EXHIBIT 4.26
OWNERS' AGREEMENT
THIS AGREEMENT made effective the 1st day of October, 2001.
AMONG:
GLAMIOX BETEILIGUNGSVERWALTUNGS GMBH, a body corporate
organized under the laws of Austria and having an address at
c/o Deloitte & Touche GmbH, Friedrichstrasse 10, A-1010
Vienna, Austria
AND:
JURRIAAN J. HOVIS, a businessperson having a residential
address at Schoenbrunner Graben 94, 1180 Vienna, Austria
AND:
FERDINAND STEINBAUER, a businessperson having a residential
address at Augasse 6, 8101 Gratkorn, Austria
AND:
GARDA INVESTMENTS CORP., a body corporate organized under the
laws of the British Virgin Islands and having an address at
c/o 1000 - 925 West Georgia Street, Vancouver, British
Columbia, Canada, V6C 3L2
WHEREAS:
A. The Capital of Holdco II consists of Euro 35,000 and is currently owned by
Holdco I, and the Shareholders of Holdco II as at the date of the completion of
the Hovis Reorganization (as such term is defined in the Investment and
Restructuring Agreement) will be as follows:
NAME OWNED CAPITAL
---- -------------
Holdco I Euro 33,425
JJHovis Euro 1,400
Steinbauer Euro 175
B. The parties wish to work closely together with respect to the operations of
Holdco II and Hovis; and
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C. The Shareholders wish to establish their respective rights and obligations
with respect to: (i) the Capital of Holdco II owned and to be owned by each of
them; (ii) the management and control of Holdco II and Hovis; and (iii) other
matters relating to Holdco II, Hovis and the subsidiaries of Hovis, all as set
forth in this Agreement.
NOW THEREFORE THIS AGREEMENT WITNESSES that the parties hereto acknowledge,
declare, covenant and agree as follows:
ARTICLE 1 - DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS. In this Agreement, and in the recitals, unless something in the
subject matter or context is inconsistent therewith, the following capitalized
words and terms shall have the following meanings, respectively:
(a) "ACT OF INSOLVENCY" means, when used in relation to a
Shareholder, that without the prior written consent of all of
the other Shareholders:
(i) the Shareholder becomes bankrupt or, as an insolvent
debtor, takes the benefit of any legislation now or
hereafter in force for bankrupt or insolvent debtors;
(ii) a receiver or other officer with like powers is
appointed for the Shareholder for the substantial
part of the assets of the Shareholder unless the
appointment of such receiver or other officer with
like powers is being disputed in good faith by
appropriate proceedings and such proceedings
effectively postpone enforcement of such appointment;
or
(iii) a resolution is passed or an order is made or a
petition is filed for the cancellation, dissolution,
liquidation, revocation or winding-up of a
Shareholder, unless such action is being disputed in
good faith by appropriate proceedings and such
proceedings effectively postpone enforcement of the
action,
provided that an Act of Insolvency shall be deemed not to have
occurred if such Act of Insolvency occurs through the failure
of any of the other Shareholders to perform its obligations
hereunder;
(b) "AGREEMENT" means this owners' agreement made effective
October 1, 2001 among Holdco II, JJHovis, Steinbauer and
Holdco I, including all schedules hereto, as amended from time
to time;
(c) "BOARD" means the managing directors of Holdco II or Hovis, as
applicable, as may be appointed from time to time by
resolution of the Shareholders (Vorstand, within the meaning
of Sections 15-28 of the GmbHG);
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(d) "BUSINESS DAY" means any day on which banks are open for
business in Vienna, Austria;
(e) "CAPITAL" means the nominal share capital of Holdco II and,
with respect to each Shareholder, means the Capital of such
Shareholder in Holdco II;
(f) "EARN IN PERIOD" means the period during which JJHovis and/or
Steinbauer are entitled to the earn in of Capital pursuant to
the terms of Schedule "A" to the Investment and Restructuring
Agreement. For greater certainty, the Earn In Period shall
end, inter alia, upon any event that results in the
termination of the entitlement to the earn in of Capital
pursuant to the terms of Schedule "A" to the Investment and
Restructuring Agreement;
(g) "FIRMENBUCH" means the commercial register maintained by the
court in Vienna;
(h) "GAAP" means generally accepted accounting principles in the
United States consistently applied, that are in effect from
time to time;
(i) "GMBHG" means the Austrian Limited Liability Companies Act, as
amended, supplemented or restated from time to time; provided
that a reference to a specific section of the GmbHG is made to
the section of the GmbHG in effect as of the date of this
Agreement;
(j) "GOVERNMENTAL APPROVAL" means the consent of any Governmental
Authority which may be required at any time and from time to
time to ensure that the acquisition of the Capital of a
Shareholder is not in contravention of any law, regulation or
published policy of, or administered by, such Governmental
Authority or which may be required in order to ensure that,
notwithstanding the purchase of the Capital of a Shareholder,
the holding or continued holding by Holdco II of any
franchise, licence, permit or other permission or authority
required to carry on its business is unaffected;
(k) "GOVERNMENTAL AUTHORITY" means any legislative, executive,
judicial or administrative body, court or person whether
federal, state or local and any governmental authority,
governmental tribunal or governmental commission of any kind
whatsoever having jurisdiction in the relevant circumstances;
(l) "HOLDCO I" means Garda Investments Corp.;
(m) "HOLDCO II" means Glamiox Beteiligungsverwaltungs GmbH;
(n) "HOVIS" means Hovis GmbH, a body corporate organized under the
laws of Austria;
(o) "HOVIS GROUP" has the meaning ascribed thereto in the
Investment and Restructuring Agreement;
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(p) "IMPORTANT REASONS" means any Act of Insolvency, any seizure
of Capital if such seizure remains uncured as set forth in
Section 7.1(d) of this Agreement, important reasons with
respect to any Shareholder (wichtiger Grund in der Person des
Gesellschafters) within the meaning of German law and any
foreclosure in respect of a Shareholder (Ausschluss aus der
Gesellschaft);
(q) "INFORMATION" means any and all information in respect of
Holdco II and Hovis furnished by any of the parties hereto to
another, and, where applicable, to its respective directors,
officers, employees, agents or representatives in any and all
analyses, compilations, data studies or other documents,
whether in oral or written form or on computer disks or other
forms of electronic storage, prepared by any of the parties
hereto or its respective representatives containing or based
upon any such information;
(r) "INVESTMENT AND RESTRUCTURING AGREEMENT" means an investment
and restructuring agreement dated for reference October 1,
2001 among Sutton Park International Limited, Holdco I, MFC,
Holdco II, Hovis GmbH, JJHovis, Johannes Hovis and Steinbauer
whereby, among other things, the Shareholders agreed to
subscribe for and purchase Capital of Holdco II on the terms
and conditions set out therein;
(s) "JJHOVIS" means Jurriaan J. Hovis;
(t) "MAJOR SHAREHOLDER" means Holdco I;
(u) "MANAGING DIRECTOR" means a person appointed as a managing
director of Holdco II or Hovis, as applicable, by resolution
of the Shareholders;
(v) "MFC" means MFC Bancorp Ltd., a body corporate organized under
the laws of the Yukon Territory in Canada;
(w) "NOMINEE" means a person nominated for appointment as a
managing director of Holdco II or Hovis, as applicable,
pursuant to the terms of this Agreement and who, upon
nomination, is appointed as a managing director by resolution
of the Shareholders;
(x) "PERMITTED TRANSFEREE" means, in respect of any Shareholder:
(i) a body corporate of which such Shareholder is the
sole owner;
(ii) a trust of which such Shareholder is the sole
beneficiary; or
(iii) any person who is the sole owner of such Shareholder.
(y) "PERSON" includes an individual, sole proprietorship,
partnership, unincorporated association, unincorporated
syndicate, unincorporated organization, trust, body
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corporate, and a natural person in his capacity as trustee,
executor, administrator or other legal representative;
(z) "PROKURIST" means a person appointed as a Prokurist (within
the meaning of Austrian law) of Holdco II or Hovis, as
applicable;
(aa) "RULES OF PROCEDURE" means, for Holdco II, the rules of
procedure of Holdco II in substantially the form as set forth
in Schedule "A" hereto and, for Hovis and any company in the
Hovis Group, rules of procedure in substantially the same form
as set forth in Schedule "A" hereto;
(bb) "SHAREHOLDER" means any person who from time to time owns
Capital in Holdco II and is bound by the provisions of this
Agreement and the articles of association
(Gesellschaftsvertrag) of Holdco II, the Shareholders as at
the date of the completion of the Hovis Reorganization (as
such term is defined in the Investment and Restructuring
Agreement) being Holdco I, JJHovis and Steinbauer;
(cc) "STEINBAUER" means Ferdinand Steinbauer; and
(dd) "TRIGGERING EVENT" has the meaning ascribed thereto in Section
7.1 hereof.
