0000891836-16-000159.txt : 20160104 0000891836-16-000159.hdr.sgml : 20160104 20160104140529 ACCESSION NUMBER: 0000891836-16-000159 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20160104 DATE AS OF CHANGE: 20160104 GROUP MEMBERS: PIERO FERRARI SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: Ferrari N.V. CENTRAL INDEX KEY: 0001648416 STANDARD INDUSTRIAL CLASSIFICATION: MOTOR VEHICLES & PASSENGER CAR BODIES [3711] IRS NUMBER: 000000000 STATE OF INCORPORATION: P7 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-89223 FILM NUMBER: 161317507 BUSINESS ADDRESS: STREET 1: VIA ABETONE INFERIORE N. 4 CITY: MARANELLO STATE: L6 ZIP: I-41053 BUSINESS PHONE: 00390536949111 MAIL ADDRESS: STREET 1: VIA ABETONE INFERIORE N. 4 CITY: MARANELLO STATE: L6 ZIP: I-41053 FORMER COMPANY: FORMER CONFORMED NAME: NEW BUSINESS NETHERLANDS N.V. DATE OF NAME CHANGE: 20150717 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Exor S.p.A. CENTRAL INDEX KEY: 0001589122 IRS NUMBER: 000000000 STATE OF INCORPORATION: L6 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: VIA NIZZA 250 CITY: TURIN STATE: L6 ZIP: 10126 BUSINESS PHONE: 390115090345 MAIL ADDRESS: STREET 1: VIA NIZZA 250 CITY: TURIN STATE: L6 ZIP: 10126 SC 13D 1 sc0131.htm SCHEDULE 13D sc0131.htm
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
SCHEDULE 13D
(Rule 13d-101)
 
Information to be Included in Statements Filed Pursuant to § 240.13d-1(a) and Amendments Thereto Filed Pursuant to § 240.13d-2(a)
 
Under the Securities Exchange Act of 1934
 
Ferrari N.V.
 
(Name of Issuer)
 
Common shares, par value €0.01 per share
(Title of Class of Securities)


N3167Y 103
(CUSIP Number)

 
Scott D. Miller
Sullivan & Cromwell LLP
125 Broad Street
New York, New York 10004-2498
Telephone: +1-212-558-4000
Facsimile: +1-212-558-3588
Email: millersc@sullcrom.com
(Name, Address and Telephone Number of Person
Authorized to Receive Notices of Communication)

January 3, 2016
(Date of Event Which Requires Filing of This Statement)
 
 
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ¨
 
Note. Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See § 240.13d-7 for other parties to whom copies are to be sent.


 
 
 


CUSIP No. N3167Y 103
1
Name of Reporting Persons
Exor S.p.A.
2
Check the Appropriate Box if a Member of a Group (See Instructions)
(a)           x
(b)
3
SEC Use Only
 
4
Source of Funds (See Instructions)
OO
 
5
Check if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e)
 
6
Citizenship or Place of Organization
The Republic of Italy
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person
With
7
Sole Voting Power
44,435,2801
8
Shared Voting Power
0
9
Sole Dispositive Power
44,435,280
10
Shared Dispositive Power
0
11
Aggregate Amount Beneficially Owned by Each Reporting Person
63,327,4402
12
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
 
13
Percent of Class Represented by Amount in Row (11)
33.5 %3
14
Type of Reporting Person (See Instructions)
HC, CO
_______________
1
Each of Exor S.p.A. (“Exor”) and Piero Ferrari (together with Exor, the “Reporting Persons”) participate in the loyalty voting program of Ferrari N.V. (“Ferrari” or the “Issuer”), which enables qualifying common shareholders to hold one special voting share for each common share they hold.  Each special voting share is entitled to one vote, therefore attributing, in effect, double voting rights to the associated common share. The special voting shares have only de minimis economic entitlements, in compliance with Dutch law and they are transferrable only in very limited circumstances together with the associated common share. As a consequence of participating in the loyalty voting program, Exor beneficially owns, in addition to the common shares indicated above, 37,580,387 special voting shares of Ferrari.  As noted below, Piero Ferrari beneficially owns 18,892,160 special voting shares.

2
Includes (i) 44,435,280 Ferrari common shares owned by Exor and (ii) 18,892,160 Ferrari common shares owned by Piero Ferrari. The Reporting Persons are party to a Shareholders Agreement the terms of which are described in Item 6 of this Schedule 13D.

3
This percentage based on the outstanding common shares of the Issuer does not take into account voting rights arising from the Issuer’s loyalty voting program in which certain shareholders are eligible to hold one special voting share for each qualifying common share held. Taking into account the Reporting Persons’ ownership of special voting shares described in footnote 1 above, Exor’s voting power in the Issuer is approximately 33.4%, Piero Ferrari’s voting power in the Issuer is approximately 15.4% and in aggregate the Reporting Persons’ voting power in Ferrari is approximately 48.8%. These percentages are calculated as the ratio of (i) the aggregate number of common shares and special voting shares beneficially owned by the Reporting Persons to (ii) the total number of outstanding common shares and outstanding special voting shares of Ferrari.
 

2
 
 
 

 
CUSIP No. N3167Y 103
1
Name of Reporting Persons
Piero Ferrari
2
Check the Appropriate Box if a Member of a Group (See Instructions)
(a)           x
(b)
3
SEC Use Only
 
4
Source of Funds (See Instructions)
OO
 
5
Check if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e)
 
6
Citizenship or Place of Organization
The Republic of Italy
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person
With
7
Sole Voting Power
18,892,1604
8
Shared Voting Power
0
9
Sole Dispositive Power
18,892,160
10
Shared Dispositive Power
0
11
Aggregate Amount Beneficially Owned by Each Reporting Person
63,327,4402
12
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
 
13
Percent of Class Represented by Amount in Row (11)
33.5 %3
14
Type of Reporting Person (See Instructions)
IN
_______________
4
In addition to the common shares indicated above, Piero Ferrari also owns 18,892,160 special voting shares of Ferrari.
 
 

3
 
 
 


ITEM 1. Security and Issuer.
 
This Schedule 13D relates to the common shares of Ferrari N.V. (“Ferrari” or the “Issuer”). Ferrari’s principal executive offices are located at Via Abetone Inferiore n. 4, I-41053 Maranello (MO), Italy. Its telephone number is +39-0536-949111.

ITEM 2. Identity and Background.
 
This Schedule 13D is being jointly filed by Exor S.p.A. (“Exor”) and Mr. Piero Ferrari (collectively, the “Reporting Persons”).

Exor S.p.A
 
(a)-(c) Exor, a società per azioni organized under the laws of the Republic of Italy, focuses its business on long-term controlling investments in global companies in diversified sectors, mainly in Europe and the United States. The address of Exor’s principal business and principal office is Via Nizza, 250, Turin, Italy. The name, business address, present principal occupation or employment (and the name, principal business and address of any corporation or other organization in which such employment is conducted) and citizenship of each executive officer and director of Exor, each person controlling Exor and each executive officer and director of any corporation or other person in control of Exor are set forth in Schedule A hereto.

(d)-(e) During the last five years, neither Exor nor, to the best knowledge of Exor, any of the persons listed in Schedule A, has been (i) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws, or finding any violation with respect to such laws.

Piero Ferrari
 
(a)-(c) Mr. Ferrari’s principal occupation is as Vice Chairman of Ferrari. He also serves as Chairman of HPE-COXA, is a board member and Vice President of CRN Ancona (Ferretti Group) and Board Member of Modena University. His business address is Via Abetone Inferiore n. 4, I-41053 Maranello (MO), Italy.

(d)-(e) During the last five years, Mr. Ferrari has not been (1) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (2) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was not or is not subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

(f) Mr. Ferrari is a citizen of the Republic of Italy.
 

4
 
 
 


ITEM 3. Source and Amount of Funds or Other Consideration.
 
This Schedule 13D relates to common shares of Ferrari received by the Reporting Persons pursuant to a series of transactions (the “Separation”) that separated Ferrari from Fiat Chrysler Automobiles N.V. (“FCA”) and are summarized below.

The Separation included a restructuring of Ferrari that preceded and was intended to enable the initial public offering of Ferrari (the “IPO”).  Upon completion of this restructuring on October 19, 2015, Ferrari N.V., formerly known as New Business Netherlands NV and the predecessor company of the Issuer (“Predecessor Ferrari”) became the new holding company of the Ferrari group.  On such date, FCA held 90% of the common shares and 90% of the special voting shares of Predecessor Ferrari, and Mr. Ferrari held 10% of the common shares and 10% of the special voting shares of Predecessor Ferrari.  FCA and Mr. Ferrari previously held 90% of and 10%, respectively, of the ordinary shares of Ferrari S.p.A., the former parent company of the Ferrari business and currently a subsidiary of the Issuer.

Shortly following the completion of this restructuring, FCA sold common shares of Predecessor Ferrari representing approximately 10% of Predecessor Ferrari’s share capital in the IPO with concurrent listing of the common shares of Predecessor Ferrari on the New York Stock Exchange.

Through two successive demerger transactions under Dutch law completed on January 2, 2016, FCA transferred its remaining 80% interest in the Ferrari business to holders of its shares on a pro rata basis and to holders of FCA’s 7.875% mandatory convertible securities (“MCSs”).  Upon effectiveness of the demergers, each shareholder of FCA received one Ferrari common share for every 10 FCA common shares and one Ferrari special voting share for every 10 Ferrari special voting shares held as of the record date of the demergers.  In addition, Ferrari issued common shares to holders of MCSs, pursuant to the terms of the indenture governing the MCSs.

Immediately prior to the demergers, Exor held 375,803,870 common shares and 375,803,870 special voting shares of FCA, as well as $886 million in aggregate notional amount of MCSs.  Therefore, upon effectiveness of the demergers, in accordance with the demerger ratio described above and the terms of the MCSs, Exor received an aggregate of 44,435,280 common shares and 37,580,387 special voting shares in Ferrari.

