EXHIBIT 10oo.
CAR TRACK, S. A. DE C.V.
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT is made as of the 14th day of March, 2003,
by and among:
(i) LoJack de Mexico, S. de X.X. de C.V., a Mexican limited
liability company (sociedad de responsabilidad limitada) ("LIV"), a wholly-owned
subsidiary of LoJack Corporation, a Massachusetts Corporation (the "Investor");
and
(ii) Grupo Car Mart, S.A. de C.V. (hereinafter "GCM"), a Mexican
corporation (sociedad anonima de capital variable) whose capital stock is owned
entirely by the persons listed as shareholders on the signature pages hereof;
and
(iii) Xxxx Xxxxxxx Xxxxx Xxxxxxxxx ("Xxxxx"), a Mexican individual,
whose participation in this agreement is solely and exclusively for purposes in
connection and under the terms of section 2.26 and section 7 in connection with
sections 2.3, 2.7, 2.10, 2.11, 2.12, 2.13, 2.14, 2.16, 2.18 and 2.24 hereof.
RECITALS
1. The Investor is a public company organized under the laws of
Massachusetts, United States of America, which core business is the sale and
operation of a system for the tracking and recovery of stolen vehicles. The
Investor has licensees of its systems in several countries.
2. GCM, through its subsidiaries Car Mart Mexico, S.A. de C.V.
("CMM"), Car Mart Comunicaciones, S.A. de C.V. ("CMC") and Car Mart
Instalaciones, S.A. de C.V. ("CMI" and, together with CMM and CMC, jointly the
Predecessors, each a Mexican corporation (sociedad anonima de capital variable),
is in the business of operating a system for the tracking and recovery of stolen
vehicles in Mexico (the "Business").
3. CMM is an Investor's licensee in Mexico to operate the
above-mentioned system. In the ordinary course of business, the Investor sells
products to CMM, and as a result of deliveries of products that the Investor has
made to CMM as of this date in the amount of US$ One Million Five Hundred One
Thousand Nine Hundred Sixteen (1,501,916 00/100 Dollars) the Investor holds an
account receivable against CMM for such amount (the "Account Receivable").
4. On June 19, 2002, the Investor and the Shareholders executed and
delivered a non-binding Preliminary Summary of Terms (the "Letter of Intent"),
whereby GCM set forth in writing its intention to sell to the Investor a twelve
and a half per cent (12.5%) equity interest in the Business (the "Equity
Investment") and the Investor set forth in writing its intention to acquire the
Equity Investment, through a joint venture company (the "Company").
5. In order to implement the terms and conditions reflected in the
Letter of Intent, the Investor, through LIV and together with GCM, have agreed
to form a new company (the "Company") which will acquire from GCM all the
latter's interest in the Predecessors and from the Investor the Account
Receivable, and which shall conduct the Business.
6. The Investor and LIV have completed its due diligence
examination of the Predecessors. Investor's due diligence shall in no way limit
GCM and Xxxxx'x liability hereunder including, without limiting the generality
of the foregoing, liability in case of breach of representations and warranties.
IN VIRTUE OF THE ABOVE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Stock.
1.1 Organization of the Company and Issuance of Shares.
(a) The Company will be incorporated as a wholly-owned
subsidiary of GCM, under the name _Car Track, S.A. de C.V.. In order to meet the
requirements of Mexican corporate law, one of the Predecessors will also hold
one
share in the Company upon incorporation. The Company will have an initial
capital stock of $50,000 (fifty thousand 00/100 Mexican Pesos), which will be
funded by GCM entirely.
(b) At Closing,
(i) GCM will transfer all of its shareholding in the
Predecessors to the Company, so that after giving effect to such
transfer (x) the Company will become the owner of record of all
but one of the shares of each of the Predecessors, and (y) each
of the Predecessors will become a Subsidiary of the Company.
(ii) The account payable in favor of GCM that would derive
from transferring the Predecessors' shares to the Company, will
be capitalized at Closing by GCM in the Company (the "GCM's
Contribution"), along with the Investor's Initial Contribution
(as such term is defined below), and GCM will receive in
exchange "Class A" shares of the Company that, in addition to
the shares received by GCM and CMM upon incorporation of the
Company pursuant to (a) above, shall be equivalent to 87.5%
(eighty seven point five percent) of the capital stock of the
Company. The secretary of the Company will include an entry in
the shareholders' registry book of the Company to document the
foregoing.
(iii) Simultaneously to GCM's Contribution, and provided all
conditions precedent set forth in Section 4 hereof have been
complied with at LIV's satisfaction, LIV will contribute the
Account Receivable to the Company at face value (the "Investor's
Initial Contribution") and will receive in exchange "Class B"
shares of the Company equivalent to 12.5% (twelve point five
percent) of the capital stock of the Company. The secretary of
the Company will include an entry in the shareholders' registry
book of the Company to document the foregoing.
(iv) At Closing, simultaneously to GCM's Contribution, CMM
shall transfer its share in the Company to GCM.
(v) Simultaneously to GCM's Contribution and the Investor's
Initial Contribution, LIV and GCM, in their capacity as
shareholders of the Company, will adopt written consent
resolutions of the Company, substantially in the terms of
Exhibit "A" hereof, whereby (w) the Company will capitalize the
account receivable derived from the GCM's Contribution and,
thus, will increase the value of GCM's shareholding in the
Company in an amount which together with GCM's contribution to
the initial capital of the Company, shall equal eighty seven
point five percent (87. 5%) of the total capital of the Company,
(x) the Company will capitalize the Investor's Initial
Contribution and, thus, will increase the value of LIV's
shareholding in the Company in an amount equivalent to the
Account Receivable, which shall equal twelve point five percent
(12. 5%) of the total capital of the Company, (y) the by-laws of
the Company will be amended substantially in the terms of the
by-laws attached hereto as Exhibit "B"; and (z) the Company will
appoint board members, officers, and auditors, in accordance
with Exhibit "C" hereof.
(vi) GCM shall endorse and deliver the share certificates of
each of the Predecessors to the Company, and the secretary of
each of the Predecessors will register in the corresponding
shareholders registry book the transfer of the Predecessors'
shares to the Company.
(vii) The Company and each of CMM, CMI, and CMC, as the case
may be, as shareholders of each of the Predecessors, will adopt
shareholders resolutions of the corresponding Predecessor,
substantially in the terms of Exhibit "D" hereto, whereby (x)
the by-laws of each of the Predecessors will be amended
substantially in the terms of the by-laws attached hereto as
Exhibit "E", (y) recognize the Company as the shareholder of the
majority of each of the Predecessors shares, and (z) appoint
board members, officers, and auditors, in accordance with
Exhibit "F" hereof.
(c) Each of the parties hereto will participate and
cooperate in the preparation and filing of all applications and will devote
their best efforts to obtain all approvals necessary from competent governmental
authorities in order to effect GCM's Contribution and for each of the
Predecessors to become a Subsidiary of the Company. Likewise, the Company will
be required to register before the National Registry of Foreign Investments
(Registro Nacional de Inversiones Extranjeras) within the forty (40) working
days following the Closing Date. The parties hereto will provide to the Company
any information and documentation required for such purpose.
Closing. Provided the conditions precedent set forth in Section 4 hereof have
been complied to the satisfaction of LIV, Closing of this Agreement and the
subscription of the "Class A" and "Class B" shares referred to in Sections 1.1
and 1.2 hereof, shall take place at the offices of GCM, Grupo Car Mart, S.A. de
C.V., Xxxxxxxxx Xxxxx No. 304, Col. Xxxxxxx,
Delegacion Xxxxxx Xxxxxxx 00000, Xxxxxx City, Mexico, at such time, not later
than August 31, 2003 and place as GCM and the Investor mutually shall agree
orally or in writing (which time and place are designated as the "Closing").
2. Representations and Warranties of GCM. GCM, jointly and
severally with the Predecessors, hereby represents and warrants to the Investor
and LIV that the statements contained in this Section 2 are true and correct,
except as set forth on the attached hereto, a Schedule of Exceptions (the
"Schedule of Exceptions") furnished to the Investor, LIV and special counsels
for the Investor and LIV, which exceptions shall be deemed to be representations
and warranties as if made hereunder:
2.1 Organization and Qualification of the Predecessors and the
Company. Each of the Predecessors and the Company is a corporation (sociedad
anonima de capital variable) duly organized, validly existing, and has all
requisite corporate power and authority to carry on its business as now being
conducted. Each of the Predecessors is duly qualified or licensed, and has all
required government approvals to do business in Mexico and, as required, in
every state thereof in which the nature of the business conducted by it as of
this date makes such licenses and approvals necessary. GCM has made available to
the Investor, LIV and special counsels for the Investor and LIV true and correct
copies of the respective articles of incorporation and by-laws (escritura
constitutiva y estatutos sociales) of each of the Predecessors and the Company,
as most recently amended.
2.2 Authority. GCM has all requisite power and authority to execute,
deliver and perform its obligations, and to consummate the transactions
contemplated, under (i) this Agreement, and (ii) the Partners Agreement that is
simultaneously entered into as of the date hereof by and among the Investor
through LIV, and GCM, and all other agreements and resolutions required to be
executed pursuant to this Agreement, and to carry out the transactions
contemplated hereby and thereby. This Agreement has been duly executed and
delivered by GCM and constitutes a legal, valid and binding obligation and is
enforceable against GCM in accordance with its terms.
2.3 Capitalization and Voting Rights. The authorized capital of the
each of the Predecessors and the Company consists, or will consist immediately
prior to the Closing, of:
(a) CMM's Common Stock. 20,000,000 (twenty million) shares
of common stock, each with a par value of $1,000 (one thousand) of which (i)
20,000,000 (twenty million) are issued and outstanding as of the date hereof,
(ii) 50,000 (fifty thousand) form the fixed portion of its capital stock, and
19,950,000 (nineteen million nine hundred and fifty) form its variable portion.
(b) CMC's Common Stock. 5,000 (five thousand) shares of
common stock, each with a par value of $1,000 (one thousand) of which 5,000
(five thousand) are issued and outstanding as of the date hereof, and all of
them constitute the fixed portion of its capital stock.
(c) CMI's Common Stock. 50,000 (fifty thousand) shares of
common stock, each with a par value of $1,000 (one thousand) of which 50,000
(fifty thousand) are issued and outstanding as of the date hereof, and all of
them constitute the fixed portion of its capital stock.
(d) Company's Common Stock. $50,000 (fifty thousand) shares
of common stock, each with a par value of $1.00 (one Mexican Peso), all
corresponding to the fixed portion of its capital stock.
(e) All of the shares representing the capital stock of each
of the Predecessors and the Company are all duly and validly authorized and
issued, fully paid and free of any liens, charges, claims, restrictions and
encumbrances of any nature whatsoever, and were issued in accordance with all
applicable provisions of the General Law of Commercial Companies of Mexico (Ley
General de Sociedades Mercantiles).
(f) There are not outstanding any options, warrants, rights
(including conversion or preemptive rights) or agreements for the purchase or
acquisition of any shares of any of the Predecessors' or of the Company's
capital stock. In addition, except as contemplated by this Agreement or any
agreements to be entered into pursuant hereto, none of the Predecessors nor the
Company has any obligation to pay any dividends or make any distributions in
respect thereof.
(g) As of the date of Closing, all of the outstanding shares
of capital stock of the Company (except for one share owned by CMM) and of each
of the Predecessors are owned by GCM, CMM, CMC, and/or CMI, as set forth in
Schedule 2.3 (f) hereof, free and clear of any preemptive right, mortgage,
charge, pledge, security interest, encumbrance, lien, assignment for security,
claim, preference, priority or other encumbrance of any kind, and are duly
authorized, validly issued, and fully paid.
2.4 Subsidiaries. Except as set forth in section 2.4 of the Schedule
of Exceptions, none of the Predecessors nor the Company has any Subsidiaries, is
a participant in any joint venture, partnership, or similar arrangement, nor
holds shares, equity interests, or any other interest entitling it to vote in an
shareholders or partners meeting or to receive dividends of any Mexican or
foreign entity. All but one of the outstanding shares of capital stock of each
of the Predecessors are, or will be upon the Closing, owned by the Company, free
and clear of all liens, and are duly authorized, validly issued, fully paid and
nonassessable.
For purposes of this Agreement, "Subsidiary" means any Person of which
such parent, at the time in respect of which such term is used, (a) owns or has
a right to own, directly or indirectly, more than fifty percent (50%) of the
equity or beneficial interest, on a consolidated basis, or (b) directly owns, or
has a right to own, or controls with power to vote, indirectly through one or
more Subsidiaries, shares of capital stock or beneficial interest having the
power to cast at least a majority of the votes entitled to be cast for the
election of directors, trustees, managers or other officials having powers
analogous to those of directors of a corporation.
2.5 Conflicts. Except as set forth in Section 2.5 of the Schedule of
Exceptions, the execution and performance of this Agreement and all such other
instruments and agreements and the transactions contemplated hereby and thereby
and the compliance with their provisions by GCM and each of the Predecessors
will not violate any provision of law and will not conflict with or result in
any breach of any of the terms, conditions or provisions of, or constitute a
default under, or require a consent or waiver under, its by-laws or any
indenture, lease, agreement or other instrument to which GCM or any of the
Predecessors is a party or by which GCM or any of the Predecessors or any of
their respective properties are bound, or any decree, judgment, order, statute,
rule or regulation applicable to GCM, any of the Predecessors, or any of their
properties or assets.
2.6 Governmental Consents. Except as indicated in section 2.6 of the
Schedule of Exceptions, no consent, approval, order or authorization of, or
registration, qualification, designation, declaration or filing with, any
federal, state or local governmental authority on the part of the Predecessors
or GCM is required in connection with (i) the execution and delivery of this
Agreement, the transfer of the shares representing the capital stock of the
Predecessors to the Company, the Partners Agreement and other instruments or
agreements contemplated hereby and thereby, and (ii) the consummation of the
transactions contemplated by this Agreement and the Partners Agreement.
2.7 Litigation. Except as set forth in Section 2.7 of the Schedule
of Exceptions, there is no action, suit, proceeding or investigation pending or
threatened against the Company of any kind whatsoever, or against GCM and/or the
Predecessors questioning the validity of this Agreement, or the right of GCM to
enter into such agreement, its ownership of all but one of each of the
Predecessors' shares, and its right to transfer such shares to the Company, or
to consummate the transactions contemplated hereby, or that might result, either
individually or in the aggregate, in any adverse effect, or any change in the
shareholding of the Predecessors, nor is there any litigation to GCM's knowledge
or any reasonable basis therefor or threat thereof, against GCM or any of the
Predecessors by reason of the past employment relationship of any of the
shareholders or employees, the currently proposed activities of the Company or
of the Predecessors, or negotiations by the Company with possible investors in
the Company or in the Predecessors. To the knowledge of GCM, Xxxxx and of each
of the Predecessors, and except as set forth in Section 2.7 of the Schedule of
Exceptions, the Predecessors are not a party or subject to the provisions of any
order, writ, injunction, judgment or decree of any court or government agency or
instrumentality. Except as set forth in Section 3.7 of the Schedule of
Exceptions, there is no action, suit, proceeding or investigation by any of the
Predecessors currently pending or that any of the Predecessors intends to
initiate. The representation of Xxxxx hereunder shall be qualified by "to his
knowledge."
2.8 Certain Employee Matters.
(a) To the best of the knowledge of GCM and except as
otherwise indicated in Section 2.8(a) of the Schedule of Exceptions, none of the
key employees of the Predecessors listed by function in Section 2.8(a) of the
Schedule of Exceptions are, and none will be, as a result of their employment by
the Company of by any of the Predecessors, the nature of the business conducted
or proposed to be conducted by the Company and the Predecessors, or for any
other reason, in violation of (i) any confidentiality or other obligation to a
prior employer or entity that received consulting or other services from such
Key Employee, or (ii) any other contract or agreement, or any judgment, decree
or order of any court or administrative agency, relating to confidentiality
obligations of such Key Employee.
(b) GCM is not aware that any employee or advisor of the
Company or of any of the Predecessors has plans to terminate his or her
employment relationship with the Company or any of the Predecessors, as the case
may be. The Company and each of the Predecessors, as the case may be, has
complied in all material respects with all applicable laws relating to wages,
hours, equal opportunity, collective bargaining and the payment of social
security and other taxes. None of
the employees of the Company nor of any of the Predecessors is represented by
any labor union, and there is no labor strike or other labor trouble pending
with respect to the Company or of any of the Predecessors (including, without
limitation, any organizational drive) or, to GCM's and each of the Predecessors'
knowledge, threatened.
(c) Except as set forth in Section 2.8 (c) of the Schedule
of Exceptions, no current or former key employee has filed any complaint against
any of the Predecessors or against the Company, derived or related to a former
or current labor relationship with any of Predecessors, the Company, or,
directly or indirectly, to the Business.
2.9 Compliance. Except as set forth in section 2.9 of the Schedule
of Exceptions, the Company and each of the Predecessors has, in all material
respects, complied with all laws, regulations and orders applicable to their
present business and the Predecessors have all material permits and licenses
required to conduct the Business as they have done until the date hereof. Except
as set forth in Section 2.9 of the Schedule of Exceptions, the Predecessors are
not in default under any of such franchises, permits, licenses, or other similar
authorities. There is no term or provision of any mortgage, indenture, contract,
agreement or instrument to which the Company or any of the Predecessors is a
party or by which any of them is bound, or of any provision of any state or
federal judgment, decree, order, statute, rule or regulation applicable to or
binding upon the Predecessors or the Company, which adversely affects any of the
Predecessors or the Company or, so far as the GCM may now reasonably foresee, in
the future is reasonably likely to result in or have an adverse effect upon the
Predecessors or the Company. To GCM's knowledge, no officer, director, employee
or consultant of the Predecessors is in violation of any term of any contract or
covenant (either with any of the Predecessors, or with another entity) relating
to employment, consulting, patents, assignment of inventions, proprietary
information disclosure, noncompetition or nonsolicitation.
2.10 Permits. Except as set forth in the Schedule of Exceptions, the
Predecessors have all franchises, permits, licenses, and any similar authority
necessary for the conduct of the Business as now being conducted, the lack of
which could materially and adversely affect the business, properties, prospects,
or financial condition of any of the Predecessors, as the case may be. Except as
set forth in the Schedule of Exceptions, the Predecessors are not in default in
any material respect under any of such franchises, permits, licenses, or other
similar authorities.
2.11 Material Contracts and Obligations. Section 11 of the Schedule
of Exceptions sets forth a list of all agreements or commitments of any nature
to which any of the Predecessors or the Company is a party or by which they are
bound and which are material to the Predecessors, or their respective businesses
("Material Contracts").
For purposes of this Agreement Material Contract shall mean any contract
or group of related contracts with the same party involving more than US$50,000
(Fifty Thousand Dollars, legal currency of the United States of America) or
continuing over a period of more than twelve months from the date or dates
thereof (including renewals or extensions optional with another party), which
contract or group of contracts is not terminable by any of the Predecessors or
the Company, as the case may be, without penalty or any other liability
whatsoever, upon notice of thirty (30) days or less, but excluding any contract
or group of contracts with a customer of any of the Predecessors for the sale,
lease or rental of the respective Predecessors' products or services if such
contract or group of contracts was entered into by the respective Predecessor in
the ordinary course of business.
All of such agreements are valid and binding on the respective
Predecessor, as the case may be, and to each of the Predecessor's knowledge, on
each other party thereto, and are in full force and effect. Neither of the
Predecessors, as the case may be, nor, to GCM's or the Predecessors' knowledge,
any other party thereto, is in default of any of its obligations under any of
such agreements in a manner which could have a materially adverse effect.
2.12 Related Party Transactions. Except as set forth in Section 2.12
of the Schedule of Exceptions, no shareholder, employee, officer, or director of
GCM or any of the Predecessors or member of his or her immediate family has any
material obligation to any of the Predecessors, nor does GCM's or any of the
Predecessors have any material obligation to any of them. Except as set forth in
Section 2.12 of the Schedule of Exceptions, to GCM's knowledge none of the
persons mentioned above has any direct or indirect ownership interest in any
firm or corporation with which any of the Predecessors is affiliated or with
which any of the Predecessors has a business relationship, or any firm or
corporation that competes with the Company or with any of the Predecessors,
except that employees, officers, or directors of the Company and members of
their immediate families may own stock in publicly traded companies that may
compete with the Company or with any of the Predecessors. Except as set forth in
Section 2.12 of the Schedule of Exceptions, no shareholder of GCM, or member of
the immediate family of any officer of director of GCM or of any of the
Predecessors is directly or indirectly interested in any Material Contract with
the Company or with any of the Predecessors.
2.13 Title to Property and Assets. Each of the Predecessors has good
and valid title to, or a valid leasehold interest in, all of its material
properties and assets, including all properties and assets reflected on the
Balance Sheet (as defined in Section 2.15 hereof), and none of such properties
or assets is subject to any mortgage, lien, pledge, security, lease,
charge or encumbrance ("Encumbrance") other than Permitted Encumbrances (as
herein defined). As used herein, "Permitted Encumbrances" means (i) those
Encumbrances disclosed in the Financial Statements (as defined in Section 2.14),
(ii) statutory liens for current taxes or assessments not yet due or the
validity of which are being contested in good faith by appropriate proceedings;
(iii) mechanics', workers', carriers' or similar liens arising in the ordinary
course of business with respect to charges not yet due; and (iv) Encumbrances
disclosed in section 2.13 of the Schedule of Exceptions. The respective
Predecessors enjoy peaceful and undisturbed possession under all leases under
which they are operating and all such leases are in full force and effect,
without any default on the part of the respective Predecessor, as the case may
be, and to GCM's and the respective Predecessor's knowledge, any other party
thereto.
2.14 Financial Statements. GCM has furnished to the Investor, LIV and
special counsels for the Investor and LIV a true, complete and correct copy of
the financial statements listed in Section 2.14 of the Schedule of Exceptions
(the "Financial Statements"). Xxxxx hereby represents and warrants, to the best
of his knowledge, that all material information required under standard auditing
rules was provided to the auditing firm that prepared and audited the Financial
Statements. Xx. Xxxxx'x liability for breach of this representation is limited
to claims exceeding US$50,000 (Fifty Thousand Dollars 00/100).
2.15 Fairness of Financial Statements. The Financial Statements
present fairly in all material respects the financial condition and results of
operations of each of the Predecessors, respectively, as of the dates and for
the periods indicated, and have been prepared from the books and records of the
respective Predecessor and in accordance with generally accepted accounting
principles in Mexico ("GAAP") consistently applied (except for, in the case of
unaudited financial statements, any variance from GAAP due to the absence of
footnotes and normal year?end adjustments, which in the aggregate are not
expected to be material).
2.16 Absence of Undisclosed Liabilities. The Company does not have
any liabilities. Each of the Predecessors does not have any liability exceeding
US$50,000.00 (whether absolute or contingent) except for (i) liabilities shown
on the most recent balance sheet included in the Financial Statements (the
"Balance Sheet"); (ii) liabilities which have arisen since the date of the
Balance Sheet (the "Balance Sheet Date") in the ordinary course of business and
which singly or in the aggregate, are not material to the business, properties,
assets, financial condition or operating results of the respective Predecessor,
as the case may be, (iii) contractual and other liabilities incurred in the
ordinary course of business which are not required by GAAP to be reflected on a
balance sheet and (iv) liabilities disclosed in section 2.16 of the Schedule of
Exceptions. Xx. Xxxxx'x liability for breach of the representation contained in
this paragraph 2.16 is limited to claims exceeding the equivalent of
U.S.D.$50,000 (Fifty Thousand Dollars 00/100).
2.17 Absence of Changes. Except as set forth in section 2.17 in the
Schedule of Exceptions, since the Balance Sheet Date, there has been no
materially adverse effect in any of the Predecessors exceeding US$50,000.00,
other than changes occurring in the ordinary course of business.
2.18 Tax Returns and Payments. The amount shown on the Balance Sheet
of each of the Predecessors, as provision for taxes, is sufficient in all
material respect for payment of all accrued and unpaid taxes of each of the
Predecessors for the period then ended and all prior periods. Each of the
Predecessors has filed all tax returns and reports (including information
returns and reports) as required by law. These returns and reports are true and
correct in all material respects. Each of the Predecessors has paid all taxes
and other assessments due. The federal income tax returns of each of the
Predecessors have not been audited by the Ministry of Finance and Public Credit
(Secretaria de Hacienda y Credito Publico) ("SHCP"), and no such audit, to
GCM's, Xxxxx and each of the Predecessors' knowledge, is or has been threatened.
Each of the Predecessors has withheld or collected from each payment made to its
employees the amount of all taxes required to be withheld or collected therefrom
and has paid all such amounts to the appropriate taxing authorities when due.
2.19 Labor Obligations. Each of the Predecessors is in compliance
with all material laws and regulations relating to labor and social security
matters, including all obligations derived from the Social Security Law (Ley del
Seguro Social), the Federal Labor Law (Ley Federal del Trabajo), and all other
related social security provisions. To GCM's, Xxxxx'x, and each of the
Predecessors' knowledge, no audit is being conducted, or has been threatened, by
the Instituto Mexicano del Seguro Social.
2.20 Minute Books. The corporate books of each of the Predecessors
made available to the Investor, LIV and special counsels for the Investor and
LIV contain an accurate summary of all meetings of directors and stockholders
since the time of incorporation and reflect all transactions referred to in the
same accurately in all material respects as required by applicable law. The
shareholders registry book of each of the Predecessors is complete and reflects
all issuances, transfers and cancellations of shares of each of the
Predecessors. Each of the Predecessors have verified, as required by applicable
law, that income taxes derived from transfer of shares issued by the
corresponding Predecessor, as the case may be, have
been paid to the competent taxing authority prior to recording such transaction
in the corresponding shareholders' registry book.
2.21 Brokers. Except as set forth in Section 2.21 of the Schedule of
Exceptions, none of the Predecessors has any kind of contract, arrangement or
understanding with any broker, finder or similar agent with respect to the
transactions contemplated by this Agreement.
2.22 Insurance. Section 2.22 of the Schedule of Exceptions includes a
list of all valid policies of insurance with respect to its properties and
business of the kinds and in the amounts for each of the Predecessors.
2.23 Benefit Plans. Section 2.23 of the Schedule of Exceptions is a
complete and accurate list of all Benefit Plans (as defined below) which are
sponsored or maintained by the Predecessors, or to which any of the Predecessors
has any obligation to contribute or is otherwise a party, or with respect to
which any of the Predecessors has any liability.
2.24 Disclosures. To GCM's knowledge, there exists no fact or
circumstances which materially and adversely affects, or has a reasonable
possibility of materially and adversely affecting, the business, assets or
condition, financial or otherwise, or operations of each of the Predecessors,
which has not been reflected in their respective Financial Statements or set
forth in this Agreement or the Exhibits and Schedules attached hereto or fully
disclosed to the Investor by GCM pursuant to this Agreement. The representations
and warranties of Xxxxx for this paragraph are made in good faith and to his
knowledge.
2.25 Authorization. All corporate action on the part of the Company
and each of the Predecessors, its officers, directors and stockholders necessary
for the authorization, execution and delivery of this Agreement and the Partners
Agreement, the performance of all obligations of the Company and of each of the
Predecessors hereunder and thereunder, and the authorization, issuance and
delivery of the "Class B" shares, has been legally taken or will be legally
taken prior to the Closing, and this Agreement and the Partners Agreement
constitute valid and legally binding obligations of the Company, the
Shareholders, either directly or through GCM, and each of the Predecessors, as
the case may be, enforceable in accordance with their respective terms, except
as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and
other laws of general application affecting enforcement of creditors' rights
generally. The execution and performance of this Agreement, the Partners
Agreements and all such other instruments and agreements and the transactions
contemplated hereby and thereby and the compliance with their provisions by the
Company, the Shareholders, directly or through GCM, as the case may be, and by
each of the Predecessor will not violate any provision of law and will not
conflict with or result in any breach of any of the terms, conditions or
provisions of, or constitute a default under, or require a consent or waiver
under, its by-laws or any indenture, lease, agreement or other instrument to
which the Company, the Shareholders, directly or through GCM, or any of the
Predecessors is a party or by which the Company or any of the Predecessors or
any of its properties is bound, or any decree, judgment, order, statute, rule or
regulation applicable to the Company, any of the Predecessors, or any of its
properties or assets..
2.26 Joint Representations. The representations and warranties
scontained in sections 2.3, 2.7, 2.10, 2.11, 2.12, 2.13, 2.14, 2.16, 2.18 and
2.24 hereof are made jointly by GCM and Xxxx Xxxxxxx Xxxxx Xxxxxxxxx . The
responsibility of Xxxxx for certain warranties and representations is limited as
provided in those sections above in this Section 2.
3. Representations and Warranties of the Investor. Each of the
Investor and LIV hereby represents and warrants that they have full power and
authority to enter into this Agreement and the Partners Agreement to which they
are a party and each such agreement constitutes valid and legally binding
obligation, enforceable in accordance with its terms except as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of
general application affecting enforcement of creditors' rights generally.
4. Conditions of the Investor's Obligations at Closing. The
obligations of the Investor under Section 0 of this Agreement are subject to the
fulfillment on or before the Closing of each of the following conditions:
4.1 Corporate Updating. The Predecessors shall have updated their
corporate records as necessary in order to comply with all its obligations under
the General Law of Commercial Companies (Ley General de Sociedades Mercantiles)
in this regard, including, updating its corresponding shareholders registry book
in order for it to reflect the original shareholding of the corresponding
Predecessor, as of the date of its incorporation, and all sales or transfer of
shares that may have occurred until the Closing date.
4.2 Transfer of Shares to GCM. GCM shall enter into all agreements
that may be required under Mexican law in order to acquire all but one of the
shares of each of Predecessors, prior to the Closing date. GCM shall provide the
Investor with evidence that each of the shares issued by each of the
Predecessors, except for one, have been transferred and endorsed in favor of
GCM, as required under Mexican corporate law.
4.3 Representations and Warranties. The representations and
warranties of GCM and Xxxxx contained in Section 2 shall be true and complete on
and as of the Closing with the same effect as though such representations and
warranties had been made on and as of the date of such Closing.
4.4 Performance. The Company, GCM and each of the Predecessors shall
have performed and complied with all agreements, obligations and conditions
contained in this Agreement that are required to be performed or complied with
by it on or before the Closing.
4.5 Compliance Certificate. GCM shall deliver to the Investor at the
Closing a certificate signed by a duly authorized officer of each of the
Predecessors stating that there shall have been no materially adverse effect in
the financial situation of each of the Predecessors since the date of issuance
of their respective Balance Sheets and until the Closing date.
4.6 Opinion of Company Counsel. The Investor shall have received
from counsel for the Company, an opinion, dated as of the Closing, in form
reasonably satisfactory to counsel to the Investor.
4.7 Partners Agreement. The Investor, directly or through LIV, and
GCM, shall have entered into the Partners Agreement.
4.8 Supporting Documents. The Investor and their special counsel
shall have received copies of the following documents:
(a) a copy of the Charter and the by-laws of the Company,
certified as of a recent date by a Notary Public;
(b) a certificate of the Secretary of the Company dated at
the Closing Date and certifying: (i) that attached thereto is a true and
complete copy of all resolutions adopted by the Board of Directors and the
partners of the Company authorizing the execution, delivery and performance of
this Agreement and the Partners Agreement; the issuance and delivery of Class A
and Class B shares as provided in Section 1.1 hereof, and that all such
resolutions are in full force and effect and all were adopted in connection with
the transactions contemplated by this Agreement, and the Partners Agreement;
(ii) that the Company's and each of the Predecessors' by-laws have not been
amended since the date of the certificate delivered pursuant to paragraph (a)
above; and (iii) to the incumbency and specimen signature of each officer of the
Company executing this Agreement and the Partners Agreement, the shares
representing Class A and Class B shares, and any certificate or instrument
furnished pursuant hereto, and a certification by another officer of the Company
as to the incumbency and signature of the officer signing the certificate
referred to in this paragraph (b); and
(c) certified copies of the authorizations issued by the
Mexican Competition Commission (Comision Federal de Competencia), the Ministry
of Interior (Secretaria de Gobernacion), and the Ministry of Communications and
Transportations (Secretaria de Comunicaciones y Transportes) in connection with
the transfers of ownership contemplated by this Agreement.
4.9 Invention and Non-Disclosure Agreements and Non-Competition and
Non-Solicitation Agreements. Each employee of the Company and of each of the
Predecessors shall have entered into a Confidentiality Agreement, and each Key
Employee shall have entered into a Non-Competition and Non-Solicitation
Agreement, both in the forms attached hereto as Exhibit "G".
5. Conditions of GCM's Obligations at Closing. The obligations of
GCM to the Investor and LIV under this Agreement are subject to the fulfillment
on or before the Closing of each of the following conditions by the Investor:
5.1 Representations and Warranties. The representations and
warranties of the Investor and LIV contained in Section 2 shall be true on and
as of the Closing with the same effect as though such representations and
warranties had been made on and as of the Closing.
5.2 Authorizations. GCM shall have obtained from the pertinent
authorities and agencies all permits and authorizations set forth in section
2.10 of the Schedule of Exceptions,
5.3 Opinion of Investor Counsel. GMC shall have received from
counsel for the Investor, an opinion, dated as of the Closing, in form
reasonably satisfactory to counsel to GCM.
6. Covenants of the Investor.
Confidentiality. Investor hereby agrees to take all reasonable
precautions not to use any confidential information of the Company, other than
for valid purposes associated with its status as an investor in the Company, and
to safeguard the confidentiality of the information received by or disclosed to
the Investor about the Company and its affairs in the fulfillment of its
obligations hereunder and except as required by law, to refrain from disclosure
of such information to anyone other than the Investor' representatives,
including without limitation, accountants, attorneys or other professional
advisors.
7. Indemnification.
7.1 Survival. The representations, warranties, covenants, negative
covenants, and agreements set forth in this Agreement and in any exhibit or
schedule, shall survive for a period of twelve (12) months after the Closing of
this agreement (the "Indemnification Period"), except for any representation,
warranty, covenant and/or agreement related to any taxes, which shall survive
for the applicable statute of limitations.
7.2 Indemnification by GCM and Xxxxx. Subject to the terms of this
Section 7 hereof, GCM, and Xxxxx, jointly and severally, hereby undertake to
defend, save harmless and indemnify the Investor with respect to any action,
claim, demand, proceeding, judgment, expenses and legal costs, including
attorneys fees and, in general, with respect to any damage to the Investor
deriving from (i) inaccurate or false statement, warranty or representation made
by GCM or Xxxxx in accordance with this Agreement, and/or (ii) any obligation,
liability or contingency of any nature whatsoever against either of the
Predecessors or the Company including liabilities deriving from taxes for all
past fiscal years and the period ending on the date of this Agreement, or
liabilities, and/or (iii) any obligation, liability or contingency of any nature
whatsoever against any of the Predecessors and the Company resulting from
actions or omissions carried out up to the date of Closing, and not recorded in
the Financial Statements of the respective Predecessor or in the Schedule of
Exceptions; and/or (iv) any transaction carried out by either Predecessor and
the Company outside the ordinary course of business and carried out or
originated prior to the Closing Date. In connection with breach of
representations as set forth in (i) above, Xxxxx'x direct indemnity obligation
will be limited as set forth in Section 2.26 hereof.
7.3 Procedure for Indemnification. In connection with any claim for
indemnification by the Investor under this Section 7, the procedure set forth
below shall be followed.
(i) Notice. No claim may be asserted, nor may any action be
commenced, against GCM for inaccuracy of any disclosure or for breach or
non-performance of any covenant contained herein unless written notice of such
claim or action is received by GCM describing the factual basis of such claim or
action in reasonable detail to the extent then known by Investor and/or LIV and
identifies the provision of the Agreement to which such claim or action relates,
on or prior to the expiry of the Indemnification Period. In the case of any
third party claim, action or other matter with respect to which indemnity may be
sought under this Agreement, the Company shall give to the Investor written
notice of any claim, suit or judgment promptly but in any event at least five
(5) days after the Company or any of the Predecessors receives written notice
thereof. Breach of this notice obligation by the Company or by any of the
Predecessors will automatically extend the Indemnification Period with respect
to any matter related to or arising out of such claim, suit, action, matter or
judgment not notified, and the respective obligations in this regard of each of
GCM and of Xxxxx, when applicable, for an additional term of 12 (twelve) months
counted as of the date on which LIV or the Investor, as the case may be, becomes
aware of such breach of obligation.
(ii) Defense of a Claim. The Investor, after giving such
notice, shall have the right to adjust or settle any claim, suit or judgment
coming within the scope of this indemnity obligation unless GCM, no later than
ten (10) working days after receiving the above notice, agrees in writing to
litigate, defend or appeal, promptly assume the litigation, defense or appeal
thereof with counsel acceptable to the Investor or LIV. In such case, the
Company and/or the respective Predecessor, as the case may be, must immediately
grant the necessary powers of attorney to LIV and/or counsel to litigate and/or
defend the third party claim.
(iii) Both Parties Right to Participate. Either party hereto
desiring to participate in the handling of any such claim, suit or judgment
being handled by the other party shall have the right, at its expense and with
its counsel, to join with the other party and participate fully in the defense
of any such claim or contest.
(iv) Cooperation. The Investor and GCM shall cooperate in the
defense of any such claim or litigation and each shall make available all books
and records which are relevant in connection with such claim or litigation.
(v) Direct Claims. Any claim for indemnity pursuant to this
Section 7 made directly by the Investor or LIV to GCM, and which does not result
from a third party claim or action, shall be asserted by written notice by the
Investor to GCM. The liable party, as the case may be, shall have a period of
thirty (30) calendar days within which to respond thereto. If the liable party
does not respond within such 30-day period, the liable party shall be deemed not
to have accepted responsibility to make payment.
(vi) Payment. Any and all amounts determined from time to
time to be owed by GCM, or Xxxxx to the Investor or LIV by reason of their
indemnity obligations under this Section 7, shall be paid upon demand, in cash.
(vii) Disagreements. At any time during the indemnification
period set forth in this Section 7, if a disagreement arises between each or all
of the Company, Xxxxx and the Investor regarding any amount owed by the
Predecessors, GCM or Xxxxx due to their indemnity obligations under this Section
7, the parties will submit such disagreement to arbitration pursuant to Section
9.3 hereof.
(viii) Sole Remedy. Each party's sole remedy for inaccuracy of
any representation or warranty or breach of any covenant or agreement in this
Agreement by the other party or in any certificate delivered hereunder shall be
limited to the indemnification set forth in Section 7 hereof (except if the
claim arises out of fraud of any party).
7.4 General Provisions and Limitations. All other provisions in this
Section 7 notwithstanding, any GCM's and Xxxxx'x obligations to make
indemnification payments to the Investor shall be subject to all of the
following limitations:
(a) No claim shall be made under Section 7 unless the
aggregate amount of the claim exceeds US$100,000 (One Hundred Thousand Dollars),
and only for the portion in excess of said amount.
(b) No claim shall be made under section 7 for consequential
or punitive damages.
(c) The limitations set forth in this section 7 shall not
apply to Claims arising out of fraud by any party.
(d) The obligations of GCM and Xxxxx to indemnify LIV and/or
the Investor shall not exceed individually or in the aggregate the amount
actually contributed by the Investor and/or LIV to the Company pursuant to this
Agreement, less US$100,000.
8. Miscellaneous.
8.1 Successors. The terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective successors of the
parties (including transferees of any securities). Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
8.2 Governing Law. This Agreement shall be governed by and construed
under the laws of Mexico.
8.3 Arbitration. If a dispute arises out of or relates to this
Agreement, or the breach thereof, and if said dispute cannot be settled through
direct discussions, the parties agree to first endeavor to settle the dispute in
an amicable manner by mediation administered by the American Arbitration
Association under its then prevailing Commercial Mediation Rules, before
resorting to arbitration. Thereafter, any unresolved controversy or claim
arising out of or relating to this Agreement, or the breach thereof, shall be
settled by arbitration carried out by three (3) arbitrators designated as
hereinafter provided, and administered by the American Arbitration Association
in accordance with its then prevailing Commercial Arbitration Rules. Each of
Seller and Purchaser shall designate one (1) arbitrator. The two (2) arbitrators
so designated shall select the third (3rd) arbitrator. In the event that such
two (2) arbitrators are unable to agree upon a third (3rd) arbitrator within a
reasonable period of time, such arbitrator shall be selected by the American
Arbitration Association. The arbitration must take place in Mexico City, Mexico
in English, and the arbitrators must settle the controversy in strict compliance
with the law. The arbitrators' decision shall be binding on the parties, and
will not be appealable.
8.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.5 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
8.6 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given (a) upon personal delivery to the party to be notified; or (b)
by recognized overnight courier service or by facsimile transmission, upon
receipt of confirmation and addressed to the party to be notified at the address
indicated for such party on the signature page hereof, or at such other address
as such party may designate by ten (10) days' advance written notice to the
other parties. Copies of any notice to the Investor shall be delivered to
Xxxxxxxx & Worcester LLP, Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
attention: Xxxxxx X. Xxxxxxx and copies of any notice to GCM shall be delivered
to Xxxx y Landerreche, S.C., Bosque de Duraznos 00-000, Xxxxxxx xx xxx Xxxxx,
00000 Xxxxxx, D.F., attention: Xxxx Landerreche .
8.7 Finder's Fee. Except as set forth in Section 8.7 of the Schedule
of Exceptions, each party represents that it neither is nor will be obligated
for any finders' fee or commission, issuance of capital stock or any other form
of consideration in connection with this transaction. Each party agrees to
indemnify and to hold harmless the other from any liability for any commission
or compensation in the nature of a finders' fee, issuance of capital stock or
any other form of consideration (and the costs and expenses of defending against
such liability or asserted liability) for which each party or any of its
members, managers, employees, officers, directors or representatives is
responsible.
8.8 Expenses. Irrespective of whether the Closing is effected, each
party hereof shall pay all costs and expenses that it incurs with respect to the
negotiation, execution, delivery and performance of this Agreement.
8.9 Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of all the parties hereto.
8.10 Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
8.11 Entire Agreement. This Agreement and the documents referred to
herein constitute the entire agreement among the parties and no party shall be
liable or bound to any other party in any manner by any warranties,
representations, or covenants except as specifically set forth herein or
therein.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
LIV
LoJack de Mexico, S. de X.X. de C.V.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name Xxxxxxx X. Xxxxxx
Its : Attorney-in-Fact
Address: Xxxx Xxxxx, Xxxxxxx Xxxxxx,
Xxxxxxxx Y Xxxxx
Corporative Punta Santa Xx Xxxxx
"B" Xxxx.Xxxxx xx xx Xxxxxxx Xx.
0000 Xxxx 0 Col.Desarrollo Santa
Fe, 01109 Mexico, D.F.
GCM
Grupo Car Mart, S.A. de C.V.
By: /s/ Xxxx Xxxxxxx Xxxxx Xxxxxxxxx
---------------------------------
Name Xxxx Xxxxxxx Xxxxx Xxxxxxxxx
Its: Attorney-in-Fact
Address:
XXXX XXXXXXX XXXXX XXXXXXXXX
By: /s/ Xxxx Xxxxxxx Xxxxx Xxxxxxxxx
---------------------------------
Address: Xxxxxxxxx Xxxxx No. 304
Col. Xxxxxxx, Delegacion Xxxxxx
Xxxxxxx
00000 Xxxxxx, D.F.
The following schedule and exhibits and schedules have been omitted and will be
supplementally furnished to the Securities and Exchange Commission upon request
SCHEDULE A Schedule of Exceptions
EXHIBIT A Shareholders' Resolutions to be adopted by the shareholders
of the Company at Closing
EXHIBIT B By-laws of the Company
EXHIBIT C List of Officers, Board Members and Auditors to be appointed
by the Company at Closing
EXHIBIT D Shareholders' Resolutions to be adopted by the shareholders
of each of the Predecessors at Closing
EXHIBIT E By-laws of each of the Predecessors
EXHIBIT F List of Officers, Board Members and Auditors to be appointed
by each of the Predecessors at Closing
EXHIBIT G Form of Invention and Non-Disclosure Agreements and of
Non-Competition and Non-Solicitation Agreements
