Exhibit 2.3
SETTLEMENT AND LIQUIDATION AGREEMENT
THIS SETTLEMENT AND LIQUIDATION AGREEMENT (THE "AGREEMENT") IS ENTERED INTO BY
OPEN PLAN SYSTEMS INC. REPRESENTED BY LIC. XXXXXX XXXXXXXXX XXXXXX (REFERRED TO
HEREIN AS "OPS") AND SERVICIOS DE INSTALACION DE MOBILIARIO Y ALFOMBRA, S.A. DE
C.V. REPRESENTED BY XX. XXXXX XXXX MIRANDA (REFERRED TO HEREIN AS "SIMA"), AND
XXXXX XXXX XXXXXXX ON ITS OWN BEHALF UNDER THE FOLLOWING DECLARATIONS AND
CLAUSES:
DECLARATIONS
I. OPS declares through its legal representative that:
a) It is a North American company established and existing under the
laws of the United States of America and its representatives,
Messrs. Xxxxxx Xxxxxxxxx and Xxxxxx Xxxxx Xxx, have the necessary
authority to represent OPS under the terms of this Agreement, in
accordance with Deed No. 46,955 dated February 14, 2002 given
under faith of Lic. Xxxxxx del Xxxxx Xxxxxxxxxx, Public Notary
No. 61 del D.F.
b) On January 14, 2000, OPS signed with SIMA an agreement of
co-investment (the "Joint Venture Agreement") in which the
parties agreed to create one Sociedad de Responsabilidad Limitada
de Capital Variable, of which 80% of the capital would be
provided by OPS and 20% of the capital would be provided by SIMA.
c) Under public deed 57,462 dated January 17, 2000, granted before
Lic. Xxxxxx Xxxxxxx Xxxxxx Notary 19 of Mexico City, Open Plan
Systems, S. de X.X. de C.V. ("Systems Sub"), was incorporated.
OPS subscribed and funded 80% of the capital of Systems Sub
through payments and loans and SIMA subscribed and funded the
remaining 20% of the capital of Systems Sub by providing various
items of equipment to the Systems Sub.
d) Under public deed 57,463 dated January 17, 2000, granted before
Lic. Xxxxxx Xxxxxxx Xxxxxx Notary 19 of Mexico City, Open Plan
Servicios, S. de X.X. de C.V. ("Service Sub"), was incorporated.
OPS subscribed and funded 80% of the capital of Service Sub
through payments and loans and SIMA subscribed and funded the
remaining 20% of the capital of Service Sub by providing various
items of equipment to the Service Sub.
e) It is the intention of OPS to execute this Agreement under the
terms and conditions, described below.
II. SIMA declares through its representative that:
a) It is a partnership legally formed under the Ley General de Sociedades
Mercantiles, and its representative, Xxxxx Xxxx Xxxxxxx, has the
necessary authority to obligate it which has not been revoked nor
restricted in any form, which is described in the public deed No.
57,461 dated January 17, 2000, presented before Lic. Xxxxxx Xxxxxxx
Xxxxxx, Notary No. 19 of Mexico City, which is exhibited before said
Notary who ratifies this agreement.
b) On January 14, 2000, OPS signed an agreement of co-investment (the
"Joint Venture Agreement") in which the parties agreed to create two
Sociedad de Responsabilidad Limitada de Capital Variable, of which 80%
of the capital would be provided by OPS and 20% of the capital would
be provided by SIMA.
c) Under public deed 57,462 dated January 17, 2000, granted before Lic.
Xxxxxx Xxxxxxx Xxxxxx Notary 19 of Mexico City, Open Plan Systems, S.
de X.X. de C.V. ("Systems Sub"), was incorporated. OPS subscribed and
funded 80% of the capital of Systems Sub through payments and loans
and SIMA subscribed and funded the remaining 20% of the capital of
Systems Sub by providing various items of equipment to the Systems
Sub.
d) Under public deed 57,463 dated January 17, 2000, granted before Lic.
