EXHIBIT 4.0
▇▇▇▇ CANADA INTERNATIONAL INC.
SHARE PURCHASE AGREEMENT
DATED MAY 31, 2002
EXECUTION COPY
SHARE PURCHASE AGREEMENT
among
▇▇▇▇ CANADA INTERNATIONAL INC.,
▇▇▇▇ CANADA INTERNATIONAL INVESTMENTS LIMITED.
and
AMERICA MOVIL, S.A. DE C.V.
dated as of
May 31, 2002
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
1.1 Defined Terms.......................................................1
ARTICLE II
PURCHASE AND SALE OF THE PURCHASED SHARES
2.1 Purchase and Sale of the Purchased Shares...........................6
2.2 Consideration for the Purchased Shares..............................6
2.3 Closing.............................................................7
2.4 Closing Deliveries..................................................7
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE BCI GROUP
3.1 Organization and Good Standing......................................8
3.2 Authorization of Agreement..........................................8
3.3 No Conflicts........................................................8
3.4 Governmental Consents and Approvals.................................9
3.5 Ownership and Transfer of the Purchased Shares......................9
3.6 Litigation..........................................................9
3.7 No Broker..........................................................10
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF AMX
4.1 Organization and Good Standing.....................................10
4.2 Authorization of Agreement.........................................10
4.3 No Conflicts.......................................................10
4.4 Governmental Consents and Approvals................................11
4.5 Litigation.........................................................11
4.6 No Broker..........................................................11
4.7 Tess Notes.........................................................11
ARTICLE V
COVENANTS OF THE BCI GROUP
5.1 BCI BVI V..........................................................12
5.2 Non-Compete........................................................12
5.3 No-Shop............................................................12
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TABLE OF CONTENTS
(continued)
Page
ARTICLE VI
ADDITIONAL AGREEMENTS
6.1 Public Announcements...............................................13
6.2 Regulatory and Other Authorizations; Notices and Consents..........13
6.3 Notice of Developments.............................................13
6.4 Further Action.....................................................13
ARTICLE VII
CONDITIONS PRECEDENT TO CLOSING
7.1 Conditions Precedent to Obligations of AMX.........................14
7.2 Conditions Precedent to Obligations of the BCI Group...............15
ARTICLE VIII
INDEMNIFICATION
8.1 Survival of Representations and Warranties.........................16
8.2 Indemnification....................................................16
8.3 Indemnification Procedures.........................................16
ARTICLE IX
TERMINATION AND WAIVER
9.1 Grounds for Termination............................................17
9.2 Effect of Termination..............................................17
9.3 Waiver.............................................................18
ARTICLE X
MISCELLANEOUS
10.1 Expenses...........................................................18
10.2 Notices............................................................18
10.3 Headings...........................................................19
10.4 Severability.......................................................19
10.5 Entire Agreement...................................................20
10.6 Assignment.........................................................20
10.7 No Third Person Beneficiaries......................................20
10.8 Amendment..........................................................20
10.9 Governing Law......................................................20
10.10 Arbitration........................................................20
10.11 Counterparts.......................................................21
10.12 Waiver of Jury Trial...............................................22
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TABLE OF CONTENTS
(continued)
Page
10.13 Set-off............................................................22
10.14 Specific Performance...............................................22
iii
TABLE OF CONTENTS
LIST OF EXHIBITS:
Exhibit A Form of 2003 Note Guarantee
Exhibit B Form of BCE Agreement
Exhibit C Form of October Payment Release
Exhibit D Form of Reimbursement and Guarantee Fee Agreement
Termination Letter
Exhibit E Form of Supplemental Agreement Release
Exhibit F Form of Technical Assistance and Secondment Agreements
Termination Letters
Exhibit G Form of Tess Notes Releases
Exhibit H Form of 2003 Note
Exhibit I Form of Opinion of Franck, Galicia y ▇▇▇▇▇▇, S.C.
Exhibit J Form of Opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Exhibit K Form of Opinion of ▇▇▇▇▇-▇▇▇▇▇▇, Raworth & ▇▇▇▇▇▇▇▇
Exhibit L Form of Opinion of ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇
Exhibit M Form of Amendment to Memorandum and Articles of Association
of BCI BVI V
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SHARE PURCHASE AGREEMENT (this "Agreement"), dated as of May
31, 2002, among ▇▇▇▇ Canada International Inc., a corporation organized under
the laws of Canada ("BCI"), and its wholly owned subsidiary ▇▇▇▇ Canada
International Investments Limited, a corporation organized under the laws of the
British Virgin Islands ("BCI Investments," and together with BCI, the "BCI
Group"), and America Movil, S.A. de C.V., a sociedad anonima de capital variable
organized under the laws of Mexico ("AMX").
WHEREAS, BCI, AMX (as successor in interest to Telefonos de
Mexico, S.A. de C.V.) and SBC International, Inc., a corporation organized under
the laws of the State of Delaware ("SBCI"), have entered into an Amended and
Restated Joint Venture Agreement, dated as of September 25, 2000, as amended and
supplemented from time to time, pursuant to which Telecom Americas Ltd., a
company organized under the laws of Bermuda ("TAL"), was formed;
WHEREAS, BCI Investments owns 10,353.94 common shares of TAL
(the "Purchased Shares"), representing as of the date of this Agreement 39.09%
of the issued and outstanding common and preferred shares of TAL; and
WHEREAS, BCI Investments now desires to sell to AMX, and AMX
desires to purchase from BCI Investments, the Purchased Shares, in accordance
with the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements and covenants hereinafter set forth, and for good and valuable
consideration, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms shall
have the following meanings:
"2003 Note" shall have the meaning ascribed thereto in Section 2.2.
"2003 Note Guarantee" shall mean the guarantee by Telcel and AMX of the
2003 Note, substantially in the form of the guarantee attached hereto as Exhibit
A.
"Action" shall mean any claim, action, suit, demand, Order, consent,
arbitration, inquiry, proceeding or investigation by or before any Governmental
Authority.
"Affiliate" shall mean, with respect to any specified Person, any other
Person that directly, or indirectly through one or more intermediaries,
Controls, is Controlled by, or is under Common Control with, such specified
Person.
"Amended and Restated Credit Agreement" shall mean that Amended and
Restated Credit Agreement dated as of March 8, 2002 (as amended or supplemented
from time to time), among BCI, as Borrower, and Citibank Canada, as Co-arranger,
Syndication Agent and Lender, and Bank of Montreal, as Co-arranger,
Administrative Agent, Documentation Agent and Lender, and Royal Bank of Canada,
as Co-arranger and Lender, and the Toronto Dominion Bank, as Managing Agent and
Lender and Credit Suisse First Boston, National Bank of Canada and BNP Paribas
(Canada), as Lenders.
"Americel" shall mean Americel S.A., a corporation organized under the
laws of the Federative Republic of Brazil.
"AMX" shall have the meaning ascribed thereto in the Preamble.
"AM Latin America" shall mean AM Latin America, LLC, a limited
liability company organized under the laws of Delaware.
"ANATEL" shall mean the Agencia Nacional de Telecomunicacoes - ANATEL
of the Federative Republic of Brazil.
"BCE" shall mean BCE Inc., a corporation organized under the laws of
Canada.
"BCE Agreement" shall mean an agreement between AMX and BCE
substantially in the form attached hereto as Exhibit B.
"BCI" shall have the meaning ascribed thereto in the Preamble.
"BCI Group" shall have the meaning ascribed thereto in the Preamble.
"BCI BVI V" shall have the meaning ascribed thereto in Section 5.1.
"BCI Investments" shall have the meaning ascribed thereto in the
Preamble.
"BCI Lenders" shall mean the lenders under the Amended and Restated
Credit Agreement.
"BCI Lenders Consent" shall mean (i) the consent of the BCI Lenders
under the Amended and Restated Credit Agreement to the sale by BCI Investments
to AMX (or its designee(s)) of the Purchased Shares hereunder, (ii) the consent
of the BCI Lenders to the amendments to the Shareholders Agreement set forth in
that Agreement and Amendment dated as of the date hereof, among BCI, BCI
Investments, AMX and AM Latin America, LLC and (iii) the release of the Pledge.
"BCI Noteholders Approval" shall mean such approvals of the holders of
the BCI Notes as are required under the Indenture and applicable Law to permit
the consummation of the transactions contemplated in this Agreement and the
other Transaction Documents.
"BCI Notes" shall mean the 11% senior unsecured notes of BCI due
September 29, 2004.
"BCI Shareholders Approval" shall mean such approvals of the
shareholders of BCI as are required under applicable Law to permit the
consummation of the transactions contemplated in this Agreement and the other
Transaction Documents.
"Business" shall have the meaning ascribed thereto in Section 5.2.
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"Business Day" shall mean any day that is not a Saturday, a Sunday or
any other day on which banks or stock exchanges are required or authorized by
Law to be closed in ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ or the
City of Sao Paulo, Brazil.
"▇▇▇▇" shall mean the Conselho Administrativo de Defesa Economica -
▇▇▇▇ of the Federative Republic of Brazil.
"Cash Payment" shall have the meaning ascribed thereto in Section 2.2.
"Closing" shall have the meaning ascribed thereto in Section 2.3.
"Closing Date" shall mean the date on which the Closing occurs.
"Closing Order" shall mean an order of a court of competent
jurisdiction approving the performance by BCI of its obligations under this
Agreement, which order has not been stayed.
"Control" (including the terms "Controlled by" and "under Common
Control with"), with respect to the relationship between or among two or more
Persons, shall mean the possession, directly or indirectly or as trustee or
executor, of the power to direct or cause the direction of the affairs or
management of a Person, whether through the ownership of voting securities, as
trustee or executor, by contract or otherwise, including, without limitation,
the ownership, directly or indirectly, of securities having the power to elect a
majority of the board of directors or similar body governing the affairs of such
Person; provided, however, that a Person shall not be deemed to Control any
Person that is a publicly traded company if its ownership of voting securities
does not constitute a majority of voting securities of such Person.
"Dispute" shall have the meaning ascribed thereto in Section 10.10.
"Equity Interests" shall mean, with respect to any Person, all of the
shares of capital stock of (or other ownership or profit interests in) such
Person, all of the warrants, options or other rights for the purchase or
acquisition from such Person of shares of capital stock of (or other ownership
or profit interests in) such Person, all of the securities (including debt
securities) convertible into or exchangeable for shares of capital stock of (or
other ownership of profit interests in) such Person or warrants, rights or
options for the purchase or acquisition from such Person of such shares (or such
other interests), and all of the other ownership or profit interests in such
Person (including, without limitation, partnership, member or trust interests
therein), whether voting or non-voting, and whether or not such shares,
warrants, options, rights or other interests are issued or otherwise existing on
any date of determination.
"Funding Agreement and Amendment" shall mean that Funding Agreement and
Amendment dated as of the date hereof, among BCI, BCI Investments, AMX, AM Latin
America, SBCI Brazil Holding and TAL.
"Governmental Authority" shall mean, in any applicable jurisdiction,
any federal, provincial, state, territorial or local government, any
governmental, regulatory or administrative authority, agency or commission or
any court or tribunal or arbitral body.
"Governmental Order" shall mean any Order, writ, judgment, injunction,
decree, agreement, stipulation, determination or award of any Governmental
Authority.
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"ICC" shall have the meaning ascribed thereto in Section 10.10.
"Indemnified Party" shall have the meaning ascribed thereto in Section
8.2.
"Indemnifying Party" shall have the meaning ascribed thereto in Section
8.2.
"Indenture" shall mean the indenture dated September 29, 1999, between
BCI and Montreal Trust Company - Compagnie Montreal Trust, in respect of the BCI
Notes, as amended and supplemented from time to time.
"Law" shall mean, in any applicable jurisdiction, any federal,
provincial, state, territorial, local or foreign statute, law, treaty,
ordinance, regulation, rule, code, order, other requirement or rule of law.
"Liens" shall mean all liens (including, without limitation,
environmental and tax liens), mortgages, charges, pledges, security interests or
encumbrances of any nature whatsoever.
"Loss" or "Losses" shall mean any liabilities, losses, damages, claims,
costs, and expenses (including reasonable and documented attorney's fees).
"October Payment Release" shall mean a release of BCI from its
obligations pursuant to Section 3.05(e)(ii) of the Reorganization Agreement,
substantially in the form of the release attached hereto as Exhibit C.
"Order" shall mean the entry in any judicial or administrative
proceeding brought under any Law by any Governmental Authority or any other
Person for a permanent or preliminary injunction or other similar order.
"Person" shall mean any individual, partnership, firm, limited
liability company, corporation, association, trust, unincorporated organization
or other entity, as well as any syndicate or group, that would be deemed to be a
person under section 13(d)(3) of the Securities Exchange Act of 1934, as
amended.
"Pledge" shall mean the charge in favor of the BCI Lenders on the
Purchased Shares.
"Purchased Shares" shall have the meaning set forth in the Recitals to
this Agreement.
"Reimbursement and Guarantee Fee Agreement Termination Letter" shall
mean an agreement to terminate, with respect to BCI, the Reimbursement and
Guarantee Fee Agreement dated as of February 8, 2002 among TAL, AMX and BCI,
substantially in the form of the agreement attached hereto as Exhibit D.
"Reorganization Agreement" shall mean the Reorganization Agreement
dated as of January 22, 2002 among BCI, AMX, SBCI, BCI Investments, AM Latin
America, LLC and TAL.
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"SBCI" shall have the meaning ascribed thereto in the Recitals.
"SBCI Brazil Holding" shall mean SBC International - Brazil Holding,
Ltd., a company organized under the laws of the Cayman Islands.
"SBCI Consent" shall mean the consent of SBCI and SBCI Brazil Holding
under the Shareholders Agreement to the transfer of the Purchased Shares
contemplated hereby.
"Sercotel" shall mean Sercotel S.A. de C.V., a sociedad anonima de
capital variable organized under the laws of Mexico.
"Shareholders Agreement" shall mean that Amended and Restated
Shareholders Agreement, dated as of April 19, 2002, among BCI Investments, AM
Latin America, LLC, SBCI Brazil Holding and TAL.
"Side Letter Agreement" shall mean the letter agreement dated March 8,
2002 among Bank of Montreal, Citibank Canada, The Toronto-Dominion Bank, Royal
Bank of Canada, National Bank of Canada, BNP Paribas (Canada), Credit Suisse
First Boston Canada and BCI, regarding the exercise of certain rights under the
Purchased Shares given to the Administrative Agent in connection with the
Amended and Restated Credit Agreement.
"Subsidiary" or "Subsidiaries" of any Person shall mean any other
Person of which (i) the first mentioned Person or any Subsidiary thereof is a
general partner, or the voting power to elect a majority of the board of
directors or others performing similar functions with respect to such other
Person is held by the first mentioned Person and/or by any one or more of its
Subsidiaries and (ii) more than 50% of the voting Equity Interests of such other
Person is, directly or indirectly, owned or controlled by such first mentioned
Person and/or by any one or more of its Subsidiaries.
"Supplemental Agreement Release" shall mean a release of BCI from its
outstanding obligations under the Telecom Americas Supplemental Agreement dated
July 12, 2001 among BCI Investments, AM Latin America, LLC, SBC International
-Brazil Holding, and TAL, as acknowledged and agreed by BCI, AMX and SBCI,
pursuant to a release substantially in the form attached hereto as Exhibit E.
"TAIL" shall mean Telecom Americas Investments Limited.
----
"TAL" shall have the meaning ascribed thereto in the Recitals.
"TAL Companies" shall mean the Subsidiaries of TAL and any operating
company in which TAL, directly or indirectly, holds an Equity Interest.
"Technical Assistance and Secondment Agreements Termination Letters"
shall mean the agreements to terminate (i) the Technical Services Agreement,
dated as of April 7, 1997, between BCI and Americel, (ii) the Secondment
Agreement, dated as of July 2, 1997, between BCI and Americel, (iii) the
Technical Services Agreement, dated as of April 14, 1998, between BCI and Telet
and (iv) the Secondment Agreement, dated as of April 14, 1998, between BCI and
Telet, substantially in the form of the agreements attached hereto as Exhibit F.
5
"Telcel" shall mean Radiomovil Dipsa, S.A. de C.V., a sociedad anonima
de capital variable organized under the laws of Mexico.
"Telet" shall mean Telet S.A., a corporation organized under the laws
of the Federative Republic of Brazil.
"Tess Notes" shall mean (i) the Amended and Restated 3.716% Guaranteed
Note Due 2004, No. S-1, dated November 6, 2001, in the principal amount of
U.S.$222,980,169 made by Telecom Americas Investments Ltd. in favor of
Inmobiliaria Carso, S.A. de C.V. and (ii) the 3.399% Guaranteed Note Due 2004,
No. S-1, dated November 6, 2001, in the principal amount of U.S.$92,657,331 made
by Telecom Americas Investments Ltd. in favor of Carso Global Telecom, S.A. de
C.V. and subsequently transferred to America Telecom, S.A. de C.V.
"Tess Notes Releases" shall mean the full and unconditional release of
BCI by the holders of the Tess Notes from any and all obligations of BCI under
BCI's guarantees of the Tess Notes and under the fiscal agency agreement related
to the Tess Notes, substantially in the form of the releases attached hereto as
Exhibit G.
"Transaction Documents" shall mean this Agreement, the 2003 Note, the
2003 Note Guarantee, the Funding Agreement and Amendment, the October Payment
Release, the Reimbursement and Guarantee Fee Agreement Termination Letter, the
Supplemental Agreement Release, the Technical Assistance and Secondment
Agreement Releases, the Tess Notes Releases and any other agreement, certificate
or instrument delivered pursuant to this Agreement.
"U.S.$" or "U.S. dollars" shall mean United States dollars.
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ARTICLE II
PURCHASE AND SALE OF THE PURCHASED SHARES
2.1 Purchase and Sale of the Purchased Shares. Upon the terms and subject
to the conditions set forth in this Agreement, at the Closing, BCI shall cause
BCI Investments to sell, and BCI Investments shall sell, to AMX (or its
designee(s)), and AMX (or its designee(s)) shall purchase from BCI Investments,
the Purchased Shares, free and clear of all Liens and together with all rights
attaching thereto.
2.2 Consideration for the Purchased Shares. The aggregate
consideration to be paid to BCI Investments for the Purchased Shares shall
consist of (a) a cash payment in U.S. dollars equal to U.S. $150,000,000 less,
if the Closing Date occurs before October 1, 2002, an amount in U.S. dollars
equal to the product obtained by multiplying (i) U.S. $20,625,000, times (ii)
the fraction that the actual number of days between the Closing Date and October
1, 2002 represent of a 365-day calendar year (the "Cash Payment"), and (b) a
non-interest bearing, non-negotiable promissory note of Sercotel due March 1,
2003, in the principal amount of U.S.$220,000,000, payable to BCI Investments
and guaranteed by AMX and Telcel, substantially in the form attached hereto as
Exhibit H (the "2003 Note").
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2.3 Closing. The closing of the transactions provided for in this
Agreement (the "Closing") shall be held at the offices of Cleary, Gottlieb,
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ as soon as practicable
(but in any event no more than five (5) Business Days) after each of the
conditions set forth in Article VII of this Agreement (other than those
conditions relating to the delivery of certificates on or prior to the Closing)
shall have been fulfilled or waived in accordance herewith, or at such other
time and date as the parties hereto may designate by mutual consent.
2.4 Closing Deliveries. (a) At the Closing, AMX shall deliver (or shall
cause to be delivered) to the BCI Group:
(i) the Cash Payment, by wire transfer of immediately available
funds to the bank account designated in writing by BCI Investments at
least five business days prior to the Closing Date;
(ii) the 2003 Note, duly executed by Sercotel;
(iii)the 2003 Note Guarantee, duly executed by AMX and Telcel;
(iv) the written opinion of Franck, Galicia y ▇▇▇▇▇▇, S.C., addressed
to BCI and dated as of the Closing Date, substantially in the form of
Exhibit I annexed hereto; and
(v) a certificate signed by an authorized officer of AMX as to AMX's
compliance with the conditions set forth in paragraphs (a) and (b) of
Section 7.2.
(b) At the Closing, the BCI Group shall deliver (or shall cause to be
delivered) to AMX:
(i) certificates for the Purchased Shares in the name of AMX or its
designee(s) or certificates for the Purchased Shares in the name of BCI
Investments accompanied by valid instruments of transfer duly executed by BCI
Investments to vest in AMX or its designee(s) good title to the Purchased
Shares;
(ii) a resignation letter, in form reasonably satisfactory to AMX,
from each member of the board of directors and statutory auditors of TAL
designated by BCI Investments, effective as of the Closing and stating that he
or she has no claims against TAL, any of the TAL Companies or any of the TAL
shareholders;
(iii)the BCE Agreement, duly executed by BCE;
(iv) the written opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, addressed to AMX and dated
as of the Closing Date, substantially in the form of Exhibit J annexed hereto;
(v) the written opinion of ▇▇▇▇▇-▇▇▇▇▇▇, Raworth & ▇▇▇▇▇▇▇▇,
addressed to AMX and dated as of the Closing Date, substantially in the form of
Exhibit K annexed hereto;
7
(vi) the written opinion of ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇ addressed to AMX and
dated as of the Closing Date, substantially in the form of Exhibit L annexed
hereto; and
(vii)certificates, each signed by an authorized officer of BCI and BCI
Investments, as to the BCI Group's compliance with the conditions set forth in
paragraphs (a) and (b) of Section 7.1.
ARTICLES III
REPRESENTATIONS AND WARRANTIES OF THE BCI GROUP
BCI and BCI Investments jointly and severally represent and warrant to
AMX that:
3.1 Organization and Good Standing. Each of BCI and BCI Investments is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation or organization.
3.2 Authorization of Agreement. Each of BCI and BCI Investments
has all necessary corporate power and authority to enter into this Agreement and
the other Transaction Documents to which it is a party, to carry out its
obligations hereunder and thereunder and to consummate the transactions
contemplated hereby and thereby. The execution and delivery by each of BCI and
BCI Investments of this Agreement and the other Transaction Documents to which
it is a party, the performance by it of its respective obligations hereunder and
thereunder and the consummation by it of the transactions contemplated hereby
and thereby have been duly authorized by all requisite action. This Agreement
has been and each of the other Transaction Documents to which each of BCI and
BCI Investments is a party has been, or upon its execution will be, duly
executed and delivered by it, and (assuming, if applicable, due authorization,
execution and delivery by each of the other parties hereto and thereto) this
Agreement constitutes and, upon its execution, each of the other Transaction
Documents constitutes or shall constitute, a legal, valid and binding obligation
of such party, enforceable against it in accordance with its terms.
3.3 No Conflicts. Except as set forth in Schedule 3.3 (solely with
respect to the date hereof and not the Closing Date, on which Schedule 3.3 will
not serve as an exception to this representation), and assuming all consents,
approvals, authorizations and other actions described in Section 3.4 have been
obtained and all filings and notifications listed in Schedule 3.4 have been
made, the execution, delivery and performance by each of BCI and BCI Investments
of this Agreement and the other Transaction Documents to which it is a party do
not and will not (a) violate, conflict with or result in the breach of any
provision of its certificate of incorporation and by-laws or similar
organizational documents, (b) conflict with or violate any Law or Governmental
Order applicable to it or any of its assets, properties or businesses, (c)
conflict with, result in any breach of, constitute a default (or event which,
with the giving of notice or lapse of time, or both, would become a default)
under, require any consent under, or give to any other Person any rights of
termination, amendment, acceleration, suspension, revocation or cancellation
pursuant to, any note, bond, mortgage or indenture, contract, agreement, lease,
sublease, license, permit, franchise or other instrument or arrangement to which
it is a party or by which any of its assets or properties is bound or affected
or (d) give rise to a right in favor of any party to obtain a permanent
injunction against the consummation of the transactions contemplated by this
Agreement or to recover damages from AMX or any Affiliate of AMX as a result of
the execution of this Agreement or the consummation of the transactions
contemplated by this Agreement by BCI or BCI Investments if such right arises
from any obligation of BCI or BCI Investments under (i) the certificate of
incorporation and by-laws or similar organizational documents of BCI or BCI
Investments, (ii) any Law or Governmental Order applicable to BCI or BCI
Investments or any of its assets, properties or businesses, or (iii) any note,
bond, mortgage or indenture, contract, agreement, lease, sublease, license,
permit, franchise or other instrument or arrangement to which BCI or BCI
Investments is a party or by which any of its assets or properties is bound or
affected.
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3.4 Governmental Consents and Approvals. Except as set forth in
Schedule 3.4, the execution, delivery and performance by each of BCI and BCI
Investments of this Agreement and each of the other Transaction Documents to
which it is a party do not and will not require any consent, approval,
authorization or other order of, action by, filing with or notification to any
Governmental Authority.
3.5 Ownership and Transfer of the Purchased Shares. 1. BCI
Investments owns beneficially and of record all of the Purchased Shares, and the
Purchased Shares to be transferred by BCI Investments at the Closing constitute
all of the Equity Interests in TAL owned directly or indirectly by BCE, BCI, BCI
Investments and their Affiliates. Except as set forth in Schedule 3.5(a), the
Purchased Shares are free and clear of all Liens. At the Closing, BCI
Investments will deliver all of the Purchased Shares to AMX (or its designee(s))
free and clear of all Liens.
(a) Except as set forth in Schedule 3.5(b) (solely with respect to
the date hereof and not the Closing Date, on which Schedule 3.5(b) will not
serve as an exception to this representation), there are no outstanding or
authorized options, warrants, calls, convertible securities, preemptive rights
(statutory or contractual), subscription rights, commitments or other rights,
agreements, arrangements or commitments of any character currently in effect,
including, without limitation, rights of first refusal, rights of first offer,
or other comparable rights relating to the Purchased Shares, and there are no
securities outstanding which, upon conversion or exchange, would require the
sale or transfer of any of the Purchased Shares.
(b) Except as set forth in Schedule 3.5(c), there are no voting
trusts, stockholder agreements, proxies or other agreements or understandings
currently in effect with respect to the voting, ownership or transfer of any of
the Purchased Shares.
3.6 Litigation. (a) Except as set forth in Schedule 3.6 (a), as of
the date hereof there is no suit, action, proceeding, investigation, claim or
order pending or, to the best knowledge of either BCI or BCI Investments after
due inquiry, threatened against either BCI or BCI Investments, or to which
either BCI or BCI Investments is otherwise a party, (i) which seeks to delay or
prevent the consummation of the transactions contemplated by this Agreement and
the other Transaction Documents, (ii) which would be reasonably likely to
materially adversely affect either BCI's or BCI Investments' ability to
consummate the transactions contemplated by, this Agreement and the other
Transaction Documents or (iii) which seeks an order of relief or a decree in
bankruptcy or under any law affecting creditors' rights similar to bankruptcy.
9
(b) As of the date hereof, each of BCI and BCI Investments (i) has
paid, and is able to pay, its debts generally as they become due, (ii) has not
commenced a voluntary case in bankruptcy or any other action or proceeding for
any other relief under any law affecting creditors' rights that is similar to
bankruptcy law; and (iii) has not formally approved or consented by answer or
otherwise to the commencement against it of an involuntary case in bankruptcy
or any other such action or proceeding.
3.7 No Broker. All negotiations relating to this Agreement and
the transactions contemplated hereby have been carried on without the
intervention of any person acting on behalf of the BCI Group in such manner as
to give rise to any valid claim against AMX, TAL or any of their Affiliates for
any broker's or finder's fee or similar compensation in connection with the
transactions contemplated in this Agreement or the other Transaction Documents.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF AMX
AMX represents and warrants to the BCI Group that:
4.1 Organization and Good Standing. Each of AMX and Sercotel is a
corporation duly organized, validly existing and in good standing under the
laws of Mexico.
4.2 Authorization of Agreement. (a) AMX has all necessary corporate
power and authority to enter into this Agreement and the other Transaction
Documents to which it is a party, to carry out its obligations hereunder and
thereunder and to consummate the transactions contemplated hereby and thereby.
The execution and delivery of this Agreement and the other Transaction Documents
to which AMX is a party, the performance by it of its obligations hereunder and
thereunder and the consummation by it of the transactions contemplated hereby
and thereby have been duly authorized by all requisite action. This Agreement
and each of the other Transaction Documents to which AMX is a party has been, or
upon its execution will be, duly executed and delivered by it, and (assuming, if
applicable, due authorization, execution and delivery by each of the other
parties hereto and thereto) this Agreement constitutes and, upon its execution,
each of the other Transaction Documents constitutes or shall constitute, a
legal, valid and binding obligation of AMX, enforceable against it in accordance
with its terms.
(b) Sercotel has all necessary corporate power and authority to
execute and deliver the 2003 Note, to carry out its obligations thereunder and
to consummate the transactions contemplated thereby. The execution and delivery
of the 2003 Note by Sercotel, the performance by it of its obligations
thereunder and the consummation by it of the transactions contemplated thereby
will be duly authorized by all requisite action on or prior to Closing. The 2003
Note, upon execution and delivery, will be, duly executed and delivered by
Sercotel and shall constitute, a legal, valid and binding obligation of
Sercotel, enforceable against it in accordance with its terms.
4.3 No Conflicts. (a) Assuming all consents, approvals,
authorizations and other actions described in Section 4.4 have been obtained,
the execution, delivery and performance by AMX of this Agreement and the other
Transaction Documents to which it is a party do not and will not (a) violate,
conflict with or result in the breach of any provision of its certificate of
incorporation and by-laws or similar organizational documents, (b) conflict with
or violate any Law or Governmental Order applicable to it or any of its assets,
properties or businesses, or (c) conflict with, result in any breach of,
constitute a default (or event which, with the giving of notice or lapse of
time, or both, would become a default) under, require any consent under, or give
to any other Person any rights of termination, amendment, acceleration,
suspension, revocation or cancellation pursuant to, any note, bond, mortgage or
indenture, contract, agreement, lease, sublease, license, permit, franchise or
other instrument or arrangement to which it is a party or by which any of its
assets or properties is bound or affected.
10
(b) The execution, delivery and performance by Sercotel of the
2003 Note will not (a) violate, conflict with or result in the breach of any
provision of its certificate of incorporation and by-laws or similar
organizational documents, (b) conflict with or violate any Law or Governmental
Order applicable to it or any of its assets, properties or businesses, or (c)
conflict with, result in any breach of, constitute a default (or event which,
with the giving of notice or lapse of time, or both, would become a default)
under, require any consent under, or give to any other Person any rights of
termination, amendment, acceleration, suspension, revocation or cancellation
pursuant to, any note, bond, mortgage or indenture, contract, agreement, lease,
sublease, license, permit, franchise or other instrument or arrangement to which
it is a party or by which any of its assets or properties is bound or affected.
4.4 Governmental Consents and Approvals. (a) Except as set forth in
Schedule 4.4, the execution, delivery and performance by AMX of this Agreement
and each of the other Transaction Documents to which it is a party do not and
will not require any consent, approval, authorization or other order of, action
by, filing with or notification to any Governmental Authority.
(b) The execution, delivery and performance by Sercotel of the
2003 Note will not require any consent, approval, authorization or other order
of, action by, filing with or notification to any Governmental Authority.
4.5 Litigation. There is no suit, action, proceeding,
investigation, claim or order pending or, to the best knowledge of AMX after due
inquiry, threatened against AMX or Sercotel, or to which either AMX or Sercotel
is otherwise a party, which seeks to delay or prevent the consummation of, or
which would be reasonably likely to materially adversely affect AMX's or
Sercotel's ability to consummate the transactions contemplated by, this
Agreement and the other Transaction Documents.
4.6 No Broker. All negotiations relating to this Agreement and the
transactions contemplated hereby have been carried on without the intervention
of any person acting on behalf of AMX in such manner as to give rise to any
valid claim against the BCI Group for any broker's or finder's fee or similar
compensation in connection with the transactions contemplated in this Agreement
or the other Transaction Documents.
4.7 Tess Notes. The sole holders of the Tess Notes are Inmobiliaria
Carso, S.A. de C.V. and America Telecom, S.A. de C.V.
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ARTICLE V
COVENANTS OF THE BCI GROUP
5.1 BCI BVI V. BCI Investments agrees to, and BCI agrees to cause BCI
Investments to (i) cause the adoption of amendments, to be effective as soon as
practicable after the date hereof and in no event later than 15 Business Days
after the date hereof, of the memorandum and articles of association of BCI BVI
V, substantially in the form of the amendments attached hereto as Exhibit M and
(ii) transfer all of the preference shares of BCI (BVI) V Limited ("BCI BVI V")
currently held by BCI Investments to BCE (or a wholly owned subsidiary thereof
that is at the date of such transfer to such subsidiary able to pay its debts
generally as they become due, has not commenced a voluntary case in bankruptcy
or any other action or proceeding for any other relief under any law affecting
creditors' rights that is similar to bankruptcy law, and has not consented by
answer or otherwise to the commencement against it of an involuntary case in
bankruptcy or any other such action or proceeding) on or prior to Closing (or,
if later, by the date that is 5 Business Days after the date on which the
amendments referred to in paragraph (i) above are effective and on or after the
Closing Order has been entered).
5.2 Non-Compete . (a) BCI and BCI Investments agree that, during the
5-year period commencing on the Closing Date, neither BCI, BCI Investments nor
any Subsidiary thereof will engage, directly or indirectly, in the business of
providing wireless or broadband telecommunications services in Brazil (the
"Business") or disclose or furnish to any other person the manner of conducting
the Business, including, without limitation, the names of employees, suppliers,
customers or prospective customers of the Business; provided that the continued
direct or indirect ownership by BCI of its interest in Canbras Communications
Corp. shall not constitute a violation of this provision.
(b) BCI and BCI Investments agree and acknowledge that remedies
at law for any breach of the provisions of this Section 5.2 are inadequate and
that in addition thereto AMX shall be entitled to seek equitable relief,
including injunction and specific performance, in the event of any such breach.
5.3 No-Shop. During the period from the date of this Agreement to the
Closing, the BCI Group, its officers, directors, agents, representatives,
advisers and employees, shall not, directly or indirectly, (a) solicit, initiate
or encourage any inquiries, discussions or proposals from any other person
relating to a possible acquisition of any portion of the Purchased Shares,
(b) continue, solicit, encourage or enter into negotiations or discussions
relating to any such possible acquisition, or (c) enter into or consummate any
agreement or understanding providing for any such acquisition. The BCI Group
shall promptly notify AMX of, and communicate to AMX the terms of, any such
inquiry, proposal or request for information received by, or any negotiations
or discussions sought with, any of the BCI Group.
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ARTICLE VI
ADDITIONAL AGREEMENTS
6.1 Public Announcements. The parties agree that no press release or other
public disclosure or announcement (whether written or oral) concerning the
transactions contemplated hereby shall be issued by any party without the prior
written consent of the other party (which consent shall not be unreasonably
withheld or delayed), except as required by applicable securities laws or stock
exchange rules. In the event a party is by applicable securities laws or stock
exchange rules required to make such release, announcement or disclosure,
such party shall give prior written notice to, and shall consult with, the
other parties in order to coordinate any such disclosure or public announcement.
6.2 Regulatory and Other Authorizations; Notices and Consents. Each of
the parties hereto shall exercise its reasonable best efforts and shall
cooperate with each other party to promptly provide the notifications to ANATEL
and ▇▇▇▇ required under applicable Law with respect to the transactions
contemplated by this Agreement and the other Transaction Documents and to
promptly obtain all material consents of third parties, authorizations of
Governmental Authorities (including, without limitation, the Bermuda Monetary
Authority), Orders and other approvals that are or become necessary for the
consummation of the transactions contemplated by this Agreement, the other
Transaction Documents and any other document entered into pursuant to the terms
hereof or thereof, and shall exercise reasonable commercial efforts to
provide regular updates on the status of such authorizations, consents, Orders
and approvals to the other parties. None of the parties shall take any action
that would have the effect of delaying, impairing or impeding the receipt of
any of such authorizations, consents, Orders and approvals. Each party shall
have responsibility for its respective fees and expenses arising in connection
with such authorizations, consents, Orders and approvals.
6.3 Notice of Developments. From the date hereof and up to and including
the Closing, each party shall promptly notify each other party in writing of
(i) the occurrence or non-occurrence of any event, circumstance or fact which
could reasonably be expected to result in any material breach of a
representation or warranty of such party in this Agreement, (ii) any failure of
such party or any of its subsidiaries to comply with or satisfy any material
covenant, condition or agreement to be complied with or satisfied by it
hereunder, (iii) any notice or other communication from any third Person
alleging that the consent of such Person is or may be required in connection
with the transactions contemplated by this Agreement, the other Transaction
Documents and any other document entered into pursuant to the terms hereof or
thereof, or (iv) any other material adverse development with respect to the
conditions to Closing listed in Article VII; provided, however, that the
delivery of any notice pursuant to this Section 6.3 shall not cure any breach or
non-compliance or limit or otherwise affect the remedies available hereunder to
the party receiving such notice.
6.4 Further Action. (a) Each of the parties shall use its reasonable
best efforts to take, or cause to be taken, all appropriate action, do or cause
to be done all things necessary, proper or advisable under applicable Law, and
execute and deliver such documents and other papers, as may be required to carry
out the provisions of this Agreement and consummate the transactions
contemplated by this Agreement, the other Transaction Documents and any other
document entered into pursuant to the terms hereof or thereof.
13
(b) Without limiting the generality of the foregoing, the BCI Group shall
exercise their reasonable best efforts to obtain (unless already obtained on or
prior to the date hereof) as soon as possible after the date hereof (i) the BCI
Lenders Consent, (ii) the BCI Noteholders Approval, (iii) the BCI Shareholders
Approval, (iv) the Closing Order and (v) the Reimbursement and Guarantee Fee
Agreement Termination Letter, and AMX shall exercise its reasonable best efforts
to obtain (unless already obtained on or prior to the date hereof) as soon as
possible after the date hereof (v) the Tess Notes Releases, (w) the Supplemental
Agreement Release, (x) the Technical Assistance and Secondment Agreements
Termination Letters, (y) the October Payment Release and (z) the Reimbursement
and Guarantee Fee Agreement Release.
ARTICLES VII
CONDITIONS PRECEDENT TO CLOSING
7.1 Conditions Precedent to Obligations of AMX. The obligations of AMX
to consummate at the Closing the transactions contemplated by this Agreement and
the other Transaction Documents are subject to the satisfaction at or prior to
the Closing of each of the following conditions (unless satisfaction of any
such condition is expressly waived in a writing delivered BCI or BCI Investments
in accordance with the provisions of Section 10.2):
(a) Each of the representations and warranties of the BCI Group contained
in this Agreement shall be true and correct as of the Closing with the same
force and effect as if made on the Closing (other than such representations and
warranties as are made as of a specified date other than the Closing Date,
which shall be true and correct as of such specified date), except for those
inaccuracies that do not result in the inability of BCI or BCI Investments to
consummate the transactions in this Agreement.
(b) Each of the covenants and agreements contained in this Agreement to be
complied with by the BCI Group on or before the Closing shall have been complied
with in all material respects.
(c) Thereshall not have been instituted or commenced any Action (except
for any Action that has been dismissed or settled) by a Governmental Authority,
and there shall not be in effect any permanent or preliminary injunction or
similar order, in each case seeking or purporting to prevent, (i) the
consummation of the transactions contemplated by this Agreement or any other
Transaction Document or (ii) the ownership by AMX or any of its Subsidiaries of
any of the Purchased Shares.
(d) No Law or Governmental Order shall be in effect having any of the
effects described in paragraph (c) above.
(e) The Closing Order shall have been entered.
(f) The BCI Lenders Consent shall have been obtained.
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(g) The Side Letter Agreement shall have been terminated.
(h) AMX shall have received a written opinion from ▇▇▇▇▇ ▇▇▇▇▇ &
▇▇▇▇▇▇, substantially in the form of Exhibit L annexed hereto.
(i) The BCE Agreement shall have been duly executed by BCE and delivered
to AMX.
(j) The Reimbursement and Guaranty Fee Agreement Termination Letter,
shall have been duly executed by BCI and delivered to AMX and TAL.
(k) The Funding and Amendment Agreement, shall have been duly executed
by all parties thereto other than AMX, AM Latin America and SBCI Brazil and
delivered to AMX and AM Latin America.
(l) AMX shall have received the certificates and other documents and
agreements listed in Section 2.4(b).
7.2 Conditions Precedent to Obligations of the BCI Group. The obligations
of the BCI Group to consummate at the Closing the transactions contemplated by
this Agreement and the other Transaction Documents are subject to the
satisfaction at or prior to the Closing of each of the following conditions
(unless satisfaction of any such condition is expressly waived in a writing
delivered to AMX in accordance with the provisions of Section 10.2):
(a) Each of the representations and warranties of AMX contained in
this Agreement shall be true and correct in all material respects as of the
Closing with the same force and effect as if made on the Closing.
(b) Each of the covenants and agreements contained in this Agreement
to be complied with by AMX on or before the Closing shall have been complied
with in all material respects.
(c) Thereshall not have been instituted or commenced by any Governmental
Authority any Action (except for any Action that has been dismissed or settled),
and there shall not be in effect any permanent or preliminary injunction or
similar order, in each case seeking or purporting to prevent (y) the
consummation of the transactions contemplated by this Agreement or any other
Transaction Document or (z) the ownership by AMX or any of its Subsidiaries of
any of the Purchased Shares.
(d) No Law or Governmental Order shall be in effect having any of the
effects described in paragraph (c) above.
(e) The Closing Order shall have been entered by the competent court.
(f) The Supplemental Agreement Release shall have been duly executed
by all parties thereto other than BCI and BCI Investments and delivered to the
BCI Group.
(g) The SBCI Consent shall have been obtained.
15
(h) The Tess Notes Releases shall been duly executed by Inmobiliaria
Carso, S.A. de C.V. and America Telecom, S.A. de C.V., respectively, and TAIL
and delivered to BCI.
(i) The Technical Assistance and Secondment Agreements Termination
Letters shall have been duly executed by all the parties thereto other than BCI
and delivered to BCI.
(j) The October Payment Release shall have been duly executed by all
the parties thereto other than BCI.
(k) The BCE Agreement shall have been duly executed by AMX and delivered
to BCE.
(l) BCI shall have received the certificates and other documents and
agreements listed in Section 2.4(a).
ARTICLE VIII
INDEMNIFICATION
8.1 Survival of Representations and Warranties. Subject to the limitations
and other provisions of this Agreement, the representations and warranties and
the covenants and other agreements of the parties hereto contained in this
Agreement shall survive the Closing and shall remain in full force and effect.
8.2 Indemnification. Each of the parties hereto agrees to indemnify and
hold harmless (in such capacity, an "Indemnifying Party") each of the other
parties hereto and its Affiliates and their respective officers, directors,
employees, agents, successors and assigns (in such capacity, each an
"Indemnified Party") against and from all Losses incurred by such Indemnified
Parties arising out of (i) the breach of any representation or warranty of each
such Indemnifying Party contained herein, and (ii) the breach of any covenant or
agreement of each such Indemnifying Party contained herein.
8.3 Indemnification Procedures. An Indemnified Party shall give the
Indemnifying Party prompt written notice of any claim, assertion, event or
proceeding by or in respect of a third Person of which such Indemnified Party
has knowledge concerning any Loss as to which such Indemnified Party may
request indemnification hereunder, provided, however, that the failure to
provide such notice shall not release the Indemnifying Party from any of its
obligations under this Article VIII, except to the extent the Indemnifying
Party is materially prejudiced by such failure. The Indemnifying Party shall
have the right to direct, at its sole option and expense, through counsel of its
own choosing, which counsel shall be reasonably satisfactory to the Indemnified
Party, the defense or settlement of any claim or proceeding the subject of
indemnification hereunder, except where the Indemnifying Party has failed to
timely undertake any defense, in which case the Indemnifying Party shall have no
right to participate in any settlement or assume the defense of such claim or
proceeding. If the Indemnifying Party elects to assume the defense of any such
claim or proceeding or negotiate, settle or otherwise deal with such claim or
proceeding, the Indemnified Party may participate in such defense, but in such
case the expenses of the Indemnified Party shall be paid by the Indemnified
Party; provided, however, that such Indemnified Party shall be entitled to
participate in any such defense with separate counsel at the expense of the
Indemnifying Party if (i) so requested by the Indemnifying Party to participate
or (ii) in the reasonable opinion of counsel to the Indemnified Party, a
conflict or potential conflict exists between the Indemnified Party and the
Indemnifying Party that would make such separate representation advisable. The
Indemnified Party shall provide the Indemnifying Party with access to its
records and personnel relating to any such claim, assertion, event or proceeding
during normal business hours or as otherwise may reasonably be required and
shall otherwise cooperate with the Indemnifying Party in the defense or
settlement thereof, and the Indemnifying Party shall reimburse the Indemnified
Party for all its reasonable out-of-pocket expenses in connection therewith. If
the Indemnifying Party elects to direct the defense of any such claim or
proceeding, the Indemnified Party shall not pay, or permit to be paid, any part
of any claim or demand arising from such asserted liability unless the
Indemnifying Party consents in writing to such payment or unless the
Indemnifying Party withdraws from the defense of such asserted liability or
unless a final judgment from which no appeal may be taken by or on behalf of the
Indemnifying Party is entered against the Indemnified Party for such liability.
No settlement in respect of any third Person claim may be effected by the
Indemnifying Party without the Indemnified Party's prior written consent unless
the settlement involves a full and unconditional release of the Indemnified
Party. If the Indemnifying Party shall fail to undertake any such defense, the
Indemnified Party shall have the right to undertake the defense or settlement
thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes
the defense of any such claim or proceeding pursuant to this Section 8.3 and
proposes to settle such claim or proceeding prior to a final judgment thereon
or to forgo any appeal with respect thereto, then the Indemnified Party shall
give the Indemnifying Party prompt written notice thereof and the Indemnifying
Party shall have the right to participate in the settlement or assume or
reassume the defense of such claim or proceeding, except where the Indemnifying
Party has failed to undertake any defense, in which case the Indemnifying Party
shall have no right to participate in any settlement or assume the defense of
such claim or proceeding.
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ARTICLE IX
TERMINATION AND WAIVER
9.1 Grounds for Termination. This Agreement may be terminated at any time
prior to the Closing Date:
(a) By the written agreement of each of AMX and each of the BCI Group; or
(b) By either AMX or the BCI Group if the Closing shall not have occurred
on or prior to August 9, 2002, provided however, that the right to terminate
this Agreement under this Section 9.1(b) shall not be available to any party
whose failure (or whose Affiliate's failure), directly or indirectly, to fulfill
any obligation or covenant under this Agreement shall have been the cause of, or
shall have resulted in, the failure of the Closing to occur on or prior to
August 9, 2002.
9.2 Effect of Termination. If this Agreement is terminated as permitted
under Section 9.1, such termination shall be without liability to any party to
this Agreement except (i) that the provisions of Sections 5.1, 6.1, 9.2, 10.1,
10.9, 10.10, 10.11, 10.12 and 10.14 shall survive the termination of this
Agreement and (ii) that nothing herein shall relieve any party from liability
for any willful breach of this Agreement.
17
9.3 Waiver. With respect to any party, the other parties may (a) extend
the time for the performance of any of the obligations or other acts of such
party, (b) waive any inaccuracies in the representations and warranties of such
parties contained herein or in any document delivered by such party pursuant
hereto or (c) waive compliance with any of the agreements or covenants of such
party contained herein. Unless and to the extent that a particular party is
expressly authorized to waive such inaccuracies or compliance under this
Agreement, any such extension or waiver shall be valid only if set forth in an
instrument in writing signed by the parties to be bound thereby. Any waiver of
any term or condition shall not be construed as a waiver by any party not a
signatory to such written instrument evidencing such waiver, a waiver of any
subsequent breach or a subsequent waiver of the same term or condition, or a
waiver of any other term or condition of this Agreement. The failure of any
party to assert any of its rights hereunder shall not constitute a waiver of
any of such rights.
ARTICLE X
MISCELLANEOUS
10.1 Expenses. Except as otherwise specified in this Agreement, all costs
and expenses, including, without limitation, fees and disbursements of counsel,
financial advisors and accountants, incurred in connection with this Agreement
and the other Transaction Documents and the consummation of the transactions
contemplated hereby and thereby shall be paid by the party incurring such costs
and expenses, regardless of whether or not the Closing shall have occurred.
10.2 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given or made (and
shall be deemed to have been duly given or made upon receipt) by delivery in
person, by courier service, by facsimile, or by registered or certified mail
(postage prepaid, return receipt requested) to the respective parties at the
following addresses (or at such other address for a party as shall be specified
in a notice given in accordance with this Section 10.2):
(a) if to the BCI Group:
▇▇▇▇ Canada International Inc.
▇▇▇▇, ▇▇▇ ▇▇ ▇▇ Gauchetiere Ouest
Bureau 1100
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Executive Officer
18
with a copy to:
▇▇▇▇ Canada International Inc.
▇▇▇▇, ▇▇▇ ▇▇ ▇▇ Gauchetiere Ouest
Bureau 1100
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Vice President, Law and Corporate Secretary
with a further copy to:
Shearman & Sterling
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
(b) if to AMX:
America Movil, S.A. de C.V.
▇▇▇▇ ▇▇▇▇▇▇▇ 366
Torre Telcel ▇, ▇▇▇▇ ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, D.F.
Mexico
Facsimile: (▇▇ ▇▇) ▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
10.3 Headings. The descriptive headings contained in this Agreement are
for convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
10.4 Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any Law or public policy, all
other terms and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
party. Upon such determination by a Governmental Authority that any term or
other provision is invalid, illegal or incapable of being enforced, the parties
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner in
order that the transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible.
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10.5 Entire Agreement. This Agreement and the other Transaction Documents
and any other document entered into pursuant to the terms hereof or thereof
constitute the entire agreement of the parties hereto with respect to the
subject matter hereof and thereof.
10.6 Assignment. This Agreement may not be assigned by operation of Law
or otherwise without the express written consent of each of the parties (which
consent may be granted or withheld in the sole discretion of each party).
10.7 No Third Person Beneficiaries. Except for the provisions of Article
VIII relating to Indemnified Parties, this Agreement shall be binding upon and
inure solely to the benefit of the parties and their permitted assigns and
nothing herein, express or implied, is intended to or shall confer upon any
other Person any legal or equitable right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
10.8 Amendment. This Agreement may not be amended or otherwise modified
except by an instrument in writing signed by, or on behalf of, each of the
parties.
10.9 Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York.
10.10 Arbitration. (a) The parties agree that any controversy, claim or
dispute arising out of or relating to or in connection with this Agreement
including, without limitation, any dispute regarding its breach, termination,
enforceability or validity (each, a "Dispute") shall be finally settled by
binding arbitration in The City of New York, New York County, before a panel of
three arbitrators. The arbitration shall be administered by the International
Court of Arbitration of the International Chamber of Commerce (the "ICC") under
its Rules of Arbitration as in effect at the time of this Agreement, except as
they may be modified herein by agreement of the parties, and shall be conducted
in the English language. The BCI Group shall be deemed as a single party to the
arbitration. Each party shall nominate one arbitrator, obtain its nominee's
acceptance of such nomination, and deliver written notification of such
nomination and acceptance to the other party within thirty (30) days after
delivery of the request for arbitration. In the event a party fails to nominate
an arbitrator or deliver notification of such nomination to the other party
within this time period, upon request of any party, such arbitrator shall
instead be appointed by the ICC within thirty (30) days of receiving such
request. The two arbitrators nominated in accordance with the above provisions
shall nominate the third arbitrator, obtain the nominee's acceptance of such
nomination and notify the parties in writing of such nomination and acceptance
within thirty (30) days of their nomination. If the first two nominated
arbitrators fail to nominate a third arbitrator or notify the parties of that
nomination within this time period, then, upon request of either party, the
third arbitrator shall be appointed by the ICC within thirty (30) days of
receiving such request. Nonetheless, in no event shall any such arbitrator
nominated by the other arbitrators be a resident in, or a domicile of,
any country in which AMX or BCI is domiciled or has its principal place of
business. In the event a party fails to nominate an arbitrator or deliver
notification of such nomination to the other parties within this time period,
upon request of any party, such arbitrator shall instead be appointed by the ICC
within thirty (30) days of receiving such request. The three arbitrators
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appointed in accordance with the above provisions shall mutually agree to
designate one of them to act as chair within thirty days of their appointment.
For the sake of clarity, it is expressly understood that the function of such
chair is administrative only and shall not signify that such chair has greater
or different powers as arbitrator from the other arbitrators. In the event that
the arbitrators nominated in accordance with the above provisions fail to agree
upon the selection of a chair within this time period, upon request of any
party, the chair shall instead be designated by the ICC within thirty days of
receiving such request. The award of the arbitrators shall be final and binding
upon the parties, and shall not be subject to any appeal or review. The parties
agree to submit to the nonexclusive personal jurisdiction of the federal and
state courts sitting in The City of New York, New York for the purpose of
enforcing this agreement to arbitrate.
(b) No provision of, nor the exercise of any rights under, this Section
10.10 shall limit the right of any party to request and obtain from a court of
competent jurisdiction in the City of New York (which shall have exclusive
jurisdiction for purposes of this Section 10.10(b)) before, during or after
the pendency of any arbitration, provisional or ancillary remedies and relief
including, but not limited to, injunctive or mandatory relief or the appointment
of a receiver. The institution and maintenance of an action or judicial
proceeding for, or pursuit of, provisional or ancillary remedies shall not
constitute a waiver of the right of any party, even if it is the plaintiff, to
submit the dispute to arbitration if such party would otherwise have such right.
Each of the parties hereby submits unconditionally to the exclusive jurisdiction
of the state and federal courts located in The City of New York, County of New
York for purposes of this provision, waives objection to the venue of any
proceeding in any such court or that any such court provides an inconvenient
forum and consents to the service of process upon it in connection with any
proceeding instituted under this Section 10.10(b) in the same manner as provided
for the giving of notice hereunder.
(c) Judgment upon the award rendered may be entered in any court having
jurisdiction. The parties hereby expressly consent to the nonexclusive
jurisdiction of the state and federal courts situated in The City of New York,
County of New York for this purpose and waive objection to the venue of any
proceeding in such court or that such court provides an inconvenient forum.
(d) Each of the parties participating in an arbitration pursuant to the
terms of this Agreement shall, subject to the award of the arbitrators, pay an
equal share of the arbitrators' fees. The arbitrators shall have the power to
award recovery of all costs (including reasonable attorneys' fees,
administrative fees, arbitrators' fees and court costs) to the prevailing party.
(e) Each of BCI, BCI Investments and AMX hereby irrevocably designates CT
Corporation, with offices situated at present at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇ as its authorized agent, respectively, to accept and acknowledge on its
behalf service under this Agreement or any of the other Transaction Documents of
any process which may be served in any proceeding in the State of New York.
10.11 Counterparts. This Agreement may be executed and delivered in one
or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original and
all of which taken together shall constitute one and the same agreement.
21
10.12 Waiver of Jury Trial. Each of the parties hereto irrevocably and
unconditionally waives trial by jury in any legal action or proceeding relating
to this Agreement, the other Transaction Documents or the transactions
contemplated hereby and thereby and for any counterclaim therein.
10.13 Set-off. All payments hereunder shall be made irrespective of and
free and clear of any right of counterclaim or set-off.
10.14 Specific Performance. The parties agree that irreparable damage
would occur in the event any provision of this Agreement was not performed in
accordance with the terms hereof and that the parties shall be entitled to
specific performance of the terms hereof, in addition to any other remedy at
Law or in equity. Notwithstanding the foregoing, the transactions contemplated
by this Agreement are intended to be entered into concurrently and in
consideration of each other, and shall not be severable.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed as of the date first written above by its respective
officers or managers thereunto duly authorized.
▇▇▇▇ CANADA INTERNATIONAL INC.
By:
----------------------------------------------------
Name:
Title:
▇▇▇▇ CANADA INTERNATIONAL INVESTMENTS LIMITED
By:
----------------------------------------------------
Name:
Title:
AMERICA MOVIL, S.A. de C.V.
By:
----------------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney-in-fact
By:
----------------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Attorney-in-fact
