AMENDMENT NO. 1 TO THE SHAREHOLDERS' AGREEMENT
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THIS AMENDMENT TO THE SHAREHOLDERS' AGREEMENT (this "Amendment"), dated as of
February 8, 2005, hereby amends the Shareholders' Agreement, dated as of
September 4, 2000 (the "Shareholders' Agreement"), by and among DANONE ARGENTINA
S.A. (resulting from the merger of Xxxxxx X.X. and Danone S.A.), a company
organized and existing under the laws of Argentina, domiciled at Xxxxxx 000,
00xx Xxxxx, Xxxxxx Xxxxx, Xxxxxxxxx, represented by its President, Xx. Xxxxxxxx
X. Xxxxxxxxx ("DANONE"); XXXXXXXXXX HNOS. S.A., a company organized and existing
under the laws of Argetina, domiciled at Xxxxxxxxxxx Xxxxxxx 000, 0xx Xxxxx,
Xxxxxx Xxxxx, Xxxxxxxxx, represented by its President, Xx. Xxxxxxx Xxxxxxxxxx
("MASTELLONE", and together with DANONE the "Shareholders" or the "Parties" and
each a "Shareholder" or "Party"); and LOGISTICA LA SERENISIMA S.A., a company
organized and existing under the laws of Argentina, domiciled at Xxxxxx 000,
00xx Xxxxx , Xxxxxx Xxxxx, Xxxxxxxxx, represented by its Presidente, Xx.
Xxxxxxxx X.
Xxxxxxxxx (the "Company");
WITNESSETH
WHEREAS, on October 15, 2002 Danone S.A. was merged with Xxxxxx X.X. resulting
in the company known as Danone Argentina S.A., therefore, DANONE is the rightful
and legal successor and assignee of Xxxxxx X.X. and Danone S.A. under the
Shareholders' Agreement and this Amendment;
WHEREAS, on the date hereof, Xx. Xxxxxxx Xxxxxxxxxx, Xx. Xxxxxxxx X. Xxxxxxxxxx,
Xxxx Xxxxxxxxxx (jointly referred to as the "Family"), Dallpoint Investment LLC.
("Dallpoint" and together with the Family, the "Sellers") and DANONE executed a
Stock Purchase Agreement ("SPA") under which the Sellers transferred 44% of
their shareholding in the Company to DANONE;
WHEREAS, on the date hereof, the Sellers also transferred their remaining 5%
shareholding in the Company to XXXXXXXXXX; therefore, XXXXXXXXXX is the rightful
and legal successor and assignee of the Sellers under the Shareholders'
Agreement and this Amendment, and such assignment is hereby accepted by DANONE;
and
WHEREAS, the Parties wish to amend the Shareholders' Agreement to reflect the
changes of rights and obligations under the Shareholders' Agreement deriving
from the transfer of shares of the Company from the Sellers to XXXXXXXXXX and
DANONE, and to ratify XXXXXXXXXX and DANONE's assumption of obligations
hereunder in their capacity as rightful and legal successors of Group AB and
Group CD, respectively, under the Shareholders' Agreement;
NOW, THEREFORE, the undersigned Parties hereby agree as follows:
Section 1
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1.1. Capitalized terms used but not defined herein shall have the respective
meanings ascribed to them in the Shareholders' Agreement (unless
otherwise indicated herein).
1.2. XXXXXXXXXX hereby assumes its obligations under the Shareholders'
Agreement as successor of Group AB. Any reference to Group AB, PM, VM,
JM and DALLPOINT in the Shareholders' Agreement shall be construed as
referring exclusively to XXXXXXXXXX.
1.3. DANONE hereby assumes its obligations under the Shareholders' Agreement
as successor of Group CD. Any reference to Group CD, XXXXXX and DANONE
in the Shareholders' Agreement shall be construed as referring
exclusively to DANONE.
