (ii) an assignment agreement for the transfer from BPER to Manitex of debts towards PM for an amount of Euro 5,000,000.00 (five million/00), against the payment of Euro 1,500,000.00 (one million five hundred thousand/00).

 

6.2 Manitex and UC may at any time jointly (and not severally) waive in whole or in part and conditionally or unconditionally the conditions set out in article 6.1 by written notice to the other parties.

 

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6.3 If any of the conditions precedent under article 6.1 has not occurred or been waived on or prior to 31 January 2015, this Agreement shall be definitively without effect.

 

6.4 Without prejudice to the provisions under Clause 5.3, Manitex will become the owner of the UC Debts when, on the Effective Date, the issuance of the Manitex Shares will be completed pursuant to Clause 4.

 

7. CONDITIONS SUBSEQUENT

 

7.1 This Agreement shall terminate automatically and with retroactive effects pursuant to Article 1353 of the Italian Civil Code in the event that the Manitex Capital Increase has not been fully underwritten and paid in by Manitex by and no later than five days from the Effective Date.

 

8. PM ACCEPTANCE

 

8.1 Manitex, pursuant to Articles 1264 and 1265 of the Italian Civil Code, shall notify the assignment with legal date of the UC Debts provided for in this Agreement to PM or shall procure that PM accepts with legal date the assignment of the UC Debts provided for in this Agreement.

 

9. TAXES, COSTS AND EXPENSES

 

9.1 Manitex shall bear all the taxes, costs and expenses incurred in connection with the entering into, execution, or amendment of this Agreement other then advisory fees that shall be borne by each party.

 

10. GOVERNING LAW AND JURISDICTION

 

10.1 This agreement is governed by and shall be construed in accordance with the laws of Italy, without prejudice to any mandatory provision under US law applicable to the issuance of the Manitex Shares.

 

10.2 The Courts of Milan shall have exclusive jurisdiction in respect of any dispute arising out of this agreement.

 

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11. ATTACHMENTS

 

Annex (A)         draft declaration of the US Lawyer;

Annex (B)         draft declaration of Manitex’s secretary

Annex (C)         draft financial statements of PM

Annex (D)         draft financial statements of O&S

# # #

If you agree with this proposal, please return to us this letter duly signed by way of acceptance thereof.

 

Kind regards,

/s/ Giuseppe Izzo

Unicredit S.p.A.

 

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EX-10.4

EXHIBIT 10.4

Messrs.

Manitex International Inc.

9725 Industrial Drive

Bridgeview, Illinois

21 July 2014

RE: put & call agreement on certain debts owed by PM Group S.p.A. to BPER

Dear Sirs,

we refer to our previous conversations to transcribe here below the content of your proposal as our full acceptance of the same.

“Messrs

Banca Popolare dell’Emilia Romagna

Via San Carlo 8/20

Modena

Bridgeview, 21 July 2014

RE: put & call agreement on certain debts owed by PM Group S.p.A. to BPER

Dear Sirs,

we refer to our previous conversations and propose hereby the following agreement:

OPTION AGREEMENT

BY AND BETWEEN

 

  1. Manitex International Inc., a company duly organized and validly existing under the laws of the State of Illinois (U.S.A.), with registered office at 9725 Industrial Drive, Bridgeview, Illinois, represented herein by Andrew Rooke, Chief Financial Officer of the company, authorized pursuant to resolution of 10 July 2014, (“Manitex”)

 

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AND

 

  1. Banca Popolare dell’Emilia Romagna, a company duly organized and validly existing under the laws of Italy, with registered office in Modena, enrolled under No. 01153230360 with the register of banks held by the Bank of Italy in accordance with article 13 of Legislative Decree no. 385 of 1 September 1993 (the “Consolidated Banking Act”) and enrolled with the register held by the Bank of Italy pursuant to article 64 of the Consolidated Banking Act, represented herein by Emilio Cremonesi, (“BPER”)

WHEREAS

A. PM Group S.p.A. is a company duly incorporated and validly organised under the laws of Italy, with registered office at 22 Via Verdi, San Cesario sul Panaro (MO), Italy, number of registration at the Register of Companies of Modena 334223, with a share capital of Euro 23,311,420.00, fully paid-in and divided into no. 101,312,500 ordinary shares, with no par value (“PM” or the “Company”).

B. PM owns 100% of the shares of Oil & Steel S.p.A, a company duly incorporated and validly organised under the laws of Italy, with registered office at 22 Via Verdi, San Cesario sul Panaro (MO), Italy, number of registration at the Register of Companies of Modena 02313650364 with a share capital of Euro 362,400.00 fully paid-in and divided in no. 362,400 ordinary shares, each having a par value of Euro 1.00 (“O&S”).

C. Pursuant to a loan agreement entered into on 24 February, 2009, between, inter alios, BPER and PM, BPER granted and advanced to PM a loan for a maximum amount of Euro 76,500,000.00, secured by a mortgage and three pledges over shares of PM, O&S and a further subsidiary of PM (the “Loan Agreement”).

 

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D. On the date hereof (the “Signing Date”) PM executed a debt restructuring agreement pursuant to article 182-bis of the IBL (as defined below) with its banks, including BPER (the “Banks Restructuring Agreement”). The Banks Restructuring Agreement provides, inter alia, that a portion of the debts owed by PM to BPER under the Loan Agreement equal on the Signing Date to a principal amount of Euro 5,000,000.00 will be rescheduled to 2017 and subject to the provisions of the Banks Restructuring Agreement (the “BPER Subordinated Debt”). Although not a signatory to the Banks Restructuring Agreement, Manitex acknowledges its content without exception.

E. On the date hereof, Manitex entered into an investment agreement with the majority shareholder of the Company (the “Investment Agreement”) in respect of the subscription by Manitex for a capital increase of the Company at the terms and conditions set forth in the Investment Agreement.

F. An extraordinary shareholders meeting of the Company has been called-in on 30 June 2014 in first call and on 30 July 2014 in second call to resolve on the following actions:

 

(i) a PM capital increase for Euro 10,000,000.00 (ten million/00) and a share premium of Euro 7,927,316.00 (seven million nine hundred twenty seven thousand three hundred sixteen/00) – conditional upon full subscription thereof (inscindibile) and a contribution of Euro 26,572,684.00 (twenty six million five hundred seventy two thousand six hundred eighty four/00) to cover losses, paid-in also by way of set-off of due claims, with right of option of the shareholders;

and in the event of failure of the current shareholders to subscribe in full for the capital increase above

 

(ii) a PM capital increase for Euro 10,000,000.00 (ten million/00)—conditional upon full subscription thereof (inscindibile), and a share premium of Euro 7,927,316.00 (seven million nine hundred twenty seven thousand three hundred sixteen/00) – conditional upon full subscription thereof (inscindibile) and a contribution of Euro 26,572,684.00 (twenty six million five hundred seventy two thousand six hundred eighty four/00) to cover losses, paid-in also by way of set-off of due claims, subject to the subscription by Manitex (the “Manitex Capital Increase”).

 

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G. The Parties wish hereby to grant Manitex the right to purchase from BPER and BPER the right to sell to Manitex the BPER Subordinated Debt at the terms and conditions set forth in this agreement (the “Put and Call Agreement”).

NOW, THEREFORE, in consideration of the recitals mentioned above (which constitute an integral part of this Put and Call Agreement), the Parties agree as follows.

1. DEFINITIONS - INTERPRETATION

 

1.1. Definitions. Without prejudice to any other term and/or expression defined elsewhere in this Put and Call Agreement, the following terms and expressions shall have the following meaning:

“Auditor” means a company licensed to perform accounting auditing and certifications.

“Banks Restructuring Agreement” has the meaning set forth in paragraph D. of the Whereas clause.

“BPER” means Banca Popolare dell’Emilia Romagna s.c.a.r.l.

“BPER Subordinated Debt” means a portion with a principal amount, at the Signing Date, of Euro 5,000,000.00 (five million) of the debts owed by the Company to BPER under the Loan Agreement and restructured under the Banks Restructuring Agreement, or that lower principal amount that may result from the waive or writing off (if any) made by BPER to cover losses incurred by the Company.

“Business Day” means any day in which the banks are normally open for business in Milan (Italy) and in Illinois (U.S.A.).

“Call Option” shall have the meaning set out in paragraph b) of Article 2.1.

 

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“Call Term” shall have the meaning set out at Article 2.4.

“Civil Code” means the Italian civil code, as approved by the Royal Decree dated 16 March 1942, No. 262, as subsequently amended.

“Closing” means the simultaneous actions set out in Article 2.6 to be carried out by the Parties on the Closing Date for the purposes of transferring the BPER Subordinated Debt from BPER to Manitex at the terms set out in this Put and Call Agreement.

“Closing Date” means the 10th (tenth) Business Day following the date on which a Notice of Exercise has been received by one of the Parties or, in the case under Paragraph 2.3, the date of delivery of the IA Determination.

“Company” shall have the meaning set out at Whereas clause A.

“Control” means the ownership of an equity interest representing more than 50% of the outstanding share capital of a corporate entity and the ability to direct the affairs of such corporate entity by reason of having the power to elect or appoint, either directly or indirectly, a majority of the governing body of such corporate entity.

“EBITDA” means, with reference to the PM consolidated financial statement (including O&S and the subsidiaries that om the Signing Date are indicated in Schedule 6.16 of the Banks Restructuring Agreement), the EBITDA as defined in the Banks Restructuring Agreement with the sole exception of the calculation of the capitalizations which, for the purposes of this definition, shall not include costs for research and development. “EBITDA 2017” means the EBITDA relating to the financial year as at 31 December 2017.

“Effective Date” means the date on which all conditions precedent under Article 5 have occurred or have been waived.

 

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“Encumbrance” means any mortgage, lien, pledge, charge, encumbrance, other security interest (or an agreement or commitment to create any of them), legal proceeding (such as seizure), easement, license, option, claim, other rights in-rem, including option rights, pre-emption rights, rights of first refusal or veto rights, rights under forward or preliminary sales, transfer or exercise of any other attribute of ownership.

“Governmental Authority” means any government, state or political subdivision thereof, national or supranational body, court, tribunal or any person or body exercising executive, legislative, judicial, regulatory or administrative functions on behalf of any of them and includes all relevant securities commissions, stock exchange authorities, foreign exchange authorities, foreign investment authorities and similar entities or authorities.

“IBL” means the Italian bankruptcy law set out in the Royal Decree n. 267 of 16 March 1942 as subsequently amended.

“Independent Auditor” means the auditing firm (Italian branch) that will be agreed upon by Manitex and BPER to provide the services called for under paragraph 2.3 (the Parties hereby undertaking to accept all standard terms and conditions for mandates of this kind proposed by the selected auditing firm, including any standard indemnity and hold harmless clauses), or, should Manitex and BPER fail to agree on its appointment and/or the terms and conditions thereof within twenty (20) Business Days from the invitation of one Party to the other to reach agreement, and/or should the Independent Auditor be unable or unwilling to perform the services called for under paragraph 2.3, the independent auditing firm (Italian branch) that will thereupon be designated, by the President of the Court of Modena at the request of either Party after allowing sufficient time for the hearing of the other; for the purpose of this clause, “independent” means an auditing firm that has not received any mandate from any of the Parties in the three (3) years preceding its appointment.

 

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“Investment Agreement” has the meaning ascribed to it in paragraph E of the Whereas clause.

“Law” means any constitution, law, legislation, treaty, statute, ordinance, code, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any Governmental Authority having competent jurisdiction.

“Loan Agreement” has the meaning ascribed to in paragraph C of the Whereas clause.

“Manitex Capital Increase” has the meaning set out in paragraph F. of the Whereas clause.

“Notice of Exercise” means a notice notifying the addressee of the exercise of the Put Option or the Call Option, as the case may be, and specifying the place where the Closing shall take place which in all cases shall be in the city of Milan.

“Options” means collectively the Call Option and the Put Option.

“O&S” shall have the meaning set out in Whereas clause B.

“Party” or “Parties” means BPER and Manitex or both of them, as the context may require.

“Plan” means the industrial and financial plan pursuant to the Restructuring Agreement.

“PM” shall have the meaning set out at Whereas clause A.

 

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“PM Auditor” means the company from time to time entrusted by PM with the legal auditing.

“Purchase Price” shall mean the price of the BPER Subordinated Debt set out in Articles 2.1 and 2.2 due by Manitex to BPER upon exercise of either one of the Options.

“Put and Call Agreement” means this agreement including its recitals and schedules, as it may be amended in writing from time to time.

“Put Option” shall have the meaning set out in paragraph a) of Article 2.1.

“Put Term” shall have the meaning set out at Article 2.4.

“Reorganization”: any extraordinary operation changing the reference perimeter for the Company’s consolidated financial statement and that may have a negative impact on the EBITDA.

“Signing Date” means the date of signing of this Put and Call Agreement.

“Subsidiary” means any corporate entity directly or indirectly controlled by PM.

 

1.2. Interpretation. In this Put and Call Agreement, unless the context otherwise requires:

 

  a) words denoting the singular shall include the plural and vice versa, words denoting any gender shall include all genders and words denoting any person shall include bodies corporate, unincorporated, associations, partnerships and individuals;

 

  b) references to a recital, an Article, a paragraph of or a Schedule to, are to a recital of, an Article of, a paragraph of, or a Schedule to, this Put and Call Agreement, and references to this Put and Call Agreement include its recitals and its Schedules;

 

8

  c) the headings of an Article or a Schedule of this Put and Call Agreement are indicated for clarification purposes only and, consequently, they do not form an integral part of this Put and Call Agreement and may not be used for purposes of interpretation;

 

  d) the word “including” or any variation thereof means “including, without limitation” and shall not be construed to limit any general statement to any specific or similar items or matters immediately following it;

 

  e) the words “procure” and “cause” include the obligation to deliver the performance of a third party pursuant to article 1381 of the Civil Code;

 

  f) the words “herein”, “hereof” and “hereunder” and similar words shall be construed to refer to this Put and Call Agreement (including the Schedules thereto) in its entirety and not to any part thereof, unless the context otherwise requires;

 

  g) the division of this Put and Call Agreement into Articles and/or paragraphs and other subdivisions and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Put and Call Agreement;

 

  h) where in this Put and Call Agreement an Italian term is given in italics or in italics and in brackets after an English term and there is any inconsistency between the Italian and the English terms, the meaning of the Italian term shall prevail;

 

  i) any reference in this Put and Call Agreement to a “day” or number of “days” (without the explicit qualification of Business Day(s)) shall be interpreted as a reference to a calendar day or number of calendar days. Unless otherwise expressly indicated, any period of time expressed in days or months shall be calculated under article 2963 (Computo dei termini di prescrizione) of the Civil Code.

