“
Confidential Treatment Requested. Confidential portions of this
document have been redacted and filed separately with the
Commission. ”
This Quota
Purchase Agreement (“ Agreement ”) dated as of
July 22, 2009, by and among:
(I)
MOBITEC EMPREENDIMENTOS E PARTICIPAÇÕES LTDA.
, a limited liability company duly incorporated and organized under
the laws of the Federative Republic of Brazil, with registered
office in the city of São Paulo, State of São Paulo,
at Rua Fernando de Albuquerque, no. 31, Conjunto 71,
Consolação, Zip Code 01309-030, duly enrolled in the
Federal Taxpayer’s Registry (CNPJ) under no. “
Confidential material redacted and filed separately with the
Commission ”, with its corporate acts duly filed in the
Board of Trade of the State of Rio Grande do Sul under NIRE
35.223.354.545, in this act duly represented by its administrator,
Mr. Marcelo Duarte , Brazilian citizen, single,
entrepreneur, bearer of the Identity Card RG no. “
Confidential material redacted and filed separately with the
Commission ” and enrolled in the Individual
Taxpayers’ Register (CPF) under no. “
Confidential material redacted and filed separately with the
Commission ”, resident and domiciled in the City and
State of São Paulo, with offices at Rua Fernando de
Albuquerque, no. 31 – Conj. 71 –
Consolação, Zip Code 01309-030, in the city of Sao
Paulo, State of Sao Paulo, hereinafter referred to as “
Purchaser ”; and
(II)
ROBERTO JUVENTINO DEMORE , Brazilian citizen, married,
entrepreneur, resident and domiciled in the City of Caxias do Sul,
State of Rio Grande do Sul, at Rua Antonio Prado, 10, apt. 701,
Bairro Exposição, bearer of the Identity Card RG no
“ Confidential material redacted and filed separately with
the Commission ” and enrolled in the Individual
Taxpayers’ Register (CPF) under no. “
Confidential material redacted and filed separately with the
Commission ”, hereinafter referred to as “
Roberto ”; and
(III) LORENA
GIUSTI DEMORE , Brazilian citizen, married, entrepreneur,
resident and domiciled in the City of Caxias do Sul, State of Rio
Grande do Sul, at Rua Antonio Prado, 10, apt. 701, Bairro
Exposição, bearer of the Identity Card RG
no.
1
“
Confidential material redacted and filed separately with the
Commission ” and enrolled in the Individual
Taxpayers’ Register (CPF) under no. “
Confidential material redacted and filed separately with the
Commission ”, hereinafter referred to as “
Lorena ”, and together with Roberto, referred to as
the “ Sellers ”;
As intervening
party and guarantor of the obligations of the Sellers,
(IV)
JADI ITINERÁRIOS ELETRÔNICOS LTDA. , a limited
liability company duly incorporated and organized under the laws of
the Federative Republic of Brazil, with registered office in the
city of Caxias do Sul, State of Rio Grande do Sul, at Rua
João da Costa, nº. 570, Bairro São Caetano, CEP
95080-140, duly enrolled in the Federal Taxpayer’s Registry
(CNPJ) under no. “ Confidential material redacted and
filed separately with the Commission ”, herein
represented by its quotaholders and officers, Messrs. Roberto
Juventino Demore and Lorena Giusti Demore, above qualified,
hereinafter referred to as “ JADI ”;
And, as
intervening parties,
(V)
MOBITEC AB (publ), a company duly incorporated and organized
under the laws of Sweden, with registered office at Ölltorp
Industrial Area, PO Box 97, SE-524 21, Herrljunga, enrolled in the
Federal Taxpayer’s Registry (CNPJ) under no. “
Confidential material redacted and filed separately with the
Commission ”, herein represented by its Managing
Director, Mr. Oliver Andreas Wels, German, business
administrator, bearer of the German passport no. “
Confidential material redacted and filed separately with the
Commission ”, resident and domiciled at Reute 18, D-72631
Aichtal (Germany), hereinafter referred to as “ Mobitec
AB ”; and
(VI)
MOBITEC BRASIL LTDA. , a limited liability company,
incorporated under the laws of the Federative Republic of Brazil,
with registered office at the city of Caxias do Sul, State of Rio
Grande do Sul, at Rua João da Costa, nº. 570, Bairro
São Caetano, CEP 95095-270, duly enrolled in the Federal
Taxpayer’s Registry (CNPJ) under no. “
Confidential material redacted and filed separately with the
Commission ”, herein represented by its officer,
Mr. Roberto Juventino Demore, above qualified, hereinafter
referred to as “ Mobitec Brazil ” or
the
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Purchaser,
Sellers, JADI, Mobitec AB and the Company hereinafter also referred
individually as “ Party ” and collectively as
“ Parties ”.
(i) On the
date hereof and according to the JADI Reorganization, Roberto and
Lorena are the lawful and sole owners of 1,555,860 and 388,965
quotas, respectively, collectively representing 50% (fifty per
cent) of the Company’s corporate capital, with an individual
par value of R$1.00 (one real), duly subscribed and paid-up and
free and clear of any and all Encumbrances (as defined below)
(“ Quotas ”);
(ii) The
Purchaser is the lawful and sole owner of 1,944,825 quotas,
representing the remaining 50% (fifty per cent) of the
Company’s corporate capital, with an individual par value of
R$1.00 (one real), duly subscribed and paid-up;
(iii) Sellers desire to irrevocably and
definitely sell, assign, transfer and convey the totality of their
Quotas in the Company to the Purchaser and the Purchaser agrees to
irrevocably and definitely purchase and acquire such Quotas from
Sellers, according to the terms and conditions contained
herein;
(iv) Immediately after the consummation of
the assignment and transfer of the Quotas, the Purchaser will hold
one hundred per cent (100%) of the Company’s corporate
capital, hereby undertaking to restitute the plurality of the
quotaholders within the period of 180 (one hundred and eighty)
days, counted as of the date of the amendment to the articles of
association which contemplates the transfer of the Quotas, in
accordance to the provisions of the Brazilian Civil
Code.
(v) Board
of Directors of Mobitec AB,
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controlling
partner of the Purchaser, has approved all the transactions
contemplated in this Agreement, including the purchase of the
Quotas from the Sellers; and
(vi) Mobitec AB has obtained a written
authorization from BHC Interim Funding III, L.P., with regard to
the transactions contemplated in this Agreement.
NOW,
THEREFORE, in
consideration of the foregoing and the respective representations,
warranties, covenants, agreements and conditions of the Parties
hereinafter set forth, and intending to be legally bound hereby,
the Parties hereto agree to enter into this Quota Purchase
Agreement (the “ Agreement ”), which shall be
governed by the following terms and conditions:
1
DEFINITIONS; CONSTRUCTION PRINCIPLES
1.1 For
purposes of this Agreement, the following capitalized terms will
have the meanings specified below (all terms used in this Agreement
or in its Schedules which are not defined in this Section but
defined elsewhere in this Agreement or in its Schedules, will have
for purposes of this Agreement and its Schedules the meanings set
forth elsewhere in this Agreement or in its Schedules):
“
Affiliate ” when used in reference to a specified
Party, any other person that directly or indirectly Controls, is
Controlled by or is under common Control or shared Control with the
specified Party. As used in this definition, “Control”
(including, with its related meanings, “controlled by”
and “under common control with”) shall mean possession,
directly or indirectly, of the power to administer or to instruct
management’s administration of policies (whether through
ownership of securities or partnership or other ownership
interests, by contract or otherwise). For purposes of this
Agreement any person owning fifty per cent (50%) or more of the
voting securities of
4
another person
shall be deemed to control that person.
“
Assets ” has the meaning set forth in
Section 4.12.
“
Brazilian GAAP ” means the generally accepted
accounting principles and practices in Brazil and according to
Brazilian accounting, corporate and tax legislation, including the
amendments introduced by Laws 11,638/2007 and
11,941/2009.
“
Business Day(s) ” means any other day than a Saturday,
Sunday or public holiday in São Paulo, SP, Brazil, or in New
York, New York, United States of America.
“
Claim Notice ” has the meaning set forth in
Section 7.8 (a).
“
Closing ” has the meaning given to it in
Section 2.1.
“
Closing Balance Sheet ” has the meaning given to it in
Section 4.4.2.
“
Closing Date ” has the meaning given to it in
Section 2.1.
“
Consolidated Financial Statements ” has the meaning
set forth in Section 4.4.1.
“
Effective Date ” means the 10 th Business Day following the receipt by the
Purchaser from the Sellers of a copy of the articles of association
and/or Partner’s resolution of JADI approving the JADI
Reorganization and of the amendment to the articles of association
of the Company reflecting the assignment of the Quotas from JADI to
the Sellers, both duly registered with the Board of Trade of the
State of Rio Grande do Sul.
“
Encumbrances ” shall mean any and all liens,
claims,
5
charges,
security interests, pledges, mortgages, pre-emption or first
refusal rights (including, without limitation, any corporate law or
contractual rights for the benefit of the Sellers or third parties)
or other encumbrances or rights or claims of others (including,
without limitation, any options, agreements, or similar rights) of
any nature whatsoever.
“
Exchange Rate ” means, for any given date, the selling
rate for the dollars of the United States of America as quoted by
the Central Bank of Brazil via SISBACEN for PTAX-800, option 5. If,
for any reason, the PTAX-800 rate is not quoted by the Central Bank
of Brazil, the Exchange Rate shall be the average of the three
average exchange selling rates of the dollars of the United States
of America quoted by each of the following Brazilian banks:
(i) Citibank S.A., (ii) Banco Santander S.A. and
(iii) Itaú — Unibanco for the commercial
transactions performed in the business day immediately preceding
the relevant date.
“
Financed Amount ” has the meaning set forth in
Section 2.3.
“
Quarter Installment ” has the meaning set forth in
Section 2.3. (b)
“
Financed Amount Interest ” has the meaning set forth
in Section 2.3. (b)(i).
“
Governmental Authority ” means any federal, state,
local or foreign government or any court, tribunal, administrative
agency or commission or other governmental or regulatory authority
or agency, domestic, foreign or supranational.
“
Indebtedness” means, without duplication, (a) all
obligations for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations evidencing bonds,
debentures, notes or other similar instruments or upon which
interest charges are customarily paid, (c) all guarantees of
the foregoing, (d) all obligations for the deferred purchase
price of
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property or
services (other than current accounts payable arising in the
ordinary course of business), (e) all payment obligations with
respect to interest rate or currency protection agreements or other
hedging contracts, (f) all obligations as an account party
under any letter of credit and (g) all obligations under
capital leases. For the avoidance of doubt,
“Indebtedness” shall not include ordinary course trade
payable to vendors.
