EXHIBIT 10.7
ACQUISITION AGREEMENT
by and among
EQUIFAX PAYMENT SERVICES, INC.
EQUIFAX DO BRASIL HOLDINGS LTDA.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ TELECOMUNICACOES LTDA.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ S.A.
CONSTRUTORA ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ S.A.
and
▇▇▇▇▇▇-SOLUCOES EM MEIOS DE PAGAMENTO LTDA.
Effective as of May 24, 2001
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
SCHEDULE OF EXHIBITS
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Exhibit A-1 Articles of Association for EV1
Exhibit A-2 Articles of Association for EV2
Exhibit B Certain Accounts Payable
Exhibit C Lawsuit Dismissal
Exhibit D Arbitration Dismissal
Exhibit E Tozzini Freire Teixera e ▇▇▇▇▇ Legal Opinion
Exhibit ▇-▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ Opinion
Exhibit F-2 ▇▇▇▇▇▇ e Advogados Legal Opinion
ACQUISITION AGREEMENT
THIS AGREEMENT is made and entered into effective as of the ___ day of
May, 2001, by and among:
(1) EQUIFAX PAYMENT SERVICES, INC., a corporation organized and
existing under the laws of the State of Delaware, United States of America,
whose principal place of business is located at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America ("EFX");
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(2) EQUIFAX DO BRASIL HOLDINGS LTDA., a Brazilian limited liability
company ("sociedade por quotas de responsabilidade limitada"), whose head office
is located at Av. Presidente ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, n.(Degree) 50, 17th Floor,
suite 172, room 4, in the City of Sao Paulo, State of Sao Paulo, Federal
Taxpayers' No. 02.677.368/0001-14, with its Articles of Association recorded at
the Commercial Registry at the State of Sao Paulo, under NIRE No.
35,215,207,148, on July 20, 1998 ("Holdings", and together with EFX,
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collectively referred to as "Equifax");
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(3) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ TELECOMUNICACOES LTDA., a Brazilian limited
liability company ("sociedade por quotas de responsabilidade limitada"), whose
head office is located at ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇, ▇▇▇▇▇ D, 4th
floor, in the city of Sao Paulo, State of Sao Paulo, Federal Taxpayers'
Registration No. 71.057.921/0001-39, with its Articles of Association registered
before the Board of Trade of the State of Sao Paulo ("JUCESP") under NIRE
▇▇.▇▇▇.▇▇▇.▇▇▇, in section as of March 03, 1995 ("AG Telecom");
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(4) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ S.A., a Brazilian corporation ("sociedade
anonima"), whose head office is located at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇ the
city of Belo Horizonte, State of Minas Gerais, Federal Taxpayers' Registration
No. 17.262.197/0001-30, with its by-laws recorded at the Board of Trade of the
State of Minas Gerais ("JUCEMG") under No. 313.000.1481-9, in section as of June
23, 2000 ("AG Parent" and the "Seller");
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(5) CONSTRUTORA ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ S.A., a Brazilian corporation
("sociedade anonima"), whose head office is located at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇, in
the city of Belo Horizonte, State of Minas Gerais, Federal Taxpayers'
Registration No. 17.262.213/0001-94, with its by-laws recorded at the Board of
Trade of the State of Minas Gerais ("JUCEMG") under No. 313.000.918-30, in
section as of September 02, 1948 ("Construtora AG "; and together with AG
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Telecom and AG Parent, the "AG Group"); and
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(6) ▇▇▇▇▇▇-SOLUCOES EM MEIOS DE PAGAMENTO LTDA., a Brazilian limited
liability company ("sociedade por quotas de responsabilidade limitada"), whose
head office is located in the City and State of Sao Paulo, at ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇ - ▇▇▇ ▇▇▇▇▇, enrolled at the Federal Taxpayers' Registry
under No. 69.313.674/0001-42 ("▇▇▇▇▇▇").
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BACKGROUND STATEMENT
WHEREAS, on April 23, 2001, AG Telecom transferred to AG Parent all the
quotas of ▇▇▇▇▇▇ held by AG Telecom, together with all of its rights and
obligations to subscribe for
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additional quotas of ▇▇▇▇▇▇ (pursuant to the 23rd Amendment to the Articles of
Association of ▇▇▇▇▇▇);
WHEREAS, on the date of this Agreement the Seller owns, directly and in
the aggregate, certain quotas and those additional quotas which AG Telecom has
subscribed to purchase which, in the aggregate, equal 20.335% of the outstanding
quotas (the "Quotas") of ▇▇▇▇▇▇; and
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WHEREAS, AG Telecom, Construtora AG, Holdings and others are all
parties to that certain Quotaholders Agreement entered into on or about June 28,
1999 (the "Quotaholders Agreement"), as modified by that certain Modification of
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Quotaholders Agreement entered into on or about April 26, 2001 (the
"Modification"); and
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WHEREAS, the Seller desires to sell to Holdings or its Designee (this
term and other capitalized terms used in this Agreement being defined in either
Paragraph 14.1 of this Agreement or in those Paragraphs of this Agreement
identified in Paragraph 14.2) on the Closing Date, all of the Quotas, and
Equifax or its Designee desires to purchase and take from the Seller all of the
Quotas (such sale and purchase being referred to herein as the "Transaction");
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NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements in this Agreement contained, and other good and
valuable consideration, the receipt and sufficiency of which are acknowledged,
the Parties agree as follows:
1. THE ACQUISITION
1.1 Acquisition and Sale of the Seller's Interest.
(a) Subject to the terms contained in this Agreement, on the
Closing Date the Seller shall sell, transfer and assign to Equifax or, if so
elected by Equifax, to any Designee, the Quotas for an aggregate purchase price
of R$ 64,200,000 ("Acquisition Price"), all of which Quotas shall be free and
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clear of any and all Liens. The Acquisition Price shall be paid as described in
Paragraph 1.1(c) below.
(b) Against payment of the Acquisition Price, the Parties shall
execute the proper amendment to the Articles of Association of ▇▇▇▇▇▇ in order
to reflect the transfer of the Quotas to Equifax or its Designee.
(c) The Acquisition Price shall be paid in full by delivery of all
of the quotas of EV2 by EV1 to the Seller, all of which quotas shall be free and
clear of any and all Liens. Simultaneously therewith, the Parties shall execute
the proper amendment to the Articles of Association of EV2 in order to reflect
the transfer of all the quotas of EV2 to AG Telecom, AG Parent or such of their
respective affiliates as shall be a legal entity organized under the laws of
Brazil..
(d) ▇▇▇▇▇▇ acknowledges and agrees that, simultaneously with the
Closing, EV1 has paid (i) R$ 1,998,386.00 in cash to ▇▇▇▇▇▇ in full and final
satisfaction of AG Telecom's liability for previously subscribed quotas
(pursuant to the 23rd Amendment to the Articles of Association of ▇▇▇▇▇▇), and
(ii) R$ 161,176.04 in cash to ▇▇▇▇▇▇ in full and final satisfaction of AG
Telecom's liability for previously incurred accounts receivable as reflected on
Exhibit
2
▇. ▇▇▇▇▇▇ acknowledges and agrees that AG Telecom shall have no further
liability in respect of either of the foregoing obligations.
(e) The Seller will be solely responsible for the payment of all
Taxes, including without limitation, all transfer, sales, stamp duties, use,
excise, value added and similar taxes imposed by any Government, in connection
with the transfer of the Quotas to the Seller by AG Telecom and the sale of the
Quotas to Equifax or its Designee.
(f) The Seller, AG Telecom and Construtora AG acknowledge that
Equifax shall retain R$ 120,420.49 of the Acquisition Price as reimbursement for
certain expenses.
2. TRANSACTION STRUCTURE
2.1 AG Telecom's Obligations. Immediately prior to the Closing, AG
Telecom and AG Parent shall execute, together with Holdings, the proper
amendment to the Articles of Association of ▇▇▇▇▇▇ to reflect the transfer of
the Quotas to AG Parent, as stated in the Background Statements of this
Agreement. The transfer of the Quotas shall be at their book value based upon
the books and records of AG Telecom, which both AG Telecom and the Seller
represent and warrant to Equifax is, and shall be at the date of transfer and on
the Closing Date, R$ 35,291,671.00 (the "Book Value").
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2.2 Equifax's Obligations.
