Exhibit 4.(b)(2)
SENDAS DISTRIBUIDORA S.A.
SHAREHOLDERS AGREEMENT
By this private instrument, the undersigned, hereinafter collectively referred
to as "Shareholders":
A) SENDAS S.A., a company with its principal place of business in the City of
Sao Joao de Meriti, State of Rio de Janeiro, at Xxxxxxx Xxxxxxxxxx Xxxxx, Xx.
0000, Xxxxxx Xxxx Xxxxxxxxx, enrolled with the National Register of Legal
Entities of the Ministry of Finance under CNPJ/MF No. 31.911.548/0001-17, herein
duly represented pursuant to its By-Laws (hereinafter referred to as "SENDAS");
and
B) COMPANHIA BRASILEIRA DE DISTRIBUICAO, a company with its principal place of
business in the City of Sao Paulo, State of Sao Paulo, at Xxxxxxx Xxxxxxxxxx
Xxxx Xxxxxxx Xx. 0000, enrolled with the National Register of Legal Entities of
the Ministry of Finance under CNPJ/MF No. 47.508.411/0001-56, herein duly
represented pursuant to its By-Laws (hereinafter referred to as "CBD");
C) SE SUPERMERCADOS LTDA., a company with its principal place of business in the
State of Sao Paulo, at Xx. Xxxxxxxxxx Xxxx Xxxxxxx Xx. 0000, enrolled with the
National Register of Legal Entities of the Ministry of Finance under CNPJ/MF No.
01.545.828/0001-98, herein duly represented pursuant to its Articles of
Association (hereinafter "SE"); and
D) NOVASOC COMERCIAL LTDA., a company with its principal place of business in
the Capital City of the State of Sao Paulo, at Xx. Xxxxxxxxxx Xxxx Xxxxxxx Xx.
0000, 0xx xxxxx, enrolled with the National Register of Legal Entities of the
Ministry of Finance under CNPJ/MF No. 03.139.761/0001-17, herein duly
represented pursuant to its Articles of Association (hereinafter "NOVASOC");
ITEM 20
CBD, SE and NOVASOC hereinafter collectively referred to as "CBD Companies",
and, as intervening consenting parties,
E) SENDAS DISTRIBUIDORA S.A., the new corporate name of Companhia Distribuidora
Xxxxx Furtado, a company with its principal place of business in the City of Sao
Joao de Meriti, State of Rio de Janeiro, at Rodovia Presidente Xxxxx No. 4674 -
part occupancy, enrolled with the National Register of Legal Entities of the
Ministry of Finance under CNPJ/MF No. 06.057.223/0001-71, herein duly
represented pursuant to its By-Laws (hereinafter referred to as "Company");
F) XXXXXX XXXXXXX XXXXXX, Brazilian, married, businessman, resident and
domiciled in the City of Rio de Janeiro, State of Rio de Janeiro, bearer of
Identity Card RG No. 1.183.197 IFP/RJ, issued on July 17, 1967, enrolled with
the Individual Taxpayers Register of the Ministry of Finance under CPF/MF No.
000.000.000-00;
G) SENDAS EMPREENDIMENTOS E PARTICIPACOES LTDA, with its principal place of
business in the Municipality of Sao Joao do Meriti, State of Rio de Janeiro, at
Xxxxxxx Xxxxxxxxxx Xxxxx Xx. 0000, Xx 4.5, enrolled with the National Register
of Legal Entities of the Ministry of Finance under CNPJ/MF No.
30.630.362/0001-27, herein duly represented pursuant to its By-Laws (hereinafter
referred to as "SENDAS EMPREENDIMENTOS");
H) PAO DE ACUCAR S.A. INDUSTRIA E COMERCIO, with its principal place of business
in the City of Sao Paulo, State of Sao Paulo, at Xxxxxxx Xxxxxxxxxx Xxxx Xxxxxxx
Xx. 0000, enrolled with the National Register of Legal Entities of the Ministry
of Finance under CNPJ/MF No. 61.550.182/0001-69, herein duly represented
pursuant to its By-Laws (hereinafter referred to as "PAIC");
I) PENINSULA PARTICIPACOES LTDA., with its principal place of business in the
City of Sao Paulo, State of Sao Paulo, at Xxxxxxx Xxxxxxxxxx Xxxx Xxxxxxx Xx.
0000, 0xx floor, enrolled with the National Register of Legal Entities of the
Ministry of Finance under CNPJ/MF No. 58.292.210/0001-80, herein duly
represented pursuant to its By-Laws (hereinafter referred to as "PENINSULA");
J) NOVA PENINSULA PARTICIPACOES S.A., a company organized and existing under the
laws of the Federative Republic of Brazil, with its principal place of business
in the City of Sao Paulo, State of Sao Paulo, at Xxxxxxx Xxxxxxxxxx Xxxx Xxxxxxx
Xx. 0000, 0xx floor, enrolled with the National Register of Legal Entities of
the Ministry of Finance under CNPJ/MF No. 66.056.524/0001-02, herein duly
represented pursuant to its By-Laws (hereinafter referred to as "NOVA
PENINSULA"); and
K) XXXXXX DOS XXXXXX XXXXX, Brazilian, legally separated, businessman, bearer of
Identity Card RG SSP/SP No. 1.965.961, enrolled with the Individual Taxpayers
Register of the Ministry of Finance under CPF/MF No. 000.000.000-00, with
offices in the City of Sao Paulo, State of Sao Paulo, at Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxxx Xx. 0000.
Whereas:
1) Subject to the terms and conditions of the Investment and Joint Venture
Agreement executed between CBD and SENDAS, the Shareholders intend to
share the exercise of the Company's equity control;
2) The Investment and Joint Venture Agreement established that the capital
stock of the Company would be divided between CBD and SENDAS in the
proportion of 50% each; CBD, with the consent of SENDAS, decided that
the shares to which it would be entitled representing 50% of the
capital stock of the Company be distributed among itself, CBD, and two
of its controlled companies to be merged into CBD in due course, SE and
NOVASOC; on the date hereof, the capital composition of the Company is
the one described in the chart included in item 3.2 below;
3) The Shareholders established the Company as a joint venture with the
purpose of operating in the retail market in general, through the
combination of the operating activities of the two (2) chains in the
State of Rio de Janeiro;
4) The Shareholders, as specified in the chart included in item 3.2
below, are the holders of shares representing the total capital
stock of the Company;
5) SENDAS EMPREENDIMENTOS exercises the direct Equity Control of SENDAS
and is the lawful owner and possessor of 90,230,408 its common shares,
all of which with no par value representing approximately
ninety-point-two-three percent (90.23%) of the voting capital and the
total capital stock of SENDAS;
6) XXXXXX XXXXXXX XXXXXX holds 759,094,476 quotas, representing
approximately 65.09% of the total quota capital of SENDAS
EMPREENDIMENTOS; and
7) PAIC, PENINSULA, NOVA PENINSULA and XXXXXX XXXXX, jointly, are the
lawful holders and possessors of 45,046,424,065 common shares and
7,340,566,125 preferred shares issued by CBD, representing 79.95% of
the voting capital and 46.16% of the total capital stock of CBD;
8) CBD controls SE and NOVASOC and is the holder of eight hundred and
ninety-seven million, one hundred and twenty-six thousand and nineteen
(897,126,019) quotas issued by SE and 1,000 quotas issued by NOVASOC;
9) In view of the provisions of whereas clause (2) above, for the purposes
of this Agreement, CBD, SE and NOVASOC shall be deemed to be one and
only shareholder; therefore, whenever this Agreement refers to
"Shareholder", such reference shall mean SENDAS, severally, or CBD
Companies, jointly.
