Shareholders' Agreement
MAMORE PARTICIPACOES S.A.
SHAREHOLDERS' AGREEMENT
This shareholders' agreement (the "AGREEMENT") is entered into in the
Capital City of the State of Sao Paulo as of 20 of June of 2000, by and among:
FIBERCORE LTDA., a company duly organized and validly existing under the
laws of Brazil, with its head office in the city of Sao Paulo, State of Sao
Paulo, at Xxx Xxxxxx Xxxxxx, 000, enrolled with CNPJ under No.
03.767.078/0001-24, herein represented by its duly authorized representative
(hereinafter referred to as "FCI");
XXXXX X.X. - EMPREENDIMENTOS E PARTICIPACOES, a company duly organized and
validly existing under the laws of Brazil, with its head office at Xxxxxxx
Xxxxxxxxxxx Xxxxxx, 0000, Xxxxxxxx Xxxxxxxxxx, Xxxxxxxxxx, enrolled with CNPJ
under No. 17.835.026/0001-52, herein represented by its duly authorized
representative (hereinafter referred to as "Algar" and, together with FCI, the
"Shareholders");
and, as intervening parties,
FIBERCORE, INC., a company duly organized and validly existing under the
laws of the state of Nevada, Unites States of America, with its head office at
000, Xxxxxxxxx Xxxx, Xxxxxxxx, XX, herein represented by its duly authorized
representative (hereinafter referred to as "FiberCore"); and
MAMORE PARTICIPACOES S.A., a corporation duly organized and validly
existing under the laws of the Federal Republic of Brazil, Federal Republic of
Brazil, with head offices in the City of Uberlandia, State of Minas Gerais, at
Xxxxxxx Xxxxxxxxxxx Xxxxxx, 0000, cj. 07, Sala A, Distrito Industrial, enrolled
with CNPJ under No. 03.509.491/0001-99, herein represented by its duly
authorized representative (hereinafter referred to as the "Company");
XTAL FIBRAS OPTICAS S.A., a company duly organized and validly existing
under the laws of Brazil, with its head office at Xxxxxxx Xxxxxxxxxxx Xxxxxx,
0000, Xxxxxxxx Xxxxxxxxxx, Xxxxxxxxxx, enrolled with CNPJ under No.
71.340.707/0001-95, herein represented by its duly authorized representative
(hereinafter referred to as "Xtal");
WHEREAS
(i) on June 20, 2000, the parties have executed an Investment Agreement
(the "Investment Agreement"), which provide for the main terms and conditions
pursuant to which FCI shall become a shareholder of the Company;
(ii) on the date hereof FCI subscribed to and acquired 5.816.254 class B
common shares of the Company, representing on the due date hereof 90% (ninety
per cent) of the Company's total capital.
(iii) on the date hereof, the subscribed capital of the Company is R$
6,488,612.00, represented by 6.488.612 issued and outstanding common shares
5.839.748 class B common shares and 648.864 class A common shares, legally owned
by and recorded on the Company's books as follows:
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SHAREHOLDER COMMON SHARES COMMON SHARES (%) VOTING/TOTAL
CLASS A CLASS B
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FCI - 5.839.748 90%
Algar 648.864 - 10%
Total 648.864 5.839.748 100%
(iv) it is a covenant of the Shareholders undertaken under the Investment
Agreement that the parties hereto enter into this Agreement, adopt the Bylaws
and perform their respective obligations established hereunder;
(v) the Company is, on the date hereof, the sole shareholder of Xtal; and
(vi) the Shareholders wish to regulate their relationship as shareholders
of the Company in more detail, in accordance with the terms and conditions
established in the Investment Agreement, by establishing rules with regards to
the exercise of voting rights and transfer of their shares in the Company, as
well as the control, voting rights and transfer of Company's shares in
connection with Xtal, and other matters in relation to such terms and
conditions.
NOW THEREFORE, the Shareholders have decided to execute this Agreement,
pursuant to the terms and for the purposes of Article 118 of Law no. 6.404, of
12.15.76, and hereby agree on the following terms and conditions.
ARTICLE 1 - DEFINITIONS
When used in this Agreement, the following terms shall have the following
meanings:
"AAA" shall mean the American Arbitration Association;
"AAA Rules" shall mean the rules of the American Arbitration Association
in effect at the time an arbitration proceeding relating to any Dispute
hereunder is commenced;
"Agreement" shall mean this agreement and all schedules attached hereto
and any and all amendments made hereto by written agreement among the parties
hereto;
"Algar" shall have the meaning ascribed thereto in the preamble hereof;
"Board of Directors of the Company" and "Member of the Board of Directors
of the Company" shall mean respectively the Conselho de Administracao of the
Company and each person who is, from time to time, elected as members of its
Board of Directors;
"Board of Directors of Xtal" and "Member of the Board of Directors of
Xtal" shall mean respectively the Conselho de Administracao of Xtal and each
person who is, from time to time, elected as members of its Board of Directors
(hereinafter referred to as, together with "Board of Directors of the Company",
the "Boards of Directors");
"Board of Officers of the Company" and "Member of the Board of Officers of
the Company", or simply "Officer of the Company", shall mean respectively the
Diretoria of the Company and each person who is, from time to time, elected as a
member of its Board of Officers;
"Board of Officers of Xtal" and "Member of the Board of Officers of Xtal",
or simply "Officer of Xtal" shall mean respectively the Conselho de
Administracao of Xtal and each person who is, from time to time, elected as
members of its Board of Officers (hereinafter referred to as, together with
"Board of Officers of the Company", the "Boards of Officers");
"Brazil" shall mean the Federative Republic of Brazil;
"Brazilian Corporation Law" shall mean Law no. 6,404 dated December 15,
1976, as amended from time to time;
"Bylaws" shall mean the bylaws of the Company and Xtal approved on the
date hereof, the forms of which are attached hereto as Exhibits I and II,
respectively, as amended from time to time;
"Call Notice" shall have the meaning ascribed thereto in Section 6.3(b)
hereof;
"Call Option" shall have the meaning ascribed thereto in Section 6.3(a)
hereof;
"Closing Date" shall mean June 20, 2000;
"Company" shall have the meaning ascribed thereto in the preamble hereof;
"Control" shall have the meaning set forth under the Brazilian Corporation
Law. "Controls" and "Controlled" shall have similar meanings;
"Dispute" shall mean any dispute, claim, question or difference arising
with respect to or under this Agreement or the performance, breach, termination
or validity of this Agreement;
"FCI" shall have the meaning ascribed thereto in the preamble hereof;
"FCI/Fibercore Call Notice" shall have the meaning ascribed thereto in
Section 6.5(b) hereof;
"FCI/Fibercore Call Option" shall have the meaning ascribed thereto in
Section 6.5(a) hereof;
"Indebtedness" means with respect to any Person (determined without
duplication), (a) all indebtedness of such Person for borrowed money; (b) all
obligations of such Person for the deferred purchase price of property or
services (other than trade payables incurred in the ordinary course of such
Person's business, but only if and for so long as the same remain payable on
customary trade terms, and accrued expenses incurred in the ordinary course of
business); (c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments; (d) all obligations of such Person
created or arising under any conditional sale or other title retention agreement
with respect to property acquired by such Person (even though the rights and
remedies of the seller or the lender under such agreement in the event of
default are limited to repossession or sale of such property); (e) all capital
lease obligations of such Person; (f) all obligations, contingent or otherwise,
of such Person in respect of acceptances, letters of credit or similar
extensions of credit (excluding trade payables to the extent excluded from item
(b) above); (g) all obligations of such Person to redeem, retire, defease or
otherwise make any payment in respect of shares of capital stock of such Person;
(h) all Indebtedness of other Persons referred to in items (a) through (g) above
or item (i) below guaranteed by such Person; and (i) all Indebtedness referred
to in items (a) through (h) above secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any lien on property or revenues of such Person even though such Person has not
assumed or become liable for the payment of such Indebtedness, provided, that
the amount of Indebtedness referred to in this item (i) shall be deemed, at any
time, to be the lesser of: (1) the current fair market value of the property
encumbered by such lien at such time and (2) the amount of the Indebtedness so
secured.;
"Investment Agreement" shall have the meaning ascribed thereto in the
preamble hereof.
"Member" shall mean an individual duly appointed to serve upon the Boards
of Directors (or upon the Boards of Officers, as the case may be), under the
requirements of this Agreement.
"Non-Selling Shareholder" shall have the meaning ascribed thereto in
Section 6.2(b) hereof;
"Notice of Dispute" shall have the meaning ascribed thereto in Section
10.1(a) hereof;
"Offer" shall have the meaning ascribed thereto in Section 6.2(a) hereof;
"Offered Shares" shall have the meaning ascribed thereto in Section 6.2(a)
hereof;
"Person" shall mean an individual, company, corporation, trust,
association, partnership, fund, joint venture or other legal entity, or a
Governmental Authority;
"Put Notice" shall have the meaning ascribed thereto in Section 6.4(b)
hereof;
"Put Option" shall have the meaning ascribed thereto in Section 6.4(a)
hereof;
"Selling Shareholder" shall have the meaning ascribed thereto in Section
6.2(a) hereof;
"Shareholder" shall have the meaning ascribed thereto in the preamble
hereof;
"Shares" shall mean all shares in the capital of the Company issued on the
date hereof or at any time thereafter (including all rights inherent therein),
owned by the Shareholders on the date hereof, as described above and any and all
shares issued by the Company which may be owned by the Shareholders in the
future, resulting from subscription, acquisition, bonus distribution, split of
shares or otherwise, all of which shall be bound to this Agreement for all
purposes and effects;
"US dollars" means United States dollars;
"US$ 10,000,000 Promissory Note" shall mean the promissory note issued by
Fibercore to Algar on June 20, 2000 in the principal amount of US$ 10,000,000
maturing on December 31, 2000, pursuant to the Loan Agreement entered into
between Fibercore and Algar, dated June 20, 2000;
"US$ 10,000,000 Promissory Note Payment Date" shall mean the date on which
all amounts due and payable under the US$ 10,000,000 Promissory Note are paid in
full by Fibercore to Algar;
"Xtal" shall have the meaning ascribed thereto in the preamble hereof; and
"Xtal Shares" shall mean all shares in the capital of Xtal issued on the
date hereof or at any time thereafter (including all rights inherent therein),
owned by the Company on the date hereof and any and all shares issued by Xtal
which may be owned by the Company and third parties in the future, resulting
from subscription, acquisition, bonus distribution, split of shares or
otherwise, all of which shall be bound to this Agreement for all purposes and
effects.
ARTICLE 2
SHAREHOLDERS COVENANTS/AGREEMENT ON VOTING RIGHTS
2.1. Exercise of Voting Rights. Each of the Shareholders covenant and
agree that it shall vote and cause its representatives in each Board of
Directors to vote in order to accomplish and give effect to all the terms and
conditions of this Agreement in relation to the Company and Xtal and it shall
otherwise act in accordance with the terms and conditions hereof.
2.2. Covenants by the Company. The Company consents to the terms of this
Agreement and hereby covenants with each of the Shareholders that it will at all
times during the term of this Agreement be governed by the terms and provisions
hereof and each of the Shareholders shall vote or cause to be voted their
respective Shares of the Company to cause the Company to fulfill its covenants
hereunder. The Company shall not cast any vote, give any consent, waiver or
ratification or take (or omit to take) any action which would violate or be
inconsistent with any of the terms of this Agreement, or which would otherwise
have the effect of impairing the rights of the Shareholders hereunder.
2.3. Covenants by Xtal. Xtal consents to the terms of this Agreement and
hereby covenants with the Company that it will at all times during the term of
this Agreement be governed by the terms and provisions hereof and the Company
shall vote or cause to be voted its Xtal Shares to cause Xtal to fulfill its
covenants hereunder. Xtal shall not cast any vote, give any consent, waiver or
ratification or take (or omit to take) any action which would violate or be
inconsistent with any of the terms of this Agreement, or which would otherwise
have the effect of impairing the rights of the Shareholders hereunder.
ARTICLE 3
MANAGEMENT OF THE COMPANY AND XTAL
3.1. Members of the Boards of Directors. The Company and Xtal shall have 3
members of each of their respective Boards of Directors, who shall be nominated
and elected as provided for in Section 3.2.
3.2. Election of the Members of the Boards of Directors.
(a) Nomination. FCI shall have the right to appoint 2 members of the
Boards of Directors. Algar shall have the right to appoint 1 member of the
Boards of Directors.
(b) Chairman and Vice-Chairman. The Chairman and Vice Chairman of the
Boards of Directors shall be elected by the Shareholders for a one-year period.
The Chairman shall be appointed by FCI and the Vice Chairman elected by Algar.
If at any time a Shareholder owns or controls a majority of the Shares, the
controlling shareholder may designate a new Chairman and the minority
shareholders shall designate a Vice Chairman.
(c) Replacement. The party entitled under subsections 3.2(a) and (b) to
nominate a member of the Boards of Directors may replace any member nominated by
it at any time and from time to time in accordance with the requirements of
subsection 3.2(a) and (b). Any such party who wishes to replace a member may
have such member replaced at any duly constituted meeting of the Shareholders of
the Company or Xtal, or shall forward a written notice to that effect, signed by
that Shareholder, as the case may be, to the other Shareholder and, upon receipt
of such written notice, the Shareholders shall immediately call a Shareholders
Meeting in which they will replace the member in accordance with the terms of
the written resolution.
(d) Transfer of Shares. As required by the Brazilian Corporation Law, each
Shareholder shall assign and transfer one (01) share to each member of the
Boards of Directors appointed by it. The shares assigned to the Members of the
Boards of Directors shall be considered, for the purposes hereof, as the
property of the Shareholder which assigned them. The Shareholders agree to
obtain from each Member of the Boards of Directors appointed by them full powers
to transfer such shares to themselves in case the assigned member ceases, for
any reason, to be a Member of the Boards of Directors.
(e) Indemnity. The Company and Xtal hereby agree to indemnify each member
of the Boards of Directors against all costs, charges and expenses, including an
amount paid to settle an action or satisfy a judgment, reasonably incurred by
him or her in respect of any civil, criminal or administrative proceeding to
which he or she is made a party by reason of being or having been a member of
the Boards of Directors of the Company and/or Xtal provided (i) he or she acted
honestly and in good faith with a view to the best interests of the Company
and/or Xtal; (ii) he or she acted in accordance with the powers conferred upon
him or her in the Bylaws and in the Brazilian Corporation Law; and (iii) in the
case of a criminal or administrative proceeding that is enforced by a monetary
penalty, he or she had reasonable grounds for believing that his or her conduct
was lawful.
(f) Term of Office. The term of office of a Member of the Boards of
Directors shall commence on the date of that individual's election to the Boards
of Directors and shall terminate at the close of the following ordinary and
annual meeting of the Shareholders, or until their successors are elected, or at
any time prior thereto if the Shareholder nominating a member of the Boards of
Directors replaces such member of the Boards of Directors in accordance with
subsection 3.2(c) or otherwise in accordance with subsection 3.2(a).
3.4. Powers and Duties of Members of the Boards of Directors. Subject to
any applicable law and the provisions hereof, the members of the Boards of
Directors shall set forth the general policies of management of the Company and
Xtal and supervise the Company's and Xtal's businesses.
3.5. Boards of Directors Meetings.
(a) Meetings. The Boards of Directors shall meet at least once every
month. The Chairman or the Vice Chairman shall be entitled to convene a meeting
of Members of the Boards of Directors upon notice given as specified in
subsection 3.5(d).
(b) Quorum. Unless otherwise agreed to in writing by all of the Members of
the Boards of Directors, a quorum of any meeting of the Boards of Directors
shall consist of all the Members of the Boards of Directors. Any of such Members
of the Boards of Directors may be represented by other Member of the Boards of
Directors indicated by him or her by means of a written notice to the other
Members. The resolutions of the Boards of Directors shall be taken by the
favorable votes of, at least, 2 Members of the Boards of Directors personally or
represented by other Members of the Boards of Directors.
(c) Matters Requiring Approval of the Boards of Directors. In addition to
other matters within the competence of the Boards of Directors set forth under
the Brazilian Corporation Law, the following matters shall require, for their
approval, the affirmative vote of a majority of the Members of the Boards of
Directors. Provided that as to the matters specified in "(xiv), (xv), (xvi),
(xvii) and (xviii)" below, the unanimous approval of all Members of the Boards
of Directors shall be required.
(i) acquisition or subscription by the Company and/or Xtal of an
ownership interest in other companies (except for those acquired or
subscribed in a non-permanent character according to ordinary cash
management practices);
(ii) the grant of guarantee or indemnification by the Company and/or
Xtal of, or the grant of a security interest, lien or other
encumbrance by the Company and/or Xtal on any of their rights or
assets;
(iii) the making of any loans with, the granting of any other
financial assistance to, or the entering into of any agreements with
any Shareholder or Person Controlling, Controlled by or under common
Control with such Shareholder;
(iv) the election of the Officers of the Company and/or Xtal, the
distribution of their fees and, subject to the applicable provisions
of the Bylaws, the establishment of their specific duties as Officers;
(v) the appointment and removal of the Company's and/or Xtal's
independent auditors;
(vi) the incurrence of Indebtedness or other obligations by the
Company and/or Xtal with a term equal to or longer than 360 days;
(vii) making of loans or advanced payments by the Company and/or Xtal;
(viii) the reduction of the amount of insurance coverage for the
Company and/or Xtal and for the companies Controlled by the Company
and/or Xtal, and any change in the scope or the provider of such
insurance coverage;
(ix) issuance of shares within the limits of the Company's and/or
Xtal's authorized capital or issuance of any other type of securities,
including, but not limited to, bonds and promissory notes, commercial
papers and others, and the determination of the conditions of such
issuance, including price, type and class of the shares to be issued;
the authorization for any acquisition of Shares and/or Xtal Shares by
the Company and/or Xtal;
(x) admission of the Company and/or Xtal to a Brazilian or a foreign
stock exchange and the listing and quotation of the shares of the
Company and/or Xtal;
(xi) the approval of establishment of branch offices, facilities or
agencies of the Company and/or Xtal;
(xii) the approval of the formation of any subsidiary of the Company
and/or Xtal;
(xiii) the approval of settlements by the Company and/or Xtal of
lawsuits involving amounts in excess of US$ 5,000 per settlement;
(xiv) any incurrence of Indebtedness by the Company and/or Xtal in an
aggregate principal amount exceeding US$5,000,000 (five million US
dollars), during the period between the Closing Date and the
US$10,000,000 Promissory Note Payment Date, and, thereafter, any
incurrence of Indebtedness in an aggregate principal amount exceeding
US$15,000,000 (fifteen million US dollars) over a period of 3 (three)
years counted from the Closing Date;
(xv) capital expenditures in excess of US$500,000 (five hundred
thousand US dollars), by the Company and/or Xtal during the period
between the Closing Date and the US$ 10,000,000 Promissory Note
Payment Date, and US$15,000,000 (fifteen million US dollars) over a
period of 3 (three) years counted from the Closing Date;
(xvi) sale of assets of the Company or Xtal not in the ordinary course
of business in excess of US$200,000 (two hundred thousand US dollars),
during the period between the Closing Date and the US$ 10,000,000
Promissory Note Payment Date, and US$500,000 (five hundred thousand US
dollars) over a period of 3 (three) years counted from the Closing
Date;
(xvii) any transaction between the Company, Xtal, FCI and any related
party and any transaction not in the ordinary course of business,
except for the Technology Transfer and Licensing Agreement between
FiberCore, the Company and Xtal; and
(xviii) the direct or indirect sale, disposal, transfer of, or the
grant of options, encumbrance, pledge or creation of any security
interest in, or, otherwise, any dealing with any of the Xtal Shares
held by the Company or any rights relating thereto, including
subscription rights.
(d) Notice. Unless all Members of the Boards of Directors are present, no
meeting of members of the Boards of Directors shall be validly convened unless
twenty-one (21) days written notice in advance thereof, specifying the business
to be transacted at the meeting, is given to all Members of the Boards of
Directors. No resolution with respect to any matter may be put to any meeting of
the Boards of Directors unless the notice of the meeting contains reasonable
detail of the matter or unless all of the Members of the Boards of Directors
either are present and do not object to the matter being put to the meeting or
otherwise expressly waive the provisions of this subsection.
(e) Members of the Boards of Directors Fees. The compensation of the
Members of the Boards of Directors shall be approved by the Shareholders as
provided herein. In addition, each Member of the Boards of Director shall be
entitled to be reimbursed by the Shareholder who have appointed such Member for
reasonable out-of-pocket traveling and subsistence expenses incurred by
attending meetings of, or otherwise being engaged in the business of, the Boards
of Directors.
3.6. Members of the Boards of Officers.
(a) General Principles. The Shareholders agree to mutually devote
resources to assure the Company and Xtal are staffed with qualified and
experienced staff.
(b) Nomination. The Members of each of the respective Boards of Officers
shall be elected by a vote of the Members of the Boards of Directors, under the
procedures specified in Section 3.5 (c)(v).
(c) Members of the Boards of Officers. In addition to the Managing
Director, the Boards of Officers shall have a Chief Financial Officer and a
Director of Operations. Election of such Members is subject to the decision and
approval of the respective Boards of Directors as provided for in Article 3. FCI
shall recommend to the Boards of Directors candidates for Managing Director,
Chief Financial Officer and Director of Operations of the Boards of Officers.
The Boards of Directors agree to accept such recommendations unless it can be
demonstrated by a Member that a candidate to the Boards of Officers is not
qualified for the position.
(d) Term of Office. The term of office of a Member of the Boards of
Officers shall commence on the date of that individual's election to the Boards
of Officers and shall terminate at the close of the following ordinary and
annual meeting of the Shareholders, or until their successors are elected, or at
any time prior thereto if the Officer is replaced by the Boards of Directors.
3.7. Fiscal Council. The Fiscal Council of the Company and Xtal shall not
be permanent. However, in case its installation is required at any time, FCI
shall be entitled to appoint 2 (two) of the Fiscal Council members and Algar
shall be entitled to appoint 1 (one) of the Fiscal Council members.
ARTICLE 4
MEETINGS OF SHAREHOLDERS OF THE COMPANY AND XTAL
4.1. Quorum. The resolutions taken at a meeting of Shareholders shall,
except as otherwise required under the Brazilian Corporation Law, be taken by
the majority of votes of those in attendance or duly represented, without
computing blank votes. However, the following decisions shall require the
unanimous consent of the Shareholders, and the meetings called to decide on any
of such matters shall not be convened without the attendance of all the
Shareholders:
(i) the authorization to managers to declare bankruptcy of the Company
and/or Xtal or to enter into a general composition with creditors
(concordata);
(ii) the liquidation, spin-off or winding-up of the Company and/or
Xtal;
(iii) any amendments to the Bylaws of the Company and/or Xtal which
may affect the rights granted to the shares held by Algar;
(iv) during the period between the Closing Date and the US$ 10,000,000
Promissory Note Payment Date, the merger, consolidation, any corporate
restructuring of the Company and/or Xtal;
(v) during the period between the Closing Date and the US$ 10,000,000
Promissory Note Payment Date, any amendments to the Bylaws of the
Company and/or Xtal; and
(vi) other than as provided herein, the establishment of the aggregate
fees of the members of the Boards of Directors and the Officers of the
Company and/or Xtal.
4.2. Notice. Without prejudice to the formalities set forth under the
Brazilian Corporation Law, the Company's and Xtal's general meetings shall be
called upon written notice sent to each Shareholder at least twenty-one (21)
days in advance, which shall include the matters to be discussed and, unless all
of the Shareholders are present, resolutions taken in connection with matters
not expressly referred to in the call notice shall not be valid and shall not
bind the Company and/or Xtal or the Shareholders.
ARTICLE 5
FINANCIAL AND ACCOUNTING PRACTICES
5.1. Financial Information.
(a) The Company and/or Xtal shall deliver to the respective Shareholders
within 90 days of the end of each financial year of the Company and/or Xtal one
copy of their annual financial statements, which shall be prepared on a
consolidated basis in accordance with generally accepted accounting principles
applicable in Brazil and be audited by independent auditors of the Company
and/or Xtal which carry on business internationally and which are qualified and
entitled to carry on in Brazil the practice of public accounting and auditing,
including the balance sheet and statements of income, retained earnings and
changes in financial position, together with all supporting schedules and notes.
(b) The Company and/or Xtal shall provide a monthly financial report to
the respective Shareholders within 30 days after the end of each month
consisting of the monthly and year to date financial statements as normally
prepared by management for their own use which shall contain a comparison of
budget to actual and to the prior year for the same period.
5.2. Maintenance of Books. The Company and Xtal shall maintain accurate
and complete books and records of all transactions, receipts, expenses, assets
and liabilities of the Company and Xtal in accordance with generally accepted
accounting principles, consistently applied as approved and adopted by the
Boards of Directors.
5.3. Review of Books. Each Shareholder shall, at its expense unless
otherwise agreed by the respective Shareholders, be entitled to appoint a
representative, agent or designee to review, on reasonable notice, all books,
documents and records of the Company and Xtal and shall be entitled to make
copies thereof for their own purposes. Each Shareholder and its representatives,
agents and designees shall have the right to discuss at any time with management
personnel of the Company and Xtal, such matters pertaining to the financial
position, operations, investments and financings.
5.4. Dividend Policy. Subject to the provisions set forth in the Brazilian
Corporation Law and in the Bylaws, as amended from time to time, unless the
payment of dividends would result in a default under any agreement to which the
Company or Xtal is a party, the Company shall not be required to pay dividends
during the term of this Agreement.
ARTICLE 6
TRANSFER AND ISSUANCE OF COMPANY'S SHARES
6.1. Sale and Issue Restrictions.
(a) Except as otherwise set forth in this Agreement, FCI and Fibercore may
not directly or indirectly, sell, transfer or grant an option of its Shares in
the Company or any rights relating thereto, including subscription rights,
without the prior written consent of Algar, which shall not be unreasonable
withheld.
(b) No proposed dealing with any Shares (including the issuance thereof)
in violation of this Agreement shall be valid, and the Company shall not record
or transfer any of the Shares dealt with in violation of this Agreement in the
records of the Company nor shall any voting rights attached to such Shares be
exercised, nor shall any dividends be paid on such Shares during the period of
such violation. Such disqualification shall be in addition to and not in lieu of
any other remedies to enforce the provisions of this Agreement.
(c) Notwithstanding anything else herein contained, every transfer of all
or a portion of the Shares held by a Shareholder, and any right to subscribe to
issue of Shares by the Company, in addition to the requirements of the Bylaws,
shall be subject to the condition that the proposed transferee, or holder, if
not already bound by this Agreement, shall first enter into an agreement with
the other parties hereto to be bound hereby.
(d) No Shareholder shall be entitled to the right of first refusal
provided for in this Agreement in relation to the transfer and assignment of
Shares or preemptive rights effected by any other Shareholder to (i) any Person
Controlled directly or indirectly by such other Shareholder; (ii) any Person
Controlling directly or indirectly such other Shareholder; or (iii) any Person
Controlled directly or indirectly by any other Person Controlling such other
Shareholder, provided that in any case such transfer or assignment of Shares or
preemptive rights shall be valid and effective only if the transferee or
assignee fully and without restrictions agrees in writing to be bound by the
provisions of this Agreement, as if it had been an original party hereto.
6.2. Algar's Right of First Refusal.
(a) Offer. If at any time after the date of this Agreement, FCI (the
"Selling Shareholder") desires or is obligated for any reason to, directly or
indirectly, sell to a third party with whom the Selling Shareholder is dealing
at arm's length all or a portion of the Shares held by the Selling Shareholder
(hereinafter in this Section referred to as the "Offered Shares"), the Selling
Shareholder shall obtain from the third party a bona fide offer in writing which
offer shall be irrevocable for a period of 60 (sixty) days (hereinafter in this
Section referred to as the "Offer"), which it is ready and willing to accept, to
purchase the Offered Shares for the amount thereof set forth in the Offer
exclusively by cash or certified check and shall give notice in writing to the
other Shareholder of the receipt of the Offer within 5 (five) days thereof,
together with a copy of the Offer.
(b) Algar (the "Non-Selling Shareholder") shall have the irrevocable
right, exercisable by written notice given to the Selling Shareholder within 15
(fifteen) days after the giving of the notice by the Selling Shareholder, to
purchase all but not less than all of the Offered Shares of the Selling
Shareholder on the terms and conditions and for the amount set forth in the
Offer.
(c) Upon the exercise of the right of first refusal under Section 6.2(b),
the Non-Selling Shareholder in accordance with the terms of the Offer, the
Offered Shares shall, concurrently with the payment set forth under the Offer,
be transferred to the Non-Selling Shareholder by the Selling Shareholder.
(c) After the date on which the Offer has elapsed without the sale taking
place, if the Selling Shareholder wishes again to dispose of or transfer its
Shares, it shall renew the procedure set forth herein.
(d) For the purposes of this Section, the Non-Selling Shareholder shall be
entitled to the right of first refusal provided for herein in the event of any
proposed sale of all or a substantial portion of the assets of the Company under
the same terms and conditions as provided for herein
(e) Notwithstanding the provisions above, if FCI decides to, directly or
indirectly, sell, dispose or otherwise transfer any portion of its interest in
the Company to a third party, or all or a substantial portion of the assets of
the Company, Algar will have the option, at its sole and absolute discretion,
(i) to purchase the Offered Shares under the terms of Section 6.2(b) above, or
(ii) to exercise its Put Option as provided for in Section 6.4 below.
6.3. Call Option.
(a) In the event that the US$10,000,000 Promissory Note is not paid in
full by Fibercore to Algar (or to whom Algar may designate) on Xxxxx 00, 0000,
Xxxxx shall have the right, but not the obligation, at its sole and absolute
discretion, to require FCI and Fibercore, on a joint and several basis, to sell
to Algar (or to whom Algar may designate) either (i) all Shares then held by
FCI, upon a payment of US$9,000,000 (nine million US dollars) plus the return
and cancellation of the US$10,000,000 Promissory Note; or (ii) such number of
Shares, as required to, following any acquisition pursuant to this Section
6.3(a)(ii), result in Algar retaining a 60% (sixty percent) interest in the
Company, upon a payment of R$1,00 (one real) plus the return and cancellation of
the US$10,000,000 Promissory Note (the "Call Option").
(b) The Call Option shall be exercised by Algar giving to Fibercore and
FCI a notice in writing (the "Call Notice") of its intention to exercise the
Call Option.
(c) The completion of the Call Option shall take place at the head office
of the Company before or on the date being 30 days after the date on which Algar
has delivered the Call Notice and, upon the completion of the transaction, the
payment of the Shares subject to the Call Option as provided for in Section
6.3(a) above shall be payable in full in cash or by certified check or bank
draft and FCI and Fibercore shall transfer such Shares to Algar or its designee
for such purpose, with all rights inherent therein, including but not limited
to, dividends, profits, subscription rights, and free and clear of all liens,
burdens, encumbrances, claims, disputes, rights of first refusal and any other
claims and liabilities of any kind whatsoever.
(d) In the event Fibercore accomplishes its obligations of payment of the
US$10,000,000 Promissory Note plus accrued interests during such 30 day period
prior to the payment by Algar of the amount related to its Call Option under the
terms of Section 6.3(c) above, upon notification to Algar, then such Call Option
shall be null and void.
(e) In the event the Algar exercises its Call Option in accordance with
Section 6.3(a)(i) above and upon the completion of the transaction relating to
the transfer of the Shares under the Call Option, this Shareholder Agreement
shall be terminated and FCI and Fibercore shall cause their nominees to resign
from all offices and positions with the Company.
(f) In the event that Algar exercises its Call Option in accordance with
Section 6.3(a)(ii) above and upon the completion of the transaction relating to
the transfer of the Shares under the Call Option, (i) this Agreement shall
remain in full force and effect; (ii) FCI shall have the right to retain a
minority position in the Boards of Directors and all provisions of Articles 3
and 4 shall be construed accordingly and Algar shall become entitled to all
rights previously granted to FCI, as a majority shareholder under Articles 3 and
4, and vice-versa; (iii) FCI shall become entitled to a right of first refusal
in connection with the Shares then held by Algar under the same terms and
conditions as provided for in Section 6.2 above, without prejudice to the right
of first refusal to which Algar is entitled thereunder, and (iv) the
FCI/Fibercore Call Option shall become ineffective.
(g) In the event that FCI fails to comply with its obligations to deliver
the Shares under the Call Option, FCI and Fibercore, on a joint and several
basis, shall pay a penalty of 10% (ten percent) of the amount due by Algar under
the Call Option, plus legal and court fees incurred by Algar in the process of
enforcing its rights hereunder.
6.4. Put Option.
(a) On June 20, 2003 or at any time in the event that FCI decides to,
directly or indirectly, sell, dispose or otherwise transfer any portion of its
interest in the Company to a third party, or all or a substantial portion of the
assets of the Company, Algar shall have the right, but not the obligation, at
its sole and absolute discretion, to require FCI and Fibercore, on a joint and
several basis, to buy from Algar all Shares then held by Algar, upon a payment
of US$2,500,000 (two million, five hundred thousand US dollars) plus interest at
the rate of 6% (six percent) per annum, calculated from the Closing Date until
the date on which such payment is made (the "Put Option").
(b) The Put Option shall be exercised by Algar giving to FCI and Fibercore
a notice in writing (the "Put Notice") of its intention to exercise the Put
Option.
(c) The completion of the Put Option shall take place at the head office
of the Company before or on the date being 10 days after the date on which Algar
has delivered the Put Notice and, upon the completion of the transaction, the
price for the Put Option provided for in Section 6.4(a) above shall be payable
in full in cash or by certified check or bank draft and Algar shall transfer all
its Shares to FCI and/or Fibercore or their designee for such purpose, with all
rights inherent therein, including but not limited to, dividends, profits,
subscription rights, and free and clear of all liens, burdens, encumbrances,
claims, disputes, rights of first refusal and any other claims and liabilities
of any kind whatsoever.
(d) Upon the completion of the transaction relating to the transfer of the
Shares under the Put Option, Algar shall cause its nominee(s) to resign from all
offices and positions with the Company.
(e) In the event the FCI and/or Fibercore fail to pay any amount due by
them under the Put Option, FCI and Fibercore, on a joint and several basis,
shall pay a penalty of 10% (ten percent) of the amount due and not paid, plus
legal and court fees incurred by Algar in the process of enforcing its rights
hereunder.
6.5. FCI/Fibercore Call Option.
(a) At any time during the term of this Agreement, FCI and Fibercore shall
have the right, but not the obligation, at their sole and absolute discretion,
to require Algar to sell to FCI and/or to Fibercore all Shares then held by
Algar, upon a payment of US$2,500,000 (two million, five hundred thousand US
dollars) plus interests at the rate of 6% (six percent) per annum, calculated
from the Closing Date until the date on which such payment is made (the
"FCI/Fibercore Call Option").
(b) The FCI/Fibercore Call Option shall be exercised by FCI and/or
Fibercore giving to Algar a notice in writing (the "FCI/Fibercore Call Notice")
of its intention to exercise the FCI/Fibercore Call Option.
(c) The completion of the FCI/Fibercore Call Option shall take place at
the head office of the Company before or on the date being 10 days after the
date on which FCI and Fibercore has delivered the FCI/Fibercore Call Notice and,
upon the completion of the transaction, the price for the FCI/Fibercore Call
Option provided for in Section 6.5(a) above shall be payable in full in cash or
by certified check or bank draft and Algar shall transfer all its Shares to FCI
and/or Fibercore, or their designee for such purpose, with all rights inherent
therein, including but not limited to, dividends, profits, subscription rights,
and free and clear of all liens, burdens, encumbrances, claims, disputes, rights
of first refusal and any other claims and liabilities of any kind whatsoever.
(d) Upon the completion of the transaction relating to the transfer of the
Shares under the FCI/Fibercore Call Option, Algar shall cause its nominee(s) to
resign from all offices and positions with the Company.
(e) In the event FCI and/or Fibercore fails to pay any amount due by it
under the FCI/Fibercore Call Option, FCI and Fibercore, on a joint and several
basis, shall pay a penalty of 10% (ten percent) of the amount due and not paid,
plus legal and court fees incurred by Algar in the process of enforcing its
rights hereunder.
6.6. Future Share Issuances and Capital Contributions.
(a) If the Company, by resolution of the Shareholders Meeting or its Board
of Directors Meeting, as the case may be, and without prejudice of the rights of
the Shareholders set forth under the Brazilian Corporation Law, including,
without limitation, pre-emptive rights, proposes to issue further equity
securities or other instruments convertible into equity securities, the Company
shall provide written notice to the Shareholders specifying the terms and
conditions of the proposed equity issue including the amount, the type of
security to be issued and the subscription price per security to be issued. Each
of the Shareholders shall have the irrevocable right, exercisable by written
notice given to the Company within 30 days after the giving of above notice by
the Company, to participate in the capital increase on a pro-rata basis based on
the number of Shares held by such Shareholder on the terms and conditions set
forth by the Company. In the event that one or more Shareholders elects to
subscribe for its pro-rata share of the proposed equity issue and one or more
Shareholders declines to so subscribe, the Shareholder(s) electing to so
subscribe shall have the further right and option, exercisable by notice in
writing within 5 days of being notified by the Company that one or more
Shareholders has declined to so subscribe, to subscribe for the remaining equity
on the same terms and conditions as set forth by the Company in proportion to
their respective holdings of Shares (or in such other proportions as they may
agree among themselves). The foregoing procedure shall be repeated as often as
necessary until the equity issue is fully subscribed or until there remains
equity which no Shareholder has elected to subscribe for. If there remains
equity which no Shareholder has elected to subscribe for, such subscription
rights may be transferred to third parties, subject to the provisions of
Sections 6.1. and 6.2 above
(b) Without prejudice to the provisions set forth in Section 6.3 above, in
the event that any capital increase is subscribed only by one Shareholder which
causes the interest held by the other Shareholder in the Company to be diluted,
the obligations assumed and the amounts due by Shareholders pursuant to the Put
Option and the Call Option shall not be changed or affected in any means.
(c) The Shareholders agree that Algar shall not be required at any time to
subscribe for any capital increases of the Company or to provide any other type
of financing to the Company.
ARTICLE 7
TRANSFER AND ISSUANCE OF XTAL SHARES
7.1. Sale and Issue Restrictions.
(a) Except as otherwise set forth in this Agreement, the Company may not
directly or indirectly, sell, transfer or grant an option of Xtal Shares or any
rights relating thereto, including subscription rights, without the prior
written consent of Algar, which shall not be unreasonable withheld..
(b) No proposed dealing with any Xtal Shares (including the issuance
thereof) in violation of this Agreement shall be valid, and Xtal shall not
record or transfer any of the Xtal Shares dealt with in violation of this
Agreement in the records of Xtal nor shall any voting rights attached to such
Xtal Shares be exercised, nor shall any dividends be paid on such Xtal Shares
during the period of such violation. Such disqualification shall be in addition
to and not in lieu of any other remedies to enforce the provisions of this
Agreement.
(c) Notwithstanding anything else herein contained, every transfer of all
or a portion of the Xtal Shares held by the Company, and any right to subscribe
to issue of Xtal Shares by the Company, in addition to the requirements of the
Bylaws, shall be subject to the condition that the proposed transferee, or
holder, if not already bound by this Agreement, shall first enter into an
agreement with the other parties hereto to be bound hereby.
ARTICLE 8
REPRESENTATIONS AND WARRANTIES
Each Shareholder hereby represents and warrants to the other Shareholder
and to the Company that such Shareholder:
(a) is neither a party to nor bound by any agreement regarding the
ownership of its Shares, or an agreement to effect a transfer of Shares in
accordance with the terms of this Agreement, other than this Agreement, which
provisions shall be superseded by the provisions of this Agreement only in the
event of a conflict;
(b) is not a party to, bound by or subject to any indenture, mortgage,
lease, agreement, instrument, charter or bylaw provision, statute, regulation,
order, judgment, decree or law which would be violated, contravened or breached
by, or under which any default would occur as a result of the execution and
delivery by such Shareholder of this Agreement or the performance by such
Shareholder of any of the terms hereof;
(c) owns its Shares free and clear of any liens, encumbrances
or rights of third parties; and
(d) this Agreement constitutes a legal, valid and binding obligation
enforceable against such Shareholders in accordance with its terms.
ARTICLE 9
TERM OF AGREEMENT
This Agreement shall come into force and effect on the date hereof and
shall terminate on the date Algar does not hold any Share of the Company.
ARTICLE 10
SETTLEMENT OF DISPUTES
10.1. Best Efforts to Settle Disputes.
(a) If any Dispute arises, the Shareholders and Fibercore shall use their
best efforts to settle the Dispute. To this end, any of the Shareholders and
Fibercore may notify the others of its desire to initiate the procedure
contemplated by this Section 10, whereupon the Shareholders and Fibercore shall
forthwith meet to attempt to resolve such Dispute through amicable and good
faith discussions (the "Notice of Dispute").
(b) Disputes which the Shareholders and Fibercore are unable to resolve
through such amicable and good faith discussions within thirty (30) days
following receipt of the Notice of Dispute shall be submitted to the Chief
Executive Officer (or equivalent) of FiberCore and Algar. Such two persons shall
consult and negotiate with each other in good faith in an effort to reach a just
and equitable solution and shall have powers to resolve such dispute upon
unanimous vote in the best interest of the Company, subject to approval of their
respective Board of Directors.
10.2. Arbitration.
(a) Except as otherwise provided in this Agreement, if the Shareholders
and Fibercore do not reach a solution pursuant to Section 10.1 within a period
of 60 (sixty) days following the delivery of the Notice of Dispute by a
Shareholder to the other or to Fibercore, then the Dispute shall be settled by
arbitration, as provided below.
(b) The arbitration shall be conducted in accordance with the AAA Rules,
except as they may be modified herein or by mutual agreement of the parties. The
seat of the arbitration shall be in the City of Sao Paulo, Brazil, and it shall
be conducted in Portuguese.
(c) The arbitration shall be conducted by three arbitrators. The
claimant(s) shall appoint an arbitrator in its/their "Request for Arbitration",
and the respondent(s) shall appoint an arbitrator in its/their "Answer". If
either party fails so to appoint its arbitrator, then that arbitrator for such
party shall be appointed by the AAA. The first two arbitrators appointed in
accordance with this provision shall appoint a third arbitrator (i) within 30
days after the respondent has notified claimant of the appointment of the
respondent's arbitrator, or (ii) in the event of a failure by either party to
appoint an arbitrator, within 30 days after the AAA has notified the parties and
any arbitrator already appointed of the appointment of an arbitrator on behalf
of the party failing to appoint its arbitrator. If the first two arbitrators
appointed fail to appoint a third arbitrator within the time period prescribed
above, then the AAA shall appoint the third arbitrator. The third arbitrator
shall act as a chairperson of the tribunal.
(d) The parties agree that either party may need to obtain interim
injunctive relief from a court. Therefore, a request for interim injunctive
relief by a party to a court, either before or after the arbitration processings
have been initiated in accordance with the AAA Rules, shall not be deemed
incompatible with, or a waiver of, any provisions of this section. For such
purpose, the parties elect the courts sitting in the City of Sao Paulo, State of
Sao Paulo, excluding any other, however privileged it may be. In addition to the
authority conferred in the arbitration tribunal by the AAA Rules, the
arbitration tribunal shall have the authority to make such orders for interim
relief, including injunctive relief, as it may be deemed just and equitable.
(e) The arbitral award shall be in writing, state the reasons for the
award, be final and binding on the parties, and be enforceable in accordance
with its terms. The parties agree that the award is to be considered as a
settlement of the Dispute between them and shall accept it as the true
expression of their own determination in connection therewith. The arbitration
tribunal may award any relief available and appropriate under the Law governing
this Agreement, including specific performance. The award may include an award
of costs, including reasonable attorney's fees and disbursements. Judgment upon
the award may be entered by any court having jurisdiction thereof or having
jurisdiction over the relevant party or its assets.
ARTICLE 11
GENERAL PROVISIONS
11.1. Entire Agreement. This Agreement constitutes the entire agreement
among the parties hereto with regard to the subject matter hereof and supersedes
all prior agreements, understandings, representations or warranties,
negotiations and discussions, whether oral or written, among the parties hereto
with respect thereto.
11.2. Amendment. No amendment of this Agreement shall be binding unless in
writing and signed by all of the parties hereto.
11.3. Waiver. No waiver by any party hereto of any breach of any of the
provisions of this Agreement shall take effect or be binding upon such party
unless in writing and signed by such party. Unless otherwise provided therein,
such waiver shall not limit or affect the rights of such party with respect to
any other breach.
11.4. Severability. Each provision of this Agreement is intended to be
severable. If any provision hereof is illegal or invalid, such provision shall
be deemed to be severed and deleted from this Agreement and such illegality and
invalidity shall not affect the validity or enforceability of the remainder
hereof.
11.5. Notices. Any notice or communication required or permitted under
this Agreement shall be in writing and shall be sent by facsimile transmission
or by personal delivery and shall be deemed to have been duly made when actually
received or delivered. Any party may by written notice to the others, change the
address or facsimile number to which transmissions and deliveries shall
thereafter be made. Until changed, the address and facsimile number of each of
the parties hereto shall be as follows:
IF TO FIBERCORE: FIBERCORE, INC.
X.X. XXX 000
000 Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000, U.S.A
Att: Xx. Xxxxx Xxxxxx
IF TO FCI: FIBERCORE LTDA.
Rua Libero Badaro, 293
City of Sao Paulo, State of Sao Paulo
Att: Xxxxxx X. do Xxxxx
IF TO ALGAR: XXXXX X.X. - EMPREENDIMENTOS E
PARTICIPACOES
Xxxxxxx Xxxxxxxxxxx Xxxxxx, 0000
Xxxxxxxx Xxxxxxxxxx, Xxxxxxxxxx
Att: Xxxxxx Xxxxxxxx Xxxx
IF TO XTAL: XTAL FIBRAS OPTICAS S.A.
Xxxxxxx Xxxxxxxxxxx Xxxxxx, 0000 - Sala 0
Xxxxxxxx Xxxxxxxxxx, Xxxxxxxxxx
Att: Xxxxxxx Xxxxxx xx Xxxxxx
IF TO COMPANY: MAMORE PARTICIPACOES S.A.
Xxxxxxxxxxx Xxxxxx, 0000, cj. 00, Xxxx X
Xxxxxxxx Xxxxxxxxxx, Xxxxxxxxxx
Att: Xxxxxx Xxxxxxxx Xxxx
11.6. Filing. This Agreement and all amendments hereto shall be filed at
the Company's head office pursuant to and for the purposes of Article 118 of the
Brazilian Corporation Law. The Company's Registered Share Book, on the margin of
the Share registration, and the certificates representing the Shares, if issued,
now or hereafter beneficially owned by the Shareholders during the term of this
Agreement shall bear the following wording: "The voting right inherent in the
Shares represented by this Certificate (or registry), including its transfer or
creation of lien for any purpose, is bound and subject to the Shareholders'
Agreement executed on June 20, 2000."
11.7. Assignment. Neither this Agreement nor any rights or obligations
hereunder are assignable by the parties hereto without the prior written consent
of the other parties hereto. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs, executors, legal
personal representatives, successors and permitted assigns.
11.8. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Shareholders and their respective successors, heirs
and permitted assigns.
11.9. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of Federative Republic of Brazil. Each of the parties
retains the right to seek judicial assistance: (a) to compel arbitration, (b) to
obtain interim measures of protection rights prior to institution of pending
arbitration and any such action shall not be construed as a waiver of the
arbitration proceedings by the parties and (c) to enforce any decision of the
arbitrators, including the final award. In case the parties seek judicial
assistance, the Central Courts of the city of Sao Paulo, State of Sao Paulo
shall have jurisdiction.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of
the day and year first above written.
FIBERCORE LTDA.:
----------------------------------------------------
Name: Xxxxxx Xxxxx Xxxx de Assumpcao Ribeiro do Xxxxx
Title: Attorney-in-fact
XXXXX X.X. . - EMPREENDIMENTOS E PARTICIPACOES:
---------------------------- -------------------------
Name: Xxxx Xxxxx Xxxx Costa Name: Xxxxxx Xxxxxxxx Xxxx
Title: Chief Executive Officer Title: Attorney-in-fact
FIBERCORE, INC.:
---------------------------- -------------------------
Name: Xxxx X. Xxxxxx Name: Xxxxxx X. Deeches
Title: President and CEO Title: Chief Financial
Officer
MAMORE PARTICIPACOES S.A.
---------------------------- -------------------------
Name: Xxxx Xxxxx Xxxx Costa Name: Xxxxxx Xxxxxxxx Xxxx
Title: Attorney-in-fact Title: Attorney-in-fact
XTAL FIBRAS OPTICAS S.A.:
---------------------------- -------------------------
Name: Xxxxxxx Xxxxxx xx Xxxxxx Name: Xxxxxxxxx Xxxxxx
Xxxxxx
Title: Executive Director Title: Technical
Director
Witnesses:
----------------------- ---------------------
Name: Name:
RG: RG:
