EXHIBIT A
SHAREHOLDERS' AGREEMENT
This Shareholders' Agreement, made this 10th day of January, 1997, by and
between BRINK'S SECURITY INTERNATIONAL, INC. ("BSI"), a corporation duly
organized and existing under the laws of the State of Delaware, United States of
America, with its principal office at One Thorndal Circle, Darien, Connecticut,
U.S.A. and Valores Tamanaco, C.A. ("Valores"), a corporation duly organized and
existing under the laws of Venezuela, with its principal office at Av. Urdaneta,
Esq. Animas, Edif. Banco Internacional, Caracas, Venezuela, (BSI and Valores are
hereinafter collectively referred to as the "Shareholders" or the "Parties".)
WHEREAS, BSI, its parent, Brink's Incorporated, and their respective affiliates
(collectively "Brink's") have long been engaged in and are well known and
respected worldwide in connection with the business of protecting and
transporting valuables by secured transportation throughout the world and
providing various related and ancillary services;
WHEREAS, Valores is a corporation formed under the laws of Venezuela on December
26, 1996 (registered with the Mercantil Registry II of the Federal District and
the State of Miranda, No. 1, Volume 707-A-SGDO), for the purpose of holding
shares of the joint venture company pursuant to this Agreement;
WHEREAS, the shareholders of Valores are Cartera Central, C.A., Cartera de
Inversiones Venezolanas, C.A. and a newly formed corporation, Inversiones Grand
Value, C.A. ("Grand Value"), which newly formed corporation holds 80.2% of the
shares of Valores and which has as its current shareholders ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
and ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, attorneys for ▇▇▇▇▇▇ ▇▇▇▇ (President of
InterBank) ("▇▇▇▇") and ▇▇▇▇▇▇ ▇▇▇▇▇▇ (President of Cartera Inversiones
Venezolanas) ("▇▇▇▇▇▇") and which, in the future, will have as its shareholders
▇▇▇▇ and ▇▇▇▇▇▇ and such other additional individuals and/or corporations as
are approved by BSI under this Agreement (Cartera Central, Cartera de
Inversiones Venezolanas, Grand Value, ▇▇▇▇, ▇▇▇▇▇▇ and all future shareholders
of both Valores and Grand Value are referred to collectively herein as
"Investors"); and
WHEREAS, each of the Investors are guaranteeing all of the obligations of
Valores pursuant to this Agreement;
WHEREAS, BSI was the successful bidder for the shares of Custodia y Traslado de
Valores, C.A. ("Custravalca"), a corporation duly organized and existing under
the laws of Venezuela engaged in business of transportation of valuables and
various other activities in Venezuela, at a public auction held by Fondo de
Garantia de Depositos y
Proteccion Bancaria ("FOGADE") on December 23, 1996, with a bid in the amount of
US$68,100,999 for all of the shares subject to the auction;
WHEREAS, BSI is currently the holder of 15% of the shares of Custravalca, which
shares were included in the public auction of Custravalca;
WHEREAS, the Parties desire to become joint shareholders of Custravalca and
enter this Agreement to set forth their agreement with respect to the
establishment of a joint venture for this purpose and to regulate their
respective rights and responsibilities and the management of the proposed
business and affairs of Custravalca following the acquisition of the shares from
FOGADE.
NOW, THEREFORE, it is hereby agreed as follows:
ARTICLE 1. ESTABLISHMENT OF THE JOINT VENTURE COMPANY
1.1 The Parties agree to become joint shareholders, as set forth herein, of a
new corporation formed on January 9, 1997 by BSI under the laws of Venezuela,
which corporation has paid in capital of US$2,200, has issued 1,000 shares of
common stock and which has no liabilities as of the date of this Agreement.
1.2 The name of the newly formed corporation is Custravalca Brink's, C.A.
(hereinafter referred to as "Custravalca Brink's" or the "Company"), subject to
the terms of Article 10 of this Agreement and the terms of a Trademark License
Agreement.
1.3 Immediately following execution of this Agreement, but not later than forty
eight (48) hours prior to the Closing Date (as defined in Section 1.4 below),
Valores shall:
(a) Pay to BSI the amount of US$858, for which it shall receive 390 shares
of the Company (out of the total of 1,000 issued shares); and
(b) Lend to Custravalca Brink's the amount of US$7,967,817, which loan
shall be non-interest bearing. The loan amount shall be wire transferred to the
account of the Company; the bank and the account number for such wire transfer
shall be provided prior to such transfer.
(c) Should Valores fail to pay for the shares of the Company as provided in
(a) above and/or to transfer the loan amount as set forth in (b) above 48 hours
prior to the Closing Date, this Agreement shall be null and void and neither
Valores nor the Investors shall have any right to become shareholders of
Custravalca Brink's or to otherwise own
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the shares of Custravalca; BSI shall have no further obligation to Valores
or to any of the Investors.
1.4 At a closing with FOGADE, scheduled for January 14, 1997 (or such subsequent
date, not later than January 20, 1997, that may be agreed upon by BSI and
FOGADE) (the "Closing Date"), the Company shall acquire the shares of
Custravalca not currently held by BSI from FOGADE. BSI's currently held shares
of Custravalca shall remain with BSI and shall not be subject to transfer.
1.5 (a) As soon as practicable following the acquisition of the shares of
Custravalca by the Company, the Shareholders shall take whatever action is
necessary and appropriate to cause the mergers of Custravalca and Servicio
Panamericano de Proteccion, C.A., a subsidiary of Custravalca, into Custravalca
Brink's, C.A., with the latter being the surviving entity. The name of the
Company will thereupon be changed to Brink's-Servicio Panamericano de
Proteccion, C.A.
(b) Upon the merger of Custravalca into Custravalca Brink's, BSI's shares
in Custravalca will be exchanged for newly issued shares of Custravalca Brink's,
such that the total number of shares of the Company held by BSI will equal 61%
of the shares of the Company.
(c) Upon the merger of Custravalca into Custravalca Brink's, the loan made
by Valores to the Company in the amount of US$7,967,817 as set forth in Section
1.3(b) above will be capitalized. Valores shall thereupon receive newly issued
shares of Custravalca Brink's, such that the total number of shares of the
Company held by Valores will equal 39% of the shares of the Company.
(d) Upon the merger of Custravalca into the Company, the Shareholders shall
take such action as is permissible under local law to provide for either a cash
payment or other purchase by the Company of the shares of Custravalca owned by
shareholders holding less than 1% of the shares of Custravalca at the time of
the merger, i.e. those shareholders holding 0.08% of Custravalca's shares which
were not subject to the auction, or take such other action as may be permissible
to achieve the same ultimate result.
1.6 (a) Following the mergers and other actions set forth in 1.5 above, the
shares of Custravalca Brink's shall be held by the parties in the following
proportions:
BSI: 61%
Valores: 39%
The shares held by BSI shall be designated Class A Shares and the shares held by
Valores shall be designated Class B Shares.
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(b) Except as specifically set forth in this Agreement or unless otherwise
agreed by the Parties, the holders of Class A and Class B common stock of
Custravalca Brink's shall be entitled to pre-emptive rights to subscribe for or
purchase pro rata, based upon the percentage shareholdings set forth above, any
shares issued in addition to the shares issued by Custravalca Brink's as
provided above.
(c) Except as specifically provided in this Agreement, each share of Class
A and Class B common stock of Custravalca Brink's shall be of equal rights in
all respects and for all purposes and each share of common stock shall accord to
the holder thereof: (a) one vote at the meetings of Shareholders of Custravalca
Brink's in respect of each share owned and fully paid by the holder; (b) the
right to receive dividends; (c) the right to subscribe for or purchase any
additional shares issued by Custravalca Brink's pursuant to this Article 1.6;
and (d) the right to participate in the distribution of assets of Custravalca at
the time of the winding-up thereof. These shares shall be subject to
restrictions on transfer as set forth in this Agreement.
ARTICLE 2. PURCHASE OF CUSTRAVALCA SHARES FROM FOGADE
2.1 At the closing with FOGADE on the Closing Date, BSI is obligated by
Agreement with FOGADE dated December 23, 1996, to pay in United States Dollars
the sum of $57,877,671 for the shares to be transferred by FOGADE to Custravalca
Brink's. This amount reflects the total purchase price of US$68,100,999 less the
value of BSI's existing 15% shareholding in Custravalca. Upon payment of this
amount in cash, the shares of Custravalca not currently held by BSI will be
transferred by FOGADE to Custravalca Brink's.
2.2 The funds necessary for the closing with FOGADE on the Closing Date shall be
provided as follows:
(a) The Company shall pay US$7,967,817, the proceeds of the loan from
Valores, to FOGADE at closing.
(b) The remaining amount to be paid to FOGADE on the Closing Date,
US$49,909,854, shall be obtained through financing obtained by Custravalca
Brink's, pursuant to loan agreements negotiated by BSI with Banco Mercantil on
behalf of itself and other banks (collectively, "Banco Mercantil") and approved
and authorized by the current Board of Directors of the Company. The loans (both
short and long term), which are to be repaid by the Company, will be guaranteed
by the Company and its operating subsidiaries, but not by the Company's
Shareholders. By execution of this Agreement, Valores and the Investors hereby
acknowledge and consent to the terms of the loan agreements as may be agreed
upon by BSI and Banco Mercantil on behalf of ▇▇▇▇▇▇▇▇▇▇▇
▇
Brink's and agree that neither BSI, nor its parent, subsidiary or affiliated
companies, nor any of the directors of the Company, shall have any obligation or
liability to Valores, the Investors, Custravalca Brink's, Custravalca or any
other individual or entity in connection with or arising from the negotiation
and/or final execution of the loan documents.
(c) BSI's contribution to payment of the successful bid price of
US$68,100,999 shall be the value of its existing 15% interest in Custravalca
which was included in the shares subject to public auction by FOGADE.
ARTICLE 3. STATUTES AND ORGANIZATION RULES
3.1 (a) The Articles of Incorporation and the By-Laws of Custravalca Brink's
shall be modified as soon as practicable following the Closing Date and/or the
mergers referred to in Article 1.5 above to reflect the terms of this Agreement.
The modified Articles of Incorporation and By-Laws shall be substantially in the
form of Attachment A, annexed hereto and incorporated by reference herein.
3.2 Notwithstanding the provisions of Article 3.1, in the event of any conflict
between the terms of this Agreement and the Articles of Incorporation and
By-Laws of Custravalca Brink's, the terms of this Agreement shall prevail and
the Parties hereto shall cause the appropriate Shareholders' (and/or Board of
Directors') meeting to be held and shall vote in favor of the amendment of the
said Articles and By-Laws so as to remove any such conflict. To the extent that
it is not practicable to draw up the Articles and By-Laws to incorporate any or
all of the provisions of this Agreement, the Parties are agreed that the
provisions of this Agreement shall govern and be conditions precedent to the
continuation of the existence and operations of the Company.
ARTICLE 4. BUSINESS OF THE COMPANY AND CAPITAL CONTRIBUTIONS
4.1 The business of the Company (the "Business") shall include the following
services in Venezuela: armored car services for the transportation of currency,
diamonds and jewelry, precious metals and other valuables and securities;
servicing of automated teller machines, including cash replenishment, deposit
pick-up and maintenance; processing, counting and wrapping coin; processing and
counting paper currency; providing various vaulting services; providing ground
support for international air courier services and such other services as shall
be mutually agreed by the Parties. In addition, to the extent and for any period
that the Company continues to hold the shares of companies engaged in businesses
which differ from the above description, e.g., printing, transportation of
non-valuable packages, the business of the Company shall also include the
business of these various subsidiaries in Venezuela.
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4.2. The Parties agree that, to the extent possible, the financing of the
Company's business shall be from the Company's retained earnings from the
operation or from indebtedness. It in order to obtain indebtedness in the future
(following acquisition of the shares of Custravalca) on terms acceptable to the
Company it is necessary for such indebtedness to be wholly or partially
guaranteed, the Shareholders, if required, shall each guarantee their pro rata
share of such indebtedness, provided that such limited several guarantees shall
in each case be in such form as the Shareholder may reasonably approve. The
Parties hereby acknowledge that until the indebtedness of the Company is reduced
to an amount below the initial stockholders equity level or subsequent
stockholders equity levels, whichever is lower, it is their intention that all
surplus cash shall be applied to the reduction of the indebtedness of the
Company.
4.3 In addition to any capital contributions to be made as described in this
Agreement, each Shareholder shall be obligated to contribute to the Company a
pro rata share of the funds necessary for the purpose of funding the business,
as shall from time to time be called for and approved by the Shareholders in
accordance with this Agreement. Additional shares of the Company will be issued
to each Party making such capital contribution, on a pro rata basis based upon
the percentage of shareholding in the Company and the capital contributed. In
addition to any other remedy for non-payment of such contribution which may be
available to the Parties, failure to make the required capital contributions
will result in dilution of a shareholder's interest in the Company; the
proportional dilution shall be based upon the Company's shareholders equity (per
its most recent monthly financial statements) and the amount of capital
contributions made by the Shareholders.
4.5 The Company may pay dividends on its common stock if and to the extent
declared by Shareholders, upon resolution of the Board of Directors, provided,
however, that any distribution shall be permitted by the laws of Venezuela. The
payment of dividends by the Company shall, however, be subject to the following
general guidelines:
(a) It is anticipated that dividends will not be paid in the first four or
five years of operation following the Parties acquisition of the shares of
Custravalca as provided herein, as the Company will be in the process of
retiring the majority of the debt balance incurred in January 1997 (as set
forth in Section 2.1(b)).
(b) Thereafter, it is anticipated that dividends will be paid under the
following general conditions:
(i) Retained earnings are positive;
(ii) Stockholders' Equity is equal to or greater than Debt
(obligations for borrowed money); and
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(iii) The Company has achieved its break-even point, defined as
total cash inflows from operations equaling or exceeding total
cash expenditures (including capital expenditures).