(a) Prior to the Closing, Equifax or any of its Affiliates shall
incorporate AGES Participacoes S.A., a Brazilian corporation ("sociedade
anonima") ("EV1"). The amount of the corporate capital of EV1 shall be equal to
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R$ 128,400,000. The purchase price for the quotas of EV1 shall be paid in cash
by Equifax (or any of its Affiliates) in Brazilian reais. Upon incorporation,
and at the Closing Date, EV1 shall have no assets other than the cash proceeds
from the subscription of the quotas of EV1, and will have upon incorporation and
at all times up through and including the Closing Date no liabilities (other
than for its liabilities and obligations arising pursuant to this Agreement).
The Articles of Association of EV1 shall be in the form attached hereto as
Exhibit A-1.
(b) Promptly following the incorporation of EV1 as provided above,
EV1 shall incorporate Card/AGT Swapco Ltda., a Brazilian limited liability
company ("sociedade comercial por quotas de responsabilidade limitada") ("EV2").
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The amount of the corporate capital of EV2 shall be equal to R$ 61,920,017.47.
The purchase price for the quotas of EV2 shall be paid in cash by EV1 in
Brazilian reais. Upon incorporation, and at the Closing Date, EV2 shall have no
assets other than the cash proceeds from the subscription of the quotas of EV2,
and will have upon incorporation and at all times up through and including the
Closing Date no liabilities. The Articles of Association of EV2 shall be in the
form attached hereto as Exhibit A-2.
3. CLOSING
3.1 Closing. Subject to the conditions contained in Articles 8 and
9 having been satisfied or waived in writing in accordance with the terms of
this Agreement, the consummation of the transactions contemplated in this
Agreement (the "Closing") will take place at the offices of ▇▇▇▇▇▇ e Advogados,
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located at Av.Presidente ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, n.(Degree)50, 17th floor, Sao
Paulo, Brasil, commencing at 9:00 a.m., local time, on May 24, 2001, or
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any other date as may be mutually acceptable to the Parties (the date of the
Closing being referred to in this Agreement as the "Closing Date"); provided,
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however, that the Transaction shall for all purposes be effective as of 12:01
a.m., Sao Paulo time, on May 24, 2001. To facilitate the Closing, the Parties
will meet at a pre-closing conference at the offices of ▇▇▇▇▇▇ e Advogados,
commencing at 9:00 a.m., local time, on the first Business Day immediately
preceding the Closing Date, with the intention to finalize the Closing matters
contemplated in this Agreement in a timely manner so as to cause the Closing to
occur on the Closing Date.
3.2 Cooperation and Further Assurances. Between the date of this
Agreement and Closing, each Party shall take, and shall cause all of its
relevant Affiliates to take, any and all other and further actions required,
necessary or convenient to carry out the intent and purpose of the Transaction
and this Agreement. At Equifax's reasonable request, whether on or after the
date of this Agreement, and without the payment of any additional monies, the
Seller, Construtora AG and AG Telecom will, at their sole expense and without
contribution by or Liability to Equifax or ▇▇▇▇▇▇, execute and deliver any and
all further documents and instruments of conveyance, assignment, and transfer
and will take any and all further reasonable actions as may be necessary, in the
reasonable opinion of Equifax, to transfer and convey to Equifax all right,
title and interest in and to the Quotas, free and clear of any and all Liens or
as may otherwise be necessary or desirable to carry out the intent of this
Agreement.
4. ADDITIONAL COVENANTS
4.1 Cooperation. The Parties will cooperate fully with each other
and with their respective Representatives in connection with any steps required
to be taken as part of their respective obligations under this Agreement, and
all Parties will use their best efforts to consummate the transactions
contemplated by this Agreement and to fulfill their obligations under this
Agreement, including without limitation, causing to be fulfilled at the earliest
practical date the conditions precedent to the obligations of the Parties to
consummate the transactions contemplated by this Agreement. Without the prior
written consent of the other Parties, no Party may take any intentional actions,
or omit to take any actions, that would cause the conditions precedent to the
obligations of the Parties not to be fulfilled, including, without limitation,
taking or causing to be taken any action which would cause the representations
and warranties made by a Party in this Agreement not to be true, correct and
complete as of the Closing. For a period of three (3) years following the
Closing, ▇▇▇▇▇▇ and its Affiliates, on the one hand, and the Seller and AG
Telecom, on the other hand, agree to use their reasonable efforts to cooperate
with the other and act as an advisor to the other in furtherance and promotion
of their respective businesses, it being expressly understood and agreed that no
fees or other compensation shall be payable in respect of such cooperation and
advisory services unless the relevant Persons shall have expressly agreed in
writing to the payment of any such fees or other compensation.
4.2 Expenses. The Parties will bear their own legal, accounting,
broker, intermediary and other fees and expenses related to the transactions
contemplated by this Agreement.
4.3 Update of Information. All documents, agreements, instruments,
statements, copies and other writings furnished to or for the benefit of
Equifax, the Seller, Construtora AG, AG Telecom or any of their Representatives
pursuant to this Agreement are and will be true, correct and complete as of the
date furnished, and any and all amendments and
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supplements to the documents, agreements, instruments, statements and other
writings furnished to or for the benefit of Equifax, the Seller, Construtora AG,
AG Telecom or any of their Representatives pursuant to this Agreement have been
or will be delivered to Equifax, the Seller, Construtora AG, AG Telecom and
their Representatives in a timely and expeditious manner prior to the Closing.
At all times prior to and including the Closing Date, AG Telecom, Construtora
AG, the Seller and Equifax will promptly provide one another with written
notification of any event, occurrence or other information of any kind
whatsoever which affects, or may affect, the continued truth, correctness or
completeness of any representation, warranty, covenant or agreement made in this
Agreement by a Party or any document, agreement, instrument, certificate or
writing furnished to or for the benefit of a Party by any other Party pursuant
to or in connection with this Agreement, and each written notification will
specifically identify any and all of the representations, warranties, covenants
and agreements affected by the fact, event, occurrence or information that
necessitated the giving of the notice. No notification or other disclosure will
be deemed to amend or supplement this Agreement or any representation, warranty,
covenant, agreement or indemnity or any other document, agreement, instrument,
certificate or writing furnished to or for the benefit of any Party pursuant to
or in connection with this Agreement.
4.4 Brokers. AG Telecom, Construtora AG and AG Parent represent
and warrant to Equifax that no broker or finder has acted on their behalf in
connection with this Agreement or the transactions contemplated in this
Agreement, and AG Telecom, Construtora AG and AG Parent, jointly and severally,
agree to indemnify Equifax and ▇▇▇▇▇▇ and hold each of them harmless from and
against any and all claims or demands for commissions or other compensation by
any broker, finder or similar agent claiming to have been employed by or on
behalf of them. Equifax represents and warrants that no broker or finder has
acted on its behalf or in behalf of itself or ▇▇▇▇▇▇ in connection with this
Agreement or the transactions contemplated in this Agreement and agrees to
indemnify AG Telecom, Construtora AG and Seller and hold each of them harmless
from and against any and all claims or demands for commissions or other
compensation by any broker, finder or similar agent claiming to have been
employed by or on behalf of Equifax or ▇▇▇▇▇▇.
4.5 Publicity. Except to the extent required by applicable Law or
listing agreement with any securities exchange, all press releases and other
public announcements respecting the subject matter of this Agreement will be
made only with the mutual agreement of AG Parent and Equifax, which agreement
will not be unreasonably withheld, delayed or conditioned. Prior to submitting
any information to third parties as required by applicable Law or listing
agreement with any securities exchange, each Party will provide the other
Parties with a reasonable opportunity to review and comment on the terms upon
which such information will be disclosed.
4.6 Certain Governmental Filings. The Parties will make, or cause
to be made, all filings and submissions required to be made to any Government in
connection with the transactions contemplated by or resulting from this
Agreement, if any. Each of the Parties will furnish to the other Parties any and
all necessary information and reasonable assistance as another Party may
reasonably request in connection with its preparation of necessary filings or
submissions to any Government. Prior to filing any material application,
registration, statement or other document with the applicable governmental
authority, each Party will provide the other Parties with a reasonable
opportunity to review and comment on each such application, registration,
statement or other document. Each of the Parties hereby covenants and agrees
that it will not take a position on any tax return or report or any other
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governmental filing or report, or take a position in any Forum or before any
Government different from or in any way inconsistent with those taken in, or in
connection with, this Agreement.
4.7 Dismissal of Litigation.
(a) Simultaneous with the Closing, the Parties shall file, through
their respective counsel, with the United States District Court, Northern
District of Georgia, Atlanta Division, fully executed original documents, in the
same form as Exhibit C attached hereto, to effectuate the dismissal of Equifax
Inc. and Equifax do Brasil Holdings Ltda. ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Telecomunicacoes
Ltda. and Socma Americana S.A., Civil Action File No. 1:01-CV-0837.
