Exhibit 10.1
EQUITY PURCHASE
AGREEMENT
BY AND AMONG
COMUNICACIONES
NEXTEL DE MEXICO, S.A. DE C.V.
AND
SERVICIOS NII, S.A.
DE C.V.
AND
AMERICA ONLINE LATIN
AMERICA, INC.
AND
LATIN AMERICA
QUOTAHOLDER, LLC
AND
AOL MEXICO, S. DE
R.L. DE C.V.
Dated as of
April 25, 2005
EQUITY PURCHASE AGREEMENT
This EQUITY
PURCHASE AGREEMENT , dated as of April 25, 2005, is
entered into by and among AMERICA ONLINE LATIN AMERICA, INC.
(“AOLA”), a Delaware corporation and LATIN AMERICA
QUOTAHOLDER, LLC (“AOLA Quotaholder”), a Delaware
limited liability company (each, a “Seller” and
collectively, the “Sellers”); AOL MEXICO, S. DE R.L.
DE C.V. (the “Company”), a sociedad de
responsabilidad limitada de capital variable organized and
existing under the laws of Mexico; COMUNICACIONES NEXTEL DE
MéXICO, S.A. DE C.V. (“Comunicaciones
Nextel”), a sociedad anónima de capital variable
organized and existing under the laws of Mexico; and SERVICIOS
NII, S.A. DE C.V. (“Servicios”), a sociedad
anónima de capital variable organized and existing under
the laws of Mexico (each, a “Purchaser” and
collectively, the “Purchasers”). Capitalized terms used
and not otherwise defined herein have the meanings set forth in
Article 10.
RECITALS
A. The
Sellers own all of the outstanding equity interests of the
Company.
B. The
Purchasers desire to purchase and acquire from each Seller, and
each Seller desires to sell and transfer to the Purchasers, the
Company Equity Interests (as defined in Section 2.3(a)) owned
by such Seller at the Closing (as defined in Section 1.2),
which in the aggregate will constitute all of the outstanding
Company Equity Interests at such time, for the consideration, and
upon the terms and subject to the conditions set forth in this
Agreement and the related documents to be executed and delivered in
connection herewith (the “Acquisition”).
C. The
Company, the Sellers and the Purchasers desire to make certain
representations, warranties, covenants and agreements in connection
with the Acquisition.
NOW, THEREFORE, in
consideration of the covenants, representations and warranties set
forth herein, intending to be legally bound hereby, the parties
agree as follows:
ARTICLE 1
THE ACQUISITION
1.1
The Acquisition . Upon the terms and subject to the
conditions set forth in this Agreement and upon the representations
and warranties made herein by each of the parties to the other, on
the Closing Date, the Purchasers shall purchase and acquire from
the Sellers, and the Sellers shall sell and transfer to the
Purchasers, all of the Company Equity Interests outstanding
immediately prior to the Closing as set forth in Section 1.1
of the disclosure schedule of the Company dated the date hereof and
delivered herewith (the “Company Disclosure Schedule”)
in exchange for the Acquisition Consideration (as defined in
Section 1.3). The Company Equity Interest owned by AOLA shall
be sold and transferred to Comunicaciones Nextel, and the Company
Equity Interest owned by AOL Quotaholder shall be sold and
transferred to Servicios.
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Immediately following the
Closing, the Purchasers shall own all of the outstanding Company
Equity Interests.
1.2
Closing . The closing of the Acquisition (the
“Closing”), shall take place on April 25, 2005;
provided, however, that in the event the satisfaction or waiver of
conditions set forth in Section 6.2 or Section 6.3 shall
have not occurred by such date, the Closing shall take place on the
first business day thereafter following satisfaction or waiver of
such conditions (the date of Closing, the “Closing
Date”). The Closing shall take place at the offices of
Comunicaciones Nextel de Mexico S.A. de C.V., Blvd. Manuel Avila
Camacho No. 36 Piso 9, Colonia Lomas de Chapultepec, C.P.
11000, Mexico, D.F., unless another place or time is agreed to by
the Purchasers and the Sellers.
