Exhibit 10.15
MANDIC INTERNET LTDA.
QUOTAS PURCHASE AGREEMENT
Dated as of October 6, 1999
TABLE OF CONTENTS
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ARTICLE 1 - SALE OF INTERESTS..................................................3
1.1 - SALE OF INTERESTS..................................................3
1.2 - ASSUMPTION OF LIABILITIES..........................................3
1.3 - CLOSING DATE.......................................................3
1.4 - FILING.............................................................3
ARTICLE 2 - PURCHASE PRICE.....................................................4
2.1 - PAYMENT OF PURCHASE PRICE..........................................4
2.2 - TIMING OF PAYMENT..................................................4
2.3 - RELEASE............................................................4
ARTICLE 3 - PURCHASER'S REPRESENTATIONS AND WARRANTIES.........................4
3.1 - PURCHASER'S REPRESENTATIONS AND WARRANTIES.........................4
3.1.1 - ORGANIZATION, CORPORATE POWER AND AUTHORIZATION..................5
3.1.2 - NO VIOLATION.....................................................5
ARTICLE 4 - SELLER'S REPRESENTATIONS AND WARRANTIES............................6
4.1 - SELLER'S REPRESENTATIONS AND WARRANTIES............................6
4.1.1- ORGANIZATION, CORPORATE POWER AND AUTHORIZATION...................6
4.1.2 - NO VIOLATION.....................................................7
4.1.3 - MANDIC INTERNET CORPORATE CAPITAL................................8
4.1.4 - FINANCIAL STATEMENTS.............................................8
4.1.5 - TAXES...........................................................10
4.1.6 - LITIGATION......................................................11
4.1.7 - INSURANCE.....................................................12
4.1.8 - CONTRACTS AND COMMITMENTS.......................................12
4.1.9 - COMPLIANCE WITH LAWS............................................13
4.1.10 - LABOR RELATIONS..............................................13
4.1.11 - COMPETITION, CONSUMER AND TRADE REGULATION LAW.................15
4.1.12 - SUBSCRIBERS....................................................15
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ARTICLE 5 -- CONDITIONS TO CLOSING............................................16
5.1 - CONDITIONS OF OBLIGATIONS OF THE PURCHASER........................16
5.1.1 - REPRESENTATIONS AND WARRANTIES..................................16
5.1.2 - COMPLIANCE WITH AGREEMENT.......................................16
5.1.3 - APPROVALS.......................................................16
5.1.4 - NO INJUNCTION...................................................16
5.1.5 - NO MATERIAL ADVERSE CHANGE......................................17
5.1.6 - CERTIFICATE OF OFFICER..........................................17
5.1.7 - OPINIONS OF THE COMPANY'S COUNSEL...............................17
5.1.8 - MEMORANDUM......................................................17
5.1.9 - SUPPORTING DOCUMENTS............................................17
5.1.10 -OTHER DOCUMENTS.................................................18
5.2. - CONDITIONS OF OBLIGATIONS OF THE SELLER................................18
5.2.1 - REPRESENTATIONS AND WARRANTIES........................................18
5.2.2 - COMPLIANCE WITH AGREEMENT.............................................18
5.2.3 - APPROVALS.............................................................18
5.2.4 - NO INJUNCTION.........................................................18
5.2.5 - CERTIFICATE OF OFFICER................................................19
5.2.6 - SUPPORTING DOCUMENTS..................................................19
ARTICLE 6 - SURVIVAL OF REPRESENTATIONS AND WARRANTIES........................19
ARTICLE 7 - INDEMNIFICATION...................................................19
7.1 - SELLER INDEMNIFICATION............................................19
7.2 - PURCHASER INDEMNIFICATION.........................................20
7.3 - INDEMNIFICATION PROCEDURE.........................................21
7.4 - SURVIAL OF INDEMNIFICATION OBLIGATIONS............................22
ARTICLE 8 - CONFIDENTIALITY...................................................22
ARTICLE 9 - NOTICES...........................................................23
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ARTICLE 10 - GENERAL PROVISIONS...............................................24
10.1 - OTHER AGREEMENTS.................................................24
10.2 - SUCCESSORS AND ASSIGNS...........................................24
10.3 - JURISDICTION.....................................................25
10.4 - GOVERNING LAW....................................................24
10.5 - COUNTERPARTS.....................................................25
10.6 - ADDITIONAL DELIVERIES............................................25
10.7 - NO THIRD-PARTY BENEFICIARIES.....................................25
10.8 - ENTIRE AGREEMENT.................................................26
10.9 - HEADINGS.........................................................26
10.10 - SEVERABILITY....................................................26
10.11 - TRANSLATION.....................................................26
Exhibits
Exhibit A: Share Purchase Agreement
Exhibit B: Telecommunications Services Agreement
Exhibit C: Assumed Contracts
Exhibit D: Mandic Internet Balance Sheet
Exhibit E: Private Instrument of Amendment of the Articles of
Association
Exhibit F: Release
Exhibit G: Purchaser Disclosure Schedules
Exhibit H: Seller Disclosure Schedules
Exhibit I: Employment Agreements
Exhibit J: Insurance Policies
Exhibit K: Material Waiver or Forbearance
Exhibit L: Opinion of Company's Counsel
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QUOTAS PURCHASE AGREEMENT
QUOTAS PURCHASE AGREEMENT, dated as of this 6th day of October, 1999 (together
with the schedules and exhibits hereto, collectively, this "Agreement") is by
and between IMPSAT Comunicacoes Ltda., a Brazilian limited liability company
(the "Seller"), and O Site Entretenimentos Ltda., a Brazilian limited liability
company (the "Purchaser").
W I T N E S S E T H
WHEREAS, the Seller is controlled by IMPSAT Corporation, a corporation
duly organized and existing under the Laws of the State of Delaware, United
States of America ("IMPSAT");
WHEREAS, the Purchaser is controlled by El Sitio, Inc., a company duly
organized and existing under the Laws of the British Virgin Islands ("El
Sitio");
WHEREAS, IMPSAT and El Sitio have entered into a Framework Agreement dated
August 4, 1999 (the "Framework Agreement") in which the parties agreed on the
basic terms and conditions of a series of related agreements to be entered into
in connection with the sale of IMPSAT's retail Internet access business to El
Sitio;
WHEREAS, IMPSAT and El Sitio have entered into a Share Purchase Agreement
dated the date hereof (the "Share Purchase Agreement") substantially in the form
attached as Exhibit A, whereby IMPSAT shall purchase 1,756,677 shares of Class A
Preferred Shares ("Preferred Shares") of El Sitio for US$12,300,000 on the date
hereof and whereby IMPSAT has committed to purchase an additional 1,313,938
Preferred Shares for US$9,200,000;
WHEREAS, in conjunction with this Agreement, and in accordance with the
Framework Agreement dated August 4, 1999, by and between IMPSAT and El Sitio,
Seller and Purchaser shall concurrently herewith enter into a Telecommunications
Services Agreement substantially in the form attached hereto as Exhibit B,
whereby the Seller will provide and the Purchaser will purchase
telecommunications services related to the Purchaser's Internet access
requirements for the Acquired Business (as defined herein) of the Seller;
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WHEREAS, IMPSAT had direct or indirect stock participation in the
following companies: (i) Jungfrau Participacoes Ltda., a limited liability
company duly organized and existing under the laws of the Federative Republic of
Brazil ("Jungfrau"); (ii) Sfspv Empreendimentos e Participacoes Ltda., a limited
liability company duly organized and existing under the laws of the Federative
Republic of Brazil; (iii) Xxxxxx.Xxx Ltda., a limited liability company duly
organized and existing under the laws of the Federative Republic of Brazil
("Xxxxxx.Xxx"); and (iv) Mandic Internet Ltda., a Brazilian limited liability
company ("Mandic Internet");
WHEREAS, IMPSAT has completed a corporate restructuring in the group
of companies that it holds in Brazil, specifically; (i) the closing of Jungfrau
and Sfspv joint stock capital; (ii) the change of Jungfrau, Sfspv and Xxxxxx.Xxx
corporate type; (iii) spin-off of Xxxxxx.Xxx, with conversion of part of its
assets into Mandic Internet; and (iv) merger of Jungfrau, Sfspv and Xxxxxx.Xxx
into the Seller (the "Restructuring");
WHEREAS, IMPSAT, under the Restructuring described above has transferred
to Mandic Internet all of its rights and interests in, including the
exploitation of, the retail "Dial Up" access business in Brazil, including the
contracts (the "Assumed Contracts") set forth on Exhibit C, as well as tangible
and intangible assets listed in the Appraisal Report and Balance Sheet as of
August 31, 1999 (the "Mandic Internet Balance Sheet"), attached hereto as
Exhibit D (collectively, the "Acquired Business");
WHEREAS, the Restructuring having been completed, the Seller wishes to
sell all Quotas representing 99.9% of the total corporate capital of Mandic
Internet (the "Interests") to the Purchaser, with all rights and obligations
they represent;
WHEREAS, the Purchaser wishes to acquire from the Seller the Interests;
WHEREAS, the Interests of Mandic Internet are and will remain paid-in,
free and clear of any commitments, agreements, rights, demands, encumbrances,
pledge, doubts, debts or liens of any kind, not having any judicial claims,
administrative procedure and/or debt which may affect the free transfer of the
Interests from the Seller to the Purchaser;
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NOW, THEREFORE, in consideration of the promises and mutual covenants and
agreements hereinafter contained, the receipt and sufficiency of which is hereby
mutually acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1 - SALE OF INTERESTS
1.1 - Sale of Interests.
Subject to the terms and conditions of this Agreement, the Seller agrees
to sell to the Purchaser, and the Purchaser shall purchase from the Seller, the
Interests on the date hereof.
1.2 - Assumption of Liabilities.
Purchaser shall not assume any liabilities of Seller or the Acquired
Business of any nature whatsoever arising prior to the date hereof except those
reflected in the Mandic Internet Balance Sheet and by the Assumed Contracts.
1.3 - Closing Date.
The transfer of the Interests (the "Closing") shall take place on the date
hereof and upon execution of the Private Instrument of Amendment of the Articles
of Association in the form attached as Exhibit E. The date on which the Closing
is held is referred to in this Agreement as the "Closing Date".
1.4 - Filing.
The Seller undertakes to file the Private Instrument of Amendment of the
Articles of Association within 30 days of the Closing Date.
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ARTICLE 2 - PURCHASE PRICE
2.1 - Payment of Purchase Price.
In consideration of the purchase of the Interests, the Purchaser shall pay
to the Seller on the date hereof, by wire transfer of immediately available
funds to Seller's Account No. 33.847.3000-1, Beneficiary: Impsat Comunicacoes
Ltda. at the Banco Sudameris, Agencia 0726 - Paulista, the total and agreed
price of R$24,066,180 (the "Purchase Price").
2.2 - Timing of Payment.
The Purchase Price will be paid by the Purchaser to the Seller
concomitantly with the execution of the Private Instrument of Amendment to the
Articles of Association of Mandic Internet, reflecting the transfer of the
Interests.
2.3 - Release.
The Seller will give to the Purchaser upon the payment of the Purchase
Price, the most full, irreducible, general, irrevocable and irreversible release
in relation to the Purchase Price, waiving all further claims anyway or in any
pretext, in the form attached as Exhibit F.
ARTICLE 3 - PURCHASER'S REPRESENTATIONS AND WARRANTIES
3.1 - Purchaser's Representations and Warranties.
The Purchaser hereby represents and warrants to the Seller that, except as
set forth in the disclosure schedules of Purchaser attached hereto as Exhibit G
(the "Purchaser Disclosure Schedules"):
3.1.1 - Organization, Corporate Power and Authorization.
The Purchaser is a corporation duly organized, validly existing and
in good standing under applicable law. The Purchaser has full corporate power
and authority to enter into this Agreement, to perform its obligations under
this
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Agreement and to consummate the transactions contemplated hereby. The execution,
delivery and performance of this Agreement and the consummation of the
transaction contemplated by it have been duly and validly authorized by all the
necessary corporate or other actions on the part of Purchaser. This Agreement
has been duly executed by and on behalf of Purchaser and is a valid and binding
obligation of the Purchaser and is enforceable in accordance with its terms
except to the extent that the enforceability may be limited by applicable
bankruptcy, insolvency, concordata, moratorium and other laws relating to or
affecting creditor's rights generally or in equitable principles.
3.1.2 - No Violation.
(a) The execution and delivery of this Agreement by the Purchaser,
the performance of its obligations hereunder and the consummation of the
transactions contemplated hereby do not and will not violate, contravene,
breach or result in any default under any indenture, mortgage, lease,
agreement or other instrument or any statute, regulation, ordinance,
judgment, decree or law to which the Purchaser is party or is subject or
bound to and will not, with or without the given of notice or the passage
of time, conflict with or result in any of the terms or conditions of, or
constitute a default under, the Articles of Association or other governing
documents of the Purchaser.
(b) Except as provided in this Agreement, there are no consents,
approvals, authorizations or orders, governmental or otherwise, necessary
for the execution, delivery and performance of this Agreement by the
Purchaser and the transactions contemplated hereby or to ensure the
legality, validity, enforceability or admissibility in the Federative
Republic of Brazil.
ARTICLE 4 - SELLER'S REPRESENTATIONS AND WARRANTIES
4.1 - Seller's Representations and Warranties.
The Seller hereby represents and warrants to the Purchaser, except as set
forth in the disclosure schedules of Seller attached hereto as Exhibit H (the
"Seller Disclosure Schedules"):
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4.1.1- Organization, Corporate Power and Authorization.
(a) The Seller is a corporation duly organized, validly existing and
in good standing under applicable law. The Seller has full corporate power
and authority to enter into this Agreement, to perform its obligations
under this Agreement and to consummate the transactions contemplated
hereby. The execution, delivery and performance of this Agreement and the
consummation of the transaction contemplated by it have been duly and
validly authorized by all the necessary corporate or other actions on the
part of the Seller. This Agreement has been duly executed by and on behalf
of the Seller and is a valid and binding obligation of the Seller and is
enforceable in accordance with its terms except to the extent that the
enforceability may be limited by applicable bankruptcy, insolvency,
concordata, moratorium and other laws relating to or affecting creditor's
rights generally or in equitable principles.
(b) Mandic Internet has been duly incorporated and is validly
existing and in good standing and has all requisite corporate and other
power and authority to carry on its business as currently conducted and to
own, lease, use and operate its assets at the places currently located and
in the manner currently used and operated; and is duly qualified to carry
out business and is in good standing, in each jurisdiction in which the
assets owned, leased, used or operated by it or the nature of the business
conducted by it require it to be so qualified. The assets owned by and the
Quotas of Mandic Internet are not subject to any liens.
(c) True and complete copies of the Articles of Association and
other organizational documents of Mandic Internet, as amended to and
including the date hereof, have been delivered to the Purchaser.
(d) There is no agreement, warrant or option existing pursuant to
which Mandic Internet is or may be required to provide participation in
its capital.
4.1.2 - No Violation.
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(a) The execution and delivery of this Agreement by the Seller, the
performance of its obligations hereunder and the consummation of the
transactions contemplated hereby do not and will not violate, contravene,
breach or result in any default under any indenture, mortgage, lease,
agreement or other instrument, or any statute, regulation, ordinance,
judgment, decree or law to which the Seller is party or is subject or
bound to and will not, with or without the giving of notice or the passage
of time, conflict with or result in any breach of any of the terms or
conditions of, or constitute a default under, the Articles of Association
or other governing documents of the Seller.
(b) Mandic Internet is not a party to, or bound by or subject to any
indenture, mortgage, lease, agreement, instrument, charter or Articles of
Association provision, or subject to any statute, regulation, judgment or
decree which as a result of the execution of this Agreement, would result
in the creation or imposition of any encumbrance or lien, or give to
others, any interest or rights (including, without limitations rights to
termination or cancellation) in, or with respect to the Interests or give
rise to any right of termination, cancellation or acceleration of any
right or obligation or any benefit to which Mandic Internet or to a loss
of any benefit to which Mandic Internet is entitled.
(c) Except as provided in this Agreement, there are no filings,
registrations, consents, approvals, authorizations or orders, governmental
or otherwise, necessary for the execution, delivery and performance of
this Agreement by the Seller and the transactions contemplated hereby or
to ensure the legality, validity, enforceability or admissibility in the
Federative Republic of Brazil of this Agreement.
4.1.3 - Mandic Internet Corporate Capital.
(a) As of the date hereof, the corporate capital of Mandic Internet
is of R$108,775.00 divided into 108,775 Quotas with par value of R$1.00
each, all of which are authorized, outstanding and are validly existing.
(b) The Seller is the sole owner of all Interests having good and
valid title thereof. The Interests are duly and validly authorized and
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outstanding, fully paid and non-assessable, free and clear of any lien,
encumbrance, pledge or claim whatsoever.
(c) Since the other Quota holder (representing .01% of the capital)
of Mandic Internet has agreed separately to transfer its interests to
Purchaser, the transfer of the Interests is not subject to any pre-emptive
right or rights or first refusal or other rights of a similar nature in
favor of any quotaholder of Mandic Internet under its Articles of
Association or pursuant to any agreement or instrument to which Mandic
Internet or the Seller is a party.
4.1.4 - Financial Statements.
(a) The Mandic Internet Balance Sheet attached hereto as Exhibit D:
(i) is in accordance with the books and the records of Mandic Internet and
has been prepared in accordance with Brazilian generally accepted
accounting principles (the Brazilian GAAP) and (ii) presents fairly, in
all material respects, the consolidated financial position and the results
of operations, changes in quotaholders equity and cash flows of Mandic
Internet as of the dates and for the periods indicated, in accordance with
Brazilian GAAP applied on a basis consistent with prior periods.
(b) Since the date of the Mandic Internet Balance Sheet, there has
not been:
(i) any material adverse change, financial or otherwise, in
the business prospects, operations, assets, liabilities
(actual or contingent), earnings or other condition of
Mandic Internet; or
(ii) any change in the authorized or actual capitalization of
Mandic Internet.
(c) Except as reflected in the Mandic Internet Balance Sheet, Mandic
Internet has not:
(i) incurred or assumed any material liabilities,
obligations or indebtedness (whether direct or
indirect), actual or contingent, other than current
liabilities, obligations or
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indebtedness for operating expenses incurred in the
ordinary course of business consistent with good
practice;
(ii) entered into, or committed to enter into, any material
transaction, contract or agreement, whether written or
oral other than in the ordinary course of business
consistent with good practice;
(iii) acquired, subjected to any lien or disposed of or
committed to acquire, subject to any lien or dispose of
any material assets other than in the ordinary course of
business consistent with good practice; or
(iv) canceled or waived any debt, claim or other right.
(d) With respect to any assets belonging to Mandic Internet there is
no contravention of any statute, ordinance, rule or regulation of any duly
constituted authority having jurisdiction, arising from the tenancy,
occupancy or use thereof or the location, size, configuration, state of
repair, design or construction of or defects in the said assets, or on
account of the materials of which it is built or the quantity,
concentration or type of emission, deposit, issuance, or discharge from
any part of the said assets or otherwise in connection of the same. There
is no order or judgment by any authority having jurisdiction requiring any
work or expenditure of money in respect of such assets, nor is there any
pending or threatened expropriation procedure affecting the same. The
assets are usable and in sound condition, operation and repair, subject to
reasonable wear and tear and obsolescence.
(e) Mandic Internet has acquired, and currently holds all permits,
licenses, consents, concessions, authorizations, approvals, privileged
waivers, exemptions, orders, certificates, rulings, agreements and other
concessions granted by or entered into with any governmental or regulatory
authority required in connection with its assets and business, and all of
the foregoing are in good standing and are being complied with in all
material respects.
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(f) The bookkeeping and accounting records of Mandic Internet are
complete and accurate in all material respects, have been maintained on a
consistent basis and fairly reflect the financial transactions of Mandic
Internet.
(g) As of the date hereof, Mandic Internet has no liability or
obligation of any nature whatsoever (whether absolute, accrued,
contingent, asserted, unasserted or other), and there has not been any
aspect of the prior or current conduct of the business or affairs of
Mandic Internet which could form the basis for any claims by any third
party which, if asserted, could result in any such liability or
obligation, which is not fully reflected or reserved against on the
Financial Statements of Mandic Internet as at August 31, 1999.
4.1.5 - Taxes.
Mandic Internet has duly complied with all the administrative
proceeding before tax authorities. All the information and documents
conveyed by Mandic Internet to the tax authorities are true, correct and
complete and present fairly and accurately the information required to be
shown therein. Mandic Internet has paid all taxes payable by it to all
taxing authorities. There are no pending or threatened claims, liens,
investigation for tax deficiencies, penalties or interest asserted Mandic
Internet by any taxing authority. There are no agreements or waivers
extending the time for the assessment of any tax or tax deficiency against
Mandic Internet. The accrual for taxes reflected in the Financial
Statements is, in the aggregate, adequate to cover any and all national or
foreign tax liabilities (whether or not disputed) of Mandic Internet for
the period covered by such Financial Statements, and for all tax
liabilities arising out of transactions entered into or states of fact
existing prior thereto.
4.1.6 - Litigation.
(a) Mandic Internet has not received any notification that:
(i) any process utilized, any product produced or any
service provided by it or the conduct of its business
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infringes any patent, trade xxxx, trade name, trade
secret, know-how or technology owned or used by another
or is the subject of any pending or threatened
proceedings or outstanding court order;
(ii) there is any investigation by any administrative
authority or judicial body that would adversely affect
its business or any product, apparatus, method or design
of Mandic Internet.
(b) Mandic Internet has not been informed or received any
notification of any action, proceeding, demand, claim or investigation
pending or threatened by or before any court or administrative agency in
which an adverse determination might adversely and materially affect
Mandic Internet or a material portion of any of licenses or assets or
rights or that questions the validity of this Agreement or seeks to
restrain or enjoin the consummation of the transactions contemplated by
this Agreement. Neither Mandic Internet nor any of its assets are party to
any agreement or subject to any corporate restriction or any judgment,
order, writ, injunction, decree, rule or regulation that materially and
adversely affect the conduct of its business and operations. Mandic
Internet has not received any notification of any judgment, order or
decree enforceable against or in respect of Mandic Internet, or its
business which involves or may involve, or restricts or may restrict, or
requires or may require, the expenditure of money.
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4.1.7 - Insurance.
Mandic Internet has obtained all insurance policies that relate in
any way to the ownership, use or operation of its assets. Such policies
are each outstanding and in full force and effect and are valid and
enforceable in accordance with their terms, have been entered into, to
knowledge of Mandic Internet, with financially sound and reputable
insurance companies and insure all material assets of Mandic Internet
against loss and damage to the extent and in the manner reasonably
customary and prudent for companies engaged in similar businesses or
required by any of the licenses. All premiums with respect such insurance
policies required to be paid thereunder have been paid and no notice of
cancellation or termination has been received with respect to any such
policy.
4.1.8 - Contracts and Commitments
(a) The Assumed Contracts constitute all of the material contracts,
arrangements and understandings, written or oral, express or implied, to
which Mandic Internet is a party, or to or by which it or its assets are,
or may be subject, bound or affected. All such Assumed Contracts having
been transferred to Mandic Internet by Xxxxxx.Xxx pursuant to the
Restructuring, and all such Assumed Contracts are in good standing, valid
and effective, current in payments, with no breach, violation, default,
notice or claim of breach by any party thereto, except for such breaches,
violations, defaults, notices of claims of breach that, individually and
in the aggregate, would not be material to Mandic Internet, and no event
has occurred which with notice or lapse of time, or both, constitute a
breach, violation or default by any party thereto. Contracts relating to
employment or consulting are listed in Exhibit I hereto and policies
relating to insurance are listed in Exhibit J hereto.
(b) The Seller has delivered to the Purchaser true and complete
copies of all written contracts and true and complete memoranda describing
the terms of all oral contracts listed in Exhibit C hereto, together with
a complete and correct copy or description, as the case may be, of all
amendments thereto. All material liabilities and obligations under such
contracts can be ascertained from such copies or memoranda. Each contract
is valid, in full force and effect, binding and enforceable by
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Mandic Internet thereto in accordance with its respective terms. Mandic
Internet has complied in all material respects with the terms of all
contracts, including, but not limited to, all such terms requiring the
filing of statements (financial or otherwise) and the payment of any
amounts and are not in default under any contract, except for defaults
that, individually and in the aggregate, would not be material to Mandic
Internet. Except as set forth on Exhibit K hereto, Mandic Internet has not
granted or been granted any material waiver or forbearance with respect to
any of the contracts. To the knowledge of the Seller or Mandic Internet,
no other contracting party is in material default under any of the
contracts.
(c) There is no agreement, option or other right or privilege
outstanding in favor of any person for the purchase from Mandic Internet
of its business or any of its assets, other than sales in the ordinary
course of business.
(d) There is no agreement signed by Mandic Internet or its
interestholders which may affect its activities, restraining or imposing
conditions to the development of its business.
4.1.9 - Compliance with Laws.
Mandic Internet has complied in all material respects with all
statutes, ordinances, codes, laws, rules, regulations or orders in respect
of the conduct of its business and ownership, possession, maintenance and
operation of its properties.
4.1.10 - Labor Relations.
(a) The Seller has delivered to the Purchaser a complete list of
employees of Mandic Internet as well as each such employee's date of hire,
current compensation, including salary, bonuses, commissions and other
benefits of any kind and participation in each of any benefit plan. A
true, correct and complete copy of the employee work book (Livro de
Registro de Empregados) has been delivered to the Purchaser as well as a
true, correct and complete copy of each written employment contract and a
description of each oral employment agreement.
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(b) Mandic Internet is in compliance with each of its obligations
under all statutes, rules, regulations, executive orders, judgements,
orders, decrees and agreements governing its employment practices and the
employment relationships with its employees.
(c) Mandic Internet has been complying with the provisions of the
collective bargaining relationship applicable to Mandic Internet's
employees. No employees of Mandic Internet have made a demand for
recognition of a labor organization or group or filed a petition with
Mandic Internet demanding such representation, nor does Mandic Internet
and/or the Seller has knowledge of any employee attempting to organize a
labor organization or group; and there is no labor strike pending or
threatened and no labor dispute(s) exists between Mandic Internet and any
labor organization or employee of Mandic Internet.
(d) There is no material: (i) pending or threatened, administrative
or judicial, unfair labor practice charges and/or discrimination charges,
and/or pending or threatened employment related litigation including
judicial, administrative and/or employment grievance proceedings and/or
arbitrations, related to any employee of Mandic Internet or any third
party; (ii) claims, pending or threatened, by any governmental agency,
labor organization, past or present employee or consultant alleging Mandic
Internet has violated any applicable statute, law (administrative and
judicial), executive order, rule, regulation, judgement, order, decree or
agreement, regarding Mandic Internet's employment practices; (iii) pending
or threatened unfair employment practice charges, judicial or
administrative proceedings and/or employment grievance and/or arbitrations
against Mandic Internet regarding its employment practices; and (iv)
present or former employee(s) of Mandic Internet who have any claims
against the Mandic Internet (whether under federal, provincial, state,
local or foreign law) under any employment agreement(s), or otherwise, on
account of or for (A) overtime pay, other than overtime pay for the
current payroll period, (B) wages or salary (excluding amounts accruing
under the Plans) for any period other than the current payroll period, (C)
vacation or time off (or pay in lieu thereof), other than that earned in
regard to the current fiscal or calendar year, or
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(D) any violation of any law, statute, rule or regulation relating to
minimum wages or maximum hours of work.
(e) The employment by Mandic Internet of any person (whether or not
there is a written employment agreement) may be terminated for any reason
whatsoever not inconsistent with current law, without penalty or liability
of any kind other than accrued vacation pay and all legal severance
obligations.
(f) Mandic Internet has never had any pension, profit sharing or
similar benefit plans.
4.1.11 - Competition, Consumer and Trade Regulation Law
(a) Mandic Internet is not a party to or is concerned in any
agreement or arrangement or is conducting or has conducted itself (whether
by omission or otherwise) in a manner which:
(i) infringes any anti-trust and consumer or similar
legislation in Brazil; and
(ii) is registrable, unenforceable or void or renders that
Mandic Internet liable to civil, criminal or
administrative proceedings by virtue of any anti-trust,
consumer or similar legislation.
(b) Mandic Internet has given an undertaking to, or is subject to
any order of or investigation by, or has received any request for
information from, any court or governmental regulatory authority,
including but not limited to any national competition authority under any
anti-trust, consumer or similar legislation.
4.1.12 - Subscribers
As of the date of the Mandic Internet Balance Sheet,
Mandic Internet had agreements with the number of paying subscribers for
receipt of dial-up access services identified in the audit report of
Deloitte & Touche attached as Exhibit D.
16
ARTICLE 5 -- CONDITIONS TO CLOSING
5.1 - Conditions of Obligations of the Purchaser.
The obligation of the Purchaser to purchase and pay for the Quotas which
it has agreed to purchase on the date hereof is subject to the fulfillment in
all material respects prior to the date hereof of the following conditions, any
of which may be waived in whole or in part by the Purchaser:
5.1.1 - Representations and Warranties.
The representations and warranties of the Seller under this
Agreement shall be true and correct in all material respects on the date
hereof.
5.1.2 - Compliance with Agreement.
The Seller shall have performed and complied with all agreements and
conditions required by this Agreement to be performed or complied with by
the Seller on or before the Closing Date.
5.1.3 - Approvals.
The Seller shall have obtained any and all consents, waivers,
approvals or authorizations, with or by any governmental body or any other
person required for the valid execution of this Agreement and the
transactions contemplated hereby.
5.1.4 - No Injunction.
No governmental body or any other person shall have issued an order
which shall then be in effect restraining or prohibiting the completion of
the transactions contemplated hereby, nor shall any such order be
threatened or pending.
17
5.1.5 - No Material Adverse Change.
Since July 31, 1999, there shall not have been a Material Adverse
Change. "Material Adverse Change" means any event, circumstance,
condition, fact, effect or other matter which has had or could reasonably
be expected to have a material adverse effect (i) on the business, assets,
liabilities, prospects, properties, results of operations or condition
(financial or otherwise) of the Acquired Business or (ii) on the ability
of the Seller and such subsidiaries to perform on a timely basis any
material obligation under this Agreement or to consummate the transactions
contemplated hereby.
5.1.6 - Certificate of Officer.
The Seller shall have delivered to the Purchaser a certificate dated
the Closing Date, executed by its Chief Executive Officer, certifying the
satisfaction of the conditions specified in paragraphs 5.1.1, 5.1.2,
5.1.3, 5.1.4 and 5.1.5
5.1.7 - Opinions of the Company's Counsel.
The Purchaser shall have received from Xxxxxxxx Xxxx Advogados,
counsel for the Seller, an opinion dated the date of the Closing, in the
form attached as Exhibit L.
5.1.8 - Memorandum.
The Articles of Association shall be in full force as of the date
hereof under the laws of the Brazil and shall not have been amended or
modified, and a certified copy of the and Articles of Association shall
have been delivered to counsel for the Purchaser.
5.1.9 - Supporting Documents.
The Purchaser shall have received the Seller Disclosure Schedules.
18
5.1.10 - Other Documents.
The parties have executed the Share Purchase Agreement, and the
Telecommunications Services Agreement, and any document contemplated by
the foregoing agreements.
5.2 - Conditions of Obligations of the Seller.
The obligation of the Seller hereinunder is subject to the
fulfillment in all material respects prior to the date hereof of the following
conditions, any of which may be waived in whole or in part by the Seller:
5.2.1 - Representations and Warranties.
The representations and warranties of the Purchaser under this
Agreement shall be true and correct in all material respects on the date
hereof.
5.2.2 - Compliance with Agreement.
The Purchaser shall have performed and complied with all agreements
and conditions required by this Agreement to be performed or complied with
by the Purchaser on or before the Closing Date.
5.2.3 - Approvals.
The Purchaser shall have obtained any and all consents, waivers,
approvals or authorizations, with or by any governmental body or any other
person required for the valid execution of this Agreement and the
transactions contemplated hereby.
5.2.4 - No Injunction.
No governmental body or any other person shall have issued an order
which shall then be in effect restraining or prohibiting the completion of
the transactions contemplated hereby, nor shall any such order be
threatened or pending.
19
5.2.5 - Certificate of Officer.
The Purchaser shall have delivered to the Seller a certificate dated
the Closing Date, certifying the satisfaction of the conditions specified
in paragraphs 5.2.1, 5.2.2, 5.2.3 and 5.2.4.
5.2.6 - Supporting Documents.
The Seller shall have received the Purchaser Disclosure Schedules.
ARTICLE 6 - Survival of Representations and Warranties
The representations and warranties made by the Seller shall survive the
execution and delivery of this Agreement and the completion of the transactions
contemplated herein.
ARTICLE 7 - INDEMNIFICATION
7.1 - Seller Indemnification.
The Seller, shall indemnify and hold harmless the Purchaser and/or
each of its directors, officers, agents, employees, advisers and representatives
from and against any losses, expenses, claims damages or liabilities of whatever
nature, joint or several, including without limitation reasonable costs of
investigation and reasonable legal fees and expenses of legal counsel to which
the Purchaser and/or each of its directors, officers, agents, employees,
advisers and representatives may become subject, which arise out of or are based
upon:
(a) any representation or warranty of the Seller made herein not
having been materially true, complete and accurate when made;
(b) any covenant made herein by the Seller not having been complied
with;
20
(c) any liability for taxes including related liabilities,
penalties, fines, additions and interest in respect of any taxable period
ending on or prior to this date;
(d) any liability for labor claims filed after this date but related
to the working period prior to the date of signature of this Agreement, by
ex-employees of Xxxxxx.Xxx or by the employees that were transferred from
Xxxxxx.Xxx to Mandic Internet, as a result of the spin-off of Xxxxxx.Xxx;
(e) any liability or obligation of Xxxxxx.Xxx or any other affiliate
of IMPSAT, which was not transferred to Mandic Internet in view of the
spin-off of Xxxxxx.Xxx;
(f) any liability or obligation arising out of the tangible and
intangible assets transferred to Mandic Internet, as a result of the
spin-off of Xxxxxx.Xxx;
(g) any liability or obligation attributed by Mandic Internet's
clients, for services rendered before the signature of this Agreement;
(h) any liability or obligation attributed to the relevant parties
of the Contracts signed by and transferred to Mandic Internet, related to
the period prior to this Agreement; and
(i) Any liability or obligation arising from non-compliance of the
obligations assumed by Xxxxxx.Xxx under Section 4.1.8 of this Agreement.
Seller's obligations to indemnify for Purchaser's losses under this
agreement shall accrue only if the aggregate amount of such losses exceeds one
percent of the Purchase Price, and then Seller shall be liable for all such
losses, including such initial one percent amount.
21
7.2 - Purchaser Indemnification.
The Purchaser shall indemnify and hold harmless the Seller and each of its
directors, officers, agents, employees, advisers and representatives from and
against any losses, expenses, claims, damages or liabilities, joint or several,
including without limitation reasonable costs of investigation and reasonable
legal fees and expenses of legal counsel to which the Seller and/or each of its
directors, officers, agents, employees, advisers and representatives may become
subject, which arise out of or are based upon:
(a) any representation or warranty of the Purchaser made herein not having
been materially true, complete and accurate when made, or
(b) any covenant made herein by the Purchaser not having been complied
with.
Purchaser's obligations to indemnify for Seller's losses under this
Agreement shall accrue only if the aggregate amount of such losses exceeds one
percent of the Purchase Price, and then Purchaser shall be liable for all such
losses, including such initial one percent amount.
7.3 - Indemnification Procedure.
In the case of any claim asserted by a third party against a party
entitled to indemnification under this Agreement (the "Indemnified Party"),
notice shall be given by the Indemnified Party to the indemnifying party (the
"Indemnitor") promptly after such Indemnified Party has actual knowledge of any
claim as to which indemnity may be sought, and the Indemnified Party shall
permit the Indemnitor (at Indemnitor's expense) to assume the defense of any
claim or any litigation resulting therefrom, provided that (i) the counsel for
the Indemnitor who shall conduct the defense of such claim or litigation shall
be reasonably satisfactory to the Indemnified Party, (ii) the Indemnified Party
may participate in such defense at such Indemnified Party's expense, and (iii)
the omission by any Indemnified Party to give notice as provided herein shall
not relieve the Indemnitor of its indemnification obligation under this
Agreement except to the extent that such omission results in a failure of actual
notice to the Indemnitor and the Indemnitor is materially damaged as a result of
such failure to give notice. Except with the prior written consent of the
Indemnified Party, the Indemnitor, in the defense of any such claim or
litigation, shall not consent to
22
entry of any judgment or order, interim or otherwise, or enter into any
settlement that provides for injunctive or other nonmonetary relief affecting
the Indemnified Party or that does not include as an unconditional term thereof
the giving by each claimant or plaintiff to such Indemnified Party of a release
from all liability with respect to such claim or litigation. In the event that
the Indemnified Party shall in good faith determine that the conduct of the
defense of any claim subject to indemnification hereunder or any proposed
settlement of any such claim by the Indemnitor might be expected to affect
adversely the Indemnified Party's tax liability or the ability of the
Indemnified Party or any of its subsidiaries to conduct its business, or that
the Indemnified Party may have available to it one or more defenses or
counterclaims that are inconsistent with one or more of those that may be
available to the Indemnitor in respect of such claim or any litigation relating
thereto, the Indemnified Party shall have the right at all times to take over
and assume control over the defense, settlement, negotiations or litigation
relating to any such claim at the sole cost of the Indemnitor, provided that if
the Indemnified Party does so take over and assume control, the Indemnified
Party shall not settle such claim or litigation without the written consent of
the Indemnitor, such consent not to be unreasonably withheld. In the event that
the Indemnitor does not accept the defense of any matter as above provided, the
Indemnified Party shall have the full right to defend against any such claim or
demand and shall be entitled to settle or agree to pay in full such claim or
demand. Notwithstanding the foregoing, the Indemnitor shall still provide
indemnification to the Indemnified Party. In any event, the Indemnitor and the
Indemnified Party shall cooperate in the defense of any claim or litigation
subject to this Section 7.3 and the records of each shall be available to the
other with respect to such defense.
7.4 - Survival of Indemnification Obligations.
The obligations of the parties under this Article shall survive the
execution and delivery of this Agreement for a period of not less than five (5)
years.
ARTICLE 8 - CONFIDENTIALITY
No party, without the consent of the other party, disclose to any third
party the existence of this Agreement, its contents or any other confidential
information to which it had knowledge as a result of this Agreement, except as
and strictly to the extent by any law, rule or regulation or judicial process.
23
ARTICLE 9 - NOTICES
All notices and other communications provided for hereunder shall be in
writing (including telecopier, telegraphic, telex and e-mail communications) and
mailed, telecopied, telegraphed telexed or delivered.
If to the Purchaser:
Xxx Xxxxxx Xxxxx xxx Xxxxxx, 00, 1(degree) andar, conjunto 12
Brooklin, Sao Paulo, SP
CEP:
Telefax: 55 11 5505 7665
Attn.: Xxxxxx Xxxxx Aranha
with a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telefax: 000-000-0000
Attn.: Xxxx X. Xxxxxx
Xxxx X. Xxxxxxxx
And to:
Xxxxx, Xxxxxx e Advogados
Xxxxxxx Xxxxxxxx 0000
00xx & 00xx Xxxxx
00000-000, Xxx Xxxxx, Xxxxxx
Telefax: 00-00-000-0000
Attn.: Xxxxxx Xxxxxxx Xxxxxx
If to the Seller:
Av. Eng. Xxxx Xxxxxx Xxxxxxx, 550, 10(degree) andar (parte) e 11(degree) andar
Brooklin Novo, Sao Paulo, SP
CEP:
24
Tel.: 00 00 0000 0000
Fax: 00 00 0000 0000
Attn.: Xxxxxx Xxxxxxx Hourquescos
Xxxxxx Xxxxxx Xxxxxxx
with a copy to:
Xxxxxxxx Neto - Advogados
Xxx Xxx Xxxxx, 000
0xx Xxxxx
00000-000, Xxx Xxxxx, Xxxxxx
Telefax: 00-00-000-0000
Attn: Xxxxxxxx X. xx Xxxxxxx Xxxxx
All notices are effective upon receipt or upon refusal if properly
delivered.
ARTICLE 10 - GENERAL PROVISIONS
10.1 - Other Agreements.
The Seller and the Purchaser agree to execute and deliver such other
documents or agreements as may be necessary or desirable for the implementation
of this Agreement and the consummation of the transactions contemplated hereby.
10.2 - Successors and Assigns.
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns. This Agreement shall
not be assignable or otherwise transferable by any party hereto without the
prior written consent of the other parties hereto, and any purported assignment
or other transfer without such consent shall be void and unenforceable;
provided, that the Purchaser may assign this Agreement to any affiliate of such
Purchaser, but any such assignment shall not relieve the Purchaser of its
obligations hereunder.
25
10.3 - Jurisdiction.
The parties hereto hereby irrevocably submit to the exclusive jurisdiction
of the courts of the City of Sao Paulo, State of Sao Paulo, Brazil, as the
competent courts to decide any questions or dispute which might arise under this
Agreement or of any of the transactions contemplated hereby.
10.4 - Governing Law.
The construction and performance of this Agreement shall be governed by
the laws of the Federative Republic of Brazil.
10.5 - Counterparts.
This Agreement may be executed in one or more counterparts, each of which
will be deemed an original and all of which together will constitute one and the
same instrument.
10.6 - Additional Deliveries.
The Seller shall at any time and from time to time within one year after
the Closing execute and deliver to the Purchaser such additional instruments,
documents, conveyances or assurances and take such other actions as shall be
necessary, or otherwise be reasonably requested by the Purchaser, to confirm and
assure the rights and obligations provided for in this Agreement and render
effective the consummation of the transactions contemplated hereby, or otherwise
to carry out the intent and purposes of this Agreement.
10.7 - No Third-Party Beneficiaries.
Nothing in this Agreement shall confer any rights upon any individual,
corporation or other entity or organization other than the parties hereto and
their respective heirs, successors and permitted assigns.
10.8 - Entire Agreement.
This Agreement and the Exhibits and Annexes hereto embody the entire
agreement and understanding of the parties hereto and supersede any and all
26
prior agreements, arrangements and understandings relating to the matters
provided for herein. No amendment, waiver of compliance with any provision or
condition hereof or consent pursuant to this Agreement shall be effective unless
evidenced by an instrument in writing signed by the party against whom
enforcement of any amendment, waiver or consent is sought.
10.9 - Headings.
The headings set forth in this Agreement are for convenience only and will
not control or affect the meaning or construction of the provisions of this
Agreement.
10.10 - Severability.
If any provision, including any phrase, sentence, clause, section or
subsection, of this Agreement is invalid, inoperative or unenforceable for any
reason, such circumstances shall not have the effect of rendering such provision
in question invalid, inoperative or unenforceable in any other case or
circumstance, or of rendering any other provision herein contained invalid,
inoperative, or unenforceable to any extent whatsoever.
10.11 - Translation.
This Agreement shall only be executed in the English version, but a
Portuguese translation in a form satisfactory to Seller and Purchaser shall be
prepared immediately after its signature.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties sign and execute this instrument in equal
form and content 2 (two) copies, for one effect, together with two witnesses in
all present.
Sao Paulo, October 6, 1999
IMPSAT COMUNICACOES LTDA.
/s/ Xxxxxx Xxxxxxxx Hourquescos
----------------------------------------
Name: XXXXXX XXXXXXXX HOURQUESCOS
Title: DIRECTOR
/s/ Xxxxxx Xxxxxx Xxxxxxx
----------------------------------------
Name: XXXXXX XXXXXX XXXXXXX
Title: DIRECTOR
O SITE ENTRETENIMENTOS LTDA.
/s/ Xxxxxx Xxxxx Aranha
----------------------------------------
Name: XXXXXX XXXXX ARANHA
Title: DIRETOR-PRESIDENTE
Witnesses:
/s/ Xxxxxxxx Xxxxxx Da Xxxxx Xxxxxx /s/ Xxx Xxxxxxx Xxxxxx Xx Xxxxxxxx
------------------------------------- ---------------------------------------
Name: Xxxxxxxx Xxxxxx Da Xxxxx Xxxxxx Name: Xxx Xxxxxxx Xxxxxx Xx Xxxxxxxx
ID Card: 5 676 931-5 SSP/PR ID Card: 13613.493-2
EXHIBIT A
FORM OF SHARE PURCHASE AGREEMENT
EXHIBIT B
FORM OF TELECOMMUNICATIONS
SERVICES AGREEMENT
EXHIBIT C
ASSUMED CONTRACTS
------------------------------------------------------------------------------------------
LIST OF MATERIAL CONTRACTS TRANSFERRED BY XXXXXX.XXX TO MANDIC INTERNET
------------------------------------------------------------------------------------------
==========================================================================================
PARTY OBJECT MONTHLY PAYMENT TERM
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
AECESP - Detran (Transit Access service to R$ 2,80 per From 99.10.20 to
Department) Detran's data base access 00.10.19
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
AGENCIA ESTADO LTDA. Supply of informative R$2,000.00 Indetermined
articles for Mandic
Internet's home page
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
AMEX - AMERICAN EXPRESS American Express 4% on the Indetermined
Credit Card System received gross
value
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
ARGEL AR CONDICIONADO LTDA. Technical assistance R$200.00 Indetermined
for conditioning air
equipment
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
ASSOCIACAO COML DE SAO PAULO Supply of information R$ 0,64 per Indetermined
about credit on consult
checks received by
Mandic Internet
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
ASC ASSESSORIA Rendering of R$234.00 Indetermined
technical and
updating services
AT-DC
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
ATS ASSESSORIA E SISTEMAS Maintenance service R$500.00 Indetermined
S/C LTDA. of XXXX (modulos
fopag), accountancy
and reicevables system
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
AUTOFAX Com. LTDA. Identification of CPF According to the Indetermined
(Individual's Tax number of consults
Roll Number)
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
DHL WORLD WIDL EXPRESS Rendering of courier According to the No written
services weight and agreement
delivery's
location
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
DATAMINIG CONSULTORIA E Development of R$2,000.00 Indetermined
DESENV. EM INFORMATICA LTDA. software for customer
assistance services
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
XXXXXXX BRASIL PUBLICIDADE Advertising, 15% on the Indetermined
LTDA publicity and direct production costs
marketing services
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
DELOITTE TOUCHE Auditing and tax R$2,000.00 99.12.22
TOHMATSU-AUDITORES INDEP. advisory services
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
DELRONIO IND. E COM LTDA . Leasing of photocopy R$238.00 24 months
equipment Sharp,
mod:SF-2114.
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
EDITORA REVISTA DOS Access service to According to the Indetermined
TRIBUNAIS LTDA. jurisprudence data number of
base consults
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
AURORA SOFTWARE LTDA. License of the Remuneration in From 98.10.14 to
software "O Elefante" cash is not 00.10.14
involved
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
FIRMAMENTO ASSES. E Marketing and R$7,000.00 Indetermined
COMUNICACAO S/C LTDA communication services
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
GOLDEN TAXI TRANS. LTDA. Transport services According to the Indetermined
distance
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
HIPERCARD Credit Card System 5% on the
(administration of received gross
credit cards in the value
Northeast of Brazil)
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
MACHIONI, VELOSO, BRAGA E Rendering of legal R$1,100.00 Indetermined
XXXXX ADVS. services
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
LIST OF MATERIAL CONTRACTS TRANSFERRED BY XXXXXX.XXX TO MANDIC INTERNET
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
MAQUINAS DE CAFE EXPRESSO Leasing of a coffee R$200.00 Indetermined
LTDA. machine
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
MIDIA VOX LTDA. License of the In Recife R$1,60 Indetermined
software "Linha per Subscriber.
Livre" In other cities
R$2,00 per
Subscriber
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
XXXXXX PUBLICIDADE Production of According to the No written
publicity material service rendered agreement
and its distribution.
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
MYREEL PRODUCAO DE IMAGENS Monthly supply of R$535.00 Indetermined
E COM. LTDA. articles for
"Developers Magazine"
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
NAWI SEGURANCA OCUPACIONAL Consultation service 2 and 1/2 minimum Indetermined
S/C LTDA in Labor Security salaries
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
OFICINA PAULISTA DE CLIPPING Clipping of artices R$300.00 From 99.05.15 to
and news published 00.05.14
about Mandic Internet
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
OPUS SOFTWARE E REPR. LTDA Development of Hourly rate based Indetermined
software for a new on the
data base of Mandic professional
Internet involved
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
PROCARTA SERVICOS LTDA. Printing service of R$. 120.00 per Indetermined
dockets one thousand
documents.
Minimum value of
R$ 200,00
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
RADIO EXCELSIOR LTDA. Propaganda/Publicity R$6.000,00 Indetermined
(Radio Globo) (depending on the
case)
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
REDECARD S/A. Mastercard Credit 3% on the Indetermined
Card System received gross
value
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
SCAM-Servicos de Association for the (i) 50% of the Indetermined
Comunicacao da Amazonia development of Mandic net income
Ltda. Internet's activities generated by the
in the North area of Subscriber; (ii)
Brazil 50% of the net
income resulting
from roaming
services; (iii)
R$ 0,50 per
active Subscriber.
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
SOFTWARE EXPRESS INF. S/C License of the R$600.00 Indetermined
LTDA. software "Sitef" for
the electronic
transfer of funds
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
SUBSCRIBER AGREEMENTS Electronic agreements Varies Month to Month
with subscribers for
receipt of dial-up
access services
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
SUL AMERICA SEGUROS Health Insurance Per employee - Indetermined
(i) Basic Plan:
R$ 60,04; (ii)
Especial Plan 1;
R$84,38; (iii)
Executive Plan:
180,75
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
SUNSHINE EVENTOS LTDA Promotion of Internet Comission of R$ From 99.05.13 to
access kit of Mandic 4,95 per 00.05.12
Internet Subscriber and a
monthly comission
on the amount
received from
Mandic Internet.
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
TELEFUTURA TELEMARKETING Receptive R$83,200.00 Indetermined
S/C LTDA. telemarketing services
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
TESLA TECNOLOGIA LTDA. Creation and R$12,700.00 Indetermined
maintenance of Mandic
Internet's web site
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
THANK YOU EXPRESS TRANS. Rendering of local R$8.90 /Hora Indetermined
LTDA. courier services
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
LIST OF MATERIAL CONTRACTS TRANSFERRED BY XXXXXX.XXX TO MANDIC INTERNET
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
TREND MICRO DO BRASIL LTDA. License of the 50% of the amount Indetermined
software PC-cillin 98 received from
(anti-virus software) Subscribers
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
UNIBANCO UNIAO DOS BANCOS Programmed debt in 31% of the bank Indetermined
BRASILEIROS S/A. Subscribers' bank fee applicable to
accounts the service
rendered to
Mandic Internet
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
VARIG S.A-VIACAO AEREA Association for the US$. 0,02/mile Indetermined
RIO-GRANDENSE development of Mandic
Internet's promotions
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
VIDEO LUPA COM. E SERV. Intermediary services Comission From 99.05.13 a
LTDA - ME for Sunshine Eventos equivalent to one 00.05.12
Ltda. and Mandic month fee paid by
Internet the Subscriber
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
VISANET VISA Credit card 3% of the sales's Indetermined
System amount
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
XEROX DO BRASIL LTDA. Leasing of equipment R$567.64 Indetermined
mod. Landscape
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
XEROX DO BRASIL LTDA. Leasing of printer R$209.38 Indetermined
equipment
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
COMPUSHOW COMERCIO E (i) Local assistance (i) fixed part: From 99.06.14 to
SERVICOS LTDA. to the Subscribers of R$ 200,00; (ii) 00.06.14
Mandic Internet; (ii) variable part:
administration of the according to the
local branch. numbers of new
Subscribers.
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
ATS ASSESSORIA E SISTEMAS (i) Local assistance (i) fixed part: From 99.06.20 to
S/C LTDA. to the Subscribers of R$ 200,00; (ii) 00.06.20
Mandic Internet; (ii) variable part:
administration of the according to the
local branch. numbers of new
Subscribers.
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
CLINICA DE COMPUTADORES (i) Local assistance (i) fixed part: From 99.06.01 to
LTDA. to the Subscribers of R$ 200,00; (ii) 00.06.01
Mandic Internet; (ii) variable part:
administration of the according to the
local branch. numbers of new
Subscribers.
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
ASTON - AUTOMACAO (i) Local assistance (i) fixed part: From 99.07.01 to
TELECOMUNICACOES LTDA. to the Subscribers of R$ 200,00; (ii) 00.07.01
Mandic Internet; (ii) variable part:
administration of the according to the
local branch. numbers of new
Subscribers.
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
Local companies of Salvador (i) Local assistance (i) fixed part: From 99.07.01 to
(BA), Fortaleza (CE), to the Subscribers of R$ 200,00; (ii) 00.07.01
Florianopolis (SC), Mandic Internet; (ii) variable part:
Curitiba (PR), Campinas administration of the according to the
(SP), Porto Alegre (RS), local branch. numbers of new
and Belo Horizonte (MG). Subscribers.
(No-Written Agreements)
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
XXXXXXXX E XXXXXXX E Rendering of judicial (i) fixed part: Indetermined
ADVOGADOS ASSOCIADOS services related to a R$ 20.000,00
law suit in order to (already paid by
discuss the payment Xxxxxx.Xxx); and
of Service Tax on (ii) success fee:
Internet access 3% on the amount
services provided by recovered.
Mandic Internet to
Subscribers
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
PORTES ADMINISTRACAO E Leasing of suites 91, Approximately R$ From 98.08.01 to
AGROPECUARIA LTDA. 92, 101 and 122 of 2.800,00 per 00.07.31
the building located suite
at Xxxxxxx Xxxxxxx xx
Xxxxxx, 000 (Xxxxxx
Internet's head
office.
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
MICROSOFT CORPORATION Internet Sign-Up (i) less than Indetermined
wizard referral and 1,499 new
Microsoft Internet Subscribers: US$
Explorer License and 40 per
Distribution Agreement Subscriber; (ii)
from 1,500 to
2,499
Subscribers: US$
35 per
Subscriber; (iii)
US$ from 2,500 to
4,999: US$ 30 per
Subscriber; and
(iv) more than
5,000
Subscribers: US$
25 per Subscriber
------------------------------------------------------------------------------------------
LIST OF MATERIAL CONTRACTS TRANSFERRED BY XXXXXX.XXX TO MANDIC INTERNET
------------------------------------------------------------------------------
------------------------------------------------------------------------------
*Purshaser and Seller have been discussing the division of the agreement with
the lessor. Until new agreements are not entered by each party,
------------------------------------------------------------------------------
Seller and Purchaser will pay all the amounts due to the lessor
proportionally to the number of suites occupied by each party.
------------------------------------------------------------------------------
EXHIBIT D
MANDIC INTERNET BALANCE SHEET
XXXXXX.XXX LTDA.
XXXXXX.XXX LTDA.'S NET WORTH ELEMENTS ON JULY 31, 1999 TO BE MERGED IN
TWO EXISTING COMPANIES (Mandic Internet Ltda., and Impsat
Comunicacoes Ltda.) (in reais - R$)
DESTINATION OF MERGED EQUITY
----------------------------------------------------------------------------
Mandic Com. Ltda.
-----------------
ASSETS R$
Comunicacoes
------------
Internet Ltda. Ltda.
-------------- -----
----------------------------------------------------------------------------
CURRENT ASSETS
Cash 109,384 - 109,384
Marketable Securities 368,580 - 368,580
Accounts receivable 707,170 - 707,170
Prepaid taxes 362,462 - 362,462
Other 20,287 650 20,287
TOTAL CURRENT __________ __________
ASSETS 1,531,883 650 1,531,883
----------------------------------------------------------------------------
LONG-TERM ASSETS
Loans among
affiliated companies 1,000,000 - 1,000,000
Interest on loan 119,234 - 119,234
among affiliated
companies
Loans receivable 150,263 - 150,263
TOTAL LONG-TERM ___________ _____________ ___________
ASSETS: 1,269,497 - 1,269,497
----------------------------------------------------------------------------
PERMANENT ASSETS
----------------------------------------------------------------------------
Property, plant
and equipment, net
TOTAL PERMANENT 2,191,866 208,632 1,983,234
ASSETS: ____________ _____________ _____________
2,191,866 208,632 1,983,234
----------------------------------------------------------------------------
TOTAL ASSETS 4,993,246 209,282 4,783,964
----------------------------------------------------------------------------
LIABILITIES
----------------------------------------------------------------------------
CURRENT
LIABILITIES
----------------------------------------------------------------------------
Notes Payable 621,810 - 621,810
Social Contribution
Payable 69,438 - 69,438
Tax Payable 129,812 - 129,812
Accounts Payable 16,283 - 16,283
----------------------------------------------------------------------------
Provisions 327,173 100,607 327,173
Other current
liabilities 4,123 - 4,123
_____________ ____________ _____________
TOTAL CURRENT
LIABILITES: 1,168,639 100,607 1,168,639
----------------------------------------------------------------------------
LONG TERM
LIABILITIES
----------------------------------------------------------------------------
Long-Term Debts -Loan-
Interco 111,165 - 111,165
-------------- -------------- --------------
TOTAL LONG TERM
LIABILITIES 111,165 111,165
----------------------------------------------------------------------------
TOTAL 1,279,804 100,607 1,179,197
----------------------------------------------------------------------------
NET WORTH TO BE
MERGED 3,713,441 108,675 3,604,767
----------------------------------------------------------------------------
TOTAL LIABILITIES 4,993,246 209,282 4,783,964
----------------------------------------------------------------------------
EXHIBIT E
FORM OF PRIVATE INSTRUMENT OF
AMENDMENT OF THE ARTICLES OF ASSOCATION
MANDIC INTERNET LTDA.
CNPJ No. 02.889.879/0001-08
N.I.R.E. No. 00.000.000.000
Amendment to the Articles of Association
By this private instrument, the undersigned: (a) IMPSAT COMUNICACOES LTDA., a
Brazilian limited liability company, with principal offices at Av. Eng. Xxxx
Xxxxxx Xxxxxxx, 000, 00 andar (parte) e 11(degree) andar, in the City of Sao
Paulo, State of Sao Paulo, enrolled under the CNPJ under No. 72.843.212/0001-41,
with its Articles of Association duly registered with the Commercial Registry of
the State of Sao Paulo under No. 00.000.000.000, on 23.9.1993, herein
represented, in the form of its articles of association, by its officers Xx.
Xxxxxx Xxxxxxx Hourquescos, Argentinean, married, engineer, with offices at Av.
Eng. Xxxx Xxxxxx Xxxxxxx, 550, 10(degree) andar (parte) e 11(degree) andar,
bearer of Identity Card RNE No. V.211.219-V SE/DPMAF/DPF and enrolled with the
CPF/MF under No. 000.000.000-00 and Xx. Xxxxxx Xxxxxx Xxxxxxx, Argentinean,
single, business administrator, with offices at Av. Eng. Xxxx Xxxxxx Xxxxxxx,
550, 10(degree) andar (parte) e 11(degree) andar, bearer of Identity Card RNE
No. V 186216 E SE/DPMA/DPF and enrolled with the CPF/MF under No.
000.000.000-00; and (b) XXXXXX XXXXXXX HOURQUESCOS, qualified above;
quotaholders representing the entire corporate capital of MANDIC INTERNET LTDA.,
a limited liability company with headquarters in the City of Sao Paulo, State of
Sao Paulo, at Av. Eng. Xxxx Xxxxxx Xxxxxxx, 550, 11(degree) andar, Brooklin
Novo, with its Articles of Association duly registered with the Commercial
Registry of the State of Sao Paulo under No. 00.000.000.000, on January 8, 1999,
have agreed to amend said Articles of Association, as follows:
1. - IMPSAT COMUNICACOES LTDA., which owns 108,774 (one hundred
and eight thousand, seven hundred and seventy four) quotas, hereby withdraws
from the Company, and assigns and transfers, as in fact it has assigned and
transferred, the totality of its 108,774 (one hundred and eight thousand,
seven hundred and seventy four) quotas, with all they represent, free and
clear of any encumbrances or liens, to O SITE ENTRETENIMENTOS LTDA., a
Brazilian limited liability company, with principal offices at Xxx Xxxxxx
Xxxxx xxx Xxxxxx, 00, 1(degree) andar, conjunto 12, Brooklin, in the City of
Sao Paulo, State of Sao Paulo, enrolled
under the CNPJ N(0) 01.561.351/0001-34.
2. - XXXXXX XXXXXXX HOURQUESCOS, who owns 1 (one) quota, hereby
withdraws from the Company, and assigns and transfers, as in fact he has
assigned and transferred, the totality of his 1 quota, with all it represent,
free and clear of any encumbrances or liens to XXXXXX XXXXX ARANHA.
3. - The Company, the assignors and the assignees hereby give each
other full, general, irrevocable and irreversible release as regards the quotas
assigned and transferred hereunder, waiving all further claims against each
other at any time, in any way and under any pretext.
4. - After the aforementioned assignment, the corporate capital of
R$ 108,775.00 (one hundred and eight thousand, seven hundred and seventy seven
reais), divided into 108,775 (one hundred and eight thousand, seven hundred and
seventy five) quotas, with a par value of R$ 1,00 (one real) each, is
distributed among the quotaholders as follows:
(a) O SITE ENTRETENIMENTOS LTDA. owns 108,774 (one
hundred and eight thousand, seven hundred and seventy four) quotas, in the total
amount of R$ 108,774.00 (one hundred and eight thousand, seven hundred and
seventy four reais); and
(b) XXXXXX XXXXX ARANHA owns 1 (one) quota, in the total
amount of R$ 1.00 (one real).
5. - In view of the above resolutions, the quotaholders resolve not
only to amend clauses V of the articles of association but also to reword and
consolidate all of its articles and dispositions, which shall henceforth become
effective in full with the following new wording:
"ARTICLES OF ASSOCIATION
OF
MANDIC INTERNET LTDA.
(...)"
Sao Paulo, October ___, 1999
IMPSAT COMUNICACOES LTDA.
----------------------------------------
Name:
Title:
----------------------------------------
Name:
Title:
XXXXXX XXXXXXX HORQUESCOS
------------------------------------
O SITE ENTRETENIMENTOS LTDA.
------------------------------------
Name:
Title:
Witnesses:
1. - ________________________________ 2. - ___________________________________
Name: Name:
ID: ID:
EXHIBIT F
FORM OF RELEASE
IMPSAT COMUNICACOES LTDA., a Brazilian limited liability company, with principal
offices at Av. Eng. Xxxx Xxxxxx Xxxxxxx, 000, 00 andar (parte) e 11(degree)
andar, in the City of Sao Paulo, State of Sao Paulo, enrolled with the CNPJ
under No. 72.843.212/0001-41, herein represented, in the form of its articles of
association, by its officers Xx. Xxxxxx Xxxxxxx Hourquescos and Xx. Xxxxxx
Xxxxxx Xxxxxxx, hereby declares that it has received from O SITE ENTRETENIMENTOS
LTDA., a Brazilian limited liability company, with principal offices at Xxx
Xxxxxx Xxxxx xxx Xxxxxx, 00, 1(degree) andar, conjunto 12, in the City of Sao
Paulo, State of Sao Paulo, the amount of R$_______________(_______________reais)
corresponding to the payment of the Purchase Price pursuant to the Quota
Purchase Agreement entered into and between the parties on October ___, 1999.
Sao Paulo, October __, 1999
IMPSAT COMUNICACOES LTDA.
---------------------------------------
Name: Xxxxxx Xxxxxxx Hourquescos
Title: Director
---------------------------------------
Name: Xxxxxx Xxxxxx Xxxxxxx
Title: Director
EXHIBIT G
PURCHASER DISCLOSURE SCHEDULES
None.
EXHIBIT H
SELLER DISCLOSURE SCHEDULES
None.
EXHIBIT I
EMPLOYMENT AGREEMENTS
None.
EXHIBIT J
INSURANCE POLICIES
Hannover International Insurance Company Policy No. 01.01.001.002544.
EXHIBIT K
MATERIAL WAIVER OR FORBEARANCE
None.
EXHIBIT L
FORM OF OPINION OF COMPANY'S COUNSEL
Gentlemen:
This opinion is furnished to you pursuant to Article 5.1.7 of the
Quota Purchase Agreement dated as of October __, 1999 (the "Agreement") between
Impsat Comunicacoes Ltda. (the "Seller") and O Site Entretenimentos Ltda. (the
"Purchaser"). Terms defined in the Agreement are used herein as therein defined.
We have acted as counsel for the Seller in connection with the
preparation, execution and delivery of the Agreement.
In that connection we have examined:
(1) the Agreement; and
(2) the corporate documents of the Seller.
Based upon the foregoing, we, having regard for legal considerations
we deem relevant, are of the opinion that:
(a) The Seller and Mandic Internet Ltda. ("Mandic Internet") are
limited liability companies (sociedades por quotas de responsabilidde limiitada)
validly existing and in good standing under the laws of the Federative Republic
of Brazil.
(b) The Agreement is a legal, valid and binding agreement of the
Seller, enforceable against the Seller in accordance with its terms, except to
the extent that the enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, moratorium, concordata, fraudulent conveyance or
other similar laws now or hereafter in effect relating to creditors' rights
generally.
(c) Except as set forth in the Exhibits to the Agreement, there are
(i) to our knowledge, no material pending or threatened action, suit, claim,
litigation or governmental proceedings or investigations involving the Company
of any nature, in law or equity; (ii) to our knowledge, no outstanding warrants,
options, agreements, convertible securities or other commitments or instruments
pursuant to which the Seller is or may become obligated to sell or repurchase
the Quotas of Mandic Internet; (iii) no preemptive, contractual or similar
rights to purchase or otherwise acquire, except pursuant to the Agreement; (iv)
no restrictions on the transfer of the Quotas
imposed by any Brazilian statute the Quotas, or to our knowledge, any agreement
to which the Seller is a party or any order of any court or any government
agency to which the Seller is subject; and (v) to our knowledge, no agreements,
written or oral, between the Seller and any quotaholder relating to the
acquisition, disposition or voting of the Quotas.
(d) The execution, delivery and performance by the Seller of the
Agreement, and the compliance with the provisions thereof by the Seller, do not:
(i) Violate any provision of Brazilian law, or to our knowledge
any ruling, writ, injunction, order, judgment or decree of any
court, administrative agency or other governmental body
applicable to the Seller or its properties or assets; or
(ii) conflict with or result in any breach of any of the terms,
conditions or provisions of, or constitute (with due notice or
lapse of time, or both) a default (or give rise to any right
of termination, cancellation or acceleration) or result in the
creation of any lien, security interest, charge or encumbrance
upon any of the properties or assets of the Seller under any
agreement, document, instrument, contract, note indenture,
mortgage or lease to which the Seller is known by us to be a
party or under which the Seller or any of its assets is known
by us to be bound or affected.
(e) No authorization, consent, approval or other order of, or
declaration to or filing with, any governmental agency or body, and to our
knowledge, no consent, waiver, or authorization under any agreement, instrument,
contract, note, indenture, mortgage or lease to which the Seller or is known by
us to be a party or under which the Seller or Mandic Internet or any of their
assets is known by us to be bound or affected, is required for: (i) the valid
authorization, execution, delivery and performance by the Seller of the
Agreement, or (ii) the valid authorization, sale and delivery of the Quotas to
the Purchaser, except for the authorization given under the Quotaholders Meeting
of the Seller held on September 27, 1999.
(f) The Seller has the necessary corporate power and authority to
own its properties and conduct its businesses as presently conducted, to enter
into the Agreement, and consummate the transactions contemplated thereby.
(g) All action required by the Company in order to authorize the
execution, delivery and performance of the Agreement and the consummation of the
transactions contemplated thereby by the Seller has been duly and validly taken.
(h) The execution and delivery of the Agreement does not violate the
Articles of Association of the Seller.
(i) The quotas to be delivered and transferred under the Agreement
have been duly and validly authorized and, when paid for and issued in
accordance with the Agreement, will be fully paid and non-assessable, free and
clear of any lien, encumbrance, pledge or claim whatsoever.
(j) The corporate capital of Mandic Internet is of R$108,775 (one
hundred and eight thousand, seven hundred and seventy five reais) divided into
108,775 (one hundred and eight thousand, seven hundred and seventy five) quotas.
Very truly yours,
----------------------------------------
