AGREEMENT OF PROMISE OF ASSIGNMENT AND TRANSFER
OF PERMISSIONS
BY MEANS OF THIS PRIVATE INSTRUMENT:
I. TVA SISTEMA DE TELEVISAO S.A., a corporation organized and existing under
the laws of the Federative Republic of Brazil, with head offices in the
City of Sao Paulo, State of Sao Paulo, at Xxx xx Xxxxx, 000, Xxxx Xxxxxxx,
registered as taxpayer under CGC No. 71.613.400/0001-10, herein
represented by its duly empowered legal representative, hereinafter
referred to simply as "PROMISING TRANSFEROR";
AND
II. PAGING NETWORK DO BRASIL S.A., a corporation, organized and existing under
the laws of the Federative Republic of Brazil, with head offices in the
City of Sao Paulo, State of Sao Paulo, at Rua Xxxxxxxxx Xxxxx, number
1711, registered as taxpayer under CGC/MF No. 01.126.946/0001-61, herein
represented by its Officers Xx. Xxxxxx Xxxxx Trynin, American citizen,
single, business administrator, bearer of identity card No. V192319-I and
CPF No. 214308398-05 and Xx. Xxxxx Xxxxxxx Xxxxxxxx, Brazilian citizen,
married, business administrator, bearer of identity card No. 35355458-5
and CPF 214170768-49 hereinafter referred to simply as "PROMISING
TRANSFEREE";
WHEREAS:
1. The PERMISSION HOLDER is the holder of permissions granted by the
Ministry of Communications for the exploitation of Paging Services
("Servico Especial de Radiochamada") (the "Paging Services"), in
accordance with Ordinances issued by the Ministry of Communications
Number 1202, 1205, dated as of December, 22, 1994, and published in
the Official Gazette of December, 30; 1203, 1204, 1206, dated as of
December, 22, 1994, and published in the Official Gazette of
December, 29; 1264 and 1265, dated as of December, 26, 1994,
published in the Official Gazette of December, 29 (the
"Permissions"), which attached hereto as Exhibit I, are an integral
part hereof as if they had been herein transcribed in full;
2. Having in view the amplification of the rendering of the services in
the Brazilian territory the PERMISSION HOLDER has requested the
Ministry of Communications the transformation of the Permissions
into Permissions to
National restricted Exploitation (solely National Restricted
Permissions, and together with the Permissions, also "Permissions")
according to Ordinance No. 579/94, of August 2, 1994;
3. The PROMISING TRANSFEROR has entered into an agreement for the
resale of its Paging Services and mutual operating agreement with
the PROMISING TRANSFEREE (The "Operating Agreement");
4. The PROMISING TRANSFEREE has made investments in the installation,
operation and provision of the Paging Services, and has been
developing commercial and marketing efforts with its operation and
the resale;
5. The PROMISING TRANSFEREE has expressed its wish to acquire the
Permissions and the PROMISING TRANSFEROR agrees to transfer them to
the PROMISING TRANSFEREE;
6. The PROMISING TRANSFEREE desires to eventually purchase said
Permissions, to which the PROMISING TRANSFEROR agrees;
7. The PROMISING TRANSFEROR and the PROMISING TRANSFEREE acknowledge
the legal demand for obtaining the prior authorization of the
Ministry of Communications in order to have the Permissions
transferred,
NOW, THEREFORE:
The Parties have agreed to enter in this Agreement of Promise of Assignment and
Transfer of Permissions with respect to Paging Services ( the "Agreement"), in
accordance with the clauses and conditions specified below:
Clause One: DESCRIPTION OF THE PERMISSIONS
The Permissions are all of those described in Exhibit I hereto, which initialed
by the parties become an integral part of this Agreement, including any and all
inherent rights of exploitation, namely, but not limited to, those arising from
distinct extensions or modalities of exploitation at any time granted to the
PROMISING TRANSFEROR by all and any Permissions to National Restrictted
Exploitation.
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Clause Two: PURPOSE
The PROMISING TRANSFEROR hereby promises to transfer to the PROMISING TRANSFEREE
and the latter promises to acquire the Permissions attached hereto as Exhibit I,
which shall be considered to have been transcribed in full herein, including any
and all inherent rights of exploitation, namely, but not limited to, those
arising from distinct extensions or modalities of exploitation at any time
granted to the PROMISING TRANSFEROR by all and any Permissions to National
Restricted Exploitation, or other modalities of exploitation.
First Paragraph: The definitive transfer of title to the Permissions of
the PROMISING Transferor to the PROMISING TRANSFEREE shall be made by
means of the execution of one or more definitive transfer agreements
relating to each of the Permissions individually, in groups or jointly, at
the option of the PROMISING TRANSFEREE.
Second Paragraph: For purposes of the exercise of the option by the
PROMISING TRANSFEREE, as provided in the First Paragraph above, it is
incumbent upon it to present to the PROMISING TRANSFEROR the text of the
definitive transfer agreement or agreements, depending on whether it opts
for the joint transfer of the Permissions, or for their transfer
individually or in groups.
Third Paragraph: For purposes of the provisions of the preceding
paragraph, the PROMISING TRANSFEROR grants on the date hereof an
irrevocable power-of-attorney to persons chosen by mutual agreement
between the PROMISING TRANSFEROR and the PROMISING TRANSFEREE, conferring
upon them the necessary powers to carry out the transfer.
Fourth Paragraph: With the transfer of the Permissions, the parties
consider automatically assigned and transferred to the PROMISING
TRANSFEREE all the PROMISING TRANSFEROR's rights arising from any and all
subscriber agreements.
Clause Three: THE DEFINITIVE TRANSFER AGREEMENT(S)
The definitive agreement(s) for the transfer of title to the Permissions shall
be granted by the PROMISING TRANSFEROR in favor of PROMISING TRANSFEREE or in
favor of whom it may indicate, it being recognized by the PROMISING TRANSFEROR,
as of now, that the PROMISING TRANSFEREE has the right to be substituted in its
contractual position in this Agreement one or more times, without the PROMISING
TRANSFEROR's consent, pursuant to its option for the joint, isolated or grouped
transfer of the Permissions, being able, for this purpose, to indicate one or
several interested parties, as the case may be, subject to any applicable legal
and regulatory requirements.
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Clause Four: TERM FOR THE EXECUTION OF THE DEFINITIVE AGREEMENT(S)
The definitive agreement(s) for the transfer of title to the Permissions shall
be executed by the PROMISING TRANSFEROR and PROMISING TRANSFEREE, as soon as the
former has obtained from the Ministry of Communications the competent
authorization in accordance with items 6.11 and 6.11.1 of the General
Telecommunications Rule ("Xxxxx Xxxxx de Telecomunicacoes") approved by
Ordinance No. 232/91 of October 23 and item II.9, of the Specific Conditions of
the Specific Telecommunications Rule ("Xxxxx Especifica de Telecomunicacoes"),
approved by Ordinance No. 257/91 of October 23, i.e. once the three (3) year
period counted from the date of issuance of the functioning license (or such
shorter period as may then be applicable) and the above referred express
authorization is obtained.
First Paragraph: The term referred to in the previous item shall be,
however, anticipated upon the earlier of the following situations:
(i) in accordance with the precise terms of an eventual legislative or
administrative change, regarding the terms of the transfer of the
Permissions;
(ii) when any express authorization has been obtained for the direct
assignment and transfer; or
(iii) when any alternative solution, in accordance with the Third
Paragraph below, has been allowed.
Second Paragraph: The PROMISING TRANSFEROR shall use its best efforts so
as to obtain the previous administrative authorization(s) required in
connection with the execution of the definitive transfer agreement,
cooperating, in a diligent and active manner, in all bureaucratic
proceedings which may be necessary or convenient to accomplish such end.
The PROMISING TRANSFEROR also agrees, if necessary, to look for
alternative solutions to make such transfer possible, provided such
alternative solutions are not excessively burdensome.
Third Paragraph: The PROMISING TRANSFEREE shall cooperate, in a diligent
and active manner, for the accomplishment of occasional bureaucratic
requirements and, if necessary, to search for the alternative solutions in
order to allow such transfer, being provided that said solutions are not
excessively burdensome.
Fourth Paragraph: For purposes of the provisions of the preceding paragraphs,
the PROMISING TRANSFEROR grants, on the date hereof, an irrevocable
power-of-attorney to persons chosen by mutual agreement between PROMISING
TRANSFEROR and the
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PROMISING TRANSFEREE, conferring upon them the necessary powers to effectuate
the transfer of the rights.
Clause Five: REPRESENTATIONS AND WARRANTIES OF THE PROMISING TRANSFEROR
First Paragraph: The PROMISING TRANSFEROR is a corporation (S.A.) duly
organized, validly existing and in good standing under the laws of the
(Federative Republic of Brazil) and has full corporate power and authority
to carry on its business as it is now being conducted and to own all of
its properties and assets. The PROMISING TRANSFEROR is duly qualified to
do business and is in good standing in each jurisdiction in which the
ownership of its properties or the conduct of its business requires such
qualification.
Second Paragraph: The PROMISING TRANSFEROR has all necessary corporate
power and authority and has taken all corporate action necessary to enter
into this Agreement, to consummate the transactions contemplated on its
part hereby and to perform its obligations hereunder. The execution,
delivery and performance of this Agreement and the consummation of the
transactions described herein by the PROMISING TRANSFEROR have been duly
authorized by all requisite corporate action. This Agreement has been duly
executed and delivered by the PROMISING TRANSFEROR and, assuming the due
execution and delivery thereof by the PROMISING TRANSFEREE, is a valid and
binding obligation of the PROMISING TRANSFEROR.
Third Paragraph: As of the date of this Agreement, the PROMISING
TRANSFEROR has good title to all of the Permissions, free and clear of any
and all liens, charges, pledges, mortgages, security interests or other
encumbrances of any kind, except for governmental restrictions on the
transfer thereof.
Fourth Paragraph: The business of the PROMISING TRANSFEROR has been
operated in material compliance with all applicable laws, statutes, rules,
regulations, ordinances, codes, orders, licenses, permits or
authorizations, as such now apply to such business, and to the knowledge
of the PROMISING TRANSFEROR no notification has been received alleging any
violation of any of the foregoing.
Fifth Paragraph: Neither the execution, delivery nor performance of this
Agreement or any of the transactions contemplated hereby will (i) violate
or conflict with any provision of the organizational documents of the
PROMISING TRANSFEROR, (ii) result in a breach of or a default under any
provision of any contract, agreement, lease, commitment, license,
franchise, permit, authorization or concession to which the PROMISING
TRANSFEROR is a party or bound or to
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which any property or asset of the PROMISING TRANSFEROR is subject or an
event which with notice, lapse of time, or both, would result in any such
breach or default, or (iii) result in violation by the PROMISING
TRANSFEROR of any statute, rule, regulation, ordinance, code, order,
judgment, writ, injunction, decree, or award, or an event which with
notice, lapse of time, or both, would result in any such violation, which
breach, default or violation would have a material adverse effect on the
ability of the PROMISING TRANSFEROR to consummate the transactions
contemplated hereby, provided the authorizations referred to in Clause
Four are obtained.
Clause Six: REPRESENTATIONS AND WARRANTIES OF THE PROMISING TRANSFEREE
First Paragraph: The PROMISING TRANSFEREE is a corporation (S.A) duly
organized, validly existing and in good standing under the laws of the
Federative Republic of Brazil and has full corporate power and authority
to carry on its business as it is now being conducted and to own all of
its properties and assets. The PROMISING TRANSFEREE is duly qualified to
do business and is in good standing in each jurisdiction in which the
ownership of its properties or the conduct of its business requires such
qualification.
Second Paragraph: The PROMISING TRANSFEREE has all necessary corporate
power and authority and has taken all corporate action necessary to enter
into this Agreement, to consummate the transactions contemplated on its
part hereby and to perform its obligations hereunder. The execution,
delivery and performance or this Agreement and the consummation of the
transactions described herein by the PROMISING TRANSFEREE have been duly
authorized by all requisite corporate action. This Agreement has been duly
executed and delivered by the PROMISING TRANSFEREE and, assuming the due
execution and delivery thereof by the PROMISING TRANSFEROR, is a valid and
binding obligation of the PROMISING TRANSFEREE, enforceable against it in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratoriums or other similar laws
now or hereafter in effect relating to creditors, rights generally and by
general principles of equity (whether considered in an action at law or in
equity) and the discretion of the court before which any proceeding
therefor may be brought.
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Clause Seven: MUTUAL COVENANTS OF THE PARTIES
First Paragraph: From the date hereof until the date upon which the
definitive agreement(s) for the transfer of the Permissions are executed,
the PROMISING TRANSFEROR shall:
(a) not take any action that would result in the rescission of the grant
of the Permissions to the PROMISING TRANSFEREE, or any action
inconsistent with the consummation of the transactions contemplated
hereby;
(b) comply with any reasonable requests from the PROMISING TRANSFEREE in
order to maintain good title to the Permissions and the Rights,
including using its best efforts to preserve generally the present
relationships with persons or governmental agencies instrumental in
the granting of the Permissions; or
(c) not sell, transfer or otherwise dispose of any of the Permissions or
permit any lien, charge, pledge, mortgage, security interest or
other encumbrance of any kind to exist thereon.
Second Paragraph: From the date hereof until the date upon which the
definitive agreement(s) for the transfer of the Permissions are executed,
the PROMISING TRANSFEREE shall not take any action inconsistent with the
consummation of the transactions contemplated hereby.
Clause Eight: CONSIDERATION
As consideration for the transfer of all the Permissions, now promised, the
PROMISING TRANSFEROR acknowledges receipt from the PROMISING TRANSFEREE, of the
right to subscribe, up to the limit of 1.000 shares of PROMISING TRANSFEREE'S
common stock.
Sole Paragraph: The failure of the PROMISING TRANSFEROR to complete the
assignment and transfer now agreed, once the regulatory term has elapsed
and the approval of the competent authorities is obtained, and provided
that the breach was not the result of the action or inaction of a
government or regulatory authority, such as the Ministry of Communications
of Brazil, shall give rise to the forfeit of its equity interest in the
PROMISING TRANSFEREE.
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Clause Nine: JURISDICTION
9.1. This Agreement and all questions arising in connection with its
interpretation and legal relations between the parties in connection
herewith shall be governed and construed in accordance with the
substantive law of Brazil.
9.2. All disputes and differences arising from or in connection with this
Agreement, or in relations between the parties with respect to the
subject matter hereof, shall be finally settled by binding
arbitration in accordance with the Rules for Conciliation and
Arbitration of the International Chamber of Commerce (ICC) by three
arbitrators appointed in accordance with said Rules. The place of
arbitration shall be New York, New York, and the arbitration
proceedings shall be conducted in English.
9.3. If for any reason, notwithstanding the international character of
this Agreement and the diverse nationalities of the shareholders in
the companies parties to the same, the preceding clause 9.2. should
not be applied or be held invalid by any court in Brazil or in the
United States of America, the parties specifically agree that any
dispute or controversy relating to this Agreement or otherwise
described in clause 9.2. shall be decided solely and exclusively by
the competent courts of the State of New York, United States of
America.
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In witness whereof, the parties have caused this Agreement to be duly executed
in three (3) counterparts of equal content and form, in the presence of the two
witnesses below.
Sao Paulo, December 11th, 1996
/s/ Xxxxxxxx Xxxxxxxx
/s/ Xxxxxxx Xxx Xxxxxx
---------------------------------------------
TVA SISTEMA DE TELEVISAO S.A.
Xxxxxxxx Xxxxxxxx
Xxxxxxx Xxx Xxxxxx
Legal Representative
/s/ Xxxxxx Xxxxx Trynin
/s/ Marco Xxxxxxx Xxxxxxxx
---------------------------------------------
PAGING NETWORK DO BRASIL S.A.
Xxxxxx Xxxxx Xxxxxx Xxxxx Xxxxxxx Xxxxxxxx
Officer Officer
WITNESSES:
1. /s/ Xxxxxxx Xxxxx Xxxxxxx
-----------------------------------
Xxxxxxx Xxxxx Xxxxxxx
OAB/RJ 80.668
CPF/MF 000.000.000-00
2. /s/ Xxxxx Xxxxxxxx Xxxxxx xx Xxxxx
-----------------------------------
Xxxxx Xxxxxxxx Xxxxxx xx Xxxxx
OAB/RJ 84.606-E
CPF/MF 000.000.000-00
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