1.3
Acquisition Consideration . Upon the terms and subject to
the conditions set forth in this Agreement and upon the
representations, warranties, covenants and agreements of the
Company and the Sellers contained herein, and in exchange for all
of the Company Equity Interests outstanding immediately prior to
the Closing, the Purchasers shall at the Closing pay to the
Sellers, by wire transfer of immediately available funds to an
account or accounts specified by the Sellers to the Purchasers
prior to the Closing, the amount (the “Acquisition
Consideration”) of ONE HUNDRED FIFTY FIVE MILLION EIGHT
HUNDRED EIGHTEEN THOUSAND THREE HUNDRED FIFTY MEXICAN PESOS
(Mxp$155’818,350.00), free and clear of any withholding or
other retention whatsoever, payable to each Seller in the amount
specified in Section 1.3 of the Company Disclosure
Schedule.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY AND SELLERS
The
Company and each Seller hereby jointly and severally represent and
warrant to the Purchasers as follows:
2.1
Organization and Qualification . The Company is a
sociedad de responsabilidad limitada de capital variable
(limited liability company with a variable legal capital) duly
organized and validly existing under the Laws of Mexico, and has
full power and authority to conduct its business as now conducted
and to own, use, license and lease its Assets. The Company is not
required to be, and is not, qualified, licensed or admitted to do
business in any jurisdiction other than Mexico.
2.2
Authority Relative to this Agreement . The Company has full
power and authority to execute and deliver this Agreement, to
perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery by the
Company of this Agreement and the consummation by the Company of
the transactions contemplated hereby, and the performance by the
Company of its obligations hereunder, have been duly and validly
authorized by all necessary action of the partners of the Company,
and no other action on the part of the board of managers or the
partners of the Company is required to authorize the
execution,
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delivery and performance of this
Agreement and the consummation by the Company of the transactions
contemplated hereby. This Agreement has been duly and validly
executed and delivered by the Company and constitutes a legal,
valid and binding obligation of the Company enforceable against the
Company in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar Laws
relating to the enforcement of creditors’ rights generally
and by general principles of equity.
2.3
Equity Interests .
(a) As
of the Closing, the equity of the Company will consist of two
(2) equity interests with a total value of
Mxp$1’583,249,234.00 (the “Company Equity
Interests”), all of which are outstanding. The outstanding
Company Equity Interests are fully paid, have been recorded in
compliance with all applicable Laws, and are owned beneficially and
of record by the Sellers. The Equity Interests are not assessable
by the Company or any creditor of the Company.
(b) Section 2.3(b)
of the Company Disclosure Schedule lists the name and address of
each Seller, and the total value of outstanding Company Equity
Interests owned of record and/or beneficially by each such Seller
as of the execution of this Agreement.
(c) No
Company Equity Interest has been acquired subject to a repurchase
option or buy-back agreement on the part of the Company.
(d) There
are no outstanding Equity Equivalents or agreements, arrangements
or understandings to which the Company is a party (written or oral)
to issue any Company Options. There is no equity plan of the
Company pursuant to which Company Options have been issued or are
available for issuance.
(e) Other
than each Seller’s rights under the Company’s
organizational documents and except for rights provided by Law,
which rights will be waived at or prior to the Closing, there are
no preemptive rights or agreements, arrangements or understandings
to issue preemptive rights with respect to the issuance or sale of
Company Equity Interests created by statute, the certificate of
incorporation or bylaws ( estatutos sociales ) (or similar
organizational documents) of the Company, or any agreement or other
arrangement to which the Company is a party (written or oral) or to
which it is bound and there are no agreements, arrangements or
understandings to which the Company is a party (written or oral)
pursuant to which the Company has the right to elect to satisfy any
Liability by issuing Company Equity Interests or Equity
Equivalents.
(f) The
Company is not a party or subject to any agreement or
understanding, and there is no agreement, arrangement or
understanding between or among any Persons which affects, restricts
or relates to voting, giving of written consents, dividend rights
or transferability with respect to the Company Equity Interests,
including any voting trust agreement or proxy other than any
relating to the Sellers’ directors, stockholders or debt
holders. No debt securities of the Company are outstanding as of
the date hereof.
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2.4
Subsidiaries . The Company does not (and prior to the
Closing will not) hold any equity, membership, partnership, joint
venture or other ownership interest in any Person.
2.5
Managers and Officers . The name of each member of the Board
of Managers and the office or offices with the Company held by each
such member, in each case as of the date hereof, are listed on
Section 2.5 of the Company Disclosure Schedule.
2.6
No Conflicts . The execution and delivery by the Company of
this Agreement does not, and the performance by the Company of its
obligations under this Agreement and the consummation of the
transactions contemplated hereby do not and will not:
(a) conflict
with or result in a violation or breach of any of the terms,
conditions or provisions of the certificate of incorporation or
bylaws ( estatutos sociales ) (or similar organizational
documents) of the Company;
(b) conflict
with or result in a violation or breach of any Law or Order
applicable to the Company or any of the Acquired Assets, except
where such violation or breach would not have a Material Adverse
Effect on the Company; or
(c) require
the Company to obtain any consent, approval or action of, make any
filing with or give any notice to any Person (except for such
consents, approvals, orders, authorizations, registrations,
declarations and filings as may be required under applicable
Mexican state or federal securities laws).
2.7
Company Financial Statements . Section 2.7 of the
Company Disclosure Schedule sets forth (i) the audited
consolidated balance sheets of the Company as of December 31,
2003, 2002, 2001 and 2000; (ii) the related audited
consolidated statements of operations and statements of cash flows
for such fiscal years ended December 31, 2003, 2002 and 2001,
and for the period from inception to December 31, 2000;
(iii) the unaudited consolidated balance sheet of the Company
as of December 31, 2004; and (iv) the related unaudited
consolidated statement of operations and statement of cash flows
for the fiscal year ended December 31, 2004 (collectively, the
“Company Financials”). All of the Company Financials
(i) have been prepared in accordance with GAAP, applied on a
consistent basis, (ii) are complete, (iii) are in
accordance with the Books and Records of the Company and
(iv) present fairly, in all material respects, the financial
condition and operating results of the Company as of the dates and
for the periods indicated therein.
2.8
Partners Registry, Minute Books and Capital Variations Books;
Organizational Documents . Copies of or access to the partners
registry, minute books and capital variations books of the Company,
including evidence of the creation of the Company Equity Interests,
(a) have been provided to the Purchasers or their counsel
prior to the execution of this Agreement, and (b) are complete and
correct in all material respects. Such minute books contain a true
and complete record of all meetings and all written consents in
lieu of meetings that should be recorded in the corresponding
minute books of the Company pursuant to applicable Laws and
the
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Company’s organizational
documents, including all meetings and written consents of the
managers, partners or members and committees of the board of
managers of the Company, as the case may be, from the applicable
date of the incorporation until the date hereof. The Company has,
prior to the execution of this Agreement, made available to the
Purchasers or their counsel true and complete copies of the
certificate of incorporation and bylaws ( estatutos sociales
) (or similar organizational documents) of the Company each as
amended through the date hereof. The Company is not in violation of
any provisions of its certificate of incorporation or bylaws (
estatutos sociales ) (or similar organizational
documents).
2.9
Absence of Changes . Since December 31, 2004 (the
“Company Financials Date”), there has not been any
occurrence or event which, individually or in the aggregate, has
had or is reasonably expected to have any Material Adverse Effect
on the Company.
2.10 No
Undisclosed Liabilities . Except (i) as reflected or
reserved against in the Company Financials (including, without
limitation, the notes thereto), or (ii) as disclosed in
Section 2.10 of the Company Disclosure Schedule, there are no
Liabilities of the Company affecting any of the Acquired Assets
(other than Liabilities incurred in the ordinary course of business
consistent with past practice since the Company Financials Date
which are not the result of willful misconduct ( dolo ) or
breach of contract).
2.11 Taxes
.
(a) The
Company has filed all Tax Returns required to be filed through the
date hereof. All such Tax Returns were true, correct and complete
in all respects. All Taxes owed by the Company (whether or not
shown on any Tax Return) have been paid except for Taxes not yet
due. The Company is not currently the beneficiary of any extension
of time within which to file any Tax Return. No claim has ever been
made in writing by any Governmental or Regulatory Authority in any
jurisdiction where the Company does not file Tax Returns that the
Company is or may be subject to taxation by that jurisdiction.
There are no security interests on any of the Assets of the Company
that arose in connection with any failure (or alleged failure) to
pay any Tax.
(b) There
is no dispute or claim concerning any Tax Liability of the Company
either (i) claimed or raised by any Governmental or Regulatory
Authority in writing or (ii) as to which the Company has
knowledge based upon contact with any agent of any such
Governmental or Regulatory Authority. The Company has made
available to the Purchasers true, correct and complete copies of
all Mexican federal income Tax Returns filed, formal Tax opinions
and examination reports received, and statements of deficiencies
assessed against or agreed to, by or on behalf of the Company since
inception.
(c) The
Company has never waived any statute of limitations in respect of
Taxes or agreed to any extension of time with respect to a Tax
assessment or deficiency, other than an extension of time resulting
from the filing of a supplementary tax return.
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(d) The
Company is not a party to or bound by (nor will it prior to the
Closing become a party to or be bound by) any Tax indemnity, Tax
allocation, Tax sharing or gain recognition agreement (whether
written, unwritten or arising under operation of any applicable Law
as a result of being a member of a group filing consolidated Tax
Returns or other unitary group (other than a group the common
parent of which was the Company or a Seller), or under comparable
Laws of other states or foreign jurisdictions).
(e) The
Company does not have any Liability for the Taxes of any Person,
other than the Company, and other than as a result of being a
member of a group filing consolidated Tax Returns or other unitary
group the common parent of which is AOLA. All moneys required to be
withheld by the Company from its employees for income Taxes and
other payroll Taxes have been collected or withheld, and either
paid to the respective Governmental or Regulatory Authorities, set
aside in accounts for such purpose, or accrued, reserved against
and entered upon the books of the Company. The charges, accruals
and reserves with respect to Taxes on the books of the Company are
adequate or are at least equal to the Tax liability of the
Company.
(f) As
of the date hereof the Company has, and as of the Closing Date the
Company will have, Tax Credits in an amount not less than
Mxp$1,700’000,000, based on current Tax rates and current Tax
law. Documentation evidencing such Tax Credits as of the date
hereof (including evidence of any arrangements between the Company
and any Seller or any Affiliate of any Seller that resulted in
payments or transfers giving rise to any Tax Credits) has been
delivered or made available to the Purchasers. As of the date
hereof, there are no Actions or Proceedings pending or, to the
knowledge of the Sellers and/or the Company, threatened against or
affecting the Company with respect to the determination of such Tax
Credits. Neither the Company nor any Seller has, at any time prior
to the Closing Date, entered into any corporate reorganization,
corporate restructuring or any other transaction with the primary
purpose of improving or increasing the Company’s Tax Credits.
Neither the Company nor any Seller has entered into any agreements,
understandings or arrangements with any Person that would result in
or give to such Person any right of termination, cancellation,
acceleration or modification in or with respect to, or result in
the loss of any material benefit under or with respect to, any of
the Tax Credits. Notwithstanding the representation in this
Section 2.11(f), neither the Company nor the Sellers make any
representation or warranty to the Purchasers regarding the ability
of the Company or any Purchaser to utilize, or the circumstances
under which the Company or any Purchaser will be able to utilize,
the Tax Credits.
2.12 Legal
Proceedings . Section 2.12 of the Company Disclosure
Schedule sets forth all Actions or Proceedings against or
affecting, or, to the knowledge of the Company, threatened against,
the Company or any of its Assets as of the date hereof, except
those which individually or in the aggregate are not material. As
of the Closing, the Company will not have any Liability for Actions
or Proceedings previously settled by the Company. Except as set
forth in Section 2.12 of the Company Disclosure Schedule, as
of the date of this Agreement:
(a) there
are no Actions or Proceedings pending or, to the knowledge of the
Company, threatened against or adversely affecting the Company or
any of the Acquired Assets;
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(b) there
are no facts or circumstances known to the Company that could
reasonably be expected to give rise to any Action or Proceeding
against or adversely affecting the Company or any of its
Assets;
(c) the
Company has not received notice, and does not otherwise have
knowledge of, any Orders outstanding against the Company;
and
(d) to
the knowledge of the Sellers and the Company, no event has occurred
or circumstance exists that may give rise to or serve as a basis
for the commencement of any Action or Proceeding against the
Company.
2.13 Compliance
with Laws and Orders . The Company is not currently in default
or violation in any material respect under any Law or Order
applicable to the Company or any of its Assets.
2.14
Reserved .
2.15 Real
Property . The Company does not own, lease, utilize or operate
any real property.
2.16 Company
Assets . The Company owns only the Assets described on
Section 2.16 of the Company Disclosure Schedule (the
“Acquired Assets”). All such Acquired Assets (including
equipment) are free and clear of all Liens. The Sellers make no
representation or warranty with respect to the condition or
suitability of the Acquired Assets. The Purchasers accept the
Acquired Assets in an “as is, where is”
condition.
2.17
Contracts . The Company is not a party to any Contract
(including any collective bargaining or comparable agreement) other
than the Contracts listed on Section 2.17 of the Company
Disclosure Schedule.
2.18 Customer
Information . The Acquired Assets will include, to the extent
in the Company’s records, the names, billing addresses,
e-mail addresses, tenure of membership and standing of all of the
Company’s customers as of January 31, 2005 (the
“Customer Information”). To the knowledge of the
Company, such information will be correct and complete in all
material respects as of January 31, 2005. The Purchasers
acknowledge that the Company does not own the Customer Information.
After the Closing, the Company and the Purchasers will have only
the limited rights to use the Customer Information as described in
Section 5.13.
2.19 Accounts
Receivable . The Acquired Assets will include the accounts
receivable of the Company that were ten months or more past due as
of January 31, 2005 as contained on the compact disc delivered
herewith at the Closing (the “Accounts Receivable”). To
the Company’s knowledge, such accounts receivable have arisen
from bona fide sales transactions
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and are not subject to any valid
set-off or counterclaim. The Sellers make no representation or
warranty as to collectability of any of such accounts
receivable.
2.20 Other
Negotiations; Brokers; Third-Party Expenses . Neither the
Company nor any investment banker, financial advisor, attorney,
accountant or other Person retained by or acting for or on behalf
of the Company (a) has entered into any Contract that
conflicts with any of the transactions contemplated by this
Agreement or (b) has entered into any Contract or arrangement
with any Person regarding any transaction involving the Company
which is likely to result in the Purchasers, the Company, or any
general partner, limited partner, manager, officer, director,
employee, agent or Affiliate of any of them being subject to any
claim for liability to said Person as a result of entering into
this Agreement or consummating the transactions contemplated
hereby. No broker, investment banker, financial advisor or other
Person is or will be entitled to any broker’s,
finder’s, financial advisor’s or similar fee or
commission in connection with this Agreement and the transactions
contemplated hereby based on arrangements made by or on behalf of
the Company.
2.21 Banks and
Brokerage Accounts . If the Company possesses any bank or
brokerage accounts as of the Closing, the Sellers will provide the
Purchasers at the Closing with (a) a true and complete list of
the names and locations of each related bank, trust company,
securities broker and other financial institution at which such
account is maintained, (b) a true and complete list and
description of each such account, indicating in each case the
account number and the names of the respective officers, employees,
agents or other similar representatives of the Company having
signatory power with respect thereto and (c) a list of each
related Investment Asset, the name of the record and beneficial
owner thereof, the location of the certificates, if any, therefor,
and any stock or bond powers or other authority for transfer
granted with respect thereto.
2.22 Corrupt
Practices . Neither the Company, nor any agent, employee or
other Person acting on behalf of the Company, has, directly or
indirectly, used any corporate funds for unlawful contributions,
gifts, entertainment or other unlawful expenses relating to
political activity, made any unlawful payment to foreign or
domestic government officials or employees or to foreign or
domestic political parties or campaigns from corporate funds,
violated any provision of any applicable Law regarding corrupt
practices, as amended, or made any bribe, rebate, payoff, influence
payment, kickback or other similar unlawful payment.
2.23
Approvals .
(a) There
are no material Approvals of Governmental or Regulatory Authorities
known to the Company relating to the business conducted by the
Company which are required to be given to or obtained by the
Company from any and all Governmental or Regulatory Authorities in
connection with the consummation of the transactions contemplated
by this Agreement.
(b) Section 2.23(b)
of the Company Disclosure Schedule contains a list of all material
Approvals which are required to be given to or obtained by the
Company from any and
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all Persons other than
Governmental or Regulatory Authorities in connection with the
consummation of the transactions contemplated by this
Agreement.
(c) Except
as set forth in Section 2.23(c) of the Company Disclosure
Schedule, the Company has obtained all Approvals from Governmental
or Regulatory Authorities necessary to own the Acquired Assets
prior to Closing. All material Approvals from Governmental or
Regulatory Authorities necessary to own the Acquired Assets prior
to the Closing are set forth in Section 2.23(c) of the Company
Disclosure Schedule.
(d) No
event has occurred or circumstance exists which (with or without
notice or lapse of time) (i) may reasonably be expected to
constitute or result in a violation by the Company of, or a failure
on the part of the Company to comply with, any Approval, or
(ii) may reasonably be expected to give rise to any obligation
on the part of the Company to undertake, or to bear all or any
portion of the cost of, any remedial action of any
nature.
(e) The
Company has not received any notice or other communication (whether
oral or written) from any Governmental or Regulatory Authority or
any other Person regarding (i) any actual, alleged, possible,
or potential violation of, or failure to comply with, any material
Approval, or (ii) any actual, alleged, possible, or potential
material obligation on the part of the Company to undertake, or to
bear all or any portion of the cost of, any remedial action of any
nature. The Company has not been notified of any cancellation of
the terms and requirements of any material Approval.
2.24
Employees . The Company does not have any employees and is
not a party to any collective bargaining agreement or other labor
agreements. The Company does not owe any current, future or
contingent amounts to any former employee by reason of the labor
relationship or its termination by any reason whatsoever, except as
otherwise provided under applicable labor law in Mexico. The
Company does not have any Plans or any current, future or
contingent Liabilities to any Person arising out of any
Plan.
ARTICLE 2A
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Each Seller hereby
represents and warrants to the Purchasers as follows:
2A.1 Ownership
of Company Equity Interests . Such Seller owns of record and
beneficially one outstanding Company Equity Interest set forth
opposite its name on Sections 1.1 and 2.3(b) of the Company
Disclosure Schedule. Such Equity Interest is, and when transferred
by such Seller to the Purchasers pursuant to this Agreement will
be, duly authorized, fully paid, and free and clear of any and all
Liens.
2A.2 Authority
Relative to this Agreement . Such Seller has full power and
authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions
contemplated hereby. This Agreement has been duly and validly
authorized, executed and delivered by such Seller and, assuming the
due authorization, execution and
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delivery hereof by, and
enforceability against, the Purchasers, constitutes a legal, valid
and binding obligation of such Seller enforceable against such
Seller in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar Laws
relating to the enforcement of creditors’ rights generally
and by general principles of equity. No Approvals are required to
be obtained by such Seller from any Governmental or Regulatory
Authorities or any other Person in connection with the consummation
of the transactions contemplated by this Agreement other than any
that have been obtained by the Sellers or the Company prior to
their consummation.
2A.3 No
Conflicts . The execution and delivery by such Seller of this
Agreement does not, and the performance by such Seller of its
obligations under this Agreement and the consummation of the
transactions contemplated hereby do not:
(a) conflict
with or result in a violation or breach of any Law or Order
applicable to such Seller; or
(b)
(i) conflict with or result in a violation or breach of,
(ii) constitute a default (or an event that, with or without
notice or lapse of time or both, would constitute a default) under,
(iii) require such Seller to obtain any consent, approval or
action of, make any filing with or give any notice to any Person as
a result or under the terms of, (iv) result in or give to any
Person any right of termination, cancellation, acceleration or
modification in or with respect to, (v) result in or give to
any Person any additional rights or entitlement to increased,
additional, accelerated or guaranteed payments or performance
under, (vi) result in the creation or imposition of (or the
obligation to create or impose) any Lien upon any of such
Seller’s Assets under or (vii) result in the loss of any
material benefit under, any of the terms, conditions or provisions
of any material Contract to which such Seller is a party or by
which any of such Seller’s Assets is bound.
2A.4
Finder’s Fee . Such Seller has not incurred or become
liable for, nor will incur or become liable for, any broker’s
commission or finder’s fee relating to or in connection with
the transactions contemplated by this Agreement.
2A.5
Agreements . There are no agreements or arrangements not
contained herein or disclosed in the Company Disclosure Schedule,
to which such Seller is a party relating to the business of the
Company or to such Seller’s rights and obligations as an
equity holder of the Company other than the organizational
documents relating to the Company or the Sellers, agreements among
the Sellers and their respective shareholders and
“regional” agreements to which a Seller is a party
relating to the business of the Company and other Seller
Affiliates.
2A.6 No
Fraudulent Conveyance . To the best of each Seller’s
knowledge after due inquiry, the Acquisition Consideration to be
received by each Seller in exchange for its Company Equity Interest
represents reasonably equivalent value for such Company Equity
Interest being sold. The Acquisition Consideration was determined
through arm’s length negotiations between the parties. The
transfer of such Seller’s Company Equity Interest to the
Purchasers will not constitute a transfer of property in connection
with any preexisting indebtedness owed by such
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Seller to either of the
Purchasers. Such Seller is not transferring its Company Equity
Interest to the Purchasers with the actual intent to hinder, delay
or defraud any of its creditors. Such Seller’s transfer of
its Company Equity Interest to the Purchasers constitutes a
practical and reasonable course of action designed to improve the
financial condition of such Seller without impairing the rights of
its creditors.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Purchaser
represents and warrants to the Company and the Sellers, as
follows:
3.1
Organization and Qualification . Such Purchaser is duly
organized and validly existing under the Laws of Mexico. Such
Purchaser has full corporate power and authority to conduct its
business as now conducted and as currently proposed to be conducted
and to own, use and lease its Assets. Such Purchaser is duly
qualified, licensed or admitted to do business and is in good
standing in each jurisdiction in which the ownership, use,
licensing or leasing of its Assets, or the conduct or nature of its
business, makes such qualification, licensing or admission
necessary, except for such failures to be so duly qualified,
licensed or admitted and in good standing that could not reasonably
be expected to have a Material Adverse Effect on such
Purchaser.
3.2
Authority Relative to this Agreement . Such Purchaser has
full corporate power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby. The execution and delivery by
such Purchaser of this Agreement and the consummation by such
Purchaser of the transactions contemplated hereby have been duly
and validly authorized by all necessary corporate action of such
Purchaser, and no other corporate action on the part of such
Purchaser is required to authorize the execution, delivery and
performance of this Agreement and the consummation by such
Purchaser of the transactions contemplated hereby. This Agreement
has been duly and validly executed and delivered by such Purchaser
and, assuming the due authorization, execution and delivery hereof
by the Company and the Sellers, constitutes a legal, valid and
binding obligation of such Purchaser, enforceable against such
Purchaser in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar
Laws relating to the enforcement of creditors’ rights
generally and by general principles of equity.
3.3
No Conflicts . The execution and delivery by such Purchaser
of this Agreement does not, and the performance by such Purchaser
of its obligations under this Agreement and the consummation of the
transactions contemplated hereby do not conflict with or result in
a violation or breach of any Law or Order applicable to such
Purchaser, except where such violation or breach would not have a
Material Adverse Effect on such Purchaser.
3.4
Brokers . No broker, investment banker, financial advisor or
other Person is or will be entitled to any broker’s,
finder’s, financial advisor’s or similar fee or
commission in
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connection with this Agreement
and the transactions contemplated hereby based on arrangements made
by or on behalf of any Purchaser.
3.5
Approvals . There are no material Approvals of Governmental
or Regulatory Authorities known to the Purchasers which are
required to be given to or obtained by the Purchaser from any and
all Governmental or Regulatory Authorities in connection with the
consummation of the transactions contemplated by this
Agreement.
3.6
Financial Condition of AOLA and its Subsidiaries . Sellers
and the Company make no representation or warranty as to the
financial condition of AOLA and its Subsidiaries except as provided
in this Agreement, and such Purchaser acknowledges the disclosures
concerning the financial condition of AOLA and its Subsidiaries
contained in AOLA’s Annual Report on Form 10-K for the fiscal
year ended December 31, 2004 filed with the Securities and
Exchange Commission on March 31, 2005.
ARTICLE 4
CONDUCT PRIOR TO THE CLOSING
4.1
Conduct of Business of the Company . During the period from
the date hereof through the Closing Date, the Sellers shall cause
the Company to engage only in those activities (a) that
constitute operations in the ordinary course of business or
(b) that are otherwise permitted or contemplated by this
Agreement. Neither the Company nor any Seller shall, without the
prior written consent of the Purchasers, take or agree in writing
or otherwise to take, any action that would prevent the Company or
any Seller from performing, or cause the Company or any Seller not
to perform, its agreements and covenants hereunder or knowingly
cause any condition to the closing obligations of the Purchasers in
Section 6.1 or Section 6.3 not to be
satisfied.
ARTICLE 5
ADDITIONAL AGREEMENTS
5.1
Access to Information . Between the date of this Agreement
and the earlier of the Closing or the termination of this
Agreement, upon reasonable notice, the Company shall (i) give
the Purchasers and its officers, appropriate employees,
accountants, and counsel full access, upon reasonable prior notice
during normal business hours, to all Books and Records of the
Company, whether located on the premises of the Company or at
another location; and (ii) furnish the Purchasers such
financial data and other information with respect to the Acquired
Assets as the Purchasers from time to time may reasonably request,
including financial statements and schedules; provided, however,
that no investigation made prior to the date of this Agreement or
made pursuant to this Section 5.1 shall affect or be deemed to
modify any representation or warranty made by the Company
herein.
5.2
Confidentiality . Each party (the “Receiving
Party”) acknowledges that the Confidential Information of the
other party (the “Disclosing Party”) constitutes
valuable assets
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and trade secrets of the
Disclosing Party and its Affiliates, has not been published and is
protected by civil and criminal law, and that the use and
disclosure thereof must be carefully and continuously controlled.
Accordingly, during the term of this Agreement and at all times
thereafter, Receiving Party, agrees that it will: (i) use the
Confidential Information only for the purpose(s) permitted under
this Agreement; (ii) hold the Confidential Information in
strict confidence and will use commercially reasonable best efforts
to protect the Confidential Information and/or Proprietary
Information from any use, reproduction, publication, disclosure, or
distribution except as specifically authorized by this Agreement;
(iii) not sell, lease, assign, transfer, distribute, license,
disclose or otherwise make available any Confidential Information
of Disclosing Party to third parties, except as authorized by this
Agreement; (iv) honor, reproduce and include the copyright
notice, trademark notice, and other proprietary notices (in the
form specified by the Disclosing Party) on all copies, in any form,
including partial copies and excerpts, of the Confidential
Information. Notwithstanding the foregoing, the Receiving Party may
disclose Confidential Information pursuant to a requirement of a
Governmental or Regulatory Authority or in connection with judicial
proceedings between the parties, provided , however ,
that prior to any such disclosure, the Receiving Party shall have
given to the Disclosing Party prior notice of any proposed
disclosure and a reasonable opportunity to interpose an objection
or obtain a protective order, unless such notice is forbidden by
law. In addition, each Seller may disclose the terms and
conditions, and provide a copy, of this Agreement to potential
purchasers of the business of such Seller or one or more of its
Subsidiaries provided such potential purchasers have executed an
agreement not to disclose the information provided except as
necessary to evaluate and consummate a purchase of the business of
such Seller or one or more of its Subsidiaries. Upon termination of
this Agreement, the Receiving Party shall promptly return to the
Disclosing Party all Confidential Information of the Disclosing
Party or shall promptly deliver a certificate of the Receiving
Party certifying that all such Confidential Information has been
destroyed. The Receiving Party’s obligations with respect to
the Confidential Information shall survive for three (3) years
following the date of termination of this Agreement.
5.3
Expenses . All fees and expenses incurred by the Company
prior to the Closing and all fees and expenses incurred by any of
the Sellers in connection with the negotiation and effectuation of
the terms and conditions of this Agreement and the transactions
contemplated hereby, including all legal, accounting, financial
advisory, consulting, success and all other fees and expenses of
third parties (the “Company Expenses”) shall be the
joint and several obligation of the Sellers (and not of the
Company). All fees and expenses incurred by the Company after the
Closing, if not paid by the Company, and the Purchasers in
connection with the negotiation and effectuation of the terms and
conditions of this Agreement and the transactions contemplated
hereby, including all legal, accounting, financial advisory,
consulting and all other fees and expenses of third parties, shall
be the joint and several obligation of the Purchasers.
5.4
Public Disclosure . Unless otherwise required by applicable
Law, no party to this Agreement shall issue any press release or
announcement relating to the subject matter of this Agreement
without the prior written approval of the other parties hereto;
provided, however, that (i) the parties hereto may make any
public disclosure they believe, in good faith, is required under
the rules and regulations of the Securities and Exchange Commission
and Form 8-K
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promulgated pursuant thereto, and
(ii) if the Closing occurs as provided herein on or prior to
April 28, 2005, the Purchasers shall be permitted to publicly
announce the completion of the Acquisition and the terms thereof in
conjunction with the quarterly earnings announcement of NII
Holdings, Inc. on or about April 29, 2005.
5.5
Notices and Approvals . The Company, the Sellers and the
Purchasers will use all reasonable efforts to obtain all Approvals
from Governmental or Regulatory Authorities or in connection with
the termination of any of the Contracts or other agreements as may
be required in connection with the transactions contemplated
hereby, and each party shall provide the other with such assistance
and information as is reasonably required to obtain such
Approvals.
5.6
Notification of Certain Matters . The Company, each Seller,
or each Purchaser, as applicable, shall give prompt notice to the
other parties to this Agreement of (a) the occurrence or
non-occurrence of any event, the occurrence or non-occurrence of
which is likely to cause any representation or warranty of such
notifying party contained in this Agreement to be untrue or
inaccurate in any material respect at or prior to the Closing and
(b) any failure of such notifying party to comply in any
material respect with or satisfy any covenant, condition or
agreement to be complied with or satisfied by it hereunder;
provided, however, that the delivery of any notice pursuant to this
Section 5.6 shall not limit or otherwise affect any remedies
available to the parties to this Agreement.
5.7
Further Assurances; Cooperation . Each party hereto, at the
request of the other party hereto, shall execute and deliver such
other instruments and do and perform such other acts and things as
may be necessary or desirable for effecting completely the
consummation of this Agreement and the transactions contemplated
hereby. Each party agrees to use reasonable efforts to cause the
conditions set forth in Article 6 to be satisfied, where the
satisfaction of such conditions depends on action or forbearance
from action by such party.
5.8
Resignation of Managers and Officers. The Company and the
Sellers shall obtain and deliver to the Purchasers at the Closing
the resignation of each board member and officer of the Company
listed in Section 2.5 of the Company Disclosure Schedule from
their positions as officers or members of the board of managers of
the Company.
5.9
Audited Financial Statements; Company’s Auditors .
Between the date hereof and the Closing, the Company shall cause
its management and shall use all reasonable efforts to cause its
independent accountants to facilitate on a timely basis the review
of any Company audit or review work papers, including the
examination of selected interim financial statements and data as
may be reasonably requested by the Purchasers.
5.10 Delivery
of Partners Registry, Minute Books and Capital Variations Books of
the Company . The Company shall deliver its partners
registry,