Section 2
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2.1. Class A and B shares of the Company transferred by the Sellers to
DANONE pursuant to the SPA have been converted into Class C and D
shares respectively. Section 1.4. of the Shareholders' Agreement shall
be deleted in its entirety and replaced with the following:
"1.4. ISSUANCE OF CAPITAL STOCK. Subject to the foregoing, the
Shareholders agree as follows:
(a)DANONE and XXXXXXXXXX agree that they shall own, directly or
indirectly, through affiliated companies which shall abide by this
Agreement, 95% (ninety-five percent) and 5% (five percent),
respectively, of the capital stock of the Company;
(b)The capital stock of the Company shall be represented exclusively
by ordinary, nominative, non-endorsable shares of $1 nominal value
each, with 1 (one) vote per share in the case of Class A and Class
C Shares, and with 5 (five) votes per share in the case of Class B
and Class D Shares. The Shares shall be distributed among the
Shareholders as follows:
Shareholder Shares Owned
XXXXXXXXXX 1,837,950 Class A Shares
1,358,127 Class B Shares
DANONE 34,921,085 Class C Shares
25,804,406 Class D Shares
(c)any capital stock increase of the Company shall be decided and approved
by a Shareholders' Meeting of the Company with the majorities provided
in Section 2.9. hereby and shall be subscribed and paid in on a
pro-rata basis by the Shareholders, unless one of the Shareholders
decides not to exercise its preemptive rights. All new shares of
capital stock shall have the same rights as existing Class A Shares,
Class B Shares, Class C Shares and Class D Shares (collectively
referred to as the "Shares")."
2.2. Section 2.9. of the Shareholders' Agreement shall be deleted in its
entirety and replaced with the following:
"2.9. SHAREHOLDERS' MEETINGS. The decisions to be adopted by the
ordinary and extraordinary Shareholders' meetings of the Company shall
be governed by the provisions of the ACL. Notwithstanding the
foregoing, a special majority of 97% (ninety-seven percent) of the
outstanding shares and votes shall be required in order to approve any
increase of the capital stock of the Company, amendment of the by-laws
of the Company, spin-off, merger, winding-up, liquidation,
transformation, capital reduction and repayment, redemption,
reimbursement and repayment of shares, or limitation or suspension of
preferred rights and the extraordinary adjustments which may affect the
net worth of the Company"
2.3. New Sections 4.4 and 4.5. shall be added to the Shareholders' Agreement
as follows:
"4.4. EARLY TERMINATION OF THE SERVICES OFFER BY XXXXXXXXXX. The
Parties agree that the Services Agreement currently in force with
XXXXXXXXXX, Xxxxxxxxxx San Xxxx S.A. and Frigorifico Rhydans S.A.
("XXXXXXXXXX Group") shall be replaced, as from the date of XXXXXXXXXX
Group's acceptance thereof, by the terms and conditions of a new
services offer pursuant to the form attached hereto (without exhibits)
as Schedule I (the new services offer, once accepted by XXXXXXXXXX
Group, is hereinafter defined as the "Offer"). As from the date of its
acceptance by XXXXXXXXXX Group, all references to the Services
Agreement in this Agreement shall be construed as referring to the
Offer.
The Offer shall set forth an indemnification of US$ 50,000,000 (the
"Indemnification") to be paid to LOGISTICA and DANONE in the event of
early termination of the Offer by XXXXXXXXXX, other than as a
consequence of LOGISTICA's breach thereof as provided for under section
13.2. therein. It is further clarified, that the obligations of
XXXXXXXXXX under the Offer shall also be applicable to third parties
acquiring XXXXXXXXXX'x Ongoing Concern (as such term is defined
hereinafter).
XXXXXXXXXX'x shareholders and XXXXXXXXXX shall inform, as the case may
be, any potential acquirer (the "Acquirers") of: (a) their shares in
XXXXXXXXXX; and (b) any part or the whole business of the XXXXXXXXXX
Group, whether by means of the acquisition of shares or of assets (the
"Ongoing Concern") (any of the foregoing transactions hereafter called
the "Acquisition") about the terms and conditions of the Offer. Such
Acquirers, before executing the Acquisition, shall sign an adherence
agreement by which they agree to be bound by the provisions of the
Offer concerning the distribution of those Products manufactured either
by (i) the relevant company which shares they are acquiring; and/or
(ii) the Ongoing Concern thereby acquired; and which are, at the time
of the Acquisition, distributed by LOGISTICA. In the case of the
Acquisition of the Ongoing Concern, the adherence agreement will state
that the amount of the Indemnification, should it become payable
according to the terms of the Offer, will be apportioned between the
Acquirers and XXXXXXXXXX on the basis of the respective distribution
costs of the Products transferred with the Ongoing Concern object of
the Acquisition, and those retained by XXXXXXXXXX.
