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EXHIBIT 10.19
ALL SECTIONS MARKED WITH TWO ASTERISKS (**) REFLECT PORTIONS WHICH
HAVE BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION BY FLOUR CITY ARCHITECTURAL METALS, INC. AS PART OF A REQUEST
FOR CONFIDENTIAL TREATMENT.
SHAREHOLDER AGREEMENT
THIS AGREEMENT dated as of January 6th, 1998 (the "Agreement") is by and
among IMSALUM, S.A. de C.V., a Mexico corporation ("IMSALUM"), and Flour City
Architectural Metals (Pacific) Ltd., a British Virgin Islands corporation
("FCAM"), with reference to the facts set forth in the Recitals below.
RECITALS
A. Purpose. The parties to this Agreement desire to form a joint venture
corporation named FIMSAM, S.A de C.V. (FIMSAM) on the terms and conditions set
forth herein for the primary purpose of fabricating assemblies, units and/or
prefabricated panels of aluminum extrusions for curtain wall projects.
B. The Shareholders agree that the Company will be formed with the initial
minimum capital stock of ** .
C. The Shareholders agree that the Company shall be capitalized by the
Shareholders as follows:
IMSALUM: a total of U.S. **
** this amount includes the initial contribution. (Mentioned
in sub paragraph B, above.)
FCAM: a total of **
** to be made by: the transfer of FCAM Equipment (subject to approved
appraisal by IMSALUM and FIMSAM according to procedure in Annex 1); the use of
the FCAM Intellectual Property valued in ** ; and the sum of
** (this amount may vary subject to the results of the appraisal of
the Equipment above referred).
D. In consideration for the contribution above mentioned IMSALUM will be
the holder of the ** of the outstanding capital stock of the Company and FCAM
will be the holder of the ** .
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and premises set
forth below, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
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ARTICLE I
SECTION 1.01. DEFINITIONS. As used in this Agreement, the following terms
shall have the meanings specified below:
"Agreement" shall have the meaning set forth in the preamble.
"Affiliate" shall mean, when used with respect to a specified Person,
another Person that directly, or indirectly through one or more intermediaries,
controls or is controlled by or is under common control with the Person
specified.
"Applicable Law" shall mean all applicable provisions of all (i)
constitutions, treaties, statutes, laws (including common law), rules,
regulations, ordinances or codes of any governmental authority, and (ii) orders,
decisions, injunctions, judgments, awards and decrees of any governmental
authority.
"Articles" shall mean the Articles of Incorporation of FIMSAM.
"Bankruptcy" shall mean, with respect to any Person, (i) the commencement,
under any bankruptcy, reorganization, arrangement, adjustment of debt, relief of
debtors, dissolution, insolvency or liquidation or similar Applicable Law of any
jurisdiction, whether now or hereafter in effect, by such Person of a case or
proceeding seeking (A) the entry as to such Person of an order of relief, (B)
such Person's own bankruptcy, liquidation, reorganization, rehabilitation or
composition or adjustment of debts, or (C) a suspension or moratorium of
payments; (ii) the commencement against such Person of any case or proceeding of
the type described in clause (i) of this definition which remains undismissed
for a period of sixty (60) days; (iii) the appointment of a custodian, trustee,
administrator or similar official under any Applicable Law described in clause
(i) of this definition with respect to such Person, or the taking charge by such
custodian, trustee, administrator or similar official, of all or any substantial
part of the property of such Person; (iv) any adjudication that such Person is
insolvent or bankrupt; (v) the entering of any order of relief in, or other
order approving, any case or proceeding of the type described in clause (i) of
this definition; (vi) the making by such Person of a general assignment for the
benefit of its creditors; (vii) the failure by such Person to pay, or the
statement by such Person that it is unable to pay, or shall be unable to pay,
its debts generally as they become due; (viii) the calling by such Person of a
meeting of its creditors with a view to arranging a composition or adjustment of
its debts; (ix) any indication by such Person, either by an act or failure to
act, of its consent to, approval of or acquiescence in, any of the actions,
orders or events described in the foregoing clauses of this definition; or (x)
the taking of any corporate or similar action by such Person for the purpose of
effecting any of the actions, orders or events described in the foregoing
clauses of this definition.
"Board" shall mean the Board of Directors of FIMSAM.
"Certified Public Accountants" shall mean the independent public
accountants selected
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by the Board of FIMSAM.
"Closing" shall mean the sale and purchase of the FIMSAM Common Stock as
provided hereunder.
"Closing Date" shall mean the date on which the Closing shall occur.
"Common Stock" shall mean any and all shares or other equivalents (however
designated) of FIMSAM's equity securities.
"Company" shall mean FIMSAM.
"FIMSAM Business Plan" shall mean the annual business plan and budget for
the Company as approved by the Board.
"FCAM Equipment" shall mean that equipment set forth on Exhibit "A" hereto
which is utilized in the fabrication of curtain wall panels, units, assemblies
and/or pre-assemblies made out of metal and aluminum extrusions.
"FCAM Intellectual Property" shall mean certain Intellectual Property
owned by FCAM relating to the fabrication of curtain wall panels, units,
assemblies, and/or pre-assemblies made out of metal and aluminum extrusions.
"GAAP" shall mean Mexico generally accepted accounting principles.
"Intellectual Property" shall mean patents, patent applications, patent
rights, trademarks, trademark registrations, trademark applications, service
marks, business marks, trade names, brand names, all other names and slogans
embodying business or product goodwill (or both), copyright registrations,
copyrights (including those in computer programs, software, including all source
code and object code, development documentation, programming tools, drawings,
specifications and data), trade secrets, know-how, mask works, industrial
designs, formulae, processes and technical information, including confidential
and proprietary information, and any rights under licenses to any of the
foregoing, whether or not subject to statutory registration or protection.
"Person" shall mean any individual, firm, corporation, partnership, group,
trust, joint venture, governmental authority or other entity, and shall include
any successor (by merger or otherwise) of such entity.
"Shareholder" or "Stockholder" shall mean an owner of Common Stock.
"Shares" shall mean shares of Common Stock.