ARTICLE 2 - COVENANTS
2.1 VOTING TO GIVE EFFECT TO AGREEMENT. The Shareholders shall exercise all of
their voting rights with respect to the Capital and other powers of control
available to them in relation to Holdco II, Hovis and the Hovis Group in order
to give full effect to this Agreement and ensure that the affairs of Holdco II,
Hovis and the Hovis Group are conducted pursuant to the terms hereof.
2.2 ARTICLES OF ASSOCIATION (GESELLSCHAFTSVERTRAG). The articles of association
(Gesellschaftsvertrag) of Holdco II, Hovis and/or the Hovis Group, as
applicable, shall be amended, as required, to conform to and comply with the
terms of this Agreement. The articles of association (Gesellschaftsvertrag) of
Holdco II shall, inter alia:
(a) provide for the possibility of dividing shares as required by
Section 79(1) of the GmbHG;
(b) contain a provision whereby the Shareholders may make
distributions other than pro rata to the respective percentage
of the nominal share capital of Holdco II (such latter
provision translated into German as: "Die Gesellschafter
koennen von ihren Geschaeftsanteilen an der Gesellschaft
abweichende Gewinnausschuettungen beschliessen"); and
(c) provide for the compulsory forfeiture of Capital by a
Shareholder upon the occurrence or existence of any Important
Reasons with respect to such Shareholder.
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2.3 DISTRIBUTIONS OF FREE CAPITAL RESERVES (UNGEBUNDENE KAPITALRUECKLAGEN). The
parties agree that any future distributions of free capital reserves
(ungebundene Kapitalruecklagen) of Holdco II in excess of retained earnings
(i.e., profit reserves) of Holdco II up to the aggregate amount of contributions
to the free capital reserves (ungebundene Kapitalruecklagen) directly or
indirectly (e.g., including grandfather contributions) made by Shareholders,
including any distribution of such free capital reserves (ungebundene
Kapitalruecklagen) when distributing liquidation proceeds or when making
payments in the course of a decrease of the share capital, will be made pro rata
to the amounts contributed by the Shareholders or any shareholder thereof to the
free capital reserves (ungebundene Kapitalruecklagen) of Holdco II prior to such
distributions. The same shall apply in the case of a sale of all of the share
capital of Holdco II, in which event the proceeds of the sale, up to the
aggregate amount of contributions to the free capital reserves (ungebundene
Kapitalruecklagen) directly or indirectly (e.g., including grandfather
contributions) made by Shareholders, will be allocated first pro rata to those
Shareholders who directly or indirectly (e.g., including grandfather
contributions) contributed to the free capital reserves (ungebundene
Kapitalruecklagen) of Holdco II. For greater certainty, the transfer of capital
of Hovis to Holdco II pursuant to the terms of the Investment and Restructuring
Agreement is not considered to be a contribution to the free capital reserves
(ungebundene Kapitalruecklagen) within the context of this Section 2.3.
2.4 DISTRIBUTION OF PROCEEDS. In the event of the distribution of capital of
Holdco II during the Earn In Period when distributing liquidation proceeds or
making payments in the course of a decrease of the share capital with respect to
Holdco II, such distribution, after making the distributions of free capital
reserves (ungebundene Kapitalruecklagen) pursuant to Section 2.3 hereof, shall
be made pro rata to the Capital of Holdco II owned by the Shareholders; provided
that, for the purpose of such distribution, JJHovis and Steinbauer shall be
deemed to own the percentage of the Capital of Holdco II derived by giving
effect to the percentage of the maximum earn in of Capital achieved by JJHovis
and Steinbauer pursuant to Sections 2.2 and 2.3 of Schedule "A" to the
Investment and Restructuring Agreement calculated by dividing the Consolidated
Holdco II Net Worth (as such term is defined in Schedule "A" to the Investment
and Restructuring Agreement) on the date of assessment of the proceeds of such
distribution by Euro 23,500,000.
2.5 DISTRIBUTION OF SPECIFIC CONTRIBUTION. JJHovis and Steinbauer each hereby
acknowledge and agree that the 100% shareholder of Holdco I has contributed or
will contribute Euro 7,965,000 to the free capital reserves (ungebundene
Kapitalruecklagen) of Holdco II on or before the Closing Date (as such term is
defined in the Investment and Restructuring Agreement), which has been or will
be allocated to the capital reserve account of Holdco II. JJHovis and Steinbauer
each hereby covenant and agree to vote in favour of and entirely for the benefit
of Holdco I in respect of all resolutions concerning the distribution of free
capital reserves (ungebundene Kapitalruecklagen) amounting to Euro 7,965,000, in
excess of retained earnings, to Holdco I, provided such resolutions are not
passed prior to the earlier of: (i) the termination of the Target Period (as
such term is defined in Schedule"A" to the Investment and Restructuring
Agreement); or (ii) any earn in of Capital being effected pursuant to Sections
2.2 and 2.3 of Schedule "A" to the Investment and
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Restructuring Agreement prior to the termination of the Target Period (as such
term is defined in Schedule "A" to the Investment and Restructuring Agreement),
and each of JJHovis and Steinbauer hereby irrevocably constitutes and appoints
Holdco I and any other person appointed by Holdco I as its true and lawful
attorney-in-fact and agent for, in the name of and on behalf of each of JJHovis
and Steinbauer, to act and vote and otherwise exercise all powers exercisable
with respect to any approval of the Shareholders required under this Section 2.5
or take part in or consent to any such Shareholders' action, and when so acting
or refraining from acting, neither Holdco I nor any person appointed by Holdco I
shall incur any liability or responsibility of any kind whatsoever to JJHovis or
Steinbauer. In addition, JJHovis and Steinbauer each hereby jointly and
severally covenant and agree to deliver to Holdco I, on or prior to the Closing
Date (as such term is defined in the Investment and Restructuring Agreement), a
letter substantially in the form as set forth in Schedule "C" hereto. For
greater certainty, Holdco I covenants and agrees that, it will not, prior to the
earlier of the dates in (i) and (ii) above, and unless otherwise specifically
contemplated pursuant to the terms of this Agreement, act or vote to distribute
in its favour the Euro 7,965,000 contribution to the free capital reserves
(ungebundene Kapitalruecklagen) of Holdco II referred to above.
2.6 EXAMINATION BY SHAREHOLDERS. The Shareholders shall be permitted to examine
the books, accounts and other records of Holdco II, Hovis and the Hovis Group
during normal business hours and shall be provided at least monthly all relative
or substantial information including interim management reports, operating
reports, trading reports, financial reports and such other information as they
may reasonably require to keep them properly advised about the business and
prospects of Holdco II, Hovis and the Hovis Group.
2.7 NOMINEES AND PROKURISTS. Holdco I, JJHovis and Steinbauer each severally
covenants and agrees to ensure that its Nominees and its Prokurists shall
operate in accordance with and to give effect to the terms of this Agreement,
the Rules of Procedure and the articles of association (Gesellschaftsvertrag) of
Holdco II, Hovis and the Hovis Group.
2.8 SURVIVAL. The covenants, representations and warranties contained in this
Agreement shall survive the execution and delivery of this Agreement and,
notwithstanding such execution and delivery and regardless of any investigation
made by or on behalf of any party hereto with respect thereto, shall continue in
full force and effect for the benefit of each party hereto to which such
covenants, representations and warranties were made until the expiry of three
years following the termination of this Agreement.
ARTICLE 3 - MANAGEMENT OF HOLDCO II AND HOVIS
3.1 ADOPTION OF RULES OF PROCEDURE. The Shareholders covenant to adopt the Rules
of Procedure for Holdco II and to cause Hovis and each company in the Hovis
Group to adopt Rules of Procedure as soon as practicable following the entering
into of this Agreement and all future managing directors and Prokurists shall be
bound by the inclusion of a reference to the Rules of Procedure and the articles
of association (Gesellschaftsvertrag) of Holdco II, Hovis and the Hovis Group in
their appointment and in their service and/or employment contracts.
3.2 BOARD. Subject to the terms of this Agreement, the business and affairs of
Holdco II and Hovis shall be managed by their respective managing directors. The
Board shall consist of such
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Nominees as certain Shareholders may nominate and as the Shareholders shall
appoint from time to time in accordance with the provisions of this Article 3.
Other than from time to time as agreed upon by the Shareholders of Holdco II or
the Shareholders of Hovis with respect to the day-to-day business of Holdco II
and Hovis, respectively, or other than as set forth in this Agreement, the Rules
of Procedure or the articles of association (Gesellschaftsvertrag) of Holdco II
and/or Hovis, decisions of the Board shall require the unanimous consent of all
of the managing directors. In the event the managing directors are not able to
reach such unanimous consent, where required, each managing director is entitled
to refer a matter to the decision of the Major Shareholder, which decision shall
be binding on the managing directors. The non compliance of a managing director
with such decision is considered an important reason (wichtiger Grund) for
removal as managing director. Regardless of such internal rules, the powers of
the managing directors to represent and to legally bind Holdco II and/or Hovis,
as applicable, are set forth in Section 3.3 hereof.
3.3 NOMINEES, COMPOSITION OF BOARD AND POWER OF REPRESENTATION
(VERTRETUNGSBEFUGNIS). During the Earn In Period, JJHovis and Steinbauer shall
each be entitled to nominate and appoint one Nominee to the Board of Holdco II
and, directly or indirectly, one Nominee to the Board of Hovis. Holdco I shall,
at any time, be entitled to nominate and appoint any number of Nominees to the
Board of Holdco II and, directly or indirectly, to the Board of Hovis. The
Nominees shall be appointed by way of resolutions of the Shareholders of Holdco
II and by resolutions of the shareholder of Hovis, respectively. However, any
person to be appointed as a Nominee must be fit and proper and shall not be
likely to act contrary to the best interests of Holdco II, Hovis and/or the
Hovis Group. In particular with regard to Section 18 of the GmbHG, the parties
hereto agree to the following general and specific rules of representation:
(a) Holdco II and Hovis shall be legally represented by one or
more managing directors, or one managing director together
with a Prokurist; provided that, in the event more than one
managing director of Holdco II and/or Hovis is appointed, a
Nominee nominated by JJHovis and/or Steinbauer shall only be
entitled to represent Holdco II or Hovis, as applicable,
together with a Nominee or a Prokurist nominated by Holdco I
and, except as set forth in (b) below, vice versa (i.e., two
signatures);
(b) Notwithstanding the foregoing, any Nominee nominated by Holdco
I for the Board of Holdco II or directly or indirectly for the
Board of Hovis who is also the President or a Vice-President
of MFC, shall be entitled, in principle, to act alone only:
(i) in the event that the Board does not comply with
decisions, orders and/or instructions of the Shareholders
owning a majority of the outstanding Capital and/or
resolutions adopted at a meeting of Shareholders; (ii) in the
event of urgent matters material for Holdco II and/or Hovis,
as applicable, which require immediate attention; or (iii) in
the event that neither JJHovis nor Steinbauer has nominated
any Nominees to the Board; and
(c) When appointing Nominees, the afore-mentioned powers shall be
registered in the Firmenbuch.
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To the extent possible, the rules, procedures and concepts set forth above in
this Section 3.3 shall also apply, with any necessary modifications, to the
management of each of the companies in the Hovis Group.
3.4 APPOINTMENT OF INITIAL NOMINEES. The following individuals shall initially
be nominated by the following Shareholders and initially be appointed as the
Nominees to the Boards of Holdco II and Hovis by resolution of the Shareholders
of Holdco II and the shareholder of Hovis, respectively:
HOLDCO II
NAME OF SHAREHOLDER NAME OF NOMINEE
------------------- ---------------
Holdco I Michael Smith
Claudio Morandi
James Carter
JJHovis Jurriaan J. Hovis
Steinbauer Ferdinand Steinbauer
HOVIS
- -----
NAME OF SHAREHOLDER NAME OF NOMINEE
------------------- ---------------
Holdco I Michael Smith
Claudio Morandi
James Carter
JJHovis Jurriaan J. Hovis
Steinbauer Ferdinand Steinbauer
3.5 APPOINTMENT OF PROKURISTS. Holdco I, JJHovis and Steinbauer and/or their
Nominees of Holdco I shall be entitled to nominate Prokurists for each of Holdco
II and Hovis and the Shareholders and/or the Nominees, as applicable, shall
appoint such nominated Prokurists. The Prokurists nominated by Holdco I or a
Nominee of Holdco I and appointed as Prokurists shall be conferred the powers
required under Section 18(3) of the GmbHG. Any Prokurist nominated by JJHovis
and/or Steinbauer and/or a Nominee of JJHovis and/or Steinbauer shall be
conferred the power to represent Holdco II or Hovis only together with a Nominee
of Holdco I. The powers of any existing Prokurist(s) of Holdco II and/or Hovis,
as applicable, shall be amended or restricted such that they can represent
Holdco II and/or Hovis only together with a Nominee nominated by Holdco I.
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3.6 MANAGING DIRECTORS AND PROKURISTS TO ACT IN BEST INTERESTS. Each managing
director and each Prokurist in exercising his powers and discharging his duties
shall act honestly and in good faith with a view to the best interests of Holdco
II and/or Hovis, as applicable, and exercise the care, diligence and skill that
a reasonably prudent person would exercise in comparable circumstances. Any acts
mentioned in Section 18(4) of the GmbHG shall be notified immediately to all
managing directors.
3.7 DISCLOSURE OF CONFLICTS OF INTERESTS. A managing director of the Board of
Holdco II and/or Hovis (the "Executive") who is a party to a material contract
or proposed material contract with Holdco II and/or Hovis and/or any of their
subsidiaries (a "Material Contract") or is a director, officer or senior manager
of, or has a material interest in any person who is a party to a Material
Contract shall promptly, fully and frankly disclose in writing to Holdco II
and/or Hovis, as applicable, or request to have entered in the minutes of
meetings of the Board, the nature and extent of his interest.
3.8 RESTRICTION OF POWERS OF BOARD. To the extent that this Agreement, the Rules
of Procedure or the articles of association (Gesellschaftsvertrag) of Holdco II
or Hovis, as applicable, specifies that any matters may only be or shall be
dealt with or approved by or shall require action by the Shareholders, the
discretion and powers of the Board to manage and to supervise the management of
the business and affairs of Holdco II and/or Hovis, as applicable, with respect
to such matters are correspondingly restricted.
3.9 REMOVAL OF MANAGING DIRECTORS. Each Shareholder shall at any time and from
time to time be entitled to request the removal as a managing director of a
Nominee nominated to the Board by such Shareholder. Such managing directors
shall be removed as managing directors by resolutions of the Shareholders of
Holdco II and by resolutions of the shareholder of Hovis, respectively.
ARTICLE 4 - OPERATION AND FINANCE
4.1 BANK ACCOUNTS. Holdco II and Hovis shall maintain bank accounts at such bank
or trust company as its respective Board shall from time to time determine. All
bank accounts shall be kept in the name of Holdco II or Hovis, as applicable,
and all cheques, bills, notes, drafts or other instruments shall require the
signatures of such individuals as its respective Board may from time to time
determine.
4.2 ACCOUNTING RECORDS. Proper books of account shall be kept by Holdco II and
Hovis and entries shall be made therein of all matters, terms, transactions and
things as are usually written and entered into books of account in accordance
with GAAP and each of the parties hereto shall at all times furnish to the
others correct information, accounts and statements of and concerning all
transactions pertaining to Holdco II and Hovis without any concealment or
suppression. Within sixty (60) days of the end of the fiscal year of Holdco II
and Hovis, the books and accounts and the annual financial statements of Holdco
II shall be prepared in accordance with GAAP and audited and certified by an
internationally recognized accounting firm and thereupon be submitted to the
Board of Holdco II for submission to the Shareholders' meeting.
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4.3 ADDITIONAL BORROWING. The parties hereto agree that all funds required for
the purposes of Holdco II, Hovis and/or the Hovis Group shall be obtained, to
the greatest extent possible, by borrowing from a bank or other third party
lender or otherwise accessing the capital markets. The decision whether such
funds are required, from whom such funds will be borrowed and the terms and
conditions of such borrowing shall be determined from time to time by the Board
of Holdco II.
ARTICLE 5 - RESTRICTIONS ON TRANSFER OF CAPITAL
5.1 NO DEALING WITH CAPITAL. Each of the Shareholders covenants that it will not
sell, assign, donate, encumber, transfer, mortgage, pledge, charge, subject to a
security interest, hypothecate, or otherwise dispose of or in any way
whatsoever, directly or indirectly, deal with the ownership of any Capital,
securities convertible into Capital now or hereafter owned by it, except in
accordance with the terms of this Agreement or the Investment and Restructuring
Agreement, or except with the prior written unanimous consent of the other
Shareholders. For greater certainty, the provisions of Article 6 hereof shall
not apply to any transfer or contribution of Capital made pursuant to the terms
of the Investment and Restructuring Agreement or pursuant to Section 5.2 hereof.