If all of the conditions specified in (b)(i) through (iii) above are met,
then the amount of dividend is anticipated to be in the range of 30% to 90%
of net earnings after income taxes (net income after income tax).
ARTICLE 5. THE BOARD OF DIRECTORS
5.1 Immediately following the filing of the modified Articles of Incorporation
as required by Section 3.1, the Board of Directors of the Company shall be
increased to five (5) Directors. The holder of Class A shares (BSI) shall have
the right to appoint three (3) Directors and their respective alternates. The
holder of Class B shares (Valores) shall have the right to appoint two (2)
Directors and their respective alternates. The failure of any Party to appoint
its respective number of directors as set forth above shall not be deemed a
waiver of its right to make such an appointment in the future.
5.2 In case of a vacancy occurring in the Board of Directors caused by death,
resignation, removal, disqualification or any cause affecting any Director, the
party who designated said Director shall have the right to designate his
successor who shall then be elected by the Shareholders.
5.3 In the election of Directors pursuant to any of the provisions of this
Article, the Parties shall use their respective voting powers and do all such
acts and things as may be necessary to ensure that the Shareholders shall duly
elect the Directors (and alternates) appointed or designated by Class A and
Class B shareholders (BSI and Valores), respectively. Such actions shall
include, but not be limited to, agreeing to the prompt scheduling of a
Shareholders' Meeting for the purpose of electing any Director or filling any
vacancy on the Board of Directors.
5.4 (a) Resolutions of the Board of Directors can be passed either by a meeting
of directors (or their alternates), present in person or by video or telephone
conference call, or by Written Consent of Directors (as set forth in (b) below).
The quorum required for the first and second call of any Board of Directors
meetings shall be four out of the five Directors. The quorum for a third call of
any Board of Directors meeting shall be three out of the five Directors.
(b) Notwithstanding anything contained in this Article to the contrary, any
action required to be taken by the Board of Directors may be taken by means of a
Written
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Consent, which must be signed by all Directors. A signature reflected on a
telecopy (facsimile), thereafter confirmed by hard copy shall be sufficient for
such action.
(c) At least 14 days written notice shall be provided for any meeting of
the Board of Directors, unless shorter notice is necessary and the Directors
unanimously agree to such shorter notice, provided, however, that in an urgent
matter, shorter notice shall be permitted if a majority of the Directors agree
to such shorter notice. The notice shall state the purpose or purposes for which
the meeting is being called. Only five (5) days notice shall be required for the
second call of any Board of Directors' meeting. Written notice shall not be
required for a third call of any Board of Directors' meeting; a third call shall
occur within 24 hours of the second call.
(d) All decisions of the Board of Directors shall be by a majority present,
in person or by video or telephone conference, and voting.
(e) Unless otherwise agreed by the Shareholders in any specific case, no
Director shall receive any remuneration or fees from the Company for serving as
a Director nor shall he be entitled to make a claim against the Company for any
expenses incurred by him in connection with his service as a Director.
5.5 The Chairman and the Secretary of the Board of Directors shall be directors
(or their alternates) appointed by the holders of Class A shares and shall be
appointed by the holders of Class A shares.
5.6 Except for those issues reserved exclusively for Shareholders' by law or by
this Agreement, all decisions regarding the Company will be made by the Board of
Directors.
ARTICLE 6. SHAREHOLDERS' MEETINGS
6.1 Shareholders holding a majority of the issued common stock of the Company,
whether present in person or by proxy, shall form a quorum for any general or
special meeting of the Company. Except as set forth in Section 6.3 below, all
decisions of Shareholders will be validly adopted when the majority of the
shares present at the meeting vote in favor of the decision.
6.2 At all meetings of Shareholders, the Shareholders shall vote shares held by
them in such a manner as to comply with and effectuate the provisions of this
Agreement. In addition, each of the Shareholders shall ensure that their
designated Directors shall act and vote toward the objective of giving full
force and effect to the provisions of this Agreement.
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6.3 Notwithstanding anything in this Agreement to the contrary (with the
exception of the provisions of Section 6.4 below), the affirmative vote of
holders of 75% of the issued common stock (whether Class A or Class B) of the
Company shall be required for the following actions:
a) Change in the business of the Company as defined by this Agreement;
b) Amendment of the Articles of Incorporation and By-Laws involving the
matters set forth in these provisions, provided, however, that the
amendments required by Article 3.1 of this Agreement, as reflected in
Attachment A, are deemed approved as required hereunder,
c) Except as set forth in 6.4 below, the sale of assets of the Company with
a value in excess of US$2 Million, which amount shall be adjusted annually
for inflation,
d) The decision to wind-up, dissolve or liquidate the Company or to place
the Company in bankruptcy;
e) Any merger or consolidation of the Company with an unrelated company;
f) Any change in the dividend policy of the Company as set forth in Section
4.5;
g) Any agreement between the Company and any Party or Investor, not in the
ordinary course of business, provided, however, that: (i) the Management
Agreement and Trademark License Agreement attached hereto as Attachments B
and C shall be deemed approved by the Shareholders as required hereunder;
(ii) the sale of Custravalca's shares in Brink's Peru to BSI as provided in
Section 6.4 below shall be deemed approved by the Shareholders as required
hereunder; and (iii) the Parties hereby acknowledge and agree that
agreements between the Company and any Brink's related entity in connection
with the international transportation of valuables, as set forth in Section
9.3, are agreements made in the ordinary course of business and are,
therefore, excluded from this provision;
h) Any decision seeking additional capital contributions from the
Shareholders in an aggregate amount in excess of USD 5,000,000 (Five
Million U.S. Dollars) per year or seeking a guarantee by the Shareholders
of indebtedness of the Company in an aggregate amount in excess of
USD 5,000,000 (Five Million U.S. Dollars) per year, and
i) Any decision to submit the shares of the Company to a public auction.
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6.4 By execution of this Agreement, the Shareholders hereby approve and consent
to the following provisions and agree that it shall not be necessary to convene
a Shareholders' Meeting to take the actions set forth herein. Furthermore, it is
agreed that, notwithstanding anything set forth in Section 6.3 above to the
contrary, none of the actions set forth below shall require the approval of a
75% majority vote; to the extent, however, that a 75% majority vote is deemed
necessary for such actions (pursuant to this Agreement or otherwise), by
execution of this Agreement, the action is hereby approved by the requisite 75%
of issued common stock. The Shareholders hereby agree to take such additional
action, if any, as is necessary to effectuate the actions set forth below.
a) BSI shall have the option to purchase all of the shares of Brink's Peru
currently held by Custravalca (directly or indirectly) (either through a
direct purchase of the shares or through some other mechanism which, in the
discretion of BSI is more advantageous to accomplish the transfer of
Brink's Peru shares, e.g. the purchase of the shares of the subsidiary
holding the shares of Brink's Peru) for a total purchase price of
US$5,278,000. The proceeds of this sale (net of applicable taxes) would be
used, along with other assets of Custravalca (including, but not limited
to, existing cash reserves) to repay the short term debt of Custravalca
Brink's.
b) The Shareholders approve of the sale of any subsidiary or affiliate of
the Company which is not engaged in the cash-in-transit (CIT) business,
including, but not limited to, Radio Contacto, C.A. and Grapho Formas
Petare, C.A., for purposes of reducing the debt of the Company and
specifically authorize the Board of Directors to take such action as it
deems appropriate, by majority vote, in connection with the sale of any
such company. No further action by Shareholders' shall be required to
approve or authorize any such sale.
c) The Board of Directors and/or Shareholders of the Company, as existing
at the time of the execution of this Agreement or as thereafter
constituted, shall be authorized to take such action as is necessary to:
(i) cause the merger of Custodia y Traslado de Valores, C.A. and Servicio
Panamericano de Proteccion, C.A. into Custravalca Brink's, C.A.; (ii) issue
new shares to BSI and Valores, respectively, as described in Section 1.5 of
this Agreement; (iii) provide a mechanism for addressing the holders of the
0.08% shares of Custravalca, as described in Section 1.5; and (iv) change
the name of the Company to Brink's - Servicio Panamericano de Proteccion,
C.A.
d) The Shareholders approve, subject to the approval of the Board of
Directors, the future participation of Banco Provincial as a shareholder of
the Company, either through a contribution of assets (cash and/or non-cash)
or by means of a merger of Banco Provincial's current armored
transportation business or both.
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The Board of Directors is hereby authorized to pursue such participation,
to negotiate the details of any such transaction and to approve, by
majority vote, the terms of such future participation, subject only to the
conditions of this section. The Shareholders understand and agree that any
such future participation by Banco Provincial shall reduce their interest
in the Company in proportion to their respective shareholding interest in
the Company at the time such participation is approved by the Board of
Directors. Should Banco Provincial become a shareholder of the Company, the
Shareholders' hereby agree to take necessary action to amend this Agreement
and the Articles to effectuate such participation, including, but not
limited to, issuance of a new class of shares (Class C) and, if appropriate
by the terms of the transaction, increasing the number of directors on the
Board of Directors to provide Banco Provincial's representation on the
Board, provided, however, that any such amendments will retain BSI's
majority status on the Board of Directors and as shareholder, as well as
the right of Valores to two directors on the Board of Directors. Banco
Provincial shall be required to become signatory to this Agreement as a
condition of becoming a shareholder of the Company.
6.5 The Shareholders shall appoint two (2) Principal Examiners and their
respective alternates at the annual meeting of Shareholders. One of the
Examiners shall be appointed by the holders of Class A shares and the second
shall be appointed by the holders of Class B shares. The shareholders making
the initial appointment (Class A or Class B) shall have the right to remove
the Principal Examiner appointed by them and to replace the same.
ARTICLE 7. TRANSFER OF SHARES
7.1 Restrictions on Transfer. No party hereto shall sell, transfer, mortgage,
pledge, assign or in any way dispose of or encumber the beneficial ownership of
any shares owned by it at any time except as set forth in this Article 7.
7.2 Right of First Refusal. If a Party wishes to sell or transfer shares of the
Company (the "Offeror"), then the Offeror shall first give written notice by
overnight mail (Fed Ex or DHL) (the "Sale Notice") to the other Party (the
"Offeree"), offering to sell any or all of its shares in the Company (the
"Offered Shares") to the Offeree, in accordance with the provisions of this
Article.
(a) If the Offeror has not yet received a bona fide offer from a third
party, the Offeror shall offer the shares at fair market value as of the date
the offer is made or deemed to have been made as determined in accordance with
Article 7.3. The Offeree shall have thirty (30) days following receipt of the
Sale Notice or following the final determination of fair market value under
Article 7.3 (whichever is later) to accept or reject the offer to buy all of the
Offered Shares by written notice to the Offeror. Failure to
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provide written notice of its intent to accept or reject within this thirty
(30) day period shall be deemed a rejection.
If accepted, the sale or transfer shall be completed within thirty days. If
rejected after the process outlined above, then the Offeror shall have the right
to sell or transfer the Offered Shares to a third party, provided that: (a) the
selling price and the terms of the sale or transfer to the third party shall not
be more favorable than those offered to the Offeree; (b) any transfer to the
third party must be completed within three months following the final rejection
of the offer by the Offeree; (c) the Offeree consents, in writing, to the sale
or transfer to that third party, which consent shall not be unreasonably
withheld; and (d) the third party complies with the provisions of Clause 7.6
hereof.
(b) If the Offeror has received a bona fide offer from a third party to
purchase the Offered Shares which the Offeror is prepared to accept, then a copy
of that third party offer shall be attached to the Sale Notice to be provided to
the Offeree. The Sale Notice shall constitute an offer, irrevocable within the
time hereinafter specified for acceptance, by the Offeror to sell all of the
Offered Shares to the Offeree at the same price per share of each class and on
the same terms and conditions as set forth in the third party offer to purchase
attached to the Sale Notice. The Offeree shall have thirty (30) days following
receipt of the Sale Notice from the Offeror to accept or reject the offer to buy
all of the Offered Shares by written notice to the Offeror. Failure to provide
written notice of its intent to accept or reject within this thirty (30) day
period shall be deemed a rejection.
If accepted, the sale or transfer shall be completed within thirty (30) days. If
rejected after the process outlined above, then the Offeror shall have the right
to sell or transfer the Offered Shares to any third party (whether or not the
third party making the original offer), provided that: (a) the sale or transfer
shall be completed pursuant to the term no more favorable than those contained
in the third party offer and which were attached to the Sale Notice; (b) any
sale or transfer to the third party must be completed within three months
following the final rejection of the offer by the Offeree; (c) the Offeree
consents, in writing, to the sale or transfer to that third party, which
consent shall not be unreasonably withheld; and (d) the third party complies
with the provisions of Article 7.6 hereof.
(c) In the case of a proposed sale or transfer to a third party, no such
transfer or sale shall be registered by the Directors of the Company nor given
effect in any way by the Company unless all of the provisions of this Article
have been satisfied.
(d) In no event shall any Shareholder offer or transfer its shares to a
third party which is a competitor of BSI or the Company, without the prior
written consent of BSI.
(e) In the event that BSI seeks to sell all of its shares to a third party
and that Valores rejects the Offer to purchase the shares as provided above, BSI
agrees that, upon
12
written request of Valores received by BSI within 10 days of the rejection of
the Offer for Valores to purchase the shares, BSI shall seek to sell the shares
of both BSI and Valores, on the same terms, to a third party (and not only its
own shares), provided, however, that should a purchaser not be found for the
purchase of all of the shares at a price acceptable to BSI during a twelve month
period following receipt of such written request from Valores, BSI shall not
thereafter be precluded from selling its own shares in Custravalca Brink's,
without the shares held by Valores. It is further agreed that the provisions of
this Section (e) shall not apply in the event of a public offering of the
shares.
7.3 Fair Market Value: The determination of the aggregate fair market value of
all of the shares at any time shall be done: (a) by mutual agreement of the
Parties taking into account any factors which the Parties shall consider to be
relevant; or (b) if mutual agreement shall not be reached within thirty (30)
days of receipt of the Sale Notice, by a valuation performed by an
internationally recognized investment bank or a firm with significant valuation
expertise such as an internationally recognized accounting firm (the
"international investment firm") or such other valuation firm to be mutually
selected by the Parties or by a panel as described below, which valuation shall
be final and binding. The Parties shall make every effort to reach agreement as
to the selection of an international investment firm. Failing such agreement
within forty five (45) days of receipt of the Sale Notice, each of the Parties
shall then, within the following fifteen (15) days, designate an individual from
the international investment firm of its choosing, provided, however, that in no
event shall they be from the same firm. These two individuals appointed by the
Parties shall appoint a third individual from a different international
investment firm within fifteen (15) days following their appointment. These
three individuals shall constitute the panel, which shall decide upon the fair
market value. In the event that all three individuals do not agree upon the fair
market value, then the fair market value agreed upon by any two of the three
individuals shall be deemed to be the fair market value of the shares; if no two
individuals shall agree, the average of the two closest of such appraisals shall
be deemed to be the fair market value. The cost of the valuation shall be paid
by the Parties on an equal basis if selected by mutual agreement. In the event
of a panel, each Party shall pay the cost of the individual selected by it and
share equally the cost of the third individual.
The Parties agree that time is of the essence in reaching an aggregate fair
market valuation under the foregoing paragraph and further agree that any such
valuation shall be reached within forty five (45) calendar days after the
appointment of the international investment firm or panel, as described above,
or such longer period as to which the parties agree; The determination of fair
market value shall be communicated to each of the Parties in writing as soon as
practicable after the determination is made. Shares shall be valued as of the
date of the final determination of fair market value.
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7.4 Legend. All certificates evidencing the common stock shall have the
following legend (translated into Spanish) placed on the front thereof
simultaneously with the purchase of such common stock and duly noted in the
Share Registry Book:
"No transfer or encumbrance may be made of the shares evidenced by this
certificate, except upon compliance with the terms of the Articles of
Incorporation and By-Laws of the Corporation as from time to time amended
and of any shareholders' agreement."
7.5 Transfer to BSI Affiliates: The restrictions contained in Article 7.1 and
7.2 shall not apply to a transfer, assignment or other disposition by BSI to an
affiliate. Transfers or assignments to affiliates of BSI shall be permitted,
without limitation, provided only that as a condition of such transfer or
assignment, BSI causes the affiliate to execute this Agreement and acknowledge
its terms. An "affiliate" when used in this clause means, with respect to any
person at any time, an other person that, directly or indirectly, through one
or more intermediaries controls, is controlled by or is under common control
with such person. "Control" (including the terms "controlling", "controlled by"
and "under common control with"), as used with respect to any person shall means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such person and majority ownership of
such person.
7.6 Applicability of Restriction on Transfer. All transfers, assignments or
other disposition of shares to any person who is not then a party to this
Agreement shall be subject to the execution and delivery by such transferee of a
written instrument evidencing the agreement of such party to be bound by this
Agreement effective upon acquisition of any interest in the shares.
7.7 Transfer upon Change in Ownership of Valores: In the event of the triggering
events detailed in Section (a) below, the shares of the Company held by Valores
shall be offered to BSI (or its designee), upon the terms and conditions
detailed in Section (b) below:
(a) The triggering events requiring the provision of an option to BSI (or
its designee) to purchase the shares held by Valores are as follows:
(i) The Investors (as of the date of this Agreement) collectively no
longer control Valores or Grand Value, respectively,, as "control" is
defined in Section 7.5 above;
(ii) The Investors no longer represent, directly or indirectly, the
interests of banking institutions in Venezuela, provided, however, that
this shall not constitute
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a triggering event if ▇▇▇▇ and ▇▇▇▇▇▇ continue to "control" Valores
(directly or through control of Grand Value),, as "control" is defined in
Section 7.5 above;
(iii) To the extent that any of the Investors are individuals, the
individual Investor dies or otherwise becomes incapacitated, provided that
such death or incapacity shall not be a triggering event if the remaining
Investors collectively continue to control Valores and Grand Value,
respectively, as "control" is defined in Section 7.5 above;
(iv) Any of the Investors become insolvent or declare bankruptcy;
(v) Any of the Investors are charged with any criminal activity; or
(vi) Any transfer, sale, assignment, pledge or other disposition of
shares of Valores or Grand Value to any individual or entity which has
not been approved by BSI pursuant to this Agreement, provided,
however, that the Parties agree that the inclusion of this
circumstance as a triggering event under this section shall be in
addition to any claims, rights or remedies available to BSI for such
breach of the Agreement.
(b) In the event of a triggering event requiring that BSI (or its designee)
be given the option to purchase the shares of Custravalca held by Valores, BSI
(or its designee) shall have six (6) months from the date that BSI has knowledge
of the triggering event within which to provide notice of its intent to exercise
such option. Failure to provide written notice of its intent to exercise the
option within such six month period shall be deemed a rejection of the option.
In the event that BSI (or its designee) provides notice of its intent to
exercise the option, the purchase price for the option shall be the fair market
value for the shares, as determined by the procedure set forth in Section 7.3
above. BSI (or its designee) shall, however, have the right to decline to
purchase the shares, notwithstanding any prior notice to the contrary, in its
sole discretion, within 30 days following the determination of the fair market
value. Should BSI decide to proceed with the option to purchase the shares
following the determination of fair market value, the shares shall be
transferred within thirty five (35) days after the determination of fair market
value.
(c) Notwithstanding anything in this Agreement to the contrary, BSI shall
have the right, at all times, to approve any new investors or shareholders in
Valores and/or in Grand Value (whether by transfer, assignment, sale, pledge of
shares, issuance of new shares or otherwise). In addition to BSI approval,
Valores and the Investors agree that any new investor or shareholder in Valores
and/or in Grand Value must agree to be bound by the terms of this Agreement, by
execution and delivery to BSI of a written instrument evidencing the agreement
of such party to be so bound. Although subject to
15
the approval of BSI, the transfer of shares of Valores or Grand Value to any new
investor or shareholder shall not trigger a right of first refusal under this
Article. In addition, the transfer of Valores' shares in Custravalca Brink's to
an affiliate under common control of Valores, as "control" is defined in Section
7.5 above, shall not trigger a right of first refusal to BSI as set forth in
this Article, although any such transfer shall be subject to approval of BSI,
which approval shall not be unreasonably withheld. For purposes of this Section,
Valores and/or Grand Value shall provide written notice to BSI identifying any
new investor or shareholder of Valores or Grand Value, respectively, at least
forty five days prior to such individual or entity becoming a shareholder of
Valores or Grand Value, respectively; BSI shall provide written notice of its
decision (to approve or not to approve) within thirty days of receipt of such
written notice from Valores and/or Grand Value.
ARTICLE 8. CONDITIONS
8.1 This Agreement is subject to the following conditions:
(a) the purchase of shares of the Company for payment of US$858 and the
transfer of funds as a loan to the Company in the amount of US$7,967,817, in
accordance with Section 1.3; and
(b) The final closing with FOGADE on the Closing Date; and
(c) The execution of the Management Agreement and the Trademark License
Agreement attached hereto as Attachments B and C;
(collectively, the "Conditions").
8.2 In the event that the Conditions referred to under Clause 8.1 are not fully
satisfied in the time set forth in applicable provisions of this Agreement, this
Agreement shall terminate, without any liability to any other Party. Should the
Agreement terminate as a result of the failure of the conditions in (b) and (c)
above following payment of US$7,967,817 to the Company as provided in Section
1.3(b), this loan shall be repaid to Valores, provided, however, that all shares
in the Company held by Valores are transferred to BSI or to the Company (as may
be designated by BSI at the time).
ARTICLE 9. MANAGEMENT OF THE COMPANY AND RELATIONS WITH AFFILIATES
9.1 Management of the Company: (a) In light of its expertise in the industry,
BSI or its designated affiliate shall have the right to manage the Company and
shall enter into a Management Agreement with the Company in the form annexed as
Attachment B, as soon
16
as practicable following the Closing Date. BSI (or its designated affiliate)
shall provide advice to management personnel and shall provide know-how and
technical support to the Company for the management of its day-to-day
activities. BSI (or its designated affiliate) shall be entitled to take action
to assure that the Company is managed in accordance with Brink's standards.
Brink's shall be entitled to reimbursement of certain costs and expenses
incurred in connection therewith in accordance with the Management Service
Agreement.
(b) Pursuant to the Management Agreement, BSI or its designated affiliate
shall provide access to the Company for its use in engaging in the Business,
such proprietary software (which contains technology and information systems) as
is available to other Brink's related companies (at no acquisition cost),
provided, however, that neither BSI nor its designated affiliate assumes any
obligation to create any software for use in Venezuela or to otherwise modify
its existing software. In addition, BSI or its designated affiliate shall make
available to the Company for its use in engaging in the Business, any products,
components, hardware or other equipment which may be available to other Brink's
related companies, at a cost to be mutually agreed upon by the Company and
Brink's.
(c) BSI or its designated affiliate shall have the right to nominate the
individuals to serve as President and/or General Manager and other senior
officers of the Company (and/or its subsidiary or affiliated companies), which
nominations shall be subject to the approval of the Board of Directors. BSI or
its designated affiliate shall also have the right, subject to approval and
action by the Board of Directors, to recommend and/or approve the dismissal of
any individuals serving as President and/or General Manager or as other senior
officers.
(d) The President and/or General Manager and other senior management of the
Company shall be responsible for the hiring of necessary employees and the
overall supervision and conduct of the day-to-day business of the Company.
Management shall make all operational and security decisions relating to the
Company's business and objectives in accordance with Brink's standards.
Management shall prepare and implement budgets and business plans as approved by
the Board of Directors and shall prepare such periodic reports for presentation
to the Board of Directors as the Board may reasonably request from time to time.
Management shall be responsible for establishing guidelines for customer
contracts, including, but not limited to, pricing and liability-issues, which
guidelines shall be subject to review and approval by BSI.
9.2 Local and Market Support: Valores shall provide local logistical support for
the Company and shall, through the respective bank affiliations of the
Investors, provide a portion of the customer base for Custravalca Brink's and
its subsidiary and affiliated companies.
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9.3 International Air Courier Shipments: The Company shall provide ground
support in Venezuela for international air courier shipments on behalf of
Brink's (including all affiliated and related companies in its international
network of companies), whether in connection with exports from or imports into
Venezuela. The Shareholders agree that, notwithstanding anything contained in
this Agreement to the contrary, the Company shall be authorized to perform such
ground support services on behalf of Brink's at rates to be mutually agreed upon
between the Brink's company and the Company.
9.4 Accounting and Auditing: (a) The Company will establish and maintain
accurate and complete accounting records according to accounting principles
generally accepted in Venezuela and in the United States and in accordance with
standards prescribed by applicable law and regulation.
(b) The fiscal year of the Company shall end on December 31 of each year,
unless otherwise agreed by the Board of Directors. The Company shall, at its
expense, cause the books of the Company to be audited at the end of each fiscal
year by KPMG Peat Marwick Alcaraz, Cabrera, ▇▇▇▇▇▇▇ ("KPMG") or such other "Big
Six" internationally recognized firm of independent public accountants as the
Shareholders shall appoint and shall provide each of the parties with a copy of
its audited financial report within 7 days from receipt from the auditors and in
no event later than 120 days after the end of the relevant fiscal year. The
first auditor shall be KPMG. In addition, copies of all annual tax returns for
the Company shall be provided to the Shareholders within 7 days of filing with
the appropriate government entities.
9.5 Right of Inspection: BSI and Valores, through their duly authorized
representatives, shall each have the right at any time during office hours to
inspect the books and records of the Company and to obtain copies, at their own
cost, of statements, contracts, minutes, reports, correspondence and other
records and documents of the Company, subject to the confidentiality provisions
of this Agreement and any confidentiality requirements relating to the
information subject to inspection hereunder.
ARTICLE 10. TRADEMARKS
10.1 The Company shall have the non-exclusive rights by way of license during
the term of this Agreement to use the name "Brink's" and also the Brink's logos
(collectively referred to herein as the "Brink's Trademarks") in Venezuela in
connection with the business of the Company, as more fully defined in and
pursuant to the terms of the Trademark License Agreement in the form annexed as
Attachment C. The Parties expressly recognize that the Brink's Trademarks shall
at all times remain the exclusive property of Brink's. The Parties shall cause
the Company to execute the Trademark
18
License Agreement in the form attached hereto, as soon as practicable
following the Closing Date.
10.2 If this Shareholders' Agreement shall be terminated for any reason or if
Brink's shall no longer be a majority shareholder of the Company or if the
Management Agreement between Brink's (or its designated affiliate) and the
Company is terminated for any reason whatsoever or if any other conditions
described the Trademark License Agreement exist for termination, any right to
use the Brink's Trademarks or to otherwise indicate an affiliation with Brink's
shall thereupon immediately terminate. Upon termination of such right, the
Company, Valores and the Investors hereby undertake to Brink's and BSI that they
will neither claim any right to adopt or use, or will adopt or use, in any way
or for any reason the name of, or the trademarks (or any marks similar thereto
or any derivation therefrom) or other intellectual property rights belonging to,
or used by, Brink's. Furthermore, each of the Parties hereto and the Investors
undertake that upon the termination of the license, they will take all necessary
measures, including passing an appropriate resolution, to immediately change the
name of the Company to a name not including any word or words similar to Brink's
or any word or words which are likely to deceive or cause confusion and to
assure that the Company ceases any use of the Brink's Trademarks. The
obligations set forth in this section shall survive expiration or termination of
this Agreement.
