Exhibit (d)(9)
[Please note that the following is an English translation of a document written
in Spanish which is also attached as an exhibit to the Schedule TO. Although
Xxxxxxxxx believes the following English translation to be an accurate
translation of the original document written in Spanish, the following English
translation is qualified in its entirety by reference to the original document
written in Spanish.]
JOINT GUARANTEE BOND POSTED BY PRIMOR ALIMENTOS, C.A. (FORMERLY
ALPROVENCA, ALIMENTOS Y PRODUCTOS VENEZOLANOS, C.A.)
I, Xxxxxxx Xxxxxxx Xxxxxxx, born in Venezuela, domiciled in Caracas and holder
of the Identity Card No 6.818.047, in my capacity of Director of PRIMOR
ALIMENTOS, C.A. (formerly ALPROVENCA, Alimentos y Productos Venezolanos, C.A.),
a corporation incorporated and domiciled in the City of Caracas and registered
at the Fifth Commercial Registry of the Judicial Circumscription of the Capital
District and State of Miranda on September 23, 1998 under No. 42, Volume 251
A-th. (the "Guarantor" or "Primor Alimentos"), sufficiently empowered hereto as
by resolution of the Board of Directors of Xxxxxx Xxxxxxxxx of January 16, 2001,
hereby represent as follows:
ONE: Primor Inversiones, C.A., a corporation incorporated and domiciled in the
City of Caracas and registered at the Fifth Commercial Registry of the Judicial
Circumscription of the Capital District and State of Miranda on January 9, 2001
under No. 81, Volume 479 A-th. ("Primor Inversiones" or the "Purchaser") shall
commence (i) a public tender offer for the shares of MAVESA S.A. ("Mavesa" or
"Selling Corporation"), a corporation incorporated and domiciled in the City of
Caracas and initially registered at the Commercial Registry under the Court of
Original Jurisdiction in Commercial Matters of the Capital District on May 19,
1949 under No. 552, Volume 2-B and whose last statutory modification was
registered at the First Commercial Registry of the Judicial Circumscription of
the Capital District and State of Miranda on August 28, 2000, (the "Venezuela
Offer"), and (ii) a United States tender offer for American Depositary Shares
representing shares of Mavesa ("ADSs") in accordance with the U.S. Securities
laws and regulations (the "U.S. Offer") and, together with the Venezuela Offer
(the "Offers").
TWO: Pursuant to this document, the Guarantor and the Purchaser will be jointly
liable for up to five hundred and nine million six hundred and sixty-eight
thousand five hundred and sixty-nine US dollars (US$509,668,569), in order to
guarantee to all of the shareholders and ADS holders of Mavesa who validly
tendered into the Venezuela Offer and the U.S. Offer, respectively, as security
for the payment of the selling price of the shares according to the Venezuela
Offer and that of the ADSs, according to the U.S. Offer, respectively, under the
terms and conditions set forth in the Venezuela Offer Report and in the U.S.
Offer Report, respectively. Solely for the purpose of complying with provisions
of Section 95 of the Venezuela Central Bank Act, five hundred and nine million
six hundred and sixty-eight thousand five hundred and sixty-nine US dollars
(US$509,668,569) are equivalent to ___________ Bolivares Bs.________, at the
exchange rate of Bs._____ per US$.
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THREE: The Guarantor expressly waives the excussion rights and rights of
partition provided in the Venezuela Civil Code.
FOUR: For the purposes hereof, any notice sent to the Guarantor shall be deemed
duly given when submitted in writing at the following addresses: Cuarta
Transversal de los Cortijos de Xxxxxxx, Centro Empresarial Polar, Piso 1, Los
Cortijos de Xxxxxxx, Caracas, to the attention of Xxxxxxxxx Xxxxxxxx, General
Counsel.
FIVE: This Guarantee Bond is governed by the laws of the Bolivarian Republic of
Venezuela. Any dispute, claim, controversy and/or differences arising herefrom
shall be decided by final arbitration, in the City of Caracas, conducted in
Spanish, in accordance with the Regulations of the Arbitration Center of the
Commercial Chamber of Caracas in force on the execution date hereof (the
"Regulations") by three arbitrators appointed according to the Regulations. The
arbitration award shall be final and, except for the Recurso de Nulidad
provided for in Article 43 of the Commercial Arbitration Act, no additional
remedy shall be admitted against the award. By virtue of this arbitration
agreement, the parties hereof waive the right to claim before any judge.
Therefore, the submission to the arbitration procedure provided for herein shall
be exclusive of any ordinary jurisdiction. Moreover, the parties hereof waive
their rights to file a claim with any foreign court or arbitrators other than
the ones provided herein.
SIX: Once three (3) months have elapsed from the occurrence of an event from
which a claim secured by this Guarantee Bond may arise without beginning any
arbitration procedure having been commenced, all rights and claims against the
Guarantee Bond hereof shall expire.
Signed at Caracas, on the certification date.
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