"Subsidiary" of any Person shall mean a corporation, company or other
entity (i) more than 50% of whose outstanding shares or securities (representing
the right to vote for the election
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of directors or other managing authority) are, or (ii) which does not have
outstanding shares or securities (as may be the case in a partnership, joint
venture or unincorporated association), but more than 50% of whose ownership
interest representing the right to make decisions for such other entity is, now
or hereafter, owned or controlled, directly or indirectly, by such Person, but
such corporation, company or other entity shall be deemed to be a Subsidiary
only so long as such ownership or control exists.
"Tax or Taxes" shall mean all federal, state, local and foreign taxes,
assessments and other governmental charges, including (i) taxes based upon or
measured by gross receipts, income, profits, sales, use or occupation, (ii)
value added, ad valorem (including the 2% ad valorem tax on assets), transfer,
franchise, withholding, payroll, employment, excise or property taxes, (iii) all
interest, penalties and additions imposed with respect to such amounts and (iv)
any obligations under any agreements or arrangements with any other Person with
respect to such amounts.
SECTION 1.02. TERMS GENERALLY. The definitions in Sections 1.01 and this
1.02 shall apply equally to both the singular and plural forms of the terms
defined. Whenever the context may require any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words "include",
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation." All references herein to Articles, Sections, Exhibits and Schedules
shall be deemed references to Articles and Sections of, and Exhibits and
Schedules to, this Agreement unless the context shall otherwise require. The
headings of the Articles and Sections are inserted for convenience of reference
only and are not intended to be a part of or to affect the meaning or
interpretation of this Agreement. Unless the context shall otherwise require,
any reference to any agreement or other instrument or statute or regulation are
to it as amended and supplemented from time to time (and, in the case of a
statute or regulation, to any successor provision). Any reference in this
Agreement to a "day" or a number of "days" (without the explicit qualification
of "Business") shall be interpreted as a reference to a calendar day or number
of calendar days. If any action or notice is to be taken or given on or by a
particular calendar day, and such calendar day is not a Business Day, then such
action or notice shall be deferred until, or may be taken or given, on the next
Business Day.
ARTICLE II
BOARD OF DIRECTORS; OFFICERS
SECTION 2.01. PROVISIONS OF ARTICLES AND BYLAWS RELATING TO BOARD OF
DIRECTORS AND MANAGEMENT. The parties shall take all means necessary to ensure
that the articles of incorporation (the "Articles") and the bylaws (the
"Bylaws") of FIMSAM shall provide that: (a) the Board of Directors shall consist
of five members, with three (3) members elected by
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ALL SECTIONS MARKED WITH TWO ASTERISKS (**) REFLECT PORTIONS WHICH
HAVE BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION BY FLOUR CITY ARCHITECTURAL METALS, INC. AS PART OF A REQUEST
FOR CONFIDENTIAL TREATMENT.
IMSALUM and two (2) members elected by FCAM; (b) if any director dies, retires,
resigns or otherwise ceases to serve as a director, the Stockholder who
nominated such director shall elect his or her replacement; (c) a member of the
Board of Directors may be removed by the Shareholder who elected him with or
without cause; (d) a quorum of the board shall consist of four (4) members; (e)
any resolution or other action of the Board shall require an affirmative vote of
a majority of the directors of the Board at a meeting of which a quorum is
present; and (f) the Board may act by written consent rather than by meeting,
but any written consent must be unanimous. At the Closing the Shareholders shall
adopt a resolution directing the Board to appoint an FCAM designee as the
president ("President") of the Company for the first fiscal year, and directing
the Board to appoint an IMSALUM nominee as the President in the second fiscal
year, and thereafter alternating between FCAM nominees and IMSALUM nominees on
an annual basis. The Articles and Bylaws shall provide that if the President of
the Company dies, resigns, becomes disabled, or is removed during his annual
term, then the Board shall fill the resulting vacancy with a designee of either
FCAM or IMSALUM dependent upon which party was entitled to appoint the President
for the particular annual term.
ARTICLE III
PURCHASE AND SALE OF SHARES
SECTION 3.01. PURCHASE OF SHARES.
(a) At the Closing, in reliance upon the representations and
warranties set forth in this Agreement, and upon the terms and subject to the
conditions set forth herein, the Company shall issue to IMSALUM and IMSALUM
shall purchase ** of the Shares of the Company for a total amount of
** .
(b) At the Closing, in reliance upon the representations and
warranties set forth in this Agreement, and upon the terms and subject to the
conditions set forth herein, the Company shall issue to FCAM and FCAM shall
purchase ** of the Shares of the Company for ** , this amount will be
paid by the transfer to FIMSAM of the FCAM Equipment (subject to approved
appraisal by IMSALUM and FIMSAM according to procedure in Annex 1); the use of
all of the FCAM Intellectual Property; and the sum of ** or more if
there should be an adjustment in the price of the Equipment due to the appraisal
of the same.
The dismantle, freight expenses, export and import taxes and duties, repairs
etc. of the Equipment to be contributed by FCAM will be paid solely by FCAM.
Section 3.02. CLOSING.
(a) The Closing will take place on a date to be specified by the
parties after satisfaction or waiver of the last of the conditions set forth
herein to be met to the satisfaction of, or waived by, each party. The Closing
shall occur at a place to be agreed by the parties.
(b) At the Closing (i) IMSALUM shall deliver to the Company, by
check or
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ALL SECTIONS MARKED WITH TWO ASTERISKS (**) REFLECT PORTIONS WHICH
HAVE BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION BY FLOUR CITY ARCHITECTURAL METALS, INC. AS PART OF A REQUEST
FOR CONFIDENTIAL TREATMENT.
wire transfer, the sum of ** ; (ii) FCAM shall deliver to the Company
the sum of ** , this amount will be delivered via transfer of the FCAM
Equipment (subject to approved appraisal by IMSALUM and FIMSAM according to
procedure in Annex 1), free and clear of any liens or encumbrances, and shall
deliver to the Company by check or wire transfer the sum of ** ; and
(iii) the Company shall deliver to IMSALUM and FCAM certificates representing
the IMSALUM Shares and the FCAM Shares, registered in the name of IMSALUM and
FCAM respectively.
SECTION 3.03. RESTRICTIONS ON TRANSFER OF SHARES. Each Shareholder agrees
not to transfer, assign, pledge, or in any way alienate any of its common stock
in the Company, or any right or interest therein, whether voluntarily or by
operation of law, or by gift or otherwise, without the prior written consent of
the other Shareholder except a transfer which meets the requirements of this
Agreement. All common stock of the Company now owned or hereafter acquired,
including, but not limited to, any common stock acquired pursuant to a stock
option plan, stock rights offering, an employee benefit plan, or by purchase,
gift, transfer, inheritance or otherwise shall be subject to the terms and
conditions hereof. Any purported transfer in violation of any provision of this
Agreement shall be null and void and shall not operate to transfer any interest
or title in the purported transferee.
SECTION 3.04. CERTAIN TRANSFERS. Notwithstanding anything to the contrary
contained in this Agreement, it is expressly agreed that IMSALUM and FCAM shall
have the right to transfer any of its common stock in the Company to any
corporation, partnership, limited liability company or trust being controlled
directly or indirectly by them, in the understanding, that such control shall be
reflected on the power to exercise more than half of the voting rights, or in
the ownership through record, or beneficially of more than half of the
outstanding shares of capital stock or voting securities. Moreover, the
Shareholders will also be entitled to transfer their interest in the Company to
their parent company. In the event of a transfer pursuant to this Section 3.04.
to someone who is not a Shareholder, the transferee shall (by written supplement
to this Agreement) become a party to this Agreement and shall thereafter hold
its common stock subject to the terms, covenants and conditions contained in
this Agreement.
SECTION 3.05. RIGHT OF FIRST REFUSAL. Except for transfers permitted under
Section 3.04. of this Agreement, no Shareholder (the "Offeror") shall transfer
all or part of its capital stock (the "Offered Shares") without first giving the
remaining Shareholders (the "Offerees") the option to purchase the same, upon
the following terms and conditions:
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Each Offeree shall have the option for a period of thirty (30) calendar days
after receipt of the Offer within which to determine whether or not to accept
such Offer. If any Offeree elects to accept the Offer, such Offeree shall,
within such thirty (30) calendar day period, so notify the Offeror in writing.
Any acceptance shall be for all and not for part of the Offered Shares. If more
than one Offeree elects to accept the Offer, the Offerees shall purchase the
Offered Shares in proportion to their respective holding of shares or in such
other proportion as they may agree between themselves.
In the event that any one or more Offerees accept the Offer within the required
thirty (30) calendar day period, the closing with respect to the purchase of the
Offered Shares shall take place within sixty (60) the calendar days after the
latest date of acceptance of the Offer pursuant to notice from the Offeror
specifying the date of closing and, to the extent more than one Offeree elected
to accept the Offer, the number of Offered Shares to be sold to each such
Offeree and the purchase price therefor; provided, however, that if any
governmental or regulatory approval of the purchase is required, then the time
for the payment to be made by the corresponding Offeree(s) shall be extended for
such additional time as is necessary to obtain such approval. At the closing,
the Offeree(s) shall deliver to the Offeror the purchase price specified in the
Offer, against receipt of stock certificates evidencing the Offered Shares duly
endorsed for transfer. Also at closing the nominees of the Offeror (i.e.
directors and officers) shall resign their positions in the Company as the case
may be.
In the event that one of the Offerees to whom the Offer was made declines such
Offer, the right to purchase the shares will correspond to the other Offerees
who will have the option for an additional period of thirty (30) calendar days
after the date of the refusal from any such Offeree to make the purchase of
these Offered Shares, or the elapsing of the thirty (30) calendar day period.
If the Offer and any offer then outstanding from the same Offeror to sell shares
of the Company made pursuant to this Section 3.05. are not accepted by any
Offeree within such thirty (30) calendar day period, then the Offeror shall, for
a period of sixty (60) calendar days following the expiration of the aforesaid
thirty (30) calendar day period, be free to sell all (but not less than all) of
the Offered Shares to an unrelated third party; provided; however, (a) that the
selling price shall be not less than, and the terms shall be not more favorable
to the purchaser than, those set forth in the Offer, (b) if the name of
purchaser has not been yet revealed to the Offeree(s), the Offeror shall
previously to the transfer do so, in order to comply with the provisions
mentioned before, and (c) if the shares are not sold or otherwise transferred
to the third party within a sixty (60) calendar day period, then the sale or
transfer of the shares shall once again be subject to the option rights of the
remaining Shareholders, pursuant to the terms of this Section 3.05.
All notices pursuant to this Section 3.05. shall be sent by the Offeror to the
Offerees at the addresses appearing in the Stock Registry Book of the Company,
by hand, telex or courier service, and shall be effective upon actual receipt by
the addressee thereof.
Any change of property of the share control of the Shareholders will be
considered as a share transfer under this provision and therefore will be
subject to the approval of the non-transferring
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Shareholders. In the event that the non-transferring Shareholders do not approve
the transfer transaction, the non-transferring Shareholders will have the
preferential right to acquire the shares of the Company from the Shareholders
whose controlling shares are to be transferred at a purchase price that shall
not be less than the Net Book Value of the stock.
Any share transfer made in violation of that stated in this Section 3.05. will
be considered null and void, and should not operate to transfer any interest or
title in the purported transferee.
ARTICLE IV
MANAGEMENT OF THE COMPANY
SECTION 4.01. BOARD OF DIRECTORS. Except as reserved to the Shareholders
in this Agreement, the business and affairs of the Company shall be managed
under the direction of the Board, and the Board shall have all power and
authority to manage, and direct the management, the business and affairs of the
Company. Any power not delegated pursuant to a policy of delegation adopted by
the Board shall remain with the Board. Approval by or action taken by the Board
in accordance with the Articles, Bylaws and this Agreement shall constitute
approval or action by the Company. The Board will review operating results
against the FIMSAM Business Plan, approve detailed capital expenditure
proposals, and make major policy decisions and recommendations. All contemplated
borrowings by the Company that are not included in the FIMSAM Business Plan
previously approved by the Board, must be approved or ratified by the Board to
be effective and to obligate the Company thereunder.
SECTION 4.02. MEETINGS OF THE BOARD. The Board shall meet on the last
business day of the second week after each calendar quarter and/or such other
dates as may be approved by resolution of the Board. In addition, special
meetings shall be held upon the written request of any Board member upon a
minimum of ten (10) days prior written notice or as otherwise provided in the
Bylaws of the Company. Each Shareholder shall bear the travel costs of the Board
members appointed by it when attending Board meetings.
SECTION 4.03. EXAMINERS. There shall be an even number of examiners, but
in no event less than two. One-half the total number of examiners shall be
appointed by FCAM and the remaining one-half of the examiners shall be appointed
by IMSALUM. Until otherwise agreed between the parties hereto, the total number
of examiners shall be two.
SECTION 4.04. CHAIRMAN AND VICE CHAIRMAN. One member of the Board shall be
the Chairman of the Company and shall in the first year of this Agreement be
appointed by the Board from among members appointed by FCAM, and in the second
year by members appointed by IMSALUM, and alternating each fiscal year
thereafter between FCAM and IMSALUM. One
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member of the Board shall be the Vice Chairman of the Company and shall be
appointed by the Board from among the members appointed by the Shareholder not
then appointing the Chairman. The Chairman of the Company shall not have a
casting vote.
SECTION 4.05. ACTIONS AND MATTERS SUBJECT TO BOARD APPROVAL. Without
limiting the authority of the Board, the following actions shall only be taken
by the Company upon a majority vote or approval of the Board, and only if such
majority vote or approval includes the vote or approval of at least one Board
member designated by FCAM and one Board member designated by IMSALUM:
(a) The adoption and modifications of FIMSAM Business Plans (which may
include loan approvals on an annual basis) which shall be reviewed
and approved by the Board on an annual basis.
(b) Any borrowing of money by the Company or extension of credit to the
Company, not contemplated in the FIMSAM Business Plan.
(c) The adoption of business policies which are not contemplated in the
FIMSAM Business Plan.
(d) The approval of capital expenditures or acquisition of assets in
excess of U.S.$5,000 individually or U.S.$20,000 in the aggregate in
any fiscal year or those not provided for in the then current FIMSAM
Business Plan, or capital expenditures regardless of amount, should
the gross sales of the Company fall more than 10% below those
projected in the current FIMSAM Business Plan on which the capital
expenditures are based.
(e) The sale, transfer mortgage, lease pledge or other disposition of
the property, assets or goodwill of the Company inconsistent with
the current FIMSAM Business Plan or outside the ordinary course of
business having a value in excess of U.S$5,000 individually or
U.S.$20,000 in the aggregate in any fiscal year, or the acquisition
or purchase of property or assets, having a value in excess of
U.S.$5,000 individually or U.S$20,000 in the aggregate in any fiscal
year and which are not provided for in the current FIMSAM Business
Plan and which are outside the ordinary course of business.
(f) Acquisition of any interest in any business or company whether
through the purchase of assets or stock, the granting or guarantee
and foreclosure by fianzas, avales or otherwise of any loans to any
third party, other than pursuant to sales or leases to customers in
the ordinary course of business.
(g) The development or sale of products not currently included in the
corporate purposes of the Company or in any product line, or not
contemplated in a FIMSAM Business Plan.
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(h) The expenditure of research or development funds not otherwise
included in the then current FIMSAM Business Plan.
(i) The entry into leases for equipment, real property, or manufacturing
facilities.
(j) The acquisition or sale of real property or facilities other than
those provided for in the current FIMSAM Business Plan.
(k) Actions taken in response to a force majeure which requires any
significant deviation from the then current FIMSAM Business Plan.
(l) Entry into any agreement, other than those contained in the current
FIMSAM Business Plan, with a Board member, officer, General Manager
or Shareholder of the Company or any affiliate or subsidiary
thereof, or with any family member of the foregoing within the
fourth degree.
(m) Entry into any agreement which could have a material effect on the
operations or prospects of the Company.
(n) Any significant change in the accounting policies of the Company or
its independent accountants.
(o) The appointment and or removal of the General Manager(s) and the
granting of any powers and authority to the General Manager(s) and
or any third party, not otherwise provided for in this Agreement or
the current FIMSAM Business Plan.
(p) The declaration and payment of dividends.
(q) The issuance or redemption of the Company's shares.
(r) The amendment of the Company's Articles or Bylaws.
(s) The compensation of any Board member, officer or General Manager,
contrary to the provisions therefor in the current FIMSAM Business
Plan.
(t) The selection of the Company's independent public accountants.
SECTION 4.06. NO INDIVIDUAL AUTHORITY. Except as otherwise expressly
provided in this Agreement, no Shareholder, acting alone, shall have any
authority to act for, or undertake or assume any obligation or responsibility on
behalf of, the other Shareholder or the Company.
SECTION 4.07. EXECUTIVE OFFICERS.
(a) The Board shall appoint a General Manager who is acceptable to
both FCAM and IMSALUM to manage the day-to-day operations of the Company, carry
out the
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directions of the Board and effectuate the FIMSA Business Plan. The General
Manager shall devote his full time and efforts to the Company. The General
Manager shall have the authority to make all day-to-day decisions for the
Company which are not reserved for the Board or other Person pursuant to the
Articles, Bylaws or this Agreement.
(b) The General Manager shall prepare, or cause to have prepared,
and submit to the Board, as soon as practicable after the Closing Date and at
least (60) days prior to the commencement of each subsequent fiscal year, an
annual budget and a strategic plan (the "FIMSAM Business Plan") which describes
the business plan and anticipated revenues and expenditures for the Company for
such fiscal year. Each FIMSAM Business Plan approved by the Board shall remain
operative until amended by the Board or until a successor has been approved by
the Board. Each FIMSAM Business Plan, and any amendment thereto, must be
unanimously approved by the Board.
(c) The Board shall unanimously agree on and appoint a Treasurer and
Secretary (together with the President, each an "Executive Officer") with such
duties as may be established by the Board.
SECTION 4.04. BANK ACCOUNTS. The Company shall maintain bank accounts in
such banks as the Board may designate exclusively for the deposit and
disbursement of all funds of the Company. All funds of the Company shall be
promptly deposited in such accounts. The Board from time to time shall authorize
signatories for such accounts, upon unanimous approval of the Board.