“
Indemnified Party ” has the meaning set forth in
Section 7.8.
“
Indemnifying Party ” has the meaning set forth in
Section 7.8.
“
Intellectual Property ” shall mean patents,
trademarks, trade names, service marks, service names, copyrights,
trade secrets and other proprietary intellectual property, as well
as all pending applications, issued registrations and registrations
rights with respect to any of the foregoing.
“ JADI
Reorganization ” has the meaning set forth in
Section 4.25.
“
Judgments ” means any judgments, orders, injunctions
(temporary or permanent), decrees, rulings or awards of any
Governmental Entity, arbitrator or other judicial
authority.
“
Knowledge ” means, with respect to any person, the
actual knowledge of such person, and the knowledge that such person
would have acquired upon diligent inquiry or that is imputed to
such person by operation of law.
“
Law ” means any federal, state, local or foreign or
administrative law, statute, code, ordinance, rule, regulation,
settlement, awards or other requirement enacted, promulgated,
issued or entered by any Governmental Authority.
7
“
Liabilities ” means any liabilities, debts or
obligations of any nature, whether known or unknown, accrued,
absolute, fixed, contingent, liquidated, unliquidated or otherwise
and whether due or to become due.
“
Losses ” means any and all damages, claims, losses,
costs, expenses, fines, fees, deficiencies, interest, awards,
judgments, amounts paid in settlement and penalties (including,
without limitation, reasonable attorneys’, consultants’
and experts’ fees and expenses and other costs of defending,
investigating or settling claims) actually suffered or incurred by
a party (including, without limitation, in connection with any
Proceeding brought or otherwise initiated by any of the
Parties).
“
Notice of Payment Default of the First Promissory Note
” has the meaning set forth in Section 2.5.1.
“
Notice of Payment Default of the Second Promissory Note
” has the meaning set forth in Section 2.6.1.
“
Offer Notice ” has the meaning set forth in
Section 10.2.
“
Offered Quotas ” has the meaning set forth in
Section 10.2 (a).
“
Offering Seller ” has the meaning set forth in
Section 10.2.
“
Period for Exercising Right of First Offer or First Refusal
” has the meaning set forth in
Section 10.2.1.
“
Proceeding ” means any action, causes of action,
claim, suit, complaint, subpoena, petition, investigation,
proceeding, arbitration, mediation, litigation or governmental
authority investigation, audit, document request or other
proceeding, whether
8
civil or
criminal, in law or in equity, or before any arbitrator or a
Governmental Authority.
“
First Promissory Note ” has the meaning set forth in
Section 2.5.
“
Second Promissory Note ” has the meaning set forth in
Section 2.6.
“
Purchaser’s Indemnified Party ” has the meaning
set forth in Section 7.1.
“
Purchase Price ” has the meaning set forth in
Section 2.2.
“
Effective Date Amount ” has the meaning set forth in
Section 2.3 (a).
“
Quotas ” has the meaning given to it in the Whereas
(i) and shall include all quotas currently held by the Sellers
in the Company and also any and all quotas to be held by the
Sellers in the Company resulting from any capital subscription,
warrants, options, bonus, grouping or splitting.
“
Right of First Offer or First Refusal ” has the
meaning set forth in Section 10.1.
“
Rules ” has the meaning set forth in
Section 13.1.2.
“
SELIC ” means the fee calculated in the Special System
of Settlement and Custody and obtained through the calculation of
the adjusted and weighted mean rate of daily funding operations,
based on government bonds and settled in the referred system or in
assets’ clearing and settlement agencies, as matched
transactions.
“
Sellers’ Indemnified Party ” has the meaning set
forth in Section 7.4.
“
Settlement Date ” has the meaning set forth in
Section
9
“
Skipped Installment ” has the meaning set forth in
Section 2.3 (b)(ii).
“
Tax ”, “ Taxes ” and “
Taxation ” shall include all federal, state and
municipal taxes, assessments, duties or similar charges, whether
based on income, profits, gross receipts, franchise, sales, use,
occupation, registration duties, excise, circulation of goods and
merchandise, withholdings, social security taxes, social security
contributions, property, customs, fees, interest and penalties
thereon or related thereto and “Tax Authorities” means
the authorities administering or imposing such Taxes.
“
Third Party Claim ” has the meaning set forth in
Section 7.8 (a).
1.2
Construction Principles . This Agreement shall be construed
in accordance with the following principles:
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1.2.1
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The
headings and captions herein are inserted for convenience of
reference only and shall not limit or construe the clauses,
paragraphs or Sections to which they apply.
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1.2.2
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The
terms “include”, “including”, and similar
terms shall be construed as if followed by the phrase
“without limitation”.
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1.2.3
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Whenever required by the context,
references in this Agreement in the singular shall include the
plural and vice versa, and the masculine gender shall include the
feminine gender and vice versa.
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1.2.4
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References to any document or other
instruments include all amendments, replacements and restatements
thereof and
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supplements thereto except where
expressly provided otherwise.
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1.2.5
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Unless otherwise expressly stated
herein, references to Articles, Sections, or Schedules are to
Articles, Sections and Schedules of this Agreement.