(b) Simultaneous with the Closing, the Parties shall file, through
their respective counsel, with the American Arbitration Association, New York,
New York, U.S.A., fully executed original documents, in the same form as Exhibit
D attached hereto, to effectuate the dismissal of In the Matter of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Telecomunicacoes Ltda. and Socma Americana S.A. v. Equifax Inc. and
Equifax do Brasil Holdings Ltda., Arbitration ▇▇. ▇▇ ▇ ▇▇▇ ▇▇▇▇▇ 01.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS RELATING TO ▇▇▇▇▇▇.
Having regard for the fact that (i) the AG Group is a minority
quotaholder of ▇▇▇▇▇▇, and (ii) the AG Group has only one representative
participating on the board of ▇▇▇▇▇▇, each ach of AG Telecom. Construtora and
Seller, jointly and severally, represents and warrants to Equifax, and covenants
and agrees, as of the date of this Agreement and again as of the Closing Date,
other than as reflected in the Relevant Records, to the Knowledge of each of AG
Telecom, Construtora AG and Seller:
5.1 No Violation; Compliance with Laws. ▇▇▇▇▇▇ has not failed to
comply with, nor has it received any notification of any present or past failure
by ▇▇▇▇▇▇ to comply with, any Order or Laws or that its operations have not been
conducted in accordance with all applicable Laws.
5.2 Liabilities.
(a) ▇▇▇▇▇▇ has no Liability except (i) those reflected in Unnisa's
financial statements, (ii) those accounts payable incurred in the ordinary and
regular course of business, and (iii) those incurred in the ordinary and regular
course of business consistent with past practices .
(b) ▇▇▇▇▇▇ is not a party to any contract or commitment to
guarantee the payment or performance of any Liability of any other Person, or
pursuant to which ▇▇▇▇▇▇, or its respective assets, properties, business or
revenue, is or may become liable for the indebtedness or other obligations of
any other Person.
5.3 Intellectual Property Rights. ▇▇▇▇▇▇ has not received any
notice, complaint, threat or claim alleging infringement of, any patent,
trademark, trade name, copyright, industrial design, trade secret or any other
intellectual property or proprietary right of any Person, nor has the conduct by
▇▇▇▇▇▇ of its business or its use of the Proprietary Rights
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infringed any patent, trademark, trade name, copyright, industrial design, trade
secret or any other intellectual property or proprietary right of any Person
which would result in a material adverse effect on the business, prospects or
assets of ▇▇▇▇▇▇.
5.4 Litigation; Contingencies. There are no Actions existing or
threatened against, by or affecting ▇▇▇▇▇▇, the property, business, revenues or
assets of ▇▇▇▇▇▇, in any Forum, the eventual outcome of which might have a
material adverse effect on ▇▇▇▇▇▇ after the date of this Agreement.
5.5 Absence of Certain Business Practices. None of AG Telecom, AG
Parent or Construtora AG, or any of their Affiliates, or any of their respective
officers, directors, employees, agents, nor any other Person acting on any of
their behalf has, directly or indirectly, within the past five years given or
agreed to give any gift or similar benefit to any Government employee or other
Person who is or may be in a position to help or hinder the business of ▇▇▇▇▇▇
(or to assist ▇▇▇▇▇▇ in connection with any actual or proposed transaction).
5.6 No Agreement in Anticipation of Sale. The consummation of the
transactions contemplated by this Agreement will not entitle any employee of
▇▇▇▇▇▇ to ▇▇▇▇▇▇▇▇▇ pay nor will it accelerate the time of payment, vesting or
increase the amount of any compensation or benefits due to any employee of
▇▇▇▇▇▇.
5.7 Customers and Suppliers. No material supplier or customer of
▇▇▇▇▇▇ intends to discontinue or substantially diminish or change its
relationship with ▇▇▇▇▇▇ or the terms of its relationship with ▇▇▇▇▇▇; no
material supplier of ▇▇▇▇▇▇ intends to increase prices or charges for goods or
services presently supplied; and no material supplier of ▇▇▇▇▇▇ is likely to
become unable to continue its relationship with ▇▇▇▇▇▇, or supply the goods or
services which it presently supplies ▇▇▇▇▇▇, without significant change in the
terms and conditions to any relevant relationship or supply arrangement.
5.8 Full Disclosure. No representation, warranty, covenant or
agreement of or relating to ▇▇▇▇▇▇ contained in this Agreement or in any other
written statement or certificate delivered by the Seller, Construtora AG or AG
Telecom, pursuant to or in connection with this Agreement or in connection with
the transactions contemplated in this Agreement contains or will contain any
untrue statement of a material fact or omits or will omit to state a material
fact necessary to make the statements contained in this Agreement or in any
other written statement or certificate delivered by the Seller, Construtora AG
or AG Telecom, pursuant to this Agreement not misleading. Other than for
information that is generally known to the public or in respect of which there
has been public disclosure or in respect of which Equifax or its Affiliates has
Knowledge, there is no fact known to the Seller, Construtora AG or AG Telecom
which materially and adversely affects, or in the future may materially and
adversely affect, the business, operations, cash flows, affairs, prospects,
properties or assets, or the condition, financial or otherwise, of ▇▇▇▇▇▇ or the
businesses to be conducted by ▇▇▇▇▇▇ on and after the Closing Date, or its
operations, cash flows, affairs, prospects, properties or assets.
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6. REPRESENTATIONS AND WARRANTIES RELATING TO AG TELECOM, CONSTRUTORA AG
AND AG PARENT
Each of the Seller, AG Telecom and AG Parent, jointly and severally,
represent, warrant and covenant to Equifax, as of the date hereof and again as
of the Closing Date, as follows:
6.1 Existence.
(a) AG Parent: (i) is a corporation ("sociedade anonima"), duly
organized and registered and validly existing under the laws of Brazil, and (ii)
is entitled to own or lease its assets and properties and to carry on its
business as and in the places where its business is conducted and its assets and
properties are owned or leased AG Parent: (i) is a corporation ("sociedade
anonima"), duly organized and registered and validly existing under the laws of
Brazil, and (ii) is entitled to own or lease its assets and properties and to
carry on its business as and in the places where its business is conducted and
its assets and properties are owned or leased.
(b) AG Telecom: (i) is a limited liability company ("sociedade por
quotas de responsabilidade limitada"), duly organized and registered and validly
existing under the laws of Brazil, and (ii) is entitled to own or lease its
assets and properties and to carry on its business as and in the places where
its business is conducted and its assets and properties are owned or leased.
6.2 Authority; Inconsistent Obligations.
(a) Each of AG Parent, Construtora AG and AG Telecom has the full
right, power and authority to execute and deliver and to perform and comply with
this Agreement. All proceedings and actions required to be taken by AG Parent,
Construtora AG and AG Telecom to authorize the execution, delivery and
performance of this Agreement have been taken. This Agreement has been duly and
validly executed and delivered by each of AG Parent, Construtora AG and AG
Telecom, as appropriate, by its duly authorized officers or representatives.
This Agreement constitutes the valid and legally binding obligation, subject to
general equity principles, of each of AG Parent, Construtora AG and AG Telecom,
as appropriate, enforceable in accordance with its respective terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting the rights of creditors generally.
(b) Neither the execution and delivery of this Agreement by AG
Parent, Construtora AG or AG Telecom, nor the consummation of the transactions
contemplated by this Agreement will (i) result in a violation of the Articles of
Association, Articles of Incorporation or By-Laws of AG Parent, Construtora AG
or AG Telecom, as appropriate, or on the date of this Agreement or on the
Closing Date any applicable Law or Order, (ii) violate any Order or Law
applicable to AG Parent, Construtora AG or AG Telecom, as appropriate, or (iii)
result in a breach of, conflict with or default under, any term or provision of
any indenture, note, mortgage, bond, security agreement, loan agreement,
guaranty, pledge, or other instrument, contract, agreement or commitment to
which AG Parent, Construtora AG or AG Telecom is a party or by which any of them
or any of their respective assets, properties, or businesses are subject or
bound; nor will these actions result in (w) the creation of any Lien on the
Quotas, or any of the assets, properties, businesses, revenues or profits of AG
Parent, Construtora AG or AG Telecom, (x) the acceleration or creation of any
obligation of
8
AG Parent, Construtora AG or AG Telecom, (y) the forfeiture of any material
right or privilege of AG Parent, Construtora AG or AG Telecom, or (z) the
forfeiture of any material right or privilege of AG Parent, Construtora AG or AG
Telecom that may affect its ability to perform under this Agreement.
6.3 Ownership of Quotas. Seller owns the Quotas free and clear of
any and all Liens.
