NOTE: THIS DOCUMENT IS AN ENGLISH-LANGUAGE SUMMARY OF AN ORIGINAL DOCUMENT IN
THE SPANISH LANGUAGE. SOME PROVISIONS HAVE BEEN COMPLETELY TRANSLATED; OTHERS
HAVE BEEN ABRIDGED TO SUMMARIZE THE CONTENT WITHOUT PROVIDING A VERBATIM
TRANSLATION.
AGREEMENT CONCERNING THE EXERCISE OF THE RIGHT OF WITHDRAWAL
OF ALL CONTRIBUTIONS
MADE TO
AGRICOLA ▇▇▇▇▇, ▇.▇. DE C.V.
ENTERED INTO BY THE SHAREHOLDERS
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ DE LOS ANGELES ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ DE LOS ANGELES ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ DEL ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
[AND] THE COMPANY
AGRICOLA ▇▇▇▇▇, ▇.▇. DE C.V.
WITH THE PARTICIPATION OF
DNAP HOLDING CORPORATION
ON AUGUST 29, 1997
AGREEMENT CONCERNING THE EXERCISE OF THE RIGHT OF WITHDRAWAL OF ALL
CONTRIBUTIONS MADE TO AGRICOLA ▇▇▇▇▇, ▇.▇. DE C.V. ("ABSA") ENTERED INTO BY
MESSRS. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ AND ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, IN
THEIR OWN RIGHT, AND WHO IN TURN APPEAR IN THE NAME AND ON BEHALF OF ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ DE LOS ANGELES ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ DE LOS
ANGELES ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ DEL ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, AND ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, (COLLECTIVELY THE "SHAREHOLDERS"), AND ABSA, REPRESENTED BY
MESSRS. FRANCISCO ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, WITH THE
PARTICIPATION OF DNAP HOLDING CORPORATION ("DNAP"), REPRESENTED BY MESSRS.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, IN ACCORDANCE WITH THE
FOLLOWING REPRESENTATIONS AND SECTIONS:
REPRESENTATIONS
1. THE SHAREHOLDERS REPRESENT UNDER OATH:
1.1 That all of them are natural persons, of majority age and Mexican
nationality, and in full enjoyment of their faculties, fully capable of entering
into this Agreement, and with respect to those of whom are married: (i) they are
married under a separation of property system, or (ii) the property that is the
subject matter of this Agreement does not form part of the respective community
property, or (iii) judicial authorization has been obtained as required in
accordance with the documents attached, or (iv) the spouse is present at the
execution of this Agreement in evidence of his or her approval. For their part,
Messrs. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ agree
that they are also entering into this Agreement in the name of, and on behalf
of, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ DE LOS ANGELES ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ DE
LOS ANGELES ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, with
their agency evidenced by public instrument no. 5,606 ... [standard notarial
registration information provided], which is attached to this Agreement as Annex
P, and which grants to them general powers of attorney for acts of litigation,
collections and ownership, and which have not been revoked, modified or limited
in any way. Furthermore, ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ appears in parental
representation of his minor child, ▇▇▇▇▇▇ DEL ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇.
2
1.2 That they are the sole and lawful owners of 5,515 Series A shares and
25,524 Series T shares, which total 31,039 shares representing 49.91% of the
capital stock subscribed for and paid in of ABSA, all of which are
representative of the variable portion of ABSA's capital stock, each of which
have a par value of pesos $1,000, and which are completely subscribed for, paid
in and non-assessable, as is evident from ABSA's share transfer book, and of
which they have complete title and possession, free and clear of any encumbrance
or lien, lawsuit, litigation or claim whatsoever, represented by the
certificates which correspond to the current issuances identified, with respect
to the Series A shares, as the issuances of March 23, 1993 and January 31, 1995,
and with respect to the Series T shares, as the issuance of February 22, 1995,
with the exception of certificate number 001, which represents 2,280 Series T
shares owned by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ and which was issued on September
17, 1996, and with all such share certificates having coupons starting
consecutively from number one, and which are described below, along with the
shares that correspond to each one of the Shareholders (the "Shares"):
----------------------------------------------------------------------------------
SHAREHOLDERS SERIES SERIES SHAREHOLDER CERTIFICATES
A T SUBTOTAL
SHARES SHARES
----------------------------------------------------------------------------------
1. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ 2,757 2,290 5,047
----------------------------------------------------------------------------------
2. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ 2,758 3,276 6,034
----------------------------------------------------------------------------------
3. ▇▇▇▇▇ DE LOS ANGELES ▇▇▇▇▇ ▇▇▇▇▇▇▇ 0 740 740
----------------------------------------------------------------------------------
4. ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇ 1,332 1,332
----------------------------------------------------------------------------------
5. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇ 2,280 2,280
----------------------------------------------------------------------------------
6. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ 0 2,059 2,059
----------------------------------------------------------------------------------
7. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 0 2,069 2,069
----------------------------------------------------------------------------------
8. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ 0 2,017 2,017
----------------------------------------------------------------------------------
9. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ 0 1,868 1,868
----------------------------------------------------------------------------------
10. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 0 1,851 1,851
----------------------------------------------------------------------------------
11. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇ 1,600 1,600
----------------------------------------------------------------------------------
12. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ 0 1,280 1,280
----------------------------------------------------------------------------------
13. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ 0 971 971
----------------------------------------------------------------------------------
14. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ 0 740 740
----------------------------------------------------------------------------------
15. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 0 400 400
----------------------------------------------------------------------------------
16. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 0 400 400
----------------------------------------------------------------------------------
17. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ RITZ 0 176 176
----------------------------------------------------------------------------------
18. ▇▇▇▇▇▇ DEL ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ AND 0 130 130
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------------------------------------------------
19. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 0 45 45
----------------------------------------------------------------------------------
TOTAL 5,515 25,524 31,039
----------------------------------------------------------------------------------
3
1.3. That they acquired the Shares free of all encumbrances and limitations of
any nature through various contributions in cash and in kind duly and directly
made to ABSA, and for which they timely obtained all necessary corporate,
contractual and governmental authorizations, and for such purpose, they made all
applicable filings, including those relating to the National Agrarian Registry.
1.4. That their address and Federal Tax Identification Numbers are as follows:
-----------------------------------------------------------------------------------------------------------------------
SHAREHOLDERS ADDRESS TAX I.D.
NUMBER
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1. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Boulevard Culiacan 2580-7, Col. Los Alamos, Culiacan, Sinaloa
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2. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Boulevard Culiacan 2580-7, Col. Los Alamos, Culiacan, Sinaloa
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3. ▇▇▇▇▇ DE LOS ANGELES ▇▇▇▇▇ ▇▇▇▇▇▇▇ Boulevard Culiacan 2580-7, Col. Los Alamos, Culiacan, Sinaloa
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4. ▇▇▇▇▇ DE LOS ANGELES ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Boulevard Culiacan 2580-7, Col. Los Alamos, Culiacan, Sinaloa
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5. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Boulevard Culiacan 2580-7, Col. Los Alamos, Culiacan, Sinaloa
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6. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Boulevard Culiacan 2580-7, Col. Los Alamos, Culiacan, Sinaloa
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7. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇-▇, Col. Los Alamos, Culiacan, Sinaloa
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8. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇-▇, Col. Los Alamos, Culiacan, Sinaloa
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9. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇-▇, Col. Los Alamos, Culiacan, Sinaloa
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10. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Boulevard Culiacan 2580-7, Col. Los Alamos, Culiacan, Sinaloa
-----------------------------------------------------------------------------------------------------------------------
11. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Boulevard Culiacan 2580-7, Col. Los Alamos, Culiacan, Sinaloa
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12. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Boulevard Culiacan 2580-7, Col. Los Alamos, Culiacan, Sinaloa
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13. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇-▇, Col. Los Alamos, Culiacan, Sinaloa
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14. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Boulevard Culiacan 2580-7, Col. Los Alamos, Culiacan, Sinaloa
-----------------------------------------------------------------------------------------------------------------------
15. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Boulevard Culiacan 2580-7, Col. Los Alamos, Culiacan, Sinaloa
-----------------------------------------------------------------------------------------------------------------------
16. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Boulevard Culiacan 2580-7, Col. Los Alamos, Culiacan, Sinaloa
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17. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ RITZ Boulevard Culiacan 2580-7, Col. Los Alamos, Culiacan, Sinaloa
-----------------------------------------------------------------------------------------------------------------------
18. ▇▇▇▇▇▇ DEL ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Boulevard Culiacan 2580-7, Col. Los Alamos, Culiacan, Sinaloa
-----------------------------------------------------------------------------------------------------------------------
19. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Boulevard Culiacan 2580-7, Col. Los Alamos, Culiacan, Sinaloa
-----------------------------------------------------------------------------------------------------------------------
20. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Boulevard Culiacan 2580-7, Col. Los Alamos, Culiacan, Sinaloa
-----------------------------------------------------------------------------------------------------------------------
1.5 That except for those agreements listed on Annex A, no other contract or
agreement, whether verbal or written, has been entered into with ABSA, whether
directly or indirectly, through an intermediary or company, association, trust
or other entity whatsoever in which any interest or participation is held; that
the agreements listed on Annex A have been entered into on
4
commercial terms and that, for each agreement, ABSA may terminate it at any
time without liability with the providing of 15 days' notice; that ABSA is in
full compliance with such agreements and the agreements listed on Annex A
expire on the dates listed therein without any payment other than as is
listed on Annex A.
1.6 That except as otherwise expressly stated in this Agreement, on the
Closing Date as defined below, ABSA and/or its subsidiaries and/or its
affiliates will have no outstanding obligations owed to the Shareholders
derived from any relationship they have had or have with ABSA, whether of a
commercial, stockholding or labor nature in their capacity as directors or of
any other type.
1.7 That the real property that on this date appears under the name of ABSA
and its subsidiaries, a summary of which is set forth on Annex B, and except
as otherwise stated on Annex F, is free and clear of all encumbrances
[list of specific types of encumbrances is omitted], is current in the
payment of taxes [list of specific types of taxes is omitted], and the
property and its exploitation is in compliance with applicable law
[list of specific types of laws is omitted], duly recorded in the Public
Registry of Property and in the National Agrarian Registry.
1.8 That with respect to the audited financial statements dated December
31, 1996 and the unaudited financial statements dated March 31 and June 30,
1997 of ABSA and its subsidiaries, which are attached as Annexes C, D, and E,
and are incorporated by this reference (the "Financial Statements"): (i)
accurately represent the financial and accounting position, and results of
operation of ABSA and its subsidiaries on the date of its issuance, (ii) were
prepared in accordance with generally accepted accounting practices in the
United Mexican States, consistently applied....[Additional, standard accounting
representations are made.]
1.9 That ABSA, its subsidiaries and its assets are not encumbered in any
way, that ABSA has performed, is performing and is current on all of its
obligations of an administrative nature, whether federal, state or municipal,
and it has all registrations (including with the National Agrarian Registry),
permits and authorizations necessary for its operations, including those of
an agrarian, health, foreign investment and environmental nature, among
others, and has good title to its property, which is in good condition, with
all taxes having been paid, whether of a federal, state or municipal nature.
1.10 That ABSA and its subsidiaries have the necessary insurance with
authorized insurance companies, for risks and in adequate amounts, in
accordance with industry standards in those industries in which it is engaged
in activities.
1.11 That (i) ABSA and its subsidiaries are current on all of their tax
obligations, whether federal, state or municipal, (ii) all Tax Returns (as
defined below) of ABSA and its subsidiaries that have been required to be
filed, have been timely filed and in all relevant aspects have contained
complete, exact and accurate information, (iii) all Taxes that have been
accrued and that are owing, or those taxes that the tax authorities have
claimed to have accrued and have claimed to be owing by ABSA and its
subsidiaries, since their formation and up to and including
5
the date of this Agreement, have been paid or an accounting entry has been
made for it.... [Additional standard tax representations are made.]
1.12 That ABSA and its subsidiaries are current in the payment of their
labor obligations, including but not limited to those related to Social
Security, profit sharing, wages, benefits, collective labor agreements,
individual employment agreements, and in general any other labor obligations,
except for those actually in dispute and for which adequate provisions have
been made in their accounting.
1.13 That (i) there exists no trial, litigation, complaint, claim or
administrative, arbitration, mediation or any other type of proceeding in
which ABSA or its subsidiaries are a party or in which their assets are
involved, and that there is no possibility that any such proceeding will be
commenced, except for those proceedings listed on Annex F, and (ii) ABSA and
its subsidiaries have no knowledge of any legal or administrative claim that
could affect the validity of this Agreement or of the resolutions adopted by
the extraordinary general shareholders' meeting of ABSA that took place today.
1.14 That ABSA or its subsidiaries have not guaranteed in any manner
obligations of third parties and that the only financial commitments that
ABSA and its subsidiaries have as of the date of this Agreement are those
listed on Annex G, which is incorporated by this reference, and in any case
is duly reflected in the Financial Statements referred to in Representation
1.8 above.
1.15 That except with respect to the companies and associations listed on
Annex H, ABSA holds no direct or indirect interest in any other company or
association.
1.16 That all trademarks, notices, trade names, logotypes, and in general,
all intellectual property that ABSA and its subsidiaries use in their
operations are their legitimate and exclusive property, or have been duly
licensed and are used in accordance with the respective legal provisions, and
as applicable, with the authorizations, licenses, and permits that for such
purposes have been obtained or granted.
1.17 That they have been in charge of the administration of ABSA and its
subsidiaries and that they have managed ABSA and its subsidiaries in
accordance with the highest and most professional business practices used in
similar markets and that ABSA is in complete compliance with all agreements
to which it is a party, which agreements are listed on Annex I.
1.18 That there exist no shares of ABSA other than those listed in
Representation 2.3 of this Agreement, nor do there exist any other type of
securities, contracts or legal acts that would grant any type of right to
participate in the capital stock of ABSA or its subsidiaries, and that the
only amendments to the articles and bylaws, and increase to the capital stock
of ABSA, are those described in Representation 2.2.
1.19 That each and every activity that ABSA and its subsidiaries realize,
including but not limited to the planting, harvesting, distribution,
exportation and marketing of agricultural
6
products, are carried out in accordance with applicable law, and for such
purposes, ABSA and its subsidiaries have each and every necessary
authorization.
1.20 That the exercise of the right of withdrawal, the execution of this
Agreement, and the resolutions adopted in the extraordinary general
shareholders meeting of ABSA held today: (i) do not violate any contractual
obligation assumed by the Shareholders; (ii) have authorization from all
those persons or nongovernmental entities, as well as the approval of all
government entities and agencies, as required; (iii) do not violate, breach
or in any other manner conflict with applicable tax and legal provisions,
especially those related to: (a) the bylaws of ABSA or its subsidiaries, (b)
any contract or agreement in which ABSA or one of its subsidiaries is a
party, (c) any arbitration award, judicial ruling or administrative ruling of
which ABSA, its subsidiaries, or their assets, or the Shareholders are a
part, (d) any governmental license, permit or authorization granted to ABSA
or its subsidiaries, or (e) any law that regulates the activities or assets
of ABSA, its subsidiaries or of the Shareholders.
1.21 That (i) they have notified ABSA in a legal and non-revocable manner of
their exercise of the right of withdrawal of all of the contributions
represented by the Shares, (ii) in the extraordinary general shareholders
meeting of ABSA held today (the "Extraordinary General Meeting"), they
expressed their complete consent to the amount determined for the withdrawal
of their contributions, which amount is subject to adjustments as applicable,
and (iii) in the Extraordinary General Meeting they also expressed their
unanimous approval to submit the exercise of such withdrawal right to the
terms and conditions contemplated in this Agreement.
2. THE REPRESENTATIVES OF ABSA REPRESENT:
2.1 That ABSA is a company duly organized and existing in accordance with
the laws of the United Mexican States, as appears in Public Instrument No.
694, dated February 10, 1993. [Additional, standard notarial registration
information is provided.]
2.2 That the only amendments that have been made to the articles of
incorporation and bylaws, as well as increases in the capital stock, are
contained in the following instruments: (a) Public Instrument No. 803, dated
March 15, 1993, certified by Mr. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, Notary Public no.
153 for Property and Commerce in the City of Culiacan, Sinaloa, under number
150, Book 203, Second Auxiliary Section of Commerce;...[additional instruments
are cited.]
2.3 That the capital stock of ABSA completely subscribed for and paid in on
the date of this Agreement is the amount of pesos $62,183,000.00, which is
represented by 62,183 common shares having a par value of pesos $1,000 each,
of which 36,609 shares correspond to Series A, 50 shares correspond to Series
C representing the fixed portion of the capital stock without a right of
withdrawal, and 25,524 shares correspond to Series T shares, all of which
have Definitive Share Certificates issued on February 10, 1993 for the Series
C shares, March 23, 1993 and January 23, 1995 for the Series A shares, and
February 22 for the Series T shares, all having coupons starting with the
number one; and that such shares are the only ones authorized, issued and
outstanding of ABSA, and therefore no other shares representing the capital
stock of
7
ABSA exist, nor do any other types of securities, contracts or legal acts
exist that grant any type of right to participate in the capital stock of
ABSA.
2.4 That, in accordance with the provisions of Article 220 of the General
Business Corporation Law (LEY GENERAL DE SOCIEDADES MERCANTILES), ABSA has
been legally notified of the exercise of the right of withdrawal of the
totality of the contributions made by the Shareholders, which are represented
by the Shares; and that the amount, and the terms and the conditions of the
withdrawal, have been approved by the Extraordinary General Meeting, subject
to the execution of this Agreement.
2.5 That their principal is present for the execution of this Agreement to
express its knowledge of and agreement with the provisions contemplated
herein and, for such purpose, to carry out the appropriate resolutions
adopted in the Extraordinary General Meeting.
2.6 That they have sufficient authority to enter into this Agreement in the
name and on the behalf of ABSA, and that such authority has not been limited
or restricted in any manner whatsoever.
3. THE REPRESENTATIVES OF DNAP REPRESENT:
3.1 That it is a company duly organized and existing in accordance with the
laws of the State of Delaware, United States of America.
3.2 That DNAP is the majority shareholder of ABSA and that the
Extraordinary General Meeting approved carrying out the complete withdrawal
of the contributions made by the Shareholders, in accordance with the terms
and conditions that the Extraordinary General Meeting agreed to, subject to
the execution of this Agreement.
3.3 That they have sufficient authority to enter into this Agreement in the
name and on the behalf of DNAP, and that such authority has not been limited
or restricted in any manner whatsoever.
3.4 That, in accordance with the unanimous approval today of the
Extraordinary General Meeting, and based on the representations of the
Shareholders, and subject to the terms and conditions of this Agreement, it
appears at the execution of the Agreement to express its consent with the
Agreement.
4. MESSRS. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ AND ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇:
That separate from being part of the group of Shareholders, they also express
their agreement to guarantee, jointly and severally, and without limitation,
each and every one of the obligations that the Shareholders assume by the
execution of this Agreement, and therefore in such capacity they shall be
collectively identified as the "Guarantors".
8
5. THE SHAREHOLDERS, DNAP AND ABSA REPRESENT:
That they mutually recognize each others legal existence and capacity to
enter into this Agreement, as a result of which they make the following:
SECTIONS
SECTION 1. Subject to the performance of the conditions stated in Section 5
herein, ABSA shall pay to the Shareholders exercising their right of
withdrawal, with respect to the contributions they have made to ABSA and
which are represented by the totality of the Shares, the amount agreed to in
the Extraordinary General Meeting, and for such purpose the Shareholders
shall turn over to ABSA, free and clear of all encumbrances, the certificates
that represent the Shares, and which certificates have attached all of the
coupons in effect as of the Closing Date, as defined below.
SECTION 2. The amount that ABSA shall pay to the Shareholders, in accordance
with the resolutions adopted in the Extraordinary General Meeting and based
on the representations made in this Agreement, all of which are incorporated
by this reference, is the amount of US$10,385,270.61 or US$334.5878 per share.
All amounts that are stated in this Agreement in United States Dollars
("Dollars"), shall be paid in the United Mexican States in Dollars or their
equivalent in Mexican pesos on the date that the payment is made.
SECTION 3. The payment of the amount stated in the immediately preceding
Section shall be made in the following manner, without prejudice to that
stated in Section 13 below:
3.1 The amount of US$6,433,270.61 on the Closing Date, as defined below,
shall be paid against the delivery of (a) the certificates representing the
shares, in accordance with Section 1; (b) receipts meeting tax and legal
requirements; (c) the broadest releases allowed by law with respect to the
receipt of the amount and that establishes that, as of such date, ABSA and/or
its subsidiaries and/or its affiliates owe no debt whatsoever to the
Shareholders for any reason, except as expressly stated in this Agreement or
in the Extraordinary General Meeting; and (d) the agreements terminating the
Agreements listed on Annex A, in accordance with the terms and conditions of
Annex M; and
3.2 The remaining amount of US$3,952,000.00 is to be disbursed in three
annual payments, the first and second of which are to be in the amount of
US$1,317,000.00, and the third and final in the amount of US$1,318,000.00,
which will be made on the first, second and third anniversary of the Closing
Date against the delivery of receipts meeting tax and legal requirements.
The unpaid balance of these payments shall be documented by promissory notes
which will be issued by ABSA on the Closing Date in favor of the common
representative of the Shareholders as designated by the Shareholders in
Section 8 of this Agreement, and which will accrue interest at the annual
rate of 10% paid quarterly when due.
9
SECTION 4. Notwithstanding the provisions of Section 2 and without prejudice
to Section 3, the parties agree that the amount provided in Section 2 may be
adjusted as follows:
4.1 The following amounts shall be distributed among the Shareholders and
DNAP in accordance with their actual stockholdings in ABSA, that is 49.996%
and 50.004% respectively, which may result during the three years following
the Closing Date:
4.1.1. The net recovery in the event that ABSA collects amounts owing
from accounts receivables that have been discounted in the audited, December
31, 1996 Financial Statements, and those that have been provided for in the
financial statements of DNAP, as listed on Annex J;
4.1.2. The accounts receivables and advances to suppliers made prior to
June 30, 1997 that become uncollectible, as listed on Schedule E.
4.1.3. The liabilities not listed on the June 30, 1997 Financial
Statements which cause a charge to be made against results of operations.
4.1.4. The asset entries that are included in the June 30, 1997 General
Balance Sheet, which according to U.S. G.A.A.P., should be charged to the
results of operations of the corresponding period.
4.2 The unrecorded liabilities, to the extent that there exists an asset
not registered in the same amount for which they were paid, shall be deemed
an additional debt and the amount of the adjustment shall be calculated in
accordance with the following formula:
[LIABILITYAMOUNT+LIABILITYAMOUNT(.9)+LIABILITYAMOUNT(.9)(.9)]x49.56%
Adjustment Price = --------------------------------------------------------------------
5
The amounts referred to in the above paragraphs which may be paid among the
parties, as well as with those liabilities determined as applicable in
accordance with Section 3, shall be calculated based on the corresponding,
fiscal-year, audited financial statements in accordance with U.S. G.A.A.P.,
as if on the respective date DNAP and the Shareholders continued being
shareholders of ABSA in the proportion specified above, that is, the impact
that the above amounts will have on the financial statements, along with the
participation that such shareholders will have in the net result of
operations, taking into account among other things, expenses, costs, legal
fees involved in recovering the accounts receivables, whether or not it is
successful, and shall be distributed once such financial statements have been
approved by the respective Ordinary General Shareholders' Meeting of ABSA, in
accordance with Article 181 of the General Corporation Law. Accordingly: (i)
when there exists a balance in favor of the Shareholders, the amount to be
paid shall be the equivalent of that which would have corresponded to them
out of the net distributable profits of ABSA for having maintained their
stockholding participation in ABSA in the above-mentioned proportion; and
(ii) when the net amount of such adjustments results in a negative balance,
such amount shall be paid by the Shareholders or deducted by ABSA from the
final reimbursement payment mentioned in
10
Section 3.2 above (or if insufficient, from the penultimate payment owed, and
so on), and should the amount owed still be outstanding, DNAP shall have the
right to deduct or offset it from any amount it owes the Guarantors, with the
understanding that the outstanding amounts of the respective promissory note
and/or the payments that DNAP is required to make to the Guarantors shall be
adjusted as of the date when the respective financial statements are duly
approved. In the event that the Shareholders do not agree with the amount
determined, the parties involved in the resolution of such disputes shall
submit to the procedure provided for in Annex N, and by their signing of this
Agreement, the Shareholders, ABSA and DNAP expressly waive any other
proceeding to which they may have a right.
SECTION 5. The payment of the amounts contemplated by this Agreement in
favor of the Shareholders is conditioned on the following, which must be
performed on or prior to October 31, 1997, with the understanding that ABSA
shall have the right to waive the performance of any of the conditions, with
the exception of the conditions found in paragraphs 5.2, 5.3 and 5.6:
5.1 The contents of the Annexes to this Agreement are duly approved by
both parties;
5.2 Third party and governmental authorizations, as required, are obtained;
5.3 This Agreement is certified by a notary public, in accordance with
Section 14.
5.4 That the rights in the warehouse located in the Mexico City Supply
Center, which is owned by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, are transferred
gratuitously to the assignee designated by ABSA;
5.5 That all amounts that the Shareholders, whether individually or
collectively, owe ABSA and/or DNAP and/or their subsidiaries and affiliates
are paid in their entirety, including those specified on Annex O.
5.6 New Series T shares of ABSA are issued and subscribed to that cover
the totality of the agricultural lands described on Annex B; and
5.7 On the Closing Date the Shareholders ratify in writing the accuracy on
such date of each and every one of the representations they have made in this
Agreement, with the understanding that, if on such date, they have not
obtained each and every registration listed in Representation 1.9, the
Guarantors shall be liable for the satisfactory obtaining of them in
accordance with Section Thirteen of this Agreement.
Within a period of 5 business days, counted from the date of performance of
the above-mentioned conditions, as proved by the parties, ABSA shall
liquidate the rights of withdrawal of the Shares exercised by the
Shareholders, in accordance with the provisions of paragraph 3.1 of Section
3, at the place that ABSA determines for such purposes. This date shall be
deemed the "Closing Date."
11
SECTION 6. All taxes that are accrued as the result of the exercise of the
withdrawal right by the Shareholders in accordance with the Income Tax Law,
or by virtue of any other law, shall be for the exclusive account of the
Shareholders, and for which ABSA shall withhold from the payment any
applicable amounts and the Shareholders agree to hold ABSA and its
shareholders harmless for any payment or proceeding related to such
withholding.
Each of the parties shall be responsible for the expenses and fees they have
incurred or will incur in the negotiation, entering into, execution and
formalization of this Agreement.
SECTION 7. DNAP participates in the execution of this Agreement for the
purpose of expressing its knowledge of and agreement with the terms of this
Agreement, and therefore, agrees to assist in the performance of the
provisions contained herein, and to abide by the obligations imposed on it in
the Agreement and not to take any action that would be contrary to such
provisions.
SECTION 8. The Shareholders appoint ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ as
their representative for purposes of this Agreement, including for the
receiving of notices and of the payments contemplated herein. Any change in
the designation of the representative shall be communicated to ABSA in
writing and signed by all of the Shareholders.
In any event, ABSA at any time may require that the Shareholders' designation
of the common representative, as well as his revocation or limitation of his
rights, be certified in the presence of a notary public.
SECTION 9. In their capacity as shareholders or attorneys-in-fact and/or
providers of services to ABSA, the Shareholders agree that they have
knowledge of confidential information of ABSA, as well as of its shareholders
and of its other subsidiaries and affiliates, and that any undue disclosure
or use of the information could have serious consequences for ABSA, DNAP, as
well as for their shareholders and/or subsidiaries and affiliates, as a
result of which the Shareholders agree to keep strictly confidential, and not
to use directly or indirectly, any oral or written information, as well as
information contained in electronic formats, which belongs to ABSA, DNAP,
their shareholders and/or subsidiaries....[Additional, standard confidentiality
provisions are made, including provisions for prior notice to and approval by
ABSA and DNAP before disclosure of confidential information.]
Furthermore, the Shareholders agree not to use any trademarks, notices,
logotypes, corporate names or trade names used, licensed or which are the
property of ABSA, DNAP and/or its subsidiaries and/or affiliates.
[Additional, standard trademark provisions are included.]
The breach of the provisions contained in this Section shall give rise to the
respective damages and loss of anticipated income, without prejudice to any
applicable criminal penalties or the exercise of any other rights the injured
party may have.
SECTION 10. The Shareholders agree (directly and/or indirectly through their
relatives by affinity or consanguinity and/or through the conduct of business
entities in which they hold an
12
interest directly or indirectly) not to compete in the United Mexican States
or abroad with ABSA, DNAP, or their subsidiaries and/or affiliates in any
manner, whether directly or indirectly, either individually or through ...
any business entity ... which is engaged in equal or substantially similar
agricultural activities as ABSA, DNAP and the United States company
International Produce Holding Company, Inc., and/or its subsidiaries, with
the exception of the production and marketing that they directly perform of
agricultural products that have been grown in greenhouses, for a period of
three years from the Closing Date.
