Exhibit 10.2
SHARE PLEDGE AGGREEMENT
BETWEEN:
CONTINENTAL CAN COMPANY (the "Constituant"), and
SUIZA FOODS CORPORATION (the "Beneficiary").
WHEREAS:
- The Constituant holds 256,910 shares of Ferembal, a societe anonyme with a
capital of 40,083,000 FF, with registered offices at 6, boulevard of
General Xxxxxxx, 92110, Clichy, registered at the Company register of
Nanterre under the number No. B 334 384 054 (the "Company").
- The Beneficiary has granted a loan to the Constituant in an amount of
$20,000,000 which has been granted pursuant to the terms and conditions of
the Promissory Note attached hereto dated 27 April, 1998 (hereafter the
"Loan Agreement").
- As a guarantee of the loan, the Constituant has accepted to affect in
guarantee all of the shares which it holds in the company Ferembal S.A.
pursuant to the terms and conditions set forth below.
NOW THEREFORE IT IS AGREED AS FOLLOWS:
1. The Constituant declares by the present document, affecting as security, in
conformity with the provisions of article 29 of the law number 83-1 of 3
January 1983, for the benefit of the Beneficiary, 256,910 nominative shares
of the Company which are registered in the account opened in the name of
the Constituant in the books of the Company (the Shares").
2. The Constituant warrants that the bylaws of Ferembal SA do not contain any
dispositions which submit the sale or transfer of shares to a third party
to a preliminary approval "agreement") of the Board of Directors. The
Constituant irrevocably undertakes to the Beneficiary not to modify the
bylaws of the Company in order to introduce an "agreement" provision, such
undertaking remaining in effect up to the complete repayment to the
Beneficiary of the principal amount of the loan provided for in the Loan
Agreement, together with all interest, expenses and accessory amounts
related thereto.
3. The Constituant warrants that the constitution of the present pledge for
the benefit of the Beneficiary has been the subject of all approvals and
authorizations which are necessary pursuant to all legal, statutory and
by-law provisions which are applicable to it.
16
4. The present pledge is granted to guarantee the reimbursement of all amounts
in principal, interest, expenses and accessory amounts and with respect to
all obligations for which the Constituant may be liable with respect to the
Beneficiary pursuant to the Loan Agreement.
5. Pursuant to Law No. 83-1 of January 3, 1983, all shares, other securities
and financial instruments which may be substituted for or become
supplementary to the Shares set forth as a pledge, due to exchanges,
bringing together, splits, free attributions, subscriptions in cash or
otherwise, as well as the products thereof, in all currencies, are included
in the base of the present pledge.
6. The Constituant warrants that is the sole owner (in both "bare property"
and "usufruct") of the Shares and is, therefore, legally entitled to
constitute a pledge on the Shares in favor of the Beneficiary.
The Constituant warrants that no pledge, privilege or other security
interest on all or any part of the pledged Shares has been granted to date
and that no "opposition" or other reason exists to block the present
pledge.
The Constituant further warrants that there does not exist any "convention
de croupier" or similar agreement relating to all or part of the Shares.
7. The Constituant undertakes that as long as the present pledge shall remain
in effect it shall not:
(i) constitute another pledge or security interest on all or any part of
the Shares;
(ii) sell or transfer, directly or indirectly, in whole or in part, the
Shares;
(iii) permit the Company to be operated other than in the normal course of
business in a prudent manner;
(iv) permit any legal transformations involving the Company, such as
mergers and contributions of assets, to take place.
8. In order to notify the present Pledge Agreement to the Company, a copy of
the present document is at this time delivered to the Beneficiary for
delivery to the Company, which Company shall debit the Shares in the
Constituant's account and shall credit a special "pledge" account in the
name of the Beneficiary on the books of the Company.
9. The Beneficiary may, eight days after notice to the Constituant given to it
directly in hand or sent by registered letter, request the executive of the
present pledge pursuant to article 93 of the Commercial Code or it may
request a court to attribute the pledged Shares to it in conformity with
the provisions of article 2078 of the Civil code, the preceding
17
dispositions applying notable in the event of a simple declaration by the
Beneficiary of an "Event of Default" pursuant to the Loan Agreement, all of
this without prejudice to any other recourse available against the
Constituant.
10. The Beneficiary undertakes that at the latest eight days from the receipt
of full payment by the Constituant of all principal of the loan which is
the subject of the Loan Agreement, and of all the interest, expenses and
accessory amounts related thereto, that it will notify the Company and the
Constituant by registered letter return receipt requested of the
termination of the present pledge. This Pledge Agreement will continue in
effect until all of such sums have been duly paid to the Beneficiary or
until otherwise provided by law in the event of the executive of the
present pledge.
11. The stamp duties and registration taxes, as will as all taxes, penalties
and expenses (including fees of legal counsel) which result from the
executive of the present pledge due to the coming into existence of one or
the other of the cases foreseen in paragraph 8 above, are for the exclusion
account of the Constituant.
12. For the purposes of this agreement, the parties elect domicile at their
respective corporated offices as indicated above.
13. The present pledge is subject to and shall be interpreted under French law
(without application of its conflict of law principles).
14. All disputes arising under the present pledge will be subject to the
exclusive jurisdiction of the courts of the jurisdiction of the Court of
Appeals of Paris and each party declares irrevocably accepting such
jurisdiction and waiving all objections with respect thereto.
CONTINENTAL CAN COMPANY, INC. SUIZA FOODS CORPORATION
By: /s/ Xxxx Xxxxx By: /s/ J. Xxxxxxx Xxxxx
--------------------------- ------------------------
Executive Vice President Vice President
18