Xxxxxx Xxxxxxx Xxxxxx Notary 19 of Mexico City, Open Plan Servicios,
S. de X.X. de C.V. ("Service Sub"), was incorporated. OPS subscribed
and funded 80% of the capital of Service Sub through payments and
loans and SIMA subscribed and funded the remaining 20% of the capital
of Service Sub by providing various items of equipment to the Service
Sub.
e) Under petition dated November 27, 2001, a mercantile ordinary judicial
proceeding before Forty Seventh Judge of the Civil Court was
initiated, with the file number 848/2001 Secretary "B", in which the
following individuals XXXXXX XXXXXXXXX XXXXXX, XXXXXX XXXXX XXX,
XXXXXXXX XXXXXXX PINUELA, XXXXXXXX XXXXXXX XXXXXX, XXXXXX XXXXXXX
MAINERO Y XXXXXX XXXXXX XXXXXX XXXXXXX were duly summoned to trial.
f) It is the intention of SIMA to execute this Agreement under the terms
and conditions, described below.
III. Messrs. XXXXXX XXXXXXXXX XXXXXX, XXXXXX XXXXX XXX, XXXXXXXX XXXXXXX
XXXXXXX, XXXXXXXX SHCNEZ XXXXXX, XXXXXX XXXXXXX XXXXXXX AND XXXXXX XXXXXX XXXXXX
XXXXXXX declare:
a) That they are individuals of Mexican citizenship and appear to execute this
agreement pursuant to being summoned to the proceeding referred in
Declaration II(e) above.
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IV. Based on the above declarations, the parties agree to execute this Agreement
according with the following:
CLAUSES
FIRST. The parties making mutual concessions with the purpose of carrying out
the acts set forth in this Agreement and in order to terminate this proceeding
execute this agreement, as represented by their authorized individual
representatives, and agree to the following:
The parties wish to dissolve and liquidate Open Plan systems S. de X.X. de C.V.
and Open Plan Services, S. de X.X: de C.V. (the "Companies"), as follows:
a) The parties jointly agree to dissolve and liquidate the Companies. The
parties have simultaneously executed the minutes of the extraordinary
shareholders meetings of the Companies in which the dissolution and
Liquidation is agreed. The parties agree not to initiate any new
business and to cease all other business operations of the Companies
effective as of the date of this Agreement. In accordance with Mexican
law, the responsibilities of the General Directors and Board of
Managers for the Companies will cease at the time this Agreement is
executed by the parties.
b) The parties jointly agree to designate C.P. Xxxxx Xxxxxxxxxxx as
liquidator of the Companies (the "Liquidator").
c) The Liquidator will liquidate the Companies pursuant to the agreement
and engagement letter signed by the parties and Liquidator dated
February 13, 2002 (the "Engagement Letter"). The parties agree that
OPS shall pay 80% of the liquidation fee and SIMA will pay 20% of the
liquidation fee, as described in the Engagement Letter. The Liquidator
shall complete the liquidation according to the liquidation schedule
included in the Engagement Letter.
d) The Liquidator will provide a written notice to the parties when the
Companies are liquidated, at which time the provisions of Clause
Fourth will become effective.
SECOND. In his performance as Liquidator, C.P. Xxxxx Xxxxxxxxxxx will perform
the Liquidation in accordance with the following:
a) The Liquidator will perform according to the relating articles of the
Ley General de Sociedades Mercantiles. The parties agree that due to
the fact that the parties consider C.P. Xxxxx Xxxxxxxxxxx a person
completely trustworthy, the parties approve as of this moment the
final balance of said liquidations to be prepared by C.P. Xxxxx
Xxxxxxxxxxx.
b) The Liquidator will analyze the unaudited financial statements
corresponding to the third quarter and the fourth quarter of 2001 in
accordance with the terms of the Engagement Letter. If during the
liquidation process, OPS or SIMA require the Liquidator to perform
activities beyond the scope of his responsibilites as described in
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the Engagement Letter, but within the legal process, the Liquidator
may conduct such activities with the prior consent of OPS and SIMA. If
either party withholds such consent, the other party may elect to have
the Liquidtor perform such additional activities and will assume the
responsibility for the payment of the additional fees and/or expenses
corresponding to such additional activities.
c) As further stated in Section 3(c) of the Engagement Letter, the
Liquidator will perform a review of the third and fourth quarter of
year 2001, with the scope the Liquidator considers necessary under the
circumstances and report unclear or irregular transactions (if any).
If any unclear transactions are found by the Liquidator during such
review, Xxxxx Xxxx Xxxxxxx shall promptly clarify such unclear
transactions for the Liquidator. In addition, if there are any
shortfalls in the books and records of the Companies based on such
unclear transactions, Xxxxx Xxxx Miranda shall pay such respective
amounts in full in cash to the Companies, at which time OPS waives any
rights it may have to pursue Xxxxx Xxxx Xxxxxxx or XXXX for such
shortfalls.
The Liquidator will advise the parties in writing when his review is
completed and all shortfalls discovered during his review (if any)
have been paid in full in cash, at which time Xxxxx Xxxx'x
responsibilities under this clause will cease.
d) In order to end the social operations of the Companies, the Liquidator
will receive the help of Xxxxx Xxxx Xxxxxxx and OPS, obtaining the
best benefit for the liquidated companies.
e) Once the final balance from the liquidation is finalized by the
Liquidator, the remaining assets (if any) shall be distributed by the
Liquidator to the parties, with 80% of the remaining assets to be paid
to OPS and 20% of the remaining assets to be paid to SIMA.
THIRD. The parties agree that the designation of C.P. Xxxxx Xxxxxxxxxxx as
Liquidator is unanimous and no other additional liquidator shall be named nor
any other individual shall substitute him, unless it is mutually agreed by the
parties. The parties further agree that the terms and conditions set forth above
for the Liquidation shall be adopted by the Liquidator and are obligatory and
binding for the parties. In addition to approving as of this moment the final
balance of said liquidations to be prepared by C.P. Xxxxx Xxxxxxxxxxx, the
parties agree that all decisions and notices by the Liquidator under this
Agreement shall be binding on the parties.
FOURTH: The parties agree that, from the date of this Agreement until the date
the parties receive the Liquidator notice described in Clause First (d), the
parties shall stay or suspend all existing judicial procedures against each
other, and will not initiate any judicial procedures against each other pursuant
to the Joint Venture Agreement, the meeting of the Partners of the Companies
held September 19, 2001 or any other procedures except such judicial procedures
that may arise due to a breach of this Agreement.
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As of the date of the Liquidator notice described in Clause First (d), the Joint
Venture Agreement and the stayed or suspended existing judicial procedures and
actions will be terminated and the parties terminate and waive any right to file
any other procedures and actions except such judicial procedures and actions
that may arise due to a breach of this Agreement.
Notwithstanding the previous sentences in this Clause Fourth, a party may revive
and enforce any stayed or suspended judicial proceedings and it may initiate
judicial procedures against the other pursuant to the Joint Venture Agreement,
the meeting of the Partners of the Companies held September 19, 2001 or any
other judicial procedures at any time after (1) That the Liquidator notifies the
parties in writing that the other party has violated Clause Fifth of this
agreement; or (2) That a court of competent jurisdiction issues a final
nonappealable order determining that the other party has breached any other
Clause of this Agreement.
The parties agree that no later than 30 days after their receipt of the
Liquidator notice described in Clause First (d), they will file all necessary
documents and take all necessary actions which are required to terminate any
stayed or suspended judicial procedures against each other. If a party fails to
comply with the preceding sentence, any other party may rescind this agreement
or execute the fulfillment of this agreement through any judicial means
necessary. The parties will pay for their own fees and expenses necessary to
terminate the above referred procedures and the Joint Venture Agreement. In this
case the parties waive to any right to damages and injuries, expenses and costs
generated in their favor against of the other for the termination of the
judicial or extrajudicial proceedings.
