STOCK PURCHASE AGREEMENT dated as of May 5, 2006 among MIH (UBC) HOLDINGS BV ROBERTO CIVITA, GIANCARLO FRANCESCO CIVITA, VICTOR CIVITA and ROBERTA ANAMARIA CIVITA
Exhibit
4.6
EXECUTION
COPY
dated
as of
May
5, 2006
among
MIH
(UBC) HOLDINGS BV
▇▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇
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and
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
STOCK
PURCHASE AGREEMENT
(this
“Agreement”)
dated
May 5, 2006 between, on one side, MIH
(UBC) Holdings BV,
a
company organized under the laws of the Netherlands, with head offices at 13-15
Jupiterstraat, HC 2132 Hoofddorp, the Netherlands, herein represented in
accordance with its corporate documents (“MIH”
or
the
“Buyer”),
and,
in the other side, ▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
Brazilian citizen, married, publisher, bearer of the Identity Card RG No.
1.666.785, enrolled with the Individual Taxpayers’ Registry (CPF/MF) under No.
▇▇▇.▇▇▇.▇▇▇-▇▇, resident and domiciled in the City of São Paulo, State of São
Paulo, with offices at ▇▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇
▇▇▇▇▇,
▇▇.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
Brazilian citizen, married, bachelor in social communication, bearer of the
Identity Card RG No. 6.167.806-5, enrolled with the Individual Taxpayers’
Registry (CPF/MF) under No. ▇▇▇.▇▇▇.▇▇▇-▇▇, resident and domiciled in the City
of São Paulo, State of São Paulo, with offices at ▇▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇,
24th
floor,
▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇,
Brazilian citizen, married, producer, bearer of the Identity Card RG No.
6.166.935-0, enrolled with the Individual Taxpayers’ Registry (CPF/MF) under No.
▇▇▇.▇▇▇.▇▇▇-▇▇, resident and domiciled in the City of São Paulo, State of São
Paulo, with offices at ▇▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇, 24th
floor
and ▇▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
Brazilian citizen, married, psychologist, bearer of the Identity Card RG No.
6.167.088, enrolled with the Individual Taxpayers’ Registry (CPF/MF) under No.
▇▇▇.▇▇▇.▇▇▇-▇▇, resident and domiciled in the City of São Paulo, State of São
Paulo, with offices at ▇▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
(▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, and ▇▇▇.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall be jointly referred as “Sellers").
W
I T N E
S S E T H :
WHEREAS,
the Sellers are the legal holder and registered owner of shares of common stock
and shares of preferred stock of Abril
S.A.,
a
company (sociedade
por ações)
organized under the laws of the Federative Republic of Brazil, with head offices
in the City of São Paulo, State of São Paulo, at ▇▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇,
▇▇▇▇
▇▇▇▇▇,
▇▇▇▇▇▇ A, enrolled with the Legal Entities Taxpayers’ Registry (CNPJ/MF) under
No. 03.788.716/0001-93 (the “Company”);
WHEREAS,
MIH desires to acquire an equity stake of 30% of the Company’s total capital
stock, through a combination of subscription of newly issued shares of common
stock and shares of preferred stock and the purchase of shares of common stock
and shares of preferred stock from the Sellers and Capital International (as
defined below), as a result of which MIH will hold 30% and 30% of the total
issued and outstanding shares of common stock and preferred stock of the
Company, respectively;
WHEREAS,
on the date hereof, MIH and the Company are entering into a subscription
agreement for the subscription, by MIH, of shares of common stock and shares
of
preferred stock of the Company on the date hereof;
WHEREAS,
on the date hereof, MIH and Capital International are entering into a stock
purchase agreement for the purchase and sale 1,533,134 of shares of common
stock
and 1,533,133 shares of preferred stock of the Company on the date hereof,
held
by Capital International, representing 13.80% and 13.80% of the total issued
and
outstanding shares of common stock and preferred stock, respectively;
and
WHEREAS,
MIH hereby agrees to purchase from the Sellers and the Sellers agree to sell
and
transfer to MIH, on the date hereof, 1,316,246 shares of preferred stock of
the
Company, representing 11.80% of the total issued and outstanding shares of
preferred stock, respectively, on a fully diluted basis, for the aggregate
purchase price set forth below and upon other terms and conditions set forth
herein;
