EXHIBIT 10.1
SHAREHOLDERS AGREEMENT
executed among
ADVERTISING ANTWERPEN B.V.
CALLE XXXXX, X.X.
CANTABRO CATALANA DE INVERSIONES, S.A.
COMPANIA DE CARTERA E INVERSIONES, S.A.
DEYA, X.X.
XXXXX ADVERTISING, S.A.
INVERMARO X.X.
XXXXXXXX-XXXXXX FAMILLY
22 March 1999
SHAREHOLDERS AGREEMENT
AMONG:
DEYA, S.A., a limited liability company duly incorporated and legally existing
under the laws of Luxembourg, with registered office at 00-00 Xxxxxxxxx xx
Xxxxxx Xxxxx, X-0000 Xxxxxxxxxx, R.C 26285, registered with the Trade Register
in Luxembourg under number 26.285, Section B, with Tax Identification Number A-
J7500040, duly represented by Xx. Xxxxxxx Xxxxx Xxxxx, of Spanish nationality,
of legal age, and with Identification Number 2.011.846 in his capacity as
Administrator of the company specially empowered by virtue of the resolution
passed by the Board of Directors on January 19, 1999, legalised before the
Notary Public of Luxembourg Xx. Xxxx Xxxxxxxxx, on January 25, 1999. ("Deya").
ADVERTISING ANTWERPEN B.V., a "besloten vennootschap met beperkte
aansprakelijkheid" (private company with limited liability) duly incorporated
and legally existing under the laws of The Netherlands with corporate seat in
Amsterdam, The Netherlands, and registered office at World Trade Center, Tower
B, 17th floor, Strawinskylaan 1725, 1077 XX Arnsterdam, The Netherlands,
registered with the Trade Register in Amsterdam under number 33.250.361, duly
represented by Xx. Xxxxxxxx Xxxxx Castane, of Spanish nationality, of legal age,
and with passport number 00000000 by virtue of a power of attorney granted by
the Managing Director formalized before the Notary Public Xx. Xxxxxx Xxxxxx of
Amsterdam, The Netherlands, on January 26, 1999. ("Advertising Antwerpen").
CANTABRO CATALANA DE INVERSIONES, S.A., a limited liability company duly
incorporated and legally existing under the laws of Spain, with registered
office in Santander (Spain), Paseo xx Xxxxxx n/o/9, registered with the Trade
Register in Cantabria, volume 643, folio 97, page number S-8744, second
inscription, with Tax Identification Number A-08007478, duly represented by Xx.
Xxxxxxxxx Xxxxxxxx-Xxxxxxx Xxxxxxxxx, of Spanish nationality, of legal age, with
Identification Number 00.000.000X, by virtue of the power of attorney granted by
the Board of Directors on January 20, 1999 and formalized before the Notary
Public of Santander Mr. Xxxx Xxxxx Prada Xxxx on January 25, 1999, with number
193 of his protocol. ("Cantabro Catalana").
COMPANIA DE CARTERA E INVERSIONES, S.A., a limited liability company duly
incorporated and legally existing under the laws of Spain, with registered
office in Madrid (Spain), Xxxxx xx xx Xxxxxxxxxx 00, registered at the Trade
Register in Madrid volume 5129, 4279 of the third section, folio 24, page number
40669, with Tax Identification Number A-48027890, duly represented by Xx. Xxxxxx
Xxxxxx Claramun, of Spanish nationality, of legal age, and with Identification
Number 39000910-V, / Mr. Pastor Xxxxxxxx Lago, of Spanish nationality, of legal
age, and with Identification Number 14377641-L; by virtue of the power of
attorney granted by the Administrator (Administrador Solidario) and formalized
before the Notary Public of Bilbao Xx. Xxxx Xxxxx Xxxxxxx Xxxxx with number 294
of his protocol, on January 26, 1999 ("Compania de Cartera e Inversiones").
CALLE XXXXX, X.X., a limited liability company duly incorporated and legally
existing under the laws of Spain, with registered office in Madrid (Spain),
calle Xxxxxxx Xxxxxxx 10, 3/o/B,, registered with the Trade Register in Madrid,
volume 8,495, folio 8, page number M-136.882, with Tax Identification Number B-
60458163, duly represented by Xx. Xxxxxxxx Xxxxx Vila, of Spanish nationality,
of legal age, and with Identification Number 46219948-E, by virtue of the power
of attorney granted by the Administrator (Administrador Solidario), before the
Notary Public of Barcelona, Xx. Xxxxxx Xxxxxx Xxxx with number 1.228 of his
protocol, on March 18, 1999 ("Calle Xxxxx").
INVERMARO, S.L., a limited liability company duly incorporated and legally
existing under the laws of Spain, with registered office in Barcelona (Spain),
calle Doctor Xxxxxxx 17, registered with the Trade Register in Barcelona, volume
10,952, folio 99, page number B-11,967, third inscription, with Tax
Identification Number A-58846858, duly represented by Xx. Xxxx Xxxxxxxx-Xxxxxx
Xxxxx, of Spanish nationality, of legal age, and with Identification Number
37.604.987-X by virtue of the power of attorney granted by the Sole
Administrator (Administrador Unico) on April 22, 1997 and formalized before the
Notary Public of Barcelona Xx. Xxxxxx L6pez Xxxxxx with number 2,051 of his
protocol ("Invermaro").
Xx. XXXX XXXXXXXX-XXXXXX XXXXX, of Spanish nationality, of legal age and with
Identification Number 37.604.987-X, on his own behalf and name and duly
representing:
- Xxx. XXXXX XXXXX XXXXX XXXXXXX, of Spanish nationality, of legal age and with
Identification Number 37.749.687-V;
- Mrs. XXXXXXXX XXXXXXXX-XXXXXX XXXXX, of Spanish nationality, of legal age and
with Identification Number 46.133.906-T; and
- Mrs. XXXXXX XXXXXXXX-XXXXXX XXXXX, of Spanish nationality, of legal age and
with Identification Number 38.135.202-Y,
by virtue of a power of attorney granted in his favour by the above-mentioned
persons, formalized before the Notary Public of Barcelona Xx. Xxxxxx L6pez
Balina with number 361 of his protocol.
(together "Xxxxxxxx-Xxxxxx Family")
HAVAS ADVERTISING SA., a limited liability company duty incorporated and legally
existing under the laws of France, with registered office at 00, xxx xx
Xxxxxxxx, 00000 Xxxxxxxxx-Xxxxxx (Xxxxxx), registered with the Trade Register in
Nanterre under number B335480265, duly represented by Alain de Pouzilhac, of
French nationality, of legal age and with, passport number 753197031529, in his
capacity as President of the Board of Directors ("HA").
(The parties to this agreement as well as their successors and permitted
assignees are hereinafter collectively referred to as the "Shareholders").
WHEREAS
(A) The Shareholders are parties to a certain merger agreement dated 29
November 1998 amended by a letter-amendment dated 22 January 1999 and by a
supplemental and amendment agreement executed on the date hereof (the
"Merger Agreement"), pursuant to which the parties have agreed to combine
their Media Business (as defined in the Merger Agreement) into one entity
and jointly develop the combined entity;
(B) The Shareholders has selected INVERSIONES Y SERVICIOS PUBLICITARIOS, S.A.,
a Spanish company, duly incorporated and legally existing under the laws of
Spain ("New MP") as their joint venture vehicle and will, on the Merger
Date, transfer to New MP their respective Media Businesses pursuant to the
Merger Agreement;
(C) The share participation of the Shareholders in New MP shall be:
HA. 45,000%
Deya 22,000%
Advertising Antwerpen 16,775%
Compania de Cartera e Inversiones 11,000%
Cantabro Catalana de Inversiones 2,750%
Invermaro 2,475%
(D) The Shareholders wish to set forth in this Shareholders Agreement (the
"Agreement") the terms and conditions governing the management of New MP
and their respective shareholding in New MP.
NOW THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
Definitions:
------------
Terms are defined in the text of the Agreement where most appropriate. Terms
not otherwise defined herein shall have the meaning ascribed to them in the
Merger Agreement.
ARTICLE 1
---------
PURPOSE OF NEW MP
1.1 The purpose of New MP, as shall be provided in New MP's by-laws (the "By-
laws") attached hereto as Exhibit 1, shall be (a) to conduct the Media
Business directly or through one or more subsidiaries, and (b) to hold
interests in companies or entities engaging in Media Business; New MP shall
not engage, whether directly or indirectly, in any other activity.
1.2 The Media Business shall be conducted in accordance with annual budgets for
operations and investments to be adopted by the Board in respect of each
financial year at least one month before the commencement of the relevant
financial year.
ARTICLE 2
---------
ORGANIZATION AND MANAGEMENT
OF NEW MP
2.1 Board of Directors
(a) In accordance with the New MP by-laws, the Board of Directors of New MP to
be appointed at the Merger Date shall be composed of 23 members.
(b) On or prior to the Merger Date, the Shareholders shall irrevocably
designate the initial 23 members of the Board to be appointed at the Merger
Date, as well as deputy Directors. As the shareholder holding the greatest
percentage of shares of New MP, HA shall have the right to appoint, on the
Merger Date, 12 of the 23 Board members. The 11 remaining Board members
shall be appointed by the other New MP shareholders prorata to their
respective participation in the sharecapital of New MP. The parties agree
to provide stability to the Board appointed on the Merger Date for a 8 year
term, through the mechanisms provided below.
(c) The Directors shall be appointed for an initial term of five years which
shall expire on the date of the general meeting of the shareholders of New
MP during which the New MP financial statements for the fiscal year ended
on 31 December 2003 are approved. Without prejudice to the provisions of
Section 2.1 (d) hereunder, the Shareholders shall cause the same initially
appointed Directors (or their relevant Deputies, as the case may be) to be
appointed for three additional years, i.e. until the date of the general
meeting of the shareholders of New MP during which the New MP financial
statements for the fiscal year ended on 31 December 2006 shall be approved.
(d) On or prior to the Merger Date, each Director shall designate up to 4
Deputy Directors chosen on a list of 23 Deputy Directors. In the event
that any Director resigns or is no longer able to hold its position on the
Board (the "Departing Director"), the Corresponding Deputy Director, as
defined hereunder, shall be appointed as Director in replacement of the
Departing Director for the remainder of the term for which such Departing
Director was appointed and the shareholders shall take all appropriate
actions with respect to this appointment (including, if valid under the Law
of incorporation of New MP, causing such Deputy Director to be appointed by
the Board by way of cooptation). The New MP shareholders shall cause (i)
the newly appointed Director to designate its own Deputy Directors (up to
4) and (ii), if such Deputy Director is appointed by way of cooptation,
such appointment to be ratified at the next general shareholders meeting
and be promptly thereafter registered accordingly in the public registry.
(e) The "Corresponding Deputy Director" shall mean the first available
Deputy Director on the list of Deputy Directors, designated by the relevant
Director pursuant to clauses (c) or (d) above.
(f) If for any reason a Deputy Director is not willing or able to be appointed
as Director, the Shareholders shall cause the Director which initially
designated such Deputy Director to designate a replacement Deputy Director.
(g) If any one of the Shareholders holds more that fifty percent of New MP's
capital stock, such Shareholders shall have the right to cause a
Shareholders' meeting to be convened in order to dismiss the existing Board
of Directors and appoint a new Board, pursuant to the quorum and voting
majority provisions in the by-laws.
(h) The Board of Directors shall be validly convened (i) by the Executive
President or the CEO or (ii) upon a request to convene a Board meeting
addressed by at least one third of the Directors to the Executive President
or the CEO, in which case the Executive President or the CEO (as the case
may be) shall be obliged to convene a meeting of the Board within ten days
of his receipt of the request.
2.2 Decisions of the Board of Directors
(a) Without prejudice to the provisions of Section 2.2(b) below, the decisions
of the Board of Directors, including appointment of the Executive President
and of the Chief Executive Officer (the "CEO") and their remuneration, as
well as the approval of the annual budgets for operations and investments,
shall be taken by a simple majority of those members present or
represented.
(b) The following actions and decisions (the "Major Decisions") shall require
the prior authorization of the Board of Directors of New MP, and no
resolution of the Board of Directors relating to such Major Decisions shall
be valid unless such resolution is adopted by a two thirds (2/3) majority
of the Directors present or represented:
(i) Acquisition of shares, partnership interests or any kind of equity
instruments in an amount greater than one million United States
dollars ($1,000,000) per transaction;
(ii) Direct or indirect sale of a business generating a gross yearly
income greater than one million United States dollars ($1,000,000);
(iii) Incorporation or liquidation of any company or other juridical
person;
(iv) Entering into any joint venture, partnership or any other similar
agreement;
(v) Entering into any bank loan or debt restructuring agreement in an
amount greater than double the net worth of the relevant company
with the exception of any financing arrangement or loan necessary
(a) to implement the purchase of the United States and Mexico
contributions pursuant to Section 1.3.1 of the Merger Agreement,
and (b) to exercise New MP's rights pursuant to Sections 1.3.2 and
1.3.3 of the Merger Agreement;
(vi) Granting pledges, guarantees or similar undertakings to third
parties;
(vii) Any investment not provided for in the annual budgets for
operations and investments for amounts greater than one million
United States dollars ($1,000,000);
(viii) Any transaction with the Shareholders, managers or any entity (or
entities) which Controls (as defined below), is Controlled by or is
under the common Control with, a Shareholder (a "Related Party or
Parties") except those executed in the ordinary course of business
or in respect of the compensation of the member of the management
(including particularly of the Executive President and of the CEO);
for the purpose of this Agreement, "Control" shall mean the fact of
owning, directly or indirectly, more than 50% of the shares or
voting rights of any entity or having any contractual right to
appoint the management of an entity pursuant to such entity's by-
laws, a shareholders agreement or any equivalent document;
(ix) Any proposal to the shareholders to amend the By-laws of New MP.
(c) The Parties shall cause the restrictions provided for above in connection
with the Major Decisions to be promptly and consistently followed and
complied with by any and all of New MP's subsidiaries.
(d) If, in the reasonable opinion of the Executive President or of the CEO of
new MP, as the case may be, the circumstances so require, the Executive
President or the CEO may take a Major Decision after having received
written authorization from three Directors to be appointed by the Board of
Directors with a two thirds majority of its members. If any one of the
Directors thus appointed contests the fact that the circumstances justify
the recourse by the Executive President or by the CEO to the emergency
procedure provided for herein in order to take a Major Decision, such Major
Decision shall require prior Board approval pursuant to Section 2.2(b)
above. Any Major Decision taken pursuant to this Section shall be
immediately valid and enforceable and shall be ratified by the Board of
Directors at its next meeting.
2.3 Powers of the Executive President and the CEO
---------------------------------------------
The Executive President and the CEO shall have all powers to manage,
represent and bind New MP vis-a-vis third parties except in connection with
the taking of Major Decisions, where the: Executive President and the CEO
may only act with the appropriate Board authorization as provided for under
Section 2.2 (b) or (d) of this Agreement.
2.4 Modification of the By-laws
---------------------------
In accordance with the By-laws, any modification thereto shall require a
two thirds (2/3) majority vote by the Shareholders;
ARTICLE 3
---------
DEADLOCK AND DEMERGER
3.1 Deadlock
--------
3.1.1 Deadlock Triggering Events
A deadlock situation (hereinafter "Deadlock") shall be deemed to have
occurred in any of the following cases (the "Deadlock Triggering
Events"):
(a) The confirmation, pursuant to Section 3.1.2 hereunder, of the
existence of a Material Disagreement (as defined below) between the
Shareholders;
(b) The receipt by all non-HA Shareholders and by New MP of a written
notice from HA informing them of its inability, for any reason not
attributable to HA, to continue consolidating New MP's accounts with
its own accounts under a global consolidation regime pursuant to
French accounting provisions then in force; however, any change to
the French legal regime resulting in applicable rules which, had
they existed on the Merger Date, would not have allowed HA to
consolidate New MP's accounts with its own accounts under a global
consolidation regime, will not in itself constitute a Deadlock
Triggering Event; however, the parties shall, in such event, provide
their best efforts to find an alternative to allow HA to continue to
consolidate New MP's accounts with its own accounts under a global
consolidation regime.
(c) The exercise by HA of its right, under the terms and conditions
stipulated in Section 1.3.3 of the Merger Agreement, to call a
Demerger, as defined hereunder.
(d) The occurrence of a Change of Control of HA as defined in the Put
Agreement.
Without prejudice to Section 3.1.2(c) below, when a Deadlock occurs, the
Demerger procedures provided in Section 3.2 below shall promptly ensue.
3.1.2 Material Disagreement
(a) A disagreement between the Shareholders regarding any issue
concerning the conduct of affairs or strategy of New MP will be
deemed material ("Material Disagreement") when it could reasonably
result in substantial damage to the interests of any one of the
Shareholders. The existence of a Material Disagreement may be called
by one or more Shareholders, representing more than twenty five (25)
percent of New MP's share capital, by delivering to the remaining
Shareholders and New MP a memorandum in English (the "Disagreement
Memorandum"), describing the alleged Material Disagreement, setting
out their position on the issue in contention, their reasons for
taking such position and the damages to their interests which could
result if their recommended position is not adopted.
(b) If within ninety (90) days of the receipt by New MP of the
Disagreement Memorandum the existence of a Material Disagreement is
confirmed, either (i) by a written acknowledgement signed by
Shareholders holding shares representing a simple majority of the
remaining Company shares held by the Shareholders, or (ii) by the
Board of Directors refusing in fact to follow the
course of action suggested in the Disagreement Memorandum, a
Deadlock shall be deemed to have occurred.
(c) When a Deadlock has occurred as a result of a Material Disagreement,
any of the Shareholders may request the appointment of a conciliator
in accordance with the UNCITRAL Conciliation Rules. The Shareholders
agree to participate in good faith in the conciliation proceedings
for a minimum of 45 days from the appointment of the conciliator. If
within such 45 day period the Shareholders are unable to sign a
memorandum settling the Material Disagreement, the Demerger
procedures provided in Section 3.2 below shall promptly ensue.
3.2 Demerger
--------
3.2.1 Either
(i) the Shareholder or Shareholders having sent the Disagreement
Memorandum pursuant to Section 3.1.2 above, or
(ii) HA when one of the Deadlock Triggering Events referred to in
Sections 3.1.1(b) or 3.1.1(c) has occurred, or
(iii) the non HA Shareholders by unanimous decision, within six months
of the occurrence of a Change of Control of HA,
may cause New MP's business, assets and liabilities, to be allocated
among the Shareholders (the "Demerger") as provided for hereunder, by
written notice (the "Notice of Demerger") served to the remaining
Shareholders and New MP within 60 days of the occurrence of the Deadlock
Triggering Event (except a Change of Control of HA), or within six months
of the occurrence of a Change of Control of HA. Except in the event that
the non HA Shareholders exercise their Put Option pursuant to the Put
Agreement, the Demerger will be implemented through the following
procedure:
(a) New MP's and the Subsidiaries' business and assets shall be divided
into two packages according to the following guidelines:
(i) A package including the Media Business and all related assets
and liabilities in Spain, Portugal, Italy and Latin America, as
well as all rights over and interests in the commercial names,
trademarks and all other intellectual property owned directly
or indirectly by the MP Group prior to the Merger Date, shall
be allocated to the Non HA Shareholders jointly via one or
several entities.
(ii) A package including the Media Business and all related assets
and liabilities in France, the United Kingdom, the United
States of America and the Netherlands as well as all rights
over and interests in the commercial names, trademarks and all
other intellectual property owned directly or indirectly by the
HA Group prior to the Merger Date, shall be allocated to HA.
(b) The Shareholders shall negotiate in good faith the distribution of
any Media Business and and related assets and liabilities in a
country or countries not included under Sections 3.2.1(a)(i) and
3.2.1(a)(ii) above. If the Shareholders are unable to reach an
agreement, an independent investment bank (the "Independent Bank"),
appointed as provided in Section 3.2.1(c) hereunder, shall
group all Media Business and related assets and liabilities not
allocated pursuant to Sections 3.2.1(a)(i) and 3.2.1(a)(ii) in two
allocation packages (the "Allocation Packages"), each an independent
business unit of an equivalent market value, taking into account the
relationship and coherence of such non-allocated Media Business with
the general geographical areas of the Media Business distributed
pursuant to Section 3.2.1(a) above. The Independent Bank shall value
the Allocation Packages on the basis of the standard method
generally applied in the media industry and, if there is a
difference between the valuation of such Allocation Packages, cash
adjustments between them will be made accordingly. The Independent
Bank will deliver to the Shareholders and the Company a mission
report detailing the distribution of the assets into the Allocation
Packages, their respective valuation and, as the case may be, the
amount of the cash adjustments. Within 15 days of the reception by
New MP of the mission report, New MP will summon the party not
requesting the Demerger to exercise in writing its choice of one of
the Allocation Packages.
(c) When the services of an Independent Bank shall be required pursuant
to Section 3.2.1(b) above, the Shareholders shall choose and appoint
one of the following: Xxxxxx Xxxxxxx, Credit Suisse First Boston,
Salomon Brothers, Merrill Lynch. If the Shareholders cannot agree on
one of the four banks or if the selected bank is not willing to act,
they will proceed to choose one of the four by drawing lots. The
Independent Bank shall undertake to provide the services required of
it by this Agreement as soon as possible and in any event in a
period no longer than one hundred and twenty days from the date of
acceptance of the appointment by the Independent Bank. The cost of
the Independent Bank shall be borne, in the case of Section
3.2.1(b), by those Shareholders requesting the Demerger.
