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EXHIBIT 10.11
TECHNICAL SERVICES AGREEMENT
MADE AND ENTERED INTO AS OF
MAY 22, 2000
BETWEEN
VELOCOM INC.
AND
VESPER SAO PAULO S.A.
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TABLE OF CONTENTS
1. DEFINITIONS ............................................................. 4
2. SUPPLY OF SERVICES ...................................................... 8
2.1 SUPPLY OF SERVICES AND CONSULTANTS .................................. 8
2.2 RFS ................................................................. 8
2.3 VELOCOM PROPOSAL .................................................... 8
2.4 RFS ORDER ........................................................... 8
2.5 SUPPLY OF CONSULTANTS ............................................... 8
2.6 CANCELLATION OF AN RFS ORDER ........................................ 9
2.7 QUALIFICATIONS OF CONSULTANTS ....................................... 9
2.8 AUTHORIZED REPRESENTATIVE ........................................... 9
2.9 EMPLOYMENT RELATIONSHIP ............................................. 9
2.10 DEGREE OF CARE ...................................................... 9
2.11 RIGHT OF INSPECTION AND RECALL ...................................... 10
2.12 DISCIPLINE AND DISMISSAL ............................................ 10
2.13 COSTS TO DATE OF RECALL ............................................. 10
2.14 SUBSTITUTE CONSULTANT ............................................... 10
2.15 INSURANCE ........................................................... 10
2.16 SOFTWARE AND LICENSE COSTS .......................................... 11
2.17 DELIVERABLES ........................................................ 11
2.18 THIRD PARTY SERVICES AND GOODS ...................................... 11
2.19 PROJECT REVIEW COMMITTEE ............................................ 11
3. COSTS ................................................................... 12
3.1 COSTS ............................................................... 12
3.2 PAYMENT BY VESPER ................................................... 12
3.3 EXAMINATION OF COSTS BY VESPER ...................................... 12
3.4 PRIOR COSTS ......................................................... 12
4. TAXES ................................................................... 13
4.1 PAYMENTS FREE AND CLEAR OF TAXES .................................... 13
4.2 TAX PAYMENTS BY VESPER .............................................. 13
4.3 REIMBURSEMENT BY VESPER ............................................. 13
4.4 STAMP DUTIES, DOCUMENTARY TAXES AND LEVIES .......................... 13
4.5 TAX STRUCTURE ....................................................... 13
5. PAYMENT TERMS ........................................................... 14
5.1 INVOICES ............................................................ 14
5.2 INTEREST ............................................................ 14
5.3 CURRENCY ............................................................ 14
6. DELIVERABLES AND INTELLECTUAL PROPERTY .................................. 14
6.1 OWNERSHIP ........................................................... 14
6.2 NO TRANSFER OF RIGHTS ............................................... 14
6.3 PROVISION OF SIMILAR SERVICES BY VELOCOM ............................ 15
6.4 ENHANCEMENTS ........................................................ 15
6.5 LICENSE TO USE DELIVERABLES AND ENHANCEMENTS ........................ 15
7. CONFIDENTIAL INFORMATION ................................................ 15
7.1 CONFIDENTIALITY OBLIGATION .......................................... 15
7.2 USE OF CONFIDENTIAL INFORMATION ..................................... 16
7.3 FURTHER UNDERTAKINGS ................................................ 16
7.4 NON-CONFIDENTIAL INFORMATION ........................................ 16
7.5 COMPELLED DISCLOSURE ................................................ 16
7.6 RETURN OF INFORMATION ............................................... 17
8. LIABILITY ............................................................... 17
8.1 DEGREE OF CARE ...................................................... 17
8.2 INDEMNIFICATION ..................................................... 17
8.3 DIRECT DAMAGES ...................................................... 18
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9. ADDITIONAL RESPONSIBILITIES OF THE PARTIES ............................. 18
9.1 ADDITIONAL RESPONSIBILITIES OF VESPER ............................... 18
9.2 ADDITIONAL RESPONSIBILITIES OF VELOCOM .............................. 18
10. FORCE MAJEURE .......................................................... 18
10.1 NO DEFAULT OR LIABILITY ............................................. 18
10.2 NOTICE .............................................................. 19
11. TERM AND TERMINATION ................................................... 19
11.1 TERM ................................................................ 19
11.2 TERMINATION BY VELOCOM .............................................. 20
11.3 TERMINATION BY VESPER ............................................... 20
11.4 COSTS INCURRED PRIOR TO TERMINATION ................................. 21
11.5 TERMINATION WITHOUT PREJUDICE TO OTHER RIGHTS ....................... 21
11.6 NO RELEASE OF LIABILITY ............................................. 21
12. ASSIGNMENT ............................................................. 21
13. WAIVER ................................................................. 22
13.1 FAILURE TO EXERCISE NOT TO OPERATE AS WAIVER ........................ 22
13.2 WAIVER IN WRITING ................................................... 22
13.3 NO DEEMED WAIVER .................................................... 22
14. NOTICES ................................................................ 22
15. GOVERNING LAW .......................................................... 23
16. DISPUTE RESOLUTION ..................................................... 23
16.1 PROCEDURE ........................................................... 23
16.2 ARBITRATION ......................................................... 23
17. ORAL EXPLANATION: AMENDMENTS ........................................... 24
18. NON-SOLICITATION ....................................................... 24
19. SEVERABILITY ........................................................... 24
20. LANGUAGE ............................................................... 24
21. RELATIONSHIP OF THE PARTIES ............................................ 25
22. RIGHTS AND REMEDIES .................................................... 25
23. COUNTERPARTS ........................................................... 25
24. FURTHER ASSURANCES ..................................................... 25
25. CONSENTS ............................................................... 25
26. EXPENSES ............................................................... 25
27. THIRD-PARTY BENEFICIARIES .............................................. 25
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TECHNICAL SERVICES AGREEMENT made and entered into as of May 22, 2000 between
Velocom Inc. ("VELOCOM"), a corporation organized under the laws of the State of
Delaware, United States of America, having its principal office at 6400 South
Fiddlers ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of
America 80111, and Vesper Sao Paulo S.A. ("VESPER"), a sociedade anonima
organized under the laws of Brazil, having its registered office at Av. das
Nacoes Unidas, no. 4,777, 12nd floor, in the city and state of Sao Paulo,
Brazil, registered with the Brazilian Registry of Legal Entities (CNPJ) n(o)
02.629.188/0001-67 (each a "PARTY" and collectively the "PARTIES").
WHEREAS Vesper has been awarded a regional operating license (the "LICENSE") to
provide fixed telephone services in the State of Sao Paulo of Brazil (the
"TERRITORY") and has entered into an agreement with the Brazilian Government
setting out the terms of authorization in respect thereof;
WHEREAS Velocom has acquired certain experience, Know-How (as defined herein),
Intellectual Property (as defined herein), trained personnel and other
capabilities in respect of high technology telecommunications engineering,
information technology and other matters related to the implementation,
expansion, enhancement, operation and maintenance of telecommunications
systems and services;
WHEREAS Velocom has been providing Consultants (as defined herein) that are
rendering certain Services (as defined herein) to facilitate the transfer of
Know-How to Vesper since July 30, 1999, up to the date of execution of this
Agreement ("Initial Term"); and
WHEREAS the Parties desire to enter into this Agreement for the purpose of
continuing to make available to Vesper and its employees such Consultants (as
defined herein) and such Services (as defined herein),
NOW, THEREFORE, the Parties hereto agree as follows:
1. DEFINITIONS
In this Agreement, unless the context otherwise requires, the following terms
shall have the meaning set opposite, namely:
"AFFECTED has the meaning ascribed thereto in Section 10.2;
PARTY"
"AGREEMENT" This Agreement, including its recitals and Schedules,
as amended from time to time;
"BUSINESS DAY" Any day on which banks in Sao Paulo, Brazil, and Denver,
Colorado, USA, are authorized or required by law to be
open to transact business;
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"BUSINESS" means the provision by Vesper of switched, fixed
telecommunications services in the Territory pursuant to
the License;
"COMMITTEE" Has the meaning ascribed thereto in Section 2.19;
"CONFIDENTIAL Any information, material and data of a confidential nature
INFORMATION" furnished orally, in any written, graphic, electronic,
magnetic or other tangible form including (but not limited
to) technical, financial and business information and
models, names of customers or partners (whether potential or
existing), proposed business deals, corporate strategies,
reports, plans, market and/or financial projections and
other data, of or relating to a Party, other than the
information listed in Section 7.4;
"CONSULTANT(S)" Person provided by Velocom to render Services to Vesper
under this Agreement who is individually present in Brazil
for a period or periods not exceeding six (6) months in any
calendar year, provided that such period or periods may be
extended by Vesper with the prior consent of the Consultant
and Velocom, which consent shall not unreasonably be
withheld or delayed by Velocom;
"COSTS" has the meaning ascribed thereto in Section 3.1;
"DELIVERABLES" Any written summary of results or recommendations or any
other data or data files, information or materials whether
in written, electronic or magnetic form, provided to Vesper
pursuant to the Services (as hereinafter defined) performed
under this Agreement, excluding all software or software
licenses, unless purchased by Vesper.
"ENHANCEMENTS Has the meaning ascribed thereto in Section 6.4;
"FORCE MAJEURE" Has the meaning ascribed thereto in Section 10.1;
"INDEMNIFIED Has the meaning ascribed thereto in Section 8.2;
PERSON"
"INITIAL TERM" Has the meaning ascribed thereto in the preamble
"INTELLECTUAL Means patents, copyrights, designs, know-how and other
PROPERTY" intellectual property rights which are protectable by law,
whether registered or unregistered and including
applications for any of the same;
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"KNOW-HOW" Means all technical knowledge, information and expertise of
Velocom in respect of high technology telecommunications
engineering, information technology and other matters
related to the implementation, expansion, enhancement,
operation and maintenance of telecommunications operations
and services, including but not limited to, processes,
techniques, methods, products, data and compositions;
"LICENSE" Has the meaning ascribed thereto in the recitals;
"LOSSES" Has the meaning ascribed thereto in Section 8.2;
"VESPER" Has the meaning ascribed thereto in the introductory
paragraph;
"OVERHEAD Has the meaning ascribed thereto in Section 3.1;
RECOVERY
COSTS"
"PARTY(IES)" Has the meaning ascribed thereto in the introductory
paragraph;
"PERSON(S)" Includes, without limitation, any individual, firm, company,
association, partnership, joint venture, trust, investment
company, pension fund or investment fund, or other entity,
or any government or any ministry, department or agency
thereof;
"PRIOR COSTS" Has the meaning ascribed thereto in Section 3.4;
"RECEIVING Has the meaning ascribed thereto in Section 7.1;
PARTY"
"REPRESENTATIVE" Means with respect to each Party, any authorized director,
officer, employee, consultant, advisor or agent of such
Party;
"RFS ORDER" Has the meaning ascribed thereto in Section 2.4;
"RFS" Has the meaning ascribed thereto in Section 2.2;
"RULES" Has the meaning ascribed thereto in Section 16.1(b);
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"SERVICES" Means such services to be provided by Velocom to Vesper
through the Consultants relating but not limited to: (i)
financial consulting and planning; (ii) strategic and
business planning; (iii) corporate development activities
including assistance in contract negotiations; (iv)
consulting assistance in procurement and selection of system
hardware; (v) human resources consulting; (vi) regulatory
matters; (vii) sales and marketing strategy; (viii) customer
services; (xi) financial reporting and accounting services;
and (x) transfer to Vesper of Know-How and Technical Data.
"SHAREHOLDERS" Has the meaning ascribed thereto in Section 6.5;
"TAXES" Has the meaning ascribed thereto in Section 4.1;
"TECHNICAL Means, technological developments, specifications,
DATA" documentation, instructions, technical reports and similar
information relating to the expansion, enhancement,
operation and maintenance of telecommunications operations
and services;
"TERM" has the meaning ascribed thereto in Section 11.1; and
"TERRITORY" has the meaning ascribed thereto in the recitals.
"VELOCOM GROUP includes, without limitation, any individual, firm,
COMPANY" corporation, company, joint venture, association, trust,
partnership or other entity, now or hereafter existing, that
directly or indirectly controls, is controlled by or is
under common control with, Velocom. For the purposes of this
definition "CONTROL" shall mean that one entity holds or is
beneficially entitled to, hold, directly or indirectly,
other than by way of security interest only, more than
twenty-five percent (25%) of the voting rights of the other
entity and "CONTROLLED" has a corresponding meaning;
"VELOCOM has the meaning ascribed thereto in Section 6.1;
PROPRIETARY
RIGHTS"
"VELOCOM" has the meaning ascribed thereto in the introductory
paragraph;
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The singular includes the plural and vice versa. Reference to one gender
includes reference to the other gender.
References herein to Sections and Schedules shall be taken as referring to
Sections and Schedules to this Agreement. Headings to Sections are for ease of
reference only and shall not affect the construction or interpretation of this
Agreement.
2. SUPPLY OF SERVICES
2.1 SUPPLY OF SERVICES AND CONSULTANTS
Subject to the terms and conditions of this Agreement, Velocom shall
provide from time to time Services and Consultants as shall be reasonably
requested by Vesper by an authorized Representative designated in
accordance with Section 2.8.
2.2 RFS
To request Services and Consultants under this Agreement, Vesper shall
submit a request for services (an "RFS") substantially in the form of
Schedule A, specifying the Services required, estimating the number of
Consultants needed to perform such Services and including such other
information as set out in Schedule A. Velocom agrees to use reasonable
efforts to meet any reasonable RFS submitted by Vesper.
2.3 VELOCOM PROPOSAL
As soon as reasonably possible from the receipt by Velocom of the RFS but
in no event later than fifteen (15) days from such receipt, Velocom shall
provide Vesper with a proposal to supply the Consultants required to
perform the requested Services, along with an estimate of: (i) the costs of
supplying such Consultants; and (ii) the timeline for providing such
Consultants.
2.4 RFS ORDER
The Parties shall jointly determine and agree upon: (i) the name of each
Consultant to be provided by Velocom to Vesper; (ii) the costs associated
to each Consultant in accordance with Schedule B; (iii) the date of
commencement of each Consultant; (iv) the duration of the Services to be
provided by such Consultant; (v) the location(s) in which the Services are
to be performed by such Consultant; and (vi) any other terms and conditions
relating to the Services and Consultants as agreed to by the Parties. The
above agreement shall be evidenced in an RFS order ("RFS ORDER")
substantially in the form of Schedule C. A separate RFS Order shall be
executed for each Consultant provided by Velocom to Vesper.
2.5 SUPPLY OF CONSULTANTS
Velocom shall supply each Consultant in accordance with the relevant RFS
Order. In the event a Consultant is unable to commence providing Services
to Vesper in accordance with the time schedule set out in the relevant RFS
Order due to circumstances and/or events that are within Velecom's
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control, Vesper shall have the option to cancel, at no cost, such RFS Order
and Velocom shall pay to Vesper any direct costs incurred by Vesper as a
direct result of Velocom's failure to provide the Consultant pursuant to
the terms and conditions of the RFS Order. Notwithstanding Section 2.6,
Vesper may also cancel, at no cost, any RFS Order in the event a Consultant
is unable to commence providing Services to Vesper in accordance with the
time schedule set out in the relevant RFS Order due to circumstances and/or
events that are out of Velocom's control.
2.6 CANCELLATION OF AN RFS ORDER
Vesper retains the right, upon written notice to Velocom to cancel any RFS
Order (whether or not the Consultant has actually commenced providing
Services) in which case, Vesper shall pay for: (i) the Costs, if any,
associated to the Services actually performed by Velocom up to the date of
cancellation; (ii) Velocom's reasonably incurred demobilization costs, if
any, resulting from such cancellation; and (iii) any other direct costs
incurred by Velocom as a direct result of the cancellation of the RFS Order
by Vesper.
2.7 QUALIFICATIONS OF CONSULTANTS
All Consultants supplied by Velocom shall be qualified and shall have
substantial experience performing the tasks (or substantially similar
tasks) for which such Consultants would be engaged by Velocom for Vesper.
Velocom shall use its reasonable efforts to make available to Vesper the
best individuals available for the Services requested.
2.8 AUTHORIZED REPRESENTATIVE
Velocom shall designate on the date hereof one or more of its senior
employees from its headquarters as the Representative(s) to whom all
inquiries are to be directed and with whom questions involving Consultants
and Services are to be coordinated. Velocom may change its designation(s)
in this respect by notice in writing to Vesper at any time. Vesper shall
also designate on the date hereof, one or more of its senior employees as
its authorized Representative(s) to request and coordinate Services from
Velocom. Vesper may change its designation(s) in this respect by notice in
writing to Velocom at any time. Costs relating to personnel designated
under this Section 2.8 and their activities shall be for the account of the
designating Party.
2.9 EMPLOYMENT RELATIONSHIP
Each Consultant supplied to Vesper under this Agreement shall (as the case
may be) remain the consultant, agent, independent contractor or employee of
Velocom (or any Velocom Group Company or third party, as the case may be).
2.10 DEGREE OF CARE
Vesper shall exercise the same degree of care in respect of each Consultant
as with employees of Vesper and, in any event, no less than the degree of
care required by any applicable laws of Brazil. Nothing is this Agreement
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shall require Vesper to pay or provide any employee benefits or other
payments required to be paid by Vesper to its employees under applicable
Brazilian law.
2.11 RIGHT OF INSPECTION AND RECALL
Velocom shall have the right, upon reasonable notice, to inspect during
normal business hours the working environment of any Consultant. Velocom
may recall any Consultant after consultation and reasonable notice to
Vesper if it reasonably determines that the working environment of such
Consultant does not comply with Brazilian laws (including without
limitation health and safety laws) or reasonable business practices.
2.12 DISCIPLINE AND DISMISSAL
Velocom shall retain the right to discipline and dismiss any Consultant for
cause (after consultation with Vesper; provided that such dismissal does
not adversely affect Vesper's business) and Vesper shall not and shall not
purport to exercise any such right, provided that at any time Vesper may
require Velocom to discipline and/or recall, on a permanent or temporary
basis, any Consultant and, as an immediate measure pending discussions with
Velocom and any recall, may require that a Consultant leave any premises
owned or occupied by Vesper if Vesper in its reasonable discretion believes
that the Consultant has committed any act or omission which would entitle
Vesper to dismiss such Consultant had he or she been employed by Vesper
(including the inability to adequately perform his or her duties) or if
Vesper, in its reasonable discretion, believes that such Consultant has
conducted himself or herself in a manner which is contrary to or otherwise
not in the best interests of Vesper. Vesper shall provide Velocom with all
reasonable assistance as is necessary to enable the disciplinary process of
Velocom to operate in respect of any Consultant.
2.13 COSTS TO DATE OF RECALL
Costs accrued to the date of recall shall be payable in accordance with
Section 3.1 and Costs accrued after such date shall be for the account of
Velocom except for any agreed upon portion of the Consultant's reasonable
de-mobilization costs assumed by Vesper.
2.14 SUBSTITUTE CONSULTANT
If any Consultant ceases to provide Services to Vesper prior to the
completion of the term provided for in the relevant RFS Order or if any
such Person is unable due to illness, accident or other incapacity to
perform his or her duties, or if Velocom dismisses or recalls such
Consultant in accordance with Sections 2.11 or 2.12, Velocom shall, if
requested by Vesper, at its sole cost and expense, provide a substitute for
such Person in accordance with the RFS procedures set out in Section 2.2.
2.15 INSURANCE
Vesper shall ensure that all Consultants are insured, to the extent
insurance is available at reasonable cost, in the same manner as its own
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employees in comparable positions against property damage and personal
injury arising while any Consultant is attending at the premises or other
facilities of Vesper pursuant to this Agreement.
2.16 SOFTWARE AND LICENSE COSTS
The Consultants provided hereunder shall bring and use, at no cost to
Vesper, the analytical tools, including, analytical software (and
appropriate hardware when required), needed to perform the Services.
However, to the extent that software owned by Parties other than Velocom,
including specialized software, is required by Vesper or any Consultant
(subject to Vesper's prior written approval) to provide the Services and
for which licenses need to be issued in the name of Vesper, the cost for
such licenses shall be paid directly by Vesper to the software supplier.
2.17 DELIVERABLES
The Deliverables developed by the Consultants for Vesper shall be
memorialized in written, graphic, electronic, magnetic or other tangible
form to allow Vesper to use the Deliverables after the departure of the
Consultants, such use to be subject to the rights of any Party other than
Velocom in any Deliverable or software which supports any Deliverable with
respect to which Vesper may need to acquire a license and Velocom
undertakes to cooperate with Vesper with respect to such acquisition
(including the acquisition of software pursuant to the foregoing
paragraph). The Deliverables delivered under this Agreement shall function
prior to, during, and after the calendar year 2000 without any
service-affecting problems.
2.18 THIRD PARTY SERVICES AND GOODS
In the event that Vesper believes that any specific technical assistance,
software or hardware should be provided by a Third party, Vesper may
request Velocom's assistance in engaging, and monitoring such Third party's
services or provision of goods. In particular, Velocom shall, on Vesper's
request, monitor the customization process of any third party software.
2.19 PROJECT REVIEW COMMITTEE
A project review committee (the "COMMITTEE") composed of two designees
from Velocom and two designees from Vesper shall be set up to review on a
monthly basis the resource needs of Vesper and any difficulties which may
arise under this Agreement. Meetings of the Committee may be held in person
or by conference call. Vesper shall ensure that Velocom is given through
the Committee or otherwise, on a timely basis, any information with respect
to the business of Vesper which may be relevant to or necessary for the
performance of Services by Velocom or the Consultants hereunder.
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3. COSTS
3.1 COSTS
Vesper shall pay to Velocom such amount as is equivalent to the reasonable
and documented costs agreed to in each RFS Order of providing the Services
and Consultants to Vesper plus overhead recovery costs (the "OVERHEAD
RECOVERY COSTS") of fifteen per cent (15%) of such costs (collectively, the
"COSTS"). Attached as Schedule D hereto is an estimate by the Parties of
the amount of the Costs to be incurred throughout the Term.
3.2 PAYMENT BY ▇▇▇▇▇▇
▇▇▇▇▇▇ may at its option, upon notification to Velocom, pay directly to the
Consultants or on behalf of the Consultants various local expenses (in
amounts not to exceed those which Velocom would otherwise reimburse) such
as accommodation, travel or per-diem, in which case reimbursement to
Velocom will not apply for such expenses paid directly by Vesper.
3.3 EXAMINATION OF COSTS BY ▇▇▇▇▇▇
▇▇▇▇▇▇ shall have the right at reasonable times on reasonable notice during
usual business hours, and at its sole cost and expense (except that if
discrepancies are found in any such audit that exceed 10% of the total
amount of Costs reimbursed during the period subject to such audit, all
costs and expenses of such audit shall be borne by Velocom), to audit,
examine and make copies and extracts from the books and records of Velocom
relating to all Costs for which reimbursement is sought under this
Agreement. Such right may be exercised by Vesper through any agent,
employee or independent auditor designated by Vesper. Such information
shall be treated in accordance with the provisions of Section 7.
3.4 PRIOR COSTS
The Parties acknowledge that Costs (the "PRIOR COSTS") were incurred by or
on behalf of Velocom for the benefit of Vesper for the period of the
Initial Term. Attached as Schedule E is an estimate of all such Prior
Costs incurred by or on behalf of Velocom on or prior to March 31, 2000.
Vesper shall have the opportunity to review and approve all such Prior
Costs. The Parties may, within thirty (30) days from the execution,
discuss such amounts and agree on the revised amount.
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4. TAXES
4.1 PAYMENTS FREE AND CLEAR OF TAXES
All amounts payable hereunder by Vesper to Velocom shall be paid by
Vesper free and clear of and without deduction for any and all present
or future taxes, levies, imposts, deductions, charges or withholdings,
and all liabilities with respect thereto, excluding taxes imposed on
Velocom's net income, assets or capital by the jurisdiction under the
laws of which it is organized or any political subdivision thereof (all
such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "TAXES").
4.2 TAX PAYMENTS BY VESPER
Should any Taxes be levied on Velocom by the Brazilian tax authorities,
payment for such Taxes shall be the responsibility of and be paid by
Vesper directly to the appropriate tax authority on behalf of Velocom
unless contested in good faith by Vesper, and these payments by Vesper
shall not reduce the amounts payable to Velocom pursuant to this
Agreement. Within thirty (30) days after the date of any payment of
Taxes, Vesper shall furnish to Velocom, at its address referred to in
Section 14, the original receipt of payment thereof or a certified copy
of such receipt evidencing payment thereof.
4.3 REIMBURSEMENT BY VESPER
In the event that Velocom is required by law to make such payments for
Taxes directly to the Brazilian tax authorities, Vesper shall, subject
to Brazilian law, reimburse Velocom for such payments within thirty
(30) days from the date of Velocom's invoice. Such reimbursement shall
not be reduced by any Taxes and shall not reduce the amounts otherwise
payable to Velocom pursuant to this Agreement.
4.4 STAMP DUTIES, DOCUMENTARY TAXES AND LEVIES
Vesper shall pay all stamp duties, documentary taxes, charges or
similar levies imposed by the Brazilian tax authorities or any state or
subdivision thereof that arise from any payment made hereunder or from
the execution, delivery or registration of, or otherwise with respect
to, this Agreement.
4.5 TAX STRUCTURE
The Parties shall jointly determine the most tax-efficient means of
accomplishing the objectives of this Agreement. In the event that the
Parties determine that a more tax efficient structure may be
implemented, the Parties shall negotiate in good faith to amend this
Agreement to implement such new structure as promptly as practicable.
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5. PAYMENT TERMS
5.1 INVOICES
Velocom shall submit to Vesper on a monthly basis invoices for the
Costs in U.S. dollars. Such invoices shall describe the Services
provided and Costs incurred with supporting documentation as reasonably
requested by Vesper to comply with accounting procedures and other
requirements of Vesper as well as the place and manner of payment.
5.2 INTEREST
Unless disputed by Vesper in good faith, all Costs payable under this
Agreement, if not paid within forty-five (45) Days of the date of the
invoice shall bear interest on the outstanding amount(s) from the
date of the invoice or their due date (whichever date is the latest)
until paid at a rate per annum, compounded annually, equal to LIBOR
plus two hundred (200) basis points.
5.3 CURRENCY
Unless otherwise agreed in writing between Velocom and Vesper and
except for Costs paid directly by Vesper in accordance with Section
3.2, all compensation and all amounts owing under this Agreement shall
be paid in full by Vesper in U.S. dollars to Velocom. All Costs
incurred in currencies other than U.S. dollars shall be converted into
U.S. dollars using the average of the appropriate Bank of Brazil
closing exchange rates for the month in which the Costs were incurred.
6. DELIVERABLES AND INTELLECTUAL PROPERTY
6.1 OWNERSHIP
Vesper shall own all right, title and interest in and to any
Deliverable prepared by any Consultant and furnished to Vesper in
connection with the provision of Services; provided that the foregoing
right, title and interest shall not include: (i) methods, techniques
and concepts and all related Intellectual Property of Velocom or any of
the Velocom Group Companies and (ii) other materials previously created
by Velocom or any Velocom Group Company (the "VELOCOM PROPRIETARY
RIGHTS"), all of which shall be owned by Velocom or the relevant
Velocom Group Company and shall be treated as confidential information
pursuant to the provisions of Section 7. Velocom hereby grants Vesper a
license to use such Velocom Proprietary Rights on a non-exclusive,
perpetual and royalty free basis for the purpose of carrying on the
Business. Vesper shall not have the right to assign this license to any
other Person other than its affiliates, in accordance with the
provisions hereof and subject to such affiliates being bound by the
same undertaking not to assign this right.
6.2 NO TRANSFER OF RIGHTS
No term or condition in this Agreement shall be construed as involving
software development or to be a transfer by Velocom, the Velocom Group
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Companies or Vesper of licenses, patents, trademarks or technology
which could give rise to royalty payments. Any software development
requested by Velocom or Vesper or any transfer of Intellectual Property
rights shall be dealt with in separate agreements.
6.3 PROVISION OF SIMILAR SERVICES BY VELOCOM
Other than for such Persons competing directly with the Business,
nothing in this Agreement shall prevent Velocom and/or any of the
Velocom Group Companies from performing for others the same or similar
Services as those provided hereunder, including providing the same or
similar conclusions and recommendations.
6.4 ENHANCEMENTS
Any processes, concepts, techniques, uses, designs, applications,
methods, improvements, enhancements and modifications directly based on
or directly created using the Velocom Proprietary Rights (the
"ENHANCEMENTS"), that are discovered or developed by or on behalf of
Vesper shall be the exclusive property of Vesper.
6.5 LICENSE TO USE DELIVERABLES AND ENHANCEMENTS
Vesper hereby grants each of BCI and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ (the
"SHAREHOLDERS"), a license to use the Deliverables and Enhancements on
a non-exclusive and royalty free basis as long as such Shareholder is a
shareholder (directly or indirectly) of Vesper; provided, however that
the use by a Shareholder of the Deliverables and Enhancements may
continue if such use began prior to such Shareholder ceasing to be a
shareholder (directly or indirectly) of Vesper. The Shareholders shall
not have the right to assign this license to any other Person other
than their affiliates, in accordance with the provisions hereof and
subject to such affiliates being bound by the same undertaking not to
assign this right. The Shareholders further agree that they (and their
affiliates) shall not use the Deliverables and Enhancements in
connection with a business that competes with the Business.
7. CONFIDENTIAL INFORMATION
7.1 CONFIDENTIALITY OBLIGATION
Each Party (the "RECEIVING PARTY") shall for two (2) years from the
date of receipt of Confidential Information from the disclosing Party,
retain in
Page 15
16
confidence all such Confidential Information disclosed pursuant to
activities carried on in providing the Services under this Agreement
and shall treat such Confidential Information with the same degree of
care as it employs for the protection of its own Confidential
Information (and in any event, with reasonable care).
7.2 USE OF CONFIDENTIAL INFORMATION
The Receiving Party shall not, nor shall it permit any of its
Representatives to, without the written consent of the other Party, use
any Confidential Information of the other for any purpose other than
the provision of Services hereunder, or disclose any Confidential
Information of the other to any third party, except to its
Representatives with a need to know for purposes of this Agreement or
for the conduct of each Party's business, including any financing to
the extent necessary to obtain such financing, and after such
Representatives have been directed by the Receiving Party to treat such
Confidential Information in accordance with the terms of this Section 7
and provided further that no Party shall use any such Confidential
Information to the detriment of each other.
7.3 FURTHER UNDERTAKINGS
Each Party also agrees to enter into such further undertakings of
confidentiality as may reasonably be required by the other Party.
7.4 NON-CONFIDENTIAL INFORMATION
Confidential Information shall not include any information that:
(a) is or comes into the public domain other than as a result of a
disclosure directly or indirectly by the Receiving Party in
breach of this Agreement;
(b) the Receiving Party can demonstrate was known to it prior to
the disclosure thereof by the disclosing Party;
(c) is or becomes generally available to such Receiving Party on a
non-confidential basis from a source other than the disclosing
Party, provided that such source is not known by such
Receiving Party to be bound by any confidentiality obligation
with respect to such information;
7.5 COMPELLED DISCLOSURE
This Section 7 shall not restrict the disclosure of any Confidential
Information by either Party as required by law, the rules or orders of
any recognized securities exchange, any court of competent
jurisdiction, any governmental or regulatory authority, including any
taxation authority or broadcasting or telecommunications or securities
regulatory authority, but only after written notice of such disclosure
requirement has been given, to the extent practicable, by such Party to
the disclosing Party, (it being understood and agreed that only one
such notice shall be required in respect of continuous disclosure
requirements).
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17
7.6 RETURN OF INFORMATION
Upon termination of this Agreement, each Party shall return all such
Confidential Information to the other Party unless such Confidential
Information is necessary for the conduct of the ongoing business of
either Party. Notwithstanding termination of this Agreement, the
confidentiality obligations of the Parties pursuant to this Section 7
shall continue for two (2) years after the disclosure of Confidential
Information.
8. LIABILITY
8.1 DEGREE of CARE
Velocom shall provide, and shall cause the Consultants to provide, all
Services with reasonable care and skill and such Services shall be of a
standard comparable to providers of similar types of services and
Velocom shall and shall cause the Consultants to use reasonable
commercial judgment and expertise provided that:
(a) Velocom, the Velocom Group Companies and the Consultants shall
not be liable on account of specific acts done or omitted to
be done by the Consultants, Velocom or the Velocom Group
Companies and their respective directors, officers,
shareholders, employees, agents or contractors in good faith
in accordance with or pursuant to the direction of Vesper; and
(b) none of Velocom, any of Velocom Group Companies or the
Consultants shall be liable to Vesper for any error of
judgment or for any Loss suffered by Vesper in connection with
the subject matter of this Agreement (howsoever any such Loss
may have occurred) unless such Loss arises from negligence,
bad faith, fraud, intentional misconduct or willful default in
the performance or non-performance by Velocom (or any Velocom
Group Company or the Consultants) of its obligations or duties
under or pursuant to the terms of this Agreement.
8.2 INDEMNIFICATION
Vesper shall indemnify and hold harmless Velocom and the Velocom Group
Companies and their respective directors, officers, shareholders,
employees and agents (each an "INDEMNIFIED PERSON") against any claims,
actions, proceedings, costs, charges, losses, damages, demands,
liabilities and expenses (collectively "LOSSES") which may be brought
by third parties against, suffered or incurred by any of such
Indemnified Persons arising from or related to the performance of
Velocom's, the Velocom Group Companies' or the Consultant's obligations
or duties under or pursuant to the terms of this Agreement (including,
without limitation, all reasonable legal and professional fees and
other expenses incurred by such Indemnified Person in the defense of
any claim, action or proceeding) except claims arising from negligence,
bad faith, fraud, intentional misconduct or willful default in the
performance or non-performance by Velocom of its obligations or duties
under or pursuant to the terms of this Agreement. Velocom shall be
entitled to defend itself against any such claim with the involvement
of
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18
Vesper but shall not settle the same without the prior written consent
of Vesper, such consent not to be unreasonably withheld or delayed.
8.3 DIRECT DAMAGES
Each Party shall be liable hereunder only for direct Losses incurred
by the other and in no event shall either Party be liable for any
consequential or indirect Losses for any breach of this Agreement.
9. ADDITIONAL RESPONSIBILITIES OF THE PARTIES
9.1 ADDITIONAL RESPONSIBILITIES OF VESPER
In addition to its obligations under this Agreement, Vesper shall at no
cost to Velocom:
(a) provide all secretarial, office, telecommunications, and other
business facilities reasonably required by the Consultants in Brazil
for the performance of the Services;
(b) use reasonable efforts to obtain, or assist Velocom from time to
time in obtaining, the visas and/or work permits and such other
necessary Brazilian government permissions required to enable the
Consultants and their families to enter and work in Brazil and allow
payment outside Brazil of the fees in connection thereto; and
(c) register this Agreement and all of its subsequent amendments with
the appropriate authorities (if legally required) and advise Velocom of
the date of registration. Vesper will seek and obtain (if necessary)
the approval of this Agreement by all relevant Brazilian authorities.
9.2 ADDITIONAL RESPONSIBILITIES OF VELOCOM
In addition to its obligations under this Agreement, Velocom shall:
(a) cause the Consultants to perform the duties required under
this Agreement in the manner set forth herein; and
(b) use reasonable efforts to obtain, or assist the Consultants
and Vesper from time to time in obtaining, the visas and/or
work permits and such other necessary Brazilian government
permissions required to enable the Consultants and their
families to enter and work in Brazil and allow payment outside
Brazil of the fees in connection thereto.
10. FORCE MAJEURE
10.1 NO DEFAULT OR LIABILITY
Neither Party shall be in default or liable for any Loss resulting from
delays in performance or from failure to perform or comply with terms
of this Agreement due to any event, which event is beyond its
reasonable control, was not caused by it and, which despite such
Party's reasonable efforts, ▇▇▇▇
▇▇▇▇ 18
19
result in a delay in the performance or compliance with any material
term of this Agreement ("FORCE MAJEURE"), including but not limited to:
(a) unusually severe weather, including lightning, storms,
earthquakes, landslides, floods, washouts, volcanic eruptions
and other acts of God;
(b) fires, explosion and destruction, whether accidentally or
intentionally caused and whether partial or complete, lack or
failure of transportation facilities, epidemic, quarantine,
labor disputes;
(c) war, declared or undeclared, revolution, civil commotion, acts
of public enemies, blockades, embargo, acts of civil
disobedience, acts of civil or military authorities, acts
stemming from governmental bodies, including courts and
regulatory bodies; and
(d) acts of government, including the imposition or exchange
controls or currency restrictions.
provided that the Party affected by such event has exercised reasonable
measures, if feasible, to mitigate such delays or Losses.
10.2 NOTICE
The Party affected by such event (the "AFFECTED PARTY") shall within
twenty (20) Business Days of the onset of Force Majeure notify the
other Party setting out in reasonable details the nature of such event
of Force Majeure and its effect upon the obligations of the Affected
Party, a detailed description, if applicable, of work-around plans,
alternative sources or any other means such Party will or proposes to
utilize to make up for any such period of delay and to prevent any
further delay. Thereupon, the obligations of the Affected Party shall
be suspended during, but no longer than the continuance of the event of
Force Majeure, and the time for performance of any obligation hereunder
shall be extended by the actual time of delay caused by such event;
provided, however, that unless an Affected Party shall notify the
other Party within the period (except if such period cannot be met
because of the event of Force Majeure) and in the manner stated in this
Section 10.2, such Party shall not be entitled to and shall not claim
an extension of time for that event of Force Majeure, and shall not by
reason of any delay arising from such event of Force Majeure, be
relieved in any way, or to any extent, from its obligations to proceed
with, execute and complete its performance of, and compliance with, the
terms of this Agreement.
11. TERM AND TERMINATION
11.1 TERM
This Agreement shall have a term (the "TERM") of 5 (five) years from
July 30, 1999, unless otherwise mutually agreed, and may thereafter be
extended by mutual agreement of the Parties.
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20
11.2 TERMINATION BY VELOCOM
Velocom may, at its option, terminate this Agreement by giving written
notice to Vesper in any of the following events, namely:
(a) a material breach by Vesper of any material obligations
contained in this Agreement which has not been cured within
thirty (30) Business Days after written notice thereof to
Vesper specifying the breach and requiring such remedy;
(b) the insolvency or bankruptcy of Vesper or the making of an
assignment for the benefit of creditors, or the appointment of
a trustee or receiver and manager or liquidator for Vesper or
for all or a substantial part of its property, or the
commencement of a bankruptcy, reorganization, arrangement,
insolvency or similar proceedings by or against Vesper under
the laws of any jurisdiction;
(c) Vesper ceases to conduct its business in the normal course;
(d) all or substantially all of Vesper's assets are sold, or
otherwise disposed of;
(e) the License is terminated for any reason; or
(f) Vesper has made or will make any payments, loans or gifts of
any money or anything of value, or has authorized, offered or
promised to do any of the foregoing, directly or indirectly to
or for the use or benefit of: (i) any official or employee of
the Government of Brazil or any department agency or
instrumentality thereof; (ii) any political party or official
or candidate thereof; or (iii) to any other Person either for
an advance or reimbursement knowing or having reason to
believe that any part of such payment, loan or gift will be
directly or indirectly given or paid by such other Person to
an individual mentioned in (i) or (ii).
11.3 TERMINATION BY ▇▇▇▇▇▇
▇▇▇▇▇▇ may at its option, terminate this Agreement, by giving written
notice to Velocom in any of the following events, namely:
(a) a material breach by Velocom of any material obligations
contained in this Agreement which has not been cured within
thirty (30) Business Days after written notice thereof by
Vesper specifying the breach and requiring such remedy;
(b) the insolvency or bankruptcy of Velocom or the making of an
assignment for the benefit of creditors, or the appointment of
a trustee or receiver and manager or liquidator for Velocom or
for all or a substantial part of its property, or the
commencement of a bankruptcy, reorganization, arrangement,
insolvency or similar proceedings by or against Velocom under
the laws of any jurisdiction;
(c) Velocom ceases to conduct its business in the normal course;
Page 20
21
(d) all or substantially all of Velocom's assets are sold, or
otherwise disposed of;
(e) the License is terminated for any reason;
(f) Velocom has made or will make any payments, loans or gifts of
any money or anything of value, or has authorized, offered or
promised to do any of the foregoing, directly or indirectly to
or for the use or benefit of: (i) any official or employee of
the Government of Brazil or any department agency or
instrumentality thereof; (ii) any political party or official
or candidate thereof; or (iii) to any other Person either for
an advance or reimbursement knowing or having reason to
believe that any part of such payment, loan or gift will be
directly or indirectly given or paid by such other Person to
an individual mentioned in (i) or (ii); or
(g) Velocom's consistent failure to provide Consultants to
Vesper in accordance with the terms and conditions of duly
executed RFS Orders due to circumstances and/or events that
are within Velocom's control.
11.4 COSTS INCURRED PRIOR TO TERMINATION
Notwithstanding any termination of this Agreement, Vesper's obligation
to pay the Costs incurred to the date of termination shall survive the
termination of this Agreement with respect to Vesper's obligations and
responsibilities hereunder incurred prior to the date of termination.
11.5 TERMINATION WITHOUT PREJUDICE TO OTHER RIGHTS
The termination of this Agreement regardless of its cause or its nature
shall be without prejudice to any other rights or remedies of either
Party without liability to the other Party (except as provided in this
Agreement) for any Loss occasioned thereby, and each Party shall remain
responsible for its obligations existing immediately prior to the
termination.
11.6 NO RELEASE OF LIABILITY
The termination of this Agreement for any cause shall not release
either Party hereto from any liability which at the time of termination
has already accrued to the other Party hereto or which thereafter may
accrue in respect of any act or omission prior to termination or from
any obligation which is expressly stated herein to survive termination.
12. ASSIGNMENT
No Party may assign its rights and obligations under this Agreement, in whole or
in part, except with the prior consent of the other Party, which consent shall
not be unreasonably withheld or delayed.
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22
13. WAIVER
13.1 FAILURE TO EXERCISE NOT TO OPERATE AS WAIVER
Except as otherwise expressly provided in this Agreement, no failure or
delay by any Party in exercising any right, power or privilege under
this Agreement shall operate as a waiver thereof, nor shall any single
or partial exercise by such Party of any right, power or privilege
preclude any further exercise thereof or the exercise of any other
right, power or privilege.
13.2 WAIVER IN WRITING
Except as otherwise expressly provided in this Agreement, no waiver of
any right hereunder or of any breach or failure to perform shall be
effective unless executed in writing.
13.3 NO DEEMED WAIVER
The waiver of any right hereunder or of any failure to perform or
breach hereof shall not constitute or be deemed as a waiver of any
other right hereunder or of any other failure to perform or other
breach hereof, whether of a similar or dissimilar nature thereto.
14. NOTICES
Any notice or communication which shall be given under this Agreement shall be
made in writing in the English language, and given by telecopier, with an
original sent by courier, addressed to a Party at its telecopier number and
address set forth below, or such other telecopier number and/or address for such
Party as shall have been communicated by it to the other Party in accordance
with this Section 14. Any notice or other communication shall be deemed to have
been received on the date of transmission but only if a confirmation of the
receipt by the recipient of the telecopier appears correctly at the end of the
sender's telecopy.
If to VELOCOM:
Velocom, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
If to VESPER:
VESPER Sao Paulo S.A.
Av. das Nacoes Unidas, no. 4,777, l2th floor,
Sao Paulo SP ▇▇▇▇▇-▇▇▇
▇▇▇▇▇▇
Telecopier No.: 55 11 30247504
Attention: Chief Executive Officer
Page 22
23
15. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of
Brazil without giving effect to any choice of conflict of law rules.
16. DISPUTE RESOLUTION
16.1 PROCEDURE
In the event of a dispute among Velocom and Vesper arising under or in
connection with this Agreement, including a dispute over whether there
has been a material breach to this Agreement, the following shall
apply:
(a) They shall use their good faith efforts to settle such
dispute. To this end, each Party may notify the other Party of
its desire to initiate the procedure contemplated by this
Section 16, whereupon the Parties shall forthwith convene to
attempt to resolve such disputes through amicable and good
faith discussions. Disputes which the Parties are unable to
resolve through such discussions within thirty (30) days
following receipt of the notice referred to in this Section
16.1(a), shall upon the request of either Party, be submitted
to a panel consisting of designees from the chief executive
officers of Velocom and Vesper. The designees shall consult
and negotiate with each other in good faith in an effort to
reach a just and equitable solution.
(b) If the designees do not reach a solution within a period of
thirty (30) days following the beginning of their
consultations and negotiations, any Party may treat the same
as an arbitrable dispute by giving notice to the other Party,
in which case the dispute shall be submitted to a final and
binding arbitration under the Rules of Conciliation and
Arbitration of the International Chamber of Commerce
excluding any such rules relating to the posting of security
for costs (the "RULES").
16.2 ARBITRATION
(a) The arbitral tribunal shall consist of three (3) arbitrators.
One arbitrator shall be appointed by each side and the third
shall be selected by the two party-appointed arbitrators or,
failing agreement, by the International Chamber of Commerce,
in accordance with the Rules.
(b) The arbitration shall be held in the English language. The
proceedings shall be conducted, and any arbitral award shall
be made, in the city of New York, New York, in the United
States. The Parties agree that the obligations, herein are
"commercial" and that the New York Convention on Recognition
and Enforcement of Foreign Arbitral Awards is applicable or,
if such convention has not then been
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24
ratified by Brazil, the Inter-American Convention on
International Commercial Arbitration shall also apply. The
prevailing Party shall be entitled to recover from the other
Party (as part of the arbitral award or order) its reasonable
attorneys' fees and other costs of arbitration.
(c) Any decision or award of the arbitral tribunal shall be final
and binding upon the Parties. The Parties hereby waive to the
extent permitted by law any rights to appeal or to review of
such award by any court or tribunal. The arbitral award may
be enforced against the Parties or their assets wherever they
may be found and that a judgment upon the arbitral award may
be entered in any court having jurisdiction thereof.
(d) To the extent that each Party has or hereafter may acquire
any immunity from jurisdiction of any court or from any legal
process (whether through service of notice, attachment prior
to judgment, attachment in aid of execution, execution or
otherwise) with respect to itself or its property, it hereby
irrevocably waives such immunity in respect of its
obligations under this Agreement.
17. ORAL EXPLANATION: AMENDMENTS
No oral explanation or oral information by any of the Parties shall alter the
meaning or interpretation of this Agreement. No amendment hereto shall be
effective or binding on any of the Parties unless reduced to writing with
specific reference to this Agreement, and executed by the respective duly
authorized representatives of each of such Parties.
18. NON-SOLICITATION
Vesper agrees not to enter into any employment or consulting agreement or
arrangement, directly or indirectly, written or verbal with any Consultant,
agent, employee or independent contractor of Velocom or any Velocom Group
Company who provides Services directly to Vesper hereunder for a period of
twelve (12) months following his or her completion of such Services, unless
authorized in advance by Velocom in writing which authorization shall not be
unreasonably withheld or delayed.
19. SEVERABILITY
The invalidity or unenforceability of any provision, in whole or in part, of
this Agreement shall not in any way affect the validity or enforceability of any
other parts or provisions thereof, provided, however, that the Parties hereto
shall use their reasonable efforts to achieve the purpose of the invalid or
unenforceable provision or part thereof by a new valid and enforceable
stipulation.
20. LANGUAGE
The English version of this Agreement is the only authentic version thereof
and it shall determine the construction, interpretation, application and
performance of this Agreement.
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25
21. RELATIONSHIP OF THE PARTIES
No Party has the power or authority to legally bind the other Party. Nothing
herein shall be construed as authorizing any Party to act as an agent or
representative of the other Parties and nothing herein shall be taken to
constitute or create a partnership, an agency or a joint venture among any of
the Parties.
22. RIGHTS AND REMEDIES
All rights and remedies provided for in this Agreement are in addition to, and
not exclusive of, any other rights or remedies otherwise available at law or in
equity.
23. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which when
so executed shall be deemed to be an original, but all of which taken together
shall constitute one and the same complete and executed agreement.
24. FURTHER ASSURANCES
Each of the Parties hereto shall cooperate with the other and execute and
deliver to the other such instruments and documents and take such other actions
as may reasonably be requested from time to time in order to carry out, evidence
and confirm their respective rights and the intended purpose of this Agreement.
25. CONSENTS
Vesper shall obtain at its own cost all licenses, permits or consents which may
be required by Vesper in order for Velocom to be free to provide or make
available the Services.
26. EXPENSES
Each Party shall bear its own costs and expenses incurred in connection with the
negotiation, preparation and execution of this Agreement.
27. THIRD PARTY BENEFICIARIES
It is the intention of the Parties to confer third-party beneficiary rights to
the Shareholders pursuant to Section 6.5 and to the Indemnified Persons pursuant
to Section 8.2.
IN WITNESS WHEREOF, the Parties have signed and delivered this Agreement on the
day and year set forth above.
VELOCOM INC. VESPER SAO PAULO S.A.
By: /s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
------------------------------- -------------------------------
Name: Name:
Title: Title:
Witness: Witness: /s/ [ILLEGIBLE]
-------------------------- --------------------------
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[GRAPHIC]
27
STATE OF COLORADO )
)
COUNTY OF ARAPAHOE )
NOTARIAL CERTIFICATE
I, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Notary in and for the State of Colorado, hereby
certify that the foregoing TECHNICAL SERVICES AGREEMENT was subscribed and
affirmed in my presence by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ in [his] capacity as the PRESIDENT
& CEO of VELOCOM INC., and that the said PRESIDENT & CEO is authorized to sign
on behalf of VELOCOM INC.
Dated in Arapahoe County, Colorado this 30th day of MAY, 2000.
My Commission expires: 11/10/2003
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Notary Public
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ OF AMERICA )
STATE OF COLORADO ) SS.
I, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Secretary of State of the State of Colorado, do hereby
certify that
▇▇▇▇▇ ▇ ▇▇▇▇▇▇,
whose name is subscribed to the certificate of the proof or acknowledgment the
annexed instrument and thereon written, was at the time of taking such proof or
acknowledgment a NOTARY PUBLIC duly commissioned, sworn and authorized by the
laws of the State of Colorado to take the same. And I do further certify that
said instrument is executed and acknowledged according to the laws of the State
of Colorado, and the signature and official seal of the aforementioned NOTARY
PUBLIC thereto affixed, are to the best of my knowledge and belief genuine. The
signature of the Notary has been compared with the signature on file in my
office.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the Great Seal of
the State of Colorado, at the city of Denver, this 30th Day of May, A.D., 2000.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
SECRETARY OF STATE
29
SCHEDULE "A"
--------------------------------------------------------------------------------
REQUEST FOR SERVICES
--------------------------------------------------------------------------------
1. DESCRIPTION OF EXPERTISE REQUIRED AND APPROXIMATE NUMBER OF CONSULTANTS
REQUESTED
-------------------------------------------------------------------
-------------------------------------------------------------------
-------------------------------------------------------------------
2. EXPECTED DURATION
-------------------------------------------------------------------
3. DATE OF COMMENCEMENT
-------------------------------------------------------------------
4. LOCATION
-------------------------------------------------------------------
5. CONTACT PERSON AT VESPER SAO PAULO S.A.
Name:
----------------------------------------------------
Address:
-------------------------------------------------
-------------------------------------------------
Telephone:
-----------------------------------------------
Fax:
-----------------------------------------------------
------------------------------------------
AUTHORIZED VESPER SAO PAULO S.A. SIGNATORY
DATE:
-------------------------------------
--------------------------------------------------------------------------------
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Schedule "B"
A. If the Consultant is an employee of Velocom or a Velocom Group Company,
the documented costs to be agreed to in an RFS Order shall be:
-Daily Rate;
-Per-diem;
-Lodging expenses;
-Travel expenses;
-Any other direct related expenses.
B. If the Consultant is employed by a third party, the documented costs to
be agreed to in an RFS Order shall be:
-Actual consulting fee charged by Consultant to Velocom;
-Per-diem;
-Lodging expenses at Vesper designated hotels;
-Travel expenses reimbursable under Velocom policy; and
-Any other direct related expenses.
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SCHEDULE "C"
--------------------------------------------------------------------------------
RFS ORDER
(PLEASE PREPARE ONE ORDER FOR EACH CONSULTANT)
--------------------------------------------------------------------------------
1. NAME OF CONSULTANT
------------------------------------------------------------------
2. DAILY RATE AND EXPENSE REIMBURSEMENT POLICY
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
3. DATE OF COMMENCEMENT OF SERVICES
------------------------------------------------------------------
4. DURATION OF SERVICES
------------------------------------------------------------------
5. LOCATION(S)
------------------------------------------------------------------
6. OTHER TERMS AND CONDITIONS OF RFS ORDER
------------------------------------------------------------------
----------------------------------------------
AUTHORIZED VESPER SAO PAULO S.A. SIGNATORY
DATE:
-----------------------------------------
----------------------------------------------
AUTHORIZED VELOCOM SIGNATORY
(ONLY SIGN ONCE VESPER SAO PAULO S.A. HAS SIGNED)
DATE:
-----------------------------------------
--------------------------------------------------------------------------------
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SCHEDULE "D"
ESTIMATE OF COSTS
Number of Duration Daily Rate
Departments Area of Expertise Expatriates in Days US$
-----------------------------------------------------------------------------------------------------
Financial Analyst 1 329 700
RF Engineer 2 276 800
Senior Manager 1 274 800
Development Legal 1 164 1,500
Mergers and Acquisition specialist 1 274 1,000
Operations Senior Manager 1 219 900
-----------------------------------------------------------------------------------------------------
Strategic Planning 1 438 1,100
Marketing 3 1,125 1,100
Datacomm Corporate Development 2 500 1,100
Operations Planning 3 750 800
Technology 2 500 800
Financial Analysis 1 250 700
-----------------------------------------------------------------------------------------------------
Network Engineering Fixed Wireless Access 1 75 800
-----------------------------------------------------------------------------------------------------
Marketing & Sales Broadband & Data 1 13 1,000
-----------------------------------------------------------------------------------------------------
ERP Implementation 1 -- 900
Info technology Cust. Care and Billing Implementation 1 30 900
Operations 1 60 900
Outsourcing 1 135 900
Network Management Center 1 90 900
Overall Systems Implementation 1 15 900
-----------------------------------------------------------------------------------------------------
Financial Planning 1 45 800
--------------------------------------------------------------------------
Finance Debt Financing 1 68 1,100
-----------------------------------------------------------------------------------------------------
TOTAL 29 5,628 5,171,734
-----------------------------------------------------------------------------------------------------
Schedule to Complete (days)
-------------------------------------------------------
Departments Area of Expertise 2000 2001 2002 2003 2004
--------------------------------------------------------------------------------------------------------------------------
Financial Analyst 99 66 66 33 33
RF Engineer 83 55 55 28 28
Senior Manager 82 55 55 27 27
Development Legal 49 33 33 16 16
Mergers and Acquisition specialist 82 55 55 27 27
Operations Senior Manager 66 44 44 22 22
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Strategic Planning 88 88 88 88 88
Marketing 225 225 225 225 225
Datacomm Corporate Development 100 100 100 100 100
Operations Planning 150 150 150 150 150
Technology 100 100 100 100 100
Financial Analysis 50 50 50 50 50
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Network Engineering Fixed Wireless Access 15 15 15 15 15
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Marketing & Sales Broadband & Data 13 -- -- -- --
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ERP Implementation -- -- -- -- --
Info technology Cust. Care and Billing Implementation 30 -- -- -- --
Operations 30 30 -- -- --
Outsourcing 45 45 45 -- --
Network Management Center 30 30 30 -- --
Overall Systems Implementation 15 -- -- -- --
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Financial Planning 15 15 15 -- --
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Finance Debt Financing 23 15 30 -- --
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TOTAL 1,388 1,170 1,155 881 881
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33
SCHEDULE "E"
PRIOR COSTS TO MARCH 31, 2000
VESPER S.P.
BILLING SUMMARY THROUGH MARCH 31, 2000
Details:
Invoice 0009 for month of May 1999 45,887.50
Invoice 00010 for month of June 1999 3,791.32
Invoice 00011 for month of July 1999 64,058.47
Invoice 00012 for month of August 1999 12,925.01
Invoice 00013 for month of September 1999 11,441.43
Invoice 00015 for month of October 1999 5,867.33
Invoice 00019 for month of November 1999 7,851.36
Invoice 00020 for month of December 1999 25,345.81
Invoice 00030 for month of Jan 2000* 18,961.83
Invoice 00030 for month of Feb 2000* 7,641.22
Invoice 00034 for month of March 2000* 52,207.48
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Total due to VeloCom Inc. 255,978.76
==========
*Invoices with support will be submitted within 30 days