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1.2.6
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All
references to persons include their successors, and permitted
transferees, designees and assignees.
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1.2.7
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The
language in all parts of this Agreement shall in all cases be
construed simply and according to its fair meaning, and not
strictly for or against any of the Parties hereto.
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2 SALE
AND PURCHASE OF QUOTAS
2.1 Sale and
Purchase of Quotas . Upon the terms and subject to the
conditions contained herein, on the date hereof, each Seller
severally sells and transfers all of such Sellers’ right,
title and interest in and to the Quotas owned by him/her and as
specified in the chart below, and Purchaser purchases the Quotas
from each Seller, for the consideration hereinafter set forth;
provided , however , that Purchaser shall not make
any payment for the Quotas unless and until all Quotas set forth
below are delivered concurrently to Purchaser, free and clear of
all Encumbrances, as provided herein. The closing of the sale and
purchase of the Quotas (the “ Closing ” and the
date of Closing referred to as “ Closing Date ”)
shall take place concurrently with the execution and delivery of
this Agreement and the effectiveness of such transfer and
assignment shall retroact to July 1, 2009.
11
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Number of
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Quotas to
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Percentage
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Quotaholder
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be sold
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of total
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1,555,860
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80
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388,965
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20
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1,944,825
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100
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2.1.1
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In
order to consummate the acquisition and transfer of the Quotas, and
consequently all the rights and advantages inherent thereto, on the
Closing Date, Purchaser and Sellers shall execute an amendment to
Company’s Articles of Association, substantially in the form
of Schedule 2.1.1 hereto, which shall be effective as of the
date of signature.
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2.2 Purchase
Price. The total purchase price to be paid by Purchaser to the
Sellers in consideration of the Quotas is USD 2,950,000.00 (two
million nine hundred and fifth thousand united states dollars), to
be converted in Brazilian currency on the Effective Date, according
to the Exchange Rate (the “ Purchase Price ”).
The Purchase Price shall be payable on a pro rata basis to each
Seller for the amount of Quotas owned by each Seller, as per the
chart indicated in Section 2.1 above. The Purchase Amount
shall be paid as per Section 2.3 below.
2.3. Payment
of Purchase Price; Delivery of Purchased Shares
(a) On the
Effective Date, Purchaser shall pay one million United States
dollars (US$ 1,000,000) to be converted in Brazilian currency
(Reais), according to the Exchange Rate on the Effective Date,
payable on a pro rata basis to each Seller for the amount of Quotas
owned by such Seller as per the chart indicated in Section 2.1
above, which shall be paid by wire
12
transfer of
immediately available funds into the accounts designated by the
Sellers below (“ Effective Date Amount
”).
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Account Details
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Lorena (titular) and
Roberto,
jointly
Banco do Brasil S/A
Agency 5671.5
Account number nº “ Confidential material redacted
and filed separately with the Commission. ”
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Lorena (titular) and
Roberto,
jointly
Banco do Brasil S/A
Agency 5671.5
Account number nº “ Confidential material redacted
and filed separately with the Commission. ”
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(b) The
remaining amount of the Purchase Price (the “ Financed
Amount ”), in the equivalent to one million, nine hundred
and fifty thousand United States dollars (US$ 1,950,000) shall be
paid by the Purchaser to the Sellers, in Brazilian reais as per the
Exchange Rate, on a pro rata basis to each Seller for the amount of
Quotas owned by such Seller as per the chart indicated in
Section 2.1 above, in twelve (12) successive fixed quarterly
installments due within 30 days following close of each
calendar quarter (the “ Quarter Installments ”).
The Quarter Installments shall be paid in Brazilian currency
(Reais) and converted according to the Exchange Rate on the day
immediately prior to payment. The first quarterly payment
installment shall be due within 30 days after the close of the
calendar quarter ending December 31, 2009 and the subsequent
11 installments shall be due within 30 days after the close of
each subsequent calendar quarters, in such a manner that the
2 nd
Installment shall be due within
30 days after the close of the calendar quarter ending
March 31, 2010, and so on. The last installment shall be due
within 30 days after the close of the calendar quarter ending
September 30, 2012 (“ Settlement Date ”).
The payments of each installment shall be made by wire transfer of
immediately available funds into the accounts designated by the
Sellers above or to
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a different
account, provided written notice of the designated account is given
to the Purchaser within 10 days from the end of the respective
calendar quarter. The Purchaser and Sellers agree to the following
in relation to the Financed Amount:
(i)
Interest . The outstanding balance of the Financed Amount
shall accrue a simple interest on the principal amount thereof from
the Closing Date through the date of each Quarter Installment, at
the rate of five per cent (5%) per annum, except if otherwise
agreed by the Parties, shall be paid on the same date of the
payment of each Quarter Installment (“ Financed Amount
Interest ”);
(ii)
Skipping of Installments . The Purchaser may, at its own
discretion, skip the payment of the amount of the principal of two
Quarter Installments (each installment skipped referred to as
“ Skipped Installment ”), provided, however,
that (a) the two Skipped Installments may not be successive;
(b) the Financed Amount Interest of the Skipped Installment
shall be paid by the Purchaser on the due date, as per
Section 2.3 (b) (i) above; (c) the Purchaser notifies the
Sellers of its intention not to pay the Skipped Installment within
30 days of the date the payment of such Skipped Installment is
due; (d) the Skipped Installments shall be due on the
Settlement Date; (e) the Skipped Installments shall accrue a
penalty interest at a rate of 9% per annum on the principal amount
of the Skipped Installment from the date such Skipped Installment
would be due. Nevertheless, the non payment of any two successive
Quarter Installments, shall result in the acceleration of all of
the Quarter Installments, accrued by due interests calculated pro
rata temporis and the penalty established above.
