AMENDMENT No. 1 AND
WAIVER TO
PAGING NETWORK DO BRASIL S.A.
SHAREHOLDERS AGREEMENT
AMENDMENT NO. 1 AND WAIVER, dated as of March 10. 1997 (this
Amendment and Waiver ), by and among Warburg, Xxxxxx Venures, L.P., a Delaware
limited partnership ( Warburg ), Paging Network International N.V.. a
Netherlands corporation ( PageNet ), IVP Paging (Cayman) L.P., a Cayman Islands
limited partnership( IPC ), Multiponto Telecomunicacoes Ltda., a Brazilian
limited liability company Multiponto ), TVA Sistema de Televisao S.A., a
Brazilian limited liability company TVA ), Xxxxxx X. Xxxxxx ( Trynin ), Xxxxx X.
Fregenal ( Fregenal ), Paging Brazil Holding Co., LLC a Delaware limited
liability company ( Holding LLC ), and Paging Network do Brasil S.A., a
Brazilian corporation (the Corporation ). to the SHAREHOLDERS AGREEMENT, dated
December 11, 1996 (the Shareholders Agreement ), by and among Warburg, PageNet,
IPC. Multiponto, TVA. Trynin. Fregenal and the Corporation.
WHEREAS, THE Corporation desires to issue (the Offering ) its Senior
Notes. due 2005, under an Indenture (the Indenture ) between the Corporation and
The Chase Manhattan Bank, as trustee, to certain investors (the Noteholders ),
and
WHEREAS, in connection with the Offering, the Noteholders will
purchase nonvoting interests in Holding LLC; and
WHEREAS, in connection with the Offering, the Corporation will issue
shares to Holding LLC representing up to 10% of its Common Stock on a fully
diluted basis (the Noteholder Shares ), as an inducement to the Noteholders
making an investment in the Notes. and
WHEREAS, the Corporation has determined it desirable for the
Corporation to issue such Common Stock to Holding LLC and for the Noteholders to
acquire an equity interest in Holding LLC; and
WHEREAS, the Noteholders desire that Warburg contribute shares of
Common Stock held by it to Holding LLC in exchange for an equity interest in
Holding LLC Warburg LLC Interests ), and
WHEREAS, in order to consummate the Offering it is necessary to
amend the terms of the Corporation's Preferred Stock; and
WHEREAS, the parties hereto have determined it desirable to
supplement. amend and waive certain provisions of the Shareholders Agreement in
connection with the Offering.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
Section 1. Definitions. Capitalized terms used herein but not
defined herein shall have the meanings given to such terms in the Shareholders
Agreement.
Section 2. Amendment to the Shareholders Agreement.
(A) The parties hereto acknowledge that, in connection with the
Offering, the authorized Common Stock will be increased to (i) effect a stock
split, stock dividend or similar change to the existing Common Stock, which in
any case shall be applicable to all outstanding shares of Common Stock and any
options, warrants, subscription bonds or other securities convertible into or
exchangeable for shares of Common Stock outstanding on the closing of the
Offering (collectively, the Stock Split ) and (ii) create the authorized shares
necessary to issue the Noteholder Shares to Holding LLC. Accordingly. as of the
closing of the Offering, Clause 2 (a) of the Shareholders Agreement shall be
amended (i) to change the reference to 50,000 therein to such number of shares
of Common Stock as the underwriters of the Offering and the Company shall
mutually agree (the New Common Shares ), it being understood that the total
number of Noteholder Shares shall not exceed 10% of the outstanding shares of
Common Stock on a fully diluted basis, and (ii) to change the reference to
113,000 therein to the sum of the New Common Shares and 63,000.
(B) The second sentence of Section 3.1 (a) of the Shareholders
Agreement is hereby amended by replacing the word The at the beginning thereof
with the following:
Subject to the provisions contained in the Indenture restricting the
Corporation's ability to pay dividends, the
(C) Section 3.1 (a) of the Shareholders Agreement is hereby further
amended by inserting the following new paragraph at the end thereof:
If the Corporation is not permitted by the terms of the Indenture to
pay a cash dividend that would otherwise be payable pursuant to clause (ii),
(iii) or (iv) above, then the amount of such cash dividend shall accumulate as
an unpaid dividend as of the date the cash dividend should otherwise have been
declared and the Corporation shall pay in cash such accumulated dividend as soon
thereafter as is permitted by the terms of the Indenture.
(D) Section 3.1 (d) (i) of the Shareholders Agreement is hereby
amended to read in its entirety as follows:
Subject to the provisions contained in the Indenture restricting the
Corporation's ability to redeem capital stock, at the election of the holders of
a majority of the outstanding Preferred Stock, made by written notice to the
Corporation, the preferred Stock shall be subject to redemption (to the extent
that such redemption shall not violate any applicable provisions of the laws of
Brazil, based upon advice of counsel) at a price per share equal to
2
U.S.$l,000, plus an amount equal to any and all dividends accrued and unpaid
thereon as of the date of such-redemption (the Redemption Price ) if a Liquidity
Event (as defined in the Securities Subscription Agreement) occurs.
(E) The following definitions are hereby added in the appropriate
alphabetical order in the list of definitions contained in Clause 10 (a) of the
Shareholders Agreement:
hold: means, with respect to the ownership of any securities, (i) to
have the power to vote, or to direct the vote of, such securities or (ii) to
have the power to dispose. or to direct the disposition of, such securities.
own: means, with respect to the ownership of any securities, (i) to
have the power to vote, or to direct the vote of, such securities or (ii) to
have the power to dispose. or to direct the disposition of, such securities.
Section 3. Waiver of Preemptive Right. Each Shareholder hereby
waives its preemptive rights pursuant to Clause 8 (g) of the Shareholders
Agreement to purchase shares of Common Stock, and any other preemptive or
similar right of such Shareholder arising under this or any other contractual
arrangement or under Brazilian corporation law, in connection with the issuance
by the Corporation of the Noteholder Shares to Holding LLC in -connection with
the Offering, provided the total number of Noteholder Shares shall not exceed
10% of the outstanding shares of Common Stock on a fully diluted basis.
Section 4. Consent to Transfer of Warburg Shares of Common Stock.
(A) Each Shareholder hereby consents to the Transfer by Warburg of
all shares of Common Stock (the Warburg Shares ) to Holding LLC, which as a
result of such Transfer shall be an Affiliate of Warburg. Holding LLC hereby
agrees to be bound by all the restrictions otherwise applicable to Warburg under
the Shareholder Agreement and shall immediately become a party to the
Shareholders Agreement.
(B) The Shareholder further consent to any subsequent Transfer by
Holding LLC of the Warburg Shares to Warburg and any transfer of the Warburg
Shares shall be deemed to be a transfer by Warburg.
(C) Warburg agrees that any Transfer of Warburg LLC Interests shall
be deemed to be a Transfer of Common Stock under Clause 8 of the Shareholders
Agreement and shall be made in compliance therewith.
Section 5. Agreement. The term Agreement as used in the Shareholders
Agreement shall be deemed to refer to the Shareholders Agreement, as amended
hereby. This Amendment and Waiver shall be effective as of the date hereof and,
except as set forth herein, the Shareholders Agreement shall remain in full
force and effect and be otherwise unaffected hereby
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Section 6. Further Assurances. Each party to this Amendment and
Waiver agrees to execute, acknowledge, deliver, file and record such further
certificates, amendments, instruments and documents, and to do all such other
acts and things, as may be required by law or as may be necessary or advisable
to carry out the intent and purpose of this Amendment and Waiver.
Section 7. Heading and Captions. All headings and captions contained
in this Amendment and Waiver are inserted for convenience only and shall not be
deemed a part of this Amendment and Waiver.
Section 8. Governing Law. THIS AMENDMENT AND WAIVER SHALL BE
GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE FEDERATIVE REPUBLIC OF
BRAZIL.
Section 9. Counterparts This Amendment and Waiver may be executed in
two or more counterparts, each of which shall constitute an original and all of
which, when taken together, shall constitute one agreement
Section 10. Invalidity.. Every provision of this Amendment and
Waiver is intended to be several. The invalidity and unenforceability of any
particular provision of the -Amendment and Waiver in any jurisdiction shall not
affect the other provisions hereof, and this Amendment and Waiver shall be
construed in all respects as of such invalid or unenforceable provision were
omitted.
Section 11. Successors and Assigns. This Amendment and Waiver shall
be binding upon the parties hereto and their respective successors, executors,
administrators, legal representatives, heirs and legal assigns and shall inure
to the benefit of the parties hereto and, except as otherwise provided herein,
their respective successors, executors, administrators, legal representatives,
heirs and legal assigns. No person other than the parties hereto and their
respective successors, executors, administrators, legal representatives. heirs
and legal assigns, shall have any rights or claims under this Amendment and
Waiver.
IN WITNESS WHEREOF, the parties have caused this Amendment and
Waiver to be duly executed as of the day and year first above written.
WARBURG, XXXXXX VENTURES, L.P.
By: Warburg, Xxxxxx & Co.,
General Partner
/s/ Xxxxxxx X. Xxxx
-----------------------------------------
By: Name: Xxxxxxx X. Xxxx
Title: Partner
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PAGING NETWORK INTERNATIONAL N.V.
/s/ Xxxxx Xxxxxxxx
-----------------------------------------
By: Name: Xxxxx Fromerg
Title:
IVP PAGING (CAYMAN) L.P.
By: IVP - International Venture
Partners, Inc., General Partner
/s/ Xxxxxxx Xxxxx
-----------------------------------------
By: Name: Xxxxxxx Xxxxx
Title: Partner
MULTIPONTO TELECOMUNICACOES LTDA.
/s/ Xxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxx
-----------------------------------------
By: Name: Xxxxxxxx Xxxxxxx Dantas Xxxxxxxxx
Title: Attorney-in-fact
TVA SISTEMA TELEVISAO S.A.
/s/ Xxxxxxxx Xxxxxxxx
/s/ Xxxxxxx Xxx Xxxxxx
-----------------------------------------
By: Name: Xxxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxx Xxxxxx
Title: Attorneys-in-fact
/s/ Xxxxxx X. Xxxxxx
------------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxx X. Fregenal
------------------------------------
Xxxxx X. Fregenal
PAGING BRAZIL HOLDING CO., LLC
/s/ Xxxxx X. Xxxxxxxx
------------------------------------
By: Name: Xxxxx X. Xxxxxxxx
Title: Manager
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PAGING NETWORK DO BRASIL S.A.
/s/ Xxxxxx X. Xxxxxx
------------------------------------
By: Name: Xxxxxx X. Xxxxxx
Title: President
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