a48stockpurchagreemmiffi






EXECUTION VERSION    STOCK PURCHASE AGREEMENT    dated as of    November 11, 2021    among  MILLICOM INTERNATIONAL II N.V.,  SHAI HOLDING S.A.  and  MIFFIN ASSOCIATES CORP.    relating to the purchase and sale  of  the Companies referred to herein    





 






  i    TABLE OF CONTENTS    PAGE  ARTICLE 1  DEFINITIONS  Section 1.01.  Definitions.....................................................................................................1  Section 1.02.  Other Definitional and Interpretative Provisions ..........................................5  ARTICLE 2  PURCHASE AND SALE  Section 2.01.  Purchase and Sale .........................................................................................6  Section 2.02.  Closing ..........................................................................................................6  ARTICLE 3  REPRESENTATIONS AND WARRANTIES OF SELLER  Section 3.01.  Corporate Existence and Power ....................................................................8  Section 3.02.  Capitalization ................................................................................................8  Section 3.03.  Corporate Authorization ...............................................................................8  Section 3.04.  Governmental Authorization ........................................................................8  Section 3.05.  Noncontravention ..........................................................................................8  Section 3.06.  Ownership of Shares .....................................................................................8  Section 3.07.  Litigation .......................................................................................................8  Section 3.08.  Court Orders..................................................................................................9  Section 3.09.  Related Party Transactions and Balances .....................................................9  Section 3.10.  No Brokers ....................................................................................................9  ARTICLE 4  REPRESENTATIONS AND WARRANTIES OF BUYERS  Section 4.01.  Corporate Existence and Power ....................................................................9  Section 4.02.  Corporate Authorization ...............................................................................9  Section 4.03.  Governmental Authorization ........................................................................9  Section 4.04.  Noncontravention ........................................................................................10  Section 4.05.  Litigation .....................................................................................................10  Section 4.06.  Court Orders................................................................................................10  Section 4.07.  Investment Purpose .....................................................................................10  Section 4.08.  Independent Investigation ...........................................................................10  Section 4.09.  No Brokers ..................................................................................................10  ARTICLE 5  COVENANTS OF SELLER  Section 5.01.  Noncompetition, etc ....................................................................................11  





 






ii    ARTICLE 6  COVENANTS OF BUYERS AND/OR SELLER  Section 6.01.  Notices of Certain Events ...........................................................................12  Section 6.02.  Commercially Reasonable Best Efforts; Further Assurances .....................13  Section 6.03.  Certain Filings .............................................................................................13  Section 6.04.  Payment of Capital Gains Tax ....................................................................13  Section 6.05.  Dividends and Miffin Notes........................................................................15  Section 6.06.  Closing Shareholders’ Meetings .................................................................16  Section 6.07.  Registration of Buyer Leases; Revocation of Appointments ......................17  ARTICLE 7  CONDITIONS TO CLOSING  Section 7.01.  Conditions to Obligations of Buyers and Seller .........................................18  Section 7.02.  Conditions to Obligation of Buyers ............................................................18  Section 7.03.  Conditions to Obligation of Seller ..............................................................19  ARTICLE 8  SURVIVAL; INDEMNIFICATION  Section 8.01.  Survival .......................................................................................................19  Section 8.02.  Indemnification ...........................................................................................19  Section 8.03.  Third Party Claim Procedures .....................................................................21  Section 8.04.  Direct Claim Procedures .............................................................................22  Section 8.05.  Exclusive Remedies ....................................................................................23  ARTICLE 9  TERMINATION  Section 9.01.  Grounds for Termination ............................................................................23  Section 9.02.  Effect of Termination ..................................................................................23  ARTICLE 10  WAIVER AND RELEASE; BUYERS AND COMPANY INDEMNIFICATION  Section 10.01.  Release by Seller .......................................................................................24  Section 10.02.  Release by Buyers .....................................................................................24  Section 10.03.  Exceptions .................................................................................................24  Section 10.04.  Waiver of Legal Rights .............................................................................25  Section 10.05.  No Assignment of Released Claims .........................................................25  Section 10.06.  No Admission ...........................................................................................25  Section 10.07.  Buyer Indemnification ..............................................................................25  Section 10.08.  Waiver with Respect to Seller Shares .......................................................26  





 






iii    ARTICLE 11  CONFIDENTIALITY  Section 11.01.  Confidential Information ..........................................................................26  Section 11.02.  Disclosure of Confidential Information ....................................................27  Section 11.03.  Exceptions to Duty to Keep Confidential .................................................27  Section 11.04.  Return of Confidential Information ..........................................................28  Section 11.05.  Term of Article 11 ....................................................................................28  ARTICLE 12  NON-DISPARAGEMENT  Section 12.01.  Non-disparagement Covenant ...................................................................29  ARTICLE 13  MISCELLANEOUS  Section 13.01.  Notices ......................................................................................................29  Section 13.02.  Amendments and Waivers ........................................................................30  Section 13.03.  Expenses ...................................................................................................31  Section 13.04.  Successors and Assigns.............................................................................31  Section 13.05.  Governing Law .........................................................................................31  Section 13.06.  Dispute Resolution ....................................................................................31  Section 13.07.  WAIVER OF JURY TRIAL .....................................................................32  Section 13.08.  Counterparts; Effectiveness; Third Party Beneficiaries ............................32  Section 13.09.  Entire Agreement ......................................................................................33  Section 13.10.  Severability ...............................................................................................33  Section 13.11.  Specific Performance ................................................................................33  Section 13.12.  Public Announcements .............................................................................33    Exhibit A Form of Custody Agreement  Exhibit B Form of Guarantee Agreement  Exhibit C Form of Shareholders’ Meetings Minutes  Exhibit D Form of Extension to Buyer Lease      





 






    STOCK PURCHASE AGREEMENT  AGREEMENT (this “Agreement”) dated as of November 11, 2021, among  Millicom International II N.V., a Curaçao limited liability company (“Curaçao Buyer”),  Shai Holding S.A., a Luxembourg société anonyme (“Luxembourg Buyer” and, together  with Curaçao Buyer, “Buyers” and each, a “Buyer”) and Miffin Associates Corp., a  Panamanian corporation (“Seller”).  W I T N E S S E T H:  WHEREAS, each of (i) Comunicaciones Corporativas, S.A. (“COMCORP”), (ii)  Comunicaciones Celulares, S.A. (“COMCEL”), (iii) Servicios Innovadores de  Comunicación y Entretenimiento, S.A. (“SICESA”), (iv) Distribuidora de  Comunicaciones de Occidente, S.A. (“COOCSA”), (v) Distribuidora de Comunicaciones  de Oriente, S.A. (“COORSA”), (vi) Distribuidora Internacional de Comunicaciones, S.A.  (“INTERNACOM”), (vii) Navega.com, S.A. (“Navega”), (viii) Servicios  Especializados en Telecomunicaciones, S.A. (“SESTEL”), (ix) Distribuidora Central de  Comunicaciones, S.A. (“COCENSA”) and (x) Cloud 2 Nube, S.A. (“C2N” and, together  with COMCORP, COMCEL, SICESA, COOCSA, COORSA, INTERNACOM, Navega,  SESTEL and COCENSA, the “Companies” and each, a “Company”) is a Guatemalan  corporation (sociedad anónima);  WHEREAS, Curaçao Buyer is the record and beneficial owner of 55% of the  issued and outstanding shares of stock of the Companies (other than C2N);  WHEREAS, Seller is the record and beneficial owner of the remaining 45% of the  issued and outstanding shares of stock of the Companies (other than C2N) (the “Non- C2N Seller Shares”);  WHEREAS, Millicom Spain S.L., a Spanish private limited company, is the  record and beneficial owner of 55% of the issued and outstanding shares of stock of C2N;  WHEREAS, Seller is the record and beneficial owner of the remaining 45% of the  issued and outstanding shares of stock of C2N (the “C2N Seller Shares” and, together  with the Non-C2N Seller Shares, the “Seller Shares”);  WHEREAS, Seller desires to sell the Seller Shares to Buyers, and Buyers desire  to purchase the Seller Shares from Seller, upon the terms and subject to the conditions  hereinafter set forth.  The parties, in consideration of the mutual obligations contained herein, the  sufficiency of which is hereby expressly acknowledged, hereto agree as follows:  ARTICLE 1  DEFINITIONS  Section 1.01. Definitions.  (a) The following terms, as used herein, have the  following meanings:  





 






2    “Affiliate” means, with respect to any Person, any other Person who, as of the  relevant time for which the determination of affiliation is being made, directly or  indirectly controls, is controlled by or is under common control with such Person;  provided that (a) none of the Companies shall be considered an Affiliate of Seller, (b)  prior to the Closing none of the Companies shall be considered an Affiliate of Buyers, (c)  each of Fundacion Atitlan, Leyvaz Limited, Zanfort Limited, Gellion Limited and Dynam  Global Limited and their respective Affiliates and the officers and directors of Leyvaz  Limited, Zanfort Limited, Gellion Limited and Dynam Global Limited and their  respective Affiliates shall be deemed Affiliates of Seller and (d) Blue Tower Ventures, a  British Virgin Island Corporation shall be deemed an Affiliate of Seller.  For purposes of  this definition, “control” when used with respect to any Person means the power to direct  the management and policies of such Person, directly or indirectly, whether through the  ownership of voting securities, by contract or otherwise, and the terms “controlling” and  “controlled” have correlative meanings.  “Applicable Law” means, with respect to any Person, any transnational, domestic  or foreign federal, state or local law (statutory, common or otherwise), constitution,  treaty, convention, ordinance, code, rule, regulation, order, injunction, judgment, decree,  ruling or other similar requirement enacted, adopted, promulgated or applied by a  Governmental Authority that is binding upon or applicable to such Person, as amended  unless expressly specified otherwise.  “Business” means residential, B2B, Pay-TV, OTT, fixed, mobile and/or wireless  Internet, mobile and/or fixed telephony services, and/or mobile financial services.  “Business Day” means a day, other than Saturday, Sunday or other day on which  commercial banks in New York, New York, Luxembourg City, Luxembourg, or  Guatemala City, Guatemala are authorized or required by Applicable Law to close.  “Buyer Disclosure Schedule” means the disclosure schedule delivered by Buyers  to Seller in connection with this Agreement prior to the date hereof.  “Buyer Leases” means the leases set forth on Section 1.01 of the Buyer  Disclosure Schedule.  “Claims” means any and all manner of liabilities, causes of action at law or in  equity, claims, complaints, actions, demands, suits, debts, obligations, damages,  obligations, indebtedness, amounts owed, dues, judgments, rights of contribution under  any Applicable Law, costs, expenses and other claims of any and every kind, arising  under any theory of contract, tort, breach of duty, strict liability, negligence, or any other  theory of liability or based on any foreign, federal, state, or local law, code, statute, rule  or regulation, or the common or civil law of any jurisdiction (in each case, whether  known, unknown, disclosed, undisclosed, matured, unmatured, accrued, unaccrued,  asserted, unasserted, liquidated, unliquidated, absolute, contingent, direct, indirect,  conditional, unconditional, secured, unsecured, vicarious, derivative, due, joint, several or  secondary).  





