EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
BY AND BETWEEN
INVERSIONES HUILLIMAPU S.A. AND UNISERVICE CORPORATION
JANUARY 9, 2002
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement"), is made as of January 9,
2002 between Inversiones Huillimapu S.A., a Chilean company ("Purchaser") and
Uniservice Corporation, a Florida corporation ("Seller").
WHEREAS, Seller is a holding company which owns a 99.9% interest in the
following companies: Kentucky Foods Chile Ltda.; Administradora de Equipos,
Maquinarias y ▇▇▇▇▇▇ Inmobiliarias Ltda.; and Administradora de Servicios de
Personal Millantue Ltda. (collectively, the "Subsidiaries") which are further
described in Exhibit A;
WHEREAS, the Subsidiaries own and operate approximately 30 KFC
restaurants throughout Chile under franchise agreements with Tricon Restaurants
International (the "Business");
WHEREAS, Purchaser desires to acquire and Seller desires to sell its
99.9% ownership interest in the Subsidiaries (the "Equity Interest") in exchange
for the consideration and upon the terms described herein (the "Purchase"); and
WHEREAS, Purchaser and Seller desire to make certain representations,
warranties, covenants and agreements in connection with the Purchase;
NOW THEREFORE, in consideration of the mutual promises, covenants,
provisions and representations contained herein, the parties hereto agree as
follows:
ARTICLE I
THE PURCHASE
1.1 SALE AND DELIVERY OF EQUITY INTEREST. Subject to all the terms and
conditions of this Agreement, Seller shall sell, transfer, convey, assign and
deliver to Purchaser at the Closing (as defined in paragraph 1.2 hereof) and
Purchaser shall purchase, acquire and accept from the Seller certificates for
the Equity Interest duly endorsed by Seller, or accompanied by duly executed
stock powers.
1.2 EFFECTIVE DATE AND CLOSING. The effective date (the "Effective
Date") of this transaction shall be simultaneous with the closing of the share
exchange agreement (the "Share Exchange") between Associated Automotive Group,
Inc. ("AAG") and the Seller. The closing of the transaction contemplated herein
(the "Closing") shall occur at a mutually agreeable time and place, on the
earliest practicable date following the day on which all of the obligations and
conditions precedent herein are complied with but in no event later than the
date of the Share Exchange.
1.3 PURCHASE PRICE. Subject to all of the terms and conditions set
forth in the Agreement and in reliance on the representations, warranties and
covenants hereinafter set forth, Purchaser shall deliver to Seller 825,000
shares of Uniservice Corporation class B common stock held by Purchaser
(hereinafter referred to as the "Purchase Price").
1.4 PAYMENT OF PURCHASE PRICE. Purchaser shall assign, transfer, pledge
and deliver to Seller the Purchase Price. Purchaser agrees and acknowledges that
it shall do all things necessary to perfect Seller's interest in the Purchase
Price within ten (10) days of the date of the execution of this Agreement.
ARTICLE II
REPRESENTATIONS OF SELLER
As an inducement to Purchaser to enter into this Agreement, Seller
represents and warrants to Purchaser as of the Closing the following:
2.1 ORGANIZATION. Each of Seller and the Subsidiaries is a company duly
organized, validly existing, and in good standing under the laws of the
jurisdiction of its incorporation, has all necessary corporate powers to own
properties and to carry on its business as now owned and operated by it, and is
duly qualified to do business and is in good standing in each of the states
where its business requires qualification. To the best of Seller's knowledge and
belief, each of the Subsidiaries is a corporation duly organized, validly
existing, and in good standing under the laws of the jurisdiction of its
incorporation, has all necessary corporate powers to own properties and to carry
on its business as now owned and operated by it, and is duly qualified to do
business and is in good standing in each of the states where its business
requires qualification. Other than the Subsidiaries, Seller has no material
equity or other material ownership interest in any corporation, limited
liability company, partnership, association or other business entity.
2.2 AUTHORITY. The execution of this Agreement and the consummation of
the transactions contemplated herein have been authorized by the directors
subject to Seller and the officers and directors of its Subsidiaries and Seller
has the full power and authority to execute, deliver and perform this Agreement
and this Agreement is a legal, valid and binding obligation of the Seller, and
is enforceable in accordance with its terms and conditions, except as
enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance,
moratorium or other laws generally effecting the rights of creditors and general
principles of equity.
2.3 TITLE TO THE EQUITY INTEREST. Seller owns a 99.9% Equity Interest
in each of the Subsidiaries, which Equity Interest is duly and validly issued,
fully paid and non-assessable. Seller has good and marketable title to the
Equity Interest, free and clear of all debts, liens and encumbrances and, by
virtue of the grant, conveyance, sale, transfer, and assignment of the Equity
Interest hereunder, Purchaser shall receive good and marketable title to the
Equity Interest, free and clear of all debts, liens and encumbrances. As of the
Closing, there shall be no outstanding options, contracts, warrants,
appreciation rights, redemption rights or subscription rights of any nature
relating to the issuance, sale or acquisition of the Equity Interest or the
Subsidiaries.
2.4 ABILITY TO CARRY OUT OBLIGATIONS. The execution and delivery of
this Agreement by Seller and the performance by Seller of its obligations
hereunder will not cause, constitute, or conflict with or result in (a) any
breach or violation of any of the provisions of or constitute a default under
any license, indenture, mortgage, charter, instrument, certificate of
incorporation, bylaw, or other agreement or instrument to which Seller is a
party, or by which it may be bound, nor will any consents or authorizations of
any party other than those hereto be required, (b) an event that would permit
any party to any agreement or instrument to terminate it or to accelerate the
maturity of any indebtedness or other obligation of Seller, or (c) an event that
would result in the creation or imposition of any lien, charge, or encumbrance
on any asset of Seller.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
As an inducement to Seller to enter into this Agreement, the Purchaser
represents and warrants to the Seller as of the date hereof and as of the
Closing the following:
3.1 ORGANIZATION. Purchaser is a corporation duly organized, validly
existing, and in good standing under the laws of Chile, has all necessary
corporate powers to own properties and to carry on its business as now owned and
operated by it, and is duly qualified to do business and is in good standing in
each of the states where its business requires qualification.
3.2 AUTHORITY. The Board of Directors of Purchaser has authorized the
execution of this Agreement and the transactions contemplated herein, and
Purchaser has full power and authority to execute, deliver and perform this
Agreement and this Agreement is the legal, valid and binding obligation of
Purchaser, and is enforceable in accordance with its terms and conditions,
except as enforceability may be limited by bankruptcy, insolvency, fraudulent
conveyance, moratorium or other laws generally effecting the rights of creditors
and general principles of equity.
3.3 TITLE TO THE PURCHASE PRICE. Purchaser owns all of the issued and
outstanding shares of Seller as defined in the Purchase Price ("Purchase
Stock"), which shares are duly and validly issued, fully paid and
non-assessable. Purchaser has good and marketable title to the Purchase Stock,
free and clear of all debts, liens and encumbrances and, by virtue of the grant,
conveyance, sale, transfer, and assignment of the Purchase Stock hereunder,
Seller shall receive good and marketable title to the Purchase Stock, free and
clear of all debts, liens and encumbrances. As of the Closing, there shall be no
outstanding options, contracts, warrants, appreciation rights, redemption rights
or subscription rights of any nature relating to the issuance, sale or
acquisition of the Purchase Stock.
3.4 ABILITY TO CARRY OUT OBLIGATIONS. The execution and delivery of
this Agreement by Purchaser and the performance by Purchaser of its obligations
hereunder will not cause, constitute, or conflict with or result in (a) any
breach or violation of any of the provisions of or constitute a default under
any license, indenture, mortgage, charter, instrument, certificate of
incorporation, bylaw, or other agreement or instrument to which Purchaser is a
party, or by which it may be bound, nor will any consents or authorizations of
any party other than those hereto be required, (b) an event that would permit
any party to any agreement or instrument to terminate it or to accelerate the
maturity of any indebtedness or other obligation of Purchaser, or (c) an event
that would result in the creation or imposition of any lien, charge, or
encumbrance on any asset of Purchaser.
ARTICLE IV
COVENANTS
4.1 RELEASE OF GUARANTIES. Purchaser shall have released Seller of all
obligations, contingent or otherwise, relating to or in any way connected to or
with the Equity Interest or Subsidiaries, including but not limited to any and
all bank guarantees or other guarantees.
4.2 SELLER'S COOPERATION AFTER THE CLOSING; FURTHER ACTION. At any
time, and from time to time after the Closing, the Seller shall execute and
deliver to the Purchaser such other instruments and take such other actions as
the Purchaser may reasonably request more effectively to vest title of the
Equity Interest in the Purchaser and, to the full extent permitted by law, to
put the Purchaser in actual possession and operating control of the
Subsidiaries, the Equity Interest and the Business. Each of the parties hereto
shall use all reasonable efforts to take, or cause to be taken, all appropriate
action, do or cause to be done, all things necessary, proper or advisable under
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applicable laws, and execute and deliver such documents and other papers, as may
be required to carry out the provisions of this Agreement and to consummate and
make effective the transactions contemplated hereby.
