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EXHIBIT 10.30
DEPOSIT, OPERATION, EXPLOITATION AND STOCK PURCHASE OPTION AGREEMENT ENTERED
INTO BY AND BETWEEN ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ AND ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, IN THEIR OWN RIGHT, HEREINAFTER REFERRED TO AS "STOCKHOLDERS" AND
"UNIMARK GROUP INC", REPRESENTED HEREIN BY ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, HEREINAFTER
REFERRED TO AS "DEPOSITOR" PURSUANT TO THE FOLLOWING:
D E C L A R A T I O N S
BY "STOCKHOLDERS"
I. That they are individuals, of legal age, with legal capacity to execute any
document or agreement, whether of a civil or commercial nature, as allowed by
the law.
II. That they are the sole and legitimate owners of 500 shares of registered
stock, Series "A", Class I and 120,270 shares of Series "A", Class II stock,
with a nominal value of $100.00 (One hundred and 00/100 Mexican pesos), each,
which in their totality represent all capital stock as of this date of the
Corporation known as "FRUTALAMO, S.A. DE C.V.", which is the issuing company and
that they are designated by the documents and business records of such as acting
in behalf of the company.
III. That the corporation which issued the stocks and is owner of all the real
estate and personal property of juice production (THE PLANT), was duly organized
under the laws of Mexico, as attested to by document number 16,471 dated August
3, 1992, sworn to before LIC. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, Notary number 156 of the
Federal District, and is duly registered in the Public Property and Commercial
Registry in its jurisdiction, and listed in the Federal Taxpayer Registry under
number FRU-920803-8H2.
IV. That it is their desire and that no legal impediment exists for
"STOCKHOLDERS" to transfer to "DEPOSITOR" or to "GISALAMO, S.A. DE C.V." the
complete operation and exploitation of all real and personal property for juice
production (THE PLANT), which is the property of "FRUTALAMO, S.A. DE C.V." and
the stock purchase option referred to hereinabove in Provision II, as owners of
said stock, subject to the terms and conditions set forth hereunder.
THE "DEPOSITOR"
I. That it is a foreign corporation, with foreign residence, duly organized
under the laws of the Sate of Texas, as attested to by the document granted on
the ninth of September of 1996, by the Secretary of the State of Texas, of the
United States of America.
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II. That the powers exercised by its representative were granted under the laws
of the State of Texas, as attested by the document dated July 26, 1996, sworn to
before ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Notary Public of the State of Texas, of the United
States of America.
III. That it has the necessary powers to execute any document or agreement,
whether civil or commercial, allowed by the laws of Mexico or the United States
of America, as well as the necessary means for the full operation and
exploitation of the real and personal property for juice production (THE PLANT),
which is the property of "FRUTALAMO, S.A. DE C.V." and it wishes to have the
option to purchase the stock which is the property of "STOCKHOLDERS".
Therefore, in consideration of the aforementioned provisions, the Parties hereby
agree to the following:
A R T I C L E S
ARTICLE ONE: The operation and exploitation of THE PLANT, shall be granted to a
new corporation named "GISALAMO, S.A. DE C.V." in which 60% of the stock shall
be held by "DEPOSITOR", or whomever such may designate, and 40% shall be held by
"STOCKHOLDERS". Said stockholdings may only vary pursuant to the articles of
association of "GISALAMO, S.A. DE C.V." or until the end of the term fixed in
the following ARTICLE TWO.
ARTICLE TWO: The term referred to in the foregoing article shall be three (3)
years or until payment in full of the price established for the stock purchase
option referred to in article nine, should such option be exercised.
ARTICLE THREE: The administration and control of the corporation operating and
exploiting THE PLANT shall be the sole and exclusive responsibility of
"GISALAMO, S.A. DE C.V."
ARTICLE FOUR: In the event that at the end of the term, or before, as specified
in Article Nine, "DEPOSITOR" shall exercise its stock purchase option,
"STOCKHOLDERS" may, at their election, continue to share in stockholdings in the
percentage corresponding to the payments made.
