SECOND ADDENDUM TO CORPORATE SERVICES MASTER AGREEMENT
EXHIBIT 4.9
SECOND ADDENDUM TO CORPORATE SERVICES MASTER AGREEMENT
Made in the City of Buenos Aires, on this 24th day of February of 2014, by and among:
(i) CRESUD S.A.C.I.F. y A., domiciled at ▇▇▇▇▇▇ ▇▇. ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ Aires, represented hereat by the undersigned attorneys-in-fact (hereinafter “CRESUD”) for the first part;
(ii) Alto ▇▇▇▇▇▇▇ ▇.▇. (APSA), domiciled at ▇▇▇▇▇▇ ▇▇. ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ Aires, represented hereat by the undersigned attorneys-in-fact (hereinafter “APSA”), for the second part; and
(iii) IRSA Inversiones y Representaciones Sociedad Anónima, domiciled at ▇▇▇▇▇▇▇ ▇▇. ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ Aires, and setting up domicile for purposes of this agreement at ▇▇▇▇▇▇ ▇▇. ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ Aires, represented hereat by the undersigned attorneys-in-fact, for the third part (hereinafter “IRSA”, and collectively with CRESUD and APSA hereinafter referred to as the “Parties”, and each of them individually as a “Party”).
WHEREAS:
(i) On June 30, 2004, the Parties executed a Master Agreement for the Exchange of Corporate Services (hereinafter the “Master Agreement”), whereby the administrative and financial features and guidelines for implementing the supply of Corporate Services were established, for purposes of reducing fixed costs arising from the Parties’ activities and diminishing their impact on operating results, taking advantage of the individual efficiencies of each of them in the various operating management areas;
(ii) The Parties engaged Deloitte & Co. S.R.L. (hereinafter “Deloitte”) for it to review and assess semi-annually the criteria used in the Corporate Services settlement process and the Cost Distribution Bases and supporting documents used in the above mentioned process and prepare a semi-annual report;
(iii) Due to the experience gained as a result of the implementation of the Master Agreement based on an Implementation Manual prepared by Deloitte, certain operational changes to the Areas of Exchange of Corporate Services and Cost Distribution Bases have been implemented since January 2005;
(iv) Such operational changes were acknowledged by the Parties through the execution of six agreements for the implementation of amendments dated August 23, 2007, August 14, 2008, November 27, 2009, July 11, 2011, October 15, 2012 and November 12, 2013, respectively (the “Agreements”);
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(v) On March 12, 2010, the Parties executed an Addendum to the Master Agreement (hereinafter, the “Addendum”) whereby the Parties agreed to unify in CRESUD the services of the Areas of Exchange of Corporate Services, for which purpose they transferred the employement agreements of most employees from such areas and a procedure was established to allocate the hypothetical labor costs resulting from outgoing employees;
(vi) In view of the fact that the Parties are going through the structuring of a new organizational model for the division of business areas, it is deemed advisable that within the scope of the Master Agreement and the Agreements, the services related to the Technical, Infrastructure and Services, Purchases, Architecture and Design, and Development and Works, Real Estate Business Management, Real Estate Business HHRR, Safety and Real Estate (the “Transfer Areas”), all of which are related to the real estate business, should be directly provided by IRSA and/or APSA, to which end the employment agreements of the employees rendering such services were transferred;
(vii) The new organizational model is intended to provide for increased independence and specialization on a business basis, developing deeper identification of the employees with the company for which they provide services and hence creating more commitment on the part of the employees;
(viii) As the terms of the Addendum provided that all employees assigned by any of the Parties in the future would be subject to the methology set forth therein, the Parties deem it suitable to enter into this Second Addendum to the Corporate Services Master Agreement (the “Second Addendum”) so as to establish the mechanisms to be used in allocating the expenses related to the hypothetical labor costs that could arise from the termination of employees or other costs whose origin or accrual shall have occurred or shall occur before or after the assignment referred to above;
(ix) Notwithstanding the provisions of the Addendum and the Second Addendum, the Parties keep the areas that group together the know-how of the business of each of them unchanged;
(x) Each of the Parties has submitted the contents of the Second Addendum to their respective Audit Committees for review, which have raised no objections to it; and
(xi) In addition, the Board of Directors of each of the Parties has approved this Second Addendum at the meeting held on February 21, 2014.
NOW, THEREFORE, the Parties agree to enter into this Second Addendum, to be governed by the following clauses:
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ONE: The Exhibit attached to this Second Addendum includes a list of the personnel serving in the Transfer Areas to be transferred from CRESUD to IRSA and/or to APSA effective as of January 1, 2014. The allocation of their salaries and labor costs shall continue to be distributed as set forth in the Master Agreement and the Agreements. The Exhibit sets forth the length of service of corporate employees, their original employers, their employers as of the date of execution of this document, and the corporate sector where they serve.
