Form of Purchase Agreement

EX-10.1 2 awsm-ex101_6.htm EX-10.1 awsm-ex101_6.htm

 

 

Exhibit 10.1

City of Buenos Aires, January 31, 2020

Messrs.

Oneclick International LLC

2001 NW 84 Ave, Doral FL 33122,

United States of America

 

Oneclick License LLC

2001 NW 84 Ave, Doral FL 33122,

United States of America

 

Ref.: Offer No. 01/2020

Dear Sirs/Madams:

 

Mariano Andrés Turinetto, residing at Mendoza Nº 953, City of Carcarañá, Province of Santa Fe, holder of Identity Document (DNI) No. 25979504, Tax Identification Number (CUIT) 20-25979504-5 and Hernán Gustavo Dreier, residing at Pje. Stella 9096, City of Rosario, Province of Santa Fe, holder of Identity Document (DNI) 25979473, Tax Identification Number (CUIT) 20-25979473-1 (hereinafter, the “Assignees”) hereby write to OneClick International LLC, OneClick License LLC (hereinafter, the “Assignors”, and together with Assignees, the “Parties”, or individually, a “Party”), in order to submit the following irrevocable purchase offer of all quotas in OneClick Argentino S.R.L. (the “Company”), owned by the Assignors, subject to the term and conditions included in Annex I attached hereto (the “Offer”).

The Offer shall become effective upon receipt thereof by Assignors and shall be valid for a term of seven (7) business days (the “Effective Term”). The Offer shall be deemed validly accepted by Assignors only if, within the Effective Term, Assignors send Assignees a letter informing acceptance thereof (the “Acceptance”).

Upon Acceptance by Assignors in the form provided hereinabove, the Offer shall be the only agreement between Assignors and Assignees in connection with the purpose thereof and shall prevail over any prior written or oral agreement between Assignees and Assignors related with the transfer of quotas of Assignors (the “Agreement”). The application of section 982 and related provisions of the Argentine Civil and Commercial Code in connection with partial agreements is expressly excluded and no agreement shall exist until Acceptance of this Offer.

 

Sincerely,

 

 

__________________________________________________

Sr. Mariano Andrés TurinettoSr. Hernán Gustavo Dreier

Identity Document (DNI) No. 25979504Identity Document (DNI) No. 25979473

 

 

 

 

 

 

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ANNEX I

TERMS AND CONDITIONS OF THE TRANSFER OF QUOTAS

 

WHEREAS:

 

 

 

NOW THEREFORE, the Parties agree to execute this Agreement subject to the terms and conditions below:

 

DEFINITIONS

 

“Agreement” has the meaning assigned to such term in the heading of the Offer.

“Applicable Laws” means the effective laws in the Argentine Republic enacted by legislative and/or executive branches of federal, provincial and/or municipal governments.

“Assignees” has the meaning assigned to such term in the Offer.

“Assignor’s Indemnitee” has the meaning assigned to such term in Section 7.1.

“Assignors” has the meaning assigned to such term in the Offer.

“Business Day” means any day, other than a Saturday, a Sunday or any day on which banks are authorized or required to be closed in the Argentine Republic and/or in any other territory where the obligation must be performed.

“Closing Date” means January 31, 2020.

“Closing” has the meaning assigned to such term in Article III.

“Company” has the meaning assigned to such term in the heading of the Offer.

“Confidential Information” has the meaning assigned to such term in Section 8.4.

“Control” has the meaning assigned to such term in section 33 of the Argentine Companies Law. The terms “Controlling” and “Controlled” shall have correlative meanings.

 

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“Damages” means any liability, claim, contingency, demand, obligation, debt, action, losses, fines, penalties, expenses or damages, extending to any cost or expense associated with such concepts, (including reasonable expenses and defense costs, action in lawsuits or administrative proceedings or arbitration, including without limitation, reasonable attorneys and experts fees and justice fees).

“Debt” has the meaning assigned to such term in Article IV(ix).

“Dollars” or “USD” means the legal tender of the United States of America.

“GAAP” means the generally accepted accounting principles of the Argentine Republic.

