SECOND AMENDMENT TO STOCK PURCHASE AGREEMENT
Exhibit
10.3
SECOND
AMENDMENT TO STOCK PURCHASE AGREEMENT
This
amendment (the “Second Amendment”) is made on this 28th day of March, 2008, by
and between TELEFONICA DE ARGENTINA S.A., a company organized and existing under
the Argentine laws, domiciled at Xxxxxxx Xxxxxxxxx Xxxxxx 000, X.X., Xxxx of
Buenos Aires, represented hereat by Xx. Xxxxxxxxx Xxxxxx, in his capacity as
attorney-in-fact (hereinafter, “TASA”); and TELEFÓNICA DATACORP S.A., Sociedad
Unipersonal, a company organized and existing under the laws of the Kingdom of
Spain, domiciled at Xxxx Xxx Xx 00, Xxxxxx, represented hereat by Xx. Xxxxxxx
Xxxxx Xxxxxx, in his capacity as Executive President, sufficiently empowered for
this act (hereinafter, “DATACORP” and jointly with TASA, the
“Parties”).
WITNESSETH:
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A)
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WHEREAS,
on June 16, 2006, the Parties executed a stock purchase agreement
(hereinafter, the “Stock Purchase
Agreement”) whereby DATACORP sold to TASA all the shares of stock,
irrevocable contributions and any other interests convertible into stock
held by it in Telefónica Data Argentina S.A. (the
“Company”).
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B)
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WHEREAS,
pursuant to Section 1.2 of the Stock Purchase Agreement, the performance
of the Parties’ obligations was contingent upon the prior satisfaction or
waiver of the conditions precedent set forth in such Section, which should
have been fulfilled within a term of 12 months (the “Conditions
Precedent”).
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C)
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WHEREAS,
in accordance with the provisions of Section 1.2(d) of the Stock Purchase
Agreement, TASA and DATACORP have still not obtained the consent of the
Communications Secretariat under the terms of Decree 764/00, and the
obtention of such consent is not waivable by either
Party.
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D)
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WHEREAS,
for the reason mentioned in the preceding paragraph, on June 15, 2007, the
Parties agreed to extend the Stock Purchase Agreement until June 16, 2008
(hereinafter, the “First
Amendment”).
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E)
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WHEREAS,
as a result of a demand made by a minority shareholder, DATACORP issued a
Declaration of Acquisition dated March 14, 2008, all in accordance with
the provisions of Decree 677/01 of the Republic of Argentina (the
“Declaration of Acquisition”); therefore, DATACORP would become holder of
14,948 additional shares of stock (the “Additional Shares”) representing
1.8578% of the stock capital and voting power in the Company (hereinafter,
the “Residual Interests Acquisition
Process”).
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F)
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WHEREAS,
the Parties wish to extend the terms and conditions agreed upon in regard
to the Shares (as such term is defined in the Stock Purchase Agreement) to
the Additional Shares.
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G)
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WHEREAS,
the Parties wish to re-extend the term set forth in Section 1.2 of the
Stock Purchase Agreement.
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H)
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WHEREAS,
the Shares’ sales price as set forth in Section Three of the Stock
Purchase Agreement obtained a fairness opinion by MBA Banco de Inversión
S.A. and was determined based on the Company’s financial statements as of
December 31, 2005 and in regard to 787,697 book-entry shares of Telefónica
Data Argentina S.A, of $ 100 par value each, entitled to one vote per
share, fully subscribed and paid in, representing 97.89% of the Company’s
stock capital and voting
power.
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I)
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WHEREAS,
the Parties wish to change the price set forth in Section Three of the
Stock Purchase Agreement, in order to include the Additional Shares and
consider the Company’s valuation made by MBA Banco de Inversión S.A. as a
result of the Residual Interests Acquisition
Process.
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J)
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WHEREAS,
the referred price change is justified by the need that the transaction
price reflect the Company’s current market valuation, which valuation was
not adequately reflected by the price adjustment formula originally agreed
upon in the Stock Purchase
Agreement.
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NOW, THEREFORE, the Parties
agree as follows:
ONE
Subject to
the satisfaction of the Conditions Precedent contemplated in Section 1.2 of the
Stock Purchase Agreement, including the conclusion of the Residual Interests
Acquisition Process, and the provisions of Section Four of this Second
Amendment, DATACORP agrees to sell to TASA the 14,948 Additional Shares
representing 1.8578% of Telefónica Data Argentina S.A.’s stock capital, to be
acquired by DATACORP as a result of the above mentioned Process, under the terms
and conditions set forth in the Stock Purchase Agreement, as amended
herein.
TWO
The
Parties agree to re-extend the term set forth in Section 1.2 of the Stock
Purchase Agreement, as amended by the “First Amendment”, dated June 15, 2007,
for an additional 6-month term counted from June 17, 2008; therefore, such term
shall expire on December 17, 2008.
THREE
The
Parties agree to include the Residual Interests Acquisition Process and the
relevant approval of this “Second Amendment” to the Stock Purchase Agreement by
TASA’s Audit Committee and Board of Directors, as Conditions Precedent for the
closing of the Stock Purchase Agreement.
Therefore,
the Parties agree to amend Sections 1.2 and 1.3 of the Stock Purchase
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Agreement
as follows:
“1.2 Conditions
Precedent
The
performance of the Parties’ obligations set forth herein is subject to the prior
satisfaction as of the Closing Date, or the waiver by the Party in whose favor
the unfulfilled condition has been granted-exception made of the one
contemplated in paragraph (d)-of the conditions precedent detailed below (the
“Conditions Precedent”), which shall be fulfilled before December 17,
2008.
