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EXHIBIT 10.24
Execution copy
VELOCOM INC.
SERIES C PREFERRED STOCK
PURCHASE AGREEMENT
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TABLE OF CONTENTS
1. Agreement To Sell And Purchase..............................................1
1.1 Authorization of Shares ...............................................1
1.2 Sale and Purchase .....................................................1
2. Closing, Delivery And Payment...............................................1
2.1 Closing ...............................................................1
2.2 Certificates; Payment .................................................1
3. Representations, Warranties and Covenants Of The Company....................2
3.1 Organization and Standing. ............................................2
3.2 Capitalization of the Company .........................................2
3.3 Authority .............................................................3
3.4 Consents and Approvals ................................................4
3.5 Compliance with Laws ..................................................4
3.6 Trademarks, Patents, Trade Names, .....................................5
3.7 Actions Pending .......................................................5
3.8 Contracts .............................................................6
3.9 Investments in United States Real Property Interests ..................6
3.10 Unrelated Business Taxable Income ....................................6
3.11 Not a Qualified Small Business .......................................7
3.12 Ownership of Companies ...............................................7
3.13 Capitalization of the Company's Subsidiaries .........................7
3.14 Share Ownership ......................................................7
3.15 Financial Statements .................................................7
3.16 Material Changes .....................................................8
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3.17 Title ................................................................8
3.18 Licenses .............................................................8
3.19 Insurance ............................................................9
3.20 Liabilities ..........................................................9
3.21 Taxes ................................................................9
3.22 Collective Bargaining Agreements, Employment Agreements and
Employee Relations ..................................................10
3.23 Employee Benefits ...................................................10
3.24 Recordkeeping Compliance ............................................10
3.25 Condition of the Companies; Operation of Business in the Ordinary
Course ..............................................................11
3.26 Broker's Fees. ......................................................11
3.27 Foreign Corrupt Practices Act .......................................11
3.28 Offering ............................................................11
3.29 Spectrum Allocation .................................................11
3.30 Disclosure ..........................................................12
3.31 Interested Party Transactions .......................................13
3.32 Investment Company Act ..............................................13
3.33 Public Utility Holding Company Act ..................................13
3.34 Corporate Records; Corporate Governance .............................13
3.35 Registration Rights .................................................13
3.36 Electronic Copies ...................................................13
4. Representations, Warranties and Covenants Of The Purchasers................14
4.1 Requisite Power and Authority ........................................14
4.2 Investment Representations ...........................................14
4.3 Broker's Fees ........................................................15
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4.4 Access to Data Conduits ..............................................15
4.5 Confidentiality ......................................................15
5. Conditions Precedent To Purchasers' Obligations............................16
5.1 Conditions to Closing ................................................16
6. Use of Proceeds............................................................17
7. Miscellaneous..............................................................17
7.1 Governing Law ........................................................17
7.2 Survival .............................................................17
7.3 Successors and Assigns ...............................................17
7.4 Entire Agreement; Amendment and Waiver ...............................17
7.5 Specific Enforcement .................................................18
7.6 Severability .........................................................18
7.7 Notices ..............................................................18
7.8 Counterparts; Facsimile ..............................................18
7.9 Future Financings; Purchaser Obligations .............................18
7.10 Expenses ............................................................18
7.11 Indemnification .....................................................19
7.12 Survival ............................................................19
8. Certain Definitions........................................................20
EXHIBITS:
Exhibit A Schedule of Purchasers
Exhibit B Form of Third Amended and Restated Certificate of Incorporation
Exhibit C Form of Second Amendment to Third Amended and Restated Investors
Agreement
Exhibit D Form of Legal Opinion
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VELOCOM INC.
SERIES C PREFERRED
STOCK PURCHASE AGREEMENT
This Series C Preferred Stock Purchase Agreement (this "Agreement") is
entered into as of April 12, 2000, by and among VELOCOM INC., a Delaware
corporation (the "Company"), and each of those persons and entities, severally
and not jointly, whose names are set forth on the Schedule of Purchasers
attached hereto as Exhibit A (collectively the "Purchasers" and individually a
"Purchaser").
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth, the parties hereto agree as follows:
1. AGREEMENT TO SELL AND PURCHASE
1.1 Authorization of Shares. On or prior to the Closing Date (as
defined in Section 2 below), the Company shall have authorized the sale and
issuance to the Purchasers of the shares (the "Shares") of its Series C
Preferred Stock, $.0001 par value per share (the "Series C Preferred") described
in Section 2 below having the rights, preferences, privileges and restrictions
set forth in the Third Amended and Restated Certificate of Incorporation, a copy
of which is attached hereto as Exhibit B (the "Certificate of Incorporation").
1.2 Sale and Purchase. Subject to the terms and conditions hereof, at
the Closing (as defined in Section 2 below) the Company hereby agrees to issue
and sell to each Purchaser and each Purchaser severally and not jointly agrees
to purchase from the Company, the aggregate number of Shares set forth opposite
such Purchaser's name on Exhibit A.
2. CLOSING, DELIVERY AND PAYMENT
2.1 Closing. Subject to satisfaction of the conditions to closing set
forth in Section 5, the closing of the sale and purchase of the Shares under
this Agreement (the "Closing") shall take place at 9:00 a.m. on April __, 2000,
at the offices of Holland & Xxxx LLP, 000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxx, XX 00000 or at such other time or place as the Company and the
Purchasers may mutually agree (such date is hereinafter referred to as the
"Closing Date"); provided, however, that the Company shall have the right to
sell up to 150,000 additional shares of the Series C Preferred to Purchasers
other than El Paso Energy Communications Company on the Closing Date by having
such additional Purchasers execute counterpart signature pages to this Agreement
and to the Investors Agreement and by updating Exhibit A hereto on or prior to
the Closing Date.
2.2 Certificates; Payment. On the Closing Date, the Company shall
deliver to each Purchaser a certificate (or certificates in denominations
reasonably designated by
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Purchaser) representing all of the Shares purchased by such Purchaser at the
Closing against payment of the purchase price therefor by certified check or
wire transfer of immediately available funds.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY
Except for the representations and warranties of the Company set forth
in Sections 3.3(a)(iv), 3.12, 3.13 and 3.14, all representations and warranties
made by the Company pursuant to this Section 3 regarding the Brazilian Companies
and the Acquired Subsidiaries shall be made to the knowledge of the Company. The
Company hereby represents and warrants to each Purchaser as of the date hereof,
as follows:
3.1 Organization and Standing. Each of the Companies is duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation. Each of the Companies has all requisite corporate power and
authority to own and operate its properties and assets and to carry on its
businesses as presently conducted and as presently proposed to be conducted.
Each of the Companies is qualified to do business in each jurisdiction where the
failure to be so qualified would result in a material adverse effect on the
business, operations, assets, prospects or condition (financial or otherwise) of
any of the Companies (a "Material Adverse Effect"). The copies of the Company's
and each of the Subsidiaries' charter documents and by-laws or other constituent
documents which have been furnished to the Purchaser's special counsel reflect
all amendments made thereto at any time prior to the date of this Agreement and
are correct and complete.
3.2 Capitalization of the Company.
(a) The authorized capital stock of the Company, immediately
prior to the Closing Date, shall consist of (A) one hundred twenty million four
hundred twenty one thousand five hundred seventy seven (120,421,577) shares of
Common Stock, of which (i) one hundred thirteen million nine hundred forty one
thousand six hundred sixty seven (113,941,667) will be designated as Voting
Common Stock, eleven million two hundred eighty three thousand eight hundred
twenty six (11,283,826) of which will be issued and outstanding immediately
prior to the Closing Date, and (ii) six million four hundred seventy nine
thousand nine hundred ten (6,479,910) will be designated as Non-Voting Common
Stock, none of which will be issued and outstanding immediately prior to the
Closing Date, and (B) eighty nine million two hundred ninety six thousand five
hundred seventy seven (89,296,577) shares of Preferred Stock, of which (i)
thirty one million (31,000,000) will be designated as Series A Preferred Stock,
thirty million seven hundred six thousand three hundred thirty three
(30,706,333) of which will be issued and outstanding immediately prior to the
Closing Date, (ii) forty two million six hundred sixty six thousand six hundred
sixty seven (42,666,667) will be designated as Series B Preferred Stock, of
which twenty million one hundred thirty six thousand four hundred eleven
(20,136,411) will be issued and outstanding immediately prior to the Closing
Date, and an additional twenty million three hundred ninety five thousand eight
hundred thirty four (20,395,934) shares of which will have been committed to be
sold by
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the Company immediately prior to the Closing Date, (iii) six million four
hundred seventy nine thousand nine hundred ten (6,479,910) will be designated as
Series B-1 Preferred Stock, one million nine hundred sixty seven thousand seven
hundred fifty four (1,967,754) of which will be issued and outstanding
immediately prior to the Closing Date; and (iv) five million one hundred fifty
thousand (5,150,000) will be designated as Series C Preferred Stock, none of
which will be issued and outstanding immediately prior to the Closing Date. All
issued and outstanding shares of the Company's Common Stock, Series A Preferred
Stock, Series B Preferred Stock and Series B-1 Preferred Stock have been duly
authorized, validly issued and are fully paid and non-assessable; and upon
payment and delivery, all shares of the Company's Series C Preferred Stock will
be duly authorized, validly issued and fully paid and non-assessable. Except for
(i) the six million two hundred thirty three thousand three hundred thirty three
(6,233,333) options outstanding immediately prior to the Closing Date, (ii) the
conversion privileges of the Series A Preferred Stock, Series B Preferred Stock,
Series B-1 Preferred Stock and Series C Preferred Stock, (iii) the shares of
Series B Preferred Stock to be purchased pursuant to the Series B Preferred
Stock Purchase Agreement dated as of December 6, 1999 among the Company and the
Purchasers listed on the Schedule of Purchasers attached thereto, as amended by
Amendment No. 1 thereto, dated as of December 31, 1999, (iv) the shares of
Series B Preferred Stock and Series B-1 Preferred Stock to be purchased pursuant
to the Follow-On Series B/B-1 Preferred Stock Purchase Agreement dated as of
December 20, 1999 among the Company and the Purchasers listed on the Schedule of
Purchasers attached thereto, (v) the shares of Common Stock to be issued
pursuant to the Warrant Agreement dated February 11, 2000 between the Company
and Intel Corporation, and (vi) as contemplated by this Agreement, there will be
no options, warrants or other rights to purchase from the Company any of its
equity securities that are outstanding immediately prior to the Closing Date.
The Company will not have in place any stock appreciation rights or phantom
stock plans immediately prior to the Closing Date.
(b) The Shares to be issued to the Purchasers hereunder will have
the voting powers, dividend rights, liquidation rights, designations,
preferences and relative participating, optional or other special rights and the
qualifications, limitations and restrictions as are set forth in the Third
Amended and Restated Certificate of Incorporation.
3.3 Authority.
(a) The Company has full power, right and authority to execute
the Transaction Documents and to perform all of its obligations hereunder and
thereunder. The execution and delivery of the Transaction Documents by the
Company has been, and consummation by the Company of the transactions
contemplated thereby has been, duly authorized by all necessary action of the
Company and, as of the Closing Date, by the stockholders of the Company. The
Transaction Documents have been duly and validly executed and delivered by the
Company and constitute the legal, valid, binding and enforceable obligations of
the Company subject to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar Laws affecting
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creditors' rights generally and subject, as to enforceability, to general
principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity). The execution, delivery and performance by the
Company of the Transaction Documents and the consummation of the transactions
contemplated thereby will not (i) conflict with or violate any Contracts or
Permits to which any of the Companies is a party or bound and, in particular,
will not cause prepayment of any banking or other indebtedness of any of the
Companies and will not otherwise give any other Person the right to accelerate,
renegotiate or terminate or receive any payment and will not constitute a
default, event of default or an event which with the passage of time or lack of
notice, or both, would constitute a default or event of default under such
Contract, (ii) conflict with or violate any provision of any applicable Legal
Requirement to which any of the Companies is subject, (iii) conflict with or
violate any Judgment applicable to any of the Companies, or (iv) conflict with,
or result in a breach or default under, any term or condition of the constituent
documents of any of the Companies.
(b) When issued in compliance with the provisions of this
Agreement and paid for by each Purchaser, the Shares and the shares of Common
Stock issuable upon conversion of the Shares (the "Conversion Shares"), will be
validly issued, fully paid and nonassessable and will not have been issued in
violation of any preemptive rights.
(c) As of the Closing Date, the Shares and the Conversion Shares
will be duly authorized and the Conversion Shares will be validly reserved for
issuance.
3.4 Consents and Approvals. Except as set forth on Schedule 3.4, no
consent, license, approval, waiver, expiration of waiting period or
authorization of, or registration or declaration with, any municipal, local,
state, federal, domestic or foreign governmental authority, agency, bureau or
commission, or any other Person (a "Consent"), is required to be obtained or
made by any of the Companies, in connection with its execution, delivery, or
performance of the Transaction Documents or enforceability of its respective
obligations under the Transaction Documents or the transactions contemplated
thereby.
3.5 Compliance with Laws.
(a) Except as set forth on Schedule 3.5(a), each of the Companies
has been and is currently in compliance with all (i) Environmental Laws, (ii)
applicable telecommunications Laws, and (iii) Legal Requirements, in each case,
except as would not have a Material Adverse Effect. None of the Companies has
received (A) any citation, notice of violations, complaint, consent order (or
amendment to or modification of such order), compliance schedule or other
similar enforcement order, or (B) any written notice in any form, including
inspection reports, from any governmental entity or any other Person which in
any case would indicate that there was not then or is not currently such
compliance with all such Legal Requirements.
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(b) Schedule 3.5(b) sets forth an accurate and complete list of
all material Permits which are used or held by each of the Companies in
connection with the operation of its business. The Company represents that (i)
all Permits of each of the Companies are in full force and effect, except as
would not have a Material Adverse Effect, (ii) the Companies are in compliance
with the terms and requirements of all Permits, except for any such
noncompliance as would not have a Material Adverse Effect, (iii) any
applications for renewal of any Permit due prior to the Closing have been, or
will be, timely filed prior to the Closing, except as would not have a Material
Adverse Effect, (iv) no proceeding or other legal action to modify, suspend,
revoke, withdraw, terminate or otherwise limit any such Permit is pending or, to
the knowledge of the Company, threatened, except for such proceedings or actions
which would not have a Material Adverse Effect, and (v) each of the Companies
has made all payments required to be made under all Permits, including, without
limitation, in respect of any Licenses, except for payments the failure of which
to make would not have a Material Adverse Effect.
3.6 Trademarks, Patents, Trade Names.
(a) Schedule 3.6 contains a listing of all patents, know-how,
trademarks, trade names, service marks, service names, copyrights and other
intellectual or proprietary property used in the conduct of each of the
Companies' businesses (the "Patent and Trademark Rights"). Except as set forth
on Schedule 3.6, none of the Companies has received any notice from any other
Person challenging the right of any of them to use any such Patent and Trademark
Rights owned or used by or licensed to each of the Companies. The Company has no
knowledge that any Patent and Trademark Right is being infringed upon or
appropriated by others, and none is subject to any outstanding Judgment
affecting the scope of the free and unrestricted use by any of the Companies or
is used contrary to the provisions of any licensing or other agreement. There
are no geographic restrictions on the use by any of the Companies of the Patent
and Trademark Rights, except as would not have a Material Adverse Effect.
(b) None of the Companies has entered into any agreement or
arrangement for the provision or acquisition of any Patent and Trademark Rights.
3.7 Actions Pending. There is no suit, action, claim, arbitration or
similar proceeding or investigation pending or, to the Company's knowledge,
threatened against any of the Companies (i) which, if adversely resolved, would
be reasonably likely to have a Material Adverse Effect, (ii) with respect to
which there is a reasonable likelihood of a determination which would prevent
the Company from consummating the transactions contemplated by the Transaction
Documents, or (iii) which seeks to enjoin or obtain damages in respect of the
consummation of the transactions contemplated by the Transaction Documents. None
of the Companies is a party to or is bound by any Judgment of any governmental
authority, arbitrator or any other Person. None of the Companies has
compromised, settled or lost any arbitration or judicial or administrative
proceeding.
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3.8 Contracts.
(a) Schedule 3.8 contains an accurate and complete list of all
Contracts to which any of the Companies is a party or by which any of such
Companies' assets or properties are bound or affected and which (i) involve the
obligation (including contingent obligations) to pay by or to any of such
Companies amounts in excess of US$100,000 in the aggregate in respect of the
Company and the Subsidiaries and amounts in excess of US$1,000,000 in the
aggregate in respect of the Brazilian Companies, (ii) are Contracts with any
stockholder or member or any Affiliate of any stockholder or member, (iii) are
Contracts with governmental entities, or (iv) were not entered into in the
ordinary course of business of any of such Companies.
(b) All Contracts are valid, binding and enforceable by each of
the respective Companies in accordance with their respective terms and none of
such Companies is in default under any of such Contracts nor is there any basis
for any valid claim of default or violation under any Contract, except, in each
case, as would not have a Material Adverse Effect. To the knowledge of the
Company, no other party to any of such Contracts is in default in any material
respect thereunder nor does there exist any event or condition, which upon the
giving of notice or the lapse of time or both, would (i) constitute a default in
any material respect or event of default thereunder or (ii) entitle any other
party thereto to terminate such Contract.
(c) None of the Companies is a party to any Contract containing
an undertaking on its part not to compete in any business, industry or
geographical area except as set forth in the Licenses.
3.9 Investments in United States Real Property Interests. The Company's
capital stock does not, and the Company shall use its reasonable commercial
efforts to ensure that its capital stock will not, constitute a United States
real property interest as that term is defined in Section 897(c)(1)(A)(ii) of
the Internal Revenue Code of 1986, as amended (the "Code"). The preceding
representation is based on a determination by the Company that the Company is
not and has not been a United States real property holding corporation (as that
term is defined in Section 897(c)(2) of the Code) ("USRPHC") during the five (5)
year period preceding the date of this Agreement. From time to time, upon the
request of any Purchaser, the Company shall make a determination as to its
status as a USRPHC. If at any time in the future the Company should become a
United States real property holding corporation, the Company shall, as promptly
as possible, notify each Purchaser of such change in status.
3.10 Unrelated Business Taxable Income. The Company shall use its
reasonable commercial efforts to ensure that any gross income derived by a
Purchaser from the Company shall be in the form of dividends, interest, capital
gains and losses from the disposition of property, and rents and royalties, but
only such rents and royalties as are excluded pursuant to Code Sections
512(b)(2) and 512(b)(3), respectively, in calculating unrelated business taxable
income and only such dividends,
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interest, capital gains and losses, and rents and royalties that are not
included under Section 512(b)(4) of the Code in calculating unrelated business
taxable income.
3.11 Not a Qualified Small Business. The Company does not qualify as a
"Qualified Small Business" as defined in Section 1202(d) of the Code.
3.12 Ownership of Companies. Schedule 3.12 sets forth the ownership
structure of the Companies.
3.13 Capitalization of the Company's Subsidiaries Schedule 3.13 sets
forth the outstanding capital of each of the Companies (other than the Company),
the number of their authorized and issued shares or equity interests and their
nominal value. All of the shares or equity interests of the Companies (other
than the Company) have been duly authorized, validly issued and are fully paid
and non-assessable. The Companies (other than the Company) have no other shares
or equity interests of any kind authorized or outstanding, no outstanding
securities convertible into or exchangeable for or carrying the right to acquire
any equity security of any of the Companies (other than the Company) and no
outstanding options, warrants or other agreements or commitments under which any
of the Companies (other than the Company) are obligated to issue any additional
shares or equity interests. None of the shares of any of the Companies is
subject to any Encumbrances except as set forth on Schedule 3.13, except that
the shares of Xxxxxx X.X. and Xxxxxx Sao Paulo S.A. are pledged pursuant to the
terms of the Vendor Financings, and except as contemplated or granted in the
Transaction Documents.
3.14 Share Ownership.
(a) Schedule 3.14(a) sets forth the true and correct
capitalization of the Company immediately prior to and immediately after the
Closing Date.
(b) Schedule 3.14(b) sets forth a true and complete list of (i)
all stockholders agreements, investors agreements, limited liability company
agreements or other agreements in respect of or relating to the equity interests
in the Companies to which the Company or any of the Companies is a party, and
(ii) all Contracts relating to the purchase, sale, transfer or other disposition
of any securities or equity interests of any of the Companies to which the
Company or any of the Companies is a party.
3.15 Financial Statements. The Company has delivered to each Purchaser
(x) the audited balance sheet and the related audited income statement and
retained earnings statement for the year ended December 31, 1998 of the Company,
and (y) unaudited balance sheet and the related unaudited income statement and
retained earnings statement for the nine months ended September 30, 1999 of the
Company, and for the year ended December 31, 1999 of Vesper Sao Paulo Holding
S.A, Vesper Holding S.A., Telelatina Management Company, Smartel S.A., Formus
S.A. and Telelatina S.A. (the items referred to in (x) and (y) are referred to
collectively as the "Financial Statements"). Except for certain provisions for
deferred tax assets, which are currently
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under discussion, and as may be otherwise noted therein, the Financial
Statements present fairly, in all material respects in accordance with generally
accepted accounting principles then in effect, the financial position of each of
the Companies as of the date set forth therein and the results of operations of
each of such Companies for the periods set forth therein , except that the
Financial Statements (i) do not have all footnotes required by generally
accepted accounting principles and (ii) are subject to normal, year-end
adjustments. As of the Closing Date, the Financial Statements constitute all of
the financial statements prepared and available for any of the Companies for
periods ending on or after the later of the date that each of the Companies was
acquired or formed, or December 31, 1998.