3.2.2 The Demerger shall not be implemented if a put option is exercised by the
Non HA Shareholders pursuant to the Put Agreement executed on the date
hereof.
ARTICLE 4
---------
TRANSFERS OF SHARES
4.1 General application
-------------------
All Transfers of Company shares (as defined in Section 4.2 below) are
subject to the provisions of this Article 4, except, without prejudice to
the provisions of Section 4.2(d) below and subject to prior notification of
the proposed Transfer to all Shareholders, for (i) the Transfer of Company
shares to one or more Shareholders, and (ii) the Transfer of Company shares
to a Related Party subject to the execution by such Related Party of all
necessary documentation to be a party both to this Agreement and to the Put
Agreement.
All notices relating to any Transfer of Company Shares required by the
provisions of this Article 4 shall be copied to the Secretary of the Board
of New MP who is hereby appointed as the coordinator of this Agreement in
respect of any Transfer of Company shares.
4.2 Preemptive rights
-----------------
Each Shareholder undertakes that, if at any time it has received a hona
fide offer to sell or transfer (by any means including, without
limitations, by way of loan, contribution in kind, merger, etc.)
(collectively a "Transfer") part or all of its shares in New MP (the
"Offered Shares"), to a third party, and such Shareholder (the "Selling
Party") desires to accept such offer, then:
(a) the Selling Party shall first notify the Board of Directors and all
remaining Shareholders (`the "Continuing Parties") in writing, setting
forth in such notice the identity of the proposed purchaser (the
"Transferee"), the proposed purchase price and the other terms and
conditions of the proposed Transfer. The Board of Directors shall
notify all the Continuing Parties in writing, setting forth in such
notice the identity of the Transferee, the proposed purchase price and
the other terms and conditions of the proposed Transfer within 5
business days of the receipt by the Board of the notification from the
Selling Party (the "Transfer Notice").
(b) Without prejudice to the provisions of Section 4.3 below, each of the
Continuing Parties shall have the right within 45 days after receipt
of the Transfer Notice (the "Option Period"), to inform the Selling
Party through the Board of Directors by notice in writing (a "Purchase
Notice") that it wishes to purchase, at the same price and under the
same terms and conditions as those set forth in the Transfer Notice,
(i) the proportion of the Offered Shares which New MP shares held by
that Continuing Party bear to all Company shares held by all the
Continuing Parties, and (ii) to the extent that any other Continuing
Party does not exercise in whole its right under Section 4.2(b)(i),
the proportion of the remaining Offered Shares which New MP shares
held by the relevant Continuing Party bear to all Company shares held
by the Continuing Parties who wish to exercise the additional right
provided in this Section 4.2(b)(ii).
(c) If the Continuing Parties so serve Purchase Notices in respect of all,
but no less than all, of the Offered Shares, the purchase of the
Offered Shares by the Continuing Parties having exercised their
preemptive rights pursuant to Section 4.2(b) above shall be completed
no later than 45 days (the "Purchase Period") after the expiration of
the Option Period; if Purchase Notices are not served in respect of
all the Offered Shares within the Option Period, or if the purchase of
all the Offered Shares by the Continuing Parties having exercised
their preemptive rights is not completed within the Purchase Period,
the Selling Party shall, within 60 days (the "Transfer Period") after
the expiration of the relevant Option Period or Purchase Period, be
entitled to Transfer, subject to the provisions of Section 4.4 below,
all the Offered Shares to the proposed Transferee on the terms
specified in the Transfer Notice. If the Transfer of the Offered
Shares to the Transferee is not completed during the Transfer Period,
any Transfer of Company shares covered by the initial Transfer Notice
will thereafter be subject to all provisions of this Section 4.2.
4.3 Limitation
Each and all non-HA Shareholders hereby undertake (i) not to exercise any
preemptive right, (ii) not to purchase from any Shareholder Company
shares, and (iii) not to otherwise acquire additional shares or voting
rights in New MP, if and to the extent that such transaction or
transactions would result in the relevant non-HA Shareholder (i.e. not a
third party) holding more than 44.9% of the total issued and outstanding
Company share capital and/or voting rights. Should any proposed Transfer
of Company shares result in any one of the non HA Shareholders owning more
than 44.9% of the total issued and outstanding Company share capital
and/or voting rights of New MP, such Company shares may be transferred to
such non-HA Shareholder only to the extent that the aggregate New MP
shares and/or voting rights held by such non-HA Shareholder will not
exceed 44.9% after such Transfer; the balance of New MP shares proposed
which may not be Transferred to such non-HA Shareholder pursuant to this
clause may be Transferred to a third party without the other Shareholders
having any preemption rights thereon, provided such proposed Transfer is
duly notified to the Shareholders with all information contained in a
Transfer Notice 30 days prior to the proposed Transfer, provided such
third party is not a Competitor (as defined below) and provided such third
party becomes a party to this Agreement pursuant to Section 4.3 below
prior to any Transfer of New MP shares.
4.4 Dates of receipt of notification
If there is a difference between the dates of receipt by the different
Shareholders of the various notices provided for in this Article 4, the
relevant periods shall be counted for all Shareholders alike starting from
the date upon which the relevant notice was received by New MP.
4.5 Accession to this Agreement
Subject to Section 13.3 below, it shall be a condition precedent to any
Transfer of New MP shares pursuant to this Article 4 by a Shareholder to
any third party who is not a party to this Agreement, or any allocation by
New MP of new shares to a third party resulting from a capital increase,
that such third party executes all necessary documentation to be a party
to this Agreement and be bound by, and benefit from, the terms hereof
prior to any such Transfer or allocation.
4.6 Transfer of New MP shares to Competitors
4.6.1 If, upon receipt by HA of a Transfer Notice, it appears (i) that the
proposed Transferee is a person or entity which, directly or indirectly,
conducts any media and/or advertising activity when such media and/or
advertising activity represents more than 25% of the total gross income of
the relevant Transferee or when the proposed transferee is (a) one of the
top 20 world wide advertising agencies or one of the top 10 world wide
media agencies, according to the yearly ranking published by Advertising
Age or if no such publication or ranking is made therein, by any ranking
published by a similar publication, or (b) is controlling or controlled by
or is under common control with one
of the top 20 world wide advertising agencies or one of the top 10 media
agencies according to the ranking referred to above ("Control" has the
meaning defined in Section 2.2(viii) above) (a "Competitor), and (ii) that
the completion of the proposed Transfer would allow the proposed
Transferee to hold more than 50% of the shares or voting rights of New MP,
HA shall, within 30 days of its receipt of the Transfer Notice, inform the
Selling Party and the Continuing Parties by notice in writing that the
proposed Transferee is a Competitor and that HA exercises either, at HA's
choice:
(a) its preemptive rights pursuant to Section 4.2 above, or
(b) a preemptive right on such Offered Shares limited to the percentage
of additional New MP shares needed to give HA 51% of all New MP
shares and voting rights (the "Limited Preemptive Right'); the
exercise of this Limited Preemptive Right by HA will be subject, in
the event that the Transfer of the shares covered by the Transfer
Notice other than those for which HA has exercised its limited
Preemptive Right (the "Remaining Offered Shares") to the Competitor
is completed, to an undertaking on the part of HA in favor of the
Competitor giving such Competitor a preemptive right over New MP
shares acquired by HA pursuant to this Section 4.6.1(b), should HA
wish subsequently to Transfer them to a third party.
4.6.2 If HA exercises its Limited Preemptive Right, the Selling Party or Parties
may, at their choice, by written notice given to HA within 30 days of the
receipt by the Selling Party or Parties of HA's notice of exercise of the
Limited Preemptive Right:
(a) either Transfer the Remaining Offered Shares to the Competitor under
the terms and conditions of the Transfer Notice within 45 days of the
notice given to HA, or
(b) exercise their Put Option pursuant to the Put Agreement.
4.7 Transfer of holding company shares
The parties agree that the provisions of this Article 4 shall apply
mutatis mutandis to the Transfer of shares of any holding company owning
whether directly or indirectly New MP shares so long as such New MP shares
represent 90% or more of the assets of the holding company (or companies)
involved.
ARTICLE 5
---------
COMMERCIAL RELATIONSHIP WITH RELATED PARTIES
Each of the Shareholders undertake that any commercial transactions,
arrangements, contracts or other similar agreements between New MP and any
entity which is a Related Party to such Shareholder, shall be conducted at arms
length on commercially reasonable terms.
ARTICLE 6
---------
COMPLIANCE
The By-laws of New MP will be amended on or prior to the Merger Date to comply
with the draft attached as Exhibit 1.
ARTICLE 7
---------
ASSIGNMENT
Save as herein provided, this Agreement shall be binding upon and endure for the
benefit of the successors of the parties hereto. Except as specifically
provided for in this Agreement and in connection with the split off process of
Invermaro (described in Article 6 of the Put Option Agreement executed on the
date hereof) which may only be completed after the Merger Agreement, no rights,
obligations or liabilities hereunder shall at any time be assigned by any of the
parties without the express prior written consent of the other parties.
ARTICLE 8
---------
AMENDMENTS
No amendment, modification or other variation of this Agreement shall be
effective unless made in writing and signed by all the parties hereto.
ARTICLE 9
---------
NOTICES
Any notice, instruction, consent or other document to be given under this
Agreement shall be in writing and delivered by hand, by telecopy with mechanical
proof of sending (with a copy mailed the same day or the next business day by
registered mail, return receipt requested) or by certified or registered mail,
postage prepaid, return receipt requested to the recipient Shareholder at the
address shown in the Merger Agreement or to such other address as is notified in
writing from time to time by such Shareholder to each of the other Shareholders.
Any notice shall be deemed received (i) if delivered by hand, at the date of
such delivery, (ii) if transmitted by telecopy (with mailing aforesaid of a copy
thereof by registered mail), on the next business day following the day the
telecopy is transmitted, and (iii) if mailed by registered or certified mail as
aforesaid (without having been telecopied), seven business days after mailing.
ARTICLE 10
----------
GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
substantive laws of Spain.
ARTICLE 11
----------
DISPUTES
In the event of a dispute between the Shareholders arising out of or connected
with this Agreement (including, without limitation, the construction, validity,
existence or enforceability of this Agreement), then such dispute shall be
submitted to and finally settled by binding arbitration in accordance with the
then current Arbitration Rules (the "Rules") of the Chamber of Commerce and
Industry of Geneva (the "Court"), by three arbitrators appointed in
accordance with this Article 11.
The parties to any controversy or claim will jointly appoint three arbitrators
and, if within 30 days from the request of one party (whether as plaintiff or
defendant), the parties fail to do so, then the Court will appoint such three
arbitrators, one of whom shall be neither a Spanish nor a French national or
resident.
The arbitration shall be held in Geneva. The written submissions and
proceedings shall be made and conducted in the English language.
The arbitration award shall be based on law and not on equity (amiable
composition/amigable composicion) and shall be final and binding on the parties.
Judgment upon the award rendered may be entered in any court having jurisdiction
or application may be made to such court for judicial acceptance of the award
and an order of enforcement, as the case may be.
ARTICLE 12
----------
VALIDITY, TERM
13.1 This Agreement shall only enter into force upon occurrence of the Merger,
on the Merger Date. However, when an undertaking provided hereunder is, by
its express terms, to be performed prior to the Merger Date, such
undertaking irrevocably binds the relevant party from the date hereof.
13.2 This Agreement will be valid until the date of the 8th anniversary of the
effective Merger Date, except as provided in Section 13.3 hereunder.
13.3 Early Termination
This Agreement shall automatically terminate and be of no further force
and effect at the time that either the shareholding of HA or the aggregate
shareholding of all the Shareholders signing this Agreement (except HA)
shall be less than 33% of the outstanding share capital and/or voting
rights of New MP.
As to each Shareholder, it shall no longer be bound by, or have any rights
under, this Agreement at the time that it shall no longer own, directly or
indirectly, any of the outstanding share capital of New MP.
ARTICLE 13
----------
INITIAL PUBLIC OFFERING
The shareholders agree that the non-HA shareholders may request at any time
during the course of this Agreement an initial public offering and listing of
the shares of New MP to be initiated and completed as soon as the market
conditions so permit in the opinion of non HA Shareholders.
Upon exercise of this right by the non-HA shareholders, HA shall have the right
to purchase and the non-HA shareholders undertake to sell (in the proportions to
be agreed by the non-HA shareholders, and, failing such agreement, on a prorata
basis) a number of New MP shares (the "Additional Shares") so that HA would
hold, upon completion of the acquisition of such Additional Shares, a majority
of the shares and voting rights of New MP. In the event HA exercises the right
to purchase Additional Shares, such acquisition shall be completed prior to the
implementation of the initial public offering of any New MP shares, on the basis
of the price of the proposed initial public offering of the New MP shares.
ARTICLE 14
----------
ENTIRE AGREEMENT
This Shareholders Agreement forms an integral part of the Merger Agreement and
should be understood and construed as such. In the event of any contradiction
between this Agreement and the by-laws of New MP or between this Agreement and
the Merger Agreement, this Agreement shall prevail.
IN WITNESS WHEREOF, this Agreement has been entered into on 22 March 1999.
For the purpose of identifying the executed copies of this Agreement, the
Parties have requested Mr. Xxxxxxx Xxxx or Xx. Xxxx Xxxxxxx for HA and Xxxxxxx
Xxxxxxx-Pedreno or Xxxxxxxxxx Xxxxxx for MP Shareholders and New MP to initial
the final versions of this Agreement as a consequence whereof the Parties have
only executed the execution page of this Agreement.
/s/ Xxxxxxxx Xxxxx Castane
-------------------------------------------
ADVERTISING ANTWERPEN B.V.
represented by Xx. Xxxxxxxx Xxxxx Castane
/s/ Xxxxxxxx Xxxxx Vila
-------------------------------------------
CALLE XXXXX, X.X.
represented by Xx. Xxxxxxxx Xxxxx Vila
/s/ Xxxxxxxxx Xxxxxxxx-Xxxxxxx Xxxxxxxxx
-------------------------------------------
CANTABRO CATALANA DE INVERSIONES, S.A.
represented by Xx. Xxxxxxxxx Xxxxxxxx-Xxxxxxx Xxxxxxxxx
/s/ Xxxxxx Xxxxxx Claramun
-------------------------------------------
COMPANIA DE CARTERA E INVERISONES, S.A.
represented by [Xx. Xxxxxx Xxxxxx Claramun]
/s/ Xxxxxxx Xxxxxxxx Xxxxxx
-------------------------------------------
DEYA, S.A.
represented by Xx. Xxxxxxx Xxxxxxxx Xxxxxx
/s/ Alain de Pouzilhac
-------------------------------------------
HAVAS ADVERTISING, S.A.
Represented by Mr. Alain de Pouzillhac
/s/ Xxxx Xxxxxxxx-Xxxxxx Xxxxx
-------------------------------------------
INVERMARO, S.L.
represented by Xx. Xxxx Xxxxxxxx-Xxxxxx Xxxxx
/s/ Xxxx Xxxxxxxx-Xxxxxx Xxxxx
-------------------------------------------
XXXXXXXX-XXXXXX FAMILLY
represented by Xx. Xxxx Xxxxxxxx-Xxxxxx Xxxxx
Exhibit I
Draft By-Laws of New MP
BY-LAWS OF THE COMPANY
"INVERSIONES Y SERVICIOS PUBLICITARIOS, S.A."
TITLE I
-------
Article 1.- Name.
-----------------
The present Company will operate under the name of "Inversiones y Servicios
Publicitarios, S.A.". The Company will be governed by these By-laws and by the
legal applicable dispositions.
Article 2.- Company's Purpose
-----------------------------
The Company's purpose consist of the following:
The activities usually developed by the Advertising Agencies in accordance with
the provisions of the Law 34/1.988, dated November 11 including, the creation,
preparation, scheduling and implementation of publicity in the media, which will
include any means of transmitting or communicating information with no limit
whatever, whether in existence now or in the future, acting in its own name or
in the name and on behalf of third parties advertisers, whether natural persons
or public or private companies.
The rendering of marketing and consulting services in general, and specifically
the rendering of brand evaluation and positioning services and media planning
services which will consist of the implementational media planning, media
evaluation, negotiation and buying, and analysis of results.
The management, development and rendering of consulting and analysing services
related to statistic and sociological behaviour research.
The said activities included in the Company's purpose may be developed by the
Company totally or partially, directly or indirectly, through the participation
in other companies with identical or analogous purpose.
Article 3.- Duration of the Company
-----------------------------------
The Company is constituted for an indefinite period of time and will be
dissolved for any of the causes set forth in the applicable regulation.
1
Article 4.- Registered Domicile
-------------------------------
The Company will be addressed at Xxxxxxx Xxxxxxx Xxxxx, xx. 00, xxxxxx 00
(Xxxxxx). The Board of Directors of the Company may transfer the domicile
within the limits of the municipal territory as well is establish, remove, or
transfer branches, agencies, delegations or offices in general within Spanish
territory or abroad.
TITLE II
--------
Article 5.- Share capital and Shares
------------------------------------
The capital of the Company amounts to ... PESETAS/EUROS, fully subscribed and
paid, and it is represented by ... registered shares, each bearing a nominal
face value of [ ] Pesetas, all of them of the same class and series and fully
subscribed and paid, each having one vote.
Article 6.- Register Book of Shares
-----------------------------------
The shares will appear in a register book carried by the Company, duly legalized
by the Commercial Register, wherein the subsequent transfer of shares are
registered showing the name, surname, trade or firm's official name, nationality
and domicile of the subsequent owners, as well as the real rights and other
encumbrances regularly burdening and encumbering the shares.
The Company will only consider shareholders those persons who are registered in
the aforesaid book as a shareholder. Such registration must be effected within
10 days upon the receipt of the pertaining shareholder's or otherwise entitled
person's request.
Any shareholder who requests it may examine the register book of registered
shares.
The Company may only rectify inscriptions which are considered to be false or
inaccurate when, having been notified by the Company of its intention to proceed
in this way, the concerned persons have not expressed their opposition during
the thirty days following the notification.
Article 7.- Transfer of the Shares.
-----------------------------------
The transferability of the Company shares will be governed by the following
terms and conditions.
2
7.1. General application.
All Transfers of Company shares (as defined in Section 7.2 below) are
subject to the provisions of this Article 7, except -and subject to prior
notification of the proposed Transfer to all Shareholders- for the
Transfer of Company shares to one or more Shareholders.
7.2. Pre-emptive rights vis-a-vis third parties.
Whenever a shareholder receives an offer to sell or transfer (by any means
including, without limitations, by way of split up, spin-off, contribution in
kind, etc.) (collectively a "Transfer") part or all of its shares in the
Company, (the "Offered Shares'), to a third party, and such Shareholder (the
"Selling Shareholder") desires to accept such offer, then:
(a) the Selling Shareholder shall first notify the remaining shareholders
(the Non-selling Shareholders") and the Board of Directors (through
its President) in writing, setting forth in such notice the identity
of the proposed purchaser (the "Transferee"), the proposed purchase
price and the other terms and conditions of the proposed Transfer.
(b) The President shall, in turn, -and in the name of the Board- within a
period of 5 days from the date following receipt of the above-
mentioned notice, notify the remaining shareholders (the "Non-selling
Shareholders") of the aforesaid intended Transfer or Offer by means of
telefax and registered mail.
(c) Each of the Non-selling Shareholders shall have the right -within 45
days after after ellapsing of the period of time referred to in
section "(b)" above (the "First Option Period"), to inform the Selling
Shareholder (through the Board, represented by its President) by
notice in writing (a "Purchase Notice") that it wishes to purchase, at
the same price and under the same terms and conditions as those set
forth in the Transfer Notice, (i) the proportion of the Offered Shares
which the Company shares held by that Non-selling Shareholders bear to
all Company shares held by all the Non-selling Shareholders, and (ii)
to the extent that any other Non-selling Shareholders does not
exercise in whole its right under Article 7.2(c)(i), the proportion of
the remaining Offered Shares which the Company shares held by the
relevant Non-selling Shareholders bear to all Company shares held by
the Non-selling Shareholders who wish to exercise the additional right
provided in this Article 7.2(c)(ii).
(d) If any Non-Selling Shareholder did not exercise in whole its
preemption right under Article 7.2.c) within the First Option Period,
the Board (through its President) will, on the date on which the First
Option Period expires, ascertain
3
that fact by comparison with the proportions just mentioned above,
which will be determined in connection with the stand of the Register
Book of Shares. Upon such ascertainment, if any, the President will
notify -within a further period of five days- all remaining Non-
Selling Shareholders of this fact by telefax and by registered mail as
well. During fifteen days (the "Second Option Period") ensuing from
the ellapsing of the aforesaid period of five days, the remaining Non-
Selling-Shareholders will be entitled to submit to the Selling
Shareholder (also through the President of the Board) offers regarding
that remaining shares in its entirety, although each of the remaining
Non-Selling-Shareholders will be able to do so only proportionally to
its aggregate shareholding in the Company (thereby already taking into
account the shares in respect of which such shareholders had submitted
offers within the First Option Period).
(e) If the Non-selling Shareholders so serve Purchase Notices in respect
of all, but no less than all, of the Offered Shares, the purchase of
the Offered Shares by the Non-selling Shareholders having exercised
their preemptive rights pursuant to Article 7.2(c) above shall be
completed no later than 45 days (the "Purchase Period") after the
expiration of the Option Period; if Purchase Notices are not served in
respect of all the Offered Shares within the Option Period, or if the
purchase of all the Offered Shares by the Non-selling Shareholders
having exercised their preemptive rights is not completed within the
Purchase Period, the Selling Shareholders shall, within 60 days (the
"Transfer Period") after the expiration of the relevant Option Period
or Purchase Period, be entitled to Transfer, subject to the provisions
of this Article 7.2., all the Offered Shares to the proposed
Transferee on the terms specified in the Transfer Notice. If the
Transfer of the Offered Shares to the Transferee is not completed
during the Transfer Period, any Transfer of Company shares covered by
the initial Transfer Notice will thereafter be subject to all
provisions of this Article 7.2.
7.3. Acquisition through a judicial, notarial or administrative proceeding.
In cases of acquisition as a result of judicial, notarial or administrative
collection proceedings, the shareholders shall also have a right of first
refusal over the relevant shares. In these cases, the person responsible for
notifying the Board of Directors (through its President), in order to comply
with the procedure for exercising rights of first refusal shall be the awardee
in judicial, notarial or administrative proceedings, who shall be obliged to
inform on the transfer and the circumstances thereof and indicate his personal
details. This notification shall be done within the fifteen days following the
completion of the transfer with the same effects than the notice referred to in
paragraph a) above, and therefore the corresponding periods for the Non-selling
Shareholders to exercise their right of first refusal will commence. If the
Non-selling Shareholders wish to use their right of pre-emption they must,
complying with the requisites set
4
out in the preceding paragraphs, notify the awardee of their intention to
acquire the relevant shares for the price paid by the awardee. The Company will
not acknowledge the awardee as owner of the shares until the period precised in
the previous paragraphs for the exercise of the Non-selling Shareholders right
of first refusal has expired or all Non-selling Shareholders have exercised
their right of first refusal.
7.4. Transfers among shareholders and their relatives.
Transfers of shares among shareholders and to spouses, descendants and
ascendants of the Selling Shareholder will be free, subject to the provisions
established below. In any case the Selling Shareholder shall communicate the
Board of Directors of the company, at the registered office, its intention to
Transfer its shares (the "Offered Shares"), indicating the number and
identification of the Offered Shares, the selling price per share, terms of
payment, personal details of acquirer and other conditions of the intended
transfer, if any. This notice shall be served within 30 working days prior to
conclusion of such transfer. The Selling Shareholder may not execute any
binding agreement concerning the transfer of the Offered Shares prior to the end
of such 30 days period. Failure to comply with the foregoing restriction will
have the same effects as those established in clause 7.4 below.
7.5. Preferential subscription rights and convertible bonds.
Preferential subscription rights and convertible bonds if any, shall be
transferable on the same conditions as the shares deriving therefrom and,
therefore, the same procedure as that for the transfer of shares shall be
followed.
7.6. Breach of the provisions of this clause.
Transfers made in breach of the provisions of this clause shall not be valid
before the Company, which shall refuse to record them in the register book, and
such transfer shall be null and void.
TITLE II.- CONTROL AND ADMINISTRATION OF THE COMPANY
----------------------------------------------------
Article 8.- Company bodies
--------------------------
The Company will be controlled, managed and administered by the General
Shareholders' Meeting, by the Board of Directors and, a Managing Director.
5
A) THE GENERAL SHAREHOLDERS MEETING
-----------------------------------
Article 9.- The General Shareholders' Meeting
---------------------------------------------
The General Shareholders' Meeting shall be the supreme managing and governing
body of the Company.
The resolutions of the General Shareholders' Meeting, if validly approved, shall
be binding on all the shareholders, including those who did not attend the
meeting or disagree with such resolutions, with the exceptions set forth by the
Act.
Article 10.- Ordinary and Extraordinary Meetings
------------------------------------------------
The General Shareholders' Meeting may be Ordinary or Extraordinary. They shall
be called by a Board of Directors' resolution or by the Chairman of the Board of
Directors.
The Ordinary Shareholders Meetings, previously called by the Board of Directors,
shall be held within the first six months of each fiscal year in order to
examine the management of the company approving, if appropriate, the accounts
and balance of the precedent fiscal year and to decide on the application of the
Company's result.
The Extraordinary General Shareholders Meetings shall be called as many times as
the Board of Directors deems it necessary. It will also meet at request of
shareholders representing at least 5% of the share capital, specifying in the
request the matters to be discussed at the meeting. In this case, the
Shareholders Meeting will be called and held within thirty days as of the date
of the corresponding request to the Board of Directors, and the Board shall
include, among the matters to be discussed at that meeting, those requested by
the aforementioned shareholders.
However, the Shareholders' Meeting, even if called as ordinary, may also discuss
and decide on any of those matters for which it is specifically competent if
included in the calling.
Article 11.- Calling of the Meeting
-----------------------------------
The Ordinary and Extraordinary Shareholders' Meetings shall be called through a
notice published, at least fifteen days prior to the date of the meeting, in the
Official Companies Registry Gazette ("Boletin Oficial del Registro Mercantil")
and in one of the major daily newspapers in the province of the Company's
domicile, except in the cases of merger and spin-off when the notice period must
be a minimum of thirty days.
6
The notice shall state the date of the meeting on first call and the matters to
be discussed. It may also state the date in which, if required, the meeting
will be held on second call, which shall be at least 24 hours following the date
set for the meeting to be held on first call.
In all cases it shall mention the shareholders' right to obtain from the Company
immediately and at no cost, the documents that are to be subject to their
approval and, where relevant, the account auditors' report.
Article 12.- Universal Meeting
------------------------------
Notwithstanding the provisions of article 12, a general meeting shall be deemed
to have been duly called and there shall be a quorum to review any issue,
whenever the entire share capital is present or duly represented and those
attending unanimously agree to hold a general meeting.
Article 13.- Attendance and representation
------------------------------------------
All the shareholders may participate in the General Shareholders' Meetings,
regardless of the number of shares owned.
The shareholder must have registered the ownership of his shares in the
Registered Book of the Company two days prior to the date of the Shareholders'
Meeting being held.
Non shareholders or executives may be allowed to attend the General Shareholders
Meeting at the request of any Director with the discretionary approval of the
Chairman of the Board of Directors.
Administrators should attend the Shareholders' Meetings, although they are
exempted of such duty for the Universal Shareholders' Meetings.
Every shareholder entitled to attend may be represented in the Shareholders
Meeting (including Universal Shareholders' Meeting) through another person, even
though he is not a shareholder.
The under age, disqualified and legal entities shall be represented by their
legal representative.
Article 14.- Quorum of attendance and voting quorum
---------------------------------------------------
The shareholders' meetings will be seen as validly constituted at first call
when the shareholders present or represented, hold at least two thirds of the
subscribed capital with right to vote. At second call, there shall be a quorum
present at the meeting with a majority of the share capital present or
represented thereat.
7
Decisions will be taken by a majority of the votes present or represented,
except for the amendment of these by-laws that will require the favourable vote
of two thirds of the shareholders, present or duly represented.
Article 15.- Place of holding
-----------------------------
The General Shareholders' Meeting will take place at the locality of the
Company's domicile. Universal Shareholders' Meeting are exempted of this
obligation and they may be held anywhere in the Spanish national territory or
abroad.
The persons acting as Chairman and Secretary of the Board or, as Vice Chairman
and Vice Secretary will act as such for the Shareholders' Meeting. In the case
of the absence or resignation of them, the meeting will be chaired by the person
chosen by the shareholders in the General Meeting for such purpose.
The General Shareholder Meeting may discuss and vote only resolutions concerning
matters included in the calling.
The Chairman shall manage the discussions and decide the length of each of them.
Article 16.- Minutes of the Meeting
-----------------------------------
Minutes of each meeting, signed by the Chairman and the Secretary, and
containing the discussions and resolutions of the General Meeting, shall be
drawn up and recorded in a Book of Minutes.
Minutes shall be approved by the shareholders attending the meeting upon its
conclusion, or shall be approved, within fifteen days after the Meeting, by the
Chairman and two interventors, one representing the majority and one
representing the minority.
B) THE BOARD OF DIRECTORS
-------------------------
Article 17.- The Board of Directors
-----------------------------------
The Company will be represented, both in court or otherwise, directed and
administered by a Board of Directors acting jointly. The representation will
involve all the acts included in the corporate purpose, with the only limitation
of those matters for which the General Shareholders' Meeting is exclusively
competent or which are not included in the corporate purpose.
The Board of Directors will be formed of a minimum of 9 and a maximum of 23 as
determined by the General Shareholder Meeting Directors. Substitute Directors
may be appointed by the General Shareholders Meeting.
8
Article 18.- Duration of the office and cooption.
-------------------------------------------------
The Directors shall be appointed for a maximum period of five years and may be
reelected one or several times.
If during the term for which the directors are appointed, vacant positions
arise, the Board may appoint from among the shareholders the persons to occupy
them until the next following General Meeting is held.
Article 19.- Chairman
---------------------
The Board of Directors shall elect from among its members a Chairman, and, if
appropriate, may dismiss them.
The Chairman of the Board shall have a casting vote. Should the Chairman and
the Vice-Chairmen not be present, the members of the Board present or
represented will appoint by the majority of the votes who will chair the
meeting.
Article 20.- Status as Director. Compatible functions of the Company Directors
-------------------------------------------------------------------------------
The post as Director shall be compatible with any other function in the Board or
in the Company. The post as Director may be remunerated and such remuneration
shall be compatible with that contained in Article 27 of the present By-laws.
Article 21.- Meetings and calling
---------------------------------
The Board of Directors shall meet, after individual notice has been given,
whenever the Chairman resolves to call a meeting or if requested by any two of
the members of the board, in which case the Chairman shall convene the Board
meeting within ten days. In any case the Board of Directors shall meet at least
four times a year.
The Boards shall be called with 5 days notice, except for the Board of Directors
to present the Annual Accounts which will be called one month in advance. The
notice will be sent by the Chairman of the Board of Directors.
Article 22.- Resolutions without a meeting
------------------------------------------
The Board may adopt resolutions in writing and without a meeting provided that
no Director opposes such proceeding.
9
Article 23.- Place of Meeting
-----------------------------
The Board of Directors' Meeting will take place at the locality of the Company's
domicile, notwithstanding that, being all the Directors present or represented,
they accept holding it in a different location.
Article 24.- Attendance and representation
------------------------------------------
The Directors may be represented in the meeting by any other Director, provided
that the proxy is given in writing.
Directors that cannot participate physically may request authorisation to
participate in the debate by adequate technical means which will be granted or
not by the Chairman of the Board of Directors, at his entire discretion .
Notwithstanding the foregoing, Directors that participate in such manner will
delegate their proxy to attendees for the purpose of fulfilling the attendance
requirements established by the existing law in force.
Article 25.- Quorum of attendance and voting quorum
---------------------------------------------------
The Board of Directors will be considered validly constituted whenever the
majority of the members of the Board of Directors attend the meeting, present or
represented. The Board shall pass resolutions, by majority of the total members
present or represented.
Article 26.- Minutes of the Board
---------------------------------
Minutes of each meeting, signed by the Chairman and the Secretary so acting in
that meeting, and containing the discussions and resolutions of the Board
Meeting, shall be drawn up and recorded in a minute book.
The Minutes shall be approved by (i) the directors attending the meeting upon
its conclusion, or (i) at the next Board Meeting, or (iii) by the Chairman and
two directors appointed by two thirds vote for such purpose by the corresponding
Board meeting.
Article 27.- Remuneration of the Directors.
-------------------------------------------
The members of the Board may receive an allowance covering the expenses incurred
as a consequence of their attendance to the Company governing bodies meetings if
so approved by the General Shareholders Meeting.
Additionally, the General Shareholders Meeting may allocate the members of the
Board a fixed amount that will be distributed among the Directors by decision of
the Board.
10
C) MANAGING DIRECTOR
--------------------
Article 28.- Appointment and faculties.
--------------------------------------
The Board of Directors may appoint from among its members, and shall dismiss, if
appropriate, one Managing Director.
TITLE III. - FISCAL YEAR, ACCOUNTANCY AND AUDITORS
--------------------------------------------------
Article 29.- Fiscal Year
------------------------
The fiscal year will begin on January 1st of each year and will close on
December 31st of the same year.
Article 30.- Accountancy
------------------------
The Company shall maintain proper, complete and accurate books and accounts
(including records of receipts and expenses), in accordance with generally-
accepted accounting principles in Spain.
Article 31.- Auditor
--------------------
The financial statements of the company shall be reviewed annually by an
independent firm of auditors which will be appointed as Company Auditor.
Article 32.- Annual Accounts formulation
----------------------------------------
The Board of Directors shall formulate within a maximum term of three months as
of the closing of the fiscal year, the annual accounts, the management report
and the proposal for distribution of results. The annual accounts shall compose
of balance sheet, profit and losses account and annual report. These documents
shall be written clearly and shall show the and true and fair view of the net
worth, the financial situation and the results of the Company, pursuant to what
is provided by law and by the Commerce Code, and shall be signed by all the
members of the Board of Directors. In case of any signature missing each
document lacking the signature will state this fact with express indication of
the cause for such lack of signature.
As of the calling of the General Shareholders Meeting, any shareholder may be
provided, immediately and at no cost, with the documents to be submitted to the
approval thereto and the audit report of the company. The advertisement of the
General Shareholders Meeting shall expressly mention this right.
11
TITLE IV.- DISSOLUTION AND LIQUIDATION
--------------------------------------
Article 33.- Causes of dissolution
----------------------------------
The Company will be dissolved by a resolution of the General Shareholders
Meeting adopted at any time in accordance with the provisions of the Act, and
for any of the causes set forth in the Act.
Article 343.- Liquidation
-------------------------
The General Shareholders Meeting called for this purpose shall establish the
rules to be observed for the liquidation and shall appoint one or several
liquidations, in an uneven number, pursuant to the provisions set out in the
Law. As of the moment that the Company is declare to be in liquidation, the
powers of the Board of Directors to represent the company in the subscription of
new contracts or new contractual obligations will cease and the liquidator shall
be vested with the powers specified by Law.
12