ARTICLE FIVE: During the period in which "STOCKHOLDERS" have stock participation
in "GISALAMO, S.A. DE C.V.", the company which shall operate and exploit THE
PLANT, should "DEPOSITOR" not make full payment of the amounts set forth in
Articles Six and Nine upon exercising its option to buy, "STOCKHOLDERS" may
continue to draw their respective dividends, with the following exception:
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a) The first $420,000.00 dollars of dividends, resulting in each of the years,
from this date until the end of three (3) years, whichever shall occur first,
shall be payable to "DEPOSITOR" or to whomever shall be the stockholder of
"GISALAMO, S.A, DE C.V.", and any amount which shall exceed said specified
amount, shall be distributed according to holdings to each stockholder. The
aforementioned amount, shall not be cumulative for the second and third years.
b) The dividends produced after the period specified in the foregoing paragraph
a), shall be payable 60% to "DEPOSITOR" or to the shareholder of "GISALAMO, S.A.
DE C.V." and 40% or less to "STOCKHOLDERS", according to the percentages
specified in the articles of association of the latter, as long as the former
has not paid the latter the full amount agreed upon for the purchase option
established in Article Nine of this Agreement.
ARTICLE SIX: In order for "GISALAMO, S.A. DE C.V.", to initiate operation and
exploitation of THE PLANT, "DEPOSITOR" shall deliver to "STOCKHOLDERS" or to
"FRUTALAMO, S.A. DE C.V." a guaranty deposit in the amount of $1,910,000.00 (One
million, nine hundred and ten thousand and no/100) as follows:
a) $650,000.00 dollars upon execution of this Agreement.
b) $420,000.00 no later than October 30, 1997
c) $420,000.00 no later than October 30, 1998
d) $420,000.00 no later than October 30, 1999
Deposits shall be designated for payment of debt accrued by "FRUTALAMO, S.A. DE
C.V." as of this date.
ARTICLE SEVEN: In order to exercise its option to purchase stock belonging to
"STOCKHOLDERS", "DEPOSITOR" shall fulfill the provisions of the foregoing
paragraph and attest to its desire to exercise its option to purchase referenced
in Article Nine no later than October 30, 1999.
ARTICLE EIGHT: In order for "DEPOSITOR" to exercise its option to buy under the
terms set forth hereunder in Article Nine, "STOCKHOLDERS" shall undertake to
render "FRUTALAMO, S.A. DE C.V." free of debt as of said date. In the event of
the contrary, the price stipulated shall be discounted in the amount of debt
that the latter shall have as of October 30, 1999.
ARTICLE NINE: Upon exercise of its stock purchase option, "DEPOSITOR" shall pay
"STOCKHOLDERS" in addition to the deposits aforementioned in Article Six of this
Agreement, the amount of $6,000,000.00 (Six million dollars
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and no/100 U.S. Currency), in cash or in stock issued or to be issued by UNIMARK
GROUP INC. for the same value or a combination of methods of payment, as
mutually agreed upon by the Parties. Said amount shall be paid as follows:
a) October 30, 1999 $ 1,800,000.00 dollars
b) October 30, 2000 $ 1,800,000.00 dollars
c) October 30, 2001 $ 600,000.00 dollars
d) October 30, 2002 $ 600,000.00 dollars
e) October 30, 2003 $ 600,000.00 dollars
f) October 30, 2004 $ 600,000.00 dollars
ARTICLE TEN: Upon exercise of its stock purchase option and provided that
"DEPOSITOR" shall not have paid "STOCKHOLDERS" the total amount agreed upon in
the foregoing article in cash, stocks or a combination of both, normal interest
shall be accrued at the rate of 7% annually on unpaid balances, and said
interest shall be payable in cash quarterly until total payment has been made.
ARTICLE ELEVEN: Regardless of the fact that "STOCKHOLDERS" shall continued to
draw the interest aforementioned in the preceding article, if total payment of
the amount established in Article Nine is not made, they shall continue to hold
40% of the stockholdings or a lesser percentage according to the articles of
association of "GISALAMO, S.A. DE C.V.", being the company which shall operate
and exploit THE PLANT, along with the benefits resulting from said stock, with
the exception of that which is expressly stated in Article Five of this
Agreement.
ARTICLE TWELVE: In the event that "DEPOSITOR" not exercise its stock purchase
option no later than October 30, 1999, the real and personal property subject of
the operation and exploitation comprising THE PLANT, shall revert back to the
operation and exploitation of "FRUTALAMO, S.A. DE C.V." and/or to
"STOCKHOLDERS".
ARTICLE THIRTEEN: Should "DEPOSITOR" not exercise its stock purchase option no
later than October 30, 1999, the deposits delivered to "STOCKHOLDERS"
aforementioned in Article Six of this Agreement, and the real and personal
property comprising THE PLANT shall remain with the latter as payment of rent
accrued during the time same were operated and exploited by "GISALAMO, S.A. DE
C.V."
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ARTICLE FOURTEEN: Should all requirements set forth in this Agreement be met,
and the stock purchase option be EXERCISED, "STOCKHOLDERS" shall deliver and
endorse to "DEPOSITOR" the stocks which are the subject of this agreement, free
and clear of all liens and limitations of ownership.
ARTICLE FIFTEEN: Both Parties attest that the agreed upon value of the shares,
plus the desposits referred to in articles six and nine of this Agreement, is
the total true value of the tangible and intangible assets OF "FRUTALAMO, S.A.
DE C.V." with all which pertains to it de facto and de jure.
ARTICLE SIXTEEN: Upon exercise of its option to purchase stock from "FRUTALAMO
S.A. DE C.V.", "DEPOSITOR" shall be the sole legitimate shareholder of same and
therefore shall be owner of all that pertains to the company which issued the
stocks de facto and de jure, including the financial losses to be amortized as
of the date the stock purchase option is exercised.
ARTICLE SEVENTEEN: Upon exercising its stock purchase option, "STOCKHOLDERS"
shall be obliged to deliver to "DEPOSITOR" all accounting, tax, and business
documents as well as all contracts, authorizations, permissions and any other
document pertaining to "FRUTALAMO, S.A. DE C.V."
ARTICLE EIGHTEEN: As of this date, "STOCKHOLDERS" and "FRUTALAMO, S.A. DE C.V."
shall not carry out any operations related to purchase/sale of merchandise,
finished products or any other operation affecting the interest of "DEPOSITOR"
or "GISALAMO S.A. DE C.V.", except for those operations required to continue the
administration of the business until the stock purchase option is exercised,
including but not limited to: payment of income and expenses accrued, payment of
obligations contracted before or after, accounting, audits, administration, etc.
ARTICLE NINETEEN: Should "DEPOSITOR" exercise his stock purchase option,
DEPOSITOR shall be the only legitimate entity responsible for all operations
carried out by "FRUTALAMO, S.A. DE C.V." as of said date, and shall leave the
property of "STOCKHOLDERS" free of responsibility and same shall be free from
any contingency which may arise, inasmuch as "STOCKHOLDERS" shall only be
responsible for the debts accrued until the date that "DEPOSITOR" has to
exercise his option to buy (October 30, 1999).
ARTICLE TWENTY: The Parties mutually attest that until all obligations set forth
in this Agreement have been fulfilled, they shall not grant as guaranty, or
special guarantee, pledge or mortgage or an any other way encumber the real and
personal property and other tangible or intangible assets which comprise THE
PLANT which are the property of "FRUTALAMO, S.A. DE C.V." without the express
consent of each of the Parties.
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ARTICLE TWENTY-ONE: Parties mutually agree that all amounts specified in this
Agreement may be paid, reimbursed or refunded in United States Dollars or in the
equivalent amount in Mexican currency at the exchange rate posted by the Banco
de Mexico for sale on the date in question.
ARTICLE TWENTY-TWO: "STOCKHOLDERS" shall be ensure that "FRUTALAMO, S.A. DE
C.V." execute an agreement granting "GISALAMO, S.A. DE C.V." the corporation
which shall operate and exploit THE PLANT, a contract of "Gratuitous Loan", for
the temporary use and possession of the tangible and intangible assets which
comprise THE PLANT, and which are property of "FRUTALAMO, S.A. DE C.V." under
the terms set forth herein, which term shall not exceed October 30, 1999, in the
event that the option to purchase shares is exercised pursuant to the provisions
of Article Nine.
ARTICLE TWENTY-THREE: In the event that "DEPOSITOR" not exercise its stock
purchase option referred to herein, regardless of whether or not "GISALAMO S.A.
DE C.V." returns to "FRUTALAMO, S.A. DE C.V.," the tangible and/or intangible
assets granted in the gratuitous loan agreement, the Operating Company shall
continue to grant "STOCKHOLDERS" participation in the income or dividends
resulting from operations, and "STOCKHOLDERS" may request audits of financial
statements of the Operating Company regardless of their percentage of
stockholdings.
ARTICLE TWENTY-FOUR: Regardless of the provision of Article Twenty, the
Licenses, Permissions, Authorizations, Concessions, and Franchises and any other
right which may exist, shall remain the property OF "FRUTALAMO, S.A. DE C.V."
and/or "STOCKHOLDERS"; until all contractual obligations hereunder are
fulfilled.
ARTICLE TWENTY-FIVE: "FRUTALAMO, S.A. DE C.V." and/or "STOCKHOLDERS" shall allow
"DEPOSITOR" and/OR "GISALAMO, S.A. DE C.V." the corporation which shall operate
and exploit the real and personal property, the use of the list of clients and
suppliers, operating systems and any other rights pertaining to the former,
including but not limited to the use of the export quota authorization of
products drawn up by the former and annually assigned by the Consejo National
Agropecuario [National Department of Agriculture & Fishery].
ARTICLE TWENTY-SIX: The Parties mutually agree that "GISALAMO, S.A. DE C.V." the
corporation which shall operate and exploit THE PLANT belonging to "FRUTALAMO,
S.A. DE C.V.", by means of the gratuitous loan agreement executed, shall be
administered pursuant to the terms set forth in the articles of association and
that such do not interfere or in any way affect the provisions of this
Agreement.
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ARTICLE TWENTY SEVEN: Should this Agreement be rescinded, there shall be a
contractual penalty in the amount of $1,000,000.00 dollars (One million and
no/100 U.S. Dollars).
ARTICLE TWENTY-EIGHT: The following shall be considered as cause for the
rescission of the contract and the application of the contractual penalty:
Should "DEPOSITOR"
a) not exercise its stock purchase option as referred to herein, no later than
October 30, 1999.
b) not liquidate the deposits and contractual sums for the stock purchase
option, within the established periods, as referenced in Articles Six and Nine
of this Agreement.
c) not grant "STOCKHOLDERS", or whomever same shall designate, participation in
the income and dividends that are their share IN "GISALAMO S.A. DE C.V.", the
Operating Company of the tangible and intangible assets of "FRUTALAMO, S.A.
DE C.V."
d) not operate and/or exploit the tangible and intangible assets which are the
property of "FRUTALAMO, S.A. DE C.V.", pursuant to the terms sets forth in the
gratuitous loan agreement executed as of this date.
e) Give as guaranty, loan, rent, mortgage, special guaranty, or in any other way
encumber the tangible and/or intangible assets which are the property of
"FRUTALAMO, S.A. DE C.V." and/or the "STOCKHOLDERS", without their express
authorization.
f) Either refuse to indemnify contracted personnel pursuant to Article
Twenty-Six or refund to "STOCKHOLDERS" any expenditure that they may have had to
make in order to comply with labor regulations, which are the duty of
"DEPOSITOR".
g) Refuse to return to "FRUTALAMO, S.A. DE C.V." the assets which comprise "THE
PLANT", in the event that the stock purchase option is not exercised.
h) Fail to comply with any of the contractual obligations hereunder.