3.16 Material Changes. Except as set forth in the Financial Statements,
since the date of the latest respective Financial Statements (i) there have been
no changes in the business, operations, assets or liabilities of any of the
respective Companies which, individually or in the aggregate, has had or would
be reasonably likely to have, a Material Adverse Effect; (ii) none of such
Companies has made or declared any dividend or declared, made or paid any other
distribution in respect of its capital stock; (iii) none of such Companies has
suffered any casualty which resulted in damage, destruction or loss (whether or
not covered by insurance); and (iv) none of such Companies has suffered any
strike or other work stoppage.
3.17 Title.
(a) Except for Encumbrances imposed in connection with the Vendor
Financings, each of the Companies has (i) with respect to real property which is
leased and used by it in its business, valid and subsisting leasehold interests
and (ii) with respect to the owned or leased personal property and assets used
by it in its business, good title or valid leasehold interests, in each
instance, free and clear of any Encumbrances, except Permitted Encumbrances or
any Encumbrances reflected on the Financial Statements.
(b) The Company does not own any real property.
3.18 Licenses.
(a) Schedule 3.18 sets forth a complete list of all of the
telecommunications licenses and concessions held by the Companies (the
"Licenses"). Each of the Licenses listed in Schedule 3.18 was duly authorized,
granted and delivered by the appropriate governmental entity or an
instrumentality thereof to each of the Companies identified in Schedule 3.18 as
holding such License and recorded with the appropriate government entity in
accordance with all applicable Legal Requirements. Each of the Licenses is held
by such of the Companies identified in Schedule 3.18 as holding such License,
free and clear of any Encumbrance or other attachments and duties of any kind
except as set forth in the relevant License. There are no restrictions or
limitations on the use of the rights granted by the Licenses except for those
expressly set forth in each of the Permits, Licenses and applicable Law.
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(b) Since the award of the Licenses, and except as disclosed on
Schedule 3.5(a) with respect to Interloop Colombia, (i) each of the Companies
holding a License has complied with the terms and conditions of the License held
by it and with the applicable telecommunications Laws (including any required
build-out deadlines and notice or filing obligations) and has made all necessary
payments required to be made thereunder, except where the failure to comply or
to make such payments would not have a Material Adverse Effect, and (ii) none of
the Licenses has been terminated, modified, suspended or revoked, and none of
the transactions contemplated hereby will result or has resulted in the
termination, modification, suspension or revocation of any License.
3.19 Insurance. Each of the Companies has in place adequate and
appropriate insurance policies, given its industry and its current stage of
development. None of the Companies has been notified of any cancellation of or
any refusal of any insurance coverage relating to its operations by any
insurance carrier to which it has applied for insurance since its formation.
Each of the Companies is in compliance in all material respects with such
insurance policies and has paid all outstanding premiums when and as due. There
is no pending claim under any insurance policy to which any of the Companies is
an insured or beneficiary or any fact or circumstance reasonably likely to give
rise to such a claim.
3.20 Liabilities. Except as set forth in the Financial Statements, on
Schedule 3.20, or in the Licenses or Contracts, none of the Companies has
incurred any outstanding material obligation, debt or liability, fixed or
contingent ("Liabilities") to any Person.
3.21 Taxes.
(a) The Companies have filed all federal, state, departmental,
municipal and foreign Tax returns required by law to be filed by them other than
such filings, the failure of which to have been made, would not reasonably be
likely to result in the imposition of significant penalties on any of the
Companies. Except as set forth on the Financial Statements, and except for taxes
the failure of which to pay would not reasonably be likely to result in the
imposition of significant penalties on any of the Companies, each of the
Companies has paid all such taxes that have already become due and payable. The
provisions shown on the Financial Statements are adequate to reflect any
material amount of unpaid Taxes of the Companies due or to become due with
respect to fiscal periods ended on or before the date of the Financial
Statements. As of the date hereof, there is no claim or assessment pending
against the Company or any of the other Companies, based on a failure to pay
Taxes and no basis exists for any such claim.
(b) The Company is not aware of and, to the Company's knowledge,
there are no circumstances which, either by passage of time or issuance of an
assessment binding on any of the Companies to pay any Tax or contribution, may
give rise to any type of dispute with any Tax authority in relation to any Tax
obligation or liability.
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3.22 Collective Bargaining Agreements, Employment Agreements and
Employee Relations.
(a) Except as set forth on Schedule 3.22(a), none of the
Companies has in effect any collective bargaining agreement or employment
agreement which is not terminable at will in accordance with the laws of the
jurisdictions in which it operates. Except as set forth on Schedule 3.22(a),
there are no disputes currently subject to any grievance procedure, arbitration
or litigation under such collective bargaining agreements or employment
agreements nor is there any default under any such agreements, by any of the
Companies or, to the knowledge of the Company, any other party thereto.
(b) Schedule 3.22(b) sets forth all employees and directors of
the Company and their remuneration rates, applicable benefits and the applicable
term of their employment.
3.23 Employee Benefits.
(a) Except as set forth on Schedule 3.23, the Companies do not
maintain or contribute to or have any liability with respect to (i) any
incentive, bonus, commission or deferred compensation or severance or
termination pay plan, agreement or arrangement for the benefit of employees
employed by it or any director, (ii) any pension, profit-sharing, stock
purchase, stock option, group life insurance, hospitalization insurance,
disability, retirement or any other employee benefit plan, agreement or
arrangement, for the benefit of employees employed by it or any director or
(iii) any fringe benefit plan, agreement or arrangement for the benefit of
employees employed by it or any director (the items referred to in (i), (ii),
and (iii) above are hereinafter referred to collectively as, the "Plans" and
individually as a "Plan").
(b) There are no scheduled or agreed-upon future increases of
benefit levels for employees employed by any of the Companies, and no increases
in benefits have (i) been proposed by any of the Companies for the benefit of
its employees or any director, (ii) been made the subject of representation or
similar communication by any of the Companies to their employees or directors or
(iii) to the knowledge of the Company, been requested or demanded by employees
employed by any of the Companies under circumstances which make it reasonable to
expect that such increase will be granted.
(c) Each of the Companies has made all requisite pension and
other governmental and/or social security contributions on its own behalf and on
behalf of its employees and is in compliance in all material respects with all
labor and social security obligations pursuant to the applicable Laws and Legal
Requirements.
3.24 Recordkeeping Compliance. Each of the Companies has maintained its
books and records and accounts in accordance with all applicable Legal
Requirements, and all corporate and other documents required to be submitted to
relevant federal, state,
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departmental and municipal authorities by each of such Companies have been duly
and punctually submitted and have been true and correct in all material
respects.
3.25 Condition of the Companies; Operation of Business in the Ordinary
Course. All of the material equipment, buildings and other assets of each of the
Companies used in connection with the operation of its businesses are in good,
workmanlike condition and fit for use for their intended purposes, ordinary wear
and tear excepted.
3.26 Broker's Fees. The Company has not employed any broker, finder,
consultant or intermediary in connection with the transactions contemplated by
the Transaction Documents that would be entitled to a broker's, finder's or
similar fee or commission in connection therewith.
3.27 Foreign Corrupt Practices Act. The Company represents that (i) it
has not taken any action which is or could be deemed to be a violation of the
Foreign Corrupt Practices Act in respect of any of the Companies; (ii) it is not
aware of any action or conduct which could be deemed to be a violation of the
Foreign Corrupt Practices Act in respect of any of the Companies; and (iii) none
of its managers, officers, directors, employees, stockholders, members, agents
or representatives has offered, given, paid, authorized the payment of, or
promised, directly or indirectly, any money, gift, promise or other thing of
value to any Foreign Official (or to any other Person while knowing it will be
offered, given or promised to a Foreign Official) for any purpose including, by
way of example but not limitation, influencing any act or decision of such
Person acting in their official capacity, inducing such Person to do or omit to
do any action in violation of their lawful duty, inducing such Person to use
their influence with the government of the Republic of Argentina, the Republic
of Peru, the Republic of Colombia, the Republic of Venezuela, the Republic of
Uruguay, the Republic of Chile, the Federative Republic of Brazil or any other
government or any instrumentality thereof to affect or influence any act or
decision of such government or instrumentality, in order to assist any of the
Companies or their stockholders or members to obtain or retain business for or
with, or in directing business to, any Person.
3.28 Offering. Subject to the accuracy of the Purchasers'
representations in Section 4 hereof, the offer, sale and issuance of the Shares
and the Conversion Shares constitute transactions exempt from the registration
requirements of Section 5 of the Securities Act of 1933, as amended (the
"Securities Act") and state Blue Sky laws. The Company has not and will not take
any actions that would cause the offer and sale of the Shares hereunder to be
ineligible for such exemption or subject the same to the registration or
qualification requirements of any securities or Blue Sky laws of any applicable
jurisdiction. The offer of the Shares was made in accordance with, and in full
compliance with, all applicable federal securities or state Blue Sky laws.
3.29 Spectrum Allocation. The spectrum allocation held by or available
for use in reserve by each of the Companies is reasonably sufficient to enable
each of the Companies to satisfy its business plan as contained in the
Confidential Offering
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Memorandum dated as of July 1999, as supplemented by the October 1999
Supplemental Disclosure Statement, provided to the Purchasers, except where the
failure to have such allocation will not have a Material Adverse Effect on any
of the Companies; provided that in respect of the Brazilian Companies, in the
event any such Brazilian Company needs additional spectrum to satisfy its
current business plan objectives, the Company reasonably believes that such
spectrum should be available from ANATEL so long as such Brazilian Company has
complied with its existing license obligations. Vesper Sao Paulo S.A. and Xxxxxx
X.X. have the exclusive right to use the frequencies 1940-1950 Mhz (10 Mhz of
which are in reserve) and 3425-3450, 3525-3550 Mhz (30 Mhz of which are in
reserve) in the bands granted to them under their respective concessions in
their respective service areas until December 31, 2001, subject to the terms of
the concessions and for so long as such companies remain in compliance with the
terms of their respective concessions. Vesper Sao Paulo S.A. and Xxxxxx X.X.
share the following frequencies with the incumbent service providers in their
regions: 1910-1930 Mhz, 406-413 Mhz and 423-430 Mhz. The incumbent operators
currently have the right to use the 1.9 Ghz frequencies that they share with
Xxxxxx X.X. and Vesper Sao Paulo S.A. for cities having populations of 50,000 or
less. Commencing in February 2001, with respect to Xxxxxx X.X., and May 2001,
with respect to Vesper Sao Paulo S.A., these incumbent operators may continue to
use the shared 1.9 Ghz frequencies provided that they reach a mutually agreeable
use agreement with Xxxxxx X.X. and Xxxxxx Sao Paulo S.A. and ANATEL approves of
such use agreement.
3.30 Disclosure.
(a) No representation or warranty by the Company in this
Agreement or any other Transaction Document contains any untrue statement of a
material fact or omits to state any material fact necessary, in light of the
circumstances under which it was made, in order to make the statements herein or
therein not misleading. Documents delivered or to be delivered to the Purchasers
or their counsel pursuant to this Agreement and the other Transaction Documents
are or will be true and complete copies in all material respects of what they
purport to be.
(b) The business and strategy of the Company described in the
Confidential Offering Memorandum dated July 1999, as supplemented by the October
1999 Supplemental Disclosure Statement, is the business and strategy that the
Company is pursuing as of the date hereof except for (i) the sale of the
Company's assets in Peru and Colombia, (ii) the purchase of internet assets in
Brazil, (iii) the creation of a data transport and data warehouse business in
Brazil, (iv) a greater focus on the Mercosur countries and Mexico, and (v) the
possible pursuit of the acquisition of cable assets in the Mercosur region. The
financial projections in respect of Vesper Sao Paulo
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S.A. and Xxxxxx X.X. contained in the October 1999 Supplemental Disclosure
Statement prepared by the Company and provided to El Paso Energy Communications
Company ("El Paso") were prepared in good faith and were based upon reasonable
assumptions. Each Purchaser acknowledges that Vesper Sao Paulo S.A. and Xxxxxx
X.X. are in the process of reexamining the operating and capital expenditures
and capital requirements for their respective businesses and that the Advisory
Committees of each of Vesper Sao Paulo S.A. and Xxxxxx X.X. is considering the
adoption of revisions to their respective business plans primarily to accelerate
the development of its network and to implement a data transport business, but
no Advisory Committee has yet approved such revisions to the business plans. Any
such revision to the business plans would likely change the financial
projections of Vesper Sao Paulo S.A. and/or Xxxxxx X.X. The approval of the
Board of Directors of the Company will be obtained before Vesper Sao Paulo S.A.
or Xxxxxx X.X. approves any material changes to their business plans.
3.31 Interested Party Transactions. No officer, director, employee or five
percent (5%) stockholder of the Company, nor any Affiliate of any such persons,
is indebted or committed to make loans or extend or guarantee credit to the
Company nor is the Company indebted or committed to make loans or extend or
guarantee credit to any of them. Except pursuant to Vendor Financings, the
Company is not a guarantor or indemnitor of any indebtedness of any other
person, firm or corporation. Except as contemplated by this Agreement, or the
schedules or exhibits attached hereto, no officer, director or employee of the
Company, nor any of their affiliates, is now a party to any material contract
with the Company. To the knowledge of the Company, no officer or key employee
has any direct or indirect ownership interest in any firm or corporation with
which the Company is affiliated or with which the Company has a business
relationship, or any firm or corporation that competes with the Company (other
than the foregoing persons or members of their immediate family owning less than
1% of the stock in publicly traded companies that may compete with the Company).
3.32 Investment Company Act. The Company is not an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
3.33 Public Utility Holding Company Act. The Company is not a "holding
company" or a "subsidiary company" of a "holding company" or an "affiliate" of a
"holding company" or of a "subsidiary company" of a "holding company" as such
terms are defined in the Public Utility Holding Company Act of 1935, as amended.
3.34 Corporate Records; Corporate Governance. The minute books of the
Company contain since the time of incorporation complete and accurate records in
all of all meetings and other corporate actions of the stockholders and Board of
Directors (and any committees thereof) of the Company.
3.35 Registration Rights. Except as set forth in the Investors
Agreement, the Company is not under any contractual obligation to register under
the Securities Act any of its currently outstanding securities or any of its
securities which may hereafter be issued.
3.36 Electronic Copies. All documents listed on Schedule 3.8 and all
Licenses listed on Schedule 3.18 which have been requested by El Paso or its
counsel in connection with its due diligence review of the Companies and which
have been transmitted to El Paso or its counsel in electronic form are final and
complete copies of
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such agreements in all material respects, excluding exhibits, schedules and/or
attachments to such agreements that were not so provided.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASERS
Each Purchaser severally and not jointly hereby represents and warrants
to the Company, as of the date hereof, as follows:
4.1 Requisite Power and Authority. Such Purchaser has all necessary
power and authority under all applicable provisions of law to execute and
deliver this Agreement and to carry out its provisions. All actions on such
Purchaser's part required for the lawful execution and delivery of this
Agreement have been or will be effectively taken prior to the Closing.
4.2 Investment Representations. Such Purchaser understands that none of
the Shares or the Conversion Shares has been registered under the Securities
Act. Such Purchaser also understands that the Shares are being offered and sold
pursuant to an exemption from registration contained in the Securities Act based
in part upon the Purchaser's representations contained in this Agreement.
(a) Purchaser Bears Economic Risk. Such Purchaser has substantial
experience in evaluating and investing in private placement transactions of
securities in companies similar to the Company so that it is capable of
evaluating the merits and risks of its investment in the Company and has the
capacity to protect its own interests. Such Purchaser must bear the economic
risk of this investment indefinitely unless the Shares and/or the Conversion
Shares are registered pursuant to the Securities Act, or an exemption from
registration is available. Such Purchaser understands that the Company has no
present intention of registering the Shares and/or the Conversion Shares. Such
Purchaser also understands that there is no assurance that any exemption from
registration under the Securities Act will be available and that, even if
available, such exemption may not allow such Purchaser to transfer all or any
portion of the Shares and/or the Conversion Shares under the circumstances, in
the amounts or at the times such Purchaser might propose.
(b) Acquisition for Own Account. Such Purchaser is acquiring the
Shares and/or the Conversion Shares for its own account for investment only, and
not with a view towards their distribution in violation of applicable securities
laws.
(c) Purchaser Can Protect Its Interest. Such Purchaser represents
that, by reason of its or of its management's business or financial experience,
such Purchaser has the capacity to protect its own interests in connection with
the transactions contemplated in this Agreement.
(d) Accredited Investor. Such Purchaser represents that it is an
accredited investor within the meaning of Regulation D under the Securities Act.
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(e) Company Information. Such Purchaser has had an opportunity to
discuss the Company's business, management and financial affairs with directors,
officers and management of the Company. Such Purchaser has also had the
opportunity to ask questions of, and receive answers from, the Company and its
management regarding the terms and conditions of this investment.
(f) Rule 144. Such Purchaser acknowledges and agrees that the
Shares and/or the Conversion Shares must be held indefinitely unless they are
subsequently registered under the Securities Act or an exemption from such
registration is available. Such Purchaser has been advised or is aware of the
provisions of Rule 144 promulgated under the Securities Act, which permits
limited resale of shares purchased in a private placement subject to the
satisfaction of certain conditions, including, among other things: the
availability of certain current public information about the Company, the resale
occurring not less than one year after a party has purchased and paid for the
security to be sold, the sale being through an unsolicited "broker's
transaction" or in transactions directly with a market maker (as said term is
defined under the Securities Exchange Act of 1934, as amended) and the number of
shares being sold during any three-month period not exceeding specified
limitations.
4.3 Broker's Fees. None of the Purchasers has employed any broker,
finder, consultant or intermediary in connection with the transactions
contemplated by the Transaction Documents that would be entitled to a broker's,
finder's or similar fee or commission in connection therewith.
4.4 Access to Data Conduits. El Paso agrees to negotiate in good faith
with the Company regarding the terms and conditions of an agreement pursuant to
which, when executed, El Paso will grant to the Company or the Company's
Affiliates the right to use, on commercial terms and conditions, for data
transmission activities those portions of the fiber optic or communications
network maintained or to be maintained by El Paso and its subsidiaries necessary
or appropriate to transmit data to or from the countries of Argentina, Bolivia,
Brazil, Chile, Paraguay and Uruguay (the "El Paso Network"). The terms on which
such access may be provided, if any, shall be such as are set forth in a
definitive agreement to be executed by such parties, and no such right of access
or use shall be deemed to exist by virtue of this Agreement.
4.5 Confidentiality.
(a) Disclosure of Terms. The Purchasers acknowledge that the
terms and conditions (collectively, the "Financing Terms") of this Agreement,
the Third Amended and Restated Investors Rights Agreement dated as of January 7,
2000, as amended by the First Amendment thereto dated as of February 11, 2000
and the Second Amendment thereto dated as of the Closing Date, (the "Investors
Agreement"), and all exhibits and amendments to such agreements (collectively,
the "Financing Agreements"), including their existence, shall be considered
confidential information and shall not be (i) disclosed by the Purchasers, or
any of their respective affiliates, directors, officers, employees, advisors or
agents (the "Purchasers' Representatives") to
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any third party, or (ii) used by the Purchasers or any of the Purchasers'
Representatives for any purpose other than the transactions contemplated by the
Financing Agreements; provided, however, that it shall not be a violation of
this Section 4.5 if (i) such disclosure by any Purchaser is, in such Purchaser's
opinion, required by law, rule or regulation, or (ii) the Financing Terms and/or
Financing Agreements have already been made public (unless made public by or
with the assistance of any Purchaser or any Purchaser's Representative in
violation of this Agreement).
(b) Press Releases. No announcement regarding the Financing Terms
or the Financing Agreements, including their existence, shall be made by the
Purchasers or the Company in a press release, conference, advertisement,
announcement, professional or trade publication, mass marketing materials or
otherwise to the general public without the prior written consent of the Company
or Purchasers holding a majority of the Shares, as applicable.
5. CONDITIONS PRECEDENT TO PURCHASERS' OBLIGATIONS
5.1 Conditions to Closing. The obligation of each Purchaser to purchase
and pay for the Shares to be delivered to it at the Closing shall be subject to
the satisfaction of the following conditions as of the Closing Date:
(A) Concurrent with the Closing, the Company, the Purchaser
and the required number of other signatories to the Third Amended and Restated
Investors Agreement shall have entered into the Second Amendment to the Third
Amended and Restated Investors Agreement in the form attached hereto as Exhibit
C;
(B) Each Purchaser shall have received from Holland & Xxxx
LLP, counsel for the Company, an opinion in substantially the form attached
hereto as Exhibit D, dated as of the Closing Date;
(C) The Company's stockholders shall have approved the Third
Amended and Restated Certificate of Incorporation, a copy of which is included
in Exhibit B attached hereto (the "Certificate of Incorporation") and shall have
waived any preemptive rights they may have;
(D) The Company shall have filed the Certificate of
Incorporation with the Delaware Secretary of State;
(E) Any applicable waiting periods under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), with respect to El Paso's acquisition of Shares in the Closing shall have
expired or otherwise been terminated;
(F) The Company shall provide a secretary's or officer's
certificate regarding (i) the accuracy of the representations and warranties of
the Company contained in this Agreement as of the Closing Date, (ii) the
satisfaction or fulfillment of all conditions to the Closing, and (iii) the
certification of all resolutions
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adopted by the Company's Board of Directors, or any committee thereof, and
stockholders in connection with the sale of the Shares or the transactions
contemplated by the Transaction Documents, which resolutions will be attached to
such certificate; and
(G) All representations and warranties contained in Section
3 hereof shall be true as of the Closing Date.
6. USE OF PROCEEDS
The Company shall use the proceeds from the sale of the Shares to
finance its commitments to the Brazilian Companies pursuant to the Amended and
Restated Vesper Shareholder Agreements dated as of December 23, 1999 among
Qualcomm do Brasil S.A., Xxxx Canada International, VeloCom Cayman Brasil
Holdings and Vesper Holding S.A., and as of December 23, 1999 among Qualcomm do
Brasil S.A., Xxxx Canada International (Vesper S.P.) Limited, VeloCom Cayman
Brasil Holdings and Vesper Sao Paulo Holding S.A., and the Subsidiaries, to fund
general corporate purposes including development activities, and to cover fees
and expenses related to the sale of the Shares.
7. MISCELLANEOUS
7.1 Governing Law. This Agreement shall be governed in all respects by
the laws of the State of Colorado as such laws are applied to agreements between
Colorado residents entered into and performed entirely in Colorado, except that
the General Corporation Law of the State of Delaware shall govern as to matters
of corporate law.
7.2 Survival. The representations, warranties, covenants and agreements
made herein shall survive any investigation made by any Purchaser and the
closing of the transactions contemplated hereby. All statements as to factual
matters contained in any certificate or other instrument delivered by or on
behalf of the Company pursuant hereto in connection with the transactions
contemplated hereby shall be deemed to be representations and warranties by the
Company hereunder solely as of the date of such certificate or instrument.
7.3 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
7.4 Entire Agreement; Amendment and Waiver. This Agreement, the
Exhibits, Schedules and the other documents expressly delivered pursuant hereto,
including the Investors Agreement, supersede any other agreement, whether
written or oral, that may have been made or entered into by the parties hereto
relating to the matters contemplated hereby and constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof, and no party shall be liable or bound to any other in any manner by any
representations, warranties, covenants and agreements except as specifically set
forth herein and therein. Neither this
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Agreement nor any term hereof may be amended, waived, discharged or terminated
except by a written instrument signed by the Company and the holders of a
majority of the Shares held by the Purchasers, and any such amendment, waiver,
discharge or termination shall be binding on all Purchasers, except that if such
amendment, waiver, discharge or termination creates an obligation by any
Purchaser, or if it adversely affects a particular Purchaser in a manner
different from the other Purchasers, the consent of the affected Purchaser shall
be required.
7.5 Specific Enforcement. Any Purchaser shall be entitled to specific
enforcement of its rights under this Agreement. Each party acknowledges that
money damages would be an inadequate remedy for its breach of this Agreement and
consents to an action for specific performance or other injunctive relief in the
event of any such breach.
7.6 Termination. If any of the closing conditions contained in Section
5 hereof have not been satisfied or waived by June 30, 2000, then either party
may terminate this Agreement by providing written notice to the other party of
its intent to terminate under this paragraph.
7.7 Severability. Unless otherwise expressly provided herein, a
Purchaser's rights hereunder are several rights, not rights jointly held with
any of the other Purchasers. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
7.8 Notices. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (i) upon personal delivery to the
party to be notified; (ii) when sent by confirmed telex or facsimile if sent
during normal business hours of the recipient, if not, then on the next business
day; (iii) five (5) days after having been sent by registered or certified mail,
return receipt requested, postage prepaid; or (iv) one (1) day after deposit
with a nationally recognized overnight courier, special next day delivery, with
verification of receipt. All communications shall be sent to the Company at 0000
Xxxxx Xxxxxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000, Attention: General
Counsel, with a copy to Holland & Xxxx LLP, 000 00xx Xxxxxx, Xxxxx 0000, Xxxxxx,
XX 00000, Attention: Xxxx X. Xxxx, and to a Purchaser at the address set forth
on Exhibit A attached hereto or at such other address as the Company or
Purchaser may designate by ten (10) days advance written notice to the other
parties hereto.
7.9 Counterparts; Facsimile. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument. This Agreement may be executed and
delivered by facsimile.
7.10 Future Financings; Purchaser Obligations. Nothing contained in
this Agreement or any Purchaser's prior dealings with the Company shall be
deemed to constitute a commitment on the part of any Purchaser to participate in
any future financings by the Company. In connection with any merger involving
the Company, the
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indemnification obligations of each Purchaser (if any) shall be several and not
joint, and shall in no event exceed the amount of consideration to be received
by such Purchaser in the merger.
7.11 Expenses. Each party hereto shall pay all fees and expenses
incurred by such party in connection with the negotiation and preparation of the
Transaction Documents and the consummation of the transactions contemplated
therein.
7.12 Indemnification.
(a) Indemnification by the Company. The Company shall indemnify
and hold each Purchaser harmless from and against any and all damages, losses,
liabilities, actions, suits, proceedings (including any inquiry or investigation
with respect thereto), claims, costs or expenses, including reasonable
attorneys' fees (collectively, the "Damages"), resulting from, arising out of or
in any way related to, any breach of a representation, warranty or covenant made
by the Company pursuant to this Agreement.
(b) Indemnification by the Purchasers. Each Purchaser shall,
severally and not jointly, indemnify and hold the Company harmless from and
against any and all Damages resulting from, arising out of or in any way related
to, any breach of a representation, warranty or covenant made by such Purchaser
pursuant to this Agreement.
(c) Claims. Any party claiming a right to indemnification under
this Section 7.12, respectively (an "Indemnified Party"), shall give prompt
written notice to the other party (the "Indemnifying Party") of (i) the
incurrence of Damages or (ii) the institution of any actions, suits, proceedings
(including any inquiry or investigation with respect thereto), each in
connection with which the Indemnified Party would be entitled to claim
indemnification from the Indemnifying Party under this Section 7.12
(respectively, "Indemnifiable Claims"), which written notice shall set forth the
nature of the Indemnifiable Claim, the factual basis therefor and shall
reference this Section 7.12.
(d) Third Party Claims. The respective obligations and
liabilities of each of the Purchasers and the Company regarding any
Indemnifiable Claims resulting from claims made by third parties ("Third Party
Claims") shall be subject to the following terms and conditions: The Indemnified
Party shall give the Indemnifying Party prompt written notice of any Third Party
Claims. If the Indemnified Party fails to give such prompt notice to the
Indemnifying Party, the Indemnified Party shall not forfeit its Third Party
Claims except to the extent that the Indemnifying Party has been prejudiced
thereby. Upon notice from the Indemnified Party, the Indemnifying Party may, but
shall not be required to, assume the defense of any such Third Party Claim,
including its compromise or settlement, and the Indemnifying Party shall pay all
reasonable costs and expenses thereof and shall be fully responsible for the
outcome thereof. The Indemnifying Party shall give notice to the Indemnified
Party of its intention to assume the defense of any such Third Party Claims
within ten (10) business
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days after the date of receipt of the Indemnified Party's notice in respect of
such Third Party Claims. No compromise or settlement in respect of any Third
Party Claims may be effected by the Indemnifying Party without the Indemnified
Party's prior consent (which consent shall not be unreasonably withheld). The
Indemnifying Party shall have no liability with respect to any compromise or
settlement thereof effected without its prior consent (which consent shall not
be unreasonably withheld). The Indemnifying Party shall not consent to, and the
Indemnified Party shall not be required to consent to, any settlement or entry
of any judgment that does not include as an unconditional term thereof the
giving by claimant or plaintiff to the Indemnified Party of a release, in form
and substance satisfactory to the Indemnified Party or Parties, from all
liabilities in respect of such claim, litigation or proceeding. If an
Indemnifying Party does not, within ten (10) business days after the Indemnified
Party's notice is given, give notice to the Indemnified Party of its assumption
of the defense of the Third Party Claims, the Indemnifying Party shall be deemed
to have waived its rights to control the defense thereof; provided, that the
Indemnifying Party shall be entitled to participate, at its own cost and
expense, in the defense of such Third Party Claims and the Indemnified Party
shall fully cooperate with the Indemnifying Party in respect of the defense of
such Third Party Claims. In the event that the Indemnifying Party assumes the
defense of any Third Party Claims, it shall not be responsible or liable for any
further costs or expenses of legal counsel incurred by the Indemnified Party in
connection with the defense thereof unless agreed to in advance by such
Indemnifying Party. If the Indemnified Party assumes the defense of any Third
Party Claim in accordance with this Section 7.12, the Indemnifying Party shall
pay all reasonable costs and expenses of such defense.
7.13 Survival. All representations and warranties contained in this
Agreement or certificate delivered in connection herewith shall survive for the
time period commensurate with the applicable statute of limitations.
8. CERTAIN DEFINITIONS.
"Acquired Subsidiaries" means Smartel S.A., PCN Investments S.A.,
Interloop Americas Inc., Telelatina S.A., Formus S.A., Telelatina Management
Company, Formus Communications Latin America LLC, Formus Communications
Argentina LLC, Formus Communications Bolivia LLC, Formus Communications Colombia
LLC, Formus Communications Peru LLC, Formus Communications Venezuela LLC, Formus
S.A., Formus Bolivia S.A., Formus Comunicaciones de Chile Limitada, Formus
Colombia S.A. E.S.P., Formus Peru S.A. and Telecomunicaciones Interactivas de
Venezuela C.A.
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling, controlled by or under common control with,
such Person; for purposes of this definition, "control" shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of an entity, whether through the
ownership of voting securities, by contract or otherwise.
"Brazilian Companies" shall mean Xxxxxx X.X., Xxxxxx Holding S.A.,
Vesper Sao Paulo Holding S.A., Vesper Sao Paulo S.A., Vesper Sao Paulo Cayman
Ltd., Vesper
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Cayman Ltd., BR Homeshopping Internet, S.A., BV Interativa Ltda., BV Interativa
Holdings, each of which is a sociedade anonima formed under the Laws of the
Federative Republic of Brazil.
"Companies" shall mean the Company, the Brazilian Companies and the
Subsidiaries (including the Acquired Subsidiaries).
"Contracts" shall mean any and all written contracts, agreements,
obligations, franchises, warranties, guaranties, undertakings, commitments,
understandings, arrangements, leases, licenses, registrations, easements,
rights-of-way, mortgages, bonds, notes and other instruments and obligations and
interests therein or rights thereunder, excluding any Permits, in each case
which are material to the business of any of the Companies, as the case may be.
"Encumbrances" shall mean any mortgage, imperfection of title, lien,
pledge, option, security interest, claim, charge or other encumbrance of any
kind whatsoever.
"Environmental Laws" shall mean any Laws or Legal Requirements relating
to human health and safety, pollution, protection or cleanup of the environment
(including, but not limited to, ambient air, surface water, groundwater, land
surface or subsurface strata and flora or fauna) and such other Laws or Legal
Requirements relating to the release, containment, removal, remediation,
response, cleanup or abatement of any sort of chemical or hazardous substance.
"Foreign Corrupt Practices Act" shall mean the Foreign Corrupt
Practices Act of the United States of America (15 U.S.C.A. Section 78dd) and any
successor statute or legislation.
"Foreign Official" means (i) an officer or employee of any government
other than the U.S. including but not limited to the Republic of Argentina, the
Republic of Peru, the Republic of Colombia, the Republic of Venezuela, the
Republic of Uruguay, the Republic of Chile or the Federative Republic of Brazil
or any political subdivision, department, agency or instrumentality thereof;
(ii) a Person acting in an official capacity for or on behalf of any such
government or department, agency or instrumentality; (iii) a member or official
of a political party in any country other than the U.S. including but not
limited to the Republic of Argentina, the Republic of Peru, the Republic of
Colombia, the Republic of Venezuela, the Republic of Uruguay, the Republic of
Chile or the Federative Republic of Brazil; (iv) a candidate for political
office in any country other than the U.S. including but not limited to the
Republic of Argentina, the Republic of Peru, the Republic of Colombia, the
Republic of Venezuela, the Republic of Uruguay, the Republic of Chile or the
Federative Republic of Brazil or (v) any other meanings or interpretations given
to the term under the Foreign Corrupt Practices Act as it applies to any of the
Companies.
"Investors Agreement" shall mean the Third Amended and Restated
Investors Agreement dated as of January 7, 2000, among the Company, the
Purchasers and certain
21
26
other stockholders of the Company, as amended by the First Amendment thereto
dated as of February 11, 2000, and the Second Amendment thereto dated as of the
Closing Date, a copy of which is attached hereto as Exhibit C.
"Judgments" shall mean any and all judgments, orders, directives,
rulings, decisions, injunctions, decrees or awards of any federal, state,
municipal, departmental or foreign court, arbitrator or administrative or
governmental authority, bureau or agency.
"Laws" shall mean all laws (whether statutory or otherwise), rules and
regulations of all governmental, judicial, legislative, executive,
administrative or regulatory authorities (federal, state, municipal,
departmental, foreign or otherwise).
"Legal Requirements" shall mean any and all applicable (i) Permits,
(ii) Laws, (iii) Judgments, and (iv) contracts with any federal, state,
municipal or departmental or foreign court, arbitrator or administrative or
governmental authority, bureau or agency relating to compliance with matters
described in (ii) and (iii) above.
"Liabilities" shall have the meaning set forth in Section 3.20 of this
Agreement.
"Licenses" shall have the meaning set forth in Section 3.18 of this
Agreement.
"Material Adverse Effect" shall have the meaning set forth in Section
3.1 of this Agreement.
"Permits" shall mean any and all permits, authorizations, approvals,
registrations, waivers, variances and licenses (i) under any (x) Laws or (y)
Judgments with any federal, state, municipal or departmental court, arbitrator
or administrative or governmental authority, bureau or agency relating to
compliance with the matters described in (x) above or (ii) granted by any
federal, state, municipal or departmental administrative or governmental
authority, bureau or agency (whether domestic or foreign).
"Permitted Encumbrances" shall mean undetermined or inchoate liens
arising or potentially arising under statutory provisions which have not at the
time been filed and of which written notice has not been served pursuant to Laws
or which relate to obligations not overdue or delinquent, minor imperfections in
title, if any, not material in nature and which, individually and in the
aggregate, do not and will not materially interfere with or affect the conduct
of any of the Companies' businesses.
"Person" shall mean any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other similar
entity or any government or political subdivision or any agency, department or
instrumentality thereof.
"Subsidiaries" or "Subsidiary" shall mean any subsidiary of the Company
over which the Company exercises control. For purposes of this definition,
"control" shall
22
27
mean the direct or indirect ownership by the Company of 50% or more of the
voting securities of such subsidiary.
"Tax" and "Taxes" shall mean (i) all taxes, assessments, levies,
imports, duties, license fees, registration fees or other similar governmental
charges including, without limitation, income taxes, franchise taxes, transfer
taxes or fees, value added taxes, sales taxes, excise taxes, ad valorem taxes,
withholding taxes, minimum taxes and social security or other employee-related
taxes and (ii) any interest, penalties or additions to tax imposed on a tax
described in clause (i) hereof imposed by any federal, state, municipal,
departmental or foreign governmental agency or political subdivision.
"Transaction Documents" shall mean this Agreement, the Third Amended
and Restated Investors Agreement, including the First and Second Amendments
thereto, and the Third Amended and Restated Certificate of Incorporation, each
as amended up to the Closing Date.
"Vendor Financings" shall mean the transactions contemplated by (i) the
Common Terms Agreement dated December 13, 1999 among Xxxxxx X.X., Xxxxxx Holding
S.A., ABN Amro, Xxxxxx Corporation, and LaSalle Bank National Association, (ii)
the Lucent Credit Agreement dated December 27, 1999 between Vesper Holding Sao
Paulo S.A., Vesper Sao Paulo S.A., Vesper Sao Paulo Cayman, Societe Generale,
New York branch, and the lenders party thereto, (iii) the Common Agreement dated
December 27, 1999 between Vesper Holding Sao Paulo S.A., Vesper Sao Paulo S.A.,
Vesper Sao Paulo Cayman, Citibank N.A., Banco Citibank S.A., and administrative
agents party thereto, and (iv) the three Secured Note Purchase Agreements each
dated December 13, 1999, between (A) Xxxxxx X.X., ABN Amro, Xxxxxxxx
Xxxxxxxxxxxx and Telefonaktiebolaget LM Ericsson, (B) Xxxxxx X.X., Xxxxxx
Corporation and LaSalle Bank National Association, and (C) Xxxxxx X.X., Nortel
Networks Corporation, ABN Amro and LaSalle Bank National Association, and all
documents or agreements executed in connection with any of the above.
23
28
IN WITNESS WHEREOF, the parties hereto have executed this Series C
Preferred Stock Purchase Agreement as of the date set forth in the first
paragraph hereof.
COMPANY:
VELOCOM INC.
By:
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Corporate Development Officer
PURCHASERS:
EL PASO ENERGY COMMUNICATIONS COMPANY
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
--------------------------------------------
Xxxxx X. XxXxxxxxxx
--------------------------------------------
Xxxxx Xxxxxxxx
--------------------------------------------
Xxxx Xxxxx
--------------------------------------------
Xxxxxxx Xxxxx
--------------------------------------------
Xxxxxx Xxxxxxxxxxx
24
29
--------------------------------------------
Xxxxxxxx Xxxxxxx Xxxxx
--------------------------------------------
Xxxxx Xxxxxxxx
25
30
SERIES C STOCK PURCHASE AGREEMENT
EXHIBIT A
SCHEDULE OF PURCHASERS
NUMBER OF
SHARES OF SERIES C AGGREGATE PURCHASE
NAME AND ADDRESS PREFERRED STOCK PRICE
---------------- ------------------ ------------------
El Paso Energy Communications
Company
0000 Xxxxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000 5,000,000 $50,000,000
Xxxxx X. XxXxxxxxxx 11,000 $ 110,000
Xxxxx Xxxxxxxx 2,500 $ 25,000
Xxxx Xxxxx 6,000 $ 60,000
Xxxxxxx Xxxxx 20,000 $ 200,000
Xxxxxx Xxxxxxxxxxx 50,000 $ 500,000
Xxxxxxxx Xxxxxxx Xxxxx 10,000 $ 100,000
Xxxxx Xxxxxxxx 10,000 $ 100,000
----------- -----------
TOTAL 5,109,500 $51,095,000
A-1
31
EXHIBIT B
FORM OF THIRD AMENDED RESTATED INVESTORS AGREEMENT
FILED AS EXHIBIT 4.1
B-1
32
EXHIBIT C
FORM OF SECOND AMENDMENT TO THIRD AMENDED AND RESTATED
INVESTORS AGREEMENT
FILED AS EXHIBIT 4.1
C-1
33
SERIES C STOCK PURCHASE AGREEMENT
EXHIBIT D
FORM OF LEGAL OPINION
D-1
34
EXHIBIT D
FORM OF LEGAL OPINION
We are of the opinion that:
1. The Company is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware, with full corporate
power and authority to own, lease and operate its properties and to conduct its
business. The Company is qualified to do business and in good standing in each
jurisdiction in the United States where the failure to be so qualified would
result in a material adverse effect on the business, operations, assets,
prospects or condition (financial or otherwise) of the Company (a "Material
Adverse Effect").
2. The authorized capital stock of the Company, as of the date hereof,
prior to giving effect to the sale of the Series C Preferred Stock, consists of
(a) one hundred twenty million four hundred twenty-one thousand five hundred
seventy-seven (120,421,577) shares of Common Stock, of which (i) one hundred
thirteen million nine hundred forty-one thousand six hundred sixty seven
(113,941,667) shares are designated as Voting Common Stock, eleven million two
hundred eighty three thousand eight hundred twenty six (11,283,826) shares of
which are issued and outstanding, and (ii) six million four hundred seventy-nine
thousand nine hundred ten (6,479,910) shares are designated as Non-Voting Common
Stock, none of which are issued and outstanding, and (b) eighty-nine million two
hundred ninety-six thousand five hundred seventy-seven (89,296,577) shares of
Preferred Stock, of which (i) thirty one million (31,000,000) shares are
designated as Series A Preferred Stock, thirty million seven hundred six
thousand three hundred thirty three (30,706,333) shares of which are issued and
outstanding, (ii) forty two million six hundred sixty six thousand six hundred
sixty seven (42,666,667) shares are designated as Series B Preferred Stock, of
which twenty million one hundred thirty-six thousand four hundred eleven
(20,136,411) shares are issued and outstanding, (iii) six million four hundred
seventy-nine thousand nine hundred ten (6,479,910) shares are designated as
Series B-1 Preferred Stock, one million nine hundred sixty seven thousand seven
hundred fifty four (1,967,754) of which shares are issued and outstanding, and
(iv) five million one hundred fifty thousand (5,150,000) shares are designated
as Series C Preferred Stock, none of which are issued and outstanding. To our
knowledge, except for the six million two hundred ninety thirty three thousand
three hundred thirty three (6,233,333) options outstanding; except for the
conversion privileges of the Series A Preferred Stock, Series B Preferred Stock
and Series B-1 Preferred Stock; except for the shares of Series B Preferred
Stock to be purchased pursuant to the Series B Preferred Stock Purchase
Agreement dated as of December 6, 1999 among the Company and the Purchasers
listed on the Schedule of Purchasers attached thereto, as amended by Amendment
No. 1 thereto, dated as of December 31, 1999; except for the shares of Series B
Preferred Stock and Series B-1 Preferred Stock to be purchased pursuant to the
Follow-On Series B/B-1 Preferred
1
35
Stock Purchase Agreement dated as of December 20, 1999 among the Company and the
Purchasers listed on the Schedule of Purchasers attached thereto; except for the
shares of Common Stock to be issued pursuant to the Warrant Agreement dated
February 11, 2000 between the Company and Intel Corporation; and except as
disclosed in the Agreements or the exhibits or schedules attached thereto, there
are no options, warrants, conversion privileges, preemptive rights, rights of
first refusal or other rights to purchase from the Company any of its equity
securities that are outstanding.
3. All the shares of capital stock of the Company outstanding prior to
the Closing Date have been duly authorized, validly issued and are fully paid
and nonassessable. The rights, preferences and privileges of the Series C
Preferred Stock are as stated in the Certificate of Incorporation.
4. To our knowledge, Schedule 3.12 to the Purchase Agreement sets forth
the ownership structure of the Company, its Subsidiaries and the Brazilian
Companies.
5. The Company has the corporate power and authority to enter into the
Agreements and to issue, sell and deliver to the Purchasers shares of the Series
C Preferred Stock in accordance with the Purchase Agreement.
6. Each of the Agreements has been duly authorized, validly executed
and delivered by the Company and is a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms, except as
rights to indemnity under Section 2.5 of the Investors Agreement may be limited
by applicable laws and public policy and except as enforcement may be limited by
applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or
other similar laws affecting creditors' rights, and subject to general equity
principles and to limitations on availability of equitable relief, including
specific performance.
7. The issuance, sale and delivery of the Series C Preferred Stock
pursuant to the Purchase Agreement has been duly authorized by the Company and,
upon delivery to the Purchasers against payment therefor in accordance with the
Purchase Agreement and the terms of the Series C Preferred Stock, the shares of
Series C Preferred Stock will be validly issued, fully paid and nonassessable.
8. The shares of Common Stock to be issued upon conversion of the
Series C Preferred Stock have been duly authorized and reserved for issuance by
the Company and, when issued and delivered upon conversion of the Series C
Preferred Stock in accordance with the Certificate of Incorporation, such shares
of Common Stock will have been validly issued and will be fully paid and
nonassessable.
9. The execution of the Agreements by the Company, the compliance by
the Company with the terms thereof, and the offer and sale of the Series C
Preferred Stock pursuant to the Purchase Agreement (a) do not and will not
violate any provision of the Company's Certificate of Incorporation or Bylaws,
and (b) do not
2
36
violate or contravene (i) the laws of the State of Colorado, the General
Corporation Law of the State of Delaware or any Federal law of the United States
of America applicable to the Company, (ii) any order, writ, judgment,
injunction, decree, determination or award which has been entered against the
Company and of which we have knowledge, the default, violation or contravention
of which would materially and adversely affect the Company, its assets,
financial condition or operations or (iii) any provision of the Series A
Preferred Stock Purchase Agreement dated as of January 26, 1999 among the
Company and the Purchasers on the Schedule of Purchasers attached thereto; the
Second Series A Preferred Stock Purchase Agreement dated as of May 7, 1999 among
the Company and the Purchasers on the Schedule of Purchasers attached thereto;
the Series B Preferred Stock Purchase Agreement dated as of December 6, 1999
among the Company and the Purchasers listed on the Schedule of Purchasers
attached thereto, as amended by Amendment No. 1 thereto, dated as of December
31, 1999; and the Follow-On Series B/B-1 Preferred Stock Purchase Agreement
dated as of December 20, 1999 among the Company and the Purchasers listed on the
Schedule of Purchasers attached thereto.
10. All consents, approvals, authorizations or orders of, and filings,
registrations, and qualifications with, any regulatory authority or governmental
body in the United States required for the consummation by the Company of the
transactions contemplated by the Purchase Agreement have been made or obtained,
except for any filings required under federal or state securities laws not
required to have been made as of the date hereof.
11. To our knowledge, there is no suit, action, claim, arbitration or
similar proceeding or investigation pending or threatened against the Company or
against the Company's business or assets which, if adversely resolved, would,
individually or in the aggregate, be reasonably likely to have a Material
Adverse Effect.
12. Subject to the accuracy of the Purchasers' representations in
Section 4 of the Purchase Agreement and assuming all required filings are made
under federal and state securities laws, the offer, sale and issuance of the
Series C Preferred Stock pursuant to the Purchase Agreement constitutes a
transaction exempt from the registration requirements of Section 5 of the
Securities Act of 1933, as amended (the "Securities Act") and from the
securities registration requirements of the Colorado securities laws. In
addition, subject to the accuracy of the Purchasers' representations in Section
4 of the Purchase Agreement, assuming such securities are not being exchanged in
a case under title 11 of the United States Code, and assuming no commission or
other remuneration is paid or given directly or indirectly for soliciting such
exchange, the issuance of the Common Stock issuable upon conversion of the
Series C Preferred Stock would also constitute a transaction exempt from the
registration requirements of Section 5 of the Securities Act and from the
securities registration requirements of the Colorado securities laws.
3
37
13. The Company is not a "holding company" or an "affiliate" of a
"holding company" or a "subsidiary company" of a "holding company" as each such
term is defined in the Public Utility Holding Company Act of 1935, as amended.
4
38
EXECUTION COPY
SCHEDULES TO
VELOCOM/SERIES C PREFERRED STOCK PURCHASE AGREEMENT
39
KEY TO SCHEDULES TO SERIES C STOCK PURCHASE AGREEMENT
Argentina LLC VeloCom Argentina Holdings LLC
Xxxx Canada Xxxx Canada International
Bolivia LLC VeloCom Bolivia Holdings LLC
Brasil Holdings VeloCom Cayman Brasil Holdings (formerly WLL Cayman
S.P. Company)
BRHS BR Homeshopping Internet S.A.
BV Ltda BV Interativa Ltda.
Centennial Centennial Fund V, Centennial Entrepreneurs Fund
and Centennial Holdings
Centennial Entrepreneurs Fund Centennial Entrepreneurs Fund V, L.P.
Centennial Fund V Centennial Fund V, L.P.
Centennial Holdings Centennial Holdings I, LLC
Chile Holdings VeloCom Cayman Chile Holdings
Chile LLC VeloCom Chile Holdings LLC
Colombia LLC VeloCom Colombia Holdings LLC
Crescendo Eagle Ventures, Crescendo World Fund and Crescendo
III
Crescendo III Crescendo III, L.P.
Crescendo World Fund Crescendo World Fund, LLC
Eagle Ventures Eagle Ventures WF, LLC
Formus Formus Communications Inc.
Formus Bolivia Formus Bolivia S.A.
Interativa BV Interativa Holdings
Interloop BVI Interloop Americas Inc.
i
40
Interloop Colombia Interloop S.A. Nacional de Telecomunicaciones E.S.P.
PCN PCN Investment S.A.
Peru LLC VeloCom Peru Holdings LLC
Qualcomm XXXXXXXX Xxxxxxxxxxxx
Qualcomm Brasil QUALCOMM do Brasil S.A.
SLI SLI Wireless S.A.
Smartel Smartel S.A.
Taquari Taquari Participacoes S.A.
Telecom Telecom Partners II, L.P.
Telelatina Telelatina S.A.
TMC Telelatina Management Company LLC
VeloCom VeloCom Inc. (also referred to as the "Company")
VeloCom Argentina The surviving company of the merger of Smartel
S.A., Formus S.A. and Telelatina S.A.
VeloCom Brasil VeloCom do Brasil Ltda. (formerly WLL Brasil
Holdings, Ltda.)
VeloCom Chile Includes all of the VeloCom subsidiaries including
VeloCom Chile Ltda. and VeloCom Comunicaciones
Chile Ltda.
VeloCom Colombia VeloCom Colombia S.A. E.S.P.
VeloCom LA VeloCom Latin America Holdings
VeloCom Peru VeloCom Peru S.A.
VeloCom Venezuela VeloCom Venezuela C.A.
Venezuela LLC VeloCom Venezuela Holdings LLC
ii
41
Xxxxxx Xxxxxx S.A. (formerly Mirror S.A. and/or Canbra
Telefonica, S.A.)
Vesper Cayman Vesper Cayman Ltd.
Vesper X.X. Xxxxxx Sao Paulo S.A. (formerly Megatel do Brasil
S.A.)
Vesper Sao Paulo Cayman Vesper Sao Paulo Cayman Ltd.
Vesper Holding Vesper Holding S.A. (formerly Mirror Holding S.A.
and/or Canbra Holding S.A.)
Vesper Sao Paulo Holding Vesper Sao Paulo Holding S.A. (formerly MegaTel
Holding S.A.)
iii
42
INDEX OF SCHEDULES
3.4 Consents and Approvals
3.5(a) Compliance With Laws
3.5(b) Material Permits
3.6 Patent and Trademark Rights
3.8 Contracts
3.12 Subsidiaries
3.13 Capitalization of Subsidiaries
3.14(a) Share Ownership of Company
3.14(b) Agreements Relating to Equity Interests in Companies
3.18 Licenses
3.20 Liabilities
3.22(a) Collective Bargaining Agreements or Employment Agreements
Not Terminable at Will
3.22(b) Employees and Directors of the Company
3.23 Employee Benefit Plans
3.24 Recordkeeping Compliance
iv
43
SCHEDULE 3.4
CONSENTS AND APPROVALS
VELOCOM
1. Filing of Form D with the United States Securities and Exchange
Commission and applicable state securities authorities will be required
post-Closing.
2. Approval of Xxxx-Xxxxx-Xxxxxx filing made by the Company and El Paso.
3. Waiver of pre-emptive rights by the Company's stockholders which will be
obtained prior to closing.
1
44
SCHEDULE 3.5(a)
COMPLIANCE WITH LAWS
INTERLOOP COLOMBIA
Interloop Colombia has not made certain payments in respect of its
license obligations, the result of which could be a loss of this
entity's license. In addition, the buildout requirements in respect of
this license have not been fully complied with. Interloop Colombia has
also not complied with all legal requirements relating to its financial
statements.
1
45
SCHEDULE 3.5(b)
MATERIAL PERMITS
BRHS
BRHS was registered with Brazilian Federal tax authorities under
registration No. 03.506.141/0001-79.
BV LTDA.
BV Ltda. was registered with Brazilian Federal tax authorities under
registration No.03.635.975/0001-84.
VESPER HOLDING
Vesper Holding was registered with Brazilian Federal tax authorities
under registration No. 02.763.387/0001-6.
VESPER SAO PAULO HOLDING
Vesper Sao Paulo Holding was registered with Brazilian Federal tax
authorities under registration No. 03.008. 468/0001-10.
VESPER
1. Termo de Autorizacao do Servico Telefonico Fixo Comutado, Modalidade
Local, Que Entre Si Celebram A Agencia Nacional de Telecomunicacoes -
ANATEL e Vesper.
2. Termo de Autorizacao do Servico Telefonico Fixo Comutado, Modalidade
Longa Distancia Nacional de Ambito Intra-Regional, Que Entre Si
Celebram A Agencia Nacional de Telecomunicacoes - ANATEL e Vesper.
3. Vesper was registered with Brazilian Federal and State tax
authorities under registrations No. 02.730.101/0001-4 and 85297791,
respectively.
4. License for Packet Switched Network Services issued by Anatel on
September 23, 1999.
5. License for Circuit Switched Network Services issued by Anatel on
September 23, 1999.
6. License for Dedicated Line Services issued by Anatel on September
23, 1999.
1
46
7. License for Special Services of Audio and Video Signal
Retransmission issued by Anatel on September 23, 1999.
8. License for Network Transport issued by Anatel on September 23,
1999.
VESPER S.P.
1. Termo de Autorizacao do Servico Telefonico Fixo Comutado, Modalidade
Local, Que Entre Si Celebram A Agencia Nacional de Telecomunicacoes -
ANATEL e Vesper S.P.
2. Termo de Autorizacao do Servico Telefonico Fixo Comutado, Modalidade
Longa Distancia Nacional de Ambito Intra-Regional, Que Entre Si
Celebram A Agencia Nacional de Telecomunicacoes - ANATEL e Vesper S.P.
3. Vesper S.P. was registered with Brazilian Federal and State tax
authorities under registrations No. 02.629.188/0001-6 and
115.322.817.110, respectively.
4. License for Packet Switched Network Services issued by Anatel on
September 23, 1999.
5. License for Circuit Switched Network Services issued by Anatel on
September 23, 1999.
6. License for Dedicated Line Services issued by Anatel on September
23, 1999.
7. License for Special Services of Audio and Video Signal issued by
Anatel on September 23, 1999.
8. License for Retransmission issued by Anatel on September 23, 1999.
9. Liceneca para transporte de dados - ANATEL ("data transport license"
under analysis regarding all possible applications)
VELOCOM ARGENTINA
TELELATINA S.A.
1. By Resolution 2617SC/97 issued by the Secretary of Communications on
September 4, 1997, Telelatina was granted a license to provide Value
Added Services, Data Transmission Services and Videoconferencing
services nationwide.
2. By Resolution 3064SC/97, issued by the Secretary of Communications
on October 15, 1997, Telelatina was granted an authorization to use,
the frequency bandwidth from 3,450 MHz to 3,475 MHz and from 3,550 MHz
to 3,575 MHz.
2
47
The use of these frequencies is governed by Resolution 2879SC/97 as
amended by 869SC/98.
SMARTEL S.A.
1. By Resolution 1130SC/98 issued by the Secretary of Communications on
May 7, 1998, Smartel was granted a license to provide Value Added
Services, Data Transmission Services, Broadcasting signals carriage
services and Videoconferencing services.
2. By Resolution 1247SC/98, issued by the Secretary of Communications
on May 22, 1998, Smartel was granted an authorization to use, for the
AMBA (which area comprises the City of Buenos Aires and certain
locations nearby), Xxxxxxx, Cordoba and Xxxxxxx the frequency bandwidth
from 26,850 GHz to 27,350 GHz. and from 31,075 GHz. to 31,150 GHz. The
use of these frequencies is governed by Resolution 869SC/98, as
amended.
FORMUS S.A.
Bands: E Band which totals 575 MHz and consists of the following
frequencies: 25.85 to 26.35 GHz and 29.175 to 29.25 GHz (awarded
November 1998). This spectrum assignment may initially be used only in
the following cities: AMBA (Area Multiple Buenos Aires), La Plata and
Cordoba.
Services: Data transmission, value added and videoconferencing (awarded
September and November 1998).
VELOCOM COLOMBIA
Bands: 300 MHz at 38 GHz; channels 13, 14, 17 (awarded November 1998).
Services: Local carrier and value added (awarded August 1998 and May
1999)
VELOCOM PERU
Bands: 400 MHz at 38 GHz; channels 1-4 (awarded May 1999).
Services: Local carrier and value added (awarded April 1999).
INTERLOOP COLOMBIA
1. License to provide Basic Commuted Telephone Services in Colombia.
Such license was granted by Resolution 4262 issued on 9/23/97, expiring
on 12/23/2007, the scope of this license shall be for the territory of
Santa Fe de Bogota, DC (Departamento de Curdinamarca), Cali
(Departamento de Xxxxx del Cauca), Medellin (Departamento de
Antioquia), Barranquilla (Departamento de Atlantico), Bucaramanga
(Departamento de Santander), Cartagena (Departamento xx Xxxxxxx), Santa
Xxxxx (Departamento de Xxxxxxxxx), Pereira (Departamento
3
48
de Risaralda), Cucuta (Departamento del Norte de Santander) y
Villavicencio (Departamento del Meta).
2. License to provide Telematics and Value Added Services, and the
constitution of an Associate Value Added Service Network, which was
granted by Resolution 4472 issued on 10/10/97 expiring on 10/10/2007.
3. Interloop Colombia was authorized to use the radioelectric spectrum
as per Resolution 5195 issued on 29/12/97. By Resolution 106 of 1999,
Interloop was authorized to use exclusively bands 23 and 3.4 GHz within
the cities where it had been awarded with a license until 9/22/2007.
ODECAR S.A.
1. Odecar S.A. was assigned, on December 14, 1999, per Resolution No.
404.99 of the Direccion Nacional de Comunicaciones of Uruguay, the
radioelectric sub-blocks 24.600 GHz - 24.850 GHz in Montevideo and
25,100 GHz - 25.350 GHZ, 25.600 GHZ - 25.850 GHz and 26.100 GHz -
26.350 GHz in Xxxxxxxxx for use in providing commercial data
transmission service.
4
49
SCHEDULE 3.6
PATENT AND TRADEMARK RIGHTS
VELOCOM
1. Applications for trademark for "VELOCOM" and "VESPER" have been
filed in:
Argentina
Bolivia
Brazil (VeloCom only)
Colombia
Chile
Mexico
Paraguay
Peru
Uruguay
Venezuela
United States of America
All applications are pending.
2. Applications for trademark for "VELOCOMM" have been filed in:
Argentina
Brazil
Colombia
Chile
Mexico
Peru
Uruguay
Venezuela
United States of America
All applications have been abandoned or will be abandoned.
3. The domain name "VELOCOM" has been secured by the Company.
1
50
VESPER
1. Applications for the following trademarks have been filed in Brazil:
"XXXXXXX"
"ATIMO"
"VESPER"
"VESPER IDEAL"
All applications are pending.
BRHS
1. The following domain names have been secured by BRHS:
"xxxx.xxx.xx"
"xxxx.xxx.xx"
"xxxxxxxxxxxx.xxx.xx"
"xxxxxxx.xxx.xx"
"xxxxxxx.xxx.xx"
TMC
1. Trademark Application No. 2.210.763 filed on March 29, 1999 to cover
all services in International Class 38. This application has
encountered an opposition by Radio Mitre S.A. on the basis of the
trademark "XXXXXX LATINA," Registration No. 1.675.177 in International
Class 38 which is currently being resolved.
2. Trademark Application No. 2.210.764 filed on March 29, 1999 to cover
all services in International Class 38.
3. Trademark Application No. 2.210.765 filed on March 29, 1999 to cover
all services in International Class 38.
4. Trademark application for "TMC": Application No. 2.210.766 filed on
March 29, 1999 to cover all services in International Class 38. This
application has encountered an opposition by T.M.C. Learreta y Xxxxxxx
X.X., Xxxxxxx, Xxxxxxxx Xxxx / Learreta, Xxxxxxxx, on the basis of
their trademark "TMC COMPUTACION", Registrations Nos. 1.661.729 granted
on March 23, 1998 covering all services in International Class 42, and
1.666.293 granted on April 24, 1998 covering all goods in International
Class 9.
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VELOCOM ARGENTINA
1. "VELOCOM", application No. 2.230.034, filed on July 21, 1999,
in the name of VeloCom Inc., to cover "Telecommunication services,
namely wireless local loop transmission of voice and data; providing
connecting to a global computer network in international class 38. This
application did not encounter oppositions by third parties. Status:
pending.
2. VELOCOM HOME : application No. 2.269.109, filed on February 21,
2000, in the name of VeloCom Inc., to cover all services in
international class 38. This application has not yet been published for
opposition purposes.
3. VELOCOM PROFESSIONAL : application No. 2.269.110, filed on
February 21, 2000, in the name of VeloCom Inc., to cover all service in
international Class 38. This application has not yet been published for
opposition purposes.
4. VELOCOM CORPORATE : application No. 2.269.111, filed on
February 21, 2000, in the name of VeloCom Inc., to cover all services
in international Class 38. This application has not yet been published
for opposition purposes.
5. VELOCOM DATA : application No. 2.269.112, filed on February
21,2000, in the name of VeloCom Inc., to cover all services in
International Class 38. This application has not yet been published for
opposition purposes.
6. VELOCOM HIGH VELOCITY COMMUNICATIONS and device, application
No. 2.269.114, filed on February 21, 2000, in the name of VeloCom
Inc., to cover all services in International Class 38. This application
has not yet been published for opposition purposes.
TELELATINA S.A.
1. Trademark application for "LATINWAY": international class No. 38
(minutes 2,173,040) filed on September 2, 1998, and published in the
Trademark Bulletin on October 28, 1998. This application has
encountered an opposition by Miniphone S.A. based on its trademark
"LATINNET (COMUNICACIONES PERSONALES LATINOAMERICANAS)" Registration
No. 1.576.565 of international class 38.
2. Trademark application for "LATINCOM": international class No. 38
(minutes 2,173,041) filed on September 2, 1998, and published in the
Trademark Bulletin on October 28, 1998. This application has
encountered an opposition by
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Miniphone S.A. based on its trademark "LATINNET (COMUNICACIONES
PERSONALES LATINOAMERICANAS)" Registration No. 1.576.565 of
international class 38.
3. Trademark application for "LATINLINK": international class No. 38
(minutes 2,173,038) filed on September 2, 1998, and published in the
Trademark Bulletin on October 28, 1998. This application has
encountered an opposition by Miniphone S.A. based on its trademark
"LATINNET (COMUNICACIONES PERSONALES LATINO-AMERICANAS)" Registration
No. 1.576.565 of international class 38.
4. Trademark application for "LATINDATA", international class No. 38
(minutes 2,173,039) filed on September 2, 1998, and published in the
Trademark Bulletin on October 28, 1998. This application has
encountered an opposition by Miniphone S.A. based on its trademark
"LATINNET (COMUNICACIONES PERSONALES LATINOAMERICANAS)" Registration
No. 1.576.565 of international class 38.
5. Trademark application for "TELELATINA" and logo, Application No.
2.198.589 filed on January 20, 1999 to cover all services in
International Class 38. This application has encountered an opposition
by Radio Mitre S.A. on the basis of their trademark "XXXXXX LATINA",
Registration No. 1.675.177, in International Class 38.
6. Please note that according to the Trademarks Office database
FEDERACION DE COOP. DE TELECOMUNICACIONES DE LA REP. ARG. LTDA owns the
trademark application of "TELELATINA", Application No. 2.091.831, filed
on July 14, 1997, to cover all services in Int. Class 38.
7. Trademark application for "ICONWEB": application No. 2.210.176,
filed by Xx. Xxxxxx Xxxxx de Dios on March 25, 1999, to cover all
services in International Class 38. This application did not encounter
oppositions by third parties. This application trademark is in process
of being assigned by Xx. Xxxxxx Xxxxx de Dios in favor of Telelatina
8. Trademark application for "WIDENET": application No. 2.210.177,
filed by Xx. Xxxxxx Xxxxx de Dios on March 25, 1999, to cover all
services in International Class 38. This application did not encounter
oppositions by third parties. This application trademark is in process
of being assigned by Xx. Xxxxxx Xxxxx de Dios in favor of Telelatina.
9. Trademark application for "XXXXXXX.XXX": application No. 2.217.827,
filed by Xx. Xxxxxx Xxxxx de Dios on May 6, 1999, to cover all services
in International Class 38. This application has been published in the
Trademark Bulletin for opposition purposes. The term to oppose this
trademark expires on August 27, 1999. Please note that the following
applications have not
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yet been published for opposition purposes. This application trademark
is in process of being assigned by Xx. Xxxxxx Xxxxx de Dios in favor of
Telelatina.
10. Trademark application for "W": application No. 2.222.712, filed by
Xx. Xxxxxx Xxxxx de Dios on June 4, 1999, to cover all services in
International Class 38. This application trademark is in process of
being assigned by Xx. Xxxxxx Xxxxx de Dios in favor of Telelatina.
11. Trademark application for "WIDENET W": application No. 2.223.045,
filed by Xx. Xxxxxx Xxxxx de Dios on June 7, 1999, to cover all
services in International Class 38. This application trademark is in
process of being assigned by Xx. Xxxxxx Xxxxx de Dios in favor of
Telelatina.
12. Trademark application for "WIDENET": application No. 2.223.046,
filed by Xx. Xxxxxx Xxxxx de Dios on June 7, 1999, to cover all
services in International Class 38. This application trademark is in
process of being assigned by Xx. Xxxxxx Xxxxx de Dios in favor of
Telelatina.
13. Trademark application for "I": application No. 2.230.853, filed by
Xx. Xxxxxx Xxxxx de Dios on July 26, 1999, to cover all services in
International Class 38. This application trademark is in process of
being assigned by Xx. Xxxxxx Xxxxx de Dios in favor of Telelatina.
SMARTEL S.A.
1. Trademark application for "SMARTEL": Application No. 2.196.692,
filed on January 8, 1999, to cover all goods in International Class 9.
This application has encountered oppositions by: a) TELEFONICA DE
ARGENTINA S.A., on the basis of "SMART-NET", Application No. 2.113.255,
filed on November 7, 1997, to cover all services in International Class
38; b) STARTEL S.A., on the basis of "STARTEL", Registration No.
1.574.537, granted on September 7, 1995, covering all goods in
International Class 9, and on the basis of their corporate name
STARTEL; and c) DATCO S.A., on the basis of "SMARTTIME", Registration
No. 1.608.708, granted on July 29, 1996 to cover all goods in
International Class 9.
2. Trademark application for "SMARTEL": Application No. 2.196.693,
filed on January 8, 1999, to cover all services in International Class
38. This application encountered oppositions by: a) TELEFONICA DE
ARGENTINA S.A., on the basis of "SMART-NET", Application No. 2.113.255,
filed on November 7, 1997 to cover all services in International Class
38; and b) STARTEL S.A., on the basis of "STARTEL S.A. SERVICIOS
ARGENTINOS DE TELECOMUNICACIONES", Registration No. 1.574.520, granted
on September 7, 1995 covering all services in International Class 38,
and on the basis of their corporate name STARTEL.
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SCHEDULE 3.8
CONTRACTS
VELOCOM
1. Equity Subscription Agreement dated as of June 30, 1998 between the
Company, Telecom Partners, Centennial Fund V, Centennial Entrepreneurs
Fund, Centennial Holdings I, IAI World Fund, L.L.C., Eagle Ventures,
Xxxx X. Xxxxxx, Xxxxxx XxXxxxxx and Xxx Xxxxx, as amended by the First
Amendment to the Seed Round Agreement dated January 6, 1999, and the
Second Amendment to the Seed Round Agreement dated May 21, 1999.
2. Letter Agreement dated as of December 4, 1998 between the Company,
Telecom, Centennial, Crescendo World Fund, Eagle Ventures, Xxxx X.
Xxxxxx, Xxxxxx XxXxxxxx, Xxx Xxxxx, Xxxxx X. Xxxxxxx and Xxxx Xxxxxx.
3. Irrevocable Equity Contribution Agreement dated December 7, 1998 by
and among the Company, Telecom, Crescendo World Fund and Centennial.
4. Security Agreement dated December 8, 1998 by and among Telecom,
Centennial Fund V and Crescendo World Fund.
5. Letter Agreement dated December 8, 1998 by and among Telecom,
Centennial Fund V and Crescendo World Fund.
6. Control Agreement dated December 8, 1998 by and among Crescendo
World Fund, Centennial Fund V, Telecom, BankBoston, N.A. and Boston
1784 Funds.
7. Equity Subscription Agreements between the Company and each of
Xxxxxxx Xxxxxx, Xxxxx Xxxxxxx, R. Xxxxxx House, REINCO Corp., Xxxxxxx
X. Xxxxx, C. Xxxxx Xxxxx, Xxxxxxx Xxxxxxxxxx, North River Ventures,
Inc. Pension Plan, Xxxxxxx XxXxxxxxx, Xxxxxxxx Xxxx, Xxxx Xxxxxxx, Xxxx
Xxxxx, Xxxxxxx Xxxxxxxxx, Xxxxx Xxxxxxx and Xxxxx Xxxxx.
8. Joinder Agreements between the Company and each of R. Xxxxxx House,
REINCO Corp., Xxxxxxx Xxxxxx, Xxxxxxx X. Xxxxx, Xxxxxxxx Xxxx, Xxxx
Xxxxxxx and Xxxxx Xxxxx.
9. Series A Preferred Stock Purchase Agreement dated as of January 26,
1999 between the Company, Telecom, Centennial and Crescendo.
10. Pro Rata Letter Agreements dated as of March 31, 1999 between the
Company and each of Telecom, Centennial, Crescendo, REINCO Corp., C.
Xxxxx Xxxxx, R. Xxxxxx House, Xxxxxxx Xxxxxx, Xxxxx X. Xxxxxxx, Xxxxxx
XxXxxxxx, Xxxxxxx X. Xxxxxx and Xxxxx X. Xxxxxx.
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11. Second Irrevocable Equity Contribution Agreement dated as of April
16, 1999 between the Company, Telecom, Crescendo, Centennial, Xxxxx X.
Xxxxxxx, Xxxxxxx X. Xxxxxx, Xxxx X. Xxxxxx, Xxxxxx XxXxxxxx, C. Xxxxx
Xxxxx, R. Xxxxxx House and Xxxxxxx Xxxxxx.
12. Second Series A Preferred Stock Purchase Agreement dated as of May
7, 1999 between the Company, Telecom, Crescendo, Centennial, Xxxxx X.
Xxxxxxx, Xxxxxxx X. Xxxxxx, Xxxx X. Xxxxxx, Xxxxxx XxXxxxxx, C. Xxxxx
Xxxxx, R. Xxxxxx House and Xxxxxxx Xxxxxx.
13. Employment Letters between the Company and each of Xxxxx Xxxxxxx,
Xxxxxxx Xxxxxxxxx, Xxxxx Xxxxxxx, Xxxxx Xxxxxx, Xxxxxxx Xxxxxxx, Xxxx
Xxxxx, Xxxxxxxx Xxxxxxxx, R. Xxxxxx House, Xxxx Xxxxx, Xxxxxxx Xxxxx,
Xxxxx Xxxxx, Xxxxxxx Xxxxxx, Xxxxx Xxxxxxxxx, Xxxx Xxxxxx, Xxxxx
Xxxxxx, Xxxxxxx Xxxxxx, Xxxx Xxxxxxx, Diego Xxxxxxxxx, Xxxxxxxxx
("Xxxxxx") Xxxxxxx, Xxxx Xxxxxxx, Xxxx Xxxxxxxx, Xxxxxxx Xxxxxxxxx,
Xxxx Xxxxx, Xxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxx XxXxxxxxxx, Xxxxxxx
Xxxxxx and Xxxxxxxxx Xxxx.
14. Stock Option Agreements between the Company and each of Xxxxx
Xxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxx Xxxxx, Xxxx Xxxxx,
Xxxxxxx Xxxxx, Xxxx Xxxxxx, R. Xxxxxx House, Xxxxxxx Xxxxxxx, Xxxxx
Xxxxxxx, Xxxxxxxx Xxxxxxxx, Xxxxx Xxxxxx, Xxxx Xxxxx, Xxxx Xxxxxxx,
Xxxxxxx Xxxxxxxxx, Xxxxx Xxxxxx, Xxxx Xxxxxx, Xxxxxxx Xxxxxxxxx, Xxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxx, Xxxxx Xxxxxxxx, Xxxxx Xxxxxxxx, Xxxx
Xxxxxxxx Xxxxxx, Xxx XxXxxxxx, Xxxxx Xxxxxx, Xxxx Xxxxx, Xxxx Xxxxxxx,
Xxxxxxxxx ("Xxxxxx") Xxxxxxx, Xxxxx Xxxxxxxxx, Xxxxxxx Xxxxxxxxx, Xxxxx
Xxxxxx, Xxxxxxxxx Xxxx and Xxxxx XxXxxxxxxx.
15. Engagement Letter dated March 11, 1999 by and between the Company
and Xxxxxx Brothers.
16. Engagement Letter dated March 15, 1999 by and between the Company
and TD Securities (USA) Inc.
17. Engagement Letter dated March 15, 1999 by and between the Company
and Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation.
18. Engagement Letter dated July 12, 1999 by and between the Company
and Xxxxxx & Xxxxxxxxx LLC as amended.
19. Oral Agreement between the Company and Straight Marketing to
provide marketing and consulting services.
20. Multiparty Non-Disclosure Agreement, between Qualcomm Brasil, the
Company and Qualcomm, dated November 4, 1998.
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21. Joint Bidding Agreement, between the Company and Qualcomm Brasil,
dated November 9, 1998.
22. Memorandum of Understanding between the Company, Xxxx Canada,
Taquari, and Qualcomm Brasil, dated December 8, 1998.
23. Option Agreement between the Company, Xxxx Canada, Taquari, SLI,
BID S.A. and Qualcomm Brasil, dated January 15, 1999.
24. Multiparty Non-Disclosure Agreement, between Qualcomm Brasil, Xxxx
Canada, the Company, Taquari, SLI and BID S.A., dated January 20, 1999.
25. Memorandum of Understanding, between the Company, Xxxx Canada, SLI
and Qualcomm Brasil, dated March 15, 1999.
26. Letter of Agreement, between the Company, Xxxx Canada, SLI and
Qualcomm Brasil, dated May 4, 1999.
27. Second Letter of Agreement, between the Company, Xxxx Canada, SLI
and Qualcomm Brasil, dated May 26, 1999.
28. Purchase Agreement by and among Formus, Formus International, Inc.
and the Company dated as of August 20, 1999.
29. Subscription Agreement between Formus and the Company dated August
20,1999.
30. Consolidation Agreement by and among SLI, Sociedad Latinoamericana
S.A., Brasil Holdings and the Company dated as of August 20, 1999.
31. Subscription Agreement between SLI and the Company dated August 20,
1999.
32. Purchase Agreement between Taquari and the Company dated as of
August 20, 1999.
33. Subscription Agreement between Taquari and the Company dated August
20, 1999.
34. Amended and Restated Investors Agreement dated as of September 27,
1999 between the Company and its principal stockholders.
35. Purchase Agreement between the Company and PCN do Brasil S.A. dated
as of September 27, 1999.
36. Purchase Agreement between the Company and Inepar S.A. dated as of
September 27, 1999.
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37. Pledge Agreement dated September 27, 1999 between the Company and
PCN do Brasil S.A.
38. Escrow Agreement dated September 27, 1999 between the Company, PCN
do Brasil S.A. and Bank Boston S.A.
39. Letter Agreement dated August 23, 1999 between the Company and SLI
in respect of the bid for Region II in Brazil.
40. Joint Bidding Agreement dated August 25, 1999 between the Company,
Xxxx Canada and Qualcomm in respect of the bid for Region II in Brazil.
41. Consent and Agreement dated September 22, 1999 between the Company
and its affiliates, SLI and its affiliates, Qualcomm and its
affiliates, Taquari and its affiliates and Xxxx Canada and its
affiliates.
42. Equity Investment Agreement dated October 21, 1999 between the
Company and certain of its stockholders.
43. Affiliate Agreement made as of November 9, 1998 between Telecom
Management II LLC and the Company (Lease Agreement relating to the
Company's premises at 0000 Xxxxx Xxxxxxxx Xxxxx Circle).
44. Capital Contribution Agreement executed by the Company and Brasil
Holdings dated December 13, 1999 in favor of ABN Amro as agent for
certain lenders.
45. Additional Capital Contribution Agreement executed by the Company
and Brasil Holdings dated December 13, 1999 in favor of ABN Amro as
agent for certain lenders.
46. Two Support Obligations dated December 13, 1999, executed by the
Company in respect of the Capital Contribution Agreement and Additional
Capital Contribution Agreement referred to in items numbered 44 and 45
above.
47. Side Letter dated December 13, 1999 executed by the Company VeloCom
Brasil and Brasil Holdings in respect of the Additional Capital
Contribution Agreement referred to in item 45 above.
48. Commitment Letter dated as of August 10, 1999 from Nortel Networks
Corporation, Northern Telecom do Brasil Comercio e Servicos Ltda. and
Northern Telecom do Brasil Industria e Comercio Ltda. to Xxxx Canada
International (Brazil Telecom 1) Limited, SLI, Qualcomm Brasil,
Taquari, VeloCom Brasil, Vesper, Xxxx Canada, VeloCom, Qualcomm, Rio
Purus Participacoes Ltda., CFL Participacoes Ltda., Xxxxxx Xxxxxxxx and
Xxxxxxxxx Xxxxxxxx.
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00. Letter Agreement dated August 10, 1999 by and among Nortel Networks
Corporation, Northern Telecom do Brasil Comercio e Servicos Ltda. and
Northern Telecom do Brasil Industria e Comercio Ltda., Xxxx Canada
International (Brazil Telecom 1) Limited, SLI, Qualcomm Brasil,
Taquari, VeloCom Brasil, Vesper, Xxxx Canada, VeloCom, Qualcomm, Rio
Purus Participacoes Ltda., CFL Participacoes Ltda., Xxxxxx Xxxxxxxx and
Xxxxxxxxx Xxxxxxxx.
50. Technical Assistance Agreement between the Company and Formus
International dated September 27, 1999.
51. Management Rights Agreement dated October 28, 1999 between the
Company and Crescendo III.
52. Assignment and Assumption Agreement between Formus International
Inc. and the Company dated September 27, 1999 in connection with a
certain Uruguay LMDS development project.
53. Consulting Agreement dated October 22, 1999, by and between
Xxxxxxxxx Xxxxx and the Company.
54. Loan Agreement dated as of November 19, 1999 among the Company, as
borrower, and Telecom Partners II, L.P., Crescendo World Fund, L.L.C.,
Eagle Ventures WF, LLC, Crescendo III, L.P., Crescendo III, GbR,
Crescendo III Executive Fund, L.P., Centennial Fund V., L.P.,
Centennial Holdings I, LLC, SLI Wireless S.A., Formus Communications -
Latin America Holdings, LLC.
55. Purchase Agreement dated December 6, 1999 between the Company and
the investors listed therein.
56. Second Amended and Restated Investors Agreement between the Company
and the stockholders listed therein.
57. Memorandum of Understanding between the Company, Ejemil S.A.,
Odecar S.A., Xx. Xxxxx Xxxxxxx Xxxxxxx and El Pais S.A. dated November
29, 1999.
58. Letter of Intent between the Company, Xxxx Canada International,
BRHS S.A. and Xxxxxxx Xxxx Xxxxxxx xx Xxxxxx dated December 21, 1999.
59. Escrow Agreement between the Company, Xxxx Canada International,
BRHS S.A. and Xxxxxxx Xxxx Xxxxxxx xx Xxxxxx and State Street Bank and
Trust Company dated December 21, 1999.
60. Amended and Restated Shareholders Agreement (Vesper Holding) dated
as of December 23, 1999 between the Company, Vesper Holding, Brasil
Holding, Xxxx Canada International and Qualcomm, and their affiliates.
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61. Amended and Restated Shareholders Agreement (Vesper Sao Paulo
Holding) dated as of December 23, 1999 between the Company, Brasil
Holdings, Vesper Sao Paulo Holding, Xxxx Canada International and
Qualcomm, and their affiliates.
62. Shareholder Pledge Agreement in respect of the Nortel/Ericsson
Financing dated December 16, 0000 xxxxxxx Xxxx Xxxxxx International,
the Company, Qualcomm, BCI Brazil, Brasil Holdings, Qualcomm Brasil and
the Collateral Agent.
63. Sponsor Support Agreement (Lucent) dated December 27, 0000 xxxxxxx
Xxxxxx, Xxxx Xxxxxx International, Qualcomm, Brasil Holdings, the
Company and their affiliates.
64. Substitute Financing Letter dated December 27, 0000, xxxxxxx Xxxxxx
Xxx Xxxxx Xxxxxxx, Xxxxxx, Xxxx Xxxxxx International, Qualcomm, Brasil
Holdings, the Company and their affiliates.
65. Marketing Assistance Letter dated December 27, 0000 xxxxxxx Xxxxxx,
Xxxx Xxxxxx International, Qualcomm, Brasil Holdings, Vesper Sao Paulo
Holding, the Company and their Affiliates.
66. Memorandum of Understanding dated December 21, 1999 between the
Company and Xxxxxxxx Xxxxxxxxxxxx.
67. Letter of Intent between the Company and Diveo Inc. dated February
27, 2000.
68. Follow on Series B/B-1 Preferred Stock Purchase Agreement dated
January 7, 2000.
69. Third Amended and Restated Investors Agreement dated January 7,
2000.
70. Amendment No. 1 dated January 7, 2000 to Series B Preferred Stock
Purchase Agreement dated December 6, 1999.
71. Supplemental Series B Preferred Stock Purchase Agreement dated
January 8, 2000 between VeloCom Inc. and Intel Corporation.
72. Intel-VeloCom Marketing Activities Agreement dated February 4,
2000.
73. Warrant to Purchase 125,000 shares of VeloCom Common Stock issued
to Intel Corporation on February 4, 2000.
74. First Amendment to Third Amended and Restated Investors Agreement
dated February 4, 2000.
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75. Side Letter dated February 4, 2000 between the Company and Intel
Corporation.
76. Employment Agreements between the Company and Xxxxx Xxxxxxx,
Xxxxxxx Xxxxx, Xxxx Xxxxx, Xxxxx XxXxxxxxxx, Xxxxx Xxxxx, Xxxxxx House
and Xxxx Xxxxxx.
77. Engagement letter dated March 2, 2000, between CSMG, BCI, Qualcomm
and the Company.
78. Engagement letter dated February 28, 2000, between TD Securities
(USA) Inc. and the Company.
79. Purchase Agreement by and among Peru LLC, VeloCom LA, the Company,
Diveo Telecomunicaciones del Peru S.R.L., Diginet Colombia, Inc. and
Diveo, Inc.
VELOCOM BRASIL
1. Commitment Letter dated as of August 10, 1999 from Nortel Networks
Corporation, Northern Telecom do Brasil Comercio e Servicos Ltda. and
Northern Telecom do Brasil Industria e Comercio Ltda. to Xxxx Canada
International (Brazil Telecom 1) Limited, SLI, Qualcomm Brasil,
Taquari, VeloCom Brasil, Vesper, Xxxx Canada, VeloCom, Qualcomm, Rio
Purus Participacoes Ltda., CFL Participacoes Ltda., Xxxxxx Xxxxxxxx and
Xxxxxxxxx Xxxxxxxx.
2. Letter Agreement dated August 10, 1999 by and among Nortel Networks
Corporation, Northern Telecom do Brasil Comercio e Servicos Ltda. and
Northern Telecom do Brasil Industria e Comercio Ltda., Xxxx Canada
International (Brazil Telecom 1) Limited, SLI, Qualcomm Brasil,
Taquari, VeloCom Brasil, Vesper, Xxxx Canada, VeloCom, Qualcomm, Rio
Purus Participacoes Ltda., CFL Participacoes Ltda., Xxxxxx Xxxxxxxx and
Xxxxxxxxx Xxxxxxxx.
3. Option Agreement between Xxxx Canada and VeloCom Brasil, dated
February 4, 1999.
4. Agreement between VeloCom Brasil and Qualcomm Brasil, dated February
4, 1999, concerning Option Agreement.
BRASIL HOLDINGS
1. Option Agreement dated as of July 30, 1999 by and between Xxxx
Canada International (Vesper S.P.) Limited and Brasil Holdings.
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2. Capital Contribution Agreement to be executed by Brasil Holdings
dated December 13, 1999 in favor of ABN Amro as agent for certain
lenders.
3. Additional Capital Contribution Agreement to be executed by Brasil
Holdings dated December 13, 1999 in favor of ABN Amro as agent for
certain lenders.
4. Side Letter dated December 13, 1999 to be executed by the Company
and Brasil Holding in respect of the Additional Capital Contribution
referred to above.
5. Amended and Restated Shareholders Agreement (Vesper Holding) dated
as of December 23, 1999 between the Company, Vesper Holding, Brasil
Holdings, Xxxx Canada International and Qualcomm, and their affiliates.
6. Amended and Restated Shareholders Agreement (Vesper Sao Paulo
Holding) dated as of December 23, 1999 between the Company, Brasil
Holdings, Vesper Sao Paulo Holding, Xxxx Canada International, Qualcomm
and their affiliates.
7. Shareholder Pledge Agreement in respect of the Nortel/Ericsson
Financing dated December 16, 0000 xxxxxxx Xxxx Xxxxxx International,
the Company, Qualcomm, BCI Brasil, Brasil Holdings, Qualcomm Brasil and
the Collateral Agent.
8. Substitute Financing Side Letter, dated December 27, 1999, among
Qualcomm, the Company, BCI, the Lenders and the Agents.
9. Shareholders Agreement among Brasil Holdings, Qualcomm, Xxxx Canada
International Investments Limited and Interativa, dated as of March 22,
2000.
VESPER HOLDING
1. Common Terms Agreement to be executed between Vesper, Vesper
Holding, ABN Amro and the lenders thereto dated December 13, 1999.
2. Amended and Restated Shareholders Agreement dated as of December 23,
1999 between the Company, Vesper Holding, Xxxx Canada, Brasil Holding,
Qualcomm, and their affiliates.
3. Capital Contribution Agreement dated December 13, 1999 between
Vesper Holding and the Collateral Agent (Nortel/Ericsson financing).
4. Stock Pledge Agreement in respect of stock of Vesper dated December
16, 1999 between Vesper Holding, and the Collateral Agent and related
powers of attorney.
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5. Guaranty executed by Vesper Holding in respect of Vesper dated
December 16, 1999.
6. Shareholder Pledge Agreement and related filings dated December 16,
1999 executed by Vesper Holding.
VESPER SAO PAULO HOLDING
1. Amended and Restated Shareholders Agreement between Qualcomm Brasil,
Xxxx Canada, Brasil Holdings, the Company, Vesper Sao Paulo Holding and
their affiliates dated as of December 23, 1999.
2. Sponsor Support Agreement dated December 27, 1999 in respect of
Lucent financing.
3. Lucent Credit Agreement dated December 27, 1999 between Vesper Sao
Paulo Holding, Vesper Sao Paulo, Vesper Sao Paulo Cayman and Lucent.
4. Common Agreement dated December 27, 1999 between Vesper Sao Paulo
Holding, Vesper Sao Paulo, Vesper Sao Paulo Cayman, Lucent and the
Collateral Agent.
5. Pledge and Related Security Agreements in respect of the Lucent
financing referred to above.
VESPER
1. Termo de Autorizacao do Servico Telefonico Fixo Comutado, Modalidade
Local, Que Entre Si Celebram A Agencia Nacional de Telecomunicacoes -
ANATEL e Canbra Telefonica S.A.
2. Termo de Autorizacao do Servico Telefonico Fixo Comutado, Modalidade
Longa Distancia Nacional de Ambito Intra-Regional, Que Entre Si
Celebram A Agencia Nacional de Telecomunicacoes - ANATEL e Canbra
Telefonica S.A.
3. Technical Services Agreement between Xxxx Canada and Vesper dated
May 27, 1999.
4. Secondment Agreement dated as of May 27, 1999 between Vesper and
Xxxx Canada.
5. Technical Services Agreement dated as of May 27, 1999 between Vesper
and Xxxx Canada.
6. Contrato de Interconexao de Redes de Telecomunicacoes Entre a
Embratel (Empresa Brasileira de Telecomunicacoes S.A.) x x Xxxxxx.
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7. Contrato de Interconexao de Redes de Telecomunicacoes Entre a Xxxxxx
x x Concessionarios do STFC - Regiao 1 (Tele Norte Leste).
8. Program Agreement established between the State of Rio de Janeiro
and Vesper dated July 13, 1999.
9. Equipment Supply Agreement between Ericsson Inc. and Vesper dated
August 4, 1999.
10. Letter Agreement dated August 10, 1999 by and among Nortel Networks
Corporation, Northern Telecom do Brasil Comercio e Servicos Ltda. and
Northern Telecom do Brasil Industria e Comercio Ltda., Xxxx Canada
International (Brazil Telecom 1) Limited, SLI, Qualcomm Brasil,
Taquari, VeloCom Brasil, Vesper, Xxxx Canada International Inc.,
Velocom, Qualcomm, Rio Purus Participacoes Ltda., CFL Participacoes
Ltda., Xxxxxx Xxxxxxxx and Xxxxxxxxx Xxxxxxxx.
11. Contrato de Locacao de Area e Compartilhamento de Infra-Estructura
entre a Empresa Brasileira de Telecomunicacoes S.A. -EMBRATEL x x
Xxxxxx
12. Contrato de Locacao de Sistema de Telecomunicacoes entre a Light
Telecom Ltda. x x Xxxxxx
13. Instrument for the Construction of Call Center between Vesper and
Engineering S.A. Servicios Tecnicos dated August 27, 1999.
14. Interconnection Agreement between Vesper and Intelig
Telecomunicaciones.
15. Senior Secured Note Purchase Agreements each dated December 13,
1999 between Vesper and Nortel Networks Corporation, Qualcomm/Ericsson,
Xxxxxx Corporation and ABN Amro, as agent and related loan
documentation.
16. Common Terms Agreement dated December 13, 1999 between Vesper,
Vesper Holding, ABN Amro and the lenders thereto dated December 1999.
17. Technical Assistance Agreement between VeloCom and Vesper to be
effective as of November 30, 1999.
18. Equipment Supply and Services Agreement dated July 9, 1999 between
Vesper, Nortel Networks Corporation, Northern Telecom do Brasil
Industria e Comerico Ltda. and Northern Telecom do Brasil Comerico e
Servicios Ltda.
19. License for Packet Switched Network Services issued by Anatel on
September 23, 1999.
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20. License for Circuit Switched Network Services issued by Anatel on
September 23, 1999.
21. License for Dedicated Line Services issued by Anatel on September
23, 1999.
22. License for Special Services of Audio and Video Signal issued by
Anatel on September 23, 1999.
23. License for Retransmission issued by Anatel on September 23, 1999.
24. CPE Equipment Supply Letter of Intent with LG Information
Communications.
25. Fiber Lease Contract with NQT.
26. Capital Contribution Agreement dated December 13, 1999 between
Vesper Holdings, Vesper, Xxxx Canada, Qualcomm, Brasil Holdings, and
the Collateral Agent.
27. Global Notes executed by Vesper in favor of Nortel,
Qualcomm/Ericsson and Xxxxxx Corporation dated December 13, 1999.
28. Exchange Debt Agreement between Vesper, Nortel, Qualcomm, Ericsson
and Xxxxxx Corporation dated December 16, 1999.
29. Equipment Pledge Agreement dated December 16, 1999 executed by
Vesper in favor of the Collateral Agent and various related powers of
attorney.
30. Receivables Pledge Agreement dated December 16, 1999 between Vesper
and the Collateral Agent and related powers of attorney.
31. Eight Deposit Account Agreements dated December 16, 1999 executed
by Vesper in favor of the Collateral Agent.
32. Contracts Pledge Agreement dated December 16, 1999 executed by
Vesper in favor of the Collateral Agent and related power of attorney.
33. Cash Collateral Pledge Agreement dated December 16, 1999 between
Vesper and the Collateral Agent.
34. Proceeds Account Pledge Agreement dated December 16, 1999 between
Vesper and the Collateral Agent.
35. Mortgages executed by Vesper in connection with Nortel/Qualcomm/
Ericsson/Xxxxxx Corporation financing.
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36. Fee letters executed by Vesper in connection with financings dated
December 13, 1999.
37. Paying Agency Agreement dated December 13, 1999 between Vesper and
Chase Manhattan Bank.
38. Equipment Supply Agreement dated December 6, 1999 between Vesper
and Motorola do Brasil.
39. Financing Commitment letter between Vesper and Motorola do Brasil.
40. Letter of Intent for Purchase and Sale of LST 2200F/2300F Network
Interface Units with LG Information and Communications Ltd.
41. Credit Agreement and ancillary documents with BankBoston North
America.
VESPER S.P.
1. Termo de Autorizacao do Servico Telefonico Fixo Comutado, Modalidade
Local, Que Entre Si Celebram A Agencia Nacional de Telecomunicacoes -
ANATEL e Vesper S.P.
2. Termo de Autorizacao do Servico Telefonico Fixo Comutado, Modalidade
Longa Distancia Nacional de Ambito Intra-Regional, Que Entre Si
Celebram A Agencia Nacional de Telecomunicacoes - ANATEL e Vesper S.P.
3. Know-how Transfer and Technical Services Agreement between Xxxx
Canada and Vesper S.P. dated as of July 30, 1999.
4. Letter of Understanding dated as of July 30, 1999 between Vesper
S.P. and Xxxx Canada.
5. Secondment Agreement dated as of July 30, 0000 xxxxxxx Xxxx Xxxxxx
and Vesper S.P.
6. Technical Services Agreement dated as of July 30, 0000 xxxxxxx Xxxx
Xxxxxx and Vesper S.P.
7. Equipment Supply Agreement dated September 27, 1999 between Vesper
S.P. and Lucent.
8. Interconnection Agreement between Vesper S.P. and Intelig (Bonari
Holding) dated August 15, 1999.
9. Interconnection Agreement between Vesper S.P. and Embratel dated
August 10, 1999.
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66
10. Agreement between Vesper S.P. and Engeredes dated September 1999
regarding use of fiber.
11. Agreement between Vesper SP and Metroredes Telecomunicacoes Ltda.
dated September 1999 regarding use of fiber.
12. Agreement between Vesper SP and Pegasus Telecom S/A dated September
1999 regarding use of fiber.
13. License for Packet Switched Network Services issued by Anatel on
September 23, 1999.
14. License for Circuit Switched Network Services issued by Anatel on
September 23, 1999.
15. License for Dedicated Line Services issued by Anatel on September
23, 1999.
16. License for Special Services of Audio and Video Signal issued by
Anatel on September 23, 1999.
17. License for Retransmission issued by Anatel on September 23, 1999.
18. Interconnection Agreement between Vesper S.P. and Telesp dated
August 20, 1999.
19. Fiber Lease Agreement between Vesper S.P. and Eletropaulo dated
October 1999.
20. Contrato de Arrendamento Mercantil com a IBM Brasil Leasing
Arrendamento Mercantil S.A. para o arrendamento mercantil de
equipamentos de informatica e telecomunicacoes, dentre outros com IBM
Brasil - Industria, Maquinas e Servicos Ltda. e Northern Telecom do
Brasil Comercio e Servicos Ltda. ("leasing agreement with IBL for IT
and Telecom/call center equipment, includes IBM and other IT vendors as
well as Nortel").
21. Credit Agreement dated December 27, 1999 between Vesper S.P.,
Vesper Sao Paulo Cayman, the lenders thereto and the administrative
agent.
22. Common Agreement dated December 27, 1999 between Vesper S.P.,
Vesper Sao Paulo Holding, Lucent and the Collateral Agent.
23. Pledge and Security Agreements and other collateral documents
executed in connection with the Lucent financing referred to above.
24. Equipment Supply Agreement dated December 1999 between Vesper S.P.
and Motorola do Brasil.
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67
25. Interconnection Agreement, dated August 20, 1999, between Compania
Telefonica xx Xxxxx do Xxxxx and Xxxxxx X.X.
26. Know-How Transfer and Technical Services Agreement, dated December
27, 1999, between BCI and Vesper S.P.
27. Credit Agreement dated as of December 27, 1999, among Vesper Sao
Paulo Holdings, Vesper S.P., Vesper Cayman Sao Paulo, the Lenders
thereunder and Societe Generale, New York Branch, as Administrative
Agent.
28. Paying Agency Agreement dated as of December 27, 1999, among the
Japanese Paying Agent, Vesper S.P. and Vesper Cayman Sao Paulo.
29. Share Pledge Agreement, dated December 27, 1999, by and among
Vesper Holdings, Qualcomm do Brasil S.A., Vesper Cayman Sao Paulo, and
the Lenders.
30. Secondment Agreement, dated December 27, 1999 between BCI and
Vesper S.P.
31. Substitute Financing Side Letter, dated December 27, 1999, among
Qualcomm, the Company, BCI, the Lenders and the Agents.
32. Technical Services Agreement dated July 30, 1999, between BCI and
Vesper, as amended by Amendment No. 1, dated December 23, 1999, between
the same parties.
33. Loan Guarantee, dated as of December 27, 1999, made by Vesper S.P.
in favor of the Collateral Agent.
34. Fee letter dated December 27, 1999, between Vesper S.P. and Lucent.
35. Letter of Intent for Purchase and Sale of LST 2200F/2300F Network
Interface Units with LG Information and Communications Ltd.
36. Credit Agreement and ancillary documents with BankBoston North
America.
TMC
1. Limited Liability Company Agreement: dated as of Xxxxxxxx 00, 0000,
xxxxx XXX, XXX, Xxxxxxxxx LLC, and TMC.
2. Agreement for Lease of Telecommunications Network dated as of
January 11, 1999, between Smartel and TMC.
3. Agreement for Lease of Telecommunications Network dated as of
January 11, 1999 between Formus Argentina and TMC.
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68
4. Agreement for Lease of Telecommunications Network dated as of
January 11, 1999 between Telelatina and TMC.
5. Management Agreement dated as of February 11, 1999 between Smartel
and TMC.
6. Management Agreement dated as of February 11, 1999 between
Telelatina and TMC.
7. Management Agreement dated as of February 11, 1999 between Formus
Argentina and TMC.
8. Sales And Assignment Agreement dated as of February 11, 1999 between
Telelatina and TMC.
9. Trial Agreement, effective as of August 10, 1998 among Lucent
Technologies World Services Inc., Lucent Technologies S.A Argentina and
Telelatina. Assigned in favor of TMC on March 11, 1999.
10. Purchase and Sale Agreement (Products, Software And Services),
among Lucent Technologies World Services Inc., Lucent Technologies S.A
Argentina and Telelatina executed on February 20, 1999, February 23,
1999 and February 26, 1999, respectively. Assigned in favor of TMC on
March 11, 1999.
11. Lease Agreement with Option to Purchase between Lucent Technologies
Sociedad Anonima and TMC, dated as of June 25, 1999.
12. Lease Agreement with Option to Purchase between Lucent Technologies
Sociedad Anonima and TMC, dated as of June 25, 1999.
13. Purchase Order between Lucent Technologies World Services Inc.,
Lucent Technologies S.A Argentina and TMC dated as of July 8, 1999.
14. Services Contract, dated February 25, 1999 between IMPSAT S.A and
TMC.
15. Services Contract, dated April 21,1999 between Xxxxxx & Co.
Personas y Organizaciones S.R.L and TMC.
16. Lease Contract, dated March 17, 1999 between Xxxxx Xxxxxxx Taquini
(Lessor) and TMC (Lessee). Property Location: Xxxxxxxx 3158, Apartment
9B.
17. Lease Contract, dated March 26, 1999 between Forobra S.A (Lessor)
and TMC (Lessee). Property Location: Av. San Xxxxxx 638/40.
18. Gratuitous Assignment Of Lease Contract, dated March 10, 1999 among
Telelatina (Assignor), TMC (Assignee) and Financiera Buenos Aires S.A
15
69
(Lessor). Property Location: Maipu 255, 20th Floor, three (3) fixed
parking spaces and space on the terrace for installation of
telecommunication equipment (as gratuitous commodatum).
19. Lease Contract, dated July 5, 1999 between Consorcio de
Propietarios de La Calle Ugarteche 2871/73/75/77 (Lessor) and TMC
(Lessee). Property Location: Ugarteche 2873; space on the terrace of
the building for the installation of telecommunication equipment.
20. Lease Contract, dated June 9, 1999 between Consorcio De
Propietarios Avenida De Los Incas numero 3310 esquina calle CONDE
numeros 1586 y 1594 Capital Federal (Lessor) and TMC (Lessee). Property
Location: Xx. xx xxx Xxxxx 0000; space on the terrace of the building
for the installation of telecommunication equipment.
21. Lease Contract, dated June 18, 1999 between COCABA S.R.L (Lessor)
and TMC (Lessee). Property Location: Xxxxx 3433; space on the terrace
of the building for the installation of telecommunication equipment.
22. Lease Contract, dated June 18, 1999 between Consorcio de
Xxxxxxxxxxxx xx Xx Xxxxx XXXXX 0000 (Xxxxxx) and TMC (Lessee). Property
Location: Xxxxx 2419; space on the terrace of the building for the
installation of telecommunication equipment.
23. Lease Contract, dated June 25, 1999 between Consorcio de
Xxxxxxxxxxxx Xxx Xxxxxxxx xx Xx Xxxxx Xxxxx0000/00 (Lessor) and TMC
(Lessee). Property Location: Xxxxx 0000/00; space on the terrace of the
building for the installation of telecommunication equipment.
24. Lease Contract, dated June 30, 1999 between Consorcio de
Xxxxxxxxxxxx xx Xx Xxxxx Xxxxxxxx 0000 (Xxxxxx) and TMC (Lessee).
Property Location: Honduras 5597; space on the terrace of the building
for the installation of telecommunication equipment.
25. Lease Contract, dated June 30, 1999 between Consorcio de
Xxxxxxxxxxx xx Xx Xxxxx Xxxxxxx 0000 (Xxxxxx) and TMC (Lessee).
Property Location: Xxxxxxx 1670; space on the terrace of the building
for the installation of telecommunication equipment.
26. Lease Contract, dated June 18, 1999 between Consorcio de
Propietarios Edificio Galeria Jardin (Lessor) and TMC (Lessee).
Property Location: Florida 537/71; space on the terrace of the building
for the installation of telecommunication equipment. Electric Supply
Contract, dated May 11, 1999 between Edesur S.A and TMC.
27. Electric Supply Contract dated May 11, 1999, between Edesur S.A.
and TMC.
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70
28. Lease Contract, dated July 15, 1999 between Consorcio de
Propietarios Del Edificio Ubicado En La Calle Xxxxxxxx General Xxxx X.
Xxxxx 1457 (Lessor) and TMC, Sucursal Argentina (Lessee). Property
Location: Xxxxxxxx General Xxxx X. Xxxxx 1457, Buenos Aires, space on
the terrace of the building for the installation of telecommunication
equipment.
29. Lease Contract, dated July 8, 1999 between Xxxxxxx Construcciones
S.A. (Lessor) and TMC, Sucursal Argentina (Lessee); Property Location:
Xxxxxxx 0000, Xxxxxx Xxxxx; space on the terrace of the building for
the installation of telecommunication equipment.
30. Service Order, subscribed between Metrored and TMC, dated as of
August 20, 1999.
31. Purchase Order, subscribed by TMC to Idabour Construcciones, dated
as of June 15, 1999.
32. Subscription and Redemption of Mutual Funds, dated July 16, 1999
between Citibank N.A. and TMC.
33. Maintenance Service Contract, dated as of July 1,1999 between TMC
and Lucent Technologies S.A. Argentina.
34. Lease Contract, dated July 23, 1999 between Consorcio de
propietarios Xxxxx Xxxxxx 3005 (Lessor) and TMC, Sucursal Argentina
(Lessee); Property Location: Xxxxx Xxxxxx 0000, Xxxxxx Xxxxx; space on
the terrace of the building for the installation of telecommunication
equipment.
35. Lease Contract, dated July 25, 1999 between Consorcio de
propietarios Olleros 2344 (Lessor) and TMC, Sucursal Argentina
(Lessee); Property Location: Xxxxxxx 0000, Xxxxxx Xxxxx; space on the
terrace of the building for the installation of telecommunication
equipment.
36. Lease Contract, dated August 20, 1999 between Consorcio de
Propietarios xx Xxxxxx 785 and TMC. Property Location: Xxxxxx 785;
space on the terrace of the building for the installation of
telecommunications equipment.
37. Lease Contract, dated September 13, 1999 between Asoc. Civil y
Mutual Circular Militar and TMC. Property Location: Santa Fe 760, space
on the terrace of the building for the installation of
telecommunications equipment.
38. Lease Contract, dated October 8, 1999 between Consorcio de
Propietarios de Av. Gral. Las Xxxxx 2263 and TMC. Property location:
Xxxxx 2263; space on the terrace of the building for the installation
of telecommunications equipment.
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71
39. Lease Contract, dated September 10, 1999 between Prefectura Naval
Argentina and TMC. Property Location: Edificio Guardacostas; space on
the terrace of the building for the installation of telecommunications
equipment.
40. Lease Contract, dated September 6, 1999 between Consorcio de
Propietarios de Maure 3149/51 and TMC. Property Location: Maure
3149/51; space on the terrace of the building for the installation of
telecommunications equipment.
41. Services Contract, dated March 23, 1999 between El Sitio and TMC.
42. Letter of Intent dated July 28, 1999, between TMC and Transistemas
S.A.
43. Purchase Order dated July 8, 1999 between TMC and Lucent
Technologies S.A. Argentina and Lucent Technologies World Services Inc.
in respect of $10,739,987 of equipment.
VELOCOM ARGENTINA
TELELATINA S.A.
1. Memorandum Of Understanding "Memorandum de Entendimiento" dated
July, 1998 between Telelatina and Datacoop S.A
2. Management Agreement, as of February 11, 1999 between Telelatina and
TMC.
3. Agreement for Lease of Telecommunications Network, as of January 11,
1999 between Telelatina and TMC.
4. Lease Contract, dated June 24, 1998 between Consorcio de
Propietarios del Edificio Ubicado en La Calle Dorrego 2699 (Lessor) and
TMC (Lessee). Property Location: Dorrego 2699.
5. Infrastructure Sharing Agreement, as of February 11, 1999 among
Telelatina, Smartel and Formus Argentina.
6. Agreement for the Rendering of Services, as of May 31, 1999 between
Telelatina and Xxxx X.X.
7. Sales and Assignment Agreement, as of February 11, 1999 between
Telelatina and TMC.
SMARTEL S.A.
1. Infrastructure Sharing Agreement, as of February 11, 1999 among
Telelatina, Smartel and Formus Argentina.
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72
2. Agreement For Lease of Telecommunications Network, as of January 11,
1999, between Smartel and TMC.
3. Management Agreement, as of February 11, 1999 between Smartel and
TMC.
FORMUS S.A.
1. Management Agreement dated as of February 11, 1999 by and among
Formus Argentina and TMC.
2. Agreement for Lease of Telecommunications Network dated as of
January 11, 1999 by and among Formus Argentina and TMC.
3. Infrastructure Sharing Agreement dated as of February 11, 1999 by
and among Telelatina, Formus Argentina and Smartel.
FORMUS CHILE
Foreign Investment Contract with Chile.
VELOCOM COLOMBIA
1. Purchase order to Wireless Inc. for $125,000 to purchase six 38 GHz
links.
2. Purchase Order Agreement between VeloCom Colombia and Tess dated
October 1999.
ARGENTINA LLC
Limited Liability Company Agreement dated as of Xxxxxxxx 00, 0000,
xxxxx XXX, XXX, Xxxxxxxxx LLC, and TMC.
COLOMBIA LLC
Consulting Agreement dated January 27, 1998 by Xxxxxxxx & Associates,
Inc. and Colombia LLC.
VESPER CAYMAN
1. Purchase Fee Letters dated December 13, 1999 between Vesper Cayman
and ABN Amro.
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73
VESPER SAO PAULO CAYMAN LTDA.
1. Common Terms Agreement, Credit Agreement and various pledge and
security documents executed in connection with the Lucent vendor
financing.
EJEMIL S.A. AND ODECAR S.A.
1. Memorandum of Understanding between the Company, Ejemil S.A., Odecar
S.A., Xx. Xxxxx Xxxxxxx Xxxxxxx and El Pais S.A. dated November 29,
1999.
2. Purchase Order between Lucent Technologies World Services Inc. and
Odecar S.A. dated March 16, 2000.
3. Purchase Order between Lucent Technologies World Services Inc. and
Odecar S.A. dated February 23, 2000.
VELOCOM PERU
1. Purchase Order between Lucent Technologies World Services Inc. and
VeloCom Peru S.A. dated February 23, 2000.
2. Purchase Order between Lucent Technologies World Services Inc. and
VeloCom Peru S.A. dated March 16, 2000.
BRHS/INTERATIVA
1. Purchase Agreement by and among BR Homeshopping Internet S.A., the
Shareholders of BR Homeshopping Internet S.A., BV Interativa Ltda. and
Trapezio S.A. dated March 3, 2000.
2. Internet Services Agreement with Banco Rural S.A.
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74
SCHEDULE 3.12
SUBSIDIARIES
[GRAPH]
1
75
SCHEDULE 3.13
CAPITALIZATION OF SUBSIDIARIES
VELOCOM BRASIL
VeloCom Brasil has an authorized and issued capital of R$23,377,392.00
divided into 23,377,392 quotas of par value R$1.00 each. In connection
with the restructuring of this entity, its capital is being reduced.
BRASIL HOLDINGS
Brasil Holdings has an authorized capital of US$50,000 divided into
50,000 shares of par value $1.00 each, of which 2 shares are issued and
outstanding in the name of VeloCom.
VESPER HOLDING
Vesper Holding has an authorized and issued capital of R$295,372,520
divided into 616,000 ordinary shares with no par value and 616,000
preferred shares with no par value.
VESPER SAO PAULO HOLDING
Vesper Sao Paulo Holding has an authorized and issued capital of
R$216,000 divided into 216,000 ordinary shares with no par value and
216,000 preferred shares with no par value.
XXXXXX
Xxxxxx has an authorized and issued capital of R$255,072,000 divided
into 565,761 ordinary shares with no par value.
VESPER CAYMAN
Vesper Cayman has an authorized and issued capital of US$4,500 divided
into 1 share.
VESPER X.X.
Xxxxxx S.P. has an authorized and issued capital of R$69,913,000
divided into 70,813 ordinary shares with no par value.
VESPER SAO PAULO CAYMAN LTD.
Vesper Sao Paulo Cayman has an authorized and issued capital of US$1.00
divided into 1 share.
1
76
ENCUMBRANCES
The shares of Vesper, Vesper Holding, Vesper Sao Paulo Holding and
Vesper S.P. are subject to the terms of the respective shareholders agreements,
constituent documents and Licenses. The shares of Vesper and Vesper S.P. have
been pledged to certain lenders pursuant to the terms of the vendor financing
arrangements described in the Schedules to this Agreement.
TMC
1. Capital contributions of US$18,966,571 have been made to TMC. The
number of shares authorized and issued is 1,000.
VELOCOM ARGENTINA SRL
VeloCom Argentina SRL has an authorized and issued capital of A$3,000
divided into 3,000 quotas of par value A$1.00 each.
VELOCOM COMUNICACIONES ARGENTINA SRL
VeloCom Comunicaciones Argentina SRL has an authorized and issued
capital of A$2,000 divided into 200 quotas of par value A$10.00 each.
VELOCOM ARGENTINA
VeloCom Argentina has an authorized and issued capital of A$1,032,000
divided into 1,032,000 ordinary shares with a par value of A$1.00 per
share.
EJEMIL S.A.
Ejemil S.A. has nominal capital.
ODECAR S.A.
Odecar S.A. has nominal capital.
PCN
PCN has an authorized and issued capital of US$100,000, divided into
100,000 shares with a par value of US$1.00 per share. There is also an
irrevocable capital contribution of US$4,767,238.86 recorded on the
books of this company.
VELOCOM CHILE
VeloCom Chile has an authorized and issued capital of CH$910,455
divided into 910,455 quotas.
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77
FORMUS BOLIVIA
Formus Bolivia has an authorized and issued capital of Bs$10,000,000
divided into 200 shares or Bs$20,000,000 with a par value of
Bs$100,000.
FORMUS CHILE
Formus Chile has an authorized and issued capital of CH$455,000,455
divided into unlimited equity interest with no par value.
VELOCOM COLOMBIA
VeloCom Colombia has an authorized and issued capital of C$800,522,200
divided into 8,005,222 shares with a par value of C$100.
INTERLOOP BVI
Interloop BVI has an authorized and issued capital of US$ 3,400,000
divided into 3,400,000 shares with a par value of $1.00 per share.
INTERLOOP COLOMBIA
Interloop Colombia has an authorized and issued capital of CP$
2,397,950,000 divided into 2,397,950 shares with a par value of CP$1.00
per share.
VELOCOM PERU
VeloCom Peru has an authorized and issued capital of NS$2,700 divided
into 2,700 unlimited equity interest with no par value.
VELOCOM VENEZUELA
VeloCom Venezuela has an authorized and issued capital of B$4,000,000
divided into 2,000 shares with a par value of B$10,000.
ARGENTINA LLC
Argentina LLC has one membership interest outstanding which was issued
for US$100.
BOLIVIA LLC
Bolivia LLC has one membership interest outstanding which was issued
for US$100.
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78
CHILE LLC
Chile LLC has one membership interest outstanding which was issued for
US$100.
COLOMBIA LLC
Colombia LLC has one membership interest outstanding which was issued
for US$100.
XXXXXX XX
Xxxxxx LA has one membership interest outstanding which was issued for
US$100.
PERU LLC
Peru LLC has one membership interest outstanding which was issued for
US$100.
VENEZUELA LLC
Venezuela LLC has one membership interest outstanding which was issued
for US$100.
INTERATIVA
Interativa has an authorized and issued capital of US$9,139,425 divided
into 9,139,425 shares with a par value of $1.00 each, of which
9,139,425 shares are issued and outstanding, 4,112,741 of which are
held by VeloCom Cayman Brasil Holdings, 4,112,741 of which are held by
Xxxx Canada International Investments Limited and 913,943 of which are
held by Qualcomm.
BRHS
BRHS has an authorized and issued capital of R$1,232,855.22 divided
into 547,000 ordinary shares with no par value.
BV LTDA
BV Ltda has an authorized and issued capital of R$14,300,000 divided
into 14,300,000 quotas of par value R$1.00 per share.
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SCHEDULE 3.14(a)
SHARE OWNERSHIP OF COMPANY
VeloCom Capital Structure -
03/24/00
Total Total
Total Series A Series A Series B Series B
Name Common Common Preferred Preferred Preferred Preferred
---- ------ ------ --------- --------- --------- ---------
Telecom Partners II, L.P. 200,000 855,556
1,300,000 2,811,111
1,939,108 833,333
Telecom Partners III, L.P. 3,333,333
1,500,000 5,605,775 4,166,666
Centennial Fund V, L.P. 932,600 652,820
2,144,980
1,388,831 250,000
Centennial Fund VI, L.P. 1,244,319
Centennial Entrepreneurs Fund 28,940 20,260
V, L.P.
66,560
43,098
Centennial Entrepreneurs Fund 32,745
VI, L.P.
Centennial Holdings I, L.L.C. 38,460 26,920 36,506
88,460
57,275
Centennial Strategic Partners 65,490
VI, L.P.
1,000,000 4,489,204 1,629,060
VeloCom Capital Structure -
03/24/00
Fully
Diluted %
Name Options Warrants Ownership Ownership
---- -------- -------- --------- ---------
Telecom Partners II, L.P.
Telecom Partners III, L.P.
11,272,441 16.0000%
Centennial Fund V, L.P.
Centennial Fund VI, L.P.
Centennial Entrepreneurs Fund
V, L.P.
Centennial Entrepreneurs Fund
VI, L.P.
Centennial Holdings I, L.L.C.
Centennial Strategic Partners
VI, L.P.
7,118,264 10.1036%
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VeloCom Capital Structure -
03/24/00
Total Total
Total Series A Series A Series B Series B
Name Common Common Preferred Preferred Preferred Preferred
---- ------ ------ --------- --------- --------- ---------
Crescendo World Fund, L.L.C. 477,150 742,234
Crescendo III, L.P. 457,649 159,050
2,555,555 1,190,115
959,128
Eagle Ventures WF, L.L.C. 22,850 35,544
21,916 7,617
Crescendo III 24,539
Crescendo III Executive Fund, 35,347
L.P.
500,000 4,772,026 1,416,668
SLI Wireless S.A. 4,330,709 7,840,000 2,416,667
4,330,709 7,840,000 2,416,667
Formus Communications - Latin 1,574,803 7,866,333 933,333
America Holdings, LLC
1,574,803 7,866,333 933,333
Xxxxx Capital, L.P. 41,667
41,667
Xxxx Xxxxx Capital, L.P. 25,850
Xxxx Xxxxx Capital Ventures, 21,900
L.P.
Xxxx Xxxxx Capital International 16,900
Xxxx Xxxxx Capital, Inc. 2,050
66,700
Mellon Ventures II, L.P. 1,666,667
1,666,667
Taquari Participacoes S.A. 1,035,064
Black Coral Enterprises Inc. 638,164
1,673,228 -- --
C. Xxxxx Xxxxx 5,000 1,862
14,805
19,805 1,862 --
VeloCom Capital Structure -
03/24/00
Fully
Diluted %
Name Options Warrants Ownership Ownership
---- ------- -------- --------- ---------
Crescendo World Fund, L.L.C.
Crescendo III, L.P.
Eagle Ventures WF, L.L.C.
Crescendo III
Crescendo III Executive Fund,
L.P.
6,688,694 9.4939%
SLI Wireless S.A.
14,587,376 20.7052%
Formus Communications - Latin
America Holdings, LLC
10,374,469 14.7254%
Xxxxx Capital, L.P.
41,667 0.0591%
Xxxx Xxxxx Capital, L.P.
Xxxx Xxxxx Capital Ventures,
L.P.
Xxxx Xxxxx Capital International
Xxxx Xxxxx Capital, Inc.
66,700 0.0947%
Mellon Ventures II, L.P.
1,666,667 2.3657%
Taquari Participacoes S.A.
Black Coral Enterprises Inc.
1,673,228 2.3750%
C. Xxxxx Xxxxx
21,667 0.0308%
2
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VeloCom Capital Structure -
03/24/00
Total Total
Total Series A Series A Series B Series B
Name Common Common Preferred Preferred Preferred Preferred
---- ------ ------- --------- --------- --------- ----------
Xxxx Xxxxx 1,666
1,666 -- --
Xxxxxxx XxXxxxxx 1,667
1,667 -- --
North River Ventures, Inc. 5,000
Pension Plan
5,000 -- --
Xxxxxxx Xxxxxxxxxx 24,000
24,000 -- --
Xxxxxxxx Xxxx 1,000
1,000 -- --
BankAmerica Investment 2,916,667
Corporation*
-- -- 2,916,667
Xxxxxxxx Xxxxxxxxxxxx 1,250,000
-- -- 1,250,000
Chestnut Hill VeloCom, LLC 1,725,000
-- -- 1,725,000
Dolphin Communications Fund, LP 293,140
Dolphin Communications Parallel 123,527
Fund
-- -- 416,667
First Union Merchant Banking 1,595,489
1999
-- -- 1,595,489
Toronto Dominion Investments, 583,333
Inc.
TD Securities (USA), Inc. 25,000
-- -- 608,333
VeloCom Capital Structure -
03/24/00
Fully
Diluted %
Name Options Warrants Ownership Ownership
---- ------- -------- ---------- ---------
Xxxx Xxxxx
1,666 0.0024%
Xxxxxxx XxXxxxxx
1,667 0.0024%
North River Ventures, Inc.
Pension Plan
5,000 0.0071%
Xxxxxxx Xxxxxxxxxx
24,000 0.0341%
Xxxxxxxx Xxxx
1,000 0.0014%
BankAmerica Investment
Corporation*
2,916,667 4.1399%
Xxxxxxxx Xxxxxxxxxxxx
1,250,000 1.7742%
Chestnut Hill VeloCom, LLC
1,725,000 2.4485%
Dolphin Communications Fund, LP
Dolphin Communications Parallel
Fund
416,667 0.5914%
First Union Merchant Banking
1999
1,595,489 2.2646%
Toronto Dominion Investments,
Inc.
TD Securities (USA), Inc.
608,333 0.8635%
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VeloCom Capital Structure -
03/24/00
Total Total
Total Series A Series A Series B Series B
Name Common Common Preferred Preferred Preferred Preferred
---- ------ ------ --------- --------- ---------- ---------
CRI Media Partners, L.P. 13,333
CRI Media Partners II, L.P. 53,333
-- -- 66,666
Northwood Ventures LLC 125,000
-- -- 125,000
Xxxxx Xxxxxxxx 8,333
-- -- 8,333
Xxxxx X. Xxxxxxxx 5,000
-- -- 5,000
Xxxx Xxxxxx 6,250
-- -- 6,250
Intel Corporation 833,333
-- -- 833,333
DIRECTORS, EMPLOYEES AND OPTIONS 651,948 131,133 209,999
* INCLUDES SERIES B AND B-1
TOTAL 10,631,878 11,283,826 30,575,200 30,706,333 21,894,166 22,104,165
Fully
Diluted %
Name Options Warrants Ownership Ownership
---- -------- -------- --------- --------
CRI Media Partners, L.P.
CRI Media Partners II, L.P.
66,666 0.0946%
Northwood Ventures LLC
125,000 0.1774%
Xxxxx Xxxxxxxx
8,333 0.0118%
Xxxxx X. Xxxxxxxx
Xxxx Xxxxxx
6,250 0.0089%
Intel Corporation
125,000 958,333 1.3603%
DIRECTORS, EMPLOYEES AND OPTIONS 6,233,333 7,226,413 10.2571%
* INCLUDES SERIES B AND B-1
TOTAL 6,233,333 125,000 70,452,657 100.0000%
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SCHEDULE 3.14(b)
AGREEMENTS RELATING TO EQUITY INTERESTS IN COMPANIES
VELOCOM
1. Option Agreement dated as of January 15, 1999 among the Company,
Xxxx Canada International Inc., Taquari, SLI, Qualcomm, and BID S.A.
2. Subscription Agreement between Formus and the Company dated August
20, 1999.
3. Subscription Agreement between SLI and the Company dated August 20,
1999.
4. Subscription Agreement between Taquari and the Company dated August
20, 1999.
5. Amended and Restated Investors Agreement dated as of September 27,
1999 between the Company and its principal stockholders.
6. Consent and Agreement dated September 22, 1999 between BCI, SLI,
Qualcomm, Vicunha and the Company.
7. Equity Subscription Agreements between the Company and each of
Xxxxxxx Xxxxxx, Xxxxx Xxxxxxx, R. Xxxxxx House, REINCO Corp., Xxxxxxx
X. Xxxxx, C. Xxxxx Xxxxx, Xxxxxxx Xxxxxxxxxx, North River Ventures,
Inc. Pension Plan, Xxxxxxx XxXxxxxxx, Xxxxxxxx Xxxx, Xxxx Xxxxxxx, Xxxx
Xxxxx, Xxxxxxx Xxxxxxxxx, Xxxxx Xxxxxxx, Xxxxx Xxxxx and Xxxxx
Xxxxxxxx.
8. Joinder Agreements between the Company and each of R. Xxxxxx House,
REINCO Corp., Xxxxxxx Xxxxxx, Xxxxxxx X. Xxxxx, Xxxxxxxx Xxxx, Xxxxx
Xxxxxxxx, Xxxx Xxxxxxx and Xxxxx Xxxxx.
9. Series A Preferred Stock Purchase Agreement dated as of January 26,
1999 between the Company, Telecom, Centennial and Crescendo.
10. Second Series A Preferred Stock Purchase Agreement dated as of May
7, 1999 between the Company, Telecom, Crescendo, Centennial, Xxxxx X.
Xxxxxxx, Xxxxxxx X. Xxxxxx, Xxxx X. Xxxxxx, Xxxxxx XxXxxxxx, C. Xxxxx
Xxxxx, R. Xxxxxx House and Xxxxxxx Xxxxxx.
11. Employment Letters between the Company and each of Xxxxx Xxxxxxx,
Xxxxxxx Xxxxxxxxx, Xxxxx Xxxxxxx, Xxxxx Xxxxxx, Xxxxxxx Xxxxxxx, Xxxx
Xxxxx, Xxxxxxxx Xxxxxxxx, R. Xxxxxx House, Xxxx Xxxxx, Xxxxxxx Xxxxx,
Xxxxx Xxxxx, Xxxxxxx Xxxxxx, Xxxxx Xxxxxxxxx, Xxxx Xxxxxx, Xxxxx
Xxxxxx, Xxxxxxx Xxxxxx, Xxxx Xxxxxxx, Diego Xxxxxxxxx, Xxxxxxxxx
("Xxxxxx") Xxxxxxx, Xxxx
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Xxxxxxx, Xxxx Xxxxxxxx, Xxxxxxx Xxxxxxxxx, Xxxx Xxxxx, Xxxxx Xxxxxx,
and Xxxxx Xxxxxx, Xxxxx XxXxxxxxxx, Xxxxxxx Xxxxxx and Xxxxxxxxx Xxxx.
12. Stock Option Agreements between the Company and each of Xxxxx
Xxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxx Xxxxx, Xxxx Xxxxx,
Xxxxxxx Xxxxx, Xxxx Xxxxxx, R. Xxxxxx House, Xxxxxxx Xxxxxxx, Xxxxx
Xxxxxxx, Xxxxxxxx Xxxxxxxx, Xxxxx Xxxxxx, Xxxx Xxxxx, Xxxx Xxxxxxx,
Xxxxxxx Xxxxxxxxx, Xxxxx Xxxxxx, Xxxx Xxxxxx, Xxxxxxx Xxxxxxxxx, Xxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxx, Xxxxx Xxxxxxxx, Xxxxx Xxxxxxxx, Xxxx
Xxxxxxxx Xxxxxx, Xxx XxXxxxxx, Xxxxx Xxxxxx, Xxxx Xxxxx, Xxxx Xxxxxxx,
Xxxxxxxxx ("Xxxxxx") Xxxxxxx, Xxxxx Xxxxxxxxx, Xxxxxxx Xxxxxxxxx, Xxxxx
Xxxxxx, Xxxxxxxxx Xxxx and Xxxxx XxXxxxxxxx.
13. Equity Investment Agreement dated October 21, 1999 between the
Company and certain of its stockholders.
14. Purchase Agreement dated December 6, 1999 between the Company and
the investors set forth therein.
15. Follow on Series B/B-1 Preferred Stock Purchase Agreement dated
January 7, 2000.
16. Amendment No. 1 dated January 7, 2000 to Series B Preferred Stock
Purchase Agreement dated December 6, 1999.
17. Supplemental Series B Preferred Stock Purchase Agreement dated
January 8, 2000 between VeloCom Inc. and Intel Corporation.
18. Warrant to Purchase 125,000 shares of VeloCom Common Stock issued
to Intel Corporation on February 4, 2000.
VELOCOM BRASIL
1. Option Agreement dated as of February 4, 1999 by and between Xxxx
Canada International (Brazil Telecom I) Limited and VeloCom Brasil.
2. Agreement dated as of February 4, 1999 by and between VeloCom Brasil
and QUALCOMM do Brasil S.A.
BRASIL HOLDINGS
1. Option Agreement dated as of July 30, 1999 by and between Xxxx
Canada International (Vesper S.P.) Limited and Brasil Holdings.
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85
2. Amended and Restated Shareholders Agreement dated as of December 23,
1999 between the shareholders of Vesper Sao Paulo Holding.
3. Amended and Restated Shareholders Agreement dated as of December 23,
1999 between the shareholders of Vesper Holding.
VESPER HOLDING
1. Amended and Restated Shareholders Agreement dated as of December 23,
1999 between the shareholders of Vesper Holding.
VESPER SAO PAULO HOLDING
1. Amended and Restated Shareholders Agreement dated as of December 23,
1999 between the shareholders of Vesper Sao Paulo Holdings.
ARGENTINA LLC
1. Oral agreement with Xxxxxxx Xxxxxxxxx for 1% of Argentina LLC's
interest in TMC at such time that a liquidity event occurs.
COLOMBIA LLC
1. Consulting Agreement between Colombia LLC and Xxxxxxxx Consulting
dated January 27, 1999.
INTERATIVA
1. Shareholders Agreement dated March 22, 2000 between Brasil Holdings,
Qualcomm Brasil, Xxxx Canada International Investments Limited and
Interativa.
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SCHEDULE 3.18
LICENSES
VESPER
1. Termo de Autorizacao do Servico Telefonico Fixo Comutado, Modalidade
Local, Que Entre Si Celebram A Agencia Nacional de Telecomunicacoes -
ANATEL e Vesper.)
2. Termo de Autorizacao do Servico Telefonico Fixo Comutado, Modalidade
Longa Distancia Nacional de Ambito Intra-Regional, Que Entre Si
Celebram A Agencia Nacional de Telecomunicacoes - ANATEL e Vesper.
3. License for Packet Switched Network Services issued by Anatel on
September 23, 1999.
4. License for Circuit Switched Network Services issued by Anatel on
September 23, 1999.
5. License for Dedicated Line Services issued by Anatel on September
23, 1999.
6. License for Special Services of Audio and Video Signal issued by
Anatel on September 23, 1999.
7. License for Retransmission issued by Anatel on September 23, 1999.
VESPER S.P.
1. Termo de Autorizacao do Servico Telefonico Fixo Comutado, Modalidade
Local, Que Entre Si Celebram A Agencia Nacional de Telecomunicacoes -
ANATEL e Vesper S.P..
2. Termo de Autorizacao do Servico Telefonico Fixo Comutado, Modalidade
Longa Distancia Nacional de Ambito Intra-Regional, Que Entre Si
Celebram A Agencia Nacional de Telecomunicacoes - ANATEL e Vesper S.P.
3. License for Packet Switched Network Services issued by Anatel on
September 23, 1999.
4. License for Circuit Switched Network Services issued by Anatel on
September 23, 1999.
5. License for Dedicated Line Services issued by Anatel on September
23, 1999.
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87
6. License for Special Services of Audio and Video Signal issued by
Anatel on September 23, 1999.
7. License for Retransmission issued by Anatel on September 23, 1999.
VELOCOM ARGENTINA
TELELATINA S.A.
1. By Resolution 2617SC/97 issued by the Secretary of Communications on
September 4, 1997, Telelatina was granted a license to provide Value
Added Services, Data Transmission Services and Videoconferencing
services nationwide.
2. By Resolution 3064SC/97, issued by the Secretary of Communications
on October 15, 1997, Telelatina was granted an authorization to use the
frequency bandwidth from 3,450 Mhz to 3,475 Mhz. and from 3,550 Mhz. to
3,575 Mhz. The use of these frequencies is governed by Resolution
2879SC/97 as amended by 869SC/98.
Telelatina has applied for modifications to the build out schedule under its
licenses due to the fact that certain of the equipment to be used by it is still
in the testing phase. The Company expects that each of these requests for
modification will be granted.
SMARTEL S.A.
1. By Resolution 1130SC/98 issued by the Secretary of Communications on
May 7, 1998, Smartel was granted a license to provide Value Added
Services, Data Transmission Services, Broadcasting signals carriage
services and Videoconferencing services.
2. By Resolution 1247SC/98, issued by the Secretary of Communications
on May 22, 1998, Smartel was granted an authorization to use on a
precarious basis, for the AMBA (which area comprises the City of Buenos
Aires and certain locations nearby), Xxxxxxx, Cordoba and Xxxxxxx the
frequency bandwidth from 26,850 Ghz to 27,350 Ghz. and from 31,075 Ghz.
to 31,150 Ghz. The use of these frequencies is governed by Resolution
869SC/98, as amended.
Smartel has applied for modifications to the build out schedule under its
licenses due to the fact that certain of the equipment to be used by it is still
in the testing phase. The Company expects that each of these requests for
modification will be granted.
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88
FORMUS S.A.
Bands: E Band which totals 575 MHz and consists of the following
frequencies: 25.85 to 26.35 GHz and 29.175 to 29.25 GHz (awarded
November 1998). This spectrum assignment may initially be used only in
the following cities: AMBA (Area Multiple Buenos Aires), La Plata and
Cordoba. Services: Data transmission, value added and videoconferencing
(awarded September and November 1998).
Formus Argentina has applied for modifications to the build out schedule under
its licenses due to the fact that certain of the equipment to be used by it is
still in the testing phase. The Company expects that each of these requests for
modification will be granted.
VELOCOM COLOMBIA
Bands: 300 MHz at 38 GHz; channels 13, 14, 17 (awarded November 1998).
The license fees for the 38 GHz spectrum license has been increased
from approximately US$222,000 to approximately US$534,000. This
increase is effective for the year 2000 payment due January 2000.
Services: Local carrier and value added (awarded August 1998 and May
1999)
VELOCOM PERU
Bands: 400 MHz at 38 GHz; channels 1-4 (awarded May 1999).
Services: Local carrier and value added (awarded April 1999).
INTERLOOP COLOMBIA
1. License to provide Basic Commuted Telephone Service in Colombia.
Such license was granted by Resolution 4262 issued on 9/23/97, expiring
on 12/23/2007, the scope of this license shall be for the territory of
Santa Fe de Bogota, DC (Departamento de Curdinamarca), Cali
(Departamento de Xxxxx del Cauca), Medellin (Departamento de
Antioquia), Barranquilla (Departamento de Atlantico), Bucaramanga
(Departamento de Santander), Cartagena (Departamento xx Xxxxxxx), Santa
Xxxxx (Departamento de Xxxxxxxxx), Pereira (Departamento de Risaralda),
Cucuta (Departamento del Norte de Santander) y Villavicencio
(Departamento del Meta);
2. License to provide Value Added Services, Telematics services, and
the constitution of an Associate Value Added Services Network, which
was granted by Resolucion 4472 issued on 10/10/97 expiring on
10/10/2007.
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3. Interloop Colombia was authorized to use the radioelectric spectrum
as per Resolution 5195 issued on 29/12/97. By Resolution 106 of 1999,
Interloop was authorized to use exclusively bands 23 y 3.4 Ghz within
the cities where it had been awarded with a License until 9/22/2007.
Interloop Colombia is not in compliance with certain of its build out
obligations and may face fines or revocation of its license.
ODECAR S.A.
Odecar S.A. was assigned, on December 14, 1999, per Resolution No. 404.99 of the
Direccion Nacional de Comunicaciones of Uruguay, the radioelectric sub-blocks
24.600 GHz - 24.850 GHz in Montevideo and 25,100 GHz - 25.350 GHZ, 25.600 GHZ -
25.850 GHz and 26.100 GHz - 26.350 GHz in Xxxxxxxxx for use in providing
commercial data transmission service.
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SCHEDULE 3.20
LIABILITIES
PLEASE SEE SCHEDULE 3.18 FOR POTENTIAL LIABILITIES
UNDER CERTAIN LICENSES HELD BY THE COMPANIES.
THE COMPANY
The Company has posted a US$1 million guarantee in respect of a license
bid in Uruguay which will be replaced by a US$300,000 performance bond.
VESPER
1. Liabilities under cell site and switch site leases entered into by
Vesper.
2. Vesper has guaranteed the residential leases of the following
employees of Vesper:
(a) Xxxxxxx Xxxxxx
(b) Xxxx Xxxxxx
(c) Xxxxxx Xxxxxxxx
(d) Jim Greenlaw
(e) Paul Newman
(f) Pamela Goossen
(g) Timothy Quinn
(h) Francisco Neves Filho
(i) Jean Provencher
(j) Jacques Despars
(k) Charles Laflamme
(l) Edmund del Sol
(m) Sebastian Poisson
(n) Yuan Ringuetti
3. Capitalized Leases pursuant to that certain Leasing Agreement with
IBM Brasil Leasing Arrendamento Mercantil S.A. in the total amount of
$1,800,000.
4. Debt incurred pursuant to that certain loan facility agreement
between Vesper S.A. and Nortel dated as of October 25, 1999.
5. Debt incurred pursuant to note purchase agreements dated December
16, 1999 between Vesper S.A. and Ericsson Telecomunicacoes S.A., Nortel
and Harris Corporation Networks.
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6. Debt incurred pursuant to Motorola and Lucky Goldstar CPE Supply
Agreements and related vendor financing.
VESPER HOLDINGS
1. Guaranty of Indebtedness of Vesper set forth in number 5 above.
VESPER S.P.
1. Liabilities under cell site and switch site leases entered into by
Vesper S.P.
2. Vesper S.P. has guaranteed the residential leases of the following
employees of Vesper S.P.:
(a) Norman Taylor
(b) Giles Leclerc
(c) Roland L'Esperance
(d) Claude Page
(e) Monique Baril
(f) Francois Levesque
(g) Robin Constantin
(h) Rene Quenneville
(i) Roger Croteau
(j) Francois Cote
(k) Glenda Mailloux
(l) Denis Dion
(m) Keith Knox
3. Bridge loan facility by Lucent to Vesper S.P. under the Equipment
Supply Agreement dated September 27, 1999.
4. Debt Pursuant to Credit Agreement dated December 27, 1999.
5. Debt incurred pursuant to Motorola and Luck Goldstar CPE Supply
Agreements and related vendor financing.
VESPER SAO PAULO HOLDING
1. Guaranty of Indebtedness of Vesper S.P. set forth in number 4 above.
TMC
1. Pursuant to the Lease Contract, dated March 12, 1999 between Eduardo
Manuel Stigol (Lessor) and Rigoberto Almeida Costa (Lessee). Guarantee
for three months of rent payments by TMC of Mr. Costa's residential
lease in Buenos Aires, Argentina.
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2. Liabilities under cell site and switch site leases entered into by
TMC.
VELOCOM ARGENTINA
1. VeloCom Argentina has agreed to pay the residential lease for Derek
Koecher.
Each of the Companies has obligations under the contracts set forth on Schedule
3.8.
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SCHEDULE 3.22(a)
COLLECTIVE BARGAINING AGREEMENTS
OR EMPLOYMENT AGREEMENTS NOT TERMINABLE AT WILL
VESPER
As of the date hereof, there exists no agreement between Vesper and any
union. However, Vesper will need to enter into a collective beginning
agreement with the union of telecommunication workers.
VESPER S.P.
As of the date hereof, there exists no agreement between Vesper S.P.
and any union. However, Vesper S.P. will need to enter into a
collective beginning agreement with the union of telecommunication
workers.
BRHS
As of the date hereof, there exists no agreement between BRHS and any
union. However, as a data processing type of company, BRHS is subject
to the terms of the Collective Bargaining Convention of the Data
Processing, Information Technology and Similar Companies' Union of the
State of Minas Gerais - SINDADOS/MG and the Data Processing Companies'
Association of the State of Minas Gerais - SINDINFOR.
TMC
1. Collective Bargaining Agreements: TMC is not currently making
payments according to any collective bargaining agreement, but there is
a risk that certain of its employees be deemed to be included under the
following collective bargaining agreements:
(i) Collective Bargaining Agreement for Commercial
Employees ("CBACE") Nbr. 130/7.
(ii) FOEESITRA (Federacion de Obreros, Especialistas y
Empleados de los Servicios e Industria de las
Telecomunicaciones de la Republica Argentina).
(iii) Traveling Salesman Collective Bargaining Agreement
for traveling salesmen, Nbr. 308/75.
No dispute, arbitration, litigation or breach exists under any
collective bargaining agreement.
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TMC Employment Agreements which are not terminable at will without making
severance payments:
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N(0) LAST NAME_NAME JOINING
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1 Alvarez, Jose Luis 15/3/99
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2 Angel Juan Carlos 1/3/00
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3 Arce Walter 24/5/99
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4 Battini Ariel 13/3/00
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5 Berra Marenco Emilio 1/3/00
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6 Bertola Marcelo 1/7/99
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7 Blauzwirn Pablo E. 8/2/99
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8 Bossio Rafael 24/5/99
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9 Boulay Marcelo Roberto 15/2/00
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10 Bran Pablo 10/3/00
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11 Bravo Ricardo 1/11/98
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12 Burgueno Juan Manuel 1/3/99
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13 Caffaro Kramer Rodolfo 1/2/00
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14 Cambas Maximiliano 1/3/00
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15 Campese Natalia Mara 14/2/00
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16 Campora Maximiliano 15/3/00
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17 Carbone Lorena 4/1/99
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18 Cazenave Luciana 12/4/99
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19 Cengia Bevilaqua Alejandro 1/3/00
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20 Cocimano Daniel 11/6/99
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21 Contsomanolaki Alejandro 5/7/99
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22 Cristallo Alejandra 4/1/99
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23 Cuesta Fernando Anibal 5/5/99
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24 de Luque Mariano Javier 1/8/98
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25 Di Lello Roberto 13/3/00
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26 Engel Valeria 1/3/00
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27 Escala Nestor 3/5/99
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28 Esperon Jose Luis 10/5/99
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29 Fara Mariela 2/3/00
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30 Fernandez Maria Jose 12/5/99
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31 Fourcade Edgardo 22/6/99
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32 Fryd Andres 1/3/00
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33 Garcia Ezequiel 1/3/00
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34 Garcia Jose 9/6/99
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35 Garcias Natalia 12/4/99
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36 Gatti Leandro 14/3/00
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37 Gerardi Maximiliano 1/7/99
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38 Gorini Fernando 7/6/99
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39 Granja Anabella 1/2/98
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40 Gurevich Pablo 1/3/00
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41 Guzman Luis 21/2/00
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42 Horvat, Jacobo 3/5/99
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43 Iglesias Sergio 1/9/98
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44 Igounet Maria 1/4/99
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45 Iurcovich Patricia 4/1/99
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46 Janczuk Juan Carlos 1/4/99
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47 Jovenich Victor Augusto 3/5/99
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48 Kraefft Mariano 1/6/99
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49 L' Avena Teresa Haydee 19/4/99
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50 Landea Pablo 13/3/00
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51 Lecaroz Fernanda 1/3/00
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52 Liberman Carla 1/3/00
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53 Lisjak Ariel 26/7/99
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54 Lopez Ignacio Ruben 9/8/99
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55 Lucero Carlos Mauricio 21/2/00
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56 Melero Roberto E. 3/5/99
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57 Mendez Guerin Nicolas 23/11/99
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58 Micale Jorge 17/1/00
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59 Mielke Cristian 13/3/00
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60 Moix Roman Angel 12/4/99
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61 Mollo Freytaz Carlos 1/12/98
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62 Morey Gustavo 1/6/99
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63 Munoz Pablo Gabriel 24/2/00
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64 Musumeci Sergio 1/6/99
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65 Nirich Ivonne 1/3/00
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66 Nuguer Ezequiel 1/3/00
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67 Nuguer Karina 1/6/99
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68 Olaechea Fabio 6/3/00
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69 Panduro Angel 14/3/00
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70 Pelizza Luis Jorge 1/4/99
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71 Perez Mango Luciano 1/3/00
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72 Pompa Natalia 8/3/00
-----------------------------------------------------------------------
73 Pomponio Myriam 1/3/00
-----------------------------------------------------------------------
74 Ponce Maria Sandra 1/11/98
-----------------------------------------------------------------------
75 Quinones Maria Soledad 1/3/00
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76 Raffa Jorge 1/3/00
-----------------------------------------------------------------------
77 Reinhardt Pablo 1/3/00
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78 Resta Horacio 1/3/00
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79 Ricke William 1/12/99
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80 Rodriguez Christian Ariel 16/2/00
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81 Rodriguez Gesto Javier 2/3/00
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82 Romeo Mariano 5/7/99
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83 Rubin Ubaldo 4/1/99
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84 Ruiz Maria Alejandra 1/12/98
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85 Salas Grabole Gustavo 1/4/99
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86 Sawon Ricardo 10/5/99
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87 Sonzogni Novo Jorge 13/3/00
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88 Stallocca Amalia Mabel 1/2/99
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89 Stavridis Guillermo 1/3/00
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90 Tibaldo Mauricio E. 1/6/99
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91 Torchiana Eliana 2/3/00
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92 Torres Julio 17/6/99
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93 Torriglia Alejandro 18/1/00
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94 Udry Juan Pablo 1/3/00
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95 Venenati Mariano 1/7/99
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96 Villalba Eduardo H. 12/4/99
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97 Villeco Diego 1/4/99
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98 Zaidel Alejandro 1/6/99
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99 Zayat, Gonzalo Manuel 7/6/99
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100 Zelalia German 6/3/00
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101 Zumarraga Juan Pablo 1/6/99
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VELOCOM ARGENTINA
VeloCom Argentina employment agreements which are not terminable at
will without making severance payments:
1. Rudolfo Pella
2. Ana Guiqou
In addition, this entity is responsible for social security "OSDE"
benefits for these employees.
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97
SCHEDULE 3.22(b)
EMPLOYEES AND DIRECTORS OF THE COMPANY
TERM OF
EMPLOYEE POSITION SALARY BENEFITS EMPLOYMENT*
---------------------------------------------------------------------------------------------------------------------------
Fred Vierra Chairman - Non-Employee $ 0.00 $ 3,600.00
David Leonard President & CEO $ 325,000.00 $ 90,000.00 At Will
Nick Kauser Acting Chief Technology Officer $ 120,000.00 $ 36,000.00 At Will
Barry Rowan Chief Financial Officer $ 250,000.00 $ 52,500.00 At Will
John Gowen Chief Business Development Officer $ 225,000.00 $ 60,000.00 At Will
Michael Quinn Chief Corporate Development Officer $ 250,000.00 $ 75,000.00 At Will
Greg Sadler VP Finance & Treasury $ 175,000.00 $ 45,000.00 At Will
Dwayne House VP Operations $ 175,000.00 $ 45,000.00 At Will
Mike Casullo VP Information Technology $ 120,000.00 $ 33,000.00 At Will
Billi McCullough General Counsel $ 165,000.00 $ 50,000.00 At Will
Cristiano Amon VP Technology $ 162,500.00 $ 50,000.00 At Will
David Tomizuka VP Internet Strategy & Business Development $ 200,000.00 $ 60,000.00 At Will
Mark Johnson VP IP Services $ 110,000.00 $ 33,000.00 At Will
Ann Doris VP Marketing & Communications $ 175,000.00 $ 51,000.00 At Will
Derek Koecher Financial Analyst $ 96,525.00 $ 19,500.00 At Will
Patti Reichman Controller & Director of Administration $ 110,000.00 $ 27,000.00 At Will
Julia K. Hughes Executive Assistant $ 50,000.00 $ 13,500.00 At Will
Lisa Gamel Graphic Design Specialist $ 36,400.00 $ 9,900.00 At Will
Wendy Shantz Administrative Assistant $ 40,000.00 $ 12,000.00 At Will
Receptionist/Admin Assist $ 29,000.00 $ 9,000.00 At Will
Julie Garcia Administrative Assistant $ 35,000.00 $ 12,000.00 At Will
Brad Johnson VP Development Southern Cone & Andean Region $ 225,000.00 $ 67,500.00 At Will
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Steve Dougherty VP VeloCom do Brasil $ 260,000.00 $ 75,000.00 At Will
Chuck Schneider Director Planning & Reporting $ 117,500.00 $ 45,000.00 At Will
Zachary Frisch Financial Analyst $ 35,000.00 $ 10,500.00 At Will
Henry Peraza VP VeloCom do Brasil $ 150,000.00 $ 45,000.00 At Will
Diego Rodriguez Director of Transition Management - Andean Region $ 120,000.00 $ --
Phil Shoemaker Director of Implementation and Deployment $ 110,000.00 $ 33,000.00
Guillermo Ramirez Senior Project Manager, VeloCom do Brasil $ 97,750.00 $ 29,000.00
through Brazil and Argentina:
Ana Guigou Argentina Admin $ 19,500.00 $ 10,500.00 At Will
Cristina Diegues Secretary $ 25,677.00 $ 3,000.00 At Will
Naomi Periera Secretary $ 24,072.00 $ 18,000.00 At Will
Rodolfo Pella Argentine Engineer $ 101,000.00 $ 19,500.00 At Will
Antonio de Salles Operations Manager $ 123,891.00 $ 36,000.00 At Will
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SCHEDULE 3.23
EMPLOYEE BENEFIT PLANS
VELOCOM
1. VeloCom Stock Option Plan.
2. VeloCom Death and Disability Plan.
3. Vision Care Plan.
4. Humana Medical PPO Plan.
5. Reliant Life Insurance Plan.
6. Delta Dental Plan.
VESPER
Vesper executive compensation package.
VESPER S.P.
Vesper S.P. executive compensation package.
TMC
1. Insurance policy No. 1996 of Generali Argentina Compania de Seguros
Patrimoniales regarding labor risk of employees.
2. Tickets for buying at restaurants "Ticket Restaurant" ($ 10 per
employee for each working day) and Tickets for buying other goods
"Ticket Canasta" ($ 150 per employee, per month).
3. Social security "OSDE", "Docthos", "OSECAC" and Accion Social de
Empresarios for employees.
4. Difference of price of social security (Argentine pesos 35 per
month) in favor of Carlos Esteban Castro.
5. Other benefits arising out of the labor agreements entered into by:
(i) Rigoberto Almeida Costa, TMC and Fabio Adriano Gallinea, and (ii)
William Ricke.
6. TMC has agreed to institute a phantom stock option plan for senior
management by year end. This stock option plan is subject to the
approval of the Company's board of directors.
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SCHEDULE 3.24
RECORDKEEPING COMPLIANCE
NONE