6.4 No Violation; Compliance with Laws. None of AG Parent,
Construtora AG or AG Telecom is in default under or in violation of (a) its
Articles of Association, Articles of Incorporation or By-Laws, as appropriate,
or (b) any material applicable Order or Law, and each of AG Parent, Construtora
AG and AG Telecom has complied with all applicable Laws, where the failure to so
comply would have a material adverse effect on AG Parent and its consolidated
subsidiaries. None of AG Parent, Construtora AG or AG Telecom has received any
notification of any asserted present or past failure by any of AG Parent,
Construtora AG or AG Telecom to comply with any material Order or Laws, where
the asserted failure if determined adversely would have a material adverse
effect on AG Parent and it consolidated subsidiaries.
6.5 Consents. The execution and delivery by AG Parent, Construtora
AG and AG Telecom of this Agreement, the consummation of the transactions
contemplated in this Agreement, and the performance by AG Parent, Construtora AG
or AG Telecom under this Agreement, as appropriate, do not (a) require the
consent, approval or action of, or any filing with or notice to, any Government
or other Person, other than for a notification filing to be made with the
Brazilian anti-trust authorities within fifteen (15) days after the execution of
this Agreement, (b) require the consent or approval of AG Parent's, Construtora
AG's or AG Telecom's shareholders (except for those previously obtained), or (c)
impose any other term, condition or restriction on AG Parent, Construtora AG or
AG Telecom pursuant to any applicable Order or Law.
6.6 Litigation; Contingencies. There are no Actions existing or,
to the knowledge of any of AG Parent, Construtora AG or AG Telecom, threatened
against, by or affecting AG Parent, Construtora AG or AG Telecom, the property,
business, revenues or assets of AG Parent, Construtora AG or AG Telecom, in any
Forum, nor is there any basis for any Actions, nor do there exist any other
contingent liabilities, the eventual outcome of which might have a material
adverse effect on AG Parent and its consolidated subsidiaries after the date of
this Agreement, or which would prevent or impede the transactions contemplated
by this Agreement. None of AG Parent, Construtora AG or AG Telecom has been
charged with, or is under investigation with respect to, any material charge
concerning any violation of any provision of any Law. There are no material
unsatisfied judgments against AG Parent, Construtora AG or AG Telecom or any of
their predecessors or any other material Order to which any of AG Parent,
Construtora AG or AG Telecom, or any of AG Parent's, Construtora AG's or AG
Telecom's material assets or properties, are subject.
6.7 Full Disclosure. No representation, warranty, covenant or
agreement of or relating to AG Parent, Construtora AG or AG Telecom contained in
this Agreement or in any other written statement or certificate delivered by any
of AG Parent, Construtora AG or AG Telecom, pursuant to or in connection with
this Agreement or in connection with the transactions contemplated in this
Agreement, contains or will contain any untrue statement of a material fact or
omits or will omit to state a material fact necessary to make the statements
9
contained in this Agreement or in any other written statement or certificate
delivered by any of AG Parent, Construtora AG or AG Telecom, pursuant to this
Agreement, not misleading.
7. REPRESENTATIONS AND WARRANTIES OF EQUIFAX
Each of EFX and Holdings, jointly and severally, represents and
warrants to, and covenants and agrees with, each of AG Parent, AG Telecom and
Construtora AG, as of the date hereof and again as of the Closing Date, as
follows:
7.1 Organization.
(a) EFX: (i) is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware, U.S.A., and (ii) is
entitled to own or lease its assets and properties and to carry on its business
as and in places where the business is conducted and the properties are owned or
leased.
(b) Holdings: (i) is a limited liability company ("sociedade por
quotas de responsabilidade limitada") duly organized and registered and validly
existing under the laws of Brazil, and (ii) is entitled to own or lease its
assets and properties and to carry on its business as and in places where the
business is conducted and its assets and properties are owned or leased.
(c) EV1, when formed: (i) will be a Brazilian corporation
("sociedade anonima") duly organized and registered and validly existing under
the laws of Brazil, (ii) will be entitled to own or lease its assets and
properties and to carry on its business as and in those places where its
business will be conducted and its assets and properties will be owned or
leased, and (iii) will have upon incorporation and at all times up through and
including the Closing Date no liabilities.
(d) EV2, when formed: (i) will be a limited liability company
("sociedade por quotas de responsabilidade limitada") duly organized and
registered and validly existing under the laws of Brazil, (ii) will be entitled
to own or lease its assets and properties and to carry on its business as and in
those places where its business will be conducted and its assets and properties
will be owned or leased, and (iii) will have upon incorporation and at all times
up through and including the Closing Date no liabilities.
7.2 Authority; No Inconsistent Agreements. Each of EFX and
Holdings has full power and authority to make, execute and perform this
Agreement and the transactions contemplated by this Agreement. This Agreement
and all transactions required under this Agreement to be performed by Equifax
have been duly and validly authorized and approved by all necessary corporate
action on its part. This Agreement has been duly and validly executed and
delivered on behalf of each of EFX and Holdings by its duly authorized officers,
and this Agreement constitutes the valid and legally binding obligation of each
of them, enforceable, subject to general equity principles, in accordance with
its terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of creditors generally.
Neither the execution and delivery of this Agreement, nor the consummation of
the transactions contemplated by this Agreement, will constitute a violation or
breach of the articles of incorporation or by-laws or other organizational
document of either of them and will (i) violate any Order or Law applicable to
either EFX or Holdings, or (iii) result in a breach of, conflict with or default
under, any term or provision of any indenture, note, mortgage, bond, security
agreement, loan agreement,
10
guaranty, pledge, or other instrument, contract, agreement or commitment to
which either EFX or Holdings is a party or by which any of them or any of their
respective assets, properties, or businesses are subject or bound; nor will
these actions result in the forfeiture of any material right or privilege of
either EFX or Holdings that may affect its ability to perform this Agreement.
7.3 Consents. The execution and delivery by each of EFX and
Holdings of this Agreement, the consummation of the transactions contemplated in
this Agreement and the performance by each of EFX and Holdings under this
Agreement do not: (a) require the consent, approval or action or, or any filing
with or notice to, any Government or other person, other than for a notification
filing to be made with the Brazilian anti-trust authorities within fifteen (15)
days after the date of this Agreement, or (b) require the consent or approval of
the EFX shareholders or the Holdings quotaholders, except for those previously
obtained.
7.4 Litigation; Contingencies. There are no Actions existing or,
to the knowledge of either EFX or Holding, threatened against, by or affecting
EFX or Holdings, which might have a material adverse effect on EFX or Holdings
and its consolidated subsidiaries after the date of this Agreement, or which
would prevent or impede the transactions contemplated by this Agreement. None of
EFX or Holdings has been charged with, or is under investigation with respect
to, any material charge concerning any violation of any provision of any Law.
7.5. Full Disclosure. No representation, warranty, covenant or
agreement of or relating to EFX or Holdings contained in this Agreement or in
any other written statement or certificate delivered by either EFX or Holdings,
pursuant to or in connection with this Agreement or in connection with the
transactions contemplated in this Agreement, contains or will contain any untrue
statement of a material fact or omits or will omit to state a material fact
necessary to make the statements contained in this Agreement or in any other
written statement or certificate delivered by either EFX or Holdings, pursuant
to this Agreement, not misleading.
8. CONDITIONS TO OBLIGATIONS OF EQUIFAX
The obligations of Equifax under this Agreement are subject to the
fulfillment and satisfaction of each and every one of the following conditions
on or prior to the Closing, any or all of which may be waived in writing in
whole or in part by Equifax:
8.1 Proceedings and Documents Satisfactory. All proceedings taken
in connection with the consummation of the transactions contemplated in this
Agreement and all documents and papers reasonably required in connection with
this Agreement, will be reasonably satisfactory to Equifax and its counsel, and
Equifax and its counsel will have timely received copies of the relevant
documents and papers, all in form and substance satisfactory to Equifax and its
counsel, as reasonably requested by Equifax or its counsel, provided that such
request is essential for the completion of the transactions contemplated in this
Agreement.
8.2 Representations and Warranties. The representations and
warranties contained in this Agreement and in any certificate, instrument,
schedule, agreement or other writing delivered by or on behalf of, or in respect
of, the Seller, Construtora AG or AG Telecom in connection with the transactions
contemplated by this Agreement will be true and
11
correct as of the date when made and will be deemed to be made again at and as
of the Closing Date and will be true and correct at and as of the Closing Date.
8.3 Compliance with Covenants and Conditions. The Seller,
Construtora AG and AG Telecom will have performed and complied with all
covenants, agreements and conditions required by this Agreement to be performed
or complied with by it prior to or on the Closing Date.
8.4 Closing Certificates. The Seller, Construtora AG and AG
Telecom will have delivered to Equifax certificates, executed by the appropriate
officers or other Representative of each party, dated as of the Closing,
certifying in such detail as Equifax may request as to the fulfillment and
satisfaction of the conditions specified in Paragraphs 8.2 and 8.3.
8.5 Opinion of Counsel. Equifax will have received from Tozzini
Freire Teixera e ▇▇▇▇▇, special Brazilian legal counsel for AG Telecom,
Construtora AG and AG Parent, a legal opinion, dated as of the Closing Date, in
substantially the form set forth in Exhibit E to this Agreement.
8.6 Consents. Equifax will have received from any and all Persons
and Governments any and all relevant consents, authorizations and approvals as
are necessary for the consummation of the transactions contemplated by this
Agreement, and all notices required to be given to all Persons and Governments
will have been given and all applicable waiting periods will have expired.
8.7 No Inconsistent Requirements. No Action will have been
commenced by any Government or Person seeking to enjoin or prohibit the
transactions contemplated by this Agreement.
8.8 No Injunction. No temporary restraining order, preliminary or
permanent injunction or other order by any court of competent jurisdiction which
prohibits the consummation of the transactions contemplated in this Agreement
will have been issued and remain in effect on the Closing Date; provided,
however, that the Parties will use all reasonable efforts to have each and every
relevant order or injunction vacated or reversed prior to the Closing Date.
8.9 Resignations. Any and all representatives of AG Telecom,
Construtora AG or the Seller or other persons appointed by or at the direction
or request of any of them who currently serve ▇▇▇▇▇▇ as a manager, director,
officer or representative shall have resigned from such positions prior to the
Closing Date.
8.10 Miscellaneous. Equifax and its counsel will have received any
and all other opinions, certifications, documents, instruments and agreements
from the Seller, Construtora AG and AG Telecom and their respective counsel, as
Equifax and its counsel may reasonably request, provided that such request is
essential for the completion of the transactions contemplated in this Agreement.
9. CONDITIONS TO OBLIGATIONS OF THE SELLER, CONSTRUTORA AG AND AG TELECOM
The obligations of the Seller, Construtora AG and AG Telecom under this
Agreement are subject to the fulfillment and satisfaction of each and every of
the following conditions on
12
or prior to the Closing, any or all of which may be waived in whole or in part
by the Seller, Construtora AG and AG Telecom:
9.1 Proceedings and Documents Satisfactory. All proceedings taken
in connection with the consummation of the transactions contemplated in this
Agreement and all documents and papers reasonably required in connection with
this Agreement, will be reasonably satisfactory to the Seller and AG Telecom and
their respective counsel, and the Seller, AG Telecom and their respective
counsel will have timely received copies of the relevant documents and papers,
all in form and substance satisfactory to the Seller, AG Telecom and their
respective counsel, as reasonably requested by the Seller, AG Telecom or their
respective counsel, provided that such request is essential for the completion
of the transactions contemplated in this Agreement.
9.2 Representations and Warranties. The representations and
warranties contained in this Agreement and in any certificate, instrument,
schedule, agreement or other writing delivered by or on behalf of, or in respect
of, Equifax in connection with the transactions contemplated by this Agreement
will be true and correct as of the date when made and will be deemed to be made
again at and as of the Closing Date and will be true and correct at and as of
the Closing Date.
9.3 Compliance with Covenants and Conditions. Equifax will have
performed and complied with all covenants, agreements and conditions required by
this Agreement to be performed or complied with prior to or on the Closing Date.
9.4 Closing Certificates. Equifax will have delivered to the
Seller and AG Telecom certificates, executed by the appropriate officers or
other Representative, dated as of the Closing, certifying in such detail as the
Seller or AG Telecom may request as to the fulfillment and satisfaction of the
conditions specified in Paragraphs 9.2 and 9.3.
9.5 Authorization. Each of EFX, Holdings and EV1 will have
delivered to the Seller, Construtora AG and AG Telecom written evidence of all
requisite corporate or other approvals or authorizations necessary for such
Party to authorize and approve the execution of this Agreement by such Party and
all other action necessary to enable such Party to comply with the terms of this
Agreement.
9.6 Consents. The Seller, Construtora AG and AG Telecom will have
received from any and all Persons and Governments any and all relevant consents,
authorizations and approvals as are necessary for the consummation of the
transactions contemplated by this Agreement, and all notices required to be
given to all Persons and Governments will have been given and all applicable
waiting periods shall have expired.
9.7 Opinion of Counsel. The Seller and AG Telecom will have
received from ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇ e Advogados, legal counsel to
Equifax, a legal opinion, dated the Closing Date, in substantially the form set
forth in Exhibits F-1 and F-2, respectively, to this Agreement.
9.8 No Inconsistent Requirements. No Action will have been
commenced by any Government or Person seeking to enjoin or prohibit the
transactions contemplated by this Agreement.
13
9.9 No Injunction. No temporary restraining order, preliminary or
permanent injunction or other order by any court of competent jurisdiction which
prohibits the consummation of the transactions contemplated in this Agreement
will have been issued and remain in effect on the Closing Date; provided,
however, that the Parties will use all reasonable efforts to have any and all
relevant order or injunction vacated or reversed prior to the Closing Date.
9.10 Miscellaneous. The Seller, Construtora AG and AG Telecom and
its counsel will have received any and all other opinions, certifications,
documents, instruments and agreements from EFX and Holdings and their respective
counsel, as the Seller and AG Telecom and its counsel may reasonably request,
provided that such request is duly motivated and is essential for the completion
of the transactions contemplated in this Agreement.
10. INDEMNITIES
10.1 Indemnification of Equifax. In accordance with and subject to
the further provisions of this Article 10, AG Telecom, Construtora AG and AG
Parent (each of which is an "Indemnitor") will, jointly and severally, indemnify
----------
and hold harmless Equifax and Equifax's Affiliates and their respective
officers, directors, agents and employees (collectively, "Indemnitees"), from
-----------
and against and in respect of any and all loss, damage, Liability, cost and
expense, including reasonable attorneys' fees and amounts paid in settlement
(collectively, the "Indemnified Losses"), suffered or incurred by any one or
------------------
more of the Indemnitees by reason of, or arising out of:
(a) any misrepresentation, breach of warranty or breach or
nonfulfillment of any agreement of the Seller, Construtora AG or AG Telecom
contained in this Agreement, or in any other certificate, schedule, instrument
or document delivered to Equifax by or on behalf of the Seller, Construtora AG
or AG Telecom pursuant to or in connection with the provisions of this
Agreement;
(b) any and all Taxes in respect of or measured by income or
relating to capital gains or other similarly imposed Taxes arising from or in
connection with the sale of the Quotas as contemplated by or provided for in
this Agreement; and
(c) any and all Actions, suits, proceedings, claims, demands,
assessments, judgments, fees and expenses, incident to any of the foregoing or
incurred in investigating or attempting to avoid any Actions, suits,
proceedings, claims, demands, assessments, judgments, fees and expenses or to
oppose the imposition of any Actions, suits, proceedings, claims, demands,
assessments, judgments, fees and expenses, or in enforcing this Agreement in
connection with any breach or default or threatened breach or default by an
Indemnitor, including without limitation the provisions of this Article 10.
10.2 Indemnification of AG Telecom, Construtora AG and AG Parent by
Equifax. In accordance with and subject to the further provisions of this
Article 10, each of EFX and Holdings (collectively, the "EFX Indemnitors") will,
---------------
jointly and severally, indemnify and hold harmless each of AG Telecom, AG
Parent, their affiliates and respective officers, directors, agents and
employees (collectively "AG Indemnitees") from and against and in respect of any
--------------
and all loss, damage, Liability, cost and expense, including reasonable
attorneys' fees and amounts paid in settlement (collectively, the "AG
--
Indemnified Losses") suffered or incurred by any one or more of the Indemnitees
------------------
by reason of, or arising out of:
14
(a) any misrepresentation, breach of warranty or breach or
nonfulfillment of any agreement of Equifax contained in this Agreement or in any
certificate, schedule, instrument or document delivered to AG Telecom,
Construtora AG or AG Parent by or on behalf of Equifax pursuant to the
provisions of this Agreement;
(b) any liabilities of EV1 or EV2 incurred prior to the Closing
and unrelated to the transactions contemplated by this Agreement; and
(c) any and all Actions, suits, proceedings, claims, demands,
assessments, judgments, fees and expenses, incident to any of the foregoing or
incurred in investigating or attempting to avoid any Actions, suits,
proceedings, claims, demands, assessments, judgments, fees and expenses or to
oppose the imposition of any Actions, suits, proceedings, claims, demands,
assessments, judgments, fees and expenses, or in enforcing this Agreement in
connection with any breach or default or threatened breach or default by the
Indemnitor, including without limitation the provisions of this Article 10.
