Banca IMI S.p.A. and Soci´et´e G´en´erale Corporate and Investment Banking (the ‘‘Joint Lead Managers’’) have, in a subscription agreement dated 28 November 2006 (the ‘‘Subscription Agreement’’) and made between the Issuer, the Guarantor and the Joint Lead Managers upon the terms and subject to the conditions contained therein, agreed to subscribe for the Notes at their issue price of 100 per cent. of their principal amount less a combined management, underwriting and selling commission of 1.25 per cent. of their principal amount. The Issuer (failing which, the Guarantor) has also agreed to reimburse the Joint Lead Managers for certain of their expenses incurred in connection with the management of the issue of the Notes. The Joint Lead Managers are entitled in certain circumstances to be released and discharged from their obligations under the Subscription Agreement prior to the closing of the issue of the Notes.
United Kingdom
Each Joint Lead Manager has further represented, warranted and undertaken under the Subscription Agreement that:
(a) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of the Notes in circumstances in which Section 21(1) of the FSMA does not apply to the Issuer or the Guarantor; and
(b) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to any of the Notes in, from or otherwise involving the United Kingdom.
United States of America
The Notes and the Trevi Shares have not been and will not be registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in certain transactions exempt from the registration requirements of the Securities Act. Terms used in this paragraph have the meanings given to them by Regulation S.
Each Joint Lead Manager has agreed that, except as permitted by the Subscription Agreement, it will not offer, sell or deliver the Notes, (a) as part of their distribution at any time or (b) otherwise, until 40 days after the later of the commencement of the offering and the issue date of the Notes, within the United States or to, or for the account or benefit of, U.S. persons, and that it will have sent to each dealer to which it sells Notes during the distribution compliance period a confirmation or other notice setting forth the restrictions on offers and sales of the Notes within the United States or to, or for the account or benefit of, U.S. persons.
In addition, until 40 days after commencement of the offering, an offer or sale of Notes within the United States by a dealer (whether or not participating in the offering) may violate the registration requirements of the Securities Act.
The Notes are subject to U.S. tax law requirements and may not be offered, sold or delivered within the United States or its possessions or to a United States person, except in certain transactions permitted by U.S. tax regulations (Section 1.163-5(c)(2)(i)(D) of the regulations under the United States Internal Revenue Code). Terms used in this paragraph have the meanings given to them by the United States Internal Revenue Code and regulations thereunder.
In compliance with such U. S. federal tax laws and regulations, the Notes may not be offered, sold or delivered during the restricted period to a person within the United States or its possessions or to a U. S. person other than an exempt purchaser. Furthermore, the Notes may not be delivered, in connection with the sale thereof during the restricted period, in definitive form within the United States or its possessions.
For purposes of the selling restrictions described in this section, an offer or sale will be considered to be made to a person who is within the United States or its possessions if the offeror or seller of the Notes has an address within the United States or its possessions for the offeree or buyer of the Notes with respect to the offer or sale.
Ireland
Each Joint Lead Manager has represented and agreed that:
(a) it has not and will not make and has not authorised any person to make any offer or sale of the Notes to the public (within the meaning of Directive 2003/71/EC or the Irish Companies Acts 1963 to 2005) wherever situated;
(b) in connection with offers or sales of Notes, it has only issued or passed on, and will only issue or pass on, in Ireland or elsewhere, any document received by it in connection with the issue of Notes to persons who are persons to whom the document may otherwise lawfully be issued or passed on;
(c) it has complied and will comply with all applicable provisions of the Investment Intermediaries Acts of 1995 to 2000 Ireland (as amended) with respect to anything done by it in relation to the Notes or operating in, or otherwise involving Ireland and, in the case of a Joint Lead Manager acting under and within the terms of an authorisation to do so for the purposes of EU Council Directive 93/22/EEC of 10 May 1993 (as amended), it has complied with any codes of conduct made under the Investment Intermediaries Acts of 1995 to 2000 of Ireland (as amended) and, in the case of a Joint Lead Manager acting within the terms of an authorisation granted to it for the purposes of EU Council Directive 2000/12/EC of 20 March 2000 (as amended), it has complied with any codes of conduct or practice made under section 117(1) of the Central Bank Act, of Ireland (as amended);
(d) it has not offered, sold or delivered and will not offer, sell or deliver any Notes in Ireland or to any person, including any body corporate, resident in Ireland or whose usual place of abode is in Ireland (an ‘‘Irish Person’’); and
(e) it has not issued or distributed, and will not issue or distribute or cause to be issued or distributed, in Ireland or to any Irish Person, this Prospectus or any other document offering the Notes for subscription or sale.
Italy
The offering of the Notes has not been cleared pursuant to Italian securities legislation and, accordingly, each Joint Lead Manager has represented and agreed that it has not offered or sold, and will not offer or sell, any Notes in Italy in a solicitation to the public and that sales of the Notes by each Joint Lead Manager in Italy will be effected in accordance with all Italian securities, tax and exchange control and other applicable laws and regulations.
Each Joint Lead Manager has represented and agreed that it will not offer, sell or deliver any Notes or distribute copies of the Prospectus or any other document relating to the Notes in Italy except:
(i) to ‘‘Professional Investors’’, as defined in Article 31, paragraph 2 of CONSOB Regulation No. 11522 of 1 July 1998, as amended (‘‘Regulation No. 11522’’), pursuant to Article 30, paragraph 2 and Article 100 of Legislative Decree No. 58 of 24 February 1998, as amended (‘‘Decree No. 58’’); or
(ii) in any other circumstances where an express exemption from compliance with the solicitation restrictions provided under Decree No. 58 or CONSOB Regulation No. 11971 of 14 May 1999, as amended, applies. The Notes cannot be offered or sold to any natural persons not to entities other than professional investors either on the primary or on the secondary markets. Any such offer, sale or delivery of the Notes or distribution of copies of the Prospectus or any other document relating to the Notes in Italy must be:
(a) made by investment firms, banks or financial intermediaries permitted to conduct such activities in Italy in accordance with Legislative Decree No. 385 of 1 September 1993 as amended (‘‘Decree No. 385’’), Decree No. 58, Regulation No. 11522 and any other applicable laws and regulations;
(b) in compliance with Article 129 of Decree No. 385 and the implementing instructions of the Bank of Italy, pursuant to which the issue and offer of securities in Italy is subject to prior notification to the Bank of Italy, unless an exemption applies, depending, inter alia, on the aggregate amount and the characteristics of the Notes issued or offered in Italy; and
(c) in compliance with any other applicable notification requirement or limitation which may be imposed by CONSOB or the Bank of Italy.
Investors should also note that Article 100-bis of Decree No. 58 affects the transferability of Notes in Italy to the extent that an offer of Notes (or any part of such offer) is made solely to professional investors and such Notes are then transferred in Italy during the period of 12 months from the date of issue of the Notes. Where this occurs, professional investors who sell Notes to non-professional investors may be liable to such non-professional investors for any default by the Issuer in its payment obligations under the Notes if the Issuer is or becomes insolvent, even where the sale by the professional investor took place at the express request of the purchaser. The above provisions will not apply where the professional investor, prior to any such transfer of Notes, delivered to the purchaser an information document containing all such information as is required by CONSOB. As at the date of this Prospectus, CONSOB has not implemented any regulations specifying the content of such information document.
General
Each Joint Lead Manager has represented, warranted and agreed that it has complied and will comply with all applicable laws and regulations in each country or jurisdiction in which it purchases, offers, sells or delivers Notes or possesses, distributes or publishes this Prospectus or any other offering material relating to the Notes. Persons into whose hands this Prospectus comes are required by the Issuer, the Guarantor and each Joint Lead Manager to comply with all applicable laws and regulations in each country or jurisdiction in which they purchase, offer, sell or deliver Notes or possess, distribute or publish this Prospectus or any other offering material relating to the Notes, in all cases at their own expense.
GENERAL INFORMATION