Similarly, the Shareholders agree with ABSA and DNAP not to hire directly or
indirectly the services of any employee of ABSA and/or its subsidiaries
and/or affiliates for a period of three years from the Closing Date, without
the prior written consent of ABSA and DNAP.
SECTION 11. ABSA and Messrs. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ agree that Messrs. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ and
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ shall provide services to ABSA and/or its
subsidiaries and/or its affiliates for an initial period of three months,
counted from the Closing Date, in accordance with the professional services
agreement attached to this Agreement as Annex K.
In any event, if one or more Shareholders continues managing ABSA or its
subsidiaries up to the Closing Date, such management shall be carried out
under the highest and most professional standards of administration, and such
Shareholders agree not to perform any act of ownership, grant any power of
attorney, whether general or special, nor incur any new liabilities or
guarantee any obligations, whether such obligation is its own or of a third
party, or in general, take any act outside of the ordinary course of
business, or through any act or omission harm in any way the property and
rights of ABSA and of its subsidiaries and/or affiliates, without the prior
written consent of DNAP. [Additional, standard property conservation and power
of attorney provisions are included in the original, including reference to a
list of all current powers of attorney of ABSA found on Annex L.]
SECTION 12. All notices made by the parties with respect to this Agreement
shall be in writing and shall be delivered to the address of the respective
party as follows, until a new address is provided by the respective party:
THE SHAREHOLDERS ABSA DNAP
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇. de C.V. DNAP HOLDING CORPORATION
Colonia Los Alamos Carretera a El Dorado, Km. 9 6701 San Pablo Avenue
Culiacan, Sinaloa Culiacan, Sinaloa 80150 ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Mexico Mexico U.S.A.
Notices shall be deemed to have legal effect as of the day they are delivered
to the respective party.
SECTION 13. Independent of the provisions of Section 4 of this Agreement,
the Shareholders warrant that they have good title to the Shares and agree to
respond and remedy the title in the event a third party claims a greater
right, and therefore, in accordance with this Agreement and applicable law,
the Shareholders agree jointly and severally, and without limitation, to
13
hold ABSA and DNAP harmless from all liability, limitation of ownership,
contingency of any kind, whether of a civil, commercial, tax, criminal,
agrarian, labor, or administrative nature, including from those liabilities
that originate by virtue of the exercise of their right of withdrawal, from
the resolutions derived from such right that are adopted by the Extraordinary
General Meeting and from the subscription and execution of this Agreement, as
well as from all acts taken and events that occur prior to the Closing Date,
which in some manner cause any type of damage or loss of income to ABSA
and/or DNAP and which has not been expressly disclosed in this Agreement or
in the Annexes, or that has been partially, erroneously or falsely disclosed.
With respect to the real property listed on Annex B and notwithstanding that
the Shareholders have disclosed that some of the real property is subject to
various types of agrarian proceedings and legal actions, the Shareholders
state their obligation, such that each and every one of them complies
completely and to the entire satisfaction of ABSA and DNAP, no later than 60
days prior to the date that ABSA is required to make the final payment
referred to in Section 3.2 above (the "Deadline") with each and every one of
the representations set forth in Representation 1.7, which is incorporated by
this reference, and for which they shall be obligated to indemnify ABSA
and/or DNAP for any and all damage and loss of anticipated income that they
cause ABSA and/or DNAP to suffer in the event that ABSA is legally and
permanently divested by court order of any of the real property listed on
Annex B or does not comply with the above-mentioned representations in the
judgment of ABSA and DNAP, and the Shareholders at their sole cost and
expense shall take all legal steps and conduct all legal actions and
proceedings necessary to bring the real property into compliance with the
representations set forth in Representation 1.7, and should ABSA and/or DNAP
require it, the Shareholders shall grant to them the powers necessary for
them to appear in the respective legal actions and proceedings. Similarly
and once any of such real property is found encumbered at the moment of its
contribution to ABSA, the Shareholders ratify and recognize that ABSA, in
exercise of its lawful rights, may file any and all legal actions it deems
pertinent to safeguard the rights granted to it by applicable law. It should
be pointed out that the loss of anticipated income referred to in this
paragraph and the following paragraph, separate from the payment of all
applicable damages, shall be deemed to be the equivalent of 10 percent of the
sale of the immediately preceding agricultural season that corresponds to the
respective real property.