10.3 No Contribution by ▇▇▇▇▇▇. ▇▇▇▇▇▇ will not have any Liability
to any of AG Telecom, Construtora AG or AG Parent as a result of any
misrepresentation or breach of representation or warranty relating to ▇▇▇▇▇▇
contained in this Agreement or any certificate, schedule, instrument, agreement
or other writing delivered by or on behalf of, or in respect of, any of AG
Telecom, Construtora AG or AG Parent pursuant to this Agreement or in connection
with the transactions contemplated by this Agreement.
10.4 Payment. Subject to the provisions of Paragraph 10.5 below,
(i) after a final, non-appealable judgment has been rendered or a settlement has
been reached in respect of a third party claim or Action, or (ii) in the case of
a claim for Indemnified Losses arising other than pursuant to a third party
claim or Action, after the award of the Arbitral Body has been issued or a
settlement has been reached, Indemnitor shall reimburse the Indemnitees within
30 days of written demand on the Indemnitor for any amounts to which Indemnitees
are entitled to indemnification pursuant to this Article 10.
10.5 Defense of Claims.
(a) Except as provided in Paragraph 10.5(b), if any Action by a
third party arises after the date of this Agreement for which Indemnitor may be
liable under the terms of this Agreement, then the Indemnitees will notify
Indemnitor(s) in accordance with the provisions of this Article 10, and will
give Indemnitor(s) a reasonable opportunity:
(i) to conduct any proceedings or negotiations in
connection with the Action and necessary or appropriate to defend the
Indemnitees;
(ii) to take all other required steps or proceedings to
settle or defend any Action; and
(iii) to employ counsel reasonably acceptable to
Indemnitees to contest any Action in the name of the Indemnitees or otherwise.
The expenses of all proceedings, contests or lawsuits with respect to the
Actions will be borne by Indemnitor(s).
15
(b) If Indemnitor(s) do(es) not assume the defense of, or if after
so assuming the Indemnitors fail to defend, any Action, then the Indemnitees may
defend against any claim or Action in the manner they may deem appropriate and
the Indemnitees may settle any claim or Action on the terms they deem
appropriate, and Indemnitor(s) will promptly reimburse the Indemnitees for the
amount of all expenses, legal and otherwise, reasonably and necessarily incurred
by the Indemnitees in connection with the defense against and settlement of any
claim or Action. If no settlement of any claim or Action is made, Indemnitor(s)
will satisfy any judgment rendered with respect to any claim or in any Action,
before the Indemnitees are required to do so, and pay all expenses, legal or
otherwise, reasonably and necessarily incurred by the Indemnitees in the defense
of any claim or Action.
(c) If a judgment is rendered against any of the Indemnitees in
any Action covered by the indemnification under this Agreement, or any Lien in
respect of any judgment attaches to any of the assets of any of the Indemnitees
or ▇▇▇▇▇▇, Indemnitor(s) will immediately upon any entry or attachment pay the
relevant judgment in full or discharge the relevant Lien unless, at the expense
and direction of Indemnitor(s), an appeal is taken under which the execution of
the judgment or satisfaction of the Lien is stayed. If and when a final judgment
is rendered in any action, Indemnitor(s) will forthwith pay any judgment or
discharge any Lien before any of the Indemnitees is compelled to do so.
(d) Any notice required to be given to Indemnitor(s) pursuant to
Paragraph 10.5(a) shall be given no later than the latter of: (i) the end of the
first half of the term within which an answer or other response to the Action is
required to be made (the "Answer Period") and (ii) two Business Days after
-------------
receipt by an Indemnitee of notice of the Action. Indemnitor(s) shall assume the
defense of any Action, if at all, by notice to Indemnitees no later than the
earlier of: (i) the end of the second third of the Answer Period and (ii) three
Business Days prior to the date by which an answer or other response to the
Action is required to be made. Indemnitor(s)' failure to notify Indemnitees
within the specified time shall be conclusively deemed an election by
Indemnitor(s) not to assume such defense. Any failure by Indemnitees to give the
requisite notice within the time specified in this Paragraph 10.5(d) will not
relieve Indemnitor(s) of the obligation to indemnify Indemnitees pursuant to
this Article 10 except to the extent that the defense of any Action is
materially prejudiced by the delay.
(e) The Indemnitor(s) or the Indemnitees, as appropriate, shall
have the right to participate in the defense of any Action related to an
Indemnified Loss at their sole cost and expense and the cost and expense of that
participation shall not be an Indemnified Loss. Notwithstanding anything
contained in this Article 10 to the contrary, Indemnitor(s) may not settle any
claim or Action, without the prior approval of Indemnitees, which approval shall
not be unreasonably withheld, delayed or conditioned. For purposes of Paragraphs
10.4 and 10.5, "Indemnitor", "Indemnitee" and "Indemnified Losses" only, shall
mean, as appropriate, "Indemnitor", "Indemnitee" and "Indemnified Losses" as
defined in Paragraph 10.1, or "EFX Indemnitor", "AG Indemnitees" and "AG
Indemnified Losses" as defined in Paragraph 10.2.
11. SURVIVAL.
11.1 Survival. The representations, warranties, covenants,
agreements and indemnities of the Parties contained in this Agreement, or in any
writing delivered pursuant to the provisions of this Agreement, will continue in
full force and effect for the periods specified below (the "Survival Period"):
---------------
16
(a) representations and warranties relating to title and ownership
of the Quotas, corporate authorization, organization, good standing and
qualification; compliance with laws, fraud or willful misrepresentation, and
completeness of disclosure, will survive indefinitely;
(b) representations and warranties relating to Taxes will survive
until expiration of any applicable statute or period of limitations, and any
extensions of the applicable statute or period of limitations; and
(c) all other representations, warranties, covenants, agreements
and indemnities will be of no further force and effect after the expiration of
three (3) years from the Closing Date;
Provided, however, that any claim for an Indemnified Loss presented in writing
to the indemnifying party (together with any relevant supporting documentation)
in accordance with the terms of this Agreement within the Survival Period will
continue to be a valid claim until resolved.
12. TERMINATION.
12.1 Termination for Certain Causes. This Agreement may be
terminated at any time prior to or on the Closing Date by Equifax, on the one
hand or by AG Parent on the other hand, upon written notice to the other as
follows:
(a) By AG Parent, if the terms, covenants or conditions of this
---------
Agreement to be complied with or performed by Equifax at or before the Closing
Date will not have been complied with or performed and any noncompliance or
nonperformance will not have been waived by AG Parent.
(b) By Equifax, if the terms, covenants or conditions of this
-------
Agreement to be complied with or performed by AG Telecom, Construtora AG or AG
Parent at or before the Closing Date will not have been complied with or
performed and any noncompliance or nonperformance will not have been waived by
Equifax.
(c) By AG Parent or by Equifax, if any Action will have been
-----------------------
instituted or threatened against any party to this Agreement to restrain or
prohibit, or to obtain substantial damages in respect of, this Agreement or the
consummation of the transactions contemplated in this Agreement, which, in the
reasonable and good faith opinion of any party, makes consummation of the
transactions contemplated in this Agreement inadvisable.
12.2 Procedure on and Effect of Termination.
(a) Pursuant to Paragraph 12.1 of this Agreement, written notice
of termination will be given to all other Parties by the Party electing to
terminate, and this Agreement will terminate upon the giving of notice, without
further action by any of the Parties, with the consequence and effect set forth
in this Paragraph 12.2.
(b) If for any reason on the Closing Date there has been
nonfulfillment of an undertaking by or covenant for Equifax or for AG Telecom,
Construtora AG and AG Parent not waived in writing by or on behalf of the Party
in whose favor the undertaking or covenant runs, the Party in whose favor the
undertaking or covenant runs, in addition to any other right or remedy available
to it for breach or non-performance of this Agreement, may refuse to
17
consummate the transactions contemplated by this Agreement without Liability or
obligation on its part whatsoever. Notwithstanding the foregoing, the
obligations of the Parties pursuant to Paragraphs 4.5, 4.6, 11.1, 12.1, 12.2,
13.6 and 13.7 will survive any termination.
13. MISCELLANEOUS.
13.1 Notices.
(a) All notices, demands or other communications required or
permitted to be given or made under this Agreement will be in writing and (i)
delivered personally, (ii) sent by an internationally recognized express courier
service, or (iii) sent by certified airmail, return receipt requested to the
intended recipient of the notice, demand or other communication at its address
set forth below. Any notice, demand or communication will be deemed to have been
duly given (x) immediately if personally delivered, (y) on the fourth Business
Day after delivery to an international express courier services, or (z) on the
tenth Business Day after delivery to the relevant postal service and in proving
the giving of any notice, demand or other communication, it will be sufficient
to show that the envelope containing the notice, demand or other communication
was duly addressed (as evidenced by the courier receipt). The addresses of the
Parties for purposes of this Agreement are:
If to AG Telecom, Construtora AG Av. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 215
or AG Parent: Bloco D - 4o andar
Sao Paulo - SP
Brazil
Tel. ▇▇-▇▇-▇▇▇▇-▇▇▇▇
Fax ▇▇-▇▇-▇▇▇▇-▇▇▇▇
Attn. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
in each case with a copy to: Attn. Tozzini Freire
▇▇▇▇▇▇▇▇ e Silva
Rua Libero Badaro, 293 - 19
Andar
CEP 01095-9000
Sao Paulo - SP - Brazil
Tel. ▇▇-▇▇-▇▇▇-▇▇▇▇
Fax. ▇▇-▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Freire
If to Equifax: Equifax Payment Services,
Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
Attn: ▇▇▇▇▇ ▇▇▇▇
Executive Vice President and
Group Executive
Equifax Payment Services,
Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
Attn.: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Assistant General Counsel
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
Attn.: ▇▇▇▇▇▇▇ ▇. Cinnamon
(b) Any Party may change the address to which notices, requests,
demands or other communications to the relevant Party will be delivered or
mailed by giving notice of the address change to the other Parties in the manner
provided in this Agreement.
13.2 Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, and all of which will
constitute one and the same instrument.
13.3 Entire Agreement. Except as expressly set forth to the
contrary in this Paragraph 13.3, this Agreement supersedes all prior discussions
and agreements between the Parties with respect to the purchase and sale of the
Quotas as described herein and this Agreement contains the sole and entire
agreement among the Parties with respect to the purchase and sale of the Quotas.
This Agreement will not be altered or amended except by an instrument in writing
signed by or on behalf of the Party entitled to the benefit of the provision
against whom enforcement is sought.
13.4 Reaffirmation of Certain Provisions of the Quotaholders
Agreement. Notwithstanding anything contained herein to the contrary, the
Parties hereby expressly agree that, while the Quotaholders Agreement, as
modified by the Modification, will terminate in conjunction with the
Transaction, pursuant to the terms contained in Article 8 thereof, the
provisions of Articles 5, 6 and 7 and all related interpretive provisions
thereof shall survive such termination and shall remain in full force and be
binding on and enforceable against the parties thereto.
13.5 Governing Language. Notwithstanding the translation of this
Agreement into any other language, the official language of this Agreement is
the English language, which will be controlling. Each document, agreement,
instrument, statement, notice or other communication required or permitted to be
given in connection with this Agreement will be in the English language.
13.6 Dispute Resolution.
(a) Any and all disputes (each, a "Disputed Matter") arising out
---------------
of or in connection with the execution, interpretation, performance or
nonperformance of this Agreement will be arbitrated and settled by the
procedures established in this Paragraph 13.6.
(b) Disputed Matters will be solely and finally settled by
arbitration, which will be conducted in New York, New York, U.S.A., by a panel
of three arbitrators, one of whom shall be selected by Equifax, one of whom
shall be selected by the Seller, and the third of who shall be selected by the
arbitrators selected by Equifax and the Seller. The arbitration procedure may be
initiated by any of the Parties by written notice to the other Party to the
Disputed Matter. Any notice will specify in reasonable detail the dispute being
submitted to
19
arbitration. The Parties renounce all recourse to litigation and agree that the
award of the arbitrators will be final and subject to no judicial review.
(c) The arbitrators will conduct the proceedings, including
arguments and briefs, in the English language and in accordance with the
international rules (the "Rules") of the American Arbitration Association
-----
("Arbitral Body"); provided that the provisions of this Agreement will prevail
-------------
in the event of any conflict between the Rules and the provisions of this
Agreement. The arbitrators will decide the issues submitted in accordance with
the provisions and commercial purposes of this Agreement, provided that all
substantive questions of law will be determined under the laws of Brazil
(without regard to the principles of conflicts of laws of any relevant state and
country). All decisions of the arbitrators will be in writing and submitted to
the Parties, and will set forth findings of fact and conclusions of law.
(d) The Parties will facilitate the arbitration by: (i) making
available to one another and to the arbitrators for examination, inspection and
extraction all documents, books, records and personnel under their control if
determined by the arbitrators to be relevant to the Disputed Matter; (ii)
conducting arbitration hearings to the greatest extent possible on successive
days; and (iii) observing strictly the time periods established by the Rules or
by the arbitrators for submission of evidence or briefs.
(e) In the final award, the arbitrators will divide all costs,
other than fees of counsel, incurred in conducting the arbitration, in any
manner as the arbitrators deem just and equitable under the circumstances.
Judgment on the award of the arbitrators may be entered into by any court having
jurisdiction over the Party against whom enforcement of the award is being
sought.
(f) Each Party agrees that any award of the arbitrators against it
and on which judgment is entered may be executed against the assets of that
Party in any jurisdiction, including Brazil and the United States of America. By
execution of this Agreement, each Party irrevocably consents to the jurisdiction
of any court having jurisdiction over that Party for the purpose of enforcing
any award. Each of the Parties irrevocably consents to the service of process by
registered mail, postage prepaid, international express courier, or by personal
service within or without Brazil or the State of Georgia, the State of Florida
or the State of New York, to the fullest extent permitted by applicable Law.
Each of the Parties hereby irrevocably designates and appoints CSC Network, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, as its respective designee,
appointee and local agent to receive for and on behalf of that Person, service
of process in such respective jurisdictions in any arbitration, legal action or
proceeding.
(g) Each Party irrevocably waives, to the fullest extent permitted
by law, any objection it may now or hereafter have to any suit, Action or
proceeding arising out of or relating to this Agreement that is brought in any
jurisdiction designated in the preceding subparagraph, for the purpose of
enforcing any award and further irrevocably waives any claim that any suit,
Action or proceeding so brought has been brought in an inconvenient forum.
(h) Notwithstanding any provision of this Paragraph 13.6 to the
contrary, any Party will be entitled to seek injunctive and other equitable
relief in any court of competent jurisdiction to enforce the provisions of this
Agreement.
20
13.7 Successors and Assigns. This Agreement will be binding upon
and will inure to the benefit of the Parties and their respective heirs,
executors, legal representatives, successors and assigns, but may not be
assigned by any Party without the written consent of all other Parties, except
to an Affiliate of any Party. The parties further agree that ▇▇▇▇▇▇ shall be
regarded as a third-party beneficiary to this Agreement and the Quotaholders
Agreement, as modified by the Modification, for all purposes hereunder and
thereunder.
13.8 Partial Invalidity and Severability. All rights and
restrictions contained in this Agreement may be exercised and will be applicable
and binding only to the extent that they do not violate any applicable laws and
are intended to be limited to the extent necessary to render this Agreement
legal, valid and enforceable. If any term of this Agreement, or part of this
Agreement, not essential to the commercial purpose of this Agreement will be
held to be illegal, invalid or unenforceable by a court of competent
jurisdiction, it is the intention of the Parties that the remaining terms of
this Agreement, or part of this Agreement, will constitute their agreement with
respect to the subject matter of this Agreement and all remaining terms, or
parts of this Agreement, will remain in full force and effect. To the extent
legally permissible, any illegal, invalid or unenforceable provision of this
Agreement will be replaced by a valid provision which will implement the
commercial purpose of the illegal, invalid or unenforceable provision.
13.9 Waiver. Any term or condition of this Agreement may be waived
at any time by the Party which is entitled to the benefit of the term, but only
if the waiver is evidenced by a writing signed by the relevant Party. No failure
on the part of any Party to this Agreement to exercise, and no delay in
exercising any right, power or remedy created under this Agreement, will operate
as a waiver thereof, nor will any single or partial exercise of any right, power
or remedy by any Party preclude any other or further exercise thereof or the
exercise of any other right, power or remedy. No waiver by any Party to this
Agreement or any breach of or default in any term or condition of this Agreement
will constitute a waiver of or assent to any succeeding breach of or default in
the same or any other term or condition of this Agreement.
