MANAGEMENT AGREEMENT
Exhibit 4.1
Exhibit 4.1 Management Agreement |
| MANAGEMENT AGREEMENT |
MANAGEMENT AGREEMENT dated as of August 4, 1998, by and between Empresa Brasileira de Telecomunicações S.A. - EMBRATEL, a sociedade anonima established and existing under the laws of Brazil, registered with the C.G.C./M.F. under number 33.530.486/0001-29, with offices at Xx. Xxxxxxxxxx Xxxxxx, 0000, XXX 00000-000, Xxx xx Xxxxxxx, XX, Xxxxxx (“EMBRATEL”) and MCI Global Resources, Inc., a Delaware corporation, with offices at 0 Xxxxxxxxxxxxx Xxxxx, Xxx Xxxxx, XX 00000, XXX (“MCI”).
| W I T N E S S E T H: |
WHEREAS, Startel Participações Ltda., a limited liability company organized under the laws of Brazil (“Purchaser”), and the Union, a/k/a the Government of Brazil, have entered into a Share Purchase Agreement dated August 4, 1998 (the “Share Purchase Agreement”), pursuant to which Purchaser initially acquired 51.79% of the voting stock of Embratel Participações S.A. “Embratel Participações”);
WHEREAS, Embratel Participações owns 98.75% of the voting stock of EMBRATEL;
WHEREAS, Purchaser is an Affiliate of MCI;
WHEREAS, MCI has the management, technical and financial capability, and is committed to developing and maintaining EMBRATEL’s telecommunications system as a technologically advanced, efficient system and EMBRATEL’s services as technologically current and responsive to customer requirements for the benefit of Brazil and its citizens; and
WHEREAS, EMBRATEL desires to benefit from, and MCI desires to provide EMBRATEL with, access to management, policy, operational, marketing and other related experience of the senior management of MCI and its Affiliates for the development and maintenance of EMBRATEL’s telecommunications system and services.
NOW THEREFORE, in consideration of the foregoing, it is agreed by and between the Parties hereto as follows:
| DEFINITIONS |
Capitalized terms used in this Agreement and not otherwise defined shall have the following meanings:
“Affiliate” shall mean with respect to any person, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with, the specified person. For purposes of this definition, the term “control” as applied to any entity, means the possession, directly or indirectly, of the power to direct or cause the direction of the management of that entity, whether through ownership of shares, voting securities, partnership or other ownership interests, agreement or otherwise. As used in this Agreement, the term “Affiliate,” as it applies to MCI, shall not include EMBRATEL or any other entities organized under the laws of Brazil and, as it applies to EMBRATEL, shall not include MCI.
“Agreement” means this Management Agreement as amended or supplemented from time to time in accordance with its terms.
“ANATEL” means the Brazilian Agência Nacional de Telecomunicações.
“Annual Revenue” means total annual revenue, arising out of the Services, as defined hereinbelow, net of indirect taxes and contributions (ICMS, PIS and COFINS).
“Brazil” means the Federative Republic of Brazil.
“EMBRATEL” shall mean Empresa Brasileira de Telecomunicações S.A. - EMBRATEL and its Affiliates, as applicable.
“Fiscal Year” shall mean a year commencing on 1 January and ending on 31 December of each year.
“Intellectual Property” means all current and future worldwide rights to any inventions, discoveries or improvements, whether or not patentable; copyrights; trade secrets; know-how; utility models; Confidential Information; tradenames, trademarks and service marks, whether or not registered; all other intangible proprietary rights, including all applications and registrations with respect thereto; and all tangible embodiments of any of the foregoing.
“MCI” shall mean MCI Global Resources, Inc. and its Affiliates, as applicable.
“Parties” shall mean both parties to this Agreement, each of whom is sometimes referred to herein as a “Party.”