14
(c) In the
event of Third Party Claims in an aggregate amount greater than US$
75,000.00 (seventy five thousand united states dollars) arise
between the Closing Date and the Settlement Date, the Purchaser may
chose to hold back one or more of the Quarter Installments not yet
paid in order to guarantee the full amount of such Third Party
Claims, as per Section 7.10.1. The Parties agree and
acknowledge that once this limit is passed, the Purchaser may
withhold the full and aggregate amount of the amounts provided in
the Third Party Claims and not only the amount that passes the
limit. The Quarter Installments withhold due to a Third Party Claim
shall accrue an interest rate under the terms of Section 2.3
(b) (i) until the date of payment of such Quarter Installment to
the Sellers, over the outstanding amount of the withheld
amount.
2.4. Upon
delivery of the Effective Date Amount and each of the Quarter
Installments, as per the terms of this Agreement, such portion of
the Purchase Price shall be considered fully released and the
Purchaser shall be considered as having fully complied with its
obligation to pay such portion of the Purchase Price. Therefore,
the deposit of the funds in the Sellers’ bank account shall
constitute an irrevocable and irreversible release from the Sellers
to the Purchaser regarding the payment of such portion of the
Purchase Price and will give the Sellers no right to claim from the
Purchaser for any amount regarding such payment. The deposit of
each Quarter Installment of the Financed Amount into the
Sellers’ bank accounts shall also constitute an irrevocable
and irreversible release from the Sellers to the Purchaser
regarding the payment of such Quarter Installment of the Financed
Amount and will give the Sellers no right to claim from the
Purchaser for any amount regarding such payment.
2.5. As a
guarantee of the payment of this Effective
15
Date Amount,
the Purchaser shall deliver a pro solvendo , non-negotiable,
non-transferrable and non-endorseable promissory note in the form
of the Schedule 2.5 of this Agreement, which shall be
delivered with the co-signature of Mobitec AB, in the capacity of
controlling partner of the Purchaser (the “First Promissory
Note”).
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2.5.1.
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In
case the Purchaser is in default with its payment obligation of the
Effective Date Amount as per the terms of this Agreement, and has
not cured such default within five (5) Business Days from the
date on which Effective Date Amount was due, the Sellers shall
deliver a written notice to the Purchaser and to Mobitec AB, within
thirty (30) days counted from end of the five (5) day
cure period (“ Notice of Payment Default of the First
Promissory Note ”).
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2.5.2.
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Upon receipt of the Notice Payment
Default, the Purchaser and Mobitec AB shall have a five
(5) Business Day period to respond to the Sellers in writing,
indicating that the payment of the alleged delayed Effective Date
Amount was duly made, with evidence of payment.
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2.5.3.
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In
the event any of the Purchaser or Mobitec AB does not respond the
Notice of Payment Default, under the terms of Section 2.5.2
and is therefore in default, the Sellers shall be entitled to
exercise all rights arising from its capacity of beneficiary of the
First Promissory Note, and use all measures and actions guaranteed
according to Brazilian Law, notwithstanding any other applicable
measures.
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2.5.4.
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The
execution and delivery by the Purchaser of the First Promissory
Note shall not affect in any way whatsoever the rights or
obligations of the Purchaser and Mobitec AB under this
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Agreement, and
the rights and claims of the Sellers under the First Promissory
Note held by it shall not replace or supersede the rights and
claims of the Sellers hereunder.
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2.5.5.
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The
First Promissory Note and its delivery shall be bound to the terms
and conditions of this Agreement, serving as a guarantee and
evidence of the payment of the Effective Date Amount and shall not
be subject to any readjustment or monetary correction. The
outstanding amount in default shall accrue an interest at the rate
of 9% (nine per cent) per annum.
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2.6.
Security for the Financed Amount . As a security for the
full performance of the obligations of the Purchaser to pay the
Financed Amount, Mobitec AB, in its capacity of controlling
quotaholder of the Purchaser, shall deliver to the Sellers a
promissory note (the “ Second Promissory Note
”), in the form of Schedule 2.6 and shall be delivered
on the Closing Date.
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2.6.1.
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In
case the Purchaser is in default with its payment obligation of any
of the Quarter Installments as per the terms of this Agreement, and
has not cured such default within five (5) Business Days from
the date on which the Installment was due, with due regard to the
Skipped Installments, the Sellers shall deliver a written notice to
the Purchaser and to Mobitec AB, within thirty (30) days
counted from end of the five (5) day cure period (“
Notice of Payment Default of the Second Promissory Note
”).
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2.6.2.
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Upon receipt of the Notice Payment
Default, the Purchaser and Mobitec AB shall have a five
(5) Business Day period to respond to the Sellers in writing,
indicating that the payment
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of the alleged
delayed Installment was duly made, with evidence of
payment.
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2.6.3.
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In
the event any of the Purchaser or Mobitec AB does not respond the
Notice of Payment Default, under the terms of Section 2.6.2
and is therefore in default, the Sellers shall be entitled to
exercise all rights arising from its capacity of beneficiary of the
Second Promissory Note, and use all measures and actions guaranteed
according to Brazilian and Swedish Law, notwithstanding any other
applicable measures.
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2.6.4.
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The
execution and delivery by Mobitec AB of the Second Promissory Note
shall not affect in any way whatsoever the rights or obligations of
the Purchaser and Mobitec AB under this Agreement, and the rights
and claims of the Sellers under the Second Promissory Note held by
it shall not replace or supersede the rights and claims of the
Sellers hereunder.
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2.6.5.
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The
Second Promissory Note shall be amended and restated to reflect an
adjusted amount after each Installment is paid. In relation to the
amounts held back by the Purchaser, as described in
Section 2.3 (c), the Sellers acknowledge that such hold back
shall not constitute a default of the Purchaser under the terms
hereof or under the Second Promissory Note; likewise, on the other
hand, the withholding provided herein shall not mean the acceptance
of the responsibility of the Sellers under the Third Party
Claim.
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2.7.
Deliveries at Closing.
On the Closing
Date, the following acts shall be carried out by the
Parties:
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(a)
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the
Sellers and the Company shall sign and deliver a statement,
recognizing that, except with relation to the remuneration due to
Roberto as Executive Officer of the Company up to the present data,
calculated pro rata temporis , as of the Closing Date the
Company does not owe any remuneration or amounts, including credits
of the Company that Sellers or JADI could be entitled to receive
while partners or officers of the Company, such as dividends,
profits and bonus, nor the Sellers owe to the Company any amount as
a result of their capacities as officers or partners of the
Company, such statement also constituting a general, complete and
reciprocal release to the Sellers and to the Company and its
management as regards the aforementioned payments;
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(b)
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the
Sellers shall grant to the Purchaser a power of attorney containing
powers for the Purchaser to represent each of the Sellers in their
capacity as partners of the Company in any and all acts required to
consummate the registration of any amendment to the Articles of
Association of the Company with the Board of Trade of the State of
Rio Grande do Sul, in order to implement the transactions contained
in this Agreement, as per the Schedule 2.7(b) to this
Agreement;
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(c)
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the
Sellers and the Purchaser shall execute the amendment to the
Articles of Association of Mobitec Brazil in order to consummate
the transfer of the Quotas from the Sellers to the
Purchaser;
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(d)
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the
Sellers shall deliver to the Purchaser the following valid
certificates that are necessary to register the Amendment to the
Articles of Association of the Company with the Board of Trade of
the State of Rio Grande do Sul and shall ensure that these
certificates will remain valid on the Effective Date: (i) Debt
Clearance Certificate (CND) regarding social
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security
contributions issued by Federal Revenue Service of Brazil (
Certidão Negativa de Débitos Relativos às
Contribuições Previdenciárias e as de
Terceiros (INSS) emitida pela Secretaria da Receita Federal do
Brasil ); (ii) Debt Clearance Certificate
(CND) regarding federal tax debts and overdue federal
liabilities issued jointly by the Federal Revenue Service of Brazil
and by the Office of the Attorney-General of the National Treasury
( Certidão conjunta negativa de débitos relativos
aos tributos federais e à dívida ativa da
União emitida pela Secretaria da Receita Federal do Brasil e
Procuradoria Geral da Fazenda Nacional ); and
(ii) Certificate of good standing regarding contributions to
the Unemployment Guarantee Fund (FGTS) issued by the Federal
Savings Bank ( Certificado de Regularidade Fiscal
(CRF) perante o Fundo de Garantia por Tempo de Serviço
– FGTS emitido pela Caixa Econômica Federal
);
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(e)
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the
execution of (i) an Officers Agreement between Roberto and the
Company and (ii) a Services and Non-Compete Agreement between
a company held by Roberto and the Company in order to govern
Roberto’s relationship with the Company from and after the
Closing Date, including, without limitation, provisions relating to
non-competition, in the form of the draft attached hereto as
Schedule 2.7 (e);
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(f)
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the
execution by JADI, the Sellers and the Company of a Preferred
Supply Agreement, in order to regulate the terms and conditions of
the supply by JADI of equipments and components used by the
Company, to come into force on the Closing Date, in the form of the
draft attached hereto as Schedule 2.7 (f);
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(g)
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the
execution of the Termination of the Quotaholders’ Agreement
to become effective
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as of Closing
Date, in the form of the draft attached hereto as Schedule 2.7
(g);
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(h)
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formal revocation of the power of
attorney granted by the Company to Lorena.
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(i)
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the
delivery of the First and Second Promissory Notes, under the terms
of Sections 2.5 and 2.6;
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(j)
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the
approval of the transactions contemplated in this Agreement by the
Board of Directors of Mobitec AB, in its capacity of controlling
quotaholder of the Company, including the purchase of the Quotas
from the Sellers;
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(k)
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Mobitec AB shall deliver a written
approval from BHC Interim Funding III, L.P., with regard to the
transactions contemplated in this Agreement; and
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(l)
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the
delivery of the power of attorney under the terms of
Section 2.10.
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2.7.1.
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All
actions to be taken at the Closing shall be deemed to have taken
place simultaneously, and no transfer shall be considered to have
been made until all transactions to be taken at the Closing, and
all documents have been completed.
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2.8.
Deliveries on the Effective Date
On the
Effective Date, the following acts shall be carried out by the
Parties:
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(a)
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the
payment by the Purchaser of the Effective Date Amount as per
Section 2.3(a) of this Agreement;
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(b)
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delivery of the registered Amendment
to the Articles of Association of JADI and the Company reflecting
the transfer of the Quotas from JADI to Roberto and Lorena and
any
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other measures
of the JADI Reorganization, duly registered with the Board of
Trade;
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(c)
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Certificate signed by the Sellers
and JADI in the form of the draft attached as Schedule 2.8
(c) that all representations and warranties given on the
Closing Date remain the same on the Effective Date;
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2.8.1.
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All
actions to be taken on the Effective Date shall be deemed to have
taken place simultaneously, and no delivery or payment shall be
considered to have been made until all transactions to be taken on
the Effective Date, and all documents to be executed in connection
therewith have been completed.
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2.9
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Any
and all Taxes due by the Sellers on the payment of the Purchase
Price by the Purchaser to the Sellers, including, without
limitation, any amounts to be withheld or deducted or any capital
gains tax shall be the responsibility of the Sellers and be borne
exclusively by them.
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2.10
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Conduct of Business from Closing
Date to Effective Date: As a result of the JADI
Reorganization, during the period from the date of this Agreement
to the Effective Date, except as may be required by applicable Law,
Sellers and JADI, in their capacity as partners or officers of the
Company, as applicable, shall not, in relation to the Company,
without the consent of Purchaser and out of the normal course of
business of the Company:
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(a)
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sell, transfer (including by
operation of Law), give, pledge, encumber, assign or otherwise
dispose of, or enter into any contract, option or other arrangement
or understanding with respect to the sale, transfer, gift, pledge,
encumbrance, assignment or other disposition of, the
Quotas,
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(b)
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take any other action that would
have the effect of preventing or delaying Sellers from selling the
Quotas;
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(c)
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sell, transfer, lease, pledge,
mortgage, encumber, write-off, or otherwise dispose of any amount
of property or fixed assets;
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(d)
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amend the governing documents of the
Company, or take any action to wind up its affairs or
dissolve;
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(e)
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merge or consolidate with any other
person, or acquire equity participation (or convertible securities)
in the capital stock of any other person or assets from any other
person;
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(f)
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issue, redeem, amortize, sell, grant
or transfer any equity securities, securities convertible into
equity securities or warrants, options or other rights to acquire
any such securities (other than amortization of debt or other
securities convertible into equity securities or
warrants);
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(g)
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grant, create or incur any
Encumbrances on any of its assets or properties;
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(h)
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pay, discharge, settle, compromise
or satisfy, or agree to pay, discharge, settle, compromise or
satisfy, any Proceeding or Judgment, as well as file any
Proceeding;
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(i)
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make any loan, redeem or purchase
any equity interests, transfer any asset or pay any commission,
salary or bonus, or pay any rent, commission or fee, or enter into
or agree to enter into any transaction to, with or for the benefit
of any related party (or agree, whether in writing or otherwise, to
do the foregoing);
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(j)
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incur, assume, forgive, prepay,
cancel, settle or alter the terms of any Indebtedness or any
contract;
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(k)
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waive any right under any contract
or applicable Law or grant any benefit without consideration
therefore;
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(l)
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enter into any licensing arrangement
or joint venture;
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(m)
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make any general wage or salary
increase or any increase in compensation payable or to become
payable to any directors, officers or employees;
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(n)
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execute any collective bargaining
agreement, including any amendment (including extension) to any
existing agreement or labor union contract in force;
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(o)
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declare or pay any dividend or
interest on its own capital and/or other payment of any nature or
distribution to shareholders (even in the ordinary course of
business);
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(p)
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make any termination payments to, or
enter into any termination arrangement with, any directors,
officers or employees (even in the ordinary course of
business);
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(q)
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authorize any of, or commit, propose
or agree to take or not take (as the case may be) any of the
foregoing actions; or
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(r)
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take any action that could
reasonably be expected to cause any representation or warranty in
this Agreement to be untrue or incorrect as of the date when made
or as of a future date or that would result in any of the
conditions set forth in 3 below not being satisfied.
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2.9.1.
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Roberto’s actions shall also
be subject to the Officers Agreement and Services and
Non-
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Compete
Agreement mentioned above.
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2.10. This
Agreement may be terminated by the Sellers (at its exclusive
criteria) at any time, in case of default of the Purchaser of its
responsibility to pay the Acquisition Price evidenced by the First
Promissory Note, provided the terms of Section 2.5 are
observed. In order to exercise the right to terminate this
Agreement, without prejudice of the effectiveness of such
termination, which shall occur immediately and produce all legal
effects, the Sellers shall notify the Purchaser, at any time after
the periods granted to the Company to make the payments have
elapsed. In the event of termination of this Agreement, the Parties
shall take the necessary measures to return to the status quo prior
to Closing Date, so that the Quotas transferred to the Purchaser
shall be transferred back to the Sellers and all agreements signed
on the Closing Date shall be considered null and void. Therefore,
the Shareholders’ Agreement currently in force and terminated
as per this Agreement, shall remain in force according to the same
terms and conditions. In this respect, the Purchaser shall grant to
the Sellers a power of attorney as per Schedule 2.10
containing powers for the Sellers to represent the Purchaser in its
capacity as partner of the Company, exclusively for the execution
of the amendment to the Articles of Association of the Company and
necessary documents to transfer the Quotas transferred according to
this Agreement back to the Sellers.