 






3    “Closing Date” means the date of the Closing.  “Disclosure Schedule” means the disclosure schedule delivered by the Seller to  Buyers in connection with this Agreement prior to the date hereof.  “Family Members” means, with respect to any individual, such individual’s  spouse, former spouses, domestic partners, ascendants, descendants (including adoptive  relationships and stepchildren and stepparents), siblings and the spouse or domestic  partners of any of the foregoing individuals.  “Fraud” means, with respect to a party, an actual and intentional  misrepresentation of a material existing fact with respect to the making of any  representation or warranty in Article 3 or Article 4 made by such party, to such party’s  actual knowledge, of its falsity and made for the purpose of inducing the other party to  act, and upon which the other party justifiably relies with resulting Damages.  “Fundamental Warranty” means the representations and warranties contained in  any of Sections 3.01, 3.02, 3.03, 3.05(i), 3.06, 3.09, 3.10, 4.01, 4.02, 4.04(i) and 4.09.  “Governmental Authority” means any transnational, domestic or foreign  federal, state or local governmental, regulatory or administrative authority, department,  court, agency, commission or official, including any political subdivision thereof.  “Knowledge” of any Person that is (i) not an individual means the knowledge of  such Person’s officers after reasonable inquiry and (ii) an individual means the actual  knowledge of such Person or knowledge that would be obtained after reasonable inquiry.  “Lien” means, with respect to any property or asset, any mortgage, lien, pledge,  charge, security interest, encumbrance, restriction on use or transfer or other adverse  claim of any kind in respect of such property or asset, including any restriction on the  right to vote, sell or otherwise dispose of any capital stock or other voting or equity  interest or any restriction on the exercise of any attributes of ownership (other than those  under applicable federal, state and foreign securities laws).  For the purposes of this  Agreement, a Person shall be deemed to own subject to a Lien any property or asset  which it has acquired or holds subject to the interest of a vendor or lessor under any  conditional sale agreement, capital lease or other title retention agreement relating to such  property or asset.  “Miffin Notes” means, collectively, (i) that certain promissory note, dated April  22, 2020, issued by Seller to COMCEL, with a principal amount equal to $11,250,000;  (ii) that certain promissory note, dated June 1, 2020, issued by Seller to COMCEL, with a  principal amount equal to $11,250,000; and (iii) that certain promissory note, dated May  22, 2020, issued by Seller to COMCEL, with a principal amount equal to $10,937,112.26.  “Person” means an individual, corporation, partnership, limited liability  company, private limited company, public limited company, association, trust or other  entity or organization, including a Governmental Authority.  





 






4    “Related Party” means, with respect to a specified Person, (i) such specified  Person’s Affiliates, Family Members (if such specified Person is an individual),  members, general or limited partners, officers, directors, employees and direct or indirect  equity holders; (ii) the Family Members, successors and assigns of any Person covered by  the foregoing clause (i); and (iii) with respect to Seller, any Person who is “controlled”  (within the meaning set forth in the above definition of “Affiliate”) by Seller’s Affiliates  on a consolidated basis.  “Side Letter” means a side letter, dated as of the date hereof, among any Seller  Owner and Buyers.  “Subsidiary” of a Person means a corporation, partnership, limited liability  company, association or joint venture or other business entity of which a majority of the  equity interests having ordinary voting power for the election of directors or other  governing body (other than securities or interests having such power only by reason of  the happening of a contingency) are at the time owned or the management of which is  controlled, directly, or indirectly through one or more intermediaries, by such Person.   For purposes of this definition, “control” has the same meaning given to such term in the  definition of “Affiliate.”  (b) Each of the following terms is defined in the Section set forth  opposite such term:  Term Section  2022 Meeting 6.05(b)  Agreement Preamble  Buyers Preamble  Buyer Released Claims 10.02  Buyer Released Parties 10.02  C2N Recitals  C2N Seller Shares Recitals  CEO 10.02  Closing 2.02  Closing Shareholders’ Meetings 6.06  COCENSA Recitals  COMCEL Recitals  COMCORP Recitals  COOCSA Recitals  COORSA Recitals  COMCEL Note 6.04(b)  Company Recitals  Company Person Indemnitee 10.07  Condition to Closing Shareholders’  Meetings  6.06  Confidential Information 11.01(a)  Coupon Aggregate Amount 6.05(b)  Coupons 6.05(a)  





 






5    Term Section  Curaçao Buyer Preamble  Custody Agreement 6.04(b)  Damages 8.02  Direct Claim 8.04  Dispute 13.06(a)  Documents Evidencing Payment of Tax 6.04(a)  e-mail 13.01  Final Tax Amount 6.04  Foundation 6.07(c)  Guarantee Agreement 6.05(d)  ICC 13.06(a)  Indemnified Party 8.03  Indemnifying Party 8.03  Initial Withheld Amount 6.04  INTERNACOM Recitals  Irrevocable Instruction 6.05(b)  Luxembourg Buyer Preamble  Miffin Note Expiration Date 2.02(f)  Navega Recitals  Non-C2N Seller Shares Recitals  Purchase Price 2.01  Related Party Agreements 3.09(a)  Released Claims 10.02  Rules 13.06(a)  Seller Preamble  Seller Owners 7.02(e)  Seller Released Claims 10.01  Seller Released Parties 10.01  Seller Shares Recitals  SESTEL Recitals  SICESA Recitals  Shares Recitals  Tax Due Date 6.04  Third Party Claim 8.03  Tribunal 13.06(b)  Warranty Breach 8.02    Section 1.02. Other Definitional and Interpretative Provisions.  The words  “hereof”, “herein” and “hereunder” and words of like import used in this Agreement shall  refer to this Agreement as a whole and not to any particular provision of this Agreement.   The captions herein are included for convenience of reference only and shall be ignored  in the construction or interpretation hereof.  References to Articles, Sections, Exhibits  and Schedules are to Articles, Sections, Exhibits and Schedules of this Agreement unless  otherwise specified.  All Exhibits and Schedules annexed hereto or referred to herein are  hereby incorporated in and made a part of this Agreement as if set forth in full herein.   





 






6    Any capitalized terms used in any Exhibit or Schedule but not otherwise defined therein,  shall have the meaning as defined in this Agreement.  Any singular term in this  Agreement shall be deemed to include the plural, and any plural term the singular.   Whenever the words “include”, “includes” or “including” are used in this Agreement,  they shall be deemed to be followed by the words “without limitation”, whether or not  they are in fact followed by those words or words of like import.  “Writing”, “written”  and comparable terms refer to printing, typing and other means of reproducing words  (including electronic media) in a visible form.  References to any statute shall be deemed  to refer to such statute as amended from time to time and to any rules or regulations  promulgated thereunder.  References to any agreement or contract are to that agreement  or contract as amended, modified or supplemented from time to time in accordance with  the terms hereof and thereof; provided that with respect to any agreement or contract  listed on any schedules hereto, all such amendments, modifications or supplements must  also be listed in the appropriate schedule.  References to any Person include the  successors and permitted assigns of that Person.  References from or through any date  mean, unless otherwise specified, from and including or through and including,  respectively.  References to “law”, “laws” or to a particular statute or law shall be  deemed also to include any and all Applicable Laws.  ARTICLE 2  PURCHASE AND SALE  Section 2.01. Purchase and Sale.  Upon the terms and subject to the conditions  of this Agreement, in each case at the Closing, Seller agrees to sell the Seller Shares to  Buyers and Buyers agree to purchase from Seller the Seller Shares (which Seller Shares,  for the avoidance of doubt, shall include all dividend coupons relating to such Seller  Shares other than those that are expressly contemplated by Section 6.05(a) to be retained  by Seller).  The purchase price for the Seller Shares (the “Purchase Price”)  is US$2,200,000,000 in cash.  The Purchase Price shall be paid as provided in Section  2.02.  The Purchase Price will be allocated among the Seller Shares as set forth on  Section 2.01 of the Disclosure Schedule.  The parties agree (and agree to cause each of  their respective Affiliates) to utilize such allocation for all tax purposes, including the  filing of all tax returns and in the course of all tax-related proceedings, unless otherwise  required by a final determination of a Governmental Authority.  Section 2.02. Closing.  The closing (the “Closing”) of the purchase and sale of  the Seller Shares hereunder shall take place virtually, as soon as possible, but in no event  later than two Business Days, after satisfaction or, to the extent permissible, waiver by  the party or parties entitled to the benefit of the conditions set forth in Article 7 are  satisfied, or at such other time or place as Buyers and Seller may agree.  The transfer of  the certificates representing the Seller Shares shall take place at the Guatemalan office of  Consortium Legal: Ciudad de Guatemala. Diagonal 6 10-01 zona 10. Centro Gerencial  Las Margaritas Torre II, Oficina 1402A.  At the Closing, the parties shall take the  following actions simultaneously:  (a) Seller shall deliver to (i) Curaçao Buyer, duly endorsed certificates  for all of the Seller Shares except for one Seller Share of each Company,  





 






7    (ii) Luxembourg Buyer, duly endorsed certificates for one Seller Share of each  Company, (iii) Buyers all dividend coupons relating to the Seller Shares (other  than the Coupons),  and (iv) Buyers, the share registry book of each of the  Companies and letters to the Boards of Directors of each of the Companies  notifying the endorsement of such Seller Shares in favor of Buyers, as applicable.   Seller shall request the registration of the foregoing endorsements in the share  registry books of each of the Companies in favor of Buyers, as applicable.  (b) Subject to any withholding pursuant to Section 6.04 each Buyer  shall deliver to Seller its respective pro rata portion of the Purchase Price in  immediately available funds by wire transfer to a bank account of Seller that is  designated by Seller by notice to Buyers (or if not so designated, then by certified  or official bank check payable in immediately available funds to the order of  Seller in such amount); and  (c) The Buyers shall hold the Closing Shareholders’ Meetings (defined  below) in accordance with Section 6.06.  (d) The Buyers shall deliver to Seller a notarial certification  transcribing all the shareholders ́ resolutions adopted in the Closing Shareholders ́  Meetings.  (e) Seller shall execute and deliver to Buyers and Buyers shall cause  COMCEL to execute and deliver to Seller a signed counterpart to the Guarantee  Agreement.  (f) Buyers shall receive from Seller duly executed amendments to  each of the Miffin Notes, extending the expiration dates thereof to July 31, 2022  (the “Miffin Note Expiration Date”) and Seller shall have received duly  cancelled copies of the original Miffin Notes.  (g) Seller shall execute and deliver to Buyers and Buyers shall cause  COMCEL to execute and deliver an amendment to each Buyer Lease, in  substantially the form attached hereto as Exhibit D, extending the term of such  Buyer Lease to a date that is no earlier than the date that is five years from the  date hereof.  (h) Seller, Buyers and the Seller’s Custodian shall execute and deliver  to the other parties the Custody Agreement.  (i) Buyers shall cause COMCEL to execute and deliver to Seller’s  Custodian the COMCEL Note.  