13.10 Headings. The headings of particular provisions of this
Agreement are inserted for convenience only and will not be construed as a part
of this Agreement or serve as a limitation or expansion on the scope of any term
or provision of this Agreement.
13.11 Number and Gender. Where the context requires, the use of the
singular form in this Agreement will include the plural, the use of the plural
will include the singular, and the use of any gender will include any and all
genders.
13.12 Time of Performance. Time is of the essence.
13.13 Waiver of Dividends. Each of AG Telecom, Construtora AG and AG
Parent waives and relinquishes their respective rights to receive dividends or
other distributions, if any, in respect of ▇▇▇▇▇▇ for all periods either before
or after the date hereof, whether or not declared, and each covenants and agrees
to execute and deliver such other documents as my be necessary or convenient
under Brazilian law to evidence the same.
21
14. CERTAIN DEFINITIONS; INDEX OF DEFINITIONS
14.1 Certain Definitions. For purposes of this Agreement, the
following capitalized terms will have the meanings specified below (all terms
used in this Agreement which are not defined in this Paragraph 14.1 but defined
elsewhere in this Agreement, will have for purposes of this Agreement the
meanings set forth elsewhere in this Agreement):
"Action" will mean any action, suit, complaint, counter-claim,
------
claim, petition, set-off or administrative proceeding, whether at law, in equity
or otherwise, and whether conducted by or before any Government or other Person.
"Affiliate" of any Person will mean any other Person, at any
---------
time, directly or indirectly controlling, controlled by, or under direct or
indirect common control with the former Person. A Person will be deemed to
control another Person if that Person possesses, directly or indirectly, the
power to direct or cause the direction of the management and policies of the
other Person, whether through the ownership of voting securities, by contract or
otherwise.
"Article" and "paragraph" and like references are to this
------- ---------
Agreement unless otherwise specified, and all "Exhibits" are references to those
--------
attached to this Agreement and incorporated in this Agreement by this reference,
unless otherwise specified.
"Brazil" will mean the Federative Republic of Brazil.
------
"Business Day" will mean any day other than a Saturday, a
------------
Sunday or a day on which commercial banks in any of Atlanta, Georgia, United
States of America, St. Petersburg, Florida, United States of America, Buenos
Aires, Argentina, or Sao Paulo, Brazil, are required or authorized to be closed.
"Contract" will mean all written agreements, commitments and
--------
arrangements to which ▇▇▇▇▇▇ is a party or under which ▇▇▇▇▇▇ has any rights or
obligations.
"Designee" will mean any Affiliate of Equifax that is an
--------
entity formed under and subject to the laws of Brazil.
"Forum" will mean any national, provincial, municipal, local
-----
or foreign court, governmental agency, administrative body or agency, tribunal,
private alternative dispute resolution system, or arbitration panel.
"Government" will mean any national, provincial, state,
----------
municipal, local or foreign government or any ministry, department, commission,
board, bureau, agency, authority, instrumentality, unit, or taxing authority
thereof.
"Knowledge" will mean the actual knowledge of the relevant
---------
Person without any obligation of inquiry.
"Law" will mean all national, provincial, state, municipal,
---
local or foreign constitutions, statutes, rules, regulations, ordinances, acts,
codes, legislation, treaties, conventions and similar laws and legal
requirements, as in effect from time to time.
22
"Liability" will mean any liability or obligation whether
---------
known or unknown, asserted or unasserted, absolute or contingent, accrued or
unaccrued, liquidated or unliquidated and whether due or to become due.
"Lien" will mean any claim, mortgage, pledge, hypothecation,
----
security interest, encumbrance, lien or charge of any kind, or any rights of
others, however evidenced or created (including any agreement to give any of the
foregoing, any conditional sale or other title retention agreement, or any lease
having a similar effect or result).
"Order" will mean all orders, writs, judgments, decrees,
-----
rulings and awards of any Forum or Government.
"Parties" will mean the signatories to this Agreement, and a
-------
"Party" will mean any one of them.
-----
"Person" will mean and include an individual, a partnership, a
------
joint venture, a corporation, a trust, an unincorporated organization, any legal
or juridical entity, the equivalent of any of the foregoing under any Law, and
any Government.
"Proprietary Rights" will mean (i) all patents, patent
------------------
applications and registrations, trademarks, trademark applications and
registrations, copyright applications and registrations, trade names and
industrial designs, service marks and service ▇▇▇▇ applications, Brazilian or
foreign, owned or used by ▇▇▇▇▇▇ in or otherwise relating to the operation of
their respective businesses, (ii) all trade secrets, know-how, inventions and
other intellectual property, owned or used by ▇▇▇▇▇▇ relating to the operation
of their respective businesses; and (iii) all computer systems and application
software, including without limitation, all documentation relating to the
computer systems and application software, and the latest revisions of all
related object and source codes therefor, owned or used by ▇▇▇▇▇▇, in or
otherwise relating to the operation of their respective businesses.
"R$ or "Brazilian reais" will mean the lawful currency of
----------------------
Brazil.
"Relevant Records" will mean, collectively, (i) the written
----------------
records of ▇▇▇▇▇▇, (ii) any writings prepared by Equifax or its Affiliates and
relating to ▇▇▇▇▇▇, and (iii) any writings prepared by or received by either
Socma Americana S.A. or its Affiliates or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ S.A. or its
affiliates relating to ▇▇▇▇▇▇ and delivered to either ▇▇▇▇▇▇ or Equifax or its
Affiliates. For the avoidance of doubt, writings prepared by an officer or
director of any Relevant Person shall be a writing of such Person.
"Representative" of a Party will mean that Party's directors,
--------------
officers, partners, employees, agents, accountants, and lawyers.
"Taxes" will mean any taxes, levies, imposts, duties, fees,
-----
assessments, deductions, withholdings or other charges of whatever nature,
including without limitation income, gross receipts, excise, property, sales,
transfer, license, payroll, withholding, social security, and franchise taxes,
imposed or levied by Brazil, or any state, local or foreign Government, or by
any department, agency or other political subdivision or taxing authority
thereof or therein and all interests, penalties, additions to tax, and other
similar liabilities with respect to the Taxes and relating to any period on or
prior to the Closing Date.
23
14.2 Index to Definitions. The definitions for the following
defined terms used in this Agreement can be found as follows:
Defined Term Paragraph or Reference
------------ ----------------------
Acquisition Price 1.1
AG Group Preamble
AG Indemnitees 10.2
AG Parent Preamble
AG Telecom Preamble
Answer Period 10.3
Arbitral Body 13.6
Book Value 2.1
Closing 3.1
Closing Date 3.1
Construtora AG Preamble
Disputed Matter 13.6
EFX Preamble
EFX Indemnitees 10.2
EFX Indemnitors 10.2
Equifax Preamble
EV1 2.2
EV2 2.2
Holdings Preamble
Indemnified Losses 10.1
Indemnitees 10.1
Indemnitor 10.1
Modification Preamble
Quotaholders Agreement Preamble
Quotas Preamble
Related Parties 5.12
Rules 13.6
Seller Preamble
Survival Period 11.1
Transaction Preamble
▇▇▇▇▇▇ Preamble
24
IN WITNESS WHEREOF, the Parties have executed this Agreement
on May 24, 2001, in the City and State of Sao Paulo, Brazil.
EQUIFAX PAYMENT SERVICES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
EQUIFAX DO BRASIL HOLDINGS LTDA.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Buosi
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Buosi
---------------------------------
CONSTRUTORA ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ S.A.
By: /s/ Luiz Otavio Mourrau
-----------------------------------------
Name: Luiz Otavio Mourrau
--------------------------------
By: /s/ ▇▇▇▇▇ Quintellas
-----------------------------------------
Name: ▇▇▇▇▇ Quintellas
--------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ TELECOMUNICACOES LTDA.
By: /s/ Luiz Otavio Mourrau
------------------------------------------
Name: Luiz Otavio Mourrau
----------------------------------
By: /s/ ▇▇▇▇▇ Quintellas
------------------------------------------
Name: ▇▇▇▇▇ Quintellas
----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ S.A.
By: /s/ Luiz Otavio Mourrau
------------------------------------------
Name: Luiz Otavio Mourrau
---------------------------------
By: /s/ ▇▇▇▇▇ Quintellas
------------------------------------------
Name: ▇▇▇▇▇ Quintellas
---------------------------------
[Signatures Continue on Following Page]
25
[Signatures Continued from Preceding Page]
▇▇▇▇▇▇-SOLUCOES EM MEIOS DE PAGAMENTO LTDA.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ Naleto
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇ Naleto
WITNESSES
1. /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇.
--------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇.
RG:
2. /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇:
26
