Exhibit 3
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AGREEMENT
Intending to be bound, the Parties do hereby enter into this Agreement
("Agreement") between Carso Global Telecom, S.A. de C.V., a Mexican corporation
("Carso Telecom"), and SBC International, Inc. ("SBCI"), a Delaware corporation
(collectively, the "Parties").
R E C I T A L S
A. Since December 20, 1990, the Parties have participated in a trust (the
"Trust") through which they originally held Telefonos de Mexico, S.A. de C.V.'s
("Telmex") capital stock in the form of "AA" Shares (the "AA Shares"). Through
the Trust, a combination of Mexican investors, including Carso Telecom, have
beneficially owned 51% of the AA Shares, and SBCI had beneficially owned 24.5%
of the "AA" Shares.
B. On November 14, 1990, the Parties entered into an agreement, as amended from
time to time (the "Original Joint Venture Agreement") to govern their
relationship as participants in the Trust and to ensure voting control of
Telmex.
C. On April 27, 2000, the Parties entered into a Conversion and Termination
Agreement with France Telecom Financiere Internationale, to permit the
conversion of its Converted AA Shares (as therein defined), terminate the
Original Joint Venture Agreement and the Trust vis a vis France Telecom
Financiere Internationale, and to govern certain rights in connection with such
transaction.
D. The Parties now desire to terminate the Original Joint Venture Agreement, as
amended, and the Trust and to create a new joint venture agreement (the "New
Joint Venture Agreement") to govern the Parties' relationship within Telmex and
to amend the Telmex By-laws pursuant to this Agreement.
NOW THEREFORE, in consideration of the representations, warranties, covenants
and agreements herein contained, and of the mutual benefit to be derived
herefrom, the Parties hereto agree as follows
1. Management of Telmex.
A. The responsibility for the management of Telmex shall reside with
the Telmex Board of Directors (the "Board" or "Board of Directors"). However,
the Board will seek input on various matters from committees the Board may
establish, pursuant to the By-laws, from time to time, as well as from the
Executive Committee.
B. The Director General of Telmex shall be responsible for the
day-to-day administration of the business of Telmex and shall be accountable to
the Telmex Board of Directors.
2. Board Composition; Committees.
A. The Board of Directors of Telmex will continue to exist in
accordance with the By-laws of Telmex as amended.
X. Xxxxx Telecom shall nominate candidates to assume thirteen (13)
positions on the Board of Directors. SBCI shall nominate candidates to assume
four (4) positions on the Board of Directors. The Parties anticipate that the
Board of Directors shall be subsequently reduced to thirteen (13) members,
whereby at such time SBCI shall be entitled to nominate candidates to assume two
(2) positions on the Board of Directors. Each of the Parties agrees to vote its
"AA" Shares in favor of the other Parties' candidates.
C. In the event the "AA" shareholders are unable for any other reason
to elect seventeen (17) members of the Board, then the allocation of Board
members among the Parties shall change accordingly but shall maintain, so far as
possible, the same proportions as outlined in paragraph B above.
D. The Board will act by majority vote.
E. Executive Committee. The executive committee of the Board of
Directors (the "Executive Committee") will continue to exist in accordance with
and be empowered by the By-laws of Telmex as amended and provided herein. The
Executive Committee will be the principal consultative body of the Board and
will be the body through which all major strategic, operational, financial and
investment decisions are reviewed and recommended to the Board. The Executive
Committee shall meet whenever necessary but at least prior to each Board of
Directors meeting, unless otherwise agreed by the Parties. The matters for
Executive Committee review and discussion shall be those items set forth in
Attachment A.
At least five (5) business days written notice (by facsimile and
courier) shall be given to each of the Executive Committee members of any
meeting of the Executive Committee, provided always that a shorter period of
notice or no notice may be given if approved by all Executive Committee members.
Any such notice shall contain, inter alia, an agenda identifying in reasonable
detail all of the matters to be discussed at the meeting and shall be
accompanied by copies of any relevant papers to be discussed at the meeting. The
Executive Committee shall have all of the power to operate and manage Telmex
except for those powers the Board expressly reserves to itself. The Executive
Committee shall make recommendations on all matters on which the By-laws call
for Executive Committee review. Each Party agrees that it will cause its
Executive Committee members to use their best efforts to achieve a common
position on matters presented to the Executive Committee. Should the Parties be
unable to reach a common position or it is anticipated by either Party that a
common position may not be reached at an Executive Committee Meeting on any
matter properly noticed pursuant to this paragraph E, they shall arrange a
conference between the Chief Executive Officers of Carso Telecom, and SBCI or
their respective executive designees. If the matter is not resolved by the Two
Chief Executive Officers / Director Generals before the next regular scheduled
Board meeting where such matter will be discussed, the matter shall be resolved
by majority decision by the Executive Committee. If an agenda item for an
Executive Committee Meeting was not properly noticed pursuant to this paragraph
E and the Parties are not able to reach a common position on such agenda item
prior to the next regular scheduled Board meeting a decision on the matter shall
be postponed until the next regular scheduled Executive Committee Meeting or
until a common position is reached or until notice is cured pursuant to this
paragraph E, whichever comes first.
Notwithstanding the above, if it is determined by Carso Telecom in
good faith that a matter subject to Executive Committee review cannot wait until
the next regularly scheduled Executive Committee Meeting for its review and
consideration, because time is of the essence, such specific matter shall be
discussed with SBCI prior to any action being taken by the Company regarding the
matter and each Party's decision shall be reflected in the minutes of the next
regularly scheduled Executive Committee Meeting.
F. The Board shall not consider or vote on the Executive Committee
Matters without a recommendation from the Executive Committee except for any
case in which the Executive Committee did not achieve a common position
regarding an agenda item pursuant to paragraph E above.
G. The Executive Committee will consist of four (4) members, three (3)
of whom will be appointed by Carso Telecom, and one (1) of whom will be
appointed by SBCI.
3. Compensation for Services.
The Parties shall work with and assist the Telmex management to
enhance the long-term prosperity of Telmex. The Parties will provide for a
contract between each of them and Telmex which the Parties will be compensated
on a commercially reasonable basis for services rendered to Telmex. The Parties
agree to cause Telmex to execute the attached Management Services Agreements
(MSA) (Attachment B) under which for five (5) years SBC International -
Management Services, Inc. (SBCI-MSI) will provide management services to Telmex.
