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EXHIBIT 99.2
STOCK PURCHASE AGREEMENT
Stock Purchase Agreement entered into between:
Vendor S.A. de C.V. (hereinafter referred to as "SELLER"), as seller,
represented by Messrs. Gerardo Candano Conesa and Hugo Chapa Gamboa;
Outdoor Systems Mexico, S.A. de C.V. (hereinafter referred to as "BUYER"), as
buyer, represented by Mr. Luis A. Duarte Coppel;
pursuant to the following Declarations and Clauses:
DECLARATIONS
I. Seller declares through its representatives that:
a. It was originally incorporated under the corporate name of
Pinturas y Decoraciones, S.A. pursuant to the laws of the United Mexican States
(hereinafter referred to as "MEXICO"), as evidenced in public instrument number
10,737, dated October 27, 1937, granted before Mr. Rogelio R. Pacheco, then
Notary Public number 18 of the Federal District, which first notarial copy was
recorded in the Public Registry of Commerce of said city, under number 476, page
207, volume 102 of the Third Book, on November 19, 1937.
b. It is the registered owner of 997 (nine hundred and ninety
seven) Series "A" shares and 49,000 (forty nine thousand) Series "B" shares
(hereinafter collectively referred to as the "SHARES") which represent 99.99%
(ninety nine point ninety nine percent) of the capital stock of Servicios
Administrativos America, S.A. de C.V. (hereinafter referred to as the
"COMPANY"), a corporation organized and in operation under the laws of Mexico.
c. The Shares have been validly issued, are fully paid and
authorized and free of any and all liens and encumbrances, and there is no
prohibition or legal or contractual restriction on the sale of the Shares
pursuant to this Agreement or on the exercise by Buyer of the rights derived
therefrom.
d. The Company is the legitimate and sole owner of all the
assets (hereinafter referred to as the "ASSETS") used in the operation of its
business, including but not limited to: (i) cash, investments and account
receivables as described
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in the Financial Statements (as defined herein below); (ii) goods, office
furniture, computers, stationary, vehicles, materials and other tangible assets
as described in the document attached to this Agreement as EXHIBIT "I.D.(A)";
and (iii) intangible assets, licenses, operation permits and intellectual
property rights as described in the document attached to this Agreement as
EXHIBIT "I.D.(B)".
e. The Assets are free of all kinds of liens, pledges,
mortgages or encumbrances, therefore, same are not securing the payment of any
kind of mercantile, civil, labor or tax obligations.
f. Except as described in the document attached to this
Agreement as EXHIBIT "I.F.", Seller has no knowledge of any kind of litigation,
lawsuit, claim, procedure, action, dispute or investigation in process or to be
filed in connection with the Company, the Shares or the Assets.
g. The document attached to this Agreement as EXHIBIT "I.G."
lists all material agreements entered into by the Company. Except for the
agreements listed in EXHIBIT "I.G", the Company is not a party to any other
material contract or agreement that is not in line with its ordinary course of
business. The Company has not agreed to any modifications to the agreements
listed in EXHIBIT "I.G.", which have or may have a material adverse effect over
its Assets. The Company is not in default of its obligations under any material
agreement, covenant or contract which default may have a materially adverse
effect over the Company's financial condition.
h. The name of each Bank or depository in which the Company
maintains any savings and bank accounts, trust accounts or safety deposit boxes,
and the name of all persons authorized to draw thereon or have access thereto
are listed in EXHIBIT "I.H." attached to this Agreement.
i. The audited financial statements of the Company as of
December 31, 1997 attached to this Agreement as EXHIBIT "I.I.(A)" as well as the
proforma financial statements of the Company as of June 30, 1998 attached to
this agreement as EXHIBIT "I.I.(B)" (hereinafter collectively referred to as the
"FINANCIAL STATEMENTS") accurately represent the financial position and the
value of the Assets and liabilities of the Company as of the date thereof.
j. As from the date of the Financial Statements until the date
hereof, there have been no changes in the
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financial conditions, business, net worth, Assets, obligations or liabilities
(fixed or contingent) of the Company, which have had or may have a materially
adverse financial effect on the business, Assets, financial condition or
operations of the Company, and there has been no occurrence or circumstance
which might reasonably be expected to result in any such adverse financial
effect after the date of this Agreement. Since the date of the Financial
Statements to the date of execution hereof the business of the Company has been
conducted only in the ordinary and usual course of business and no event or
transaction (other than as provided herein) has occurred or been entered into
outside the ordinary course of business.