Shortly following completion of the demergers, Predecessor Ferrari was merged with and into the Issuer (previously known as FE New N.V. and renamed Ferrari N.V. upon effectiveness of the merger). Pursuant to the merger, each holder (other than FE New N.V.) of common shares in Predecessor Ferrari, including Mr. Ferrari, received one common share in Ferrari for each common share held in Predecessor Ferrari and each holder (other than FE New N.V.) of special voting shares in Predecessor Ferrari received one special voting share in Ferrari for each special voting share held in Predecessor Ferrari N.V.; the common shares and special voting shares held by FE New N.V. in Predecessor Ferrari were cancelled pursuant to the merger.  The merger became effective on January 3, 2016.
 

5
 
 
 


Following completion of the Separation, Exor holds common shares representing approximately 23.5% of Ferrari’s outstanding common shares. In light of the special voting shares as described above, Exor’s voting power in Ferrari is approximately 33.4%, calculated as the ratio of (i) the aggregate number of common shares and special voting shares beneficially owned by Exor and (ii) the total number of outstanding common shares and outstanding special voting shares of Ferrari. Following completion of the Separation, Piero Ferrari holds 18,892,160 common shares, representing 10% of Ferrari’s outstanding common shares, and 18,892,160 special voting shares.  His voting power in Ferrari is approximately 15.4%.

ITEM 4. Purpose of Transaction.

The principal objective of each of the Reporting Persons’ investment in Ferrari is the creation of value over time for all shareholders, by supporting Ferrari’s business growth strategies which will be identified and adopted by the board of directors and the management of Ferrari.

Neither Reporting Person has any present plans or proposals which relate to or would result in: (i) any acquisition by any person of additional securities of Ferrari, or any disposition of securities of Ferrari; (ii) any extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving Ferrari or any of its subsidiaries; (iii) any sale or transfer of a material amount of assets of Ferrari or any of its subsidiaries; (iv) any change in the present board of directors or management of Ferrari, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the board; (v) any material change in the present capitalization or dividend policy of Ferrari; (vi) any other material change in Ferrari's business or corporate structure; (vii) any change in Ferrari's charter or bylaws or other actions which may impede the acquisition of control of Ferrari by any person; (viii) any delisting from a national securities exchange or any loss of authorization for quotation in an inter-dealer quotation system of a registered national securities association of a class of securities of Ferrari; (ix) any termination of registration pursuant to Section 12(g)(4) of the Exchange Act of a class of equity securities of Ferrari; or (x) any action similar to any of those enumerated above.

Notwithstanding the foregoing, each of the Reporting Persons expects to evaluate on an ongoing basis Ferrari’s financial condition and prospects and its interest in, and intentions with respect to, Ferrari. In particular, Exor may acquire additional shares in Ferrari consistent with its general investment philosophy pursuant to which it seeks to hold controlling interests (generally 30% or more of such companies’ shares) in companies in which it invests. Accordingly, the Reporting Persons reserve the right to develop, modify or change their respective plans as they deem appropriate. For example, any of the Reporting Persons may at any time and from time to time (1) acquire additional securities of Ferrari in open market or privately negotiated transactions or pursuant to the exercise of warrants, stock options or convertible or exchangeable securities; (2) dispose of such securities; (3) enter into privately negotiated derivative transactions with institutional counterparties to hedge the market risk of some or all of its positions in such securities; and/or (4) continue to hold such securities for investment purposes. Any such transactions may be effected at any time and from time to time. In reaching any determination as to its future course of action, each Reporting Person may take into consideration various factors, such as Ferrari's business and prospects, other developments concerning Ferrari, other business opportunities available to the Reporting Persons, and general economic and stock market conditions, including, but not limited to, the market price of the common shares of Ferrari.
 

6
 
 
 


Representatives of either of the Reporting Persons may conduct discussions from time to time with one another as well as with management of the Issuer, the Issuer’s other shareholders and/or other relevant parties, including other companies that operate in the businesses and markets in which the Issuer conducts its businesses, in each case relating to matters that may include the Issuer’s strategic plans, business, financial condition, operations, and capital structure.  The Reporting Persons may engage with any of the parties listed above in discussions that may include one or more of the other actions described in subsections (a) through (j) of Item 4 of Schedule 13D.  As a result of these activities, any of the Reporting Persons may suggest, or take a position with respect to, potential changes in the operations, management, or capital structure of Ferrari as a means of enhancing shareholder value. Such suggestions or positions may relate to one or more of the transactions described in Item 4(a) through (j) of Schedule 13D under Rule 13d-1(a), including, without limitation, such matters as disposing of one or more businesses; selling or merging Ferrari or acquiring other companies or businesses; changing strategies; adopting, not adopting, modifying, or eliminating certain types of anti-takeover measures; modifying Ferrari’s capitalization; reviewing dividend and compensation policies; entering into agreements with third parties relating to acquisitions of securities issued or to be issued by Ferrari; entering into agreements with Ferrari relating to acquisitions of shares in Ferrari by members of management, issuance of options to management, or their employment by Ferrari.  In particular, Exor expects from time to time to suggest appropriate candidates for election to the Issuer’s Board of Directors in a manner consistent with the Issuer’s then current governance policies.

ITEM 5. Interest in Securities of the Issuer.
 
Item 3 is hereby incorporated by reference in this Item.

(a) In respect to the Reporting Persons, rows (11) and (13) of the cover pages to this Schedule 13D are incorporated by reference herein.

Furthermore, the following persons listed in Schedule A beneficially own common shares of Ferrari. The holdings below do not include and are separate from common shares held by Exor.

 
·
Mr. Sergio Marchionne owns 1,462,000 common shares;

 
·
Mr. Andrea Agnelli owns 1,122 common shares;

 
·
Mr. Tiberto Brandolini d'Adda owns 700 common shares; and

 
·
Mr. John Elkann owns 13,300 common shares of record.

(b) In respect to the Reporting Persons, rows (7) through (10) of the cover pages to this Schedule 13D are hereby incorporated by reference.

The persons listed in Schedule A hereto and named in Item 5 above have the sole voting power and sole dispositive power in respect of the entire number of shares indicated in this Item 5. There are no other persons known to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, such securities.
 

7
 
 
 


(c) Except as set forth below or otherwise in this Schedule 13D, neither the Reporting Persons nor any persons listed in Schedule A, have effected any transactions with respect to common shares of FCA during the past 60 days:

 
·
In connection with the Separation, Mr. Sergio Marchionne acquired 1,462,000 common shares of Ferrari attributable to the common shares he held in FCA at the time of the Separation.

 
·
In connection with the Separation, Mr. Andrea Agnelli acquired 1,122 common shares of Ferrari attributable to the common shares he held in FCA at the time of the Separation.

 
·
In connection with the Separation, Mr. Tiberto Brandolini d'Adda acquired 700 common shares of Ferrari attributable to the common shares he held in FCA at the time of the Separation.

 
·
In connection with the Separation, Mr. John Elkann acquired 13,300 common shares of Ferrari attributable to the common shares he held in FCA at the time of the Separation.

(d) Not applicable.

(e) Not applicable.

ITEM 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.
 
Shareholders’ Agreement between Piero Ferrari and Exor S.p.A.
 
On December 23, 2015, Exor and Piero Ferrari entered into a Shareholders’ Agreement, which became effective at the completion of the Separation on January 3, 2016 (the “Shareholders Agreement”).  Ferrari is not a party to the Shareholders Agreement and does not have any rights or obligations thereunder. Below is a summary of the principal provisions of the Shareholders Agreement which is attached as Exhibit 3 to this Schedule 13D and is incorporated by reference into this Item.
 
Consultation
 
For the purposes of forming and exercising, to the extent possible, a common view on the items on the agenda of any General Meeting, Exor and Piero Ferrari will consult with each other prior to each General Meeting. For the purposes of this consultation right and duties, representatives of each of Exor and Piero Ferrari shall meet in order to discuss in good faith whether they have or can find a common view as to the matters on the agenda of the immediately following General Meeting.  This consultation right does not include an obligation to vote in any certain way nor does it constitute a veto right in favor of Piero Ferrari.
 
 
8
 
 
 


AFS mandatory offer rules - acting in concert
 
Exor and Piero Ferrari acknowledge and agree that the Dutch public offer rules as laid down in chapter 5.1 of the Dutch Act on Financial Supervision (Wet op het financieel toezicht, the “AFS”) will, as of January, 4 2016, the date on which trading in the common shares on the Mercato Telematico Azionario (“MTA”) commences, be applicable to Ferrari and the Shareholders. As – upon the Separation becoming effective and prior to the first trading date on the MTA – (i) Exor individually, and Exor and Piero Ferrari combined, will continue to have a voting interest of more than 30% in Ferrari as a result of which Exor individually, and Exor and Piero Ferrari combined, are deemed to have a controlling influence over Ferrari within the meaning of Dutch law.  Therefore, Exor individually and Exor and Piero Ferrari combined, as well as any ultimate controlling persons of either of them, will benefit from an exemption from the Dutch mandatory takeover offer requirements.
 
Pre-emption right in favor of Exor and right of first offer of Piero Ferrari
 
In the event that Piero Ferrari intends to transfer (in whole or in part) his Ferrari common shares or he receives a third party offer for the acquisition of all or part of his Ferrari common shares, Exor will have the right to purchase all (but not less than all) of the common shares Piero Ferrari intends to transfer on the terms of the original proposed transfer by Piero Ferrari or, in case the original proposed transfer was for no consideration, at market prices determined pursuant to the agreement.
 
In the event Exor intends to transfer (in whole or in part) its common shares to a third party, either solicited or unsolicited, Piero Ferrari will have the right to make a binding, unconditional and irrevocable all cash offer for the purchase of such common shares.
 
