EXHIBIT 10.34
INTANGIBLE ASSET PURCHASE AGREEMENT
DATED AS OF JANUARY 25, 2003
BETWEEN
▇▇▇▇▇▇ ▇▇▇▇▇ PACHUR ▇▇▇▇▇▇▇ AND
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ DE ▇▇▇▇ ▇▇▇▇▇
AND
HOME INTERIORS & GIFTS, INC.
TABLE OF CONTENTS
Page No.
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ARTICLE 1 PURCHASE OF ASSETS......................................................................................1
SECTION 1.1 PURCHASE AND SALE OF ASSETS...............................................................1
(a) Customers and Accounts.............................................................................1
(b) Books and Records..................................................................................1
(c) Insurance Proceeds; Warranty Rights................................................................1
(d) Scheduled Contracts................................................................................1
(e) Intellectual Property..............................................................................2
(f) Software Licenses..................................................................................2
(g) Permits............................................................................................2
(h) Goodwill...........................................................................................2
SECTION 1.2 PURCHASE PRICE............................................................................2
SECTION 1.3 DEFERRED PAYMENTS.........................................................................2
SECTION 1.4 LIABILITIES...............................................................................3
SECTION 1.5 GROSS SALES STATEMENT.....................................................................4
SECTION 1.6 SPECIFIC TRANSFERS........................................................................4
(a) Acknowledgements and Files.........................................................................4
(b) Trademarks.........................................................................................4
(c) Scheduled Contracts................................................................................4
ARTICLE 2 CLOSING.................................................................................................5
SECTION 2.1 CLOSING...................................................................................5
SECTION 2.2 TRANSFER OF ASSETS; PAYMENT...............................................................5
SECTION 2.3 CLOSING DOCUMENTS.........................................................................5
ARTICLE 3 REPRESENTATIONS AND WARRANTIES..........................................................................6
SECTION 3.1 REPRESENTATIONS AND WARRANTIES OF SELLER..................................................6
(a) Authority; Noncontravention........................................................................6
(b) Title to Properties; Liens.........................................................................6
(c) Customers and Suppliers............................................................................6
(d) Intellectual Property..............................................................................7
(e) Product Warranties.................................................................................7
(f) Disclosure.........................................................................................7
(g) Consents and Approvals.............................................................................7
(h) Financial Statements...............................................................................8
(i) Undisclosed Liabilities............................................................................8
(j) Absence of Certain Changes or Events with respect to Sellers.......................................8
(k) Taxes..............................................................................................8
(l) Compliance with Environmental Laws.................................................................9
(m) Transactions With Related Parties..................................................................9
SECTION 3.2 REPRESENTATIONS AND WARRANTIES OF HIG.....................................................9
(a) Organization, Standing and Corporation Power of HIG...............................................10
(b) Authority; Noncontravention.......................................................................10
ARTICLE 4 ADDITIONAL AGREEMENTS..................................................................................10
SECTION 4.1 REASONABLE EFFORTS; NOTIFICATION.........................................................10
SECTION 4.2 FEES AND EXPENSES; TAXES.................................................................11
SECTION 4.3 AGREEMENTS CONCERNING THE OPERATIONS AFTER CLOSING.......................................11
(a) Scheduled Contracts...............................................................................11
(b) Notifications and Customers Transfers.............................................................11
(c) Transfer of Assets and Rights, as well as Business Operation......................................11
SECTION 4.4 MAINTENANCE OF EXISTENCE.................................................................11
SECTION 4.5 ENVIRONMENTAL............................................................................12
SECTION 4.6 INFORMATION FOR TAX RETURNS..............................................................12
ARTICLE 5 CONDITIONS PRECEDENT...................................................................................12
SECTION 5.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE CLOSING..............................12
(a) Authorizations, Consents, and Approvals...........................................................12
(b) No Injunctions or Restraints......................................................................12
(c) Asset Purchase Agreement..........................................................................12
SECTION 5.2 CONDITIONS TO OBLIGATIONS OF HIG.........................................................12
(a) Representations and Warranties....................................................................12
(b) Performance of Obligations of Seller..............................................................13
(c) Opinion of Counsel................................................................................13
(d) Delivery of Notarial Instruments and Invoices.....................................................13
SECTION 5.3 CONDITIONS TO OBLIGATIONS OF SELLER......................................................13
(a) Representations and Warranties....................................................................13
(b) Performance of Obligations of HIG.................................................................13
SECTION 5.4 FRUSTRATION OF CLOSING CONDITIONS........................................................13
ARTICLE 6 TERMINATION, AMENDMENT AND WAIVER......................................................................13
SECTION 6.1 TERMINATION..............................................................................13
SECTION 6.2 EFFECT OF TERMINATION....................................................................14
SECTION 6.3 AMENDMENT................................................................................14
SECTION 6.4 EXTENSION: WAIVER........................................................................14
ARTICLE 7 INDEMNIFICATION........................................................................................14
SECTION 7.1 INDEMNIFICATION..........................................................................14
(a) By Seller.........................................................................................14
(b) By HIG............................................................................................15
(c) Direct Liability..................................................................................15
(d) Third Party Claim.................................................................................15
SECTION 7.2 RIGHT TO SET-OFF.........................................................................16
ARTICLE 8 GENERAL PROVISIONS.....................................................................................16
SECTION 8.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS....................................16
SECTION 8.2 NOTICES..................................................................................16
SECTION 8.3 DEFINITIONS..............................................................................18
SECTION 8.4 INTERPRETATION; GOVERNING LANGUAGE.......................................................19
SECTION 8.5 COUNTERPARTS; FACSIMILES.................................................................19
SECTION 8.6 ENTIRE AGREEMENT: NO THIRD PARTY BENEFICIARIES...........................................20
SECTION 8.7 GOVERNING LAW............................................................................20
SECTION 8.8 ASSIGNMENT...............................................................................20
SECTION 8.9 ENFORCEMENT..............................................................................20
SECTION 8.10 EXHIBITS AND SCHEDULES...................................................................20
SECTION 8.11 ARBITRATION..............................................................................21
SECTION 8.12 CURRENCY AND PAYMENT.....................................................................21
SECTION 8.13 CONFIDENTIALITY..........................................................................21
EXHIBITS
Exhibit "A" - Employment Agreement
Exhibit "B" - Noncompetition Agreement
Exhibit "C" - Opinion of Counsel for Seller
SCHEDULES
Schedule 1.1(a) - Customers and Accounts
Schedule 1.1(d) - Scheduled Contracts
Schedule 1.1(f) - Software Licenses
Schedule 1.1(g) - Permits
Schedule 1.6(c) - Scheduled Contracts
Schedule 3.1(c) - Customers and Suppliers
Schedule 3.1(d) - Intellectual Property
Schedule 3.1(e) - Product Warranties
Schedule 3.1(g) - Consents and Approvals
Schedule 3.1(h) - Financial Statements
Schedule 3.1(j) - Absence of Certain Changes or Events
Schedule 3.1(m) - Transactions with Related Parties
Schedule 4.3(b) - Tempus and Bulco Customers Catalog
INTANGIBLE ASSET PURCHASE AGREEMENT
THIS
INTANGIBLE ASSET PURCHASE AGREEMENT (this "Agreement") is made as
of January 25, 2003, by and among ▇▇▇▇▇▇ ▇▇▇▇▇ PACHUR ▇▇▇▇▇▇▇ ("Pachur") and
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ DE ▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇") and HOME INTERIORS & GIFTS, INC., a
Texas
corporation ("HIG"). Pachur and ▇▇▇▇, are sometimes collectively referred to as
"Seller." Other capitalized terms used in this Agreement are defined or
cross-referenced to the applicable definition in Section 8.3 of this Agreement.
ARTICLE 1
PURCHASE OF ASSETS
SECTION 1.1 Purchase and Sale of Assets. Upon the terms and subject to
the conditions set forth in this Agreement, Seller shall sell to HIG at Closing,
all of the intangible assets that were or have been used or held for use by or
on behalf of Bulco, S.A. de C.V., a Mexican corporation ("Bulco"), and/or Tempus
Corporation, S.A. de C.V., a Mexican corporation ("Tempus"), in connection with
their metal, ceramics and glass design, fabrication, manufacturing and sales
businesses and all activities related thereto (the "Business"), free and clear
of all Liens, other than the Bancomext Liens as defined in that certain Asset
Purchase Agreement, dated January 25, 2003 among Sellers, HI Metals and Tempus
(the "Asset Purchase Agreement"), which shall be released after Closing as
contemplated by Section 3.2 of the Asset Purchase Agreement, including, without
limitation, the following assets (collectively, the "Intangible Assets"), which
Intangible Assets were acquired by Seller from Bulco and Tempus immediately
prior to the execution and consummation of this Agreement:
(a) Customers and Accounts. All past and current customers and
accounts of the Business, including, without limitation, those customers and
accounts listed on Schedule 1.1(a) hereto;
(b) Books and Records. Except for the accounting and financial
records of Tempus and Bulco (the "Accounting and Financial Records"), all books,
records, computer records, ledgers, files, documents, correspondence, lists,
plats, architectural plans, drawings and specifications, creative materials,
advertising and promotional materials, studies, reports, and other printed or
written materials relating to the Business;
(c) Insurance Proceeds; Warranty Rights. All insurance
proceeds and insurance claims relating to the Business or all or any part of the
tangible assets of the Business and, to the extent transferable, the benefit of
and the right to enforce the covenants and warranties, if any, that Seller is
entitled to enforce with respect to the Business or all or any part of the
tangible assets of the Business against Seller's predecessors in title to the
tangible assets of the Business.
(d) Scheduled Contracts. The contracts and agreements
described on Schedule 1.1(d) hereto (the "Scheduled Contracts") and all rights
(including right of refund and offset), privileges, deposits, sums of money due,
claims, causes of action and options relating or pertaining to the Scheduled
Contracts or any thereof.
INTANGIBLE ASSET PURCHASE AGREEMENT - PAGE 1
(e) Intellectual Property. All copyrights, trademarks, trade
secrets, trade names, telephone numbers, data, service marks, licenses,
franchises, distributorships, labels, logos, covenants by others not to compete,
rights, privileges and any registrations or applications for registrations of
the foregoing, and any right to recovery for infringement thereof (including
past infringement) and any and all goodwill associated therewith or connected
with the use thereof and symbolized thereby (the "Intellectual Property").
(f) Software Licenses. All software licenses, descriptions of
which are attached as Schedule 1.1(f) hereto.
(g) Permits. All Permits, copies of which are attached to
Schedule 1.1(g) hereto.
(h) Goodwill. All goodwill of the Business.
SECTION 1.2 Purchase Price. Subject to the terms and conditions of this
Agreement, in consideration for HIG's acquisition of the Intangible Assets, HIG
shall pay to Seller deferred payments in an aggregate amount not in excess of
Two Million Five Hundred Fifty Thousand and NO/00 Dollars (U.S.$2,550,000.00),
pursuant to Section 1.3 below (the "Purchase Price"). Each installment of the
Purchase Price shall be paid ninety-five percent (95%) to Pachur and five
percent (5%) to ▇▇▇▇.
SECTION 1.3 Deferred Payments.(a) Subject to Section 7.2 below, if the
Gross Sales (hereinafter defined) derived by HI Metals, S.A. de C.V., a Mexico
corporation ("HI Metals") or other HIG Affiliates, (such Affiliates including,
without limitation, HI Ceramics, S.A. de C.V. and ▇▇▇▇▇▇ ▇▇▇▇▇ & Associates,
Inc.) from the metal, glass and ceramics manufacturing and fabricating
facilities of the Business existing either on or after the date hereof
(collectively, the "Facilities") for the calendar year ending December 31, 2003
is greater than the sum of U.S. $25,000,000.00, HIG will make a payment of U.S.
$850,000.00 to Seller within ninety (90) days following December 31, 2003.
Subject to Section 7.2 below, if the Gross Sales derived from the Facilities for
the calendar year ending December 31, 2004 is greater than the sum of U.S.
$45,000,000.00, HIG will make a payment of U.S. $850,000.00 to Seller within
ninety (90) days following December 31, 2004. Subject to Section 7.2 below, if
the Gross Sales derived from the Facilities for the calendar year ending
December 31, 2005 is greater than the sum of U.S. $50,000,000.00, HIG shall make
a cash payment of U.S. $850,000.00 to Seller within ninety (90) days following
December 31, 2005. For purposes of this Agreement, the term "Gross Sales" shall
mean gross revenue exclusive of taxes, shipping and other charges, other than
the wholesale price of the finished goods being sold, which price, for purposes
of this Section 1.3, shall not be deemed to be less than the sum of the cost of
the goods sold plus 30%. All aspects of the calculation of Gross Sales will be
in accordance with U.S. GAAP. Notwithstanding the foregoing provisions of this
Section 1.3, (a) if the $25,000,000.00, $45,000,000.00 or $50,000,000.00 Gross
Sales thresholds are not achieved for any of the 2003, 2004 or 2005 calendar
years, HIG shall nevertheless make the following payments to Seller if at least
the corresponding percentage of such threshold is achieved:
INTANGIBLE ASSET PURCHASE AGREEMENT - PAGE 2
Percentage of Threshold Achieved Amount of Payment
-------------------------------- -----------------
70% $425,000.00
85% $637,500.00;
(b) A Stockholder shall not be entitled to receive his portion (i.e. 95% in the
case of Pachur and 5% in the case of ▇▇▇▇) of any of the payments pursuant to
Section 1.3(a) after the occurrence of any of the following events: (i) if he
shall resign as an employee of HI Services de Mexico, S.A. de C.V. ("HI
Services") or of such other HIG Affiliate by whom he may later be employed, or
(ii) if HI Services terminates his employment For Cause (hereinafter defined).
It is understood that the resignation by or termination For Cause of one Seller
shall not effect the right of the other Seller to any payment under Section
1.3(a) to which he is entitled, provided that the Gross Revenue standards
required for such payment are satisfied. Further, the death or disability
(pursuant to the definition of disability set forth in the Federal Labor Law and
Social Security Law) of a Seller shall not effect the right of such Seller or
Seller's heirs to payments under Section 1.3(a), provided that the Gross Revenue
standards required for such payment are satisfied. For purposes of this
Agreement, the term "For Cause" means: (i) a Seller's breach of this Agreement
or any other document, agreement or contract to which such Seller and HIG, HI
Services or another HIG Affiliate are a party, which is not remedied within
thirty (30) days after the giving of written notice specifying such breach; (ii)
a Seller's intentional failure to adhere to any written policy of HI Services
(or such other HIG Affiliate by whom he may later be employed), which is not
remedied within thirty (30) days after the giving of written notice by the
employer specifying such failure; (iii) a Seller's appropriation (or attempted
appropriation) of a material business opportunity of HI Services or another of
HIG's Affiliates, including, without limitation, attempting to secure or
securing, any personal profit in connection with any transaction entered into on
behalf of HI Services or another of HIG's Affiliates; (iv) a Seller's commission
of (or attempt to commit) an act of fraud, illegality, theft or willful
misconduct toward HI Services or another of HIG's Affiliates; (v) a Seller's
conviction of, the indictment for (or its procedural equivalent), or the
entering of a guilty plea or plea of no contest or deferred adjudication with
respect to, a felony, the equivalent thereof, or any other crime with respect to
which imprisonment is a possible punishment; (vi) a Seller's absence from his
duties without the consent of the President of HI Services (or such other HIG
Affiliate by whom he may later be employed) for more than ten (10) consecutive
business days for reasons other than vacation authorized under this Agreement,
illness or injury; or (vii) the intentional failure of a Seller to carry out, or
comply with, in any material respect any directive of the President or Board of
Directors of HI Services (or such other HIG Affiliate by whom he may later be
employed) which is not remedied within thirty (30) days after receipt of written
notice from the employer specifying such failure.
SECTION 1.4 Liabilities. In connection with the purchase of the
Acquired Assets, and subject to and upon all the terms and condition of this
Agreement, at Closing, HIG shall not assume or agree to pay, perform and
discharge any liabilities or obligations of Bulco or Tempus. HIG is not
assuming, and shall have no liability for, and Seller agrees that Bulco and
Tempus have retained and are solely responsible for, the payment, performance,
and discharge of all liabilities of Bulco and Tempus, whether accrued, absolute,
contingent or otherwise (collectively, the "Retained Liabilities").Seller shall
indemnify and hold HIG harmless from and against the Retained Liabilities.
INTANGIBLE ASSET PURCHASE AGREEMENT - PAGE 3
SECTION 1.5 Gross Sales Statement. Within thirty (30) days after the
expiration of each of the 2003, 2004 and 2005 calendar years, HIG shall deliver
to Seller a written statement (the "Gross Sales Statement") setting forth the
Gross Sales derived from the Facilities for the subject calendar year, and such
supporting information as shall be reasonably necessary for Seller to confirm
such Gross Sales. The Gross Sales shall be certified by the Chief Financial
Officer of HIG to the effect that such statement reflects the Gross Sales
derived from the Facilities for the subject calendar year and that such Gross
Sales were determined consistent with U.S. GAAP. Within fifteen (15) days after
its receipt of the Gross Sales, Seller shall deliver to the Chief Financial
Officer of HIG a written acceptance of the Gross Sales reflected thereon or a
written notice that Seller desires to review the books and records related to
Gross Sales for such period. Seller shall complete any such requested review
within sixty (60) days after his receipt of the Gross Sales Statement. To the
extent that any such review indicates that the Gross Sales reflected on the
Gross Sales Statement were inaccurate, the Gross Sales shall be increased or
decreased, as the case may be. If HIG and Seller are unable to resolve any
dispute concerning the Gross Sales through the procedure outlined above, such
unresolved dispute shall be submitted for further determination to a regionally
recognized accounting firm located in the United States to be mutually selected
by HIG and Seller, and the determination by such accounting firm shall be made
within ninety (90) days following the submission to them of such dispute and
such determination shall be binding upon Seller and HIG. If HIG and Seller
cannot mutually agree upon such accounting firm, HIG shall select an independent
internationally recognized accounting firm that has not provided services to HIG
or its Affiliates during the previous five (5) year period. Seller and HIG shall
each bear fifty percent (50%) of the fees and expenses of such accounting firm
resolving such dispute.
SECTION 1.6 Specific Transfers. Without limitation to the general
transfers and assignments described in Section 1.1, Seller hereby transfers and
assigns to HIG the following intangible rights of Seller:
(a) Acknowledgements and Files. All the necessary
acknowledgements and documents stored at calle Lerdo ▇▇ ▇▇▇▇▇▇ # 749, Predio El
Lechugal, Santa Catarina, Nuevo ▇▇▇▇, and in general all the documents owned by
them and including all the books, records, computer files, expedients,
documents, mailing lists, drawings, architectural sketches, specifications,
advertising materials and promotional material, studies, reports, and other
printed or written materials concerning the Business, Tempus or Bulco, and in
general all the files and paperwork other than accounting records stored at such
address, and any other document or information useful to HIG or its Affiliates
in the management and operation of the Business .
(b) Trademarks. All the Intellectual Property rights
corresponding to trademarks "Timeless Reflections" and "Ole".
(c) Scheduled Contracts. All the rights of Bulco and Tempus
arising under the Scheduled Contracts described in Schedule 1.6(c), including,
without limitation, rights of refund and compensation, privileges, deposits,
claims, causes of action and option related to or belonging to the Scheduled
Contracts or any one of them.
INTANGIBLE ASSET PURCHASE AGREEMENT - PAGE 4
ARTICLE 2
CLOSING
SECTION 2.1 Closing. The closing of the purchase and sale of the
Intangible Assets (the "Closing") will take place on or before January 31, 2003
(the "Closing Date"), at the offices of ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, unless another date or
place is agreed to in writing by the parties hereto.
SECTION 2.2 Transfer of Assets; Payment. At the Closing, Seller shall
do and take all steps reasonable and necessary to transfer, assign and convey to
HIG all of the right, title and interest in and to the Intangible Assets, free
and clear of all Liens, other than the Bancomext Liens, which shall be released
after Closing as contemplated by Section 3.2 of the Asset Purchase Agreement.
SECTION 2.3 Closing Documents. At the Closing, Seller, as appropriate,
shall deliver, or cause to be delivered, the following items:
(a) Schedules to this Agreement that are in form and substance
satisfactory to HIG.
(b) The Employment Agreement in substantially the form
attached hereto as Exhibit "A", executed by Pachur.
(c) The Noncompetition Agreement in substantially the form
attached hereto as Exhibit "B", executed by ▇▇▇▇▇▇, ▇▇▇▇, Bulco and
Tempus.
(d) Any documents, certificates of title, endorsements,
assignments and instruments in form and substance satisfactory to HIG
and its legal counsel, as shall be necessary, advisable or desirable to
vest in HIG good and marketable title to the Intangible Assets free and
clear of all Liens;
(e) Documents, in form and substance reasonably satisfactory
to HIG, evidencing the assignment and transfer of the Intangible Assets
from Bulco and Tempus to Seller; and
(f) The Bancomext Authorization (as defined in the Asset
Purchase Agreement);
(g) Duly notarized power of attorney for Pachur to represent
de ▇▇▇▇ in the execution, delivery and performance of this Agreement
and the Ancillary Documents in Dallas,
Texas, U.S.A. granted by de
▇▇▇▇; and
(h) Copies of all consents, authorizations, orders or
approvals of and filings or registrations with, and any permits,
licenses or other authorizations required by, any third party or
applicable Governmental Entity that are required for, or in connection
with, the execution and delivery of this Agreement by Seller, the
registration of HIG's rights in the Intangible Property and the
consummation by Seller of the transactions contemplated herein.
INTANGIBLE ASSET PURCHASE AGREEMENT - PAGE 5
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties of Seller. As an inducement
to HIG to enter into this Agreement and to consummate the transactions
contemplated hereby, Seller, and each of them, hereby jointly and severally
represents and warrants to HIG that the following statements are true and
correct as of the date of this Agreement and will be true and correct with equal
force and effect as of the Closing Date.
(a) Authority; Noncontravention. Seller has the requisite
power and authority to enter into this Agreement and the other documents,
contracts, agreements and instruments executed and delivered in connection with
this Agreement or otherwise contemplated hereunder (the "Ancillary Documents")
and to consummate the transactions contemplated by this Agreement and the
Ancillary Documents. This Agreement and the Ancillary Documents have been duly
executed and delivered by Seller and constitute a valid and binding obligation
of Seller, enforceable against Seller in accordance with their respective terms.
The execution and delivery of this Agreement and the Ancillary Documents do not,
and the consummation of the transactions contemplated by this Agreement and the
Ancillary Documents and compliance with the provisions of this Agreement and the
Ancillary Documents will not, conflict with, or result in any violation of, or
default (with or without notice or lapse of time, or both) under, or give rise
to a right of termination, cancellation or acceleration of any obligation or to
the loss of any benefit under, or result in the creation of any Liens upon, any
of the properties or assets of Seller under (i) any loan or credit agreement,
note, bond, mortgage, indenture, lease or other agreement, instrument, permit,
concession, franchise or license applicable to Seller or his properties or
assets, or (ii) any judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to Seller or the Intangible Assets. No consent, approval,
order or authorization of, or registration, declaration or filing with, any
Governmental Entity, is required in connection with the execution and delivery
of this Agreement and the Ancillary Documents by Seller or the consummation by
Seller of the transactions contemplated by this Agreement and the Ancillary
Documents.
(b) Title to Properties; Liens. Seller has good title to all
of the Intangible Assets. All of the Intangible Assets are free and clear of all
Liens. Upon consummation of the transactions proposed herein, HIG will own the
Intangible Assets free and clear of all Liens. The Intangible Assets constitute
all of the intangible assets and properties that are used or useable in the
conduct of the Business as presently being conducted, or as currently
contemplated to be conducted in the future. None of the Intangible Assets are
required to be registered with any Mexican Public Registry. Additionally, none
of the Intangible Assets are subject to any Mexican governmental program, such
as Pitex or maquila, that could limit the transferability of the Intangible
Assets.
(c) Customers and Suppliers. Schedule 3.1(c) sets forth a list
of names and addresses of all customers and all suppliers of the Business. There
exists no actual termination or cancellation of any business relationship of the
Business with any customer or group of customers or with any supplier or group
of suppliers listed therein with respect to which the Business has received
written or oral notice of such termination or cancellation, as the case may be.
INTANGIBLE ASSET PURCHASE AGREEMENT - PAGE 6
(d) Intellectual Property. Seller owns, or has validly
licensed or otherwise has the right to use, all patents, patent rights,
trademarks, trademark rights, trade names, trade name rights, service marks,
service ▇▇▇▇ rights, copyrights and other proprietary intellectual property
rights and computer programs comprising the Intellectual Property. Schedule
3.1(d) hereto sets forth a description of all Intellectual Property of the
Business, Bulco and Tempus. No claims are pending or, to the Knowledge of
Seller, threatened that the Intellectual Property infringes or otherwise
adversely affects the rights of any person with regard to such Intellectual
Property. To the Knowledge of Seller, no person is infringing the rights of
Seller with respect to any Intellectual Property.
(e) Product Warranties. Schedule 3.1(e) hereto contains the
forms of express warranties and guaranties which have been used by Bulco and
Tempus in the Business. Except as set forth on Schedule 3.1(e) hereto, the
Business has not offered any different forms of express product warranties and
guaranties. No events have occurred or facts exist which could result in an
increase to Seller' warranty expenses.
(f) Disclosure.
(A) Seller has delivered or made available
to HIG complete and accurate copies of all documents
listed on the schedules delivered as a part hereof
and all other information requested by HIG pursuant
hereto. No representation or warranty of Seller
contained in this Agreement or any statement in the
Schedules hereto contains any untrue statement. No
representation or warranty of Seller contained in
this Agreement or statement in the Schedules hereto
omits to state a material fact necessary in order to
make the statements herein or therein, in light of
the circumstances under which they were made, not
misleading.
(B) There is no fact known to Seller which
has specific application to the HIG and which could
have a Material Adverse Effect on Bulco or Tempus,
but which has not been set forth in this Agreement or
the Schedules hereto.
(C) The disclosures in the Schedules hereto
shall relate only to the representations and
warranties in the Section of this Agreement to which
they expressly relate and to no other representation
or warranty in this Agreement.
(D) In the event of any inconsistency
between the statements in the body of this Agreement
and those in the Schedules hereto (other than an
exception expressly set forth as such in the
Schedules in relation to a specifically identified
representation or warranty), those in this Agreement
shall control.
(g) Consents and Approvals. Except as set forth in Schedule
3.1(g), the execution, delivery and performance by Seller of this Agreement and
the Ancillary Documents and the consummation of such transactions by Seller
requires no consent, approval, order or
INTANGIBLE ASSET PURCHASE AGREEMENT - PAGE 7
authorization of, action by or in respect of, or registration or filing with,
any Governmental Entity or other Person, except for consents, the failure of
which to obtain could not reasonably be expected to have a Material Adverse
Effect.
(h) Financial Statements. Schedule 3.1(h) contains all audited
financial statements of Bulco and Tempus for the years ending December 31, 1999,
2000, 2001 and 2002, if available (collectively, the "Financial Statements").
The Financial Statements have been prepared in conformity with Mexican GAAP, and
present fairly, in all material respects, the financial position of and results
of operations, changes in Stockholders' equity and cash flows of Bulco and
Tempus as of and for the periods then ended. The unaudited financial statements
and reports provided by Seller or its Affiliates to HIG for the year ending
December 31, 2002, are true and correct in all material respects.
(i) Undisclosed Liabilities. Except (i) as disclosed,
reflected or reserved against in the Financial Statements, or (ii) for
liabilities and obligations incurred in the ordinary course of business
consistent with past practices since the date of the Financial Statements,
neither Bulco nor Tempus has any liabilities or obligations of any nature
(whether accrued, absolute, contingent or otherwise) required by Mexican GAAP to
be set forth on the Financial Statements.
(j) Absence of Certain Changes or Events with respect to
Sellers. Except as set forth in Schedule 3.1(j) hereto, since ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇,
▇▇▇▇▇ and Tempus have conducted their business in the ordinary course, and there
has not been (i) any Material Adverse Change in or to Bulco or Tempus, (ii) any
debt incurred or assumed (other than accounts payable in the ordinary course of
business consistent with past practices), (iii) any granting by Bulco or Tempus
to any employee of Bulco or Tempus of any increase in compensation, except
increases not in excess of five percent (5%) for all employees in the aggregate
in any calendar year, made in the ordinary course of business consistent with
prior practice, or any granting by Sellers to any employee of any severance or
termination pay, (iv) any damage, destruction or loss, whether or not covered by
insurance, that has or could reasonably be expected to have a Material Adverse
Effect, (v) any change in accounting methods, principles or practices by
Sellers, materially affecting their assets, liabilities or business, except
insofar as any have been required by a change in Mexican GAAP, (vi) any
acquisition of real property or undertaking or commitment to undertake capital
expenditures exceeding $25,000.00 in the aggregate, (vii) any cancellation of
any debts owed to or claims held by Bulco or Tempus, other than in the ordinary
course of business consistent with past practices, or (viii) any sale, lease,
transfer or other disposition of, or mortgage, pledge or creation of any
encumbrance on any assets of Bulco or Tempus.
(k) Taxes. All Taxes that are due and payable by Seller which
could create a Lien on the Intangible Assets, other than those presently payable
without penalty or interest, have been timely paid, and Seller has timely filed
(and, through the Closing Date, will timely file) all Tax reports and returns
required by law to be filed by Seller. All such Tax reports and returns are
true, complete and correct in all respects with regard to Seller for the periods
covered thereby. Seller is not delinquent in the payment of any Tax. There is no
Tax deficiency asserted against Seller, and there is no unpaid assessment,
proposal for additional Taxes, deficiency or delinquency in the payment of any
of the Taxes of Seller or any violation of any Tax law that could be asserted by
any
INTANGIBLE ASSET PURCHASE AGREEMENT - PAGE 8
taxing authority. There are no Tax Liens upon any properties or assets of Seller
nor has notice been given of any event which could lead to any such Lien.
(l) Compliance with Environmental Laws. Bulco and Tempus have
in effect all Permits necessary for them to own, lease or operate their
properties and assets and to carry on the Business substantially as now
conducted, and there has occurred no default under any such Permit. Bulco and
Tempus are and have been in compliance with all applicable statutes, laws,
ordinances, regulations, rules, judgments, decrees or orders of any Governmental
Entity.
(i) Bulco and Tempus have not received any written
communication from a Governmental Entity alleging that Bulco
and Tempus are, or the Business' Santa Catarina facility is
not, in compliance in any material respect with, or have
liability under, any Environmental Laws. Bulco and Tempus
hold, and have complied with and are in compliance with, all
Permits required for Bulco and Tempus to conduct the Business
under Environmental Laws, and Bulco and Tempus are, and the
Santa Catarina Facility is, in compliance with all
Environmental Laws.
(ii) Bulco and Tempus have not at any time
maintained, and will not maintain from this date to Closing,
any Hazardous Materials within the Business' Santa Catarina
facility or their other property, which could affect the
Acquired Assets.
(iii) Bulco and Tempus have complied with and are in
compliance with all federal, state, local and foreign
statutes, laws, ordinances, regulations, rules, permits,
judgments, orders or decrees applicable to the Business and
its assets, and, to the Knowledge of the Seller, there does
not exist any basis for any claim or default under or
violation of any such statute, law, ordinance, regulation,
rule, judgment, order or decree.
(m) Transactions With Related Parties. Except as set forth on
Schedule 3.1(m), neither the Seller, nor any spouse, child, parent, sibling or
any other person or entity closely related to or affiliated with the Seller, as
the case may be, nor any employee, officer or director of Tempus or Bulco (i)
owns any equity interest, directly or indirectly in, or is an officer or
director of, any proprietorship, firm, company, corporation, partnership or
other entity which: (a) is a competitor of Tempus or Bulco; (b) is a customer or
supplier of Tempus or Bulco; or (c) has any contractual or business relationship
whatsoever with (i) Tempus or Bulco; provided that the foregoing does not apply
to the ownership by any of them of not more than five percent (5%) of any
outstanding security (or any class thereof) of any corporation or partnership
listed on a United States or Mexican securities exchange or traded
over-the-counter; or (ii) has or claims to have any direct or indirect interest
in any tangible or intangible property of Tempus or Bulco, except with respect
to the Seller as holders of common stock of Tempus or Bulco.
SECTION 3.2 Representations and Warranties of HIG. HIG hereby
represents and warrants to Seller that the following statements are true and
correct as of the date of this Agreement and will be true and correct with equal
force and effect as of the Closing Date:
INTANGIBLE ASSET PURCHASE AGREEMENT - PAGE 9
(a) Organization, Standing and Corporation Power of HIG. HIG
is a corporation duly organized, validly existing and in good standing under the
laws of
Texas and has the requisite corporate power and authority to carry on
its business as now being conducted.
(b) Authority; Noncontravention. HIG has all requisite
corporate power and authority to enter into this Agreement and the Ancillary
Documents and to consummate the transactions contemplated by this Agreement and
the Ancillary Documents. The execution and delivery of this Agreement and the
Ancillary Documents and the consummation of the transactions contemplated by
this Agreement and the Ancillary Documents have been duly authorized by all
necessary corporate action on the part of HIG. This Agreement and the Ancillary
Documents have been duly executed and delivered by HIG and constitutes the valid
and binding obligations of HIG, enforceable against HIG in accordance with their
terms. The execution and delivery of this Agreement and the Ancillary Documents
do not, and the consummation of the transactions contemplated by this Agreement
and the Ancillary Documents and compliance with the provisions of this Agreement
and the Ancillary Documents will not, conflict with, or result in any violation
of the governing documents of HIG. No consent, approval, order or authorization
of, or registration, declaration or filing with, any Governmental Entity is
required by or with respect to HIG in connection with the execution and delivery
of this Agreement and the Ancillary Documents or the consummation by HIG of any
of the transactions contemplated by this Agreement and the Ancillary Documents.
ARTICLE 4
ADDITIONAL AGREEMENTS
SECTION 4.1 Reasonable Efforts; Notification.
(a) Upon the terms and subject to the conditions set forth in
this Agreement, the parties shall use all reasonable efforts to take,
or cause to be taken, all actions, and to do, or cause to be done, and
to assist and cooperate with the other parties in doing, all things
necessary, proper or advisable to consummate and make effective, in the
most expeditious manner reasonably practicable, the Closing, and the
other transactions contemplated by this Agreement, including (i) the
obtaining of all necessary actions or nonactions, waivers, consents and
approvals from Governmental Entities and the making of all necessary
registrations and filings (including filings with Governmental
Entities, if any) and the taking of all reasonable steps as may be
necessary to obtain an approval or waiver from, or to avoid an action
or proceeding by, any Governmental Entity, (ii) the obtaining of all
necessary consents, approvals or waivers from third parties, (iii) the
defending of any lawsuits or other legal proceedings, whether judicial
or administrative, challenging this Agreement or the consummation of
any of the transactions contemplated by this Agreement, including
seeking to have any stay or temporary restraining order entered by any
court or other Governmental Entity vacated or reversed, and (iv) the
execution and delivery of any additional instruments necessary to
consummate the transactions contemplated by, and to fully carry out the
purposes of, this Agreement.
(b) Seller shall give prompt notice to HIG, and HIG shall give
prompt notice to Seller, of (i) any representation or warranty made by
such party contained in this Agreement
INTANGIBLE ASSET PURCHASE AGREEMENT - PAGE 10
that has become untrue or inaccurate in any material respect, or (ii)
the failure by it to comply with or satisfy any covenant, condition or
agreement to be complied with or satisfied by it under this Agreement;
provided, however, that such notification shall not, in and of itself,
excuse or otherwise affect the representations, warranties, covenants
or agreements of the parties or the conditions to the obligations of
the parties under this Agreement.
SECTION 4.2 Fees and Expenses; Taxes.
(a) Except as set forth in Subsection 4.2(b):
(i) if the Closing and purchase of the Intangible
Assets are consummated, all fees and expenses (other than
duties, taxes, recordation fees and notary public fees, which
shall be split by the parties) incurred by HIG in connection
with the Closing, this Agreement and the transactions
contemplated by this Agreement (the "Expenses") shall be paid
by HIG and all Expenses incurred by Seller shall be paid by
Stockholders, and
(ii) if the Closing and purchases of the Intangible
Assets are not consummated, all Expenses shall be paid by the
party incurring such expenses.
(b) In the case of a breach of this Agreement by any party,
all reasonable fees and expenses incurred by the prevailing,
nonbreaching party or parties in connection with such breach, shall be
paid by the party breaching this Agreement.
SECTION 4.3 Agreements Concerning the Operations After Closing. The
parties agree to the following with respect to the operations of the Business
after Closing:
(a) Scheduled Contracts. Seller transfers and assigns to HIG
all contract rights with customers and suppliers that are Scheduled Contracts
existing at the time of the Closing,.
(b) Notifications and Customers Transfers. Seller transfers
and assigns to HIG the customer list of Bulco and Tempus and shall notify within
five (5) days following Closing, that new purchase orders, as well as
undelivered purchase orders, shall be made thereafter with HI Metals. and Seller
will use best efforts to inform customers in such a way that customers will be
comfortable in doing business with HIG and HIG Affiliates. The Tempus and Bulco
customer list is attached hereto as Schedule 4.3(b).
(c) Transfer of Assets and Rights, as well as Business
Operation. Seller commits to consult with personnel of HIG and HIG Affiliates
about the manufacturing operations and other business affairs of Tempus and
Bulco, in order to assist in the transfer and assignment to HIG of the control
of the Business. Seller shall spend such time at the plant located at Lerdo ▇▇
▇▇▇▇▇▇ # 749, Predio El Lechugal at Santa Catarina, Nuevo ▇▇▇▇, as reasonably
requested by HIG, in order to assist HIG in keeping such plant operating
efficiently..
SECTION 4.4 Maintenance of Existence. Tempus and Bulco shall preserve
and maintain their corporate existence under the laws of the Mexico for a period
of at least three (3) years after
INTANGIBLE ASSET PURCHASE AGREEMENT - PAGE 11
the Closing Date. Tempus and Bulco shall change their corporate names to a name
reasonably acceptable to HIG within thirty (30) days after Closing.
SECTION 4.5 Environmental. Seller agrees at their sole expense prior to
Closing to properly clean the Hazardous Materials located in the back yard
located behind Tempus warehouse No. 8 and to dispose of such Hazardous Materials
in accordance with all applicable Environmental Laws.
SECTION 4.6 Information for Tax Returns. Seller shall cooperate with
HIG after the Closing by providing HIG, promptly upon request, with access to
and copies of the Accounting and Financial Records and such other records and
information regarding the Assets and/or the business operations of Tempus and
Bulco as may reasonably be requested from time to time by HIG in connection with
the preparation or audit of its or its Affiliates federal, state and local
income and other Tax returns, and audits, disputes, refund claims or litigation
relating thereto. In such connection, Seller will afford HIG's representatives,
including independent tax advisers and others, access to books and records or
relating to such assets and operations.
ARTICLE 5
CONDITIONS PRECEDENT
SECTION 5.1 Conditions to Each Party's Obligation to Effect the
Closing. The respective obligations of each party to effect the Closing are
subject to the satisfaction, or waiver on or prior to the Closing Date of the
following conditions:
(a) Authorizations, Consents, and Approvals. Any
authorizations, consents, approvals, orders or waivers required to be obtained,
and all filings, notices or declarations required to be made with any Federal,
foreign, state or local governmental regulatory agency, shall have been obtained
or made.
(b) No Injunctions or Restraints. No temporary restraining
order, preliminary or permanent injunction or other order issued by any court of
competent jurisdiction or other legal restraint or prohibition preventing the
Closing shall be in effect; provided, however, that each of the parties shall
have used such party's reasonable efforts to prevent the entry of any such
injunction or other order and to appeal as promptly as possible any injunction
or other order that may be entered.
(c) Asset Purchase Agreement. The execution and delivery of
the Asset Purchase Agreement of even date herewith by and among Tempus, Seller
and HI Metals, S.A. de C.V. and the simultaneous closing of the transactions
described therein.
SECTION 5.2 Conditions to Obligations of HIG. The obligations of HIG to
effect the Closing and to purchase the Intangible Assets pursuant to this
Agreement shall, at the option of HIG, be subject to the satisfaction, on or
prior to the Closing Date, of the following conditions:
(a) Representations and Warranties. The representations and
warranties of Seller, set forth in this Agreement, in each case as of the date
of this Agreement, and as of the Closing Date as though made on and as of the
Closing Date, shall be true and correct, and HIG shall have received
INTANGIBLE ASSET PURCHASE AGREEMENT - PAGE 12
a certificate to such effect, signed on behalf of Seller with respect to
representations and warranties of Seller.
(b) Performance of Obligations of Seller. Seller shall have
performed all obligations required to be performed by Seller under this
Agreement and the Ancillary Documents at or prior to the Closing Date, and HIG
shall have received a certificate to such effect signed by Seller..
(c) Opinion of Counsel. HIG shall have received written
opinions, dated as of the Closing Date, from counsel for Seller substantially in
the form of Exhibit "C" hereto.
(d) Delivery of Notarial Instruments and Invoices. Subject to
the terms of this Agreement, Seller shall have delivered and shall have caused
such instruments of transfer or conveyance, and of assignment, as are reasonably
requested by HIG to vest in HIG good and marketable title to the Intangible
Assets, free and clear of all Liens, including, without limitation, a notarial
instrument, executed by a properly empowered notary public and Seller,
evidencing the transfer of the real property and invoices, executed by Seller,
evidencing the transfer of the Intangible Assets.
SECTION 5.3 Conditions to Obligations of Seller. The obligations of
Seller to effect the Closing and to transfer and convey the Intangible Assets
pursuant to this Agreement shall, at the option of Seller, be subject to the
satisfaction, on or prior to the Closing Date, of the following conditions:
(a) Representations and Warranties. The representations and
warranties of HIG set forth in this Agreement, in each case as of the date of
this Agreement, and as of the Closing Date as though made on and as of the
Closing Date, shall be true and correct, and Seller, shall have received a
certificate to such effect signed on behalf of HIG by an authorized officer of
HIG.
(b) Performance of Obligations of HIG. HIG shall have
performed all obligations required to be performed by it under this Agreement at
or prior to the Closing Date, and Seller shall have received a certificate to
such effect, signed on behalf of HIG by an authorized officer of HIG.
SECTION 5.4 Frustration of Closing Conditions. HIG and Seller may not
rely on the failure of any condition set forth in this Article 5 to be
satisfied, if such failure was caused by such party's failure to act in good
faith or to use its reasonable efforts to cause the Closing to occur.
ARTICLE 6
TERMINATION, AMENDMENT AND WAIVER
SECTION 6.1 Termination. This Agreement may be terminated at any time
prior to the Closing Date without liability:
(a) by the unanimous written consent of HIG and Seller;
INTANGIBLE ASSET PURCHASE AGREEMENT - PAGE 13
(b) by HIG or Seller if the Closing shall not have occurred on
or before March 31, 2003, unless the failure to effect the Closing is
the result of a material breach of this Agreement by the party seeking
to terminate; and
(c) by HIG or Seller:
(i) if any Governmental Entity shall have issued an
order, decree or ruling or taken any other action permanently
enjoining, restraining or otherwise prohibiting the Closing
and such order, decree, ruling or other action shall have
become final and nonappealable as long as the party seeking to
terminate is not liable for the issuance of such order,
decree, ruling or action; and
(ii) in the event of any breach by HIG, on the one
hand, or by Seller, on the other hand, of its or his
respective agreements, representations or warranties contained
herein and the failure of such party to cure such breach
within ten (10) days after receipt of notice from any other
party requesting such breach to be cured.
SECTION 6.2 Effect of Termination. In the event of termination of this
Agreement as provided in Section 6.1, this Agreement shall forthwith become void
and have no effect, without any liability or obligation on the part of any
party, other than the provisions of this Section 6.2 and Article 7. In the event
that HIG or Seller shall terminate this Agreement pursuant to Section 6.1(b) or
(c) hereof, the rights of the parties, as the case may be, to pursue any and all
rights they may have at law or equity or hereunder shall survive unimpaired.
SECTION 6.3 Amendment. This Agreement may be amended by the parties at
any time prior to the Closing Date by an instrument in writing signed on behalf
of each of the parties hereto.
SECTION 6.4 Extension: Waiver. At any time prior to the Closing Date,
the parties may (a) extend the time for the performance of any of the
obligations or other acts of the other parties, (b) waive any inaccuracies in
the representations and warranties contained in this Agreement or in any
document delivered pursuant to this Agreement, or (c) waive compliance with any
of the agreements or conditions contained in this Agreement. Any agreement on
the part of a party to any such extension or waiver shall be valid only if set
forth in an instrument in writing signed on behalf of such party. The failure of
any party to this Agreement to assert any of its rights under this Agreement or
otherwise shall not constitute a waiver of those rights.
ARTICLE 7
INDEMNIFICATION
SECTION 7.1 Indemnification. By Seller. From and after the Closing
Date, Seller, shall, jointly and severally, (i) indemnify and hold harmless the
HIG and its Affiliates and their officers, directors, employees, affiliates,
successors and assigns and attorneys from and against any and all losses which
it or such persons may suffer or incur, resulting from, related to or arising
out of (a) any misrepresentation or breach of warranty of Seller contained in or
made pursuant to this Agreement or any of the Ancillary Documents; (b) any
breach by Seller or Seller's Affiliates of any of his agreements or obligations
contained in or made pursuant to this Agreement or any of the Ancillary
Documents; and (c) any liability or obligation arising out of the Intangible
Assets as conducted prior
INTANGIBLE ASSET PURCHASE AGREEMENT - PAGE 14
to the Closing and not expressly assumed by HIG pursuant to this Agreement,
including, without limitation, the Retained Liabilities; and (ii) reimburse HIG
and its Affiliates and each of their respective officers, directors, employees
and attorneys for any and all reasonable fees, costs and expenses related
thereto (including without limitation, reasonable legal expenses).
(b) By HIG. From and after the Closing Date, HIG shall (i)
indemnify and hold harmless each Seller and his heirs, personal representatives,
administrators, and trustees, from and against any and all losses, which any of
them may suffer or incur, resulting from, related to or arising out of (a) any
misrepresentation or breach of warranty of HIG which is contained in or made
pursuant to this Agreement; (b) any breach by HIG of any of its agreements or
obligations contained in or made pursuant to this Agreement; and (c) any and all
claims or litigation arising out of any of the foregoing; and (ii) reimburse
each Seller and his heirs, personal representatives, administrators, and
trustees for any and all reasonable fees, costs and expenses related thereto
(including, without limitation, reasonable legal expenses).
(c) Direct Liability. In the event that the person or entity
seeking indemnification under this Article 7 (the "Indemnified Party") shall
become aware of an event which will give rise to or result in an Indemnifiable
Loss, he, she or it shall, within thirty (30) days thereafter, give written
notice to the party from whom indemnification under this Article 7 is sought
(the "Indemnifying Party") of the amount of the Indemnifiable Loss, together
with sufficient information to enable the Indemnifying Party to determine the
accuracy and nature of the claimed Indemnifiable Loss (the "Indemnity Notice").
The failure of the Indemnified Party to give the Indemnifying Party an Indemnity
Notice shall not release the Indemnifying Party from liability under this
Article 8; provided, however, that the Indemnifying Party shall not be liable
for losses which would not have been incurred but for the delay in the delivery
of, or the failure to deliver, the Indemnity Notice. Within thirty (30) days
after the receipt by the Indemnifying Party of the Indemnity Notice, the
Indemnifying Party shall either (i) pay to the Indemnified Party an amount equal
to the Indemnifiable Loss, or (ii) object to such claim, in which case the
Indemnifying Party shall give written notice to the Indemnified Party of such
objection together with the reasons therefor, it being understood that the
failure of the Indemnifying Party to so object shall preclude the Indemnifying
Party from asserting any claim, defense or counterclaim relating to the
Indemnifying Party's failure to pay any Indemnifiable Loss.
(d) Third Party Claim. In the event the facts giving rise to
the claim for indemnification under this Article 7 shall involve any action or
threatened claim or demand by any third party against the Indemnified Party (a
"Third Party Claim"), within the earlier of, as applicable, ten (10) days after
receiving notice of the filing of a lawsuit or thirty (30) days after receiving
notice of the existence of a claim, demand, suit or proceeding (each a "Claim")
giving rise to the claim for indemnification, the Indemnified Party shall send
written notice of such Claim to the Indemnifying Party (the "Claim Notice"). The
failure of the Indemnified Party to give the Indemnifying Party the Claim Notice
shall not release the Indemnifying Party from liability under this Article 7;
provided, however, that the Indemnifying Party shall not be liable for losses
incurred by the Indemnified Party which would not have been incurred but for the
delay in the delivery of, or the failure to deliver, the Claim Notice. Except as
set forth below, the Indemnifying Party shall be entitled to defend such Claim
in the name of the Indemnified Party at his or its own expense and through
counsel of his or its own choosing. The Indemnifying Party shall give the
Indemnified Party notice in writing within
INTANGIBLE ASSET PURCHASE AGREEMENT - PAGE 15
ten (10) days after receiving the Claim Notice from the Indemnified Party in the
event the Claim is one involving an instituted suit or proceeding, or otherwise
within thirty (30) days, of his or its intent to do so. If the Indemnifying
Party chooses to defend or prosecute a Third Party Claim, all the Indemnified
Parties shall cooperate in the defense or prosecution thereof. Such cooperation
shall include the retention and (upon the Indemnifying Party's request) the
provision to the Indemnifying Party of records and information that are
reasonably relevant to such Third Party Claim, and making employees available on
a mutually convenient basis to provide additional information and explanation of
any material provided hereunder. Whether or not the Indemnifying Party assumes
the defense of a Third Party Claim, the Indemnified Party shall not admit any
liability with respect to, or settle, compromise or discharge, such Third Party
Claim without the Indemnifying Party's prior written consent, which consent
shall not be unreasonably withheld, delayed or conditioned. The Indemnified
Party may elect, by notice in writing to the Indemnifying Party, to continue to
participate through his or its own counsel, at his or its expense, but the
Indemnifying Party shall have the right to control the defense of the Claim with
counsel reasonably acceptable to the Indemnified Party. In the event that the
Indemnifying Party is controlling the defense of the Claim and shall have
negotiated a settlement thereof, which proposed settlement is final and
unconditional as to the parties thereto and contains an unconditional release of
the Indemnified Party, without the Indemnified Party being liable for damages of
any kind or nature or being otherwise required to pay any amount of money to any
third party and does not include the imposition of any restrictions on the part
of the Indemnified Party or require that the Indemnified Party make an admission
of guilt or liability or deliver a confession of judgment, or any other
non-financial obligation which, in the reasonable judgment of the Indemnified
Party, renders such settlement unacceptable, the Indemnified Party shall consent
to such settlement.
SECTION 7.2 Right to Set-Off. To secure the indemnification provided
for in Section 7.1(a) hereof, and to compensate HIG for any claim having as its
basis the indemnification provided for in Section 7.1(a) hereof, HIG and its
Affiliates shall have a right of set-off from any sum due to Seller, Bulco or
Tempus or any of their Affiliates, including sums due under this Agreement or
any of the Ancillary Documents.
ARTICLE 8
GENERAL PROVISIONS
SECTION 8.1 Survival of Representations, Warranties and Covenants. The
representations and warranties in this Agreement or in any instrument delivered
pursuant to this Agreement shall survive the Closing Date.
SECTION 8.2 Notices. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be deemed
given if delivered personally when received if or sent by overnight courier
(providing proof of delivery) to the parties at the following addresses (or at
such other address for a party as shall be specified by like notice):
INTANGIBLE ASSET PURCHASE AGREEMENT - PAGE 16
(a) if to HIG, to:
Home Interiors & Gifts, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with a mandatory copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(b) if to Seller to:
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇ Seller ▇▇▇▇▇▇▇
c/o Bulco, S.A. de ▇.▇.
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ 749
Predio El ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇, ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ de ▇▇▇▇ ▇▇▇▇▇
c/o Bulco, S.A. de ▇.▇.
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ 749
Predio El ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇, ▇▇▇▇▇▇
with a mandatory copy to:
C.P. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Rio ▇▇▇▇▇▇▇▇▇ numero 110 interior 8
Colonia del ▇▇▇▇▇
San ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, N.L.
C.P. 66220
and
Lic. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Bravo numero 7171 Sur
Colonia ▇▇▇▇▇ ▇▇▇▇▇
Monterrey, N.L.
C.P. 64040
INTANGIBLE ASSET PURCHASE AGREEMENT - PAGE 17
SECTION 8.3 Definitions. For purposes of this Agreement, the following
terms shall have the following respective meanings:
"Accounting and Financial Records": As defined in Section 1.1(b)
hereof.
"Affiliate": With respect to HIG, any corporation, partnership, limited
liability company or other entity of which 25% of the equity or voting
power is controlled directly or indirectly by Home Interiors & Gifts,
Inc., a
Texas corporation ("HIG"), or another Affiliate of HIG, or
which owns 51% or more of the equity of voting power of HIG (the "HIG
Parent"), or which is an Affiliate of the HIG Parent, and with respect
to Seller, any corporation, partnership, limited liability company or
other entity of which 25% of the equity or voting power is controlled
directly or indirectly by Pachur or ▇▇▇▇, or another Affiliate of
Pachur or ▇▇▇▇.
"Ancillary Documents": As defined in Section 3.1(a) hereof.
"Bancomext Authorization": As defined in Section 2.2 hereof.
"Business": As defined in Section 1.1 hereof.
"Claim": As defined in Section 7.1(d) hereof.
"Claim Notice": As defined in Section 7.1(d) hereof.
"Closing": As defined in Section 2.1 hereof.
"Closing Date": As defined in Section 2.1 hereof.
"Environmental Laws" means, as of the Closing Date, any applicable
treaties, laws, regulations, enforceable requirements, order, decrees
or judgments issued, promulgated or entered into by any Governmental
Entity, which relate to (x) pollution or protection of the environment
or (y) Hazardous Materials generation, storage, use, handling, disposal
or transportation and any similar or implementing state or local law,
and all amendments or regulations promulgated thereunder.
"Expenses": As defined in Section 4.2(a) hereof.
"Facilities": As defined in Section 1.3 hereof.
"Financial Statements": As defined in Section 3.1(h) hereof.
"GAAP": means those generally accepted accounting principles and
practices, applied on a consistent basis, which are recognized as such
by the applicable financial accounting standards boards of the U.S. or
Mexico and/or their respective successors and which are applicable in
the circumstances as of the date in question.
"Governmental Entity": Any court or any foreign, federal, state,
municipal or other governmental department, commission, board, bureau,
agency, authority or instrumentality.
"Gross Sales". As defined in Section 1.3 hereof.
"Gross Sales Statement": As defined in Section 1.5 hereof.
"Hazardous Materials" means all explosive or regulated radioactive
materials or substances, hazardous or toxic substances, wastes or
chemicals, petroleum or petroleum distillates, asbestos or asbestos
containing materials and all other materials or chemicals regulated
pursuant to any Environmental Law.
"Indemnified Party": As defined in Section 7.1(c) hereof.
"Indemnifying Party": As defined in Section 7.1(c) hereof.
"Indemnity Notice": As defined in Section 7.1(c) hereof.
"Intangible Assets": As defined in Section 1.1 hereof.
"Intellectual Property": As defined in Section 1.1(e) hereof.
INTANGIBLE ASSET PURCHASE AGREEMENT - PAGE 18
"Knowledge of Seller" means, with respect to the Seller, the current
actual knowledge of a person.
"Liens": All mortgages, deeds of trust, claims, liens, security
interests, pledges, leases, conditional sale contracts, rights of first
refusal, options, charges, liabilities, obligations, agreements,
easements, rights-of-way, powers of attorney, limitations,
reservations, restrictions and other encumbrances of any kind.
"Material Adverse Change" or "Material Adverse Effect": Any change
(individually or in the aggregate) that has a material adverse effect
on the business, results of operations or financial condition of Seller
that is likely to result in a cost, expense, charge or liability equal
to or greater than $$10,000.00.
"Order": Any judgment, writ, decree, injunction, order, stipulation,
compliance agreement or settlement agreement issued or imposed by,
entered into with, a Governmental Entity, whether or not having the
force of law.
"Permits": All permits, authorizations, certificates, approvals,
registrations, variances, exemptions, rights-of-way, franchises,
privileges, immunities, grants, ordinances, licenses and other rights
of every kind and character (a) under any (1) federal, state, local or
foreign statute, ordinance or regulation, (2) Order or (3) contract
with any Governmental Entity or (b) granted by any Governmental Entity.
"Person": An individual, partnership, joint venture, corporation,
company, limited liability company, bank, trust, unincorporated
organization, Governmental Entity or group.
"Purchase Price": As defined in Section 1.2 hereof.
"Retained Liabilities": As defined in Section 1.4 hereof.
"Scheduled Contracts": As defined in Section 1.1(d) hereof.
"Taxes": Any federal, state, local or foreign income, sales, excise,
real or personal property franchise, capital stock, gross receipts,
license, payroll, employment, unemployment, social security, stamp,
occupation, intangible, estimated tax or other taxes, assessments,
fees, levies, imposts, duties, deductions or other charges of any
nature whatsoever (including, without limitation, interest and
penalties) imposed by any law, rule or regulation.
"Third Party Claim": As defined in Section 7.1(d) hereof.
SECTION 8.4 Interpretation; Governing Language. When a reference is
made in this Agreement to a Section, such reference shall be to a Section of
this Agreement unless otherwise indicated. The table of contents and headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement. This Agreement is in
the English language only, and all communications between the parties relative
to this Agreement shall be conducted in the English language only. Any version
of this Agreement in the Spanish language, whether or not executed by the
parties, is and shall be prepared solely for the benefit of Seller and
Stockholders and shall be considered a non-binding translation of the Agreement.
SECTION 8.5 Counterparts; Facsimiles. This Agreement may be executed in
one or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have been
signed by each of the parties and delivered to the other parties. Facsimile
signatures shall be effective.
INTANGIBLE ASSET PURCHASE AGREEMENT - PAGE 19
SECTION 8.6 Entire Agreement: No Third Party Beneficiaries. This
Agreement constitutes the entire agreement and supersedes all prior
representations, agreements or understandings among the parties with respect to
the subject matter of this Agreement both written and oral. This Agreement is
not intended to confer upon any person other than the parties any rights or
remedies hereunder.
SECTION 8.7 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of
Texas, regardless of the
laws that might otherwise govern under applicable principles of conflict of laws
thereof; provided, however, that to the extent the law of Mexico expressly
provides for application of the law of Mexico to real property and personal
property situated within Mexico, the law of Mexico shall apply to that limited
extent. Each of the parties hereby agrees that the laws of the State of
Texas
bear a reasonable relationship to the transaction. Buyer is a
Texas corporation.
SECTION 8.8 Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned, in whole or in
part, by operation of law or otherwise by Seller without the prior written
consent of the other. Subject to the preceding sentence, this Agreement will be
binding upon, inure to the benefit of, and be enforceable by, the parties and
their respective successors and assigns.
SECTION 8.9 Enforcement. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any Federal court located in the
State of
Texas, County of Dallas, or in any
Texas State court located in the
County of Dallas, this being in addition to any other remedy to which they are
entitled at law or in equity. In addition, each of the parties hereto (a)
consents to submit himself, herself or itself to the personal jurisdiction of
any Federal court located in the State of
Texas, County of Dallas, or any Texas
State court located in the County of Dallas, in the event any dispute arises out
of this Agreement or any of the transactions contemplated by this Agreement, (b)
agrees that he, she or it will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court and (c)
agrees that he, she or it will not bring any action relating to this Agreement
or any of the transactions contemplated by this Agreement in any court other
than a Federal court located in the State of Texas, County of Dallas, or a Texas
State court located in the County of Dallas.
SECTION 8.10 Exhibits and Schedules. Any matter set forth on any
Schedule shall be deemed set forth on all other Schedules to the extent
relevant. Except when the context requires otherwise, any reference in this
Agreement to any Article, Section, clause, Schedule or Exhibit shall be to the
Articles, Sections and clauses of, and Schedules and Exhibits to, this
Agreement. The words "include," "includes" and "including" are deemed to be
followed by the phrase "without limitation." Any reference to the masculine,
feminine or neuter gender shall include such other genders and any reference to
the singular or plural shall include the other, in each case unless the context
otherwise requires. All Exhibits and Schedules annexed hereto or referred to
herein are hereby incorporated in and made a part of this Agreement as if set
forth in full herein. When a
INTANGIBLE ASSET PURCHASE AGREEMENT - PAGE 20
reference is made in this Agreement to a Section, Exhibit or Schedule, such
reference shall be to a Section of, or an exhibit or Schedule to, this Agreement
unless otherwise indicated.
SECTION 8.11 Arbitration. The parties agree that except as otherwise
set forth in this Agreement, any disputes arising out of or in connection with
this Agreement shall be finally settled by arbitration under the then current
rules of arbitration of the United Nations Commission for International Trade
Law ("UNCITRAL"). There shall be three arbitrators. Each of Buyer and Seller
shall select one arbitrator at will, and the third arbitrator shall be selected
by the two arbitrators previously chosen by Buyer and Seller. The arbitration
shall take place in Dallas, Texas and shall be conducted in English. The
decision of the arbitrators shall be final and shall be enforceable in any court
of competent jurisdiction. The non-prevailing party in arbitration will pay its
own expenses, the fees of each arbitrator, the administrative costs of the
arbitration and the expenses, including reasonable attorneys' fees and witness
fees and costs, incurred by the other party to the arbitration. Each party
hereby irrevocable consents to the jurisdiction of the UNCITRAL solely for the
purposes of arbitration described in this Section 8.11.
SECTION 8.12 Currency and Payment. All amounts payable hereunder shall
be calculated and payable in United States dollars.
SECTION 8.13 Confidentiality. The parties hereto agree to keep this
Agreement and the subject mater hereof confidential and, except as required in
connection with the enforcement of the terms and provisions hereof as required
by law, not to disclose same to any third parties without the prior written
consent of the parties hereto.
INTANGIBLE ASSET PURCHASE AGREEMENT - PAGE 21
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above.
SELLER:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ PACHUR ▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇ Pachur ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ PACHUR ▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ de ▇▇▇▇ ▇▇▇▇▇
Legal Representative and power of attorney
HIG:
HOME INTERIORS & GIFTS, INC.
a Texas corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Senior Vice President
INTANGIBLE ASSET PURCHASE AGREEMENT - PAGE 22
EXHIBIT "A"
BN&M Draft dated 1/25/03
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into effective
as of JANUARY ____, 2003, by and between HI SERVICES DE MEXICO, S.A. DE C.V., a
Mexico corporation (together with its successors and assigns, the "Company"),
and ▇▇▇▇▇▇ ▇▇▇▇▇ PACHUR ▇▇▇▇▇▇▇ (the "Executive").
RECITALS:
WHEREAS, Tempus Corporation, S.A. de C.V., a Mexico corporation
("Tempus"), and HI Metals, S.A. de C.V. ("HI Metals") an affiliate of the
Company, entered into that certain Asset Purchase Agreement (herein so called)
of even date herewith pursuant to which, in pertinent part, HI Metals purchased
the tangible assets of Tempus; and
WHEREAS, after the consummation of the transactions contemplated under
the Asset Purchase Agreement, the Company desires to employ the Executive, and
the Executive desires to be employed by the Company, on the terms and conditions
set forth herein;
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
AGREEMENT:
1. EMPLOYMENT PERIOD. The Company agrees to employ the Executive, and
the Executive agrees to be employed by the Company, in accordance with the terms
and conditions of this Agreement, for an unspecified term in such position as
the Board of Directors of the Company shall prescribe. The Executive agrees that
regardless of the term for which this Agreement is executed, he will perform his
services for the Company for at least three (3) years from the date of execution
of the same. Regardless of the date on which this Agreement is executed, the
same will be effective, as will the employment that the same establishes, as of
the date first set forth above.
2. TERMS OF EMPLOYMENT.
(a) Position and Duties.
(i) During the term of this Agreement, the Executive
shall have such powers and duties as may from time to time be
assigned or delegated to him by the President of the Company,
or, in the absence of such assignment or delegation, will have
such powers and duties as are normally associated with and
inherent with such position. The Executive shall be bound to
carry out any other work related to his main obligation
provided that his salary is not modified, and shall also be in
charge of any other activities the performance of which is
required to take place outside the working center. The
Executive shall always abide by the instructions of his
superiors, the provisions of the Internal Working Regulations
of the Company, if applicable, as well as any other provisions
and orders at the discretion of the Company.
EMPLOYMENT AGREEMENT - PAGE 1
(ii) During the term of this Agreement, excluding any
periods of vacation and sick leave to which the Executive is
entitled, the Executive agrees to devote all of his business
time to the business and affairs of the Company and, to the
extent necessary to discharge the responsibilities assigned to
the Executive hereunder, to use the Executive's best efforts
to perform faithfully, effectively and efficiently such
responsibilities. The Executive will use his best efforts to
promote the success of the Company's business, and will
cooperate fully with the management of the Company.
(b) Compensation.
(i) Base Salary. During the term of this Agreement,
the Executive shall receive, at such intervals and in
accordance with such Company policies as may be in effect from
time to time, an annual salary (pro rata for any partial year)
equal to _____________ Mexican pesos equal to U.S. $150,000.00
converted at__________ (the "Annual Base Salary"), payable in
equal installments each fifteen (15) days as required by the
Mexican Labor Law. The Annual Base Salary shall be subject to
appropriate increase, as determined in the sole and absolute
discretion of the Board of Directors of the Company in the
advancement of the best interests of the Company.
(ii) Salary Receipt. Every pay day, the Executive
shall execute a receipt prepared by the Company in the
Company's favor, covering all of the salary he earned up to
that date, on the understanding that the execution of the
receipt shall imply his agreement that the salary received
covers all of the work performed, and that he shall not claim
payment of any amount, as he must claim said payment to which
he believes he is entitled, precisely upon executing the
receipt. The Executive's execution of the receipt, shall
constitute a release for the Company for any salary or
benefits to which the Executive might be entitled for his
services rendered up to that date, even though the receipt
does not so state.
(iii) Annual Bonus. The Executive shall be eligible
to receive, for each calendar year commencing with the
calendar year ending December 31, 2003, an annual bonus up to
thirty percent (30%) of the Annual Base Salary, which annual
bonus shall be determined by the Board of Directors of the
Company from time to time within its sole and absolute
discretion (the "Annual Bonus"). Each Annual Bonus shall be
paid in cash in accordance with the Company's policies in
effect from time to time. The Annual Bonus will be reduced, at
the option of the
EMPLOYMENT AGREEMENT - PAGE 2
Company, by amounts paid to Executive as a Christmas bonus and
by other bonuses, if any, required to be paid to Executive by
Federal Labor Law.
(iv) Stock Options. On or before June 30, 2003, Home
Interiors shall grant to the Executive non-qualified stock
options to purchase 40,000 shares of Common Stock of Home
Interiors & Gifts, Inc., a corporation formed under the laws
of the State of Texas, United States of America and an
affiliate of the Company ("HIG"), at an exercise price of U.S.
$19.42 per share. The stock options will be evidenced by a
separate Option Agreement and will be granted pursuant to, and
subject to the terms and conditions of HIG's 2002 Stock Option
Plan for Key Employees. The options will vest and become
exercisable in the manner and at the times provided in the
Option Agreement. HIG or the Company, as appropriate, shall
include the profit of such options on the date of exercise
(i.e. the difference between the exercise price and the fair
market value) in the income deemed to have been paid to the
Executive .
(c) Compulsory Days Off. The Executive shall enjoy the
compulsory days off established in the Federal Labor Law, provided with
full paid salary.
(d) Vacations. The Executive shall enjoy vacations for each
year of services rendered, as provided in Article 76 of the Federal
Labor Law, understanding that said vacation period will be granted
after a full year of services rendered. The Company shall determine the
period within the year in which the Executive shall be allowed to take
his vacation, and the Executive shall ask for said period at least a
month in advance.
(e) Christmas Bonus. As prescribed by Federal Labor Law, the
Executive shall receive payment of 15 (fifteen) days of his Annual Base
Salary as a Christmas bonus, which shall be paid by the Company before
the twentieth of December of each year. For any calendar year in which
Executive is not employed by the Company for the entire calendar year,
the Christmas bonus shall be reduced for that year in proportion to the
amount of time Executive was not employed by the Company.
(f) Weekly Days Off. The Executive shall enjoy two weekly days
off with full paid salary; both parties agree that the day off shall be
the Saturday and Sunday of each week; the salary for the days off is
included in the Annual Base Salary. The Executive expressly authorizes
the Company to change his weekly day off, depending on the Company's
needs.
(g) Expenses. During the term of the Executive's employment,
the Executive shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by the Executive at the request of, or on
behalf of, the Company in the performance of the Executive's duties
pursuant to this Agreement, and in accordance with the Company's
policies, practices and procedures. The Executive must file expense
reports with respect to such expenses in accordance with the Company's
policies.
EMPLOYMENT AGREEMENT - PAGE 3
3. TERMINATION OF EMPLOYMENT.
(a) Death or Disability. The Executive's employment shall
terminate automatically upon the Executive's death during the term of
this Agreement. If the disability (as defined in the Federal Labor Law
and the Social Security Law) of the Executive has occurred during the
term of this Agreement, the Company and the Executive shall comply with
the provisions set forth in the Federal Labor Law and the Social
Security Law applicable to such disability.
(b) Termination by the Company. Subject to the provisions set
forth in the Federal Labor Law, the Company may terminate the
Executive's employment during the term of this Agreement without Cause.
Further, the Company may terminate the Executive's employment during
the term of this Agreement for Cause immediately upon written notice
(following expiration of the cure period, if any, described below) to
Executive of Company's intention to do so. For purposes of this
Agreement, the phrase "for Cause" means: (i) the Executive's breach of
this Agreement or any other document, agreement or contract to which
the Executive or his affiliates and the Company or its affiliates are a
party, which is not remedied within fifteen (15) days after receipt of
written notice from the Company specifying such breach; (ii) the
Executive's failure to adhere to any material written policy of the
Company, which is not remedied within fifteen (15) days after receipt
of written notice from the Company specifying such failure; (iii) the
Executive's appropriation (or attempted appropriation) of a material
business opportunity of the Company, including, without limitation,
attempting to secure or securing, any personal profit in connection
with any transaction entered into on behalf of the Company; (iv) the
Executive's commission of (or attempt to commit) an act of fraud,
illegality, theft or willful misconduct toward the Company in the
course of employment with the Company that relates to the Company's
assets, activities, operations or other employees; (v) the Executive's
conviction of, the indictment for (or its procedural equivalent), or
the entering of a guilty plea or plea of no contest or deferred
adjudication with respect to, a felony, the equivalent thereof, or any
other crime with respect to which imprisonment is a possible
punishment; (vi) the intentional failure of the Executive to carry out,
or comply with, in any material respect any directive of the Board of
Directors consistent with the terms of this Agreement, which is not
remedied within fifteen (15) days after receipt of written notice from
the Company specifying such failure; or (vii) any of the just causes
set forth by Article 47 of the Federal Labor Law.
(c) Notice of Termination. Any termination by the Company (for
Cause or otherwise) shall be communicated by Notice of Termination to
the other party hereto given in accordance with Section 10(a).
(d) Date of Termination. "Date of Termination" means (i) the
date of receipt of a Notice of Termination or any later date specified
therein, and (ii) if the Executive's employment is terminated by reason
of death or Disability, the date of death of the Executive or the date
of disability, as the case may be.
EMPLOYMENT AGREEMENT - PAGE 4
4. OBLIGATIONS OF THE COMPANY UPON TERMINATION.
(a) Termination by the Company Other Than For Cause. If the
Company terminates the employment of Executive without Cause (other
than or in connection with death or Disability), the Company shall pay
to the Executive: (i) the Executive's applicable Annual Base Salary
through the Date of Termination to the extent not theretofore paid
("Accrued Obligations"); and (ii) monthly severance payments of
_________________ [MEXICAN PESOS/U.S. DOLLARS], payable in accordance
with the Company's regular pay schedule, from the date of termination
of employment through the earlier to occur of the date twelve (12)
months following the Date of Termination and January ___, 2006, instead
of, and not in addition to, the legal severance established by the
Federal Labor Law. Subject to the provisions set forth in the Federal
Labor Law and the Social Security Law, an election by the Company not
to extend the initial term beyond its initial expiration date shall not
be considered a termination without Cause for purposes of this Section
4(a), and Company shall have no obligation to pay severance pay to the
Executive pursuant to this Section 4(a).
(b) Termination by the Company for Death or Disability. If the
Executive's employment is terminated by reason of the Executive's death
or Disability during the term of this Agreement, the Company shall pay
the amounts established in the Federal Labor Law. Subject to the
provisions set forth in the Federal Labor Law and the Social Security
Law, the Company shall have no further payment obligations to the
Executive or his legal representatives under this Agreement.
(c) Termination by the Company for Cause. Subject to the
provisions set forth in the Federal Labor Law and the Social Security
Law, if the Executive's employment shall be terminated by the Company
for Cause during the term of this Agreement, the Company shall have no
further payment obligations to the Executive other than for payment of
Accrued Obligations.
5. FULL AND FINAL RELEASE. The Company's obligations pursuant to
Section 4 above are subject to the Executive's execution of a full and final
release of the Company, in form and substance satisfactory to the Company.
6. FULL SETTLEMENT, MITIGATION. Subject to the provisions set forth in
the Federal Labor Law and the Social Security Law, the amounts payable to the
Executive under Section 4(a)(ii) of this Agreement shall be reduced by the
amount of any compensation earned by the Executive during the period in which
severance is paid. The Company shall not be liable to the Executive for any
damages in addition to the amounts payable under Section 4 arising out of the
termination of the Executive's employment, for any reason, prior to the end of
the term of this Agreement.
7. SURRENDER OF MATERIALS UPON TERMINATION. Upon termination of the
Executive's employment, for any reason, the Executive shall immediately return
to the Company all originals and/or copies, in whatever form, of any and all
Proprietary Information and any other property of the Company and its
affiliates, which are in the Executive's possession, custody or control, whether
or not provided by the Company.
EMPLOYMENT AGREEMENT - PAGE 5
8. SUCCESSORS.
(a) This Agreement is personal to the Executive and shall not
be assignable by the Executive. This Agreement shall inure to the
benefit of and be enforceable by the Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns.
(c) The Company may assign this Agreement to any successor in
interest that agrees to perform this Agreement in the same manner and
to the same extent that the Company would be required to perform if no
such succession had taken place.
9. EFFECT OF AGREEMENT ON OTHER BENEFITS. The existence of this
Agreement shall not prohibit or restrict the Executive's entitlement to full
participation in the employee benefit and other plans or programs in which
employees of the Company are eligible to participate, following adoption by the
Company of such employee benefit and other plans and programs.
10. MISCELLANEOUS.
(a) Notice. All notices and other communications hereunder
shall be in writing and shall be given by hand delivery to the other
party or by registered or certified mail, return receipt requested,
postage prepaid, addressed as follows:
If to the Executive:
▇▇▇▇▇▇ ▇▇▇▇▇ Pachur ▇▇▇▇▇▇▇
via ▇▇▇▇▇▇▇ 226-1
Col. ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇,
▇.▇. ▇▇▇▇▇, ▇▇▇▇▇▇
If to the Company:
HI Services de Mexico, S.A. de C.V.
c/o Home Interiors & Gifts, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
or to such other address as either party shall have furnished to the
other in writing in accordance herewith. Notice and communications
shall be effective when actually received by the addressee.
(b) Severability. If any provision of this Agreement is held
to be illegal, invalid or unenforceable under present or future laws
effective during the term of this Agreement, such provision shall be
fully severable; this Agreement shall be construed
EMPLOYMENT AGREEMENT - PAGE 6
and enforced as if such illegal, invalid or unenforceable provision had
never comprised a portion of this Agreement; and the remaining
provisions of this Agreement shall remain in full force and effect and
shall not be affected by the illegal, invalid or unenforceable
provision or by its severance from this Agreement. Furthermore, in lieu
of such illegal, invalid or unenforceable provision there shall be
added automatically as part of this Agreement a provision as similar in
terms to such illegal, invalid or unenforceable provision as may be
possible and be legal, valid and enforceable.
(c) Withholding. The Company may withhold from any amounts
payable under this Agreement such Federal, state or local taxes as
shall be required to be withheld pursuant to any applicable law or
regulation.
(d) Obligations Contingent on Performance. The obligations of
the Company hereunder, including its obligation to pay the compensation
provided for herein, are contingent upon the Executive's performance of
the Executive's obligations hereunder.
(e) Waiver. The Executive's or the Company's failure to insist
upon strict compliance with any provision of this Agreement or the
failure to assert any right the Executive or the Company may have
hereunder shall not be deemed to be a waiver of such provision or right
or any other provision or right of this Agreement.
(f) Territory. Pursuant to the Company's activities and
considering the nature of his duty, the Executive is bound to perform
his services anywhere within Mexican Territory or abroad, and shall do
his job in any other position without prejudice of his wages.
(g) Confidential Executive. As a consequence of the
confidential nature of the activities that the Executive will be
performing and that consequently, law requirements are met, both
parties agree that the Executive is, and for all legal purposes will be
considered as a confidential employee.
(h) Training and Instruction. The Company shall train and
instruct the Executive as provided in the Federal Labor Law pursuant to
the training and instruction program agreed upon with and approved by
the Labor authorities.
(i) Language. This Agreement is in the English and Spanish
language, and all communications between the parties relative to this
Agreement shall be conducted in the English language only. Any version
of this Agreement in the English language, whether or not executed by
the parties, is and shall be prepared solely for the benefit of the
Executive and shall be considered a non-binding translation of the
Agreement.
(j) Currency and Payment. Unless otherwise agreed, all amounts
payable hereunder shall be calculated and payable in Mexican pesos.
(k) Applicable Law. Both parties agree that everything which
is not expressly provided for hereunder shall be governed by the
Federal Labor Law and that for every thing regarding the construction,
execution and fulfillment of this Agreement they
EMPLOYMENT AGREEMENT - PAGE 7
expressly submit to the jurisdiction and competence of the Conciliation
and Arbitration Board of the City of Mexico, D.F.
(l) General Information. For the purposes of Article 25 of the
Federal Labor Law, the Company declares that it is a Mexican company,
incorporated according to the Laws of the Republic of Mexico and is
engaged in _________________________________, domiciled at
________________________________ and the Executive declares that he is
a _________ national, __ years, domiciled at
_________________________________ which he declares further is his
address for service of process purposes under the Federal Labor Law,
this Agreement and the relations hereunder. The Executive shall advise
the Company of any change of address; if he fails to do so, he accepts
that any process served at said address shall be valid.
(m) Entire Agreement; Amendments. The provisions of this
Agreement constitute the complete understanding and agreement between
the parties with respect to the subject matter hereof and supersede all
prior agreements and understandings, oral or written, between or among
the parties hereto. This Agreement may not be amended orally, but only
by an agreement in writing signed by the parties hereto or their
respective successors and legal representatives.
(n) Counterparts. This Agreement may be executed in one or
more counterparts, each of which will be deemed to be an original copy
of this Agreement and all of which, when taken together, will be deemed
to constitute one and the same Agreement.
(o) Section Headings, Construction. The captions or headings
of Sections in this Agreement are provided for convenience only and are
not part of the provisions hereof and shall have no force or effect.
Whenever the terms "hereof", "hereby", "herein", or words of similar
import are used in this Agreement they shall be construed as referring
to this Agreement in its entirety rather than to a particular section
or provision, unless the context specifically indicates to the
contrary. Any reference to a particular "Section" or "paragraph" shall
be construed as referring to the indicated section or paragraph of this
Agreement unless the context indicates to the contrary. The use of the
term "including" herein shall be construed as meaning "including
without limitation."
SIGNATURE PAGE FOLLOWS
EMPLOYMENT AGREEMENT - PAGE 8
EXECUTED to be effective as of January _____, 2003.
EXECUTIVE:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ PACHUR ▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇ Pachur ▇▇▇▇▇▇▇
COMPANY:
HI SERVICES DE MEXICO, S.A. DE C.V.,
a Mexico corporation
By:
--------------------------------------
Printed Name:
----------------------------
Title:
-----------------------------------
EMPLOYMENT AGREEMENT - PAGE 9
EXHIBIT "B"
NONCOMPETITION AGREEMENT
THIS NONCOMPETITION AGREEMENT (the "Agreement") is entered into
effective as of January _____, 2003, by and among HI SERVICES DE MEXICO, S.A. DE
C.V., a Mexico corporation ("HI Services"), HI METALS, S.A. DE C.V., a Mexico
corporation ("HI Metals"), HOME INTERIORS & GIFTS, INC., a Texas corporation
("HIG") (HI Metals, HI Services and HIG, together with their successors and
assigns, the "HIG Companies"), ▇▇▇▇▇▇ ▇▇▇▇▇ PACHUR ▇▇▇▇▇▇▇ ("Pachur"), ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ DE ▇▇▇▇ ▇▇▇▇▇ ("de ▇▇▇▇"), TEMPUS CORPORATION, S.A. DE C.V., a Mexico
corporation ("Tempus"), and BULCO, S.A. DE C.V., a Mexico corporation ("Bulco")
(Pachur, de ▇▇▇▇, Tempus and Bulco hereinafter defined as the "Pachur Parties").
RECITALS:
WHEREAS, HIG and Pachur and de ▇▇▇▇ entered into that certain
Intangible Asset Purchase Agreement on or about the date hereof (the "Asset
Purchase Agreement") pursuant to which, in pertinent part, HIG purchased
substantially all of Bulco's intangible assets;
WHEREAS, HI Services and Pachur entered into that certain Employment
Agreement (herein so called) on or about the date hereof; and
WHEREAS, the HIG Companies and the Pachur Parties desire to enter into
this Agreement in connection with the execution and delivery of the Asset
Purchase Agreement and the Employment Agreement;
AGREEMENT:
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. EXISTENCE AND REPRESENTATION.
(a) Existence of Tempus Tempus is a Mexico corporation,
constituted through Public Contract Number 3,254 - three thousand two
hundred and fifty-four - dated on December 1, 1995, granted before the
faith of Licenciado (Attorney) ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Notary
Public Number 97 with practice in the City of Monterrey, N.L.
(b) Representation of Tempus. Pachur justifies his
representation of Tempus, with the Public Contract Number 11,826, dated
on January 16, 2003, granted before the faith of Licenciado (attorney)
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Notary Public Number 122 with practice in the
City of Monterrey, N.L.
(c) Existence of Bulco. Bulco is a Mexico corporation,
constituted through Public Contract Number 4,195 - four thousand one
hundred and ninety-five - dated on July 17, 1997, granted before the
faith of Licenciado (Attorney) ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Notary
Public Number 97 with practice in the City of Monterrey, N.L.
(d) Representation of Bulco. Pachur justifies his
representation of Bulco, with the Public Contract Number 11,827, dated
on January 16, 2003, granted before the faith
of Licenciado (attorney) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Notary Public Number
122 with practice in the City of Monterrey, N.L..
(e) Existence of HI Metals. HI Metals is a Mexico corporation,
constituted through Public Contract Number 32,804 - thirty-two thousand
eight hundred and four - dated on December 16, 2002, granted before the
faith of Licenciado (Attorney) ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Notary
Public Number 102 for the Federal District with practice in the City of
Monterrey, N.L.
(f) Representation of HI Metals. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ justifies
his representation of HI Metals, with the Public Contract Number
33,069, dated December 23, 2002, granted before the faith of Licenciado
(attorney) ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Notary Public Number 102 with
practice in the City of Monterrey, N.L.
(g) Existence of HI Services. HI Services is a Mexico
corporation, constituted through Public Contract Number 33,076 -
thirty-three thousand and seventy-six - dated on January 24, 2003,
granted before the faith of Licenciado (Attorney) ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, Notary Public Number 102 for the Federal District with
practice in the City of Monterrey, N.L.
(h) Representation of HI Services. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
justifies his representation of HI Services, with the Public Contract
Number 33,100, dated January 28, 2003, granted before the faith of
Licenciado (attorney) ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Notary Public Number
102 with practice in the City of Monterrey, N.L..
(i) Existence of HIG. HIG is a Texas corporation, formed with
the Secretary of State of Texas on December 3, 1957 and possessing
Charter No. 0014349000.
(j) Representation of HIG. HIG is represented by ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, Senior Vice President of HIG.
2. CHANGE OF NAME.
(a) Business Name Waiver and Change. Pachur and de ▇▇▇▇,
acting as the sole stockholders of Tempus and Bulco, commit themselves
to change the corporate names of Tempus and Bulco within ninety (90)
days following the date of this Agreement, and waive in this Agreement
the rights of usage and seniority of the names "Tempus Corporation" and
"Bulco", in order to allow the HIG Companies to elect to use such names
as their property with the good will and seniority corresponding to
these businesses. Likewise, the Pachur Parties agree not to publicly
use the names "Tempus Corporation" and "Bulco" following the Closing of
the Asset Purchase Agreement.
(b) Corporate Purposes Change. Pachur and de ▇▇▇▇ as the sole
stockholders of Tempus and Bulco commit themselves to change the
corporate purposes of Tempus and Bulco within a term of ninety (90)
days counted following the Closing of the Asset Purchase Agreement, to
a purpose not inconsistent with this Agreement.
3. COOPERATION. The Pachur Parties, jointly and severally, agree as
follows:
NONCOMPETITION AGREEMENT - PAGE 2
(a) Suppliers. The Pachur Parties agree to recommend to all
suppliers, whether verbally or in writing, that following the Closing
of the Asset Purchase Agreement, all such suppliers do business with HI
Metals. The names of Tempus' and Bulco's suppliers are attached hereto
as Exhibit "A".
(b) Employees. The Pachur Parties shall use best efforts to
maintain good employee morale on the parts of the persons who until the
Closing of the Asset Purchase Agreement were employees of Tempus.
4. RESTRICTIVE COVENANTS.
As a material inducement to the HIG Companies to enter into and perform
their obligations under this Agreement, the Asset Purchase Agreement and the
Employment Agreement, the Pachur Parties covenant and agree, as follows:
(a) For a period commencing on the date hereof and ending two
(2) years following the date that Pachur's employment with HI Services
or an affiliate of HI Services terminates (the "Restricted Period");
provided, however, that the Restricted Period shall not be less than a
period of five (5) years following the date hereof, the Pachur Parties
shall not, directly or indirectly, alone or in conjunction with any
other corporation, firm, partnership, person, venture or other entity
(except as a holder of an aggregate of not more than five percent (5%)
of the outstanding stock of a corporation or partnership whose stock or
partnership interests are listed on a national securities exchange or
traded over the counter on NASDAQ) own, manage, operate, join, control,
work for, permit the use of their names by, consult with or engage in
any activity anywhere within the United States of America or Mexico
(the "Territory"), that is in any way competitive with any aspect of
the business, as presently conducted or as conducted by the HIG
Companies during the term of this Agreement.
(b) The covenant contained in Section 4(a) above shall be
deemed to be a series of separate and severable covenants, one for each
state located in the Territory. Except for geographic coverage, each
such separate covenant shall be deemed identical in terms with the
covenant contained in Section 4(a). If, in any judicial proceeding, a
court should refuse to enforce all of the separate covenants deemed
included in Section 4(a) because taken together they cover too
extensive a geographic area, then it is intended that those of such
covenants which, if eliminated, would permit the remaining separate
covenants to be enforced in such proceedings shall, for the purpose of
such proceeding, be deemed eliminated from the provisions hereof.
(c) The covenant contained in Section 4(a) above shall be
deemed to be a series of separate and severable covenants, one for each
successive month during the terms of said covenants. If, in any
judicial proceeding, a court should refuse to enforce all of the
separate covenants because taken together they cover too long a period
of time, then the last of such covenants in time which, if eliminated,
would permit the remaining separate covenants to be enforced in such
proceeding shall, for the purpose of such proceeding, be deemed
eliminated from the provisions hereof.
NONCOMPETITION AGREEMENT - PAGE 3
(d) Any and all Proprietary Information (hereinafter defined)
which the Pachur Parties heretofore obtained or may hereafter obtain
with respect to the conduct and/or details of any portion of the
business conducted by the HIG Companies or any of their affiliates, or
their respective successors, shall be held inviolate and shall not be
revealed to any competitor of the HIG Companies or any other person,
partnership, firm, corporation or entity. The Pachur Parties shall not
make any use of such Proprietary Information, except for and on behalf
of the HIG Companies. "Proprietary Information" shall mean knowledge
and information, relating to any portion of the business of the HIG
Companies or their affiliates whether written or oral, which: (i) is
not generally available to the public; (ii) gives or may give any
competitive advantage to the HIG Companies with respect to the
operation of the business or their successors; or, (iii) if disclosed,
could give any advantage to a competitor of the business or their
successors or could otherwise be deleterious to any portion of the
business.
(e) During the Restricted Period, the Pachur Parties will not,
directly or indirectly, request, induce, influence or solicit any
employee, customer, or supplier of the HIG Companies or any affiliate
of the HIG Companies known by the Pachur Parties, as the case may be
(through the exercise of due diligence), to cease being an employee,
customer or supplier of the HIG Companies or any affiliate of the HIG
Companies, or to terminate or alter his or her employment or business
relationship with the HIG Companies.