TWO: The Parties agree to perform the following obligations as an immediate consequence of the execution of this Second Addendum:
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(a)
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In the event of termination of or if a claim is filed by any employee whose employment agreement was transferred, the Parties shall identify its origin or subject matter;
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(b)
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The Parties shall identify the origin or accrual of the termination or hypothetical right, so as to determine the financial liability of each Party;
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(c)
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The Parties promise to indemnify APSA and/or IRSA, as applicable, to such extent as appropriate, for the expenses and disbursements arising from claims made by the transferred employees listed in the Exhibit.
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THREE: The expenses mentioned in paragraph (c) above include:
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(a)
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Any salary and/or indemnification and/or social security item, claim or hypothetical concept, including: outstanding wages, if any, salary differences, statutory annual benefit, vacation pay, any kind of commissions, overtime, as well as any bonuses, rewards and/or reimbursements and any indemnification amounts that could arise from Section 212 of the Employment Contract Law, Section 1113 of the Civil Code, damages and/or pain and suffering or damages under Occupational Accidents Laws No. 24,028 and 24,557, as amended, -if applicable-, for which APSA, IRSA and/or CRESUD could be liable, as well as any other amount originated in the employment relationship that is being terminated, whatever its origin may be, as well as any other mechanism or institute related to the employee’s performance during their relationship with CRESUD, irrespective of the regulatory source that created them; and
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(b)
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professional fees and expenses incurred in the defense of the interests of the Party(ies), whether originated in claims filed by employees or third parties.
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FOUR: The Parties agree that all costs associated to the employees who join the Transfer Areas or who, in spite of working in other Areas, are assigned by any of the Parties in the future within the scope of implementation of the new organizational structure, shall be governed by the method contemplated herein.
FIVE: The Corporate Human Resources Department shall be responsible for determining the amounts or percentages to be borne by each Party, based on each employee’s periods of service and taking into account the origin of each termination or the cause of each claim. At the closing of each year the above mentioned Department shall submit a report to an assessment committee (the “Assessment Committee”) containing a detail of all cases of termination that involve the employees listed in the Exhibit. The Assessment Committee shall be composed of the Individual In-charges of each of the Parties previously appointed and shall validate the adequate allocation of expenses made by the Corporate Human Resources Department. Any decisions taken by the Assessment Committee shall be adopted by simple majority and shall not be subject to appeal.
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SIX: The Parties agree that for purposes of facilitating the implementation hereof among them, within five days before the closing of each calendar month APSA and/or IRSA, as applicable, shall make a pro-forma settlement of the costs to be paid by each of the Parties at the end of the month. Based on such settlement, APSA and/or IRSA shall invoice to APSA, IRSA and/or CRESUD a sum of money calculated on the basis of the costs paid in such month. APSA and IRSA promise to render a monthly account by delivering: (i) a detail of the differences between the pro-forma settlement and the final account resulting from the payments made; and (ii) a detail of the use of proceeds to each of the Parties, for purposes of computing the payments to be made pursuant to Section 5 of the Master Agreement.
SEVEN: The Parties agree that all the clauses and exhibits of the Master Agreement, the Addendum and the Agreements are in force, and that this Second Addendum does not amend any of their clauses.
EIGHT: The Parties agree that all capitalized terms not defined in this Second Addendum shall have the meanings assigned to them in the Master Agreement, the Addendum and the Agreements.
NINE: All the counterparts of this Second Addendum and its Exhibit, once signed by the Parties, shall be regarded as original counterparts to all effects.
TEN: If any of the clauses or provisions of this Second Addendum were invalid, unenforceable, ineffective or illegal, such invalidity, unenforceability, ineffectiveness or illegality shall not affect the validity of this Second Addendum, and its remaining provisions shall remain in force.
ELEVEN: This Second Addendum shall be governed by and interpreted in accordance with the laws of the Republic of Argentina.
TWELVE: Any disputes arising from or related to the execution, interpretation or enforcement of this Second Addendum shall be negotiated by the Parties in good faith. The negotiation stage having been exhausted, at the request of any of the Parties the dispute shall be settled by the Arbitration Court of the Buenos Aires Stock Exchange, or any such court as may replace it in the future, which shall act in accordance with the rules of arbitration of law, and whose decision shall be final and not subject to appeal.
THIRTEEN: The Parties have drafted this Second Addendum jointly; therefore, in case of ambiguity or any other circumstance that requires an interpretation of its terms, no presumption arising from the authorship of this Second Addendum shall favor or prejudice any of the Parties.
FOURTEEN: Except as otherwise clearly arising from the text of this Second Addendum, it shall be understood that: (i) any references to the singular form include the plural, and vice versa; (ii) any references to the masculine gender include the feminine gender, and vice versa; (iii) any references to a given legislation include the regulations or supplementary statutes issued under the referred legislation; and (iv) the word “including” or similar terms imply a mere explicatory or illustrative enumeration.
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In witness whereof, three (3) identical counterparts are signed to a single effect in the place and on the date first above written.
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CRESUD S.A.C.I.F.y A.
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Attorneys-at-law
IRSA Inversiones y Representaciones Sociedad Anónima
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Attorneys-at-law
Alto ▇▇▇▇▇▇▇ ▇.▇. (APSA)
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Attorneys-at-law
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