ARTICLE 11. ROYALTIES
11.1 Commencing on January 1, 2000 (or such later date as may be mutually agreed
upon by the Parties hereto in the future), the Company shall pay to BSI, or its
designated affiliate, a royalty of three percent (3%) of the gross revenue of
the Company from whatever source derived. This royalty shall be in consideration
of the license to the Company of the Brink's name and other trademarks pursuant
to the terms of the Trademark License Agreement and recognizes the technology
and know-how to be provided to the Company by BSI pursuant to this Agreement and
the Management Agreement. It is understood that no royalty shall be payable
until such future date due to the financial obligations of the Company,
including its obligations to financial institutions in connection with the loans
referred to in Section 2.2(b) above.
11.2 The royalty payments required hereunder shall be paid on a quarterly basis.
The payment shall be made in U.S. Dollars, converted from local currency at the
average official rate of exchange for that quarter. Each royalty payment shall
be accompanied by a written report from the Company of the amounts of gross
revenue of the Company during such period and a statement giving an account of
the royalties due thereon.
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ARTICLE 12. CONFIDENTIALITY AND NON-COMPETITION
12.1 The Parties hereto and the Investors covenant with each other that, during
the term of this Agreement and for a two year period following its termination,
each shall maintain in strict confidence and secrecy and shall not, directly or
indirectly, use or disclose to a third party, any information of a proprietary
nature that it shall receive, directly or otherwise, pursuant to this Agreement
or in connection with the operation of the business of the Company, whether
relating or belonging to the Company or to any of the Parties or to the
Investors (except where the regulations relating to the stock exchange on which
a party or its parent company is quoted, requires certain disclosures, in which
case, disclosure shall be limited to the information required to be disclosed
and notice shall be provided to the other Shareholder). If warranted, any
disclosure and publicity by the Company or any one Party hereto or the Investors
must be through the written consent of the other Shareholder.
12.2 The Parties and the Investors agree that Brink's proprietary rights to its
technology, products, processes and know-how shall remain the sole and exclusive
property of Brink's and that neither the Company, Valores nor the Investors
shall obtain or attempt to assert any right or interest in such rights. Neither
the Company, Valores nor the Investors shall at any time use any such
information received from BSI or Brink's for any purpose other than for the sole
purpose of engaging in the Business of the Company in Venezuela, as set forth in
this Agreement.
12.3 (a) Valores and the Investors undertake that, during the term of this
Agreement, and for two years following the termination of the Agreement, they
will not participate, either directly or indirectly, in any business or company
in Venezuela which competes with the business of the Company.
(b) Valores and the Investors further undertake that, during the term of
this Agreement and for two years following its termination, they will not use,
directly or indirectly, any information of any nature whatsoever regarding the
Company and/or BSI or Brink's, including, but not limited to, information
regarding the operation of the business of the Company or Brink's, policies,
procedures, practices and/or customers, in connection with any business, whether
or not in Venezuela, which provides services in competition with the business of
Brink's.
(c) For avoidance of doubt, nothing in this Article shall preclude Valores
or the Investors' continued participation as shareholders of the Company upon
termination of this Agreement by BSI. In addition, nothing in this Article shall
preclude the continued operation of Custravalca Brink's in Venezuela following a
termination of the Agreement by BSI; the Company shall be entitled to continue
the Business of the Company (as defined in Section 4.1) in Venezuela following
such termination of this Agreement.
20
12.4 BSI undertakes that, during the term of this Agreement and for a two year
period following its voluntary sale of its shares in the Company thereby
terminating this Agreement, it will not participate, either directly or
indirectly, in any business or company in Venezuela which provides domestic
ground transportation by armored car and related services in Venezuela which
competes with the business of the Company as defined in Section 4.1 of this
Agreement. For avoidance of doubt, the Parties acknowledge and agree that
nothing in this section shall restrict or otherwise limit or preclude the right
of BSI or Brink's to engage, directly or indirectly, in the business of
international air courier shipments, for any commodity, either in connection
with imports into or exports from Venezuela, provided, however, that neither BSI
or Brink's shall itself perform domestic ground transportation for such shipment
in Venezuela.
12.5 The non-compete and confidentiality requirements set forth in this section
are of the essence to this Agreement. The Shareholders and the Investors
acknowledge and agree that a breach of the non-competition provisions would
cause damage estimated at USD 2,000,000 (Two Million U.S. Dollars), which amount
shall be paid as liquidated damages in the event of such breach.
ARTICLE 13. DURATION
13.1 This Agreement shall come into immediate effect when duly executed by all
the Parties and the Investors and shall continue in effect indefinitely unless
terminated as provided in Articles 8 and 14 hereof.
ARTICLE 14. TERMINATION
14.1 (a) BSI shall have the right to terminate this Agreement, by giving written
notice to Valores, upon the occurrence of any of the following events:
(i) The Company or Valores or the Investors is or becomes insolvent
(defined as the inability to pay off debts in the normal course of
business);
(ii) Proceedings in bankruptcy or under any insolvency law or for
reorganization, receivership or dissolution are instituted by or against
the Company or Valores or the Investors;
(iii) The Company shall fail to have or maintain any license, permit or
other regulatory approval or authorization required for the performance of
its activities under this Agreement or otherwise ceases to engage in the
business for a period of twelve consecutive months;
21
(iv) The Company or Valores or the Investors shall be voluntarily or
involuntary dissolved or wound-up;
(v) Valores or the Investors is in default of any material obligation under
this Shareholders' Agreement (not to include the attachments hereto) and
such default is not cured in accordance with Article 14.2; and
(vi) There is any change or anticipated change in the laws of Venezuela
which adversely impacts BSI's shareholding interest in the Company and
rights as set forth in this Agreement and the attachments thereto.
(b) Valores shall have the right to terminate this Agreement, by giving
written notice to BSI, upon the occurrence of any of the following events:
(i) The Company or BSI is or becomes insolvent (defined as the inability to
pay off debts in the normal course of business);
(ii) Proceedings in bankruptcy or under any insolvency law or for
reorganization, receivership or dissolution are instituted by or against
the Company or BSI;
(iii) The Company shall fail to have or maintain any license, permit or
other regulatory approval or authorization required for the performance of
its activities under this Agreement or otherwise ceases to engage in the
business for a period of twelve consecutive months;
(iv) The Company or BSI shall be voluntarily or involuntarily dissolved or
wound-up; and
(v) BSI is in default of any material obligation under this Shareholders'
Agreement (not to include the attachments hereto) and such default is not
cured in accordance with Article 14.2.
14.2 Upon the default by a Party in the performance of any material obligation
set forth in this Shareholders' Agreement (not to include the attachments
hereto), the other Party may give notice in writing to the Party in default
specifying the thing or matter in default. Unless such default is cured within
ninety (90) days following the giving of such notice, the Party giving such
notice may terminate the Agreement by providing written notice of termination
to the Party in default; this Agreement will then terminate upon the date set
forth in the notice. The exercise of the right to terminate this Agreement shall
be in addition to, and not in substitution for, any other remedies that may be
available to the Party serving such notice against the Party in default and any
termination of this
22
Agreement hereunder shall not relieve any Party from any obligations accrued
to the date of termination or relieve the Party in default from liability
and damages to the other for breach of this Agreement. Waiver by any Party
of a single default or a succession of defaults shall not deprive such Party
of any right to terminate this Agreement, or to have recourse to
arbitration, arising by reason of any subsequent default.
14.3 The right to terminate pursuant to Article 14.2 shall not arise from any
delays in or failure by a Party hereto in the performance hereunder if and to
the extent that it is caused by occurrences beyond such Party's control,
including, but not limited to, acts of God, strikes or other labor disturbances,
war, sabotage, governmental action or policy and any other cause or causes,
whether similar or dissimilar to those specified herein which cannot be
controlled by such Party.
14.4 In the event of a termination of the Agreement pursuant to Article 14.1,
the Parties undertake to cause the prompt winding-up of the Company and to take
all measures for attaining this purpose, unless otherwise agreed upon by all the
Parties to this Agreement. This notwithstanding, the Parties agree as follows:
(a) In the event of a termination due to a default as set forth in Sections
14.1 (a)(v), 14.1(b)(v) or 14.2 or due to financial situation of a Party (as
defined more fully in Sections 14.1(a)(i), (ii) and (iv) and 14.1(b)(i), (ii)
and (iv) above), the non-defaulting Party or the Party not experiencing the
difficulties giving rise to termination as defined in Sections 14.1(a)(i), (ii)
or (iv) or 14. l(b)(i), (ii) or (iv), as the case may be, shall have the option
to purchase the shares of such other Party or to find a third party purchaser
for such shares, at the fair market value of the shares at the time of
termination. If the Parties cannot agree as to the fair market value of the
shares, the procedures set forth in Article 7.3 shall be applied.
(b) In the event of a termination of the Agreement by BSI pursuant to
Article 14.1(a)(vi), Valores shall have the option to purchase the shares of BSI
or to find a third party purchaser for such shares, at fair market value based
upon the percentage shareholding interest held by BSI immediately prior to such
adverse government action. Should Valores not purchase the shares and a third
party purchaser not be found, thereby requiring a winding-up of the Company, BSI
shall receive a distribution of the assets based upon its percentage
shareholding prior to the adverse government action. If the parties cannot agree
as to the fair market value of the shares, the procedures set forth in Article
7.3 shall be applied, provided, however, that the determination of fair market
value shall be based upon the number of shares and the value of such shares
immediately prior to such adverse government action and provided, further, that
if the government action adversely impacts the value of the entire Company, the
international investment firms shall take this fact into account in reaching
such valuation.
23
14.5 This Agreement may also be terminated by any Party by providing one year's
written notice to the other of its intent to terminate the Agreement. In the
event such termination notice is provided, the following procedure shall apply,
commencing at the time that the termination notice is provided:
The Party seeking to terminate the Agreement ("Terminating Party") shall
offer to sell its shares to the other Party at either the fair market value of
said shares (to be determined in accordance with the procedure set forth in
Article 7.3) or at the price and under the terms offered by a third party (which
third party offer must be attached to the termination notice) (the "Offer
Price"). The other Party hereto shall have thirty (30) days following the offer
to accept or reject. Failure to provide written notice of its intent to accept
or reject within said thirty (30) day period shall be deemed a rejection. (A
partial purchase of the Offeror's shares shall not be permissible.) If accepted,
the transfer or sale of shares shall be completed within thirty (30) days. This
Agreement shall terminate on the date such sale or transfer is completed. If
rejected, then the Parties shall both use best efforts to sell the Terminating
Party's shares to a third party. This Agreement shall terminate with respect to
the Terminating Party on the date such sale or transfer to the third party is
completed; this Agreement shall, however, continue in effect as between the
other Shareholder and the third party, as provided in this Agreement.
ARTICLE 15. MUTUAL COOPERATION AND RELATIONSHIP
15.1 Each of the Parties and the Investors shall use their best efforts to
promote the success of the business of the Company and this Agreement and to
ensure that the Company shall operate as efficiently and profitably as possible.
15.2 With respect to this Agreement, each of the Parties and the Investors
hereto desire to establish the principle that they shall be just and faithful to
each other in all transactions relating to the business of the Company and to
exercise the utmost good faith and maintain the highest integrity in dealing
with one another.
15.3 The relationship between the Parties, as well as between BSI and the
Investors, under and in relation to this Agreement shall be limited to the
matters herein contained and what is provided for by law as the liability of a
shareholder to a Company, and nothing herein provided shall be considered or
interpreted as constituting the relationship of the parties or any of them as a
partnership, association or other relationship in which any one party may be
liable for the acts or omissions of the other party, nor shall anything herein
contained be considered or interpreted as constituting any party as the agent of
the other party.
24
15.4 The Parties agree that any agreements entered into between the Company and
any Shareholder or Investor shall be an arm's length transaction.
ARTICLE 16. GOVERNING LAW AND ARBITRATION
16.1 Except as otherwise provided in the attachments hereto, this Agreement
shall be governed by the laws of Venezuela.
16.2 If a dispute arises in connection with the interpretation or implementation
of this Agreement, the Parties will attempt to resolve such dispute through
friendly consultations. If the dispute cannot be resolved in this manner within
sixty (60) days after the commencement of discussions, said disputes shall be
finally settled under the Rules of Conciliation and Arbitration of the
International Chamber of Commerce, by one (1) arbitrator appointed in accordance
with said Rules. The site of the arbitration shall be in Paris, France. The
language of the proceedings, including documentation, shall be English.
The arbitrator shall not be entitled to award punitive damages. The arbitration
award, when filed with the parties hereto, shall be final and binding upon the
Parties. If necessary, judgment may be entered upon the final decision of the
arbitrator in any court having competent jurisdiction. The costs of the
arbitration shall be borne by the losing Party unless otherwise determined by
the arbitrator, provided, however, that each side shall bear its own cost of
counsel.
The above notwithstanding, BSI shall be permitted to proceed with arbitration in
Venezuela should it deem it appropriate under the circumstances presented to do
so.
ARTICLE 17. GENERAL PROVISIONS
17.1 Entire Agreement. This Agreement, including appendices hereto, embodies all
the terms and conditions agreed upon among the Parties hereto as to the subject
matter of this Agreement and supersedes and cancels in all respects all previous
agreements and undertakings, if any, among the Parties hereto, whether oral or
written.
17.2 Manner of Modification. This Agreement shall not be altered, changed,
supplemented or amended except in writing signed by the duly authorized
representatives of the Parties hereto.
17.3 Effect of Headings. The headings herein are for the purposes of reference
only and shall not form part of this Agreement or affect the construction or
interpretation hereof.
25
17.4 Severability. If for any reason any provision of this Agreement is or at
any time becomes illegal, invalid or unenforceable in any respect, the legality,
validity and enforceability of the remaining provisions of this Agreement shall
not in any way be affected or impaired.
17.5 Successors. This Agreement and all provisions hereof shall inure to the
benefit of and shall be binding upon the heirs, executors, legal
representatives, next of kin, transferees, successors and assigns of the Parties
hereto.
17.6 Notices. Except as otherwise provided in this Agreement, all notices
required or permitted to be given hereunder shall be in writing and in the
English language and shall be sent by telefax, confirmed by registered air mail
effective on the date of the telefax confirmation if the hard copy confirmation
is mailed on the same day or within two business days thereafter, to the
following addresses:
(a) For BSI:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇
▇.▇.▇.
Attention: President
Telephone No: (▇▇▇) ▇▇▇-▇▇▇▇
Telefax No.: (▇▇▇) ▇▇▇-▇▇▇▇
(With a copy to the General Counsel of Brink's, Incorporated at the same address
and to local counsel as designated by BSI.)
(b) For Valores, Cartera Central, C.A., Grand Value and ▇▇▇▇▇▇ ▇▇▇▇:
Av. Urdaneta, Esq. Animas
Edif. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
Telephone No: (▇▇▇) ▇▇▇-▇▇▇▇
Telefax No: (▇▇▇) ▇▇▇-▇▇▇▇
(c) For Cartera de Inversiones Venezolanas and for ▇▇▇▇▇▇ ▇▇▇▇▇▇:
Calle Guaicaipuro
entre Av. Las Mercedes y Carabobo
Torre Forum, Piso ▇▇
▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ VENEZUELA
26
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefax No: (▇▇▇) ▇▇▇-▇▇▇▇
17.7 Expenses. The Parties and the Investors agree that all expenses incurred by
BSI relating or incident to the purchase of the shares of Custravalca at the
public auction held by FOGADE, the establishment of Custravalca Brink's (except
for the required capital contributions from Shareholders), determination of the
structure of Custravalca Brink's and the negotiation and implementation of the
terms of this Agreement, including, but not limited to, all reasonable legal and
out-of-pocket expenses and all costs and fees relating to or in connection with
obtaining any and all equity and debt financing for the purchase of the shares
of Custravalca, shall be paid by the Company following the Closing Date.
17.8 Governing Language: This Agreement, including the appendices thereto, and
all further agreements, if any, between or among the Parties or the Investors or
the Company and BSI or Brink's shall be in the English language and English
shall be the governing language for all agreements. Should it be necessary to
translate any of the agreements for submission to any government entity or for
other legal purposes, an official Spanish translation will be provided which
shall be approved by counsel for all Parties. Notwithstanding that a translation
has been prepared, however, in the event of any discrepancy between the English
version and the translation, the English version shall prevail and English shall
remain the governing language.
17.9 Authorization. (a) The Parties hereto warrant that they are fully
authorized and empowered to enter into this Agreement on behalf of their
respective companies and that such action does not contravene any existing
statute, decree, contract or other provision of whatever nature and that the
signatures set forth below are authorized signatures and create a binding
agreement upon each of the Parties and the Investors.
(b) The Parties hereto also agree that this Agreement may be signed in
counterparts and that fax copies of signature pages shall constitute a valid and
binding commitment of the Parties. Original signature pages until be provided to
each of the Parties as quickly as possible following execution.
IN WITNESS WHEREOF, the Parties have signed this Agreement on the day and
year first hereinabove written.
BRINK'S SECURITY INTERNATIONAL, INC.
By: [Signature illegible]
-------------------------------------
Its: Vice President, General Counsel &
& Secretary
-------------------------------------
27
VALORES TAMANACO, C.A.
By: [Signature illegible]
-------------------------------------
Its:
-------------------------------------
CARTERA CENTRAL, C.A.
By: [Signature illegible]
-------------------------------------
Its:
-------------------------------------
CARTERA DE INVERSIONES
VENEZOLANAS, C.A.
By: [Signature illegible]
-------------------------------------
Its:
-------------------------------------
INVERSIONES GRAND VALUE, C.A.
By: [Signature illegible]
-------------------------------------
Its:
-------------------------------------
▇▇▇▇▇▇ ▇▇▇▇ (Individually)
▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇ (Individually)
▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
28
Draft Attachment "A"
Amended Art. of Inc.
BPMA&W, Jan. 10, 1997
MINUTES OF THE SPECIAL SHAREHOLDERS MEETING
OF
CUSTRAVALCA BRINK'S. C.A.
HELD ON JANUARY _ , 1997 AT _ A.M.
IN THE COMPANY'S OFFICES IN CARACAS
On the date and at the time mentioned above, the following shareholders met
after proper notice:
Mr. _______________________________,
representing BRINK'S SECURITY INTERNATIONAL,
INC., holder of ........................... shares
Mr. _______________________________,
representing VALORES TAMANACO, C.A.
holder of ................................. shares
Total shares
Messrs. _______________________________________ were also
present. Mr. ________________________ was designated to chair
the Meeting and Mr. __________________ to act as Secretary of
the Board of Directors.
The Secretary stated that the Meeting should be considered
legally met since the entire capital stock of the Company was
represented.
The Meeting then considered the following items:
- 2 -
1. An increase of the Company's capital, the issuance of new shares and the
subscription of the latter;
2. The amendment of the Articles of Incorporation-Bylaws of the Company;
and
3. The designation of Members of the Board of Directors, Officers of the
Board of Directors and Examiners.
One: The Chairman of the Meeting set forth the need to increase the
Company's equity capital to __________________________________________________
___________BOLIVARS (Bs. )____________________, fully paid in, by the issuance
of ____________________ (___________________ ) common registered shares of ONE
THOUSAND BOLIVARS (8s. 1,000) each, with the same characteristics as the
previous shares.
The motion having been submitted for consideration and after proper
discussion, the Meeting approved it unanimously. The shareholders then
subscribed the new shares as follows: BRINK'S SECURITY INTERNATIONAL, INC.
subscribed ________________ (_________) shares, equal to____________________
BOLIVARS (Bs._____________), that it has paid in _______________________; and
VALORES TAMANAC0, C.A. subscribed _____________________________________
(____________) shares, equal to _____________ (Bs.____________), that it has
paid in ____________________ .
Two: The Chairman then submitted to the consideration of the Meeting the
draft of the amended Articles of Incorporation and By-laws, which were discussed
and unanimously approved by the Meeting, to read as follows:
-3-
ARTICLES OF INCORPORATION AND BY-LAWS
OF
CUSTRAVALCA BRINK'S C.A.
CHAPTER I
Name, Domicile, Purpose and Duration
ARTICLE 1: The name of the Company is CUSTRAVALCA BRINK'S C.A.
ARTICLE 2: The Company shall have its domicile in the city of Caracas, but may
establish and keep facilities, offices, branches and agencies anywhere the Board
of Directors decides, in the Republic of Venezuela or in any other country.
ARTICLE 3: The purpose of the Company will be:
To contract for the transportation of valuables and collection of money, cash,
coins, gold, silver, platinum, and other precious metals or substances, gold or
silver articles, jewels, furs and precious stones, bank notes, legal tender,
checks, drafts, bills of exchange, guaranties, postal or express orders, bank or
pension drafts, bonds, debentures, certificates, coupons, acceptances, shares of
stock, negotiable or non-negotiable securities, as well as any other valuable
documents or objects, whether mentioned herein or not, using for the proper
means such purpose; to render courier and correspondence delivery services, as
well as interoffice or internal memoranda between customers of the Company; to
perform such investigation as may be required by insurance companies, banks, or
otherwise, and for such purpose to request, prepare and supply reports on the
representation, solvency, commercial standing or capacity of any individual or
corporation, as well as on any other relevant aspects concerning such individual
or corporation; to lease, purchase, sell or distribute warning, protection or
other
- 4 -
safety appliances, devices, or equipment, and the services deriving therefrom;
as well as to represent in Venezuela or in any other country or territory,
corporations that engage in manufacturing, sale or distribution of said
appliances, devices or equipment, and to render personal call and paging
services through radio communication stations.
In general, the Company may carry out all acts, contracts and negotiations
relating to the corporate purposes, proceeding as principal, agent,
representative, contractor or otherwise, acting on its own or jointly with one
or more individuals or corporations.
This list is merely illustrative, not limitative; consequently, the Company
may engage in such other lawful activity or business as may be resolved by the
Shareholders Meeting or the Board of Directors, or any other lawful transactions
or business related to such activities.
ARTICLE 4: The duration of the Company shall be ninety-nine (99) years,
commencing on the date of registration at the Mercantile Registry. This term
shall be extended for equal periods unless the shareholders resolve otherwise.
CHAPTER II
Capital. Shareholders and Shares
ARTICLE 5: The capital of the Company is ________________________________
BOLIVARS (Bs._______________ ), represented by and divided into__________
_______ (________) registered shares, which may not be changed to bearer shares,
having a par value of ONE THOUSAND BOLIVARS (Bs. 1,000) each, divided in
________________ (________) Class "A" shares and _____________ (________) Class
"B" shares, all of which have the same rights and obligations and
characteristics, except with regard
- 5 -
to the election of directors, officers of the Board of Directors and Examiners,
as provided for herein.
ARTICLE 6: The capital of the Company has been entirely subscribed and paid
in_______________, as follows: BRINK'S SECURITY INTERNATIONAL, INC. has
subscribed______________________ (_____________) shares
for_____________________BOLIVARS (Bs._____________); and VALORES TAMANACO, C.A.
subscribed __________________ (____________) shares for BOLIVARS
(Bs.___________).
ARTICLE 7: The stock certificates may include any number of shares and shall be
signed by the Chairman of the Board of Directors or whoever replaces him and by
one (1) principal or alternate member of the Board of Directors.
ARTICLE 8: Title to the registered shares shall be proven by the record in the
Company's Stock Register, an entry that must be signed by the holder, or his
attorney-in-fact who may be appointed by letter-proxy.
ARTICLE 9: The assignment of the registered shares, following compliance with
Article 8, shall be implemented by a statement in the Company's Stock Register,
signed by the assignor and the assignee, or by their attorneys-in-fact, who may
be appointed by letter-proxy.
Assignment, lien or disposal of any kind with respect to the shares shall
be subject to the following provisions:
1) No shareholder may sell, transfer, encumber, pledge, assign or in any
manner dispose of the shares held without complying with the provisions of this
document. Any action taken in violation of these provisions will be null and
void for the company and/or the other shareholders.
2) If a shareholder wishes to sell or transfer shares of the
- 6 -
Company (the "Offeror"), then the Offeror shall first give written notice (the
"Sale Notice") to the other shareholder (the "Offeree"), offering to sell any or
all of its shares in the Company (the "Offered Shares") to the Offeree, in
accordance with the provisions of this Article.
(a) If the Offeror has not yet received a bona fide offer from a third
party, the Offeror shall offer the shares at fair market value as of the date
the offer is made or deemed to have been made as determined in accordance with
Article 9.3. The Offeree shall have thirty (30) calendar days following receipt
of the Sale Notice or following the final determination of fair market value
under Article 9.3 (whichever is later) to accept or reject the offer to buy all
of the Offered shares by written notice to the Offeror. Failure to provide
written notice of its intent to accept or reject within this thirty (30)
calendar day period shall be deemed a rejection.
If accepted, the sale or transfer shall be completed within thirty (30)
calendar days. If rejected after the process outlined above, then the Offeror
shall have the right to sell or transfer the Offered Shares to a third party,
provided that: (a) the selling price and the terms of the sale or transfer to
the third party shall not be more favorable than those offered to the Offeree;
(b) any transfer to the third party must be completed within three months
following the final rejection of the offer by the Offeree; (c) the Offeree
consents, in writing, to the sale or transfer to that third party, which consent
shall not be unreasonably withheld; and (d) the third party complies with the
provisions of any agreement between the Shareholders related with the Company.
-7-
(b) If the Offeror has received a bona fide offer from a third party to
purchase the Offered Shares which the Offeror is prepared to accept, then a copy
of that third party offer shall be attached to the Sale Notice to be provided to
the Offeree. The Sale Notice shall constitute an offer, irrevocable within the
time hereinafter specified for acceptance, by the Offeror to sell all of the
Offered Shares to the Offeree at the same price per share of each class and on
the same terms and conditions as set forth in the third party offer to purchase
attached to the Sale Notice. The Offeree shall have thirty (30) calendar days
following receipt of the Sale Notice from the Offeror to accept or reject the
offer to buy all of the Offered Shares by written notice to the Offeror. Failure
to provide written notice of its intent to accept or reject within this thirty
(30) calendar days period shall be deemed a rejection.
If accepted, the sale or transfer shall be completed within thirty (30)
calendar days. If rejected after the process outlined above, then the Offeror
shall have the right to sell or transfer the Offered Shares to any third party
(whether or not the third party making the original offer), provided that: (i)
the sale or transfer shall be completed pursuant to terms no more favorable than
those contained in the third party offer and which were attached to the Sale
Notice; (ii) any sale or transfer to the third party must be completed within
three months following the final rejection of the offer by the Offeree; (iii)
the Offeree consents, in writing, to the sale or transfer to that third party,
which consent shall not be unreasonably withheld; and (iv) the third party
complies with any agreements between the Shareholders related to the Company.
ARTICLE 10: The shares shall grant equal rights to their holders
- 8 -
and shall be indivisible to the Company, which shall recognize only one holder
per share; therefore, should a share come to be held by two (2) or more persons,
it must be represented by one person alone.
