EXHIBIT 4.1
MUTUAL RELEASE
This Mutual Release (this "Release"), dated as of March 26, 2003, is
entered into by and among TELESYSTEM INTERNATIONAL WIRELESS INC., a corporation
organized under the laws of Canada ("T"), TELESYSTEM INTERNATIONAL WIRELESS
(LATIN AMERICA) INC., a company organized under the laws of Barbados ("SELLER"),
TPSA DO BRASIL LTDA., a company organized under the laws of Brazil ("T DO
BRASIL"), each of the persons that are related to T whose names are set forth on
Schedule 1 under the heading "T Releasing Parties" ("T RELEASING PARTIES", and
together with T, Seller and T do Brasil, the "T PARTIES"), OPPORTUNITY FUND, a
company organized under the laws of The Cayman Islands ("O"), HIGHLAKE
INTERNATIONAL BUSINESS COMPANY LTD., a corporation organized under the laws of
Barbados ("BUYER"), CVC/OPPORTUNITY EQUITY PARTNERS L.P., a limited partnership
organized under the laws of The Cayman Islands ("CVC-O"), and each of the
persons that are related to O whose names are set forth on Schedule 2 under the
heading "O Releasing Parties" ("O RELEASING PARTIES", and together with O, CVC-O
and Buyer, the "O PARTIES"). Capitalized terms used but not defined in this
Release shall have the respective meanings assigned to them in Annex A attached
hereto.
Pursuant to the terms of the Stock Purchase Agreement dated the date hereof
by and among T, O and certain of their respective affiliates (the "STOCK
PURCHASE AGREEMENT"), concurrently with the execution hereof T is, through
Seller, selling its indirect equity interest (the "T-BIRD INTEREST") in Telpart
Participacoes S.A., a Brazilian company ("T-BIRD") to Buyer, a company owned by
O and CVC-O. As a condition to the completion of such sale, the parties hereto
(each individually a "PARTY" and collectively, the "PARTIES") agree as follows:
1. RELEASE BY T PARTIES
1.1 Each of the T Parties, on behalf of itself and its respective controlled
affiliates, hereby voluntarily and knowingly acquits, remises, discharges
and forever releases all of the persons listed on Schedule 2 under the
heading "O Released Parties" (the "O RELEASED PARTIES") from any and all
sums of money, actions, awards, causes of action, suits, judgments,
damages, demands, debts, liabilities, obligations, representations,
contracts, accounts, agreements, covenants, promises, fees, rights,
setoffs, torts, wrongs, losses, expenses, claims and counterclaims of any
and all kind whatsoever (including without limitation court fees and
attorneys' fees and expenses), whether known or unknown, suspected or
unsuspected, which have in the past existed, or which as of the date of
this Release do exist or that arise in the future from events or
occurrences taken place prior to or as of the date hereof (collectively,
"CLAIMS"), relating to or arising out of:
(a) the direct or indirect ownership by any of the T Parties of the
T-Bird Interest or any other interest of any nature in T-Bird and its
subsidiaries and affiliates, including without limitation an interest
arising out of or related to any agreement, indenture, deed, option,
right of first refusal or right of first offer for the
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acquisition of an interest or exercise of any right in T-Bird or any
of its subsidiaries or affiliates;
(b) the direct or indirect ownership by any of the O Parties of any
interest of any nature in T-Bird and its subsidiaries and affiliates
including without limitation an interest arising out of or related to
any agreement, indenture, deed, option, or right of first refusal or
right of first offer for the acquisition of an interest or exercise of
any right in T-Bird or any of its subsidiaries or affiliates;
(c) any matters, or actions or the not taking of actions, relating to
T-Bird and its subsidiaries and controlled affiliates;
(d) the status of any T Party or any O Party as a director, officer,
employee, agent, adviser or representative of T-Bird or any of its
subsidiaries or affiliates; or
(e) any existing, proposed or alleged shareholders agreement, letter
of intent, memorandum of understanding or other agreement (whether
written or oral) entered into by, or negotiated between, a T Party and
an O Party relating directly or indirectly to T-Bird or the T- Bird
Interest;
but excluding Claims (i) relating to or arising out of any breaches by an O
Party of, or misrepresentations of an O Party in, any of the provisions of
the Stock Purchase Agreement, the Ancillary Agreements, and the deliveries
by the O Parties pursuant thereto, (ii) relating to or arising out of any
breaches by an O Party of, or misrepresentations of an O Party in, any of
the provisions of that certain Buy-Sell Procedures Agreement dated as of
September 27, 2001 by and among the affiliates of T and O named therein,
including all of the schedules and attachments thereto and documents
executed in connection therewith (collectively, the "BUY-SELL AGREEMENTS")
and (iii) relating to or arising out of any breaches by an O Party of the
provisions of this Release (such claims, excluding such exclusions,
collectively, the "T CLAIMS").
1.2 Each of the T Parties, on behalf of itself and its respective controlled
affiliates, further agrees never to commence, aid, cause or authorize to be
commenced (if such authority is required) against any of the O Released
Parties or against a third party any action or other proceeding, whether
legal or equitable, judicial or administrative, or civil or criminal in
nature, based upon, arising out of or related to any of the T Claims or
relating directly or indirectly to T-Bird or the T-Bird Interest; provided,
however, that (1) in the event that a T Party is a defendant in any such
action or proceeding commenced by a third party, it shall have the right to
defend itself, including without limitation by bringing any counter-claim
in such action or proceeding against parties other than any O Released
Party and, (2) that this subsection will not prevent any T Party from
acting as a witness in any judicial or administrative proceeding if and to
the extent required by applicable law or undertaken at the request of a
Governmental Entity.
1.3 T represents and warrants to the O Parties that no T Party has assigned or
otherwise transferred any T Claim to any person or entity that is not
itself bound by this Release, and each T Party covenants not to make any
such assignment or transfer.
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1.4 The T Parties covenant to the O Parties that they will instruct each of
their counsel and advisors to comply with the terms of this Release and not
to take any actions in respect of the T Claims that are inconsistent in any
respect with this Release.
2. RELEASE BY O PARTIES
2.1 Each of the O Parties, on behalf of itself and its respective controlled
affiliates, hereby voluntarily and knowingly acquits, remises, discharges
and forever releases all of the persons listed on Schedule 1 under the
heading "T RELEASED PARTIES" (the "T Released Parties") from any and all
Claims relating to or arising out of:
(a) the direct or indirect ownership by any of the T Parties of the
T-Bird Interest or any other interest of any nature in T-Bird and its
subsidiaries and affiliates, including without limitation an interest
arising out of or related to any agreement, indenture, deed, option,
right of first refusal or right of first offer for the acquisition of
an interest or exercise of any right in T-Bird or any of its
subsidiaries or affiliates;
(b) the direct or indirect ownership by any of the O Parties of any
interest of any nature in T-Bird and its subsidiaries and affiliates
including without limitation an interest arising out of or related to
any agreement, indenture, deed, option, right of first refusal or
right of first offer for the acquisition of an interest or exercise of
any right in T-Bird or any of its subsidiaries or affiliates;
(c) any matters, or actions or the not taking of actions, relating to
T-Bird and its subsidiaries and controlled affiliates;
(d) the status of any T Party or any O Party as a director, officer,
employee, agent, adviser or representative of T-Bird or any of its
subsidiaries or affiliates; or
(e) any existing, proposed or alleged shareholders agreement, letter
of intent, memorandum of understanding or other agreement (whether
written or oral) entered into by, or negotiated between, a T Party and
an O Party relating directly or indirectly to T-Bird or the T- Bird
Interest;
but excluding Claims (i) relating to or arising out of any breaches by a T
Party of, or misrepresentations of a T Party in, any of the provisions of
the Stock Purchase Agreement, the Ancillary Agreements and the deliveries
by the T Parties pursuant thereto, (ii) relating to or arising out of any
breaches by a T Party of, or misrepresentations of a T Party in, any of the
provisions of the Buy-Sell Agreements and (iii) relating to or arising out
of any breaches by a T Party of the provisions of this Release (such
claims, excluding such exclusions, collectively, the "O CLAIMS").
2.2 Each of the O Parties, on behalf of itself and its respective controlled
affiliates, further agrees never to commence, aid, cause or authorize to be
commenced (if such authority is required) against any of the T Released
Parties any action or other proceeding, whether legal or equitable,
judicial or administrative, or civil or criminal in nature, based upon,
arising out of or related to any of the O Claims; provided that this
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will not prevent any O Party from acting as a witness in any judicial or
administrative proceeding if and to the extent required by applicable law
or undertaken at the request of a Governmental Entity.
2.3 O represents and warrants to the T Parties that no O Party has assigned or
otherwise transferred any O Claim to any person or entity that is not
itself bound by this Release, and each O Party covenants not to make any
such assignment or transfer.
2.4 The O Parties covenant to the T Parties that they will instruct each of
their counsel and advisors to comply with the terms of this Release and not
to take any actions in respect of the O Claims that are inconsistent in any
respect with this Release.
3. DISMISSAL OF PENDING LITIGATION
3.1 Schedule 3 hereto lists all litigation and other judicial or administrative
proceedings known to T and O to be pending against a T Party or an O Party
arising out of or related to the T-Bird Interest or relations between the T
Parties and the O Parties ("PENDING CASES"). T and O agree to instruct
their respective counsel to file or submit, as soon as reasonably
practicable, those executed joint stipulations relating to the dismissal of
the Pending Cases attached hereto (the "JOINT STIPULATIONS") in the
relevant courts or administrative agencies where each of the Pending Cases
is pending. O hereby irrevocably instructs T, and T agrees, to instruct
counsel for T do Brasil to file all Joint Stipulations that it has executed
in all Pending Cases where it is a party; provided that O shall be
responsible for causing T do Brasil to prosecute all such Joint
Stipulations after their initial filing. If a Joint Stipulation is not
filed by a T Party or an O Party with respect to a particular proceeding
within 30 days after the date hereof, the opposing Party in such proceeding
may, on one business day's notice to the other Party in such proceeding,
file a copy of this Release in such proceeding in lieu of such Joint
Stipulation (together with a duly prepared and sworn Portuguese translation
hereof, if required by applicable law). T and O agree to use their
reasonable best efforts to cause the relevant court having jurisdiction
over each Pending Case to homologate or otherwise approve, by a final order
not subject to further appeal, the dismissal of such Pending Case (a "FINAL
DISMISSAL") as soon as reasonably practicable after the date the Joint
Stipulation relating to such Pending Case is filed.
3.2 During any period of time after a Joint Stipulation as to a particular
Pending Case has been filed (which term shall be deemed for purposes of
this subsection 3.2 and subsection 3.3 to include the filing of a copy of
this Release in lieu of a Joint Stipulation as permitted by subsection 3.1)
but before the Final Dismissal relating to such Pending Case is entered,
the T Parties and O Parties that are party to such Pending Case shall, to
the maximum extent permitted by applicable law, not prosecute such Pending
Case in a manner that is, or take positions in such Pending Case that are,
adverse to the opposing T Party or O Party (as the case may be), or that
would reasonably be expected to create liability on the part of the
opposing T Party or O Party. With respect to any Pending Case that is an
administrative proceeding, the T Parties and O Parties that are party to
such proceeding shall, to the maximum extent permitted by applicable law,
not prosecute such proceeding in a manner that is, or take positions in
such proceeding that are, adverse
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to the opposing T Party or O Party (as the case may be), or that would
reasonably be expected to create liability on the part of the opposing T
Party or O Party. Nothing in this Section 3.2 shall preclude any T Party or
any O Party from prosecuting or defending any Pending Case in any manner it
shall deem appropriate in respect of any party to such Pending Case that is
not an opposing T Party or O Party as the case may be.
3.3 If (a) a Final Dismissal relating to a particular Pending Case is not
entered by the relevant court within 365 days after the date the related
Joint Stipulation is filed (or, if applicable, the Release is filed in lieu
of the related Joint Stipulation as contemplated by subsection 3.1), and
(b) any T Party or O Party that is a party to such Pending Case (a
"COMPLAINING PARTY") reasonably believes that an action or omission by an
opposing T Party or O Party (as the case may be) is primarily responsible
for the Final Dismissal not being entered, then such Complaining Party may,
in its sole discretion, commence an Arbitration (as defined in Section 5.2
hereof) to determine the merits of the allocation of responsibility for the
Final Dismissal not being entered. During (x) the period while the
Arbitration proceeding is pending, and (y) from and after the time (if any)
that the Arbitrators (as defined in subsection 5.2 hereof) find in favor of
the Complaining Party with respect to such Pending Case, this Release shall
not be raised as a defense by the opposing T Party or O Party, or otherwise
have any effect, in such Pending Case. Notwithstanding the foregoing,
(i) if a Final Dismissal is entered after the Arbitration has been
commenced but before it is concluded, this Release shall once again be
deemed to be in full force and effect, and such Pending Case shall
forthwith be dismissed,
(ii) No O Party may commence an Arbitration under this subsection in
respect of any actions or inactions taken or omitted to be taken by T do
Brasil after completion of the initial filing of the Joint Stipulations
pursuant to subsection 3.1,
(iii) if the Arbitrators find against the Complaining Party, the
Complaining Party shall be responsible for any resulting compensatory
damages that may be awarded by the Arbitrators to the opposing T Party or O
Party (as the case may be), and this Release shall be deemed to be in full
force and effect from and after the date of the Arbitrators' decision, and
(iv) if the Arbitrators find in favor of the Complaining Party, then in
addition to the relief prescribed in clause (y) of this subsection, the
opposing T Party or O Party (as the case may be) shall be responsible for
any resulting compensatory damages that may be awarded by the Arbitrators
to the Complaining Party.
3.4 Each T Party and O Party in a Pending Case shall pay its own costs and
expenses (including without limitation attorney's fees) incurred in
connection with its participation in such Pending Case. To the maximum
extent permitted by applicable law, no T Party or O Party in a Pending Case
shall seek or claim the benefit of any allocation of costs, sanction, cost
order or other award of attorneys' fees, costs or expenses that may have
been, or may be, made by a court in a Pending Case, whether consequent upon
a Final Dismissal or otherwise, and whether upon the authority of statute
or by applicable law or
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practice, that would result in an allocation of fees, costs and expenses
different than that stated in the first sentence of this subsection 3.4
(except, in each case, to the extent a payment in respect thereof has
actually been made prior to the date hereof). Each of T and O will instruct
its respective counsel to waive any independent entitlement that such
counsel may have to receipt of an award for fees, costs or expenses from
the desisting party in any Pending Case. Notwithstanding the foregoing, if
a court or administrative agency in a Pending Case issues a binding and
unwaivable order (a) requiring a different allocation of fees, costs or
expenses than that stated in the first sentence of this subsection, or (b)
allocating purely administrative court costs, then the T Parties and O
Parties in such Pending Case shall be bound by such order. Nothing in this
Section 3.4 shall preclude any T Party or any O Party from seeking an award
or allocation of fees, costs or expenses in any Pending Case in any manner
it shall deem appropriate in respect of any party to such Pending Case that
is not an opposing T Released Party or O Released Party. Except as
otherwise provided in Schedule 3.5 hereto, if, pursuant to an order of a
court or administrative agency, any Party receives after the date hereof a
reimbursement of legal fees incurred or paid by T do Brasil, the Parties
agree to remit such reimbursement to (x) T, if attributable to any period
prior to the date hereof or (y) O, if attributable to any period after the
date hereof. For the avoidance of doubt, T shall be responsible for any
pre-Closing legal fees incurred by T do Brasil.
3.5 The Parties agree that the provisions of this Section 3 in respect of
Pending Cases (and judgments) in the courts of the Cayman Islands shall be
implemented in accordance with the provisions of Schedule 3.5 hereto.
4. GOVERNING LAW; DISPUTE RESOLUTION
4.1 This Release shall be governed by and construed in accordance with the laws
of the State of New York, except that (a) each Joint Stipulation shall be
deemed to be governed by the law of the relevant court to which it shall be
presented, and (b) the enforcement and interpretation of Schedule 3.5
hereto shall be governed by the laws of the Cayman Islands. Any dispute or
disagreement regarding the interpretation, applicability or binding effect
of this Release shall be subject to the exclusive dispute resolution
procedures set forth in Schedule 4.1 hereto.
5. MISCELLANEOUS
5.1 Notwithstanding any of the other provisions of this Release, no provision
of this Release shall be construed to obligate any T Party or O Party to
take any action, or omit to take any action, which would be unlawful in any
applicable jurisdiction. If a Party determines that any such action or
omission would be unlawful in an applicable jurisdiction, it will promptly
notify the other Parties, the Parties shall cooperate in good faith to
implement alternative courses of action in order to reflect as nearly as
possible the original intentions of the Parties in accordance with
applicable law, and the provisions of this Release shall remain in full
force and effect to the maximum extent possible.
5.2 (A) Notwithstanding anything to the contrary contained in this Release, the
Parties agree that (1) the terms and provisions hereof shall be deemed to
be null and void
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and have no force or effect as against all Parties if an Unwind Event (as
defined below) occurs, and (2) certain specified Unwind Events shall have
the effects set forth in subsection 5.2(D). Any Party who reasonably
believes an Unwind Event may have occurred or will occur once a pending
legal action or proceeding becomes final, and who shall be adversely
affected by the relevant Unwind Event, may in its sole discretion give
written notice (an "UNWIND NOTICE") to the other Parties of its belief
(which notice shall describe in reasonable detail the basis for such
belief), which Unwind Notice may be revoked by the giving Party at any
time. An Unwind Event shall not be deemed to have occurred unless a Party
has given an Unwind Notice with respect thereto. If otherwise permitted
under this Release, a Party may deliver an Unwind Notice to the other
Parties notwithstanding the fact that another Party has previously
delivered an Unwind Notice, and notwithstanding the fact that another Party
has revoked a previously delivered Unwind Notice. Each Party receiving an
Unwind Notice shall have the opportunity, at its own expense, to
participate fully in any judicial or other proceeding that is described in
such notice.
(B) Whether or not a Party has given an Unwind Notice, upon becoming aware
of events and circumstances that may constitute an Unwind Event, each Party
shall:
(u) promptly notify the O Notice Party (as defined in subsection 5.7)
or the T Notice Party (as defined in subsection 5.7), as applicable, in
writing of the existence of such proceeding;
(v) participate in any judicial or other proceeding which may give
rise to an Unwind Event to the extent necessary to comply with its
obligations under this subsection (B);
(w) actively oppose in good faith, both in the court of original
jurisdiction and at each available appellate level and administrative
agency, any efforts by a third party (including, without limitation, any
Governmental Entity) to establish that an Unwind Event has occurred or
should occur, or to cause an Unwind Event to occur;
(x) use commercially reasonable efforts to prevent the occurrence of
such Unwind Event and/or to overturn or nullify such Unwind Event;
(y) not consent to or confess judgment in any such proceeding without
the prior written consent, as applicable, of the O Notice Party (if a T
Party gives or would be entitled to give the Unwind Notice) or the T Notice
Party (if an O Party gives or would be entitled to give the Unwind Notice);
and
(z) use commercially reasonable efforts to obtain a stay or other
suspension of any event that would constitute an Unwind Event during any
period when such proceeding is under appellate, judicial or administrative
review.
For the avoidance of doubt, the above obligations of the Parties shall
remain in full force and effect even if an Interim Decision (as defined
below) has permitted such Party to treat this Release as null and void.
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(C) As used herein, the term "UNWIND EVENT" means (subject to Section 5.8)
any final and binding court or regulatory order, injunction, writ,
judgment, decree, decision or ruling, or any law, statute, decree, rule,
regulation, ordinance or administrative interpretation (collectively,
"LEGAL ACTION"), that
(a) unwinds, avoids or rescinds the indirect sale from Seller to Buyer
of the T-Bird Interest that is the subject of the Stock Purchase Agreement
(including without limitation pursuant to any applicable fraudulent
transfer or similar statutes),
(b) results in any of the O Parties repaying, refunding, returning or
restoring the value paid to Seller for the indirect purchase of the T-Bird
Interest (including without limitation pursuant to any applicable
fraudulent transfer or similar statutes),
(c) results in any of the T Parties repaying, refunding, returning or
restoring the purchase price received by Seller for the indirect sale of
the T Bird Interest (the "PURCHASE PRICE") to any O Party (including
without limitation pursuant to any applicable fraudulent transfer or
similar statutes),
(d) results in any of the following:
(1) Any of the O Parties being required to (x) make an additional
payment equal to 10% or more of the Purchase Price, or (y) transfer,
assign or otherwise convey 10% or more of the shares comprising the
T-Bird Interest (collectively, a "PARTIAL O RETURN"), in either case
to a T Party or a third party in order to retain direct or indirect
ownership of the T-Bird Interest (including without limitation
pursuant to any applicable fraudulent transfer or similar statutes),
or
(2) Any of the T Parties being required to (x) repay, refund,
return or restore an amount equal to 10% or more of the Purchase Price
(a "PARTIAL T RETURN") to an O Party in order to prevent a Legal
Action described in clause (a) above from occurring, or
(e) results in the O Party or O Parties that then beneficially own the
T Bird Interest (1) no longer having the right to (A) freely exercise any
voting rights with respect to the T-Bird Interest (including without
limitation pursuant to the Usufruct), (B) sell, transfer or otherwise
dispose of, directly or indirectly, in any manner, all or a significant
portion of the T-Bird Interest, or (C) receive any dividends or other
distributions on or in respect of all or any portion of the T-Bird Interest
(including without limitation pursuant to the Usufruct), or (2) having one
or more of its rights set forth in clause (e)(1) materially impaired by
reason of or as a result of a contractual right granted by a T Party to a
third party (a "T CONTRACTUAL GRANT"), it being understood that any such
result caused by (x) the exercise of third party veto rights arising out of
a T Contractual Grant with respect to any action taken or to be taken by
the board of directors or shareholders of T-Bird or (y) the exercise of
tag-along, drag-along, right of first offer, right of first refusal or
similar rights with respect to the T-Bird Interest arising out of a T
Contractual Grant
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shall, in each case, be deemed to be a "material impairment" for purposes
of this clause (e)(2).
For avoidance of doubt, each Party hereby agrees and acknowledges that any Legal
Action resulting in an effect described in any of clauses (a) through (e) above
relating to or arising out of any of the agreements set forth on Schedule 3(n)
to the Stock Purchase Agreement may form the basis of an Unwind Event
notwithstanding that it is so listed on Schedule 3(n).