5.2 TRANSFER TO PERMITTED TRANSFEREE. Notwithstanding the provisions of Section
5.1 hereof and any other provisions of this Agreement which restrict the
disposition of or dealing with Capital, a Shareholder shall at any time or from
time to time have the right, without the approval of the other Shareholders, to
dispose of all or any Capital held by such Shareholder to a Permitted
Transferee, provided that at the time of such disposition:
(a) such Permitted Transferee shall agree with the other parties
hereto in writing and in form and substance satisfactory to
the other Shareholders, acting reasonably, to assume and be
bound by all of the terms and obligations contained in this
Agreement as if such Permitted Transferee had entered into
this Agreement in the place and stead of the Shareholder from
whom such Capital is acquired;
(b) the Permitted Transferee agrees to remain a Permitted
Transferee of the Shareholder from whom such Capital is
acquired for so long as the Permitted Transferee is an owner
of any Capital; and
(c) the Shareholders receive in form and substance satisfactory to
them, acting reasonably, evidence that the Permitted
Transferee is a Permitted Transferee of the Shareholder from
whom Capital is to be acquired and that the Agreements
referred to in Subsections 5.2(a) and (b) above, are legal,
valid and binding obligations of the Permitted Transferee.
5.3 CONTINUING LIABILITY OF SHAREHOLDERS. Notwithstanding a disposition of
Capital to a Permitted Transferee, a disposing Shareholder shall vis-a-vis the
other parties hereto remain liable as principal obligant under all covenants of
such disposing Shareholder contained in this
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Agreement, and the disposing Shareholder agrees to unconditionally guarantee and
underwrite to the other parties hereto the due performance by the Permitted
Transferee of all obligations imposed on such Permitted Transferee under this
Agreement.
ARTICLE 6 - RIGHT OF FIRST REFUSAL
6.1 NOTICE OF PROPOSED SALE. If any Shareholder (in this Article 6 referred to
as the "Offeror") receives a bona fide written offer (in this Article 6 referred
to as the "Offer") from any person, firm or corporation dealing at arm's length
with the Offeror to purchase all or any part of the Capital owned by such
Shareholder, which is acceptable to the Shareholder, such Shareholder shall give
notice of such Offer (in this Article 6 referred to as the "Notice") to the
other Shareholders and shall set out in the Notice the amount of Capital to be
sold pursuant to the Offer (in this Article 6 referred to as the "Offered
Capital") and the terms upon which and the price at which (in this Article 6
referred to as the "Offered Capital Purchase Price") such Offered Capital will
be sold pursuant to the Offer. An Offer shall not provide for any consideration
other than cash consideration.
6.2 RIGHT TO PURCHASE OFFERED CAPITAL. Upon the Notice being given, the other
Shareholders (in this Article 6 sometimes collectively referred to as the
"Offerees" and sometimes individually referred to as an "Offeree") shall have
the right to purchase all, but not less than all, of the Offered Capital for the
Offered Capital Purchase Price. The Offerees shall be entitled to purchase the
Offered Capital pro rata based upon the amount of the Capital owned by each
Offeree or to purchase in such other proportion as the Offerees may agree in
writing.
6.3 NOTICE OF PURCHASE AND ADDITIONAL PURCHASES. Within ten Business Days of
having been given the Notice, each Offeree desiring to purchase all of the
Offered Capital that it is entitled to purchase in accordance with the
provisions of Section 6.2 hereof shall give notice thereof to the Offeror and to
the other Offerees. If any Offeree does not give such notice, the Offered
Capital that it had been entitled to purchase (in this Section 6.3 referred to
as the "Rejected Capital") may instead be purchased by the Offerees who did give
such notice, pro rata based upon the amount of the Capital owned by such
Offerees as between themselves or in such other proportion as such Offerees may
agree in writing, and, within five Business Days of the expiry of the ten
Business Day period specified in this Section 6.3, each Offeree who desires to
purchase all of the Rejected Capital that it is entitled to purchase in
accordance with the provisions of this Section 6.3 shall give an additional
notice thereof to the Offeror and to the other Offerees. If any Offeree entitled
to give the said additional notice does not do so, the Rejected Capital that it
had been entitled to purchase may instead be purchased by the Offerees who did
give such notice, and so on from time to time until the Offerees are willing to
purchase all of the Offered Capital or until they are not willing to purchase
any more. If the Offerees are willing to purchase all, but not less than all, of
the Offered Capital, the transaction of purchase and sale shall be completed in
accordance with the terms set out in the Notice.
6.4 WHAT CAPITAL CAN BE SOLD TO THIRD PARTY. If the Offerees do not give notice
in accordance with the provisions of Section 6.3 hereof that they are willing to
purchase all of the Offered Capital, the rights of the Offerees, subject as
hereinafter provided, to purchase the
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Offered Capital shall forthwith cease and determine and the Offeror may sell the
Offered Capital to the third party purchaser within 60 days after the expiry of
the ten Business Day period or five Business Day periods, as the case may be,
specified in Section 6.3 hereof, for a price not less than the Offered Capital
Purchase Price and on other terms no more favourable to such person than those
set forth in the Notice, provided that the person to whom the Offered Capital is
to be sold agrees prior to such transaction to be bound by this Agreement and to
become a party hereto in place of the Offeror with respect to the Offered
Capital. If the Offered Capital is not sold within such 60 day period on such
terms, the rights of the Offerees pursuant to this Article 6 shall again take
effect and so on from time to time.
ARTICLE 7 - TRIGGERING EVENTS
7.1 TRIGGERING EVENTS DEFINED. A Triggering Event is the occurrence of any one
of the following events with respect to a Shareholder (the "Defaulting
Shareholder"):
(a) the occurrence or existence of Important Reasons that result
in the forfeiture of Capital (Einziehung von
Geschaeftsanteilen) of the Shareholder or foreclosure
(Ausschliessung als Gesellschafter) with respect to the
Shareholder;
(b) an Act of Insolvency;
(c) a default occurs which is not remedied or cured within fifteen
(15) days of its occurrence under any loan or obligation for
which security has been granted by way of a mortgage,
hypothecation or a pledge of, or the granting of a security
interest in any Capital held by the Shareholder (including any
loan or obligation for which security has been granted) with
the result that, absent any provision of this Agreement and
upon compliance with applicable law, the lender or obligee
could realize upon such security; or
(d) the Capital of the Shareholder is seized and such seizure is
not lifted within one month from the date of seizure.
A Defaulting Shareholder shall give notice to the other parties then bound by
this Agreement that an event has occurred with respect to such Defaulting
Shareholder which constitutes a Triggering Event or which would, if such event
is not corrected or remedied or otherwise resolved to the satisfaction of the
other Shareholders and Holdco II as contemplated above, constitute such a
Triggering Event. Such notice shall be given forthwith after the occurrence of
the particular event.
7.2 OBLIGATION OF A DEFAULTING SHAREHOLDER FOLLOWING TRIGGERING EVENT. Upon the
occurrence of a Triggering Event, the Defaulting Shareholder shall forthwith
offer to sell all of its Capital to the other Shareholders (in such case, the
"Non-Defaulting Shareholders") by notarized notice to the Non-Defaulting
Shareholders (the "Sale Notice"). The purchase price for such Capital shall be
determined in accordance with Section 7.6 hereof and shall be payable by way of
certified cheque or bank draft. The offer set out in the Sale Notice shall be
irrevocable.
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Upon the Sale Notice being given, the Non-Defaulting Shareholders or a person or
persons named by a resolution of the Non-Defaulting Shareholders (including but
not limited to Holdco II or any third party), in the sole discretion of the
Non-Defaulting Shareholders, shall have the right to purchase all, but not less
than all, of the Defaulting Shareholder's Capital, pro rata based upon the
amount of Capital owned by each Non-Defaulting Shareholder or in such other
proportion as the Non-Defaulting Shareholders may agree, by notarized acceptance
of the offer to the Defaulting Shareholder within fifteen (15) days after
receipt of the Sale Notice (the "Notice Period"). If no notarized acceptance is
given under this Section 7.2, the Non-Defaulting Shareholders shall be deemed to
have rejected the offer made available to it to purchase the Capital of the
Defaulting Shareholder. If no Sale Notice is given by a Defaulting Shareholder
under this Section 7.2, the Non-Defaulting Shareholders shall have the right to
request the purchase of the Capital of the Defaulting Shareholder. The
completion of a purchase and sale of the Defaulting Shareholder's Capital under
this Section 7.2 shall take place on the 15th day after the expiry of the Notice
Period, provided that if the purchase price of the Capital has not been
determined by such day, the completion shall take place on the 10th day after
the date on which the purchase price has been conclusively determined pursuant
to Section 7.6 hereof.
Regardless of the terms and conditions set out in this Section 7.2, Holdco II
may upon the occurrence of a Triggering Event, prior to the receipt of the Sale
Notice and at any time until completion of the purchase as described above, pass
a resolution to forfeit the Capital of the Defaulting Shareholder. The
compensation to be paid for such forfeited Capital shall be determined in
accordance with Section 7.6 hereof.
7.3 CAPITAL/VOTING/NOMINEES OF DEFAULTING SHAREHOLDER. Notwithstanding anything
to the contrary herein contained, upon a Triggering Event:
(a) the Defaulting Shareholder shall not have any rights to or
interests in Capital contained in Schedule "A" to the
Investment and Restructuring Agreement;
(b) the Defaulting Shareholder shall not be entitled to nominate
any person as a Nominee or Prokurist and such Defaulting
Shareholder in conjunction with the other Shareholders shall
cause such Nominee or Prokurist of the Defaulting Shareholder
to forthwith resign or be removed and a Nominee or Prokurist
of such Defaulting Shareholder shall be replaced with such
person or persons as may be designated by the Non-Defaulting
Shareholders provided that if such Triggering Event is
subsequently remedied, the Defaulting Shareholder shall again
be entitled to nominate a person as Nominee or Prokurist as
provided hereunder and all of the Shareholders shall take all
necessary steps in this regard; and
(c) the Defaulting Shareholder shall not be entitled to vote its
Capital or to notice of meetings of Shareholders and, where a
vote of the Shareholders is required, the Non-Defaulting
Shareholders shall be deemed to own all of the Capital,
provided that if such Triggering Event is subsequently
remedied, such Defaulting Shareholder shall again be entitled
to vote its Capital and to notice of meetings of Shareholders.
In addition, the Defaulting Shareholder hereby irrevocably
gives its
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proxy to the Non-Defaulting Shareholders to vote its Capital
in any matter that such Shareholders determine and hereby
appoints such Shareholders as its attorney to execute all
necessary documents on behalf of the Defaulting Shareholder to
give effect to such proxy.
7.4 OTHER REMEDIES. Upon the occurrence of any Triggering Event, in addition to
the rights in Section 7.2 hereof, the Non-Defaulting Shareholders shall be
entitled to bring any action at law as may be permitted in order to recover
damages or to bring any proceedings in the nature of specific performance,
injunction or other remedy, it being acknowledged by the Shareholders that
damages at law may be an inadequate remedy for a default, breach or threatened
breach of this Agreement.
7.5 NON-WAIVER. No consent or waiver of any breach or Triggering Event by any
Shareholder in the performance of its obligations under this Agreement shall be
deemed to be construed to be consent to or waiver of any other breach or
Triggering Event by that Shareholder of the same or any other obligations of
that Shareholder under this Agreement. Failure by any Shareholder to complain of
any act or failure to act of the other Shareholder or to declare a Triggering
Event in respect of the other Shareholder, irrespective of how long such failure
continues, shall not constitute a waiver by that Shareholder of its rights under
this Agreement.
7.6 DETERMINATION OF PURCHASE PRICE. For the purposes of Section 7.2 hereof, the
"purchase price" for the Defaulting Shareholder's Capital shall be equal to: (i)
the portion of the Consolidated Holdco II Net Worth (as such term is defined in
the Investment and Restructuring Agreement) less the amount of any capital
contributions made directly or indirectly (e.g., including grandfather
contributions) to the free capital reserves (ungebundene Kapitalruecklagen) of
Holdco II after the effective date of this Agreement attributable to the
Defaulting Shareholder's Capital as at the applicable date; plus (ii) the whole
amount of any capital contributions made directly or indirectly (e.g., including
grandparent contributions) to the free capital reserves (ungebundene
Kapitalruecklagen) of Holdco II by the Defaulting Shareholder after the
effective date of this Agreement. For greater certainty, the transfer of the
capital of Hovis to Holdco II pursuant to the terms of the Investment and
Restructuring Agreement is not considered to be such capital contributions.
ARTICLE 8 - GENERAL SALE PROVISIONS
8.1 APPLICATION OF GENERAL SALE PROVISIONS. Except as may otherwise be provided
in this Agreement, the provisions of this Article 8 shall apply to any purchase
and sale of Capital (in this Article 8 referred to as the "Sold Capital")
pursuant to this Agreement.
8.2 REQUIREMENTS OF VENDOR. On the date of closing (in this Article 8 referred
to as the "Completion Date"), a Shareholder selling Sold Capital pursuant to the
terms of this Agreement (in this Article 8 also referred to as a "Vendor") shall
deliver or cause to be delivered to the purchaser(s) appropriate transfers duly
executed by the Vendor and duly notarized (if required), together with a
representation and warranty executed by the Vendor in favour of the purchaser(s)
that the Sold Capital is owned by the Vendor with good and marketable title
thereto, free and
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clear of any mortgage, lien, charge, pledge, hypothecation, security interest,
encumbrance, restriction, covenant, right, demand or adverse claim of any kind.
8.3 REQUIREMENTS OF PURCHASER. On the Completion Date, the Shareholder(s)
purchasing the Sold Capital (in this Article 8 referred to as the
"Purchaser(s)") shall pay the purchase price for the Sold Capital on closing by
negotiable cheque certified by an Austrian or German bank or an official bank
draft drawn on a bank in Austria or Germany.
8.4 COVENANTS OF THE PARTIES. The parties hereto covenant and agree that from
and after the occurrence of an event giving rise to a transaction of purchase
and sale pursuant to the terms hereof, they shall do all things necessary or
desirable to cause the transaction of purchase and sale to be completed as soon
as possible.
8.5 NO JOINT LIABILITY. For greater certainty, the parties hereto acknowledge
and agree that the Purchasers in any transaction of purchase and sale
contemplated in this Agreement are not jointly liable for the payment of the
purchase price for the Sold Capital but are only liable for their proportionate
share thereof.
8.6 DATE OF CLOSING. For the purposes of this Agreement the closing of any
transaction of purchase and sale contemplated in this Agreement, as the case may
be, shall take place at Holdco II's registered office at 2:00 p.m. Central
European Time on the Completion Date or at such other place and time as
otherwise mutually agreed upon by the parties hereto, subject only to
registration in the Firmenbuch.
8.7 GOVERNMENTAL APPROVALS. If any Governmental Approval is required by the
Purchaser(s) under any provision of this Agreement, then, notwithstanding
anything contained in this Agreement, the time period specified in this
Agreement for acceptance of any offer by the Purchaser(s) shall be extended for
an additional sixty (60) days to permit the Purchaser(s) to obtain the necessary
Governmental Approval. Any such application for Governmental Approval shall be
the sole responsibility of the Purchaser(s) who shall also be responsible for
all costs and expenses incurred in connection therewith. The other Shareholders
and Holdco II shall use reasonable efforts to cooperate with the Purchaser(s) in
any application for Governmental Approval.
ARTICLE 9 - RELATIONSHIP OF SHAREHOLDERS
9.1 PLACE AND QUORUM FOR MEETINGS OF SHAREHOLDERS. Meetings of Shareholders
shall be held at the head office of Holdco II or at any other place agreed to by
all of the managing directors of Holdco II. A quorum for all meetings of
Shareholders shall be Shareholders present and representing by proxy or in
person not less than a majority of the Capital entitled to vote at such meeting.
However, should quorum not be reached, a second meeting may be convened pursuant
to the GmbHG and such second meeting shall not require a quorum if the
Shareholders are informed about this consequence when convening such meeting
(Section 38 of the GmbHG).
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9.2 RESOLUTIONS. Resolutions of the Shareholders shall be passed either in
meetings of Shareholders or by means of verbal, written or electronic
communication, provided that the resolutions shall be recorded in writing as
soon as reasonably practicable upon the date of passing of such resolutions.
9.3 MAJORITY OF VOTES. Except as may be otherwise provided in this Agreement,
all decisions of the Shareholders shall be decided by a majority of votes cast
or by such greater percentage as may be required by law.
9.4 MINORITY SHAREHOLDERS. For the purposes of conferring to JJHovis and
Steinbauer such minority rights as provided for in the GmbHG and as finally
listed in Schedule "B" hereto ("Minority Rights"), JJHovis and Steinbauer shall,
until the conclusion of the Earn In Period, be deemed to own such percentage of
Capital as would be required to exercise any of the Minority Rights, despite any
scenario in which the earn in of Capital pursuant to Schedule "A" to the
Investment and Restructuring Agreement has not yet been effected. For greater
certainty, the conferring of the Minority Rights shall not be deemed to confer
any additional voting rights or rights to dividends other than resulting from
the actual Capital owned by JJHovis and/or Steinbauer.
