EXHIBIT 10.8
ACQUISITION AGREEMENT
by and between
EQUIFAX PAYMENT SERVICES, INC.
EQUIFAX DO BRASIL HOLDINGS LTDA.
SOCMA AMERICANA S.A.
SIDECO DO BRASIL S.A.
and
UNNISA-SOLUCOES EM MEIOS DE PAGAMENTO LTDA.
Effective as of May 24, 2001
Kilpatrick Stockton LLP
1100 Peachtree Street
Atlanta, Georgia 30309
SCHEDULE OF EXHIBITS
--------------------
Exhibit A Certain Accounts Payable
Exhibit B Lawsuit Dismissal
Exhibit C Arbitration Dismissal
Exhibit D Capitalization of Seller
Exhibit E-1 Tozzini Freire Teixera e Silva Legal Opinion
Exhibit E-2 Socma Group Legal Department Legal Opinion
Exhibit F-1 Kilpatrick Stockton LLP Legal Opinion
Exhibit F-2 Mundie e Advogados Legal Opinion
ACQUISITION AGREEMENT
THIS AGREEMENT is made and entered into effective as of the 24th day of
May, 2001, by and between:
(1) EQUIFAX PAYMENT SERVICES, INC., a corporation organized and
existing under the laws of the State of Delaware, United States of America,
whose principal place of business is located at 11601 Roosevelt Boulevard, St.
Petersburg, Florida 33716, United States of America ("EFX");
---
(2) EQUIFAX DO BRASIL HOLDINGS LTDA., a Brazilian limited liability
company ("sociedade por quotas de responsabilidade limitada"), whose head office
is located at Av. Presidente Juscelino Kubitschek, n.(Degree) 50, 17th Floor,
suite 172, room 4, in the City of Sao Paulo, State of Sao Paulo, Federal
Taxpayers' No. 02.677.368/0001-14, with its Articles of Association recorded at
the Commercial Registry at the State of Sao Paulo, under NIRE No.
35,215,207,148, on July 20, 1998 ("Holdings", and together with EFX,
--------
collectively referred to as "Equifax");
-------
(3) SOCMA AMERICANA S.A., an Argentine corporation ("sociedad
anonima"), whose head office is located at Av. Eduardo Madero 940, Piso 15,
Capital Federal Registro No. 7034, Libro 100, tomo "A" de Sociedades Anonimas -
Registro Publico de Comercio de la Capital Federal de la Republica Argentina
("Socma");
-----
(4) SIDECO DO BRASIL S.A., a Brazilian corporation ("sociedade
anonima"), whose head office is located in City and State of Sao Paulo, at Rua
Pedroso Alvarenga, 1284, 7th floor, enrolled at Federal Taxpayers' Registry
under N(Degree) 00.280.334/0001-66 (the "Seller", and together with Socma,
------
collectively referred to as "Socma Group", and the Seller or Socma may also be
-----------
referred to individually as a "member of the Socma Group"); and
(4) UNNISA-SOLUCOES EM MEIOS DE PAGAMENTO LTDA., a Brazilian limited
liability company ("sociedade por quotas de responsabilidade limitada"), whose
head office is located in the City and State of Sao Paulo, at Av. Maria Coelho
Aguiar 215, Bloco D - 4th Floor, enrolled at the Federal Taxpayers' Registry
under No. 69.313.674/0001-42 ("Unnisa").
------
BACKGROUND STATEMENT
WHEREAS, with effect from October, 2000, Sideco Americana S.A., an
Argentine corporation ("sociedad anonima") ("SFH") became the holder of all the
---
quotas of Unnisa then held by Socma as a result of a reorganization involving
Socma and SFH;
WHEREAS, prior to the date hereof SFH transferred all of the quotas of
Unnisa then held by it, together with all of its rights and obligations to
subscribe for additional quotas of Unnisa (pursuant to the 23rd Amendment to the
Articles of Association of Unnisa), which in the aggregate equals 20.335% of the
outstanding quotas(collectively, the "Quotas") of Unnisa, to Sanwer
------
International S.A., a Uruguayan company ("Sanwer"); and
------
WHEREAS, immediately prior to the Closing Date Sanwer shall sell and
transfer all of the Quotas to the Seller, for an aggregate purchase price of R$
64,200,000.00; and
WHEREAS, Socma, Holdings and others are all parties to that certain
Quotaholders Agreement entered into on or about June 28, 1999 (the "Quotaholders
------------
Agreement"), as modified by that certain Modification of Quotaholders Agreement
- ---------
entered into on or about April 26, 2001 (the "Modification"); and
------------
WHEREAS, the Seller desires to sell to Holdings or its Designee (this
term and other capitalized terms used in this Agreement being defined in either
Paragraph 14.1 of this Agreement or in those Paragraphs of this Agreement
identified in Paragraph 14.2) on the Closing Date, all of the Quotas, and
Equifax or its Designee desires to purchase and take from the Seller the Quotas
(such sale and purchase being referred to herein as the "Transaction");
-----------
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements in this Agreement contained, and other good and
valuable consideration, the receipt and sufficiency of which are acknowledged,
the Parties agree as follows:
1. THE ACQUISITION
1.1 Acquisition and Sale of the Seller's Interest
(a) Subject to the terms contained in this Agreement, on the Closing
Date the Seller shall sell, transfer and assign to Equifax or, if so elected by
Equifax, to any Designee, the Quotas for an aggregate purchase price of R$
64,200,000.00 (the "Acquisition Price"), all of which Quotas shall be free and
-----------------
clear of any and all Liens. The Acquisition Price shall be paid as described in
Paragraph 1.1(c) below.
(b) Against payment of the Acquisition Price, the Parties shall
execute the proper amendment to the Articles of Association of Unnisa in order
to reflect the transfer of the Quotas to Equifax or its Designee.
(c) By its signature to this Agreement, the Seller authorizes and
directs the Acquisition Price (R$ 62,111,614.00, being net of the amounts
referred to in Paragraph 1.1(d) below) to be paid at the Closing in cash in
Brazilian reais to Seller. Each of Socma and Seller covenants and agrees with
Equifax that any check(s) issued in payment of the Acquisition Price shall be
deposited in a bank in Brazil promptly upon its receipt.
(d) Unnisa acknowledges and agrees that, simultaneously with the
Closing, EV1 has paid (i) R$ 1,998,386.00 in cash to Unnisa in full and final
satisfaction of the Socma Group's liability for previously subscribed quotas
(pursuant to the 23rd Amendment to the Articles of Association of Unnisa), and
(ii) R$ 90,000.00 in cash to Unnisa in full and final satisfaction of the Socma
Group's liability for previously incurred accounts receivable as reflected on
Exhibit A. Unnisa acknowledges and agrees that the Socma Group shall have no
further liability in respect of either of the foregoing obligations.
(e) The Seller will be solely responsible for the payment of all
Taxes, including, without limitation, all transfer, sales, stamp duties, use,
excise, value added and similar taxes imposed by any Government in connection
with the transfers of the Quotas by Socma (as described in the Background
Statement of this Agreement) and the sale of the Quotas to Equifax or its
Designee.
2
2. TRANSACTION STRUCTURE
2.1 Socma Group's Obligations. Immediately prior to the Closing Date,
Seller shall have purchased and acquired from Sanwer all of the Quotas for an
aggregate purchase price of R$ 64,200,000.
3. CLOSING
3.1 Closing. Subject to the conditions contained in Articles 8 and 9
having been satisfied or waived in writing in accordance with the terms of this
Agreement, the consummation of the transactions contemplated in this Agreement
(the "Closing") will take place at the offices of Mundie e Advogados, located at
-------
Av. Presidente Juscelino Kubitschek, n.(Degree)50, 17th floor, Sao Paulo,
Brasil, commencing at 9:00 a.m., local time, on May 24, 2001, or any other date
as may be mutually acceptable to the Parties (the date of the Closing being
referred to in this Agreement as the "Closing Date"); provided, however, that
------------
the Transaction shall for all purposes be effective as of 12:01 a.m., Sao Paulo
time, on May 24, 2001. To facilitate the Closing, the Parties will meet at a
pre-closing conference at the offices of Mundie e Advogados, commencing at 9:00
a.m., local time, on the first Business Day immediately preceding the Closing
Date, with the intention to finalize the Closing matters contemplated in this
Agreement in a timely manner so as to cause the Closing to occur on the Closing
Date.
3.2 Cooperation and Further Assurances. Between the date of this
Agreement and Closing, each Party shall take, and shall cause all of its
relevant Affiliates to take, any and all other and further actions required,
necessary or convenient to carry out the intent and purpose of the Transaction
and this Agreement. At Equifax's reasonable request, whether on or after the
date of this Agreement, and without the payment of any additional monies, each
member of the Socma Group will, at their sole expense and without contribution
by or Liability to Equifax or Unnisa, execute and deliver any and all further
documents and instruments of conveyance, assignment, and transfer and will take
any and all further reasonable actions as may be necessary, in the reasonable
opinion of Equifax, to transfer and convey to Equifax all right, title and
interest in and to the Quotas, free and clear of any and all Liens or as may
otherwise be necessary or desirable to carry out the intent of this Agreement.
4. ADDITIONAL COVENANTS
4.1 Cooperation. The Parties will cooperate fully with each other and
with their respective Representatives in connection with any steps required to
be taken as part of their respective obligations under this Agreement, and all
Parties will use their best efforts to consummate the transactions contemplated
by this Agreement and to fulfill their obligations under this Agreement,
including without limitation, causing to be fulfilled at the earliest practical
date the conditions precedent to the obligations of the Parties to consummate
the transactions contemplated by this Agreement. Without the prior written
consent of the other Parties, no Party may take any intentional actions, or omit
to take any actions, that would cause the conditions precedent to the
obligations of the Parties not to be fulfilled, including, without limitation,
taking or causing to be taken any action which would cause the representations
and warranties made by a Party in this Agreement not to be true, correct and
complete as of the Closing. For a period of three (3) years following the
Closing, Unnisa and its Affiliates, on the one hand, and the Seller and Socma,
on the other hand, agree to use their reasonable efforts to cooperate with the
other and act as an advisor to the other in furtherance
3
and promotion of their respective businesses, it being expressly understood and
agreed that no fees or other compensation shall be payable in respect of such
cooperation and advisory services unless the relevant Persons shall have
expressly agreed in writing to the payment of any such fees or other
compensation.
4.2 Expenses. The Parties will bear their own legal, accounting,
broker, intermediary and other fees and expenses related to the transactions
contemplated by this Agreement.
4.3 Update of Information. All documents, agreements, instruments,
statements, copies and other writings furnished to or for the benefit of
Equifax, Socma Group or any of their Representatives pursuant to this Agreement
are and will be true, correct and complete as of the date furnished, and any and
all amendments and supplements to the documents, agreements, instruments,
statements and other writings furnished to or for the benefit of Equifax, Socma
Group or any of their Representatives pursuant to this Agreement have been or
will be delivered to Equifax, Socma Group and their Representatives in a timely
and expeditious manner prior to the Closing. At all times prior to and including
the Closing Date, Socma Group and Equifax will promptly provide one another with
written notification of any event, occurrence or other information of any kind
whatsoever which affects, or may affect, the continued truth, correctness or
completeness of any representation, warranty, covenant or agreement made in this
Agreement by a Party or any document, agreement, instrument, certificate or
writing furnished to or for the benefit of a Party by any other Party pursuant
to or in connection with this Agreement, and each written notification will
specifically identify any and all of the representations, warranties, covenants
and agreements affected by the fact, event, occurrence or information that
necessitated the giving of the notice. No notification or other disclosure will
be deemed to amend or supplement this Agreement or any representation, warranty,
covenant, agreement or indemnity or any other document, agreement, instrument,
certificate or writing furnished to or for the benefit of any Party pursuant to
or in connection with this Agreement.
4.4 Brokers. Each member of the Socma Group represents and warrants
to Equifax that no broker or finder has acted on their behalf in connection with
this Agreement or the transactions contemplated in this Agreement, and Socma
Group agrees to indemnify Equifax and hold it harmless from and against any and
all claims or demands for commissions or other compensation by any broker,
finder or similar agent claiming to have been employed by or on behalf of it.
Equifax represents and warrants that no broker or finder has acted on its behalf
or on behalf of Unnisa in connection with this Agreement or the transactions
contemplated in this Agreement and agrees to indemnify Socma Group and hold them
harmless from and against any and all claims or demands for commissions or other
compensation by any broker, finder or similar agent claiming to have been
employed by or on behalf of Equifax.
4.5 Publicity. Except to the extent required by applicable Law or
listing agreement with any securities exchange, all press releases and other
public announcements respecting the subject matter of this Agreement will be
made only with the mutual agreement of Socma and Equifax, which agreement will
not be unreasonably withheld, delayed or conditioned. Prior to submitting any
information to third parties as required by applicable Law or listing agreement
with any securities exchange, each Party will provide the other
4
Parties with a reasonable opportunity to review and comment on the terms upon
which such information will be disclosed.
4.6 Certain Governmental Filings. The Parties will make, or cause to
be made, all filings and submissions required to be made to any Government in
connection with the transactions contemplated by or resulting from this
Agreement, if any. Each of the Parties will furnish to the other Parties any and
all necessary information and reasonable assistance as another Party may
reasonably request in connection with its preparation of necessary filings or
submissions to any Government. Prior to filing any material application,
registration, statement or other document with the applicable governmental
authority, each Party will provide the other Parties with a reasonable
opportunity to review and comment on each such application, registration,
statement or other document. Each of the Parties hereby covenants and agrees
that it will not take a position on any tax return or report or any other
governmental filing or report, or take a position in any Forum or before any
Government different from or in any way inconsistent with those taken in, or in
connection with, this Agreement.
4.7 Dismissal of Litigation.
(a) Simultaneous with the Closing, the Parties shall file, through
their respective counsel, with the United States District Court, Northern
District of Georgia, Atlanta Division, fully executed original documents, in the
same form as Exhibit B attached hereto, to effectuate the dismissal of Equifax
Inc. and Equifax do Brasil Holdings Ltda. v. Andrade Gutierrez Telecomunicacoes
Ltda. and Socma Americana S.A., Civil Action File No. 1:01-CV-0837.
(b) Simultaneous with the Closing, the Parties shall file, through
their respective counsel, with the American Arbitration Association, New York,
New York, U.S.A., fully executed original documents, in the same form as Exhibit
C attached hereto, to effectuate the dismissal of In the Matter of Andrade
Gutierrez Telecomunicacoes Ltda. and Socma Americana S.A. v. Equifax Inc. and
Equifax do Brasil Holdings Ltda., Arbitration No. 50 T 181 00066 01.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS RELATING TO UNNISA
Having regard for the fact that (i) the Socma Group is a minority
quotaholder of Unnisa, and (ii) the Socma Group has only representative
participating on the board of Unnisa, each member of the Socma Group, jointly
and severally, represents and warrants to Equifax, and covenants and agrees, as
of the date of this Agreement and again as of the Closing Date, other than as
reflected in the Relevant Records, to the Knowledge of each member of the Socma
Group:
5.1 No Violation; Compliance with Laws. Unnisa has not failed to
comply with, nor has it received any notification of any present or past failure
by Unnisa to comply with, any Order or Laws or that its operations have not been
conducted in accordance with all applicable Laws.
5
5.2 Liabilities.
(a) Unnisa has no Liability except (i) those reflected in Unnisa's
financial statements, (ii) those accounts payable incurred in the ordinary and
regular course of business, and (iii) those incurred in the ordinary and regular
course of business consistent with past practices.
(b) Unnisa is not a party to any contract or commitment to guarantee
the payment or performance of any Liability of any other Person , or pursuant to
which Unnisa, or its respective assets, properties, business or revenue, is or
may become liable for the indebtedness or other obligations of any other Person.
5.3 Intellectual Property Rights. Unnisa has not received any notice,
complaint, threat or claim alleging infringement of, any patent, trademark,
trade name, copyright, industrial design, trade secret or any other intellectual
property or proprietary right of any Person, nor has the conduct by Unnisa of
its business or its use of the Proprietary Rights infringed any patent,
trademark, trade name, copyright, industrial design, trade secret or any other
intellectual property or proprietary right of any Person which would result in a
material adverse effect on the business, prospects or assets of Unnisa.
5.4 Litigation; Contingencies. There are no Actions existing or
threatened against, by or affecting Unnisa, the property, business, revenues or
assets of Unnisa, in any Forum, the eventual outcome of which might have a
material adverse effect on Unnisa after the date of this Agreement.
5.5 Absence of Certain Business Practices. Neither Socma Group nor
any of their respective officers, directors, employees, agents, nor any other
Person acting on any of their behalf has, directly or indirectly, within the
past five years given or agreed to give any gift or similar benefit to any
Government employee or other Person who is or may be in a position to help or
hinder the business of Unnisa (or to assist Unnisa in connection with any actual
or proposed transaction).
5.6 No Agreement in Anticipation of Sale. The consummation of the
transactions contemplated by this Agreement will not entitle any employee of
Unnisa to severance pay nor will it accelerate the time of payment, vesting or
increase the amount of any compensation or benefits due to any employee of
Unnisa.
5.7 Customers and Suppliers. No material supplier or customer of
Unnisa intends to discontinue or substantially diminish or change its
relationship with Unnisa or the terms of its relationship with Unnisa; no
material supplier of Unnisa intends to increase prices or charges for goods or
services presently supplied; and no material supplier of Unnisa is likely to
become unable to continue its relationship with Unnisa, or supply the goods or
services which it presently supplies Unnisa, without significant change in the
terms and conditions to any relevant relationship or supply arrangement.
5.8 Full Disclosure. No representation, warranty, covenant or
agreement of or relating to Unnisa contained in this Agreement or in any other
written statement or certificate delivered by any member of the Socma Group,
pursuant to or in connection with this Agreement or in connection with the
transactions contemplated in this Agreement contains or
6
will contain any untrue statement of a material fact or omits or will omit to
state a material fact necessary to make the statements contained in this
Agreement or in any other written statement or certificate delivered by any
member of the Socma Group, pursuant to this Agreement not misleading. Other than
for information that is generally known to the public or in respect of which
there has been public disclosure or in respect of which Equifax or its
Affiliates has Knowledge, there is no fact known to any member of the Socma
Group which materially and adversely affects, or in the future may materially
and adversely affect, the business, operations, cash flows, affairs, prospects,
properties or assets, or the condition, financial or otherwise, of Unnisa or the
businesses to be conducted by Unnisa on and after the Closing Date, or its
operations, cash flows, affairs, prospects, properties or assets.
6. REPRESENTATIONS AND WARRANTIES RELATING TO THE SOCMA GROUP
Each member of the Socma Group, jointly and severally, represents,
warrants and covenants to Equifax, as of the date hereof and again as of the
Closing Date, as follows:
6.1 Existence.
(i) Socma: (a) is a corporation ("sociedad anonima"), duly organized
and registered and validly existing under the laws of Argentina, and (b) is
entitled to own or lease its assets and properties and to carry on its business
as and in the places where its business is conducted and its assets and
properties are owned or leased.
(ii) Seller: (a) is a is a corporation ("sociedade anonima"), duly
organized and registered and validly existing under the laws of Brazil, and (b)
is entitled to own or lease its assets and properties and to carry on its
business as and in the places where its business is conducted and its assets and
properties are owned or leased.
6.2 Capitalization; Ownership of Equity. The capital of each member
of the Socma Group (other than Socma) and of each of SFH and Sanwer is owned
beneficially and legally as set forth in Exhibit D to this Agreement.
6.3 Authority; Inconsistent Obligations.
(a) Each member of the Socma Group has the full right, power and
authority to execute and deliver and to perform and comply with this Agreement.
All proceedings and actions required to be taken by any member of the Socma
Group to authorize the execution, delivery and performance of this Agreement
have been taken. This Agreement has been duly and validly executed and delivered
by each member of the Socma Group by its duly authorized officers or
representatives. This Agreement constitutes the valid and legally binding
obligation, subject to general equity principles, of each member of the Socma
Group, enforceable in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws affecting the
rights of creditors generally.
(b) Neither the execution and delivery of this Agreement by any
member of the Socma Group, nor the consummation of the transactions contemplated
by this Agreement, will (i) result in a violation of the Articles of
Association, Articles of Incorporation or By-Laws of any member of the Socma
Group, or on the date of this Agreement or on the Closing
7
Date any applicable material Law or Order, (ii) violate any Order or Law
applicable to any member of the Socma Group, or (iii) result in a breach of,
conflict with or default under, any term or provision of any indenture, note,
mortgage, bond, security agreement, loan agreement, guaranty, pledge, or other
instrument, contract, agreement or commitment to which any member of the Socma
Group is a party or by which any of its assets, properties, or businesses is
subject or bound; nor will these actions result in (w) the creation of any Lien
on the Quotas, or any of the assets, properties, businesses, revenues or profits
of any member of the Socma Group, (x) the acceleration or creation of any
obligation of any member of the Socma Group, (y) the forfeiture of any material
right or privilege of any member of the Socma Group, or (z) the forfeiture of
any material right or privilege of any member of the Socma Group that may affect
its ability to perform under this Agreement.
6.4 Ownership of Quotas. Seller owns the Quotas free and clear of any
and all Liens.
6.5 No Violation; Compliance with Laws. No member of the Socma Group
is in default under or in violation of (a) its Articles of Association, Articles
of Incorporation or By-Laws, as appropriate, or (b) any material applicable
Order or Law, and each member of the Socma Group has complied with all
applicable Laws, where the failure to so comply would have a material adverse
effect on Socma and its consolidated subsidiaries. No member of the Socma Group
has received any notification of any asserted present or past failure by any
member of the Socma Group to comply with any material applicable Order or Laws,
where the asserted failure if determined adversely to any member of the Socma
Group would have a material adverse effect on Socma and its consolidated
subsidiaries.
6.6 Consents. The execution and delivery by each member of the Socma
Group of this Agreement, the consummation of the transactions contemplated in
this Agreement, and the performance by each member of the Socma Group under this
Agreement, does not (a) require the consent, approval or action of, or any
filing with or notice to, any Government or other Person, other than for a
notification filing to be made with the Brazilian anti-trust authorities within
fifteen (15) days after the date of this Agreement, (b) require the consent or
approval of the shareholders of any member of the Socma Group (except for those
previously obtained), or (c) impose any other term, condition or restriction on
Socma Group pursuant to any applicable Order or Law.
6.7 Litigation; Contingencies. There are no Actions existing or, to
the knowledge of any member of the Socma Group, threatened against, by or
affecting any member of the Socma Group, the property, business, revenues or
assets of any member of the Socma Group, in any Forum, nor is there any basis
for any Actions, nor do there exist any other contingent liabilities, the
eventual outcome of which might have a material adverse effect on Socma and its
consolidated subsidiaries after the date of this Agreement, or which would
prevent or impede the transactions contemplated by this Agreement. No member of
the Socma Group has been charged with, or is under investigation with respect
to, any material charge concerning any violation of any provision of any Law.
There are no material unsatisfied judgments against any member of the Socma
Group or any of its predecessors or any other material Order to which any member
of the Socma Group, or any of material assets or properties of any member of the
Socma Group, are subject.
8
6.8 Full Disclosure. No representation, warranty, covenant or
agreement of or relating to any member of the Socma Group contained in this
Agreement or in any other written statement or certificate delivered by any
member of the Socma Group, pursuant to or in connection with this Agreement or
in connection with the transactions contemplated in this Agreement, contains or
will contain any untrue statement of a material fact or omits or will omit to
state a material fact necessary to make the statements contained in this
Agreement or in any other written statement or certificate delivered by any of
member of the Socma Group, pursuant to this Agreement, not misleading.
7. REPRESENTATIONS AND WARRANTIES OF EQUIFAX
Each of EFX and Holdings, jointly and severally, represents and
warrants to, and covenants and agrees with, each member of the Socma Group, as
of the date hereof and again as of the Closing Date, as follows:
7.1 Organization.
(a) EFX: (i) is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, U.S.A., and (ii) is
entitled to own or lease its assets and properties and to carry on its business
as and in places where the business is conducted and the properties are owned or
leased.
(b) Holdings: (i) is a limited liability company ("sociedade por
quotas de responsabilidade limitada") duly organized and registered and validly
existing under the laws of Brazil, and (ii) is entitled to own or lease its
assets and properties and to carry on its business as and in places where the
business is conducted and its assets and properties are owned or leased.
7.2 Authority; No Inconsistent Agreements. Each of EFX and Holdings
has full power and authority to make, execute and perform this Agreement and the
transactions contemplated by this Agreement. This Agreement and all transactions
required under this Agreement to be performed by Equifax have been duly and
validly authorized and approved by all necessary corporate action on its part.
This Agreement has been duly and validly executed and delivered on behalf of
each of EFX and Holdings by its duly authorized officers, and this Agreement
constitutes the valid and legally binding obligation of each of them,
enforceable, subject to general equity principles, in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of creditors generally.
Neither the execution and delivery of this Agreement, nor the consummation of
the transactions contemplated by this Agreement, will constitute a violation or
breach of the articles of incorporation or by-laws or other organizational
document of either of them and will (i) violate any Order or Law applicable to
either EFX or Holdings, or (iii) result in a breach of, conflict with or default
under, any term or provision of any indenture, note, mortgage, bond, security
agreement, loan agreement, guaranty, pledge, or other instrument, contract,
agreement or commitment to which either EFX or Holdings is a party or by which
any of them or any of their respective assets, properties, or businesses are
subject or bound; nor will these actions result in the forfeiture of any
material right or privilege of either EFX or Holdings that may affect its
ability to perform this Agreement.
9
7.3 Consents. The execution and delivery by each of EFX and Holdings
of this Agreement, the consummation of the transactions contemplated in this
Agreement and the performance by each of EFX and Holdings under this Agreement
do not: (a) require the consent, approval or action or, or any filing with or
notice to, any Government or other person, other than for a notification filing
to be made with the Brazilian anti-trust authorities within fifteen (15) days
after the date of this Agreement, or (b) require the consent or approval of the
EFX shareholders or the Holdings quotaholders, except for those previously
obtained.
7.4 Litigation; Contingencies. There are no Actions existing or, to
the knowledge of either EFX or Holding, threatened against, by or affecting EFX
or Holdings, which might have a material adverse effect on EFX or Holdings and
its consolidated subsidiaries after the date of this Agreement, or which would
prevent or impede the transactions contemplated by this Agreement. None of EFX
or Holdings has been charged with, or is under investigation with respect to,
any material charge concerning any violation of any provision of any Law.
7.5. Full Disclosure. No representation, warranty, covenant or
agreement of or relating to EFX or Holdings contained in this Agreement or in
any other written statement or certificate delivered by either EFX or Holdings,
pursuant to or in connection with this Agreement or in connection with the
transactions contemplated in this Agreement, contains or will contain any untrue
statement of a material fact or omits or will omit to state a material fact
necessary to make the statements contained in this Agreement or in any other
written statement or certificate delivered by either EFX or Holdings, pursuant
to this Agreement, not misleading.
8. CONDITIONS TO OBLIGATIONS OF EQUIFAX
The obligations of Equifax under this Agreement are subject to the
fulfillment and satisfaction of each and every one of the following conditions
on or prior to the Closing, any or all of which may be waived in writing in
whole or in part by Equifax:
8.1 Proceedings and Documents Satisfactory. All proceedings taken in
connection with the consummation of the transactions contemplated in this
Agreement and all documents and papers reasonably required in connection with
this Agreement, will be reasonably satisfactory to Equifax and its counsel, and
Equifax and its counsel will have timely received copies of the relevant
documents and papers, all in form and substance satisfactory to Equifax and its
counsel, as reasonably requested by Equifax or its counsel, provided that such
request is essential for the completion of the transactions contemplated in this
Agreement.
8.2 Representations and Warranties. The representations and
warranties contained in this Agreement and in any certificate, instrument,
schedule, agreement or other writing delivered by or on behalf of, or in respect
of, the Seller or any other member of the Socma Group in connection with the
transactions contemplated by this Agreement will be true and correct as of the
date when made and will be deemed to be made again at and as of the Closing Date
and will be true and correct at and as of the Closing Date.
8.3 Compliance with Covenants and Conditions. The Seller and each
other member of the Socma Group will have performed and complied with all
covenants,
10
agreements and conditions required by this Agreement to be performed or complied
with by it prior to or on the Closing Date.
8.4 Closing Certificates. Each member of the Socma Group will have
delivered to Equifax certificates, executed by the appropriate officers or other
Representative of each party, dated as of the Closing, certifying in such detail
as Equifax may request as to the fulfillment and satisfaction of the conditions
specified in Paragraphs 8.2 and 8.3.
8.5 Opinion of Counsel. Equifax will have received from (i) Tozzini
Freire Teixera e Silva, special Brazilian legal counsel for Socma Group, and
(ii) Dr. Antonio Solsona, general counsel of the Socma Group, a legal opinion,
dated as of the Closing Date, in substantially the forms set forth in Exhibits
E-1 and E-2, respectively, to this Agreement.
8.6 Consents. Equifax will have received from any and all Persons and
Governments any and all relevant consents, authorizations and approvals as are
necessary for the consummation of the transactions contemplated by this
Agreement, and all notices required to be given to all Persons and Governments
will have been given and all applicable waiting periods will have expired.
8.7 No Inconsistent Requirements. No Action will have been commenced
by any Government or Person seeking to enjoin or prohibit the transactions
contemplated by this Agreement.
8.8 No Injunction. No temporary restraining order, preliminary or
permanent injunction or other order by any court of competent jurisdiction which
prohibits the consummation of the transactions contemplated in this Agreement
will have been issued and remain in effect on the Closing Date; provided,
however, that the Parties will use all reasonable efforts to have each and every
relevant order or injunction vacated or reversed prior to the Closing Date.
8.9 Resignations. Any and all representatives of any member of the
Socma Group, Seller or other persons appointed by or at the direction or request
of any such member of the Socma Group who currently serve Unnisa as a director,
officer, manager or representative shall have resigned from such positions prior
to the Closing Date.
8.10 Miscellaneous. Equifax and its counsel will have received any and
all other opinions, certifications, documents, instruments and agreements from
each member of the Socma Group and their respective counsel, as Equifax and its
counsel may reasonably request, provided that such request is essential for the
completion of the transactions contemplated in this Agreement.
9. CONDITIONS TO OBLIGATIONS OF THE SOCMA GROUP
The obligations of the Socma Group under this Agreement are subject to
the fulfillment and satisfaction of each and every of the following conditions
on or prior to the Closing, any or all of which may be waived in whole or in
part by the Socma Group:
9.1 Proceedings and Documents Satisfactory. All proceedings taken in
connection with the consummation of the transactions contemplated in this
Agreement and all documents and papers reasonably required in connection with
this Agreement, will be
11
reasonably satisfactory to the Socma Group and its counsel, and the Socma Group
and its counsel will have timely received copies of the relevant documents and
papers, all in form and substance satisfactory to the Socma Group and its
counsel, as reasonably requested by the Socma Group or its counsel, provided
that such request is essential for the completion of the transactions
contemplated in this Agreement.
9.2 Representations and Warranties. The representations and
warranties contained in this Agreement and in any certificate, instrument,
schedule, agreement or other writing delivered by or on behalf of, or in respect
of, EFX or Holdings in connection with the transactions contemplated by this
Agreement will be true and correct as of the date when made and will be deemed
to be made again at and as of the Closing Date and will be true and correct at
and as of the Closing Date.
9.3 Compliance with Covenants and Conditions. Each of EFX and
Holdings will have performed and complied with all covenants, agreements and
conditions required by this Agreement to be performed or complied with prior to
or on the Closing Date.
9.4 Closing Certificates. Each of EFX and Holdings will have
delivered to the Socma Group certificates, executed by the appropriate officers
or other Representatives, dated as of the Closing, certifying in such detail as
the Socma Group may request as to the fulfillment and satisfaction of the
conditions specified in Paragraphs 9.2 and 9.3.
9.5 Authorization. Each of EFX and Holdings will have delivered to
the Socma Group written evidence of all requisite corporate or other approvals
or authorizations necessary for such Party to authorize and approve the
execution of this Agreement by such Party, and all other action necessary to
enable such Party to comply with the terms of this Agreement.
9.6 Consents. The Socma Group will have received from any and all
Persons and Governments any and all relevant consents, authorizations and
approvals as are necessary for the consummation of the transactions contemplated
by this Agreement, and all notices required to be given to all Persons and
Governments will have been given and all applicable waiting periods shall have
expired.
9.7 Opinion of Counsel. The Socma Group will have received from
Kilpatrick Stockton LLP and Mundie e Advogados, legal counsel to Equifax, a
legal opinion, dated the Closing Date, in substantially the form set forth in
Exhibits F-1 and F-2, respectively, to this Agreement.
9.8 No Inconsistent Requirements. No Action will have been commenced
by any Government or Person seeking to enjoin or prohibit the transactions
contemplated by this Agreement.
9.9 No Injunction. No temporary restraining order, preliminary or
permanent injunction or other order by any court of competent jurisdiction which
prohibits the consummation of the transactions contemplated in this Agreement
will have been issued and remain in effect on the Closing Date; provided,
however, that the Parties will use all reasonable efforts to have any and all
relevant order or injunction vacated or reversed prior to the Closing Date.
12
9.10 Miscellaneous. The Seller and Socma and its counsel will have
received any and all other opinions, certifications, documents, instruments and
agreements from EFX and Holdings and their respective counsel, as the Seller and
Socma and its counsel may reasonably request, provided that such request is duly
motivated and is essential for the completion of the transactions contemplated
in this Agreement.
10. INDEMNITIES
10.1 Indemnification of Equifax. In accordance with and subject to the
further provisions of this Article 10, each member of the Socma Group (each, an
"Indemnitor") will, jointly and severally indemnify and hold harmless Equifax
----------
and Equifax's Affiliates and their respective officers, directors, agents and
employees (collectively, "Indemnitees"), from and against and in respect of any
-----------
and all loss, damage, Liability, cost and expense, including reasonable
attorneys' fees and amounts paid in settlement (collectively, the "Indemnified
-----------
Losses"), suffered or incurred by any one or more of the Indemnitees by reason
- ------
of, or arising out of:
(a) any misrepresentation, breach of warranty or breach or
nonfulfillment of any agreement of any member of the Socma Group contained in
this Agreement or in any other certificate, schedule, instrument or document
delivered to Equifax by or on behalf of any member of the Socma Group pursuant
to or in connection with the provisions of this Agreement;
(b) any and all Taxes in respect of or measured by income or relating
to capital gains or other similarly imposed Taxes arising from or in connection
with the sale of the Quotas as contemplated by or provided for in this
Agreement; and
(c) any and all Actions, suits, proceedings, claims, demands,
assessments, judgments, fees and expenses, incident to any of the foregoing or
incurred in investigating or attempting to avoid any Actions, suits,
proceedings, claims, demands, assessments, judgments, fees and expenses or to
oppose the imposition of any Actions, suits, proceedings, claims, demands,
assessments, judgments, fees and expenses, or in enforcing this Agreement in
connection with any breach or default or threatened breach or default by an
Indemnitor, including without limitation the provisions of this Article 10.
10.2 Indemnification of the Socma Group by Equifax. In accordance with
and subject to the further provisions of this Article 10, each of EFX and
Holdings (collectively, the "EFX Indemnitors")quifax will, jointly and
---------------
severally, indemnify and hold harmless each member of the Socma Group their
affiliates and respective officers, directors, agents and employees
(collectively "Socma Indemnitees") from and against and in respect of any and
-----------------
all loss, damage, Liability, cost and expense, including reasonable attorneys'
fees and amounts paid in settlement (collectively, the "Socma Indemnified
-----------------
Losses") suffered or incurred by any one or more of the Indemnitees by reason
- ------
of, or arising out of:
(i) any misrepresentation, breach of warranty or breach or
nonfulfillment of any agreement of Equifax contained in this Agreement or in any
certificate, schedule, instrument or document delivered to the Socma Group by or
on behalf of Equifax pursuant to the provisions of this Agreement;
13
(ii) any and all Actions, suits, proceedings, claims, demands,
assessments, judgments, fees and expenses, incident to any of the foregoing or
incurred in investigating or attempting to avoid any Actions, suits,
proceedings, claims, demands, assessments, judgments, fees and expenses or to
oppose the imposition of any Actions, suits, proceedings, claims, demands,
assessments, judgments, fees and expenses, or in enforcing this Agreement,
including without limitation the provisions of this Article 10.
10.3 No Contribution by Unnisa. Unnisa will not have any Liability to
any member of the Socma Group as a result of any misrepresentation or breach of
representation or warranty relating to Unnisa contained in this Agreement or any
certificate, schedule, instrument, agreement or other writing delivered by or on
behalf of, or in respect of, any member of the Socma Group pursuant to this
Agreement or in connection with the transactions contemplated by this Agreement.
10.4. Payment. Subject to the provisions of Paragraph 10.5 below, (i)
after a final, non-appealable judgment has been rendered or a settlement has
been reached in respect of a third party claim or Action, or (ii) in the case of
a claim for Indemnified Losses arising other than pursuant to a third party
claim or Action, after the award of the Arbitral Body has been issued or a
settlement has been reached, Indemnitor shall reimburse the Indemnitees within
30 days of written demand on the Indemnitor for any amounts to which Indemnitees
are entitled to indemnification pursuant to this Article 10.
10.5. Defense of Claims.
(a) Except as provided in Paragraph 10.5(b), if any Action by a third
party arises after the date of this Agreement for which Indemnitor may be liable
under the terms of this Agreement, then the Indemnitees will notify
Indemnitor(s) in accordance with the provisions of this Article 10, and will
give Indemnitor(s) a reasonable opportunity:
(i) to conduct any proceedings or negotiations in connection with the
Action and necessary or appropriate to defend the Indemnitees;
(ii) to take all other required steps or proceedings to settle or
defend any Action; and
(iii) to employ counsel reasonably acceptable to Indemnitees to contest
any Action in the name of the Indemnitees or otherwise.
The expenses of all proceedings, contests or lawsuits with respect to the
Actions will be borne by Indemnitor(s).
(b) If Indemnitor(s) do(es) not assume the defense of, or if after so
assuming the Indemnitors fail to defend, any Action, then the Indemnitees may
defend against any claim or Action in the manner they may deem appropriate and
the Indemnitees may settle any claim or Action on the terms they deem
appropriate, and Indemnitor(s) will promptly reimburse the Indemnitees for the
amount of all expenses, legal and otherwise, reasonably and necessarily incurred
by the Indemnitees in connection with the defense against and settlement of any
claim or Action. If no settlement of any claim or Action is made, Indemnitor(s)
will satisfy any judgment rendered with respect to any claim or in any Action,
before the Indemnitees are
14
required to do so, and pay all expenses, legal or otherwise, reasonably and
necessarily incurred by the Indemnitees in the defense of any claim or Action.
(c) If a judgment is rendered against any of the Indemnitees in any
Action covered by the indemnification under this Agreement, or any Lien in
respect of any judgment attaches to any of the assets of any of the Indemnitees
or Unnisa, Indemnitor(s) will immediately upon any entry or attachment pay the
relevant judgment in full or discharge the relevant Lien unless, at the expense
and direction of Indemnitor(s), an appeal is taken under which the execution of
the judgment or satisfaction of the Lien is stayed. If and when a final judgment
is rendered in any action, Indemnitor(s) will forthwith pay any judgment or
discharge any Lien before any of the Indemnitees is compelled to do so.
(d) Any notice required to be given to Indemnitor(s) pursuant to
Paragraph 10.5(a) shall be given no later than the latter of: (i) the end of the
first half of the term within which an answer or other response to the Action is
required to be made (the "Answer Period") and (ii) two Business Days after
------ ------
receipt by an Indemnitee of notice of the Action. Indemnitor(s) shall assume the
defense of any Action, if at all, by notice to Indemnitees no later than the
earlier of: (i) the end of the second third of the Answer Period and (ii) three
Business Days prior to the date by which an answer or other response to the
Action is required to be made. Indemnitor(s)' failure to notify Indemnitees
within the specified time shall be conclusively deemed an election by
Indemnitor(s) not to assume such defense. Any failure by Indemnitees to give the
requisite notice within the time specified in this Paragraph 10.5(d) will not
relieve Indemnitor(s) of the obligation to indemnify Indemnitees pursuant to
this Article 10 except to the extent that the defense of any Action is
materially prejudiced by the delay.
The Indemnitor(s) or the Indemnitees, as appropriate, shall have the right to
participate in the defense of any Action related to an Indemnified Loss at their
sole cost and expense and the cost and expense of that participation shall not
be an Indemnified Loss. Notwithstanding anything contained in this Article 10 to
the contrary, Indemnitor(s) may not settle any claim or Action, without the
prior approval of Indemnitees, which approval shall not be unreasonably
withheld, delayed or conditioned. For purposes of Paragraphs 10.4 and 10.5,
"Indemnitor", "Indemnitee" and "Indemnified Losses" only, shall mean, as
appropriate, "Indemnitor", "Indemnitee" and "Indemnified Losses" as defined in
Paragraph 10.1, or "EFX Indemnitor", "Socma Indemnitees" and "Socma Indemnified
Losses" as defined in Paragraph 10.2.
11. SURVIVAL.
11.1 Survival. The representations, warranties, covenants, agreements
and indemnities of the Parties contained in this Agreement, or in any writing
delivered pursuant to the provisions of this Agreement, will continue in full
force and effect for the periods specified below (the "Survival Period"):
---------------
(a) representations and warranties relating to title and ownership of
the Quotas, corporate authorization, organization, good standing and
qualification; compliance with laws; fraud or willful misrepresentation, and
completeness of disclosure, will survive indefinitely;
15
(b) representations and warranties relating to Taxes will survive
until expiration of any applicable statute or period of limitations, and any
extensions of the applicable statute or period of limitations; and
(c) all other representations, warranties, covenants, agreements and
indemnities will be of no further force and effect after the expiration of three
(3) years from the Closing Date;
Provided, however, that any claim for an Indemnified Loss presented in writing
to the indemnifying party (together with any relevant supporting documentation)
in accordance with the terms of this Agreement within the Survival Period will
continue to be a valid claim until resolved.
12. TERMINATION.
12.1 Termination for Certain Causes.
This Agreement may be terminated at any time prior to or on the
Closing Date by Equifax or by the Seller, upon written notice to the other as
follows:
(a) By the Socma Group, if the terms, covenants or conditions of this
-----------
Agreement to be complied with or performed by Equifax at or before the Closing
Date will not have been complied with or performed and any noncompliance or
nonperformance will not have been waived by the Seller.
(b) By Equifax, if the terms, covenants or conditions of this
-------
Agreement to be complied with or performed by any member of the Socma Group at
or before the Closing Date will not have been complied with or performed and any
noncompliance or nonperformance will not have been waived by Equifax.
(c) By the Socma Group or by Equifax, if any Action will have been
-------------------------
instituted or threatened against any party to this Agreement to restrain or
prohibit, or to obtain substantial damages in respect of, this Agreement or the
consummation of the transactions contemplated in this Agreement, which, in the
reasonable and good faith opinion of any party, makes consummation of the
transactions contemplated in this Agreement inadvisable.
12.2 Procedure on and Effect of Termination.
(a) Pursuant to Paragraph 12.1 of this Agreement, written notice of
termination will be given to all other Parties by the Party electing to
terminate, and this Agreement will terminate upon the giving of notice, without
further action by any of the Parties, with the consequence and effect set forth
in this Paragraph 12.2.
(b) If for any reason on the Closing Date there has been
nonfulfillment of an undertaking by or covenant for Equifax or for Socma Group
not waived in writing by or on behalf of the Party in whose favor the
undertaking or covenant runs, the Party in whose favor the undertaking or
covenant runs, in addition to any other right or remedy available to it for
breach or non-performance of this Agreement, may refuse to consummate the
transactions contemplated by this Agreement without Liability or obligation on
its part whatsoever.
16
Notwithstanding the foregoing, the obligations of the Parties pursuant to
Paragraphs, 4.5, 4.6, 11.1, 12.1, 12.2, 13.6 and 13.7 will survive any
termination.
13. MISCELLANEOUS.
13.1 Notices.
(a) All notices, demands or other communications required or
permitted to be given or made under this Agreement will be in writing and (i)
delivered personally, (ii) sent by an internationally recognized express courier
service, or (iii) sent by certified airmail, return receipt requested to the
intended recipient of the notice, demand or other communication at its address
set forth below. Any notice, demand or communication will be deemed to have been
duly given (x) immediately if personally delivered, (y) on the fourth Business
Day after delivery to an international express courier services, or (z) on the
tenth Business Day after delivery to the relevant postal service and in proving
the giving of any notice, demand or other communication, it will be sufficient
to show that the envelope containing the notice, demand or other communication
was duly addressed (as evidenced by the courier receipt). The addresses of the
Parties for purposes of this Agreement are:
If to Socma Group: Attn: Miguel Sosa
c.c. Leonardo Maffioli
Av. E. Madero 940- P.14
C1106ACW Buenos Aires - Argentina
in each case with a copy to: Attn. Tozzini Freire Teixeira e
Silva
Rua Libero Badaro, 293 - 19 Andar
CEP 01095-9000
Sao Paulo - SP - Brazil
Tel. 55-11-232-2100
Fax. 55-11-232-3100
Attn: Jose Luis de Salles Freire
If to Equifax: Equifax Payment Services, Inc.
11601 Roosevelt Boulevard
St. Petersburg, Florida 33716
United States of America
Attn: Larry Towe
Executive Vice President and
Group Executive
Equifax Payment Services, Inc.
11601 Roosevelt Boulevard
St. Petersburg, Florida 33716
United States of America
Attn.: Walter Korchun
Assistant General Counsel
17
Kilpatrick Stockton LLP
Suite 2800
1100 Peachtree Street
Atlanta, Georgia 30309-4530
United States of America
Attn.: Gregory K. Cinnamon
(b) Any Party may change the address to which notices, requests,
demands or other communications to the relevant Party will be delivered or
mailed by giving notice of the address change to the other Parties in the manner
provided in this Agreement.
13.2 Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, and all of which will
constitute one and the same instrument.
13.3 Entire Agreement. Except as expressly set forth to the contrary
in this Paragraph 13.3, this Agreement supersedes all prior discussions and
agreements between the Parties with respect to the purchase and sale of the
Quotas as described herein and this Agreement contains the sole and entire
agreement among the Parties with respect to the purchase and sale of the Quotas.
This Agreement will not be altered or amended except by an instrument in writing
signed by or on behalf of the Party entitled to the benefit of the provision
against whom enforcement is sought.
13.4 Reaffirmation of Certain Provisions of the Quotaholders
Agreement. Notwithstanding anything contained herein to the contrary, the
parties hereby expressly agree that, while the Quotaholders Agreement, as
modified by the Modification, will terminate in conjunction with the
Transaction, pursuant to the terms contained in Article 8 thereof, the
provisions of Articles 5, 6 and 7 and all related interpretive provisions
thereof shall survive such termination and shall remain in full force and be
binding on and enforceable against the parties thereto.
13.5 Governing Language. Notwithstanding the translation of this
Agreement into any other language, the official language of this Agreement is
the English language, which will be controlling. Each document, agreement,
instrument, statement, notice or other communication required or permitted to be
given in connection with this Agreement will be in the English language.
13.6 Dispute Resolution.
(a) Any and all disputes (each, a "Disputed Matter") arising out of
---------------
or in connection with the execution, interpretation, performance or
nonperformance of this Agreement will be arbitrated and settled by the
procedures established in this Paragraph 13.6.
(b) Disputed Matters will be solely and finally settled by
arbitration, which will be conducted in New York, New York, U.S.A., by a panel
of three arbitrators, one of whom shall be selected by Equifax, one of whom
shall be selected by the Seller, and the third of who shall be selected by the
arbitrators selected by Equifax and the Seller. The arbitration procedure may be
initiated by any of the Parties by written notice to the other Party to the
Disputed Matter. Any notice will specify in reasonable detail the dispute being
submitted to
18
arbitration. The Parties renounce all recourse to litigation and agree that the
award of the arbitrators will be final and subject to no judicial review.
(c) The arbitrators will conduct the proceedings, including arguments
and briefs, in the English language and in accordance with the international
rules (the "Rules") of the American Arbitration Association ("Arbitral Body");
----- -------------
provided that the provisions of this Agreement will prevail in the event of any
conflict between the Rules and the provisions of this Agreement. The arbitrators
will decide the issues submitted in accordance with the provisions and
commercial purposes of this Agreement, provided that all substantive questions
of law will be determined under the laws of Brazil (without regard to the
principles of conflicts of laws of any relevant state and country). All
decisions of the arbitrators will be in writing and submitted to the Parties,
and will set forth findings of fact and conclusions of law.
(d) The Parties will facilitate the arbitration by: (i) making
available to one another and to the arbitrators for examination, inspection and
extraction all documents, books, records and personnel under their control if
determined by the arbitrators to be relevant to the Disputed Matter; (ii)
conducting arbitration hearings to the greatest extent possible on successive
days; and (iii) observing strictly the time periods established by the Rules or
by the arbitrators for submission of evidence or briefs.
(e) In the final award, the arbitrators will divide all costs, other
than fees of counsel, incurred in conducting the arbitration, in any manner as
the arbitrators deem just and equitable under the circumstances. Judgment on the
award of the arbitrators may be entered into by any court having jurisdiction
over the Party against whom enforcement of the award is being sought.
(f) Each Party agrees that any award of the arbitrators against it
and on which judgment is entered may be executed against the assets of that
Party in any jurisdiction, including Brazil, Argentina and the United States of
America. By execution of this Agreement, each Party irrevocably consents to the
jurisdiction of any court having jurisdiction over that Party for the purpose of
enforcing any award. Each of the Parties irrevocably consents to the service of
process by registered mail, postage prepaid, international express courier, or
by personal service within or without Argentina, Brazil or the State of Georgia,
the State of Florida or the State of New York, to the fullest extent permitted
by applicable Law. Each of the Parties hereby irrevocably designates and
appoints CSC Network, 375 Hudson Street, 11th Floor, New York, New York, as its
respective designee, appointee and local agent to receive for and on behalf of
that Person, service of process in such respective jurisdictions in any
arbitration, legal action or proceeding.
(g) Each Party irrevocably waives, to the fullest extent permitted by
law, any objection it may now or hereafter have to any suit, Action or
proceeding arising out of or relating to this Agreement that is brought in any
jurisdiction designated in the preceding subparagraph, for the purposes of
enforcing any award and further irrevocably waives any claim that any suit,
Action or proceeding so brought has been brought in an inconvenient forum.
(h) Notwithstanding any provision of this Paragraph 13.6 to the
contrary, any Party will be entitled to seek injunctive and other equitable
relief in any court of competent jurisdiction to enforce the provisions of this
Agreement.
19
13.7 Successors and Assigns. This Agreement will be binding upon and
will inure to the benefit of the Parties and their respective heirs, executors,
legal representatives, successors and assigns, but may not be assigned by any
Party without the written consent of all other Parties, except to an Affiliate.
The parties further agree that Unnisa shall be regarded as a third-party
beneficiary to this Agreement and the Quotaholders Agreement, as modified by the
Modification, for all purposes hereunder and thereunder.
13.8 Partial Invalidity and Severability. All rights and restrictions
contained in this Agreement may be exercised and will be applicable and binding
only to the extent that they do not violate any applicable laws and are intended
to be limited to the extent necessary to render this Agreement legal, valid and
enforceable. If any term of this Agreement, or part of this Agreement, not
essential to the commercial purpose of this Agreement will be held to be
illegal, invalid or unenforceable by a court of competent jurisdiction, it is
the intention of the Parties that the remaining terms of this Agreement, or part
of this Agreement, will constitute their agreement with respect to the subject
matter of this Agreement and all remaining terms, or parts of this Agreement,
will remain in full force and effect. To the extent legally permissible, any
illegal, invalid or unenforceable provision of this Agreement will be replaced
by a valid provision which will implement the commercial purpose of the illegal,
invalid or unenforceable provision.
13.9 Waiver. Any term or condition of this Agreement may be waived at
any time by the Party which is entitled to the benefit of the term, but only if
the waiver is evidenced by a writing signed by the relevant Party. No failure on
the part of any Party to this Agreement to exercise, and no delay in exercising
any right, power or remedy created under this Agreement, will operate as a
waiver thereof, nor will any single or partial exercise of any right, power or
remedy by any Party preclude any other or further exercise thereof or the
exercise of any other right, power or remedy. No waiver by any Party to this
Agreement or any breach of or default in any term or condition of this Agreement
will constitute a waiver of or assent to any succeeding breach of or default in
the same or any other term or condition of this Agreement.
13.10 Headings. The headings of particular provisions of this Agreement
are inserted for convenience only and will not be construed as a part of this
Agreement or serve as a limitation or expansion on the scope of any term or
provision of this Agreement.
13.11 Number and Gender. Where the context requires, the use of the
singular form in this Agreement will include the plural, the use of the plural
will include the singular, and the use of any gender will include any and all
genders.
13.12 Time of Performance. Time is of the essence.
13.13 Waiver of Dividends. Each member of the Socma Group waives and
relinquishes their respective rights to receive dividends or other
distributions, if any, in respect of Unnisa for all periods either before or
after the date hereof, whether or not declared, and each covenants and agrees to
execute and deliver such other documents as my be necessary or convenient under
Brazilian law to evidence the same.
20
14. CERTAIN DEFINITIONS; INDEX OF DEFINITIONS
14.1 Certain Definitions. For purposes of this Agreement, the
following capitalized terms will have the meanings specified below (all terms
used in this Agreement which are not defined in this Paragraph 14.1 but defined
elsewhere in this Agreement, will have for purposes of this Agreement the
meanings set forth elsewhere in this Agreement):
"Action" will mean any action, suit, complaint, counter-claim,
------
claim, petition, set-off or administrative proceeding, whether at law, in equity
or otherwise, and whether conducted by or before any Government or other Person.
"Affiliate" of any Person will mean any other Person, at any
---------
time, directly or indirectly controlling, controlled by, or under direct or
indirect common control with the former Person. A Person will be deemed to
control another Person if that Person possesses, directly or indirectly, the
power to direct or cause the direction of the management and policies of the
other Person, whether through the ownership of voting securities, by contract or
otherwise.
"Article" and "paragraph" and like references are to this
------- ---------
Agreement unless otherwise specified, and all "Exhibits" are references to those
--------
attached to this Agreement and incorporated in this Agreement by this reference,
unless otherwise specified.
"Brazil" will mean the Federative Republic of Brazil.
------
"Business Day" will mean any day other than a Saturday, a Sunday
------------
or a day on which commercial banks in any of Atlanta, Georgia, United States of
America, St. Petersburg, Florida, United States of America, Buenos Aires,
Argentina, or Sao Paulo, Brazil, are required or authorized to be closed.
"Contract" will mean all written agreements, commitments and
--------
arrangements to which Unnisa is a party or under which Unnisa has any rights or
obligations.
"Designee" will mean any Affiliate of Equifax that is an entity
--------
formed under and subject to the laws of Brazil.
"Forum" will mean any national, provincial, municipal, local or
-----
foreign court, governmental agency, administrative body or agency, tribunal,
private alternative dispute resolution system, or arbitration panel.
"Government" will mean any national, provincial, state,
----------
municipal, local or foreign government or any ministry, department, commission,
board, bureau, agency, authority, instrumentality, unit, or taxing authority
thereof.
"Knowledge" will mean the actual knowledge of the relevant Person
---------
without any obligation of inquiry.
"Law" will mean all national, provincial, state, municipal, local
---
or foreign constitutions, statutes, rules, regulations, ordinances, acts, codes,
legislation, treaties, conventions and similar laws and legal requirements, as
in effect from time to time.
21
"Liability" will mean any liability or obligation whether known
---------
or unknown, asserted or unasserted, absolute or contingent, accrued or
unaccrued, liquidated or unliquidated and whether due or to become due.
"Lien" will mean any claim, mortgage, pledge, hypothecation,
----
security interest, encumbrance, lien or charge of any kind, or any rights of
others, however evidenced or created (including any agreement to give any of the
foregoing, any conditional sale or other title retention agreement, or any lease
having a similar effect or result).
"Orders" will mean all orders, writs, judgments, decrees, rulings
------
and awards of any Forum or Government.
"Parties" will mean the signatories to this Agreement, and a
-------
"Party" will mean any one of them.
"Person" will mean and include an individual, a partnership, a
------
joint venture, a corporation, a trust, an unincorporated organization, any legal
or juridical entity, the equivalent of any of the foregoing under any Law, and
any Government.
"Proprietary Rights" will mean (i) all patents, patent
------------------
applications and registrations, trademarks, trademark applications and
registrations, copyright applications and registrations, trade names and
industrial designs, service marks and service mark applications, Brazilian or
foreign, owned or used by Unnisa in or otherwise relating to the operation of
their respective businesses, (ii) all trade secrets, know-how, inventions and
other intellectual property, owned or used by Unnisa relating to the operation
of their respective businesses; and (iii) all computer systems and application
software, including without limitation, all documentation relating to the
computer systems and application software, and the latest revisions of all
related object and source codes therefor, owned or used by Unnisa, in or
otherwise relating to the operation of their respective businesses.
"R$ or "Brazilian reais" will mean the lawful currency of Brazil.
----------------------
"Relevant Records" will mean, collectively, (i) the written
----------------
records of Unnisa, (ii) any writings prepared by Equifax or its Affiliates and
relating to Unnisa, and (iii) any writings prepared by or received by either
Socma Americana S.A. or its Affiliates or Andrade Gutierrez S.A. or its
affiliates relating to Unnisa and delivered to either Unnisa or Equifax or its
Affiliates. For the avoidance of doubt, writings prepared by an officer or
director of any Relevant Person shall be a writing of such Person.
"Representative" of a Party will mean that Party's directors,
--------------
officers, partners, employees, agents, accountants and lawyers.
"Taxes" will mean any taxes, levies, imposts, duties, fees,
-----
assessments, deductions, withholdings or other charges of whatever nature,
including without limitation income, gross receipts, excise, property, sales,
transfer, license, payroll, withholding, social security, and franchise taxes,
imposed or levied by Brazil, or any state, local or foreign Government, or by
any department, agency or other political subdivision or taxing authority
thereof or therein and all interests, penalties, additions to tax, and other
similar liabilities with respect to the Taxes and relating to any period on or
prior to the Closing Date.
22
14.2 Index to Definitions. The definitions for the following defined
terms used in this Agreement can be found as follows:
Defined Term Paragraph or Reference
------------ ----------------------
Acquisition Price 1.1
Answer Period 10.5
Arbitral Body 13.6
Closing 3.1
Closing Date 3.1
Disputed Matter 13.6
EFX Preamble
EFX Indemnitors 10.2
Equifax Preamble
Holdings Preamble
Indemnified Losses 10.1
Indemnitees 10.1
Indemnitor 10.1
Modification Preamble
Quotaholders Agreement Preamble
Quotas Preamble
Related Parties 5.12
Rules 13.6
Sanwer Preamble
Seller Preamble
Socma Preamble
Socma Group Preamble
Socma Indemnitors 10.2
Socma Indemnified Losses 10.2
SFH 2.1
Survival Period 11.1
Transaction Preamble
Unnisa Preamble
Unnisa Quotas 5.3
23
IN WITNESS WHEREOF, the Parties have executed this Agreement on May 24,
2001, in the City and State of Sao Paulo, Brazil.
EQUIFAX PAYMENT SERVICES, INC.
By: /s/ Walter M. Korchun
-----------------------------------
Name: Walter M. Korchun
EQUIFAX DO BRASIL HOLDINGS LTDA.
By: Luiz Frederico Vila Buosi
-----------------------------------
Name: Luiz Frederico Vila Buosi
-----------------------------
SOCMA AMERICANA S.A.
By: /s/ Antonio J. Solsona
-----------------------------------
Name: Antonio J. Solsona
-----------------------------
By: /s/ Miguel Solsa
-----------------------------------
Name: Miguel Solsa
-----------------------------
SIDECO BRASIL S.A.
By: /s/ Paula de Tanso Olveira Guimarues
---------------------------------------
Name: Paula de Tanso Olverira Guimarues
---------------------------------
By: /s/ Manuel Bota Lima Jr.
---------------------------------------
Name: Manuel Bota Lima Jr.
--------------------------------
UNNISA-SOLUCOES EM MEIOS DE PAGAMENTO LTDA.
By: /s/ Luis Acosta Acosta
-----------------------------------
Name: Luis Acosta Acosta
------------------------------
By: /s/ Claudio Luis Naleto
-----------------------------------
Name: Claudio Luis Naleto
------------------------------
WITNESSES
1. /s/ Darcy Teixeira Jr.
------------------------------
Name: Darcy Teixeira Jr.
RG:
2. /s/ Allan Kardec de Melo Ferreira
---------------------------------
Name: Allan Kardec de Melo Ferreira
RG:
24