ARTICLE 11: The shares which must be deposited in the corporate treasury,
pursuant to these Articles of Incorporation and By-laws, for purposes of Article
244 of the Commercial Code, shall be inalienable and they are to be handled as
provided for in said Article 244.
CHAPTER III
General Shareholders Meetings
ARTICLE 12: The supreme management of the Company is vested in the Shareholders
Meeting and all lawful decisions thereof shall be binding on all the
shareholders.
ARTICLE 13: The Annual Shareholders Meeting shall be held once a year, wherever
specified by the Board of Directors, within three (3) months following the end
of the Company's fiscal year, and must be called by the Board of Directors no
less than fifteen (15) days in advance by notice to the shareholders or their
representatives or publication in one of the newspapers of the Company's
domicile, stating the purpose, date, place and time of the meeting. Special
Shareholders Meetings shall be called with the notice specified above when
deemed necessary by the Board of Directors or at the request of shareholders
representing one fifth of the equity capital.
The provisions of the Commercial Code in this regard shall apply to any
second call for an Annual or Special Shareholders Meeting.
ARTICLE 14: The Annual Shareholders Meeting has the following powers:
- 9 -
1) To discuss and approve, amend or revise the balance sheet and the
accounts, having seen the Examiner's Report;
2) To elect the principal and alternate Directors;
3) To appoint the Examiners and their alternates;
4) To set the salaries and remunerations, if any, of the members of the
Board of Directors and the Examiners; and
5) To consider any other item duly placed before it.
ARTICLE 15: For the validity of the deliberations and decisions of the Annual
and Special Shareholders Meetings, the presence or representation of
shareholders representing one half plus one of all the shares in the Company and
the approval of the simple majority of the votes present at the meeting shall be
required.
The above notwithstanding, the presence and favorable vote of shareholders
representing at least seventy-five percent (75%) of the Company's equity capital
shall be required for the validity of deliberations and decisions on the
following special matters:
a) Change in the business of the Company as defined by this Agreement;
b) Amendment of the Articles of Incorporation and By-Laws involving the
matters set forth in these provisions;
c) Except as otherwise agreed upon by the shareholders in any written
agreement, the sale of assets of the Company with a value in excess of the
Bolivar equivalent of US$2 Million, which amount shall be adjusted annually for
inflation;
d) The decision to wind-up, dissolve or liquidate the Company or to place
the Company in bankruptcy;
e) Any merger or consolidation of the Company with unrelated Company;
f) Any change in the dividend policy of the Company;
g) Any agreement between the Company and any shareholder or
- 10 -
Investor, not in the ordinary course of business;
h) Any decision seeking additional capital contributions from the
Shareholders in an aggregate amount in excess of the Bolivar equivalent of USD
5,000,000 (Five Million U.S. Dollars) per year or seeking a guarantee by the
Shareholders of indebtedness of the Company in an aggregate amount in excess of
the Bolivar equivalent USD 5,000,000 (Five Million U.S. Dollars) per year; and
i) Any decision to submit the shares of the Company to a public auction.
Solely for purposes of Article 95 of the Law at the Central Bank of Venezuela,
all amounts given in foreign currency are equivalent to , and at
the current rate of exchange of Bs 475 per US$1.00,
Shareholders who are unable to attend the Shareholders Meeting in person
for any reason or cause are entitled to be represented thereat by proxies
appointed by letter, cable, telex, telefax or any other means of electronic
transmission, addressed to the Board of Directors.
ARTICLE 16: The Annual and Special Shareholders Meetings shall be considered
validly met to deliberate and resolve, without the need to comply with the
requirement of prior call, whensoever all the shareholders or their duly
appointed proxies are present.
ARTICLE 17: Minutes of every Shareholders Meeting are to be drawn up during a
recess called for this purpose, and shall be signed by all those present,
stating their names, the assets represented and the decisions reached. These
minutes are to be entered in the Minute Book of the Shareholders Meetings.
- 11 -
CHAPTER IV
Administration
ARTICLE 18: The management and administration of the Company shall be vested in
a Board of Directors comprising of five (5) Directors who shall have their
respective alternates. The principal and alternate Directors may or may not be
shareholders of the Company and shall be elected at the Annual Shareholders
Meeting as follows: a) Class "A" shareholders will elect, separately from the
other shareholders, three (3) principal directors and their respective
alternates; and Class "B" shareholders shall elect, separately from the other
shareholders, two (2) principal directors and their respective alternates. The
Directors shall remain in office for one (1) year, unless the Shareholders
Meeting decides on early dismissal, or until their successors have been
appointed and have taken office. In the event of the absence of a Director, the
alternate representing the same class of shares shall perform his duties. In the
event of a permanent absence of one of the principal members of the Board of
Directors, the latter must call a Special Shareholders Meeting within thirty
(30) days to appoint the person who is to hold office for the remainder of the
term. The holders of each class of shares shall have the right to remove the
directors designated by them, for which purpose a Special Shareholders Meeting
shall be called, at which the holders of the other class of shares shall be
bound to be present and vote favorably.
The Annual Shareholders Meeting shall proceed to designate as Chairman of
the Board of Directors a director proposed by the Class "A" shareholders.
The Shareholders Meeting shall also designate as the Secretary of the Board
of Directors and his alternate, persons who may or may
- 12 -
not be members of the Board of Directors, proposed by the Class "A"
shareholders.
ARTICLE 19: The Board of Directors shall meet regularly; however, it can also
meet when it deems it necessary in the Company's best interests. Any 2 Directors
may request the Chairman to call for a Board Meeting. The meetings shall be
called by the Chairman of the Board of Directors or whoever replaces him, by
means of notices to the directors, indicating the purpose of the meeting,
regularly at least fourteen (14) calendar days in advance, except if the
directors unanimously agree on shorter notice or if the urgency of the matter to
be discussed justifies it and with the consent of at least three (3) directors.
For a second meeting of the Board of Directors, in the event of a lack of quorum
at the first meeting, the call may be made at least five (5) days in advance;
and if a third meeting is necessary due to the lack of quorum at the second
meeting, the third meeting will be automatically deemed to have been called on
the business day following the date of the second meeting, at the same place and
time. The Board of Directors Meetings may be held by means of a communication
among the directors by means of video or telephone conference or other
electronic means.
ARTICLE 20: The presence of at least four (4) directors shall be required for
the validity of the meetings of the Board of Directors, at the first and second
call, if any. In the event of a third call, the presence of three (3) directors
will suffice. The resolutions of the Board of Directors shall be adopted with
the favorable vote of the majority of the directors present.
ARTICLE 21: For the purposes set forth in Article 244 of the Commercial Code,
one (1) Company share must be deposited in the corporate treasury by each of the
members of the Board of Directors
- 13 -
or by a shareholder on his behalf.
ARTICLE 22: The Board of Directors shall be vested with full powers for the
administration and control of the Company's business. Without prejudice to the
general powers granted herein, the Board of Directors may specifically:
1) Carry out the administration of the Company;
2) Approve, authorize and enter into contracts of all kinds, including
loans, credit and advances of any kind, as and under the terms and conditions it
deems advisable;
3) As part of the corporate purposes, decide upon the purchase, addition or
disposal of any of its real or personal assets;
4) Appoint managers, assistant managers, representatives and
attorneys-in-fact, as well as employees, and set the remuneration and other
terms of employment of all corporate personnel;
5) Authorize the granting of general and special powers of attorney to
represent the Company in or out of court and authorize the revocation of said
powers of attorney;
6) Establish the administration of the Company and determine the rules and
regulations for the proper operation thereof, and require whatever bonds and
security it deems necessary from the personnel;
7) Use the legal reserve fund in accordance with the legal provisions
relating thereto;
8) Place before the Annual Shareholders Meeting a summary statement of the
Company's operations, a balance sheet and a profit and loss statement; .
9) Decree the distribution of dividends from the net profits among the
shareholders;
- 14 -
10) Appoint the individuals authorized to open, sign on and close bank
accounts;
11) Appoint the individuals authorized to issue, sign, accept and negotiate
checks, drafts, promissory notes or credit instruments of all kinds;
12) Represent the Company through the Chairman, or any other Board member
authorized for this purpose, before the judicial, administrative and labor
authorities, with the express power to dismiss proceedings or actions brought by
the Company, invoke ordinary and extraordinary legal remedies of any kind, bring
and defend suits; submit to arbitration, either that governed by equitable
principles or that restricted to application of the law and, in general,
represent the Company with the same full powers;
13) Call the Annual and Special Shareholders Meetings;
14) Exercise any other authority or power needed to achieve the corporate
purpose, with the exception of those specifically attributed by law or the
By-laws to another officer or body.
The powers, rights and obligations listed above are for illustrative and
not limitative purposes and therefore do not restrict the powers of the Board of
Directors, which has full powers when no Shareholders Meeting is being held, and
authorize it to represent and do business on behalf of the Company with no
reservations whatsoever except for the authority expressly granted to the
Shareholders Meeting or the Examiners.
The Board of Directors may delegate any of its powers to directors,
officers or such persons as it chooses, but this delegation shall appear in
specific and written form.
ARTICLE 23: The Chairman of the Board of Directors shall be the out-of-court
legal representative of the Company and shall have the
- 15 -
powers granted to him by these Articles and by the law as well as those
delegated by the Shareholders Meeting or the Board of Directors. Without
prejudice to the powers and responsibilities assigned to him by these entities,
the Chairman shall specifically:
1) Chair and conduct the Shareholders Meetings.
2) Chair and conduct the meetings of the Board of Directors.
3) Call the Shareholders Meetings and the Board of Directors meetings.
4) Comply with and see to the enforcement of the resolutions of the Board of
Directors.
ARTICLE 24: The Secretary of the Board shall have the powers and duties
specified by the Board of Directors, inter alia, specifically, to keep the legal
books of the Company and to certify minutes of the Board of Directors' and
Shareholders Meetings. The alternate, when designated, will act in the Principal
Secretary's absence.
CHAPTER V
The Judicial Representative
Article 25: The representation of the Company for all judicial actions and
matters shall be entrusted to a Judicial Representative, who shall be elected by
a Shareholders Meeting and may be dismissed at any time by a Shareholders
Meeting. The Judicial Representative shall be the only person, with the
exception of duly appointed attorneys-in-fact, authorized to represent the
company on judicial matters and, as such, may accept any service of process
and/or judicial notice addressed to the company. Moreover, the Judicial
Representative shall be the only person, with the exception of duly appointed
attorneys-in-fact, authorized on behalf of the company to initiate, answer,
bring and oppose legal actions, demurrers and
- 16 -
counterclaims of all kinds; to receive processes, summons and/or notices; to
accept service of process; to conduct cases at the trial and appellate levels
and to appeal, even before the Supreme Court of Justice; to file, announce,
formalize, continue and withdraw ordinary and extraordinary legal remedies,
including the remedy of cessation; to call for, furnish and contest proof of any
kind; to petition, seek enforcement of, process and oppose preventive or
executive judicial measures of all kinds and, in general, to do all he considers
advisable and/or necessary to best defend the company's judicial interests, as
the foregoing enumeration of powers is illustrative and not limitative. It is,
however, expressly understood that the Judicial Representative may consent to
entry of judgment in accordance with the complaint, dismiss proceedings,
compromise and settle, submit to arbitration, either that governed by equitable
principles or that restricted to enforcement of the law, make bids and purchase
goods at auctions and give or receive sums of money, provided the Board of
Directors has given its prior authorization in writing.
The aforementioned Judicial Representative is the only person authorized to
give sworn testimony before the courts of the Republic of Venezuela on behalf of
the Company, without prejudice to the power of delegation provided for in the
Code of Civil Procedure.
The Judicial Representative shall have an alternate to act in his temporary
absence.
The appointment of the Company's Judicial Representative is without
prejudice to the Board of Directors' right to appoint special or general
judicial attorneys-in-fact to represent the Company before the administrative or
judicial bodies, when considered to be in the Company's best interests
specifying their
- 17 -
powers. The aforementioned attorneys-in-fact are to exercise their powers
jointly or severally with the Judicial Representative, as provided for in the
relevant power of attorney.
CHAPTER VI
The Examiner
ARTICLE 26: The Company shall have two (2) Examiners, one proposed by the Class
"A" shareholders and the other proposed by the Class "B" shareholders. Each
principal shall have an alternate proposed in the same manner, who will fill the
absences of the respective principal. The principal and alternate Examiners
shall have the powers and prerogatives which the Commercial Code assigns to that
office. They shall be elected by the Annual Shareholders Meeting and shall hold
office for one (1) year, unless removed from office earlier by a decision of a
Shareholders Meeting, or until their successors have been elected and taken
office.
CHAPTER VII
Fiscal Year. Balance Sheets and Profits
ARTICLE 27: The Company's first fiscal year started on the date it was
registered at the Mercantile Registry and shall end on December 31, 1997;
thereafter the Company's fiscal year shall commence on January 1 and end on
December 31 every year.
ARTICLE 28: At the end of each fiscal year, the Board of Directors shall prepare
the balance sheet as provided for in Article 304 of the Commercial Code and
shall deliver it to the Examiner at least one (1) month before the day set for
the Annual Shareholders Meeting at which it is to be discussed.
ARTICLE 29: The net profits shall be determined by deducting the
- 18 -
general expenses, amortization, and corporate liabilities from the Company's
entire gross income.
ARTICLE 30: At least five percent (5%) of said net profit shall be set aside
annually to create the reserve fund provided for in Article 262 of the
Commercial Code until said fund totals the equivalent of ten percent (10%) of
the equity capital. Furthermore, any other amounts deemed advisable by the Board
of Directors and the Shareholders Meeting that approves the balance sheet shall
be set aside for reserve or guaranty funds.