9.5 DISCLAIMER. Nothing contained in this Agreement shall or shall be deemed to
constitute the parties hereto as agent of the other nor any other relationship
whereby any party hereto could be held liable for any act or omission of the
other, save as specifically provided by this Agreement. None of the parties
hereto shall have any authority to act for the other or to incur any obligation
on behalf of the other with respect to the subject matter of this Agreement,
save as specifically provided by this Agreement. Each party hereto covenants to
indemnify the other parties and hold them harmless from all claims, losses,
costs, charges, fees, expenses, damages, obligations and responsibilities
incurred by such parties by reason of any action or omission of the other party
outside the scope of the authority specifically provided by this Agreement.
9.6 ENCUMBRANCES. No party hereto shall sell, transfer, assign, pledge,
hypothecate, mortgage, or in any other manner encumber its Capital, except as
specifically provided in this Agreement, without the written consent of the
other parties. Notwithstanding the foregoing, any party hereto may pledge or
hypothecate its Capital to a bank, trust company or similar entity as security
for loans, provided that where a fixed charge or security interest is given, the
lender shall acknowledge and agree in writing with the other parties hereto to
be bound by the provisions of this Agreement in the event of realization of its
security.
9.7 COMPETITIVE BUSINESSES. Unless otherwise specifically provided for in this
Agreement, any Shareholder of Holdco II may independently engage in, be
concerned with or interested in, lend money to, or guarantee the debts or
obligations of any business endeavour, whether or not competitive with the
business of Holdco II and Hovis, without consulting the other parties hereto and
without in any way being accountable to the other parties.
Each of JJHovis and Steinbauer hereby severally covenants and agrees with the
other parties hereto that: (i) during the Earn In Period; (ii) so long as he is
a managing director of Holdco II and/or Hovis or for two years thereafter; or
(iii) so long as he is a Shareholder of Holdco II or a
18
shareholder of Hovis, he shall not, for whatever reason and with or without
cause, either individually or in partnership or jointly or in conjunction with
any person or persons, as principal, agent, employee, shareholder, owner,
investor, partner or in any other manner whatsoever, directly or indirectly,
carry on or be engaged in or be concerned with or interested in or advise, lend
money to, guarantee the debts or obligations of or permit his name or any part
thereof to be used or employed by any person or persons engaged in or concerned
with or interested in any business or operations competitive with Holdco II or
Hovis within Germany or any jurisdiction in which Hovis or any subsidiary of
Hovis carries on business.
9.8 BODY CORPORATE AND REGISTERED SEAT. The parties hereto agree that for the
duration of this Agreement, Holdco II and Hovis shall remain bodies corporate
and, unless there is a good business reason, the registered seats of Holdco II
and Hovis shall not be changed.
9.9 GOOD FAITH. Each party hereto shall act honestly and in good faith and in
the best interest of Holdco II and shall exercise the degree of care, diligence
and skill that a reasonably prudent person would exercise in comparable
circumstances.
ARTICLE 10 - CONFIDENTIALITY
10.1 CONFIDENTIALITY. The Information shall be kept confidential and shall not,
without the prior consent of the other parties, be disclosed by a party hereto
or its representatives in any manner or in part and shall not be used by a party
hereto or its representatives, directly or indirectly, for any purpose other
than the business of Holdco II, provided that nothing in this Agreement shall
restrict or prohibit any of the parties from making such releases or other form
of disclosure as: (i) may be required pursuant to any laws, regulations or
policies (including those of any stock exchange or quotation system) applicable
to it; or (ii) may be made by a party pursuant to customary written
confidentiality agreements entered into by parties to consider business
opportunities.
The parties hereto each agree to furnish the Information only to the respective
representatives of a party hereto, including but not limited to its legal
counsel, accountants and auditors, who need to know the Information for the
purposes of understanding the business of Holdco II and who are informed of the
confidential nature of the Information and agree to be bound by the terms
hereof. The parties hereto each agree to be responsible for any breach of this
Agreement by any of their respective representatives provided that such breach
occurs while such representative is employed by or is under contract to such
party. Each of the parties hereto shall make all reasonable necessary and
appropriate efforts to safeguard the Information and the existence of
discussions from disclosure to anyone other than as permitted hereby. The
foregoing shall be inoperative as to such portions of the Information which: (i)
are or become generally available to the public other than as a result of
disclosure by the parties hereto or their respective representatives; (ii) are
or become available to any of the parties hereto on a non-confidential basis
from a source other than the other parties hereto or their representatives; or
(iii) are or become known to any of the parties hereto on a non-confidential
basis prior to its disclosure by the other parties hereto or their
representatives.
19
ARTICLE 11 - GENERAL PROVISIONS
11.1 NOTICES. Unless a particular provision of this Agreement requires delivery
in a specified manner, all notices, demands, approvals, consents or requests and
other communications which may or are required or permitted to be given under
this Agreement shall be given or made in writing and shall be delivered
personally, transmitted by facsimile or sent by registered mail, charges
prepaid, to each of the parties hereto as follows:
GLAMIOX BETEILIGUNGSVERWALTUNGS GMBH
c/o Deloitte & Touch GmbH
Friedrichstrasse 10
A-1010 Vienna, Austria
Fax No.: 0043-1-58854-5699
Attention: E. Holzer
GARDA INVESTMENTS CORP.
c/o Suite 1000 - 925 West Georgia Street
Vancouver, British Columbia
Canada V6C 3L2
Fax No.: (604) 669-8803
Attention: H.S. Sangra
and, in the case of each of Holdco II and/or
Holdco I, with a copy to:
SANGRA, MOLLER
Suite 1000 - 925 West Georgia Street
Vancouver, British Columbia
Canada V6C 3L2
Fax No.: (604) 669-8803
Attention: H.S. Sangra
JURRIAAN J. HOVIS
Schoenbrunner Graben 94
1180 Vienna, Austria
Fax No.: 43 1 24025158
FERDINAND STEINBAUER
Augasse 6
8101 Gratkorn, Austria
Fax No.: 43 3124 23199
Any such notice or other communication shall be deemed to have been given and
received on the day on which it was delivered or transmitted so long as the
delivery or transmission occurs during normal business hours, or, if mailed, on
the seventh postal delivery day next following
20
mailing. During any period of disruption of postal service, notices shall be
delivered personally or transmitted by facsimile.
Any party hereto may change its address for delivery for the purposes of this
Section 11.1 to any other address by giving notice to the other parties hereto
in accordance with this Section 11.1.
11.2 ADDITIONAL DOCUMENTS. The parties hereto shall sign such further and other
documents, cause such meetings to be held, resolutions passed and by-laws
enacted, exercise their vote and influence, do and perform and cause to be done
and performed such further and other acts and things as may be necessary or
desirable in order to give full effect to this Agreement and every part thereof.
11.3 ENTIRE AGREEMENT. This Agreement represents the entire agreement between
the parties hereto pertaining to the subject matter of this Agreement and
supersedes all prior agreements, understandings, negotiations and discussions
whether oral or written of the parties thereto and there are no warranties,
representations or other agreements between the parties hereto in connection
with the subject matter of this Agreement except as specifically set forth in
this Agreement.
11.4 ENUREMENT. This Agreement shall enure to the benefit of and be binding upon
and enforceable by the parties hereto and, where the context so permits, their
respective heirs, executors, administrators, successors, legal representatives
and permitted assigns.
11.5 NO THIRD PARTY BENEFICIARIES. This Agreement shall not confer any rights or
remedies upon any person other than the parties hereto and their respective
successors and permitted assigns.
11.6 ECONOMIC LOSS. Except for willful misconduct, the parties shall not be
liable towards each other for any indirect or consequential damage or loss such
as, but not limited to, loss of profit, loss of production or loss of
opportunity.
11.7 AGREEMENT TO GOVERN. In case of any conflict or uncertainty between this
Agreement and the by-laws of Holdco II, the Investment and Restructuring
Agreement or any other agreements between the parties with respect to Holdco II,
the parties agree that this Agreement shall take precedence over and govern all
such agreements and by-laws.
11.8 GOVERNING LAW AND ARBITRATION. (a) This Agreement shall be governed by and
construed in accordance with the federal laws of Germany as in force and effect
as of the effective date of this Agreement excluding, however, German rules of
conflicts of law.
(b) The parties irrevocably agree that any disputes which may arise out of
or in connection with this Agreement, the articles of association
(Gesellschaftsvertrag) of Holdco II, Hovis and/the Hovis Group, the
Rules of Procedure, meetings of the Board or meetings of the
Shareholders, or any transaction contemplated hereby, shall be settled
by arbitration in Vienna, Austria, in accordance with the rules set
forth in this Section 11.8.
21
(c) The arbitral tribunal shall consist of two arbitrators and the
presiding arbitrator, each of whom shall be fluent in English and may
be of Austrian, German, Canadian or U.S. nationality. The party
intending to institute arbitration proceedings shall inform the other
parties in writing of its intention and, at the same time, designate
one arbitrator. The other parties involved shall, within 30 days after
receipt of this notice, collectively designate a second arbitrator by
mutual agreement. If, within such time period, the other parties have
not designated a second arbitrator, then at the request of the party
intending to institute arbitration proceedings, the second arbitrator
shall be appointed by the International Chamber of Commerce, acting as
appointing authority. The two arbitrators thus appointed shall choose
the presiding arbitrator. If, within 30 days after the appointment of
the second of the two arbitrators, the two arbitrators have not agreed
upon the choice of the presiding arbitrator, then at the request of any
of the parties to the arbitration proceedings, the presiding arbitrator
shall be appointed by the International Chamber of Commerce.
(d) All submissions and awards in relation to arbitration under this
Agreement shall be made in English and all arbitration proceedings and
all pleadings shall be in English. Original documents in English or
German may be submitted as evidence in their original language;
witnesses not fluent in English may give evidence in their native
tongue (with appropriate translation). Original documents in a language
other than English or German shall be submitted as evidence in English
translation accompanied by the original or a true copy thereof.
(e) The parties to this Agreement hereby adopt the rules of the
International Chamber of Commerce as the procedural rules governing
arbitrations hereunder, insofar as such rules are not inconsistent with
any provision of this Section 11.8, which shall be controlling. The
arbitration panel may, at the request of a party, order provisional or
conservatory measures and shall have the authority to award specific
performance, provided, however, that until the complete establishment
of the arbitration panel, the ordinary courts shall remain competent
for provisional or conservatory measures. Any award shall be final and
not subject to appeal and the parties hereby waive all challenge to any
award of an arbitral panel under this Section 11.8.
(f) Any award shall be made in the currency in which the obligation would
have been paid, if the obligation with respect to which the award is
made was an obligation to pay money or in Euros in all other cases.
(g) To the extent legally required, the parties undertake to set up an
arbitration agreement substantially as set forth in this Section 11.8
in a separate agreement.
11.9 LANGUAGE. The governing language of this Agreement, all meetings of the
Board and meetings of Shareholders shall be English. If for official reasons
certain agreements of Holdco II or its by-laws have to be executed in German or
any other language, such agreements and by-laws shall be translated into English
and the parties agree that internally such English versions shall prevail and
govern for all purposes.
22
11.10 PARTIAL INVALIDITY. Should any provision or part of a provision of this
Agreement be or become invalid or unenforceable, or should this Agreement
contain an unintended contractual gap, then the validity or enforceability of
the remainder of this Agreement shall not be affected. Any such invalid or
unenforceable provision shall be deemed to be replaced by, or any gap deemed to
be filled with, an appropriate provision, which, in accordance with the economic
purpose and object of the provision and/or Agreement and as far as legally
permissible, shall come closest to the parties' original intention, or that
intention which the parties would have had, had they considered the issue.
11.11 AMENDMENT AND WAIVER. No amendment or waiver of any provision of this
Agreement shall be binding on any party hereto unless consented to in writing by
such party. No waiver of any provision of this Agreement shall constitute a
waiver of any other provision, nor shall any waiver constitute a continuing
waiver unless otherwise expressly provided.
11.12 ARTICLES, SECTIONS, HEADINGS AND SCHEDULES. The division of this Agreement
into Articles and Sections and the insertion of headings and Schedules, are for
convenience of reference only and shall not affect the interpretation of this
Agreement. Unless otherwise indicated, any reference in this Agreement to an
Article, Section or Schedule refers to the specified Article or Section of or
Schedule to this Agreement.
11.13 NUMBER AND GENDER. In this Agreement, words importing the singular number
shall include the plural and vice versa, and words importing the use of any
gender shall include the masculine, feminine and neuter genders.
11.14 CALCULATION OF TIME. When calculating the period of time within which or
following which any act is to be done or step taken pursuant to this Agreement,
the date which is the reference date in calculating such period shall be
excluded. If the last day of such period is not a Business Day, then the time
period in question shall end on the first Business Day following such
non-business day.
11.15 LEGISLATION REFERENCES. Any references in this Agreement to any law,
by-law, rule, regulation, order or act of any government, governmental body or
other regulatory body shall be construed as a reference thereto as amended or
re-enacted from time to time or as a reference to any successor thereto.
11.16 EXPENSES. Except as otherwise provided for herein, each of the parties
hereto shall bear its own expenses in relation to this Agreement.
11.17 COUNTERPARTS. This Agreement may be executed in several counterparts, each
of which so executed shall be deemed to be an original and such counterparts
together shall be but one and the same instrument.
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11.18 TRANSMISSION BY FACSIMILE. The parties hereto agree that this Agreement
may be transmitted by facsimile or such similar device and that the reproduction
of signatures by facsimile or such similar device will be treated as binding as
if originals and each party hereto undertakes to provide each and every other
party hereto with a copy of the Agreement bearing original signatures forthwith
upon demand.
IN WITNESS WHEREOF this Agreement has been executed effective the day and year
first above written.
GLAMIOX BETEILIGUNGSVERWALTUNGS GMBH
By: /s/ JAMES CARTER
----------------
Name: James Carter
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Title:
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GARDA INVESTMENTS CORP.
By: /s/ JAMES CARTER
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Name: James Carter
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Title:
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SIGNED, SEALED and DELIVERED by )
JURRIAAN J. HOVIS in the presence of: )
)
) /s/ JURRIAN J. HOVIS
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Signature ) JURRIAAN J. HOVIS
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Name )
- --------------------------------------------------- )
Address )
)
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)
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Occupation
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SIGNED, SEALED and DELIVERED by )
FERDINAND STEINBAUER in the )
presence of: )
)
) /s/ FERDINAND STEINBAUER
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Signature ) FERDINAND STEINBAUER
- --------------------------------------------------- )
Name )
- --------------------------------------------------- )
Address )
)
- --------------------------------------------------- )
)
- --------------------------------------------------- )
Occupation
SCHEDULE "A"
RULES OF PROCEDURE FOR
THE MANAGEMENT OF GLAMIOX BETEILIGUNGSVERWALTUNGS GMBH (THE "COMPANY")
The shareholders have adopted the following rules of procedure for the
management board of the Company according to Article X paragraph (X) of the
articles of association of the Company.
ARTICLE 1
PRINCIPLES OF MANAGEMENT
(1) The managing directors of the Company shall conduct the business of the
Company with the care of a correct and diligent businessman according
to statutory law, the articles of association of the Company and these
rules of procedure.
(2) The managing directors of the Company shall act on the basis of
resolutions passed by them on the relevant matter. Other than from time
to time as agreed upon by the shareholders of the Company with respect
to the day-to-day business of the Company, decisions of the management
board of the Company shall require the unanimous consent of the
managing directors of the Company. In the event the managing directors
are not able to reach such unanimous consent, where required, each
managing director is entitled to refer a matter to the decision of the
shareholders of the Company owning a majority of the outstanding share
capital of the Company, which decision shall be binding on the managing
directors. The non compliance of a managing director such decision is
considered an important reason for removal as managing director.
Regardless of such internal rules, the powers to represent and to
legally bind the Company are set forth in Article 3 of the Owners'
Agreement made effective October 1, 2001 among the Company, Jurriaan J.
Hovis, Ferdinand Steinbauer and Garda Investments Corp. (the "Owners'
Agreement")
(3) The managing directors of the Company shall report to the shareholders
on an ongoing basis in particular by submitting to the shareholders
monthly reports of Hovis GmbH.
(4) In preparing the Company's annual financial statements, the managing
directors of the Company shall apply GAAP (as such term is defined in
the Owners' Agreement). However, in the event that GAAP (as such term
is defined in the Owners' Agreement) and past practice conflict, then
GAAP (as such term is defined in the Owners' Agreement) shall prevail.
ARTICLE 2
RESPONSIBILITY OF MANAGING DIRECTORS
(1) The managing directors of the Company carry joint responsibility for
the management of the Company. They shall cooperate in managing the
Company and inform each other on an ongoing basis about any important
issues that appear in connection with their activities as managing
directors of the Company. For greater certainty, during the Earn In
Period (as such term is defined in the Owners' Agreement), the managing
directors shall inform
A-2
Jurriaan J. Hovis and Ferdinand Steinbauer prior to any substantial
acquisition and disposition of assets.
(2) Without prejudice to their joint responsibility according to the
preceding paragraph, the managing directors of the Company may agree to
divide certain tasks among themselves which they will each carry out on
the basis of guidelines to be agreed upon in connection with the
division of these tasks among themselves. Each managing director shall
report on the accomplishment of any such tasks allocated to it to the
other managing directors of the management board on an ongoing basis.
For greater certainty, for any period which they are managing directors
of the Company, JJHovis shall be responsible for the trade department
and Steinbauer shall be responsible for the finance department.
Regardless of this allocation of tasks, further managing directors may
be responsible for the same departments as well.
ARTICLE 3
RESOLUTIONS, MEETINGS
(1) Resolutions of the managing directors of the Company shall be passed in
meetings which can be called by any managing directors of the Company,
or, if it is not possible to find a date and time at which all managing
directors will be available in due time, by telephone or video
conference.
(2) Shareholders owning more than 10% of the capital of the Company and,
during the Earn In Period (as such term is defined in the Owners'
Agreement), Jurriaan J. Hovis and Ferdinand Steinbauer (such
Shareholders, Jurriaan J. Hovis and Ferdinand Steinbauer being
collectively referred to as "Permitted Persons"), shall have the right
to attend meetings of the managing directors of the management board of
the Company. The managing directors of the management board shall see
to it that the Permitted Persons are informed about the date, time and
location of or the manner of communication at such meetings.
(3) All managing directors of the Company must participate in the passing
of the resolutions, unless: (i) an absent managing director expressly
consents to the other managing directors passing a resolution without
him; (ii) the absent managing director grants proxy to another managing
director; or (iii) the absent managing director instructs another
managing director on how to vote for him.
(4) The managing directors of the Company shall prepare written minutes of
their resolutions. The written minutes may be executed by facsimile.
(5) Resolutions of the management board of the Company are in general
passed by a simple majority of the votes cast unless otherwise provided
for by these rules of procedure or the Owners' Agreement.
A-3
ARTICLE 4
SHAREHOLDERS' APPROVAL
(1) The prior approval of the shareholders of the Company (acting by means
of a shareholders' resolution) by a simple majority of the votes
present is required for the following matters:
(a) Management of the Company, if and to the extent the following
matters are concerned:
(i) disposition of, including encumbrances of or
conclusion of agreements affording rights to third
parties with regard to a material part of the assets
of the Company or Hovis or any subsidiary of the
Company;
(ii) establishment, acquisition and sale of enterprises,
acquisition, change, transfer or termination of
participation in enterprises, setting up, sale,
discontinuance or closure of branches,
establishments, parts of establishments or plants by
the Company, Hovis GmbH or any subsidiary of the
Company;
(iii) other than in the ordinary course of business, grant
of security interests, in particular the assumption
of "Burgschaften" and guarantees, in respect of, and
the assumption of, third party liabilities;
(iv) grant of loans and taking out of loans (with the
exception of customary customer loans);
(v) conclusion and termination of intercompany agreements
(Unternehemensvertrage), in particular loss and
profit transfer agreements;
(vi) approval of the business plan of the Company, Hovis
or any subsidiary of the Company for each following
business year;
(vii) assumption of obligations arising out of bills of
exchange;
(viii) acquisition, sale, encumbrance and disposal of real
property, rights to a real property or rights to a
real property right, and assumption of obligations to
make such dispels by the Company in excess of Euro
100,000;
(ix) conclusion, amendment and termination of contracts
for the performance of continuing obligations, i.e.
contracts with a term longer than twelve months (e.g.
lease, leasing, service and license agreements)
involving in each individual case expenses in excess
of an amount of Euro 100,000;
A-4
(x) assertion of claims, recognition of claims, waiver of
claims, exercise of election rights and declarations
of approval for tax purposes, insofar as an amount of
more than Euro 100,000 in any particular case is
involved;
(xi) grant and revocation of registered powers of attorney
(Prokura), commercial powers of attorney
(Handlungsvollmacht) and other powers of attorney
(including powers of attorney related to bank
accounts);
(xii) grant, modification and termination of pension
commitments and employee profit participations;
(xiii) investments outside the approved business plan that
exceed an amount of Euro 50,000 in each case;
(xiv) other than in the ordinary course of business,
forward exchange transactions, including currency
futures trading for hedging purposes and any other
kind of similar speculative transactions; or
(xv) conclusion of agreements with related entities
(nahestehende Personen) within the meaning of Section
1 of the German Foreign Tax Act
(Au(beta)ensteuergesetz - AstG), except for
agreements with related entities that are direct or
indirect subsidiaries of the Company.
(b) Exercise of voting rights as shareholder of Hovis GmbH or any
subsidiary of Hovis GmbH, if and to the extent the following
matters are concerned:
(i) disposition of, including encumbrances of, or
conclusion of agreements affording rights to third
parties with regard to, a substantial part of the
assets of Hovis or any subsidiary of the Company;
(ii) disposition of, including encumbrances of, or
conclusion of agreements affording rights to third
parties with regard to, all of or part of the
interest of Hovis or any subsidiary of the Company;
(iii) appointment of any officers, managing directors,
supervisory board members or auditors; or
(iv) disposition of, including encumbrances of, or
conclusion of agreements affording rights to third
parties with regard to, the Company's interest in
Hovis GmbH or any subsidiary of the Company or Hovis
GmbH.
(2) The prior approval of the shareholders of the Company (acting by means
of a shareholders' resolution) by all of the votes present is required
for the repayment of the Grandfather Contribution (as such term is
defined in the Investment and Restructuring Agreement dated for
reference October 1, 2001 among Sutton Park International Limited,
Garda Investments Corp., MFC Bancorp Ltd., the Company, Hovis GmbH,
Jurriaan J. Hovis, Johannes Hovis and Ferdinand Steinbauer) during the
Earn In Period (as such term is defined in the Owners' Agreement).
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ARTICLE 5
URGENT MATTERS
(1) In case of urgent matters that do not allow to wait for a necessary
resolution of the members of the management board of the Company to be
passed, each member of the management board may, after having consulted
with as many other members of the management board as possible take,
with respect to the powers conferred to him or them, the actions
necessary to prevent damages to the Company and least likely to make
such action irrevocable.
(2) Such member(s) of the management board shall inform the other members
of the management board of the situation and the action taken
immediately.
(3) The members of the management board shall pass a resolution on how to
proceed with the issue in question as soon as possible thereafter.
ARTICLE 6
EFFECTIVENESS
These rules of procedure have become effective at the time of their adoption by
the shareholders.
SCHEDULE "B"
MINORITY RIGHTS
Section 37(1) of the GmbHG
Section 37(3) of the GmbHG
Sections 45-48 of the GmbHG
SCHEDULE "C"
LETTER TO GARDA INVESTMENTS CORP.
FROM JURRIAAN J. HOVIS AND FERDINAND STEINBAUER
We each hereby acknowledge and agree that the 100% shareholder of Garda
Investments Corp. has contributed or will contribute Euro 7,965,000 to the free
capital reserves (ungebundene Kapitalruecklagen) of Glamiox
Beteiligungsverwaltungs GmbH on or before the Closing Date (as such term is
defined in the Investment and Restructuring Agreement), which has been or will
be allocated to the capital reserve account of Glamiox Beteiligungsverwaltungs
GmbH. In addition, we each hereby acknowledge and agree that the articles of
association (Gesellschaftsvertrag) of Glamiox Beteiligungsverwaltungs GmbH
contain a provision whereby the shareholders of Glamiox Beteiligungsverwaltungs
GmbH may make distributions other than pro rata to the respective percentage of
the nominal share capital of Glamiox Beteiligungsverwaltungs GmbH. We each
hereby irrevocably confirm that we will vote in favour of and entirely for the
benefit of Garda Investments Corp. in respect of any resolution concerning the
distribution of free capital reserves (ungebundene Kapitalruecklagen) amounting
to Euro 7,965,000, in excess of retained earnings to Garda Investments Corp.,
provided such resolution is not made prior to the earlier of: (i) the
termination of the Target Period (as such term is defined in Schedule "A" (the
"Schedule") to the Investment and Restructuring Agreement); or (ii) any earn in
of capital of Glamiox Beteiligungsverwaltungs GmbH being effected pursuant to
Sections 2.2 and 2.3 of the Schedule prior to the termination of the Target
Period (as such term is defined in the Schedule).
Power of Attorney attached in notarized form.