Exhibit 10.21
ADMINISTRATIVE SERVICES AGREEMENT ENTERED INTO BY AND BETWEEN DISTRIBUIDORA
VENUS, S.A. DE C.V., HEREINAFTER REFERRED TO AS, "VENUS", REPRESENTED BY
XXXXXXX XXXXX XXXXXXX AND DISTRIBUIDORA COMERCIAL JAFRA, S.A. DE C.V.,
HEREINAFTER REFERRED TO AS, "DCJ", REPRESENT BY XXXX XXXXXX XXXXXXXXX VALENCIA,
IN ACCORDANCE WITH THE FOLLOWING RECITALS, REPRESENTATIONS, WARRANTIES AND
CLAUSES:
RECITALS
A. VENUS has sold to DCJ all of the fixed assets that VENUS uses to
conduct its distribution business as such business is conducted by VENUS (the
"Business"), as further provided in an Asset Purchase Agreement, dated of even
date herewith.
B. VENUS desires to perform certain services for DCJ in order to enable
DCJ to operate the Business.
NOW, THEREFORE, VENUS and DCJ, intending to be legally bound, agree as
follows:
REPRESENTATIONS AND WARRANTIES
I. VENUS represents and warrants that:
(a) It is a company duly incorporated and validly existing pursuant to the
laws of the United Mexican States.
(b) Its representative, Xxxxxxx Xxxxx Xxxxxxx, is duly authorized to execute
and deliver this Agreement on its behalf, which authority has not been revoked,
limited or otherwise modified.
(c) It is duly registered in the Mexican federal taxpayers' registry.
(d) It has all the necessary power and authority (corporate and other) to
enter into this Agreement and to perform and comply with its obligations
hereunder and requires no corporate or other approval (governmental or other)
to enter into this Agreement and to perform its obligations hereunder.
(e) The execution and delivery of this Agreement and the performance of its
obligations hereunder does not and will not contravene or result in any breach
of (i) its estatutos sociales, (ii) any applicable Mexican law, regulation,
rule or any other legal provision or any judgment, order, arbitral award or
resolution of any kind, or (iii) any contractual provision or agreement of any
nature whatsoever to which VENUS or any of its properties is subject, or (iv)
any authorization,
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concession or any other governmental approval or resolution of any nature
binding upon it or any of its properties.
(f) This Agreement constitutes a legal, valid and binding obligation of VENUS,
enforceable against it in accordance with its terms.
(g) It desires to provide to DCJ the administrative services described in
Exhibit "A" hereto (hereinafter, the "Services") which are necessary for DCJ
to operate the Business, in the terms and conditions set forth herein.
II. DCJ represents and warrants that:
(a) It is a company duly incorporated and validly existing pursuant to the
laws of the United Mexican States.
(b) Its representative, Xxxx Xxxxxx Xxxxxxxxx Valencia, is duly authorized to
execute and deliver this Agreement on its behalf, which authority has not been
revoked, limited or otherwise modified.
(c) It is duly registered in the Mexican federal taxpayers' registry.
(d) It has all the necessary power and authority (corporate and other) to
enter into this Agreement and to perform and comply with its obligations
hereunder and requires no corporate or other approval (governmental or other)
to enter into this Agreement and to perform its obligations hereunder
(e) The execution and delivery of this Agreement and the performance of its
obligations hereunder does not and will not contravene or result in any breach
of (i) its estatutos sociales, (ii) any applicable Mexican law, regulation, rule
or any other legal provision or any judgment, order, arbitral award or
resolution of any kind, or (iii) any contractual provision or any agreement of
any nature whatsoever which DCJ or any of its properties is subject, or (iii)
any authorization, concession or any other governmental approval or resolution
of any nature binding upon it or any of its properties.
(f) This Agreement constitutes a legal, valid and binding obligation of DCJ,
enforceable against it in accordance with its terms.
(g) It desires to receive from VENUS the Services which are necessary for DCJ
to operate the Business, in the terms and conditions set forth herein.
By virtue of the recitals, representations and warranties set forth above,
the parties to this agreement agree to the following:
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CLAUSES
ONE. Services; Price.
VENUS hereby agrees to provide the Services to DCJ and DCJ herby agrees to
pay VENUS a monthly fee therefor equal to the cost for VENUS to provide such
Services (including a reasonable allocation of VENUS' general overhead charges),
plus a margin of 0.5% (the "Price") and the applicable Mexican value added tax,
payable on the 30th day of each calendar month.
The parties agree that the aforementioned monthly fee shall be reviewed on
a semi-annual basis. Any modification the aforementioned fee shall be agreed in
writing by the parties hereto and shall be appended hereto (it being
acknowledged that it will constitute a part of this Agreement).
The parties may add additional services to Exhibit "A" hereto, or eliminate
services therefrom, by means of the mutual execution of an amended Exhibit "A"
which shall include a section on the fee adjustment as a result of the amendment
thereto.
TWO. Invoices.
VENUS agrees to deliver to DCJ no later than the 10th day of each calendar
month, an invoice that complies with all Mexican legal requirements which shall
specify the amount payable for the prior calendar month.
In the event the fee is modified as a result of the semi-annual review
referred to above, VENUS shall issue a separate invoice for the necessary
adjustment within a period of 15 (fifteen) calendar days after the determination
of any such adjustment.
THREE. Obligations of the Parties.
VENUS shall be required:
a) To maintain qualified personnel in order to ensure the best quality in
the Services to be provided to DCJ hereunder.
b) To maintain its personnel duly updated of technological and management
innovations in order to ensure the best up-to-date quality in the Services to
be provided to DCJ hereunder.
DCJ shall be required to provide VENUS all the information and
documentation that VENUS may reasonably require in order to render the
Services.
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FOUR. No Labor Relationship.
The parties hereby acknowledge and accept that this Agreement and the
provision of the Services by VENUS shall not constitute a labor relationship,
agency or any other similar relationship between VENUS or the employees and
other personnel of VENUS with DCJ. Therefore, each of the parties hereto shall
be responsible for their own employees and personnel in accordance with
applicable law.
FIVE. Term.
This Agreement shall be in full force and effect for a period of one (1)
year after the date hereof and shall be renewable automatically for one year
period, unless any of the parties advises the other party with an anticipation
of at least ten (10) days that it does not wish to renew this Agreement.
SIX. Indemnification.
(a) From and after the date hereof, each of the parties hereto shall
indemnify and hold harmless each other and its respective officers, directors,
employees, agents, consultants, representatives and successors from and against
any and all damages, losses, costs and expenses incurred thereby arising out of
or resulting from: (i)any breach of any representation or warranty of the other
party contained in this Agreement; (ii) any failure by the other party to
preform any of its covenants or agreements contained in this Agreement, and
(iii) any failure to pay when due any tax payable by the other party in
connection with this Agreement and the Services rendered hereunder.
(b)Indemnification claims hereunder shall be made when reasonable and
properly documented losses, damages, costs and expenses (including without
limitation, attorney's fees and expenses) or liabilities are incurred. Any
indemnities payable under this Agreement shall be limited to the amount of
direct or indirect damages sustained by the indemnified party, net of any
insurance proceeds, favorable tax effects or other recovery actually received
by such Indemnified party but increased by any taxes arising out of any
indemnity payment.
(c) Any claims for damages hereunder may only be made (i) within a period
of one (1) year beginning as of the execution of this Agreement and (iii)
limited to the payment of an amount not exceeding the Price.
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SEVEN. Expenses.
Each party hereto shall bear its own costs and expenses in connection with
the execution and delivery of this Agreement and the transactions contemplated
herein, including without limitation legal, accounting and other professional
fees.
EIGHT. Taxes.
Each party will be responsible for the payment of the taxes that it is
required to pay in accordance with applicable law.
NINE. Notices.
All notices or other communications required or permitted to be given
hereunder shall be in writing and shall be delivered by hand or sent by telecopy
or sent, postage prepaid, by registered or certified mail, return receipt
requested, or reputable courier service and shall be deemed given when so
delivered by hand or telecopied, or if mailed, seven days after mailing (one
Business Day in the case of overnight courier service), as follows:
(i)if to DCJ:
Distribuidora Comercial Jafra, S.A. de C.V.
Blvd. Xxxxxx Xxxxx Xxxxxx 515
Col. Tlacopac
Mexico, D.F. 01040
If to VENUS:
Distribuidora Venus, S.A. de C.V.
Distribuidora Comercial Jafra, X.X. de C.V.
Blvd. Xxxxxx Xxxxx Xxxxxx 515
Col. Tlacopac
Mexico, D.F. 01040
TEN. Confidentiality.
VENUS agrees that any information, studies, production systems or any other
information related to the Services, including, by way of illustration and not
by way of limitation, trade, business and technical matters, confidential or
private information, business plans and
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technological secrets of DCJ and its affiliates or customers, shall be regarded
as privileged and confidential information and, therefore, shall refrain and
cause all persons related to it to refrain, from disclosing, disseminating or
revealing said information to any person different from employees, officers,
agents, consultants or other agents of VENUS.
ELEVEN. Interpretation; Headings; Schedules.
The headings contained in this Agreement or in any Exhibit hereto are for
reference purposes only and shall not affect in any manner the meaning or
interpretation thereof. All Exhibits attached hereto or referred to herein are
hereby incorporated by reference and are part of this Agreement as if set forth
herein.
TWELVE. Assignment.
This Agreement may not be assigned or otherwise transferred by the parties
hereto unless the parties hereto mutually agree in writing.
THIRTEEN. Amendments.
Any amendment to this agreement must be in writing and must be executed by the
attorney-in-fact of each of the parties; otherwise the amendment will be
invalid.
FOURTEEN. Entire Agreement.
This Agreement contains the entire agreement and understanding among the
parties hereto with respect to the subject matter hereof.
FIFTEEN. Governing law; Submission to Jurisdiction.
(a) The parties agree that this Agreement shall be governed by and
construed in accordance with the laws of the United Mexican States.
(b) In connection with any dispute or controversy regarding the
interpretation or application of this Agreement, each of the parties submit to
the jurisdiction of the competent courts of Mexico City, Federal District,
United Mexican States.
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IN WITNESS HEREOF, the parties hereto have executed this agreement as of the
20th day of the month of May, 2003.
DISTRIBUIDORA VENUS, S.A. DE C.V. DISTRIBUIDORA COMERCIAL
JAFRA, S.A. DE C.V.
/s/ Xxxxxxx Xxxxx Xxxxxxx /s/ Xxxx Zulerna Xxxxxxxxx Xxxxxxxx
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By: Xxxxxxx Xxxxx Xxxxxxx By: Xxxx Zulerna Xxxxxxxxx Xxxxxxxx
Title: Attorney-in-fact Title: Attorney-in-fact
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EXHIBIT "A"
SERVICES FROM VENUS TO DCJ
1.- Consulting, concealing, representation and mandate services in connection
with import, export and distribution transactions.
2.- Commercial agent, consignment, attorney-in-fact, commission and agency
services and in general any kind of intermediation or representation before
manufacturers, distributors, authorities and any other person or entity in
connection with the distribution of the products of DCJ.
3.- Consulting, counseling, legal administration, authorized representation for
the compliance of any legal requirement, regulation, official Mexican standard
or legal code applicable to the manufacture, import, export and distribution of
products.