The procedure that shall be followed to carry out the adjustments to the
reimbursements made to the Shareholders, or for the payment of damages and
loss of anticipated income owed to ABSA and/or DNAP, is set forth on Annex N,
with the exception that, if on the Deadline, the Shareholders become liable
for not having resolved in a satisfactory and permanent manner the legal
status of the real property described in Annex B in accordance with the
above-cited Representation 1.7, and ABSA and DNAP decide that it is in their
best interest to relieve the Shareholders of such obligation in a writing
duly signed by their properly empowered legal representatives, the
Shareholders may elect to continue to carry out the legal actions necessary
to cure the breach, in which case they shall obtain a bond from a bonding
company approved by ABSA, in the applicable amount and on terms and
conditions as instructed, for an additional period of two years, after which
the guaranteed amount, or the applicable amounts
14
owed, shall be paid. The above is without prejudice to the payment by the
Shareholders to ABSA and/or DNAP of the damages and loss of anticipated
income owed prior to the Deadline, in accordance with Annex N.
Accordingly, if in accordance with the preceding paragraph, the Shareholders
elect to cure the breach and the Shareholders fail to so cure the breach in
accordance with the provisions set forth above within the above-mentioned,
additional two-year period, ABSA and DNAP shall then have the option of
relieving the Shareholders of such obligation, in a writing signed by their
duly empowered legal representatives, and therefore shall become entitled to
the bond granted to them, or instead they may elect to notify the
Shareholders of their decision to transfer to the Shareholders, without any
liability whatsoever, title to the respective real property or properties,
along with the resulting reimbursement. In such an event, the Shareholders
or the person or persons that they designate, shall be obligated to acquire
from ABSA the respective real property or properties through the payment of a
single, lump sum amount, which shall be equal to the market value of such
property on such date and which shall be determined by an independent
appraiser, designated by agreement of the parties, with the understanding
that if the parties cannot agree on an independent appraiser, then the
independent appraiser will be designated by the independent appraisers that
each party appoints, and the valuation of the independent appraiser shall be
definitive and unappealable for the parties. All expenses and fees incurred
in such transaction, including those related to the appraisers appointed,
shall be paid within 45 days of the date when the appraiser determines them,
and which shall be paid in equal parts by the parties, with any taxes paid by
the party who legally accrues them.
For their part, Messrs. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, in their capacity as
Guarantors in the execution of this Agreement, agree to guarantee jointly and
severally, and without limitation, the performance of each and every one of
the obligations of the Shareholders in accordance with this Agreement and its
respective annexes, especially the performance of those obligations related
to those that the Guarantors have assumed or ratified pursuant to the
provisions of this Section, and for which they express their agreement such
that any amount owed by the Shareholders to DNAP and/or ABSA which is not
paid off in a timely manner or in the correct manner, shall be deducted from
any amount due the Guarantors by DNAP and/or ABSA under any other legal
instrument, whether executed within Mexico or abroad; the foregoing is
without prejudice to ABSA's express right to deduct such amounts from any
payment that, in accordance with Sections 2, 3 and 4, is required to be made
to the Shareholders, and is without prejudice to the exercise of all other
rights that DNAP and/or ABSA may exercise against the Shareholders and/or the
Guarantors.
SECTION 14. The parties agree to have this Agreement certified by a notary
public chosen by ABSA within 15 days following its execution, with the
understanding that the expense related to such certification shall be borne
by ABSA.
SECTION 15. The parties agree that the agreements adopted by the
Extraordinary General Meeting and by this Agreement constitute the entire
agreement of the parties with respect to
15
the exercise of the right of withdrawal on the part of the Shareholders in
relation to the Shares, and therefore, any agreement or communication made
prior to and not contemplated in the minutes of the Extraordinary General
Meeting and in this Agreement, are void and without force or effect.
Similarly, any modification of this Agreement shall be made in a writing
signed by the parties.
SECTION 16. The Shareholders shall not assign any of their rights or
obligations hereunder, whether in whole or in part, without the written
consent of ABSA and DNAP.
SECTION 17. The parties agree that the headings contained in the index are
for convenience only, and therefore the contents of the Sections shall
control over any discrepancy between the Sections and the headings.
SECTION 18. With respect to any dispute that arises out of the
interpretation, execution, performance or breach of this Agreement, with the
exception of those special proceedings that the parties have agreed to for
the resolution of certain disputes specifically provided for herein, and
which shall be exhausted first, the parties expressly submit to the laws of
the United Mexican States and the competent courts in the city of Monterrey,
N.L., and waive any other jurisdiction that they may be entitled to due to
their present or future domiciles.
The parties, being aware of the content and legal effect of this Agreement,
signed this Agreement in triplicate in the presence of two witnesses of legal
age in the City of Monterrey, N.L., on the 29th day of August, 1997.
"THE SHAREHOLDERS"
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▇▇▇▇▇ DE LOS ANGELES ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ DE LOS ANGELES ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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16
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"ABSA"
AGRICOLA ▇▇▇▇▇, ▇.▇. DE C.V.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
"DNAP"
DNAP HOLDING CORPORATION
"THE GUARANTORS"
17
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
WITNESS WITNESS
----------------------------------- -----------------------------------
[Annexes to the Agreement have not been translated.]
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