The Shareholders hereby resolve to enter into to this Shareholders Agreement,
for the purposes and effects of Article 118 of Law No. 6404, of December 15,
1976, in accordance with the clauses and conditions established below,
which have been freely covenanted among the Shareholders and the Intervening
Consenting Parties, all of whom undertake to observe them and cause them to be
observed.
ARTICLE I
DEFINITIONS
1.1. For the purposes of this Agreement, the following definitions are
adopted:
a) "Class A Common Share" is a Class A type common share issued pursuant
to Article 16, III, of the Corporation Law, which assures the holder
thereof the right to elect, in a separate voting procedure, one (1)
member of the Board of Directors of the Company;
b) "Shareholder" is SENDAS, severally, or CBD Companies, jointly, while
"Shareholders" are SENDAS, CBD, SE and NOVASOC jointly;
c) "Offered Shareholder" has the meaning ascribed to it in letter (a) of
item 6.2 below;
d) "Offering Shareholder" has the meaning ascribed to it in letter (a) of
item 6.2 below
e) "Shares" are (i) all common and preferred shares issued by the
Company held, or that may be held in the future, by any of the
Shareholders for any reason and on any account, including, but not
limited to, as a result of subscription, purchase, split, distribution
of stock dividends, distribution of dividends with payment in shares
and capitalization of profits or other reserves, or that may be held by
any Shareholders as a result of mergers, consolidations or spin-offs;
(ii) securities that are convertible into common and/or preferred
shares issued by the Company and held, or that may be held in the
future, by the Shareholders; (iii) stock options to purchase common
and/or preferred shares issued by the Company; (iv) subscription
bonuses and subscription rights for common and/or preferred shares of
the Company held, or that may be held in the future, by the
Shareholders; and (v) any other shares to which voting rights have been
attributed, whether by virtue of legal and/or statutory provisions;
f) "Agreement" is this Shareholders Agreement;
g) "Investment Agreement" means the Investment and Joint Venture Agreement
executed by SENDAS and CBD on February 5, 2004;
h) "Acquirer" has the meaning ascribed to it in item 6.6.1 below;
i) "Transfer" is the act of selling, assigning, contributing to the
capital of another company and/or any other act that results in the
transfer or disposal of the rights relative to any Share, while
"Transfer of" is understood as the effect of any such acts;
j) "Committees" has the meaning ascribed to it in item 4.1.11 below;
k) "Recitals" are the recitals contained in the preamble of this
Agreement;
l) "SENDAS Controller" is Xx. XXXXXX XXXXXXX XXXXXX, or any company that
is or may become directly or indirectly controlled by him;
m) "CBD Controller" is Mr. ABILIO DOS XXXXXX XXXXX, or any company that is
or may become directly or indirectly controlled by him;
n) "Equity Control" means the direct or indirect title to ownership rights
that on a permanent basis assure preponderance in corporate resolutions
and the power to elect the majority of the management;
o) "By-Laws" means the By-Laws of the Company to be approved by the
Shareholders in a Special Shareholders' Meeting, in the form of the
draft that constitutes an Exhibit to the Investment Agreement, as
well as subsequent statutory amendments that may be implemented
pursuant to this Agreement;
p) "Encumbrance" is the generic designation given to any type of pledge,
burden or encumbrance regardless of its title and/or nature, including,
but not limited to, pledge, bond, usufruct and chattel mortgage;
q) "IPC" is the Consumer Price Index (Indice de Precos ao Consumidor)
published by the Economic Research Institute Foundation (FIPE);
r) "Key Performance Indicators (KPIs)" are performance measures of the
Company's management calculated based on sales per square meter, sales
per employee, man-hours effectively worked, check-out and, with respect
to the Company, based on earnings before interest, tax, depreciation
and amortization (EBITDA), earnings before interest and taxes (EBIT),
net income and return on capital employed (ROCE);
s) "Corporation Law" is Law No. 6404/76, as subsequently amended;
t) "Joint Participation" is the sum of the participations of the
Shareholders in the voting capital of the Company;
u) "Term for First Refusal" has the meaning ascribed to it in letter (c)
of item 6.2 below;
v) "Annual Investments Program" is the program approved by the Board of
Directors of the Company which defines the Company's plan for
investments and strategic activities at the beginning of each fiscal
year;
w) "Exclusive Territory" is the territory where the Company operates,
i.e., the State of Rio de Janeiro with the expansion possibility into
the State of Espirito Santo; and
x) "Transfer Value" is the fair market price of the Shares on a given date
("Date") calculated by a prime investment bank selected by mutual
agreement between the Shareholders with proven independence from such
Shareholders and which is experienced in appraising companies in the
retail field; in case the Shareholders fail to agree on the choice of
the referred investment bank, the Chairman of the Chamber of
Conciliation and Arbitration of Fundacao Xxxxxxx Xxxxxx (Camara de
Conciliacao e Arbitragem da Fundacao Xxxxxxx Xxxxxx - FGV) or, if
he/she is not able to choose, the Chairman of the Chamber of
Arbitration of the Market, of the Bovespa (Sao Paulo Stock Exchange),
will be responsible for making such choice. Given that the Company,
unlike other companies in the sector, has no real estate properties of
its own, the calculation of the Transfer Value shall be based on one of
the following criteria, or on a combination of any of them: (i)
multiple of sales, (ii) multiple of EBITDA, and (iii) discounted cash
flow. Regardless of the criterion adopted for the evaluation, the
Transfer Value shall have a minimum value ("Minimum") equal to the
results from the application of a multiple of forty percent (40%) of
the Company's gross sales for the twelve (12) months prior to the Date.
If the Transfer Value is greater than the Minimum, the Transfer Value
shall be limited to a maximum value ("Maximum") equal to the market
value of CBD on the Date, as assessed by the same investment bank,
using any one of the above criteria or a combination of any of them. If
the assessed Transfer Value is greater than the Minimum, the Transfer
Value may not surpass the Maximum. The assessment of the Transfer Value
shall be completed within a period of thirty (30) calendar days as of
the date the mentioned investment bank is contracted by the
Shareholders.
y) "CBD Companies" are CBD, SE and NOVASOC, when referred to jointly.
ARTICLE II
BASIC PRINCIPLES OF THE COMPANY
2.1. This Agreement has the purpose of disciplining the relations between
the Shareholders in their capacity of holders of Shares of the Company,
thereby establishing the terms and conditions to which certain matters
in the Company's interest shall be conducted as established in this
Agreement and in its By-Laws. For such
purpose, the Shareholders hereby covenant that the following basic
principles shall serve as guidelines for the manner of action of the
Shareholders of the Company during the term of effectiveness of this
Agreement:
(a) the equity control of the Company shall be exercised in a shared form
between, on the one part, SENDAS, and, on the other part, CBD
Companies;
(b) to elect a Board of Directors and Executive Committees, so as to ensure
the Shareholders efficient mechanisms for the supervising of the
Company's performance, by adopting the best corporate governance
practices;
(c) to maintain and enhance the identity of the Company as a Company that
is active in the retail market of the State of Rio de Janeiro and, in
the future, in the State of Espirito Santo, through multi-format
stores;
(d) CBD shall be fully responsible for the operating and administrative
management of the Company, having complete freedom to take decisions
concerning the day-to-day operations of the Company's stores and being
responsible for the direct management of the businesses, provided that
such management is conducted by experienced professionals having
flawless reputation and renowned technical competence and who have the
necessary qualifications for performance in their respective positions;
(e) strategic decisions concerning the Company as well as the human
resources policy shall always be oriented to the best interests of the
Company;
(f) management of the Company shall always seek levels of profitability,
efficiency, productivity and competitiveness that are compatible with
best practices in the relevant field of business, thereby ensuring the
continuity of its operations; and
(g) any business relations between the Shareholders and the Company shall
always be conducted and performed on market conditions.
2.2. Each of the Shareholders undertakes to exercise its voting rights in
the Company's shareholders' meetings, as well as to cause its
representatives on the Company's Board of Directors to vote in the
relevant body, always in compliance with the basic principles
established in item 2.1 above and in accordance with the other
provisions of this Agreement. Any action that does not totally conform
to this Agreement is strictly forbidden.
ARTICLE III
CAPITAL STOCK
3.1. The capital stock of the Company, which is fully subscribed, is nine
hundred million and two thousand Reais (R$ 900,002,000.00), divided
into nine hundred million and two thousand (900,002,000) shares, being
five hundred million and two thousand (500,002,000) common shares and
four hundred million (400,000,000) preferred shares, all of which are
registered and have no par value.
3.2. The Shares are distributed among the Shareholders as follows:
------------------------------------------------------------------------
Shareholder No. Common No. of Percentage (%)
Shares Preferred Shares of Total
CBD 25,003,741 -0-
------------------------------------------------------------------------
NOVASOC 2,019,395 -0-
------------------------------------------------------------------------
SE 222,977,864 199,999,994
------------------------------------------------------------------------
Total CBD Companies 250,001,000 199,999,994 50
------------------------------------------------------------------------
SENDAS 250,001,000 199,999,994 50
------------------------------------------------------------------------
Board Members -0- 12
------------------------------------------------------------------------
Total 500,002,000 400,000,000 100
------------------------------------------------------------------------
3.3. In accordance with the provisions of the Investment Agreement (a) the
preferred Shares subscribed by Sendas, whether paid-in or not, shall be
entitled to receive full dividends (b) the preferred Shares shall be
converted into common Shares if the conditions established in the
Investment Agreement are met; (c) the Shareholders undertake, once the
conditions for the conversion under the Investment Agreement are met,
to call a Company Shareholders' Meeting and to vote for approval of the
conversion on the ratio of one common Share to each preferred Share.
ARTICLE IV
MANAGEMENT
4.1. Board of Directors
4.1.1. The Board of Directors of the Company shall consist of twelve (12)
regular members and four (4) alternate members, with terms of office of
two (2) years, to which offices they may be reelected.
4.1.2. The Board of Directors shall meet on a regular basis every sixty (60)
days, and on a special basis at any time when called by the Chairman or
by one third (1/3) of the board members in office. The Chairman of the
Board of Directors of the Company shall be Xx. XXXXXX XXXXXXX XXXXXX.
4.1.2.1. In view of the intuitu personae nature of the appointment of Xx. XXXXXX
XXXXXXX XXXXXX as Chairman of the Company's Board of Directors, in the
event of his death, incapacity or non-qualification during the term of
effectiveness of this Agreement, the Shareholders shall elect his
substitute by mutual agreement within thirty (30) days as of the
relevant event.
4.1.3. The Shareholders may determine the creation of Board of Directors'
Committees to examine specific matters that demands the analysis and
technical knowledge that is peculiar to the committee members.
4.1.4. Each Shareholder shall have the right to individually appoint four (4)
regular members of the Board of Directors of the Company and two (2)
alternate members associated to them; the four (4) remaining members -
who shall have no alternate members - shall be appointed by mutual
agreement by the Shareholders among professionals in the market that
have no relationship with the Shareholders ("Independent Board
Members"). If any of the Shareholders have its participation reduced to
less than fifty percent (50%) of the Joint Participation, it will be
entitled to appoint board members as follows:
------------------------------------------------------------------------
Shareholders' Participation Number of board members
in the Joint Participation to be designated
------------------------------------------------------------------------
More than 40% and less than 50% Three (3)
------------------------------------------------------------------------
More than 25% percent and less than 40% Two (2)
------------------------------------------------------------------------
More than 12.5% and less than 25% One (1)
------------------------------------------------------------------------
4.1.4.1. If SENDAS, due to the exchange described in item 6.9.3 below, becomes
the owner of one (1) Class A Common Share, SENDAS shall have the right
to elect, in a separate voting procedure, for as long as the Company
exists, only one (1) member of the Board of Directors of the Company,
with all other members of the Board of Directors being elected by CBD
Companies.
4.1.5. The Shareholders undertake to exercise their voting right in the
Company's shareholders agreements so as to ensure that the members of
the Board of Directors are elected as provided under item 4.1.
4.1.5.1. A Shareholder that exercises the right to designate board members based
on the provisions of this Agreement may not concomitantly use the right
provided in the Corporation Law to elect a board member in a separate
voting procedure.
4.1.6. A Shareholder may at any time substitute any board member that it has
appointed, and both Shareholders undertake to exercise the voting
rights in the Company's shareholders meetings so as to
ensure the election of the substitute.
4.1.7. In the event of temporary vacancy, removal, resignation, substitution,
or any event that implies the need to substitute one of the members of
the Board of Directors of the Company, the Shareholder that appointed
such member shall have the right to designate his/her relevant
substitute. The Shareholders and the board members agree to vote in the
Company's shareholders' meeting and in the Board of Directors's
meetings, respectively, so as to ensure the election of the appointed
member.
4.1.8. The Shareholders shall resolve as to the form for use of their vote so
as to ensure the fulfillment of the objective established in the items
of this Article IV, it being certain, however, that none of the
Shareholders shall request the adoption of the multiple vote procedure
without prior and express agreement of the other Shareholder. For
resolutions of the Board of Directors, each board member, including the
Chairman, shall have the right to one vote.
4.1.9. The meetings of the Board of Directors shall be held with the presence
of the majority of the members in office and, with due regard for the
provisions of item 4.1.9.2 below, its resolutions, including proposals
to be submitted to the Shareholders' Meeting, shall be approved by the
majority vote of the board members present.
4.1.9.1. In addition to the attributions provided by law, it shall be incumbent
upon the Board of Directors:
(a) to authorize the granting or assumption of loans, financing, leasing,
guarantees or assumption of a thirty party debts, including the
issuance of debentures, when the amount of the transaction is greater
than twenty million Reais (R$ 20,000,000.00), adjusted by the variance
of the IPC or consumer price index;
(b) to authorize the performance of outside the activities comprised in the
corporate purpose of the Company;
(c) to approve or to review the Annual Investments Program;
(d) to resolve on the acquisition, sale or encumbrance of the Company's
businesses or assets, when the individual amount exceeds twenty million
Reais (R$ 20,000,000.00), adjusted by the variance of the IPC.