The foregoing will not apply to in case of transfers of common shares: (i) by any party to the Shareholders Agreement, to a party that qualifies as a “Loyalty Transferee” (as defined in the Articles of Association) of such party, (ii) by Exor, to any affiliate of Giovanni Agnelli e C. S.a.p.az., to a successor in business of Giovanni Agnelli e C. S.a.p.az. and to any affiliate of a successor in business of Giovanni Agnelli e C. S.a.p.az., and (iii) by any party to the Shareholders Agreement that is an individual, to an entity wholly owned and controlled by that same party. In addition, the provisions regarding the pre-emption right in favor of Exor and right of first offer of Piero Ferrari shall not apply in relation to, and Piero Ferrari shall be free and allowed to carry out, market sales to third parties of his common shares which in the aggregate do not exceed, during the whole period of validity of the Shareholders Agreement, 0.5% of the number of common shares owned by Piero Ferrari upon completion of the Separation.
 
Term
 
The Shareholders Agreement entered into force upon completion of the Separation, and shall remain in force until the fifth anniversary of the date of the Separation, provided that if neither of the parties to the Shareholders Agreement terminates the Shareholders Agreement within six months before the end of the initial term, then the Shareholders Agreement shall be renewed automatically for another five year term.
 
The Shareholders Agreement shall terminate and cease to have any effect as a result of the transfer of all the common shares owned by either Exor or Piero Ferrari to a third party.
 
 
9
 
 
 


Governing law and jurisdiction
 
The Shareholders Agreement is governed by and must be interpreted according to the laws of the Netherlands. Any disputes arising out of or in connection with the Shareholders Agreement are subject to the exclusive jurisdiction of the competent court in Amsterdam, the Netherlands, without prejudice to the right of appeal and appeal to the Supreme Court.
 
Lock-up Letter Agreement among Piero Ferrari, UBS Securities LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated
 
On October 12, 2015, Piero Ferrari, UBS Securities LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated entered into a Lock-up Letter Agreement restricting his ability to offer, pledge, sell, contract to sell or otherwise transfer or dispose of, all or a portion of the economic consequences of ownership of, any of the Ferrari common shares or any securities convertible into or exercisable or exchangeable for Ferrari common shares acquired upon completion of the pre-IPO restructuring as described in Item 3 above. The restrictions in this agreement will expire ninety days after the IPO, or January 18, 2016. This agreement is filed as Exhibit 4 to this Schedule 13D and incorporated by reference into this Item.
 
Lock-up Letter Agreement among Sergio Marchionne, UBS Securities LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated
 
On October 12, 2015, Sergio Marchionne, UBS Securities LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated entered into a Lock-up Letter Agreement restricting his ability to offer, pledge, sell, contract to sell or otherwise transfer or dispose of, all or a portion of the economic consequences of ownership of, any of the Ferrari common shares or any securities convertible into or exercisable or exchangeable for Ferrari common shares acquired as described in Item 5 above upon completion of the Separation described in Item 3. The restrictions in this agreement will expire ninety days after the IPO, or January 18, 2016. This agreement is filed as Exhibit 5 to this Schedule 13D and incorporated by reference into this Item.
 
For further information reference is made to Item 3 above, which is incorporated by reference in this Item 6.
 
ITEM 7. Material to Be Filed as Exhibits.
 

Exhibit 1
Joint Filing Agreement pursuant to Rule 13d-1(k) among Piero Ferrari and Exor S.p.A.
 
Exhibit 2
Power-of-attorney for Piero Ferrari
 
Exhibit 3
Shareholders’ Agreement between Piero Ferrari and Exor S.p.A., dated December 23, 2015, effective January 3, 2016

Exhibit 4
Lock-up Letter Agreement, dated October 12, 2015, among Piero Ferrari, UBS Securities LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated

Exhibit 5
Lock-up Letter Agreement, dated October 12, 2015, among Sergio Marchionne, UBS Securities LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated
 

10
 
 
 

SIGNATURE
 
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, each of the undersigned hereby certifies that the information set forth in this statement is true, complete and correct.
 
Date: January 4, 2016
 

Piero Ferrari
 
 
 /s/ P. Ferrari


Exor S.p.A.
 
By:
 /s/ John Elkann
 
Name:
  John Elkann 
 
Title:
  Chairman and Chief Executive Officer 
 

 
11
 
 
 

SCHEDULE A
 

Set forth below are the names, business address, present principal occupation or employment (and the name, principal business and address of any corporation or other organization in which such employment is conducted) of the chief executive officer and each director of Exor S.p.A. Unless otherwise indicated, the citizenship of each person listed below is Italian, and the business address of each person listed below is c/o Exor S.p.A., Via Nizza 250, Turin, 10126, Italy.
 

NAME AND POSITION WITH EXOR S.P.A.
PRINCIPAL EMPLOYMENT, EMPLOYER
AND BUSINESS ADDRESS
CITIZENSHIP
John Elkann
Chairman and Chief Executive Officer
Managing Partner and Chairman Giovanni Agnelli e C. S.a.p.az., Via
Nizza 250, 10126 Turin, Italy; Chairman Fiat Chrysler Automobiles N.V.,
25 St. James’s Street, London, SW1A 1HA, UK; Director CNH Industrial N.V., 25 St. James’s Street, London, SW1A 1HA, UK; Chairman Italiana Editrice S.p.A., Via Lugaro 15, 10126 Turin, Italy; Non- executive Director The Economist Group, 25 St James’s Street, London, SW1A 1HG, UK; Director NEWS Corporation, 1211 Avenue of the Americas, New York, NY 10036; Vice Chairman Fondazione Giovanni Agnelli Via Nizza 250, 10126 Turin, Italy.
 
Italian citizen
Sergio Marchionne
Vice Chairman
Chief Executive Officer Fiat Chrysler Automobiles N.V., 25 St. James’s Street, London, SW1A 1HA, UK; Chairman and CEO FCA US LLC, 1000 Chrysler Dr., Auburn Hills, MI 48326, USA; Chairman and CEO FCA Italy S.p.A., Corso Agnelli 200, 10135 Turin, Italy; Chairman Ferrari N.V. Via Abetone Inferiore 4, 41053 Maranello, Italy; Chairman Ferrari S.p.A. Via Abetone Inferiore 4, 41053 Maranello, Italy; Chairman CNH Industrial N.V., 25 St. James’s Street, London, SW1A 1HA, UK; Chairman IVECO S.p.A., Via Puglia 35, 10156 Turin, Italy; Chairman FPT Industrial S.p.A. Via Puglia 15, 10156 Turin, Italy; Chairman SGS S.A., 1 Place des Alpes, Geneva, 1211 Switzerland; Director Philip Morris International Inc, 120 Park Avenue, New York, NY 10017, USA.
 
Dual Canadian and Italian citizen
Alessandro Nasi
Vice Chairman
President Specialty Vehicles and Coordinator of the Group Executive Council CNH Industrial N.V., Cranes Farm Road Basildon, Essex, SS14 3AD, UK; General Partner Giovanni Agnelli e C. S.a.p.az., Via Nizza 250, 10126 Turin, Italy.
 
Italian citizen
 
 
 
 
12
 
 
 


NAME AND POSITION WITH EXOR S.P.A.
PRINCIPAL EMPLOYMENT, EMPLOYER
AND BUSINESS ADDRESS
CITIZENSHIP
Andrea Agnelli
Director
Director Fiat Chrysler Automobiles N.V., 240 Bath Road, Slough, SL1 4DX, UK; Chairman Juventus Football Club S.p.A., Corso Galileo Ferraris 32, 10128 Turin, Italy; Chairman Lamse S.p.A., Piazza CLN 255, 10123 Turin, Italy; General Partner Giovanni Agnelli e C. S.a.p.az., Via Nizza 250, 10126 Turin, Italy; member of the Advisory Board BlueGem Capital Partners LLP, 16 Berkeley Street, London W1J 8DZ, UK; Director European Club Association, Route de St-Cergue 9, 1260 Nyon, Switzerland.
 
Italian citizen
Vittorio Avogadro di Collobiano
Director
Vice President Eni Midstream responsible for Small Scale LNG Business Development & Affiliates Business Coordination, Piazza Ezio Vanoni 1, 20097 San Donato Milanese (Milan) Italy.
 
Italian citizen
Giovanni Chiura
Independent Director
Chief Financial Officer and Board Member Sorgenia S.p.A., Via Vincenzo Viviani 12 - 20124 Milan, Italy; Director Tirreno Power, Via Barberini 47, 00100 Rome, Italy.
 
Italian citizen
Ginevra Elkann
Director
 
President Pinacoteca Giovanni e Marella Agnelli, Via Nizza n. 230/103, 10126 Turin, Italy; President Asmara Films S.r.l., Via Ruffini 2/A – 00195 Rome, Italy; President Good Films S.r.l., Via Ruffini 2/A scala C – 00195 Rome, Italy; Founder Good Short Films, Via Ruffini 2/A scala C – 00195 Rome, Italy; member of Christie’s Advisor Board, 20 Rockefeller Plaza, New York, NY 10020, USA; member of the Acquisition Committee and Executive Committee for the Cartier Foundation, 261, Boulevard Raspail - 75014 Paris, France; member of the Advisory Board of UCCA, via dei Monti di Pietralata, 16 - 00157 Rome, Italy; member of the Advisory Board of  Beijing,  8/F, Digital Beijing Building, Beichen West Road, Chaoyang District, Beijing, PRC 100013, China; member of the Advisory Board of the American Academy of Rome, Via Angelo Masina 5 - 00153, Rome, Italy.
 
Italian citizen
 
 
 

13
 
 
 


NAME AND POSITION WITH EXOR S.P.A.
PRINCIPAL EMPLOYMENT, EMPLOYER
AND BUSINESS ADDRESS
CITIZENSHIP
Annemiek Fentener Van Vlissingen
Independent Director
Chairman SHV Holdings, Rijnkade 1, 3511 LC Utrecht, The Netherlands; member of the Supervisory Board of Heineken NV, PO Box 28, 1000 AA Amsterdam, The Netherlands; member of the Supervisory Board of Utrecht University Hospital Heidelberglaan 100, 3584 CX Utrecht, The Netherlands; member of the Supervisory Board of Lhoist, Rue Charles Dubois 28, B - 1342 Limelette, Belgium.
 
Dutch citizen
Mina Gerowin
Independent Director
Director CNH Industrial N.V., Cranes Farm Road Basildon, Essex, SS14 3AD, UK.; Director LAFARGE S.A., 61 Rue des Belles Feuilles, 75116 Paris, France.
 
U.S. citizen
Jae Yong Lee
Independent Director
Vice Chairman, President and Chief Operating Officer Samsung Electronics Co., Ltd, Samsung Electronics Building 1320-10, Seocho-2-dong, Seocho-gu Seoul, Korea (Zip Code 137-965).
 
Korean citizen
Antonio Mota de Sousa Horta-Osorio
Independent Director
Executive Director and Group Chief Executive Lloyds Banking Group, 25 Gresham Street, London EC2V 7HN, UK; non-executive Director of Fundação Champalimaud, Avenida Brasília, 1400-038 Lisbon, Portugal; CBI President’s Committee, Cannon Place, 78 Cannon Street, London EC4N 6HN, UK; Governor of the London Business School, Regent's Park, London NW1 4SA, UK; Chairman of the Wallace Collection, Hertford House, Manchester Square, London W1U 3BN, UK.
 
Portuguese citizen
Lupo Rattazzi
Director
Chairman Neos S.p.A., Via della chiesa 68, 21019 Somma Lombardo (VA) Italy; Chairman Italian Hospital Group S.p.A., 188, Via Tiburtina, 00012 Guidonia, Rome, Italy; Director Banca Finnat Euramerica S.p.A., Palazzo Altieri - Piazza del Gesù 49, 00186 Rome, Italy; Director Coeclerici S.p.A., Piazza Generale Armando Diaz, 7, 20123 Milan, Italy; Director G.L. Investimenti S.r.l., Via Enrico Fermi 14, Monterotondo, Rome, Italy.
 
Italian citizen
 
 

14
 
 
 


NAME AND POSITION WITH EXOR S.P.A.
PRINCIPAL EMPLOYMENT, EMPLOYER
AND BUSINESS ADDRESS
CITIZENSHIP
Robert Speyer
Independent Director
President and Co-Chief Executive Officer of Tishman Speyer, Rockefeller Center, 45 Rockefeller Plaza, New York, New York 10111, USA; Chairman of the Real Estate Board of New York, 570 Lexington Avenue, 2nd Floor, New York, New York 10022, USA; Chairman of the Advisory Board of the Mayor’s Fund to Advance New York City, 253 Broadway, 6th Floor, New York, New York 10007, USA; Co-Chairman of the Construction Committee of the St. Patrick’s Cathedral Landmark Foundation; member of the Board of Trustees of New York- Presbyterian Hospital, USA; member of the International Advisory Board of Beijing University, No.5 Yiheyuan Road Haidian District, Beijing, P.R.China 100871; member of the International Advisory Board of Fudan University School of Management, 670, Guo Shun Road, Shanghai 200433, China.
 
U.S. citizen
Michelangelo Volpi
Lead Independent Director
Partner Index Ventures, 139 Townsend Street, Suite 505 San Francisco, CA 94107, USA; Director Sonos Inc, 223 E. De La Guerra, Santa Barbara, CA 93101, USA; Director Soundcloud Limited, Rheinsberger Str. 76/77, 10115 Berlin, Germany; Director Lookout, 1 Front Street, Suite 2700, San Francisco, CA 94111 USA; Director Path, 301 Howard St, Ste 2200, San Francisco CA, USA; Director Big Switch Networks, 855 El Camino Real Suite 260 Palo Alto CA, USA; Director Zuora, 3400 Bridge Pky Suite
203, Redwood City, CA, USA; Director Hortonworks, 3460 West
Bayshore Rd. Palo Alto, CA 94303 USA; Director Wealthfront Inc. 541
Cowper St. Palo Alto, CA 94301, USA; Director Elasticsearch, 800 West El Camino Real, Suite 350 Mountain View, California 94040, USA; Director NumberFour AG Berlin, Germany.
 
Italian citizen
Ruthi Wertheimer
Independent Director
Founder, Owner and Chairwoman of 7-Main, 16 Shenkar Arie Herzliya, Israel; Board Member of the Wertheimer Company Ltd, Israel.
 
Dual Israeli and German citizen

 
 

15
 
 
 


Giovanni Agnelli e C. S.a.p.az
 
Giovanni Agnelli e C. S.a.p.az (“GA”) is a limited partnership represented by shares (Societa’ in Accomandita per Azioni) and, as of the date of this Schedule 13D, is in control of Exor. The present principal business activity of G.A. is to purchase, administer and dispose of equity interests in public and private entities and, in particular, to ensure the cohesion and continuity of the administration of its controlling equity interests. The address of G.A.’s principal business and principal office is Via Nizza 250, 10126 Turin, Italy.
 
Set forth below are the names, business address, present principal occupation or employment of each managing partner of G.A. Unless otherwise indicated, the business address of each person listed below is c/o Giovanni Agnelli e C. S.a.p.az Via Nizza 250, 10126 Turin, Italy.
 
NAME AND POSITION WITH EXOR S.P.A.
PRINCIPAL EMPLOYMENT, EMPLOYER
AND BUSINESS ADDRESS
CITIZENSHIP
John Elkann
Managing Partner and Chairman
See above in this Schedule A.
Italian citizen
Tiberto Brandolini d'Adda
General Partner
Director Fiat Chrysler Automobiles N.V., 240 Bath Road, Slough, SL1 4DX, UK; General Partner Giovanni Agnelli e C. S.a.p.az., Via Nizza 250, 10126 Turin, Italy; Chairman Exor S.A. Boulevard Royal 22-24, L-2449 Luxembourg; Director YAFA S.p.A., Corso Vittorio Emanuele II, 72 10121 Turin, Italy.
 
Italian citizen
Alessandro Nasi
General Partner
See above in this Schedule A.
Italian citizen
Andrea Agnelli
General Partner
See above in this Schedule A.
Italian citizen
Luca Ferrero Ventimiglia
General Partner
General Partner of Giovanni Agnelli e C. S.a.p.az., Via Nizza 250, 10126 Turin, Italy.
 
Italian citizen
Maria Sole Agnelli
General Partner
Chairman Fondazione Giovanni Agnelli, via Nizza 250, 10126 Turin, Italy.
 
Italian citizen
 
 

16
 
 
 


NAME AND POSITION WITH EXOR S.P.A.
PRINCIPAL EMPLOYMENT, EMPLOYER
AND BUSINESS ADDRESS
CITIZENSHIP
Gianluca Ferrero
General Partner
Secretary of the Board of Directors of Exor S.p.A., Via Nizza 250, 10126
Turin, Italy; Chairman of the Statutory Auditors’ Board Luigi Lavazza S.p.A., Corso Novara 59, 10154 Turin, Italy; Chairman of the Statutory Auditors’ Board Biotronik Italia S.p.A., Via delle Industrie 11, 20090
Vimodrone-Milan, Italy; Chairman of the Statutory Auditors’ Board Italia Independent Group S.p.A., Corso XI Febbraio 19, 10152 Turin, Italy; Chairman of the Statutory Auditors’ Board Italia Independent S.p.A., Corso XI Febbraio 19, 10152 Turin, Italy; Member of the Statutory Auditors’ Board Fenera Holding S.p.A., Corso Matteotti 26, 10121 Turin, Italy; Member of the Statutory Auditors’ Board Alberto Lavazza S.a.p.a., Via del Carmine 10, 10122 Turin, Italy; Member of the Statutory Auditors’ Board Emilio Lavazza S.a.p.a., Via del Carmine 10, 10122 Turin, Italy; Member of the Statutory Auditors’ Board Limoni S.p.A., Via Agnello 12, 20121 Milan, Italy; Member of the Statutory Auditors’ Board Gabriel Fiduciaria S.r.l. Via del Carmine n. 10, Turin, Italy; Vice Chairman Banca del Piemonte S.p.A., Via Cernaia 7, 10121 Turin, Italy; Director ACB Group S.p.A., Via Lanzone 31, 20123 Milan, Italy; Chairman FINCANTIERI S.p.A. Via Genova 1, 34121 Genoa, Italy.
 
Italian citizen

 

17
 
 
 

EX-99.1 2 ex-1.htm JOINT FILING AGREEMENT ex-1.htm
Exhibit 1
 
JOINT FILING AGREEMENT
 
In accordance with Rule 13d-1(k)(1) under the Securities Exchange Act of 1934, as amended, Mr. Piero Ferrari and Exor S.p.A., a società per azioni organized under the laws of the Republic of Italy, agree to the joint filing of a statement on Schedule 13D in respect of the common shares, par value €0.01 per share, of Ferrari N.V. including any amendments thereto, further agree that this joint filing agreement be included as an exhibit to such Schedule 13D.  Each of the undersigned further agrees to be responsible for the timely filing of the Schedule 13D and any amendments thereto, and for the completeness and accuracy of the information concerning himself or itself contained therein.  This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument.
 
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of January 3, 2016.
 
 

 
   /s/ P. Ferrari
Piero Ferrari
 
 
 
Exor S.p.A.
 
By:
 /s/ John Elkann
 
Name:
John Elkann
 
Title:
Chairman & Chief Executive Officer

 
 
EX-99.2 3 ex-2.htm POWER OF ATTORNEY ex-2.htm
Exhibit 2
 
 
POWER OF ATTORNEY
 
KNOW ALL PERSONS BY THESE PRESENTS, the undersigned person hereby constitutes and appoints Alessandro Gili and Carlo Daneo, and each of them acting individually, his true and lawful attorney-in-fact and agent, with full and several power of substitution and resubstitution, in any and all capacities, to sign on his behalf any statements pursuant to Section 13 of the Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder, as amended from time to time (the “Exchange Act”) with respect to his ownership of and transactions in any securities issued by Ferrari N.V., any or all amendments thereto and joint filing agreements with respect thereto, and in each case to file the same, with all exhibits thereto and other documents in connection therewith, with the U.S. Securities and Exchange Commission, as considered necessary or advisable under such Section 13. The undersigned hereby grants unto said attorneys-in-fact and agents, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as they might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his or her substitutes, may lawfully do or cause to be done by virtue of this power of attorney and the rights and powers herein granted.
 
This power of attorney shall remain in full force and effect until the earliest to occur of (a) the undersigned being no longer required under Section 13 of the Exchange Act to maintain on file any statement with respect to the undersigned’s holdings of and transactions in securities issued by Ferrari N.V. as notified in writing by such undersigned to the foregoing attorneys-in-fact and agents and upon the filing of an amendment giving notice of the termination of such obligation, and (b) written revocation signed by the undersigned delivered to the foregoing attorneys-in-fact and agents.
 

 
Date: January 3, 2016
 

 
/s/ P. Ferrari
Piero Ferrari
 

 
 
EX-99.3 4 ex-3.htm EXOR FERRARI SHAREHOLDER AGREEMENT 12/23/15 ex-3.htm
Exhibit 3
 
Piero Ferrari

 

23 December 2015

From:
Piero Ferrari

To:
EXOR S.p.A.

Re: Acceptance of the Shareholders’ Agreement

Dear Sirs:
I refer to your letter of today’s date, setting out your proposal in respect of a shareholders’ agreement, the contents of which are reproduced in full below.


* * *

23 December 2015

From:
EXOR S.p.A.

To:
Mr. Piero Ferrari


Re: Shareholders’ Agreement


Dear Mr. Ferrari:
We refer to our meetings and conversations and have the pleasure to submit to you hereunder the following proposal of:

SHAREHOLDERS’ AGREEMENT

 
BETWEEN:

 
(1)
EXOR S.p.A., a company incorporated under the laws of Italy (“EXOR”);

 
(2)
Mr. PIERO FERRARI, an individual (“PF”).

 
(EXOR and PF, collectively, the “Parties” and, each, a “Party”).
 
 

1
 
 
 
 
 
 
WHEREAS

(A)
Ferrari N.V. is a public company (naamloze vennootschap) incorporated and existing under Dutch law, registered with the Dutch trade register under number 57991561 (the “Company”), which is the sole shareholder owning the entire share capital of Ferrari S.p.A., a joint stock company (società per azioni) incorporated and existing under Italian law (“Ferrari”), which was founded by the father of PF.

(B)
At the date hereof, the Company has issued no. 188,921,600 Common Shares and no. 170,029,450 SV Shares. The Common Shares of the Company have been registered with the U.S. Securities and Exchange Commission and are listed on the New York Stock Exchange (“NYSE”).

(C)
At the date hereof, the major shareholders of the Company are Fiat Chrysler Automobiles N.V. (“FCA”), holding 80% of the Common Shares of the Company, and PF, holding 10% of the Common Shares of the Company, while the remaining Common Shares of the Company representing 10% of the issued and outstanding Common Shares of the Company are held by public shareholders, being free float on the NYSE.

(D)
FCA intends to separate its remaining ownership interest in the Company and distribute that ownership interest to holders of its shares (including EXOR) and mandatory convertible securities (the “Separation”). As a result of the Separation, any holders of common shares and special voting shares in FCA immediately prior to the Separation, including EXOR, are eligible to receive ownership of SV Shares (in the ratio of one SV Share for each Common Share held) in FE New N.V. (“FE New”), a public company (naamloze vennootschap) incorporated and existing under Dutch law, registered with the Dutch trade register under number 64060977. Upon the Separation becoming effective, FE New will become the sole shareholder of the entire share capital of Ferrari and will be renamed “Ferrari N.V.”

(E)
Upon completion of the Separation, FCA will no longer have an ownership interest in the Company, the Company will cease to exist and it is expected that the Common Shares and SV Shares in FE New will be owned by the Parties as follows:

 
·
EXOR: approximately 23.5 percent of FE New’s share capital and approximately 33.4 percent of the Voting Interest in FE New;

 
·
PF: approximately 10 percent of FE New’s share capital and approximately 15.4 percent of the Voting Interest in FE New.
 
 

2
 
 
 
 
 
(F)
The Parties are willing to agree on certain provisions in relation to their shareholdings and investments in the Company and FE New respectively.

NOW THEREFORE having premised the above which constitutes an integral and substantial part of this shareholders’ agreement (the “Agreement”), the Parties agree and covenant as follows.

1.
DEFINITIONS

1.1
In this Agreement, in addition to the other terms defined elsewhere in this Agreement, the following terms shall have the meaning specified below.

“Affiliate” means, with respect to any specified person, any other person who directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such specified person. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have the meanings correlative of the foregoing.
“Business Day” means a day, other than a Saturday or Sunday, on which banks are open in Milan (Italy) and Amsterdam (The Netherlands) for general commercial business.

“Common Shares” means the common shares issued from time to time by the Company or FE New, respectively.

“Expert” means such investment bank of international repute and practicing in Europe jointly chosen by the Parties within 5 (five) calendar days of the notice from EXOR to PF or vice versa. If the above mentioned bank is not in a position to assist in this respect or if the Parties fail to agree on such investment bank within the above mentioned term, each Party shall submit to the other, within 5 (five) calendar days from the expiration of the above mentioned term, a list of maximum 5 (five) investment banks of international repute and practicing in Europe, listing them in decreasing order of preference. The Parties shall appoint as Expert an investment bank present on both lists, starting from the investment bank that has received in aggregate the highest ranking. If none of those investment banks are in a position to assist or if there are no investment banks present on both lists, then the investment bank to act as Expert shall be appointed by the chairman of the NBA (Nederlandse Beroepsorganisatie van Accountants - The Netherlands Institute of Chartered Accountants) upon the request either of EXOR or PF and chosen among the banks indicated by the Parties in their lists. The fees and costs of the Expert shall be borne equally by the Parties.
 
“Permitted Transferee” shall have the same meaning attributed to “Loyalty Transferee” in the Article of Association of FE New from time to time. As of the date of entry into force of this Agreement, the definition is: “(i) with respect to any shareholder that is not an individual, any Affiliate of such shareholder (including any successor of such shareholder) that is beneficially owned in substantially the same manner (including percentage) as the beneficial ownership of the transferring shareholder or the beneficiary company as part of a statutory demerger (splitsing) of such shareholder and (ii) with respect to any shareholder that is an individual, any transferee of common shares following succession or the liquidation of assets between spouses or the inheritance, inter vivos donation or other transfer to a spouse or a relative up to and including the fourth degree”. For the avoidance of doubt, the term “succession” shall include any kind of mortis causa transfer, also through will (testamento).

“SV Shares” means the special voting shares issued from time to time by the Company or FE New respectively.

“SVS T&C” means the terms and conditions of the SV Shares adopted by the Company for the first time on October 12, 2015, amended and adopted by FE New upon the Separation becoming effective and as then amended from time to time.

“Voting Interest” of a Party at a particular time shall mean the aggregate number of votes exercisable at a FE New general meeting of shareholders by such Party and its Affiliates, including votes exercisable by such Party and its Affiliates pursuant to a power of attorney, transfer of voting rights or otherwise, and excluding, for the avoidance of doubt, any double-count of direct and indirect rights in respect of the same underlying votes.

1.2
In addition to the defined terms under Clause 1.1, in this Agreement the following terms shall be interpreted in accordance with the meaning and specified below:

“successor in business” means, with respect to any company (the original company) at any particular time, any other company (the successor company) which, as the result of any amalgamation, merger, reconstruction, reorganisation, transfer or contribution of assets or other similar transaction meets all the following criteria: (i) beneficially owns the whole or substantially the whole of the undertaking, property and assets owned by the original company; (ii) carries on, as a successor to such person, the whole or substantially the whole of the business carried on by the original company; (iii) assumes by operation of law all then existing obligations of the original company; and (iv) is owned substantially by the same shareholders, quotaholders or owners of the original company without the occurrence of any change of control;
 

3
 
 
 
 
 
“transfer” means a transfer, sale, assignment, contribution or any other disposition by a person of a legal or beneficial interest, whether directly or indirectly (including without limitation a merger or de-merger, either as universal or singular successor), whether total or partial, whether for a consideration in cash or in kind or no consideration, and whether on a temporary basis or through future contracts, including by distribution to its legal or beneficial owners, pursuant to the creation of a derivative security, the right of usufruct, the grant of an option or other right, the imposition of a restriction on disposition or by operation of law, with the exclusion of any mortis causa transfer.

2.
CONDITION PRECEDENT AND COMMON SHARES OBJECT OF THIS AGREEMENT

Condition precedent

2.1
This Agreement shall enter into force subject to the condition precedent (opschortende voorwaarde) of the Separation becoming effective on 3 January 2016, i.e., prior to the First MTA Trading Date (as defined in Clause 3.3).  If for any reason the Separation does not become effective prior to the First MTA Trading Date, this Agreement shall automatically terminate and each Party shall be released in full from any and all obligations arising out hereunder.

Common Shares and SV Shares object of this Agreement

2.2
The Parties agree and acknowledge that all Common Shares and SV Shares owned by them in the Company on the date of this Agreement, and owned by them in FE New upon completion of the Separation and at any time thereafter, from time to time, under whatever mean acquired, shall be governed by this Agreement.

3.
CONSULTATION

Consultation

3.1
For the purposes of forming and exercising, to the extent possible, a common view on the items on the agenda of any general shareholders’ meeting of FE New, the Parties will consult with each other – timely, and in any case at least 24 (twenty four) hours ahead of each meeting – prior to each general shareholders’ meeting of FE New.
 
 
 

4
 
 
 
 

 
3.2
For the purposes of the consultation right and duties provided for under Clause 3.1 above, representatives of each of the Parties shall meet in order to discuss in good faith whether they have or can  find a common view as to the matters on the agenda of the immediately following general shareholders’ meeting of FE New. For the avoidance of doubt, this right of consultation shall in no way operate as, or be construed as, a veto right of PF.

FSA mandatory offer rules

3.3
The Parties acknowledge and agree that the Dutch public offer rules as laid down in the Dutch financial supervision act (the “FSA”) will as of 4 January 2016 (or the following date – in any case subsequent to the effectiveness of the Separation –  that may be set by Borsa Italiana S.p.A. in its notice of beginning of trading of the Common Shares of FE New on the Mercato Telematico Azionario organized and managed by Borsa Italiana S.p.A., hereinafter the “MTA”) i.e., the date that trading in the Common Shares of FE New starts on the MTA (the “First MTA Trading Date”), be applicable to FE New and its shareholders. As – upon the Separation becoming effective – EXOR individually, and the Parties combined, will have a Voting Interest of more than 30 percent prior to the First MTA Trading Date and EXOR individually, as well as the Parties combined, will continue to have a Voting Interest of more than 30 percent on the First MTA Trading Date, EXOR individually, and the Parties combined in light of the agreements set out in Clause 3.1, will be deemed to then have a controlling influence (overwegende zeggenschap, “Controlling Influence”) over FE New within the meaning of the FSA; the Parties agree to remain qualified as concert parties (in overleg handelende personen) (each a “Concert Party” and together, a “Concert”) as per the First MTA Trading Date. On this basis, EXOR individually and the Parties combined, as well as their ultimate controlling persons, will benefit from the exemption from the Dutch mandatory offer requirement as laid down in article 5:71 sub 1(i) of the FSA.

FSA notification duties

3.4
The Parties acknowledge and agree that as a result of the Concert, they are required under section 5.3 of the FSA to notify their shareholdings and voting interests in FE New on a combined and aggregated basis to the Dutch Financial Markets Authority (Autoriteit Financiele Markten, the “AFM”). Against this background, each Party will promptly inform the other Party after having entered into any transaction in securities in relation to FE New, and each Party will provide the other Party with details that are reasonably required for the Parties to jointly assess whether notification in accordance with section 5.3 of the FSA must be made that one or more of the applicable notification thresholds has been reached or crossed.
 
 

5
 
 
 
 

 
4.
PRE-EMPTION RIGHT IN FAVOUR OF EXOR

4.1
Without prejudice to Clause 6 (Permitted Transfers), the transfer by PF (in whole or in part) of his Common Shares in FE New to a third party shall in any event be subject to the compliance with the pre-emption right procedure (the “Pre-Emption Right Procedure”) set out hereunder.

4.2
In the event that PF intends to transfer (in whole or in part) his Common Shares in FE New or he receives a third party offer for the acquisition of all or part of his Common Shares in FE New, he shall promptly deliver to EXOR a written notice of his election to transfer such Common Shares or part thereof (the “Sale Notice”), specifying: (a) the number of Common Shares in FE New which PF intends to transfer (the “Shares for Sale”); (b) the price per Share for Sale and the other material terms and conditions of the proposed transaction, including details on the third party transferee; and (c) the term (not to exceed 60 (sixty) Business Days) within which PF expects to complete the transfer of the Shares for Sale constituting the subject matter of the Sale Notice.

4.3
By written notice given to PF (the “Pre-emption Notice”) within 10 (ten) Business Days after receipt of the Sale Notice, EXOR shall have the right (the “Pre-emption Right”) to purchase all (but not less than all) of the Shares for Sale constituting the subject matter of such Sale Notice in consideration of the price specified in the Sale Notice, provided that such Pre-emption Notice complies with each of the following conditions:

 
4.3.1
the purchase and sale of the Shares for Sale is to be completed, subject to any authorisations under any applicable law, at a closing to be held in the European Union at the place elected by PF and on the 5th (fifth) Business Day following receipt by PF of the Pre-emption Notice or following 5 (five) Business Days from the determination of the fair market value in the case of Clause 4.7 below;

 
4.3.2
the offered price is payable in cash in one instalment simultaneously with the occurrence of the closing.

4.4
In the event that a Pre-emption Notice is not given in accordance with Clause 4.3 above, EXOR will be deemed to have forfeited its Pre-emption Right in respect of the Shares for Sale constituting the subject matter of the relevant Sale Notice and PF will be free to transfer such Shares for Sale to the third party identified in the Sale Notice without any further restriction, upon terms and conditions not less favourable than those set out in the Sale Notice. It being understood that, in case no Pre-emption Notice is given or the purchase is waived by EXOR, if the transfer of the Shares for Sale constituting the subject matter of any given Sale Notice is not completed within the term set out therein, PF may not transfer such Shares for Sale or any part thereof without complying again with the Pre-emption Right Procedure of this Clause 4.
 
 

6
 
 
 
 

4.5
If the Pre-emption Notice is validly given by EXOR, the purchase and sale of the Shares for Sale constituting the subject matter of such notice shall take place at the price set out in the Sale Notice at a closing to be held on a date and in a place determined in compliance with Clause 4.3.1 above, all in accordance with the following provisions:

 
4.5.1
PF shall represent and warrant only to have good and marketable title to the Shares for Sale, free and clear of any encumbrances, and that he has the full right, power and authority to sell, assign, transfer and deliver such Common Shares;

 
4.5.2
the Parties shall execute and exchange any instrument (including irrevocable instructions to select an intermediary for block transfers or local equivalent transfers for material stakes of listed instruments) as it may be necessary under applicable law to transfer to the other Party full and marketable title to such Common Shares; and

 
4.5.3
EXOR shall pay the offered price and the costs and expenses relating to the transfer of the Shares for Sale (but excluding eventual fees of professional or advisers of PF which shall be borne by PF), through wire transfer in immediately available funds.

4.6
If under the Sale Notice PF intends to transfer whole or part of the Shares for Sale without consideration, EXOR shall be entitled to exercise its pre-emption right at a price equal to the average of the closing prices of the Common Shares of FE New on the NYSE - so long as the Common Shares of FE New are listed on NYSE, or other regulated stock exchange market on which the Common Shares of FE New are listed if such Common Shares cease to be listed on the NYSE - during the 30 (thirty) day period prior to the date of the Sale Notice (the “Market Price”).

4.7
If under the Sale Notice the consideration is not entirely constituted of cash, PF shall have the obligation to include in the Sale Notice an overall cash consideration related to Shares for Sale to be paid by EXOR in case of exercise of the Pre-Emption Right. If EXOR disagrees with the cash consideration provided for by the Sale Notice, EXOR shall be entitled to request in the Pre-emption Notice that the fair market value of such instruments or shares offered to PF is determined by the Expert which Expert shall determine the fair market value of the instruments or shares within 30 (thirty) Business Days of its appointment. The Parties shall then be obliged to perform the purchase and sale at the price determined by the Expert; provided, however, that if the price of the Shares for Sale determined by the Expert is lower than 10% (ten percent) of the price indicated in the Sale Notice or is lower than the Market Price, then PF shall have the right to withdraw from the sale of the Shares for Sale and hold such shares; provided, further, however, that if following any withdrawal as contemplated above, PF once again intends to transfer (in whole or in part) Common Shares in FE New, PF shall be required to comply with the Pre-emption Right Procedure of this Clause 4 .
 
 

7
 
 
 
 

 
4.8
It is hereby understood that if PF is willing to transfer his Common Shares in FE New or a part thereof through a market sale (also through intermediaries in an accelerated book-building offering or other similar transactions), with no identification of a third party transferee, the Pre-emption Right shall in any case apply in favour of EXOR and the price for the Shares for Sale shall be equal to the Market Price.

5.
RIGHT OF FIRST OFFER OF PF

5.1
Without prejudice to Clause 6 (Permitted Transfers), the transfer to a third party of the Common Shares owned by EXOR in FE New shall in any event be subject to a right of first offer in favour of PF pursuant to the provisions set out below (the “Right of First Offer”).

5.2
In the event EXOR intends to transfer (in whole or in part) its Common Shares in FE New to a third party, either solicited or unsolicited, it shall first give to PF a written notice in writing (the “ROFO Transfer Notice”) of the number of Common Shares in FE New to be transferred (the “ROFO Transfer Shares”). On receipt of the ROFO Transfer Notice, PF shall have the right to make a binding, unconditional (save in respect of authorisations, that any applicable law requires to be mandatorily filed and obtained) and irrevocable all cash offer (the “ROFO Offer”) for the purchase of the ROFO Transfer Shares by delivering to EXOR a written notice within and no later than 30 (thirty) Business Days (the “ROFO Offering Period”) from receipt of the ROFO Transfer Notice.

5.3
The ROFO Offer shall indicate:

 
5.3.1
the price in cash for the acquisition of the ROFO Transfer Shares that shall be paid in immediately available funds on the date such acquisition is completed;

 
5.3.2
a validity period, during which the ROFO Offer will remain irrevocable and binding of at least 1 (one) month from the date of the receipt by EXOR of the ROFO Offer (the “Validity Period”);

 
5.3.3
the expected closing date of the transfer of the ROFO Transfer Shares to PF; and

 
5.3.4
the other main terms and conditions of the ROFO Offer.

5.4
Upon the receipt of the ROFO Offer and until the expiration of the Validity Period EXOR shall have the right to communicate to PF its acceptance of the ROFO Offer (the “ROFO Acceptance”).
 
 

8
 
 
 
 

5.5
In case of ROFO Acceptance, the Parties shall consummate the sale, subject to any authorisations under any applicable law, within 5 (five) Business Days from the receipt by PF of the ROFO Acceptance at a closing to be held in the European Union at the place elected by EXOR, all in accordance with the following provisions:

 
5.5.1
EXOR shall represent and warrant only to have good and marketable title to the ROFO Transfer Shares, free and clear of any encumbrances, and that it has the full right, power and authority to sell, assign, transfer and deliver such ROFO Transfer Shares;

 
5.5.2
the Parties shall execute and exchange any instrument (including irrevocable instructions to select an intermediary for block transfers or local equivalent transfers for material stakes of listed instruments) as it may be necessary under applicable law to transfer to the other Party full and marketable title to the ROFO Transfer Shares; and

 
5.5.3
PF shall pay the price in cash for the acquisition of the ROFO Transfer Shares and all the costs and expenses relating to the transfer of the ROFO Transfer Shares (but excluding eventual fees of professional or advisers of EXOR which shall be borne by EXOR), through wire transfer in immediately available funds.

5.6
If EXOR does not accept the ROFO Offer within the expiration of the Validity Period (the “Refusal”; it being understood and agreed that the failure to give any response within the expiration of the Validity Period shall constitute a Refusal), EXOR shall be entitled to pursue the transfer of the ROFO Transfer Shares to any third party; provided, however, that the transfer of the ROFO Transfer Shares in the period expiring 2 (two) months after the expiration of the Validity Period (the “Reference Period”) to a person other than PF can be completed only for a price per share higher than the price indicated in the ROFO Offer; and provided further, however, that if the transfer of the ROFO Transfer Shares does not take place within such Reference Period, then if EXOR intends to sell all or part of its Common Shares, it shall send a new ROFO Transfer Notice pursuant to the terms and conditions as set forth above.

5.7
In case no ROFO Offer is submitted within the expiration of the ROFO Offering Period, EXOR shall be free to transfer the ROFO Transfer Shares at any price per share; provided, however, that if the transfer of the ROFO Transfer Shares does not take place within 4 (four) months from the expiration date of the ROFO Offering Period, then if EXOR intends to sell all or part of its Common Shares in FE New, it shall send a new ROFO Transfer Notice pursuant to the terms and conditions as set forth above.
 
 

9
 
 
 
 
 
SV Shares

5.8
The Parties acknowledge and agree that the transfer of Common Shares in FE New will imply the transfer to FE New of a similar number of SV Shares in FE New, such only and exclusively in accordance with the SVS T&C and that nothing in this Agreement shall be interpreted as purporting the transfer of any SV Shares in addition to Common Shares except as allowed or consented under the SVS T&C.

6.
PERMITTED TRANSFERS

6.1
The Parties agree that the provisions of Clause 4 (Pre-emption right in favour of EXOR) and Clause 5 (Right of first Offer of PF) shall not apply, and that therefore the Common Shares in FE New are freely transferable, in case of transfers of Common Shares of FE New:

 
6.1.1
with respect to any Party, to a Permitted Transferee of any Party;

 
6.1.2
in addition to Clause 6.1.1, with respect to EXOR, (i) to any Affiliate of Giovanni Agnelli e C. S.a.p.az., (ii) to a successor in business of Giovanni Agnelli e C. S.a.p.az. and/ or (iii) to any Affiliate of a successor in business of Giovanni Agnelli e C. S.a.p.az.; and

 
6.1.3
in addition to Clause 6.1.1, with respect to any Party that is an individual, to an entity wholly owned and controlled by that same Party.

6.2
Any Party shall, if so requested by the other Party hereto, provide reasonable information to the requesting Party to evidence that Clause 6.1 above is fully complied with reference to the person or entity to which the Common Shares in FE New are to be transferred in compliance with the provisions of this Clause 6 (Permitted Transfers).

6.3
The Parties agree that the Party that has transferred the Common Shares in FE New pursuant to Clause 6.1 above (other than for mortis causa transfers):

 
6.3.1
shall remain jointly and severally liable with the transferee that has acquired the Common Shares in FE New; and

 
6.3.2
shall procure that the entity to which the Common Shares in FE New have been transferred pursuant to Clause 6.1 above does not lose its status as allowed thereunder without having previously transferred its Common Shares in FE New back to the original executing Party of this Agreement or to another entity having the status allowed by Clause 6.1 above.
 
 

10
 
 
 
 

 
6.4
All permitted transferees of the Common Shares in FE New under this Clause 6 (Permitted Transfers) shall be deemed to be a Party to this Agreement and shall be bound to it and assume all rights and obligations of the original Parties. To this purpose, the original Parties shall ensure that each permitted transferee shall execute a contractual instrument of adherence to this Agreement.

6.5
In addition to Clause 6.1, the provisions of Clause 4 (Pre-emption right in favour of EXOR) and Clause 5 (Right of first offer of PF) shall not apply in relation to, and PF shall be free and allowed to carry out, market sales to third parties of his Common Shares in FE New which in the aggregate do not exceed, during the whole period of validity of this Agreement, 0.5 percent of the number of Common Shares in FE New owned by PF upon the Separation becoming effective (the “PF Initial Participation”); such faculty shall apply on a revolving basis within the above mentioned limit of 0.5 percent of the PF Initial Participation also if, from time to time through repurchases of Common Shares of FE New on the market, PF acquires back the whole or a portion of his original holding of Common Shares in FE New.
 
Notwithstanding the above, it is agreed that in case (i) PF intends to transfer all the Common Shares in FE New he owns at any time and (ii) in occasion of such transfer EXOR intends to exercise its Pre-emption Right, PF will remain obliged to serve to EXOR at least a number of Common Shares equal to (x) the PF Initial Participation less (y) the Common Shares in FE New of PF eventually previously acquired by EXOR pursuant to the Pre-emption Right and/or less such Common Shares of PF in FE New for which EXOR has forfeited or in any case has not exercised its Pre-emption Right pursuant to Clause 4.4 above; accordingly if PF at any such time does not hold a sufficient number of Common Shares in FE New to comply with the above obligation, he shall purchase (on the market or from third parties) those Common Shares in FE New necessary to comply with the above obligation.

6.6
In addition to Clause 6.1 and Clause 6.5, each Party shall also have the right to:

 
6.6.1
grant pledges or similar encumbrances to any bank, financial institution or other third party over the Common Shares in FE New owned by it on the condition that, save for events of default or acceleration under the relevant contractual documentation, the Party maintains the voting rights related to such Common Shares; and

 
6.6.2
carry out other derivative transactions having a short term and not implying a change in the beneficial ownership of the Common Shares in FE New.
 
 

11
 
 
 
 

 
7.
TERM

7.1
This Agreement shall enter into force on the effective date of the Separation and shall remain in full force and effect until the 5th (fifth) anniversary of the effective date of the Separation (the “Initial Term”). If neither of the Parties serves on the other a written notice of termination of this Agreement within 6 (six) months before the end of the Initial Term, then this Agreement shall be renewed automatically for another 5 (five) year) period.

7.2
This Agreement shall terminate and cease to have any effect as a result of the transfer of all the Common Shares of FE New owned by any of the Parties to a third party (different from a permitted transferee as identified Clause 6 (Permitted Transfers)) in compliance with the provisions of this Agreement.

8.
BEST EFFORT PROVISION

8.1
As long as Ferrari will exist as a separate company from FE New, in the event that during the term of this Agreement a transaction whereby a direct sale by FE New of all its shares in Ferrari to a third party is performed, in the context of such transaction the Parties will discuss in good faith whether there could be the possibility for PF to return to be a shareholder of Ferrari so to maintain family continuity in this investment and – while EXOR cannot assume any binding obligation in this respect – it will use its best endeavours to assist PF in studying technical solutions through which this could happen. It remains understood and agreed that failure to find a solution (which will involve also the third purchaser) shall not in any way limit, delay or impede the timely execution of the sale.

9.
CONFIDENTIALITY

9.1
The Parties shall in all respects keep confidential and not at any time disclose or make known in any other way to anyone whomsoever or use for its own or any other person’s benefit or to the detriment of the other Party any information (whether oral or recorded in any medium) relating to the business, financial or other affairs (including future plans) of the Parties, provided that:

 
9.1.1
such obligation shall not apply to information which becomes generally known (other than through a breach of this Clause) or is known by a Party independent of this relationship;
 
 

12
 
 
 
 

 
 
9.1.2
each Party shall be entitled at all times to disclose such information as may be required by law or by any competent judicial or regulatory authority or by any recognized stock exchange authority (provided that, so far as practicable, such Party shall consult with the other Party prior to making such disclosure);

 
9.1.3
this Agreement may be disclosed, in abstract or in full, in the prospectus for the listing of the Common Shares of FE New on the MTA following the Separation, and in any other document filed with authorities in connection therewith; and

 
9.1.4
each Party shall be entitled to disclose to its officers, employees, agents or advisers such information as may be necessary to enable them to carry out their duties (conditional upon any such person being informed of the confidential nature of such information and agreeing to keep such information confidential for as long as it is obliged to do so in accordance with this Clause).

10.
COSTS AND EXPENSES

Each of the Parties shall bear its own expenses that may arise out of the preparation, execution, and implementation of this Agreement.

11.
GENERAL

Variations and waivers

11.1
No variation of this Agreement shall be effective unless made in writing signed by or on behalf of all the Parties and expressed to be such a variation.

11.2
No failure or delay or time or indulgence given in exercising any remedy or right under or in relation to this Agreement shall operate as a waiver of the same nor shall any single or partial exercise of any remedy or right preclude any further exercise of the same or the exercise of any other remedy or right.

Severability

11.3
The invalidity of any provision of this Agreement shall not imply the invalidity of the entire Agreement, which shall remain in full force and effect, provided that the Parties undertake to substitute the invalid provisions with new provisions having, to the extent possible, an equivalent meaning.
 
 

13
 
 
 
 
 

12.
NOTICES

Form of Notice

12.1
Any notice, consent, request, demand, approval or other communication to be given or made under or in connection with this Agreement (each a “Notice” for the purposes of this Clause) shall be in English, in writing and signed by or on behalf of the person giving it.

Method of service

12.2
Service of a Notice must be effected by one of the following methods:

 
12.2.1
by hand or by prepaid post through registered letter with receipt of return and shall be deemed served at the day indicated in the relevant receipt of delivery; or

 
12.2.2
by email or fax transmission and shall be deemed served on dispatch provided that a receipt indicating complete transmission of the Notice is obtained by the sender.

13.
APPLICABLE LAW AND JURISDICTION

13.1
This Agreement is governed by and must be interpreted according to the laws of The Netherlands.

13.2
Any disputes arising out of or in connection with this Agreement, including regarding the existence or validity of this Agreement, and any non-contractual obligations arising out of or in connection with this Agreement, are subject to the exclusive jurisdiction of the competent court in Amsterdam, The Netherlands, without prejudice to the right of appeal and appeal to the Supreme Court.