“Guarantee” has the meaning assigned to such term in Article IV(ix).

“Ingram” has the meaning assigned to such term in Section 3.2(viii).

“Lien” means pledges, charges, restraints, mortgages, legal or administrative attachment, liens, easements, vices, security interests, claims, third party contractual rights, options and restrictions of any kind, including any limitation or restriction to ownership, transfer or availability of Quotas.

“Parties” has the meaning assigned to such term in the heading of this Agreement.

“Pesos” or “ARS” means the effective legal tender in the Argentine Republic.

“Price” has the meaning assigned to such term in Section 2.1.

“Public Registry” means the Public Registry of Commerce of the jurisdiction where the Company is domiciled.

“Quotas” has the meaning assigned to such term in Preliminary Consideration A of the Agreement.

“Receiving Party” has the meaning assigned to such term in Section 8.4 of the Agreement.

“Share Capital Increase” has the meaning assigned to such term in Section 3.2(i).

“Trademarks” means all trademarks described in Annex 3.2(iii).

 

ARTICLE I

ASSIGNMENT OF QUOTAS

 

Section 1.1. Purpose. Subject to, and in accordance with, the terms and conditions provided hereunder, effective on the Closing Date Assignees acquire from Assignors, and Assignors sell, assign and transfer to Assignees, for the consideration specified in ARTICLE II of this Agreement, the Quotas, including in this purchase transaction, all voting rights and other political rights and economic rights inherent to or deriving from the ownership of the Quotas. Each Assignor sells, assigns and transfers to Assignees,

 

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effective on the Closing Date, the number of Quotas specified below:

 

 

ARTICLE II

PURCHASE PRICE OF QUOTAS

 

Section 2.1. Price. The total price to be paid by Assignees to Assignors for the purchase of Quotas shall be equivalent to US$ 10 (Ten United States Dollars), comprising all the assumed obligations by the Asignees pursuant to the Agreement (hereinafter, the “Price”). The monetary component of the Price shall be distributed in the same proportion that Quotas sold by each of them. For purposes of determining the Price, the Parties have considered that this shall be an “as is, where is” transaction. The Price shall not be subject to any adjustment whatsoever.

 

Section 2.2. Form of payment. The monetary component of the Price shall be paid on the Closing Date in United States Dollars by bank transfer to the bank account indicated by Assignors. Receipt of the funds of the Price at the bank accounts issued by the bank shall be sufficient receipt and evidence of payment. All expenses and/or taxes arising from the payments established herein shall be exclusively borne by Assignees. Alternatively, payment of the monetary component of the Price may be made, on the Closing Date, by delivery under receipt of United States Dollars bills, or one or more checks in Pesos at the exchange rate “Seller” of the Banco de la Nación Argentina published by the newspaper Ámbito Financiero, the business day immediately before the payment date. In the event that the payment of the monetary component is made by the delivery of one or more checks, said instrument (s) must be issued in favor of the Assignors with an identical date to the Closing Date. In any event, for purposes of payment of the monetary component of the Price, deferred-payment checks shall not be issued.

 

 

ARTICLE III

CLOSING

 

Section 3.1. Closing. The closing of the Agreement (the “Closing”) shall be on the Closing Date at Bruchou, Fernández Madero & Lombardi, with offices located at Ing. E. Butty 275, City of Buenos Aires, at 11:00 am.

 

Section 3.2. Closing Actions. On the Closing Date, the following actions shall be carried out:

 

 

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ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF ASSIGNORS

 

The Parties express that the Assignees shall execute this Agreement and the payment of the Price, among other things, in consideration for the representations and warranties made by Assignors, jointly and severally, for the benefit of Assignees, as an essential element for the execution of this Agreement in ARTICLE IV:

 

 

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ARTICLE V

REPRESENTATIONS AND WARRANTIES OF ASSIGNEES

 

The Parties express that the Assignors shall execute this Agreement, among other things, in consideration for the representations and warranties made by Assignees, for the exclusive benefit of Assignors, as an essential element for the execution of this Agreement in ARTICLE V:

 

 

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ARTICLE VI

OTHER UNDERTAKINGS

Section 6.1. Consent. Parties shall make all commercially reasonable efforts to obtain the consent of Apple, Inc. in relation to the authorization to distribute official products. The Assignors will not have any responsibility towards the Company and/or the Assignees in case the license referred to in this section is not granted. Notwithstanding the foregoing, Assignors have sent to Apple, Inc. the communication indicated in Clause 4.7 to the Apple Authorized Reseller Agreement dated February 26, 2018, entered into between the Company and Apple, Inc.

 

Section 6.2. Collaboration. Notwithstanding the aforementioned in Section 6.1, Assignors will provide the Assignees with the collaboration that they reasonably require to obtain the Apple, Inc. license and the registration of the transfer of Quotas with the Public Registry, where appropriate, providing information and / or providing and subscribing in due time and form the documentation required by Assignees thereon.

 

Section 6.3. Notifications to AFIP. Within ten (10) business days from the Closing Date, the Parties and the Company shall jointly submit the notification of sale of the Quotas by electronic data transfer through the website of the Argentine Federal Tax Authority (AFIP) (www.afip.gov.ar), in accordance with the provisions of AFIP General Resolution 3293/2012. For such purpose, Parties undertake to exchange in a timely manner the information necessary to comply in a coordinated manner with the obligation to report set forth in AFIP General Resolution 3293/2012.

 

Section 6.4. Ratification. The Assignees undertake, in the opportunity to consider and approve the Company’s financial statements for 2019, to ratify the approval of the management of Messrs. Reinier Cornelis Albert Voigt and Vernon Allen Lo Forti, in their capacity as president and alternate manager of the Company, respectively.

 

Section 6.5. Data protection and access. Assignees undertake to protect accounting or other information required by law for the term of 10 (ten) years, or the longer required by law, and to provide access to all information upon requirement by the Assignors on reasonable grounds. Likewise, the Assignees undertake to collaborate with Assignors, and make their dependents collaborate, to the protection and provision of all information necessary to prepare financial statements and/or, where appropriate, other accounting documents of the economic group of Assignors, for the year 2019 and January 2020, and if

 

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necessary, with respect to the previous periods as from the date Assignors became quotaholders of the Company. In the case that, the access to information and/or collaboration required by the Assignors for the audit of the fiscal year 2019 and January 2020, requires that Fidem Partners were hired, the Assignees shall cause the Company to hire Fidem Partners and the Company shall bear it costs.

 

Section 6.6. Representations. The Assignees expressly undertake, within a reasonable period as from the Closing Date, to carry out the necessary steps for the modification and / or replacement of authorities or representatives of the Company before banks and any other institution in which Messrs. Alfredo Carrasco, Mauricio Díaz, Felipe Rezk, Reinier Cornelis Albert Voigt and Vernon Allen Lo Forti appear as representatives of the Company.

 

Section 6.7. Debt payment.

(i) Assignees shall cause the Company to pay the commercial debt to Ingram and Tech Data incurred in before the Closing Date for the total amount of US$ 320,715.10 (United States Dollars Three Hundred Twenty Thousand Seven Hundred Fifteen with 10/100), pursuant to payment plan agreed on with Ingram, but in no event beyond the 30 (thirty) Business Days as from the Closing Date, relieving Assignors of all responsibility thereon. Consequently, on the Closing Date, Assignees shall grant in favor of OneClick International LLC, personal guarantees on the Debt, to the satisfaction of OneClick International LLC, which shall be valid until payment in full of the Debt, or until the Assignors receive a written letter from Ingram and Tech Data releasing the Guarantee and releasing OneClick International LLC from any claim related to the Debt, whichever occurs first.

(ii) In the event that within the period specified in (i) above, the Company and/or the Assignees do not comply with the payment of the Debt and/or the Assignors do not receive a written letter from Ingram and Tech Data releasing the Guarantee and releasing OneClick International LLC from any claim related to the Debt, the Assignors shall have the right to retain and keep all existing inventory in all stores of the Company at the expiration date of such 30 (thirty) Business Days term, and/or to execute the guarantees granted by the Assignees.