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements set forth herein, the parties hereto agree as follows:
ARTICLE
1
DEFINITIONS
“Affiliate”
means,
with respect to any Person, any other Person directly or indirectly Controlling,
Controlled by, or under common Control with such Person;
“Agreement”
means
this Stock Purchase Agreement and the Schedules and Exhibits attached
hereto;
“Brazilian
Corporation Law”
means
Law No. 6,404/76, as amended;
“Brazilian
GAAP”
means
generally accepted accounting principles in Brazil;
“Business
Day”
means
any day other than a Saturday, Sunday, or other day on which commercial banks
in
the City of São Paulo, State of São Paulo are authorized or required by law to
close;
2
“Buyer”
means
MIH (UBC) Holdings BV;
“Capital
International”
means
Brazil April LLC and Brazil May LLC;
“CI
Acquisition Shares”
means
1,533,134 shares of common stock and 1,533,133 shares of preferred stock of
the
Company, representing 13.80% and 13.80% of the total issued and outstanding
shares of common stock and preferred stock, respectively, owned by Capital
International;
“CIESP”
means
Centro das Indústrias do Estado de São Paulo - CIESP;
“CI
Stock Purchase Agreement”
means
the stock purchase agreement, dated the date hereof, between MIH and Capital
International, for the purchase, by MIH, of the CI Acquisition
Shares;
“Claim”
has
the
meaning set forth in Section 8.04 of this Agreement;
“Closing”
has
the
meaning set forth in Section 7.01 of this Agreement;
“Closing Date”
has
the
meaning set forth in Section 7.01 of this Agreement;
“Company”
means
Abril S.A.;
“Confidential Information”
has
the
meaning set forth in Section 5.03 of this Agreement;
“Control”
(including the terms “Controls”,
“Controlled
by”
and
“under
common Control with”)
means,
with respect to any Person or group of Persons (the “Controlling
Person(s)”),
(i) the
holding of shares representing more than 50% (fifty percent) of all the voting
shares of another Person or (ii) the ability to appoint the majority of the
members of the board of directors or other governing body of such other
Person;
“Governmental
Authority”
means
any government, governmental entity, regulatory authority, department,
commission, board, agency or instrumentality, any recognized stock exchange
and
any court, arbitrator, tribunal, whether foreign or domestic, with jurisdiction
over the Parties;
“Indemnified Parties”
has
the
meaning set forth in Section 8.01 of this Agreement;
“Lien”
means
any mortgage, lien, pledge, charge, security interest, encumbrance, objections,
rights of first refusal, options or other restriction of any kind, or any other
right in favour of or claims by, any third party of whatsoever
nature;
3
“Losses”
has
the
meaning set forth in Section 8.01 of this Agreement;
“MIH”
means
MIH (UBC) Holdings BV;
“Parties”
means
MIH and the Sellers; and “Party”
means
any of them;
“Person”
means
an individual, corporation, partnership, limited liability company, association,
trust or other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof;
“Purchase
Price”
has
the
meaning set forth in Section 2.02 of this Agreement;
“R$”
or
“Reais”
means
Brazilian Reais.
“Sellers”
means
the ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ and
▇▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇;
“Sellers’
Bank Accounts”
has
the
meaning set forth in Section 2.03 of this Agreement;
“Shares”
means
the 1,316,246 shares of preferred stock of the Company, representing 11.80%
of
the total issued and outstanding shares of preferred stock owned by the Sellers
and the subject of the purchase and sale contemplated in this
Agreement;
“Shareholders’
Agreement”
means
the Shareholders’ Agreement of the Company, entered on the date hereof, between
the Company, MIH, MIH Brazil Participações Ltda. and the Sellers;
“Subscription
Agreement”
means
the subscription agreement, dated the date hereof, between MIH, ▇▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and the Company, for the subscription,
by MIH, of the Subscription Shares;
“Subscription
Shares”
means
the shares of common stock and shares of preferred stock of the Company, to
be
issued by the Company and subscribed by MIH on the Closing Date;
“Subsidiaries”
means
any Person of which securities or other ownership interests are directly or
indirectly owned by another Person; and
4
“Transaction Documents”
means
this Agreement, the CI Stock Purchase Agreement, the Subscription Agreement,
the
Shareholders’ Agreement and the Registration Rights Agreement.