 






8    ARTICLE 3  REPRESENTATIONS AND WARRANTIES OF SELLER  Seller represents and warrants to Buyers as of the date hereof and as of the  Closing Date that:  Section 3.01. Corporate Existence and Power.  Seller is a corporation duly  incorporated, validly existing and in good standing (or its equivalent) under the laws of  Panama.  Section 3.02. Capitalization.  Other than the Persons delivering Side Letters to  Buyers at the Closing, no Person owns, directly or indirectly, any interest in Seller.  Section 3.03. Corporate Authorization.  The execution, delivery and  performance by Seller of this Agreement and the consummation of the transactions  contemplated hereby are within the corporate powers of Seller and have been duly  authorized by all necessary corporate action on the part of Seller.  Assuming its execution  by Buyers, this Agreement constitutes a valid and binding agreement of Seller  enforceable against Seller in accordance with its terms (subject to applicable bankruptcy,  insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting  creditors’ rights generally and general principles of equity).  Section 3.04. Governmental Authorization.  The execution, delivery and  performance by Seller of this Agreement and the consummation of the transactions  contemplated hereby require no action by or in respect of, or filing by or with respect to  Seller with, any Governmental Authority.  Section 3.05. Noncontravention.  The execution, delivery and performance by  Seller of this Agreement and the consummation by Seller of the transactions  contemplated hereby do not and will not (i) violate the organizational documents of  Seller, (ii)  violate any Applicable Law, (iii) require any consent or other action by any  Person in each case under any agreement to which Seller or Miffin is a party or (iv) result  in the creation or imposition of any Lien on the Seller Shares.  Section 3.06. Ownership of Shares.  Seller is the record and beneficial owner of  the Seller Shares, free and clear of any Lien and any other limitation or restriction  (including any restriction on the right to vote, sell or otherwise dispose of the Seller  Shares), and will transfer and deliver to Buyers (in accordance with Section 2.02(a)) at  the Closing valid title to the Seller Shares free and clear of any Lien and any such  limitation or restriction.  Section 3.07. Litigation.  As of the date hereof, there is no action, suit, or  proceeding (or to the Knowledge of Seller any basis therefor) pending against, or to the  Knowledge of Seller, threatened against or affecting, Seller or any Related Party of Seller  before (or, in the case of threatened actions, suits or proceedings, would be before) any  Governmental Authority or arbitrator which in any manner challenges or seeks to  prevent, enjoin, alter or delay the transactions contemplated by this Agreement.  





 






9    Section 3.08. Court Orders.  There is no judgment, decree, injunction, rule or  order of any arbitrator or Governmental Authority outstanding against Seller or any  Related Party of Seller that in any manner seeks to prevent, enjoin, alter or delay the  consummation of the transactions contemplated by this Agreement.  Section 3.09. Related Party Transactions and Balances.    (a) Except as set forth in Section 3.09(a) of the Disclosure Schedule, there  are no material commercial agreements, contracts, commitments or other  arrangements of any kind between Seller or any Related Party of Seller, on the  one hand, and any (or more than one) Company or any of its Subsidiaries, on the  other hand (“Related Party Agreements”).  (b) Except as set forth in Section 3.09(b) of the Disclosure Schedule, there  are no claims for overdue amounts owing under any Related Party Agreement (i)  by any Company to Seller or any Related Party of Seller or (ii) by Seller or any  Related Party of Seller to any Company as of September 30, 2021.  Section 3.10. No Brokers.  No broker, finder or investment banker is entitled to  any brokerage, finder’s or other fee or commission in connection with the transactions  contemplated by this Agreement based upon arrangements made by or on behalf of  Seller.  ARTICLE 4  REPRESENTATIONS AND WARRANTIES OF BUYERS  Each Buyer represents and warrants to Seller as of the date hereof and as of the  Closing Date that:  Section 4.01. Corporate Existence and Power.  Such Buyer is duly formed,  validly existing and in good standing (or its equivalent) under the laws of its jurisdiction  of formation (or equivalent).  Section 4.02. Corporate Authorization.  The execution, delivery and  performance by such Buyer of this Agreement and the consummation of the transactions  contemplated hereby are within the corporate or other applicable powers of such Buyer  and have been duly authorized by all necessary corporate or other applicable action on  the part of such Buyer.  Assuming its execution by Seller and the other Buyer, this  Agreement constitutes a valid and binding agreement of such Buyer enforceable against  such Buyer in accordance with its terms (subject to applicable bankruptcy, insolvency,  fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights  generally and general principles of equity).  Section 4.03. Governmental Authorization.  The execution, delivery and  performance by such Buyer of this Agreement and the consummation of the transactions  contemplated hereby require no action by or in respect of, or filing by or with respect to  such Buyer with, any Governmental Authority.   





 






10    Section 4.04. Noncontravention.  The execution, delivery and performance by  such Buyer of this Agreement and the consummation by such Buyer of the transactions  contemplated hereby do not and will not (i) violate the organizational documents of such  Buyer, (ii) violate any Applicable Law or (iii) require any consent or other action by any  Person in each such case under any agreement to which such Buyer is a party.  Section 4.05. Litigation.  As of the date hereof, there is no action, suit or  proceeding (or to the Knowledge of such Buyer any basis therefor) pending against, or to  the Knowledge of such Buyer threatened against or affecting, such Buyer or any Related  Party of such Buyer before (or, in the case of threatened actions, suits or proceedings,  would be before) any arbitrator or any Governmental Authority which in any manner  challenges or seeks to prevent, enjoin, alter or delay the transactions contemplated by this  Agreement.  Section 4.06. Court Orders.  There is no judgment, decree, injunction, rule or  order of any arbitrator or Governmental Authority outstanding against such Buyer or any  Related Party of such Buyer that in any manner seeks to prevent, enjoin, alter or delay the  consummation of the transactions contemplated by this Agreement.  Section 4.07. Investment Purpose.  Such Buyer is acquiring the Seller Shares  solely for its own account for investment purposes and not with a view to, or for offer or  sale in connection with, any distribution thereof.  Such Buyer acknowledges that the  Seller Shares are not registered under the Securities Act of 1933, as amended, or any state  securities laws, and that the Seller Shares may not be transferred or sold except pursuant  to the registration provisions of the Securities Act of 1933, as amended or pursuant to an  applicable exemption therefrom and subject to state securities laws and regulations, as  applicable.  Such Buyer is able to bear the economic risk of holding the Seller Shares for  an indefinite period (including total loss of its investment), and has sufficient knowledge  and experience in financial and business matters so as to be capable of evaluating the  merits and risk of its investment.  Section 4.08. Independent Investigation.  Such Buyer acknowledges and agrees  that: (a) in making its decision to enter into this Agreement and to consummate the  transactions contemplated hereby, such Buyer has relied solely upon the Knowledge of  its Affiliates and its own prior Knowledge of the business, results of operations,  prospects, condition (financial or otherwise) or assets of the Companies and the express  representations and warranties of Seller set forth in Article 3 of this Agreement; and  (b) none of Seller, any Company or any other Person has made any representation or  warranty (express or implied) as to Seller, the Companies or this Agreement, except as  expressly set forth in Article 3 of this Agreement.  Section 4.09. No Brokers.  No broker, finder or investment banker is entitled to  any brokerage, finder’s or other fee or commission in connection with the transactions  contemplated by this Agreement based upon arrangements made by or on behalf of such  Buyer.  





 






11    ARTICLE 5  COVENANTS OF SELLER  Section 5.01. Noncompetition, etc.  (a) Seller agrees that for a period of five full years after the Closing Date,  neither it nor any of its Affiliates shall:  (i) engage, either directly or indirectly, as a principal or for its  own account or solely or jointly with others, or as stockholders in any  corporation or joint stock association, in any business that competes with  any Company as it exists on the Closing Date within any area or region set  forth on Section 5.01 of the Buyer Disclosure Schedule;   (ii) employ or solicit, or receive or accept the performance of  services by, any Person who is a current employee of any Company at the  time of such employment, solicitation, receipt or acceptance by Seller or  any of its Affiliates; or  (iii) take any action that would reasonably be expected to have  an effect that is adverse and material to (i) any Company’s then-existing or  prospective material business relationship with any Person (including,  without limitation, any customers or suppliers) known to such Seller or  Affiliate or (ii) the operation of the Business by any Company.  (b) Neither Seller nor any of its Affiliates shall take or purport to take  any action on behalf of any Company after the Closing Date, including, without  limitation, having any dealings, arrangements or communications with any third  party on behalf of (or purportedly on behalf of) such Company.  (c) If any provision contained in this Section shall for any reason be  held invalid, illegal or unenforceable in any respect, such invalidity, illegality or  unenforceability shall not affect any other provisions of this Section, but this  Section shall be construed as if such invalid, illegal or unenforceable provision  had never been contained herein; provided that, it is the intention of the parties  that if any of the restrictions or covenants contained herein is held to cover a  geographic area or to be for a length of time which is not permitted by applicable  law, or in any way construed to be too broad or to any extent invalid, such  provision shall not be construed to be null, void and of no effect, but to the extent  such provision would be valid or enforceable under Applicable Law, a court of  competent jurisdiction shall construe and interpret or reform this Section to  provide for a covenant having the maximum enforceable geographic area, time  period and other provisions (not greater than those contained herein) as shall be  valid and enforceable under such Applicable Law.  Seller acknowledges that  Buyers would be irreparably harmed by any breach of this Section and that there  would be no adequate remedy at law or in damages to compensate Buyers for any  such breach.  Seller agrees that Buyers shall be entitled to injunctive relief  





 






12    requiring specific performance by Seller of this Section, and Seller consents to the  entry thereof.  (d) Nothing in this Article 5 shall prohibit (A) Seller or any of its  Affiliates from purchasing or owning directly or indirectly (i) less than five  percent (5%) of the securities of any corporation or other Person, provided that  such ownership represents a passive investment and that the Seller or such  Affiliate is not a controlling person of, or a member of a group that controls, such  corporation or other Person (for purposes of the foregoing, “controlling” and  “control” have the same meanings given to such terms in the definition of  “Affiliate”) and (ii) any securities of a corporation or other Person through a  hedge fund, private equity fund, mutual fund or similar investment vehicle so long  as the Seller or such Affiliate is not actively involved in the management,  operations or business thereof or (B) a general solicitation by or on behalf Seller  or any of its Affiliates to the public of general advertising or similar methods of  solicitation by search firms not specifically directed at Company employees.    ARTICLE 6  COVENANTS OF BUYERS AND/OR SELLER  Section 6.01. Notices of Certain Events.  Each party shall (with respect to  clauses 6.01(c) and 6.01(d), solely prior to the Closing Date) promptly notify each other  party hereto of:  (a) any written notice or other communication received from any  Person alleging that the consent of such Person is or may be required in  connection with the transactions contemplated by this Agreement;  (b) any written notice or other communication received from any  Governmental Authority in connection with the transactions contemplated by this  Agreement;  (c) any actions, suits, claims, investigations or proceedings  commenced or, to its Knowledge threatened against, relating to or involving or  otherwise affecting such party that, if pending on the date of this Agreement,  would have been required to have been disclosed pursuant to Section 3.07 or  Section 4.05 or that relate to the consummation of the transactions contemplated  by this Agreement;  (d) any inaccuracy of any representation or warranty contained in this  Agreement that could reasonably be expected to cause the condition set forth in  Section 7.02(a) (if such party is Seller) or Section 7.03(a) (if such party is a  Buyer) not to be satisfied; and  (e) any failure of such party to comply with or satisfy any covenant,  condition or agreement to be complied with or satisfied by it hereunder;  





 






13    provided, however, that the delivery of any notice pursuant to this Section 6.01  shall not limit or otherwise affect the remedies available hereunder to any party hereto.  Section 6.02. Commercially Reasonable Best Efforts; Further Assurances.   Subject to the terms and conditions of this Agreement, Buyers and Seller shall use their  commercially reasonable best efforts to take, or cause to be taken, all actions and to do,  or cause to be done, all things necessary or required under Applicable Laws to  consummate the transactions contemplated by this Agreement, including (i) preparing  and filing as promptly as reasonably practicable with any Governmental Authority or  other third party all documentation to effect all necessary filings, notices, petitions,  statements, registrations, submissions of information, applications and other documents  required to be filed by it and (ii) obtaining and maintaining all approvals, consents,  registrations, permits, authorizations and other confirmations required to be obtained by it  or its Affiliates from any Governmental Authority or other third party that are necessary  or required to consummate the transactions contemplated by this Agreement; provided  that the parties hereto understand and agree that the commercially reasonable best efforts  of any party hereto shall not be deemed to include (i) entering into any settlement,  undertaking, consent decree, stipulation or agreement with any Governmental Authority  in connection with the transactions contemplated hereby or (ii) divesting or otherwise  holding separate (including by establishing a trust or otherwise) or taking any other  action (or otherwise agreeing to do any of the foregoing) with respect to any of its or the  Companies’ or any of their respective Affiliates’ businesses, assets or properties.  To the  extent within their respective power and control, prior to the Closing, Seller and Buyers  agree to cause each Company to execute and deliver such other documents, certificates,  agreements and other writings and to take such other actions as may be necessary or  required in order to consummate or implement expeditiously the transactions  contemplated by this Agreement.  After the Closing, Buyers agree to cause each  Company to execute and deliver such other documents, certificates, agreements and other  writings and to take such other actions as may be necessary or required in order to  consummate or implement expeditiously the transactions contemplated by this  Agreement.  Section 6.03. Certain Filings.  The parties shall cooperate with one another (i) in  determining whether any action by or in respect of, or filing with, any Governmental  Authority is required, or any actions, consents, approvals or waivers are required to be  obtained from parties to any material contracts, in connection with the consummation of  the transactions contemplated by this Agreement and (ii) in taking such actions or making  any such filings, furnishing information required in connection therewith and seeking  timely to obtain any such actions, consents, approvals or waivers.  Section 6.04. Payment of Capital Gains Tax.    (a) Buyers shall deduct and withhold, in the aggregate and in  accordance with their respective pro rata shares of the Purchase Price, $195  million (the “Initial Withheld Amount”) from the consideration otherwise  payable to Seller pursuant to this Agreement, which amount shall be used to pay  the Seller's capital gains tax derived from the sale of the Seller Shares.  Buyers  





 






14    shall cause COMCEL to (i) timely file with the corresponding Governmental  Authorities, on behalf of Seller, a tax declaration in accordance with the  calculation provided by PricewaterhouseCoopers; and (ii) make the Seller’s tax  payment on or before the Tax Due Date (as defined below).  At least five  Business Days prior to the Tax Due Date (as defined below), Seller shall cause  PricewaterhouseCoopers to deliver to Buyers its calculation of the total amount of  tax (including capital gains tax) Seller will owe to any Governmental Authority  pursuant to the transactions contemplated by this Agreement (the “Final Tax  Amount”).  If the Final Tax Amount is (i) greater than the Initial Withheld  Amount, then Buyers shall cause COMCEL to promptly (but no later than the  tenth Business Day of the month immediately following the month in which the  Closing Date takes place (the “Tax Due Date”)) pay to the applicable  Governmental Authorities the Final Tax Amount and Seller shall promptly (but  no later than the Tax Due Date) pay to Buyers any difference between the Initial  Withheld Amount and the Final Tax Amount; or (ii) less than or equal to the  Initial Withheld Amount, then Buyers shall cause COMCEL to promptly pay to  (x) the applicable Governmental Authorities the Final Tax Amount (but no later  than the Tax Due Date) and (y) Seller an amount equal to the Initial Withheld  Amount minus the Final Tax Amount (but no later than one Business Day after  the Tax Due Date).  To the extent that any amount is paid by Buyers, COMCEL  or Seller to any Governmental Authority (or withheld by Buyers) in accordance  with the terms of this Section 6.04, (i) such amount shall be treated for all  purposes of this Agreement as having been paid to Seller and (ii) the party paying  any such amount shall deliver to the other party (i) a copy of the tax declaration;  (ii) with respect to any payment made to a Guatemalan Governmental Authority,  a copy of the form issued by such Governmental Authority (known as SAT-2000)  or any other applicable form; and (iii) evidence of payment of such tax (together,  the “Documents Evidencing Payment of Tax”).  For the avoidance of doubt, in  the event that the Final Tax Amount is ultimately determined, with respect to any  Governmental Authority, to be (i) less than the true amount of tax owed to such  Governmental Authority, Seller shall be responsible for and shall pay any  additional tax owed to such Governmental Authority or (ii) greater than the true  amount of tax owed to such Governmental Authority, Seller shall be entitled to  any refund from such Governmental Authority in respect of such amount, and  Buyers shall cooperate with Seller in recovering such refund.  Buyer shall  cooperate and shall cause the Companies to cooperate with Seller to determine the  Final Tax Amount and, in particular, shall cause each of the Companies to timely  issue a certification of the book value of the Seller Shares, as of the Closing Date.  (b) To guarantee the payment of the taxes by Buyers and COMCEL,  Buyers shall cause COMCEL to issue a promissory note (the “COMCEL Note”),  which shall bear the legend “LIBRE DE PROTESTO”, payable on December 15,  2021, in favor of Seller for the Initial Withheld Amount. The Comcel Note shall  be delivered to Seller’s counsel (the “Seller’s Custodian”) for custody. Seller,  Buyers and the Seller’s Custodian shall enter into a custody agreement,  substantially in the form set forth in Exhibit A (the “Custody Agreement”), in  which Seller and Buyers shall agree that the Seller’s Custodian will deliver the  





 






15    Comcel Note to: (i) Buyers, upon the receipt of the Documents Evidencing  Payment of Tax within the term of and as provided for in the Custody Agreement  or (ii) Seller, if Buyers fail to deliver the Documents Evidencing Payment of Tax  within the term of and as provided for in the Custody Agreement.  Section 6.05. Dividends and Miffin Notes.  In relation to the Miffin Notes, the  parties agree that:   (a) Seller shall retain the rights over one coupon per each of the Seller  Shares issued by COMCEL (the “COMCEL Seller Shares”) identified with  coupon numbers (i) 26 of share certificate number 236; (ii) 26 of share certificate  number 237; (iii) 26 of share certificate number 238; (iv) 26 of share certificate  number 239; (v) 26 of share certificate number 240; (vi) 13 of share certificate  number 243; and (vii) 13 of share certificate number 244 (the “Coupons”).  (b) Buyers and Seller agree that the aggregate value of dividends  payable on the Coupons, which will be finally declared at the 2022 ordinary  shareholders meeting of COMCEL that shall take place no later than July 31,  2022 declaring dividends for the financial period ending December 31, 2021 (the  “2022 Meeting”), shall equal the aggregate principal amount of the Miffin Notes  plus any interest payable pursuant to the Miffin Notes plus the amount of income  tax that will be payable by Seller in respect and upon receipt of such amounts (the  “Coupon Aggregate Amount”) and Buyers shall cause the following resolutions  to be approved at the COMCEL shareholders’ meeting to be held as a condition to  the Closing: (x) a resolution designating the coupon number for each of the  COMCEL Seller Share’s certificates that will be used for the purposes of the  payment of dividends corresponding to such share certificates in the 2022  Meeting and the individual value of dividends payable against such coupon, the  aggregate amount of which shall be equal to the Coupon Aggregate Amount, (y) a  resolution authorizing and irrevocably instructing (the “Irrevocable  Instruction”) COMCEL to, promptly after the 2022 Meeting, pay the  aforementioned dividends contemplated by the foregoing clause (x) and, upon  such payment of dividends, (i) use such dividends to pay off the Miffin Notes in  full, at which time the Miffin Notes shall be deemed fully canceled and any  dividends owed to Seller in connection to the Coupons fully paid and (ii) withhold  and pay any and all taxes payable in connection with such payment of dividends.    (c) The last date on which the 2022 Meeting may be held is the Miffin  Note Expiration Date (defined below); provided that if the Miffin Notes are  amended to have a later expiration date, the foregoing deadline shall  automatically be extended to such later expiration date.  (d) At Closing, COMCEL and Seller shall enter into a guarantee  agreement, substantially in the form of Exhibit B (the “Guarantee Agreement”),  pursuant to which they shall agree that COMCEL shall agree to be jointly liable to  Seller for damages equivalent to the Coupon Aggregate Amount if: (x) Buyers do  





 






16    not hold the 2022 Meeting by the Expiration Date or (y) COMCEL does not carry  out all actions set forth in the Irrevocable Instruction.    (e) Buyers shall cause (x) a shareholder resolution be passed at the  2022 Meeting declaring dividends in favor of Seller as holder of the Coupons in  an amount equal to the Coupon Aggregate Amount and (y) COMCEL, promptly  following the 2022 Meeting, to take all actions set forth in the Irrevocable  Instruction.  If after taking all actions set forth in the Irrevocable Instruction, any  principal or interest payment with respect to the Miffin Notes remains  outstanding, Buyers shall cause COMCEL to forfeit such amounts to Seller.  (f) Promptly after the payment of taxes in accordance with the  Irrevocable Instruction, Buyers shall provide Seller with evidence of such  payment.   (g) At the Closing, Buyers shall cause COMCEL to mark each Miffin  Note with a stamp stating it is non-negotiable and has been cancelled and Seller  shall mark the Coupons as non-negotiable and cancelled.  Buyers shall cause  COMCEL not to assign or endorse the Miffin Notes to any third party and Seller  shall not assign or endorse the Coupons.  Until the 2022 Meeting and the  complete performance by COMCEL of the actions contemplated by the  Irrevocable Instruction, Seller shall retain the Coupons marked as cancelled and  COMCEL shall retain the Miffin Notes marked as cancelled.  Thereafter, Seller  shall promptly deliver the Coupons to COMCEL and COMCEL shall deliver the  Miffin Notes to Seller.   (h) Nothing contained in this Section 6.05 shall be construed as  requiring any additional amount to be paid by (i) Seller in connection with the  Miffin Notes, including interest accrued under the Miffin Notes, until the  dividend payment date, other than by delivery of the Coupons or (ii) Buyers or  COMCEL in connection with the Coupons, other than the Coupon Aggregate  Amount; provided that, any income tax payable in respect of the Coupon  Aggregate Amount that would result in the amount equal to (x) the Coupon  Aggregate Amount minus such income tax being less than (y) the aggregate  principal amount of the Miffin Notes plus any interest payable pursuant to the  Miffin Notes, shall be added to the Coupon Aggregate Amount assigned to the  Coupons.  Section 6.06. Closing Shareholders’ Meetings.  Buyers and Seller agree in  relation to the shareholders meetings that will be held for each of the Companies as a  condition to the Closing (the “Condition to Closing Shareholders’ Meetings”) and at  the Closing for each Company (the “Closing Shareholders’ Meetings”):  (a) The Condition to Closing Shareholders’ Meetings shall be held by  the then current shareholders and the Closing Shareholders’ Meetings shall be  held by Buyers, provided however that the C2N Closing Shareholders’ Meeting  shall be held by Millicom Spain S.L. and Curaçao Buyer.  The minutes of the  





 






17    Condition to Closing Shareholders’ Meetings and Closing Shareholders’ Meetings  shall be substantially in the form of Exhibit C.  (b) Curaçao Buyer shall receive a proxy from Luxembourg Buyer and  from Millicom Spain, S.L. to hold the Closing Shareholders’ Meetings, which  will be held in Guatemala City, by: (x) in representation of Buyer, any of the  holders of the power of attorney incorporated in public deed 118 authorized on  November 30, 2105 by Maria Fernanda Morales Porres; (y) in representation of  Luxembourg Buyer, any of the holders of the power of attorney incorporated in  public deed 118 authorized on November 30, 2105 by Maria Fernanda Morales  Porres through a proxy granted by the Luxembourg Buyer, (z) in representation of  Millicom Spain, S.L. any of the holders of the power of attorney incorporated in  public deed 118 authorized on November 30, 2105 by Maria Fernanda Morales  Porres through a proxy granted by Millicom Spain, S.L.  (c) At the Condition to Closing Shareholders’ Meetings, Buyers shall  appoint a substitute director to replace all resigning board members and shall fill  any and all vacant committee positions resulting from the resignation of any  directors of the Companies appointed by Seller or its Affiliates.  (d) At the Condition to Closing Shareholders’ Meetings, Seller and  Buyers shall vote to, among other matters, pass a resolution to grant a full release  in favor of the Seller Released Parties. At the Closing Shareholders’ Meetings,  Buyers shall vote to, among other matters, pass a resolution to grant a full release  in favor of the resigning Vice-President, Third Members and their respective  substitutes from the board of each Company, as board members of each  Company.  Section 6.07. Registration of Buyer Leases; Revocation of Appointments.  Fundacion Tigo.   (a) Buyers shall cause the Companies to present each Buyer Lease to  the Real Estate Registry not later than the date that is 30 days after the Closing  Date.  Buyers undertake to obtain registration of each Buyer Lease at the Real  Estate Registry and, promptly after obtaining registration of each Buyer Lease,  provide a copy thereof to Seller.  Buyers shall cause the Companies to bear the  costs of registration of such lease agreements.   (b) Buyers shall cause the Companies to revoke and cancel any  registered appointments of the Related Parties of Seller as directors or attorneys in  fact of the Companies which may be registered at any public registry in  Guatemala.  (c) In regards to Fundacion TIGO (the “Foundation”), Buyers and  Seller shall mutually cooperate to (x) promptly after the Closing, hold a General  Meeting of Founders and Benefactors of the Foundation, in which the resignation  letters of the Related Parties of Seller shall be approved and in which the Related  





 






18    Parties of Seller shall be discharged from any and all obligations from their  positions as Founding Members, Benefactors, Board Members, Committee  Members or any other position they may hold or held in the past at the  Foundation, to the maximum extent permitted by the law and (y) amend the  bylaws of the Foundation, subject to the requirements of the applicable  Governmental Authorities, to exclude the Related Parties of Seller as Benefactors  of the Foundation or from any other position they may hold and to disassociate  them from the Foundation. Buyers and Seller shall use their best efforts to  accomplish these matters as soon as practicable.  ARTICLE 7  CONDITIONS TO CLOSING  Section 7.01. Conditions to Obligations of Buyers and Seller.  The obligations of  Buyers and Seller to consummate the Closing are subject to the absence of any provision  of any Applicable Law prohibiting the consummation of the Closing.  Section 7.02. Conditions to Obligation of Buyers.  The obligation of Buyers to  consummate the Closing is subject to the satisfaction of the following further conditions:  (a) (i) Seller shall have performed in all material respects all of its  obligations hereunder required to be performed by it on or prior to the Closing  Date, (ii) the representations and warranties of Seller contained in this Agreement  and in any certificate or other writing delivered by Seller pursuant hereto shall be  true in all material respects at and as of the Closing Date as if made at and as of  such date and (iii) Buyers shall have received a certificate signed by Seller to the  foregoing effect;  (b) Buyers shall have received all certificates or other documents they  may reasonably request relating to the existence of Seller and the authority of  Seller to enter into and perform its obligations under this Agreement, all in form  and substance reasonably satisfactory to Buyers;  (c) Buyers shall have received a duly executed copy of the minutes of  the Condition to Closing Shareholders’ Meetings;  (d) All necessary shareholder, board or other action required under  Guatemalan law in order to make the provisions of Section 10.01 legal, valid and  enforceable shall have been taken in Guatemala and certified copies of the  minutes of such action, substantially in the form of the attached Exhibit C, shall  have been delivered to Buyers;  (e) Buyers shall have received a duly executed Side Letter from all  Persons who own directly or indirectly any equity interests in Seller (the “Seller  Owners”); and  





 






19    (f) Buyers shall have received the resignations of the Vice-Presidents,  Third Member and their respective substitutes from the board of directors of each  Company.  Section 7.03. Conditions to Obligation of Seller.  The obligation of Seller to  consummate the Closing is subject to the satisfaction of the following further conditions:  (a) (i) Buyers shall have performed in all material respects all of their  obligations hereunder required to be performed by them on or prior to the Closing  Date, (ii) the representations and warranties of each Buyer contained in this  Agreement and in any certificate or other writing delivered by such Buyer  pursuant hereto shall be true in all material respects at and as of the Closing Date  as if made at and as of such date and (iii) Seller shall have received a certificate  signed by an authorized representative of each Buyer to the foregoing effect;  (b) Seller shall have received all certificates or other documents it may  reasonably request relating to the existence of each Buyer and the authority of  each Buyer to enter into and perform its obligations under this Agreement, all in  form and substance reasonably satisfactory to Seller;  (c) Seller shall have received a copy of the public announcement to be  issued by Buyer and contemplated by Section 13.12; and  (d) Seller shall have received a certification transcribing all the  shareholders’ resolutions adopted in the Condition to Closing Shareholders’  Meetings.  ARTICLE 8  SURVIVAL; INDEMNIFICATION  Section 8.01. Survival.  The representations and warranties of the parties hereto  contained in this Agreement or in any certificate or other writing delivered pursuant  hereto or in connection herewith shall survive the Closing for two years.  The covenants  and agreements of the parties hereto contained in this Agreement shall survive the  Closing indefinitely or for the shorter period explicitly specified therein.   Notwithstanding the preceding sentences, any breach of a representation or warranty in  respect of which indemnity may be sought under this Agreement shall survive the time at  which it would otherwise terminate pursuant to the preceding sentences, if notice of  (including in reasonable detail the facts and circumstances surrounding) the inaccuracy or  breach thereof giving rise to such right of indemnity shall have been given to the party  against whom such indemnity may be sought prior to such time.  Section 8.02. Indemnification.  (a) Effective at and after the Closing, subject to  the other terms and conditions of this Article 8, Seller hereby indemnifies Buyers, their  respective Affiliates and their respective successors and assignees and, effective at the  Closing, without duplication, each Company and their respective successors and  assignees against and agrees to hold each of them harmless from any and all damage,  





 






20    loss, liability and expense (including reasonable expenses of investigation and reasonable  attorneys’ fees and expenses in connection with any action, suit or proceeding, but  excluding any punitive, incidental, indirect or consequential damages, losses, liabilities or  expenses or any lost profits, diminution in value or any damages based on any type of  multiple) (“Damages”), incurred or suffered by Buyers, any such Affiliate, any Company  or any of their respective successors and assignees arising out of any (i) breach of a  warranty of Seller contained in this Agreement (each such breach, a “Seller Warranty  Breach”) or (ii) any breach or non-fulfillment of any covenant, agreement or obligation  to be performed by Seller pursuant to this Agreement; provided that with respect to  indemnification by Seller for Seller Warranty Breaches pursuant to this Section 8.02,  Seller’s maximum aggregate liability shall not exceed the Purchase Price and Seller’s  maximum aggregate liability for all Seller Warranty Breaches not involving a  Fundamental Warranty shall not exceed $110 million.    (b) Effective at and after the Closing, subject to the other terms and  conditions of this Article 8, Buyers hereby jointly and severally indemnify Seller,  its Affiliates, and their respective successors and assigns against and agrees to  hold each of them harmless from any and all Damages incurred or suffered by  Seller or any such Affiliate or any of their respective successors and assigns  arising out of any (i) any breach of a warranty of either Buyer contained in this  Agreement (each such breach, a “Buyer Warranty Breach”), (ii) any breach or  non-fulfillment of any covenant, agreement or obligation to be performed by  either Buyer pursuant to this Agreement, or (iii) the failure of either Buyer to  cause any Company to obtain the consent or waiver of any Person required as a  result of the execution, delivery and performance of this Agreement and the  consummation of the transactions contemplated hereby; provided that with  respect to indemnification by Buyers for Buyer Warranty Breaches pursuant to  this Section 8.02, Buyers’ collective and aggregate maximum liability shall not  exceed the Purchase Price and Buyers’ maximum collective and aggregate  liability for all Buyer Warranty Breaches not involving a Fundamental Warranty  shall not exceed $110 million.  (c) The party making a claim under this Article 8 is referred to as the  “Indemnified Party”, and the party against whom such claims are asserted under  this Article 8 is referred to as the “Indemnifying Party”. The indemnification  provided for in this Section 8.02 shall be subject to the following limitations:  (i) The Indemnifying Party shall not be liable to the  Indemnified Party for indemnification under Section 8.02(a)(i) or 8.02(b)(i), as  the case may be,  with respect to a breach of a warranty that is not a Fundamental  Warranty until the aggregate amount of all Damages in respect of indemnification  under Section 8.02(a)(i) or 8.02(b)(i), exceeds $22 million (the “Deductible”), in  which event the Indemnifying Party shall be required to pay or be liable for all  such Damages from the first dollar. With respect to any claim as to which the  Indemnified Party may be entitled to indemnification under Section 8.02(a)(i) or  8.02(b)(i), as the case may be, with respect to a breach of a warranty that is not a  Fundamental Warranty the Indemnifying Party shall not be liable for any  





 






21    individual or series of related Damages which do not exceed $750,000 (which  Damages shall not be counted toward the Deductible).  (ii) Each Indemnified Party shall take, and cause its Affiliates  to take, all reasonable steps to mitigate any Damages upon becoming aware of  any event or circumstance that would be reasonably expected to, or does, give rise  thereto, including incurring costs only to the minimum extent necessary to remedy  the breach that gives rise to such Damages.  Section 8.03. Third Party Claim Procedures.  (a) The Indemnified Party agrees  to give prompt written notice in writing to the Indemnifying Party of the assertion of any  claim or the commencement of any suit, action or proceeding by any third party (“Third  Party Claim”) in respect of which indemnity may reasonably be expected to be sought  under this Article 8.  Such notice shall set forth in reasonable detail such Third Party  Claim and the basis for indemnification and, to the extent permitted by Applicable Law,  include copies of any related notices given by any Governmental Authority (taking into  account the information then available to the Indemnified Party).  The failure to so notify  the Indemnifying Party shall not relieve the Indemnifying Party of its obligations  hereunder, except to the extent such failure shall have materially and adversely  prejudiced the Indemnifying Party.  Such notice by the Indemnified Party shall describe  the Third-Party Claim in reasonable detail, shall include copies of all material written  evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the  Damages that has been or may be sustained by the Indemnified Party.   (b) The Indemnifying Party shall be entitled to participate in the  defense of any Third Party Claim and, subject to the limitations set forth in this  Section, shall be entitled to control and appoint lead counsel for such defense, in  each case at its own expense; provided that prior to assuming control of such  defense, the Indemnifying Party must acknowledge that it would have an  indemnity obligation for the Damages resulting from such Third Party Claim as  provided under this Article 8.  (c) The Indemnifying Party shall not be entitled to assume or maintain  control of the defense of any Third Party Claim and shall pay the reasonable fees  and expenses of counsel retained by the Indemnified Party if (i) the Indemnifying  Party does not deliver the acknowledgment referred to in Section 8.03(b) within  30 days of receipt of notice of the Third Party Claim pursuant to Section 8.03(a),  (ii) the Third Party Claim relates to or arises in connection with any criminal  proceeding, action, indictment, allegation or investigation, (iii) to the extent, and  only to the extent, that the Third Party Claim seeks an injunction or equitable  relief against the Indemnified Party or any of its Affiliates or (iv) the  Indemnifying Party has failed or is failing to prosecute or defend the Third Party  Claim in good faith (in which case the Indemnifying Party shall be entitled to  subsequently assume or maintain control of the defense of such Third Party Claim  to the extent the Indemnified Party fails to prosecute or defend such Third Party  Claim in good faith). The Indemnified Party agrees, without the prior written  consent of Seller, not to settle or admit liability or culpability in connection with  





 






22    any Third Party Claim or related criminal proceeding, action, indictment,  allegation or investigation referenced in the foregoing clause (ii) to the extent any  such settlement or admission would reasonably be expected to adversely prejudice  or impact Seller or any of its Related Parties.  (d) If the Indemnifying Party shall assume the control of the defense  of any Third Party Claim in accordance with the provisions of this Section 8.03,  the Indemnifying Party shall obtain the prior written consent of the Indemnified  Party before entering into any settlement of such Third Party Claim (which  consent shall not be unreasonably withheld, delayed or conditioned).  (e) In circumstances where the Indemnifying Party is controlling the  defense of a Third Party Claim in accordance with paragraphs (b) and (c) above,  the Indemnified Party shall be entitled to participate in the defense of any Third  Party Claim and to employ one separate counsel of its choice for such purpose, in  which case the fees and expenses of such separate counsel shall be borne by the  Indemnified Party; provided that in such event, the Indemnifying Party shall pay  the fees and expenses of such separate counsel (i) incurred by the Indemnified  Party prior to the date the Indemnifying Party assumes control of the defense of  the Third Party Claim or (ii) if representation of both the Indemnifying Party and  the Indemnified Party by the same counsel would create a conflict of interest.  (f) Each party shall cooperate, and cause their respective Affiliates to  cooperate, in the defense or prosecution of any Third Party Claim and shall  furnish or cause to be furnished such records, information and testimony, and  attend such conferences, discovery proceedings, hearings, trials or appeals, as  may be reasonably requested in connection therewith.  Section 8.04. Direct Claim Procedures.  In the event an Indemnified Party has a  claim for indemnity under Article 8 against an Indemnifying Party that does not involve a  Third Party Claim (a “Direct Claim”), the Indemnified Party agrees to give prompt  notice in writing of such claim to the Indemnifying Party.  Such notice shall set forth in  reasonable detail such claim and the basis for indemnification (taking into account the  information then available to the Indemnified Party).  The failure to so notify the  Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder,  except to the extent such failure shall have materially and adversely prejudiced the  Indemnifying Party.  The Indemnifying Party shall have 30 days after its receipt of such  notice to respond in writing to such Direct Claim. During such 30-day period, the  Indemnified Party shall allow the Indemnifying Party and its professional advisors to  investigate the matter or circumstance alleged to give rise to the Direct Claim, and  whether and to what extent any amount is payable in respect of the Direct Claim and the  Indemnified Party shall assist the Indemnifying Party’s investigation by giving such  information and assistance (including access to each Company’s premises and personnel  and the right to examine and copy any accounts, documents or records) as the  Indemnifying Party or any of its professional advisors may reasonably request.  If the  Indemnifying Party does not so respond within such 30 day period, the Indemnifying  Party shall be deemed to have rejected such claim, in which case the Indemnified Party  





 






23    shall be free to pursue such remedies as may be available to the Indemnified Party on the  terms and subject to the provisions of this Agreement.  Section 8.05. Exclusive Remedies.  Subject to Section 13.11, the parties  acknowledge and agree that their sole and exclusive remedy with respect to any and all  claims (other than claims arising from Fraud on the part of a party hereto in connection  with the transactions contemplated by this Agreement) for any breach of any  representation, warranty, covenant, agreement or obligation set forth herein or otherwise  relating to the subject matter of this Agreement, shall be pursuant to the indemnification  provisions set forth in this Article 8. In furtherance of the foregoing, except with respect  to Section 13.11, each party hereby waives, to the fullest extent permitted under law, any  and all rights, claims and causes of action for any breach of any representation, warranty,  covenant, agreement or obligation set forth herein or otherwise relating to the subject  matter of this Agreement it may have against the other parties hereto and their Affiliates  and each of their respective representatives arising under or based upon any law, except  pursuant to the indemnification provisions set forth in this Article 8. Nothing in this  Section 8.05 shall limit any Person’s right to seek and obtain any equitable relief to which  any Person shall be entitled pursuant to Section 13.11 or to seek any remedy on account  of Fraud by any party hereto pursuant to Section 13.06.  ARTICLE 9  TERMINATION  Section 9.01. Grounds for Termination.  This Agreement may be terminated at  any time prior to the Closing:  (a) by mutual written agreement of Seller and Buyers; or  (b) by either Seller or Buyers if there shall be any Applicable Law that  makes consummation of the transactions contemplated hereby illegal or otherwise  prohibited or if consummation of the transactions contemplated hereby would  violate any nonappealable final order, decree or judgment of any Governmental  Authority binding on the terminating party having competent jurisdiction.  The party desiring to terminate this Agreement pursuant to Section 9.01(b) shall give  notice of such termination to the other party.  Section 9.02. Effect of Termination.  If this Agreement is terminated as permitted  by Section 9.01, such termination shall be without liability of any party (or any  stockholder, director, officer, employee, agent, consultant or representative of such party)  to any other party to this Agreement; provided that if such termination shall result from  the willful breach by any party hereto of any representation or warranty or agreement  contained herein, such party shall be fully liable for any and all Damages incurred or  suffered by any other party as a result of such failure or breach.  The provisions of  Sections 13.03, 13.05, 13.06, 13.07, 13.08 and 13.09 shall survive any termination hereof  pursuant to Section 9.01.  





 






24    ARTICLE 10  WAIVER AND RELEASE; BUYERS AND COMPANY INDEMNIFICATION   Section 10.01. Release by Seller.  Except as provided in Section 10.03, effective  as of the Closing, Seller, for itself and on behalf of its Affiliates hereby absolutely,  unconditionally and irrevocably WAIVES, RELEASES and FOREVER DISCHARGES  (i) each Company, (ii) Buyers, (iii) the respective Affiliates of the Companies and Buyers  and (iv) the current and former officers and directors of the Persons identified in clauses  (i), (ii) and (iii) (collectively, “Seller Released Parties”) from any and all Claims that  Seller or any of its Affiliates may have against any Seller Released Party because of  anything done, omitted, suffered or allowed to be done by a Seller Released Party prior to  the Closing (except as provided in Section 10.03, the “Seller Released Claims”), and  waives all rights that Seller or any of its Affiliates may now or in the future have with  respect to any Seller Released Claims.  The Seller agrees to take and cause its Affiliates  to take all necessary action under or required by the laws of Guatemala (including  execution and delivery of any documents and the taking of any board of director,  shareholder or other meetings), to give effect to the foregoing releases.  Section 10.02. Release by Buyers.  Except as provided in Section 10.03, effective  as of the Closing, each Buyer for itself and on behalf of its Affiliates hereby absolutely,  unconditionally and irrevocably WAIVES, RELEASES and FOREVER DISCHARGES  (i) Seller, (ii) the Affiliates of Seller, (iii) the current and former officers and directors of  the Persons identified in clauses (i) and (ii), (iv) the current and former directors of the  Companies appointed by the Seller and its Affiliates (including any director of any  Company who is also Vice President of such Company) and (v) the current chief  executive officer of COMCEL (the “CEO” and together with the Persons covered by the  foregoing clauses (i)-(iv), the “Buyer Released Parties”) from any and all Claims that  such Buyer and its Affiliates may have against any Buyer Released Party because of  anything done, omitted, suffered or allowed to be done by a Buyer Released Party prior  to the Closing (except as provided in Section 10.03, the “Buyer Released Claims” and,  together with the Seller Released Claims, the “Released Claims”), and waives all rights  that such Buyer and its Affiliates may now or in the future have with respect to any  Buyer Released Claims.  Each Buyer agrees to take and cause its Affiliates to take all  necessary action under or required by the laws of Guatemala (including execution and  delivery of any documents and the taking of any board of director, shareholder or other  meetings), to give effect to the foregoing releases.  Promptly after the Closing, Buyers  shall cause the Companies to execute a release in favor of Buyer Released Parties on the  same terms and conditions set forth in this Section 10.02.  Nothing in this Section 10.02  shall be construed to limit the Buyers’ ability to terminate, with or without cause, the  CEO’s relationship, as an employee or otherwise, with COMCEL or any Company.  Section 10.03. Exceptions.  Notwithstanding anything to the contrary provided in  Section 10.01 and Section 10.02, the Released Claims shall not include, and nothing  herein shall waive, release or discharge in any manner, or constitute a defense to (i) any  Claim arising under this Agreement or (ii) with respect to only the CEO, any Claims by  any Buyer, any Company or any of their respective Affiliates seeking compensation for,  and only to the extent of, any monetary penalty imposed on any of them in connection  





 






25    with a final judgment based on conduct by the CEO that is adjudged to be criminal by a  criminal court of competent jurisdiction; provided that any Claim described in clause (ii)  of this paragraph must be brought within one year of the final judgment that serves as the  basis for such Claim.  Section 10.04. Waiver of Legal Rights.  EACH PARTY EXPRESSLY WAIVES  ANY AND ALL RIGHTS IT HAS UNDER ANY STATE OR FEDERAL STATUTE  OR ANY COMMON LAW PRINCIPLE OF SIMILAR EFFECT, THAT PROVIDES  THAT THE FOREGOING WAIVER, RELEASE AND DISCHARGE DOES NOT  EXTEND TO CLAIMS THAT IT DOES NOT KNOW OR SUSPECT TO EXIST IN  ITS FAVOR AT THE TIME OF THE CLOSING, WHICH IF KNOWN BY IT WOULD  HAVE MATERIALLY AFFECTED ITS SETTLEMENT OF THE RELEASED  CLAIMS. EACH PARTY ACKNOWLEDGES THAT IT MAY HEREAFTER  DISCOVER FACTS DIFFERENT FROM, OR IN ADDITION TO, THOSE WHICH IT  KNOWS OR BELIEVES TO BE TRUE WITH RESPECT TO THE RELEASED  CLAIMS, AND AGREES THAT THE RELEASES CONTEMPLATED BY THIS  ARTICLE 10 SHALL BE AND REMAIN EFFECTIVE IN ALL RESPECTS  NOTWITHSTANDING SUCH DIFFERENT OR ADDITIONAL FACTS OR THE  DISCOVERY THEREOF. SUBJECT TO SECTION 10.03, EACH WAIVER,  RELEASE AND DISCHARGE OF ANY CLAIM UNDER THE RELEASES  CONTEMPLATED BY THIS ARTICLE 10 BENEFITING ANY PERSON OR  ENTITY SHALL APPLY TO SUCH CLAIM, WHETHER SUCH CLAIM IS CAUSED  IN WHOLE OR IN PART BY THE NEGLIGENCE (WHETHER SOLE, JOINT OR  CONCURRENT), STRICT LIABILITY OR OTHER LEGAL FAULT OF SUCH  PERSON OR ENTITY.  Section 10.05. No Assignment of Released Claims.  (a) Each Buyer represents and  warrants to Seller that, subject to Section 10.03, the release set forth in Section 10.02 is  binding upon it (and it has the authority to provide releases of its Affiliates), such Buyer  has not in any manner assigned, pledged or otherwise voluntarily or involuntarily  disposed of or transferred to any Person any interest in any Buyer Released Claim,  Buyers (or their Affiliates) are the sole and exclusive owners of all Buyer Released  Claims and each Buyer Released Claim is hereby fully and finally discharged, settled and  satisfied; and (b) Seller represents and warrants to Buyers that the release set forth in  Section 10.01 is binding upon Seller (and Seller has the authority to provide releases of  Seller’s Affiliates), Seller has not in any manner assigned, pledged, or otherwise  voluntarily or involuntarily disposed of or transferred to any Person any interest in any  Seller Released Claim, Seller (or an Affiliate thereof) is the sole and exclusive owner of  all Seller Released Claims and each Seller Released Claim is hereby fully and finally  discharged, settled and satisfied.  Section 10.06. No Admission.  This Release does not constitute evidence of  unlawful conduct or wrongdoing by any Seller or any Company or Buyers or any  Affiliate of Seller or any Company or Buyers.  Section 10.07. Buyer Indemnification.  Each Buyer for itself and on behalf of its  Affiliates agrees to the maximum extent permitted by Applicable Law, to indemnify each  





 






26    Person who has served as a director of any Company and that was appointed by Seller or  any of its Affiliates and any of such Person’s respective successors and assigns (each a  “Company Person Indemnitee”) against and agrees to hold each such Company Person  Indemnitee harmless from, any and all Damages incurred or suffered by them arising out  of any actions or inactions taken by any Company Person Indemnitee as a director of any  Company; provided that each Buyer’s foregoing indemnification obligation shall not  apply to the extent arising out of the intentional misconduct of such Person.  Each Buyer  for itself and on behalf of its Affiliates further agrees to cooperate fully with each  Company Person Indemnitee in all reasonable respects in connection with any Claim  relating to such Damages, including furnishing any assistance, information and  documents as may be reasonably requested by a Company Person Indemnitee.  Promptly  after the Closing, Buyer shall cause the Companies to execute an indemnification  agreement on the terms and conditions set forth in this Section 10.07; provided that each  Company shall only be obligated to indemnify those Persons who have served as a  director of such Company.  Section 10.08. Waiver with Respect to Seller Shares.  Curaçao Buyer and Seller  hereby waive any and all claims they may have against each Company and any officer  thereof arising out of or in connection with the failure of any Seller Share certificate of  such Company to comply with the requirements of such Company’s bylaws.  ARTICLE 11  CONFIDENTIALITY  Section 11.01. Confidential Information.    (a) Seller and each Buyer acknowledges that it or its Affiliates and its  directors, officers, agents or employees has made and may make available in the  future (i) to Buyers, their directors, officers, agents or employees, the Companies,  their respective directors, officers, agents or employees and the Affiliates of such  Buyers, with respect to Seller, its Affiliates and the directors, officers, agents or  employees of Seller and (ii) to Seller, its Affiliates and their respective directors,  officers, agents or employees, with respect to Buyers, their Affiliates and the  directors, officers, agents or employees of Buyers, information about their activities  within and on behalf of the Companies, their contractual and commercial  relationships and relationships to third parties, Governmental Authorities and  within their relationships, business practices and plans, including, but not limited  to, business strategies, risk characteristics, financial information, technical  information, systems information and consumer research and/or certain  information and material identified by it as “Confidential” (collectively,  “Confidential Information”). Confidential Information may be written, oral,  recorded, on tapes or computer format. As used herein, a party disclosing  Confidential Information may be referred to as the “Disclosing Party” and the  party receiving such Confidential Information may be referred to as the “Receiving  Party”.  





 






27    (b) Seller and each Buyer acknowledge that all Confidential  Information furnished by a Disclosing Party is considered a matter of strict  confidentiality.  (c) Seller and each Buyer agrees that it will employ the same degree of  care to preserving the Confidential Information received from the Disclosing Party  as it would apply to its own comparable confidential information (but in no event  will the Receiving Party exercise less than a reasonable degree of care in handling  Confidential Information). Without limiting the generality of the foregoing, each  party further agrees that it will not distribute, disclose or convey to third parties any  Confidential Information, except as specifically provided in this Article 11.  (d) Promptly after the Closing, Buyer shall cause the Companies to  execute a confidentiality agreement in favor of Seller covering the terms and  conditions set forth in this Article 11.  Section 11.02. Disclosure of Confidential Information  (a) Seller and each Buyer agree that:  (i)  its employees, agents, contractors, professional  advisors (including, without limitation, its attorneys, tax advisors, bankers  and accountants) and, with respect to such Buyer, potential sources of  financing of such Buyer or its Affiliates, shall be granted access to  Confidential Information as needed in connection with the performance of  their respective duties and obligations.  (ii)  Except as set forth in Section 11.03(b), Confidential  Information shall not be distributed, disclosed or conveyed to any third  party (inclusive of agents and subcontractors) unless such third party  certifies its agreement to be bound by the provisions of this Article 11.  (iii) it shall not make use of any Confidential Information  received from the other party for the benefit of a third party.  Section 11.03. Exceptions to Duty to Keep Confidential.    (a) The obligations set forth in this Article 11 shall not apply to  (i) Confidential Information of a Disclosing Party:  (1) which has come into the public domain through  no fault or action of the Receiving Party;  (2) which was lawfully disclosed to the Receiving  Party by a third party; or  





 






28    (3) which was independently developed by the  Receiving Party not otherwise in violation or breach of this  Agreement; or  (ii) any disclosure specifically authorized in writing by the  Disclosing Party.  (b) In the event that the Receiving Party becomes subject, is requested  or required or becomes legally compelled (by deposition, interrogatory, request  for document, subpoena, summons, warrant, order, civil investigative demand or  similar process or otherwise pursuant to a requirement a Governmental Authority)  to disclose any of the Confidential Information, the Receiving Party shall (to the  extent legally permissible) provide the Disclosing Party with prompt prior written  notice of such request or requirement so that the Disclosing Party may seek a  protective order or other appropriate remedy and/or waive compliance with the  terms of this Agreement (at the Disclosing Party’s sole expense).  In the event that  such protective order or other appropriate remedy is not obtained or that the  Disclosing Party waives compliance with the provisions hereof (or does not  promptly seek such protective order), the Receiving Party may furnish to such  Governmental Authority without liability hereunder that portion of the  Confidential Information which the Receiving Party is advised by counsel (which  may be internal counsel) is legally required.  (c) Nothing in this Article 11 shall be construed to prohibit or limit  any Buyer’s or Company’s ability to disclose information (including Confidential  Information) related to any Company or the Business.  Section 11.04. Return of Confidential Information.  (a) Upon the written request of the Disclosing Party, the Receiving  Party shall promptly return to the Disclosing Party all written Confidential  Information in its possession or in the possession of its employees or  representatives or, at the Disclosing Party’s option, will destroy, and direct its  representatives to destroy, all such Confidential Information (which destruction  shall include, without limitation, the process of expunging, to the extent  reasonably practicable, all such Confidential Information from any computer,  hard drive, word processor, server, backup tape, or other electronic device  containing such Confidential Information). Notwithstanding the foregoing, the  Receiving Party may retain one archival copy of the Confidential Information in  its confidential files for the purpose of complying with applicable laws or  established company procedure regarding the preservation of business records.  Section 11.05. Term of Article 11.  With respect to Confidential Information  delivered to a Receiving Party on or prior to the Closing Date, the obligations of this  Article 11 shall survive the Closing for five years.  With respect to Confidential  Information delivered to a Receiving Party after the Closing Date, the obligations of this  





 






