EXHIBIT 99.1
[X.X. Xxxx Letterhead]
[Form of Information Agent Agreement]
August ___ , 2004
Mr. Xxxxxx Xxxxx
Chief Financial Officer
Distribucion y Servicio D&S S.A.
Xxxxxxx Xxxxxxxxxx Xxxxxxx Xxxx Xxxxxxxx
0000 Xxxxxxxxx
Xxxxxxxx, Xxxxx
Dear Xx. Xxxxx:
This Letter Agreement sets forth the terms and conditions pursuant to
which Distribucion & Servicio D&S S.A. (the "Company") has retained X. X. Xxxx &
Co., Inc. ("King") in connection with a proposed rights offering.
Pursuant to the rights offering, (i) holders of record of the Company's
American Depository Receipts, representing the Company's American Depository
Shares (the "ADSs"), as of a record date specified by the Company (the "Record
Date"), will receive rights to subscribe for additional ADSs at a subscription
price of $____ per ADS. The rights offering to purchase ADSs is herein referred
to as the "Rights Offer."
1. The Company hereby retains King as Information Agent for advisory and
consulting services in connection with the Rights Offer and requests and
authorizes King to contact, and to provide information with respect to the
Rights Offer to, holders of ADSs. For this purpose, King is authorized to
use, and will be supplied by the Company with as many copies as King may
reasonably request of, the following materials filed with the Securities
and Exchange Commission (the "Commission") or publicly released (or to be
filed or publicly released) by the Company in connection with the Rights
Offer (collectively, the "Rights Offer Materials"): (i) prospectus; (ii)
rights certificates; (iii) instructions for use of rights certificates;
(iv) press releases and newspaper advertisements, if any; (v) letter to
securities dealers, banks and trust companies, and letter from securities
dealers, banks and trust companies to their customers, if any; (vi) any
other ancillary materials that the Company deems to be necessary and
appropriate; and (vii) any and all amendments or supplements to any of the
foregoing.
2. The Company agrees to pay King as compensation for its services a fee of
$_______, which is due upon the completion, expiration or termination, as
the case may be, of the Rights Offer. In the event the Company extends the
term of the Rights Offer, the Company agrees to pay King an additional fee
of $____ for each such extension. Further, the Company agrees to pay King
$_____ for each completed telephone contact (incoming or outgoing) in
connection with the Rights Offer. In the event the Company requests King
to provide additional services, the
Company agrees to pay King reasonable and customary compensation, in an
amount, if any, to be mutually agreed upon. The Company further agrees to
reimburse King for all reasonable out-of-pocket expenses (including
reasonable counsel's fees and disbursements) incurred by King in retention
hereunder. The Company agrees and acknowledges that its obligation under
this paragraph 2 is not in any way conditional upon the successful
consummation of the Rights Offer.
3. The Company agrees that King shall have the right to pass upon and approve
any and all references to King in the Rights Offer Materials. The Company
shall not file with the Commission, any other governmental or regulatory
authority or body or any court, or otherwise make public, any document
containing any reference to King unless and until King shall have approved
such reference, which approval shall not be unreasonably withheld or
delayed.
4. The Company represents and warrants to King that:
(i) this letter agreement is a valid and binding agreement on the
Company's part;
(ii) all necessary corporate action will be duly taken by the Company
prior to the commencement of the Rights Offer to authorize the
Rights Offer and the purchase of ADSs in connection with the Rights
Offer;
(iii) all Rights Offer Materials will comply, in all material respects,
with the U.S. Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder, and none of the Rights
Offer Materials, and no other report, filing, document, release or
communication published or filed by the Company in connection with
the Rights Offer, will contain any untrue or misleading statement of
a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements made therein not
misleading;
(iv) the Rights Offer, and the purchase of ADSs in connection with the
Rights Offer, will comply, in all material respects, with all
applicable requirements of law including the applicable rules or
regulations of any governmental or regulatory authority or body, and
no material consent or approval of, or filing with, any governmental
or regulatory authority or body (other than any required filings
under the U.S. Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder) is required in
connection with the making or consummation of the Rights Offer (or,
if any such material consent, approval or filing is required it will
be duly obtained or made prior to the commencement of the Rights
Offer); and
(v) the Rights Offer, and the issuance of ADSs in connection with the
Rights Offer, and/or the execution, delivery and performance of
this letter agreement, will not conflict with or result in a breach
of or constitute a default under the Company's restated certificate
of incorporation or bylaws, or any
material agreement, indenture, mortgage, note or other instrument by
which the Company is bound.
5. The Company will advise King promptly of the occurrence of any event which
will cause it not to proceed with or to withdraw or abandon the Rights
Offer. The Company will also advise King promptly of any amendment or
supplement to any of the Rights Offer Materials.
6. King hereby agrees that in performing its services hereunder it will
comply, in all material respects, with all applicable requirements of law.
7. The Company hereby agrees to indemnify and hold harmless King, King's
controlling persons, officers, directors, employees, agents and
representatives (collectively, the "Indemnified Persons") from and against
any and all losses, claims, damages, liabilities and expenses whatsoever
(including but not limited to, all reasonable counsel fees, disbursements
and other out-of-pocket expenses) incurred by such Indemnified Persons in
investigating, preparing to defend or defending (or appearing or preparing
for appearance as a witness in connection with) any claim, litigation,
proceeding, investigation, or governmental or stock exchange inquiry,
commenced or threatened or any claim whatsoever: (i) arising out of or
based upon any facts or circumstances constituting a violation of, or in
conflict with, any of the representations and warranties set forth in
paragraph 4 above; or (ii) arising out of, relating to or in connection
with the Rights Offer, except for the bad faith, willful misconduct or
gross negligence of any Indemnified Person. The Company shall reimburse
such Indemnified Persons for such reasonable counsel fees and
disbursements and other out-of-pocket expenses at such time as they are
paid or incurred by such Indemnified Persons. The foregoing indemnity
shall be in addition to any liability which the Company might otherwise
have to the Indemnified Persons.
8. King agrees to notify the Company promptly of the assertion of any claim
against any of the Indemnified Persons in connection with the Rights
Offer; and the Company agrees to notify King promptly of the assertion of
any claim against the Company or any of its officers, directors, employees
or agents in connection with the Rights Offer relating to the operation or
administration of this Letter Agreement. At the Company's election, unless
there is a conflict of interest, the defense of the Indemnified Persons
shall be conducted by the Company's counsel who shall be reasonably
satisfactory to King and the Indemnified Persons who are defendants in the
action or proceeding. Notwithstanding the Company's election to assume the
defense of such action or proceeding, an Indemnified Person may employ
separate counsel to represent it or defend it in such action or proceeding
and the Company will pay the reasonable fees and expenses of such counsel
as set forth above if such Indemnified Person reasonably determines that
there are defenses available to such Indemnified Person which are
different from, or in addition to, those available to the Company, or if a
conflict of interest exists which makes representation by counsel chosen
by the Company not advisable; provided, however, unless there are actual
or potential conflicts of interest among the
Indemnified Persons, the Company will not be required to pay the fees and
expenses of more than one separate counsel for all Indemnified Persons in
any jurisdiction in any single action or proceeding. In any action or
proceeding the defense of which the Company assumes, the Indemnified
Persons shall nevertheless be entitled to participate in such action or
proceeding and retain its own counsel at such Indemnified Person's own
expense. The Company shall not settle or compromise any such action or
proceeding without the Indemnified Person's prior written consent, unless
the terms of the settlement or compromise include an unconditional release
of any such Indemnified Person from all liability or loss arising out of
such action or proceeding.
9. The representations and warranties contained in paragraph 4 above and the
indemnity agreement contained in paragraphs 7 and 8 above shall remain
operative and in full force and effect regardless of: (i) the termination,
expiration or consummation of the Rights Offer; and (ii) any investigation
made by or on behalf of any party.
10. This agreement shall be construed and enforced in accordance with the laws
of the State of New York. It is agreed that any action, suit or proceeding
arising out of or based upon this agreement may be brought in the United
States District Court for the Southern District of New York or any court
of the State of New York of competent jurisdiction located in such
district, and the parties hereto hereby consent to the in personam
jurisdiction and venue of any such court and to service of process by
certified mail, return receipt requested.
If any provision of this agreement shall be held illegal or invalid by any
court, this agreement shall be construed and enforced as if such provision had
not been contained herein and shall be deemed an agreement between the parties
hereto to the fullest extent permitted by law.
If the foregoing correctly sets forth the understanding between the
Company and King, please indicate acceptance thereof in the space provided below
for the purpose, whereupon this letter and the Company's acceptance shall
constitute a binding agreement between the parties hereto.
X.X. XXXX & CO., INC.
By: __________________
Accepted as of the date first above written:
Distribucion y Servicio D&S S.A.
By: ______________________
Name: ______________________
Title: ______________________