The failure to achieve the execution of the adherence agreement by the
Acquirer shall make XXXXXXXXXX or XXXXXXXXXX'x shareholders,
respectively, jointly and severally liable with the Acquirer (in the
event of the Acquisition of Ongoing concern) or with XXXXXXXXXX (in the
event of Acquisition of the shares of XXXXXXXXXX),
for the payment of the Indemnification in the event of early
termination of the Offer by MHSA, the Acquirer or any succeeding
entities, as the case may be.
It is further clarified that to the extent that such Acquirers, before
execution of the Acquisition, sign the adherence agreement described
above, neither XXXXXXXXXX nor XXXXXXXXXX'x shareholders, as the case
may be, shall be liable for the new acquirers' breach of its
obligations under the Offer.
Notwithstanding the provisions of the preceding paragraphs, XXXXXXXXXX
shall be able to freely transfer, without responsibility or payment of
any kind of indemnification, its ongoing concern with respect to
mayonnaise, and/or with respect to any cold-cuts (chacinados) actually
produced and/or commercialized or to be produced and/or commercialized
in the future by RYDHANS; and the acquirer shall not be bound by the
terms of this Offer or by any kind of relationship with LOGISTICA.
The Parties agree that the Indemnification accurately reflects any
damage that may be suffered by LOGISTICA and/or DANONE by the early
termination of the Offer by XXXXXXXXXX. It is further agreed that the
Indemnification paid to LOGISTICA may either be distributed among its
shareholders as dividends or reinvested in LOGISTICA. Such decision
shall solely be adopted by DANONE. XXXXXXXXXX hereby waives its right
to collect dividends from such amount. This obligation shall be
enforceable on any successor or assignor thereto. For clarification
purposes it is set forth that XXXXXXXXXX, as a shareholder of
LOGISTICA, shall have no valid claim over this Indemnification.
4.5. FULL INDEMNIFICATION. Notwithstanding DANONE's right to obtain
injunctive relief to enjoin or restrain any breach of this ARTICLE IV,
in the event XXXXXXXXXX'x violation of the non-competition provision
triggers the payment of the indemnification provided in section 4.3.
herein, and such amount becomes payable simultaneously with the
Indemnification contemplated in the Offer, the Parties agree that the
aggregate amount of monetary damages for both breaches shall amount to
a maximum amount of US$ 50,000,000 (fifty million US Dollars) instead
of US$ 100,000,000 (one hundred million US Dollars)."
2.4. XXXXXXXXXX hereby irrevocably waives any remaining right it may have
had in connection with the put option set forth in Section 5.2. of the
Shareholders' Agreement. As a consequence thereof, Sections 5.1., 5.2.
and the first paragraph of Section 5.3. of the Shareholders' Agreement
shall be deleted in its entirety and replaced by the following:
"5.1. DANONE CALL OPTION. Class A Shares and Class B Shares shall not
be transferred unless the provisions of this Agreement and of the
By-laws of the Company are duly complied with by XXXXXXXXXX.
Nevertheless, in the event XXXXXXXXXX terminates the Offer, other than
as a consequence of LOGISTICA's breach of the terms of the Offer as
provided for under section 13.2. therein, DANONE shall have a call
option right to purchase from XXXXXXXXXX up to 5% (five percent) of the
outstanding capital stock and voting rights of the Company, and
XXXXXXXXXX shall
be obliged to sell the necessary number of Shares to such extent, at
the aggregate price of US$ 1 (one US Dollar).
The transfer of the Shares shall then take place within a 30 (thirty)
day period as from receipt by XXXXXXXXXX of DANONE's call option
notice. Payment of the price of the Shares purchased by DANONE thereby
shall be made at the closing of the call option.
5.2. XXXXXXXXXX CALL OPTION. During 5 (five) years following full
repayment of the CGD Note, XXXXXXXXXX shall have a call option right
over 44% of the outstanding capital stock and voting rights of the
Company and DANONE shall be obliged to sell the necessary number of
shares to such extent, at the price of US$ 18,500,000 (eighteen million
five hundred US Dollars) plus an annual financial charge of 6-month
LIBOR plus 1% p.a. compounded annually as from the date hereof. For the
purpose of this Agreement, "CGD Note" shall mean the fixed rate note
issued by XXXXXXXXXX and delivered to DANONE at the date hereof in
exchange of the Floating Rate Note issued by XXXXXXXXXX on October 22,
2004 pursuant to a Loan Agreement and held by DANONE until the date
hereof.
The exercise of the Call Option shall be subject to the following
conditions:
a) XXXXXXXXXX shall have not suffered a Change of Control -as such
term is defined under section 1.01. of the Amended and Restated
Loan Agreement executed between XXXXXXXXXX, Compagnie Gervais
Danone, Leitesol Industria e Comercio S.A., Xxxxxxxxxx San Xxxx
S.A. and Promas S.A., on February 8, 2005 (the "Loan Agreement");
b) The Distribution Agreement between XXXXXXXXXX and the Company shall
not have been terminated by XXXXXXXXXX;
c) XXXXXXXXXX shall have repaid in full the CGD Note
d) Neither XXXXXXXXXX, DALLPOINT nor the Xxxxxxxxxx Family shall have
breached any obligation set forth in any of the agreements in force
between any of them and the Company and/or Groupe Danone, or any
subsidiary or affiliate thereof;
e) XXXXXXXXXX shall not be in default under the restructuring of its
outstanding financial debt with its creditors, completed in the
terms set forth in the Offering Memorandum dated as of September
16, 2004;
f) DANONE shall not have exercised the call option set forth in
section 5.1. hereinabove."
5.3. FIRST REFUSAL RIGHT. In addition to the rights conferred on
Section 5.1., and in the event that XXXXXXXXXX had not exercised the
call option set forth in Section 5.2. herein, DANONE shall have a first
refusal right on 5% (five percent) of the Shares of the Company. If
XXXXXXXXXX has exercised the call option set forth in Section 5.2.
herein, DANONE's first refusal right shall extend to the 49%
(forty-nine percent) of the Shares of the Company held by XXXXXXXXXX.
2.5. Section 6.6. shall be entirely deleted and replaced by the following:
"6.6. NOTICES. All notices and other communications required or
permitted to be given hereunder shall be in writing and shall be
delivered by hand or sent by telex, cable, fax, postage prepaid or by
registered, certified or express mail, or reputable courier service,
and shall be deemed given when so delivered by hand, cable, or faxed,
or if mailed, when received, as follows:
if to DANONE, as follows:
Xxxxxx 000, 00xx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxxx
Attention: Mr. General Manager
Telefax: 00-00-0000-0000
With a copy to:
Marval, X'Xxxxxxx & Mairal
Av. Xxxxxxx X. Xxxx 000, 0xx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxxx
Attention: Xx. Xxxxxxxx X. Xxxxxxxxx
Telefax: 00-00-0000-0000
if to MASTELLONE, as follows:
Xxxxxxxxxxx Xxxxxxx 000, xxxx 0(0),
Xxxxxx Xxxxx, Xxxxxxxxx
Attention: Xx. Xxxxxxx Xxxxxxxxxx
Telefax: 4318-5010
With a copy to:
Cibils l Labougle I Ibanez
Xx. Xxxxxxxxxx 000, 0xx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxxx
Attention: Xxxxxxx Labougle / Xxxxxxx Xxxxxx
Telefax: 00-00-0000-0000
and
if to the Company, as follows:
Xxxxxx 000, 00xx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxxx
Attention: Managing Director
Telefax: 00-00-0000-0000"
2.6. Section 6.16. shall be amended as follows:
"SECTION 6.16. RIGHTS OF THIRD PARTIES. Except as otherwise expressly
provided in this Agreement, nothing in this Agreement is intended, or
shall be construed to confer upon
or give any person or entity other than the Parties to this Agreement
any rights or remedies under or by reason of this Agreement".
Section 3
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3.1. Any tax, included but not limited to stamp tax, applicable to this
Amendment and the transactions contemplated herein, shall be borne
entirely by the Sellers and XXXXXXXXXX.
3.2. Except as expressly amended by this Amendment, the Shareholders'
Agreement shall continue in full force and effect.
IN WITNESS HEREOF, the Parties have caused this Amendment to be duly executed in
three counterparts, one for DANONE, one for XXXXXXXXXX and one for the Company.
/s/ Xxxxxxxx X. Xxxxxxxxx
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Danone Argentina S.A.
By: Xxxxxxxx X. Xxxxxxxxx
Title: President
/s/ Xxxxxxx Xxxxxxxxxx
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Xxxxxxxxxx Hermanos S.A.
By: Xxxxxxx Xxxxxxxxxx
Title: President
/s/ Xxxxxxxx X. Xxxxxxxxx
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Logistica La Serenisima S.A.
By: Xxxxxxxx X. Xxxxxxxxx
Title: President
SCHEDULE I
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FORM OF SERVICES OFFER (WITHOUT EXHIBITS)
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