4.3 REGULAR COURSE OF BUSINESS. Except as otherwise consented to or
approved by Purchaser in writing, until the Closing, Seller covenants and agrees
(and will cause each of the Subsidiaries to act or refrain from acting where
required hereinafter) that each of the Subsidiaries will operate its respective
business in the ordinary course, diligently and in good faith, consistent with
past management practices.
4.4 TERM OF POWERS-OF-ATTORNEY. The Seller agrees and acknowledges that
the power-of-attorney conferred to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, by resolution of the
Board of Directors of Uniservice Corporation dated June 17, 1998, notarized in
the presence of Santiago Notary Public, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ , continues in full
force and effect for as long as it is necessary for the Seller to legally and
validly transfer under Chilean law the Equity Interests held by the Seller in
the Subsidiaries to the Purchaser has consummated.
ARTICLE V
INDEMNITY
5.1 INDEMNIFICATION BY PURCHASER. Purchaser and each Subsidiary,
jointly and severally, agree to indemnify, defend and hold harmless Seller, and
the respective officers, representatives, agents, employees of the Subsidiaries
and successors and assigns of the Seller from and against:
(1) Any and all losses resulting from any misrepresentation or
breach of any representation or warranty or non-fulfillment of any
covenant or agreement on the part of Purchaser under the terms of this
Agreement;
(2) Any liability or assessment relating to any losses
(including tax liability or assessment) related to Seller, the
Subsidiaries, the Equity Interest or this Agreement or the transactions
contemplated hereby;
(3) All actions, suits, proceedings, arbitration's, demands,
assessments, judgments, costs and expenses, including attorney's fees
and disbursements, incident to the foregoing; and
(4) All claims, demands, losses, costs, expenses, obligations,
liabilities, damages, recoveries and deficiencies, including interest,
penalties, and reasonable attorney fees, that they shall incur or
suffer, which result from or relate to any activities of the
Subsidiaries or Purchaser prior to, on or subsequent to the Closing
Date or which result from or relate to any breach of, or failure by
Purchaser to perform any of its representations, warranties, covenants
or agreements in this Agreement or in any schedule, certificate,
exhibit or other instrument furnished or to be furnished by Purchaser
under this Agreement.
5.2 INDEMNIFICATION BY SELLER.Seller agrees to indemnify, defend and
hold harmless Purchaser, and the respective officers, representatives, agents,
employees of the Purchaser from and against:
(1) Any and all losses resulting from any misrepresentation or
breach of any representation or warranty or non-fulfillment of any
covenant or agreement on the part of Seller under the terms of this
Agreement; and
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(2) Any liability or assessment relating to any losses
(including tax liability or assessment) related to Purchaser or this
Agreement or the transactions contemplated hereby;
(3) All actions, suits, proceedings, arbitration's, demands,
assessments, judgments, costs and expenses, including attorney's fees
and disbursements, incident to the foregoing; and
(4) All claims, demands, losses, costs, expenses, obligations,
liabilities, damages, recoveries and deficiencies, including interest,
penalties, and reasonable attorney fees, that they shall incur or
suffer, which result from or relate to any activities of the Seller
subsequent to the Closing Date or which result from or relate to any
breach of, or failure by Seller to perform any of its representations,
warranties, covenants or agreements in this Agreement or in any
schedule, certificate, exhibit or other instrument furnished or to be
furnished by Seller under this Agreement.
ARTICLE VI
CONDITIONS PRECEDENT TO SELLER'S PERFORMANCE
The Seller's obligations hereunder shall be subject to the
satisfaction, at or before the Closing, of all the conditions set forth in this
Article VI. The Seller may waive any or all of these conditions in whole or in
part without prior notice; so long as such waiver is in writing; and provided,
however, that no such waiver of a condition shall constitute a waiver by the
Seller of any other condition of or any of the Seller's rights or remedies at
law or in equity, if Purchaser shall be in default of any of its
representations, warranties, or covenants under this Agreement.
6.1 PERFORMANCE. Purchaser shall have performed, satisfied, and
complied with all covenants, agreements and conditions required by this
Agreement to be performed or complied with by it, on or before the Closing Date,
and the Representations and Warranties contained in Article III shall be true
and correct as of the Closing.
6.2 ABSENCE OF LITIGATION. No action, suit or proceeding before any
court or any governmental body or authority, pertaining to the transaction
contemplated by this Agreement or to its consummation, shall have been
instituted against any party hereto on or before the Closing Date.
6.3 FAIRNESS OPINION. The Seller shall have received a written opinion
acceptable to the Seller, in its sole discretion, stating that the consideration
to be received by the Seller pursuant to this Agreement is fair to the Seller
and its shareholders from a financial point of view.
6.4 APPROVAL AND CONSUMMATION OF AGREEMENT AND SHARE EXCHANGE. The
Agreement and Share Exchange shall have been adopted by the affirmative vote of
a majority of all the votes cast of the Seller at a special meeting of the
Seller's shareholders, or as otherwise required and in accordance with the
Articles of Incorporation of the Seller and the Florida Business Corporation
Law.
6.5 APPROVAL OF AAG. The Board of Directors of AAG shall have approved
of this Agreement and made a determination that the directors of the Seller
acted in good faith and in the best interest of Seller in all ways related to or
in connection with the transaction contemplated by this Agreement.
6.6 RELEASE OF SELLER. Purchaser and the Subsidiaries shall have
released Seller for all claims of the Subsidiaries and shall have executed a
release substantially in a form approved by the Seller.
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ARTICLE VII
CONDITIONS PRECEDENT TO PURCHASER'S PERFORMANCE
The Purchaser's obligations hereunder shall be subject to the
satisfaction, at or before the Closing, of all the conditions set forth in this
Article VII. The Purchaser may waive any or all of these conditions in whole or
in part without prior notice; so long as such waiver is in writing; and
provided, however, that no such waiver of a condition shall constitute a waiver
by the Purchaser of any other condition of or any of the Purchaser's rights or
remedies at law or in equity, if Seller shall be in default of any of its
representations, warranties, or covenants under this Agreement.
7.1 PERFORMANCE. Seller shall have performed, satisfied, and complied
with all covenants, agreements and conditions required by this Agreement to be
performed or complied with by it, on or before the closing Date, and the
Representations and Warranties contained in Article II shall be true and correct
as of the Closing.
7.2 ABSENCE OF LITIGATION. No action, suit or proceeding before any
court or any governmental body or authority, pertaining to the transaction
contemplated by this Agreement or to its consummation, shall have been
instituted against any party hereto on or before the Closing Date.
ARTICLE VIII
MISCELLANEOUS
8.1 CAPTIONS AND HEADINGS. The Articles and paragraph/section headings
throughout this Agreement are for convenience and reference only, and shall in
no way be deemed to define, limit or add to the meaning of any provisions of
this Agreement.
8.2 NO ORAL CHANGE. This Agreement and any provision hereof, may not be
waived, changed, modified or discharged orally, but it can be changed by an
agreement in writing signed by the party against whom enforcement of any waiver,
change, modification, or discharge is sought.
8.3 WAIVER. Except as otherwise expressly provided herein, no waiver of
any covenant, condition, or provision of this Agreement shall be deemed to have
been made unless expressly in writing and signed by the party against whom such
waiver is charged; and (i) the failure of any party to insist in any one or more
cases upon the performance of any of the provisions, covenants, or conditions of
this Agreement to exercise any option herein contained shall not be construed as
a waiver or relinquishment for the future of any such provisions, covenants, or
conditions, (ii) the acceptance of performance of anything required by this
Agreement to be performed with knowledge of the breach or failure of a covenant,
condition, or provision hereof shall not be deemed a waiver of such breach or
failure, and (iii) no waiver by any party of one breach by another party shall
be construed as a waiver with respect to any other subsequent breach.
8.4 ENTIRE AGREEMENT. This Agreement contains the entire Agreement and
understandings between the parties hereto, and supersedes all prior agreements
and understandings with respect to the subject matter hereof.
8.5 CHOICE OF LAW, JURISDICTION AND VENUE. This Agreement and the
rights and obligations of the parties hereunder shall be governed by and
construed in accordance with the laws of the State of Florida. This Agreement
shall be governed under the laws of the Republic of Chile where it is necessary
to make the Agreement enforcable under Chilean law. Any action at law or in
equity directly or indirectly in connection with, related to or in any way
connected to this Agreement or any provisions hereof, shall be litigated in the
state or federal courts located in the City of Fort Lauderdale and County of
Broward, Florida. Not withstanding the foregoing, any action relating to the
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transfer or ownership of the Subsidiaries may be litigated in the courts located
in the Republic of Chile if required to prove the validity of the transfer of
the Subsidiaries under Chilean law and this Agreement. The parties hereto
irrevocably waive any rights such party may otherwise have to transfer or change
the venue of any litigation brought or arising in connection with this
Agreement.
8.6 COUNTERPARTS. This Agreement will be executed simultaneously in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
8.7 NOTICES. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given on the date of receipt if served personally on the party to whom notice is
to be given, by telecopy or telegram, or mailing if mailed to the party to whom
notice is to be given, by first class mail, registered or certified, postage
prepaid, and properly addressed as follows:
PURCHASER: Inversiones Huillimapu S.A.
▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇▇▇▇ - ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President
SELLER: Uniservice Corporation
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
8.8 BINDING EFFECT. This Agreement shall inure to and be binding upon
the heirs, executors, personal representatives, successors and assigns of each
of the parties to this Agreement.
8.9 MUTUAL COOPERATION. The parties hereto shall cooperate with each
other to achieve the purpose of this Agreement, and shall execute such other and
further documents and take such other and further actions as may be necessary or
convenient to effect the transaction described herein.
8.10 ANNOUNCEMENTS. Purchaser and Seller will consult and cooperate
with each other as to the timing and content of any announcements of the
transactions contemplated hereby to the general public or to employees,
customers or suppliers. Except to the extent that the parties consent in writing
otherwise, no party to this Agreement shall make, or cause to be made, any press
release or public announcement in respect of this Agreement or the transactions
contemplated hereby or otherwise communicate with any news media. Nevertheless,
the parties agree that the Seller and the Purchaser or any affiliate thereof may
make such disclosure (on Form 8-K, by press release or otherwise) regarding the
terms of this Agreement and the transactions contemplated hereby as it deems
necessary to comply with the applicable securities laws or the rules and
regulations of the NASDAQ.
8.11 EXPENSES. Except as specifically provided in this Agreement, all
direct costs and expenses including legal, and any other out-of-pocket expense
incurred by Seller, in connection with this transaction, shall be paid by AAG.
All costs and expenses including legal, accounting and any other out-of-pocket
expenses incurred by the Purchaser, in connection with this Agreement or Chilean
operations, shall be paid by the Purchaser.
8.12 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties of the parties set forth in Articles II and III shall not survive
the Closing. The covenants, agreements and indemnities set forth in Articles IV,
V, and VII shall survive the Closing.
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8.13 ASSIGNMENT. This Agreement may not be assigned by operation of law
or otherwise by the Seller or the Purchaser; provided, however, that Purchaser
may assign its rights and obligations to any subsidiary or affiliate of
Purchaser, provided however that such assignment shall not release the Purchaser
of it's obligations hereunder and Purchaser shall guarantee the obligation of
any assignee.
8.14 TERMINATION. This Agreement may be terminated prior to the
Effective Date; (a) by mutual consent of the Seller and the Purchaser if the
Boards of Directors of each so determines; or (b) by Seller if the Share
Exchange is not consummated.
AGREED TO AND ACCEPTED as of the date first above written.
PURCHASER: HUILLIMAPU S.A.
By:/s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
SELLER: UNISERVICE CORPORATION
By:/s/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Financial Officer
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Exhibit A
Kentucky Foods Chile Limitada, a limited liability company organized under
the laws of Chile. Its original bylaws, under the original name of
Alimentos Merced S.A. care evidenced in a notarized instrument executed in
the presence of Santiago Notary ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Mackenna dated November
6, 1986, registered in folio 21303 No. 11533 with the Commerce Registry
kept by the Santiago Real Estate Registrar for 1986. The company's present
registration under the name of Kentucky Foods Chile Limitada is in folio
9,521 No. 7579 with the same Registry and Registrar for the year 2000.
Administradora de Equipos, Maquinarias y ▇▇▇▇▇▇ Inmobiliarias Limitada, a
limited liability company organized under the laws of Chile, the
organization of which is evidenced in a notarized instrument dated June 5,
2000 in the presence of Santiago Notary, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Laso, registered in
folio 16,370 No. 13202 with the Commerce Registry kept by the Santiago Real
Estate Registrar for 2000.
Administradora de Servicios de Personal Millantue Limitada; a limited
liability company organized under the laws of Chile, the organization of
which is evidenced in a notarized instrument dated June 5, 2000 in the
presence of Santiago Notary ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, registered in folio 16,372
No. 13,203 with the Commerce Registry kept by the Santiago Real Estate
Registrar for 2000.