ARTICLE
2
PURCHASE
AND SALE
SECTION
2.02.
Purchase
Price.
(a) As
consideration for the Shares, the Buyer agrees to pay the aggregate amount
in
Reais equivalent to US$84,200,000.00 (the “Purchase
Price”),
distributed among each of the Sellers as indicated in Exhibit 2.02 attached
hereto.
SECTION
2.03.
Payment.
The
Purchase Price shall be paid by the Buyer to the Sellers, by international
wire
transfer, in immediately available funds, to the bank accounts in Brazil
indicated in Exhibit 2.03 hereto attached (the “Sellers’
Bank Accounts”),
as
follows: (a) Reais equivalent to US$70,200,000.00 on the date hereof, and (b)
the Reais equivalent to US$14,000,000.00, to be paid within 72 hours after
the
date on which the Sellers notify the Buyer, in writing accompanied by evidence
thereof, that the sale of Novo Continente to the Company has been
completed.
SECTION
2.04.
Waiver
of Preemptive Rights.
Each of
the Sellers expressly waives any preemptive right it may be entitled in relation
to the purchase and sale of the Shares and to the purchase and sale of the
CI
Acquisition Shares.
SECTION
2.05.
Taxes.
The
Parties agree that the Sellers shall be solely liable for the payment of their
any Sellers Imposto
▇▇ ▇▇▇▇▇ sobre Ganho de Capital (capital
gain income tax) payable in Brazil.
ARTICLE
3
REPRESENTATIONS
AND WARRANTIES OF THE SELLERS
Each
of
the Sellers jointly and severally represents and warrants to the Buyer that
each
of the following representations and warranties is, as of the date hereof,
true
and correct and in full force and effect, subject to the qualifications and
exceptions contained in the Schedules hereto attached. In this regard, any
fact,
act, item, contract, agreement, document or information listed, described,
contained or disclosed in any of the Schedules hereto attached shall be deemed
(a) listed, descried, contained and disclosed in all other Schedules hereto
attached even though not expressly set forth in such other Schedule and (b)
to
qualify and except such other representation and warranties contained in this
Article 3, whether or not a specific reference to the Schedule is made in such
other representation or warranty.
5
SECTION 3.01.
Authorization,
Binding Effect.
The
execution, delivery and performance by each of the Sellers of this Agreement
and
the consummation of the transactions contemplated hereby are within such
Sellers’ powers. The Sellers’ are competent to execute, deliver, perform and
consummate the transactions contemplated in this Agreement. This Agreement
constitutes a valid and binding agreement upon each of the Sellers and is
enforceable against each such Seller in accordance with its terms.
SECTION 3.02.
Governmental
Authorization.
The
execution, delivery and performance by each of the Sellers of this Agreement
and
the consummation of the transactions contemplated hereby require no action,
approval, consent or declaration by or in respect of, notice or filing with,
any
Governmental Authority, agency or official other than the filing with
Conselho
Administrativo de Defesa Econômica
- ▇▇▇▇
and the notice to the Agência
Nacional de Telecomunicações
-
ANATEL.
SECTION 3.03.
Noncontravention.
The
execution, delivery and performance by each of the Sellers of this Agreement
and
the consummation of the transactions contemplated hereby do not (i) assuming
any
filing required by the antitrust and telecommunications authorities properly
made, violate any material applicable law, rule, regulation, judgment,
injunction, order or decree, (ii) except as set forth in Section 3.02 above,
require any consent or other action by any Person, constitute a default, or
give
rise to any right of termination, cancellation, vesting or acceleration of
any
right or obligation of any of the Sellers, or (iiii) except for any Lien created
by the Transaction Documents, result in the creation or imposition of any Lien
on any asset of the Company.