2.11. The right
of terminate this Agreement assigned to the Sellers constitutes an
additional right related to any other that the Sellers may have
under the terms of this Agreement, or under any other manner.
Therefore, the exercise of the right of termination shall not
constitute a choice between such rights conceded to the Sellers,
exception made to the payment of the Acquisition Price, which may
not be demanded in the event of termination of this Agreement by
the Sellers. In case of termination of this Agreement, all
obligations shall also be terminated, except to those related to
jurisdiction and
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applicable law,
which shall remain in force; provided, however, that the respective
rights and obligations of the Parties related to any violations or
defaults under this Agreement shall remain in force even in case of
termination of this Agreement.
3.
CONDITIONS TO THE PURCHASE OF THE QUOTAS
3.1.
Conditions to Obligations of Each Party . The obligations of
the Purchaser and each of the Sellers to consummate the
transactions contemplated herein are subject to the satisfaction,
on or prior to the Closing Date (or on the Effective Date, as
applicable), of the following conditions:
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(a)
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no
provision of any applicable Law or Judgment of any Governmental
Authority or other legal restraint (whether temporary, preliminary
or permanent) shall have been issued, enacted, entered, promulgated
or enforced and be in effect that prohibits, restrains or enjoins
the consummation of the transactions contemplated in this
Agreement;
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(b)
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all
third party consents shall have been obtained, in full force and
effect, and shall not be subject to the satisfaction of any
condition that has not been satisfied, including, without
limitation, the consent of customers in payment orders or
agreements, whether written or oral, that could give rise for such
customers to terminate the agreement or withdraw from the payment
order;
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(c)
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the
board of directors of the quotaholders of the Purchaser shall have
approved the transactions contemplated under this Agreement,
including the purchase of the Quotas from the Sellers;
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(d)
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Mobitec AB has obtained a written
consent from BHC Interim Funding III, L.P. in relation to the
transactions contemplated herein;
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(e)
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All
of the representations and warranties of Sellers and Purchasers
contained herein shall be true and correct in all respects (unless
any such representation and warranty is qualified by a materiality
standard, in which case such representation and warranty shall be
true and correct in all respects) on and as of the Closing Date and
Effective Date;
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(f)
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The
Sellers are entitled to transfer the Quotas to the Purchaser on the
Closing Date and are the lawful owners of the Quotas, free and
clear from any Encumbrances.
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3.2.
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Each Seller hereby agrees to
guarantee, jointly and severally the effectiveness of the JADI
Reorganization and indemnify and hold the Purchaser and Mobitec AB
harmless for any Losses that may result from the JADI
Reorganization, including, without limitation, transferring the
Quotas directly from JADI if the transfer of the Quotas from JADI
to the Sellers is declared void or invalid for any reason
whatsoever.
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4.
REPRESENTATIONS AND WARRANTIES OF SELLERS AND
JADI
As an
inducement to Purchaser and Mobitec AB to enter into this
Agreement, each of the Sellers and JADI, jointly and severally,
hereby represent and warrant to the Purchaser and Mobitec AB, on
their behalf and on behalf of the Company, that as of the date
hereof, which will remain valid on the Effective Date:
4.1. Capacity
and Title of Ownership of the Sellers
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4.1.1.
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Capacity . The Sellers and the Company have
full capacity to enter into this Agreement and each ancillary
agreement to which they are a party as set forth herein, to carry
out their
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obligations
hereunder and thereunder and to consummate the transactions
contemplated hereby and thereby.
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4.1.2.
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Due Authorization.
The execution and
delivery by the Sellers and the Company of this Agreement and of
the ancillary agreements has been duly authorized, and assuming due
authorization, execution and delivery by Purchaser, shall
constitute a legal, valid and binding obligations of the Sellers
and the Company, enforceable against the Sellers in accordance with
their respective terms, except, in the case of the First and Second
Promissory Notes and the financing terms of this Agreement, as may
be limited by applicable bankruptcy, insolvency, judicial recovery
( recuperação judicial), reorganization or
similar law affecting creditors’ rights generally.
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4.1.3.
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Organization of the
Company. The
Company is duly incorporated, validly existing and organized under
the laws of the Federative Republic of Brazil and has power to own
all its assets and to carry on its business as now being owned or
conducted. The Company is not subject to any proceedings having as
object the prevention or resolution of business difficulties or of
a Judgment of or a request for dissolution, liquidation, judicial
recovery ( recuperação judicial), bankruptcy
or receivership.
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4.1.4.
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Ownership . At the present date and subject to
the JADI Reorganization, the Sellers (i) are the sole owners
and lawful possessors of all of the Quotas, which represent 50% of
the quotas of the capital stock of the Company, all of which are
free and clear of any Encumbrances; (ii) acknowledge that
there are no priority rights or purchase preferences,
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commitments,
conversion rights, swap rights, or other agreements of any type
whatsoever preventing the purchase, issue or sale of the Quotas,
except as pursuant to the terms of the Articles of Association
currently in force; (iii) do not hold any other quotas or
securities or right
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