Notwithstanding the foregoing, the determination of whether or not an Unwind
Event has occurred, and if so the consequences thereof, shall be subject to each
of the following limitations and conditions:
(i) Notwithstanding the giving of an Unwind Notice, no Party shall
take any action that would be inconsistent with this Release, and this Release
shall remain in full force and effect, until the Unwind Event referred to
therein actually occurs; provided, however, that if the Parties, after using
commercially reasonable efforts, cannot obtain a stay, suspension or reversal of
the relevant effect described in clauses (a) through (e) above that is still
subject to judicial or administrative appeal (an "INTERIM DECISION") within 180
days of the later of the giving of the Unwind Notice relating to such Interim
Decision and the effective date of such Interim Decision, then (1) an adversely
affected Party may, in its sole discretion, commence a legal or administrative
proceeding against another Party hereto at any time when such Interim Decision,
or the relevant effect thereof, is not stayed, suspended or reversed, and (2) if
such a legal or administrative proceeding is so commenced, the terms and
provisions of this Release shall be deemed to be null and void and have no force
or effect as against all Parties until such time (if any) that a final and
nonappealable judgment or order is issued overturning such Interim Decision or
the relevant effect thereof. If after the commencement of any such legal or
administrative proceeding, but before it is concluded, the Interim Decision, or
relevant effect thereof, is stayed, suspended or reversed, any Party shall be
free to introduce such fact as evidence or legal argument in such legal or
administrative proceeding. For greater certainty, the Parties agree that the
remedy set forth in subsection 5.2(D) shall be available, in accordance with its
terms, only upon a Legal Action, and not an Interim Decision. For the avoidance
of doubt, the Parties agree that in enforcing their rights under this subsection
(i) they will consider in good faith the intent of the Parties that this Release
remain in full force and effect unless and until a Legal Action that constitutes
an Unwind Event occurs and they will not seek to void this Release under this
subsection (i) by taking actions (including filing of lawsuits) that are
frivolous in connection with the exercise of rights under this subsection (i);
(ii) A Legal Action taken by a Governmental Entity excluded from the
definition of Governmental Entity in any separate writing between Seller and
Buyer, in respect of the transactions contemplated hereby or by the Stock
Purchase Agreement, shall not constitute an Unwind Event;
(iii) No Legal Action shall constitute an Unwind Event if arbitrators
appointed under the dispute resolution procedures attached as Schedule 4.1
hereto ("ARBITRATORS," and a proceeding applying such procedures in connection
with this Release an "ARBITRATION") determine pursuant to the provisions thereof
that the primary cause of such event is a lawsuit or proceeding initiated and
maintained by, or other action taken (other than solely the
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consummation of the transactions contemplated by the Stock Purchase Agreement),
or not taken by, the Party that has given an Unwind Notice, a controlled
affiliate of such Party or any other person or entity receiving material
compensation from such Party in exchange for initiating and maintaining such
lawsuit or proceeding or taking or not taking such action, unless the initiation
and maintenance of such lawsuit or proceeding, or the taking or not taking of
such action, by the Party that has given the Unwind Notice, its controlled
affiliate or such other person was undertaken at the express direction (not
solicited or acquiesced in by the Party giving the Unwind Notice, its controlled
affiliate or such other person) of a Governmental Entity (excluding a
Governmental Entity referred to in clause (ii) of this subsection (C));
(iv) A change in law, statute, decree, rule, regulation or ordinance,
or in the interpretation thereof, after the date of this Release shall not
constitute an Unwind Event or provide the basis therefor;
(v) No event shall constitute an Unwind Event if it is the result of a
Legal Action that is applied generally to the assets or business (including the
management of investment funds) of a Party, as opposed to, in particular, the
transactions contemplated hereby or the Stock Purchase Agreement, the rights
(direct or indirect) of ownership of the T-Bird Interest, or retention of the
Purchase Price;
(vi) No event shall constitute an Unwind Event if the Unwind Notice
relating thereto is not given within four years after the date of this Release;
(vii) Any Party may cure an Unwind Event described in clause (d) of
this subsection 5.2(C) by making, or causing to be made, (1) repayment of any
moneys constituting a Partial O Return or a Partial T Return, as the case may
be, to the Party or Parties who made the payment thereof (or by payment thereof
to the third party to whom a payment is ordered to be made) within the time
period allowed therefor (or, if a Party has already been required to make such
payment, within five business days after such Party has made the payment in
compliance with the provisions of this subsection 5.2 and notified the other
Parties thereof pursuant to an Unwind Notice), or (2) the complete return to the
O Party or O Parties, as applicable, of those shares comprising the T Bird
Interest that were required to be transferred, assigned or conveyed within five
business days of such transfer, assignment or conveyance;
(viii) if, after receiving an Unwind Notice, the T Notice Party gives
written notice to the O Notice Party that it reasonably believes that the O
Party who beneficially owns the T Bird Interest can eliminate the effects of an
Unwind Event by transferring, directly or indirectly, the T Bird Interest to
another O Party, and providing reasonable detail as to the basis for its belief
in such notice (a "T CLAUSE VIII REQUEST"), then the O Parties agree to use
their commercially reasonable efforts to make such transfer provided that such
transfer does not (1) create or increase a financial, tax or other liability of
an O Party (as to which the O Parties are not made whole on a concurrent basis
by a T Party), (2) adversely affect the tax treatment of, or benefits associated
with, the ownership of the T-Bird Interest by an O Party, (3) breach any
contractual obligation of any O Party or trigger any rights of a third party
that could adversely affect an O Party, (4) violate any applicable law, rule or
regulation, (5) in the reasonable good-faith judgment of the O Parties, have a
possibility of exposing an O Party to liability or jeopardizing an O Party's
position in any legal or administrative proceeding (other than an
-10-
Arbitration), or (6) require the approval of any Governmental Entity (including,
without limitation, ▇▇▇▇, ANATEL or CVM) except those which are ministerial in
nature; provided that if the O Parties rely on any of the clauses (1) through
(6) of this clause (viii) to deny the request of a T Party set forth in a T
Clause VIII Request, the O Notice Party shall give written notice of such denial
to the T Notice Party within 20 business days of receipt of the T Clause VIII
Request and shall cite the clause[s] relied on and provide reasonable detail as
to the grounds therefor; and
(ix) an event described in clause (d) of this subsection shall not be
an Unwind Event unless the Party giving an Unwind Notice with respect thereto
represents and warrants to the other Parties that such Party has not received or
will not receive as a result of a settlement or consensual agreement any
additional tangible or financial benefit of material value from a person other
than a T Party (or any creditor of a T Party, in its capacity as a creditor),
for the Partial O Return or Partial T Return that it has made or will make
(except for any additional shares of T-Bird which such Party may be required to
acquire as a result of the exercise by a third party of a right of first offer,
right of first refusal or other similar right possessed by such party as a
result of a T Contractual Grant). If such Party cannot make such representation
and warranty, then such Party shall indicate to the other Parties hereto the
nature of such additional consideration, and the amount thereof, so that the
Parties may determine the portion of the Partial O Return or the Partial T
Return, as the case may be, that should qualify for consideration under
clause (d).
(D) The Parties agree that if
(a) none of the conditions or limitations to the determination of whether
or not an Unwind Event has occurred set forth in subsection
5.2(C)(i)-(ix) apply; and
(b) (1) with respect to an Unwind Event under subsection 5.2(C)(e), the
consequence of such Unwind Event has resulted in a significant
impairment of the economic value of the T-Bird Interest to Buyer or an
O Party or (2) an Unwind Event under subsection 5.2(C)(d) occurs,
then, at the election of the adversely affected Party exercised within 20
business days of the final decision or order in the Legal Action giving rise to
such Unwind Event (or, if the application of this subsection 5.2(D) is being
contested in an Arbitration in accordance with the terms hereof and such
application is upheld, within 20 business days of the final decision and award
of the Arbitrators), the Parties shall (in the case of the T Parties) return, or
caused to be returned, to the O Parties the full amount of the Purchase Price
paid to Seller for the indirect purchase of the T-Bird Interest (plus (x)
interest thereon at the rate of 10% in U.S. Dollars compounded annually from the
date hereof through the date of payment, less Retained Distributions and, (y) in
the case of subsection 5.2(D)(b)(2) above, (aa) any amount actually paid made by
an O Party in excess of the Purchase Price, plus (bb) interest on such excess
amount at the rate of 10% in U.S. Dollars compounded annually from the date such
excess amount is paid through the date of payment, less Retained Distributions),
or (in the case of the O Parties) return, or caused to be returned, the full
T-Bird Interest to the T Parties (or their successors in interest as determined
by law). As used in this subsection (D), "RETAINED DISTRIBUTIONS" means the
amount of all dividends, distributions, and funds from equity repurchases or
redemptions or other
-11-
reorganization transactions actually obtained by Buyer, directly or indirectly,
from its ownership of the T-Bird Interest in the period from the Closing until
the return of the T-Bird Interest to the T Parties.
The rights of any adversely affected Party under this subsection 5.2(D) shall be
subject to the following:
(aa) the returns of the Purchase Price and the T-Bird Interest required by
this subsection shall occur concurrently and as soon as reasonably practicable
after the election referred to above is made by the adversely affected Party;
(bb) (1) the return of any and all shares comprising the T-Bird Interest to
the T Parties shall include the return of the T do Brasil Shares and T-Bird
Shares originally purchased, directly and indirectly, by Buyer under the Stock
Purchase Agreement free and clear of all Liens, (2) at the time of such return,
T do Brasil shall not be subject to any Liabilities, or own any assets or
properties, that it was not subject to, or did not own, immediately prior to the
Closing, (3) the ability of T do Brasil to recommence pursuit of any T Claims
against an O Party which it could have brought against such O Party had the
Closing not occurred shall not have been impaired in any respect by any action
taken or omitted while T do Brasil was beneficially owned by any O Party, and
(4) the adversely affected Notice Party shall deliver to the other Notice Party
a written Notice (the "RETURN NOTICE") certifying to the effect of the above
clauses (1), (2) and (3) of this subsection (bb) not later than 10 business days
prior to the date of the return of the T-Bird Shares and the T do Brasil Shares
to the T Parties; provided that the inability of the O Parties to return the T
do Brasil Shares and the T-Bird Shares in compliance with clause (3) above due
to the filing and prosecution in accordance with the terms hereof of the Joint
Stipulations shall not prevent the exercise by the adversely affected Party of
its rights under this subsection (D) if in the Return Notice the adversely
affected Notice Party, on behalf of itself and its affiliates, unconditionally
consents to Arbitration of any T Claims and O Claims which cannot be brought in
the court of original jurisdiction that would have adjudicated such Claims but
for the filing and prosecution of the Joint Stipulations in accordance with the
terms hereof, and agrees to take all reasonably necessary actions, and waive all
defenses, that could otherwise operate to divest the Arbitrators of jurisdiction
to adjudicate such Claims; and
(cc) the rights of an adversely affected Party under this subsection (D)
may not be exercised unless either (x) concurrently with return to the T Parties
of the T-Bird Interest, the T Parties transfer such shares, for no
consideration, to a nominee, stakeholder or other third party directly or
indirectly subject to the direction of O and the conditions set forth in clauses
(1) through (5) of subsection (C)(viii) of this Section are satisfied in
connection with such transfer (and the proviso to such subsection shall also
apply), or (y) if such transfer does not occur because such conditions cannot be
met or the Parties are otherwise unable to reach agreement on the terms for such
a transfer, the Usufruct is permanently terminated not later than the time the
returns of the Purchase Price and the T-Bird Interest required by this
subsection occur.
(E) During any period when this Release is deemed to be null and void, but full
ownership of T do Brasil has not been returned to the T Parties in compliance
with subsection 5.2(D)(bb), the Parties agree that (x) all rights to recommence
pursuit of and enforce T Claims and defend against O Claims that otherwise would
inure to T do Brasil shall be deemed to be vested in Seller
-12-
or another T Party that is a controlled affiliate of T, provided that the O
Parties shall retain and have the right to interpose all defenses that they
would have had against T do Brasil, (y) all rights which the O Parties have to
recommence pursuit of and enforce O Claims against T do Brasil may be pursued
and enforced against Seller or the other T Parties, provided that such T Parties
shall retain and have the right to interpose all defenses that T do Brasil would
have had, and (z) no Party shall maintain any position, or raise any defense, in
any legal or administrative proceeding that is inconsistent with or would
frustrate the intent of this subsection 5.2(E). The Parties shall execute such
further assignments or instruments as in the reasonable opinion of counsel to T
or O may be reasonably necessary in the circumstances to give effect to the
provisions of this subsection 5.2(E).
5.3 This Release does not inure to the benefit of, and no Party is releasing
with respect to any matter, Caixa de Previdencia dos Funcionarios do Banco
do Brasil - Previ, Petros Fundacao Petrobras de Seguridade Social, Telos -
Fundacao Embratel de Seguridade Social, investment funds managed by
Globalvest Management Company L.P. and any affiliate thereof and ▇▇. ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇. Further, this Release does not inure to the
benefit of, and no Party is releasing, any person or entity (a) who is not
an O Party or a T Party or a controlled affiliate thereof, (b) with respect
to any matter that is not a T Claim or an O Claim, or (c) who may be
jointly liable for any liability or obligation that is released hereunder
in respect of an O Party or a T Party.
5.4 This Release may be executed in one or more counterparts and each
counterpart shall be deemed to be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument. This
Release shall become effective when each Party shall have received a
counterpart hereof signed by the other Parties. The Parties agree that T
Releasing Parties and O Releasing Parties may indicate their intent to be
bound by this Release through the delivery of proxies or agreements giving
T or O (as the case may be) general authority to enter into releases in
order to effectuate the settlement of any Pending Case, provided that
copies of such executed proxies and agreements shall be delivered by T and
O to each other not later than the date of this Release.
5.5 The provisions of this Release shall be binding upon, and inure to the
benefit of, the successors of the Parties hereto and to any controlled
affiliate of O to whom the T-Bird Interest may be directly or indirectly
transferred by Buyer, provided that (a) any such successor or controlled
affiliate of O shall be deemed to be an O Party hereunder, (b) any sale,
transfer or disposition of the T-Bird Interest by any O Party shall not
release the O Parties or the T Parties from their respective obligations
hereunder, and (c) no other transferee of the T-Bird Interest or of the
capital stock of Newco or T do Brasil shall have any rights hereunder. The
obligations of T and Seller, on the one hand, and O, CVC-O and Buyer, on
the other hand, under this Release shall be joint and several. The
obligations of the other O Parties and T Parties, respectively, under this
Release shall be several. The provisions of subsections 5.2(D) and (E)
hereof shall survive any nullification of this Release pursuant to the
other provisions of Section 5.2. In the event of any inconsistency between
the English version of this Release and any translation thereof to another
language, the English version shall control.
-13-
5.6 Upon the reasonable request of any Party, the other Parties will execute
such further instruments of release (in form and substance reasonably
satisfactory to the Parties being asked to execute such instruments, and
consistent with this Release) as counsel to the requesting Party may advise
in a particular case is necessary to further confirm the provisions of this
Release.
5.7 (a) Any notice given to any T Party pursuant to the provisions of this
Release shall be given to the following T Party (the "T NOTICE PARTY"):
TELESYSTEM INTERNATIONAL WIRELESS INC.
▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ West
16th Floor
Montreal, Quebec
Canada H3B 4W5
Attention: The General Counsel and Secretary
Facsimile number: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Pillsbury Winthrop LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile number: ▇▇▇-▇▇▇-▇▇▇▇
(b) Any notice given to any O Party pursuant to the provisions of this
Release shall be given to the following Party (the "O NOTICE PARTY"):
OPPORTUNITY FUND
Avenida Presidente ▇▇▇▇▇▇ 231,
28 andar
▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile number: (▇▇) ▇▇-▇▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Ninio, or acting general counsel
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇ andar
▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇
Facsimile number: (▇▇) ▇▇-▇▇▇▇-▇▇▇▇
-14-
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq. And
▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇ and
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ Mussnich & Aragao
Av. Almirante ▇▇▇▇▇▇▇, 32 andar
Rio de Janeiro- Centro CEP: ▇▇▇▇▇-▇▇▇
▇▇▇▇▇▇
Attention: Paulo ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Facsimile number: (▇▇) ▇▇-▇▇▇▇-▇▇▇▇
5.8 The O Parties may, in their sole discretion, treat the following event as
an additional Unwind Event for purposes of this Mutual Release (and none of
subclauses (e)(i)-(ix) of Section 5.2 (C) shall apply in respect thereof,
except for subclause (iii)), upon delivery to the T Notice Party of an
Unwind Notice not later than 10 months after the date hereof with respect
thereto:
The Barbados Registrar of Companies fails to issue, within 10 months after
the date hereof, a memorandum of satisfaction (or similar instrument
certifying discharge) with respect to each and every Lien on the capital
stock or assets of Newco, T do Brasil or T-Bird (the "SUBJECT CAPITAL STOCK
OR ASSET") that secures or guarantees the T Bank Debt,
provided that
(a) the O Parties will reasonably cooperate with the T Parties, upon
request, to complete the procedures necessary to cause the issuance of such
memoranda of satisfaction;
(b) the Unwind Notice includes an opinion or similar statement of
Barbados counsel to O (the "OPINION") to the effect that either (1) no such
memorandum of satisfaction has been issued by the Barbados Registrar of
Companies, or (2) if such memoranda of satisfaction (or similar instruments
certifying discharge) are no longer being issued by the Barbados Registrar
of Companies, that the records of the Registrar still reflect the existence
of a Lien described above on the title of the Subject Capital Stock or
Asset acquired, directly or indirectly, by Buyer pursuant to the Stock
Purchase Agreement; and
(c) the Unwind Notice certifies that the company whose capital stock
or asset is referred to in the Opinion is still a direct or indirect owner
of the T-Bird Shares and T-Bird (or a legal successor thereto) is still a
direct or indirect owner of material interests in one or more of the
Brazilian cellular telephone companies (or their successors) in which it
owns an interest as of the date hereof.
-15-
IN WITNESS HEREOF, this Release has been signed on behalf of each of the
parties hereto as of the date first written above.
TELESYSTEM INTERNATIONAL WIRELESS INC.
By: (signed)_______________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice-President and Chief Financial
Officer
TELESYSTEM INTERNATIONAL WIRELESS
(LATIN AMERICA) INC.
By: (signed)______________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney-in-fact
TPSA DO BRASIL LTDA.
By: (signed)______________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney-in-fact
OPPORTUNITY FUND
By: (signed)/(signed)_____________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Danta
Title: Director
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
HIGHLAKE INTERNATIONAL BUSINESS COMPANY LTD.
By: (signed)/(signed)_____________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Ninio
Title: Attorney
Name: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ Coutrim
Title: Attorney
CVC/OPPORTUNITY EQUITY PARTNERS L.P.
By: CVC/OPPORTUNITY EQUITY PARTNERS
LTD., its general partner
By: (signed)/(signed)_______________________
Name: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ Coutrim
Title: Authorised Signatory
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Dantas
Title: Authorised Signatory
ANNEX A
STOCK PURCHASE AGREEMENT DEFINITIONS
ANATEL: Agencia Nacional de Telecomunicacoes.
ANCILLARY AGREEMENTS: this Release, the Stock Power and the cross receipt
delivered pursuant to the Stock Purchase Agreement.
▇▇▇▇: Conselho Administrativo de Defesa Economica.
CLOSING: the closing of the transactions contemplated by the Stock Purchase
Agreement.
CVM: Comissao de Valores Mobiliarios.
GOVERNMENTAL ENTITY: any federal, state, municipal or other court,
legislature, governmental department, commission, board, bureau, agency,
tribunal, regulatory authority or instrumentality in Brazil, Canada, Barbados,
the United States, The Cayman Islands, or any other country or political entity,
territory or subdivision thereof.
LIABILITIES: all debts, liabilities, claims, demands, expenses, costs,
fines, penalties, commitments and obligations (whether accrued or not, known or
unknown, disclosed or undisclosed, fixed or contingent, asserted or unasserted,
liquidated or unliquidated).
LIENS: any security interests, liens, claims, pledges, options, rights of
first refusal, rights of first offer, tag along rights, restrictions on
transfer, drag along rights, encumbrancing agreements, charges, mortgages,
hypothecations, leases, subleases, licenses, adverse interests, encroachments,
title defects, title retention agreements, voting agreements or other
encumbrances of any nature whatsoever.
PERSON: an individual, partnership, joint venture, corporation, limited
liability company, trust, association, unincorporated organization, governmental
authority or any other entity or group (as defined in the Securities and
Exchange Act of 1934, as amended).
PURCHASE PRICE: the purchase price agreed between the Parties for the
indirect sale and purchase of T-Bird Interest pursuant to the Stock Purchase
Agreement.
STOCK POWER: any of the irrevocable stock powers, stock transfer forms,
amendments to articles, sub-delegations of transfer authority and other
authorizations for the registration of electronic stock transfers to be used to
transfer title to shares transferred pursuant to the Stock Purchase Agreement
and to subsequently register the transfer thereof, in forms acceptable to the
parties to the Stock Purchase Agreement.
T-BIRD: Telpart Participacoes S.A., a company organized under the laws of
Brazil.
USUFRUCT: The Private Instrument of Creation of Usufruct over Shares among
T do Brasil, T-Bird and Highlake do Brasil Ltda., dated as of the date hereof.
A-1
(signature page to the Mutual Release executed by and between, among others,
Telesystem International Wireless Inc. and
Opportunity Fund on the date first written above)
Telesystem Ltd.
By: (signed)___________________
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney in fact
Telesystem International Wireless Inc.
By: (signed)___________________
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice-President and CFO
Telesystem (Antilles) Corporation N.V.
By: (signed)___________________
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney in fact
Telesystem International Wireless Corporation N.V.
By: (signed)___________________
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney in fact
(signature page to the Mutual Release executed by and between, among others,
Telesystem International Wireless Inc. and
Opportunity Fund on the date first written above)
Telesystem International Wireless (Latin America) Inc.
By: (signed)___________________
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney in fact
TPSA do Brasil Ltda.
By: (signed)___________________
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney in fact
ClearWave N.V.
By: (signed)___________________
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney in fact
ClearWave Holdings B.V.
By: (signed)___________________
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney in fact
(signature page to the Mutual Release executed by and between, among others,
Telesystem International Wireless Inc. and
Opportunity Fund on the date first written above)
MobiFon S.A.
By: (signed)___________________
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney in fact
TIW Czech N.V.
By: (signed)___________________
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney in fact
Cesky Mobil a.s.
By: (signed)___________________
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney in fact
TIW Asia N.V.
By: (signed)___________________
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney in fact
(signature page to the Mutual Release executed by and between, among others,
Telesystem International Wireless Inc. and
Opportunity Fund on the date first written above)
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By: (signed)___________________
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney in fact
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
By: (signed)___________________
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney in fact
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By: (signed)___________________
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney in fact
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By: (signed)___________________
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney in fact
(signature page to the Mutual Release executed by and between, among others,
Telesystem International Wireless Inc. and
Opportunity Fund on the date first written above)
▇▇▇▇ ▇▇▇▇▇▇▇
By: (signed)___________________
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney in fact
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
By: (signed)___________________
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney in fact
Oscar de ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
By: (signed)___________________
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney in fact
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
By: (signed)___________________
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney in fact
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
By: (signed)___________________
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney in fact
(signature page to the Mutual Release executed by and between, among others,
Telesystem International Wireless Inc. and
Opportunity Fund on the date first written above)
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
By: (signed)___________________
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney in fact
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
By: (signed)___________________
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney in fact
▇▇▇▇▇ ▇▇ ▇▇▇▇ e ▇▇▇▇▇ Jr.
By: (signed)___________________
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney in fact
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
By: (signed)___________________
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney in fact
(signature page to the Mutual Release executed by and between, among others,
Telesystem International Wireless Inc. and
Opportunity Fund on the date first written above)
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Filho
By: (signed)___________________
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney in fact
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
By: (signed)___________________
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney in fact
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
By: (signed)___________________
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney in fact
▇▇▇▇▇ ▇▇▇▇▇
By: ______________________________
Name:
Title:
(signature page to the Mutual Release executed by and between, among others,
Telesystem International Wireless Inc. and
Opportunity Fund on the date first written above)
▇▇▇ ▇▇▇▇▇▇
By: ______________________________
Name:
Title:
(signature page to the Mutual Release executed by and between, among others,
Telesystem International Wireless Inc. and
Opportunity Fund on the date first written above)
▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Management Ltda.
By: (signed)___________________
---------------------------
Name: Paulo ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney in fact
Banco Opportunity S.A.
By: (signed)___________________
---------------------------
Name: Paulo ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney in fact
Opportunity Gestora de Recursos Ltda.
By: (signed)___________________
---------------------------
Name: Paulo ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney in fact
CVC/Opportunity Equity Partners Administradora de Recursos Ltda.
By: (signed)___________________
---------------------------
Name: Paulo ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney in fact
(signature page to the Mutual Agreement executed by and between, among others,
Telesystem International Wireless Inc. and Opportunity Fund)
CVC/Opportunity Equity Partners L.P.
By: (signed)___________________
---------------------------
Name: Paulo ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney in fact
CVC/Opportunity Equity Partners Ltd.
By: (signed)___________________
---------------------------
Name: Paulo ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney in fact
Opportunity Fund
By: (signed)___________________
---------------------------
Name: Paulo ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney in fact
Opportunity Asset Management Inc.
By: (signed)___________________
---------------------------
Name: Paulo ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney in fact
(signature page to the Mutual Agreement executed by and between, among others,
Telesystem International Wireless Inc. and Opportunity Fund)
Priv Fundo de Investimento em Acoes
By: (signed)___________________
---------------------------
Name: Paulo ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney in fact
Opp 1 Fundo de Investimento em Acoes
By: (signed)___________________
---------------------------
Name: Paulo ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney in fact
Futuretel S.A.
By: (signed)___________________
---------------------------
Name: Paulo ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney in fact
Opportunity Mem S.A.
By: (signed)___________________
---------------------------
Name: Paulo ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney in fact
(signature page to the Mutual Agreement executed by and between, among others,
Telesystem International Wireless Inc. and Opportunity Fund)
Newtel Participacoes S.A.
By: (signed)___________________
---------------------------
Name: Paulo ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney in fact
Telpart Participacoes S.A.
By: (signed)___________________
---------------------------
Name: Paulo ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney in fact
Telemig Celular Participacoes S.A.
By: (signed)___________________
---------------------------
Name: Paulo ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney in fact
Tele Norte Celular Participacoes S.A.
By: (signed)___________________
---------------------------
Name: Paulo ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney in fact
(signature page to the Mutual Agreement executed by and between, among others,
Telesystem International Wireless Inc. and Opportunity Fund)
Telemig Celular S.A.
By: (signed)___________________
---------------------------
Name: Paulo ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney in fact
Amazonia Celular S.A.
By: (signed)___________________
---------------------------
Name: Paulo ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney in fact
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Dantas
By: (signed)___________________
---------------------------
Name: Paulo ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney in fact
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Dantas
By: (signed)___________________
---------------------------
Name: Paulo ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney in fact
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ Coutrim
By: (signed)___________________
---------------------------
Name: Paulo ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney in fact
(signature page to the Mutual Agreement executed by and between, among others,
Telesystem International Wireless Inc. and Opportunity Fund)
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Ninio
By: (signed)___________________
---------------------------
Name: Paulo ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney in fact
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
By: (signed)___________________
---------------------------
Name: Paulo ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney in fact
▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇ Senna
By: (signed)___________________
---------------------------
Name: Paulo ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney in fact
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By: (signed)___________________
---------------------------
Name: Paulo ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney in fact
(signature page to the Mutual Agreement executed by and between, among others,
Telesystem International Wireless Inc. and Opportunity Fund)
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By: (signed)___________________
---------------------------
Name: Paulo ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney in fact
Wady Jasmin
By: (signed)___________________
---------------------------
Name: Paulo ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney in fact
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By: (signed)___________________
---------------------------
Name: Paulo ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney in fact
Cvc/Opportunity Equity Partners Fundo de Investimento em Acoes
By: (signed)___________________
---------------------------
Name: Paulo ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney in fact
(signature page to the Mutual Agreement executed by and between, among others,
Telesystem International Wireless Inc. and Opportunity Fund)
Tele Fundo de Investimento em Acoes
By: (signed)___________________
---------------------------
Name: Paulo ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney in fact
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Filho
By: (signed)___________________
---------------------------
Name: Paulo ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney in fact
SCHEDULE 1
TO MUTUAL RELEASE
T RELEASED PARTIES AND T RELEASING PARTIES
A. T RELEASED PARTIES
Telesystem Ltd.
Telesystem International Wireless Inc. ("T"), Telesystem (Antilles) Corporation
N.V. ("TAC"), Telesystem International Wireless Corporation N.V. ("TIWC"),
Telesystem International Wireless (Latin America) Inc. ("Seller"), TPSA do
Brasil Ltda. ("T do Brasil"), ClearWave N.V., ClearWave Holdings B.V., MobiFon
S.A., TIW Czech N.V., Cesky Mobil a.s. and TIW Asia N.V.
All past and present employees, officers and directors of T who are resident in
or citizens of Canada, the US, the Netherlands or the UK
All past and present directors, officers and employees of TAC, TIWC, Seller, T
do Brasil, ClearWave N.V., ClearWave Holdings B.V., MobiFon S.A., TIW Czech N.V.
and Cesky Mobil a.s. and TIW Asia N.V.
Tozzini Freire ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ and their partners and staff
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ e Advogados Associados and their partners and staff
Setembrino ▇▇▇▇▇▇▇▇ e Tome Advogados Associados and their partners and staff
Bruno & ▇▇▇▇▇▇▇▇▇▇ and their partners and staff
▇▇▇▇▇▇ e Advogados Associados and their partners and staff
Ribeiro e Ribeiro Advogados Associados S/C and their partners and staff
Advocacia Vellosa Filho S/C and their partners and staff
Trench, Rossi e Watanabe and their partners and staff
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ e ▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇▇, Advogados Associados and their partners and
staff
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
S.O. ▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, Advogados e Consultores and their partners and staff
Paulo ▇▇▇▇ ▇▇ ▇▇▇▇▇ Junior, Advocacia and their partners and staff, regarding
matters strictly related to T and its affiliates, and their interest in T-Bird
(and excluding matters related to its representation of ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇)
Walkers and their partners and staff, regarding matters strictly related to T
and its affiliates, and their interest in T-Bird (and excluding matters related
to its representation of ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇)
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and their partners and staff
▇▇▇▇▇▇▇ ▇▇▇▇▇ QC, regarding matters strictly related to T and its affiliates,
and their interest in T-Bird (and excluding matters related to his
representation of ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇)
All past and present officers, directors and employees of UBS Warburg
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ de ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇ e ▇▇▇▇▇ Jr.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Paulo Tanaki
▇▇▇ ▇▇▇▇▇▇
2
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
3
B. T RELEASING PARTIES
Telesystem Ltd.
T
TAC
TIWC
Seller
T do Brasil.
Clear Wave N.V.
ClearWave Holdings B.V.
MobiFon S.A.
TIW Czech N.V.
Cesky Mobil a.s.
TIW Asia N.V.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ de ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
4
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇ e ▇▇▇▇▇ Jr.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ White1
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇(1)
--------
(1) This person or entity shall not release until it executes and delivers to O
a power of attorney or other form of accession to the Release.
O PARTIES
TO BE RELEASING
Opportunity Asset Management Ltda.
Banco Opportunity S.A.
Opportunity Gestora de Recursos Ltda.
CVC/Opportunity Equity Partners Administradora de Recursos Ltda.
CVC/Opportunity Equity Partners L.P.
CVC/Opportunity Equity Partners Ltd.
Opportunity Fund
Opportunity Asset Management Inc.
Priv Fundo de Investimento em Acoes(1)
Opp 1 Fundo de Investimento em Acoes
Futuretel S.A.
Opportunity Mem S.A.
Newtel Participacoes S.A.
Telpart Participacoes S.A.
Telemig Celular Participacoes S.A.
Tele Norte Celular Participacoes S.A.
Telemig Celular S.A.
Amazonia Celular S.A.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Dantas
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ Coutrim
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇ Senna
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Bhering ▇▇▇▇▇▇▇
▇▇▇▇ Jasmin
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Cvc/Opportunity Equity Partners Fundo de Investimento em Acoes(1)
Tele Fundo de Investimento em Acoes(1)
TPSA do Brasil Ltda.(2)
TPSA Investment Corporation(2)
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇(3)
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇(3)
▇▇▇▇▇▇ ▇▇▇▇▇▇▇(3)
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇(3)
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇(3)
--------
(1) Limited to the undertaking that no O entity will bring any action or
proceeding acting as manager (gestor), administrator (administrador) or
otherwise acting on behalf of these entities which would otherwise be precluded
by the Mutual Release if an O Party were to bring such action or proceeding in
its own right, provided that nothing in this undertaking will affect claims of
the quotaholders in these entities in their individual capacities (except for
quotaholders otherwise bound by the Mutual Release). Also, each O entity that is
a quotaholder manager (gestor), or administrator (administrador) of this entity
is listed in this O Releasing Parties list.
(2) As of and following the Closing.
