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EXHIBIT 10.41
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is entered into by and
between Banco Suquia S.A., domiciled at 25 xx Xxxx 160 (5000) Cordoba,
Province of Cordoba, Republic of Argentina (hereinafter, the "SELLER"), and PM
Holdings, Inc., domiciled at Xxx Xxxxxxxx Xxx, Xxxxxxxx, XX 00000, Xxxxxx
Xxxxxx of America (hereinafter the "PURCHASER") (SELLER and PURCHASER
hereinafter collectively, the "Parties", and individually, each as a "Party").
WHEREAS
SELLER and PURCHASER are shareholders of Emprendimiento Compartido
S.A., a company duly organized and validly existing under the laws of the
Republic of Argentina (hereinafter, "EMCO");
SELLER owns 53.3525% of the issued and outstanding shares of capital
stock and votes of EMCO (such shares owned by the SELLER collectively referred
to as the "Stock");
SELLER wishes to sell to PURCHASER and PURCHASER wishes to purchase
the Stock; and
The Parties wish to set forth herein the steps and procedures that
will be taken in order to effect the sale to PURCHASER of the Stock and the
other corporate matters described below.
NOW THEREFORE, in consideration of the mutual promises and covenants set forth
herein, the Parties hereby agree to execute this Agreement under the following
terms and conditions:
1. SALE OF STOCK.
Subject to the terms and conditions of this Agreement, on the Closing
Date (as defined in Section 3.1 below) SELLER will sell, and PURCHASER will
purchase all of the Stock, consisting of 13,925,000 (Thirteen Million Nine
Hundred Twenty-Five Thousand) common, nominative, non-endorsable Class "A"
shares of 1 (one) vote per share and a par value of $ 1 (one peso) each, and
with all the economic and political rights incorporated to them, all of which
have been subscribed and fully
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paid-in and that together represent 53.3525% of the total issued and
outstanding capital stock and votes of EMCO.
2. PURCHASE PRICE.
2.1 The purchase price for the Stock (the "Purchase Price") is
US$29,500,000 (United States Dollars Twenty-Nine Million Five Hundred
Thousand).
2.2 The Purchase Price shall be paid by PURCHASER to SELLER as follows:
(i) US$10,000,000 (United States Dollars Ten Million) will be paid on or
before the last Banking Day (as defined in Section 2.4 below) corresponding to
the period ending 180 (One Hundred Eighty) calendar days following the Closing
Date (as defined in Section 3.1 below); (ii) US$10,000,000 (United States
Dollars Ten Million) will be paid on or before the last Banking Day (as
defined in Section 2.4 below) corresponding to the period ending 360 (Three
Hundred Sixty) calendar days following the Closing Date; and (iii)
US$9,500,000 (United States Dollars Nine Million Five Hundred Thousand) will
be paid on or before the last Banking Day (as defined in Section 2.4 below)
corresponding to the period ending 540 (Five Hundred Forty) calendar days
following the Closing Date.
2.3 All payments to be made by PURCHASER pursuant to Section 2.2 hereunder
shall bear interest at the rate of 7.06% (seven point zero six percent) per
year as from the Closing Date and until those payments are made. Payment of
accrued and unpaid interest shall be made simultaneously with each of the
payments indicated in Section 2.2.
2.4 For all purposes hereof, "Banking Day" shall mean any day in which
banks and financial institutions are open for all kinds of financial
transactions in both New York, NY, United States of America and Buenos Aires,
Argentina.
2.5 All payments to be made by PURCHASER pursuant to Sections 2.2 and 2.3
hereinabove shall be by wire transfer to the following bank account of the
SELLER: UBS AG Bank, Stamford, Ct., United States of America; swift addresses:
XXXXXX00, ABA: 000000000; account number 101-WA-347299000 (Banco Suquia S.A.),
on the dates established in Section 2.2., and/or to any other bank account
that SELLER may designate and notify PURCHASER of in writing from time to time
at least five (5) business days prior to the affected wire transfer. All
costs, fees and expenses associated
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with the above wire transfers shall be borne by the PURCHASER exclusively.
2.6 In the event that PURCHASER does not make the payments indicated in
Section 2.2 on any of the dates indicated therein, in addition to paying the
interest indicated in Section 2.3 PURCHASER shall be obligated to pay interest
for late payment at a rate of 9% (nine percent) per annum over any payment not
made when due.
3. CLOSING.
3.1 The closing of the purchase and sale of the Stock hereunder shall be
held at the offices of Xxxxx & XxXxxxxx, located at Xxxxxxx X. Xxxx Xxxxxx
0000, 00xx. xxxxx, Xxxxxx Xxxxx, Xxxxxxxx of Argentina, on June 23, 1999 (the
"Closing Date") at 9.00 a.m., or after that date if the Parties so agree in
writing.
3.2 In order to implement and perfect the purchase and sale of the Stock,
the following events shall take place on or before the Closing Date. Full
compliance with these requirements is a condition precedent to the sale and
purchase of the Stock:
a) The certificates representing the Stock shall be delivered to
PURCHASER by SELLER. A list of the certificates representing the Stock is
attached hereto as ANNEX 1;
b) A letter signed by a duly authorized representative of SELLER
addressed to EMCO in which SELLER will inform EMCO of the sale of the Stock to
PURCHASER and request the registration of the sale in the Stock Registry Book
of EMCO, shall be delivered to EMCO, and which letter shall be in the form
attached hereto as ANNEX 2, both in English and in Spanish;
c) The principal and alternate directors and members of the
Fiscalization Committee of EMCO designated by SELLER and in all the subsidiary
companies thereof, all of whom are identified below in this Section 3.2 (c),
shall deliver to EMCO and to the subsidiary companies thereof their written
resignations, effective as of the Closing Date, which resignations will
include a waiver by them of all claims against EMCO and/or its subsidiary
companies for fees, reimbursement of expenses or any other reason whatsoever
and which letters shall be in the form attached hereto as ANNEX 3, both in
English and in Spanish. The directors and members of the Fiscalization
Committee that shall deliver to EMCO the above mentioned resignations are
Messrs. Xxxxx X. Xxxxx, Xxxxxxx
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Cuppi, Xxxxxxx X. Camandone, Xxxxxxx Xxxxxxxx, Xxxxxxx Xxxx Xxxxxxx and Xxxxxx
Xxxxx Xxxx;
d) The shareholders of EMCO other than SELLER and PURCHASER (the
"Remaining Shareholders") shall deliver to PURCHASER and to EMCO the
corresponding approvals and/or waivers and/or releases required under the
Shareholders' Agreement executed on January 8, 1998, by EMCO's shareholders
(the "Shareholders' Agreement") in the form similar to the one attached hereto
as ANNEX 4, both in English and in Spanish in order to enable PURCHASER to
purchase the Stock. If those approvals and/or waivers and/or releases are not
obtained and/or delivered to PURCHASER and to EMCO, SELLER must evidence to
the full satisfaction of PURCHASER that it has sent the notices required under
the Shareholders' Agreement to enable the Remaining Shareholders to exercise
their rights to purchase the Stock and that the Remaining Shareholders have
refused to do it and/or that the period contemplated under the Shareholders'
Agreement has elapsed without the Remaining Shareholders having effectively
exercised those rights;
e) The sale of the Stock shall have been approved by the
respective corporate authorities with power to approve it of both SELLER and
PURCHASER;
f) A Non-Competition Agreement substantially in the form of ANNEX
5 shall have been entered into by and between SELLER, Inversora del Suquia
S.A. and PURCHASER;
g) An agreement in the form in Spanish of the one set forth in
ANNEX 6 for the continuation of EMCO's preferred provider relationship for
life insurance with the SELLER until at least December 31, 2000, shall have
been entered into by and between SELLER and EMCO; and
h) An agreement for the provision of office space to EMCO's
subsidiaries shall have been entered into by and between SELLER and EMCO in
the form of the agreement in Spanish contained in ANNEX 7.
3.3 All of the documents, agreements, transactions, payments and transfers
described above shall be considered to be accomplished simultaneously, it
being the intention of the Parties that none of the documents shall be deemed
to be delivered and none of the actions shall be deemed to be effective until
all of such matters have been consummated, being these continuing obligations
of the Parties.
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4. REPRESENTATIONS AND WARRANTIES.
4.1 SELLER represents and warrants to PURCHASER that as of the date hereof
and on the Closing Date:
a) That SELLER has full corporate power and authority to enter
into this Agreement and to consummate the transactions contemplated hereby.
The execution, delivery and performance by SELLER of this Agreement has been
duly authorized by all required corporate actions. This Agreement has been
duly executed and delivered by SELLER, and constitutes a valid and binding
obligation of SELLER, enforceable in accordance with its terms.
b) That the Stock is free from any lien, embargo, attachment,
pledge, guarantee, or other encumbrance and/or of any other action, measure or
order that may prevent or limit in any way the transfer thereof in full
property to the PURCHASER on the Closing Date. SELLER has not granted any
options or offers to sell the Stock which remain valid, in force and binding
on the SELLER on the date of execution of this Agreement, other than to the
PURCHASER and, in general, has not entered into any other agreements with
third parties with respect to the Stock.
c) The execution and delivery by SELLER of this Agreement, the
consummation of the transactions contemplated hereby and the performance by
SELLER of this Agreement in accordance with its terms will not (i) require the
approval, consent or action of, or the making of any filing or declaration
with or the giving of any notice to, any person other than the notices,
approvals, waivers and/or releases required by the Shareholders' Agreement to
be issued by the Remaining Shareholders in accordance with Section 3.2 (d)
hereof; or (ii) conflict with or result in any breach or violation of any of
the terms and conditions of, constitute (or with notice or lapse of time or
both could constitute) a default under; or (iii) result in a breach or
violation or default under any legal requirement applicable to SELLER; or (iv)
result in the acceleration of the time for performance of any obligation under
any of the following:
(1) the By-laws, or any other organizing document of SELLER, as
currently in effect or in effect on the Closing Date;
(2) any lease or other contract, instrument or agreement, written or
oral, to which SELLER is a party or by which it is otherwise
bound or subject;
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(3) any judgment, decision, order, writ, injunction or decree of any
court, governmental body, administrative agency or arbitrator,
or similar body applicable to SELLER, any of the Stock, or the
capital stock of any of the subsidiaries of EMCO; or
(4) any law, statute, rule or regulation applicable to SELLER, any
of the Stock, or any of the capital stock of any of the
subsidiaries of EMCO.
d) SELLER is the beneficial and record holder of, and has good and
valid title to 13,925,000 (Thirteen Million Nine Hundred Twenty-Five Thousand)
Class "A" common, nominative, non-endorsable shares of 1 (one) vote per share
and a par value of $1 (one peso) each, which together represent 53.3525% of
the total issued and outstanding capital stock and votes of EMCO. The Stock
has been duly paid-in and has been validly issued. Upon delivery of the
certificates representing the Stock, PURCHASER will receive good and valid
title to all of the Stock.
e) No regulatory filing, notices and/or approval requirements
established by any agency of the Republic of Argentina or any other regulatory
body are necessary or required in order to effect the sale of the Stock.
4.2 PURCHASER represents and warrants the following:
a) PURCHASER has full corporate power and authority to enter into
this Agreement and to consummate the transactions contemplated hereby. The
execution, delivery and performance by PURCHASER of this Agreement has been
duly authorized by all required action of PURCHASER. This Agreement has been
duly executed and delivered by PURCHASER, and constitutes a valid and binding
obligation of PURCHASER enforceable in accordance with its terms.
b) The execution and delivery by PURCHASER of this Agreement, the
consummation of the transactions contemplated hereby and the performance by
PURCHASER of this Agreement in accordance with its terms will not (i) require
the approval, consent or action of, or the making of any filing or declaration
with or the giving of any notice to, any person; or (ii) conflict with or
result in any breach or violation of any of the terms and conditions of, or
constitute (or with notice or lapse of time or both would constitute) a
default under its By-laws, as currently in effect or any law, statute, rule or
regulation applicable to PURCHASER.
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c) No regulatory filing, notices and/or approval requirements
established by any agency of the Republic of Argentina, of the United States
of America or any other regulatory body are necessary or required in order to
effect the purchase of the Stock.
5. SURVIVAL OF REPRESENTATIONS AND WARRANTIES-WAIVER.
5.1 All representations, warranties and covenants made by the Parties
herein shall survive the Closing Date until the expiration of the applicable
statute of limitations relating to any issue thereunder.
5.2 SELLER hereby waives any and all actions or claims of any nature
whatsoever and to the fullest extent permitted by law that it may have against
EMCO, PURCHASER and/or any of their respective Directors and officers in
connection with or related to any claim or course of action SELLER may have or
be entitled to as shareholders of EMCO.
6. APPLICABLE LAW AND JURISDICTION.
6.1 This Agreement shall be governed by and construed in accordance with
the laws of the Republic of Argentina.
6.2 In the event of any disagreement, controversy or conflict in relation
to the interpretation or performance of this Agreement, the Parties expressly
agree to carry out an initial mediation process during a 30 (thirty) day term,
submitting themselves to the Proceeding Rules and Ethic Code of the Enterprise
Mediation and Arbitration Center ("Centro Empresarial de Mediacion y
Arbitraje, Asociacion Civil"). The Parties shall be able to extend such term.
The Parties shall be able to agree on alternate mediators and rules applicable
to any disagreement, controversy or conflict. However, in the absence of such
agreement, the mediators and rules indicated in the first sentence of this
Section will apply.
6.3 If no agreement is reached, the dispute or unresolved partial aspects
thereof, shall be submitted to arbitration with the "Tribunal Permanente de
Arbitraje de la Camara Argentina de Comercio" of the City of Buenos Aires, and
in accordance with its arbitration rules. The number of arbitrators shall be 3
(three), to be appointed 1 (one) by each Party and the third arbitrator by the
President of the "Camara Argentina de Comercio" from the list of arbitrators
provided by the "Camara Argentina de Comercio". The arbitral award, even if
rendered in contumacy of one of the Parties because of the latter's failure to
sign the arbitration commitment ("compromiso arbitral"),
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shall be enforced before the First Instance Commercial Courts of the City of
Buenos Aires in accordance with the rules of the Civil and Commercial
Procedural Code applicable in that jurisdiction. The arbitration will take
place in the City of Buenos Aires. The submission to arbitration implies the
express waiver by the Parties to any judicial action to which they might be
entitled as a consequence of the dispute subject to arbitration. No appeals
will be allowed against the arbitral award, to which the Parties expressly
waive.
7. NOTICES.
All notices to be provided pursuant to this Agreement shall be in
writing and delivered by hand, or sent by facsimile subsequently confirmed by
an internationally recognized air courier, (e.g., DHL, UPS, Federal Express),
and addressed as follows:
If to SELLER: Banco Suquia S.A.
25 xx Xxxx 160
(5000) Cordoba
Province of Cordoba
Republic of Argentina
Att: Xx. Xxxxxxx X. Xxxxx
Telefax: (54351) 4200316
With copy to: Xxxxxxx Xxxxx, Xxxxx, Xxxxx & Xxxx
Xxxxxxxxx 00 3rd. floor office "T"
(5000) Cordoba
Province of Cordoba
Republic of Argentina
Att. Xx. Xxxxxx Xxxxx
Telefax: (54351) 4210872 / 42126027
If to PURCHASER: PM Holdings, Inc.
Xxx Xxxxxxxx Xxx
Xxxxxxxx, XX 00000
Xxxxxx Xxxxxx of America
Att: Xx. Xxxx X. X. Xxxxxxx
Telefax: (0-000) 000-0000
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With copy to: PM Holdings, Inc.
Xxx Xxxxxxxx Xxx
Xxxxxxxx, XX 00000
Xxxxxx Xxxxxx of America
Att: Xxxxxx Xxxxxxx, Esq.
Telefax: (0-000) 000-0000
and with copy to: Xxxxx & XxXxxxxx
Xxxxxxx X. Xxxx Xxxxxx 0000, 00xx. floor
(1001) Buenos Aires
Republic of Argentina
Att: Xx. Xxxxxxx Xxxxx
Telefax: (00-00) 0000-0000
The addresses and facsimile numbers or notifications given pursuant to
this Agreement may be changed by means of a written notice to each of the
Parties at least fifteen (15) days prior to the effective date of such change.
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IN WITNESS WHEREOF, two (2) counterparts of this Agreement are
hereinbelow signed by the Parties.
/s/ Xxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxx
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By: Banco Suquia S.A. By: Banco Suquia S.A.
Name: Xxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxx
Position: Attorney-in-Fact Position: Attorney-in-Fact
Date: June 23, 1999 Date: June 23, 1999
/s/ Xxxx X. X. Xxxxxxx
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By: PM Holdings, Inc.
Name: Xxxx X. X. Xxxxxxx
Position: Attorney-in-Fact
Date: June 23, 1999