“Services” shall mean the services that EMBRATEL is authorized to provide under the terms and conditions of the:
Concession Contract - National Long Distance, and
Concession Contract - International Long Distance
which were executed on June 2, 1998, between EMBRATEL and ANATEL (collectively, the “Concession Contracts”); and the
Authorization Term of Network Transport Telecommunications Service,
Term of Right of Exploitation of Brazilian Satellites,
Authorization Term of Mobile Global Service by Satellite, and
Authorization Term of Maritime Mobile Service
which were executed on July 27, 1998, between EMBRATEL and ANATEL (collectively, the “Authorization Terms”), which services are listed and detailed on Attachment 1 hereto, provided, however, in the event of any discrepancy between the list on Attachment 1 and the terms and conditions of the Concession Contracts and Authorization Terms (as drafted in the original Portuguese), the Concession Contracts and Authorization Terms shall prevail. In addition to the foregoing, the term “Services,” as used in this Agreement, shall automatically include, as of the effective date authorization is granted, any additional services that EMBRATEL is authorized to provide during the Term hereof.
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| ARTICLE I |
| APPOINTMENT |
1.01 Appointment. EMBRATEL hereby appoints MCI to manage and advise and assist with respect to the operations and administration of its business, and in particular, the provision of the Services, subject to the terms and conditions hereof, the Concession Contracts, the Authorization Terms, the Share Purchase Agreement, the Certificate of Incorporation and Bylaws of EMBRATEL, and the general authority, supervision and control of EMBRATEL acting through its Board of Directors.
It is understood that the Management Services to be provided under this Agreement are limited to offering advice and assistance of MCI’s senior management based upon MCI’s experience in, and knowledge of, telecommunications. EMBRATEL shall be responsible for determining whether to act upon, and implementing, such advice and assistance and for day-to-day management and operations. No provision of this Agreement shall require MCI or its Affiliates: to dedicate, (calculated on a quarterly average basis) more than 25% (twenty-five percent) of any respective member of senior management’s work time to providing the Management Services hereunder, to second full or part-time personnel to EMBRATEL, to provide monetary contributions or loans to EMBRATEL, to transfer Intellectual Property, or to offer advice and assistance in respect to any EMBRATEL offerings other than the Services. In addition, any MCI senior management or other personnel providing Management Services hereunder shall have no authority to conclude or execute agreements on behalf of MCI or its Affiliates while present in Brazil, shall remain employees of MCI or its Affiliates and shall remain subject to all of MCI’s policies, and shall continue to receive all compensation and benefits directly from MCI or its Affiliates.
1.02 Acceptance. MCI hereby accepts its appointment hereunder and agrees to make available such skills, services and expertise, and to work in good faith and in close cooperation with EMBRATEL, with the goal of strengthening the strategic position of EMBRATEL in the telecommunications industry in Brazil and making it a more business-driven, customer-oriented and technologically advanced telecommunications operator.
| ARTICLE II |
| GENERAL SERVICES |
2.01 Management Services. MCI shall make experienced representatives of the senior management of its existing organizational areas and those of its Affiliates reasonably available to EMBRATEL to provide advice and services in the following areas: General Management and Oversight, Finance and Financial Reporting, Business Planning, Business Strategy, Investor Relations, Regulatory, Legal, Operations, Human Resources, Marketing, Sales, Advertising, Competitive Analysis, Billing, Pricing, Customer Service and Satisfaction, New Products, Procurement, and Network Planning (the “Management Services”).
2.02 Management and Operating Experience. MCI will provide the Management Services by coordination with EMBRATEL management and by means of making MCI’s senior management personnel available to EMBRATEL, as more fully described in this Agreement, in the areas listed in Section 2.01 above.
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| ARTICLE III |
| MANAGEMENT |
3.01 Responsibilities
of MCI. |
(a) MCI shall, as requested by Embratel, provide advice regarding the management, operations, and business of EMBRATEL as they relate to the Services, including, but not limited to, the development and implementation of general performance policies, organizational structure, annual budgets and business and strategic plans (“Strategic Plans”), as described in Section 3.02. To this end, EMBRATEL shall provide to MCI all the information requested by MCI and unrestricted access to books, records and other data that MCI deems advisable for exercising its management advisory responsibilities.
(b) MCI shall use its experience and information and theoretical and practical knowledge, in its capacity as a telecommunications provider and service operator, and those methods and procedures MCI presently knows and uses, as well as all those resulting from the future development of MCI’s knowledge and experience, with the aim of improving and enhancing the operations, business and value of EMBRATEL through the application of operating strategies and management policies and practices available.
(c) At all times EMBRATEL may consult with MCI and may request advice of MCI on any question relating to its business activities within the scope of this Agreement.
(d) MCI shall offer to EMBRATEL the tangible and intangible benefits arising from the relationship with MCI including, among other things, economies of scale in the purchase of equipment, if and to the extent available. In addition, upon mutual agreement of EMBRATEL and MCI, MCI shall assist in the negotiations for EMBRATEL and its Affiliates to obtain certain technology from outside sources other than MCI or any Affiliate thereof.
3.02 Strategic Plans. |
(a) Within one hundred twenty (120) days of the date of this Agreement and, for each subsequent year, at least thirty (but not more than ninety) days prior to the beginning of EMBRATEL’s fiscal year, MCI shall use its management expertise and experience to assist EMBRATEL in the development of a Strategic Plan for EMBRATEL and for the approval of EMBRATEL’s Board of Directors. MCI shall provide Management Services to assist EMBRATEL in implementing such Strategic Plan as requested. Such strategic Plan shall address:
| (i) | Business strategies; planning (including technical, commercial, acquisitions, information systems and real property) and short, medium and long term timetables for the fulfillment of the plans; | |
| (ii) | Financial aspects, with particular emphasis on the analysis of the financial performance which may include the financing needs and the utilization of the most suitable financing sources; improving EMBRATEL’s return on capital invested; and assistance regarding the relationship with financial institutions and entities in order to obtain improved financing terms; and | |
| (iii) | Administration and human resources with particular reference to the adoption of the most advisable administrative, accounting, tax, budgetary and fiscal practices, methods and controls. |
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(b) Each Strategic Plan shall be developed by Embratel with MCI’s assistance and presented to the Board of Directors of EMBRATEL (the “Board”) for its approval.
3.03 Organizational
Structure and Designation of Personnel. |
(a) MCI shall advise EMBRATEL on any restructuring of, or modifications to, the organizational structure of EMBRATEL (the “Organizational Structure”) which MCI may deem advisable and propose to EMBRATEL, from time to time, the personnel to occupy positions within EMBRATEL and its Affiliates. MCI shall endeavor that any such proposal comply with all pertinent labor laws, regulations, and agreements (including the Share Purchase Agreement). Any action shall be taken only at the direction of Embratel management and shall strictly comply with all pertinent labor laws, regulations, and agreements (including the Share Purchase Agreement). The designation and/or ratification of senior management and changes in the Organizational Structure shall be subject, where appropriate, to the approval of the Board in accordance with EMBRATEL’s By-laws.
(b) The officers and senior management employees proposed by MCI shall, to the knowledge of MCI, have the professional and technical qualifications to perform the functions that in each case are assigned to them. MCI shall assess such qualifications on the basis of objective evaluation methods. Such persons may come from MCI and its Affiliates, from EMBRATEL through internal promotion or from unaffiliated third parties.
| ARTICLE IV |
| PAYMENTS |
4.01 Management Fee. EMBRATEL shall pay MCI as compensation for the Management Services a management fee (the “Fee”) which shall be the amount resulting from the application of the percentage stipulated below on EMBRATEL’s Annual Revenue derived from the Services.
The percentage to be applied shall be 1% per annum through December 31, 2000; 0.5% per annum from January 1, 2001, through December 31, 2002; and 0.2% per annum as of January 1, 2003.
Embratel agrees to provide MCI with appropriate office space, computer equipment and software, telephones, copiers, and local transportation, at its own expense.
4.02 Payment Terms. |
(a) The Fee shall be payable in advance in quarterly installments payable no later than the first day of the corresponding calendar quarter and shall be calculated by applying the formula set forth in Section 4.01 of this Agreement to the applicable portion of EMBRATEL’s revenue for that quarter as set forth in the current business plan approved by the Board (“Advance Fee”). In order to reconcile discrepancies between the Advance Fee, based on forecasted revenue, and actual revenue earned by EMBRATEL during the same quarter, at the end of each calendar quarter EMBRATEL will calculate all revenue of said quarter arising out of the Services, including revenues due but not yet paid (“EMBRATEL’s Quarterly Revenue”). The percentages set forth in Section 4.01 of this Agreement will then be calculated over EMBRATEL’s Quarterly Revenue. The Fee payment at the end of each quarter (in addition to the Advance Fee, if applicable) shall be calculated by multiplying the final full quarterly portion of Annual Revenue, based upon the applicable financial statements of EMBRATEL, by the applicable percentage referred to in Section 4.01, and subtracting therefrom the Advance Fee payment made with respect to such quarter (“Adjusted Fee”). Any excess Advance Fee payments shall be deducted from subsequent installments due, or at EMBRATEL’s option, shall be promptly refunded by MCI. As the Services are invoiced by EMBRATEL in Brazilian current currency, but the Fees are to be paid in U.S. dollars, the calculation of both the Advance Fee and the Adjusted Fee shall use the average U.S. dollar sales rate, employed by major commercial banks operating with the floating exchange rate (commercial rate) in the City of Xxx xx Xxxxxxx, Xxx xx Xxxxxxx, Xxxxxx, for the first day of the calendar quarter for which such Advance Fee or Adjusted Fee is calculated. Once said conversion to U.S. dollars has been made, the corresponding Fee shall henceforth for all legal purposes be referred to in U.S. dollars. EMBRATEL shall send to MCI every quarter, within 30 (thirty) days following the end of said period, a written report of all invoicing and the calculation of the Fees during said period. In addition, the Fee payment at the end of each Fiscal Year shall be calculated by multiplying the final full year Annual Revenue based upon the audited financial statements of EMBRATEL by the applicable percentage referred to in Section 4.01, and subtracting therefrom all prior Fee installment payments made with respect to such Fiscal Year. Any excess payments shall be deducted from subsequent installments due, or at EMBRATEL’s option, shall be promptly refunded by MCI.
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Any late payments made by EMBRATEL will be subject to a fine of 5% (five percent) and a late payment interest rate of 1% (one percent), calculated pro rata monthly, over the amounts due in US dollars, provided that the percentage limitations set forth in Section 4.01 are not exceeded.
| ARTICLE V |
| ADDITIONAL AGREEMENTS/INTELLECTUAL PROPERTY |
5.01 Additional Agreements. The Parties agree to negotiate in good faith and enter into a separate agreements as necessary, in forms substantially similar to those to be provided by MCI or its Affiliates, which shall govern the specific terms and conditions including but not limited to MCI’s compensation other than the Fees, under which MCI and/or its Affiliates shall provide additional management services related to EMBRATEL products or services other than the Services.
5.02 Intellectual Property. EMBRATEL acknowledges that MCI and its Affiliates are the owners of various Intellectual Property rights. This Agreement is not to be construed in any respect that any license or other right is granted to EMBRATEL for such Intellectual Property, other than the rights granted in accordance with Section 5.03. EMBRATEL shall not dispute the validity of such Intellectual Property rights, nor oppose the registration of such Intellectual Property rights within any jurisdiction in the world.
5.03 License Agreements. At the sole option of MCI or its Affiliates, if applicable, Intellectual Property of MCI or its Affiliates may be made available to EMBRATEL on a case-by-case basis pursuant to a separate license agreement. Such license agreement will specify the terms under which the Intellectual Property is to be made available, the limitations on its use, the forms of compensation, other than the Fees, and the effect on the licenses of the Intellectual Property of various termination events.
| ARTICLE VI |
| DISCLAIMER OF WARRANTIES |
6.01 DISCLAIMER OF WARRANTIES. IT IS EXPRESSLY UNDERSTOOD THAT MCI MAKES NO WARRANTY TO EMBRATEL OR ITS AFFILIATES WITH RESPECT TO THE PERFORMANCE OR FITNESS FOR ANY PURPOSE OF THE PRODUCTS OR SERVICES CONTEMPLATED BY THIS AGREEMENT. MCI EXPRESSLY DISCLAIMS ALL WARRANTIES INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
| ARTICLE VII |
| DURATION |
7.01 Initial Term. This Agreement shall become effective as of August 4, 1998, and shall continue through December 31, 2003.
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| ARTICLE VIII |
| TERMINATION |
8.01 Termination by EMBRATEL. EMBRATEL may terminate this Agreement in the event MCI relevantly fails to perform its obligations and responsibilities under this Agreement and does not cure such failure within three months after receipt of a written notice of such failure setting forth in reasonable detail the nature of the alleged failure or, if such failure or breach is not capable of being cured within such three-month period and MCI diligently pursues a cure, such longer period of time as may be reasonable under the circumstances; provided, however, that EMBRATEL may not exercise the right of termination set forth in this Section 8.01 if MCI has previously notified EMBRATEL of its intention to terminate this Agreement pursuant to the provisions of Section 8.02.
8.02 Termination by MCI. MCI may terminate this Agreement in the event of any of the following:
8.03 MCI Operations after Termination. After receipt of written notice of termination of this Agreement, but prior to the effective date of such termination, MCI shall continue to perform under this Agreement unless specifically instructed to discontinue such performance. In any event, even if so instructed, MCI will nonetheless be entitled to reimbursement of reimbursable expenses incurred and payment of the Fees earned for the period ending on the effective date of termination. Such amounts shall be due and payable within 30 days of the effective date of the termination.
8.04 LIMITATION OF LIABILITY. THE TERMINATION OF THIS AGREEMENT PURSUANT TO THIS ARTICLE VIII SHALL NOT AFFECT THE RIGHTS OF ANY PARTY IN RESPECT OF ANY DAMAGES THEY MAY HAVE SUFFERED AS A RESULT OF ANY BREACH OF THIS AGREEMENT, NOR SHALL IT AFFECT THE RIGHTS OF ANY PARTY WITH RESPECT TO ANY LIABILITIES OR CLAIMS ACCRUING, OR BASED UPON EVENTS OCCURRING, PRIOR TO THE EFFECTIVE DATE OF TERMINATION. NOTWITHSTANDING THE FOREGOING, THE TYPES OF DAMAGES RECOVERABLE UNDER THIS AGREEMENT SHALL NOT INCLUDE LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITY OR INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, AND BY EXECUTING THIS AGREEMENT THE PARTIES WAIVE FOR ALL PURPOSES AND UNDER ALL CIRCUMSTANCES THE RIGHT TO CLAIM ANY OF THE SAME. IN ADDITION, THE PARTIES ACKNOWLEDGE AND AGREE THAT DAMAGES PAYABLE BY MCI TO ANY OTHER PARTIES UNDER THIS AGREEMENT SHALL BE LIMITED TO THOSE ACTS CONSTITUTING WILLFUL MISCONDUCT ON THE PART OF MCI.
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| ARTICLE IX |
| GENERAL PROVISIONS |
9.01 Governing Law. This Agreement and the rights of the Parties shall be construed and interpreted in accordance with the laws of the State of New York and the United States of America, as applicable, in all respects, including matters of construction, enforcement and performance without giving effect to the principles of choice of laws thereof.
9.02 Arbitration. If the Parties are unable to resolve any dispute by amicable settlement, such dispute shall be settled by binding arbitration under in accordance with the Arbitration Rules of the United Nations Commission on International Trade Law (“UNCITRAL Rules”) as in force on the date of commencement of arbitration, and as modified by this Section 9.02. Claims alleging violations of the telecommunications laws of the United States of America, however, shall be brought solely before the United States Federal Communications Commission. ADR Associates, of Washington, D.C., U.S.A., shall serve as both the appointing authority and the administering body under the UNCITRAL Rules. ADR Associates shall appoint a single arbitrator of a nationality other than the nationalities of the Parties. All arbitration proceedings shall be conducted in English. The place of arbitration shall be Bermuda. Neither the Parties, nor the arbitrator, nor ADR Associates shall disclose the existence, content or results of any arbitration except with the prior written consent of all Parties to the arbitration. The law governing the arbitration proceedings shall be the Bermuda International Arbitration Act of 1993. The arbitrator shall abide by the rules of Ethics for International Arbitrators established by the International Bar Association. The arbitrator’s authority to grant relief is subject to the terms of this Section 9.02, the terms of this Agreement and the law governing the Agreement. The arbitrator shall have no authority to award punitive or treble damages. Each Party shall pay an equal share of the costs of the arbitration (as defined in Article 28 of the UNCITRAL Rules), except that each Party shall pay the expenses it incurs for its own legal representation and assistance. Judgment on the award may be entered in any court of competent jurisdiction. The post-award proceedings shall be governed by the Inter-American Convention on International Commercial Arbitration of 1975 (the Panama Convention). The validity and construction of this Section 9.02 shall be governed by the law of the State of New York, U.S.A., without regard to its conflict of laws rules.
9.03 Waiver. None of the terms of this Agreement shall be deemed to have been waived by any Party, unless such waiver is in writing and signed by that Party. The waiver by any Party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any other provision of this Agreement or of any further breach of the provision so waived. No extension of time for the performance of any obligation or act hereunder shall be deemed to be an extension of time for the performance of any other obligation or act.
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9.04 Notice. All notices and other communications that are required or permitted to be given under this Agreement shall be in writing in Portuguese and English and shall be deemed to have been duly given if delivered personally or by registered mail (return receipt requested) or courier service (documented by receipt) or telefaxed and addressed as follows:
if to EMBRATEL: |
Luigi Xxxxxxx Xxxxxxx Xxxxxxx |
Finance Director |
EMBRATEL |
Av. Presidente Xxxxxx, 1012
- 15 andar |
CEP 00000-000 Xxx xx Xxxxxxx,
XX |
Xxxxxx |
fax x00-00-000-0000 |
if to MCI: |
Xxxxxx Xxxxxxxxx |
Vice President, Corporate
Development |
MCI WorldCom, Inc. |
0000 Xxxxxxxxxxxx Xxx. XX |
Xxxxxxxxxx, XX 00000 |
XXX |
fax (000) 000-0000 |
with a copy to: |
Xxx XxXxxxxx |
Chief Counsel, International
Affairs |
MCI WorldCom, Inc. |
0000 Xxxxxxxxxxxx Xxx. XX,
0xx Xxxxx |
Xxxxxxxxxx, XX 00000 |
fax (000) 000-0000 |
and/or such other addressee and/or address as either of the above shall have specified by notice delivered in accordance with this Section 9.01. Each notice or other communication, which shall be delivered personally, mailed, telexed or telefaxed in the manner described above, shall be deemed sufficiently given, served, sent, received or delivered for all purposes on the first business day following the date that it is delivered to the addressee (with the return receipt, the delivery receipt, the affidavit or messenger or, with respect to a telex or telefax, the answer back being deemed conclusive, but not exclusive, evidence of such delivery) or at such time as delivery is refused by the addressee upon presentation.