The Party's shall subsequently attach to this Agreement as Attachment C a MSA
for which Carso Telecom shall be compensated for the services it provides to
Telmex. SBCI-MSI and Carso Telecom will be compensated at least $10 million U.S.
Dollars per annum each for the services provided by SBCI-MSI expatriates and
Carso Telecom for the initial 2-year term of the MSA's.
4. Transfers of Shares.
A. Subject to applicable laws and pursuant to the right of first offer
set forth below the Parties shall have the right to freely transfer their "AA"
Shares. Furthermore nothing shall restrict the ability of a shareholder to: (i)
convert any or all of its "AA" Shares to "L" shares in accordance with the
By-laws and to transfer or sell the "L" shares and provided further that the
Parties shall, subject to any limits as to percentages provided for by the
by-laws, insure sufficient "L" Shares are available to allow any Party to
convert "AA" Shares to "L" Shares upon request of the Party seeking to convert;
or (ii) the ability of a Shareholder to create or permit to exist any pledge,
lien, or other encumbrance over any AA Shares held by that Shareholder (a
"Lien"), or to agree, conditionally or otherwise, to do any of the foregoing
(and for the purposes of this article "dispose" shall be deemed to exclude all
or any of the above), provided further that, to be valid any such Lien should
provide that, in case of any disposition of the AA Shares, the right of first
offer to the other Shareholder is fully complied with.
B. Notwithstanding the right of first offer provision set forth below,
a Shareholder may transfer any of its "AA" Shares to:
(i) any other Shareholder or
(ii) an Affiliate of the transferring Shareholder who agrees in
writing to be bound by the provisions of this Agreement.
Affiliate as used in this Agreement shall mean, as to any person,
any other person that controls, is controlled by or is under
common control with such person. For purposes of this definition
the term "control" of a person shall mean the possession, direct
or indirect, of the power to vote 51% or more of the voting stock
of such person or the direct or cause the direction of the
management and policies of such person or to direct or cause the
direction of the management and policies of such person, whether
through the ownership of such voting stock, by contract or
otherwise.
C. Save for transfers permitted under paragraphs A and B if a
Shareholder desires to sell or otherwise dispose of any of its "AA" Shares
("Seller"), the Seller shall give notice to the other Shareholder in writing
("Transfer Notice") of such desire together with details of the purchase price
and other material terms requested by the Seller. A Transfer Notice shall,
except as hereinafter provided, be irrevocable.
D. On receipt of the Transfer Notice, the other Shareholder
("Continuing Shareholder") shall have the right to purchase, in aggregate, all
(but not some only) of the Seller's "AA" Shares being sold at the purchase price
specified in the Transfer Notice. If SBCI is prohibited by Mexican Law from
purchasing all of the Seller's "AA" Shares SBCI shall have the right to purchase
Seller's "AA" Shares through a third party, trust or other entity legally
allowed to hold "AA" Shares.
E. The Transfer Notice will invite the Continuing Shareholder to give
written notice ("Acceptance Notice") to the Seller within thirty (30) days (for
the purposes of this Agreement the term "days" shall mean calendar days) of
receipt of the transfer notice ("Acceptance Period") whether it is willing to
purchase all of the Seller's "AA" Shares. For the avoidance of doubt, the
Acceptance Notices from the Continuing Shareholder must account for the purchase
and sale of all of the Seller's "AA" Shares being sold.
F. The Continuing Shareholder shall become bound (subject only to any
necessary approvals of its shareholders in general meeting and/or of its Board
or of any competent regulatory authorities, including anti-trust commissions or
entities in any required jurisdiction) to purchase the Seller's Shares on giving
the Acceptance Notice. In such event, completion of the sale and purchase of the
Seller's Shares shall take place within sixty (60) days after the latter of the
giving of such notice or, after the obtaining of necessary approvals of any
competent governmental, regulatory or other authorities (including, without
limitation, the approval of any governmental, regulatory or other authorities
which have jurisdiction over any tangible or intangible asset in which Telmex
may at the relevant time be directly or indirectly interested). Notwithstanding
the foregoing, such notice and right of the Continuing Shareholders to acquire
the Seller's Shares shall cease to have effect if:
(i) any necessary approval of the Continuing Shareholder's
shareholders in general meeting and/or its appropriate board has
not been obtained within the said period of sixty (60) days or
(ii) any necessary approval of any competent governmental, regulatory
or other authority has or have not been obtained within one
hundred and eight (180) days after the giving of such notice or
(iii) if earlier than the expiry of such latter period, any such
authority has conclusively refused to grant any such approval and
no appeal or other request for review is timely filed and remains
pending.
G. If:
(i) at the expiration of the Acceptance Period the aggregate number
of Seller's Shares to be purchased by the Continuing Shareholders
is less than the total number of Shares Seller desires to sell;
or
(ii) the deadlines set forth in paragraph F have not been satisfied,
the Seller shall be entitled to transfer all of the "AA" Shares of the
Seller specified in the Transfer Notice on a bona fide arm's length
sale to a third party purchaser at a price being not less than the
purchase price specified in the Transfer Notice, provided that such
transfer shall have been completed within a period of one hundred and
eighty (180) days after the latter of:
(i) the date of the Transfer Notice; or
(ii) the date the Continuing Shareholder's right to acquire the
Seller's Shares shall have ceased to have effect pursuant to
subparagraph B, the date on which such notice ceased to have
effect;
and further provided that:
(iii) third party purchaser shall have agreed in advance in writing to
sign and be governed by a shareholder agreement with provisions
in compliance with this Agreement; and
(iv) all necessary approvals of governmental or applicable authority
shall have been obtained.
The Continuing Shareholder shall be permitted to confirm that the bona fide
offer from the third party purchaser is firm and subject only to conditions that
could reasonably be expected to be satisfied, by (i) review of the documents
involved in such bona fide offer and (ii) requiring that the proposed transferee
submit evidence reasonably satisfactory to the Continuing Shareholder of
financing for such purchase.