 

Section 6.8 Seguros SURA S.A. claim. Assignors assume exclusively and undertake to solve the collection claim of Seguros SURA S.A. against the Company derived from Insurance Policy 132721, with no cost to the Company, releasing the Company and Assignees from any responsibility thereon, and expressly waiving any subsequent subrogation.

 

Section 6.9. Management Approval. Assignors approve management of the managers of the Company until the Closing Date, and waive any claim for any cause or title against them.

 

Section 6.10. Absence of claims. Except for the fulfillment of the obligations and commitments assumed in this Agreement and/or in the complementary documents thereto, Assignors represent they have no claim against the Assignees and/or against the Company, and refrain to bring action, for any concept of any origin or nature against the Assignees and/or against the Company.

 

Section 6.11. Non-Compete. Within the framework of the consideration of the Parties under this Agreement, Assignors undertake for a period of 3 (three) years as from the Closing Date, to refrain from carrying out, on their own and/or through third parties with which have commercial relations, and cause their Controlling, Controlled and Subject to common Control, related, affiliated and subsidiary persons to refrain from carrying out, in the Argentine Republic, either directly or indirectly, for their own benefit

 

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and/or third parties, individually or jointly, activities that involve retail sales or otherwise any sales through Mercado Libre platforms and/or, in general, similar e-commerce platforms. However, Assignors may carry out distribution activities to other persons and/or companies.

 

ARTICLE VII

INDEMNITY

 

Section 7.1. Assignees’ Obligation to Indemnify. In accordance with and subject to the terms and conditions of this Agreement and considering that the Agreement is made “as is, where is”, Assignees irrevocably and unconditionally assume the joint and several obligation of indemnifying and holding Assignors and their officers, directors, shareholders, managers, employees, members, representatives, Controlling Parties and Controlled Parties and Parties under Common Control, affiliates, subsidiaries, as applicable, including without limitation, Cool Holdings, Inc. and subsidiaries, Messrs. Alfredo Carrasco, Mauricio Díaz, Felipe Rezk, Reinier Cornelis Albert Voigt y Vernon Allen Lo Forti (each of them, an “Assignor’s Indemnitee”) harmless from any Damages proved to Assignor’s Indemnitees as a result of:

Section 7.2. Assignors’ Obligation to Indemnify. In accordance with and subject to the terms and conditions of this Agreement, Assignors irrevocably and unconditionally assume the obligation of indemnifying and holding Assignees harmless from any Damages proved as a result of:

 

ARTICLE VII

MISCELLANEOUS

 

Section 8.1. Notices. All notices hereunder shall be deemed served if sent by sufficient means or if the notified Party personally signs the instrument whose contents are notified. To be validly served, notices must be sent to the following addresses:

 

 

Dorrego 741,

Rosario, Santa Fe,

Argentina.

 

 

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Ing. E. Butty 275, 11th Floor,

City of Buenos Aires,

Argentina.

 

Cc.: 2001 NW 84 Ave,

Doral FL 33122,

Estados Unidos de América.

 

All notices served shall be effective upon receipt. Legal domiciles established in this article for purposes of notices may not be changed to other jurisdiction different from the original jurisdiction without the express written consent of the other Party.

 

Section 8.2. Applicable Laws. This Agreement shall be construed and governed in accordance with the laws of the Argentine Republic and any dispute arising in connection with the Sections hereunder shall be governed by such laws, except for any provision on conflicts of law giving rise to the application of laws of a different jurisdiction.

 

Section 8.3. Jurisdiction. Any dispute arising between the Parties in connection with this Agreement, the existence, effectiveness, type, interpretation, scope, performance or resolution shall be submitted by the Parties to the jurisdiction of the ordinary courts of the City of Buenos Aires on the matter, and the Parties expressly waive to any other forum or jurisdiction that may correspond.

