AGREEMENT OF PROMISE OF ASSIGNMENT AND TRANSFER
OF PERMISSIONS
BY MEANS OF THIS PRIVATE INSTRUMENT:
I. SAN FRANCISCO COMUNICAC'ES LTDA., a commercial limited liability company
organized and existing under the laws of the Federative Republic of
Brazil, with head offices in the City of Rio de Janeiro, State of Rio de
Janeiro, at Xxx Xxxxxx Xxxxxxxx, 000, office No. 403, registered as
taxpayer under CGC No. 42.582.569/0001-52, herein represented by its duly
empowered attorney-in-fact Xx. XXXXXXX XXXXXX DOS XXXXXX, Portuguese
citizen, married, businessman, resident and domiciled in the City of Rio
de Janeiro, State of Rio de Janeiro, at Xxx Xxxxxxx, 000, xxxxxxxxx Xx.
000, Xxxxx 00, bearer of identity card number RNE W175237/9 and, bearer of
CPF 019899447/87, 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 PROMISING TRANSFEROR 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 505, 506, 507, 508, 509, all dated as of July, 18, 1994 and
published in the Official Gazette of July, 28, 1994, except for
Ordinance 506 which was published in the Official Gazette as of
August, 04, 1994
(the "Permissions"), which attached hereto as Exhibit I, are an
integral part hereof as if they had been herein transcribed in full;
2. 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");
3. 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;
4. The PROMISING TRANSFEREE has expressed its wish to acquire the
Permissions and the PROMISING TRANSFEROR agrees to transfer them to
the PROMISING TRANSFEREE;
5. The PROMISING TRANSFEREE desires to eventually purchase said
Permissions, to which the PROMISING TRANSFEROR agrees;
6. 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, as well as all and any
new Permissions, namely those that may be granted as a result of a
transformation of the extension or modallity of the exploitation of the
Services, including any and all inherent rights.
2
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, as well as
all and any new Permissions, namely those that may be granted as a result of a
transformation of the extension or modallity of the exploitation of the
Services, including any and all inherent rights.
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: It is understood that the transfer or transfers of the
Permissions include the transfer to the PROMISING TRANSFEREE of any
equipment, cables, transmitters, receivers and other infrastructure, and
all user's rights related to such infrastructure then owned or entitled to
the PROMISING TRANSFEROR and affected to the service.
Fifth 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.
3
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.
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 Second and
Third Paragraphs below, has been allowed.
4
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. The PROMISING
TRANSFEREE will direct the PROMISING TRANSFEROR for all measures to be
taken as per this paragraph.
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 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 limited liability company
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
5
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, enforceable against it in
accordance with its terms.
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 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.
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
6
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.
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) take all action necessary 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;
instructions for such actions shall be given by the PROMISING
TRANSFEREE to the PROMISING TRANSFEROR; or
(c) not sell, transfer or otherwise dispose of any of the Permissions or
Rights or permit any lien, charge, pledge, mortgage, security
interest or other encumbrance of any kind to exist thereon.
7
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
8.1. As consideration for the transfer of all the Permissions, now
promised, the PROMISING TRANSFEROR shall be entitled to the increase
of value of its assets and rights arising from technological,
organizational, operational and managing goodwill developed by the
PROMISING TRANSFEREE, in accordance with the Operating Agreement.
8.2. The increase of value to which the PROMISING TRANSFEROR shall be
entitled is that verified from the date hereof until the date upon
which all the Permissions have been transferred to the PROMISING
TRANSFEREE, by means of a direct or indirect mechanism of transfer.
8.3. The failure of the Promising Transferee 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 a result of the action or inaction of the
government or of a regulatory authority, such as the Ministry of
Communications of Brazil, but of the PROMISING TRANSFEROR fault,
shall give rise to the forfeit of its right to such increase of
value of its assets and rights.
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
8
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.
9
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, 0000
/x/ Xxxxxxx Xxxxxx dos Xxxxxx
------------------------------------------
SAN FRANCISCO COMUNICACOES LTDA.
Xxxxxxx Xxxxxx dos Xxxxxx
Attorney-in-fact
/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
10