SECTION 3.04.
Ownership
of the Shares.
With
respect to its own Shares only, each Seller is the sole record and beneficial
owner of the Shares as set forth opposite its name in Schedule 3.04 hereto
attached. The Shares have been duly authorized and validly issued and are fully
paid and non assessable, free and clear of any Lien and any other limitation
or
restriction (including any restriction on the right to vote, sell or otherwise
dispose of the Shares).
SECTION 3.05.
Litigation.
There
is no claim, action, suit, litigation or proceeding outstanding, pending or
threatened against any of the Sellers that seeks to prevent the Sellers from
entering into or implementing the transactions contemplated in this
Agreement.
6
SECTION
3.06.
Capital
International transaction documents.
Immediately prior to the transfer of the Shares to the Buyer hereunder, each
and
every contract, agreement, document, instrument, obligation, reimbursement
agreement, security agreement, pledge agreement, guaranty, commitment and
arrangement, in each case as amended, supplemented or otherwise modified,
entered into, on one hand, by the Company, any of its Subsidiaries and/or any
Seller, and on the other hand, Capital International, any fund managed by or
on
behalf of Capital International, Capital International, Inc. or any Subsidiaries
thereof will have been terminated and have no further force and effect, and
any
and all parties thereto will have been expressly released from any and all
obligations or liabilities that may have arisen in the past, or that could
arise
in the future, therefrom.
SECTION 3.07. No
Other Representations and Warranties.
Except
for the representations and warranties contained in this Article 3 and for
the
representation and warranties contained in Article 4 of the Subscription
Agreement, the Sellers do not make any representation or warranty, express
or
implied, to the Buyer, as to any matter.
ARTICLE
4
REPRESENTATIONS
AND WARRANTIES OF THE BUYER
The
Buyer
represents and warrants to the Sellers that each of the following
representations and warranties is, as of the date hereof, and will be, on the
Closing Date, true and correct and in full force and effect.
SECTION 4.02.
Authorization,
Binding Effect.
The
Buyer has been duly authorized by all necessary corporate action to execute,
deliver, perform and consummate the transactions contemplated in this Agreement.
This Agreement constitutes a valid and binding agreement upon the Buyer and
is
enforceable against the Buyer in accordance with its terms.
7
SECTION 4.06.
Due
Diligence.
In
entering into this Agreement and the other Transaction Documents, MIH
acknowledges that (a) it has conducted an independent due diligence
investigation, review and analysis of the business, assets, liabilities, results
of operations, financial condition and prospects of the Company and its
Subsidiaries, and (b) except for the specific representations and warranties
contained herein, MIH has relied solely upon the aforementioned investigation,
review and analysis and not on any factual representations and warranties of
the
Sellers (and of their respective representatives and advisors).
SECTION 4.07.
Financial
Capacity. MIH
has
the financial capacity whether through its own resources or through credit
facilities from reputable financial institutions to fulfil all of its
obligations under this Agreement.
SECTION 4.08.
Ability
to Evaluate the Risk.
MIH has
knowledge and experience in financial and business matters such that it was
capable of evaluating the risks of the investment in the Shares.
SECTION 4.09.
Brokers
and Finders.
MIH has
engaged Citigroup as its financial adviser in connection with the transaction
contemplated in this Agreement. MIH shall bear all the expenses, including
any
commission or fee, to be paid to such financial adviser in connection with
this
Agreement.
SECTION 4.10.
Purchase
Price.
Each
Seller is receiving the same Purchase Price per Share as the members of Capital
International, and there is no other consideration directly or indirectly being
paid by the Buyer.
8
ARTICLE
5
(b)
The
Sellers shall cooperate in obtaining any information required for the ▇▇▇▇
filing and to supply any information requested by any of the antitrust
authorities.
SECTION 5.03. Confidentiality.
(a) The
Parties ratify the terms and conditions of the Confidentiality Agreement, dated
February 7, 2006, and agree to comply with the obligations provided therein.
In
addition to the foregoing, from and after the date hereof, the Parties agree
jointly and severally to hold, and to cause their Affiliates and respective
officers, directors, employees, accountants, counsel, consultants, advisors
and
agents to hold, in confidence, all confidential documents and information
concerning the Company, the Business and/or the Parties, including without
limitation, certain non-public information about the proposed or potential
business strategy, operations, financial matters and other matters relating
to
the Company (the “Confidential
Information”),
except to the extent that such information can be shown to have been (i) in
the
public domain through no fault of any of the Parties or (ii) later lawfully
acquired by any of the Parties from other sources without any breach of any
law,
regulation, order or confidentiality obligation. Confidential Information may
only be disclosed in the event that any of the Parties is compelled to disclose
such Confidential Information by law, rule, regulation, order or decree enacted
by a Governmental Authority to which such Party is subject or as a result of
judicial or administrative process in connection with any action, suit,
proceeding or investigation. In any event Confidential Information is disclosed,
the disclosing Party shall take all such steps as may be reasonable in the
circumstances to agree the contents of such disclosure with the other Party
before making such disclosure.
9
(b)
From
and after the date hereof, the Parties agree to hold, and cause their Affiliates
and respective officers, directors, employees, accountants, counsel,
consultants, advisors and agents to hold, in confidence, any and all information
regarding the terms and conditions of this Agreement. The terms and conditions
of this Agreement may only be disclosed in the event that any of the Parties
is
compelled to disclose such information by law, rule, regulation, order or decree
enacted by a Governmental Authority to which the Party is subject or as a result
of judicial or administrative process in connection with any action, suit,
proceeding or investigation. In any event the terms and conditions of this
Agreement are disclosed, the Party concerned shall take all such steps as may
be
reasonable in the circumstances to agree the contents of such disclosure with
the other Party before making such disclosure.
CONDITIONS
TO CLOSING
(i)
Closing
of the Purchase of the CI Acquisition Shares.
The
Parties to the CI Stock Purchase Agreement shall have executed the CI Stock
Purchase Agreement and shall be in a position to close the purchase of the
CI
Acquisition Shares simultaneously with the transaction contemplated in this
Agreement.
(ii)
Closing
of the Subscription of the Subscription Shares.
The
Parties to the Subscription Agreement shall have executed the Subscription
Agreement and shall be in a position to close the subscription of the
Subscription Shares simultaneously with the transaction contemplated in this
Agreement.
ARTICLE
7
CLOSING
SECTION 7.01. Closing.
The
purchase and sale of the Shares and payment of the Purchase Price shall take
place at the head-offices of the Company, at ▇▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇,
25th
floor,
in the City of São Paulo, State of São Paulo (“Closing”),
on
the date hereof (the “Closing
Date”).
For
all purposes all of the transactions contemplated by this Article 7 shall be
deemed to have occurred simultaneously.
10
SECTION 7.02. Actions
by the Sellers at Closing.
On the
Closing Date, each of the Sellers shall take the following actions:
(i)
Execute and deliver this Agreement;
(ii)
Execute the term for transfer of the Shares in the Company’s Share Transfer
Registry Book;
(iii)
Execute and deliver the Subscription Agreement;
(iv)
Execute and deliver the Registration Rights Agreement;
(v)
Execute and deliver the Shareholders Agreement; and
(vi)
Deliver to the Buyer an opinion of counsel to the Sellers and the Company
confirming the enforceability and validity of the Transaction
Documents.
SECTION 7.03. Actions
by the Buyer at Closing.
On the
Closing Date, the Buyer shall take the following actions:
(i)
Execute and deliver this Agreement;
(ii)
Pay
the Purchase Price;
(iii)
Execute the term for transfer of the Shares in the Company’s Share Transfer
Registry Book;
(iv)
Execute and deliver the Subscription Agreement;
(v)
Execute and deliver the Registration Rights Agreement; and
(vi)
Execute and deliver the Shareholders Agreement.
SECTION 7.04.
Simultaneous
transactions at Closing.
All of
the transactions to occur at the Closing shall be deemed to occur
simultaneously. The Parties shall have no obligation to consummate any of the
transactions referred to in Section 7.02 and 7.03 unless all shall have been
consummated.
11
ARTICLE
8
INDEMNIFICATION
SECTION 8.02. Survival
of Indemnification Obligations.
The
indemnification obligation of the Sellers provided for in this Article 8 shall
remain in full force and effect for 5 (five) years from the date hereof.
SECTION 8.03. Only
Recourse, Limit on Indemnification.
(a) The
indemnification provided in this Article 8 shall be the sole and exclusive
remedy of any Indemnified Party (and any of their Affiliates) against the
Sellers with respect to any inaccuracy or breach of any representation, warranty
or covenant of the Sellers in this Agreement and the sale of Shares contemplated
hereby, except in respect of any available injunctive or other similar
non-monetary relief or remedies. MIH hereby acknowledges that it has relied
solely on the representations, warranties and covenants of the Sellers pursuant
to this Agreement and on no other statements, reports or other information
furnished by or on behalf of the Sellers.
(b)
The
Parties agree that any indemnification to be paid by each Seller shall be
limited to a maximum amount equivalent to 100% the actual amount of the Purchase
Price received by the applicable Seller.
12
SECTION 8.04. Indemnification
Procedures.
In the
event that any action, suit, proceeding, demand, assessment or other notice
of
claim (“Claim”)
is
filed against or made upon any Indemnified Party during the 5 (five) year
period, for which indemnification may be due from the Sellers pursuant to
Section 8.01 above, such Indemnified Party shall notify the applicable Seller,
in writing, as soon as reasonably practical, but in no event later than 1/3
of
the legal term to present a defence for the respective Claim, which notice
shall
contain, in reasonable detail, a description of the amounts being claimed and
the basis thereto. The Sellers may either decide to present a defence or
counterclaim or pay the amount sought under the Claim (including to post a
bond
for such a defence, if so required). The Sellers shall bear any and all costs
incurred, including reasonable attorney’s fees and court fees, guarantees, as
well as expenses incurred by them in relation to the defence of the Claim and
during the course of the Claim. In the event that the Sellers do not present
a
defence, counterclaim or pay the amount sought under the Claim within the 2/3
of
the period available for the presentation of the relevant defence, the
Indemnified Party shall assume the defence of the Claim. The Sellers shall
promptly and immediately reimburse MIH for any and all expenses incurred in
relation to said Claim, whether during an administrative or judicial proceeding,
including, but not limited to attorneys’ expenses, court fees, administrative
fees and penalties. If MIH assumes the defence of any Claim in accordance with
the terms of the preceding sentence, MIH shall not be entitled to agree to
any
settlement, agreement or compromise with respect thereto without the prior
written consent of the Sellers, which consent shall not be unreasonably
withheld. The Sellers shall not be required to any settlement, agreement or
compromise that (i) does not contain a full release with respect to the
respective Claim, or (ii) provides for any injunctive or other non-monetary
relief.
SECTION 8.05.
Payment
of Losses.
The
Sellers shall pay the amount of the Loss to the relevant Indemnified Party
within 10 (ten) Business Days counted as of the receipt, by the Sellers, of
written notification from the Indemnified Party in this regard containing a
copy
of a final and non-appealable decision rendered with respect thereto. All
transfers to the Indemnified Party shall be in immediately available funds
and
free and clear of PIS and/or COFINS, if applicable, and any indemnification
payment relating to a non-deductible expense of the Indemnified Party (including
direct tax and social contribution) must be grossed up to cover any and all
taxes payable by the Indemnified Party on account of such payment.
SECTION 8.06.
MIH
Indemnification.
MIH and
its shareholders shall defend, indemnify and hold the Sellers and its
shareholders, officers, directors and employees harmless from and against and
in
respect of any and all Losses incurred or suffered by any of the foregoing
in
connection with, relating to or as a result of (i) any breach of any
representations and warranties given by MIH in Article 4 hereof; and/or (ii)
any
breach by MIH of any covenant or agreement contained in this Agreement. The
procedures set forth in Section 8.04 shall apply equally to any indemnification
obligation of MIH, mutatis
mutandis,
interchanging “Sellers” for “MIH” where such terms appear in Section
8.04.
13
TERMINATION
SECTION 9.01.
Right
to Terminate.
This
Agreement may not be terminated except by the mutual written consent of the
Parties.
SECTION 9.02.
Remedies.
After
the Closing has taken place, the indemnification rights provided for in Article
8 of this Agreement shall be the sole and exclusive remedy available to the
Parties with respect to any breach of the representations and warranties of
the
Parties in this Agreement, and/or any breach of any covenant or other term
in
this Agreement.
ARTICLE
10
DISPUTE
RESOLUTION
SECTION 10.01.
Arbitration.
(a) Any
dispute arising between the Parties in connection with this Agreement, its
interpretation, validity, performance, enforceability, breach or termination,
shall be settled in an amicable way by the Parties by direct negotiations held
in good faith for a term not exceeding 30 (thirty) calendar days.
(b)
If,
upon expiration of the 30-days period, the Parties have not reached an amicable
settlement, the dispute must be submitted to the decision of an arbitration
panel and shall be finally settled under the rules of the Chamber of Mediation
and Arbitration of São Paulo - Centro
das Indústrias do Estado de São Paulo - CIESP
(“CIESP”).
(c)
The
arbitrators shall be in the number of 3 (three). MIH shall appoint 1 (one)
arbitrator and the Sellers shall appoint 1 (one) arbitrator. The Parties
designated arbitrators shall appoint the third arbitrator, who will be the
chairman of the arbitration panel.
(d)
The
arbitration shall be conducted in accordance with the CIESP rules.
(e)
The
arbitration shall take place in the city of São Paulo and shall be conducted in
the English language.
(f)
To
the fullest extent permitted by law, the Parties waive their right to file
any
remedies against (including, but not limited to) the arbitration award and
any
defences against its enforcement. The arbitration award shall be final and
binding for the Parties. Specifically for purposes of any injunction procedure,
whether of preventive, provisional or permanent nature, or even for purposes
of
the enforcement of the arbitration award, the Parties hereby elect the
jurisdiction of the Central Courts of the City of São Paulo, State of São Paulo,
with the exclusion of any other jurisdictions, no matter how privileged they
may
be.
14
ARTICLE
11
MISCELLANEOUS
SECTION 11.01.
Binding
Effect.
This
Agreement will be binding and inure to the benefit of the Parties, their
respective legal successors and permitted assignees.
SECTION 11.02.
Assignability.
The
rights and obligations set forth in this Agreement must not be assigned, except
with the written consent of the other Parties. Upon completion of the actions
required to be taken at Closing, MIH shall be entitled to contribute the Shares
in a capital increase of a wholly-owned Brazilian subsidiary.
SECTION 11.03.
Severability.
In case
any term or provision set forth in this Agreement is considered invalid, illegal
or not applicable, due to any legal provision or final court decision, all
the
other conditions and provisions hereto will remain in full force and effect.
In
case any term or provision is considered invalid, illegal or inapplicable,
the
Parties will negotiate, in good faith, the amendment of this Agreement, so
as to
effect the original intent of the Parties hereto as closely as
possible.
SECTION 11.04.
Waiver;
Amendment.
(a) No
failure of delay in exercising any right, power or privilege hereunder will
be
considered as a waiver thereof, nor will any single or partial exercise thereof
prevent the future exercise thereof or the exercise of any other right, power
or
privilege.
(b)
Any
provision of this Agreement may only be amended or waived if through written
form and signed by all the Parties hereto.
SECTION 11.05.
Notices.
All
notices and communications required or allowed pursuant to this Agreement,
will
be made in written form, in English, and will be sent by registered mail, by
fax
(receipt confirmed) or e-mail (receipt confirmed), to the following
addresses:
If
to
MIH:
MIH
(UBC)
Holdings BV
13-15
▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Fax
No.:
▇▇▇ ▇▇ ▇▇▇▇-▇▇▇
Attn.:
Messrs. ▇▇▇▇ ▇▇▇▇▇▇ / ▇▇▇▇▇ ▇▇▇▇▇▇▇
e-mail:
▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇ / ▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇
15
with
copy
to:
▇▇▇▇▇▇
Filho, ▇▇▇▇▇ Filho, Marrey Jr. e ▇▇▇▇▇▇▇ Advogados
Al.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇
▇▇▇
▇▇▇▇▇
— SP —
Brazil
Fax:
(▇▇
▇▇) ▇▇▇▇-▇▇▇▇
Attn.:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
e-mail:
▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇
If
to the
Seller:
Av.
das
Nações Unidas, 7.221, 25º andar, Pinheiros
05425-902,
São Paulo, SP, Brasil
At.:
▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Tibyriçá - General Counsel
Fax:
(▇▇▇
▇▇) ▇▇▇▇-▇▇▇▇
with
copy
to:
Machado,
Meyer, Sendacz e Opice —
Advogados
▇▇▇
▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇▇
— SP — Brazil
Fax:
(▇▇▇
▇▇) ▇▇▇▇-▇▇▇▇
At.:
▇▇.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
e-mail:
▇▇▇@▇▇▇▇.▇▇▇.▇▇
The
Parties are entitled to amend, by means of written communication, pursuant
to
this section 11.05, the addresses above.
SECTION 11.06.
Expenses.
All
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby will be paid by the Party incurring such cost
or expense.
SECTION 11.07.
Headings.
The
headings of the sections of this Agreement are included for convenience purposes
and will not in any way affect the meaning or the interpretation of this
Agreement.
SECTION 11.08.
Conversion
Rate.
Any
amounts in this Agreement expressed in United States dollars shall be converted
into Reais
by the
average of the purchase and sale rates for United States dollars published
by
the Central Bank of Brazil on the Business Days immediately prior to the date
on
which any payment is due or conversion is to be made in accordance with the
terms of this Agreement through the SISBACEN data system under rate PTAX 800,
option 5 — L — Taxas
para Contabilidade.
16
SECTION 11.09.
Counterparts;
Third Party Beneficiaries.
This
Agreement may be signed in any number of counterparts, each of which will be
an
original, with the same effect as if the signatures thereto and hereto were
upon
the same instrument. This Agreement will become effective when each Party hereto
will have received a counterpart hereof signed by the other Party hereto. No
provision of this Agreement is intended to confer upon any Person other than
the
Parties hereto any rights or remedies hereunder.
SECTION 11.10.
Entire
Agreement.
This
Agreement (including the Schedules and Exhibits hereto) constitutes the entire
agreement between the Parties with respect to the subject matter of this
Agreement and supersedes all prior agreements, understandings and offers, both
oral and written, between the Parties with respect to the subject matter of
this
Agreement.
SECTION 11.12.
Applicable
Law.
This
Agreement is governed and interpreted in accordance with the laws of the
Federative Republic of Brazil.
IN
WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly
executed by their respective authorized officers, as of the day and year first
above written, in the presence of the two witnesses named below.
|
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
/s/
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
||
|
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
|
|
|
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|
|
|
▇▇▇▇▇▇ ▇▇▇▇▇▇ |
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
|
|
|
MIH (UBC) HOLDINGS BV |
WITNESSES:
| 1) | 2) | ||
|
Name:
ID:
|
Name:
ID:
|
17
EXHIBIT
2.02
PERCENTAGE
OF PURCHASE PRICE TO EACH OF THE SELLERS
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇
|
40%
|
|
Giancarlo
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
20%
|
|
▇▇▇▇▇▇
▇▇▇▇▇▇
|
20%
|
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
20%
|
18
EXHIBIT
2.03
SELLERS’
BANK ACCOUNTS
▇▇▇▇▇▇▇
▇▇▇▇▇▇
-
Account
number at Citibank Brazil: ▇▇▇▇▇▇▇
GIANCARLO
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-
Account
number at Citibank Brazil: ▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇
-
Account
number at Citibank Brazil: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-
Account
number at Citibank Brazil: ▇▇▇▇▇▇▇
19
SCHEDULE
2.03
SHARES
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇
|
526,499
|
|
Giancarlo
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
263,249
|
|
▇▇▇▇▇▇
▇▇▇▇▇▇
|
263,249
|
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
263,249
|
20