LOCK UP AGREEMENT
Exhibit 10.9
This private instrument, hereinafter referred to as “Agreement”, is made by and between:
AG Telecom Participações S.A., a company with its registered office located at Avenida do Contorno,
No. 8.123, Bairro Cidade Jardim, Belo Horizonte, MG, enrolled with the tax payer national registry
under number 03.260.334/0001-92, hereafter referred to as “AG Telecom”, represented herein in
accordance to its by-laws;
Asseca Participaçoes S.A., a company with its registered office located at Xxx Xxxxxxxx, Xx. 000,
xxxxx 00Xxx Paulo, SP, enrolled with the tax payer national registry under number
03.548.276/0001-05, hereafter referred to as “Asseca”, represented herein in accordance to its
by-laws;
LF Tel S.A. a company with its registered office located at Avenida. Xx. Xxxxxx Xxxxxx No. 920, 16º
floor, São Paulo, SP, enrolled with the tax payer national registry under number
02.390.206/0001-09, hereafter referred to as “LF Tel”, represented herein in accordance to its
by-laws;
Lexpart Participações S.A., a company with its registered office located at Xxx Xxxxxxx Xxxxx Xx.
0, 00x xxxxx, room 0, Xxx xx Xxxxxxx, XX, enrolled with the tax payer national registry under
number 03.204.002/0001-90, hereafter referred to as “Lexpart”, represented herein in accordance to
its by-laws;
Brasilcap Capitalização S.A., a company with its registered office located at Xxx Xxxxxxx Xxxxxx
Xx. 000, 00x floor, Rio de Janeiro, RJ, , enrolled with the tax payer national registry under
number 15.138.043/0001-05, hereafter referred to as “Brasilcap”, represented herein in accordance
to its by-laws;
BNDES Participações S.A — BNDESPAR, a company with its headquarters located in Brasília, Federal
District, and with office Xxxxxxx Xxxxxxxxx xx Xxxxx Xx. 000, 00x and 20o
floors, Rio de Janeiro, RJ, enrolled with the tax payer national registry under number
00.383.281/0001-09, hereafter referred to as “BNDESPAR”, represented herein in accordance to its
by-laws;
Brasil Veículos Companhia de Seguros, a company with its registered office located at Xxx Xxxxxxx
Xxxxxx Xx. 000, 00x floor, Rio de Janeiro, enrolled with the tax payer national registry under
number 01.356.570/0001-81, hereafter referred to as “Brasil Veículos”, represented herein in
accordance to its by-laws;
Fundação Atlântico de Seguridade Social, an institution with its registered office located at Xxx
Xxxxx Xxxxxx Xx. 000, 00x floor, room 2901, Botafogo, Rio de Janeiro, RJ, enrolled with the tax
payer national registry under number 07.110.214/0001-60, hereafter referred to as “Fundação
Atlântico”, represented herein in accordance to its by-laws;
Fiago Participações S.A., a company with its registered office located at Avenida Presidente
Xxxxxx, No. 231 — 11º floor, enrolled with the tax payer national registry under number
02.335.514/0001-23, hereafter referred to as “Fiago”, represented herein in accordance to its
by-laws;
AG Telecom, Asseca, LF Tel, Lexpart, Brasilcap, BNDESPAR, Brasil Veículos, Fundação Atlântico and
Fiago hereinafter being referred to collectively as the “Parties” and individually as a “Party”;
and
Telemar Participações S.A., a company with its registered office located at Xxxxx xx Xxxxxxxx 000,
00x floor, room 1101 (part), Rio de Janeiro, RJ, enrolled with the tax payer national
registry under number 02.107.946/0001-87, hereafter referred to as “Company”, represented herein
in accordance to its by-laws; and for the purposes of this Agreement an intervening party;
Whereas the Company management has proposed a corporate restructuring through which Tele Norte
Leste Participações S.A. (“TNL”), a controlled subsidiary of the Company, will ask its
shareholders to approve a corporate transaction under Brazilian corporate law known as
incorporação de ações (or stock swap).
Whereas if the stock swap is consummated, TNL shareholders (other than the Company) will exchange
their TNL shares for common shares newly issued by the Company, causing TNL to become a
wholly-owned subsidiary of Company.
Whereas for the purpose of implementing the stock swap the Company filed with the Securities and
Exchange Commission of the United States of America a registration statement on Form F-4
(Registration No. 333-133992) registering the Company’s common shares to be issued pursuant to the
stock swap.
Whereas the management of the Company and of TNL have recommended the Parties not to sell or offer
to sell the common shares, and derivatives thereof, of the Company held by the Parties in any stock
market or stock exchange, until six months after the date approval of the stock swap by the
shareholders of the Company in accordance with Brazilian laws, since such transactions could
adversely affect the stock swap.
Whereas each Party agrees to attend the recommendation of the Company and of TNL and, consequently,
agrees not to sell or offer to sell in any stock market or stock exchange the common shares, and
derivatives thereof, of the Company it holds, during six months after the date of approval of the
stock swap by the shareholders of the Company in accordance with Brazilian laws;
Now therefore, in reliance upon the representations, warranties and covenants made herein and in
consideration of the mutual agreements herein contained, the parties hereto agree as follows:
1. In recognition of the benefit that the stock swap will confer upon the Company, each Party
agrees and undertakes before each other party and the Company not to, during a period of 180 (one
hundred and eighty) days commencing on the date of the Shareholders’ Meeting of the Company
approving the stock swap in accordance with Brazilian laws (“Restriction Period”), sell or offer to
sell in any stock market or stock exchange the common shares, and derivatives thereof, issued by
the Company which such Party holds on the date of effectiveness of this Agreement as specified in
paragraph 3 below (“Restricted Securities”). Derivatives for the purpose hereof shall mean the
bonds and securities traded in futures markets or other instruments for which securities issued by
the Company serve as underlying or referenced assets.
2. Each Party also agrees that this Agreement shall be filed with the Company in its headquarters
and any transaction involving the Restricted Securities not permitted by the terms of this
Agreement shall be null and void ab initio, and the Company shall instruct the registrar agent of
the Restricted Securities not to transfer ownership of any Restricted Security in violation of this
Agreement. The Parties hereby instruct the Company to file this Agreement with the transfer agent
of the Restricted Securities for the purposes hereof and pursuant to the article 118 of the
Brazilian Federal Law No. 6,404/76 as amended.
3. The Parties execute this Agreement under suspensive condition (condição suspensiva), in
accordance with article 125 of Brazilian Federal Law No. 10.406, as of January 10th,
2002 (the Brazilian Civil Code), being the effectiveness of this Agreement conditioned to the
approval of the stock swap by the shareholders of the Company in accordance with applicable laws.
Furthermore, this Agreement shall automatically terminate upon the termination of the Restriction
Period.
4. All notices or other communication arising from or in connection with this Agreement shall be in
writing and delivered by hand, registered or certified mail, or express delivery service, return
receipt requested, to the addresses set out in the preamble of this Agreement. Notices shall be
deemed to have been given for the purposes of this Agreement on the day such notice is sent.
5. Wherever possible, each provision of this Agreement shall be construed in such a manner as to be
valid and effective under applicable law. If, however, any provision hereof is found to be invalid
or void, it shall be invalid or void only to the extent required by law, and no other provisions
hereof shall be affected or impaired thereby but shall continue in full force and effect.
6. The Parties hereby elect the courts of the City of Rio de Janeiro, State of Rio de Janeiro, for
the resolution of any disputes arising out of this Agreement, to the exclusion of all other court,
however privileged it may be.
In witness whereof, the Parties to this Agreement and the Company by their duly authorized
representatives have executed this Agreement in 10 (ten) counterparts before the undersigned
witnesses.
Xxx xx Xxxxxxx, 00 xx xxxxxxxx xx 0000.
In the capacity of shareholder of the Company:
AG Telecom Participações S.A.
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Asseca Participaçoes S.A. | |
LF Tel S.A.
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Lexpart Participações S.A. | |
Brasilcap Capitalização S.A.
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BNDES Participações S.A — BNDESPAR | |
Brasil Veículos Companhia de Seguros
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Fiago Participações S.A. | |
Fundação Atlântico de Seguridade Social |
In the capacity of intervening party:
Telemar Participações S.A.
In the capacity of Witnesses:
Name:
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Name: | |
Id. Number:
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Id. Number: |
