EXHIBIT 2.6
JOINT VENTURE AND SHAREHOLDERS AGREEMENT
AGREEMENT dated September 18, 1998 by and between Uniroyal Chemical
Company, Inc., a New Jersey corporation with its principal offices at World
Headquarters, Middlebury, Connecticut 06749 ("Uniroyal"), and GIRSA S.A. de
C.V., a company organized and existing under the laws of Mexico with its
principal offices at Paseo de los Tamarindos No. 400 B, Piso 31 Bosque de las
Lomas, Mexico, D.F. ("GIRSA"), with the participation of Novaquim Holdings,
S.A. de C.V., a company organized and existing under the laws of Mexico with
its principal offices at Insurgentes Sur 1685, Piso 11, Col. Guadalupe Inn,
Mexico, D.F. ("Novaquim"). As used in this Agreement, references to "Uniroyal
Chemical" shall mean Uniroyal and/or Novaquim, as required by the context of
this Agreement, and references to a "party" or the "parties" shall mean GIRSA,
on the one hand, and Uniroyal Chemical, on the other hand.
WITNESSETH:
WHEREAS, Uniroyal is engaged in the business of manufacturing
acrylonitrile-butadiene rubber ("NBR") and NBR-PVC alloys (NBR and NBR-PVC
alloys being collectively referred to herein as "NBR Products") in the United
States and marketing NBR Products throughout the world and Uniroyal is the
owner of certain proprietary technology with respect to the manufacture of NBR
Products including patents and trademarks and certain proprietary information
with respect to the marketing of NBR Products (collectively, "Technology and
Know-how");
WHEREAS, Novaquim is a wholly owned subsidiary of Uniroyal and carries
on, directly or indirectly, the NBR Products business of Uniroyal in Mexico;
WHEREAS, GIRSA is engaged, through its wholly owned subsidiary,
Industrias Negromex S.A. de C.V. ("INSA") in the business of producing NBR
Products, styrene butadiene rubber and other products and owns manufacturing
facilities for the production of NBR Products, styrene butadiene rubber and
other products, which facilities are located at Altamira, Tams., Mexico (the
"Facilities"), and INSA is currently manufacturing NBR Products exclusively
for Uniroyal at the Facilities;
WHEREAS, GIRSA and Uniroyal have determined that it would be advantageous
to both if the Facilities and the manufacturing skills of INSA, the sales and
marketing skills and customer base of Uniroyal and the Technology and Know-how
were combined into operations of a joint venture (the "Joint Venture"),
consisting of a jointly owned, directly or indirectly, manufacturing company
formed in Mexico, and a jointly owned marketing company formed in the United
States, it being the expectation of GIRSA and Uniroyal that the Joint Venture
would operate, commencing on or about July 1, 1999 (the "Start-up Date"), as a
world class, high quality producer of NBR Products, and would be a successful
competitor in the worldwide market for NBR Products.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged , the parties hereto agree as
follows:
1. JOINT VENTURE COMPANIES
1.01 Manufacturing Company. (a) GIRSA has heretofore caused to be
organized, under the laws of Mexico, an S.A. de C.V. company under the name
Nitrilo, S.A. de C.V. (the "Manufacturing Company"), that shall have an
authorized capital of $100,000.00 pesos consisting of 51 shares of Class A
stock of the par value of $1,000.00 pesos each (the "Manufacturing Class A
Shares") and 49 shares of Class B stock of the par value of $1,000.00 pesos
each (the "Manufacturing Class B Shares"). As promptly as reasonably
possible, GIRSA shall amend the By-laws of the Manufacturing Company, so they
shall be substantially as the ones attached as Exhibit A hereto.
(b) The Manufacturing Company shall engage in the manufacture of NBR
Products, using the Technology and Know-How contributed by Uniroyal to the
Joint Venture required for the manufacture of the NBR Products and the
technical information to be provided by INSA for supporting the continuous
process for NBR and the equipment to be sold, granted in use or contributed or
otherwise funded by GIRSA (indirectly through INSA) and Uniroyal (indirectly
through Novaquim) for the Joint Venture as provided hereunder.
1.02 Marketing Company. (a) As promptly as reasonably possible, Uniroyal
shall cause to be organized, under the laws of the State of Delaware, United
States of America, a limited liability company (the "Marketing Company"),
consisting of 510 Class A units (the "Marketing Class A Shares") and 490 Class
B units (the "Marketing Class B Shares"). The Certificate of Formation and
Limited Liability Agreement for the Marketing Company shall be substantially
as the ones attached as Exhibit B hereto.
(b) The Marketing Company shall engage in the marketing of NBR Products
worldwide on behalf of the Joint Venture except for Mexico, using the sales
and marketing skills and customer base contributed by Uniroyal to the Joint
Venture.
The Manufacturing Company, and the Marketing Company are sometimes referred to
in this Agreement each as a "Joint Venture Company" and collectively as the
"Joint Venture Companies". In the event that GIRSA and Uniroyal shall jointly
organize additional corporations in order to carry on the activities of the
Joint Venture, such additional corporations shall also be deemed Joint Venture
Companies, and shall be subject for their organization and governance to the
applicable provisions of this Agreement.
1.03 Manufacturing Company Capitalization. Capital Contributions of the
parties to the Manufacturing Company shall be as follows:
(a) GIRSA shall contribute or cause to be contributed:
(i) the advances heretofore made by it to the Manufacturing Company to
fund engineering and capital projects to benefit the Joint Venture (as
referred to and provided for in that certain Agreement dated May 12, 1998
by and between GIRSA and Uniroyal (the "Capital Risk Sharing
Agreement"));
(ii) the use for the duration of the Joint Venture of (1) all batch
processing manufacturing machinery and equipment for the production of
NBR Products currently located at the Facilities as more specifically
described in Exhibit "C-1" of this Agreement and (2) the use of new
production equipment worth US$18,620,000.00 as more specifically
described in Exhibit "C-2".
GIRSA shall cause INSA transfer to Manufacturing Company the machinery
and equipment detailed in Exhibit "C-2" no later than eleven years from
the Start up Date.
(iii) cash in an amount equal to the difference between US$7,656,500 and
the amount of the advances referred to in paragraph 1.03 (a) (i) above in
accordance with the cash flow needs to fund capital projects, new
production equipment and improvement of existing equipment at the
Facilities.
In return for the aforesaid contributions to the capital of Manufacturing
Company, GIRSA shall receive 51% of the total amount of shares of
Manufacturing Company, which 51% interest shall be represented by Class A
Shares..
(b) Uniroyal shall contribute, through Novaquim:
(i) the advances heretofore made by Uniroyal through Novaquim to the
Manufacturing Company to fund engineering and capital projects to benefit
the Joint Venture (as referred to and provided for in the Capital Risk
Sharing Agreement) credit for such advances having been contributed by
Uniroyal to Novaquim;
(ii) timely before the Start-up Date, the batch polymerization reactors,
French press, P&S dryer and related machinery and equipment for the
production and testing of NBR Products located at Uniroyal's NBR Products
manufacturing facilities at Painesville, Ohio, U.S.A. and certain
research and development equipment located in Connecticut, as more
specifically described in Exhibit "D" attached to this Agreement;
(iii) cash in an amount equal to the difference between US$7,356,500 and
the amount of the advances referred to in paragraph 1.03 (b) (i) above in
accordance with cash flow needs to fund capital projects, new production
equipment , and improvement of existing equipment at the Facilities.
In return for the aforesaid contributions to the capital of Manufacturing
Company, Novaquim shall receive 49% of the total amount of shares of
Manufacturing Company which 49% interest shall be represented by Class B
Shares.
Once the contributions of the parties have been capitalized through a capital
stock increase , GIRSA shall be holder and owner of 51% of the total shares of
Manufacturing Company, and Novaquim shall be holder and owner of 49% of the
total shares of Manufacturing Company.
1.04 Marketing Company Capitalization. Capital Contributions of GIRSA and
Uniroyal to the Marketing Company shall be as follows:
(a) GIRSA shall contribute or cause to be contributed, cash in the
amount of US$122,500
In return for the aforesaid contribution to the capital of Marketing Company,
GIRSA shall receive 49% of the total amount of ownership interests of
Marketing Company, which interests shall be represented by Class B Shares.
(b) Uniroyal shall contribute or cause to be contributed cash in the
amount of US$127,500
In return for the aforesaid contribution to the capital of Marketing Company,
Uniroyal shall receive 51% of the total amount of ownership interests of
Marketing Company which interests shall be represented by Class A Shares . In
view of the above, once the contributions of the parties have been made, GIRSA
shall be the holder and owner of 49% of the total ownership interests of
Marketing Company, and Uniroyal shall be the holder and owner of 51% of the
total ownership interests of the Marketing Company.
(c) Following such capitalization of the Marketing Company, Uniroyal
shall sell and irrevocably transfer to the Marketing Company, and Uniroyal and
GIRSA shall cause the Marketing Company to purchase from Uniroyal (and/or
Uniroyal shall otherwise provide for the perpetual, free and exclusive use by
the Marketing Company on a worldwide basis of) the following property for the
sum of US$250,000:
All intangible property owned by Uniroyal, or by any Uniroyal's
affiliate, applicable to the production by batch polymerization and marketing
of NBR Products including, but not limited to, all patents, technology, trade
secrets, recipes, technical facts, technical information, formulas or data
owned by Uniroyal, including techniques, processes and research and
development applicable to the production of NBR Products and all logistics
knowledge, procedures, data, trademarks, technical service know-how,
applications and customer lists, applicable to the marketing of NBR Products
(as more specifically described in Exhibit "E" to this Agreement).
Such purchase and sale (and/or other provision for free and exclusive
use) shall be effected by proper instruments of irrevocable assignment or
other appropriate irrevocable documents, substantially in the forms attached
hereto as Exhibit "F", and shall be effective as of the Start-up Date, but
prior to the Start-up Date, Marketing Company and Manufacturing Company, as
licensee of the Marketing Company, shall be granted the right to use the above
mentioned technology and Know-how, in preparation for the start-up of the
Joint Venture including, without limitation, the acquisition and installation
of machinery and equipment for the operations of the Joint Venture.
Uniroyal shall provide reasonable assistance and training in the use of
the above mentioned technology and Know-how to the Marketing Company and to
the Manufacturing Company, as licensee of the Marketing Company, at no cost.
1.05 Ongoing Funding. GIRSA and Uniroyal shall be equally responsible
for funds (other than those provided for in Sections 1.03 and 1.04 of this
Agreement) required by the Joint Venture Companies from time to time. GIRSA
and Uniroyal shall discuss and, agree upon the method by which additional
funds required by the Joint Venture Companies shall be raised. Such funds may
be provided in the form of loans directly from GIRSA and Uniroyal, from
related or unrelated third parties or other funding methods as GIRSA and
Uniroyal may agree. If GIRSA and Uniroyal are unable to agree on the adoption
of some other method for raising funds required by a Joint Venture Company or
Companies, GIRSA and Uniroyal shall lend or shall cause an affiliated party to
lend to the entity requiring such funds one behalf of the amount so required
at a rate of interest to be agreed upon by the parties at that time.
1.06 Allocation of Joint Venture Profits and Liabilities. (a) Unless
otherwise agreed by the parties, the parties shall cause all of the free cash
flow (excluding cash required for ongoing operations, approved capital
expenses and repayment of indebtedness) of each Joint Venture Company to be
distributed as dividends, provided that such distribution does not impair the
capital of such company and is otherwise permitted by applicable law. It is
the expectation of the parties that the contributions to the Joint Venture by
the Manufacturing Company and the Marketing Company will be equal between
GIRSA and Uniroyal Chemical and it is therefore the intention of the parties
that the aggregate profits of the Joint Venture net of any taxes paid by the
Joint Venture Companies, on a combined basis and without giving effect to
their respective equity ownership interests in the Joint Venture Companies,
will be shared equally by the parties, GIRSA on the one hand and Uniroyal
Chemical, on the other hand. Accordingly, the parties shall take all the
necessary steps and/or make all necessary adjustments in the operations of the
Joint Venture Companies in order to so assure that GIRSA and Uniroyal Chemical
will enjoy an equal share of the aggregate profits of the Joint Venture
Companies, as contemplated by this Section 1.06.
(b) It is the intention of the parties that potential liabilities of the
Joint Venture Companies accruing from and after the Start-up Date, including,
but not limited to, product liabilities, environmental liabilities and health
liabilities (but excluding liabilities for which GIRSA, Uniroyal or another
party is obligated to indemnify GIRSA, Uniroyal or any Joint Venture Company
under this Agreement or any of the Related Agreements, as defined in Section
10.01 hereof), will also be shared by GIRSA and Uniroyal on an equal basis,
whether or not the equity of such Joint Venture Company is owned equally by
GIRSA and Uniroyal. Accordingly if, and to the extent that a Joint Venture
Company and/or GIRSA and Uniroyal including any of their subsidiaries party to
the Related Agreements incurs any such liability, GIRSA and Uniroyal shall
cause such liability to be equalized between them, whether by an adjustment of
distributions to the parties, an equalizing payment from one party to the
other or some other appropriate mechanism.
The provisions of this subsection (b) shall apply only to the equalization of
liabilities of the Joint Venture Companies as between Uniroyal and GIRSA and
nothing set forth in this subsection (b) shall be deemed to create any
obligation by GIRSA or Uniroyal to third parties for the liabilities of the
Joint Venture Companies.
(c) It is the intention of the parties that the benefits and burdens
of carrying accounts receivable, inventory and accounts payable related to the
NBR Operations of the Joint Venture will be shared by GIRSA and Uniroyal
Chemical on an equal basis. Accordingly, the parties shall cause such
benefits and burdens to be equalized between them.
1.07 Corporate Governance of the Joint Venture Companies. (a) The By-
laws and other formation documents of each Joint Venture Company shall
provide that such company shall be governed by a board of directors consisting
of six directors or managers, as the case may be, three of whom shall be
nominated and elected by the holders of the Class A Shares and three of whom
shall be nominated and elected by the holders of the Class B Shares. The
formation documents of the Marketing Company shall include the Limited
Liability Company Agreement governing the Marketing Company entered into by
GIRSA and Uniroyal.
(b) Directors or Managers, as the case may be, of a Joint Venture
Company nominated and elected by holders of the Class A shares of such company
are referred to in this Agreement as "Class A Directors" of such company and
directors of a Joint Venture Company nominated and elected by holders of the
Class B shares of such company are referred to in this Agreement as "Class B
Directors" of such company.
2. CAPITAL PROJECTS OF THE MANUFACTURING COMPANY
2.01 Transfer of Existing Equipment. The parties shall cause the
Manufacturing Company to pay the costs of dismantling, moving and reinstalling
at the Facilities the machinery and equipment referred to in Section
1.03(b)(ii) hereof and the parties shall cooperate with the Manufacturing
Company in arranging for the dismantling and moving of such machinery and
equipment. Such cooperation shall consist of technical and logistical
assistance as appropriate. In any event, dismantling, moving and
reinstalling of such machinery and equipment at the Facilities shall be
carried out in accordance with an expense budget to be approved by the parties
and must comply with the procedures established in the "Project Manual"
attached hereto as Exhibit "G".
2.02 New Capital Projects. (a) Decisions on whether or not to commit
funds for new production assets to be installed at the Facilities by or on
behalf of the Manufacturing Company (including funds for engineering services
related thereto) shall be made jointly by the parties (each such proposed
installation being referred to herein as a "Capital Project"). Once the
parties have reached agreement on a decision to commit funds for any Capital
Project (each an "Approved Capital Project"), the implementation of such
Approved Capital Project shall be effected by the Managing Director of the
Manufacturing Company and a steering committee (the "Steering Committee")
consisting of an equal number of members appointed by GIRSA and Uniroyal
Chemical, not to exceed 6 members. GIRSA shall make available or cause INSA
to make available all such information about the Facilities and the processes
at the Facilities, and GIRSA shall provide or shall cause INSA to provide such
access to the Facilities, as the Managing Director of the Manufacturing
Company and the Steering Committee may reasonably require to enable them to
evaluate proposals for any Capital Project, to develop or obtain estimates of
the costs for the design, procurement and construction of any Approved Capital
Project or to otherwise effectuate the purposes of this Section 2.02. The
Capital Projects initially expected to be implemented by or on behalf of the
Manufacturing Company in pursuit of the goals of the Joint Venture (the
"Initial Capital Projects"), and the costs of such Initial Capital Projects as
presently anticipated by the parties, are set forth in Exhibit "H" attached
hereto. The parties shall not unreasonably fail to approve the implementation
of any Initial Capital Project set forth in such Exhibit "H" provided that the
estimated costs for the design, procurement and construction of such Initial
Capital Project are within the limits for such Initial Capital Project as set
forth in such Exhibit "H"; provided that neither party shall be obligated to
approve any such Initial Capital Project if it believes, in good faith, that
such Initial Capital Project can be better implemented in a manner different
than that proposed or at a cost more favorable to the Joint Venture than that
estimated and if it provides to the other party information reasonably
substantiating such belief. The parties may decide, as part of the initial
capital program phase for the Manufacturing Company, to implement Capital
Projects different from or in addition to those set forth on Exhibit "H"
attached hereto, in the manner contemplated by this Section 2.02.
(b) After the completion of the initial capital program phase for the
Manufacturing Company as referred to in subsection (a) of this Section 2.02,
ongoing Capital Projects for the Manufacturing Company shall be overseen by
the Managing Director of the Manufacturing Company and the Steering Committee,
who shall recommend investments in Capital Projects and shall develop
operating policies and procedures for the Manufacturing Company.
(c) The Managing Director of the Manufacturing Company shall also be the
President of the Marketing Company shall have the authority to make
commitments on behalf of the Manufacturing Company with engineers, vendors,
contractors and other persons or entities for expenditures for Approved
Capital Projects up to the amount approved by the parties for such Approved
Capital Project, including the authority to expend funds on behalf of the
Manufacturing Company for Approved Capital Projects. Promptly after the work
contracted for in respect of an Approved Capital Project shall have been
completed, the Steering Committee shall submit a report thereon to GIRSA and
Uniroyal.
3. OPERATING AGREEMENT
3.01 INSA and the Manufacturing Company shall enter no later than November
15, 1998, into an operating agreement dated as of the date of this Joint
Venture Agreement ("the Operating Agreement") whereby INSA will provide or
cause to be provided to the Manufacturing Company (a) the use of the
Facilities, (b) labor, (c) the use of the machinery and equipment described
in Exhibits "C-1" and "C-2", (d) technology for continuos emulsion
polymerization process recognized as trade secret of INSA and (e) other
services including utilities necessary for the production of NBR Products at
the Facilities and invoicing services. The Operating Agreement shall be
substantially in the form attached hereto as Exhibit "I". GIRSA shall cause
INSA to enter into the Operating Agreement and GIRSA and Uniroyal Chemical
shall cause the Manufacturing Company to enter into the Operating Agreement.
Simultaneously with the execution and delivery of the Operating Agreement and
the NBR Products Supply Agreement referred to in Section 6.01 hereof, Uniroyal
shall, and GIRSA shall cause INSA to, terminate the Manufacturing Agreement
dated January 5, 1996 by and between INSA and Uniroyal, effective on the
Start-up Date.
4. SALES SERVICES AGREEMENTS
4.01 Uniroyal, GIRSA and the Marketing Company shall enter no later than
November 15, 1998, into a sales services agreement dated as of the date of
this Joint Venture Agreement (the "Uniroyal Sales Services Agreement"),
whereby Uniroyal will provide sales services, technical support services and
other services including warehousing, invoicing and logistical support for the
NBR Products sales efforts of the Marketing Company. The Uniroyal Sales
Services Agreement shall be substantially in the form attached hereto as
Exhibit "J-1". GIRSA and Uniroyal shall cause the Marketing Company to enter
into the Uniroyal Sales Services Agreement.
4.02 The Manufacturing Company and Novaquim, S.A. de C.V., a subsidiary of
Novaquim, shall enter no later than November 15, 1998 into a sales services
agreement dated as of the date of this Joint Venture Agreement (the "Novaquim
Sales Services Agreement"), whereby Novaquim, S.A de C.V. will provide sales
services to the Manufacturing Company in regards to the sale of the NBR
Products in Mexico. The Novaquim Sales Services Agreement shall be
substantially in the form attached hereto as Exhibit "J-2". GIRSA and
Uniroyal Chemical shall cause the Manufacturing Company to enter into the
Novaquim Sales Services Agreement, and Uniroyal Chemical shall cause Novaquim,
S.A. de C.V. to enter into the Novaquim Sales Services Agreement.
5. TECHNOLOGY LICENSE
5.01 The Marketing Company and the Manufacturing Company shall enter, no
later than November 15, 1998 into an exclusive license agreement (the "License
Agreement"), whereby, except as provided in Section 1.04 (b), paragraph
three, above, the Marketing Company shall grant an exclusive and irrevocable
license on a worldwide basis, to the Manufacturing Company for a 99 year term
on all intangible property owned by the Marketing Company applicable to the
production of NBR Products including, but not limited to, all patents,
technology, recipes and research and development results. The License
Agreement shall be substantially in the form attached hereto as Exhibit "K".
GIRSA and Uniroyal Chemical shall cause the Marketing Company and the
Manufacturing Company to enter into the License Agreement.
6. NBR PRODUCTS SUPPLY AGREEMENT
6.01 The Marketing Company and the Manufacturing Company shall enter no
later than November 15, 1998, into an NBR Products supply agreement dated as
of the date of this Joint Venture Agreement (the "NBR Products Supply
Agreement"), whereby, except as may be otherwise agreed by the Marketing
Company and the Manufacturing Company, the Marketing Company will purchase all
of its requirements for NBR Products solely from the Manufacturing Company and
the Manufacturing Company will produce NBR Products exclusively for the
Marketing Company except that the Manufacturing Company will produce NBR
Products for its own account for sales to customers in Mexico. The NBR
Products Supply Agreement shall be substantially in the form attached hereto
as Exhibit "L". GIRSA and Uniroyal Chemical shall cause the Marketing Company
and the Manufacturing Company to enter into the NBR Products Supply Agreement.
7. CORPORATE SERVICES AGREEMENTS
7.01 GIRSA Corporativo, S.A. de C.V., a Mexican corporation that is a
wholly owned subsidiary of GIRSA ("GIRSA Corporativo"), and Manufacturing
Company shall enter no later than November 15, 1998, into a corporate services
agreement dated as of the date of this Joint Venture Agreement ("GIRSA
Corporate Services Agreement"), whereby GIRSA Corporativo will provide
corporate services to Manufacturing Company. The GIRSA Corporate Services
Agreement shall be substantially in the form attached hereto as Exhibit "M-1".
GIRSA and Uniroyal shall cause Manufacturing Company to enter into the GIRSA
Corporate Services Agreement, and GIRSA shall cause GIRSA Corporativo to enter
into the GIRSA Corporate Services Agreement.
7.02 Uniroyal and Marketing Company shall enter no later than November 15,
1998, into a corporate services agreement dated as of the date of this Joint
Venture Agreement ("Uniroyal Corporate Services Agreement"), whereby Uniroyal
will provide corporate services to Marketing Company. The Uniroyal Corporate
Services Agreement shall be substantially in the form attached hereto as
Exhibit "M-2". GIRSA and Uniroyal shall cause the Marketing Company to enter
into the Uniroyal Corporate Services Agreement.
8. FORCE MAJEURE
8.01 Neither party shall be liable for its delay or failure to perform
hereunder if due to any contingency beyond the reasonable control of the party
affected, including but not limited to acts of God, war, sabotage, labor
disturbance, civil disturbance, or governmental regulation or order. Such
performance shall be excused during the continuation of the inability of the
party to so perform ("Delayed Party") and the cause of such non-performance
shall be remedied insofar as possible with all due dispatch of the Delayed
Party. Delay or failure to perform hereunder due to the closing by Uniroyal
of the Painesville Plant shall not be considered Force Majeure.
9. SHAREHOLDER AND MANAGEMENT ISSUES
9.01 Management of the Joint Venture. The powers, responsibilities and
procedures of the shareholders, boards of directors and officers of the Joint
Venture shall be as specified in this Agreement and in the formation documents
for each of the Joint Venture Companies, respectively.
9.02 General Procedures. Written agendas of the topics to be discussed at
any meeting of the shareholders or board of directors of any Joint Venture
Company shall be distributed to all directors in advance of any such meetings;
written descriptions of such topics shall also be distributed at such meetings
and shall form the basis of any discussions. The results and minutes of such
meetings shall be recorded and supplied for approval to the participants at
such meetings in accordance with applicable law.
9.03 Meetings of Shareholders. Annual and special meetings of the
shareholders of each of the Joint Venture Companies shall be conducted in
accordance with the provisions of applicable law. The shareholders of each of
the Joint Venture Companies shall make all reasonable efforts to alternate the
location of meetings of shareholders between Mexico City, Mexico, and
Middlebury, Connecticut, or any other location agreed upon by the
shareholders, subject to requirements of applicable law. If permitted by
applicable law and if acceptable to the shareholders of such companies, the
shareholders of such companies may act by written consent in lieu of any
meeting. Reference in this Agreement to "shareholder" shall be deemed with
respect to the Marketing Company, to refer to "member", whether such term is
capitalized or lower case.
9.04 Boards of Directors. (a) The management of each of the Joint
Venture Companies shall be the responsibility of the board of directors
thereof, which shall be elected and governed in its actions according to the
provisions of this Agreement and the provisions of applicable law. Each
director shall serve as such without compensation.
Reference in this Agreement to "director" and "board of directors" shall be
deemed, with respect to the Marketing Company, to refer to "manager" and
"board of managers" whether such terms are capitalized or lower case.
(b) The powers and duties, indemnification, and other terms and
conditions of directors of each of the Joint Venture Companies shall be
determined from time to time by the shareholders thereof in accordance with
the applicable formation documents and applicable law.
(c) The boards of directors of each of the Joint Venture Companies shall
make all reasonable efforts to alternate the location of meetings of directors
between Mexico City, Mexico and Middlebury, Connecticut, or any other location
agreed upon by the directors. To the extent reasonably possible, board of
directors meetings of the Joint Venture Companies shall be coordinated so that
they can be held successively on the same date and in the same location. If
permitted by applicable law and if acceptable to the directors of such
companies, the directors of such companies may act by written consent in lieu
of any meeting.
(d) Holders of the class of shares entitled to nominate and elect a
director of any company may fill any vacancy resulting from such director's
death, resignation or removal, in each case without the consent of holders of
another class of shares.
(e) There shall be a Chairman of the Board of Directors of the Marketing
Company and of the Manufacturing Company, serving for a term of two years.
The first Chairman of the Board of Directors of the Marketing Company shall be
designated by the holder of the Class B Shares of the Marketing Company and
the first Chairman of the Board of Directors of the Manufacturing Company
shall be designated by the holder of the Class A shares of the Manufacturing
Company. At the end of such first two-year terms, the successor Chairman of
the Board of Directors of the Marketing Company shall be designated by the
holder of the Class A Shares of the Marketing Company and the successor
Chairman of the Board of Directors of the Manufacturing Company shall be
designated by the holder of the Class B shares of the Manufacturing Company.
The designation of the holder of such office in each Joint Venture Company for
each successive term shall alternate in the foregoing manner. The class of
shares at the time having the right to designate the holder of such office
shall also have the right, at any time or times during the two year term for
its designee, to designate a replacement for such designee or for any person
designated by such class of shares as such a replacement.
(f) Each board of directors of a Joint Venture Company shall have the
power to delegate responsibilities and authority to committees of such board
of directors or to appropriate officers of such company from time to time if
such delegation has been approved by both Class A Directors and Class B
Directors of such company.
(g) The taking of any of the following actions by any Joint Venture
Company shall require the approval of both a majority of Class A Directors and
a majority of Class B Directors of such company, if the matter is being
submitted for a vote of directors, or the favorable vote of 75% of the total
outstanding voting shares of stock of such Company, if the matter is being
submitted for a vote of shareholders:
(i) Review, approval and modification of the operating budget for
such company for each financial year and of business and strategic
plans for such Company;
(ii) Creation or dissolution of any subsidiaries of such Company;
(iii) Establishment or modification of such Company's capital
expenditures budget;
(iv) Appointment, removal and compensation of such Company's
officers;
(v) Establishment, modification or termination of such Company's
compensation and benefits programs and policies;
(vi) Any change in dividend distribution policies as set forth in
Section 1.06 hereof;
(vii) Approval of capital projects estimated to exceed US
$50,000.00;
(viii) Execution, modification or termination in any form
whatsoever of (a) any contract, agreement or arrangement with Uniroyal
or GIRSA, (b) any contract, agreement or arrangement with any other
Joint Venture Company including the Related Agreements; or (c) any
contract, agreement or arrangement with any affiliate of Uniroyal,
Novaquim or GIRSA including all Related Agreements;
(ix) Acquisition or disposition of any business of such Company,
and approval of any financing associated with such acquisition or
disposition;
(x) Entering into, modifying or terminating any agreement having
a term in excess of one year (except for confidentiality or non-
disclosure agreements) and/or involving expenditures or receipts by such
Company of more than US $50,000.00 other than in the ordinary course of
business;
(xi) Making any loan or advance or giving any credit other than
NBR Products trade credit in the ordinary course of business by such
Company or making any modification of any of the terms of any such loan,
advance or credit except for intercompany loans between Joint Venture
Companies;
(xii) Borrowing of any funds (but not draw-downs under lines of
credit or other credit facilities previously approved);
(xiii) Granting of any mortgage, lien, security interest or other
encumbrance over any assets of such Company;
(xiv) Appointment of outside counsel and/or independent auditors;
(xv) Change of accounting principles of such Company;
(xvi) Modification of the formation documents (certificate of
incorporation and by-laws in the case of the Manufacturing Company or
certificate of formation and Limited Liability Company Agreement in the
case of the Marketing Company, or any other constituent documents) of
such company or any subsidiary of such Company;
(xvii) Acquisition or disposition by purchase, lease or otherwise
of any real property;
(xviii) Acquisition or disposition of any assets in any single
transaction or series of related transactions, other than in the
ordinary course of business;
(xix) Discontinuance of such Company's business;
(xx) Authorization of any merger, consolidation, reorganization
or recapitalization involving such Company;
(xxi) Settlement of any lawsuit or claim, or confession of
judgment in any legal proceeding, in an amount in excess of $50,000.00;
(xxii) Termination, dissolution or winding up of such Company;
(xxiii) The granting of powers of attorney.
(xxiv) The issuance of additional securities, whether debt or
equity.
9.05 Officers. The officers of the Joint Venture Companies shall be a
President, in the case of the Marketing Company and a Managing Director in the
case of the Manufacturing Company, a Treasurer and a Secretary and such other
officers, if any, as shall be determined by the Board of Directors. The Joint
Venture Companies shall also have a Chief Financial Officer (who may be the
Treasurer). The holders of the Class A Shares and the Class B Shares shall
consult with one another in the selection of the holders of offices in each of
the Joint Venture Companies and shall jointly select such officers. Subject to
the provisions of applicable law, an individual may hold more than one office
of any Joint Venture Company, except that the offices of President or Managing
Director, as the case may be, and Treasurer of any of the Joint Venture
Companies may not be held by the same person.
9.06 Obligations of Confidentiality. Every director, officer and
employee of each of the parties to this agreement and each of the Joint
Venture Companies involved with the operations of the Joint Venture Companies,
shall be required to keep strictly secret and confidential all confidential,
proprietary or non-public information of such company, and the shareholders of
each such company shall keep strictly secret and confidential all
confidential, proprietary or non-public information of each such company,
except as otherwise authorized by the board of directors of such company and
except that the President or Managing Director of the Joint Venture Companies
may disclose confidential, proprietary or non-public information of the Joint
Venture Companies in pursuing the business interests of such companies,
provided that the President or Managing Director of the Joint Venture
Companies has first obtained appropriate confidentiality agreements from any
parties to whom or to which such confidential, proprietary or non-public
information is being disclosed.
9.07 Required Insurance The parties shall cause each of the
Manufacturing Company and the Marketing Company, to maintain in effect
insurance in amounts and covering the risks customary in the industry in which
such company operates. In particular, the insurance coverage for the
Manufacturing Company shall be substantially similar to the insurance coverage
maintained by GIRSA for its subsidiaries generally. GIRSA shall notify the
Manufacturing Company within reasonable time about any change in its insurance
coverages.
9.08 Environmental, Health and Safety Standards. It is the intention of
the parties that the operations of the Manufacturing Company shall be
conducted in compliance with all applicable Mexican environmental, health and
safety laws and regulations.
10. REPRESENTATIONS, WARRANTIES AND COVENANTS
Each of the parties hereto represents and warrants to and covenants with
the others as follows:
10.01 Organization. It is a corporation duly organized, validly existing
and in good standing (a) under the laws of Mexico, in the case of GIRSA, or
(b) under the laws of the State of New Jersey, United States, in the case of
Uniroyal, and under the laws of Mexico, in the case of Novaquim, in each case
with full corporate power and authority to own its properties and assets and
to conduct its business in the manner in which it is operated, and to enter
into this Agreement and, as the case may be, to enter into each of the
agreements referred to in Articles 3 through 7 of this Agreement (each a
"Related Agreement") to which it is to be a party and to perform its
obligations hereunder and thereunder.
10.02 Authority. It has all requisite corporate power and authority to
enter into and perform this Agreement and, as the case may be, to enter into
each Related Agreement to which it is to be a party, and to consummate the
transactions contemplated hereby and thereby. All corporate acts and other
proceedings required to be taken by or on the part of it to carry out this
Agreement and such Related Agreements, and to execute and deliver the
instruments and consummate the transactions contemplated hereby and thereby
have been duly and properly taken. This Agreement and such Related Agreements
have been or will be duly executed and delivered by it and constitute, or when
executed will constitute, its legal, valid and enforceable obligation of in
accordance with the respective terms of this Agreement and such Related
Agreements, except as such enforceability may be limited by applicable
bankruptcy, insolvency or similar laws from time to time in effect which
affect creditors' rights generally, and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
10.03 No Conflict. Neither the execution and delivery by it of this
Agreement or the Related Agreements, as the case may be, to which it is to be
a party, nor the consummation by it of the transactions contemplated hereby
and thereby will:
(a) conflict with, result in a breach of or constitute a default (or an
event which with notice or lapse of time or both could become a default)
under, or result in the imposition of a lien or encumbrance on any of its
assets, properties or rights pursuant to, (i) its By-Laws, in the case of
GIRSA and Novaquim, or its Amended Certificate of Incorporation or By-
laws, in the case of Uniroyal, or (ii) any agreement, indenture,
mortgage, lease, contract, commitment or other instrument or obligation
to which it is a party or by which it or its business and assets is bound
or affected;
(b) violate any law or regulation or court or administrative judgment,
order or process, or
(c) require it to obtain any authorization, consent, approval or waiver
from, or to make any filing with, any public body or authority or any
other person or entity, except as disclosed in Exhibit "N".
10.04 Corporate Existence. It will not liquidate, merge or consolidate
with or into any person, firm or corporation unless (a) the surviving or
resulting person, firm or corporation, concurrently with such transaction,
irrevocably and unconditionally assumes its obligations hereunder and under
the Related Agreements to which it is a party, such assumption to be in an
instrument to be delivered and to be satisfactory in form and substance to the
other party hereto, and (b) immediately after and as a result of such
liquidation merger or consolidation no Event of Default (as defined in Section
11.01 of this Agreement), and no event that with notice or the passage of time
or both would constitute an Event of Default, shall exist.
10.05 Conduct of NBR Products Business. From and after the Start-up Date,
(a) the business of manufacturing and marketing NBR Products shall be
conducted by it exclusively through the Joint Venture, and (b) it will not
engage, directly or indirectly, in the business of manufacturing or producing,
or selling, marketing or distributing NBR Products except through the Joint
Venture Companies as contemplated by this Agreement and the Related
Agreements; except that (i) Uniroyal may continue to sell NBR Products for its
own account (and not for the account of the Joint Venture or the Marketing
Company), directly and/or indirectly through its subsidiaries, until the on-
hand inventories of NBR Products manufactured and/or purchased by Uniroyal and
its subsidiaries in the ordinary course of business up to the Start-up Date
have been exhausted and (ii) during an interim period after the Start-up Date,
while accounting, computer and other such systems are being developed for the
Joint Venture and for Uniroyal's sales services under the Uniroyal Sales
Services Agreement and Novaquim, S.A. de C.V.'s sale services under the
Novaquim Sales Services Agreement, Uniroyal and Novaquim, S.A. de C.V. may, in
providing such services, purchase from the Marketing Company and/or
Manufacturing Company as the case may be, on a consignment basis or otherwise,
NBR Products for resale to customers provided that the Joint Venture shall
receive the total economic benefit of any such sales.
10.06 Warranties. It has the right to sell, transfer, contribute or
otherwise convey all tangible and intangible property to be transferred sold,
contributed and/or conveyed by it under this Agreement. Therefore, GIRSA
shall be responsible and Uniroyal shall be responsible for itself and for
Novaquim, for any consequential, compensatory, actual, liquidated, punitive or
any other damages or loses suffered by the other party and/or Marketing
Company and/or the Manufacturing Company out of the proper use of said
tangible or intangible property and/or loss or damages caused by any defect in
the tangible or intangible property or instructions supplied by it, including
any default or negligence or infringement. As a result, it shall defend,
indemnify and hold the other party, the Marketing Company and/or the
Manufacturing Company harmless against any and all claims, demands, suits or
any claims of any nature other arising out of the proper use of the tangible
or intangible property.
10.07 Payments /contributions. It will contribute and/or pay, as the
case may be, any amounts under this Agreement when due to the other party or
to any of the Joint Venture Companies. In case of failure to pay any of said
amounts when due, it shall pay to the other party or to the appropriate Joint
Venture Company financial costs at rate of interest 3% above the London
Interbank Offered Rate (LIBOR) for six months as published in the Wall Street
Journal on the date payment was supposed to be made. In addition, the remedies
provided in Section 11.01 may be invoked .
11. DEFAULTS AND TERMINATION.
11.01 Defaults. In the event that either party shall default in the
performance of or in the compliance with any material term, condition or
obligation contained in this Agreement, or in the performance of or in the
compliance with any material term, condition or obligation contained in any
Related Agreement, or shall breach, in any material respect, any
representation, warranty or covenant contained in this Agreement or any
Related Agreement, the non-defaulting party may give the defaulting party
notice, specifying the nature of such default or breach in reasonable detail.
If the defaulting party does not cure such default or breach within 90
(ninety) days of the date of such notice (or if such default or breach cannot
reasonably be cured within said 90 (ninety) day term, if the defaulting party
shall not have commenced such cure and shall not actively and diligently
pursue such cure to its conclusion), GIRSA or Uniroyal, exclusively, may seek
resolution of such default or breach by invoking arbitration in accordance
with Section 15 of this Agreement.
11.02 Termination by Consent. GIRSA or Uniroyal may terminate this
Agreement at any time by mutual agreement in writing.
In the event of termination of this Agreement, GIRSA agrees to cause INSA to
transfer the machinery and equipment detailed in Exhibit "C-1" to
Manufacturing Company at no cost, unless INSA has already transferred this
machinery and equipment in accordance with the terms of Section 1.03 (a)
(ii). In the event of termination of this Agreement, GIRSA shall cause INSA
to transfer the equipment detailed in Exhibit "C-2" to Manufacturing Company
at no cost, unless the Operating Agreement and the terms of Section 1.03 (a)
(ii) continue in full force and effect, in which case INSA shall continue to
own the machinery and equipment detailed in Exhibit "C-2", subject to the
provisions of the Operating Agreement.
12. JOINT VENTURE COMPANIES SHARE TRANSFER RESTRICTIONS AND RIGHT TO
PURCHASE.
12.01 Share Transfer Restrictions.
(a) No Transfers Except Pursuant to this Agreement. Each party
agrees that it will not transfer, assign, pledge, hypothecate, convey or in
any way alienate any of its shares or any right or interest in the Joint
Venture Companies or any of them, whether voluntarily or by operation of law,
or by gift or otherwise, except in accordance with the provisions of this
Agreement as set forth in Sections 12.01 (b) and (c) below or except as set
forth in Section 12.01 (d). Any purported transfer in violation of any
provision of this Agreement shall be void and of no force or effect, shall not
operate to transfer any interest in or title to such shares to the purported
transferee and such purported transferee shall have only a claim against the
purported transferor for rescission and damages, if any.
(b) Transfer to Certain Affiliated Entities. Each party hereby
consents to the transfer at any time by the other party ("Transferring
Party") of any of the Transferring Party's shares in the Joint Venture
Companies or any of them to any company controlled by the Transferring Party
(each a "Controlled Company"), and to the further transfer at any time of such
shares in the Joint Venture Companies or any of them by such Controlled
Company back to the Transferring Party or to another Controlled Company of the
Transferring Party. No party shall, without the prior written consent of the
other party, sell or otherwise dispose of any shares of the capital stock of
any Controlled Company that then holds any shares of any of the Joint Venture
Companies or permit any such Controlled Company to:
(i) Pledge or hypothecate any shares of any of the Joint Venture
Companies;
(ii) transfer, assign, convey or in any way alienate or otherwise
dispose of any shares of any of the Joint Venture Companies to any
person or entity other than the Transferring Party or another
Controlled Company of the Transferring Party;
(iii) issue any shares of capital stock of the Controlled Company to any
person other than the Transferring Party or another Controlled
Company of the Transferring Party; or
(iv) merge or consolidate with any person or entity other than the
Transferring Party or another Controlled Company of the
Transferring Party.
For purposes of this Section 12.01 (b), a company shall be deemed a Controlled
Company of a Transferring Party if the Transferring Company owns, directly or
indirectly, all of the capital stock of such Controlled Company.
(c ) Offer to Sell. Any sale or other disposition of shares of any
of the Joint Venture Companies, other than a transfer permitted by Section
12.01 (b) hereof shall be subject to the following limitations:
A party may not sell less than all of its shares in any Joint Venture
Company, and may not sell its shares in less than all of the Joint
Venture Companies. If a party wishes to sell its Shares in the Joint
Venture Companies (or if a party wishes to sell its shares in the Joint
Venture Companies pursuant to a bona fide third-party offer), such party
(referred to in this Section 12.01 (c ) as the "Selling Shareholder")
shall give written notice of such desire to the other party (referred to
in this Section 12.01 (c ) as the "Non-selling Shareholder"), which
notice shall contain an offer ("Offer") by the Selling Shareholder to
sell all of its shares in the Joint Venture Companies at a specified
cash price (which shall not exceed the price contained in any such
third-party offer). The Offer shall also specify, in reasonable detail,
any other terms and conditions applicable to the proposed sale of such
shares. The Non-selling Shareholder shall have an absolute and
irrevocable right, during a period of sixty days following receipt of
such notice, to make or not to make written acceptance of such Offer.
If the Non-selling Shareholder accepts such Offer, in writing, within
such sixty day period, all the Selling Party's shares in the Joint
Venture Companies shall be sold to the Non-selling Shareholder in
accordance with the provisions of Section 12.01 (d). If the Non-selling
Shareholder does not accept such Offer, in writing, within such sixty
day period the Selling Shareholder shall be free, subject to the
requirements set forth in Section 12.01 (e), to sell all of its shares
in the Joint Venture Companies at any time during the next succeeding
period of one hundred eighty days following the expiration of such sixty
day period, but not again thereafter without again complying with the
procedure set forth in this Section 12.01 (c).
(d) Purchase of Shares by Non-selling Shareholder. If an Offer by
the Selling Shareholder shall be accepted by the Non-selling Shareholder in
accordance with Section 12.01 (c) hereof, the parties shall enter into good
faith negotiations of a definitive purchase and sale agreement, and a closing
of the purchase and sale of the securities subject to the Offer shall be held
on the 90th business day (business days shall not include Saturdays, Sundays
or legal holidays in the United States or Mexico) following the date of the
Non-selling Shareholder's acceptance of the Offer or such other date as the
parties shall agree upon in writing. Such closing shall occur at the offices
of the Selling Shareholder or at any other location that the parties shall
agree to in writing. At such closing, the Selling Shareholder shall:
(i) transfer all of its shares in the Joint Venture Companies to the
Non-selling Shareholder, duly endorsed; and
(ii) pay to the appropriate government authorities, or to the Non-
selling Shareholder (for payment over to such government authorities),
any taxes or other fees or charges, payable on such transfer.
At such closing, the Non-selling Shareholder shall:
(iii) pay to the Selling Shareholder, by delivery of a certified or
bank check or by wire transfer to an account designated by the Selling
Shareholder, the contract price (as set forth in the accepted Offer) for
all of the Selling Shareholder's shares in the Joint Venture Companies;
(iv) arrange to have the Selling Shareholder relieved of its
obligations, if any, as a guarantor of any outstanding loans to the
Companies, or undertake, in writing, to indemnify the Selling
Shareholder against any and all losses and damages that the Selling
Shareholder may thereafter incur by reason of its having acted as such a
guarantor; and
(v) receive the shares duly endorsed from the Selling Shareholder.
(e) Transfer of Shares to a Third Party. In order for a valid
transfer of the Selling Shareholder's shares in the Joint Venture Companies to
be made to a purchaser other than the Non-selling Shareholder ("Third Party
Purchaser"), the following provisions of this Section 12.01 (e) must be
observed, except as otherwise provided in Section 13.04 hereof:
(i) All of the Selling Shareholder's shares in all Joint Venture
Companies must be sold to a single Third Party Purchaser.
(ii) The purchase price paid by the Third Party Purchaser must be a
cash purchase price not less than the price at which the Selling
Shareholder's Shares were offered to the Non-selling Shareholder in the
Offer, payable in U.S. Dollars, and the sale to such Third Party
Purchaser must be on terms and subject to conditions of sale not more
favorable to the Third Party Purchaser than those offered to the Non-
selling Shareholder in the Offer; and
(iii) The Selling Shareholder must, at the option of the Non-selling
Shareholder and as a condition of the closing of the sale of the shares
of the Joint Venture Companies to the Third Party Purchaser, require the
Third Party Purchaser to enter into a written agreement with the Non-
selling Shareholder embodying the same provisions as those set forth in
this Agreement.
Any purported sale of the Selling Shareholder's shares in the Joint Venture
Companies to any Third Party Purchaser without compliance with the provisions
of this Section 12 shall be null and void.
12.02 Right to Purchase.
(a) Triggering Events. In the event that:
(i) all or any portion of a party's shares in the Joint Venture
Companies should be voluntarily or involuntarily assigned to a third
party without compliance with the requirements of Section 12.01 (e)
hereof; or
(ii) a party shall (1) file, or consent by answer or otherwise to the
filing against it of, a petition for relief or reorganization or any
other petition in bankruptcy, for liquidation or to take advantage of any
bankruptcy or insolvency law of any jurisdiction, (2)make an assignment
for the benefit of its creditors, (3)consent to the appointment of, or be
subject to an order of any governmental authority of any jurisdiction
appointing, a custodian, receiver, trustee or other officer with similar
powers of such party or of any substantial part of its assets, (4)be
adjudicated insolvent or bankrupt or be subject to any order of any
governmental authority ordering the liquidation, reorganization,
dissolution or winding up of such party, be the subject of any petition
seeking the liquidation, reorganization, dissolution or winding up of
such party which is not dismissed within thirty days, or (5) take any
corporate action for any of the foregoing; or
(iii) a party shall be dissolved, all or a material portion of the
equity securities of a party shall be voluntarily or involuntarily
assigned or otherwise transferred to a third party or all or a material
portion of the assets of a party shall be assigned or otherwise
transferred to a third party;
all, but not less than all, of the shares of the Joint Venture Companies
theretofore held by such party (the "Offering Shareholder") may be purchased
by the other party (the "Non-offering Shareholder"). The right of purchase
granted in the immediately preceding sentence shall be exercised, if at all,
by written notice from the Non-offering Shareholder to the Offering
Shareholder or to the Offering Shareholder's assignee or transferee, as the
case may be, within thirty days of notice of the event giving rise to the
right to purchase (the "Offering Date"). For purposes of this Section 12.02,
the term "Offering Shareholder" shall include any assignee or transferee of
such Offering Shareholder. The price to be paid and the terms of payment for
any shares to be purchased pursuant to this Section 12.02 (a) shall be as
provided in Sections 12.02 (b) and (c) hereof.
(b) Purchase Price. When any option to purchase shares arises under
this Section 12.02 (b), the purchase price for such shares shall be the Fair
Market Value of the shares, determined as follows:
(i) By Agreement. Upon the Joint Venture Company's receipt of notice of
the Triggering Event, the Offering Shareholder and the Non-offering
Shareholder shall forthwith attempt to agree upon the Fair Market Value
of Shares.
(ii) Appraisal if no Agreement. If the Non-offering Shareholder and the
Offering Shareholder are unable to agree upon the Fair Market Value of
the shares within thirty calendar days following the exercise of any
right to purchase as provided in Section 12.02 (a), they shall within the
next thirty (30) calendar days jointly appoint one appraiser to determine
the Fair Market Value of the shares, and such appraiser shall conduct and
complete an appraisal of the Fair Market Value of the shares within
thirty (30) calendar days after his appointment. The appraiser or
appraisers shall be investment banking firms of international reputation.
If the Non-offering Shareholder and the Offering Shareholder are unable
to agree upon the identity of the appraiser to be so jointly appointed,
the Non-offering Shareholder shall promptly chose one appraiser through a
notice to the Offering Shareholder, and the Offering Shareholder shall
promptly choose one appraiser by notice to the Non-offering Shareholder.
The two appraisers so selected shall then promptly appoint a third
appraiser, and the three appraiser so selected shall conduct and complete
an appraisal of the Fair Market Value of the shares within thirty (30)
calendar days after the selection of the third appraiser. If the two
appraisers so appointed are unable to agree upon a third appraiser,
either the Non-offering Shareholder or the Offering Shareholder upon 30
days prior written notice to the other may submit the matter of
designating a third appraiser for valuing the Shares to arbitration in
accordance with Section 15 of this Agreement. The appraisers shall
attempt to reach an agreement as to the Fair Market Value of the shares,
and the agreed decision of two out of the three appraisers shall govern.
If two of the appraisers are unable to agree as to the Fair Market Value
of the shares, the values determined by each of the three appraisers
shall be added together, their total shall be divided by three, and the
resulting quotient shall be the Fair Market Value of the shares. If
however, the low appraisal and/or the high appraisal are/is more than 5%
lower and/or higher than the middle appraisal, the low appraisal and/or
the high appraisal, shall be disregarded, if only one appraisal is so
disregarded the remaining two appraisals shall be added together, their
total shall be divided by two, and the resulting quotient shall be the
Fair Market Value of the Shares. If both the low appraisal and the
high appraisal are so disregarded, the middle appraisal shall be the Fair
Market Value of the shares. The determination of the Fair Market Value
of the shares in such manner shall be conclusive for all purposes and
upon all parties.
If either the Non-offering Shareholder and the Offering Shareholder shall
fail to appoint an appraiser within thirty (30) calendar days after the
lapse of the initial thirty (30) calendar day period referred to above,
then, the appraiser appointed by the party who does appoint an appraiser
shall alone determine the Fair Market Value of the shares, and such
appraisal shall be binding.
Each party shall compensate the appraiser appointed by such party, and
the compensation of the third appraiser and the expenses of the appraiser
shall be borne equally by the Non-offering Shareholder and the Offering
Shareholder.
Neither the Offering Shareholder nor the Non-offering Shareholder shall
choose, as an appraiser pursuant to this Section 12.02, any investment
banking firm that it has retained during the preceding two-year period
and neither the Offering Shareholder nor the Non-offering Shareholder
shall, at any time during the two-year period following completion of
such appraisal procedure, retain any investment banking firm that it has
chosen as an appraiser pursuant to this Section 12.02.
(c) Terms of Payment. Payment for the shares shall be made in full
in cash at the closing of the purchase and sale thereof, by delivery of a bank
or certified check to the Offering Shareholder or by wire of good funds to a
bank account designated by the Offering Shareholder, at the option of the
Offering Shareholder. Payment shall be made in US Dollars.
(d) Closing. The closing of the purchase and sale of shares pursuant
to this Section 12 shall take place as promptly as practicable after the
determination of the purchase price for such Shares in accordance with Section
12.02 (b). Such closing shall take place at the offices of the Offering
Shareholder or any other location as agreed in writing by the parties located
as provided in Section 12.01 (d) above.
13. DEADLOCK BETWEEN THE PARTIES.
13.01 For purposes of this Article 13, Deadlock shall mean the inability
of both a majority of the Class A Directors and Class B Directors of any
Joint Venture Company and/or an inability of the shareholders of any Joint
Venture Company, to reach an agreement on any matter coming before such board
of directors and/or such shareholders meeting, as the case may be, for a vote.
13.02 If a Deadlock shall occur, GIRSA or Uniroyal may submit a memorandum
to the other party, in accordance with the notice provisions of Section 14.01
hereof, stating its position. Such memorandum shall be considered by the
Chairman of the Board of GIRSA's parent company and the Chairman of the Board
of Uniroyal's parent company (each a "Senior Officer"). Within twenty
business days of receipt of such memorandum by the recipient, such Senior
Officers shall meet to negotiate in good faith a mutually satisfactory
resolution of the Deadlock.
13.03 If such Senior Officers are not able to reach a satisfactory
resolution of the Deadlock within thirty business days of such meeting, then
the parties shall seek, in good faith, to mediate a resolution of the Deadlock
with a mediator that is mutually agreeable to the parties or, if the parties
shall be unable to agree upon a mediator, a mediator appointed by the
International Chamber of Commerce.
13.04 In the event that the Deadlock shall continue for more than six
months after the commencement of the mediation, then (a) GIRSA and Uniroyal
may seek to agree upon a price at which GIRSA or Uniroyal may purchase the
other party's stock in the Joint Venture Companies directly or through any of
their affiliates or (b) GIRSA or Uniroyal may, with the previous written
agreement of the other, which shall not be unreasonably withheld, retain a
preeminent investment banking firm of international reputation to solicit bids
from any responsible prospective purchaser for all of the issued and
outstanding stock of all of the Joint Venture Companies. GIRSA and Uniroyal
shall be equally responsible for the fees and expenses of the investment
banking firm and for any other costs of the sale of such stock. GIRSA and
Uniroyal or any of their affiliates may bid for such stock. Both parties
shall be obligated to sell their stock in all of the Joint Venture Companies
to the highest responsible bidder and the net proceeds of such sale shall be
divided equally between GIRSA and Uniroyal Chemical; except that in the event
GIRSA or any related party of GIRSA, or Uniroyal or any related party of
Uniroyal is the successful bidder for the stock of the Joint Venture
Companies, such party shall retain its own stock in the Joint Venture
Companies and shall purchase the other party's stock in the Joint Venture
Companies for a price equal to fifty percent (50%) of the bidding party's bid
for all of the issued and outstanding stock of the Joint Venture Companies.
In the event of a sale of the stock of the Joint Venture Companies, in
accordance with this Section 13.04, this Agreement shall terminate; provided,
however, that the Related Agreements referred to in Sections, 3, 4, 5 and 6
hereunder, shall remain in full force and effect, and each party shall be
obligated to honor its contractual obligations under said Related Agreements
to which it is a party, in accordance with the terms of such agreements.
13.05 The provisions set forth in this Article 13 shall be the exclusive
method of resolving a Deadlock as to the Joint Venture. The parties agree not
to invoke any judicial or other procedure for resolution of Deadlock between
or among shareholders or directors that may be available under any corporation
law applicable to any Joint Venture Company and the parties agree and consent
that if either party shall invoke any such procedure in violation of this
Section 13.05, GIRSA or Uniroyal shall be entitled to enforce this Section
13.05 by an action for specific performance, injunctive relief or other
similar legal or equitable relief.
14. NOTICES
14.01 All notices, requests, demands, directions and other communications
required or permitted to be given hereunder shall be in writing and mailed,
postage-prepaid, first class certified mail, or delivered by hand or by
overnight courier service to the applicable party at the address indicated
below:
If to Uniroyal Chemical:
Uniroyal Chemical Company, Inc.
World Headquarters
Benson Road
Middlebury, Connecticut 06749
Attention: Executive Vice President, Chemicals and Polymers
with a copy to:
Uniroyal Chemical Company, Inc.
World Headquarters
Benson Road
Middlebury, Connecticut 06749
Attention: General Counsel
If to GIRSA:
GIRSA S.A. de C.V.
Paseo de los Tamarindos No. 400 B, Piso 31
Bosque de las Lomas
Mexico, D.F.
Attention: Managing Director
with a copy to:
GIRSA S.A. de C.V.
Paseo de los Tamarindos No. 400 B, Piso 31
Bosque de las Lomas
Mexico, D.F.
Attention: General Counsel
Either party may change the address to which notice is to be directed to it by
giving written notice to the other party in accordance with the terms of this
Section 14.01.
15. ARBITRATION.
15.01 Disputes. Any controversy, dispute, difference or claim ("Dispute")
other than any Deadlock and other than the enforcement of any right under
Section 13.05, arising out of or relating to this Agreement which cannot be
resolved by mutual agreement between the parties within a period of thirty
(30) days from the commencement of the Dispute and the resolution of any
default or breach provided for in Section 11.01, shall be settled finally by
arbitration in accordance with the Rules of Conciliation and Arbitration (the
"Rules") of the International Chamber of Commerce ("ICC").
In making their decision, the arbitrators shall not assess damages against the
parties, except in the case of (a) the provisions of Section 10.06; or (b)
such party's gross negligence or willful misconduct in which event,
arbitrators shall not assess indirect or consequential damages.
15.02 Arbitration Panel. The arbitration shall be conducted by three
arbitrators appointed in accordance with the Rules. Exclusively GIRSA or
Uniroyal may commence arbitration by filing a demand for arbitration
("Demand") with the Secretariat of the Court of Arbitration (the "Court of
Arbitration") of the ICC, and sending a copy of such demand to the other party
in accordance with Section 14 of this Agreement. The Demand shall designate
the arbitrator selected by the party filing the Demand. Within fifteen (15)
days thereafter, the other party shall designate a second arbitrator by
written notice to the first party in accordance with Section 14 of this
Agreement. The two arbitrators thus designated shall, within fifteen (15)
days thereafter, select a neutral third arbitrator. In the event that the
second or third arbitrator is not designated or selected within the period
specified, such arbitrator shall be appointed by the Court of Arbitration.
15.03 Rules and Governing Law. The arbitrators shall determine what rules
shall be applicable to those aspects of the proceedings as to which the Rules
may be silent and shall conduct the arbitration proceedings in accordance with
such procedural rules as they may establish. In deciding the merits of the
Dispute the arbitrators shall first apply the provisions of this Agreement and
then, if necessary, the laws of Mexico D.F., Mexico (if the arbitration takes
place in Mexico City, Mexico as provided for in Section 15.05) or the laws of
the State of Connecticut, U.S.A. (if the arbitration takes place in Waterbury,
Connecticut, U.S.A. as provided for in Section 15.05).
15.04 Substitution of Arbitrator. If, for any reason, an arbitrator,
after having accepted appointment as such, is unwilling or unable to enter
upon and complete the determination of the Dispute, then, within fifteen (15)
days of the receipt of notice of the arbitrator's withdrawal, a substitute
shall be appointed in accordance with the procedures established herein and in
the Rules.
15.05 Place and time of Arbitration. The place of arbitration shall be
determined as follows:
(a) If the party filing the Demand is Uniroyal, the place of
arbitration shall be Mexico City, Mexico.
(b) If the party filing the Demand is GIRSA, the place of arbitration
shall be Waterbury, Connecticut, U.S.A.
The arbitrators shall fix the date, time and location of the hearing, which
shall commence within thirty (30) days after the date the parties receive
notice of the appointment of the third arbitrator.
15.06 Language. The arbitration hearing shall be conducted in the
official language of the country in which the arbitration is taking place, and
if a translator or interpreter is required, the party needing such translator
or interpreter shall provide one at its own expense.
15.07 Absence of a Party. In the event that GIRSA or Uniroyal fails to
submit to arbitration or fails to appear at the date, time or location
designated for the arbitration the arbitrators will, providing that such party
has received notice of the arbitration and the opportunity to present its
case, proceed with the arbitration in the absence of such party and will
render their decision on the basis of the documents and evidence presented to
them.
15.08 Decisions. The decision of the arbitrators shall be determined by
the majority, and the parties shall be bound by the decision of the
arbitrators, who shall communicate such decision to the parties within thirty
(30) days of the closing of the hearing and shall, within thirty days
thereafter, provide the parties with a written opinion stating the reasons for
their decision.
15.09 Finality. The arbitration award shall be final and not subject to
appeal. Judgment upon such award may be entered for execution in any court of
competent jurisdiction, or application may be made to such a court for
judicial acceptance of such award and an order of enforcement.
15.10 Actions Pending Arbitration. During the period commencing the day
the Demand is filed with the ICC until the award is made by the arbitrators,
the party filing the Demand shall not, and during the period commencing the
day the party not filing the Demand receives the copy thereof as hereinabove
provided until the award is made by the arbitrators, such party not filing the
Demand shall not, take any action that would fundamentally change the
situation with respect to the subject matter of the Demand in a way that would
prejudice the other party. Notwithstanding any other rights that either party
may have, pending the resolution of any Dispute, this Agreement shall remain
in full force and effect in accordance with its terms and the parties shall
continue to fulfill their obligations hereunder.
15.11 Fees and Expenses. The fees and expenses of the arbitrators shall
be shared equally by GIRSA and Uniroyal, each of which shall, if the ICC so
demands, submit an advance deposit, in U.S. Dollars, to the ICC in such amount
as the ICC shall determine. If such deposit shall, in the aggregate, exceed
the fees and expenses of the arbitrators, the excess shall be equally divided
and half shall be returned to each of the parties.
15.12 Attorney's Fees. The arbitrators shall have the authority, in their
discretion, to award attorney's fees to the party determined by them to be
free from fault.
16. GENERAL
16.01 Entire Agreement. This Agreement and the Related Agreements set
forth the entire agreement and understanding of the parties in respect of the
transactions contemplated hereby and thereby, and supersede all prior
agreements, arrangements and understandings relating to the subject matter
hereof and thereof. No representation, promise, inducement or statement of
intention has been made by either party with respect to the subject matter
hereof and thereof that is not set forth in this Agreement or the Related
Agreements. No Party shall be bound by or liable for any alleged
representation, promise, inducement or statement of intention not so set
forth.
16.02 Partial Invalidity. The determination by any judicial authority of
competent jurisdiction that any term or provision of this Agreement is void or
unenforceable shall not affect the validity or enforceability of the remaining
provisions of this Agreement.
16.03 Amendments. This Agreement may be amended, modified, superseded or
canceled, and any of the provisions hereof may be waived, only by a written
instrument executed by the parties, or in the case of a waiver, by the party
waiving compliance. The failure of either party at any time or times to
require performance of any provision hereof shall in no manner affect its
right at a later time to enforce the same. No waiver by either party of any
provision, or of the breach of any provision contained in this Agreement, in
any one or more instances, shall be deemed to be or construed as a further or
continuing waiver of any such provision or breach or a waiver of any other
provision or of the breach of any other provision of this Agreement.
16.04 Assignment. Without the unanimous written consent of both parties,
none of the parties shall sell assign or otherwise transfer any of his rights
in this Agreement. Any purported assignment in violation of this provision
shall be void and of no force or effect.
16.05 Execution in Counterparts. This Agreement may be executed in one or
more counterparts, each of which may be executed by one or more of the parties
hereto, with the same force as though all persons who executed such
counterparts had executed but one instrument, but all such counterparts shall
comprise one and the same agreement.
16.06 Headings. Section headings in this Agreement are included herein
for convenient reference only and shall not in any way affect the meaning of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their duly authorized representatives as of the date first
above written.
"UNIROYAL CHEMICAL"
"UNIROYAL" "NOVAQUIM"
UNIROYAL CHEMICAL COMPANY, INC. NOVAQUIM HOLDINGS, S.A. DE C.V.
/s/Joseph B. Eisenberg /s/Joseph B. Eisenberg
By: Joseph B. Eisenberg By: Joseph B. Eisenberg
Title: Executive Vice President Title: President
Dated: September 18, 1998 Dated: September 18, 1998
"GIRSA"
GIRSA S.A. de C.V.
/s/Enrique Ochoa
By: Enrique R. Ochoa Vega
Title: Managing Director
Dated: September 18, 1998
EXHIBIT "A"
The By-laws of the Manufacturing Company
EXHIBIT "B"
The Certificate of Incorporation and By-laws of the Marketing Company
EXHIBIT "C-1"
Batch processing manufacturing machinery and equipment for the production of
NBR Products located at GIRSA's Facilities.
EXHIBIT "C-2"
Additional machinery and equipment for the production of NBR Products
to be acquired by INSA.
EXHIBIT "D"
The batch polymerization reactors, French press, P&S dryer and related
machinery and equipment for the production [and testing] of NBR Products
located at Uniroyal's NBR Products manufacturing facilities at Painesville,
Ohio, U.S.A. [and certain Research and Development equipment in Connecticut].
EXHIBIT "E"
Intangible property owned by Uniroyal applicable to the production and
marketing of NBR Products.
EXHIBIT "F"
Instruments of irrevocable assignment, for the free and exclusive use on a
worldwide basis, of assets to be contributed by Uniroyal to the capital of
Marketing Company.
EXHIBIT "G"
Project Manual
EXHIBIT "H"
Initial Capital Projects.
EXHIBIT "I"
Operating Services Agreement
EXHIBIT "J"
The Sales Services Agreement
EXHIBIT "K"
License Agreement
EXHIBIT "L"
The NBR Products Supply Agreement
EXHIBIT "M-1"
The GIRSA Corporate Services Agreement
EXHIBIT "M-2"
The Uniroyal Corporate Services Agreement
EXHIBIT "N"
Authorization, consent, approval or waiver from, or to make any filing with,
any public body or authority or any other person or entity required to be
carried out by the parties.
1. Registration of Manufacturing Company before the Mexican Foreign
Investment Registry.
2. Registration of Marketing Company and/or GIRSA before the U.S.
authorities on Foreign Investment.
3. Registration of Technology License Agreement before the IMPI and US
authorities.
4. Filing and/or registration of intangible property assignments and
licenses before the corresponding authorities in countries required.