Exhibit 2a-4
AMENDMENT NO. 4 TO STOCK PURCHASE AGREEMENT
THIS AMENDMENT NO. 4 TO STOCK PURCHASE AGREEMENT (this "Amendment No.
4") is made as of the 27th day of October, 2004, by and among Telefonica
Moviles, S.A., a corporation organized under the laws of the Kingdom of Spain
("Purchaser"), each of the entities listed on the signature pages hereto (each,
a "Seller" and collectively, the "Sellers") and, solely to the extent this
Amendment No.3 amends, modifies or affects in any manner Sections 3.1(e),
6.13(b), 6.16, 6.17, 6.18, 6.19, 6.20, 6.21, 6.23, 6.24, 6.25, 6.26, 6.38, 6.40,
8.2 and 8.3 and Articles X, XI or XII of the Stock Purchase Agreement (as
defined below), BellSouth Corporation ("Seller Parent"). Capitalized terms used
but not otherwise defined herein shall have the meanings ascribed to such terms
in the Stock Purchase Agreement.
PRELIMINARY STATEMENTS
WHEREAS, Purchaser, Sellers and Seller Parent (solely for purposes of
Sections 3.1(e), 6.13(b), 6.16, 6.17, 6.18, 6.19, 6.20, 6.21, 6.23, 6.24, 6.25,
6.26, 6.38, 6.40, 8.2 and 8.3 and Articles X, XI and XII of the Stock Purchase
Agreement) are parties to a Stock Purchase Agreement, dated as of March 5, 2004,
as amended by Amendment No.1 to the Stock Purchase Agreement, dated as of July
8, 2004, Amendment No.2 to the Stock Purchase Agreement, dated as of October 4,
2004 and Amendment No. 4 to the Stock Purchase Agreement, dated as of October
14, 2004 (collectively, the "Stock Purchase Agreement").
WHEREAS, in accordance with Section 12.2 of the Stock Purchase
Agreement, Purchaser, Sellers and Seller Parent desire to amend the Stock
Purchase Agreement on the terms and subject to the conditions set forth in this
Amendment No. 4 to make certain amendments as set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and upon the terms and
subject to the conditions hereinafter set forth, the parties hereto intending to
be legally bound, hereby agree as follows:
ARTICLE I
Amendments
1.1 Amendments to Article I.
(a) The parties hereto agree that the following definitions are hereby
added to Section 1.1 of the Stock Purchase Agreement:
"Amendment No. 3 to the Agreement" shall mean that certain
Amendment No. 3 to this Agreement, dated October 14, 2004, by and among
Purchaser, Sellers and, solely to the extent Amendment No.2 amends,
modifies or affects in any manner Sections 3.1(e), 3.1(f), 3.4,
6.13(b), 6.16, 6.17, 6.18, 6.19, 6.20, 6.21, 6.23, 6.24, 6.25, 6.26,
6.38, 6.40, 8.2 and 8.3 and Articles X, XI or XII of this Agreement,
Seller Parent.
"Amendment No. 4 to the Agreement" shall mean that certain
Amendment No. 2 to this Agreement, dated October __, 2004, by and among
Purchaser, Sellers and, solely to the extent Amendment No. 4 amends,
modifies or affects in any manner Sections 3.1(e), 3.1(f), 3.4,
6.13(b), 6.16, 6.17, 6.18, 6.19, 6.20, 6.21, 6.23, 6.24, 6.25, 6.26,
6.38, 6.40, 8.2 and 8.3 and Articles X, XI or XII of this Agreement,
Seller Parent.
1.2 Amendment to Section 7/4(c)(i).
(a) The parties hereto agree that Section 7.4.(c)(i) of the Stock
Purchase Agreement is hereby amended and restated in its entirety as follows:
"(i) The representations and warranties of Purchaser contained
herein and in the Purchaser Representations Certificate shall have been
accurate, true and correct in all material respects (except that all
such representations and warranties that are qualified by Purchaser
Material Adverse Effect shall be accurate, true and correct in all
respects) on as of the date hereof; provided, however, that the
representations and warranties of Purchaser contained in Sections 5.1,
5.2, and 5.7 shall also be accurate, true and correct in all material
respects (except that all such representations and warranties that are
qualified by Purchaser Material Adverse Effect shall be accurate, true
and correct in all respects) on and as of any Subsequent Closing Date
with the same force and effect as though made by Purchaser on and as of
the Subsequent Closing Date."
ARTICLE II
OTHER AGREEMENTS
2.1 Perfection of Transfers by ▇▇▇▇ Holdings. Notwithstanding anything
to the contrary contained in the Stock Purchase Agreement, Purchaser hereby
acknowledges and agrees that, subject to the satisfaction of the applicable
closing conditions set forth in Article VII of the Stock Purchase Agreement, it
shall not delay the Subsequent Closing that includes the transfer of the
Colombian Acquired Companies, the Nicaraguan Acquired Companies, the Peruvian
Acquired Companies, the Uruguayan Acquired Companies and the Venezuelan Acquired
Companies as a result of (a) any delay in the perfection of the transfers (the
"Liquidating Distributions") by ▇▇▇▇ Holdings of the Equity Interests in the
Acquired Companies of which it is the registered owner to Latin America Cellular
Holdings B.V. ("LACHBV") or (b) the failure of ▇▇▇▇ Holdings to distribute
assets and liabilities with respect to Dutch taxes for the period (the "Dutch
Residency Period") in 2004 in which ▇▇▇▇ Holdings was a resident of the
Netherlands. BellSouth represents that LACHBV is the owner of the Equity
Interests transferred pursuant to the Liquidating Distributions. To BellSouth's
knowledge, the steps required to perfect title to such Equity Interests after
such Subsequent Closing are set out on Exhibit A, and BellSouth agrees to assist
Purchaser with such steps as reasonably requested by Purchaser, including the
execution of the proxy attached hereto as Exhibit B on the Subsequent Closing
Date. Purchaser
agrees that, after such Subsequent Closing, (i) BellSouth shall continue to
control the dissolution of ▇▇▇▇ Holdings, including the preparation and filing
of ▇▇▇▇ Holdings' Dutch income tax returns for the Dutch Residency Period,
(ii) ▇▇▇▇ ▇▇▇▇▇▇▇ (or another designee of BellSouth) shall remain the liquidator
of ▇▇▇▇ Holdings in connection with such dissolution, (iii) the completion of
such dissolution may be deferred for a reasonable period until the Liquidating
Distributions are perfected, and (iv) ▇▇▇▇ Holdings and LACHBV shall enter an
Assignment and Assumption Agreement in the form attached hereto as Exhibit C
pursuant to which LACHBV agrees to pay the Dutch corporate income tax liability
of ▇▇▇▇ Holdings for the Dutch Residency Period. BellSouth agrees that it shall
promptly indemnify LACHBV for the excess of such corporate income taxes paid on
behalf of ▇▇▇▇ Holdings over the amount of a Dutch capital tax refund due to
▇▇▇▇ Holdings that was assigned to LACHBV pursuant to a certain Assignment and
Assumption Agreement dated October 27, 2004.
ARTICLE III
MISCELLANEOUS
3.1 Ratification and Confirmation of the Stock Purchase Agreement; No
Other Changes. Except as modified by this Amendment No. 4, the Stock Purchase
Agreement is hereby ratified and confirmed in all respects. Nothing herein shall
be held to alter, vary or otherwise affect the terms, conditions and provisions
of the Stock Purchase Agreement, other than as contemplated herein.
3.2 Severability. If any provision of this Amendment No. 4 shall be
held invalid, illegal or unenforceable, the validity, legality or enforceability
of the other provisions hereof shall not be affected thereby, and there shall be
deemed substituted for the provision at issue a valid, legal and enforceable
provision as similar as possible to the provision at issue.
3.3 Applicable Law. This Amendment No. 4 shall be governed by and
construed and enforced in accordance with the internal laws of the State of New
York without giving effect to the principles of conflicts of law thereof.
3.4 Counterparts. This Amendment No. 4 may be executed and delivered
(including by facsimile transmission) in one or more counterparts, all of which
shall be considered one and the same agreement and shall become effective when
one or more counterparts have been signed by each of the parties and delivered
to the other parties, it being understood that all parties need not sign the
same counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 4
to be signed, all as of the date first written above.
TELEFONICA MOVILES, S.A.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Muguiro
Name: ▇▇▇▇▇▇ ▇▇▇▇▇ Marques /▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Muguiro
Title: General Manager /General Counsel
BELLSOUTH INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory
BELLSOUTH ENTERPRISES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory
BELLSOUTH INTERNATIONAL LATIN AMERICA, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory
BELLSOUTH ARGENTINA HOLDINGS, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory
BELLSOUTH CHILE, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory
BELLSOUTH CHILE HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory
BELLSOUTH CORPORATION,
To the extent that this
Amendment No.3 amends,
modifies or affects in any
manner the Sections and
Articles of the Stock
Purchase Agreement
identified in the Preamble
only
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory
