EXHIBIT 2.1
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RESTRUCTURING AGREEMENT
dated as of
November 9, 2001
among
VESPER SAO PAULO S.A. and ▇▇▇▇▇▇ ▇.▇.,
VESPER HOLDING SAO PAULO S.A. and VESPER HOLDING S.A.,
VELOCOM CAYMAN BRASIL HOLDINGS, QUALCOMM DO BRASIL LTDA., ▇▇▇▇
CANADA INTERNATIONAL (BRAZIL TELECOM I) LIMITED and ▇▇▇▇ CANADA
INTERNATIONAL (MEGATEL) LIMITED,
VELOCOM INC. and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇,
NORTEL NETWORKS LIMITED, LUCENT TECHNOLOGIES INC.,
TELEFONAKTIEBOLAGET LM ERICSSON (PUBL.), ▇▇▇▇▇▇ CORPORATION and
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇,
VELOCOM DO BRASIL LTDA.,
VESPER SAO PAULO CAYMAN
and
VESPER HOLDING, LTD.
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS........................................................................2
SECTION 1.01. Defined Terms......................................................2
SECTION 1.02. Terms Generally....................................................5
ARTICLE II RESTRUCTURING.....................................................................6
SECTION 2.01. Purchase of Vendor Loans and Ericsson Local Claims by Newco........6
SECTION 2.02. Capitalization of Vendor Loans and Ericsson Local Claims;
Payment of Local Vendor Claims.....................................7
SECTION 2.03. Exchange of QUALCOMM Loan..........................................7
SECTION 2.04. Capitalization of Newco by Existing Shareholders...................8
SECTION 2.05. Contribution of AFACs..............................................8
SECTION 2.06. Issuance of Newco Warrants.........................................8
SECTION 2.07. Newco Registration Rights..........................................8
SECTION 2.08. Issuance of Management Stock Options in Newco......................9
SECTION 2.09. Subsequent Acts....................................................9
ARTICLE III REPRESENTATIONS AND WARRANTIES...................................................9
SECTION 3.01. Organization; Powers...............................................9
SECTION 3.02. Authorization; Enforceability......................................9
SECTION 3.03. Governmental Approvals; No Conflicts..............................10
SECTION 3.04. Compliance with Laws and Agreements...............................10
SECTION 3.05. Taxes.............................................................10
SECTION 3.06. Newco Ownership...................................................10
SECTION 3.07. Solvency..........................................................10
SECTION 3.08. Disclosure........................................................10
SECTION 3.09. Organization; Powers..............................................11
SECTION 3.10. Authorization; Enforceability.....................................11
SECTION 3.11. Governmental Approvals; No Conflicts..............................11
SECTION 3.12. New Shareholder Representation....................................12
ARTICLE IV CONDITIONS.......................................................................12
ARTICLE V COVENANTS AND AGREEMENTS..........................................................14
SECTION 5.01. New Shareholder Contributions.....................................14
SECTION 5.02. Repair Services...................................................14
SECTION 5.03. Public Disclosure.................................................15
ARTICLE VI MISCELLANEOUS....................................................................16
SECTION 6.01. Notices...........................................................16
SECTION 6.02. No Deemed Waivers; Remedies Cumulative............................19
SECTION 6.03. Expenses; No Indemnification......................................19
SECTION 6.04. Survival..........................................................19
SECTION 6.05. Counterparts; Integration; Effectiveness..........................19
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SECTION 6.06. Severability......................................................20
SECTION 6.07. Governing Law; Jurisdiction; Service of Process; Etc..............20
SECTION 6.08. WAIVER OF JURY TRIAL..............................................21
SECTION 6.09. Headings..........................................................21
SECTION 6.10. Confidentiality...................................................21
SECTION 6.11. Amendment.........................................................22
Schedule I - Payments in respect of Vesper Sao Paulo S.A. Vendor Loans
Schedule II - Payments in respect of ▇▇▇▇▇▇ ▇.▇. Vendor Loans and Ericsson
Local Claims
Schedule III - Non-Vendor Outstanding Indebtedness
Schedule IV - List of Potential Strategic Investors Contacted
Schedule V - ▇▇▇▇▇▇ ▇.▇. Local Vendor Claims
Schedule VI - Vesper Sao Paulo S.A. Local Vendor Claims
Schedule VII - Ericsson Local Claims
Exhibit A-1 - Form of Assignment Agreement of Vesper Sao Paulo S.A.
Exhibit A-2 - Form of Assignment Agreement of ▇▇▇▇▇▇ ▇.▇.
Exhibit B-1 - Form of ▇▇▇▇▇▇ ▇.▇. Release
Exhibit B-2 - Form of Vesper Sao Paulo S.A. Release
Exhibit C - Form of Assignment of Credit Rights
Exhibit D - Form of Newco Shareholders Agreement
Exhibit E - Form of Newco Loan
Exhibit F - Form of Warrant
Exhibit G - Form of Registration Rights Agreement
Exhibit H-1 - Form of Substitution of Administrative Agent Agreement
Exhibit H-2 - Form of Substitution of Facility Agent Agreement
Exhibit I - Form of VeloCom Solvency Certificate
Exhibit J - Form of Exchange and Assignment Agreement
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RESTRUCTURING AGREEMENT dated as of November 9, 2001 among ▇▇▇▇▇▇
▇.▇. and ▇▇▇▇▇▇ SAO PAULO S.A. (individually, an Operating Company and,
collectively, the Operating Companies), VESPER HOLDING S.A. and VESPER HOLDING
SAO PAULO S.A. (individually, a Brazilian Holding Company and, collectively, the
Brazilian Holding Companies), VELOCOM CAYMAN BRASIL HOLDINGS, QUALCOMM DO BRASIL
LTDA., ▇▇▇▇ CANADA INTERNATIONAL (BRAZIL TELECOM I) LIMITED and ▇▇▇▇ CANADA
INTERNATIONAL (MEGATEL) LIMITED (individually, an Existing Shareholder and,
collectively, the Existing Shareholders), VELOCOM INC. (VeloCom) and ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ (QUALCOMM) (individually, a New Shareholder and, collectively, the
New Shareholders), NORTEL NETWORKS LIMITED, LUCENT TECHNOLOGIES INC.,
TELEFONAKTIEBOLAGET LM ERICSSON (PUBL.) (Ericsson), ▇▇▇▇▇▇ CORPORATION and
QUALCOMM (individually, a Vendor and, collectively, the Vendors), VELOCOM DO
BRASIL LTDA, VESPER SAO PAULO CAYMAN and VESPER HOLDING, LTD. (Newco) (the
Agreement).
RECITALS
A. Reference is hereby made to that certain Common Agreement, dated as of
December 27, 1999, among VESPER qSAO PAULO S.A., VESPER HOLDING SAO PAULO S.A.,
VESPER SAO PAULO CAYMAN, the Administrative Agents party thereto, BANCO CITIBANK
S.A., as Collateral and Intercreditor Agent and CITIBANK, N.A., as Collateral
and Intercreditor Agent and to the transactions contemplated thereby.
B. Reference is hereby made to that certain Common Terms Agreement, dated as of
December 13, 1999, among VESPER HOLDING S.A., ▇▇▇▇▇▇ ▇.▇., ABN AMRO BANK N.V.,
as Agent for itself, NORTEL NETWORKS LIMITED (formerly Nortel Networks
Corporation), ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ CORPORATION, the Other Pari Passu
Facility Agents and LASALLE BANK NATIONAL ASSOCIATION, as Collateral Agent and
to the transactions contemplated thereby.
C. The parties hereto have determined that it would be in their mutual best
interests to restructure the debt and equity securities of the Operating
Companies and the Brazilian Holding Companies in the manner provided below.
D. The New Shareholders, through their Brazilian subsidiaries QUALCOMM do Brasil
Ltda. and VeloCom do Brasil Ltda., have contributed approximately $60,338,000 in
the form of AFACs to the Operating Companies through their respective Brazilian
Holding Companies since June 1, 2001 to continue operations of the Operating
Companies, but require a restructuring plan for the Operating Companies prior to
committing additional equity.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
AFAC means adiantamento para futuro aumento de capital (Advance for
Future Capital Increases).
Agreement has the meaning set forth in the first paragraph hereof.
ANATEL means Agencia Nacional de Telecomunicacoes (National
Telecommunications Agency).
Board of Directors means, with respect to any Person, the board of
directors (or any similar governing body) of such Person or, unless the context
otherwise requires, any authorized committee of the board of directors (or such
body) of such Person.
Brazil means the Federative Republic of Brazil.
Brazilian Holding Company and Brazilian Holding Companies have the
meanings set forth in the first paragraph hereof.
Business Day means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City, the city of Sao Paulo or the
city of Rio de Janiero are authorized or required by law to remain closed.
Central Bank means Banco Central do Brasil.
Dollars or $ refers to lawful money of the United States.
Effective Date means the date on which the conditions specified in
Article IV are satisfied or waived, but in no event shall be later than November
16, 2001.
Ericsson has the meaning set forth in the first paragraph hereof.
Ericsson Local Claims means, with respect to each Operating Company,
all claims and other obligations owing from such Operating Company to Ericsson
Local Vendor payable in respect of the delivery of equipment or the provision of
services which have been invoiced to such Operating Company prior to the
Effective Date and set forth in Schedule VII hereto.
Ericsson Local Vendor means Ericsson Telecomunicacoes S.A. and
Ericsson Servicos de Telecomunicacoes Ltda., individually or collectively, as
applicable.
Existing Shareholder and Existing Shareholders have the meanings set
forth in the first paragraph hereof.
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Governmental Authority means the government of the United States,
Brazil, or of any other nation, or any political subdivision thereof, whether
state or local, and any agency, authority, instrumentality, regulatory body,
court, central bank or other entity (including any federal or other association
of or with which any such nation may be a member or associated) exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government.
Indebtedness of any Person means, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person in respect of the deferred purchase price of property
or services (excluding current accounts payable incurred in the ordinary course
of business), (d) all Indebtedness of others secured by any Lien on property
owned or acquired by such Person, whether or not the Indebtedness secured
thereby has been assumed, (e) all guarantees by such Person of Indebtedness of
others, (f) all capital lease obligations of such Person and (h) all
obligations, contingent or otherwise, of such Person in respect of bankers'
acceptances or as an account party in respect of letters of credit; provided,
however, that Indebtedness shall not include trade payables arising in the
ordinary course of business so long as such trade payables are payable within
120 days of the date the respective goods are delivered or the respective
services are rendered and are not overdue.
Information has the meaning set forth in Section 6.10.
Lien means any lien, mortgage, pledge, security interest, charge or
encumbrance of any kind (including any conditional sale or other title retention
agreement or any lease in the nature thereof) and any agreement to give or
refrain from giving any lien, mortgage, pledge, security interest, charge or
other encumbrance of any kind.
Local Vendor means any of the ▇▇▇▇▇▇ ▇.▇. Local Vendors or the
Vesper Sao Paulo Local Vendors individually.
Local Vendor Claims means all claims and other obligations owing
from the Operating Companies to the ▇▇▇▇▇▇ ▇.▇. Local Vendors and the Vesper Sao
Paulo S.A. Local Vendors payable in respect of the delivery of equipment or
provision of services which have been invoiced to the Operating Companies prior
to the Effective Date and set forth in Schedules V and VI hereto.
Material Adverse Effect means, as to any Obligor, a material adverse
effect on (a) the business, assets, property, operations or condition, financial
or otherwise, of such Obligor individually, or such Obligor and its subsidiaries
taken as a whole, (b) the ability of such Obligor to perform any of its
obligations under this Agreement or any of the other Transaction Documents to
which it is a party, (c) the validity or the enforceability of the Transaction
Documents or (d) the rights and benefits contemplated to be available to the
Vendors under this Agreement or any of the other Transaction Documents to which
such Obligor is a party.
Newco has the meaning set forth in the first paragraph hereof.
New Shareholder and New Shareholders have the meanings set forth in
the first paragraph hereof.
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Obligor means any of the Operating Companies, the Brazilian Holding
Companies, Vesper Sao Paulo Cayman or Newco.
Operating Company and Operating Companies have the meanings set
forth in the first paragraph hereof.
Ordinary Share, with respect to equity interests in Newco, has the
meaning set forth in the Shareholders Agreement.
Person means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
QUALCOMM has the meaning set forth in the first paragraph hereof.
Real or Reals means the lawful money of Brazil from time to time.
Restructuring has the meaning set forth in the introduction to
Article 2.
Shareholders Agreement means the subscription and shareholders
agreement for Newco dated as of the date of this Agreement among the New
Shareholders, the Existing Shareholders and the Vendors substantially in the
form of Exhibit D, setting forth, inter alia, the equity commitments of the New
Shareholders in respect of Newco.
Solvent means, with respect to any Person, that, as of any date of
determination, (a) the amount of the "present fair saleable value" of the assets
of such Person will, as of such date, exceed the amount of all "liabilities or
claims of such Person, contingent or otherwise", as of such date, as such quoted
terms are determined in accordance with applicable United States federal and
state laws governing determinations of the insolvency of debtors, (b) the
present fair saleable value of the assets of such Person will, as of such date,
be greater than the amount that will be required to pay the liability of such
Person on its debts or claims as such debts or claims become absolute and
matured, (c) such Person will not have, as of such date, an unreasonably small
amount of capital with which to conduct its business considered in light of the
business in which such Person is engaged, and (d) such Person will be able to
pay its debts as they mature. For purposes of this definition, "claim" and
"debt" shall have the meanings ascribed thereto in Section 101 of the U.S.
Federal Bankruptcy Code and as interpreted by applicable case law.
Taxes means any and all present or future taxes, levies, imposts,
duties, deductions, charges, prescribed employment and social taxes or
withholdings imposed by any Governmental Authority.
Transaction Documents means, collectively, this Agreement (including
all exhibits and schedules hereto) and all other agreements exhibited to this
Agreement or contemplated herein to be entered into or exist in respect of the
Restructuring (including the Shareholders Agreement and the Warrants, but
excluding any agreements in respect of the matters contemplated by Article
IV(d)).
Transactions means the execution, delivery and performance by each
party hereto of, and all other transactions contemplated by, the Transaction
Documents.
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United States means the United States of America (including any
State and the District of Columbia), its territories and possessions and other
areas.
VeloCom has the meaning set forth in the first paragraph hereof.
Vendor and Vendors have the meanings set forth in the first
paragraph hereof.
Vendor Loans means any and all loans (including all accrued interest
including default interest, if any), accounts payable and all other trade
payables outstanding or amounts otherwise due and owing on the Effective Date
from the Brazilian Holding Companies and the Operating Companies and their
subsidiaries to the relevant Vendors and their respective subsidiaries, as the
case may be, as such loans and other amounts shall be assigned in connection
with the Restructuring, excluding Local Vendor Claims and Ericsson Local Claims.
Vento Parent means BV Interativa Holdings, a Cayman Islands company
and holder of all the then issued and outstanding shares of Vento Ltda., except
for nominee shares.
▇▇▇▇▇▇ ▇.▇. Local Vendors means Northern Telecom do Brasil Industria
e Comercio Ltda., Northern Telecom do Brasil Comercio e Servicos Ltda. and
▇▇▇▇▇▇ do Brasil Ltda..
▇▇▇▇▇▇ ▇.▇. Vendors means Nortel Networks Limited,
Telefonaktiebolaget LM Ericsson (Publ.), ▇▇▇▇▇▇ Corporation and QUALCOMM.
Vesper Sao Paulo S.A. Local Vendors means Lucent Technologies
Worldwide Services Inc., Lucent Technologies Network Systems do Brasil Ltda. and
▇▇▇▇▇▇ do Brasil Ltda.
Vesper Sao Paulo S.A. Vendors means Lucent Technologies Inc. and
▇▇▇▇▇▇ Corporation.
Warrants have the meaning set forth in Section 2.06.
SECTION 1.02. Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. Unless the context requires otherwise (a) any
definition of or reference to any agreement, instrument or other document herein
shall be construed as referring to such agreement, instrument or other document
as from time to time amended, supplemented or otherwise modified, (b) any
reference to any statute, decree, regulation or other applicable law shall be
construed as a reference to such statute, law, decree, regulation or other
applicable law as re-enacted, redesigned, amended, succeeded or extended from
time to time, (c) any reference herein to any Person (including any Person
defined in Section 1.01) shall be construed to include such Person's successors
and assigns and in the case of any Governmental Authority, any Person succeeding
to its functions and capacities, (d) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (e) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (f) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer
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to any and all tangible and intangible assets and properties, including, cash,
securities, accounts and contract rights.
ARTICLE II
RESTRUCTURING
The parties hereto agree to restructure the debt and equity
securities of the Operating Companies and, as specified, their subsidiaries and
the Brazilian Holding Companies, by the following actions being taken by the
applicable party or parties on the Effective Date (the Restructuring), except as
otherwise permitted to be taken thereafter:
SECTION 2.01. Purchase of Vendor Loans and Ericsson Local Claims by
Newco.
(a) The New Shareholders shall contribute equity to Newco pursuant
to the terms of the Shareholders Agreement sufficient to allow Newco to
purchase Vendor Loans and Ericsson Local Claims as set forth in
paragraphs (b) and (c) of this Section 2.01.
(b) Newco shall purchase all of the Vendor Loans held by each Vesper
Sao Paulo S.A. Vendor and its subsidiaries for an amount payable in cash
in Dollars in immediately available funds as set forth in Schedule I.
Such purchase of such Vendor Loans shall be effected pursuant to an
assignment agreement substantially in the form of Exhibit A-1. At the
time of execution of such assignment agreement, each Vesper Sao Paulo
S.A. Vendor and Newco shall also effect the resignation of the
administrative agent for such Vendor Loans and appointment of Newco as
administrative agent pursuant to a substitution of administrative agent
agreement substantially in the form of Exhibit H-1.
(c) Newco shall purchase all of the Vendor Loans held by each ▇▇▇▇▇▇
▇.▇. Vendor (other than QUALCOMM) and its subsidiaries, and shall
purchase from Ericsson all of the Ericsson Local Claims, for an amount
payable in cash in Dollars in immediately available funds as set forth
in Schedule II. Such purchase of such Vendor Loans shall be effected
pursuant to an assignment agreement substantially in the form of Exhibit
A-2, and such purchase from Ericsson of such Ericsson Local Claims shall
be effected pursuant to a Brazilian law-governed assignment of credit
rights substantially in the form of Exhibit C. At the time of execution
of such assignment agreement, each ▇▇▇▇▇▇ ▇.▇. Vendor and Newco shall
also effect such party's respective resignation and appointment as
facility agent pursuant to a substitution of facility agent agreement
substantially in the form of Exhibit H-2.
(d) The cash payment to Ericsson pursuant to the preceding clause
(c) shall be deemed to include payment in full of the Ericsson Local
Claims, which payment is being made for the benefit of Ericsson Local
Vendor, converted into U.S. Dollars at the exchange rate in effect one
Business Day prior to the Effective Date.
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SECTION 2.02. Capitalization of Vendor Loans and Ericsson Local
Claims; Payment of Local Vendor Claims.
(a) Newco, as lender/obligee under each of the Vendor Loans and
Ericsson Local Claims purchased from the Vendors (including QUALCOMM)
and their subsidiaries pursuant to Sections 2.01 and 2.03, shall
exchange such Vendor Loans and Ericsson Local Claims for an equity
interest in each such Operating Company, whereupon such Vendor Loans and
Ericsson Local Claims shall be cancelled, in each case subject to
approvals by the Central Bank with respect to Newco's capitalization in
each such Operating Company and which approvals shall be sought promptly
after the Effective Date.
(b) The New Shareholders shall contribute equity to Newco pursuant
to the terms of the Shareholders Agreement sufficient to allow Newco to
contribute to each Operating Company equity sufficient to permit such
Operating Company to pay in cash in immediately available funds the
Local Vendor Claims payable to each relevant Local Vendor of such
Operating Company in the amounts specified in Schedules V and VI. On the
Effective Date, each Operating Company shall make arrangements
satisfactory to the relevant Local Vendor for payment to such Local
Vendor in cash in immediately available funds in Reals of the amounts
specified in the preceding sentence and shall pay to the relevant
Governmental Authority any CPMF tax payable by such Operating Company in
respect of such payment. Any amount of Local Vendor Claims remaining
unpaid after application of such payments shall be assigned to Newco for
$1.00 pursuant to a Brazilian law-governed assignment of credit rights
substantially in the form of Exhibit C, whereupon such remaining Local
Vendor Claims shall be cancelled, in each case subject to approvals by
the Central Bank with respect to Newco's capitalization in each such
Operating Company and which approvals shall be sought promptly after the
Effective Date.
(c) Following the actions described in the preceding clauses (a) and
(b), Newco shall contribute its equity interests in each of the
Operating Companies for additional equity interests in the Brazilian
Holding Company that is the parent of such Operating Company.
SECTION 2.03. Exchange of QUALCOMM Loan. QUALCOMM, in its capacity
as a ▇▇▇▇▇▇ ▇.▇. Vendor, shall assign to Newco all outstanding Vendor Loans from
QUALCOMM to ▇▇▇▇▇▇ ▇.▇. in consideration for a note issued by Newco to QUALCOMM
in the same aggregate principal amount of such Vendor Loans in substantially in
the form of Exhibit E. Such assignment shall be effected pursuant to an
assignment agreement substantially in the form of Exhibit A-2.
SECTION 2.04. Capitalization of Newco by Existing Shareholders.
(a) The Existing Shareholders or their affiliates shall, pursuant to
the Shareholders Agreement, exchange (directly or indirectly through a
subsidiary or affiliate) all of their equity in the Brazilian Holding
Companies held immediately prior to the Restructuring for Ordinary
Shares in Newco in the amounts and allocations as set
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forth in Schedule 1 of the Shareholders Agreement, which exchange shall
be pursued promptly following the Effective Date.
(b) Each of the Existing Shareholders or their affiliates shall,
pursuant to the Shareholders Agreement, exchange all such Existing
Shareholder's equity in Vento Parent for one Ordinary Share in Newco
promptly following the Effective Date.
SECTION 2.05. Contribution of AFACs.
(a) Each of QUALCOMM do Brasil Ltda. and VeloCom do Brasil Ltda.
shall convert all AFACs made by it to the Brazilian Holding Companies
(and in turn to the Operating Companies) into shares in the Brazilian
Holding Companies promptly following the Effective Date.
(b) Each of QUALCOMM and VeloCom, as a New Shareholder, shall
pursuant to the Shareholders Agreement, exchange, directly or through a
subsidiary or affiliate, all equity in the Brazilian Holding Companies
of each of QUALCOMM do Brasil Ltda. and VeloCom do Brasil Ltda., and
resulting from the AFACs conversions described in paragraph (a) above,
for Ordinary Shares in Newco in the amounts and allocations as set forth
in Schedule 2 of the Shareholders Agreement, which exchange shall be
pursued promptly after the Effective Date.
SECTION 2.06. Issuance of Newco Warrants. The Vendors (except
QUALCOMM) shall receive warrants for stock of Newco in the amounts listed on
Schedule 7 of the Shareholders Agreement (the Warrants), exercisable for a
period of five years after the Effective Date, which Warrants shall be
substantially in the form of Exhibit F.
SECTION 2.07. Newco Registration Rights. The shareholders of Newco,
including (without limitation) the Vendors, shall receive certain registration
rights with respect to any stock of Newco such shareholder possesses, and in the
case of the Vendors following any exercise of the Warrants, which rights shall
be set forth pursuant to a registration rights agreement substantially in the
form of Exhibit G.
SECTION 2.08. Issuance of Management Stock Options in Newco. Newco
shall provide a stock option plan in respect of Newco Ordinary Shares for the
benefit of management of the Operating Companies, such plan to be set forth in a
management stock option agreement, to be implemented at the direction of the
majority of the Board of Directors of Newco within 90 days after the Effective
Date. Such stock option plan will allow for the issuance of options for up to
five percent of the fully diluted Ordinary Shares of Newco, issuable with a
strike price equal to the fair market value at the time of issuance.
SECTION 2.09. Subsequent Acts. The parties hereto agree that,
notwithstanding anything in this Agreement to the contrary, upon the occurrence
of the Effective Date, the Restructuring shall be deemed to have occurred for
all purposes of the Transaction Documents, notwithstanding that certain actions
contemplated by Article II are permitted to occur following the Effective Date.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
Obligors
Each Obligor, as to itself, represents and warrants, individually
and not jointly, as of the Effective Date to each other party hereto as follows
in Sections 3.01 through 3.08.
SECTION 3.01. Organization; Powers. Such Obligor is duly organized,
validly existing and, where applicable, in good standing under the laws of the
jurisdiction of its organization, has all requisite power and authority to carry
on its business as now conducted and, except where the failure to do so,
individually or in the aggregate, would not be reasonably likely to result in a
Material Adverse Effect in respect of such Obligor, is qualified to do business
in, and, where applicable, is in good standing in, every jurisdiction where such
qualification is required.
SECTION 3.02. Authorization; Enforceability. The Transactions to be
performed by such Obligor are within such Obligor's corporate powers and have
been duly authorized by all necessary corporate and shareholder action. This
Agreement has been duly executed and delivered by such Obligor and constitutes,
and each of the other Transaction Documents to which it is a party when executed
and delivered by such Obligor will constitute, a legal, valid and binding
obligation of such Obligor, enforceable against such Obligor in accordance with
its terms, except as such enforceability may be limited by (a) bankruptcy,
concordata, insolvency, reorganization, moratorium or similar laws of general
applicability affecting the enforcement of creditors' rights and (b) the
application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions
to be performed by such Obligor (a) do not require any consent or approval
(including any exchange control approval) of, registration or filing with, or
any other action by, any Governmental Authority (including ANATEL and the
Central Bank with respect to such Transactions), except for (i) such as have
been obtained or made and are in full force and effect, (ii) notarization and
consularization of Transaction Documents executed outside of Brazil, (iii) prior
authorizations of the Central Bank with respect to the conversion of Vendor
Loans held by Newco for equity in its Brazilian subsidiaries (including the
Operating Companies) and the amendment of the Certificate of Registration of
Foreign Investment to evidence the current foreign shareholders and their
ownership interests, (iv) those that the failure to have or obtain will not be
material in respect of such Obligor, and (v) Brazilian Antitrust post-Effective
Date filings and approvals, (b) will not violate any applicable law or
regulation (including regulations of the Central Bank or ANATEL) or the charter,
by-laws or other organizational documents of such Obligor or any order of any
Governmental Authority (including ANATEL) having jurisdiction, (c) will not
violate or result in a default under any indenture, agreement or other
instrument binding upon such Obligor or its assets and (d) as to any Obligor
that is an Operating Company will not result in the invalidity of the Mirror
license of such Operating Company.
- 10 -
SECTION 3.04. Compliance with Laws and Agreements. Such Obligor is
in compliance with all laws, regulations and orders of any Governmental
Authority applicable to it or its property and all indentures, agreements and
other instruments binding upon it or its property, except where the failure to
do so, individually or in the aggregate, would not have a Material Adverse
Effect in respect of such Obligor.
SECTION 3.05. Taxes. Such Obligor has filed or caused to be filed
all material Tax returns and reports required to have been filed and has paid or
caused to be paid all Taxes required to have been paid by it, except Taxes that
are being contested in good faith by appropriate proceedings and for which such
Person has set aside on its books adequate reserves.
SECTION 3.06. Newco Ownership. In the case only of Newco, after
giving effect to the actions contemplated by Article II, Newco shall directly or
indirectly own all of the shares of the Operating Companies.
SECTION 3.07. Solvency. Immediately after giving effect to the
actions contemplated by Article II, such Obligor is Solvent.
SECTION 3.08. Disclosure. The information (taken as a whole) in each
document, certificate or written statement furnished to the Vendors or their
agents or advisors by or on behalf of each Obligor or New Shareholder on or
prior to the Effective Date with respect to the business, assets, results of
operation or financial condition of any Obligor was true and correct in all
material respects on the dates as of which such information was furnished;
provided that with respect to projections, estimates or other expressions of
view as to future circumstances, each Obligor represents only that such
information was prepared in good faith based upon assumptions as to all matters
material thereto believed to be reasonable at the time; provided, further, that
no representation or warranty is made that any projection, estimates, or other
expressions of view will actually be realized; and provided, further, that no
representation or warranty is furnished by any party to the Vendors or their
agents or advisors with respect to any legal analysis or any interpretation of
regulatory affairs that may have been furnished to the Vendors or their agents
or advisors by or on behalf of any Obligor or New Shareholder.
Other Parties
Each party to this Agreement other than the Obligors, in each case
as to itself (and in the case of the Vendors, as to its Brazilian subsidiaries),
represents and warrants, individually and not jointly, as of the Effective Date
to each other party hereto as follows in Sections 3.09 through 3.11.
SECTION 3.09. Organization; Powers. Such Person is duly organized,
validly existing and, where applicable, in good standing under the laws of the
jurisdiction of its organization, and has all requisite power and authority to
carry on its business as now conducted.
SECTION 3.10. Authorization; Enforceability. The Transactions to be
performed by such Person are within such Person's corporate powers and have been
duly authorized by all necessary corporate and shareholder action. This
Agreement has been duly executed and delivered by such Person and constitutes,
and each of the other Transaction Documents to which it is a party when executed
and delivered by such Person will constitute, a legal, valid and
- 11 -
binding obligation of such Person, enforceable against such Person in accordance
with its terms, except as such enforceability may be limited by (a) bankruptcy,
concordata, insolvency, reorganization, moratorium or similar laws of general
applicability affecting the enforcement of creditors' rights and (b) the
application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
SECTION 3.11. Governmental Approvals; No Conflicts. The Transactions
to be performed by such Person (a) do not require any material consent or
approval of, registration or filing with, or any other action by, any
Governmental Authority, except for (i) such as have been obtained or made and
are in full force and effect, (ii) notarization and consularization of
Transaction Documents executed outside of Brazil and (iii) those that the
failure to have or obtain will not have a material adverse effect on its ability
to perform its obligations under the Transaction Documents to which it is a
party, (b) will not violate any applicable law or regulation (including
regulations of the Central Bank or ANATEL, if applicable) or the charter,
by-laws or other organizational documents of such Person or any order of any
Governmental Authority having jurisdiction and (c) will not violate or result in
a default under any indenture, agreement or other instrument binding upon such
Person or its assets.
New Shareholders
SECTION 3.12. New Shareholder Representation. Each New Shareholder,
as to itself, represents and warrants, individually and not jointly, as of the
Effective Date, that it is not engaged in ongoing negotiations (or ongoing
discussions regarding the substantive terms of), nor does it have agreements or
understandings, with third parties regarding, any direct or indirect sale to
such parties of any equity interest in any Obligor, except as otherwise
contemplated by the Transaction Documents, it being agreed and understood that
discussions with the persons or entities (or their affiliates) listed in
Schedule IV have previously occurred.
ARTICLE IV
CONDITIONS
The obligations of the parties to this Agreement to effect the
Restructuring shall be subject to the satisfaction, in all material respects, of
each of the following conditions:
(a) Executed Counterparts. Receipt from each other party hereto
of a counterpart of this Agreement and each other Transaction Document
to which such other party is intended to be a party signed on behalf of
such other party or satisfactory written evidence (which may include a
fax transmission of signed signature pages) that such other party has
signed a counterpart of this Agreement and each such other Transaction
Document, in any case notarized as necessary.
(b) Organizational Documents. Receipt of such documents and
certificates as may be reasonably requested relating to (1) the
organization, existence and (if relevant) good standing of each Obligor,
and the authorization by each Obligor of the Transactions to be
performed by such Obligor, (2) the authorization by each Existing
Shareholder and New Shareholder of the Transactions to be performed by
such
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Shareholder and (3) satisfactory evidence of all governmental filings
and approvals required to effect the Transactions (other than in respect
of any security interests related to the Transactions), all of which
shall be reasonably satisfactory to each of the Vendors.
(c) Opinions of Counsel. Receipt of favorable written opinions
in form and substance reasonably satisfactory to the Vendors (addressed
to the parties hereto and dated the Effective Date) of:
(i) ▇▇▇▇▇▇▇▇ ▇▇▇▇ Advogados, Brazilian counsel for the Operating
Companies and the Brazilian Holding Companies; and
(ii) ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for Newco.
(d) Secured and Unsecured Creditors. The Operating Companies
shall have reached agreement, in form and on terms reasonably
satisfactory to the parties hereto, with each secured and unsecured
creditor of the Operating Companies holding Indebtedness specified on
Schedule III for the restructuring of such Indebtedness to such
creditors.
(e) Approvals. All governmental and third party consents,
authorizations, approvals, notices, filings and any other acts necessary
(including any required to be delivered by ANATEL or the Central Bank)
in connection with the Transactions (other than in respect of any
security interests related to the Transactions) or in connection with
the continuing validity of the Mirror license in respect of each such
Operating Company shall have been obtained and be in full force and
effect, except for those referred to in subclauses (ii), (iii), (iv) and
(v) of Section 3.03(a).
(f) Representations and Warranties. The representations and
warranties of each other party in this Agreement and in each of the
other Transaction Documents to which such other party is a party, shall
be true and correct in all material respects on and as of the Effective
Date.
(g) Existing Shareholders. The Existing Shareholders shall have
reached agreement related to the Operating Companies and any related
matters with respect to any claims among such parties under shareholding
agreements for the Brazilian Holding Companies.
(h) VeloCom Solvency. VeloCom shall have delivered an officers'
certificate in substantially the form of Exhibit I.
(i) General Release. Receipt of general releases executed by
each party thereto in substantially the forms of Exhibits B-1 and B-2.
(j) Exchange of Indebtedness. The Vesper Sao Paulo S.A. Vendors
shall have exchanged all Vendor Loans to Vesper Sao Paulo Cayman for all
debt instruments issued by Vesper Sao Paulo S.A. to Vesper Sao Paulo
Cayman through execution and delivery of an exchange and assignment
agreement substantially in the form of Exhibit J, which exchange shall
occur immediately prior to the Restructuring
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upon receipt by the Vesper Sao Paulo S.A. Vendors of a favorable written
opinion in form and substance reasonably satisfactory to such Vendors of
▇▇▇▇▇▇▇▇ ▇▇▇▇ Advogados with respect to such exchange and assignment (it
being agreed and acknowledged, for the avoidance of doubt, that,
following such exchange, such debt instruments shall constitute Vendor
Loans).
(k) Furukawa Industrial S/A. The Obligors and Ericsson, for
itself and on behalf of its subsidiaries, shall have reached agreement,
in form and on terms satisfactory to the Obligors and Ericsson, for
itself and on behalf of its subsidiaries, with Furukawa Industrial S/A,
with respect to that certain indemnity arrangement between Ericsson, or
its subsidiaries, and Furukawa Industrial S/A for certain obligations
arising under the Ericsson Guaranty (as defined in the QUALCOMM/Ericsson
Note Purchase Agreement defined in the Common Terms Agreement referenced
in Recital B).
(l) Vendors. Each of Nortel Networks Limited and Lucent
Technologies Inc., for itself and on behalf of its subsidiaries, shall
have reached agreement and executed general releases with ▇▇▇▇▇▇
Corporation, for itself and on behalf of its subsidiaries, with respect
to any claims under supply agreements and other arrangements among such
parties related to the Operating Companies and Brazilian Holding
Companies.
All of the Transactions contemplated hereby to occur on the
Effective Date shall occur on the Effective Date in order for the Restructuring
to occur and, if any such Transaction does not so occur, none of the
Transactions will be deemed to have occurred.
ARTICLE V
COVENANTS AND AGREEMENTS
Each of the parties to this Agreement, specified below, individually
and not jointly, covenants and agrees, in each case as to itself, with the other
parties as follows.
SECTION 5.01. New Shareholder Contributions. The New Shareholders
will, on and subject to the terms and conditions of the Shareholders Agreement,
make equity contributions to Newco in the amounts as specified therein.
SECTION 5.02. Repair Services. Each Vendor that is, or whose
affiliate is, a party to a supply or related agreement that shall be terminated
as a condition precedent to the Effective Date agrees to provide ongoing repair
services to the relevant Operating Company, at such Operating Company's request,
for those products provided by such Vendor or affiliate thereof that would (had
such agreement not been terminated) have been subject to warranty by such Vendor
or affiliate (Covered Products) on terms to be determined in good faith, which
in the case of pricing and payment terms for spare or replacement parts or spare
or replacement equipment for Covered Products (Hardware Spares) or the provision
of installation and repair services for Hardware Spares or Covered Products, as
applicable, will be based on the next sentence (it being understood that such
Vendor or affiliate shall only be obligated to provide Hardware Spares for a
period of 18 months from the Effective Date and only to the extent such
- 14 -
Hardware Spares are otherwise available). Each of the relevant Operating Company
and such Vendor (also on behalf of its affiliates) agrees to negotiate in good
faith on pricing and payment terms for the sale of Hardware Spares and the
provision of installation and repair services for Hardware Spares or Covered
Products, as applicable, to the relevant Operating Company (it being understood
that the Vendors are not obligated to extend trade credit to any Operating
Company, that all of the aforesaid supply and related agreements shall have been
and shall continue to remain terminated in all respects pursuant to the terms of
the releases delivered in accordance with paragraph (i) of Article IV hereof,
and that at no time shall the Vendors be obligated to provide any Hardware
Spares or installation or repair services for Hardware Spares or Covered
Products, as applicable, under the terms of such terminated supply and related
agreements); provided that in the event that agreement on pricing terms cannot
be reached in respect of Hardware Spares manufactured by such Vendor or its
affiliate (Manufactured Spares) or installation or repair services for
Manufactured Spares or Covered Products manufactured by such Vendor or its
affiliate (Manufactured Products) and the relevant supply or related agreements
in effect prior to termination on the Effective Date contain specific pricing
terms for such Manufactured Spares and installation and repair services for
Manufactured Spares or Manufactured Products, as applicable, then the pricing
terms shall be those specified in the relevant supply or related agreement
(either in Dollars or converted to Dollars as of the Effective Date), including
any price adjustments therein provided, plus, in the case of pricing originally
denominated in Reals, 25%. For the avoidance of doubt, the proviso to the
immediately preceding sentence shall not apply to (i) installation or repair
services other than installation or repair of Manufactured Spares or
Manufactured Products, as applicable, or (ii) Manufactured Spares or
installation and repair services for which the relevant supply or related
agreement does not contain specific pricing terms (for example, to the extent
such agreement specifies "most favored customer" or similar pricing or provides
for "free" updates and the like). Without limiting any obligations that it may
have under applicable law in respect thereof, each Vendor shall (and shall cause
its affiliates to) in good faith provide customary last-time buy provisions to
the relevant Operating Company with respect to any Manufactured Spares and will
provide to the relevant Operating Company prior notice of its discontinuance of
any such Manufactured Spares. To the extent that a Vendor agrees to provide
trade credit, and without obligating such Vendor to so provide such trade
credit, terms of payment shall be subject to the relevant Vendor's customer
credit limits set at the Vendor's sole discretion, with customary milestones and
associated progress payments for Manufactured Spares, delivery and the provision
of installation and repair service. The Operating Companies shall secure all
payment obligations to the Vendors by customary forms of payment security, such
as letters of credit, in form and substance reasonably satisfactory to the
Vendors.
SECTION 5.03. Public Disclosure. Each of the parties hereto agrees
to consult with each other party and obtain each such party's consent (which
shall not be unreasonably withheld) before issuing any press release or
otherwise making any public disclosure with respect to any of the Transactions
and shall not issue any such press release or make any such public statement
prior to such consultation and consent, except as may be required by applicable
laws or regulations or any listing agreement with a national securities
exchange; provided that the consent of any party hereto that is a controlled
subsidiary of any other party hereto may be provided by such other party; and
provided, further, that the parties intend to agree prior to the Effective Date
on releases to be initially issued by such parties in respect of the
Restructuring.
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ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Notices. All notices and other communications provided
for herein shall be in writing and shall be delivered by hand, mail or overnight
courier service, or sent by fax, as follows:
(a) If to VeloCom, VeloCom Cayman Brasil Holdings or VeloCom do
Brasil Ltda.:
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Executive Officer
With Copy to: General Counsel
(b) If to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ or QUALCOMM do Brasil Ltda.:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With copy to:
Attention: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(c) If to any Operating Company or Brazilian Holding Company:
Vesper Sao Paulo S.A.
▇▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇/▇▇(▇)▇▇▇▇▇
05477-000 Sao Paulo SP Brasil
Attention: General Counsel
Fax: ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
Phone: ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
With copy to:
VeloCom Inc.
Attention: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Attention: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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(d) If to Newco:
Vesper Holding, Ltd.
c/▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇
▇▇▇▇▇▇ House
P.O. Box 309
▇▇▇▇▇▇ Town
Grand Cayman, Cayman Islands
With copy to:
VeloCom Inc.
Attention: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Attention: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(e) If to ▇▇▇▇ Canada International (Brazil Telecom I) Limited
or ▇▇▇▇ Canada International (Megatel) Limited:
▇▇▇▇ Canada International Inc.
1000 de la Gauchetiere St. West
Suite 1100
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: Vice-President, Law and Corporate; Secretary
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(f) If to Lucent Technologies Inc.:
▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
(g) If to Nortel Networks Limited:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: Treasurer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
- 17 -
With copy to:
Nortel Networks (CALA) Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Secretary
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
(h) If to Telefonaktiebolaget LM Ericsson (Publ.):
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: CFO
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
(i) If to ▇▇▇▇▇▇ Corporation:
▇▇▇▇▇▇ Corporation
Building A/1250
▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
With copy to:
▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ Corporation
Microwave Communications Division
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Any party hereto may change its address or fax number for notices
and other communications hereunder by notice to the other parties hereto. All
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be effective upon receipt.
SECTION 6.02. No Deemed Waivers; Remedies Cumulative. No failure or
delay by any party to this Agreement in exercising any right or power hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of each party
hereunder are cumulative and are not exclusive of any rights or remedies that it
would otherwise have.
- 18 -
SECTION 6.03. Expenses; No Indemnification. Each party hereto and to
the other Transaction Documents shall be solely responsible for any and all
out-of-pocket expenses, fees, charges, disbursements of any counsel and any
other costs it or any of its agents incurs in connection with the negotiation,
execution and delivery of this Agreement and the other Transaction Documents
(whether or not Restructuring shall be consummated). For the avoidance of doubt,
any prior, present or future claim for expenses or other costs under the Vendor
Loans that may have accrued to the Vendors or their subsidiaries (including the
Local Vendors) shall be deemed extinguished in their entirety pursuant to the
releases to be completed pursuant to Article 4(i). Notwithstanding the
foregoing, any expenses or other costs incurred by a New Shareholder may be paid
by any Obligor (including Newco) if such New Shareholder contributes additional
equity to Newco for the benefit such Obligor pursuant to Section 3.2(c) of the
Shareholders Agreement contemporaneously with such payment.
SECTION 6.04. Survival. All covenants, agreements, representations
and warranties made by each party herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the Effective Date,
regardless of any investigation made by any such other party or on its behalf
and notwithstanding that such other party may have had notice or knowledge of
any breach or incorrect representation or warranty as of the Effective Date.
SECTION 6.05. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. The Transaction
Documents constitute the entire agreement between and among the parties relating
to the subject matter thereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter thereof. This
Agreement shall become effective when it shall have been executed by all parties
listed on the signature pages hereto, and thereafter shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns. Delivery of an executed counterpart of a signature page to this
Agreement by fax shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 6.06. Severability. Any provision of this Agreement held to
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 6.07. Governing Law; Jurisdiction; Service of Process; Etc.
(a) Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO
THE CONFLICTS OF LAW PRINCIPLES THEREOF OTHER THAN SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK).
- 19 -
(b) Submission to Jurisdiction. Each party to this Agreement hereby
agrees that any suit, action or proceeding with respect to this Agreement, the
other Transaction Documents or any judgment entered by any court in respect
thereof may be brought in the United States District Court for the Southern
District of New York, in the Supreme Court of the State of New York sitting in
New York County (including its Appellate Division), or in any other appellate
court in the State of New York, as the party commencing such suit, action or
proceeding may elect in its sole discretion; and each party hereby irrevocably
submits to the non-exclusive jurisdiction of such courts for the purpose of any
such suit, action, proceeding or judgment. Each party to this Agreement further
submits, for the purpose of any such suit, action, proceeding or judgment
brought or rendered against it, to the appropriate courts of the jurisdiction of
its domicile.
(c) Process Agent. Each of Newco and each Operating Company,
Brazilian Holding Company and New Shareholder hereby agrees that service of all
writs, process and summonses in any such suit, action or proceeding brought in
the State of New York may be made upon Corporation Service Company, presently
located at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇. (the Process Agent),
and each of Newco and each Operating Company, Brazilian Holding Company and New
Shareholder hereby confirms and agrees that the Process Agent has been duly and
irrevocably appointed as its agent and true and lawful attorney-in-fact in its
name, place and stead to accept such service of any and all such writs, process
and summonses, and agrees that the failure of the Process Agent to give any
notice of any such service of process to Newco or any Operating Company,
Brazilian Holding Company or New Shareholder, as the case may be, shall not
impair or affect the validity of such service or of any judgment based thereon.
Each of Newco and each Operating Company, Brazilian Holding Company and New
Shareholder hereby further irrevocably consents, and each other party to this
Agreement consents, to the service of process in any suit, action or proceeding
in such courts by the mailing thereof by registered or certified mail, postage
prepaid, at its address set forth in Section 6.01.
(d) Other Service. Nothing herein shall in any way be deemed to
limit the ability of the any party hereto to serve any such writs, process or
summonses in any other manner permitted by applicable law or to obtain
jurisdiction over any other party in such other jurisdictions, and in such
manner, as may be permitted by applicable law.
(e) Waiver of Venue. Each party to this Agreement hereby irrevocably
waives any objection that it may now or hereafter have to the laying of the
venue of any suit, action or proceeding arising out of or relating to this
Agreement or any other Transaction Document brought in the Supreme Court of the
State of New York, County of New York or in the United States District Court for
the Southern District of New York, and hereby further irrevocably waives any
claim that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum.
SECTION 6.08. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON
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CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 6.09. Headings. Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 6.10. Confidentiality. Each party hereto agrees to maintain
the confidentiality of the Information (as defined below) and not disclose the
Information to any third party without the prior written consent of all other
parties hereto, except that Information may be disclosed (i) to such party's
directors, officers, employees, affiliates, partners, controlling Persons and
agents, including accountants, legal counsel, financial advisors, consultants
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential in accordance with the terms of
this Section), (ii) to the extent requested by any regulatory authority, (iii)
to the extent required by applicable laws or regulations or by any subpoena,
civil investigative demand or similar legal process, (iv) to any other Person
that, as of the date hereof, holds debt securities or other instruments of
Indebtedness of the Operating Companies, (v) to any other Person that seeks to
hold debt or equity securities of any of the Obligors (provided that such Person
agrees to be bound by terms substantially similar to those set forth in this
Section); (vi) subject to an agreement containing provisions substantially the
same as those of this Section, to (a) any assignee of any such party of its
rights or obligations under this Agreement and the other Transaction Documents
to which it is a party or (b) any assignee of any Person holding existing debt
securities of an Obligor; or (vii) as permitted by Section 5.03; provided that,
with respect to clauses (ii) and (iii) only, such party has not taken action
that caused or could reasonably have been foreseen to cause such legal
obligation for disclosure and such action (other than entering into this
Agreement) could have reasonably been avoided; provided, further, that if such
party must provide information for any regulatory filing, such party shall
request confidential treatment with respect to all such filings in respect of
the Transactions. For the purposes of this Section, Information means all
information received by such party from any other party to this Agreement or any
other Transaction Document relating to such other party or its business provided
in respect of the Transactions (including, without limitation, the Supply
Agreements Information (as such term is defined in the Form of ▇▇▇▇▇▇ ▇.▇.
Release set forth as Exhibit B-1 hereto) and the Supply Contract Information (as
such term is defined in the Form of Vesper Sao Paulo S.A. Release set forth as
Exhibit B-2 hereto)); provided that, in the case of information received from
such other party after the date hereof, such information is clearly identified
at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information. Nothing in this Section
shall be prevent the use of Information in connection with the assertion of any
defense or claim by any party hereto.
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SECTION 6.11. Amendment. None of the terms or provisions of this
Agreement may be amended, supplemented or otherwise modified without the consent
of each of the parties hereto.
[The remainder of this page intentionally left blank]
S- 1
This is a signature page of the Restructuring Agreement and shall constitute an
integral part hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Restructuring Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
VESPER SAO PAULO S.A.
By:_____________________
Name:
Title:
By:_____________________
Name:
Title:
▇▇▇▇▇▇ ▇.▇.
By:_____________________
Name:
Title:
By:_____________________
Name:
Title:
VESPER SAO PAULO CAYMAN
By:_____________________
Name:
Title:
By:_____________________
Name:
Title:
S- 2
This is a signature page of the Restructuring Agreement and shall constitute an
integral part hereof.
VESPER HOLDING SAO PAULO S.A.
By:_____________________
Name:
Title:
By:_____________________
Name:
Title:
VESPER HOLDING S.A.
By:_____________________
Name:
Title:
By:_____________________
Name:
Title:
S- 3
This is a signature page of the Restructuring Agreement and shall constitute an
integral part hereof.
Sworn to before me this VESPER HOLDING, LTD.
___ day of ____________.
_______________________ By:_____________________
Notary Public Name:
Title:
S- 4
This is a signature page of the Restructuring Agreement and shall constitute an
integral part hereof.
Sworn to before me this VELOCOM CAYMAN BRASIL HOLDINGS
___ day of ____________.
_______________________ By:_____________________
Notary Public Name:
Title:
Sworn to before me this VELOCOM INC.
___ day of ____________.
_______________________ By:_____________________
Notary Public Name:
Title:
VELOCOM DO BRASIL LTDA.
By:_____________________
Name:
Title:
S- 5
This is a signature page of the Restructuring Agreement and shall constitute an
integral part hereof.
Sworn to before me this QUALCOMM DO BRASIL LTDA.
___ day of ____________.
_______________________ By:_____________________
Notary Public Name:
Title:
Sworn to before me this ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
___ day of ____________.
_______________________ By:_____________________
Notary Public Name:
Title:
S- 6
Sworn to before me this ▇▇▇▇ CANADA INTERNATIONAL (BRAZIL
___ day of ____________. TELECOM I) LIMITED
_______________________ By:_____________________
Notary Public Name:
Title:
Sworn to before me this ▇▇▇▇ CANADA INTERNATIONAL (MEGATEL)
LIMITED
___ day of ____________.
_______________________ By:_____________________
Notary Public Name:
Title:
S- 7
This is a signature page of the Restructuring Agreement and shall constitute an
integral part hereof.
Sworn to before me this NORTEL NETWORKS LIMITED
___ day of ____________.
_______________________ By:_____________________
Notary Public Name:
Title:
S- 8
This is a signature page of the Restructuring Agreement and shall constitute an
integral part hereof.
Sworn to before me this LUCENT TECHNOLOGIES INC.
___ day of ____________.
_______________________ By:_____________________
Notary Public Name:
Title:
S- 9
This is a signature page of the Restructuring Agreement and shall constitute an
integral part hereof.
Sworn to before me this TELEFONAKTIEBOLAGET LM ERICSSON
___ day of ____________. (PUBL.)
_______________________ By:_____________________
Notary Public Name:
Title:
S- 10
This is a signature page of the Restructuring Agreement and shall constitute an
integral part hereof.
Sworn to before me this ▇▇▇▇▇▇ CORPORATION
___ day of ____________.
_______________________ By:_____________________
Notary Public Name:
Title:
