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Exhibit 2.11
SHAREHOLDER AGREEMENT
NUTEC INFORMATICA S/A
By virtue of this private instrument, the undersigned parties:
1. TELEFONICA INTERACTIVA BRASIL LTDA., a limited-liability joint-stock
corporation with head office in the City of Sao Paulo, State of Sao Paulo,
at Rua da Consolacao, 247, 6(degree) andar, sala 28-A, with its corporate
charter duly filed and recorded with the Trade Board of the State of Sao
Paulo, registered with the CNPJ/MF under No. 03.185.736/0001-70, herein
represented by its Manager Representative Xx. Xxxxx X. Xxxxxxx,
hereinafter to be referred to simply as "TIB,"
2. MLSP COMERCIO E PARTICIPACOES LTDA., a limited liability joint-stock
corporation with head office in the City of Porto Alegre, State of Rio
Grande do Sul, at Rua Cel. Camisao, 237/601, Bairro Higienopolis, with its
corporate charter duly filed and recorded with the Trade Board of the
state of Rio Grande do Sul under NIRC No. 00.000.000.000 at its meeting of
March 24, 1998, registered with the CNPJ/MF under No. 02.429.422/0001-02,
herein represented by its Directors Messrs. Xxxxxxx Xxxxx Xxxxxxx and
Xxxxxx Xxxxxxxxx Xxxxxx, hereinafter to be referred to simply as "MLSP;"
and
3. XXXXXX XXXX XXXXX DE XXXXX, a Brazilian citizen, married, a systems
analyst, residing and domiciled in the City of Porto Alegre, State of Rio
Grande do Sul, at Xxx Xxxxxxxxxxx xx Xxxxxxx, 000, Apto. 401, holder of RG
identification card No. 5002912995-SSP/RS, and registered with the CPF/MF
under No. 000.000.000-00. hereinafter to be referred to simply as
"Xxxxxx;"
hereinafter to be referred to jointly as "Shareholders" or "Parties;" and in
addition.
4. NUTEC INFORMATICA S/A, a joint-stock corporation with head office in the
City of Porto Alegre, at Xxx Xxxxxxxx, 0000, with its corporate charter
duly filed and recorded with the Trade Board of the State of Rio Grande do
Sul, registered with the CNPJ/MF under No. 91.089.328/0001-67, herein
represented by its
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Directors, and hereinafter to be referred to simply as the "Corporation;"
5. XXXXXX XXXXXXXXX XXXXXX, a Brazilian citizen, married, an electronics
engineer, residing and domiciled in the City of Porto Alegre, State of Rio
Grande do Sul, at Xxx Xxxxxxx Xxxxxxx, 000, apto. 601, holder of RG
identification card No. 8000873409-SSP/RS and registered with the CPF/MF
under No. 000.000.000-00, hereinafter to be referred to simply as
"Xxxxxx;" and
6. XXXXXXX XXXXX XXXXXXX, a Brazilian citizen, divorced, a systems analyst,
residing and domiciled in the City of Sao Paulo, State of Sao Paulo at Xxx
Xxxxxxxx xx Xxxxxx, 000, apto. 31, Morumbi, holder of RG identification
card No. 4007554423-SSP/RS and registered with the CPF/MF under No.
333.979 450-20, hereinafter to be referred to simply as "Xxxxxxx," and
jointly with the Corporation and Xxxxxx, "Consenting Mediators."
WHEREAS by virtue of a Subscription Agreement on this date TIB shall become
corporate shareholder, holder and legitimate owner of shares representing 96%
(ninety-six percent) of the corporation's total capital stock, and MLSP shall
become shareholder, holder and legitimate owner of shares representing 3% (three
percent) of the Corporation's total capital stock;
WHEREAS by virtue of a Share Purchase and Sale Agreement on this date, Xxxxxx
shall become corporate shareholder, holder and legitimate owner of shares
representing 1% (one percent) of the corporation's total capital stock;
WHEREAS it is the absolute will of the parties and a business principle that in
any legal situations the minority shareholders shall at all times be guaranteed
the equivalent of 4% of the Corporation's value;
WHEREAS the Parties henceforth wish to establish certain rules for joint
existence between them and applicable conditions with respect to the transfer of
their corporate interests in the Corporation;
they have between themselves duly agreed to enter into this Corporate
Shareholder Agreement, henceforth to be referred to as "Agreement," which shall
be governed by the terms and conditions stipulated below:
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1. CORPORATE INTERESTS SUBJECT TO THE AGREEMENT
All shares issued by the Corporation representing its capital stock owned
by the Parties, ("Shares," and individually "Share") shall be subject to this
Agreement on the date that such Agreement enters into force, i.e., on August 5,
1999, or on such other date as may be agreed to by the Parties in writing (the
"Validity Date"), as well as such as may be agreed to in the future.
2. SHARES
2.1 On the Validity Date, the Shares shall be held and owned by the
Parties, in the following percentages of capital stock:
---------------------------------------------
Partner Interest in the
Corporation's
Capital
Stock -- Total %
---------------------------------------------
TIB 96.00
---------------------------------------------
MLSP 3.00
---------------------------------------------
XXXXXX 1.00
---------------------------------------------
Total: 100.00
---------------------------------------------
2.2 Each of the Parties warrants and represents that on the Validity Date
it shall be a holder and legitimate owner of its Shares, free and clear of any
and all encumbrances, liens, restrictions, rights of refusal or other burdens of
any kind.
3. RESTRICTIONS AS TO THE CIRCULATION OF SHARES
3.1 General Conditions
The Shares owned by the Parties representing the Corporation's
capital stock, bound to this Agreement pursuant to the terms of Clause 1 above,
the right to subscribe the aforementioned Shares, and the securities supporting
such right or which are convertible into Shares (equivalent to the Shares
themselves for purposes of this Agreement) may not be sold, assigned,
transferred, pledged, given in usufruct or trust, conferred to the capital of
another corporation or in any other way alienated or encumbered, except as
provided for in this Agreement.
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3.2 Minority Shareholder Sale Option
At any time after the Validity Date, Xxxxxx and MLSP (hereinafter to
be referred to simply as the "Minority Shareholders") may exercise the option to
sell their Shares to TIB, which in turn hereby promises to acquire the
aforementioned shares ("Sale Option"). The Sale Option may be validly exercised
by the Minority Shareholders singly or jointly.
3.2.1 Acquisition Price
For purposes of this clause, the reference price shall be
considered as being the total value paid by TIB for subscribing its Shares in
the Corporation, pursuant to the terms provided for in the Subscription
Agreement of this date signed with RBS Administracao e Cobrancas Ltda. et al,
i.e., the value in the current legal tender currency of Brazil equivalent to US$
200 million (two hundred million U.S. dollars), in exchange for 100% (one
hundred percent) of the shares issued by the Corporation on this date
(hereinafter to be referred to simply as "Base Value").
(a) In the event that the Minority Shareholders exercise the Sale
Option within the period between the Validity Date and July 30, 2001
(inclusive), pursuant to the condition set forth in Clause 3.2.2 below, TIB
shall pay the equivalent of 30% (thirty percent) of the Base Value, for the
entire number of Shares it shall acquire from the Minority Shareholders. In the
event that the Minority Shareholders exercise the Sale Option at any time after
July 30, 2001, pursuant to the condition set forth in Clause 3.2.2 below, TIB
shall pay the equivalent of 100% (one hundred percent) of the Base Value, in
addition to the change in the six-month LIBOR ("London Interbank Offered Rate")
for the period, for all the Shares that it shall acquire from the Minority
Shareholders.
(b) In the event of an increase in the value of the shares after
July 30, 2001 and in the event that the Minority Shareholders exercise the Sale
Option, TIB shall be required to conform to the value resulting from the
increase, assuming at all times that the Minority Shareholders jointly hold
rights to 4% of the total value of the Corporation's capital stock, in the form
described below.
(c) For purposes of verifying the increased value of the Shares, the
parties may, in the event that they are unable to come to a consensus with
respect to the price, choose among three investment banks and among three
independent auditing firms, one from each sector, which may undertake a
definitive appraisal of the Shares and in particular of the
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rights representing 4% of the value of the Corporation's capital stock.
3.2.2 Guarantee of Non-Dilution
(a) In the event of any acquisition of the Minority Shareholders'
Shares by TIB, the acquisition price to be paid by TIB shall assume, under all
circumstances, 4% (four percent) of the value of the Corporation's total capital
stock as being the actual corporate interest of the Corporation's Minority
Shareholders, even if, on the occasion of such acquisition, such percentage does
not hold by virtue of the dilution of the Minority Shareholders' corporate
interests as a consequence of the Corporation's capital increases after that
date, which were subscribed by TIB only, in view of the Minority Shareholders'
waiver of their right of first refusal to subscribe. Of the total 4% (four
percent) referring to the value of the capital stock, 1% (one percent) shall be
paid to Xxxxxx, and the remaining 3% (three percent) to MLSP.
This commitment shall henceforth be binding on TIB, and shall remain
binding in the event of any assignment or transfer of any portion of the Shares
from TIB to a third party which does not assume it on the occasion of the
aforementioned assignment and transfer, such that it be henceforth set forth
that such commitment shall retain in full effect the right of the Minority
Shareholders to securities representing 4% of the value of the Corporation's
capital stock, in the form already described above, which right is
unconditionally and irrevocably guaranteed by TIB to the Minority Shareholders,
thereby reflecting the Parties' global understanding and the spirit of the
transaction.
(b) The Parties recognize that in the near future, in accordance
with the strategic plans of the controlling shareholder's control group, (x) the
Corporation may be subjected to the process of opening its capital to the public
distribution of shares in a country to be defined, which process shall be known
as "IPO (Initial Public Offering)", or (y) also, by contrast with the
Corporation, any entity which indirectly controls it, and which operates within
an economic group, may be subject to such process. In either of these events,
the above terms and conditions in this Clause 3.2.2 shall apply, i.e., it shall
be assumed that the Minority Shareholders hold total rights equivalent to 4% of
the shares representing the entire capital stock of the Corporation, with the
consequences resulting from this definition of the volume of shares placed into
an "IPO" and that, in the event mentioned in item (y) of this paragraph, any
positive increase in the value of the Corporation's shares which may have
indirectly occurred through its control having passed through the process of an
IPO shall be taken into consideration. The parties acknowledge that in the case
of
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an offering of capital through the "IPO" process, the Minority Shareholders
shall at all times be entitled to the real values attributed to and obtained
through this transaction, at all times equivalent to 4% of the shares
representing the Corporation's total capital stock.
3.3 Right of First Refusal
(a) No Party may sell or in any form transfer or guarantee to third
parties or to any other Party to this Agreement any or all of its Shares without
first offering them, in the capacity of "Offering Party," to all other Parties,
who shall have right of first refusal to acquire them in proportion to the
number of Shares which they hold on the date this offering was made, under
identical conditions as those of the interested third party (shareholder or
not), and the exercise of the right of first refusal mentioned herein must occur
within a maximum of 30 (thirty) days after the date of issuance of the
notification from the Offering Party. (b) With respect to the subscription of
new Shares, in the event of a waiver by any of the Shareholders, such others as
wish may completely exercise their right of first refusal on the portion covered
by the waiver.
3.4 Permitted Transfers
The restrictions of this Clause shall not apply to transfers of
Shares to corporations controlled by the Parties, for the case of Minority
Shareholders, and to subsidiary corporations, parent companies or those under
the same control, for the case of TIB, provided that such subsidiary
corporations of the Parties become, in turn, integral parties to this Agreement.
4. NON-COMPETE
4.1 The Minority Shareholders, on their own behalf and on that of their
subsidiary corporations, controlled companies or affiliates, direct or indirect,
as well as their partners, directors, employees and representatives, promise
irrevocably and unconditionally to not compete with the Corporation so long as
they are shareholders of the Corporation and for a period of 12 months after
their withdrawal from the Corporation, solely with respect to the activities
currently engaged in by the Corporation.
4.2 In the same way. Non-Controlling Shareholders, on their own behalf and
on that of their subsidiary corporations, controlled companies or affiliates,
direct or indirect, as well as their partners,
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directors, employees and representatives unconditionally and irrevocably
promise, directly and indirectly, by means of any other individual or legal
entity,
(a) [not?] to request, attract, persuade or induce any Employee, pursuant
to the definition thereof below in this letter (a), to: (i) cancel or fail to
renew or expand his employment relationship with the Corporation or its
Subsidiaries; or (ii) establish any contractual relationship with any Competing
Business. For the purposes provided for herein, "Employee" shall mean and
include parties employed by the Corporation and its Subsidiaries on this date or
during the time of the execution of any actions prohibited by this item (a), in
any position or function, even in management. The obligation assumed herein
shall remain in force for a period of 18 months as of this date with respect to
Employees, except with respect to the Employees mentioned in Annex 1, with
respect to which the obligation shall remain in force for 18 months after this
date.
(b) insofar as they are shareholders of the Corporation and for a period
of 18 months after their withdrawal from the Corporation, [not?] to request,
attract, persuade or induce any Client or Supplier, in accordance with the
definitions provided herein, to cancel, reduce or fail to renew or expand its
agreements or other relationships with the Corporation or any of its
Subsidiaries, to become a client thereof or to formalize any agreement or any
other relationship of this type with a competing business. For the purposes set
forth herein, "Client" shall mean and shall include all clients of the
Corporation and/or its Subsidiaries during a period of 18 months immediately
prior to the date this Agreement is entered into or those which may be clients
of the Corporation and/or of its Subsidiaries, at any time; "Supplier" shall
mean and shall include all entities from which the Corporation and/or its
Subsidiaries acquire goods and other materials during the 18-month period
immediately prior to the date this Agreement is entered into or from which the
Corporation and/or its Subsidiaries purchased goods and other materials at any
time.
4.3 The Non-Controlling Shareholders promise also, on their own behalf and
on that of their subsidiary corporations, parent companies, controlled companies
or affiliates, to ensure that their partners, directors, employees and
representatives act in the same form, to persuade any Employees seeking to be
placed in a job or independent service to remain in the Corporation or in the
subsidiaries for a minimum period of 6 months prior to the intended engagement.
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4.4 With respect to the joint development of future processes and
preferential treatment in hiring, the Parties agree to the following: in the
event that the Minority Shareholders are invited to participate as investors in
projects for the development of content sites or other sites of a commercial
nature, the Minority Shareholders hereby promise to offer the opportunity to the
majority shareholder such that the latter, if it so wishes and at its sole
discretion, may also have access to participation in the project, under
conditions to be established at the time by the interested parties.
5. DIVISION OF PROVISIONS
In the event that any provision of this Agreement is or becomes invalid or
unenforceable, the other provisions thereof shall remain in full force and
effect, and in such case, the Parties shall enter into good faith negotiations,
with a view to replacing the invalid or unenforceable provision by another
which, insofar as is possible and in reasonable fashion, fulfills the same
objective and has the desired effect.
6. COMMUNICATIONS
Any notice or communication deriving from this Agreement shall be in
writing, and may be made solely by fax, sent to the address of the recipient as
stated in the preamble of this Agreement or to another address which may be
communicated thereby to the other Parties of this Agreement, which must receive
an immediate written notice of its receipt.
7. SPECIFIC EXECUTION
A breach or failure by the Parties to comply with any of the terms and
conditions stipulated herein shall entitle the other harmed Party to demand in
court fulfillment of the specific obligation, pursuant to Article 118 of Law No.
6,404 of December 15, 1976.
8. GENERAL PROVISIONS
8.1 No change to this Agreement shall be valid unless made in writing and
signed by all Parties.
8.2 No grace period or tolerance granted by any of the Parties to the
other, with respect to the terms of this
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instrument, shall affect this Agreement or any other the rights or
responsibilities of the Parties deriving therefrom, in any form, except strictly
pursuant to the terms of the tolerance that has been granted.
8.3 This Agreement is signed irrevocably and unconditionally and shall
enter into force on the Validity Date, to remain valid for a period of 12
(twelve) years. In the event that neither of the parties provides written
communication to the other of its lack of interest in extending the Agreement, a
minimum of 4 (four) months prior to its termination, it shall be extended for a
period of 5 (five) years, and so on successively.
8.4 This Agreement shall prevail over any other prior agreement in force
between the Parties, whether verbally or in writing.
9. AGREEMENT OF THE CONSENTING MEDIATORS
The Consenting Mediators hereby sign this Agreement to demonstrate their
complete accord with all its conditions, and promise insofar as they are able,
to ensure that it is fulfilled in its entirety.
10. RECORDING OF THE AGREEMENT
This Agreement shall be filed at the Corporation's head office and must be
accessible to all its shareholders, and in the Registered Shares Registration
Book, on the margin of the Share Record corresponding to this Agreement, and in
the respective Share Certificates, if issued, the following text shall be set
forth:
"The shares represented by this Certificate (or Record), including their
transfer or encumbrance to any kind, shall be subject to the requirements
of the Shareholders Agreement regime signed between TIB Interactiva S/A,
MLSP Comercio e Participacoes Ltda. and Xxxxxx Xxxx Xxxxx de Xxxxx, under
penalty of annulment of the transfer or encumbrance."
11. SUCCESSORS
This Agreement shall be binding on the Parties and the Consenting
Mediators, on their own behalf and on that of their successors of any kind.
12. COURT DISTRICT
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The Parties elect the court district of Porto Alegre as having
jurisdiction to settle any dispute as may arise in this Agreement, waiving any
other regardless of such privilege as may correspond thereto.
And being in due agreement, the Parties hereby sign this Agreement on 4 (four)
identical copies for an identical purpose, duly signed in the presence of 2
(two) witnesses, who also signed this.
Sao Paulo, June 15, 1999
[signature] [signature]
TELEFONICA INTERACTIVA BRASIL LTDA. MLSP COMERCIO E PARTICIPACOES LTDA.
Xxxxx X. Xxxxxxx Xxxxxx Xxxxxxxxx Xxxxxx
Manager-Representative Xxxxxxx Xxxxx Xxxxxxx
Directors
[signature]
XXXXXX XXXX XXXXX DE XXXXX
Consenting Mediators:
[signature] [signature]
NUTEC INFORMATICA S/X.
Xxxxxx Xxxx Xxxxx de Xxxxx
Xxxxxx Xxxxxxx de Xxxx
Directors
Witnesses:
1. [signature and illeg. name stamp] [signature]
XXXXXX XXXXXXXXX XXXXXX
2. [signature] [signature]
Xxxxxx [illeg.] Xxxx [illeg.] XXXXXXX XXXXX XXXXXXX
XX: 27.066.059-S SSP/SP
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The following annex to this agreement has not been included:
- Annex 1 - List of employees
Copies of the annex not included herein will be provided upon request.
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ADDENDUM TO SHAREHOLDERS' AGREEMENT
NUTEC INFORMATICA S/A
By this private instrument, the undersigned:
1. TELEFONICA INTERACTIVA BRASIL LTDA., a company with limited-liability
quotas of capital stock [sociedade por quotas de responsabilidade
limitada], with head office in the City of Sao Paulo, State of Sao Paulo,
at Xxx xx Xxxxxxxxxx, 000, 0xx xxxxx, xxxxx 00-X, having its articles of
association duly filed and registered at the Commercial Registry for the
State of Sao Paulo, enrolled in the CNPJ/MF [National File of Corporate
Entities / Ministry of Finance] under No. 03.185.736/0001-70, herein
represented by its Delegate Manager, Xx. Xxxxx X. Xxxxxxx, [name repeated
in the original], Brazilian citizen, married, lawyer, holder of Identity
Card RG [General Registry] No. 3.333.998 (SSP/SP) [Sao Paulo State
Department of Public Safety], enrolled in the CPF/MF [Individual Taxpayers
File / Ministry of Finance] under No. 000.000.000-00, resident and
domiciled in the Capital City of the State of Sao Paulo, with his office
at Xxx xx Xxxxxxxxxx, 000, 0xx xxxxx, hereinafter simply "TIB;"
2. MLSP COMERCIO E PARTICIPACOES LTDA., a business company with
limited-liability quotas of capital stock [sociedade comercial por quotas
de responsabilidade limitada], with head office in the City of Porto
Alegre, State of Rio Grande do Sul, at Rua Cel. Camisao, 237/601, Bairro
Higienopolis [district], having its articles of association duly filed and
registered at the Commercial Registry for the State of Rio Grande do Sul
under NIRE [State Registration] No. 00.000.000.000, in session on March
24, 1998, enrolled in the CNPJ/MF under No. 02.429.422/0001-02, herein
represented by its managing partners Messrs. Xxxxxxx Xxxxx Xxxxxxx,
Brazilian citizen, divorced, electronics engineer, holder of Identity Card
RG No. 4007554423 SSP-RS [Rio Grande do Sul State Department of Public
Safety] and enrolled in the CPF/MF under No. 000.000.000-00, resident and
domiciled in the City of Porto Alegre, State of Rio Grande do Sul, at Xxx
Xx. Xxxx, 000, apt. 202-B, and Xxxxxx Xxxxxxxxx Xxxxxx, Brazilian citizen,
married, electronics engineer, holder of Identity Card RG No. 8000873409
SSP-RS and enrolled in the CPF/MF under No. 000.000.000-00, resident and
domiciled in the City of Porto Alegre, State of Rio Grande do Sul, at Rua
Coronel Camisao, 237, apt. 601, herein represented by his attorney in
fact, Xx. Xxxx Xxxxxx xx Xxxxxx Xxxxxxx, Brazilian citizen, married,
lawyer, enrolled in the OAB/SP [Sao Paulo Chapter of the Brazilian Bar
Association] under No. 129.136, with his office at Xx. Xxx Xxxxxxx, 000 -
xxxxx 000, 00xx floor, hereinafter referred to as "MLSP;" and
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3. XXXXXX XXXX XXXXX DE XXXXX, Brazilian citizen, married, systems analyst,
resident and domiciled in the City of Porto Alegre, State of Rio Grande do
Sul, at Xxx Xxxxxxxxxxx xx Xxxxxxx, 000, xxx. 000, holder of identity card
RG No. 5002912995-SSP/RS and enrolled in the CPF/MF under No.
000.000.000-00, hereinafter simply "Xxxxxx,"
hereinafter referred to jointly as "Shareholders" or "Parties;" and further,
4. NUTEC INFORMATICA S/A, a corporation [sociedade por acoes] with head
office in the City of Porto Alegre, State of Rio Grande do Sul, at Xxx
Xxxxxxxx, 0000, having its articles of incorporation duly filed and
registered at the Commercial Registry for the State of Rio Grande do Sul,
enrolled in the CNPJ/MF under No. 91.088.328/0001-67, herein represented
by its [executive] Directors, hereinafter referred to simply as
"Corporation;"
5. XXXXXX XXXXXXXXX XXXXXX, Brazilian citizen, married, electronics engineer,
resident and domiciled in the City of Porto Alegre, State of Rio Grande do
Sul, at Rua Coronel Camisao, 237, apt. 601, holder of identity card RG No.
8000873409-SSP/RS and enrolled in the CPF/MF under No. 000.000.000-00,
hereinafter simply "Xxxxxx;" and
6. XXXXXXX XXXXX XXXXXXX, Brazilian citizen, divorced, systems analyst,
resident and domiciled in the City of Sao Paulo, State of Sao Paulo, at
Xxx Xxxxxxxx xx Xxxxxx, 000, xxx. 00, Morumbi [district], holder of
identity card RG No. 4007554423-SSP/RS and enrolled in the CPF/MF under
No. 000.000.000-00, hereinafter simply "Xxxxxxx" and, jointly with the
Corporation and Xxxxxx, "Intervening and Consenting Parties,"
WHEREAS, pursuant to a Stock Subscription Agreement dated June 15, 1999, to the
Corporation's Special Meeting of Shareholders held on August 5, 1999, and to the
sale and purchase of shares made between TIB and MLSP, TIB became a shareholder
in the Corporation, as holder and lawful owner of shares representing ninety-six
percent (96%) of the total capital stock of the Corporation, and MLSP became a
shareholder and lawful owner of shares representing three percent (3%) of the
total capital stock of the Corporation;
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WHEREAS, pursuant to a Commitment to Stock Sale and Purchase dated as of the
date hereof, Xxxxxx became a shareholder in the Corporation, as holder and
lawful owner of shares representing one percent (1%) of the total capital stock
of the Corporation;
WHEREAS, it is the absolute will of the parties and a business principle that in
any legal situation the minority shareholders shall at all times be assured the
equivalent to 4% of the Corporation's worth;
WHEREAS, furthermore, any entity directly or indirectly controlling the
Corporation may implement, by November 1999, a process of public offering of
capital pursuant to an "Initial Public Offering" ("IPO"); and
WHEREAS, it is the parties' desire to restate the rights and obligations
relating to such public offering of capital pursuant to the IPO process,
establishing mechanisms such as shall enable MLSP and Xxxxxx to hold an interest
in the company that shall implement such IPO process;
they have mutually agreed to enter into this Addendum to the Corporation's
Shareholders' Agreement dated June 15, 1999 ("Shareholders' Agreement"),
hereinafter referred to as "Addendum to the Agreement," pursuant to the
conditions set forth hereunder:
1. Section 3.2.2 (b) of the Shareholders' Agreement shall cease to be in effect
and the Parties agree to introduce into said Shareholders' Agreement Section
3.2.3, in the manner indicated below:
3.2.3. IPO-related Obligations:
(a) The Parties acknowledge that, by November 30, 1999, according to the
strategic plans of the controlling group of the controlling shareholder,
any entity indirectly controlling it and relevant within the same business
group may implement a process of public offering of capital and public
distribution of its shares in a country yet to be defined, a process known
as IPO (the corporation in question hereinafter referred to as "IPO
Corporation").
(b) Upon such public offering of capital and public distribution of the
IPO Corporation's shares, TIB's controlling shareholder undertakes to
remit to Brazil such funds as shall be capitalized in a company with
specific purpose ("SPE"), which shall be obligated to acquire for the
equivalent to ten million U.S. dollars (US$ 10,000,000), based on the
institutional price thereof converted from the
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Euro into U.S. dollars at the average rate of the day prior to that of the
IPO, either old shares or new shares originating from the IPO process such
as issued by the IPO Corporation. MLSP and Xxxxxx, in turn, agree to
purchase immediately all said shares which the SPE shall hold in the IPO
Corporation by virtue of the aforesaid acquisition, paying for them with
the total amount of their shares held in the Corporation.
(c) If the IPO process is not implemented by the IPO Corporation by
November 30, 1999, the terms previously agreed upon pursuant to Section
3.2.2 (b) of the Shareholders' Agreement shall remain valid among the
Parties, and this Addendum to the Agreement shall be disregarded.
(d) MLSP and Xxxxxx acknowledge that once the stock exchange process under
Section 3.2.3 (b) above is implemented, the rights and obligations under
Sections 3.1, 3.3, 3.4, and 4 (including the clauses thereunder) of the
Shareholders' Agreement shall remain fully in effect.
(e) In any circumstances, MLSP managing partners, Xxxxxx and Xxxxxxxx, and
Xxxxxx agree, if so required by the IPO Corporation, to remain as
administrative officers of the Corporation for a term of at least 24
months from the execution of the Shareholders' Agreement hereunder on June
15, 1999.
(f) After six (6) months from the placement date of the IPO Corporation's
shares and for up to twenty-four (24) months from the execution date of
the Shareholders' Agreement hereunder, MLSP and Xxxxxx have the right to
sell to TIB, which in turn is obligated to purchase, for the average price
quoted on the stock exchange over the six (6) months prior to date on
which the sale option is exercised by MLSP and Xxxxxx.
(g) Once such twenty four (24)-month term shall have elapsed from the
execution of the Shareholders' Agreement, MLSP and Xxxxxx may not sell or
otherwise transfer or pledge to third parties, whether wholly or in part,
their shares held in the IPO Corporation without first offering them, as
"Offering Party," to TIB, which shall have a first-refusal right to the
acquisition of such shares at the average price of the IPO Corporation's
shares as quoted on the day prior to the exercise of the sale option by
MLSP and/or Xxxxxx, such first-refusal right as referred to hereunder to
be exercised no later than within twenty four (24) hours from the time of
delivery of a written communication notice to the Offering Party.
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2. All other Sections and conditions of the Shareholders' Agreement which have
not been provided for hereunder shall remain valid and fully in effect.
In Witness Whereof, the Parties have entered into this Addendum to the
Agreement in four (4) counterparts of identical contents and for a sole effect,
duly executed in the presence of the two (2) undersigned witnesses.
Sao Paulo, August 5, 1999
[Signed] MLSP COMERCIO E
TELEFONICA INTERACTIVA PARTICIPACOES LTDA.
BRASIL LTDA. Xxxxxx Xxxxxxxxx Xxxxxx
Xxxxx X. Xxxxxxx (by proxy, Xxxx Xxxxxx xx Xxxxxx
Delegate Manager Xxxxxxx)
Xxxxxxx Xxxxx Xxxxxxx
Managing Partners
[Signed]
XXXXXX XXXX XXXXX DE XXXXX
Intervening and Consenting Parties:
[Signed twice]
NUTEC INFORMATICA S/A
Xxxxxx Xxxx Xxxxx de Xxxxx
Xxxxxxx Xxxxx Xxxxxxx
Directors
Witnesses:
1. [Signed]
[Stamped] [Signed]
Xxxxxx Xxxxxxx For XXXXXX XXXXXXXXX XXXXXX
XX 23.662.884-7 SSP/SP (Xxxx Xxxxxx xx Xxxxxx Xxxxxxx)
2. [Signed] [Signed]
[Stamped] XXXXXXX XXXXX XXXXXXX
XXXXXXX XXXX XXXXX
RG 25.865.889-7 SSP/SP
5