The balance, in other words the net profit, shall be placed at the disposal
of the Board of Directors to be distributed among the shareholders as a dividend
or to be invested in the Company's benefit or for any other purpose which the
Board of Directors considers appropriate. Dividends declared and not claimed
shall not earn interest.
CHAPTER VIII
Dissolution and Liquidation
ARTICLE 31: The Company may be dissolved before expiration of the duration for
any of the reasons set forth in Article 340 of the Commercial Code."
Three: The Meeting then proceeded to make the following designations:
1. Members of the Board of Directors:
- 19 -
FOR CLASS "A" SHARES
PRINCIPAL DIRECTORS:
Name Identification Nationality
---- -------------- -----------
ALTERNATE DIRECTORS:
Name Identification Nationality
---- -------------- -----------
FOR CLASS "B" SHARES
PRINCIPAL DIRECTORS:
Name Identification Nationality
---- -------------- -----------
ALTERNATE DIRECTORS:
Name Identification Nationality
---- -------------- -----------
2. For the first term of the Board of Directors (identify)
-----------------------
_______ is appointed Chairman of the Board of Directors: (identify)
---------------------
________ is appointed Secretary; and (identify) is
-----------------------------
appointed Alternate Secretary.
3. __________________________________ is appointed Judicial Representative and
________________________________, his alternate, both being attorneys at law,
Venezuelan citizens, of this domicile and registered at the
- 20 -
Attorneys' Social Welfare Institute under No.__________ and No._____________,
respectively.
4. The following Examiners are appointed: For Class "A" shareholders,
__________________, a public accountant, of this domicile, bearer of ID Card
__________________________ and registered at the Public Accountants Association
of _____, CPA No._____, and his alternate________________________, a public
accountant, of this domicile, bearer of ID Card _____________________ and
registered at the Public Accountants Association of_______________, CPA No.
______. For Class "B" shares:_________________, a public accountant, of this
domicile, bearer of ID Card _________________ and registered at the Public
Accountants Association of______________, CPA No.________, and his
alternate__________________, a public accountant, of this domicile,
bearer of ID Card _________________________ and registered at the
Public Accountants Association of __________________, CPA No.______
There being no further business, the meeting adjourned, authorizing the
Secretary of the Board of Directors to certify the minutes and______________ to
take the appropriate legal steps.
(Sgd)__________________ (Sgd)___________________
CERTIFICATION
Attachment B
MANAGEMENT AGREEMENT
This Management Agreement, made this ___ day of January, 1997, by and
between CUSTRAVALCA BRINK'S, C.A. (the "Company"), a company organized and
existing under the laws of Venezuela, and BRINK'S INTERNATIONAL MANAGEMENT
GROUP, INC. ("BIMG"), a company organized and existing under the laws of
Delaware, U.S.A.
WHEREAS, the Company provides the following services in Venezuela: armored
car services for the transportation of currency, diamonds and jewelry, bullion
and other valuables and securities; servicing of automated teller machines,
including cash replacement, deposit pick-up and maintenance; processing,
counting and wrapping coin; processing and counting paper currency; providing
various currency vaulting services; and providing ground support for air courier
services (collectively, the "Services");
WHEREAS, BIMG, by itself and through its parent corporation, Brink's,
Incorporated, and affiliated companies (collectively "Brink's"), has long been
engaged in and has significant expertise in providing such Services on a
worldwide basis;
WHEREAS, the Company desires to have BIMG provide to it various management
and related services in order to establish and maintain quality and efficient
Services in Venezuela, and BIMG is willing to provide such services to the
Company.
NOW THEREFORE, in consideration of the promises and mutual covenants
contained herein the parties hereto agree as follows:
1. (a) BIMG shall provide technical assistance and management services to the
Company to assist it in establishing and maintaining on an ongoing basis the
Services in Venezuela. Such technical assistance and management services shall
include advice and assistance with respect to operational and security
procedures and policies, training, insurance, sales and marketing, management
information systems, accounting systems and procedures, financial, legal and tax
matters and employee relations.
(b) BIMG shall select the President and/or General Manager of the Company,
who shall serve subject to the approval of the Board of Directors. BIMG shall
have the right to assist the President and/or General Manager in the selection
of other senior
1
officers of the Company and its subsidiary and affiliated companies and shall
have the right to approval all such appointments. BIMG shall also have the right
to recommend and approve the removal of the President and/or General Manager or
any other management employee.
(c) To the extent necessary, BIMG shall provide training to management
personnel of the Company and shall assist the Company in the development of
ongoing training programs.
(d) BIMG shall provide assistance and recommendations to the Company in
connection with preparation of annual budgets and business plans, for submission
to the Board of Directors and/or Shareholders of the Company for their approval.
BIMG shall also provide assistance and recommendations to management of the
Company for the establishment of guidelines for customer contracts, including,
but not limited to, pricing and liability issues, which guidelines shall be
subject to approval by BIMG.
(e) As and to the extent requested by the Company, BIMG shall, subject to
availability of such qualified personnel, provide services in relation to such
other matters as may be covered by such request.
2. Although day-to-day management of the Company shall remain the responsibility
of the Company's management personnel, BIMG shall be entitled to take such
action as it deems appropriate to assure that the Services are provided by the
Company in accordance with Brink's standards, including, but not limited to,
securing the implementation by the Company: (a) of appropriate policies and
procedures; and (b) of recommendations regarding such items as staffing,
customer contracts, insurance, vehicles, security concerns and such other
matters as appropriate under the circumstances presented or as BIMG, in its
sole discretion, deems necessary for security and/or insurance purposes.
3. The Company shall pay to BIMG as compensation for the above services an
amount which represents full reimbursement of costs and expenses incurred in
connection with providing these services, to include travel and related expenses
(e.g., hotel, food, transportation) for any Brink's personnel providing services
to the Company under this Agreement and reimbursement of salary for any Brink's
employee who spends at least one week in Venezuela providing services to the
Company, and such other costs and expenses as may be agreed in the future by the
Company and BIMG.
4. (a) BIMG agrees to provide access to the Company for its use in providing the
Services such proprietary software (which contains technology and information
systems) as is available to other Brink's related companies (at no acquisition
cost to the
2
Company), provided, however, that BIMG does not assume any obligation hereunder
to create any software for use in Venezuela or to otherwise modify its existing
software.
(b) In addition, BIMG agrees to make available to the Company for its use
in providing the Services any products, components, hardware or other equipment
which may be available to other Brink's related companies, at a cost to be
mutually agreed upon by the parties.
(c) The above notwithstanding, the parties acknowledge and agree that
Brink's proprietary rights to its technology, products, processes and know-how
shall at all times remain the sole and exclusive property of Brink's and that
the Company shall not obtain or attempt to assert any right or interest in such
rights. Further, the Company shall not at any time use any such information
received from Brink's for any purpose other than for the sole purpose of
providing the Services in Venezuela.
(d) Upon the expiration or termination of this Agreement for any reason,
the Company shall cease using and shall not thereafter use for any purpose
whatsoever, any proprietary software, technology, products, processes and
know-how of Brink's, or any information relating thereto, and shall, upon the
request of BIMG, return to Brink's copies of any software, products or material
made available to the Company by Brink's in connection with this Agreement.
5. The Company hereby further agrees to maintain the strict confidentiality
of and not to disclose, directly or indirectly, to third parties, any
information it acquires during the course of or in connection with this
Agreement relating in any way to the business of Brink's, including, but not
limited to, policies, procedures, practices, training programs, customers or
insurance. This paragraph shall not apply to: (i) information which is in the
public domain, provided that it is not in the public domain through a breach
of this Agreement by the receiving party; (ii) information which can be
demonstrated to be independently developed by the receiving party; or
(iii) information which the parties agree is no longer confidential.
6. Nothing in this Agreement shall be deemed to create a partnership, agency or
other relationship between the parties. The parties enter into this Agreement as
independent contractors.
7. (a) BIMG shall not be liable for non-performance or delays not caused by its
fault or neglect, nor for non-performance or delays caused by strikes, lockouts
or other labor disturbances, riots, acts of God or means beyond BIMG's control.
3
(b) In no event shall BIMG have any liability under this Agreement which
exceeds the amount of compensation paid to it pursuant to this Agreement for the
prior twelve month period.
(c) The Company shall indemnify and hold BIMG and Brink's harmless,
including, but not limited to, reasonable attorneys' fees, in connection with
any claim, lawsuit and/or demand by any of the Company's shareholders or third
parties with respect to any act or decision of the Company, whether or not such
act or decision was taken pursuant to the recommendation of BIMG or Brink's.
8. This Agreement shall terminate: (i) upon the termination of the Shareholders'
Agreement dated January 10, 1997 by and between Valores Tamanaco, C.A. and
Brink's Security International, Inc. ("BSI"); (ii) at such time as BSI (or
another Brink's affiliated company) ceases to be a shareholder of the Company;
or (iii) upon the termination of the Trademark License Agreement between the
Company and Brink's Network, Inc.
9. Any notice required hereunder shall be given to the other party in writing in
the English language by registered mail or registered air express service as the
addresses set forth below or at such other address as may be specified in a
written notice given by either party to the other.
10. No amendment, alteration, change or addition hereto shall be made other than
by a writing signed by authorized representatives of both parties.
11. BIMG shall have the right to assign this Agreement to any affiliated company
which is controlled, directly or indirectly, by Brink's, Incorporated.
12. (a) This agreement shall be construed under the laws of the State of
Delaware, United States of America.
(b) Any dispute arising out of or in connection with this Agreement shall
be finally settled by arbitration in accordance with the Rules of Conciliation
and Arbitration of the International Chamber of Commerce by one arbitrator in
accordance with such Rules. The arbitration proceedings shall be conducted in
Paris, France. Arbitration proceedings, including documentation, shall be in
the English language. The above notwithstanding, BIMG shall, at its discretion,
have the right to seek injunctive relief in any court of competent jurisdiction
in the event of any breach of this Agreement.
The arbitrator shall not be entitled to award punitive damages. The
arbitration award, when filed by the parties hereto, shall be final and binding
upon the parties. If necessary, judgment may be entered upon the final decision
of the arbitrator in any court
4
of competent jurisdiction. The costs of the arbitration shall be borne by the
losing party, unless otherwise determined by the arbitration panel, provided,
however, that each side shall bear its own cost of counsel.
13. The governing language for this Agreement shall be English. In the event a
translation should be legally required, the Agreement shall be translated by a
public translator; the translation shall be approved by the Company and BIMG.
Notwithstanding the existence of a translation, in the event of any discrepancy
between the English version and the translated version, the English version
shall prevail and English shall remain the governing language.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement on the
day and year first hereinabove written.
CUSTRAVALCA BRINK'S, C.A. BRINK'S INTERNATIONAL
MANAGEMENT GROUP, INC.
By By
_______________________________ ___________________________________
Name/Title Name/Title
Address: Address:
5
Attachment C
TRADEMARK LICENSE AGREEMENT
THIS AGREEMENT, effective as of ___________________________ (hereinafter
referred to as the "EFFECTIVE DATE"), by and between Brink's Network,
Incorporated, a Delaware Corporation, with its principal office for the
transaction of business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(hereinafter referred to as "LICENSOR"), and Custravalca Brink's, C.A., a
corporation incorporated under the laws of Venezuela, with principal office for
the transaction of business at ___________________________, Venezuela
(hereinafter referred to as "LICENSEE").
WITNESSETH:
WHEREAS, Brink's, Incorporated, a Delaware corporation, has for many years used
one or more of its TRADE SYMBOLS (as hereinafter defined), has obtained
registrations for its trademarks and servicemarks and has established
substantial goodwill throughout the world in connection with said trademarks and
servicemarks;
WHEREAS, LICENSOR has been granted the right by Brink's, Incorporated to license
the TRADE SYMBOLS to third parties, in countries, areas or territories as
LICENSOR shall deem necessary and desirable;
WHEREAS, LICENSEE desires to provide services as defined below (hereinafter
referred to as the "SERVICES"), utilizing the TRADE SYMBOLS, in the TERRITORY,
as hereinafter defined, under grant of right by LICENSOR;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the parties hereto agree as follows:
1. Definitions
For the purpose of this Agreement, the following definitions shall apply:
a) The term "TRADE SYMBOLS" shall mean:
i) the trademark or servicemark "Brink's" and variations thereof; and
ii) such slogans, labels, copyrights, emblems, insignia, and other
trade identifying symbols used or registered by Brink's,
Incorporated and/or LICENSOR anywhere in the world in connection
with the sale of the SERVICES or hereafter designated by LICENSOR
in writing for use in connection with the SERVICES,
whether or not said TRADE SYMBOLS be registered in the TERRITORY.
b) The term "TERRITORY" shall mean Venezuela.
c) The term "affiliated business organizations", "affiliated company" or
"affiliates" shall mean any person, firm or corporation that directly or
indirectly, through one or more intermediaries, controls or is controlled by
or is under common control with the company named.
d) The term "control" (including the terms "controlling", "controlled by"
and "under common control with") as used herein shall mean the possession,
direct or indirect, or the power to direct or cause the direction of the
management and policies of any person, firm or corporation, whether through
ownership of voting securities, by contract or otherwise.
e) the term "SERVICES" shall mean armored car services for the
transportation of currency, diamonds and jewelry, precious metals and other
valuables and securities; servicing of automated teller machines, including
cash replacement, deposit pick-up and maintenance; processing, counting and
wrapping coin; processing and counting paper currency; providing various
vaulting services; providing international freight forwarding services for
valuables (including customs clearance) and providing ground support for air
courier services and all other services related to the foregoing.
