Exhibit (d)(4)
[Please note that the following is an English translation of a document written
in Spanish which is also attached as an exhibit to the Schedule TO. Although
Xxxxxxxxx believes the following English translation to be an accurate
translation of the original document written in Spanish, the following English
translation is qualified in its entirety by reference to the original document
written in Spanish.]
By and Between PRIMOR ALIMENTOS, C.A., a corporation created and
domiciled at Caracas, initially registered under the name of ALPROVENCA,
Alimentos y Productos Venezolanos, C.A., at the Fifth Companies Registration
Office of the Judicial Circumscription of the Federal District of Miranda State,
on the 23rd of September of 1998, under number 42, Volume 251-A-Qto, being its
denomination modified by the current one, as duly recorded at the Commercial
Registry Office of the Judicial Circumscription of the Federal District of
Miranda State, on the 13th of December of 2000, under number 49, Volume 491-A-
Qto, hereinafter referred to as "Xxxxxx Xxxxxxxxx", represented hereupon by its
Manager Xxxxxxx Xxxxxxx X., Venezuelan, of age, domiciled at the aforementioned
domicile, bearer of the Identity Card No. 6,818,047, duly authorized by the
document hereto attached (Addendum A), and PRIMOR INVERSIONES C.A., a
corporation constituted and domiciled at Caracas, duly registered at the Fifth
Companies Registration Office of the Judicial Circumscription of the Federal
District of Miranda State, on the 9th of January of 2001, under number 81,
Volume 497-A-Qto, hereinafter referred to as "Primor Inversiones" or the
"Offerer", jointly with Xxxxxx Xxxxxxxxx, hereinafter referred to as "Primor",
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represented hereupon by its Manager Xxxxxxx Xxxxxxx X., above mentioned, duly
authorized by the document hereto attached (Addendum B), of the one part, and
MAVESA S.A., of the other part, a business association originally registered at
the Registry of Commerce of the Court of First Instance having jurisdiction over
Business Matters of the Federal District, on the 19th of May of 1949, under
number 552, Volume 2-B, which last reform has been duly registered at the
Companies Registration Office of the Judicial Circumscription of the Federal
District of Miranda State, on the 28th of August of 2000, under number 39,
Volume 148-A-Pro, hereinafter referred to as "Mavesa", represented hereupon by
Xxxxxxxx Xxxxxxx xx Xxxxxxxx, Venezuelan, of age, bearer of the Identity Card No
3,185,604 and Xxxxxxxxx Xxxxx, Spanish, of age, domiciled at the aforementioned
domicile, bearer of the Identity Card No. 81,786,776, duly authorized by the
Minutes of the Board of Directors dated on January 19, 2001, herewith enclosed
(Addendum C), this agreement is entered into (with all the addenda hereto
attached, hereinafter called the "Agreement"), under the following covenants and
conditions, to wit:
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FIRST: BACKGROUND
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1) On the 9th of January of 2001, Xxxxxx was informed about the negotiations
that were being carried out by a group of stockholders and American Depositary
Receipts' holders ("ADRs"), which represent stocks of Mavesa. Subsequently,
Xxxxxx had cognizance that such conversations were being held with Primor. These
negotiations concluded upon the celebration, on this day, of an agreement whose
contents have been informed to Mavesa by such stockholders.
2) The Board of Directors of Mavesa, in the meeting carried out on the 19th of
January of 2001, analyzed the contents of the aforementioned agreement,
specially the addendum referring to the main terms and conditions which the bids
to be carried out by Primor would be subject to, both in Venezuela and the
United States of America, hereinafter referred to as the "Bids".
3) The Board of Directors of Mavesa, taking into account such information, the
provisions of Section Ten of the company's Articles of Incorporation and by-
laws, which compels itself to "always direct its activity towards the
achievement of the company's best interests and the creation of profits for
stockholders", and the provisions of the Rules on Takeover Bids of Corporations
that make public offering of its
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stocks and other rights over the same, published at the Official Gazette of the
Bolivarian Republic of Venezuela No. 37.039, on the 19th of September of 2000,
hereinafter called the "Rules on OPAs", specially article 2 of section 11 and
sections 31 et seq, issued an internal Regulation of general application,
hereinafter called the "Regulation", which will regulate the conduct of Mavesa
in the event that a takeover bid is entered ("Takeover Bids") in order to apply
for the company's outstanding stocks or ADRs (the "Regulation"). The Regulation
shall be applicable to the bids entered by Primor, to any rival offer, if any,
as well as to any other takeover bid that may arise thereinafter.
SECOND: THE REGULATION
-----------------------
1) Mavesa, in order to xxxxxx the free development of Bids, to avoid any
activity which may hamper the same, and to furnish information about a
competitive market that may increase the potential profits of stockholders and
ADRs' holders, binds itself to strictly observe the provisions of this
Regulation, which contents are noted in Addendum D, specially in relation to the
items listed herein below:
A) Rules of conduct regarding the general management of Mavesa during the period
of takeover bids, placing particular emphasis on fully
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allowing and not hindering rival takeover bids, in the stockholders' and ADRs'
holders interest.
B) Rules concerning the exercise of preferential rights provided in Section Six
of the Incorporation - Bylaw instrument of Mavesa.
C) An extraordinary stockholders' meeting call, in order to appoint a new Board
of Directors and stockholders' representatives in the event that any takeover
bid is successful.
D) Rules regarding the criteria to determine that a rival bid may be considered
by the Board of Directors more beneficial than the initial tender.
E) Rules in relation to treasury stocks.
F) Rules relating to the information to be provided to whom may enter Takeover
Bids.
2) Xxxxxx agrees to follow the aforementioned conduct and to act objectively
and impartially, in the event that a third party other than Primor initiate a
Takeover Bid.
3) During the effectiveness of this Agreement, Mavesa commits itself not to
alter the Regulation.
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THIRD: ANALYSIS OF THE TERMS AND CONDITIONS OF THE AGREEMENT ENTERED INTO BY AND
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BETWEEN PRIMOR AND A GROUP OF STOCKHOLDERS ADRs' HOLDERS OF MAVESA
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As recorded in the Minutes of the Board of Directors of Mavesa, contained in
Addendum C, and taking into account the recommendation given by the OPAs
Committee of Mavesa, after consulting the financial and legal advisors, Xxxxxx
deems that the price and the terms and conditions of the Bids, if carried out
in the way and manner agreed upon herein before, reflect appropriately on the
value of its stocks and ADRs, being beneficial for stockholders and ADRs'
holders. Consequently, the Board of Directors of Mavesa recommends the terms and
conditions of the Bids, notwithstanding the fact that rival bids more alluring
for stockholders and ADRs' holders of Mavesa may arise in the future. Addendum
E, hereto attached, contains the press release that Xxxxxx and Primor will
jointly disclose, in accordance with the Capital Market Law and the Rules
Relating to the Transparency of the Capital Market.
Accordingly, if the bids are carried out under the terms and conditions agreed
upon between Primor and the stockholders aforementioned, Mavesa, by means of its
Board of Directors, will disclose the objections
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to such bids, recommending its acceptance, provided that there are no rival bids
which the Board of Directors of Mavesa deems more beneficial for stockholders
and ADRs' holders, in accordance with the rules established in Section Four of
the Regulation. Mavesa hereby empowers Primor to include the Board of Directors'
recommendation in the Bids reports.
The Board of Directors of Mavesa shall not withdraw or alter the recommendation
regarding the bids, except for the rival bids which the Board may consider more
beneficial for stockholders or ADRs' holders, or in the event that such fact is
demanded in order to comply with the obligations that the Law and Xxxxxx's By-
laws impose on managers.
FOURTH: COMPENSATION IN THE EVENT THAT A RIVAL BID IS SUCCESSFUL
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Taking into account that the Bids submitted by Primor would cause a favorable
impact on the quotation price of Mavesa's stocks and ADRs; that the Bids price
is higher than the average quotation registered during the last six (6) months;
that the bids submittal adds value to the company and benefits stockholders and
ADRs' holders; that takeover bids more favorable than the offers may arise,
which would benefit both stockholders and ADRs' holders, as well as the rival
environment;
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Mavesa, taking into consideration the efforts put forth by Primor to enter bids
and in acknowledgement of its contribution to the creation of profits for
stockholders and ADRs' holders and the development of free competence upon
setting the price of Mavesa's stocks, will pay Primor, in the event that a rival
takeover bid submitted by a company other than Primor and not related to the
latter, within twelve (12) months following the date of these presents, is
successful, a sum equivalent to one and a half percent (1.5%) of the total
amount paid to the stockholders and ADRs' holders who accepted the winning bid.
Such payment will be effected in cash, exclusively in American Dollars, within
the ten (10) working days of the Stock Exchange following the payment of the
price provided in the winning bid. Upon default in the payment of said amount
within the term above indicated, interests will accrue at an annual rate of nine
percent (9%).
The Board of Directors of Mavesa will neither demand nor xxxxxx bids for the
purchase of stocks or ADRs of Mavesa or any of its Subsidiaries or merge
proposals, company restructuring, strategic associations, recapitalizations or
similar operations with Mavesa or any of its Subsidiaries. The Board of
Directors may provide information about Mavesa and its Subsidiaries and may
participate in discussions or
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negotiations relating to the above mentioned operations, solely in the following
cases: (1) when a written unsolicited cash takeover proposal, is previously
received; and (2) in the event a rival bid is entered, which does not involve
the total amount of stocks and ADRs of Mavesa that stockholders or ADRs' holders
may wish to sell independently from the minimum condition. In both cases, it
will be necessary that the Board of Directors conclude in advance that such
proposal or offer is more beneficial for stockholders and ADRs' holders than the
Bids, and that the Offerer celebrate a confidentiality agreement under the terms
substantially similar to the confidentiality agreement indicated in Section
Five. Notwithstanding the aforementioned, the Board of Directors may supply
information about Mavesa and its Subsidiaries to any third party who has
submitted a rival bid and has entered into a confidentiality agreement under the
terms and conditions similar to the confidentiality agreement indicated in
Section Five.
FIFTH: Except for the provisions of Section four, this Agreement will remain in
------
force until the 30th of June of 2001, or until the previous date on which the
Bids conclude without the purchase of stocks or ADRs.
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SIXTH: EXPENSES
---------------
The expenses arising from this Agreement shall be paid and borne by the party
who has incurred them.
SEVENTH: NOTICES
----------------
To all legal effects arising from these presents, any notification regarding
this Agreement shall be deemed effectively given by means of the remittance of
the respective written notices, at the addresses listed herein below:
Primor:
Cuarta Transversal de los Cortijos de Xxxxxxx
Centro Empresarial Polar, 4th floor
Los Cortijos de Xxxxxxx
Caracas
Telephone: 000-0000
Fax: 000-0000
Mavesa:
Avenida Principal de los Cortijos de Xxxxxxx
Edificio Mavesa
Caracas
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Attention: Xxxxxxxx Xxxxxxx xx Xxxxxxxx
Telephone: 000-0000
Fax: 000-0000
Any of the parties hereto may modify its legal domicile by notifying in writing
the other party. Nevertheless, as long as such modification has not been
notified, the legal domiciles will remain the same.
EIGHTH: ARBITRATION
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The parties hereto agree to settle any controversy arising from this Agreement
in good faith and promptly. In the event that any discrepancy or dispute may
arise in relation to these presents, its interpretation, validity, effectiveness
or execution, a period of seven (7) consecutive days will be granted, so that
the parties may come to an out-of-court settlement. Such period of time will be
extended upon the mutual agreement of the parties hereto.
Having elapsed the above mentioned period of time or upon not reaching an
agreement to extend such a term, the parties hereto agree that any controversy
that may arise in relation to these presents, its interpretation, validity,
effectiveness, execution and any matter concerning the grounds of the
controversy, will be settled definitively by an out-of-court arbitration,
applying solely the legislation of the
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Bolivarian Republic of Venezuela, in the City of Caracas, in Spanish language,
in accordance with the Commercial Arbitration Law of the Bolivarian Republic of
Venezuela, and under the following rules, namely:
(i) The arbitration will be carried out by three (3) impartial arbitrators, who
will be appointed in the manner hereinafter set forth: each party hereto will
appoint one arbitrator and the arbitrators chosen by each of the parties, in its
turn, will appoint the third arbitrator, who will be the President of the
Arbitration Court. The appointment of the Arbitration Court's members shall not
exceed a maximum of ten (10) consecutive days, as of the date of application for
arbitration, date on which the Arbitration Court shall be created. If the
arbitrators elected by the parties hereto fail to agree as to the appointment of
the third umpire, then, during the afternoon of the following working day after
the expiration of the ten (10) consecutive days above mentioned, each party
hereto will place three (3) slips within a box, each of which will bear the name
of an arbitrator candidate. Once all the slips have been duly introduced within
the box, one of them will be drawn by lot, which will indicate the name of the
third arbitrator. The person who will carry out the draw will be elected by lot.
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(ii) In any case, arbitrators shall have the following qualifications, namely:
(a) knowledge of Spanish and English language; (b) impartial and without
conflict of interests; (c) attorney-at-law and cognizant of the Venezuelan and
American legislation and commercial customs; (d) previous experience on
commercial arbitration matters.
(iii) The summons to reply to the arbitration briefs and other notices during
the proceedings will be carried out in the manner and at the legal domicile of
the respondent/s, in accordance with the provisions of Section Seven of this
Agreement.
(iv) The formalities of the arbitration proceedings will be initiated on the day
following the creation of the Arbitration Court.
(v) The parties hereto will have thirty (30) consecutive days, as of the initial
date of the arbitration proceedings, in order to submit evidence and arguments.
Such period of time shall not be extended, unless the parties hereto file a
mutual agreement in writing and the members of the Arbitration Court issues a
writ duly founded.
(vi) Umpires will have thirty (30) consecutive days, as of the expiration of the
term to furnish evidence and arguments by the parties, in order to grant the
arbitration award. Such term shall not be extended unless
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the parties hereto gives their consent in writing and the members of the
Arbitration Court issues a writ duly founded.
(vii) The arbitration award shall be in writing and shall outline the issues in
dispute and the reasons of fact and matters of law to found the decision
contained in the award.
(viii) The award shall be final and binding on the parties hereto, and shall
include a decision in relation to the costs, including reasonable fees and
expenses for the attorneys-at-law. Upon submitting the controversy to an
arbitration proceeding, under the provisions of this section, the parties agree
that they shall not file any of the judicial resources against awards which they
are entitled to.
(ix) The costs, including reasonable fees and expenses incurred by the
attorneys-at-law, shall be borne by the losing party in accordance with the
arbitration award. If no party wins completely, the costs arising from the
arbitration proceedings shall be allocated proportionately between the parties,
except for the fees and expenses of the parties' attorneys-at-law, which shall
be paid by each party, respectively.
(x) The award shall be enforced judicially at any court having jurisdiction over
such matters or over the parties hereto or over the parties' assets.
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Upon the execution of this Agreement, the parties hereto agree and accept the
application of the arbitration proceedings contained in this section and waive
expressly their right to file any motion based on lack of jurisdiction.
The parties hereto and the members of the Arbitration Court shall maintain
strict confidentiality in relation to the proceedings, the information provided
by the parties and the result of the arbitration award, unless such information
must be disclosed under a legal or judicial requirement.
NINTH: COMMUNICATIONS
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All public announcements, press releases and notifications to public entities in
relation to this Agreement and the Bids shall be previously discussed and
coordinated by the parties hereto, and shall be carried out under those terms
that preserve the stockholders' rights and comply with the Venezuelan and
American Rules.
TENTH: COOPERATION
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The parties agree to cooperate and to inform the Sale Agent of Xxxxxx, the ADRs'
bailee of Mavesa and the Agents of the Bids so that they will cooperate in
everything relating to the Bids proceedings and its acceptance, supplying
information about the ownership and
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stock and ADR availability, the encumbrances over the same and the exercise of
preferential rights.
ELEVENTH: APPLICABLE LEGISLATION
--------------------------------
This Agreement shall be subject to the legislation of the Bolivarian Republic of
Venezuela.
TWELFTH: JURISDICTION AND LEGAL DOMICILE
----------------------------------------
To all legal effects arising from this Agreement, the city of Caracas is elected
as the special and exclusive domicile to all the effects of these presents; the
parties hereto agree to submit themselves to the jurisdiction of the Courts of
the aforementioned city.
Three (3) copies of the same tenor and to a sole effect are signed.
Caracas, on the 21st day of January of 2001.
On behalf MAVESA S.A.
Xxxxxxxx Xxxxxxx de Xxxxxxxx
Xxxxxxxxx Xxxxx
On behalf PRIMOR INVERSIONES, C.A.
Xxxxxxx Xxxxxxx X.
Manager
On behalf PRIMOR ALIMENTOS, C.A.
Xxxxxxx Xxxxxxx X.
Manager
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