ARTICLE V
ADDITIONAL CAPITAL REQUIREMENTS
SECTION 5.01. ADDITIONAL CAPITAL. The Board may determine that additional
capital is required by the Company for capital expenditures or to support or
expand existing operations. Any determination by the Board that the Company
requires additional capital shall be ratified and approved by the unanimous vote
of both FCAM and IMSALUM as Shareholders. Upon such a determination by the Board
and the approval of both FCAM and IMSALUM, each Shareholder shall promptly
contribute its respective portion of the total capital contribution required,
which shall be applied to additional paid in capital. For purposes of this
Agreement IMSALUM shall contribute 55% of any such additional capital
requirements and FCAM shall contribute 45% of any such additional capital
requirements. Upon any capital call of the Company which is approved by the
Shareholders as set forth hereinabove, then in the event a Shareholder fails to
contribute its corresponding portion of the total capital contribution in the
time period specified by the Board such Shareholder's participation, including
voting rights in the Company shall be diluted, at such time as the other
Shareholder acts to contribute to the Company the unpaid portion required to be
contributed by the Shareholder who is in default.
SECTION 5.02. LOANS BY SHAREHOLDERS. Any Shareholder may lend funds to the
Company upon the unanimous approval of the Board. Any loan made by a Shareholder
to the
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ALL SECTIONS MARKED WITH TWO ASTERISKS (**) REFLECT PORTIONS WHICH
HAVE BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION BY FLOUR CITY ARCHITECTURAL METALS, INC. AS PART OF A REQUEST
FOR CONFIDENTIAL TREATMENT.
Company shall not be treated for any purpose as an equity contribution and shall
be upon such terms and conditions (including interest) as the Board and the
Shareholder shall determine.
ARTICLE VI
PRINCIPAL OFFICE AND PLANT
SECTION 6.01. PRINCIPAL OFFICE AND PLANT. IMSALUM and FCAM agree to locate
a facility within Monterey, Mexico to serve as the Company's principal office
and plant ("Plant") prior to the Closing hereunder. Immediately following the
Closing, FIMSAM shall act to execute and enter into a formal leasehold agreement
for the Plant on terms and conditions which are unanimously approved by the
Board.
ARTICLE VII
FABRICATION REQUIREMENTS OF FCAM
SECTION 7.01. FABRICATION REQUIREMENTS OF FCAM. FCAM and its Affiliates
agree that it will first present any of its external metal and/or aluminum
fabrication requirements (those not completed directly by FCAM and its
Affiliates), for projects within North, Central and South America arising after
the Closing to the Company for quotation prior to any other independent third
party. FCAM further agrees that, except as provided herein, it will not use any
other independent third party for its metal and/or aluminum fabrication
requirements for projects within North, Central and South America, unless the
proposed quote by the Company for any given project is ** or more higher than a
quote received by FCAM from an independent third party (with shipping costs,
import duties, fees and taxes included in determining the total metal
fabrication project costs). In the event the quote by the Company for any given
project is ** or more higher than any quote received by FCAM from an independent
third party as determined above, or if the timing for delivery is materially
longer than the delivery schedule set forth by the independent third party, and
if the quality of materials of the Company is less than the quality of the
independent third party, then FCAM shall be entitled to utilize the services of
such independent third party for the specified project with no further
obligation hereunder; provided that, the Company shall have ten (10) days from
the date FCAM provides notice of a lower qualifying quote to submit a counter
offer (revised quote) which would reduce the applicable costs to FCAM below the
** threshold and/or result in a revised delivery schedule satisfying the
provisions of this Section 7.01 for the specified project.
SECTION 7.02 CONSUMPTION. During the first fiscal year of the Company's
operations FCAM agrees to use its best efforts to purchase an average of 200
tons of aluminum metal each month, subject to the provisions of Section 7.01
herein above.
SECTION 7.03 PURCHASE. The Shareholders of the Company agree that the
Company will purchase from CUPRUM, S.A. de C.V. all its requirements of aluminum
to be needed in all projects in which the Company participates.
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ALL SECTIONS MARKED WITH TWO ASTERISKS (**) REFLECT PORTIONS WHICH
HAVE BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION BY FLOUR CITY ARCHITECTURAL METALS, INC. AS PART OF A REQUEST
FOR CONFIDENTIAL TREATMENT.
SECTION 7.04 GROSS MARGIN. The anticipated sales price for products sold
by the Company to FCAM should have an intended margin of ** on earnings before
interest and taxes, subject to Section 7.01 herein above.
ARTICLE VIII
COVENANT NOT TO COMPETE
SECTION 8.01. COVENANT NOT TO COMPETE. IMSALUM and FCAM, and their
respective Affiliates, individually covenant and agree that it will not directly
or indirectly engage in or possess any interest in any activity, the purpose or
business of which is similar to the business of the Company (the fabrication of
aluminum extrusions for curtain wall projects), within North, Central or South
America during the period it is a Shareholder of the Company and for a period of
one (1) year following the date it ceases to be a Shareholder of the Company;
provided, that, existing activities as of Closing Date of IMSALUM and FCAM, and
their respective Affiliates, even if similar to the business of the Company
shall not be subject to the provisions of this Section 8.01.
ARTICLE IX
CONDITIONS TO CLOSING
SECTION 9.01. CONDITIONS TO EACH PARTY'S OBLIGATIONS. The obligations of
IMSALUM and FCAM to purchase and pay for their respective Shares and the
obligations of the Company to issue the Shares are subject to the satisfaction
or waiver, as of the Closing Date, of the following conditions:
(a) Governmental Approvals. All governmental approvals necessary for
the consummation of the Agreement shall have been obtained or made and all
waiting periods imposed by any governmental authority or applicable law shall
have expired.
(b) No Injunctions or Litigation. No injunction restraining or
preventing the consummation of the Agreement shall be in effect, and no
litigation shall be pending or threatened by or before any governmental
authority that would restrain or prevent the consummation of the Agreement.
(c) Approvals. All approvals necessary for the consummation of the
Agreement shall have been obtained.
(d) Articles of Incorporation. The Articles of Incorporation, or
Estatutos, for the Company shall be in a form acceptable to both IMSALUM and
FCAM, and any provision required or deemed necessary to effect or enforce the
terms of this Agreement shall be provided for therein.
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(e) Bylaws. The Bylaws for the Company shall be in a form acceptable
to both IMSALUM and FCAM, and any provision required or deemed necessary to
effect or enforce the terms of this Agreement shall be provided for therein.
(f) Insurance. The Company shall have obtained such insurance, and
shall have adopted a plan for the purchase of such additional insurance, as
IMSALUM and FCAM shall reasonably require.
SECTION 9.02. CONDITIONS TO IMSALUM'S OBLIGATIONS. The obligations of
IMSALUM to purchase and pay for its Shares and to consummate the Closing
hereunder is subject to the satisfaction (or waiver by IMSALUM), as of the
applicable Closing Date, of the following additional conditions:
(a) Accuracy of Representations and Warranties. The representations
and warranties of the Company and FCAM made in this Agreement shall be true and
correct in all material respects as of the Closing Date, as if made on and as of
the Closing Date.
(b) Performance of Obligations. The Company and FCAM shall have
performed or complied with in all material respects their respective covenants
and agreements contained in this Agreement required to be performed or complied
with by the Company or FCAM on or prior to the Closing Date.
(c) Proceedings Satisfactory. All corporate and legal proceedings
required to be taken by the Company and FCAM in connection with the Agreement
and all documents and papers relating to such transactions shall be reasonably
satisfactory in form and substance to IMSALUM and its counsel, and IMSALUM shall
have received all such certified or other copies of all such documents as
IMSALUM or its counsel shall reasonably require.
SECTION 9.03. CONDITIONS TO FCAM'S OBLIGATIONS. The obligations of FCAM to
purchase and pay for its Shares and to consummate the Closing hereunder is
subject to the satisfaction (or waiver by FCAM), as of the applicable Closing
Date, of the following additional conditions:
(a) Representations and Warranties. The representations and
warranties of the Company and IMSALUM made in this Agreement shall be true and
correct in all material respects as of the Closing Date, as if made on and as of
the Closing Date.
(b) Performance of Obligations. The Company and IMSALUM shall have
performed or complied with in all material respects their respective covenants
and agreements contained in this Agreement required to be performed or complied
with by the Company or IMSALUM on or prior to the Closing Date.
(c) Proceedings Satisfactory. All corporate and legal proceedings
required to be taken by the Company and IMSALUM in connection with the Agreement
and all documents and papers relating to such transactions shall be reasonably
satisfactory in form and substance to
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FCAM and its counsel, and FCAM shall have received all such certified or other
copies of all such documents as FCAM or its counsel shall reasonably require.
ARTICLE X
REPRESENTATIONS AND WARRANTIES
SECTION 10.01. REPRESENTATIONS AND WARRANTIES OF IMSALUM AND FCAM. Each of
IMSALUM and FCAM represents and warrants to each other party that, as of the
date of this Agreement and as of the Closing Date, with respect to itself:
(a) Organization and Standing. Such party:
(i) is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation; and
(ii) has all requisite corporate power and corporate authority
necessary to enable it to use its corporate name and to own, lease or otherwise
hold its properties and assets and to carry on its business as presently
conducted.
(b) Authority. (i) Such party has all requisite corporate power and
corporate authority to enter into this Agreement and to consummate this
Agreement. The execution and delivery by such party of this Agreement and the
consummation by such party of this Agreement have been duly authorized by all
necessary corporate action on the part of such party. This Agreement has been,
or will at the Closing have been, duly executed and delivered by such party and
constitutes, or will at the Closing constitute, its legal, valid and binding
obligations, enforceable against such party in accordance with its respective
terms. The execution and delivery by such party of this Agreement do not and did
not, and the consummation of the Agreement and compliance with the terms of the
Agreement will not, conflict with, result in any violation of or default (with
or without notice or lapse of time or both) under, give rise to a right of
termination, cancellation or acceleration of any material obligation or to the
loss of any material benefit under or result in or require the creation,
imposition or extension of any lien upon any of its properties or assets under
(a) any contract, (b) any provision of its constitutive documents or (c) any
judgment or law, except, with respect to clauses (a) or (c), for such conflicts,
violations, defaults, rights or losses that, individually or in the aggregate,
would not have a material adverse effect on such party's ability to perform its
obligations under this Agreement in accordance with their respective terms. No
governmental approval or approval of any other Person is required to be obtained
or made by such party or any of its Affiliates in connection with the execution
and delivery of this Agreement or the consummation of the Agreement.
(c) Brokers or Finders. No Person is or will be entitled to any
broker's or finder's fee or any other commission or similar fee from such party
in connection with this Agreement, or any agreements referenced herein.
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(d) FCAM hereby represents and warrants to IMSALUM that FCAM is the
sole legal and beneficial owner of the contributed Equipment described in Annex
1, with good and marketable title thereto free and clear of all liens and
encumbrances;
(e) FCAM hereby represents and warrants to IMSALUM that the
machinery and equipment forming part of the FCAM contributed assets is in good
operating condition and suitable for its intended purpose having regard to its
age and reasonable wear and tear.
ARTICLE XI
COVENANTS PENDING THE CLOSING
SECTION 11.01. COVENANTS PENDING THE CLOSING. From the date of this
Agreement to the Closing Date, IMSALUM and FCAM each agree (except to the extent
that the other party shall otherwise consent in writing) that each party shall
take all actions reasonably necessary or appropriate to ensure that the
conditions to Closing set forth herein to be satisfied by such party are
satisfied on or prior to the Closing Date and to obtain (and cooperate with the
other parties in obtaining) any governmental approvals required to be obtained
or made by it in connection with any of the transactions contemplated by this
Agreement.
ARTICLE XII
OTHER COVENANTS
SECTION 12.01. FINANCIAL STATEMENTS. The Company shall deliver to each
Shareholder:
(a) as soon as practicable following the end of each fiscal year
(and in any event not later than 60 days after the end of such fiscal year),
audited consolidated statements of income, changes in stockholders' equity and
cash flows of the Company for such year and a consolidated balance sheet of the
Company as at the end of such year, together with appropriate notes to such
financial statements, in each case setting forth in comparative form the
corresponding figures for the preceding fiscal year, together with an opinion
directed to the Company of independent public accountants to the effect that
such financial statements have been prepared in conformity with GAAP applied on
a basis consistent with prior years; and
(b) as soon as practicable following the end of each fiscal quarter
(and in any event not later than 15 days after the end of such fiscal quarter),
unaudited consolidated statements of income and cash flows of the Company for
such fiscal quarter and for the period from the beginning of the then current
fiscal year to the end of such fiscal quarter and a consolidated balance sheet
of the Company as at the end of such fiscal quarter, in each case setting forth
in comparative form the corresponding figures for the corresponding periods in
the preceding fiscal year all in reasonable detail and accompanied by a
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certificate from the principal accounting or financial officer of the Company to
the effect that such financial statements have been prepared under such
officer's supervision and that, although such financial statements do not
contain the footnotes and other disclosures required to be presented in interim
financial statements by GAAP, such financial statements have been prepared in
accordance with GAAP, consistently applied, subject to normal, recurring
year-end adjustments.