(f) The parties recognize that the goodwill and going concern
value of the business being purchased and acquired by the HIG Companies
are very closely related to the special, unique and extraordinary
knowledge and skill of the Pachur Parties and that the consummation by
the HIG Companies of this Agreement will be in reliance upon the
unconditional assurance of the Pachur Parties that they will fully
comply with the terms of this Agreement, particularly, but not limited
to, such terms as they relate to covenants and undertakings not to
engage in competition or to divulge information. Further, the period of
protection of the HIG Companies against the competition of the Pachur
Parties and the geographical area within which such protection is
essential has been agreed by the parties to be reasonable and
necessary. Therefore, if the Pachur Parties shall at any time breach or
in any manner violate any such covenant, then the HIG Companies in
addition to, but not in substitution for, any and all other relief to
which the HIG Companies may be entitled either at law or in equity,
shall be entitled to equitable relief against the Pachur Parties by way
of injunction to restrain the Pachur Parties from such breach and to
compel compliance by the Pachur Parties with their obligations
hereunder. The Pachur Parties do hereby waive any proof: (i) that such
breach will cause irreparable injury to the HIG Companies, or, (ii)
that there is no adequate remedy at law.
(g) In the event that a court of competent jurisdiction shall
refuse to enforce the provisions of the restrictive covenant set forth
in Section 4(a) of this Agreement because it deems the length of time
or the geographical area to be excessive or unreasonable, then the time
period or the geographical area, or both, shall be deemed to be amended
to conform to such time period and geographical area as such court
shall determine to be reasonable and not excessive.
NONCOMPETITION AGREEMENT - PAGE 4
(h) The period of time applicable to any covenant in Section 4
will be extended by the duration of any violation by the Pachur Parties
of such covenant.
(i) The Pachur Parties will, while the covenant under Section
4 is in effect, give written notice to the HIG Companies, within ten
(10) days after accepting any other employment or consulting
arrangement, of the identity of the Pachur Parties' new employer or
contractor and all of the material duties and services to be provided
by the Pachur Parties in such employment or retention. The HIG
Companies may notify such new employer that the Pachur Parties are
bound by this Agreement and, at the HIG Companies' election, furnish
such new employer with a copy of this Agreement or relevant portion
thereof.
(j) The covenants by the Pachur Parties in this Section 4 are
essential elements of this Agreement, and without the Pachur Parties'
agreement to comply with such covenants, the HIG Companies would not
have entered into this Agreement or employed or continued the
employment of the Pachur Parties. The HIG Companies and the Pachur
Parties have independently consulted their respective counsel and have
been advised in all respects concerning the reasonableness and
propriety of such covenants, with specific regard to the nature of the
business conducted by the HIG Companies.
5. SUCCESSORS.
(a) This Agreement is personal to the Pachur Parties and shall
not be assignable by the Pachur Parties. This Agreement shall inure to
the benefit of and be enforceable by the Pachur Parties' legal
representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon the HIG Companies and their successors and assigns.
(c) The HIG Companies may assign this Agreement to any
successor in interest that agrees to perform this Agreement in the same
manner and to the same extent that the HIG Companies would be required
to perform if no such succession had taken place.
6. MISCELLANEOUS.
(a) Notice. All notices and other communications hereunder
shall be in writing and shall be given by hand delivery to the other
party or by registered or certified mail, return receipt requested,
postage prepaid, addressed as follows:
NONCOMPETITION AGREEMENT - PAGE 5
If to the Pachur Parties:
▇▇▇▇▇▇ ▇▇▇▇▇ Pachur ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ de ▇▇▇▇ ▇▇▇▇▇
TEMPUS CORPORATION, S.A. DE C.V.,
BULCO, S.A. DE C.V.,
Lerdo ▇▇ ▇▇▇▇▇▇ 749
Predio el ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, ▇▇▇▇▇▇
If to the HIG Companies:
HI Metals de Mexico, S.A. de C.V.
c/o Home Interiors & Gifts, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
With Mandatory Copy to:
Chair of Board of Directors
Home Interiors & Gifts, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
or to such other address as either party shall have furnished to the
other in writing in accordance herewith. Notice and communications
shall be effective when actually received by the addressee.
(b) Severability. If any provision of this Agreement is held
to be illegal, invalid or unenforceable under present or future laws
effective during the term of this Agreement, such provision shall be
fully severable; this Agreement shall be construed and enforced as if
such illegal, invalid or unenforceable provision had never comprised a
portion of this Agreement; and the remaining provisions of this
Agreement shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision or by its
severance from this Agreement. Furthermore, in lieu of such illegal,
invalid or unenforceable provision there shall be added automatically
as part of this Agreement a provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
(c) Waiver. The Pachur Parties' or the HIG Companies' failure
to insist upon strict compliance with any provision of this Agreement
or the failure to assert any right the Pachur Parties or the HIG
Companies may have hereunder shall not be deemed to be a waiver of such
provision or right or any other provision or right of this Agreement.
(d) Language. This Agreement is in the English and Spanish
language, and all communications between the parties relative to this
Agreement shall be conducted in
NONCOMPETITION AGREEMENT - PAGE 6
the English language only. Any version of this Agreement in the Spanish
language, whether or not executed by the parties, is and shall be
prepared solely for the benefit of the Pachur Parties and shall be
considered a non-binding translation of the Agreement.
(e) Governing Law; Venue. This Agreement shall be construed,
interpreted and enforced in accordance with the laws of the State of
Texas, without giving effect to the choice of law provisions thereof.
Any judicial proceedings brought by or against any party on any dispute
arising out of this Agreement or any matter related thereto shall be
brought in the state or federal courts of Dallas County, Texas, and no
other court shall have jurisdiction over such a dispute. By execution
and delivery of this Agreement, each of the parties accepts for itself
the exclusive jurisdiction and venue of the aforesaid courts as trial
courts, and irrevocably agrees to be bound by any judgment rendered
thereby in connection with this Agreement after exhaustion of all
appeals taken (or by the appropriate appellate court if such appellate
court renders judgment).
(f) Entire Agreement; Amendments. The provisions of this
Agreement constitute the complete understanding and agreement between
the parties with respect to the subject matter hereof and supersede all
prior agreements and understandings, oral or written, between or among
the parties hereto. This Agreement may not be amended orally, but only
by an agreement in writing signed by the parties hereto or their
respective successors and legal representatives.
(g) Counterparts. This Agreement may be executed in one or
more counterparts, each of which will be deemed to be an original copy
of this Agreement and all of which, when taken together, will be deemed
to constitute one and the same Agreement.
(h) Section Headings, Construction. The captions or headings
of Sections in this Agreement are provided for convenience only and are
not part of the provisions hereof and shall have no force or effect.
Whenever the terms "hereof", "hereby", "herein", or words of similar
import are used in this Agreement they shall be construed as referring
to this Agreement in its entirety rather than to a particular section
or provision, unless the context specifically indicates to the
contrary. Any reference to a particular "Section" or "paragraph" shall
be construed as referring to the indicated section or paragraph of this
Agreement unless the context indicates to the contrary. The use of the
term "including" herein shall be construed as meaning "including
without limitation."
(i) Confidentiality. The parties hereto agree to keep this
Agreement and the subject matter hereof confidential and, except as
required in connection with the enforcement of the terms and provisions
hereof or as required by law, not to disclose same to any third parties
without the prior written consent of the other parties hereto.
(SIGNATURE PAGE FOLLOWS)
NONCOMPETITION AGREEMENT - PAGE 7
EXECUTED to be effective as of the date first set forth above.
THE PACHUR PARTIES: PACHUR:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ PACHUR ▇▇▇▇▇▇▇
-----------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇ Pachur ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ PACHUR ▇▇▇▇▇▇▇
-----------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ de ▇▇▇▇ ▇▇▇▇▇
By: ▇▇▇▇▇▇ ▇▇▇▇▇ Pachur ▇▇▇▇▇▇▇
His: Legal Representative by Power of Attorney
TEMPUS:
TEMPUS CORPORATION, S.A. DE C.V.,
a Mexico corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ PACHUR ▇▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇ Pachur ▇▇▇▇▇▇▇,
Legal Representative
BULCO:
BULCO, S.A. DE C.V.,
a Mexico corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ PACHUR ▇▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇ Pachur ▇▇▇▇▇▇▇,
Legal Representative
NONCOMPETITION AGREEMENT - PAGE 8
THE COMPANIES: HI SERVICES:
HI SERVICES DE MEXICO, S.A. DE C.V.,
a Mexico corporation
By:
-------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Legal Representative
HI METALS :
HI METALS DE MEXICO, S.A. DE C.V.,
a Mexico corporation
By:
-------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Legal Representative
HIG:
HOME INTERIORS & GIFTS, INC.,
a Texas corporation
By:
-------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Senior Vice President
of Finance and Chief Financial Officer
NONCOMPETITION AGREEMENT - PAGE 9
EXHIBIT "A"
List of Tempus' and Bulco's Suppliers
EXHIBIT "A" TO NONCOMPETITION AGREEMENT - PAGE SOLO
EXHIBIT C
[▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ]
ASOCIADOS, LETTERHEAD
January 30, 2003
HI Metals, S.A. de C.V.
c/o Home Interiors & Gifts, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
RE: PURCHASE BY HI METALS, S.A. DE C.V. ("BUYER") OF THE ASSETS
OF TEMPUS CORPORATION. S.A. DE C.V. AND BULCO, S.A. DE C.V.
("SELLERS")
We have acted as counsel for the Sellers in connection with the sale of all the
Sellers's assets to Buyer, pursuant to an Asset Purchase Agreement made as of
January 25, 2003, (the "Asset Purchase Agreement") between Buyer and the Sellers
and Messrs. ▇▇▇▇▇▇ ▇▇▇▇▇ Pachur ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ De ▇▇▇▇ ▇▇▇▇▇ (the
Shareholders"), and an Intangible Asset Purchase Agreement made as of January
25, 2003, (the "Intangible Asset Purchase Agreement") between Buyer and the
Shareholders. The Asset Purchase Agreement and the Intangible Asset Purchase
Agreement are jointly referred as the "Asset Purchase Agreements" Terms used in
this opinion that are defined in the Asset Purchase Agreement and are not
otherwise defined herein will have the same meaning herein as in the Asset
Purchase Agreements.
MATERIALS REVIEWED
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of:
(a) the Asset Purchase Agreements;
(b) the Non-Competition Agreement between Sellers and Buyer made
as of January 29, 2003, (the "Non-Competition Agreement"); and
(c) the Employment Agreement made as of January 29, 2003, (the
"Employment Agreement").
The Asset Purchase Agreements, the Non-Competition Agreement and the
Employment Agreement are hereinafter collectively referred to as the
"Agreements".
ASSUMPTIONS AND FACT RELIANCE
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such public and corporate records, certificates,
instruments and other documents and have considered such questions of law as we
have deemed relevant and necessary as a basis for the opinions hereinafter
expressed. In such examination we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity to original documents of all documents submitted to us as
copies, whether facsimile, photostatic, certified or otherwise.
We have also assumed that each of the Agreements have been duly
authorized, executed and delivered by, and constitute a valid and legally
binding obligation of Buyer, enforceable against Buyer in accordance with its
terms.
OPINIONS
Based and relying upon the foregoing, and subject to the qualifications
hereinafter expressed, we are of the opinion that:
1. The Sellers are corporations incorporated and subsisting under
the laws of the United Mexican States ("Mexico"), and the
Shareholders are citizens of Mexico, of age, and in full
capacity to execute legal documents.
2. The articles of the Sellers contain no restrictions on the
powers that the Seller may exercise on the transfer of assets.
3. The execution, delivery and performance of each of the
Agreements have been duly authorized by all necessary
corporate action on the part of the Sellers.
4. Each of the Asset Purchase Agreements, the Non-Competition
Agreement and the Employment Agreement constitute a valid and
legally binding obligation of the Sellers and the
Shareholders, enforceable against the Sellers and the
Shareholders in accordance with its terms.
5. The execution and delivery by the Sellers and the Shareholders
of each of the Agreements and the performance by the Sellers
and the Shareholders of their respective obligations
thereunder will not:
(a) contravene or results in a breach of or constitute a
default under the articles or by-laws of the Sellers;
or
(b) contravene any law or regulation of the United
Mexican States applicable therein.
6. All necessary consents, approvals, orders and
authorizations of, and registrations, declarations or filings
with, any governmental authority in Mexico required for the
execution and delivery by the Sellers and the Shareholders of
the Agreements and the performance by the Sellers and the
Shareholders of their respective obligations thereunder have
been obtained.
QUALIFICATIONS
The opinions expressed above are subject to the following
qualifications:
(a) this opinion is limited to the laws of Mexico applicable
therein;
(b) the enforceability of each of the Agreements is subject to
applicable bankruptcy, insolvency, reorganization and other
laws of general application limiting the enforcement of
creditors' rights generally; and
(c) the validity and enforceability of provisions inserted in any
agreement or instrument that purport to sever from the
agreement or instrument any provision that is prohibited or
unenforceable under applicable law without affecting the
enforceability or validity of the remainder of the agreement
or instrument would be determined only in the discretion of
the court.
This opinion is furnished solely for the benefit of the addressees in
connection with the purchase of the Assets and may not be circulated to, or
relied upon by, any other person or used for any other purpose.
Yours very truly,
/s/ LIC. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
LIC. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ 717 Sur Col. Ma. ▇▇▇▇▇ Monterrey, N.L. C.P. 64040 Tels/Fax.8344-45-29