 

Section 8.4. Confidentiality. All information (hereinafter, “Confidential Information”) related with the transaction hereunder provided by any of the Parties or their representatives among themselves, or to any of their affiliates or directors, officers, employees, representatives or agents -or to the directors, officers, employees or agents of their affiliates- (each of such persons receiving such Confidential information shall be referred to as a “Receiving Party” for purposes hereunder) shall be treated as strictly confidential and privileged information of the Party providing such Confidential Information; and the Receiving Party undertakes to keep such information strictly confidential, without disclosing it in any manner and to any third party or using, directly or indirectly, at any time, such Confidential Information for any competitive or business purpose. The obligation to keep the confidentiality of such Confidential Information shall survive the Closing Date or, in the event this Agreement is terminated, after such date of termination. In the event in the context of a suit or governmental, legal or regulatory investigation or any similar proceeding, the Receiving Party is required (by oral questioning, interrogatory, request for information or documents, subpoenas, investigations or similar proceedings) to disclose such information, the Receiving Party shall notify the other party of each inquiry or request for information so that the other party may obtain a legal protection order or any other legal remedy or, if applicable, waive to compliance with the provisions hereunder. If, absent a legal protection order or receipt of a waiver as provided hereunder, the Receiving Party receiving the order or inquiry is legally compelled to disclose such Confidential Information to any Governmental Authority, such Receiving Party may disclose such portion of the Confidential Information legally compelled to disclose to such governmental authority without any liability or obligation to the other Party under this Agreement in connection with such disclosure of information.

 

 

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Section 8.5. Assignment. The Parties may not assign this Agreement or any rights arising thereunder, except with the express and written consent of the other Party.

 

Section 8.6. Entire Agreement. Severability. Except otherwise is provided, this Agreement constitutes, with respect to the purpose hereof, the entire understanding of the Parties and prevails over any prior written or oral understanding and agreement between the Parties. In the event a competent court resolves in a final decision that any provision of this Agreement is null or unenforceable, in whole or in part, that decision shall be considered to be limited to the part of the provision held null or unenforceable and the remaining provisions of this Agreement shall remain in full force and effect.

 

Section 8.7. Costs and Expenses. Each of the Parties shall be responsible for the expenses incurred as a result of the preparation and signing of this Agreement. The fees and expenses incurred as a result of the registration with the Public Registry of the transactions contemplated in this Agreement, including the Share Capital Increase in Section 3.2 (i) herein, shall be borne by the Assignees. The taxes and expenses included in this Agreement and the transaction described herein generated in the Republic of Argentina shall be borne by the Company and/or the Assignees, as applicable, whereas the taxes and expenses generated abroad, if any, shall be borne by the Assignors. The Parties represent that they have not hired any investment bank, agent, broker, consultant or intermediary in connection to the transactions contemplated by this Agreement that may be entitled to a fee, and that may can claim to the Company or the other Party. Likewise, it is expressly agreed that any expenditure related to audits, whether to be carried out in the Republic of Argentina and/or abroad, as well as related to access and supply to the Assignors of information as indicated in Section 6.5 of this Agreement shall be borne exclusively by the Assignors, except for the undertaking assumed by Assignees in Section 6.5 herein.

 

Section 8.8. Waiver. Any default or failure of the Parties in the exercise of any right, power or privilege under this Agreement shall not be construed a waiver thereof, and the partial exercise of any right, power or privilege shall not be construed as a waiver to any further exercise thereof or to the exercise of any other right, power or privilege under this Agreement. The rights and remedies provided hereunder are cumulative and not exclusive of any other right or remedy provided by law or in contract.

 

Section 8.9. Delay. Any default as a result of a delay in performance of the obligation to pay an amount of money by any of the Parties under this Agreement and/or any of its Annexes shall be automatic, without need to send any prior notice of such delay.

 

Section 8.10. Performance. Each Party shall be entitled to claim a compensation for damages for any damage sustained as a result of any default, in whole or in part, of the obligations and commitments of the other Party under this Agreement.

 

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City of Buenos Aires, January 31, 2020

Messrs.

Mariano Andrés Turinetto

Hernán Gustavo Dreier

Ref.: Offer No. 01/2020

 

 

Dear Sirs/Madams:

 

We hereby irrevocably accept your Offer No. 01/2020 dated January 31, 2020.

 

Sincerely,

 

 

 

 

 

 

 

 

 

 

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