 

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1.3. No Adverse Construction against drafter. The language throughout this Put and Call Agreement shall in all cases be construed as a whole according to its fair meaning and without implying any presumption that the terms hereof shall be more strictly construed against one Party as opposed to another by reason of the rule that a document is to be construed more strictly against the Party who has prepared the same, it being acknowledged that representatives of all Parties have participated in drafting and negotiating this Put and Call Agreement.

 

2. OPTIONS

 

2.1. Put and Call Options. Upon the terms and subject to the conditions of this Put and Call Agreement and pursuant to section 1331 of the Civil Code:

 

  a) By the Put Term, BPER will have the right to sell to Manitex, which will have the irrevocable obligation to purchase, the BPER Subordinated Debt (whatever its outstanding amount may be) at the terms set out in this Put and Call Agreement (the “Put Option”):

 

  (1) at a Purchase Price of Euro 5,000,000.00 (five million) (i) if EBITDA 2017 is higher than Euro 16,500,000 (sixteen million five hundred thousand) or (ii) if PM carries out any Reorganization in the period from the Signing Date until the Closing Date without BPER’s prior written consent;

 

  (2) at a Purchase Price equal to Euro 2,500,000.00 (two million five hundred thousand) if EBITDA 2017 is equal to an amount falling between Euro 14,500,000.00 (fourteen million five hundred thousand) (included) and Euro 16,500,000.00 (sixteen million five hundred thousand) (included).

 

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  b) By the Call Term, Manitex will have the right to purchase from BPER, which irrevocably commits to selling, the BPER Subordinated Debt (whatever its outstanding amount may be) at the terms set out in this Put and Call Agreement (the “Call Option”) if EBITDA 2017 is equal to an amount falling between Euro 14,500,000.00 (fourteen million five hundred thousand) (included) and Euro 16,500,000.00 (sixteen million five hundred thousand) (included) at a Purchase Price equal to Euro 2,500,000.00 (two million five hundred thousand);

 

2.2. Undertaking to purchase the BPER Subordinated Debt. If EBITDA 2017 is lower than € 14,500,000.00 (fourteen million five hundred thousand), Manitex shall purchase from BPER and BPER shall sell to Manitex the BPER Subordinated Debt for a consideration of € 1,00 (one) by the Call Term.

 

2.3. Calculation of the EBITDA 2017. In view of the exercise of the Options set forth at Paragraph 2.1 and the compliance with the undertaking set forth in paragraph 2.2 above, Manitex will cause the Company to deliver to both Manitex and BPER a copy of the consolidated financial statements of the Company as at 31 December 2017 within thirty (30) days from approval thereof by the Company’s shareholders’ meeting in compliance with applicable law, together with a separate document, undersigned by PM’s Auditor, showing the good faith calculation of EBITDA 2017 (the “Date of Delivery of the EBITDA 2017 Calculation”). BPER may disagree with the calculation of the EBITDA 2017 received by Manitex by sending to Manitex a written notice in this respect within thirty (30) Business Days following receipt of the Manitex calculation. In this case, the EBITDA 2017 shall be calculated by the Independent Auditor, it being agreed that:

 

  2.3.1. the Independent Auditor shall (i) apply this Put and Call Agreement and resolve any issues and matters necessary or expedient for the performance of its mandate; and (ii) deliver to Manitex and BPER a written determination of the EBITDA 2017 (the “IA Determination”) within thirty (30) Business Days of the date of its appointment;

 

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  2.3.2. Manitex shall procure, also committing on behalf of the Company pursuant to Article 1381 of the Civil Code, that the Independent Auditor is given access to all books, records, financial statements, business plans and other documents, of the Company and its subsidiaries, and information as are requested by it for the purpose of making its determination; and

 

  2.3.3. all costs and expenses related to the determination of the EBITDA 2017 by the Independent Auditor shall be borne by Manitex.

 

2.4. Exercise of the Options. BPER may exercise the Put Option starting from the latest between (i) the Delivery Date of the Calculation of the EBITDA 2017 and (ii) the IA Determination Date and until the 80th (eightieth) Business Day following the applicable date between the two mentioned above (the “Put Term”).The Call Option may be exercised by Manitex by the 80th (eightieth) Business Day following the deadline of the Put Term (the “Call Term”). Both Options must be exercised by sending to the relevant Party a Notice of Exercise, which once delivered shall be irrevocable.

 

2.5. Transfer of Title. The transfer of title of the BPER Subordinated Debt from BPER to Manitex will take place as a result of the exercise of one of the Options, without need for further formalities, conditional on the payment of the Purchase Price.

 

2.6. Terms of transfer. On the Closing Date, the BPER Subordinated Debt will be transferred without recourse (pro-soluto) as unsecured monetary claim, thus with no guarantee on the solvency of the Company.

 

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2.7. Closing. On the Closing Date:

(A) Manitex shall:

 

  (i) pay the Purchase Price to BPER;

 

  (ii) execute and cause the Company to execute all the documentation that BPER may deem reasonably necessary or adequate to provide evidence to the transfer of the BPER Subordinated Debt under applicable Law; and

 

  (iii) cause the Company to undersign a statement as acceptance of the transfer of the BPER Subordinated Debt to Manitex;

(B) BPER shall undersign and deliver to Manitex all the documents that Manitex may deem reasonably necessary or adequate to provide evidence to the transfer of the BPER Subordinated Debt under applicable Law:

 

2.8. One Transaction. All actions and transactions constituting the Closing pursuant to Paragraph 2.8 shall be regarded as one single transaction, so that, at the option of the Party having interest in the performance of any relevant specific action or transaction, no action or transaction constituting the Closing shall be deemed to have taken place if and until all other actions and transactions constituting the Closing shall have been properly performed in accordance with the provisions of this Put and Call Agreement, save the liability of the defaulting party.

 

2.9. Consideration for the Options. The Parties hereby acknowledge that (i) a satisfactory consideration for the Call Option is represented by the Put Option and vice versa and that (ii) no other consideration shall be due by either Party to the other in respect of the Options granted hereunder.

 

3. REPRESENTATIONS AND WARRANTIES OF BPER

 

3.1 BPER hereby makes the following representations and warranties to Manitex, each of which shall be true and correct also on the Effective Date and the Closing Date:

 

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  3.1.1 BPER is a bank duly incorporated, validly existing and in good standing under the laws of Italy;

 

  3.1.2 all corporate actions and other proceedings required to be taken by or on behalf of BPER to authorize BPER to enter into and to carry out this Put and Call Agreement have been duly and properly taken, and this Put and Call Agreement has been duly executed and delivered by BPER and constitutes the valid and binding obligation of BPER enforceable against BPER in accordance with its terms;

 

  3.1.3 no application to, or filing with, or consent, authorization or approval of, or license, permit, registration, declaration or exemption by, any governmental or public body or authority is required of BPER under Italian Law in connection with the execution and performance of this Put and Call Agreement;

 

  3.1.4 the execution and delivery of this Put and Call Agreement by BPER and the consummation of the transactions contemplated hereby will not conflict with, or result in the breach of, or constitute a default under, the articles of incorporation or the by-laws of BPER;

 

  3.1.5 BPER is the exclusive owner of the BPER Subordinated Debt that is clear and free from any Encumbrance and BPER has the full right, power and authority to sell, assign, transfer and deliver the BPER Subordinated Debt in accordance with the terms of this Put and Call Agreement and the Banks Restructuring Agreement, also by virtue of the express consent given by the Company and Unicredit pursuant to the Banks Restructuring Agreement to the transfer of the BPER Subordinated Debt as per this Agreement;

 

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  3.1.6 on the Closing Date, the BPER Subordinated Debt will be unconditionally and freely transferable under the Loan Agreement and the Banks Restructuring Agreement, also by virtue of the express consent given by the Company and Unicredit pursuant to the Banks Restructuring Agreement to the transfer of the BPER Subordinated Debt as per this Agreement;

 

  3.1.7 the BPER Subordinated Debt is valid and existing pursuant to article 1266 of the Civil Code;

 

  3.1.8 the principal amount of the BPER Subordinated Debt on the date hereof is Euro 5,000,000.00 (five million), and the same will be on the Closing Date, without prejudice to what has been set forth pursuant to the Banks Restructuring Agreement in the event of PM losses;

 

  3.1.9 the Loan Agreement is valid and enforceable under Italian Law;

 

  3.1.10 BPER has correctly, completely and diligently kept and shall correctly, completely and diligently keep until the Closing Date the books, records, data and documents regarding the BPER Subordinated Debt in compliance with all requirements of applicable Italian Laws;

 

3.2 BPER shall indemnify and hold Manitex harmless in respect of all losses or damages incurred or suffered by Manitex as a result of any representations and warranties not being true and correct and/or the breach by BPER of any covenants and/or obligations contained in this Put and Call Agreement.

 

4. REPRESENTATIONS AND WARRANTIES OF MANITEX

 

4.1 Manitex hereby makes the following representations and warranties to BPER, each of which shall be true and correct also on the Effective Date and the Closing Date:

 

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  4.1.1 Manitex is a corporation duly incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation;

 

  4.1.2 all corporate actions and other proceedings required to be taken by or on behalf of Manitex to authorize Manitex to enter into and to carry out this Put and Call Agreement have been duly and properly taken, and this Put and Call Agreement has been duly executed and delivered by Manitex and constitutes the valid and binding obligation of Manitex enforceable against Manitex in accordance with its terms;

 

  4.1.3 no application to, or filing with, or consent, authorization or approval of, or license, permit, registration, declaration or exemption by, any Governmental Authority is required of Manitex in connection with the execution and performance of this Put and Call Agreement;

 

  4.1.4 the execution and delivery of this Put and Call Agreement and the consummation of the transactions contemplated hereby will not conflict with, or result in the breach of, or constitute a default under, the articles of incorporation or the by-laws of Manitex;

 

  4.1.5 Manitex has not 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 BPER.

 

  4.1.6. As stated in the Whereas clause D, Manitex has thorough knowledge of the Debt Restructuring Agreement and the documentation attached and in the performance of the BPER Subordinated Debt regulation, and thus executes this Agreement with the full knowledge of the substantive regulation and the legal regime applicable to the BPER Subordinated Debt pursuant to the Debt Restructuring Agreement without exception.

 

16

4.2 Manitex shall use the BPER Subordinated Debt, once the transfer is completed, so to issue, for a corresponding amount and within thirty (30) Business Days from the Closing Date, a capital increase of the Company.

 

4.3 Manitex shall indemnify and hold BPER harmless in respect of all losses or damages incurred or suffered by BPER as a result of any representations and warranties not being true and correct and/or the breach by Manitex of any covenants and/or obligations contained in this Put and Call Agreement.

 

5. CONDITIONS PRECEDENT

 

5.1 This Put and Call Agreement shall become effective subject to (i) the Banks Restructuring Agreement becoming effective and (ii) the Execution of the Manitex Capital Increase, as defined in the Banks Restructuring Agreement, by Manitex no later than 31 January, 2015.

 

5.2 Without prejudice to paragraph 9.2, this Put and Call Agreement shall cease to have effect subject to the occurrence of any of the following conditions subsequent:

 

  5.2.1 the consummation of the transactions contemplated hereunder being restrained, enjoined or otherwise prohibited or made illegal by any applicable Law applicable to either BPER or Manitex, it being understood that, in the event one of the clauses or this Agreement were void or invalid, the Parties shall do whatever is in their power to agree on clauses with substantially the same effect; and

 

  5.2.2 any of the Parties being subject to any enforceable order, injunction, judgment or decree issued by any Governmental Authority or other legal restraint or prohibition preventing the consummation of transactions hereunder, it being understood that, in the event one of the clauses or this Agreement were void or invalid, the Parties shall do whatever is in their power to agree on clauses with substantially the same effect.

 

17

5.3 Manitex and BPER may at any time in whole or in part and conditionally or unconditionally waive the conditions set out in articles 5.1 and 5.2 by sending a written notice to the other Party.

 

5.4 If the conditions precedent under article 5.1 has not occurred prior to 31 January 2015, this Put and Call Agreement shall be definitively without effect.

 

6. ACKNOWLEDGMENT

It is acknowledged and agreed by the Parties that:

 

(a) this agreement is qualified from the beginning by the risk and uncertainties relating to the benefits and/or losses of the parties and it is therefore to be considered a “aleatory contract” (“contratto aleatorio”);

 

(b) articles 1467 ss. of the Italian civil code do not apply to this agreement;

 

(c) Manitex shall from time to time at its own cost on being reasonably required to do so by BPER, perform or procure the performance of all such acts and/or execute or procure the execution of all such documents in a form satisfactory to such other party to give full effect to this Agreement and to secure such other party the full benefit of the rights, powers and remedies conferred upon such party by or pursuant to this Agreement.

 

7. REORGANIZATION

 

7.1 Without prejudice to paragraph 2.1(a)(1)(ii), should a Reorganization occur:

 

(a) all debts, instruments and other securities which shall have become owned by BPER or any right to which BPER shall have become entitled as a result of a Reorganization and which derive (whether directly or indirectly) from the BPER Subordinated Debt shall be deemed to be subject to the Options and undertakings set forth in this Put and Call Agreement; and

 

18

(b) any reference in this Put and Call Agreement to the BPER Subordinated Debt shall be construed to give full effect to paragraph 7.1(a).

 

8. TAXES, COSTS AND EXPENSES

 

8.1 Manitex shall bear all the taxes, costs and expenses incurred in connection with this Put and Call Agreement.

 

9. MISCELLANEOUS

 

9.1 Assignment prohibited. 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 other Party.

 

9.2 Partial invalidity. The invalidity or unenforceability of any provision of this Put and Call Agreement shall not affect the remaining provisions thereof, which shall continue to be valid, effective and enforceable in accordance with their terms. Without prejudice to the other provisions of Article 1419 of the Civil Code, the Parties shall negotiate in good faith the substitution of such invalid or unenforceable provision with another provision that has substantially the same effect in terms of the purposes of the Agreement.

 

10. GOVERNING LAW AND JURISDICTION

 

10.1 This Put and Call Agreement is governed by and shall be construed in accordance with the laws of Italy.

 

10.2 The Courts of Milan shall have exclusive jurisdiction in respect of any dispute arising out of this Put and Call Agreement.

# # #

 

19

If you agree with this proposal, please return to us this letter duly signed by way of acceptance thereof.

Kind regards,

/s/ Andrew M. Rooke                                                                 

Manitex International Inc.

Kind regards,

/s/ Emilio Cremonesi                                                                 

Banca Popolare dell’Emilia Romagna s.c.

 

20

EX-10.5

Exhibit 10.5

Manitex International, Inc.

9725 Industrial Drive

Bridgeview, Illinois 60455

PM Group S.p.A.

Via Verdi 22

San Cesario sul Panaro

Modena

Bridgeview 21 July 2014

Dear Sirs,

RE: commitment to subscribe for a capital increase of PM Group S.p.A. (the “Proposal”)

we set forth hereunder the terms of our commitment to subscribe for a capital increase of PM Group S.p.A.

Whereas

A. PM Group S.p.a. is a company duly incorporated and validly organised under the laws of Italy, with registered office at 22 Via Verdi, San Cesario sul Panaro (MO), Italy, number of registration at the Register of Companies of Modena 334223, with a share capital of Euro 23,311,420.00, fully paid-in and divided into no. 101,312,500 ordinary shares, with no nominal value (“PM”).

B. PM owns 100% of the shares of the following companies:

(i) Oil&Steel s.p.a, a company duly incorporated and validly organised under the laws of Italy, with registered office at 22 Via Verdi, San Cesario sul Panaro (MO), Italy, number of registration at the Register of Companies of Modena 02313650364 with a share capital of Euro 362,400.00 fully paid-in and divided in no. 362,400 ordinary shares, each having a par value of Euro 1.00 (“O&S”);

 

1

(ii) Pilosio s.p.a., a company duly incorporated and validly organised under the laws of Italy, with registered office at Via Fermi 45, Tavagnacco (UD), Italy, number of registration at the Register of Companies of Udine 251502 with a share capital of Euro 5,000,000.00 fully paid-in and divided into no. 5,000,000 ordinary shares, each having a par value of Euro 1.00 (“Pilosio”).

C. On the date hereof (the “Signing Date”) the following actions are planned to take place:

 

(a) PM and O&S will execute the debt restructuring agreement (the “Banks Restructuring Agreement”) substantially in the form attached hereto as Annex 1 with Banca Popolare dell’Emilia Romagna s.c.a.r.l. (“BPER”), Unicredit S.p.A. (“Unicredit” and collectively with BPER the “Senior Banks”), Banca Nazionale del Lavoro s.p.a., Unipol Banca s.p.a., Banca Monte dei Paschi di Siena and Cassa di Risparmio in Bologna (collectively, the “Banks”);

 

(b) Manitex International Inc. (“Manitex”) and the Senior Banks will execute the transfer agreements substantially in the form attached hereto as Annexes 2 and 3 in respect of certain bank debts owed by PM to the Senior Banks (the “PM Bank Debt Transfer Agreements”);

 

(c) Manitex and BPER will execute the put and call agreement substantially in the form attached hereto as Annex 4 in respect of certain debts owed by PM to BPER (the “Put and Call Agreement”);

 

(d) Manitex and IPEF III Holdings n° 11 S.A., a subsidiary of Columna Holdings Limited, will execute an investment agreement substantially in the form attached hereto as Annex 5 (the “Investment Agreement”);

 

(e) PM and Polo Holdings SARL (“Polo”), a company designated by Columna Holdings Limited, will execute the share purchase agreement substantially in the form attached hereto as Annex 6 with respect to 100% of the shares of PM in Pilosio (the “Pilosio Transfer Agreement”) and Polo will concurrently pay the relevant Euro 1,000,000.00 purchase price into an escrow account;

 

2

(f) PM and the Senior Banks will execute the transfer agreements substantially in the form attached hereto as Annex 7 in respect to certain debts owed by O&S to the Senior Banks (the “O&S Bank Debt Transfer Agreements”);

 

(g) PM, O&S and the Senior Banks will execute the agreement for the assumption by PM of the senior debt of O&S substantially in the form attached hereto as Annex 8 (the “Debt Assumption Agreement”).

D. As soon as possible after the Signing Date PM and O&S will file a petition with the bankruptcy court of Modena (the “Court”) and all relevant documents pursuant to article 182bis of the Italian bankruptcy law set out in the Royal Decree n. 267 of 16 March 1942 as subsequently amended (the “IBL”) requesting the Court to homologate the Banks Restructuring Agreement.

E. On 10 June 2014 the board of directors of PM has approved the draft financial statements as at 31 December 2013 attached hereto as Annex 9 and resolved – among others - to call in an extraordinary shareholders meeting of PM in first call on 30 June 2014 and in second call on 30 July 2014 (the “PM’s Extraordinary Shareholders’ Meeting”) to resolve on the following actions (collectively the “Capital Increases”):

 

(i) a capital increase for Euro 10,000,000.00 plus a share premium of Euro 7,927,316.00 and an equity contribution of Euro 26,572,684 to cover losses – conditional upon full subscription thereof (inscindibile) and final homologation of the Bank Restructuring Agreement by the Court - to be subscribed for by the current shareholders (the “Shareholders”) and paid-in in cash or by way of set-off of due claims of the Shareholders against PM (the “Shareholders Capital Increase”);

and in the event of failure of the Shareholders to subscribe in full for the Shareholders Capital Increase

 

(ii) a capital increase for Euro 10,000,000.00 plus a share premium of Euro 7,927,316.00 and an equity contribution of Euro 26,572,684 to cover losses - conditional upon full subscription thereof (inscindibile) and final homologation of the Bank Restructuring Agreement by the Court – with issuance of corresponding new ordinary shares of PM (the “New Shares”), to be subscribed for by Manitex and/or an EU based entity controlled by Manitex and paid-in in cash or by way of set-off of any due claims against PM (the “Manitex Capital Increase”).

 

3

F. On 10 June 2014 the board of directors of O&S has approved the draft financial statements as at 31 December 2013 attached hereto as Annex 10 and resolved - among others - to call in the extraordinary shareholders meeting of O&S on 30 June 2014 in first call and on 30 July 2014 in second call (the “O&S Extraordinary Shareholders’ Meeting”) to resolve on a capital increase divided in two tranches, the first one for Euro 9,698.682.00 –conditional upon both the final homologation of the Bank Restructuring Agreement by the Court, subscription in full of the Shareholders Capital Increase or the Manitex Capital Increase, as the case may be and full subscription thereof (inscindibile) - and the second one for Euro 600,000.00 – conditional upon both the final homologation of the Bank Restructuring Agreement by the Court, subscription in full of the Shareholders Capital Increase or the Manitex Capital Increase – with issuance of corresponding new ordinary shares of O&S to be subscribed for by PM and paid–in in cash or by way of set-off of due claims of PM against O&S (the “O&S Capital Increase”).

NOW, THEREFORE, in consideration of the recitals mentioned above and subject to the conditions below, Manitex hereby commits to the terms hereunder.

 

1) Within the timeframe set out in the resolution of PM’s Extraordinary Shareholders’ Meeting with respect to the Manitex Capital Increase, Manitex or the Designated Person (as defined in paragraph 2 below) will subscribe for the Manitex Capital Increase and concurrently pay in the relevant capital contribution as to Euro 12,000,000 (twelve million) in cash and as to the remaining Euro 32,500,000 (thirty two million five hundred thousand) by off-setting the relevant debt against the bank debts purchased under the PM Bank Debt Transfer Agreements.

 

2) Manitex will have the right to designate a third party (the “Designated Person”) to subscribe and pay for the Manitex Capital Increase, provided that such designation is made in compliance with the following provisions:

 

  (i) the Designated Person is a person which directly or indirectly, controls, is controlled by, or is under common control with, Manitex and which is incorporated in Europe or the United Kingdom;

 

  (ii) Manitex will be jointly and severally liable with the Designated Person for the correct execution of the Manitex Capital Increase.

 

3) The obligations of Manitex to consummate the transactions contemplated in article 1 shall be subject to the satisfaction of the following conditions precedent by the day agreed with PM falling between the 1st and the 5th day after the Banks Restructuring Agreement has become effective (the “Closing Date”) or the different date set out in the single paragraphs hereunder:

 

4

  (a) all documents to be executed and actions to be taken on the Signing Date as per paragraph C of the Recitals will have been timely and correctly executed and taken by all relevant parties;

 

  (b) the Court will have homologated the Bank Restructuring Agreement pursuant to article 182bis of the IBL (omologazione dell’accordo di ristrutturazione dei debiti);

 

  (c) the board of directors of PM will have confirmed in writing to Manitex that the decision of the Court confirming the Banks Restructuring Agreement pursuant to article 182bis of the IBL has not been timely challenged under article 182bis, paragraph 5, of the IBL or, alternatively, that any challenges have been rejected by the competent Court;

 

  (d) PM’s Extraordinary Shareholders’ Meeting will have approved the Capital Increases in accordance with the terms and conditions set out in Recital E;

 

  (e) the O&S Extraordinary Shareholders’ Meeting will have approved the O&S Capital Increase pursuant to the terms and conditions set out in Recital F;

 

  (f) the shareholders meeting of PM and O&S will have approved the respective financial statements as at 31 December 2013 with the same contents of the draft financial statements attached hereto as Annexes 9 and 10;

 

  (g) PM will have approved the audited consolidated financial statements of PM as at 31 December 2013 and the auditing company of PM will have released a clean opinion thereon except for possible qualifications in respect of PM’s going concern;

 

  (h) the Shareholders Capital Increase shall not have been subscribed in full within the deadline set by the resolution of the PM’s Extraordinary Shareholders Meeting;

 

  (i) the auditing company of PM will have released a clean opinion on the consolidated financial statements of PM (excluding Pilosio and its subsidiaries), including (i) the statements of income, comprehensive income, cash flows and changes in equity for the three years ended respectively on 31 December 2011, 31 December 2012 and 31 December 2013 and (ii) the balance sheets for the two years ended on 31 December 2012 and 31 December 2013 (the “PM Group carve-out year-end consolidated financial statements”) except for possible qualifications in respect of PM’s going concern;

 

5

  (j) the directors of PM and O&S will have handed in their resignations by virtue of a letter executed in the form attached hereto as Annex 11;

 

  (k) the board of directors of PM and the board of directors of O&S will have convened the respective ordinary shareholders meeting on the date scheduled for the execution of the Manitex Capital Increase for the purpose of electing new directors and statutory auditors (if any) in lieu of those leaving office;

 

  (l) prior or at the latest on the date of subscription by Manitex for the Manitex Capital Increase and subject to payment by Manitex of the consideration due pursuant to the PM Bank Debt Transfer Agreements, PM will have cashed or cash, as the case may be, the purchase price for 100% of the shares in Pilosio set out in the Pilosio Transfer Agreement;

 

  (m) no order, injunction, judgment or decree issued by any governmental or judicial authority or other legal restraint or prohibition preventing the subscription for the Manitex Capital Increase will be in effect;

 

  (n) none of the following events, changes or circumstances shall have occurred prior to the Closing Date:

 

  (i) a disruption in the financial, banking, lending, debt or capital markets or in securities settlement or clearance services in the United States preventing Manitex from subscribing and/or completing the Manitex Capital Increase;

 

  (ii) suspension or material limitation in trading in securities in general preventing Manitex from subscribing and/or completing the Manitex Capital Increase;

 

  (iii) a Material Adverse Effect (Effetto Pregiudizievole Significativo) as defined in the Banks Restructuring Agreement, unless cured by the Closing Date;

 

  (o) prior or at the latest on the date of subscription by Manitex for the Manitex Capital Increase and subject to payment by Manitex of the consideration due pursuant to the PM Bank Debt Transfer Agreements, the Pilosio Transfer Agreement shall have become effective (i.e. the Pilosio’s shares shall have been transferred to Polo Holdings thereunder);

 

6

  (p) prior or at the latest on the date of subscription by Manitex for the Manitex Capital Increase and subject to payment by Manitex of the consideration due pursuant to the PM Bank Debt Transfer Agreements, the PM Bank Debt Transfer Agreements and the O&S Bank Debt Transfer Agreements shall have become effective.

 

4) Manitex may at any time and its sole discretion waive in whole or in part, conditionally or unconditionally, the conditions set out in article 3 above by notice in writing to PM.

 

5) The obligations of Manitex to consummate the transactions contemplated in article 1 shall become void and of no effect without any liability of Manitex if any of the conditions precedent set out in article 3 above is not satisfied by the Closing Date or waived by 31 January 2015.

 

6) Upon satisfaction and/or waiver of the conditions precedent set out in article 3 above and execution of the Manitex Capital Increase, Manitex commits to: (i) resolve in the PM shareholders meeting under (j) above – in its capacity as new sole shareholder of PM - to waive any liability action against the resigning directors and statutory auditors (if any) for possible past negligent actions or omissions of such directors and statutory auditors (if any) originated under their office (such resolution to be taken substantially in the form attached hereto as Annex 12) and (ii) deliver to the resigning directors and statutory auditors (if any) a letter to the same effect substantially in the form attached hereto as Annex 13.

 

7) Following the execution of the Manitex Capital Increase, Manitex commits to manage PM and O&S in all material respect in accordance with the guidelines set out in the restructuring plan attached hereto as Annex 14.

 

8) Manitex shall bear all the taxes, costs and expenses incurred in connection with the Manitex Capital Increase.

 

9) This Proposal is governed by and shall be construed in accordance with the laws of Italy.

 

10) The Courts of Milan shall have exclusive jurisdiction in respect of any dispute arising out of this Proposal.

*****

 

7

This Proposal shall remain valid and irrevocable until 31 January 2015.

Annexes:

 

1. Banks Restructuring Agreement

 

2. Bank Debt Transfer Agreement against shares

 

3. Bank Debt Transfer Agreement against cash

 

4. Put and Call Agreement

 

5. Investment Agreement

 

6. Pilosio Transfer Agreement

 

7. O&S Bank Debt Transfer Agreement

 

8. Debt Assumption Agreement

 

9. PM draft financial statements as at 31 December 2013

 

10. O&S draft financial statements as at 31 December 2013

 

11. Resignation letter

 

12. Resolution of the PM shareholders meeting in respect of waiver of actions

 

13. Letter to directors/statutory auditors in respect of waiver of actions

 

Yours sincerely,
/s/ Andrew M. Rooke
Manitex International Inc.

For acceptance:

/s/ Giuliano Asperti, President
PM Group S.p.A.

 

8

EX-99.1

Exhibit 99.1

Manitex International Agrees to Acquire PM-Group, S.p.A., of Modena,

Italy with Over $100 Million in Global Annual Revenues

Knuckle Boom Cranes Highlight New Product Line Additions

Transaction Expected to Close in Fourth Quarter 2014

Management Will Host Conference Call Today at 11:00 AM ET

Bridgeview, IL, July 21, 2014 — Manitex International, Inc. (Nasdaq: MNTX), a leading international provider of cranes and specialized material and container handling equipment, today announced that it has reached an agreement to acquire PM Group S.p.A. “PM” based in San Cesario sul Panaro, Modena, Italy. The agreement is subject to pending Italian court approval of a debt restructuring plan.

Consideration of $107 million in aggregate is to be paid as follows:

 

  •   $24 million in cash provided by a new Manitex term loan with current Manitex bankers;

 

  •   $15 million in new equity issuance (approximately 1 million MNTX shares) distributed primarily to current PM banks;

 

  •   $68 million in assumed debt and liabilities which includes working capital facilities for PM

Trailing Twelve Months (TTM) Revenues for PM through June 2014 was approximately $106 million with EBITDA margins consistent with those of Manitex, approximately 9% of sales. The acquisition is expected to close in the fourth quarter of 2014, upon Italian Court approval and management expects this to be immediately accretive to Manitex International’s net earnings in 2014.

PM-Group S.p.A., is a leading Italian manufacturer of truck mounted hydraulic knuckle boom cranes with a 50-year history of technology and innovation, and a product range spanning more than 50 models. Its largest subsidiary, Oil & Steel, “O&S”, is a manufacturer of truck-mounted aerial platforms with a diverse product line and an international client base. Combined, O&S and PM add nearly 510,000 square feet of assembly and manufacturing space, spread between its two locations in San Cesario S/P, Modena, and in Arad, Romania, and sell to a broad dealer network, worldwide.

David Langevin, Chairman and Chief Executive Officer of Manitex, commented, “In PM-Group we have again found an exceptional opportunity to add new branded product lines, enhance our earnings power, and create value for our shareholders. PM is a substantial company that has performed very well despite a depressed European economy and a very heavy debt load incurred from its 2008 LBO refinancing. With the restructuring of its debt, which includes a reduction of more than $65 million, and evidence of the beginnings of a European recovery, we believe that this is a very attractive acquisition for us from a financial standpoint. This acquisition also expands our product portfolio nicely, enabling us to offer our dealers both straight-mast and knuckle boom cranes, each with unique benefits, functionality, and niche market applications.”

Mr. Langevin continued, “The combination of Manitex International and PM-Group results in a company with annual pro forma revenues in excess of $350 million and EBITDA margins that are consistent with our historical EBITDA margins. PM has excellent management, global distribution with particular strength in South America, Europe and Africa and a product portfolio that we can introduce to Manitex’s strong North America distribution network which we believe will allow for further growth in sales and EBITDA in 2015 and beyond.”

Conference Call Today:

Manitex International’s management team will conduct a conference call open to the public today at 11:00 AM ET to discuss the transaction in further detail and conduct a question and answer (Q&A) session. To participate in the teleconference call, please dial 1-800-839-7875 (domestic) at least five minutes before the start time, or by dialing 1-913-312-4373 for international callers. The call will be broadcast over the internet with an accompanying slide presentation in the Investor Relations section of Manitex International’s website, www.manitexinternational.com.

About Manitex International, Inc.

Manitex International, Inc. designs, manufactures and markets a portfolio of highly engineered and customizable lifting, material and container handling equipment, spanning boom truck, telescopic, rough terrain and industrial cranes, reach stackers and associated container handling equipment, rough terrain forklifts, mobile liquid and solid containment solutions, and specialized trailers and mission oriented vehicles, including parts support. We have accumulated nearly a dozen brands since going public in 2006 and operate internationally through eight subsidiaries with design and manufacturing facilities in the USA, Canada and Italy.

Manitex Inc, in Georgetown, TX, manufactures a comprehensive line of boom truck and telescopic cranes and sign cranes, primarily used in industrial projects, energy exploration and infrastructure development, including roads, bridges, and commercial construction. Badger Equipment Company, in Winona, MN, manufactures specialized rough terrain and industrial cranes and primarily serves the needs of the construction, municipality, and railroad industries. Our Italian subsidiary, CVS Ferrari, srl, designs and manufactures a range of reach stackers and associated lifting equipment for the global container handling market. Our Manitex Liftking subsidiary is a provider of material handling equipment including the Noble straight-mast rough terrain forklift product line, Lowry high capacity cushion tired forklift as well as specialized carriers, heavy material handling transporters and steel mill equipment. Manitex Liftking’s rough terrain forklifts are used in commercial applications and by the world’s largest military and peace keeping organizations. Our subsidiary, Manitex Load King located in Elk Point, South Dakota is a manufacturer of specialized engineered trailers and hauling systems, typically used for transporting heavy equipment. Manitex Sabre based in Knox, Indiana, builds mobile specialized tanks for liquid storage and containment solutions for a variety of end markets such as petrochemical, waste management and oil and gas drilling. Manitex Valla located in Piacenza, Italy, manufactures a full range of mobile precision pick and carry cranes from 2 to 90 tons, using electric, diesel, and hybrid power options with configurable special applications designed specifically to meet the needs of its customers.

Our Crane and Machinery division is a Chicago based distributor of cranes including Terex truck and rough terrain cranes, PM knuckle boom cranes and our own Manitex International brands. Crane and Machinery provides aftermarket service in its local market as well as being a leading distributor of OEM crane parts, supplying parts to customers throughout the United States and internationally. The division also provides a wide range of used and refurbished lifting and construction equipment of various ages and conditions as well as operating a rental fleet of equipment to the Tri-state area.

Forward-Looking Statement

Safe Harbor Statement under the U.S. Private Securities Litigation Reform Act of 1995: This release contains statements that are forward-looking in nature which express the beliefs and expectations of management including statements regarding the Company’s expected results of operations or liquidity; statements concerning projections, predictions, expectations, estimates or forecasts as to our business, financial and operational results and future economic performance; and statements of management’s goals and objectives and other similar expressions concerning matters that are not historical facts. In some cases, you can identify forward-looking statements by terminology such as “anticipate,” “estimate,” “plan,” “project,” “continuing,” “ongoing,” “expect,” “we believe,” “we intend,” “may,” “will,” “should,” “could,” and similar expressions. Such statements are based on current plans, estimates and expectations and involve a number of known and unknown risks, uncertainties and other factors that

could cause the Company’s future results, performance or achievements to differ significantly from the results, performance or achievements expressed or implied by such forward-looking statements. These factors and additional information are discussed in the Company’s filings with the Securities and Exchange Commission and statements in this release should be evaluated in light of these important factors. Although we believe that these statements are based upon reasonable assumptions, we cannot guarantee future results. Forward-looking statements speak only as of the date on which they are made, and the Company undertakes no obligation to update publicly or revise any forward-looking statement, whether as a result of new information, future developments or otherwise.

 

Company Contact   
Manitex International, Inc.    Hayden IR
David Langevin    Peter Seltzberg
Chairman and Chief Executive Officer    Investor Relations
(708) 237-2060    646-415-8972
djlangevin@manitexinternational.com    peter@haydenir.com
EX-99.2
Manitex International, Inc.
(NASDAQ: MNTX)
--July 21, 2014—
Acquisition of
PM -Group SpA
Exhibit
99.2

2
Forward Looking Statements & Non-GAAP Measures
Safe Harbor Statement under the U.S. Private Securities Litigation Reform Act of 1995: This presentation contains
statements that are forward-looking in nature which express the beliefs and expectations of management including
statements regarding the Company’s expected results of operations or liquidity; statements concerning projections,
predictions, expectations, estimates or forecasts as to our business, financial and operational results and future economic
performance; and statements of management’s goals and objectives and other similar expressions concerning matters
that are not historical facts.  In some cases, you can identify forward-looking statements by terminology such as
“anticipate,”
“estimate,”
“plan,”
“project,”
“continuing,”
“ongoing,”
“expect,”
“we believe,”
“we intend,”
“may,”
“will,”
“should,”
“could,”
and similar expressions. Such statements are based on current plans, estimates and expectations and
involve a number of known and unknown risks, uncertainties and other factors that could cause the Company's future
results, performance or achievements to differ significantly from the results, performance or achievements expressed or
implied
by
such
forward-looking
statements.
These
factors
and
additional
information
are
discussed
in
the
Company's
filings with the Securities and Exchange Commission and statements in this presentation should be evaluated in light of
these important factors. Although we believe that these statements are based upon reasonable assumptions, we cannot
guarantee future results. Forward-looking statements speak only as of the date on which they are made, and the
Company undertakes no obligation to update publicly or revise any forward-looking statement, whether as a result of
new information, future developments or otherwise.
Non-GAAP
Measures:
Manitex
International
from
time
to
time
refers
to
various
non-GAAP
(generally
accepted
accounting
principles) financial measures in this presentation.  Manitex believes that this information is useful to understanding its
operating results without the impact of special items. See Manitex’s Q1 2014 earnings release on the Investor Relations
section of our website www.manitexinternational.com for a description and/or reconciliation of these measures.
7/24/2014
Nasdaq: MNTX

Agreement with PM-Group
3
7/24/2014
Nasdaq: MNTX
Manitex
International,
Inc.
(Nasdaq:
MNTX)
has
reached
an
agreement
to
acquire
PM-Group
SpA
(PM
and
Oil
&
Steel
SpA,)
of
San
Cesario
sul
Panaro,
Modena,
Italy.
•
Consideration of $107 million, subject to post-closing adjustments and earnout
provisions, is expected to consist of a combination of debt, equity, and the
assumption of $68 million in debt and liabilities.
•
The acquisition is expected to close in the fourth quarter of 2014, subsequent to
the pending Italian Court approval of a debt restructuring plan.
•
PM-Group had accumulated $140M in debt, following 2008 LBO, which has
created an opportunity for Manitex to acquire the company and restructure the
debt.
•
PM-Group has trailing twelve months revenues of $106 million and adjusted
EBITDA margins of approximately 9% .

Deal Structure
Purchase Price of $109 Million consists of:
•
$24 million in cash provided by a new Manitex term loan with
current Manitex Banking group.
•
$15 million in new equity issuance (approximately 1 million
MNTX shares) distributed primarily to current PM banks.
•
$68 million in assumed debt and liabilities which includes
working capital facilities for PM.
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7/24/2014
Nasdaq: MNTX

Acquisition Rationale:
5
Acquisition fits into Manitex International stated growth objectives to achieve
growth both organically and through acquisitions.  PM-Group represents our
largest acquisition to date.
PM-Group is a strong strategic fit:
•
Adds product classes -
knuckle boom cranes and truck mounted aerial
platforms-
both are a highly desired product categories with strong demand.
•
Adds new manufacturing facilities/capacity
•
Adds new distributors, geographies and niche markets
Accelerates Manitex growth both within Europe and globally
Compelling synergies create value for shareholders
•
Accretion to EBITDA and Earnings expected in 2014
7/24/2014
Nasdaq: MNTX

What We are Buying
6
7/24/2014
Nasdaq: MNTX
•
PM
is
a
leading
Italian
manufacturer
of
truck-mounted
hydraulic
knuckle
boom cranes, with diverse product lines ranging up to 108 ton meters in
lifting capacity, sales in 50 countries including Western and Eastern
Europe, South America, Middle & Far East, and North America.
•
Oil & Steel
(“O&S”) is a market leader in truck mounted aerial
platforms.
•
PM and O&S’
headquarters and assembly plants are located in San
Cesario sul Panaro, in the province of Modena, Italy, together with a
manufacturing plant in Romania.

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7/24/2014
Nasdaq: MNTX

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7/24/2014
Nasdaq: MNTX

Combination of Manitex and PM-Group
9
7/24/2014
Nasdaq: MNTX
HIGHLIGHTS:
•
Annualized Pro Forma Revenues in excess of $350 Million
•
Annualized Pro Forma EBITDA in excess of $30 Million
•
Long-term Gross Margin Target Remains ~20%
•
Long-term EBITDA Margin Target Remains ~10%
•
Pro forma combined backlog as of March 31, 2014 is ~$116 Million
•
Manitex International now offers its dealers both straight-mast and
knuckle boom cranes

Operating Companies
10
Brand
Products
End Markets
Drivers
•
Boom trucks and cranes
•
Sign cranes
•
Parts
•
Energy exploration
•
Power transmission
•
Industrial projects
•
Infrastructure development
•
Strong end market demand for specialized,
competitively differentiated products for oil, gas,
and energy sectors
•
Product development
•
Rough terrain cranes
•
Specialized construction
equipment
•
Parts
•
Railroad
•
Construction
•
Refineries
•
Municipality
•
Equipment replacement cycle in small tonnage
flexible cranes for refinery market
•
More efficient product offering across end
markets
•
Rough terrain forklifts
•
Special mission-oriented vehicles
•
Custom specialized carriers
•
Parts
•
Military
•
Utility
•
Ship building
•
Commercial
•
Steady, profitable growth from both commercial
and military application of products
•
Custom trailers
•
Hauling systems for heavy
equipment transport
•
Parts
•
Energy
•
Mining
•
Railroad
•
Commercial construction
•
U.S. energy exploration build-out
•
Oil and gas exploration
•
General infrastructure construction
•
Reach stackers
•
Container handling forklifts
•
Parts
•
Global container market
•
International container market and global trade
•
Re-establishing customer relationships and select
product categories
•
Specialized equipment for liquid
storage & containment
•
8,000-21,000 gallon capacities
•
Large client base in energy sector
•
Petrochemical
•
Waste management
•
Oil & gas drilling 
•
Reputation for quality & innovation
•
Serves a market of over $1B annually
•
At acquisition, TTM (3/31/13) revenues ~ $39.1M,
adjusted EBITDA ~ $4.5M, EBIT ~ $4.2M
7/24/2014
Nasdaq: MNTX

Operating Companies
11
Brand
Products
End Markets
Drivers
•
Precision pick & carry cranes
•
Automotive
•
Chemical / petrochemical
•
Industrial projects
•
Infrastructure development
•
Aerospace
•
Construction
•
Strong end market demand for specialized,
competitively differentiated products
•
Environmental (electric) or hazardous (spark free)
developments
•
Product development
7/24/2014
Nasdaq: MNTX
•
Full line of Knuckle boom cranes
•
Truck—mounted Aerial Platforms
•
Energy
•
Signage/displays
•
Mining
•
Industrial projects
•
Infrastructure development
•
Powerline Maintenance
•
Vehicle recovery
•
Strong end market demand for products serving
diverse group of niche markets
•
Product development focused on growing
demand for higher tonnage equipment
•
International demand recovery fueling expansion
of international sales