4.1.9.2. None of the matters listed in item 4.1.9.1 may be approved if there are
dissenting votes of two (2) board members appointed by SENDAS, or
dissenting votes of two (2) board members appointed by CBD Companies.
In exercising a dissenting vote, the board member shall explain the
reasons for his/her decision.
4.1.9.3. In the event of a tie for a resolution concerning a matter that is not
listed under item 4.1.9.1, the Board of Directors shall meet within the
subsequent fifteen days for a new resolution. If the differences
persist, the position to be adopted shall be defined by the Special
Committee, as provided under Article VII below.
4.1.10. Each Shareholder shall assign and transfer, on a fiduciary basis, one
(1) preferred share held by it to each of the board members. For the
purposes of this Agreement, the preferred Shares assigned to the Board
Members shall be considered to be property of the assigning
Shareholder. Each Shareholder agrees to obtain from each board member
to whom it has transferred a preferred Share a power of attorney
granting full powers to transfer back such preferred Share in the event
that the assignee for any reason ceases to be a member of the Board or
is hindered from fully performing his/her attributions in the relevant
position.
4.1.11. The Company shall have an Executive Committee, a Finance Committee, a
Development and Marketing Committee and an Audit Committee (hereinafter
referred to as "Committees"), which shall assist the Board of Executive
Officers and the Board of Directors in their interaction and
cooperation. In addition to such Committees, the Company shall have a
Special Committee for solution of divergences, pursuant to Article VII
below.
4.1.12. Each Committee shall consist, at the discretion of the Board of
Directors, of four (4) to six (6) members, with half of the members of
each Committee being appointed by each of the Shareholders. CBD
Companies will appoint the Coordinators of the Executive Committee and
of the Audit Committee, and SENDAS will appoint the Coordinators of the
Finance Committee and of the Development and Marketing Committee. The
Coordinators shall be members of the Board of Directors. The terms of
office of the members of each Committee shall be the same as those of
the members of the Board of Directors.
4.1.13. Under the supervision of the Board of Directors, the Committees shall
supervise the tasks of the Company's Board of Executive Officers and,
pursuant to the terms of the Company's By-Laws, shall have the
following attributions:
I) The Executive Committee shall meet monthly at the Company's
headquarters and shall have the following attributions:
(a) to supervise the work of the Board of Executive Officers in
preparing the annual/pluriannual budget and relevant revisions;
(b) to supervise the work of the Board of Executive Officers in the
preparation of the Annual Investments Plan;
(c) to submit to the approval of Shareholders' meetings proposals to
the Board of Directors concerning the total annual management
compensation;
(d) to supervise the work of the Board of Executive Officers as to the
achievement of targets and results;
II) The Finance Committee shall meet quarterly at the Company's
headquarters and shall have the following attributions:
(a) to supervise the work of the Board of Executive Officers in
revising the Company's cash flow and capital structure;
(b) to supervise, jointly with the Board of Executive Officers, the
implementation and compliance with the Annual Investments Program;
and
(c) to supervise the average cost of the capital structure based on
data provided by the Board of Executive Officers, as well as to
suggest changes to the structure whenever necessary.
III) The Development and Marketing Committee shall meet quarterly at
the Company's headquarters and shall have the following
attributions;
(a) to supervise, jointly with the Board of Executive Officers, the
evolution of the Company's brands, as well as to define their
features;
(b) to supervise the work of the Board of Executive Officers in
revising the Company's marketing policy;
(c) to supervise the work of the Board of Executive Officers in
developing, preparing and implementing the Company's marketing
plans; and
(d) to supervise the work of the Board of Executive Officers in the
development of proposals for new targets concerning the Company's
institutional marketing.
IV) The Audit Committee shall meet quarterly at the Company's
headquarters and shall have the following attributions:
(a) to supervise the work of the Board of Executive Officers in the
review of the accounting practices and procedures adopted by the
Company; and
(b) to supervise the work of the Board of Executive Officers in the
preparation of the Company's balance sheets and financial
statements.
V) The Special Committee shall meet in the Company's headquarters whenever
a divergence should arise, on the terms of Article VII of this
Agreement.
4.1.14. The meetings of each Committee shall be held with the presence of the
majority of the members in office.
4.1.15. In the event of a vacancy, whether for reasons of impediment (either
temporary or definitive), termination or resignation of any members of
the Committees, his/her substitution shall be provided for by the same
Shareholder that appointed him/her originally.
4.2. Board of Executive Officers
4.2.1. Each of the Shareholders will exercise its rights provided for in this
Agreement, and will direct its representatives on the Board of
Directors of the Company to exercise their voting rights to ensure the
election of the Board of Executive Officers according to this item 4.2.
4.2.2. The Board of Executive Officers will consist of a minimum of three (3)
and a maximum of (5) members, with terms of office of two (2) years, to
which offices they may be reelected. One of the executive officers
shall be the Chief Executive Officer and the others shall have no
specific designation.
4.2.2.1. The Chief Executive Officer shall establish the individual attributions
of the executive officers and of the members of the Company's senior
management, and may for such purpose develop Internal Rules and submit
them to the resolution of the Board of Directors.
4.2.2.2. The Chief Executive Officer shall indicate, among the executive
officers, the one who shall substitute him/her during occasional
impediments.
4.2.3. The Executive Officers, which might be chosen among the staff of
professionals of any one of the Shareholders or recruited in the
market, shall be elected by the Board of Directors in accordance with
the appointment of CBD Companies, in either case being professionals
who have renowned competence and flawless reputations.
4.2.4. The Executive Officers shall be evaluated every six months by the Board
of Directors of the Company, according to the Key Performance
Indicators (KPIs) based on the best practices in the market.
4.2.5. The Shareholders agree that CBD shall be responsible for the operating
and administrative management of the Company. Thus, CBD shall have
total freedom to take any and all decisions relating to the day-to-day
operations of the Company's stores, provided that the direct management
of the businesses shall be conducted by experienced professionals with
flawless reputation and renowned technical competence who have the
necessary qualifications to the performance of their duties.
4.2.5.1. The Board of Executive Officers shall have total freedom to take any
operating decisions, including, but not limited to: (i) appointment and
removal of the other executives of the Company, (ii) changes to the
stores' format, and (iii) general decisions in hiring and dismissing
the Company's employees.
4.2.6. SENDAS agrees to ensure that its representatives on the Board of
Directors of the Company vote together with the representatives of CBD
Companies to appoint and/or remove the Executive Officers as indicated
by CBD Companies' representatives.
ARTICLE V
EXERCISE OF VOTING RIGHTS
5.1. Except for resolutions concerning the election of members of the Board
of Directors which are subject to the provisions of Article IV above,
each of the Shareholders shall exercise its voting rights in the
Company's shareholders' meetings, and shall ensure that their
representatives on the Board of Directors of the Company exercise their
voting rights, in compliance with the provisions of this Article V.
5.2. As long as each Shareholder holds fifty percent (50%) of the Joint
Participation, the resolutions of the Shareholders Meeting shall be
taken by consensus of the Shareholders.
5.3. If the equity participation of any of the Shareholders is lower than
fifty percent (50%) of the Joint Participation, such Shareholder shall
then have veto rights in the Shareholders' Meeting for resolutions on
the following topics:
(a) increase of the Company's capital by issuance of common shares, or
reduction of the Company's capital;
(b) transformation, consolidation, merger and spin-off involving the
Company;
(c) dissolution and liquidation, election and removal of liquidators;
(d) filing for the Company's self-bankruptcy or composition with creditors;
(e) any changes to the Company's dividend policy;
(f) providing for the public offering of the Company's capital;
(g) creation of founders shares;
(h) change of the corporate name;
(i) change of the preferences ascribed to the preferred Shares;
(j) any statutory change that could affect the rights and obligations of
the Shareholders resulting from this Shareholders Agreement; and
(k) authorization to execute, amend or terminate any agreement or contract
between the Company, on the one side, and, on the other side, any of
the shareholders of the Company, their relatives or related parties, or
Companies that may be controlled by them either directly or indirectly.
5.3.1. The veto rights referred to in item 5.3 above shall last only for as
long as the Shareholder holds twenty-five percent (25%) or more of the
Joint Participation. In exercising its veto rights, the Shareholder
shall explain the reasons for its decision.
5.3.2. The Shareholders agree that they shall not be granted the right to veto
any transactions to increase the capital stock through the issuance of
preferred Shares, except if the preferred Shares being issued have or
may have in the future voting rights.
5.4. Failure to attend the Shareholders' Meeting or the meetings of the
Board of Directors, as well as abstention from voting by any
Shareholders or by members of the Board of Directors elected under this
Agreement, shall entitle the harmed Shareholder the right to vote with
the Shares held by the absent Shareholder and, in the case of the Board
of Directors, the board members appointed by the harmed Shareholder
shall have the right to vote for the absent Board Members, pursuant to
Article 118, Paragraph Nine of the Corporation Law.
ARTICLE VI
RIGHTS OF FIRST REFUSAL,
OF PUT OPTION, OF EXCHANGE
AND OF TAG ALONG
6.1. Each of the Shareholders hereby undertakes (i) to refrain from
Transferring its Shares without providing to the other Shareholder the
rights of first refusal and tag along according to this Article VI; and
(ii) to refrain from creating any type of Encumbrance on its Shares
without prior written consent of the other Shareholder.
6.2. To ensure the right of first refusal established in this Agreement, the
Shareholders will observe the following:
(a) a Shareholder that wishes to Transfer the totality or a portion of its
Shares (hereinafter referred to as "Offering Shareholder"), on the
terms and conditions of a proposal received from an interested third
party (hereinafter referred to as "Proposal"), shall notify the other
Shareholder (hereinafter referred to as "Offered Shareholder"), with a
copy to the Chairman of the Board of Directors of the Company,
informing (i) the name and identification of the interested third
party; (ii) the number of Shares held by it that it intends to Transfer
(hereinafter referred to as "Offered Shares"); and (iii) the price and
other payment terms;
(b) unless expressly authorized by the Offering Shareholder, the Offered
Shareholder may only exercise its right of first refusal to purchase
the totality of the Offered Shares;
(c) the Offered Shareholder that wishes to exercise its right of first
refusal shall notify the Offering Shareholder, with a copy to the
Chairman of the Board of Directors of the Company, within thirty (30)
days as of the receipt of the Proposal ("Term for First Refusal"),
manifesting its irreversible and unconditional commitment to acquire
all of the Offered Shares for the price and on the terms of the
Proposal;
(d) if the Offered Shareholder manifests its commitment to acquire the
Offered Shares within the Term for First Refusal, the Shareholders
shall complete the transaction of purchase and sale of the Shares on
the exact terms of the Proposal; lack of manifestation concerning the
exercise of the right of first refusal, in respect of each Proposal,
within the Term for First Refusal, will be considered as an irrevocable
and irreversible waiver by the Offered Shareholder exclusively in
respect of such specific Proposal, regarding the right of first refusal
referred to in this item 6.2;
(e) if the Offered Shareholder fails to exercise the right of first refusal
within the Term for First Refusal, the Offering Shareholder shall have
the right to Transfer the Offered Shares to the interested third party
on the exact terms of the Proposal, provided that such Transfer is
completed within a maximum of sixty (60) days as of the expiration of
the Term for First Refusal;
(f) if the Transfer is not completed within the term established in item
(e) above, the procedure described in this item 6.2 shall be initiated;
and
(g) if any one of the Shareholders partially Transfer to third parties its
Shares on the terms of this item 6.2, for purposes of this Agreement
such acquiring third party shall be considered (jointly with the
Offering Shareholder) as one single party, extending to the group thus
formed the rights and obligations attributed by this Agreement to the
Offering Shareholder.
6.3. Should the Shares owned by any of the Shareholders be subject to
seizure, attachment or judicial pledge, such Shareholder shall
immediately inform the other Shareholder as to such fact. If the
judicial measure is not released within thirty (30) days as of its
effectiveness, the Shareholder that holds the Shares shall notify the
other Shareholder in this regard. Such notice shall be considered to be
an offer for sale of such Shares
for their Transfer Value. A Shareholder that accepts the offer may, in
order to acquire the Shares that are subject to judicial restriction,
deposit in court the amount that is necessary to release the
attachment. If the disbursement made by the Shareholder to release the
mentioned restriction exceeds for any reason the Transfer Value, such
Shareholder shall be reimbursed in cash by the other Shareholder within
thirty (30) days as of the date of the payment made by the Shareholder
to release the mentioned judicial restriction. If the Transfer Value of
the Shares exceeds the necessary amount to release the restriction, the
acquiring Shareholder shall pay the difference directly to the
disposing Shareholder on the same date that it deposits such value in
court if the Transfer Value has already been assessed or in up to ten
(10) days after the date of assessment of the Transfer Value.
6.4. Any Shareholder that intends to Transfer, in whole or in part, the
subscription rights that derive from the Shares shall assure to the
other Shareholder the right of first refusal, by applying what is
provided under item 6.2. of this Agreement, except for the terms
established therein, which shall be of ten (10) days.
6.5. The transfer of the Shares shall only be valid and effective if the
acquirer adheres in advance, in writing and without restrictions to the
terms and conditions of this Agreement.
6.6. The obligation of assuring the right of first refusal established in
this Article VI shall not apply:
(a) to the transfer on a fiduciary basis by the Shareholders to the board
members of preferred Shares, in the form provided under 4.1.10 above;
or
(b) to the Transfer of the Shares by any of the Shareholders to any party
that (i) exercises Equity Control over such Shareholder; or (ii) if it
is under the Equity Control of such Shareholder.
6.6.1. Subject to the provisions of item 6.2.2 below, the Shares that may be
Transferred by any of the Shareholders in the cases established in
letters (a) or (b) of item 6.6. above shall remain entirely bound by
this Agreement, which shall be extended to the relevant acquirer of the
Shares (hereinafter referred to as "Acquirer") in all of their rights
and obligations.
6.6.2. A condition precedent for the effectiveness of the relevant Transfer of
Shares, in the cases provided under letters (a) and (b) of item 6.6
above, is the execution by the relevant Acquirer of an instrument by
which he/she/it adheres to this Agreement irrevocably and irreversibly
undertakes to unconditionally observe all of its terms and provisions,
including, but not limited to, the rights of first refusal and of tag
along established in this Article VI.
6.6.3. If any of the Shareholders should Transfer of its Shares, as provided
under letters (a) and (b) of item 6.6, to more than one Acquirer, such
Acquirers shall be all treated (jointly with the disposing Shareholder,
if such Shareholder remains as holder of a portion of the Shares), for
the purposes of this Agreement, as one single party, in which case the
term "Shareholder", defined in letter (b) of item 1.1 above shall
thereinafter mean all of the Acquirers jointly (and also the disposing
Shareholder, if it remains as holder of a portion of the Shares).
6.6.4. In the case of letter (b) of item 6.6 above, if the disposing
Shareholder ceases to hold any participation in the voting capital of
the Company, the Acquirers shall indicate within a maximum term of five
(5) days as of the date on which the disposing Shareholder ceases to
hold Shares of the Company, through a notice to the other Shareholder,
with a copy to the Chairman of the Board of Directors of the Company,
the name and address of the Acquirer which will individually represent
all of the other Acquirers in respect of any and all issues concerning
this Agreement.
6.7. Transfer of the Equity Control of CBD Companies
6.7.1. If the CBD controller transfers, either directly or indirectly, the
Equity Control of CBD Companies, it shall notify SENDAS in writing
informing (i) the name and identification of the third party to which
the control is being transferred; and (ii) that the acquirer of the
control has assumed an irrevocable and irreversible obligation of
acquiring, if SENDAS should exercise the right provided under 6.7.2,
the
totality of the Shares owned by SENDAS for the Transfer Value, to be
paid in cash on demand.
6.7.2. If SENDAS wishes to sell the totality of the Shares it owns on the
conditions established above ("put"), it must manifest in writing to
CBD its irreversible and irrevocable decision of selling the totality
of the Shares that it owns within thirty (30) days following the
receipt of the notice referred to item 6.7.1; the formalization of the
transfer of the Shares, with payment of the Transfer of Value, shall be
effected within thirty (30) days as of the notice from SENDAS to CBD
or, if upon expiration of such term the Transfer Value has not yet been
assessed, within ten (10) days following the assessment.
6.7.3. Lack of manifestation regarding the exercise of the "put" within the
term established in item 6.7.2 above shall be considered as an
irrevocable and irreversible waiver on the part of the SENDAS,
exclusively for such specific proposal.
6.8. Transfer of the Equity Control of SENDAS or of SENDAS EMPREENDIMENTOS
6.8.1. If SENDAS Controller receives from a third party a proposal
(hereinafter referred to as "Proposal") to Transfer the equity control
of SENDAS and/or of SENDAS EMPREENDIMENTOS, it shall notify CBD in
writing informing (i) the name and identification of the acquiring
third party; (ii) the number of SENDAS's shares and/or SENDAS
EMPREENDIMENTOS's quotas that it intends to transfer and the percentage
that they represent in the voting capital of such companies; (iii) the
conditions of any voting Agreement to be executed with the acquiring
third party; and (iv) the price and other payment terms.
6.8.2. Within thirty (30) days as of the date of receipt of the notice
referred to in item 6.8.1 above, CBD shall have the right to, at its
exclusive discretion, notify SENDAS controller manifesting its
irrevocable and irreversible commitment to: (i) exercise the right of
first refusal as to acquisition of the SENDAS shares and/or the SENDAS
EMPREENDIMENTOS QUOTAS, on the same terms and conditions of the
relevant Proposal; or (ii) exercising the right of acquiring from
SENDAS the totality of the Shares of the Company held by SENDAS, for
the relevant Transfer Value.
6.8.3. If CBD manifests its intention of acquiring: (i) the SENDAS shares
and/or the SENDAS EMPREENDIMENTOS quotas if it exercises the right
of first refusal referred to in item 6.8.2 (i) above; or (ii) the
Shares of the Company held by SENDAS if it exercises the right to
purchase the Shares as described in item 6.8.2 (ii) above, the
relevant purchase and sale shall be completed within a maximum
term of thirty (30) days as of the date of remittance of the
notice referred in item 6.8.2 above.
6.8.4. Lack of manifestation regarding the exercise of first refusal
and/or the right to purchase the Shares within the term
established in item 6.8.2 above shall be considered as an
irrevocable and irreversible waiver by CBD of the relevant right
of first refusal and right of purchase of the Shares held by
SENDAS, exclusively in respect of such specific proposal.
6.9. Share Exchange
6.9.1. As from February 1, 2007, SENDAS may at any time at its exclusive
discretion exercise the right to exchange the totality or a
portion of the paid-in Shares held by it for preferred Shares
representing the capital stock of CBD ("CBD Preferred Shares"),
provided that it notifies CBD in writing at least ninety (90) days
in advance of the date of the mentioned exercise. In this case,
CBD undertakes to provide the necessary measures to finalize the
exchange.
6.9.1.1. If SENDAS exercises the exchange right mentioned in item 6.9.1
within the term of ninety (90) days referred to therein, CBD may
choose to perform its obligation at its exclusive discretion by
one or combined alternative ways or a combination thereof: (a) to
carry out the exchange; and/or (b) to purchase in cash - for the
Transfer Value to be paid on the effective date of transfer - the
Shares upon which the right of exchange has been exercised, and/or
(c) to adopt any one of the mechanisms referred to in item 6.9.2.
6.9.1.2. In the share exchange, the value of the paid-in Shares will be the
Transfer Value on the date of the event, while the value of CBD
Preferred Shares will be the average of their average trading
prices for the five (5) Bovespa trading sessions preceding the
date of the event, considering as the date of the event the day on
which CBD receives the notice referred to in item 6.9.1.
6.9.1.3. Upon receipt of the notice by CBD, the evaluation of the Transfer
Value shall commence immediately, as set forth in letter (y) of
1.1.
6.9.2. Provided that the exchange ratio deriving from the application of
the rule established in 6.9.1.2 is fully observed and the term of
ninety (90) days referred to in 6.9.1.1 is respected, the Share
exchange may be alternatively accomplished, at the discretion of
the CBD controller, by use of any corporate procedure (increase of
CBD's capital stock, merger of Shares pursuant to Article 252 of
the Corporation Law, or any other), in which case SENDAS shall be
required to perform, in order to accomplish the exchange, all of
the acts for which it is responsible in respect of the corporate
procedure chosen by CBD.
6.9.3. In case an exchange of the totality of the paid-in Shares held by
SENDAS for CBD Preferred Shares takes place, the Shareholders
agree to approve the creation of one (1) Class A Common Share to
be issued at the price of one Real (R$ 1.00), which shall be
subscribed and paid in by SENDAS on the same date of the exchange
of the totality of the Shares held by SENDAS for CBD Preferred
Shares.
6.9.3.1. Following the exchange described in this item and the subscription
by SENDAS of the mentioned Class A Common Share, SENDAS will be
entitled to have a restricted voting right in the election of one
(1) member of the Board of Directors of the Company in a separate
voting procedure.
6.9.4. In case SENDAS Transfers a percentage greater than seventy-five
percent (75%) of the CBD Preferred Shares owned by it, which shall
include CBD Preferred Shares acquired through exchange as well as
the stock dividends attributed thereto, SENDAS hereby irrevocably
and irreversibly undertakes to transfer to CBD the mentioned Class
A Common Share at the established and agreed price of one Real (R$
1.00).
6.9.5. SENDAS shall notify CBD in writing, at least thirty (30) days in
advance, the scheduled date of the Transfer to third parties of
any amount of CBD Preferred Shares held by SENDAS during the term
of effectiveness of this Agreement.
6.9.5.1. With due regard for the provisions under 6.9.5.2 below, the CBD
Preferred Shares may only be sold by SENDAS according to the
following schedule:
(a) from February 1, 2007 to January 31, 2010: one third
(1/3) of the CBD Preferred Shares;
(b) from January 1, 2010 to January 31, 2013: one third
(1/3) of the CBD Preferred Shares;
(c) as from February 1, 2013: the balance of the CBD
Preferred Shares still held by SENDAS.
6.9.5.2. In order to avoid that the trading price of CBD Preferred Shares
be affected negatively, the sale of such Shares by SENDAS in he
stock exchange shall be effected in tranches to be defined by
mutual agreement between the Shareholders. If the Shareholders
fail to reach an Agreement as to the definition of the tranches,
the definition shall be established by the Special Committee
referred to in Article VII. CBD undertakes to collaborate with
SENDAS to maximize the trading price of CBD Preferred Shares,
including through the support to road shows that SENDAS may intend
to promote.
6.10. Tag Along Rights
6.10.1. A Shareholder that intends to sell common Shares in an amount greater
than ten percent (10%) of the
Joint Participation shall be required to offer also and concomitantly
a tag along right, according to this item 6.10, in addition to the
offering of the right of first refusal to the other Shareholder as
provided under this Article VI.
6.10.2. Upon receiving the notice referred to in letter (a) of item 6.2, an
Offered Shareholder that does not wish to exercise the right of first
refusal for the common Shares offered may manifest within the Term for
First Refusal its irrevocable and irreversible decision to sell,
jointly with the Offering Shareholder, Shares in a quantity not greater
than that being sold by the Offering Shareholder.
6.10.3. If the tag along right is exercised, both the Shares of the Offering
Shareholder and those of the Offered Shareholder shall be sold on the
same date and on the same conditions.
6.11. Any Transfer of or constriction of Shares inconsistent with the
provisions of this Article VI shall not be valid, and the management of
the Company is forbidden from making entries in the relevant corporate
books, subject to being held personally liable.
ARTICLE VII
SOLUTION OF DIVERGENCES
7.1. In the event of a tie concerning a resolution of the Board of
Directors, and in other cases expressly provided for in this Agreement
as provided for in item 4.1.9.3., the procedure provided for in this
Article VII shall be mandatorily adopted.
7.2. The Shareholders shall establish a Special Committee consisting of
three (3) independent members, one (1) indicated by each of the
Shareholders and the third, which shall be an independent consultant
specialized in the Company's field of activity, indicated by mutual
Agreement by the Shareholders, for the solution of divergences
("Special Committee"). Should the Shareholders fail to arrive at a
consensus as to the designation of the mentioned independent
consultant, the Chairman of the Chamber of Conciliation and
Arbitration of the Xxxxxxx Xxxxxx Foundation - FGV or, should the
latter be unable to comply with this request, the Chairman of the
Chamber of Arbitration of the Sao Paulo Stock Exchange - Bovespa
(Camara de Arbitragem do Xxxxxxx da Bolsa de Valores do Estado de Sao
Paulo), shall appoint the referred independent consultant. The
Special Committee shall decide by majority vote and shall have
twenty (20) days to present a solution for the divergence that has
been submitted to it. The decision of the Special Committee shall
be final and shall be respected by the board members and by the
Shareholders.
ARTICLE VIII
INTERVENING CONSENTING PARTIES
8.1. The Company executes this Agreement as intervening party, is aware of
its terms and undertakes to comply with all of its provisions and,
particularly, to file it as provided for in Article 118 of the
Corporation Law.
8.2. The following text shall be inserted as to the book-entry concerning
the common shares held by the Shareholders in the Book of Register of
Registered Shares: "The encumbrance or transfer of these shares, on any
account, is subject to the terms, limits and conditions of the
Shareholders Agreement executed on February 29, 2004, under penalty of
annulment and inefficacy of the transaction."
8.3. The Company shall only be required to observe any amendments to the
terms of this Agreement if they have been established through a written
agreement.
8.4. The Company undertakes to immediately notify the Shareholders of any
act, fact or omission that could represent a violation of this
Agreement, as well as to take any measures that may be required by
subsequent legislation as a condition for maintaining the validity and
effectiveness of this Agreement.
8.5. Messrs. XXXXXX XXXXXXX XXXXXX and XXXXXX DOS XXXXXX XXXXX, in addition
to SENDAS
EMPREENDIMENTOS, PAIC, PENINSULA and NOVA PENINSULA, hereby execute
this Agreement as intervening parties, and therefore are aware
of all of its terms and irrevocably and irreversibly undertake to
observe and comply with all of its provisions, particularly those
relative to the rights provided for in Article VI.
ARTICLE IX
NOTICES
9.1. Any communication, notice and/or advice concerning the provisions of
this Agreement shall be sent in writing and delivered to each
Shareholder by fax, registered mail with acknowledgement notice, or by
any other form that is mutually acceptable to the Shareholders, to the
addresses below:
(a) if addressed to SENDAS, to:
Rodovia Xxxxxxxxxx Xxxxx 0000
Xxx Xxxx xx Xxxxxx, XX
CEP 25569-900
Fax: (00) 00000000
Attn: Xxxxxx Xxxxxxx Xxxxxx
With a copy (without the effects of a notice) to:
Av. Almirante Xxxxxxx, 00 - 0(0) Xxxxx
Xxx xx Xxxxxxx, XX
CEP 20031-00
Fax: (00) 0000-0000
Attn: Xxxxxxx xx Xxxxxx Xxxxxx Xxxxxxxx
(b) if addressed to CBD Companies, to CBD:
Xxxxxxx Xxxxxxxxxx Xxxx Xxxxxxx, 0000
Xxx Xxxxx - SP
CEP 01402-000
Fax: (00) 00000000
Attn: Xxxxxxx Xxxxxxx xx Xxxx Filho
With a copy (without the effects of a notice) to:
Xx. Xxxxxxxx, 000 - 00(xxxxxx) andar
Sao Paulo, SP
CEP 01311-928
Fax: (00) 0000-0000
Attn: Xxxxxx Xxxxxxxxxxx
(c) if addressed to the Company, to:
Xx. Xxxxxxxxxx Xxxx Xxxxxxx, 0000
Sao Paulo, SP
CEP: 01402-000
Fax: (00) 00000000
Attn: Caio Racy Mattar
(d) if addressed to Xx. XXXXXX XXXXXXX XXXXXX or SENDAS
EMPREENDIMENTOS, to:
Xxxxxxx Xxxxxxxxxx Xxxxx, 0000
Xxx Xxxx xx Xxxxxx, XX
CEP: 25569-900
Fax: (00) 00000000
Attn: Xxxxxx Xxxxxxx Xxxxxx
With a copy (without the effects of a notice) to:
Xx. Xxxxxxxxx Xxxxxxx, 00 - 5(0) Andar
Xxx xx Xxxxxxx, XX
XXX 00000-00 (sic)
Fax: (00) 0000-0000
Attn: Xxxxxxx xx Xxxxxx Xxxxxx Xxxxxxxx
(e) if addressed to XXXXXX DOS XXXXXX XXXXX, PAIC or PENINSULA,
to:
Xxxxxxx Xxxxxxxxxx Xxxx Xxxxxxx, 0000
Xxx Xxxxx - SP
CEP 01402-000
Fax: (00) 00000000
Attn: Xxxxxxx Xxxxxxx xx Xxxx Filho
With a copy (without the effects of a notice) to:
Xx. Xxxxxxxx, 0000 - 20(degree) andar
Sao Paulo, SP
CEP 01311-928
Fax: (00) 0000-0000
Attn: Xxxxxx Xxxxxxxxxxx
9.2. Any Shareholder or intervening party may change the address for notices
mentioned in item 9.1 above provided that it notifies such change to
the other parties, according to the provisions of this Article IX.