SHOULD "STOCKHOLDERS"
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a) Refuse to carry out the stock purchase option as referenced herein, when
"DEPOSITOR" and/or "GISALAMO, S.A. DE C.V." shall have fulfilled all obligations
established herein.
b) Refuse to deliver shares or titles due "DEPOSITOR", upon fulfillment of the
contractual obligations.
c) Refuse to receive payments made by "DEPOSITOR", when these have been made
within the terms established herein.
d) Refuse to refund to "DEPOSITOR" the amounts that the latter may have expended
to cover legal, tax, labor or any other obligation which are the duty of the
"STOCKHOLDERS" or to the Company issuing the stocks until the date the stock
purchase option referenced herein is exercised.
e) Refuse to deliver to "DEPOSITOR" or to whomever the latter shall designate,
the tangible and intangible assets necessary for operation and exploitation.
f) Not provide the required advice to "DEPOSITOR" and/or to the company which
shall operate and exploit THE PLANT, with respect to clients, suppliers,
production, distribution and deny use of the export quota authorization,
assigned annually by the Consejo National Agropecuario.
g) Fail to comply with each and every contractual obligation herein.
ARTICLE TWENTY-NINE: "DEPOSITOR" and/or "GISALAMO, S.A. DE C.V.", the
corporation which shall operate and exploit THE PLANT, shall hire the
administration and/or production personnel deemed necessary and which are
currently employed by "FRUTALAMO, S.A. DE C.V.", AND "FRUTALAMO, S.A. DE C.V."
and/or "STOCKHOLDERS" shall completely indemnify the personnel that the former
does not require.
The obligation of "FRUTALAMO, S.A. DE C.V." to indemnify the personnel that
"DEPOSITOR" and/or "GISALAMO, S.A. DE C.V.", as the company that shall operate
and exploit THE PLANT, do not require shall terminate March 31, 1997, should the
latter not advise the former, no later than said date, that it does not require
said personnel.
ARTICLE THIRTY: The Parties mutually convene to execute this Agreement, before
the notary public of their choosing, the expense of which shall be borne by
"DEPOSITOR."
ARTICLE THIRTY-ONE: For the purposes of this Agreement, the Parties give the
following addresses:
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"STOCKHOLDERS" "DEPOSITOR"
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Poniente No. 226
Col. San ▇▇▇▇▇▇ Chapultepec Cd. Victoria, Tamps.
C.P. 11850 ▇.▇. ▇▇▇▇▇
▇▇▇▇▇▇, D.F.
ARTICLE THIRTY-TWO: The Parties attest that this Agreement was executed with
their full consent and was drawn up without Fraud, Error or Bad Faith on the
part of either one.
ARTICLE THIRTY-THREE: The Parties mutually agree that the terms of this
Agreement annul any other agreement which has been made to date verbally, or in
any other document, contract, agreement, letter of intent, or other document
signed by either Party.
ARTICLE THIRTY-FOUR: The contractual Parties herein declare that any amendment
made to this Agreement shall be made with the prior consent of the Parties
before two witnesses and shall be attached hereto and constitute a part of this
Agreement.
With regard to the interpretation and fulfillment of this Agreement, the parties
shall submit themselves to the jurisdiction of the Courts of the Federal
District of Mexico, and hereby renounce any other jurisdiction which might
apply, by reason of their present or future residence. The Parties subscribe
this Agreement on the seventeenth day of the month of December, 1996, before two
witnesses.
"STOCKHOLDERS" "DEPOSITOR"
(Signature) (Signature)
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▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ FOR "UNIMARK GROUP, INC."
TARRAGO ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
(Signature) (Signature)
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LIC. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ FOR "FRUTALAMO,S.C. DE C.V."
▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
TARRAGO
WITNESS WITNESS
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(Signature) (Signature)
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▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
BROHEZ, ENGINEER ▇▇▇▇▇
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