Table of Contents
Exhibit
4(b)(1)
INVESTMENT
AND JOINT VENTURE AGREEMENT
The
companies named and identified below, collectively referred to as
Shareholders , and individually and indiscriminately
referred to as Shareholder ,
On
the one part,
Sendas
S.A. (hereinafter,
“ SENDAS” ), having its principal place of
business in the City of São João de Meriti, in the State
of Rio de Janeiro, at Rodovia Presidente Dutra No. 4674, Jardim
José Bonifácio, enrolled with the National Register of
Legal Entities of the Ministry of Finance – CNPJ/MF under No.
31.911.548/0001 -17,
On
the other part,
Companhia
Brasileira de Distribuição (hereinafter,
“CBD”) , having its principal place of business
in the City of São Paulo, State of São Paulo, at Avenida
Brigadeiro Luiz Antonio No. 3142, enrolled with the National
Register of Legal Entities of the Ministry of Finance
–CNPJ/MF under No. 47.508.411/0001 -56,
And,
as Intervening Parties , collectively referred as
such,
SENDAS
EMPREENDIMENTOS E PARTICIPAÇÕES LTDA
.,
a private limited company, having its principal place of business
in the City of São João de Meriti, in the State of Rio de
Janeiro, at Rodovia Presidente Dutra No. 4674, Jardim José
Bonifácio, enrolled with the National Register of Legal
Entities of the Ministry of Finance – CNPJ/MF under No.
30.630.362/0001 -27 (hereinafter, “Sendas
Empreendimentos”) ;
ARTHUR
ANTONIO SENDAS, Brazilian,
married, businessman, resident and domiciled in the City of Rio de
Janeiro, State of Rio de Janeiro, holder of Identity Card No.
1.183.197, IFP/RJ, issued on July 17, 1967, enrolled with the
Individual Taxpayers Register of the Ministry of Finance –
CPF/MF under No. 016.084.447 -91, (hereinafter, “Sendas
Controller”) ;
PÃO
DE AÇÚCAR S.A. INDÚSTRIA E COMÉRCIO
,
having its principal place of business in the City of São
Paulo, State of São Paulo, at Avenida Brigadeiro Luiz Antonio
No. 3126, enrolled with the National Register of Legal Entities of
the Ministry of Finance –CNPJ/MF under No. 61.550.182/0001
-69, herein duly represented by its legal representative
undersigned (hereinafter, “ PAIC ”);
PEN¥NSULA
PARTICIPAÇÕES LTDA. ,
having its principal place of business in the City of São
Paulo, State of São Paulo, at Avenida Brigadeiro Luiz Antonio
No. 3126, 2 nd floor, enrolled with the National
Register of Legal Entities of the Ministry of Finance –
CNPJ/MF under No. 58.292.210/0001 -80, herein duly represented by
its legal representative undersigned (hereinafter, “
Península ”);
NOVA
PENÍNSULA PARTICIPAÇÕES S.A. , a
company organized and existing under the laws of the Federative
Republic of Brazil, having its principal place of business in the
City of São Paulo, State of São Paulo, at Avenida
Brigadeiro Luiz Antonio No. 3126, 2 nd floor, enrolled
with the National Register of Legal Entities of the Ministry of
Finance – CNPJ/MF under No. 66.056.524/0001 -02, herein duly
represented by its legal representative undersigned (hereinafter,
“ Nova Península ”);
ABILIO
DOS SANTOS DINIZ ,
Brazilian, judicially separated, businessman, holder of Identity
Card SSP/SP No. 1.965.961, enrolled with the Individual Taxpayers
Register of the Ministry of Finance – CPF/MF under No.
001.454.918 -20, with office in the City of São Paulo, State
of São Paulo, at Avenida Brigadeiro Luiz Antonio No. 3142,
(hereinafter, “CBD Controller”) ; and
SENDAS
DISTRIBUIDORA S.A. ,
the new corporate name of Companhia Distribuidora Alves Furtado, a
company having its principal place of business in the Municipality
of São João de Meriti, in the State of Rio de Janeiro, at
Rodovia Presidente Dutra No. 4674, part, enrolled with the National
Register of Legal Entities of the Ministry of Finance –
CNPJ/MF under No. 06.057.223/0001 -71, herein duly represented
pursuant to its By-laws, (hereinafter, “ the Company
”);
All
of the above companies herein represented through their respective
By-laws or articles of association, and have decided to execute the
present Investment and Association Agreement (hereinafter, the
“Agreement”), which shall be governed by the following
clauses and conditions:
Clause
One – Recitals
1.1.
– On December 3, 2003, SENDAS and CBD executed a Letter of
Intent, with the purpose of agreeing on the basic conditions
pursuant to which they shall promote the union of the operating
activities of the two chains in the State of Rio de
Janeiro.
1.2.
– SENDAS – which is controlled by Sendas Controller
through Sendas Empreendimentos – has been operating in the
Brazilian retail market for more than 43 years and currently
operates, on an exclusive basis, in the State of Rio de Janeiro,
through a multi-format chain comprised by 68 stores, encompassing 6
hypermarkets and 62 supermarkets, with a total sales area of
229,000 m 2 , including gas stations, commercial
galleries and drugstores, having an annual gross invoicing, in
2003, in excess of R$ 2 billion.
1.3.
– CBD – which is controlled by CBD Controller through
PAIC, PENÍNSULA and NOVA PENÍNSULA – currently
explores 496 stores in 12 Brazilian states, of which 38 are located
in the State of Rio de Janeiro, being 9 hypermarkets and 29
supermarkets, with a total sales area of 94.905 m 2 ,
including gas stations, commercial galleries and drugstores, having
an annual gross invoicing, in 2003, of R$ 1.5 billion. Of the
abovementioned 38 stores, some are explored by CBD through the
company Novasoc Comercial Ltda.
1.4.
– The Shareholders have decided to take advantage of the
operational synergy between SENDAS and CBD in the State of Rio de
Janeiro, with the purpose of obtaining scale economy, through the
organization of a new regional distribution company.
1.5.
– The contemplated joint venture shall be effected as
described in clause three of this Agreement, through the
contribution to Sendas Distribuidora S.A., of assets, rights and
obligations relating to SENDAS and CBD retail activities in the
State of Rio de Janeiro, and which shall comprise a total of 106
stores, a sales area of 324,000 m 2 , with an estimated
annual invoicing in excess of R$ 3.5 billion.
1.6.
– On July 15, 2002, SENDAS issued debentures convertible into
shares, pursuant to the Deed of Issuance transcribed in book ST659,
on pages 125/138, of the 23 rd Notary Office of the City
of Rio de Janeiro ( Attachment 1.6 ); and almost all
of such debentures were subscribed by BNDES Participações
S.A. (BNDESPAR).
1.7.
– On August 20, 2002, BNDESPAR, Intervening Party Sendas
Empreendimentos, in its capacity of direct controlling shareholder
of SENDAS, and Mr. Arthur Antonio Sendas executed SENDAS’
shareholders agreement ( Attachment 1.7 ) , through
which Sendas Empreendimentos undertook, among other obligations,
(i) to maintain, during the term of the shareholders agreement, the
ownership of at least 51% of the voting capital of SENDAS; and (ii)
not to transfer, assign, burden, encumber or in any other way
dispose of, directly or indirectly, on a free of charge or cost
basis, the totality or part of the shares or subscription rights
corresponding to the shares mentioned in item (i) above.
1.8.
– BNDESPAR Executive Board, in a meeting held on September
22, 2003, issued decision number Dir. 055/2003, stipulating that,
within the approximate term of ninety (90) days, SENDAS should
submit a financial restructuring plan - the actions and completion
terms thereof having been established therein -, which plan should
enable the reduction and the extension of the restated liabilities
of SENDAS, and should be previously approved by
BNDESPAR.
1.9.
– With a view to the financial restructuring mentioned in
item 1.8. , SENDAS initiated negotiations with creditor banks,
under the coordination of UNIBANCO; such process includes the
disposal of the shareholding SENDAS owns in Casa de Show S.A.,
which shall not be included among the assets that shall integrate
the joint venture. The costs incurred in the mentioned
restructuring, including any compensation due by reason of
consulting and assistance services, shall be borne by
SENDAS.
Clause
Two – Corporate Structure
2.1.
– The Company was organized on December 18, 2003, under the
corporate name of Companhia de Distribuição Alves
Furtado, which has been altered to Sendas Distribuidora S.A., in an
Extraordinary General Meeting held on January 28, 2004.
2.2.
– The Company is governed by the provisions of Law 6.404, of
December 15, 1976, as amended.
2.3.
– Upon the asset contribution to be made by the Shareholders
to the Company’s capital pursuant to clause three, the
Company’s By-laws shall be modified to contemplate the
provisions of the present Agreement, observing the terms of the
draft that constitutes Attachment 2.3. hereof, the
parties having agreed as follows:
(a)
The administration of the Company shall be an incumbency of the
Board of Directors, which shall be responsible for establishing the
strategic guidelines, and of the Executive Board, which shall be
responsible for the management of the Company’s daily course
of business.
(b)
CBD shall be fully responsible for the management and the
administration of the Company, within the scope of the Executive
Board.
2.4.
– Board of Directors – The Company’s Board
of Directors shall be comprised of twelve (12) effective members
and four (4) alternates, all of them shareholders, who shall be
elected and may be dismissed by the Shareholders Meeting, where:
(i) four (4) effective members and two (2) substitutes shall be
elected by appointment of SENDAS; (ii) four (4) effective members
and two (2) substitutes shall be elected by appointment of CBD; and
(iii) four (4) independent members, with acknowledged experience
and trustworthy reputation, without any connection with SENDAS or
CBD, shall be elected through common agreement among the
Shareholders.
2.4.1.
– The president of the Company’s Board of Directors
shall be Mr. Arthur Antonio Sendas.
2.4.1.
– By reason of the intuitu personae nature of the
appointment of Mr. Arthur Antonio Sendas to preside the
Company’s Board of Directors, in the event of his death,
incapacity or disqualification during the term of this Agreement,
the Shareholders shall, by mutual agreement and within thirty (30)
days counted from the date of the event, elect a
substitute.
2.5.
– Executive Board – The Company shall have an
Executive Board comprised of at least three (3) and no more than
five (5) members, who shall have a term office of two (2) years and
may be reelected. From among the executive officers one shall be
the Chief Executive Officer and the others shall have no special
designation.
2.5.1.
– For the purposes of the provided in item 2.5, SENDAS hereby
agrees to cause its representatives in the Company’s Board of
Directors to vote along with CBD representatives, in relation to
appointments of Officers made by CBD representatives.
2.5.2.
– The Shareholders agree that the operating and
administrative management of the Company shall be entirely
incumbent upon CBD. Hence, CBD shall have complete freedom to make
any and all decisions relating to the daily operations of the
stores of the Company, and the direct management of the businesses
shall be assigned to experienced professionals, with trustworthy
reputation and renowned technical capacity, who meet the
qualification criteria needed to exercise their respective
functions.
2.5.3.
– The Executive Board shall have complete freedom to make any
operating decisions, including, but not being limited to: (i)
management and administration of the stores, including alterations
in their respective formatting; (ii) appointment and dismissal of
other executives of the Company; (iii) hiring and dismissal of the
Company’s employees, in general.
2.5.4.
- The Company’s Executive Board shall be comprised of
professional executives originating from the chains of stores of
the Shareholders or hired within the marketplace.
2.5.5.
– The members of the Executive Board shall be assessed by the
Board of Directors every other year, according to the performance
indicators known as Key Performance Indicators
(“K.P.I.”), such as defined in the Shareholders
Agreement mentioned in item 2.8 below (“ Shareholders
Agreement ”), and based on the market best
practices.
2.6.
– Committees – The Company shall have an
Executive Committee, a Financial Committee, a Development and
Marketing Committee and an Auditing Committee, the function which
is to assist the interaction and cooperation between the Executive
Board and the Board of Directors. The Shareholders hereby agree to
create a Special Committee to settle discrepancies on the terms of
the Shareholders Agreement.
2.6.1.
– The Committees’ Coordinators shall be appointed as
follows: (i) the Coordinator of the Executive Committee and of the
Auditing Committee shall be appointed by CBD; and (ii) the
Coordinator of the Financial Committee and of the Development and
Marketing Committee shall be appointed by SENDAS.
2.6.2.
– The Committees shall have the duties ascribed to them in
the draft By-laws that constitute Attachment
2.3.
2.7.
– Election of the Initial Administrators – The
Shareholders hereby agree:
(a)
To elect as members of the Company’s Board of Directors: (i)
by appointment of CBD: (I) as Effective directors: Abílio dos
Santos Diniz, Ana Maria Falleiros Diniz, Augusto Marques da Cruz
Filho and Caio Racy Mattar; (II) as Alternate directors: Enéas
César Pestana Neto and Hugo Antonio Jordão Bethlem; (ii)
by appointment of SENDAS: (I) as Effective directors: Arthur
Antonio Sendas, who shall be the President of the Board of
Directors, Arthur Antonio Sendas Filho, Nelson Antonio Sendas and
Aprígio Lopes Xavier; (II) as Alternate directors: Manoel
Antônio Sendas Filho and Francisco Antônio Sendas; (iii)
as independent directors: Maria Silvia Bastos Marques, Gerald Dinu
Ress, M