H. Should Carso Telecom transfer its Telmex "AA" shares to a third
party so that Carso Telecom no longer directly or indirectly owns the majority
of the "AA" shares, SBCI shall have a tag along right which will permit SBCI, in
its discretion, to sell to the third party buyer and requires the third party
purchaser to acquire the same portion of its "AA" Shares as Carso Telecom is
selling under the same terms and conditions (the "Tag-Along Shares"). SBCI shall
exercise its rights under this paragraph H by indicating in writing to Carso
Telecom that SBCI intends to include the Tag-Along Shares in the Seller
contemplated transfer.
I. Should Carso Telecom transfer its Telmex "AA" shares to a third
party so that Carso Telecom no longer directly or indirectly owns a majority of
the "AA" shares, Carso Telecom shall have a drag along right which will permit
Carso Telecom, in its discretion, to require SBCI to sell the same portion of
its "AA" shares as Carso Telecom is selling to the third party under the same
terms and conditions (the "Drag-Along Shares"). Carso Telecom shall exercise its
rights under this paragraph I by indicating in writing to SBCI that Carso
Telecom intends to include the Drag-Along Shares in its contemplated transfer.
5. Confidentiality and Publicity.
Subject to obligations to make this Agreement known under any stock
exchange rules or other legal requirements, so long as this Agreement is in
effect and for a period of five years after termination for any cause, each
Party agrees, after receipt of any specific information, to maintain in
confidence such information and to use solely for the purpose of the
transactions contemplated herein, all documents or information of any kind
pertaining to Telmex or the Parties, which may have been created or communicated
in a confidential manner by the other Parties, by Telmex, or by the Mexican
Government. Each Party will cause its consultants, agents and employees to
comply with the obligations it has assumed hereunder.
The Parties agree that they will not make any public announcements or
other disclosure of this Agreement, its purpose or contents, or of any
activities conducted pursuant hereto, without prior mutual consultation and
consent, except as may be required by law.
6. Certain Immediate Actions.
The Parties agree:
A. that the by-laws (estatutos) of Telmex shall be amended to
substantially reflect the content of this Agreement by no later than April 30,
2001 and, for such purposes, a Special Meeting of the holders of "L" Shares, a
Special Meeting of the holders of "AA" Shares and a General Meeting of
shareholders of Telmex will be called and held.
B. to terminate the Trust upon establishment of the Second Trust and
will thereafter be of no further force and effect.
C. to execute and deliver any further document or instrument that the
trustee of the Trust may require to formalize such termination.
D. that SBCI will establish, as soon as practicable, the Second Trust
attached herein as Attachment D
E. to terminate the Original Joint Venture, as of the date this
Agreement becomes effective and will thereafter be of no further force and
effect.
F. to execute the Management Service Agreements, as attached herein as
Attachment B.
7. Affiliates and Assignment.
The Parties acknowledge that each may assign its rights and
obligations under this Agreement to one or more Affiliated companies in their
respective corporate groups. This Agreement shall bind the Parties and their
respective successors and assigns. Except as expressly provided herein, no Party
shall be entitled to assign its interest in this Agreement without the express
written consent of the other Party.
8. Governing Law.
Except for the procedural rules set forth in Clause 9 relating to
arbitration, this Agreement shall be governed by and construed in accordance
with the laws of Mexico; provided, however, that if any term of any obligation
is unenforceable but the performance of such term or such obligation does not
violate the law, governmental regulations, or public policy of Mexico, then in
any arbitration pursuant to Clause 9 the tribunal shall apply in respect of the
terms of such obligations and its enforcement and/or compensation for the breach
thereof, internationally acceptably contract law principles in such a manner as
to give full effect to such obligation and intent of the Parties thereto.
9. Good Faith; Cooperation.
The Parties shall promptly do and perform such further acts, matters,
or things and execute and deliver all further instruments required by law or
which may be reasonably requested by any Party to establish, maintain, and
protect the respective rights and remedies of any Party and to carry out and
effect to the intent and purposes of this Agreement.
10. Arbitration.
Any controversy or claim arising out of or relating to this Agreement
or any breach thereof that has not been resolved between the Parties after good
faith discussions may be settled by arbitration. The arbitration shall be held
in Mexico City, Mexico under the Rules of Conciliation and Arbitration of the
International Chamber of Commerce by three arbitrators appointed in accordance
with said rules. The arbitration shall be conducted in Spanish and English. The
arbitral award shall be final and binding on the Parties.
11. Notices.
All communications hereunder shall be in writing and shall be deemed
effectively given on day after being sent by telecopy or courier, confirmed by
letter as follows:
Carso Global Telecom, S.A. de C.V.
c/o Chief Financial Officer
Xxxxxxxxxxx Xxx Xx. 0000, Xxxxxxx Xxxx Xxxxx, 00000
Xxxxxx, D. F.,
Telecopy: 000-000-0000
Attention:
SBC International, Inc.
000 X. Xxxxxxx, Xxxx 00-X-00
Xxx Xxxxxxx, Xxxxx 00000
Telecopy: 000-000-0000
Attention: Chief Executive Officer
12. Amendments; Entire Agreement; Language.
This Agreement may not be amended or modified except by a written
instrument signed by the Parties. This Agreement supersedes all prior agreements
or understandings with respect to the subject matter hereof among or between any
of the Parties, including, among others the Original Joint Venture Agreement and
the Trust. This Agreement has been prepared in both English and Spanish
versions, and each version is equally authoritative.
13. Representations, Covenants, and Warranties.
Each Party covenants, represents, and warrants with respect to itself
that:
A. It is of good standing and has full power and authority to enter
into and perform this Agreement and any other agreement or instrument to be
executed pursuant t o this Agreement and that this Agreement constitutes, and
such agreements and instruments will constitute, binding obligations on such
Party in accordance with their respective terms and the execution and
performance of this Agreement and all related agreements will not contravene or
breach any obligations, agreements, governmental ruling, or laws by which such
Party is bound.
B. Such Party is not a party to any litigation or subject to any
governmental investigation or proceedings that could in any way affect such
Party's ability to enter into or perform the terms and conditions of this
Agreement.
C. The execution, delivery, and performance of this Agreement by such
Party shall not, with or without the giving of notice or passage of time, or
both, conflict with, result in a breach of, default or loss of rights under, or
result in the creation of any lien, charge or encumbrance pursuant to any
provisions of such Party's incorporation documents or any franchise, mortgage,
deed of trust, lease, license, agreement, understanding, law, order, judgment,
or other restriction to which such Party or any subsidiary or holding company of
such Party is a party or by which any of them may be bound or affected which
would materially adversely affect its ability to perform its obligations under
this Agreement.
14. Compliance with Applicable Law.
No Party shall be required to take any action under this Agreement to
the extent that such action would violate present or future applicable law,
including, without limitation, legal or administrative provisions in the United
States of America and provisions in force in Mexico or in the future enacted in
Mexico to govern Telmex, its operations, governmental authorizations or the duly
authorized Telmex By-laws as in effect from time to time. In the event that any
Party in good faith concludes that taking an action required by this Agreement
would cause it to violate applicable law, it shall give prompt and detailed
notice thereof to the other Parties and shall consult in good faith with other
Parties so as to arrive at a means of carrying out to the maximum extent
possible the intent of this Agreement without violation.
15. Severability.
A holding by any court or other tribunal of competent jurisdiction
that any provision of this Agreement is invalid or unenforceable shall not
result in invalidation or unenforceability of the entire Agreement and all
remaining terms shall remain in full force and effect. Following any such
holding, the Parties shall negotiate in good faith new provisions to restore
this Agreement as nearly as possible to its original intent and effect.
16. Relation of Parties.
Nothing herein shall cause the Parties to be treated as partners,
principals and agents. None of the Parties shall have any authority to bind the
others to any obligation without its prior written consent.
17. Further Assurances.
Each party hereto shall do and perform or cause to be done and
performed all such further acts and things and shall execute and deliver all
such other agreements, certificates, instruments, and documents as any other
Party hereto may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
18. Indemnification.
Each Party hereto shall indemnify and hold harmless each other Party
from and against all claims, liabilities, actions, suits, proceedings,
assessments, judgments and losses, including interest, penalties reasonable
attorneys fees, and reimbursements arising out of or resulting from the breach
by such Party of any representation, warranty, covenant, obligation, or
agreement of such Party contained in this Agreement or in any other associated
agreement.
19. Condition.
This Agreement shall be in full force and effect upon the
establishment of the Second Trust as contemplated under Article 6.
20. Termination.
A. This Agreement is made for a term of five (5) years (the "Term")
and shall automatically be renewed for successive two (2) year terms under the
same terms and conditions, unless any Party shall seek to terminate it on six
months notice before the end of the Term or any successive two (2) year term.
B. Before the end of its Term, this Agreement may be terminated only
upon mutual consent of all the Parties. It shall
also be terminated automatically upon occurrence of any of the following:
(i) dissolution and liquidation of Telmex; or
(ii) material breach by one of the Parties, which will allow
termination as to that breaching Party or
(iii) the conversion by any of the Parties of all its Series "AA"
Shares into Series "L" Shares.
C. Upon termination of this Agreement before expiry of its term, all
rights and obligations under this Agreement shall conclude and become
ineffective except that the rights and obligations of any Party having accrued
prior to such termination shall not be affected thereby.
Executed this 20th day of December 2000, by the undersigned authorized
officers of the Parties.
CARSO GLOBAL TELECOM, S.A. de C.V.
By: /s/ Xxxxxxx Xxxxxx Acra
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Name: Xxxxxxx Xxxxxx Acra
Title: Attorney-in-Fact
SBC International, Inc.
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: President
Attachment A
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Matters for the Executive Committee
o Any amendment, change or other modification or restatement of the by-laws.
o The issuance, authorization, cancellation, alteration, modification,
reclassification, redemption or any change in, of, or to any equity
security of the Company or any of its subsidiaries.
o The transfer or other disposition (other than inventory, obsolete assets or
transfers in the ordinary course of business of the Company, or any other
subsidiary) of, or placing any encumbrance (other than encumbrances arising
by operation of law) on, any asset of the Company or any of its
subsidiaries with a value in excess of $300,000,000 (Three Hundred Million
Dollars).
o Entry into a new line of business, or the acquisition of any interest in,
another person or entity by the Company, or its subsidiaries for or in an
amount in excess of $100,000,000 (One Hundred Million Dollars).
o Discussion of annual capital expenditure budget. Quarterly update at Ex-Com
with discussion and consideration of deviations or requests for increases
of said budget.
o Review and consideration of any transaction regarding debt, loans, or
borrowing of the Company or its subsidiaries in excess of $300,000,000
(Three Hundred Million Dollars) or any new revolving credit facility of the
Company or any of its subsidiaries permitting aggregate borrowing at any
one time outstanding to exceed $300,000,000 (Three Hundred Million Dollars)
of new indebtedness.
o Discussion of business plan or annual budget. Ex-Com review of actual
results to budget and discussion of deviations or requests for increases of
said budget or business plan.
o Review and consideration of the Director General of the Company.
o A merger, consolidation or other business combination effecting the Company
or its subsidiaries.
o Entering into any contracts or transactions, with or for the direct or
indirect benefit of an "AA" shareholder or one of its affiliates not within
the policy guidelines approved by the Executive Committee.
o Discussion of Company dividend policy.
o The transfer of trade names, trademarks, and the goodwill associated
therewith.
Attachment B
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MANAGEMENT SERVICES AGREEMENT
Between
SBC INTERNATIONAL MANAGEMENT SERVICES, INC.
A corporation duly organized under the laws of the State of Delaware, United
States of America, with headquarters in Wilmington, Delaware, USA, hereinafter
"SBCI-MSI", with Permanent Establishment in Mexico. Establishment in the terms
provided in the Income Tax Law with address at Parque Xxx 000-00xx xxxxx,
Xxxxxxx Xxxxxxxxxx 00000 Xxxxxx, D.F.
and
TELEFONOS DE MEXICO, S.A. DE C.V.
A corporation duly organized under the laws of the United Mexican States, with
its principal place of business in Mexico City, D.F., hereinafter "TELMEX".
DECLARATIONS
I. SBCI-MSI declares:
a) That it is a corporation organized under the laws of the State of
Delaware, United States of America.
b) That it is mainly involved in investment in telecommunications
services and their provision worldwide.
c) That it has the resources needed to fulfill its obligations
pursuant to this agreement.
II. TELMEX declares:
a) That it is a Company organized under the laws of the Mexican
Republic with place of business at Parque Xxx Xx. 000, Xxx.
Xxxxxxxxxx, Delegacion Xxxxxxxxxx, X.X. 00000 Xxxxxx, X. F.
b) That its corporate purpose, generally, is to provide all types of
services and products connected with telecommunications.
c) That it is its wish to obtain the services SBCI-MSI can provide
with the purpose of improving its operations.
CLAUSES
FIRST. SBCI-MSI hereby agrees to provide TELMEX and its subsidiaries specialized
professional counseling and advisory services in all or any one of the following
areas (details of these counseling and advisory services shall be determined by
mutual agreement):
1. Evaluation and counseling concerning material management decisions of
both TELMEX and its subsidiaries.
2. Counseling concerning labor negotiations.
3. Counseling referring to performance of material daily operations of
Telmex and its subsidiaries.
4. Counseling connected with technical, administrative and financial
planning.
5. Counseling in the subject matter of introduction of systems for
management and operational control.
6. Counseling in the matter of design and planning of investments
required for modernization of the technical infrastructure.
7. Counseling pertaining to policies in the field of rates, business
relations and regulatory efforts.
8. Counseling as to the establishment of network construction procedures.
9. Generally, counseling concerning reorganization, modernization and
restructuring of TELMEX and its subsidiaries.
Hereinafter, these services shall be called "THE SERVICES". In presentation of
THE SERVICES, SBCI-MSI shall only provide information approved for a general
export license not requiring written guarantees as the US Department of Commerce
provides.
SECOND: Only TELMEX or its Subsidiaries shall use the information and materials
transferred by SBCI-MSI. These shall not be assigned, resold, licensed or in any
other way transferred to another individual or entity except as provided herein.
The information and materials shall be the exclusive property of SBCI-MSI, or as
the case may be, of its subsidiaries, affiliates, branch offices or any other
entity of the SOUTHWESTERN XXXX group, subject to TELMEX's right to use the
information and materials in its own operations in Mexico. Telmex acknowledges
that SBCI-MSI is subject to United States Export Control laws and therefore
agrees that no information or material received from SBCI-MSI or its affiliates
shall be exported without SBCI-MSI's written consent.
1. The information and materials SBCI-MSI provides TELMEX (including but
not limited to documents, data, drawings, designs, instructions,
specifications and other information) which are classified by SBCI-MSI
as confidential and marked or identified as confidential are provided
to TELMEX in the understanding that these are confidential. These
shall neither be reproduced nor disclosed to third parties in any way
whatsoever nor used by TELMEX for any purpose other than the execution
of the transactions considered herein. Especially, such documents and
data shall not be available to any companies or persons other than
TELMEX's employees, agents or subcontractors. TELMEX shall take the
steps necessary to ensure that any such companies or persons having
access to the documents or data shall keep them confidential.
2. Taking into consideration the large investment SBCI-MSI has made to
develop the information and materials; the market's high competition
level, the proprietary nature of the information and the risk of
losing SBCI-MSI's proprietary rights because of disclosure of the
information to third parties, TELMEX agrees to maintain confidential
the information and materials classified by SBCI-MSI as confidential
for a five-year period after termination of this agreement or at an
earlier date if this information or materials become of public domain
through legal means.
3. Upon termination of this agreement by reason of TELMEX's
non-fulfillment, TELMEX shall return to SBCI-MSI all the documents,
data and other materials provided by SBCI-MSI or collected by TELMEX
from the information and materials thus provided and in TELMEX's
possession or under its control. TELMEX shall not be entitled to keep
any copy, excerpts or translations thereof.
4. The parties agree that because TELMEX develops many activities through
its subsidiaries, TELMEX is hereby authorized to disclose the
information and materials, including confidential information and
materials, to its subsidiaries. This clause shall be applied to
TELMEX's subsidiaries when these subsidiaries receive the information
or materials. TELMEX shall take the necessary steps to ensure than any
subsidiary company having access to the information or materials shall
comply with its obligations pursuant to this agreement. For the
purposes of this agreement, TELMEX's subsidiaries shall be those
corporations in Mexico in which TELMEX owns more than 50 per cent of
their capital stock or any corporation where TELMEX has voting control
in any shareholders' meeting. Concerning companies that cease to be
TELMEX's subsidiaries, TELMEX shall take the necessary steps to ensure
that companies with access to the documents or data return them to
TELMEX and that these companies abide by the confidentiality
obligation set forth in this clause.
THIRD: SBCI-MSI shall provide THE SERVICES with its own resources located in
Mexico City. The services requiring resources from other sources or SBCI-MSI
subsidiaries shall be contracted separately and additionally to this agreement.
FOURTH: Under this agreement, TELMEX agrees to pay SBCI-MSI, a total annual
amount of TEN MILLION US$ ($10,000,000,00 US$) plus value added tax for the
initial 2-year term of this Agreement. TELMEX shall make this TEN MILLION US$
($10,000,000.00 US$) payment to SBCI-MSI plus value added tax in a one-time
payment on February 28 of each year through a bank transfer or cable transfer
sent directly to the corporate bank account, payable in United States Dollars.
SBCI-MSI has in Mexico or any other account specified by SBCI-MSI. In the event
TELMEX requires services not included in this agreement, SBCI-MCI shall charge
an additional amount to be agreed upon by the parties. Six months prior to the
second anniversary of this Agreement the Parties will consult and use best
efforts to agree on compensation to be paid SBCI-MSI for the remaining term of
the Agreement. Six months prior to the expiration of this agreement the Parties
will consult and use best efforts to agree on further services and the
compensation to be paid SBCI-MSI.
In the event TELMEX makes the payments in pesos, TELMEX shall pay SBCI-MSI a
sufficient amount in Mexican pesos to allow SBCI-MSI to purchase the total
amount of US dollars specified in the first paragraph of this clause.
FIFTH. SBCI-MSI shall be solely responsible for all the salaries, benefits,
taxes and expenses of its employees. TELMEX agrees that at the request of
SBCI-MSI, TELMEX shall provide adequate information and cooperation to SBCI-MSI
so that SBCI-MSI can fulfill its obligations pursuant to this agreement.
SIXTH: This agreement shall be in effect during the period starting on January
1st, 2001 and ending on December 31st, 2005.
This Agreement may be terminated by either Party by giving four (4) months
written notice if SBC International Inc. or any of its Affiliates (as Affiliates
is defined in the New Joint Venture Agreement) ceases to hold shares, whether
directly or indirectly in TELMEX.
SEVENTH. Nothing herein shall be construed to be a license on any patent,
trademark, trade name, operating practices or any other copyright property of
SBCI-MSI or any holding company, controlled by or under common control with
SSCI-MSI. TELMEX's use of any patent, copyright, trademark, trade name,
operating practice or any other copyright property of SBCI-MSI or any holding
company, controlled by or under common control with SBCI-MSI shall be covered by
a separate license agreement. Any remuneration provided for this separate
license agreement shall be in addition to the remuneration provided in this
agreement.
EIGHTH: The parties shall not be liable for loss or damages resulting from any
delay in fulfillment or non-fulfillment of any of their obligations herein when
this delay is due to force majeur. They shall not be liable if the delay is on
account of compliance with laws, regulations, orders or instructions from any
governmental, federal, state or municipal authority of the United States of
America or Mexico, or if it is by reason of amendment to any one of these laws,
regulations, orders or instructions that might affect the obligations of the
parties under this agreement.
NINTH: The parties agree to hold each other harmless from any claim or liability
they might be liable to as a result of acts performed or omitted by the other
party.
TENTH: For interpretation and fulfillment of this agreement, the parties
expressly agree to submit to the laws of the territory and courts of Mexico
City, D.F., waiving the application of any other law or jurisdiction of any
court that might have jurisdiction over them by reason of their current or
future address.
This agreement is drawn in two counterparts and undersigned in Mexico City,
Federal District on January 2nd, 2001.
SBC INTERNATIONAL TELEFONOS DE MEXICO, S.A. DE CV.
MANAGEMENT SERVICES INC.
------------------------------------- --------------------------------
By: Xxxx Xxxxx By: Ing. Xxxxx Xxxxx Xxxxx
President SBCI-- Mexico Director General
Attachment C
------------
CONTRATO DE PRESTACION DE SERVICIOS DE OPERATION Y ADMINISTRACION QUE CELEBRAN
POR UNA PARTE CARSO GLOBAL TELECOM, S.A. DE C.V., EN LO SUCESIVO "LA PRESTADORA"
REPRESENTADA POR EL SENOR LICENCIADO XXXXXXXXX XXXXXX XXXX, Y POR LA OTRA PARTE
TELEFONOS DE MEXICO, S.A. DE C.V., EN LO SUCESIVO "TELMEX", REPRESENTADA POR EL
SR. INGENIERO XXXXX XXXXX XXXXX, DE ACUERDO CON LAS SIGUIENTES DECLARACIONES Y
CLAUSULAS.
DECLARACIONES
1. "LA PRESTADORA" declara:
(a).- Ser una sociedad mercantil constituida conforme a las leyes de la
Republica Mexicana y tener como domicilio el ubicado en Xxxxxxxxxxx Xxx 0000,
Xxxxx 00 X.X., Xxx. Xxxx Pobre, Delegacion Tlalpan, Mexico, D.F.
(b).- Tener como objeto social, entre otras actividades, promover, organizar y
administrar toda clase de sociedades tanto mercantiles como civiles;
proporcionar servicios administrativos, de organizacion, fiscales, legales, y de
asesoria a empresas.
(c).- Que cuenta con los elementos necesarios para la debida prestacion de los
servicios objeto del presente contrato.
2. "TELMEX" declara:
(a).- Ser una sociedad mercantil, constituida conforme a las leyes de la
Republica Mexicana y tener como domicilio el ubicado en Parque Via No. 190: Col.
Xxxxxxxxxx, Delegacion Xxxxxxxxxx, X.X. 00000, Xxxxxx, X.X.
(x).- Tener como objeto social, de un modo general, construir, instalar,
mantener, operar y explotar una red publica telefonica y de telecomunicaciones
para prestar el servicio publico de conduccion de senales de voz, sonidos,
datos, textos e imagenes, a nivel local y de larga distancia nacional e
internacional y el servicio publico de telefonia basica; prestar y recibir toda
clase de servicios de asesoria y asistencia tecnica, cientifica y administrativa
y celebrar cualquier acto o contrato que se relacione con los objetos sociales y
que sea licito para una sociedad anonima.
(c).- Que desea obtener los servicios que le proporcionara "LA PRESTADORA" con
el objeto de llevar a cabo sus operaciones en la mejor forma posible.
CLAUSULAS
PRIMERA.- Por medio del presente contrato "LA PRESTADORA" se compromete a
proporcionar a "TELMEX" los servicios de consultoria y asesoria en materia de
administracion y operacion que a continuacion se especifican:
1. Evaluacion de todas y cada una de las direcciones, puestos y personas, tanto
de "TELMEX" como de todas sus filiales.
2. Revision, en su caso, reestructuracion de los contratos colectivos de
trabajo.
3. Ejecucion de la operacion diaria.
4. Planeacion Tecnica, Administrativa y Financiera.
5. Implantacion de sistemas y controles administrativos y operacionales.
6. Planeacion y negociacion de las inversiones, optimizando el rendimiento
obtenido de los recursos de la empresa:
(a) Optimizacion del diseno de red externa.
(b) Revision y optimizacion de inversiones en equipo y red exterior.
7. Elaboracion de los programas de transformacion de "TELMEX" para eficientar
la operacion, modernizarla y hacer crecer agresivamente la planta telefonica
de "TELMEX", de todas suertes que se mejore la calidad de los servicios a
niveles internacionales.
8. Reestructuracion de las politicas en materia tarifaria, comercial, tecnica y
de servicios.
9. Elaboracion de planes de reubicacion del personal.
10. Creacion y manejo del Instituto Nacional Tecnologico de Telmex, A.C.
11. Realizacion de planes de las inversiones inmobiliarias que reduzcan
sustancialmente su numero e importes.
12. Establecimiento de las normatividades para las construcciones.
13. Evaluacion de las alternativas que se den dentro de la realizacion de los
estudios tecnico-economicos que se efectuen en la empresa en las diferentes
direcciones de operacion.
En general, la regeneracion, reorganizacion y reestructuracion de "TELMEX" y
filiales con la planeacion, ejecucion y supervision de todas areas de la
empresa.
Estos servicios en lo sucesivo quedaran designados como "LOS SERVICIOS".
SEGUNDA.- "TELMEX", no delega a "LA PRESTADORA", en forma alguna facultades que
involucren xx xxxx de decisiones sobre la direccion de la empresa, quedando a la
entera discrecion y bajo la exclusiva responsabilidad del Consejo de
Administracion, de la Direccion General y del Comite Ejecutivo de "TELMEX" xxxxx
las decisiones sobre la direccion de la empresa, sin injerencia alguna por parte
de "LA PRESTADORA".
TERCERA.- "LA PRESTADORA" proporcionara "LOS SERVICIOS" con los elementos
propios con que cuenta o a traves de los que pueda contratar con terceras
personas y que, en este "ultimo caso, sera bajo su estricta responsabilidad.
CUARTA.- "TELMEX" se obliga a pagar a "LA PRESTADORA" por la prestacion de "LOS
SERVICIOS" un monto total equivalente en pesos mexicanos a $20,000,000.00 U.S.
Dolares (VEINTE MILLONES DE DOLARES DE LOS ESTADOS UNIDOS DE AMERICA 00/100),
mas el Impuesto al Valor Agregado (I.V.A.).
Esta contraprestacion sera pagada por "TELMEX" a "LA PRESTADORA" en una sola
exhibicion a mas tardar el dia 28 de febrero de 2001.
Para determinar el monto en pesos mexicanos de este pago, se utilizara el tipo
de cambio libre de venta de dolares de los Estados Unidos de America aplicable
para calcular el equivalente en moneda nacional del principal o intereses de los
Bonos de la Tesoreria de la Federacion "TESOBONOS" que xxxx pagaderos en la
misma fecha en que "TELMEX" realice a "LA PRESTADORA" el pago convenido.
En el caso de que "TELMEX" requiera de servicios no comprendidos en el presente
contrato, "LA PRESTADORA" cobrara adicionalmente la cantidad que ambas partes
convengan.
Los comprobantes que expida "LA PRESTADORA" con motivo de cualesquiera de los
pagos que le efectue "TELMEX" en los terminos de este contrato, deberan reunir
los requisitos fiscales que exijan las disposiciones legales y administrativas
aplicables, incluyendo el traslado expreso y por separado del Impuesto al Valor
Agregado (I.V.A.).
QUINTA.- "LA PRESTADORA" se propone cumplir de buena fe y de la mejor manera
posible las obligaciones que contrae y prestara "LOS SERVICIOS" con elementos
propios o ajenos, asumiendo incondicionalmente y bajo su estricta
responsabilidad cualesquiera responsabilidades respecto de las personas que
destine para la prestacion de "LOS SERVICIOS", por lo que sera la unica
responsible de los contratos de trabajo o de cualesquiera otra indole que
celebre con dicho personal; segun el caso, del pago de honorarios y xxxxx
prestaciones laborales, asi como de las cuotas al Instituto Mexicano del Seguro
Social, Infonavit y de los Impuestos Sobre la Renta y otros que se causen; de
los conflictos que puedan surgir con el personal mencionado y de cualesquiera
reclamacion por accidente de trabajo o enfermedades profesionales de dicho
personal.
"TELMEX" conviene en que, a solicitud de "LA PRESTADORA" otorgara mandatos
suficientes a consejeros, asesores y miembros de comites de esta ultima para
que, en los casos que xxxx necesarios, dichos mandatarios puedan en nombre y
representacion de "TELMEX" realizar la prestacion de "LOS SERVICIOS"; pero en el
entendido que no habra relaciones de trabajo entre los susodichos mandatarios y
"TELMEX", sino que se aplicara lo convenido en el parrafo anterior de esta
clausula, respecto de las relaciones entre "LA PRESTADORA" y sus consejeros,
asesores y miembros de comites.
SEXTA.- La vigencia del presente contrato inicia el primero de enero de dos mil
uno y concluye precisamente el treinta y uno de diciembre de dos min uno.
SEPTIMA.- Para todas las cuestiones relacionadas con la validez, interpretacion
y cumplimiento de este contrato, regiran las leyes vigentes en el Distrito
Federal y las Leyes Federales que fueren aplicables y para la resolucion de
cualquier juicio que pudiera surgir en relacion con el mismo, las partes se
someten expresamente a los tribunales competentes en la Ciudad de Mexico,
Distrito Federal, renunciando expresamente a cualquier otra jurisdiccion que
pudiere corresponder por razon de nacionalidad, domicilio o residencia.
Este contrato se formula en dos ejemplares y se firma en la Ciudad de Mexico,
Distrito Federal, con fecha 01 de enero de 2001.
"LA PRESTADORA" "TELMEX"
CARSO GLOBAL TELECOM, S.A. DE C.V. TELEFONOS DE MEXICO, S.A. DE C.V.
/s/ XXXXXXXXX XXXXXX XXXX /s/ XXXXX XXXXX XXXXX
-------------------------- ----------------------------
LIC. XXXXXXXXX XXXXXX XXXX ING. XXXXX XXXXX XXXXX
APODERADO DIRECTOR GENERAL Y APODERADO
TESTIGO
/s/ XXXXX XXXXXX BRACCHINI
---------------------------
LIC. XXXXX XXXXXX BRACCHINI
Attachment C (English Translation)
----------------------------------
AGREEMENT FOR USE OF SERVICES OF OPERATION AND MANAGEMENT CELEBRATED ON ONE SIDE
BY CARSO GLOBAL TELECOM, S.A. DE C.V., HEREINAFTER "THE LENDER", REPRESENTED
BY XX. XXXXXXXXX XXXXXX XXXX, ATTORNEY, AND ON THE OTHER SIDE BY TELEFONOS DE
MEXICO, S.A. DE C.V., HEREINAFTER "TELMEX", REPRESENTED BY XX. XXXXX XXXXX
XXXXX, ENGINEER, IN AGREEMENT WITH THE FOLLOWING DECLARATIONS AND CLAUSES.
DECLARATIONS
1. The Lender declares:
a) That it is a corporation organized under and in compliance with the laws of
the Republic of Mexico with its place of business at Xxxxxxxxxxx Xxx 0000, Xxxxx
00 X.X., Xxx. Xxxx Pobre, Delegacion Tlalpan, Mexico, D.F.
b) That its corporate social objective, among other activities, is to promote,
organize and administrate all types of corporations, commercial and private; and
to provide administrative services (organizational, fiscal, legal, and business
consulting).
c) That the corporation has all of the resources necessary to properly lend
services under this contract.
2. Telmex declares:
a) That it is a corporation organized under and in compliance with the laws of
the Republic of Mexico with its place of business at Parque Xxx Xx. 000, Xxx.
Xxxxxxxxxx, Delegacion Xxxxxxxxxx, X.X. 00000, Xxxxxx, D.F.
b) That its corporate purpose, in general, is to build, install, maintain,
operate and exploit the public telecommunications network in order to provide
public service transmittal of voice, sounds, data, text and images; to provide
local and long distances service at a national and international level as well
as to provide basic public telephone services; to provide consulting and
technical assistance, both scientific and administrative; and to perform any
other action or enter into any other contract that is related to its corporate
purpose and that is legal for a joint stock company to perform.
c) That it desires to obtain the services that the Lender will provide with
the objective of running its operations in the best possible way.
CLAUSES
FIRST. By means of the present contract the Lender agrees to provide to Telmex
the consulting services and assistance with respect to administration and
operation specified below:
1. Evaluation of all and each of the addresses, places and personnel in regard
to Telmex and all of its subsidiaries.
2. Revision and, where applicable, a restructuring of all collective
employment contracts.
3. Performance of day to day operations.
4. Technical, administrative and financial planning.
5. Implementation of systems, administrative and operational controls.
6. Planning and negotiating investments, optimizing the profits obtained
using the company's resources.
(a) Optimizing the external network.
(b) Revision and optimization of investments in equipment and the
external network.
7. Preparing transformation programs of Telmex in order to increase its
efficiency and modernize its operations, and to aggressively grow the
telephone factory of Telmex, in all such cases, to improve the quality of
services at the international level.
8. Restructuring of all policies concerning taxes, commerce, technology and
services.
9. Preparing the plans for personnel relocations.
10. Creation and management of Instituto Nacional Technologico de Telmex, A.C.
11. Carry out plans for real estate investments that will substantially reduce
the number and value of such.
12. Establish procedures and norms for construction.
13. Evaluate the alternatives that will arise as a result of economic and
technical studies that will be carried out in the business of the different
aspects and places of operation.
In general, the regeneration, reorganization and restructuring of Telmex and
its subsidiaries with regards to the planning, execution and supervision of all
business areas.
The above will hereinafter be referred to as "THE SERVICES".
SECOND. Telmex will not delegate to the Lender, in any form, corporate powers
that will involve the making of decisions regarding the direction of the
company. This will be under the absolute discretion and exclusive responsibility
of the Administrative Council, the General Directorate and the Board of
Directors of Telmex without any interference by the Lender.
THIRD. the Lender will provide the Services with it's own resources or those
that it is able to outsource and contract with third parties, in which case,
under it's own strict responsibility.
FOURTH. Telmex shall pay the Lender for the rendering of the Services a total
amount in Mexican pesos equal to $20,000,000.00 U.S. dollars. (TWENTY
MILLION UNITED STATES OF AMERICAN DOLLARS), in addition to value added tax
(I.V.A).
These amounts will be paid in full by Telmex to the Lender no later than
February 28, 2001.
To determine the amount in Mexican pesos for this payment, the type of exchange
rate that will be used for the purchase of American dollars will be that which
is the equivalent in national currency to the principal or interest of the
Treasury Bonds of the Federation "TESOBONOS" that will be paid on that same date
in which Telmex carries out said payment to the Lender.
In the event that Telmex requires services not mentioned or covered under
this contract, the Lender will charge an additional amount set by both
parties.
The vouchers issued by the Lender with respect to any of the payments that are
made by Telmex under the terms of this contract shall encompass the fiscal
requirements that are required under the applicable legal and administrative
arrangements, including the express transfer and the separate value added tax
(I.V.A).
FIFTH. The Lender intends to proceed in good faith and in the best possible way
to render the Services with its own resources or hire external resources to
perform the Services, assuming unconditionally and under its own responsibility
whatsoever (i) the responsibilities which may arise with respect to the persons
it elects to perform the Services, for which it will be solely responsible for
employment contracts and any conditions that such personnel will be subject to,
including the payment of salaries and all labor fees and rents, including
payments to the Instituto Mexicano del Seguro Social, Infonavit and Impuestos
Sobre la Renta; (ii) all conflicts arising with respect to the above mentioned
personnel; and (iii) whatever claim that may arise under work related accidents
or sickness in connection with said personnel.
SIXTH. This agreement shall be in effect during the period beginning January 1,
2001 and will end exactly on December 31, 2001.
SEVENTH. For all questions arising in relation to the validity, interpretation,
and fulfillment of this agreement, the parties expressly agree to submit to the
laws of the territory and courts of Mexico City, D.F., waiving the application
of any other law or jurisdiction of any court that might have jurisdiction over
them by reason of their current or future address.
This agreement is drawn in two counterparts and signed in Mexico City,
Federal District on January 1st, 2001.
THE LENDER TELMEX
CARSO GLOBAL TELECOM, S.A. DE C.V. TELEFONOS DE MEXICO, S.A. DE C.V.
/s/ XXXXXXXXX XXXXXX XXXX /s/ XXXXX XXXXX XXXXX
-------------------------- ----------------------------
LIC. XXXXXXXXX XXXXXX XXXX ING. XXXXX XXXXX XXXXX
APODERADO DIRECTOR GENERAL Y APODERADO
WITNESS
/s/ XXXXX XXXXXX BRACCHINI
---------------------------
LIC. XXXXX XXXXXX BRACCHINI