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(a)
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That
DATACORP has title to and is holder of all the Shares and rights related
thereto;
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(b)
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That
the representations and warranties made by DATACORP herein are true,
accurate and complete;
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(c)
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That
the representations and warranties made by TASA herein are true, accurate
and complete;
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(d)
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That
TASA and DATACORP have obtained the consent of the Communications
Secretariat under the terms of Decree 764/00. This condition precedent is
not waivable by either of the Parties (the “SECOM’s
Consent”);
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(e)
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That
the Audit Committee and Board of Directors of TASA approve the terms and
conditions of the Second Amendment to the Stock Purchase Agreement dated
March 28, 2008; and
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(f)
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That
DATACORP has completed the residual interests acquisition process whereby
it shall have acquired 14,948 shares of the Company of 100 pesos par value
each, held by the Company’s minority shareholders (the “Acquired Shares”)
by means of the execution of the acquisition deed set forth in Section 29
of Decree 677/01 (the “Residual Interests Acquisition Process”). This
condition precedent may be waived by DATACORP, in which case the Closing
(as such term is defined below) shall take place only in connection with
the Shares.
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If upon
expiration of the term, i.e., by December 17, 2008, the Conditions Precedent set
forth in paragraphs (a), (b), (c), (d) and (e) shall have been fulfilled, the
closing of the transaction shall take place in regard to the 787,697 book-entry
shares of Telefónica Data Argentina S.A, of $ 100 par value each and entitled to
one vote per share, representing 97.89% of the Company’s stock capital and
voting power.
This
agreement shall be terminated by operation of law if upon expiration of the
above mentioned term the Conditions Precedent set forth in paragraphs (a), (b),
(c), (d) and (e) shall have not been fulfilled”.
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“1.3 Closing
The
closing of the transaction hereunder shall take place at Xx. Xxxxxxxxx Xxxxxx
000, 00xx Xxxxx, Xxxx xx Xxxxxx Aires, within five (5) business days following
the date all the Conditions Precedent set forth in Section 1.2 shall have been
satisfied, or within five (5) business days counted as from December 17, 2008,
in connection with the 787,697 book-entry shares of Telefónica Data Argentina
S.A, of $ 100 par value each and entitled to one vote per share, representing
97.89% of the stock capital and voting power of the Company, whatever occurs
first (the “Closing Date”).
On the
Closing Date:
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(i)
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DATACORP
shall send the notice required under Section 215 of the Business Companies
Law 19,550, as amended, by delivering a letter in the form of Exhibit 1.3
to the Stock Purchase Agreement, giving notice to the company of the
transfer of the Shares to TASA, and requesting the registration of the
change of ownership of the Shares in the name of TASA in the Shareholders’
Register; and
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(ii)
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TASA
shall pay the Price to DATACORP, as set forth in Section
Three.”
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FOUR
Section
Three of the Stock Purchase Agreement shall be amended and replaced in full by
the following text:
“Three: Price.
The sales
price of the Shares, i.e. for an amount of 787,697 Shares, is
US$ 56,041,216 (fifty-six million forty-one thousand two hundred and
sixteen U.S. dollars) (the “Price of the Shares ”) and the sales price of the
Additional Shares acquired by DATACORP from the Company’s minority shareholders,
i.e. for an amount of 14,948 Shares, is US$ 1,063,485(one million
sixty-three thousand four hundred and eighty-five U.S. dollars) (the “Price of
the Additional Shares” and together with the Price of the Shares, the
“Price”).
Notwithstanding
the foregoing, the Price of the Additional Shares may be reviewed, in the event
that the Argentine Securities Commission does not approve the amount initially
tendered by DATACORP under the Residual Interests Acquisition Process, taking as
Price such amount as is finally approved by the Argentine Securities Commission.
For purposes of converting the amount that is finally approved to U.S. dollars,
the average between the buying and selling ARS/USD exchange rate prevailing two
business days before the Closing Date shall be taken into account.
The Price
shall be valid since the date of this Agreement until three months after the
conclusion of the Residual Interests Acquisition Process, even if the Residual
Interests Acquisition Process ends without the minority shareholders’ shares
having been acquired
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(the
“Price Validity Term”).
The Price
shall be paid by TASA to DATACORP on the Closing Date.
Payment
shall be made in such account as designated by DATACORP in writing, and
crediting of such transfer shall be regarded as sufficient receipt
thereof.
The
Parties agree to negotiate in good faith any adjustments to the Price that may
be necessary in case that, Condition Precedent 1.2 (f) having been satisfied and
the Price Validity Term having elapsed, the SECOM’s Consent contemplated in
Condition Precedent 1.2 (d) shall have not been obtained.
FIVE
This
“Second Amendment” shall form a sole and single agreement together with the
Stock Purchase Agreement and its First Amendment, so that any reference to the
Stock Purchase Agreement, unless otherwise expressly set forth, shall be deemed
to refer to the Stock Purchase Agreement as amended by this “Second
Amendment”.
SIX
All the
terms and conditions of this Stock Purchase Agreement not expressly amended by
this Second Amendment or the First Amendment shall remain in full force and
effect.
SEVEN
Sections
Ten and Eleven of the Stock Purchase Agreement shall apply mutatis mutandis to this
Second Amendment to the Stock Purchase Agreement.
In witness
whereof, 2 (two) identical counterparts are signed on this 28th day of March,
2008.
Telefónica
de Argentina, S.A.
Name:
Xxxxxxxxx Xxxxxx
Title:
Attorney-in-fact
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Telefónica
Datacorp, S.A. Unipersonal
Name:
Xxxxxxx Xxxxx Xxxxxx
Title:
Attorney-in-fact
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