29    Article 11 shall survive the Closing for a period of three years after the delivery of such  Confidential Information to a Receiving Party.  ARTICLE 12  NON-DISPARAGEMENT  Section 12.01. Non-disparagement Covenant.  Seller and Buyers agree and agree  to cause their respective Affiliates (including, with respect to Buyers, each Company), for  a period of five years after the Closing, to not publish or make any negative, disparaging  or critical statements, whether written or oral, which are likely to adversely affect or  otherwise malign the business or reputation of, with respect to the Seller and its  Affiliates, the Buyers, the Affiliates of Buyers or the respective directors or officers of  Buyers and such Affiliates and, with respect to the Buyers and their Affiliates, the Seller,  its Affiliates or any of the respective directors or officers of Seller or such Affiliates, or  do anything that may harm the reputation of any of them, provided, however, that the  foregoing (i) is neither intended to, nor shall limit the ability of any party to testify  truthfully in response to any valid subpoena or to engage in any other activity compelled  or protected by law and (ii) shall apply only to publications and statements made by  directors, senior officers and senior management of Seller, Buyers or their respective  Affiliates who have knowledge of the terms of this Section 12.01 and the directors, senior  officers and senior management of the Companies (or that are made by any Person at the  direction of any of such directors, senior officers or senior management).  Promptly after  the Closing, Buyer shall cause the Companies to execute a Non Disparagement  Agreement in favor of Seller covering the terms and conditions set forth in this Section  12.01.  ARTICLE 13  MISCELLANEOUS  Section 13.01. Notices.  All notices, requests and other communications to any  party hereunder shall be in writing (including electronic mail (“e-mail”) transmission)  and shall be given,  if to Buyers, to:  Millicom International II N.V.  Pareraweg 45  Curaçao  Attention: Salvador Escalón  E-mail: salvador.escalon@millicom.com    with copies to:  Shai Holding S.A.  2, rue du Fort Bourbon  L-1249 Luxembourg  Grand-Duchy of Luxembourg  





 






30    Attention: Salvador Escalón  E-mail: salvador.escalon@millicom.com    Davis Polk & Wardwell LLP  450 Lexington Avenue  New York, New York  10017  Attention: William Aaronson  E-mail: william.aaronson@davispolk.com  if to Seller, to:  Miffin Associates Corp.  Samuel Lewis Ave and 53 St  Omega Building, 6th level  Republic of Panama, Panama  Attention: Roberto Bianchi  E-mail: rbianchi@bluetowerventures.com    with copies to:  Winston & Strawn LLP  200 Park Avenue  New York, New York  10166  Attention: Claude S. Serfilippi  E-mail: cserfilippi@winston.com  QIL+4 ABOGADOS, S.A.  Diagonal 6 10-01 zona 10, Centro Gerencial Las Margaritas, Torre II,  Oficina 302a, Guatemala, Guatemala   Attention: Marcos Ibarguen  E-mail: mibarguen@altalegal.com    or such other address or e-mail as such party may hereafter specify for the purpose by  notice to the other parties hereto.  All such notices, requests and other communications  shall be deemed received on the date of receipt by the recipient thereof if received prior  to 5:00 p.m. in the place of receipt and such day is a Business Day in the place of receipt.   Otherwise, any such notice, request or communication shall be deemed not to have been  received until the next succeeding Business Day in the place of receipt.  Section 13.02. Amendments and Waivers.  (a) Any provision of this Agreement  may be amended or waived if, but only if, such amendment or waiver is in writing and is  signed, in the case of an amendment, by each party to this Agreement, or in the case of a  waiver, by the party against whom the waiver is to be effective.  (b) No failure or delay by any party in exercising any right, power or  privilege hereunder shall operate as a waiver thereof nor shall any single or partial  





 






31    exercise thereof preclude any other or further exercise thereof or the exercise of  any other right, power or privilege. The rights and remedies herein provided shall  be cumulative and not exclusive of any rights or remedies provided by law.  Section 13.03. Expenses.  Except as otherwise provided herein, all costs and  expenses incurred in connection with this Agreement shall be paid by the party incurring  such cost or expense.  Section 13.04. Successors and Assigns.  The provisions of this Agreement shall be  binding upon and inure to the benefit of the parties hereto and their respective successors  and permitted assigns; provided that no party may assign, delegate or otherwise transfer  any of its rights or obligations under this Agreement without the consent of each other  party hereto; except that any Buyer may transfer or assign its rights and obligations under  this Agreement, in whole or from time to time in part, to (i) one or more of its Affiliates  at any time and (ii) after the Closing Date, to any Person; provided that no such transfer  or assignment shall relieve such Buyer of its obligations hereunder or enlarge, alter or  change any obligation of any other party hereto or due to such Buyer.  Section 13.05. Governing Law.  This Agreement shall be deemed to have been  executed in New York and shall be governed by and construed in accordance with the  law of the State of New York without regard to the conflicts of law rules of such state.  Section 13.06. Dispute Resolution.   (a) Any and all disputes, controversies or claims arising out of,  relating to or in connection with this Agreement or any Side Letter or the  transactions contemplated hereby or thereby, including as to the formation,  existence, validity, enforceability, interpretation, performance, breach and/or  termination of this Agreement, such transactions or any Side Letter, between the  parties (including, for the purposes of this Section 13.06, the Seller Owners), and  their respective successors (each, a “Dispute”), shall be referred to and finally  resolved, exclusively, by arbitration, administered by the International Court of  Arbitration of the International Chamber of Commerce (the “ICC”), in  accordance with its Rules of Arbitration in effect at the time the arbitration is  initiated (the “Rules”).  Each party (and the Seller Owners) agrees that it will not  attempt to challenge, deny or defeat the jurisdiction of the Tribunal (as defined  below) or bring any action, suit or proceeding arising out of, relating to or in  connection with this Agreement or the Side Letter, or the transactions  contemplated hereby or thereby, or the formation, existence, validity,  enforceability, interpretation, performance, breach and/or termination of this  Agreement or any Side Letter, in any court or before any tribunal or  Governmental Authority, other than before the Tribunal (except any party may  bring actions, suits or proceedings to enforce any award of the Tribunal as  otherwise allowed by law).  (b) The arbitration shall be conducted by an arbitral tribunal (the  “Tribunal”) composed of three arbitrators. Each party shall designate one  





 






32    arbitrator, and those two arbitrators shall designate the third arbitrator.  If either  party fails to designate an arbitrator within 30 days after the filing of the  applicable Dispute with the ICC, such arbitrator shall be designated in accordance  with the Rules.  The seat, or legal place, of arbitration shall be New York, New  York, and the language to be used in the arbitral proceedings shall be English, and  all evidence that is produced in another language shall be translated into English.   The governing law of this agreement to arbitrate shall be the law of the State of  New York.  Any decision or award issued by the Tribunal shall be final and  binding on the parties.  (c) The expenses of the arbitral proceedings, including, but not  limited, to the administrative costs of the ICC and arbitrators’ fees, when  applicable, shall be borne by each party in accordance with the Rules. Upon  rendering the arbitral award, the Tribunal, in its discretion, may allocate among  the parties to the arbitration all costs of the arbitration, including the fees and  expenses of the arbitrators and reasonable attorney’s fees, expert witness expenses  and other costs incurred by the parties.  Other than as required by law or as  necessary to enforce a decision or award of the Tribunal, the parties agree that the  arbitral proceedings and the existence thereof shall be kept confidential and shall  not be disclosed other than to the Tribunal, the ICC, the parties, their counsel,  advisors, representatives and any person necessary to the conduct of the  proceeding.    Section 13.07. WAIVER OF JURY TRIAL.  EACH OF THE PARTIES HERETO  HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY  IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS  AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.  Section 13.08. Counterparts; Effectiveness; Third Party Beneficiaries.  This  Agreement may be signed in any number of counterparts (including by electronic means),  each of which shall be an original, with the same effect as if the signatures thereto and  hereto were upon the same instrument.  This Agreement shall become effective when  each party hereto shall have received counterparts hereof signed by each of the other  parties hereto.  Until and unless each party has received counterparts hereof signed by  each other party hereto, this Agreement shall have no effect and no party shall have any  right or obligation hereunder (whether by virtue of any other oral or written agreement or  other communication).  Except for the provisions of Article 8 which may be enforced  directly by any Indemnified Party, Article 10 which may be enforced directly by the  Seller Indemnified Parties and Buyer Indemnified Parties, the provisions of Section 10.07  which may be enforced directly by any Company Person Indemnitee, the provisions of  Article 11 which may be enforced directly by any Disclosing Party and the provisions of  Article 12 which may be enforced directly by any Affiliate, officer or director named  therein, no provision of this Agreement is intended to confer any rights, benefits,  remedies, obligations, or liabilities hereunder upon any Person other than the parties  hereto and their respective successors and, subject to Section 13.04, assigns.  





 






33    Section 13.09. Entire Agreement.  This Agreement and the agreements  referenced  herein, including  the Side Letters and the agreements of the Companies contemplated by  Sections 10.02, 10.07, 11.01(d) and 12.01 constitute the entire agreement between the  parties with respect to the subject matter of this Agreement and supersede all prior  agreements and understandings, both oral and written, between the parties with respect to  the subject matter of this Agreement.  Section 13.10. Severability.  If any term, provision, covenant or restriction of this  Agreement is held by a court of competent jurisdiction or other Governmental Authority  to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants  and restrictions of this Agreement shall remain in full force and effect and shall in no way  be affected, impaired or invalidated so long as the economic or legal substance of the  transactions contemplated hereby is not affected in any manner materially adverse to any  party.  Upon such a determination, the parties shall negotiate in good faith to modify this  Agreement so as to effect the original intent of the parties as closely as possible in an  acceptable manner in order that the transactions contemplated hereby be consummated as  originally contemplated to the fullest extent possible.  Section 13.11. Specific Performance.    (a) Buyers and Seller agree that irreparable damage would occur if any  provision of this Agreement were not performed in accordance with the terms  hereof and that monetary damages would be insufficient to compensate for a  breach.  The parties shall be entitled to an injunction or injunctions to prevent  breaches of this Agreement, or to enforce specifically the performance of the  terms and provisions hereof, in the courts of the State of New York in New York  County or of the United States for the Southern District of New York. Each of the  parties hereby submits to the jurisdiction of such courts for any such action or  proceeding, and irrevocably consents to the service of process out of any of the  aforementioned courts in any such action or proceeding at the address and in the  manner set forth for notice in Section 13.06.  (b) Buyers and Seller acknowledge and agree that Buyers or Seller  may pursue both a grant of specific performance under this Section 13.11 and a  recovery of damages for the other’s failure to consummate the Closing; provided  that in no event shall any party be permitted or entitled to receive both (i) a grant  of specific performance resulting in the consummation of the Closing in  accordance with the terms hereof and (ii) a recovery of damages for the other’s  failure to consummate the Closing.  Section 13.12. Public Announcements.  Subject to each Buyer’s reasonable  judgment that it is otherwise required by Applicable Law or by the rules of a national  securities exchange to make such disclosure, such Buyer shall not, and shall cause its  Affiliates (as applicable) not to, make any public announcement regarding this  Agreement, the Closing or the transactions contemplated by this Agreement to the  financial community, any Governmental Authority, customers, suppliers or the general  public unless prior to such public announcement, such Buyer has given Seller a  





 






34    reasonable opportunity to comment on the form and timing of such public announcement  and considered such comments in good faith.    [Signature page follows.] 





 






[Signature Page to Stock Purchase Agreement]  IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be  duly executed by their respective authorized officers as of the day and year first above  written.  MILLICOM INTERNATIONAL II N.V.  By:    Name: Salvador Escalón   Title: Authorised Person        By:    Name: Bart Vanhaeren   Title: Authorised Person    SHAI HOLDING S.A.  By:    Name: Salvador Escalón   Title: Authorised Person        By:    Name: Bart Vanhaeren   Title: Authorised Person    MIFFIN ASSOCIATES CORP.  By:    Name:    Title: