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Exhibit 2.10
SHAREHOLDER AGREEMENT
By virtue of this private instrument entered into between the following parties,
the party of the first part:
* Telefonica Interactiva Brasil Ltda., a limited-liability joint-stock
corporation, duly organized and in existence pursuant to the laws of the
Federative Republic of Brazil, with head office at Xxx xx Xxxxxxxxxx 000,
0x xxxxx, xx the City of Sao Paulo, State of Sao Paulo, registered with
the CNPJ under No. 03.185.736/0001-70, with its Corporate Charter duly
registered with the Sao Paulo State Trade Board on May 31, 1999 under No.
00.000.000.000, herein represented by its Manager-Representative Xx. Xxxxx
X. Xxxxxxx, hereinafter to be referred to as "INTERACTIVA;"
and the parties of the second part:
* RBS Administracao e Cobrancas Ltda., a limited-liability joint-stock
corporation duly organized and existing in accordance with the laws of the
Federative Republic of Brazil, with head office at Avenida [ILLEGIBLE]
rico Verissimo, 400, in the City of Porto Alegre, State of Rio Grande do
Sul, registered with the CNPJ under No. 94.995.693/0001-43, herein
represented by its directors, Messrs. Xxxxxx Xxxxxxx Sirotsky and Xxxxxx
Xxxxxxxxx Xxxxxx, and hereinafter to be referred to as "RBS;"
* MLSP -- Comercio e Participacoes Ltda., a limited-liability joint-stock
corporation, duly organized and existing in accordance with the laws of
the Federative Republic of Brazil, with head office at Xxx Xxxxxxx
Xxxxxxx, 000/000, Xxxxxx Higienopolis, in the City of Porto Alegre, State
of Rio Grande do Sul, registered with the CNPJ under No.
02.429.422/0001-02, with its Corporate Charter duly recorded at the Rio
Grande do Sul State Trade Board on March 24, 1998, under No.
00.000.000.000, herein represented by its managing partners Messrs. Xxxxxx
Xxxxxxxxx Xxxxxx, a Brazilian citizen, married, an electronics engineer,
holder of RG Identification Card No. 8000873409 SSP-RS and registered with
the CPF/MF under No. 000.000.000-00, residing and domiciled in the City of
Porto Alegre, State of Rio Grande do Sul at Rua Coronel Camisao, 237,
apto. 601, and Xxxxxxx Xxxxx Xxxxxxx, a Brazilian citizen, divorced, an
electronics engineer, holder of RG Identification Card No.
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4007554423 SSP-RS and registered with the CPF/MF under No. 000.000.000-00,
residing and domiciled in the City of Porto Alegre, State of Rio Grande do
Sul at Xxx Xx. Xxxx, 000, apto. 202-B, hereinafter to be referred to as
"MLSP;"
* Xxxxxx Xxxxxxx xx Xxxxx, a Brazilian citizen, divorced, an attorney,
holder of RG Identification Card No. 1006824658 SSP-RS and registered with
the CPF/MF under No. 000.000.000-00, residing and domiciled in the City of
Porto Alegre, State of Rio Grande do Sul at Rua Engenheiro Xxxxxxx
Xxxxxxxx, 164, apto. 301, hereinafter to be referred to as "AAM;"
* Luiz Xxxxxxx Xxxxxxxxxx, a Brazilian citizen, single, a business manager,
holder of RG Identification Card No. 2006515817 SSP-RS and registered with
the CPF/MF under No. 000.000.000-00, residing and domiciled in the City of
Porto Alegre, State of Rio Grande do Sul at Xxxxxxx Xxxxx Xxxxx, 0000,
hereinafter to be referred to as "LAB;" and
* Xxxxxx Xxxx Xxxxx de Xxxxx, a Brazilian citizen, married, a systems
analyst, holder of RG Identification Card No. 5002912995 SSP-RS and
registered with the CPF/MF under No. 000.000.000-00, residing and
domiciled in the City of Porto Alegre, State of Rio Grande do Sul, at Xxx
Xxxxxxxxxxx Xxxxxxx, 000, apto. 401, hereinafter to be referred to as
"SBJ;"
and as Consenting Mediator:
* Nutec Informatica S.A., a corporation duly organized and existing in
accordance with the laws of the Federative Republic of Brazil, with head
office at Xxx Xxxxxxxx, 0000, sub-solo, Morro de Santa Tereza, in the City
of Porto Alegre, State of Rio Grande do Sul, registered with the CNPJ
under No. 91.088.328/0001-67, herein represented by its Directors, Messrs.
Xxxxxx Xxxxxxx Sirotsky and Xxxxxx Nova Berno de Xxxxx, hereinafter to be
referred to as "NUTEC."
Each of the parties, hereinafter individually to be referred to as "Party," and
jointly as "Parties," i.e., RBS, MLSP, AAM, LAB and SBJ, and jointly to be
referred to as "Non-Controlling Shareholders," have henceforth agreed to the
following:
WHEREAS on this date INTERACTIVA became shareholder of NUTEC, through the
subscription of common stock of NUTEC representing the majority of NUTEC's
voting capital, thereby obtaining control of NUTEC;
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WHEREAS the Non-Controlling Shareholders jointly hold 83.33% (eighty-three point
three three percent) of the capital stock of NUTEC, thereby representing a
significant proportion of its capital stock;
WHEREAS the Parties are currently the sole shareholders of NUTEC;
WHEREAS the Parties wish to establish and formalize certain terms and conditions
that shall govern their participation and relationship in NUTEC;
the Parties have duly agreed to sign this Shareholder Agreement ("Shareholder
Agreement") pursuant to the following terms and conditions:
1. The Non-Controlling Shareholders expressly acknowledge that as of the
subscription and effective paying-in of the shares by INTERACTIVA, pursuant to
the terms of the Minutes of the Extraordinary General Shareholders Assembly of
NUTEC held on this date, and the respective Subscription Notice ("ESA"),
INTERACTIVA assumes the capacity of controlling shareholder of NUTEC, thereby
holding the majority vote in the corporate resolutions and the power to direct
the corporate activities and to elect all members of its administrative bodies.
At the General Assemblies the Non-Controlling Shareholders therefore promise to
vote their common shares in uniform fashion, at all times in accordance with the
INTERACTIVA's, and to not oppose it.
2. The Non-Controlling Shareholders are henceforth guaranteed at all times,
subject to written notification to be made to NUTEC and INTERACTIVA, the right
to request the redemption of all their respective shares. To this end,
INTERACTIVA and the other Non-Controlling Shareholders irrevocably promise to
vote, at the NUTEC Extraordinary General Assembly to be held on a date to be
determined by the Non-Controlling Shareholders in the notification, to remove
the Non-Controlling Shareholders by means of a redemption of all their shares,
by payment thereto of funds or securities, in proportion to their respective
redeemed shares.
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3. Receipt of the notification provided for in Clause 2 shall constitute a
convocation to the NUTEC Extraordinary General Shareholders Assembly mentioned
in Clause 2 supra, thereby dispensing with any other convocation procedure
provided for by law.
4. During the validity period of this Shareholder Agreement, the Non-Controlling
Shareholders may not assign, sell, transfer, donate or in any form encumber any
of their shares representing the capital of NUTEC.
5. The Non-Controlling Shareholders, on their own behalf and on that of their
subsidiary corporations, controlled firms or affiliates, direct or indirect, as
well as their partners, directors and employees, irrevocably and unconditionally
promise to not compete with Nutec so long as they are shareholders of Nutec and
for a period of 2 (two) years after their withdrawal from Nutec, solely with
respect to the activities currently performed by Nutec.
5.1. In the same way, Non-Controlling Shareholders, on their own behalf and on
that of their subsidiary corporations, controlled companies or affiliates,
direct or indirect, as well as their partners, directors and employees
unconditionally and irrevocably promise, directly and indirectly, by means of
any other individual or legal entity,
(a) [not?] to request, attract, persuade or induce any Employee,
pursuant to the definition thereof below in this letter (a), to: (i)
cancel or fail to renew or expand his employment relationship with
Nutec or its Subsidiaries; or (ii) establish any contractual
relationship with any Competing Business. For the purposes provided
for herein, "Employee" shall mean and include parties employed by
Nutec and its Subsidiaries on this date or during the time of the
execution of any actions prohibited by this item (a), in any
position or function, even in management. The obligation assumed
herein shall remain in force for a period of 12 months as of this
date with respect to Employees, except with respect to the Employees
mentioned in Annex 1, with respect to which the obligation shall
remain in force for 24 months after this date.
(b) insofar as they are shareholders of Nutec and for a period of 2
years after their withdrawal from Nutec, [not?] to request, attract,
persuade or induce any Client or Supplier, in accordance with the
definitions provided herein, to cancel, reduce or fail to renew or
expand its agreements or other relationships with Nutec or any of
its Subsidiaries, to become a client thereof or to formalize any
agreement or any other relationship of this type with a competing
business. For the purposes set forth herein, "Client" shall mean and
shall include all clients of Nutec and/or its Subsidiaries during a
period of 12 (twelve)
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months immediately prior to the date this Agreement is entered into;
"Supplier" shall mean and shall include all entities from which
Nutec and/or its Subsidiaries acquire goods and other materials
during the 12 (twelve)-month period immediately prior to the date
this Agreement is entered into, with the exception of clients and
suppliers of RBS as provided for in clauses 4(a) and (c).
5.2. The Non-Controlling Shareholders promise also, on their own behalf, and on
that of their subsidiary corporations, parent companies, controlled companies or
affiliates, during the validity period of the Agreement, to ensure that their
partners, directors and employees act in the same form, to persuade any
Employees seeking to be placed in a job or independent contracting to remain at
Nutec or at the Subsidiaries for a minimum period of 6 months prior to the
intended engagement.
5.3. With respect to the joint development of future processes and preferential
treatment in hiring, so long as they are shareholders of Nutec and for a period
of 2 (two) years after the withdrawal of RBS of Nutec, the Parties agree to the
following:
(a) The restriction contained in item 1 above shall not extend to projects
or activities, current or future, related to the Internet, which are
developed or performed by RBS through its newspapers, television or radio.
Subject to satisfactory conditions and normal market practice, NUTEC shall
have exclusive rights for two years for the publication, by means of what
is known as a "portal" in the Internet world, of RBS content and that of
companies of the RBS group. After two years of the aforementioned
exclusive right, RBS shall continue to give NUTEC right of first refusal
in the publication of its content, although not exclusive access;
(b) Subject to joint agreement, NUTEC may use the content produced and
owned by RBS to develop exclusive channels via Internet, publishing the
respective author credits, establishing prices by joint agreement
consistent with the revenue earned on the aforementioned channels; RBS
agrees that for a period of 3 (three) months after that date, NUTEC may
use the RBS content gratis;
(c) NUTEC shall have the non-exclusive and non-discriminatory right to
develop joint projects for the access, processing and distribution of
content through companies of the RBS television group as of that date. In
addition, RBS shall make its best efforts to involve NUTEC in any and all
negotiations that it may undertake with third parties with respect to such
projects as involve access, processing and distribution of content, as
well as in order that companies
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affiliated with, related to or associated with RBS grant NUTEC the
aforementioned right;
(d) With respect to future developments (i) of interactive services by RBS
of open television channels; and (ii) developments such as Web TV, Info
TV, Web casting, RBS shall hold conversations with NUTEC to involve it in
the offering that RBS shall make in the businesses relating to these new
activities.
6. This Shareholders Agreement shall remain in force for a period of 1 (one)
year after this date, and may be extended by means of a written instrument
signed by all the Parties. The rights and obligations provided for in Clause 5
and sub-items supra, shall remain after recission, termination or cancellation
of this Shareholder Agreement, pursuant to the conditions set forth in the
aforementioned Clause.
7. For purposes of Article 118 of the Corporations Law, one copy of this
Shareholder Agreement was filed at the corporate head office of NUTEC. In
addition, the rights conferred on the NUTEC shareholders and their respective
obligations shall be recorded in all the NUTEC corporate books and share
certificates, if issued.
8. All notifications, solicitations, requests and other communications provided
for herein or with respect to this Shareholder Agreement shall be made in
writing to the Parties at the address specified in the preamble to this
Shareholder Agreement and shall be considered as having been received when
accompanied by a notice of receipt or when made by telex, telegram or confirmed
fax, or at any other address that the Parties may specify periodically in
writing, in accordance with the provisions of this Clause.
9. The terms and conditions of this Shareholders Agreement shall be
unconditional, irrevocable and binding on the Parties, their legal
representatives, successors or assignees under any circumstances, any creditors
holding guarantees, usufructuaries, acquiring third parties or subscribers of
shares in NUTEC.
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10. Notwithstanding any of the rights attributed to the Parties in this
Shareholder Agreement, in the event that any of the obligations contained herein
fail to be fulfilled by either of the Parties, the harmed Party may file for
specific execution of this Shareholder Agreement, pursuant to Article 118,
paragraph 3 of the Corporations Law and Articles 461, 639, 640 and 641 of the
Brazilian Civil Procedures Code, and applicable legal provisions.
11. Notwithstanding the provisions contained in Clause 10 above, each of the
Parties promises to compensate the other party for any loss, damage, cost or
expense resulting from the breach of any of the obligations agreed to in this
Shareholder Agreement.
12. NUTEC expressly agrees with all the terms and conditions contained in this
Shareholder Agreement. In addition, NUTEC promises to fulfill and to take all
necessary measures to ensure the fulfillment of all the terms and conditions
established in this Shareholder Agreement, including by third parties. The
Parties authorize NUTEC to sign this Shareholder Agreement and to undertake such
other actions as result therefrom.
13. Any changes or amendments to this Shareholder Agreement shall be made in
writing through an instrument entered into by the authorized representatives of
all Parties. Tolerance by any of the Parties, at any time, in demanding
fulfillment of any provision of this Shareholder Agreement shall not be
interpreted as a waiver of such right, nor shall affect the validity of this
Shareholder Agreement or any part thereof, or of the right of such party to
demand fulfillment of the aforementioned provision. No tolerance of any
violation of this Shareholder Agreement shall constitute a waiver of the
exercise of rights with respect to any subsequent violation.
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14. Neither Party shall make any disclosures, press releases or public
announcements with respect to the content of this Shareholder Agreement, without
the prior written consent of the other Parties.
15. This Shareholder Agreement shall be governed by Brazilian law. The Parties
hereby elect the central forum of the City of Sao Paulo, State of Sao Paulo, to
resolve any disputes as may arise from this Shareholder Agreement, waiving any
other regardless of such privileges as may correspond thereto.
Being therefore in due agreement, the Parties hereby sign this Shareholders
Agreement in 6 (six) identical copies, in the presence of 2 (two) witnesses.
Porto Alegre, June 15, 1999
[signature]
Telefonica Interactiva Brasil Ltda.
[signature]
RBS Administracao e Cobrancas Ltda.
[signature]
MLSP Comercio e Participacoes Ltda.
[signature]
Xxxxxx Xxxxxxx xx Xxxxx
[signature]
Luiz Xxxxxxx Xxxxxxxxxx
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[two lines of illeg. text]
[signature]
Xxxxxx Xxxx Xxxxx de Xxxxx
Consenting Mediator
[signature]
Nutec Informatica S.A.
Witnesses:
1. [signature] 2. [signature]
XXXXXXX XXXX XXXXX Xxxxxx Xxxxxxx Xxxx Xxxxxxxx
XX. No. [illeg.] RG: 27.068.059-8 SSP/SP
For purposes of Article 118 of Law No.6,404/76, one copy of this Shareholder
Agreement was filed on this date at the NUTEC head office.
Porto Alegre, June 15, 1999
[signature]
Nutec Informatica S.A.
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The following annex to this agreement has not been included:
- Annex 1 - List of employees
Copies of the annex not included herein will be provided upon request.
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AGREEMENT TO REVOKE SHAREHOLDER AGREEMENT
The undersigned:
o Telefonica Interactiva Brasil Ltda., a limited liability stock company,
duly organized and existing under the laws of the Federative Republic of
Brazil, with registered office at Xxx xx Xxxxxxxxxx, 000, 0xx Xxxxx, Xxxx
00-X, in Sao Paulo, State of Sao Paulo, tax identification No.
03.185.736/0001-70, withits articles of organization duly recorded with
the Commercial Board of the State of Sao Paulo on May 31, 1999 under No.
00.000.000.000, represented herein by its General Manager, Xx. Xxxxx X.
Xxxxxxx, Brazilian, married, attorney, identification card No. RG
3.333.998 (SSP/SP), taxpayer identification No. 000.000.000-00, residing
and domiciled in Sao Paulo, with offices at Xxx xx Xxxxxxxxxx, 000, 0xx
Xxxxx, hereinafter referred to as "Interactiva";
and
o RBS Administracao e Cobrancas Ltda., a limited liability stock company,
duly organized and existing under the laws of the Federative Republic of
Brazil, with registered office at Avenida Xxxxx Xxxxxxxxx, 400, in the
city of Porto Alegre, State of Rio Grande do Sul, tax identification No.
94.995.693/0001-43, represented herein by its director, Xxxxxx Xxxxxxx
Sirotsky, Brazilian, married, business manager, identification card No. RG
0000000000, taxpayer identification No. 000.000.000-00, residing and
domiciled in Porto Alegre - RS, at Xxx Xxxxxxx, 00, together with his
attorney-in-fact, according to the publicly recorded power of attorney on
file with the 7th Notary Office of the Jurisdiction of Porto Alegre - RS,
Ibanor Polesso, Brazilian, married, accountant, identification card No. RG
0000000000, taxpayer identification No. 000.000.000-00, residing and
domiciled in Montenegro - RS at Xxx Xxxxx Xxxxxxx Xxxxxx, 000, hereinafter
"RBS";
o Xxxxxx Xxxxxxx xx Xxxxx, Brazilian, divorced, attorney, identification
card No. RG 0000000000 SSP-RS, taxpayer identification No. 000.000.000-00,
residing and domiciled in the city of Porto Alegre, State of Rio Grande do
Sul, at Rua Engenheiro Antonio
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Reboucas, 164, apt. 301, hereinafter "AAM";
o Luiz Xxxxxxx Xxxxxxxxxx, Brazilian, unmarried, business manager,
identification card No. RG 0000000000 SSP-RS, taxpayer identification No.
000.000.000-00, residing and domiciled in the city of Porto Alegre, State
of Rio Grande do Sul, at Xxxxxxx Xxxxx Xxxxx, 0000, hereinafter "LAB", and
o MLSP - Comercio e Participacoes Ltda., a limited liability stock company,
duly organized and existing under the laws of the Federative Republic of
Brazil, with registered office at Xxx Xxxxxxx Xxxxxxx, 000/000, Xxxxxx
Higienopolis, Porto Alegre, State of Rio Grande do Sul, tax identification
No. 02.429.422/0001-02, with its articles of organization duly recorded
with the Commercial Board of the State of Rio Grande do Sul on March 24,
1998 under No. 00.000.000.000, represented herein by its managing
partners, Xxxxxxx Xxxxx Xxxxxxx, Brazilian, divorced, electrical engineer,
identification card No. RG 0000000000 SSP-RS, taxpayer identification No.
000.000.000-00, residing and domiciled in the city of Porto Alegre, State
of Rio Grande do Sul, at Xxx Xx. Xxxx, 000, apto. 202-B, and Xxxxxx
Xxxxxxxxx Xxxxxx, Brazilian, married, electrical engineer, identification
card No. RG 0000000000 SSP-RS, taxpayer identification No. 000.000.000-00,
residing and domiciled in the city of Porto Alegre, State of Rio Grande do
Sul, at Xxx Xxxxxxx Xxxxxxx, 000, apto. 601, represented herein by his
attorney-in-fact, Xxxx Xxxxxx xx Xxxxxx Xxxxxxx, Brazilian, married,
attorney, OAB/SP [Sao Paulo Bar Association] number 129.136, with offices
at Xx. Xxx Xxxxxxx, 000, xxxxx 000, 00xx Xxxxx, hereinafter referred to as
"MLSP"
and, as consenting party,
o Nutec Informatica S.A., a corporation duly organized and existing under
the laws of the Federative Republic of Brazil, with registered office in
the city of Porto Alegre, State of Rio Grande do Sul, at Xxx Xxxxxxxx,
0000, xxxxx xxxxx, Xxxxx Santa Tereza, tax identification No.
91.088.328/0001-67, represented herein by its directors, Xxxxxxx Xxxxx
Xxxxxxx and Xxxxxx Xxxx Xxxxx de Xxxxx, hereinafter referred to as
"Nutec".
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Each of the parties, hereinafter individually referred to as "Party" and jointly
referred to as "Parties", have concurred and agreed to the following:
WHEREAS:
The Parties, together with others, executed an Agreement of Shareholders of
Nutec ("Shareholder Agreement") on June 15, 1999;
The Parties were unable to reach an agreement regarding several fundamental
issues for the continuity of the association among them; and
Because of the existing discrepancies, RBS, AAM, LAB and MLSP are no longer
shareholders of Nutec, as described in the Special Shareholders Meeting of Nutec
held today;
The Parties have therefore agreed to sign this Agreement to Revoke Shareholder
Agreement, as follows:
1. The Parties resolve, by mutual agreement, to terminate this association and
revoke the Shareholder Agreement, which is legally rescinded as of today.
2. Nevertheless, RBS, AAM and LAB reiterate herein: (i) the terms and conditions
of Clause 5 (sub-items) of the Shareholder Agreement; (ii) that the
representations and warranties in Clause 2 (and the corresponding sub-items) and
Clause 3 (and the corresponding sub-items) of the Stock Subscription Agreement
executed on June 15, 1999 between the Parties ("Subscription Agreement") were
true in their entirety as of said date; (iii) the obligations assumed under the
Subscription Agreement (clause 5 and the corresponding sub-items); and (iv) all
other undertakings and obligations in other instruments or related
correspondence, signed on June 15, 1999.
2.1. MLSP hereby reiterates all of the representations in Clauses 2 and 3 (and
the corresponding sub-items) of the Subscription Agreement that are applicable;
3. Interactiva, on its own behalf and on behalf of Nutec, hereby reiterates: (i)
all of the undertakings and obligations assumed with RBS, AAM, LAB and MLSP in
clauses 4 and 5 (and the corresponding sub-items) of the Subscription Agreement;
and (ii) all other undertakings and obligations in other instruments or related
correspondence, signed on June 15, 1999.
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The parties, being in agreement, sign this instrument in 6 (six) exact copies
issued for the same purpose.
Porto Alegre, August 5, 1999
for: Telefonica Interactiva Brasil Ltda.
[signed]
Xxxxx X. Xxxxxxx
for: RBS Administracao e Cobrancas Ltda.
[signed]
Xxxxxx Xxxxxxx Sirotsky - by Ibanor Polesso
[signed]
Xxxxxx Xxxxxxx xx Xxxxx
[signed]
Luiz Xxxxxxx Xxxxxxxxxx
for: MLSP Comercio e Representacoes Ltda.
[signed]
Xxxxxxx Xxxxx Xxxxxxx/ Xxxx Xxxxxx xx Xxxxxx Xxxxxxx,
for Xxxxxx Xxxxxxxxx Xxxxxx
Consenting party: for: Nutec Informatica S.A.
[signed]
Xxxxxx Xxxx Xxxxx de Xxxxx/Xxxxxxx Xxxxx Xxxxxxx
WITNESSES:
1. [signed] Xxxxxx Xxxxxxx 2. [signed] Xxxxxxx Xxxx Xxxxx
XX 23.682.884-7 SSP/SP RG 25.865.869-7/SSP/SP
(Continuation of Agreement to Revoke Shareholder Agreement executed by
Telefonica Interactiva Brasil Ltda., RBS Administracao e Cobrancas Ltda., Xxxxxx
Xxxxxxx xx Xxxxx, Xxxx Xxxxxxx Xxxxxxxxxx and Nutec Informatica S.A. on August
5, 1999)
