SHAREHOLDERS' AGREEMENT
This Shareholders' Agreement (the "Agreement") dated as of September 4, 2000, is
entered by and between XXXXXX X.X., a company organized and existing under the
laws of Argentina, domiciled at Xxxxxx 000, 00xx xxxxx, Xxxxxx Xxxxx, Xxxxxxxxx
(hereinafter "XXXXXX"); DANONE S.A., a company organized and existing under the
laws of Argentina, domiciled at Xxxxxx 000, 00xx xxxxx, Xxxxxx Xxxxx, Xxxxxxxxx
(hereinafter "DANONE", and jointly with XXXXXX "Group CD"); XXXXXXX XXXXXXXXXX,
DNI 4.899.103, domiciled at Xx. Xxxxxxx X. Xxxx 000, Xxxxxx Xxxxx, Xxxxxxxxx
(hereinafter "PM"); XXXXXXXX X. XXXXXXXXXX, LE 4.908.288, domiciled at Xx.
Xxxxxxx X. Xxxx 000, Xxxxxx Xxxxx, Xxxxxxxxx (hereinafter "VM"); XXXX
XXXXXXXXXX, LE 4.913.592, domiciled at Xx. Xxxxxxx X. Xxxx 000, Xxxxxx Xxxxx,
Xxxxxxxxx (hereinafter "JM"); DALLPOINT INVESTMENTS LTD., a company organized
and existing under the laws of the British Virgin Islands, with domicile in
Argentina at Xx. Xxxxxxxxxx 000, 0xx xxxxx, Xxxxxx Xxxxx (hereinafter
"DALLPOINT", and jointly with PM, VM and JM "Group AB", and together with Group
CD the "Shareholders" or the "Parties" and each a "Shareholder" or "Party"); and
LOGISTICA LA SERENISIMA S.A., a company organized and existing under the laws of
Argentina, domiciled at Xx. Xxxxxxx X. Xxxx 000, Xxxxxx Xxxxx, Xxxxxxxxx
(hereinafter the "Company");
WITNESSETH
WHEREAS, XXXXXX and DANONE and PM, VM, JM and DALLPOINT have executed on
September 4, 2000 a Preemptive Rights Assignment Agreement by which XXXXXX and
DANONE became the owners of 51 % (fifty-one percent) plus 1 share of the total
stock capital and votes of the Company, represented by all Class C and Class D
Shares of the Company;
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WHEREAS, the Shareholders desire that this Agreement, together with the Articles
of Incorporation and By-laws of the Company shall set forth the total and mutual
understanding of the Shareholders with regard to the subject matter thereof.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the Parties mutually agree as follows:
ARTICLE I
ORGANIZATIONAL MATTERS
1.1. ORGANIZATION OF THE COMPANY. The Company is set up and organized under
the laws of Argentina, under the name of Logistica La Serenisima X.X. XXXXXX,
DANONE, PM, VM, JM and DALLPOINT shall be the only shareholders of the Company
which shall be exclusively involved in and devoted to the distribution,
including as the case may be, the selling, sales order taking, delivering,
invoicing and collecting receivables on behalf of Xxxxxxxxxx Hermanos S.A.
(hereinafter "MHSA") and DANONE, in Argentina of the dairy products or any other
fresh products manufactured, marketed and/or imported by MHSA, DANONE and/or any
successor thereto and/or any other company affiliated to, controlled by or
subject to common control with MHSA, DSA or Compagnie Gervais Danone
(hereinafter "CGD") involved in the dairy products, with authority to make and
prosecute any and all applications for the necessary authorizations,
registrations, permits, or approvals of any national, provincial or local
authority, and all other actions which may be necessary, incidental, o
convenient to carry on all the necessary transactions for the Company's
business. The Company shall not be involved in the distribution of industrial
products, public or private bids and/or exportations, being reserved to DANONE
and MHSA and/or any successor thereto and/or any other company affiliated to,
controlled by or subject to common control with MHSA, DANONE or CGD, how to
carry out such activities. Notwithstanding the above, the Company may at MHSA
and/or DANONE's request be involved in the exportation of the dairy products or
any other fresh products manufactured and/or marketed by any of them and/or any
successor thereto and/or any other company affiliated to, controlled by or
subject to common control with MHSA, DANONE or CGD. The Company shall
concentrate on guaranteeing the broadest and
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most cost efficient distribution of the products manufactured and/or marketed by
MHSA, DANONE and/or any successor thereto and/or any other company affiliated
to, controlled by or subject to common control with MHSA, DANONE or CGD involved
in the dairy products.