2. Grant or Right to Use of the TRADE SYMBOLS
LICENSOR, to the extent that it may be able lawfully to do so, hereby
grants to LICENSEE, during the term of this Agreement and subject to its terms
and conditions, a non-exclusive and non-transferable right to use of the TRADE
SYMBOLS in relation to the SERVICES within the TERRITORY. It is expressly
understood that the rights granted herein do not extend to any other item,
except those specific items set forth as the SERVICES, which such rights are
expressly reserved to LICENSOR. Nothing herein contained shall prohibit, limit
or restrict Brink's, Incorporated, or LICENSOR, in any form or manner from
using, in the TERRITORY, the TRADE SYMBOLS, or any of
2
them either alone or as a component of another trademark and nothing herein
contained shall prohibit, limit or restrict Brink's, Incorporated or LICENSOR
from licensing or otherwise disposing of such use, in the TERRITORY, to any
other person, firm or corporation. LICENSOR reserves the right to change or
alter the definition, scope, design and/or content of the TRADE SYMBOLS and the
TERRITORY during the continuance of this Agreement in which event, LICENSEE
agrees to conform to and abide by such changes or alterations. LICENSEE shall
have no right to sub-license the use of TRADE SYMBOLS.
3. Quality Control and Inspection
a) The permitted use by LICENSEE of the TRADE SYMBOLS shall be subject to
the instructions of LICENSOR furnished to LICENSEE from time to time, and
shall be made only in relation to the SERVICES which conform to standards
and specifications furnished and/or approved, from time-to-time by
LICENSOR. LICENSEE shall upon request by the LICENSOR submit to LICENSOR
for approval designs, materials, packages, labels promotional materials
and advertising for use in relation to the SERVICES. LICENSEE shall not
offer for sale any of the SERVICES using the TRADE SYMBOLS which are of
a quality or a standard inferior to that approved by LICENSOR or which
will tend to injure the reputation and goodwill attached to the
TRADE SYMBOLS.
b) LICENSEE shall at all times permit LICENSOR by representatives
designated by LICENSOR, to inspect the SERVICES provided by LICENSEE under
the TRADE SYMBOLS and the facilities where or by means of which the
SERVICES are provided. At all times, LICENSEE shall comply with the
reasonable quality control procedures furnished or approved, from time to
time, by LICENSOR.
4. Title to TRADE SYMBOLS
a) LICENSEE recognizes and acknowledges Brink's, Incorporated's exclusive
title to the TRADE SYMBOLS and LICENSOR'S right to license the TRADE
SYMBOLS to LICENSEE hereunder and LICENSEE shall not, at any time, do or
cause to be done any act or things which will in any way impair the rights
of Brink's, Incorporated or LICENSOR in and to the TRADE SYMBOLS. It is
understood and LICENSEE acknowledges that LICENSEE shall not acquire and
shall not claim title to the TRADE SYMBOLS adverse to Brink's, Incorporated
or LICENSOR by virtue of this license granted to LICENSEE or through
LICENSEE'S use of the TRADE SYMBOLS, it being
3
the intention of the parties that all of the use of TRADE SYMBOLS by
LICENSEE, including any and all goodwill arising from LICENSEE'S use
thereof, shall at all times inure to the benefit of Brink's, Incorporated
and LICENSOR. LICENSEE further undertakes that in the event any
infringement of the rights of Brink's, Incorporated and LICENSOR to any of
the TRADE SYMBOLS in the TERRITORY comes to the notice of LICENSEE during
the term of this Agreement, LICENSEE shall promptly notify LICENSOR, in
writing, and shall join with LICENSOR, if requested by LICENSOR, in taking
such steps, if any, as LICENSOR may deem advisable against the
infringement, or otherwise, for the protection of LICENSOR'S and Brink's,
Incorporated's rights. LICENSEE shall take no such action without the
express written consent of LICENSOR.
b) LICENSEE shall, at LICENSOR'S request, execute, acknowledge and deliver
to LICENSOR any documents and/or instruments that LICENSOR may, from time
to time, deem necessary or desirable to evidence, protect, enforce or
defend Brink's, Incorporated's rights and LICENSOR'S rights in and to the
TRADE SYMBOLS. LICENSOR and LICENSEE shall cooperate in good faith in all
actions to protect the TRADE SYMBOLS.
c) Upon termination or cancellation of this Agreement, by expiration or
otherwise, LICENSEE shall immediately discontinue and shall thereafter
refrain from the use of the TRADE SYMBOLS, or any of them, in any way or
for any purpose whatsoever, and will not use at any time, any trademarks,
servicemarks, trade names, slogans, labels, copyrights, emblems, insignia,
packages and other trades identifying symbols bearing resemblance to the
TRADE SYMBOLS or any of them.
d) Upon termination of this Agreement, LICENSEE shall ship to LICENSOR,
upon request of LICENSOR, any and all printed matter, displaying any TRADE
SYMBOL.
5. Royalties
a) Commencing January l, 2000 (or such later date as may be mutually agreed
upon by the parties), LICENSEE shall pay to LICENSOR, in consideration of
the rights granted to LICENSEE by LICENSOR hereunder, a royalty equal to
three percent (3%) of LICENSEE'S gross revenue per year from all sources,
payable during the continuance of this Agreement on a quarterly basis.
4
b) LICENSEE shall maintain itemized, complete and accurate books of account
with respect to its performance under this Agreement.
c) All payments due to LICENSOR hereunder shall be made to LICENSOR in
United States Dollars, converted from local currency at the average
official rate of exchange during the quarter immediately prior to such
payment, at LICENSOR'S Treasurer's office, or in such manner or at such
other place as may be designated by LICENSOR in writing.
d) Any taxes, duties or imposts, other than income or profit taxes assessed
or imposed upon the sums due hereunder to LICENSOR or upon or with respect
to this Agreement, shall be borne and discharged by LICENSEE and no part
thereof shall be deducted from any amount payable to LICENSOR under any
clause of this Agreement, said amounts to be net to LICENSOR, free of any
and all deductions, except as provided herein.
6. Promotional Activities
LICENSEE shall conscientiously work and fully develop the TERRITORY, use
its best efforts to fully adequately promote the sale of the SERVICES under
the TRADE SYMBOLS in the TERRITORY, and maintain the high standards of
LICENSOR as to advertising and all other promotion and promotional material.
LICENSOR retains the right to review and approve all advertising and other
promotional material. All advertising and promotional material will be
prepared in accordance with applicable law.
7. Disclaimer of Warranty
While LICENSOR believes that none of the TRADE SYMBOLS licensed hereunder
will infringe on any rights, trademark or otherwise, owned by any other person,
firm or corporation, it does not warrant that any such TRADE SYMBOLS do not or
will not infringe on any rights, trademark or otherwise in any part of the
world.
8. Term
Unless sooner terminated as provided for in this Agreement, this Agreement
shall remain in effect only during the term of the Shareholders' Agreement,
dated January 10, 1997, by and between Brink's Security International, Inc.
("BSI") and Valores Tamanaco, C.A. (the "Shareholders' Agreement"). This
Agreement shall immediately terminate upon: (i) the termination of the
Shareholders' Agreement for any reason
5
whatsoever, (ii) BSI (or another Brink's affiliate) ceasing to be a shareholder
of the LICENSEE; (iii) the termination of the Management Agreement between BSI
(or another Brink's affiliate) and LICENSEE, dated January __. 1997; or (iv) the
existence of any other ground for termination as set forth in this Agreement.
9. Termination
a) Either party to this Agreement shall have, in addition to any other
rights and remedies it may have hereunder or at law or in equity, the right
to terminate the same on thirty (30) days' written notice to the other, if
the other party shall breach or default in the performance of any material
provision hereof; provided, however, that if the party receiving such
notice of termination shall cure the breach or default within such thirty
(30) day period, the Agreement shall continue in full force and effect.
b) LICENSOR shall have the right, notwithstanding any other provisions of
this Agreement, and in addition to any other rights and remedies it may
have, to terminate this Agreement forthwith and at any time if LICENSEE
becomes insolvent or if LICENSEE files a petition in bankruptcy or
insolvency; or if LICENSEE is adjudicated bankrupt or insolvent; or if
LICENSEE files any petition or answer seeking reorganization, readjustment,
or arrangement of LICENSEE'S business under any law relating to bankruptcy
or insolvency; or if a receiver, trustee or liquidation is appointed for
any of the property of LICENSEE and within sixty (60) days thereof LICENSEE
fails to secure a dismissal thereof; or if LICENSEE makes any assignment
for the benefit of creditors.
c) LICENSOR shall have, notwithstanding any other provisions of this
Agreement, and in addition to any other rights and remedies it may have,
the right to terminate this Agreement, at any time, one thirty (30) days'
written notice to LICENSEE if any competitor of LICENSOR is, or becomes, an
affiliate of LICENSEE.
d) In any event, termination shall not prejudice any cause of action or
claim of either party accrued or to accrue by reason of any breach by the
other party.
10. Indemnification
LICENSEE agrees to indemnify LICENSOR and Brink's, Incorporated and hold
LICENSOR and Brink's, Incorporated harmless from any and all claims, suits,
losses,
6
costs and/or expenses arising out of or in connection with LICENSEE'S
performance under this Agreement.
11. Exoneration from Responsibility
Neither LICENSOR nor its employees shall have any responsibility for the
operation or performance of the facilities contemplated under this Agreement,
nor for any decisions which may be made in connection therewith, whether upon
the recommendation of LICENSOR or otherwise.
12. Governing Law; Jurisdiction
a) The laws of the State of Connecticut (without giving effect to
principles of conflicts of law), to the exclusion of the laws of any other
state, shall be applicable to this Agreement, its construction,
interpretation, effect, performance or non-performance, or the consequences
thereof, as well as to all transactions contemplated by this Agreement, and
their construction, interpretation, effect, performance or non-performance
and the consequences thereof.
b) Any dispute arising out of or in connection with the present Agreement
shall be finally settled by Arbitration in accordance with the Rules of
Conciliation and Arbitration of the International Chamber of Commerce by
one arbitrator in accordance to said Rules. Arbitration proceedings will be
conducted in Paris, France. The language of the proceedings, including all
documentation, shall be English. The above notwithstanding, LICENSOR shall,
at its discretion, have the right to seek injunctive relief in any court of
competent jurisdiction in the event of any breach of this Agreement.
c) The arbitrator shall not be entitled to award punitive damages. The
arbitration award, when filed by the parties hereto, shall be final and
binding upon the parties. If necessary, judgment may be entered upon the
final decision of the arbitrator in any court having competent
jurisdiction. The costs of the arbitration shall be borne by the losing
party unless otherwise determined by the arbitrator, provided, however,
that each side shall bear its own cost of counsel.
13. Independent Contractor
Nothing contained in this Agreement shall constitute LICENSEE the agent or
legal representative of LICENSOR for any purpose whatsoever. LICENSEE is not
7
granted any right or authority to assume or create any obligation or
responsibility, express or implied, on behalf of, or in the name of LICENSOR, or
to bind LICENSOR in any manner, or with respect to any thing whatsoever.
14. Assignment - Sale - Merger
This Agreement shall not be assignable in whole or in part by either party
hereto, except that LICENSOR shall have the unconditional right to assign this
Agreement to another member of its corporate group. This Agreement shall be
binding upon and inure to the benefit of the parties hereto, and their
successors and assigns (where permitted by the terms of this Agreement).
If any of the following events occur during the continuance of this
Agreement, this Agreement shall automatically by these terms be terminated as of
the effective date of the event:
a) the merger or consolidation of LICENSEE, unless approved by LICENSOR;
b) the transfer or sale of all or substantially all of the assets of
LICENSEE to a third party(ies); or
c) the transfer or sale of all or a majority of the stock of LICENSEE to a
third party(ies).
15. Notices
All notices, requests, demands and other communications which are required
or may be given under this Agreement shall be in writing, in English and shall
be deemed to have been given if delivered personally or sent by telefax,
confirmed by registered air mail effective on the date of the telefax
confirmation if the hard copy confirmation is mailed on the same day or within
two business days thereafter, to the following addresses:
If to LICENSOR to:
Senior Vice President, Finance
Brink's Network, Incorporated
One Thorndal Circle
▇.▇. ▇▇▇ ▇▇▇▇
▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇.▇.▇.
Telefax No: (▇▇▇) ▇▇▇-▇▇▇▇
(With a copy to the General Counsel of Brink's, Incorporated at the same
address.)
If to LICENSEE to:
-------------------------
Custravalca Brink's, C.A.
-------------------------
-------------------------
-------------------------
Venezuela
Telefax No.:
-------------
or to such other address and/or individual as may be furnished, from time to
time, in writing, by the parties hereto.
16. Miscellaneous
a) This Agreement contains the entire agreement of the parties hereto and
no provision of this Agreement may be changed or modified except in writing
signed by the parties hereto.
b) The failure of either party to enforce any right hereunder shall not be
deemed a waiver of any other right hereunder or any other breach or failure
by said party, whether of a similar nature or otherwise.
c) If any provision of this Agreement shall be declared void by any court,
or administrative body of competent jurisdiction, the validity of any other
provision which may nonetheless be given effect shall not be affected
thereby.
d) The governing language for this Agreement shall be English. In the event
a translation should be legally required, the translation shall be provided
by the Secretary of the LICENSEE, which translation shall be approved by
LICENSOR and LICENSEE. Notwithstanding the existence of a translation, in
the event of any discrepancy between the English version and the translated
version, the English version shall prevail and English shall remain the
governing language.
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e) The parties hereto warrant that they are fully authorized and empowered
to enter into this Agreement on behalf of their respective companies and
that such action does not contravene any existing statute, decree, contract
or other provision of whatever nature.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
BRINK'S NETWORK, INCORPORATED
(LICENSOR)
By
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Title
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WITNESS:
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CUSTRAVALCA BRINK'S, C.A.
(LICENSEE)
By
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Title
------------------------
WITNESS:
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