***
 

14
 
 
 
 

 
If you agree with the above, would you please confirm in writing to us your agreement with our proposal, reproducing the text of this letter, initialing each page and undersigning it in token of your acceptance.
 
 
Yours sincerely,
 
EXOR S.p.A.
 
/s/ John Elkann
Chairman & Chief Executive Officer
 
 
 
* * *
 
I hereby confirm my full, irrevocable and unconditional acceptance of your proposal above.
 
Yours sincerely,
 
Piero Ferrari
 
/s/ Piero Ferrari
 
 
 
 
 15
EX-99.4 5 ex-4.htm LOCK-UP LETTER AGREEMENT 10/12/15 ex-4.htm
Exhibit 4
 
October 12, 2015


UBS Securities LLC
1285 Avenue of the Americas
 
New York, NY 10019

 
Merrill Lynch, Pierce, Fenner & Smith
 
Incorporated
One Bryant Park
New York, New York  10036

As Representatives of
the several Underwriters listed in
Schedule 1 to the Underwriting
Agreement referred to below

 
Re:           Ferrari N.V. --- Initial Public Offering
 
Ladies and Gentlemen:
 
The undersigned understands that you, as Representatives of the several Underwriters, propose to enter into (a) an underwriting agreement (the “Underwriting Agreement”) with Ferrari N.V., a public company with limited liability incorporated under the laws of the Netherlands (the “Company”), providing for the initial public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement (the “Underwriters”), of the common shares, nominal value € 0.01 per share, of the Company (the “Common Shares”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement.
 
In consideration of the Underwriters’ agreement to purchase and make the Public Offering of the Common Shares , and for other good and valuable consideration receipt of which is hereby acknowledged, the undersigned hereby agrees that, without the prior written consent of the Representatives, the undersigned will not, during the period (the “Lock-Up Period”) ending 90 days after the date of the prospectus relating to the Public Offering (the “Prospectus”), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any Common Shares or any securities convertible into or exercisable or exchangeable for Common Shares (including without limitation, Common Shares or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant), or publicly disclose the intention to make any offer, sale, pledge or disposition, (2) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Common Shares or such other securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Shares or such other securities, in cash or otherwise or (3) make any demand for or exercise any right with respect to the registration of any Common Shares or any security convertible into or exercisable or exchangeable for Common Shares, in each case other than (A) (i) transfers of Common Shares as a bona fide gift or gifts, (ii) if the undersigned is a natural person, transfers of Common Shares or any securities convertible into or exercisable or exchangeable for Common Shares to any beneficiary of the undersigned pursuant to a will or other testamentary document or applicable laws of descent, (iii) if the undersigned is a natural person, transfers of Common Shares to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, and (iv) if the undersigned is a natural person, transfers of Common Shares to any partnership or limited liability company controlled by the undersigned or the immediate family of the undersigned and (B) distributions of Common Shares to members or shareholders of the undersigned; provided that in the case of any such transfer or distribution pursuant to clause (A) or (B), each donee, trustee, transferee or distributee shall execute and deliver to the Representatives a lock-up letter in the form of this paragraph; and provided, further, that in the case of any such permitted transfer or distribution, no filing by any party (donor, donee, trustee, transferor or transferee) under the Securities Exchange Act of 1934, as amended, or other public announcement shall be required or shall be made voluntarily in connection with such transfer or distribution.  For purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, marriage, domestic partnership or adoption, not more remote than first cousin.
 
If the undersigned is an officer or director of the Company, (1) the Representatives on behalf of the Underwriters agree that, at least three business days before the effective date of any release or waiver of the foregoing restrictions in connection with a transfer of Common Shares, the Representatives on behalf of the Underwriters will notify the Company of the impending release or waiver, and (2) the Company has agreed in the Underwriting Agreement to announce the impending release or waiver by press release through a major news service at least two business days before the effective date of the release or waiver.  Any release or waiver granted by the Representatives on behalf of the Underwriters hereunder to any such officer or director shall only be effective two business days after the publication date of such press release.  The provisions of this paragraph will not apply if (A) the release or waiver is effected solely to permit a transfer not for consideration and (B) the transferee has agreed in writing to be bound by the same terms described in this Letter Agreement to the extent and for the duration that such terms remain in effect at the time of the transfer.
 
In furtherance of the foregoing, the Company, and any duly appointed transfer agent for the registration or transfer of the securities described herein, are hereby authorized to decline to make any transfer of securities if such transfer would constitute a violation or breach of this Letter Agreement.
 
The undersigned hereby represents and warrants that the undersigned has full power and authority to enter into this Letter Agreement.  All authority herein conferred or agreed to be conferred and any obligations of the undersigned shall be binding upon the successors, assigns, heirs or personal representatives of the undersigned.
 
The undersigned understands that, if the Underwriting Agreement does not become effective, or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of the Common Shares to be sold thereunder, the undersigned shall be released from, all obligations under this Letter Agreement.  The undersigned understands that the Underwriters are entering into the Underwriting Agreement and proceeding with the Public Offering in reliance upon this Letter Agreement.
 

 
 
 


 

 
This Letter Agreement and any claim, controversy or dispute arising under or related to this Letter Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflict of laws principles thereof.
 
Very truly yours,
 
/s/ PIERO FERRARI
Name: Piero Ferrari

 

 

 

 

 

 

 

 

 

 

 

 

 
Signature page to the Lock-Up Agreement
 
 
EX-99.5 6 ex-5.htm LOCK-UP LETTER AGREEMENT 10/12/15 ex-5.htm
Exhibit 5

 
 
October 12 , 2015


UBS Securities LLC
1285 Avenue of the Americas
    New York, NY 10019
 
Merrill Lynch, Pierce, Fenner & Smith
    Incorporated
One Bryant Park
New York, New York  10036

As Representatives of
the several Underwriters listed in
Schedule 1 to the Underwriting
Agreement referred to below

 
Re:           Ferrari N.V. --- Initial Public Offering
 
Ladies and Gentlemen:
 
The undersigned understands that you, as Representatives of the several Underwriters, propose to enter into (a) an underwriting agreement (the “Underwriting Agreement”) with Ferrari N.V., a public company with limited liability incorporated under the laws of the Netherlands (the “Company”), providing for the initial public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement (the “Underwriters”), of the common shares, nominal value € 0.01 per share, of the Company (the “Common Shares”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement.
 
In consideration of the Underwriters’ agreement to purchase and make the Public Offering of the Common Shares , and for other good and valuable consideration receipt of which is hereby acknowledged, the undersigned hereby agrees that, without the prior written consent of the Representatives, the undersigned will not, during the period (the “Lock-Up Period”) ending 90 days after the date of the prospectus relating to the Public Offering (the “Prospectus”), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any Common Shares or any securities convertible into or exercisable or exchangeable for Common Shares (including without limitation, Common Shares or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant), or publicly disclose the intention to make any offer, sale, pledge or disposition, (2) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Common Shares or such other securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Shares or such other securities, in cash or otherwise or (3) make any demand for or exercise any right with respect to the registration of any Common Shares or any security convertible into or exercisable or exchangeable for Common Shares, in each case other than (A) (i) transfers of Common Shares as a bona fide gift or gifts, (ii) if the undersigned is a natural person, transfers of Common Shares or any securities convertible into or exercisable or exchangeable for Common Shares to any beneficiary of the undersigned pursuant to a will or other testamentary document or applicable laws of descent, (iii) if the undersigned is a natural person, transfers of Common Shares to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, and (iv) if the undersigned is a natural person, transfers of Common Shares to any partnership or limited liability company controlled by the undersigned or the immediate family of the undersigned and (B) distributions of Common Shares to members or shareholders of the undersigned; provided that in the case of any such transfer or distribution pursuant to clause (A) or (B), each donee, trustee, transferee or distributee shall execute and deliver to the Representatives a lock-up letter in the form of this paragraph; and provided, further, that in the case of any such permitted transfer or distribution, no filing by any party (donor, donee, trustee, transferor or transferee) under the Securities Exchange Act of 1934, as amended, or other public announcement shall be required or shall be made voluntarily in connection with such transfer or distribution.  For purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, marriage, domestic partnership or adoption, not more remote than first cousin.
 
If the undersigned is an officer or director of the Company, (1) the Representatives on behalf of the Underwriters agree that, at least three business days before the effective date of any release or waiver of the foregoing restrictions in connection with a transfer of Common Shares, the Representatives on behalf of the Underwriters will notify the Company of the impending release or waiver, and (2) the Company has agreed in the Underwriting Agreement to announce the impending release or waiver by press release through a major news service at least two business days before the effective date of the release or waiver.  Any release or waiver granted by the Representatives on behalf of the Underwriters hereunder to any such officer or director shall only be effective two business days after the publication date of such press release.  The provisions of this paragraph will not apply if (A) the release or waiver is effected solely to permit a transfer not for consideration and (B) the transferee has agreed in writing to be bound by the same terms described in this Letter Agreement to the extent and for the duration that such terms remain in effect at the time of the transfer.
 
In furtherance of the foregoing, the Company, and any duly appointed transfer agent for the registration or transfer of the securities described herein, are hereby authorized to decline to make any transfer of securities if such transfer would constitute a violation or breach of this Letter Agreement.
 
The undersigned hereby represents and warrants that the undersigned has full power and authority to enter into this Letter Agreement.  All authority herein conferred or agreed to be conferred and any obligations of the undersigned shall be binding upon the successors, assigns, heirs or personal representatives of the undersigned.
 
The undersigned understands that, if the Underwriting Agreement does not become effective, or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of the Common Shares to be sold thereunder, the undersigned shall be released from, all obligations under this Letter Agreement.  The undersigned understands that the Underwriters are entering into the Underwriting Agreement and proceeding with the Public Offering in reliance upon this Letter Agreement.
 

 
 
 


 

 
This Letter Agreement and any claim, controversy or dispute arising under or related to this Letter Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflict of laws principles thereof.
 
Very truly yours,
 
/s/ Sergio Marchionne
Name: Sergio Marchionne

 

 

 

 

 

 

 

 

 

 

 

 
Signature page to the Lock-Up Agreement