SECTION 12.02. ACCESS TO RECORDS. The books, accounts, and records of the
Company shall at all times be maintained at the principal office of the Company.
Each Shareholder shall have access to and may inspect and copy the books,
accounts, and records of the Company.
SECTION 12.03. USE OF TRADE NAME. The Company shall be permitted by FCAM
the use of the trade name "Flour City Architectural Metals" and/or "FCAM", for
the sale of products manufactured by it, for that purpose, a trade xxxx use
agreement shall be entered between FCAM and the Company. The Company shall be
permitted by IMSALUM the use of the trade name "Cuprum", for the sale of
products manufactured by it, for that purpose, a trade xxxx use agreement shall
be entered between IMSALUM and the Company. Not withstanding anything herein
contained to the contrary the Company shall only be entitled to utilize the
"Flour City Architectural Metals" and or "FCAM" trademark or trade name during
the period that FCAM consents the same. Similarly, the Company shall only be
entitled the "Cuprum" trademark or trade name during the period IMSALUM consents
the same.
ARTICLE XIII
RESOLUTION OF DISPUTES
SECTION 13.01. ARBITRATION. Any controversy or claims arising out of or
relating to this Agreement or any breach thereof, including, without limitation,
any claim that this Agreement or any portion thereof, is invalid, illegal, or
otherwise voidable, shall be subject to mandatory arbitration before and in
accordance with the arbitration rules of the International Chamber of Commerce
("ICC"), said arbitration must be held in San Antonio, Texas and shall be
conducted by an arbitrator mutually appointed by the parties hereto. If both
parties fail to reach an agreement on the designation of such arbitrator, then
each party will individually appoint one arbitrator, and the two arbitrators so
appointed will then appoint a third arbitrator in order to reach an agreement on
the dispute. The cost of the arbitration, and of the single or third arbitrator,
shall be covered by the parties hereto on a 50%-50% basis, the costs of the
arbitrators appointed individually, will be covered by the appointing parties.
The award rendered by the arbitrators shall be final, not subject to appeal and
judgment may be entered in accordance with applicable law and in any court
having jurisdiction thereof.
SECTION 13.02. ABSENCE OF AGREEMENT. If IMSALUM and FCAM fail to reach an
agreement either at the Board of Directors level or at Shareholders Meeting
level and this causes an impasse situation which substantially affects the
normal course of business of the company, any of the
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Shareholders may submit an offer to purchase the stock of the other Shareholder
who shall, within 30 calendar days after receipt of the offer in writing,
resolve either, to sell its stock to the proposed purchase Shareholder or to
purchase the stock of the proposed purchaser Shareholder who shall be obligated
to sell at the same price and on the same terms it offered to purchase.
The purchase offer shall remain for all and no less than all the stock of the
company owned by the other Shareholder and the purchase price will be determined
by the proposed purchaser Shareholder and the proposed seller Shareholder and
such price shall not be less than the Net Book Value of the stock and not above
the calculation of the Net Book Value of the stock multiplied by "P/BV multiple"
of the Mexican Stock Exchange at the day of the transaction ("P/BV multiple")=
average of all the companies in the Mexican Stock Exchange); unless the parties
mutually agree otherwise, the Shareholders are obligated to follow up the
closing procedure described in this Section 13.02.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
SECTION 14.01. TERMINATION. If the Closing shall not have occurred on or
prior to ______________________, this Agreement and all obligations of the
parties hereunder shall terminate, unless extended by mutual agreement of the
parties.
SECTION 14.02. NOTICES. Except as expressly provided herein, notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier, or sent by facsimile as follows:
(a) if to IMSALUM:
Ave. Xxxxx Xxxx xx Xxxxxxxx Nte. 132,
Fraccionamiento El Nogalar,
San Xxxxxxx xx xxx Xxxxx, X.X. X.X. 00000
Xxxxxx.
Tel.: (000) 000-0000
Fax: (000) 000-0000
Attn.: Ing. Xxxxxx Xxxxx Xxxxx
with a copy to:
Grupo Imsa, S.A. de C.V.
Ave. Batallon de San Xxxxxxxx Xx. 000 Xxxx 00
Xxxxxxxxxxxxxxx Xxxxx Xxxxxxx
Xxxxx Xxxxxx, Nuevo Xxxx X.X. 00000
Xxxxxx
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Tel.: (000)000-0000
Fax: (000)000-0000
Attn.: Ing. Xxxxxxx Xxxxxxx Xxxxxxxx
(b) if to FCAM:
Flour City Architectural Metals
000 Xxxxxxxxx Xxxxx, Xxxxx 0
Xxxxxxx Xxxx, XX 00000
XXX
Xxx. Xxxxxxx Xxxxx
with a copy to:
Xxxxxxx X. Xxxxxxxx, Esq.
Xxxxxxx, Xxxxxx & Xxxxx
000 Xxxxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
XXX
or to such other address or attention of such other person as any party shall
advise the other parties in writing. All notices and other communications given
to a party hereunder in accordance with the provisions of this Agreement shall
be deemed to have been given on the date of receipt if by facsimile or hand
delivery, or three (3) days after dispatch by overnight courier.
SECTION 14.03. APPLICABLE LAW; CONSENT TO JURISDICTION. The validity,
construction and performance of this Agreement shall be governed by and
construed in accordance with the laws of the State of Texas, USA, applicable to
contracts executed in and performed entirely within such State. Each of the
parties hereto consent to the jurisdiction of any Court within the State of
Texas, USA.
SECTION 14.04. SEVERABILITY. If any provision of this Agreement shall be
held to be illegal, invalid or unenforceable, that provision will be enforced to
the maximum extent permissible so as to effect the intent of the parties, and
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby. If necessary to the effect the
intent of the parties, the parties will negotiate in good faith to amend this
Agreement to replace the unenforceable language with enforceable language which
as closely as possible reflects such intent.
SECTION 14.05. AMENDMENTS. This Agreement may be modified or waived only
by a written amendment signed by persons authorized to so bind each party.