ARTICLE X - TERM OF EFFECTIVENESS
10.1. This Agreement shall remain in effect as long as any Shareholder or
successor thereof - severally or constituting a group, as provided
under letter (g) of item 6.2 -holds any Shares. Except as provided
under items 6.9.5.2 and 7.2, if SENDAS becomes the holder of the Class
A Common Share, it shall lose all rights and shall be released from all
obligations resulting from this Shareholders Agreement, except for
those that are inherent to the Class A Common Share.
ARTICLE XI - SPECIFIC PERFORMANCE
11.1. The Shareholders hereby acknowledge and represent that the mere payment
of losses and damages shall not represent adequate compensation for
default of any obligation undertaken hereunder.
11.2. The provisions of this Agreement shall be subject to specific
performance, pursuant to Article 118, Paragraph Three, of the
Corporation Law, and the Shareholders acknowledge that this instrument
constitutes an extrajudicial instrument of enforcement for compliance
with the provisions of Articles 461, 462, 639 et seq of the Brazilian
Civil Code.
11.3. The president of the Company shareholders' meeting shall deem null,
invalid and ineffective any vote that is contrary to the provisions of
this Agreement.
ARTICLE XII - CONFIDENTIALITY
12.1. The Shareholders hereby agree to maintain under absolute
confidentiality all information contained in this Agreement, as well as
any documents and information deriving therefrom, during the term of
effectiveness of the Agreement and for an additional term of two (2)
years as of the date of its termination.
12.2. Unless necessary for implementation of the terms of this Agreement, the
Shareholders shall maintain absolute secrecy for the period mentioned
in item 12.1 above as to any information of a strategic, business,
financial, administrative, legal or any other nature deriving directly
or indirectly from this Agreement, except for the obligation resulting
from their functions to disclose it to their respective board members,
executive officers, consultants or employees, provided that each of
such individuals is made aware that this information is strictly
confidential and agrees to refrain from disclosing or using the
information in any way. The Shareholders undertake, on their own behalf
and on behalf of their representatives, agents, employees or
subcontractors, to maintain the secrecy and confidentiality of the
information obtained herein except if due to an order given by an
authority having competent jurisdiction, refraining from using it for
any purpose other than in its capacity as Shareholder.
ARTICLE XIII - EXCLUSIVITY
13.1. During the term of effectiveness of this Agreement the Shareholders
undertake to refrain from engaging in any activity that could compete
with the activities of the Company within the Exclusive Territory,
either independently or jointly with third parties.
ARTICLE XIV - JOINT LIABILITY
CBD Companies are jointly liable for compliance with all of the obligations
incumbent upon any of them hereunder.
ARTICLE XV - GENERAL PROVISIONS
15.1 Any one of the Shareholders shall always be entitled to access
information concerning any business conducted by or proposed to the
Company, as well as to provide for, at its own cost, technical,
accounting or financial audits of any procedures and records maintained
by the Company.
15.2 Should any provision of this Agreement be deemed null or ineffective,
the validity or effectiveness of the remaining provisions shall not be
affected and shall remain in full force and effect and, in such case,
the Shareholders shall negotiate in good faith to substitute the
ineffective provision by another that, to the extent possible and
reasonable, accomplishes the desired purposes and effects.
15.3 Except for the rights described in Article VI above, if a Shareholder
fails to promptly demand compliance with any one of the provisions of
this Agreement, or with any one of the rights related to this
Agreement, or fails to exercise any one of the prerogatives provided
hereunder, such failure shall not be considered to be a waiver of such
provisions, rights or prerogatives, and it shall not operate as
novation and shall in no way affect the validity of this Agreement.
15.4 The provisions of this Agreement are irrevocable and irreversible and
are binding upon the Shareholders, their successors on any account,
legal representatives and assignees.
15.5 This Agreement may not be transferred or assigned to third parties,
either wholly or in part, except in the cases provided for in this
instrument.
15.6 This Agreement shall be filed at the Company's head offices and shall
be available for any Shareholder.
15.7 This Agreement may only be amended in writing and such amendment shall
only be effective upon execution by the Shareholders and other
intervening parties.
15.8 SENDAS and CBD Companies shall exert all efforts to arrive at an
amicable composition within a term of thirty (30) days concerning any
divergence that may arise during the term of effectiveness of this
Agreement. If upon expiration of such term the Shareholders fail to
arrive at a consensus, any of the Shareholders may submit the
divergence to arbitration, on the terms of Law No. 9307/96. The
arbitration shall be coordinated by the Chamber of Conciliation and
Arbitration of the Xxxxxxx Xxxxxx Foundation - FGV - pursuant to its
regulations. The site for the arbitration shall be the City of Rio de
Janeiro. For any writs of prevention prior to installation of the
arbitration or for execution of the arbitration award, the jurisdiction
shall be of the Courts of the City of Rio de Janeiro, with exclusion of
any other court, no matter how privileged it may be.
15.9 Any vote contrary to the provisions of this Agreement and manifested in
a shareholders' meeting or in a meeting of the Board of Directors of
the Company shall be deemed null, invalid and ineffective, and Chairman
of the body will have to declare such nullity, invalidity or
ineffectiveness of the vote.
This Agreement is executed in two (2) counterparts of equal content and form.
Rio de Janeiro, February 29, 2004
COMPANHIA BRASILEIRA DE DISTRIBUICAO
SENDAS S.A.
SE SUPERMERCADOS LTDA.
NOVASOC COMERCIAL LTDA.
SENDAS DISTRIBUIDORA X.X.
XXXXXX XXXXXXX XXXXXX
SENDAS EMPREENDIMENTOS E PARTICIPACOES LTDA.
PAO DE ACUCAR S.A. INDUSTRIA E COMERCIO
PENINSULA PARTICIPACOES LTDA.
NOVA PENINSULA PARTICIPACOES S.A.
ABILIO DOS XXXXXX XXXXX