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9.05 Entire Agreement. This Agreement contains the entire agreement, and supersedes all prior agreements and understandings and arrangements, oral or written, between the Parties with respect to the subject matter hereof.
9.06 Amendment. This Agreement may not be modified, amended or changed in any respect except in writing duly signed by the Party against whom enforcement of such modification, amendment or change is sought.
9.07 Successors and Assigns. All of the terms and provisions of this Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns.
9.08 Assignment. Except as provided in Section 9.09, no Party shall assign this Agreement, in whole or in part, without the prior written consent of the other Party, and any such assignment contrary to the terms hereof shall be null and void and of no force or effect. No permitted or purported assignment of all or any portion of this Agreement shall effect a release of the transferor of its obligations under this Agreement without an express written release from such obligations by the other Party.
9.09 Assignment by MCI. Notwithstanding Section 9.08, MCI may assign or transfer its rights and obligations under this Agreement to any Affiliate of MCI, including entities organized under the laws of Brazil, without the consent of EMBRATEL.
9.10 Interpretation. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be unenforceable or invalid under applicable law, such provision shall be ineffective only to the extent of such unenforceability or invalidity, and the remaining provisions of this Agreement shall continue to be binding and in full force and effect. In the event of such unenforceability or invalidity the Parties shall negotiate in good faith to agree on changes or amendments to this Agreement which are required to carry out the intent of this Agreement in light of such unenforceability or invalidity.
9.11 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and all such counterparts together shall constitute one and the same legal document.
9.12 Language. This Agreement and any amendments or other modifications hereof shall be executed in the English language and translated into Portuguese for convenience. In the event of a conflict between the English language and the Portuguese language versions of this Agreement, the English language version shall prevail.
9.13 Headings. The Article and other headings contained in this Agreement are for convenience only and shall not be deemed to limit, characterize or interpret any provision of this Agreement.
9.14 Force Majeure. Any failure by a Party to perform obligations and responsibilities under this Agreement (other than payment obligations) shall not be considered a breach of this Agreement if and to the extent such failure to perform is caused by one or more occurrences beyond the reasonable control of the Party affected, including without limitation acts of God, earthquakes, volcanic eruptions, hurricanes or other natural disasters, embargoes, acts of government in exercising its sovereign capacity, governmental restrictions, strikes, labor unrest, riots, wars or other military action, civil disorders, rebellion, acts of terrorism, sabotage, or political or economic crisis or instability (each a “Force Majeure Event”). The Party suffering the Force Majeure Event shall promptly notify the other Party in writing of the details of such Force Majeure Event and thereupon the obligations of the Party giving such notice shall be suspended during, but not longer than, the continuance of the Force Majeure Event. The affected Party shall use all reasonable diligence to remove the Force Majeure Event as quickly as possible, provided that this requirement shall not require the settlement of strikes, lockouts or other labor difficulty by the Party involved, contrary to its wishes, and how all such difficulties shall be handled shall be entirely within the discretion of the Party involved.
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9.15 Confidentiality. |
| (i) | to use such Confidential Information only in the performance of this Agreement, during its term, or as otherwise expressly permitted by this Agreement or by the prior written consent of the Discloser; | |
| (ii) | not to make copies of any such Confidential Information or any part thereof except to the extent expressly permitted by this Agreement or by the Discloser; | |
| (iii) | not to disclose any such Confidential Information to any third party, using the same degree of care used to protect Recipient’s own confidential or proprietary information of like importance, but in any case using no less than a reasonable degree of care; provided, however, that Recipient may disclose Confidential Information received hereunder to (aa) its Affiliates who are bound to protect the received Confidential Information from unauthorized use and disclosure under the terms of a written agreement (including without limitation a pre-existing written agreement), and (bb) to its employees, consultants and agents, and its Affiliates’ employees, consultants and agents, who have a need to know to perform or exercise rights under this Agreement, and who are bound to protect the received Confidential Information from unauthorized use and disclosure under the terms of a written agreement (including without limitation a pre-existing written agreement). |
| (i) | was publicly known at the time of Discloser’s communication thereof to Recipient; | |
| (ii) | becomes publicly known through no fault of Recipient subsequent to the time of Discloser’s communication thereof to Recipient; | |
| (iii) | is in Recipient’s possession free of any obligation of confidence at the time of Discloser’s communication thereof to Recipient; | |
| (iv) | is developed by Recipient independently of and without use of any of Discloser’s Confidential Information or other information that Discloser disclosed in confidence to any third party; | |
| (v) | is rightfully obtained by Recipient without restriction from third parties authorized to make such disclosure; or | |
| (vi) | is identified by Discloser in writing as no longer proprietary or confidential. |
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9.16 No Authority to Bind. MCI shall have no authority to enter into contracts or otherwise incur obligations on behalf of or bind EMBRATEL, except as otherwise expressly approved by the Board.
| Empresa Brasileira de Telecomunicações S.A. | MCI Global Resources, Inc. | ||
-
EMBRATEL |
|||
Dilio
Xxxxxx Xxxxxx |
Xxxxx X. Xxxxxxxxx | ||
President |
Vice President | ||
Witness |
Witness | ||
Print
Name |
Print Name | ||
ID
Number |
ID Number |
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ATTACHMENT 1
The Services
| CONCESSION
AUTHORIZATION |
SERVICES DESCRIPTION | SERVICES | |||
| |
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| CONCESSION
CONTRACT – NATIONAL LONG DISTANCE |
Switched Fixed Telephone Service is the telecommunications service which, by means of the transmission of voice and other signals, is used for communication between fixed and specific points, utilizing telephony processes. | Inter-City, Inter-State, and Inter-Region Switched Fixed Telephone Service within Brazil. | |||
| |
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| CONCESSION
CONTRACT – INTERNATIONAL LONG DISTANCE |
Switched Fixed Telephone Service is the telecommunications service which, by means of the transmission of voice and other signals, is used for communication between fixed and specific points, utilizing telephony processes. | International Switched Fixed Telephone Service | |||
| |
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| AUTHORIZATION
TERM OF NETWORK TRANSPORT TELECOMMUNICATIONS SERVICE (NATIONAL AND INTERNATIONAL)
|
Network Transportation Service is the service designed for transporting voice, telegraphic, data or any other kind of telecommunications signals between fixed points. | Special repetition of TV and video signal service | |||
| Special repetition of audio signal service | |||||
| Dedicated line service (SLD) | |||||
| Analogic signals dedicated line service (SLDA) | |||||
| Digital signals dedicated line service (SLDD) | |||||
| Dedicated line service for telegraphy (SLDT) | |||||
| International dedicated line service (SLDI) | |||||
| International dedicated line service for analogic signals (SLDIA) | |||||
| International dedicated line service for digital signals (SLDID) | |||||
| International dedicated line service for telegraphy (SLDIT) | |||||
| Packet switched network service | |||||
| Circuit switched network service | |||||
| Text communications service – telex | |||||
| |
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| TERM
OF RIGHT OF EXPLOITATION OF BRAZILIAN SATELLITES
|
Transport of telecommunications signals | ||||
| Provision of Space Capacity | |||||
| |
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| AUTHORIZATION
TERM OF MOBILE GLOBAL SERVICE BY SATELLITE |
Global Mobile Satellite Service is the telecommunications service which uses a set of satellites to provide direct communication between a mobile earth station and another telecommunication station. | ||||
| |
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| AUTHORIZATION
TERM OF MARITIME MOBILE SERVICE |
Mobile Maritime Services is the service designed to provide communication between onshore coastal stations and ship stations and between coastal earth stations and earth stations installed on board ships, vessels or rescue crafts. |
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