k. Except as described in the document attached to this
Agreement as EXHIBIT "I.K.(A)", as of the date hereof, the Company has prepared
and filed as provided by law, with all appropriate governmental authorities,
including tax, customs, social security, national housing fund (Infonavit),
retirement savings fund and other pertinent authorities, all returns and other
returns required to be filed, and has paid or accrued in full all taxes,
contributions, duties, interests, penalties or assessments (hereinafter
collectively referred to as "TAXES") due to, or claimed to be so due by any such
authorities. Except as described in the document attached to this Agreement as
EXHIBIT "I.K.(B)", the Company is not a party to any pending action or
proceeding, nor it has been notified that any such action or proceeding is
threatened by any governmental authority for the assessment or collection of any
Taxes, and no claim for assessment or collection of any Taxes has been asserted
against the Company.
l. As of the date of this Agreement and not taking into
consideration the employer's substitution referred to in Recital N. herein
below, the Company employs: (i) 300 union workers (hereinafter referred to as
the "UNION WORKERS") who have the rights and are granted the fringe benefits
referred to in the bargaining agreements entered into with the respective unions
from the cities in which the Company has an office as described in the document
attached to this Agreement as EXHIBIT "I.L." and (ii) 211 non-union employees
(hereinafter referred to as the "NON-UNION EMPLOYEES" and, together with the
Union Workers, the "EMPLOYEES"), which have the rights and are granted the
fringe benefits referred to in the individual employment agreements entered into
with each of such Non-union Employees.
m. Except for as described in EXHIBIT "I.M." attached to this
Agreement, the wages and other fringe
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benefits of the Employees have not been modified since April 1, 1998.
n. On the date hereof, the Company as substitute employer
entered into with MM Billboard, S.A. de C.V., as substituted employer, an
employer substitution agreement (hereinafter referred to as the "EMPLOYER
SUBSTITUTION AGREEMENT") in connection with the Union Employees and the
Non-union Employees of MM Billboard, S.A. de C.V., a copy of which is attached
to this Agreement as EXHIBIT "I.N.".
o. On the date hereof, the Company and Vendor, S.A. de C.V.
entered into a Termination Agreement of the Administrative Services Agreement
dated February 4, 1989.
p. The entering into this Agreement does not constitute any
violation of Seller's charter and bylaws, nor any other agreement or obligation
assumed by Seller, and the entering into of this Agreement and the sale of the
Shares will not cause the breach or early termination of any obligation of
Seller, or will give right to any third party to claim a breach or early
termination of said agreements and obligations.
q. It has obtained the corporate authorizations needed to
enter into this Agreement, which authorizations have not been revoked nor
restricted in any manner whatsoever.
r. Its representatives have sufficient authority to bind it
pursuant to this Agreement as evidenced in public instrument number 50,460,
dated June 19, 1998, granted before Rafael Manuel Oliveros Lara, Notary Public
number 45 of the Federal District, which authority has not been revoked, limited
or modified in any manner whatsoever.
II. Buyer declares through its representative that:
a. It is a corporation duly incorporated pursuant to the laws
of the Mexico, as evidenced in public instrument number 48,476, dated May 28,
1998, granted before Mr. F. Javier Gutierrez Silva, Notary Public number 147 of
the Federal District, which first notarial copy is pending registration in the
Public Registry of Commerce of said city by reasons of its recent incorporation.
b. It has the corporate authorizations needed to enter into
this Agreement, which authorization have not been revoked nor restricted in any
manner whatsoever.
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c. Its representative has sufficient authority to bind it
pursuant to this Agreement as evidenced in the public instrument referred to in
Buyer's Declaration II.A., which authority has not been revoked or limited in
any manner whatsoever.
In view of the foregoing Declarations, the parties agree on
the following:
CLAUSES
FIRST. STOCK PURCHASE. Seller will sell the Shares to Buyer on
the Closing Date (as defined herein below), and Buyer will purchase the Shares,
on the understanding that the Shares are transferred to Buyer with everything
that by fact and by right corresponds free of all kinds of liens and
encumbrances. Seller will deliver to Buyer on the Payment Date (as defined
herein below) the share certificates representing the Shares, duly endorsed in
property in favor of Buyer.
For the purposes of this Agreement, the terms "CLOSING DATE"
and "PAYMENT DATE" will have the same meaning as described in the Asset Purchase
and Assignment Agreement dated June 4, 1998, entered into among Seller, Buyer,
Outdoor Systems, Inc., Promoindustrias Metropolitanas, S.A. de C.V., Televisa,
S.A. de C.V. and Mr. Francisco A. Gonzalez Sanchez.
SECOND. PRICE. The total price in which Seller sells and Buyer
purchases the Shares (hereinafter referred to as the "PRICE"), is the amount of
US$42,591 (Forty Two Thousand Five Hundred and Ninety One Dollars 00/100 U.S.
Currency), equivalent to Ps$382,018.29 (Three Hundred and Eighty Two Thousand
Eighteen Pesos 29/100 Mexican Currency), at a conventional exchange rate of
Ps$8.9684 (Eight Pesos 9684/100 Mexican Currency) per US$1 (One Dollar 00/100
U.S. Currency).
THIRD. FORM OF PAYMENT. The Price will be paid by Buyer on the
Payment Date, in Dollars, currency of the United Sates of America, in one
installment, by means of a wire transfer for the total amount, in immediately
available funds to Seller's account previously notified to Buyer in the City of
New York, United States of America.
FOURTH. DELIVERY OF DOCUMENTS. Seller will deliver and
transfer to Buyer on the Payment Date, all books, records and documents related
to the Company, including (i) all computerized records and other computerized
media storage and the software used in connection therewith; (ii) all technical
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and contractual documentation relating to the Assets; and (iii) all agreements,
contracts, documents and records relating to sales, purchase of materials,
supplies and services, dealings with suppliers, customers and distributors, and
all other existing documents and records related to the Company's business.
FIFTH. INDEMNIFICATION. (A) Seller agrees to indemnify Buyer
in case of eviction (saneamiento par el caso de eviccion) in connection with the
Shares pursuant to the applicable laws and agrees to hold Buyer harmless of any
and all kinds of claims, lawsuits, costs, expenses (including reasonable
attorneys' fees), damages and/or consequential damages arising from or as a
consequence of same.
(B) Seller shall indemnify and hold Buyer harmless of any and
all kinds of claims, lawsuits, costs, expenses (including reasonable attorneys'
fees), damages and/or consequential damages arising from any act occurred before
the date of this Agreement in connection with: (i) any kind of liabilities of
the Company, whether absolute, fixed, contingent or otherwise, which are not
fully reflected in the Financial Statements, including without limitation,
taxes, customs, labor, social security, national housing fund and retirement
system fund; (ii) any salary or fringe benefit owed to any of the Employees
accrued prior to the execution hereof, including without limitation, salaries,
fringe benefits, christmas and vacation bonuses, indemnities and other labor
liabilities, on the understanding that such labor liabilities shall not include
any amounts due by the Company to any of the Employees derived from seniority of
such Employees as well as the Company's labor liabilities derived from the
Employer Substitution Agreement; and (iii) any kind of liabilities, liens or
encumbrances in connection with the Shares.
(C) Buyer shall indemnify and hold Seller harmless of any and
all kinds of claims, lawsuits, costs, expenses (including reasonable attorneys'
fees), damages and/or consequential damages arising from the Employer
Substitution Agreement, including but not limited to salaries, fringe benefits,
christmas and vacation bonuses, indemnities and other labor liabilities of Buyer
pursuant to the Employer Substitution Agreement.
(D) Without prejudice of the provisions in paragraphs (A), (B)
and (C) herein, in the event an indemnification pursuant to said paragraphs
arises from a lawsuit or a claim from a third party, the party obliged to pay an
indemnification pursuant to paragraphs (A), (B) or (C) herein (hereinafter
referred to as the "OBLIGED PARTY") will
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have the right to defend itself pursuant to the following provisions:
(i) The party receiving the lawsuit or claim (hereinafter
referred to as the "DEFENDANT") shall deliver copy of said lawsuit or claim to
the Obliged Party at least 5 (five) working days before the term to challenge
said lawsuit is due. In the event the Company is the one receiving the lawsuit
or claim, it will be understood that Buyer is the Defendant for the purposes set
forth herein.
(ii) The Obliged Party must give written notice to Defendant
on the next working day after the date it received copy of the lawsuit or claim,
stating if it wishes to defend itself, in which case it shall appoint the person
in charge to file for defense.
(iii) In the event the Obliged Party notifies the Defendant
its willingness to defend itself, the Defendant will cause the Company to grant
the necessary powers of attorney to the persons appointed by the Obliged Party
for the purposes of filing for defense. Defendant will provide the necessary
elements for the defense as requested by the Obliged Party and will not
negotiate any settlement or agreement with claimant without the approval from
the Obliged Party.
(iv) In the event the Obliged Party files for defense,
Defendant's participation in the corresponding trail will be at its own expense.
(v) In the event the Defendant does not deliver a copy of the
lawsuit or claim pursuant to paragraph (i) herein or settles with claimant
without the Obliged Party's approval, the Obliged Party will be relieved from
its indemnification obligations under paragraphs (A), (B) or (C) herein.
SIXTH. ASSIGNMENT. The parties agree that they shall not
assign by any means the rights and obligations provided for herein, without the
prior written consent of the other party.
SEVENTH. EXPENSES. Except for anything to the contrary herein,
the parties agree that they will each bear their own expenses incurred in
connection with this Agreement and the transactions described herein.
EIGHTH. TAXES. The parties agree that any tax levied over the
transactions described herein will be paid by the corresponding party pursuant
to applicable law.
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NINTH. AMENDMENTS. Any amendments to the terms and conditions
herein will be made in a writing signed by the parties hereto.
TENTH. EXHIBITS. The Exhibits described in this Agreement
constitute an integrated part of same. Such Exhibits are the following:
Exhibit "I.d.(a)" List of goods, office furniture, computers,
stationary, vehicles, materials and other
tangible assets of the Company
Exhibit "I.d.(b)" List of intangible assets, licenses, operation
permits and industrial property rights
Exhibit "I.f." Lawsuits, claims, procedures, actions or
investigations in connection with the Company,
the Shares and the Assets
Exhibit "I.g." List of outstanding agreements entered into by
the Company
Exhibit "I.h" List of savings and bank accounts, trust
accounts or safety deposit boxes, and the name
of all persons authorized to draw thereon or
have access thereto
Exhibit "I.i.(a)" Audited Financial Statements as of December
31, 1997
Exhibit "I.i.(b)" Financial Statements as of June 30, 1998
Exhibit "I.k.(a)" Exceptions to the fulfillment of obligations
before fiscal, customs, social security,
workers housing fund or retirement system
authorities
Exhibit "I.k.(b)" Procedures against the Company in connection
with the payment of taxes
Exhibit "I.l." List of bargaining agreements entered into
with the respective Unions
Exhibit "I.m." Amendments to salaries and fringe benefits of
the Employees as of April 1, 1998
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Exhibit "I.n." Copy of the Employer Substitution Agreement
TENTH. NOTICES. All notices that the parties wish to make or
which must be made in connection with this Agreement, must be in writing and
each party should obtain evidence that the notice was received by the other
party. For that purpose and until further a notice of a new address is made, the
parties state as their addresses the following:
"SELLER"
Vendor, S.A. de C.V.
Vasco de Quiroga 2000 Ed. "A" Piso 4
Lomas de Santa Fe
01210 Mexico, D.F.
Attention: Mr. Gilberto Perezalonso
Phone No.: (525) 261-2519
Facsimile: (525) 261-2518
WITH A COPY TO :
Mijares, Angoitia, Cortes y Fuentes, S.C.
Prado Norte No. 305
Col. Lomas de Chapultepec
11000 Mexico, D.F.
Attention: Mr. Alfonso de Angoitia
Phone No.:(525) 520-0771
Facsimile:(525) 520-1065
"BUYER"
Outdoor Systems Mexico, S.A. de C.V.
Paseo de los Tamarindos 400
Torre B, Piso 8
Bosques de las Lomas
Mexico, D.F. 05120
Attention: Mr. Jorge Cervantes Trejo
Phone No.: (525) 267-4500
Facsimile: (525) 267-5498
WITH A COPY TO:
Outdoor Systems, Inc.
2502 Black Canyon Highway
Phoenix, Arizona 85009
Attention: Mr. Arturo Moreno
Phone No.: (602) 248-8181
Facsimile: (602) 433-2482
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Jauregui, Navarrete, Nader y Rojas, S.C.
Paseo de los Tamarindos 400
Torre B, Piso 8
Bosques de las Lomas
Mexico, D.F. 05120
Attention: Mr. Miguel Jauregui Rojas
Phone No.: (525) 267-4500
Facsimile: (525) 267-5498
ELEVENTH. APPLICABLE LAW. The parties agree that this
Agreement will be governed by the laws of Mexico, Federal District.
TWELFTH. JURISDICTION. For the performance and enforcement of
this Agreement the parties expressly submit to the jurisdiction of the competent
courts located in Mexico, Federal District, expressly waiving their rights to
any other jurisdiction that may apply to them by reason of their present or
future domiciles or for any other reason.
The parties, acknowledging the terms and legal conditions of
each and every Declaration and Clause of this Stock Purchase Agreement, have
caused its execution in four copies in the city of Mexico, Federal District, on
July 1, 1998.
"SELLER" "BUYER"
Vendor S.A. de C.V. Outdoor Systems
Mexico, S.A. de C.V.
By: By:
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Name: Gerardo Candano Conesa Name: Luis A. Duarte Coppel
Title: Attorney-in-fact Title: Attorney-in-fact
By:
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Name: Hugo Chapa Gamboa
Title Attorney-in-fact
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CERTIFICATE OF SECRETARY
OF
OUTDOOR SYSTEMS, INC.
I hereby certify that Outdoor Systems, Inc. has taken reasonable
measures to ensure that the English translation of the Stock Purchase Agreement,
dated June 4, 1998, to which this Certificate is attached, is a fair and
accurate English translation of the original Spanish language document.
Dated: July 16, 1998
/s/ Bill M. Beverage
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Bill M. Beverage
Secretary of Outdoor Systems, Inc.
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