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SECTION 14.06. WAIVER. The waiver by any party of any instance of any
other party's noncompliance with any obligation or responsibility herein shall
not be deemed a waiver of other instances or of any party's remedies for such
noncompliance.
SECTION 14.07. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same instrument, and
shall become effective when one or more counterparts shall have been signed by
each party and delivered to each other party.
SECTION 14.08. ENTIRE AGREEMENT. The provisions of this Agreement set
forth the entire agreement and understanding among the parties as to the subject
matter hereof and supersede all prior agreements, oral or written, and all other
communications between the parties relating to the subject matter hereof.
SECTION 14.09. ASSIGNMENT.
(a) No party shall assign this Agreement or any of its rights or
obligations hereunder without the prior written consent of the other party,
except that no such consent shall be required for a transfer by operation of law
in connection with a merger or consolidation of such party.
(b) Any attempted assignment of this Agreement in violation of this
Section shall be void and of no effect.
(c) This Agreement shall be binding upon, inure to the benefit of
and be enforceable by the parties hereto and their respective successors and
permitted assigns.
SECTION 14.10. SURVIVAL OF AGREEMENT. All covenants, agreements,
representations and warranties made by any party herein and in the certificates
or other instruments prepared or delivered in connection with or pursuant to
this Agreement shall be considered to have been relied upon by the other parties
and shall survive the Closing, regardless of any investigation made by the other
parties hereto or on their behalf.
SECTION 14.11. NO THIRD-PARTY BENEFICIARIES. This Agreement is for the
sole benefit of the parties and their permitted assigns and nothing herein
expressed or implied shall give or be construed to give to any Person, other
than the parties and such assigns, any legal or equitable rights hereunder.
SECTION 14.12. EXPENSES.
(a) Whether or not any of the transactions are consummated, all
costs and expenses incurred in connection with the Agreement shall be paid by
the party incurring such cost or expense, except as the parties shall otherwise
agree.
(b) The provisions of this Section shall remain operative and in
full force and
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effect regardless of the expiration of this Agreement.
SECTION 14.13. REMEDIES. In no event will any party be liable to the other
party for incidental damages, lost profits, lost savings, or any other
consequential damages, even if such party has been advised of the possibility of
such damages, resulting from the breach of its obligations under the Agreement.
SECTION 14.14. FURTHER ASSURANCES; EFFECTIVENESS.
(a) The parties shall use their best efforts to obtain and to assist
the other parties in obtaining promptly all necessary waivers, consents and
approvals from any governmental authority or any other person for any exercise
by any party of its rights under this Agreement. Upon reasonable request from
time to time, the parties shall execute and deliver all documents and
instruments and do all other acts that may be reasonably necessary or desirable
to give effect to the Agreement or the exercise by the other parties of their
respective rights hereunder.
(b) If any law of a country provides that the implementation of this
Agreement is subject to prior governmental approval in such country, this
Agreement shall have no effect in such country until such governmental approval
shall have been obtained.
SECTION 14.15. CONSTRUCTION. This Agreement has been negotiated by the
parties and their respective counsel and will be fairly interpreted in
accordance with its terms and without strict construction in favor of or against
any party.
IN WITNESS WHEREOF, IMSALUM and FCAM have duly executed this Agreement as
of the day and year first above written.
IMSALUM, S.A. de C.V. FLOUR CITY ARCHITECTURAL
METALS (PACIFIC) LTD.
By: /s/ XXXXXX X XXXXX By:
----------------------------- ---------------------------------
Name: XXXXXX X XXXXX Name:
----------------------------- ---------------------------------
Title: PRESIDENT Title:
----------------------------- ---------------------------------
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THE UNDERSIGNED SUBSIDIARY OF FLOUR CITY INTERNATIONAL, INC. GUARANTEES
THE PERFORMANCE OF ALL OBLIGATIONS REQUIRED TO BE PERFORMED BY FCAM UNDER THIS
AGREEMENT.
FLOUR CITY ARCHITECTURAL
METALS, INC.
By: /s/ XXXXXXX X. XXXXX
---------------------------------
Name: XXXXXXX X. XXXXX
---------------------------------
Title: CEO & PRESIDENT
---------------------------------
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EXHIBIT "A"
FCAM EQUIPMENT
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ANNEX 1
FCAM Equipment Appraisal Procedure
1.- FCAM and IMSALUM will approve an appraiser to do the appraisal OF THE
EQUIPMENT TO BE CONTRIBUTED TO THE COMPANY BY FCAM. Both Parties coincide to use
X. XXXXX as the appointed appraiser.
2.- FCAM will send the Equipment to IMSALUM, which will unload it for appraisal
by the approved firm. This appraisal cost will be paid by FIMSAM.
3.- FCAM retains ownership of the Equipment until the closing of this Agreement.
4.- All freight and export/import costs shall be covered by FCAM; the equivalent
to this cost shall be part of the $450,000.00 U.S. mentioned in Paragraph (C)
of the Recitals of this Agreement.
5.- IF A PARTY DOES NOT AGREE WITH THE APPRAISAL, BY WRITTEN MEANS SHOULD NOTIFY
THE OTHER PARTY WITHIN THE NEXT FIVE BUSINESS DAYS OF THE DELIVERY OF THE
RESULTS OF THE SAID APPRAISAL.
6.- The contesting Party will suggest and finance a second appraiser, in such
case, both Parties must approve this new appraiser.
7.- The final appraisal results WILL BE BINDING FOR BOTH PARTIES
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FIMSAM
FIMSAM'S INITIAL BOARD AND PERSONNEL
From FCAM, for the first year, the directors will be Xxxxxxx Xxxxx and Xxxxxxx
Xxxxxxxxxx.
From IMSALUM half the Directors will be Xxxxxx Xxxxx, Xxxxxxx Xxxxxxx and
Xxxxxxx Xxxxxxxx.
The Chairman for the First Term will be Xxxxxxx Xxxxx.
The Examiner will be Xxxxx Xxxxxx.
The initial President for the First Term will be Xxxxxxx Xxxxxxxxxx.
The General Manager will be Xxxxx Xxxxxxxxxx.
We agree to the above statements.
/s/ XXXXXX XXXXX /s/ XXXXXXX XXXXX
----------------------------- ------------------------------------
Xxxxxx Xxxxx Xxxxxxx Xxxxx
IMSALUM Director FCAM Director