1.2. ARTICLES OF INCORPORATION AND BY-LAWS. The Shareholders shall vote,
decide and approve unanimously in a Shareholders' Meeting of the Company to be
held by the Shareholders upon the execution of this Agreement within 10 (ten)
and 30 (thirty) days as from the approval of the transaction contemplated in
this Agreement by the Comision Nacional de Defensa de la Competencia pursuant to
the Antitrust Law 25,156, the amendment of the By-laws. The By-laws to be
adopted by the Company are those attached as Exhibit A to this Agreement.
1.3. COMPANY'S DOMICILE. The domicile of the Company shall be located at
the city of Buenos Aires.
1.4. ISSUANCE OF CAPITAL STOCK. Subject to the foregoing, the Shareholders
agree as follows:
(a) Group CD and Group AB agree that they shall own, directly or
indirectly, through affiliated companies which shall abide by this
Agreement, 51 % (fifty-one percent) plus 1 share, and 49 % (forty-nine
percent) minus 1 share, respectively, of the capital stock of the Company;
(b) the capital stock of the Company shall be represented exclusively by
ordinary, nominative, non-endorsable shares of $ 1 nominal value each, with
1 (one) vote per share in the case of Class A and Class C Shares, and with
5 (five) votes per share in the case of Class B and Class D Shares. The
Shares shall be distributed among the Shareholders as follows:
SHAREHOLDER SHARES OWNED
----------- ------------
PM 4,304,554 Class A Shares
2,690,575 Class B Shares
JM 4,304,553 Class A Shares
2,690,575 Class B Shares
VM 4,304,553 Class A Shares
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2,690,575 Class B Shares
DALLPOINT 5,098,267 Class A Shares
5,237,916 Class B Shares
DANONE 11,505,578 Class C Shares
8,501,873 Class D Shares
XXXXXX 7,241,530 Class C Shares
5,351,019 Class D Shares
(c) any capital stock increase of the Company shall be decided and approved
by a Shareholders' Meeting of the Company with the majorities provided in
Section 2.9 hereby and shall be subscribed and paid in on a pro-rata basis
by the Shareholders, unless one of the Shareholders decides not to exercise
its preemptive right. All new shares of capital stock shall have the same
rights as existing Class A Shares, Class B Shares, Class C Shares and Class
D Shares (collectively referred to as the "Shares").
ARTICLE II
GOVERNANCE OF THE COMPANY
2.1. BOARD OF DIRECTORS.
(a) Subject to the terms of this Agreement, the Board shall have complete
and exclusive power to direct and control the business and affairs of the
Company. Subject to the provisions set forth below and unless otherwise
agreed to by unanimous vote of the Shareholders, the Board will consist of
5 (five) regular members and 5 (five) alternate members; 3 (three) regular
and 3 (three) alternate members shall be nominated and elected by Class C
Shares and Class D Shares, and 2 (two) regular and 2 (two) alternate
members shall be nominated and elected by Class A Shares and Class B
Shares. Members elected by Class C Shares and Class D Shares shall be
elected President and Vice-President.
(b) In the event of resignation, leave of absence or dismissal of the
President and the Vice-President of the Board, they shall be automatically
replaced by any of the regular or alternate members of the Board nominated
and elected by Class C Shares and Class D Shares, and the members of the
Board shall appoint and elect them as President and Vice-President,
respectively.
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(c) Regular meetings of the Board shall be held with notice on regular
dates and places fixed in advance at least once per calendar quarter. An
agenda in full detail shall be delivered by the President to each Board
member and to each syndic at least 5 (five) days prior to the Board's
meeting. Any director may include items on the agenda by written request to
the President prior to the distribution of such agenda.
(d) Special meetings of the Board must be called by the President upon the
request of any of its members at any time on at least 5 (five) business
days' advance written notice to the other members of the Board. Notice of a
special meeting of the Board shall contain an agenda in full detail and
shall state the purpose or purposes for which such special meeting is being
called, and no matters may be considered or acted upon at a special meeting
unless such matter was disclosed on the agenda contained in the notice of
such special meeting, or unless the Board decides by unanimous vote of its
5 (five) members to consider such matter.
(e) No action shall be taken by the Board in absence of a quorum, which
shall consist of not less than any 3 (three) of its members. Actions of the
Board shall be taken only upon or pursuant to the affirmative vote of not
less than any 3 (three) members of the Board. Notwithstanding the
foregoing, in order to approve any of the following matters, such quorum
and majority shall be conformed with the presence and the affirmative vote
of at least 1 (one) member of the Board appointed by Group AB: a) the
execution of any agreement with any Shareholder or any company directly or
indirectly related to any Shareholder, under terms which are not arm's
length; b) the granting of any guarantee for an amount exceeding US $
300,000 (three hundred thousand US Dollars) and/or for an annual cumulative
economic value in excess of US $ 1,000,000 (one million US Dollars), other
than those guarantees to be granted by the Company in the ordinary course
of business or as a counterguarantee in favor of banks, suppliers or
customers as provided in the relevant agreements entered into thereby; c)
the granting of any guarantee to any company affiliated to, controlled by
or subject to common control with any of the Shareholders; and d) the
amendment of the terms and conditions of the Services Agreement to be
entered by and among the Company, DANONE and MHSA.
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(f) In the event that a regular member of the Board cannot be present at a
meeting an alternate member elected by the same class of shares may
represent him at the meeting, and if no alternate member is able to attend
the Board meeting a proxy designated in writing by such regular member of
the Board pursuant to Section 266 of the Argentine Company Law 19,550 as
amended (the "ACL"), may attend the meeting in such regular director's
place and such proxy shall so notify to the Company prior to or at the
Board's meeting by means of written evidence of such designation delivered
to the Company.
(g) The Board shall keep minutes as legally required by the ACL reflecting
the actions taken at all meetings of the Board. Copies of the minutes shall
be maintained at the principal office of the Company and shall be
transmitted to each member of the Board promptly after each meeting.
2.2. CONTROLLERSHIP. Class C Shares and Class D Shares shall nominate and
elect the Auditors and 2 (two) regular and 2 (two) alternate members of the
Controllership; and one of those shall be appointed President and the other one
Vice-President of the Controllership. Class A Shares and Class B Shares shall
nominate and elect 1 (one) regular and 1 (one) alternate member of the
Controllership. The Auditors to be elected by Class C Shares and Class D Shares
shall be PriceWaterhouseCoopers or any other auditing firm included within the
so-called "Big Five".
The member of the Controllership nominated by Class A Shares and Class B
Shares shall have the right to participate in the auditing process to be carried
out by the Auditors.
2.3. MANAGEMENT. The Board shall nominate and elect those candidates
proposed by Class C and Class D Shares as General Manager, Finance and
Administrative Manager, Information Manager, Quality Control Manager,
Transportation Manager, Personnel Manager and Warehouses Manager and shall
assign and grant them all the necessary powers it may deem appropriate. The
managers shall be compensated at the reasonable market levels prevailing at the
relevant Argentine market.
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2.4. VOTING OF CAPITAL STOCK. Each Shareholder covenants and agrees always
to vote all the shares held by such Shareholder in order to carry out the terms
and provisions of this Agreement, and to instruct its representatives to the
Board to follow the terms and provisions hereof.
2.5. VACANCIES. When a vacancy occurs in any of the executive offices but
excluding any vacancy in the Board or the Presidency or Vice-presidency, whether
by death, resignation, expiration, term or otherwise, it shall be filled by the
Board in the manner set forth in Section 2.3 hereinabove.
2.6. BOARD COMPENSATION. There shall be no salaries, compensations,
remunerations or any fringe benefits payable to the members of the Board unless
Group CD and Group AB agree otherwise.
2.7. DELEGATION OF DUTIES. Whenever an officer is absent or whenever for
any reason the Board may deem it desirable, the Board may delegate or authorize
the delegation of powers and duties of an officer to any other officer or
officers or to any director or directors.
2.8. PLACE OF MEETINGS. The Board shall hold meetings in the city of Buenos
Aires, Argentina, and notices shall be given, as provided in the By-laws and in
Section 2.1.(c) and (d) hereto.
2.9. SHAREHOLDERS' MEETINGS. The decisions to be adopted by the ordinary
and extraordinary Shareholders' meetings of the Company shall be governed by the
provisions of the ACL. Notwithstanding the foregoing, a special majority of 75 %
(seventy five percent) of the outstanding shares and votes shall be required in
order to approve any increase of the capital stock of the Company, amendment of
the by-laws of the Company, spin-off, merger, winding-up, liquidation,
transformation, capital reduction and repayment, redemption, reimbursement and
repayment of shares, or limitation or suspension of preferred rights and the
extraordinary adjustments which may affect the net worth of the Company.
ARTICLE III
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RESTRICTIONS ON THE DISPOSITION OF STOCK OF THE COMPANY
3.1. Unless otherwise agreed unanimously by the Shareholders, Group AB
shall not transfer, dispose, assign, sell or encumber any of the Shares held by
Group AB, including those Shares of the Company held by any affiliated,
controlled by (directly or indirectly) or under common control with MHSA and/or
any of the members of Group AB in violation of the terms of this Agreement. All
certificates evidencing the Class A Shares and Class B Shares shall have the
following legend (translated into Spanish) placed on the face thereof and duly
noted in the Stock Registry Book of the Company:
"No transfer or encumbrance may be made of the shares evidenced by this
certificate, except upon receipt of the written approval of the Board of
Directors of the Company and compliance with the terms of the Articles of
Incorporation and the By-laws of the Company, as amended from time to
time."
3.2. As a condition to the transfer of Class A Shares and Class B Shares,
the assignee shall subscribe and abide by the terms of this Agreement.
ARTICLE IV
NON COMPETITION
4.1. During the term of the Services Agreement to be entered into by and
among DANONE, MHSA and the Company, and up to its termination, MHSA, PM and PM's
brothers VM or JM, and/or any company controlled directly or indirectly by any
of them or under common control with MHSA, PM, VM and JM, shall refrain from
distributing any dairy product included in the Services Agreement, and shall not
assist or advise third parties in connection therewith, within Argentine
territory. This undertaking will also apply to any corporation or other
enterprise or activity directly or indirectly controlled by MHSA and/or PM.
4.2. MHSA and PM shall indemnify CGD all damages caused as a consequence of
the violation or infringement to the non competition provision.
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4.3. In the event of violation of the non competition provision the
indemnification of the damages caused to CGD shall amount to US $ 50.000.000
(fifty million US Dollars). Nevertheless the Parties hereto acknowledge and
agree that monetary damages provided hereby are insufficient remedy for any
breach of the provision of this ARTICLE IV and agree that in addition to the
indemnification damages provided hereby, injunctive relief shall be awarded to
enjoin or restrain any breach of this ARTICLE IV.
ARTICLE V
OPTION TO PURCHASE CLASS A SHARES AND CLASS B SHARES
5.1. CALL OPTION. Class A Shares and Class B Shares shall not be
transferred unless the provisions of this Agreement and of the By-laws of the
Company are duly complied with by Group AB. Nevertheless, at any time after the
second anniversary from the start-up of activities of the Company, Group CD
shall have a call option right to purchase up to 19 % (nineteen percent) of the
outstanding capital stock and voting rights of the Company and all the members
of Group AB shall be obliged to sell the necessary number of Shares to such
extent, in proportion to their respective shareholdings in the Company, at the
price of US $ 1.000.000 (one million US Dollars), adjusted pursuant to the
variation of the net worth arising from the last financial statements of the
Company duly approved by the Shareholders' meeting, per each 1 % (one percent)
of the outstanding stock capital of the Company in the following cases:
(a) any change in the ACL or any other Argentine applicable regulation
presently in force regarding the rights conferred to minority shareholders
unless the minority shareholders shall irrevocably waive those rights;
(b) any change of control in MHSA other than the transfer of shares
exclusively made by Group AB in favor of PM, or his heirs, or VM's heirs,
or JM's heirs, or DALLPOINT, or any other company controlled by PM or
DALLPOINT, or to any company affiliated with, controlled by or subject to
common control with CGD;
(c) any decision of any member of Group AB to sell, assign, encumber,
transfer, pledge and/or dispose of any of its shares, voting rights or
subscription rights of the Company. In the event that any of the members of
Group AB shall decide to sell, assign, transfer, encumber, pledge and/or
dispose of any of its
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shares, voting rights or subscription rights, Group CD shall be
automatically entitled to exercise its call option on those particular
shares, voting rights or subscription rights without any restriction
whatsoever;
(d) any default under the Loan Agreements executed by and between Group AB
and CGD and Alfabanque on March 17, 2000 (the "Loan Agreements"). Any
amount due to Alfabanque or to CGD under the Loan Agreements may be
compensated with and/or set-off from the price to be paid by Group CD to
Group AB or any of the members of Group AB as the price for Group AB's
shares.
The transfer of the Shares shall take place within a 30 (thirty) day period
as from receipt of Group CD's call option notice by the members of Group AB.
Payment of the price of the Shares purchased by Group CD thereby shall be made
at the closing of the call option.
5.2. PUT OPTION. All the members of Group AB shall have a put option right
on any and all the shares they may hold in the Company at the time they exercise
said right, at a price of US $ 1.000.000 (one million US Dollars) adjusted as
provided in Section 5.1 per each 1 % (one percent) of the outstanding capital
stock of the Company. The put option right granted hereby may be exercised by
all the members of Group AB as from June 30, 2002. Group AB shall not be
entitled to exercise the put option if the Loan Agreements are in default.
The transfer of the Shares shall take place within a 30 (thirty) day period
as from receipt by Group CD of any of the members of Group AB's put option
notice. Payment of the price of the Shares purchased by Group CD shall be made
at the closing of the put option and simultaneously with the payment of any
amount due as principal, interest, expenses and legal fees by Group AB and/or
MHSA under the Loan Agreements.
5.3. FIRST REFUSAL RIGHT. In addition to the rights conferred on Section
5.1, Group CD shall have a first refusal right on 49 % (forty-nine percent)
minus 1 share of the Shares of the Company.
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(a) To such extent and in order to protect said first refusal right, the
members of Group AB shall not sell, assign, transfer, encumber, pledge and/or
dispose of any of their shares, voting rights and/or subscription rights, in
whole or in part, without previous notice to Group CD and the Company of their
intention to sell, assign, transfer, encumber, pledge and/or otherwise dispose
of those shares, voting rights and/or subscription rights. The price of the
Shares shall be the price set forth in Section 5.1 hereto. Upon receipt of Group
AB's notice, Group AB and Group CD shall negotiate on a bona fide basis during a
90 (ninety) day period all the terms and conditions related to the sale,
transfer, assignment, pledge, encumbrance and/or disposition of the Shares which
shall be included in the agreement to be executed within a 30 (thirty) day
period. Should Group AB and Group CD fail to reach an agreement on the terms of
the agreement to be executed by the parties, Group AB shall not sell, assign,
transfer, pledge, encumber and/or otherwise dispose of the Shares to any third
party for a price lower than the price set forth in Section 5.1 hereto.
(b) In the event that Group AB shall negotiate with a third bona fide party
the sale, transfer, assignment, pledge, encumbrance and/or disposition in any
way of the Shares, Group CD shall have a first refusal right to purchase said
Shares at the terms and conditions agreed upon by Group AB and the third bona
fide party. Group AB shall notify in writing to Group CD its intention to sell,
transfer, assign, pledge, encumber and/or otherwise dispose of the Shares and
the price, terms and conditions proposed by a third bona fide party. Upon
receipt of Group AB's notice, Group CD shall notify within a 90 (ninety) day
period, whether it is willing to purchase the Shares under such conditions.
Should Group CD fail to purchase the Shares, Group AB shall be entitled to sell,
transfer, assign, pledge, encumber and/or otherwise dispose of the Shares to
such third bona fide party with whom Group AB has carried out bona fide
negotiations and for the price and under those terms and conditions already
negotiated by and between Group AB and the third bona fide party and notified to
Group CD, within a 90 (ninety) day term. Should Group AB and the third bona fide
party fail to reach an agreement on the sale, transfer, assignment, pledge,
encumbrance, and/or disposition of the Shares within a 90 (ninety) day period as
from the termination of the 90 (ninety) day period granted to Group CD, Group CD
shall have a new first refusal right on the Shares under the exact terms and
conditions provided hereby.
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(c) The price to be paid by Group CD to Group AB for their Shares shall be
applied to cancellation of the loans granted to Group AB under the Loan
Agreements, including principal, interest, expenses and legal fees.
(d) The transfer, sale, assignment, encumbrance, pledge or disposition of
any of Class A Shares and of Class B Shares shall not be subject to this first
refusal right exclusively and only when such transfer, sale, assignment,
encumbrance, pledge or disposition is carried out in favor of PM, or his heirs,
or VM's heirs, or JM's heirs, or DALLPOINT, or a company controlled by PM,
DALLPOINT or MHSA.
ARTICLE VI
MISCELLANEOUS
6.1. RANCHOS. Group CD shall analyze as soon as possible and in good faith
the potential purchase of all the premises, facilities and machinery owned by
MHSA devoted to the milk processing plant located at Ranchos, Province of Buenos
Aires, at the price and under the terms and conditions to be mutually agreed
upon by MHSA and Group CD.
6.2. XXXXX PLANT. After the Shareholders' Meeting provided in Section 1.2
hereto, MHSA shall invoice the Company the construction costs of the Xxxxx Plant
up to a maximum amount of US $ 21,300,000 (twenty one million three hundred
thousand US Dollars) plus V.A.T. when applicable. Invoices shall be issued
periodically and paid by the Company after an audit process regarding the actual
cost of the effective completion of the works and the installation of the
equipment and machinery included in the relevant invoice. The audit process
shall not take in any case more than 30 (thirty) days as from the reception of
each of the invoices by the Company. The Company shall deduct from each invoice
an amount equivalent to 20 % (twenty percent) of the invoiced amount up to US $
5,000,000 (five million US Dollars). Such amount of US $ 5,000,000 (five million
US Dollars) shall be retained by the Company as guarantee that the Xxxxx Plant
complies with all the operational conditions set forth in Exhibit B hereto and
is in perfect working conditions. If the Xxxxx Plant is operational and in
perfect working conditions before or on June 30, 2001, the above mentioned
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amount of US $ 5,000,000 (five million US Dollars) shall be reimbursed to MHSA.
To that extent, MHSA shall notify the Company the completion of the Xxxxx Plant,
in order to allow its verification within 30 days. If the result of such
verification is satisfactory to the Company, it shall reimburse the amount
mentioned hereinabove within such term. In case the Company determines that
there are pending works to complete, MHSA shall have to perform such works, and
after its completion, shall notify the Company again so as to perform a new
verification and reimburse the above mentioned amount within 10 days. The
Parties agree that all the above mentioned works shall be completed by June 30,
2001. Otherwise, said amount shall be applied by the Company to the payment of
any work necessary to complete all operational conditions of the Xxxxx Plant.
Any amount exceeding US $ 21,300,000 (twenty one million three hundred thousand
US Dollars) plus V.A.T. shall be paid and supported by MHSA, including the
amounts of money necessary to have the Xxxxx Plant operational and in perfect
working condition. V.A.T. shall be canceled simultaneously with its application
as fiscal credit by the Company in its monthly V.A.T. tax return.
6.3. ADDITIONAL INVESTMENTS. The Shareholders agree that the activities to
be carried out by the Company shall require additional investments which are
presently estimated as of approximately US $ 25,800,000 (twenty five million
eight hundred thousand US Dollars), as specified in Exhibit C, and US $
6,800,000 (six million eight hundred thousand US Dollars), as provided in
Exhibit D. The investments provided in Exhibit D shall be depreciated pursuant
to Argentine GAAP and included within the cost to be charged by the Company to
MHSA and DANONE in addition to the costs provided in Exhibit 1 of the Services
Agreement. The investments shall be borne by all the Shareholders in proportion
to their respective shareholdings. These investments shall be financed as
follows: (a) US $ 21,300,000 (twenty one million three hundred thousand US
Dollars) with funds stemming from depreciation of fixed assets, and (b) US $
11,300,000 (eleven million three hundred thousand US Dollars) with the balance
of the capital contribution to be made by Group CD, in the Shareholders' Meeting
to be held in accordance with the Preemptive Rights Assignment Agreement.
6.4. INDEPENDENT CARRIERS. The Shareholders' agree that the Company shall
maintain the same legal status that MHSA and Xxxxxx X.X. granted to the
independent carriers and their personnel ("fleteros y ayudantes") as of August
2000, and shall keep
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the same contractual relationship, maintaining its current legal structure,
subject to those changes which may be advisable from time to time in accordance
with the applicable legislation in force and to provide the most efficient
administration of the Company.
6.5. INCORPORATION OF SERVICES STRUCTURE. The Parties agree that the
Company, within a period of 6 (six) months, shall employ a substantial number of
Xxxxxx X.X.'s employees, which currently provide to the independent carriers
some administrative services, such as the preparation and liquidation of
salaries, wages, taxes and social security monthly payments and the like. The
list of the employees to be employed by the Company is attached hereto as
Exhibit E.
6.6. NOTICES. All notices and other communications required or permitted to
be given hereunder shall be in writing and shall be delivered by hand or sent by
telex, cable, fax, postage prepaid or by registered, certified or express mail,
or reputable courier service, and shall be deemed given when so delivered by
hand, cable, or faxed, or if mailed, when received, as follows:
if to XXXXXX, as follows:
Xxxxxx 000, 00xx xxxxx
Xxxxxx Xxxxx, Xxxxxxxxx
Attention: Mr. General Manager
Telefax: 00-00-0000-0000
If to DANONE, as follows:
Xxxxxx 000, 00xx xxxxx
Xxxxxx Xxxxx, Xxxxxxxxx
Attention: Mr. General Manager
Telefax: 00-00-0000-0000
In both cases, with a copy to:
Marval, X'Xxxxxxx & Mairal
Av. Xxxxxxx X. Xxxx 000, 0xx xxxxx
Xxxxxx Xxxxx, Xxxxxxxxx
Attention: Xx. Xxxxxxxx X. Xxxxxxxxx
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Telefax: 00-00-0000-0000
If to PM, as follows:
Xx. Xxxxxxx X. Xxxx 000, 00xx xxxxx
Xxxxxx Xxxxx, Xxxxxxxxx
Telefax: 00-00-0000-0000
If to VM, as follows:
Xx. Xxxxxxx X. Xxxx 000, 00xx xxxxx
Xxxxxx Xxxxx, Xxxxxxxxx
Telefax: 00-00-0000-0000
If to JM, as follows:
Xx. Xxxxxxx X. Xxxx 000, 00xx xxxxx
Xxxxxx Xxxxx, Xxxxxxxxx
Telefax: 00-00-0000-0000
If to DALLPOINT, as follows:
Xx. Xxxxxxxxxx 000, 0xx xxxxx
Xxxxxx Xxxxx, Xxxxxxxxx Telefax:
54-11-4-327-3800
With a copy to:
Cibils Robirosa- Labougle- Ibanez
Xx. Xxxxxxxxxx 000, 0xx xxxxx
Xxxxxx Xxxxx, Xxxxxxxxx
Attention: Xxxxxxx Labougle/ Xxxxxxx Xxxxxx
Telefax: 00-00-0000-0000
and
If to the Company, as follows:
Xx. Xxxxxxx X. Xxxx 000, 00xx xxxxx
Xxxxxx Xxxxx, Xxxxxxxxx
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Attention: Managing Director
Telefax: 00-00-0000-0000
or in any case to such other address as hereinafter shall be notified as
provided in this Section 6.6 by any of the Parties to this Agreement to the
other Parties.
6.7. TERM OF THE AGREEMENT. This Agreement shall commence on the date
hereof and shall remain in force until the termination of existence and winding
up of the Company unless sooner terminated by a written agreement executed by
the Parties hereto.
6.8. PUBLICITY. No publicity release or announcement concerning the
transactions contemplated hereby shall be issued by any Party, either before or
after the execution of the Stock Purchase Agreement executed on the date hereof,
without the prior consent of the other Parties which shall be not unreasonably
withheld, except as such release or announcement may be required by applicable
law, in which case the Party making the release or announcement shall provide a
copy of such release or announcement (to the extent feasible, in advance) to the
other Party. The Parties will cooperate with each other in coordinating any
release concerning the transactions contemplated hereby and any such
announcement.
6.9. WAIVER. REMEDIES. No delay of any Party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof, nor shall any waiver
of any Party of any right, power or privilege hereunder, nor shall any single or
partial exercise of any right, power or privilege hereunder, preclude any other
or further exercise thereof or the exercise of any other right, power or
privilege hereunder.
6.10. NO RECOURSE AGAINST OTHERS. No Board member, officer, employee or
agent, in his capacity as such, of any Party shall have any liability hereunder
or for any claim related to this Agreement, other than those provisions of this
Agreement which shall be included in the By-laws of the Company.
6.11. ENTIRE AGREEMENT. This Agreement, together with the exhibits attached
hereto and hereby made a part hereof, constitutes the entire agreement between
the
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Parties with respect to the subject matter of this Agreement and supersedes all
other prior agreements or understandings of the Parties relating thereto. To the
extent that there is any conflict or inconsistency between this Agreement and
any other agreement or document signed by the Parties hereto, including the
By-laws of the Company, this Agreement shall prevail.
6.12. AMENDMENT. This Agreement may be modified or amended, and any
provision hereof may be waived, only by written agreement of the Parties.
6.13. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original but all of which together shall constitute a
single instrument.
6.14. GOVERNING LAW. LANGUAGE. ARBITRATION. This Agreement shall be
governed by and construed in accordance with the laws of Argentina without
reference to the choice of law principles thereof. This Agreement and all other
agreements, instruments and notices referred to herein or supplementary to this
Agreement shall be prepared, furnished in, and governed and controlled by the
English language except for the exhibits drafted in Spanish language.
Any and all disputes arising out of or in connection with the negotiation,
execution, interpretation, performance and nonperformance of this Agreement
shall be solely and finally settled by a board of 3 (three) arbitrators in
accordance with the Rules of Conciliation and Arbitration of the International
Chamber of Commerce (the "ICC Rules"). The Parties agree that the award of the
arbitrators shall be the sole and exclusive remedy between them regarding any
claims, counterclaims, issues or accountings presented to the arbitrators,
irrespective of the magnitude thereof.
One arbitrator shall be appointed by Group AB, another arbitrator shall be
appointed by Group CD and the third arbitrator shall be selected by the two
arbitrators appointed by the Parties, or failing agreement within 15 (fifteen)
days after both arbitrators have been appointed, by the ICC, in accordance with
the ICC Rules.
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The Party submitting a dispatch to arbitration shall so notify to the other
Party in writing in accordance with the ICC Rules, and such notice shall be
accompanied by the name of the arbitrator selected by the Party serving the
notice. If the other Party fails to select an arbitrator within 30 (thirty) days
after receipt by such Party of the notice of the intent to arbitrate, the second
arbitrator shall be selected by the International Chamber of Commerce in New
York City, United States of America.
All arbitration proceedings shall be conducted in the Spanish language
pursuant to the ICC Rules. All such proceedings shall be conducted in Buenos
Aires, Argentina. The Parties hereto agree to facilitate the arbitration by: (i)
making available to the arbitrators for inspection and extraction all documents,
books, records and personnel under their control as the arbitrators shall
determine to be relevant to the dispute; (ii) conducting arbitration hearings to
the greatest extent possible on successive, contiguous days; and (iii) observing
strictly the time periods established by the ICC Rules or by the arbitrators for
the submission of evidence and briefs.
Any decision or award of the arbitral tribunal shall be final and binding
upon the Parties to the arbitration proceeding. The Parties hereby waive to the
fullest extent permitted by law any rights to appeal or to review such award by
any court or tribunal. The Parties agree that the arbitral award may be enforced
against the Parties to the arbitration proceeding or their assets wherever they
may be found and that a judgment on the arbitration award may be entered in any
court having jurisdiction over the Parties or their assets.
6.15. CAPTIONS AND EXAMPLES. All section titles or captions contained in
this Agreement are for convenience only, shall not be deemed a part of this
Agreement and shall not affect the meaning or interpretation of this Agreement.
Unless otherwise indicated, all references herein to numbered sections or
exhibits are to section of and exhibits to this Agreement. Terms such as
"herein", "hereof", "hereunder" and the like shall refer to this Agreement as a
whole and, unless the context otherwise requires, not to any particular section
or subsection hereof.
6.16. RIGHTS OF THIRD PARTIES. Except as otherwise expressly provided in
this Agreement, nothing in this Agreement is intended, or shall be construed to
confer upon
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or give any person o entity other that the Parties to this Agreement any rights
or remedies under or by reason of this Agreement.
6.17. CONFIDENTIALITY. The Parties agree that any of them would be
irreparably damaged if any confidential information about the business and
affairs to this Agreement were to be disclosed to any unauthorized persons, and,
accordingly, all Parties, shall not, at any time, without the prior written
consent of the other Parties, disclose or use any such confidential information
except as permitted by applicable law or as a consequence of a judicial order.
IN WITNESS HEREOF, the Parties have caused this Agreement to be duly executed in
five counterparts, one for XXXXXX, one for DANONE, one for PM, VM and JM, one
for DALLPOINT and one for the Company.
----------------------------------------
Xxxxxx X.X.
By: Xxxxxxxx X. Xxxxxxxxx
------------------------------------
Title: President
---------------------------------
----------------------------------------
Danone S.A.
By: Xxxxxxxx X. Xxxxxxxxx
------------------------------------
Title: Attorney-in-fact
---------------------------------
/s/ Xxxxxxx Xxxxxxxxxx
----------------------------------------
Xxxxxxx Xxxxxxxxxx
/s/ Xxxxxxxx X. Xxxxxxxxxx
----------------------------------------
Xxxxxxxx X. Xxxxxxxxxx
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/s/ Xxxx Xxxxxxxxxx
----------------------------------------
Xxxx Xxxxxxxxxx
/s/ Xxxxxx Xxxxx
----------------------------------------
Dallpoint Investments Ltd.
By: Xxxxxx X. Xxxxx
Title: Attorney in fact
----------------------------------------
Logistica La Serenisima S.A.
By: /s/ Xxxxxxx Xxxxxxxxxx
------------------------------------
Title: President
---------------------------------
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