(3) This person shall not release until he executes and delivers to T a power of
attorney or other form of accession to the Release.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇(3)
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇(3)
▇▇▇▇ Arap(3)
(1) Limited to the undertaking that no O entity will bring any action or
proceeding acting as manager (gestor), administrator (administrador) or
otherwise acting on behalf of these entities which would otherwise be precluded
by the Mutual Release if an O Party were to bring such action or proceeding in
its own right, provided that nothing in this undertaking will affect claims of
the quotaholders in these entities in their individual capacities (except for
quotaholders otherwise bound by the Mutual Release). Also, each O entity that is
a quotaholder manager (gestor), or administrator (administrador) of this entity
is listed in this O Releasing Parties list.
(2) As of and following the Closing.
(3) This person shall not release until he executes and delivers to T a power of
attorney or other form of accession to the Release.
1/6
INDIVIDUALS AND ENTITIES
TO BE RELEASED
All past and present employees, officers (Diretores) and directors (Membros do
Conselho de Administracao) of Opportunity Asset Management Ltda., Banco
Opportunity S.A., Opportunity Gestora de Recursos Ltda., CVC/Opportunity Equity
Partners Administradora de Recursos Ltda., CVC/Opportunity Equity Partners L.P.,
CVC/Opportunity Equity Partners Ltd., Opportunity Fund and Opportunity Asset
Management Inc.
All past and present employees, officers (Diretores) and directors (Membros do
Conselho de Administracao) of Futuretel S.A. and Opportunity Mem S.A.
All past and present employees, officers (Diretores) and directors (Membros do
Conselho de Administracao) of Newtel Participacoes S.A., Telpart Participacoes
S.A., Telemig Celular Participacoes S.A., Tele Norte Celular Participacoes S.A.,
Telemig Celular S.A. and Amazonia Celular S.A., that were elected and/or
appointed by Opportunity Mem S.A. or hired by Directors appointed by Opportunity
Mem S.A. to such positions, provided that this list will not be construed as to
include any officer or director appointed at the request of any other
shareholder in Newtel Participacoes S.A. besides Opportunity Mem S.A., including
for the sake of clarity, without limitation, Caixa de Previdencia dos
Funcionarios do Banco - Previ, Fundacao Petrobras de Seguridade Social - Petros
and Fundacao Embratel de Seguridade Social - Telos.
2/6
Bulhoes ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇ & Advogados Associados
and their partners and staff.
▇▇▇▇▇▇▇, Mussnich & Aragao Advogados and their partners and staff.
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ Advogados Associados and their partners and staff.
Escritorio de Advocacia ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and their partners and staff.
Wald Associados Advogados and their partners and staff.
Siqueira ▇▇▇▇▇▇ Advogados and their partners and staff.
Mundim & Rolemberg Advogados Associados and their partners and staff.
Alcoforado Advogados Associados and their partners and staff.
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ Advogados & Associados S/C and their partners and staff.
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP and their partner and staff.
Boxalls Attorneys at Law and their partners and staff.
▇▇▇▇▇ ▇▇▇▇▇ QC
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ Senna
3/6
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇(1)
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ de ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ e ▇▇▇▇▇
▇▇▇▇▇▇ e Advogados Associados S/C and their partners and staff.
Escritorio de Advocacia ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ dos ▇▇▇▇▇▇ Associados and their partners
and staff.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Advogados Associados and their partners and staff.
Opportunity Asset Management Ltda.
Banco Opportunity S.A.
Opportunity Gestora de Recursos Ltda.
CVC/Opportunity Equity Partners Administradora de Recursos Ltda.
--------
(1) This person shall not be released until he executes and delivers to T a
power of attorney or other form of accession to this Release.
4/6
CVC/Opportunity Equity Partners Fundo de Investimento em Acoes2
CVC/Opportunity Equity Partners L.P.
CVC/Opportunity Equity Partners Ltd.
Opp 1 Fundo de Investimento em Acoes
Priv Fundo de Investimento em Acoes(2)
Tele Fundo de Investimento em Acoes(2)
Opportunity Fund
Opportunity Asset Management Inc.
Futuretel S.A.
Opportunity Mem S.A.
Newtel Participacoes S.A.
Telpart Participacoes S.A.
--------
(2) This does not affect claims that may be brought by any T Party against the
quotaholders in this entity in its individual capacity or in response to any
action that may be brought by this entity in its own right, except those which
would otherwise be precluded by the Mutual Release.
5/6
Telemig Celular Participacoes S.A.
Tele Norte Celular Participacoes S.A.
Telemig Celular S.A.
Amazonia Celular S.A.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Dantas
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ Coutrim
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Bhering ▇▇▇▇▇▇▇
▇▇▇▇ Jasmin
6/6
Provided, however, that none of the above listings or provisions will be
construed as to include Luiz ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
SCHEDULE 3
TO MUTUAL RELEASE
PENDING LITIGATION
LAWSUITS
No of case Court Parties Purpose
---------- ----- ------- -------
1
200134000253530 6th Plaintiffs: (1) Opportunity Declaration of the
Federal Mem S.A. ("Opportunity Mem") Legality of the
District and (2) Newtel Participacoes proposed
Court S.A. ("Newtel") alteration to
Telpart's Bylaws
Distrito Defendants: (1) Fundacao
Federal Sistel de Seguridade Social
("DF") ("Sistel") (2) Caixa de
Previdencia dos Funcionarios
do Banco do Brasil -- Previ
("Previ"), (3) Fundacao
Petrobras de Seguridade
Social -- Petros ("Petros"),
(4) Fundacao Embratel de
Seguridade -- Telos ("Telos")
(5) TIW DO BRASIL LTDA.
("TIW DO BRASIL") and (6)
Telpart Participacoes S.A.
("Telpart")
2 14th Plaintiffs: (1) Previ; (2) Dissolution of
2002.34000147504 Federal Petros and (3) Telos and (4) Newtel (2nd suit)
Court Fundacao dos Economiarios
Federais -- Funcef ("Funcef")
and (5) TIW DO BRASIL
Distrito Defendants: (1) National
Federal Agency for Telecommunications
("DF") -- Anatel ("Anatel"), (2)
Opportunity Mem (3) Newtel
(4) Telpart and (5) Sistel
3 11th Plaintiff: TIW DO BRASIL To prevent the
200251010124889 Federal replacement of the
District Defendant: Telpart members nominated
Court by Tiw do Brasil
Assistants of the Defendant: on the Board of
RJ Anatel, Telemig Celular S/A Directors of Tele
("Telemig Operadora" or "TC") Norte Celular
and Amazonia Celular S/A Participacoes S.A.
("Amazonia Celular" or "AC") ("Tele Norte
Participacoes" or
"TNCP") and
Telemig Celular
Participacoes S.A.
("Telemig
Participacoes or
"TCP") at the
Extraordinary
Shareholder
General Meetings
on 04.29.2002.
4
200151010083640 2nd Plaintiff: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇ To Prevent
Federal Senna ("▇▇▇▇▇▇▇ ▇▇▇▇▇") Registration of
District the Minutes of the
Court Defendant: President of the Meeting of the
Commercial Registry of the Board of Directors
RJ State of Rio de Janeiro of Telpart on
("Jucerja") 04.27.01.
Co-defendants of the joint
plaintiff Authority: TIW DO
BRASIL, Diogo ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, Previ, Petros
and Telos, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
Oscar De ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇
5
200101110484590 5th Plaintiff: ▇▇▇▇▇▇▇▇ Plea entered by
Civil ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Court ▇▇▇▇▇▇▇▇▇▇▇ in the
Defendants: TCP, TNCP, Commercial
DF ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ Registry of
VIKBERG ("GUNNAR"), ▇▇▇▇▇▇▇ Brasilia against
▇▇▇▇▇▇, ▇▇▇▇▇ DE ▇▇▇▇▇ the effectiveness
BERNARDES NETO, ▇▇▇▇▇ ▇▇▇▇▇▇▇ and the filing of
▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ the minutes of
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Munhoz, the Annual
Antonio ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Shareholders
▇▇ ▇▇▇▇, ▇▇▇▇ OTAVIO General Meetings
JUNQUEIRA ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ of TCP and TNCP
Dantas, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, held on 04.30.01.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
Lustosa, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Wellington Dantas ▇▇ ▇▇▇▇▇▇
and ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇.
6 1st Plaintiff: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ To prevent the
024010792331 Civil ▇▇▇▇▇▇▇▇ holding of the
Court Extraordinary
Shareholders
Minas Defendants: Telemig General Meeting
Gerais Operadora, TCP, ▇▇▇▇▇▇
▇▇▇▇▇▇▇
2
("MG") of Telemig
Operadora on
07.02.01 without
a prior voting
agreement by the
Board of
Directors of TCP.
7 24 th Plaintiff: Telpart Fees paid by
20010011142110 Civil Court Telpart to
Defendants: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Wellington
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Law
▇▇ ▇▇▇▇▇▇ and Wady Jasmin Firm
APPEAL NO 2002.001.18989
(▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇)
▇▇▇▇▇▇▇▇▇: TIW DO BRASIL
Apellees: Telpart, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Wady
Jasmin
8 4th Plaintiff: Telpart Declaration that
20020010677644 Business the right of
Court Defendant: TIW DO BRASIL withdrawal
claimed by TIW
RJ do Brasil is not
valid and that the
plaintiff is not
obliged to
reimburse the
value of the
defendant's shares
9 48th Plaintiff: Telpart Action in damages
20010011501330 Civil Court filed by Telpart
Defendant: ▇▇▇▇▇▇ ▇▇▇▇▇▇ and against its
RJ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ FRANCO former officers
according to
Assistants of the Plaintiff: deliberations
Newtel and Opportunity Mem. taken by Telpart
in TCP and
TNCP's
Extraordinary
Shareholders
General Meetings
3
held on 11.13.2001
10 9th Plaintiff: Newtel Acts carried out
20010010709760 Civil Court by Gunnar as
(Provisional) Defendants: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, president of the
RJ Funcef, TIW DO BRASIL and Board of
Telpart Directors of
Telpart
11 9th Plaintiff: Newtel Acts carried out
20010010473982 Civil Court by Gunnar as
(Common) Defendants: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, president of the
RJ TIW DO BRASIL, Telpart and Board of
Funcef Directors of
Telpart
12 9th Plaintiff: Newtel and Election of
20010010758770 Civil Court Opportunity Mem directors without
(Provisional) prior consent of
RJ Defendants: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Newtel (clause 4
Previ, Petros and Telos, TCP, of the
TNCP, TC, Amazonia Celular, Shareholders'
TIW DO BRASIL and Telpart Agreement of
Newtel)
13 9th Plaintiff: Newtel and Election of
20010010495310 Civil Court Opportunity Mem directors without
(Common) prior consent of
RJ Defendants: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Newtel (clause 4
Funcef, Previ, Petros and of the
Telos, TCP, TNCP, TC, shareholders'
Amazonia Celular, TIW DO agreement of
BRASIL and Telpart Newtel)
14 3rd Plaintiffs: TELESYSTEM Letter agreement
20010010054158 Civil Court INTERNATIONAL WIRELESS INC.
("TELESYSTEM") and TIW DO
RJ BRASIL
Defendants: Opportunity Mem,
Newtel and Opportunity Asset
Management Inc.
4
15
20000010937686 31st Plaintiffs: Previ, Funcef, Dissolution of
(Provisional) Civil Petros and Telos and Newtel
Court TIW DO BRASIL.
RJ
Defendants: Newtel,
2nd Opportunity Mem,
Business Opportunity Fund, Priv
Court FIA, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
RJ(1) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Sistel was excluded from
the action, which is the
subject of a Special Appeal
("RESP") brought by Sistel
in order to clarify the
issue.
16
20000010765991 31st Plaintiffs: Previ, Funcef, Dissolution of
(Common) Civil Petros and TIW DO BRASIL Newtel
Court
RJ Defendants: Newtel,
Opportunity Mem,
2nd Opportunity Fund, Priv
Business FIA, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
Court ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
RJ(2) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Sistel was excluded from
the action, which is the
subject of a Special Appeal
("Resp") brought by Sistel
in order to clarify the
issue.
17
2001.001.0535884 28th Plaintiffs: (1) TIW DO BRASIL To compel the
Civil (2) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Defendant to
Court (3) OSCAR DE ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ submit all matters
▇▇ ▇▇▇▇ (4) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ relating to the
(5) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ AND calling of
(6) ▇▇▇▇ ▇▇▇▇▇▇▇. meetings of the
Board of Directors
Defendant: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of Telpart for
resolution by the
Assistants of the Plaintiffs: Board of Directors
Previ, Petros and Telos. of Telpart
------------
(1) Definition of the district Court with jurisdiction for trying the action
depends upon a decision on the conflict over jurisdiction to be handed down by
the Special Body of the Court of Justice of Rio de Janeiro.
(2) Definition of the district Court with jurisdiction for trying the action
depends upon a decision on the conflict over jurisdiction to be handed down by
the Special Body of the Court of Justice of Rio de Janeiro.
5
18 24th Plaintiff: ▇▇▇▇▇▇▇ ▇▇▇▇▇ To suspend/
20010010534326 Civil annul the meeting
(Provisional) Court Defendants: (1) ▇▇▇▇ ▇▇▇▇▇▇▇ of the Board of
RJ Brand, (2) Diogo ▇▇▇▇ ▇▇▇▇▇▇▇ Directors of
▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, (3) GUNNAR Telpart on
VICKBERG, (4) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, 04.27.2001
(5) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, (6) ▇▇▇▇▇▇
▇▇▇▇▇▇, (7) ▇▇▇▇▇ DE ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and (8)
Telpart
19 24th Plaintiff: ▇▇▇▇▇▇▇ ▇▇▇▇▇ To suspend/
20010010439792 Civil annul the meeting
(Common) Court Defendants: (1) ▇▇▇▇ ▇▇▇▇▇▇▇ of the Board of
RJ Brand, (2) Diogo ▇▇▇▇ ▇▇▇▇▇▇▇ Directors of
▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, (3) GUNNAR Telpart on
VICKBERG, (4) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, 04.27.2001
(5) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, (6) ▇▇▇▇▇▇
▇▇▇▇▇▇, (7) ▇▇▇▇▇ DE ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and (8)
Telpart
21 19th Plaintiff: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ To suspend the
2001119130 Civil ▇▇▇▇▇▇▇▇ Extraordinary
Court Shareholders
Belem Defendants: (1) Amazonia General Meeting
Celular S/A, (2) Tele Norte of Amazonia
Celular Participacoes S/A Celular on
and (3) ▇▇▇▇▇▇ ▇▇▇▇▇▇ VINOF 07.04.2001
VICKBERG
22 3rd Plaintiff: OPP 1 Fundo de To suspend the
Archived Civil Investimento em Acoes Extraordinary
20010110447016 Court Shareholders
DF Defendant: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ General Meeting
et al. of Telemig
Celular on
07.02.2001
23 15th Plaintiff: Newtel Suspend TIW do
Archived Civil Participacoes S/A Brasil's rights to
20020110203397 Court vote in Telpart
DF Defendant: TIW DO BRASIL LTDA.
24 2nd Plaintiff: TIW DO BRASIL LTDA. Action to void
20020011531657(3) the transfer of
certain
------------
(3) Not yet served. Can, upon signature of Mutual release, be withdrawn before
service.
Business transfer of certain
Defendants: Previ, Newtel Telpart shares to
RJ Participacoes S/A and Newtel.
Opportunity MEM S/A
25 Cayman Plaintiffs: TELESYSTEM Action in
Cause 229 INTERNATIONAL WIRELESS INC., damages for
TIW DO BRASIL LTDA. breach of contract
and fraudulent
Defendants: CVC/Opportunity misrepresentation
Equity Partners L.P.,
CVC/Opportunity Equity Partners
Ltd., Opportunity Fund,
Opportunity Asset Management
Inc., ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
26 Cayman Plaintiffs: Telesystem Action to restrain
Cause 398 International Wireless Inc., use of
TIW do Brasil Ltda., ▇▇▇▇ confidential
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇. documents, and
related contempt
Defendants: CVC/Opportunity of court
Equity Partners L.P., proceedings, and
CVC/Opportunity Equity Partners appeals
Ltd, Opportunity Fund,
Opportunity Asset Management,
Hunter & Hunter
ADMINISTRATIVE CASES
Case No Jurisdiction Parties Objective
1 Board of Claimants: Fundacao To annul the transfer of
535000063822000 ANATEL(4) dos Economiarios shareholdings that Previ,
Federais - Funcef Petros and Funcef held in
("Funcef"), Caixa de Telpart and which were
Previdencia dos transferred to Newtel.
Funcionarios de Banco
do Brasil - Previ (Dissolution of Newtel)
("Previ"), Fundacao
Petrobras de
Seguridade Social -
Petros ("Petros"), and
Tiw do Brasil Ltda.
("TIW do Brasil").
Interested Parties:
Telpart Participacoes
S.A. ("Telpart") and
Newtel Participacoes
S.A. ("Newtel")
2 ANATEL Proceedings
53.500.003037/2002 commended proprio
Interested Parties: motu by Anatel further
Opportunity Mem S.A. to letters from TIW do
("Opportunity Mem"), Brasil to inquire as to
Newtel, Telpart, Tele the ownership structure
Norte Celular of Opportunity Mem
Participacoes S.A. and the concessionaire
("Tele Norte companies (Telemig
Participacoes" or Operadora and
"TNCP"), Telemig Amazonia Celular) to
Celular Participacoes CVC/Opportunity
S.A. ("Telemig Equity partners LP
Participacoes" or ("CVC LP").
"TCP"), Telemig
Celular S/A ("Telemig
Operadora" or "TC")
and Amazonia Celular
S/A ("Amazonia
Celular" or "AC").
_____________________
(4) National Agency for Telecommunications - Anatel ("ANATEL").
8
3 JUCERJA(6) Claimants: TIW do Administrative case
2001/097.246-3 Brasil and Telpart referring to the filing
of the minutes of an
Attachments: Respondent: Extraordinary General
2001/065.128-7; JUCERJA Meeting of Telpart held
2001/097.257-9; on 06/08/2001(7)
2001/085.137-2
and 135.007-5(5).
4 ANATEL Claimant: Newtel Accusation brought by
535500.003038/02 Newtel requiring ANATEL
(ANATEL) Respondents: TIW do to investigate (i) the
(Reference Brazil, Previ, Petros, transfer of control over
Number) Fundacao Embratel de the concessionaires
Seguridade Social -- Telemig Celular and
Telos ("Telos"), Amazonia Celular as a
Globalvest Management result of an alleged
Company LP agreement between the
("Globalvest"), Globalvest Funds, Previ,
foreign funds managed Petros, Telos and TIW do
by Globalvest(8), Brasil and (ii) exercise
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, of voting rights by the
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ Globalvest Funds at
Destrutti, ▇▇▇▇▇▇▇ Annual and Extraordinary
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ General Meetings of Tele
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Norte Participacoes and
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Telemig Participacoes.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇
Guizeline, ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇(9).
Interested Parties:
---------------
(5) These administrative cases have the same purpose, in other words to file the
Extraordinary General Meeting of Telpart held on 06/08/2001.
(6) Commercial Registry of the State of Rio de Janeiro ("JUCERJA").
(7) This Extraordinary General Meeting had the following agenda: (i) removal of
the directors ▇▇▇▇ ▇▇▇▇▇▇▇ Brand and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇; and (ii)
election of new directors to replace them, if item (i) was approved.
(8) 20/20 Latin America Fund, Brazvest Fund Delaware LLC, Globalvest Hedge
Delaware LLC., Globalvest Value Holdings Delaware LLC., Latinvest Fund Delaware
LLC., Latinvest Holdings Delaware LLC., Latinvest Partners Delaware LLC.,
Stichting Bedrijfspensioenfonds Voor De Metal Em Technische Bedrijfstakken,
Utilivest II Delaware LLC., Utilivest III Delaware LLC. ("Globalvest Funds").
(9) Members of the Boards of Directors elected by TIW/Globalvest Funds.
9
Newtel, Telpart,
Telemig Participacoes,
Tele Norte
Participacoes, Telemig
Operadora and
Amazonia Celular.
166.3
5 ANATEL Brought by Act no. Case for Investigation of
535000000652002 001, of 01.10.2002, Failure to Comply with
of ANATEL's General Obligations ("▇▇▇▇")
Management of Fixed brought with a view to
Communications investigating alleged
changes in the
Interested Parties: shareholdings in TCP,
Newtel, Telpart, as well as eventual non-
Telemig Participacoes, compliance with the
Telemig Operadora shareholders' agreement
Globalvest, Globalvest of Newtel
Funds and TIW do
Brasil
6 ANATEL Brought by Act no. ▇▇▇▇ brought with a
535000000662002 002, of 01.10.2002, view to investigating
of ANATEL's General alleged changes in the
Management of Fixed shareholdings in TNCP,
Communications as well as eventual non-
compliance with the
Interested Parties: shareholders' agreement
Newtel, Telpart, Tele of Newtel.
Norte Participacoes,
Amazonia Celular,
Globalvest, Globalvest
Fund and TIW do
Brasil
7 CVM(10) Claimant: Banco Failure to publish in
Administrative Opportunity accordance with CVM
Case RJ2001/06448 Instruction no 69/87 --
Interested Parties: Administrative case
or Telemig brought with a view to
Participacoes, Tele (i) investing an alleged
Administrative Norte Participacoes, agreement between the
Inquiry Globalvest Funds, Globalvest Funds, Previ,
_____________________
(10) Securities and Exchange Commission-CVM ("CVM")
10
RJ2001/09705 TIW do Brasil, Petros, Telos and TIW
Newtel, Telpart, do Brasil; and (ii)
Telemig Operadora, exercise of voting rights
Amazonia Celular by the Glovalvest Funds
in Annual and
Extraordinary General
Meetings of Tele Norte
Participacoes and
Telemig Participacoes(11)
8 Federal Claimant: Leivi Representation of
116000001032200104Public Abuleac(13) minority shareholder of
(12) Prosecutor's TCP with respect to (i)
Office Interested Parties: an alleged agreement
Regional Newtel, Telpart, between the Globalvest
Attorney's Telemig Operadora, Funds, Previ, Petros,
Office of Telemig Participacoes, Telos and TIW do
the Federal Globalvest Funds and Brasil; and (ii) the
District TIW do Brasil exercise of voting rights
by the Globalvest Funds
in Annual and
Extraordinary General
Meetings of Tele Norte
Participacoes and
Telemig Participacoes.
2003.900.376.54 ANATEL TPSA do Brasil Ltda. Petition requesting the
nihil obstat by the
"Conselho Director: to
the consequences of a
possible favorable
decision to TIW do
Brasil in matters
subject to court
resolution that may cause
a shift of corporate
control that, according
to section 6 of
Resolution no. 101,
depends on Anatel's prior
approval.
-------------------
(11) On 04.18.2002, the CVM and Globalvest signed a Consent Decree by which
Globalvest undertook to pay the amount of R$ 50.000,00, it having been decided
that, on payment of this amount, the inquiry would be permanently archived.
(12) The parties acknowledge and agree that none of the T Parties or the O
Parties has any power to cause the termination of this Pending Case at the
current time and may not have the power to do so in the future.
(13) Minority shareholder of TCP.
11
SCHEDULE 3.5
1. This Schedule 3.5 to the Mutual Release is intended to set out the manner
in which Section 3 of the Mutual Release relating to Pending Cases in the
Cayman Islands shall be implemented.
2. The terms of the Mutual Release, except as expressly provided for in this
Schedule 3.5, shall apply to the Cayman Proceedings (as defined below) or
to any issues arising in or from the Cayman Proceedings.
3. It is agreed between Telesystem International Wireless Inc and TPSA Do
Brasil Ltda on the one hand (together, the "TIW Cayman Parties"), and
CVC/Opportunity Equity Partners LP, CVC/Opportunity Equity Partners Ltd,
Opportunity Fund, Opportunity Asset Management Inc., ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ on the other hand (together, the
"CVC/Opportunity Cayman Parties"), in respect of the litigation in the
Cayman Islands under cause number 229 of 2001 (and all appeals to the Court
of Appeal in that cause) and cause number 398 of 2001 (and all appeals to
the Court of Appeal in that cause and the contempt proceedings arising from
that cause and any appeals in those contempt proceedings) (together, the
"Cayman Proceedings") that:
a) The TIW Cayman Parties shall not seek to appeal or lift the stay of
cause number 229 of 2001, unless an Unwind Event occurs. If an Unwind
Event has not taken place within 36 months hereof the Parties shall
execute and file a Consent Order to dismiss these proceedings with no
order as to costs.
b) The TIW Cayman Parties will not oppose any application to the Grand
Court of the Cayman Islands (or any appeal therefrom) by the
CVC/Opportunity Cayman Parties to vary the terms of the Orders of the
Grand Court of the Cayman Islands dated 28, 29, 30 or 31 October 2001
and/or 14, 15 or 16 November 2001, so as to remove any remaining
prohibition as to the use of the TIW Document as therein defined by
the CVC/Opportunity Cayman Parties. The CVC/Opportunity Cayman Parties
will not seek any relief or order of any nature howsoever against the
TIW Cayman Parties (save as set out herein regarding costs) in any
such application or any appeals there from, unless an Unwind Event
occurs. The CVC/Opportunity Cayman Parties undertake not to use the
TIW Document in any claim against the TIW Cayman Parties or to make
use of that document in any way with the intent of causing any damage
to the TIW Parties, unless an Unwind Event occurs.
c) As to the contempt of court proceedings brought by the CVC/Opportunity
Cayman Parties against the TIW Cayman Parties and ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
in cause number 398 of 2001, the CVC/Opportunity Cayman Parties shall
within 14 days of this agreement apply to the Grand Court of the
Cayman Islands for leave to withdraw the notice of motion for
contempt of court against the TIW Cayman Parties and ▇▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇ with no order as to costs.
d) The CVC/Opportunity Cayman Parties have sought conditional leave to
appeal to the Privy Council the finding of the Court of Appeal set out
in its Judgment delivered on 29 November 2002 in appeal number 5 of
2002 (the "CVC/Opportunity Contempt") that they were in contempt of
court from 7-12 November 2001. The TIW Cayman Parties will technically
be Respondents to the Appeal but, subject to sub-paragraph (i), will
not enter any appearance in, or in any way contest (or assist any
other party in any way howsoever in contesting), such appeal in the
Court of Appeal or in the Privy Council; and the CVC/Opportunity
Cayman Parties will not seek any relief or order howsoever (save as
set out herein regarding costs) against the TIW Cayman Parties in such
appeal and will not take any step in the conduct of such appeal with
the intent to cause any damage to the TIW Cayman Parties, unless an
Unwind Event occurs; provided that the exercise by ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ of his right to contest, if any, such appeal shall not
constitute a breach by the TIW Cayman Parties of its obligations
hereunder.
e) Save as set out herein the TIW Cayman Parties and the CVC/Opportunity
Cayman Parties agree that they shall take no further steps against
each other in cause number 398 of 2001 or any appeals in that cause.
f) The TIW Cayman Parties and the CVC/Opportunity Cayman Parties agree
that they shall not enforce against the CVC/Opportunity Cayman Parties
and the TIW Cayman Parties respectively:
(1) any costs orders made in cause number 229 of 2001 or in any
appeals in that cause; and
(2) any costs orders made in cause number 398 of 2001 or any appeals
in that cause, other than as set out below.
This covenant is not intended to operate as a release of or to affect
any person other than the TIW Cayman Parties and the CVC/Opportunity
Cayman Parties and is agreed by the Parties hereto upon the
understanding that the CVC/Opportunity Cayman Parties will proceed to
directly enforce costs orders only against any non-TIW Cayman Parties.
g) The TIW Cayman Parties and the CVC/Opportunity Cayman Parties shall
use their best endeavors to agree with the Taxing Officer of the Grand
Court on suspensions of the taxations of costs in each of cause number
229 of 2001 and Civil Appeal No. 15 of 2001 lasting for a period of 12
months or pending an Unwind Event whichever be sooner. If within 12
months hereof there has been no Unwind Event the parties will ask the
Taxing Officer to terminate the said taxations and return all
materials in
2
connection therewith to the Parties. If the Taxing Officer declines to
agree to suspend the said taxations and issues certificates thereon
the party entitled to enforce such certificate(s) shall only enforce
any such certificate(s) in the event of an Unwind Event.
h) The CVC/Opportunity Cayman Parties may proceed to seek orders for
costs and to tax their costs under such costs orders in Cause No. 398
of 2001 or in any appeal in any way connected thereto and the TIW
Cayman Parties may technically be Respondents to any such applications
(and debtors under any such Orders). The TIW Cayman parties agree that
they will not oppose any such costs applications or file objections to
any bills on any such taxations and the CVC/Opportunity Cayman Parties
agree that they will not seek to enforce directly against the TIW
Cayman Parties any such order(s) for the payment of costs or any such
certificate(s) of taxation, including, without limitation, in
circumstances where the CVC/Opportunity Cayman Parties are unable to
obtain recovery of such costs or any part thereof from non-TIW Cayman
Parties.
i) The CVC/Opportunity Cayman Parties acknowledge that the firm of
attorneys, Walkers, are on the Court record in cause 398 of 2001 as
the attorneys for the TIW Cayman Parties and ▇▇. ▇▇▇▇▇▇▇. The
CVC/Opportunity Cayman Parties will not object to the continued
representation of ▇▇. ▇▇▇▇▇▇▇ in cause 398 by Walkers. The
CVC/Opportunity Cayman Parties will not object to the continued
representation of the TIW Cayman Parties by Walkers in cause 398 of
2001 to carry out the terms of this agreement or after an Unwind
Event. In the event that ▇▇. ▇▇▇▇▇▇▇ wishes to take a course of action
which is different to the course which the TIW Cayman Parties have
agreed to take pursuant to this agreement, such action on the part of
▇▇. ▇▇▇▇▇▇▇ will not constitute any breach of this agreement by the
TIW Cayman Parties.
3
SCHEDULE 4.1
DISPUTE RESOLUTION
(i) Any dispute, controversy or claim between the Parties hereto arising
out of or relating to this Release (but not the O Claims and T Claims, except as
specifically provided in this Release) or the breach, termination or validity
hereof (excluding any third party claim requiring the participation of a third
party) ("Dispute"), will, on the request of any Party hereto, except as provided
in this Schedule 4.1, be exclusively settled by arbitration in accordance with
the then-prevailing International Arbitration Rules (the "Rules") of the
International Centre for Dispute Resolution division of the American Arbitration
Association ("ICDR") except as modified herein. The place of arbitration shall
be
New York,
New York and the arbitration will be conducted in English. There
will be three impartial and independent arbitrators. For the purpose of any
arbitration, the O Parties will act as one party and the T Parties will act as
one party. The O Parties, on the one hand, and the T Parties, on the other hand,
will each appoint one arbitrator within 15 days after receipt by respondents of
a copy of the demand for arbitration and the two arbitrators so selected will
select the third arbitrator within 15 days of the appointment of the second
arbitrator. Any arbitrator not timely selected will be appointed by the ICDR in
accordance with the Rules. Any arbitrator appointed by the ICDR will be (A) a
retired judge, or (B) a practicing attorney with no less than fifteen years of
experience in international transactions, and in any case an experienced
arbitrator. The arbitrators will permit and facilitate such pre-hearing
discovery and exchange of documents and information to which the parties agree
in writing or that the arbitrators determine is relevant to the Dispute between
the Parties, taking into account the needs of the Parties and desirability of
making discovery expeditious and cost-effective. Any discovery permitted
hereunder will be completed within 30 days from the date of the appointment of
the third arbitrator, unless the parties agree otherwise or the arbitrators
extend such time period for good cause shown. By agreeing to arbitration, the
parties do not intend to deprive any Court (as defined below) of its
jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or
other order in aid of arbitration proceedings and the enforcement of any award.
Without prejudice to such provisional remedies as may be available under the
jurisdiction of a Court, the arbitral tribunal will have full authority to grant
provisional remedies and to direct the parties to request that any Court modify
or vacate any temporary or preliminary relief issued by such Court, and to award
damages for the failure of any party to respect the arbitral tribunal's orders
to that effect. Any controversy concerning the jurisdiction of the arbitral
tribunal, including but not limited to whether a Dispute is arbitrable, whether
arbitration has been waived, or as to the interpretation or enforceability of
this agreement to arbitrate, will be decided by the arbitrators. The arbitration
will be governed by the United States Arbitration Act, in Title 9 of the United
States Code. In rendering an award, the arbitrators will follow the substantive
law of
New York. The decision and award of the arbitrators, which will be in
writing and which will state the findings of fact and conclusions of law on
which it is based, will be final, binding and nonappealable to the fullest
extent permitted by law.
(ii) Each party unconditionally and irrevocably agrees to submit to the
exclusive jurisdiction of the state and federal courts located in
New York,
New
York (the "Courts") for the
purpose of any proceedings arising out of or concerning any Dispute (including
an action to compel arbitration or for preliminary relief in aid of
arbitration), except that an interim or final arbitral award may be enforced in
any Court, or in any other court having jurisdiction over a party or its assets.
Each party unconditionally and irrevocably (1) waives any objections which they
may have now or in the future to the jurisdiction of the Courts, (2) agrees not
to attempt to deny such personal jurisdiction by motion or other request for
leave from any such Court, (3) agrees that all claims with respect to any
Disputes may be heard and determined in such Courts, (4) agrees that service of
process, summons, notice or document by hand delivery or U.S. registered mail or
delivery through an international courier service (with proof of receipt) at the
address specified for such party in Section 5.7 (a) and (b) shall be effective
service of process for any action, suit or proceeding brought against such party
in any such Court, and (5) waives the defense of an inconvenient forum.