FIFTH: Xxxxx Xxxx Xxxxxxx agrees to provide the Liquidator with all books,
records, papers and other documents requested by the Liquidator, and Xxxxx Xxxx,
OPS and SIMA will make themselves available to the Liquidator for any request by
the Liquidator and will otherwise cooperate fully with the Liquidator. The
Liquidator shall notify the parties in writing if the Liquidator determines that
either party has violated this Clause Fifth.
SIXTH: The parties agree that any labor contingency will be adopted by SIMA
or a third company designated by Xxxxx Xxxx Xxxxxxx, and any payments required
under Mexican law will be paid by SIMA or Xxxxx Xxxx. XXXX and Xxxxx Xxxx will
hold OPS harmless from any and all claims, liabilities, damages, losses or
expenses arising out of or in connection with any labor contingencies.
SEVENTH: For purposes of this Agreement, the parties designate as their
domiciles the following:
SIMA Y XXXXX XXXX XXXXXXX OPS
Xxxxxx xx Xxxxxxxx Xx. 00-000 Xxxxxxx y Xxxxxxxx, X.X.
Col. Xxxxxxx de las Xxxxx Xxxxxx Xxxxxx Xx. 000
00000-Xxxxxx, D.F. Col. Lomas Barrilaco
Att'n: Lic. Xxxxxxx Xxxx 11010-Mexico, D.F.
Att'n: Lic. Xxxxxx Xxxxxxxxx Xxxxxx
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EIGHTH: Both parties declare that in virtue that this agreement does not have
clauses in opposition to the moral or to the good manners, this agreement is
approved with authority of matter decided and final judgement for all legal
effects.
NINTH: For the interpretation and fulfillment of this Agreement, the parties
submit themselves to the competence and jurisdiction of the courts in Mexico
City, waiving any other jurisdiction.
TENTH: This Agreement may be executed in one or more counterparts, all of
which taken together shall constitute one and the same instrument.
The parties agree with the terms and conditions set forth above, and sign this
Agreement the 18th day of February, 2002.
OPEN PLAN SYSTEMS, INC. SERVICIOS DE INSTALACION
DE MOBILIARIO Y ALFOMBRA,
S.A. DE C.V.
/s/ Xxxxxx Xxxxxxxxx Xxxxxx /s/ Xxxxx Xxxx Xxxxxxx
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By: Xxxxxx Xxxxxxxxx Xxxxxx, Representative By: Xxxxx Xxxx Xxxxxxx, Representative
XXXXX XXXX MIRANDA
/s/ Xxxxx Xxxx Xxxxxxx
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By: Xxxxx Xxxx Miranda, individually
XXXXXX XXXXXXXXX XXXXXX XXXXXX XXXXX XXX
/s/ Xxxxxx Xxxxxxxxx Xxxxxx /s/ Xxxxxx Xxxxx Xxx
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By:Xxxxxx Xxxxxxxxx Xxxxxx, individually By: Xxxxxx Xxxxx Xxx, individually
XXXXXXXX XXXXXXX XXXXXXX XXXXXXXX SHCNEZ XXXXXX
/s/ Xxxxxxxx Xxxxxxx Xxxxxxx /s/ Xxxxxxxx Shcnez Xxxxxx
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By:Xxxxxxxx Xxxxxxx Pinuela, individually By: Xxxxxxxx Shcnez Xxxxxx, individually
XXXXXX XXXXXXX XXXXXXX XXXXXX XXXXXX XXXXXX XXXXXXX
/s/ Xxxxxx Xxxxxxx Mainero /s/ Xxxxxx Xxxxxx Xxxxxx Xxxxxxx
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By: Xxxxxx Xxxxxxx Mainero, individually By: Xxxxxx Xxxxxx Xxxxxx Xxxxxxx, individually
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